Selahattin Demirtaş: release order upon release order, but still in jail

Legally speaking, Selahattin Demirtaş should have been freed from prison three times already. Also legally speaking, he shouldn’t have been jailed in the first place.

The European Court of Human Rights (ECHR) said so and a Turkish court said so. Despite that, the former co-leader of the pro-Kurdish Peoples’ Democratic Party (HDP) is not a free man. Meanwhile, on Sept. 18, the ECHR will look at the case again. Demirtaş’s team of lawyers have high expectations for the hearing.

In a press conference in Istanbul this weekend, Demirtaş’s lawyers elaborated on the case before the crucial ECHR hearing on Wednesday. The team – Benan Molu, Mahsuni Karaman and Ramazan Demir – summed up a range of reasons why their client should be immediately released.

“The implementation of the release decision is not a legal or political grace, but a most fundamental right,” the lawyers said. 

Demirtaş’s legal ordeal began on November 4, 2016, when the HDP co-chair and 12 other HDP parliamentary deputies were arrested, with prosecutors alleging they had links to the Kurdistan Workers’ Party (PKK), an outlawed militant group that has fought for Kurdish self-rule in Turkey since 1984.

Despite several court orders to release Demirtaş, both by domestic Turkish courts as by the ECHR, Demirtaş remains behind bars in the high security prison of Edirne, west of Istanbul.

The latest order for his release came earlier this month, on September 2. It was issued, the lawyers noted, by “the same courts that reviewed the detention of Demirtaş and ruled for its continuation 70 times.”

The prosecutor appealed against the release order, but this appeal was rejected by the Assize Court of Ankara, which finalized the decision for the HDP lawmawer’s release.

Still, he was not released. This is connected to another case against the former HDP co-chair, in which he was sentenced to four years and eight months in prison. The verdict for that sentence came directly after a previous landmark ruling by the ECHR Chamber, on Nov. 20 last year, ordering the immediate release of Demirtaş and stating that his further confinement without any new evidence would amount to continued violations of Article 46 of the European Convention on Human Rights, which deals with the binding force and execution of judgments of the Convention. 

Turkey knew the ECHR’s verdict was binding, but had no intention to abide by it. President Recep Tayyip Erdoğan made that very clear when he said he would make a “counter-move and close the deal,” referring to Demirtaş’s imprisonment.

The courts obeyed the president. An Ankara court rejected the release order, and a court in Istanbul quickly approved the four-years-and-eight-months prison sentence handed to Demirtaş by a lower court for “making propaganda for a terrorist organisation”.

This effectively rendered the ECHR decision, which ruled for Demirtaş’s release pending trial, unimplementable.

The propaganda case, moreover, was based on a speech Demirtaş made at Newroz (Kurdish New Year) celebrations in March 2013, an occasion that marked the beginning of a peace process between Erdoğan’s government and the PKK that would fail two years later.

In other words, Demirtaş’s words in times of positive developments regarding the Kurdish issue, when the ruling Justice and Development Party (AKP) endorsed talks with the PKK, were used against him when the political tide turned again.

After the Nov. 20, 2018 ruling, both Demirtaş’s lawyers and the Turkish government appealed to the Grand Chamber of the ECHR. The chamber’s ruling was significant in several ways. One positive for Demirtaş was that for the first time, the Court decided that the arrest of a person for their parliamentary activities violated the right to vote and stand for election.

Also for the first time, the Court decided that Turkey violated Article 18 of the Convention, which limits the use of restrictions of rights and freedoms to restrictions that have been prescribed – in other words, Turkey’s courts had restricted Demirtaş’s rights on grounds that were not explicitly stipulated in the Convention, as required.

“The court concluded Demirtaş was arrested due to political reasons, his arrest pursued the predominant ulterior purpose of stifling pluralism and limiting freedom of political debate,” the lawyers said at last weekend’s press conference. “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.”

However, the Court rejected or found inadmissable several other issues the lawyers had brought up. “Without a doubt,” the lawyers stated, “the most significant rejection was the decision 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 declared our allegations of violation of the freedom of expression inadmissible without any further examination.”

This is significant because the evidence presented as the basis for Demirtaş's arrest was either fabricated or came from his press statements, meetings he attended or his speeches as the co-chair of an opposition party.

Previous rulings of the ECHR however have shown that the detention of opposition figures especially on grounds of their statements and actions protected by the right to assembly and association does not constitute a reasonable suspicion of a crime. Such detentions, on the contrary, violate the right to liberty and security and the freedom of expression.

On  Sept. 18, the case shall be heard in full. The lawyers expect the ECHR Grand Chamber’s seventeen judges to take 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.

The Grand Chamber’s ruling is not is not due for three to nine months. Even so, Demirtaş’s lawyers believe the hearing is profoundly important since its results will have an impact on similar trials of politicians.

“It may not have impact right away, but for the Turkish judiciary, it will have fundamental impacts. Especially a ruling about article 18 of the Convention, because that will have consequences for all the other politicians on trial,” Demir told Ahval.

In the meantime, the court’s Sept. 2 demand for Demirtaş’s release has so far been blocked by his overlapping Nov. 2018 conviction for terrorist propaganda. But this, too, is unlikely to keep him behind bars for long, according to a request filed by the former HDP co-chair’s legal team on Sept. 11.

Turkish law states that people convicted of terrorism-related crimes must serve three quarters of their sentences. Demirtaş has already served two years and ten months of his four-years-and-eight-months prison sentence, meaninng that he has less than a year before hitting the three-quarter mark.

“The procedure of deduction is simply a calculation made by the court, which is required to be immediately concluded upon request,” Demirtaş’s lawyers said. “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.”

Under the current legal circumstances, it seems release for Demirtaş on the shortest term possible is inevitable. But there are still 28 ongoing cases against him, prompting concerns that the government could again seek to keep him behind bars with another swift conviction.

Whether this could be the case is “impossible to tell, of course,” Demir said. “But all the other cases are pending, there are no convictions that can be quickly approved, like the previous time.’

The opinions expressed in this column are those of the author and do not necessarily reflect those of Ahval.