Individual Application

The Facts

An investigation was launched against the applicant, who was a member of parliament (MP) at the material time, for disclosing certain information which was subsequently reported in a newspaper. A motion (fezleke) was prepared in order to lift the applicant's parliamentary immunity, and shortly afterwards, a law was adopted by the General Assembly of the Grand National Assembly of Turkey (“GNAT”) whereby Provisional Article 20 was added to the Constitution. The relevant article rendered the parliamentary immunity inapplicable for the investigations and prosecutions pending against MPs by its adoption date.

Following the lifting of the applicant’s parliamentary immunity, the İstanbul Chief Public Prosecutor’s Office indicted the applicant for various offences. At the end of the proceedings before the 14^th Chamber of the İstanbul Assize Court and the regional court of appeal, the applicant was sentenced to 5 years and 10 months’ imprisonment for collecting and disclosing confidential information relating to the security of the State.

While the applicant was detained pending trial, he was re-elected as an MP. Thereupon, he applied to the Court of Cassation for his release, stating that he was entitled to parliamentary immunity again. The Court of Cassation, in the first place, held that the applicant was not entitled to parliamentary immunity, and thus dismissed his request for stay of proceedings. Afterwards, the Court of Cassation upheld the decision of the regional court of appeal. The applicant lost his status as an MP after his sentence had been read out at the GNAT on 4 June 2020.

On 17 September 2020, the Plenary of the Court unanimously held that the applicant’s right to personal liberty and security as well as his right to be elected and engage in political activities had been violated (no. 2018/30030).

The Court’s judgment was sent to the 14^th Chamber of the İstanbul Assize Court which subsequently held that there was no ground for a retrial. The applicant’s lawyers appealed the decision. The 15^th Chamber of the İstanbul Assize Court, having examined the appeal, concluded that there was no ground to make a decision on the appeal. The applicant ultimately filed an individual application for the third time.

The Applicant’s Allegations

The applicant claimed that his right to be elected and engage in political activities as well as his right to personal liberty and security had been violated on the respective grounds that the judgment of the Court finding a violation was not enforced and that his sentence continued to be executed.

The Court’s Assessment

1. Alleged Violation of the Right to be Elected and Engage in Political Activities

In the present case, the 14^th Chamber of the İstanbul Assize Court, specifying that the Court, through its judgment, interfered in the jurisdiction and competence of the inferior courts, held that there was no ground for a retrial and ordered the continued execution of the applicant’s sentence. Having examined the applicant’s appeal, the 15^th Chamber of the İstanbul Assize Court held that there was no ground to make a decision on the appeal since it was the İstanbul Regional Court of Appeal vested with the jurisdiction to hold a retrial.

There is no exception to the provision stipulating that the Court’s judgments are binding, which is enshrined in Article 153 of the Constitution. Accordingly, courts and other bodies exercising public power cannot refrain from enforcing or complying with the Courts’ judgments.

The Constitution does not authorise the public authorities and inferior courts to resist or question the binding nature of the Court’s judgments. The binding nature of the Court’s judgments covers the power to indicate the steps needed to be taken and to designate the authority that will redress the consequences of the violation.

Non-enforcement of the Court’s judgment and failure to redress the consequences of the violation clearly fall foul of the Constitution and are contrary to the will of the constitution-maker.

Despite the Court's judgment finding a violation of the applicant’s right to be elected and engage in political activities safeguarded by Article 67 of the Constitution, the failure to redress the violation and its consequences once again resulted in the infringement of the same right of the applicant.

2. Alleged Violation of the Right to Personal Liberty and Security

The applicant, who was stripped of his status as an MP after his sentence had been read out at the GNAT, was placed in a penitentiary institution on 5 June 2020. Although the Court had found violations of the applicant’s said rights, the first instance court considering that there was no ground for a retrial, ordered the continued execution of his sentence. The applicant’s subsequent appeal was also dismissed.

It has been concluded that the decisions made by the inferior courts run contrary to the wording of the Constitution. Thus, the applicant’s continued placement in the penitentiary institution as a convict lacks a legal basis and is therefore in breach of Articles 83, 153 and 19 of the Constitution.

Consequently, the Court has found a violation of the applicant’s right to personal liberty and security.

3. Further Explanations regarding the Judgment

The Court asked the 14^th Chamber of the İstanbul Assize Court to take the following actions in order to redress the violations found in the applications of Kadri Enis Berberoğlu (2) and Kadri Enis Berberoğlu (3):

i. To initiate the retrial proceedings;

ii. To stay the execution of the applicant’s sentence;

iii. To relieve the applicant of his status as a convict; and

iv. To adjourn the proceedings pending the outcome of the retrial.

The Court has stated that it is obligatory to fulfil the aforementioned procedures.

The state governed by rule of law, enshrined in Article 2 of the Constitution, is not just rhetoric. In a country where the bodies, courts and individuals exercising public power act contrary to the law, a state governed by rule of law ceases to exist.

Despite the explicit provision included in Article 153 of the Constitution referring to the binding nature of the Court’s judgments, the failure to enforce the said judgments on any ground results in grave violations of the principle of rule of law, as well as of the constitutional order based on this principle.

In this scope, arbitrary decisions, which mean to contravene the legal order prescribed by the Constitution thereby resulting in the violations of the individuals’ fundamental rights and freedoms under various pretexts and unlawful attitudes and behaviours, are not acceptable in any legal system.

It is clear that in case of a failure to comply with the constitutional provisions in a state governed by rule of law, criminal, administrative and legal responsibilities will arise with regard to those concerned.

Maintaining the constitutional order is not incumbent solely on the Constitutional Court. Constitutional institutions, bodies exercising public power, natural or legal persons also have an obligation to protect the Constitution and abide by constitutional provisions.

It is not incumbent only on the inferior courts to redress the violations found by the Court in the applications of Kadri Enis Berberoğlu (2) and Kadri Enis Berberoğlu (3) and to comply with the relevant judgments, but also on the other bodies exercising public power, particularly the GNAT and the Council of Judges and Prosecutors. For this reason, the violation judgments should also be communicated to the relevant institutions.