Filiz Kerestecioglu Demir v. Turkey- the impact of stripping of parliamentary immunity of an opposition MP on her right to freedom of expression

On 5 March 2019, the European Court of Human Rights communicated the case of Kerestecioglu Demir v. Turkey with the Turkish Government. The applicant, Ms Kerestecioglu, challenges the waiver of her parliamentary immunity through a constitutional amendment procedure allowing a prosecutor to pursue a criminal investigation against her on account of her participation in a peaceful public assembly as a Parliamentarian. The applicant alleges that she is being prosecuted due to her political views as an opposition politician, amounting to a violation of her right to freedom of opinion and expression protected under Article 10 of the Convention.

On 1 November 2015 the applicant was elected as a deputy and since then she has been carrying out her role as parliamentarian in the National Assembly. A prosecutor filed an investigation report against the applicant for her attendance at a public assembly, which was transmitted to the Parliament for the waiver of her immunity.

On 20 May 2016 the National Assembly passed a constitutional amendment by inserting a provisional Article in the 1982 Constitution. Pursuant to the amendment, parliamentary immunity was lifted in all cases where requests for waivers of immunity had been transmitted to the National Assembly before the date of its adoption.

The Court posed the following questions to the parties:

  1. Has the applicant exhausted domestic remedies? Particularly, considering the relevant judgments of the Turkish Constitutional Court (TCC) whether the applicant was obliged to bring an individual application before the TCC?

  2. Does the lifting of immunities following the constitutional amendment amount to an interference in the applicant’s right to freedom of expression, as a member of the opposition, within the meaning of Article 10 of the Convention?

    If so, is the alleged interference prescribed by law and necessary in a democratic society? In particular, could it be considered that the lifting of parliamentary immunities is outside the standard procedure prescribed by Articles 83 and 85 of the Constitution, corresponds to a "pressing social need" and is "proportionate to the aim legitimate aim' within the meaning of the Court's case-law?

    Regarding the decision of the legislature following to the constitutional amendment procedure, did it have a deterrent effect on the exercise by the applicant of her right to freedom of expression?

  3. What would be the concrete consequences of the lifting of the applicant's parliamentary immunity? Parties are invited to submit relevant documents relating to the criminal investigation against the applicant.

This case is important as it is one of the first to evaluate the stripping of parliamentary immunity of an MP and potential repercussions of a criminal prosecution on the freedom of expression and political activities of an opposition politician.