European Court of Human Rights orders Turkey to release and pay damages to opposition leader


Re: Selahattin Demirtaş v. Turkey (No. 2) (Application no. 14305/17)

This case in the European Court of Human Rights concerned the arrest and pre-trial detention of Mr Selahattin Demirtaş, who at the time of the events was one of the co-chairs of the Peoples’ Democratic Party (HDP), a left-wing pro-Kurdish political party, and member of the Turkish National Assembly. In its judgment, the Grand Chamber develops the Court’s caselaw on the protection to be provided to, in particular, opposition member of parliament from the government in a democracy.

Specifically, the Grand Chamber judgment of the Court found that there had been violations of Article 10, Article 5(1), Article 5(3), Article 5(4), Article 3 of Protocol No. 1, and a violation of Article 18 in conjunction with Article 5. Consequently, the Court held that Turkey was required to take all necessary measures to secure the applicant’s immediate release in accordance with Article 46 of the Convention.

Article 10 (freedom of expression)

The Court found that the lifting of Mr Demirtaş’s parliamentary immunity, his initial and continued pre-trial detention, and the criminal proceedings brought against him for terrorism-related offences on the basis of his political speeches had interfered with his Article 10 rights, but had not been prescribed by law as required by Article 10(2). The Court emphasised that it was particularly important to protect the freedom of expression of representatives of the people, especially of members of the opposition.

Article 5 (right to liberty and security)

Regarding Article 5, no specific facts or information that could have given rise to a suspicion justifying the applicant’s pre-trial detention had been put forward by the domestic courts at any time during his detention, and there had not therefore been a reasonable suspicion that he had committed the offences in question.

Article 3 of Protocol No. 1 (right to free elections)

The same observations also led to a finding of a violation of Mr Demirtaş’s right to be elected and to sit in Parliament. The Court found that the judicial authorities had not complied with their procedural obligation under Article 3 of Protocol No. 1 to ascertain whether or not Mr Demirtaş had been entitled to parliamentary immunity for the impugned statements. Nor had they weighed up the competing interests or taken account of the fact that Mr Demirtaş was one of the leaders of the political opposition in his country. The Court also held that where detention of a member of parliament could not be deemed compatible with the requirements of Article 10, it would also breach Article 3 of Protocol No 1.

Article 18 (limitations on use of restrictions on rights)

In relation to Article 18, the Court found it established that Mr Demirtaş has been detained for the ulterior purpose of stifling pluralism and limiting freedom of political debate, which was at the very core of the concept of a democratic society.

The Court held that the respondent State was to take all necessary measures to secure the applicant’s immediate release and Mr Demirtaş was to be paid €28,500 in damages.

Paul Skinner was involved in this case.