The Whole Is More than the Sum of its Parts

The long-awaited Demirtaş v. Turkey (No 2) Grand Chamber judgment has finally been delivered, twenty two months after referral and sixteen months since the 18 September 2019 hearing.  The judgment, arguably the most important from the Grand Chamber in 2020, is highly significant for both political and jurisprudential reasons. Politically, the case concerns the ongoing deprivation of liberty of Selahattin Demirtaş – the former leader of the left-wing, pro-Kurdish Peoples’ Democratic Party (HDP), the second-largest opposition party in Turkey.  A major cyber attack on the website of the European Court of Human Rights on the day of the judgement’s delivery, as well as the statement by President Erdoğan on 23 December declaring it as non-binding highlight this.

Jurisprudentially there is much to examine in the judgement. The case concerns the Court’s review of whether a constitutional amendment that lifted the immunities of Turkish members of parliament was Convention compliant, and whether the ongoing deprivation of liberty of Mr. Demirtaş serves ulterior political purposes, namely the purpose of silencing him as an opposition leader.  Here I simply aim to explore one significant jurisprudential aspect of the judgment. This is the holistic interpretation of the Convention as a whole that informs the totality of the judgment.  In particular, I look how the judgment interprets Articles 5, 10, 18 and 46, making the Convention  more than the sum of its individual parts under these provisions.The Court’s clear assertion that core democratic rights and the rule of law must inform the interpretation of the Convention’s individual provisions as part of a crucible runs through the judgment as a whole.

The outcome

The judgment unanimously declared the application admissible and found violation of Article 3 Protocol 1 of the Convention.  It found violations of Article 10 and Article 5(3), sixteen votes to one. It found a violation of Article 5(1)c and a violation of Article 5 in conjunction with Article 18 for the full duration of the detention of Mr. Demirtaş by fifteen votes to two. In addition, the Court ordered, under Article 46, that the domestic authorities ‘must take all necessary measures to secure the immediate release of the applicant’ (para 442), also by fifteen votes to two. It found no no violation of Article 5(4) sixteen votes to one.

This outcome significantly departs from the judgment delivered by the Chamber on 20 November 2018 on three crucial aspects.

First, the Grand Chamber held that the Chamber’s decision to declare Article 10 claims of the applicant as unnecessary to examine was erroneous. It went on to examine Article 10 and found a violation on grounds that the intervention in the freedom of expression of the applicant did not meet the quality of law requirements. Second, the Grand Chamber disagreed with the Chamber’s finding that there was reasonable suspicion to detain the applicant on 4 November 2016 under Article 5(1)c, but that this detention became unlawful at a later date under Article 5(3). The Grand Chamber found an ongoing violation of Article 5(1)c starting from the date of Mr Demirtaş’s detention, holding that the evidence presented did not meet reasonable suspicion to detain on that day and continuously after that. Third, the Grand Chamber held that the ulterior political purpose of silencing a key opposition figure through detention was present from the start and has remained present until the date of the delivery of the judgment on 22 December 2020, and not that it materialised some time after his initial detention (as the Chamber found).

Holistic interpretation of the Convention 

The most significant jurisprudential aspect of this judgment is its internal consistency in carrying out a holistic interpretation of the Convention. 

The Grand Chamber’s holistic interpretation of the Convention and its act of making the separate provisions of the Convention as part of a whole manifests itself in at least three ways in the judgment.

First, the Grand Chamber held that whether there was reasonable suspicion to detain a major opposition political figure and member of parliament cannot be understood in isolation from the protection of political speech as a core value of any democracy (a democracy being the only political regime that the Convention deems capable of delivering the effective protection of human rights).  In reviewing the reasons for the initial detention of the applicant, therefore, the Court closely scrutinised whether the political speeches of the applicant as a member of parliament and  leader of an opposition party were reasons for his detention. (paras 327-340) This integrated analysis allowed the Court to clarify its ‘reasonable suspicion’ review standards under Article 5 in the light of Article 10. This has led to a cohering interpretation of Articles 5 and 10 by holding that protected political speech of a member of parliament cannot be evidence in and of itself to meet the criterion of reasonable suspicion to commit a crime under Article 5.   

The Court has taken one further step by underlining that an integrated approach to Articles 5 and 10 not only concerns members of parliament and their speech, but also political speech more generally for those who may be prosecuted for terrorism-related offenses based on their political expression. It has done so by pointing out that the use of counter-terrorism legislation by Turkish domestic courts to curb political speech did not meet the foreseeability criterion neither under Article 10 nor under Article 5 of the Convention (para 337).  This aspect of the case law significantly develops the Court’s earlier jurisprudence on the Convention’s standard of review under Article 5 for terrorism related offences (see, Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990).

Second, the Grand Chamber conducted a careful and principled scrutiny of the relationship between the margin of appreciation of states to enact laws, constitutional or ordinary, as they see fit as democratic states, and the rule of law review of the Convention for any intervention into protected rights, and applied these principles in this specific case.

Significantly, the Grand Chamber held that, whilst democratic polities have the right to shape and mould the direction of their constitutional frameworks (para 251), the amendment of constitutional or ordinary law frameworks by way of majoritarian voting procedures must meet the quality of law requirement, understood by the Court, primarily, through the lens of foreseeability (para. 254) and non-discrimination (para 269). Whilst foreseeability requires a clear understanding of how the law will operate by those affected by it, non-discrimination requires that laws are not directed against specific persons.

In this specific case, these principles first required scrutinising whether the one-off constitutional amendment carried out by a majority vote in the Turkish Parliament to remove immunity for members of parliament on 20 May 2016 met the quality of law requirement of foreseeability. In this respect, the Grand Chamber noted that the Turkish Constitution protects the political speech of members of parliament in and outside Parliament and the ordinary procedure of lifting of immunities for a member of parliament focuses on flagrante delicto. The Court then reviewed the official reasoning for this one-off constitutional amendment, determining that the reason for lifting these immunities was to punish the political speech of a subset of parliamentarians following the collapse of the peace process in the country (para 268). The Grand Chamber also noted that, as only opposition Kurdish members of parliament were subject to criminal investigations in the immediate aftermath of the constitutional amendment, this is what materialised in practice. The Grand Chamber finally noted that that there was no evidence that any member of parliament from the ruling coalition has been subject to prosecution following this amendment until this day.  The Grand Chamber then closely aligned itself with the Venice Commission’s clear finding that this constitutional amendment was a “misuse of the constitutional amendment procedure” (para 269) due to its ad hominem character. It held that the constitutional amendment did not meet either the foreseeability or requirement that laws are not directed against specific persons requirements ( paras 269 and 270).

Third, the Court used holistic interpretation with respect to formally separate, but substantially connected judicial practices concerning safeguards against the deprivation of liberty under Article 5 of the Convention. In the case of Mr. Demirtaş, this is a complicated affair. Mr Demirtaş was initially detained on 4 November 2016, whilst still a member of parliament, due to his political speeches. He was subsequently convicted of a separate charge, also concerning his political speech, whilst in detention. He was then released from detention after serving the time for his conviction but was then detained under a separate criminal investigation file. But this new investigation referred to the same set of facts that led to his initial detention (for which he had been released). For the Turkish government, this primarily meant that Mr. Demirtaş did not have a case before the Grand Chamber as his complaint concerned his initial detention of 4 November 2016 that had ended.

The Grand Chamber rejected this argument of slicing the deprivation of liberty of Mr. Demirtas into separate and unconnected events. It held that the deprivation of liberty of Mr. Demirtaş, which did not have a legal basis and ab initio pursued the ulterior motive of silencing him, was a continuing violation of Article 5. This held even when he was released, charged anew, and detained once again. Crucial to this was the same reasoning. The Grand Chamber found that given that he is detained for same set of facts, but under a different charge, this is a continuing violation of Article 5(1)c as well as Article 10 and, under Article 46 of the Convention, the only way to uphold his Convention rights was to release him (para 442)

The Court’s order to release the applicant under Article 46 of the Convention offers a third layer of coherency to case law of the Court: that of the relationship between finding Article 18 violations of the Convention and specification of remedies under Article 46 for the victims of restrictions of rights for ulterior purposes. In this judgment, the Court holds that if an individual is kept behind bars for ulterior political purpose it is only rational to demand the release of these individuals. What is more, this Article 46 case law now also coheres with the remedial case law of the Committee of Ministers, which held, in Mammadov v. Azerbaijan, that even in the absence of a request for release by the European Court of Human Rights, an Article 18 judgment in conjunction with Article 5(1) requires the release of applicants as a first step of individual measures towards the full reinstitution of their civil and political rights. This was subsequently confirmed by the Court by its Mammadov infringement decision.

In the light of this discussion, the partly dissenting and partly concurring opinion of the national judge of Turkey joined can be read (amongst other ways) as a rejection of any holistic interpretation of the Convention. In her dissenting opinion, the national judge argued for a number of isolated interpretation positions. These include the proposal to see the majority vote for the constitutional amendment in isolation from its ad hominem effects, the reasonable suspicion review in isolation from the Court’s freedom of expression standards and, finally, Mr. Demirtaş’s labyrinth of detentions as separate and isolated events. Each point is further offered support by the national judge by a blanket reference to the ‘subsidiary’ role of the European Court of Human Rights.

Conclusion

The jurisprudential significance of the Grand Chamber judgement in the case of Demirtaş v. Turkey cannot be understated. The judgment is important for showing that the whole of the Convention is more than its individual provisions, and that the Convention’s articles cannot be read in isolation from the object and purposes of the Convention as a whole, that is to defend human rights protections in democracies, to defend democratic rights and to defend the rule of law. This is a much welcomed development, especially considering that those who seek to undermine democratic rights and the rule of law do it piece by piece, law by law, detention by detention.

Başak Çalı was legal advisor to Mr. Demirtaş with respect to the proceedings before the Grand Chamber of the European Court of Human Rights.