The Allegations Regarding The Violation Of The Right To Personal Liberty And Security Are Inadmissible Due To Lack Of Clear Grounds
Events
The applicant, against whom an investigation was initiated by the Chief Public Prosecutor’s Office (Chief Public Prosecutor’s Office) due to his alleged involvement in the Fetullahist Terrorist Organisation and/or Parallel State Structure (FETÖ/PDY), was detained on 3/10/2017. Applicant, who provided consistent information about the organisation’s provincial structure and made identifications, was referred to the 1st Criminal Judge of Peace by the Chief Public Prosecutor’s Office. The 1st Criminal Judgeship of Peace ruled that the judicial control measure of banning the applicant from travelling abroad be applied.
As a result of the public case against the applicant, the 2nd Assize Court (the Court) sentenced the applicant to 1 year, 8 months and 18 days of imprisonment for the offence of being a member of an armed terrorist organisation (by applying the effective remorse provisions) and decided to defer the announcement of this sentence (HAGB).
On the other hand, based on the evidence gathered in the investigation in which technical and physical surveillance methods were used after the police units obtained intelligence information that FETÖ/PDY was in a new structuring after the coup attempt, the applicant was referred by the Chief Public Prosecutor’s Office to the 2nd Criminal Judge of Peace (Judgeship) with the request for his arrest on the charge of being a member of an armed terrorist organisation. The applicant was arrested on 26/6/2020 on the charge of being a member of an armed terrorist organisation following his interrogation by the Judge. Applicant’s objection to the arrest decision was rejected definitively by the 1st Criminal Judge of Peace.
The Chief Public Prosecutor’s Office filed a public case against the applicant at the same place heavy criminal court with the request that the applicant be sentenced for being a member of an armed terrorist organisation. At the end of the first hearing on 11/6/2021, the court decided to continue the applicant’s detention.
Allegations
The applicant claimed that his right to personal liberty and security was violated due to the fact that his re-arrest on the same charge after the decision to defer the announcement of the verdict in the trial against him on the charge of being a member of a terrorist organisation following the coup attempt was unlawful and the detention exceeded a reasonable period of time.
The Court’s Assessment
1. Regarding the Allegation that the Arrest is Unlawful
The applicant was arrested on the charge of being a member of an armed terrorist organisation within the scope of the investigation conducted on the allegation that he was a member of FETÖ/PDY, which is stated to be the organisation behind the coup attempt.
Considering the indictment and other documents in the investigation file, it is seen that the investigation against the applicant was initiated as a result of obtaining information that FETÖ/PDY was in a new organisation and that the applicant took part in this structure again after the HAGB decision.
It has been observed that the investigation authorities accepted that the applicant’s unofficial employment of B.A., who used the code names “Hacı, Hacı Mustafa” to organise the aids provided to the members of the organisation and/or their families, as a basis for the accusation. The investigating authorities considered this contact as the fact that the applicant took part in the hierarchy of the organisation under the supervision and instructions of B.A. in the new structure that the organisation was trying to activate.
As a matter of fact, the applicant could not reasonably explain the contact he established with B.A. and what was in the envelope he gave to B.A. on 11/3/2020. The Chief Public Prosecutor’s Office’s assessment that the applicant’s sending a text message to İ.Z. from his mobile phone after his conversation with İ.Z. on 15/6/2020 was intended to prevent his contact with B.A. from being deciphered is also not unfounded.
On the other hand, persons who work as tradesmen and are accused of being FETÖ/PDY members have stated in their statements that the applicant was in contact with FETÖ/PDY and that he continued to belong to this organisation through his activities. As a matter of fact, the Chief Public Prosecutor’s Office stated that during physical surveillance on different dates, it was determined that B.A. and A.B., A.Y. and P.K., who were under investigation for membership of the organisation, frequently met in a detached house and at the applicant’s workplace. İ.Z. stated that “he knew that the applicant had a connection with Greece and therefore asked the applicant to help send money to his daughter M.Z.,
who is a fugitive in Greece on charges of FETÖ/PDY membership, and that the applicant warned him on the phone not to discuss this matter”, and S.F. stated that “the applicant distributed the money and provisions received from B.A. to the families of people who belonged to the organisation but did not confess and to the families of fugitives”. These witness statements contain information about the place, person and action, and in this sense, they enable the judicial authorities to carry out an inspection.
Accordingly, when the statements of witnesses İ.Z. and S.F. and other facts obtained through communication detection and technical surveillance are evaluated together, it is seen that there are strong indications within the scope of the file confirming the existence of criminal suspicion in terms of the criminal allegation that the applicant is active in the new organisation FETÖ/PDY is trying to create and necessary for arrest.
On the other hand, the applicant claims that it is unlawful for him to be arrested again for the same accusation despite the fact that he was given a HAGB decision as a result of the investigation / prosecution processes carried out for the same offence before.
According to the established jurisprudence of the Court of Cassation, it is accepted that the crime of membership of a terrorist organisation is one of the continuing crimes and the continuity will be interrupted with the arrest of the person (actual continuity) and the issuance of the indictment (legal continuity), therefore, the organisational actions of the person after the arrest and issuance of the indictment can be subject to a new accusation. Accordingly, considering the aforementioned facts and the case-law of the Court of Cassation, it cannot be said that bringing a new charge against the applicant was arbitrary and unfounded.
Therefore, when the general conditions at the time of the arrest decision, the specific circumstances of the concrete case and the content of the decision of the Judge are considered together, it can be said that the reasons for arrest, especially the suspicion of tampering with evidence, have a factual basis.
On the other hand, it should be noted that the investigation of terrorist offences confronts the public authorities with serious difficulties. Therefore, the right to liberty and security of person must not be interpreted in such a way as to make it unduly difficult for judicial and security authorities to effectively combat crime and criminality, particularly organised crime. Considering the scope and nature of FETÖ/PDY-related investigations and the characteristics of FETÖ/PDY – such as secrecy, cell-type structuring, organisation in every institution, attributing holiness to itself, acting on the basis of obedience and submission – it is obvious that these investigations are much more difficult and complex than other criminal investigations.
Considering the characteristics of the concrete case, it cannot be said that the judge’s conclusion that the arrest measure applied to the applicant was proportionate and that the judicial control application would be insufficient, taking into account that all the evidence for the alleged offence has not yet been collected and the nature and importance of the case, is arbitrary and unfounded.
For the reasons explained above, the Constitutional Court ruled that the allegation of violation of the right to personal liberty and security was inadmissible due to manifestly lack of grounds.
2. Regarding the allegation that the detention exceeded the reasonable period of time
Considering that the justifications of the decisions of the courts of first instance regarding the continuation of the applicant’s detention are relevant and sufficient in terms of stating the legitimate reasons for the deprivation of liberty, that the investigation / prosecution process is difficult and complex and that no carelessness has been detected in the conduct of this process, it is concluded that the detention period of 1 year and 5 months is reasonable.
For the reasons explained above, the Constitutional Court ruled that the allegation of violation of the right to personal liberty and security was inadmissible due to lack of clear grounds.
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