PROJE HAKKINDA.

Executive Summary 

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The submission provides an analysis of the reasoned judgment of the Ankara 22nd Assize  Court convicting Mr Demirtaş and Ms Yüksekdağ Şenoğlu, with a view to identifying the  acts and incidents relied upon by the domestic court to ground their convictions, with  particular emphasis on whether these are identical or substantially similar to those  already examined by the European Court of Human Rights (“ECtHR” or “the Court”) in its  judgments of Selahattin Demirtaş (no. 2) v Turkey [GC] (Application no. 14305/17, 22  December 2020) and Yüksekdağ Şenoğlu and others v Türkiye (Application no. 14332/17,  8 November 2022). 

Although the Government contends that the trial court’s judgment convicting Mr  Demirtaş and Ms Yüksekdağ Şenoğlu is based on distinct charges, facts, and allegedly  new evidence not examined by the ECtHR, and that their current detentions therefore fall  outside the scope of the Court’s judgments, the analysis demonstrates that the Ankara  22nd Assize Court’s judgment nevertheless relies to a significant extent on facts and  evidence already examined by the ECtHR, which were found to be insufficient to justify  Mr Demirtaş and Ms Yüksekdağ Şenoğlu’s detention. Moreover, the trial court reproduced problematic practices that were previously identified by the ECtHR. 

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Firstly, the trial court based Mr. Demirtaş’s and Ms Yüksekdağ’s conviction on certain social media posts shared on the HDP Twitter account concerning the events of 6 to 8 October 2014 and on certain political speeches delivered by them. However, the ECtHR had already ruled that the social media posts in question could not be interpreted as a call for violence, and that Mr Demirtaş’s and Ms Yüksekdağ Şenoğlu’s statements in question fell within the scope of expression protected under the Convention. 

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Secondly, the trial court disregarded the ECtHR’s findings on parliamentary inviolability, as it failed to halt the proceedings initiated on the basis of the May 2016 constitutional amendment, which the Court had characterised as an unforeseeable ad hominem exception to parliamentary inviolability under Article 83(2) of the Constitution. 

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Thirdly, the trial court treated participation in the activities of the Democratic Society  Congress (“DTK”) as evidence of “organisational membership”, notwithstanding the  ECtHR’s explicit finding that participation in DTK meetings and delivering speeches there  were incapable of satisfying an objective observer that Mr Demirtaş and Ms Yüksekdağ  Şenoğlu might have committed one of the offences, and that such activities were  protected under Articles 10 (freedom of expression) and 11 (freedom of association) of  the Convention. 

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Fourthly, the trial court failed to engage in any meaningful scrutiny of the serious flaws in the criminal investigation identified by the ECtHR. In particular, its review of the authenticity and reliability of the evidence used against Mr Demirtaş was reduced to a purely superficial exercise, falling manifestly short of the substantive assessment required under the Convention. 

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Lastly, the trial court’s reliance on the purportedly “new” evidence, some of which was  introduced into the criminal proceedings only after the Grand Chamber judgment, in  particular witness statements, to re-characterise the charges against Mr Demirtaş and  Ms Yüksekdağ Şenoğlu and to secure their convictions amounts to a judicial tactic aimed  at avoiding the obligation to release them, thereby constituting a continuing breach of  Article 18 of the Convention (limitation on use of restrictions on rights). 

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In light of the above, the NGOs call on the Committee of Ministers to ensure the full and  effective implementation of the Court’s judgments through the adoption of the necessary  individual and general measures, including the immediate release of Mr Demirtaş and Ms  Yüksekdağ Şenoğlu; the quashing and annulment of their convictions and related  criminal proceedings; the cessation of proceedings based on the exercise of Convention-  protected expression, parliamentary non-liability, or the same or similar factual context  already examined by the Court; and the adoption of systemic safeguards to prevent the continued misuse of criminal law, anti-terrorism legislation, and prosecutorial practices against opposition politicians in breach of the Convention, as set out in detail in the present submission.

 

DH-DD(2026)234: Rule 9.2 Communication from NGOs in the case of Selahattin Demirtas v. Turkey (No. 2).  Document distributed under the sole responsibility of its author, without prejudice to the legal or political position of the Committee of Ministers.