May 12, 2015 Official Gazette – Constitutional Court Decision On Detention
From the Presidency of the Constitutional Court:
Application Number
Decision Date
:
FIRST SECTION
DECISION
2013/68
: 11/12/2014
President: Serruh KALELİ
Members Hicabi DURSUN
Erdal TERCAN
Zühtü ARSLAN
Hasan Tahsin GÖKCAN
Rapporteur Hüseyin TURAN
Applicants: 1- Sadun DOĞAN
2- Agit ALPASLAN
Representatives Attorney Ziya FIRAT
I. SUBJECT OF THE APPLICATION
1. The applicants claimed that they had been detained for a long period of time, that there was a possibility of a change in the nature of the charges against them, that the detention should be terminated in accordance with the principle of proportionality considering the duration of their detention, and that the decisions regarding the continuation of their detention were unfounded. They alleged that Articles 19 and 36 of the Constitution had been violated and requested that they be released and awarded compensation.
II. APPLICATION PROCESS
2. The application was submitted by the applicants on 11/12/2014.
and demand their release and compensation.
II. APPLICATION PROCESS
2. The application was submitted by the applicants on 20/12/2012 through the Gaziantep 6th Heavy Penal
Court. Following the preliminary review of the petition and its attachments from an administrative perspective, it was determined that there were no deficiencies preventing its submission to the Commission.
3. During the review, it was decided to merge this application (No. 2013/68) with application No. 2013/72, which was of the same nature in terms of subject matter, and to conduct the review based on this file.
4. The First Section’s First Commission decided on January 9, 2013, to conduct the admissibility review of the application by the Section, to send the file to the Section, and to make a decision.
5. The First Section’s First Commission decided on January 9, 2013, to conduct the admissibility review of the application by the Section, to send the file to the Section, and to make a decision.
4. On January 9, 2013, the First Commission of the First Chamber decided that the admissibility review of the application should be conducted by the Chamber and that the file should be sent to the Chamber.
5. At its meeting on February 12, 2014, the Chamber decided that the admissibility and merits reviews should be conducted together.
6. The facts and circumstances of the case were reported to the Ministry of Justice on February 12, 2014.
The Ministry of Justice submitted its opinion on March 17, 2014.
6. The events and facts of the application were communicated to the Ministry of Justice on 12/2/2014.
The Ministry of Justice submitted its opinion to the Constitutional Court on 17/3/2014.
7.
The opinion submitted by the Ministry of Justice to the Constitutional Court was communicated to the applicant on 28/3/2014. The applicant submitted his statements in response to the opinion of the Ministry of Justice to the Constitutional Court on 8/4/2014.
III. FACTS AND CIRCUMSTANCES
A. Facts
8. The facts, as stated in the application form and its annexes, are summarized as follows:
9. The applicants were detained on January 5, 2010, and were arrested on the grounds that they had committed the crime of “membership in an armed terrorist organization” pursuant to the decision of the Gaziantep 5th Criminal Court of First Instance dated January 8, 2010, and numbered 2010/2.
10. The Court of First Instance reviewed the applicants’ detention on October 19, 2010, December 27, 2010, January 26, 2011, July 11, 2012, and September 13, 2013, and
the nature of the alleged crime, the evidence in the file, the existence of strong suspicion of a crime, and the fact that the period of detention
was proportionate to the likely sentence, the court decided to continue the detention.
11. The applicants were sentenced by the Adana 8th Heavy Penal Court’s decision dated 28/9/2012 and numbered
E.2010/128, K.2012/158, to 10 years’ imprisonment for membership of an organization under Article 62 and 314(2) of the Turkish Penal Code No. 5237, and to 10 years’ imprisonment for membership of an organization under Article 5 of the Anti-Terrorism Law No. 3713.
and Article 5 of the Anti-Terrorism Law No. 3713, and that the applicant Sadun Doğan be sentenced to and a fine of 740 TL for the offense of violating Law No. 6136, and that their detention should continue.
12. The applicants appealed against the decision of the Adana 8th Heavy Penal Court dated 28/9/2012 regarding the continuation of their detention, but the appeal was rejected by the Adana 6th Heavy Penal Court in its decision dated 7/11/2012 and numbered 2012/895. The rejection decision
was notified to the applicants on December 20, 2012.
13. The applicants filed an individual application with the Constitutional Court on December 20, 2012.
14. Upon the applicants’ appeal of the lower court’s decision, the Supreme Court’s 9th Chamber overturned the aforementioned ruling with its decision dated 27/11/2013 and numbered E.2013/9604, K.2013/14412.
15. The case against the applicants is pending before the lower court, and the applicants were released on March 21, 2014.
B. Relevant Law
16. Article 314(2) of Law No. 5237, Article 5 of Law No. 3713 on the Fight Against Terrorism, and Article 13 of Law No. 6136.
17. Article 100 of the Criminal Procedure Law No. 5271 reads as follows:
“Grounds for detention
Article 100 – (1) If there are facts indicating a strong suspicion of a crime and a ground for detention, a detention order may be issued against the suspect or defendant. A detention order may not be issued if it is disproportionate to the importance of the case, the expected penalty, or the security measure.
(2) A ground for detention may be presumed to exist in the following cases:
a) If there are concrete facts indicating that the suspect or defendant may flee, hide, or attempt to flee.
b) If the suspect or defendant’s behavior indicates:
b) The suspect’s or defendant’s behavior:
1. Destroying, concealing, or altering evidence,
2. Attempting to exert pressure on witnesses, victims, or others,
If there is strong suspicion in these matters.
(3) If there are strong grounds for suspicion that the following crimes have been committed, grounds for detention may be presumed:
(3) If there are strong grounds for suspicion that the following crimes have been committed,
there may be grounds for detention:
a) As stipulated in the Turkish Penal Code No. 5237 dated 26.9.2004;
9. Establishing an organization for the purpose of committing a crime (excluding the second, seventh, and eighth paragraphs, Article 220),
IV. REVIEW AND REASONS
18. At its meeting on 11/12/2014, the Court reviewed the applicant’s
individual application dated 20/12/2012 and numbered 2013/68 and considered the necessary measures:
A. The Applicants’ Claims
19. The applicants claim that they have been detained for a long time and that, if the provisions of the Transitional Article 1 of the Law on the Postponement of Trials and Penalties for Crimes Committed Through Publication,
and Posting of Crimes Committed Through the Press,
argue that if the provisions of the transitional Article 1 of the aforementioned law are applied, there is a possibility that the nature of the crime they are accused of may change,
and therefore there is a possibility of acquittal at the appeal stage. They claim that the detention order against them is disproportionate and that the provisions of judicial control
should be applied, that the reasons for the decisions to continue their detention
are insufficient, and that the trial against them is unfair, claiming that Articles 19 and 36 of the Constitution have been violated, and requesting their release and
compensation.
B. Evaluation
1. Admissibility
20. The applicants’ complaint that they have been detained for a long time and that the reasons for the court decisions to continue their detention
are insufficient is not clearly
unfounded. Furthermore, since there are no other grounds for inadmissibility,
it must be decided that the part of the application relating to this complaint is admissible.
2. On the Merits
21. The applicants have alleged that they have been detained for an extended period and that the reasons given by the courts for the continuation of their detention
are insufficient.
22. In its opinion, the Ministry of Justice stated that, as of the date of the application, the applicants were in the status of “persons deprived of their liberty after conviction,”
that their deprivation of liberty after conviction was not contrary to law,
and that the authority to interpret the legal rules in the examination of objections to the continuation of detention
belongs to the courts of first instance, provided that the rights and freedoms enshrined in the Constitution are not violated and
there is no clear arbitrariness in the judge’s discretion.
23.
23. The applicants, in opposition to the opinion of the Ministry of Justice,
stated that the decision issued by the lower court was overturned by the Court of Cassation,
that they had been detained for four years, that despite being released on March 21, 2014,
they remained detained in prison until that date, and that their right to liberty
had been concretely violated.
24. The applicants’ claims must be assessed under Article 19 of the Constitution.
25.
The seventh paragraph of Article 19 of the Constitution reads as follows:
“Persons who are detained have the right to be tried within a reasonable time and to request release during the investigation or prosecution. Release
may be subject to a guarantee to ensure the person’s presence at the trial during the trial period or the enforcement of the judgment
.”
26. The seventh paragraph of Article 19 of the Constitution guarantees that persons detained in the context of a criminal investigation
have the right to have the trial concluded within a reasonable time and to be released during the investigation
or prosecution (B. No: 2012/1137, 2/7/2013, § 60).
27.
27. The question of whether the duration of detention is reasonable cannot be assessed within the framework of a general principle.
Whether the period during which a defendant is detained is reasonable must be assessed on a case-by-case basis, taking into account the specific circumstances of each case.
The presumption of innocence, as expressed in Article 38 of the Constitution, “No one may be deemed guilty until their guilt is established by a final judgment,” must be upheld throughout the trial process. The presumption of innocence, which is expressed in Article 38 of the Constitution as “No one may be considered guilty until their guilt has been established by a final judgment,” requires that the individual’s liberty be the rule and detention the exception during the trial.
The continuation of detention The continuation of detention
can only be justified if there is a genuine public interest that outweighs the right to liberty and security guaranteed by Article 19 of the Constitution, despite the presumption of innocence
(Case No. 2013/9895, 2/1/2014, § 40).
28. Ensuring that detention in a case does not exceed a certain period of time is primarily
the responsibility of the courts of first instance. To this end, all circumstances affecting the public interest referred to above must be examined by the courts of first instance, and these circumstances and events must be set out in their decisions on requests for release (B. No:
2012/1137, 2/7/2013, §62).
29. In addition to strong indications of the guilt of individuals, detention measures may be resorted to in order to prevent these individuals from fleeing or destroying or altering evidence.
The continuation of these conditions during the period of detention is an indispensable condition for the legality and legitimacy of continued detention.
The initial grounds for detention may be considered sufficient for the continuation of detention for a certain period of time, but after this period has elapsed, the grounds for extension must be based on the grounds for detention.
While the initial grounds for detention may be deemed sufficient to justify the continuation of detention for a certain period,
after this period has elapsed, decisions to extend detention must be accompanied by
reasons demonstrating that the grounds for detention still exist. If these justifications are deemed “relevant” and “sufficient,” the diligence with which the trial process is conducted must also be examined. Factors such as the complexity of the case, whether it involves organized crime,
or the number of defendants are taken into account in assessing the diligence shown in the process.
By evaluating all these elements together, a conclusion can be reached as to whether the period is reasonable (B. No: 2012/1137, 2/7/2013, § 63).
30. In assessing whether Article 19, paragraph 7, of the Constitution has been violated, the main criterion is whether the reasons for the decision to release the defendant are sufficient.
30. In assessing whether Article 19, paragraph 7, of the Constitution has been violated, the main consideration should be the grounds for decisions on requests for release, and whether the decisions are sufficiently reasoned in light of the documents submitted in appeals against detention by persons in custody. On the other hand, a person who has been detained in accordance with the law must, in principle, be considered to be reasonably detained for a certain period of time as long as there are strong indications that he or she has committed a crime and one or more of the grounds for detention continue to exist (B.No: 2012/1137, 2/7/2013, §§ 63-64).
31. The detention and extension of detention of a person based on a judicial decision that is completely devoid of grounds is unacceptable.
However, it is not possible to say that the detention of a suspect or defendant is arbitrary if the grounds justifying the detention are shown. However, issuing a detention order or continuing detention with excessively brief grounds and without citing any legal provisions should not be evaluated within this framework (B. No: 2013/9895, 2/1/2014, § 45). Furthermore, where the appeal or review authority agrees with the court decision subject to appeal or review and the reasons given in that decision, its failure to provide detailed reasons for its decision does not, as a rule, constitute a violation of the right to a reasoned decision (B. No: 2013/9895, 2/1/2014, § 46).
32. In calculating the reasonable time, the starting point is the date of the applicant’s arrest or detention, if the applicant was previously arrested and detained, or the date of arrest, if the applicant was arrested directly.
32. In calculating the reasonable time, the starting point of the period is the date of arrest and detention in cases where the applicant was previously arrested and detained, or the date of arrest in cases where the applicant was directly arrested.
The end of the period is, as a rule, the date of release. However, if the applicant has been convicted in the case in which he or she is being tried while in custody, the end of the period is the date of conviction. The end of the period is, as a rule, the date on which the person is released. However, if the person has been convicted in the case in which they are being tried while in custody, the period of custody also ends on the date of conviction (B. No: 2012/237, 2/7/2013, §§ 66-67).
33. When calculating the period of detention, the time spent in the trial phase before the first-instance court
must be taken into account. This is because if the person has been convicted by the first-instance court in the case in which they are being tried, their legal status ceases to be “detained on suspicion of a crime
“ and the reason for detention changes to ”detention based on the ruling of the first-instance court.” In this regard,
the periods spent in the appeal stage cannot be taken into account in the assessment of the detention period.
However, since the individual’s situation will revert to detention based on a criminal charge following the reversal decision, the period spent before the first-instance court will be taken into account in the assessment (B. No: 2013/338, 2/7/2013, § 41).
34. In the present case, the applicants were detained on January 5, 2010, detained on January 8, 2010, and sentenced to imprisonment by the Adana 8th Heavy Penal Court on September 28, 2012, with the court deciding to continue their detention on the grounds that “there is a risk of the defendants fleeing given the severity of the sentence imposed.” For the first time,
the applicant was deprived of his liberty by court order on January 5, 2010, and
sentenced to imprisonment by the court of first instance on September 28, 2012, and was held “in connection with a criminal charge.”
35. The applicants appealed the court of first instance’s conviction decision. Between the date of the first instance court’s decision on September 28, 2012, and the date on which the Court of Cassation overturned this decision following the appeal review on November 27, 2013, the applicant was detained “in connection with the judgment handed down by the first instance
court.” The applicant’s detention following the first instance
court’s conviction decision cannot be characterized as detention. The period during the appeal process should not be taken into account in calculating the detention period.
36. Following the Supreme Court’s decision to overturn the ruling, the applicants’ trial continued in the court of first instance.
The case against the applicants is pending before the court of first instance during the Constitutional Court’s
review of the individual application. Between the Supreme Court’s decision to overturn the case on November 27, 2013, and the Gaziantep 4th High Criminal Court’s decision to release the applicants on March 21, 2014, the applicants were again detained “on suspicion of a crime.”
37. Accordingly, the applicants were deprived of their liberty between
January 5, 2010, when they were first deprived of their liberty, and the release decision issued by the Gaziantep 4th Heavy Penal Court on March 21, 2014, minus the 1 year, 1 month, and 29 days spent in the appeal process at the Supreme Court, they were deprived of their liberty for 3 years and 17 days on the basis of a criminal charge.
The 38th Degree Court reviewed the applicants’ detention status on October 19, 2010, December 27, 2010, January 26, 2011, July 11, 2012, and September 13, 2013, and
the nature of the alleged crime, the evidence in the file, the existence of strong suspicion of the crime, and the proportionality of the duration of detention to the likely sentence.
39. In the present case, the applicants finally appealed against the decision of the Adana 8th Heavy Penal Court dated 28/9/2012 regarding the continuation of detention, The appeal was rejected by the 6th Heavy Penal Court in its decision dated 7/11/2012 on the grounds that “…the crime falls under the scope of CMK 100 and subsequent articles, and there is a possibility that the defendants may flee given the severity of the sentence.”
40. In assessing whether Article 19, paragraph 7 of the Constitution has been violated, the grounds for decisions on requests for release should be examined, and whether the decisions are sufficiently reasoned in light of the documents submitted in the appeals against detention filed by the detained persons should be taken into account.
41. In the present case, when the grounds for the decisions of the courts of first instance on the objection to detention and the rejection of the objection are examined, it is seen that these grounds are not of a nature and content that would justify the legality of the continuation of detention
and the legitimacy of detention, and
are repetitive in nature. The grounds for the continuation of detention in the present case cannot be said to be relevant and sufficient. Considering that the applicants were deprived of their liberty based on grounds that are not relevant and sufficient, the detention period in question cannot be deemed reasonable.
42. For the reasons explained above, it is necessary to rule that Article 19, paragraph 7, of the Constitution has been violated with regard to the applicants’ claims that “the detention exceeded a reasonable period” and
“the reasons for the decisions to continue the detention were insufficient.”
3. Regarding Article 50 of Law No. 6216
43. Paragraph (1) of Article 50 of Law No. 6216 states that, in the event of a violation decision at the end of the substantive review,
the measures to be taken to eliminate the violation and its consequences shall be ruled upon; however, it is stipulated that no review of appropriateness may be conducted and no decision of an administrative action or procedure nature may be made.
44. The application concluded that Article 19, paragraph 7, of the Constitution had been violated.
45. The applicants sought material and moral compensation for the damage they had suffered. The applicant did not submit any documents to the Constitutional Court regarding the material damage they claim to have suffered.
For the Constitutional Court to award material compensation, a causal link must be established between the material damage the applicant claims to have suffered and the claim for compensation. The applicant’s claim for material compensation should be rejected since they did not submit any documents to the Constitutional Court.
46. Considering the existence of moral damage that cannot be compensated by merely determining the violation and the specific circumstances of the case, it is necessary to decide to pay the applicants a net amount of 3,000.00 TL in moral compensation.
47. It is necessary to decide that the litigation costs consisting of 172.50 TL in fees, as determined by the documents in the file and submitted by the applicants, shall be paid separately to each applicant, and that the litigation costs consisting of 1,500.00 TL in attorney’s fees shall be paid jointly to the applicants.
48. It is necessary to decide that a copy of the decision be sent to the relevant court.
V. JUDGMENT
A. The applicants’
1. Claims that “the detention exceeded a reasonable period” and that “the reasons for the decisions to continue the detention were insufficient” are ADMISSIBLE,
2. Other claims are INADMISSIBLE,
B. With regard to the claims that “the detention exceeded a reasonable period” and that “the reasons for the decisions to continue the detention were insufficient,” the seventh paragraph of Article 19 of the Constitution has been VIOLATED,
C. Payment of net 3,000.00 TL in moral damages to each of the applicants separately
and rejection of their other claims for damages,
D. The litigation costs consisting of 172.50 TL in fees, separately incurred by each applicant and determined in accordance with the documents in the file, shall be paid separately to each applicant,
and the litigation costs consisting of 1,500.00 TL in attorney’s fees shall be paid jointly to the applicants,
E. Payments shall be made within four months from the date of the applicant’s application to the Ministry of Finance following the notification of the decision; in the event of a delay in payment, legal interest shall be applied for the period from the date of expiry of this period to the date of payment.
The decision was made unanimously on 11/12/2014.
Chairman
Serruh KALELİ
Member
Hicabi DURSUN
Member
Erdal TERCAN
Member
Zühtü ARSLAN
Member
Hasan Tahsin GÖKCAN