Deputies’ immunity targeted as bureaucrats remain untouchable

However, no one is discussing the immunity of members of the judiciary and the military, who are almost untouchable due to constitutional provisions.

The existing Constitution, drafted under martial law after a coup d’état, allows members of some branches of the government to go untouched by judicial proceedings. Among these privileged groups are the military and the judiciary. Though Turkey has made 16 amendments to the Constitution and changed 75 of its articles thus far, no action has been taken against the elimination of immunities.

The lifting of immunities was a major obstacle that prevented the government from replacing the Constitution with a more civilian one last year. While the main opposition parties -- the Republican People’s Party (CHP) and the Nationalist Movement Party (MHP) -- promoted the abolishment of parliamentary immunity as a precondition for their support for constitutional reform, the ruling Justice and Development Party (AK Party) argued that the immunities of all groups -- political, judicial and military -- should be lifted simultaneously. The CHP and MHP leaders were, however, not in favor of the removal of the immunities of the judicial and military bureaucracy. Under the proposed changes to the Constitution, a deputy will never be charged for his or her legislative work. In 1982, members of the military junta inserted special provisions into Provisional Article 15 of the Constitution which give them immunity from litigation. Although many years have passed since then, this article has not been amended.

A draft constitution prepared by a team of legal experts in 2007 aimed to lift immunities for all groups. Deputies, for example, would not be able to benefit from immunity if they were charged with embezzling, corruption, theft, fraud, divulging state secrets, smuggling and participation in terrorist acts. Members of Parliament would still face legal action if they commit such crimes after they are elected. The draft also planned to lift immunities for members of the judiciary and the military.

However, the draft faced strong resistance in Parliament from the CHP and the MHP.

A total of 514 criminal cases are currently pending for deputies in Parliament. No legal action can be taken against them due to their parliamentary immunity. A majority of these cases are against deputies from the pro-Kurdish Peace and Democracy Party (BDP). There are 318 cases against BDP deputies. The BDP deputies are followed by AK Party deputies, with 119 cases. There are 56 cases against CHP deputies and 20 for MHP deputies.

An overwhelming majority of these cases are related to the abuse of power by the deputies.

Apart from immunity for politicians and members of the judiciary and the military, several professional groups also benefit from immunity. Among them are general directors, board members, governors, members of city councils who are employed under the Law on Trial of Civil Servants and Other Government Officials, mayors, civil servants and other municipality employees and village heads.

Police officers, gendarmerie officers, district night guards, coast guards, forest guards and civil servants and managers at the State Waterworks Authority (DSİ), the General Directorate of Highways, the Social Services and Child Protection Agency (SHÇEK), the State Meteorology Bureau, the Turkish Statistics Institute (TurkStat), the Turkish Atomic Energy Agency (TAEK), the Religious Affairs Directorate and the İstanbul Waterworks Authority (İSKİ) can be tried only if their superiors approve the cases.

Members of the Supreme Board of Judges and Prosecutors (HSYK), on the other hand, cannot stand trial under any circumstances.  Members of the judiciary and the military also have immunity, enshrined in the Law on the Supreme Court of Appeals and the Law on the Military Supreme Court of Appeals. Rectors cannot stand trial without the permission of the Supreme Board of Education (YÖK), and academics cannot stand trial without the approval of rectors.

The 1982 Constitution absolutely disallows the prosecution of chiefs of General Staff.

Politicians, however, cannot escape trial once their parliamentary immunity is lifted. A deputy stands trial as soon as s/he loses his/her status as a deputy. The latest examples are Aysel Tuğluk and Ahmet Türk -- two Kurdish politicians who were stripped of their parliamentary immunity after their Democratic Society Party (DTP) was shut down in late 2009 on charges of supporting terrorism and separatism.