Turkey: Venice Commission opinion on constitutional amendment on parliamentary immunity
Turkey – Opinion on the suspension of the second paragraph of Article 83 of the Constitution (parliamentary inviolability), adopted by the Venice Commission at its 108th Plenary Session (Venice, 14-15 October 2016)
77. The Venice Commission welcomes that the Amendment does not touch parliamentary nonliability, which is an essential element of parliamentary immunity.
78. Nevertheless, the inviolability of these Members of Parliament should be restored. The Venice Commission is of the opinion that, in the current situation in Turkey, parliamentary inviolability is an essential guarantee for the functioning of parliament. The Turkish Grand National Assembly, acting as the constituent power, confirmed this by maintaining inviolability for future cases. The current situation in the Turkish Judiciary makes this the worst possible moment to abolish inviolability.
79. Moreover, most of the files concerned by this abrogation relate to freedom of expression of Members of Parliament. Freedom of expression of Members of Parliament is an essential part of democracy. Their freedom of speech has to be a wide one and should be protected also when they speak outside Parliament. The non-violent pursuit of non-violent political goals such as regional autonomy cannot be the subject of criminal prosecution. Expression that annoys (speech directed against the President, public officials, the Nation, the Republic etc.) must be tolerated in general but especially when it is uttered by Members of Parliament. Restrictions of the freedom of expression have to be narrowly construed. Only speech that calls for violence or directly supports the perpetrators of violence can lead to criminal prosecution. The case-law of the European Court of Human Rights shows that Turkey has a problem with safeguarding freedom of expression, not least with respect to cases considered as propaganda for terrorism. This is partly due to the fact that, as explained in the Opinion CDL-AD(2016)002 on Articles 216, 299, 301 and 314 of the Penal Code of Turkey of March 2016, the scope of several provisions of the Penal Code is too wide. This endangers freedom of expression in general but notably also freedom of expression of members of the National Assembly.
80. The constitutional amendment of 12 April 2016 was an ad hoc, “one shot” ad homines measure directed against 139 individual deputies for cases that were already pending before the Assembly. Acting as the constituent power, the Grand National Assembly maintained the regime of immunity as established in Articles 83 and 85 of the Constitution for the future but derogated from this regime for specific cases concerning identifiable individuals while using general language. This is a misuse of the constitutional amendment procedure.
81. The argument that dealing one by one with the cases against these deputies would have taken too long and would have unduly burdened the agenda of the Grand National Assembly is not convincing. Instead of simplifying the procedure of lifting immunity, the complex system was maintained but it was derogated for 139 deputies. The heavy workload of the Grand National Assembly does not justify singling out the cases relating to these deputies from all other cases brought before it before and after the adoption of the Amendment. This violates the principle of equality. In the opinion of the Commission, the system of parliamentary immunity in Turkey should not be weakened, but reinforced, in particular in order to ensure the freedom of speech of Members of Parliament.
82. The Venice Commission remains at the disposal of the Turkish authorities for any further assistance they may require, especially as concerns the on-going current work on reform of the Constitution.
For the Full Opinion, read here.