21 November 2018
All the Elected Persons Should Be Released
HDP’s former co-chairpersons Selahattin Demirtaş and Figen Yüksekdağ were arrested early in the morning along with 11 other deputies and were placed in pre-trial detention on 4 November 2016 based on different investigations and were sent to various prisons far away from their family homes. The report issued by the IHD headquarters can be consulted on this matter.
Selahattin Demirtaş firstly submitted his objections before the competent Magistrates’ Court at the investigation stage and later on before the Ankara 19th Assize Court undertaking the trial at the proceedings stage in order to secure the lifting of the unjust arrest and detention orders placed against him. Upon observing that these remedies were not effective, he filed an application before the Constitutional Court of Turkey. Subsequently he lodged an application before the European Court of Human Rights (ECtHR) as no ruling was issued by the Constitutional Court within a reasonable time. The Constitutional Court held, before the ECtHR judgment, that the rulings of national judicial authorities were constitutional.
ECtHR’s Selahattin Demirtaş v. Turkey judgment (no. 14305/17) was issued on 20 November 2018. The court concluded in this judgment that Turkey had violated Article 5 § 3 of the European Convention on Human Rights (ECHR) (the right to entitlement to trial within a reasonable time and to release pending trial), Article 18 of the Convention (limitation on use of restrictions on rights, i.e., the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed), and Article 3 of the Protocol No. 1 to the Convention (the right to vote and hold office) with regards to Selahattin Demirtaş’s pre-trial detention. This judgment proves to be the first of its kind in which Turkey was found to have violated Article 18 of the Convention.
Having had regard for the fact the applicant to the ECtHR was the co-chairperson of a political party and an elected deputy, this judgment signifies the fact that he was detained on political grounds and the limitations set forth in the Convention were misused. The following points should be put forward in this case:
- The political power’s undertaking arrest and detention operations against a political party (HDP) by means of the judiciary is a direct interference into democratic politics. Suspension of the guarantees enshrined in the Constitution and infringement of the Constitution are at stake.
- The legitimacy of the Constitutional referendum of 16 April 2017 and the general elections for the presidency and membership in the parliament that were held in Turkey under conditions where the elected deputies, including the co-chairpersons, and mayors of a political party were detained, is therefore compromised.
- Selahattin Demirtaş, who was a presidential candidate for HDP in the presidential elections of 24 June 2018, was not able to conduct an election campaign because of his pre-trial detention and this fact, in turn, compromised the presidential elections as well.
- Turkey is a party to the ECHR and has ratified the jurisdiction of the ECtHR. Under Article 90 of the Constitution, failure to comply with ECtHR judgments constitutes an offense as prescribed by Article 257 of the Turkish Penal Code. Further, Article 46 of the ECHR provides that the high contracting parties of the Convention undertake to abide by ECtHR judgments which are binding. The refusal to abide by ECtHR judgments may also result in Committee of Ministers’ taking measures against the high contracting party.
- Under Article 138 of the Constitution, no one may give orders or instructions to courts or judges and compliance with court rulings is mandatory.
Selahattin Demirtaş should be released duly performing what is called for in this ECtHR judgment without delay. IHD would also like to state that elected former and new deputies, mayors, provincial assembly members, and city councilors currently under detention should immediately be released as this judgment sets a precedent to this end as well.
ECtHR judgments, particularly those that referred to the Turkish domestic law during the state of emergency, had left many a person utterly disappointed. The ECtHR judgment reveals the fact that Turkish domestic law is ineffective. The function of the Constitutional Court should also be called into question in this case. If the Constitutional Court will abide by the case-law of the ECtHR, it should take on its role forthwith and should especially pay careful attention to passing judgments in compliance with the said case-law in politically sensitive applications lodged before it.
HUMAN RIGHTS ASSOCIATION