A Judgment to Be Reckoned with: Demirtaş v. Turkey (no. 2) [GC] and the ECtHR’s Stand Against Autocratic Legalism

By Ezgi Yildiz, Project Lead and Postdoctoral Researcher at the Global Governance Centre, the Graduate Institute, Geneva

The recent Demirtaş v. Turkey (no. 2) [GC] judgment (application no. 14305/17) stands out not only for its substance but also its tone. The judgment provides an unequivocal solution to the protracted political crisis in Turkey concerning the fate of Selahattin Demirtaş and other opposition politicians and dissidents in general. It highlights the ulterior political purposes behind Demirtaş’s deprivation of liberty and therefore orders his immediate release. It, thus, sends a strong and an unambiguous message to the Turkish government to grant freedoms that political dissidents should normally enjoy in a democratic society run by rule of law. But, beyond this crucial point, the judgment also demonstrates the true potential of the Court to challenge the use of domestic laws and institutions to silence opposition and suffocate pluralism – an “autocratic legalism” practice that is also widely used in other autocratic or autocratic-leaning countries in Europe. For these reasons alone – albeit not the only reasons – this an important and much-needed ruling.

The judgment indeed became a focus of attention and spurred strong reactions as soon as it was issued on 22 December 2020. The same day it was delivered, the Court was subjected to a large-scale cyber-attack, rendering its website temporarily inaccessible (official statement of Council of Europe here). It also received an immediate rejection from the President Erdoğan, who claimed that the judgment is not binding on Turkey.[1] On 21 January 2020, the European Parliament called on Turkey to implement this judgment without any delay, and on the Committee of Ministers of Council of Europe to take appropriate measures to ensure a speedy implementation.

The political and the legal implications of the case were discussed earlier (here and here). This blog post will, therefore, take a closer look at the judgment itself – except the separate opinions that will be discussed in an upcoming Strasbourg Observers’ post.

Facts

The case concerns Selahattin Demirtaş, the co-chair of the second largest opposition party in Turkey, Kurdish Peoples’ Democratic Party (HDP). Demirtaş was arrested on 4 November 2016, and was placed in pre-trial detention for ‘membership of an armed terrorist organization and public incitement to commit an offence’ (para. 72). At the time of his arrest, Demirtaş was an elected member of the National Assembly. Therefore, under normal circumstances, he would have enjoyed parliamentary immunity (non-liability). What made his pre-trial detention possible was a 20 May 2016 constitutional amendment that allowed lifting parliamentary immunity. This meant that statements of elected members could be subject to criminal investigations. On the surface, this constitutional amendment might appear a neutral change solely concerned with ensuring that no bad deeds go unpunished. However, it was applied in a targeted manner in order to suppress opposition parties. Out of 550 National Assembly members, the immunity of 154 members were lifted – including 59 members from the Republican People’s Party (CHP) and 55 from the HDP. In the end, 14 members from the HDP, including Demirtaş, and 1 member from the CHP, were subjected to criminal investigations and were placed in pre-trial detention (para. 56-57).

Demirtaş filed several complaints before the Turkish Constitutional Court, challenging the lawfulness of his pre-trial detention (paras 96-106; paras 120-128). In the meantime, he was the subject of multiple criminal investigations. Immediately after he was released on one account, he was placed in pre-trial detention for a separate criminal investigation on 20 September 2019 (paras 108-119). Until today, the applicant remains in prison.

Judgment

The origin of the Grand Chamber judgment goes back to an application filed by Selahattin Demirtaş on 20 February 2017. A Chamber of the Second Division delivered a judgment on 20 November 2018. Both the respondent State and the applicant requested a referral to the Grand Chamber on 19 February 2019. On 22 December 2020, the Grand Chamber issued the judgment discussed here.

The Grand Chamber and the Chamber (the summary of the Chamber judgment can be found here) agreed on the following accounts:

• no violation of Article 5(4) (concerning lack of speedy judicial review by the Turkish Constitutional Court);
• violation of Article 3 of Protocol No. 1 (right to free elections).

The Grand Chamber differed from the Chamber on three accounts:

• First, the Grand Chamber ruled on Article 10 (freedom expression) and found a violation (by 16 to 1 votes). The Chamber had found it unnecessary to rule on Article 10.
• Second, the Grand Chamber found a violation of Article 5(1)c (right to liberty and security – lawful arrest or detention on reasonable suspicion) (by 15 to 1 votes). The Chamber had found that the applicant’s initial pre-trial detention, dating 4 November 2016, followed the domestic legislation, and that he was detained under ‘reasonable suspicion’. The Grand Chamber departed from this view and established that there was no reasonable suspicion justifying either his first pre-trial detention or his return to pre-trial detention for a separate criminal investigation.
• Third, the Grand Chamber established that there were ulterior political motives behind the entire Demirtaş detention saga under Article 18 (limitation on use of restrictions on rights), and ordered Demirtaş’s immediate release under Article 46 (binding force and execution of judgments). The Chamber had adopted a less forceful approach. It only found a political motive behind Demirtaş’s continued detention and established that the applicant’s pre-trial detention should be ended ‘at the earliest possible date, unless new grounds and evidence justifying his continued detention are put forward’. (Chamber judgment, para 283).

The Chamber vs Grand Chamber: A Comparative Analysis

These three key differences in reasoning deserve a closer attention, which is what the rest of this blogpost will focus on.

First, while the Chamber curiously decided not to rule on the admissibility or the merits of the applicant’s Article 10 claim, the Grand Chamber examined it closely. It evaluated whether the applicant was deprived of his liberty due to his political speeches and found that the constitutional amendment aimed ‘to limit the political speech of the members of parliament in question, including the applicant’ (para. 246). The Grand Chamber then assessed whether the interference with his freedom of expression could have been ‘prescribed by law’ (paras 256-282). While doing so, it fully subscribed to the Venice Commission’s assessment about the way in which the constitutional amendment procedure had been misused in order to make the immunity protection available only to some, but not to others. The Grand Chamber described the amendment as ‘one-off ad homines’ – aimed at singling out the members of the opposition parties (para 269). Inasmuch as the post-amendment immunity regime in place was erratically applied, the interference with Demirtaş’ freedom of expression that resulted from such unequal application was not foreseeable and could therefore not be considered as prescribed by law. Since ‘the applicant could legitimately expect to enjoy the benefit of the constitutional legal framework in place, affording the protection of immunity for political speech and constitutional procedural safeguards,’ (para 270) the Grand Chamber concluded that Demirtaş’ pre-trial detention had violated Article 10 of the Convention for not passing the legality test.

The Grand Chamber then assessed the domestic legal instruments concerning terrorism-related offences as applied in this case. Once again, following the Venice Commission’s findings about the Turkish Criminal Code, it pointed out that the relevant provisions (i.e. Articles 216, 299, 301 and 314) had broad definitions and that domestic courts often rely on ‘very weak evidence’ when determining whether a person is a member of an armed group (para 280). However, it did not stop there. It also strongly criticised the way in which domestic authorities determine terrorism-related offences by observing that:

‘The range of acts that may have justified the applicant’s pre-trial detention in connection with serious offences punishable under Article 314 of the Criminal Code is so broad that the content of that Article, coupled with its interpretation by the domestic courts, does not afford adequate protection against arbitrary interference by the national authorities. In the Court’s view, such a broad interpretation of a provision of criminal law cannot be justified where it entails equating the exercise of the right to freedom of expression with belonging to, forming or leading an armed terrorist organisation, in the absence of any concrete evidence of such a link’ (para 280).

The second point, where the Grand Chamber departed from the Chamber, concerned Article 5(1)c (i.e. the lawful arrest or detention of a person on reasonable suspicion of having committed an offence). After having averred that it is not up to the Chamber to determine ‘whether the applicant is guilty of the offences of which he has been accused’, the Chamber had concluded the plausibility of reasonable suspicion. More specifically, concerning the applicant’s initial pre-trial detention, the Chamber had stated that the applicant ‘might have committed at least some of the offences for which he had been prosecuted’ (Chamber judgment, para 168). Yet, at the same time, the Chamber had found the applicant’s continued pre-trial detention to be a violation under Article 5(3) since it was unconvincingly justified by domestic authorities (Chamber judgment, para 191). The Grand Chamber had a different approach. It found that there was no reasonable suspicion to justify either his first pre-trial detention or his continued pre-trial detention. Following a careful evaluation of the charges brought, the Grand Chamber established that there was no ‘clear link between his actions – his political speeches and his participation in certain lawful meetings – and the offences for which he was detained’ (para 338). The Grand Chamber thus clearly stated that Demirtaş’s political speeches could not be identified as terrorist propaganda. This was a departure from the Chamber’s holding, which had left this point ambiguous.

The third point concerns Article 18 and Article 46. Both the Chamber and the Grand Chamber arrived at the same conclusion, as in they found a violation of Article 18. Their approach and tone differed significantly, however. While the Chamber had found that the applicant’s continued pre-trial detention had a political purpose (not his initial pre-trial detention), the Grand Chamber once again did not make a difference between these two separate accounts of detention. Rather, it relied upon its previous finding under Article 5(1) that there was no reasonable suspicion behind the applicant’s initial and continued detention. Other factors that the Grand Chamber considered in reaching its conclusion were the Venice Commission’s finding on judicial independence (or lack thereof, to be exact) and the comments from the Commissioner for Human Rights. Relying on their findings, the Grand Chamber acknowledged that ‘the tense political climate in Turkey during recent years has created an environment capable of influencing certain decisions by the national courts, especially during the state of emergency, when hundreds of judges were dismissed, and especially in relation to criminal proceedings instituted against dissenters’ (para 434). Building upon this observation, the Grand Chamber concluded that:

‘In the present case, the concordant inferences drawn from this background support the argument that the judicial authorities reacted harshly to the applicant’s conduct as one of the leaders of the opposition, to the conduct of other HDP members of parliament and elected mayors, and to dissenting voices more generally. The applicant’s initial and continued pretrial detention not only deprived thousands of voters of representation in the National Assembly, but also sent a dangerous message to the entire population, significantly reducing the scope of free democratic debate. These factors enable the Court to conclude that the purposes put forward by the authorities for the applicant’s pre-trial detention were merely cover for an ulterior political purpose, which is a matter of indisputable gravity for democracy’ (para 436).

The formulation of Article 46 channelled this spirit. Unlike the Chamber, which had hedged its call for Demirtaş’s release mentioning ‘unless new grounds and evidence justifying his continued detention are put forward’ (Chamber judgment, para 283), the Grand Chamber issued an unequivocal message: secure Demirtaş’s immediate release.

Concluding Comments

This judgment merits all the positive attention that it received. It is likely to serve as a reference document to understand the situation in which political opponents and dissidents in Turkey find themselves. One of the elements that enriches this judgment is its extensive reliance on the findings of the Venice Commission as well as interventions from the Council of Europe Commissioner for Human Rights, and to a lesser extent, NGOs (Inter-Parliamentary Union, Article 19 and Human Rights Watch). The Venice Commission’s findings on the Turkish Criminal Code, the constitutional amendment, and judicial independence (and lack thereof) served as crucial building blocks in the Grand Chamber’s reasoning. It is also worth noting that the Chamber judgment referred to these findings as well, when laying out the relevant domestic and international law. However, it did not rely on them to the same extent. As a matter of fact, the Grand Chamber judgment referred to the Venice Commission 25 times, whereas the Chamber judgment mentioned it 10 times. Admittedly, the frequency of references in itself does not tell much. Yet, the Grand Chamber’s willingness to incorporate the Venice Commission’s findings is one of the reasons why this judgment’s substance is this compelling and its tone this strong. Further, the Grand Chamber relied on the Venice Commission’s reports in its reasoning on 9 occasions, whereas the Chamber did so only on 1 occasion. This tells us two things: first, it shows how different Council of Europe bodies may complement each other’s work. As we see in this case, the Venice Commission played a crucial role in providing information on issues that the Court might not have had the capacity or the time to investigate. It does, indeed, take a village to write such a powerful judgment. Second, the difference between the Chamber’s and the Grand Chamber’s approach indicates that the availability of external information provided by other Council of Europe bodies does not necessarily mean that they will make their way into the ruling. It takes judicial courage to employ all that is available to take such a stand against democratic backsliding. The Grand Chamber did just that in this case.

[1] The actual quote can be found in this news piece: Gizem Karakiş “Erdoğan’dan Demirtaş açıklaması: ‘Bu karar bizi bağlamaz’” [A statement from Erdoğan concerning Demirtaş: This decision does not bind us] (23 December, 2020) https://www.hurriyet.com.tr/gundem/erdogandan-demirtas-aciklamasi-bu-karar-bizi-baglamaz-41695902