Interim Resolution CM/ResDH(2023)36

Execution of the judgment of the European Court of Human Rights

Selahattin DemirtaÅŸ (No. 2) against Turkey

(Adopted by the Committee of Ministers on 9 March 2023 at the 1459 th meeting of the Ministers' Deputies)

Application

Case

Judgment of

Final on

14305/17

SELAHATTÄ°N DEMÄ°RTAÅž (No 2)

22/12/2020

22/12/2020

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Recalling the Court’s findings, in connection with the applicant’s arrest and pre-trial detention between 4 November 2016 and 7 December 2018, that the domestic courts failed to give specific facts or information that could give rise to a reasonable suspicion that he had committed the offences in question and justify his detention (violations of Article 5, paragraphs 1 and 3, of the Convention); that the way in which his parliamentary inviolability was removed by the amendment of Article 83 paragraph 2 of the Turkish Constitution on 20 May 2016, and also deficiencies in the reasoning of the courts in ordering the pre-trial detention, violated his rights to freedom of expression and to sit as a member of parliament (violations of Article 10 and Article 3 of Protocol No. 1); and that the pre-trial detention moreover pursued an ulterior purpose, namely to stifle pluralism and limit freedom of political debate (violation of Article 18 taken in conjunction with Article 5 paragraph 1);

Recalling further the Court’s indication under Article 46 of the Convention that the nature of the violation under Article 18 left no real choice as to the measures required to remedy it, and that any continuation of the applicant’s pre-trial detention on grounds pertaining to the same factual context would entail a prolongation of the violation of his rights as well as a breach of the obligation on the respondent State to abide by the Court’s judgment in accordance with Article 46 paragraph 1 of the Convention;

Reiterating that the argument of the Turkish authorities that the applicant’s current pre-trial detention falls outside the scope of the Court’s judgment was examined and rejected by the Court in its indication under Article 46, as well as by the Committee at its 1398 th and 1419 th meetings (9-11 March 2021 (DH) and 30 November – 2 December 2021 (DH) respectively);

Underlining that the obligation of restitutio in integrum calls for measures to restore the applicant as far as possible to the position he would have enjoyed had these violations not occurred and that such measures should be compatible with the conclusions and spirit of the Court’s judgment, involving good faith on the part of the respondent State, which is of paramount importance where the Court has found a violation of Article 18;

Recalling the authorities’ submissions ( DH-DD(2022)40 ; DH-DD(2022)434 ; DH-DD(2022)727 ) that the Ankara Assize Court, since 27 October 2021, has been refusing the applicant’s requests for release on account of new evidence in the case-file which, according to this court, was in substance different from that examined by the European Court in its judgment and allegedly demonstrated a deliberate intention on the part of the applicant to provoke violence, raising strong suspicions that he had committed the alleged offences;

Recalling further that at its 1428 th meeting (March 2022) (DH), the Committee considered that the new evidence raised a question whether the applicant’s current detention remained a negative consequence of the violations found by the Court and in these circumstances further guidance on this issue was needed before it could make its decisive assessment as to the individual measures and encouraged the authorities to take all possible steps to ensure that the Constitutional Court made its determination concerning the applicant’s ongoing detention in the shortest possible timeframe;

Recalling finally that at its 1451 st meeting (December 2022) (DH), the Committee expressed deep regret that, despite its repeated calls, the Constitutional Court had not delivered its decision and the applicant remained in detention; and accordingly urged the authorities, once again, to take all possible steps to ensure that the Constitutional Court makes its determination concerning the applicant’s ongoing detention in the shortest possible timeframe and with full regard to the Court’s findings, particularly its reasoning under Article 18 of the Convention, and to ensure the applicant’s immediate release, for example by exploring alternative measures to detention pending the completion of the proceedings before the Constitutional Court;

EXPRESSED its profound concern that the applicant has been continuously deprived of his liberty since November 2016;

DEPLORED the absence of a decision by the Constitutional Court on the applicant’s current detention since 7 November 2019, particularly in view of the Court’s finding under Article 18 that the applicant’s detention pursued the ulterior purpose of stifling pluralism and limiting freedom of political debate;

EXHORTED the authorities to take all possible steps to ensure that the Constitutional Court makes its determination concerning the applicant’s ongoing detention in the shortest possible timeframe and with full regard to the Court’s findings, and to ensure the applicant’s immediate release, for example by exploring alternative measures to detention pending the completion of the proceedings before the Constitutional Court.