MP condemned to jail

The Constitutional Court has announced its reasons for dismissing detained HDP Mardin MP Gülser Yıldırım’s application over rights violations. The supreme court said, “Initially, there exists no constitutional rule that members of parliament cannot be detained in situations in which exceptions are made to legislative immunity or such immunity is lifted. There is no ruling of the Constitutional Court that members of parliament cannot be detained, either.” On the other hand, when the court ruled that Gülser Yıldırım’s right had been violated when she had been detained in 2014, it said contrary to today’s opinion that, “What takes precedence is not blocking the people’s political will. The basic location for duty performance of members of parliament who have been authorised in free elections to decide on behalf of the people is parliament.” The Constitutional Court, convening on Thursday, saw fit to dismiss detained MP Gülser Yıldırım’s application that her right to be elected to office and engage in political activity had been violated on the grounds that it was “blatantly unfounded.” The supreme court, in the 43-page reasoned decision that it issued yesterday, recalled that Yıldırım, against whom nine summaries of proceedings were outstanding, had had her immunity lifted due to these cases by the General Assembly of Parliament on 20 May 2016. In the decision, in which it was stated that thanks to the HDP Co-Chair’s “unbending stance no MP would go to give statement,” Yıldırım also failed to heed a summons by Diyarbakır Public Prosecution and was arrested and detained on 4 November 2016.

 In the decision, in which it is recounted that the penal judgeship of the peace that issued the detention order had concluded that there existed strong suspicion of guilt of the offences of membership of the PKK armed terrorist organisation and publicly inciting the people to commit crimes with reference to certain facts and certain acts on the part of the applicant in the “6-7 October events” and the “trench events”, the following was said, summarised: “When consideration is given to the great many people who lost their lives and were injured in the violent actions known to the public as the ‘6-7 October events’, it is possible to establish a chain of causality between the call made on behalf of the HDP’s Central Executive Committee and the said violent events. The applicant has not asserted that the said call was made outside her volition and, on the contrary, has made statement in a manner that stands behind the call.” The following assessment was made in the decision in which it is recalled that Yıldırım was also charged over the trench events: “On the other hand when consideration is given to the large number of telephone calls and messages that the applicant who is a Mardin MP made with a terrorist who was killed in a clash entered into with the security forces in Mardin province Dargeçit sub-province during the events known to the public as the ‘6-7 October events’ and who was determined to be a rural area operative, along with the content of these messages, it can be said that the factual basis exists for terror-related charges to be filed over the said communications. Consequently, the assessment made in the detention order concerning the applicant that, ‘there exist strong signs that the offence was committed’ is not arbitrary. As such, the applicant’s claim that ‘detention is unlawful’ is blatantly unfounded.”

 “No constitutional rule”

 In the decision, in which it was asserted that until today the Constitutional Court had issued no ruling to the effect that the detaining of a member of parliament while serving as an MP was unlawful, the following was stated: “The Constitutional Court has in decisions it has previously rendered on members of parliament’s detention only examined complaints over detention exceeding a reasonable period in connection with the rights to be elected to office and engage in political activity. There exists no constitutional rule that members of parliament cannot be detained in situations in which exceptions are made to legislative immunity or such immunity is lifted. Contrary to the applicant’s assertions, the Constitutional Court has not in rulings it has previously issued (Mustafa Balbay, Mehmet Haberal, Kemal Aktaş, Selma Irmak, Faysal Sarıyıldız, İbrahim Ayhan and Gülser Yıldırım) concluded that members of parliament cannot be detained. Consequently, being a member of parliament does not per se constitute an obstacle to detention.”

 Demirtaş’s call

 It is pointed out in the reasoned decision that, on the motion for constitutional amendment on members of parliament’s immunity being submitted to parliament, it was stated in a speech made by the HDP’s Co-Chair with an unbending stance that no MP would go to give statement. It was said in the decision, “Consequently, this stance of the applicant was a political stance aimed at frustrating investigation and prosecution processes, rather than an individual stance, and, so, can be said to exhibit permanence. In conclusion, it has been ascertained that there was a factual basis to the grounds for detention relating to flight risk in the detention order passed over the applicant.”