MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1514/H46-38

5 December 2024

1514th meeting, 3-5 December 2024 (DH) Human rights   H46-38 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)1178, CM/Del/Dec(2024)1507/H46-36

 

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 found 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)[2] and 1419^th (December 2021)[3] meetings.

On 16 May 2024 the Assize Court delivered its concise judgment and convicted the applicants under various charges. Mr Selahattin Demirtaş and Ms Figen Yüksekdağ Şenoğlu remain under detention after conviction.  

Mr Demirtaş’s complaint about his pre-trial detention has been pending before the Constitutional Court since 7 November 2019 whereas Ms Yüksekdağ Şenoğlu filed her complaint with the Constitutional Court on 8 June 2023. Mr Demirtaş also has an application pending before the European Court.

At its 1507^th meeting (September 2024) (DH), the Committee strongly urged the authorities, once again, to ensure the applicants’ immediate release, for example by exploring alternative measures to detention, until the Constitutional Court or the European Court establishes whether the Assize Court based its judgment on the same factual context as that of the European Court in the present cases, providing a direct and sufficiently strong link between the applicants and the offences they were convicted of. The Committee, furthermore, strongly urged the authorities to ensure that the Constitutional Court completes its examination of the applications introduced by Mr Demirtaş and Ms Yüksekdağ Şenoğlu without further delay and with full regard to the Court’s findings particularly under Article 18 of the Convention. In addition, the Committee invited 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 the assessment on 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.

Taking note of the information provided by the authorities that all applicants in the present group of cases except Mr Demirtaş and Ms Yüksekdağ Şenoğlu were released or acquitted, the Committee lastly encouraged the authorities to continue providing information about the state of proceedings with respect to the remaining applicants in the Yüksekdağ Şenoğlu and Others case.

In their submissions for the present meeting (DH-DD(2024)1178), the authorities reiterated the information summarised in the Notes prepared for 1507^th meeting (September 2024) (DH).[4] Recalling that on
16 May 2024, the Assize Court convicted Mr Selahattin Demirtaş[5] and Ms Figen Yüksekdağ Şenoğlu,[6] they noted that the applicants are no longer in detention on remand but detained as convicted prisoners and argued that this development must be taken into account in line with the Court’s established case-law.

Both applicants lodged their appeals 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.

As regards the other applicants in the case of Yüksekdağ Şenoğlu and Others, the authorities reiterated that Ayhan Bilgen was acquitted of all charges against him, and the others have been released.

General measures

 

At its 1507^th meeting, the Committee decided to resume consideration of the general measures required for the present cases at its DH meeting in March 2025.

Analysis of the Secretariat

Mr Demirtaş and Ms Yüksekdağ Şenoğlu

It is recalled that the Court held in the present judgments concerning the above two applicants that the continuation of their pre-trial detention, on grounds pertaining to the same factual context as considered by the Court, would entail a prolongation of the violation of their 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. The Turkish authorities have submitted to the Committee that the applicants’ continuing pre-trial detention, and now detention following their conviction at first instance, was based on allegations and evidence which were substantially different from those examined by the Court in its judgments. In this context, the Committee of Ministers has repeatedly invited the authorities, first, to take all possible measures to ensure that the Constitutional Court delivered its judgment concerning Mr Demirtaş’ pre-trial detention without further delay, and, at its examinations in June and September 2024, to provide, as soon as possible, detailed information together with the English translation of relevant parts of the Assize Court’s reasoning, in particular the 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 Convention rights by political representatives.

It is, therefore, a matter of deep concern that the Assize Court has still not delivered its reasoned judgment after having pronounced its concise judgment convicting the applicants on 16 May 2024. While some delay in drafting the reasoned judgment could be acceptable in view of the size of the case file, a delay of more than six months cannot be considered reasonable, particularly in view of the requirement under Turkish law that reasoned judgments must be drafted and included in the case file no later than 15 days after delivery of the concise judgment (Article 232/3 of the Code of Criminal Procedure).

In the event that the judgment is still unavailable at the time of the consideration of this case, the Committee could once again repeat its call on the authorities to provide the full judgment, together with an English translation of the relevant parts of the Assize Court’s reasoning, and the authorities’ assessment on it without further delay. The Committee could, moreover, instruct the Secretariat to prepare a draft interim resolution for its consideration at the March DH meeting if these documents are still unavailable by then.

The Committee could also strongly urge the authorities once again to ensure Mr Demirtaş and Ms Yüksekdağ Şenoğlu’s immediate release, for example by exploring alternative measures to detention pending the determination of the applicants’ appeals and applications to the Constitutional Court.

The remaining applicants in the case of Yüksekdağ Şenoğlu and Others

It is recalled that, according to the information submitted by the authorities, Mr Ayhan Bilgen has been acquitted which could be welcomed by the Committee. Furthermore, it is positive that the other 11 applicants in the Yüksekdağ Şenoğlu and others case appear still to be at liberty.

These applicants are being tried in different proceedings to those against Mr Demirtaş and Ms Yüksekdağ Şenoğlu. No submissions concerning new evidence against them have been made, and there is nothing to suggest that the allegations and evidence against them have substantially changed from that examined by the European Court. It follows, in view of the Court’s findings under Article 18 in conjunction with Article 5 that their pre-trial detention was not supported by evidence showing a reasonable suspicion of criminal wrongdoing and pursued an ulterior purpose, and the Committee’s well-established practice in such cases[7], the principle of restitutio in integrum in respect of these applicants requires them to be acquitted.

The authorities could be invited to provide information about the state of proceedings with respect to these applicants.

Financing assured: YES