Mustafa Ali Balbay, Application No: 2012/1272, 4 December 2013

A) Facts

The applicant was arrested on 6 March 2009 in connection with the “Ergenekon” investigation. Then he was elected as a member of the parliament in elections held on 12 June 2011 while under arrest and received the certificate of election on 20 June 2011. His request to be released on the ground that he is a member of the parliament was rejected by the first instance court based on the reason that the investigation fell within the scope of one of the exceptions of parliamentary immunity. The applicant was convicted for several offences on 5 August 2013. While the Constitutional Court was examining the individual application, the case was at the stage of appeal.

The applicant, stating that there is no reason justifying his arrest, that the proceedings were based on journalism activities and that he was not allowed to benefit from parliamentary immunity even though he has become a member of the parliament, claims that his rights to liberty, a fair trial and right to vote and stand for election have been violated.

B) Judgment and Reasoning of the Court

The Constitutional Court examined the case in relation to the claim that the arrest was unlawful and found the evidence in the case file sufficient for an arrest warrant. Because, according to the Court, it is not required that the evidence at the time of arrest to be at the same level with the evidence forming the basis for conviction. Complaints relating to the right to a fair trial and freedom of expression were inadmissible on the ground that the legal remedies have not yet been exhausted.

In its substantive examination in relation to the claims that the length of arrest has been unreasonable, the Constitutional Court stated that continuation of arrest can only be deemed justified where there is a public interest outweighing right to liberty and in the evaluation thereof the presumption of innocence should be taken into consideration. Even if the grounds for arrest were sufficient at the beginning, after lapse of a certain time period, the Court stated that the (first instance) court is required to put forward relevant and sufficient reasoning relating to the fact that grounds for arrest persist and that the proceedings are conducted in due manner. In determination of reasonable time, criteria such as the complexity of the case, the presence of organized crimes and the number of suspects should be considered. Additionally, the Constitutional Court reaffirmed its case law that the time period to be considered in determination of a reasonable time should be calculated until the first instance judgment.

In the examination of reasonable time, the Constitutional Court also took into consideration that the applicant has been elected as a member of the parliament. According to the Court, prevention of a member of parliament’s participation in legislative activities constituted an intervention in his/her right to stand for election as well as in the will of those who selected him/her. For this reason, the exception to the parliamentary immunity provided under Article 14 of the Constitution shall be “constructed narrowly and in favour of liberty”. When striking a balance between an individual right to liberty and public interest, the right to vote and stand for election should also be taken into consideration and public interest shall be demonstrated based on concrete facts. In order for the measure of arrest and parliamentary immunity not to be interpreted in a way entirely removing the right to stand for election, measures not preventing the enjoyment of this right should be preferred. In the case at hand, the reasons as to why judicial control measures enabling accomplishment of the said aim are not sufficient has not been provided and no proportionate balance between public interest and the applicant’s right to participate in political activities could be established. Based on this, the Constitutional Court ruled that the right to liberty of the applicant has been violated in connection with the right to elect and stand for election.

The Constitutional Court also considered the application in terms of Article 67 of the Constitution on the right to vote and right to stand for election and ruled that the applicant’s right to participate in political activities have also been violated. In its reasoning, the Court stated that the participation of the applicant in legislative activities as a result of who an unreasonable arrest decision was prevented in this manner and consequently the gross interference with the right to participate in political activities was not proportionate and in line with the requirements of a democratic society.

C) Significance of the Judgment

The Mustafa Ali Balbay judgment, given in relation to the “Ergenekon” investigation and attracted a lot of media interest, contains important considerations on how an examination of a reasonable time shall be undertaken. The Constitutional Court stated that the exceptions to parliamentary immunity shall be interpreted narrowly and in favour of liberty as much as possible and in case the person whose liberty is restricted is a member of the parliament, and regard should be had to implementing measures allowing his/her participation in legislative activities.