11 January 2018 Thursday

Alparslan Altan [PA] (no. 2016/15586, 11 January 2018)

The Facts

On 16 July 2016, following the suppression of the coup attempt of 15 July 2016, the applicant, who was holding office as a justice of the Constitutional Court, was taken into custody within the scope of an investigation initiated by the Ankara Chief Public Prosecutor’s Office. Thereupon, by the decision of the Ankara 2nd Magistrate Judge’s Office dated 20 July 2016, the applicant’s detention was ordered for his alleged membership of an armed terrorist organization.

On 25 October 2017, the Ankara Chief Public Prosecutor’s Office issued a motion addressed to the Chief Public Prosecutor’s Office of the Court of Cassation for bringing a criminal case against the applicant alleged to be a member of an armed terrorist organization.

The applicant’s investigation file is still pending before the Chief Public Prosecutor’s Office of the Court of Cassation, and he is still detained on remand.

On the other hand, the Plenary of the Constitutional Court decided, on 4 August 2016, that the applicant be dismissed from office.

The Applicant’s Allegations

Maintaining that he was detained on remand despite the lack of criminal suspicion against him and in breach of the safeguards prescribed for his profession; that there was no ground justifying his detention; and that his detention amounted to a disproportionate measure, the applicant alleged that his right to personal liberty and security was breached.

The applicant further claimed that his apprehension was unlawful; that the magistrate judge’s offices were contrary to the principle of natural judge and the principle of independent and impartial tribunal; that he was unlawfully dismissed from profession; that he was ill-treated in custody; and that seizure of his belongings and assets was devoid of legal basis. He also maintained that his fundamental rights and freedoms were violated due to some other practices.

The Court’s Assessment

Alleged Unlawfulness of Detention

In brief, the Constitutional Court made the following assessments:

In Article 19 § 1 of the Constitution, it is set out in principle that everyone has the right to personal liberty and security. In Article 19 §§ 2 and 3, it is provided that individuals may be deprived of liberty under the circumstances stated therein and with due process of law. Therefore, the freedom of a person may be restricted only in cases where one of the circumstances specified in this article exists.

Moreover, an interference with the right to liberty and security constitutes a breach of Article 19 of the Constitution unless it also complies with the conditions set out in Article 13 of the Constitution in which the criteria with respect to the restriction of fundamental rights and freedoms are specified. It is therefore necessary to determine whether the restriction complies with the requirements enshrined in Article 13 of the Constitution; i.e., the requirements of being prescribed by law, relying on one or more valid reasons specified in the relevant articles of the Constitution, and not being contrary to the principle of proportionality.

Pursuant to Article 19 § 3 of the Constitution, the detention measure can be applied only for “individuals against whom there is a strong indication of guilt”. In other words, the prerequisite for detention is the existence of a strong indication that the individual has committed an offence. Therefore, in every concrete case, it must be assessed whether this prerequisite has been fulfilled or not prior to making an examination as to the other requirements of detention. Existence of strong indication of guilt is acknowledged only in cases where the accusation is supported with convincing evidence likely to be regarded as strong.

In every concrete case, it falls in the first place upon the judicial authorities deciding detention cases to determine whether the prerequisites for detention, i.e., the strong indication of guilt and other grounds exist, and whether the detention is a proportionate measure. As a matter of fact, those authorities, having direct access to the parties and evidence, are in a better position than the Constitutional Court in making such determinations. However, it is the Constitutional Court’s duty to review whether the judicial authorities have exceeded the discretion conferred upon them. The Constitutional Court’s review must be conducted especially over the detention process and the grounds of detention order by having regard to the circumstances of the concrete case.

In line with these general principles, it must be primarily assessed whether there is a strong indication of guilt on the part of the applicant in the present case.

In the detention order against the applicant, it was stated, referring to the reports in the case file, search and seizure reports and all content of the file, that there was concrete evidence showing the existence of strong suspicion of guilt on the part of the suspects, including the applicant. In their report, the investigation authorities relied on the statements of the anonymous witnesses and the suspects, the content of the conversations between the other persons via “ByLock” and their cell phone signals as the evidence pointing to the applicant’s having committed the imputed offence.

The investigation file reveals that the applicant’s name was involved and certain issues regarding him was discussed in the content of the conversations between some persons (Ö.İ., S.E. and B.Y.) other than the applicant, via “ByLock”. Those conversations took place between Ö.İ., a teacher and the civilian imam within FETO/PDY responsible for the judicial members, S.E., a rapporteur and incumbent of FETO/PDY within the Constitutional Court, and B.Y, a rapporteur and member of the FETÖ/PDY. In this scope, it has been understood; that in the conversations between Ö.İ. and S.E., the applicant was referred to by the code name “Selahattin”, that Ö.İ. had a request to be conveyed to the applicant, and he also asked that the communication for the request be made through S.E., that Ö.İ. requested from S.E. to learn from the applicant the user code of the telephone line used by him, that S.E. gave information to Ö.İ. about the use of the telephone line that was stated to have been sent to the applicant by Ö.İ., and that Ö.İ. and S.E. made remarks about the applicant’s dissenting opinion in a judgment of the Constitutional Court in an individual application lodged by a journalist detained on the basis of charges related to the FETÖ/PDY. In the conversations between Ö.İ. and B.Y., Ö.İ. told the date and time when the applicant would come and asked B.Y. to tell the applicant that he would welcome him. Ö.İ. also requested that the applicant would tell one of the justices of the Constitutional Court his opinion as to which candidate(s) would be supported in the election of the deputy president of the Constitutional Court.

Furthermore, it has been determined that the telephone line, which was mentioned during the conversations between Ö.İ. and S.E. via “ByLock” and considered by the investigation authorities to have been sent to the applicant, signalled from the applicant’s home address —housing complex of the justices the Constitutional Court— and it also signalled at the places from which the applicant’s registered phone line signalled at the same time.

In addition, R.Ü., who held office as a rapporteur in the Constitutional Court, submitted in his statements taken by the investigation authorities as suspect; that considering the applicant’s approach in the individual applications where any members of the FETÖ/PDY was a party, as well as considering his relations with the rapporteurs who were members of this organization, he reached the opinion that the applicant was also a member of the FETÖ/ PDY, that the applicant consulted Rapporteur S.E. –reported to be the person responsible for the Constitutional Court on behalf of the FETÖ/PDY– on how he should act, that S.E. (according to his own words) contacted the civil person who was the imam responsible for the Constitutional Court (or the high judicial imam) and the applicant acted in accordance with the instructions he received, and that the applicant was referred to by the code name “Selahattin” in the FETÖ/PDY. Besides, one of the anonymous witnesses who held office as a rapporteur in the Constitutional Court stated that the applicant was a member of the FETÖ/PDY and followed-up certain applications lodged with the Constitutional Court. Another anonymous witness stated that from the applicant’s social relations, he had reached the opinion that the applicant was a member of the FETÖ/PDY.

Therefore, it appears that the investigation file contained evidence supporting the existence of strong indication of guilt on the part of the applicant.

In the present case, the investigation authorities’ considerations as to the existence of the grounds for detention and as to the proportionality of the applicant’s detention are not unfounded.

For the reasons explained above, this part of the application must be declared inadmissible for being manifestly ill-founded.

Other Allegations

The Constitutional Court has declared the application inadmissible for non-exhaustion of domestic remedies in so far as it relates to the applicant’s allegations that his apprehension was unlawful, that he was dismissed from the office unlawfully, that he was subject to ill-treatment in custody, and that his belongings and assets were seized unlawfully. The Constitutional Court found the rest of the allegations inadmissible on the ground of manifestly ill-founded, including the allegation that magistrate judgeship did not comply with the principle of natural judge and the principle of independent and impartial tribunal.