ECHR judgment of November 20, 2018 in the case of Selahattin Demirtas v. Turkey (N 2) (application No. 14305/17).
In 2017, the complainant was assisted in preparing a application. Subsequently, the application was communicated to Turkey.
The case was successfully considered a application of obstruction to a member of parliament in the performance of his duties by his prolonged detention in order to suppress the pluralistic political dialogue. In the case of violations of the requirements of paragraph 3 of Article 5 and Article 18 of the Convention for the Protection of Human Rights and Fundamental Freedoms and Article 3 of Protocol No. 1 to the Convention. The case did not violate the requirements of paragraphs 1 and 4 of Article 5, Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
THE CIRCUMSTANCES OF THE CASE
In the summer of 2015, the violent actions related to the situation in Syria, attributed to the Kurdistan Workers' Party, led to a reaction from the authorities to end the peaceful "resolution" of the Kurdish question, which began in 2012-2013. The applicant, who was the co-chairman of the Democratic Party of Peoples (the pro-Kurdish left-wing party), was re-elected to the country's parliament in November 2015 for a four-year term. During various speeches in 2015 and 2016, the President of the Republic announced that the deputies of the Democratic Party of Nations (“DPN”) had to “pay” for the recent violent actions for which they, according to the president, were responsible. After the revision of the Constitution in terms of the immunity of the deputies of the parliament, in respect of 154 deputies (of which 55 belonged to the DPN), the immunity was lifted. Fifteen opposition deputies (of whom 14 were members of the DPN) were detained. In November 2016, the applicant was arrested on charges of running a secret organization and promoting terrorism. The applicant has remained in custody ever since.
The Kurdistan Workers' Party was included by the European Union in the "black" list of individuals and organizations that the European Union considers to be terrorist (note. Editor).
QUESTIONS OF RIGHT
Regarding compliance with paragraph 1 of Article 5 of the Convention. The applicant’s detention was carried out in accordance with Turkish law. It seemed neither arbitrary nor manifestly unreasonable. In the materials of his criminal case, at the relevant time, there were indeed “convincing reasons” to suspect him of having committed the offenses charged with him.
The case did not violate the requirements of Article 5 § 1 of the Convention (adopted unanimously).
Regarding compliance with paragraph 3 of Article 5 of the Convention. The Turkish courts did not substantiate the necessity of keeping the applicant in custody with sufficient reasons, in particular as regards the risk of evading the administration of justice. The possibility of his release pending trial was not carefully considered by the courts.
The case was a violation of the requirements of paragraph 3 of Article 5 of the Convention (adopted unanimously).
Regarding compliance with Article 3 of Protocol No. 1 to the Convention. The applicant considered his detention as a political measure, the actual purpose of which was to prevent him from executing his powers as a deputy. Considering the case for the first time from this point of view, the European Court of Justice recognized that this is a key issue for the actual exercise of the powers of a member of parliament. The argument that the complaint was incompatible with the Convention ratione materiae was examined during the merits of the case and was rejected on the following grounds.
The right to free elections is not limited to the mere opportunity to participate in the election of members of parliament: once elected, a member of parliament must be able to exercise his powers. Certainly, the Convention does not prohibit the detention of deputies as such. This measure does not automatically constitute a violation of Article 3 of Protocol No. 1 to the Convention. However, in the present case, the applicant's detention completely deprived him of the opportunity to participate in the activities of parliament until the expiration of his term of office (within one year, seven months and 20 days). Thus, it thereby intervened in the exercise of the rights guaranteed by this article. Given the length of the detention and its consequences, the Court found it necessary to continue the examination of the complaint, and this was the only way to examine it on the merits.
The applicant’s detention was in compliance with Turkish law and pursued the legitimate aim of ensuring the normal course of the criminal proceedings. It was necessary to consider the issue of its proportionality.
In order to fulfill their positive obligation under Article 3 of Protocol No. 1 to the Convention, States parties must establish a remedy that allows a member of parliament who is detained to effectively challenge his deprivation of liberty and get his complaint of violation of rights guaranteed by Article 3 of the Protocol N 1 to the Convention. In this regard, the Turkish courts should prove that they properly established a comparative balance, on the one hand, between the interests of the proper administration of justice, which allegedly justified detention, and, on the other, the interests (not only the applicant individually, but also the public ), protected by Article 3 of Protocol No. 1 to the Convention. Also consider the duration of the detention and its consequences.
However, taking into account the available materials of the case, there was no opinion that the Turkish courts duly took into account the fact that the applicant was not only a deputy, but also one of the opposition leaders in the country, whose exercise of his deputy’s authority required an increased level of protection. In addition, it was not proved that there are imperative grounds for extending the period of detention for such a long period (for this reason, a violation of Article 5 § 3 of the Convention was established).
The Court has always emphasized that pretrial detention is justified only when less stringent measures appear to be insufficient, and should be as short as possible. These arguments are applicable a fortiori in the case of the detention of a deputy. In a democratic society, parliament or similar bodies are a necessary forum for political debate. During the exercise of his powers, the deputy represents his voters, draws attention to their needs and protects their interests. However, it does not follow from the materials of the case that the courts considered the possibility of applying alternative preventive measures, since they did not indicate any specific and individual reasons for their systematic conclusion about their insufficiency. Throughout the entire period of his detention, the applicant did not have any opportunity to fulfill his parliamentarian duties.
Even if the applicant was able to maintain his status as a parliamentarian during his entire term of office and receive a deputy’s salary, inability for him to participate in parliament’s activities due to his detention was an unjustified encroachment on the free expression of the will of the people and on the applicant’s right to be elected and exercise powers of the deputy. Under the circumstances of the present case, this measure was incompatible by its very nature with the applicant's right to be elected and to exercise his powers as a parliamentarian and infringed upon the sovereign power of the voters who voted for him.
The case was a violation of Article 3 of Protocol No. 1 to the Convention (adopted unanimously).
Regarding compliance with Article 18 of the Convention in conjunction with Article 5 of the Convention. The complaint under Article 18 of the Convention was a fundamental aspect of the present case and required separate consideration as such.
Of course, Article 18 of the Convention can be considered violated only after overcoming a sufficiently high threshold. However, due to the fact that most of the charges that served as the basis for the applicant’s detention, directly affected the applicant’s political activities as the leader of the opposition party, proper consideration of the present complaint was impossible without taking into account the general political and social context.
However, the consistency of the various elements of the context confirmed the version that Turkish legislation was increasingly used to silence dissent voices. From reports and conclusions of international observers it followed that the tense political climate in Turkey over the past years led to the creation of an environment capable of influencing the decisions of the country's courts, in particular, during a state of emergency. Several persons holding leadership positions in the applicant's party, including those elected as mayors and deputies, were detained in connection with, inter alia, their political statements. Thus, a certain constant was observed.
Moreover, it is difficult to deny that the deprivation of liberty of the applicant, one of the opposition leaders, as well as other deputies of the same party had negative consequences for the “No” campaign, carried out in connection with the project of transition to a presidential system of government, which was, apparently, the most important constitutional reform since the proclamation of the republic in 1923 (the draft was submitted to a popular vote on April 16, 2017).
In addition, the parliament decided to appoint the presidential and parliamentary elections scheduled for 2019 for June 24, 2018 (one and a half years earlier than the stipulated time limit). As for the presidential election, the applicant, who was detained, was among the six candidates for the post.
Thus, even if the applicant's initial detention was due to “convincing reasons” to suspect him of committing crimes, it seemed that the purpose of his detention was also of a political nature. It remained to determine whether this aspect could become dominant after a certain period of time.
In the present case, the investigation took place in several criminal cases against the applicant for several years, but until the end of the “decision-making process”, no significant measures were taken to deprive him of his deputy immunity. From the materials of the case, it was possible to conclude that the investigation into the applicant's case was at least “expedited” after the statements of the President of the Republic and his statements of March 16, 2016, although this investigation began before that point.
As to the nature and degree of reprehensibility of the revealed non-conventional goal, the Court notes that the complaint concerned not only the rights and freedoms of the applicant as an individual, but also the democratic system itself. So the stakes were no doubt very high.
Having regard to the foregoing and, in particular, the fact that the term of the applicant’s detention was extended several times on stereotypical grounds, the Court considers it beyond any reasonable doubt that the data on the extension of the term of the applicant’s deprivation of liberty, in particular, during two important campaigns ( the referendum and presidential elections) pursued the predominantly hidden objective of restricting pluralism and freedom of political debate.
In the case of a violation of the requirements of Article 18 of the Convention (it was adopted by six votes "for" with one - "against").
Regarding compliance with Article 34 of the Convention. Claiming that several different criminal cases were initiated against his lawyers, the applicant regarded this as an attempt to frighten them. However, nothing indicated that these processes were intended to compel the complainant to withdraw or change his complaint or otherwise interfere with the effective exercise of his right to file a complaint, and that they led to such consequences. From the wording of the complaint it follows that the production data are in no way connected with the present case.
The case did not violate the requirements of Article 34 of the Convention (adopted unanimously).
In application of Article 46 of the Convention. The Turkish authorities were ordered to terminate the applicant's detention as soon as possible, unless new reasons or information emerged in the case that would justify his extension.
In application of Article 41 of the Convention. The Court awarded the applicant EUR 10,000 in respect of non-pecuniary damage, the claim for pecuniary damage was rejected.
The European Court also unanimously established that the case did not violate the requirements of paragraph 4 of Article 5 of the Convention due to the length of time for consideration of the complaint before the Constitutional Court of Turkey.