Events
The applicant, who was an MP at the time of the application, was detained within the scope of the investigation conducted by the Chief Public Prosecutor’s Office on the charge of establishing and leading an armed terrorist organisation and was referred to the 4th Criminal Judge of Peace. As a result of the trial, it was decided to arrest the applicant for the aforementioned offence. Applicant’s defence counsel objected to the arrest warrant and the 5th Criminal Judgeship of Peace decided to reject the objection definitively.
Chief Public Prosecutor’s Office filed a lawsuit against the applicant at the same place at the same place at the heavy criminal court with the request that the applicant be sentenced for the crimes of establishing or leading an armed terrorist organisation, making propaganda for a terrorist organisation and inciting the public to unlawful meetings and demonstrations. The heavy criminal court decided to accept the indictment and to continue the applicant’s detention. On the other hand, with the indictment prepared as a result of another investigation conducted by the Chief Public Prosecutor’s Office, a public case was filed at the same place at the same heavy criminal court with the request that the applicant be sentenced for the offence of being a member of an armed terrorist organisation. In addition, some of the cases previously filed against the applicant were merged.
The applicant was elected as a member of parliament in the 27th Parliamentary General Election held on 24/6/2018. Thereupon, the applicant, through his defence counsel, requested the release of the applicant, stating that he had legislative immunity due to his parliamentary immunity, and the court ruled for the release of the applicant. The aforementioned decision was objected by the chief public prosecutor’s office and the 10th Assize Court issued an arrest warrant for the applicant.
On 25/1/2019, the court decided to release the applicant. On 4/6/2020, the conviction of the applicant for being a member of an armed terrorist organisation by Diyarbakır 2nd Assize Court in another case in which the applicant was previously tried, which was finalised as 6 years and 3 months of imprisonment, was read at the General Assembly of the Grand National Assembly of Turkey (TBMM).
Diyarbakır 9th Assize Court, at the end of the trial, which was continued without arrest for the applicant, decided on 21/12/2020 to convict the applicant on the charges of establishing or leading an armed terrorist organisation and making propaganda for an armed terrorist organisation, and to acquit the applicant of the other charges and to arrest the applicant. The applicant’s appeal against the convictions was rejected by the regional court of appeal. An appeal has been lodged against the aforementioned judgements and the case is pending at the Court of Cassation, where the applicant’s detention on remand continues.
Allegations
The applicant claimed that his right to personal liberty and security was violated due to unlawful arrest, detention and arrest.
The Court’s Assessment
1. Regarding the First Arrest Warrant
In many of its previous judgements, the Constitutional Court has accepted the utterance of words or making posts that are substantially similar to the expressions contained in the applicant’s speeches and posts as strong indications of guilt in its examinations in the context of the legality of detention in terms of terrorism-related offences, especially during the period when security forces were in armed conflict with members of the PKK terrorist organisation or terrorist attacks intensified. Accordingly, considering the findings and evaluations in the aforementioned Court of Cassation decision on the position of the Democratic Society Congress (DTK) and the applicant’s embrace of the PKK terrorist organisation’s actions and attacks in his speech as co-chair of this formation during the trench incidents, it is not possible to say that the acceptance of these as strong indicators in terms of a terrorism-related offence is groundless.
On the other hand, it is observed that the applicant used some expressions targeting the measures taken by Turkey to prevent the risk to the country’s security caused by the YPG, which is known to be the Syrian branch of the PKK terrorist organisation and the attacks of this organisation, and the cross-border operations carried out by Turkey. It should not be ignored that the expressions used by the applicant in the aforementioned post and speech contain meanings beyond criticising the cross-border operation organised by Turkey. In this context, it is observed that the applicant used a style evoking the threat of civil war against Turkey in relation to the cross-border operation. It has been assessed that the applicant’s posts and speeches during Operation Olive Branch can also be considered as strong indicators of a terrorism-related offence.
It is understood that the reasons for the arrest explained in the first arrest warrant issued against the applicant, particularly the suspicion of flight, have a factual basis. Regarding proportionality, considering the stated characteristics of the concrete case, it cannot be said that it is arbitrary and unfounded for the Diyarbakır 4th Criminal Judge of Peace to conclude that the arrest measure is proportionate and the judicial control application will be insufficient, taking into account the severity of the sanction foreseen for the offences charged and the nature of the work.
For the reasons explained above, the Constitutional Court decided that the right to personal liberty and security was not violated in terms of the first arrest decision.
2. Regarding the Second Arrest Warrant Issued After the Applicant’s Election as an MP
Legislative immunity, which is stipulated in Article 83 of the Constitution, has been accepted as a temporary guarantee that aims to prevent members of parliament from being prevented from legislative work through untimely criminal prosecutions and that is automatically lost with the termination of parliamentary office.
However, the Constitution does not regulate legislative immunity in absolute terms; some exceptions and limitations have been introduced to legislative immunity in Article 83 of the Constitution. Accordingly, as a rule, legislative immunity is limited to the term of parliament. Again, it is possible to lift the immunity of a member of parliament on the allegation that he/she has committed any offence before or after the election within this period by a decision of the Parliament. On the other hand, the existence of a criminal offence requiring severe punishment is one of the exceptions to legislative immunity.
Finally, the cases under Article 14 of the Constitution are also excluded from the scope of immunity, provided that the investigation has been initiated before the election. In this case, it is not possible to say that there is legislative immunity for offences under Article 14 of the Constitution, provided that the investigation has been initiated before the election. In the case against the applicant, the court considered that the crime of leading a terrorist organisation, which was also the subject of the arrest measure, was within the scope of Article 14 of the Constitution and did not accept the applicant’s request for a stay of proceedings due to legislative immunity. Therefore, it is necessary to determine whether the offence of leading a terrorist organisation for which the applicant’s arrest was ordered falls within the scope of Article 14 of the Constitution.
There is no provision in the Constitution -or in the relevant laws- on the offences that fall within the scope of Article 14 of the Constitution and therefore constitute an exception to legislative immunity, provided that the investigation has been initiated before the election; only in the last paragraph of the article, it is stated that the sanctions to be imposed on those who carry out activities contrary to the provisions in the first two paragraphs will be regulated by law. Article 83 of the Constitution stipulates the guarantees regarding legislative immunity for MPs, and in this framework, while stating the situations that constitute an exception to legislative immunity, Article 14 of the Constitution is referred to and it is stated that the situations in this article – provided that the investigation is initiated before the election – are within the scope of the exception.
On the other hand, the constitutional legislator has not clearly defined the offences within the scope of the phrase “the situations in Article 14 of the Constitution” in the second paragraph of Article 83 of the Constitution, and the legislator has not attempted to make a legal regulation determining the offences in question. Therefore, the courts of first instance determine whether the offence subject to trial is an offence falling within the scope of Article 14 of the Constitution by directly interpreting and applying the Constitutional provision, not by interpreting and applying the text of a law enacted by the legislator.
In that case, it is necessary to assess whether the interpretation made by the courts of first instance regarding Article 14 of the Constitution complies with the criterion of legality, which expresses foreseeability and certainty. As in the norm review, the final interpretation authority of the articles of the Constitution in the individual application procedure belongs to the Constitutional Court.
The third paragraph of Article 14 of the Constitution stipulates that “The sanctions to be imposed on those who carry out activities contrary to these provisions shall be regulated by law.” Although the legislator has regulated many types of offences in the penal codes, which of these types of offences are within the scope of Article 14 of the Constitution has not been determined by a law that is the product of the will of the Parliament. Which of the offences in the penal codes will be included within the scope of Article 14 and thus excluded from the scope of legislative immunity depends on which of the above-mentioned possible interpretations of the general wording of the first and second paragraphs of Article 14 of the Constitution will be preferred by the practitioners.
In the Ömer Faruk Gergerlioğlu judgment, the Constitutional Court stated that the text of the first paragraph of Article 14 of the Constitution is not conducive to interpreting the phrase “the cases in Article 14 of the Constitution” in the second paragraph of Article 83 of the Constitution, and therefore the offences that are excluded from legislative immunity due to falling within the scope of the first paragraph of Article 14 of the Constitution, in a way that would ensure certainty and predictability.
In this respect, in the absence of predictable constitutional or legal rules to provide the guarantees of legislative immunity, which sets out the scope of the situations in Article 14 of the Constitution, the third paragraph of Article 14 of the Constitution and the provisions of the third paragraph of Article 67 of the Constitution regulating the right to elect, be elected and engage in political activity.
Based on the provisions of the third paragraph of Article 14 of the Constitution and the third paragraph of Article 67 of the Constitution regulating the right to elect and to engage in political activities, it has been concluded that it is not possible to ensure certainty and predictability with the interpretations made by the judicial organs other than the regulation of the legislator regarding which offences fall within the scope of the phrase “situations in Article 14 of the Constitution” in the second paragraph of Article 83 of the Constitution.
In the aforementioned decision, it was evaluated that both Article 83 of the Constitution, which protects legislative immunity, and Article 14 of the Constitution, which prohibits the abuse of fundamental rights and freedoms, can only fully fulfil their functions if they are interpreted in the context of the protection of democracy and on the basis of rights, and that the courts do not interpret these constitutional provisions in favour of freedoms, and that there is no legal system (a constitutional or legal regulation with fundamental guarantees, ensuring certainty and predictability) with substantive and procedural guarantees that would lead them to such an interpretation.
Consequently, the fact that the applicant, who was released after being elected as an MP and having legislative immunity in general, was arrested again and deprived of his liberty despite the fact that there was an obstacle arising directly from the Constitution, is incompatible with Article 83 of the Constitution, which includes guarantees regarding legislative immunity.
For the reasons explained above, the Constitutional Court decided that the right to personal liberty and security was violated in terms of the second arrest warrant issued after the election of the applicant as an MP.
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