10.  The applicant was born in 1973. He is currently detained in Edirne.
11.  At the material time, the applicant was one of the co-chairs of the Peoples’ Democratic Party (HDP), a left-wing pro-Kurdish political party. From 2007 onwards he was a member of the Turkish Grand National Assembly (“the National Assembly”). Following the parliamentary elections on 1 November 2015, he was re-elected as a member of the National Assembly for the HDP, and his term of office ended at the time of the parliamentary elections on 24 June 2018.
12.  In the presidential election of 10 August 2014 the applicant received 9.76% of the vote. He also stood in the presidential election on 24 June 2018 and received 8.32% of the vote.
13.  In September and October 2014, members of the illegal armed organisation Daesh (Islamic State of Iraq and the Levant) launched an offensive on the Syrian town of Kobani (Ayn al-Arab in Arabic), some 15 km from the Turkish border town of Suruç. Armed clashes took place between Daesh forces and the People’s Protection Units (YPG), an organisation founded in Syria and regarded as a terrorist organisation by Turkey on account of its links with the PKK (Workers’ Party of Kurdistan, an illegal armed organisation).
14.  From 2 October 2014 onwards, a large number of demonstrations were held in Turkey and several non-governmental organisations at local and international level published statements calling for international solidarity with Kobani against the siege by Daesh.
15.  On 5 October 2014 a tweet was published from a Twitter account allegedly controlled by one of the PKK leaders, reading as follows:
“We call upon all the young people, women and everyone from 7 to 70 to stand up for Kobani, to protect our honour and dignity and to occupy the metropolitan areas.” (“Gençleri kadınları 7’den 70’e herkesi Kobane’ye sahip çıkmaya onurumuzu namusumuzu korumaya metropolleri işgal etmeye çağırıyoruz.”)
16.  On 6 October 2014 the following three tweets were published from the official HDP Twitter account, @HDPgenelmerkezi:
– “Urgent call to our people! Urgent call to our people from the HDP central executive board, currently in session! The situation in Kobani is extremely dangerous. We urge our people to take to the streets and to support those protesting in the streets against Daesh attacks and the AKP [Justice and Development Party] government’s embargo over Kobani” (“Halklarımıza acil çağrı! Şuanda toplantı halinde olan HDP MYK’dan halklarımıza acil çağrı! Kobané’de duruş son derece kritiktir. IŞİD saldırılarını ve AKP iktidarının Kobané’ye ambargo tutumunu protesto etmek üzere halklarımızı sokağa çıkmaya ve sokağa çıkmış olanlara destek vermeye çağırıyoruz”);
– “We call upon all our people, from 7 to 70, to [go out into] the streets, to [occupy] the streets and to take action against the attempted massacre in Kobani” (“Kobané’de yaşanan katliam girişimine karşı 7 den 70 e bütün halklarımızı sokağa, alan tutmaya ve harekete geçmeye çağırıyoruz”);
– “From now on, everywhere is Kobani. We call for permanent resistance until the end of the siege and brutal aggression in Kobani” (“Bundan böyle her yer Kobane’dir. Kobane’deki kuşatma ve vahşi saldırganlık son bulana kadar süresiz direnişe çağırıyoruz”).
17.  On the same day, the following statement from an organisation known as the KCK (Koma Civakên Kurdistan – “Kurdistan Communities Union”, identified as the “urban wing” of the PKK by the Court of Cassation, was published on the website www.firatnews.com. The statement read as follows:
“The wave of revolution that started in Kobani must spread throughout Kurdistan, and on that basis, we call for an uprising by the Kurdish youth ... All those among our people who can make it to Suruç must go there immediately without wasting a second, and every inch of Kurdistan must rise up for Kobani ... We call upon all our people, from 7 to 70, to make life unbearable for Daesh and their collaborators the AKP wherever they are, and to take a stand against these gangs [responsible for] massacres by fostering rebellion [Serhildan in Kurdish] up to the highest level.” (“Kobani ile başlayan devrim dalgası tüm Kürdistan’a yayılmalı ve Bu temelde Kürt gençliğinin ayaklanması çağrısında bulunuyoruz... Bütün halkımız Suruç’a gidebilecekler hemen bir saniye zaman kaybetmeden gitmeli ve Kürdistan’ın her karış toprağı Kobanê için ayağa kalkmalıdır... Tüm halkımızı yediden yetmişe bulunduğu her yerde yaşamı IŞİD ve işbirlikçisi AKP’ye dar etmeye ve serhıldanı en üst düzeyde geliştirerek bu katliamcı çetelere karşı durmaya çağırıyoruz.”)
18.  On 7 October 2014 the following statement by the KCK Executive Council was published on the same website:
“Our people must carry on the resistance they have started against this terrible and insidious massacre, by spreading it everywhere and at all times. Our people in the North [in the region of south-eastern Turkey] must give the Daesh gangs and their supporters no chance of survival. All the streets must be turned into the streets of Kobani and the strength and organisation of this historic and unique resistance must be developed further. From now on, millions of people must take to the streets and the border must turn into a flood of people. All Kurds and all honourable people, friends and groups who are sympathetic [to our cause] must take action. Now is the time to develop and amplify the act of resistance. On this basis, we call upon our people, all groups that are sympathetic [to our cause] and our friends to embrace and amplify the Kobani resistance and we call upon all young people, particularly the Kurdish youth, to join the ranks of freedom in Kobani and to intensify the resistance.” (“Halkımız bu çirkin ve sinsi katliam karşısında başlattığı mücadeleyi her yere, her zamana taşıyarak süreklileştirmelidir. Kuzey halkımız İŞİD çetelerine, uzantılarına ve destekçilerine hiçbir yerde yaşam şansı tanımamalıdır. Tüm sokaklar Kobani sokaklarına dönüştürülmeli, tarihin bu eşsiz direnişine denk bir direniş gücü ve örgütlülüğü geliştirilmelidir. Bu saatten itibaren milyonlar sokaklara akmalı, sınır insan seline dönüşmelidir. Her Kürt ve onurlu her insan, dostlar, duyarlı kesimler bu andan itibaren eyleme geçmelidir. An direniş eylemini geliştirme ve büyütme anıdır. Bu temelde tüm halkımızı, duyarlı kesimleri, dostlarımızı Kobani direnişini sahiplenerek büyümeye, başta Kürt gençleri olmak üzere tüm gençleri Kobani de özgürlük saflarına katılarak direnişi yükseltmeye çağırıyoruz.”)
19.  From 6 October 2014 onwards, the demonstrations became violent. Clashes took place between different groups, and the security forces intervened forcibly. On unspecified dates, the local governors of a number of towns imposed curfews.
20.  In two statements on 7 and 9 October 2014 the applicant emphasised that he was opposed to the use of violence during the demonstrations. He stated that his political party was prepared to cooperate with the government but that the latter first needed to identify those who had provoked the violence.
21.  According to the Constitutional Court’s judgment of 21 December 2017 (no. 2016/25189) on the applicant’s subsequent individual application, fifty people died during the violence on 6 and 8 October 2014 and 772 were injured, including 331 members of the security forces. 1,881 vehicles and 2,558 buildings, including hospitals and schools, suffered damage. In the course of the subsequent criminal investigations conducted by the appropriate prosecuting authorities, 4,291 people were arrested and 1,105 were placed in pre-trial detention (see paragraph 30 of the Constitutional Court’s judgment).
22.  On 9 October 2014 the applicant gave a speech at the HDP offices in Diyarbakır. The relevant parts of the speech read as follows:
“We issued the calls in question [the tweets published from the HDP Twitter account] because we had found out that Daesh had reached the border at Mürşitpınar. People went out into the streets and there was no violence anywhere. We did not tell anyone to resort to violence. We appealed for political struggle. What aggravated the violence was not the call issued by the HDP, or the demonstrations by the people. It is the government’s task to find those who provoked [the demonstrations]. There should be no acts of violence. There is no need for intervention in demonstrations [held] in support of Kobani ...” (“DAEŞ örgütünün Mürşitpınar sınır kapısına dayandığını öğrendiğimiz için bahsi geçen çağrıları yaptık, insanlar sokağa çıktı hiçbir yerde şiddet kullanılmadı. Şiddet kullanılsın demedik. Siyasi mücadele amaçlı bir çağrı yaptık. Şiddeti büyüten HDP’nin çağrısı değil, halkın gösterileri değil. Tahrik edenleri bulmak hükümetin görevidir. Şiddet eylemleri olmamalı. Kobane’yi sahiplenme eylemlerine müdahale edilmemeli ...”)
23.  In an interview published on 13 October 2014 in the daily newspaper Evrensel, the applicant was quoted as follows:
“It is directly linked to Kobani. It is not for us to calm down the anger. We do not have so much influence over the people, nor is it necessary. We believe that practical measures that the government could take to drive Daesh out of Kobani will end this anger. Of course, I am not talking about acts of violence. We have not encouraged acts of violence like the use of weapons, arson, destruction [and] dispossession. We have not incited or organised [such acts]. But we have called for the people’s anger to turn into an ongoing protest, day and night, everywhere, on the squares, in homes, in the streets, in cars. We still stand behind that call.” (“Doğrudan Kobaniyle bağlantılıdır. Öfkeyi yatıştırabilecek olan biz değiliz. Bizim halk üzerinde ne böyle bir gücümüz vardır ne de buna gerek vardır. Yani halk IŞİD’e karşı durmasın sempati duysun diye uğraşacak değiliz. Biz hükümetin atacağı pratik adımların IŞİD’in Kobani’den püskürtülmesiyle sonuçlanmasının bu öfkeyi durduracağını düşünüyoruz. Elbette ki bundan kastettiğim şiddet olayları değil. Biz silah kullanma, yakıp yıkma, yapmalama gibi şiddet eylemlerini teşvik etmedik, tahrik etmedik, örgütlemedik ama halkın öfkesinin alanlarda, meydanlarda, gece gündüz evinde, sokakta, arabasında elindeki bütün imkanlarla bir protestoya dönüşmesinin çağrısını yaptık. O çağrının da halen arkasındayız.”)
24.  During late 2012 and January 2013, a peace process known as the “solution process” had been initiated with a view to finding a lasting, peaceful solution to the “Kurdish question”. A series of reforms aimed at improving human rights protection were implemented. A delegation of members of parliament, including the applicant, went to İmralı island, where Abdullah Öcalan – the leader of the PKK, who in 2013 called for an end to the armed struggle within his organisation – is imprisoned. On 28 February 2015 the delegation, together with the then Deputy Prime Minister, presented the “Dolmabahçe consensus”, a ten-point reconciliation declaration. The then Prime Minister, Mr Ahmet Davutoğlu, stated that the consensus meant that significant steps were being taken towards halting terrorist activities in Turkey. However, shortly after the announcement, the President of Turkey, Mr Recep Tayyip Erdoğan, said that it was out of the question that the government would reach an agreement with a terrorist organisation.
25.  On 7 June 2015 parliamentary elections were held. The HDP achieved 13% of the vote and passed the threshold for representation in the National Assembly. The AKP lost its majority in Parliament for the first time since 2002.
26.  On 20 July 2015 a terrorist attack apparently carried out by Daesh took place in Suruç, leaving thirty-four people dead and more than 100 injured.
27.  On 22 July 2015, in another terrorist attack, two police officers were killed in their homes in Ceylanpınar. The murders, allegedly committed by members of the PKK, resulted de facto in the end of the “solution process”.
28.  The day after that attack, the PKK’s leaders urged the people to arm themselves and to build underground systems and tunnels that could be used during armed clashes. They also called for the proclamation of a political system of self-governance. In addition, they announced that all civil servants in the region would now be considered accomplices of the AKP and as a result would risk being targeted.
29.  On 28 July 2015 the President of Turkey issued a press statement, the relevant parts of which read:
“I do not approve of dissolving political parties. But I say that the deputies of that party [the HDP] must pay the price. Personally and individually.” (“Ben parti kapatılması olayını doğru bulmuyorum. Fakat bu partinin yöneticilerinin bu işin bedelini ödemeleri gerekir diyorum. Fert fert, birey birey.”)
30.  Between 10 and 19 August 2015 self-governance was proclaimed in nineteen different towns in Turkey, the vast majority of them in the south-eastern region.
31.  Members of the YDG-H (Patriotic Revolutionary Youth Movement), regarded as the PKK’s youth wing, dug trenches and put up barricades in several towns in eastern and south-eastern Turkey, including Cizre, Silopi, Sur, İdil and Nusaybin, to prevent the security forces from entering. According to the security forces, members of the YDG-H had brought a large number of weapons and explosives into the region.
32.  In August 2015 several curfews were imposed in various towns of south-eastern Turkey by the local governors. The stated aim of the curfews was to clear the trenches that had been dug by members of terrorist organisations, to remove any explosives planted there, and to protect civilians from violence. The security forces carried out operations in the areas where the curfew was in place, using heavy weapons.
33.  Following the declaration of a curfew in Sur, the applicant gave a statement to the press in Lice on 13 September 2015, stating as follows:
“Our people want self-governance, their own assemblies and municipalities where responsibility lies with elected officials rather than appointees. Our people have the power to resist against pressure and massacre policies everywhere. We have the power to protect ourselves against any attack. We will show that we are not despairing; we will resist together; we will achieve salvation without forgetting our motherland and history and by defending our rights.” (“Halkımız atananların değil seçilmişlerin yetkili olduğu kendi meclisleri ile belediye ile kendini yönetmek istiyor. Halkımız her yerde baskı politikalarına katliam politikalarına karşı direnebilecek güçtedir. Bütün saldırılara karşı kendimizi koruyacak gücümüz var. Çaresiz olmadığımızı gösteriyoruz, birlikte direneceğiz, kendi ana vatanımızı da tarihimizi de unutmadan haklarımızı da savunarak hep birlikte kurtuluşa gideceğiz.”)
34.  Following the failure of negotiations to form a coalition government, early elections were held on 1 November 2015, in which the HDP polled 10% of the vote. The AKP won the elections and regained its majority in the National Assembly.
35.  In a press statement on 18 December 2015 the applicant stated:
“Everywhere you carry out [security] operations is filled with an atmosphere of enthusiasm rather than fear and panic. Do you know why? [Because] these people are so sure that they will triumph from the very first day. They are the defenders of an honourable, proud and dignified cause. We will not let cruelty and fascism win any more; this resistance will triumph. Those who try to downplay it by calling it [resistance of] ditches and holes should look back at history. There are tens of millions of heroes and brave people resisting against this coup. You are waging a war against the people. The people are resisting and will resist everywhere. Next week, on 26 and 27 December, we will attend the extraordinary meeting of the Democratic Society Congress in Diyarbakır. We will have intensive discussions and take important decisions concerning the processes of self-governance and autonomy and their operation in the political arena. We will implement them all.” (“Bugün operasyon yaptığınız her yerde korku ve panik havası değil coşku havası hakim. Neden biliyor musunuz ? O insanlar daha ilk günden kazandıklarından o kadar eminler ki. Onurlu, şerefli, haysiyetki bir davanın savunucularıdır. Bir kez daha zulmün, faşizmin kazanmasına izin vermeyeceğiz, bu direniş kazanacaktır. Öyle hendek, çukur diye küçümsemeye çalışanlar da dönüp tarihe baksınlar. On milyonlarca kahraman, yiğit bu darbeye karşı direnen insan var. Sen halka karşı savaş açmışsın. Halk her yerde direnir, direnecektir. Önümüzdeki haftasonu 26-27 Aralık’ta Diyarbakır’da Demokratik Toplum Kongresi’nin olağanüstü kongresine bizler de katılacağız. Öz yönetimin, özerkliğin inşası ve içinin doldurulması sürecinn siyasi zeminde daha güçlü yönetilmesi için çok yoğun tartışmalar yapacağız, önemli kararlar alacağız. Bunların hepsini hayata geçireceğiz.”)
36.  On 26 December 2015 the applicant attended the extraordinary meeting of the Democratic Society Congress (DTK). He gave a speech in which he defended self-governance and the resistance. He also stated that barricades and trenches had been set up to thwart the Ankara authorities’ plans for a massacre. The DTK’s closing declaration included a call for the creation of autonomous regions.
37.  On 29 December 2015 the President of Turkey stated to the press that the applicant’s speeches amounted to “clear provocation and treason”.
38.  In a speech on 26 March 2016 the applicant drew a distinction between war, which he described as illegitimate, and resistance, which he said was a legitimate response to the fascist policies of the political authorities in accusing millions of people of being terrorists.
39.  On 16 March 2016 the President of Turkey gave a speech to village and neighbourhood mayors (muhtars) at the presidential complex. The relevant parts of the speech read as follows:
“We must immediately settle the issue of immunity. Parliament must move forward quickly. [We cannot discuss whether to lift the immunity of just] one or two people. We need to adopt a principle. What is this principle? Those who cause the death of fifty-two people by getting my Kurdish brothers to pour into the streets will show up in Parliament, those who say that the PKK, the PYD [Democratic Union Party] and the YPG are behind them will have clean hands, is that it? If Parliament does not take the necessary action, this nation and history will hold it accountable.” (“Dokunulmazlıklar meselesini süratle neticelendirmeliyiz. Parlamento adımını süratle atmalıdır. Bir kişi mi olsun, iki kişi mi ? Biz ortaya ilkeyi koymalıyız. Nedir bu ilke? Benim Kürt kardeşlerimi sokağa dökerek 52 kişinin ölümüne yol açan kişiler yargılanmayacak da parlamentoda boy gösterecek, arkasında PKK’nin, PYD’nin, YPG’nin olduğunu söyleyenler temiz olacak öyle mi? Parlamento gereğini yapmazsa, bu millet, tarih bu parlamentodan hesabını sorar.”
40.  On 20 May 2016 the National Assembly passed a constitutional amendment by inserting a provisional Article in the 1982 Constitution. Pursuant to the amendment, parliamentary immunity was lifted in all cases where requests for the lifting of immunity had been transmitted to the National Assembly prior to the date of adoption of the amendment in question. The relevant parts of the explanatory memorandum on the constitutional amendment read as follows:
“At a time when Turkey is waging the largest and most intensive campaign against terrorism in its history, certain members of parliament, whether before or after their election, have made speeches amounting to moral support for terrorism, have provided de facto support and assistance to terrorism and terrorists [and] have called for violence; [these actions] have aroused public indignation. The Turkish public is of the view that members of parliament who support terrorism and the terrorist[s] and call for violence are abusing their [parliamentary] immunity, and has urged the Turkish Grand National Assembly to allow the prosecution of anyone carrying out such activities. In the face of such a demand, it is inconceivable that the Assembly should remain silent.” (“Türkiye, tarihinin en büyük ve en kapsamlı, terörle mücadelesini yürütürken, bazı milletvekillerinin seçilmeden önce ya da seçildikten sonra yapmış oldukları teröre manevi ve moral destek manasındaki açıklamaları, bazı milletvekillerinin teröre ve teröristlere fiili manada destek ve yardımları, bazı milletvekillerinin ise şiddet çağrıları kamuoyunda büyük infial meydana getirmektedir. Türkiye kamuoyu milletvekillerinden, her şeyden önce, terörü ve teröristi destekleyen, şiddete çağrı yapan milletvekillerinin dokunulmazlığı istismar ettiğini düşünmekte, bu tür fiilleri olanların yargılanmasına Meclis tarafından izin verilmesini talep etmektedir. Böyle bir talep karşısında, Meclis’in sessiz kalması düşünülemez.”)
41.  The constitutional amendment affected a total of 154 members of the National Assembly, including fifty-nine from the CHP (Republican People’s Party), fifty-five from the HDP, twenty-nine from the AKP and ten from the MHP (Nationalist Movement Party). It also concerned one independent member of parliament.
On various dates, fourteen members of parliament from the HDP, including the applicant, and one from the CHP were placed in pre-trial detention as the subject of criminal investigations.
42.  On an unknown date, seventy members of parliament applied to the Constitutional Court for a review of the constitutional amendment. Their main contention was that the amendment should be treated as a “parliamentary decision” under Article 83 of the Constitution entailing the lifting of the immunity attaching to their status as members of parliament. They argued that the Constitutional Court should review the constitutionality of that “decision” in accordance with Article 85 of the Constitution.
43.  In judgment no. 2016/117 delivered on 3 June 2016, the Constitutional Court unanimously rejected the application for a review of the constitutional amendment as a parliamentary decision on the lifting of the immunity of the members concerned. It observed that the case before it concerned a constitutional amendment in the formal sense of the term, which could not be treated as a parliamentary decision to lift the parliamentarians’ immunity. It further noted that the amendment in question could be reviewed in accordance with the procedure laid down in Article 148 of the Constitution. However, under that procedure, only the President of Turkey or one-fifth of the 550 members of the National Assembly could apply for a review. Finding that this condition was not satisfied in the case before it, the Constitutional Court rejected the application by the members of parliament concerned.
44.  The constitutional amendment was published in the Official Gazette on 8 June 2016 and came into force the same day.
45.  On unspecified dates while the applicant was serving as a member of parliament, thirty-one investigation reports (fezleke) were drawn up in respect of him by the competent public prosecutors. The prosecutors applied to the National Assembly to have the applicant’s parliamentary immunity lifted in connection with the criminal investigations concerning him. A large majority of the reports concerned terrorism-related offences.
46.  Following the entry into force of the constitutional amendment concerning the lifting of parliamentary immunity, the Diyarbakır public prosecutor (“the public prosecutor”) decided to join all the criminal investigations in respect of the applicant under file number 2016/24950.
47.  On 12 July, 15 July, 28 July, 12 August, 6 September and 11 October 2016 the competent public prosecutors issued summonses for the applicant to give evidence. However, the applicant did not appear before the investigating authorities. In a speech at a meeting of his party’s parliamentary group in April 2016, the applicant had stated that no HDP member of parliament would give evidence voluntarily.
48.  On 9 September 2016 the Diyarbakır Magistrate’s Court ordered restrictions on the right of the applicant’s lawyers to inspect the contents of the investigation file or to obtain copies of documents in the file. On an unspecified date, the applicant lodged an objection against that decision, but the objection was dismissed on 19 November 2016.
49.  On 3 November 2016, at the public prosecutor’s request, the Diyarbakır Magistrate’s Court ordered a search of the applicant’s home.
50.  On 4 November 2016 the applicant was arrested at his home and taken into police custody. Officers of the Diyarbakır police carried out a search at his home.
51.  On the same day, the applicant, assisted by three lawyers, appeared before the public prosecutor. Arguing that he had been arrested and taken into police custody on account of his political activities and on the orders of the President of Turkey, the applicant stated on that occasion that he would not answer any questions relating to the accusations against him.
52.  Afterwards, the public prosecutor asked the Diyarbakır 2nd Magistrate’s Court to place the applicant in pre-trial detention for membership of an armed terrorist organisation (Article 314 § 1 of the Criminal Code (“the CC”)) and for incitement to commit an offence (Article 214 § 1 of the CC).
53.  Later on 4 November 2016, the applicant appeared before the Diyarbakır 2nd Magistrate’s Court and was questioned about his alleged acts and the accusations against him. The applicant repeated the comments he had made to the public prosecutor and stated that he would not answer any questions. In the reasons for its decision, the Diyarbakır 2nd Magistrate’s Court noted firstly that the constitutional amendment had lifted the applicant’s parliamentary immunity in relation to the offences concerned. It then observed that, during the escalation of clashes between Daesh and the PYD in Syria in October 2014, the PKK had issued several calls for people to take to the streets. Almost simultaneously, three tweets had been published on behalf of the HDP central executive board, of which the applicant was a member and co-chair, likewise urging people to go out into the streets. The magistrate noted that during the events of 6 to 8 October 2014, PKK supporters had committed a number of offences, and in particular had caused the death of fifty people, injuries to 678 others and damage to 1,113 buildings. In his view, the tweets sent by the HDP gave rise to a strong suspicion that the applicant had committed the offence of incitement to commit an offence, in view of his position within the HDP. Next, he observed that the applicant had given several speeches in which he had described certain acts by PKK members, such as digging trenches and putting up barricades in towns, as “resistance”, and had participated in activities of the Democratic Society Congress, an organisation which, according to the magistrate, operated in accordance with the KCK Agreement. He added that the applicant was the subject of several ongoing criminal investigations by the public prosecutor’s office concerning terrorism-related offences such as:
–  committing offences on behalf of a terrorist organisation without being a member of it;
–  disseminating propaganda in favour of a terrorist organisation;
–  assisting an illegal organisation;
–  public incitement to hatred and hostility;
–  condoning crime and criminals;
–  participating in unlawful meetings and demonstrations.
In the magistrate’s view, those facts were a sufficient basis for a strong suspicion that the applicant had committed the offence of membership of a terrorist organisation. The magistrate added that the offences in question were among those listed in Article 100 § 3 of the Code of Criminal Procedure (“the CCP”) – the so-called “catalogue offences”, for which a suspect’s pre-trial detention was deemed justified in the event of strong suspicion. Subsequently, taking into account the severity of the sentences prescribed by law for the offences in question, he held that the measure of pre-trial detention was necessary and proportionate and that alternative measures to detention appeared insufficient.
54.  On 8 November 2016 the applicant lodged an objection against the order for his pre-trial detention. In a decision of 11 November 2016 the Diyarbakır 3rd Magistrate’s Court dismissed the objection.
55.  On 1 December 2016 the Diyarbakır Magistrate’s Court examined of its own motion the question of the applicant’s continued pre-trial detention, on the basis of the case file alone. The magistrate ordered his continued detention, having regard to the existence of grounds justifying it; the nature of the alleged offences and the fact that they were among those listed in Article 100 § 3 of the CCP; the reasonable suspicion that the applicant had committed a criminal offence within the meaning of Article 5 of the Convention; the strong suspicion against the applicant for the purposes of Article 19 of the Constitution; and the factual evidence grounding a strong suspicion that he had committed an offence for the purposes of Article 100 of the Code of Criminal Procedure. Taking into account the severity of the sentences prescribed by law for the offences in question, the magistrate held that the applicant’s continued pre-trial detention was proportionate and that alternative measures to detention appeared insufficient.
56.  On 11 January 2017 the public prosecutor filed a bill of indictment with the Diyarbakır Assize Court in respect of the applicant, running to 501 pages (not including the appendices). He charged the applicant with forming or leading an armed terrorist organisation (Article 314 § 1 of the CC), disseminating propaganda in favour of a terrorist organisation (fifteen counts – section 7(2) of the Prevention of Terrorism Act (Law no. 3713)), incitement to commit an offence (Article 214 § 1 of the CC), condoning crime and criminals (four counts – Article 215 § 1 of the CC), public incitement to hatred and hostility (two counts – Article 216 § 1 of the CC), incitement to disobey the law (Article 217 § 1 of the CC), organising and participating in unlawful meetings and demonstrations (three counts – section 28(1) of the Meetings and Demonstrations Act (Law no. 2911)), and not complying with orders by the security forces for the dispersal of an unlawful demonstration (section 32(1) of Law no. 2911). He sought a sentence of between forty-three and 142 years’ imprisonment for the applicant.
57.  The charges brought against the applicant by the public prosecutor may be summarised as follows.
(i) In a speech he had given in Batman on 27 October 2012 in the offices of the Peace and Democracy Party (“the BDP”, a left-wing pro-Kurdish political party), the applicant had disseminated propaganda in favour of the PKK terrorist organisation by urging people to close their shops and not to send their children to school as a protest aimed at securing the release of the PKK leader.
(ii) On 13 November 2012 two demonstrations had been held in Nusaybin and Kızıltepe in protest against the conditions of the PKK leader’s detention, and the applicant had made the following comments in Kızıltepe:
“They said you couldn’t put up the poster of Öcalan. Those who said it ... Let me speak clearly. We are going to put up a sculpture of President Apo. The Kurdish people have now risen up. With their leader, their party, their elected representatives, their children, their young and old, they are one of the greatest peoples of the Middle East.” (“Demişler ki Öcalan posteri asamazsınız. Onu diyenlere açıkça sesleniyorum... Biz başkan Apo’nun heykelini dikeceğiz heykelini. Kürt halkı artık ayağa kalkmış bir halktır. Önderiyle, partisiyle, seçilmişiyle, çocuğuyla, genciyle, yaşlısıyla Ortadoğu’nun en büyük halklarından biridir.”)
According to the bill of indictment, these comments amounted to propaganda in favour of a terrorist organisation.
(iii) In a speech he had given in the BDP offices in Diyarbakır on 21 April 2013, the applicant had made the following statements:
“The Kurdish movement used to see the war as a war of self-defence. Nowadays, if you have enough experience to resist [and] prevail using non-violent methods, it is not morally [and] politically right to use weapons. Today, those who criticise us also say that the Kurdish people would not exist, at least in Turkish Kurdistan, without the PKK movement. You could not speak of the existence of Kurds in Turkish Kurdistan. Without the coup in 1984 [the year of the first PKK attacks], without the guerrillas, no one today could speak of the existence of the Kurdish people; the Kurds would have no other choice. ... At the time of the initial resistance in Şemdinli [and] Eruh [the first terrorist attacks by the PKK, carried out in the Şemdinli district in Hakkari and the Eruh district in Siirt on 15 August 1984], no one was aware of what was happening but the resistance has today created [the] reality of the [Kurdish] people. We have gained our identity.” (“Kürt hareketi savaşı meşru müdafaa savaşı olarak ele aldı. Şimdi eğer elinizde silah dışında yöntemlerle güçle, mekanizmayla direnebilecek, başarabilecek yeteri kadar birikim varsa siz buna rağmen silahı kullanırsınız birincisi bu ahlaki olmaz ikincisi de siyasi olarak da doğru bir tercih olmaz. Kürt halkı evet bugün biz sadece söylemiyoruz, bizi eleştirenler de söylüyordu, PKK hareketi olmasaydı bugün Kürt halkı diye bir şey Türkiye Kürdistan’ı için en azından olmayacaktı. Türkiye Kürdistanı’nda Kürtlerin varlığından söz edilmeyecekti. 1984 hamlesi olmasaydı, gerilla savaşı olmasıydı, kimse bugün Kürt halkının varlığından söz edemezdi, çünkü Kürtlerin başka çaresi yoktu. ... Şemdinli’de Eruh’ta ilk direniş sergilendiğinde kimse ne olduğunun farkında değildi ama o direniş bugün büyük bir halk gerçeği yarattı. Kimliğimizi kazandık.”)
(iv) Following the proclamations of self-governance and the operations conducted by the security forces, the applicant had stated on several occasions that the operations in question were massacres carried out by the national authorities and had described certain acts attributed to members of the PKK as acts of resistance.
(v) The applicant had actively worked for the DTK organisation, founded according to the public prosecutor in order to raise public awareness of the PKK’s views, and had given speeches at meetings organised by the DTK.
(vi) The applicant was in charge of the political wing of the KCK illegal organisation; the public prosecutor presented evidence against him including the following:
–  two documents, entitled “documento” and “ikram ark”, discovered on a hard drive seized from the home of a certain A.D., who had been sentenced to eighteen years’ imprisonment for leading a terrorist organisation; according to those documents, the KCK leader in Turkey, S.O., had given instructions to several people, including the applicant, to visit the relatives of İ.E., who had been mistakenly assassinated by the PKK;
–  the records of intercepted telephone conversations between S.O. and K.Y., a person who had been sentenced to twenty-one years’ imprisonment for leading a terrorist organisation, and between K.Y. and the applicant; according to those records, S.O. had given instructions to several people, including the applicant, to take part in certain meetings abroad, including in Strasbourg.
(vii) The applicant had incited the acts of violence that had taken place between 6 and 8 October 2014 through his speeches and statements, the relevant parts of which are summarised in paragraphs 22-23 above.
58.  On 2 February 2017 the Diyarbakır Assize Court accepted the bill of indictment filed by the public prosecutor. On the same day, it contacted the Ministry of Justice, asking it to take the necessary steps to transfer the venue of the applicant’s trial on public safety grounds. Also on the same day, it ordered the continuation of the applicant’s pre-trial detention.
59.  On 1 March 2017 the Diyarbakır Assize Court examined of its own motion the question of the applicant’s continued detention. Having regard to the number and nature of the charges against the applicant and the concrete evidence grounding a strong suspicion that he had committed an offence, and bearing in mind that he had yet to provide his defence submissions, that he had refused to appear before the investigating authorities, that the alleged offences were among those listed in Article 100 § 3 of the CCP and that the grounds for keeping him in detention remained unchanged, it ordered his continued pre-trial detention. In view of the severity of the sentences provided for by law for the offences in question, the Diyarbakır Assize Court held that the application of alternative measures to detention would be insufficient.
60.  On an unspecified date the applicant lodged a further objection against the decision to continue his pre-trial detention. In a decision of 14 March 2017 the Diyarbakır Assize Court dismissed the objection on the basis of the nature of the alleged offences, the state of the evidence, the period that the applicant had spent in detention, the strong suspicion that he had committed the offences in question and his refusal to appear before the investigating authorities during the investigation.
61.  On 22 March 2017, at the request of the Ministry of Justice, the Court of Cassation, finding that a change of venue for the applicant’s trial was appropriate in order to avoid threats to public safety, transferred the case to the Ankara Assize Court.
62.  On 6 April 2017, the Diyarbakır Assize Court forwarded the file to the Ankara Assize Court.
63.  On 22 June 2017 the Ankara 19th Assize Court, examining the question of its own motion, ordered the applicant’s continued detention. In so doing, it took account firstly of the existence of concrete evidence grounding a strong suspicion that the applicant had committed the alleged offences and of the upper and lower limits of the sentences prescribed for those offences. Next, it found that the prevention of disorder and of further offences constituted valid grounds for pre-trial detention in the light of Article 5 of the Convention and the Court’s case-law. Having regard to the period that the applicant had spent in pre-trial detention, it also held that there was a risk of his absconding and tampering with evidence. For the same reasons, it concluded that the application of alternative measures to pre-trial detention would have been insufficient.
64.  On 3 October 2017, 103 days after its previous decision, the Ankara 19th Assize Court again examined the question of the applicant’s continued pre-trial detention. Having regard to the number and nature of the charges against him, the existence of concrete evidence grounding a strong suspicion that he had committed the offences in question and the upper and lower limits of the sentences prescribed for those offences, and bearing in mind that he had yet to provide his defence submissions, that he had refused to appear before the investigating authorities and that the grounds for keeping him in detention remained unchanged, it ordered his continued pre-trial detention. It also noted that in view of the prospect of the applicant’s conviction for the alleged offences, the application of alternative measures to pre-trial detention would be insufficient.
65.  On 7 December 2017 the Ankara 19th Assize Court held its first hearing in the case.
66.  During the trial, the applicant argued that he had been detained for expressing his political opinions, and denied having committed any criminal offence. He maintained that his initial and continued pre-trial detention were unlawful. In particular, he asserted that the aim of depriving him of his liberty had been to silence members of the opposition.
67.  During the investigation and the trial, the applicant lodged more than fifteen objections against his continued pre-trial detention. The national courts, in particular the Ankara 19th Assize Court, continued to extend his pre-trial detention, mainly on the same grounds as referred to in paragraphs 53, 55, 59, 60, 63 and 64 above.
68.  The criminal proceedings are currently pending before the Ankara 19th Assize Court.
69.  On 17 November 2016 the applicant lodged an individual application with the Constitutional Court. He complained firstly of a violation of his right to liberty and security and his right to engage in political activities. In that connection he submitted that he had been arrested, taken into police custody and placed in pre-trial detention on account of political speeches he had made as a member of parliament and co-chair of a political party. He argued that the statements he had made should be examined from the standpoint of his right to freedom of expression. He also contended that the reasons given by the domestic courts to justify his continued detention had been insufficient. In addition, he complained that he had no access to the investigation file in order to challenge his pre-trial detention. Lastly, he maintained that in view of his status as a member of parliament, his continued pre-trial detention amounted to a violation of the right to free elections.
70.  In a decision of 21 December 2017 the Constitutional Court declared the application inadmissible (decision no. 2016/25189).
71.  With regard to the complaint concerning the lawfulness of the applicant’s arrest and detention in police custody, it held that he should have brought an action under Article 141 § 1 (a) of the CCP but had refrained from doing so. Furthermore, it noted that he had not lodged an objection under Article 91 § 5 of the CCP against his detention in police custody. Accordingly, it declared the complaint inadmissible for failure to exhaust the appropriate remedies.
72.  As regards the complaint about the lawfulness of his pre-trial detention, the applicant had argued that his initial and continued detention were in breach of the Constitution as he enjoyed parliamentary immunity. The Constitutional Court noted in that connection that there was no constitutional rule preventing the pre-trial detention of a member of parliament whose parliamentary immunity had been lifted. It observed that the constitutional amendment of 20 May 2016 had made it possible to grant the requests for the lifting of the applicant’s parliamentary immunity that had been referred to the National Assembly before the adoption of the amendment. Referring to its judgment no. 2016/117 of 3 June 2016, it dismissed the applicant’s argument that his initial and continued pre-trial detention had no basis in law.
73.  Next, the Constitutional Court examined whether there had been a strong presumption that the applicant had committed an offence. It noted that, at a time when the internal conflict in Syria had posed a threat to national security in Turkey, following armed clashes in Kobani and alongside appeals from the PKK, the HDP had called on the people to take to the streets. Following those calls, serious violent incidents had started to take place on 6 October 2014. Tens of thousands of people had taken part in the incidents, and many people had lost their lives, while many others had suffered injuries. The Constitutional Court noted that the applicant had not argued that the calls in question had been issued against his will; on the contrary, he had stated that he stood behind them. Having regard to the number of deaths and injuries, it found that a causal link could be established between the calls issued by the HDP central executive board, which was co-chaired by the applicant, and the acts of violence in question. Furthermore, with regard to the “trench events”, it held that, bearing in mind the statements made by the applicant, the places where he had made them and his position as co-chair of the HDP, his pre-trial detention in connection with a terrorism-related offence was not unfounded. Thus, referring to the content of the speeches given by the applicant on 13 November 2012 and 21 April 2013 (see paragraph 57 (ii) and (iii) above), it observed that a finding that the speeches amounted to evidence of the commission of an offence could not be viewed as manifestly ill-founded. Lastly, having regard to the contents of the conversations between senior officials of the PKK and the applicant, it found that it had been legitimate to consider that the applicant might have acted in accordance with the instructions of the leaders of a terrorist organisation. It therefore held that these factors were sufficient grounds for a strong suspicion that the applicant had committed an offence.
74.  The Constitutional Court then went on to consider whether the applicant’s initial and continued pre-trial detention had been based on justifiable grounds. First of all, it examined whether the detention had pursued a legitimate aim. It noted in that connection that, having established that there was a strong suspicion that the applicant had committed the alleged offences, the Diyarbakır 2nd Magistrate’s Court had ordered his pre-trial detention on the grounds that the offences in question were among those listed in Article 100 § 3 of the CCP and were punishable by heavy sentences. The Constitutional Court noted that the severity of the potential sentence was a factor to consider when assessing the risk of absconding. It added that the applicant had refused to appear before the investigating authorities and had stated that no member of parliament from his party would give evidence voluntarily. Those aspects were sufficient in the court’s view to conclude that there was a flight risk.
75.  The Constitutional Court then considered whether the applicant’s initial and continued pre-trial detention were proportionate to the aim pursued. In that context, the applicant had alleged that his detention had prevented him from carrying out his political activities. Referring to several Constitutional Court judgments concerning the pre-trial detention of members of parliament, he had argued that his detention was disproportionate to the aim pursued, in view of his status as a member of parliament. In relation to that point, the Constitutional Court noted firstly that, contrary to what the applicant had maintained, it had never given a judgment in which it had found that the pre-trial detention of a member of parliament whose immunity had been lifted amounted in itself to a breach of the Constitution. It noted that in the cases of Kemal Aktaş and Selma Irmak (no. 2014/85), Faysal Sarıyıldız (no. 2014/9), İbrahim Ayhan (no. 2013/9895) and Gülser Yıldırım (no. 2013/9894), no review of the lawfulness of the applicants’ pre-trial detention had been carried out since they had not raised a complaint on that account. In the cases of Mehmet Haberal (no. 2012/849) and Mustafa Ali Balbay (no. 2012/1272) it had declared the complaints as to the lawfulness of the applicants’ detention inadmissible as being manifestly ill-founded. In those judgments it had examined the complaints concerning the right to be elected and to carry out political activities in conjunction with the complaints about the length of the applicants’ pre-trial detention. In finding a violation of the right to liberty and security of the members of parliament concerned, it had weighed the public interest inherent in the exercise of the right to be elected and to carry out political activities against the length of the applicants’ detention (four years, three months and twenty-two days in the Mehmet Haberal judgment (no. 2012/849); four years and five months in Mustafa Ali Balbay (no. 2012/1272); four years, eight months and sixteen days in Kemal Aktaş and Selma Irmak (no. 2014/85); four years, six months and fifteen days in Faysal Sarıyıldız (no. 2014/9); three years, two months and twenty-six days in İbrahim Ayhan (no. 2013/9895); and three years, ten months and five days in Gülser Yıldırım (no. 2013/9894)). The Constitutional Court further noted that as the applicant had been placed in pre-trial detention a long time after the alleged offences had been committed, it had to examine whether or not his initial and continued pre-trial detention could have been regarded as necessary in the circumstances. In that context, it pointed out that, in accordance with Article 83 of the Constitution, the applicant could not have been placed in pre-trial detention while he enjoyed parliamentary immunity. It observed that the investigation reports concerning him had been sent to the competent public prosecutors after the entry into force of the constitutional amendment introducing an exception to parliamentary immunity in his case, and that he had been placed in pre-trial detention some five months afterwards. It was therefore clear from the evidence in the case file that the investigating authorities had not remained inactive during that period. The Constitutional Court further held that it was unable to conclude that the applicant’s initial and continued pre-trial detention had been disproportionate and arbitrary, notably in view of the severity of the sentences prescribed for the offences in question. For those reasons, it declared this part of the application inadmissible as being manifestly ill-founded.
76.  The applicant had also argued, relying on Article 18 of the Convention, that he had been placed in pre-trial detention for a purpose other than those provided for in Article 5 of the Convention. Having regard to its conclusion concerning the lawfulness of the applicant’s pre-trial detention, the Constitutional Court found that it was unnecessary to examine that complaint.
77.  Concerning the applicant’s complaint that he had had no access to the investigation file, the Constitutional Court held that he had had sufficient means available to prepare his defence to the charges against him and to challenge his pre-trial detention, in view of the contents of the investigation reports submitted to the National Assembly by the public prosecutors. It observed that the applicant and his representatives had had unrestricted access to those reports. Next, it examined the public prosecutor’s application of 4 November 2016 for the applicant to be placed in pre-trial detention for membership of an armed terrorist organisation and incitement to commit an offence, and the order of the same day for his pre-trial detention. It found that although the applicant had not had an unlimited right of access to the evidence in the file between 9 September 2016 and 2 February 2017, he had had sufficient knowledge of the substance of the evidence forming the basis for his pre-trial detention and had thus had the opportunity to properly contest the reasons given to justify the detention. Accordingly, it declared this complaint inadmissible as being manifestly ill-founded.
78.  Lastly, regarding the complaints relating to the right to freedom of expression and the right to be elected and to carry out political activities, the Constitutional Court, having regard to its conclusion in relation to the applicant’s complaint as to the lawfulness of his pre-trial detention, declared them inadmissible as being manifestly ill-founded.
79.  In his dissenting opinion, the judge in the minority likewise considered, on the basis of the evidence in the case file, that there was a strong suspicion that an offence had been committed by the applicant. However, referring to the principles established in the Court’s case-law, particularly in Buzadji v. the Republic of Moldova ([GC], no. 23755/07, 5 July 2016), he expressed the view that the applicant’s detention was not proportionate in so far as it had not been shown that there were relevant and sufficient reasons to justify it. In his opinion, the judicial authorities had not explained why the application of an alternative measure to detention would have been insufficient. Turning to the risk of absconding, he observed firstly that the orders for the applicant’s initial and continued pre-trial detention had given two main reasons to substantiate that risk, namely the severity of the sentences prescribed by law for the offences in question and the fact that the applicant had refused to appear before the investigating authorities. In the dissenting judge’s view, however, the severity of a sentence could not per se justify a person’s pre-trial detention. Similarly, he considered that it could not be concluded that the applicant’s refusal to appear was an indication of a flight risk, since he had continued to carry out his political activities without demonstrating any intention of absconding. Furthermore, the dissenting judge noted that between the entry into force of the amendment to the Constitution lifting the applicant’s parliamentary immunity and the date of his initial pre-trial detention, the applicant had travelled abroad more than ten times and had never attempted to flee. For these reasons, he was of the view that there had been a violation of Article 19 of the Constitution in the applicant’s case. Noting in addition that the applicant was a member of parliament and co-chair of a political party that had obtained more than five million votes, the dissenting judge considered that his pre-trial detention without relevant and sufficient reasons also amounted to a breach of the right to be elected and to carry out political activities as safeguarded by Article 67 of the Constitution.
80.  On 20 April 2018 the National Assembly decided to bring forward to 24 June 2018 the presidential and parliamentary elections scheduled for 2019. The applicant stood as a candidate in the presidential election.
81.  On 15 May 2018 the applicant lodged an objection seeking his release, on the grounds that he was a candidate in the presidential election.
82.  On 21 May 2018 the Ankara 19th Assize Court, by a majority, dismissed the objection, on the following grounds:
–  the existence of evidence grounding a strong suspicion that the applicant had committed the offences of which he was accused;
–  the fact that the offences in question were among those listed in Article 100 § 3 of the CCP;
–  the severity of the sentences prescribed by law for the offences concerned;
–  the finding that alternative measures to detention appeared insufficient;
–  the applicant’s refusal to appear before the investigating authorities;
–  the fact that the applicant’s defence submissions had not yet been obtained.
In a dissenting opinion, the judge in the minority expressed the view that, since the applicant was a candidate in the presidential election, he should be released pending trial in accordance with Article 67 of the Constitution and Article 3 of Protocol No. 1 to the Convention.
83.  On 22 May 2018 the applicant lodged an objection against that decision. On 23 May 2018 the objection was dismissed by the Ankara 20th Assize Court.
84.  On 29 May 2018 the applicant lodged another individual application with the Constitutional Court. He alleged a violation of Articles 5 and 10 of the Convention and Article 3 of Protocol No. 1 to the Convention.
85.  It appears from the case file that the proceedings concerning this application are still pending before the Constitutional Court.
86.  On 7 September 2018, in the context of separate criminal proceedings, the Ankara Assize Court, on the basis of section 7(2) of the Prevention of Terrorism Act (Law no. 3713), sentenced the applicant to four years and eight months’ imprisonment on account of a speech he had given at a rally in Istanbul on 17 March 2013. This case is still pending in the domestic courts.