Individual Application

The Facts

The applicants, who were an academic and a teacher at the relevant time, were dismissed from public office under the relevant state of emergency decree-law following the coup attempt of 15 July. Staging a sit-in protest for reinstatement to their previous posts, the applicants then embarked on a hunger strike. The applicants taken into custody on 14 March 2017 within the scope of an investigation initiated by the incumbent chief public prosecutor’s office were released on probation. At the end of the investigation, the applicants were indicted for being a member of a terrorist organisation and disseminating its propaganda. Upon the acceptance of the indictment, a criminal case was filed against them before the incumbent assize court.

On the other hand, the applicants were taken into custody on 23 May 2017 after a search at their homes, within the scope of another investigation conducted by the chief public prosecutor’s office. The magistrate judge ordered their detention for being a member of a terrorist organisation and contravening Law no. 2911. A new criminal case was filed against the applicants. The assize court then decided to join these two criminal cases. At the end of the hearing of 20 October 2017, the assize court released Semih Özakça. Having heard certain witnesses during the proceedings, the assize court ultimately acquitted Semih Özakça and sentenced Nuriye Gülmen to 6 years and 3 months’ imprisonment but also ordered the latter’s release. The applicants appealed the first instance decision. The appellate examination of their case was still pending before the Court of Cassation by the examination date of this individual application.

The Applicants’ Allegations

The applicants claimed that although they had complied with the measure of probation applied within the scope of a pending investigation, they had been taken into custody and detained, within the scope of another investigation, based on the evidence that might be basis of the same criminal charge, which was in breach of their right to personal liberty and security.   

The Court’s Assessment

In the present case, two separate investigations were conducted against the applicants. It appears that before the assize court accepted the indictment issued with respect to the applicants within the scope of the first investigation, the latter had been arrested and taken into custody within the scope of another investigation and subsequently detained on remand for being a member of a terrorist organisation and contravening Law no. 2911. On the other hand, the indictment issued at the end of the first investigation was also accepted on the very same date. Considering the legal interrelation between the cases, the assize court decided to join them.

In the present case, the considerations that the applicants had chanted slogans peculiar to the relevant terrorist organisation, that the activities performed by them had been supported by the formations -stated to have a link with the said organisation- on the web-sites and social media accounts that were followers of the organisation, that calls in support of their acts had been made, that the applicants had shared the messages of the formations having relation with the terrorist organisation, and that their acts had been of an intensive nature were taken into consideration in conjunction with the elaborated witness statements to the effect that the applicant had acted in line with the instructions of the said terrorist organisation. In this sense, it was neither arbitrary nor unfounded for the investigation authorities to consider the aforementioned issues as a strong indication of the applicants’ guilt in relation to a terrorist organisation, within the context of lawfulness of their detention.

On the other hand, the applicants maintained that the criminal charges underlying their impugned detention had been subject of a case that had been previously filed against them, and that the initiation of a new investigation against them and their subsequent detention ordered on the basis of the same acts had been unlawful.

The criminal charges underlying the applicants’ detention in both investigations are their alleged membership of a terrorist organisation. In this sense, it is inferred from the second indictment issued by the chief public prosecutor’s office that the acts imputed to the applicants are those they had performed after the date on which the first indictment was issued. Therefore, it is evident that these two charges are based on different grounds. In consideration of these facts and the relevant case-law of the Court of Cassation, it has been concluded that bringing a new charge against the applicants was neither arbitrary nor unfounded.

In ordering the applicants’ detention, the magistrate judges relied on the nature of the offence of membership of a terrorist organisation, allegedly committed by the applicants, the gravity of the sanction prescribed in the law, the risk of their obfuscating the evidence and fleeing, the nature of the imputed act as a catalogue offence and the insufficiency of the measures of probation. Accordingly, the applicants’ detention due to the risks of obfuscating the evidence and fleeing had factual basis.

The Court has considered that it was neither arbitrary nor unfounded for the magistrate judges to conclude that the detention was proportionate and the measure of probation would remain insufficient in the applicants’ case given the gravity of the corresponding sanction as well as the nature and severity of the imputed act.

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