PRESS RELEASE CONCERNING THE DECISION OF SÜLEYMAN BAĞRIYANIK AND OTHERS ON THE RIGHT TO FREEDOM AND SECURITY OF PERSON AND THE RIGHT TO PRESUMPTION OF INNOCENCE
On 16/11/2016, the Second Section of the Constitutional Court held with regard to the individual application lodged by Süleyman Bağrıyanık, Ahmet Karaca, Özcan Şişman and Aziz Takcı (application no. 2015/9756) that the applications must be declared inadmissible for being manifestly ill-founded.
At the relevant times, Süleyman Bağrıyanık was the chief public prosecutor of Adana; Ahmet Karaca was the acting chief public prosecutor of Adana (authorized by Article 10 of the Counter-Terrorism Act) and Aziz Takcı and Özcan Şişma were the chief public prosecutors of Adana (authorized by Article 10 of the Counter-Terrorism Act).
a. The Incident Taking Place on 1/1/2014
On 1/1/2014 at 03:29 p.m., a denunciation was made to the Hatay 156 Gendarmerie Emergency Call Line, and it was reported that weapons would be supplied to a terrorist organization by trucks and automobiles travelling to Kilis through Reyhanlı-Kırıkhan-İslahiye route.
The truck and automobile specified in the denunciation was stopped by the traffic police. After the person in the truck had informed that he had been a member of the National Intelligence Organization (the MIT) and had shown his task card, the relevant units of the Security Directorate and the Gendarmerie were informed of the situation. Thereupon, the police officers left the incident scene.
The Kırıkhan Chief Public Prosecutor reported the incident to the applicant, Özcan Şişman, by phone. Thereafter, an investigation was initiated by the applicant, Aziz Takcı, for the offence of “supplying weapons to terrorist organizations”, and a search warrant was accordingly issued.
The gendarmerie officers who were present in the incident scene obtained the information as a result of the negotiations they held that the persons were members of the MIT; that two vehicles belonged to the MIT; and that all materials in the truck were of the nature of the State’s secret. The gendarmerie officers saw the identity cards belonging to the persons in the vehicle and issued by the MIT. Upon being informed of this situation, the applicant Özcan Şişman stated that he would arrive in the incident scene within the shortest period, and that necessary measures would continue to be taken around the truck. He also instructed the officers not to execute the search warrant before his arrival to the incident scene.
When the applicant arrived in the incident scene, he instructed the police officers who had previously arrived in the incident scene upon his instruction to search the truck. As the MIT personnel resisted the police officers, the truck could not be searched. Thereupon, the police officers left the incident scene in line with their superiors’ instruction. Accordingly, the MIT personnel left the incident scene by the truck and automobile in question. Any search could not be conducted in the truck.
On the other hand, upon the stopping of the truck, phone conversations were held between the Minister of Justice, the Undersecretary of the Minister of Justice and the applicant, Süleyman Bağrıyanık. According to the statements of the applicant, he was informed during these conversations that this truck was under the control of the MIT; that any search could not be carried out in the truck without the permission of the Prime Ministry as per the special provision in the Law on the National Intelligence Organization; and that the only step to be taken was to make an establishment concerning the fact that the truck was under the control of the MIT and the officers inside the vehicle were the members of the MIT.
b. Incident Taking Place on 19/1/2014
On 19/1/2014 at 07:29 a.m., a denunciation was made to the Adana 156 Gendarmerie Emergency Call Line. It was thereby reported that three trucks loaded with explosive were travelling from Ankara to Adana; and that these trucks would arrive in Adana within one or two hours.
The applicant, Aziz Takcı, issued a search warrant by considering that there might be a link between the denunciation and the previous incident where the MIT truck had been stopped.
It was decided that the search would be carried out at the Sirkeli highway toll booths located in the Ceyhan district of Adana. Accordingly, three trucks with the loads belonging to the MIT and one accompanying automobile were stopped at the search point. It was established by the gendarmerie officers that the persons in the vehicles were the members of the MIT and the loads in the trucks belonged to the MIT. The applicant, Aziz Takcı, was informed of this situation. He reiterated his instruction concerning the search to be conducted in the trucks.
The gendarmerie officers started to carry out the search; however, the MIT officers resisted the search. Nevertheless, one of the trucks was searched while the other two trucks were started to be re-searched upon the instruction of Aziz Takcı arriving in the incident scene.
In the course of the search, the Adana Governor, the Security Director, the Provincial Gendarmerie Commander and the MIT Regional Head arrived in the incident scene. At the end of the conversations between the applicant, Aziz Takcı, and the above-mentioned authorities, the registration numbers of the MIT personnel were determined and written into the minute. Moreover, it was decided that the applicant would be provided with one copy of the letter issued by the Adana Regional Administration of the MIT and addressing to the Adana Governorship. Thereupon, the search conducted in the trucks was discontinued, and the trucks were delivered to the MIT officials.
c. Investigation into the Incidents
The Undersecretariat of the MIT notified, in written, the Adana Chief Public Prosecutor’s Office of the fact that the officers charged in both incidents and the vehicles had engaged in these activities within the scope of the activities carried out in line with the national interests of the country by virtue of the duties and powers vested in the Undersecretariat by the Law on the National Intelligence Organization. The Chief Public Prosecutor’s Office rendered a decision of non-prosecution in respect of the MIT personnel taking role in these incidents on the grounds that “the activities performed by the vehicles in question were pertaining to the activities carried out within the scope of the duties of the MIT and therefore, these incidents were not unlawful and did not constitute an offence”.
d. The Applicants’ Detention
The High Council of Judges and Prosecutor (“the HCJP”) granted permission for investigation in respect of the applicants. The Office of Chief Inspector of the HCJP applied to the 2nd Chamber of the Tarsus Assize Court on 5/5/2015 and requested that an arrest warrant would be issued in respect of the applicants for the offences of attempting to overthrow the Government of the Republic of Turkey or to preventing it from performing its duties partially or wholly by use of coercion and violence and of obtaining and disclosing information pertaining to the security and political activities of the state. The Court accepted this request. On 8/5/2015, the court ordered the detention of the applicants, who had been questioned, for the imputed offences.
At the end of the investigation conducted against the applicants, the Second Chamber of the HCJP found it necessary to carry out a prosecution. It was also decided that the applicants would be dismissed from their office; and that they would be suspended from their office until the decision became final.
By the indictment dated 3/7/2015 of the Tarsus Chief Public Prosecutor’s Office, it was requested that the applicants would be sentenced as they had committed the offences of attempting to overthrow the Government of the Republic of Turkey or to preventing it from performing its duties partially or wholly by use of coercion and violence; obtaining information pertaining to the security of the state; and disclosing information pertaining to the security and political interests of the state. The proceedings against the applicants were held before the 16th Criminal Chamber of the Court of Cassation. The proceedings were still pending by the date when the individual application was examined, and the applicants are still detained on remand.
On the other hand, the applicants were dismissed from their profession for having connection or relation with the FETÖ/PDY (the Fetullahist Terrorist Organization / the Parallel State Structure) by virtue of the decision dated 24/8/2016 and taken by the Plenary Assembly of the HCJP as per Article 3 of the Decree Law no. 667 on the Measures Taken under the State of Emergency declared throughout Turkey following the coup attempt at the night of 15/7/2016.
The Applicants’ Allegations
The applicants maintained that in spite of being a judge of the first degree and non-existence of the conditions of being caught red-handed, they had been detained on remand by a court, which had not been on duty, in an unlawful manner and in breach of the principle of “natural judge”; that this court had not been impartial and independent; that their detention had been ordered without the strong suspicion of crime and any ground for detention and on account of performance of their duties arising from the law and their legal opinions which were included in the decisions rendered by them by virtue of their profession and which were explained in the official documents. They also alleged that on account of the restriction imposed on the investigation file and certain practices performed, they could not effectively exercise their right to objection to the fact that they had been deprived of their liberties; that they had been denied participating in the hearing in which their detention were reviewed; and that their right to presumption of innocence had been breached on account of certain statements of the President of the Republic and the Minister of Justice.
The Court’s Assessment
In brief, the Constitutional Court has made the following assessments within the scope of these allegations:
a. Presumption of Innocence
In the Constitutional Court’s perspective, the presumption of innocence guarantees that a person would not be acknowledged to be guilty without the existence of a final judicial decision indicating that that person has committed the offence. Although the presumption of innocence ensures protection for a person in order not to be declared guilty by the public authorities until his guilty is found established by a court decision, it does not prevent the authorities from informing the public of a criminal investigation which is being conducted. However, as the presumption of innocence is also applicable at this stage, due attention and diligence must be paid while releasing information to the public.
In the present incident, the events taking place following the period when the MIT trucks were stopped were closely followed up by the public and remained on the country’s agenda for a long time. Various discussions and assessments were made by the political circles concerning the content of the materials included in the trucks stopped and the routes of the trucks. There were extensive political debates on the issue. Having regard to the context, conditions and content of the criticisms and statements by the President of the Republic and the Minister of Justice concerning these activities, which were considered by them as an act against the national security and the government, and to the way in which these activities were performed and to the public interest arising due to the topicality of the debates concerning the stopping and searching of the MIT trucks, it has been concluded that these statements and criticisms did not lead to the applicants’ being declared or treated as an offender.
It has been therefore held that this part of the application must be declared inadmissible for being manifestly ill-founded.
b. Decisions on Detention on Remand
According to the Constitutional Court, those in respect of whom there is strong indication of guilt, may be detained on remand upon a judicial decision with a view to preventing them from fleeing and destroying or altering the evidence or under other conditions necessitating the detention like the above-mentioned ones and set out in the law. Within this framework, detention of a person primarily depends on the strong indication that he has committed the offence. It is therefore required that the charge be supported with plausible evidence likely to be deemed as strong.
In the present incident, when the content of the evidence such as “the suspects’ statements, the witnesses’ statements, a certain part of the investigation file of the Adana Chief Public Prosecutor’s Office, the HTS records, the shift list, the case-file examination minutes, the examination minutes pertaining to the CDs including images, the reply letters of the Adana and Hatay Governorships”, which were specified in the decision on detention and the decision on dismissal of the objection to detention rendered in respect of the applicants and which were used as a basis for the applicants’ detention; the findings and assessments in the examination and investigation report drawn up in respect of the applicants; and the acts imputed on the applicants by the bill of indictment are taken into consideration together, it has been revealed that there was plausible evidence for getting suspicious that the applicants might have committed the offence.
On the other hand, it must be also assessed whether the measure of detention is “necessary” within the scope of the principle of proportionality which is one of the criteria set out in Article 13 of the Constitution. The Constitutional Court has made the constitutionality review on these matters only on the basis of the process of detention and the grounds for their detention by having regard to the fact that proceedings are still pending in respect of the applicants.
The facts that the offences with which the applicants were charged are among the offences listed in the Code of Criminal Procedure no. 5271 (“the CCP”) and that the principle of proportionality was respected given the minimum and maximum limits of the prescribed sentences were relied on as the ground for detention in the decisions ordering the applicants’ detention.
As the imputed offence of attempting to overthrow the Government of the Republic of Turkey or to preventing it from performing its duties partially or wholly is among the offences listed in Article 100 § 3 of the CCP and likely to be “regarded as a ground for detention” by virtue of the Code, it has been observed that there is a ground for the applicants’ detention. Moreover, the severity of the imprisonment which would be imposed on a person in case of being convicted is one of the conditions indicating the existence of suspicion of fleeing. Accordingly, it cannot be said that there is no ground for detention in the investigation conducted against the applicants. Moreover, given the process of the investigation, it has been comprehended that there is no ground for reaching the conclusion that the applicants’ adetention was not necessary.
On the other hand, the applicants are accused, by the investigating authorities, of disclosing the activities, which must be remained confidential for the security of the state and the foreign political interests due to their nature and which were performed by the MIT and were in fact of the nature of a state secret, through the search warrants and instructions issued and given by them and through the investigations conducted or caused to be conducted by them, in spite of not being the competent authority, by means of acting in an organized manner as a part of an organization conducted together with certain public officers in a planned and systematic manner and by means of abusing their powers resulting from their duties. It has been observed that the decisions on the applicants’ detention were rendered not on account of the actions performed by them by virtue of their duty but with the allegation that they had intentionally used their professional position and their powers resulting from their professions with a view to leaving the State and the Government of the Republic of Turkey in a difficult situation and discrediting the State and the Government, to putting the State and the Government under legal and criminal responsibility before the international judicial bodies by means of giving an impression that it had aided the terrorist organizations. Therefore, the allegation that the applicants were detained on remand on account of a judicial activity performed by them by virtue of their duties is unfounded.
It has been therefore held that this part of the application must be declared inadmissible for being manifestly ill-founded.
c. Other Complaints
As to the applicants’ allegations that they were detained on remand by a non-competent court which was established in breach of the principle of “natural judge” and which was not independent and impartial; that their right to defence was restricted within the context of the objection to their detention on the grounds that their access to the evidence pertaining to the charges was denied due to the confidentiality (restriction) decision and that they were not provided with the images of the records concerning the statements taken in the course of their questionings and made through the Audio and Video Information System; and that they were denied participating in the hearing concerning the review of their detention, it is obvious that there was no breach. It has been therefore held that these parts of the application must be declared inadmissible for being manifestly ill-founded.
This press release prepared by the General Secretariat intends to inform the public and has no binding effect.