The European Court of Human Rights (ECHR) has assessed the appeal of Selahattin Demirtaş, former HDP Co-chair who has been on remand since November 2016, and ruled that several rights recognized by the European Convention on Human Rights have been violated.

The ECHR accepted the appeal regarding Demirtaş’s imprisonment and ruled that the appeal was admissible based on the Article 18 of the ECHR. The ruling pointed out that Demirtas won’t be able to access any legal supervision in the near future through the Constitutional Court.

Article 18 of the ECHR says, “The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.”

The court rejected the claim that Demirtaş’s imprisonment goes against Turkish law, and pointing out that the continuation of arrest is not based on reasonable cause, ruled that he be released. The ruling cited that the Article 5/3 of the ECHR that regulates the “right to freedom and security” has been violated.

ECHR judges also cited Demirtaş’s comments during the demonstrations in support for the Kobanê resistance in 2014 and stressed that Demirtas did not commit a crime. The ruling demands that the Turkish state take necessary precautions to end Demirtaş’s arrest.

The court sentenced Turkey to pay 10.000 Euros of immaterial compensation and a further 15.000 Euros for court and other costs.

The press release on the detailed ruling stressed that Turkey is in violation of several articles of the European Convention on Human Rights and that “democracy is under threat”. There is also an implication that Demirtaş’s imprisonment served the secret aim of preventing the “No” vote in the 2017 referendum.

THE PUBLIC’S RIGHT TO EXPRESS OPINIONS IN THE PARLIAMENT VIOLATED

The ruling stated that the reasons submitted by Turkish courts regarding the continuation of Demirtaş’s arrest are “insufficient”, and stressed that the public’s right to express opinions in the parliament through Demirtas was violated. Mentioning that Demirtas was a member of parliament since the time of his arrest until the June 24 elections, the court ruled that “the right to free speech for the public” that Demirtas represents was violated due to his arrest.

The ECHR ruling also pointed out that Demirtaş’s right to be elected and to conduct MP duties was also taken away.

SECRET AIM IN THE REFERENDUM AND ELECTIONS TO SMOTHER PLURALISM

The court also pointed out that with Demirtaş’s arrest, the AKP government had “undeclared aims” for the 2017 referendum and 2018 presidential elections. The ruling stressed that the Turkish government wanted to “smother pluralism” and restrict the arena of free political discussion that constitutes the essence of a democratic society.

The court had also included Turkish President Erdogan’s comments throughout the trial. Erdogan had threatened the HDP after the support for the Kobanê resistance and the election defeat in 2015, and gave signals that the MPs would first lose their immunity and then be eliminated through the judiciary.

QUOTES OF ERDOGAN’S ORDERS FOR POLITICAL ELIMINATION

The ECHR ruling also cited Erdogan’s speeches ordering the elimination of Kurdish politics and forces of democratic politics in general, starting with the HDP, through the parliament and the judiciary. Some of Erdogan’s comments quoted by the ruling are as follows:

- “I don’t believe it is right to shut down parties. But I do think the administrators of this party should pay for this incident. Person by person, individual by individual.” (July 28, 2015)

- “We must finalize the issue of immunities at once. The parliament must take rapid action. Would it affect one person, two people? We must put forth the principle. And what is that principle? How could it be that those who forced my Kurdish brothers onto the streets and caused the death of 52 people won’t stand trial but strut around in the parliament, and those who say they have the PKK, the PYD, the YPG behind them would be clean? If the Parliament doesn’t do what is necessary, this nation, and history, will hold this parliament to account.”(March 16, 2016)

The court rejected Demirtaş’s lawyers’ claim that his arrest in general goes against Article 5 Section 1 of the ECHR, and argued that there are many allegations against Demirtas and as these allegations may be “connected to terrorism”, temporary detention does not go against the ECHR. However, the stress was on the severe allegations in indictments prepared by prosecutors against Demirtas, and the court did not comment on the “crimes” themselves.

“COURTS SHOULD HAVE INCLUDED CONVINCING REASONS FOR ARREST”

The ruling pointed out that Turkish courts tend to “automatically prolong remand” for arrestees and stated that this practice goes against Article 5 Section 3 of the ECHR. The ruling also said the Turkish judiciary uses nonsensical excuses like “flight risk”, “tampering with evidence” and “influencing testimony”, and stressed that before an arrest is issued to restrict individual fredoms and deprive the person of their liberty, “certain acts” should be “put forth in a convincing manner”.

The ruling also stressed that the severty of the allegations against Demirtas and the length of the sentence the prosecutors demand cannot be used as an excuse to prolong remand.

The court also rejected the appeal that Article 5 Section 4 was violated when Demirtaş's appeal to the Constitutional Court wasn’t resolved “in a timely manner”, citing that the Constitutional Court’s case load increased significantly following the July 2016 “coup attempt” and Demirtaş’s appeal was responded to in 13 months.

“THE RIGHT TO BOTH BE ELECTED AND CARRY OUT DUTIES”

The detailed ruling on Selahattin Demirtaş’s appeal based on Article 3 of the Protocol No.1 of the ECHR pointed out that the right to participate in elections, the right to vote and to be elected are not enough by their own and that all persons also have the right to carry out their duties as members of the parliament if elected, stressing that Demirtas was prevented from participating in Parliamentary activities between November 2016 and June 2018.

The ruling said the arrest does not go against Turkish law, however, the judges who ordered the arrest should have given “top level protection” for Demirtas, as he is both a member of parliament and an opposition leader. The ruling also said Turkish judges failed to present serious reasons for Demirtaş’s long term arrest, and mentioned the judge who annotated the Constitutional Court’s previous ruling regarding Demirtas, adding that follow up or parole solutions that could have posed alternatives to imprisonment were not considered at all, which has prevented Demirtas from fulfilling his duties as a member of parliament.

The ruling stated that the prolonged arrest of Demirtas constitutes a violation for the public to express their opinions and the reasoning for this violation is “insufficient.”

ATMOSPHERE IN TURKEY AT A LEVEL TO AFFECT THE JUDICIARY

Another significant point in the ECHR ruling was the open statement of the effect of Turkey’s political atmosphere on the judiciary.

The ruling cited views from various international observers and reports by the Council of Europe Commissioner for Human Rights as a basis, and stated that the “tense political atmosphere of recent years can influence verdicts issued by the national judiciary.” There is a stress on the harsh verdicts issued by judges against several other HDP MPs, mayors and “dissenting voices in general”, as well as Demirtas.

DEMOCRATIC SYSTEM THREATENED

Some of the harshest comments in the ECHR ruling are those that state the issue is not just the individual rights violations Demirtas has faced. “Our court is of the opinion that it is not Demirtaş’s rights as an individual that have been threatened, but the democratic system itself,” said the ruling and pointed to the AKP government’s “hidden aims” regarding the referendum and the elections.

The detailed ruling acknowledges that the Turkish government aims to “smother pluralism” and “restrict the arena of free political discussion that constitutes the essence of a democratic society”, and states that Article 18 and Article 5 Chapter 3 have both been violated as such.