Opposition deputy and human rights defender Gergerlioğlu stems from a social media post retweeting a news story from 2016
Ömer Faruk Gergerlioğlu, an opposition lawmaker from the pro-Kurdish Peoples’ Democratic Party (HDP) and a prominent critic of government actions violating human rights, was stripped of his parliamentary status, a prelude to his impending imprisonment for 2.5 years over a social media post from 2016.
Gergerlioğlu’s parliamentary status was terminated when a decision announcing his finalized conviction was read out at Parliament’s General Assembly on 17 March 2021. Gergerlioğlu and other HDP deputies shouted slogans in protest of the decision as it was being read. No preliminary debates were held on the move, except for statements by HDP and main opposition Republican People’s Party (CHP) politicians urging the Parliament Speaker’s Office to shelve it minutes before it was read. The announcement of the decision was not formally included on the General Assembly agenda but it had been widely reported in the media a day before.
Gergerlioğlu is now expected to be sent to prison to serve a 2.5-year sentence given on the charge of “spreading propaganda for a terrorist organization,” which was upheld by the Court of Cassation in February, becoming final. Article 84 of the Constitution cites finalization of a conviction as a ground for terminating the parliamentary status of a deputy. Gergerlioğlu, however, announced that he would not leave Parliament premises and HDP deputies pledged to support him.
Gergerlioğlu posted on Twitter a photo of him with other HDP deputies taken at the General Assembly hall after termination of his parliamentary status, saying “We are not leaving Parliament!!!”
TBMM'i terk etmiyoruz.!!!— Ömer Faruk Gergerlioğlu (@gergerliogluof) March 17, 2021
AK Parti MHP Cumhur ittifakı vekilleri meclisten çıktı.
Biz çözüm için buradayız, sorunların halledilmesi için meclisi terk etmiyoruz. pic.twitter.com/HqohbElDM0
Conviction over a tweet
Gergerlioğlu, who was elected an HDP deputy from the northwestern province of Kocaeli in June 2018, has spoken out against several human rights violations, including unlawful practices targeting thousands of people dismissed from their jobs under statutory decrees issued during the State of Emergency, enforced disappearances, torture, and strip searches in custody. On 21 February 2018, he was sentenced to two years and six months in jail in a trial overseen by the Kocaeli 2nd High Criminal Court for a tweet he posted on 20 August 2016.
In the tweet in question, he shared a link to a news story about a statement from the outlawed Kurdistan Workers’ Party (PKK) along with a comment. The news story, which is still accessible on the independent news portal T24 and has not been subject to any criminal investigation, is titled “PKK: Peace would arrive in a month if state takes a step” (PKK: Devlet adım atarsa barış bir ayda gelir) Gergerlioğlu’s tweet consists of a link to the story along with his comment: “This call should be properly considered. There is no end to this issue..!” (Bu çağrı hakkıyla değerlendirilmeli, bu işin sonu yok..!”)
Court of Cassation judgment despite parliamentary immunity
Four months after the Kocaeli court’s verdict, Gergerlioğlu was elected a deputy from HDP in June 2018, receiving parliamentary immunity from prosecution. But the 16th Criminal Chamber of the Court of Cassation took up his conviction verdict while he was a deputy, arguing that his case was exempt from parliamentary immunity because his social media post constituted a “abuse of fundamental rights and freedoms” under Article 14 of the Constitution.
Article 83 of the Constitution, which grants members of Parliament immunity from detention, interrogation, arrest and prosecution, specifies that such immunity will not apply “in cases where a member is caught in flagrante delicto requiring heavy penalty” and “in cases subject to Article 14 of the Constitution as long as an investigation has been initiated before the election.”
The Court of Cassation defended its conclusion by citing a Constitutional Court decision from 2008 that expressions of thought that constitute a direct and imminent threat to democratic life could be considered as a “abuse of fundamental rights and freedoms” under Article 14 of the Constitution. It also cited the case-law of the 9th Criminal Chamber of the Court of Cassation, which it said deemed the offence of “terrorism propaganda” is to be a “abuse of fundamental rights and freedoms.”
According to the Court of Cassation judgment, which was issued in February 2021, Gergerlioğlu’s reference to a news report containing a statement issued by the PKK amounted to “endorsement of the statement.” It argued that his “attempt to legitimize the PKK was found to be aimed at increasing the political or social influence of the PKK, helping its voice be heard by masses, creating an impression that it is a force impossible to be beaten and capable of reaching its goals, and increasing popular sympathy and active support for it.”
Application to Constitutional Court ignored
Following the Court of Cassation judgment, Gergerlioğlu made an individual application with the Constitutional Court, saying his rights to freedom of expression and right to conducting political activities were violated. But Parliament Speaker Mustafa Şentop dismissed suggestions that Parliament should wait until the Constitutional Court decision is announced, saying in remarks on 15 March that the Constitution states that a finalized conviction is the ground for expulsion of a deputy.
The application, filed by human rights lawyer Kerem Altıparmak and is still pending before the Constitutional Court, continuation of the prosecution of Gergerlioğlu despite his legislative immunity was in violation of Article 83 of the Constitution, which grants immunity to members of Parliament.
Maintaining that Gergerlioğlu’s 2016 tweet contained a “call for peaceful resolution of the Kurdish issue,” the application says that Gergerlioğlu has become a target of attacks from the government because of his statements in and outside Parliament on grave human rights violations. “It is evident that finalization of his conviction in disregard of all principles of the law is politically motivated,” said the application.