REPUBLIC OF TURKEY

CONSTITUTIONAL COURT

 FIRST SECTION

JUDGMENT

FURKAN OMURTAG

(Application no. 2014/18179)

25 October 2017

THE FACTS

[8-40] The applicant, who was a minor at the relevant time, was detained on remand for attempted theft. The applicant’s objections against his detention were dismissed by the Magistrate Judge’s Offices.

The chief public prosecutor’s office indicted the applicant for malicious damage of property, criminal trespass to a residence, and attempted theft. 

After having lodged an individual application, the applicant was released by the competent criminal court. At the end of the trial, the court imposed a fine on him for theft of the material within the fixtures of a building, criminal trespass to a residence, and malicious damage of property.

V.   EXAMINATION AND GROUNDS

41. The Constitutional Court, at its session of 25 October 2017, examined the application and decided as follows.

A.   Alleged Violation of the Applicant’s Right to Protect His Corporeal and Spiritual Existence  

1.    Alleged Unlawfulness of the Applicant’s Arrest and Police Custody

a.    The Applicant’s Allegations and the Ministry’s Observations      

42. The applicant maintained that he had been mentally depressed for being placed, upon being detained on remand, in the same penitentiary institution with the person who had sexually abused him.

43. In its observations, the Ministry indicated that the applicant had been placed, for a week, in the same penitentiary institution with the person having sexually abused him; however, they had never been in the same place during that period; and that paying regard to the applicant’s particular situation in question, the administration of the penitentiary institution had ensured his transfer to another penitentiary institution.

44. In his counter-statements against the Ministry, the applicant maintained that his particular situation for being a minor and having experienced sad events had not been taken into consideration; and that even the idea of staying in the same penitentiary institution with the person having sexually abused him had been considerably sorrowful for him.

b.  The Court’s Assessment

45. As required by the subsidiary nature of the individual application mechanism, for an individual application to be lodged with the Constitutional Court, the ordinary legal remedies must be primarily exhausted. The applicant is to raise, primarily and in due course of time, his complaints –subject matter of the individual application– before the competent administrative and judicial authorities, to submit the relevant information and evidence to these authorities, as well as to pay due regard to pursue his case and application during this process (see İsmail Buğra İşlek, no. 2013/1177, 26 March 2013, § 17).  

46. The applicant filed any complaint regarding his above-mentioned allegation, neither in writing nor orally, with the administration of the penitentiary institution where he was kept. Nevertheless, the relevant penitentiary institutions’ administrations identified this situation and took the necessary steps to that end.  

47. It has been observed that convicts and detainees placed in penitentiary institutions may primarily file a challenge, with the execution judges, against the acts and actions of the penitentiary institution’s administration and then challenge the decisions taken by the execution judge before assize courts. However, given the fact that the applicant failed to have recourse to these remedies, it appears that he lodged an individual application without exhausting the available judicial remedies.    

48. For these reasons, this part of the application was declared inadmissible for non-exhaustion of available remedies without any further examination as to the other inadmissibility criteria.

B. Alleged Violation of the Right to Personal Liberty and Security

1. Alleged Examination of Challenge to Detention without a Hearing

a. The Applicant’s Allegations and the Ministry’s Observations

49. Stating that the challenge to his detention ordered on 1 October 2014 had been examined over the case-file and without a hearing, the applicant maintained that his right to personal liberty and security had been violated.

50. Making a reference to the previous decisions rendered by the Court and the Ministry’s previous observations submitted in this respect, the latter submitted no submissions for the present case.

b. The Court’s Assessment

51. Article 19 § 8 of the Constitution reads 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”.

52. This provision entitles a person deprived of his liberty for being arrested or detained on remand to bring his complaints concerning the procedural and substantive circumstances of the alleged unlawfulness of deprivation of his liberty. The assessment to be made by the competent judicial authority with respect to the complaints raised by the person deprived of his liberty must be of judicial nature and afford appropriate safeguards for the challenges raised by him. Besides, this provision safeguards the right to request effective review of the lawfulness of detention through hearings held in the presence of a judge as well as the right to request speedy determination by the competent authorities whether detention measure is necessary (see Firas Aslan and Hebat Aslan, no. 2012/1158, 21 November 2013, §§ 64-66).

53. Pursuant to Article 19 § 8 of the Constitution, it is not necessary to hear the applicant in review of every challenge to the courts’ decisions ordering continued detention. However, the detainee is entitled to request to be heard at reasonable intervals. During the judicial review of detention, the principles of “adversarial proceedings” and “equality of arms” must be complied with (see Firas Aslan and Hebat Aslan, § 68).

54. In view of Article 19 § 8 of the Constitution, holding a hearing in case of every challenge to detention order, including those in relation to the speedy conclusion of detention of a person deprived of his liberty, would deactivate the criminal justice system. Therefore, the obligations as to trial procedure, which are set out in Article 19 § 8 of the Constitution, do not require to hold a hearing in every challenge to be raised against detention unless there is a special circumstance that would make it necessary to hold a hearing (see Firas Aslan and Hebat Aslan, § 73).

55. In the present case, the applicant was detained on remand, by the Ceyhan Magistrate Judge through its detention order of 19 September 2014, in the presence of both the applicant and his lawyer. On 26 September 2014, the applicant’s continued detention was ordered. His challenge to the detention order was dismissed by the Ceyhan Assize Court on 1 October 2014. Therefore, it cannot be regarded as a requisite to hold a hearing for the examination of the challenge by the Ceyhan Assize Court on 1 October 2014, since a reasonable period of twelve days had elapsed since the former examination made by the Ceyhan Magistrate Judge on 19 September 2014. It is explicit that examination of the challenge -which was conducted twelve days after the decision ordering the applicant’s continued detention following his and his lawyer’s oral defence submissions- without a hearing would not fall foul of Article 19 § 8 of the Constitution.

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

2. Alleged Examination of the Challenge to Detention by Another Magistrate Judge

a. The Applicant’s Allegations and the Ministry’s Observations

57. Asserting that the challenge to his detention had been examined by a judge of the same instance with the judge ordering his detention, the applicant maintained that Article 13 of the European Convention on Human Rights (“the Convention”) had been breached. 

58. In its observations, the Ministry indicated that the examination made by the Osmaniye Magistrate Judge could not be said to be ineffective in that this tribunal was authorized to make a judicial review of the challenged decision and to decide on the merits of the challenge.  

59. In his counter-statements, the applicant did not submit any explanation as to this consideration. 

b. The Court’s Examination

60. As Article 19 § 8 of the Constitution is lex specialis in relation to Article 40 of the Constitution (Article 13 of the Convention), this complaint of the applicant must be also examined within the scope of Article 19 § 8 of the Constitution where the right to personal liberty and security is enshrined.

61. Article 19 § 8 entitles every person deprived of his liberty for any reason 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. The above-mentioned provisions enshrined in the Constitution and the Convention afford a safeguard for the examination of the request for release made, or the decisions ordering continued detention issued, during the proceedings conducted by a court upon the challenge to the lawfulness of detention (see Firas Aslan and Hebat Aslan,  § 30).

62. Challenges to the decisions rendered by the magistrate courts established by virtue of Article 48 of Law no. 6545 and dated 18 June 2014 shall be examined, in case of existence of more than one magistrate judges in the same venue, by the magistrate court with the consecutive number pursuant to Article 268 § 3 of Law no. 5271.

63. The Court previously dealt with the request for annulment of the provision of law according to which the authority to review the challenges to the decisions issued by the magistrate judges is still the same tribunals and ultimately dismissed it on the grounds that there was no constitutional norm which necessitated the examination of challenges to the magistrate judges’ decisions by a higher tribunal or any other court, that in cases where necessitated by workload of the courts bearing the name of a province or district, several “chambers” established within these courts could not be regarded as a tribunal of the same instance in terms of the proceedings conducted and examination of the appeal requests; that the magistrate courts designated as the review authority of the challenges pursuant to Article 268 § 3 of Law no. 5271 were empowered to review the challenged decision and to decide on the merits of the challenge; and that therefore, the prescribed appeal remedy was effective (see the Court’s judgment no. E. 2014/164, K. 2015/12, 14 January 2015).

64. The basic principle inherent in the appeal remedy of the criminal trial procedure is to ensure effective judicial review of the punitive decisions by a separate authority which is independent of the court rendering the initial decision. It is therefore not necessary that such an authority is a tribunal of higher jurisdiction or a superior tribunal. Magistrate judges designated, by virtue of Article 268 § 3 of Code no. 5271 which concerns the appeal remedy, as the review authority of challenges are empowered to review the challenged decision and adjudicate on the merits thereof. Therefore, the available appeal remedy appears to be effective.

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

3. Alleged Unlawfulness of Detention

a. The Applicant’s Allegations and the Ministry’s Observations

66. The applicant maintained that his detention had been unlawful and disproportionate; that he had been mentally depressed for having being sexually abused; that no regard had been paid to his special status in spite of being a minor; that the charges against him had not been of a severe nature which would necessitate his detention; that his challenges to his continued detention had remained inconclusive; that his release had not been effected although he should not have been indeed detained on remand; and that he had been wrongfully kept in detention. He accordingly alleged that his rights to personal liberty and security as well as to a fair trial had been violated.

67. In its observations, the Ministry indicated that the grounds for the applicant’s detention were relevant and sufficient; that there was no legal obstacle to his detention in view of the imputed offence; and that there existed strong suspicion of guilt on his part.

68. The applicant noted in his counter-statements against the Ministry’s observations that there was no risk of his fleeing and tampering with the evidence; and that his status as a minor as well as his special circumstance should have been taken into consideration.

b. The Court’s Assessment

i. Admissibility

69. The alleged unlawfulness of detention was not manifestly ill-founded and there were no other grounds for its inadmissibility. Accordingly, it was declared admissible.  

ii. Merits

(1) General Principles

70. In Article 19 § 1 of the Constitution, it is set out in principle that everyone has the right to personal liberty and security. In Article 19 §§ 2 and 3, certain circumstances under which individuals may be deprived of liberty are set forth, provided that the conditions of detention must be prescribed by law. Therefore, freedom of a person may be restricted only in cases where one of the circumstances specified in this article exists (see Murat Narman, no. 2012/1137, 2 July 2013, § 42).

71. Moreover, an interference with the right to liberty and security constitutes a breach of Article 19 of the Constitution unless it also complies with the conditions set out in Article 13 of the Constitution in which the criteria with respect to the restriction of fundamental rights and freedoms are specified. It is therefore necessary to determine whether the restriction complies with the requirements enshrined in Article 13 of the Constitution; i.e., the requirements of being prescribed by law, relying on one or more valid reasons specified in the relevant articles of the Constitution, and not being contrary to the principle of proportionality (see Halas Aslan, no. 2014/4994, 16 February 2017, §§ 53 and 54).

72. In Article 13 of the Constitution, it is set forth that fundamental rights and freedoms may be restricted only by law. Article 19 of the Constitution also provides for that terms and conditions under which the individual’s right to personal liberty and security may be restricted are to be prescribed by law. Therefore, detention amounting to an interference with the individual’s personal liberty must have a legal basis pursuant to Articles 13 and 19 of the Constitution (see Murat Narman, § 43; and Halas Aslan, § 55).

73. As set out in Article 19 § 3 of the Constitution, individuals under a strong suspicion of criminal guilt may be apprehended by decision of a judge solely for the purposes of preventing the risk of their fleeing, destroying or altering the evidence as well as in other circumstances prescribed by law and necessitating detention (see Halas Aslan, § 57).

74. Accordingly, detention measure can be applied only for “individuals against whom there is a strong indication of guilt”. In other words, the prerequisite for detention is the existence of a strong indication that the individual has committed an offence. Therefore, the accusation needs to be supported with convincing evidence likely to be regarded as strong. Nature of the facts likely to be regarded as convincing evidence mainly depends on the particular circumstances of every concrete case (see Mustafa Ali Balbay, no. 2012/1272, 4 December 2013, § 72).

75. Besides, it is set forth in Article 19 § 3 of the Constitution that a detention order may be issued for the purposes of preventing the risk of “fleeing” or “destroying or altering the evidence” (see Halas Aslan, § 58).

76. On the other hand, Article 13 of the Constitution provides for that any restriction with fundamental rights and freedoms cannot fall foul of the principle of “proportionality”. The phrase “necessitating detention” included in Article 19 § 3 of the Constitution also points out the requirement that detention must be proportionate (see Halas Aslan, § 72).

77. This principle is formed of three sub-principles, namely “sufficiency”, “necessity” and “proportionality”. “Sufficiency” means that the envisaged interference must be sufficient for attaining the desired aim; “necessity” means that the interference must be necessary for the desired aim, in other words, it is not possible to attain the said aim through a less severe interference; and “proportionality” means a reasonable balance must be struck between the interference and the aim sought to be attained (see the Court’s judgment no. E.2016/13 K.2016/127, 22 June 2016, § 18; and Mehmet Akdoğan and Others, no. 2013/817, 19 December 2013, § 38).

78. One of the factors to be taken into consideration is that the detention measure is to be proportionate to the gravity of the imputed offence as well as to severity of the sanction to be imposed. As a matter of fact, Article 100 of Code no. 5271 indicates that a detention order cannot be issued if the gravity of the act is not in proportion with the expected penalty or security measures to be taken (see Halas Aslan, § 72).

79. Besides, detention measure may be said to be proportionate only when the other preventive measures alternative to detention are not sufficient. Accordingly, in the event that requirements of conditional bail -having a lesser impact on fundamental rights and freedoms as compared to detention- are sufficient for the legitimate aim sought to be achieved, detention measure must not be applied, which is also pointed out by Article 101 § 1 of Code no. 5271 (see Halas Aslan, § 79).

80. In every concrete case, it falls in the first place upon the judicial authorities deciding detention cases to determine whether the prerequisites for detention, i.e., the strong indication of guilt and other grounds exist, and whether the detention is a proportionate measure. As a matter of fact, those authorities which have direct access to the parties and evidence are in a better position than the Constitutional Court in making such determinations.

81. However, it is the Constitutional Court’s duty to review whether the judicial authorities have exceeded the discretion conferred upon them. The Constitutional Court’s review must be conducted especially over the detention process and the grounds of detention order by having regard to the circumstances of the concrete case (see Erdem Gül and Can Dündar [Plenary], no. 2015/18567, 25 February 2016, § 79). As a matter of fact, it is set out in Article 101 § 2 of Code no. 5271 that in detention orders, evidence indicating strong suspicion of guilt, existence of grounds for detention and the proportionality of the detention measure will be justified with concrete facts and clearly demonstrated (see Halas Aslan, § 75).

82. As regards the detention of minors, it must be taken into consideration in the light of the relevant international conventions and instruments that detention is a measure of last resort in respect of minors, and if it is inevitable to have recourse to this measure, it must be discontinued in the shortest time possible. Nevertheless, this principle cannot be construed that the minors can in no way be detained. As also underlined in a Recommendation adopted by the Committee of Ministers of the Council of Europe addressed to the member states, detention measure may be applied in exceptional cases where minors who are of relatively older age have committed very serious offences.

(2)   Application of Principles to the Present Case

83. The applicant was detained on remand, by virtue of Article 100 of Code no. 5271, for attempted theft. In this respect, the interference with his right to personal liberty and security on account of his detention had a legal basis.

84. According to the findings of the investigation authorities, at the time of incident the applicant trespassed on the yard of a three-storey building for committing a theft and broke door-lock of a storeroom located within the yard by a waterpipe wrench, which was then secured by the evidence unit. He was then caught red-handed while attempting to run away. Therefore, it is undoubted that there is strong suspicion of guilt in the present case.

85. Also given the fact that the applicant was caught red-handed, it has been observed that the risk of fleeing on the part of the applicant, which was relied on by the magistrate judge ordering his detention, had a factual basis.

86. Besides, it must be ascertained whether the applicant’s detention was proportionate. In determining whether a detention measure is proportionate within the meaning of Articles 13 and 19 of the Constitution, all particular circumstances of the present case must be taken into consideration. In this sense, particular regard must be had to the applicant’s being a minor at the relevant time.  

87. In the present case, the detention order against the applicant did not involve an assessment revealing that his status as a minor had been taken into consideration. It cannot be therefore concluded that in ordering the applicant’s detention, the principles enshrined in the international conventions and instruments were complied with, and in finding the alternative preventive measures insufficient, due regard was paid to the applicant’s age.

88. Besides, considering the fact that minors may be detained only in exceptional cases of very serious offences, the court ordering the applicant’s detention failed to demonstrate to what extent the offence of attempted theft was serious in the specific circumstances of the present case. Furthermore, the offence imputed to the applicant cannot be considered to be serious in view of the penalty to be imposed. As a matter of fact, at the end of the trial, merely a fine was imposed on the applicant for the imputed offences. Regard being had to the relevant legal provision providing that in case of failure to pay a fine imposed on a minor, this penalty cannot be converted into imprisonment, the applicant’s detention cannot be considered proportionate as to the seriousness of the offence and severity of the sanction.

89. For these reasons, it was concluded that Article 19 § 3 of the Constitution had been violated.

C. Application of Article 50 of Code no. 6216

90. Article 50 §§ 1 of the Code no. 6216 on Establishment and Rules of Procedures of the Constitutional Court, dated 30 March 2011, reads as follows:

    “1) At the end of the examination of the merits it is decided either the right of the applicant has been violated or not. In cases where a decision of violation has been made what is required for the resolution of the violation and the consequences thereof shall be ruled…”    

91. The applicant claimed 500,000 Turkish liras (TRY) for pecuniary damage and TRY 500,000 for non-pecuniary damage.

92. In the present case, it was concluded that the right to personal liberty and security had been violated.

93. The applicant was awarded a net amount of TRY 18,000 for his non-pecuniary damage which could not be redressed by merely finding a violation.

94. In order for the Court to award pecuniary compensation, there must be a casual link between the pecuniary damage allegedly sustained by the applicant and the violation found. As the applicant did not submit any document in support thereof, his claim for pecuniary damage must be rejected.

95. The total court expense of TRY 2,006.10 including the court fee of TRY 206.10 and the counsel fee of TRY 1.800, which is calculated over the documents in the case file, must be reimbursed to the applicant.

VI. JUDGMENT

For these reasons, the Constitutional Court UNANIMOUSLY held on 25 October 2017 that

A. 1. The alleged violation of the applicant’s right to protect his corporeal and spiritual existence be DECLARED INADMISSIBLE for non-exhaustion of available remedies;

2. The alleged review of the challenge to detention without a hearing be DECLARED INADMISSIBLE for being manifestly ill-founded;

3. The alleged review of the challenge to detention by an equivalent tribunal be DECLARED INADMISSIBLE for being manifestly ill-founded;

4. The alleged unlawfulness of detention be DECLARED ADMISSIBLE;

B. The right to personal liberty and security safeguarded by Article 19 § 3 of the Constitution was VIOLATED;

C. A net amount of TRY 18,000 be PAID to the applicant as non-pecuniary compensation, and other claims for compensation be DISMISSED;

D. The total court expense of TRY 2,006.10 including the court fee of TRY 206.10 and the counsel fee of TRY 1,800 be REIMBURSED TO THE APPLICANT;

E. The payment be made within four months as from the date when the applicant applies to the Ministry of Finance following the notification of the judgment. In case of any default in payment, legal INTEREST ACCRUE for the period elapsing from the expiry of four-month time limit to the payment date;

F. A copy of the judgment be SENT to the 5^th Chamber of the Ceyhan Criminal Court (E. 2014/756, K. 2015/530);

G. A copy of the judgment be SENT to the Ministry of Justice.