Press Release No: Individual Application 10/18
16.03.2018

PRESS RELEASE CONCERNING THE JUDGMENT FINDING A VIOLATION OF RIGHT TO PERSONAL LIBERTY AND SECURITY DUE TO FAILURE TO REDRESS THE PREVIOUSLY FOUND VIOLATION AND ITS CONSEQUENCES

On 15 March 2018, 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 second individual application lodged by Şahin Alpay(no. 2018/3007) on the grounds briefly explained below. The Constitutional Court remanded the case for release of the applicant in order to redress the violation and its consequences.

Pursuant to Paragraph 3 of Article 19 of the Constitution that safeguards the right to personal liberty and security, the prerequisite for detention is the existence of “a strong indication of guilt.” Therefore, it is a constitutional requirement that this prerequisite must be examined in the individual applications lodged on account of the alleged unlawfulness of detention. The Constitutional Court’s review in this respect is limited to the assessment of the lawfulness of the applicant’s detention on remand, independently of the possible results of the proceedings. Therefore, the previous judgment rendered with respect to the applicant cannot be considered to have included an assessment as to the merits of the criminal proceedings.

In addition, pursuant to Article 153 of the Constitution, it is clear that the Constitutional Court’s judgment with respect to the applicant is final and has a binding effect on everyone, including judicial authorities. Accordingly, the inferior courts’ duty is not to speculate on the scope of the duties and jurisdictions of the Constitutional Court but to redress the found violation and its consequences.

In its previous judgment finding a violation, the Constitutional Court concluded that the investigation authorities were not able to sufficiently demonstrate a strong indication of guilt on the part of the applicant. Following the Constitutional Court’s such judgments finding a violation, the inferior courts must release applicants against whom the prerequisite of detention could not be demonstrated. There is no other way to redress such violation and its consequences save very exceptional cases where “a strong indication of guilt” would be demonstrated on the basis of new facts that had not been assessed in the Constitutional Court’s judgment finding a violation. In the present case, the inferior courts have not released the applicant following the Constitutional Court’s judgment finding a violation nor have they demonstrated the existence of the abovementioned exceptional case.

The Facts

After the coup attempt of 15 July 2016, within the scope of an investigation conducted against the media structure of the Fetullahist Terrorist Organization/Parallel State Structure (FETÖ/PDY) stated to be the organization behind the coup attempt, the applicant was detained on remand for alleged membership of an armed terrorist organization.

In the first individual application lodged by the applicant, the Plenary of the Constitutional Court found on 11 January 2018 a violation of the applicant’s right to personal liberty and security, as well as, his freedoms of expression and press.

Regarding the alleged unlawfulness of the applicant’s detention on remand, the Court concluded that the investigation authorities could not sufficiently demonstrate a strong indication that the applicant committed an offence, which was a prerequisite for detention as set forth in Article 19 of the Constitution. In the judgment finding also violations of the applicant’s freedoms of expression and press, the Court mainly relied on its determinations as to the alleged unlawfulness of the applicant’s detention on remand.

The applicant’s requests for release and his appeals to this end were dismissed by the inferior courts. In their decisions, the courts mainly relied on the assessments “that the Constitutional Court cannot assess the evidence or the merits of the case or the issues to be considered in appellate review, nor can it make a substantive review, that making an examination as to the merits of the case results in “usurpation of power”, that the violation judgment delivered by overstepping legal mandate cannot be considered to be final nor binding, and consequently, it would not result in the applicant’s release, if otherwise, it would contradict the legal principles concerning the courts’ independence and mandating that no order or instruction could be given to the courts”.

The applicant submitted a request for release following the Constitutional Court’s judgment. However, his request was rejected. Therefore, he lodged another individual application on 1 February 2018.

The Applicant’s Allegations

The applicant claimed that his right to personal liberty and security, as well as, his some other rights and freedoms were violated due to the inferior courts’ failure to implement the judgment of the Constitutional Court.

The Constitutional Court’s Assessment

In brief, the Constitutional Court made the following assessments:

According to Article 18 § 3 of the Constitution and Article 45 § 1 of Law no. 6216 on the Establishment and Rules of Procedures of the Constitutional Court, dated 30 March 2011, every person may apply to the Constitutional Court alleging that the public authorities have violated any one of her/his fundamental rights and freedoms secured under the Constitution which falls into the scope of the European Convention on Human Rights and supplementary protocols thereto, which Turkey is a party to.

In his previous individual application, the applicant had maintained that he had been detained on remand without a strong indication of guilt on the part of him, which had been in breach of Article 19 of the Constitution.

The right to personal liberty and security falls into the common protection area of Article 19 of the Constitution and Article 5 of the European Convention on Human Rights. Therefore, there is no doubt that every person can lodge an individual application with the Constitutional Court for the alleged violation of her/his personal liberty and security due to detention and that the Court must adjudicate such complaints.

In its previous judgment, the Constitutional Court examined the applicant’s abovementioned allegation under Article 19 § 3 of the Constitution. It is clearly provided therein, by the phrase “Individuals against whom there is strong evidence of having committed an offence may be arrested…”, that one of the constitutional safeguards against detention is the existence of “a strong indication of guilt”. Accordingly, it is an obligation for the Constitutional Court to examine whether there exists “a strong indication of guilt” or not.

Essentially, in every concrete case, it falls in the first place upon the incumbent courts deciding detention cases to determine whether the prerequisite for detention, i.e. the strong indication of guilt, exists. However, it is the Constitutional Court’s duty to review such determinations of lower courts. The Constitutional Court’s review pertains especially to the detention process and the grounds of detention order.

In its previous judgment, the Constitutional Court reviewed the case in accordance with the abovementioned scope and method. Therefore, the Court’s review cannot be regarded as “the review of an issue to be respected in terms of legal remedies” or “an assessment as to legitimacy”.

Furthermore, as also stated in the previous judgment, the Constitutional Court’s review in this respect is limited to the assessment of the lawfulness of the applicant’s detention on remand, independently of the possible results of the proceedings. Therefore, the judgment in question cannot be considered to have included an assessment as to the merits of the criminal proceedings against the applicant.

In addition, pursuant to Article 153 § 1 of the Constitution, the judgments of the Constitutional Court are final. According to the sixth paragraph of the same Article, these judgments shall be binding on the legislative, executive and judicial bodies, administrative authorities, and natural and legal persons. Therefore, there is no doubt that the Constitutional Court’s judgment finding a violation with respect to the applicant is final and binding. Accordingly, the Constitutional Court’s judgments finding a violation cannot be subject to constitutional or legal review by another authority. The contrary assessments of the inferior courts making a decision about the applicant’s requests for release lack any constitutional or legal basis.

Where the Constitutional Court found a violation and ordered the redress of the violation and its consequences in accordance with Article 50 of Law no. 6216, what is expected from the inferior courts is not to assess the scope of duties and powers of the Constitutional Court but to redress the violation and its consequences. This cannot be construed as an order or instruction directed to courts within the meaning of Article 138 of the Constitution but rather the fulfilment of the right of access to a court in a state of law.  Indeed, Article 153 of the Constitution explicitly states that the judgments of the Constitutional Courts are binding on judicial authorities as well.

In its previous judgment finding a violation, the Constitutional Court concluded that a strong indication of guilt could not be sufficiently demonstrated by the investigation authorities.

Following the Constitutional Court’s such judgments finding a violation, the inferior courts must release the applicant against whom the prerequisite of detention could not be demonstrated. There is no other way to redress the violation and its consequences, save very exceptional cases where “a strong indication of guilt” can be demonstrated on the basis of new facts other than those that had been relied for detention and therefore had neither been assessed in the Constitutional Court’s judgment finding a violation. It must be also stressed, however, the margin of appreciation afforded to the inferior courts in this respect is very limited compared to the initial detention order. In such cases, final assessment as to whether “a strong indication of guilt” has been demonstrated or not on the basis of new facts falls upon the Constitutional Court.

In the present case, the inferior courts have not released the applicant following the Constitutional Court’s judgment finding a violation, nor have they demonstrated the existence of the abovementioned exceptional case.

Therefore, it is understood that the inferior courts have failed to redress the violation, found by the Constitutional Court with respect to the applicant, as well as its consequences.

In this respect, in the absence of a strong indication of guilt on the part of the applicant, continuation of his detention on remand violates the safeguards provided in Article 19 of the Constitution.

It is concluded that the applicant’s right to personal liberty and security has been violated due to non-implementation of the Constitutional Court’s judgment on the applicant’s detention on remand, in a manner also contradicting the safeguards of the right of access to a court.

The applicant is still detained on remand. Considering the nature of the violation found, there is no other way than releasing the applicant in order to redress the violation and its consequences. Therefore, the judgment must be remanded to the trial court for release of the applicant in order to redress the violation and its consequences.

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

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