On January 24, 2025, the HRUG Regular Seminar explored the commonalities and conflicts between judicial independence and liberal democracy, taking the Can Atalay Case in Türkiye as an example. The seminar was presented by lawyer Veli Can Çinar and chaired by Joe Finnerty (a social policy analyst, School of Applied Social Studies, University College Cork, Republic of Ireland). Participants included Associate Professor Li Juan (a researcher of CSU Human Rights Center), Professor Mehmet Okyayuz from the Department of Political Science at Middle East Technical University in Türkiye, Krish Chetty (a research assistant at the Human Sciences Research Council, South Africa) and other scholars.
Lawyer Veli Can Çinar began by briefly introducing the background of the Can Atalay case. Can Atalay, a member of the opposition party in Turkish parliament, was sentenced to 18 years in prison in 2022 for allegedly attempting to overthrow the government and organizing protests. In May 2023, Can Atalay was elected as a member of parliament representing the Workers’ Party of Türkiye.
The core dispute in the case revolves around whether Can Atalay is entitled to the immunity granted by the Turkish Constitution due to his status as a member of parliament. According to Article 83, Paragraph 2 of the Turkish Constitution, members of parliament accused of crimes before or after their election cannot be detained, interrogated, arrested, or tried without the permission of the parliament, except in cases of flagrant offenses or if the investigation begins before the election and involves violations of Article 14. In such exceptional cases, the relevant authorities must immediately notify Grand National Assembly of Türkiye. Can Atalay’s defense lawyer argued that, based on the Turkish Constitution, Can Atalay should enjoy immunity due to his parliamentary status. However, the Third Criminal Chamber of the Turkish Court of Cassation rejected this claim, stating that the serious crimes punishable under Article 14 of the Constitution constitute a limitation on parliamentary immunity. Can Atalay then appealed to the Constitutional Court, which ruled that his “right to be elected and participate in political activities” and “right to personal liberty and security” had been violated. The Constitutional Court ordered the Third Criminal Chamber of the Court of Cassation to retry the case, suspend the execution of the sentence and release him. However, the Third Criminal Chamber not only refused to implement the Constitutional Court’s ruling but also declared that the ruling should not be enforced and initiated criminal charges against members of the Constitutional Court. This case has sparked widespread controversy over judicial independence and the enforceability of Constitutional Court rulings in Türkiye.
The judicial conflict between the Constitutional Court and the Court of Cassation has further complicated the case. Veli Can Çinar believed that this conflict reflects the politicization of law within the Turkish judicial system. He further noted that the Gezi Park protests served as an important backdrop to this case, as they were one of the largest uprisings against the ruling party. Can Atalay gained prominence for his defense work during those protests. Veli Can Çinar emphasized that if members of a political party are allowed to participate in elections and are elected as parliamentarians, they should enjoy the corresponding rights, which is a crucial aspect of democracy. However, with the politicization of law continues in Europe, some countries act in ways that contradict their proclaimed values of liberal democracy.
Finally, the participants discussed the potential outcomes and implications of the case under these circumstances, linking it to broader international developments. Whether the Third Criminal Chamber of the Turkish Court of Cassation will enforce the Constitutional Court’s ruling remains unclear. The attendees agreed that the enforcement of the court’s decision would directly impact the credibility of the judiciary. In this case, due to judicial conflicts and politicization, enforcement has become highly challenging. If the ruling is not properly enforced, the legitimate rights of the parties involved will not be protected, leading to public dissatisfaction and skepticism toward the judiciary and undermining its credibility. Therefore, the outcome of this case is of utmost importance.
2025年1月24日，HRUG召开定期研讨会探讨司法独立与自由民主的共性与冲突：以土耳其Can Atalay案为例。本次会议由Veli Can Çinar律师主讲，爱尔兰国立科克大学应用社会研究学院政策分析家Joe Finnerty主持。中南大学人权研究中心研究员黎娟副教授、土耳其中东科技大学政治学Mehmet Okyayuz教授、南非人类科学研究委员会研究助理Krish Chetty等学者参与了此次讨论。
Veli Can Çinar律师首先简要介绍了Can Atalay案件背景。土耳其在野党国会议员Can Atalay因被指控试图推翻政府，还与多人一同组织抗议活动，于2022年被判处18年监禁并入狱。2023年5月，Can Atalay代表土耳其工人党被选为国会议员。
案件的核心争议在于Can Atalay是否因当选国会议员而享有土耳其《宪法》规定的豁免权。依据土耳其《宪法》第83条第2款，在选举前或选举后被指控犯罪的议员，未经议会许可，不得被拘留、讯问、逮捕或审判，但犯有严重罪行的现行犯，或在选举前已开始调查且涉及违反第14条的情况除外。当发生例外情况下，有关当局必须立即直接通知土耳其大国民议会。Can Atalay的代理律师认为，依据土耳其《宪法》的规定，Can Atalay因其议员的身份应该享有《宪法》规定的豁免权这一主张，但土耳其最高上诉法院第三刑事庭驳回了Can Atalay的诉讼请求。法院认为，《宪法》第14条规定的需要严惩的重罪构成了对议员豁免权的限制。随后Can Atalay向宪法法院提起上诉，宪法法院裁定，Can Atalay的“被选举权和参与政治活动的权利”以及“人身自由和安全权”受到侵犯，最高上诉法院第三刑事庭应对其重新审判、暂缓执行死刑并予以释放。然而，最高上诉法院第三刑事庭并未执行宪法法院的裁决，反而裁定宪法法院的裁决不应得到执行，并对宪法法院的成员提出刑事指控。这一案件引发了有关土耳其司法独立性与宪法法院裁决执行力的广泛争议。
宪法法院和最高上诉法院之间的司法冲突使得案件变得更加复杂，Veli Can Çinar认为这种冲突在土耳其司法体系中是法律政治化的表现。他进一步提到，塔克西姆盖齐公园起义是此案的重要背景，该起义是反对亲民党的最大起义之一，而Can Atalay正是因其在该起义中的辩护工作而备受关注。Veli Can Çinar律师指出，如果一个政党的成员被允许参加选举且当选议员，那么其应该享有权利，这是一国民主的重要体现。然而，法律政治化在欧洲持续进行，一些国家的行为与其所宣称的自由民主等价值观相悖。
最后，与会嘉宾讨论了在此种情况下案件的裁决与最终走向，并将该案件与国际局势相关联进行了一系列讨论。土耳其最高上诉法院第三刑事庭是否执行宪法法院的裁决，截至目前仍旧没有明确的答案。大家一致认为，执行法院裁决的结果将直接关系到司法公信力的高低。在这个案件中，由于司法冲突和政治化，执行变得非常困难。如果执行不力，当事人的合法权益得不到保障，就会导致公众对司法的不满和质疑，降低司法公信力。因此案件的裁决结果至关重要。
(Transcription: Yuou Dai, Yuxin Wang; Translation: Yaxing Bai）