Press Release No: Individual Application 56/23
Press Release concerning the Judgment Finding a Violation of the Right to Stand for Elections and Engage in Political Activities as Well as the Right to Personal Liberty and Security
On 25 October 2023, the Plenary of the Constitutional Court found violations of the right to stand for elections 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 Şerafettin Can Atalay (2) (no. 2023/53898).
The applicant, one of the defendants in the criminal case commonly referred to as the Gezi Park trial, was convicted by the incumbent assize court, which also ordered the applicant’s detention. Subsequently, the applicant’s appeal, which included a request for release and was lodged against the contested judgment, was dismissed by the regional court of appeal. While the applicant was detained pending trial, he was elected as a member of parliament (MP). In response, the applicant applied to the Court of Cassation, where the appellate review of his case was still pending, for his release, citing his entitlement to parliamentary immunity by virtue of his election as an MP. This request was dismissed, pending further consideration of the merits of the case. While the individual application was under review, the Court of Cassation upheld the applicant’s conviction.
The Applicant’s Allegations
The applicant maintained that his right to stand for elections and engage in political activities had been violated due to the dismissal of his request for a stay of proceedings and that his right to personal liberty and security had been violated due to the dismissal of his request for release.
The Court’s Assessment
A. Alleged Violation of the Right to Stand for Elections and Engage in Political Activities
The Constitutional Court acknowledges that, in the absence of a law representing the will of the Grand National Assembly of Türkiye, fundamental rights and freedoms cannot be restricted by the case-law of the Constitutional Court or any other court. In fact, Article 13 of the Constitution, which regulates the framework for restricting fundamental rights and freedoms, enshrines a basic principle that fundamental rights and freedoms may be restricted “only by law”.
The constitution-maker has stipulated in Article 14 of the Constitution that “the sanctions to be applied to those who perpetrate activities contrary to these provisions shall be determined by law,” and in Article 67, which regulates the right to vote, stand for elections and engage in political activities, that “the exercise of these rights shall be regulated by law”. Consequently, it can be inferred that the constitution-maker has entrusted the legislature with the responsibility of ensuring the precision of the phrase “cases subject to Article 14 of the Constitution” in Article 83 § 2 of the Constitution, and has not explicitly granted the judiciary the authority to define the offences provided for in Article 14 through interpretation. Since it is evident that the judiciary is not a legislative body, it cannot, through interpretation, determine the scope of parliamentary immunity and, thereby, the right to stand for elections and engage in political activities.
With regard to Article 14 of the Constitution and Article 67 § 3, which regulates the right to vote, stand for elections, and engage in political activities, it has been determined that ensuring certainty and foreseeability regarding which offences are encompassed by the phrase “cases subject to Article 14 of the Constitution” referred to in Article 83 § 2 of the Constitution is not achievable through interpretations by judicial authorities but requires regulation by the legislature.
Furthermore, in a legal system lacking adequate safeguards to ensure parliamentary immunity, the elected representatives of the people, who advocate on behalf of their constituents and promote their interests by drawing attention to their demands, will face significant and discouraging pressure on their fundamental rights and freedoms, particularly freedom of expression and the right to engage in political activities. This will make it almost impossible for them to freely exercise these rights and freedoms. Nonetheless, the role of an MP is of paramount public interest and importance, a fact recognised in democratic political practice. This is precisely why MPs are entitled to constitutional protection. Any unconstitutional interference with the freedom of expression or other rights and freedoms enjoyed by elected MPs in the exercise of their parliamentary duties undermines the authority of the political representation established through the will of the people and prevents the expression of the constituents’ will in the Parliament.
Both Article 83, which safeguards parliamentary immunity, and Article 14 of the Constitution, which safeguards against the violation of fundamental rights and freedoms, may only fully and effectively serve their functions when interpreted from a rights-based perspective and within the framework of the protection of democracy. In the present case, the constitutional provisions have not been interpreted by courts in favour of freedoms, nor does there exist a legal system with substantive and procedural safeguards that would encourage such an interpretation.
In the light of these considerations, it has been concluded that there is no constitutional or legal framework that provides certainty, foreseeability, and fundamental safeguards for the protection of the right to stand for elections and engage in political activities.
Consequently, the Court has found a violation of the right to stand for elections and engage in political activities.
B. Alleged Violation of the Right to Personal Liberty and Security
In the event of a circumstance affecting the lawfulness of detention on remand, even if the detention falls within the category of “execution of sentences restricting liberty and security measures imposed by the courts”, it may result in a violation of the right to personal liberty and security. The connection between detention and conviction is severed when there is a constitutional or legal barrier to detention, or when a court judgment mandates to the cessation of detention. In such cases, continued detention constitutes a restriction of liberty without a legal basis. In the present case, the question of whether the applicant, if elected as an MP, would be entitled to parliamentary immunity under Article 83 of the Constitution is a matter which has a direct bearing on the lawfulness of detention on remand.
The issue of whether an elected MP can be subject to prosecution is of the same nature as the issue of whether a person can be arrested or detained. Accordingly, all the findings and assessments made with respect to the right to stand for elections and engage in political activities are also applicable to the right to personal liberty and security. Therefore, it is evident that, following his election as an MP, the applicant began to enjoy the protection of parliamentary immunity, unless there is a constitutional or legislative provision enacted that includes the basic safeguards enshrining the right to stand for elections and engage in political activities while ensuring certainty and foreseeability. In the light of the foregoing, it has been concluded that the applicant’s continued detention despite his request for release is in breach of Article 83 of the Constitution.
Consequently, the Court has found a violation of the right to personal liberty and security.
This press release prepared by the General Secretariat intends to inform the public and has no binding effect.