Selahattin Demirtaş is a Kurdish politician, author and former human rights lawyer who has been imprisoned since 2016. He is currently held in Edirne F-Type Prison in western Turkey more than 1500 kilometres away from his family.
Demirtaş served as a member of parliament (MP) in Turkey’s Grand National Assembly from 2007- 2018 for the Peoples’ Democratic Party (HDP), a pro-Kurdish rights opposition party for which he also served as co-chair. He was also a candidate for president in the 10 August 2014 and 24 June 2018 elections, in which he received 9.76% and 8.32% of the votes respectively, the second time from his jail cell.
Before his arrest and detention, Demirtaş lived with his wife Başak, their two daughters and his family in Diyarbakır, in the southeast of Turkey. Since he was first detained, they have visited him in prison almost every week by travelling more than 15 hours for a one-hour visit.
- Demirtaş is currently held in pre-trial detentionThe Committee of Ministers in its 9-11 March 2021 meeting stated that “while taking note of the authorities’ submissions that the applicant’s current detention falls outside the scope of the Grand Chamber judgment in which the Court examined the applicant’s detention between 4 November 2016 and 7 December 2018 and also that the events and charges for his current detention differ from those concerning his initial detention, considered that these arguments have been already examined and rejected by the Court;”http://hudoc.exec.coe.int/ENG?i=CM/Del/Dec(2021)1398/H46-40E in the scope of the main ongoing case against him and convicted for terrorist propaganda in another case, serving a 4 years 8 months prison sentence.The Committee of Ministers in its meeting on 9-11 March 2021 underlined that “the obligation of restitutio in integrum calls for the negative consequences of the violation to be eliminated without delay, including as regards the two sets of proceedings pending before the Ankara Assize Court (concerning the thirty-four investigation reports and the events of 6-8 October 2014) and the appeal proceedings pending before the İstanbul Assize Court (against the applicant’s conviction for disseminating propaganda in favour of a terrorist organisation during a meeting held in March 2013);”http://hudoc.exec.coe.int/ENG?i=CM/Del/Dec(2021)1398/H46-40E Despite the landmark judgment issued by the European Court of Human Rights Grand Chamber on 22 December 2020, requiring his immediate release and the Committee of Ministers’ decisions on 11 March 2021, 16 September 2021, 2 December 2021 and 9 March 2022; Selahattin Demirtaş remains in prison, and the Turkish authorities continue to defy the Court’s judgment by failing to comply with it, and to ensure restitutio in integrum that all negative consequences of the violation be eliminated by Turkey without delay including in relation to the proceedings which he was convicted for terrorist propaganda.
The case of Selahattin Demirtaş
The case concerns the arrest, pre-trial detention, conviction and criminal proceedings against Selahattin Demirtaş.
In October 2014, violent protests took place in 36 provinces in eastern Turkey (“6-8 October events” or “Kobane protests”), followed by further violence in 2015 in the wake of the breakdown of negotiations aimed at resolving the “solution process”, the process initiated in 2012-13 for finding a peaceful solution to the conflict. According to the figures mentioned in the Constitutional Court’s judgment of 21 December 2017 (no. 2016/25189) on an individual application by Selahattin Demirtaş, the violence on 6 and 8 October 2014 caused the death of fifty people and injured a further 772, including 331 members of the security forces. No fewer than 1,881 vehicles and 2,558 buildings, including hospitals and schools, suffered damage. In the course of the subsequent criminal investigations by the competent prosecuting authorities, 4,291 people were arrested and 1,105 of them were placed in pre-trial detention (see paragraph 30 of the Constitutional Court’s judgment). According to the public prosecutors, the acts of violence had been prompted by calls posted on the HDP Twitter account.On 6 October 2014 the following three tweets were posted on the official HDP Twitter account, @HDPgenelmerkezi: – “Urgent call to our people! Urgent call to our people from the HDP central executive board, currently in session! The situation in Kobani is extremely dangerous. We urge our people to join and support those protesting in the streets against Daesh attacks and the AKP [Justice and Development Party] government’s embargo over Kobani.” (“Halklarımıza acil çağrı! Şuanda toplantı halinde olan HDP MYK’dan halklarımıza acil çağrı! Kobane’de duruş son derece kritiktir. IŞİD saldırılarını ve AKP iktidarının Kobané’ye ambargo tutumunu protesto etmek üzere halklarımızı sokağa çıkmaya ve sokağa çıkmış olanlara destek vermeye çağırıyoruz.”) – “We call upon all our people, from 7 to 70, to [go out into] the streets, to [occupy] the streets and to take action against the attempted massacre in Kobani.” (“Kobané’de yaşanan katliam girişimine karşı 7 den 70 e bütün halklarımızı sokağa, alan tutmaya ve harekete geçmeye çağırıyoruz.”) – “From now on, everywhere is Kobani. We call for permanent resistance until the end of the siege and brutal aggression in Kobani.” (“Bundan böyle her yer Kobane’dir. Kobane’deki kuşatma ve vahşi saldırganlık son bulana kadar süresiz direnişe çağırıyoruz.”)
On 7 June 2015, Turkey held a general election in which the HDP obtained 13.2% of the vote and were accordingly entitled to 80 seats in Parliament, and the ruling AKP party lost its parliamentary majority. The debate over parliamentary immunity began shortly after this election and continued after the AKP regained its parliamentary majority in a snap election on 1 November 2015 and in which the HDP obtained 59 seats. https://www.article19.org/wp-content/uploads/2018/02/171109-Demirtas-submissions-Nov-17.pdf Selahattin Demirtaş, who was co-chair of the HDP, was re-elected as a member of the National Assembly in November 2015 for a four-year term.
In various speeches in 2015 and 2016 President Erdoğan vowed that HDP members of parliament should “pay the price” for recent deadly events for which he held them responsible. While serving parliamentarians usually enjoy a high level of immunity from prosecution for political activities undertaken while in office, the background to the arrest and detention of the HDP deputies lies in a controversial temporary constitutional amendment and parliamentary vote in May 2016 which was most clearly directed against the political party and lifted their parliamentary immunity.
On 20 May 2016, following a constitutional amendment on the subject of parliamentary immunity, 154 members of parliament (including 55 from the HDP) had their immunity lifted. Fifteen opposition members of parliament (including 14 from the HDP) were placed in pre-trial detention. Selahattin Demirtaş was arrested in November 2016 on suspicion of leading an illegal organisation and making statements encouraging terrorism. He has been imprisoned since then. The Council of Europe’s Venice Commission, which advises on constitutional matters, issued an October 2016 opinion strongly criticising the measure and urging the full restoration of the deputies’ parliamentary inviolability. Human Rights Watch (“HRW”) has analysed the evidence in 11 of the indictments, the lifting of the immunity as part of a crackdown against the HDP in detail. In November 2017, ARTICLE 19 and HRW submitted a third party intervention to the case before the European Court of Human Rights (“ECtHR” or “Court” or “European Court”).
Demirtaş was placed in pre-trial detention on 4 November 2016 along with several HDP MPs and has been tried before Ankara 19th Assize Court on several counts of terrorism-related offences, including forming or leading an armed terrorist organisation, disseminating terrorist propaganda and incitement to public hatred and hostility. The charges against him are based on the political speeches he made in his capacity as an HDP MP and co-chair on the Kurdish issue and his identification of the Government’s problematic policies in relation to Kurds.
On 20 December 2020, the ECtHR Grand Chamber issued a landmark judgment calling for Demirtaş’s immediate release, finding that Turkey had violated rights under Articles 5.1 and 5.3 (right to liberty), Article 10 (right to freedom of expression), Article 3 Protocol 1 (the right to free and fair elections), and Article 18 (limitation on use of restrictions on rights) taken together with Article 5 of the European Convention on Human Rights (“the Convention”). The Court requested the Government to “take all necessary measures to secure the immediate release of” Demirtaş and stated that the continuation of his pre-trial detention would entail a prolongation of the violations, as well as breaching the obligation on Turkey to abide by the European Court’s judgment in accordance with Article 46(1) of the Convention (paragraph 442). In our joint Rule 9.2 submission with Human Rights Watch, the International Commission of Jurists, the International Federation for Human Rights, and the Turkey Human Rights Litigation Support Project we highlighted the key findings of violations relevant to this submission on individual measures in detail.
In a complicated sequence of events, described below, the Turkish government did not release Demirtaş from detention as the European Court’s ruling required. Instead, in an effort to circumvent the ECtHR judgments, the authorities first expedited a conviction against him for a 2013 speech he had given and detained him again on new charges and later detained him once more on another new indictment, which is based on the same set of facts and incidents that the Grand Chamber already found to constitute insufficient grounds for his detention.
First set of proceedings (Trial A):
Selahattin Demirtaş was first placed in detention on 4 November 2016 within the scope of an investigation concerning membership of an armed terrorist organisation (Article 314 (1) of the Criminal Code) and public incitement to commit an offence (Article 214 (1) of the Criminal Code). On 11 January 2017, the public prosecutor filed a bill of indictment with the Diyarbakır Assize Court in respect of Demirtaş, running to 501 pages. Demirtaş was charged with the following offences:
- Article 314(1) of the Criminal Code “forming or leading an armed terrorist organisation”
- Article 7(2) of the Prevention of Terrorism Act “disseminating propaganda in favour of a terrorist organisation” (fifteen counts)
- Article 214(1) of the Criminal Code “public incitement to commit an offence”
- Article 215(1) of the Criminal Code “praising crime and criminals” (four counts)
- Article 216(1) of the Criminal Code “public incitement to hatred and hostility”
- Article 217(1) of the Criminal Code “incitement to disobey the law”
- Article 28(1) of the Meetings and Demonstrations Act (Law no. 2911) “organising and participating in unlawful meetings and demonstrations” (three counts)
- Article 32(1) of Law no. 2911 “not complying with orders by the security forces for the dispersal of an unlawful demonstration”
The public prosecutor sought a sentence of between 43 and 142-years’ imprisonment for Demirtaş. The case was heard before the Ankara 19th Assize Court from 2017 until 25 May 2021 when the court gave a decision of joinder to the effect that case files before the Ankara 19th and 22nd Assize Courts (the third set of proceedings) are now being heard by the Ankara 22nd Assize Court jointly. As a result, the case before the Ankara 19th Assize Court was closed.
Second set of proceedings (Trial B):
On 16 August 2016, the Istanbul public prosecutor’s office opened a criminal investigation against Demirtaş, who was accused of disseminating propaganda in favour of a terrorist organisation, on account of a speech he had given at a rally in Istanbul on 17 March 2013:
- Article 7(2) of the Prevention of Terrorism Act “disseminating propaganda in favour of a terrorist organisation”
On 7 September 2018, Demirtaş was given a 4-year 8-month prison sentence by the Istanbul 26th Assize Court on this case, which was upheld by the Regional Court of Appeal on 4 December 2018. Two years after the judgment of the Regional Court of Appeal, the Court of Cassation examined the conviction on 26 April 2021 and upheld the 4-year 8-month prison sentence, meaning that his conviction became final on that date.
The Turkish Government has been continuously using this case as the basis for its refusal to release Mr. Demirtaş, when the pressure increases from the ECtHR or the CM.See the joint Rule 9.2 submission: http://hudoc.exec.coe.int/ENG?i=DH-DD(2021)759E
Third set of proceedings (Trial C):
On 30 December 2020, a bill of indictment concerning 108 people, including Demirtaş, was filed by the Ankara public prosecutor purportedly concerning the events of 6-8 October 2014. The 3,530-page indictment was approved by the Ankara 22nd Assize Court on 7 January 2021. In the indictment, Demirtaş was charged with 30 offences which include:
- Article 302 of the Criminal Code “undermining the unity and territorial integrity of the State”
- Article 82 of the Criminal Code “homicide” (37 times)
- Article 82, Article 35(1) of the Criminal Code “attempted murder” (31 times)
- Article 149 of the Criminal Code “aggravated robbery” (24 times)
- Article 151(1) of the Criminal Code “damage to property” (1,750 times)
- Article 152(1)(a) of the Criminal Code “damage to property which belongs to a public institution or corporation, or which is designated for use for public service or in a place reserved for the benefit of the public” (1,060 times)
In the indictment Demirtaş was charged with being responsible for all offences allegedly committed during the series of protests that took place from 6-8 October 2014 in different cities across Turkey, on the basis that through his political statements he had organised those protests. Based on this, the prosecutor charged Demirtaş with any offence allegedly committed in the course of events of 6 to 8 October 2014, arguing that Demirtaş was a leading member of the PKK (Kurdistan Workers’ Party)/KCK (Kurdistan Communities Union) and should be held responsible for any offence committed by the organisation.
The case (file no. 2021/6), which consists of 324 folders of evidence and annexes and names 2,676 complainants and victims as well as 37 persons who had been allegedly killed during the events of 6-8 October 2014, is ongoing before the Ankara 22nd Assize Court.
Events preceding the detention of Demirtaş
Members of the armed terrorist organisation ISIS (Islamic State of Iraq and the Levant) launch an offensive on the Syrian town of Kobani (Ayn al-Arab in Arabic), 15 km from the Turkish border town of Suruç.
Violent protests took place in 36 provinces in eastern Turkey (“6-8 October events”). HDP issues calls for solidarity with the people of Kobane against ISIS.
General elections are held in Turkey.
HDP becomes the third largest parliamentary group, receiving 13.2% of votes, while the ruling party AKP loses their parliamentary majority for the first time since 2002.
The peace process ends with escalating conflict in the southeast between the Turkish military and PKK affiliates.
On 24-28 July, President Erdogan gives the following statement: “I do not approve of dissolving political parties. But I say that the leaders of that party [the HDP] must pay the price. Personally, and individually.”
Following the failure of negotiations aimed at forming a coalition government, early elections are held.
The HDP wins 10.76% of the vote. The AKP wins the election and regains its majority in the National Assembly.
President Erdoğan repeats his call for the lifting of parliamentary immunity for HDP MPs arguing their alleged links to the PKK, which is designated as a terrorist organisation by Turkey, the United States, the EU, Japan, Australia, and other countries.
The parliament approves a temporary constitutional amendment lifting the parliamentary immunity of 154 MPs who have ongoing criminal investigation files against them, which includes 55 of the 59 HDP members.https://www.hrw.org/news/2017/03/20/turkey-crackdown-kurdish-opposition
The Venice Commission later determined this temporary and one-time constitutional amendment was made by abusing the constitutional amendment procedure and violated the principle of equality. The Commission expressed the opinion that “the system of parliamentary immunity in Turkey should not be weakened, but reinforced, in particular in order to ensure the freedom of speech of Members of Parliament.”https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2016)027-e
First set of proceedings and Demirtaş’s pre-trial detention
Demirtaş is arrested along with 11 other HDP MPs.
He is placed in pre-trial detention for membership of an armed terrorist organisation (Article 314(1) of the Criminal Code) and public incitement to commit an offence (Article 214(1) of the Criminal Code).
Demirtaş files an application challenging his arrest and detention to the Constitutional Court.
Demirtaş argues that his detention is unlawful, as it relates to political speech and freedom of expression, and that he has been denied access to files relevant to the case.
(Appl. no: 2016/25189)
The public prosecutor files an indictment with the Diyarbakır Assize Court in respect of Demirtaş and seeks a sentence of between 43 and 142-years’ imprisonment.
In a 501-page indictment, Demirtaş is charged with forming or leading an armed terrorist organisation (Article 314 (1) of the Criminal Code), disseminating propaganda in favour of a terrorist organisation (fifteen counts – Article 7 (2) of the Prevention of Terrorism Act), public incitement to commit an offence (Article 214 (1) of the Criminal Code), praising crime and criminals (four counts – Article 215 (1) of the Criminal Code), public incitement to hatred and hostility (two counts – Article 216 (1) of the Criminal Code), incitement to disobey the law (Article 217 (1) of the Criminal Code), organising and participating in unlawful meetings and demonstrations (three counts – Article 28 (1) of the Meetings and Demonstrations Act (Law no. 2911)), and not complying with orders by the security forces for the dispersal of an unlawful demonstration (Article 32 (1) of Law no. 2911).
Demirtaş files an application to the ECtHR arguing that his pre-trial detention breaches Articles 5, 10 and 18 of the European Convention and Article 3 of Protocol No. 1 of the Convention.
At the request of the Ministry of Justice, on public-safety grounds, the Court of Cassation transfers the case to the Ankara Assize Court.
Demirtaş files a second application with the Constitutional Court challenging his pre-trial detention, arguing it has exceeded the reasonable time without giving relevant and adequate reasoning.
(Appl. No: 2017/38610)
The first hearing of the case takes place at the Ankara 19th Assize Court.
The Constitutional Court delivers its judgment
concerning his pre-trial detention dated 4 November 2016.
The Court finds the individual application lodged on behalf of Demirtaş manifestly ill-founded and dismisses the application by the majority vote. (Appl. no: 2016/25189)
Elections are held in Turkey.
Demirtaş runs as a candidate for President from jail and receives 8.32% of votes.
The ECtHR judgment and reactions by Turkey’s President and Senior Officials
The European Court delivers its judgment in the case of Demirtaş v. Turkey (no. 2) (application no. 14305/17) finding a violation of Article 5 § 3 (right to be brought promptly before a judge) of the Convention, a violation of Article 3 of Protocol No. 1 (right to free elections); a violation of Article 18 (limitation on use of restrictions on rights) in conjunction with Article 5 § 3.
Demonstrating the importance of the case, the Court makes the rare ruling that there had been a violation of Article 18 of the European Convention, meaning that the extension of Demirtaş’s detention had been pursued for ulterior purposes and as such was an abuse of power. This was the first time the Court found such a violation in relation to Turkey.
The Court finds that “it had been established beyond reasonable doubt that the extensions of Mr. Demirtaş’ detention, especially during two crucial campaigns, the referendum and the presidential election, had pursued the predominant ulterior purpose of stifling pluralism and limiting freedom of political debate: the very core of the concept of a democratic society.” Furthermore, under Article 46 (binding force and execution of judgments), the Court holds that Turkey was to take all necessary measures to put an end to Demirtaş’s pre- trial detention at the earliest possible date.
President Erdoğan says in response to the ECtHR judgment: “This doesn’t bind us. We will make a counter move and finish the job.” A day later, the president makes a second speech saying: “Where are you, European Court? The name for this isn’t supporting a quest for freedom, it’s worshiping terrorism, love of a terrorist.”
The Ankara 19th Assize Court hearing the case on which the ECtHR ruling was made, ignores the European Court ruling and does not release Demirtaş, contending that the ruling was not final.
The Turkish authorities find another way to bypass the ECtHR judgment when a local regional appeal court expedites a conviction against Demirtaş for a speech he gave in 2013.
His sentence to 4 years and 8 months in prison by the Istanbul 26th Assize Court for terrorist propaganda under the Article 7(2) of the Turkish Anti-Terrorism Law is upheld and he becomes a convicted prisoner serving a prison sentence, removing the possibility that he will be released from detention. The confirmed sentence is also unusually high compared with other sentences Turkish courts have imposed for similar propaganda convictions.
Both the Turkish government and Demirtaş contest the ECtHR’s November 2018 judgment by seeking a review of the case by the ECtHR Grand Chamber.
From this date until a few days before the Grand Chamber’s hearing in September 2019, the Ankara Assize Court rejects all requests to release Demirtaş. The Turkish government contends that as there is no final judgment until the Grand Chamber issues its judgment, there is no obligation to release Demirtaş at that time.
In a flurry of activity just two weeks before the ECtHR Grand Chamber hearing, the Ankara Assize Court, which previously rejected 69 requests for release, orders Demirtaş’s release from detention for charges in Trial A.
However he remains in prison as a result of his conviction on 4 December 2018 in Trial B.
Demirtaş files an application at Istanbul Assize Court requesting that time served be deducted from his conviction term in Trial B, so that he can be eligible for parole.
The ECtHR Grand Chamber hearing is held.
The Istanbul 26th Assize Court rules that time served should be deducted from Demirtaş’s final sentence in Trial B.
As a result, Demirtaş is eligible for conditional release.
Return to pre-trial detention
However, later that day after the Istanbul Court rules that Demirtaş is eligible for conditional release, upon a request from Ankara public prosecutor’s office, the Ankara Magistrate Court orders the pre-trial detention of Demirtaş and the other former co-chair of the HDP, Figen Yüksekdağ, in connection with a separate criminal investigation concerning the events of 6 to 8 October 2014 (to become Trial C).
He returns to pre-trial detention.
President Erdoğan makes a statement accusing Demirtaş of being the “killer” of “53 people” who had died during the protests on 6 to 8 October 2014.
He states that “we cannot release these people, if we do, our martyrs will call us to account for it.” referring to Demirtaş and Figen Yüksekdağ, former co-chairs of HDP. https://www.hrw.org/news/2020/11/19/turkey-opposition-politicians-detained-four-years
Demirtaş submits an individual application to the Constitutional Court regarding his pre-trial detention.
(The application is still pending for a Constitutional Court judgment as of August 2021.)
In a statement regarding Osman Kavala, Selahattin Demirtaş and Ahmet Altan, the Human Rights Commissioner of the Council of Europe states that “In such a context, these allegedly new charges (…) have no credibility and for me, this arrest amounts to ill-treatment.” calls on the Turkish authorities not to abuse criminal proceedings. https://www.coe.int/en/web/commissioner/-/the-reaction-of-the-council-of-europe-commissioner-for-human-rights-to-the-re-arrest-of-osman-kavala
Demirtaş makes an application to the ECtHR regarding his pre-trial detention under Trial C.
(The European Court communicated the case to the Turkish Government on 15 January 2021, giving time to submit its defence until the date of 13 July 2021.)http://hudoc.echr.coe.int/eng?i=001-207937
The Constitutional Court issues its judgment on the first application lodged by Demirtaş challenging his pre-trial detention of 4 November 2016.
It rules that his detention between 4 November 2016 and 7 December 2018 had exceeded the reasonable time and fifty thousand liras compensation must be paid.
(Appl. No: 2017/38610)
The ECtHR Grand Chamber delivers its judgment on Demirtaş v. Turkey (no. 2) (application no. 14305/17) finding a violation of Article 10 (freedom of expression), a violation of a violation of Article 5 § 1 (right to liberty and security), a violation of Article 5 § 3 (right to liberty and security); a violation of Article 3 of Protocol No. 1 (right to free elections); a violation of Article 18 (limitations on use of restrictions on rights) in conjunction with Article 5; and rules that Turkey was to take all necessary measures to secure Demirtaş’s immediate release (and implement the judgment in full, according to Article 46 of the Convention).
The Grand Chamber finds that “the applicant was placed in pre-trial detention [on 20 September 2019] on the basis of a new legal classification of the ‘acts and incidents’ relating to the period of 6-8 October 2014 that had also formed part of the grounds relied on to justify the specific deprivation of liberty raised in his application, which ended on 2 September 2019” (paragraph 441). The Court thus finds a continuity between Mr. Demirtaş’s pre-trial detention from 4 November 2016 to 2 September 2019, and again from 20 September 2019 and continuing in the present, and termed the detention order on 20 September a “return to pre-trial detention” and requests the Turkish Government to “take all necessary measures to secure the immediate release of” Demirtaş and states that the continuation of his pre-trial detention would entail a prolongation of the violations, as well as breaching the obligation on Turkey to abide by the Court’s judgment in accordance with Article 46(1) of the Convention (paragraph 442).
President Erdoğan responds to the ECtHR Grand Chamber’s judgment, saying “[a] decision hasn’t yet come out of our courts. They took this decision without domestic remedies being exhausted. They act against Turkey. They protect their own men. This decision does not bind us.”
President Erdoğan publicly repeats similar comments in an address to members of the AKP parliamentary group, accusing the ECtHR of seeking the release of a “terrorist” whom the president held responsible for the “murder” of “39 people” in violent protests that mainly occurred in Turkey’s southeast on 6-8 October 2014. https://bianet.org/english/politics/236482-erdogan-slams-ecthr-over-demirtas-verdict-says-it-can-t-replace-turkey-s-courts
Interior Minister Süleyman Soylu in a meeting with provincial police chiefs, states: “Demirtaş is a terrorist. The European Court of Human Rights ruling, whatever the reason, is meaningless.”https://www.aa.com.tr/en/turkey/echr-ruling-on-terrorist-hdp-leader-is-meaningless/2087175
The Ankara Assize Court rejects Demirtaş’s request for release in compliance with the ECtHR decision on the grounds that an official translation of the decision had not yet been provided by the Ministry of Justice. His lawyers appeal against this decision, but this is rejected by the higher court.
Mehmet Uçum, a senior advisor to President Erdoğan and the deputy director of the Presidential Law and Policy Board argues at length in a media interview that Turkey does not have to implement the ECtHR Demirtaş judgment; that domestic remedies have not been exhausted in this case; and that the judgment is a political attack on Turkey.
New bill of indictment against Demirtaş and his continuing pre-trial detention
The Ankara Chief Prosecutor’s office prepares a new indictment against Demirtaş and 107 others, (the basis of Demirtaş’s return to pre-trial detention on 20 September 2019), accusing them of involvement in protests that took place from 6 to 8 October 2014, allegedly resulting in 37 deaths in 32 cities across Turkey. The new indictment presents as evidence the same social media posts cited as evidence in the Trial A, which the Grand Chamber has found could not be construed as a call for violence.
This indictment forms the basis of Demirtaş’s ongoing detention, represents (another) reclassification of the same set of facts and incidents that had already been addressed by the Grand Chamber in Selahattin Demirtaş v. Turkey (No. 2).
Ankara 22nd Assize Court accepts the 3,500-page indictment against Demirtaş and 107 other defendants and orders the prolongation of Demirtaş’s detention. Demirtaş is prosecuted under 30 new charges, including undermining the unity and territorial integrity of the state, homicide, robbery and damage to property. The indictment is built upon the problematic allegation that Demirtaş committed the alleged offences because he shared his and his party’s political views on social media and/or in his public statements.
In the indictment, his statements on the events of 6-8 October 2014, on hunger strikes, his statements concerning the political agenda after his detention on 4 November 2016, statements from identified and anonymous witnesses and social media posts of twitter accounts which do not belong to him are all cited as evidence.
The Ankara 22nd Assize Court argues in its reasoning of the decision on the continuation of Demirtaş’s detention that the new indictment is not based on the same acts and events or concern the same parties as case file no. 2017/189 pending before the Ankara 19th Assize Court (Trial A). The local court states that the new indictment of 30 December 2020 is a new and different file and therefore lies outside the scope of the judgment of the Grand Chamber of the ECtHR.
In response to an essay by two jurists from Turkey refuting his argument that ECtHR judgments were not binding on Turkey, Mehmet Uçum, a senior advisor to President Erdoğan and the deputy director of the Presidential Law and Policy Board, writes a further article in a Turkish daily newspaper laying out at greater length an argument that the ECtHR judgments offer guidance but to insist that they are binding would undermine the independence of Turkey’s courts and national sovereignty and that the principle of subsidiarity means the ECtHR cannot be above Turkey’s courts.
The Government claims in its submission before the Council of Europe Committee of Ministers (“CM”) which oversees the implementation of the ECtHR judgments, that there are two separate detention orders issued against Demirtaş and the scope of the execution of the Grand Chamber judgment of Demirtaş v. Turkey (no.2) is limited to the period between 4 November 2016 and 7 December 2018.
The CM holds a meeting examining the Demirtaş v. Turkey (no.2) judgment.
The CM decides that the Government’s arguments “[had] been already examined and rejected by the Court.” Underlining the Court’s conclusion in relation to Article 46(1) of the Convention, the CM urges the Turkish authorities “to ensure the applicant’s immediate release.” CM decision, 1398th meeting (DH) 9-11 March 2021 – H46-40 Selahattin Demirtaş v. Turkey (No. 2)
Furthermore, the CM decides that the obligation of restitutio in integrum requires that all negative consequences of the violation be eliminated by Turkey without delay.
The Ankara 22nd Assize Court rejects Demirtaş’s lawyers request for his release and prolongs his pre-trial detention. 1406th meeting (June 2021) (DH) – Rule 9.1 – Communication from the applicant (17/05/2021) in the case of Selahattin Demirtaş v. Turkey (No. 2), paragraph 9
On the evening before the first hearing of Trial C, Minister of Interior Süleyman Soylu initiates a campaign on social media with the hashtag “HDPkkiçinHesapVakti” (“JudgmentDayforHDPkk”) by sharing a video providing an extremely biased version of the proceedings, and jeopardising the presumption of innocence of the defendants including Demirtaş.https://twitter.com/suleymansoylu/status/1386344380953411587
The first hearing is held before the Ankara 22nd Assize Court.
Fahrettin Altun, the Head of Communications for the President, states that “the perpetrators of the 6-8 October events are before the judges today; it is judgment day for murderers”, https://twitter.com/fahrettinaltun/status/1386600392864194560 constituting serious interference not only in Demirtaş’s due process rights but also in the integrity of the judicial process.
Demirtaş attends the hearing via video conference (SEGBIS) and is not given the floor by the bench of the Ankara 22nd Assize Court despite his insistent requests.
The second hearing is held before the Ankara 22nd Assize Court.
The Ankara 19th Assize Court, which has been hearing the main case (Trial A) against Demirtaş since 2017, gives a decision of joinder to the effect that case files before the Ankara 19th (Trial A) and 22nd Assize Courts (Trial C) are now being heard by the Ankara 22nd Assize Court jointly.
Ankara 19th Assize Court sends the case file (Trial A) to the Ankara 22nd Assize Court (Trial C).
As a result, the case before the Ankara 19th Assize Court is closed. From now on, the case relating to his first pre-trial detention period will be heard before the Ankara 22nd Assize Court together with the case relating to his ongoing pre-trial detention which the ECtHR referred to as a ‘return to pre-trial detention’.
The third hearing of the trial before the Ankara 22nd Assize Court continues over two full weeks. Seven defendants are released from pre-trial detention. However, on 25 June 2021, the court rules for the continuation of Demirtaş’s pre-trial detention.
Selahattin Demirtaş, therefore, remains in pre-trial detention in connection with proceedings concerning the events of 6-8 October 2014, which the Committee of Ministers found to have been addressed by the ECtHR in its judgment.
The CM met to examine the execution of Demirtaş v. Turkey (no.2) judgment.
The CM called for the Demirtaş’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. The CM also recalled the findings of the European Court stressing that Demirtaş was detained in the absence of a solid evidence and his pre-trial detention served mainly as a means to stifle pluralism and limit freedom of political debate.
The CM adopted interim resolution on the execution of the ECtHR judgment
In its resolution, the CM once again strongly urged the authorities to immediately release Demirtaş. In addition, the CM reiterated that the Court already rejected the argument of the Turkish authorities that the current pre-trial detention falls outside the scope of the ECtHR judgement. https://search.coe.int/cm/pages/result_details.aspx?objectid=0900001680a4b407
The Committee of Ministers examined the execution of Demirtaş v. Turkey (no.2) judgment at their 1428th meeting (DH)
In its resolution, the CM recalled that the Court held that Turkey had to take all necessary measures to secure Demirtaş’s immediate release, but also noted the Turkish authorities’ claim that the applicant was being detained on the basis of new evidence and allegations which were in substance different from those examined by the Court in its judgment.
The Committee of Ministers will examine the execution of Demirtaş v. Turkey (no.2) judgment at their 1436th meeting (DH).
Recommendations to the Government of Turkey
ARTICLE 19 calls for immediate release and acquittal of Selahattin Demirtaş in accordance with the European Court of Human Rights judgment and for the halting of all criminal proceedings initiated against him following the constitutional amendment lifting his parliamentary immunity. We call on the Turkish authorities to free the many other writers, journalists, human rights defenders and opposition politicians jailed for exercising their right to freedom of expression.
Recommendations to the Committee of Ministers
We call on the Committee of Ministers to insist on the immediate release of Selahattin Demirtaş and to underline that the Grand Chamber judgment clearly applies to Demirtaş’s ongoing pre-trial detention; and in the event that Selahattin Demirtaş remains in detention at the time of the DH 1428 March 2022 meeting, to trigger infringement proceedings against Turkey under Article 46(4) of the Convention.
The content of this case file was prepared with the information that were retrieved from the judgments of the Second Section of the ECtHR and the Grand Chamber, statements and reports of the Human Rights Watch, joint third party interventions of ARTICLE 19 and HRW, joint Rule 9.2 submissions of ARTICLE 19, HRW, ICJ, FIDH and TLSP, and the information note that was prepared for ARTICLE 19 by the defence lawyers.
Relevant reports / articles
Turkey: ARTICLE 19 and Human Rights Watch submit intervention to the European Court of Human Rights regarding detained MPs
Turkey: Free Politician after European Court Ruling
Turkey: Open letter to the Presidents of the European Council and the European Commission ahead of their visit to Turkey
Turkey: Opposition Politicians Detained for 4 Years
Turkey: Respect ECtHR ruling and end politically motivated trials against Demirtaş
The content of this case file is based on an unofficial translation of the materials from Turkish. We take no responsibility for errors in the analysis above from any inaccuracies or errors in the translation.