Individual Application

The Facts

The applicants Doğan Erbaş and Aysel Güzel are the İstanbul provincial co-chairpersons of Peoples’ Democratic Party (“HDP”), and the other applicants, save for Kasım Oba, are the members of the provincial Executive Board of the same party.

The applicants were detained on remand for their alleged membership of the PKK terrorist organisation by the incumbent magistrate judges within the scope of an investigation conducted by the chief public prosecutor’s office. The challenge to their detention was dismissed. Thereupon, the applicants lodged an individual application.

The criminal proceedings conducted against them for their membership of the said terrorist organisation has been still pending before the incumbent assize court by the examination date of this individual application.

The Applicants’ Allegations

The applicants maintained that their right to personal liberty and security had been violated, stating that their detention had been unlawful.

The Court’s Assessment

As set forth in Article 19 § 3 of the Constitution, a person may be detained on remand only when there is a strong indication of his criminal guilt. In other words, the pre-requisite for detention is the existence of strong indication of criminal guilt on the part of the given person. In this sense, the criminal charge must be supported with plausible evidence that may be regarded as strong.

In the document titled “report on personal concentration (bireysel yoğunlaşma raporu)”, which was seized during the search at the HDP’s İstanbul provincial premises and stated to be addressed to the central committee of the PKK terrorist organisation, there were certain expressions indicating that the applicant Kasım Oba was within the hierarchal structure of the said terrorist organisation and had been conducting activities on its behalf. There were also witness statements to the effect that the applicant used a codename as a terrorist organisation member and was engaging in activities on behalf of that organisation.  

The investigation authorities found out that the applicant Ali İpekli had shared, via his social media account, photos of members of the PKK terrorist organisation armed with weapons and a photo of an organisation member killed during an armed conflict with security officers, along with expressions glorifying and embracing these persons. According to the Constitutional Court, the share of photos of terrorist organisation members armed with long barrelled weapons via a social media account may be classified as an act of praising or inciting violence.

As regards the applicant Doğan Erbaş, revealed to have attended certain events that turned into the propaganda of the PKK terrorist organisation, he expressed -regarding Lice, one of the places where terrorist attacks and conflicts were intensively taking place within the scope of trench events- during his speech in one of these events that “Lice will go on achieving victory by resisting”. These expressions may be regarded as the embracement, or at least the praise, of the violent acts performed by PKK. Besides, it should be also taken into consideration that the applicant’s post via his social media account, which included photos of certain persons among the outstanding members of the organisation, along with a comment “We remember with respect and gratitude the Symbols of Great Spirit of Independence and Resistance”, may be considered to constitute the dissemination of propaganda of the said terrorist organisation.

Therefore, the Court has concluded that as regards the applicants Kasım Oba, Ali İpekli and Doğan Erbaş, there were strong indications of having committed an offence; that there were grounds justifying their detentions; and that their detention was a proportionate measure in the particular circumstances of the present case.

Consequently, in so far as relevant to the said applicants, the Court has found no violation of the right to personal liberty and security.

As regards the Other Applicants

The acts of attending certain events and demonstrations, which were among the elements forming a basis for the criminal charges against the applicants and some of which had been held during an organisation of the said political party, were not regarded as a strong indication of criminal guilt, since no activities praising, embracing terrorism or inciting violence had been performed during these events. In the same vein, the applicants’ possession of books or journals which were prohibited or written by heads of the terrorist organisation or of the nature making propaganda of the organisation was not considered as an organisational activity, as there were no findings that these books or journals had been delivered to any other persons, used as a means for propaganda or disseminated. It has been considered that although the posts of certain applicants via their social media accounts were an indication of their sympathy towards the organisation, they were not of the nature inciting, praising or embracing violence or terrorism. Besides, nor could it be demonstrated that the report and documents with certain notes and voucher numbers on them, which had been seized during the search, were regarding an organisational activity. Accordingly, the investigation authorities had failed to sufficiently demonstrate the strong indication of criminal guilt on the part of the applicants Muhittin Arslanboğa, Ramazan Çetinçakmak, Mehmet Tayyip Arslan, Süleyman Başer, Aysel Güzel, Feremez Erkan, Ayşe Karadağ and Süleyman Özcan.

Consequently, in so far as relevant to the abovementioned applicants, the Court has found a violation of the right to personal liberty and security.