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.

Background

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. 

Comments

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.

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