Library of Congress

Law Library of Congress

The Library of Congress > Law Library > News & Events > Global Legal Monitor

Turkey: Constitutional Amendment Adopted to Allow Certain Legislators to Be Stripped of Immunity

(May 25, 2016) On May 20, 2016, the Grand National Assembly (parliament, GNA) of Turkey voted in favor of a draft constitutional amendment, sponsored by the 316-seat ruling Justice and Development Party (AKP, Adalet ve Kalkinma Partisi), that would strip almost 140 Members of Parliament of their privilege of immunity from prosecution. (Turkish Parliament Controversially OKs Trial of Deputies Facing Legal Cases, HÜRRIYET DAILY NEWS (May 20, 2016).) The temporary clause would remove immunity from deputies who are currently facing investigations on criminal charges, if AKP founder President Recep Tayyip Erdogan signs the legislation into law as expected.  (Turkey Passes Bill to Strip Politicians of Immunity, AL JAZEERA (May 20, 2016).)

The proposed amendment adds a provisional article 20 to the Constitution of the Republic of Turkey. Paragraph 1 of the amending article gives certain authorities, such as the prosecutor general and the courts, permission to conduct an inquiry, investigation, or prosecution based on files of MPs that have been transferred to them; with regard to these files, the first sentence of the second paragraph of article 83 of the Constitution will not apply.  Paragraph 2 of provisional article 20 states that the (amending) act will enter into force on the date of publication if it is not submitted to a referendum.  (Türkiye Cumhuriyeti Anayasasinda Degisiklik Yapilmasina dair Kanun Teklifi [Law Proposal on Amending the Constitution of the Republic of Turkey] (Apr. 14, 2016), No. 2/1028, GNA website (click on Kanun Teklifinin Metni [Text of Proposed Law] to view the proposed provisions).)

Relevant Provisions of the Constitution

The first sentence of paragraph 2 of article 83 of the Constitution, on parliamentary immunity, states: “[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.” (Constitution of the Republic of Turkey (Constitution) (adopted Oct. 18, 1982, as last amended Mar. 29, 2011), art. 83 ¶ 2, GNA website; Türkiye Cumhuriyeti Anayasasi [Constitution of the Republic of Turkey (adopted Oct. 18, 1982, as last amended Mar. 29, 2011), GNA website.) However, the article further states, this does not apply in cases where an MP is caught in flagrante delicto that merit harsh punishment or where an abuse of basic rights and freedoms (prohibited under the Constitution’s article 14) is involved, provided that an investigation has been initiated before the election.  In such situations, the competent authority must notify the Assembly of the case “immediately and directly.”  (Constitution, supra.)  Execution of a criminal sentence imposed on an MP either before or after election to office will “be suspended until he ceases to be a member; the statute of limitations does not apply during the term of membership.” (Id. art. 83 ¶ 3.)

Article 175 is on amending the Constitution. It stipulates that an amendment should be proposed in writing by at least one-third of the total number of MPs.  The legislation is to be debated twice in the Plenary of the GNA; a three-fifths majority of the total GNA membership, with the vote taken by secret ballot, is required for adoption of a constitutional amendment.   (Id. art. 175 ¶ 1.)  The President has the option of sending back an amendment law for reconsideration; if it is readopted by a two-thirds majority of all MPs, the President may submit the law to referendum (Id. art. 175 ¶ 3).  If the amendment law is adopted by a three-fifths or less than two-thirds majority and is not sent back to the GNA by the President for reconsideration, it will be published in the Official Gazette and submitted to referendum.  (Id. art. 175 ¶ 4.)

The President may also call a referendum if the amendment law was adopted directly by a two-thirds majority of the total GNA membership or was adopted after having been sent back by the President. An amendment law that is not submitted to referendum will be published in the Official Gazette.  (Id. art. 175 ¶ 5.)

Vote on Current Amendment

In the case of the parliamentary immunity amendment law, it was reported that 376 deputies approved the proposal, 140 were against, 5 abstained, 7 votes were declared invalid, and three were “empty” (531 deputies attended the final round). Thus, as the number of seats in the GNA is 550, 330 members constitute a three-fifths majority, and the 367-vote threshold needed in order for a referendum not to be held was surpassed.  (Turkish Parliament Directly Approves Lifting MP Immunities, No Referendum Needed, DAILY SABAH (May 20, 2016).)

Background

As established by article 83 of the Constitution, Turkish MPs have heretofore been immune from prosecution while in office. However, the police have the power to file “dossiers” against politicians deemed to have committed offenses, “which can lead to a legal process once they cease to be sitting members of parliament.”  (After Brawl, Turkish Parliament Committee Votes to Lift Lawmakers’ Immunity, REUTERS (May 3, 2016).)

At present, according to Al Jazeera, “51 opposition Republican People’s Party (CHP [Cumhuriyet Halk Partisi]) members of parliament, 50 HDP [People’s Democratic Party, Halklarin Demokratik Partisi] MPs, 27 AKP MPs, nine Nationalist Movement Party (MHP [Milliyetci Hareket Partisi]) MPs and one independent are facing investigations.”  (Turkey Passes Bill to Strip Politicians of Immunity, supra.)  In addition, three party leaders, one each from the CHP, the HDP, and the MHP, have dossiers against them pending to be sent to prosecutors, which put them at risk of “being banned from politics in the event they are sentenced to more than one year in prison.”  (Turkish Parliament Controversially OKs Trial of Deputies Facing Legal Cases, supra.)

Erdogan had called for HDP members to be prosecuted; he has charged that they are “an extension of the outlawed militant group, the Kurdistan Workers Party (PKK),” an accusation rejected by the HDP. (After Brawl, Turkish Parliament Committee Votes to Lift Lawmakers’ Immunity, supra.)

In the view of the HDP, the government is using the law as a pretext to “empty parliament of pro-Kurdish voices.” (Turkey Passes Bill to Strip Politicians of Immunity, supra.)  HDP co-leader Selahattin Demirtas has asserted that no HDP MP would go voluntarily to give testimony to prosecutors, and the HDP has also stated that it would bring the issue before the Constitutional Court.  (Turkish Parliament Controversially OKs Trial of Deputies Facing Legal Cases, supra.)

Possible Aftermath

With the passage of the amendment, upon the President’s approval of the legislation and its publication in the official gazette, a legal process will commence for 139 legislators “with 682 different dossiers,” and the total number of dossiers will rise to 787 when another 105 cases involving the lifting of legislative immunity are referred to the GNA.  (Turkish Parliament Controversially OKs Trial of Deputies Facing Legal Cases, supra; see also Rules of Procedure of the Grand National Assembly of Turkey, arts. 131-134 (on legislative immunity), GNA website (last visited May 25, 2016); Türkiye Büyük Millet Meclisi Ictüzügü [Rules of Procedure of the Grand National Assembly of Turkey] (Mar. 5, 1973, as amended), GNA website.)  Turkey’s Ministry of Justice was quoted as stating that over 200 of the dossiers involve terrorism-related offenses.  (Turkish Parliament Controversially OKs Trial of Deputies Facing Legal Cases, supra.)

Reportedly, according to legal and parliamentary experts, in a process expected to take 15 days, the dossiers pending in the GNA would first be sent to prosecutors through the Office of the Prime Minister and the Ministry of Justice. Then about 200 prosecutors will be assigned to examine the dossiers and classify them based on the nature of the offense.  (Id.)  The lawmakers involved will be asked to give testimony, and prosecutors will determine whether to open a case against a lawmaker after having evaluated the defense made by him or her and the related evidence.  The process will be abandoned if the prosecutor finds that it is not necessary to open a case, but if the prosecutor finds that a case is warranted he or she can seek an arrest warrant from the court based on the charges lodged against the legislator.  (Id.; see also Criminal Procedure Code of the Republic of Turkey (2009), LEGISLATIONLINE,  arts. 157-172 (2009); Ceza Muhakemesi Kanunu (Dec. 4, 2004, as last amended effective July 7, 2013), MEVZUAT.)