Press Release No: Individual Application 49/22

Press Release concerning the Judgment Finding a Violation of the Right to Personal Liberty and Security due to the Unlawfulness of the Detention

On 15 March 2022, 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 Sultan Kaya (no. 2020/29355).

The Facts

The applicant and H.B.Y. were arrested and taken into custody by the law enforcement officers on the ground that they had unfurled a banner at the exit of a subway station located nearby the presidential residence in İstanbul, chanted slogans in favour of E.T. and A.Ü., persons against whom there was an ongoing investigation/prosecution for membership of a terrorist organisation, and continued to protest despite the warnings. 

The applicant was indicted on charges of being a member of an armed terrorist organisation and contravening the Law no. 2911 on Meetings and Demonstration Marches. The 11th Magistrate Judge ordered the applicant’s detention on remand for the imputed offences.

Upon the challenge by the applicant to her detention order, the 12th Magistrate Judge dismissed her challenge with no right of appeal. The applicant’s request for release was also rejected by the 2nd Magistrate Judge. The challenge raised by her with respect thereto was dismissed, with no right of appeal, by the 3rd Magistrate Judge.

A criminal case was filed against the applicant on charges of being a member of an armed terrorist organisation, disseminating propaganda in favour of a terrorist organisation and contravening the Law no. 2911. At the end of the proceedings, the incumbent court ordered her release on conditional bail, the condition being that she could not travel abroad. At the end of the proceedings, the incumbent court acquitted her of the imputed offences and ordered the discontinuation of the conditional bail. The chief public prosecutor’s office appealed the decision in so far as it related to the applicant’s acquittal in terms of the offence of contravening the Law no. 2911, whereas the applicant appealed it in so far as it related to the counsel’s fee.

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

In view of the investigation documents pertaining to the applicant, it has been observed that the essence of the charges giving rise to the applicant’s detention was her unfurling a banner and chanting slogans. The investigation authorities asserted that these acts had been performed in line with the orders and instructions of the terrorist organisation and for the purposes of serving the aim pursued by the organisation and disseminating its propaganda. According to the investigation authorities referring to the activities performed by the formations associated with the terrorist organisation, the death fast embarked on by E.T. and A.Ü., whose names were cited in the banner held by the applicant, had been no longer an attempt to claim rights but degenerated into an activity serving the purposes of the terrorist organisation, and the applicant’s impugned acts in support of these persons were embraced through the posts in a social media account considered to have a relation with the terrorist organisation.

It is evident that hunger strikes and sit-down strikes, which may be considered under certain circumstances as one of the aspects of the freedom of expression, or the acts performed by third persons in support of these strikes such as chanting slogans, making a press statement and unfurling a banner must not be per se subject-matter of a charge. However, in cases where it is established that the performance of such acts constitutes a terror-related activity, or through these acts, the methods of the terrorist organisation involving force, violence and threat are praised, justified or promoted, these acts may be classified as an offence.

In this context, in considering that the applicant’s acts giving rise to her detention were performed in line with the instructions and aims of the said terrorist organisation, the investigation authorities generally relied on the support given for the impugned acts in certain platforms considered to have had relation with the terrorist organisation. The investigation authorities, however, failed to demonstrate any concrete fact or finding that the applicant had performed these acts within the scope of an organisational relationship or the applicant had acted in this way in pursuance of the organisation’s stance.

On the other hand, the applicant stated that she was the aunt of E.T. who embarked on a death strike, and had performed these acts so as to support her nephew. She further noted that she had performed these acts not to serve an organisational purpose but merely so as to claim rights. Therefore, it has been observed that the investigation authorities failed to demonstrate with any concrete facts that the applicant had carried out the impugned acts in line with the instructions of the said organisation or she had a link with the said organisation.

In this sense, the Court has concluded that in consideration of the applicant’s defence submissions and the scope of the case-file, the strong indication of criminal guilt, necessary for justifying her detention, could not be established 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.