ECtHR orders Turkey to immediately release pro-Kurdish opposition leader

11 January 2021 by

Selahattin Demirtaş delivering a speech in 2016. Photograph: Ozan Köse/AFP/Getty Images. Source: The Guardian

On 22 December 2020, the European Court of Human Rights (“ECtHR”) published a Grand Chamber decision against Turkey, requiring the immediate release of the pro-Kurdish opposition leader Selahattin Demirtaş from pre-trial detention (Selahattin Demirtaş v Turkey, Application no. 14305/17). The ECtHR said that Mr Demirtaş’ detention went against “the very core of the concept of a democratic society” and was in breach of Articles 5, 10, 18 and Article 3 of Protocol 1 of the European Convention on Human Rights (the “Convention”).

The decision is particularly significant given Mr Demirtaş’ high profile status and the numerous cases against Turkey that the ECtHR is now hearing, following the attempted coup in July 2016 and the government’s subsequent crackdown on civil society. Shortly after publication of the judgment, the ECtHR website was subject to a cyber-attack and rendered temporarily inaccessible. A group of pro-Turkish hackers claimed responsibility for the attack via a Twitter post.


In May 2016 the Turkish Grand National Assembly passed an amendment to the Constitution to lift parliamentary immunity in all instances where prior requests had been made to lift it. The explanatory memorandum to the amendment indicated that it was directed at “certain members of parliament” who had “made speeches voicing moral support for terrorism” and who were “abusing their [parliamentary] immunity”.

Mr Demirtaş was one of the members of parliament affected. He was originally taken into pre-trial detention in November 2016 on allegations of membership of an armed organisation (an offence under Article 314 of the Turkish Criminal Code) and of public incitement to commit an offence (prohibited under Article 214 of the Criminal Code). At the time, Mr Demirtaş was the co-chair of the left-wing, pro-Kurdish Peoples’ Democratic Party (“HDP”). The allegations against him were connected with street demonstrations in October 2014. The demonstrations had protested the lack of government action following Islamic State’s attack on the Kurdish town of Kobani, located over the border in Syria. The demonstrations had turned violent. The Turkish prosecutor based its allegations against Mr Demirtaş on certain tweets issued from the HDP Twitter account in October 2014, as well as public speeches by Mr Demirtaş which called for people to attend the demonstrations.

The ECtHR Grand Chamber decision

Protesters during a demonstration in Ankara in October 2014 against attacks launched by Islamic State insurgents targeting the Syrian city of Kobane. Photograph: Adem Altan/AFP/Getty. Source: The Guardian

The ECtHR decision on 22 December 2020 was issued by a panel of 17 judges of the Grand Chamber, following referral from the lower Chamber. The Grand Chamber decided that Mr Demirtaş’ detention was in breach of the following articles of the “Convention”:

  1. Article 10 (freedom of expression): lack of foreseeability

Governments may only interfere with an individual’s right to freedom of expression if the interference is (a) prescribed by law, (b) in pursuit of a legitimate aim, and (c) necessary in a democratic society. One element of the requirement to be ‘prescribed by law’ is for the interference to be sufficiently foreseeable. This means that people should be able to foresee to a reasonable degree the consequences which their actions may entail. 

The ECtHR noted that Turkish courts had in other cases imposed liability for membership of an armed organisation on the basis of a very broad range of acts, and often on very weak evidence. It said that, in deciding to detain Mr Demirtaş’, the Turkish courts had failed to consider whether his parliamentary immunity had in fact been effectively lifted. The ECtHR also said the Turkish courts had failed to take into account their own case law regarding what evidence is required to demonstrate “membership of an armed organisation”. For these reasons, the ECtHR held that the Article 314 of the Turkish Criminal Code does not afford adequate protection against arbitrary interference by the national authorities. The interference with Mr Demirtaş’ freedom of expression was not sufficiently foreseeable so as to be adequately ‘prescribed by law’.

  1. Article 5 (liberty and security of person): no reasonable suspicion for detention

The ECtHR found that neither the HDP’s tweets, nor Mr Demirtaş’ speeches, could be construed either as a call to violence or as a direct cause of the violence which took place. It held that there was no clear link between the statements Mr Demirtaş made and the offences for which he was detained: therefore he had been detained without reasonable suspicion in breach of Article 5.

  1. Article 3 of Protocol 1 (right to free elections)

The ECtHR held that the effect of Mr Demirtaş’ detention was to prevent him from exercising his right to be elected and to sit in the National Assembly.

  1. Article 18 (rights not to be restricted for an ulterior purpose)

The ECtHR found that Mr Demirtaş’ detention, which continued during two referendum campaigns and a presidential election, pursued the ulterior purpose of stifling pluralism and limiting freedom of political debate. 


The Grand Chamber’s decision is significant not only because of Mr Demirtaş’ prominence as an opposition leader. According to Amnesty International, since the attempted coup 2016, Turkey has detained more than 10,000 people, including members of opposition parties. The EtCHR has already made findings against Turkey in a number of cases, including for breaches of Article 5 of the Convention for the pre-trial detention, without reasonable suspicion, of journalists (Mehmet Hasan Altan v. Turkey (application no. 13237/17); Şahin Alpay v. Turkey (application no. 16538/17)), judges (Alparslan Altan v. Turkey (application no. 12778/17); Baş v. Turkey (application no. 66448/17)) and a businessman involved in various human rights NGOs (Kavala v. Turkey (application no. 28749/18)). 

The Demirtaş’ judgment will add to the growing body of precedents on which future applicants may seek to rely. As Ahval News notes, the judgment is of particular legal significance for its finding that Article 314 of the Criminal Code does not provide sufficient foreseeability for the purposes of Convention Articles 10 and 5. In recent years, Turkey has increasingly relied on Article 314 as the basis for detaining opposition activists and those it perceives as adverse to the government’s interests. 

The extent to which Turkey will comply with the ECtHR’s ruling remains to be seen.

Further reading

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals Anne Sacoolas anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board care homes Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus coronavirus act 2020 costs costs budgets Court of Protection covid crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy diplomatic relations disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control hague convention Harry Dunn Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy procurement Professional Discipline Property proportionality prosecutions prostituton Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation refugee rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism The Round Up tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Weekly Round-up Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: