PRESIDENT OF REPUBLIC OF TURKEY: “NON – ACCOUNTABLITY AND IMMUNITY”

Brussels, May 19, 2009

I. Introduction: Sincan 1st High Criminal Court Decree: “Turkish President Abdullah Gül Should Be Tried”

Our legal opinion on the decree of Sincan 1st High Criminal Court providing that “Criminal investigation can be opened for Turkish President Abdullah Gül” is as follows: As this issue was addressed in press and policy circles, as «Accountability of Turkish President», we would like to have a look at the concept of “immunity” which is granted to the President (Turkish Constitution, Article 105 titled “Presidential Accountability and Non-Accountability”), Turkish Deputies (Members of Turkish Parliament) (Turkish Constitution, Article 83 titled “Parliamentary Immunity”) and Civil Servants and other public officials (Turkish Constitution, Article 129 titled “Duties and Responsibilities, and Guarantees During Disciplinary Proceedings”) along with the public institutions and professional organizations, except for the Civil Servants, by appealing to the broad interpretation of the second paragraph of the same last Article. (for example, Attorneyship Law Article 58 – as Amended on 23/1/2008-5728/331 and following articles).

II. Turkish Constitution: “Absolute or Relative Immunity”

Current Turkish Constitution introduces two status of “immunity”:

• “Absolute Immunity” which is granted to President and Turkish Deputies to give them the freedom to act with their conscientious during the performance of their duties defined in Turkish Constitution;
• In cases, where the above does not apply and they are subject to Penal Code, “relative immunity” is applied, which means “the criminal prosecution is subject to permission”.

The Constitutions have to define the enactment, which limits the provision that requires the prosecution of a crime explicitly, and the current Turkish Constitution has stipulated this definition. In other words, we cannot talk about neither absolute nor relative immunity in cases, which are not explicitly defined in Turkish Constitution.

III. Turkish Constitution Article 105: “Presidential Accountability and Non-Accountability”

Article 105 of Turkish Constitution provides exactly that: “All Presidential decrees except those which the President of the Republic is empowered to enact by himself without the signatures of the Prime Minister and the minister concerned, in accordance with the provisions of the Constitution and other laws shall be signed by the Prime Minister, and the ministers concerned.

The Prime Minister and the ministers concerned shall be accountable for these decrees.” This means, if the President executes his responsibilities jointly with the Council of Ministers, the Prime Minister and the minister in concern will be exclusively accountable/liable for the fulfillment of such responsibility.

In the next paragraph it exactly states that: “No appeal shall be made to any legal authority, including the Constitutional Court, against the decisions and orders signed by the President of the Republic on his or her own initiative.” In conditions covered by the above two paragraphs, the absolute accountability/ liability of the President cannot be discussed. In the last paragraph of the same Article exactly states: “The President of the Republic may be impeached for high treason on the proposal of at least one-third of the total number of members of the Turkish Grand National Assembly, and by the decision of at least three-fourths of the total number of members.” Thus, the “relative immunity”, in other words “immunity that is subject to permission” is mentioned.

IV. Conclusion: “Turkish Constitution is Chary of Presidential Immunity”

It is against the legal methodology/technique to act as if Turkish President has other immunities, especially like the ones Turkish Deputies have, except for the above mentioned. Because in relative immunity, Turkish Constitution has to appoint “an authority” which will decide on whether to withdraw the immunity or not, and however, this authority has not been appointed for Turkish President.

Turkish Constitution, while inspired by French Constitution, has stated its decree by not including the provisions in French Constitution related to legal protection or immunity granted to the President.

In other words, Turkish Constitution has NOT GRANTED additional rights to the President except the above mentioned ones which are defined explicitly.

Finally, we can say that Turkish Constitution has been fairly chary of the immunities. For example, without any doubt even the Presidential Residence can be searched with the permission of the Court.

Faithfully yours

Hakan HANLI, Esq.

Senior Attorney-at-law

International & European Law, Ph.D

Member at Ankara & Brussels Bars

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