Violation Of The Right To Compensation Due To Inadequate Compensation Paid In The Case Filed Due To Unlawful Detention And Arrest
Events
The applicant’s spouse was detained and arrested within the scope of Fetullah Terrorist Organisation/Parallel State Structure (FETÖ/PDY) investigations. Upon the decision to search the residence and seize digital materials of family members under the same roof, the applicant’s mobile phone and SIM card were also seized. It was alleged that the applicant downloaded and used the ByLock programme on two phone lines registered to his wife.
An investigation was initiated against the suspects, including the applicant, on the allegation that they were FETÖ/PDY members. The Chief Public Prosecutor’s Office, taking into account the possibility of the suspects fleeing and destroying the evidence and the nature of the offences charged, decided to arrest the suspects and detain them for seven days in accordance with Articles 90 and 91 of the Code of Criminal Procedure No. 5271 and Article 6 of the State of Emergency Decree Law No. 667 in order to ensure that the suspects are interrogated in a healthy manner together with the evidence of the crime, to collect and protect the evidence and to conclude the investigation in a fair, fast and effective manner. Pursuant to this order, the applicant was arrested and detained in Adana. Within the scope of the investigation carried out in Istanbul, law enforcement officers on duty in Istanbul came to pick up the applicant from Adana Security Directorate where he was detained; during the interview with the law enforcement officers, the applicant stated that he had a 14-month-old baby in need of care and that there was no one to whom he could hand over his child. The law enforcement officers then had a telephone conversation with the prosecutor, who instructed the applicant to remain in detention.
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The applicant appealed against the detention order through his lawyer. The Chief Public Prosecutor’s Office referred the applicant to the criminal judgeship of peace with a request for his arrest on the charge of being a member of a terrorist organisation. Following his interrogation, the applicant was arrested on the charge of being a member of a terrorist organisation. The arrest warrant was based on documents, minutes and reports indicating that the ByLock programme was installed on the mobile phone used by the applicant.
The applicant objected to the arrest warrant; the criminal court of peace stated that a criminal case had been filed against the applicant and decided to send the objection to the arrest warrant to the Assize Court for examination. The Assize Court decided to continue detention on the grounds that there was a strong suspicion of guilt, that the offence was one of the catalogue offences, and that the judicial control provisions would not be sufficient to provide the expected benefit from detention given the nature of the act.
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The case against the applicant and the case against his spouse were merged on 24/1/2018 and the case against the applicant was separated from the merged case on 10/4/2018. As a result of the trial, the applicant was acquitted. Upon the finalisation of the acquittal verdict, the applicant filed a lawsuit claiming 20,000 TL pecuniary damages and 40,000 TL non-pecuniary damages due to unjust detention and arrest measures and seizure of digital materials. As a result of the trial, it was decided to pay 3,541.92 TL pecuniary compensation, 6,000 TL non-pecuniary compensation and 1,320 TL lump sum attorney’s fee to the applicant, and the applicant’s requests for compensation for judicial control and seizure measures were rejected. The applicant applied to the legal remedy of appeal stating that the damages awarded were low. The Regional Court of Appeal corrected the pecuniary compensation to 3.537,02 TL and the attorney’s fee to 1.430,55 TL and definitively decided to reject the appeal on the merits.
Allegations
The applicant claimed that his right to liberty and security of person was violated due to the inadequacy of the compensation paid in the compensation case for unlawful detention and arrest.
The Court’s Assessment
The applicant was arrested and detained within the scope of a criminal investigation within the framework of the provisions of Articles 90 and 91 of Law No. 5271. Therefore, the detention measure applied to the applicant has a legal basis.
It is necessary to examine whether there are concrete indications that the applicant has committed an offence, which is a prerequisite for the detention measure that is understood to have a legal basis. In the concrete case, the applicant was detained on the allegation of using ByLock through a phone line registered in the name of his wife. In his statement dated 4/11/2016, the applicant’s spouse declared that the line in question was used by the applicant. The applicant also admitted in his statement that he used the phone line from time to time. Considering the characteristics of the ByLock application, the Constitutional Court states that the use of this application or the installation of this application on electronic/mobile devices for use may be considered by the investigating authorities as an indication of an interest in FETÖ/PDY. In the light of these facts, it is seen that there is a suspicion that the applicant may have used the ByLock programme via the aforementioned telephone line. In this respect, it is concluded that there are facts confirming the criminal suspicion necessary for the application of the detention measure.
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On the other hand, considering that the applicant was detained without a judge’s order, it should also be examined whether there was a case of an excessive offence or a situation that is prejudicial to delay in the concrete case. The investigating authorities considered the applicant’s situation within the scope of a precautionary situation in case of delay.
The offences of being a member of an armed terrorist organisation, for which the applicant was arrested, are among the types of offences for which severe penal sanctions are prescribed in the Turkish legal system, and the severity of the penalty prescribed in the law for the alleged crime is one of the situations that point to the suspicion of flight. Moreover, since the investigation of terrorist offences poses serious difficulties for the public authorities, the right to liberty and security of person must not be interpreted in such a way as to make it excessively difficult for judicial and security authorities to effectively combat crime and criminality, particularly organised crime. Therefore, considering the characteristics of the terrorist organisation under investigation, it is obvious that these investigations are much more difficult and complex than other criminal investigations.
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The investigating authorities are in a better position than the Constitutional Court in assessing whether there is a case of undue delay. Undoubtedly, these assessments of the investigation authorities are subject to the supervision of the Constitutional Court. In the concrete case, there is no situation that requires interference with the opinion of the investigating authorities that there is an inconvenience in delay. Therefore, it has been concluded that the guarantee in the last sentence of the third paragraph of Article 19 of the Constitution has been provided.
Moreover, there is no doubt that the purpose of the arrest of the applicant, who was found to have a concrete indication that he had committed a crime, was to ensure that the investigation proceedings regarding this suspicion of crime were carried out and the material truth was revealed. Therefore, it cannot be said that the detention of the applicant was not based on a constitutionally legitimate purpose.
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Finally, it is also necessary to determine whether the arrest measure against the applicant is proportionate. The applicant’s wife declared in her statement to the police on 4/11/2016 that the line in question was used by the applicant. The investigating authorities claimed that the applicant used the ByLock programme on the basis of this statement given at the police station. It cannot be understood from the characteristics of the concrete case why it was necessary to detain the applicant after a period of approximately one year from the statement in question. On the other hand, although the applicant stated in her petition of objection to the detention decision and in the interview she had with the law enforcement officers on 3/11/2017 (of which the prosecutor was informed) that she had a one-year-old baby in need of care at the age of breastfeeding, that her husband was in detention and that there was no one to whom she could deliver her baby, this special situation of the applicant was not taken into consideration in terms of the proportionality of the detention. In this respect, it was concluded that the detention was disproportionate. Although the accusation subject to the detention measure is related to the phenomenon that led to the declaration of the state of emergency, this measure applied under the above-mentioned conditions is not considered as a measure required by the state of emergency.
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In a situation where the measure of detention is not proportionate, it is concluded that the measure of arrest is also not proportionate. Although the detention and arrest measures were unlawful, the Court of First Instance did not pay the applicant an appropriate compensation on the grounds that he was subjected to a procedure contrary to the principles set out in the third paragraph of Article 19 of the Constitution and in return for these unlawful procedures.
For the reasons explained above, the Constitutional Court held that the right to compensation in connection with the right to personal liberty and security was violated.
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