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Keywords: detention of a member of parliament; lack of reasonable suspicion of applicant having committed an offence and lack of reasonableness of pre-trial detention; limitation of passive suffrage; parliamentary immunity; pre-trial detention pursuing the ulterior motive of stifling pluralism and limiting freedom of political debate; right to free elections; right to freedom of expression
In Selahattin Demirtaş v. Turkey (application no. 14305/17), the European Court of Human Rights considered the issue of pre-trial detention of a member of parliament, who at the time of the events was one of the co-chairs of the Peoples’ Democratic Party (HDP), a left-wing pro-Kurdish political party. The arrest related to the exercise of his duties as an elected representative and restricts him to exercise parliamentary functions. The European Court pointed out the need for a well-founded crime by a parliamentarian, higher requirements for the analysis of evidence by courts in proceedings against current parliamentarians, and the inadmissibility of using detention on ulterior motives of suppressing pluralism and restricting freedom of the political debate. The Court revealed the presence of ulterior motives in the form of suppression of opposition from the circumstances of the arrest, the context of the criminal prosecution, and the conclusions of international organizations. The court also noted that the right to free elections is not limited to simply being able to take part in parliamentary elections; a person also has the right, after being elected, to take part in the activities of parliament and to take part in its sessions. The possibility to participate in parliamentary debates in writing is not enough. In the context of the admissibility of the complaint, the Court also noted that the complaint to the Inter-Parliamentary Union is not “the subject of “another procedure of international investigation or settlement”, since it does not adjudicate a dispute between an individual and a state based on a legal instrument by which States have agreed to recognize its authority to do so in respect of certain clearly defined rights, and therefore does not prevent the filing of an application with the Court.
Citation: (2021) Evropeyskiy Sud po pravam cheloveka: obzor postanovleniya ot 22 dekabrya 2021 goda po delu Selahattin Demirtaş protiv Turtsii (No. 2) (zhaloba no. 14305/17) [European Court of Human Rights: review of the Grand Chamber judgment of 22 December 2020 in the case of Selahattin Demirtaş v. Turkey (No. 2) (application no. 14305/17)]. Mezhdunarodnoe pravosudie, vol. 10, vol. 11, no. 2, pp. 3–14. (In Russian).