(Apr. 9, 2021) On January 21, 2020, the Grand Chamber of the Constitutional Court of Turkey issued its decision in the Kadri Enis Berberoglu (3) case, censuring the Istanbul 14. Criminal Court for refusing to comply with the Constitutional Court’s prior decision in Kadri Enis Berberoglu (2).
The cases arose from complaints made by Kadri Enis Berberoglu to the Constitutional Court. Under article 148/3 of the Constitution of Turkey, any person may apply to the Constitutional Court on the grounds that a constitutional right or freedom guaranteed in the European Convention on Human Rights and its protocols has been violated by public authorities. All ordinary remedies must be exhausted before applying to the court. If the court finds that an eligible right was violated, it will order the measures necessary for the violation to be remedied. (Law No. 6216, art. 50(1).) The court will order a retrial if the violation is caused by a judicial decision. (Art. 50(2).)
Berberoglu is a member of Parliament elected from Istanbul in the November 2015 general elections and a member of the Republican People’s Party (CHP), the main opposition party in Turkey’s Parliament. In April 2016 the chief prosecutor of Istanbul filed a request with the Parliament to have Berberoglu’s legislative immunity suspended on charges that he had unlawfully procured and disclosed confidential state information for the purposes of political or military espionage. The criminal investigation concerned the leaking of information regarding certain alleged activities of the Turkish National Intelligence Organization in relation to the Syrian Civil War, which resulted in the publication of allegations of clandestine weapon shipments into Syrian territory. Under article 83 of the Turkish Constitution, members of Parliament cannot be subject to criminal investigations and prosecution unless Parliament decides to suspend their legislative immunity.
The chief prosecutor’s request was granted by the Parliament when a provisional constitutional amendment was made providing for a blanket suspension of the legislative immunity of MPs for which a request for suspension was pending at the time of the passage of the law. (Const. provisional art. 20.)
Following the suspension of Berberoglu’s legislative immunity, he was convicted in June 2017 in the Istanbul 14. Criminal Court of unlawfully procuring confidential state information of the state for the purposes of espionage and was put in detention and sentenced to 25 years in prison. Berberoglu appealed the conviction, and in February 2018 the Istanbul 2. Regional Court of Justice (court of second instance) reversed the conviction of the lower court, but reconvicted him of the lesser crime of unlawfully disclosing confidential state information and sentenced him to five years and 10 months in prison.
Berberoglu appealed the regional court’s decision to the Court of Cassation, and while his second appeal was pending, he was reelected as a member of Parliament from Istanbul in the June 2018 general elections. With this development, Berberoglu requested the Court of Cassation to suspend the criminal proceedings against him and release him from detention on the grounds that he had regained legislative immunity under article 83 of the Constitution by being reelected as a member of Parliament. In July 2018, the 16. Criminal Chamber of the Court of Cassation dismissed Berberoglu’s request for suspension of the criminal proceedings, finding that his legislative immunity was still waived under provisional article 20 of the Constitution. The court also dismissed Berberoglu’s request to be released, without giving any reasons. Berberoglu’s objections to the dismissals were denied in September 2018.
On September 20, 2018, following the dismissals of his requests, the 16. Criminal Chamber affirmed the regional court’s decision convicting Berberoglu and released Berberoglu from detention, sending the judgment to the Parliament. Berberoglu filed two complaints at the Constitutional Court, claiming that his constitutional right to be elected and perform political activity (art. 67) and right to personal liberty and security (art. 19) had been violated by the 16. Criminal Chamber’s refusal to suspend the criminal proceedings and release him from custody following his reelection as a member of Parliament and the concurrent revesting of his legislative immunity. Berberoglu also argued that his conviction for disclosing confidential state information that was already in the public domain was a violation of freedom of the press (arts. 26 and 28) and that the court’s refusal to let him cross-examine a witness was a violation of his right to a fair trial (art. 36). The Constitutional Court consolidated Berberoglu’s complaints in Kadri Enis Berberoglu (2).
While Berberoglu’s case was pending before the Constitutional Court, the Court of Cassation’s judgment was read in the plenary meeting of the Parliament on June 4, 2020. The judgment stripped Berberoglu of his membership according to article 84/2 of the Constitution. The following day, he was arrested and sent to a minimum-security open prison for the execution of his sentence. On the same day, Berberoglu was released from detention on temporary leave in accordance with COVID-19-related measures, although his status as inmate remained in effect on the date the Constitutional Court announced its decision in Kadri Enis Berberoglu (3).
The Grand Chamber of the Constitutional Court issued its judgment in Kadri Enis Berberoglu (2) on September 17, 2020, holding, inter alia, that the 16. Criminal Chamber’s refusal to suspend Berberoglu’s proceedings and release him upon his reelection was a violation of his right to be elected and to pursue political activity. The court remanded the case to the Istanbul 14. Criminal Court for retrial and remediation of the constitutional right violations.
The Istanbul 14. Criminal Court refused to conduct a retrial and ordered the continuation of the execution of Berberoglu’s sentence. In its decision, the court argued that Law No. 6216 on the Establishment and Procedure of the Constitutional Court did not grant the Constitutional Court the authority to review the use of discretion of ordinary courts and that the Constitutional Court had thus violated the jurisdiction of the ordinary courts by overturning the findings of the Criminal Chamber of the Court of Cassation that rejected Berberoglu’s arguments related to his reelection. Berberoglu objected to the 14. Criminal Court’s decision, and after reviewing the decision, the Istanbul 15. Criminal Court in turn upheld the 14. Criminal Court’s decision on different grounds, ruling that the Constitutional Court had erred in remanding the case to the court of first instance because Berberoglu had originally been convicted by the Istanbul Regional Court of Justice, so the case should have been remanded to that court. Neither the 14. nor the 15. Criminal Courts, however, forwarded the case to the regional court for the execution of the Constitutional Court’s judgment. Following the 15. Criminal Court’s ruling, Berberoglu lodged a third constitutional complaint with the Constitutional Court on October 26, 2020, claiming that the criminal courts’ refusal to enforce the Constitutional Court’s judgment in Kadri Enis Berberoglu (2) constituted a violation of his right to be elected and pursue political activity, and his right to personal liberty and security.
Holding of the Constitutional Court
The Grand Chamber of the Constitutional Court observed that article 153 of the Constitution provided that the decisions of the Constitutional Court were binding on all courts and state organs and that lower courts could not, on any grounds, dispute its judgments or refuse to execute them. (Kadri Enis Berberoglu (3) § 114.) The court remarked that a first degree court’s questioning the decision of the Constitutional Court and refusing to execute it constituted a gross and blatant violation of the rule of law and the principle of legal security. (§ 132.) Furthermore, the court found that the authority of the Constitutional Court included both the determination of the remedy for the violation of rights and the determination of the authority that is required to realize the remedy, reversing the Istanbul 15. Criminal Court’s decision that the judgment could not be executed because the case had been remanded to the wrong court. (§ 115.) The court found that while it had the power to determine the authority that is responsible for executing its orders, courts were free to make requests or delegations to other judicial bodies so long as they were necessary to execute the order of the Constitutional Court. (§ 115.)
The court stated that the provision in article 2 of the Constitution declaring the country to be a state of law (hukuk devleti, i.e., Rechtsstaat, état de droit) was “not merely rhetorical” and that the refusal of a state organ to enforce the judgments of the Constitutional Court for whatever reasons constituted “a gross violation of the rule of law and the constitutional order based thereupon.” (§ 141.)
The court concluded by remarking that
[i]n no legal system may arbitrary decisions be allowed to stand that cause the violation of the fundamental rights and freedoms of individuals through various pretexts or illicit attitudes and conduct and offend the legal order established by the Constitution in a way that would perpetuate the violations of rights. Thus, it is self-evident that the violation of constitutional norms in a state of law will give rise to criminal, administrative, and civil repercussions for the individuals responsible. (§ 142.)
The court ordered the Istanbul 14. Criminal Court to (i) start the retrial process, (ii) stop the execution of Berberoglu’s sentence, (iii) cancel his conviction, and (iv) issue a suspension in the retrial process. (§ 140.) The court thus remanded the case to the trial court, but particularly, also ordered that a copy of the judgment be sent to the Parliament and to the Council of Judges and Prosecutors, which is a body that supervises the career progressions and disciplinary issues of all judges and prosecutors in the country, because “the enforcement of the judgment is not only the duty of the relevant trial courts but also that of the [Parliament] and the Council of Judges and Prosecutors.” (§ 145.)
Aftermath of the Judgment
Berberoglu regained his status as a member of Parliament after the judgment of the Constitutional Court was read in the plenary meeting of the Parliament on February 11, 2021. The president of the Parliament, Mustafa Sentop, remarked in a press statement that the part of the Constitutional Court’s judgment calling on the Parliament to enforce the decision was an improper “political statement” and that the court had acted beyond its powers with its admonition. Reportedly, the Presidency of the Parliament responded to the Constitutional Court by letter, requesting that the judgment “be clarified and the material error be rectified.” The Istanbul 14. Criminal Court started its retrial procedure and sent a request to the Parliament to suspend Berberoglu’s legislative immunity in relation to the retrial. Berberoglu’s objection to the request was denied by the court. The Parliament has not yet made a decision on the request.