In the case of Selahattin Demirtas v. Turkey (2), the Grand Chamber of the European Court of Human Rights established that Turkey’s anti-terror provision (Article 314 of the Turkish Penal Court) under which Mr Demirtas was arrested and sentenced was not foreseeable.
The foreseeability is one of criteria that the ECtHR applies while assessing the quality of a certain law used by a state party to justify its intervention into a right or freedom.
The Grand Chamber while establishing a violation about Mr Demirtas’ complaint under Art. 5 of the Convention concluded that the range of acts that could have justified the applicant’s pre-trial detention under Article 314 of the Criminal Code was so broad that the content of that provision, coupled with its interpretation by the domestic courts, did not afford adequate protection against arbitrary interference by the national authorities. On that account, it found that the terrorism-related offences at issue, as interpreted and applied in the present case, were not “foreseeable”. (Para. 337)
Regarding the complaint under Art. 10 of the Convention which was also upheld by the Grand Chamber of the Court, ‘the range of acts that may have justified the applicant’s pre-trial detention in connection with serious offences punishable under Article 314 of the Criminal Code is so broad that the content of that Article, coupled with its interpretation by the domestic courts, does not afford adequate protection against arbitrary interference by the national authorities. In the Court’s view, such a broad interpretation of a provision of criminal law cannot be justified where it entails equating the exercise of the right to freedom of expression with belonging to, forming or leading an armed terrorist organisation, in the absence of any concrete evidence of such a link.(Para. 280)’ was said.
The Court ordered the immediate release of Mr Demirtas while establishing violation of Arts. 10, 5 §1-3, 18 of the Convention, as well as violation of Art. 3 of Protocol No. 1.
The Turkish Government is infamous for the systematic abuse of anti-terror provision. According to our survey there is a steady increase in the use of anti-terrorism law on individuals by public prosecutors. So, while 8.416 charges were filed under Article 314 of the TPC in 2013, this number became 146.731 in 2017, 115.753 in 2018, and 54.464 in 2019. These statistics highlight that Turkish public prosecutors have filed more than 392,000 charges under Article 314 of the Turkish Penal Code within the last seven-years. What is worse, between 2016 and 2019 more than 220,000 individuals have been sentenced for membership of an armed terrorist organisation.
Grand Chamber’s judgment strongly indicates that Turkey’s mass-detentions under the Art. 314 of Penal Code which has victimized hundreds of thousand people would be condemned by the Court.