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On September 17, 2020, the AYM unanimously ruled that the right to be elected and to participate in political activities and the right to liberty and security of the person were violated in the individual request of Enis Berberoğlu of the CHP, who was sentenced to 5 years and 10 months in prison for ‘revealing information that must be kept confidential’.
The reason for the decision in question was published in today’s issue of the Official Gazette.
In the reasoned decision, it was pointed out that the exception of provisional article 20 of the Constitution, which temporarily lifts the immunity of the deputies, is limited not in terms of any criminal file, but to the file of elimination of the legislative inviolability of the existing legislative immunity at the time of the adoption of the constitutional reform.
It was indicated that the second paragraph of article 83 of the Constitution on legislative immunity includes the guarantee that parliamentarians cannot be arrested and prosecuted unless there is a decision of the TGNA, and the fourth paragraph of the same rule connects the investigation and prosecution of the reelected MP with the lifting of immunity by the TBMM.
On the basis that it is established that the rule that the person who was elected deputy will regain immunity in accordance with the fourth paragraph of Article 83 of the Constitution is essential and remains in force, “There is no separate and explicit provision in provisional article 20 of the Constitution that prevents the re-elected deputy from enjoying his parliamentary immunity. In this case, what needs to be done is not to broaden the scope of the exception through interpretation or introduce a new exception through interpretation, but to apply the rule.“Statements were made.
The justification also included the following statements:
* Despite the fact that he was re-elected as a deputy, it was concluded that the prosecution as a detainee continued and the execution phase was carried out and the right of the applicant to be elected and to exercise political activity was violated, which was guaranteed in Article 67 of the Constitution.
RIGHT TO LIBERTY AND PERSONAL SAFETY
Regarding the violation of the right to liberty and security, it was stated that the plaintiff again benefited from parliamentary immunity from the date of his election as a deputy due to his election as a deputy in the general elections of June 24 of 2018, so his stay in prison after that date was incompatible with the constitution. (DHA)
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