Press Release No: Individual Application 13/18
22.05.2018

PRESS RELEASE CONCERNING THE DECISION ON DETENTION OF ERDAL TERCAN WHO IS A FORMER JUSTICE OF THE CONSTITUTIONAL COURT

On 12 April 2018, the Plenary of the Constitutional Court examined the individual application lodged by Erdal Tercan (no. 2016/15637) and:

- declared the alleged unlawfulness of the applicant’s detention inadmissible for being manifestly ill-founded;

- found no violation of personal liberty and security as regards the allegation of unreasonable length of detention; and

- found a violation of personal liberty and security as regards the allegation that judicial review of his detention was conducted without being brought before a judge/court.

The Facts

On 16 July 2016, following the coup attempt of 15 July 2016, the applicant, who was holding office as a Justice of the Constitutional Court, was taken into custody within the scope of an investigation initiated by the Ankara Chief Public Prosecutor’s Office. On 20 July 2016, the applicant’s detention was ordered for his alleged membership of an armed terrorist organization.

On 25 October 2017, the Ankara Chief Public Prosecutor’s Office issued a motion addressed to the Chief Public Prosecutor’s Office of the Court of Cassation for bringing a criminal case against the applicant alleged to be a member of an armed terrorist organization.

By the indictment of 16 January 2018 issued by the Chief Public Prosecutor’s Office of the Court of Cassation, a criminal case was filed against him before the 9th Criminal Chamber of the Court of Cassation for his alleged membership to an armed terrorist organization.

The case has been pending by the examination date of the individual application, and the applicant is still detained on remand.

The Applicant’s Allegations

Maintaining that his detention was unlawful; that his detention exceeded the reasonable time; and that judicial review of his detention were conducted without being brought before a judge/court, the applicant alleged that his right to personal liberty and security was breached.

The applicant further claimed that challenges to his detention were decided by the magistrate judge’s offices operating in a closed-circuit manner in contradiction of the tenets of independent and impartial judge, which also allegedly constituted a breach of personal liberty and security.

He also asserted that his presumption of innocence, his right to a fair trial, his right to respect for private life and inviolability of the domicile were impaired.

The Constitutional Court’s Assessment

1. Alleged Unlawfulness of Detention

In brief, the Constitutional Court made the following assessments:

In the detention order issued against the applicant, it is stated that the case file contains concrete evidence indicating existence of strong criminal suspicion of his membership to an armed terrorist organization, namely the FETÖ/PDY. Similarly, in the decision dismissing the applicant’s challenge to detention, it is stated that there existed concrete evidence indicating strong criminal suspicion of guilt on the part of the suspects including the applicant.

In the motion issued in respect of the applicant, statements of anonymous witnesses and suspects as well as content of conversations established through ByLock by the other persons are relied on as the evidence pointing to the applicant’s having committed the imputed offence. In addition thereto, the applicant’s cell phone signals are also cited as evidence in the indictment.   

It has been revealed that certain issues regarding the applicant were discussed in the conversations between some persons (Ö.İ., S.E. and B.Y; S.E., B.Y. and R.Ü.) other than the applicant, via ByLock. Relying on several evidence such as the suspects/witnesses’ statements and ByLock conversations, the investigation authorities considered that Ö.İ., who was in fact a teacher, was the civilian imam (head) within FETÖ/PDY responsible for the judicial members; that the rapporteur S.E. was the incumbent of the FETÖ/PDY within the Constitutional Court; and B.Y. and R.Ü. were rapporteurs who were members of the FETÖ/PDY.

In this scope, it has been understood that in the conversations between Ö.İ. and S.E., they made remarks about dissenting opinions in a judgment of the Constitutional Court in an individual application lodged by a journalist detained on the basis of charges related to the FETÖ/PDY. In the conversations between Ö.İ. and B.Y., Ö.İ. requested that A.A., another member of the Constitutional Court, would convey, to the applicant, the former’s opinion as to which candidate(s) would be supported in the election of the deputy president of the Constitutional Court.

It has been revealed that in the conversations between S.E. and B.Y., as regards individual applications lodged by two judges detained on the basis of charges related to the FETÖ/PDY, S.E. noted by mentioning of the applicant’s code name “Ertan” that the applicant was in the board to examine the application; and that as the applicant wanted to address a question, certain rapporteurs who were reported to have connection with the FETÖ/PDY –and whose code names were mentioned during the conversation− were advised to visit him. In this respect, B.Y. affirmatively replied S.E.’s message. It has been further observed that the conversations between S.E. and R.Ü. are also on the same topic. 

In addition, R.Ü., who held office as a rapporteur in the Constitutional Court, submitted in his statements taken by the investigation authorities as suspect that considering the applicant’s approach in the individual applications where any members of the FETÖ/PDY was a party, as well as considering his relations with the rapporteurs who were members of this organization, he reached the opinion that the applicant was also a member of the FETÖ/PDY; that the applicant consulted Rapporteur S.E. –reported to be the FETÖ/PDY’s incumbent within the Constitutional Court– on how he should act; that S.E. (according to his own words) contacted the civil person who was the imam (head) responsible for the Constitutional Court (or the high judicial imam), and the applicant acted in accordance with the instructions he received; and that the applicant was referred to by the code name “Ertan” in the FETÖ/PDY. R.Ü. also noted that as instructed by the FETÖ/PDY, the applicant expressed dissenting opinion in the application related to the judges; and that the rapporteurs who were members of the FETÖ/PDY assisted the applicant in drawing up reasoning of his dissenting opinion.

Besides, one of the anonymous witnesses holding office in the Constitutional Court as a rapporteur stated that he reached the conclusion that the applicant, with whom he previously got acquainted, was a member of the FETÖ/PDY given the applicant’s social relations. And, the other rapporteur indicated that the applicant was a member of this structure.

Lastly, it has been revealed that on various dates the applicant’s cell phone signals were received from the same base station with those of certain persons against whom an investigation is conducted for their alleged position within the FETÖ/PDY as civilian imams; and that on various dates these civilian imams met numerous judges from high courts who were dismissed from office for having connection with the FETÖ/PDY.

Therefore, it appears that the investigation file contains evidence supporting the existence of strong indication of guilt on the part of the applicant.

In the present case, the investigation authorities’ considerations as to the existence of the grounds for detention and as to the proportionality of the applicant’s detention are not unfounded.

For the reasons explained above, the Constitutional Court declared this part of the application inadmissible for being manifestly ill-founded.

2. Allegation of Unreasonable Length of Detention

Regard being had to the characteristics of the organization of which the applicant is an alleged member; its extent within the judiciary and nature of its activities; the difficulty in conducting such investigations; the fact that findings obtained at every stage may require further inquiries; the necessity, inherent in the investigation conducted against the applicant, of establishing and assessing contents of conversations ascertained, through various means, by each of the others persons considered to have connection with the organization; and existence of evidence, which is hard to obtain, such as matching cell phone signals of many persons covering a long period of time, it has been concluded that due diligence was exercised in conducting both the investigation and prosecution processes.

Besides, given the fact that the grounds in the decisions ordering continuation of the applicant’s detention are relevant and sufficient as legitimate reasons for deprivation of the applicant’s liberty, his detention period of about one year and nine months is found reasonable.

Accordingly, the Court found no violation of the personal liberty and security within the context of Article 19 § 7 of the Constitution.

3. Allegation that Judicial Review of the Applicant’s Detention was Conducted without Being Brought before a Judge/Court

The applicant’s continued detention has been ordered by the decisions rendered over the case-file without holding a hearing since 20 July 2016, the date the applicant was detained on remand. During this period, the applicant did not have the opportunity to orally submit, before a judge/court, his claims as to the content or qualification of evidence forming the basis for his detention, his counter-statements as to the considerations and assessments either in favour of or against him as well as requests for his release. Therefore, the applicant’s continued detention for a period of 21 months without a hearing is not in conformity with the principles of “equality of arms” and “adversarial proceedings” in an ordinary time.

His continued detention for a period of 21 months on the basis of the decisions rendered over the case-file without holding a hearing and his not being brought before a judge/court during this period is, in ordinary times, in breach of the safeguards enshrined in Article 19 § 8 of the Constitution. However, it must be further assessed whether the applicant’s detention period is legitimate within the scope of Article 15 of the Constitution which envisages suspension and restriction of exercise of fundamental rights and freedoms in time of emergency periods.  

In this respect, especially whether the interference with the applicant’s right to personal liberty and security by conducting the judicial review of his detention without bringing him before a judge/court is within “the extent required by the exigencies of the situation” or not, within the meaning of Article 15 of the Constitution, must be determined.

In a previous judgment, the Constitutional Court concluded that the judicial review of detentions of the applicants, who were detained on remand with the allegation of having committed offences related to the coup attempt, without a hearing for a period of 8 months and 18 days constituted a measure “proportionate to the exigencies of the situation”. The Court based its judgment on many reasons such as the fact that the investigations conducted against many persons who were considered to have been in connection with the FETÖ/PDY were far more difficult and complex than other criminal investigations; that the judicial authorities were to manage a heavy workload which was unforeseeable; that many members of the judiciary were suspended from office for having connection with the FETÖ/PDY; and that the detainees’ right of access to a court and their opportunity to appeal against the court decisions were safeguarded in the state of emergency as well.

In the present case, the period during which the applicant was not brought before a judge/court for judicial review of his detention (21 months) was longer than twice of the period examined in the relevant judgment.

As a result of the measures taken in the state of emergency period to increase the number of judges and prosecutors, approximately 6 thousand judges and prosecutors have been appointed to office. Therefore, the gap created as a result of dismissal of judges and prosecutors from office during the state of emergency has been filled by the substantial increase in the number of judges and prosecutors.

Furthermore, almost all of the investigations into the coup attempt have been concluded, and prosecution stage has started with respect to the suspects. In addition, a significant part of the investigations against the persons who were detained on remand within the scope of the investigations into the FETÖ/PDY, although they did not have direct connection with the coup attempt, have been concluded. Further, some of the suspects detained on account of the offences related to the FETÖ/PDY have been released or convicted, thereby ending their detention on remand. Accordingly, it can be said that an important progress has been made in the investigations and cases related to the coup attempt and the FETÖ/PDY.

Therefore, in the assessment of whether the judicial review of the applicant’s detention without being brought before a judge/court during approximately 21 months constituted a measure “proportionate to the exigencies of the situation” or not, the changing circumstances of the state of emergency period, besides the length of detention on remand, must also be taken into account.

Given these circumstances, it has been considered that the judicial review of detentions without bringing the suspects before a judge/court and the continuation of their detention on remand without holding a hearing in the course of investigation and prosecution phases related to the FETÖ/PDY and terrorism can be regarded as a measure required by the exigencies of the situation in the period up to 18 months.

However, it must be noted that this assessment has been made by taking into consideration the circumstances prevailing from the beginning of the state of emergency until today and the changes in this respect. Therefore, this assessment must not be regarded as an open licence allowing investigation and prosecution authorities to conduct the judicial review of detentions over case-documents for a period of 18 months.

Nevertheless, regard being had to the fact that the state of emergency still continues and that a large part of the cases related to the coup attempt and the FETÖ/PDY are pending, the longer detention periods without a hearing compared to non-emergency times cannot be automatically regarded as a measure not required by the exigencies of the situation.

The Court will make an assessment in each application by taking into consideration the circumstances of the case, the period during which the review of detentions was conducted without holding a hearing, and the developments in the state of emergency period.

In the present case, the fact that the applicant, who is detained on remand for alleged membership of an armed terrorist organization (FETÖ/PDY), has not been brought before a judge/court within the scope of the judicial review of his detention for more than 18 months is not regarded as a measure required by the exigencies of the situation.

Therefore, the interference with the applicant’s personal liberty and security by the extension of his detention over case-documents without being brought before a judge/court for a period of 21 months, which is in breach of the safeguards provided in Article 19 § 8 of the Constitution, cannot be considered to be justified under Article 15 of the Constitution.

For the reasons explained above, the Constitutional Court has held that the applicant’s right to personal liberty and security has been violated due to the judicial review of his detention without being brought before a judge/court.

4. Other Allegations

The Constitutional Court has declared the application inadmissible for being manifestly ill-founded in so far as it is related to the applicant’s allegations that his presumption of innocence has been violated and that his right to personal liberty and security has been violated due to his not being able to effectively enjoy his right to appeal against his detention on remand. The Court has also found the applicant’s allegations concerning the right to a fair trial, the right to respect for private life, and the right to inviolability of the domicile inadmissible for non-exhaustion of legal remedies.

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

The Constitutional Court of the Republic of Turkey © 2015
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