28 November 2018 Wednesday

Salih Sönmez (no. 2016/25431, 28 November 2018)

The Facts

The applicant was elected as a member of the Court of Cassation by the Council of Judges and Public Prosecutors (“the CJP”) in 2011. On 21 July 2016 he was taken into custody within the scope of an investigation launched by the chief public prosecutor’s office after the coup attempt of July 15th.

On 22 July 2016 the Ankara Chief Public Prosecutor’s Office indicted the applicant before the magistrate judge. The latter ordered the applicant’s detention on remand. Upon the applicant’s appeal, the incumbent court ordered the continuation of his detention on remand. The applicant’s appeal was again dismissed, and subsequently, on 9 November 2016 he lodged an individual application.

The case is still pending before the Court of Cassation in its capacity as the first instance court and the applicant is detained pending trial.

The Applicant’s Allegations

The applicant maintained that the judicial review of his detention on remand was conducted without holding a hearing, and therefore his right to personal liberty and security was violated.

The Court’s Assessment

In its decisions concerning the alleged excessive or unreasonable length of pre-trial detention, the Constitutional Court concluded that action for damages envisaged in the Code of Criminal Procedure no. 5271 was an effective legal remedy. Accordingly, in cases of alleged violations of rights as in the present case, the remedies capable of affording redress must primarily be exhausted. Unless a result is achieved, then an individual application can be lodged.

In the present case, it appears that the judicial review of the applicant’s detention on remand was conducted over the case-documents without his being brought before a judge/court for a period of 21 months between 22 July 2016 and 5 April 2018. The applicant has been detained pending trial, and he could attend the hearings held at reasonable intervals since the first hearing held on 5 April 2018 before the Court of Cassation.

In one of its recent judgments, the Constitutional Court concluded that the judicial review of detention of the prisoners held for terrorism-related offences or the offences related to the Fetullahist Terrorist Organization and/ or the Parallel State Structure (FETÖ/PDY) after the coup attempt without being brought before a judge/court for a period more than 18 months was in breach of the right to personal liberty and security even during the state of emergency period.

As the applicant has already been brought before a judge/court, finding of a violation by the Constitutional Court will not cause the applicant to be brought before a judge/court again, nor will it result in his release. Therefore, the Court may only find a violation as regards the applicant’s not having been brought before a judge/court for a period of 21 months, or it may award a certain amount of compensation, if necessary. In case of an unlawfulness to be found as a result of the case to be filed with these allegations, the incumbent court may award compensation in favour of the applicant.

Accordingly, it was concluded that the remedy specified in Article 141 of Law no. 5271 was effective and applicable to the applicant’s case and that the examination of the individual application filed without exhaustion of this ordinary legal remedy did not comply with the subsidiary nature of the individual application mechanism.

Consequently, the Constitutional Court declared inadmissible the alleged violation of the applicant’s right to personal liberty and security due to the judicial review of his detention on remand without being brought before a judge/court.