Individual Application

The Facts 

At the end of the investigation conducted by the chief public prosecutor’s office into the events known as 17-25 December operations, the applicant, who was a journalist and author, was detained on the basis of strong suspicion that he had knowingly and willingly aided the FETÖ/PDY armed terrorist organisation, in relation to certain publications in Karşı daily newspaper as well as obtaining information for these publications. The applicant was elected as an MP from the Republican People's Party (CHP) in the 25^th and 26^th term parliamentary elections.

The assize court released the applicant pending trial. Upon appeal by the chief public prosecutor’s office, the applicant was again detained by the assize court. At the end of the proceedings, the applicant was sentenced to 4 years and 2 months’ imprisonment for knowingly and willingly aiding an armed terrorist organisation, despite not being within the hierarchy of the organisation. The assize court ordered the continuation of the applicant's detention, taking into account the total sentence imposed on him. The applicant's subsequent appeal was dismissed by the assize court with final effect.

Besides, the applicant appealed the conviction decision. The regional court of appeal, having dismissed the appeals on the merits, released the applicant.

The Applicant’s Allegations

The applicant claimed that his right to personal liberty and security had been violated, stating that he had ben detained unlawfully in the absence of strong suspicion of guilt and that the risk of his fleeing, which constituted the ground for his detention, had not been justified.

The Court’s Assessment

It should be determined whether detention, as an interference with the right to personal liberty and security, complied with the principles –set forth in Article 13 of the Constitution and applicable to detention measure– such as being prescribed by law, being based on one or more of the justified reasons specified in the relevant articles of the Constitution, and not being contrary to the principle of proportionality.

Pursuant to Article 19 of the Constitution, an individual may only be detained on the ground that there is a strong indication of his guilt.

According to the assessments of the investigation authorities and the judicial authorities, the 17-25 December operations had been organised by the members of the judiciary and the law enforcement officers, who were members of the FETÖ/PDY, in an attempt to overthrow the Government in accordance with the purposes of the said organisation. The Court has rendered many judgments acknowledging the lawfulness of the detention of some police officers who had taken part in these investigation processes and of the members of the judiciary who had ordered their release.

It has been observed, on the basis of the motion, bill of indictment, detention order and conviction decision issued against the applicant, that the accusations against him were mainly based on the facts related to certain publications on Karşı newspaper and to the manner in which the relevant information and documents were obtained. Considering the news published in the newspaper and the relevant assessments made by the investigation authorities and judicial authorities, it is neither unfounded nor arbitrary to consider that all these facts refer to the strong indication of guilt on the part of the applicant.

Besides, ordering the applicant’s detention, the assize court relied on the risk of his fleeing. The detention order included no other grounds. According to the case file regarding the applicant, during the investigation launched against him in 2014, the investigation authorities did not find it necessary to order the applicant’s detention or to apply any other measure against him.

Upon his not being nominated as an MP candidate in the 27^th term parliamentary elections, the applicant announced on his social media account that he would continue to support his party in the election campaigns and stated "The first destination is Maraş!". The applicant stated that the impugned statement was related to the election campaigns and that he had been assigned by his party in Kahramanmaraş as part of the election process.

The incumbent chief public prosecutor’s office, in its letter sent to the assize court, requesting that an arrest warrant would be issued against the applicant, specified that since he had not been nominated as an MP again, he was trying to go abroad in order to avoid the proceedings pending against him. The prosecutor’s office also stressed that the security units had received a notification by e-mail that the applicant would flee abroad after the election.

It has been understood that the applicant, being unaware of the international travel ban imposed on him, arrived at the airport together with his family in order to go to Germany on the date when the decision was issued against him, but could not leave the country due to the aforementioned measure. The applicant cannot be said to have failed to comply with the conditional bail measures imposed on him, since he had not been aware of the international travel ban. Moreover, it is unreasonable to assume that someone who was aware of the international travel ban imposed on him would attempt to go abroad from the airport.

In addition, although it was claimed on the basis of the e-mail notification received by the security units that there was a concrete suspicion that the applicant would go abroad illegally, such a notification, the sender and the basis of which are unknown, cannot be regarded as a fact constituting a strong suspicion. Nor was there an indication that the applicant had made such a plan or attempt. Besides, the applicant stated that in the course of the investigation and prosecution processes against him, he had travelled abroad dozens of times.

Therefore, the statements included in the decisions on the applicant’s detention and in other documents cannot be said to prove that there had been a risk of the applicant’s fleeing on the basis of concrete facts. In addition, it has been observed that the applicant had had no behaviour that would cause the public authorities to have a suspicion that the applicant would flee abroad illegally.

Besides, the applicant was detained approximately two years after the constitutional amendment, which introduced an exception to the legislative immunity, and at the prosecution phase. During the investigation launched in 2014, it was not deemed necessary by the investigation authorities to detain, or apply any other measure against, the applicant until 7 June 2015, when he was elected as an MP for the first time. No new facts other than the evidence collected at the investigation stage were relied on to substantiate the applicant’s detention. Moreover, the applicant was detained about one month after his denial to travel to Germany and his having had to return from the airport due to the international travel ban imposed on him.

As a result, the applicant’s detention was not found necessary, and thus not proportionate in the circumstances of the case.

Consequently, the Court has found a violation of the right to personal liberty and security safeguarded by Article 19 of the Constitution.