The decision of the ECHR of December 22, 2020 in the case "Selahattin Demirtas v. Turkey (N 2) (Selahattin Demirtas v. Turkey) (N 2)" (aplication N 14305/17).
In 2017, the applicant was assisted in preparing the aplication. Subsequently, the aplication was communicated to Turkey.
The aplication about the unforeseen annulment of parliamentary immunity and the detention of a person on charges of terrorism for political statements was successfully considered in the case. The case involved a violation of the requirements of paragraphs 1 and 3 of article 5, article 10, article 18 (in connection with paragraph 3 of Article 5) of the Convention for the Protection of Human Rights and Fundamental Freedoms, article 3 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms. The case did not violate the requirements of paragraph 4 of article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
THE CIRCUMSTANCES OF THE CASE
The applicant was an elected member of the Grand National Assembly of Turkey (hereinafter also referred to as the Turkish Parliament) and one of the co - chairs of the People's Democratic Party of Turkey, a left-wing pro-Kurdish political party. On May 20, 2016, an amendment was made to the Turkish Constitution, according to which parliamentary immunity was removed from members of the Turkish Parliament in all cases when a request for removal was submitted to the Grand National Assembly of Turkey before the date of adoption of the said amendment. This reform, supported by the Turkish President, was caused by clashes in Syria between the ISIL group (In accordance with the Decision of the Supreme Court of the Russian Federation of December 29, 2014 N AKPI14-1424C the organization is banned in the Russian Federation) and the forces of the organization with ties to the PKK (PKK), serious acts of violence in Turkey in 2014 and 2015, on the eve of the start of negotiations aimed at resolving the "Kurdish issue". The applicant, who in his statements and statements expressed an active position in relation to the mentioned events, was one of the 154 parliamentarians (including 55 members of the People's Democratic Party of Turkey) who suffered from the amendment of the Turkish Constitution under consideration. In November 2016, the applicant was detained on suspicion of membership in an armed terrorist organization and incitement to commit criminal offenses. Following an additional investigation into the aforementioned acts of violence in Turkey, the applicant remained in custody. His parliamentary mandate expired on June 24, 2018.
In a Judgment of 20 November 2018, the Chamber of the European Court decided, in particular, that there had been violations of paragraph 3 of Article 5 of the Convention and Article 18 (considered in conjunction with paragraph 3 of Article 5) of the Convention and a violation of Article 3 of Protocol No. 1 to the Convention. The Chamber of the European Court found that there had been no violation of paragraphs 1 and 4 of Article 5 of the Convention, and did not consider it necessary to consider the complaint of a violation of Article 10 of the Convention. At the request of both parties, the complaint was transferred to the Grand Chamber of the European Court.
(a) A preliminary objection filed under article 35, paragraph 2 (b), of the Convention. The European Court was forced, for the first time since the Decision of the Commission on Human Rights in the case "Lukanov v. Bulgaria" (of January 12, 1995, complaint No. 21915/93), to consider whether a complaint to the Human Rights Committee of Parliamentarians of the Inter-Parliamentary Union (hereinafter referred to as the Committee) can be considered as "another procedure of international investigation or settlement". This term refers to institutions and procedures established by States, thus excluding non-governmental organizations. However, even if a specific mechanism was not created by a non-governmental organization, this does not automatically mean that it could be considered a "different procedure". In this context, the main purpose of the European Court's analysis was to determine whether the proceedings through the mentioned mechanism can be treated, taking into account procedural aspects and potential effects, as a right to file an individual complaint under article 34 of the Convention, and whether this mechanism meets the following criteria. The relevant mechanism should be public, international and judicial or quasi-judicial. The latter criterion necessarily implies that the examination carried out within the framework of such a mechanism has a clearly defined framework and is limited to certain rights and standards based on a legal instrument or "structure" by which States authorize the body using the mechanism to consider complaints filed against States and make decisions on them. This is especially important in the context of analyzing the similarities between such a mechanism and the analysis of the European Court of Justice. In the absence of a legal instrument that properly defines the boundaries of the powers of the relevant body, it will be more difficult for the European Court of Justice to establish the nature and functions of the said body and the obligations of the Member States. The mechanism under consideration should also provide institutional and procedural guarantees, such as guarantees of independence and impartiality in accordance with article 6 of the Convention, as well as provide an adversarial process that gives each party to the dispute the opportunity to receive information about the process and respond to the arguments of the opposite party. The parties to the case must also be notified of the measures taken and the decisions made. The authorized body should respect the right of the parties to participate in the process, for example, by submitting comments on the case. In addition, this body should respond to individual complaints by publishing its decisions and presenting their justifications. This authority should also be able to establish the responsibility of the State in accordance with the legal instrument on the basis of which the relevant authority conducts the examination of the case, and provide legal compensation that can prevent the alleged violation.
The functions of the Committee did not include the consideration of disputes between an individual and the State. In accordance with its statute and procedural rules, the Committee was not supposed to examine the State's compliance with its obligations under a special legal instrument, but rather to prevent possible violations, to stop violations that have already been established and/or to facilitate the State's actions to provide effective compensation for violations by ensuring dialogue with the authorities. In this regard, it cannot be considered that the Committee would carry out a judicial or quasi-judicial procedure similar to that provided for by the Convention.
The preliminary objection of the Turkish authorities, submitted on the basis of subparagraph " b " of paragraph 2 of article 35 of the Convention, was rejected.
(b) Regarding compliance with article 10 of the Convention. There was interference with the applicant's right to freedom of expression due to the application of a set of measures, namely the abolition of the applicant's parliamentary immunity, the applicant's detention and extension of his detention, the initiation of criminal proceedings against him on the basis of evidence that included his political speeches. The intervention was also based on the law that was available, namely, the amendment to the Turkish Constitution and the provisions of the Turkish Criminal Code relating to terrorism-related crimes. The question was, in particular, whether the interpretation and application of Turkish law was predictable at the time when the applicant made statements that became the basis for charging him.
(i) Parliamentary immunity. Article 83 of the Turkish Constitution provides for two types of immunity for members of the Turkish Parliament: non-jurisdiction and inviolability. Non-jurisdiction means freedom of expression of the opinions of members of the Grand National Assembly of Turkey in the sense that they cannot be prosecuted on the basis of their vote or opinions expressed in the Grand National Assembly of Turkey, or the repetition or dissemination of these opinions outside the Assembly, unless the Grand National Assembly of Turkey decides otherwise at a meeting convened on the proposal of the Presidium of the Grand National Assembly of Turkey. The lack of jurisdiction is absolute, does not allow for exceptions, does not allow for investigative actions, and it continues to apply to members of the Turkish Parliament even after their term of office has expired. The repetition of political statements outside the Turkish Parliament cannot be interpreted as limited only to the same words that were used inside the Turkish Parliament.
The contested constitutional amendment did not change article 83 of the Turkish Constitution in the part concerning non-jurisdiction. Members of the Turkish Parliament who were subject to the amendment continued to enjoy legal protection. In this regard, the task of the Turkish authorities and, in particular, the domestic courts was to determine whether the parliamentary jurisdiction extended to the applicant's political statements. The applicant maintained this position from the very beginning of the investigation in his case. However, the European Court is struck by the insufficient consideration of the relevant arguments of the applicant by the Turkish courts of all instances.
Even assuming that the applicant's political statements in question were not subject to the concept of non-jurisdiction, the constitutional amendment itself raised the issue of the predictability of legal norms. Parliamentary immunity protected the elected members of the Turkish Parliament from any detention, detention or indictment during the exercise of their powers, without the consent of the Turkish Parliament. However, after the amendment, the political statements of members of the Turkish Parliament became punishable under Turkish criminal law in the absence of guarantees against appeals for the removal of parliamentary immunity provided by articles 83 and 85 of the Turkish Constitution. In particular, the Turkish Parliament was no longer obliged to assess the individual situation of each member of Parliament affected by this issue. Although the Turkish Parliament has preserved the regime of parliamentary immunity, it has at the same time made it inapplicable to certain members of Parliament on the basis of a text drawn up in general and vague formulations. In this regard, the European Court fully agreed with the unambiguous conclusion of the Venice Commission that this one-time unprecedented ad homines amendment was clearly aimed at specific statements of members of the Turkish Parliament, especially those who belonged to the opposition, and thus it was "an abuse of the procedure for amending the Constitution".
A member of the Turkish Parliament could not reasonably expect that this procedure would be introduced during the exercise of his powers, thus violating the right of members of the Turkish Parliament to freedom of expression. Taking into account the wording of article 83 of the Turkish Constitution and its interpretation or lack thereof by the Turkish courts, the intervention was not predictable.
(ii) Crimes related to terrorism. The applicant was taken into custody, and his detention was extended on the basis of the applicant's statements for crimes related to terrorism, in particular for forming or leading an armed terrorist organization and membership in such an organization (article 314 of the Turkish Criminal Code). The European Court took into account the difficulties associated with the prevention of terrorism and the adoption of anti-terrorist laws. Member States inevitably resorted to general formulations, the application of which depended on their practical interpretation by the judicial authorities. Interpreting the legislation in this context, the courts of the respondent State should have provided individuals with adequate protection against arbitrary interference.
The Turkish Criminal Code did not define the elements of the corpus delicti, which were set out in the case law of the Turkish Court of Cassation. In the present case, the Turkish courts have adopted a broad interpretation of the crimes under consideration. Political statements in which the applicant expressed his disagreement with certain Government policies or simply mentioned that he was a member of the Congress of Democratic Society, a legitimate organization, were sufficient to constitute actions capable of establishing an active link between the applicant and an armed organization. The Turkish courts did not take into account the requirements established by the Turkish Court of Cassation, including the "duration, variety and intensity" of the applicant's actions or the question of whether the applicant committed crimes within the hierarchical structure of the terrorist organization in question. The variety of actions that could justify the applicant's detention in connection with the serious crimes under consideration was so great that the composition of crimes punishable under article 314 of the Turkish Criminal Code, taken together with the interpretation adopted by the Turkish courts, did not provide adequate protection against arbitrary interference by the Turkish authorities. Such a broad interpretation could not be justified if it entailed equating the use of the right to freedom of expression with participation in an armed terrorist organization, its creation or leadership, in the absence of any concrete evidence of such a connection.
The case involved a violation of the requirements of article 10 of the Convention (adopted by 16 votes in favor, with one against).
(c) Regarding compliance with article 3 of Protocol No. 1 to the Convention. (i) General principles. The right to free elections is not limited to the opportunity to participate in parliamentary elections. The interested person also has the right, as soon as he is elected, to sit as a member of Parliament. The rule on parliamentary immunity is of key importance for this guarantee. The European Court had to re-examine the complaint about the violation of Article 3 of Protocol No. 1 to the Convention concerning the consequences of keeping a member of Parliament who won the election in custody as part of the chosen preventive measure for the exercise of his official powers by the specified person. The application of a measure that deprives a member of Parliament or a candidate for a member of Parliament of freedom does not automatically mean a violation of article 3 of Protocol No. 1 to the Convention. Nevertheless, taking into account the importance for a democratic society of the right of a member of Parliament to freedom and inviolability, the courts of the respondent State must demonstrate, using the discretion granted to them, that when making a decision on the detention of a person and/or extending the period of detention of a person, they weighed all relevant interests, including freedom of expression of political opinions by members of the relevant parliament. An important element in the process of establishing a balance of these interests is the question of whether the accusations have a political basis. There must be a remedy by which a member of Parliament can effectively appeal against the measure applied and achieve consideration of his complaints on the merits. In this case, the task of the European Court is to consider the decisions of the courts of the respondent State from the point of view of the Convention, without replacing the decisions of the relevant State authorities with its conclusions.
(ii) The application of the above principles in the present case. As a result of his pre-trial detention, the applicant was unable to exercise his powers in the Turkish legislative authority for more than a year and a half. Although he retained his seat in the Turkish Parliament and could submit questions in writing, the applicant could not freely enjoy the rights granted by article 3 of Protocol No. 1 to the Convention.
The relationship between article 10 of the Convention and article 3 of Protocol No. 1 to the Convention is particularly obvious in cases where a representative of the government elected during democratic elections is detained for expressing his political opinions. It is very important to protect the freedom of representatives of society to express their opinion, especially if this applies to representatives of the opposition. The European Court will always conduct a thorough check to make sure that there has been no interference with the right to freedom of expression, while at the same time being aware of possible restrictions on this freedom, namely, to prevent direct or hidden calls for violence. From this point of view, the European Court decided that if the detention of a member of Parliament cannot be considered in accordance with Article 10 of the Convention, as in the present case, then this procedural action will also violate Article 3 of Protocol No. 1 to the Convention. Moreover, the Court's conclusion that there was no reasonable suspicion that the applicant had committed a crime, as required by paragraph 1 of Article 5 of the Convention (see below), was also important for the purposes of Article 3 of Protocol No. 1 to the Convention. While the duration of pre-detention of a person should, as a rule, be as short as possible, these considerations apply a fortiori to the detention of members of Parliament who represent their constituents, draw attention to the needs of these people and protect their interests.
If the State grants parliamentary immunity from prosecution and deprivation of liberty, the domestic courts must first verify that the members of the relevant parliament do not have parliamentary immunity in relation to the actions of which they are accused. However, it appears that in the present case, the Turkish courts did not conduct such a check, thereby violating their procedural obligation under article 3 of Protocol No. 1 to the Convention. It was also not demonstrated that the domestic courts would have taken actions aimed at achieving the required balance, weighing all competing interests in the case. The Constitutional Court of Turkey did not consider whether the crimes of which the applicant was accused were directly related to his political activities. The Turkish judicial authorities did not take into account the fact that the applicant was not only a member of the Turkish Parliament, but also one of the leaders of the political opposition, and the exercise of his parliamentary powers required a higher level of protection. In addition, it was not explained why it was not enough to apply an alternative preventive measure in the applicant's case. The fact that the applicant did not have the opportunity to participate in the work of the Turkish Parliament while he was in custody was an unjustified interference with the right to freedom of expression and the applicant's right to be elected to the Turkish Parliament and to participate in its meetings. Thus, the applicant's detention under the chosen preventive measure did not correspond to the very essence of the right guaranteed by article 3 of Protocol No. 1 to the Convention.
The case involved a violation of the requirements of Article 3 of Protocol No. 1 to the Convention (adopted unanimously).
(d) Regarding compliance with article 18 of the Convention in relation to article 5 of the Convention. The Court had to consider whether the applicant's pre-trial detention, in the absence of a reasonable suspicion and in violation of Article 5 of the Convention, really had a hidden purpose. The European Court noted the following factors: measures to lift parliamentary immunity were taken only after the elections, as a result of which the ruling party lost its leading position in the Grand National Assembly of Turkey, and the only ones who really fell under the effect of the constitutional amendment under consideration were members of opposition parties. The applicant's detention was not the only example, but on the contrary, apparently, was carried out within the framework of the established scheme. The period of the applicant's detention meant that he was deprived of his liberty, in particular, during two key political campaigns (the referendum on constitutional reform and the presidential elections). The Court also took into account the circumstances of the applicant's remand in custody, when a corresponding decision was issued on the day of his release in another criminal case, as well as the conclusions of other Council of Europe bodies regarding the independence of the Turkish judicial system and the tense political climate that created conditions that could influence the decisions of Turkish courts - especially during the state of emergency, when hundreds of judges were dismissed, in particular with regard to criminal cases against opposition representatives. These factors allowed the European Court to conclude that the objectives of the applicant's detention announced by the Turkish authorities were only a cover for the true motive, namely, to suppress pluralism and restrict the freedom of political debate.
The case involved a violation of the requirements of article 18 of the Convention in connection with article 5 of the Convention (adopted by 16 votes in favor, with one against).
The European Court also ruled (by 15 votes in favor with two against and 16 votes in favor with one against, respectively) that there had been a violation of paragraphs 1 and 3 of Article 5 of the Convention due to the absence of a reasonable suspicion that the applicant had committed a criminal offense that made it necessary to detain him as a preventive measure chosen for him and to extend the specified period of detention. In addition, the Court considered that a claim for compensation under paragraphs "a" and " d " of part one of Article 141 of the Turkish Code of Criminal Procedure could not be considered an effective remedy either in relation to the alleged absence of a reasonable suspicion that a person has committed a crime, or in relation to the alleged absence of relevant and sufficient grounds to justify the detention of a person for the purposes of paragraphs 1 and 3 of Article 5 of the Convention. The European Court also found by 16 votes in favor, with one against, that there was no violation of paragraph 4 of Article 5 of the Convention regarding the issue of compliance by the Turkish Constitutional Court with the requirement of "urgency" according to the reasoning of the Chamber of the European Court and in the light of the special circumstances of the case.
Concerning the application of article 46 of the Convention. The European Court ordered the Turkish authorities to take all necessary measures to ensure the applicant's immediate release from custody.
In the application of article 41 of the Convention. The European Court awarded the applicant 3,500 and 25,000 euros in compensation for material damage and non-pecuniary damage, respectively.