Individual Application

The Facts

The assize court (court) reviewed the applicant’s detention on remand, within the scope the proceedings in which he was detained on remand for several offences enumerated in the Anti-Terror Law no. 3713, first over the case file on two different dates and then by holding a hearing on 6 March 2020, at the end of which it ordered the continuation of the applicant’s detention on remand. Following the aforementioned hearing, the court, without waiting for the date of the next hearing, held a hearing ex officio where it adjourned the future hearings for an indefinite period of time within the scope of the measures taken against the pandemic. At the end of the hearing, which was held in the absence of the applicant and his defence counsel, the court once again ordered the continuation of the applicant’s detention on remand. During the subsequent proceedings, the court reviewed the applicant’s detention over the case file on different dates in accordance with its previous decision on which it insisted.

The applicant lodged an individual application on 14 May 2020. The court held a hearing on 2 June 2020 for the review of the applicant’s detention. While the applicant’s defence counsel attended the hearing in person, the applicant attended it via the Audio-Visual Information System (“the SEGBIS”). At the end of the hearing, the court again ordered the continuation of the applicant’s detention on remand. The case has been still pending before the court of first instance on the date of examination of the applicant’s individual application.

The Applicant’s Allegations

The applicant claimed that his right to personal liberty and security had been violated due to the review of his detention without being brought before a judge/court.

The Court’s Assessment

The regulations regarding the measures taken due to the pandemic included no amendment to the periods defined for the review of detention on remand. Thus, the review of the applicant’s detention on remand must be carried out by holding a hearing every 90 days at the latest in accordance with the provisional Article 19 of Law no. 3713, which was added by Article 13 of Law no. 7145.

In the present case, the applicant appeared before a judge 2 months and 26 days after 6 March 2020 that was the date of the last hearing. Thus, it is obvious that the applicant’s detention on remand was reviewed through a hearing held within the statutory period of 90 days, which is not explicitly in breach of the law. However, in the examination of the complaints regarding the duration of protection measures, the Court should not only take into consideration the periods specified by law, but it should also make a constitutional assessment as to whether the periods specified by law or the period in a given case is reasonable. As a matter of fact, in its many judgments, the Court has made an assessment on the reasonability of the periods elapsed in given cases in their particular circumstances. On the other hand, in the constitutionality review of the provision relied on for the alleged interference in the present case, the Court concluded that the contested provision was incompatible with the safeguard envisaging that the claims and defences regarding detention on remand should be raised before a court within a reasonable time, thus annulling the provision finding it unconstitutional.

Although holding a hearing where parties attend in person may be inconvenient for the attendants and in terms of public health, holding hearings via SEGBİS cannot be said to be equally inconvenient. As a matter of fact, the applicable regulations stipulated no restriction on the holding of hearings via SEGBİS regarding detainees. It has also been observed that the applicant did not raise any objection against the holding of hearings via SEGBİS.

In conclusion, during the impugned period, the applicant could not verbally raise, before the judge/court, his objections to challenge his detention on remand, his claims regarding the content or characterization of the evidence adduced against him, his statements against the opinions and assessments in favour of or against him, as well as his requests for release. Therefore, it has been concluded that the review of the applicant’s detention on remand for more than 2 months (2 months and 26 days) without holding a hearing did not comply with the principles of equality of arms and adversarial proceedings in the ordinary period.

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