Individual Application

The Facts

The applicants N.E. and A.S., who served as public prosecutors, and Halit İnciroğlu, who served as a judge, were dismissed from office in accordance with the decisions of the Plenary of the Council of Judges and Prosecutors (CJP) on the ground that they had a relation or connection with the Fetullahist Terrorist Organisation/Parallel State Structure (FETÖ/PDY). The applicants’ subsequent requests for review of these dismissal decisions were rejected by the CJP.

The applicants brought actions before the Fifth Chamber of the Council of State (Chamber), seeking the annulment of the CJP’s decisions, which were dismissed by the Chamber. The applicant’s subsequent appeals before the Plenary Session of the Chambers for Administrative Cases of the Council of State were dismissed on the grounds that the Chamber’s decisions complied with the procedure and the law.

The Applicants’ Allegations

The applicants maintained that their dismissal from office on account of their alleged relation or connection with the FETÖ/PDY, which had been found to act against national security, violated their right to respect for private life. They also complained that the length of the administrative proceedings had breached their right to a trial within a reasonable time. The applicant Halit İnciroğlu further argued that his presumption of innocence had been violated.

The Court’s Assessment

1. As regards the Applicants A.S. and N.E.

The determination of whether any members of the judiciary, one of the three pillars of the state, have relations or connections with the FETÖ/PDY, the dismissal of those found to have such ties, and their prohibition from holding public office are among the measures suitable and necessary for eliminating the immediate threat which led to the declaration of a state of emergency.

As a matter of fact, in its decision rendered shortly after the coup attempt, the Court held that since the Republic of Türkiye faced such an attempt that endangered its national security and targeted the democratic state of law enshrined in Article 2 of the Constitution, the adoption by the state of certain additional and extraordinary measures against public officials considered to have relation or connection with the terrorist organizations behind the coup attempt and to pose a threat to national security, the implementation of reforms regarding the execution of public services, as well as the implementation of certain regulations to this end were considered to be based on reasonable grounds (see the Court’s decision no. E.2016/6 (Misc.), K.2016/12, 4 August 2016).

Given the essential role of judges and public prosecutors within the judicial system and the privileged public powers entrusted to them to be exercised independently and impartially on behalf of the Turkish nation, members of the judiciary are expected to perform their duties with absolute loyalty to the democratic constitutional order. This obligation of loyalty implies not being subject to any hierarchy outside the democratic state of law during the performance of their duties, and it also justifies the imposition of certain restrictions on their fundamental rights and freedoms beyond those applicable to ordinary citizens.

The Court has first underlined that the actions for annulment concerning the lawfulness of measures adopted during the state of emergency to eliminate the threat giving rise to it differ from criminal proceedings, and that in the present applications, it will consider whether the necessity of the impugned measure was addressed in a relevant and convincing manner.

The impugned measures were based on the assessment that the applicants, members of the judiciary, had relation or connection with the FETÖ/PDY, which was recognised as an organisation engaging in activities against national security, and that consequently their loyalty to the democratic constitutional order was undermined. The Court has consistently emphasised in its previous judgments that the existence of any relation or connection with the FETÖ/PDY is an indication of the fact that one’s loyalty to the democratic constitutional order has been weakened or lost. At this point, in determining whether the impugned measure was arbitrary or disproportionate, it must be examined whether the administrative and judicial authorities relied on serious and objective grounds indicating the existence of the applicant’s such relation or connection with the said organisation. In the present cases, the relevant authorities concluded that the applicants had used the ByLock application for the purpose of establishing organisational communication within the scope of the activities of the FETÖ/PDY, which therefore indicated the existence of their relation and connection with the aforementioned terrorist organisation.

The Court has underlined that, given its complex structure and international nature, it was imperative to conduct certain intelligence operations regarding the FETÖ/PDY before the coup attempt, and that the use of the ByLock data, which was obtained during the intelligence operations conducted against such a terrorist organisation aiming to overthrow the constitutional order, in the course of the investigations and judicial proceedings conducted against the said organisation to establish the material truth did not involve any unlawfulness (see Ferhat Kara [Plenary], no. 2018/15231, 4 June 2020; and Bestami Eroğlu [Plenary], no. 2018/23077, 17 September 2020).

As noted by the Court, the ByLock data played a crucial role in identifying the activities and members of the FETÖ/PDY, and many of the organization’s leaders or members were identified through the analysis of this data. Indeed, the European Court of Human Rights also stated in its judgment in the case of Yalçınkaya v. Türkiye that the ByLock application was not just any ordinary commercial messaging tool and that its use could prima facie suggest a connection with the FETÖ/PDY. Accordingly, it should be noted that obtaining the ByLock data through intelligence methods and relying on such data to determine whether public officials had lost their constitutional loyalty can be regarded as a necessary measure for safeguarding the democratic order during the state of emergency. In other words, the established use of the ByLock application in itself constitutes sufficient and convincing evidence that an individual lost his loyalty to the constitutional order, and therefore the dismissal from office constituted a measure strictly required by the exigencies of the situation within the meaning of Article 15 of the Constitution. Consequently, once the use of ByLock has been clearly established, it is not required to assess additional evidence to determine whether the measure was proportionate.

The judicial authorities, providing relevant and convincing reasoning, concluded that the applicants who were found to have used the ByLock application had relations and connections with the FETÖ/PDY, the perpetrator of the coup attempt, and that, as a result, their loyalty to the constitutional order had been undermined. This conclusion is compatible with the imposition of such a measure strictly required by the exigencies of the situation.

The reasons provided for establishing that the applicant had used the ByLock application, which has been deemed sufficient to indicate a relation or connection with the FETÖ/PDY, the perpetrator of the coup attempt, were found to be relevant and convincing. In the particular circumstances of the case, the measure imposed was considered suitable to eliminate the threat or danger that led to the declaration of the state of emergency, necessary for achieving that purpose, proportionate to the legitimate aim pursued, and did not include any arbitrariness. Therefore, it has been concluded that the impugned measure taken during the state of emergency was proportionate to the circumstances of the case.

Consequently, the Court has held that the interference with the right to respect for private life, safeguarded under Article 20 of the Constitution, complied with the criteria set forth in Article 15 of the Constitution, which regulates the suspension and restriction of the exercise of fundamental rights and freedoms during a state of emergency, and therefore found no violation of the right to respect for private life.

2. As regards the Applicant Halit İnciroğlu

In the present case, at the end of the proceedings concerning the applicant’s dismissal from office, the trial court dismissed the case, relying on the statement of witness S.K. regarding the applicant and the fact that the applicant had been appointed as an inspector at the CJP during a period when the FETÖ/PDY had a considerable influence within the judiciary. In other words, the judicial authorities, on the basis of these two factors, concluded that the applicant had relations and connections with the FETÖ/PDY and thus he acted in breach of his obligation of loyalty to the democratic constitutional order.

It is essential that the reasoning put forward to establish an individual’s relation and connection with the organisation demonstrates that the relevant facts, circumstances, and substantive allegations, along with the evidence both for and against the individual, have been assessed in a comprehensive and coherent manner. This requirement stems from the fact that the concepts of relation and connection can be substantiated through a personal profile based on concrete elements.

As a matter of fact, in several of its judgments, the Council of State has held that witness statements relying solely on personal opinions and presumptions, without any concrete basis, cannot be considered sufficient to establish an individual’s relation or connection with the FETÖ/PDY. Likewise, according to the Council of State, the mere allegation that an individual was appointed to a high-ranking position, during a period when the FETÖ/PDY was active, for the purpose of achieving the organization’s objectives and strategies, in the absence of supporting evidence, cannot be considered sufficient to establish such a relation or connection.

In the present case, two sitting judges gave statements during the criminal proceedings against the applicant, who clearly indicated that they did not believe the applicant had any relation or connection with the FETÖ/PDY. Nevertheless, the judicial authorities failed to consider these statements specified in the assize court’s decision and did not address the applicant’s allegations that these statements contradicted the accusations raised against him. The authorities also did not afford due consideration to the counter-arguments and defences put forward. However, a review of the statement of witness S.K., which was decisive in the case, revealed that he did not refer to any specific act or concrete fact demonstrating the applicant’s relation or connection with the FETÖ/PDY, and that his statement primarily consisted of personal impressions and subjective evaluations. Furthermore, the finding that the applicant had been appointed as an inspector at the CJP, during the period when the FETÖ/PDY was active, for the purpose of achieving the organisation’s objectives was not supported by any additional evidence. Therefore, this presumption per se cannot be regarded as a serious and objective reason to establish the applicant’s relation or connection with the organisation.

For these reasons, the administrative and judicial authorities failed to provide relevant and convincing reasons to demonstrate that the applicant had relation or connection with the FETÖ/PDY, the perpetrator of the coup attempt, or that the applicant thereby ceased to be loyal to the constitutional order. Accordingly, the interference with the applicant’s right to respect for private life due to his dismissal from office did not constitute a measure strictly required by the exigencies of the situation during the state of emergency.

Consequently, the Court has held that the interference with the right to respect for private life, safeguarded under Article 20 of the Constitution, did not comply with the criteria set forth in Article 15 of the Constitution, which regulates the suspension and restriction of the exercise of fundamental rights and freedoms during a state of emergency, and therefore found a violation of the right to respect for private life.