REPUBLIC OF TURKEY

CONSTITUTIONAL COURT

PLENARY

JUDGMENT

YAVUZ PEHLİVAN AND OTHERS

(Application no. 2013/2312)

PLENARY

JUDGMENT

I.          SUBJECT-MATTER OF THE APPLICATION

1.         The application is relevant to the allegations as to the effect that the right to personal liberty and security was violated as detention was not lawful, the period of detention was not reasonable and access to the case file was restricted and that the principle of legal justice was violated as the trial was held at the court of a special venue although the alleged crime was not a terror crime.

II.       APPLICATION PROCESS

2.         Application of the applicant Yavuz Pehlivan (2013/2312) was lodged with the 1^st Civil Court of First Instance of Kuşadası on 27/3/2013 while the applications of other applicants, İdris Acartürk (2013/7073), Merdin Kışkan (2013/7074), Burhan Kahraman (2013/7075), Ergün Özkan (2013/7076) and Erdal Özkan (2013/7077) were directly lodged with the Constitutional Court on 19/9/2013. The deficiencies detected in the preliminary administrative examination of the petitions and their annexes were made to be completed and it was determined that no deficiency preventing their submission to the Commission existed.

3.         It was decided by the Third Commission of the First Section on 23/1/2014 that the application No. 2013/7076 be examined by the Section in terms of admissibility, by the First Commission of the First Section on 29/1/2014 that the application No. 2013/7074 and on 31/1/2014 that the application No. 2013/2312 be examined by the Section in terms of admissibility, by the Second Commission of the Second Section on 29/1/2014 that the application No. 2013/7073 and on 30/1/2014 that the application No. 2013/7075 be examined by the Section in terms of admissibility and that the files be sent to the Section.

4.         It was decided by the First Section on 18/2/2014 that the application No. 2013/7076, on 6/3/2014 that the applications No. 2013/7074 and 2013/7077, and on 13/3/2014 that the application No. 2013/2312, and by the Second Section on 13/3/2014 that the application No. 2013/7075 be examined together in terms of admissibility and merits and that one copy thereof be sent to the Ministry of Justice for its opinion.  

5.         The Ministry of Justice submitted to the Constitutional Court its opinion related to the applications No. 2013/7074 and 2013/7077 on 7/4/2014 and its opinion related to the applications No. 2013/2312 and 2013/7075 on 14/4/2014.

6.         The opinion submitted by the Ministry of Justice to the Constitutional Court was notified to the applicants between 14/4/2014 and 22/4/2014. The applicants submitted their counter-opinions to the Constitutional Court within due time.

7.         Since it was deemed necessary during the meeting held by the Second Section on 20/5/2014 that the application No. 2013/7075 and during the meeting held by the First Section on 21/5/2014 that the applications No. 2013/2312 and 2013/7074 be ruled upon by the Grand Chamber due to their nature, it was ruled that they be referred to the Grand Chamber in order to be deliberated as per Article 28(3) of the Internal Regulation of the Constitutional Court.

8.         In the examination conducted; it was ruled that the applications No. 2013/2312, 2013/7073, 2013/7074, 2013/7075, 2013/7076 and 2013/7077 be joined with the application No. 2013/2312 and that the examination is conducted based on this file as they had the same characteristics in terms of subject.

III.    THE FACTS

A.       The Circumstances of the Case

9.         As expressed in the application form and the annexes thereof and within the framework of the information and documents that were accessed through the National Judiciary Informatics System (UYAP), the relevant facts are summarized as follows:

1.         Detention of the Applicants

10.     After being taken into custody the applicant Erdal Özkan on 13/6/2012, within the scope of the investigation of the Chief Public Prosecutor’s Office of Izmir (tasked in accordance with Article 10 of the Law on the Fight Against Terrorism No. 3713 of 12/4/1991) No. 2010/640, was detained for the crimes of “being a member of an organization established for the purpose of committing crime and acquiring documents pertaining to the security of the State” through the judgment of the 8^th Assize Court of Izmir (File No: 2012/8 of 16/6/2012).   The relevant parts of the judgment are as follows:

       “Taking into account that there were facts giving rise to strong suspicion that they had committed the crimes of …, and considering the nature of the alleged crimes, the upper limit of the crime in Article 327/1 of the Turkish Criminal Code, the penalty amounts prescribed by law for the alleged crimes, the fact that the evidence was not completely collected yet,  that it is suspected that the suspects may abscond and tamper with the evidence,  that the decision of judicial control would prove to be insufficient it is understood that a decision of judicial control would not be issued. .”

11.     After being taken into custody  on 13/6/2012 the applicant Ergün Özkan, was detained for the crimes of “being a member of an organization established for the purpose of committing crime and acquiring documents pertaining to the security of the State” on the same ground (see § 10) through the judgment of the 8^th Assize Court of Izmir (File No: 2012/9 of 17/6/2012).

12.     The applicant Merdin Kışkan was released after being taken into custody between 2/7/2012 and 5/7/2012; following his being taken into custody again on 6/7/2012, he was detained together with the applicants Yavuz Pehlivan and İdris Acartürk for the crimes of “being a member of an organization established for the purpose of committing crime and acquiring documents pertaining to the security of the State” through the judgment of the 10^th Assize Court of Izmir (File No: 2012/27 of 7/7/2012. The relevant parts of the judgment are as follows:

        “By considering that … during the search conducted in the houses and workplaces of the persons who were alleged to be the leaders and directors of the criminal organization, many documents and information relevant to the security of the State were seized, that personal data was considered to have been used for the purposes of blackmailing, that similarly, many video recordings and documents with regard to the private life of persons were seized, that the organization was considered to have spread and engaged in activities across Turkey, that there was a strong suspicion of crime and the reasons for detention were present given the fact that a conviction was created as to the effect that the suspects conveyed information and documents to the organization, that it is suspected that the suspects may tamper with the evidence given the fact that the organization engaged in activities across Turkey and the positions of the suspects, that the judicial control would prove to be insufficient given the upper limit of the penalty of the alleged crime and the scope of the organization, the current state of evidence, that the evidence was not yet completely collected, the suspicion of destruction and concealment of the evidence and of attempting to exert pressure on the aggrieved and witnesses and the amounts of penalties prescribed by law for the alleged crimes, (it was ruled) that they be separately DETAINED as per Articles 100/(1),(2-a,b,1,2), (3-a), (4), 101/(1),(2), 102/(2) and the subsequent articles of the the Code of Criminal Procedure No. 5271”.

13.     The applicant Burhan Kahraman was released after he remained in custody between 2/7/2015 and 5/7/2015 within the scope of the same investigation; following his being taken into custody again on 7/7/2012, he was detained with the claim that he had committed the crimes of “being a member of an organization established for the purpose of committing crime and acquiring documents pertaining to the security of the State” through the judgment of the 10^th Assize Court of Izmir (File No: 2012/28 of 8/7/2012 . The matters specified in the judgment of the Court No. 2012/27 (see § 12) were included in the reasoning of the judgment.

2.         Filing of the Case Regarding the Applicants

14.      The Chief Public Prosecutor’s Office of Izmir filed a criminal case regarding 357 suspects including the applicants through the indictment of 6/1/2013. The number of complainants in the indictment was shown as 196 persons while the number of the aggrieved was shown as 831 persons.

15.     In the indictment which the applicant Yavuz Pehlivan was requested to be sentenced for the crimes of “being a member of an organization established for the purpose of committing a crime, unlawfully recording personal data and acquiring forbidden information”, the following evaluation regarding the applicant was included:

       “It was found out that the suspect collected and recorded personal data about people on behalf of the organization. In the written response given to the letter addressed to the Turkish General Staff regarding the nature of the information and documents which the suspect acquired for the organization, it was seen that 7 of the information/documents were within the scope of Article 334/1 of the Turkish Criminal Code while 1 information/document did not contain any confidential information.”

16.     The following assessment was made in the indictment with regard to the applicant Burhan Kahraman who was charged with “being a member of an organization established for the purpose of committing crime, unlawfully recording personal data and acquiring forbidden information” and the applicants İdris Acartürk, Ergün Özkan and Merdin Kışkan who were charged with “being a member of an organization established for the purpose of committing crime and acquiring documents pertaining to the security of the State”:

 “... it was understood from the evidence collected and the scope of all documents that the suspect(s) engaged in activities on behalf of the organization under the coordination of the director of the organization C.B., conducted profiling with regard to persons, acquired the aforementioned information and documents for the organization and that therefore, they committed the crimes of being a member of the organization, recording personal data and acquiring forbidden information.”

17.     The following assessment was made in the indictment with regard to the applicant Erdal Özkan who was charged with “being a member of an organization established for the purpose of committing a crime and acquiring forbidden information”:

“In the written response given to the letter addressed to the Turkish General Staff regarding the nature of the information and documents which the suspect acquired for the organization, it was seen that 2 of the information/documents were within the scope of Article 334/1 of the Turkish Criminal Code.

…

In conclusion, it was understood from the evidence collected and the scope of all documents that the suspect engaged in activities on behalf of the organization by acquiring the aforementioned information and documents for the organization under the director of the organization E.Ç. through the member of the organization H.K. and therefore, he committed the crimes of being a member of the organization and acquiring forbidden information.”

3.         Judgments on the Continuation of Detention, Objection against Detention and the Applicants Access to the Case File

18.     The 12^th Assize Court of Izmir before which the trial was held ruled on the continuation of the state of detention of the detained accused including the applicants through the judgment of 29/1/2013 within the scope of the file No. E.2013/9. The following statements were expressed in the reasoning of the judgment:

        “It was understood that it was claimed that the detained accused acquired confidential military information and documents of various degrees within the scope of the activities of the criminal organization which was claimed to have been established for the purpose of acquiring confidential military information and documents of various degrees as regards the security of the State. In this context, there were information and documents in the computers and especially, in the database named pandora inside these computers and as a result of the searches duly conducted based on the court judgments within the investigation file, that the responses to letters received from the authorized institutions as to the effect that there were confidential information and documents as regards the security of the State, the communication interception minutes and the other certificates and documents seized during the searches conducted constituted the reasons for a strong suspicion as to the effect that the alleged crimes had been committed by references whose repetition was not deemed necessary here because of limited space and time, that some documents were subject to a change of quality and lower quality in terms of degree when compared to what is envisaged in the applicable articles of detention, that however, all of the evidence was not yet collected and some ciphers were not yet decrypted, but the work to this end was being carried out on behalf of the Public Prosecutor’s Office, that the statements of the accused were not yet taken during the trial process that would be held in line with the results obtained, that it might be necessary to release some of the accused rightfully or by one of the judicial control methods according to the applicable penalty articles in the upcoming stages exclusively related to the part of the filed case in the event no new evidence against them was obtained, that however, some evidence was not yet collected (and) defenses of the witnesses were not yet taken as of the current stage and that the trial was at the preliminary phase and it was necessary to rule upon the continuation of the state of detention of the accused.”  

19.     In paragraph 9 of the same judgment, the following statements were expressed as regards the 38 accused who were tried without detention:

       “ (it is ruled) that THE MEASURE OF JUDICIAL CONTROL (WITHOUT GOING ABROAD) BE APPLIED as per Article 110/3 and 109/1-3(a) of the Law No. 5271 as the ruling of a judgment of detention on the accused … at this stage, although they are not under detention, may cause their victimization by considering the detained accused in the same state, the applicable articles in the indictment on them and the content of their actions; the continuation of the case with the measure of detention was not proportionate although a strong suspicion of crime and the reasons for detention are present as per Article 101/2 of the Law No. 5271 amended and added with Article 97 of the Law No. 6352 when the quality and nature of the crimes alleged to them, the current state of evidence and the nature of measure of detention are taken into consideration.”

20.     Moreover, the Court issued the following interim judgments in the preliminary proceeding minute with the same date in relation to access to the information and documents within the case file:

        “(it was ruled) ...“291- ... that the request of the accused in line with their petition of request for the provision of the expert report and the annexes thereof to them as per Article 153/3 of the Code of Criminal Procedure be partially accepted and partially dismissed and that a copy of the expert report could be provided following the scanning and that it be specified that its annexes were among the documents which cannot be examined by persons other than the panel of judges and whose copy cannot be received due to their nature specified in the preliminary proceeding minute,

       …

       294-… bb- that as the gradual work is being conducted by the Chief Public Prosecutor’s Office on other criminal undeciphered parts of the digital data seized in the house of B.Ö. and the sort of documents which prevent the provisions of the file are listed in the database without any division, such request be dismissed,

       ...      

       299- …. That they be removed from the file as “the documents containing information of the quality of the State secret” as per Article 125/2 of the Code of Criminal Procedure and BE KEPT IN A CASE and, if necessary, for the examination thereof only by our panel of judges or a judge who will be assigned thereby”

21.     The applicant Yavuz Pehlivan objected to the judgment on the continuation of the state of detention, but his objection was dismissed through the judgment of the 6^th Assize Court of Bursa No. 2013/332 Misc. Works of 12/3/2013. The content of the digital material named “Pandora” seized within the scope of the file, computer records, communication interception minutes, the responses to letters received from competent institutions and organizations related to the security of the State on the documents obtained, statements of the accused and aggrieved at the phase of investigation and the content of many documents within the file were specified in the justification of the judgment as a strong suspicion of crime.  In the judgment, the reason for detention was shown to be the presence of files which were not yet deciphered and the technical work regarding which were going on and the presence of the possibility that the quality of the crimes alleged could change against the accused according to the content of these files, the evidence not yet being sufficiently collected and, accordingly, the presence of the suspicion of obfuscating the evidence, and it was stated that the measure of judicial control would prove to be insufficient. The judgment in question was notified to the applicant on 22/3/2013.

22.     The applicant Yavuz Pehlivan lodged an individual application with the Constitutional Court on 27/3/2013.

23.     The Court dismissed the request of the counsel of some of the accused of the provision of an image of the digital data on the following grounds at the hearing of 3/5/2013:

        “185- ... (it was ruled) that the REQUEST of the counsels of the accused for the copying of the digital data from the database under custody and the provision of all of them or those except for the information considered as the State secret be DISMISSED and that the provisions of paragraph 299 of the preliminary proceeding minute apply verbatim by considering that the data obtained from the pandora database were matters containing personal information/data whose disclosure was criminal, personal obscene images whose disclosure was criminal, documents, information or certificates as regards the security or domestic or foreign political benefits of the State, information/documents whose disclosure was forbidden according to the laws and regulatory acts of competent authorities and which needed to remain confidential due to their quality as a result of the examinations conducted during the preliminary investigation, that some of them were found to be of the documents containing information which were ruled to be properly separated due to their quality as a State secret, placed and kept in a case as per Article 125 of the Code of Criminal Procedure, that it was not possible to erase and prepare other parts from the database individually for each of the accused according to their association in a case with 357 accused, that their provision and distribution would also constitute a crime by law in the process although a case was filed, that the accusation alleged to the accused was clearly expressed in its indictment and there was sufficient data for them to make a defense in 330 folders provided to them by being scanned , that it was understood from the text and justification of the article that Article 125 of the Code of Criminal Procedure clearly constituted an exception of the provisions of Articles 134 and 153/4 of the Code of Criminal Procedure and that it was necessary to evaluate the “reason for- and the form of acquiring” the information/documents rather than the content thereof in terms of the alleged accusations.”

24.     At the session of the court of 5/7/2013, upon the request of some of the accused of the provision of the images of the digital data, the Court dismissed the request by stating that an expert examination would be made to be conducted on the digital database at a subsequent phase.

25.     At the same hearing, the Court ruled upon the continuation of the state of detention of the detained accused including the applicants on the ground that the documents and information present in the digital materials seized on the accused were of the quality of cases attesting to the existence of a strong suspicion of crime, that the evidence was not yet completely collected, that the suspicion of obfuscating the evidence was present and that it would prove to be insufficient to apply the measure of judicial control. The applicants objected against this judgment, but their objection was dismissed through the judgment of the 6^th Assize Court of Bursa No. 2013/629 Misc. Works of 17/7/2013. In the justification of the judgment, content of the digital material named “Pandora” seized within the scope of the file, computer records, communication interception minutes, the responses to letters received from competent institutions and organizations related to the security of the State on the documents obtained at this stage, statements of the accused and aggrieved at the phase of investigation and the content of many documents within the file were specified as a strong suspicion of crime. In the judgment, the reason for detention was shown to be the evidence not yet being sufficiently collected, the presence of the suspicion of obfuscating the evidence and the presence of the possibility that the quality of the alleged crimes could change against the accused and it was also stated that it would prove to be insufficient to apply the measure of judicial control.

26.     The judgment in question was notified to the applicants on 29/8/2013. The applicants except for Yavuz Pehlivan lodged an individual application with the Constitutional Court on 19/9/2013.

27.     At the hearing of 2/8/2013, it was ruled that as a report would be received from the Technical and Scientific Research Council of Turkey (TÜBİTAK) on the digital materials seized in terms of forgery, the accused and their counsels specify the matters that they wish to be answered in the report by the expert panel until the next hearing and that the state of detention of the detained accused continue on the same grounds (see § 25); and at the hearing of 27/9/2013, it was ruled that the requests of the accused be evaluated and the questions that form the basis of the evaluation be determined; and on 25/12/2013, it was ruled that the file be delivered to the experts for the drawing up of the expert report. It was seen that the report prepared by TÜBİTAK was delivered to the Court on 10/6/2014.

28.   The applicant Burhan Kahraman was released with the judgment of the 12^th Assize Court of Izmir dated 27/9/2013. Quality of the alleged crime and the state of the evidence collected were shown as the justification of the judgment.

29.     In its interim judgment of 16/1/2014, the Court evaluated the state of detention of other detained applicants and ruled on the continuation of the state of detention. In the judgment of the Court, the presence of the documents which needed to remain confidential for the security and the domestic and foreign political benefits of the State, information with regard to the private life of many public officials and military maps and sketches within the flash memories and hard disks seized on the accused was shown as cases attesting to the existence of a strong suspicion of crime. Moreover, the following justifications were included in the judgment:

       “… (it was understood) that it was necessary to receive a detailed evaluation report from the Turkish General Staff about the confidential information/documents which were seized and that the reports to be drawn up to this end were expected from the authority, that a comprehensive expert report was requested from the Technical and Scientific Research Council of Turkey (TÜBİTAK) on the database named pandora present in the external hard disk seized in the house of the accused B.Ö. and the digital materials seized on the accused and that the report was expected, that waiting for the results of the report to be drawn was a requirement for the trial and that in this sense, the evidence was not completely collected,

            That on the other hand, given the structure, functioning, activities and the sphere of influence of the criminal organization and the positions of the accused, it was possible for them to prevent the drawing up of the relevant reports and assessments in a sound way in the event that they were released, that it was possible to obfuscate the evidence in this way, that in this context, the reasons for detention stipulated in Article 100/(2-b)/1 and 2 of the Code of Criminal Procedure were present, that the European Court of Human Rights stated in its established judgments and justifications in relation to the measure of detention that the measure of detention could be applied in cases where the person had the risk of intervening in the functioning of justice, that these criteria and standards specified by the ECtHR occurred in the case file as specified above, that when all these matters were considered together, the detention was proportionate at this stage and that the objective expected from detention could not be achieved with the provisions of judicial control.”

30.  Upon the objection filed by the applicants Yavuz Pehlivan, Erdal Özkan, Ergün Özkan, İdris Acartürk and Merdin Kışkan on 16/1/2014 against the judgment on the continuation of detention, the 6^th Assize Court of Bursa ruled upon the dismissal of the objection of the applicants Ergün Özkan and Merdin Kışkan through its judgment (File No: 2014/26 Misc. Works of 23/1/2014.) In the reasoning the of judgment by the Court, it was stated that there was a strong suspicion of crime with regard to the crimes alleged to Ergün Özkan and Merdin Kışkan, that the criteria and standards with regard to the measure of detention were present at this stage depending on the quality of crimes and applicable articles and that the measure of judicial control would prove to be insufficient.

31.  In the same judgment, the Court ruled upon the release of the applicants Yavuz Pehlivan, Erdal Özkan and İdris Acartürk with the judicial control measure of not going abroad. In the reasoning of the judgment of release, it was stated that the alleged crimes did not have the possibility of turning into a quality which required a more severe penalty and that the continuation of the state of detention could cause victimization given the amounts of penalties shown for the alleged crimes in applicable articles and the actual period of detention.

32.     The Chief Public Prosecutor’s Office of Izmir filed a criminal case against a total of 134 accused through the indictment No. 2014/14 of 13/2/2014 in order for it to be joined with the file of the 12^th Assize Court of Izmir No. E.2013/9. It was stated that the indictment whose number of the aggrieved was 1272 and number of complainants was 317 was drawn up as regards the complainants and the aggrieved that were determined through the information and documents obtained from the physical and digital material seized in the houses and workplaces of the suspects as a result of the searches which started on 9/5/2012 and came from institutions following the drawing up of the indictment No. 2013/1. Through the judgment No. E.2014/20, K.2014/10 of 24/2/2014, the 12^th Assize Court of Izmir ruled upon the joinder of the case file with the file of the Court No. E.2013/9.

33.     The case on the applicants was transferred to the 5^th Assize Court of Izmir after the competence of the courts of special venue tasked with Article 1 of the Law on the Amendment of the Law on the Fight Against Terrorism and the Code of Criminal Procedure and Some Laws No. 6526 of 21/2/2014 came to an end and was recorded in the number of E.2014/100 of the Court.

34.     The Court ruled on the release of the applicants Ergün Özkan and Merdin Kışkan through the judgment of 11/4/2014.

35.     At the hearing of 21/1/2015, the 5^th Assize Court of Izmir ruled that an expert examination be made to be conducted over the digital materials again and that faculty members of universities be determined as experts, but ruled, at the hearing of 25/5/2015, that a new assignment be made due to the excuses of the previously assigned experts. It was determined through the examination of the hearing minutes that the digital materials were not given to the counsels of the accused as of 21/1/2015.

36.  The case on the applicants is still pending before the court of first instance.

B.       Relevant Law

37.     Article 135(1) of the Turkish Criminal Code No. 5237 of 26/9/2004 is as follows:

“A prison sentence of one year to three years shall be imposed on a person who unlawfully records personal data.”

38.     Article 220(2) of the same Code is as follows:

“Those who become a member of an organization formed with the intent to commit a crime shall be penalized with a prison sentence of one to three years. ”

39.     Article 327 of the same Code is as follows:

   “(1) A prison sentence of three to eight years shall be imposed on the person who acquires the information with regards to the security of the State or the domestic or external political benefits thereof which, due to its quality, needs to remain confidential.

   (2) If the act has been committed during war or has endangered the State’s preparations for war or its war effectiveness or military actions, a life imprisonment sentence shall be imposed.”

40.     Article 334(1) of the same Code is as follows:

“A prison sentence of one to three years shall be imposed on the person who acquires the information the disclosure of which has been prohibited by competent authorities as per laws and regulatory actions and which, due to their nature, need to remain confidential.”

41.     The relevant part of Article 100 of the Code of Criminal Procedure No. 5271 of 4/12/2004 is as follows:

“(1) A decision of detention may be made about the suspect or the accused in the presence of concrete evidence indicating the existence of strong suspicion of a crime and the presence of a ground for detention. A decision of detention cannot be made in the event that the importance of the case is not proportionate to the anticipated penalty to be given or to the security measure.

(2) Grounds for detention may be considered to exist in the following circumstances:

a) If there are concrete facts indicating or giving way to the suspicion that the suspect or accused will escape or hide.

b) If the suspect or accused’s behaviors give rise to strong suspicion on the matters of;

1. Destruction, concealment or alteration of corpus delicti,

2. Attempting to exert pressure on the witness, aggrieved or others.”

42.     Article 125 of the same Code is as follows:

    “(1) Documents containing information pertaining to the fact of a crime cannot be kept confidential as State secret against the court. 

    (2) The documents containing information on the quality of State secret may only be examined by the court judge or the court board. Information which is present in said documents and which is only of a quality that will enlighten the charged crime shall be made to be written in the court record by the judge or chief judge.

    (3) Provision of this article shall apply in relation to crimes whose lower limit of imprisonment is five years or more.

43.     The relevant part of Article 10 of the Law No. 3713 abolished with Article 19 of the Law No. 6526 is as follows:

“The cases that are filed due to the crimes that fall within the scope of this Law shall be tried in assize courts that are to be given competence in the provinces to be determined by the High Council of Judges and Prosecutors upon the proposal of the Ministry of Justice in a way that the jurisdiction may cover more than one province. The presidents and members of these courts cannot be assigned by the justice commission of judicial court to courts or work other than these courts.

…

The cases that are filed due to the crimes stipulated in the Turkish Criminal Code;

…

c) Crimes that are defined in Chapters Four, Five, Six and Seven of Section Four of Book Two (excluding Articles 305, 318, 319, 323, 324, 325 and 332),

shall be tried at the courts which are assigned according to the provision of paragraph one. Except for subparagraphs (d), (e), (f) and (h) of paragraph three, the provisions of this article shall also apply for the investigations and prosecutions that are conducted due to these crimes.”

IV.    EXAMINATION AND GROUNDS

44.     The individual application of the applicants(App. No: 2015/2312) was examined during the session held by the court on 4/6/2013 and the following was ordered and adjudged:

A.       The Applicants’ Allegations

45.     The applicant Yavuz Pehlivan alleged that he did not know what evidence was found pointing him out as a member of the criminal organization, that the source of the allegations was based on the digital information which was seized from a third party and the author of which was anonymous. He also alleged that the first and last recorder of this digital data was not him, that his name was only mentioned in the section of “file path”, that this path could be easily changed and everyone’s name could have been written there. He alleged that the digital data was not reliable, that no criminal evidence was found during the search conducted in his house, that similarly, no evidence was obtained against him as a result of the physical and technical surveillance conducted on him. He alleged that he had no suspicion of absconding nor tampering with the evidence and that he was exposed to discrimination in terms of detention and he filed a request for release and for non-pecuniary damages.

46.     Other applicants alleged that the guarantee of legal justice regulated in Article 37 of the Constitution was violated as the crime for which they stood trial was investigated by the public prosecutor's and judge's offices established for the purpose of the fight against terrorism although it was not a terror crime, and freedom-restricting judgments were issued. They also stated that they were detained although there was no strong suspicion of a crime, suspicion of intending to abscond or tampering with the evidence and that the suspicion of absconding was based on stereotype reasons. They alleged that the court judgments did not explain as to why the measure of judicial control would prove to be insufficient, that judicial authorities kept all the evidence, and that the possibility of being charged with a different crime could not be a ground for detention. They alleged that five of the 12 accused whose predicated actions would require a life imprisonment were under detention within the scope of the same file and therefore their right to personal liberty and security was violated. They also alleged that the restriction of the authority of making a duplicate of the file harmed their right of defense and was contrary to the principle of the equality of arms and the applicants filed a request for release and for non-pecuniary damages.

B.        The Constitutional Court’s Assessment

47.     It was concluded that the claim of the applicants' as to the effect that detention was unlawful needed to be examined within the scope of Article 19(3) of the Constitution, their claim as to the effect that the period of detention was not reasonable within the scope of paragraph seven of the same Article, their claim on the restriction of access to the case file within the scope of paragraph eight of the same Article and their claim of the violation of the principle of legal justice within the scope of Article 37 of the Constitution in connection with Article 19(3) . 

                   The complaint of the applicants with regard to the violation of the principle of equality was examined within the right to personal liberty and security as it was connected with this right.

1.         Admissibility

a.        The Allegation That the Detention Was Unlawful

48.     The applicants alleged that they were detained although there was no strong suspicion of crime nor a ground for detention.

49.     In the opinion of the Ministry of Justice, in brief, it was stated that it was expressed in the judgments of detention issued regarding the applicants that there was evidence attesting to a strong suspicion of crime as regards the alleged crimes and there was a possibility of tampering with the evidence and that similarly, the evidence on the applicants was explained in detail in the indictment.

50.     The applicants in their counter-opinions against the Ministry, in general, reiterated their previous statements.

51.     The relevant part of Article 48(2) the Law on the Establishment and Trial Procedures of the Constitutional Court No. 6216 of 30/3/2011 with the side heading “The conditions for an evaluation of admissibility of individual applications" is as follows:

“The Court, .... can rule on the inadmissibility of applications which are manifestly ill-founded.”

52.     After the fact that everyone has the right to personal liberty and security is stipulated as a principle in Article 19(1) of the Constitution, the cases in which persons can be deprived of their freedom are listed in a limited way in paragraphs two and three thereof on the condition that their forms and conditions are stipulated in the law. Therefore, the restriction of the right to liberty and security of a person can only be the case in the event that one of the cases specified within the scope of the aforementioned Article of the Constitution exists (Murat Narman, App. B: 2012/1137, 2/7/2013, § 42).

53.     In Article 19(3) of the Constitution, it is provided that individuals against whom there is strong indication of delinquency can only be detained through a judgment by a judge in order to prevent them from fleeing, prevent the destruction or tampering of the evidence or in other cases specified in the law which require detention. Accordingly, the detention of a person primarily depends on the presence of a strong indication that s/he has committed a crime. This is sought sine qua non for the measure of detention. For this, it is necessary to support an allegation with evidence which is substantial and plausible.  The nature of the facts and information which can be considered as plausible evidence is, to a large extent, based on the unique circumstances of the case at hand (Hanefi Avcı, B. No: 2013/2814, 18/6/2014, § 46).

54.      However, it is not certainly necessary that the evidence is collected at a sufficient level at the moment of arrest or detention in order for a person to be accused of a crime depending on this qualification. Because the aim of detention is to execute the judicial process in a more sound manner by proving the accuracy of or removing the doubts which constitute the basis of the detention of a person during the investigation and/or prosecution conducted. According to this, it is necessary not to evaluate the cases which will constitute the basis of the doubts that will form the basis of incrimination and the cases which will be discussed in the subsequent stages of criminal trial and constitute the justification of conviction at the same level (Hanefi Avcı, § 47).

55.      Detention is regulated in Article 100 and the subsequent articles of the Law No. 5271. According to Article 100, a person can only be detained in the event that there are facts which indicate the existence of strong suspicion regarding him/her as to the effect that s/he has committed a crime and there is a ground for detention. The grounds for detention are also specified in the article. According to this, a judgment of detention can be delivered (a) if the suspect or accused flees, hides or there are concrete facts which arouse the suspicion that s/he will abscond, (b) if the behaviors of the suspect or accused constitute a strong suspicion towards the facts of 1) destruction, concealment or tampering with the evidence, 2) attempting to coerce a witnesses, victims or others. In the rule, the offenses that can be considered to be a reason for detention if there is strong suspicion that they are committed are also stated as a list (Hanefi Avcı, § 48).

56.     On the other hand, as long as the rights and freedoms included in the Constitution are not violated, matters, as regards the interpretation of the law or material or legal mistakes in the judgments of the courts of instance, cannot be handled in the examination of an individual application. The interpretation of the provisions of the law on detention and their application to cases at hand are also covered by the discretionary power of the courts of instance. However, in case of a clear arbitrariness in the evaluation of the evidence through comments which are clearly contrary to the law or the Constitution, such judgments which result in the violation of a right and freedom should be examined in an individual application. The acceptance of the contrary does not accord with the aim of introducing the individual application (Murat Narman, § 48).

57.     In the case at hand, the existence of the suspicion of absconding and tampering with the evidence was shown in the judgments of detention delivered regarding the applicants as there were cases attesting to the existence of a strong suspicion of a crime and the evidence was not yet completely collected (see §§10-13).

58.     A criminal case was filed by the Chief Public Prosecutor’s Office against the applicants on 6/1/2013. The indictment included assessments with regard to the crimes alleged to the applicants (see §§15-17).

59.     In this case, it is concluded that the claim of the applicants as to the effect that there was no strong suspicion of crime and ground for detention is not admissible. The issue of whether or not the judgments on the continuation of detention were relevant and sufficient should be handled during the examination of whether or not detention was reasonable.

60.     Due to the reasons explained, it should be ruled that the part of the application as to the effect that detention was unlawful is inadmissible as “it is manifestly ill-founded”.

b.        The Allegation of Violation of the Principle of Legal Justice

61.     The applicants alleged that the guarantee of legal justice regulated in Article 37 of the Constitution was violated as they were investigated by the public prosecutor's and judge's offices established for the purpose of the fight against terrorism, although the crime for which they stood trial was not a terror crime, and freedom-restricting judgments were issued.

62.     In its opinion, the Ministry of Justice briefly expressed that this complaint was within the scope of the right to a fair trial and that remedies were not exhausted.

63.   The applicants did not submit any counter-opinions against the  Ministry regarding their allegations.

64.  Article 37 of the Constitution is as follows:

“No one may be tried by any judicial authority other than the legally designated court.

Extraordinary tribunals with jurisdiction that would in effect remove a person from the jurisdiction of his legally designated court shall not be established.”

65.  The concept of legal justice defined as the determination of the place of jurisdiction that will try the case before the commission of a crime or the occurrence of a dispute constitutes the basis of the right to “a trial before a legal, independent and impartial tribunal established by law ” which is the most important element of the right to a fair trial. The principle of legal justice regulated in Article 37 of the Constitution prevents the establishment of trial authorities or the appointment of judges after the committal of a crime or the occurrence of a dispute; it does not allow for the appointment of judges according to the accused or parties to a case. The principle bans the trial of a case before a tribunal to be established by a law to be enacted after the committal of a crime and, accordingly, the establishment of a court that is specific for a “person” or an “incident” (AYM, E.2009/52, K.2010/16, K.T. 21/1/2010).

66.  As the laws related to the criminal procedure should immediately apply independently from the will of the parties following their entry into force because they are relevant to public order, it is obligatory to execute each trial action according to the law that is in force on the date of execution. The matter that needs to be taken into consideration in the application of the norms of procedural law is whether or not the trial has come to an end on the date on which the new law enters into force. If the trial has not come to an end in a final fashion, as a rule, the new law should apply in the procedural actions to be performed following the entry into force of the new law (AYM, E.2009/52, K.2010/16, K.T. 21/1/2010).

67.  The guarantee of legal justice means all arrangements with regard to the organization of tribunals including not only the determination of matters which fall under the venue of tribunals, but also the establishment of each tribunal and the determination of their venue in terms of jurisdiction and puts forth the requirement of determining the competences and venues of tribunals in a clear and understandable manner (Tahir Gökatalay, B. No: 2013/1780, 20/3/2014,  § 80).

68.  The crimes regulated in Articles 327 and 334 of the Law No. 5237 which are among the crimes shown as the grounds for the detention of the applicants and the filing of a case against them in the present case are among the crimes listed in Article 10 of the Law No. 3713 that was abolished with Article 19 of the Law No. 6526. Therefore, as some of the crimes which are the subject of the trial of the applicants are within the scope of Article 10 of the Law No. 3713 in terms of ratione materiae, it is seen that the procedure of investigation and prosecution regarding the applicants was performed according to the provisions of this law.

69.     Due to the reasons explained, it should be ruled that the applicants’ allegation on the violation of the principle of legal justice is inadmissible as “it is manifestly ill-founded”.

c.         Other Complaints

70.     Complaints of the applicants as to the effect that the reasonings in the judgments on the continuation of detention proved to be insufficient, that the state of detention was sustained although there was no strong suspicion of crime nor a ground for detention and that access to the case file was restricted are not manifestly ill-founded.   Moreover, as there is no other reason for inadmissibility, it needs to be ruled that the part of the application as regards these complaints is admissible.

            2. Merits

71.     The applicants alleged that,

                                  i.     Their prohibition from examining and making duplicates of the documents in the file through the judgment of the 12^th Assize Court of Izmir was contrary to the principle of the equality of arms, that moreover, they could not exercise their right to have a technical examination conducted over the database named “Pandora” in which nearly all the evidence with regard to the case was present and, accordingly, they were not able to exercise their to defense.

                                ii.     The applicants also alleged that the reasonings in the judgments on the continuation of detention proved to be insufficient, that the state of detention was sustained although there was no strong suspicion of crime nor ground for detention and that it was not explained in the judgments on which concrete grounds judicial control would prove to be insufficient. 

72.     In the opinion letter of the Ministry of Justice, briefly, it was stated that

                                  i.     It was provided in Article 125 of the Law No. 5271 that the documents which contained information which qualified as State secret could only be examined by the judge or panel of the court, that in the present case, the 12^th Assize Court of Izmir dismissed the requests for making duplicates as the actions on the decryption of the database named “Pandora", which was the subject matter of the case, were ongoing and ruled that several documents were to be kept in a safe and examined only by the court or the judge to be assigned thereby as they were State secrets. Moreover, it was stated that the applicants were informed about the allegations regarding them and were allowed to examine certain documents during their interrogation at the public prosecutor's office,

                                ii.     It was specified in the interim judgments issued on the continuation of detention at the stage of investigation and trial that the objective expected from detention could not be achieved through the provisions of judicial control, that moreover, it was thought that the Court ruling on the release of certain accused who were tried under detention with the condition of judicial control by evaluating their legal state did not mean that discrimination was made among these persons.

73.     Briefly, in his counter-opinion against the Ministry, the applicant Yavuz Pehlivan stated that he remained in detention to an extent that would correspond to an execution of a sentence of 4 years as his period of detention was 1 year and 6 months. He also stated that his detention period turned into execution given the amounts of penalties stipulated in the law for the alleged crimes and that this was not reasonable. He stated that the Court ruled on the continuation of detention due to the suspicion of tampering with evidence although the trial authorities had the computer data named “Pandora” which was the only evidence as regards the alleged crime right from the beginning. He stated that the state of evidence was the same for all the accused who were detained and not detained within the scope of the file and that however, he was tried under detention. He also stated that the digital evidence named “Pandora” was seized illegally. 

In their statement against the opinion of the Ministry, the applicants Merdin Kışkan, Erdal Özkan and Burhan Kahraman, briefly, expressed that they did not have any requests with regard to the violation of the right to a fair trial as the trial was pending. They also stated that they remained under detention for 1 year and 6 months although the periods of imprisonment stipulated in the Law in terms of the alleged crimes which were regulated in Article 220(2) and Article 334(1) of the Law No. 5237 were within the scope of postponement, administrative fine, conversion to a precautionary measure as prescribed in the Law No. 5237 and the postponement of the pronouncement of the judgment regulated in the Law No. 5271.  

74.     Article 19(7-8) of the Constitution is as follows:

"Persons under detention shall have the right to request a trial within a reasonable time and to be released during investigation or prosecution. Release may be conditioned by a guarantee as to ensure the presence of the person at the trial proceedings or the execution of the court sentence.

Persons whose liberties are restricted for any reason are entitled to apply to the competent judicial authority for a speedy conclusion of proceedings regarding their situation and for their immediate release if the restriction imposed upon them is not lawful."

75.     As per the aforementioned provisions of the Constitution, an individual whose liberty is restricted has the right to apply to an authorized judicial body in order to ensure that a judgment is issued on his/her case as soon as possible and in order to be released immediately if such restriction is in violation of the law.  Even if it is not possible to ensure all guarantees of the right to a fair trial in this procedure that is prescribed in the paragraph, it is necessary to ensure the solid safeguards that are suitable for the circumstances of the alleged detention through a judicial judgment (Mehmet Haberal, B. No: 2012/849, 4/12/2013, §§  122-123).

76.  It is necessary to abide by the principles of “the equality of arms” and “adversarial trial” in the examination of the continuation of the state of detention or the requests for release (Hikmet Yayğın, B. No: 2013/1279, 30/12/2014, § 30). The principle of the equality of arms means the subjection of the parties to a case to the same conditions in terms of procedural rights and the fact that one of the parties has the opportunity of stating its claims and defenses before a court in a reasonable way without it being placed in a weaker position than the other one. Even if there is no evidence as to the effect that an advantage which is granted to one of the parties, but not granted to the other one has actually borne a negative consequence, the principle of the equality of arms is deemed to be violated (Bülent Karataş, B. No: 2013/6428, 26/6/2014, § 70).

77.  The principle of an adversarial trial requires granting the parties the right to have information regarding the materials of the case and to comment on the case and accordingly, the participation of the parties in the entire trial in an active way. The principle of an adversarial trial is closely related to the principle of the equality of arms and these two principles are complementary to each other. Because, in the event that the principle of the adversarial trial is violated, the balance between the parties in terms of defending their cases will be disrupted (Bülent Karataş, § 71).

78.  The European Court of Human Rights (ECtHR) considers the deprivation of a defense counsel from the examination of the file as a violation of the principle of the equality of arms (Ceviz v. Turkey, App. No: 8140/08, 17/7/2012, § 41). However, according to the ECtHR, the right to adversarial proceedings can be restricted to the extent required for national security, the requirement of keeping secret the police methods as regards criminal investigations or the protection of the fundamental rights of a third party and of public order. Nevertheless, during the trial, it is necessary to eliminate the difficulties caused by the restriction of the rights of the defense in a sufficient manner (see A. and  Others v. the United Kingdom, App. No: 3455/05, 19/2/2009, § 205).  

79.  The ECtHR ruled that an applicant has access to the documents which form the basis for detention, has sufficient information about their contents and, therefore, has the opportunity of objecting against the justifications of the state of detention in a sufficient manner in the event that the applicant was asked questions, while his/her statement was being taken, with regard to the content of the documents access to which was restricted and the content of these documents was referred to in the objection of the applicant against the judgment of detention (see Ceviz v. Turkey, § 43; Hebat Aslan and Firas Aslan v. Turkey, App. No: 15048/09, 28/10/2014,  § 62). However, the ECtHR ruled that the judgment on the restriction of access violated Article 5(4) of the European Convention on Human Rights (Convention) in the event that the main evidence which formed the basis for the allegations was not the evidence found on the applicant, but the computer documents and files which were found on third parties and which a judgment of restriction of access was based upon, that the applicant and his/her defense counsel did not have sufficient information about the content of these documents which were of great importance in order to object against the lawfulness of detention and that the grounds of the judgment of restriction of access were not sufficient (see Nedim Şener v. Turkey, App. No: 38270/11, 8/7/2014, §§ 83-86).

80.     In the present case, the evidence which was shown as the basis for the crimes that the applicants were charged with is not the evidence seized from the applicants, but digital materials seized from third parties and it is seen that the judicial authorities did not let the applicants who were tried under detention examine this evidence and make a technical examination conducted over them during their period of detention in the process of investigation and prosecution. It is concluded that the applicants did not have sufficient information regarding the content of the digital materials and documents which were of great importance for objecting against the lawfulness of detention in an effective manner and did not have the opportunity of conducting a technical examination over the relevant digital materials either, and therefore, the principle of the equality of arms was violated.

81.     On the other hand, whether or not the period of detention is reasonable should be examined according to the circumstances of each case. The presumption of innocence that is stipulated as “No one shall be considered guilty until proven guilty in a court of law” in Article 38 of the Constitution requires that during the trial, the freedom of an individual is essential and detention is exceptional. The continuation of detention in spite of the presumption of innocence can be considered to be justified in spite of the presumption of innocence only if there is a public interest which overrides the right to personal liberty and security. For this reason, pursuing that detention does not exceed a reasonable duration in a case is primarily the duty of the courts of instance. To this end, all incidents which affect the mentioned requirement of public interest should be evaluated by the courts of instance and these facts should be put forth in the judgments regarding the requests for release (Murat Narman, §§ 61- 62). Moreover, it is obligatory to base the grounds for detention and the continuation of detention on the facts/evidence that is the basis of the allegation and to explain these facts in the judgments together with their reasonings.

82.      The precaution measure of detention can be resorted to in the presence of a strong indication on the delinquency of individuals and in order to prevent these individuals from absconding and from the destruction of the evidence or from tampering with it. Even if these grounds for detention can be initially considered to be sufficient for the continuation of detention up to a certain period, after the expiry of this period, it is necessary to show that the grounds for detention still continue to exist together with their reasonings in the judgments as regards extension. In the event that these reasonings are considered to be “relevant” and “sufficient”, it should also be examined whether or not the trial process was executed diligently.  Factors such as the complexity of a case, whether or not it is related to organized crimes or the number of the accused are taken into account when evaluating diligence shown in the functioning of the process (Murat Narman, § 63).

83.     On the other hand, the right to liberty should not be interpreted in a way that may result in rendering extremely difficult the effective fight of judicial authorities and security officers, particularly against organized crimes (Hanefi Avcı, § 69).

84.     Moreover, as long as the strong indication that a person who is detained in accordance with the law has committed a crime and the ground for detention continues to exist, it is necessary, as a principle, to accept that the state of detention up to a certain period is reasonable (Murat Narman, § 65).

85.     The reasonable period is calculated starting from the date of arrest and taken into custody in cases where the applicant has been previously arrested and taken into custody, and from the date of detention in cases where s/he is directly detained. The end of the period is, as a rule, the date on which the person is released (Murat Narman, § 66).

86.  In the present case, the period of detention for the applicant Burhan Kahraman is 1 year, 2 months and 23 days, for the applicant Yavuz Pehlivan, is 1 year, 6 months and 16 days, for the applicant Merdin Kışkan is 1 year, 9 months and 8 days, for the applicant İdris Acartürk is 1 year, 6 months and 21 days, for the applicant Ergün Özkan is 1 year, 9 months and 28 days and for the applicant Erdal Özkan is 1 year, 7 months and 10 days. It is understood that the access of the applicants to essential evidence which formed the basis of the allegation could not be ensured during this period. As it is necessary to evaluate whether or not the period of detention is reasonable according to the circumstances of each case, it is necessary to evaluate whether or not the periods of detention of the applicants is reasonable in terms of the present case and, accordingly, whether or not relevant and sufficient grounds were shown in the court judgments with regard to the continuation of detention by considering the failure to have access to the essential evidence which formed the basis of the allegation.  

87.     The failure to have access to essential evidence which was seized from third parties and formed the basis of the allegation can be considered as reasonable up to a certain period. However, in such cases, it is necessary to act in a more diligent way in terms of the continuation of detention when compared to other states of detention. Because, when there is insufficient information about the cases which form the basis of the allegation and no opportunity of investigating these exists, it will be significantly difficult for the applicants to effectively exercise their right to request for release.

88.     In the present case, the fact that the applicants were kept in detention where they could not access essential evidence which was seized from third parties and formed the basis of the allegation and, therefore, could not convey their requests for release in an effective way for periods varying from nearly 1 year and 2 months to 1 year and 9 months cannot be accepted as a reasonable period. Considering the circumstances of the present case, the reasonings in the judgments delivered on the continuation of detention and upon objection are not relevant and sufficient in a way to justify detention for the aforementioned periods.

89.      Due to the reasons explained, it should be ruled that Article 19(7-8) of the Constitution was violated as regards the applicants’ allegation as to the effect that the period of detention was not reasonable.

            3.  Application of Article 50 of the Law No. 6216

90.       In Article 50(1) of the Law No. 6216, it is provided that in the event that a judgment of violation is delivered at the end of the examination on merits, the necessary actions to remove the violation and its consequences are adjudged; however, it is adjudged that a review for legitimacy cannot be done and that a judgment which qualifies as an administrative act and action cannot be delivered.

91.     In the application, it has been concluded that Article 19(7-8) of the Constitution was violated. The state of detention came to an end when a judgment of release was delivered regarding the applicants. In this case, it is understood that there is nothing that needs to be done in order to remove the consequences of the violation apart from the determination thereof.

92.     The applicant Yavuz Pehlivan filed a request for pecuniary and non-pecuniary damages of TRY 500,000.00 while other applicants filed a request for non-pecuniary damages of TRY 50,000.00.

93.     The applicant Yavuz Pehlivan did not submit any documents to the Constitutional Court in relation to the pecuniary damages he claimed to have incurred. In order for the Constitutional Court to rule on pecuniary compensation, a causality relation needs to be established between the pecuniary damages which the applicant claims to have incurred and the request for compensation. It is necessary to dismiss the request for pecuniary damages by the applicant who did not submit any documents to the Constitutional Court.

94.     Considering the circumstances of the case at hand, in return for the non-pecuniary damages of the applicants that are of an extent which cannot be compensated only with the determination of the violation due to the intervention in the right to liberty and security, it should be ruled that non-pecuniary damages of net TRY 5,000.00 be separately awarded to each applicant.

95.      It should be ruled that the trial expenses which were made by the applicants and whose breakdown is stated below be paid to the applicants.

V.       JUDGMENT

In the light of the reasons explained, it is UNANIMOUSLY held on 4/6/2015

A.   That the application

1.         is INADMISSIBLE as regards the allegation as to the fact that the detention was not lawful as “it is manifestly ill-founded”,

2.         is INADMISSIBLE as regards the allegation of violation of the principle of legal justice as “it is manifestly ill-founded”,

3.         is ADMISSIBLE as regards the allegations as to the effect that the period of detention was not reasonable and that access to the case file was restricted,

4.         That Article 19(7-8) of the Constitution was VIOLATED as regards the allegations as to the effect that the period of detention was not reasonable and that access to the case file was restricted,

B.  That the applicants separately be paid non-pecuniary compensation of net TRY 5,000.00 and that their other requests regarding compensation be DISMISSED,

C. That the trial expenses of TRY 1,698.35 composed of the fee of TRY 198.35 and the counsel’s fee of TRY 1.500,00 which were made by the applicant Yavuz Pehlivan and determined in accordance with the documents in the file be PAID to the applicant in question,

D. That the fee of TRY 198,35 incurred by the applicant Burhan Kahraman for the application No. 2013/7075, by the applicant İdris Acartürk for the application No. 2013/7073, by the applicant Merdin Kışkan for the application No. 2013/7074, by the applicant Erdal Özkan for the application No. 2013/7077, by the applicant Ergün Özkan for the application No. 2013/7076 and determined in accordance with the documents in the file be separately paid and that the counsel’s fee of TRY 1,500.00 be jointly PAID to the applicants Burhan Kahraman, İdris Acartürk, Merdin Kışkan, Ergün Özkan and Erdal Özkan,

            E. That the payments be made within four months as of the date of application by the applicants to the Ministry of Finance following the notification of the judgment; that in the event that a delay occurs as regards the payment, the legal interest be charged for the period that elapses from the date, on which this period comes to an end, to the date of payment.