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Lower court can’t defy top court ruling to retry ex-MP: Turkish parliament speaker

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Turkish Parliament Speaker Mustafa Şentop has criticized a decision by an İstanbul court to disregard a ruling by the Constitutional Court (AYM) for the retrial of Enis Berberoğlu, a former journalist and previously a member of parliament from the main opposition Republican People’s Party (CHP).

The İstanbul 15th High Criminal Court on Friday declined to implement the AYM ruling in favor of Berberoğlu, following a decision by the İstanbul 14th High Criminal Court earlier in October to refuse to acknowledge the ruling, which according to the Turkish constitution is binding for all subordinate courts across Turkey’s legal landscape.

Stating that there was no need for a retrial, both courts upheld Berberoğlu’s prison sentence of five years, 10 months despite the AYM’s ruling on September 17 that the former lawmaker’s right to run for election and participate in politics had been violated as well as his right to personal liberty and security. 

Berberoğlu was sentenced on charges of espionage and revealing state secrets due to a news report exposing Turkey’s involvement in arms shipments to Islamist groups in Syria in 2014. He is accused of allegedly providing Can Dündar, editor-in-chief of the Cumhuriyet daily, with footage of trucks belonging to Turkey’s National Intelligence Organization (MİT) transporting weapons.

During an interview on news channel NTV on Friday, Şentop reminded that AYM rulings are binding.

“I believe the court in question must comply with this [AYM] ruling. Our judicial system does not have a mechanism for commenting on, assessing, modifying or annulling constitutional court rulings,” he explained.

Pointing out that the AYM ruling did not vacate Berberoğlu’s prison sentence, Şentop added: “The relevant judicial body would need to issue another ruling on that matter, according to the AYM decision. If the sentence already upheld by an appeals court is lifted, then a discussion can be had whether he should be reinstated.”

“If you move this process from its legal ground to a political one, the outcome will not be healthy. We should evaluate this case without losing the legal ground,” Şentop said.

Following the rejection of their appeal to the lower court, Berberoğlu’s lawyers are preparing to appeal to the AYM directly, the BirGün daily reported on Friday. Lawyer Turgut Kazan told BirGün that the AYM would then have to “rule whether an appeals court can issue such a ruling, and whether to press charges [against the court],” adding that the judges who disregarded AYM rulings had abused their power.

“If there is no rule of law in the country, Enis Berberoğlu will remain a convicted member of parliament. This, of course, means that the constitution is not being observed,” Kazan said.

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

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.

Berberoğlu had submitted an individual application to the AYM with regard to his imprisonment and said his continued imprisonment despite his re-election as a deputy had violated his rights. His lawyer had called for the reinstatement of his status as a deputy after the AYM ruled in favor of Berberoğlu in September.

Local courts in Turkey have previously refused to acknowledge the top court’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).

President Recep Tayyip Erdoğan announced his support for the overhaul of Turkey’s highest court in early October after his ally, Nationalist Movement Party (MHP) leader Devlet Bahçeli, called for a restructuring of the AYM in line with the new executive presidency that was introduced in the country in 2018 thanks to backing from MHP.

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