Press Release No: Individual Application 15/17
30.06.2017

PRESS RELEASE CONCERNING THE JUDGMENT SETTING OUT PRINCIPLES ON DETENTIONS DURING THE STATE OF EMERGENCY

On June 20, 2017, the Plenary of the Constitutional Court found in Aydın Yavuz and others (app. no. 2016/22169) no violation of the right to liberty and security of person in conjunction with Article 15 of the Constitution.

The Facts

During the coup attempt of 15 July, the campus of Turkish Satellite and Communication Company (“TURKSAT”) located in Gölbaşı was occupied by the coup plotters on 16 July 2016 at around 00:47 a.m.

The applicants are electronic and computer engineers, and they reside outside Ankara. They arrived in Ankara at the evening hours on 15 July 2016 and went to TURKSAT campus by a car driven by the applicant Burhan Güneş on 16 July at around 2:00 am. The applicants were stopped at the entrance of the campus by police officers. They told the police officers that “they had been called in from inside the campus” and requested to enter to the campus. Thereupon, they were taken into custody.

On 18 July 2016, Gölbaşı Magistrate’s Judge Office ordered the applicants’ detention on remand for attempting to overthrow the constitutional order.

The Ankara Chief Public Prosecutor’s Office charged the applicants with the offences of “attempting to overthrow the constitutional order, attempting to overthrow the Grand National Assembly of Turkey or prevent it from performing its duties, attempting to overthrow the Government of the Republic of Turkey or prevent it from performing its duties and being a member of an armed terrorist organization”.

This action has been pending as of the date when this application was examined, and the applicants are still detained on remand.

I. General Principles

A. Emergency Administration Procedures

Emergency administration procedures are temporary and exceptional administration regimes which vest the public authorities with broader powers in comparison to those of ordinary times. This is necessary to eliminate severe threats and dangers emerging in cases where the existence of the State and the community or the public order cannot be protected with ordinary powers. Under such emergency procedures, a shift takes in the legal system. The most significant effect of this shift is the narrowing of the safeguards with respect to the fundamental rights and freedoms. Accordingly, emergency periods may require measures resulting in wider restriction of the fundamental rights and freedoms in comparison to ordinary periods or even suspension of these rights and freedoms, in order to eliminate the existing threat or danger.

B. Examination of Individual Applications in Emergency Periods

1. Power to Examine Individual Applications

Neither the Constitution nor the laws include a provision providing that an individual application cannot be lodged with the Constitutional Court during emergency periods. Therefore, the Constitutional Court has the power to examine individual applications for alleged human rights violations in emergency periods.

2.  Examination Process

a. In General

The criteria with respect to the restriction of the fundamental rights and freedoms in ordinary times are laid out in Article 13 of the Constitution whereas the restriction or suspension of the exercise of the rights and freedoms in times of “war”, “mobilization”, “martial law” and “a state of emergency” are set out in Article 15. In examining the individual applications against emergency period measures, the Constitutional Court is to take into account the protection regime set out in Article 15.

b. Conditions as to the Applicability of Article 15 of the Constitution

i. Existence and Declaration of Emergency Case (Olağanüstü Durum)

For the application of Article 15 of the Constitution, there must exist one of the conditions of “war”, “mobilization”, “martial law” or “state of emergency”, and subsequently, the existence of one of those must have been declared by the state authorities empowered by the Constitution.

ii. That the Measure must be related to Emergency Case

For the application of Article 15, it does not suffice that an impugned measure is taken during an emergency period; but this measure must also be related to the elimination of the threat or danger leading to the declaration of the emergency case. In case of failure to establish such a relation, Article 13, not Article 15, is to be applied in reviewing impugned measures even if it is taken in the emergency period.

c. Examination pursuant to Article 15 of the Constitution

i. Whether the Measure is in breach of the Safeguards Enshrined in the Constitution

In an individual application against a measure interfering with fundamental rights during an emergency period, the impugned measure will be subject to review first under the constitutional safeguards in place for ordinary times. If it is determined that the measure is not in breach of those safeguards, as a principle, a separate examination will not be made under the criteria set out in Article 15. If, however, the complained measure is found be in breach of the safeguards prescribed for ordinary times, then a further examination will be made for determining whether it complies with emergency criteria set out in Article 15. In other words, an emergency measure failing to satisfy constitutional test for ordinary times is subject to further examination for determining whether in can be justified under Article 15.

ii. Whether a Measure in Breach of the Non-emergency Safeguards is Legitimate in time of Emergency Period

In order to satisfy the emergency period criteria set out under Article 15, a measure must be in compliance with all of the following:

(1) Whether the Measure has a bearing on the Core Rights

An emergency measure, which may be in violation of non-emergency standards, must not infringe upon the rights and freedoms provided in Article 15 § 2 of the Constitution.

(2) Whether the Measure is in breach of the Obligations Stemming from the International Law

An emergency measure must also not breach the obligations stemming from the international law, notably those stemming from the international conventions on human rights to which Turkey is a party.

(3) Whether the Measure is within the extent required by the Emergency Case

The final condition set out in Article 15 is that an emergency measure must be “within the extent required by the exigencies of the situation.”

C. Assessment as to the Current Emergency Case in Turkey

The incident led to the emergency case in Turkey is the coup attempt that took place on 15 July 2016. Those behind the coup attempt attacked the nation, the legitimate government, the media outlets and the security forces. During the attack, they used war arms such as fighter jets, helicopters, vessels and tanks and heavy weapons, which were entrusted to them for protecting the very people they attacked. This barbaric attempt left behind more than 250 deaths and thousands of injured. The fact that this coup attempt took place at a time when Turkey was under fierce attack of many terrorist organizations made the country even more vulnerable to such attacks and therefore considerably increased the gravity of threat it posed against the existence of the nation.

Accordingly, there is no doubt that the coup attempt of 15 July has posed an existing and severe threat not only to the democratic constitutional order but also to the “individuals’ fundamental rights and freedoms” and “national security”, both of which are indeed closely associated with one another. This is the most severe attack in the history of the country, targeting the national security and the lives of the people and even existence of the whole nation.

The investigations initiated by the authorities following the coup attempt, the statements of suspects and witnesses, the material facts, and pre-coup attempt investigations on the FETÖ/PDY (the Fetullahist Terrorist Organization / Parallel State Structure), when considered as a whole, indicate that the public authorities’ assessment as to the FETÖ/PDY being the plotter/perpetrator of the coup attempt has sufficient factual basis.

The following characteristics of the FETÖ/PDY increase the gravity of the threat it has posed to the democratic social order even more: the FETÖ/PDY has been organized in all public institutions and organizations, notably the Turkish Armed Forces, security directorates, the judiciary, public institutions of education and religion, the political parties, trade and labour unions, non-governmental organizations and business companies; it adopts a mentality attributing holiness to the organization and to its actions without questioning; its members act in full obedience and devotion to the organizational will,  and it is made up of  hierarchical and cell-type structure; it has been using confidential/covert means of communication; it ultimately aims at taking control of the constitutional institutions of the state, re-designing the society and the individuals in line with its own ideology and governing  the country through an oligarchic rule.

The coup attempt made on 15 July 2016 lies behind the declaration of the “state of emergency” on 21 July 2016. However, the intense terror attacks against Turkey also have a bearing on the declaration of the state of emergency.

II. Examination of the Applicants’ Allegations

A. Alleged Unlawfulness of the Applicants’ Detention

1. The Applicants’ Allegations

The applicants maintained that at the date of incident they acted together with the convoys formed by the groups resisting the coup attempt and went to the campus where TURKSAT was located; that their act was not associated with any activity falling within the scope of the coup attempt; and that they did not have any connection with the imputed offences, they nevertheless were detained.

2. The Constitutional Court’s Assessment

Within the scope of the right to liberty and security of person, the most significant element of the judicial review of the first detention is the existence of “strong indication” of having committed an offence, which is specified as one of the requisite conditions of having recourse to detention measure in Article 19 § 3 of the Constitution. In that regard, the existence of serious indication of having committed an offence suffices for the first detention of a person. 

As regards the existence of suspicion of having committed an offence in the present case, the detention order referred to the incident scene, the investigation report, and the applicants’ statements. According to the determinations of the investigation authorities, the applicants wanted to enter the campus of TURKSAT occupied by coup plotters, and they were stopped by the police officers at the entrance of the campus. They were arrested after the applicant Burhan Güneş, who had been driving the car, had stated that “they had been called by those inside the campus” and had tried to delete the records on his mobile phone in rush.  The authorities considered “being called by those who were inside the campus” to be a call by the military officers occupying TURKSAT. In addition to that, the applicants stated that they had been residing in various regions outside Ankara and had met at the bus station in Ankara at the evening hours on 15 July; they had borrowed the car they were using from a person whose name they did not want to disclose. Although they also stated that they had been acting in order to join the convoys fighting against the coup, they in fact went to the campus of TURKSAT (located in the Gölbaşı district) which was tens of kilometres away from the provincial centre where against-coup demonstrations took place.

Moreover, the suspect U.O. (owner of the car by which the applicants went to TURKSAT) stated to the investigation authorities that “he met with the applicants at a home on the incident day; the applicants left the home by his vehicle; and later on, the applicants were reported in the news that they raided TRT (“the Turkish Radio and Television Corporation”) building together with the coup-plotter military officers for interrupting its broadcasting at the night of the coup attempt. One of the military officersoccupying TURKSAT, E.U., said in his statement that “as the TURKSAT personnel did not assist us to stop broadcasting, we were told by our superiors that civilian technicians would arrive from outside to assist us to stop broadcasting”. Accordingly, there are strong reasons substantiating the investigations authorities’ suspicion that the applicants committed the imputed offences. 

In addition, it has been established that the applicants, Burhan Güneş and Aydın Yavuz, were users of the “ByLock” application (app), which is the digital platform through which the FETÖ/PDY members maintained secure communication among themselves. Taking into account the technical features of this app, it is comprehensible that the fact that the applicants have and use this app is considered by authorities as a strong indication for their connection with FETÖ/PDY. As a matter of course, the degree of this indication may vary by concrete incidents, depending on the factors such as whether this app has been actually used by the individual concerned, the manner and frequency of its use, the position of and importance attached to the contacts (those with whom communication was established via this app) within the FETÖ/PDY, and the content of messages communicated via this app. Moreover, the competent authorities’ assessment that the use of ByLock or having it in electronic/mobile devices constitutes a strong indication of having committed an offence cannot be considered as unfounded or arbitrary. Therefore, it must be concluded that there is, also in this respect, a strong suspicion that the applicants Burhan Güneş and Aydın Yavuz, who are users of this app, had committed the imputed offences.

On the other hand, although the pre-requisite of strong suspicion of having committed an offence for detention may exist, it must also be determined whether the impugned detention measure is proportionate or not. The constitutional review on this matter must be made with regard to the detention process and the grounds thereof. At this stage, the Constitutional Court’s duty is not to find out the most appropriate measure or means best serving the establishment of justice but to review the constitutionality of the impugned interference (the detention measure in the present case).

Considering the general circumstances in which the applicants were detained and the particular facts of the present case together, the Constitutional Court found that the legal grounds for the applicants’ detention, the risk of tampering with evidence and suspicion, have sufficient factual basis.

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

B. Review of Detention without a Hearing

1. The Applicants’ Allegations

The applicants Birol Baki, Burhan Güneş, and Salih Mehmet Dağköy also maintained that the review of their detention was carried out without holding a hearing, and therefore their right to liberty and security were violated.

2. The Constitutional Court’s Assessment

The suspected offence resulting in the applicants’ detention concerns an act relating to the coup attempt of 15 July, which is the primary incident led to the declaration of the state of emergency in Turkey. The state of emergency has been in force during the period when the applicants have been detained on remand. In this respect, the interference to the right to liberty and security of a person in the form of reviewing detention without a hearing is to be examined under Article 15 of the Constitution.  Before examining the claims under Article 15, it must be first determined whether the impugned detention reviews breach the safeguards enshrined in Article 19 of the Constitution.

Article 19 § 8 of the Constitution sets forth that persons whose liberties are restricted for any reason are entitled to apply to the competent judicial authority for speedy conclusion of proceedings regarding their detention status and for their immediate release if the restriction imposed upon them is not lawful.

One of the fundamental safeguards deriving from Article 19 § 8 is the right to request for an effective review of detention before a judge. Indeed, a very high importance must be attached to this safeguard considering that this is the primary legal tool for a person deprived of his liberty to effectively challenge his or her detention. In this way, a detained person is given the opportunity to discuss the reasons led to his/her detention and the assessment of the investigation authorities in person before a judge or a court. Therefore, a detained person should be able to exercise this right by being heard before a judge at certain reasonable intervals.

In the present case, the applicants’ detentions were prolonged without a hearing within the period from July 2016 to April 2017. The Constitutional Court concluded that review of the applicants’ detention without holding a hearing and their deprivation of liberty for 8 months and 18 days under such a procedure are in breach of the safeguards enshrined in Article 19 § 8 of the Constitution.

However, because the applicants were detained in the state of emergency, it must be next examined whether this interference can be justified under Article 15, regulating the restriction and suspension of exercise of the fundamental rights and freedoms in emergency periods.

Under Article 15, it must be examined whether the interference infringes upon the rights and freedoms stated in paragraph 2, whether it violates the obligations stemming from the international law, and whether it is required by the exigencies of the situation. 

The right to liberty and security of person is not one of the core rights that are stated in Article 15 § 2 as inviolable in emergency periods.  

Nor does the interference violate the obligations arising from international law because the right to liberty and security is not one of the inviolable rights stated in the international conventions to which Turkey is a party, notably the International Covenant on Civil and Political Rights (“the ICCPR”) and the Convention as well as the additional protocols thereto. Furthermore, it was not substantiated that the interference with the applicants’ right to liberty and security violates other safeguards applicable in emergency periods under the international law.

Having found that the interference satisfied first two standards set out in Article 15, the Court then turned to scrutinize it under the last standard of “the extent required by the exigencies of the situation”. The interference into the right to liberty and security in the form of detention without a hearing must not be arbitrary in order to satisfy this standard at the outset. When determining if the interference is required by the exigencies of the situation, in other words, whether it is proportionate or not, the factors to be taken into account are the situation leading to declaration of the state of emergency, the circumstances during the state of emergency and special circumstances of the specific period the impugned interference took place.  

Following the coup attempt of 15 July, upon the instructions of the chief public prosecutors’ office, investigations were initiated throughout the country against roughly 160.000 persons who involved in the coup attempt or who were considered to be in connection with the FETÖ/PDY regardless of direct involvement in the coup attempt. In this scope, over 50.000 persons were detained on remand and over 47.000 persons were released subject to other measures. The investigation authorities faced with the necessity to immediately initiate and conduct investigations against tens of thousands of suspects upon such an unexpected situation. Also, considering the characteristics of the FETÖ/PDY (secrecy, cell-type structuring, its ubiquitous nature in the state and society organizations,  attributing holiness to itself and acting on the basis of obedience and devotion), it is obvious that these investigations are far more difficult and complex than other criminal investigations. In this respect, the judicial and investigation authorities are to manage a heavy workload which was unforeseeable. Furthermore, on 16 July just after the suppression of the coup attempt, the High Council of Judges and Prosecutors (“the HCJP”) ordered, at the first stage, suspension of 2.745 judges and prosecutors from office for having connection with the FETÖ/PDY. At the subsequent stages, over 4.000 members of the judiciary were dismissed from office.

Having regard to the severe and unforeseeable workload the judicial and investigation authorities have been exposed after the coup attempt, the suspension and dismissal of thousands of judges and prosecutors (about 1/3 of all members of the judiciary) who would otherwise deal with this workload and maintain efficient operation of the legal system, and dismissal of a significant part of the assistant courthouse personnel and law enforcement officers, it must be acknowledged that the review of detentions over case-documents without holding a hearing for those detained for suspicion of coup-related offences is a measure which is proportionate to the requirements of the state of emergency.

Furthermore, a significant number of guardians and gendarmerie personnel in charge for maintaining the security of penal institutions are also suspended or dismissed from office. Considering that thousands of detainees in connection with the coup attempt and FETÖ/PDY are placed in penal institutions in rural areas, the lack of sufficient number of those personnel and security forces may cause serious security problems during transfer of those detainees to court houses. Accordingly, conducting detention reviews of suspects in question without holding a hearing may be considered even necessary for maintaining public security during the state of emergency.

Under these circumstances, the Constitutional Court concluded that the extension of the detention of the applicants, who are 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 constitutes a measure “proportionate to the exigencies of the situation”. 

The Constitutional Court accordingly held that there is no violation of the applicants’ right to liberty and security under Article 15.

C. Other Complaints

The applicants also alleged that the extension orders of detentions lacked justification; their detention exceeded reasonable time; their right to defence was restricted due to confidentiality of the investigation file (no or restricted access to investigation documents). The Constitutional Court found those allegations inadmissible for being manifestly ill-founded.

 

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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