Press Release No: Individual Application 64/20
Press Release concerning the Judgment Finding a Violation of the Right to be Elected and Engage in Political Activities for Denial of Parliamentary Immunity of the Re-elected Member of the Parliament
On 17 September 2020, the Plenary of the Constitutional Court found violations of the right to be elected and engage in political activities as well as the right to personal liberty and security, respectively safeguarded by Articles 67 and 19 of the Constitution, in the individual application lodged by Kadri Enis Berberoğlu (no. 2018/30030).
An investigation was launched against the applicant, who was a Member of Parliament (MP) at the material time, for disclosing certain information to a journalist, which was subsequently reported in a newspaper, namely disclosing confidential information of the State for purposes of political and military espionage and aiding the Fetullahist Terrorist Organisation/Parallel State Structure (“FETÖ/PDY”) knowingly and willingly.
A motion (fezleke) was prepared in order to lift the applicant's parliamentary immunity, and shortly afterwards, a law was adopted by the General Assembly of the Grand National Assembly of Turkey (“GNAT”) to add Provisional Article 20 to the Constitution, which rendered the parliamentary immunity inapplicable for the pending cases/investigations against MPs. Following the entry into force of the aforementioned article, the chief public prosecutor’s office indicted the applicant before the assize court. On 14 June 2017, the first instance court sentenced the applicant to 25 years’ imprisonment for disclosing confidential information, and ordered his detention.
Subsequently, on 18 July 2017, the applicant appealed the judgment, requesting the quashing of his conviction as well as his release. On 13 February 2018, the regional court of appeal quashed the first instance court’s decision, and sentenced the applicant to 5 years and 10 months’ imprisonment for disclosing confidential information within the scope of the security of the state or its domestic or foreign political interests, also ordering the continuation of his detention. On 9 March 2018, the applicant, appealing against the regional court of appeal’s decision, requested to be released.
While the applicant was detained pending trial, he was re-elected as an MP. Thereupon, the applicant, applying to the Court of Cassation where the appellate review of his case was still pending, requested his release, stating that he was entitled to parliamentary immunity again for his having been re-elected as an MP. The Court of Cassation, relying on Provisional Article 20 of the Constitution, held that the applicant was not entitled to parliamentary immunity, and thus dismissed his request for the stay of proceedings. As for the applicant’s detention on remand, the Court of Cassation, without relying on any grounds, held that the applicant’s request in this regard be evaluated concurrently with the merits of the appellate request. The Court of Cassation, having examined the applicant’s subsequent appeal, held that there was no ground to decide on the stay of proceedings as well as the applicant’s detention. Thereupon, the applicant filed an individual application.
Meanwhile, on 20 September 2018, the Court of Cassation upheld the decision of the regional court of appeal. It was also stated therein that a copy of the final judgment would be sent to the GNAT for the necessary action to be taken in accordance with Article 84 § 2 of the Constitution and that the applicant would be released pursuant to Article 83 § 3 of the Constitution on the ground that a criminal sentence imposed on a member of the parliament either before or after his election could be executed only after he ceased to be a member.
The applicant lodged an individual application for the second time upon the final assessment of the Court of Cassation. The applications were joined since they were interrelated both ratione personae and ratione materiae.
The applicant's status as an MP ended after his conviction decision was read out at the GNAT on 4 June 2020.
The Applicant’s Allegations
The applicant claimed that his right to be elected and engage in political activities as well as his right to personal liberty and security had been violated, stating that the proceedings against him were continued and he was held in detention on remand even after he was entitled to parliamentary immunity following his re-election.
The Court’s Assessment
A. Alleged Violation of the Right to be Elected and Engage in Political Activities
It is understood that in the present case, the first sentence of Article 83 § 2 of the Constitution, which provides “A deputy who is alleged to have committed an offence before or after election shall not be detained, interrogated, arrested or tried unless the Assembly decides otherwise” is a general rule, while Provisional Article 20 thereof introduces an exception to the relevant general rule.
Pursuant to Article 83 § 4 of the Constitution, which stipulates that parliamentary immunity shall be granted throughout a legislative session and lifted at the end of the session, a re-elected MP shall be, as a rule, entitled to parliamentary immunity again.
Since Provisional Article 20 explicitly constitutes an exception to Article 83 § 2, there is no exceptional provision that precludes the parliamentary immunity of a re-elected MP under Article 83 § 4. Since such an exceptional provision has not been introduced separately and explicitly by the constitution-maker, newly elected MPs shall fully enjoy the immunity granted by Article 83. In that vein, unless the GNAT lifts their immunity again, they cannot be investigated and prosecuted.
In the present case, Article 83 of the Constitution, which is the general rule, was interpreted in narrow sense, while Provisional Article 20, which is the exceptional rule, was interpreted in broad sense. An exception cannot be interpreted broadly, and its scope cannot be extended as well. As a natural consequence of this principle, in case of any doubt as to whether the applicant’s status after his re-election as an MP falls within the scope of the exception introduced by Provisional Article 20, then it should be acknowledged that the applicant's situation falls outside the said exception and is therefore covered by the general rule.
Parliamentary immunity, as a constitutional institution, is a protection mechanism employed to ensure that MPs can freely participate in legislative activities without encountering any obstacle. Thus, parliamentary immunity has an important role in the functioning of representative democracy. The rights-based approach that should prevail over the constitutional jurisdiction is also applicable to the interpretation of the constitutional rules regarding parliamentary immunity. After the applicant’s re-election as an MP, the ongoing proceedings against him were not stayed and continued while he was still detained on remand, as well as the regional court of appeal’s decision against him was upheld. All these were made possible through the broad interpretation of the exceptional rule introduced by Provisional Article 20 of the Constitution in a way contrary to its wording and legislative intent, as well as in a way contrary to the applicant’s right to be elected and engage in political activities safeguarded by Article 67 of the Constitution.
As a result, the exceptional rule introduced by Provisional Article 20 of the Constitution cannot be applied with respect to the applicant who was re-elected as an MP. The denial of the applicant’s re-entitlement to parliamentary immunity, despite his being re-elected as an MP, pursuant to the imperative provision of Article 83 § 4, which is a general rule, as considered to fall into the scope of Provisional Article 20 of the Constitution runs contrary to the wording of the relevant article as well as the will of the constitution-maker.
Consequently, the Court has found a violation of the applicant’s right to be elected and engage in political activities safeguarded by Article 67 of the Constitution on the ground that the applicant, despite his having been re-elected as an MP, was detained pending the proceedings against him as well as his sentence was proceeded to be executed, which was in breach of Article 83 of the Constitution guaranteeing the parliamentary immunity of the applicant.
B. Alleged Violation of the Right to Personal Liberty and Security
The Court, having examined the alleged violation of the applicant’s right to be elected and engage in political activities, has considered that the applicant was re-entitled to parliamentary immunity in accordance with Article 83 of the Constitution for his having been re-elected as an MP –also in terms of the case concerning his detention after conviction– and hence concluded that the considerations to the contrary would contradict the wording of the Constitution.
It is clear that the aforementioned considerations and assessments are applicable also in terms of the right to personal liberty and security. Accordingly, it should be accepted that the applicant was re-entitled to parliamentary immunity as of the date of his re-election as an MP in the general elections held on 24 June 2018 and that therefore; his continued detention after the relevant date was incompatible with Article 83 of the Constitution.
Despite the existence of a constitutional obstacle in terms of the continuation of the applicant’s detention on remand, namely the parliamentary immunity he was re-entitled to for having been re-elected as an MP at the general elections held on 24 June 2018, the applicant's request for release –relying on his parliamentary immunity– was not examined on the merits from 29 June 2018 until 20 September 2018, and the applicant's detention after conviction continued throughout this period. Thus, deprivation of the applicant's liberty between the aforementioned dates has been incompatible with Article 83 of the Constitution, where the guarantees related to parliamentary immunity are laid down.
Consequently, the Court has found a violation of the applicant’s right to personal liberty and security.
This press release prepared by the General Secretariat intends to inform the public and has no binding effect.