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Lower Turkish court unlawfully defies top court’s decision to retry former lawmaker

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A lower court on Tuesday resisted implementing a ruling by Turkey’s Constitutional Court (AYM), which in September had ordered a retrial of Enis Berberoğlu, a former journalist and previously a member of parliament from the main opposition Republican People’s Party (CHP).

The İstanbul 14th High Criminal Court refused to acknowledge the AYM ruling, which is binding for all subordinate courts across Turkey’s legal landscape.

The AYM ruled on September 17 that the former lawmaker’s right to run for election and participate in politics had been violated, in addition to his rights to personal liberty and security.  

CHP leader Kemal Kılıçdaroğlu condemned the decision, saying that all institutions and citizens must abide by the constitution.

“If a lower court says, ‘I will not acknowledge the top court’s decision,’ [it means] there is a deterioration there. Then a citizen may [well] say, ‘I am not going to pay taxes.’ This [noncompliance] creates a basis for chaos [in the country],” Kılıçdaroğlu said.

Kılıçdaroğlu added that Turkey would not be a country governed by rule of law without the oversight of the AYM, adding, “Then let’s close the AYM.”

İlhan Cihaner, a former prosecutor and a CHP politician, tweeted that the lower court, with its decision, had already shut the top court down.

Berberoğlu was sentenced to five years, 10 months due to a news report that revealed Turkey’s involvement in arms shipments to Islamist groups in Syria in 2014. He was accused of providing Can Dündar, editor-in-chief of the Cumhuriyet daily, with footage of trucks belonging to Turkey’s National Intelligence Organization (MİT) transporting weapons.

Berberoğlu was jailed in 2017 and was re-elected as a member of parliament in the June 24, 2018 elections. He was released on September 20, 2018, when the Supreme Court of Appeals postponed the execution of his sentence due to his re-election.

The lawmaker was jailed again when parliament stripped him of his deputy status on June 4 after his convictions were upheld. On the same day, however, his imprisonment was changed to house arrest as part of measures taken against COVID-19.

During his trials, Berberoğlu had submitted an individual application to the AYM with regard to his imprisonment, saying his continued imprisonment despite his re-election as a deputy had violated his rights. Following the AYM ruling in September in favor of Berberoğlu, his lawyer had called for the reinstatement of his status as a deputy.

The Berberoğlu case is not the first in Turkey in which a local court has refused to acknowledge the top court’s ruling, as occurred with the AYM’s rulings in favor of other prominent figures such as Osman Kavala, a rights activist, and Selahattin Demirtaş, the former leader of Turkey’s pro-Kurdish Peoples’ Democratic Party (HDP).

Despite these rare cases, the top court has repeatedly been criticized for its general stance regarding rights violations, including those of its own former judges Alparslan Altan and Erdal Tercan.

In the wake of a coup attempt in 2016, the AYM dismissed Altan’s complaints despite a ruling by the European Court of Human Rights (ECtHR), which said Turkey had violated Altan’s “right to liberty and security.”

AYM President Zühtü Aslan had also attracted fire from critics on social media for bowing to Turkish President Recep Tayyip Erdoğan during a ceremony in 2017, a move that was seen as a lack of independence of the judiciary.

Nevertheless, the top court has been unable to avoid recent attacks by the ruling Justice and Development Party (AKP) and its ally the Nationalist Movement Party (MHP). On September 30 MHP leader Devlet Bahçeli called for a restructuring of the AYM in line with the new executive presidency in the country. Immediately afterward, Erdoğan and a number of AKP members announced their support for Bahçeli’s proposal.

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