Individual Application

The Facts

The applicant is an academician, as well as a well-known journalist and author.

On the night of 15 July 2016, Turkey faced a military coup attempt. Therefore, a state of emergency was declared countrywide on 21 July 2016. The public authorities and the investigation authorities stated that the FETÖ/PDY was the plotter/perpetrator of the coup attempt.

In this scope, investigations have been conducted against the structures of the FETÖ/PDY in various fields such as education, health, trade, civil society and media in public institutions, and many persons have been taken into custody and detained.

The Istanbul Chief Public Prosecutor’s Office initiated an investigation in relation to the media structure of the FETÖ/PDY against seventeen suspects, including the applicant, many of whom were journalists, authors and academicians.

In this scope, the applicant was taken into custody on 10 September 2016 and a search warrant was issued on his house. During the search, a bank card issued by the Bank Asya in the name of the applicant and six pieces of 1 USD banknote –two of them were (F) series– were seized. The applicant was held in custody until 21 September 2016.

On 21 September 2016, the Istanbul Chief Public Prosecutor’s Office took the applicant’s statement. On 22 September 2016, the Magistrate Judge’s Office ordered the applicant’s detention on remand for attempting to overthrow the Government of the Republic of Turkey or prevent it from performing its duties and for membership of a terrorist organization.

The applicant appealed against the detention order and requested the review of his appeal at a hearing. However, the Istanbul 1st Magistrate Judge’s Office reviewed the applicant’s appeal without hearing and dismissed it with no further right of appeal.

On 12 April 2017, the Istanbul Chief Public Prosecutor’s Office indicted the applicant for the offences of attempting to overthrow the Government of the Republic of Turkey or prevent it from performing its duties, attempting to overthrow the constitutional order and committing crime on behalf of a terrorist organization without being a member of it.

The case against the applicant is still pending before the 26th Chamber of the Istanbul Assize Court. At the hearing of 11 December 2017, the Public prosecutor submitted his opinion on the merits. He requested that the applicant be punished for attempting to overthrow the constitutional order. The applicant is still detained on remand.

The Applicant’s Allegations

The applicant maintained that his detention was unlawful and that his right to liberty and security, as well as the freedoms of expression and press, were breached on the ground that the imputed acts fell into the scope of freedoms of expression and press and that there were no grounds for detention. According to the applicant, he was detained for political reasons rather than the reasons set forth in the Constitution.

The applicant also complained that his apprehension was unlawful, that his access to investigation file was restricted, that magistrate judgeship did not conform to the principles of independence and impartiality, that his appeal was reviewed without a hearing and that the prohibition of ill-treatment was violated.

The Constitutional Court’s Assessment

Alleged Unlawfulness of Detention

In brief, the Constitutional Court made the following assessments:

The examination of the Constitutional Court will be limited to the assessment of the lawfulness of the applicant’s detention on remand, independently of the conducting of investigation and prosecution against the applicant and the possible results of the proceedings. In addition, the issue as to whether Article 19 § 3 of the Constitution have been violated is to be examined in the specific circumstances of each application.

In Article 19 § 1 of the Constitution, it is set out in principle that everyone has the right to personal liberty and security. In Article 19 §§ 2 and 3, it is set forth that individuals may be deprived of liberty with due process of law only under the circumstances stated therein. Accordingly, the freedom of a person may be restricted only in cases where one of the circumstances specified in this article exists.

Moreover, an interference with the right to liberty and security constitutes a breach of Article 19 of the Constitution unless it also complies with the conditions set out in Article 13 of the Constitution in which the criteria with respect to the restriction of fundamental rights and freedoms are specified. It is therefore necessary to determine whether the restriction complies with the requirements enshrined in Article 13 of the Constitution; i.e., the requirements of being prescribed by law, relying on one or more valid reasons specified in the relevant articles of the Constitution, and not being contrary to the principle of proportionality.  

Pursuant to Article 19 § 3 of the Constitution, the detention measure can be applied only for “individuals against whom there is a strong indication of guilt”. In other words, the prerequisite for detention is the existence of a strong indication that the individual has committed an offence. Therefore, in every concrete case, it must be assessed whether this prerequisite has been fulfilled or not prior to making an examination as to the other requirements of detention. Strong indication of guilt appears only in cases where the accusation is supported with convincing evidence likely to be regarded as strong.    

In cases where there are serious claims that the imputed acts fall within the scope of the fundamental rights and freedoms, which are indispensable for democratic social order, such as freedom of expression, freedom of the press, freedom of assembly and the rights to elect, to be elected and to carry out political activities, or in cases where such a situation is evident from the circumstances of the concrete case, the judicial authorities resorting to detention must apply a higher scrutiny in determining the existence of strong criminal suspicion.

In every concrete case, it falls in the first place upon the judicial authorities deciding detention cases to determine whether the prerequisites for detention, i.e., the strong indication of guilt and other grounds exist, and whether the detention is a proportionate measure. As a matter of fact, those authorities which have direct access to the parties and evidence are in a better position than the Constitutional Court in making such determinations. However, it is the Constitutional Court’s duty to review whether the judicial authorities have exceeded the discretion conferred upon them.

The Constitutional Court’s review must be conducted especially over the detention process and the reasoning of detention order by having regard to the circumstances of the concrete case.

In line with these general principles, it must be primarily assessed whether there is a strong indication of guilt on the part of the applicant in the present case.

Referring to the facts that the applicant constantly made statements in the media outlets of the FETÖ/PDY, the perpetrator of the coup attempt of 15 July 2016, and in line with the purposes of this organization, thereby paving the way for the coup attempt, and that he explicitly made a call for coup during his speech on a television programme, the Istanbul 10^th Magistrate Judge’s Office concluded that there was strong criminal suspicion on the part of the applicant for attempting to overthrow the Government of the Republic of Turkey or prevent it from performing its duties and for membership of a terrorist organization.

In the present case, the articles and speeches on account of which the applicant has been detained on remand consists of his article titled “Balyoz’un Anlamı (The Meaning of Sledgehammer)” that was published in Star, daily newspaper, in 2010,his speech in a program broadcasted on Can Erzincan TV the day before the coup attempt, and his article titled “Türbülans (Turbulence)” that was published on his own website on 20 July 2016.

First, it was argued that in his speech titled “Balyoz’un Anlamı”, the applicant aimed at creating a public opinion in accordance with the aims of the organization by making statements praising the Sledgehammer investigation that was stated by the investigation authorities to have been manipulated with fabricated documents.

The article in question was published in Star, national daily newspaper, in 2010. The investigation authorities could not put forward factual grounds leading them to conclude that the article titled “Balyoz’un Anlamı”, which had been written a few years before the “17-25 December investigations” of 2013 –during which it was stated that the real purpose of the FETÖ/PDY exposed– and concerned a case that had been at the top of the agenda at the material time, had been written in accordance with the aims of the FETÖ/PDY.

Second, it was argued that in his speech in a programme broadcasted on Can Erzincan TV the day before the coup attempt, the applicant tried to create a public opinion to stage a coup and explicitly made a call for coup by stating “… There is probably another structure in the Turkish State, which documents and monitors all these developments more than the outside world does. In other words, it is not clear when and how this structure will take its face out of the bag…”. However, the applicant asserted that he did not know that a coup would be made, nor did he make a call for coup, that his abovementioned words were distorted to be regarded as an offence and that the word “structure” in his speech had referred to the State organs.   

Regard being had to the content and context of the applicant’s words, the words of other speakers, and to the thoughts stated therein as a whole, it is difficult to regard, without hesitation, these words as a call for the coup and to acknowledge that the applicant had uttered them, being aware of the coup attempt to take place the next day, for the purpose of bracing the public for it.  Otherwise, meanings beyond the one which may be attributed by an objective observer may be ascribed to the words uttered by the applicant. As a matter of fact, during the speeches delivered through the program, it was forecasted that the Government might be overthrown, at or before the elections to be held two years later, by a new political party which would be established by some of the members of parliament from the ruling part together with another politician. Besides, it must be also borne in mind that the impugned words were uttered through a TV program in a live broadcast, and therefore, it is not possible to re-formulate, change or withdraw the expressions used in such an atmosphere before announcing them to the public. Regard being had to these considerations, the investigation authorities failed to demonstrate the factual basis for the assertion that the applicant had uttered the words in order to pave the way for the coup attempt.

Besides, the applicant was alleged to act in line with the aims of the FETÖ/PDY on account of the article titled “Turbulence”, which was published by the applicant on his own web-site on 20 July 2016.

In the article, the applicant expressed his doubts as to whether the coup attempt had been conducted only by the members of the FETÖ/PDY, as well as criticized the measures taken in the aftermath of the coup attempt. Opinions which are different from the public authorities’ considerations and those of the majority may be considered to constitute an offence with reference to the aim of the person expressing them only when this aim is demonstrated with concrete facts other than the contents of the expressions. However, the investigation authorities failed to demonstrate the facts which would form the opinion that the applicant had acted in line with the aims of the FETÖ/PDY in writing the article. 

In reaching the conclusions that the applicant had acted in line with the aims of the FETÖ/PDY and that he had a link with this organization, the investigation authorities relied on the abstract expression of a witness, one dollar banknote found during the search carried out in the applicant’s house, non-inclusion of the applicant in any investigation conducted by the judicial structure of the FETÖ/PDY, his phone conversations —time and content of which are not specified— with certain persons, and his account in the Bank Asya. However, the investigation authorities failed to demonstrate any concrete fact which would refute the applicant’s defence submissions —that may be regarded as a reasonable version of events—about the allegations pertaining to banknote, bank account, non-inclusion in an investigation and phone conversation. Nor did the witness, in his statement, provide any information about a concrete action performed by the applicant.    

Finally, in his opinion as to the merits, the public prosecutor also relied, as criminal evidence, on certain correspondences exchanged through “Bylock”. These correspondences were exchanged among persons other than the applicant. In these correspondences, there are certain expressions with respect to the applicant. However, given the particular circumstances of the case and the content of the expressions used with respect to the applicant, such expressions cannot per se considered as a strong indication of guilt. 

In this respect, it has been concluded that “the strong indication of guilt” could not be sufficiently demonstrated in the present case.

It has been further considered that nor does Article 15 of the Constitution, which prescribes the suspension and restriction of fundamental rights and freedoms in time of a “state of emergency”, justify the interference with the applicant’s right to personal liberty and security in breach of the safeguards set out in Article 19 § 3 of the Constitution.

For these reasons, it has been concluded that, also in conjunction with Article 15 of the Constitution, the applicant’s right to personal liberty and security was breached.

Alleged Violation of the Freedom of Expression

The freedom of expression enshrined in Article 26 of the Constitution and the freedom of press, another form of the freedom of expression which is subject to special safeguards enshrined in Article 28 of the Constitution, constitutes one of the main pillars of a democratic society and conditions sine qua non for the progress of the society and the improvement of individuals.

In spite of their significance in a democratic society, the freedoms of expression and press are not absolute and may be subject to certain restrictions, provided that the safeguards set out in Article 13 of the Constitution are complied with. Unless it complies with the requirements of Article 13 of the Constitution concerning the restriction of fundamental rights and freedoms, an interference with the freedoms of expression and press would be in breach of Articles 26 and 28 of the Constitution in addition to Article 13. Therefore, it must be determined whether an interference complies with the requirements of being prescribed by law, relying on one or more justified grounds specified in the relevant provisions of the Constitution, and not being contrary to the requirements of a democratic society, as well as the principle of proportionality, which are enshrined in Article 13 of the Constitution.

It is obvious that public authorities have a margin of appreciation in respect of the requirement of being compatible with the requirements of a democratic society and the principle of proportionality. However, in interfering with the freedoms of expression and press as a result of the exercise of this discretionary power, the public authorities must show “relevant and sufficient” grounds. It is for the Constitutional Court to make the final assessment as to whether an interference to be made within this scope complies with the safeguards enshrined in the Constitution. The Constitutional Court makes such an assessment on the basis of the grounds given by the public authorities and especially by the inferior courts.

Regard being had to the questions directed to the applicant by the investigation authorities and the grounds of his detention order, it appears that the applicant is charged principally on account of his articles and speeches. Accordingly, it has been revealed that, irrespective of the content of the articles and the speeches, the applicant’s detention also constitutes a breach of the freedoms of expression and press, along with the right to personal liberty and security. 

In the present case, it is obvious that the interference is prescribed by law. The applicant has been detained on remand for allegedly writing articles and delivering speeches in line with the aims of the FETÖ/PDY, which has carried out activities against the national security and is the organization behind the coup attempt. Therefore, it has been concluded that the interference with applicant’s freedoms of expression and press pursued a legitimate aim in accordance with the grounds specified in the Constitution.

Having a legal basis and achieving a legitimate aim, however, do not suffice for the interference to be in conformity with the Constitution. For an assessment as to whether the applicant’s detention has constituted a breach of the freedoms of expression and press, the present case must be examined also in terms of the requirement of being necessary in a democratic society and the principle of proportionality. The Constitutional Court makes this examination over the detention process and the reasoning of the detention order. 

Regard being had to the above-mentioned findings with respect to the lawfulness of the detention and the fact that the main basis for the accusations against the applicant is his articles and speeches, a severe measure such as detention, which already has been founded to lack the lawfulness above, cannot be regarded as a necessary and proportionate interference in a democratic society in terms of the freedoms of expression and press.

Moreover, a measure interfering with the freedoms of expression and press must meet a pressing social need and must be a measure of last resort. A measure failing to achieve these requirements cannot be considered to comply with the requirements of a democratic society. It cannot be comprehended, from the circumstances of the present case and reasoning of the detention order, on what “pressing social need” the applicant’s freedoms of expression and press were interfered, considering that the applicant expressed some ideas that were embraced by certain segment of the public. On the same ground, it cannot be concluded that the interference was necessary in a democratic society.

Besides, in making an assessment as to the requirement of being necessary in a democratic society and proportionality, possible “deterring effect” of the interferences with the freedoms of expression and press on the applicants and generally on the media must also be taken into consideration. In the present case, it is explicit that the applicant’s being detained on remand without providing any concrete fact, other than the articles published, may also have a deterrent effect on the freedoms of expression and press.

For these reasons, it has been concluded that resorting to detention measure in respect of the applicant mainly on the basis of his articles and speeches and without establishing strong indications of guilt is contrary to the safeguards set out in Articles 26 and 28 of the Constitution with respect to the freedoms of expression and press.  

It has been also concluded that nor does Article 15 of the Constitution, which prescribes the suspension and restriction of fundamental rights and freedoms in time of a “state of emergency”, justify this interference.

For these reasons, it has been held that, also in conjunction with Article 15 of the Constitution, the applicant’s freedoms of expression and press were violated.

Alleged Unlawfulness of the Applicant’s Custody

The Constitutional Court declared the applicant’s allegation regarding the custodial measures inadmissible for non-exhaustion of available remedies.

Alleged Restriction Imposed on the Access to the Investigation File
 
The Constitutional Court declared the applicant’s allegation under this heading inadmissible as being manifestly ill-founded.

Alleged Contradiction of the Magistrate Judge’s Offices with the Requirements of Independent and Impartial Judge 

The Constitutional Court declared inadmissible the applicant’s allegation as to the independence and impartiality of magistrate judgeship as being manifestly ill-founded.

Allegation that Judicial Review of His Detention was carried out without a Hearing

The Constitutional Court declared inadmissible the applicant’s allegation under this heading as being manifestly ill-founded.

Alleged Violation of the Prohibition of Ill-Treatment

The Constitutional Court declared the applicant’s allegation under this heading inadmissible for non-exhaustion of available remedies.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.