Turkey’s highest legal authority, the Constitutional Court, issued a landmark ruling on Dec. 4 that not only sheds a negative light on the country’s judicial bureaucracy, but is also causing discomfort among members of Prime Minister Recep Tayyip Erdogan’s Justice and Development Party (AKP).
The ruling concerns main opposition Republican People's Party (CHP) deputies Mustafa Balbay, a prominent journalist imprisoned since 2009, and Mehmet Haberal, a well-known academic and doctor who founded Baskent University in Ankara and was also detained in 2009. Both were accused of being members of the Ergenekon, the shadowy group that allegedly planned to topple Erdogan and his government through unconstitutional means before it was discovered.
Haberal, who was released some months ago after four years and three months in detention, and Balbay, who remains in prison, are staunch Kemalist supporters of Turkey’s secular system and have been among the harshest critics of Erdogan and the Islamist AKP. Many Erdogan opponents believe the two men, like a large number of the other Ergenekon defendants, were arrested and tried for purely political reasons.
The case against Balbay rested on documents found on his computer’s hard drive as well as recorded conversations he had with various people. Overzealous prosecutors argued that the evidence proved he harbored unlawful intentions toward Turkey's democratically elected government. Balbay denied the charge, asserting that the alleged evidence is nothing but material he had gathered as a professional journalist and does not prove anything.
The evidence against Haberal, who was accused of heading an Ergenekon organization, also rests mostly on private telephone conversations, which were listened in on, during which he is said to have uttered anti-government remarks that were subsequently used as evidence against him. Balbay received a 34-year prison sentence in August, while Haberal received 12 years and 6 months. Both appealed their convictions. Haberal was released early due to time served and has since been sworn into parliament and taken his seat.
In the meantime, Balbay and Haberal approached the Constitutional Court on the grounds of unlawful detention and the violation of their constitutional rights as elected deputies. The court unanimously agreed with the two men, ruling that their detention had been unlawful given their parliamentary immunity, even if they were elected while in prison. The court also ruled that their long pre-trial period detention had been unlawful and awarded Balbay 5,000 Turkish lira ($2,500) in damages. Haberal received no such award.
The court’s ruling was immediately hailed as a victory for justice and the rule of law in many quarters in Turkey. Legal experts say it establishes an important precedent for others arrested or convicted on similar grounds, including a deputy from the Nationalist Movement Party (MHP).
President Abdullah Gul was among the first to welcome it, a fact that could not have pleased everyone in the AKP. Gul had previously made known his displeasure over the length of Balbay and Haberal's incarceration. “I consider this to be very important with regard to the rule of law,” he told reporters in the town of Kilis, after news of the Constitutional Court’s ruling broke. Gul said that the fact that the ruling had been arrived at unanimously made it doubly important, adding that this development would be noted in a positive light abroad.
Deputy Prime Minister Bulent Arinc, a lawyer by profession, also welcomed the Constitutional Court’s opinion, calling it “a positive development which showed the high point Turkish democracy has reached.” He added, “Undoubtedly there are lessons to be drawn from this ruling,” while talking to reporters in the town of Batman and recalling that he had always opposed long pre-trial detentions. Arinc also tried to turn the court’s ruling to his party’s advantage.
He recalled that it was the AKP government that had introduced the right of individuals to petition Turkey's highest court. That right was included in the package of constitutional amendments submitted to a referendum in September 2010 and passed. The government introduced the right to reduce the number of citizens approaching the European Court of Human Rights (ECHR). The large number of applications by Turkish citizens to the ECHR and the equally large number of rulings against Turkey have been a continuing source of embarrassment. More citizens are now reportedly applying to the Constitutional Court, after having exhausted all other legal channels in Turkey, rather than going directly to the ECHR.
The ruling on Balbay and Haberal is also expected to silence skeptics who had argued that despite the right of individuals to petition the court, it would be business as usual because of entrenched habits in the judicial bureaucracy. The Constitutional Court ruling has increased that court's credibility, but has left the judicial bureaucracy looking incompetent. It was, after all, this same bureaucracy that systematically rejected every application by Balbay and Haberal to be released on the grounds of unlawfully long detention and parliamentary immunity.
The Constitutional Court, like the ECHR, is not, however, a court of appeals. It only rules on constitutionality and awards damages on these grounds. Thus, technically speaking, the same judicial bureaucracy can continue insisting on Balbay’s incarceration, although it would be doing so by overlooking a key ruling by the highest court in the land — a legally unsustainable position. CHP leader Kemal Kilicdaroglu, who also welcomed the Constitutional Court ruling, is now insisting that Balbay be released immediately, and party lawyers are acting on it.
Meanwhile, not everyone in the AKP seems as sanguine as Arinc over the prospect that Balbay might be released soon. It is obvious that after he is freed, significant numbers of government opponents will rally around him at a time when Turkey is preparing for a string of elections, starting with local elections in March. It is telling that Prime Minister Erdogan, who in the past has strongly defended Ergenekon prosecutors, has chosen to remain mute on the matter.
Huseyin Celik, a deputy head of the AKP, was clearly uneasy about the Constitutional Court ruling. When asked about it, he said, “Being elected as a deputy should not turn into a devise for getting people out of prison.” He added that it was wrong for political parties to put forth parliamentary candidates who are in jail. “I think that it was sloppy to present those people as candidates and that there is an attempt to subvert the law in this way,” Celik claimed, referring to Balbay and Haberal.
Having maintained that they are democratizing Turkey through cases like Ergenekon, the AKP finds itself in a serious quandary with the Constitutional Court's ruling. Balbay said after the ruling's announcement that he would be working on a public statement to deliver upon his release. Most expect him to be released soon since the legal grounds for keeping him incarcerated are now incredibly shaky.
Erdogan and others, like Celik, are clearly bracing themselves for the hoopla and extensive media coverage that will accompany Balbay’s release. Balbay, like Haberal, will also assume a seat in parliament. While there, he will be a constant reminder of how the government, which claims to be democratizing Turkey, did nothing although it was blatantly clear that his constitutional rights were being violated.
Meanwhile, Balbay and Haberal’s appeals have yet to be finalized, so there are more episodes to come in this case, a prospect that cannot be too pleasing to AKP members and supporters because of its implications for the Ergenekon and parallel Balyoz, or Sledgehammer, case.
Continue reading this article by registering at no cost and get unlimited access to:
- The award-winning Middle East Lobbying - The Influence Game
- Archived articles
- Exclusive events
- The Week in Review
- Lobbying newsletter delivered weekly