Lawyers: Demirtaş should immediately be released on probation

Demirtaş's Lawyers at press conference

Our former co-chair Mr. Selahattin Demirtaş’s lawyers held a press conference regarding the September 18 hearing at the Grand Chamber of European Court of Human Rights (ECHR). The statement reads as follows:

Dear Members of the Press,

As publicly known, Selahattin Demirtaş was arrested on November 4, 2016, together with 12 other HDP deputies, and for this unlawful, unjust and politically-motivated arrest and detention an application was submitted to the Constitutional Court and the European Court of Human Rights (ECtHR).

While the Constitutional Court found no violation of rights in Demirtaş’s detention in their ruling dated December 21, 2017, the ECtHR ruled on November 20, 2018 that the article which protects the right to liberty and security, Article 5 §3 of the European Convention on Human Rights was violated as Criminal Courts of Peace, Assize Courts, and the Constitutional Court failed to present any sufficient justifications for the continued detention of the former HDP co-chair Selahattin Demirtaş who has been under detention since November 4, 2016. Furthermore, the Court decided that right to free elections guaranteed by the Article 3 of the Protocol no. 1 to the Convention was also violated, particularly considering both the status of Selahattin Demirtaş as a Member of the Parliament and the co-chair of an oppositional party, and the status of the voters he represented, as it was impossible for him to take part in the activities of the National Assembly on account of his detention.

Along with such violations of rights, the Court decided that the Article 18 on limitation on use of restrictions on rights of the Convention was also violated, concluding that the applicant was detained due to political reasons, his arrest and detention pursued the predominant ulterior purpose of stifling pluralism and limiting freedom of political debate, and therefore not only Demirtaş’s individual rights and freedoms were threatened, but considering the broader political atmosphere in Turkey, the democratic system as a whole was under threat as well.

This decision brought significant consequences regarding Demirtaş and brought significant improvements in the case-law as a judicial precedent: For the first time, the Court decided that the detention of a person for their parliamentary activities violated the right to vote and stand for election. And for the first time again the Court decided that Turkey violated Article 18 of the Convention.

Moreover, the Court ruled for the immediate release of the applicant Demirtaş, stating that his further confinement without any new evidence would amount to continued violations of Article 46 of the Convention.

In addition to all these important findings and violations, some of our allegations were disregarded, others were found inadmissible, or considered as non-violations by the Court. Without a doubt, the most significant one was the decision that the sub-paragraph (c) of Article 5 § 1 of the Convention was not violated, concluding that Demirtaş can be said to have been arrested and detained on reasonable suspicion of having committed a criminal offense. Almost as significant, the Court’s declared our allegations of violation of the freedom of expression inadmissible without any further examination. However, the evidence presented as the basis for Demirtaş’s detention was either fabricated or came from his press statements, meetings he attended orhis speeches as the co-chair of an oppositional party. The Court has a well-established case-law that the detention of oppositional figures especially on grounds of their statements and actions protected by the right to freedom of speech, right to assembly and to association does not constitute a reasonable crime suspicion, and such detentions violate both the right to liberty and security, and the freedom of expression. In the case of Demirtaş, the Court deviated from this established case-law.

Accordingly, on February 19, 2019, we appealed to the Grand Chamber to review the violations found by the Chamber’s decision in accordance with the Court’s established case-law. The Government also lodged an objection against the Court’s decision of violations.

The ECtHR accepted the applications of both parties and the case was moved to the Grand Chamber to hold a hearing on September 18, 2019regarding the entirety of the case.

Our expectation from the ECtHR Grand Chamber’s seventeen judges is a decision in line with their established case-law, which determines that Demirtaş was unlawfully arrested with political motives and baseless, insufficient and erroneous evaluations by domestic courts and the Constitutional Court, only because he exercised his freedom of expression as an oppositional member of the parliament and the co-chair of a political party.

Following the ECtHR’s decision on November 20, 2018, and right after the President Recep Tayyip Erdoğan’s statement “we will make our counter-move and close the deal,” the 19th AssizeCourt of Ankara rejected all three requests for release of Demirtaş on the basis of the decision by the ECtHR, while the 2nd Regional Court of Justice of Istanbul, 2nd Penal Chamber approved one of the longest prison sentences for terrorist propaganda charges because of his speech at Istanbul Newroz in 2013, at the beginning of the solution process, sentencing Selahattin Demirtaş to 4 years and 8 months in prison and by this way, de facto rendering the ECtHR Chamber’s decision for Demirtaş’s release pending trial unimplementable.

However, the same courts which reviewed the detention of Demirtaş and decided for its continuation for seventy times, this time decided for Demirtaş’s release in a hearing on September 2, 2019, in the absence of his lawyers, only sixteen days before the ECtHR Grand Chamber hearing. The prosecutor’s appeal to the release decision was rejected by the 20thAssize Court of Ankara, therefore finalizing the decision for Demirtaş’s release, regarding the main file he was arrested for.

However, Demirtaş has not been released at this stage, because he was sentenced to 4 years and 8 months of imprisonment, and the execution of the sentence continues. As of today, the decision for release has not been realized, and it can be evaluated as the Government’s attempt to turn the tables in the ECtHR file.

Subsequently, we applied to the 26thAssize Court of Istanbul on September 11, 2019, for the deduction of the period Demirtaş stayed in prison from his total sentence. The procedure of deduction is simply a calculation made by the court, which is required to be immediately concluded upon request. However, the Court still has not issued a decision regarding the deduction, which can be concluded in the shortest time in terms of its technical and legal aspects.

As Demirtaş’s sentence would drop below a year after the deduction as of May 5, 2019, he should immediately be released on probation as per both recent Supreme Court decisions and the explicit provisions of the Law on Execution.

The release of Demirtaş will not change the fact that he has been unlawfully and unfairly deprived of his liberty since November 4, 2016, for almost three years, and is still under a constant threat of investigation, trial, and further prison sentences.

Within the scope of the implementation of the release decision, the procedure of deduction and the institution of probation is not a legal or political grace, but a most fundamental right. According to the explicit provision of the law, Demirtaş should immediately be released.

Representatives of Selahattin Demirtaş