Press Release No: Individual Application 42/17
21.12.2017

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

On 21 December 2017, the Plenary of the Constitutional Court found a violation of the right to personal liberty and security in the individual application lodged by Ayhan Bilgen (no. 2017/5974) on the grounds briefly explained below.

It was concluded in the decision on detention of the applicant that regard being had to the call made on behalf of the Central Executive Board through the social media account of the People’s Democratic Party (“the HDP”) within the scope of “the 6-7 October events” and the applicant’s being a member of the Central Executive Board, there was a strong indication that the applicant was a member of an armed terrorist organization, the PKK.

There is no doubt that a call was made on behalf of the Central Executive Board through the social media account of the HDP by provoking people to pour out into streets and clash with the security forces within the scope of the 6-7 October events and that the applicant was a member of the Central Executive Board. However, the applicant argued that he had had no will in the call in question nor had he attended the relevant meeting. The investigation authorities have reached no factual finding as to the fact that the applicant was present at the meeting of the Central Executive Board where it was allegedly decided that the call in question would be made; that the applicant made statements in support of this call; and that therefore the call was made within his will.

Accordingly, in view of the available documents, it has been concluded that the investigation authorities could not find “a strong indication of guilt” in the present case. In this respect, it must be held that the right to personal liberty and security under Article 19 § 3 of the Constitution was violated.

The Facts

The applicant is currently a member of the Parliament. He was elected from the Kars district as the candidate of the HDP on 7 June 2015 and 1 November 2015.

An investigation was conducted against the applicant by the Ankara Chief Public Prosecutor’s Office for certain offences allegedly committed by him when he was an MP, and two separate motions were drawn up for lifting his 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 in 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, they were sent to the Ankara Chief Public Prosecutor’s Office for necessary action. Afterwards, the investigation files were referred to the Diyarbakır Chief Public Prosecutor’s Office (“the Prosecutor’s Office”) for lack of jurisdiction.

On 29 January 2017, the applicant was taken into custody and subsequently taken to the Prosecutor’s Office. On the same date the Prosecutor’s Office referred the applicant to the Diyarbakır 4th Magistrate Judge’s Office with a request for his detention. The applicant was charged with the call made on behalf of the Central Executive Board –he is a member of this board– through the social media account of the HDP within the scope of “the 6-7 October events”. The Judge’s Office dismissed the request for the applicant’s detention on the ground that “there was no evidence indicating that the applicant had been involved in posting the tweet nor did he give instruction in this respect, therefore it would not be proportionate to detain him in at this stage”.

The Prosecutor’s Office contested the decision of the Judge’s Office. On 30 January 2017 the Diyarbakır 5th Magistrate Judge’s Office accepted the claim of the Prosecutor’s Office and held that an arrest warrant would be issued against the applicant.

On 31 January 2017, the applicant appeared before the Diyarbakır 5th Magistrate Judge’s Office where his detention was ordered for his alleged membership of an armed terrorist organization.

On 8 February 2017, the Prosecutor’s Office indicted the applicant for the offences of membership of an armed terrorist organization, inciting to commit an offence and contravening the Law on Meetings and Demonstrations.

On 8 September 2017, the 5th Chamber of the Diyarbakır Assize Court released the applicant.

The case against the applicant was pending before the first instance court as of the date when the individual application lodged by him was examined by the Constitutional Court.

The Applicant’s Allegations

Maintaining that there was no strong indication of guilt on the part of him nor there was a concrete evidence showing that he committed an offence; that the investigation authorities failed to investigate whether he had attended the meeting of the Central Executive Board held at the material time or whether it had been decided at the relevant meeting that a call would be made for committing an offence; and that the detention order and the dismissal of the request for review of this order were unreasoned, the applicant claimed that his right to personal liberty and security was violated.

The applicant also alleged that the detention order did not aim at preventing offences, but preventing his political activities as a HDP’s MP and reducing the opposition to silence.

The applicant also complained that his 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 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 primarily be assessed whether there is a strong indication of guilt on the part of the applicant in the present case.

Having regard to the calls made on behalf of the Central Executive Board through the social media account of the HDP within the scope of “the 6-7 October events” and the applicant’s being a member of the Central Executive Board, the Diyarbakır 5th 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.

In its judgment in the case of Gülser Yıldırım, the Constitutional Court stated that the investigation authorities had 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 calls made by the PKK before and/or during “the 6-7 October events”, as well as between the calls and the violent acts in question. The Court also draw attention to the fact that the applicant had not argued that the call had been made out of her will; on the contrary, she had made statements that were in support of the call in question.

There is no doubt that a call was made on behalf of the Central Executive Board through the social media account of the HDP by provoking people to pour out into streets and clash with the security forces and that the applicant was a member of the Central Executive Board. However, the applicant argued at all stages that he had had no will in the call in question. The applicant also consistently stated that no such decision had been taken at the meetings he had attended.

The investigation authorities have reached no factual finding as to the fact that the applicant was present at the meeting of the Central Executive Board when it was allegedly decided that the call in question would be made; that the applicant made statements in support of this call; and that therefore the call was made within his will. As a matter of fact, the Diyarbakır 4th Magistrate Judge’s Office that dismissed the initial request for the applicant’s detention also relied on the similar grounds.

Accordingly, in view of the available documents, it has been concluded that the investigation authorities could not find “a strong indication of guilt” in the present case.

In the presence of such a conclusion reached by the Constitutional Court, no separate examination is required for the applicant’s other allegations as to whether the grounds for detention were present, whether the detention order issued against him was proportionate and whether his detention was unlawful.

For the reasons explained above, it must be held that the applicant’s right to personal liberty and security under Article 19 § 3 of the Constitution was violated.

In addition, stating that due to his detention, he was restrained from taking part in legislative activities, which was directly related to his right to be elected, and he was unable to carry out political activities, the applicant alleged that his right to be elected in conjunction with his right to personal liberty and security was also violated. The Constitutional Court concluded that as regards the applicant’s main complaint, his right to personal liberty and security was violated. Therefore, in view of the circumstances of the present case, no separate examination was deemed necessary as to the applicant’s right to be elected.

Alleged Restriction of Access to the Investigation File

The Constitutional Court 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.

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