Individual Application

The Facts

The applicant, who was a guardian at a penitentiary institution, was indicted for membership of an armed terrorist organisation. The incumbent assize court sentenced the applicant to imprisonment and ordered the continuation of his detention on remand. The Adıyaman Chief Public Prosecutor’s Office launched an investigation against M.Ş., who worked at the same penitentiary institution between 2009 and 2015, on the charge of membership of an armed terrorist organization. In his statement to the police, M.Ş. indicated that the applicant had also participated in the religious talks (sohbet) organised by H.K., who worked as a teacher at a private teaching institution, and identified the applicant and Mu.Ş. from photographs as the ones who had participated in the said talks. The applicant’s subsequent appeal was rejected on the merits by the regional court of appeal that ordered the continuation of the applicant’s detention on remand.

The Şanlıurfa Chief Public Prosecutor’s Office (“the prosecutor’s office”), conducting an investigation against Mu.Ş. for alleged membership of an armed terrorist organization, requested to hear the applicant as witness in the case of Mu.Ş. and H.K., via the Audio-Visual Information System (“SEGBİS”) in line with M.Ş.’s statements and identifications. Although the applicant took an oath as a witness, he refused to testify. The prosecutor’s office requested the 3^rd Magistrate Judge to place the applicant in disciplinary detention on the grounds that he refused to testify despite his not being among the parties who could refrain from testifying. Upon the request of the prosecutor’s office, the 3^rd Magistrate Court took the applicant’s statement via SEGBİS. Denying the content of the report issued by the prosecutor’s office, the applicant stated that he exercised his legal right to refrain from testifying, since otherwise it might have consequences against him. The 3^rd Magistrate Judge ordered the applicant’s disciplinary detention for thirty days on the grounds that he had refrained from testifying in the absence of a legal ground, and it also ordered his immediate release if he testified. The 4^th Magistrate Judge dismissed the applicant’s appeal to the said decision. The applicant’s subsequent appeal was also dismissed by the Court of Cassation, and his conviction became final.

The Applicant’s Allegations

The applicant claimed that his right to personal liberty and security had been violated, arguing that he had been subjected to disciplinary detention for being compelled to testify.

The Court’s Assessment

The right to remain silent and not to incriminate oneself is enshrined in Article 38 § 5 of the Constitution, entitled “Principles relating to offences and penalties” which provides “No one shall be compelled to make a statement that would incriminate himself/herself or his/her legal next of kin, or to present such incriminating evidence”. This right is also one of the guarantees of the right to a fair trial laid down in Article 36 of the Constitution. The legislative intent of Article 38 § 5 of the Constitution is to prohibit inhuman treatment and to leave no room for any form of treatment likely to constitute torture.

The prohibition laid down in the aforementioned provision also prevents those who are not yet under a criminal charge - for the risk of facing a criminal charge - or those who are already under a criminal charge -for the risk of facing a new criminal charge or supplementing existing charges- from making self-incriminating statements or adducing self-incriminating evidence. Therefore, pursuant to Article 38 § 5 of the Constitution, anyone, even if he/she is a witness, should not be compelled to give a statement in cases where his/her statement may constitute/result in criminal charges against him/her, or may add new charges to the existing ones, or may be used to prove them.

In the present case, on the date when the applicant was requested to be heard as a witness, his conviction had not been finalised yet. Considering that one of the grounds underlying the applicant’s conviction was that he had invited the members of the organisation to the organisational meetings made under the guise of religious talks and collected money from them under the name of donation etc., that the applicant denied the accusations against him during the proceedings, and that the incident for which the applicant was requested to testify was related to the meetings the applicant had allegedly participated in, it is obvious that his statement as a witness might be used against him in the course of the ongoing proceedings. Moreover, the said statement may be relied on for a new criminal charge against the applicant. As a matter of fact, there is no legal arrangement in the Turkish legal system granting judicial immunity to the witness, thereby preventing the use of his/her statement during the ongoing criminal proceedings or the bringing of new charges against him/her.

Thus, it is incompatible with the requirements of the right to remain silent and not to make self-incriminating statements that a witness is compelled to testify despite ongoing charges or trials against him/her or facing disciplinary detention. Accordingly, in the present case, there was no legal obligation likely to be imposed on the applicant to testify as a witness before the prosecutor’s office. Therefore, it has been concluded that the impugned interference with the applicant’s right to personal liberty and security was devoid of a legal basis.

Consequently, the Court has found a violation of the right to personal liberty and security.