Constitutionality Review

    Contested Provision

    In the impugned provision, it is set forth that during the times of emergency, the custody period shall not exceed 7 days as from the time of arrest in terms of certain offences and that however, the public prosecutor shall be entitled to issue a written order for the prolongation of the custody period for a further 7 days given the difficulty in obtaining evidence or excessive number of suspects.

    Grounds for the Requests for Annulment

    In the petition, it is maintained that the custody period of 14 days in total, which is envisaged to be applied during the state of emergency by virtue of the contested provision, has constituted a disproportionate interference with the right to personal liberty and security safeguarded by the Constitution, thereby in breach of Articles 15, 19 and 119 thereof.  

    The Constitutional Court’s Assessment

    Alleged unconstitutionality of the provisions enshrined in the decree-laws issued during the state of emergency may be brought before the Constitutional Court only after these decree-laws are enacted upon being ratified by the Grand National Assembly of Turkey. 

    The circumstances under which persons may be deprived of their liberties on condition that procedure and conditions of such deprivation are prescribed by law are listed in Article 19 of the Constitution securing the right to personal liberty and security. Accordingly, the periods prescribed in the Constitution may be extended during a state of emergency and in time of war. However, such arrangements cannot be in breach of the constitutional safeguards applicable during the state of emergency for the protection of fundamental rights and freedoms.

    It is explicit that the provision, which allows for the prolongation of the custody period in comparison to the ordinary time, intends for the elimination of the threat or danger underlying the state of emergency; and its implementation is limited only to the duration of the state of emergency. Therefore, this provision must undergo a constitutionality review pursuant to Article 15 of the Constitution, which enshrines the safeguards against the restriction of fundamental rights and freedoms during the state of emergency.

    Both in the course and aftermath of the coup attempt of 15 July, notably judicial organs and investigation authorities faced an unpredictably heavy workload. Moreover, just after the coup attempt, a great number of judges and prosecutors were suspended from office and thousands of them were subsequently dismissed from office for being in liaison with the Fetullahist Terrorist Organization/Parallel State Structure (“FETÖ/PDY”).

    Following the suppression of the coup attempt, several investigations were conducted against numerous persons allegedly engaged in the attacks and acts by other terrorist organizations as well as those who were considered to have link with the structure, the perpetrator of the coup attempt.

    Judicial and administrative investigations into the incidents which trigger declaration of state of emergency such as coup attempt may lead the public authorities to encounter severe difficulties. Therefore, extension of powers conferred upon the executive branch, which is in need of taking urgent measures and decisions in the face of such incidents, may become necessary, and arrangements and strict measures, which cannot be in question during ordinary times, may be introduced in order to prevent reoccurrence of incidents underlying the state of emergency, as well.

    Given the extent of the coup attempt, the structure of the FETÖ/PDY, the number of investigations carried out and actions brought within the scope of the measures taken in the aftermath of the coup attempt and especially the fact that many police officers and judicial officers who had been assigned to carry out and supervise the investigations have been dismissed, extension of the custody period to a maximum of 14 days, which is only applicable during the state of emergency for the proper conduct of investigations, constitutes an appropriate and necessary measure.

    While the impugned provision stipulates that the custody period shall be extended to a maximum of 14 days during the state of emergency, this period shall not be applied arbitrarily. The said provision defines the upper limit by prescribing that the custody period shall not exceed 7 days as from the time of arrest. Accordingly, as a rule, this period cannot exceed 7 days. However, in the present case, the custody period was allowed to be extended for a further 7 days given the difficulty in obtaining evidence or excessive number of suspects.

    Undoubtedly, the custody period shall not be extended in cases where there is no difficulty in obtaining evidence or the number of suspects is not excessive. These are maximum periods, and therefore it is clear that in cases where the investigation process is completed within a shorter period given the specific circumstances of the case, then the custody period should be shorter.

    Article 19 of the Constitution provides a constitutional guarantee in terms of custody-related objections. In this scope, Article 91 of Law no. 5271 provides that an individual may file an objection with the magistrate judge against the written order of the public prosecutor on his being taken into custody or extension of the custody period, in order to achieve an immediate release from custody. Thus, an effective remedy is available against custody and extension of custody.

    Article 19 of the Constitution also provides that individuals arrested or detained shall be promptly notified, in all cases in writing, or orally when the former is not possible, of the grounds for their arrest or detention and the charges against them; in cases of offences committed collectively this notification shall be made, at the latest, before the individual is brought before a judge. Thus, it is stipulated that the individuals shall be informed of the offences imputed to them. It is also specified therein that the next of kin shall be notified immediately when a person has been arrested or detained.

    Considering these provisions together, it appears that both the Constitution and Law no. 5271 provide adequate safeguards as to the lawfulness of the custody of an individual. In other words, while there are certain arrangements stipulating that the maximum custody periods prescribed in the Constitution in ordinary times may be exceeded during the state of emergency, certain guarantees have been provided in order to ensure that these periods are applied in a proper and proportionate manner. Thus, there are sufficient safeguards against arbitrariness that goes beyond the purpose of the measures required to be taken in order to eliminate the threat or danger leading to the state of emergency.

    In this respect, the impugned provision which stipulates that the custody period shall not exceed 7 days in terms of certain offences and that it shall be prolonged, under necessary conditions specified in the law, for further 7 days in times of emergency cannot be said to restrict the right to personal liberty and security exceeding the extent required by the exigencies of the situation during the state of emergency.

    Consequently, the Court found the contested provision constitutional and accordingly dismissed the request for annulment.