Local court defies Constitutional Court ruling of right violation for Enis Berberoğlu

* Photo: Anadolu Agency (AA)

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Shortly after the Constitutional Court gave a ruling of right violation for Enis Berberoğlu, who was sentenced to 5 years, 10 months in prison for "disclosing confidential information", the İstanbul 14th Heavy Penal Court has concluded that there is no ground for him to stand retrial.

Examining the Constitutional Court ruling and handing down its judgement about it, the local court has defied the top court's ruling on the grounds that "it falls within the scope of review of expediency."

CLICK - Constitutional Court: Rights of Enis Berberoğlu violated

In defying the Constitutional Court ruling, the local court has referred to the Law on the Establishment and Adjudicatory Procedures of the Constitutional Court, saying, "Following an examination as to the merits, the Constitutional Court concludes whether the rights of an applicant have been violated or not. In the event of a ruling of right violation, a judgement is handed down regarding what needs to be done to eliminate its consequences. However, the Constitutional Court cannot make a review of expediency or give any ruling in the capacity of an administrative action or proceeding."

'Requests were rejected in appeals' phase'

Reiterating that the Constitutional Court cannot make any review of expediency after detecting a right violation, the ruling of the local court has indicated that "the requests for the suspension of the trial and stay of the execution previously expressed by the defendant's attorneys were reviewed in appeals' phase and a ruling of rejection was given for these requests."

"After the Constitutional Court detected a violation of right, the proceeding to be undertaken here should be oriented towards ensuring the elimination of the violation without any review of expediency. However, in the judgement handed down by the Constitutional Court, the right violation was detected and the Court then moved on to rule for a retrial and stay of execution in indicating what needs to be done, which entirely falls within the scope of review of expediency," the local court has noted further.

Against this backdrop, the İstanbul 14th Heavy Penal Court has ruled that there is no ground for retrial of Enis Berberoğlu.

Parliamentary Speaker comments on the ruling

Enis Berberoğlu, also a former journalist, was previously an MP from the main opposition Republican People's Party (CHP); however, after his conviction became final, he was stripped of his MP status.

Accordingly, Parliamentary Speaker Mustafa Şentop was asked a question about the recent ruling of the local court yesterday. "When a new situation comes up depending on a final verdict, we will evaluate it,' Mustafa Şentop has said about the issue when he was asked to comment on whether Berberoğlu would return to the Parliament as an MP or not.

CHP Chair has denounced the ruling

CHP Chair Kemal Kılıçdaroğlu has denounced the ruling of the local court which has defied the decision of the Constitutional Court.

"This country has a Constitution," Kılıçdaroğlu has said, adding that "they, as 600 MPs, abide by the Constitutional Court rulings."

"Who inspects us? The Constitutional Court does. Otherwise, we would not be a state of law," Kılıçdaroğlu has indicated further.

Further in his speech, he has said, "A legislative body abides by the ruling of the Constitutional Court, a judicial body says, 'I will not obey the Constitutional Court decisions.' If a lower court says that it will not abide by the decisions of the upper court, then, it means there is a problem. Then, it means there is something rotten. We need to intervene in this."

What happened?

Over a news report on "MİT Trucks" published on Cumhuriyet newspaper, Enis Berberoğlu was sentenced to 25 years in prison on charge of "disclosing information that has to remain confidential for the security of the state or domestic or foreign political interests for purposes of political and military espionage." Following this ruling handed down by the İstanbul 14th Heavy Penal Court, Berberoğlu was arrested on June 14, 2017.

The ruling of the local court was reversed by the 2nd Penal Chamber of the İstanbul Regional Court of Justice, the court of appeals, on October 9, 2017. In its related ruling, the court of appeals noted that "the elements of the crime 'disclosing confidential information for purposes of espionage' would not arise if it was admitted that the secret had been disclosed before."

However, the İstanbul 14th Court of First Instance found this ruling of reversal contrary to both due procedure and the law and returned it.

Reexamining the file, the court of appeals ruled that Berberoğlu should be sentenced to 5 years, 10 months in prison, but this time not for "espionage," but for "disclosing information that has to remain confidential for the security of the state or domestic or foreign political interests." With this ruling, the court also ruled that Berberoğlu should remain behind bars.

The Public Prosecutor of the İstanbul Regional Court of Justice appealed against this ruling. Requesting that Berberoğlu be penalized on charge of "espionage," the prosecutor sent this request to the Court of Cassation.

The petition demanded that Enis Berberoğlu, who was still behind bars at the time, be penalized on charge of "disclosing information that has to remain confidential for the security of the state or domestic or foreign political interests for purposes of political or military espionage."

After Enis Berberoğlu was reelected as an MP from the main opposition Republican People's Party (CHP) on June 24 General Elections in 2018, he applied to the Court of Cassation and requested the stay of the execution of his prison sentence. This request was rejected on July 20.

However, on September 20, 2018, the Court of Cassation accepted the request of stay of execution on the grounds of Berberoğlu's legislative immunity and ruled that he should be released.

The finalized ruling on Berberoğlu was read out at the General Assembly of the Parliament on June 4, 2020 and he was stripped of MP status. He was detained and arrested the next day. On the same day, he was released from prison as part of novel coronavirus (COVID-19) measures.

On September 17, 2020, the General Assembly of the Constitutional Court examined the application of Enis Berberoğlu and concluded that his right to be elected and engage in political activities and right to personal liberty and security had been violated. Around a month later, on October 13, the local court defied this decision and concluded that there was no ground for retrial. (EKN/SD)