Second court disregards Turkey’s Constitutional Court order on former MP Berberoğlu

(Updates with comments from Parliamentary Speaker)

Istanbul’s 15th Heavy Penal Court has disregarded the Turkish Constitutional Court’s (AYM) ruling in favour of former member of parliament Enis Berberoğlu, responding to an appeal to the lower court, daily BirGün reported on Friday.

The two courts have stated that there was no need for a retrial for Berberoğlu, despite the AYM ruling that the former deputy’s rights to participate in politics and personal freedom had been violated, and upheld the prison sentence of five years and ten months the lower court issued.

Berberoğlu’s lawyers are preparing to appeal to the AYM directly, following the rejection of their appeal to the lower court. The AYM will then have to “rule whether an appeals court can issue such a ruling, and whether to press charges (against the court),” lawyer Turgut Kazan told BirGün, adding that the judges who disregarded AYM rulings had abused their position.

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

The lower court’s decision to reject Berberoğlu’s appeal had led to a crisis over the AYM, when a member of the top court posted a tweet that government officials interpreted as plotting for a military coup last week.

The Republican People’s Party (CHP) called for the reinstatement of its former deputy’s parliamentary status in September, citing the AYM ruling.

Legal proceedings against Berberoğlu started before his election to parliament in 2018, over charges of espionage and revealing state secrets for allegedly providing Cumhuriyet newspaper with footage incriminating Turkey’s intelligence agency MİT. The Court of Cassation finalised the prison sentence in 2018, but deferred the execution of his sentence until after his term in parliament was over.

Berberoğlu was stripped of his status in June, alongside two HDP deputies, and briefly detained until he was released as part of Turkey’s coronavirus measures.

AYM rulings are binding, Turkish Parliamentary Speaker Mustafa Şentop said during an interview on news channel NTV later on Friday evening.

“The AYM ruling is binding, like the Court of Cassation’s was,” Şentop said. “I believe that the court in question must comply with this ruling. Our judicial system does not have an institution of commenting on, assessing, modifying, or annulling constitutional court rulings.”

However, the AYM ruling has not lifted the finalised prison sentence, the speaker added.

“The relevant judicial body would need to issue another ruling on that matter, according to the AYM,” Şentop said. “If the finalised sentence is lifted, then a discussion can be had whether (Berberoğlu) should be reinstated.”