REPUBLIC OF TURKEY

CONSTITUTIONAL COURT

SECOND SECTION

JUDGMENT

MEHMET İLKER BAŞBUĞ

(Application no. 2014/912)

SECOND SECTION

JUDGMENT

I.          SUBJECT-MATTER OF THE APPLICATON

1.         The applicant alleged that his right to personal liberty and security, which is guaranteed in Article 19 of the Constitution, was violated during the investigation and prosecution conducted against him for being detained on remand as from 6/1/2012.

II.       APPLICATION PROCESS

2.         The application was directly lodged by the attorney of the applicant with the Constitutional Court on 22/1/2014. As a result of the preliminary examination that was carried out on administrative grounds, it was determined that there was no situation to prevent the submission of the application to the Commission.

3.         It was decided by the Third Commission of the Second Section on 22/1/2014 that the examination of admissibility be conducted by the Section and the file be sent to the Section.

4.         The facts and cases, which are the subject matter of the application, were notified to the Ministry of Justice on 24/1/2013. The Ministry of Justice presented its observation in relation to the application to the Constitutional Court on 24/2/2014.

5.         The observation of the Ministry of Justice was notified to the applicant on 25/2/2014. The applicant submitted his counter-statements to the Constitutional Court on 26/2/2014.

III.    THE FACTS

A.        TheCircumstances of the Case

6.         Having served as the Chief of General Staff of the Turkish Armed Forces between 2008 and 2010, the applicant retired with the rank of General.

7.         Within the scope of the case (File No: E.2010/106) dealt with by of the 13^th Chamber of the İstanbul Assize Court and publicly known as "the case of Internet memorandum", the court decided in the hearing on 30/12/2011 that a letter be written to the Chief Public Prosecutor's Office of İstanbul for the evaluation and performance of due action about the former Chief of General Staff whose name is mentioned in the statements of the accused in relation to defense and the documents.          

8.         Within the scope of the investigation initiated by the Chief Public Prosecutor's Office of İstanbul, upon the notification made to the counsel of the applicant, the statement of the applicant was taken on 5/1/2012 for the offences of “attempting to overthrow the Government of the Republic of Turkey or preventing it from doing its duties by use of force and violence” and “founding and leading an armed terrorist organization” that are regulated in Articles 312 and 314 of the Turkish Criminal Code.  Due to the said offences, the public prosecutor requested the incumbent court to detain the applicant.

9.         The applicant was detained for the offences of “attempting to overthrow the Government of the Republic of Turkey or preventing it from doing its duties by use of force and violence” and “founding and leading an armed terrorist organization” with the decision of the 12^th Chamber of the İstanbul Assize Court (File No: 2012/10 and dated 6/1/2012).

10.     The indictment of 2/2/2012 that was issued by the Chief Public Prosecutor's Office of İstanbul in relation to the  offences imputed to the applicant was accepted by the 13^th Chamber of the İstanbul Assize Court, and a criminal case was filed (File No:E.2012/14).      Since the case was requested to be joined with the file of the court (File No: E.2010/106) in the indictment, the case was joined with the file dealt with by the same court (File No: E.2010/106).

11.     The applicant who was tried within the scope of the file no. E.2010/106 of the 13^th Chamber of the İstanbul Assize Court attended hearing for the first time on 26/3/2012. The applicant objected to the jurisdiction of the court within the scope of trial; however, this objection was rejected by the Court.

12.     The 13^th Chamber of the İstanbul Assize Court joined the case in which the applicant was also being tried (File No: E.2010/106) with the file No: E.2009/191 publicly known as the "Ergenekon case". The applicant requested that the decision of joinder be revoked and the files be separated; however, this request was rejected by the 13^th Chamber of the İstanbul Assize Court.

13.     In the file (File No: E.2009/191), the 13^th Chamber of the İstanbul Assize Court pronounced the judgment in the hearing on 5/8/2013 and stating that the actions of the applicant as a whole constituted the offence of “attempting to overthrow the Government of the Republic of Turkey or preventing it from doing its duties by use of force and violence”, ruled, only in terms of this offence, that the applicant be sentenced to lifelong imprisonment and his state of detention be continued.  The applicant was not separately penalized for “founding and leading an armed terrorist organization”.

14.     On 12/8/2013, the applicant objected to the decision of his de jure detention which was rendered concurrently with the decision of conviction; however, his objection was dismissed by the decision (File No: Misc. 2013/553 and dated 22/8/2013)  of the 14^th Chamber of the İstanbul Assize Court.

15.     The reasoned decision in relation to the judgment that was pronounced has not been included in the case file yet.

16.     The applicant placed a request for release in the period when he was detained de jure following the decision of conviction. The 13^th Chamber of the İstanbul Assize Court decided by its decision (File No: Misc. 2013/872 and dated 31/12/2013) that there were no grounds to render a decision on the applicant’s request on the grounds that "the prosecution phase was completed and the objection against the decision of de jure detention was dismissed".

17.     The objection made against this decision was dismissed by the decision (File No: Misc. 2014/99 and dated 20/1/2014 of the 14^th Chamber of the İstanbul Assize Court.

B.       Relevant Law

18.      The last sentence of Article 145(1) of the Constitution is as follows:

"Cases regarding crimes against the security of theState, constitutional order and its functioning shall be heard before the civil courts in any case"

19.     Article 148(7) of the Constitution is as follows:

"The Chief of General Staff, the commanders of the Land, Naval and Air Forces and the General Commander of the Gendarmerie shall be triedin the Supreme Court for offences regarding their duties."

20.     Article 3 of the Law on the Fight Against Terrorism no. 3713 of 12/4/1991 is as follows:

"The crimes that are written in Articles 302, 307, 309, 311, 312, 313, 314, 315 and 320 and in paragraph one of Article 310 of the Turkish Criminal Code No. 5237 of 26/9/2004 are crimes of terrorism."

21.     Paragraphs one and two of Article 10 of the Law no.3713 is as follows:

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

Provisions in relation to persons whom the Constitutional Court and the Court of Cassation will try and provisions in relation to the duties of military courts shall be reserved.”

22.     Article 105 of the Law no. 6532 of  is as follows:

"The following provisions shall be abolished:

…

6) Articles 250, 251 and 252 of the Code of Criminal Procedure No. 5271 of 4/12/2004,"

23.     Paragraphs (4) and (7) of Provisional Article 2 of the Law no. 6352 is as follows:

"(4) The cases that are filed in the courts which are given competence in accordance with  the repealed Article 250(1) of the Code of Criminal Procedure shall continue to be heard by these courts until they are finalized with a final judgment.    No decision of lack of venue or lack of competence can be made in these cases. The provisions in relation to prosecution of Article 10 of the Law on the Fight Against Terrorism no. 3713 of 12/4/1991 shall also be applied in these cases.

 (7) References in the legislation that are made to the assize courts which are established in accordance with Article 250(1) of the Code of Criminal Procedure shall be considered to have been made to the assize courts that are stated in Article 10(1) of the Law on the Fight Against Terrorism.”

24.     Article 100 of the Code of Criminal Procedure no. 5271 of 4/12/2004  is as follows:

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

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

a) The fact that the suspect or the accused escapes, hides or if there are concrete facts giving rise to the suspicion that the suspect or the accused will escape.

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

1. Destruction, concealment or alteration of evidence,

2. Making an attempt to exert pressure on the witness, the aggrieved or others.

(3) Grounds for arrest may be considered to exist in the presence of grounds for strong suspicions that the crimes below have been committed:

a) As stipulated in the Turkish Criminal Code no. 5237 of 26.9.2004 ;

…

11. Crimes Against the Constitutional Order and the Operation of the Said Order (Articles 309, 310, 311, 312, 313, 314, 315),”

25.     Article 104 of the Law no. 5271 is as follows:

"(1) The suspect or the accused can request to be released at every phase of the investigation and prosecution stages.

(2) The continuation of detention of the suspect or the accused or the release thereof shall be decided by the judge or the court. The decision of rejection can be opposed to.

(3) When the file comes before the regional court of justice or the Court of Cassation, the decision pertaining to the request of release shall be made following the examination on the file by the regional court of justice or the relevant chamber of the Court of Cassation or the General Penal Assembly of the Court of Cassation; the said decision can also be made ex officio."

26.     Article 232(3) of the Code no. 5271 is as follows:

"The justification of the judgment shall be put into the case file within fifteen days at the latest following its pronouncement if it has not been put into minutes completely."

27.     Paragraphs (1) and (3) of (the repealed) Article 250 of the Code no. 5271 is as follows:

 "(1) As stipulated in Turkish Criminal Code;

…

c) The cases that are filed due to the crimes that are defined in Chapters Four, Five, Six and Seven of Section Four of Book Two (excluding Articles 305, 318, 319, 323, 324, 325 and 332), 

shall be heard in assize courts that are to be given competence in the provinces to be determined by the High Council of Judges and Prosecutors upon the proposal of the Ministry of Justice in a way that the jurisdiction may cover more than one province.

(3) Regardless of their titles and positions, those who commit the crimes that are mentioned in paragraph one shall be tried in the assize courts which are given competence with this Code. Provisions in relation to persons whom the Constitutional Court and the Court of Cassation will try and provisions in relation to the duties of military courts shall be reserved.”

IV.    EXAMINATION AND GROUNDS

28.     The individual application of the applicant (File No:2014/912 and dated 22/1/2014) was examined during the session held by the court on 6/3/2014, and it was accordingly held:

A.       The Applicant's Allegations

29.      In relation to personal liberty, the applicant claims that,

                                       i.     Paragraphs two and three of Article 19 of the Constitution were violated due to the facts that the court which ordered detention and the continuation of detention was not the court "having jurisdiction"; that the court having jurisdiction was the Constitutional Court with the title of Supreme Criminal Tribunal as per Article 148  § 7 of the Constitution; and that depriving from liberty "was not in accordance with the procedure that was set forth by law" within the scope of the principle of natural judge.

                                     ii.     As a person stands as an accused until finalization of the decision and is thus legally "detained", the facts that his requests for release on the ground that the reasonable time period was exceeded were rejected by the judicial authority that did not have jurisdiction, without indicating "relevant" and "sufficient" justification and by means of repeating legal terms, and that the opportunity to be released by being subject to conditional bail was not taken into consideration were in breach of Article 19 § 7 of the Constitution,

                                   iii.     Article 19 § 8 of the Constitution was violated due to the fact that a decision was not rendered about his request for release after the judgment was rendered since the stage of prosecution continued until the final judgment was rendered.

B.       Observations of the Ministry of Justice and Statement of the Applicant

30.     The relevant sections of the observations submitted by the Ministry of Justice within the scope of the qualification of complaints are as follows:

         "The applicant firstly claims that 'he was not tried by the court of venue and competence' (Application Form, pp. 4-6). When this claim is evaluated in terms of human rights adjudication, it is understood that the claim of the applicant is in relation to the right 'to be tried by a tribunal that is established by law' which is guaranteed in Article 6 § 1 of the European Convention on Human Rights (“the Convention”).   Therefore, it is evaluated that it would be appropriate to review this claim within the scope of 'the right to a fair trial' and within the framework of the above-mentioned provision of the Convention and Article 37 § 1 of the Constitution which corresponds to this provision.

            The applicant claims that he was deprived of his liberty by a court not having jurisdiction and asserts that paragraphs 2 and 3 of Article 19 of the Constitution were violated. As a justification for this claim, he claims that the allegations about him are within the scope of task-related offences and he needs to be tried before the Constitutional Court with the title of the Supreme Criminal Tribunal due to these offences (Application Form, pp. 18-22).   Our Ministry considers that these claims are strictly related to the claims in relation to the right "to be tried by a tribunal that is established by law" which is stated above (paragraph 3, above) and thus it is appropriate to examine them together. 

            The applicant claims that the fact that he has been detained for months (post-sentence detention) on the basis of an unjustified decision despite the fact that the short decision (judgment) is pronounced by the first instance court is contrary to Article 19 § 2 of the Constitution (Application Form, pp. 22-23).   On the basis of the legal arrangement that the reasoned decision needs to be written within 15 days following the announcement of the short decision as per the provision Article 232 § ) of the Code of Criminal Procedure, the applicant asserts that the principle that 'No one shall be deprived of his liberty save in accordance with a procedure prescribed by law' set forth in Article 5 § 1 of the Convention is violated due to the said reason. 

            The applicant requests that the case law of the Constitutional Court that has been established so far be changed in the light of paragraphs 2 and 3 of Article 19 of the Constitution and Article 5 § 1 (a) and (c) of the Convention and his existing legal status be considered as "detainee" in terms of also the Constitutional Court. He also claims that "the reasonable time period under detention was exceeded" within the meaning of Article 19 § 7 of the Constitution. According to the applicant, until the judgment of conviction is finalized, a person who is tried should be considered as a "detainee" within the meaning of Article 19 § 3 of the Constitution and his legal status should be considered as a "detainee" even if a decision of conviction about him was rendered by the first instance court. The applicant also asserts the following justification as an alternative to this argument of his: [Added within the meaning of (Convention, 5 § 1 a)] The starting point for "detention based on judgment" "should not be the date of pronouncement of the judgment in relation to conviction with a short decision but the date of learning the justification of the judgment of conviction".  As a result, the applicant asserts that the period of his detention was not reasonable.

       Our Ministry considers that it would be consistent with the case law of the ECHR to qualify the complaints of the applicant that are summarized above within the framework of Articles 5 § 1 (a) and (c) and 5 § 3 of the Convention and corresponding paragraphs 2, 3 and 7 of Article 19 of the Constitution.   However, it should be stated that the main complaint is that "the detention period is not reasonable" (Article 5 § 3 of the Convention and Article 19 § 7 of the Constitution). Given the date the application was filed, the question of law in relation to Article 5 § 1 (a) and (c) of the Convention and Article 19 §§ 2 and 3 of the Constitution is the admissibility criteria in relation to the examination of the said complaint.  In summary, the applicant asserts that the reasonable time period under detention was exceeded and the reasons of the decisions in relation to detention did not fulfill the requirement of being "relevant" and "sufficient", included non-personalized and stereo-type justifications; that the reason why the conditional bail measure was insufficient was not explained; and that the trial process was not carried out meticulously (Application Form, pp. 23-29).

            Lastly, on the basis of Article 19 § 8 of the Constitution, the applicant asserts that the decision dated December 31, 2013 of the 13^th Chamber of the İstanbul Assize Court did not fulfill the requirements of "habeas corpus" guarantee (Article 5 § 4 of the Convention) and thus the stated provision was violated. 

             It is considered that the claims of the applicant on the fact that his personal liberty was violated is within the framework of Article 19 of the Constitution within the scope that the orders on detention and the continuation of detention that were given at each stage, namely the investigation, trial and post-conviction decision, were made by courts that did not have “jurisdiction"; that the requests for release were dismissed without indicating "relevant" and "sufficient" justification; and that no decision was rendered on the request for release after the judgment was issued.

31.     The statement of the applicant within this scope is as follows:

           Unlike the observations of the Ministry of Justice, it is asserted that the allegation that "he was not tried by a court having venue and competence" was in breach of not the right to fair trial but the provisions of Article 19 of the Constitution that guarantee personal liberty and security.

      Since deprivation of liberty still continues and within the framework of the matters that are indicated in the application, the objections in relation to lack of jurisdiction ratione temporis and exceeding of prescribed time need to be dismissed."

32.     The relevant sections of the observations of the Ministry of Justice within the scope of admissibility, in general terms, are as follows:

           "It is submitted to the attention of the Constitutional Court that some parts of the complaints of the applicant in relation to the said right occurred before the date of September 23, 2012 (the date when the Constitutional Court’s jurisdiction ratione temporis started) which was the date for the Constitutional Court to receive individual applications; and that such kind of complaints were met by an objection of "lack of jurisdiction ratione temporis ". 

         In relation to the complaint of the applicant on long detention, regard being had to the judgments of the ECHR (ECHR, Rahman v. Turkey, no. 9572/05, February 15, 2011, par. 22; Zeki Şahin v. Turkey, no. 28807/05, February 22, 2011, par. 26; Tokmak v. Turkey, no. 16185/06, February 16, 2010, par. 27; Yiğitdoğan v. Turkey, no.20827/08, March 16, 2010, par. 22) and the previous judgments of the Constitutional Court on this subject as well as the decision on the merits of the first instance court dated August 5, , it is seen that the applicant’s detention [within the meaning of proceedings as to human rights] ended on August 5, 2013. Given the date of application, it is considered that it is within the Constitutional Court’s discretion to assess whether the complaint on long detention and the other relevant complaints were submitted to the Constitutional Court within the application period of 30 days.”

33.     The relevant sections of the observations of the Ministry of Justice within the scope of the complaint on the court having jurisdiction are as follows:

         "According to the provisions of 148 § 3 of the Constitution and of 45 § 2 of the Law no. 6216, in order to be able to apply to the Constitutional Court via individual application, the ordinary legal remedies must be exhausted. For this reason, it is essential that the alleged violations of fundamental rights and freedoms be brought forward first before, examined and resolved by, the inferior courts.

            The applicant maintained this allegation before both the prosecutor's office and the assize court. This applicant’s allegation was evaluated both in the indictment of the prosecutor's office (Indictment dated February 2, 2012, pp. 3-8) and by the court during the hearing dated March 26, 2012 and was rejected.  

            On the other hand, it is considered that the legal remedies have not been exhausted yet in terms of this complaint hereby which also has dimensions in relation to the right to fair trial (trial by a court that is established by law).  As mentioned above, these two legal problems which are closely related to each other may be settled finally by the Court of Cassation at the stage of appeal only.  Since the appeal stage for the file has not been finalized yet, it is thought that whether the legal remedies have been exhausted in terms of this complaint needs to be considered by the Constitutional Court.

     Furthermore, it should be stated that the implementation and interpretation of laws are within the venue of courts and it is important in terms of exhausting legal remedies to wait for the decisions of inferior courts as long as they are not explicitly arbitrary.  A similar request was previously examined by the Court of Cassation and it is observed that the said request was dismissed by the Court of Cassation (Judgment of the 9th Criminal Chamber of the Court of Cassation dated October 9, 2013, no.E.2013/9110 – K. 2013/12351).     Also taking into account this judgment of the Court of Cassation, it is considered that it is at the discretion of the Constitutional Court whether the implementation and interpretation of laws by the first instance court in the concrete case have any explicit arbitrariness in terms of the result achieved in terms of jurisdiction.   

            As is known, according to the case law of the ECHR, the implementation and interpretation of laws are within the jurisdiction of judicial bodies as long as they are not arbitrary, and the complaints on this matter in terms of Article 6 of the Convention are of the 4^th degree.   Indeed, the case law of the Constitutional Court has developed in this direction (Individual application judgment of the Constitutional Court no. 2012/869 of 16.4.2013, paragraph 20).   

            As a result, it is considered that it is useful to pay attention also to the information above while examining in terms of admissibility and merits of the applicant’s allegations that he was deprived of his liberty by a court having no jurisdiction."

34.     The statement of the applicant within this scope is as follows:

           "As indicated in the application, no objection was asserted regarding the fact that the court did not have jurisdiction; that the criminal acts which were attributed in the indictment could not be considered within the scope of the imputed offences; that it would be a professional misconduct had the criminal acts been really committed and that the jurisdiction belonged to the Supreme Criminal Tribunal. The incumbent court reached a conclusion through an arbitrary interpretation without making a sufficient assessment in respect thereof.

35.     The relevant sections of the observations of the Ministry of Justice within the scope of the complaint that the reasonable period under detention was exceeded are as follows:

         “It is assessed that in terms of the requests for release and examinations as to objections that were decided upon before 23 September 2012, an objection was raised for lack of jurisdiction ratione temporis  which is the same also for the complaints in relation to the justification of the said decisions.

            Regarding the situation after the specified date, it is seen that the applicant was deprived of his liberty on 5 January 2012 and that his detention ended on 5 August 2013 by the decision on the merits of the first instance court.    Therefore, the total period during which the applicant was detained is one year and seven months.

            According to ECHR judgments, in order for a person to be deprived of his liberty on the suspicion that he committed an offence, it is necessary to have reasonable suspicion or plausible reasons (raisons plausibles) for the fact that the person concerned committed the charged offences, and this necessity is a sine qua non condition in relation to detention.  This condition must continue existing at any stage during which the person’s continued detention is ordered. Besides, the person concerned must be released in case of discontinuance of the reasonable suspicion.

            When the evidence obtained and the particular circumstances of the concrete incident are taken into consideration, the existence of reasonable suspicion must be sufficient to convince a completely objective observer who looks at incidents from an external point of view.  When the evidence collected is submitted to an objective observer, if it is sufficient to form an opinion in the observer that the suspect or the defendant may have committed the charged offences, there is reasonable suspicion in the concrete incident. In other words, plausible reasons or reasonable suspicion requires "the existence of incidents, facts or information which was necessary to convince an objective observer that the accused may have committed the imputed offence". [Fox, Campbell and Hartley v. United Kingdom, no.12244/86 12245/86 12383/86, 30 August 1990, § 32; O’Hara v. United Kingdom, no: 37555/97, § 34).

            According to the judgments of the ECHR, in order for a person to be deprived of his liberty within the scope of Article 5 § 1(c) of the Convention, "the existence of reasonable suspicion" at the beginning is sufficient and "reasonable suspicion needs to sustain its existence" for continuation of detention. However, the existence of reasonable suspicion is not sufficient per se for the continuation of detention beyond a specific time and the existence of a real public interest that will legitimize deprivation of liberty is sought.

            In its judgments in the individual applications involving the allegation that the detention period exceeded the reasonable time period, the Constitutional Court emphasizes that it is not possible to assess whether the detention period is reasonable within the framework of a general principle; and that whether the period during which an accused is kept under detention is reasonable or not must be assessed under particular circumstances of each case (individual application no:2012/1303 dated 21 November 2013; § 51; individual application no:2012/1272 dated 4 December 2013).

            It is stated that the examination as to the admissibility and merits of the complaint that his detention exceeded the reasonable period of time must be made by taking into consideration the scope and unique complexity level of the case in which the applicant is being tried, whether or not the judiciary body has carried out the proceedings with due  attention and diligence expected from it, the period of time during which the applicant was detained, the justifications that were submitted by the court for the continuation of the applicant’s detention and specifically relied on since 27 July 2012 as well as in light of judgments of the ECHR.    

36.     The applicant’s statement within this scope is as follows:

         “Ordering continuation of the detention by repeating the matters that are stated in the application, without indicating "relevant" and "sufficient" justification and without "personalizing" the justification is in breach of personal liberty and security.

C.       The Constitutional Court’s Assessment

37.     It is considered that the applicant’s allegation that his personal liberty was violated is within the scope of personal liberty and security due to the facts that the decisions on detention and the continuation of detention that were made at each stage, namely the investigation, trial by the first instance court and post-conviction, were made by courts having no “jurisdiction”; that the requests for release were dismissed without indicating "relevant" and "sufficient" justification; and that no decision was made on the request for release after the judgment was issued.

38.     The application involving the alleged violation of paragraphs two, three, seven and eight of Article 19 of the Constitution needs to be examined in terms of admissibility within the scope of the stages covering the first instance proceedings and post-conviction, by taking into consideration the observations of the Ministry of Justice and the statements of the applicant.

1.      Admissibility

a.         Detention at the Stage of the First Instance Proceedings

39.     Article 148 § 3 of the Constitution is as follows:

"Everyone may apply to the Constitutional Court on the grounds that one of the fundamental rights and freedoms within the scope of the European Convention on Human Rights which are guaranteed by the Constitution has been violated by public authorities. In order to makean application, ordinary legal remedies must be exhausted."

40.     Article 47 § 5 of the Law no.6216 titled ''Procedure of individual application" is as follows:

       “The individual application should be made within thirty days starting from the date of the exhaustion of legal remedies; from the date when the violation is learned if no remedies are set forth.”  …”.

41.     In summary, the applicant stated that continuation of detention was ordered in a way to exceed a reasonable time through decisions that were taken by a judicial body which did not legally have "jurisdiction", without indicating "relevant" and "sufficient" justification and by repeating legal statements; and that the opportunity to be released under conditional bail  was not taken into consideration, which were in breach of his personal liberty.

42.     It is primarily set out as a principle in Article 19 § 1 of the Constitution that everyone has the right to personal liberty and security. Thereafter,  in paragraphs two and three, the cases under which a person may be deprived of his freedom on the condition that their forms and conditions are stipulated in law are enumerated in a non-exhaustive way. Therefore, a person may be deprived of liberty only 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, § 44). Similar to the provisions that are included in the Constitution, it is stipulated in Article 5 § 1 of the Convention that everyone has the right to personal liberty and security, that no one can be deprived of his/her liberty except for the cases that are specified in sub-paragraph (a) and (f) of the said paragraph and without being in conformity with the procedure that is set forth by law.

43.     In Article 13 of the Constitution with the heading “Restriction of fundamental rights and freedoms”, it is stipulated that fundamental rights and freedoms may only be restricted on the basis of the reasons that are mentioned in the relevant articles of the Constitution and by law without prejudice to their essence; and that these restrictions cannot be contrary to the letter and spirit of the Constitution, the requirements of the democratic social order and of the secular Republic and the principle of proportionality.  The criterion in Article 19 of the Constitution that the forms and conditions of cases when the right to personal liberty and security may be restricted are stipulated in law is in congruence with the principle in Article 13 of the Constitution that fundamental rights and freedoms can only be restricted by law (no.2012/239, 2/7/2013, § 44).

44.     The liability to ensure the conformity of the restrictions in relation to personal liberty and security with the principles and procedures that are stated in law belongs, in principle, to administrative bodies and courts of instance. The administrative bodies and courts are liable to obey the legal rules in relation to principle and procedure. The objective of Article 19 of the Constitution is to protect the individual from deprivation of his liberty in an arbitrary way, and, in exceptional cases that are set forth in the Article, the restrictions that are to be applied to personal liberty need to be in conformity with the objective of the Article and must not lead to any arbitrary practice.  For this reason, as per the provision which is included in Article 19 § 3 of the Constitution that the forms and conditions of deprivation of liberty be stipulated in law, the Constitutional Court must examine whether applicant’s detention has "legal" basis, and, in cases where law permits deprivation of liberty, whether the implementation of law is sufficiently accessible, irrefutable and predictable in order to prevent arbitrariness as per the principle of the rule of law (no.2012/239, 2/7/2013, § 45).

45.     Accordingly, a person may be deprived of his liberty only in the event that one of the cases which are specified within the scope of Article 19 of the Constitution exists.  The circumstanced under which the liberty of individuals may be restricted are listed in a limited way. In this framework, in accordance with Article 19 § 3 of the Constitution, persons against whom there is strong evidence of delinquency can only be detained through a decision by a judge in order to prevent their escape and to prevent the destruction and manipulation of evidence. Detention needs to be in conformity with the forms and conditions that are set forth in law. Article 5 § 1 of the Convention, it is stipulated that deprivation of liberty as set forth in cases which are stated in sub-paragraphs (a) and (f) can be carried out "in accordance with the procedure that is set forth by law".

46.     Taking into consideration the criteria to be in conformity with "the forms and conditions that are set forth in law" in Article 19 of the Constitution and "the procedure that is set forth by law" in Article 5 of the Convention, it is necessary to strictly conform to the condition of "lawfulness" in deprivation of liberty.

47.     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 ensure determination that the detention is unlawful 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 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 during the appellate review in accordance with the principles such as the adversarial trial and/or the equality of arms. Therefore, individual applications which would be lodged due to the aforementioned reasons for rendering of a decision ensuring the concerned person’s release may be filed as long as the state of detention continues and only after ordinary legal remedies are exhausted (no.2012/726, 2/7/2013, § 30).

48.     However, if a decision has been rendered by the inferior court, the request in terms of individual application will be limited to the determination of the unlawfulness of the "detention on the basis of a criminal charge" (no.2012/726, 2/7/2013, § 31).

49.     If the person has been convicted through the first instance decision at a court case that he is being tried at without being released, the detention period ends as of the date of conviction. That is because, in that case, the legal status of the person goes out of the scope of being "detained on the basis of a criminal charge", which constitutes the significant difference between the conditions of detention and adjudging a conviction in terms of the examination of individual application. Because of the fact that a decision on conviction has been rendered, it is proven that the charged crime is committed and that the perpetrator is responsible for this and thus a punishment restricting freedom is imposed on the accused.  Together with the conviction, the strong suspicion of guilt and the detention on the basis of a ground for detention of the person ends. In this regard, the conviction decision shall not separately need to be finalized.  The European Court of Human Rights (“the ECHR”) and the Court of Cassation do not consider the status of being detained after the decision of conviction as detention.  The ECHR considers the detention of a defendant who is convicted by the order of first instance court after the said decision of conviction to be "detention after conviction" as per Article 5 §1 (a) of the Convention and does not take it into consideration in the calculation of the detention period (no.2012/726, 2/7/2013, § 33).

50.     The status of being deprived of one's liberty "due to incrimination" is considered to be within the scope of Article 5 § 1(c) of the Convention whereas the status of depriving from liberty that is considered to be "detention after conviction" is considered to be within the scope of Article 5 § 1 (a). In both cases, there is no doubt that the decisions that bear the consequence of deprivation of liberty need to fulfill the condition of being "in accordance with a procedure prescribed by law".

51.     The beginning of the period that is spent under detention "due to incrimination" is the date of being arrested and taken under custody in cases where the applicant is arrested and taken under custody for the first time, whereas it is the date of detention in cases where s/he is directly detained. The end of the period is, as a rule, the date on which the individual is released or the date when the judgment is rendered by the first instance court (no.2012/1137, 2/7/2013, § 66). The evaluation as to whether the period that is spent under detention "due to incrimination" is reasonable or not will be made by taking into consideration the period that elapsed between the dates stated.

52.     In the present case, the applicant was detained after he was interrogated by the public prosecutor on 5/1/2012 due to the imputed offences through the decision (no.2012/10 and dated 6/1/2012) of the 12^th Chamber of the İstanbul Assize Court. His detention ended on 5/8/2013 when the conviction decision was announced during the applicant’s detention pending trial.

53.     It is understood that the applicant was deprived of his liberty "due to incrimination" until 5/8/2013 and that deprivation of liberty was within the scope of "detention after conviction" following the date of 5/8/2013.

54.     In lieu of these determinations, an individual application that is based on claims of being deprived of liberty "due to incrimination" through unjustified decisions which are rendered by a court not having "competence" needs to be lodged after the remedies are exhausted at every stage when a decision ordering the continuation of detention pending the first instance trial and, except for release, within due time following the decision of conviction whereby the detention status ends.  The ECHR also stated that an application within the scope of "detention due to incrimination" which is not lodged within six months following the decision of conviction is not within due time (Atalay Öztürk v. Turkey, (S.D.) no.54890/09, 7/1/2014, § 37-41)

55.     One of the conditions for the admissibility of individual applications is the term of application. The period is a procedural condition that needs to be taken into consideration at any stage of the application.

56.      As per Article 47(5) of the Law no.6216 and Article 64 § 1 of the Internal Regulations, individual applications need to be lodged within thirty days after the date when remedies are exhausted or the date when the violation is learned if no remedy is prescribed (no.2013/2001, 16/5/2013, §§ 14, 15).  

57.     In the concrete incident, the status of being detained "due to incrimination" ended on 5/8/2013 when the decision of conviction was announced during the applicant’s detention pending trial. 

58.     It is concluded that in the application statute of limitations passed in terms of the complaints that paragraphs two, three and seven of Article 19 of the Constitution are violated.

b.         Detention After the Decision of Conviction

59.     In the case where the applicant was charged with “attempting to overthrow the Government of the Republic of Turkey or preventing it from doing its duties” and "establishing and leading an armed terrorist organization",  the 13^th Chamber of the İstanbul Assize Court (File No:E.2009/191 and dated 5/8/2013) held that the actions of the applicant as a whole constituted the offence of “attempting to overthrow the Government of the Republic of Turkey or preventing it from doing its duties by use of force and violence” and that the applicant be sentenced to a life-long imprisonment and his state of detention be continued. 

60.     On 12/8/2013, the applicant appealed the decision on the continuation of detention that was rendered concurrently with the decision of conviction at the end of the trial; however his appeal was rejected on 22/8/2013. 

61.     The reasoned decision in relation to the judgment that was pronounced has not been included in the file yet.

62.     The applicant requested to be released in the period when he was under de jure detention following the decision of conviction. The 13^thAssize Court of İstanbul decided on 31/12/2013 that there were no grounds for rendering a decision about the request. The applicant’s appeal was rejected with the decision of the 14^th Chamber of the İstanbul Assize Court on 20/1/2014.

63.     The applicant points out that as the imputed acts are relevant to the duty, his detention continues through a court decision rendered by a court other than the Supreme Criminal Tribunal as stipulated in the Constitution and states that a decision must be rendered about the request for release following the decision of conviction by considering the matters that are accepted as a ground for detention other than the "criminal suspicion" and also the conditional bail.

64.     It is asserted that the liberty of the person is violated as the justification for the decision of conviction was not declared and that no decision was rendered with respect to the request for release in spite of the expiry of the statutory period pending the applicant’s detention as required by the decision of conviction rendered by a judicial body which is legally not "competent" in terms of the condition of being in compliance with the procedure that is set forth by law.

65.     It is seen that the complaints of the applicant in relation to the competence of the adjudication body and to the fact that a decision was not rendered on the request for release due to the fact that the justification of the decision of conviction was not put into the case file within the statutory period are not manifestly ill-founded. A complaint concerning the unlawfulness of the deprivation of liberty due to the decision that was made by a judicial body which was not "competent" may be raised only after ordinary legal remedies are exhausted as long as the detention continues.  

66.     As it is understood that the complaints in relation to de jure detention following the decision of conviction are not explicitly manifestly ill-founded and that there is no other reason for inadmissibility, this part of the application must be declared admissible.

2.     Merits

67.      Paragraphs one, two, three, seven and eight of Article 19 of the Constitution are as follows:

"Everyone has the right to personal liberty and security

  No one shall be deprived of his/her liberty except in the following cases where procedure and conditions are prescribed by law:

   Execution of sentences restricting liberty and the implementation of security measures decided by courts; arrest or detention of an individual in line with a court ruling or an obligationupon him designated by law; execution of an order for the purpose of the educational supervision of a minor, or for bringing him/her before the competent authority; execution of measures taken in conformity with the relevant provisions of law for the treatment, education or rehabilitation of a person of unsound mind, an alcoholic, drug addict, vagrant, or a person spreading contagious diseases to be carried out in institutions when such persons constitute a danger to the public;arrest or detention of a person who enters or attempts to enter illegally into the country or for whom a deportation or extradition order has been issued.

 Individuals against whom there is strong evidence of having committed an offence may be arrested by decision of a judge solely forthe purposes of preventing escape, or preventing the destruction or alteration of evidence, as well as in other circumstances prescribed by law and necessitating detention.  Arrest of a person without a decisionby a judge may be executed only when a person is caught in flagrante delicto or in cases where delay is likely to thwart the course of justice; the conditions for such acts shall be defined by law.

…

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

Persons whose liberties are restricted for any reason are entitledto 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.

68.     Paragraphs one, three and four of Article 5 of the European Convention of Human Rights are as follows:

“1. "Everyone has the right to liberty and security of person.  No one shall be deprived of his liberty save in the following cases andin accordance with a procedure prescribed by law:

1.             The lawful detention of a person after conviction by a competent court;"

…

c)    The lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

…

3.  Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4. 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."

69.     The applicant appealed the decision on his de jure detention as well as his conviction on 12/8/2013; however, his appeal was definitively rejected with the decision dated 22/8/2013 at the end of the evaluation that was made in accordance with the objection procedure (§ 14).

70.     There is no hesitation that the applicant was under de jure detention following the decision of conviction dated 5/8/2013. Therefore, the status of the applicant has gone beyond the scope of "detention in relation to suspicion of crime" within the sense of Article 19 § 3 of the Constitution and has turned into "detention in relation to a decision of conviction" within the scope of paragraph two.  At this stage, as per the relevant legislation, if the justification of the judgment that is the basis for depriving from liberty was not completely recorded in the minutes together with the judgment, it should be put in the case file within fifteen days at the latest following its pronouncement.

71.     Furthermore, Article 104 of the Law no. 5271 includes the provisions that the suspect or the defendant can request his/her release at any stage of the investigation and prosecution phases; that whether the status of detention of the suspect or the defendant shall continue or whether the suspect or the defendant will be released will be decided by the judge or the court; that the decision on the request for release shall be given by the relevant chamber of the Court of Cassation or the General Penal Assembly of the Court of Cassation when the file comes to the Supreme Court of Appeals.  

72.     In order to be able to make an appeal examination on the case in which the trial at the court of first instance ended, first the reasoned decision needs to be put in the case file and then the parties that make an appellate request need to have the opportunity to notify their objections, if any, in relation to the justification which sets the basis for the judgment pronounced.     

73.     Since the justification in relation to the final decision that is announced on 5/8/2013 was not put in the case file as of the date of application, it is seen that it is not possible to send the file to the Court of Cassation in order for an appellate examination and that it is not possible for the relevant Chamber of the Court of Cassation to give a decision in relation to the request for release.

74.     The basis for the complaints of the applicant is that the decisions on depriving from liberty were made by a court that did not have "competence" and that depriving from liberty without a "relevant" and "sufficient" justification was sustained in a way to exceed "reasonable duration".  The applicant does not assert that his right to a fair trial within the scope of 'being tried by a judicial body that is established by law' guaranteed in Articles 36 and 37 of the Constitution and in Article 6 § 1 of the Convention was violated.  At this stage, the applicant complains about the lack of venue on the part of the judicial body rendering the decisions depriving him from liberty and about the unconstitutionality of these decisions.

75.     It is seen that the offences that the applicant was charged with were taken as the basis in the determination of the judicial bodies which would run the investigation and prosecution; that the objections in relation to the competence of the court were rejected during the trial process by taking into consideration the offences that were claimed to have been committed (attempting to overthrow the Government of the Republic of Turkey or preventing it from doing its duties by  use of force and violence, founding and leading an armed terrorist organization) and that, as a result, the final decision was rendered at the end of the trial.

76.     At the end of the case in which the applicant was tried under detention starting from 6/1/2012 for the offences of “attempting to overthrow the Government of the Republic of Turkey or preventing it from doing its duties by use of force and violence” and “founding and leading an armed terrorist organization” upon the indictment of the Chief Public Prosecutor's Office of Istanbul on 2/2/2012, the 13^th Chamber of the İstanbul Assize Court decided on 5/8/2013 that the actions of the applicant as a whole constituted the offence of “attempting to overthrow the Government of the Republic of Turkey or preventing it from doing its duties by use of force and violence” and that the applicant be convicted only in terms of this offence.  The applicant was not separately convicted of "leading an armed terrorist organization".

77.     It is stated as it is mentioned in the conclusion of the indictment that the applicant committed the offences he is charged with by “conducting and organizing black propaganda and disinformation activities by means of the said Internet web sites and the memorandum that is issued with the purpose of legitimizing those web sites, openly issuing oral or written declarations in order to influence the ongoing investigation and prosecution towards Ergenekon Armed Terrorist Organization through the press statements he gave and various activities that he  conducted in line with the objectives of the organization, pressurizing State administrators, debilitating the State authority, establishing an environment of chaos and disturbance by distorting public order in the country whenever necessary, provoking the public against the State administrators and establishing an environment of anarchy, thus attempting to partially or completely prevent the government from performing its duties through such methods of force and violence, managing the psychological operational activity through his position and influence on other suspects with the title of senior head as of the date of offence, guiding the members of the organization, all in order to establish a military coup environment in line with the objectives of Ergenekon Armed Terrorist Organization".

78.     It is seen that the objection of the applicant in relation to the qualification of the acts and his assertion that the competent court is the Supreme Criminal Tribunal in his case are not unfounded given the above-stated facts. The objection which is within this scope needs to be assessed in terms of the criterion that a person may be deprived of liberty only when it is in conformity with the procedure that is set forth in law.

79.     As the appeal process in the trial is not finalized, the legal remedies in relation to the above-stated matters have not been exhausted yet. However, it is seen that there are constitutional guarantees also at this stage within the scope of being deprived of liberty. It needs to be examined "as soon as possible" whether deprivation of liberty is "legal" or not as per the rule "For any reason whatsoever, an individual whose liberty is restricted has the right to apply to an authorized judicial body in order to ensure that a decision is made about his/her case as soon as possible and in order to be released immediately if such restriction is in violation of the law" that is included in Article 19 § 8 of the Constitution.

80.     As per this provision of the Constitution, an individual whose liberty is restricted has the right to apply to an authorized judicial body in order to ensure that a decision is given about his/her case as soon as possible and in order to be released immediately if such restriction is unlawful. As no distinction is made in the paragraph in terms of the reason for restriction, the right to application is not limited to being deprived of liberty due to strong suspicion of guilt and detention. This guarantee also applies to the cases of being deprived of liberty that are stated in Article 19 § 2 of the Constitution.

81.     The notion of the lawfulness of deprivation of liberty also covers the principle that the body rendering the decision must be legally competent.  In this framework, the objection of the applicant that the court which gave the decision on him was not competent, that it was the Supreme Criminal Tribunal which would deal with the case is relevant to the unlawfulness of deprivation of liberty.

82.     It is apparent that the qualification of the acts in relation to the charged offences is directly related to the claim that the case needs to be heard at the Supreme Criminal Tribunal and that, in this framework, the objections in relation to the fact that the trial body was not competent as well as to the qualification of acts will be considered by the appeal body ex officio.   

83.     However, it is seen that the restriction on the applicant’s liberty may continue until a final judicial decision is rendered in relation to these matters. In the meantime, the applicant may be deprived of his liberty "without conformity with the procedure that is set forth by law" may arise.  Therefore, it is necessary to eliminate through legal remedies the possibility that an irreparable victimization occurs on the part of the applicant by taking into consideration the objection in relation to the competence of the trial body at this stage.

84.      Due to the fact that the reasoned decision has not been included in the file for a period exceeding seven months starting from the date of judgment, the applicant could not bring before the appeal body his claim that the decision on the continuation of his detention as well as his conviction was taken by an incompetent court is unlawful, and so is his deprivation of liberty.  It cannot be said that the applicant’s inability to challenge the unlawfulness of the decision whereby he deprived of liberty before the appellate authority is in compliance with the principles of legal security and legal certainty.

85.     At the stage following the final decision rendered during the trial at the first instance court, the applicant lodged a request for release with the 13^th Chamber of the İstanbul Assize Court which held the trial on 31/12/2013. As of this date, it is seen that the reasoned decision has not been announced by the Court and, in addition, it has been decided that there is no ground to render a decision on the request as "the prosecution phase was completed and it was decided to reject the objection that was lodged against the decision of de jure detention”. It has been accordingly observed that an effective judicial examination was not conducted as no examination as to the merits was made, which renders the right that is guaranteed in Article 19 § 8  of the Constitution dysfunctional.

86.     Due to the reasons explained, taking into consideration the facts that an appellate examination could not be held since the reason was not announced in the period elapsing as from the announcement of the judgment; that the alleged deprivation of liberty is not lawful and the request for release have not been examined by the appellate body, the trial court must render a decision on the request by also considering the possibility of conditional bail. The Constitutional Court therefore found a violation of Article 19 § 8 of the Constitution.

3.     Article 50 of the Law no.6216

87.     Under Article 50(1) of the Law no.6216, it is indicated that in the event that a violation decision is delivered at the end of the examination on merits, the necessary actions to remove the violation and its consequences are adjudged; however, a review for legitimacy cannot be done and any decision in the form of an administrative act and action cannot be delivered.   

88.     In the application, it has been concluded that Article 19 § 8  of the Constitution was violated. The applicant does not have any request for non-pecuniary compensation. In order to remove the violation within the scope of the right to personal liberty and security, the trial court must render a decision on the merits of the applicant’s request for release by also taking into consideration the conditional bail. 

89.     It has been held 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 which were made by the applicant, be reimbursed to the applicant.

V.                JUDGMENT

In the light of the reasons explained, it was UNANIMOUSLY held on 6/3/2014 that;

A.       The applicant’s complaints

1.         within the scope of being deprived of liberty pending his trial at the first instance court are INADMISSABLE due to "statute of limitations",

2.         Since the justification of the decision of conviction was not included in the case file within the statutory period, the complaints that no decision was given with respect to his request for release be declared ADMISSABLE,

B.       Due to the facts that his allegation concerning unlawful deprivation of liberty is rejected by the incumbent court without being efficiently examined and that it could not be taken before the Court of Cassation since the reasoned decision in relation to conviction was not pronounced, Article 19 § 8 of the Constitution was VIOLATED within the scope of the right to personal liberty and security,

C.       In order for due action to be taken and a decision to be taken in relation to the applicant’s request for release,  a copy of this judgment be sent to the incumbent court,

D.       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, which were made by the applicant, be REIMBURSED TO THE APPLICANT.