Opposition deputies' expulsion is 'unconstitutional as re-election renewed their immunity'

Özlem Akarsu Çelik / Duvar

Atilla Kart, lawyer and former MP of the main opposition Republican People's Party (CHP), has said that the expulsion of three opposition deputies from the Turkish parliament is against the Constitution as they had been granted new immunity from prosecution with the latest election.

Kart said that Enis Berberoğlu of the CHP and Leyla Güven and Musa Farisoğulları of the pro-Kurdish People’s Democratic Party (HDP) had their immunities lifted during the parliamentary term of 2015-2018, but their re-election in the June 24, 2018 election renewed their immunity.

Kart referred to the Article 83 of the Constitution which says: “Investigation and prosecution of a re-elected deputy shall be subject to the Assembly’s [parliament] lifting the immunity anew.”

Since the passing of a constitutional amendment in 2016, Turkish politicians can now lose their parliamentary immunity while belonging to a legal party. The process of revoking their immunity begins with the launch of a formal investigation and the summary proceedings are then sent to parliament. It is only if the parliament votes to abolish the relevant lawmaker’s immunity that the prosecution can take place.

Kart pointed out that the Turkish parliament voted to strip Berberoğlu, Güven and Farisoğulları of their legal immunity in the 2015-2018 parliamentary term, and the deputies are still legally protected from any charges until a new process is initiated.

“A deputy might have lost their immunity, but if they are re-elected, this process [of immunity having been revoked] needs to be initiated again. This has not been done for any of the three lawmakers,” Kart said.

Kart said that the three opposition deputies have seven days to apply to the Constitutional Court for the "unlawful decision" against them to be reversed – as per the Article 85 of the Constitution. The top court will make the final decision on the appeal within 15 days, he said.

Kart said that if the Constitutional Court confirms the stripping of the opposition party deputies of their legislative seats, then the top court's members “will face criminal liability.”

Both Güven and Farisoğulları were tried in the main Kurdistan Communities Union (KCK) case and were handed six and nine years in prison, respectively.

HDP deputies are often accused of having links to the Kurdistan Workers’ Party (PKK). A number of its deputies were stripped of their statuses in the past and scores of HDP members, including former lawmakers, are currently imprisoned.

Berberoğlu was sentenced to five years and 10 months in jail in the case into a story on National Intelligence Agency (MİT) trucks filled with weapons bound for Syria in early 2014. He was accused of providing footage of the trucks to journalist Can Dündar and was arrested.

Turkey’s Court of Cassation approved the conviction of Berberoğlu in 2018, while postponing the execution of the five-year jail sentence due to his status as a member of parliament.

While the final court rulings were issued way earlier, no steps were taken by the government to strip them of their statuses until June 4.