The ECHR's decision in favour of Turkish opposition politician Selahattin Demirtaş has important implications, says Prof. Başak Çalı.
On 22 December 2020, the Grand Chamber of the European Court of Human Rights ruled that Turkey had violated the right to political expression and right to liberty of Selahattin Demirtaş and demanded his immediate release from detention. Mr Demirtaş is a prominent Kurdish politician, and the former leader of the People’s Democratic Party (HDP), Turkey’s second-largest opposition party. The Grand Chamber – the ultimate decision-maker of the court – ruled that Mr Demirtaş’s rights had been violated by the lifting of parliamentary immunities in Turkey and his subsequent pretrial detention, which has lasted for over four years. It also held that his detention was pursuing the ulterior political motives of stifling pluralism and freedom of political debate in Turkey.
Hertie School Professor of International Law Başak Çalı was Mr. Demirtaş’s legal advisor in the case.
You were legal advisor to Mr. Demirtaş concerning the proceedings before the ECHR's Grand Chamber. How did you first get involved and what role did you have?
I was involved in this case in the course of the Grand Chamber proceedings before the European Court of Human Rights, the human rights court of the 47 Council of Europe member states. Applicants before the European Court of Human Rights can request a referral to the Grand Chamber and demand a full reconsideration of their case if they believe their case raises serious questions concerning the interpretation of the European Convention on Human Rights or qualifies as a serious issue of general importance. This request must follow a Chamber judgment. Successful referrals are very rare.
I was convinced that Mr. Demirtaş’ case did raise some very serious issues concerning the interpretation of human rights law in the context of decay of democracies and rule of law in Europe. I was in particular of the view that the Chamber judgment delivered in 2018 did not fully take into account the fact that the criminalisation of an opposition politician exemplified the very erosion of democracy and rule of law. As an expert on the European Convention on Human Rights (I’ve worked on the court’s case law and trained scores of judges, lawyers and prosecutors concerning the case law of the Court for the past two decades), this conviction led to my involvement. My first role, together with my colleague Dr. Kerem Altıparmak, was to explain to the court why the Grand Chamber should reconsider this case. This request for reconsideration, a rarity in the court's practice, was successful. Although it must the noted that the government also requested a reconsideration primarily arguing that this case should be inadmissible. As as result, I then became involved in preparing the case for the Grand Chamber, and in the 2019 oral hearing in Strasbourg, where the court sits.
Why is this judgment important?
This judgment is important because it addresses a practice that we witness not only in Turkey, but also in other countries in Europe and beyond: the use of domestic laws and judicial institutions to silence those who are in opposition to their governments. Such use of laws, courts, detention and imprisonment can target a wide range of opposition voices, such as opposition politicians, civil society organisations, human rights defenders, journalists, lawyers or academics. This practice undermines both democracy and the rule of law.
This judgment in a nutshell held that the detention of Mr. Demirtaş was such a practice. In doing so, it underlined the importance of opposition political speech as a core value of democratic societies in Europe and held that a person cannot be detained on grounds of exercising political speech. It has further held that the chain of judicial proceedings initiated against Mr. Demirtaş did not meet the quality of law requirements of the European Convention on Human Rights and the judiciary acted under political influence. As such, the judgment identified important rule of law problems in Turkey.
In 2019, Mr. Demirtaş was convicted on a separate charge, then released from pretrial detention. When he was about to be freed, having served his sentence, he was detained again. What are the responses in Turkey regarding the Grand Chamber’s most recent decision?
The Grand Chamber judgment recognised the practice of detaining a person for one charge, then releasing them, and then re-detaining them for another charge, but based on the same set of facts, as a continuing violation of the right to liberty of a person (and freedom from arbitrary or punitive detention). It held that the only way to remedy this violation was the immediate release of Mr. Demirtaş.
In the following days the government’s most influential names, including the President, declared the judgment as non-binding and indicated that they will not abide by it. This is a concerning development, as European Court of Human Rights judgments are unquestionably binding on all its 47 member states, and states are clearly obligated to put an end to violations that are found in a judgment against them under the European Convention. Once a judgment is final, it is the job of the Committee of Ministers of the Council of Europe, made up of representatives of all member states, to monitor and ensure that the judgments are effectively implemented.
How do you think this judgment will affect other HDP politicians and party members who have also been imprisoned over the past years? What implications does it hold for the future of democracy in Turkey?
The judgment is significant as it has, amongst others, found that the one-off and retroactive lifting of parliamentary immunity for Turkish Members of Parliament in 2016 was ad hominem and was against the Turkish Constitution’s clear protection of political speech of members of parliament, a protection that is enjoyed by all MPs across Europe. This judgment, therefore, means that the rights of all other HDP members of parliament who have been detained or convicted as a result of this amendment were also violated. The judgment further held that the application of Turkey’s counter-terrorism laws was not foreseeable. This is also significant for many HDP members, who are detained under these laws.
An effective implementation of this judgment, comprised of no less than 454 paragraphs, would heal many wounds of Turkey’s democratic and rule of law decay. But for this to happen, the root causes of the violations it identifies, including criminalisation of opposition political speech, political influence on the judiciary, unforeseeable application of criminal law have to be studied closely with a view to address them.
In your article for Verfassungsblog, you emphasize the importance of a holistic approach to the interpretation of the Convention on Human Rights in producing judgements that serve democratic aims. What do you mean by this?
The protection of human rights in general requires holistic thinking. For example, when we ask why we value freedom of political expression as a human right, we cannot think about this in isolation from how this right interacts with other rights, such as freedom from arbitrary detentions, or the right to stand for election, the right to peaceful assembly or protections against speech that incites violence or hatred. In this judgment, in my reading at least, the court has offered such a holistic thinking and analysis. It has asked whether the expressions of the applicant was political expression, whether the detention of the applicant was connected to his political expression or to a genuine and well founded suspicion that he committed a crime. It held that if a person is exercising their right to political expression, it must follow that they cannot be detained for exercising their rights. This is the holistic thinking that runs through this judgment, but for those patient readers, I strongly recommend reading the judgment itself or my blog post.
Why is understanding this case and its implications important for students of international relations, international law, and public policy today? How else can our current and future students become advocates in shaping tomorrow?
For students of international law and comparative public law, the judgment offers important innovations concerning the concept of continuing violations, evidentiary standards for finding ulterior political purposes (also known as bad faith violations) and the relationship between unconstitutional constitutional amendments and human rights law review.
For international relations and public policy students, the process of what happens next at the European and domestic levels should be of immense interest. How do judgments of the European Human Rights Court get implemented in a world where political scientists observe a trend towards de-democratisation in Europe? Will this judgment mobilise compliance constituents domestically and initiate a reform process? These are all questions that are worth following in 2021 and beyond.
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