Case of European Court of Human Rights, November 20, 2018 (case SELAHATTİN DEMİRTAŞ v. TURKEY (No. 2))

Defense:TURKEY (No. 2)
Resolution Date:November 20, 2018
SUMMARY

Preliminary objection dismissed (Art. 35) Admissibility criteria;(Art. 35-2-b) Matter already submitted to another international procedure;Preliminary objection allowed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Preliminary objection dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Preliminary objection joined to merits and... (see full summary)

 
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SECOND SECTION

CASE OF SELAHATTİN DEMİRTAŞ v. TURKEY (No. 2)

(Application no. 14305/17)

JUDGMENT

STRASBOURG

20 November 2018

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Selahattin Demirtaş v. Turkey (no. 2),

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

Robert Spano, President,Ledi Bianku,Işıl Karakaş,Paul Lemmens,Valeriu Griţco,Jon Fridrik Kjølbro,Ivana Jelić, judges,and Stanley Naismith, Section Registrar,

Having deliberated in private on 23 October 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

  1. The case originated in an application (no. 14305/17) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Selahattin Demirtaş (“the applicant”), on 20 February 2017.

  2. The applicant was mainly represented by Mr M. Karaman, a lawyer practising in Diyarbakır. The Turkish Government (“the Government”) were represented by their Agent.

  3. The applicant alleged, in particular, that his pre-trial detention had breached Articles 5, 10 and 18 of the Convention and Article 3 of Protocol No. 1 to the Convention.

  4. On 29 June 2017 notice of the application was given to the Government.

  5. The applicant and the Government each filed observations on the admissibility and merits of the case.

  6. The Council of Europe Commissioner for Human Rights (“the Commissioner for Human Rights”) exercised his right to intervene in the proceedings and submitted written comments (Article 36 § 3 of the Convention and Rule 44 § 2 of the Rules of Court).

  7. In addition, written comments were submitted to the Court by the Inter-Parliamentary Union (“the IPU”) and jointly by the non-governmental organisations ARTICLE 19 and Human Rights Watch (“the intervening non-governmental organisations”). The Section President had granted leave to the IPU and the organisations in question to intervene under Article 36 § 2 of the Convention and Rule 44 § 3.

  8. The Government and the applicant each replied to the intervening parties’ comments.

  9. The Court notes that there are currently a number of applications pending before it concerning the pre-trial detention of members of parliament. Under its new prioritisation policy, effective since 22 May 2017, cases where applicants have been deprived of their liberty as a direct consequence of an alleged violation of Convention rights, as in the present case, are to be given priority. The Court observes that on 21 December 2017 the Constitutional Court gave its judgment on the individual application lodged by the applicant. The Court also considers that the applicant’s application should be examined as a priority.

    THE FACTS

    1. THE CIRCUMSTANCES OF THE CASE

  10. The applicant was born in 1973. He is currently detained in Edirne.

  11. At the material time, the applicant was one of the co-chairs of the Peoples’ Democratic Party (HDP), a left-wing pro-Kurdish political party. From 2007 onwards he was a member of the Turkish Grand National Assembly (“the National Assembly”). Following the parliamentary elections on 1 November 2015, he was re-elected as a member of the National Assembly for the HDP, and his term of office ended at the time of the parliamentary elections on 24 June 2018.

  12. In the presidential election of 10 August 2014 the applicant received 9.76% of the vote. He also stood in the presidential election on 24 June 2018 and received 8.32% of the vote.

    1. Events of 6-8 October 2014

  13. In September and October 2014, members of the illegal armed organisation Daesh (Islamic State of Iraq and the Levant) launched an offensive on the Syrian town of Kobani (Ayn al-Arab in Arabic), some 15 km from the Turkish border town of Suruç. Armed clashes took place between Daesh forces and the People’s Protection Units (YPG), an organisation founded in Syria and regarded as a terrorist organisation by Turkey on account of its links with the PKK (Workers’ Party of Kurdistan, an illegal armed organisation).

  14. From 2 October 2014 onwards, a large number of demonstrations were held in Turkey and several non-governmental organisations at local and international level published statements calling for international solidarity with Kobani against the siege by Daesh.

  15. On 5 October 2014 a tweet was published from a Twitter account allegedly controlled by one of the PKK leaders, reading as follows:

    “We call upon all the young people, women and everyone from 7 to 70 to stand up for Kobani, to protect our honour and dignity and to occupy the metropolitan areas.” (“Gençleri kadınları 7’den 70’e herkesi Kobane’ye sahip çıkmaya onurumuzu namusumuzu korumaya metropolleri işgal etmeye çağırıyoruz.”)

  16. On 6 October 2014 the following three tweets were published from the official HDP Twitter account, @HDPgenelmerkezi:

    – “Urgent call to our people! Urgent call to our people from the HDP central executive board, currently in session! The situation in Kobani is extremely dangerous. We urge our people to take to the streets and to support those protesting in the streets against Daesh attacks and the AKP [Justice and Development Party] government’s embargo over Kobani” (“Halklarımıza acil çağrı! Şuanda toplantı halinde olan HDP MYK’dan halklarımıza acil çağrı! Kobané’de duruş son derece kritiktir. IŞİD saldırılarını ve AKP iktidarının Kobané’ye ambargo tutumunu protesto etmek üzere halklarımızı sokağa çıkmaya ve sokağa çıkmış olanlara destek vermeye çağırıyoruz”);

    – “We call upon all our people, from 7 to 70, to [go out into] the streets, to [occupy] the streets and to take action against the attempted massacre in Kobani” (“Kobané’de yaşanan katliam girişimine karşı 7 den 70 e bütün halklarımızı sokağa, alan tutmaya ve harekete geçmeye çağırıyoruz”);

    – “From now on, everywhere is Kobani. We call for permanent resistance until the end of the siege and brutal aggression in Kobani” (“Bundan böyle her yer Kobane’dir. Kobane’deki kuşatma ve vahşi saldırganlık son bulana kadar süresiz direnişe çağırıyoruz”).

  17. On the same day, the following statement from an organisation known as the KCK (Koma Civakên Kurdistan – “Kurdistan Communities Union”, identified as the “urban wing” of the PKK by the Court of Cassation, was published on the website www.firatnews.com. The statement read as follows:

    “The wave of revolution that started in Kobani must spread throughout Kurdistan, and on that basis, we call for an uprising by the Kurdish youth ... All those among our people who can make it to Suruç must go there immediately without wasting a second, and every inch of Kurdistan must rise up for Kobani ... We call upon all our people, from 7 to 70, to make life unbearable for Daesh and their collaborators the AKP wherever they are, and to take a stand against these gangs [responsible for] massacres by fostering rebellion [Serhildan in Kurdish] up to the highest level.” (“Kobani ile başlayan devrim dalgası tüm Kürdistan’a yayılmalı ve Bu temelde Kürt gençliğinin ayaklanması çağrısında bulunuyoruz... Bütün halkımız Suruç’a gidebilecekler hemen bir saniye zaman kaybetmeden gitmeli ve Kürdistan’ın her karış toprağı Kobanê için ayağa kalkmalıdır... Tüm halkımızı yediden yetmişe bulunduğu her yerde yaşamı IŞİD ve işbirlikçisi AKP’ye dar etmeye ve serhıldanı en üst düzeyde geliştirerek bu katliamcı çetelere karşı durmaya çağırıyoruz.”)

  18. On 7 October 2014 the following statement by the KCK Executive Council was published on the same website:

    “Our people must carry on the resistance they have started against this terrible and insidious massacre, by spreading it everywhere and at all times. Our people in the North [in the region of south-eastern Turkey] must give the Daesh gangs and their supporters no chance of survival. All the streets must be turned into the streets of Kobani and the strength and organisation of this historic and unique resistance must be developed further. From now on, millions of people must take to the streets and the border must turn into a flood of people. All Kurds and all honourable people, friends and groups who are sympathetic [to our cause] must take action. Now is the time to develop and amplify the act of resistance. On this basis, we call upon our people, all groups that are sympathetic [to our cause] and our friends to embrace and amplify the Kobani resistance and we call upon all young people, particularly the Kurdish youth, to join the ranks of freedom in Kobani and to intensify the resistance.” (“Halkımız bu çirkin ve sinsi katliam karşısında başlattığı mücadeleyi her yere, her zamana taşıyarak süreklileştirmelidir. Kuzey halkımız İŞİD çetelerine, uzantılarına ve destekçilerine hiçbir yerde yaşam şansı tanımamalıdır. Tüm sokaklar Kobani sokaklarına dönüştürülmeli, tarihin bu eşsiz direnişine denk bir direniş gücü ve örgütlülüğü geliştirilmelidir. Bu saatten itibaren milyonlar sokaklara akmalı, sınır insan seline dönüşmelidir. Her Kürt ve onurlu her insan, dostlar, duyarlı kesimler bu andan itibaren eyleme geçmelidir. An direniş eylemini geliştirme ve büyütme anıdır. Bu temelde tüm halkımızı, duyarlı kesimleri, dostlarımızı Kobani direnişini sahiplenerek büyümeye, başta Kürt gençleri olmak üzere tüm gençleri Kobani de özgürlük saflarına katılarak direnişi yükseltmeye çağırıyoruz.”)

  19. From 6 October 2014 onwards, the demonstrations became violent. Clashes took place between different groups, and the security forces intervened forcibly. On unspecified dates, the local governors of a number of towns imposed curfews.

  20. In two statements on 7 and 9 October 2014 the applicant emphasised that he was opposed to the use of violence during the demonstrations. He stated that his political party was prepared to cooperate with the government but that the latter first needed to identify those who had provoked the violence.

  21. According...

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