The Demirtaş case represents a clear and concrete proof that even with a decision from the highest court ordering your release, you will not be given your freedom back unless the political authority allows it
Today is the anniversary of the second detention of Selahattin Demirtaş, the former co-chair of the Peoples' Democratic Party (HDP), which happened just when he was about to be freed after nearly three years behind bars. Demirtaş, together with co-chair Figen Yüksekdağ, was hastily detained on remand a year ago today, on 20 September 2020.
This second detention as well as the process leading up to it represents yet another case of “judicial harassment,” as the previous Council of Europe Commissioner for Human Rights called it, that the opponents in Turkey have suffered for years. The process dates back to 2014, when Demirtaş was elected HDP co-chair.
Setting the stage to where we are today are a number of political developments including the presidential election of 10 August 2014 when Demirtaş run as a candidate against Erdoğan and received nearly 10 percent of the votes, deadly Kobane protests of 6-8 October 2014, President Recep Tayyip Erdoğan's statement, "Give me 400 MPs and let this matter be resolved peacefully,” in the run-up to the parliamentary elections of 7 June 2015, and Demirtaş's "We will not let you become president" response on 8 March 2015 pledging that HDP will oppose his ambitions for executive presidency.
After their parliamentary immunities were unconstitutionally lifted pursuant to provisional Article 20 that was added to the Constitution on 20 May 2016, HDP MPs, including Demirtaş, were arrested as part of an operation that started on 4 November 2016 and subsequently imprisoned pending trial.
There were two charges against Demirtaş cited by the Criminal Judgeship of Peace which ordered his imprisonment: “being a member of a terrorist organization” and “incitement to commit crimes.” Nine pieces of evidence were cited as the ground for these charges: Six were his political statements in and outside the Parliament as a MP and co-chair of Turkey's second largest opposition party; one was a meeting he attended in Diyarbakır; one was a HDP tweet about Kobane protests; and one was ongoing investigations into his political activities and statements.
Demirtaş, who has been in prison for years with this evidence and identical court decisions that do not contain any ground other than the references to the relevant provisions of the law, spent 19 months of his 48-month term as a parliamentarian in prison. He had to fight adverse conditions in prison when he competed with other candidates under unequal conditions as HDP’s nominee in 2018 presidential elections and campaigned ahead of the Constitutional referendum, arguably one of the most important referendums in Turkey’s history, in 2017. He was denied the means to effectively represent the party he led and the voters who voted for him.
Disregarding all of these, however, the Constitutional Court found the individual application lodged on behalf of Demirtaş manifestly ill-founded on 21 December 2017. In the application, it was asserted that Demirtaş’s constitutional rights have been violated because “the arrest, custody, and detention measures imposed on him were unlawful, access to his file was restricted, the charges subjected to his detention were related to the acts within the scope of freedom of expression and political activity, and he was not being able to fulfill his duty of parliament due to his detention.” The European Court of Human Rights (ECtHR), on the other hand, ruled on 20 November 2018 that Demirtaş’s rights to liberty and security and free election has been violated due to his unjustified arrest, continued detention, and inability to act as a MP.
The ECtHR also ruled that there has been a violation of Article 18 of the European Convention on Human Rights for the first time in a case against Turkey, meaning that Demirtaş was arrested for political reasons in order to be silenced and punished -- taking into account the judicial harassment against dissidents in Turkey, the general situation of human rights violations, and the statements by high-level state officials, such as the President, targeting Demirtaş. According to the ECtHR, it was not only Demirtaş’s “rights and freedoms as an individual that could be said to be under threat but the whole democratic system itself” and the extensions of his detention, “especially during two crucial campaigns, namely the referendum and the presidential election, pursued the predominant ulterior purpose of stifling pluralism and limiting freedom of political debate, which is at the very core of the concept of a democratic society.” In addition, the ECtHR demanded an immediate end to the violations and release of Demirtaş.
However, after this decision, President Erdoğan said "we will take our counter-move and finish the job.” Following this statement, Demirtaş’s conviction in another trial – where he was not ordered to be detained -- of “spreading propaganda for a terrorist organization” and the prison sentence of 4 years and 8 months, one of the longest sentences given to a person charged with this crime, were upheld by the appeals court at unprecedented speed. With this ruling, Demirtaş officially became a convict with a finalized prison sentence, meaning the ECtHR’s judgement against his pre-trial detention and for his immediate release were no longer applicable.
The objections made by Demirtaş and the Government against the ECtHR judgment that was never implemented were accepted and a hearing was held before the Grand Chamber one year ago on 18 September 2019. Just 16 days before this hearing, something surprising happened: In the case where he had been held under pre-trial detention since 4 November 2016 and where all objections and requests for his release filed by his lawyers had been rejected 69 times, the court suddenly decided to release Demirtaş on 2 September 2019.
Following the decision of release, an application was made requesting the deduction of Demirtaş's detention period from his conviction term so that he could be eligible for parole. Two days after the Grand Chamber hearing, the way for Demirtaş’s release was cleared with the approval of deduction request on 20 September 2019.
On 20 September 2019, when Demirtaş’s release was expected, the Ankara Public Prosecutors’s Office called the Edirne Prison Directorate, where Demirtaş was detained, and asked Demirtaş to be readied in the SEGBİS judicial videoconferencing room. Demirtaş, who went to the SEGBİS room to find out why he was called, was once again questioned about the 6-8 October 2014 protests, without his lawyers being present.
On the same day, Demirtaş's lawyers were also called by phone and told that Demirtaş was referred to court with a request for his placement in pre-trial detention. Demirtaş was subsequently detained for the second time in relation to the same events that were already the subject of a case ongoing before the Ankara 19th High Criminal Court, where he was first imprisoned pending trial on 4 November 2016 and released on 2 September 2019 and which essentially concerned a tweet posted by the HDP Central Executive Board. The new detention was based on supposedly new charges, which in effect meant articles of the penal code different than the ones relied on in the trial before the Ankara 19th High Criminal Court were used. Besides, Demirtaş was not even a suspect in this new file, where his second detention was ordered. A day after this detention decision, the President stated that “we cannot release these people, if we do, our martyrs will call us to account for it.”
As of today, Demirtaş, whom the ECtHR found was deprived of his liberty “for the purpose of silencing and punishing,” has been in pre-trial detention for a year, as part of an investigation that pertains to the same events for which he is already on trial but relies on different charges. He has been detained for a year in an investigation where he is not a suspect and with no indictment.
An individual application was lodged with the Constitutional Court about Demirtaş’s second detention as well. His application that was made on 7 November 2019 is pending and ready to be decided on after the response to the Ministry of Justice’s opinion was submitted on 8 June 2020. The decisions rendered by the Constitutional Court in this summer about the persons, who were re-arrested and imprisoned after being released on charges that are nominally different but essentially the same, should be implemented for Demirtaş as well. Moreover, an ECtHR application, which was lodged because the Constitutional Court has not decided on this individual application that was made one year ago, has been pending since 2 March 2020.
In the meantime, the Constitutional Court issued another judgment about Demirtaş and ruled that his detention between 4 November 2016 and 7 December 2018 had exceeded the reasonable time, without considering other allegations of violation. As Demirtaş’s second detention of 20 September 2019 is actually a continuation of his first detention, each day he is being held in prison without concrete evidence justifying a strong suspicion of crime adds to a lengthy detention exceeding a reasonable time and amounts to further violation his liberty and security.
Despite the course of events that demonstrate the political will to punish Demirtaş, Demirtaş has been in prison for nearly four years, with dozens of new investigations, new trials, applications to and decisions of the Constitutional and Human Rights Court….
The point we are at is the clearest and most concrete indication that even if you get a decision by the highest court finding that your rights were violated and ordering your release, it is not possible to retrieve your liberty unless the political will allows it. This situation, as emphasized by the Human Rights Commissioner, has now come to constitute ill-treatment.
Looking ahead, it is expected first and foremost that the Grand Chamber of the ECtHR, which was established after the Second World War to prevent repetition of the serious human rights violations committed at that time, will make a decision recognizing the judicial harassment that Demirtaş has suffered for years, putting an end to the grave violations he endured and revealing the Court’s commitment to prevention of these violations and announce this decision as soon as possible. Afterwards is the subject of yet another struggle for having that decision implemented.
* Benan Molu, human rights lawyer and one of the lawyers of Selahattin Demirtaş.
 Selahattin Demirtaş application, Application No: 2016/25189, 21.12.2017.
 Selahattin Demirtaş v. Turkey (no. 2), Application No: 14305/17, 20.11.2018.
 Selahattin Demirtaş v. Turkey (no. 2), para. 273.
 In the case in question, Demirtaş was tried and received imprisonment on the same day with Sırrı Süreyya Önder, and individual applications were made to the Constitutional Court on behalf of Demirtaş and Önder on the same day. Although the Constitutional Court ruled that the prison sentence imposed on Önder had violated his freedom of expression, it remained inactive for a long time in Demirtaş's application. After the amendment that paved the way for the appeal of the decisions of regional courts of appeal before the Court of Cassation, the ruling about Demirtaş was appealed before the Court of Cassation and Demirtaş's "convict" status was thus abolished.
 Abdullah Kılıç application, Başvuru No: 2016/25356, 08.01.2020, para. 85; Cihan Acar başvurusu, Başvuru No: 2017/26110, 27.02.2020, para. 74-75; Yetkin Yıldız başvurusu, Başvuru No: 2018/3292, 23.06.2020.