Individual Application

The Facts

The incumbent assize court ordered the applicant not to leave his residence (house arrest) within the scope of the ongoing proceedings, which remained in effect until the final hearing. Ultimately, the applicant was sentenced to imprisonment, and the sentence was upheld on appeal. The applicant requested that the period spent under house arrest be deducted from the prison sentence. The incumbent judge dismissed the applicant’s request and his appeal was also dismissed. Thereupon, the applicant filed an individual application.

Following the individual application, the applicant re-submitted a petition to the incumbent judge, and half of the time the applicant was held under house arrest (45 days) was deducted from his imprisonment time.

The Applicant’s Allegations

The applicant claimed that his right to personal liberty and security had been violated, arguing that his request for deduction of the full period spent under house arrest from his prison sentence had been dismissed.

The Court’s Assessment

With the amendment made to Article 109 of the Code of Criminal Procedure no. 5271 by Law no. 7331, it is stipulated that every two days spent under house arrest shall be counted as one day when deducting from a prison sentence. In the present case, in accordance with the relevant amendment, 45 days —half of the 90 days spent by the applicant under house arrest— were deducted from his sentence. However, the applicant argued that the entire period spent under the house arrest should have been deducted therefrom.

In one of its judgments (Esra Özkan Özakça [Plenary], no. 2017/32052, 8 October 2020), the Court concluded that having regard to the nature and characteristics of the obligation not to leave residence, it falls within the ambit of the right to personal liberty and security rather than the freedom of movement. With reference to the aforementioned judgment, it has been considered that the period spent under the impugned measure restricting the right to personal liberty and security should be deducted from the prison sentence. It should be noted, however, that this requirement does not entail the deduction of the entire period spent under such a measure. Considering the effects and nature of the measure on the individual, different deduction ratio may be determined.

It should be acknowledged that house arrest has a less severe impact on fundamental rights and freedoms than detention (remand in custody) in that while individuals are required to stay at home, there are no restrictions on maintaining their social life with other residents or visitors, nor on using all kinds of individual or mass communication tools. Additionally, in certain circumstances, they may be allowed to leave their residence with permission.

Given that house arrest has a less severe impact on fundamental rights and freedoms than detention, as explained above, it has been concluded that counting two days spent under the impugned measure as one day for deduction purposes constitutes a proportionate approach.

Consequently, the Court has found no violation of the right to personal liberty and security.