On 20 November 2018, the European Court of Human Rights released its judgment on the pre-trial detention of Selahattin Demirtaş, the former co-chair of the People’s Democratic Party (Halkların Demokratik Partisi / Partiya Demokratȋk a Gelan, HDP) (see here). The Court’s finding of a violation of Article 18 of the European Convention on Human Rights (ECHR) (restrictions on rights), in conjunction with Article 5 (liberty and security of the person), added to the already significant pressure on Turkey to guarantee political pluralism. The judgment also demonstrates the potential of the European (individual) rights system as a tool to challenge counter-democratic practices.
This article will examine the domestic legal and political developments underpinning the Demirtaş case, and the Court’s substantive findings. In addition to the violations found against Turkey, the language used by the Court and the reach of its findings will be of interest to scholars and activists alike. Finally, the Court’s approach to the evidence and the recent action of the Parliamentary Assembly of the Council of Europe (PACE) both emphasise the importance of a networked model of monitoring and enforcement in cases of systemic breaches of human rights.
Facts and Background
Selahattin Demirtaş has been a member of the Turkish Grand National Assembly (Parliament) since 2007, representing various left-wing pro-Kurdish political parties. In 2014, he was elected co-chair of the HDP together with Figen Yüksekdağ. He came third in the presidential election of 10 August 2014, receiving 9.76% of the vote. He ran successfully in the parliamentary elections of 1 November 2015, with his term of office due to end on 24 June 2018; the HDP also passed the 10% threshold to sit in Parliament for the first time. Most recently, he received 8.32% of the vote in the presidential election of 24 June 2018, despite being in prison, and the HDP again passed the 10% threshold.
On 4 November 2016, Mr Demirtaş was arrested and taken into police custody, along with Figen Yüksekdağ and seven other HDP members of Parliament, and brought before the Diyarbakır Second Magistrate’s Court. He was indicted on 11 January 2017 on 28 counts of terrorism-related offences, including: forming or leading an armed terrorist organisation, 15 counts of disseminating terrorist propaganda, and two counts of incitement to public hatred and hostility. The charges were based on various speeches since October 2012 in which Mr Demirtaş had spoken in favour of Kurdish autonomy and self-governance, called on people to join public demonstrations, and argued that “resistance” was a legitimate response to “the fascist policies of the political authorities”. He faces a sentence of between 43 and 142 years’ imprisonment.
Mr Demirtaş’s pre-trial detention had lasted for a period of one year, seven months and 20 days by the time of the 24 June 2018 elections. He complained of unjustified and extended detention in a November 2016 application to the Turkish Constitutional Court. On 21 December 2017, the Constitutional Court declared that his detention pursued a legitimate aim, given the severity of the potential sentence and finding that he was a flight risk, and was proportionate to the public interest; one dissenting judge found a breach of the right to free elections. The criminal proceedings against him are still pending.
Mr Demirtaş submitted an application to the European Court on 20 February 2017 claiming, principally, that his detention violated Article 5 ECHR, freedom of expression (Article 10 ECHR) and free elections (Article 3 of Protocol No. 1, “A3P1”), and disclosed a breach of Article 18 ECHR. The application of the Court’s priority policy explains the relative speed of the proceedings, with the judgment given exactly 21 months from the date of his application to judgment. The Court received third-party interventions from the Council of Europe Commissioner for Human Rights (see here), the Inter-Parliamentary Union, and ARTICLE 19 and Human Rights Watch (see here).
Political Pluralism and Constitutional Reform in Turkey
Mr Demirtaş’s detention follows a long series of prosecutions targeted at pro-Kurdish political parties in Turkey. Throughout the last 30 years, a succession of such parties have been dissolved by order of the Turkish Constitutional Court and reinstituted under a different name, with subsequent ECHR judgments finding violations of the right to freedom of assembly and association (Article 11 ECHR). In its 2010 judgment in the case of the Peoples’ Democracy Party (Halkın Demokrasi Partisi, HADEP and Demir v Turkey, see here), for instance, the Court reminded the Turkish authorities that “there can be no democracy without pluralism” and reiterated that freedom of expression protects not only ideas that are regarded as inoffensive but also “those that offend, shock or disturb” (para. 57). President Erdoğan and the Turkish Government have recently adopted a new strategy to maintain a de facto prohibition on pro-Kurdish political party activity, pursuing individuals rather than seeking party bans leading to adverse European Court judgments bearing the name of political adversaries. For HDP members, this has meant a large number of prosecutions for terrorism offences in connection with public speeches or statements (see here).
The HDP’s success in the parliamentary election of 7 June 2015 saw the Justice and Development Party (Adalet ve Kalkınma Partisi, AKP) lose its majority for the first time since 2002. Further elections followed in November 2015 due to the refusal of opposition parties to enter a collation with the AKP. During both election campaigns, HDP offices and rallies were violently attacked and members were detained by police on suspicion of links to the PKK (see here). On 12 April 2016, the Turkish Parliament adopted a new Provisional Article 20 of the Constitution allowing the lifting of immunity of members of Parliament in response to, among others, “statements of certain deputies constituting emotional and moral support to terrorism”. Although applicable to all political parties and used to lift the immunity of 154 MPs, Provisional Article 20 has been used to strip 55 of the 59 HDP MPs of their parliamentary immunity, including Mr Demirtaş. As of June 2018, 25 HDP MPs had been detained or arrested and nine were in jail for terrorism-related offences (see here).
The doctrine of parliamentary immunity is a guarantee to the institution of Parliament, operating to ensure elected representatives can fulfil their role without fear of harassment or unwarranted interference by the executive or judiciary. As demonstrated by the treatment of the HDP, the significance of parliamentary immunity for opposition and minority groups is not in any way technical or mysterious. On 14 October 2016, the Venice Commission criticised the constitutional amendment as an “ad hoc, ‘one-shot’ and ad homines measure” (i.e. targeted at specific individuals) and “a misuse of the constitutional amendment procedure” (see here).
On 15 February 2017, the then Council of Europe Commissioner for Human Rights, Nils Muižnieks, concluded that the lifting of immunity and prosecution of parliamentarians had deeply restricted democratic debate and sent “an extremely dangerous and chilling message to the entire Turkish population” (see here). The PACE, a political body that oversees the ECHR system, declared in April 2017 (see here) that the lifting of immunity had “seriously undermined the democratic functioning and position of the parliament” and “rendered the [HDP] inoperative.” In his third-party intervention to the European Court dated 2 November 2017 (see here), Mr Muižnieks further commented that the lifting of immunity was “part of a broader pattern of repression against those expressing dissent or criticism of the authorities”.
The timing and purpose of the lifting of parliamentary immunity went to the heart of Mr Demirtaş’s ECHR complaint: that his detention was part of a political strategy to help secure a ‘Yes’ vote in the 16 April 2017 Turkish Constitutional referendum on the transition to a presidential system. The Venice Commission has criticised numerous aspects of the parliamentary procedure and the referendum, including the lack of opposition participation, the ongoing State of Emergency and the lack of a secret ballot (see here). The conspicuous absence of transparency, inclusiveness and media neutrality undermined the legitimacy and credibility of the referendum process. The substance of the proposed amendments also raised concerns regarding basic democratic principles, with the Venice Commission warning that the proposed amendments would “introduce in Turkey a presidential regime which lacks the necessary checks and balances required to safeguard against becoming an authoritarian one.” In the event, the amendments were passed with 51.4% in favour and 48.6% against.
The Demirtaş judgment documents the individual effects of a series of measures targeted at the HDP as part of a campaign against dissenting voices, at a time of State of Emergency rule and of a recognised risk of authoritarianism in Turkey. Mr Demirtaş claimed before the Court that 3,282 people linked to the HDP had been arrested between July 2015 and January 2018, including 15 members of Parliament, 135 local branch co-chairs, and 750 local officials. There are signs of further pressure on the HDP ahead of the forthcoming local elections (see here), to be held on 31 March 2019, including an explicit threat by President Erdoğan to replace any successful HDP-backed candidates with government trustees (see here). The Court’s finding that the detention of Mr Demirtaş disclosed a “stifling of democratic debate” is, therefore, the beginning of a new phase of Court judgments and Council of Europe action on political pluralism and free expression in Turkey.
The Court’s Findings
The Court focused principally on Mr Demirtaş’s claims under the rights to liberty and free elections before examining the Article 18 claim. Whereas the Articles 5 and A3P1 claims were resolved through the application of existing ECHR jurisprudence, the decision on Article 18, particularly the question of whether the pre-trial detention of Mr Demirtaş served a political purpose, also relied heavily on the third-party interventions and the reporting of the Venice Commission and the Commissioner for Human Rights.
Liberty and Security of the Person
The heart of the case concerned the domestic courts’ determination that it was necessary to detain Mr Demirtaş and any alternative measures were insufficient. Whilst a reasonable suspicion can justify an initial detention period, Article 5 ECHR requires something more to justify pre-trial detention thereafter. In the case of Mr Demirtaş, the domestic courts provided various reasons for extending his detention: the suspicion he had committed the offences; the number and nature of the offences; the severity of the potential sentence; the inadequacy of alternatives to detention; and the risks of absconding and of tampering with evidence. He also faced a legal presumption in favour of detention, having been charged with “catalogue offences” under Article 100 (3) of the Code of Criminal Procedure.
The Court emphasised that, even in the case of a legal presumption, “it must be convincingly demonstrated that there are concrete facts warranting a departure from the rule of respect for individual liberty” (para. 190). To the contrary, the Turkish courts had failed to analyse the specifics of Mr Demirtaş’s situation, including the fact that he had long been aware of criminal investigations into his political activities and had not absconded during more than 10 trips abroad since May 2016 (paras. 190-192). The domestic courts had also failed to analyse sufficiently the arguments in favour of his release (para. 193). Accordingly, the Court found a violation of Article 5 (3) ECHR due to lack of sufficient grounds to justify his continued detention.
The Right to Free Elections
The Turkish Government challenged the very application of the right to free elections (A3P1) to Mr Demirtaş, arguing that it does not oblige States to recognise a right to engage in political activity. The Court fully rejected this approach, reminding the Turkish Government that A3P1 guarantees a right to take part in parliamentary elections and, once elected, to sit as a member of Parliament. In this sense, A3P1 is “crucial to establishing and maintaining the foundations of an effective and meaningful democracy governed by the rule of law” (para. 227). In the Court’s view, the domestic courts had also failed to respect his right to “a high level of protection” as an MP and leader of an opposition party (para. 238). Moreover, the Turkish courts had failed to balance the administration of justice with the rights of Mr Demirtaş and the electorate’s interest in free elections (paras. 231 and 238). As a result, the Court’s finding on A3P1 explicitly extends beyond his individual rights:
“The Court concludes that (…) the fact that it was impossible for [Mr Demirtaş] to take part in activities of the National Assembly on account of his pre-trial detention constitutes an unjustified interference with the free expression of the opinion of the people and with the applicant’s right to be elected and to sit in Parliament. It therefore (…) concludes that the measure in question was incompatible with the very essence of the applicant’s right under Article 3 of Protocol No. 1 to be elected and to sit in Parliament and infringed the sovereign power of the electorate that had elected him as a member of Parliament.” (para. 240)
The Court’s language on A3P1 is unusual in explicitly framing an individual violation as an attack on basic democratic principles. Conceiving of the detention of Mr Demirtaş as a breach of the “free expression of the opinion of the people” and “the sovereign power of the electorate” pointedly speaks beyond an individual rights discourse. The Court’s judgment is a biting criticism of the lack of democratic debate in Turkey and hints at a lack of judicial independence, a point addressed directly in the Court’s assessment of whether his detention pursued a political purpose.
Restrictions on Rights
Mr Demirtaş’s lawyers submitted an ambitious claim in arguing that his detention was a direct response to his criticism of the Government and therefore contrary to Article 18 ECHR (restrictions on ECHR rights), in conjunction with Article 5 ECHR. The Court’s awakening on Article 18 had only occurred in May 2004 with the finding of a violation in Gusinskiy v Russia (see here) and the Court had not found an Article 18 violation in any previous Turkish case, including those related to the State of Emergency. Nonetheless, it was argued that Mr Demirtaş’s detention was the part of a “hidden agenda” to silence him and to ensure the shift to a presidential system. In support of this claim, Mr Demirtaş drew to the Court’s attention the tripling of the number of investigation reports regarding HDP members in the six months following a speech by President Erdoğan, in March 2016, advocating the lifting of parliamentary immunity.
The Court had previously recognised in the Merabishvili v Georgia case, in which EHRAC represented the applicant, Ivane Merabishvili, that a restriction on rights may serve more than one purpose. An Article 18 claim will only succeed if the “predominant purpose” is one not prescribed by the ECHR (see here, paras. 303-308). The question for the Court in Demirtaş, therefore, was whether, and according to a “significantly high threshold”, the predominant purpose of his pre-trial detention was to “remove him from the political scene” (paras. 260-261).
The Court’s evidential analysis was crucial to the success of the Article 18 claim. In distinction to its general approach to individual complaints, the Grand Chamber had also established in Merabishvili that an Article 18 assessment can rely on circumstantial evidence, including the drawing of inferences from primary facts corroborated by reports of international observers, NGOs and the media (paras. 309-317). In the present case, the Court recognised that Mr Demirtaş’s complaint “cannot be detached from the general political and social background to the facts of the case” (para. 263). Referring to reports of the Council of Europe Commissioner for Human Rights (see here), the Venice Commission (see here), Amnesty International (see here), and the third-party interventions, the Court remarked that “it is understandable that an objective observer might suspect that the extension of the pre-trial detention of the applicant […] was politically motivated” (para. 264). It found that the extensions to his detention “follow a certain pattern” given the numbers of HDP members detained by police (para. 264). On the basis also of the timing of his detention, at the time of a historically significant constitutional amendment, and the fact that he was one of six candidates detained during the June 2018 presidential election, the Court accepted there was a political purpose to his pre-trial detention (paras. 265-267).
As to the significance of the recognised political purpose, the Court relied on the principle in Merabishvili that a predominant purpose may change over time i.e. a legitimate purpose may become less plausible (para. 269). What tipped the balance against the Turkish Government was that the long-standing investigation into Mr Demirtaş “accelerated” after President Erdogan declared on 28 July 2015, “I do not approve of dissolving political parties. But I say that the deputies of [the HDP] must pay the price. Personally and individually.” The Court commented upon the “tense political climate in Turkey during recent years [that] has created an environment capable of influencing certain decisions by the national courts, especially during the state of emergency” (para. 271). Here the Court stopped short of finding that the judicial authorities had acted in bad faith ab initio. Nonetheless, it found evidence of an ulterior purpose in the present case that revealed a significant disregard for the Convention and posed a threat to “the whole democratic system” (para. 272). The Court found a violation of Article 18 in conjunction with Article 5 and concluded:
“[I]t has been established beyond reasonable doubt that the extensions of the applicant’s detention, especially during two crucial campaigns, namely the referendum and the presidential election, pursued the predominant ulterior purpose of stifling pluralism and limiting freedom of political debate, which is at the very core of the concept of a democratic society.” (para. 273)
The Court’s judgment highlights one aspect of the Turkish Government’s well-documented lack of respect for democratic principles and fundamental human rights. It is also notable for presenting the detention of Mr Demirtaş as part of a set of practices targeted against the HDP. The Court noted that “any continuation” of Mr Demirtaş’s detention would prolong the violations and put Turkey in breach of its Article 46 (1) ECHR obligation to comply with Court judgments (para. 282). Unsurprisingly, the Court declared an “urgent need” to put an end to the violations and called for his release “at the earliest possible date” (para. 283).
The Demirtaş judgment is a legal landmark as the first finding that Turkey has violated Article 18 ECHR. The timing of the judgment is notable given the Grand Chamber’s finding five days earlier of a violation of Article 18 against Russia regarding the political persecution of Aleksey Navalnyy (see here). The Court’s criticism of the individual and broader political effects of Mr Demirtaş’s detention undermines any claim that the Court is currently more concerned with pacifying than challenging the Turkish Government (see here and, in rebuttal, here). It is also a reminder of the conceptual reach of the ECHR and the legal tools available to the Court to address counter-democratic practices. For legal representatives, NGOs and activists working to assist and protect Turkish citizens, particularly HDP-connected persons abroad facing extradition proceedings, the judgment is a powerful advocacy tool.
Another interesting side of the judgment is how the Court’s approach to the evidence and burden of proof regarding Article 18 demonstrates a networked ECHR oversight, with the Court’s finding reliant on the fact-finding and thematic-analyses of, in particular, the Venice Commission and the Commissioner for Human Rights. In the view of the Turkish Government and the sole dissenting (Turkish) Judge Karakaş, the absence of concrete evidence of a “hidden agenda” on the part of the Turkish judiciary should have disposed of the Article 18 claim (para. 6). Indeed, the Court might easily have taken refuge in its other findings and remained silent on the Article 18 claim. What tipped the balance was the sheer weight of concerns expressed in a series of Council of Europe reports on Turkey, together with a domestic political environment from which the Court could justifiably infer a predominant ulterior purpose. The Court’s choice of language, that the political environment was “capable of influencing” the Turkish judiciary (para. 271), was noticeably soft. Nonetheless, this statement alone may prove significant in future cases Turkish cases.
The fact that the domestic proceedings against Mr Demirtaş have intensified since the Court’s judgment will have come as no surprise in Strasbourg. On 30 November 2018, the Ankara 19th Heavy Criminal Court decided to continue his pre-trial detention. On 4 December 2018, in separate proceedings, the Second Chamber of the Istanbul Regional Court of Justice approved a sentence of 4 years and 8 months against Mr Demirtaş for disseminating terrorist propaganda. A new indictment was filed against him on 12 December 2018 (see here). Turkey is already subject to special monitoring by PACE (see here) due to concerns that emergency powers were being used “to silence any critical voices and create a climate of fear (…) jeopardising the foundations of a democratic society.” PACE moved quickly in response to the domestic decisions concerning Mr Demirtaş, requesting a Monitoring Committee Report (see here) in advance of an urgent debate on the “worsening situation of opposition politicians in Turkey” on 24 January 2019.
The Monitoring Committee Report explicitly referred to the situation of Selahattin Demirtaş, Leyla Güven (HDP Deputy and former member of the Council of Europe Congress of Local and Regional Authorities) and other hunger striking prisoners, and Ertuğrul Kürkçü (HDP Deputy and PACE member at the time of lifting of his immunity and prosecution). While it gave a positive diagnosis on the strength of “certain fundamental prerequisites for democracy” in Turkey (para. 9), the Monitoring Committee expressed concern that the Government had:
“increasingly complicated, obstructed or undermined the ability of opposition politicians to exercise their rights and fulfil their democratic roles both inside and outside parliament” (para. 8).
In the resulting Resolution 2260 (see here), the PACE called upon Turkey to take measures to ensure compliance with Council of Europe standards regarding parliamentary immunity, freedom of expression, independence of the judiciary, and electoral law (including the 10% electoral threshold). Further, it called for the release of Leyla Güven, full implementation of the Demirtaş judgment, and the release of MPs and former MPs whose immunity “was stripped in 2016 in violation of Council of Europe standards”. Finally, it urged a substantive review of the 2017 constitutional reform in order to restore an effective separation of powers.
Turkish progress will be reviewed as part of the Monitoring Procedure. As to Mr Demirtaş, the PACE explicitly warned in Resolution 2260 that it will call for Article 46.4 ECHR infringement proceedings (para. 13) against Turkey in the case of non-compliance (see in connection, here and here). The release of Leyla Güven on 25 January, although a goodwill gesture, will not suffice; and she remains on indefinite hunger strike. In a dissenting opinion to the Monitoring Committee report (see here), PACE member Akif Çağatay Kiliç (Turkey) argued: “[t]here is nothing urgent or unfair about the situation of these persons who only would like to use democracy when it suits them, but support violence in every occasion.” This official rhetoric conflating legitimate peaceful pro-Kurdish political activity with terrorism remains at the heart of contemporary Turkish governance and puts Turkey beyond the norms of the Council of Europe. The freedom of Selahattin Demirtaş and other HDP members must be an organisational priority.
Images: Selahattin Demirtaş (HDP (VOA) / Public domain), Figen Yüksekdağ and Selahattin Demirtaş, Yıldız Yazıcıoğlu (VOA) / Public domain), Turkish Grand National Assembly (Umit Bektas / Public domain), European Court of Human Rights (Adrian Grycuk / CC BY-SA 3.0 PL), European Court of Human Rights courtroom (Adrian Grycuk / CC BY-SA 3.0 PL).