ISTANBUL (Reuters) – President Tayyip Erdogan's government is seeking ways to curb the influence of Turkey's Constitutional Court, prompted by its rulings to free a jailed opposition parliamentarian, according to a senior official and two legislators in the governing alliance.
Turkey's highest court ruled in October that Can Atalay's ongoing imprisonment violated his right to hold office after he was elected to parliament from his jail cell in May's general election.
Atalay was sentenced in 2022 to 18-years in prison for trying to overthrow Erdogan's government by organising national protests in 2013. The 46-year-old lawyer denies the charges.
He appealed to the Constitutional Court using an "individual application" - a mechanism created by a 2010 constitutional amendment that allows citizens to petition the top court directly over rights issues.
The Constitutional Court's ruling to free him triggered a judicial crisis on Nov. 8 when Turkey's top appeals tribunal - the Court of Cassation - said it would not recognise the decision and filed a criminal complaint against the judges who made it.
The appeals tribunal accused the Constitutional Court of overstepping its jurisdiction by acting as a 'super-appeal body'.
Mehmet Ucum, Erdogan's chief adviser and deputy chair of the Presidential Legal Policies Council, in November defended the Court of Cassation's move on social media platform X and slammed the Constitutional Court for making "unconstitutional decisions".
According to the senior government official and two legislators from the ruling party, Erdogan and his allies are uneasy about the influence wielded by the court, particularly through its widespread use of "individual applications".
Erdogan's office and justice ministry did not respond to requests for comment.
The senior Turkish official, who like the other two sources requested anonymity to speak freely, said that the court has established "a unique sphere of power" through these rulings.
The court has processed more than 500,000 individual applications alleging violation of fundamental rights by authorities since September 2012 and delivered a ruling in more than 484,000 of the cases, official data shows.
In November, Erdogan said that he would play the "referee" in the judicial crisis and that legislation could be used to solve the standoff between the Constitutional Court and the appeals Court of Cassation.
"It's not difficult to make legal arrangements regarding individual applications," he said, without giving further details.
The government is considering options, the senior official said: these include establishing a "Turkish Human Rights Court" that would deal with individual applications separately.
The Constitutional Court and the system for individual applications will remain in some form, said the official. "But regulations are necessary," the person added.
The Constitutional Court and the Court of Cassation declined to comment for this story.
One of the two AK Party MPs, who requested anonymity, said that the Constitutional Court should have a clearly defined jurisdiction in order not to overlap with the Court of Cassation and exceed its jurisdiction.
INTER-COURT STANDOFF
Atalay's lawyers expected him to be released after the Constitutional Court ruled for a second time in December that he should be freed, they told Reuters. But on Dec. 27 an Istanbul penal court refused for a second time to free him and again transferred the case to the Court of Cassation, claiming that a reassessment by the appeals court was mandatory.
In January, Turkey's parliament - dominated by Erdogan's supporters - stripped Atalay of his parliamentary status. Atalay, who remains in jail, declined to comment.
The European Commission, in its annual report on Turkey's stalled EU membership bid, in November criticized "serious backsliding" on democratic standards, human rights and judicial independence. It criticised a lack of transparency and meritocracy in the appointment of judges and prosecutors.
Erdogan's government, which has restacked the judiciary following a failed 2016 coup, says the system complies with international standards.
Bertil Oder, a professor of constitutional law at Koc University in Istanbul, said the Constitutional Court's popularity with the public has increased since it started ruling on individual applications.
"The more it interprets rights, the stronger its bond with citizens becomes," he said.
While Germany's Federal Constitutional Court received nearly 5,000 applications in 2022, Turkey's Constitutional Court had nearly 110,000 that year, official data on their websites show.
Several of its rulings have drawn Ankara's ire.
In January of 2018, the Constitutional Court ordered the release of jailed journalist Sahin Alpay, accused of attempting to overthrow the government in the 2016 failed coup. He denied the accusations.
Bekir Bozdag, then deputy prime minister, said at the time the ruling overstepped the limits set out in the constitution for reviewing individual applications.
A Turkish criminal court refused to release Alpay until March 2018 - after the Constitutional Court ruled for a second time that his rights had been violated.
PRO-GOVERNMENT RULINGS
However, the court has ruled in favor of the government on several major issues. In 2016, it rejected an appeal by the main opposition Republican People's Party (CHP) for annulment of emergency laws enacted after the attempted coup.
The move entrenched Erdogan's sweeping powers, says Kerem Altiparmak, a prominent Turkish human rights lawyer at the Ankara Bar Association.
"The court's importance lies in projecting the image to the international community that there is a functioning judiciary in Turkey," he said. "It does not solve any of the critical cases; rather, it is at the centre of the problem."
The court unanimously dismissed in 2017 a request to cancel Article 299 of the Turkish Penal Code, which regulates the offence of "insulting the President".
And last year, it rejected a case to annul the government's 2022 media law that allowed for jailing journalists and social media users for up to three years for spreading "disinformation". The detailed ruling is not yet shared on the court's website.
BID TO CLOSE PARTY
In 2021, Bekir Sahin, a prosecutor at the Court of Cassation, filed a lawsuit with the Constitutional Court for the closure of the pro-Kurdish Peoples' Democratic Party (HDP). He accused it of links to the Kurdistan Workers' Party (PKK), which is classified as a terrorist group by Turkey, the U.S. and E.U. The HDP denies any ties.
Turkey has banned several political parties, including pro-Kurdish ones.
Devlet Bahceli, leader of the Erdogan-allied Nationalist Movement Party (MHP), the fourth-biggest party in parliament, accused the court of bias after it rejected in March 2023 the Court of Cassation's request to block Treasury support paid to the HDP. The Constitutional Court ruled that the necessary conditions to impose a block on financing had not been met.
Ayca Akpek Senay, a lawyer and deputy chair of the CHP's disciplinary board, which has the power to ban members from the party, says the MHP is using the case to justify Bahceli's calls for shutting down the court.
"Despite its shortcomings, the court provides a different perspective," said Senay. "Erdogan's government is unable to manipulate it to their advantage and this is unsettling for them."
Bahceli and the MHP did not respond to requests for comment.