REPUBLIC OF TURKEY

CONSTITUTIONAL COURT

SECOND SECTION

JUDGMENT

HANEFİ AVCI

(Application no. 2013/2814)

SECOND SECTION

JUDGMENT

I.       SUBJECT-MATTER OF THE APPLICATON

1.      The applicant alleged that Articles 19 and 36 of the Constitution were violated by claiming that the arrest warrant issued on him was unlawful; that the objections which he filed against the court decisions as regards his detention and the continuation of detention were dismissed through stereotype justifications; that no effective legal remedy was present in domestic law against these decisions. The applicant also alleged that he was detained for an unreasonable period of time; that the continuation of his detention in spite of existence of no concrete evidence on his criminality hinders the presumption of innocence; that he was still  detained on remand while some suspects who were accused of being a member of an organization within the scope of the same file were released.

II.    APPLICATION PROCESS

2.      The application was directly lodged with the Constitutional Court on 2/5/2013. As a result of the preliminary administrative examination of the petition and its annexes, it has been determined that the application had no deficiency which would prevent its submission to the Commission.

3.      It was decided by the Third Commission of the Second Section on 17/7/2013 that the examination of admissibility of the application be conducted by the Section and the file be sent to the Section.

4.      The Section, in the session held on 12/12/2013, decided that the examination of admissibility and merits be carried out concurrently.

5.      The facts which are the subject matter of the application were notified to the Ministry of Justice on 16/12/2013. The Ministry of Justice submitted its observations to the Constitutional Court on 17/2/2014.

6.      The observations submitted by the Ministry of Justice to the Constitutional Court were notified to the applicant on 18/2/2014. The applicant submitted his counter-opinion to the Constitutional Court on 19/3/2014.

III. THE FACTS

A. The Circumstances of the Case

7.      As expressed in the application form and the annexes thereof and the observations of the Ministry of Justice, the facts are summarized as follows:

8.      The applicant was detained on the grounds of "aiding and abetting the members of a terrorist organization, breaching the confidentiality of an investigation file, influencing those who were fulfilling their judicial duties and on the basis of the nature of the offences the suspect is charged with based on the allegation of causing the persons involved in anti-terrorism to become targets, the existing evidence against him, the presence of facts which gave rise to strong suspicion that he committed the charged offences, the fact that some of the offences he was charged with were among the ones stipulated in Article 100/3-a of the Code of Criminal Procedure, the fact that the evidence was not completely collected and the possibility of tampering with the  evidence by the suspect due to his position" through the decision of the 14^th Chamber of the İstanbul Assize Court (File No:2010/53 dated 28/09/2010) with the allegations that he aided and abetted a terrorist organization and its members, he breached the confidentiality of the investigation file, he influenced  those who were fulfilling their judicial duties, he caused those who were involved in anti-terrorism to become targets within the scope of the investigation of the İstanbul Chief Public Prosecutor's Office no. 2009/1868.

9.      On 5/10/2010, the applicant requested his release against the arrest warrant of the 14^th Chamber of the İstanbul Assize Court dated 28/09/2010 by stating "... that the reasons for detention were not read in his presence; that the existing evidence is in his favor; that during the interrogation he did not accept anything other than those written in the book written by him; that there is no action which constitutes an offence in the book; that he reflected on the future as it is his responsibility as an intellectual in this book relying on the right to freedom of thought and expression within the scope of Articles 9 and 10 of the European Convention on Human Rights ("the Convention"); that detention pending trial is exceptional according to the regulatory provisions on the limitation of arrest in Article 100 of the Code of Criminal Procedure within the framework of the libertarian understanding which brings the individual forward; that release pending trial has turned into a rule now; that the evidence on merits was completely collected; that there is no possibility his tampering with the evidence; that detention is indeed a measure; that it is highly probable for him to be acquitted in accordance with Article 223 § 2 of the Code of Criminal Procedure as there is no concrete, sufficient and material evidence about him; and that it should be decided that he be released justly or, if the court considers otherwise, by resorting to bail or one of the conditional bail measures according to the provisions of Article 200 and et. seq. of the Code of Criminal Procedure".

10.  As a result of the examination carried out ex officio as regards the detention of the applicant by the 9^th Chamber of the İstanbul Assize Court according to Article 108 of the Code no. 5271, the applicant’s continued detention was ordered through its decision (Misc. No: 2010/1331 and dated 26/11/2010) on the grounds of "... the nature of the offence he is charged with, the fact that the offences are among the ones stipulated in Article 100 § 3 of the Code No.5271, the fact that the reasons for detention still exist, the fact that the investigation has not been completed yet and the fact that the measures which are alternative to detention measure will be insufficient in terms of the suspect".   

11.  The indictment of the İstanbul Prosecutor's Office dated 24/1/2011 about 22 suspects also including the applicant was accepted by the 12^th Chamber of the İstanbul Assize Court on 4/2/2011.

12.  The 12^th Chamber of the İstanbul Assize Court decided on the continuation of the applicant’s detention at the first hearing of 13/4/2011.

13.  On 19/4/2011, the applicant objected to the decision of the 12^th Chamber of the İstanbul Assize Court on his continued detention at the hearing dated 13/4/2011. His objection was dismissed through the decision of the 13^th Chamber of the İstanbul Assize Court (Misc. No: 2011/308 and dated 12/5/2011) on the grounds of "... the sanction required by the offence imputed to the suspect, the findings indicating strong suspicion of guilt on his part and that the alleged offence is one of offences stipulated in Article 100/3 of the CCP".

14.  The applicant applied to the incumbent court and requested his detention be ended on the dates of 17/11/2011, 6/2/2012, 30/4/2012, 6/7/2012, 7/8/2012, 5/10/2012, 26/11/2012, 4/1/2013, but his requests were dismissed by the court. The objections filed by the applicant to the decisions of dismissal delivered by the courts were also dismissed.

15.  Lastly, the applicant applied to the 9^th Chamber of the İstanbul Assize Court on 4/2/2013 and requested the termination of his detention and his release. The 9^th Chamber of the İstanbul Assize Court decided on the applicant’s continued detention during the 17^th hearing dated 4/2/2013.

16.  The applicant objected to this decision on his continued detention. His objection was dismissed through the decision of the 10^th Chamber of the İstanbul Assize Court (Misc. No: 2013/78 and dated 7/3/2013). The decision of dismissal was notified to the applicant on 1/4/2013.

17.  The applicant’s detention was also assessed ex officio by the 9^th Chamber of the İstanbul Assize Court on the dates of 22/6/2011, 21/7/2011, 10/1/2012, 21/6/2013, 19/7/2012, 6/9/2012, 20/11/2012, 18/12/2012, 22/1/2013, 26/2/2013 in accordance with Article 108 of the Code no. 5271, and a decision ordering the applicant’s continued detention was delivered.

18.  It was decided through the decision of the 9^th Chamber of the İstanbul Assize Court on 19/7/2013 that the applicant be sentenced to imprisonment of five years and seven months for "aiding an illegal armed terrorist organization, namely Devrimci Karargah (Revolutionary Headquarters) and its members" in accordance with Articles 220 § 7 and 314 § 2 of the Turkish Criminal Code no. 5237, to imprisonment of five years and a judicial fine for "carrying unregistered fatal full-automatic and semi-automatic guns"; to imprisonment of two years and six months for "influencing the officials who perform their judicial duties"; as well as imprisonment of two years, two months and twenty days for "breach of the confidentiality of the investigation". The court also ordered his continued detention and ruled that a criminal complaint be filed for the forgery of official documents.

19.  The applicant’s case has been pending at the appellate stage.

B. Relevant Law

20.  Article 220 § 7 of the Code no. 5237 is as follows:

"A person who, without being involved in the hierarchical structure within the organization, knowingly and willingly aids the organization shall be penalized as a member of an organization.

The penalty to be imposed due to becoming member to an organization can, depending on the nature of the aid provided, be abated by up to one thirds.”

21.  Article 314 of the Code no. 5237 is as follows:

"(1) A person who forms or conducts an armed organization with the purpose of committing the offences in the fourth and fifth chapters of this section shall be penalized with a prison sentence of ten to fifteen years.

(2) A prison sentence of up to ten years shall be imposed on those who join the organization defined in paragraph one."

22.  Article 100 of the Code of Criminal Procedure no. 5271 is as follows:

"(1) A warrant of detention can be issued about the suspect or accused in the presence of facts indicating the existence of strong suspicion of guilt and the presence of a ground for detention.

A warrant of detention cannot be issued in the event that importance of the case is not proportionate to the anticipated penalty and security measure to be imposed.

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

a)     If there are concrete facts indicating that the suspect or accused will escape and arising suspicion towards the suspect or accused escaping or hiding.

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

1. Destroying, concealing or tampering with the evidence,

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

(3) Grounds for detention can be considered to exist in the presence of grounds for strong suspicion that the offences below have been committed:

…

11.

Offences Against the Constitutional Order and the Operation of Said Order (Articles 309, 310, 311, 312, 313, 314, 315),

…”

23.  Article 108 of the Code no. 5271 is as follows:

“…

(3) The judge or court shall decide ex officio whether or not the continuation of detention of the accused held in a detention house will be necessary in each session or between sessions when conditions thus require or within the time period prescribed under paragraph one."

IV. EXAMINATION AND GROUNDS

24.  The individual application lodged by the applicant (no. 2013/2814 and dated 2/5/2013) was examined during the session held by the Court on 18/6/2014, and accordingly it was held:

A. The Applicant’s Allegations

25.  The applicant;

i. Alleged that Article 13 of the Convention was violated by claiming that the decisions delivered by the court on the restriction of his freedom were contrary to law; that his requests for release were dismissed through stereotype justifications; and that there was no effective remedy to which he can resort in domestic law in order to challenge the illegal decisions on his detention and continued detention, 

ii. Alleged that Article 5 § 1 of the Convention was violated by claiming that the decisions delivered as a result of the examinations as to his detention carried out ex officio by the relevant court in accordance with Article 108 of the Code no. 5271 were not notified to him; and that thus, he could not find an opportunity to challenge these decisions,

iii. Alleged that Article 5 § 1 of the Convention was violated by claiming that his detention was unlawful; and that his requests for release were dismissed through stereotype justifications without being based on any facts,

iv. Alleged that Article 5 § 1 of the Convention was violated by asserting that his objections as to the dismissal of his requests for release were also dismissed through stereotype justifications,

v. Alleged that Article 5 § 3 of the Convention was violated by claiming that there was no sufficient reason and reasonable doubt that would justify his continued detention; that the accusations against him were only based on the excerpts made from the book written by him without an inquiry into issues both against and in favour of him with respect to the restriction of his freedom and without any evidence; that he was detained for an unreasonable period of time; and that his detention continued while some suspects who were accused of being a member of an organization within the scope of the same file were released,

vi. Alleged that "the presumption of innocence" set forth in Article 6 § 2 of the Convention was violated due to the continuation of his detention although no evidence proving his guilt was put forth between the date on which he was taken into custody and the date of his application with the Constitutional Court,

and reserved the right to claim for damages.

B. The Constitutional Court’s Assessment

1. Admissibility

a. Alleged Non-Existence of an Effective Legal Remedy against Detention Orders

26.  The applicant alleged that there was no effective remedy to which he can resort in order to challenge the detention order and the decision ordering his continued detention, which were delivered unlawfully.

27.  The Ministry of Justice stated that the complaint that the decisions delivered as a result of the judicial review of detention carried out ex officio by the courts were not notified to the applicant was related to Article 108 of the Code no. 5271; that such complaints were examined by the ECHR in accordance with Article 5 § 4 of the Convention, and that  Article 5 § 4 of the Convention did not include the obligation of providing explanations for all grounds maintained by detained persons in all types of their requests for release; however it was necessary for the court dealing with these requests to include concrete claims and findings that would not cast suspicion on the lawfulness of detention.

28.  The applicant reiterated his allegations in the application form and did not make a new statement on this issue.

29.  In the examination of an individual application, the joint protection realm of the Constitution and the Convention is taken as the basis for determining whether an alleged violation falls into the jurisdiction of the Constitutional Court in terms of the subject-matter (no. 2012/1049, 26/3/2013, § 18). The right to an effective remedy is set forth in Article 40 of the Constitution and Article 13 of the Convention.

30.  It is not possible to evaluate in an abstract manner the applicant’s alleged violation of the right to an effective remedy enshrined in Article 40 of the Constitution and Article 13 of the Convention given the expressions in the aforementioned Articles, and it is absolutely necessary to discuss them in conjunction with other fundamental rights and freedoms stipulated within the Constitution and the Convention. In other words, in order to discuss whether the right to an effective remedy has been violated or not, it is necessary to address the question in respect of which fundamental right and freedom the right to an effective remedy has been restricted (no. 2012/1049, 26/3/2013, § 33).

31.  In the present case, the essence of the applicant’s allegation is related to the fact that the objections which he filed to the detention orders were dismissed through stereotype justifications. It is necessary to examine this allegation within the framework of Article 19 § 7 of the Constitution.

b. The Allegation that He could not Find an Opportunity to Challenge the Decisions Delivered by the Inferior Court as a Result of the Judicial Review of Detention Carried Out Ex Officio as These Decisions were not Notified to Him

32.  The applicant alleged that the decisions delivered by the inferior court as a result of the judicial review of detention carried out ex officio were not notified to him; and that therefore he could not find an opportunity to challenge these decisions.

33.  In its observations, the Ministry of Justice stated that the relevant complaint was related to the judicial review carried out by the inferior court according to Article 108 of the Code no. 5271; that the applications as regards the unlawfulness of detention filed before a certain court in a way that would cover the examination of the objections filed against both the requests for release and the continuation of detention were assessed by the ECHR within the framework of Article 5 § 4 of the Convention; and that judicial reviews which were periodically carried out on the continuation of detention did not fall into the scope of this right.

34.  The applicant did not make any statements against the observations of the Ministry of Justice.

35.  Article 19 § 8 of the Constitution is as follows:

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

36.  Article 5 § 4 of the Convention is as follows:

"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."

37.  Article 19 § 8 of the Constitution and Article 5 § 4 of the Convention grant a person whose freedom is restricted for whatsoever reason the right to apply to a court which can speedily decide on the unlawfulness of his detention and order his release if his detention is not lawful. The aforementioned provisions of the Constitution and the Convention essentially constitute a guarantee for the judicial review of the requests for release or the decisions on the extension of detention in the cases which are tried before a court upon an application as regards the unlawfulness of detention (no. 2012/1158, 21/11/2013, § 30).

38.  In Article 108 of the Code No. 5271, it is provided that it shall be decided by the magistrate judge upon the request of the Public Prosecutor during the investigation stage whether the continuation of detention will be necessary or not in the period during which the suspect is in a detention house and at intervals of thirty days at the latest, by taking into consideration the provisions of Article 100; that it shall be decided ex officio by the judge or the court during the prosecution stage whether the continuation of detention of the detained accused will be necessary or not at each session or between sessions as required by the circumstances or within a period of thirty days at the latest.

39.  The assessment to be carried out according to Article 108 of the Code no. 5271 is carried out on its own motion (ex officio), and it cannot be considered to be within the scope of the right to object before a judicial authority granted for a person whose freedom is restricted in accordance with Article 19 § 8 of the Constitution (no. 2012/1158, 21/11/2013, § 32).

40.  Due to the reasons explained above, it should be decided that the applicant’s complaints that "the decisions delivered as a result of the judicial reviews of his detention carried out ex officio by the inferior court were not notified to him and that therefore he could not find an opportunity to object to these decisions" are inadmissible due to "lack of jurisdiction ratione materiae".

c. Alleged Deprivation of Liberty in spite of Non-existence of Strong Evidence of Guilt and Ground for Detention

41.  The applicant alleged that he was deprived of his liberty although there was no strong suspicion of guilt and ground for detention.

42.  In its observations, the Ministry of Justice stated that according to the judgments of the ECHR ,in order for a person to be deprived of his liberty with the suspicion that he has committed an offence, there needs to be reasonable suspicion or plausible reasons (raisons plausibles) as to the effect that the relevant person has committed the alleged offence; that this requirement is sine qua non in terms of detention and it needs to sustain its existence in every state during which detention continues; that the relevant person needs to be released at the moment at which reasonable doubt disappears; that reasonable doubt needs to be sufficient enough to convince an observer who overviews the incidents independently and is completely objective also given the collected evidence and the unique conditions of the given case; that a person who is suspected of having committed an offence should not be detained through a judicial decision which is completely devoid of any ground; that however detention of a suspect or accused by showing some grounds justifying detention cannot be considered to be arbitrary; and that a similar approach has also been embraced by the Constitutional Court.

43.  The applicant did not agree with the observations of the Ministry by asserting that he did not have any relations with the alleged organization and that he did not have any relation with the suspect N.K. who was alleged to be a member of the organization, except for their friendship. He stated that the allegation of breaching the confidentiality of the investigation did not reflect the truth; that the alleged possessing of an unregistered gun was not true; that the guns were registered according to the legislation of the state of emergency; and that the other guns at his home were registered in the name of his wife. The applicant also stated that the risk of flight was not a matter of concern as he had a fixed residence; that he did not have the possibility of tampering with the evidence as taped recordings which were put forth as evidence, his book, the guns which were claimed to be seized in Eskişehir were already secured by the judicial authorities. He also claimed that he was arbitrarily detained; that there was no public interest in his detention; and that the investigation authorities created the impression that an offence had been committed by leaking all data at their hands to the press.

44.  Article 48 § 2 of the Code no. 6216 titled ''the conditions and evaluation of admissibility of individual applications" is as follows:

"The Court can decide on the inadmissibility of the applications which are manifestly ill-founded."

45.  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 liberty on condition of stipulating the way and conditions of such deprival are listed non-exhaustively in the second and third paragraphs. Therefore, the right to liberty and security of a person can only be restricted in the event that one of the cases specified within the scope of the aforementioned Article of the Constitution exists (no. 2012/239, 2/7/2013, § 43).

46.  In Article 19 § 3 of the Constitution, it is provided that individuals against whom there is strong indication of guilt can only be detained through an order of a judge in order to prevent them from fleeing, destroying or tampering with the evidence or in similar cases specified in law which necessitate detention. Accordingly, the detention of a person primarily depends on the presence of a strong indication that he has committed an offence. This is sought sine qua non for detention Therefore, it is necessary to support an allegation with plausible and solid evidence. Nature of the cases and information which can be considered as plausible evidence is to a large extent based on the particular circumstances of each concrete case.

47.  However, it is not always necessary that sufficient evidence had been collected at the moment of arrest or detention in order for a person to be accused of an offence depending on this qualification. As a matter of fact, the aim of detention is to execute the judicial process in a sound manner by proving the accuracy or removing the doubts which constitute the basis of the detention of a person during the executed investigation and/or prosecution. According to this, the facts that will form a basis of criminal accusation and the facts which will be discussed in the subsequent stages of proceedings and constitute a ground for conviction must not be considered to be of the same degree (no. 2012/1272, 4/12/2013, § 73).

48.  Detention is specified in Article 100 and et. seq. of the Code no. 5271. According to Article 100, a person can be detained only in cases of strong indication of his guilt as well as a ground for detention. The grounds for detention are also specified in the same article. According to this, a decision on detention can be delivered (a) if the suspect or accused flees, hides or there are concrete facts which arouse the suspicion that he will flee, (b) if the behaviours of the suspect or accused constitute strong suspicion that he will 1) destroy, conceal or tamper with the evidence, 2) attempting to pressure witnesses, victims or others. In that provision, the offences in which a ground for detention will be assumed in the event that there is a strong suspicion that they have been committed are specified as a list (no. 2012/239, 2/7/2013, § 46).

49.  On the other hand, as long as the rights and freedoms stipulated in the Constitution are not violated, the issues as regards the interpretation of the legal provisions or mistakes of law or facts in the first instance decisions cannot be handled in the examination of an individual application. The interpretation of the legal provisions on detention and their implementation are also within the scope of the discretionary power of the inferior courts. However, in case of comments which are clearly contrary to law or the Constitution or a clear arbitrariness in the discretion of the evidence, such decisions which result in the violation of a right and freedom should be examined in an individual application. A contrary consideration does not accord with the aim of introducing the individual application mechanism (no. 2012/239, 2/7/2013, § 49).

50.  Within the scope of the investigation of the İstanbul Prosecutor's Office no. 2009/1868, the applicant was detained by the decision of the 14^th Chamber of the İstanbul Assize Court (File No: 2010/53 and dated 28/09/2010) with the claim that he committed the offences of knowingly and willingly aiding and abetting a terrorist organization and its members, breaching the confidentiality of the investigation file, influencing those who were fulfilling their judicial duties, causing the persons involved in anti-terrorism to become targets. 

51.  "Article 100 and et. seq. of the Code of Criminal Procedure" were shown as the justification of his detention "by considering the nature of the offences imputed to the suspect, the existing evidence against him, the presence of facts attesting to strong suspicion of his guilt, the fact that some of the charged offences were among the offences stipulated in Article 100/3-a of the Code of Criminal Procedure, the fact that the evidence was not completely collected, the possibility of destroying, concealing or tampering with the evidence by the suspect due to his position". When the indictment prepared by the Prosecutor's Office is examined, in brief, it is seen that a criminal case was filed on the ground that the applicant aided and abetted the members of the alleged "Devrimci Karargah (Revolutionary Headquarters) Organization". He gave information to the suspect N.K. who was alleged to be the member of the organization within the scope of the investigation and helped him escape from police chase, which was understood from the documents as regards the telephone calls explained in the book "Haliçte Yaşayan Simonlar, Dün Devlet Bugün Cemaat" written by the suspect and the content of the telephone calls he made with the suspect N.Ç..The actions which breached the confidentiality of the investigation were detected, fake identity cards, driving licenses and passports were seized in his residence situated in the province of Eskişehir, military documents specified as confidential were present among the other seized documents, voice recordings which were obtained as a result of illegal wiretapping in the searches conducted in his office in the Police Department of the province of Eskişehir were seized, and he hid information which qualified as personal data, that the guns whose license expired and aim of issue disappeared were seized in his residence.

52.  From the examination of the case file, it is understood that there was sufficient suspicion and grounds for the detention of the applicant. There is no issue indicating the contrary in the application file either. In this case, it has been concluded that the applicant’s allegation that he was detained and continuation of his detention was ordered although there was no concrete evidence indicating his guilt is not appropriate. The issue of whether the decisions on the continuation of detention were relevant and sufficient or not should be handled during the examination of his allegations that his requests for release were dismissed through stereotype justifications and that he was detained for a long time.

53.  Due to the reasons explained, the applicant’s allegation that "he was deprived of liberty although there were no strong suspicion of guilt and grounds for his detention" must be declared inadmissible for being "manifestly ill-founded".

d. Alleged Violation of the Presumption of Innocence

54.  The applicant alleged that his continued detention in spite of existence of no evidence indicating his guilt between the date on which he was taken into custody and the date of his application to the Constitutional Court was in breach of "the presumption of innocence".

55.  The Ministry of Justice stated that it was necessary to evaluate this allegation within the framework of Article 19 § 7 of the Constitution.

56.  The applicant reiterated his allegation in the application form and did not make a new statement regarding this issue.

57.  The essence of the applicant’s allegation is related to the fact that he was deprived of his liberty and detained on remand for a long time although there was no strong suspicion of guilt and ground for detention on him. The applicant’s allegation that he was deprived of liberty although there were no strong suspicion of guilt and ground for detention has been examined above and it has been decided that this claim is manifestly ill-founded (§§ 41-53). It is necessary to evaluate the applicant’s allegation that the presumption of innocence was violated due to the fact that he was detained on remand for a long time within the framework of Article 19 § 7 of the Constitution.

e. Alleged Unreasonableness of  the Detention Period

58.  The complaint of the applicant as to the effect that the detention exceeded the reasonable period is not manifestly ill-founded. Besides, as there is no other reason for inadmissibility, this part of the insofar as it concerns this complaint is declared admissible.

2. Merits

59.  The applicant alleged that his requests for release and the objections he filed upon the dismissal of his requests for release were dismissed through stereotype justifications without being based on any fact; and that he was detained for a long time.

60.  The Ministry of Justice stated that, according to the judgments of the ECHR, the starting point for the calculation of the period of detention was the date on which an applicant was first arrested and taken into custody; that this period ended through the release of the person or the decisions of the inferior courts; that the detention turned into a state of "detention after conviction" together with the decision of the inferior court; that the presence of suspicion of fleeing, the risk of influencing the judiciary, the risk of committing an offence again or the danger of the disruption of public order were sufficient in order for the ongoing detention to be accepted as legitimate; that while evaluating whether a period of detention that exceeded a certain period of time was reasonable or not, it was necessary to examine whether the reasonable doubt continued to be present or not, whether the court which conducted the trial showed necessary attention in terms of the speedy conclusion of the trial or not, whether the national judicial authorities discussed the issue of resorting to judicial control or not; that it was also necessary to handle the complexity of the case and the quality of the allegations, whether the alleged offence was within the scope of fight against organized offence or not in line with the particular circumstances of each application; and that the case-law of the Constitutional Court was also in this direction.

61.  Moreover, the Ministry of Justice stated that it was necessary not to detain and extend the detention of a person who was suspected of having committed an offence through a court decision which was completely devoid of justification; that however the detention of a suspect or accused by showing some justifications that legitimized the detention could not be considered as arbitrary detention; that the delivery of a detention order or decision on the continuation of detention through extremely short justifications and without showing any legal provision could not be considered within this scope; and that a similar approach was also embraced by the Constitutional Court.

62.  The applicant disagreed with the observations of the Ministry by stating that the provisions of conditional bail prescribed by the Code no. 6352 on the Amendment of Some Laws so as to Render Judicial Services Effective and the Postponement of Cases and Penalties as regards the Offences Committed through the Press were not applied on him; that he was not released although his co-accuseds were released; that the detention was intentionally sustained, that while the accused named N.K. who was claimed to be a member of the organization was released, he who was tried with the claim that he helped this person was detained on remand; that the posts of two policemen who were unlawfully wiretapping him were changed; and that an investigation was initiated against them; that he was detainede ın remand for a long time; and that his detention was unlawfully extended.

63.  Article 19 § 7 of the Constitution is as follows:

"Detained individuals have the right to request being tried within a reasonable time and being released during investigation or prosecution. Release can be linked to a guarantee in order to ensure that the relevant individual is present at the court during trial or that the sentence is executed."

64.  In Article 19 § 7 of the Constitution, it is enshrined that the individuals who are detained within the scope of a criminal investigation have the right to request the conclusion of the trial within a reasonable period and being released during investigation or prosecution.

65.  It is not possible to assess the question as to whether the period of detention is reasonable or not within the framework of a general principle. Whether the period during which an accused is detained on remand is reasonable or not should be evaluated depending on the particular circumstances of each case. The presumption of innocence that is stipulated as "No one can be deemed guilty until they are found guilty by a court order" in Article 38 of the Constitution requires that the liberty of an individual is essential, and detention is exceptional during the trial. The continuation of detention can be considered to be justified in spite of the presumption of innocence only if there is a public interest which has more precedence over the right to personal liberty and security enshrined in Article 19 of the Constitution (no. 2012/1137, 2/7/2013, § 61).

66.  It is primarily the inferior courts’ duty to ensure that detention does not exceed a certain period of time. To this end, all incidents which affect the aforementioned requirement of public interest should be examined by the inferior courts and these facts and cases should be put forth in the decisions as regards the requests for release (no. 2012/1137, 2/7/2013, § 62).

67.  The measure of detention can be resorted to in the presence of a strong indication of guilt and in order to prevent these individuals from escaping, the destruction or alteration of the evidence. Even if these grounds for detention can be initially considered 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 justifications in the decisions on the continued detention. In the event that these justifications are considered as "relevant" and "sufficient", whether the trial process has been diligently executed or not should also be examined. Factors such as the complexity of a case, whether it is related to organized offences or not or the number of the accused are taken into account for the evaluation of diligence shown in the functioning of the process. A conclusion can be reached on whether the period is reasonable or not when all these elements are evaluated together (no. 2012/1137, 2/7/2013, § 63). A conclusion can be reached on whether the period is reasonable or not when all these elements including the measures that the relevant authorities took in order to keep the period of detention at a reasonable level are evaluated together (no. 2014/85, 3/1/2014, § 43).

68.  Therefore, in the evaluation of whether Article 19 § 7 of the Constitution is violated or not, basically, the justifications of the decisions as regards the requests for release should be considered and whether the decisions are sufficiently justified or not within the framework of the documents submitted in the applications of objection to detention filed by the individuals who are kept under detention should be taken into account. On the other hand, as long as a strong indication that a person who is detained in accordance with the law has committed an offence and one or more of the grounds for detention continue to exist, it is necessary, as a principle, to accept the state of detention up to a certain period as reasonable (no. 2012/1137, 2/7/2013, §§ 63-64).

69.  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 against organized offences in particular. As a matter of fact, the ECHR emphasizes that Article 5 § 1(c)of the Convention should not be interpreted in a way that may result in rendering extremely difficult the effective fight of security officers of the States that are party to the Convention against offences, in particular those which are organized (Dinç and Çakır v. Turkey, no. 66066/09, 9/7/2013, § 46).

70.  The detention and the extension of the detention of a person through a court decision which is completely devoid of justification is inadmissible (for the judgments of the ECHR in the same vein see Nakhmanovic v. Russia, no. 55669/00, 2/3/2006, § 70; Belevitskiy v. Russia, no. 72967/01, 1/3/2007, § 91). Nevertheless, it is not possible to say that the detention of a suspect or accused by showing justifications which legitimize detention is arbitrary. However,  issuing a detention order or a decision on the continuation of detention through extremely short justifications and without showing any legal provision should not be considered within this scope (for a judgment of the ECHR in the same vein, see Mooren v. Germany [BD], no. 11364/03, 9/7/2009, § 79).

71.       The failure of an objection or appeal authority to justify its relevant decision in a detailed way in cases where it agrees with the court decision which is the subject of the objection or appeal examination and the justifications in this decision does not, as a rule, constitute contrariety to the right to a reasoned decision (for a judgment of the ECHR in the same vein see Garcia Ruiz v. Spain, no. 30544/96, 21/1/1999, § 26).

72.       The starting date of the period in the calculation of the reasonable period is the date of arrest and custody in cases where an applicant was previously arrested and taken into custody or the date of detention in cases where he has been directly detained. The end of the period is, as a rule, the date on which the person is released. However, if conviction of a person is decided in a case in which he is tried under detention, the state of detention comes to an end as of the date of conviction (no. 2012/237, 2/7/2013, §§ 66-67).

73.       On the other hand, as long as a strong indication that a person who is detained in accordance with the law has committed an offence and one or more of the grounds for detention continue to exist, it is necessary, as a principle, to accept the state of detention up to a certain period as reasonable (no. 2012/1137, 2/7/2013, §§ 63-64).

74.       The applicant primarily asserted that he was under detention for a long time. In the present case, the applicant was detained on 28/09/2010 and sentenced to an imprisonment and judicial fine through the decision of the 9^th Chamber of the İstanbul Assize Court on 19/7/2013. According to this, the applicant was deprived of his liberty depending on a basis of incrimination for approximately 2 years and 10 months.

75.       In the present case, the applicant also alleged that the justifications of the decisions on objection to detention and on the dismissal of objection were insufficient.

76.       At the first hearing of the 12^th Chamber of the İstanbul Assize Court on 13/4/2011, it was decided "that the case file be joined with the case file of the 9^th Chamber of the İstanbuıl Assize Court numbered E.2009/213; that the trial be proceeded in the case file of the 9^th Chamber of the İstanbuıl Assize Court No. E. 2009/213; and that the state of detention of the applicant continue on the ground that "the alleged act is one of the offences stipulated in Article 100/3 of the Code of Criminal Procedure as it is understood that there are cases which show the presence of strong suspicion of offence that the accused are the members of the illegal armed terrorist organization "Devrimci Karargah" (Revolutionary Headquarters)".

77.       On 19/4/2011, the applicant requested "that the decision on the continuation of the state of detention be lifted upon objection by considering his defence petition by stating that he was detained on 28/09/2010 and that he was taken before the court for the first time on 13/04/2011 after approximately 7 months; that Constitutional and statutory requests as regards defence were not fulfilled in any way during the stages of investigation and trial; that this right to liberty and security and right to a fair trial were violated" against the decision that the 12^th Chamber of the İstanbul Assize Court delivered on the continuation of the state of detention at the hearing on 13/4/2011.    

78.       The objection of the applicant was dismissed through the decision of the 13^th Chamber of the İstanbul Assize Court (Misc. no. 2011/308 and dated 12/5/2011) on the ground of "... the sanction required by the offence alleged to the suspect, the findings attesting to strong suspicion of guilt and that the alleged offence is one of the offences stipulated in Article 100/3 of the Code of Criminal Procedure".

79.       The applicant applied to the court with the request for the termination of the state of detention on the dates of 17/11/2011, 6/2/2012, 30/4/2012, 6/7/2012, 7/8/2012, 5/10/2012, 26/11/2012, 4/1/2013 at the subsequent stages of his trial. In summary, the requests of the applicant for release were dismissed with the justifications of the nature of the offences imputed to the applicant; that there were facts attesting to strong suspicions of guilt as regards the alleged offences; that the alleged offences were among the catalogue offences; that the current evidence showed the existence of strong suspicion of guilt given all evidence within the file; that the detention period was reasonable; that there was a suspicion of fleeing for the applicant if released; that the application of the measure of conditional bail which was a less severe protective measure would be insufficient as regards the subject matter of the case.  The objections filed by the applicant to the decisions of dismissal delivered by the courts were also dismissed.

80.       Lastly, the applicant applied to the 9^th Chamber of the İstanbul Assize Court on 4/2/2013 with the request for the termination of his detention and his release. The 9^th Chamber of the İstanbul Assize Court, at the 17^th trial of 4/2/2013, decided on the continuation of the applicant’s detention by repeating its previous justifications.

81.       The applicant contested this decision. His objection was dismissed through the decision of the 10^th Chamber of the İstanbul Assize Court  (Misc. No: 2013/78 and dated 7/3/2013) on the ground that "the decision delivered by the 9^th Chamber of the İstanbul Assize Court on the continuation of the state of detention on 4/2/2013 complies with the procedure and law". The decision of dismissal was notified to the applicant on 1/4/2013.

82.       The applicant’s detention was also assessed ex officio by the 9^th Chamber of the İstanbul Assize Court on the dates of 22/6/2011, 21/07/2011, 10/1/2012, 21/6/2013, 19/7/2012, 6/09/2012, 20/11/2012, 18/12/2012, 22/01/2013, 26/2/2013 in accordance with Article 108 of the Code no. 5271, and a decision was delivered on the continuation of his detention.

83.       In the evaluation of whether Article 19 § 7 of the Constitution is violated or not, basically, the justifications of the decisions as regards the requests for release should be considered and whether the decisions are sufficiently justified or not within the framework of the documents submitted in the applications of objection to detention filed by the individuals who are detained on remand should be taken into account.

84.       Although it is necessary, as a principle, to accept the state of detention up to a certain period as reasonable as long as a strong indication that a person has committed an offence and one or more of the grounds for detention continue to exist, while deciding on the continuation of detention especially after a certain period of time expires, it is an obligation to take into account the special case of the person who files a request for his release and to personalize the justifications of detention in this sense in addition to the general  circumstances of the case.For this reason, assuming that others could also act in the same way by making a generalization in the evidence of the circumstances of some accused who are tried in the same case prevents personalization while it also does not accord with the understanding as to the effect that freedom is essential and detention is exceptional.

85.       In the present case, when the justifications of the decisions delivered by the inferior courts on the objection to detention and the dismissal of objection are examined, it is seen that these justifications did not have diligence and content that would justify the unlawfulness of the continued detention and the legitimacy of detention and had the quality of being a repetition of the same matters.It cannot be said that these justifications are relevant and sufficient as regards the continuation of detention in the present case. Given the fact that the applicant was deprived of his liberty based on irrelevant and insufficient justifications, the period of detention in question cannot be evaluated as reasonable.

86.       Due to the reasons explained, it must be decided that Article 19 § 7 of the Constitution was violated in terms of the complaint of the applicant "that the period of detention is not reasonable and that the requests for release were dismissed through stereotype justifications".

3. Article 50 of the Code Numbered 6216

87.       Article 50 §§ 1 and 2 of the Code No. 6216 is as follows:

"(1) At the end of the examination on merits, it shall be decided that the right of the applicant has been violated or has not been violated.

In the event that a decision of violation is delivered, what needs to be done for the removal of the violation and its consequences shall be adjudged ...

(2) If the determined violation arises out of a court decision, the file shall be sent to the relevant court for holding the retrial in order for the violation and the consequences thereof to be removed,

In cases where there is no legal interest in holding the retrial, the compensation may be adjudged in favour of the applicant or the remedy of filing a case before the general courts may be shown.

The court which is responsible for holding the retrial shall render a decision over the file, if possible, in a way that will remove the violation and the consequences thereof that the Constitutional Court has explained in its decision of violation."

88.       In the present application, it has been concluded that Article 19 § 7 of the Constitution was violated.

89.       One copy of the decision should be sent to the incumbent court and the Court of Cassation.

90.       The trial expenses of TRY 1,698.35 in total composed of the fee of TRY 198.35 and the counsel's fee of TRY 1,500.00, which were made by the applicant and determined in accordance with the documents in the file, be paid to the applicant.

V.    JUDGMENT

In the light of the reasons explained, it is UNANIMOUSLY held on 18/6/2014 that;

A. The applicant’s

1. Allegations that "the decisions delivered as a result of the examinations of detention carried out by the Court of Instance ex officio were not notified to him and that therefore he could not find an opportunity of objecting to these decisions" be INADMISSIBLE due to "lack of jurisdiction ratione materiae",

2. Allegation that "he was deprived of liberty although there were no strong suspicion of guilt and grounds for detention" be INADMISSIBLE for being "manifestly ill-founded"

3. Allegation that "the period of detention is not reasonable and that the requests for release were dismissed through stereotype justifications" be ADMISSIBLE,

B. Article 19 § 7 of the Constitution was violated in terms of his complaint "that the period of detention is not reasonable and that the requests for release were dismissed through stereotype justifications",

C. The trial expenses of TRY 1,698.35 in total composed of the fee of TRY 198.35 and the counsel's fee of  TRY1,500.00, which were made by the applicant and determined in accordance with the documents in the file, be PAID TO THE APPLICANT,

D. One copy of the decision be sent to the incumbent court and the Court of Cassation,

E. The payments be made within four months as of the date of application by the applicant to the State Treasury following the notification of the decision; that in case of any delay in payment, the legal interest be charged for the period that elapses from the date, on which this period expires, to the date of payment.