DISSENTING OPINION OF JUDGE POWER

I have come to the same conclusion as Judge Bonello. The restrictions upon the applicant ’ s rights of access to a court and his right to a trial within a reasonable time are, in my view, in violation of Article 6. The vindication of such core rights, on the facts of this case, would not have undermined the importance of the principle of parliamentary immunity. I would add the following brief remarks.

The case is not about the compatibility of parliamentary immunity per se with the Convention; nor is it about the extensive application of this principle which the r espondent State, in its discretion, affords to m embers of p arliament – effectively placing them, with limited exceptions, beyond the reach of criminal law even in respect of matters that are wholly unrelated to their work as parliamentarians. The case concerns whether the applicant ought to be entitled to lift the mantle of immunity which his public office confers upon him in order to have determined, within a reasonable time, outstanding criminal proceedings which were pending prior to his election and which are entirely unconnected with his work as a parliamentarian.

Parliamentary immunity is an important pillar in constitutional history and I accept that a wide margin of appreciation is left to member States in this regard . Important as that institution is, however, one must never lose sight of the purpose for which it was intended. An uncritical and unnecessary extension of the principle to matters wholly dissociated from public office risks jeopardising public confidence in the system of parliamentary democracy itself [7] . The more remote the shielded behaviour is from the duties of public office, the greater the justification must be for permitting the benefit of immunity to apply and, by extension, the more pressing the need to justify a refusal of its waiver where core human rights are at stake. Where the immunity operates in such a way as to afford protection from or bar access to the criminal courts in relation to matters that are entirely unconnected with public office then, in my view, the justification for refusing to waive it must be established, convincingly. Specific and objective criteria which could justify such a refusal are not to be found in this case.

I disagree with the majority ’ s view concerning the effect of the “ suspension ” of justice ( see paragraph 109 of the judgment ) based, as it is, upon a certain blaming of the applicant for the deprivation of his rights under Article 6 ( see paragraph 106 of the judgment ). Essentially, he is obliged to choose between two rights. The suspension of justice is a serious matter and, in my view, should not be required unless strictly necessary. Such necessity has not been established in this case. The rights of the applicant are capable of being vindicated without damaging or undermining the general interest which parliamentary immunity seeks to preserve.

[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] 1 . See the Venice Commission ’s Re port on the regime of parliamentary immunity of 4 June 1996 (CDL-INF (96) 7, §§ 59 et seq. ).

[3] 1 . According to information furnished by the G overnment, there are 315 requests pending for the lifting of parliamentary immunity to authorise the continuation of criminal proceedings against MPs.

[4] 1 . From the judgment Handyside v. the United Kingdom (7 December 1976, § 41, Series A no. 24) to the judgment Errico v. Italy ( no. 29768/05, § 30, 24 February 2009).

[5] 2 . Stögmüller v. Austria , 10 November 1969, p. 24, § 40, Series A no. 9.

[6] 1 . See, mutatis mutandis , the partly dissenting opinion of Judge Spielmann joined by Judge Tulkens in Lykourezos v. Greece , no. 33554/03, ECHR 2006 ‑ VIII.

[7] 1 . This is demonstrated by the findings of the Group of States against corruption (GRECO ) Evaluation Team in its Report on Turkey of 10 March 2006 and which are set out in paragraph 40 of the Chamber ’ s j udgment in this case.