TrustHLT/LaCour huggingface dataset:
TP1 (ThirdParty): The crucial problem in this connection is the fact that whether an investigation is initiated or not appears to be heavily determined by prevailing political circumstances.
TP1 (ThirdParty): This uncertainty discourages legitimate dissent and criticism.
TP1 (ThirdParty): I would also like to add that since my predecessor's written submission in this case, the independence and impartiality of the Turkish judiciary continued to deteriorate as a direct result of certain measures taken during the two-year state of emergency following the attempted coup in Turkey in July 2016.
TP1 (ThirdParty): These measures included changes to the Turkish Council of Judges and Prosecutors in clear contradiction with the Council of Europe standards and a suspension of ordinary safeguards and procedures for the dismissal, recruitment, and appointment of judges and prosecutors.
TP1 (ThirdParty): Around 3,900 judges and prosecutors were thus dismissed and 10,000 appointed.
TP1 (ThirdParty): This may explain why the Turkish judiciary appears today less able and willing than before to uphold the rights set out in the convention when confronted with sensitive cases.
TP1 (ThirdParty): In the specific case of the parliamentarians, my predecessors put to this court that the detention of HDP MPs formed part of a more general pattern of repression against different groups in Turkey who are critical of official policy.
TP1 (ThirdParty): He gave the example of the removal of mayors from office and their replacement by non-elected officials using criminal investigations against them as a pretext.
TP1 (ThirdParty): This practice is still ongoing, despite criticism from many bodies of the Council of Europe, Venice Commission, Parliamentary Assembly, Congress of Local and Regional Authorities, and my own office.
TP1 (ThirdParty): Such measures are symptomatic of the continuing repressive climate affecting the democratic opposition in Turkey, especially the applicants' party.
TP1 (ThirdParty): It is against this background that I see the interplay between judicial, political, and legislative processes that led to the eventual detention of the applicant and other MPs.
TP1 (ThirdParty): Crucially, this included the lifting of their parliamentary immunity in what was considered a misuse of the constitutional amendment procedure by the Venice Commission and by the Parliamentary Assembly.
TP1 (ThirdParty): The resulting criminal proceedings affected almost all MPs of HDP and some MPs of CHP, since the prosecutors has been disproportionately active in initiating investigation against them, mainly targeting their statements for supposed terrorist propaganda, incitement to hatred, or insulting the president.
TP1 (ThirdParty): The preamble of the constitutional amendment itself stated that its purpose was to address public indignation about the, I quote, statements of certain deputies constituting emotional and moral support to terrorism, end of quote.
TP1 (ThirdParty): For an objective observer, this situation would create a strong impression that these criminal proceedings were seriously flawed from the very outset and sought to silence them as parliamentarians.
TP1 (ThirdParty): It bears repeating that these proceedings also systematically disregarded Turkey's obligation under Article 10 of the Convention, as articulated by this court in numerous judgments, many of which against Turkey.
TP1 (ThirdParty): In these circumstances, it is difficult to discredit the argument that criminal proceedings have been and are being used selectively and ab initio, starting with criminal investigations, arrests, and initial detention decisions with the express purpose to silence dissenting voices and to discourage criticism in the society.
TP1 (ThirdParty): The chilling effect caused by this state of affairs is very palpable in all segments of Turkish society today.
TP1 (ThirdParty): And I think that Turkey and Turkish courts at all levels need the guidance of this court more than ever to change this course.
TP1 (ThirdParty): I hope my comments will be helpful to the court.
TP1 (ThirdParty): And I thank you for your attention.
Linos-Alexandre Sicilianos (JudgeP): I now invite the judges of the Grand Chamber wishing to do so to put their questions to the partners, Judge Felici.
Gilberto Felici (Judge): Thank you so much, Mr. President.
Gilberto Felici (Judge): I have just three questions.
Gilberto Felici (Judge): First of all, I'm coming back on a subject touched in the hearing, just to resume definitively.
Gilberto Felici (Judge): It appears from the party's submission that they disagree on a factual aspect of the case.
Gilberto Felici (Judge): According to the applicant in paragraph 144 of its observation, following and after the lifting of the parliamentary immunities, no criminal investigation was initiated against the deputy belonging to the AKP or to the MHP, although the parliamentary immunities were also listed.
Gilberto Felici (Judge): The government submit in paragraph 90 of its observation that five AKP deputies and one MHP deputy were also convicted or sentenced after the lifting of their parliamentary immunity.
Gilberto Felici (Judge): I will invite the government to clarify the court on this matter.
Gilberto Felici (Judge): In particular, are there any AKP and or MHP deputies who have been sentenced after the lifting of their parliamentary immunity?
Gilberto Felici (Judge): Where appropriate, the applicant may also answer this question.
Gilberto Felici (Judge): Second, the judgment issued by the chamber exactly at paragraph 275 has established that due to the conclusion already reached, it is not necessary to pronounce specifically on the alleged violation of Article 10, either from the point of view of admissibility or from that of the ground.
Gilberto Felici (Judge): I would like to know from both parties what their opinion is in this respect, having regard to the court's jurisprudence on this subject.
Gilberto Felici (Judge): Third, in the Turkish legal system, is it possible for a deputy placed in pretrial detention to propose drafting law?
Gilberto Felici (Judge): Where appropriate, the parties are invited to produce relevant legislation in this area.
Gilberto Felici (Judge): Thank you so much.
Linos-Alexandre Sicilianos (JudgeP): Thank you. Judge Yüksel, please.
Saadet Yüksel (Judge): I have two questions, and the first is directed to both parties.
Saadet Yüksel (Judge): The second is directed to the applicant.
Saadet Yüksel (Judge): So, the applicant's lawyers have submitted to the court a document issued on 11th of December, 2018, according to which the applicant started to serve his sentence of four years and eight months as of 7th of September, 2018.
Saadet Yüksel (Judge): So, in light of this evidence, as of this date, can the applicant still be considered in pretrial detention or in detention because of his conviction and be deprived of his liberty for the purposes of Article 5.1A of the Convention?
Saadet Yüksel (Judge): And my second question is directed to the applicant.
Saadet Yüksel (Judge): In your observations, you pointed out in particular that Turkish law did not allow detained members of Parliament to vote by proxy, since they are required to be physically present in order to vote.
Saadet Yüksel (Judge): So, in this respect, I wonder if you are aware of any European state that allows a detained member of Parliament to vote by proxy.
Saadet Yüksel (Judge): I ask, as it may be relevant if the court were to determine the existence of a European consensus on this issue.
Linos-Alexandre Sicilianos (JudgeP): Thank you, Judge Nußberger.
Angelika Nußberger (Judge): I'm interested in the status of parliamentarians in Turkey.
Angelika Nußberger (Judge): And so let me just quote Article 83, Paragraph 1 of the Constitution.
Angelika Nußberger (Judge): Members of the Turkish Grand National Assembly shall not be liable for their votes and statements in the course of the Assembly's work, for the views they express before the Assembly, or unless the Assembly decides otherwise on the proposal of the Bureau for a particular sitting, for repeating or disseminating such views outside the Assembly.
Angelika Nußberger (Judge): So this is a clear rule on parliamentary non-liability.
Angelika Nußberger (Judge): The intention is, as stated in the judgment of the Turkish Constitutional Court of 21st March 1994, I quote, to allow those responsible for legislative duties to carry them out in the knowledge that they were safely sheltered, and rightly so, from all worry and pressure.
Angelika Nußberger (Judge): So this was not changed.
Angelika Nußberger (Judge): It was Article 83, Paragraph 2 that was changed, not this rule on non-liability.
Angelika Nußberger (Judge): So my question is now how to interpret or how this rule is interpreted in Turkey.
Angelika Nußberger (Judge): First, is there a specific procedure if statements are made outside Parliament?
Angelika Nußberger (Judge): It's written that on the proposal of the Bureau, a decision of the Assembly for a particular sitting.
Angelika Nußberger (Judge): So is there always a specific decision if speeches outside Parliament are not under this protection?
Angelika Nußberger (Judge): And were there such decisions taken in the case of the applicant?
Angelika Nußberger (Judge): And how is it interpreted to say for repeating and disseminating views outside?
Angelika Nußberger (Judge): Must it be a literal repetition, or can it be general?
Angelika Nußberger (Judge): How is that interpreted?
Angelika Nußberger (Judge): And if the article talks about speeches, does it also apply to tweets or other forums in the social media?
Angelika Nußberger (Judge): This is my first question.
Angelika Nußberger (Judge): And my second question, I have closely followed what the government's representative said about foreseeability under Article 83.2
Angelika Nußberger (Judge): and the change in the Constitution.
Angelika Nußberger (Judge): And I just want to ask, if I understand you correctly, that you don't include the aspect of procedural guarantees in foreseeability.
Angelika Nußberger (Judge): And the last question concerns evidence.
Angelika Nußberger (Judge): I understand that there were two criminal different crimes, membership of a terrorist organization and incitement to hatred.
Angelika Nußberger (Judge): And on the second crime, membership of a terrorist organization, I wonder what were the concrete elements on which this suspicion was based on.
Angelika Nußberger (Judge): The applicant argues in observations paragraph 32 that this was based only, I quote now the applicant, on the similarity of a tweet by the HDP party and a tweet by Murat Karayilan of the PKK.
Angelika Nußberger (Judge): But this was proved to be a fake account.
Angelika Nußberger (Judge): So I wonder, is that true?
Angelika Nußberger (Judge): Was it really a fake account?
Angelika Nußberger (Judge): And what were the elements the suspicion was based on?
Linos-Alexandre Sicilianos (JudgeP): Judge Eicke.
Tim Eicke (Judge): Thank you very much, Mr. President.
Tim Eicke (Judge): Just one quick follow-up question, in a sense, to the questions asked by my colleague, Judge Nußberger.
Tim Eicke (Judge): She's asked a question about the relevance of the procedural guarantees before the Grand National Assembly of Turkey in relation to individual cases of the seeking and lifting of the immunity.
Tim Eicke (Judge): And I would equally be interested in that.
Tim Eicke (Judge): The second question for me comes from her last question about evidence in relation to membership of a terrorist organization.
Tim Eicke (Judge): I'm not so much concerned about that.
Tim Eicke (Judge): She's asked that question.
Tim Eicke (Judge): My concern is more in terms of foreseeability.
Tim Eicke (Judge): On what basis can it be said, or is it said, that the definition applied by the Turkish courts of what is a terrorist organization was, in fact, foreseeable?
Tim Eicke (Judge): And what is that definition based on?
Tim Eicke (Judge): And if it is based solely on national law, in how far is this court, or should this court, have regard to wider European or worldwide acceptance of that definition as a terrorist organization outside Turkey?
Linos-Alexandre Sicilianos (JudgeP): Thank you, Judge Harutyunyan.
Armen Harutyunyan (Judge): Thank you, Mr. President.
Armen Harutyunyan (Judge): I have two questions, one for applicants and one for government.
Armen Harutyunyan (Judge): The first question for applicants, the government claims that your client refused to appear before the trial court, which ordered his continued detention.
Armen Harutyunyan (Judge): If so, did the applicant's refusal contribute to the overall length of the trial detention?
Armen Harutyunyan (Judge): And my second question for government, that shortly after the declaration of the Dolmabahçe consensus, the president of Turkey, Mr. Recep Tayyip Erdoğan,
Armen Harutyunyan (Judge): said that it was out of the question that the government would reach an agreement with a terrorist organization.
Armen Harutyunyan (Judge): And several weeks before the parliamentary elections of 7 June 2015, the Deputy Prime Minister, Mr. Erdoğan],
Armen Harutyunyan (Judge): made the following statement to the press.
Armen Harutyunyan (Judge): If the HDB exceeds the threshold, meaning the representation in parliament, and the AKP government loses power, there will be no solution process.
Armen Harutyunyan (Judge): Does it mean that the solution process with the political opposition party was conditioned by not exceeding the threshold of representativeness?
Armen Harutyunyan (Judge): And how such statements can be interpreted within the context of free elections?
Armen Harutyunyan (Judge): Thank you.
Linos-Alexandre Sicilianos (JudgeP): Thank you, le juge Potocki.
André Potocki (Judge): Je voudrais revenir un instant sur les questions qui ont été posées par Mme la juge Nußberger et par M. le juge Eicke.
André Potocki (Judge): L'immunité parlementaire a notamment pour but de protéger la liberté d'expression renforcée dont doivent bénéficier les parlementaires.
André Potocki (Judge): A ce titre-là, il bénéficie d'une non-responsabilité pour les discours qu'il prononce.
André Potocki (Judge): Lorsque néanmoins une demande de levée d'immunité parlementaire est présentée, il appartient à l'Assemblée, dont le parlementaire est membre, de vérifier avec beaucoup d'attention qu'il ne s'agit pas d'une façon détournée ou directe de porter atteinte à cette liberté d'expression que protège l'immunité.
André Potocki (Judge): Cet examen auquel doit procéder l'Assemblée à qui une demande de levée d'immunité est présentée doit être d'autant plus attentif, me semble-t-il, lorsque cette demande d'immunité se rattache à des discours prononcés par un parlementaire.
André Potocki (Judge): C'est bien le cas dans notre affaire où le requérant a fait l'objet d'une levée de son immunité parlementaire, principalement au titre des discours qu'il a prononcés.
André Potocki (Judge): Ce qui est difficile pour moi à comprendre, et les explications données par les partis me seront précieuses, c'est comment cet examen vigilant, destiné à prononcer la nécessaire liberté d'expression d'un parlementaire, comment cet examen vigilant peut-il être mené lorsqu'il se traduit par une décision qui prend la forme d'un article général ajouté à la Constitution et qui s'applique sans précision aucune des cas individuels à l'ensemble des députés pour lesquels une demande de levée d'immunité était présentée auparavant par le gouvernement.
Linos-Alexandre Sicilianos (JudgeP): Thank you very much, Judge Turković.
Ksenija Turković (Judge): I just would like to follow up to the question of Judge Eicke, who asked to explain how the terrorist organization is understood, and this is actually a follow-up to what we have heard by the Commissioner.
Ksenija Turković (Judge): In terms of over-broadness and how in Turkish society and Turkish judiciary this is approached nowadays, I would just like to broaden that a little bit, and if you can also address the issue of terrorist propaganda.
Ksenija Turković (Judge): So not only terrorist organization, but terrorist propaganda and how is that understood.
Linos-Alexandre Sicilianos (JudgeP): Thank you very much, the court will now withdraw for 20 minutes, following which the parties will be able to submit brief observations and replay to each other submissions and reply to the questions of the Judges.
AP4 (Applicant): If I may take the floor.
Linos-Alexandre Sicilianos (JudgeP): Yes. Mr. Altıparmak, yes please.
AP4 (Applicant): I'll try to answer questions about immunity and terrorism charges in Turkey.
AP4 (Applicant): The government claims that the constitutional amendment was foreseeable from both substantive and procedural perspectives.
AP4 (Applicant): In Turkish constitution, there are two types of immunity, non-liability and inviolability.
AP4 (Applicant): The first paragraph of Article 83 is related to legislative non-liability of MPs and implies that MPs shall not be punished for the expressions they use in parliament and repeat outside.
AP4 (Applicant): What we argue is this cannot be understood literally because a leader of a political party obviously will have to speak about different issues in the parliament as well as outside.
AP4 (Applicant): So in most cases, what he says in the parliament will be repeated but not in the same words outside the parliament.
AP4 (Applicant): It will be completely meaningless if we ask the applicant to memorize everything he said in the parliament and to repeat all of them outside the parliament.
AP4 (Applicant): When it comes to procedural foreseeability, normally when an immunity of an MP is lifted at the parliament, there is a procedure.
AP4 (Applicant): The parliament has the competence to decide whether the speech falls under paragraph one of Article 83 or paragraph two of Article 83.
AP4 (Applicant): With the blanket and retroactive constitutional amendment to lift parliamentary immunities on May 2016, the government took this opportunity from the parliament so the parliament could not decide whether the speeches of the applicants before you fall within the protection of Article 83, paragraph one.
AP4 (Applicant): So he, before the prosecutors, before all legal institutions in Turkey put this forward and stated that my speeches fall within the protection of Article 83, paragraph one, which is about non-liability of MPs.
AP4 (Applicant): But all his claims to this effect have been rejected or ignored by judicial authorities.
AP4 (Applicant): So for us, of course, his speeches outside the parliament, as long as it is related to the policy of the political party, are covered by paragraph one of Article 83.
AP4 (Applicant): And also, tweets and social media sharings of the applicants, because he shared not only his view, but the views of the HDP.
AP4 (Applicant): And I'm coming now to the question about terrorism charges.
AP4 (Applicant): This is quite a difficult question.
AP4 (Applicant): Our client is on trial now not for membership to terrorist organization.
AP4 (Applicant): Now he is accused of running a terrorist organization.
AP4 (Applicant): Not a single criminal file included in this case was about running a terrorist organization when they were submitted to the parliament.
AP4 (Applicant): But on January 2017, the prosecutor at the Erbaker indicted applicants for running a terrorist organization.
AP4 (Applicant): And we need to look at the decision of the Erbaker criminal peace judge on 4 November 2016.
AP4 (Applicant): You will see in that decision there is no evidence whatsoever about running a terrorist organization or being a member of a terrorist organization.
AP4 (Applicant): All of the evidence put forward by the prosecutor and relied on by the criminal peace judge were about his speeches made at different places.
AP4 (Applicant): This brings us to the question how terrorism, membership to terrorism, and terrorist propaganda are defined in Turkey.
AP4 (Applicant): In 2017, dear members of the court, only in one year, 136,000 people in Turkey were indicted for being a member of a terrorist organization.
AP4 (Applicant): At the very same year, 460,000 new investigations were initiated under that provision.
AP4 (Applicant): So the answer of the question is almost impossible to give, because every act of an opposition politician might be easily classified under this category.
AP4 (Applicant): And this is what happened in this court.
AP4 (Applicant): A lot of speeches of the applicants was brought under this definition.
AP4 (Applicant): And this is also true for the terrorist propaganda charges.
AP4 (Applicant): At the same year, 2017, there were new 24,000 indictments brought by prosecutors under Article 7, Paragraph 2 of anti-terror law.
AP4 (Applicant): So again, you can easily be charged for making terrorist propaganda, as happened in a peace petitioner's case when they invited the government to seize human rights violations.
AP4 (Applicant): In this case, at the beginning, 19 of charges were terrorist propaganda.
AP4 (Applicant): But when the prosecutor brought the case, it converted the case from a propaganda case to a membership case.
AP4 (Applicant): This is very important, because it brings us to the question whether Article 10 should have been examined in the chamber judgment.
AP4 (Applicant): Yes, dear members of the court.
AP4 (Applicant): If an ordinary judicial system was working, the applicant will be prosecuted one by one for every speech he made.
AP4 (Applicant): And he could have had the chance to bring every violation to the Strasbourg court under Article 10.
AP4 (Applicant): Now, firstly, criminal courts, then the Constitutional Court, and finally, the chamber did not examine under which conditions, in which context, the applicants made those speeches.
AP4 (Applicant): Without defining this, you cannot decide that there was a reasonable suspicion of him having committed a crime.
AP4 (Applicant): Because if his speeches fall within under Article 10 of the convention, obviously, there can't be any reasonable suspicion about him having committed a crime.
AP4 (Applicant): Thank you for your patience.
AP4 (Applicant): And I'm now giving floor to Professor Başakcalı give other answers.
AP2 (Applicant): Thank you very much, Mr. President,
AP2 (Applicant): dear members of the court.
AP2 (Applicant): I will address the rest of the questions, but perhaps also a very small factual reminder.
AP2 (Applicant): Mr. Demirtas, from day one, when he was asked questions,
AP2 (Applicant): when he appeared before the trial court, he raised the issue that Judge Nussberger highlighted here, and he said, I'm a member of Parliament, my political speech is engaged in what you're doing.
AP2 (Applicant): I'd like you to investigate this matter.
AP2 (Applicant): This is a prior matter to whatever you do, whatever criminal charges you bring against me.
AP2 (Applicant): Not a single prosecutor, not a single judge, including the Constitutional Court, has actually made that review or asked a question about whether any of these speeches actually fall under Article 83, Paragraph 1 of the Constitution.
AP2 (Applicant): Now, we have, when we read the government's submission on the number of other members of Parliament, such as five AKP and one MHB members, to be very frank with you, we have used our Internet resources.
AP2 (Applicant): We don't have access to everything in any file in Turkey, but we were not able to find a single media story or any piece of news about which AKP and MHB members of Parliament were sentenced, convicted.
AP2 (Applicant): I, to this day, do not have that information, and this is not an information that is publicly available to us.
AP2 (Applicant): We'd like to find out as well, as Judge Felice asked.