18 HRCD [2007–2008] KART v.

Right of access to a – violation Article 6, Section 1

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

In a judgment delivered on 8 July 2008 in the case of Kart v. Turkey, the European Court of Human Rights held by four votes to three that there had been a violation of Article 6, Section 1 (right of access to a court) of the European Convention on Human Rights. As the applicant had not submitted a claim under Article 41 (just satisfaction) of the Convention, the Court made no award on that account. This judgment is not final. The case was referred to the Grand Chamber, in ac- cordance with Article 43 of the Convention, where a final judgment was delivered on 3 December 2009.

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 (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 profes- sional 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

1081 18 HRCD [2007–2008] 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 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.

3. Summary of the Judgment Complaints Relying on Article 6, Section 1 (right of access to a court) of the Convention, the applicant complained in particular that the failure to lift his parliamentary immu- nity had prevented criminal proceedings from being brought against him, thereby denying him the right of access to a court and the opportunity to clear his name. Decision of the Court Article 6, Section 1 of the Convention 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 im- munity 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 re- lated 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

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