Demirtas v. Turkey: an exploration of the dissenting opinions and the Court’s oversights

By Hakan Kaplankaya, former Turkish diplomat, jurist, INSTITUDE member

On December 22, 2020, the European Court of Human Rights (ECtHR/the Court) delivered a landmark judgment against Turkey regarding the prolonged-detention of Selahattin Demirtaş, former leader of pro-Kurdish People’s Democratic Party (HDP). Unlike the 2^nd Section of the Court, which has mostly taken a restrained and reticent stance in politically sensitive Turkish cases, especially after the attempted coup in 2016, the Grand Chamber of the Court has sent a direct and clear message by upholding almost all of the applicant’s main arguments, in opposition to the Chamber’s findings. However, the Court rejected the applicant’s claim that the Turkish Constitutional Court (TCC) had not acted fast enough to comply with the requirement of article 5 § 4 of the Convention. The Court has held this position in many post-coup Turkish cases.

Ezgi Yıldız and Başak Çalı have elaborated the salient factual features of the case and highlighted the remarkable findings in the judgment in their succinct and comprehensive pieces. In this article, I want to analyse the dissenting opinions of Judge Wojtyczek, who disagrees with the majority regarding the speediness of the TCC ruling, and of Judge Yüksel, who criticizes the essential findings of the Court with regard to the foreseeability of the constitutional amendment lifting immunities of applicant and of article 314 of the Turkish Penal Code (TPC).

It is important to remind the reader that Turkish President Erdoğan has refused the Court’s Demirtaş ruling, declaring it ‘not binding’ for Turkey. Notwithstanding Article 46 of the Convention, he implicitly instructed Turkish courts not to observe the judgment of the ECtHR demanding of Turkish government to release the applicant immediately.

Conclusions in the judgment subject to dissident opinions

The proceedings of the Demirtaş case lasted thirteen months and four days at the TCC. Although the Grand Chamber found no violation with regard to the speediness requirement, it noted that such a long period of proceedings cannot be considered ‘speedy’ in an ordinary context. The Grand Chamber subscribed to the Chamber’s reasoning which takes into account the TCC’s exceptional caseload following the declaration of the state of emergency and the complexity of the case. The excuse of the caseload was first accepted by the Court in the Mehmet Hasan Altan and Şahin Alpay judgments. The Court applied the same argument in subsequent cases, except in the case of the renowned philanthrope Kavala, whose application before the TCC lasted about fifteen months, ten months of which continued after the end of the state of emergency.

On the other hand, the Court concluded that the removal of Demirtaş’s parliamentary immunity of had violated article 10 of the Convention. In Turkey, following the AKP’s (the ruling party) loss of majority in the Parliament as an outcome of the July 2015 election and the abortion of the solution process to the ‘Kurdish problem’, the Turkish Parliament adopted a constitutional amendment on immunities of MPs on May 22, 2016. This new rule laid down that the parliamentary immunity of MPs was lifted in all cases where requests for the lifting of immunity had already been transmitted to the Parliament before the adoption of this amendment. While the wording used in the text of this amendment seems to be applicable to all MPs, it has merely served to repeal the immunity of opposition MPs.

The Court highlighted the general preamble of the amendment which explains its aims as

‘to address public indignation about the statements of certain deputies constituting emotional and moral support to terrorism, the support and assistance provided by certain members of parliament to the members of terrorist organisations and the calls for violence issued by certain members of parliament’.

The Court also underlined that the constitutional amendment was a one-off ad homines amendment that was unprecedented in the Turkish constitutional tradition. In this regard, the Court decided that this amendment lifting the parliamentary immunities was a ‘misuse of the constitutional amendment procedure’ and that MPs could not expect that their immunities would be lifted during their term of office due to statements they made before that amendment. Consequently, it found this new and temporary constitutional rule unforeseeable in the context of the lawfulness test.

Moreover, the Court concluded that the Turkish judiciary’s interpretation of this criminal provision did not afford adequate protection against arbitrary interference by the national authorities, which means that this criminal provision was unforeseeable. This important conclusion should have positive repercussions for tens of thousands of people prosecuted on bogus terrorism-related charges on the basis of Article 314 of the TPC.

While it had been apparent that the applicant would be released from the initial prosecutions against him, he was placed in pre-trial detention again in the context of a separate criminal investigation. Considering the continuation of the pre-trial detention of the applicant on the grounds pertaining to the same factual context, the Court ordered the Turkish government to release Demirtaş in accordance with Article 46 § 1 of the Convention.

Judge Wojtyczek’s dissenting opinion

In the first part of his dissenting opinion, Judge Wojtyczek opposed the finding of the Court that the content and scope of the case referred to the Grand Chamber are delimited by the Chamber’s decision on admissibility and that complaints declared inadmissible by the Chamber cannot be examined by the Grand Chamber. He argues that there are no grounds to divide the judgment of the Chamber into two parts: the one that has been declared inadmissible, which is untouchable, and the quashed one, which is not. He further explains that ‘the acceptance of the request lodged under the Article 43 should mean that the whole judgment of the Chamber is quashed, and not only the part of the judgment which decides on the merits of the case.’ It is understood that he adopts a divergent stance concerning the Grand Chamber’s approach to determine the scope of the content of the case.

Furthermore, Judge Wojtyczek did not agree with the majority who ascertained that there had been no violation of Article 5 § 4 of the Convention with regard to the speediness of the proceedings before TCC. He elaborated on his stance by stating that the Turkish authorities should have reacted promptly by enacting legislation to more effectively ensure a speedy review of detention decisions. Domestic courts, including the TCC, should have complied with the promptness requirement enshrined in this provision of the Convention.

Judge Yüksel’s opposition

Judge Yüksel, joined by Judge Paczolay in her first dissenting opinion, disagreed with the majority by arguing that Demirtaş lost his victim status under article 5§3 of the Convention by virtue of the ruling of the TCC which found a violation regarding the disproportionately long pre-trial detention of applicant. She also claimed that the total compensation of approximately 7075 euros awarded by the TCC for pecuniary and non-pecuniary damages constitutes a sufficient and appropriate redress. Judge Chanturia held a similar position regarding this claim. Hesitating about the factual connection between the applicant’s subsequent pre-trial detentions, Judges Yüksel and Paczolay opposed the application of Article 46 and the request for the applicant’s release.

Another striking dissenting opinion by the national judge concerns the finding of the Court on the unforeseeable character of article 314 §1-2 of TPC as well as of the constitutional amendment lifting Demirtaş’s parliamentary immunity. Judge Yüksel does not subscribe to the ruling on the violation of article 10 of the Convention. She suggests that the amendment only changed the procedure to abolish the parliamentary immunity, without touching upon its substantive essence. Put differently, she is of the opinion that it did not narrow down or alter the definition and general concepts of non-liability or inviolability of deputies, and that it only modified the applicable rules governing the procedure to strip MPs of their parliamentary immunities.

She also puts forward that the foreseeability of a constitutional amendment should not be dealt with in the same way as that of ordinary law. She states that it is highly difficult to speak of the foreseeability of constitutional provisions without properly observing the applicable case-law criteria established by the Court, and argues without a deep justification that the Court has lowered the threshold in its examinations concerning the foreseeability of constitutional amendments. 

Judge Yüksel also noted that article 314 §1-2 of TPC satisfied the requirements of quality of law. In this regard, she argued that it is normal that the wording ‘terrorism-related crimes’ in the criminal code may be somewhat general, due to the difficulties linked to preventing terrorism and formulating anti-terrorism laws.

Commentary

In this part, I would like to comment on the dissenting opinion of judges Wojtyczek and Yüksel. Taking into account the current course of events and the prevalent mindset of the Turkish government, I will first raise more arguments concerning the compliance with article 5§4 of the Convention. Then, I will argue that Judge Yüksel’s claims on the foreseeability of constitutional amendment lifting the parliamentary immunity of the applicant as well as of article 314 of TPC are not well-grounded.  

Is the caseload pretext a sufficient excuse?  

Judge Wojtyczek’s arguments regarding the speediness of the TCC might be interpreted as a reflection of his displeasure about the Court’s readiness to accept the caseload pretext without sufficient questioning. Indeed, upon scrutiny, this pretext appears rather flimsy.

In my opinion, State parties should not be able to simply get away with non-performance of speedy review of judicial complaint by claiming that the judiciary has a heavy burden of caseload due to exceptional circumstances. They should also demonstrate that they have endeavoured to take the necessary additional measures and made use of the maximum of its available resources in order to ensure promptness of the judicial proceedings. The Court’s general approach to this question in Turkish cases overlooks a fundamental judicial problem in Turkey.

According to the 2019 annual report of the TCC (p. 180), the TCC has resolved 90% of the cases it received within the last four years. It should be borne in mind that this ‘success’ merely depends on the creation of a new domestic remedy, namely the State of Emergency Inquiry Commission, which enabled the Court to reject tens of thousands of applications. These figures exhibit the TCC’s failure in dealing with sensitive cases within a reasonable timeframe. As the applicant rightfully stated in his observations, the TCC had a priority policy for urgent cases, very similar to the ECtHR’s, but did not carry out a prompt judicial review of Demirtaş’s case, even though it was of utter priority.

Furthermore, I would also like to point out that if the extraordinary caseload for the judiciary is stemming from misconducts, wrongdoings, or omissions imputable to the State party, such a situation should not amount to an excuse for the protracted character of judicial proceedings. One can easily observe that the Turkish judiciary has faced such a heavy caseload in the past few years precisely due to the repressive and increasingly authoritarian measures of the incumbent Turkish government against Kurdish politicians, dissidents, and alleged members of the Gülen movement. For instance, aligning itself with the government’s repression on dissidents, the Turkish judiciary considers that having a subscription to a certain newspaper, depositing money in a particular bank that was doing business legally, attending talking circles of a religious group and enrolling children in education institutions affiliated to the Gülen movement constitute sufficient grounds to charge persons with terrorism. Similarly, just downloading and using an encrypted messaging app named ByLock is deemed as strong evidence of membership to a terrorist organisation.

Based only on the reasons stated here, the Turkish judiciary has initiated criminal prosecutions against 612 thousand persons and detained 292 thousand of them after the failed coup attempt. More than 82 thousand individuals have been detained for using and downloading Bylock, the mere use of which is considered by the UN Working Group on Arbitrary Detention (A/HRC/WGAD/2018/42, § 88) and the UN Human Rights Committee (CCPR/C/125/D/2980/2017, § 9.4) as an insufficient basis for arrest and detention of an individual. The Turkish government has also been carrying out a brutal crackdown against MPs, mayors, provincial executives and members of the Kurdish opposition party HDP on the grounds of alleged links to the terrorist organization of PKK, which are supported by bogus charges relying on thin evidence. Last but not least, thousands of people, including many journalists, are being accused of insulting President Erdoğan or other prominent figures of the ruling AK Party because of their media articles or social media posts. In other words, the AKP government uses the judiciary as a tool to silence and persecute dissidents, critical voices and journalists.

The Turkish Constitutional Court has turned a blind eye to the instrumentalization of the judiciary in this crackdown against dissidents by the Turkish government. The TCC preferred not to handle sensitive cases that would have serious political ramifications in due time. This was the case in other cases as well as for Demirtaş: the TCC only started to examine the cases after a long hiatus, usually after the ECtHR had communicated the file to the Turkish government. Finally, the TCC usually rejects such sensitive applications. Moreover, in the case of Yıldırım Turan, a highly sensitive case regarding the detention of a dismissed judge, the TCC unanimously refused to abide by the ECtHR’s Alparslan Altan judgment, in contradiction to article 46 of the Convention.

Last but not the least, as recently as last September, the UN Working Group on Arbitrary Detention (§101) has qualified the detention pattern established by the Turkish judiciary in the post-coup period as follows: ‘under certain circumstances, widespread or systematic imprisonment or other severe deprivation of liberty in violation of the rules of international law may constitute crimes against humanity’. Undoubtedly, the TCC has a significant role in getting the dire human rights record to this point as the ‘ultimate human rights defender’ in the country. Thus, the TCC’s judicial record in the post-coup period has merely not merited any interpretation of good faith.

In light of the foregoing, it can be concluded that the Turkish government’s repressive policies and measures are the main elements that overload the judiciary to an extreme degree, which results in abuse of the judicial body. A universal general principle of law stipulates that no one shall be heard, who invokes their own guilt (nemo auditur propriam turpitudinem allegans). Accordingly, the exceptional caseload of Turkish judiciary, which is the result of the incumbent Turkish government’s oppressive and authoritarian policies and measures as well as of its abuse of the judiciary, cannot be seen as an excuse for protracted judicial proceedings.

Considering that the Turkish government has not submitted any proof of its efforts to recover the unavailability or inability of the TCC to deal with individual applications in a timely manner, the Court should not have found sufficient the mere declaration of the exceptional caseload of TCC to ascertain whether Turkey had violated article 5 § 4 of the Convention.

Constitutional amendment and terrorism charges as political leverage

As for Judge Yüksel’s opinion regarding the merely procedural character of the constitutional amendment, her stance seems to be tenable from a purely legal-technical perspective. However, the Grand Chamber rightfully took into consideration the political background and consequences of the amendment, which clearly reveal that this political-legal manoeuvre was designed specifically to target the Kurdish MPs, who were the only parliamentarians being accused of having ties with terrorist organisations. In fact, the explanatory memorandum on the constitutional amendment revealed that the parliamentary immunity of Kurdish MPs had been considered by the protagonists of this amendment to be an ‘abuse in the name of terrorist activities’ (§ 56 of the judgment). Thus, the constitutional amendment had not even been presented as a merely procedural amendment, and its application resulted in a sheer abandonment of the substance of parliamentary freedom.

Concerning the foreseeability of the criminal code, she ignores the fact that domestic judicial authorities do not apply the provisions regulating terrorism-related crimes in a principled, consistent and reasonable manner. In the absence of detailed definition for terrorist groups or organisations in Turkish law, the Turkish Court of Cassation developed some criteria to be able to qualify a group as a terrorist organization: intensity, continuity and diversity. Nevertheless, lower courts do not apply these criteria diligently in political cases. The Council of Europe Commissioner for Human Rights notes in her third-party intervention that ‘this is a systematic omission on the part of Turkish prosecutors and courts to perform an appropriate contextual analysis and to filter the evidence in the light of the Court’s well-established case-law concerning Article 10’. In the same vein, as the Venice Commission stated in its opinion (§ 102), the Turkish judiciary is usually inclined to rule affirmatively on a person’s membership of an armed organisation even on the basis of very weak evidence. In other words, due to its general formulation or vague wording, Turkish terrorism legislation leads to inconsistent, abusive and arbitrary judgments of Turkish courts. Therefore, under these circumstances, it is untenable that article 314 § 1-2 of the Criminal Code is foreseeable and has the quality of law.

Demirtaş’s case demonstrates in an obvious manner the extent of the destruction of the principle of rule of law in Turkey. The case displays how the Turkish government utilizes and abuses the entire legal system under the pretext of the fight against terrorism to justify its relentless crackdown on tens of thousands of innocent dissidents with a total disregard for legal securities and immunities. The government was able to secure the detention and trial of an opposition political party leader even though such action had required a change in the constitution. The Grand Chamber’s Demirtaş ruling has revealed the bitter fact that neither the legislative body nor the judiciary have availed themselves of their responsibility to secure fundamental rights and freedoms to the vulnerable in Turkey. However, Demirtas’s continuing detention, in complete disregard of Turkey’s international obligations, evokes another profound problem that exceeds the Court’s capacity. Beyond well-functioning treaty-based judicial mechanisms, a principled, constructive, coordinated, and resolute political will of the international community would be promising for the restoration of the rule of law in Turkey as well as indispensable for the enforcement of decisions or judgments of international bodies, in order to put an end to the gross human rights violations committed by the Turkish government.