TrustHLT/LaCour huggingface dataset:
AP4 (Applicant): This will not only be a very dangerous assault on the right to individual petition, but also an assault on the substantive convention safeguards against arbitration deprivation of liberty.
AP4 (Applicant): Dear President, dear members of the court, the rule of exhaustion of domestic remedies cannot be interpreted as a trap for victims of convention violations.
AP4 (Applicant): The court must denounce the government's strategy of using the exhaustion of domestic remedies as a trap, in particular when the domestic courts, including the Constitutional Court, had an opportunity to offer effective remedies to the applicant on 70 separate occasions.
AP4 (Applicant): Now, Mr. Demir will deliver our observations
AP4 (Applicant): on the unlawful deprivation of liberty of the applicant.
Linos-Alexandre Sicilianos (JudgeP): Mr. Demir.
AP1 (Applicant): Dear President and distinguished members of the court, the detention of Mr. Demirtas has no legal basis.
AP1 (Applicant): A blanket and retroactive constitutional amendment to lift parliamentary immunities on 20 May 2016 has no precedent in the history of Turkish Parliament and under its constitutional law.
AP1 (Applicant): This amendment has not been reviewed by the constitutional court either.
AP1 (Applicant): The unlawfulness of this amendment has also been identified by the Venice Commission and the third party interveners, Article 19 and Human Rights Watch.
AP1 (Applicant): Dear members of the court, on 4 November 2016, the Arbacel judge put forward nine concrete grounds to form the basis of reasonable suspicion to detain applicant on account of two crimes, membership of a terrorist organization and incitement to commit a crime.
AP1 (Applicant): The first six grounds listed in the judgment cite political speech made by Mr. Demirtas.
AP1 (Applicant): Nowhere in the Arbacel judge's decision is there a single concrete, relevant, and sufficient reason as to how this speech advocated hatred, intolerance, and violence.
AP1 (Applicant): Until today, no court explained how speech of Mr. Demirtas were met clear and present danger test.
AP1 (Applicant): The seventh ground is the attendance of Mr. Demirtas at a public and lawful meeting in the Arbacel.
AP1 (Applicant): Attending a lawful meeting of a lawful organization cannot be the ground of reasonable suspicion in any rule of law legal order.
AP1 (Applicant): The eighth reason is a tweet that not tweeted by Mr. Demirtas.
AP1 (Applicant): It is used to allege that Mr. Demirtas incited
AP1 (Applicant): to commit crimes during the violence on the streets on 6 to 8 October 2014.
AP1 (Applicant): The tweet was sent by the Twitter account of the HDP executive council around 10 PM on 6 October 2014.
AP1 (Applicant): It called for peaceful protests in response to assault on the Syrian town of Kobane by the so-called Islamic State and attack on civilian population that qualified crimes against humanity by UN.
AP1 (Applicant): In this period, Mr. Demirtas spoke countless times
AP1 (Applicant): concerning the violence on the streets.
AP1 (Applicant): His conduct was consistently peaceful, warning the public with respect to possible provocation and bringing perpetrators to justice.
AP1 (Applicant): For example, on 9 October 2014, Mr. Demirtas stated, I quote,
AP1 (Applicant): I would like to openly underline that we condemn violence.
AP1 (Applicant): We and our people have full respect for the values, the flag, and the leader of this country.
AP1 (Applicant): Those who commit these ugly acts have nothing to do with us.
AP1 (Applicant): Everyone must know this.
AP1 (Applicant): However, Mr. President, no weight
AP1 (Applicant): was given to his peaceful and responsible conduct detaining him two years later.
AP1 (Applicant): Dear members of the court, the ninth reason is the number of investigations against the applicant.
AP1 (Applicant): A blanket reference to thousands of pages of political speech made by the applicant cannot satisfy safeguards under Article 5.
AP1 (Applicant): It makes what reasonable suspicion to commit crimes absolutely unforeseeable.
AP1 (Applicant): In the 68 decisions of the domestic court that follow, the discussion of reasonable suspicion to commit crimes become more and more abstract.
AP1 (Applicant): Courts did not offer any concrete reasons in addition to those provided in the judgment of 4 November 2016.
AP1 (Applicant): The chamber found, the chamber judgment found an Article 5.3 violation concerning this.
AP1 (Applicant): Mr. President, let me now turn to the review carried out
AP1 (Applicant): by the Constitutional Court and the assessment of the chamber.
AP1 (Applicant): In its judgment of 21 December 2017, the Constitutional Court introduced completely new range of reasons for the reasonable suspicion to detain Mr. Demirtas.
AP1 (Applicant): The chamber also follows suit.
AP1 (Applicant): One of these is a speech made in 2012 saying that those who bring peace deserve to have their status erected.
AP1 (Applicant): This is a political speech that falls clearly under the protection of Article 10.
AP1 (Applicant): It is used as a ground both by Constitutional Court and the chamber to justify detention.
AP1 (Applicant): One other so-called speech relies on the audio surveillance.
AP1 (Applicant): Until today, until this day, no verification of the surveillance took place.
AP1 (Applicant): I must emphasize, not one of these reasons listed above were part of the concrete reasons of initial detention.
AP1 (Applicant): If Constitutional Courts are permitted to introduce new grounds for the reasonable suspicion as basis for detention, they start acting as first instance courts.
AP1 (Applicant): And this is obviously not their role.
AP1 (Applicant): It is also against Article 5.1c of the convention
AP1 (Applicant): as recently underlined by Alparslan Altan versus Turkey.
AP1 (Applicant): Mr. President, the Constitutional Court judgment
AP1 (Applicant): has also huge omissions as to facts.
AP1 (Applicant): The peaceful conduct of Mr. Demirtas in October 2014,
AP1 (Applicant): and indeed in his whole political career, his central role in the peace talks between the government and the PKK from 2013 to 2015 are entirely omitted from the judgment.
AP1 (Applicant): We must underline that the chamber has also omitted these crucial facts.
AP1 (Applicant): Dear President, the list of nine points provided by the Diyarbakir judge for the detention of the applicant do not meet the threshold of information or facts that could satisfy an objective observer of a reasonable suspicion.
AP1 (Applicant): This detention order not only undermined Article 5 safeguards, but also his protections of political speech and political representation.
AP1 (Applicant): I now hand over Ms. Molloh to present Article 18.
Linos-Alexandre Sicilianos (JudgeP): I call Mrs. Molu.
AP3 (Applicant): Dear President, as we have shown, the actions of the Turkish public persecutors in indicting Mr. Demirtas and the actions of the judges detaining and trying him are based solely
AP3 (Applicant): on his political speech, political activities, and political identity.
AP3 (Applicant): Dear members of the court, Mr. Demirtas was not able to sit in Parliament as a representative
AP3 (Applicant): of the Turkish Republic between 4 November 2016 and 24 June 2018.
AP3 (Applicant): For 40% of his term as a member of Parliament, Mr. Demirtas was incarcerated.
AP3 (Applicant): He was not able to vote on any of the major legislative activities, hold the government to account, and was not able to take part in activities in particular during the constitutional change referendum and presidential election campaign.
AP3 (Applicant): His detention intervened simultaneously with his right to political speech and his right to political representation.
AP3 (Applicant): Neither of these violations was reviewed or taken into account by the Turkish Constitutional Court judgment with the exception of one dissenting judge.
AP3 (Applicant): In closing, we turn back to Article 18, without which none of these violations can be understood in their entirety.
AP3 (Applicant): According to the Grand Chamber, the proof of ulterior purpose under Article 18 follows from the coexistence of sufficiently strong, clear, and concordant inference or similar unrebutted presumptions of fact.
AP3 (Applicant): In the context of immediate facts surrounding the case, the Court assesses 1.
AP3 (Applicant): Temporal links, 2.
AP3 (Applicant): Fabrication of evidence, and 3.
AP3 (Applicant): Manifest irregularities as laid out by Mervaş Vili v. Georgia.
AP3 (Applicant): In the context of general state of affairs in the country, the Court asks whether the facts are part of a broader pattern.
AP3 (Applicant): Let us follow the Court's evidentiary standards step by step.
AP3 (Applicant): First, temporal inference.
AP3 (Applicant): In Mamadov v. Azerbaijan, the Court held that there was not any available explanation as
AP3 (Applicant): to the timing of the applicant's detention other than speeches by the government and the subsequent actions of the judicial authorities.
AP3 (Applicant): In the case of Mr. Demirtas, the Chamber did not follow this temporal link standard.
AP3 (Applicant): It found a violation of Article 18 in conjunction with Article 5, Paragraph 3, meaning that the ulterior purpose sometime after his initial detention.
AP3 (Applicant): However, the evidence we put before you clearly indicates to a crystallization of the political purpose having an influence on judicial actions in 2015.
AP3 (Applicant): In the aftermath of the HDP's election success in June, Mr. Demirtas was politically framed
AP3 (Applicant): as a terrorist.
AP3 (Applicant): As we have shown when we started, the temporal link between the speeches of President Erdogan calling for the criminalization of Mr. Demirtas and the exponential increase in indictments
AP3 (Applicant): against him leading up to his detention is clear proof of this.
AP3 (Applicant): Second, fabrication of evidence.
AP3 (Applicant): As we outlined in our written submission, all the evidence in the applicant's file, such as witnesses and the allegation that he took instructions from the PKK, is fabricated.
AP3 (Applicant): And the trial court confirmed that.
AP3 (Applicant): Mr. Demirtas is accused of running a terrorist organization without a single piece of direct
AP3 (Applicant): evidence being provided to prove how he is running such an organization.
AP3 (Applicant): Third, manifest irregularities.
AP3 (Applicant): Turkish judges, including the Turkish Constitutional Court, held that anyone who belongs to the HDP is potentially a terrorist and that meetings between the HDP representatives can be admitted as evidence of reasonable suspicion of terrorist activities.
AP3 (Applicant): We have provided you the list of names and titles of the HDP politicians who have labeled as terrorists by judicial authorities.
AP3 (Applicant): The trial court continues to refuse to verify whether the audio surveillance used to incriminate our applicant is real.
AP3 (Applicant): Dear members of the court, nine of the criminal files prepared between February 2011 to January 2013 were issued by persecutors who later were dismissed and charged with serious crimes such as being a member of a terrorist organization.
AP3 (Applicant): Yet, even the fabricated evidence and illegal phone taps that these dismissed persecutors have put into Mr. Demirtas' file remain to this day part of his trial against him.
AP3 (Applicant): This evidence was also used as reasons to detain Mr. Demirtas.
AP3 (Applicant): The Turkish Constitutional Court has paid no attention to this either.
AP3 (Applicant): Dear President, dear members of the court, let us conclude by manifest judicial irregularities shaped under political influence since the chamber judgment.
AP3 (Applicant): When the chamber decided on 20 November 2018 that the prolonged detention of Mr. Demirtas
AP3 (Applicant): was unlawful, the President of the Republic responded, I quote, it does not bind us.
AP3 (Applicant): We will make our counter move and finish the job.
AP3 (Applicant): He also labeled the European Court of Human Rights as a terrorist lover in his subsequent speech.
AP3 (Applicant): During this speech on 4 December 2018, Mr. Demirtas received the highest possible sentence,
AP3 (Applicant): four years and eight months, for terrorist propaganda relating to a speech he made five years ago in an appeal that was fast-tracked.
AP3 (Applicant): In none of the 88 terrorist propaganda cases you had decided against Turkey, you will see such a hefty imprisonment for terrorist propaganda.
AP3 (Applicant): Mr. President, dear distinguished members of the court, on 2 September 2019, the trial
AP3 (Applicant): court decided to release Mr. Demirtas.
AP3 (Applicant): Any decision to release any person from unlawful detention is a positive decision, of course.
AP3 (Applicant): However, here no objective observer can explain why this has happened now, only 16 days before his grand chamber hearing and after previous requests were refused 68 times.
AP3 (Applicant): The second part of Article 18 evidence concerns whether the violations form part of a broader pattern.
AP3 (Applicant): Dear members of the court, the applicant's case is part of a pattern curbing the rights of members of opposition and human rights defenders in Turkey.
AP3 (Applicant): Dear members, you can only be too aware of the case docket of the European Court of Human Rights as a significant number of pending judicial harassment cases coming from Turkey.
AP3 (Applicant): These come from members of opposition parties, academics, journalists and human rights defenders who oppose the government.
AP3 (Applicant): They too have been indicted or in detention relating to terrorism or other serious charges based on fabricated evidence or solely for their professional or political activities.
AP3 (Applicant): The president continues to target political opposition of all walks and judiciary continues to respond.
AP3 (Applicant): Just this summer, Istanbul mayor elections were renewed by the judiciary following the demands of the president and his party.
AP3 (Applicant): Three democratically elected and priority vetted mayors have been removed from their offices on terrorism charges only a month ago.
AP3 (Applicant): Charging opposition politicians with terrorism crimes has become the currency of the day in Turkey.
AP3 (Applicant): What happened to Mr. Demirtas happened to Ms. Kaftancioğlu who is the head of Istanbul
AP3 (Applicant): of the largest opposition party.
AP3 (Applicant): She won Istanbul and she was punished for terrorist propaganda just two weeks ago.
AP3 (Applicant): So the pattern continues at the huge expense of rule of law, democracy and human rights in Turkey.
AP3 (Applicant): In conclusion, dear president, dear members of the court, the unlawful detention of Mr.
AP3 (Applicant): Demirtas pursued a political purpose that has crystallized in 2015.
AP3 (Applicant): Even if he is released tomorrow, the volume of politically motivated cases pending, in investigations pending against Mr. Demirtas condemned him to live a life where he is under
AP3 (Applicant): constant risk of imprisonment.
AP3 (Applicant): The only way to vitiate this labyrinthine use of the judiciary for political ends is to recognize it and to call it out and to demand that an end is put to it.
AP3 (Applicant): This court was created to do just this.
AP3 (Applicant): Therefore we ask the court to dismiss the preliminary objections of the government and declare that Articles 5, 10, Protocol 1, Article 3 were violated and that Articles 5 and 10 were violated in conjunction with Article 18.
Linos-Alexandre Sicilianos (JudgeP): Thank you.
Linos-Alexandre Sicilianos (JudgeP): I call Mr. Açikgül.
GR1 (Government): it is an honor to appear before you and to do so on behalf of the government of Turkey.
GR1 (Government): The government presentation is divided in two parts.
GR1 (Government): In the first part, I will offer some general comments on the applicants' written and oral submissions.
GR1 (Government): In the second part, Professor Talman will address the admissibility and the merits of the application.
GR1 (Government): Mr. President, having listened to counsel for the applicant,
GR1 (Government): you might have got the impression that this case is all about Turkish politics and not about the convention.
GR1 (Government): The applicants tried to portray this case as the ruling AK Party using the prosecutorial and judicial authorities of the state to stifle the political activities of the applicant and the HDP.
GR1 (Government): I would like to remind the court that the first investigation file concerning the applicant was submitted to Parliament in November 2007.
GR1 (Government): In fact, 45 investigation files had been submitted to Parliament before the end of the solution process in July 2015.
GR1 (Government): 12 of them is subject matter of this application.
GR1 (Government): Thus, there is no connection between the criminal investigation of the applicant and the constitutional referendum or the presidential elections.
GR1 (Government): The lifting of immunity in May 2016 was by no means used by the AK Party against the applicant or the HDP.
GR1 (Government): In fact, the lifting of immunity was approved not just by the members of the AK Party, but had cross-party support.
GR1 (Government): Indeed, the HDP members of the Parliament themselves had asked for the lifting of their immunities in July 2015.
GR1 (Government): At the time when there were already 45 investigation reports against the applicant before Parliament, but the applicant did not mention about it.
GR1 (Government): The lifting of immunity was also not specifically aimed at 55 HDP members of Parliament, but affected 154 MPs, including 29 members of the ruling AK Party and 59 members of the main opposition party, CHP.
GR1 (Government): The chairs of both CHP and National Movement Party were among them as well.
GR1 (Government): The lifting of immunity did not just lead to the criminal conviction of HDP members, but also to the criminal conviction of 15 CHP members and five members of the ruling AK Party.
GR1 (Government): The number of investigation files with regard to the HDP also does not say anything about the judicial process.
GR1 (Government): The 518 investigation files with regard to HDP members resulted in 322 criminal cases, of which 180 cases were closed either because the accused was acquitted or because there was no ground to impose a sentence.
GR1 (Government): The figures with regard to applicants are also revealing.
GR1 (Government): Of the 17 criminal cases brought against him, he was acquitted in four cases, and in five cases, the criminal proceedings were suspended.
GR1 (Government): To date, there has been only one criminal conviction, and four cases are still pending before the court, including the case subject matter of this application.
GR1 (Government): Mr. President, the applicants also
GR1 (Government): call into question the independence and impartiality of the Turkish judiciary.
GR1 (Government): The government would like to bring to court's attention, for example, the case of two other HDP MPs who were investigated for some of the same offenses as the applicant.
GR1 (Government): In these two cases, the Constitutional Court ruled that the pretrial detention was unlawful for lack of strong suspicions.
GR1 (Government): In addition, in March of this year, the Constitutional Court found that the applicant's freedom of expression had been infringed on the ground that while he was in pretrial detention, he could not receive periodicals and awarded him non-pecuniary damages.
GR1 (Government): it is difficult for any party to argue a case where the other side misrepresents and distorts the facts.
GR1 (Government): The government does not accept any of the factual allegations made by the applicant in these proceedings.
GR1 (Government): There are too many issues to be raised in the short time available.
GR1 (Government): Let me just highlight two examples.
GR1 (Government): First, the applicant misrepresented the figures with regard to the Constitutional Court case law.
GR1 (Government): Initially, there were only 2,665 cases in 2016 and 7,191 cases in 2017.
GR1 (Government): Actually, these figures represent the number of the cases from these two years that were still open at the end of 2018.
GR1 (Government): In fact, in 2016, there were more than 101,000 cases before the Constitutional Court.
GR1 (Government): Similarly, in 2017, the overall case load was over 126,000.
GR1 (Government): Second, the applicant tries to create the impression of having condemned violence.
GR1 (Government): Of course, the applicant has paid lip service to nonviolence, while at the same time, he's calling for resistance, revolt, and protest by all means possible.
GR1 (Government): If I just may read out one of the applicant's interviews quoted by the Constitutional Court, of course, I don't mean violence by that.
GR1 (Government): We did not encourage, promote, or organize acts of violence, such as the use of weapons, incinerations, looting.
GR1 (Government): Yet, we made a call to transform the people's anger into street protest by all means possible.
GR1 (Government): the applicant's euphemism, all means possible, resulted in 45 people's death and 769 injured.
GR1 (Government): Mr. President, let me briefly address the question
GR1 (Government): why the applicant was kept in detention for two years and 10 months before his spirit trial detention was lifted on 2nd September.
GR1 (Government): During this period, 23 hearings were held in the criminal trial.
GR1 (Government): From the outset, the applicant tried to obstruct and delay the proceedings.
GR1 (Government): In particular, he refused to attend two hearings.
GR1 (Government): At six hearings, the applicant refused to make his defense submissions.
GR1 (Government): Then, at the hearing on 2nd September, none of the applicant's lawyers, more than 100, attended the hearing.
GR1 (Government): The court presumed that his defense has been completed.
GR1 (Government): Upon completion of his defense, the court no longer saw any reason for the applicant's spirit trial detention and ordered his release.
GR1 (Government): Accordingly, there is no need for the court to order the release of applicants from spirit trial detention under Article 46 of the Convention.
GR1 (Government): Mr. President, this ends my presentation.
GR1 (Government): May I now invite you to give the floor to Professor Talman.
GR1 (Government): Thanks for your attention.
GR1 (Government): I'll see you next time.
Linos-Alexandre Sicilianos (JudgeP): Thank you. I call Mr. Talmon.
GR2 (Government): Mr. President, members of the court,
GR2 (Government): it is always a privilege and honor to appear before you.
GR2 (Government): Mr. President, the government submits
GR2 (Government): that five of the applicants' six complaints are inadmissible because they are currently investigated by the Human Rights Committee of the Inter-Parliamentary Union the IPU Human Rights Committee.
GR2 (Government): Article 35, paragraph 2B of the convention provides that the court shall not deal with an application that is substantially the same as a matter that has already been submitted to another procedure of international investigation or settlement.
GR2 (Government): The government submits that the IPU Human Rights Committee qualifies as such a procedure.
GR2 (Government): It provides for quasi-judicial proceedings similar to those set up by the convention.
GR2 (Government): The committee is an effective procedure, and according to the IPU Human Rights Committee, according to the IPU itself, I quote, has a solid track record of providing concrete help for those who suffer abuse.
GR2 (Government): The present application is substantially the same as the complaint submitted to the IPU Human Rights Committee.
GR2 (Government): Only the length of the proceedings before the constitutional court, the Article 5, paragraph 4 complaint, is not currently before the IPU Human Rights Committee.
GR2 (Government): the applicant objects to the status of the IPU Human Rights Committee as another procedure on six grounds.