Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
Closed Expands Expression
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The Turkish Constitutional Court held that a member of parliament’s right to be elected and to engage in political activity had been violated by the continuation of criminal proceedings against him. The MP had been convicted of attempting to overthrow the Government of the Republic of Turkey or to prevent it from performing its duties and had been elected as an MP while his appeal against the conviction was pending. As a result of his election, the MP sought a stay of prosecution on the grounds that he now enjoyed immunity as an elected official. The Court held that the constitutional provision limiting the protection of legislative immunity when the integrity of the country was threatened was not sufficiently clear and so the application of that limitation constituted an infringement of the MP’s rights.
Update 12/22/2023: The General Assembly of the Constitutional Court reviewed a second individual application by Atalay due to non-implementation of the judgement. On December 21, 2023, the Constitutional Court held that Atalay’s right to be elected and to engage in political activity, his right to personal liberty and security, and his right to individual application were violated due to the non-implementation of the first judgement.
In 2013, there were widespread protests in Turkey, across many cities, involving various civil society organizations, trade unions, actors, musicians, and directors which turned into the most widely participated social movements in Turkish history. They began with protests against the Taksim Pedestrianization Project, which included the redevelopment of Gezi Park in Taksim, Istanbul, and the construction of an artillery barracks in the park.
Four years after the protests, on October, 18, 2017, human rights defender and businessperson Mehmet Osman Kavala was detained, and on November 1, he was arrested on charges of attempting to overthrow the constitutional order and overthrowing the government, allegedly being the organizer and financier of the Gezi protests. With Kavala’s arrest, the trial process known as the Gezi Park Trial began.
Throughout the trial, a total of 16 individuals from various professional groups, including human rights defenders, representatives of civil society organizations, architects, actors, filmmakers, lawyers, journalists, and urban and regional planners, were charged with attempting to overthrow the government of the Republic of Turkey by force and violence under Article 312 of the Turkish Penal Code. Şerafettin Can Atalay, a lawyer, was one of the persons on trial in the Gezi Park Trial.
On September, 10, 2019, the European Court of Human Rights (ECtHR) ruled that Kavala’s rights were violated in Kavala v. Turkey. It concluded that there was insufficient evidence for his detention, and his detention pursued the ulterior purpose of silencing Kavala and other human rights defenders. The ECtHR ordered his immediate release.
On February 18, 2020, eight persons, including Atalay, were acquitted. However, on January 22, 2021, the acquittal verdict was declared unlawful by an appellate court and the case was sent back to the first instance court for a retrial. The Gezi Park Case was merged with the case known as the Çarşı Case, in which a football fan group was on trial due to the protests in 2013. Later, these cases were separated again.
The Gezi Park Case was heard by the Istanbul 13th High Criminal Court. Kavala, who was in pre-trial detention, was sentenced to aggravated life imprisonment, the most severe penalty provided for in the legal system. On April 25, 2022, Atalay was convicted of the offence of attempting to overthrow the Government of the Republic of Turkey or to prevent it from performing its duties under Article 312 of the Turkish Penal Code. His offence was deemed to be aiding and abetting and he was sentenced to 18 years imprisonment and arrested upon the verdict.
On December 28, 2022, Atalay’s appeal and request for release was rejected by the Regional Court of Appeal. He then appealed against this decision to the 3rd Criminal Chamber of the Court of Cassation.
On May 14, 2023, while his appeal was pending, Atalay was elected as Hatay MP for the 28th term of the Türkiye İşçi Partisi (Workers’ Party of Turkey). Atalay argued that he now had legislative immunity under Article 83 of the Constitution due to his election as an MP and requested a stay of the criminal proceedings and his release.
The 3rd Criminal Chamber of the Court of Cassation rejected Atalay’s request for immunity. The Court stated that the exceptions to legislative immunity were listed in Article 83 of the Constitution and one of these exceptions is the existence of a felony requiring severe punishment within the scope of Article 14 of the Constitution. Article 14 regulates the abuse of fundamental rights and freedoms and stipulates that actions that constitute abuse of fundamental rights and freedoms are activities aimed at destroying the integrity of the state and abolishing the secular republic and activities aimed at the destruction of fundamental rights and freedoms or restricting them more extensively than foreseen by the Constitution.
Article 83 states: “Members of the Grand National Assembly of Turkey shall not be liable for their votes and statements during parliamentary proceedings, for the views they express before the Assembly, or, unless the Assembly decides otherwise, on the proposal of the Bureau for that sitting, for repeating or revealing these outside the Assembly.
A deputy who is alleged to have committed an offence before or after election shall not be detained, interrogated, arrested or tried unless the Assembly decides otherwise. This provision shall not apply in cases where a member is caught in flagrante delicto requiring heavy penalty and in cases subject to Article 14 of the Constitution as long as an investigation has been initiated before the election. However, in such situations the competent authority has to notify the Grand National Assembly of Turkey of the case immediately and directly.
The execution of a criminal sentence imposed on a member of the Grand National Assembly of Turkey either before or after his election shall be suspended until he ceases to be a member; the statute of limitations does not apply during the term of membership.
Investigation and prosecution of a re-elected deputy shall be subject to the Assembly’s lifting the immunity anew.
Political party groups in the Grand National Assembly of Turkey shall not hold debates or take decisions regarding parliamentary immunity.” (emphasis added)
Article 14 states: “None of the rights and freedoms embodied in the Constitution shall be exercised in the form of activities aiming to violate the indivisible integrity of the State with its territory and nation, and to endanger the existence of the democratic and secular order of the Republic based on human rights.
No provision of this Constitution shall be interpreted in a manner that enables the State or individuals to destroy the fundamental rights and freedoms recognized by the Constitution or to stage an activity with the aim of restricting them more extensively than stated in the Constitution.
The sanctions to be applied against those who perpetrate activities contrary to these provisions shall be determined by law.”
The 3rd Criminal Chamber of the Court of Cassation acknowledged that the Constitutional Court had previously declared that the exception to legislative immunity under Article 14 of the Constitution did not sufficiently ensure certainty and predictability. But it held that the Constitutional Court, in its judgments on an individual application, cannot issue a decision that may eliminate or nullify the implementation of a constitutional rule. Accordingly, the Court held that legislative immunity and its exceptions cannot be interpreted in the way the Constitutional Court had done so. Referring to the elements of the crime in Article 312 of the Turkish Criminal Code and the preamble of the article, the Court concluded that the crime was an attempt to remove the government, which is one of the fundamental organs of the constitutional order, and to prevent it from performing its duties, and that it should be evaluated within the scope of Article 14 of the Constitution. Accordingly, the Court held that Atalay, who had been elected as an MP, could not exercise his legislative immunity and his request for a stay of proceedings and release was rejected.
Atalay appealed this decision, which was rejected by the 4th Chamber of the Court of Cassation. This decision was final, and he submitted an individual application before Constitutional Court on July 20, 2023.
While the individual application was pending before the Constitutional Court, the 3rd Criminal Chamber of the Court of Cassation upheld Atalay’s conviction on September 28, 2023.
The Constitutional Court delivered a majority decision. There were two dissenting decisions. The central issue for the Court’s determination was whether Atalay’s right to be elected and to engage in political activity had been infringed by the failure to confer legislative immunity on him.
Atalay argued that the rejection of his request for immunity was a violation of his right to be elected and to engage in political activities. He maintained that his election as an MP meant that he should benefit from legislative immunity and that a stay of proceedings should therefore have been ordered. He described the Ministry of Justice’s position as contrary to the principles of rule of law and political in nature.
The Ministry of Justice submitted that the 3rd Chamber of the Court of Cassation had ruled in accordance with the procedure to be applied regarding the exception of legislative immunity under Article 14 set out by the Constitutional Court case of Ömer Faruk Gergerlioğlu.
The Court noted that Atalay, when he had been elected as an MP, was not able to not take oath at the parliament and could not fulfil his duty as an MP because of the continuation of the criminal proceedings against him and his detention. Accordingly, it held that his right to be elected and to engage in political activity was interfered with by his detention and the decision to continue the proceedings.
In determining whether that interference was lawful, the Court stated that interferences must comply with the conditions set out in Article 13 of the Constitution on the regime of restrictions of rights and freedoms. According to Article 13, “[f[undamental rights and freedoms may be restricted only by law and in conformity with the reasons mentioned in the relevant articles of the Constitution without infringing upon their essence. These restrictions shall not be contrary to the letter and spirit of the Constitution and the requirements of the democratic order of the society and the secular republic and the principle of proportionality”. [para. 27]
The Court analyzed legislative immunity and its exceptions set out in the Ömer Faruk Gergerlioğlu judgement. Article 83 establishes legislative immunity and lists – as one of the exceptions to immunity – the activities set out in Article 14. The interpretation difficulty is that Article 14 does not set out what type of activities it covers, and so there is no certainty and predictability about what conduct is not covered by Article 83’s immunity. The Court indicated that there is a distinction when a right is infringed by a legal provision and when the right is infringed through the application of another constitutional right. The Court rejected the 3rd Criminal Chamber of the Court of Cassation’s finding that the Constitutional Court cannot nullify a constitutional provision, and stressed that it was assessing the legitimacy of Article 83 as a provision that limited a separate constitutional right. This was necessary because Atalay’s right to be elected and engage in political activities can only be limited by a provision “prescribed by law”, and to meet that criteria, the provision must be clear and foreseeable. Here, the Constitutional Court had to determine whether the provision that limited Atalay’s right – Article 83 of the Constitution – was sufficiently clear and foreseeable.
The Court, referring to its previous decision containing detailed analyses, stated that the phrase “in cases subject to Article 14 of the Constitution” in the second paragraph of Article 83 of the Constitution was not satisfactory in determining the crimes excluded from legislative immunity. It stated that this clarity can only be provided by a legislative body and not by judicial interpretation. Within this scope, the Court found that it was unclear which crimes would be assessed under Article 14 and that the article did not include a definition and list of offences. [para. 39] It stressed that these conditions could not be interpreted in such a way as to ensure certainty and foreseeability only through the judgements of the judiciary and noted that the decision of the 3rd Criminal Chamber of the Court of Cassation subject to the application did not result in Article 14 being clear and foreseeable. [para. 45]
The Court held that Atalay’s right to stand for election and to engage in political activity guaranteed under Article 67 of the Constitution had been violated. It found that the interference did not constitute a minimum requirement as there was no law providing safeguards against arbitrary and disproportionate practices of public authorities. [paras. 63-64]
The Court emphasised that, under Article 153 of the Constitution, individual application decisions of the Constitutional Court are binding on the legislative, executive, and judicial authorities, administrative authorities, real and legal persons. [para. 73] It explained that it had previously examined a similar application in Ömer Faruk Gergerlioğlu which had revealed the structural problem arising within the scope of the phrase “cases under Article 14 of the Constitution” in the second paragraph of Article 83 of the Constitution. The Court stated that in this context, “although the authorities exercising public power have a general obligation to eliminate the issues arising from the violation found by the Constitutional Court, the 3rd Criminal Chamber of the Court of Cassation acted contrary to the case-law of the Constitutional Court, did not fulfil its obligation to prevent similar violations. Hence, it constituted violation by interpreting the rights in a narrowing manner”. [para. 88]
Accordingly, the Court held that Atalay’s right to be elected and to engage in political activity had been violated by the absence of a constitutional or a legislative provision with essential guarantees and ensuring certainty and predictability.
The Court also held that Atalay’s detention violated his right to freedom of liberty and security. The Court found it unnecessary to determine whether his right to a fair trial had been violated.
The Court decided to send a copy of the judgement to Istanbul 13th Assize Court for Atalay’s retrial in order to eliminate the consequences of the violation, to ensure his release and to order a stay of proceedings.
It also awarded Atalay 50.000 TL (approximately US$1700 in December 2023) in non-pecuniary damages and the costs of the proceedings.
Judges Muammer Topal, Yıldız Seferinoğlu, Basri Bağcı, İran Fidan delivered a dissenting judgment. These judges would have found that Article 14 of the Constitution contains sufficient legal criteria to provide a basis for the implementation and that it is conducive to ensuring certainty through judicial decisions. They did not agree with the grounds set out in the concurring opinion in the Ömer Faruk Gergerlioğlu judgement and the views expressed in the dissenting opinion in the Leyla Güven (2) judgement.
Judge Muhterem İnce also delivered a dissenting decision, and disagreed with the judgement on the grounds set out in the dissenting opinion in the Leyla Güven judgment. Judge İnce stated that Article 14 of the Constitution contains sufficient legal criteria to provide a basis for the implementation and that it is conducive to ensuring certainty through judicial decisions.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Constitutional Court continued its jurisprudence that the exception to legislative immunity introduced by reference to Article 14 of the Constitution does not include guarantees and is not conducive to ensuring certainty and predictability. Within this scope, it emphasized that the structural problems identified in previous judgments regarding the denial of legislative immunity to MPs in relation to their right to freedom of expression by subjecting them to the criminal proceedings continued to exist. The Constitutional Court reiterated that its judgments rendered through individual applications are binding on all organs exercising public power, including the judicial authorities. Although it is a general obligation for the authorities exercising public power to eliminate the structural problems mentioned in its case-law, it noted that they have not been fulfilled by judicial authorities subjected to the applications.
Although the Constitutional Court decided to send the copy judgment to the Istanbul 13th Assize Court, the judgement was forwarded to the 3rd Criminal Chamber of the Court of Cassation. The 3rd Criminal Chamber of the Court of Cassation did not implement the decision and filed a criminal complaint against the judges of the Constitutional Court who issued the judgement. Atalay submitted a second individual application to the Constitutional Court due to non-implementation of the judgement. The General Assembly of the Constitutional Court reviewed this application on December 21, 2023. The Constitutional Court held that Atalay’s right to be elected and to engage in political activity, his right to personal liberty and security, and his right to individual application were violated due to the non-implementation of the first judgement.
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