Defiance of the Turkish Constitutional Court by the Court of Cassation: Yet Another Phase in Turkey's De-Constitutionalization

Ilker Gökhan Sen

University of Oslo

The recent judicial crisis between two high courts in Turkey marks another stage of Turkish de-constitutionalization. In a blatantly unconstitutional move, the Court of Cassation openly refused to abide by a decision of the Turkish Constitutional Court (TCC).  Anticipated and backed by Erdoğan's government, this defiance is unprecedented in Turkish constitutional history.

What is De-Constitutionalization?

In recent years, Turkey has emerged as a key example of the challenges facing constitutional democracy. An overabundance of terms has emerged in global debate to describe democratic regression and constitutional challenges, shaped by the experience of different jurisdictions. In Turkey, this phenomenon is specifically termed “de-constitutionalization” (anayasasızlaştırma). De-constitutionalization is the process by which a constitution is de facto rendered ineffective in its formal and material aspects, despite it not being explicitly repealed. This involves a failure to observe the principles of limited government, judicial independence and the protection of human rights (the material aspects), and a violation of the constitution’s procedural rules by state actions and decisions (the formal aspects).

What Happened?

In April 2022, Can Atalay received an 18-year prison sentence for his involvement in the Gezi Case. Despite being elected as an MP in May 2023, his appeal for release was rejected by the Court of Cassation. Later, in October 2023, the Constitutional Court found his post-election detention to be unconstitutional, violating his rights to election and personal liberty. In an unprecedented decision, on November 8, the Court of Cassation declined to comply with the Constitutional Court's decision to release Mr. Atalay.

The Decision of the Turkish Constitutional Court

The Atalay case centers on the issue of whether Mr. Atalay can invoke parliamentary immunities against his criminal conviction. A combined reading of Articles 83 and 14 of the Turkish Constitution vaguely suggests that deputies may lose their parliamentary immunities in the “situations” (the official translation says “cases” for the term durumlar-Art.83) involving “activities aimed at violating the indivisible integrity of the state, its territory, and nation” (Art.14).

The Constitutional Court had previously ruled against the use of an analogy from anti-terror laws to remove parliamentary immunity, determining that the term “situations,” as provided in Article 83 referring to Article 14, was too ambiguous to justify this action. In line with this precedent, the Court concluded that invoking the vague language of these two constitutional provisions to strip Mr. Atalay of his immunity and detain him was a violation of his constitutional rights.

The Court of Cassation's Counter-Decision Brazenly Violates the Constitution

The Court of Cassation considered the TCC's refusal to use Article 14 to remove parliamentary immunity as a de facto annulment of this provision which caused the TCC to overstep its constitutional authority. Treating this decision as constitutionally invalid, the Court of Cassation called for a criminal investigation against the TCC judges who ruled in favor of the said decision. Nevertheless, Turkey has a centralized system of constitutional review where only the Constitutional Court can perform constitutional review (Art.148). Also, the relevant legal framework concerning criminal liability and prosecution of TCC judges does not include the Court of Cassation.

Given its lack of legal mandate, the Court of Cassation's arguments seem to be influenced more by political motives rather than by legal reasoning. (see here, here and here).

The TCC's prohibition against the arbitrary use of Article 14 is grounded in solid legal reasoning: it specifically reflects the principle of ‘no crime without law,’ which inherently rejects the use of analogy in criminal law and is a basic principle of justice. However, the Court of Cassation’s counter-justification for its broad interpretation of Article 14 relied on cherry-picking from European Court of Human Rights (ECtHR) case law about “judicial interpretation” (for instance, Kafkaris v. Cyprus). Yet, the Court of Cassation ignored key ECtHR jurisprudence that prohibits the use of analogy in criminal law.

The Court of Cassation complained that the prohibition of analogy makes it so hard to investigate crimes that it becomes nearly impossible to prosecute anyone. This was accompanied by crude anti-terror rhetoric condemning “a lot of bloody” terrorists plotting to overthrow the government.(p.18) It also accused the TCC of abusing its constitutional powers, suggesting the TCC relied upon “the comfort of not being supervised by any other authority.” (p.21) Such abuse of power, for the Court of Cassation, rendered the decisions of the TCC “unacceptable” leading to “the existence of the Constitutional Court being questioned, and its legitimacy being debated.” (p.22) The Court of Cassation went further, characterizing the TCC judges as terrorists and claiming that the TCC’s decision threatened members of the Court of Cassation just as the terrorists had done. 

At any rate, Article 153 of the Turkish Constitution, is clear: “Decisions of the Constitutional Court are…binding on…the judiciary.” In a clear contravention of this provision, the Court of Cassation's disregard of the TCC's ruling represents a brazen violation of the Constitution. The reactions from various circles, including legal and political, are unequivocal. For many, this is a coup d’etat against the constitution disguised as a judicial decision.

De-constitutionalization and the Decline of the Turkish Constitutional Court

The Turkish Constitutional Court has experienced a noticeable decline over several years, which has become a focal point in the broader scene of de-constitutionalization in the country. Since the 2010 constitutional revisions, the Erdoğan-led AKP has steadily packed the Constitutional Court by appointing allies, leading to a pattern of rulings favoring the government's interests, especially after the failed 2016 coup.

Following the failed coup, the TCC abandoned its prior case law of reviewing emergency presidential decrees (KHKs), despite these decrees clearly contravening several constitutional provisions. By taking a hands-off approach, the TCC permitted the government to rule by decree without any constitutional limits. The unconstitutional nature of these KHKs was clear, with constitutional doctrine describing them as having “turned the hierarchy of norms upside down”.

This subservience has led some observers to question the extent to which the TCC has been tamed by the government. Its case law, however, displays a more nuanced picture. Although there is a clear increase in governmental control, the TCC has occasionally given decisions safeguarding the constitution and fundamental rights, which contradict government interests, including notably, the Atalay case in question. However, in the current climate of de-constitutionalization, the authority of the TCC has been weakened, diminishing the impact of such decisions.

An early yet paradigmatic example of the TCC’s eroding authority occurred in 2016, when the Court ruled in favor of journalists Can Dündar and Erdem Gül, who faced charges of espionage due to their journalistic activities. This ruling came after a series of events where President Erdoğan had taken the issue personally, famously stating they “won't get away with it” in response to a news report that went against his interests. Following the Court's decision, these journalists were released, which Erdoğan publicly criticized. He stated, “I do not respect, obey or accept the decision of the TCC. The Court of First Instance could have resisted this decision.”

It is important to note in the current case, that the Court of Cassation critically cited the Dündar and Gül decision when it argued that the TCC had overstepped its constitutional authority. This is a clear manifestation of the Court of Cassation’s deference to Erdoğan, taking his implicit directives to the judiciary at face value, which is quite telling about the severity of threats to judicial independence.

This current crisis is the culmination of events since Erdoğan's grip on the Turkish constitutional order began to tighten in 2016. Erdoğan's apparent satisfaction with the Court of Cassation defying the TCC implies a sense of anticipation—as though he believed the Constitutional Court might have, or even should have, seen this coming.

An Unhappy Conclusion

The defiance of the Turkish Constitutional Court by the Court of Cassation marks a new milestone in the de-constitutionalization of the country. The Court of Cassation's refusal to follow the Turkish Constitutional Court's decision is the first event of its kind since the establishment of the Court in 1961. It shakes the very core of the constitutional order in Turkey, setting quite a disturbing precedent. Plainly put, this is not good.

Ilker Gökhan Sen is a Post-Doctoral Fellow at the University of Oslo

Suggested Citation: İlker Gökhan Şen, ‘Defiance of the Turkish Constitutional Court by the Court of Cassation: Yet Another Phase in Turkey's De-Constitutionalization’ IACL-AIDC Blog (14 December 2023) https://blog-iacl-aidc.org/2023-posts/2023/12/14/defiance-of-the-turkish-constitutional-court-by-the-court-of-cassation-yet-another-phase-in-turkeys-de-constitutionalization