No Violation Of The Right To Personal Liberty And Security Due To The Lawfulness Of The Arrest
Events
The applicants, one of whom is an academic and the other a teacher, were dismissed from public office by the State of Emergency Decree after the 15 July coup attempt. The applicants staged a sit-in protest for their reinstatement and then started a hunger strike. Within the scope of the investigation initiated by the Chief Public Prosecutor’s Office, the applicants were detained on 14/3/2017 and later released with judicial control measures. At the end of the investigation, a public lawsuit was filed with the request that the applicants be sentenced for being a member of a terrorist organisation and making propaganda for a terrorist organisation. The Assize Court (Court) decided to accept the indictment and the prosecution phase started.
On the other hand, within the scope of another investigation conducted by the Chief Public Prosecutor’s Office, the applicants were detained on 23/5/2017 following a search at their residence. The Criminal Judgeship of Peace decided to arrest the applicants on charges of membership of a terrorist organisation and opposition to Law No. 2911. A new public case was filed against the applicants. The court decided to consolidate both cases. At the end of the hearing held on 20/10/2017, the Court ruled for the release of the applicant Semih Özakça. After hearing some witnesses during the trial, the Court acquitted Semih Özakça, sentenced Nuriye Gülmen to 6 years and 3 months imprisonment and ordered the release of the applicants. An appeal was lodged against the judgement. The case is pending before the Court of Cassation as of the date of examination of the individual application.
Allegations
The applicants claimed that their right to personal liberty and security was violated due to their arrest, detention and arrest warrant based on the evidence that could be subject to the same accusation within the scope of another investigation, although they complied with the judicial control measure within the scope of an ongoing investigation.
The Court’s Assessment
In the concrete case, two separate investigations were conducted against the applicants. It is understood that the applicants were arrested and detained within the scope of a new investigation initiated before the indictment issued within the scope of the first investigation was accepted and that they were arrested on charges of membership of a terrorist organisation and opposition to Law No. 2911. On the other hand, the indictment issued at the end of the first investigation was accepted on the same date. The Court decided to consolidate the cases, which it stated that there was a legal connection between them, with the final judgement.
In the concrete case; the fact that the applicants chanted slogans identified with the terrorist organisation during the protests, that their actions were embraced by the organisations stated to be in contact with the organisation on websites and social media supporting the organisation, that they called for support for the protests, that they shared the messages of the said organisations in contact with the terrorist organisation and the intensity of these actions were evaluated together with the detailed statements of the witnesses that the applicants acted on the instructions of the terrorist organisation. In this context, the acceptance by the investigation authorities of the aforementioned matters as strong indications that the applicants committed a crime linked to a terrorist organisation in the context of the legality of the detention is not arbitrary and unfounded.
On the other hand, the applicants argued that the accusations against them within the scope of the detention subject to the application were subject to a previous case and that it was unlawful to initiate a new investigation against them for the same actions and to apply an arrest measure.
In both investigations, the accusation brought against the applicants and made the subject of arrest was that they were members of a terrorist organisation. In this context, when the second indictment issued by the Chief Public Prosecutor’s Office is examined, it is seen that the applicants’ acts committed after the date of the first indictment are the subject of the accusation. İn this respect, the grounds for both accusations are different. Considering the aforementioned facts and the case-law of the Court of Cassation, it is not arbitrary and unfounded to charge the applicants with a new offence.
While deciding to arrest the applicants, the criminal judgeships of peace relied on the nature of the alleged offence of membership of a terrorist organisation, the severity of the sanction stipulated in the law, the suspicion of evidence tampering and flight, the fact that it was among the catalogue crimes and that judicial control measures would be insufficient. Therefore, the grounds for the applicants’ arrest, which are based on suspicion of tampering with evidence and flight, have a factual basis.
It cannot be said that it is arbitrary and baseless for the criminal judgeships of peace to conclude that the arrest measure applied to the applicants is proportionate and that judicial control measures would be insufficient, taking into account the gravity of the sanction foreseen for the alleged offence, the nature and importance of the work.
For the reasons explained above, the Constitutional Court concluded that the right to personal liberty and security was not violated.
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