Council of Europe calls for the immediate release of Demirtaş, Yüksekdağ and Kavala

The Council of Europe’s Committee of Ministers reiterated their call for the immediate release of the HDP co-chairs and politicians, and philanthropist Osman Kavala.


The Council of Europe’s Committee of Ministers has published the case-by-case decisions taken during the Committee’s meeting from 12 to 14 March to supervise the implementation of judgments and decisions from the European Court of Human Rights.

The Committee of Ministers adopted 40 decisions concerning 21 states during the meeting. Twenty-six Final Resolutions were adopted by the Committee in respect of 51 judgments and decisions from the European Court, concerning 20 different states.

The decisions taken by the Committee include the case of Selahattin Demirtaş, former co-chair of the Peoples’ Democratic Party (HDP) who has been behind bars in Turkey since 4 November 2016. The case concerns the arrest and pre-trial detention of, and criminal proceedings against Demirtaş, as well as the lifting of the parliamentary inviolability by the Constitutional amendment of 20 May 2016 of the applicants, 13 HDP Members of Parliament, including the other HDP co-leader at the material time, Figen Yüksekdağ Şenoğlu. 

The Court found that the applicants, elected members of the National Assembly at the relevant times, were detained in the absence of evidence to support a reasonable suspicion they had committed an offence and that their arrests and pre-trial detention pursued an ulterior purpose; that the lifting of the applicants’ parliamentary immunity and the way the criminal law was applied to penalise them for political speeches were not foreseeable and prescribed by law (Article 10) and that their consequent detention made it effectively impossible for them to take part in the activities of the National Assembly; further recalled that in the Yüksekdağ Şenoğlu and Others case the Court also found a violation of the right to a speedy decision on the lawfulness of detention on account of the use of stereotyped reasoning by domestic court in denying access to the investigation file.

As regards individual measures, The Deputies

-  noting the reasoning of the authorities that the new evidence and allegations against both applicants examined in the Assize Court proceedings are substantially different from that assessed by the European Court in its judgments, considered that further information is needed before the Committee can make its decisive assessment on the individual measures required to remedy the violations found by the Court; deeply regretted therefore that, despite the Committee’s repeated calls, the Constitutional Court had still not examined Mr Demirtaş’s complaint, pending before it since 7 November 2019;

-  strongly urged, once again in the case of Mr Demirtaş, the authorities to ensure that the Constitutional Court completes its examination of both applicants’ complaints without further delay and with full regard to the Court’s findings in both cases, particularly its reasoning under Article 18 of the Convention;

- strongly urged the Turkish authorities once again, to ensure the applicants’ immediate release, for example, by exploring alternative measures to detention pending the completion of the proceedings they initiated before the Constitutional Court;

- reaffirmed its readiness to ensure the implementation of the judgments; decided to resume the examination of this group at its 1501st meeting (June 2024) , and instructed the Secretariat to prepare a draft interim resolution for its consideration if the situation remains unchanged;

As regards general measures, The Deputies

- stressed the importance of the States’ positive obligation to create a favourable environment where different and alternative ideas can flourish and urged, once again, the authorities to adopt concrete legislative and other measures capable of strengthening freedom of political debate, pluralism, and the freedom of expression of elected representatives, including in particular safeguards protecting and respecting parliamentary immunity of elected representatives of the opposition parties;

- invited the authorities to provide detailed information on the steps taken by the domestic courts to safeguard the rights of elected representatives in the context of criminal proceedings, and also on any measures envisaged or taken to spread awareness among the judiciary on the need to carry out such balancing exercises as indicated in the Selahattin Demirtas No. 2 judgment;

- further invited the authorities to provide information on the number of parliamentarians who are currently subject to a request for lifting of their immunity as well as those who are subject to criminal proceedings, with details on the reasoning provided to initiate either one of the proceedings;

- decided to re-examine the general measures at their 1507th meeting (September 2024)

The deputies also adopted a decision on philanthropist Osman Kavala, who was sentenced to aggravated life imprisonment for “conspiracy” in a fabricated political trial for his alleged role in the 2013 protests over development plans for Istanbul’s Gezi Park. 

The Deputies recalled that the applicant’s arrest and pre-trial detention took place in the absence of evidence to support a reasonable suspicion he had committed an offence and pursued an ulterior purpose, namely to silence him and dissuade other human rights defenders; and that the one year and nearly five months taken by the Constitutional Court to review his complaint was insufficiently “speedy”, given that his personal liberty was at stake; together with the Court’s indication under Article 46 of the Convention that any continuation of the applicant’s pre-trial detention would entail a prolongation of the violations of Article 5 § 1, and of Article 18, as well as a breach of the obligations on the respondent State to abide by the Court’s judgment in accordance with Article 46 § 1, of the Convention, and that in consequence Turkey was required to take all necessary measures to put an end to the applicant’s detention and to secure his immediate release. The deputies strongly exhorted the authorities to take all steps in their power to ensure the use of all available judicial or other means to ensure the applicant’s immediate release, including the rapid examination by the Constitutional Court of the applicants’ pending applications, with full regard to the Court’s findings, particularly its reasoning under Articles 18 and 46 § 4 of the Convention, and  underlined the need also for constructive, results-orientated dialogue at all levels to obtain concrete results in the applicant’s situation, and to this end encouraged the Turkish authorities, member and observer States and observer Organisations, to maintain and deepen their dialogue within the spirit of the Reykjavik Declaration. The Deputies underlined with deepest concern that, given the exceptional nature of the Court’s findings in its two judgments in this case, until Mr Kavala is released, Turkey remains in serious breach of its obligations under the Convention and the principles of the rule of law.