Case Summary and Outcome

In Selahattin Demirtaş v. Turkey (No. 2), the Grand Chamber of the European Court of Human Rights (ECtHR) found that the Turkish government’s attempts to curtail the political speech of its adversaries, most notably of Mr. Demirtaş (the leader of the opposition), was violative of his rights under Article 10 (freedom of expression), Articles 5(1) and 5(3) (right to liberty and security), Article 18 (limitation on use of restrictions on rights) and Protocol no. 1 Article 3 (right to free elections) of the European Convention on Human Rights (ECHR). Mr. Demirtaş was an elected member of the National Assembly and one of the co-chairs of the Peoples’ Democratic Party (a left-wing pro-Kurdish political party). Following his active political speeches and statements against the government on the Kurdish-Turkish conflict, he was arrested on suspicion of membership of an armed terrorist organisation and inciting others to commit a criminal offence. The Grand Chamber found a violation of Mr. Demirtaş’s right to freedom of expression on the grounds that the lifting of his parliamentary immunity as a result of a constitutional amendment dated May 20, 2016, his subsequent detention on November 4, 2016 and continued pre-trial detention, and the criminal proceedings brought against him on the basis of evidence comprising his political speeches, had not complied with the requirement of the quality of law for lack of foreseeability under ECHR. In holding that Mr. Demirtaş’s detention had “pursued the ulterior purpose of stifling pluralism and limiting freedom of political debate, which [were] at the very core of the concept of a democratic society”, the Court ordered the Government of Turkey to take all necessary measures to secure his immediate release. The Court also stated that the continuation of Mr. Demirtaş’s pre-trial detention would amount to elongation of the violations of ECHR, as well as breach of Turkey’s obligation to abide by the Court’s judgment in accordance with Article 46(1) of ECHR.

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Facts

 The applicant, Selahattin Demirtaş is a prominent Kurdish politician who was co-chair of the Peoples’ Democratic Party (HDP, a left-wing pro-Kurdish political party) between 2014-18 and an elected member of the Turkish Grand National Assembly (“Turkish Parliament”) from 2007 until 2018. He was also a candidate for president in the August 10, 2014 and June 24, 2018 elections, in which he received 9.76% and 8.32% of the votes respectively.

Since 1978, an armed conflict has ensued between the Republic of Turkey and various Kurdish insurgent groups demanding creation of an independent Kurdistan. In response to continuous conflicts, in 2013, a peace process known as the ‘solution process’ was initiated between the Republic of Turkey and Worker’s Party of Kurdistan (PKK) with a view to finding a peaceful everlasting solution to the Kurdish question. The applicant was, at that time, the co-chair of the Peace and Democracy Party (BDP) – a left-wing pro-Kurdish political party. The consensus on the solutions process, however, came to a stalemate when President Erdogan abruptly declared an end to negotiations and declared PKK a terrorist organization.

In 2014, an offensive was launched by the members of the armed terrorist group called “Daesh” (Islamic State and the Levant) on the Syrian town of Kobani (approximately 15 kms away from Turkish border). Following the outbreak of clashes in Syria between Daesh forces and the People’s Protection Units [or YPG, a Syrian organization with links to Worker’s Party of Kurdistan (PKK) and regarded by Turkey as a terrorist organization], Turkey opened its borders to incoming refugees gathered at the Turkish/Syrian border. However, it closed the border in the direction of Syria in order to prevent pro-Kurdish volunteers from leaving Turkey to fight against Daesh in Kobani.

From October 4, 2014, wide demonstrations were held across Turkey in response to its attempt to close the border and prevent volunteers from leaving to fight in Kobani. A large number of NGOs called for international solidarity with Kobani against the Daesh siege. These calls were furthered by HDP, who posted three tweets through its official Twitter account calling for protests against the Turkish government and the Daesh siege. The tweets (reproduced below), inter alia, urged people to join and support protests on streets and take action against the brutal aggression in Kobani.

October 6, 2014 (10.20 AM): “Urgent call to our people! Urgent call to our people from the HDP central executive board, currently in session! The situation in Kobani is extremely dangerous. We urge our people to join and support those protesting in the streets against Daesh attacks and the AKP government’s embargo over Kobani.”

 October 6, 2014 (10.51AM): “We call upon all our people, from 7 to 70, to [go out into] the streets, to [occupy] the streets and to take action against the attempted massacre in Kobani.”

“From now on, everywhere is Kobani. We call for permanent resistance until the end of the siege and brutal aggression in Kobani.”

In time, the protests ruptured into violent demonstrations, causing the death of 50 people and injuries to hundreds. While the public prosecutors blamed the applicant and the HDP for prompting violence through its repeated calls for protests, the applicant claims that his statements were mere calls for a political struggle and opposed to the idea of violence.

Subsequently, in June 2015, parliamentary elections were held in Turkey, and for the first time, the HDP passed the threshold for representation in the National Assembly and became the second largest political party, while AKP lost its majority in the Parliament. In the months after the elections, Turkey witnessed a series of terrorist attacks (committed allegedly by the PKK and Daesh), which resulted in the de facto end of the ‘solutions process’. In response, the applicant gave multiple speeches on various occasions where he defended ‘self-governance’ for the Kurds and resistance to the Turkish government.

The negotiations aimed at forming a coalition government between the AKP (with Erdogan as the chair) and HDP (with the applicant as its co-chair) failed, following which fresh elections were held again in November 2015. In this election, HDP secured 10.76% of the votes but the AKP regained the majority in the National Assembly. Thereafter, President Erdogan issued multiple statements accusing HDP of links with the PKK and insisting HDP leaders would have to “pay the price” for acts of terrorism. He regarded the applicant’s statements as “crimes against the constitution” [p. 13] and called for a constitutional amendment to strip members of parliament of their immunity from prosecution, allegedly to enable him to oust parliamentarians with links to terrorist outfits.

Finally, on May 20, 2016, the National Assembly passed a constitutional amendment entailing the insertion of a provisional Article in the 1982 Constitution. Pursuant to the amendment, parliamentary immunity, as provided for in the second paragraph of Article 83 of the Constitution, was lifted in all cases with retrospect effect, where requests for the lifting of immunity had been transmitted to the National Assembly prior to the date of adoption of the amendment in question [p. 15]. The amendment affected 154 members of the National Assembly. Notably, a challenge to the amendment was rejected by the Constitutional Court in a judgment delivered on June 3, 2016.

Following the enforcement of the amendment on June 8, 2016, the public prosecutor joined several criminal investigations against the applicant, who was placed in pre-trial detention as a subject of criminal investigation. All objections raised by Mr. Demirtaş against the pre-trial detention were dismissed. Mr. Demirtaş was tried by the Ankara 19th Assize Court on several counts of terrorism-related offences, including forming or leading an armed terrorist organization, disseminating terrorist propaganda and incitement to public hatred and hostility. The charges against him were based on the political speeches he made in his capacity as an HDP member of parliament and co-chair on the Kurdish issue and his identification of the Government’s problematic policies in relation to Kurds. Between 2016-2019, the domestic courts examined the matter of his detention on more than sixty occasions, each time extending his detention.

In a judgment delivered by the Istanbul Assize Court on September 7, 2018, the court convicted the applicant for disseminating propaganda in favour of a terrorist organization and sentenced him to imprisonment of 4 years and 8 months (under section 7(2) of the Prevention of Terrorism Act). On December 4, 2018, the judgment was upheld by the Istanbul Court of Appeals. Meanwhile, Mr. Demirtaş filed applications with the Ankara 19^th Assize Court and the Constitutional Court challenging his pre-trial detention on various grounds. While the case before the Ankara 19^th Assize Court is still pending, the Constitutional Court in a judgment dated December 21, 2017 found the complaints relating to freedom of expression and right to be elected as “manifestly ill-founded” (para 102) and declared the case as inadmissible by the court.

Notably, the Ankara 19^th Assize Court in an order dated September 2, 2019 had ordered the release of the applicant from pre-trial detention, but the Ankara public prosecutor’s office applied to the Ankara Magistrate’s Court to have the applicant placed in pre-trial detention in the context of a separate criminal proceeding. The applicant, for a second time, filed several individual applications with the Constitutional Court. Acknowledging that there was a “strong suspicion” that the applicant had committed an offence, the Constitutional Court nevertheless found the excessive detention of the applicant disproportionate and violative of his right to liberty and security under the Turkish Constitution (Article 19) and ordered pecuniary damages in his favour. However, it noted that his other applications before the Constitutional Court were still pending on account of which the court’s judgment dated June 9, 2020 had no effect on his personal situation. Subsequently, the applicant’s current pre-trial detention which began on September 20, 2019 still continues.

Mr. Demirtaş lodged an application on February 20, 2017 before the ECtHR, arguing inter alia for a violation of the right to freedom of expression under Article 10 of the Convention. In the judgment delivered by the Chamber on November 20, 2018, the Court unanimously held that there was no violation of Article 5(1) and (4) [i.e. right to liberty and security and right to a speedy review of the lawfulness of detention], whereas the applicant’s right under Article 5(3) [right to be brought promptly before a judge] and Article 3 of Protocol No. 1 [right to free elections] were violated. By six votes to one the Court also found a violation of Article 18 (limitation on use of restrictions on rights) in conjunction with Article 5 § 3. On February 19, 2019, both parties requested the case to be transferred to the Grand Chamber under Article 43 of the Convention, which was approved by the Court on March 18, 2019.

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Decision Overview

The Grand Chamber of the Court, comprising of 17 judges and presided over by Judge Ksenija Turković, delivered the judgment in the matter. The principal issue before the ECtHR was whether there was a violation of Article 10 (freedom of expression), Article 5(1) and 5(3) (right to liberty and security), Article 18 (limitation on use of restrictions on rights) taken together with Article 5, and Protocol no. 1 Article 3 (right to free elections) of the European Convention on Human Rights (‘the Convention’ or ‘ECHR’). Notably, while the ECtHR considered the applicant’s complaints under Article 5, 10, 18 and Article 3 of Protocol no. 1, it was barred from examining complaints on unlawful pre-trial detention since they were declared inadmissible by the domestic courts (Murtazaliyeva v. Russia [GC], no. 36658/05, 18 December 2018). Key findings on individual measures are detailed below:

Violation of Mr. Demirtaş’s right to freedom of expression (Article 10)

Before the Court, the applicant had contested that his detention amounted to an unlawful interference with his right to freedom of expression, as the content of his political speeches was protected under Article 83 (first paragraph) [concerning non-liability of members of parliament for dissemination of their views outside the parliament] of the Turkish Constitution. Further, the amendment lifting parliamentary immunity under Article 83 did not satisfy the “foreseeability” criteria and the wide interpretation adopted by the court in charging him for terrorism was intended to silence dissent – creating a chilling effect on free speech. Mr. Demirtaş also claimed that political criticism against the State afforded widest possible protection in a democratic society, and therefore, his continued pre-trial detention violated Article 10 of the ECHR.

On the contrary, the government argued that the interference with the applicant’s exercise of Article 10 rights was justified so as to pursue the legitimate aims of combating terrorism and protecting national security and public safety. When combined with the context in which the political speeches were given, it was possible to conclude that his statements were able to cause serious disturbances and exacerbate the security situation in south-eastern Turkey.

In response to the arguments, the Grand Chamber applied a tripartite test to analyse whether there was a violation of Article 10, those criteria being (i) interference “prescribed by law”, (ii) pursuing one or more legitimate aims listed in Article 10 para 2 and (iii) having been necessary in a democratic society. Based on the facts, it found that the lifting of the parliamentary immunity by virtue of the constitutional amendment dated May 20, 2016, subsequent detention of the applicant on November 4, 2016 and his continued detentions since, as well as the criminal proceedings initiated against him for his political speeches, did not have sufficient legal bases for interference with the exercise of his rights.

Specifically, the ECtHR expressed a strong reservation against the May 20, 2016 constitutional amendment, noting in agreement with the view of the Venice Commission that such an amendment constituted an ad homines attack on the constitutional amendment procedure (para 269). According to the Court, Mr. Demirtaş was detained and prosecuted by judicial authorities mainly on account of his political speeches without an assessment of whether his statements were subject to protection by parliamentary non-liability (para 263). Furthermore, even in cases where his political speeches were not afforded protection under Article 83 of the Constitution (first paragraph), the May 20, 2016 amendment in itself raised an issue in terms of the lack of foreseeability (para 250, 281) (i.e. a norm cannot be regarded as law under Article 10(2) of ECHR unless it is able to enable people to reasonably foresee the consequences which a given action may entail). As a member of parliament for the HDP, Mr. Demirtaş was legitimately expected to enjoy the benefits of the constitutional framework to defend his political viewpoint and was entitled to the constitutional safeguards protecting his immunity for political speech [para. 270].

On other fronts, the Court also underscored the broad interpretation by the domestic courts of the offences under subclauses (1) and (2) of Article 314 (i.e. forming or leading an armed terrorist organization and its membership). The jury’s view on this was warranted by the domestic courts’ conclusion on the political statements of the applicant where he had expressed his opposition to government policies, or where his participation in a lawful organization such as the Domestic Society Congress was deemed sufficient to constitute an active link between the applicant and the terrorist organization.  Thus, the Grand Chamber emphasized that Article 314 of the Turkish Criminal Code as well as its interpretation by the judicial authorities failed to afford the applicant adequate protection against arbitrary interference with his rights [para. 337]. Consequently, deriving from the views expressed by the Venice Commission, such an interpretation of the Criminal Code which “entails equating the exercise of the right to freedom of expression with belonging to, forming or leading an armed terrorist organisation, in the absence of any concrete evidence of such a link” was held by the Court to be unjustified and insufficient [para. 280]. Decisively, the interferences with the applicant’s freedom of expression were held by the Court to not comply with the ‘quality of law’ requirement under Article 10 of ECHR.

Violation of Mr. Demirtaş’s right to liberty and security (Article 5)

On claims concerning the right to liberty and security under Article 5(1), the Chamber judgment (dated November 20, 2018) had previously noted that there was sufficient factual justification under Article 5(1) to satisfy an objective observer that Mr Demirtaş might have committed at least some of the offences for which he had been prosecuted. Accordingly, there was no violation of Article 5(1) in view of the Court.

Holding contrary to the Chamber’s judgment on this front, the Grand Chamber concluded that the reasoning that the applicant was arrested and detained on ‘reasonable suspicion’ of having committed a criminal offence was ill-founded. It declared that there was indeed a violation of the applicant’s right under Article 5(1), given he was detained despite a lack of reasonable suspicion on his conduct of the alleged crimes. The Grand Chamber noted, for instance, that the November 4, 2016 detention order grounded its evidence on the applicant’s political speeches to substantiate terrorism-related offences under Article 314 (1) and (2) but there was no clear link between his actions (i.e. his political speeches and his participation in certain lawful meetings) and the terrorism-related offences under which he was detained [para. 338]. Furthermore, the government had failed to demonstrate that the evidence before the local courts met the standard of “reasonable suspicion” as required under Article 5 of the Convention. The Court pointed out that ‘not only were the charges against the applicant based essentially on facts that could not be reasonably considered criminal conduct under domestic law, they related mainly to the exercise by him of his Convention rights’ [para. 339].

With respect to Article 5(3) [right to trial within a reasonable time or to be released pending trial], subscribing to the Chamber’s judgment that there was insufficient justification in the applicant’s case to justify pre-trial detention, the Court held that in the absence of a reasonable suspicion, the judicial decisions prolonging the applicant’s detention were invalid as well, thus violating his right under Article 5(3) (Merabishvili v. Georgia).

Violation of Mr. Demirtaş’s right to be elected and to sit in Parliament (Article 3 of Protocol No. 1)

Relying on the findings of Articles 10 and 5(1) of the Convention for purposes of Article 3 of Protocol no. 1, the Court found that the domestic courts failed to comply with the procedural obligations under that provision. This was because the domestic courts did not examine whether the applicant was entitled to parliamentary immunity for the acts of which he had been accused [para. 394] despite the applicant’s request to the Assize Court to consider whether the impugned speeches were protected under the first paragraph of Article 83 of the Turkish Constitution. Mr. Demirtaş had contested before the court that the right to stand in parliamentary elections was illusory if he was denied an opportunity to engage in political activities of the National Assembly. The Court agreed with his reasoning.

Evidently, the Grand Chamber highlighted the role of judicial authorities in performing a ‘balancing exercise’ – between deprivation of liberty of the members of parliament and the protection of their freedom of expression of political opinions. It held that the legal system of the country should have a framework in place to offer a remedy to the MPs placed under detention to challenge and have their complaints examined on its merits, while the domestic courts should take steps to examine that the alleged offence is not directly linked to the member’s political activities.

Thus, the Grand Chamber agreed with the decision of the Chamber to conclude that the performance of the balancing exercise by the Turkish courts when ruling on the lawfulness of Mr. Demirtaş’s initial and continued pre-trial detention was not adequately proven by the government (para 395). Even though Mr. Demirtaş was both an MP and a political opposition leader, whose performance of parliamentary duties called for a high level of protection, the domestic courts had not examined whether the offences in question were directly linked to Mr. Demirtaş’s political activities or why an alternative measure to detention would have been insufficient [paras. 395 and 396]. Finally, the Court also noted that the inability of the applicant to take part in the activities of the Parliament due to his pre-trial detention was an unjustified interference with the free expression of opinion by the people as well as his own right to be elected to sit in the Parliament, and thus, conflicted with his right under Article 3 of Protocol No. 1 to be elected and to sit in Parliament [para. 397].

Pursuing an ulterior purpose by Mr. Demirtaş’s detention (Article 18 in conjunction with Article 5 of the Convention)

In concluding that the detention of Mr. Demirtaş had pursued the ulterior purpose of restricting freedom of political debate and stifling pluralism, the Court identified six factors which proved, beyond reasonable doubt, the violation of Article 18 in conjunction with Article 5 of the Convention.

Initially, the Court drew a distinction between the events prior and post the conclusion of the “solutions process”, noting that the applicant was not exposed to the risk of deprivation of liberty until the political tensions between his party (HDP) and the President’s ruling party arose after the end of the solutions process. Thereafter, the May 20, 2016 constitutional amendment stripped 55 out of 59 MPs’ of the HDP of their parliamentary immunity, and only members of the opposition parties (HDP and CHP) were convicted of criminal proceedings (para 427). This, combined with the speeches of the President (where on multiple occasions Erdogan noted that “… the leaders of HDP must pay the price”), was an indication of a targeted attempt to stifle political speech.

Second, the Court considered the pre-trial detention of other leading figures and elected members of the HDP apart from the applicant – this led the court to conclude that the pre-trial detentions followed a certain pattern (para 428). Moreover, with respect to the timings of his detention, the Grand Chamber also highlighted that Mr. Demirtaş was deprived of his liberty during two crucial campaigns where he had to conduct the campaigns from prison and comparatively, in a more difficult situation. This prevented him from contributing to the campaign against introduction of a Presidential system in Turkey (to which the applicant had expressed firm disagreement before). The Court noted that free elections and freedom of expression “formed the foundations of any democracy” [para. 430].

Remarkably, the Court also took note of the fact that even though Mr. Demirtaş would have been eligible for a conditional release as a result of the Istanbul Assize Court’s judgment dated September 20, 2019, he remained in detention on account of his conviction in a separate case against him at the Istanbul Assize Court for disseminating propaganda in favour of a terrorist organization, albeit in an investigation whose facts formed the basis of the erstwhile trial. On the basis of these factors, it concluded that the domestic authorities were not particularly interested in the applicant’s involvement in offences but rather in keeping him detained and to prevent him from carrying out his political activities [para. 433]. Finally, the Court expressed its concern, relying on various reports, over the seriously endangered independence of judiciary in Turkey [para. 434].

Based on the above grounds, the Court concluded that a further continuation of Mr. Demirtaş’s pre-trial detention would entail a furtherance of the violation of his rights and breach Turkey’s obligation to abide by the Court’s judgment in accordance with Article 46(1) of the Convention. As a result, the Court held that Turkey must take all necessary measures to secure the immediate release of Mr. Demirtaş as per the provisions of the ECHR [para. 442].

It is crucial to note the Court’s keen assessment of the reports and opinions of various international observers, particularly the findings of the Venice Commission on Turkish Criminal Code, parliamentary inviolability and independence of judiciary, as well as comments by Commissioner for Human Rights, Inter-Parliamentary Union and Amnesty International on freedom of expression and media freedom in Turkey. In the Court’s view, these reports and opinions indicated that Mr. Demirtaş’s detention was a part of the broader pattern of repression becoming increasingly common in Turkey and had resulted in influencing certain decisions by the domestic courts while also misusing the constitutional amendment procedure. In particular, the findings of the Venice Commission expressed the view that the judicial independence in Turkey was endangered by the proposed new composition of the Supreme Council which was “extremely problematic” [para. 434], while the Commissioner of Human Rights noted how criminal proceedings against members of the parliament were tainted by “serious irregularities” aimed at silencing parliamentarians and curtailing their freedom of expression. These observations by the Grand Chamber are important, particularly since they underscore attempts to deprive liberty and impel the Turkish Government to follow rule of law norms and ensure freedoms as would be available to political dissidents in a “normal” democratic society.

Notably, in a partly concurring and partly dissenting opinion issued by Judge Wojtyczek, he disagreed with the view of the Grand Chamber that members of parliament enjoy a higher standard of immunity under the Convention, or the fact that lifting of parliamentary immunity in itself interfered with the applicant’s freedom of speech. While expressing concerns with the interpretation of the foreseeability criteria in assessing political speech, Judge Wojtyczek also expressed his reservation in allowing the applicant to legitimately expect to enjoy the benefits of a constitutional legal framework, since constitutional changes in compliance with the rule of law rarely meet the requirement of foreseeability. More importantly, he noted that legitimately private expectations are based on legal rules protecting private interests and not public interest (as is the case in hand). This redirection of public-interest legal rules towards protection of private interests was viewed by him as a problematic development in the jurisprudence of the ECtHR.

Whereas, Judge Yüksel, joined by Judge Paczolay, in their partly dissenting opinion declared that the remedy delivered by the Constitutional Court was a sufficient redress against the violation of Article 5(3). Judge Yüksel also issued a separate partly concurring and partly dissenting opinion on Article 10 violations, disagreeing with the Grand Chamber on their finding that the May 20, 2016 constitutional amendment did not comply with the requirement of “quality of law”. This was because the two pillars on which the Grand Chamber’s assessment of the constitutional amendment was based (i.e. the domestic courts’ unjustified refusal to examine applicant’s speeches under Article 83 [para. 1] and that the constitutional amendment in itself deprived Article 10 protection) were erroneous. First, there was no element capable of providing a basis for finding that the domestic courts disregarded Turkish law and practice, and second, the Grand Chamber’s examinations concerning foreseeability placed constitutional amendments on the same pedestal as ordinary law – which was deeply inadequate. Perhaps what was most notable was the fact that Judge Yüksel considered the interference with the applicant’s political speech justified on grounds of national security and public safety, given the tense situation prevailing at the time.

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