Closure case | HDP submits defense to Constitutional Court

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The Peoples' Democratic Party (HDP) Law Commission held a press conference about the preliminary defense submitted to the Constitutional Court as part of the closure case on Friday (November 5).

The conference held on November 6 was attended by HDP Vice Co-Chair responsible for Law and Human Rights Commission Ümit Dede, Law Commission member - lawyer Maviş Aydın, Party Assembly member - lawyer Doğan Erbaş and HDP MP - legist Mehmet Rüştü Tiryaki.

Lawyer Maviş Aydın indicated that they, as the HDP, submitted a 173-page defense, except for its addendums, to the Constitutional Court.

Aydın extended her thanks to all lawyers and academics of law who worked together with the HDP in preparing the preliminary defense.

CLICK - Constitutional Court accepts indictment seeking HDP's closure

The first indictment to close the HDP was returned by the Constitutional Court to the Chief Public Prosecutor's Office of the Court of Cassation on the anniversary of the last local elections on March 31. The reason for returning the indictment was that "it did not have legal characteristics."

With minor changes, the second indictment seeking the closure of the party was submitted to the top court on June 7 and having examined the indictment in the light of a report prepared by the rapporteur of the case, the Constitutional Court accepted the second indictment on June 21.

'Political ban for 451 people'

Taking the floor at the press conference, Ümit Dede recalled that 451 people face political bans: "Their remarks and actions have been cited as evidence for closing the party; even though there is no request for a political ban on 69 people, the party is held accountable for them."

Noting that the conditions for closing a political party are indicated in the Constitution of Turkey as well as in the Law on Political Parties, Ümit Dede underlined that the Constitutional Court must first inspect whether these provisions are in compliance with the Constitution.

According to Dede, Article 82 of the Constitution (on "activities incompatible with membership") is "a problematic article and it was cited as the legal ground for closing several political parties before."

Referring to İrfan Fidan, who has most recently elected as a member of the Constitutional Court, Ümit Dede said:

"Several statements of defense for which he was responsible as the İstanbul Chief Public Prosecutor and Deputy Public Prosecutor have been added to the indictment and cited as a reason for closure.

"In the legal regulations, it is a reason for recusal: If a judge carried out an investigation during the investigation, he or she shall not partake in the ensuing trial. It is a mandatory rule. This has happened in this trial. İrfan Fidan's participation in the trial is legally impossible. The Constitutional Court must primarily give a decision about this issue."

'Investigations cannot be evidence'

Ümit Dede also recalled that the allegations about the 451 people facing a political ban as per the indictment is pertaining to ongoing trials; some of them are pending before the Constitutional Court.

Accordingly, Dede stressed that in the event of a closure or political ban, it will mean that the Constitutional Court has already handed down a ruling about the individual applications that it will examine. "Legally speaking, it is called comments reflecting bias," Dede noted.

Dede reiterated that the "investigations and prosecutions against the 451 people cannot be considered evidence in the closure case."

"On the contrary, it will mean comments reflecting bias and constitute a contrariness to the principle of judicial independence and impartiality," Dede said, calling on the top court to consider these points.

'Appeal as to the procedure'

According to Ümit Dede, not all allegations in the indictment have been responded to in these stages of the trial: "Following the investigation, the Chief Public Prosecutor's Office of the Court of Cassation will give its opinion as to the accusations and we will submit our defense. We have adjourned answering the allegations one by one for the second stage."

Referring to the HDP's "appeals as to the procedure and points that are to be primarily discussed," Dede said, "At this stage, we think that this case should be dismissed without waiting for the prosecutor's opinion."

Sharing further details about the HDP's preliminary defense, Ümit Dede stated, "We have considered the place and significance of political parties in the light of Constitutional Court and ECtHR rulings."

'It is a reason for dismissing the case'

As underlined by HDP's Dede, the major point based on which the party's closure is requested is "the efforts made for a peaceful resolution of the Kurdish question." Dede stressed that "the HDP's efforts during and after the resolution process must not be a subject matter in a trial."

He noted that "the law no. 6551 enacted about this issue is an obstacle to this and the right to peace, which has been guaranteed by international conventions, shall never be a subject matter of a trial."

Recalling that the Constitutional Court returned the first indictment seeking the HDP's closure, Ümit Dede said:

"When we examine the second indictment, we see that the reasons for returning the first have not been eliminated. The reasons for returning the indictment also require the immediate dismissal of the case."

Dede also stated that they presented the ECtHR ruling on Democratic Society Party (DTP) to the Constitutional Court.

In its ruling dated 2016, the European Court of Human Rights (ECtHR) convicted Turkey over the closure of the DTP.

Recalling that the top court rejected the request for the ruling Justice and Development Party (AKP) and it has not closed any political party since then, Dede said, "We think that a ruling of closure will not be the case for the HDP, either. The trial of the HDP must be stopped based on the points that we have indicated in the defense without waiting for the prosecutor's opinion as to the accusations. We still believe that the Constitutional Court will give such a ruling." (RT/SD)