Press Release No: Individual Application 25/21

Press Release concerning the Judgment Finding a Violation of the Right to Personal Liberty and Security due to the Failure to Sufficiently Demonstrate the Existence of a Strong Indication of Criminal Guilt, a Prerequisite for Detention

On 21 January 2021, the Plenary of the Constitutional Court found a violation of the right to personal liberty and security safeguarded by Article 19 of the Constitution in the individual application lodged by Özlem Dalkıran (no. 2017/35203).


The Facts

The applicant, a well-known human rights activist, was taken into custody during a meeting held at a hotel in Büyükada (Big Island), İstanbul, within the scope of an investigation conducted by the incumbent chief public prosecutor’s office.  

She was then detained on remand by the magistrate judge for having provided assistance to an armed terrorist organisation by performing activities on its behalf without being a member of that organisation. The applicant’s challenge against her detention order was dismissed with final effect. She thereafter lodged an individual application.

The assize court, holding the first hearing, released the applicant. At the end of the criminal proceedings, the applicant was sentenced -based on the opinion of the prosecutor’s office on the merits- to 1 year and 13 months’ imprisonment for having knowingly and willingly provided assistance to a criminal organisation, while not being part of its hierarchical structure. The applicant’s appeal on points of law and facts was dismissed by the regional court of appeal. The appellate process (on points of law) before the Court of Cassation is still pending.

The Applicant’s Allegations

The applicant maintained that her right to personal liberty and security had been violated due to the unlawfulness of her detention.   

The Court’s Assessment

The applicant was detained on remand for having provided assistance to an armed terrorist organisation. In ordering the applicant’s detention, the incumbent magistrate judge concluded that there had been a strong indication of the applicant’s having committed the imputed offence, relying on the case file as a whole, the statement of an anonymous witness, the contents of the relevant messages, HTS records and the identification reports.

As the applicant was arrested while being at a meeting held in Büyükada, that meeting was also used as evidence supporting the criminal charge against her. In this sense, in the indictment, there were certain witness statements implying that it was a confidential meeting. The indictment also referred to the applicant’s phone conversation with a person arrested and detained within the scope of an operation conducted against the Fetullahist Terrorist Organisation/Parallel State Structure (“the FETÖ/PDY”), a document obtained from the applicant, her WhatsApp messages, as well as to the financial aids provided by the applicant to persons and institutions allegedly having a link with terrorist organisations.

Although the investigation authorities asserted that the meeting held in Büyükada had been a confidential gathering, they failed to refute the applicant’s statements that it had not been indeed a confidential meeting. Besides, there was no claim to the effect that the impugned meeting had been held for aiding terrorist organisations or for espionage, and that the matters discussed at the meeting constituted an offence. Nor was any evidence adduced to that end.

The document obtained from the applicant is apparently the minutes of a meeting held by a formation called as İstanbul Charity Councils (“İstanbul Hayır Meclisleri”). The applicant asserted that this document had been sent to her by e-mail; that she had not formulated it; and that she had not attended the meeting specified in the document. The investigation authorities failed to refute the applicant’s submissions.

The applicant’s phone conversation with the person, who was arrested and detained within the scope of an operation conducted against the FETÖ/PDY, was not considered by the investigation authorities as a strong indication of criminal guilt to show the existence of an organisational link, since there was no finding or claim that these phone conversations had been held within an organisational framework.

As regards the allegation that the applicant’s inability to remember her mobile phone passcode was an indication of an organisational purpose sought to be achieved also by the other accused persons, the applicant noted that the police officers could indeed have access to her mobile phone and that the charges against her were based on the materials obtained from her mobile phone. Regard being had to the investigation authorities’ failure to refute the applicant’s defence submissions, as well as the principle of nemo tenetur (right of an accused not to be compelled to provide incriminating evidence) enshrined in Article 38 of the Constitution, the Court has not found plausible the allegation that such a consideration was an indication of an organisational stance.

The applicant was also alleged to have provided financial assistance to two associations, which had been closed by virtue of a Decree-law, as well as to a person who had been subject to criminal proceedings for his membership of a terrorist organisation. As also noted in the indictment, the said amounts were deposited by the applicant before the closure of the associations and the initiation of the criminal investigation against that person. The investigation authorities did not submit any finding or claim that she had provided these financial aids not for the purpose of humanitarian assistance, but for ensuring their transfer to terrorist organisations or their members.

In this regard, the Court has concluded that in the present case, the investigation authorities failed to sufficiently demonstrate the existence of a strong indication of criminal guilt, a prerequisite for detention, in consideration of the applicant’s defence submissions and the scope of the case file. Having examined the applicant’s case also from the standpoint of Article 15 of the Constitution, which allows for the suspension and restriction of fundamental rights and freedoms in times of a state of emergency, the Court has nevertheless concluded that the safeguards enshrined in Article 19 of the Constitution had been breached in the present case.

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

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