European Court of Human Rights judgment: Case of Selahattin Demirtaş v. Turkey

This morning the European Court of Human Rights released their judgment on the case brought against Turkey by former HDP Co-chair Selahattin Demirtaş. The Court ruled that Turkey has violated the European Convention on Human Rights in its imprisonment of HDP co-chair Selahattin Demirtaş and finds that Turkey must "put an end to the applicant’s pre-trial detention" and pay Demirtaş €25,000 plus tax.

Demirtaş, then co-chair of the Peoples' Democratic Party (HDP), Turkey's second opposition party created by pro-Kurdish groups together with the Turkish left, was arrested on November 4th 2016 along with co-chair Figen Yüksekdağ and thousands of other HDP activists and politicians in dawn raids. Progressives across the world have called for their immediate release, including leaders of the main UK trade unions and members of the UK parliament.

Turkey's violations of the European Convention on Human Rights

The judgment of the European Court relates to Turkey's denial of a proper, timely trial, keeping Demirtaş locked up in pre-trial detention as one-day hearings months apart drag out the legal process. Turkey was found to have violated articles 5 (liberty and freedom) and 18 (relating to violation of article 5, his pre-trial detention used unfairly and not for its stated purpose) and article 3 of Protocol 1 relating to free expression/elections - the HDP were forced to fight a number of elections and referenda with their leaders in jail.

The specific chapter of article 5 violated by Turkey was part 3, that anyone detained in accordance with the law "shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial."

Political motivations of Turkish judiciary

Demirtaş' claim that Turkey had violated article 18 - that there was an ulterior motive in detaining him for so long without a trial - was upheld, supporting his contention that Turkey's legal process was being used to silence him and partaking in "the elimination of the political opposition and the restriction of political debate." Part of the supporting evidence consisted of statements by the European Commissioner for Human Rights, including detail of the judicial war being waged on the HDP: "between July 2015 and January 2018, 3,282 individuals linked to the HDP, including 135 co-chairs of local branches, fifteen members of parliament and 750 party officials at local level, had been arrested in the course of police operations against persons with links to the HDP." 

Crucially, part of the evidence used on Turkey's violation of article 18 related to the political direction of the judiciary. Demirtaş' lawyers showed that in the eight years between 2007 and 24 December 2015, 182 investigations into the HDP had taken place which was then followed by 328 over a 5 month period following the President's speech calling for the lifting of immunity of parliamentarians, which was adopted on 20 May 2016. Either there was a massive HDP crime wave in early 2016 or the investigations had taken place on the President's instructions.

Dissenting judgment of Turkish judge

One of the interesting aspects of the decision is the dissenting opinion of one of the judges, Ayşe Işıl Karakaş. If there is not unanimity in the court's decisions, "dissenting" judges can voice their problems with each judgment that they disagree with. Judge Karakaş disagreed with the Court's decision that Turkey had violated article 18 in conjunction with 5.3, that the pre-trial detention of Demirtaş has been used for reasons other than the stated purpose i.e. that there was political motivation, which therefore brings into doubt the independence of the Turkish judiciary. Karakaş insisted that there was insufficient evidence to indicate a lack of judicial independence. In relation to Erdoğan's pronouncement that parliamentary immunity would be withdrawn being followed by a huge wave of criminal investigations into HDP, Karakaş claimed: "In my view, such statements could only be seen as adequate proof of an ulterior purpose behind the judicial authorities’ decisions, in line with the government authorities’ own agenda, if the Court had found that the Turkish justice system was not sufficiently independent from the executive."

To provide some background to Judge Karakaş, she is a Turkish academic, a professor of law as well as European Court judge. She belongs to a group called the 'Second Republicans' who support the AKP and its political goals.

Arguing against the political motivation behind Demirtaş' detention, Karakaş stated: "In the context of the present case, the applicant’s political activities could be taken into account as part of a contextual analysis. Nevertheless, it is clear from the Court’s case-law that the status of a politician, even one with a leading role, cannot be treated as a guarantee of immunity [...] The mere fact that politicians have been prosecuted or placed in pre-trial detention, even during an election campaign, does not automatically indicate that the aim pursued by such measures was to restrict political debate. [...] I consider that it has not been established beyond reasonable doubt that the main purpose of the applicant’s pre-trial detention was to stifle pluralism or to limit freedom of political debate."

Karakaş dissenting verdict disavowing political control of the Turkish judiciary is interesting in and of itself, particularly when every other judge from a number of different European countries found that there were clear political motivations in Demirtaş' arrest and continued detention - something that campaigners against Turkish authoritarianism have known for a long time.

Although it is unlikely that the Turkish state, which carries out its war on Kurds with impunity, will act on this judgment, it is symbolic in officially affirming once more the clear violations of human rights perpetrated by the Erdoğan regime in Turkey and in pressuring the international community to speak out against the continued imprisonment and political persecution of the HDP.

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