Information Note on the Court’s case-law No. 125
December 2009
Kart v. Turkey [GC] - 8917/05
Judgment 3.12.2009 [GC]
Article 6
Criminal proceedings
Article 6-1
Access to court
Criminal charge
Inability of a parliamentarian to have his parliamentary immunity lifted to enable him to defend himself in criminal proceedings: Article 6 § 1 applicable; no violation
Facts – In the course of his professional activities as a lawyer, two sets of criminal proceedings were brought against the applicant. Subsequently, in 2002, he was then elected to the Grand National Assembly of Turkey, where he enjoyed parliamentary immunity. The National Assembly’s joint committee was asked to lift the applicant’s immunity, but decided to stay the criminal proceedings against him until the end of his term of parliamentary office, and transmitted that decision to the plenary Assembly of the National Assembly. The applicant objected, arguing that he had the right to be judged in a fair trial, but to no avail. He was elected to Parliament for a second term in 2007 and the files concerning his request to waive his parliamentary immunity remained pending before the parliamentary body.
In a judgment of 8 July 2008 (see Information Note no. 110), a Chamber of the Court found a violation of Article 6 § 1 of the Convention.
Law – Article 6 § 1: a) Applicability – A person’s situation was necessarily affected when criminal accusations remained pending against him for a long period. There was no doubt that what was at issue in this case was the applicant’s right to have his case heard within a reasonable time. It had therefore to be concluded that Article 6 § 1 was applicable.
b) Compliance – It was in relation to the need to preserve the institutional purpose of parliamentary inviolability that the effect on the applicant’s rights of the manner in which inviolability had been applied in his case had to be examined: the less the measure served to protect the integrity of Parliament, the more compelling its justification had to be. Decisions whether or not to lift immunity indubitably fell within the margin of appreciation of the States. In order to make sure that the rule of law had been respected, the first step was to examine the institutional configuration of the system of parliamentary inviolability in Turkish law and the conditions of its implementation. It was true that the inviolability enjoyed by Turkish MPs appeared to be broader in many respects than that enjoyed by MPs in certain other member States. However, the scope of the protection afforded could not be deemed excessive in itself. It was relative; it was limited to the duration of the MP’s term, and it was subject to an exception, in that it could be lifted. It applied only to criminal matters. It did not apply in certain cases of flagrante delicto or specific crimes against the regime or the State. Furthermore, while the scope of parliamentary inviolability in Turkey was more broadly defined, it did not seem to be at odds with the solutions adopted in most European parliamentary systems. In the present case it had clearly had the effect of preventing criminal proceedings against the applicant from taking their full course. However, the applicant’s interest in this respect was to be weighed against his right to a court and not against any right to have his immunity lifted at his request. Such decisions were a matter for the internal proceedings of Parliament and therefore fell within that body’s sphere of competence alone. The Court’s role was to examine whether the parliamentary procedure followed was compatible with the rights guaranteed by the Convention. The parliamentary procedure for examining requests to lift immunity was defined and regulated by the Constitution and the Rules of Procedure of the National Assembly, which laid down the procedure to follow. That procedure appeared to be subject to certain formalities which secured respect for the rights of the defence at every stage of the decision-making process and a right of appeal against the decisions taken by the relevant parliamentary bodies. Indeed the applicant had had the possibility of exercising the rights thus guaranteed by filing an objection to the decisions to suspend the criminal proceedings against him. Furthermore, the machinery for implementing parliamentary liability by a decision to lift or not to lift immunity was one of the ways in which Parliament exercised its autonomy. Such decisions were political decisions by nature and not court decisions, so they could not be expected to satisfy the same criteria as court decisions when it came to giving reasons. Moreover, there had been a constant trend in the practice of the parliamentary bodies concerned since the election of the 22nd Parliament not to grant any request to lift an MP’s immunity. The procedure followed here seemed to have been devoid of any discriminatory or arbitrary character. Also, while the examination of the requests by the relevant parliamentary committees was limited in time by predefined deadlines, that was not the case once they had been transferred to the plenary Assembly. In the present case the Court could not ignore the fact that the applicant had had criminal accusations hanging over him for over six years, and the situation could remain the same until he ceased to be a Member of Parliament. There was therefore no denying that the uncertainty inherent in any criminal proceedings had been accentuated in this case by the impugned parliamentary procedure, as the delays it had caused had resulted in equivalent delays in the criminal proceedings. However, while the Chamber had found such a delay to be prejudicial to the applicant, the Grand Chamber was unable to ignore the special nature of the applicant’s status and the specificity of the impugned procedure: the connection between an MP’s parliamentary immunity and his status was a fundamental aspect of the matter at issue. The criminal proceedings at the origin of the applicant’s complaint had been brought against him prior to his election to Parliament. As a lawyer he could not have been unaware of the consequences his election would have on the proceedings in question, namely that he would not be able to waive his inviolability or have it lifted merely at his request. Having regard to the unusual nature of the complaint, in which immunity was perceived not as an advantage for the beneficiary but as a disadvantage linked to parliamentary office, the Court found that the degree of prejudice suffered was also a factor to be taken into account in determining the impact of the delay, inherent in MP status, on the applicant’s right to have his case heard by a court. It was important when assessing any prejudice suffered by the applicant to bear in mind that the impugned delay was the time taken by the parliamentary procedure for examining requests for the lifting of immunity and not the time taken to complete criminal proceedings as such. There was no reason in this case to consider that the applicant would not be able to have a fair trial when he ceased to be an MP. The parliamentary procedure did not appear to have adversely affected that possibility in any way, particularly as it had not affected the presumption of innocence to which all accused persons were entitled. Sight should not be lost here of the fact that the decisions taken by parliamentary bodies in this connection served no penal or repressive purpose but were aimed in principle – as the lifting of immunity was generally refused – at protecting MPs rather than harming them. In the present case, not only was the obstruction to criminal proceedings as a result of parliamentary inviolability only temporary, but in principle Parliament did not intervene at all in the course of justice as such. In this case, when examining the applicant’s request to lift his immunity Parliament seemed only to have considered whether inviolability, as a temporary obstacle to judicial action, should be lifted immediately or whether it was preferable to wait until the end of the applicant’s term in Parliament. The effect had thus merely been to suspend the course of justice, without influencing it or taking part in it. As to the applicant’s allegations that the proceedings against him had tarnished his reputation, it was in the very nature of this form of prejudice to manifest itself as soon as an official accusation was lodged. In this case, however, there was no doubt that the applicant’s honour and reputation had been protected by the principle of the presumption of innocence.
In the light of the above, the Court considered that while the delay inherent in the parliamentary procedure had affected the applicant’s right to have his case heard by a court, in delaying the proceedings it had not, in the instant case, impaired the very essence of that right. As it was limited in time and covered by special rules concerning, inter alia, the suspension of the running of time for the purposes of limitation, the impugned immunity merely constituted a temporary procedural obstacle to the criminal proceedings, by no means depriving the applicant of the possibility of having his case tried on the merits. With regard to the requirements of the rule of law, however, the type of immunity associated with the applicant’s status as an MP was valid only because of the legitimacy of the aims pursued, namely, to preserve the integrity of Parliament and protect the opposition. The applicant’s inability in this case to waive his inviolability fell within the scope of the legitimate aims thus defined. In that sense individual renunciation by the applicant was no substitute for a decision of the National Assembly. Lastly, as the right to obtain a judgment in respect of criminal accusations was not absolute, in particular when there was no fundamental irreversible detrimental effect on the parties, the failure to lift the applicant’s parliamentary immunity had not impaired his right to a court to a degree disproportionate to the legitimate aim pursued.
Conclusion: no violation (thirteen votes to four).
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This summary by the Registry does not bind the Court.
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