Selahattin Demirtaş v. Turkey (No. 2), No. 14305/17, ECtHR (Grand Chamber), 22 December 2020

Member of parliament excluded from parliamentary proceedings as a result of his prolonged pre-trial detention without sufficient justification.

Art. 3 Prot. 1 ECHR
Art. 10 ECHR
Art. 5 ECHR
Art. 18 ECHR

1. The right to free elections is not merely a guarantee of the possibility of participating in parliamentary elections, but also the right for the elected person to exercise his or her duty as a member of parliament. The rule of parliamentary immunity is fundamental to this guarantee. The imposition of a measure depriving a member of parliament or a candidate in parliamentary elections of his or her liberty does not automatically constitute a violation of Article 3 Prot. 1 of the ECHR. However, given the importance in a democratic society of the right to liberty and security of a Member of Parliament, national courts must show, in the exercise of their discretion, that in ordering the pre-trial detention of an elected person, they have weighed all these relevant interests, including the freedom of expression of the political opinions of Members of Parliament. The role of the Court is therefore to review the decisions of national courts from the perspective of the Convention, without substituting itself for the competent national authorities.

2. The applicant's actual inability to participate in the activities of the National Assembly because of his pre-trial detention constituted an unjustified interference with the principle of freedom of expression and with his own right to be elected and to sit in Parliament. The detention was therefore incompatible with the very essence of the right under Article 3 Prot. 1 ECHR.
(The applicant was an elected member of the National Assembly and one of the co-chairs of the Peoples' Democratic Party (HDP), a left-wing and pro-Kurdish Turkish political party. On 20 May 2016, an amendment to the Constitution was adopted whereby parliamentary immunity was waived in all cases where requests for waiver had been forwarded to the National Assembly prior to the date of adoption of the amendment. The applicant was one of 154 parliamentarians (including 55 members of the HDP) affected by the constitutional amendment. In November 2016 he was arrested on suspicion of belonging to an armed terrorist organisation and inciting others to commit crimes. Following further investigation, the applicant remains in detention pending trial. His parliamentary term expired on 24 June 2018).