MESOP OPINION : Is there a different legal system for the Kurds? / By ORHAN KEMAL CENGİZ

17-12-2013 – Mustafa Balbay, an elected deputy for the main opposition Republican People’s Party (CHP), was released from prison pending his appeal after the Constitutional Court decided that his continued detention violates the Constitution and his rights under the European Convention on Human Rights (ECHR).

After Balbay’s release, three deputies from the pro-Kurdish Peace and Democracy Party (BDP) applied to the Diyarbakır Criminal Court petitioning for their release, arguing that Constitutional Court’s decision and general principles mentioned in it also apply to them. But their demand was simply denied by the court. I did not see the reasoned decision of the court, but most probably it says the same thing as the prosecutor who demanded the court not release the arrested deputies. He said the decision by the Constitutional Court regarding Balbay is only binding for Balbay and has no effect on others who have not applied to the Constitutional Court themselves. The prosecutor is of course utterly wrong in this interpretation given the nature of the individual application process to the Constitutional Court. The Constitutional Court is not an appeals court; it only reviews applications to determine if applicants’ rights under the Constitution and the ECHR are being violated. Therefore, any general principles it cites are binding on everyone and every institution in Turkey — not only those who apply to this court.

The Constitutional Court decided that Balbay’s detention violates the Constitution because “the right to be elected does not only include the right to be a candidate in elections, but at the same time includes the right to be present in Parliament as a lawmaker after being elected. Without a doubt, this requires the person to be able to actively use their authority as a lawmaker after being elected. In this context, intervention in the participation of an elected lawmaker in legislative activity may constitute an infringement on the voters’ right to declare their free will and not only on his right to be elected. … The ECHR, starting with the relationship between a lawmaker and the electorate, has emphasized that freedom of expression is particularly important for elected representatives of the people because the lawmaker represents the electorate and defends their [the electorate’s] interests by drawing attention to their demands, and thus infringement on the freedom of expression of a lawmaker requires a more vociferous defense.

Mustafa Balbay, sentenced to 35 years in prison, was freed pending appeal by the İstanbul Criminal Court after the Constitutional Court made the above-mentioned decision. The Constitutional Court did not rule that Balbay is innocent or that he did not commit the crimes he is accused of. Basically, the court decided that his detention period was long and in violation of his right to be elected. The Constitutional Court’s findings should ring even truer for the Kurdish deputies who have not even been convicted of anything yet. They are still being tried by the criminal court, which has not made a ruling yet. If the Constitutional Court’s decision is sufficient for the release of Balbay, who has been convicted but has appealed, then this decision should be more than sufficient for the Kurdish deputies who have not been convicted but are being tried in the Kurdistan Communities Union (KCK) case and who have been in prison since 2009.

The Diyarbakır Criminal Court has resisted recognizing the binding effect of the Constitutional Court’s decision, and this forces us to ask if there are different legal standards for the Kurds in this country.