MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1483/H46-36

7 December 2023

1483rd meeting, 5-7 December 2023 (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(2023)1248, CM/ResDH(2021)428, CM/ResDH(2023)36, CM/Del/Dec(2023)1475/H46-38

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, a pro-Kurdish opposition party).

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 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, 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 of the parliamentary inviolability by the Constitutional amendment of 20 May 2016 of the applicants, 13 HDP Members of Parliament, including the other HDP co-leader at the material time, Figen Yüksekdağ Şenoğlu. 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 (§ 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 lack of access to the investigation file (Article 5 § 4).[1] 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.

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.

At its 1475^th meeting (September 2023) (DH), the Committee expressed its deepest regret that the applicants Mr Demirtaş and Ms Yüksekdağ Şenoğlu remain in detention despite the Court’s findings and the Committee’s numerous decisions in the Demirtaş case and two decisions in the Yüksekdağ Şenoğlu case. It further expressed utmost concern that the applicants’ continuing pre-trial detention reinforce the conclusion that the national authorities, including the courts, fail to take into account the European Court’s findings and the Committee’s decisions based on the obligation of restitutio in integrum under Article 46 of the Convention. The Committee 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 he initiated before the Constitutional Court. Affirming its readiness to ensure the implementation of the judgment, the Committee invited 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.

1.         Selahattin Demirtaş (No. 2) case

The applicant continues to be held in pretrial detention based on what the authorities state to be new evidence. Criminal proceedings against him are pending before the 22^nd Ankara Assize Court. His complaint about his current pre-trial detention has been pending before the Constitutional Court since 7 November 2019.

In their most recent submission (DH-DD(2023)1248), the authorities mainly reiterated their previous arguments, in particular that the applicant’s current detention was not the subject-matter of the European Court’s judgment.

In prolonging the applicant’s detention at various hearings, the trial court had considered that Mr Demirtas’s current detention was based on charges, facts and evidence other than those that had been examined by the European Court and therefore fell outside the scope of the present judgment. The new evidence consisted of digital material and new witness statements, which the Assize Court found to be consistent and to support a strong suspicion that the “6-8 October 2014” events had been planned in advance by the PKK terrorist organisation.

The authorities recalled that Mr Demirtas’s complaints concerning his current detention are pending before the European Court and before the Constitutional Court, the outcome of which are of crucial importance and that the Committee should await the outcome of these proceedings.

Finally, the public prosecutor submitted his final opinion on the merits on 14 April 2023 and the trial court started to take the final statements of the defendants during continuous hearings as of 3 July 2023. At the time of the preparation of the present notes, the last examination of the applicant’s detention had taken place on 12 October 2023 and the Assize Court continued to hold hearings.

2.         Yüksekdağ Şenoğlu and Others case

Twelve of the 13 applicants in this case have been released; only Ms Yüksekdağ Şenoğlu continues to be detained. She is a co-accused in the same proceedings as Mr Demirtaş.

The authorities referred to two main sets of criminal proceedings in respect of this applicant. They argued that her detention began on 4 November 2016, the date of her initial arrest and, after several interruptions on account of her convictions in other criminal proceedings, ended on 22 November 2022 when the 22^nd Ankara Assize Court decided to release the applicant in respect of her detention concerning the initial charges. According to the authorities, her current detention, which started on 20 September 2019, concerns different charges with respect to the events of 6-8 October 2014 and thus falls outside the scope of the execution of the judgment.

On 10 May 2023, the 22^nd Ankara Assize Court reviewed the applicant’s detention. It referred to § 518 of the judgment where the Court summarised the Government's submissions regarding the evidence in the case file, and observed that the applicant's current detention, which had started on 20 September 2019, had been based on new evidence, in particular five new witness statements, that had not been examined by the European Court. The Assize Court therefore prolonged the applicant’s detention.

Rule 9.2 joint submissions from the Turkey Human Rights Litigation Support Project, Human Rights Watch, the International Commission of Jurists, and the International Federation for Human Rights
(DH-DD(2023)1326-rev)

In their joint submission, the NGOs argue that facts described in the Court’s judgment and facts of the criminal proceedings pending against Ms Yüksekdağ Şenoğlu are identical or similar, and therefore that her continuing detention falls within the scope of the Court’s judgment. They stress that the criminal proceedings against her continue, despite the Court’s findings as regards the unlawfulness of the 2016 Constitutional amendment which led to the lifting of the applicant’s parliamentary immunity and subsequent criminal proceedings against her. They argue that the domestic court used identical language in deciding to prolong the applicant’s detention and aimed to circumvent the obligation to implement the judgment by relying on witness statements. Furthermore, the trial court had still not made an assessment whether Ms Yüksekdağ Şenoğlu’s statements had been protected by her parliamentary non-liability and the prosecution did not make any reference to the Court’s judgment in their final submissions of 14 April 2023, maintaining that the speeches used as evidence were different from those made in the Parliament. Lastly the NGOs refer to other criminal proceedings in which the applicant was convicted for her political statements made before and after the Constitutional amendment and argue that the Court’s findings apply to any prosecution or conviction for her speeches delivered while she was a parliamentarian or started after her immunity had been unlawfully lifted. They maintain that the ongoing detention and/or prosecutions against both Selahattin Demirtaş and Figen Yüksekdağ Şenoğlu during the 2023 parliamentary and presidential elections continue to serve the same ulterior purpose of stifling pluralism and limiting freedom of political debate. They further stress the need to secure the immediate release of both applicants in view of the upcoming local elections in March 2024.

In their reply, the authorities referred in particular to the Assize Court’s assessment that the applicant’s detention falls outside the scope of the Court’s judgment and is based on new evidence which has not been examined by the Court.

They added that the applicant lodged an individual application to the Constitutional Court on 8 June 2023, arguing that her right to personal liberty and security, freedom of expression, right to engage in political activities and right to a fair trial had been violated due to the continuation of her detention despite the European Court’s judgment. As regards the prosecution’s final opinions in the context of the criminal proceedings against the applicant, the authorities noted that the public prosecutor makes his own legal analysis and submits his opinions accordingly. The trial court will independently and impartially examine all the evidence in the case file and render its decision. The authorities did not wish to comment on the other issues mentioned in the NGO submission which they considered were of a speculative nature and irrelevant to the supervision of the present case.

Analysis of the Secretariat

At its 1475^th meeting, the Committee decided to resume consideration of the general measures required for the Selahattin Demirtaş (No. 2) group at its DH meeting in March 2024. The following analysis therefore focuses on the urgent individual measures.

It is a matter of deepest regret that, despite the two interim resolutions adopted at its December 2021 and March 2023 (DH) meetings in the Demirtaş case, and the Committee’s previous calls in respect of both Mr Demirtaş and Ms Yüksekdağ Şenoğlu, there has been no progress towards their release. 

1.            Selahattin Demirtaş (No. 2) case

During the Committee’s 1428^th meeting in March 2022 (DH), the authorities referred to new evidence against Mr Demirtaş, which, according to the trial court, had not been examined by the European Court. During the hearing on 30 December 2022 and the following 11 reviews of detention conducted between 7 February and 12 October 2023, the trial court contended that this evidence showed that the applicant had been in contact with PKK leaders based in Iraq and Syria and acted on their instructions to incite the violent uprisings in October 2014 as part of a deliberate policy of “serhildan”. It underlined that the European Court considered the announcements made by the applicant or the HDP, of which he was the co-chair, in terms of protected freedom of expression, whereas the new evidence revealed the contextual background and the deliberate intention to provoke violent uprising. In its subsequent hearings, the trial court reiterated that the new evidence clearly demonstrated that the current detention of Mr Demirtaş was related to different criminal charges, factual allegations and evidence than examined by the European Court.

In view of this detailed argument by the authorities, the Committee considered that further information on this issue was needed before it could make its decisive assessment of the individual measures required to remedy the applicant’s current situation. In that regard, it has recalled that the applicant’s current detention is the subject of his complaint which has been pending before the Constitutional Court since 7 November 2019, which could elucidate the situation. The Committee thus first encouraged, then strongly urged, the authorities to take all possible steps to ensure that the Constitutional Court makes its assessment in the shortest possible time. At its March 2023 DH meeting, it further adopted an interim resolution (CM/ResDH(2023)36) exhorting the authorities to take action in this regard. The Constitutional Court had still not delivered its decision at the time of the preparations of the present Notes.

It is recalled that the applicant’s complaint concerns a violation of the right to liberty, which is of fundamental importance for securing the right of individuals in a democracy to be free from arbitrary detention and protected by both the Convention and the Turkish Constitution. According to the authorities’ submissions in other cases, the Constitutional Court has a policy to examine the complaints regarding allegations of unlawful detention or excessive length of detention with priority.[2] The absence of any decision by the Constitutional Court for more than four years since the applicant lodged his complaint is deplorable and calls for explanation, in particular bearing in mind the Court’s finding that the applicant’s detention pursued the ulterior purpose of stifling pluralism and limiting freedom of political debate.

2.         Yüksekdağ Şenoğlu and Others case

The authorities presented two main arguments referring to the Ankara Assize Court’s assessment on the detention of Ms Yüksekdağ Şenoğlu.

They firstly claimed that Ms Yüksekdağ Şenoğlu’s current period of detention falls outside the scope of the execution of the European Court’s judgment (see above – status of execution). They explain that the applicant was placed under detention for a first set of proceedings on 4 November 2016 on charges of incitement to commit crime and membership of a terrorist organisation. She was released of these charges on 22 November 2022. In the meantime she had been placed under detention for a second set of proceedings on 20 September 2019 for the offence of undermining the unity and territorial integrity of the State. On 24 February 2021 the two proceedings were merged in view of the factual and legal links between them, and they are pending. The authorities point out the domestic court’s ruling that the European Court in its judgment relied only on the evidence with respect to the first set of proceedings and did not examine the second set of proceedings (see above – status of execution; the summary of the government’s evidence is set out in § 518 of the judgment, and the Court’s findings in §§ 541-546).

It is observed that the present judgment was delivered on 8 November 2022, long after the two proceedings were joined. Furthermore, the European Court’s judgment does not differentiate between the different proceedings against Ms Yüksekdağ Şenoğlu. Instead, it examined her detention on the various charges between 4 November 2016 and 24 February 2021 as a whole. It reached the conclusion that the totality of the charges against her, and the other applicants, were essentially based on facts that could not reasonably be regarded as criminal conduct under domestic law and also primarily concerned their exercise of rights protected under the Convention (see §§ 10, 38 and 545). Therefore, Ms Yüksekdağ Şenoğlu’s current period of detention was found by the Court to be in violation of the Convention and thus falls within the scope of the execution of the judgment.

The authorities secondly noted that the Ankara Assize Court, during its detention review on 10 May 2023, also referred to five witness statements what it considered to be new evidence, which was not examined by the European Court. Nevertheless, the information on the ruling of the Assize Court is not sufficient and does not set out the evidence in detail. The Committee could therefore request 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.  In this connection it is noteworthy that Ms Yüksekdağ Şenoğlu also has an application pending before the Constitutional Court claiming that her right to liberty and security, freedom of expression, right to engage in political activities and right to a fair trial has been violated due to the continuation of her detention despite the European Court’s present judgment.

 

Conclusion as regards the urgent individual measures in respect of both applicants

At the time of drafting the present Notes, the trial proceedings concerning both applicants continue in the Ankara Assize Court. Against this background, it is recalled that all authorities, including the judiciary, have a shared responsibility under Article 46 of the Convention to comply with the judgments of the Court. Furthermore Article 90 of the Turkish Constitution 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.

Bearing in mind the very serious nature of the Court’s findings in both judgments, including the findings under Article 46 that the continued pre-trial detention of the applicants would entail prolongations of the violations of Article 5 and Article 18 in conjunction with that provision, the Committee could strongly urge the 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.

The Committee could in addition deplore the length of time it is taking the Constitutional Court to decide on Mr Demirtaş’s application. It could also exhort 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.

The Committee could further reiterate its 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.

The Committee could lastly reaffirm its readiness to ensure the implementation of the two judgments and decide to reconsider this matter at its 1492^nd meeting (March 2024) (DH), in the event that the applicants have not been released by then.

Financing assured: YES