European rights court accepts pro-Kurdish party’s application regarding deputies’ arrest

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The European Court of Human Rights (ECtHR) announced that it has accepted an application from the pro-Kurdish Peoples’ Democratic Party (HDP) regarding a constitutional amendment that lifted the parliamentary immunity of deputies, referring the case to the Turkish government for explanation, the Rudaw news website reported.

On May 20, 2016 the Turkish parliament passed a constitutional amendment lifting the parliamentary immunity of deputies, including that of the HDP. On various dates after the amendment took effect, 14 deputies from the HDP, including its then-co-chairs Selahattin Demirtaş and Figen Yüksekdağ, were placed in pre-trial detention as the subjects of criminal investigations.

The HDP and some other opposition deputies brought the constitutional amendment before Turkey’s Constitutional Court alleging that the amendment, in effect, was a “parliamentary decision” entailing the lifting of immunity and not a constitutional amendment. The court, however, declined to treat the amendment as a parliamentary decision and hence to review the case, upon which the HDP took the case to the European rights court.

The ECtHR announced that it had put HDP’s application on its agenda and requested an explanation from the Turkish government. The Strasbourg court also sent letters to the lawyers of arrested HDP deputies, posing questions as to the result of the lifting of deputies’ immunity, Rudaw reported.

The ECtHR, in its letter to the lawyers, asked whether the constitutional amendment constituted an interference with the freedom of expression of the deputies as members of an opposition party; whether the constitutional amendment and the lifting of immunity were carried out in accordance with the procedures set down in the constitution; and as a result of which predominant social necessity this step was taken.

The ECtHR also asked whether the procedure followed by the Turkish parliament in revoking immunity had a deterrent effect on the applicants’ exercise of freedom of expression, according to Rudaw.

Commenting on the development, Ramazan Demir, one of the lawyers who took the case to the ECtHR and the lawyer for Demirtaş, found the ECtHR’s move important although belated.

“The lifting of immunity, a process carried out directly under the guidance and supervision of the president and with the facilitation of the opposition who acquiesced to the amendment although they knew it was unconstitutional, had consequences for the HDP deputies first and foremost. It subsequently had consequences also for the main opposition Republican People’s Party (CHP). That said, it has been stated at every stage that the main target of the legislation was HDP deputies,” he said.

After the enactment of the constitutional amendment and the lifting of parliamentary immunity, the HDP’s Co-chair Demirtaş was arrested on November 4, 2016 on terrorism-related charges and has been in jail since then.

On November 20, 2018, the ECtHR ruled that Demirtaş’s lengthy pre-trial detention had violated the European Convention on Human Rights, ordering the Turkish government to pay 10,000 euros in compensation and calling for his release.

The Strasbourg court further found for the first time in a case originating from within Turkey a violation of Article 18 of the European Convention on Human Rights, which prohibits having hidden agendas in restricting the convention rights. Under Article 18 the Strasbourg court described Demirtaş’s arrest as “politically motivated” and found a dominant ulterior purpose behind his continued pre-trial detention.

According to Demir, from the questions posed by the ECtHR to the Turkish government, it has become apparent that the Strasbourg court will not consider the application at this time from the lens of Article 18, which he sees as an “important flaw.”

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