DISSENTING OPINION OF JUDGE BONELLO JOINED BY JUDGES ZUPAN ČIČ AND GYULUMYAN

I believe this judgment to be the very first in which a court of human rights has inferred that a person cannot claim the concurrent enjoyment of two fundamental human rights. I hope it is also the last.

As important as establishing what this case is about, is establishing what this case is not about. This application does not call on the Court to determine whether parliamentary immunity is compatible with the Convention and, if so, to what extent. Unlike all previous judgments on parliamentary immunity, this case examines the far narrower issue whether a member of parliament (MP) facing criminal charges can be prevented from renouncing his parliamentary immunity in order to have those criminal charges against him determined. The majority have ruled that it is not in the general interest to allow an MP to waive his immunity voluntarily to enable him to stand criminal trial.

I disagree radically with this conclusion. Unlike the majority, I voted for finding a violation of Article 6, in as much as I perceive far, but far more pressing social necessities in not obstructing the course of justice, in authorising an accused person to exercise his fundamental right of access to a court and to make use of his fundamental right to be tried within a reasonable time. Far more compelling values these, in my view, than first embalming and then enthroning a system of special privileges and immunities enjoyed always arbitrarily and often abusively.

The bare facts of the case are as follows. The applicant, an elected opposition member of the Grand National Assembly of Turkey, was formally charged in 2002 with insulting a lawyer and a public officer. He requested that his parliamentary immunity be lifted in order to stand trial, but both the j oint c ommittee of the National Assembly and the p lenary Assembly discarded his requests and in substance stayed the criminal proceedings against the applicant until the dissolution of the then current Parliament. In 2007 the applicant was re-elected and this had the effect of stopping the continuation of criminal proceedings at least till 2011. Should the applicant then be re-elected, the criminal charges against him could not be terminated before 2015 – some fifteen years after he was first criminally charged.

Article 6 enshrines several fair trial guarantees. Among others, the right to be tried within a reasonable time and the right of access to a court. The applicant and the Court chose to examine the case as one primarily relating to the right of access – a right which is not absolute and can be restricted by general interest considerations.

My dissent relies on what I consider two self-evident reflections: firstly, that there exist no general interest considerations sufficiently compelling to deprive the applicant of his fundamental right of access to a court. Secondly, that the Court should have requalified the complaint as a denial of a fair hearing within a reasonable time, in view of the fact that those modest proceedings against the applicant for insult will last at least ten years and possibly much longer.

Article 6 – Right to a court v. general interest

The ‘ general interest ’ considerations in favour of sustaining parliamentary immunity – even when the accused himself insists on renouncing it – in practice and in the year 2009 leave me tremendously unthrilled . Parliamentary immunity was born centuries ago with the laudable intent of shielding parliamentarians from the tyranny of the powerful; it has, over the years, more often than not morphed into the tyranny of some parliamentarians over those less powerful. In modern functional democracies, where parliamentarians need no longer tremble at the retribution of despots, parliamentary immunity has become far more conspicuous for protecting dishonest politicians from honest prosecutions than for protecting honest politicians from dishonest ones.

The paper virtues of parliamentary immunity, historically quite justifiable centuries ago, are, over the years, wearing quite threadbare. In well-adjusted democracies, politicians today need fear less the divine rights of kings than themselves abusing the divine wrongs of autocrats. This privilege encourages more parliamentarians to be strong against the weak rather than it shields the weak from the strong.

In its proportionality exercise, the Court had to balance out the right of any person eager to be tried when accused of criminal offences, against an ancient institute whose actual advantages appear far more theoretical than real, but whose actual abuse seems far more real than theoretical. The Court threw its weight in favour of Parliament being the exclusive arbiter of when, and if, immunity should be lifted. The Court backed the Turkish Grand National Assembly, which has unfettered discretion whether to waive the privilege without giving reasons, whether not to waive the privilege, again without giving reasons, or whether to take the day off – the constant being always: do not give reasons. Between safeguarding this unprincipled principle and safeguarding fundamental human rights, the Court has found this kermesse of arbitrariness worthy of a higher level of protection – not the Court ’ s sharpest contribution to the rule of law, and rather unimpressive if legal certainty i s anywhere on your agenda.

Again, in the proportionality exercise, the Court failed to spare a thought for the rights of the two victims of the applicant MP ’ s alleged insults. The frustration of the criminal proceedings against the applicant not only disregarded his own fundamental rights of access to a court and to be tried within a reasonable time, but also thwarted any expectations his alleged victims may have had of seeing some justice done. They too can wait till the year 2011 or 2015 , praying fervently that the applicant is not re-elected as otherwise their expectations of justice somehow reawakening will be relegated to 2015. The Court has condemned the applicant to the status of perpetual suspect, and his accusers to waiting for their own Godot – under a semblance of serially postponed justice. Is there a social need so pressing as to deny the accused the right to vindicate his reputation, and his accusers the right to vindicate theirs? I have searched for it anxiously, but have so far failed to detect any trace of it. It is the Court ’ s best kept secret.

What the Court seems to have factored into the proportionality exercise, and with some reverential awe, is the fact that the Grand National Assembly refuses to lift the immunity of MPs from both sides of the house with criminal charges against them. An even-handedness that inhibits the prosecution and the possible punishment of all suspected delinquents, whatever their political colour. The Court finds that laudable, and I respect its appreciation. But this is a non-discrimination that earns next to no points from me. I would not applaud discrimination between good and good, but can find minimal virtue in non-discrimination between bad and bad. This is more fraternity than equality, and with some liberties thrown in as well. It is like reading “ Ali Baba an d the Forty MPs ” as a morality play [3] . We now have the good, the bad, and the Honourable.

I believe that the Court had the option to analyse the existence of a pressing social need from the other end of the telescope: had the applicant ’ s immunity been lifted and the private proceedings for insult gone through the criminal courts, would parliamentary democracy in Turkey have received a blow so fatal that it could never have hoped to recover? Had the applicant been granted his request to face trial, would dire disaster have threatened the institutions? Had the Assembly allowed the Hon. Mr Kart to be tried, as he insisted, would a petrified world have witnessed the collapse of what good was left in a universe of evil? I have some problems with believing that Mr Kart ’ s petty trial on charges of insult would have challenged the French Revolution for the title of political tsunami of the millennium. Ah, and those thumping hoofs in the distance? The Horsemen of the Apocalypse, methinks.

I would have voted enthusiastically with the majority had they shown that allowing Mr Kart ’ s trial meant flirting with some Holocaust M ar k II. The Court was obviously and commendably concerned with the harmful repercussions Mr Kart ’ s trial would have had on parliamentary rule. It would have been helpful had it pointed out which.

Article 6 – Right to be tried within a reasonable time

This case was, in my view, improperly classified by the applicant as one calling in question the denial of his right of access to a court. The Court could, and should, have reclassified of its own motion the core issue of this case as that of denial of a fair trial within a reasonable time, rather than that of denial of access to a court. The Court has repeatedly (over fifty times) when the occasion arose, and in the interest of the protection of human rights, reclassified the substance of the issue to be determined [4] . Leaving the complaint in the domain of access to a court – an Article 6 right that is not absolute – compelled the Court to indulge in balancing the right of the applicant against the general interest – an exercise which would have been avoidable had the case been examined under its ‘ undue delay ’ profile.

Article 6 establishes that, in the determination of any criminal charge, everyone is entitled to a fair hearing within a reasonable time. It is the fundamental human right of every person charged with any criminal offence to have his trial held and concluded within a reasonable time. In the applicant ’ s case, though he stands formally accused of criminal offences, his trial cannot be concluded before the lapse of at least ten years from the service of the criminal charges on him – possibly fifteen years and even more.

For this Court, a trial within a reasonable time from charges to final judgment has, so far, constituted a salient element in the cluster of fair trial rights. The guarantee is intended to protect any party to court proceedings against excessive procedural delays, and more specifically, in criminal matters, to avoid that a person charged should remain too long in a state of un certainty about his or her fate [5] . The Court has repeatedly found violations of this right in trials that dragged on for periods far shorter than ten years. And yet the applicant ’ s trial, lasting at least ten years and possibly much longer, effortlessly passed the Strasbourg test by default.

In paragraph 11 3 the majority inserted a wholly novel and, in my view, reckless and hazardous proposition:

“ ... the right to obtain a judgment in respect of criminal accusations is not absolute, in particular where there is no fundamental irreversible detrimental effect on the parties ... ”

Even were I to accept in principle this inroad in human rights protection (which I definitely do not) the “irreversible detrimental effect” of criminal proceedings lasting at least ten years speaks so loud it requires no assistance or amplification. How reversible are ten years that have already elapsed? How undetrimental is that? Again, it would have been helpful had the Court listed in any detail the specific evidentiary findings of fact on which it justified such a revolutionary rejection of the “ reasonable time ” imperative .

General interests, however prominent, should never be allowed to override the core Article 6 rights, such as being tried by an independent and impartial tribunal or receiving a fair hearing within a reasonable time. In doing so the Court would be ‘ relativising ’ , perhaps for the first time, those core Article 6 guarantees, subjecting them to balancing exercises and to proportionality test s. I dread to believe that the time will ever come when the Court will uphold the trial of an accused by a partial tribunal in the pocket of the authorities on general interest grounds. And I would be very wary of a court that accepted an unfair trial held at the more delightful fringe of eternity because some social need so required. This would be the beginning of the slippery slope towards ensuring that Article 6 really becomes sterile and meaningless, a headlong rush not to miss an appointment with human rights figment and platitude.

Conflict of fundamental rights

The reference to the applicant ’ s ‘ implicit ’ waiver to his core Article 6 rights contained in paragraph 106 verges on the cynical. The Court has found that in exercising his fundamental right to stand for Parliament, the applicant has waived his fundamental right to stand trial, and that, within a reasonable time.

This, I believe, is the very first time in its long history that the Court has, in substance, affirmed that to enjoy one fundamental right a person has to sacrifice the enjoyment of another. The right to be elected to P arliament is a fundamental right (enshrined in Article 3 of Protocol No. 1 ). So is the right to be tried within a reasonable time. Foolishly, the applicant expected to enjoy both rights, and the Court quickly disabused him of that illusion – it is either one or the other. Member of p arliament? Forget about a trial. Want to be tried? Wave you r parliamentary mandate goodbye [6] . The Court has often had to limit the enjoyment of the human rights of one person when these come into collision with those of others. Never, in my experience, has an applicant been told implicitly that the Court applies the Convention on an aut aut basis. The Court has given Mr Kart a chance of trading in one birthright if he really desires to exercise the other. Wanting to enjoy one fundamental human right is tolerable; expecting to enjoy two is downright greedy.