It is amazing to see how Turkey’s main opposition party, the Republican People’s Party (CHP), is suddenly experiencing a memory recall, which has exposed an ongoing major structural legal problem in Turkey, i.e., the violation of articles of the European Convention on Human Rights (ECHR). In the past the CHP had been notorious for turning a blind eye to numerous violations of the convention because it considered itself the vanguard of the state against individual liberties and fundamental rights. Now that it feels an injustice was done to the party, it is seeking a remedy from the Strasbourg-based European Court of Human Rights (ECtHR).
The CHP is raising the articles of the convention in its defense of two jailed deputies who got elected to Parliament but were barred by the courts from release. CHP leader Kemal Kılıçdaroğlu argues that Article 3 of Protocol No. 1 to the convention, which guarantees the individual’s right to stand for election and, once elected, to sit as a member of Parliament, was violated. Since the convention is also part of the Turkish Constitution, any domestic law that infringes on that right should be deemed inapplicable. CHP deputies are asking the Ministry of Justice to exert pressure on the courts and judges. The party escalated the crisis and even called for a boycott of parliamentary proceedings to force judges to take a decision that favors the CHP position in the case at hand.
Let’s look at the criminal charges: İstanbul criminal courts ruled against the release of two jailed deputies, Mustafa Balbay and Mehmet Haberal, both of whom are currently standing trial as part of an investigation of Ergenekon, a terrorist network accused of working to overthrow the government and to suspend Parliament by armed intervention. The prosecution has demanded two consecutive life sentences without the possibility of parole for Haberal. Balbay, a journalist, stands accused of “inciting people to armed rebellion against the government” as a member of the Ergenekon armed terrorist organization. It is ironic that both of these people are attempting to be part of Parliament, the very body Ergenekon attempted to destroy or render functionless.
First, we should ask ourselves whether members of Parliament have immunity with regard to charges leveled against these two suspects. In ECtHR case law, the court has already acknowledged that the long-standing practice for member states to generally confer varying degrees of immunity on parliamentarians pursues the legitimate aims of protecting free speech in Parliament and maintaining the separation of powers between the legislature and the judiciary. Both Haberal and Balbay were not accused of what they had said in the past but were indicted on criminal charges based on concrete evidence submitted by prosecutors to the court and accepted by the panel of judges. Therefore, immunity does not apply in the current case.
The judiciary is also independent with regard to legislative functions and decides on the merits of the case as explained in the procedures laid down in domestic law. Since the case is very highly publicized in the media, my understanding is that the appeals of both CHP deputies were reviewed carefully and meticulously within the context of national laws. Although Article 83 of the Turkish Constitution covers both non-liability and immunity of deputies, much wider protection than in most European countries, it clearly explains where this provision does not apply. For those members who were caught in the act of committing a crime punishable by a heavy penalty, provided that proceedings were initiated before the election and cases are subject to Article 14 of the Constitution, neither immunity nor liability protections apply.
The legal troubles of both CHP deputies represent a perfect example of why this domestic law exists. They were arrested in 2009 before they became elected deputies, and the trial continues. Jurists predict the verdict will be announced soon as most proceedings have been competed in the case.
In past ECtHR cases, such as that of Selim Sadak and Others v. Turkey (1994), Ilıcak v. Turkey (2007) and Kavakçı v. Turkey (2007), in which the court had found violations of Article 3 of Protocol No. 1, the verdicts were based on the account of bans imposed on politicians by the Constitutional Court, resulting in the forfeiture of the applicants’ parliamentary seats. In the Ergenekon case, however, the courts clearly seemed to have applied the constitutional requirements by barring their release. Forfeiture of their seats would be up to Parliament to tackle.
The ECtHR accepts that rights mentioned in Article 3 of Protocol No. 1 are not absolute and that the convention does not define the scope and extent of these rights in clear terms nor sets the limits. Therefore, states signatory to the convention have great leeway in imposing limits. In the court’s legal terminology, “a wide margin of appreciation” was awarded to member states in this area, though it is ultimately up to the court to decide on the matter in the event of a complaint of a breach. The convention, part of the Turkish Constitution as well according to revised Article 90, is clearly limited by another constitutional article, Article 14 in this case. Hence it satisfies the “margin of appreciation” criteria, often used in the ECtHR’s reasoning in rendering decisions.
If and when this case is brought to the attention of the Strasbourg Court, the ECtHR would also have to look at the conditions under which these two deputies were deprived of their right to take their seats in Parliament. Then the question would become whether limitations are imposed in pursuit of a legitimate aim and if the means employed are disproportionate. İstanbul criminal courts have legitimate concerns about the release of these two suspects. First, they are obviously a flight risk, and the argument that they have well-established roots in the community does not hold water. Turhan Çömez, a former Justice and Development Party (AK Party) deputy who has been sought by police as an Ergenekon suspect for more than two years now, fled the country to escape the arrest warrant. The intimidation of witnesses and the elimination of further evidence still sought by prosecutors are also concerns raised in the present case.
The prosecution of Ergenekon terror suspects also satisfies the legitimate aims listed in Article 11 of the convention, namely the protection of national security and public safety, the prevention of disorder or crime and the protection of the rights and freedoms of others. Considering that during the execution of search warrants police seized huge caches of ammunition and guns in addition to comprehensive plans to kill and assassinate non-Muslim minority leaders in the houses or offices of some of these Ergenekon suspects, Turkish courts have all the legitimate reasons to remand these criminals pending the outcome of the trial.
Whether the court decisions to bar the two CHP deputies from release are proportionate measures in light of ECtHR decisions, we can look at the case of Refah Partisi (Welfare Party) and Others v. Turkey (1998) where the ECtHR found that the national court’s interference met a “pressing social need.” “It should also be noted that after [Refah’s] dissolution only five of its MPs (including the applicants) temporarily forfeited their parliamentary office and their role as leaders of a political party. The 152 remaining MPs continued to sit in Parliament and pursued their political careers normally,” the court said. In our case, the CHP has 133 deputies that can represent the party in Parliament, while the two jailed ones can only participate if they are acquitted of charges leveled against them.
From whatever angle one looks at the various ECtHR case law, it looks very difficult, though certainly not impossible, to justify the CHP’s brouhaha over the status of the two jailed deputies. Going even further by boycotting Parliament to force judges to reverse their decisions is an utterly scandalous position to take by the CHP. Let’s just hope they come to their senses soon.