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 2nd 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.

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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.

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