(Istanbul) – The Turkish government should immediately release from detention Selahattin Demirtaş, former co-leader of the opposition Peoples’ Democratic Party (HDP), in accordance with the 2018 judgment of the European Court of Human Rights, ARTICLE 19 and Human Rights Watch said today.
The detention of Demirtaş and eight other democratically elected Peoples’ Democratic Party members of parliament four years ago this month was the start of the government’s ongoing assault on the party and part of a broader pattern of politically motivated prosecutions and incarcerations in the wake of the July 15, 2016 coup attempt. The Turkish government should also review the detentions of the other former HDP deputies, including the co-chair of the party, Figen Yüksekdağ, on whose cases the European Court of Human Rights has yet to rule.
“Over the past four years the Turkish government has distorted and perverted the legal process to serve the political aim of keeping opposition politicians Selahattin Demirtaş, Figen Yüksekdağ, and other former HDP deputies locked up,” said Hugh Williamson, Europe and Central Asia director at Human Rights Watch. “The Turkish government has misused detention and criminal proceedings in a campaign of persecution against Demirtaş in particular, including by flouting a European Court of Human Rights’ order to release him and concocting new baseless charges to keep him behind bars.”
Demirtaş and the others are being targeted because they led the Peoples’ Democratic Party’s political opposition to the government of President Recep Tayyip Erdoğan. Demirtaş and Yüksekdağ remain in detention in Edirne F-type and Kandıra F-type prison in western Turkey, respectively, and are among six former HDP members of parliament still in prison after being detained on November 4, 2016, and in one case a few weeks later, while they were serving deputies. They are held either in pretrial detention or are serving sentences. Their prosecutions were overwhelmingly based on their political speeches over the years.
On November 4, 2016, courts ordered the detention on terrorism charges of nine members of the party in parliament, including Demirtaş and Yüksekdağ, hours after police arrested them and three other party members serving in parliament in the middle of the night in a coordinated operation in various cities.
While serving parliament, members usually enjoy a high level of immunity from prosecution for their political activities in office; the arrest and detention of the HDP deputies is based on a controversial temporary constitutional amendment and parliamentary vote in May 2016 that lifted their parliamentary immunity.
Before parliament adopted the constitutional amendment, in 2015 and 2016 President Erdoğan had made several speeches pushing for them to be prosecuted and suggesting that the party should not be in parliament because it was indistinguishable from the armed Kurdistan Workers’ Party (PKK). International bodies including the Council of Europe’s Venice Commission, which advises on constitutional matters, strongly criticized the way the deputies’ parliamentary immunity was lifted. In individualized proceedings after they were detained en masse, the members of parliament stood trial on charges of “membership of a terrorist organization,” “spreading terrorist propaganda,” and many other crimes. Human Rights Watch analyzed the evidence in 11 of the indictments, including the main ongoing case against Demirtaş, for which he faces a possible sentence of 142 years if convicted.
In all cases, the bulk of the prosecution’s evidence consists of the defendants’ public speeches and activities as politicians and in no case is there evidence of material connection with violent acts. As the trials have been taking place, President Erdoğan has made several speeches saying that Demirtaş and the others must remain in detention.
“The decision to lift immunity from prosecution for parliamentarians in Turkey has enabled serious attacks on democratic institutions in Turkey,” said Sarah Clarke, Head of Europe and Central Asia at ARTICLE 19. “The speeches of President Erdoğan concerning Demirtaş and the subsequent refusal of the court to release him, despite the ruling of the European Court of Human Rights, is a shocking reminder of the power of the executive in Turkey to influence court proceedings.”
After exhausting domestic remedies, Demirtaş and the other deputies filed applications to the European Court of Human Rights regarding the removal of their parliamentary immunity and later concerning the legality of their detention.
On November 20, 2018, the European Court found in the case of Demirtaş v. Turkey (no. 2) (application no. 14305/17) 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.”
Demonstrating the importance of the case, the Court made the rare ruling that there had been a violation of Article 18 of the European Convention, meaning that the extension of Demirtaş’ 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 ordered Demirtaş’ immediate release, finding a violation of his right to liberty and another violation of the right to free and fair elections. ARTICLE 19 and Human Rights Watch submitted a joint third-party intervention in the case.
The cases concerning the lifting of parliamentary immunity and separate cases brought by the other HDP deputies concerning the legality of their detention are ongoing before the European court.
In a complicated sequence of events, described below, the Turkish government did not release Demirtaş from detention as the European Court’s ruling required but instead expedited a conviction against him for a 2013 speech he had given and detained him again on new charges. The Turkish government and Demirtaş’s lawyers referred the case to the European Court’s Grand Chamber whose judgment, following a hearing on September 18, 2019, is pending. ARTICLE 19 and Human Rights Watch also submitted a joint third-party intervention before the Grand Chamber.
Two days after the Grand Chamber hearing, the Ankara prosecutor sought the detention of Demirtaş again in relation to another criminal investigation based on the same facts, which form part of the evidence in the ongoing main trial against him. Demirtaş has now been in detention for over four years.
“The Turkish government needs to carry out the long overdue release of Selahattin Demirtaş and comply with the decision of the European Court of Human Rights,” Williamson said. “The hand-in-glove coordination we have seen between President Erdoğan, prosecutors, and the Turkish courts to keep him behind bars in violation of his rights is a serious abuse of the rule of law and democratic safeguards.”
For detailed analysis, please see below.
Demirtaş’ Continued Detention
On November 20, 2018, when the European Court of Human Rights issued its judgment on the Demirtaş case, President Recep Tayyip Erdoğan said in response, “This doesn’t bind us. We will make a counter move and finish the job.” A day later, the president made 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.”
On November 30, the Ankara 19th Assize Court hearing the main case against Demirtaş ignored the Strasbourg ruling and did not release him, contending that the ruling was not final. Human Rights Watch and ARTICLE 19 regard the president’s speeches as a direct intervention in a decision by a local court amounting to an instruction to the court to disregard the European Court’s ruling.
Days later the authorities found another way to bypass the European Court’s judgment. The Istanbul regional court of appeal on December 4 conducted a greatly expedited review of a conviction against Demirtaş concerning a political speech and upheld a four-year and eight-month sentence against him for “spreading terrorist propaganda.”
Demirtaş had made the speech at a Kurdish new year public assembly in Istanbul in 2013. The speech did not advocate violence and was not viewed by the authorities as criminal at the time he made it. But five years later the authorities used it as a pretext to render Demirtaş a convicted prisoner. The sentence handed down is also unusually high, compared with other sentences Turkish courts have imposed for similar propaganda convictions. ARTICLE 19 and Human Rights Watch consider that the conviction violates Demirtaş’ right to freedom of expression as well as to liberty and security and a fair trial.
Both, the Turkish government and Demirtaş, decided to contest the European Court’s November 2018 judgment by seeking review of the case by the European Court’s Grand Chamber. The government contends that as there is no final judgment until the Grand Chamber issues its judgment, there was no obligation to release Demirtaş at that time. However, because a chamber judgment is not final, it does not mean that it has no authority and unless and until the Grand Chamber finds otherwise, the Turkish government is acting in violation of Demirtaş’ right to liberty and security and is perpetuating that violation by refusing to release him during the referral to the Grand Chamber.
Compliance with the November 18 judgment is particularly urgent given that it concerns a violation of an individual’s right to liberty. Turkey’s decision to ignore it and wait for the Grand Chamber judgment corroborates the concern of ARTICLE 19 and Human Rights Watch that the Turkish government is using the appeal to the Grand Chamber to delay implementation of the initial ruling.
The Europe Court’s Grand Chamber hearing took place on September 18, 2019. Its judgment is pending. In a flurry of activity just two weeks before the September 18 Strasbourg hearing, the Ankara 19th Assize Court finally effectively complied with the November 2018 European Court ruling by issuing a decision in Demirtaş’ main case to release him. He remained in prison, however, on the basis that he was serving the sentence for “spreading terrorist propaganda” for the 2013 speech.
He was scheduled to be released on September 20, just two days after the Grand Chamber hearing, because the Istanbul 26th Assize Court determined that he had served enough of that sentence to be released on parole.
However, on the day that Demirtaş could have been released, the Ankara chief prosecutor cited an old and dormant ongoing investigation as grounds to detain Demirtaş and Yüksekdağ, the former HDP co-chairs. In violation of accepted criminal procedure, the prosecutor did not take their statements, and Demirtaş and Yüksekdağ only learned of the charges against them from his request to the court to detain them. They appeared before the court by video conference calls from prison, which promptly detained them on suspicion of crimes including “attempting to destroy the territorial integrity of the country” (armed separatism) and “inciting murder.” The timing and the manner in which the detention was implemented leaves no doubt that the main intention was to prevent Demirtaş from leaving prison and to create a new basis for another detention order.
Demirtaş has been detained, but not indicted, ever since in the scope of the Ankara prosecutor’s ongoing investigation into protests that took place between October 6-8, 2014. The 2014 protests began in cities of Turkey’s southeast as an expression of solidarity with the Kurds of Kobane, a north Syrian town at the time under siege from the Islamic State (ISIS) and in criticism of the Turkish government’s view of the ISIS siege.
The protests turned violent, and government estimates put the number of protesters who died across the southeast at between 37 and 53. Since 2016 President Erdoğan has repeatedly made public speeches holding Demirtaş and the Peoples’ Democratic Party responsible for the deaths because the party had officially supported the protests and encouraged participation, though it did not advocate violence.
In October 2020, 17 other former and serving Peoples’ Democratic Party officials and politicians were also detained in the scope of the same investigation. No indictment has yet been issued. ARTICLE 19 and Human Rights Watch note that the unsubstantiated allegation that Demirtaş incited these violent protests also forms part of the evidence in the main ongoing case against him. Disregarding the restriction in criminal law on seeking to bring multiple charges on the basis of the same set of facts, the Ankara chief prosecutor is running a second investigation relating to the same set of facts but leveling more serious charges.
The day after Demirtaş’ September 20, 2019 detention, President Erdoğan made another speech indicating his strong personal interest in keeping Demirtaş and the other party members detained and demonstrating his effort to influence the case. “If you are searching for a murderer in this country you don’t need to search their address,” he said. “They have infiltrated the parliament. This nation does not and will not forget those who called the people into the streets and then in Diyarbakir had 53 of our children killed. We will follow this business to the end. We won’t release them. If we release them our eternal martyrs will hold us accountable.”
Notably, in June 2020, 19 months after the European Court judgment that Demirtaş’ detention was unlawful, Turkey’s Constitutional Court also found the lower court’s decisions to prolong Demirtaş’ initial detention violated his right to liberty. In its reasoning, the Constitutional Court cited the lower court’s failure to take account of Demirtaş’ chairmanship of the Peoples’ Democratic Party and his candidacy in the June 24, 2018 presidential elections when it rejected requests for his release. The Constitutional Court’s judgment was for all intents and purposes moot, as the 19th Assize Court in Ankara had already technically released him from that detention nine months earlier.