CONCURRING OPINION OF JUDGE MALINVERNI

(Translation)

I found, with the majority, that there was no violation of Article 6 § 1 of the Convention in the present case; at the same time, however, I am not entirely satisfied with that finding.

If I voted for a finding of no violation it was mainly because, in my view, the scope of the immunity afforded to members of p arliament (MPs) falls within the margin of appreciation left to the States and it is not for the Court to substitute its own assessment in order to determine whether or not immunity is necessary or appropriate in a given case.

Clearly, however, the inviolability enjoyed by Turkish MPs generally appears broader in scope than that enjoyed by their counterparts in most other States. In particular, it also covers acts committed prior to their election to Parliament. On this subject, however, the Court has already had occasion to say 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 [GC], no. 35373/97, § 87 , ECHR 2002-X ).

The conditions governing the lifting of parliamentary immunity also vary from one country to another. In several States the decision to lift an MP ’ s parliamentary immunity is purely a matter of policy, which means that Parliament uses its power of discretion and it alone is able to determine what may or may not be done against its sovereignty and independence. In practice, however, certain criteria have been developed, so that the decision does not appear arbitrary.

However, a look at the provisions that regulate the procedure for lifting parliamentary immunity in Turkey, namely, Article 83 of the Constitution and Rules 131 to 134 of the Rules of Procedure of the National Assembly, reveals that no objective criteria have been established to define the conditions for lifting immunity. This void has actually been confirmed by Turkey ’ s Constitutional Court (Chamber judgment, §§ 32 and 88). Consequently, in the light of the materials in the case file, the joint committee does not appear to have given reasons for its decision to suspend the criminal proceedings against the applicant.

The effect of this lack of reasons, combined with the lack of clearly defined objective criteria as regards the conditions for lifting immunity, was to deprive the applicant of the means of defending his rights and of the possibility of knowing on what basis the National Assembly, the body ultimately responsible for deciding whether to lift parliamentary immunity, would adopt its decision (Chamber judgment, § 89).

Furthermore, the applicant ’ s request remained on the Assembly ’ s agenda for a long time, without any decision being pronounced. The procedure for lifting immunity in Turkey therefore appears not to be subject to any requirement for prompt action. The applicant may well, therefore, have seen the lack of a decision concerning the lifting of his immunity as a tactic designed to delay the court action.

The opacity of the decision-making process concerning the lifting of parliamentary immunity in Turkey is thus open to criticism. The procedure, which appears devoid of any objective criteria defining the conditions for lifting immunity, and the inertia shown by the competent authorities, who failed to reply to the applicant ’ s request for many months, are certainly not satisfactory.

Lastly, and above all, although it is not widespread and is sometimes li mited to minor offences ( see paragraph 52 of the judgment), the possibility for MPs to waive their parliamentary immunity of their own free will is an avenue worth exploring. In a case like the present one, this possibility would afford the person concerned the benefit of two fundamental rights simultaneously – the right to be elected to Parliament, enshrined in Article 3 of Protocol No. 1, and the right to be judged, guaranteed by Article 6 – instead of them being mutually exclusive (see the dissenting opinion of J udge Bonello, joined by J udges Zupančič and Gyulumyan).

This possibility should be encouraged all the more in so far as, unlike non-liability , the very principle of inviolability is increasingly being called into question nowadays, to the point where, in some States, it has quite simply disappeared from the system of protection afforded to MPs [2] .