Case of jailed CHP deputy, journalist Berberoğlu confirms end of rule of law in Turkey

Jailed CHP deputy and journalist Enis Berberoğlu is seen with his wife and his daughter in this photo taken in prison during a open meeting.

Kadri Enis Berberoğlu (62) is a Turkish journalist, writer and politician. He is a deputy, member of the party assembly and deputy chairman of Turkey’s main opposition Republican People’s Party (CHP).

Berberoğlu was arrested by a Turkish court on June 14, 2017 on charges that he allegedly gave images of a security operation that interrupted trucks belonging to Turkey’s notorious National Intelligence Organisation (MİT) which were carrying weapons and ammunition to jihadist rebel groups in Syria to journalist Can Dündar, who was then editor-in-chief of the Cumhuriyet daily.

The court had sentenced Berberoğlu 25 years in prison. Normally, parliamentarians have legislative immunity in Turkey. Therefore, the investigation and trial proceedings must be suspended until the end of their term in Parliament. However, a temporary constitutional amendment that the ruling Justice and Development Party (AKP) leader and President Recep Tayyip Erdoğan succeeded in passing in Parliament with the help of the CHP to arrest the pro-Kurdish Democratic Peoples’ Party (HDP) deputies paved the way for the arrest of Berberoğlu, too. By supporting the anti-democratic change in the constitution in order to arrest the HDP deputies, the CHP and its leader Kemal Kılıçdaroğlu also caused the arrest of their deputy Berberoğlu.

Berberoğlu was convicted at the İstanbul 14th High Criminal Court for allegedly giving images of MİT trucks to journalist Dündar. The court sentenced Berberoğlu to 25 years in prison for allegedly “exposing state secrets that must be kept for the sake of the state’s security and its domestic and international political interests, as part of political and military espionage.” With this ruling, the court had confirmed that the AKP government sent weapons to Syria but classified it as a state secret.

A regional court of appeals, which re-examined the case in an appeal, this time sentenced Berberoğlu to five years, 10 months’ imprisonment, not on the offense of espionage but for allegedly exposing information that should be kept secret in terms of security and the domestic or external political benefits of the state. However, the prosecutor’s office insisted on punishing his alleged action as espionage and applied to the Supreme Court of Appeals, whose 16th Criminal Chamber has yet to examine the appeal and rule on the case.

Berberoğlu was again elected to parliament in the June 24, 2018 general election. The common view of lawyers is that he is now out of the scope of the relevant temporary article. However, the Supreme Court of Appeals and the Constitutional Court, which were redesigned after a controversial coup attempt on July 15, 2016, rejected all requests for Berberoğlu to benefit from his parliamentary immunity. Prof. Dr. İzzet Özgenç, one of the law professors who drafted the Turkish Penal Code (TCK) that the AKP government enacted in 2005, said these top court rulings are wrong.

“The temporary article added to the constitution is not a general regulatory provision and limited to certain activities. There is no doubt in the case of Berberoğlu that the articles in the Constitution that say ‘the investigation and prosecution of a re-elected deputy depend on the removal of parliament’s immunity again’ are still valid. We do not see the decision of the 16th Criminal Chamber of the Supreme Court of Appeals as legally correct.”

Özgenç also made an assessment in a post on his personal Twitter account and argued that in order to continue to try Berberoğlu, his immunity should be lifted by the Turkish Parliament again.

The Constitutional Court also rejected an appeal made by Berberoğlu which said his imprisonment “violated [his] right to freedom and security” and “[his] right to be elected on the grounds that [he] failed to perform [his] duties as a deputy.” However, the same court had previously responded favorably to the demands of CHP deputies Tuncay Özkan and Mustafa Balbay in the same situation. This contradictory situation is attributed to Turkish President Recep Tayyip Erdoğan’s personal anger about the revelation of MİT trucks that were carrying weapons and ammunition to radical Islamist/jihadist groups in Syria.

Another contradiction in the decision of the court has been its privileged approach to the neo-nationalist Aydınlık newspaper, which published the same story about 15 months before the Cumhuriyet daily. An indictment was also drafted against the Aydınlık newspaper  due to public reaction following the opening of court cases against Dündar and Berberoğlu. However, lower penalties were demanded on the grounds that “there was no connection to FETÖ.”

“FETÖ” is a derogatory term coined by the ruling AKP and President Erdoğan to refer to the Gülen movement. Although Berberoğlu was quickly convicted, the case against the Aydınlık newspaper has not yet begun and no one from that newspaper has been detained.

Berberoğlu, a leading economy journalist in the Turkish media, is a graduate of the Austrian High School and Boğaziçi University’s department of economics. He has also a master’s degree in econometrics. Berberoğlu worked as a columnist for the Dünya, Hürriyet and Radikal newspapers. He also worked as economy editor for CNN Türk TV. He served as editor-in-chief of the Hürriyet daily, which he was previously the Ankara bureau chief for many years.

Berberoğlu was elected for the CHP’s Party Assembly during the 18th extraordinary congress held in Ankara between September 5-6, 2014. He was appointed by CHP leader Kemal Kılıçdaroğlu as vice chairperson for communications and media relations on September 14, 2014.

He is married to journalist Oya Berberoğlu and has a daughter. Berberoğlu, who speaks German and English, wrote a number of books including “Susurluk: The 20-year-old Domino Game” (Susurluk: 20 Yıllık Domino Oyunu), “Code Name: Yüksekova — the Susurluk, Ankara, Bodrum, Yüksekova Fault Line” (Kod Adı: Yüksekova. Susurluk, Ankara, Bodrum, Yüksekova Fay Hattı) and “The Other Turks” (Öbür Türkler).

His wife Oya Berberoglu said she has expected justice to manifest itself for a long time; however, she has been disappointed by the continuation of unlawfulness in their case for two-and-a-half years.

“We have always been journalists who have advocated for parliamentary immunity. Our principles are clear. Enis has not committed any crime. On an allegation that he gave old news to a journalist without any evidence he was sentenced to life imprisonment. A regional court of appeals reduced his sentence to 25 years, 10 months.

“A pending trial is essential in the law; however, even this principle was not applied to him. The 16th Criminal Chamber of the Supreme Court of Appeals has ignored his constitutional parliamentary immunity despite the fact that he was re-elected as a deputy. As a political prisoner in solitary confinement, he has spent 15 months in prison.

“We have always trusted in rights, laws and justice. But now my trust is eroding. Unfortunately, there is a [judicial] structure that changes according to the political winds. This cannot be seen as a real judiciary or a legal system. Neither the rule of law nor the separation of powers is all in their place! All have been destroyed. Universal law, the provisions of the Constitution are under [the nation’s feet]. As a citizen, I am so sorry on behalf of my country.”

Enis Berberoğlu has decided to protest the arbitrary approaches of the judiciary by not defending himself before the court and not exercising his other rights. “I thought over how would I react to the violation of my constitutional rights by the 16th Criminal Chamber of the Supreme Court of Appeals. As a result, I have decided to not exercise my rights to open meetings with my family, lawyers and members of parliament. I have also decided not to exercise the right to defend myself before the court and to cut communications with the outside world. Naturally this difficult decision will not make my family, my lawyers, my party and those who love me happy. Therefore, I have to implement this decision as independent from them and even against their will. But everyone should know that my intention is not to upset them; on the contrary, it is to protect them.”

The Berberoğlu case is one of the cases that demonstrate the end of the rule of law in Turkey. But more importantly, the AKP government and President Erdoğan seem to be committing suicide in regard to international law. Through this awkward case, the Turkish government has declared to the whole world that “there were weapons and ammunition in those MİT trucks and the state was sending them to jihadist rebel groups in Syria.”

Turkey is ranked 157th among 180 countries in the 2018 World Press Freedom Index released by Reporters Without Borders (RSF). If Turkey falls two more places, it will make it to the list of countries on the blacklist, which have the poorest record in press freedom.

Turkey is the biggest jailer of journalists in the world. The most recent figures documented by SCF show that 237 journalists and media workers were in jail as of August 15, 2018, most in pretrial detention. Of those in prison 169 were under arrest pending trial while only 68 journalists have been convicted and are serving their time. Detention warrants are outstanding for 145 journalists who are living in exile or remain at large in Turkey.

Detaining tens of thousands of people over alleged links to the Gülen movement, the government also closed down some 200 media outlets, including Kurdish news agencies and newspapers, after a coup attempt in Turkey on July 15, 2016.

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