Prof. Dr. Sami Selçuk, the former Chief Justice of the Court of Cassation published an article about the decision of the Third Criminal Chamber of the Court of Cassation on not complying with the decision of  the Constitutional Court decision in the case of Can Atalay. We translated it into English.

Background: In the case of an imprisoned opposition politician, Turkish constitutionalism has plunged into obscurity as the Court of Cassation revolts against the Constitutional Court.

In late October 2023, the Constitutional Court delivered its decision on the individual application of Jan Atalay, an imprisoned opposition politician and lawyer who has been behind bars since April 2022. He was convicted of attempting to overthrow the government in the infamous Gezi Park trial.

The Constitutional Court held that his rights to be elected and to personal liberty were violated, ordering his release. However, the Istanbul Heavy Penal Court did not comply with this decision. Instead, it referred the matter to the Court of Cassation.

In an unprecedented move, the Court of Cassation ruled not to implement the Constitutional Court's decision, arguing that it had exceeded its jurisdiction. The Court of Cassation also lodged criminal complaints against constitutional justices who voted in Atalay’s favor.

The Chamber, with an approach seemingly more about safeguarding its own privileges and powers than upholding the law, has above all, violated a constitutional norm written in plain language understandable to all, to a degree that not only defies legal comprehension but also common sense.

Decisions of the Constitutional Court

Article 153/6 – Decisions of the Constitutional Court shall be published immediately in the Official Gazette, and shall be binding on the legislative, executive, and judicial organs, on the administrative authorities, and on persons and corporate bodies.

Indeed, upon reading the article of the constitution, it is evident that the Constitution first mentions all of state organs by their names and then concludes by using the words ‘does bind the judicial bodies’ rather than ‘may bind,’ in an absolutely imperative tone (Constitution, Art. 153/last). In essence, within global legal language, this rule is a ‘peremptory rule’ (jus cogens). Let us digress here and look at what the law says.

As widely accepted, within the domains of religion, morality, tradition, and law each norm solely concerns human behavior and anticipates one of three following (Sollen): allowing or authorizing behavior; prohibiting behavior; or demanding its execution. Hence, legal norms are generally ‘normative’; they exist within established concepts and terminologies (Kelsen, Hans [Olivier Beaud / Fabrice Malrani], General Theory of Norms, Paris 1996, p. 37 et seq.; Gözler, Kemal, Introduction to Law, Bursa, 2018, pp. 25, 26). Other regulations, particularly within legal frameworks, such as the provisions in the Constitution addressing concepts like “national solidarity,” and similar clauses, or the rule outlined in the Criminal Procedure Code mandating the filing of appeals within specified timeframes (Art. 276/1), with subsequent examination of time limits within the Court of Appeal (Art. 279/2), represent regulatory measures instrumental in elucidating thoughts during interpretation and scrutiny.

In this instance, the Constitutional Court’s decision distinctly commands compliance. The legal norm that defines the prerequisites of a secular state is evidently a creation not of divine origin but a construct of human intent; in its absence, neither a directive nor an intentional action possessing significance exists. Hence, every legal directive, when required, upholds societal order and justice through enforcement. For instance, within traffic regulations, each rule specifies permission to proceed on a green light, mandates stopping at a red light, or signifies preparedness to act upon authorization at a yellow light. Regrettably, in the present context, the mandate to halt at the constitutional ‘red light’ has been disregarded. Confronted with an unmistakable and unequivocal provision articulated in the imperative mood, even the principle of interpretation asserting ‘unambiguous directives are not subject to interpretation’ has been breached by the Special Chamber, resulting in a decision surpassing the realms of legal and linguistic sciences. How could this skewed approach and interpretation be scientifically rationalized?! Wouldn’t even elementary school students, learning about the imperative mood, be astonished by such reasoning and judgment? Such reasoning and judgment undeniably serve as a glaring and incorrect illustration of misinterpreting the imperative mood! Certainly, it would, eliciting surprise and amusement even from those children. Roaring with laughter.

As for the judges who signed this judgement and who are authorised to have the last word in law, why should they, in making such a decision, which is so far outside grammar and legal sciences, act objectively, that is to say, in accordance with their own beliefs and opinions? In the words of the Mecelle (the civil code of the Ottoman Empire), they signed a judgement loaded with crude mistakes as if to create the impression that they would contradict the principle of being free from emotions and anger. And, instead of creating the impression of judges who are required to be “hakîm (wise), fehîm (insightful), müstakîm (firm) and emîn (accurate and reliable, respected), metîn (resilient), mekîn (measured and cautious)” (art. 1792), they created the appearance of excluding such ethical principles in their judgements.

Moreover, such a decision may be rendered by exercising an “appraisal power” (pouvoir d’appréciation libre, potere di libero apprezzamento) that is not permitted by law, and therefore null and void (absolute nullity) with “absolute void”, which is the sanction of “excess of authority” (excès de povoir, eccesso di potere), nullité absolue, nullità absolutà), a decision of those who both break the law and have the last word in many branches of law, why was it not considered by the distinguished jurists of our Court of Cassation, whose very existence is to check for and identify legal flaws! ?

It should not be forgotten that the duty of judges is only to apply the provisions of the laws, which the legislators have drafted within the Constitution and the laws, without any assessment of these laws and their provisions, only to apply them correctly and in accordance with the law. Criticising them is never their duty. If they want to criticise them, they can of course do so in an article. But they can never make a judgement that is crippled by “excess of authority” (accès de pouvoir, accesso di potere, acceso de poder) by expressing it in a court decision. In a state based on law and the rule of law, no legal system can ever allow this. As a matter of fact, this has never been permitted in any period until today. As a matter of fact, on 17.5.1907 and 30.4.1908, the French Court of Cassation not only overturned but also severely criticised such decisions (Mimin, Pierre, Le style des jugements, Paris, 1978, n. 106).

Contrarily, in my country, not only the judges of the first instance, who are obliged to comply with the decisions of the Constitutional Court, but also the president and members of a chamber of the Court of Cassation, by consciously violating this rule, have infringed upon the rules themselves.

The judges and members of the court of first instance, i.e. the assize court, upon receiving the decision of the Constitutional Court, acted outside the law and transferred their duties to the Special Chamber of the Court of Cassation, invoking an unjustified and baseless pretext of ‘the file was then at the Court of Cassation’ while there was no need for considering the file. Meanwhile, the judges and members of the Third Criminal Chamber of the Court of Cassation, not only with an unlawful rationale but also with an excuse laughable even to a lay person upheld this flawed decision at the expense of continuing ‘unlawfully depriving a person of freedom’ (Turkish Penal Code, Art. 109/1).

Another regrettable and surprising aspect of such an unlawful decision, even though its unlawfulness is strikingly evident whichever way you look at it, is that this decision, which is an offence, was taken unanimously by the president and members of the Third Criminal Chamber of the Court of Cassation, and  that certain people from the legal community applauded it without making a legal assessment of it, moreover, without any shame, and thus deliberately and blatantly violated the principles of certainty and foreseeability.

All these violations of the law are known even to the ordinary people on the street, let alone the authorities. Despite all the warnings made in accordance with the law, the authorities turn a blind eye to such violations, even though the act in all its entirety complies with the “legal definition” (typicality) of the offence defined in the above-mentioned article of the Turkish Penal Code. These unlawful actions have, of course, revealed, and continue to reveal, the sad portrait of our country in the field of law. Under these circumstances, the only remedy at hand is undoubtedly to speak out or to cling to the pen. In fact, this is what I am currently doing in the name of the law with a heavy heart.

Mr Sami Selçuk is a Turkish jurist, professor of law at the Bilkent University in Ankara. He is also former First President of Court of Cassation of Turkey. He was graduated from Ankara University, Law School in 1959 then he began to work as public prosecutor. On July 7, 1999, he elected the First President of Court of Cassation of Turkey. He retired this job on June 15, 2002. He knows French and Italian languages.

Categories: Turkey Human Rights Blog