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Scandalous Can Atalay decision of the Supreme Court: The decision of the Constitutional Court has no legal validity!
IMRAN KHAN DECISION REFERENCED
The chamber described the Constitutional Court’s decision as “juristocratic behavior”.
In its reasoned decision, the Supreme Court referred to the Pakistan Constitutional Court’s decision regarding former Prime Minister Imran Khan and argued that the Constitutional Court was vested with unlimited powers.
The relevant section of the Supreme Court decision reads as follows:
“There is no obligation to publish in the Official Journal the decisions adopted by the Constitutional Court as a result of individual applications which should lead to subjective results among the applications submitted to it. Although this obligation does not exist, the decisions of the Constitutional Court are based on individual requests, which go beyond its legal powers and have no legal value. By publishing some of its decisions in the Official Gazette, the objective effect of the decisions of the Constitutional Court is sought, these decisions are removed from supervision and this situation is made possible. The Constitutional Court is intended to become a guardian authority as a super-appeal authority over the judicial institutions, with an authority that does not belong to it Constitution received. With the different business decision on convict Serafettin Can Atalay dated November 8, 2023, our department drew attention to the legal gap in the control of this arbitrariness and the arbitrary decisions that make the provisions of the Constitution unenforceable due to this lack of control, interpreted in a way that similar to the jurisdiction. In this respect, the claim that decisions of the Constitutional Court that render the provisions of the Constitution ineffective are not reviewable and give it unlimited powers also poses great dangers. For example, in Pakistan, the opposition, which gained a majority in parliament, held a vote of no confidence in 2022 and wanted to replace the elected and legitimate Prime Minister Imran Khan; Pakistan’s Constitutional Court then decided to hold a vote of no confidence as part of its efforts to shape policy, ignoring Prime Minister Imran Khan’s decision to dissolve parliament and hold early elections. As part of the no-confidence vote resulting from this decision, which triggered a political crisis, Imran Khan became Pakistan’s first prime minister to be dismissed. “Imran Khan’s position as prime minister was withdrawn with a vote of no confidence from the opposition, which, thanks to the Constitutional Court’s decision, gained a majority in the Pakistani parliament.”
BACKGROUND OF THE CASE
The 13th High Criminal Court in Istanbul ruled that Can Atalay should be sentenced to 18 years in prison for “assisting in the attempt to overthrow the government of the Republic of Turkey” and should be arrested for this crime.
The Istanbul Regional Court found the district court’s decision to be legal.
The lawyers of Can Atalay, who was elected Hatay MP in the general election in the 28th term of TİP, asked the Supreme Court to suspend the proceedings against their client and release him due to his election as a member of parliament. .
While the proceedings following the application were still ongoing, the 3rd Criminal Chamber of the Supreme Court of Appeal approved the 18-year prison sentence imposed on Can Atalay in the Gezi Park case.
After the Supreme Court rejected the request, Atalay filed an individual petition with the Constitutional Court, and the court ruled that Atalay’s rights to “election and political activity” and “personal freedom and security” were violated and that Atalay be retried and released should.
The file sent by the Constitutional Court requesting the retrial and release of Atalay was forwarded to the 3rd Criminal Chamber of the Supreme Court of Appeal without a decision from the local court, and the said Criminal Chamber did not comply with the decision on the violation.
SECOND VIOLATION DECISION OF THE CONSTITUTIONAL COURT
Can Atalay’s lawyers filed an individual application for the second time for non-compliance with the Constitutional Court’s infringement decision.
In the second petition, the Supreme Court ruled that Atalay’s rights to “eligibility and participation in political activities,” “personal freedom and security,” and “filing an individual petition” were violated.
The Constitutional Court concluded that “the right to individual complaint provided for in Article 148 of the Constitution was violated by the non-implementation of the previously issued violation decision” and ruled that the decision should be referred to the competent court to eliminate the consequences of the violation .
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