Why is Selahattin Demirtaş in Jail?
HDP’s (Peoples’ Democratic Party) former Co-Chairperson Selahattin Demirtaş was taken under police custody on 4 November 2016 early in the morning from his home in Diyarbakır. Diyarbakır Criminal Peace Judgeship ruled for his pre-trial detention on the same day and he has been incarcerated in Edirne F-Type High Security Prison since.
Selahattin Demirtaş is not the only politician to be arrested, detained, prosecuted and faced imprisonment sentences during this process. HDP’s former Co-Chairperson Figen Yüksekdağ and 11 other deputies were taken under custody on various dates based on investigations conducted separately, some of whom were detained and sent to various prisons far away from their family homes. İHD’s special report on the prison visits to detained deputies and mayors can be consulted on this matter.
In order to lift the unjust arrest and detention orders handed down to himself, Selahattin Demirtaş launched objections firstly before the competent criminal peace judgeship at the investigation stage, then before the Ankara 19th Heavy Criminal Court that held the trials at the prosecution stage to end his detention. When these remedies proved to be ineffective, he launched an individual application before the Constitutional Court. Before the European Court of Human Rights’ (ECtHR) judgment was announced, the Constitutional Court held that the rulings passed by the domestic judicial authorities were indeed constitutional.
The ECtHR’s Selahattin Demirtaş v. Turkey judgment (app. no. 14305/17) was announced on 20 November 2018. In this judgment the court held that there had been a violation of Article 5 § 3 of the European Convention on Human Rights (ECHR) (the right to trial within a reasonable time or to release pending trial), Article 18 of the Convention in conjunction with Article 5 § 3 (the restrictions permitted under the Convention to the said rights and freedoms cannot be applied for any purpose other than those for which they have been prescribed) and Article 3 of Protocol No. 1 to the Convention (the right to free elections) regarding Selahattin Demirtaş’s detention. This judgment proves to be the first of its kind within the scope of which Turkey was found to have violated Article 18 of the ECHR.
Although Selahattin Demirtaş should have been released in compliance with the ECtHR judgment, the Ankara 19th Heavy Criminal Court did not rule for his release on 30 November 2018 arguing that the ECtHR judgment was not legally binding on the grounds that it was not finalized. Then, 4 years and 8 months of imprisonment sentence handed down by the İstanbul 26th Heavy Criminal Court within the scope of another file was upheld on 4 December 2018, merely within 40 days, by İstanbul Regional Court of Appeals’ Second Criminal Chamber. Demirtaş became a convicted prisoner by this upholding ruling. HDP’s former Ankara Deputy Sırrı Süreyya Önder facing trial along with Mr. Demirtaş was also detained because of the imprisonment sentence handed down to him.
Mr. Demirtaş’s attorneys launched an application before the ECtHR on 19 February 2019 requesting a revision of the case regarding the rights that the ECtHR’s Second Section had not evaluated, found no violation and declared inadmissible. The government, too, appealed the case requesting a revision of violation rulings passed by the Second Section. Thus the case was referred to ECtHR’s Grand Chamber which will hear the case on 18 September 2019.
Ankara 19th Heavy Criminal Court, which had not ruled for Mr. Demirtaş’s release in spite of the ECtHR Second Section’s judgment, ruled for his release within the scope of the main case he has been standing trial merely two weeks before the hearing at the Grand Chamber. The prosecutor’s office objected to the release verdict passed on 2 September 2019 before Ankara 20th Heavy Criminal Court but this objection was overruled on 10 September 2019. Selahattin Demirtaş is now eligible for supervised release within the framework of this latest verdict after the deduction of the period of time he spent in detention from his finalized imprisonment sentence of 4 years and 8 months.
Turkey, unfortunately, is trying to create the impression before the ECtHR with these verdicts that the judiciary in Turkey is independent and impartial, acts in accordance with international human rights conventions, and that the Constitutional Court is an effective remedy. Moreover, it has been doing so by providing for the courts to take the longest time possible to pass verdicts and maintaining cases of victimization for as long as possible.
What this verdict signifies is that Mr. Demirtaş was detained on political grounds and the restrictions in the ECHR were abused when one takes into account that he was the co-chairperson of a political party and an elected deputy. It would suffice to mention, in addition to the Demirtaş verdict, the Constitutional Court’s violation judgment in the case of Zübeyde Füsun Üstel and others (2018/17635) and recent acquittal verdicts in Academics for Peace trials. The judiciary in Turkey has been restricting human rights and freedoms to the point that there remains no more elbow room, no more opportunities to act.
İHD released a statement on 21 November 2018 on the ECtHR’s Selahattin Demirtaş v. Turkey judgment and what its repercussions in Turkey would signify. As we have indicated before, ECtHR’s judgments referring to the domestic laws in Turkey, particularly during the state of emergency, had greatly disappointed us all. Yet, the ECtHR’s Demirtaş judgment revealed the fact that domestic remedies in Turkey were not effective. Today the judicial system in Turkey and the function of the Constitutional Court beg to be deliberated. If the Constitutional Court will abide by the ECtHR’s case law, it should play its role forthwith and take pains to pass timely judgments in line with the ECtHR’s case law and to remedy cases of victimization. Further, first instance courts should not resign themselves to political pressure in cases related to the exercise of human rights and freedoms, and act in accordance with international standards.
Why have elected deputies like Selahattin Demirtaş and elected mayors like Gültan Kışanak been imprisoned since 2016? İHD is of the opinion that they have been subjected to discrimination due to their political activities and faced feindstrafrecht, or enemy criminal law. This conduct should immediately be dropped and all political prisoners should be released.
İHD, hereby, invites all international human rights organizations to monitor the ECtHR Grand Chamber’s hearing on 18 September 2019.
Human Rights Association