Not releasing Demirtaş despite the Grand Chamber judgment is not only a simple failure to implement a final and binding ECtHR judgment, but also demonstrates how the rule of law has been eroded
Att. BENAN MOLU, Att. MAHSUNİ KARAMAN, Att. RAMAZAN DEMİR
Selahattin Demirtaş was taken into custody on 4 November 2016 in an operation conducted against the MPs of Peoples' Democratic Party (HDP) while he was co-chair of the party and a deputy for Istanbul, and subsequently detained on remand. Applications were lodged with the European Court of Human Rights (ECtHR) and the Constitutional Court, complaining that Demirtaş was jailed pending trial and continued to be held in detention for unlawful, arbitrary and political reasons in this case that is still pending before the Ankara 19th Assize Court.
On 20 November 2018, the ECtHR established that Demirtaş’s rights had been violated and ordered his immediate release as per Article 46 of the Convention. Following the President’s statements about this ruling, saying, “We will do a counter move, and close the deal,” a 4 year and 8 month sentence given to Demirtaş for "making propaganda for a terrorist organization" by Istanbul 26th Assize Court was upheld by a regional court of appeals on 4 December 2018, and he thus became both a convict and a detainee at the same time on 7 December 2018.
Upon the appeals against the ECtHR’s judgment of 20 November 2018 by the Government and Demirtaş, the Grand Chamber examined the application by holding a hearing on 18 September 2019. Sixteen days before this hearing, on 2 September 2019, Demirtaş’s release was ordered in the case before the Ankara 19th Assize Court that he had been in detention since 4 November 2016, where all previous requests for and objections against his release were rejected. However, he could not be freed due to the approval of his conviction.
When the possibility of his release arised upon the application requesting the deduction of his imprisonment period during the case before the Ankara 19th Assize Court from the final conviction term, on 20 September 2019, he was detained on remand for the second time as part of an investigation where he was not even a suspect.
Considering the facts briefly summarized above, the ECtHR’s Grand Chamber ruled in December 2020 that Demirtaş’s rights and freedoms had been violated and ordered his immediate release. After this judgment, Demirtaş was not released, and a new indictment was filed in the investigation, where he had been held in pre-trial detention for more than a year without an indictment. Below is an analysis of this indictment on Demirtaş's second pre-trial detention since 20 September 2019, in light of the Grand Chamber's judgment.
The ECtHR’s Grand Chamber judgment
On 22 December 2020, the ECtHR’s Grand Chamber established that Demirtaş’s “first and second detentions on remand respectively of 4 November 2019 and 20 September 2020 are the continuation of each other, that they are grounded on the same factual context, that the evidence therein is insufficient for a reasonable suspicion, and that he had been put and continued to kept in pre-trial detention for the same political reasons,” and accordingly held that his right to liberty and security enshrined in Articles 5 § 1 (c) and 5 § 3 of the Convention; right to free elections guaranteed under Article 3 of Protocol No. 1 to the Convention; freedom of expression protected under Article 10 of the Convention, and, on the grounds that his detention is politically motivated, Article 18 in connection with Article 5 of the Convention had been violated and ordered his immediate release as per Article 46 of the Convention.
Considering the second pre-trial detention of Demirtaş when he was about to be released after the decision for his conditional release and the President’s statements on the following day referring to Demirtaş as a “murderer” where he also said that Demirtaş could not be “let go,” the Grand Chamber stated that “although the apparent purpose of the applicant’s return to pre-trial detention was to investigate the events of 6 to 8 October 2014, this criminal investigation concerned part of the facts forming the basis of the trial that is still ongoing at the Ankara Assize Court, in connection with which the applicant had already been placed in pre-trial detention,” and concluded that the second pre-trial detention was a continuation of the first one and violated Article 18.
However, despite this judgment that leaves no open doors, Demirtaş was not released again. Undoubtedly, these developments are not merely a failure to implement the final and binding ECtHR judgments, but also show how the rule of law has been eroded.
Developments after the Grand Chamber judgment
Before and after the judgment of the Grand Chamber, high level state officials made statements targeting Demirtaş and the case against him, labeling him as a "terrorist," contrary to the presumption of innocence, sending messages to the courts to convict him as soon as possible, and stating that the ECtHR's judgment is not binding. The requests for his release and the objections against his detention made following the judgemnt have been rejected.
On 30 December 2020, a 3,530-page indictment was filed against 108 persons, including Demirtaş, which was admitted on 7 January 2021. In the indictment, Demirtaş is accused of receiving orders from organization executives and being responsible for the violent incidents of 6-8 October 2014, citing his statements covered in the news from the years between 2014-2019 as evidence. With the preliminary proceedings report, the continuation of Demirtaş’s detention was decided. This decision was challenged on 11 January 2021.
An assessment of the indictment and preliminary proceedings report
The claim that the Grand Chamber judgment does not involve Demirtaş's second detention
The Ankara 22nd Assize Court asserted that the previous acts of the defendants amounting to a crime and the actions and activities they carried out afterwards in relation to the events that took place on 6-7 October 2014 were included in the indictment; that the facts, accusations, and parties are different than the ones in the file no. 2017/189 of the Ankara 19th Assize Court, and that a new and different file is at stake.
Acknowledging that the ECtHR judgments are binding according to Article 46 of the Convention and Article 90 of the Constitution, the Ankara 22nd Assize Court pointed out that, in paragraph 63 of the ECtHR Grand Chamber judgment, it was stated that 31 separate criminal investigations in respect of Selahattin Demirtaş had been joined together as a single case, that there are currently seven other sets of criminal proceedings pending against Demirtaş in domestic courts, and that investigations and proceedings concerned do not form part of the application. The Ankara 22nd Assize Court then held that it would make a decision about the investigation conducted by the Diyarbakır Public Prosecutors’ Office, that the detention order subjected to its decision of 22 December 2020 is the detention order of 4 November 2016 and did not contain any evaluation about the detention order of 20 September 2019, and that as it had "not examined the present detention, which was also confirmed by the ECtHR," they were "not bound by the Grand Chamber's judgment.”
In order to void the "tactics" developed to prevent Demirtaş's release, the ECtHR Grand Chamber made evaluations about the second pre-trial detention, which is the subject of the case in question.
Most of the evidence and charges against Demirtaş in the indictment are the same as those in other cases against him before the Ankara 19th Assize Court and other courts. They comprise his statements made as an opposition politician on Turkey’s political agenda, which is protected by freedom of expression. They have been refuted both in the established case-law of the Constitutional Court and the ECtHR, and in particular, in judgments rendered for Demirtaş by the ECtHR’s Second Chamber and Grand Chamber. Therefore, the judgment of the Grand Chamber binds the Ankara 22nd Assize Court, as it binds everyone.
Accusations against Demirtaş:
Demirtaş is accused of the incidents of 6-8 October 2014, curfews, the peace process, hunger strikes, the statements he made from prison after his detention on 4 November 2016 about the political agenda, open and anonymous witness statements, and social media posts.
Statements about the incidents of 6-8 October 2014, open and anonymous witness testimonies, Tweets allegedly posted by HDP and Demirtaş:
In news reports published between 9 September 2014 and 10 October 2014, it was alleged that Demirtaş met with the organization executives and received instructions from them. However, in his statements in these reports, Demirtaş condemned the terrorist acts of ISIS, which were defined as a “crime against humanity” by the United Nations and expressed that a struggle is being made to protect human values and dignity and a lasting peace is desired. Among these news, the one titled "Demirtaş Kobane'ye Geçti" (Demirtaş visits Kobane), dated 30 September 2014, was given a special importance and weight in the indictment and the preliminary proceedings report.
Among witness Kerem Gökalp and anonymous witness Mahir, one alleged that "Demirtaş was given instructions over the Turkish Assembly members," and the other that "the instruction was transmitted via Kamuran Yüksek."
However, Demirtaş's visit to Kobane in Syria was not an illegal visit. On those days when the peace process was still underway, Demirtaş made a public visit to Kobane under official permissions from the Urfa Governor's Office and Suruç District Governorship within the knowledge of the Ministry of Interior.
It is possible to access the text and video of his speech with a simple Google search. Calling on Turkey and especially the international community/states, Demirtaş was pointing out to the necessity of intervening on Kobane, which was under ISIS blockade. On the day of his speech, there was no street violence movement named as the "6-8 October incidents." After this speech, no negative incident occurred in this respect. The "resistance" mentioned in the speech is not the street protests that had not yet taken place, but the resistance against ISIS in Kobane.
The manner and time of the visit, the context and content of the speech refute the perception attempted to be created with the sentence quoted in the indictment. As such, it is clear from the content of the speech itself that the allegation that Demirtaş had made a call that led to the start of 6-8 October incidents by following organizational instructions and thus the statements of open and anonymous witness are false.
As a matter of fact, the ECtHR Grand Chamber also examined the allegations that Demirtaş was in charge of the political wing of the KCK and that he received instructions from the organization executives, and concluded that the allegation that Demirtaş received instructions cannot ascertain by fabricated distortional evidence and moreover, by the content of this evidence.
Furthermore, the aforementioned speeches and visits were made in 2014. Demirtaş was detained on the basis of this evidence in 2019, five years after the speech and visit. Under these conditions, it is not possible to speak of urgent social need.
Hence, about the accusations brought against Demirtaş, the ECtHR Grand Chamber stated that until the end of “peace process, no action had been taken against him due to this speech, that the judicial authorities had taken action more than four years after the speech was delivered, that his actions had been asserted to provide sufficient grounds for his detention regardless of their intention and context, and that it had been resorted to such a measure without any other basis or evidence, and found that there had been no reasonable suspicion in support of the accusations against him.
The testimonies of HDP politicians, who were tried as defendants in this case, taken by the police and prosecutor, clearly show that Demirtaş met with the Government before, during and after the aforementioned day to seek a solution and try to calm the public.
The indictment also includes tweets allegedly posted by the HDP “in accordance with the instructions it received from the organization executives." These tweets were also included in the case before the Ankara 19th Assize Court and were the subject of the 2020 judgment of the ECtHR Grand Chamber. In the Grand Chamber judgment, these tweets were examined and it was established that they did not contain any calls for violence and that there was no causal link between the violent acts and the tweets.
Furthermore, it was alleged that Demirtaş tweeted from the account named @SELAHATTİNDMRTS. However, this account do not belong to him. The fact that such an information that can be verified very easily was included in the indictment as an evidence without being confirmed shows that, in addition to carelessness, evidence was fabricated to accuse Demirtaş.
During the ongoing trial of Demirtaş before the Ankara 19th Assize Court, fabricated evidence was used as well. In concluding that his right to liberty and security had been violated, in its 2020 judgment, the ECtHR Grand Chamber also examined these fabricated evidence, and stated that “in view of the doubts surrounding the authenticity of these documents, it is not possible for an objective observer could conclude that there was a reasonable suspicion in support of the accusations against the applicant.”
Following these tweets allegedly belonging to HDP and Demirtaş, the indictment cited the words of Demirtaş, "We will erect President Apo's statue," in a speech he allegedly delivered at a rally in Nusaybin. However, this speech was delivered in a rally in Kızıltepe, not in Nusaybin as alleged and was included in the investigation report numbered 30 in the criminal proceedings pending before the Ankara 19th Assize Court. Accusations were also brought against Demirtaş due to this speech in the pre-trial detention order of 4 November 2016. The ECtHR Grand Chamber examined this order’s compliance with laws and concluded that these words are in the scope of the freedom of expression.
Peace process – statements made during the curfews and hunger strikes as well as from prison after he was detained on remand on 4 November 2016
In the indictment, Demirtaş's statements during the peace process, curfews, and hunger strikes between 2013-2016 were also included. However, the indictment was prepared regarding the 6-8 October incidents and the accusations were limited to these events. The citation to his speeches delivered a year ago in 2013 as well as respectively a year and two years after, in 2015 and 2016, which are neither related to the events of 6-8 October 2014 nor the charges in the conclusion part of the indictment, demonstrates that this was an attempt at creating a perception about Demirtaş.
Although they are not related to the main accusation (the events of 6-8 October 2014) and the pre-trial detention order of 20 September 2019, the criminal proceedings were initiated against Demirtaş before assize courts and criminal courts of first instance on the charges of “terrorism propaganda, insulting the President, and publicly humiliating the government bodies” due to almost all of these speeches cited in the indictment, and the trials are still pending.
The statements made by Demirtaş to the press from prison after his detention on 4 November 2016 have also been cited in the indictment as evidence. These are his statements on issues of Turkey's political agenda, such as the arrests of HDP MPs, increasing terrorist attacks, hunger strikes, the Roboski massacre, isolation, autonomy declarations, and calls on the opposition to fight together. Among these statements, there are some letters Demirtaş sent to the European Parliament and the Parliamentary Assembly of the Council of Europe, to the general assemblies of the HDK and HDP, as well as one he wrote about his nomination for the Václav Havel Human Rights Prize. There are also his defense statements he made in the hearings before the Ankara 19th Assize Court, and his campaign during his presidential candidacy.
All of these statements were made about the country’s political agenda by Demirtaş as the co-chair of the country's second largest opposition party, an opposition MP, and a presidential candidate. Considering the period and context in which they were made, they are all under the protection of freedom of expression.
These speeches are also within the scope of freedom of expression in the context of the findings of the ECtHR Grand Chamber in its judgment regarding Demirtaş. Since he was not detained on the basis of these speeches, and the indictment did not include any charges against him or a request for his punishment for them, it is not legally possible to cite these speeches in the decision regarding his continued detention.
In reaching this conclusion, the Grand Chamber took into account the content of the speeches, as well as the inactivity of the judicial authorities during the time they were delivered, making it the reason of prosecution and detention after many years.
Pre-trial detention order of 20 September 2019 and the decisions on the continuation of detention
Despite the decision of the ECtHR Grand Chamber regarding his immediate release, it was decided on the continuation of Demirtaş’s detention in the preliminary proceedings report. While his brother, who lives abroad, was cited as the reason for Demirtaş's suspicion of fleeing, for the first time since 4 November 2016, it was decided to continue his detention on this ground. The Ankara 22nd Assize Court made this decision based on the printed and stereotyped reasons listed in Article 100 of the CMK.
Reminding that it has already found that no specific facts or information that could give rise to a suspicion justifying the applicant’s pre-trial detention were put forward by the national courts at any time during the detention and that there was therefore no reasonable suspicion that he had committed an offence, the ECtHR Grand Chamber reiterated that the persistence of a reasonable suspicion that the detainee has committed an offence is a sine qua non for the validity of his or her continued detention and concluded that Demirtaş’s continued detention had violated the Convention. Under these circumstances, it found unnecessary to ascertain whether the competent national authorities gave relevant and sufficient grounds to justify the Demirtaş’s pre-trial detention, or whether they displayed “special diligence” in the conduct of the proceedings.
On the other hand, the Second Section of the ECtHR examined whether Demirtaş's detention and the continuation of it meet the requirements of Article 100 of the CMK. Emphasizing that Demirtaş had gone abroad many times and always returned to his country without any intention of fleeing, that he had not escaped although he had been aware of the criminal proceedings and the serious charges against him for a long time, the ECtHR established that the decision on his detention consisted of a stereotypical listing of general grounds, such as the current state of evidence, the period he spent in prison, and the risk of altering evidence, and concluded that such decisions drawn in stereotypes could in no case be considered sufficient to justify the detention and continuation of it.
These considerations are equally applicable to the present case. It is against the right to liberty and security that Demirtaş, who has been in prison since 4 November 2016 in the first case and since 20 September 2019 in the present case, is in detention exceeding a reasonable time, based on printed and stereotyped grounds.
Hence, the final and binding decision of the ECtHR Grand Chamber is in this direction, where immediate end of Demirtaş's detention was requested. The second pre-trial detention of Demirtaş on 20 September 2019 and the trial against him that will be started before the Ankara 22nd Assize Court are a repetition and continuation of the evidence and accusations attributed to him in the first detention on 4 November 2016 and Demirtaş should be released immediately.
Turkey is openly refusing to implement the judgments of the ECtHR. In its interim resolution of 3 December 2020, the Committee of Ministers of the Council of Europe condemned the failure to release Kavala despite the ECtHR's judgment, the non-implementation of the decision, and the second pre-trial detention of Kavala within an investigation that was a continuation of his first detention that was subjected to the violation decision regarding him, and demanded, once again, Kavala’s immediate release. Nevertheless, Osman Kavala has not yet been released and the binding ECtHR judgment has still not been implemeted.
The failure to release Demirtaş despite the ECtHR judgment, the unjustified and arbitrary delay of the execution of the release order making his release impossible, all lead to the continuation of the established violations and to new violations. As underlined by the Commissioner for Human Rights, despite all the favorable decisions, Demirtaş's inability to be released under any circumstances has now reached the point of ill-treatment under Article 3 of the Convention.
As stated in paragraph 441 of the ECtHR decision, in light of the conclusions and spirit of this judgment, releasing Demirtaş from detention will not be sufficient to fully remedy the consequences of the violations. In accordance with this judgment, Demirtaş must be acquitted both in the new trial and in the trial pending before the Ankara 19th Assize Court. A contrary attitude would mean the continuation of the violations of Articles 5, 10, and 18 of the Convention as well as new violations.
 Legal representatives of Selahattin Demirtaş in the case before the ECtHR Grand Chamber.
 https://www.evrensel.net/haber/419418/erdogandan-osman-kavala-ve-selahattin-demirtas-aciklamasi-asla-ve-asla-savunulamaz; https://t24.com.tr/haber/erdogan-kilicdaroglu-eger-aday-olacaksa-partisi-icin-de-ulkemiz-icin-de-isabetli-olur,919635; https://www.gazeteduvar.com.tr/bahceli-hdpnin-kapisina-acilmamak-uzere-kilit-vurulmali-haber-1507048; https://www.yenisafak.com/gundem/cumhurbaskani-erdogandan-aihmin-demirtas-kararina-tepki-bu-teror-yanlisi-karar-bizi-baglamaz-3590945; https://www.cnnturk.com/video/turkiye/son-dakika-soylu-aihmin-demirtas-kararinin-bir-anlami-yok-video; https://www.hurriyet.com.tr/gundem/son-dakika-mhp-lideri-bahceliden-onemli-aciklamalar-41697524; https://www.milliyet.com.tr/gundem/son-dakika-aihmin-demirtas-karari-mehmet-ucum-bilincli-carpitiliyor-esastan-baglayici-degil-6392327
 Selahattin Demirtaş v. Turkey (no. 2), Grand Chamber, paras. 432-433.
 Selahattin Demirtaş v. Turkey (no. 2), Grand Chamber, para. 336.
 Erbakan v. Turkey, 59405/00, 06.07.2000, Osman Kavala v. Turkey, 28749/18, 10.12.2019; Sırrı Süreyya Önder application, 2018/38143; 03.10.2019.
 Selahattin Demirtaş v. Turkey (no. 2), Grand Chamber, para. 335.
 Selahattin Demirtaş v. Turkey (no. 2), Grand Chamber, paras. 246, 272, 324.
 Selahattin Demirtaş v. Turkey (no. 2), Grand Chamber, para. 327.
 Selahattin Demirtaş v. Turkey (no. 2), Grand Chamber, para. 335.
 Selahattin Demirtaş v. Turkey (no. 2), Grand Chamber, para. 333.
 Selahattin Demirtaş v. Turkey (no. 2), Grand Chamber, paras. 333-334.
 Selahattin Demirtaş v. Turkey (no. 2), Grand Chamber, paras. 354-356.
 Selahattin Demirtaş v. Turkey (no. 2), Grand Chamber, paras. 432-433 and 440-442.