PARTLY CONCURRING AND PARTLY DISSENTING OPINION OF JUDGE WOJTYCZEK

1. I respectfully disagree with my colleagues’ view that Article 5 § 4 of the Convention has not been violated in the instant case. I also have reservations concerning the wording of point 14 of the operative part, as well as certain parts of the reasoning.

2. In paragraph 167 of the reasoning the following view has been expressed:

“The Court reiterates that the content and scope of the case referred to the Grand Chamber are delimited by the Chamber’s decision on admissibility (see Murtazaliyeva v. Russia [GC], no. 36658/05, § 88, 18 December 2018). The Grand Chamber therefore cannot examine complaints which have been declared inadmissible.”

As a result, the Grand Chamber therefore cannot examine the complaints which have been declared inadmissible but can declare inadmissible the complaints which have been declared admissible and examined by the Chamber.

I acknowledge that the viewpoint expressed above reflects the established practice in the Grand Chamber (see, for instance, Al-Dulimi and Montana Management Inc. v. Switzerland [GC], no. 5809/08, § 78, 21 June 2016; Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 88, ECHR 2010; and Göç v. Turkey [GC], no. 36590/97, §§ 36-37, ECHR 2002-V) but I am not convinced that this practice is compatible with the Convention. It is important to remind ourselves here of the wording of the relevant provision of the Convention (emphasis added):

Article 43

Referral to the Grand Chamber

“1. Within a period of three months from the date of the judgment of the Chamber, any party to the case may, in exceptional cases, request that the case be referred to the Grand Chamber.

2. A panel of five judges of the Grand Chamber shall accept the request if the case raises a serious question affecting the interpretation or application of the Convention or the Protocols thereto, or a serious issue of general importance.

3. If the panel accepts the request, the Grand Chamber shall decide the case by means of a judgment.”

The Court has rightly expressed the following views when interpreting this provision (see K. and T. v. Finland [GC], no. 25702/94, § 140, ECHR 2001-VII):

“The Court would first note that all three paragraphs of Article 43 use the term ‘the case’ (‘ l’affaire ’) for describing the matter which is being brought before the Grand Chamber. In particular, paragraph 3 of Article 43 provides that the Grand Chamber is to ‘decide the case ’ – that is the whole case and not simply the ‘serious question’ or ‘serious issue’ mentioned in paragraph 2 – ‘by means of a judgment’. The wording of Article 43 makes it clear that, whilst the existence of ‘a serious question affecting the interpretation or application of the Convention or the Protocols thereto, or a serious issue of general importance’ (paragraph 2) is a prerequisite for acceptance of a party’s request, the consequence of acceptance is that the whole ‘case’ is referred to the Grand Chamber to be decided afresh by means of a new judgment (paragraph 3). The same term ‘the case’ (‘ l’affaire ’) is also used in Article 44 § 2 which defines the conditions under which the judgments of a Chamber become final. If a request by a party for referral under Article 43 has been accepted, Article 44 can only be understood as meaning that the entire judgment of the Chamber will be set aside in order to be replaced by the new judgment of the Grand Chamber envisaged by Article 43 § 3. This being so, the ‘case’ referred to the Grand Chamber necessarily embraces all aspects of the application previously examined by the Chamber in its judgment, and not only the serious ‘question’ or ‘issue’ at the basis of the referral. In sum, there is no basis for a merely partial referral of the case to the Grand Chamber.”.

In the same judgment (ibid., § 141) the Court added the following statement:

“The Court would add, for the sake of clarification, that the ‘case’ referred to the Grand Chamber is the application as it has been declared admissible (see, mutatis mutandis , Ireland v. the United Kingdom , judgment of 18 January 1978, Series A no. 25, p. 63, § 157). This does not mean, however, that the Grand Chamber may not also examine, where appropriate, issues relating to the admissibility of the application in the same manner as this is possible in normal Chamber proceedings, for example by virtue of Article 35 § 4 in fine of the Convention (which empowers the Court to ‘reject any application which it considers inadmissible ... at any stage of the proceedings’), or where such issues have been joined to the merits or where they are otherwise relevant at the merits stage.”

The above-quoted clarification is difficult to accept. The main argument used here is the practice in the proceedings before the Commission and the Court before the 1998 Protocol No. 11 entered into force, whereas this reform completely reshaped the whole system.

In my view, the request submitted by a party under Article 43 concerns the case. Subsequently the Grand Chamber decides the case . The term “case” refers to the whole case, and not only the part of the application which has been declared admissible. There are no limitations upon the scope of the request. Moreover, the “serious question affecting the interpretation or application of the Convention” or “serious issue of general importance” may arise in the context of complaints which have been declared inadmissible. Therefore, the acceptance of the request lodged under Article 43 should mean that the whole Chamber judgment is quashed, and not only the part of the judgment which decides on the merits of the case. There are no grounds for dividing the Chamber judgment into two parts: one which is untouchable and one which is quashed.

Article 19, which defines the mandate of the Court (“to ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto”), will be better observed if the Grand Chamber accepts for examination the complaints which have been declared inadmissible by the Chamber.

Moreover, the approach adopted by the Chamber may be seen as an infringement of the principle that all parties should have equal rights. A Government requesting the referral of a case to the Grand Chamber does not face the risk that the complaints that have been declared inadmissible will be examined on the merits, whereas the applicant faces the risk that the complaints declared admissible by the Chamber may be declared inadmissible by the Grand Chamber.

It is also important to note the provisions of the Convention and of the Rules of Court determining when the judgments or decisions of the Court become final. Firstly, Article 44 of the Convention unequivocally establishes when “judgments” (ergo rulings on the admissibility and merits of a case) become final. Secondly, when the Rules of Court determine the conditions in which a decision or a judgment is to become final, they do so expressly. In particular, with regard to single-judge and Committee proceedings, Rule 52A § 1 and Rule 53 § 4, sentence 1, state that decisions under Article 27 of the Convention and decisions and judgments under Article 28 of the Convention are final. When dealing with Chamber proceedings, Rule 54 § 3, sentences 1 and 2, expressly provides:

“In the exercise of the competences under paragraph 2 (b) of this Rule, the President of the Section, acting as a single judge, may at once declare part of the application inadmissible or strike part of the application out of the Court’s list of cases. The decision shall be final.”

There are no similar provisions concerning Chamber judgments. This is another argument in favour of the view that the parts of the Chamber judgments declaring certain grievances inadmissible should not become final if the case is referred to the Grand Chamber.

The literal, systemic and teleological interpretations all point therefore in the same direction: the scope of the case before the Grand Chamber should not be reduced to the complaints declared admissible by the Chamber.

3. The reasoning in the present case emphasises the status of the applicant as a member of parliament (see paragraphs 242 to 245 of the judgment). There is no doubt that Parliament should be protected by way of parliamentary immunities and other privileges granted to its members because the members of the parliamentary opposition may be targeted by the authorities much more frequently than other persons and also because their speech may fall into the category of official speech, which is protected neither by fundamental constitutional rights nor by the Convention rights (see my concurring opinion appended to the judgment in the case of Makraduli v. the former Yugoslav Republic of Macedonia , nos. 64659/11 and 24133/13, 19 July 2018).

At the same time, parliamentary immunities and other privileges are not individual rights. They always protect the public interest and not the parliamentarians’ private interests. They shield the parliamentary function, not personal self-fulfilment. The legislature is therefore the master of the immunity of inviolability and may lift it – in accordance with procedures established by law – when it considers it appropriate. As explained by A. Esmein in his classic textbook:

“ Les immunités parlementaires, dont nous abordons l’étude, ont l’apparence de véritables faveurs accordées aux membres du Parlement ; mais, en réalité, elles n’ont point ce caractère. Elles n’existent que dans l’intérêt de l’Assemblée elle-même, à laquelle appartiennent ceux qui en profitent, et dans l’intérêt de la nation que représente cette Assemblée. Elles ont pour but d’assurer l’indépendance et le libre fonctionnement de l’Assemblée ; elles sont établies dans l’intérêt public, non dans un intérêt particulier. ” (“Parliamentary immunities, the focus of our study here, take on the appearance of genuine favours granted to members of parliament, but in reality this is not their nature. They exist only in the interests of the Assembly itself, to which those who benefit from them belong, and in the interests of the nation that this Assembly represents. Their purpose is to ensure the independence and free functioning of the Assembly; they are established in the public interest, and not in any private interest.”) (A. Esmein, Éléments de droit constitutionnel français et comparé , Librairie de la société du Recueil Sirey, Paris, 1914, 6th ed., p. 953)

Moreover, the limits upon the content of “non-official” speech should be the same for all individuals. It is therefore essential to underline that had the applicant not been a member of parliament, the outcome of the instant case should have been exactly the same. The fact that he is no longer a parliamentarian today does not change his status as a right-holder under the Convention.

I note, en passant , that the Grand Chamber has endorsed in paragraph 384 the following view expressed in earlier case-law (emphasis added):

“While freedom of expression is important for everybody, it is especially so for an elected representative of the people. He represents his electorate , draws attention to their preoccupations and defends their interests ... (see Castells , cited above, § 42).”

This vision of the parliamentary mandate is very problematic. The Turkish Constitution says the exact opposite in Article 80, which provides:

“Members of the Grand National Assembly of Turkey shall not represent their own constituencies or constituents, but the nation as a whole.”

More importantly, in the European constitutional tradition, members of parliament represent the nation or the people, not their electorate. A. Esmein summarises this tradition in the following terms:

“ Les représentants ne tiennent pas leurs pouvoirs, en droit, du collège électoral qui les a élus, mais de la nation tout, entière. Ils participent, en effet, à l’exercice de la souveraineté. Or, celle-ci « appartient à la nation, aucune section du peuple ni aucun individu ne peut s’en attribuer l’exercice », ni encore moins le déléguer. Cette vérité a été traduite dans la Constitution de 1791 par une formule heureuse, répétée depuis lors par bien des Constitutions : « Les représentants nommés dans les départements ne seront pas représentants d’un département particulier, mais de la nation entière, et il ne pourra leur être donné aucun mandat ». Il résulte de là que le député élu ne saurait être considéré comme le mandataire de ses électeurs. ” (“Representatives derive their powers, in law, not from the electoral college that elected them, but from the nation as a whole. Indeed, they participate in the exercise of sovereignty. And the latter ‘appertains to the nation; no section of the people nor any individual may assume the exercise thereof’, let alone delegate it. This truth was reflected in the 1791 Constitution by felicitous wording that has subsequently been repeated in many constitutions: ‘The representatives elected in the départements shall not be representatives of a particular département , but of the entire nation, and no mandate may be given to them.’ It follows that an elected member of parliament cannot be regarded as the proxy of his constituents.”) ( op. cit. , p. 307)

This also shows that the essence of the parliamentary mandate consists in representing the people or the nation, and not in the free exercise of human rights for the purposes of personal self-fulfilment or of asserting private interests which lie at the basis of these rights.

4. I agree nonetheless that Article 10 applies in the instant case because, in my view, the applicant’s speech does not fall into the category of official speech (see my dissenting opinions appended to the judgments in the cases of Baka v. Hungary [GC], no. 20261/12, 23 June 2016, and Szanyi v. Hungary , no. 35493/13, 8 November 2016).

I further agree with the general lines of argument developed in paragraphs 271 to 280 of the reasoning, although I also agree with those who consider that finding a violation of Article 10 because of the insufficient quality of domestic law, without waiting for the outcome of the domestic criminal proceedings, is not without posing some problems. At the same time, I have serious reservations concerning the approach adopted in paragraphs 256 to 270.

5. Concerning the non-liability of parliamentarians, the per curiam opinion states the following in paragraph 261:

“The applicant, for his part, submitted that he had given similar speeches during proceedings of the National Assembly and that the speeches in question were therefore protected by the first paragraph of Article 83 of the Constitution. On this issue, the Court considers that it was the task of the national authorities, and in particular the domestic courts, to determine first of all whether the speeches on account of which the applicant was charged and placed in pre-trial detention were covered by parliamentary non-liability as provided for in the first paragraph of Article 83 of the Constitution. In this connection, the Court reiterates that the national authorities have a procedural obligation to perform a judicial review to prevent any abuse of power (see Karácsony and Others , cited above, §§ 133-36 and the authorities cited therein).”

I note that the applicant’s claim in this respect has not been sufficiently substantiated, either before the domestic courts or before this Court. In particular, the applicant has not corroborated his allegations by verbatim quotations from his earlier statements, made in the course of the National Assembly’s work. In his pleadings at the domestic level he vaguely referred to “speeches he had given between 2008 and 2016” (see paragraph 91 of the judgment). It is therefore difficult to agree with the view that the authorities failed to adequately address this issue.

6. In the instant case, the interference with the applicant’s freedom of expression consists in criminal prosecution. The very lifting of parliamentary immunity is not per se an interference with the freedom of speech of a parliamentarian. However, as it enables the institution of criminal proceedings, it is closely linked to the impugned interference and may be seen as an non-detachable element of it.

The instant case raises important issues concerning the relationship between the pouvoir constituant and the Convention. While the argument that the legislature is in any event the master of the immunity of inviolability may be invoked in defence of provisional Article 20 of the Constitution, I nonetheless agree with the view that this provision, temporarily suspending the application of a constitutional rule in the context of the instant case, is difficult to reconcile with supra-legal (supra-positive) standards of the rule of law and I subscribe to the critical assessments expressed in this respect. At the same time, in my view, it is problematic to try to extract the impugned constitutional reforms from the interference as a whole and to assess separately their compatibility with the requirements of Article 10 § 2 of the Convention as if they were themselves an “isolated” and independent interference with the freedom of speech. More importantly, the nature and scope of the legitimate expectations inferred by the Court from the Turkish Constitution for the purpose of this assessment, as well as the methodology applied for that purpose, may be called into question.

The majority express the following viewpoint in paragraph 269 of the judgment:

“In the Court’s view, bearing in mind Turkish parliamentary practice and tradition, a member of parliament could not reasonably expect that such a procedure would be introduced during his term of office, thereby undermining the freedom of expression of members of the National Assembly.”

The view that the impugned reforms have departed from Turkish parliamentary practice and tradition does not seem unfounded, but the categorical assertion quoted above goes much further than that and requires extensive justification. To make such a strong statement about the Turkish constitutional system, it would have been necessary to examine national parliamentary practice and tradition in detail beforehand, starting with their legal status and content. I am not sure that Turkish parliamentary practice and tradition can be sources of legally protected expectations to the extent that such practice and tradition do not overlap with unwritten legal principles recognised as sources of law. It was therefore necessary to examine thoroughly all the written and unwritten constitutional limitations upon the exercise of the pouvoir constituant in Turkey, recognised in the domestic legal system. Under the approach adopted, parliamentary practice and tradition become sources of Turkish constitutional law.

The per curiam opinion states further in paragraph 270 (emphasis added):

“The Court’s case-law indicates that the foreseeability requirement is satisfied where the individual can know from the wording of the relevant legislation, and, if need be, with the assistance of the courts’ interpretation of it, what acts and omissions will make him criminally liable (see, among other authorities, Güler and Uğur , cited above, § 50, and Kudrevičius and Others , cited above, § 108). In the present case, having regard to the wording of the first two paragraphs of Article 83 of the Constitution and the interpretation, or rather lack thereof, of that provision by the national courts, the Court considers that the interference with the exercise of the applicant’s freedom of expression was not ‘prescribed by law’ in that it did not satisfy the requirement of foreseeability, since in defending a political viewpoint, the applicant could legitimately expect to enjoy the benefit of the constitutional legal framework in place, affording the protection of immunity for political speech and constitutional procedural safeguards (see, mutatis mutandis , Lykourezos v. Greece , no. 33554/03, §§ 54-56, ECHR 2006-VIII).”

This part of the reasoning triggers the following reservations. Firstly, the reasoning very rightly asserts that the Court’s case-law indicates that the foreseeability requirement is satisfied where the individual can know from the wording of the relevant legislation, and, if need be, with the assistance of the courts’ interpretation of it, what acts and omissions will make him criminally liable. What acts and omissions will make him criminally liable depends upon the substantive law, not upon procedural law and certainly not upon the scope of procedural immunities. The adoption of provisional Article 20 of the Constitution has not changed the acts and omissions which will make the applicant criminally liable.

Secondly, I note in connection with this that parliamentary inviolability operates on the plane of procedural law. It consists of special procedural guarantees, and more precisely, the requirement to obtain authorisation for arresting, questioning, detaining or trying a member of parliament. I am not persuaded that these procedural regulations can be a source of substantive legitimate expectations and a basis for planning how to exercise freedom of expression. I observe in this context that under the case-law on Article 7 of the Convention, procedural rules are relevant and fall under the scope of that Article in so far as they influence the severity of the penalty (see Scoppola v. Italy (no. 2) [GC], no. 10249/03, §§ 110-13, 17 September 2009; Coëme and Others v. Belgium , nos. 32492/96 and 4 others, § 149, ECHR 2000-VII; and Previti v. Italy (dec.), no. 1845/08, §§ 79-85, 12 February 2013).

Thirdly, I am not persuaded the applicant could legitimately expect to enjoy the benefit of the constitutional legal framework in place. The starting-point is the assumption that the pouvoir constituant is sovereign and may introduce constitutional changes at any time. Constitutional changes carried out in compliance with the rule of law rarely meet the requirement of foreseeability. The Constitution cannot form the basis for an expectation that the constitutional order will not be changed. The Constitution can only be the basis of a legitimate expectation that unconstitutional amendments to it will not be adopted. These two expectations are not identical.

Fourthly, legitimate private expectations are based mainly upon legal rules protecting private interests. Legal rules protecting public interests have to be continuously assessed and reassessed and may be adjusted in order to better protect those interests. Individuals basing their expectations upon public-interest rules must take this specificity into account. Therefore, the legitimacy of private expectations based upon public-interest legal rules is necessarily weaker than that of private expectations based upon legal rules protecting private interests. This applies, in particular, to rules on procedural parliamentary immunity granted – as explained above – in order to protect the functioning of Parliament and constitutional democracy in general, and not the personal self-fulfilment or other private interests of parliamentarians. Persons basing their private expectations upon procedural parliamentary immunities must therefore always take into account the fact that the relevant legal rules may be changed.

Fifthly, under the Court’s long-standing and well-established case-law, the interpretation of national law is a matter for the national authorities (see, for instance, Cangı v. Turkey , no. 24973/15, § 42, 29 January 2019). This principle applies to the determination of legitimate expectations protected by national law and stemming directly from general legal rules (as distinct from expectations stemming from individual acts or from other actions or omissions in an individual case). The determination of the existence of such types of expectations requires a far-reaching interpretation of domestic law. The Court should therefore refrain from making any independent findings in this respect.

To conclude this part of my votum separatum : the approach adopted enters very deeply into the sphere of the interpretation and application of domestic law and assigns a new telos to public-interest legal rules by redirecting them, to a large extent, towards the protection of private interests. It entails the privatisation and “ droit-de-l’hommisation ” of parliamentary immunities.

Furthermore, if I understand the reasoning correctly, the unstated underlying assumption is that an unfavourable change in procedural rules concerning an indictment for activities covered by Convention rights is as such an interference with those rights, which should observe the requirement of foreseeability. This issue deserves much deeper consideration in the reasoning.

The essential problem under Article 10 of the Convention lies, however, in Article 314 §§ 1 and 2 of the Criminal Code. The unclear wording of those provisions is a sufficient reason to find a violation of Article 10 of the Convention. The impugned constitutional reforms are certainly an important element of the general background to the instant case (relevant especially under Article 18) but their negative assessment is neither a sufficient nor a necessary ground for finding a violation of Article 10.

7. In paragraphs 369 and 370, the Grand Chamber subscribes to the following view expressed by the Chamber:

“... the Court finds it necessary to take into account the Constitutional Court’s exceptional caseload following the declaration of the state of emergency in July 2016 ...

In the light of the foregoing, although the duration of thirteen months and four days before the Constitutional Court could not be described as ‘speedy’ in an ordinary context, in the specific circumstances of the case the Court considers that there has been no violation of Article 5 § 4 of the Convention.”

I agree that it is necessary to take into account the Constitutional Court’s exceptional caseload following the declaration of the state of emergency in July 2016 but, in my view, the duration of thirteen months and four days of the proceedings before the Constitutional Court is not compatible with the Convention. The authorities should have reacted promptly by enacting legislation ensuring a speedy review of detention decisions. For instance, they could have empowered ordinary courts to examine complaints on this subject.

The Grand Chamber also states the following (see paragraph 366 of the judgment):

“It has already been established in Mehmet Hasan Altan (cited above, § 159) and Şahin Alpay (cited above, § 131) that Article 5 § 4 of the Convention is applicable to proceedings before the Turkish Constitutional Court.”

It would be more precise to say that Article 5 § 4 of the Convention is applicable in a situation, like that of the applicant, in which a domestic court places someone in pre-trial detention. The authorities have to put in place the guarantees provided by this provision, be it by granting access to the Constitutional Court or to other courts. As the remedy provided under Turkish law is a complaint to the Constitutional Court, this domestic court should therefore comply with the requirement of promptness enshrined in Article 5 § 4.

8. In point 14 of the operative part the Court holds that the respondent State is to take all necessary measures to secure the applicant’s immediate release. Point 14 of the operative part has to be read in the context of paragraphs 440-42 of the reasoning, and especially the following important statement in paragraph 442 :

“For the present applicant, the continuation of his pre-trial detention, on grounds pertaining to the same factual context, would entail a prolongation of the violation of his rights as well as a breach of the obligation on the respondent State to abide by the Court’s judgment in accordance with Article 46 § 1 of the Convention.”

This part of the reasoning explains that there is therefore an implicit rebus sic stantibus clause in point 14 of the operative part: the respondent State’s obligation to take all necessary measures to secure the applicant’s immediate release is not absolute as one cannot exclude exceptional new grounds which may justify the detention of the applicant. On the one hand, the authorities cannot circumvent the judgment by trying to bring new unsubstantiated charges against the applicant, on the other hand the instant judgment cannot be interpreted as granting the applicant immunity from prosecution even if there were fully justified grounds to start criminal proceedings against him and place him in remand custody. The judgment therefore does not exclude pre-trial detention on sufficient grounds – duly substantiated and justified by the authorities – pertaining to a modified factual context.

Taking into account the problems entailed by the two judgments in the cases of Ilgar Mammadov v. Azerbaijan (no. 15172/13, 22 May 2014) and Ilgar Mammadov v. Azerbaijan (no. 2) (no. 919/15, 16 November 2017) (see Ilgar Mammadov v. Azerbaijan (infringement proceedings) [GC], no. 15172/13, 29 May 2019, with the concurring opinions appended thereto), the Court has rightly considered that it should indicate certain measures to be taken in order to execute the instant judgment. I have voted in favour of point 14 although I have reservations concerning its exact wording as well as certain elements of the reasoning in paragraphs 440-42.

Firstly, in order to avoid interpretative disputes, it would have been preferable, in my view, to include a rebus sic stantibus clause in point 14 of the operative part itself. Some important interpretative issues would thus have been clarified in the very wording of the operative part.

Secondly, the rebus sic stantibus clause is, in my view, fully justified as such but at the same time is not sufficiently precise. The question arises as to which elements define the relevant “factual context” mentioned in paragraph 442. Moreover, and more importantly, not only would the continuation of the applicant’s pre-trial detention, on grounds pertaining to the same factual context, entail a prolongation of the violation of his rights, but a clearly unjustified pre-trial detention on grounds pertaining to a different factual context would also entail such a violation.

Thirdly, as the question whether pre-trial detention continues in violation of the present judgment may raise difficult factual and legal issues, the matter should be determined with all the guarantees of the due process of law in proceedings before an independent and impartial body, preferably in proceedings before this Court. The risk of interference by non-judicial bodies in a sphere covered by guarantees of judicial independence both at the domestic and international level, calls for the utmost caution at the stage of the execution of the instant judgment (see the joint concurring opinion of Judges Yudkivska, Pinto de Albuquerque, Wojtyczek, Dedov, Motoc, Poláčková and Hüseynov appended to the above-mentioned judgment in Ilgar Mammadov (infringement proceedings); see also my concurring opinion appended to that judgment).