Individual Application

The Facts

The applicant’s husband, holding office as a teacher, was dismissed from public office through a Decree-law issued during the state of emergency. Thereupon, he embarked on a sit-down strike and subsequently a hunger strike before the Human Rights Monument on Yüksel Street in Ankara, together with his friend who had been also dismissed from public office. An investigation was initiated into these protests by the applicant’s husband and his friend for their alleged membership of a terrorist organisation, namely the DHKP/C, and they were accordingly detained on remand. 

The applicant, who was also a teacher, was dismissed from public office through another Decree-law issued within the same period. She participated in her husband’s sit-down strike when the latter went on a hunger strike and then embarked on a hunger strike after her husband had been detained. Thereafter, an investigation was initiated against her, in connection with the impugned acts, for her alleged membership of the DHKP/C and dissemination of terrorist propaganda. The applicant was then granted, by the incumbent magistrate judge, a conditional bail requiring her not to leave residence (house arrest).

At the end of the criminal proceedings conducted against her for the very same offences, the incumbent court granted a conditional bail requiring the applicant to report to the police station for signature, lifting the former measure entailing the requirement not to leave residence.

The Applicant’s Allegations

The applicant maintained that her right to personal liberty and security had been violated, stating that the measure entailing the obligation not to leave residence, which had been imposed on her, lacked legal basis.  

The Court’s Assessment

The Court examined, in the first place, whether the measure entailing the obligation not to leave residence had constituted an interference with the right to personal liberty and security.   

In the Court’s view, in ascertaining whether a measure imposing a restriction on the individuals’ freedom of physical mobility has constituted an interference either with the right to personal liberty and security safeguarded by Article 19 of the Constitution or with the freedom of movement enshrined in Article 23 thereof, what is of importance is not the nature or essence of the restriction; but rather the extent and intensity of the given restriction should be taken into consideration. In determining the extent and intensity thereof, factors such as the type and duration of the imposed measure, the way how it is applied and the extent of the disruption caused by the measure to daily life are of importance.

In this sense, the obligation not to leave residence is a measure of conditional bail, which delimits the individual’s physical freedom merely to the inside of the domicile he resides, which may be executed by way of electronic ankle bracelet, and which is applied uninterruptedly until being lifted and which, in case of any breach, may lead to the detention of the suspect or the accused person. Having regard to the nature, the way of its application and features of the impugned measure, the Court has concluded that given their respective effects, such a restriction on the freedom of physical mobility has more unfavourable results than any restriction on the freedom of movement; and that it therefore constituted an interference with the right to personal liberty and security.

The Court has, in the second place, found it necessary to make an assessment pursuant to the requirements of being prescribed by law, being based on the existence of a strong indication of criminal guilt, relying on one or more of the justified reasons provided in the relevant provisions of the Constitution and not being in breach of the principle of proportionality in deciding on the lawfulness of the measure entailing the obligation not to leave residence, one of the measures envisaged, as an alternative to detention, in Article 109 of the Code of Criminal Procedure.  

In this respect, given the particular circumstances of the present case, it appears that the accusations leading to the application of the impugned measure are mainly the sit-down strike before the Human Rights Monument and subsequent hunger strike. The investigation authorities asserted that these acts had been indeed performed, in line with the instructions and orders of the DHKP/C terrorist organisation, for the purposes of achieving the aims of the organisation and disseminating its propaganda. In this sense, the investigation authorities referred to the activities performed by the formations considered to be in connection with the DHKP/C, the embracement of the impugned acts by the media outlets owned by this terrorist organisation, the release of the relevant explanations and messages through a journal, an online TV channel and social media accounts, as well as to the banners held during certain demonstrations. They also attracted attention to the posting of certain expressions, which were uttered by the applicant when she was taken into custody, via a social media account considered to be in connection with the said terrorist organisation. 

It is evident that the acts of going on a sit-down or a hunger strike, which may be under certain circumstances regarded as a special aspect of the freedom of expression, should not be considered per se to constitute an offence. However, in case of any findings to the effect that these acts have been performed in relation with terrorism or in case of any conduct, which has praised, legitimised or encouraged the use of the terrorist organisation’s methods involving coercion, violence and threat, such kinds of acts may be then considered to constitute an offence.

In this regard, in the present case, there is no document or finding in the investigation file to demonstrate that the applicant had embarked on sit-down and hunger strikes for an organisational purpose or she had engaged in such acts as a stance in favour of the terrorist organisation. Nor did the investigation authorities explain how the applicant had been involved in the release of the broadcasts and expressions relied on as a ground for the charges against her.

The applicant noted that she had gone on a sit-down strike due to both her and her husband’s dismissal from public office; that she had participated in these acts mainly for providing support for her husband; that she had preferred to do so as a way to claim their rights; and that following her husband’s detention, she had embarked on a hunger-strike. In the assessment of the applicant’s acts in the particular circumstances of the present case, the chain of events indicated in the applicant’s statement and referred to by the investigation authorities should not be disregarded. In this framework, also according to the findings reached by the investigation authorities, the applicant participated in the sit-down strike subsequent to the hunger strike of her husband and went on a hunger strike after her husband had been detained on remand.

Besides, the expressions uttered by the applicant when she was taken into custody, “I was taken into custody for my being on a hunger strike; I was taken into custody when I was walking on the street. I would not give in to these pressures. I would continue to resist”, cannot be said, by their very nature, to have legitimised or praised violence, terrorism or insurrection. Nor was it explained in the investigation documents how the applicant had a responsibility that her words were cited on a social media account stated to be in relation with the DHKP/C.

Consequently, the Court has concluded, on the basis of the documents before it, that the applicant was subjected to the measure entailing the obligation not to leave residence in the absence of strong indication of guilt and accordingly found a violation of the right to personal liberty and security safeguarded by Article 19 of the Constitution.