Constitution cited in dissenting opinion

Seven pages of the nine-page court ruling dismissing the application for the release of HDP presidential candidate Selahattin Demirtaş are made up of the dissenting opinion text. Member judge of Ankara Serious Crime Court No 19, Cengiz Aydıner, stated in his dissenting opinion, making reference to the constitution and European Court of Human Rights rulings, that his detention violated his right to freely contest the election.

23 Mayıs 2018 Çarşamba, 15:12
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With it emerging that the ruling to dismiss the application for the release of HDP presidential candidate Selahattin Demirtaş was passed by a two to one majority, seven pages of the nine-page reasoned ruling are made up of the dissenting opinion text. Member judge of Ankara Serious Crime Court No 19, Cengiz Aydıner, stated in his seven-page dissenting opinion that the non-releasing of Selahattin Demirtaş violated constitutional articles and European Court of Human Rights rulings governing the right to vote and stand for election and basic rights. The HDP, for its part, has objected to Ankara Serious Crime Court No 19’s ruling denying release.

 Selahattin Demirtaş, nominated as presidential candidate by the HDP, had his candidacy confirmed on 13 May by the Supreme Election Council. After the Supreme Election Council had publicly announced his candidacy, Demirtaş applied for his release to Ankara Serious Crime Court No 19 that was hearing the trial pending which he was in detention. Ankara Serious Crime Court No 19 dismissed Demirtaş’s application for release the day before yesterday. With it emerging that the court’s ruling had been passed by a two to one majority, seven pages of the nine-page reasoned ruling were seen to be made up of the dissenting opinion text.

 It was recalled in the dissenting opinion text that Demirtaş had been elected as member of parliament for Diyarbakır in the 23rd period, Hakkâri in the 24th period and Istanbul in the 25th and 26th periods, had served as BDP and HDP co-chairs and had stood as a candidate in the presidential election the first time it was conducted by popular vote in 2014. Included in the dissenting opinion was the comment with reference to the legal proceedings being taken against Demirtaş, “The applicant’s remaining in detention in an unreasonable manner has prevented him from participating in legislative activity. This grave interference with his right as a member of parliament to engage in political activity cannot be said to comply with a balanced and democratic social order.”

 Jet-speed objection

 With it pointed out in the dissenting opinion text contained in the ruling that, taking account of the charges and acts imputed against Demirtaş in the indictment and the period he has been in detention, his remaining in detention for the duration of the presidential election would infringe on the essence of his right to freely contest elections, it was stated that Demirtaş’s release was warranted. Lawyers acting on behalf of the HDP objected to the next senior court against the dismissal ruling passed over Demirtaş’s application for release. Apparently, if the objection does not alter the outcome, either, the application will be taken to the Constitutional Court.

 Seven-page dissenting opinion

 Member judge of Ankara Serious Crime Court No 19, Cengiz Aydıner, stated in his seven-page dissenting opinion that the non-releasing of Selahattin Demirtaş violated constitutional articles and European Court of Human Rights rulings governing the right to vote and stand for election and basic rights. With Demirtaş’s detention described in the dissenting opinion as a “grave interference with his right to stand for election to engage in political activity,” it was underlined that this was “contrary to the requirements of a democratic social order.”

 Some of the constitutional articles and European Court of Human Rights rulings that dissenting judge Aydıner referred to were as follow: “Taking account of the charges and acts imputed in the indictment against Demirtaş, who has served as member of parliament and political party general chair for a long time in Turkish political life, who was a candidate in the previous presidential election and whose candidacy has been confirmed in the presidential election that will be held on 24 June 2018, and the period he has been in detention, I am of the opinion that, due to the non-compliance with provisions that restrictions on fundamental rights and freedoms may not infringe on their essence and may not be contrary to the proportionality principle protected in Article 13 of the Constitution of the infringing by his remaining in detention for the duration of the presidential election on the essence of his right to freely contest elections and his being prevented from effectively exercising this right, a decision is warranted pursuant to Article 67 of the Constitution of the Republic of Turkey and the second sentence of paragraph one of Article 13 of the Constitution of the Republic of Turkey to enable the exercising of rights in Article 13 of the Presidential Election Law, in part two with the heading ‘election propaganda’ of the Law on Basic Electoral Provisions and Voters Rolls and Article 3 of Protocol No 1 of the European Convention on Human Rights, for his release under the application of a judicial control measure barring his travelling abroad as per sub-paragraph a of paragraph three of Article 109 of the Code of Criminal Procedure.”

 “NEVER MIND US READ THE JUDGE’S OPINION”

 Following Ankara Serious Crime Court No 19’s dismissal of HDP presidential candidate Selahattin Demirtaş’s application for release, the dismissal ruling was objected to. Demirtaş’s lawyers along with HDP Deputy Co-Chair Ayşe Acar Başaran, Parliamentary Group Deputy Chair Meral Danış Beştaş and members of parliament Garo Paylan, Nimetullah Erdoğmuş, İmam Taşçıer, Hüda Kaya and Feleknaz Uca made a statement on the matter in front of Ankara Judicial Complex. HDP Group Deputy Chair Meral Danış Beştaş reacted to the denial of release saying, “It will cast a shadow on the elections in Turkey.” Beştaş said, “As ever, we learnt that Demirtaş’s release had been denied from Anadolu Agency and the pool media. It is official that this decision was taken, not in the judicial complex, but in Beştepe Palace and at AKP Headquarters.” Beştaş noted, “We are making our objections speedily today. They say there need to be certain grounds for extending detention. What are these? Well-known things like flight risk and tampering with evidence. There is in fact absolutely no merit in keeping a presidential candidate in jail on such suspicion. Indeed, note that the dissenting opinion that Mr Demirtaş should be released and his right to freely contest the election has been violated is a full seven pages. It has been discussed in detail. This opinion clearly sets out that Demirtaş remaining in prison for even one further minute is a grave injustice. A continuation of lawlessness.” HDP MP Ayşe Acar Başaran said the following addressing the court, “Look, a member penned a seven-page dissenting opinion. We are objecting just now. We call to the court that will examine this. Never mind our submission. Read the text of the member who wrote that dissenting opinion. He has truly given a lesson in the law. Let them read it and pass a just decision.”

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