MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1507/H46-36

19 September 2024

1507th meeting, 17-19 September 2024 (DH) Human rights   H46-36 Selahattin Demirtaş (No. 2) group v. Turkey (Application No. 14305/17) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2024)812, CM/Del/Dec(2024)1501/H46-35

 

Application	Case	Judgment of	Final on	Indicator for the classification
14305/17	SELAHATTİN DEMİRTAŞ (No. 2)	22/12/2020	Grand Chamber	Complex problem and urgent individual measures
14332/17	YÜKSEKDAĞ ŞENOĞLU AND OTHERS	08/11/2022	03/04/2023

Case description

The Selahattin Demirtaş (No. 2) case concerns the arrest and pre-trial detention of, and criminal proceedings against, the applicant, a member of the National Assembly and one of the leaders of the Peoples’ Democratic Party (HDP).

In October 2014, violent protests took place in 36 provinces in eastern Türkiye (“6-8 October events”), followed by further violence in 2015 in the wake of the breakdown of negotiations aimed at resolving the “Kurdish question” (the “solution process”). On 20 May 2016, with a view “to address public indignation about statements by certain members of parliament constituting emotional and moral support for terrorism”, Article 83 § 2 of the Constitution was amended, lifting inviolability from prosecution for members of parliament in respect of whom requests for its lifting had been transmitted to the National Assembly prior to the date of adoption of the amendment. The applicant, who had made statements relating to issues including the 6-8 October events, was one of 154 parliamentarians (including 55 HDP members) who lost parliamentary inviolability following the constitutional amendment.

The applicant was arrested on 4 November 2016 and placed in pre-trial detention, charged with offences under various provisions of the Criminal Code, Prevention of Terrorism Act, and Meetings and Demonstrations Act, including membership of an armed organisation (Article 314 of the Criminal Code: “CC”) and public incitement to commit an offence (Article 214 CC).

Under Article 5 §§ 1 and 3, the Court considered, in respect of the applicant’s pre-trial detention between 4 November 2016 and 7 December 2018, that the domestic courts had failed to give specific facts or information that could give rise to a reasonable suspicion that the applicant had committed the offences in question and justify his arrest and pre-trial detention (violations of Article 5 §§ 1 and 3).

It further held that the way in which his parliamentary inviolability was removed, the failure of the domestic courts to comply with their procedural obligations by not carrying out any examination of whether the speeches in issue were covered by the applicant’s parliamentary non‑liability, and the reasoning of the courts in imposing initial and continued pre-trial detention on him without conducting a balancing exercise, violated his rights to freedom of expression and to sit as a member of parliament (violations of Article 10 and Article 3 of Protocol No. 1).

Finally, taking into account, among other elements, the applicant’s return to pre-trial detention on 20 September 2019, the Court found it established that the applicant’s detention pursued the ulterior purpose of stifling pluralism and limiting freedom of political debate (violation of Article 18 in conjunction with Article 5).

The Court indicated under Article 46 that the nature of the violation under Article 18 left no real choice as to the measures required to remedy it, and that any continuation of the applicant’s pre-trial detention on grounds pertaining to the same factual context would entail a prolongation of the violation of his rights as well as a breach of the obligation on the respondent State to abide by the Court’s judgment in accordance with Article 46 § 1 of the Convention. It therefore held that Türkiye had to take all necessary measures to secure the applicant’s immediate release.

The Yüksekdağ Şenoğlu and Others case concerns the lifting by the Constitutional amendment of 20 May 2016 of the parliamentary inviolability of the applicants, 13 HDP Members of Parliament, including the other HDP co-leader at the material time, Figen Yüksekdağ Şenoğlu. According to the Court’s findings, criminal proceedings were then initiated against the applicants “mainly for terrorism-related offences and they were placed in pre-trial detention on various dates mainly on account of their political actions” (§§ 507-509). The Court found the same violations of the Convention as in the Selahattin Demirtaş (No. 2) judgment (Articles 10, 5 §§ 1 and 3, Article 3 of Protocol No. 1, and Article 18 in conjunction with Article 5) on similar grounds. In addition it found, for some of the applicants, a violation of the right to a speedy decision on the lawfulness of detention on account of the use of stereotyped reasoning by domestic court in denying access to the investigation file (Article 5 § 4). Finally the Court included the same indication under Article 46 as in the Selahattin Demirtaş (No. 2) case and held that, as regards the applicants still deprived of their liberty, Türkiye had to take all necessary measures to secure their immediate release.[1]

Status of execution

Individual measures

A more complete description of the domestic proceedings since the European Court’s examination and the previous examinations by the Committee can be found in the Notes prepared for the 1451^st (December 2022) and 1419^th (December 2021) meetings.

On 16 May 2024 the Assize Court delivered its concise judgment and convicted the applicants under various charges.

At its 1501^st meeting (June 2024) (DH), the Committee noted the Assize Court’s decision to convict some of the applicants including Mr Demirtaş and Ms Yüksekdağ Şenoğlu and invited the Turkish authorities to provide, as soon as possible, detailed information on the outcome of the proceedings with respect to all of the applicants in the present cases, together with information on the trial court’s assessment regarding how the alleged acts against the applicants differed from those characterised by the Court as the lawful exercise of Convention rights by political representatives. Recalling that individual applications of Mr Demirtaş and Ms Yüksekdağ Şenoğlu concerning their pre-trial detention are still pending before the Constitutional Court, and that of Mr Demirtaş before the European Court, the Committee further pointed out that decisions of these courts could provide guidance to the Committee on the individual measures required in the present cases. It thus strongly urged the authorities to ensure that the Constitutional Court completes its examination of both applicants’ complaints without further delay and with full regard to the Court’s findings, particularly under Article 18 of the Convention that the applicants’ detention pursued the ulterior purpose of stifling pluralism and limiting freedom of political debate. The Committee lastly urged the Turkish authorities to take all necessary measures to secure the immediate release of all applicants, for example by considering alternative measures to detention, until the European Court or the Constitutional Court establishes whether the alleged acts of the applicants at the basis of the Assize Court’s judgment differed from those characterised by the Court as the lawful exercise of their Convention rights as political representatives.

In their submissions for the present meeting (DH-DD(2024)812), the authorities informed the Committee that Mr Demirtaş was tried for charges under 47 offences and convicted under eleven of them.[2] The Assize Court sentenced him to a total of 37 years and 60 months’ imprisonment.

Figen Yüksekdağ Şenoğlu was tried for 35 separate offences and convicted under eight charges[3]. The Assize Court sentenced her to 30 years and 33 months’ imprisonment. The applicants were either acquitted of the other charges or the Assize Court decided that there were no grounds to impose a sentence for some of the offences since the alleged acts remained within the scope of legislative non-liability. Both applicants lodged their appeal with the Regional Appeal Court. At the time of the preparation of the present Notes, the Assize Court had not yet delivered its reasoned judgment.

The authorities further indicated that the Assize Court further ordered the applicants’ detention after making a separate assessment in respect of each offence that they were convicted for. This decision will also be examined by the appeal court.

The authorities further provided information on the average length of proceedings before the Regional Appeal Courts and the Court of Cassation which is approximately one year for each court. Both courts give priority to cases that concern detention after conviction.

In addition to the above, the authorities mainly reiterated their previous submissions, in particular that the trial court decided that pre-trial detention of both applicants had not been the subject-matter of the European Court’s judgment. In prolonging the applicants’ detention at various hearings, the trial court had held that the applicants’ current detention was based on charges, facts and new evidence other than those examined by the European Court and therefore falls outside the scope of the present judgments. Furthermore, according to the authorities, the applicants’ current deprivation of liberty following their conviction no longer falls under Article 5 § 1 (c) of the Convention (pre-trial detention) but instead under Article 5 § 1(a) (imprisonment after conviction). The deadlines set for detention under the Code on Criminal Procedure are therefore no longer applicable in view of the fact that the applicants’ pretrial detention ended when the trial court ordered their detention after conviction.

The authorities referred once again to the three Constitutional Court judgments of 21 November 2023 in which the Constitutional Court had found manifestly ill-founded similar complaints of three members of the HDP Central executive Board, who stood trial as co-accused together with Mr Demirtaş and Ms Yüksekdağ Şenoğlu concerning the 6-8 October events before the same Assize Court. Lastly, recalling that the applicants’ complaints concerning their pre-trial detention are pending before the Constitutional Court and that Mr Demirtaş also has a new complaint on the same issue pending before the European Court[4] the authorities repeated their request from the Committee to await the outcome of these proceedings.

As regards the applicants in the case of Yüksekdağ Şenoğlu and others, Ayhan Bilgen, who was one of the co-accused in the proceedings before the Ankara Assize Court, was acquitted of all charges against him, and the others, with the exception of Ms Yüksekdağ Şenoğlu, have been released.

General measures

At its last examination of the general measures during its 1492^nd (DH) meeting, the Committee stressed the importance of the States’ positive obligation to create a favourable environment where different and alternative ideas can flourish and urged, once again, the authorities to adopt concrete legislative and other measures capable of strengthening freedom of political debate, pluralism, and the freedom of expression of elected representatives, including in particular safeguards protecting and respecting parliamentary immunity of elected representatives of the opposition parties. The Committee invited the authorities to provide detailed information on the steps taken by the domestic courts to safeguard the rights of elected representatives in the context of criminal proceedings, and also on any measures envisaged or taken to spread awareness among the judiciary on the need to carry out such balancing exercises as indicated in the Selahattin Demirtas No. 2 judgment. It further invited the authorities to provide information on the number of parliamentarians who are currently subject to a request for lifting of their immunity as well as those who are subject to criminal proceedings, with details on the reasoning provided to initiate either one of the proceedings.

In reply, the authorities mainly reiterated their previous submissions. Referring to the two types of parliamentary immunity (non-liability and inviolability) provided under the Constitution, they argued that the Turkish legislative system provides the necessary safeguards to ensure freedom of political debate, pluralism, the freedom of expression of elected representatives, and the right to stand for elections and that there are no restrictions on the participation of parliamentarians in political debate. Non-liability ensures that elected representatives freely express their opinions in the National Assembly and repeat or disseminate such views outside the Assembly, unless the Assembly decides otherwise. It is absolute and continues to protect members of parliament even after the end of their term of office. As regards inviolability, a parliamentarian who is alleged to have committed an offence, before or after the elections, cannot be subject to criminal proceedings, unless the Assembly decides otherwise. The Constitution provides for two exceptions to the principle of parliamentary inviolability: (i) where a member of parliament is caught in flagrante delicto; and (ii) serious cases falling under Article 14 of the Constitution, provided that a criminal investigation has been initiated before the election. Such protection is only temporary, which means that criminal proceedings can follow their normal course once the member of parliament’s term of office has ended.

The authorities further provided information on the procedure for lifting parliamentary immunity and argued that there is an efficient filtering mechanism for this. Under the Rules of Procedure of the National Assembly, the Joint Committee makes an assessment of each case before reaching a decision on either lifting the inviolability of the parliamentarian concerned, or deferring the proceedings until the end of the mandate. In case of an objection to a deferral decision or if the Joint Committee lifts inviolability of a parliamentarian, the issue is debated in Plenary, during which the National Assembly examines the individual circumstances of each case. Furthermore, under Article 85 of the Constitution, the parliamentarian concerned or another member may appeal to the Constitutional Court against a decision by the National Assembly lifting inviolability.

The authorities argued that provisional Article 20 of the Constitution, as adopted by the National Assembly on 20 May 2016, brought a temporary and procedural exception to Article 83 of the Constitution which lifted inviolability from prosecution for members of parliament in respect of whom requests for its lifting had been transmitted to the National Assembly prior to the date of adoption of the amendment. This had been an isolated incident, related to the specific facts of the present application, and no similar constitutional amendment had been adopted since then. It was therefore impossible to take general measures in respect of this violation. Further stressing that the Parliament uses its powers to lift immunity in only exceptional circumstances, the authorities added that there are no requests pending before the Plenary and that the Parliament lifted immunities of only two parliamentarians since the Constitutional amendment in 2016.[5]

Analysis of the Secretariat

Individual measures

It appears from the authorities’ submissions that Mr Demirtaş and Ms Yüksekdağ Şenoğlu are the only two applicants currently in detention. The authorities could be encouraged to continue informing the Committee about the state of proceedings with respect to the remaining applicants, in particular if those who are released pending trial are subsequently convicted or placed in detention on account of the same charges examined by the Court in the Yüksekdağ Şenoğlu and others case.

As regards Mr Demirtaş and Ms Yüksekdağ Şenoğlu, the Assize Court delivered its concise judgment on 16 May 2024, convicting the applicants of various charges (see status of execution above).

At the time of the preparation of the present Notes, the Assize Court had still not issued its reasoned judgment. Likewise, neither the Constitutional Court nor the European Court had delivered their decisions in respect of the applicants’ complaints regarding their detention, which could guide the Committee on to what extent the Assize Court based its judgment on the same factual context as that of the European Court in the present cases, and whether it provided a direct and sufficiently strong link between the applicants and the offences they were convicted of.

In the light of the above the Committee could once again request the Turkish authorities to provide, as soon as possible, detailed information together with the English translation of relevant parts of the Assize Court’s reasoning, in particular its assessment of how the charges that formed the basis of the applicants’ convictions differed from those characterised by the Court as the lawful exercise of the Convention rights by political representatives.

The Committee could furthermore strongly urge the authorities once again to ensure that the Constitutional Court completes its examination of both applicants’ complaints without further delay and with full regard to the Court’s findings particularly under Article 18 of the Convention, and to ensure the applicants’ immediate release, for example by exploring alternative measures to detention, until the European Court or the Constitutional Court establishes whether the alleged acts of the applicants at the basis of the Assize Court’s judgment differed from those characterised by the European Court as the lawful exercise of their Convention rights as political representatives.

In view of the above, the Committee could reaffirm its readiness to ensure the implementation of the judgment and decide to resume examination of the individual measures at the 1514^th meeting (December 2024) (DH).

General measures

The general measures followed by the Committee in this group relates to effective protection of political speech of elected representatives, including the opposition.[6]

The authorities persist in their previous argument that temporary amendment of Article 83/2 of the Constitution in 2016 which lifted the applicants’ inviolability was an isolated incident and therefore no general measures could be taken in the present group.

The Court’s findings in this group however do not only concern the removal of the applicants’ parliamentary inviolability through the Constitutional amendment. The Court further criticised the fact that, despite the Constitutional safeguards, the judicial authorities placed the applicants in pre-trial detention and prosecuted them mainly on account of their political speeches and actions. In this process they had failed to comply with their procedural obligations to carry out an assessment of whether the applicants were protected by parliamentary non-liability and failed to perform a balancing exercise from the standpoint of Article 3 of Protocol No. 1 by properly assessing the requirement to protect the freedom of expression of elected political representatives (Selahattin Demirtaş No. 2, §§ 263, 394, 395 and Yüksekdağ Şenoğlu and Others, §§ 509 and 617).

Furthermore, the Court found that the judicial authorities had reacted harshly, not only to Mr Demirtaş’s conduct as a leader of the opposition, but also to the conduct of other HDP members of parliament and elected mayors, and to dissenting voices more generally. It further pointed out that Mr Demirtaş’s detention sent a dangerous message to the entire population, significantly reducing the scope of free democratic debate (§ 436).

It is recalled that at its 1459^th meeting in June 2023, the Committee invited the authorities to provide detailed information on how  judicial practice, in the context of criminal proceedings against elected representatives, ensures that the alleged offence is not directly linked to the representative’s political activity and provides an effective remedy to allow the representative to challenge an order for detention or other measure which would prevent the full exercise of the functions he or she has been entrusted by the electorate to perform.

The authorities maintain that there are no requests pending before the Plenary of the National Assembly and that the National Assembly has lifted the immunity of only two parliamentarians since the Constitutional amendment in 2016. While there may not be requests pending before the Plenary, it nevertheless appears from publicly available information that in January 2024, requests for lifting the immunity of nine parliamentarians were submitted to the Joint Committee.[7] In July 2024 further requests were submitted to the same committee in respect of ten Parliamentarians.[8] The EU Commission Türkiye 2023 Report indicates that by the end of the 27^th legislative term (2018-2023), the total number of members of parliament subject to the legislative immunity resolution and a request for the lifting of their immunity was 206 (180 of them belonged to the parliamentary opposition). Whilst, according to the authorities, only two deputies seem to have their immunity revoked since 2016, the high number of resolutions and requests for lifting immunity of parliamentarians raises serious concern.

In view of the Court’s findings under Article 18 that the applicants’ detention pursued the ulterior purpose of stifling pluralism and limiting freedom of political debate, the Committee could consider requesting detailed information on the reasoning of these resolutions and requests for lifting immunity, in particular whether they concerned speeches of the parliamentarians made during their term of office, as well as the state of proceedings for each request.

The Committee could once again request information on the practice of the prosecutors and criminal courts when dealing with proceedings against elected political representatives, particularly when there is a risk that the criminal accusations against elected political representatives relate to speeches or other forms of expression made by them in the course of legitimate public debate.

In view of the above, the Committee could urge, once again, the authorities to adopt concrete legislative and other measures capable of strengthening freedom of political debate, pluralism, and the freedom of expression of elected representatives, including in particular safeguards protecting and respecting parliamentary immunity of elected representatives of the opposition parties.

The authorities could further consider taking awareness-raising measures among the judges and prosecutors on the importance of safeguarding parliamentary speech, especially those from opposition parties, in line with the requirements of pluralism, tolerance and broadmindedness and the need to carry out balancing exercise by protecting the freedom of expression and political opinions of the member of parliament and ensuring that alleged offence is not directly linked to their political activity.

Financing assured: YES