Individual Application 86/19

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

On 3 July 2019, 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 applications lodged by Mustafa Açay (no. 2016/66638) and E.A. (no. 2016/78293). 

The Facts

The applicants, public prosecutors holding office in different provinces, were taken into custody within the scope of the investigations initiated, following the coup attempt of 15 July, into the offences related to the Fetullahist Terrorist Organization and/or the Parallel State Structure (FETÖ/PDY). Their detention was then ordered by the incumbent magistrate judge for allegedly having attempted to overthrow the constitutional order and their alleged membership to an armed terrorist organization. The applicants’ challenges against their detention orders were dismissed. They subsequently lodged an individual application. Meanwhile, they were acquitted during the proceedings conducted against them before the assize court. Their acquittal decisions were under appellate review at the date when their individual applications were lodged with the Court.  

The Applicants’ Allegations

The applicants maintained that their rights to personal liberty and security had been violated due to the unlawfulness of their detention.

The Court’s Assessment

In the present cases, the Court discussed whether there was strong indication of applicants’ guilt which is the pre-requisite of detention measure.  In ordering their detention on remand, the incumbent court relied on the orders whereby the applicants had been suspended from their offices for having link with the FETÖ/PDY as well as on the ongoing threat resulting from the state of emergency prevailing throughout the country due to the coup attempt.

Regard being had to the nature of the measures of dismissal from public office or profession, which were taken at the time of state of emergency proclaimed following the coup attempt, as well as to the conditions sought for application of such measures, the applicants’ suspension and/or dismissal from office cannot be per se considered as a strong indication of guilt.

Relying on certain witnesses’ statements, the investigation authorities charged the applicants with having committed the imputed offences. In this respect, several witnesses were heard during the proceedings.

There were no witness statements which demonstrated, directly and with concrete evidence, the applicants’ link or relation with the FETÖ/PDY. Besides, certain witnesses stated that they had never witnessed to the applicants’ link, relation or connection with that organization. Some of them even noted that the applicants were against the FETÖ/PDY.

It has been accordingly concluded that the findings and assessments within the scope of the investigation and prosecution documents did not sufficiently demonstrate the strong indication of the applicants’ having committed an offence. 

It has been considered that the applicants’ detention on remand in the absence of strong indication of guilt will be, in ordinary times, in breach of the safeguards inherent in the right to personal liberty and security enshrined in Article 19 of the Constitution.

It has been accordingly discussed whether the impugned detention measure was legitimate under Article 15 of the Constitution which allows for suspension and restriction of the exercise of fundamental rights and freedoms in times of a state of emergency.

Even in states of emergency declared for any reason whatsoever, detention of individuals in the absence of a strong indication of their guilt cannot be considered as a measure required by the exigencies of the situation.  In the present cases, the investigation authorities ordered the applicants’ detention on remand without demonstrating with concrete evidence that they had committed an offence.

It has been therefore concluded that the impugned interference with the applicants’ rights to personal liberty and security was not justified under Article 15 of the Constitution, either. 

Consequently, the Court has found a violation of the right to personal liberty and security safeguarded by Article 19 of the Constitution.

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