20 September 2018 Thursday

Ali Şeker (no. 2016/68962, 20 September 2018)

The Facts

The applicant, who was a teacher, was dismissed from the public service in accordance with the Decree Law no. 672 on Measures Taken with respect to the Public Officials under the State of Emergency.

Within the scope of the investigation launched against the applicant for membership of the Fetullahist Terrorist Organization and/or the Parallel State Structure (FETÖ/PDY), he was brought before the magistrate judge for detention. He was detained on remand for membership of the armed terrorist organization. The applicant’s appeal against the decision of the magistrate judge ordering the continuation of his detention on remand was dismissed. The applicant subsequently lodged an individual application.

During the period following the individual application, a case was filed before the assize court with the indictment of the chief public prosecutor’s office. The assize court convicted the applicant of aiding the armed terrorist organization knowingly and willingly without being involved in its hierarchical structure and acquitted him of contravening Law no. 6415. The applicant’s appeal against his conviction is still pending.

The Applicant’s Allegations

The applicant maintained that his right to personal liberty and security was violated due to unlawfulness of his detention on remand and restriction of his access to the investigation file.

The Court’s Assessment

  1. Alleged Unlawfulness of Detention on Remand

In the present case, it must be discussed whether the facts relied on by the investigation authorities could be regarded as a strong indication that the applicant had committed an offence in relation to the FETÖ/PDY. In this respect, two facts are of particular importance. The first is that the applicant was a director in Aktif-Sen labour union, and the second is that the applicant had participated in a protest carried out upon the instruction of the labour union.

Considering the characteristics of the FETÖ/PDY, the importance it attached to education, the relationship of Aktif-Sen –which was closed after the coup attempt of July 15th– with this structure, and the events related to the organization, which occurred across the country during the period when the applicant was a director of the labour union, all these can be regarded as a strong indication of guilt on the part of the applicant.

In addition, given the developments occurred in the country during the material period, the fact that the applicant had participated in the demonstrations held to protest certain investigations conducted against the media outlets known to have links with the FETÖ/PDY was regarded as a strong indication that there was an organizational relationship between the applicant and the FETÖ/PDY, which was neither an arbitrary nor an unsubstantial consideration.

In view of all the facts concerning the incident, it was agreed that the applicant’s detention on remand was proportionate, the principles stipulated in the law were applied to the case, and the conditional bail would not be a sufficient measure.

  1. Alleged Restriction of Access to the Investigation File

In the present case, it was understood that the investigation document had been read to the applicant and his lawyer during the proceedings before the magistrate judge. The incumbent judge also explained the offences imputed to the applicant. Having been informed of the relevant information and documents pertaining to the charges against him and of the grounds relied on therein, the applicant made his verbal defence before the judge in the presence of his lawyer and denied the accusations against him.

Furthermore, the applicant did not submit any complaint as to the restriction of his access to the other documents. Thus, both the applicant and his lawyer had access to the documents pertaining to the accusations against the applicant, as well as to the other information. The main elements forming a basis for the accusations and the information relied on in the assessment of the lawfulness of his detention were notified to the applicant and his lawyer. The applicant was provided with the opportunity to make his defence in this respect. Considering these circumstances, it cannot be accepted that the applicant could not challenge his detention effectively due to the restriction order applied during the investigation stage that had lasted a few months.

Consequently, the Constitutional Court declared the alleged violation of the applicant’s right to personal liberty and security due to unlawfulness of his detention on remand and restriction of his access to the investigation file inadmissible for being manifestly ill-founded.