New joint Rule 9.2 submission to the Committee of Ministers of the Council of Europe on the implementation of the European Court of Human Rights judgment in the case of Demirtaş v. Turkey (2)

Council of Europe Ministers should use all the legal, political and diplomatic tools designated in the Convention system to increase the pressure on Türkiye to secure the immediate release of Mr. Demirtaş.

Turkey Human Rights Litigation Support Project, ARTICLE 19, Human Rights Watch, the International Commission of Jurists, and the International Federation for Human Rights presented on 4 November 2022 a joint Rule 9.2 submission to the Council of Europe Committee of Ministers on the implementation of the European Court of Human Rights judgment in the case of Selahattin Demirtaş v. Turkey (No.2) (Application no. 14305/17).

On 22 December 2020, the Grand Chamber of the Strasbourg Court found in its landmark judgment that Türkiye violated Articles 5(1) and (3) (the right to liberty and security), Article 10 (freedom of expression), Article 3 of Protocol No. 1 (the right to free elections) and Article 18 (restrictions on rights for an unauthorised purpose) in conjunction with Article 5 of the European Convention on Human Rights. In its judgment, the Grand Chamber held that Türkiye must take all the necessary measures to secure Mr. Demirtaş’s immediate release, and that “the continuation of his 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 § 1 of the Convention”. Despite the passage of more than two years since the judgment, Mr. Demirtaş remains in arbitrary detention.

In a series of previous Rule 9.2 submissions (dated 7 February 2021, 23 July 2021 and 24 May 2022), the NGOs set out that the ongoing pre-trial detention of Mr. Demirtaş, after the publication of the Grand Chamber judgment, is a consequence of criminal proceedings which have the same factual or legal basis as the earlier proceedings which led the European Court to find multiple violations of the Convention, and that this situation clearly constitutes a further prolongation of the violations of his rights. Thus, Mr. Demirtaş’s ongoing pre-trial detention is fully covered within the scope of the Grand Chamber judgment, in particular by its finding of a violation of Article 18 in conjunction with Article 5.

Following the Committee of Ministers’ interim resolution adopted in December 2021 agreeing with this conclusion and requesting Mr. Demirtaş immediate release, the Turkish authorities has been claiming that Mr. Demirtaş is currently detained on the basis of “new evidence and allegations” that are different in substance from those examined by the Court in its judgment.

In their November 2022 submission, the NGOs make a detailed analysis of the Government’s claims and roundly reject them. They reiterate that Mr. Demirtaş’s ongoing detention is fully within the scope of the Grand Chamber judgment and urge the Committee of Ministers to ensure that his detention is brought to an end. In this connection, the NGOs recommend the Committee to consider taking the following steps at its December 2022 meeting circle:

• The Committee of Ministers should disregard the false and misleading claims made by the Turkish government and firmly condemn Türkiye’s ongoing attempts to avoid executing the European Court’s judgment.

• The Committee should use all the legal, political and diplomatic tools designated in the Convention system to increase the pressure on Türkiye to secure the immediate release of Mr. Demirtaş, especially taking into account the deleterious impact his ongoing detention will have on the upcoming presidential and parliamentary elections in June 2023. This should include the triggering of infringement proceedings against Türkiye under Article 46(4) of the Convention in the event that Mr. Demirtaş remains in detention, as well as efforts to ensure the direct and continuing engagement, through all available channels, by member states, the Secretary General, the PACE, and all other Council of Europe institutions.

• This case should remain high on the agenda of the Council of Europe institutions and member states in any relations with Türkiye and its full resolution must be identified as one of the main conditions for maintaining constructive co-operation with the country.

The submission can be accessed here.