Joint Submission to the Committee of Ministers of the Council of Europe

The prolonged and unlawful detention of Selahattin Demirtaş constitutes a serious breach of his human rights and represents a deepening of the rule of law crisis in Turkey. The Turkish authorities should release him from detention, drop the abusive criminal proceedings against him and refrain from weaponizing the law to stifle the exercise of free expression in public debate.

In a joint submission to the Committee of Ministers of the Council of Europe (CM), the Turkey Human Rights Litigation Support Project (TLSP), ARTICLE 19, Human Rights Watch (HRW), the International Commission of Jurists (ICJ), and the International Federation for Human Rights (FIDH) urge the CM to renew its earlier call for the immediate release of Demirtaş and take the necessary steps to launch infringement proceedings against Turkey if it fails to release him before the next CM Human Rights meeting on 8-10 June 2022.

The submission focuses on the stark failure of Turkey to implement Selahattin Demirtaş v. Turkey (No.2) (Application no. 14305/17) European Court of Human Rights (ECtHR) Grand Chamber judgment of 22 December 2020, in which the Court ordered the politician’s immediate release. The submission refutes the recent claims by the Turkish Government that Demirtaş's ongoing detention is related to “new evidence” that is substantially different from that examined by the ECtHR. It argues that Demirtaş’s prolonged pre-trial detention clearly falls within the scope of the Grand Chamber’s judgment and continues to be in clear violation of his human rights.

“The Demirtaş case is one of many in which the Turkish state is abusing the criminal law to silence political opponents and gradually dismantle democracy. By refusing to follow an explicit release order by the ECtHR, it is plainly seeking to circumvent the Convention system. The stakes could therefore hardly be higher. It is imperative that the CM takes all measures to ensure the Court’s judgment is given immediate effect,” said Helen Duffy of the Turkey Human Rights Litigation Support Project.

Selahattin Demirtaş is the former co-chair of the People’s Democratic Party (HDP), a pro-Kurdish rights political party and the second opposition party in Turkey’s parliament. Demirtaş has been imprisoned since 2016 and is held in Edirne F-Type Prison in western Turkey. In 2020, the Grand Chamber of the ECtHR ruled that Turkey’s detention of Demirtaş was politically motivated and aimed to prevent him from carrying out his political activities and found a rare violation of Article 18 of the European Convention on Human Rights, which prohibits rights restrictions for abusive purposes. The Turkish authorities have continuously failed to comply with the Grand Chamber’s order to immediately release Demirtaş and engaged in series of tactics to circumvent the binding ECtHR judgment.

In previous submissions in February 2021 and July 2021 the NGOs argued that Demirtaş’s ongoing detention was based on the same set of facts and incidents that were already found insufficient by the ECtHR. In September 2021, the CM explicitly confirmed that the ECtHR judgment applied to Demirtaş’s ongoing detention and conviction.

Despite this, in 2022, the Turkish Government has again attempted to justify his ongoing detention by reference to purportedly new evidence which had emerged after the ECtHR’s judgment and had thus not been examined by the ECtHR within the scope of the present case.

“The Turkish Government is openly defying its obligation to implement the Grand Chamber judgment,” said Sarah Clarke, Head of Europe and Central Asia team at ARTICLE 19. “The new alleged piece of evidence is claimed to stem from events that took place over seven years ago. Yet, the authorities fail to provide clear and reliable information on how this ‘new evidence’ was obtained. It also conveniently came to light just in time when Turkey is facing stronger pressures from the international community,” she added.

The “new evidence” is substantially based on anonymous witnesses, but there is an extremely worrying practice in the country of the abuse of such witnesses, as Human Rights Watch analysed.

“Human Rights Watch’s own research shows that prosecutors bringing terrorism cases increasingly seek to rely on vague and generalized testimonies of anonymous witnesses who make untestable assertions about suspects. This is compounded by domestic courts failing to probe this kind of alleged evidence, or to question witnesses’ motivation or why their identity has to be protected,” said Aisling Reidy, senior legal advisor at Human Rights Watch. “In this respect, we have concerns that the so called new evidence produced against Mr Demirtas fits with this worrying pattern.”

These abusive judicial tactics are part of a strategy of persecution designed to silence Demirtaş and all independent voices who dare to oppose the Government. The continued criminal proceedings against Demirtaş are politically motivated and massively curtail freedom of expression and as such they have no place in any democratic society.

“Mr. Demirtaş’s ongoing pre-trial detention is based on the same factual context pertaining to events that took place 7 years ago, which the Grand Chamber judgment ordering his release already covers. The Turkish Government must demonstrate that the alleged “new evidence” against Mr. Demirtaş is not simply a means to circumvent the judgment, which it fails to do. The Government’s refusal to comply with the judgment and release him is a prolongation of the violation of his rights, and also damages pluralism and freedom of political debate in Turkey,” Elena Crespi, Western Europe Programme Director, the International Federation for Human Rights, said.

In the submission, the NGOs urge the CM to consider the following recommendations to secure compliance with the ECtHR judgment:

• Insist on the immediate release of Selahattin Demirtaş as required by the ECtHR judgment;
• Confirm that the Grand Chamber judgment clearly applies to Demirtaş’s ongoing pre-trial detention, the criminal proceedings under which he was convicted, and to any other ongoing or future proceedings remaining within the scope of the Grand Chamber judgment;
• Instruct Turkey to end the persecution through abusive criminal proceedings of Demirtaş, in particular by dropping all charges under which he has been investigated, prosecuted or detained which have pursued an ulterior purpose of stifling pluralism and limiting freedom of public debate;
• Emphasise the continuing nature of the breach and that full restitution (restitutio in integrum) in this case, includes the cessation of the persecution of Demirtaş through criminal proceedings solely based on his political activities and his political speech;
• In the event that he remains in detention at the time of the 1436DH 8-10 June 2022 meeting, to take necessary steps to trigger infringement proceedings against Turkey under Article 46(4) of the Convention on the ground of its continued failure to comply with the ECtHR Grand Chamber’s judgment.