MINISTERS’ DEPUTIES

Decisions

CM/Del/Dec(2023)1483/H46-36

7 December 2023

1483rd meeting, 5-7 December 2023 (DH)

 

H46-36 Selahattin Demirtaş (No. 2) group v. Turkey (Application No. 14305/17)

Supervision of the execution of the European Court’s judgments

Reference document

CM/Notes/1483/H46-36

 

Decisions

The Deputies

1.         recalled that in these cases the Court found that the applicants, elected members of the National Assembly at the relevant times, were detained in the absence of evidence to support a reasonable suspicion they had committed an offence (violations of Article 5, §§ 1 and 3) and that their arrests and pre-trial detention pursued an ulterior purpose (violations of Article 18 taken in conjunction with Article 5); that the lifting of the applicants’ parliamentary immunity and the way the criminal law was applied to penalise them for political speeches were not foreseeable and prescribed by law (Article 10) and that their consequent detention made it effectively impossible for them to take part in the activities of the National Assembly (Article 3 of Protocol No. 1); further recalled that in the Yüksekdağ Şenoğlu and Others case the Court also found a violation of the right to a speedy decision on the lawfulness of detention on account of lack of access to the investigation file (Article 5 § 4);

2.         further recalled that the Committee in its last decision decided to focus at the present meeting on the urgent individual measures in respect of the two applicants still in detention, namely Mr Demirtaş and Ms Yüksekdağ Şenoğlu; expressed their profound regret that they remain in detention despite the Court’s findings and the Committee’s previous decisions;

3.         noted the arguments of the Turkish authorities that the applicants have been released from the charges considered by the Court for which they were initially detained and are currently detained in different proceedings; underlined, however, that in the Demirtaş case this argument was examined and rejected by the Court in its indication under Article 46, as well as by the Committee in its previous examinations and that it appears from the judgment in the Yüksekdağ Şenoğlu and others case, which was delivered long after the two proceedings against the applicant were joined, that the Court did not differentiate between the different detention orders against her;

4.         further took note of the authorities’ arguments in both cases that new evidence has emerged that was not examined by the Court in its judgments; noting the insufficiency of the information on the ruling of the Assize Court with regard to the new witness statements in the Yüksekdağ Şenoğlu case, invited the authorities to explain in more detail the evidentiary basis of the applicant’s current detention and how the acts alleged against her differ from those characterised by the Court as the lawful exercise of Convention rights by a political representative;

5.         deploring, in this context, the length of time it is taking the Constitutional Court to reach a decision on Mr Demirtaş’s application, exhorted the authorities to take all possible steps to ensure that the Constitutional Court makes its determination concerning both applicants’ ongoing detention in the shortest possible timeframe and with full regard to the Court’s findings;

6.         strongly urged the Turkish authorities, once again, to ensure the applicants’ immediate release, in the case of Mr Demirtaş, for example by exploring alternative measures to detention pending the completion of the proceedings they initiated before the Constitutional Court;

7.         reiterated their invitation to the member States, the Secretary General as well as other relevant Council of Europe bodies and Observer States to raise the issue of the applicants’ continuing detention in their contacts with the Turkish authorities and call for immediate action to bring it to an end;

8.         reaffirmed their readiness to ensure the implementation of the judgment and decided to reconsider this matter at their 1492nd meeting (March 2024) (DH), in the event that the applicants have not been released by then.