Prolonging the provisional detention of a Member of Parliament without sufficient justification violates the freedom of expression of the people’s will and his right to stand for election.

JUDGMENT 

Selahattin Demirtaş v. Turkey  20.11.2018 (no. 2) (no. 14305/17)

 see here  

SUMMARY

The case concerned the arrest and pre-trial detention of Mr Selahattin Demirtaş, who at the time of
the events was one of the co-chairs of the Peoples’ Democratic Party (HDP), a left-wing pro-Kurdish
political party.

The Court accepted that Mr Demirtaş had been arrested and detained on “reasonable suspicion” of
having committed a criminal offence. However, having regard to the reasons given by the national
courts, the Court found that the judicial authorities had extended Mr Demirtaş’s detention on
grounds that could not be regarded as “sufficient” to justify its duration.

Although Mr Demirtaş had retained his status as a member of parliament throughout his term of
office, the Court found that his inability to take part in the activities of the National Assembly as a
result of his pre-trial detention constituted an unjustified interference with the free expression of
the opinion of the people and with his right to be elected and to sit in Parliament.

The Court found that it had been established beyond reasonable doubt that the extensions of Mr
Demirtaş’s detention, especially during two crucial campaigns, namely the referendum and the
presidential election, had pursued the predominant ulterior purpose of stifling pluralism and limiting
freedom of political debate, which was at the very core of the concept of a democratic society.
The Court therefore held, unanimously, that the respondent State was to take all necessary
measures to put an end to the applicant’s pre-trial detention.

PROVISIONS 

Article 5 par.1

Article 5 par. 3

Article 5 par. 4

Article 3 of the First Protocol

Article 18 in conjuction with article 5 par.3

Article 46

PRINCIPAL FACTS 

The applicant, Selahattin Demirtaş, is a Turkish national who was born in 1973 and is currently
detained in Edirne (Turkey). At the material time, he was one of the co-chairs of the Peoples’ Democratic Party (HDP), a left-wing pro-Kurdish political party. From 2007 onwards he was a member of the Turkish Grand National Assembly. Following parliamentary elections in November 2015, he was re-elected as an HDP member of parliament, and his term of office ended at the time of the June 2018 elections.

In September and October 2014, members of Daesh (Islamic State) launched an offensive on the
Syrian town of Kobani, some 15 km from the Turkish border town of Suruç. Armed clashes took
place between Daesh forces and the People’s Protection Units (YPG), an organisation founded in
Syria and regarded as a terrorist organisation by Turkey on account of its links with the PKK (the
Workers’ Party of Kurdistan). From 2 October 2014 onwards, a large number of demonstrations
were held in Turkey and local and international NGOs called for solidarity with Kobani against the
siege by Daesh. From 6 October 2014, the demonstrations became violent.

Previously, during late 2012 and January 2013, a peace process known as the “solution process” had
been initiated with a view to finding a lasting, peaceful solution to the “Kurdish question”. A series of
reforms aimed at improving human rights protection were implemented. In February 2015 a tenpoint
reconciliation declaration, known as the “Dolmabahçe consensus”, was presented to the public
by a delegation of HDP members of parliament and the then Deputy Prime Minister.

The HDP achieved 13% of the vote in the June 2015 parliamentary elections, passing the threshold
for representation in the National Assembly. The AKP, the ruling party, lost its majority in
Parliament. On 20 July 2015 a terrorist attack apparently carried out by Daesh took place in Suruç,
leaving 34 people dead and more than 100 injured. On 22 July 2015, in another terrorist attack in
Ceylanpınar, two police officers were killed. The murders, allegedly committed by members of the
PKK, resulted de facto in the end of the “solution process”. The day after that attack, the PKK’s
leaders urged the people to arm themselves and to dig underground passages that could be used
during armed clashes. They called for the proclamation of a political system of self-governance and
announced that all civil servants in the region would now be considered accomplices of the AKP and
would risk being targeted. In November 2015 the HDP polled 10% of the vote in elections won by the
AKP, which regained its majority in the National Assembly.

On 20 May 2016 the National Assembly passed a constitutional amendment whereby parliamentary
immunity was lifted in all cases where requests for the lifting of immunity had been transmitted to
the National Assembly prior to the date of adoption of the amendment. The amendment affected a
total of 154 members of the National Assembly, including 55 from the HDP. On various dates, 14
HDP members of parliament, including Mr Demirtaş, and one from the CHP were placed in pre-trial
detention as the subject of criminal investigations.
A total of 70 members of parliament applied to the Constitutional Court for a review of the
constitutional amendment, arguing that it should be treated as a “parliamentary decision” taken
under the Constitution to lift the immunity attaching to their status as members of parliament. The
Constitutional Court unanimously rejected the application, finding that the case before it concerned
a constitutional amendment in the formal sense of the term and not a parliamentary decision. It
stated that the amendment in question could be reviewed in accordance with the procedure laid
down in Article 148 of the Constitution, by which only the President of Turkey or one-fifth of the 550
members of the National Assembly could apply to the Constitutional Court for a review. Finding that
this condition was not satisfied in the case before it, the Constitutional Court rejected the
application.

Some 31 investigation reports, the vast majority concerning terrorism-related offences, were drawn
up by public prosecutors in respect of Mr Demirtaş while he was serving as a member of parliament.
Following the entry into force of the constitutional amendment, the Diyarbakır public prosecutor
decided to join all the criminal investigations in a single file. On six occasions the competent public
prosecutors issued summonses for Mr Demirtaş to give evidence; however, he failed to appear
before the investigating authorities. On 4 November 2016 he was arrested at his home and taken into police custody. On the same day, assisted by three lawyers, he appeared before the public
prosecutor and maintained that he had been arrested and taken into police custody on account of
his political activities and on the orders of the President of Turkey. He stated on that occasion that
he would not answer any questions relating to the accusations against him. The public prosecutor
called for him to be placed in pre-trial detention for membership of an armed terrorist organisation
and incitement to commit an offence.

On 8 November 2016 Mr Demirtaş lodged an objection against the order for his pre-trial detention,
but it was dismissed.

On 11 January 2017 the public prosecutor filed a bill of indictment against Mr Demirtaş, charging
him with forming or leading an armed terrorist organisation, disseminating propaganda in favour of
a terrorist organisation, incitement to commit an offence, condoning crime and criminals, public
incitement to hatred and hostility, incitement to disobey the law, organising and participating in
unlawful meetings and demonstrations, and not complying with orders by the security forces for the
dispersal of an unlawful demonstration. He sought a sentence of between 43 and 142 years’
imprisonment. On 22 March 2017, at the request of the Ministry of Justice on public-safety grounds,
the Court of Cassation transferred the case to the Ankara Assize Court.

During the trial Mr Demirtaş argued that he had been detained for expressing his political opinions
and denied committing any criminal offence. In the course of the investigation and the trial, he
lodged more than 15 objections against his continued pre-trial detention. The national courts
repeatedly extended his detention. The criminal proceedings are currently pending before the
Ankara Assize Court.

On 17 November 2016 and 29 May 2018 Mr Demirtaş lodged individual applications with the
Constitutional Court. The first was dismissed, while the second is still pending.

THE DECISION OF THE COURT

Article 5 § 1

As regards Mr Demirtaş’s complaint that his pre-trial detention did not comply with domestic
legislation, the Court found that neither the interpretation nor the application of domestic law by
the Constitutional Court appeared arbitrary or unreasonable. Mr Demirtaş had been placed and kept
in pre-trial detention following the lifting of his parliamentary immunity and in accordance with
Articles 100 et seq. of the Code of Criminal Procedure. This part of the application had to be declared
inadmissible as being manifestly ill-founded.

The Court noted that that while Mr Demirtaş was serving as a member of parliament, public
prosecutors had submitted 31 investigation reports about him to the National Assembly in
connection with requests to have his parliamentary immunity lifted. The criminal investigations had
all been joined into a single file. After he had refused to give evidence to the investigating
authorities, Mr Demirtaş had been arrested and taken into police custody on 4 November 2016. The
Court observed that Mr Demirtaş had been deprived of his liberty on suspicion of having committed
several offences, some of which were terrorism-related. It also noted that the national authorities, in
particular the first-instance courts and the Constitutional Court, had found that it was possible to
conclude that Mr Demirtaş had been acting in accordance with the instructions of the leaders of a
terrorist organisation.

Having regard to the requirements of Article 5 § 1 of the Convention as to the
level of factual justification needed at the stage of suspicion, the Court considered that there had
been sufficient information in the criminal case file to satisfy an objective observer that Mr Demirtaş
might have committed at least some of the offences for which he had been prosecuted. It concluded
that he could be said to have been arrested and detained on “reasonable suspicion” of having
committed a criminal offence and that there had therefore been no violation of Article 5 § 1 of the
Convention.

Article 5 § 3

Having been placed in pre-trial detention on 4 November 2016, Mr Demirtaş was still being deprived
of his liberty. As to whether there was concrete evidence giving rise to a suspicion that he had
committed an offence, the Court accepted that the suspicions against Mr Demirtaş could have
accounted for his initial detention. It further observed that the judges ruling on his detention had
also based their decisions on the fact that he was accused of offences listed in Article 100 § 3 of the
Code of Criminal Procedure. In accordance with that Article, for certain offences Turkish law
provided for a statutory presumption of the existence of grounds for detention: a risk of absconding,
tampering with evidence or putting pressure on witnesses, victims and other persons.

In that connection, the Court reaffirmed that any system of mandatory detention on remand was
per se incompatible with Article 5 § 3 of the Convention. Where the law provided for a presumption
concerning the grounds for pre-trial detention, it nevertheless had to be convincingly demonstrated
that there were concrete facts warranting a departure from the rule of respect for individual liberty.
In the present case, the Court noted that the domestic courts’ finding that alternative measures to
detention appeared insufficient had not been based on any analysis of Mr Demirtaş’s personal
situation. It found that the judicial authorities had made barely any mention of the specific
circumstances substantiating any risks in that regard, and nor had they specified how such risks had
been established and had persisted over such a lengthy period.

The Court observed that the domestic courts had also extended Mr Demirtaş’s pre-trial detention on
the basis of the number and nature of the alleged offences, and that they had taken into account the
severity of the sentences prescribed by law for such offences. Even assuming that the severity of the
potential sentences and the nature of the charges might have justified his initial pre-trial detention,
as the Constitutional Court had maintained, the Court considered that they could not have formed
the sole reason for extending his detention, particularly at a late stage of the proceedings.

The Court further observed that the national courts had also referred to Mr Demirtaş’s failure to give
evidence to the investigating authorities as a ground for extending his detention. The Constitutional
Court had concluded from this that there was a risk of his absconding. The Court nevertheless
considered that the judicial authorities had not explained how the failure of Mr Demirtaş – who at
the time had been co-chair of the third largest political party represented in the National Assembly –
to give evidence could have indicated a flight risk. In that context, the Court attached considerable
weight to the findings of the Constitutional Court judge in the minority, who had pointed out in his
dissenting opinion that Mr Demirtaş had travelled abroad several times and had always come back
without demonstrating any intention to flee. The Court also noted that he had long been aware of
the criminal investigations of which he was the subject and of the seriousness of the charges against
him, yet despite that, he had never absconded.

Lastly, as regards the other reasons given by the national courts for keeping Mr Demirtaş in
detention, the Court observed at the outset that they entailed a formulaic enumeration of the
grounds of general scope. It was especially struck by the lack of a thorough analysis of the arguments
in favour of releasing him. It pointed out that decisions worded in formulaic terms could on no
account be regarded as sufficient to justify a person’s initial and continued pre-trial detention.
Having regard to the reasons provided by the national courts, the Court held that the judicial
authorities had extended Mr Demirtaş’s detention on grounds that could not be regarded as
“sufficient” to justify its duration. There had therefore been a violation of Article 5 § 3 of the
Convention.

Article 5 § 4

As regards Mr Demirtaş’s alleged lack of access to the investigation file, the Court acknowledged
that the evidence in the file was of fundamental importance for challenging the lawfulness of his
detention. It observed, however, as the Constitutional Court had done, that Mr Demirtaş and his
representatives had had unrestricted access to the investigation reports submitted to the National
Assembly. It further noted that although he had not had an unlimited right of access to the evidence
in the file, Mr Demirtaş had had sufficient knowledge of the substance of the evidence forming the
basis for his detention and had thus had the opportunity to properly contest the reasons given to
justify the detention. This aspect of the complaint was therefore manifestly ill-founded and had to
be rejected.

Concerning the allegation by Mr Demirtaş that the proceedings before the Constitutional Court had
not complied with the Convention requirement of “speediness”, the Court observed that his
application to the Constitutional Court had been complex, being one of the first of a series of cases
raising complicated issues concerning the pre-trial detention of a member of parliament whose
parliamentary immunity had been lifted. In addition, the Court found it necessary to take into
account the Constitutional Court’s exceptional caseload following the declaration of the state of
emergency in July 2016. It observed that Mr Demirtaş had lodged an individual application with the
Constitutional Court on 17 November 2016, and that that court’s final judgment had been given on
21 December 2017. Although this period of 13 months and four days before the Constitutional Court
could not be described as “speedy” in an ordinary context, in the specific circumstances of the case
the Court found that there had been no violation of Article 5 § 4 of the Convention.

Article 3 of Protocol No. 1

The Court observed that this was the first case where it had had to examine a complaint under
Article 3 of Protocol No. 1 to the Convention concerning the effects of the continued pre-trial
detention of an elected member of parliament on the performance of his parliamentary duties.

The Court reiterated that the right to free elections was not restricted simply to the opportunity to
take part in parliamentary elections. A person thus elected was entitled to sit in Parliament.
The Court noted that having been placed in pre-trial detention on 4 November 2016, Mr Demirtaş
had been unable to take part in the activities of the legislature up to the expiry of his term of office
on 24 June 2018 – that is, for one year, seven months and 20 days. His deprivation of liberty had
made it impossible for him to perform any parliamentary duties and could be viewed, in the
circumstances, as an interference with the exercise of his rights. Having regard to its conclusion as to
the compliance of the pre-trial detention with domestic legislation, the Court could accept that the
interference had satisfied the requirements of lawfulness. In view of its findings under Article 5 § 1,
it proceeded on the assumption that the interference had pursued a legitimate aim, namely publicpolicy
imperatives, being the consequence of Mr Demirtaş’s detention, the purpose of which had
been to ensure the proper conduct of the criminal proceedings against him.

However, the Court observed that in performing their balancing exercise, neither the courts that had
ruled on the extension of his detention, those that had refused his applications for release, nor the
Constitutional Court appeared to have had sufficient regard to the fact that Mr Demirtaş was not
only a member of parliament but also one of the leaders of the country’s political opposition, whose
performance of his parliamentary duties required a high level of protection. Moreover, they had not
demonstrated that there were pressing reasons justifying keeping him in pre-trial detention for such
a lengthy period.

The Court noted that it had always emphasised that pre-trial detention was a temporary measure
and that it should be as short as possible. Deprivation of liberty was such a serious measure that it
was only justified where other, less severe measures had been considered and found to be
insufficient to safeguard the individual or public interest at stake. Such considerations applied a
fortiori in the case of a member of parliament. As the minority Constitutional Court judge had
pointed out in his dissenting opinion, the judicial authorities had not explained why the application
of an alternative measure to detention would have been insufficient. It did not appear from the case
file that they had genuinely considered the application of alternative measures to pre-trial
detention, even though such measures were provided for by domestic law. They had systematically
found that alternative measures of that kind were insufficient, without ever providing any specific
reasons connected to the individual case. Yet throughout his detention, Mr Demirtaş had been
deprived of all opportunity to devote himself to his parliamentary responsibilities.

The Court concluded that although Mr Demirtaş had retained his status as a member of parliament
throughout his term of office and had been able to receive his salary in that capacity, his inability to
take part in the activities of the National Assembly as a result of his pre-trial detention constituted
an unjustified interference with the free expression of the opinion of the people and with his right to
be elected and to sit in Parliament. The measure in question had been incompatible with the very
essence of his right under Article 3 of Protocol No. 1 to be elected and to sit in Parliament and had
infringed the sovereign power of the electorate that had voted him into Parliament. There had
therefore been a violation of Article 3 of Protocol No. 1 to the Convention.

Article 18 in conjunction with Article 5 § 3

The Court noted that several criminal investigations in respect of Mr Demirtaş had been ongoing for
years, but no significant steps had been taken until the end of the “solution process” to initiate a
procedure for the lifting of his parliamentary immunity.

Reports and opinions by international observers, in particular the observations by the Commissioner
for Human Rights, indicated that the tense political climate in Turkey in recent years had created an
environment capable of influencing certain decisions by the national courts, especially during the
state of emergency. Concordant inferences drawn from that context confirmed that the judicial
authorities had reacted harshly to Mr Demirtaş’s conduct, on account of his position as one of the
leaders of the opposition, and also to the conduct of other HDP members of parliament and elected
mayors, as well as to dissenting voices more generally.

The Court observed that Mr Demirtaş did not see himself solely as an individual victim of a violation,
but that he claimed to have been kept in pre-trial detention chiefly on account of his position as one
of the leaders of the political opposition. The Court thus considered that what was under threat was
the democratic system itself, not just Mr Demirtaş’s rights and freedoms as an individual.
The Court found that it had been established beyond reasonable doubt that the extensions of Mr
Demirtaş’s detention, especially during two crucial campaigns, namely the referendum and the
presidential election, had pursued the predominant ulterior purpose of stifling pluralism and limiting
freedom of political debate, which was at the very core of the concept of a democratic society. There
had therefore been a violation of Article 18 in conjunction with Article 5 § 3.

Article 10

Having regard to all the findings it had reached, the Court considered it unnecessary to rule
separately on either the admissibility or the merits of the complaint under Article 10.

Article 34

The Court observed that there was no evidence that the investigations carried out into Mr
Demirtaş’s lawyers had been designed to induce him to withdraw or modify his complaint or
otherwise interfere with the effective exercise of his right of individual petition, or indeed that they
had had such an effect. Accordingly, the Court found that the respondent State had not breached its
obligations under Article 34 of the Convention.

Article 46

By virtue of Article 46 of the Convention, the High Contracting Parties undertook to abide by the
final judgment of the Court in any case to which they were parties.

The Court reiterated that it was primarily for the State concerned to choose the means to be used in
its domestic legal order to discharge its legal obligation under Article 46. This discretion as to the
manner of execution of a judgment reflected the freedom of choice attaching to the primary
obligation of the Contracting States under the Convention to secure the rights and freedoms
guaranteed. Nevertheless, where the nature of the violation found was such as to leave no real
choice as to the measures required to remedy it, the Court could decide to indicate only one
individual measure.

The Court considered that any continuation of Mr Demirtaş’s pre-trial detention would entail a
prolongation of the violation of Article 5 § 3 and Article 18 of the Convention and a breach of the
obligations on respondent States to abide by the Court’s judgment. That being so, the Court held
that the respondent State was to ensure that Mr Demirtaş’s pre-trial detention was ended at the
earliest possible date, unless new grounds or evidence justifying his continued detention were put
forward.

Just satisfaction (Article 41)

The Court held that Turkey was to pay the applicant 10,000 euros (EUR) in respect of non-pecuniary
damage and EUR 15,000 in respect of costs and expenses.

Separate opinions

Judge Karakaş expressed a separate opinion, which is annexed to the judgment(echrcaselaw.com editing). 


ECHRCaseLaw
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