18 July 2018 Wednesday
Kadri Enis Berberoğlu (no. 2017/27793, 18 July 2018)
An investigation was initiated into the incident where the trucks carrying materials belonging to the National Intelligence Organization had been stopped and searched in two provinces. Under the investigation, certain law enforcement officers and judicial members were detained on remand.
A daily newspaper published news on this matter on two different days and released photos and information about the weapons and ammunition alleged to be in the trucks. Thereupon, the incumbent chief public prosecutor’s office initiated an investigation into the offences of obtaining confidential information regarding State security, political and military espionage, disclosing confidential information and making propaganda of terrorist organization.
Accordingly, a criminal action was brought against the journalists, Erdem Gül and Can Dündar, on account of the news relating to the investigation. In light of certain information revealed through the proceedings, the applicant, who had allegedly provided Can Dündar with the images, was placed under investigation.
By the indictment issued by the chief public prosecutor’s office, a criminal action was brought against the applicant before the incumbent assize court for the alleged offences of providing confidential information of the State for the purpose of political or military espionage and knowingly and wilfully aiding an armed terrorist organization (FETÖ/PDY).
The assize court convicted the applicant and ordered his detention. His appeal to this decision was dismissed.
The Applicant’s Allegations
The applicant maintained that there was a breach of his right to personal liberty and security due to the unlawfulness of the decision ordering his post-trial detention as well as his right to stand for election due to his inability, on account of being detained, to perform his duties as an MP.
The Court’s Assessment
- Alleged Violation of the Right to Personal Liberty and Security
In Article 19 of the Constitution, it is enshrined that everyone has the right to personal liberty and security, and circumstances under which persons may be deprived of liberty are enumerated exhaustively.
Pursuant to this article, one of the circumstances allowing deprivation of liberty is the execution of penalties and implementation of security measures, which are imposed by courts through sentencing in the form of deprivation of liberty.
In the present case, the detention status complained of by the applicant is not in the form of a pre-trial detention on the basis of a criminal charge but detention after conviction, in other words, the execution of penalties and implementation of security measures imposed by courts through sentencing in the form of depriving a person of liberty. In case of such an alleged violation, the Constitutional Court’s task is limited to determining whether or not the person has been deprived of his liberty, partially or completely, under these circumstances.
In many applications of similar nature, the Constitutional Court found manifestly ill-founded and therefore declared inadmissible the alleged violation of the right to personal liberty and security of the persons who have been deprived of liberty through imprisonment or arrest warrant ordered in the sentence following the trial. The Court also found inadmissible, on the same ground, the similar allegations raised by the applicants whose status of being detained continued due to conviction after trial.
On the other hand, regard being had to the case documents with respect to the applicant, it has been observed that the criminal act imputed to the applicant in the motion for lifting his parliamentary immunity, in the indictment, and in the decisions of first instance and district appeal court is essentially same although there exists some differences on the assessment of the legal qualification of the imputed act. In this respect, it cannot be concluded that the imputed act resulted in the applicant’s conviction and imprisonment was outside the scope of the exception to the parliamentary immunity introduced by the constitutional amendment.
Besides, the applicant was elected as a member of parliament in the general election held subsequent to the applicant’s individual application. As a requirement of the subsidiarity nature of the individual application mechanism, the question as to whether the applicant’s election as an MP hinders the continuation of the applicant’s post-trial detention must be examined primarily by the inferior courts through the ordinary legal remedies.
The applicant’s file contains no information or document indicating that the applicant lodged an individual application with a request to be released for being re-elected as a member of parliament after having exhausted the ordinary legal remedies. Therefore, it is not possible, at this stage, to examine whether the applicant’s re-election as an MP constitutes an obstacle to the continuation of the applicant’s post-trial detention.
For the reasons explained above, the Court declared this part of the application inadmissible for being manifestly ill-founded.
- Alleged Violation of the Right to Stand for Election
In the recent judgments rendered by the Constitutional Court, the allegations of the applicants −who were members of the parliament− that their rights to carry out political activities and to stand for election had been violated are examined in conjunction with the right to personal liberty and security.
In cases where detention status was found lawful at the end of the examination conducted, the Court found inadmissible for being manifestly ill-founded the alleged violation of the rights to carry out political activities and to stand for election due to detention measure.
In the present case, the alleged unlawfulness of the applicant’s detention order was found inadmissible for being manifestly ill-founded as it falls into the scope of the execution of penalties and implementation of security measures, which are imposed by courts through sentencing in the form of deprivation of liberty. Considering the assessments in respect thereof, the Court found no reason to reach a different conclusion with respect to the applicant’s allegation that his right to stand for election was also violated on account of his post-trial detention.
For the reasons explained above, also this part of the application was found inadmissible for being manifestly ill-founded.