Kart v. Turkey (8917/05)

Date	20080708
Article	6(1)
Decision	violation

CHAMBER JUDGMENT KART v. TURKEY

The European Court of Human Rights has today notified in writing its Chamber judgment1 in the case of Kart v. Turkey (application no. 8917/05).

The Court held by four votes to three that there had been a violation of Article 6 § 1 (right of access to a court) of the European Convention on Human Rights.

The applicant had not submitted a claim under Article 41 (just satisfaction). (The judgment is available only in French.)

1. Principal facts

The case concerned Mr Kart’s complaint that he could not defend his name in criminal proceedings against him because, as a member of parliament (MP), he was subject to parliamentary immunity.

In the parliamentary elections of 3 November 2002 he was elected to the Turkish National Assembly as a member of the People’s Republican Party (CHP).

Prior to his election he practised as a lawyer and, in the course of his professional activities, two sets of criminal proceedings were brought against him, one for insulting a lawyer and the other for insulting a public official.

As an MP he enjoyed parliamentary immunity. Under Article 83 of 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.

The applicant requested that his immunity be lifted, but the joint committee of the Assembly decided to stay the proceedings against him until the end of his term of office. The applicant objected, relying on his right to a fair hearing. 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.

Mr Kart was re-elected in the parliamentary elections of 22 July 2007. In January 2008 the Speaker of the National Assembly informed him that the files concerning the lifting of his immunity were pending before the joint committee.

2. Procedure and composition of the Court

The application was lodged with the European Court of Human Rights on 8 February 2005. A hearing was held in public in the Human Rights Building in Strasbourg on 15 January 2008 and the application was declared admissible.

Judgment was given by a Chamber of seven judges, composed as follows:

Françoise Tulkens (Belgian), President,
András Baka (Hungarian),
Rıza Türmen (Turkish),
Mindia Ugrekhelidze (Georgian),
Vladimiro Zagrebelsky (Italian),
Danutė Jočienė (Lithuanian),
Dragoljub Popović (Serbian), judges,

and also Sally Dollé, Section Registrar.

3. Summary of the judgment2

Complaints

The applicant alleged in particular that the failure to lift his parliamentary immunity had prevented criminal proceedings from being brought against him, thereby denying him the right of access to a court, guaranteed under Article 6 § 1, and the opportunity to clear his name.

Article 6 § 1

This was the first time an applicant enjoying parliamentary immunity had complained to the Court of the effects of that immunity on his right of access to a court: the proceedings against him had been stayed until the end of his parliamentary term or until the assembly of which he was a member decided to allow them to proceed.

The Court reiterated that parliamentary immunity was an institution which 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 the parliament and disrupt its work.

The applicant complained specifically about the consequences of the parliamentary immunity system, namely the immunity from prosecution he enjoyed in matters unrelated to his parliamentary office. The immunity was a matter of public policy, so 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. Furthermore, it was not the applicant’s right to waive his immunity, but only request that it be lifted.

However, the Court noted that no objective criteria had been set to define the conditions under which immunity could be lifted. In the applicant’s case the joint committee had referred only to the nature of the offences alleged, without taking into account or examining the possible incidence of criminal proceedings on the applicant’s performance of his parliamentary duties. It was the Court’s view that the absence of objective criteria and of reasons for the decision to stay the proceedings was capable of depriving all the interested parties – in this case both the applicant and the victims of his alleged offences – of the means to defend their rights.

Furthermore, there was no requirement of promptness and no time-limit in the procedure for lifting parliamentary immunity. In the applicant’s case there had been inertia on the part of the National Assembly and delays in the procedure. The applicant had directly suffered the consequences of the delay caused by the suspension of all criminal proceedings, a delay that had been prejudicial not only to the legal process but also to the interested party, who had remained under suspicion all the while.

The Court pointed out that in Turkey the immunity enjoyed by MPs was a highly controversial subject, and came under strong public criticism, adding that immunity had been identified as one of the major problems in dealing with corruption. 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.

The Court found that the applicant had been disproportionately deprived of his right to access to a court, in violation of Article 6 § 1.

Judges Baka, Ugrekhelidze and Popović expressed a joint dissenting opinion, which was annexed to the judgment.