Violation Of The Right To Personal Liberty And Security Due To Unlawful Detention
Events
The applicant, together with a person named H.B.Y., was arrested by law enforcement officers and detained on the same day on the grounds that he held a banner at the exit of a metro station near the Presidential residence in Istanbul and shouted slogans about the persons named E.T. and A.Ü., who were being investigated/prosecuted in the context of a terrorist organisation, and continued the protest despite the warnings.
The Chief Public Prosecutor’s Office referred the applicant to the 11th Criminal Judge of Peace (Judgeship) for arrest on the charges of membership of an armed terrorist organisation and opposition to the Law on Meetings and Demonstrations No. 2911; the Judgeship decided to arrest the applicant on the charges.
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Applicant objected to the arrest warrant and the 12th Criminal Judgeship of Peace decided to reject the objection definitively. Applicant’s request for release was also rejected by the 2nd Criminal Judgeship of Peace. The appeal against the aforementioned decision was rejected by the 3rd Criminal Judgeship of Peace.
The Chief Public Prosecutor’s Office filed a public case against the applicant at the same place at the same place at the Assize Court with the demand of punishment on the charges of being a member of an armed terrorist organisation, making propaganda for a terrorist organisation and violating Law No. 2911. 29. The 29th Assize Court (the Court) decided to release the applicant at the end of the hearing by applying the judicial control measure of a ban on leaving the country. At the end of the trial, the Court acquitted the applicant of the offences charged and lifted the judicial control measure. The Office of the Chief Public Prosecutor appealed against the acquittal verdict for the offence of opposition to Law No. 2911 and the applicant appealed against the part of the verdict concerning the attorney’s fee.
Allegations
The applicant claimed that his right to personal liberty and security was violated due to the unlawfulness of the detention.
The Court’s Assessment
When the investigation documents concerning the applicant are examined, it is seen that the accusations that form the basis of the arrest measure are based on the applicant’s actions of unfurling banners and shouting slogans. The investigation authorities argued that these actions were carried out in line with the orders and instructions of the terrorist organisation with the aim of serving the aims of the organisation and making propaganda for it.
In this context, the investigating authorities referred to the activities of organisations affiliated with the terrorist organisation and stated that the hunger strike carried out by the persons named E.T. and A.Ü. mentioned on the banner carried by the applicant had ceased to be a way of seeking rights and had turned into an activity serving the aims of the terrorist organisation and that the applicant’s actions in support of these persons were embraced by statements made on social media accounts that were considered to be affiliated with the terrorist organisation.
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It is clear that hunger strikes and sit-in protests, which can be regarded as one of the manifestations of freedom of expression under certain conditions, or actions such as shouting slogans, making press statements, unfurling banners, etc. carried out by third parties in support of these actions, should not be subject to an accusation on their own. However, in the event that there are facts indicating that the execution of the aforementioned actions is a terrorism-related activity, or if during the actions, behaviours are exhibited that praise, legitimise or encourage the terrorist organisation’s methods involving force, violence and threats, it may be possible to consider such activities as a crime.
In this context, the facts relied upon by the investigating authorities that the applicant’s actions subject to the crime and forming the basis of the arrest measure were carried out with the instructions of the terrorist organisation and in line with the aims of this organisation are generally the defence and support of the said actions on some platforms that are considered to be linked to this organisation. On the other hand, the investigation documents do not include any concrete fact or determination that the applicant carried out these actions in an organisational relationship or that this was an organisational attitude on the part of the applicant.
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On the other hand, the applicant stated that she was the aunt of E.T., who had participated in the hunger strike, that she had taken these actions in support of her nephew E.T., that she had chosen this as a way of seeking rights and that she did not have an organisational purpose. Therefore, it has been understood that the investigation authorities have not been able to show concrete facts that the applicant carried out the acts subject to the accusation with the instruction of the organisation or that the applicant has a connection with the said organisation.
In this respect, according to the applicant’s defence and the scope of the file, it has been concluded that the strong indication that a crime has been committed, which is necessary for arrest in the concrete case, has not been sufficiently demonstrated.
For the reasons explained above, the Constitutional Court decided that the right to personal liberty and security was violated.
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