CYIL vol. 13 (2022)

ARMEN HARUTYUNYAN CYIL 13 ȍ2022Ȏ it took place during the active period of the registration process for the referendum. In this process, Mr Jafarov’s activist group said that it would campaign against the amendments to the Constitution. He had been released after his group said that it would not participate in the campaign which was after the arrest of some of its members. The Court also noted that the arrest and detention not only affected the applicant and other activists, but also the very essence of democracy. In Ibrahimov and Mammadov v. Azerbaijan , 82 the applicants who are the members of Nida civic movement were arrested after they painted graffiti with anti-governmental slogans on the statute of the former president of Azerbaijan, as well as spread the photographs thereof on social media. In this case, the Court found a violation of Article 18 in conjunction with Article 5, taking into consideration the general country context, similar backlashes on civil society members. Applying the Predominant Purpose Test (Selahattin Demirtaş v. Turkey (No. 2)) The last episode of Article 18 cases was delivered by the Court on 22 December 2020 – Selahattin Demirtaş v. Turkey (No. 2). 83 It concerned the chairman of a pro-Kurdish leftwing political party and member of the Turkish parliament until 2018, who after a constitutional amendment regarding the rules of parliamentary immunity in 2016 was arrested along with other members of his party on suspicion of leadership of an illegal organization and ties with terrorism. In this most recent case of Selahattin Demirtas v. Turkey (no 2), 84 the Court reiterated that the general principles concerning the interpretation and application of Article 18 were established in Merabishvili and confirmed in Navalnyy cases. Of particular relevance are 287– 291 paragraphs of Merabishvili v. Georgia case. It further specified that when establishing the burden of proof for Article 18 assessments, the Court relies on Merabishvili case, and in particular it notes: “317. It must however be emphasised that circumstantial evidence in this context means information about the primary facts, or contextual facts or sequences of events which can form the basis for inferences about the primary facts … Reports or statements by international observers, non-governmental organisations or the media, or the decisions of other national or international courts are often taken into account to, in particular, shed light on the facts, or to corroborate findings made by the Court …” The ECtHR found that the pre-trial detention of the applicant was not based on a ‘reasonable suspicion’ within the meaning of Article 5(1c) of the Convention. Therefore, based on Navalnyy case, the Court went on to assess whether Article 18 has been violated. In its examination, the Court took into account the general political context and prosecutions of opposition figures in Turkey, as well as the opinions of international committees on the 82 Ibrahimov and Mammadov v. Azerbaijan , Merits and Just Satisfaction, Judgment of 13 February 2020, Appl. Nos. 63571/16 and 5 others. 83 Selahattin Demirtaş v. Turkey (No. 2) , Merits and Just Satisfaction, Judgment of 22 December 2020, Appl. No. 14305/17. 84 Selahattin Demirtas v. Turkey (No. 2) , Merits and Just Satisfaction, Judgment of 22 December 2020, Appl. No 14305/17.

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