What is Immunity of Claim and Defense in Turkey?
Freedom of claim and defense is a legal guarantee that enables individuals to claim their rights or defend themselves freely and without the influence of any concerns before the judicial authorities. It means not being punished for the words used and the written documents submitted during the performance of these duties. The absence of any hesitation is essential for the proper fulfillment of the duty of claim and defense. The immunity of claim and defense should be interpreted broadly. Therefore, this legal guarantee is valid not only in criminal proceedings but also in civil proceedings.
This protection is closely connected to how parties present their arguments in court. For practical examples, see our guides on defense samples in Turkish law and a sample criminal defense petition in Türkiye.
What Is the Legal Basis for Immunity of Claim and Defense?
Immunity of claim and defense is based on Article 36 of the Constitution titled Freedom of Claims. Pursuant to this provision, everyone has the right to a fair trial by claiming and defending as plaintiff or defendant before the judicial authorities by using legitimate means.
In addition, in Article 128 of the Turkish Penal Code No. 5237, “immunity of claim and defense” is clearly regulated. Pursuant to the relevant provision, no penalty shall be imposed if concrete accusations or negative evaluations are made regarding individuals within the scope of claims and defenses in written or oral applications made before judicial authorities or administrative authorities. However, for this, the attributions and evaluations must be based on real and concrete facts and must be related to the conflict.
Legal Nature of Immunity of Claim and Defense
Immunity from claim and defense does not touch the disciplinary and private law consequences of the act, and only removes the violation of the criminal law. The judge has discretion as to whether the act will require disciplinary punishment and civil liability. Therefore, immunity from claim and defense should not be seen as a reason for compliance with the law. This is distinct from other grounds that exclude criminal responsibility, such as the right to self-defense (nefsi müdafaa).
What Are the Limits of Immunity of Claim and Defense?
The Criminal General Assembly of the Supreme Court of Appeals has made a precedent decision numbered 2007/4-105 E. The relevant decision has been referred to in many Constitutional Court decisions. Accordingly, there are 3 basic conditions in order to benefit from the immunity of claim and defense:
- Place Condition: The action must have been made in the petitions of the judicial organs or in the presence of these organs.
- Form Condition: The action must be made in writing with documents of the nature of the claim or defense or orally during the claim and defense.
- Proportionality Condition: The limit should not be exceeded while exercising the right.
Knowing where these limits lie is also relevant when you are giving a statement to the police in Turkey, where the way you express claims can carry legal consequences.
