President Erdogan is campaigning for the decision of the Court of Cassation.
First the summary: In the elections last May, the lawyer and human rights activist Can Atalay was elected to parliament as a member of the Turkish Workers’ Party. At the time of the election, he was wrongly imprisoned and was not released despite winning the mandate. Atalay was one of eight defendants in the Gezi trial. In spring 2022, he was sentenced to 18 years in prison for aiding and abetting an attempted overthrow of the government.
On October 25, 2023, the Turkish Constitutional Court ruled that the imprisonment of human rights lawyer Can Atalay was unlawful. The constitutional judges ruled that both his right to be elected and to be politically active and his right to personal freedom and security had been violated.
The decision was sent to the competent court in Istanbul, which had to reopen the case. The 13th Criminal Court in Istanbul forwarded the Can Atalay case to the 3rd Criminal Chamber of the Court of Cassation to evaluate the decision of the Constitutional Court.
The 3rd Criminal Chamber decided in the late afternoon of November 8, 2023, that Can Atalay’s prison sentence should be upheld and that Can Atalay’s parliamentary seat should be permanently revoked. It also ruled that the Constitutional Court had exceeded its powers and thus violated the Constitution by reviewing a final and legally binding judgment. In addition, a criminal complaint was filed against the members of the Constitutional Court who voted in favor of the release (9 out of 14) at the General Prosecutor’s Office of the Court of Cassation.
President Erdogan, who did not speak for almost 2 days, commented on the issue on his way back from Uzbekistan. Responding to a question, Erdogan said, “First of all, no one can deny that the Court of Cassation is one of the highest courts. Now, unfortunately, the Constitutional Court has started to make several mistakes one after another. This worries us very much. The decision of the Court of Cassation can never be discarded or set aside…” and thus sides with the Court of Cassation.
Turkey is now in a constitutional crisis.
Create a problem or an enemy and then convince everyone that only you have the solution to this problem or that you alone can defeat this enemy… one of Erdogan’s favorite strategies.
The decision of the highest instance, the Constitutional Court, is not recognized by the Court of Cassation. Turkey’s rule of law is in a coma and now has to be artificially ventilated. The judges in the Court of Cassation have Erdogan’s support. Erdogan’s support is a threat to Turkey to pull the plug and let the rule of law die for good.
Modus operandi à la Erdogan!
Erdogan will exacerbate the problem as much as possible. Initiate controlled social discussions and divide society, e.g. emphasize that Can Atalay is a “terrorist” and that the parliament has not fulfilled its duties from the beginning by not revoking Atalay’s mandate as a deputy.
Or to draw attention to the problems in the inter-institutional relations of the two courts and to point out that the Court of Cassation has the right to oppose the decision of the Constitutional Court and thus strengthen the revolting party. Say that the Court of Cassation has the right to insist on the solution to this problem.
The solution: a constitutional reform or, even better, a new constitution.
Moreover, the Constitutional Court is a thorn in Erdogan’s side. Even if the 15 judges (only men) were elected by Erdogan or with his consent. It can still step out of line. And we all know that such “grievances” and “disorder” are not welcomed by autocrats like Erdogan. Just imagine what it would mean for Erdogan and his power apparatus if the Constitutional Court were to decide in the future that Osman Kavala or Selahattin Demirtas should also be released. Or all the political prisoners who were arrested after the attempted coup in 2016 and are still being arbitrarily and unjustly detained…
Erdogan will be 70 years old next year. It is no secret that he is not in top health. But even if his health should allow it, Erdogan, according to the constitution, can no longer run as a candidate in the presidential elections in 2028.
We know that Erdogan is very good at making long-term plans and implementing them step by step. It would therefore not be wrong to say that Erdogan is also developing strategies to overcome the constitutional limit of two presidential terms of five years each. This would of course be possible with a new constitution.
Since 2011, Erdogan has repeatedly put his desire for a new constitution for Turkey on the agenda. “My wish and dream are to free Turkey from the shame of the coup constitution (1982) and to create a new, civil constitution that embraces today and tomorrow in language and content and is worthy of the Turkish century. We consider it a disgrace for our country and our democracy to talk about the Turkish century in the shadow of the coup constitution…” were Erdogan’s words in the speech on the occasion of the opening ceremony of the judicial year on September 1, 2023.
Today (November 10), Erdogan also made it clear that the solution to the current constitutional crisis is a new constitution. President Erdoğan also sent a message to those in the AKP’s ranks who expressed their unease on the issue. “If some friends from my party criticize the decision of the Court of Cassation and praise the Constitutional Court, they are also doing something wrong.” He continued, saying, “The decisions of the judicial authorities can of course be debated. This time we are dealing with a different problem. We are not a party to this debate, but an arbiter. The solution to this problem lies in the laws. But our laws are inadequate in this respect. It is necessary to give our country a new constitution as soon as possible. We hope that a common understanding will be reached in parliament and work on the new constitution will begin.
The CHP, with its newly elected leader Özgür Özel, has called on its deputies to protest in parliament. Individual MPs from the opposition parties are talking about a “coup” against the constitution. Some bar associations have organized a protest march in Ankara today. Whether the opposition parties will be able to respond to Erdogan’s moves together will become clear in the coming days. As of today: unorganized and no plan to prevent Erdogan’s pursuit of a new constitution has been formulated for him.
