While Turkish legal experts characterised the Court of Cassation’s refusal to recognise the Constitutional Court’s (AYM) decisions as a judicial coup d’état, Kurdish lawyers such as Şükran Öztürk from the Association of Lawyers for Freedom (ÖHD) argued that the origin of the crisis dates back further. The current state of ‘lawlessness’ in Turkey developed after the AYM failed to implement European Court of Human Rights (ECHR) rulings on the cases of Selahattin Demirtaş and Osman Kavala, the lawyers said.
The refusal of the Court of Cassation’s 3rd Criminal Chamber to adhere to the AYM’s decisions continues to spark significant legal controversy in Turkey. Izmir Bar Association President Sefa Yılmaz stated, “If these decisions are not implemented and are subject to evaluation and interpretation, then we are speaking of a constitutional and legal coup.” In contrast, ÖHD’s Izmir Co-chair Şükran Öztürk criticised the Court of Cassation’s “disregard for law”, attributing it to a failure by the AYM to implement ECHR rulings on rights violations, such as for Kurdish politician Demirtaş and human rights defender Kavala.
On 21 December 2023, the AYM’s General Assembly issued a second ruling that the imprisonment of Can Atalay, a member of the Labour Party of Turkey (TİP) from Hatay, constituted a ‘violation of rights’. However, the Court of Cassation deemed this ruling legally void, refusing compliance and accusing the AYM of ‘juristocracy’ – governance by judges. Justice Minister Yılmaz Tunç acknowledged the disagreement between the two high courts, pointing to the Court of Cassation’s final verdict as the binding decision.
Several AYM rulings have been previously disregarded, including those for Demirtaş, former co-chair of the pro-Kurdish Peoples’ Democratic Party (HDP), despite the ECHR returning a verdict that the defendant’s rights had been violated. President Recep Tayyip Erdoğan of the ruling Justice and Development Party (AKP) party also notably refused to recognise the decisions.
“The supremacy of law is essential in rule-of-law states, and it is ensured by the independence of the judiciary. The decisions of the 3rd Criminal Chamber of the Court of Cassation demonstrate the loss of judicial independence and bias,” Yılmaz stated. He also declared that such a situation was unprecedented globally and argued that Turkey could no longer be considered a rule-of-law state.
Meanwhile, Kurdish lawyer Öztürk criticised the AYM for paving the way for its own rulings to be disregarded by initially failing to push for implementation of the ECHR’s decisions. “This is the final point of decay in the judiciary,” she remarked, reflecting on the broader implications of legal conflicts on Turkey’s rule of law.
This perspective aligns with the Council of Europe’s repeated warnings to Turkey over its failure to implement ECHR judgements. The Committee of Ministers stressed that Kavala and Demirtaş must be urgently released and emphasised that the judiciary must be protected from excessive executive influence.
The AYM asserted that no authority, including the Court of Cassation, has the right to question the binding nature of its decisions, a role essential to the protection of rights and freedoms in the country, as illustrated in the case of MP Atalay.
These events reflect a deepening rift in Turkey’s legal system, with the Court of Cassation openly contesting the authority of the AYM, and the executive branch, including President Erdoğan, supporting the Court of Cassation’s defiance. The conflict has raised significant concern over judicial independence and the balance of power in Turkey’s democratic framework, marking a critical moment in the country’s legal and political history.
