JOINT DISSENT ING OPINION OF JU D GES BAKA, UGREKHELIDZE AND POPOVIĆ

We regret that we are unable to subscribe to the majorit y ' s opinion that there has been a violation of Article 6 § 1 of the Convention in this case .

Like the majorit y , we recognise the l e gitim acy , relied on by the Government , of the purpose of the parliamentary immunity system , which is aimed mainly at ensuring that Members of P arliament are able to discharge their duties freely and dispassionately . As the judgment points out and as the Court has already had occasion to affirm ( A. v. the United Kingdom , cited above , §§ 75 ‑ 77 ; Cordova ( nos. 1 and 2) , cited above , §§ 55 and 56 respective ly ; De Jorio , cited above , § 49), there is no doubt that parliamentary immunity is an institution which pursues a legitimate aim, namely to guarantee the independence of Members of Parliament and of Parliament itself by preventing any possibility of fumus persecutionis (politically motivated proceedings) and, beyond that, protecting the constitutional order and maintaining the separation of powers between the legislature and the judiciary .

However, we cannot subscribe to the conclusions of the majorit y concerning the disproportion at e nature of the impugned me a sure in relation to the applicant ' s rights under Article 6 of the Convention.

We realise that the “inviolability” conferred on Turkish MPs appears in many respects to be broader than that enjoyed by members of the legislative bodies of certain other Contracting States, the Parliamentary Assembly of the Council of Europe or the European Parliament. I n particul a r, it applies to criminal and civil law matters, and to offences committed prior to the M ember ' s election to Parliament as well as during his or her term of office; and it protects MPs from being questioned, taken into custody or prosecuted. That said, the Court has already had occasion to affirm that the application of a rule of absolute parliamentary immunity cannot be said to exceed the margin of appreciation allowed to States in limiting an individual ' s right of access to a court ( see A. v. the United Kingdom , cited above, § 87).

Here, however, we consider that the impact of parliamentary “inviolability” is attenuated in so far as, although the applicant cannot waive it as of right , he does have the possibility of asking the Assembly of which he is a member to lift it, as do the judicial authorities, in which case the Assembly has the power to lift the immunity .

Moreover, if we consider that the Court is to rule on the limits of parliamentary immunity vis-à-vis the rights enshrined in the Convention, there is no doubt in our minds that the granting of immunity falls within the scope of the State ' s margin of appreciation and that it is not the Court ' s role to substitute its own assessment for that of the State in order to determine whether or not immunity is necessary or appropriate in a particular case.

The Parliament ' s internal decisions, including decisions whether or not to lift immunity , what items to put on its agenda and what questions to debate , are undeniably matters for Parliament alone to decide . The Court cannot be used as a means of verifying the relevance of the choices made by the national parliaments in such matters, provided that th os e choices made are in conformity with the imperatives of the rule of law as embodied in the Convention.

We are not unaware that in Turkey parliamentary “inviolability” is a controversial subject and meets with strong popular opposition, or that the scope of the immunity has been identified as one of the main problem areas in the context of corruption (see the conclusion of the GRECO report in paragraph 40 of the judgment). We would like to point out, however, that it is not for the Court to assess in abstracto the arrangements for implementing the procedure for lifting parliamentary immunity, but rather to determine in concreto whether those arrangements violated Article 6 of the Convention .

In th e instant case the proc e dure for lifting parliamentary immunity is d e fin ed and regulated by Article 83 of the Constitution and Rules 131 to 134 of the Rules of Procedure of the National Assembly . These provisions clear ly show that the proc e dure concerned guarantees the applicant ' s right to appeal as well as the rights of the d e fenc e ( see paragraph 29 of the judgment) . Furthermore, we remark that the purpose of the immunity in question is simply to suspend any proceedings against an MP until the end of his term of office , in the interest of the Assembly of which he is a member . The proceedings are therefore merely deferred , to ensure that MPs are not abusive ly prevented from discharging their duties .

We further note in this connection that the immunit y system at issue comprises special rules concern ing the time-bar on criminal offences . As time ceases to run for the purposes of limitation during the Member ' s parliamentary term , the criminal proceedings against the applicant can be resumed when he ceases to be an MP . The immunity at issue here is therefore a mere procedural obstacle to the criminal proceedings , which cannot be considered to have deprived the applicant of the possibility of having his case determined on the merits . In this respect the immunity enjoyed by the applicant is only partial.

On the basis of the foregoing , we consider that the application of a rule conferring immunity of the type associated with the applicant ' s status as an MP cannot be consid e r e d to overstep the marg in of appr e ciation the States enjoy in limit ing th eir citizens ' right of access to a court .

It is indeed regrettable that the question of the lifting of the applicant ' s parliamentary immunity should have remained pend ing before the plenary Assembly of the 2 2nd Parliament for over two years without ever being addressed ; but that alone is not enough to change our conclusion concerning the proportionalit y of the parliamentary immunity at issue , as the cr e ation of e xceptions to such immunity , the application of which would be contingent , would necessar ily s e ri ou s ly undermine the l e gitim at e aim s p ursued .

We therefore consider that there has been no violation of Article 6 § 1 of the Convention.

[1] . Cases nos. 1994/11 E. 1994/30 K.; 1994/6 E. 1994/25 K.; 1994/18 E. 1994/37 K.; 1994/13 E. 1994/32 K.; 1994/5 E. 1994/24 K.; 1994/20 E. 1994/39 K.

[2] “ heavy penalty ”: more than ten years’ imprisonment, pronounced by a court for a serious offence with aggravating circumstances.

[3] . Report of the Venice Commission on the regime of parliamentary immunity (1996), § 11.

[4] . Venice Commission’s opinion on the draft decision of the Albanian Parliament on the limitation of parliamentary immunity and the conditions for authorisation to initiate investigation in relation with corruption offences and abuse of duty, 17-18 March 2006, §§  14 and 17.