MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1419/H46-39

2 December 2021

1419th meeting, 30 November – 2 December 2021 (DH) Human rights   H46-39 Selahattin Demirtaş v. Turkey (No. 2) (Application No. 14305/17) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2021)121, H/Exec(2021)4-rev, DH-DD(2021)352, CM/Del/Dec(2021)1411/H46-39

 

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

Case description

The case concerns the arrest, pre-trial detention and criminal proceedings against the applicant, one of the leaders of the Peoples’ Democratic Party (HDP, a pro-Kurdish opposition party) and a member of the National Assembly.

In October 2014, violent protests took place in 36 provinces in eastern Turkey (“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.

He 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 and the reasoning of the courts in imposing pre-trial detention on him 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, 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 Turkey had to take all necessary measures to secure the applicant’s immediate release.

Status of execution

Individual measures

(1)   The three sets of criminal proceedings referred to by the Court in its judgment

The Court referred to three sets of criminal proceedings which were brought against the applicant following the amendment of Article 83 § 2 of the Constitution, lifting his parliamentary inviolability.

a)         First set of proceedings: The applicant was first placed in detention on 4 November 2016 within the scope of an investigation in Diyarbakır that contained 34 investigation reports concerning numerous terrorism-related offences. One of these reports concerned the offences of “explicit incitement to commit a crime” and “contravening Law No 2911 on Meetings and Demonstrations” with respect to the 6-8 October 2014 events. The proceedings were transferred to Ankara for security reasons. His trial commenced on 11 January 2017. These proceedings were joined with the third proceedings (see below) and are pending before the Ankara 22nd Assize Court.

b)         Second set of proceedings: On 16 August 2016 the applicant was charged with disseminating propaganda in favour of a terrorist organisation during a meeting held in Istanbul in March 2013. The Istanbul Assize Court convicted the applicant and sentenced him to four years and eight months’ imprisonment. The judgment became final on 7 December 2018. However, on 17 October 2019 a legislative reform entered into force which gave a right of appeal against convictions for such offences. On 31 October 2019 the Istanbul Assize Court accepted the applicant’s appeal application and suspended the sentence pending the appeal proceedings. The appeal was decided by the Court of Cassation on 26 April 2021, which upheld the applicant’s conviction and sentence. The applicant resumed serving the remainder of his sentence on 3 May 2021.

c)         Third set of proceedings: On 20 September 2019 the applicant was again arrested and placed in pre-trial detention for five separate offences relating to the 6-8 October 2014 events, namely, undermining the unity and territorial integrity of the State; incitement to commit murder; incitement to commit robbery; incitement to deprive another person of his liberty; incitement to attempted murder. On 30 December 2020 the Ankara Public Prosecutor filed further charges set out in a 3,530-page bill of indictment, charging the applicant and 108 co-accused with 29 different offences, including those mentioned above.

On 7 January 2021, the 22^nd Ankara Assize Court accepted the bill of indictment and underlined that the facts and parties to the case were different to those considered in the first set of proceedings and that the applicant was arrested for offences and acts not examined in the first set of proceedings. Recalling the obligation of member States under Article 46 of the Convention to comply with the European Court’s judgments and Article 90 of the Constitution (which gives precedence to the provisions of international treaties duly in force in the event of a conflict as to the scope of fundamental rights and freedoms between the treaty and a domestic statute), the 22^nd Ankara Assize Court held that the European Court’s judgment covered the applicant’s detention between 4 November 2016 and 7 December 2018, whereas the detention in the case before it, had begun on 20 September 2019. The Assize Court ordered the applicant’s continued detention, noting that alternative measures would be insufficient, mainly on account of the risk of absconding and of oppressing witnesses, victims or others.

The Ankara Assize Court reviewed ex officio the applicant’s detention at regular intervals and during hearings as well as upon the applicant’s request. On all occasions the court rejected the applicant’s request to be released. His objections to these decisions were also rejected. The last hearing took place between 8-19 November.

The applicant has continued to be held in detention on remand in connection with the third proceedings, while also serving the sentence imposed in the second proceedings.

(2)   The previous examinations by the Committee

During its first examination of the case at the 1398^th meeting (DH) (9-11 March 2021), the Committee took note of the authorities’ submissions that the applicant’s current detention falls outside the scope of the Grand Chamber judgment and also that the events and charges for his current detention differed from those concerning his initial detention, and considered that these arguments had already been examined and rejected by the Court. Underlining the Court’s conclusion under Article 46 that the continuation of the applicant’s pre-trial detention, on grounds pertaining to the same factual content, would entail a prolongation of the violation of the applicant’s rights as well as a breach of the obligation of the respondent State to abide by the Court’s judgment, the Committee urged the authorities to ensure the applicant’s immediate release. Underlining, further, the obligation of restitutio in integrum, the Committee called for the negative consequences of the violation to be eliminated without delay, including in respect of the three sets of proceedings against the applicant which were pending at the time of the Court’s examination of the case.

At the 1406^th meeting (8-10 June 2021) (DH), the authorities informed the Committee that the applicant’s conviction in the “second set of proceedings”, above, had been upheld by the Court of Cassation on 26 April 2021 and that the applicant resumed the serving of his prison sentence on 3 May 2021. The Committee in return invited the authorities to submit the text of the judgment of the Court of Cassation and its translation, together with comprehensive information on the consequences of the applicant’s conviction and instructed the Secretariat to make an assessment in time for its next examination of the case.

During its last examination of the case at the 1411^st meeting (14-16 September 2021) (DH), the Committee underlined that the heart of the violation of Article 10 found by the Court was that the unprecedented, ad homines amendment of Article 83 § 2 of the Turkish Constitution on 20 May 2016 had unforeseeably deprived the applicant of parliamentary inviolability in respect of statements he made as a member of parliament. It concluded therefore that the obligation to provide the applicant with restitutio in integrum in respect of this violation required the removal of all the negative consequences for his freedom of expression which resulted from the constitutional amendment. The Committee called for the applicant’s immediate release, the quashing of his conviction by the Istanbul Assize Court, and termination of the criminal proceedings pending before the 22nd Ankara Assize Court, together with the removal of all other negative consequences of the constitutional amendment. Finally, the Committee instructed the Secretariat to prepare a draft interim resolution for its consideration at the present meeting in the event that the applicant had still not been released.

(3)   The authorities’ submissions

In their communication of 1 October 2021 (DH-DD(2021)984), the authorities reiterated their previous submissions, arguing mainly that the applicant’s conviction in the second proceedings fall outside the scope of the Grand Chamber judgment. They claimed in particular that the Court did not examine the merits of the second proceedings under any of the articles in respect of which it found a violation, including Articles 10 and 18.

Recalling that there are two types of parliamentary immunity (absolute non-liability[1] and temporary inviolability[2]), the authorities further stressed that the Constitutional amendment of 2016 concerned the lifting of inviolability, which provided temporary protection to the parliamentarians only during their terms of office. The applicant ceased to be an MP in 2018 and therefore lost parliamentary inviolability. It would have been possible to commence criminal proceedings against him after this, even without the Constitutional amendment.

The protection under the non-liability clause, which is permanent in respect of statements made in the National Assembly and repeated elsewhere, was not affected by the constitutional amendment. In its judgment of 26 April 2021, upholding the applicant’s conviction and sentence, the Court of Cassation held that the applicant’s statements had not been related to legislative activities and were made outside the Parliament, and therefore were not covered by non-liability clause.

The authorities pointed out that the applicant has lodged an application with the Constitutional Court and the European Court concerning his current detention that started 20 September 2019 and that the Committee should not put itself in the place of the Court.

(4)   Rule 9.1 submission from the applicant (DH-DD(2021)1082)

The applicant stated that the domestic courts have continued to dismiss his requests to be released. He remains in pre-trial detention for the proceedings before the Ankara 22^nd Assize Court while he is also serving his sentence for the offence under Article 7 § 2 of the Prevention of Terrorism Act. Noting that he has three applications pending before the Constitutional Court,[3] the applicant argued that these applications by nature must be examined urgently. He added that domestic courts including the Constitutional Court failed to comply with the European Court’s judgment. The applicant further claimed that high-ranking State officials continued to target him and his family in their statements.

In their replies (DH-DD(2021)1135), the authorities refuted the applicant’s arguments and reiterated their previous submissions.

General measures

The Committee invited the authorities to provide in their forthcoming action plan information on measures envisaged to strengthen the Turkish judiciary against any interference and ensure its full independence, by drawing on the relevant Council of Europe standards.

Article 5

The authorities provided comprehensive information on the provisions governing pre-trial detention, in particular the need for strong suspicion, recent amendments narrowing down the catalogue offences and reduction of pre-trial detention periods, ex officio judicial review and grounds for conditional release. The Code on Criminal Procedure (CCP), as amended in 2014, requires “strong suspicions based on solid evidence” to place an individual under detention whereas previously “indications to suggest that the person has committed an offence” were sufficient. The Fourth Judicial Package adopted on 8 July 2021 introduced additional safeguards for detention, including a similar requirement for more serious offences listed under Article 100 of the CCP, also referred to as “catalogue crimes”. Concrete evidence justifying a strong suspicion will be required to place someone charged with one of these offences in detention. With Law No. 7188, which entered into force on 17 October 2019, the length of pre-trial detention for serious offences that fall within the jurisdiction of assize courts, excluding terrorism-related crimes, has been reduced to a maximum of one year. Suspects investigated for terrorism-related crimes may be detained for up to two years before an indictment is lodged. For all other offences it is six months.

Article 10

The authorities provided information on the legislative amendments made to Article 7 of the Anti-Terror Law in 2013 and 2019 and the extended appeal mechanism, which the applicant used in respect of the second set of proceedings. As regards the 2016 Constitutional amendment of Article 83 § 2 lifting inviolability, the authorities explained that its applicability was limited and did not affect the substantial essence of parliamentary inviolability. They concluded that there was no need for any general measures under this heading.

Article 3 of Protocol No 1

The authorities provided information on the relevant articles of the Constitution governing the right to stand for elections. They argued that legislative system provides sufficient safeguards for elections. The lifting of parliamentary inviolability was the result of a long-run public debate and the decision was adopted by qualified majority in Parliament. The applicant and other HDP[4] members themselves had asked for the lifting of their inviolability in July 2015. The constitutional amendment therefore could not be qualified as unforeseeable for the applicant. The authorities further claimed that this was an isolated case and that no similar constitutional amendment had been adopted since. It was therefore not possible to take general measures in respect of this violation.

Article 18 in conjunction with Article 5

The authorities provided information on domestic provisions and safeguards concerning the independence of the judiciary, as well as measures envisaged to strengthen it further. The independence of the judiciary is mainly guaranteed by the Constitution, Law No. 6087 on the Council of Judges and Prosecutors (CJP), and Law No. 2802 on Judges and Prosecutors. Judges are independent; no organ, authority, office or individual may give orders or instructions to courts or judges relating to the exercise of judicial power, send them circulars, or make recommendations, suggestions. Attempting to influence judges, experts or witness is a criminal offence.

The Constitutional amendment in 2017 changed the election procedure of the CJP by involving the National Assembly, which now elects three members of the CJP among the members of the Court of Cassation, one member among the members of the Council of State, and three members among academicians and lawyers with specific qualifications laid down in law. This amendment ensured that the structure of the CJP was based on the principle of independence and impartiality.

The authorities reiterated the information on the ongoing work to strengthen further the rule of law, independence of the judiciary and improving impartiality, in particular on the “Eleventh Development Plan (2019-2023), the Judicial Reform Strategy announced by the President in May 2019, the Human Rights Action Plan announced in March 2021 and the procedure for its monitoring. These documents cover numerous reforms on human rights, including restructuring of the provisions governing appointment, transfer, promotion of judges; disciplinary procedures and sanctions concerning judges and prosecutors; training on professional conduct. In addition, the CJP adopted Bangalore Principles of Judicial Conduct and the Budapest Guidelines in 2006 and “Declaration of Turkish Judicial Ethics” in March 2019, which emphasise independence of judges and prosecutors. Similarly, the Court of Cassation adopted the Istanbul Declaration on Transparency in the Judicial Process in 2017.

 

The authorities also referred to the high-level political messages given by the President of the Republic and the Minister of Justice, stressing the importance attached to the independence and impartiality of the judiciary.

The authorities argued that the Court did not indicate a systemic or structural problem in particular with respect to the independence of judiciary and that the violation appeared to be of an isolated nature completely related to the specific facts concerning the application. Furthermore, the Court had not found a violation of Article 6 and that the Committee of Ministers therefore should not expand its supervision beyond the findings of the Court.

The authorities further recalled the information on the right of individual application to the Constitutional Court, various projects and awareness raising activities, the HELP training programme, role of the Justice Academy, consideration of the European Court’s and the Constitutional Court’s judgments in promotion of judges and prosecutors, and publication and dissemination of the judgment.

 

Analysis of the Secretariat

Individual measures

It appears that the applicant continues to serve the sentence imposed in the second proceedings, which will be completed on 3 January 2023, while concurrently being detained on remand in connection with the offences relating to the 6-8 October 2014 events (third set of proceedings joined with first set of proceedings).

In respect of the continuing pre-trial detention, the authorities argue that the events and charges in respect of which it has been ordered differ from those concerning his initial detention in the first proceedings, which was examined by the Court in its judgment. They submit that in accepting the bill of indictment in the third set of proceedings on 7 January 2021, the 22^nd Ankara Assize Court recalled the obligation of member States under Article 46 of the Convention to comply with the European Court’s judgments and Article 90 of the Constitution and held that the European Court’s judgment covered the applicant’s detention between 4 November 2016 and 7 December 2018, whereas the detention in the case before it had begun on 20 September 2019.

At its 1398^th meeting (March 2021) (DH) the Committee took into account the above points and considered that the Court has already examined and rejected the authorities’ arguments (CM/Del/Dec(2021)1398/H46-40).Underlining the Court’s conclusion under Article 46 that the continuation of the applicant’s pre-trial detention, on grounds pertaining to the same factual content, would entail a prolongation of the violation of the applicant’s rights as well as a breach of the obligation of the respondent State to abide by the Court’s judgment, the Committee urged the authorities to ensure the applicant’s immediate release. Underlining, further, the obligation of restitutio in integrum, the Committee called for the negative consequences of the violation to be eliminated without delay, including in respect of the three sets of proceedings against the applicant which were pending at the time of the Court’s examination of the case.

As regards the applicant’s post-conviction imprisonment (second proceedings), the authorities contend first, that the Court in its judgment did not examine the merits of his conviction under Article 7 of the Anti-Terrorism Code, and that therefore no obligation to remove its consequences arises under Article 46 of the Convention.

In this connection it can be recalled, as explained in the Secretariat’s analysis for the Committee’s last examination, that the Court’s reasoning in finding a violation of Article 10 of the Convention rested on three limbs.

One of these limbs was the manner in which the applicant’s parliamentary inviolability was removed. The Court held that the amendment to Article 83 § 2 of the Constitution was “a one-off ad homines amendment, unprecedented in Turkish constitutional tradition”, and that it was unforeseeable for the applicant that he would be deprived of the inviolability he enjoyed while he was a Member of Parliament (§§ 265-270). The Court further found that the aim of the constitutional amendment was to limit the political speech of the members of parliament in question, including the applicant (§ 246).

In addition, in its reasoning under Article 10, the Court criticised the broad content of the legislative provision in question together with quality of the national courts’ decisions ordering the applicant’s pre-trial detention in the first proceedings, since they (1) failed to examine whether the speeches in question were covered by parliamentary non-liability, under Article 83 § 1 of the Constitution, and (2) gave an unforeseeably wide interpretation of the provision.

It is open to interpretation whether the Court’s finding of a violation of Article 10 in this case depended on all three of the above defects or whether each limb of its reasoning was sufficient in itself for the finding of a violation. The Secretariat considers that each of the effects found was in itself sufficient. This view is supported to a certain extent by the recent judgment in the case of Kerestecioğlu Demir v. Turkey (68136/16, 6 September 2021), where the Court found a violation of Article 10 in respect of another HDP MP solely on the basis of the same constitutional amendment (§ 67).

 

At its last examination, the Committee also took this interpretation, and concluded that the obligation to provide the applicant with restitutio in integrum in respect of the violation of Article 10 requires the removal of all the negative consequences for the applicant’s freedom of expression which resulted from the constitutional amendment.

The authorities argue, secondly, that it would in any event have been possible to commence criminal proceedings against the applicant without the constitutional amendment, once he ceased to be an MP on 24 June 2018 and thereby lost inviolability.

In this respect, however, it should be underlined that the first and second set of proceedings were commenced on 4 November 2016 and 16 August 2016 respectively, when the applicant was still an MP. These proceedings could not have been commenced on those dates had the applicant’s parliamentary inviolability not been removed as a direct consequence of the constitutional amendment. It is a matter of speculation whether these proceedings would have in any event been brought after his term ended in 2018. It is also noteworthy in this respect that in the above-mentioned Kerestecioğlu Demir v. Turkey (§ 60) judgment, the Court did not accept a similar argument brought by the Turkish Government.

The authorities’ third argument is that the applicant’s conviction in the second set of proceedings is currently the subject of an appeal before the Constitutional Court, which if successful, would allow the applicant to apply to the European Court. The authorities claim that the Committee has already started a supervision process concerning a case that has not been examined by the European Court.

Under the second paragraph of Article 46, the function of supervising the execution of judgments is entrusted to the Committee of Ministers. Examination of any new, subsequent developments by the Court in order to determine whether they reveal breaches of the Convention does not prevent the Committee from examining whether the principle of restitutio in integrum was respected in respect of the previously identified breaches and their outcome.

As the Committee has previously stressed that the supervision of execution of the Court’s judgments by the respondent States in no way prejudges the Court’s examination of possible complaints arising out of subsequent developments”.[5]

The Committee’s practice is also in line with the Court’s case-law concerning Article 46. In its judgment on Ilgar Mammadov case, the Grand Chamber of the Court underlined that it is the Committee’s role within the Convention system and in particular under Article 46 of the Convention, to assess whether the measures taken are sufficient to put an end to the violation and prevent similar violations from occurring in the future[6].

Finally, it should be emphasised that the respondent State’s obligation under Article 46 § 1 requires it to take execution measures compatible with the conclusions and spirit of the Court’s judgment[7]. This was also underlined by the Court in the present judgment (§ 441). It is relevant in this respect that the Court also criticised the constitutional amendment in its reasoning leading to a violation of Article 18, finding that it targeted opposition politicians. It also criticised the applicant’s return to pre-rial detention in the third proceedings, holding that the authorities had been more interested in “keeping him detained, thereby preventing him from carrying out his political activities” than in investigating the alleged crimes (§ 433). The Court also found under Article 18 that the purposes put forward by the authorities for the applicant’s pre-trial detention were merely cover for an ulterior political purpose, which was a matter of indisputable gravity for democracy (§436).

In the light of these, and other passages in the Court’s judgment, it would appear that, as the Committee has previously concluded, the execution measures compatible with its spirit and conclusions require the applicant to be immediately released from his current detention/imprisonment and restored to the position where he is free to continue with his political activities.

At its last examination of the case, the Committee instructed the Secretariat to prepare a draft interim resolution in the event that the applicant was not released by the present meeting. At the time of finalising the present Notes, the applicant had still not been released, so the Committee may wish to adopt the draft interim resolution proposed. In view of the urgency of the applicant’s situation, the Committee could decide to resume examination at the 1428^th meeting (March 2022) (DH) at the latest.

Furthermore, it appears that the applicant has three complaints pending before the Constitutional Court, lodged on 7 November concerning his current pre-trial detention, on 14 January 2021 concerning the execution of the present judgment, and on 10 May 2021 concerning his conviction in the second set of proceedings. The Committee could express the strong hope that the Constitutional Court concludes its examination of the applicant’s complaints in the shortest possible timeframe and in a manner compatible with the spirit and conclusions of the Court’s judgment.

General measures

In the present case the Court found that the purposes put forward by the authorities for the applicant’s pre-trial detention had merely been a cover for an ulterior motive: namely, that of stifling pluralism and limiting freedom of political debate (§§ 436 and 437). The Court shared the view of the Venice Commission that this one-off unprecedented ad homines amendment had been aimed expressly at specific statements by members of parliament, particularly those of the opposition and that this was a “misuse of the constitutional amendment procedure” (§ 269). It further noted the findings of the Venice Commission on the independence of the judicial system in Turkey, and more specifically those concerning the Council of Judges and Prosecutors (CJP), and indicated that “the tense political climate in Turkey during recent years has created an environment capable of influencing certain decisions by the national courts, especially during the state of emergency, when hundreds of judges were dismissed, and especially in relation to criminal proceedings instituted against dissenters (§ 434).

At its 1406^th meeting the Committee encouraged the authorities, in view of the Court’s findings in particular under Article 18 in conjunction with Article 5, to provide in their forthcoming action plan information on measures envisaged to strengthen the Turkish judiciary against any interference and ensure its full independence, by drawing on the relevant Council of Europe standards. This approach to general measures is in line with the Committee’s practice in other cases with similar violations of Article 18, such as Kavala v. Turkey (CM/Del/Dec(2021)1411/H46-37); Lutsenko v Ukraine (CM/Del/Dec(2020)1377/H46-43); Tymoshenko v Ukraine (CM/Del/Dec(2020)1377/H46-43); and the Mammadli group v. Azerbaijan (CM/Del/Dec(2020)1390/H46-2).

The authorities argue that the Court did not indicate a systemic or structural problem in particular with respect to the independence of judiciary and that the violation appears to be of an isolated nature related to the specific facts concerning the application.

Similar concerns were however already raised in the Kavala judgment of the Court and the information provided by the authorities under general measures tends to repeat previously submitted information in the Kavala case. The reforms referred to in the action plan, in particular adoption of the Eleventh Development Plan and the third Judicial Reform Strategy Document may be noted with interest, but at the same time they fall short of addressing the systemic problems identified by the Court as regards protecting the judiciary from undue influence from the executive branch.

In line with the obligation of the Contracting States under Article 46 of the Convention to promptly, fully and effectively comply with the Court’s judgments, the Committee could therefore reiterate its call upon the authorities to take concrete legislative and other measures to ensure the full independence of the judiciary, in particular from the executive branch, taking inspiration from the relevant Council of Europe standards notably as regards the structural independence of the Council of Judges and Prosecutors.

Another outstanding issue in the present judgment concerns the need to strengthen freedom of political debate. Freedom of expression for members of parliament to represent their electorate requires increased protection in line with the requirements of pluralism, tolerance and broadmindedness.

The Court pointed out in the present judgment that the legal system must offer a remedy by which a member of parliament who has been placed in detention can effectively challenge that measure and have his or her complaints examined on the merits. Judicial authorities must protect the freedom of expression of political opinions by members of the Parliament, applying strictly its possible limits, notably to prevent direct or indirect calls for violence. Given their role, pre-trial detention of members of parliament must be an exceptional measure where less severe measures have been considered and found to be insufficient to safeguard the individual or public interest. For the same reasons, its duration must be as short as possible (§393). In view of the findings of the Court despite the existing Constitutional safeguards, the authorities could be invited to take legislative or other measures that are capable of strengthening freedom of political debate, pluralism, and the freedom of expression of elected representatives, especially of members of the opposition.

As regards the Court’s criticism of the broadness of the content and application of Article 314 of the Criminal Code (§ 337), legislative or other measures appear necessary to reduce the scope of the provision to ensure adequate protection against arbitrary interference by the national authorities.

The more general issue of detention without reasonable suspicion (Article 5 § 1) requires measures to ensure that judicial authorities rely on concrete evidence justifying strong suspicion when placing individuals in detention. It is examined in other cases before the Committee, in particular in conjunction with the right to freedom of expression of journalists under the Nedim Şener group of cases. The Committee could therefore decide to continue examining this issue under the Nedim Şenergroup of cases.

Financing assured: YES