REPUBLIC OF TURKEY

CONSTITUTIONAL COURT

PLENARY

JUDGMENT

YANKI BALCIOĞLU AND OTHERS

(Application no. 2014/253)

PLENARY

JUDGMENT

I. SUBJECT-MATTER OF THE APPLICATON

1.     The applicants alleged that Articles 36, 37, 38, 138, 139, 140 and 141 of the Constitution were violated by indicating that a judgment of conviction had been delivered in the case in which they were tried for the crimes of being a member of the criminal organization that had conducted activities of prostitution, blackmail, intimidation and espionage within the Naval Forces within the scope of the investigation named as the Istanbul Military Espionage Case. The applicants requested retrial and compensation.

II.   APPLICATION PROCESS

2.     As a result of the preliminary examination of the application petitions and annexes thereof conducted in terms of administrative aspects, it was found that there was no deficiency that would prevent referral thereof to the Commissions.

3.     It was decided by the Commissions that the examination of admissibility be carried out by the Sections and that the files be sent to the Section. As regards the first application numbered 2014/253 of 8/1/2014, the First Section decided in the session held on 31/10/2014 that the examination of admissibility and merits be carried out together. The Second Section decided in the session held on 17/9/2014 with regard to the application numbered 2014/1052, in the session held on 12/9/2014 with regard to the application numbered 2014/2184 and in the session held on 18/9/2014 with regard to the application numbered 2014/2188 that the examination of admissibility and merits be carried out together.

4.     The facts that are the subject of the applications numbered 2014/253, 2014/1052, 2014/2184 and 2014/2188 as well as a copy of the application were sent to the Ministry of Justice for its opinion.  In the letter of the Ministry of Justice dated 31/10/2014, it was indicated that no opinion would be submitted with regard to the application by referring to previous judgments of the Constitutional Court and the opinions it has already submitted within this framework.

5.    In the session held on 30/12/2014, as it was deemed to be necessary that the application be concluded by the General Assembly due to its nature, it was decided that the applications be referred to the General Assembly in order to be discussed as per Article 28 (3) of the Internal Regulation of the Constitutional Court.

6.    In the examination that was carried out, it was decided that the applications numbered 2014/11112, 2014/5645, 2014/3778, 2014/2981, 2014/2722, 2014/2253, 2014/1968, 2014/1956, 2014/1710, 2014/1709, 2014/1707, 2014/1697,  2014/1727, 2014/2179, 2014/2178, 2014/1760, 2014/864, 2014/566, 2014/519, 2014/454, 2014/1052, 2014/2184, 2014/2188, 2014/10897 and 2014/305 be joined with the application numbered 2014/253 as they have the same nature with regard to their subjects and that the examination be carried out on this file.

III. FACTS

A. The Circumstances of the Case

7.     As expressed in the application forms and the annexes thereof, the circumstances of the case are summarized as follows:

8.     The investigation regarding the applicants was initiated with a denunciation e-mail sent to police units on 24/4/2010. It was alleged in the e-mail in question that “A prostitution gang led by the individuals named Vika, Dilara and Gül brings women from abroad and forces them to prostitution, this gang also includes girls who are underage and the women who are forced to prostitution are abused by making them drug addicts”

9.     Upon this denunciation, an investigation was launched by the Office of the Public Prosecutor of Istanbul with the suspicion that “İ.S. and Z.M., whose connection with the criminal organization was determined via eavesdropping and interception within the framework of the investigation regarding the organization, are members of the TAF. That İ.S. frequently procures women from this prostitution gang for prostitution purposes and that he allows the use of his residence located in Kadıköy for prostitution. Z.M. had connections with another prostitution organization and that women who were forced into prostitution were examined and treated by Z.M. and those who got pregnant were made to undergo abortions”.

10.  It was alleged in denunciation calls made to the 155 police hotline on 2/8/2010 and 4/8/2010 that; “there is a prostitution gang within the TAF, they enable high level commanders, officers and students to take part in prostitution with women they procure in apartments they rent specially for this purpose”

11.  Upon these denunciations made on 2/8/2010 and 4/8/2010, searches were conducted by the Public Prosecutor's Office of Istanbul in houses and workplaces of the applicants and as a result of the searches ample digital data (such as CDs, DVDs, flash disks and hard disks) were found and seized.

12.  A criminal case was filed with regard to the applicants with the indictment of the Public Prosecutor's Office of Istanbul (Invs. No: 2010/1003 and E.2011/123 of 28/11/2011).

13.  In the indictment, it was alleged, in brief, that some of the applicants served as heads of the criminal organization whose aim consists of prostitution, blackmail and coercion based on the information obtained from the digital data. It was also alleged that the other applicants were members of this organization, that they had recorded personal data pertaining to numerous personnel of the Turkish Armed Forces in an unlawful manner and handed these over to the organization and they had obtained confidential documents pertaining to the security of the state and conveyed these into the archives of the organization. They engaged in espionage, c violated the confidentiality of private life, the confidentiality of communications and by secretly recording the voices of individuals. It was requested that the applicants be sentenced due to these offenses.

14.  It was alleged in the indictment that; “this criminal organization had organized itself within the most strategic institutions of the State such as the TAF, TÜBİTAK, HAVELSAN and GES Command and formed a separate cell structure, that all kinds of information, documents and material were sent to İ.S. who kept the organization's archive, that they specially tried to stop, slow down and prevent projects that were run for the country's benefit by TÜBİTAK for the TAF, that they were planning to market some documents and projects that they had acquired within the framework of their espionage activities to foreign countries”.

15. With the petition dated 10/11/2010, the applicants requested from the Chief Public Prosecutor's Office of Istanbul the submission of all copies of the expert examination minutes regarding digital evidence that had been sent by institutions such as TÜBİTAK and the Turkish General Staff, drafted by the law enforcement within the framework of the investigation that led to their detention.  Upon the objection lodged with the 9^th Assize Court of Istanbul on 22/11/2010 following the rejection of the Prosecutor's Office, the Public Prosecutor's Office in it's opinion requested that; “the defense counsels' requests   be rejected as they did not fall within the scope of Article 153 of the CCP since the reports that had come from the Turkish General Staff and other institutions as well as the examination minutes drafted by the national police did not amount to being expert reports. Especially given the fact that there is the likelihood of documents pertaining to the security of the State falling into the hands of individuals who lack the authority to examine these in the event that the reports coming from the relevant institutions were submitted to the defense counsels of the accused”.

16.  The Judge on Duty of the 9^th Assize Court of Istanbul rejected the request in line with this opinion with its judgment of 28/11/2010 (Misc. Action 2010/1332).  The expression contained within the grounds for the judgment is as follows:

“The requests regarding this matter be rejected given that the requested reports do not amount to being expert reports within the scope of the CCP…”

17.  Upon the objection of some applicants to this judgment, the 9^th  Assize Court of Istanbul decided as a bench on the rejection of the request in final fashion with its judgment of 27/12/2010 (Misc. Works. 2010/1378). The expressions contained in the reasoning of the judgment are as follows:

“The defense counsels objections be rejected by taking into consideration the fact that they do not fall within the scope of Article 153 of the CCP, as there is no contrariety with the procedure or the code in the decision delivered by the Office of the Judge on Duty of the Court ...”

18.  The applicants requested this time during prosecution, all the copies of the expert examination minutes sent by TÜBİTAK, the Turkish General Staff and other institutions and drafted by law enforcement be given to them, an expert examination be conducted on the CDs, flash drives, DVDs and hard drives and their images be submitted. It was decided during the 1st hearing of the 11^th Assize Court of Istanbul of 20/4/2011 with regard to this request of the applicants that “...it was indicated in the indictment pertaining to the digital materials and other documents that are located in judicial safe custody that these documents were within the framework of state secret and similarly, it was also indicated in the response letter sent by the Turkish General Staff during the investigation phase pertaining to military documents that these documents were classified documents with the quality of being state secrets, that however, bearing in mind that these documents number in the tens of thousands, the matter regarding whether or not the digital data seized from the accused and located in the judicial safe custody and all the other documents should be handed over to the accused and their defense counsels be ruled upon after having conducted an assessment as to whether these amount to state secrets as confidential documents that should not be made public, that all requests to this end be REJECTED at this stage ”.

19.  The request of the applicants pertaining to the submission of the images of the digital data was rejected during the 5th hearing of the 11^th Assize Court of Istanbul of 1/7/2011 with the justification that, “an expert examination will be commissioned with regard to the digital data seized from the accused”.

20.  The request of the applicants regarding the matter of the submission of the digital materials was also rejected during the 9.hearing of the 11^th Assize Court of Istanbul of 16/12/2011 with a similar justification.

21. During the hearing of 16/12/2011, some of the applicants requested that M.T. be heard in his capacity as the expert individual with regard to the digital data, which formed the basis for the accusations, and upon the acceptance of this request by the Court, M.T. stated in his opinion delivered in his capacity as the expert individual that; “...metadata (information such as the file name, by whom it was created, when it was created and the date of the last modification)is not a reliable type of information as it does not contain any security information per se. ...These data can be changed by anyone who uses the computer...” (reasoned judgment p.308 and onwards).

22.  With regard to the applicants' request that the assigned police officers who had prepared the examination reports with regard to the digital data be heard before the court and their other requests, it was held by the 11^th  Assize Court in the 14th hearing dated 29/6/2012 that;

“…Given that some of the requests were previously rejected in line with the interim judgments that have already been delivered and that no new assessment is required at this stage,

And that in terms of some other requests, the examination of digital documents for evidentiary purposes is within the court's discretion, that the matter regarding the hearing of a witness would not make a substantial contribution to the essence in terms of digital documents,

And that it has been understood that the fulfillment of some other requests would not bring anything new to the file,

That they be REJECTED also taking into account the various other reasons outlined in previous interim judgments,”

….

“... as it has been concluded that in terms of the legislation that is in force, considerations such as being accepted as a secret, classified, top secret and restricted belong to the concerned institutions that are the owners of the document as it is also understood from the content of the legislation submitted in the annex of the response letter of the Legal Service of the Turkish General Staff of 28 May 2012, which was provided upon the letter of our court, that no other institution that would conduct the classification assessment of the document in question existed, that if the requests of the defense counsels of the accused were to be accepted and an expert delegation formed, in the event that this expert delegation consists of independent individuals, a security gap could appear given the nature of the documents, that in the event that the other option is chosen and that an expert delegation is constituted by means of incorporating one representative from each of the institutions that are the owners of the documents, it would not amount to adopting a separate practice than the one currently in use, that therefore, the decision needs to be delivered by taking into account the assessment reports that are already present in the file, that the requests to this end be REJECTED,”

23. The request of the applicants that an expert examination be commissioned as per its due procedure on the digital records, which caused the applicants to be accused and sentenced, was rejected by the Court of First Instance with the justification that;

“When it is taken into consideration that the digital evidence was seized as a result of searches that were conducted as per its due procedure at the homes or workplaces of the accused and were also supported with video footage, since there is no finding supporting the allegations to the point that subsequent additions were made to the evidence or that they had been previously planted at the scene of the incident, it has been concluded that these theories are ill-founded.  In a criminal trial, the judge (the court) wields free discretion with regard to the evidence that is brought to his/her/its attention.  In terms of the Code of Criminal Procedure, an expert is not considered as conclusive evidence either.  For this reason, the outcome achieved by police officers, who are members of the National Police that is considered as Judicial Law Enforcement in the sense of Article 161 of CCP, after having conducted analyses and reporting on the digital evidence that had been seized by making use of the software referred to in the theoretical explanation with regard to the digital evidence above through the Informatics Unit during the investigation phase was taken into consideration by our court in conjunction with the entirety of the evidence within the scope of the file and the chain of digital evidence was also taken into consideration. It was considered to be sufficient by taking into regard the assessment of the 10th Assize Court of İzmir with regard to the digital evidence obtained from the accused, who are members of the organization, in connection with the conviction, which was the subject of the judgment of approval of the 9^th Criminal Chamber of the Court of Cassation with the merits number of 2012/1750 dated 20/06/2012, therefore, even though M.T., who was made to be present and requested to be heard as an expert by the counsel of some of the accused during the hearing on 16/12/2011, stated in general in his statement during the hearing that the metadata and sub data paths of word documents created on computers could easily be intervened to, that the means to preventing this from happening was to monitor the premises where the computers are present via suitable control tools, this was not considered to have an impact on the judgment given the fact that it did not introduce a new element other than the acknowledgment of the general criminal law provision to the effect that our court has free discretion of the above mentioned evidence, and resorting to a new expert examination was not considered to be necessary again for the same reasons” (see reasoned judgment p.396). 

24.  With the judgment of the 11^th  Assize Court of Istanbul of 2/8/2012 numbered E.2012/37, K.2012/166, it was decided that the applicants be sentenced for crimes such as membership to an organization, unlawfully providing or obtaining personal data, procuring confidential documents pertaining to the security of the State, that they be acquitted of the crimes of “establishing and managing an organization”, “conducting political or military espionage” and “inciting to or serving as auxiliary to prostitution”.

25.  The court demonstrated “documents determined to fall within the scope of Articles 334/1, 327/1, 326/1 of the TCC in such a way as to highlight their connection with the organization based on the parts of the digital documents seized within the framework of the file understood to have been drafted by themselves” as the justification to the point that the applicants had committed the crime of “Being a member to an organization established for the purpose of committing crime” regulated under Article 220 of the TCC (reasoned judgment p. 412-421). The Court demonstrated the information and documents contained within the CDs, flash disks, DVDs and hard disks that had been seized on the accused İ.S. and the houses of the accused as the justification to the point that the applicants had also committed the crimes of “unlawfully providing or obtaining personal data” regulated under Article 136 of the TCC, “violating the confidentiality of private life” regulated under Article 134 of the TCC, “procuring prohibited information” regulated under Article 334 of the TCC,  “procuring confidential documents pertaining to the security of the State” regulated under Article 327 of the TCC (reasoned judgment p. 427 and onwards).

26. In the appeal petition, the applicants reiterated the matters they had brought forward at the Court of First Instance; the 9^th Criminal Chamber of the Court of Cassation dismissed the appeal objections pertaining to the Court of First Instance's rejection of the request to commission an expert examination on the grounds that, “as it is also pointed out in the judgment of the Military Court of Cassation (File No: 2007/1-1 of 10.01.2007 ) , taking into consideration the fact that the opinions that were provided by the individuals assigned by these institutions, which determine the nature of the information in connection with Article 326 and onwards of the TCC in terms of the information that was seized from the accused belonging to the Turkish Armed Forces and the Scientific and Technological Research Council were prepared in line with the conditions pertaining to documents, information and confidentiality mentioned in the referred articles as well as the criteria pertaining to the distinction between these and the scope of the file and when the number, content and the purpose of obtaining as determined based on the scope of the file of the information seized from the accused are taken into consideration; as it is understood that no special or technical information is required in order to determine their qualities, that indeed the same conclusion was also reached by the 1st Chamber of the Military Court of Cassation in an examination into the same crime type with its judgment of 18.06.2008 numbered 2008/1890-1886, the appeal objections pertaining to the point that the determination with regard to the nature of some of the information that is the subject of the case needs to be commissioned to experts have not been deemed to be appropriate”, it upheld the judgment of conviction that had been delivered with regard to the applicants with its judgment (File No:E.2013/8851, K.2013/14876 of  5/12/2013 ).

B. Relevant Law

27.       Article 220 (1) of the Code of 26/9/2004 No.5237 with the side heading ''Forming an organized group with intent to commit crime'' is as follows:

“(1) Those who form or manage an organized group with the purpose of committing acts deemed as crimes by the law shall, in the event that the organization is favorable to the commission of the intended crimes on the basis of the organization’s structure, its number of members and tools and equipment, be penalized with a prison sentence of two to six years. However, for presence of an organized group the number of its members should be at least three persons.”

28.  Article 135 (1), (2) of the Code No.5237 with the side heading ''Recording of personal data'' is as follows:

“(1) A prison sentence of six months to three years shall be imposed on a person who unlawfully records personal data.

(2) A person who records the information related to an individual’s political, philosophical or religious views, racial origins, and who unlawfully records information related to their moral dispositions, sexual lives, health conditions or connections to trade unions as personal data shall be penalized as per the provisions of the above clause.”

29.  Article 136 of the Code No.5237 with the side heading “Unlawful delivery or acquisition of data”is as follows:

“(1) A person who unlawfully gives personal data to another, publishes or acquires it shall be penalized with a prison sentence of one to four years.

30.  Article 327 (1) of the Code No. 5237 with the side heading of ''Acquiring documents pertaining to the security of the State" 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 domestic or external political benefits thereof which, due to its quality, needs to remain confidential.”

31.  Article 334 (1) of the Code numbered 5237 with the side heading of ''Acquiring prohibited information" is as follows:

"(1) A prison sentence of one to three years shall be imposed on the person who acquires the information the disclosure of which have been prohibited by competent authorities as per law and regulations and which, due to their nature, need to remain confidential.”

IV. EXAMINATION AND GROUNDS

32.  The application (File No: 2014/253) was examined during the session of the court held on 9/1/2015 and the following were ordered and adjudged:

A. The Applicants' Allegations

33.  The applicants indicated that,

                         i.        During the investigation and the prosecution they were kept in detention in an unjust and unlawful manner,

                       ii.       No expert examination was conducted into the soundness of the digital evidence and that their requests pertaining to this were dismissed, that the judgment was delivered based on the technical reports prepared by law enforcement, that the copies of the digital evidence were requested, that, however; these were not submitted,

                    iii.        Their requests to have witnesses heard were dismissed, that the statements of the witnesses who were heard were not relied upon,

                     iv.       The phase of the presentation and discussion of the evidence was not duly conducted,

                       v.        A judgment of conviction was delivered with regard to them even though the legal elements of the crime that was attributed to them did not materialize,

                     vi.       They were convicted based on unrealistic evidence, which was obtained in contrary to the law,

                   vii.       The Court of First Instance did not have venue or competence, that the natural judge guarantee was violated,

                 viii.       They were convicted by relying on collective justifications without the presence of sufficient concrete evidence regarding themselves, that their relationship of causality with the digital data could not be proven, 

                     ix.       The judgment of the Court of Instance and the decision of approval delivered by the Court of Cassation as a result of the appeal examination were not valid, sufficient and legal,

                       x.        The fact that the judgment of acquittal that was delivered with regard to some of the accused who were in the same situation as themselves was approved by the Court of Cassation demonstrated that the judgment of the local Court was approved without examining the evidence,

                     xi.       News articles were published and various allegations were made during the investigation and prosecution phase in order to humiliate the applicants, tarnish their honor and reputation, that however; no effective remedy existed with regard to preventing these,

                   xii.       No decision of adjournment or postponement of the pronouncement of the judgment was delivered with regard to themselves even though the required circumstances were present, that no justification that is objective, authentic and in line with the file was demonstrated, 

                 xiii.       Their request pertaining to the examination of the evidence that is the subject of the accusation during the investigation phase was blocked under the pretext of the decision of confidentiality,

and alleged that the principle of equality enshrined in Article 10 of the Constitution, the right to individual freedom and security enshrined in article 19 of the Constitution, private life enshrined in article 20 of the Constitution, the right to a fair trial enshrined in Article 36 of the Constitution and the presumption of innocence enshrined in Article 38 of the Constitution were violated.

B. The Constitutional Court’s Assessment

1. Admissibility

a.    Complaints About Detention

                        i.           Complaints With Regard to Detention During the Investigation and Prosecution Phase

34.  The applicants Ali Haydar ESER, Tamer KARSLIOĞLU, Hatice Senay GÜNAYDIN, Tamer ÇETİN, Mehmet Koray ERYAŞA and Mehmet Emrah KÜÇÜKAKÇA alleged that they were kept in detention during the investigation and the prosecution, that their requests for judicial control were dismissed with cliché justifications and that Article 19 of the Constitution was violated for this reason.

35.  Provisional Article 1 (8) of the Code on the Establishment and Trial Procedures of the Constitutional Court of 30/3/2011 no 6216 is as follows:

       “The court shall examine the individual applications to be lodged against the last actions and judgments that were finalized after 23/9/2012.”

36.  In accordance with this provision, the Constitutional Court shall examine the individual applications to be lodged against the last actions and judgments that were finalized after 23/9/2012. Therefore, the authority of the court in terms of ratione temporis shall only be limited to the individual applications that are lodged against the last actions and judgments that were finalized after this date. In view of this regulation pertaining to the public order, it is not possible to extend the coverage of the authority in a way that will also cover the last actions and judgments that were finalized before the aforementioned date (App. No: 2012/832, § 14, 12/2/2013).

37.  In the individual applications that are lodged with the claim that the ongoing detention is contrary to the law, the main aim of the complaints is to determine that the detention is contrary to the law or that there is no reason or reasons that justify the continuation thereof. In the event that this determination is made, accordingly, the presence of the legal grounds shown as the justification for the continuation of the state of detention will come to an end and thus, it will pave the way for the person to be released.  In an application lodged for this purpose, it will be taken into account whether an examination has been conducted over the objection remedy in accordance with the principles such as the adversarial trial and/or the equality of arms. Therefore, it is possible to lodge the individual applications to be lodged due to the aforementioned reasons and for the issuance of a judgment that will ensure the release as long as the state of detention continues on the condition that the ordinary legal remedies are exhausted (App. No: 2012/726, 2/7/2013, § 30).

38.  However, in order for the application to be considered as admissible, it is also necessary that the last actions or judgments that form the basis for the claim of violation be finalized before 23/9/2012. It is possible to make this determination as regards the jurisdiction of the court at every phase of the examination of the individual application.

39.  In the case at hand, the detention of the applicants came to an end on 2/8/2012, on which the judgment of conviction of some of the applicants was announced. According to this, it is obvious that the complaints as regards the detention as a whole are related to the judgments that were finalized within the period before a verdict was issued about the applicants.

40.  Therefore, as it is understood that the judgments and actions that are subject to the complaints of the applicants as regards the detention were finalized before the date of 23/9/2012 on which the authority of the Constitutional Court commenced, it should be decided that this part of the applications is inadmissible due to "the rejection of authority in terms of ratione temporis".

ii. Complaints With Regard to the Judgment of Apprehension Based on the Conviction Judgment

41.  The applicants Hatice Senay GÜNAYDIN, Tamer ÇETİN, Mehmet Koray ERYAŞA and Burak ÇETİN alleged that Article 19 of the Constitution was violated as a result of the judgment of apprehension that was issued with the approval of the judgment of conviction.

42.  Article 48 (2) of the Code numbered 6216 with the side heading of ''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."

43.  Paragraph one of Article 19 of the Constitution contains the rule that everyone has the right to individual liberty and security whereas paragraphs two and three contain the rule that individuals can be deprived of this right under certain exceptional circumstances the form and conditions of which are demonstrated in the code (App. No: 2012/338, 2/7/2013, § 38). According to this, deprivation of liberty can only be the case in the event that one of the cases which are specified within the scope of the mentioned article of the Constitution exists. (App. No: 2012/348, 4/12/2013, § 39). Depriving individuals of their liberty for the purpose of “Fulfilling liberty depriving punishments delivered by Courts”is one of the situations listed in paragraph two of the Article. 

44.  In the case at hand, it was decided that the applicants be sentenced to imprisonment with the judgment of the 11^th Assize Court of Istanbul that was announced on 2/8/2012 and the liberty restricting punishment that was delivered with regard to them was approved by the 9^th Criminal Chamber of the Court of Cassation on 5/12/2013.  The cases of deprivation of liberty following judgments of conviction delivered by the Court are within the framework of “fulfilling liberty depriving punishments delivered by Courts” in Article 19 (2) of the Constitution. 

45.  Due to the explained reasons, it should be decided that the application is inadmissible due to the fact that these allegations brought forward by the applicants are “manifestly ill-founded”.

b.         Allegations That The Right To A Fair Trial Was Violated

46.  Article 47 (5) of the Code numbered 6216 with the side heading ''Procedure of individual application" is as follows:

“(5) The individual application should be made within thirty days starting from the exhaustion of legal remedies; from the date when the violation is known if no remedies are envisaged.”

47.  Article 64 (1) of the Internal Regulation of the Constitutional Court with the side heading of “The application period and excuse” is as follows:

“(1) The individual application must be made within thirty days starting from the exhaustion of legal remedies and the finalization of the judgment pertaining to this, from the date when the violation is known if no remedies are envisaged.”

48.   The application period is one of the preconditions of the individual application.  The period is a procedural provision that needs to be taken into consideration at any stage of the application.

49.   Article 47 (5) of the Code numbered 6216 and Article 64 (1) of the Internal Regulation, individual applications need to be lodged directly to the Constitutional Court or via other courts or representations abroad within thirty days starting from the date when legal remedies are exhausted and the judgments pertaining to this are finalized, or the date when the violation is learned if no remedy is set forth.

50.   In a criminal trial, the final remedy that needs to be exhausted is the appeal phase, the objection remedy with regard to judgments that go through appeal examination is granted to the Chief Public Prosecutor of the Court of Cassation as per Article 308 of the Code numbered 5271.  Therefore, the applicant's request to the effect that the objection remedy be seized is a request that is solely aimed at mobilizing the discretion of the Chief Public Prosecutor of the Court of Cassation.  Since applications lodged within this scope are not considered as a remedy that needs to be exhausted prior to the individual application, this remedy being seized will not have an impact on the individual application period (App. No: 2013/2001, § 18, 16/5/2013).

51.  In the case at hand, the remedies were exhausted with the 9^th Chamber of the Court of Cassation approving the judgment of the 11^th Assize Court of Istanbul on 5/12/2013.  Even though the date of notification of this judgment to the applicants is not understood from the contents of the file, it needs to be acknowledged that the applicant Metin ÖLMEZ learned about it on 23/12/2013, when he lodged an application for the objection remedy to the Office of the Chief Public Prosecutor of the Court of Cassation, the applicant Hakan ÖZERGÜN on 23/12/2013, the applicant Ekrem Saltuk BAYSAL on 7/1/2014, the applicant Deniz Mehmet IRAK on 7/1/2014, the applicant Ahmet Yasin ERDOĞAN on 20/12/2013 and that the applicant Zeki MESTEN at the latest on 7/2/2013, when he made a request to the Ministry of Justice to the effect that the trial be renewed.  In this case, the individual application needs to be lodged to the Constitutional Court against the judgment in question within thirty days starting from the date of acknowledgment.

52.  Due to the fact that the applicant Metin ÖLMEZ lodged an individual application on 24/2/2014, the applicant Hakan ÖZERGÜN on 14/2/2014, the applicant Ekrem Saltuk BAYSAL on 11/2/2014, the applicant Deniz Mehmet IRAK on 10/2/2014, the applicant Ahmet Yasin ERDOĞAN on 4/7/2014 and the applicant Zeki MESTEN on 9/7/2014, it has been concluded that these applications were made out of time. 

53.      For the explained reasons, it must be decided that the individual applications that were not filed within the thirty days starting from the date on which the remedies were exhausted with regard to the above mentioned applicants are inadmissible due to “being made out of time” without being examined in terms of other admissibility conditions.

54.  With regard to the other applicants, it should be decided that their applications, which are not manifestly ill-founded and where no other reason that will require a decision of inadmissibility is found, pertaining to the exercise of the right to a fair trial is admissible.

2.    Merits

a.   The Allegation That The Principle of the Equality of Arms Was Violated

55.  The complaints of the applicants under this heading are summarized as follows:

                                           i.    It was alleged that the fact that merely the technical determinations made by law enforcement with regard to the digital records that had been taken as the basis for the case and the merits for the judgment were deemed to be sufficient and that the request to the effect that these examination minutes be submitted to themselves was dismissed by the Office of the Chief Public Prosecutor of Istanbul, that their objection filed against the decision of dismissal of the Office of the Prosecutor was also dismissed, that their request to the effect that the images of the digital data alleged to belong to themselves be submitted was not accepted, that no expert examination was conducted as regards the soundness of the digital data amounted to restriction of the right to defense,

                                         ii.    That their request to the effect that a comprehensive expert examination be commissioned with regard to the entirety of digital materials that had been brought forward as evidence was dismissed on grounds of state secret was in violation of the principle of the equality of arms,

                                      iii.    That the unsigned digital data contained within the CDs, Flash Disks and Hard Disks that had been seized were accepted as lawfully obtained evidence regarding the individuals or the accused whose names were written in the data whereas it was accepted and stated in the reasoned judgment that the court acknowledged that the user file paths, creation dates and last saved dates of digital data can be easily changed or manipulated or edited to be saved on a former date later on amounted to violation of the right to a fair trial,

                                       iv.    That there was no justification with regard to why the opinion of the Turkish Naval Forces Command of 6/4/2011 numbered LEGDEP.:2011/2016 (50984) pertaining to the digital records that were taken as the basis for the judgment was not respected by the Court.

56.  Article 36 (1) with the side heading "Freedom to claim rights" of the Constitution is as follows:

"Everyone has the right of litigation either as plaintiff or defendant and the right to a fair trial before the courts through legitimate means and procedures."

57.  Article 6 (1) of the European Convention on Human Rights (ECHR) with the side heading "Right to a fair trial" is as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law...”

58.  In order to protect the rights in the Constitution in an effective way, the Courts that try the case must be "tasked with examining the bases, claims and evidence of the parties in an effective way" according to Article 36 of the Constitution (for a judgment of the ECtHR in the same vein, see Dulaurans v. France, App. No: 34553/97, 21/3/2000, § 33).  No: 34553/97, 21/3/2000, § 33). According to the case law of the European Court of Human Rights (ECtHR), if the approach of a court towards the case results in the fact that they avoid responding to the claims of the applicants and examining the main complaints of the applicants, Article 6 of the Contract is violated in terms of the due examination of the case (see Kuznetsov v. Russia, App. No: 184/02, 11/4/2007, §§ 84-85).

59.  That the documents contained within the digital evidence in question were found to be in connection with the security of the state and that a security vulnerability would ensue in the event that an expert examination was conducted on these documents was provided by the Court of First Instance as the justification for the lack of expert examination on the digital evidence as requested by the applicants or the refusal to submit the images belonging to this evidence (see §§ 18-22). In its judgment highlighting that an expert report does not constitute definitive evidence, the Court also provided the explanations that “In a criminal trial, the judge (the court) wields free discretion with regard to the evidence that is brought to his/her/its attention. In terms of the Code of Criminal Procedure, an expert is not considered as definitive evidence either. For this reason, the outcome achieved by police officers, who are members of the National Police that is considered as Judicial Law Enforcement in the sense of Article 161 of CCP, after having conducted analyses and reporting on the digital evidence that had been seized by making use of the software referred to in the theoretical explanation with regard to the digital evidence above through the Informatics Unit during the investigation phase was...  considered to be sufficient, therefore... resorting to a new expert examination was not considered to be necessary again for the same reasons” (reasoned judgment p.396).

60.  As indicated above, the Court of First Instance dismissed the request of the applicants to the effect that an expert examination be commissioned or that images be provided.  As set forth in the ECtHR case law, the principle of "equality of arms", one of the main elements of the right to a fair trial, requires equal treatment of the witnesses or experts of the prosecution and the witnesses and experts of the accused (see Bönisch v. Austria, App. No:  8658/79, 6/5/1985, §§ 32-33).

61.  The principle of equality of arms applied in both criminal cases and non-criminal cases requires the parties to be given a reasonable opportunity to present their requests and statements under conditions that do not place them at a disadvantage vis-à-vis their opponents (Kress v. France, App. No:  39594/98, 7/6/2001, § 72). As a result of this requirement, although there is no special provision in the ECHR as regards the hearing of the experts before the court, the ECtHR evaluated the entity of expert by relating it to the "principle of equality of arms" considering the right of having witness heard as stipulated in Article 6 (3) (d) of the Convention (see Bönisch v. Austria, App. No: 8658/79, 6/5/1985, § 32; Brandstetter v. Austria, App. No: 11170/84, 12876/87, 13468/87, 28/8/1991, § 42).

62.  The main purpose of a criminal trial is to unearth the material truth in compliance with the procedure that is envisaged by the fundamental rights and freedoms as well as the law.  In compliance with this purpose, the evidence that is brought before the trial instance and the indictment that relies on it need to be discussed as per the principle of adversarial trial.

63.  The principle of the equality of arms, which is a fundamental element of a fair trial in criminal cases, refers to the prosecution and the accused having equal opportunities.  As the prosecution has the full backing of the entire state mechanism in criminal cases, the equality of arms serves as a fundamental guarantee of the right to defense of the accused.  As per the principle, the defense and the prosecution must have the same opportunities in terms of preparing and presenting their case under equal circumstances.  The principle of the equality of arms requires as a minimum in a criminal trial that the material information demonstrated and acquired by the prosecution be explained, that no difference be observed between the prosecution and the defense in terms of examining the case file.

64.  Within the scope of the principle of the equality of arms, a complete equality in terms of rights and responsibilities that are possessed needs to be established between the parties of the case during the trial that takes place before the court and this equality needs to be maintained all along the trial.  All kinds of procedural actions that are fulfilled during the trial process as well as matters such as submitting evidence and counter evidence, bringing forward claims and counter claims need to be conducted in compliance with the principle of the equality of arms.  The principle of the equality of arms also encompasses a legal situation to the detriment of the accused not being created in the criminal trial.

65.  It is a requirement of the principle of the equality of arms that the documents presented to the case file be examined and that copies be taken from these documents, that the expert reports utilized by the court as the grounds for its judgment be accessed and that the opportunity of acquiring these be granted, that, similarly, the opposing party be granted the right to object, explain an opinion and refute evidence, as well as bring forward counter evidence against the evidence and documents brought forward by the other party to the trial.

66.  What is of essence in the inspection of the equality of arms is the importance of the action that is the subject of the equality inspection in the trial.  When the ECtHR inspects whether or not the principle of the equality of arms has been abided by, it considers whether or not the inequality that is the subject of the complaint in the case at hand renders the trial actually and genuinely unjust (see Kremzov v. Austria App. No: 12350/86, 21/9/1993, § 75). If, in the face of an allegation of one of the parties to the case, the other party is not granted the opportunity to present the evidence that is the main pillar of its defense against this allegation, a violation could occur in terms of the equality of arms (see De Haes and Gijsels Belgium App. No: 19983/92, 24/2/1997, § 58). 

67.  In the incident that is the subject of the application, the Court of First Instance did not respect the opinion of the expert who was made to be present by the applicants and was heard, however; it delivered its judgment by means of respecting all of the examination reports commissioned to members of law enforcement by the Office of the Chief Public Prosecutor during the investigation (reasoned judgment, p.400 and onwards). The applicants requested from the Court that an expert report be obtained with regard to the digital evidence, which constituted the foundation for the trial and resulted in them being sentenced, by alleging that the investigations and examinations pertaining to the digital evidence during the investigation phase were deficient and not adequate to elucidate the incident, that the requests and statements brought forward by themselves were never respected. The Court of First Instance dismissed this request with the justification that “given that the CCP does not explicitly accept expert opinion as evidence, despite the opinion of the expert, determining whether or not the information amounts to state secret is a matter that can be potentially solved with the general and judicial information of the profession of being a judge, albeit after having learned about the content of these via the opinion of an expert. However, the final judgment as to whether the information, document or item amounts to a state secret or not is to be delivered by the judge or the court, as per the essence of the arrangement under the article derived from its expression, according to the definition of a state secret. ” (reasoned judgment, p.405).

68.  The duty of the Constitutional Court is not to decide whether an expert report is necessary in a given case. The issues of the necessity of the request of the defense for having witnesses heard or admissibility or evaluation of evidence such as an expert report shall fall within the authority of the courts of instance (for a judgment of the ECtHR in the same vein S.N. v. Sweden, App. No: 34209/96, 2/7/2002, § 44).

69.  However, the Constitutional Court has the authority to examine whether the decision of dismissal of the request within the framework of the defense that the images of the digital evidence that is the subject of the accusation be provided or that an expert report be obtained with a view to these documents was delivered within a procedure that contains sufficient guarantees aimed at protecting the rights of the accused.

70.  The applicants requested that the Court commission an expert report pertaining to the soundness of the digital evidence that constituted the grounds for the trial by alleging that the examinations commissioned by the Public Prosecutor to members of law enforcement were deficient and not adequate to elucidate the incident, that the expert report that was made to be heard by themselves during the hearing was not respected either.  The Court of First Instance held that it was not necessary to commission an expert report with the justification that, “When it is taken into consideration that the digital evidence was seized as a result of searches that were conducted as per its due procedure at the homes or workplaces of the accused and were also supported with video footage, since there is no finding supporting the allegations to the point that subsequent additions were made to the evidence or that they had been previously planted at the scene of the incident, it has been concluded that these theories are ill-founded.” (reasoned judgment, p. 396).

71.  It cannot be claimed that the fact that the actions attributed to the accused rely on documents created with computer programs (such as CDs, DVDs, flash memories, external disks etc.), that it was accepted by the Court that the contents of these documents reflected material incidents and facts and that they were authentic, that it was indicated in the statement of the expert who was heard during the hearing dated 16/12/2011 that these data had the quality of being open to intervention, (reasoned judgment, p. 396), that resorting to an expert and reports to be issued by a board are insignificant in arriving at the material reality.

72.  It is clear that the technical examination to be conducted on the digital evidence can be determinant in terms of proving the crimes and establishing the relation of the accused to these crimes.  Faced with the allegation of the applicant that the documents contained within the digital evidence had not been created and procured by himself, it is necessary that an access that would allow an effective defense to be made pertaining to these allegations be provided or that an examination fitting this purpose be conducted by the trial instance.

73.  Article 6 of the Convention requires the prosecution to explain all material evidence in addition to the principles of adversarial trial and the equality of arms.  However, the right to access to evidence that is the subject of the accusation is not an absolute right.  The right the defense can be restricted with measures such as national security, the protection of witnesses etc. and only to the extent this is compulsory.  For these reason, it may be necessary that some evidence be kept confidential from the defense.  However, this remedy, which restricts the right to defense, can only be resorted to in the event that this is absolutely necessary.  In the presence of this kind of a situation, the difficulties stemming from this restriction must absolutely be balanced out by judicial instances via other procedures.  These procedures must be in compliance with the requirements of the principle of the equality of arms and also contain the necessary guarantees.  (Jasper v. United Kingdom BD, App.No:27052/95, 16 February 2000, § 52). In circumstances where these means cannot be assured and the evidence that is kept confidential constitute determining proof, the principle of the equality of arms may be violated.

74.  The failure to grant the opportunity of access and examination in such a manner as to result in the defense pertaining to the evidence constituting the basis for the accusations becoming ineffective causes the main function of the criminal trial not to be fulfilled.   The failure to have the evidence that constitute the basis for the accusations examined through measures that are appropriate in terms of proving the crime and by expert individuals may result in the defense becoming useless and unnecessary.

75.  As a rule, while the reports and opinions presented by the expert are not binding for the courts of instance, the examinations commissioned by the Public Prosecutor had a decisive effect when the evaluation on the merits was carried out by the Court of First Instance. In other words, in the present case the Court of First Instance only took into account the analyses and examinations commissioned by the Public Prosecutor on the digital evidence and the general charts submitted by the institutions. It dismissed the requests of the applicants against these reports that the court appoint a board of experts and commission a report in order to evaluate the allegations that the digital data constituting the grounds for the judgment of conviction did not reflect the reality and their request that the images of these documents be submitted.  In the present case, the applicants were sentenced by relying on the information and documents contained within the digital evidence.  The fact that the request of the applicants that an expert examination be commissioned on these evidence in order to investigate their allegations that the digital data did not reflect the reality or that their images be submitted was dismissed with a reference to the point that the contents of the digital documents qualified as state secret and that the digital evidence had been seized as a result of searches that had been conducted as per the due procedure has the effect of violating the right to a fair trial with a view to the entirety of the trial.

76.  The fact that the evidence was thus kept confidential by the Court, especially that the evidence was not made available to and examined by the defense due to the pretext of state secret made it impossible for the applicants to fully bring forward their allegations as to the soundness of the digital evidence.  However, the Court delivered its judgment of conviction by making an assessment based on this digital evidence and the judgment was upheld by the Court of Cassation for the same reasons (see §§ 25-26). It is clear that the procedure and method pursued by the Court under these kinds of circumstances are not in compliance with the principle of the equality of arms and do not contain a guaranty that sufficiently protects the applicant's interests.

77.  In this manner, the opportunity of the applicants to make a defense against the evidence, which formed the basis of the accusations leveled at them, and their right to claim the extension of the prosecution were restricted, the principle of the "equality of arms" of the criminal trial aimed at ascertaining the material fact was violated.

78.  In light of the above explanations, it should be decided that the applicants' right to a fair trial guaranteed in Article 36 of the Constitution was violated.  

b. Other Complaints

79.       Since it has been adjudged with regard to the application that the right to a fair trial guaranteed in Article 36 of the Constitution was violated due to a contradiction with the principle of the "equality of arms", it was not deemed necessary to conduct a separate examination with regard to the other complaints (see § 33) within the scope of the right to a fair trial in terms of admissibility and the merits.

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

80.  The applicants requested that it be determined that the right to a fair trial was violated, that the judgment of the Court of Instance be removed and that compensation be paid.

81.  Article 50 of the Code numbered 6216 with the side heading "Judgments" 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 judgment of violation is delivered, what needs to be done for the removal of the violation and its consequences shall be adjudged. However, legitimacy cannot be reviewed, no judgment with the quality of an administrative act and action cannot be delivered.

(2) If the determined violation arises out of a court judgment, 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 favor 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 deliver a judgment 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 judgment of violation."

82.  As the violation determined in the case which is the subject matter of the application arises out of the violation of the principle of the equality of arms that is one of the elements of the right to a fair trial and there is legal interest in the removal of the violation by carrying out a retrial, it should be decided that a copy of the judgment be sent to the relevant court in order to carry out a retrial for the removal of the violation and its consequences in accordance with paragraphs (1) and (2) of the Code numbered 6216.

83.  Even though the applicants requested compensation, given that it has been decided in the present application that Article 36 of the Constitution was violated, that a copy of the judgment be sent to the relevant court in order to carry out a retrial for the removal of the violation and its consequences, it should be decided that the compensation request be dismissed.

84.  It should be decided that the trial expenses outlined below made by the applicants whose applications were found to be admissible be paid to the applicants. 

V. JUDGMENT

In the light of the reasons explained, it is UNANIMOUSLY held on 9/1/2015;

A.        

1.         That the allegations of the applicants Ali Haydar ESER, Tamer KARSLIOĞLU, Hatice Senay GÜNAYDIN, Tamer ÇETİN, Mehmet Koray ERYAŞA and Mehmet Emrah KÜÇÜKAKÇA pertaining to the right to liberty and security are INADMISSIBLE due to ''lack of jurisdiction ratione temporis'',

2.         That the complaints of the applicants Hatice Senay GÜNAYDIN, Tamer ÇETİN, Mehmet Koray ERYAŞA and Burak ÇETİN pertaining to the right to liberty and security that falls within the scope of the fulfillment of liberty depriving punishments delivered by courts are INADMISSIBLE due to ''being manifestly ill-founded'',

3.         That the complaints of the applicants Metin ÖLMEZ, Zeki MESTEN, Hakan ÖZERGÜN, Ekrem Saltuk BAYSAL, Deniz Mehmet IRAK and Ahmet Yasin ERDOĞAN with a view to the right to a fair trial are INADMISSIBLE due to ''being made out of time'',

4.         That the allegations of the applicants Necmi YILDIRIM, Ali Haydar ESER, Tamer KARSLIOĞLU, Yankı BAĞCIOĞLU, Mehmet AYGÜN, Fahri Yavuz URAS, Tuna EROL, Burak ÇETİN, Kubilay Şükrü ÖZDEMİR, Erkan DEMİR, Murat ÖNDER, Mehmet Koray ERYAŞA, Tamer ÇETİN, Hatice Senay GÜNAYDIN, Engin TURAN, Yiğit Ali ADLIĞ, Hakan ÇETİNKAYA, Mehmet Emrah KÜÇÜKAKÇA, Esin Tolga UÇAR, Şafak YÜREKLİ, Hüseyin AKIN and Bahattin ŞEN that the right to a fair trial was violated in terms of the principle of the equality of arms ARE ADMISSIBLE,

B.       That the right to a fair trial enshrined in Article 36 of the Constitution of the applicants whose applications have been found to be admissible  WAS VIOLATED,

C.       That the request of the applicants for compensation BE DISMISSED,

D.       That a copy of the judgment be SENT to the related Court for retrial in order for the violation and the consequences thereof to be removed,

E.       That the trial expenses made by the applicants Metin ÖLMEZ, Zeki MESTEN, Hakan ÖZERGÜN, Ekrem Saltuk BAYSAL, Deniz Mehmet IRAK and Ahmet Yasin ERDOĞAN be charged on the applicants,

F.         1. That the fee of TRY 206.10 paid separately by the applicants Engin TURAN, Yiğit Ali ADLIĞ and Hakan ÇETİNKAYA for the file no 2014/1760 be PAID separately; that the counsel's fee of TRY 1,500.00 be PAID jointly,

2. That the fee of TRY 206.10 paid separately by the applicants Necmi YILDIRIM for the file no 2014/1052, Fahri Yavuz URAS for the file no 2014/2981, Bahattin ŞEN for the file no 2014/519 and Kubilay Şükrü ÖZDEMİR for the file no 2014/454 be PAID separately,

3. That the trial expenses of TRY 1,706.10 in total, composed of the application fee of TRY 206.10 and the counsel's fee of TRY 1,500.00 paid by the applicant Yankı BAĞCIOĞLU for the file numbered 2014/253, Mehmet AYGÜN for the file numbered 2014/864, Murat ÖNDER for the file numbered 2014/2253, Tamer ÇETİN for the file numbered 2014/305, Hatice Senay GÜNAYDIN for the file numbered 2014/3778 and Esin Tolga UÇAR for the file numbered 2014/566 be PAID separately,

4. That the fee of TRY 206.10 paid separately by the applicants Ali Haydar ESER for the file numbered 2014/2184 and Tamer KARSLIOĞLU for the file numbered 2014/2188 be PAID separately; that the counsel's fee of TRY 1,500.00 be PAID jointly,

5.   That the fee of TRY 206.10 paid separately by the applicants Tuna EROL for the file numbered 2014/1709, Burak ÇETİN for the file numbered 2014/1697 and Erkan DEMİR for the file numbered 2014/1710 be PAID separately; that the counsel's fee of TRY 1,500.00  be PAID jointly,

6.   That the fee of TRY 206.10 paid separately by the applicants Mehmet Koray ERYAŞA for the file numbered 2014/5645 and Mehmet Emrah KÜÇÜKAKÇA for the file numbered 2014/1956 be PAID separately; that the counsel's fee of TRY 1,500.00 be PAID jointly,

7.   That the fee of TRY 206.10 paid separately by the applicants Şafak YÜREKLİ for the file numbered 2014/2179 and Hüseyin AKIN for the file numbered 2014/2178 be PAID separately; that the counsel's fee of TRY 1,500.00 be PAID jointly,

G-      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,