Press Release No: Individual Application 3/21
Press Release concerning the Judgment Finding a Violation of the Right to Personal Liberty and Security due to the Measure Entailing the Obligation not to Leave Residence
On 3 December 2020, the First Section 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 Şahin Alpay (3) (no. 2018/10327).
The applicant was detained on remand for his alleged membership of an armed terrorist organization within the scope of an investigation conducted into the media structure of the Fetullahist Terrorist Organisation/Parallel State Structure (FETÖ/PDY), following the coup attempt of 15 July 2016.
Upon the first individual application lodged by the applicant, the Plenary of the Court held on 11 January 2018 that the applicant’s right to personal liberty and security as well as freedoms of expression and the press had been violated. However, the applicant’s subsequent requests for release and his challenges against the court decisions dismissing his requests were all rejected.
The applicant, whose requests for release were dismissed, filed a new individual application on 1 February 2018, arguing that the Constitutional Court's decision was not enforced. The Court held on 15 March 2018 that the inferior courts failed to redress the violation it had previously found and its consequences, and that the applicant’s right to personal liberty and security had been violated due to his continued detention despite the relevant judgment finding a violation. On 16 March 2018 the assize court released the applicant on conditional bail, banning him to go abroad and to leave his residence (house arrest). The applicant's subsequent request to lift the measure requiring him not to leave residence was dismissed. The applicant therefore filed another individual application on 16 April 2018.
On 11 May 2018 the impugned measure was lifted, and the applicant was granted another type of conditional bail requiring him to report to the nearest police station for signature on Sundays between 8.00 a.m. and 10.00 p.m.. On 6 July 2018 the assize court sentenced the applicant to 8 years and 9 months’ imprisonment for membership of an armed terrorist organisation. The applicant’s subsequent appeal against the assize court’s decision was dismissed on the merits by the regional court of appeal. On 24 September 2020 the Court of Cassation quashed the imprisonment sentence imposed on the applicant.
The Applicant’s Allegations
The applicant claimed that his right to personal liberty and security had been violated, stating that although the Court had ordered that the violation and its consequences would be redressed through his release, the inferior court granted him conditional bail requiring him not to leave residence.
The Court’s Assessment
In the present case, following the second judgment of the Constitutional Court finding a violation, the inferior courts released the applicant; however, the latter granted the applicant conditional bail requiring him not to leave residence. In this case, it should first be determined whether the measure entailing the obligation not to leave residence constitutes an interference with the right to personal liberty and security.
In one of its recent judgments (no. 2017/32052) whereby it examined the measure entailing the obligation not to leave residence within the scope of the right to personal liberty and security, the Court concluded that given its nature and the way of its application, the impugned measure constituted an interference with the right to personal liberty and security. The Court also set therein the criteria to be considered in the examination of the lawfulness of the impugned measure.
In its first judgment finding a violation regarding the applicant, the Court concluded that the investigation authorities had failed to demonstrate sufficiently the existence of a strong indication of guilt, which was a prerequisite for detention as stipulated in Article 19 of the Constitution. As for the second judgment finding a violation, the Court clearly indicated the steps required to be taken to put an end to the violation.
In the present case, the incumbent courts failed to demonstrate the strong indication of the applicant’s guilt as a prerequisite for the measure entailing the obligation not to leave residence. Hence, the applicant was subjected to the impugned measure, which led to the continued deprivation of his liberty in the absence of strong indication of his guilt.
It appears that the inferior courts failed to redress the violation and its consequences with regard to the applicant. As a matter of fact, in case of a judgment finding a violation of any fundamental right and freedom within the scope of individual application, it is necessary to restore, to the fullest extent possible, the situation existing before the breach in order to put an end to the breach and to make reparation for its consequences.
In the present case, the deprivation of the applicant’s liberty continued, thereby the applicant was not entitled to a restoration to the situation existing before the breach. Accordingly, the inferior courts failed to redress the violation and its consequences, which had previously been found by the Court.
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.