15 November 2023

Downhill All The Way

Turkey and a New Chapter in its Routinized Constitutional Crises

On November 8th, the 3rd Criminal Chamber of Turkey’s Court of Cassation, the nation’s apex court for civil and criminal matters, defied the Constitutional Court (the TCC) and explicitly accused it of engaging in “judicial activism.” The judicial feud between the two high courts stemmed from the individual application of Can Atalay, an opposition MP from the Workers Party of Turkey (TİP), challenging his ongoing imprisonment despite obtaining parliamentary immunity in the May 2023 elections. In line with its established jurisprudence, the TCC ruled in favor of Atalay, asserting that several of his constitutional rights had been violated and instructed the first instance criminal court for his immediate release. On remand, the 3rd Chamber of the Court of Cassation deemed the TCC ruling as ultra vires, urging the lower court not to comply and taking the unprecedented step of calling for a criminal investigation into those TCC justices who supported the ruling.

Yes, you heard it right: several high court judges, occupying top offices in criminal appeals, have accused the very justices, having the ultimate authority over the Constitution’s meaning, of violating it. Moreover, they based their accusations on the substance of a ruling that, under the Constitution, binds all state organs, including the accusers themselves. Understandably, the decision has shocked many. Meral Akşener, the leader of the Good Party, interpreted the move as an existential risk against the constitutional state, while Özgür Özel, the newly-elected leader of the main opposition party, labeled it a judicial “coup attempt,” urging the public “to resist in the streets and squares and not surrender to this lawlessness.” Turkey’s Union of Bar Associations similarly characterized the Chamber’s actions as “an attempt to change the constitutional order,” demanding disciplinary action against involved judges. On the social media platform X, #constitutional crisis became a trending topic.

What unites these reactions—political, scholarly, and public—is that they all perceive a constitutional crisis, a fundamental breakdown in the current moment. Indeed, the 3rd Chamber’s wholly ungrounded defiance is a failure of the constitutional order, illustrating how the Constitution no longer serves its core function of authoritatively channeling, restraining, and organizing state power. However, the Atalay controversy is neither unprecedented nor a true turning point in Turkey’s ailing democracy—it is just another symptom of a deepening dysfunction. In their blog post, Gülçin Balamir Coşkun and Ertuğ Tombuş similarly interpret the 3rd Chamber’s decision against its political background, rightly reading it as a political statement rather than a good-faith effort for offering a better judicial interpretation. Most importantly, they emphasize the predictability of the present chaos by outlining earlier moments of backlash against the TCC. What deserves attention, then, is not whether the constitutional crisis is imminent after this decision but rather how deep-seated and self-stabilizing its experience has become. In a way, constitutional crises have become so routinized that they no longer catch us off guard.

Background and Legal Analysis

Can Atalay, a lawyer known for his prominent work as a public rights defender, is in prison for allegedly “attempting to overthrow the government.” The prosecution’s case rests on his involvement in the Gezi Park demonstrations, nation-wide protests against the demolition of a green area in downtown Istanbul, which is still remembered, after more than a decade, as the most significant backlash against President Recep Tayyip Erdoğan’s regime. In 2022, Atalay was sentenced to 18 years in prison, while Osman Kavala, another key defender in the same trials, was sentenced to life imprisonment. In the May 2023 elections, Atalay was elected to Parliament as an Hatay MP and immediately submitted his request for release to the 3rd Chamber, invoking his newly acquired parliamentary immunity under Article 83(1) of the Constitution, which provides that “an MP who is alleged to have committed an offence before or after election shall not be detained, interrogated, arrested or tried unless the Parliament decides otherwise.”

The 3rd Chamber unanimously rejected the request, pointing to Art. 83(2), which renders parliamentary immunity inapplicable in two situations: when (1) the MP is caught red-handed committing a high crime; or (2) the attributed crimes are within the scope of Article 14, prohibiting the fundamental rights to be used in a manner that would “violate the indivisible integrity of the State with its territory and nation, and endanger the existence of the democratic and secular order of the Republic based on human rights.” The 3rd Chamber grounded its decision on the second leg of this exclusionary rule—the ambiguous, broadly worded, security-minded, and legally controversial addition to the Constitution by the military junta that oversaw the document’s drafting process.

However, when Atalay’s request was before the Chamber for the first time, the case law on how to interpret this exception was already well-settled (gradually articulated in two recent individual application cases; Leyla Güven [GK], B. No: 2018/26689, 7/4/2022; Ömer Faruk Gergerlioğlu [GK], B. No: 2019/10634, 1/7/2021). In both instances, the TCC had interpreted parliamentary immunity as integral to “the right to be elected” and adopted a liberal interpretation, deeming the Art. 14 exception wholly inapplicable absent further parliamentary action concretely specifying immunity-excluding crimes (Gergerlioğlu §88, 199-201). In doing that, the Court warned against extrapolating from this broadly-worded provision, a vague exception to parliamentary immunity, citing the risks of arbitrariness, unpredictability and uncertainty. The TCC, therefore, saw it as the legislature’s duty, and not the courts, to give concrete shape and content to the Art. 14 exception in line with the principle of legality.

Nonetheless, the 3rd Chamber denied Atalay’s release, rehashing the argument that the attributed acts were severe enough to remove parliamentary immunity. On appeal, the 4th Chamber upheld the decision, with one judge dissenting and citing the Gergerlioğlu precedent. Then, the TCC, sitting as Grand Chamber, reiterated its case law and found 9-5 that Atalay’s “right to vote and be elected” and “right to personal liberty and security” were violated. In sending the decision back to the criminal court of first instance, namely the Istanbul 13th Assize Court, the Court specifically listed the actions to be taken to remedy the violations endured by Atalay: “retry, stop the execution of the conviction, release from prison, and issue a stay of execution in the retrial.” This precise list was purposeful because in earlier, again high-profile cases, the lack of specificity in remedies had created some wiggle room for lower courts to delay the process and resist enforcement. (See here for an early diagnosis of lower courts’ legalistic strategies for foot-dragging; also, here is a comprehensive overview of the Berberoğlu case, the first case when a lower court opposed the TCC’s authority).

After the lower court was notified, procedural irregularities ensued. The judges in charge reportedly did not come to the courthouse for days. Upon their arrival, the case file was hastily “sent” to the 3rd Chamber with a 2-page, thinly-argued decision, arguably in violation of the rules of criminal procedure, under which a properly seized court cannot simply “send away a case” except in case of a lack of jurisdiction. Nevertheless, the 3rd Chamber accepted the reference, assumed jurisdiction and issued an opinion more akin to a war manifesto than a judgment. In it, the five-judge Chamber, after repeating its earlier reasoning, accuses the TCC majority of acting “with the comfort of not being reviewed,” “assuming the role of legislators and a super appeals court,” “rendering the Constitution inapplicable,” and, consequently, “losing legitimacy in the eyes of the People” (pp. 19-22). It finally calls for a criminal probe into the TCC justices for “exceeding their constitutional mandate.” Technically, this bold move is bound to fail because, to initiate an investigation on the justices, a criminal prosecutor needs authorization from the fifteen-member assembly of the TCC, which requires the attendance and support of the very individuals whose investigation is sought.1)

Beyond Legal Analysis: Contextualizing the Controversy

Enough with the legal analysis, as if textually solid arguments or settled precedent mattered to the 3rd Chamber’s crusade. The Atalay controversy is evidently part of a broader political struggle over the future of the TCC—the only state institution with some level of independence from Erdoğan’s direct control owing to the members appointed prior to his presidency. Subsequent events affirm this point. Two days after the judgement, Erdoğan gave support to the Chamber, expressing that the TCC “has made many mistakes in a row at this point, which seriously saddens us.” Following that, the Court of Cassation (on behalf of all Chambers) issued a statement in a rare move, accusing the TCC of dragging the legal system into chaos. For some time, Devlet Bahçeli, the leader of the Nationalist Movement Party (MHP) and Erdoğan’s de facto coalition partner, has been voicing discontent about the TCC, accusing the justices of the top court of “backing terrorism” and calling for a “fundamental restructuring of the Constitutional Court” while arguing that “it is not the court of the Turkish nation.”

In this respect, challenging the TCC’s authority is neither a recent trend nor is it limited to political elites. In several high-profile cases, lower courts—increasingly staffed by handpicked candidates with regime-friendly credentials—have been undermining and even explicitly resisting the enforcement of the TCC rulings. Openly questioning the TCC’s legitimacy and calling for disobedience to its rulings began as early as 2016, notably with the individual application of Can Dündar, the former editor of Cumhuriyet, who was in prison at the time with charges of espionage and disclosing state secrets. Following the TCC’s finding of a violation of Dündar’s freedom of expression along with other rights, Erdoğan had remarkably said, “I do not respect, obey, or accept the decision of the TCC. The Court of First Instance could have resisted this decision”. These instructions appear to have been well-received, with Atalay’s case emerging as another chapter in a resilient trend.

Crisis or Decadence?

Undoubtedly, what sets Atalay’s controversy apart is the Chamber’s audacity in calling for a criminal investigation. However, the incident’s uniqueness should not be overstated. What is more alarming, perhaps also more urgent, is to see the continuities in these disparate events, which together have brought us to the present moment and led to the Constitution’s gradual drift into irrelevance. That’s why I do not see in the 3rd Chamber’s rebellion the beginning of a constitutional crisis. To have a constitutional crisis, one first needs a baseline of normality defined by a constitution and embraced by a large enough majority. For reasons I sketched above, I believe Turkey has been lacking this baseline for some time now. Consider what Mehmet Uçum, a senior adviser to Erdoğan, wrote following the Chamber’s decision:

“It is not the duty of the Constitutional Court to argue that Article 14 of the Constitution is ambiguous. (…) The decision of the Court of Appeals [referring to the Chamber’s decision] is also a litmus test, it will be clear who is in favor of the National Judiciary and who is not. Turkey will defend its National Judiciary to the end against the western and neo-liberal understanding of the judiciary, no one should doubt this.”

Underlying Uçum’s views is a particular way of imagining the political world that posits a stark division between corrupt elites, on the one hand, and a purified national unity, on the other. It describes an ontologically separate and normatively superior “National Judiciary,” pitted against those corrupted with “neoliberal understandings.” In this perverse logic, the Constitution ceases to function as the authoritative benchmark for evaluating public actions. It is through this logic that the 3rd Chamber’s constitution-defiant crusade finds its justification. Accordingly, what ultimately matters for a judge is not to come up with a good-faith interpretation of the Constitution; but rather choosing a side in an irreducibly politicized debate.

In this task, posturing as a member of the “National Judiciary” comes with material benefits. Back in 2020, when the first instance court had disregarded the TCC ruling in the Berberoğlu case, Cem Tecimer rightly wrote: “The criminal court and its three members, by disregarding a ruling of the highest court of the country, have, in my opinion, committed a serious judicial offense, which warrants prompt and commensurate disciplinary action, and possibly even a criminal investigation.” Disciplinary action aside, the head of the defiant panel, Akın Gürlek, has been rewarded with a promotion in a matter of months. In this respect, there is a perverse incentive structure operating in the background, complementing the ideological battle on the surface. Given the earlier examples, it is reasonable to expect similar career possibilities opening up for the 3rd Chamber judges as well.

What appears as a “constitutional crisis” to most of us, then, is business as usual for the judicial operators of authoritarianism. “What fascinates and terrifies us about the Roman Empire is not that it finally went smash,” wrote W. H. Auden commenting on the long-running crisis of the Romans, but rather that “it managed to last for four centuries without creativity, warmth, or hope.”2) In a similar fashion, Turkey’s constitutional crisis has become terrifyingly self-stabilizing, without hitting a bottom or leading to a widespread and reinvigorating sense of “this is too much.” In short, what requires explanation is this resilience, the features that keep the system going despite the widely acknowledged venality defining the judicial system and everyday political practices.


1 Art. 16 (1), Law No.6216 on the Establishment and the Procedures of the Constitutional Court.
2 Ross Douthat, a NY Times Columnist, inspired by Auden’s diagnosis, suggests that the United States, and the West generally, has similarly entered what he calls a “decadent” phase in its multigenerational story—a phase of cultural exhaustion and discontent, that is far too sustainable. In this last part, I am inspired by his diagnosis of a internally stabilizing crisis.