Kart v. Turkey

Avrupa İnsan Hakları Mahkemesi

Karar Metni

Information Note on the Court’s case-law No. 110

July 2008

Kart v. Turkey - 8917/05

Judgment 8.7.2008 [Section II]

Article 6

Criminal proceedings

Article 6-1

Access to court

Inability of a parliamentarian to have his parliamentary immunity lifted to enable him to defend himself in criminal proceedings: violation

[This case was referred to the Grand Chamber on 1 December 2008]

Facts: In the course of his professional activities as a lawyer, two sets of criminal proceedings were brought against the applicant. Then he was elected to the National Assembly, which entitled him to parliamentary immunity. The Assize Court adopted a decision interrupting the criminal proceedings, in accordance with the Constitution and the Code of Criminal Procedure, and transmitted the case file with a view to having the applicant’s parliamentary immunity lifted. The applicant also applied for his immunity to be lifted. In his memorial he argued that parliamentary immunity had been introduced not to exempt MPs from accountability or prevent them being punished for their acts, but to enable them to do their jobs in full independence and peace. He also submitted that, unlike unaccountability, immunity was by nature a relative and temporary privilege. Having said that, the extent of the immunity, the procedure for lifting it and the shortcomings in its implementation had actually undermined the respect the National Assembly deserved. The applicant added that to turn an institution initially intended to enable MPs to do their job properly into a personal privilege was incompatible with the rule of law. However, the joint committee of the National Assembly decided to stay the criminal proceedings against the applicant until the end of his term of office. The applicant objected, relying on his right to a fair trial. The files concerning the applicant’s request to have his immunity lifted remained on the agenda of the plenary Assembly for over two years, until the following elections, without ever being examined. Meanwhile, the applicant was re-elected to parliament. The Speaker of the National Assembly then informed him that the files concerning the lifting of his immunity were pending before the joint committee.

Law: Under the Turkish Constitution, no MP suspected of having committed an offence before or after his election could be arrested, questioned, detained or prosecuted unless the National Assembly decided to lift his immunity. Parliamentary immunity served a legitimate purpose, namely to ensure the full independence of members of parliament and of parliament itself. Proceedings brought against an MP could affect the smooth operation of parliament and disrupt its work. In view of the legitimate aim pursued, therefore, little did it matter what the nature of the event that gave rise to the proceedings was – in this case an event with no bearing whatsoever on the applicant’s parliamentary functions. However, the exemptions that went with parliamentary immunity were legitimate only in so far as they related to the MPs’ work and did not constitute a personal privilege but a principle of political law aimed at protecting not the individual but the function he or she fulfilled. It mattered little, therefore, that the facts concerned had taken place prior to the parliamentary election. However, the legitimacy of parliamentary immunity did not rule out the need to review the proportionality of the measure in respect of the applicant’s rights under Article 6 of the Convention. The provisions of the Constitution should not result in the applicant being denied due process. The granting of parliamentary immunity fell within the margin of appreciation left to the State. However, the immunity enjoyed by Turkish MPs appeared broader than that enjoyed by members of other legislative bodies in Europe. It applied to both criminal and civil law matters, and to acts committed prior to becoming an MP as well as those committed while in parliamentary office. In itself, a regulation providing for absolute parliamentary immunity could not be considered to overstep the margin of appreciation enjoyed by States in limiting people’s access to a court. Parliamentary immunity was a matter of public policy, which meant that the judicial authorities were obliged to take it into account as a matter of course, and acts that did not follow that rule were void. Moreover, as parliamentary immunity was not a right to which MPs were entitled as individuals, the applicant could not relinquish it as of right. He could, however, ask the assembly of which he was a member to lift it; just as that assembly had the power to lift the immunity at the request of the judicial authorities. Under Turkish law, when the joint committee received a request to lift an MP’s immunity it could decide, after seeking the advice of a preparatory committee, either to lift the parliamentary immunity or to stay the criminal proceedings against the MP concerned. When the joint committee chose to stay the proceedings, the decision could be appealed before the plenary Assembly, which would then decide whether or not to lift the immunity. There were no legal provisions, however, defining the conditions under which immunity could be lifted. The criteria seemed to be primarily political. Thus, the lack of explanation by the joint committee of the reasons for its decision, together with the lack of clearly defined objective criteria governing the lifting of immunity, would effectively deprive all the parties concerned by the decision of the means of defending their rights. Furthermore, there was no requirement of promptness and no time-limit in the procedure for lifting parliamentary immunity. The applicant’s case had thus remained on the National Assembly’s agenda for more than two years without any decision being taken, in spite of the applicant’s wishes. Lastly, the suspension of all criminal proceedings against an MP during his or her term of office meant that a long time would necessarily elapse between the commission of the offences concerned and the opening of criminal proceedings, making the proceedings uncertain, particularly where evidence was concerned. The time it took to examine an action could affect its effectiveness. The applicant had directly suffered the consequences of such a delay. In that respect the immunity enjoyed by MPs in Turkey was a controversial subject which came under strong public criticism and had been identified as one of the major problems in dealing with corruption. The procedure for lifting parliamentary immunity had also been undermined by the fact that the plenary Assembly clearly appeared reluctant to use its powers in the matter. In such a context the Court understood the applicant’s concerns about the repercussions and the risk of discredit when there was such a long delay, the lack of a decision as to whether or not to maintain his parliamentary immunity being easily perceived as an attempt to gain time and delay the course of justice. It could only regret that no account had been taken of his clear desire to waive his immunity. The opacity of the decision-making process, the lack of objective criteria governing the lifting of immunity, the inertia on the part of the National Assembly, which had refrained from determining the applicant’s case, and the delays in the proceedings, which were still pending before the national courts, amounted to so many obstacles that had prevented the applicant from having his case decided on the merits by the criminal courts. That being so, the decision-making process in question and the manner of its implementation could not be considered compatible with the proper administration of justice and had interfered with the applicant’s right of access to a court, to a degree which could not be considered proportionate to the legitimate aim pursued.

Conclusion: violation (four votes to three).

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