Ozan Örmeci Makaleler (Ozan Örmeci Articles): Judicial Crisis in Türkiye

Although Türkiye successfully and peacefully organized presidential and parliamentary elections in May 2023 and the Turkish people decided to go on with President Recep Tayyip Erdoğan’s rule and AK Parti’s lead in the parliament, the lack of a coherent democratic political system frequently leads to political crises in the country. A new crisis occurred these days due to a legal disagreement between two top courts in the country. This is often labeled as a “judicial crisis”[1] or a “constitutional crisis”[2] by the Turkish media. In this piece, I will summarize the most recent political crisis in Türkiye.

The cause of the crisis is the controversial legal situation of the imprisoned deputy of the Workers’ Party of Turkey (TİP), Can Atalay. Atalay has been in prison since April 2022 on charges of “attempting to overthrow the government” during the 2013 anti-government protests, known as the Gezi Park Protests.[3] Atalay was elected a member of the parliament from the democratic socialist TİP in the May 14, 2023 general elections from the city of Hatay. Atalay’s appeal to the Turkish Constitutional Court (Anayasa Mahkemesi) eventually led to a decision in favor of himself and the highest court of Türkiye decided that Atalay’s continued detention violated his rights to personal liberty, parliamentary immunity, and fair trial, and thus, ordered his immediate release.[4]

While pro-democratic groups saw this as progress for returning to a democratic regime in Türkiye, the Court of Cassation (Yargıtay) issued a ruling stating that the Constitutional Court’s decision to release Atalay would not be implemented and filed a criminal complaint against the members of the Constitutional Court who decided on Atalay’s release.[5] The Union of Turkish Bar Associations (Türkiye Barolar Birliği/TBB) interpreted this as “a revolt against the constitutional order in Türkiye” and demanded the immediate resignation of the Court of Cassation’s judges.[6] CHP’s newly elected leader Özgür Özel also condemned the decision and described the development as a “coup against the constitution”.[7] CHP also started a parliamentary watch to protest the decision.[8] Other opposition parties also condemned the decision. For instance, Erkan Baş, the leader of the socialist TİP party, Bilge Yılmaz from the center-right İYİ Parti (Good Party), and former Prime Minister and the leader of Future Party (Gelecek Partisi) Ahmet Davutoğlu, all rejected the decision.[9] Legal experts on the other hand underlined that judges of the constitutional court can only be tried by the Supreme Criminal Court, which is the Constitutional Court itself, further complicating the situation.[10] Lastly, President Erdoğan and pro-government circles took the side of the Court of Cassation. By stating that both courts are the highest legal authorities, Erdoğan criticized the Constitutional Court for its “successive mistakes”.[11]

While the dispute between two high courts points out a serious judicial and political crisis in the country, the non-implementation of the highest court’s decision also proves that even basic notions of the rule of law are non-existent in Türkiye anymore. Article 85 of Türkiye’s current constitution (1982 constitution) clearly states that the Constitutional Court’s decisions cannot be overridden: “If the parliamentary immunity of a deputy has been lifted or if the loss of membership has been decided according to the first, third or fourth paragraphs of Article 84, the deputy in question or another deputy may, within seven days from the date of the decision of the Plenary, appeal to the Constitutional Court, for the decision to be annulled on the grounds that it is contrary to the Constitution, law or the Rules of Procedure. The Constitutional Court shall make the final decision on the appeal within fifteen days.”[12] Although the constitution is very clear on this issue, the insistence of the Court of Cassation and the President is illogical and sad concerning the principle of the rule of law in the country. It is a fact that legal decisions and interpretations could change over time, as in the case of the banning of the headscarf for university students as well as public officials. However, as the constitution states, the Constitutional Court’s decision on this issue cannot be refuted and overridden by the Court of Cassation as according to the hierarchy of norms, the Constitutional Court is the highest legal authority in Türkiye.

On this ground, let us hope that President Erdoğan and pro-government circles will not further erode the legal system and will accept the decision in accordance with the principle of the rule of law. In fact, this is the only way Türkiye can improve its democratic and economic situation since foreign investors and international companies would have doubts about a country in which even basic principles of the rule of law are not properly implemented. Moreover, Türkiye’s legal and democratic problems will make its bold foreign policy claims such as the revision of the UN Security Council, etc. weaker in the eyes of the international public. That is why, I strongly recommend a return to democracy and the rule of law as soon as possible.

Assoc. Prof. Ozan ÖRMECİ

[1] https://medyascope.tv/2023/11/09/turkish-judiciary-finds-itself-in-crisis-following-competing-rulings-on-can-atalay-case/; https://bianet.org/haber/turkey-faces-judicial-crisis-as-high-courts-clash-over-jailed-mp-287647; https://yetkinreport.com/en/2023/11/10/the-judicial-crisis-started-with-the-weakest-link-in-turkiye-the-cracks-enlarge/.

[2] https://www.bloomberg.com/news/articles/2023-11-09/turkey-constitutional-court-judges-face-trial-over-can-atalay-case; https://www.mlsaturkey.com/en/constitutional-crisis-can-atalay-controversy-in-the-judiciary.

[3] https://bianet.org/haber/turkey-faces-judicial-crisis-as-high-courts-clash-over-jailed-mp-287647.

[4] https://bianet.org/haber/turkey-faces-judicial-crisis-as-high-courts-clash-over-jailed-mp-287647.

[5] https://medyascope.tv/2023/11/09/turkish-judiciary-finds-itself-in-crisis-following-competing-rulings-on-can-atalay-case/.

[6] https://www.barobirlik.org.tr/Haberler/bu-karar-anayasal-duzene-karsi-acik-bir-baskaldiridir-84291.

[7] https://yetkinreport.com/en/2023/11/10/the-judicial-crisis-started-with-the-weakest-link-in-turkiye-the-cracks-enlarge/.

[8] https://www.bbc.com/turkce/articles/cx817zrvp1qo.

[9] https://medyascope.tv/2023/11/09/turkish-judiciary-finds-itself-in-crisis-following-competing-rulings-on-can-atalay-case/.

[10] https://www.reuters.com/world/middle-east/turkeys-top-appeals-court-files-complaint-against-constitutional-court-judges-2023-11-08/.

[11] https://tr.euronews.com/2023/11/10/yuksek-yargidaki-can-atalay-krizinde-erdogandan-yargitaya-destek-chp-ve-barolar-sokakta.