CEDH · PRESS;GCJUDGMENTS;ENG — 3 décembre 2009

.s800EAC49 { font-size:12pt } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s29100277 { font-family:Arial; font-weight:bold } .sA678F94A { margin-top:0pt; margin-bottom:0pt; text-align:right; font-size:11pt } .s7ED160F0 { text-decoration:none } .s8304C6AF { font-family:Arial; font-size:7.33pt; font-weight:bold; vertical-align:super; color:#0069d6 } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sEABE4E75 { font-family:Arial; font-size:11pt; font-style:italic; text-decoration:underline; color:#0069d6 } .s4BAE41EE { font-family:Arial; font-size:11pt } .s1F6AC3E7 { font-family:Arial; font-size:11pt; font-style:italic } .sBB9EE52A { font-family:Arial } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sA36B60A1 { font-family:Arial; font-style:italic } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .s99A63BFE { margin-top:0pt; margin-bottom:0pt; text-align:left; font-size:11pt } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s92A5AB2 { font-family:Arial; font-size:11pt; text-decoration:underline; color:#0069d6 } .sBA813D16 { font-family:Arial; font-size:11pt; text-decoration:underline; color:#0000ff } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }   917 03.12.2009   Press release issued by the Registrar   GRAND CHAMBER JUDGMENT [1] Kart v. Turkey ( application no. 8917/05 )   SUSPENSION OF CRIMINAL PROCEEDINGS BECAUSE OF PARLIAMENTARY IMMUNITY DID NOT VIOLATE APPLICANT’S RIGHT OF ACCESS TO A COURT   No violation of Article 6 § 1 (right to a fair trial) of the European Convention on Human Rights       Principal facts   Atilla Kart is a Turkish national who was born in 1954 and lives in Ankara.   In the parliamentary elections of 3 November 2002, Mr Kart, who was a member of the CHP (the People’s Republican Party), was elected to the Turkish Parliament.   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, and the criminal proceedings against him were suspended under Article 83 of the Turkish Constitution, which stipulates that an MP who is alleged to have committed an offence before or after election shall not be arrested, questioned, detained or tried unless the National Assembly decides to lift his immunity.   Two requests for the applicant’s immunity to be lifted were transmitted via the Prime Minister’s Office to the competent parliamentary authorities, who nevertheless decided to suspend the criminal proceedings for the duration of the applicant’s term of parliamentary office.   Mr Kart challenged that decision before the plenary Assembly of the Turkish Parliament, relying on his right to be judged in a fair trial. The files concerning the applicant’s requests to have his immunity lifted remained on the plenary Assembly’s agenda for over two years, until the next parliamentary elections, without ever being examined.   Mr Kart was re-elected in the 22 July 2007 general elections. In January 2008 the Speaker of the National Assembly informed him that the files concerning the lifting of his immunity were still pending.   Complaints, Procedure and composition of the Court   Relying on Article 6 § 1 of the Convention, Mr Kart complained that he had been deprived of his right to a fair trial, with the resulting restrictions on the rights of the defence, in that he had been deprived of the opportunity to clear his name.   The application was lodged with the European Court of Human Rights on 8 February 2005. It was declared partly admissible on 15 January 2008, after a public hearing. On 8 July 2008 the Court delivered a judgment finding by four votes to three that there had been a violation of Article 6 § 1. On 1 December 2008 a panel of the Grand Chamber acceded to the Turkish Government’s request to have the case referred to the Grand Chamber in accordance with Article 43 of the Convention. On 3 December 2009 the Court pronounced the present judgment in a public hearing.   Judgment was given by the Grand Chamber of 17 judges, composed as follows:   Jean-Paul Costa (France), President , Nicolas Bratza (the United Kingdom), Peer Lorenzen (Denmark), Josep Casadevall (Andorra), Giovanni Bonello (Malta), Corneliu Bîrsan (Romania), Boštjan M. Zupančič (Slovenia) Lech Garlicki (Poland), Alvina Gyulumyan (Armenia), Khanlar Hajiyev (Azerbaijan), Egbert Myjer (the Netherlands), Mark Villiger (Liechtenstein), Giorgio Malinverni (Switzerland), András Sajó (Hungary), Nona Tsotsoria (Georgia), Ann Power (Ireland), Işıl Karakaş (Turkey), judges , and also Vincent Berger , Jurisconsult .   Decision of the Court   Preliminary remarks   It was not for the Court to rule in an abstract manner on the scope of the protection States accorded their MPs, but to ascertain in this particular case how Mr Kart’s parliamentary immunity had affected his right to a court.   This was the first time the Court had examined a case where it was the beneficiary of parliamentary immunity who complained that his immunity was preventing him from being tried. Article 6 § 1   Parliamentary immunity pursued the legitimate aim of guaranteeing the smooth functioning of Parliament and protecting its integrity and independence. The Court noted that although the immunity enjoyed by Turkish MPs appeared to be broader than in other States, the scope of the protection afforded had limits and could not be deemed excessive per se .   The procedure for examining requests to lift parliamentary immunity in Turkey was regulated by the Constitution and the Rules of Procedure of the National Assembly. Mr Kart complained that the decision-making procedure in question lacked clarity; the Court pointed out that decisions concerning the implementation of parliamentary liability were political decisions by nature, so they could not be expected to satisfy the same criteria of clarity as court decisions.   As to the decisions taken in Mr Kart’s case, the Court noted that the applicant had had the possibility of filing an objection to the decisions to suspend the criminal proceedings against him. Furthermore, the refusal to lift his parliamentary immunity could not be considered discriminatory or arbitrary as similar requests, both from members of the parliamentary majority and from opposition members, had also been refused.   Criminal proceedings were still pending against Mr Kart and there was 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 determination of the criminal proceedings against him. However, in standing for election in two successive parliamentary elections the applicant, who was a lawyer, had been aware that he was aspiring to a status that could well delay those proceedings. The Court stressed that the effect of the parliamentary decisions concerning Mr Kart’s immunity had merely been to suspend the course of justice, without influencing it or taking part in it.   The damage Mr Kart complained that the criminal proceedings against him had done to his reputation was inherent in any official accusation, but there was no doubt in the Court’s mind that the applicant’s honour had been protected by respect for the presumption of innocence.   The failure to lift Mr Kart’s immunity had merely constituted a temporary procedural obstacle to the determination of the criminal proceedings, but had not deprived him of the possibility of having his case tried on the merits. It had not been disproportionate to the legitimate aim pursued by the authorities, which was to protect the parliamentary institution.   The Court held by thirteen votes to four that there had been no violation of Article 6 § 1.   Judge Malinverni expressed a concurring opinion, Judge Bonello, joined by Judges Zupančič and Gyulumyan, expressed a dissenting opinion, and Judge Power expressed a dissenting opinion. These opinions are annexed to the judgment.     ***   The judgment is available in French and English. This press release is a document produced by the Registry. It does not bind the Court. The judgments are available on its website ( http://www.echr.coe.int ).   Press contacts Céline Menu-Lange (telephone : 00 33 (0)3 90 21 58 77) or Stefano Piedimonte (telephone : 00 33 (0)3 90 21 42 04) Tracey Turner-Tretz (telephone : 00 33 (0)3 88 41 35 30) Kristina Pencheva-Malinowski (telephone : 00 33 (0)3 88 41 35 70) Frédéric Dolt (telephone : 00 33 (0)3 90 21 53 39) Nina Salomon (telephone: 00 33 (0)3 90 21 49 79)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.   [1] Grand Chamber judgments are final (Article 44 of the Convention).