On 22nd December 2020, the European Court of Human Rights (ECtHR) delivered its Grand Chamber judgment in Selahattin Demirtaş v Turkey (No. 2) (application no. 14305/17). In this case, the Court has been given the opportunity to reiterate its key positions on a highly important aspect of freedom of expression (Article 10), the right to liberty and security (Article 5), and the right to free elections (Article 3 of Protocol No. 1). In addition, the Court has for the first time handed down a judgment finding that Article 18 had been violated in conjunction with Article 5. Finally, this judgment is remarkable because it raises the question of what to do when Contracting Parties do not comply with ECtHR judgments (Article 46). This article provides a brief overview of the facts and the judgment of this case. Later, I will argue that the execution of this judgment presents a serious challenge and will discuss some legal arguments in that regard.
The applicant, Mr. Demirtaş, (who is still detained in Turkey, at the time of writing this article) was one of the co-chairs of the Peoples’ Democratic Party (HDP). Between 2007 and 2018, he was a member of the Turkish Grand National Assembly and stood in the 2014 and 2018 presidential elections (§15, 16).
Beginning on 2 October 2014, protests against the Daesh attacks on Kobani took place in Turkey (§18). On 6 October, these protests turned violent as different groups clashed and the security forces intervened (§23). The President of Turkey gave a statement to the press blaming the HDP leaders (§35).
On 4 November 2016 twelve HDP members of parliament, including Mr. Demirtaş, were detained by the Diyarbakır 2nd Magistrate’s Court based on the accusation of being a member of an armed terrorist organisation and incitement to commit an offence (§70). On 7 December 2018, Mr. Demirtaş began a prison sentence of four years and eight months (§291).
Between 17 November 2016 and 11 December 2018, Mr. Demirtaş made several individual applications to the Turkish Constitutional Court, the highest court in Turkey. On 21 December 2017, the Constitutional Court handed down its first judgment regarding Mr. Demirtaş’s pre-trial detention, stating his application was inadmissible (§96).
In addition, the applicant petitioned the ECtHR on 20 February 2017. A Chamber judgment was delivered on 20 November 2018. On 19 February 2019 the applicant and the Government each requested that the case be referred to the Grand Chamber. On 18 March 2019, the panel of the Grand Chamber accepted their respective requests.
On 9 June 2020 the Constitutional Court issued a judgment, finding unanimously that a violation of Article 19 § 7 of the Turkish Constitution (corresponding to Article 5 § 3 of the Convention) had occurred due to the period of time Mr. Demirtaş had been in pre-trial detention (§121). The Constitutional Court declared that there had not been relevant or sufficient grounds to extend his detention (§128).
Article 10. The Court concluded that Mr. Demirtaş’s right to freedom of expression enshrined in Article 10 had been violated by the lifting of his parliamentary immunity, his first and continuing pre-trial detention, and the prosecution for terrorism-related offences on the basis of political speeches he had made (§270,281 and 282).
Article 5 § 1 and 3. As regards Article 5, the domestic courts had not presented any specific facts or information that could have led to a suspicion necessitating the detention of the applicant before trial, nor at any time during his detention. Hence, there was no reasonable suspicion that he had committed the offences in question. As a result, the Court found that Article 5 was violated (§340, 354).
Article 3 of Protocol No. 1. The Court concluded that the domestic courts had been in contravention of their procedural obligation under Article 3 of Protocol No. 1 because they had not established whether or not Mr Demirtaş had been entitled to parliamentary immunity for the statements on the basis of which the prosecution had been commenced (§397, 398).
Article 18 in conjunction with Article 5. The Court declared that the grounds submitted by the authorities for the detention of the applicant was intended to mask an ulterior political purpose, a very serious matter for democracy (§436). Therefore, a violation of Article 18 of the Convention in conjunction with Article 5 (§438) had occurred.
Article 46. The Court declared that the respondent State must take all necessary measures to ensure the immediate release of the applicant (§442).
Comment and conclusion
Firstly, the Court concluded that in Turkey arrests and trials take place on political grounds and that at the present time the political conditions in Turkey are not conducive to the implementation of the Convention or the establishment of democracy. This judgment clearly differs from earlier case-law, where the Court seemed reluctant to properly criticise the state of democracy in Turkey. Here, however, it indicates that the continuation of Demirtaş’ detention is emblematic of the current undemocratic nature of the Turkish political landscape. It gives us an example of the fact that Demirtaş was unable to participate and campaign in two elections. The judgment also shares concerns that the judicial system in Turkey is not independent and impartial. Consequently, the Court found that the applicant is being held in detention for political reasons and that this constitutes a violation of Article 18 in combination with Article 5. It is the first time that the Court has handed down such a judgment.
This judgment of a violation of Article 18 rules out the possibility that Demirtaş could be released and then re-arrested for political reasons. Its scope also includes all the other HDP MPs who were detained on politically motivated charges. Hence, the Court’s reliance on Article 18 ensures that the Demirtaş judgment has a broader effect.
Secondly, the Court reminds Contracting Parties’ obligations under Article 46 (see Kavala v Turkey) to enforce the judgment. The reason for the Court’s focus on Article 46 is the attitude of Turkish government officials to the Court’s judgments. Following the judgment handed down in 2018, President Recep Tayyip Erdoğan said: “The decisions delivered by the ECtHR do not bind us”. In this judgment, the Court is sending a clear message to the politicians in Turkey regarding their obligations arising from the Convention, stressing once again the significance of Article 46. This is also relevant for the Turkish government’s compliance with domestic law because Article 90(5) of the Turkish Constitution gives pre-eminence to the Convention over domestic law. In this respect, it is important that Turkey must immediately release Mr. Demirtaş and others in his position.
Thirdly, this judgment raises the question of the Council of Europe (CoE) mechanisms’ powers on how to hold Turkey accountable. Despite the clear meaning of the above-mentioned articles, the Turkish courts have still not ordered the release of Mr. Demirtaş at the time of writing. Turkish politicians have even stated that they will not comply with the judgment. The Committee of Ministers of the CoE is in fact responsible for overseeing the implementation of ECtHR judgments by the Contracting Parties. Furthermore, the Parliamentary Assembly of the CoE has the power to suspend or terminate that Contracting Party’s membership in the event of no implementation.
In conclusion, the execution of this judgment presents a serious challenge for the CoE. Given the statements made by Turkish leaders, this judgment has reignited the long-running debate as to whether the Committee of Ministers and the Parliamentary Assembly take their executive responsibilities seriously and the degree to which they protect the Court’s authority and prestige.
Dr. Özgür H. Çınar is a lawyer and an associate professor, University of Greenwich, School of Law and Criminology.