Last Updated on May 11, 2019 by LawEuro
Information Note on the Court’s case-law 227
March 2019
Selahattin Demirtaş v. Turkey (no. 2) (referral) – 14305/17
Judgment 20.11.2018 [Section II]
Article 3 of Protocol No. 1
Free expression of the opinion of the people
Stand for election
Member of parliament excluded from parliamentary proceedings as a result of his prolonged pre-trial detention without sufficient justification: case referred to the Grand Chamber
Article 18
Restrictions for unauthorised purposes
Member of parliament prevented from discharging his duties as a result of his prolonged pre-trial detention, for the alleged purpose of stifling pluralism: case referred to the Grand Chamber
During the summer of 2015, deadly acts of violence attributed to the PKK (Workers’ Party of Kurdistan) in conjunction with the situation in Syria prompted the authorities to respond by ending the process initiated in 2012-13 for finding a peaceful solution to the Kurdish question. The applicant, who was co-chair of the HDP (a left-wing pro-Kurdish party), was re-elected as a member of the National Assembly in November 2015 for a four-year term. In various speeches in 2015 and 2016 the President of Turkey vowed that HDP members of parliament should “pay the price” for recent deadly events for which he held them responsible. Following a constitutional amendment on the subject of parliamentary immunity, 154 members of parliament (including 55 from the HDP) had their immunity lifted. Fifteen opposition members of parliament (including fourteen from the HDP) were placed in pre-trial detention. The applicant was arrested in November 2016 on suspicion of leading an illegal organisation and making statements encouraging terrorism. He has been in pre-trial detention since then.
In a judgment of 20 November 2018 (see Information Note 223) a Chamber of the Court held unanimously, in particular:
– that there had been no violation of Article 5 § 1, as the applicant had initially been placed in pre-trial detention on reasonable suspicion of having committed an offence; but that there had been a violation of Article 5 § 3, as the courts had not given relevant and sufficient reasons for concluding that there was a risk of absconding and that no alternative measures to detention were possible;
– that there had been a violation of Article 3 of Protocol No. 1, finding that although the applicant had retained his status as a member of parliament and his corresponding salary, his exclusion from the activities of the National Assembly constituted an unjustified interference with the free expression of the opinion of the people and with his right to fulfil the mandate for which he had been elected;
and by six votes to one:
– that there had been a violation of Article 18 in conjunction with Article 5 § 3, finding it established beyond reasonable doubt that the applicant’s prolonged detention in the political context of the time had pursued the predominant ulterior purpose of stifling pluralism and limiting freedom of political debate.
Having regard to those conclusions, the Court did not consider it necessary to also examine the case under Article 10 of the Convention.
On 18 March 2019 the case was referred to the Grand Chamber at the request of both parties.
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