The right to be elected is not limited to the ability to stand as a candidate or to receive votes in an election. The ability of the elected person to carry out the representative function is also important when constitutional protection is assessed. Particularly in disputes where parliamentary membership, legislative immunity and criminal proceedings intersect, the general rule must be correctly distinguished from the exception.
This article is based on Articles 67 and 83 of the Constitution and on the decision Kadri Enis Berberoğlu (2) [GK], Application No. 2018/30030, September 17, 2020. It is not assumed that all types of election disputes share a single remedy or a common application period. Candidacy, the election result, the status of membership of parliament and criminal proceedings may arise from different acts.
What does the right to be elected and to engage in political activity protect?
Article 67 of the Constitution regulates citizens' rights to vote, to stand for election, and to engage in political activity either independently or within a political party. These rights ensure that democratic representation is formed and sustained. For the voter's choice to become representative activity, the legal situation after the election is important, not only the ballot stage. The relationship between the military personnel's prohibition on political activity and freedom of expression is examined in the article Military personnel's freedom of expression and the duty of political neutrality.
The protection of the right does not mean that the elected person is exempt from all laws. Eligibility requirements, obligations to leave public office, or constitutional rules concerning criminal proceedings may exist. However, when a restriction is applied, the explicit legal basis and the relevant constitutional safeguards must be assessed together.
Are candidacy and the function of an elected person the same stage?
Non-admission of a candidacy, an objection to an election result, and interference with the exercise of the status acquired after election are different legal matters. In the first, the candidacy requirements; in the second, the election procedure and its results; in the third, interference with the use of the status acquired come to the fore. The authority to which an objection is directed may also vary accordingly.
This distinction is decisive for the subject of the application. The outcome of a court decision and an act of the election board should not be combined vaguely in the same application. The act concerned, the right it affects and the date from which it takes effect should be stated clearly.
How is legislative non-liability distinguished from legislative immunity?
Article 83 of the Constitution regulates the non-liability of members of parliament for their votes and statements in parliamentary work and for opinions expressed in parliament, and, under certain conditions, their immunity from criminal procedural measures. These are not the same institution in purpose and scope. In a concrete dispute, it must be determined which of them is invoked.
Legislative immunity creates a guarantee aimed at preventing the representative function from being rendered ineffective by outside interference. It has constitutional exceptions. However, without separating the area to which an exception applies from the area to which the general rule applies, the same result cannot be drawn for all criminal files.
Is immunity assessed as a personal privilege?
The institutional purpose of the protection is to allow legislative activity to be carried out freely. Therefore, the examination is not made only on the basis of the personal interest of the member of parliament; the functioning of democratic representation is also assessed. This feature makes it important that the interpretation of the scope of immunity be rights-based.
However, the institutional purpose does not replace the concrete constitutional text. The adjudicating authority must show both the relevant general provision and, where one exists, the explicit scope of the exception. Which file, which date and which status an exception covers must be examined separately.
What problem did the Kadri Enis Berberoğlu (2) decision resolve?
The application concerns how the immunity status of a person re-elected as a member of parliament is assessed in criminal proceedings. The Constitutional Court (Anayasa Mahkemesi, AYM) examined the relationship between the exception in Provisional Article 20 of the Constitution and the general rule on re-election in Article 83. It considered extending the scope of the exception through interpretation to be to the detriment of the right-holder. (Kadri Enis Berberoğlu (2), §§ 82–93.)
Short and direct quotation from the decision
“An exception cannot be interpreted broadly, and its scope cannot be extended.”
Source of quotation: AYM, Kadri Enis Berberoğlu (2) [GK], Application No. 2018/30030, September 17, 2020, § 90.
Which rights did the AYM find had been violated?
The AYM's operative part: The right to be elected and to engage in political activity under Article 67 of the Constitution and the right to liberty and security of the person under Article 19 were found to have been violated. It was unanimously decided that a retrial be held to remedy the consequences of the violation. The other allegations of violation were not separately examined.
Legal characterization: The operative part of this decision should not be presented as a violation of freedom of expression. The fact that the file concerns a political debate does not allow the constitutional right found violated in the operative part to be changed. The concrete subject of the decision is the assessment of re-election and immunity.
Why is the distinction between the general rule and the exception decisive?
An exception can be applied to the extent that the events it covers can be determined. It cannot be presumed that a provision on a temporary or specific file covers every later change of status. The wording and purpose of the exception and the chronology of the event to which it is to be applied must be examined together.
The method that can be drawn from the Berberoğlu (2) decision is not that the same result follows in every case. The method is to show clearly why the general safeguard of the right has not been applied. It is not enough for the adjudicating authority to say that it applied the exception; it must be understood how the concrete event falls within that exception.
Why does re-election require a new assessment?
The person's position in a criminal file and the constitutional status acquired after an election must be considered together. A decision given in an earlier term cannot be assumed to determine the legal effect in a new term automatically. The consequence of re-election under the relevant constitutional provision must be justified.
In such a file, the election date, the document certifying the election, earlier acts concerning immunity and the stages of the criminal proceedings must be shown in chronological order. It is not enough for the dates to appear only in annexes. The main statement of the application must make clear when the legal status changed.
Does the exception resolve all criminal procedure problems?
No. The legal basis of a custody measure, immunity, the continuation of proceedings and the consequences of a conviction are related, but they are separate questions. It should not be assumed that an examination of one issue answers all the other complaints.
For example, an application concerning deprivation of liberty and an application concerning the inability to exercise the representative function may rest on different constitutional safeguards. In a concrete application, the factual basis of each complaint and the remedy sought must be stated clearly. In this respect, it is important that the Berberoğlu (2) decision made separate findings concerning Articles 19 and 67.
What does the common sphere of protection mean in individual application?
Under Article 45 of Law No. 6216 (6216 sayılı Kanun), individual application is assessed within the common sphere of protection of the Constitution, the European Convention on Human Rights and the additional protocols to which Türkiye is a party. The fact that a right is regulated in the Constitution does not by itself show that every dispute will be examined by the AYM on the merits in individual application.
For the right to free elections, Article 3 of Protocol No. 1 to the European Convention on Human Rights contains a guarantee concerning the election of the legislature. Therefore, the type of election and the nature of the complaint must be examined separately. A decision on the election of members of parliament cannot be applied without change to the outcome section for all other types of election.
Are an election board decision and a criminal court decision examined in the same way?
The source and nature of the act are important in determining the route of application. Special procedures under electoral law, Article 79 of the Constitution and the relevant laws must be assessed separately. An immunity objection raised within criminal proceedings, however, is linked to the procedure and constitutional safeguards of those proceedings.
For this reason, giving a single election objection period for everyone would be misleading. When the decision was learned of, the specific period to be applied and the available remedy must be determined in the concrete file. The general individual application period of the AYM does not replace the special remedies that must be used earlier under electoral law.
How should the effect of interference on the representative function be shown?
How a measure affects the conduct of the elected person's function should be made concrete. The legislative activity in which the person could not take part, the continuing restriction, the consequence for status, and the duration of the interference can each be explained separately. A statement that only political activity was prevented may not be enough to show the scope of the effect.
On the other hand, the importance of the representative function cannot be turned, in every file, into a request that all criminal proceedings automatically end. The constitutional rule on which the requested legal consequence rests must be stated. The application should aim to have the legality of the concrete interference reviewed, not to prove the correctness of a political view.
| Review item | Information to be shown | Legal significance |
|---|---|---|
| Election and status | Election date and office obtained | Constitutional safeguard to be applied |
| Interference | Authority that issued the decision and the measure | Identifying the act subject to the application |
| Exception | Provision relied on and its scope | Why the general rule does not apply |
| Timeline | Dates of election, decision and learning of it | Change of status and review of time limits |
| Effect | Which aspect of the function was prevented | Weight of the interference and the remedy |
What should be done after an AYM decision is given?
Article 153 of the Constitution regulates the binding force of Constitutional Court decisions. For remedying a violation in individual application, Article 50 of Law No. 6216 is important. A decision should not be read as merely a finding of violation; the results ordered regarding a retrial or other remedies must also be examined.
When a retrial is ordered, the task of the relevant authority is to remedy the matter that caused the violation and its consequences. In this process, the reasoning and the operative part of the AYM decision should be read together. The steps required by the decision and the results the applicant separately requests must not be confused.
Does a finding of violation automatically mean acquittal?
Not every finding of violation means automatic acquittal. Which right was violated, for what reason, and what remedy was ordered are decisive. A problem of immunity or procedure and the assessment of the substance of the charge may be different legal questions.
For this reason, results not contained in the operative part should not be added when a decision is made public. Results such as a retrial, release, suspension or compensation should be stated only to the extent actually contained in the decision. The Berberoğlu (2) decision too must be read within its own concrete dispute and the reasoning for its remedy.
How should the application file be prepared?
- Documents confirming the election and the status of office should be arranged in chronological order.
- Earlier and later acts concerning immunity should be kept separate.
- The requests made and the decisions given at each stage of the criminal proceedings should be shown.
- It should be explained before which authority the constitutional objections were raised and how they were assessed.
- Service and notification records should make it possible to calculate the application periods.
- The remedy sought should be linked to the continuing interference and the alleged violation.
The presence of many political statements in the file does not replace the legal documents needed for review. When the importance of the representative function is explained, the concrete court decision, the relevant constitutional provision and the application process should remain central. In this way, the legal core of the complaint emerges, one that can be reviewed independently of the political debate.
For details on the subject, you may also see our articles Rights with qualified protection in AYM decisions, The right to vote, to stand for election and to engage in political activity and Freedom of expression of public officials. For the firm's work in this area, see the Constitutional Court and ECtHR applications page.
Conclusion
Effective protection of the right to be elected and to engage in political activity requires that interference with the elected person's exercise of their function be examined on clear and concrete legal grounds. Exceptions to legislative immunity cannot be extended in a way that would render the general safeguard ineffective.
The Kadri Enis Berberoğlu (2) decision shows the relationship between re-election and immunity and the importance of interpretation in favour of rights. However, not every election or criminal dispute is the same. A correct application must determine separately the type of election, the act, the status, the time limit and the remedy sought.
Frequently Asked Questions
Does the right to be elected protect only candidacy?
No. The fulfilment of the representative function by the elected person is also important in constitutional assessment. Its scope is examined together with the nature of the function and the nature of the interference.
Does being elected as an MP end every criminal file?
No. Legislative immunity, constitutional exceptions and the stage of the proceedings must be assessed together. An automatic result applying to all files cannot be established.
Is the Berberoğlu (2) decision a decision finding a violation of freedom of expression?
The operative part found a violation of the right to be elected and to engage in political activity and of the right to liberty and security of the person. It was not considered necessary to examine the other allegations.
Is every election dispute examined in the same way in individual application?
No. The type of election, the common sphere of protection, the act and the admissibility conditions are assessed separately. A constitutional right and the scope of individual application are not equal.
Must a file with a finding of violation end in acquittal?
The reason for the violation and the remedy stated in the operative part are decisive. A retrial order does not in every case mean an automatic acquittal on the substance of the charge.
Sources and legal bases
- Constitution of the Republic of Türkiye (Türkiye Cumhuriyeti Anayasası), Articles 19, 67, 79, 83, 153 and Provisional Article 20.
- AYM, Kadri Enis Berberoğlu (2) [GK], Application No. 2018/30030, September 17, 2020, in particular §§ 82–93, the assessment of personal liberty and the operative part. The full decision link may require logging in.
- Law No. 6216 (6216 sayılı Kanun), Articles 45–50.
- Protocol No. 1 to the European Convention on Human Rights, Article 3; the text is also quoted in § 44 of the Berberoğlu (2) decision.
- AYM, Summaries of Decisions on Qualified Rights (Nitelikli Haklar Karar Özetleri), June 2025, section on the right to be elected and to engage in political activity.