28 June 2018 Thursday
Melih Sivas (no. 2016/15634, 28 June 2018)
The Facts
Following the coup-attempt of 15 July, within the scope of an investigation conducted by the chief public prosecutor’s office into the unit of the Fetullahist Terrorist Organization and/or Parallel State Structure (FETÖ/ PDY) within the air force academy, the applicant was detained on remand by the order of the Magistrate Judge, on suspicion of having involved in, and provided armed support for, the coup attempt.
Upon rejection by the Magistrate Judge of his appeal against the detention order, the applicant lodged an individual application. Thereafter, a criminal case was filed against the applicant.
At the end of the trial before the assize court pending this Court’s examination of the individual application, the applicant was sentenced to life imprisonment for attempting to overthrow the order established by the Turkish Constitution by use of force and violence and intentional killing. The trial has not been concluded yet and is pending before the district court of appeal.
Besides, the applicant was dismissed from the air force academy within the scope of the amendment introduced by the state of emergency decree law to the administrative organization of the military academy.
The Applicant’s Allegations
The applicant alleged that there was a breach of his right to personal liberty and security due to the alleged unlawfulness of his detention as well as of his right to education for being dismissed from the air force academy by virtue of the decree law.
The Court’s Assessment
Regard being had to the investigation documents, it appears that the applicant, a cadet in the air force academy, was detained on remand on the basis of the facts that the applicant being armed and fully-equipped had involved in the coup attempt and gave support to the coup plotters; that he had engaged in an armed conflict against the police and civilians as a result of which many civilians and police officers lost their lives or got injured. In the indictment, these facts are substantiated through video footages, ballistic reports and other material evidence.
As regards the investigations into the offences in connection with the FETÖ/ PDY, preventive measures other than detention may remain insufficient for the proper collection of evidence and safe conduction of the investigations. In the same vein, the probability of fleeing and tampering with the evidence of the persons having a link with the FETÖ/PDY is much higher than that of the offences committed in ordinary periods.
The offences imputed to the applicant, namely attempting to overthrow the Government of the Republic of Turkey, the constitutional order and the Grand National Assembly of Turkey or to prevent them from performing their duties, are subject to the severest criminal sanctions within the Turkish legal system and therefore involve the risk of fleeing. The detention order was issued by the Magistrate Judge on reasonable grounds such as the applicant’s probability of obfuscating, concealing and tampering with the evidence as well as fleeing.
Regard being had to the general conditions prevailing at the time when the detention order was issued, the particular circumstances of the case and the content of the detention order as a whole, the grounds for the applicant’s detention had factual basis. Given all the above-mentioned explanations as to the incident, the Court has considered that the detention measure is proportionate. It is explicit that there is no violation in terms of the alleged unlawfulness of the applicant’s detention.
For the reasons explained above, the Court found inadmissible the alleged violation of the right to personal liberty and security for being manifestly ill-founded.
The applicant’s complaints mainly concern the acts made through the decree law issued during the state of emergency. Considering that the relevant decree law was approved by the National Assembly and transformed to law, the Court decided not to proceed with the examination in respect thereof.
In the present case, the applicant’s complaint about his inability to continue his education due to being dismissed from the air force academy was examined within the scope of the right to education.
The military academies, which had been operating under the administrative management of the Turkish Armed Forces, were then affiliated to the National Defence University recently established by the legal amendment introduced following the coup attempt of 15 July. It has been observed that this legal arrangement has not brought along a system change which deeply and structurally modified the personnel recruitment process but merely introduced a novelty in the administrative structure of the military academies.
Regard being had to the legal amendment as a whole, it has been revealed that the legislator aimed to re-arrange the military educational activities, which had worsened subsequent to the coup attempt, by bringing the military academies under the administration of civilian authorities. In this respect, it has been concluded that the amendment pursued the legitimate aim of maintaining public order following the coup attempt.
It is a reasonable expectation, for the applicant, to be appointed as a military officer upon being graduated from the air force academy by relying on the legislation which had been previously in force. However, the view that the role undertaken by the military academies during the coup attempt of 15 July has a direct impact on the national security and democratic social order, which was predicated upon by the legislator in making this legal amendment, is also undeniable.
This view was based on the charges that a significant number of military academy cadets were actively involved in, and assigned with certain tasks within, the coup attempt of 15 July. These charges were proven to be well-founded through the judicial and administrative proceedings against the military academy cadets within the scope of several investigations conducted countrywide as well as the conviction decisions rendered against them at the end of the proceedings. As a matter of fact, the applicant was also convicted. Besides, the State’s further sensitivity to this matter is a comprehensible approach on the ground that recruitment of cadets for the military academies is a matter directly related to the State’s public safety. Accordingly, it can be in no way concluded that the interference with the applicant’s right to education was not necessary for the State.
In fact, the applicant has not been fully deprived of his right to education as the legal arrangement also gives the opportunity of being enrolled to another higher education programme. Given the assurance and opportunities provided for the applicant, the Court has found proportionate the complained interference.
For the reasons explained above, the Court found inadmissible the alleged violation of the right to education, for being manifestly ill-founded.
