Press Release No: Individual Application 36/17
16.11.2017

PRESS RELEASE CONCERNING THE DECISION ON DETENTION OF THE APPLICANT WHO IS A MEMBER OF PARLIAMENT

On 16 November 2017, the Plenary of the Constitutional Court declared the individual application lodged by Gülser Yıldırım (no. 2016/40170) inadmissible on the grounds briefly explained below.

Firstly, no constitutional provision prohibits detention of the members of the Parliament (“MPs”) in the absence of parliamentary immunity. Nor has the Constitutional Court rendered a judgment against detention of MPs. In its previous judgments concerning MPs’ detention on remand, the Court’s consideration was limited to the complaints that “detention exceeded the reasonable time.” In this respect, the Court emphasized that when examining the length of detention of MPs, public interest inherent in the rights to be elected and to carry out political activities must be taken into consideration in addition to the period of detention.

Secondly, in the present case, the People’s Democratic Party (“the HDP”) made a call through its social media account upon the Kobani conflict and provoked people to pour out into streets and clash with the security forces. The call was made one behalf of the Party’s Central Executive Board of which the applicant is a member, concurrently with the calls made by the PKK terrorist organization in a time when the Syrian civil war posed a heavy threat to Turkey. Following these calls, the violent acts known as “the 6-7 October events” emerged, and a great number of people lost their lives and were injured during these events. Regard being had to these facts, a causal link may be established between the calls made on behalf of the HDP’s Central Executive Board and the violent acts in question.

Furthermore, the applicant, who represents the district of Mardin in the Parliament, held many phone conversations and exchanged messages with a terrorist, who was in charge of rural districts and was killed in a clash with the security officers in the Dargeçit district of Mardin during the events known as “ditch events”. Given these conversations, messages and the contents thereof, it is also concluded that consideration of this communication by the relevant authorities under terror-related offences has factual basis. Therefore, the assessment in the detention order as to the existence of “strong indication of guilt” is not arbitrary.  

The Constitutional Court thus declared the applicant’s allegation of “unlawful detention” manifestly ill-founded.

The Facts

The applicant is currently a member of the Parliament. She was elected from the Mardin district as the candidate of the HDP on 1 November 2015. A number of investigations were conducted against the applicant by various chief public prosecutor’s offices for certain offences allegedly committed when she was an MP, and nine separate motions were drawn up for lifting her parliamentary immunity.

In the meantime, a provisional article was added to the Constitution for lifting parliamentary immunities for the pending motions (Law no: 6718, article 1, published at the official gazette on 8 June 2016). Provisional article 20 provides that parliamentary immunity shall not be applicable to motions for lifting immunities submitted to competent authorities by 20 May 2016, the date of adoption of this provisional article by the Grand National Assembly of Turkey (“the GNAT”).

Because the investigation files against the applicant also fell within the scope of the provisional article, the necessary action was taken, and those files were joined and handled by the Diyarbakır Chief Public Prosecutor’s Office (“the Prosecutor’s Office”).The applicant was summoned by the investigation authorities for taking her statement. Numerous summons issued to that end were served on the applicant on 23 July, 17 August and 11 October 2016. However, she failed to comply with these summons. Furthermore, after the constitutional amendment proposal concerning the parliamentary immunity had been brought before the GNAT, the Co-Chairperson of the HDP expressly noted in his speech that absolutely no MP would appear before the prosecutor’s offices for giving statement.

On 4 November 2016, the applicant was taken into custody at her house located in Mardin and subsequently taken to the Prosecutor’s Office. On the same date the Prosecutor’s Office referred the applicant to the Diyarbakır 2nd Magistrate Judge’s Office with a request of her detention. By the decision of the Judge’s Office dated 4 November 2016, the applicant’s detention was ordered for her alleged membership of an armed terrorist organization and for public incitement to commit a criminal offence. 

On 25 January 2017, the Prosecutor’s Office indicted the applicant for the offences of establishing or managing an armed terrorist organization, making propaganda of a terrorist organization, publicly inciting hatred and hostility, praising an offence and offender, publicly inciting to commit an offence, and inciting unlawful meetings and demonstration marches.

At the hearing of 22 September 2017, the 3rd Chamber of the Mardin Assize Court separated the case concerning the offence of establishing and managing an armed terrorist organization. In the preliminary examination over the separated case-file no. E.2017/587 on 25 October 2017, continuation of the applicant’s detention was ordered. On the other hand, the Assize Court terminated the detention within the scope of the case-file no. E. 2017/275 on 15 November 2017 with respect to the accusation of publicly inciting to commit an offence. Both cases against the applicant were pending before the first instance court as of the date when the individual application lodged by her was examined by the Constitutional Court. She is still detained on remand within the scope of the case-file no. E. 2017/587.

The Applicant’s Allegations

The applicant maintained that her detention was unlawful and that her right to liberty and security was breached on the ground that the acts committed by her fell into the scope of freedom of expression, the right to hold meetings and demonstration marches, and the right to carry out political activities. She claimed that while her expressions among the public or her calls made in various platforms should have been considered under the freedom of expression as she was a political figure, they were mistakenly regarded to constitute an offence.

Noting that the detention order and the dismissal of the request for review of this order were unreasoned and that her allegations were not discussed therein, the applicant claimed that she was deprived of liberty without being provided with a justification as to the ground of her detention and an explanation as to why conditional bail would remain insufficient.

Stating that she was unable to carry out her political activities as an MP for being detained on remand, the applicant also alleged that the detention order aimed at preventing her political activities as a HDP’s MP and punishing her due to these activities.

She also complained that her apprehension was unlawful and that her access to investigation file was restricted.

The Constitutional Court’s Assessment

Alleged Unlawfulness of Detention

In brief, the Constitutional Court made the following assessments:

In Article 19 § 1 of the Constitution, it is set out in principle that everyone has the right to personal liberty and security. In Article 19 §§ 2 and 3, certain circumstances under which individuals may be deprived of liberty are set forth, also provided that the conditions of detention must be prescribed by law. Therefore, the freedom of a person may be restricted only in cases where one of the circumstances specified in this article exists.

Moreover, an interference with the right to liberty and security constitutes a breach of Article 19 of the Constitution unless it also complies with the conditions set out in Article 13 of the Constitution in which the criteria with respect to the restriction of fundamental rights and freedoms are specified. It is therefore necessary to determine whether the restriction complies with the requirements enshrined in Article 13 of the Constitution; i.e., the requirements of being prescribed by law, relying on one or more valid reasons specified in the relevant articles of the Constitution, and not being contrary to the principle of proportionality.  

Pursuant to Article 19 § 3 of the Constitution, the detention measure can be applied only for “individuals against whom there is a strong indication of guilt”. In other words, the prerequisite for detention is the existence of a strong indication that the individual has committed an offence. Therefore, in every concrete case, it must be assessed whether this prerequisite has been fulfilled or not prior to making an examination as to the other requirements of detention. Strong indication of guilt appears only in cases where the accusation is supported with convincing evidence likely to be regarded as strong.    

In cases where there are serious claims that the acts imputed to the suspect or to the accused fall within the scope of the fundamental rights and freedoms, which are indispensable for democratic social order, such as freedom of expression, freedom of the press, freedom of assembly and the rights to elect, to be elected and to carry out political activities, or in cases where such a situation is evident from the circumstances of the concrete case, the judicial authorities ordering detention must apply a higher scrutiny in determining the existence of strong criminal suspicion.

In every concrete case, it falls in the first place upon the judicial authorities deciding detention cases to determine whether the prerequisites for detention, i.e., the strong indication of guilt and other grounds exist, and whether the detention is a proportionate measure. As a matter of fact, those authorities which have direct access to the parties and evidence are in a better position than the Constitutional Court in making such determinations. However, it is the Constitutional Court’s duty to review whether the judicial authorities have exceeded the discretion conferred upon them. The Constitutional Court’s review must be conducted especially over the detention process and the grounds of detention order by having regard to the circumstances of the concrete case.

In line with these general principles, it must be primarily assessed whether there is a strong indication of guilt on the part of the applicant in the present case.

Referring to the facts within the scope of the “6-7 October events” and “ditch events” and certain acts committed by the applicant, the Magistrate Judge’s Office ordering the applicant’s detention concluded that there was strong criminal suspicion on the part of the applicant for the alleged membership of an armed terrorist organization, the PKK, and for publicly inciting to commit an offence.

In the present case, the investigation authorities found that when an armed conflict erupted in Kobani between the PYD—considered to be the PKK’s Syrian wing—and the DAESH during the Syrian civil war, a call was made on 5 October 2014 through social media account of high-level heads of the PKK to provoke people to defend Kobani and to occupy cities in Turkey for this cause. The next day, a public statement was made through the HDP’s social media account that its Central Executive Board had convened with the agenda of Kobani events. Through this statement people were also called to take immediate action and to pour out into the streets for supporting those who had been already fighting to protect regions. It was also stated therein “Everywhere is Kobani from now on. We call you to RESIST FOR AN INDEFINITE PERIOD OF TIME”. In the meantime and thereafter, continuous announcements and calls were made through a web site operating under the PKK’s guidance urging people to uprise and engage in armed conflicts on streets with security forces. Upon these calls, mass violent acts took place. These violent acts —which created a great public disturbance and resulted in a great number of casualties including many dead and vandalizing of public and private property—started on 6 October 2014, lasted for days and spread to many regions of the country. The applicant did not denounce this call or stated that it was made outside her will; on the contrary, she made statements that were in support of the call in question.

The applicant should have foreseen that the call made for uprising in favour of a terrorist organization upon the conflicts that took place in Kobani between two terrorist organizations might have led to widespread mass violent acts in Turkey, which would undoubtedly disturb the public order. It is also clear that the civil war in Syria posed a heavy threat to the national security of Turkey due to its location. It is undeniable that in this atmosphere, such a call, which was made from the social media account of the HDP on behalf of the HDP’s Central Executive Board, would highly influence a certain part of the community. As a matter of fact, the mass violent acts started on right after these calls were made and spread gradually over time. Accordingly, the investigation authorities relied on factual and legal grounds while establishing a causal link between the calls made on behalf of the HDP’s Central Executive Board and the PKK, as well as between the calls and the violent acts in question.

Furthermore, during the period when the terrorist events known as “ditch events” occurred, the PKK tried to gain dominance over some parts of the provinces located in the east and south-eastern regions of Turkey, among which there was also the Dargeçit District of Mardin. To that end, the PKK dug ditches, constructed barricades and planted bombs and explosives in these barricades. The security officers carried out operations for the purpose of filling these ditches and removing the barricades, thereby returning the life to normal. In this scope, operations were carried out also in the Dargeçit District. During these operations, many heavy weapons and explosives were seized, the ditches were filled, the barricades were removed, and many terrorists were neutralized.

It has been established that when the armed conflicts had intensified, the applicant held many phone conversations and exchanged messages with one of the terrorists who were neutralized in the Dargeçit District. The investigation authorities established that the terrorist in question was the member of the PKK and was responsible for the rural area in the Dargeçit District. According to the messages between the applicant and this terrorist, the terrorist asked for help by telling that they were in a difficult situation, and he especially asked for the people living in the region to be directed to specific areas for support. The investigation authorities also determined that the applicant responded to the requests of the terrorist. Therefore, regard being had to the facts above and the content of the communication, it is concluded that the investigation authorities’ assessments those communications had been made within the scope of the terrorist organizational activities had factual basis.

The investigation authorities also established that in her various speeches, the applicant referred to the PKK terrorists killed during the armed conflicts as “comrades” and “martyrs”, and she described those situations as “massacres” and “executions”. She also used the expressions “We will be in the pursuit of the rights of our martyrs until the end”. In this way, the applicant praised the armed terror of the PKK and used the words legitimizing this terror and told that she was grateful to the terrorists who were killed. The applicant made those speeches during a time when the PKK increased its terrorist attacks in many parts of the country, including in Mardin which is the electoral district of the applicant. Accordingly, the applicant made those speeches in a fragile time that the security of the country was under high risk due to such terrorist activities. In this respect, given the applicant’s political position, the content, time, and place of her speeches, it cannot be said that consideration of these speeches by the investigation authorities as a strong indication of guilt was unfounded.

Therefore, it must be concluded that there is a strong indication of guilt on the part of the applicant.

Following this assessment as to the prerequisite for detention, it must also be examined whether the grounds for detention are present in the concrete case.

The detention order issued in respect of the applicant was based on the severity of the penalty provided in the law for the alleged membership of an armed terrorist organization and on the fact that the offence was among the catalogue crimes. “Membership of an armed terrorist organization” and “inciting to commit an offence” on accounts of which the applicant was arrested are the types of offences as a result of which heavy penalties would be imposed under the Turkish criminal law. Given the severity of the punishment set forth in the law for the imputed offence, it may be concluded that the risk of fleeing exists. Furthermore, the membership of an armed terrorist organization is among the offences enumerated in the Law that the ground for detention may be presumed ipso facto. In addition, the Diyarbakır Chief Public Prosecutor’s Offices summoned the applicant many times on different dates for the purpose of taking her statement, however, she failed to comply with these summons. After the constitutional amendment proposal concerning the parliamentary immunity had been brought before the GNAT, the Co-Chairperson of the HDP expressly said in his speech that absolutely no MP would appear before the prosecutor’s offices for giving statement. Accordingly, it can be said that this attitude of the applicant was beyond a personal approach; it was rather a planned political attitude that aimed at obstructing the investigation and prosecution processes, and this attitude of the applicant was likely to continue at the subsequent stages. As a result, it is concluded that the grounds for the applicant’s detention due to the risk of fleeing had factual basis.

Lastly, it must be determined whether the detention order issued in respect of the applicant was proportionate or not.

In this scope, the applicant stated that her detention prevented her from carrying out political activities. Referring to certain judgments of the Constitutional Court, the applicant also maintained that her detention was disproportionate.

The Constitutional Court has not given any judgment that the detention of an incumbent MP would be unlawful. In this Court’s previous judgments in the applications of Kemal Aktaş and Selma IrmakFaysal Sarıyıldız and İbrahim Ayhan, no examination was made concerning this peculiar aspect, given that those applicants were elected to the Parliament after they were detained on remand and that theydid not submit any allegation as to the “lawfulness of their initial detention”. Furthermore, in the applications of Mehmet Haberal and Mustafa Ali Balbay, who were also elected as MPs after detention, the Court found the applicants’ claims that they were detained despite “the lack of required conditions and without the existence of strong suspicion” manifestly ill-founded.

In its previous judgments concerning MPs’ detention on remand, the Constitutional Court only examined the complaints concerning “the unreasonable length of detention” in connection with the rights to be elected and to carry out political activities. In those judgments finding a violation of the right to personal liberty and security concerning MPs, the length of the detention period was taken into account together with the public interest inherent in the exercise of the right to be elected and to carry out political activities  (4 years 3 months and 22 days in the application Mehmet Haberal, 4 years and 5 months in the application Mustafa Ali Balbay, 4 year 8 months and 16 days in the application Kemal Aktaş and Selma Irmak, 4 years 6 months and 15 days in the application Faysal Sarıyıldız, 3 years 2 months and 26 days in the application İbrahim Ayhan, and 3 years 10 months and 5 days in the application Gülser Yıldırım).

There is no constitutional provision providing that MPs cannot be detained on remand in the event that parliamentary immunity is lifted or that a constitutional exception has been introduced in this regard as is the case before us. Contrary to what the applicant submitted, the Constitutional Court did not make any assessment in the above-mentioned judgments that the MPs could not be detained. Accordingly, being an MP does not constitute in itself a protection against detention. Nevertheless, in cases where there are serious allegations that the acts imputed to the MPs fall into the scope of the right to carry out political activities, the courts ordering detention must apply a higher scrutiny in determining the existence of strong criminal suspicion.

Similarly, the European Court of Human Rights (“the ECtHR”) made no assessment that the detention measure cannot be applied in respect of the MPs under any circumstances or that such a detention would be automatically disproportionate. On the contrary, in the application Sakık and Others v. Turkey (no. 23878/94, 23879/94, 23880/94, 23881/94, 23882/94 and 23883/94, 23/5/1996), the European Commission of Human Rights (“the Commission”) pointed out that the applicants, whose legislative immunities were lifted  and who were subsequently detained while serving as MPs on charges of disrupting the unity and the integrity of the State, were convicted of making separatist propaganda and/or membership of an armed organization, and, therefore, it rejected the allegation as to the unlawfulness of detention. In the course of the examination before the ECtHR, the applicants stated that they accepted the conclusion reached by the Commission. According to the ECtHR, it was explicit that Article 5 § 1 of the European Convention on Human Rights was not violated (see Sakık and Others v. Turkey, no. 23878/94-23879/94-23880/94, 26/11/1997, § 40).

Furthermore, as a detention order was issued a long time after the date of the alleged offences, it must be examined in the present case whether the detention –as an element of the principle of proportionality– was “necessary” or not during the investigation.

First of all, it must be borne in mind that pursuant to the first sentence of Article 83 § 2 of the Constitution, the applicant could not be detained when she enjoyed parliamentary immunity. The constitutional amendment introducing an exception to parliamentary immunity for the pending motions entered into force on 8 June 2016. Thereafter, the investigation files against the applicant were sent to the relevant chief public prosecutor’s offices. The applicant was detained for approximately 5 months after the entrance into force of the provisional article in question. It appears that after the provisional article became effective, the necessary actions were taken in due time: motions were drawn up concerning the existing investigation files initiated at various jurisdictional districts, the files were sent to the competent Prosecutor’s Office and were joined; and summons were issued for taking statement of the applicant. Hence, the public authorities, in particular the investigation authorities, cannot be said to have remained inactive during the investigation process.

Regard being had to the above-mentioned facts as to the proportionality, the competent court’s conclusion that the detention measure is proportionate and conditional bail would remain insufficient on the basis of the severity of punishment prescribed for the imputed offences and the gravity of the acts committed by the applicant cannot be regarded as unfounded or arbitrary.

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

Alleged Violations of the Freedom of Expression, the Rights to be Elected and to Carry out Political Activities

Taking into consideration its assessment as to the alleged unlawfulness of detention, the Constitutional Court declared the applicant’s allegations under this heading inadmissible for being manifestly ill-founded.

 Alleged Unlawfulness of Apprehension

The Constitutional Court declared the applicant’s allegations under this heading inadmissible for non-exhaustion of domestic remedies.

Allegations on Restriction of Access to the Investigation File

The Constitutional Court declared this allegation 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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