Selahattin Demirtaş v. Turkey (no. 2)

Information Note on the Court’s case-law 223

November 2018

Selahattin Demirtaş v. Turkey (no. 2) - 14305/17

Judgment 20.11.2018 [Section II]

Article 3 of Protocol No. 1

Free expression of the opinion of the people

Stand for election

Member of parliament prevented from discharging his duties as a result of his prolonged pre-trial detention, without a proper examination of the possibility of alternative measures: violation

Article 18

Restrictions for unauthorised purposes

Member of parliament prevented from discharging his duties as a result of his prolonged pre-trial detention for the purpose of stifling pluralistic political debate: violation

[This case was referred to the Grand Chamber on 18 March 2019]

Facts – During the summer of 2015, deadly acts of violence attributed to the PKK (Workers’ Party of Kurdistan) in conjunction with the situation in Syria prompted the authorities to respond by ending the process initiated in 2012-13 for finding a peaceful solution to the Kurdish question. The applicant, who was co-chair of the HDP (a left-wing pro-Kurdish party), 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 the President of Turkey vowed that HDP members of parliament should “pay the price” for recent deadly events for which he held them responsible. 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 fourteen from the HDP) were placed in pre-trial detention. The applicant was arrested in November 2016 on suspicion of leading an illegal organisation and making statements encouraging terrorism. He has been in pre-trial detention since then.

Law

Article 5 § 1 of the Convention: The applicant’s initial detention had complied with domestic legislation. It did not appear arbitrary or manifestly unreasonable. In the light of the evidence in the file at the relevant stage of the criminal proceedings, the applicant had indeed been detained on “reasonable suspicion” of having committed one of the offences of which he was accused.

Conclusion: no violation (unanimously).

Article 5 § 3 of the Convention: The courts had not justified the applicant’s continued detention on sufficient grounds, particularly as regards the risk of his absconding. The option of releasing him had not been the subject of any detailed analysis.

Conclusion: violation (unanimously).

Article 3 of Protocol No. 1: The applicant contended that his detention was a political measure aimed in practice at preventing him from sitting in Parliament. Examining a case from this perspective for the first time, the Court acknowledged that this was a matter of crucial importance for the effective performance of parliamentary duties. The objection of incompatibility ratione materiae between this complaint and Article 3 of Protocol No. 1 was joined to the merits and dismissed for the following reasons.

The right to free elections was not restricted simply to the opportunity to take part in parliamentary elections: once elected, a member of parliament had to be able to discharge the associated duties. The Convention, admittedly, did not preclude the pre-trial detention of a member of parliament per se. Such a measure did not automatically constitute a violation of Article 3 of Protocol No. 1. However, in the present case, the applicant’s pre-trial detention had deprived him of any opportunity to take part in the activities of the legislature up to the expiry of his term of office (for a total of one year, seven months and twenty days). This had undoubtedly constituted an interference with the exercise of his rights under this Article. In view of the length of the detention and its repercussions, the Court was required to proceed with its examination, this being the only way of addressing the substance of the complaint.

The applicant’s detention had complied with domestic legislation and had pursued the legitimate aim of ensuring the proper conduct of the criminal proceedings. The question of its proportionality remained to be determined.

To discharge their positive obligation under Article 3 of Protocol No. 1, the member States had to set up a remedy affording members of parliament who were placed or kept in pre-trial detention an effective opportunity to challenge their deprivation of liberty and to secure an assessment of their complaint under that Article. In that connection, it was essential for the courts to show that they had duly weighed up the interests of the proper administration of justice as the stated justification for the detention against the interests (not only of the individual applicant but also of society as a whole) safeguarded by Article 3 of Protocol No. 1. Consideration should also be given to the duration of the detention and its consequences.

However, the judicial authorities did not appear to have had sufficient regard to the fact that the applicant was not only a member of parliament but also one of the leaders of the country’s political opposition, whose performance of his parliamentary duties required a high level of protection. Nor had they demonstrated that there were compelling reasons justifying keeping him in pre-trial detention for such a lengthy period (this being precisely the reason for the Court’s above finding of a violation of Article 5 § 3).

The Court had always emphasised that pre-trial detention was only justified where less severe measures were insufficient and that its duration should be as short as possible. Those considerations applied a fortiori to the detention of a member of parliament. In a democracy, Parliament or comparable bodies were essential fora for political debate. While serving their term of office, members of parliament represented their voters, drawing attention to their concerns and defending their interests. Yet the application of alternative measures to the applicant’s detention did not appear to have been given genuine consideration, since the judicial authorities had not provided any specific reasons connected to his individual case in support of their systematic finding that such measures were insufficient. Throughout his detention, moreover, the applicant had been deprived of all opportunity to devote himself to his parliamentary responsibilities.

Although the applicant had retained his status as a member of parliament throughout his term of office and had been able to receive his salary in that capacity, the fact that it was impossible for him to take part in the activities of the National Assembly on account of his pre-trial detention constituted an unjustified interference with the free expression of the opinion of the people and with his right to be elected and to sit in Parliament. In the circumstances of the case, the measure in question appeared incompatible with the very essence of his right to be elected and to sit in Parliament, and infringed the sovereign power of the electorate that had elected him.

Conclusion: violation (unanimously).

Article 18, in conjunction with Article 5 § 3, of the Convention: The complaint under this Article related to a fundamental aspect of the present case and as such required an examination.

Article 18 of the Convention could only be breached after a significantly high threshold had been crossed. However, as most of the accusations forming the basis for the applicant’s pre-trial detention related directly to his expressive political activity as leader of an opposition party, a proper examination of this complaint could not be detached from the general political and social context.

Concordant inferences drawn from this context supported the argument that domestic legislation was increasingly being used to silence dissenting voices. Reports and opinions by international observers indicated that the tense political climate in Turkey during recent years had created an environment capable of influencing certain decisions by the national courts, especially during the state of emergency. A number of leading figures from the applicant’s political party, including members of parliament and elected mayors, had been placed in pre-trial detention, often on account of their political speeches. A certain pattern was thus emerging.

Furthermore, it was hard to deny that the detention of the applicant, one of the opposition leaders, and other members of parliament from the same party had had a negative effect on the “no” campaign concerning the proposal to introduce a presidential system, which was probably the most significant amendment to the Constitution since the proclamation of the Republic of Turkey in 1923 (the proposal had been submitted to a national referendum on 16 April 2017).

Moreover, the National Assembly had decided to bring forward the presidential and parliamentary elections scheduled for 2019 by holding them on 24 June 2018 (about a year and a half before their expected date). In the case of the presidential election, the six candidates standing had included the applicant, who was in detention.

Thus, although the applicant had initially been detained on “reasonable suspicion” of having committed a criminal offence, the purpose of his continued detention also appeared to have been political in nature. It remained to be determined whether this aspect had become predominant over the course of time.

Several criminal investigations in respect of the applicant had been ongoing for years, but no significant steps had been taken until the end of the “solution process” to lift his parliamentary immunity. Although the investigation had already been initiated by that time, it appeared at least to have been “accelerated” following the speeches by the President of Turkey and comments he had made on 16 March 2016.

As regards the nature and degree of reprehensibility of the alleged ulterior purpose, the Court observed that the applicant’s complaint related not only to his rights and freedoms as an individual but to the whole democratic system itself. The issue at stake was thus undoubtedly serious.

Having regard to the foregoing, and in particular the fact that the applicant’s detention had repeatedly been extended on formulaic grounds, the Court found that it had been established beyond reasonable doubt that the extensions of his 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.

Conclusion: violation (six votes to one).

Article 34 of the Convention: Noting that his lawyers had been the subject of various criminal investigations, the applicant argued that this had amounted to an attempt to intimidate them. However, there was no indication that the investigations in question had been designed to induce the applicant to withdraw or modify his application or otherwise interfere with the effective exercise of his right of individual petition, or indeed that they had had such an effect. It was clear even from the wording of the complaint that the investigations were unrelated to the present application.

Conclusion: no failure to comply with Article 34 (unanimously).

Article 46: The respondent State was required to end the applicant’s pre-trial detention at the earliest possible date, unless new grounds or evidence justifying its continuation were put forward.

Article 41: EUR 10,000 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.

The Court also found, unanimously, that there had been no violation of Article 5 § 4 on account of the time taken to examine the application to the Constitutional Court.

(With regard to Article 18, see also Navalnyy v. Russia [GC], 29580/12 et al., 15 November 2018, Information Note 223)

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This summary by the Registry does not bind the Court.

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