TrustHLT/LaCour huggingface dataset:
AP2 (Applicant): Now, one question is that we have serious doubts, and we would very much appreciate the government to answer whether any of the AKP and MHB members were sentenced, and if they were sentenced for things that engaged in freedom of expression, or whether they were charged with terrorist propaganda, or being a membership of a terrorist organization, or by assaulting the laws of assembly, or by assaulting the law on insulting the President, or by assaulting the law on insulting the Prime Minister.
AP2 (Applicant): These are the charges that have been brought against Mr. Demirtas,
AP2 (Applicant): and these are also the charges that have been brought against every single HDP member of Parliament.
AP2 (Applicant): So that comparison would be very helpful.
AP2 (Applicant): We do know that two members of the CHB, the first largest opposition party in Turkey, have also been charged, and they have been detained, and that information is publicly available on the Internet and in other public resources.
AP2 (Applicant): If a member of Parliament, Judge Felice, is detained, they cannot propose law, they cannot vote, they cannot participate in parliamentary activities in a meaningful way.
AP2 (Applicant): There is only one exception that we highlighted in our submission.
AP2 (Applicant): Mr. Demirtas wanted to ask a question to Parliament,
AP2 (Applicant): and this has created quite a lot of uncertainty because he had to hand-write a question.
AP2 (Applicant): There was a matter of whether this could be accepted.
AP2 (Applicant): His lawyers took a piece of paper from him.
AP2 (Applicant): They were trying to sort of take it to the Parliament and whatnot.
AP2 (Applicant): So there is one instance that he was writing a question to Parliament to be answered.
AP2 (Applicant): At the last time that we checked, that one question, so this is not proposing law or anything, it's just asking a question, that was never answered by the Parliament.
AP2 (Applicant): Now, voting by proxy, whether there is any European consensus on voting by proxy by members of Parliament who are detained?
AP2 (Applicant): I must say it's a difficult question.
AP2 (Applicant): I think it's a very unusual one to ask.
AP2 (Applicant): I don't know if Council of Europe member countries kind of think about when we detain our members of Parliament, should they be voting for proxy?
AP2 (Applicant): It's a hard question.
AP2 (Applicant): I really don't know the answer to that, and I don't know if people would ask such a question when engaging with members of Parliament.
AP2 (Applicant): So my answer to Judge Yougstel is that I do not know the answer to that.
AP2 (Applicant): But what we do know is that obviously detention is an extremely harsh measure, and when this measure is engaged, obviously there are alternatives.
AP2 (Applicant): There's the house arrests, and there are lots of other alternatives that I'm sure are very clearly laid out in every single European legislation, what is an alternative to detention.
AP2 (Applicant): Now, the final question or the final set of questions I will come back to, one has to do with this very unusual latest development about the conviction of Mr Demirtas from a separate trial by a panel of judges in Istanbul, and that happened recently.
AP2 (Applicant): Now, after this conviction has been fast-tracked and finalised, as we have shown, obviously the conviction time kicks in under Turkish law, so the clock starts ticking towards this conviction.
AP2 (Applicant): But under Turkish law, it is not possible to be...
AP2 (Applicant): Or it is absolutely possible, let's put it the other way, to be convicted and detained at the same time, because you're convicted for one crime, but you're detained for another.
AP2 (Applicant): So for quite some time, Mr Demirtas was detained from one crime and he was convicted for another one.
AP2 (Applicant): He was able to see all of his lawyers, his family members, as a detainee, even though his clock was ticking as a convicted person.
AP2 (Applicant): Now, Mr Demirtas's detention ended on 2 September 2019.
AP2 (Applicant): This is by the decision of the trial court to actually end this detention.
AP2 (Applicant): So since 2000 September 2019, Mr Demirtas is not detained.
AP2 (Applicant): His clock is ticking towards his conviction.
AP2 (Applicant): But Mr Demirtas was detained until 2 September 2019, and he was a detainee until that time.
AP2 (Applicant): Judge Harantunyan has refused to appear before a judge.
AP2 (Applicant): Our applicant hasn't refused to appear before a judge.
AP2 (Applicant): Before he was detained, he made speeches in Parliament.
AP2 (Applicant): I really like to emphasise this one more time, because the speeches are publicly available in and outside of Parliament.
AP2 (Applicant): In this very heated political debate in Turkey about the lifting of immunities, he said, we will fight this.
AP2 (Applicant): And when he was making this speech, this is political speech, and he said, well, we will fight this.
AP2 (Applicant): If people would like to take me by force, they can take me by force to a prosecutor.
AP2 (Applicant): I will not go willfully.
AP2 (Applicant): Now, this speech, as you see, has been used over and over again in the reasonings of the Turkish Constitutional Court as well.
AP2 (Applicant): This is political speech, dear members of the court.
AP2 (Applicant): Under Turkish law, if the prosecutor invites you, you can say, I am not willfully wanting to come.
AP2 (Applicant): The next stage is that you are forcefully brought before a prosecutor.
AP2 (Applicant): There is nothing interesting or important about the fact that you say, I do not wish to go to in front of a prosecutor.
AP2 (Applicant): The prosecutor has all the powers to actually bring you before him or herself.
AP2 (Applicant): This is, I think, a very clear explanation of this.
AP2 (Applicant): Finally, on the solution process, we highlighted in our submission the very significant omission also in the chamber judgment and in the Turkish constitutional judgment about this very important recent historical context.
AP2 (Applicant): There is a conflict in Turkey that has been going on for a very long time.
AP2 (Applicant): It has harmed, caused huge amounts of deaths, a lot of misery in the country.
AP2 (Applicant): This is absolutely correct.
AP2 (Applicant): But there was one time, a very recent part of our history, a couple of years, where there were a solution process, where there was actually peace talks.
AP2 (Applicant): And the collapse of this, of course, will be something that has to be discussed by historians and by researchers about how it ended.
AP2 (Applicant): But we have, I think, shown you that the way that it has ended and the way a legitimate democratic political party and its leader has been turned into a terrorist is a very clear temporal inference there.
AP2 (Applicant): I thank you.
Linos-Alexandre Sicilianos (JudgeP): Thank you. I call the government.
Linos-Alexandre Sicilianos (JudgeP): Mr. Talmon.
GR2 (Government): Mr. President, members of the court, as Council opposite has already said, these are some
GR2 (Government): very difficult questions, difficult questions to answer in the short time available.
GR2 (Government): We will try to do our best to respond to your questions.
GR2 (Government): The government can confirm the numbers set out in paragraph 90 of our response that there have been five AK Party members being sentenced after the lifting of immunity, one MHP member has been sentenced, and 15 members of the main opposition party, CHP.
GR2 (Government): With regard to the question concerning Article 10 and whether it needs addressing, in line with the general reasoning of this court, when the court finds that there is reasonable suspicion of someone having committed a crime on the basis of statements made, this court refrains from also examining Article 10.
GR2 (Government): The government would subscribe to this legal view that there is no need to, and actually that it could lead to contradictory findings if, or it would actually not be possible because it could only find a violation of Article 2 by then denying your first finding that there has been a reasonable suspicion of a crime.
GR2 (Government): The two basically exclude each other.
GR2 (Government): If you are assessing a statement and on the one hand you say this statement actually establishes suspicion of a crime, then at the same time to rule that that very statement that basically founded the basis for reasonable suspicion of a crime is protected by freedom of speech, that to the government seems contradictory.
GR2 (Government): And that was also, of course, the line of reasoning the chamber was following because the chamber found that there was reasonable suspicion of the applicant having committed a crime and on that basis then found no reason to rule on Article 10.
GR2 (Government): With regard to the third question, whether the applicant could have proposed a law, we respectfully disagree with what the applicant has just said.
GR2 (Government): A member of parliament, even if detained, under the Turkish constitution can exercise any right that does not require his physical presence in the chamber.
GR2 (Government): So for example, a legislative proposal does not require physical presence in the chamber.
GR2 (Government): Addressing questions to the government, written questions to the government, does not require physical presence.
GR2 (Government): Calling for an investigation or instituting an inquiry also does not require physical presence and therefore could even be instituted by a member of parliament who is in pretrial detention.
GR2 (Government): With regard to the one question asked by the parliament, by the applicant, we were just told that this question was never answered.
GR2 (Government): And this is correct.
GR2 (Government): The question was not answered because the term of office of parliament during which this question was asked shortly thereafter came to an end.
GR2 (Government): And with the end of the session of parliament, also the requirement to answer parliamentary questions under Turkish law comes to an end.
GR2 (Government): So whatever parliamentary business cannot be conducted within basically one period of parliament will not be conducted in the next parliament.
GR2 (Government): This is usual practice probably in most parliaments in Europe.
GR2 (Government): With regard to just Yüksel's question, the government agrees with the applicant that a person can be detained as a convict and at the same time he can be detained in pretrial detention.
GR2 (Government): So we can have legally two legal statuses of that person.
GR2 (Government): We would like to add that the parallel status of a convict and a person in pretrial detention actually did not start in December of 2018 but started already on the 7th of September 2018 when the decision was rendered.
GR2 (Government): And this first instance decision was then later on confirmed on appeal.
GR2 (Government): But of course then the criminal conviction is served from the first judgment.
GR2 (Government): So what we have is a situation from the 7th of September 2018 to the 2nd of September 2019 where the applicant legally held two statuses at the same time, that of a criminal convict and as a person in pretrial detention.
GR2 (Government): I'm just also reminded that it is not the 11th of December but the 7th of December.
GR2 (Government): Now if I may, this opportunity also to respond to the allegation that was once again made here in reply to your questions that apparently the applicant's case was fast-tracked, so to speak, to get him really convicted before the European Court of Human Rights could actually rule, the chamber could actually rule.
GR2 (Government): We have submitted as additional documents to the court statistics of how long an appeals process takes.
GR2 (Government): And you can see from that statistics that actually there was no fast-tracking but actually in most cases there was basically a similar time spent on the appeal and actually in 17 cases in the statistics the appeal was heard even earlier than in the case of the applicant.
GR2 (Government): So there is no question of him being singled out and his case being fast-tracked to preempt whatever the chamber of this court would have said.
GR2 (Government): Let me now turn to the question concerning parliamentary non-liability and parliamentary immunity.
GR2 (Government): The government would agree that of course this provision, Article 83, Paragraph 1, cannot be understood literally.
GR2 (Government): You do not have to use the same words inside the chamber and outside the chamber.
GR2 (Government): But of course what is important in this context is the content of your statement and the government would respectfully invite the court to actually have a look at the statements and to see whether these are parliamentary statements.
GR2 (Government): We have had no evidence in front of this court or in front of any Turkish court that the applicant has pleaded that some of his statements that form part of the criminal proceedings would actually fall under Article 83, Paragraph 1.
GR2 (Government): This has not been raised in any proceedings before the Turkish court.
GR2 (Government): It has now been raised today but of course there is no evidence for you to decide this unless you want to investigate this as a court of first instance and compare speeches in parliament with the speeches that form part of the criminal proceedings.
GR2 (Government): As I said, I think it is of particular importance that this argument was never raised before the Turkish court and it was not raised before the Turkish constitutional court.
GR2 (Government): We would also agree that if you make a statement in parliament you can make a statement of the same content on social media or in a tweet.
GR2 (Government): Again, it is not the medium, it is the content which you would have to compare and see whether a similar statement, an identical statement was made in parliament before it was made outside parliament and then formed part of the criminal proceedings.
GR2 (Government): The government would submit in this context that the speeches forming part of the criminal proceedings did not relate to the parliamentary work of the applicant and were not made with that content in parliament.
GR2 (Government): Let me now move to the question of foreseeability and the procedural guarantees included.
GR2 (Government): This is a question that was raised several times also by Judge Aiki and by Judge Potocki and I hope I answer all your questions in one go.
GR2 (Government): The government would like to submit that for a very long time, and it was not possible for us to establish for exactly how long, there were no individual decisions taken by the Turkish parliament to lift immunity of individual members.
GR2 (Government): The idea was that in Turkish politics and in Turkish history, the lifting of immunity had very often been abused against parliamentarians.
GR2 (Government): For that reason, for quite a number of years, the general rule followed by parliament was not to lift any immunity at all.
GR2 (Government): So there were no individual decisions.
GR2 (Government): So the default rule is there is no immunity.
GR2 (Government): Now parliament then decided in light of the number of investigation files, not just against the ADP members, but also against other members of parliament, we have provided you with the statistics, how many investigation files for each party.
GR2 (Government): In light of the number of these investigation files, parliament then decided to lift in one go the immunity of all parliamentarians irrespective of party affiliation.
GR2 (Government): And if we talk about procedural guarantees, as a lawyer I can see a difference between an individual decision and a general decision, but it is the will of parliament to lift the immunity.
GR2 (Government): The law lifting immunity had under the Turkish constitution to be discussed twice in parliament.
GR2 (Government): There were two readings of this bill.
GR2 (Government): And as we showed, there was cross party support for the lifting of immunity.
GR2 (Government): So this was not an AK Party bill.
GR2 (Government): So actually the AK Party did not have the number of members in parliament with which this law was approved.
GR2 (Government): So this law was approved with the positive vote of opposition party members.
GR2 (Government): In this context, I would also like to remind the court in terms of foreseeability and procedural guarantees.
GR2 (Government): And on the 29th of July 2015, the then 80 HDP members of parliament actually petitioned parliament to lift their immunity in one decision.
GR2 (Government): Again without any individual consideration, but it was to be a general decision that the party members basically petitioned that lift our immunities in light of investigation files that had been filed.
GR2 (Government): And in this context, it is probably also again important to remind the court that before any breakdown of the solution process, before any of the speeches from the Turkish president that have been cited to you, before all this, 45 investigation files had been filed with regard to the applicant.
GR2 (Government): Before any political dispute between the various players in Turkey, 45 files had already been submitted to parliament for the lifting of immunity.
GR2 (Government): Let me turn to the question of the membership of a terrorist organization.
GR2 (Government): There are in Turkish law certain criteria by which the courts determine whether someone is a member of a terrorist organization.
GR2 (Government): In fact, there are four criteria here.
GR2 (Government): What is required is several acts undertaken on the orders or instructions of the leadership of a terrorist organization.
GR2 (Government): The second requirement is the intensity of the act, the importance of the act.
GR2 (Government): There's a certain threshold requirement.
GR2 (Government): Probably buying lunch for someone would not fall under that category.
GR2 (Government): Then we need continuous acts.
GR2 (Government): So one single act would not be enough.
GR2 (Government): So it's a continuity here that has to be shown.
GR2 (Government): And of course, there is the subjective element.
GR2 (Government): There must be will or intention on the part of the person concerned.
GR2 (Government): In this context, Judge Lutzberger asked also about the similarity of the tweets, the tweets that were sent from the HDP executive council account and the tweet by Mr. Karayalan, a
GR2 (Government): PKK leader.
GR2 (Government): Now, council opposite have claimed here in this chamber that this Karayalan tweet is a fake.
GR2 (Government): The government submits that this is not the case.
GR2 (Government): It has not been established by the trial courts that this is fake.
GR2 (Government): So there is no evidence that this tweet is fake.
Linos-Alexandre Sicilianos (JudgeP): You have exceeded your time, but if you would like to conclude, you have.
GR2 (Government): If you permit me to conclude, considering that our council opposite basically also had a little bit more time in the first round, perhaps.
GR2 (Government): And I hope it is to the benefit of members of the court that we answer the questions.
Linos-Alexandre Sicilianos (JudgeP): I have given you more than the applicants.
GR2 (Government): I'll try to be brief.
GR2 (Government): I just want to basically mention with regard to the procedural guarantees in the case of lifting of immunity.
GR2 (Government): Of course, we had a procedural guarantee that immunity is only lifted with regard to those files that had been with Parliament or with the other institutions mentioned in the law at the moment when Parliament decided.
GR2 (Government): So Parliament was aware of the files on which it decided to lift immunity.
GR2 (Government): With regard to procedural guarantees, I may, of course, also refer you to the ordinary procedural guarantees in the normal criminal process.
GR2 (Government): There was also one allegation made by counsel opposite that in the investigation files, it is mentioned that the applicant is accused of membership of a terrorist organization, but he is now being tried for running a terrorist organization.
GR2 (Government): What is important under Turkish law is the factual allegation.
GR2 (Government): The prosecutors are bound by the factual allegations they put to Parliament when they petition Parliament to lift immunity.
GR2 (Government): So it's the factual allegations and the evidence put to Parliament that has to form the basis of future proceedings.
GR2 (Government): The prosecutors may, however, change the legal assessment of the facts submitted to Parliament.
GR2 (Government): So especially if several files are then joined, on the basis of the joined facts, a different legal assessment may be appropriate.
GR2 (Government): This can explain the difference between membership and running of a terrorist organization.
GR2 (Government): I think this is all the government would like to submit.
Linos-Alexandre Sicilianos (JudgeP): I now invite the judges who have put questions to us for further clarification if they so wish, Vice President Nußberger.
Angelika Nußberger (Judge): Yes, thank you very much.
Angelika Nußberger (Judge): Indeed, I would like to have some clarification, because I understood now on my question about Article 83, Paragraph 1, that the applicants argue that it was raised both before the courts and before the Constitutional Court, and the government says it was not raised.
Angelika Nußberger (Judge): So is there any evidence you could resort to explain that to us?
Angelika Nußberger (Judge): My second question is, did I understand the government representative correctly that you said before the change of 83, Paragraph 2, there was a practice that individual withdrawal of immunity procedure was not used?
Angelika Nußberger (Judge): So if there was such a practice, could parliamentarians rely on such a practice?
Angelika Nußberger (Judge): And the third question concerns, once again, this procedural change of the procedural position in this withdrawal procedure.
Angelika Nußberger (Judge): I want to understand, did the individual have still a right to protest against it?
Angelika Nußberger (Judge): So did he have a right to protest against the withdrawal if being a member of the collective assessment, just in light of our Karácsony judgment?
Angelika Nußberger (Judge): That's what I want to mention.
Linos-Alexandre Sicilianos (JudgeP): Judge Eicke, clarification question.
Tim Eicke (Judge): Yes, just a clarification question.
Tim Eicke (Judge): Council for the government indicated the, I think it was a four stage test under Turkish law for assessing membership of a terrorist organization.
Tim Eicke (Judge): And the first one of that understood was several acts undertaken under the instruction of the leadership of a terrorist organization.
Tim Eicke (Judge): What you didn't tell us, and which would be helpful, I think, certainly to me, to understand better, is how does one know that the leadership of the organization under whose instructions one acts is, for criminal purposes in Turkey, or generally a terrorist organization?
Linos-Alexandre Sicilianos (JudgeP): I call the government.
GR2 (Government): Of course, with regards to whether something has been not raised, it is very difficult for the government to produce any evidence.
GR2 (Government): I think this would be on the part of the applicant to produce that evidence.
GR2 (Government): With regards to the question of whether individual members of parliament could rely on that practice, I assume that with regard to every decision on whether immunity is lifted or not, the individual has no guarantee that parliament does not decide to lift his immunity.
GR2 (Government): So that over a couple of years' time, immunity has not been lifted does not automatically establish a right that immunity would no longer be lifted.
GR2 (Government): So I think, as I said before, immunity is a temporary bar.