THE FACTS

[11-74] On 16 July 2016, following 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. On 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.

By the indictment of 16 January 2018 issued by the Chief Public Prosecutor’s Office at the Court of Cassation, a criminal case was filed against him before the 9^th Criminal Chamber of the Court of Cassation for his alleged membership of an armed terrorist organization.

The case has been pending by the examination date of the individual application, and the applicant is still detained on remand.

V. EXAMINATION AND GROUNDS

75. The Constitutional Court, at its session of 12 April 2018, examined the application and decided as follows.

A. Alleged Violation of the Presumption of Innocence

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

76. The applicant maintained; that in a newspaper article published before the coup attempt, it had been stated that some justices of the Constitutional Court would be arrested; and that while there had been no procedures of arrest, custody or detention on remand yet, the Ankara Chief Public Prosecutor’s Office had announced at the time of the coup attempt at night that investigations had been launched against some judges taking office in supreme courts, which demonstrated that the judges to be investigated had already been determined previously. In this regard, the applicant claimed that his presumption of innocence had been violated.

77. The Ministry, in its observations, made no explanation concerning the applicant’s allegations in this regard.

2. The Court’s Assessment

78. Presumption of innocence provides that no one shall be considered guilty until proven so before a court of law. As a result thereof, since the individual's innocence is “essential”, the burden of proof rests with the prosecution and thus no one can be imposed the liability to prove her/his innocence. Moreover, nobody can be considered as guilty by neither judicial authorities nor public authorities until their guilt is found established with a court decision. In this scope, the presumption of innocence is a principle that covers those who have been charged with a criminal offence but not convicted yet (see Kürşat Eyol, no. 2012/665, 13 June 2013, §§ 26 and 27).

79. The said presumption provides protection against being declared guilty by public authorities until proven guilty. In addition, freedom of expression, guaranteed by Article 26 of the Constitution, also includes the freedom to receive and impart information. For this reason, the presumption of innocence safeguarded by Article 38 § of the Constitution does not prevent the authorities from informing the public about a criminal investigation being carried out. However, since the presumption of innocence must be respected, the said provision of the Constitution requires that information be imparted with all the necessary attention and prudence (see Nihat Özdemir [Plenary], no. 2013/1997, 8 April 2015, § 22).

80. In the present case, in a statement issued by the Ankara Chief Public Prosecutor's Office while the coup attempt had not ended, it was announced that detention orders were given against the persons who were in contact with the FETÖ/PDY, the perpetrator of the coup attempt, and among these persons were some members of the supreme court. In the aforementioned statement, the applicant’s name was not mentioned and no such case was established either.

81. The announcement made by the Ankara Chief Public Prosecutor’s Office while the coup attempt was continuing, without mentioning the applicant’s name, to the effect that investigation had been launched into the incident and against the members of the FETÖ/PDY, the organisation behind the coup attempt, and that some suspects were taken into custody cannot be regarded as declaring the applicant guilty or criminalising him (for the judgments of the Court in the same vein, see Mustafa Başer and Metin Özçelik, no. 2015/7908, 20 January 2016, §§ 115-117; Süleyman Bağrıyanık and Others, no. 2015/9756, 16 November 2016, §§ 180 and 181). Besides, announcement to the public of the fact that an investigation has been initiated against a person per se does not contravene the presumption of innocence.

82. For the reasons explained above, since it is clear that there is no violation of the applicant’s presumption of innocence, this part of the application must be declared inadmissible for being manifestly ill-founded.

B. Alleged Violation of the Right to a Fair Trial

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

83. The applicant claimed that his right to a fair trial had been violated, stating that during the statement-taking process before the prosecutor’s office and the inquiry before the magistrate judge, he was asked general questions about the charges against him, as well as the concrete accusations and evidence against him were not explained, thus restricting his opportunity to defend himself against the charges and alleged grounds.

84. The Ministry, in its observations, did not make any explanation about these allegations.

2. The Court’s Assessment

85. The last sentence of Article 148 § 3 of the Constitution provides as follows:

 “In order to make an application, ordinary legal remedies must be exhausted”.

86. Article 45 § 2, titled “Right to individual application”, of the Code no. 6216 on Establishment and Rules of Procedures of the Constitutional Court provides as follows:

 “All of the administrative and judicial application remedies that have been prescribed in the code regarding the transaction, the act or the negligence that is alleged to have caused the violation must have been exhausted before making an individual application”.

87. Pursuant to the said provisions, individual application to the Constitutional Court is a remedy of subsidiary nature which may be resorted to in case of inferior courts’ failure to redress the alleged violations. As required by the subsidiary nature of individual application remedy, in order for an individual application to be lodged with the Court, ordinary legal remedies must first be exhausted (see Ayşe Zıraman and Cennet Yeşilyurt, no. 2012/403, 26 March 2013, §§ 16 and 17).

88. In the present case, the applicant lodged an individual application while the investigation process was still pending; a criminal case was filed against him afterwards. It appears that the prosecution process against the applicant has been continuing as of the date when his individual application has been adjudicated by the Constitutional Court. As a matter of fact, during the proceedings before the inferior courts as well as the subsequent appeal process, the applicant had the opportunity to put forward his complaints that he had not been informed of the facts forming bases for the charges against him as stated in the application form, which was allegedly in breach of his right to be aware of the charges (alleged offence) against him. In this context, it has been observed that the applicant submitted in the individual application process his complaints about the violation of the right to a fair trial during the investigation process, without waiting for the outcome of the proceedings before the inferior courts and the subsequent appeal process.

89. Consequently, this part of the application must be declared inadmissible for non-exhaustion of legal remedies on the ground that the applicant raised the alleged violations of his fundamental rights and freedoms in the individual application process without exhausting the legal remedies pending before the inferior courts and appeal authorities.

C. Alleged Violations of the Right to Respect for Private Life and Right to Respect for Home

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

90. The applicant, as a Justice of the Constitutional Court, claimed that his right to respect for his private life as well as his right to respect for his home had been violated, stating that the Ankara Chief Public Prosecutor's Office did not have the authority conduct an investigation against him and that therefore his home and office had been searched based on a search warrant issued by unauthorized authorities.

91. The Ministry, in its observations, did not make any explanation about these allegations.

2. The Court’s Assessment

92. In order for an individual application to be able to be lodged with the Constitutional Court, the ordinary legal remedies must be exhausted (see Ayşe Zıraman and Cennet Yeşilyurt, §§ 16, 17).

93. Article 141 § 1 (i) of Law no. 5271 provides that individuals who were subject to a search warrant that was disproportionately executed during the investigation or prosecution processes may claim their damages.

94. As regards the alleged unlawfulness of the search conducted by the investigation or judicial authorities with respect to the suspects during the investigation or prosecution processes, the Court has concluded, referring to the relevant case-law of the Court of Cassation, that although the primary judicial proceedings were not concluded on the date of examination of the individual application, the action for compensation stipulated in Article 141 of Law no. 5271 was an effective legal remedy to be exhausted (see Alaaddin Akkaşoğlu and Akis Yayıncılık San. ve Tic. A.Ş., no. 2014/18247, 20 December 2017, §§ 18-30).

95. In the present case, in accordance with the written instruction of the Ankara Chief Public Prosecutor’s Office, the applicant's home, office and car were searched on 16 July 2016. The lawfulness of these searches can be reviewed within the scope of the case to be filed under Article 141 of Law No. 5271. Compensation may also be awarded to the applicant where it is determined, through the action to be brought under this article, that the searches in question were unlawful. Accordingly, it has been concluded that the remedy of action for compensation specified in Article 141 of Law no. 5271 was an effective remedy available to the applicant and capable of redressing his damages, and that the examination of the individual application that has been lodged without exhausting this ordinary remedy is incompatible with the "subsidiary nature" of the individual application mechanism.

96. For these reasons, since it has been understood that an individual application has been lodged regarding the alleged violations of the applicant’s right to respect for his private life as well as the inviolability of domicile without exhaustion of available legal remedies, this part of the application must be declared inadmissible for non-exhaustion of legal remedies.

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

1. Alleged Unlawfulness of the Applicant’s Detention on Remand

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

97. The applicant claimed that his right to liberty and security had been violated, stating that he had been arrested despite the lack of suspicion of guilt as well as the evidence justifying it, and that there had been no risk that he would tamper with the evidence or flee.

98. The applicant also argued that he had been detained regardless of the safeguards afforded to him by virtue of his duty. According to the applicant, since he was a justice of the Constitutional Court on the date of his detention, the Plenary of the Constitutional Court should have ordered his investigation or prosecution and the investigation should have been conducted by the Court. The applicant further claimed that the investigation launched by the Ankara Chief Public Prosecutor's Office had been unlawful for lack of competence, as well as that the Ankara 5^th and 6^th Magistrate Judges, which ordered the applicant’s detention on remand and dismissed his subsequent appeal, lacked jurisdiction.

99. The applicant, considering that the situation of discovery in flagrante delicto could only be the case for those who actively participated in the coup attempt or who were caught committing an offence, claimed that membership of a terrorist organisation that was a continuing offence did not require the immediate application of the provisions applicable to the cases of in flagrante delicto. The applicant maintained that he had no relation with the coup attempt or the organisation, and that he had not been caught in flagrante delicto.

100. The applicant also claimed that the detention order and the decision dismissing his objection to his detention on remand contained no concrete accusation or evidence justifying the strong suspicion of guilt; did not explain the facts regarding the suspicions of tampering with evidence and fleeing as well as the reasons why the judicial control would not be sufficient; and did not assess whether his detention on remand was proportionate, although he exercised an important jurisdiction as a justice of the Constitutional Court.

101. In addition, the applicant argued that he was detained without an investigation justifying his detention on remand in terms of whether he committed the offence of membership of an armed terrorist organisation and whether he had any relation or connection with the said organisation, and that therefore an image of his being guilty was created in the public.

102. Lastly, the applicant claimed that the Ankara Chief Public Prosecutor's Office and the Ankara 5^th Magistrate Judge considered him to have belonged to a particular religious group and subsequently to have been a member of an armed terrorist organisation and had links with this organisation without any legal basis or justification, which according to him constituted discrimination on religious grounds.

103. The Ministry, in its observations, specified that according to Article 161 § 8 of Law no. 5271, public prosecutors could directly investigate certain offences even if they had been committed during or as required by their duties, and that the membership of an armed terrorist organisation with which the applicant was charged fell within this scope; therefore, the special investigation procedures laid down in Law no. 6216 was not applicable to the impugned offence. The Ministry also pointed to the fact that the impugned offence was of continuous nature and that there was a situation of discovery in flagrante delicto.

104. The Ministry, noting that it had been stated by the Ankara 5^th Magistrate Judge ordering the applicant’s detention that there had been concrete evidence in the case file regarding the imputed offence, stated that there were sufficient indications and grounds justifying the applicant’s detention on remand, which was therefore a proportionate measure.

105. Consequently, the Ministry considers that the applicant’s allegations in this regard are manifestly ill-founded.

b. The Court’s Assessment

106. Article 13 of the Constitution, titled “Restriction of fundamental rights and freedoms”, reads as follows:

“Fundamental rights and freedoms may be restricted only by law and in conformity with the reasons mentioned in the relevant articles of the Constitution without infringing upon their essence. These restrictions shall not be contrary to the letter and spirit of the Constitution and the requirements of the democratic order of the society and the secular republic and the principle of proportionality.”

107. Article 19 § 1 and the first sentence of Article 19 § 3 of the Constitution read as follows:

“Everyone has the right to personal liberty and security.

...

Individuals against whom there is strong evidence of having committed an offence may be arrested by decision of a judge solely for the purposes of preventing escape, or preventing the destruction or alteration of evidence, as well as in other circumstances prescribed by law and necessitating detention."

108. The applicant’s allegations in this part should be examined within the scope of the right to personal liberty and security and from the standpoint of Article 19 § 3 of the Constitution.

109. In addition, alleged violation of the principle of equality set forth in Article 10 of the Constitution cannot be considered in abstract terms, and it must be considered in connection with other fundamental rights and freedoms within the scope of individual application. Accordingly, the applicant’s allegation that there was a difference between the treatment to the others who were in a similar situation with him and the treatment of him, and that this difference did not have a legal basis and was based on a discriminatory ground such as colour, sex, religion, language, etc., which was according to him in breach of the principle of equality, but about which he failed to provide reasonable evidence, should be dealt with within the scope of the right to personal liberty and security (for the Court’s assessments in the same vein, see Onurhan Solmaz, no. 2012/1049, 26 March 2013, §§ 33, 34; and İrfan Gerçek, no. 2014/6500, 29 September 2016, § 32).

i. Applicability

110. Article 15 of the Constitution entitled “Suspension of the exercise of fundamental rights and freedoms” reads as follows:

“In times of war, mobilization, martial law or a state of emergency, the exercise of fundamental rights and freedoms may be partially or entirely suspended, or measures which are contrary to the guarantees embodied in the Constitution may be taken to the extent required by the exigencies of the situation, as long as obligations under international law are not violated.

Even under the circumstances indicated in the first paragraph, the individual’s right to life, the integrity of his/her corporeal and spiritual existence shall be inviolable except where death occurs through acts in conformity with law of war; no one shall be compelled to reveal his/her religion, conscience, thought or opinion, nor be accused on account of them; offences and penalties shall not be made retroactive; nor shall anyone be held guilty until so proven by a court ruling.”

111. The Court specified that in examining the individual applications against emergency measures, it would take into account the protection regime set out in Article 15 of the Constitution with respect to fundamental rights and freedoms. Accordingly, besides the existence and declaration of a state of emergency, in cases where the measure constituting an interference with the fundamental rights and freedoms –subject of the individual application– is related to the state of emergency, then the application will be examined in accordance with Article 15 of the Constitution (see Aydın Yavuz and Others, §§ 187-191). The Court also concluded that the effect of the measures taken by the public authorities until the completion of the procedural processes concerning the declaration of a state of emergency after the coup attempt of 15 July, on fundamental rights and freedoms must also be examined under Article 15 of the Constitution (see Aydın Yavuz and Others, § 241).

112. The accusation which was brought against the applicant by the investigation authorities and for which he was detained on remand is his alleged membership of the FETÖ/PDY that was stated to be the structure behind the coup attempt. The Court considered that the impugned accusation was related to the incidents underlying the declaration of a state of emergency (see Selçuk Özdemir, § 57).

113. In this respect, the lawfulness of the applicant’s detention will be reviewed under Article 15 of the Constitution. Prior to such review, whether the applicant’s detention on remand was in breach of the guarantees set forth in Articles 13, 19 and in other Articles of the Constitution will be determined, and if there is any violation, it will be assessed whether the criteria set forth in Article 15 of the Constitution rendered such a violation lawful (see Aydın Yavuz and Others, §§ 193-195, 242; and Selçuk Özdemir, § 58).

ii. Admissibility

(1) General Principles

114. It is set forth in Article 19 § 1 of the Constitution that everyone has the right to personal liberty and security. In addition to this, the circumstances in which individuals may be deprived of liberty with due process of law are laid down in Article 19 §§ 2 and 3 of the Constitution. Accordingly, the right to personal liberty and security may be restricted only in cases where one of the situations laid down in this Article exists (see Murat Narman, no. 2012/1137, 2 July 2013, § 42).

115. In addition, an interference with the right to personal liberty and security will lead to a violation of Article 19 of the Constitution in the event that it does not comply with the conditions prescribed in Article 13 of the Constitution where the criteria for restricting fundamental rights and freedoms are set forth. For this reason, it must be determined whether the restriction complies with the conditions set out in Article 13 of the Constitution, i.e., being prescribed by law, relying on one or more of the justified reasons provided in the relevant articles of the Constitution, and not being in breach of the principle of proportionality (see Halas Aslan, no. 2014/4994, 16 February 2017, §§ 53-54).

116. Article 13 of the Constitution provides that fundamental rights and freedoms may be restricted only by law. On the other hand, it is set out in Article 19 of the Constitution that the procedures and conditions under which the right to personal liberty and security may be restricted must be prescribed by law. Accordingly, it is necessary in accordance with Articles 13 and 19 of the Constitution that the detention on remand, as an interference with personal liberty, must have a legal basis (see Murat Narman, § 43; and Halas Aslan, § 55).

117. According to Article 19 § 3 of the Constitution, individuals against whom there is strong evidence of having committed an offence may be arrested by decision of a judge for the purposes of preventing escape or preventing tampering with evidence, as well as in other circumstances prescribed by law and necessitating detention (see Halas Aslan, § 57).

118. Accordingly, detention of a person primarily depends on the presence of a strong indication of having committed an offence. This is a sine qua non sought for detention. For this, it is necessary to support an allegation with plausible evidence which can be considered as strong. The nature of the facts which can be considered as convincing evidence is to a large extent based on the particular circumstances of the case (see Mustafa Ali Balbay, no. 2012/1272, 4 December 2013, § 72).

119. For an initial detention, it may not always be possible to present all evidence indicating that there is a strong suspicion of having committed offence. As a matter of fact, another purpose of detention is to take the criminal investigation or prosecution forward by means of verifying or refuting the suspicions against the relevant person (see Dursun Çiçek, no. 2012/1108, 16 July 2014, § 87; and Halas Aslan, § 76). Therefore, it is not absolutely necessary that the sufficient evidence have been collected in the course of arrest or detention. Thus, the facts which will form a basis for the criminal charge and hence the detention must not be assessed at the same level with the facts that will be discussed at the subsequent stages of the criminal proceedings and constitute a basis for conviction (see Mustafa Ali Balbay, cited above, § 73).

120. Besides, it is provided in Article 19 of the Constitution that an individual may be detained for the purpose of preventing “escape” or “tampering with evidence”. However, the constitution-maker, by using the expression of “…as well as in other circumstances prescribed by law and necessitating detention”, points out that the grounds for detention are not limited to those set forth in the Constitution and sets forth that the grounds for detention other than those provided in the relevant Article can only be prescribed by law (see Halas Aslan, § 58).

121. Article 100 of Law no. 5271 regulates the grounds for detention and sets forth these grounds. Accordingly, detention may be ordered in cases where the suspect or accused escapes or hides or there are concrete facts which raises the suspicion of escape or where the behaviours of the suspect or accused tend to show the existence of a strong suspicion of tampering with evidence or attempting to put an unlawful pressure on witnesses, victims or other individuals. In the relevant Article, the offences regarding which the ground for arrest may be deemed to exist ipso facto are enlisted, provided that there exists a strong suspicion of having committed those offenses (see Ramazan Aras, no. 2012/239, 2 July 2013, § 46; and Halas Aslan, cited above, § 59). However, for an initial detention, it may not be always possible, by the very nature of the case, to present concretely all grounds for detention set forth in the Constitution and the Law (see Selçuk Özdemir, § 68).

122. It is also set out in Article 13 of the Constitution that the restrictions on fundamental rights and freedoms cannot be contrary to the “principle of proportionality”. The expression of “requiring detention” set out in Article 19 § 3 of the Constitution points out the proportionality of detention (see Halas Aslan, § 72).

123. The principle of proportionality consists of three sub-principles, which are “suitability”, “necessity” and “proportionality stricto sensu”. Suitability requires that the interference envisaged is suitable for achieving the aim pursued; the necessity requires that the impugned interference is necessary for achieving the aim pursued, in other words, it is not possible to achieve the pursued aim with a less severe interference; and proportionality requires that a reasonable balance is struck between the interference with the individual’s right and the aim sought to be achieved by the interference (see the Court’s judgment no. E.2016/13, K.2016/127, 22 June 2016, § 18; and Mehmet Akdoğan and Others, no. 2013/817, 19 December 2013, § 38).

124. In this scope, one of the issues to be taken into consideration is the proportionality of the detention, given the gravity of offence as well as the severity of the punishment to be imposed. As a matter of fact, it is provided in Article 100 of Law no. 5271 that no detention shall be ordered if the detention is not proportionate to the significance of the case, expected punishment or security measure (see Halas Aslan, § 72).

125. In addition, in order for a detention to be proportionate, other protection measures alternative to detention should not be sufficient. In this framework, in cases where the obligations imposed by virtue of conditional bail, which has less effect on fundamental rights and freedoms compared to detention, are sufficient to achieve the legitimate aim pursued, the detention measure should not be applied. This issue is set forth in Article 101 § 1 of Law no. 5271 (see Halas Aslan, § 79).

126. In every concrete case, it falls in the first place upon the judicial authorities deciding detention cases to determine whether the prerequisites for detention, i.e., the strong indication of guilt and other grounds exist, and whether the detention is a proportionate measure. As a matter of fact, those authorities which have direct access to the parties and evidence are in a better position than the Constitutional Court in making such determinations (see Gülser Yıldırım (2) [Plenary], no. 2016/40170, 16 November 2017, § 123).

127. However, it is for the Constitutional Court’s to review whether the judicial authorities have exceeded the discretion conferred upon them. The Constitutional Court’s review must be conducted especially over the detention process and the grounds of detention order by having regard to the circumstances of the concrete case (see Erdem Gül and Can Dündar [Plenary], no. 2015/18567, 25 February 2016, § 79; and Selçuk Özdemir, § 76; and Gülser Yıldırım (2), § 124). As a matter of fact, it is set out in Article 101 § 2 of Code no. 5271 that in detention orders, evidence indicating strong suspicion of guilt, existence of grounds for detention and the proportionality of detention will be justified with concrete facts and clearly demonstrated (see Halas Aslan, § 75; and Selçuk Özdemir, § 67).

(2) Application of Principles to the Present Case

128. In the present case, it must be primarily ascertained whether the applicant’s detention had a legal basis.

 129. The applicant’s detention was ordered pursuant to Article 100 of Code no. 5271 for membership of an armed terrorist organisation, within the scope of the investigation conducted for his alleged membership of the FETÖ/PDY, the organisation behind the coup attempt.

130. The applicant also complained that he had been detained regardless of the safeguards afforded to him by virtue of his duty.

131. Article 16 § 1 of Law no. 6216 provides that opening an investigation for the offences arising from the duties of the members of the Constitutional Court, or that were allegedly committed by them during their offices, and for their personal offences and disciplinary acts, shall depend on the decision of the Plenary, and that however, in a situation of in flagrante delicto that fall under the competence of the assize court, the investigation shall be conducted as per general provisions.

132. Article 17 of the same Law provides that with the exception of cases of in flagrante delicto relating to personal offences that fall under the jurisdiction of the assize court, protective measures concerning the members of the Constitutional Court as a result of offences arising from their duties or that were allegedly committed by them during their offices and their personal offences can be decided –upon the request of the investigation board– only by the Plenary of the Court, and in cases of in flagrante delicto that fall under the competence of the assize court, the investigation shall be conducted as per general provisions.

133. Accordingly, as a rule, in order for a criminal investigation to be launched against the members of the Court for their personal offences as well as the offences arising from their duties or that were allegedly committed by them during their offices, decision of the Plenary of the Court is required. It is again for the Plenary of the Court to decide on the application of the protection measures, including detention, in terms of these offences allegedly committed by the members of the Court.

134. However, in a situation of discovery in flagrante delicto regarding personal offences falling under the competence of the assize court, the investigation shall be conducted in accordance with general provisions, and detention may be ordered by the magistrate judge that is the competent judicial authority. In such a case, the prosecution process shall be conducted by the Court of Cassation.

135. The Ankara Chief Public Prosecutor’s Office indicted the applicant for attempting to overthrow the constitutional order provided for by the Constitution or to establish a different order in its place as well as for membership of an armed terrorist organisation.

136. The challenges raised by the applicant during the interrogation that since his being a member of the Court, it was only for the Court to conduct an investigation and prosecution and that there was no situation of discovery in flagrante delicto, which constituted an exception in this regard, were dismissed by the Ankara 5^th Magistrate Judge on the grounds that membership of an armed terrorist organisation was a continuing offence and thus there was a situation of discovery in flagrante delicto and that therefore the investigation launched against the applicant was subject to general provisions.

137. The report issued by the Ankara Chief Public Prosecutor’s Office, dated 25 October 2017, referring to the fact that the risk of coup could not be completely eliminated yet, stated that in the present case there was a situation of discovery in flagrante delicto and that accordingly, an investigation was initiated against the applicant on 16 July 2016 in accordance with the general provisions.

138. The indictment issued by the Chief Public Prosecutor’s Office at the Court of Cassation stated that the offence imputed to the applicant was of continuous nature and fell under the competence of the assize court and that it was found established by the court decisions that the applicant continued committing the said offence until the date it was stopped actually and legally; and that therefore, the date on which the applicant was arrested and thus his act was stopped should be considered as the date of offence and, in other words, a situation of discovery in flagrante delicto; therefore, the investigation was conducted in accordance with general provisions.

139. Considering the assessments included in the arrest warrant, report and indictment issued in respect of the applicant, it appears that the investigation authorities concluded that the imputed offence was a personal offence and that there was a situation of discovery in flagrante delicto in respect of the applicant, and that therefore the investigation was conducted in accordance with general provisions.

140. The offence of which the applicant is accused, namely membership of an armed terrorist organisation, which is punishable under Article 314 of the Criminal Code, undoubtedly falls within the jurisdiction of the assize court, and this has not been disputed by him. Moreover, he did not contend that the alleged offence was not a personal offence, that is to say, an offence committed in connection with or during the performance of official duties. The classification of an offence (as an ordinary offence or as an offence linked to the performance of official duties) is a matter falling within the competence of the judicial authorities. The compliance of such classification with the law may also be reviewed in the context of an ordinary appeal or an appeal on points of law. Provided that there is no arbitrary interpretation – manifestly breaching the Constitution – and [entailing], as a result, [a violation of] rights and freedoms, it is primarily the task of the courts dealing with the case to interpret and apply the law, including [the question of] the classification of an offence (for the Court’s assessments in the same vein, see Mehmet Haberal, no. 2012/849, 4 December 2013, § 77; and Süleyman Bağrıyanık and Others, § 223). It cannot be concluded that the classification of the offence of which the applicant is accused as a personal offence was unjustified and arbitrary, bearing in mind the findings reached and the reasons given by the investigation authorities, and in particular, the documents concerning his pre-trial detention as well as the case-law of the 16^th Criminal Chamber of the Court of Cassation which provides that the imputed offence in question cannot be regarded as an offence relating to the applicant’s duty (for the Court’s assessment in the same vein, see Alparslan Altan [Plenary], no. 2016/15586, 11 January 2018, § 123).

141. In the present case, when the investigation authorities found that this was a case of discovery in flagrante delicto, they based that finding on the attempted coup of 15 July 2016 and the fact that the offence of which the applicant was accused, namely membership of an armed terrorist organisation, was a continuing offence.

142. According to the Court of Cassation’s consistent practice, the offence of membership of an armed terrorist organisation is a continuing offence (see in the same vein, the judgments of the 9^th Criminal Chamber of the Court of Cassation, no. E.2007/2495, K.2008/1358, 6 March 2008; no. E.2010/16588, K.2011/1626, 9 March 2011; and no. E.2014/6090, K.2014/10958, 6 November 2014; and the judgment of the 5^th Criminal Chamber of the Court of Cassation no. E.2010/8491, K.2010/7430, 12 October 2010).

143. As a matter of fact, the General Assembly of Criminal Chambers of the Court of Cassation indicated that within the scope of the investigations initiated after the coup attempt, in a case filed before the 23^rd Criminal Chamber of the İstanbul Assize Court against a suspect holding office as a public prosecutor, for membership of an armed terrorist organisation (FETÖ/PDY), violating the Constitution, and attempting, by the use of force and violence, to abolish the government of the Republic of Turkey or to prevent it, in part or in full, from fulfilling its duties, whereby it rendered a decision on resolution of the jurisdictional dispute between the trial court and the 16^th Criminal Chamber of the Court of Cassation, stated that offence the applicant was accused of was of continuous nature. Also pointing to the fact that the imputed offences fell into the category of personal offences, the General Assembly of Criminal Chambers of the Court of Cassation revoked the decision of lack of jurisdiction of the assize court (for the judgments of the General Assembly of Criminal Chambers of the Court of Cassation in the same vein, see, among others, the judgments no. E.2017/YYB-996, K.2017/403, 10 October 2017; and no. E.2017/YYB-998, K.2017/388, 10 October 2017).

144. The General Assembly of Criminal Chambers of the Court of Cassation, during the appellate review of the decision rendered by the 16^th Criminal Chamber of the Court of Cassation in its capacity as the first instance court concerning the conviction of two judges (for the decisions finding inadmissible the individual application lodged by the two judges for the alleged unlawfulness of their detention on remand as being manifestly ill-founded, see Mustafa Başer and Metin Özçelik, §§ 134-161) before the coup attempt for their membership of the armed terrorist organisation (FETÖ/PDY) as well as professional misconduct alleged to have been committed by them due to their acts related to their office, in the examination of the alleged violation of the rule “judges and prosecutors shall not be tried except for the cases of discovery in flagrante delicto, they shall not be interrogated or detained” raised by the suspects, specified that “as the current and consistent position of the Court of Cassation makes clear, regarding the offence of membership of an armed terrorist organisation, which is a continuing offence, except in cases where [its continuing nature ends with] the dissolution of the organisation or termination of membership, the continuing nature [of the offence] may be interrupted by the offender’s arrest; that the time and place of the offence must therefore be established to that end; and that for this reason, there is a situation of discovery in flagrante delicto at the time of the arrest of judges and prosecutors suspected of the offence of membership of an armed organisation” and rejected the appeals raised in this regard (see the judgment of the General Assembly of Criminal Chambers of the Court of Cassation no. E.2017/16.MD-956, K.2017/370, 26 September 2017).

145. Having regard to the Court of Cassation judgments cited above, and to the fact that the applicant was arrested on suspicion of membership of the FETÖ/PDY –deemed by the judicial authorities to constitute an armed terrorist organisation that premeditated the attempted coup– on 16 July 2016, at a time when the authorities were taking steps to defeat the coup attempt, it cannot be concluded that there was no factual and legal basis for the finding by the investigation authorities that the offence of membership of an armed terrorist organisation, of which the applicant was accused, involved a situation of discovery in flagrante delicto (for the assessment of the Court in the same vein, see Alparslan Altan, § 128).

146. In the light of the foregoing, the allegation that the applicant, a member of the Constitutional Court, was placed in pre-trial detention in a manner not complying with law and the safeguards enshrined in the Constitution and Law no. 6216 is unfounded. Accordingly, the order for the applicant’s detention had a legal basis.

147. Before examining whether the detention order –which had a legal basis– pursued a legitimate aim and was proportionate, it should be ascertained whether there are ‘facts giving rise to a strong suspicion that the offence has been committed’, this being a prerequisite for pre-trial detention.

148. In the detention order issued against the applicant, it was stated that the case file contained concrete evidence indicating the existence of strong criminal suspicion of his membership to an armed terrorist organisation. Similarly, in the decision dismissing the applicant’s challenge to detention, with reference to the information, documents and investigation reports, search and seizure reports as well as the content of the case file as a whole, it was stated that there existed concrete evidence indicating strong criminal suspicion of guilt on the part of the suspects, including the applicant.

149. In the report issued in respect of the applicant, statements of anonymous witnesses and suspects as well as content of conversations established through ByLock by the other persons were relied on as the evidence pointing to the applicant’s having committed the imputed offence (membership of an armed terrorist organisation). In addition thereto, the applicant’s cell phone signals were also cited as evidence in the indictment.

150. It has been revealed that certain issues regarding the applicant were discussed in the conversations between some persons (Ö.İ., S.E. and B.Y; S.E., B.Y. and R.Ü.) other than the applicant, via ByLock. Relying on certain evidence such as the suspects/witnesses’ statements and ByLock conversations, the investigation authorities considered that Ö.İ., who was in fact a teacher, was the civilian imam (head) within FETÖ/PDY responsible for the judicial members; that S.E. who was a rapporteur was the incumbent of the FETÖ/PDY within the Constitutional Court; and B.Y. and R.Ü. were rapporteurs who were members of the FETÖ/PDY. Among these persons, an arrest warrant has been issued in respect of Ö.İ. who has been found to have been abroad. S.E., auditor at the Court of Accounts, was dismissed from public service, and an arrest warrant was issued for his having fled while the criminal investigation conducted against him was pending. B.Y. who was a judge and R.Ü who was a public prosecutor were dismissed by the Council of Judges and Prosecutors. In addition, within the scope of the investigation launched by the Ankara Chief Public Prosecutor’s Office against these persons in relation to the crimes related to the FETÖ/PDY immediately after the coup attempt, an arrest warrant was issued in respect of B.Y.

151. In this scope, it has been understood that in the conversations between Ö.İ. and S.E., they made remarks –also mentioning, in addition to the applicant, the code name of A.A. who submitted a dissenting opinion and detained for the offences related to the FETÖ/PDY– about dissenting opinions 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. requested that A.A., another member of the Constitutional Court, would convey, to the applicant, the former’s opinion as to which candidate(s) would be supported in the election of the deputy president of the Constitutional Court.

152. It has been revealed that in the conversations between S.E. and B.Y., as regards individual applications lodged by two judges detained on the basis of charges related to the FETÖ/PDY, S.E. noted by mentioning of the applicant’s code name “Ertan” that the applicant was in the board to examine the application; and that as the applicant wanted to address a question, certain rapporteurs who were reported to have connection with the FETÖ/PDY –and whose code names were mentioned during the conversation− were advised to visit him. In this respect, B.Y. affirmatively replied S.E.’s message. It has been further observed that the conversations between S.E. and R.Ü. were also on the same topic.

153. In addition, R.Ü., who held office as a rapporteur at the Constitutional Court and was also accused of membership of the FETÖ/PDY, 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 organisation, 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 FETÖ/PDY’s incumbent within the Constitutional Court– on how he should act; that S.E. (according to his own words) contacted the civil person who was the imam (head) 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 “Ertan” within the FETÖ/PDY. R.Ü. also noted that as instructed by the FETÖ/PDY, the applicant expressed dissenting opinion in the application related to the judges; and that the rapporteurs who were members of the FETÖ/PDY assisted the applicant in drawing up reasoning of his dissenting opinion.

154. Besides, one of the anonymous witnesses (Kitapçı) holding office at the Constitutional Court as a rapporteur judge stated that he reached the conclusion that the applicant, with whom he previously got acquainted, had told that he would give a reference in favour of him in order for him to be able to be appointed as a rapporteur judge, but that however, during the appointment process, the President of the Constitutional Court would disregard his reference and that for this reason, he might be called as “cemaatçi” even if he were appointed, and therefore he stated that the applicant was a member of the FETÖ/PDY given also his social relations. The other rapporteur judge (Defne) also indicated that the applicant was a member of the FETÖ/PDY.

155. Lastly, it has been revealed that on various dates the applicant’s cell phone signals were received from the same base station with those of certain persons against whom an investigation was conducted for their alleged position within the FETÖ/PDY as “civilian imams”, and that on various dates these civilian imams met numerous judges from high courts who were dismissed from office for having connection with the FETÖ/PDY.

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

157. In addition, it should be considered whether the applicant’s pre-trial detention, for which the pre-requisite of strong suspicion of guilt existed, pursued a legitimate aim. The general conditions at the material time when the detention order was issued should not be disregarded.

158. Considering the fear atmosphere created by the severe incidents that occurred during the coup attempt, the complexity of the structure of the FETÖ/PDY that is regarded as the perpetrator of the coup attempt and the danger posed by this organisation (see Aydın Yavuz and Others, §§ 15-19, 26), orchestrated criminal or violent acts committed by thousands of FETÖ/PDY members in an organised manner, the necessity to immediately launch investigations against thousands of people including public officials although they might not be directly involved in the coup attempt, the preventive measures other than detention may not be sufficient for ensuring the gathering of evidence properly and for conducting the investigations in an effective manner (For the Court’s assessments in the same vein, see Aydın Yavuz and Others, § 271; Selçuk Özdemir, § 78; and Alparslan Altan, § 140).

159. The possibility of escape of the persons who are involved in the coup attempt or who are in connection with FETÖ/PDY─ the terror organisation behind the coup attempt─ by taking advantage of the turmoil in its aftermath, and the possibility of tampering with evidence are more likely when compared to the crimes committed during the ordinary times. Besides, the fact that the FETÖ/PDY has organised in almost all public institutions and organisations within the country, that it has been carrying out activities in more than one hundred and fifty countries, and that it has many important international alliances will greatly facilitate the escape and residence abroad of the persons who are subject to investigation with respect to this organisation (for the Court’s assessments in the same vein, see Aydın Yavuz and Others, § 272; and Selçuk Özdemir, § 79). In addition, it is undeniable that it will be easier for the applicant, who is a justice at the Constitutional Court, to influence the evidence –given his position– when compared to others (see Alparslan Altan, § 141).

160. Membership of an armed terrorist organisation for which the applicant was detained on remand is among the crimes to be punished severely within the Turkish legal system, and the severity of the punishment prescribed by the law for the imputed offence points to the risk of fleeing (for the Court’s assessments in the same vein, see Hüseyin Burçak, no. 2014/474, 3 February 2016, § 61; Devran Duran [Plenary], no. 2014/10405, 25 May 2017, § 66). In addition, the imputed offence is among the crimes set forth in Article 100 § 3 of Law no. 5271 and to be punished by detention (see Gülser Yıldırım (2), § 148).

161. In the present case, ordering the applicant’s detention, the Ankara 5^th Magistrate Judge took into consideration the risk of fleeing and tampering with evidence, inadequacy of conditional bail and proportionality of detention as a measure to the imputed offence. The Ankara 6^th Magistrate Judge dismissed, relying on the same grounds, the applicant’s challenge against the detention order.

162. Accordingly, considering the general circumstances at the time when the detention order was issued, the aforementioned particular circumstances of the case, as well as the content of the decisions rendered by the Ankara 5^th and 6^th Magistrate Judges, it cannot be said that the grounds for the detention, such as the risk of fleeing and tampering with the evidence, lacked factual bases (for the Court’s assessments in the same vein, see Alparslan Altan, § 144).

163. In addition, it should also be determined whether the applicant’s detention on remand was proportionate. In the assessment of the proportionality of such a measure, all particular circumstances of the case should be taken into consideration (see Gülser Yıldırım (2), § 151).

164. First of all, to investigate terrorist crimes poses serious difficulties for public authorities. Therefore, the right to personal liberty and security should not be interpreted in a way that would make it extremely difficult for the judicial authorities and security officers to effectively fight against crimes –especially the organised ones– and criminality (for the Court’s assessments in the same vein, see Süleyman Bağrıyanık and Others, § 214; and Devran Duran, § 64). Considering the scope and nature of the investigations related to the FETÖ/PDY and the characteristics of the said organisation (i.e. secrecy, cell-type structuring, being organised in all institutions, attributing holiness to itself, acting on the basis of obedience and devotion), even if not directly related to the coup attempt, it is clear that these investigations are much more difficult and complex than other criminal investigations (see Aydın Yavuz and Others, § 350).

165. In addition, given the fact that the applicant was taken into custody during the suppression of the coup attempt and was subsequently detained, there is no reason to conclude that during the investigation process the applicant’s detention was not "necessary" as an element of the principle of proportionality.

166. Regard being had to the aforementioned circumstances of the instant case, it cannot be said that it was arbitrary and unfounded for the Ankara 5^th and 6^th Magistrate Judges to conclude that the applicant’s detention was a proportionate measure, given the severity of the punishment prescribed for the alleged offence as well as the nature and gravity of the imputed act and that conditional bail would be insufficient.

167. For the reasons explained above, as it is clear that there is no violation as regards the alleged unlawfulness of the applicant’s detention on remand, this part of the application must be declared inadmissible for being manifestly ill-founded.

168. Accordingly, since it has been concluded that the interference with the applicant’s right to personal liberty and security through detention was not in breach of the guarantees enshrined in the Constitution (Articles 13 and 19), no further examination is required with respect to the criteria provided in Article 15 of the Constitution.

2. Alleged Ineffectiveness of Legal Remedies against the Applicant’s Detention on Remand

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

169. The applicant maintained that his challenge against the detention order rendered by the Ankara 5^th Magistrate Judge was dismissed by another magistrate judge (Ankara 6^th Magistrate Judge) within a closed circuit system and that the said judicial authority lacked independence, impartiality and effectiveness. In this regard, the applicant claimed that his right to an effective legal remedy against his detention or remand had been violated.

170. The Ministry, in its observations, made no explanation concerning the applicant’s allegations in this regard.

b. The Court’s Assessment

i. Applicability

171. The applicant was detained on remand by the Ankara 5^th Magistrate Judge within the scope of the investigation conducted into his alleged membership of the FETÖ/PDY, which was stated to be the structure behind the coup attempt of 15 July that was the main reason for declaration of a state of emergency in Turkey and which was described as an armed terrorist organisation, and his subsequent challenge against the relevant decision of the magistrate judge was dismissed by the Ankara 6^th Magistrate Judge. Therefore, the examination into the alleged lack of independence, impartiality and effectiveness of the latter will be carried out within the scope of Article 15 of the Constitution. During this examination, it will first be determined whether the relevant appellate authority operated in breach of the guarantees specified in the relevant articles of the Constitution, notably Article 19 thereof.

ii. Admissibility

172. It is explicitly laid down in Article 9 of the Constitution that judicial power shall be exercised by independent and impartial courts. In the same vein, Article 138 thereof explains how the independence of the courts should be interpreted. Accordingly, “No organ, authority, office or individual may give orders or instructions to courts or judges relating to the exercise of judicial power, send them circulars, or make recommendations or suggestions.” Independence refers to the independence of the court in resolving a dispute from the legislature, the executive, the parties to the case, the environment and other judicial bodies, and its not being influenced by them (see the Court’s judgment no. E.2014/164, K.2015/12, 14 January 2015).

173. In determining whether a court is independent of the administration and the parties to the case, the manner in which its members are appointed and their term of office, the existence of guarantees against external pressure, and whether the court displays an appearance of independence are important (see Yaşasın Aslan, no. 2013/1134, 16 May 2013, § 28).

174. Although the impartiality of the courts is not explicitly mentioned in Article 36 of the Constitution, the right to have one’s case heard by an impartial tribunal is an implicit element of the right to a fair trial in accordance with the Constitutional Court's case-law. As a matter of fact, the phrase "and impartial" was added to Article 9 of the Constitution after the phrase "independent", by Article 1 of the Law no. 6771 of 21 January 2017; and thus, the text of the relevant provision has become "Judicial power shall be exercised by independent and impartial courts on behalf of the Turkish Nation”. In addition, considering that the impartiality and independence of the courts are two complementary elements; pursuant to the principle of the integrity of the Constitution, it is clear that Articles 138, 139 and 140 of the Constitution should also be taken into account in the assessment of the right to be heard by an impartial tribunal (see Tahir Gökatalay, no. 2013/1780, 20 March 2014, § 60; and Alparslan Altan, § 157).

175. The concept of impartiality of the courts is explained through the institutional structure of the court as well as the attitude of the judge dealing with the case. First of all, no impression of the lack of impartiality of legal and administrative regulations regarding the establishment and structuring of the courts should be created. Essentially, institutional impartiality is an issue related to the independence of the courts. For impartiality, first the precondition of independence must be fulfilled and, in addition, there should not be an institutional structure giving the impression of being a party (see the Court’s judgment no. E.2014/164, K.2015/12, 14 January 2015).

176. The second element referring to the impartiality of the courts is related to the subjective attitude of the judges towards the case to be heard. The judge who will hear the case must be equal, impartial and unbiased towards the parties of the case and decide on the basis of his personal conviction within the framework of the rules of law under no suggestion or pressure. The attitudes to the contrary shall be subject to sanctions in the field of discipline and criminal law by virtue of the legal order (see the Court’s judgment no. E.2014/164, K.2015/12, 14 January 2015).

177. It is understood that the magistrate judges, based on a general legal regulation and as a result of their appointment by the High Council of Judges and Prosecutors, perform the duties assigned by the law, including making decisions regarding detention during the investigation stage and evaluating the challenges against these decisions. It is known that the magistrate judges, which are claimed not to be independent and impartial, may reject the demands of the public prosecutor and make decisions in favour of the suspects. In this respect, the relevant judges cannot be said to lack independence and impartiality, relying on some abstract assumptions (for the Court’s assessments in the same vein, see Hikmet Kopar and Others [Plenary], no. 2014/14061, 8 April 2015, § 114; Hidayet Karaca [Plenary], no. 2015/144, 14 July 2015, § 78; and Mehmet Baransu (2), no. 2015/7231, 17 May 2016, §§ 64-78).

178. As a matter of fact, the Court dismissed the request for the annulment of the provision concerning the formation of magistrate judges, on the grounds; that magistrate judges are appointed by the High Council of Judges and Prosecutors, like all other judges, and therefore they enjoy the security of tenure of judges stipulated in Article 139 of the Constitution; that as in all other courts, they are organised in accordance with the principles of the independence of the courts and the security of tenure of judges; that there is no element leading to the conclusion that they cannot act impartial in their organisation and functioning; and that there are also procedural rules preventing the judge from hearing the case where it is revealed with concrete, objective and convincing evidence that he has failed to act impartial (see the Court’s judgment no. E.2014/164, K.2015/12, 14 January 2015).

179. In addition, pursuant to Article 268 § 3 (a) of Law no. 5271, review of the challenges against the decisions of the magistrate judges shall be carried out by the subsequent numbered magistrate judge if there are several magistrate judges in the same district of jurisdiction.

180. In view of the explanations above concerning the allegation that the magistrate judges acted in breach of the principles of impartiality and independence of judge, the Court did not find justified the applicant’s allegation that the authority assigned to review his challenge to the detention order was the magistrate judge’s offices which were not in the capacity of an independent and impartial tribunal, and that due to this closed-circuit mechanism, there was no remedy whereby detention orders may be challenged effectively (for the Court’s assessments in the same vein, see Hikmet Kopar and Others, § 133; and Mehmet Baransu (2), § 95).

181. The Court previously examined the request for annulment of the legal provision which set out that the authority to review the challenges to the orders issued by the magistrate judge’s offices was still held by these offices. Accordingly, the Court dismissed the request on the grounds that there was no constitutional norm requiring the review of the challenges to the orders of the magistrate judge’s offices by a higher or another court; that courts titled with the name of a province or district or having more than one “chamber” due to the workload cannot be considered to be the same tribunal in respect of the judicial activities performed and examination of appellate requests; that the magistrate judge’s offices designated as the authority to receive and examine the challenges pursuant to Articles 268 § 3, titled appeal remedy, of Law no. 5271 were entitled to review the challenged orders and adjudicate on the merits of the case; and that it was therefore an effective appeal remedy (see the Court’s judgment no. E.2014/164, K.2015/12, 14 January 2015).

182. For these reasons, as it is clear that there has been no violation with regard to the applicant’s allegations that he could not effectively challenge the detention order issued against him, the Court has found this part of the application inadmissible for being manifestly ill-founded.

183. Accordingly, it is seen that the review made by the magistrate judge of the challenge against the detention order issued against the applicant was not in breach of the guarantees enshrined in the Constitution, especially in Articles 19, 138, 139 and 140 thereof; therefore, no separate examination is needed under the criteria laid down in Article 15 of the Constitution

3. Alleged Unreasonable Length of the Applicant’s Detention on Remand

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

183. The applicant claimed that his right to personal liberty and security had been violated, stating; that his requests for release had been rejected; that the decisions on the continuation of his detention on remand lacked grounds; that the reasons for his detention on remand were not explained on the basis of concrete facts; that he was not considered individually and the authorities failed to demonstrate the reasons why conditional bail would be an insufficient measure; that his challenges against the detention were rejected with no justification; that the authorities also failed to conduct a rigorous investigation; and that therefore his detention on remand without any justification –just on the basis of stereotyped grounds– exceeded the reasonable period.

185. The Ministry, in its observations, referring to the judgments of the ECHR and pointing to the density of the workload of the investigation authorities after the coup attempt as well as to the nature of the imputed offence, specified that the length of the period during which the applicant was detained on remand was reasonable. The Ministry considers that the applicant's allegations in this part are manifestly ill-founded.

b. The Court’s Assessment

186. Article 19 § 7 of the Constitution provides as follows:

"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 ensure the presence of the person at the trial proceedings or the execution of the court sentence."

187. The applicants’ allegations in this part should be examined within the scope of the right to personal liberty and security safeguarded by Article 19 § 7 of the Constitution.

i. Applicability

188. The imputed offence resulting in the applicant’s detention on remand concerned his alleged membership of the FETÖ/PDY which was stated to be the structure behind the coup attempt of 15 July that was the main reason for declaration of a state of emergency in Turkey and which was described as an armed terrorist organisation. The state of emergency was in force during the period when the applicant was detained on remand. In this respect, whether the length of the applicant’s detention exceeded the reasonable period is to be examined under Article 15 of the Constitution. During this examination, it will be first determined whether the length of the applicant’s detention was in breach of the safeguards enshrined in Articles 13 and 19 and the other Articles of the Constitution.

ii. Admissibility

189. This part of the application must be declared admissible for not being manifestly ill-founded and there being no other grounds for its inadmissibility.

iii. Merits

(1) General Principles

190. According to Article 19 § 7 of the Constitution, persons detained within the scope of a criminal investigation shall have the right to request trial within a reasonable time and to the right to be released during investigation or prosecution process. “The right to request trial within a reasonable time” and “the right to request to be released” safeguarded in the same paragraph must not be regarded as an alternative to each other but complementary (see Murat Narman, § 60; and Halas Aslan, § 66).

191. In accordance with “the right to request to be released” safeguarded in Article 19 of the Constitution, persons detained within the scope of a criminal investigation or prosecution shall have the right to request from the relevant judicial authorities to be released. As a reflection of this right, it is provided in Article 104 § 1 of Law no. 5271 that the suspect or the accused is entitled to request to be released at any stage of the investigation and the prosecution proceedings. It is also set forth in Article 108 of the same Law that detention must be examined ex officio during the investigation and prosecution proceedings within certain time intervals. It is also a requirement of Article 19 § 7 of the Constitution that the judicial authorities must explain the legal grounds of detention during the examinations carried out either ex officio or upon the request of the person to be released at any stage of detention (see Halas Aslan, § 67).

192. It is also stated in the relevant Article that detained persons are entitled to request a “trial within a reasonable time”. In general, not concluding a trial within a reasonable time falls under the scope of the right to a fair trial safeguarded in Article 36 of the Constitution. According to Article 19 of the Constitution in which the guarantees as to the restriction of the individuals’ physical liberty are set out, it is required in the first place that the length of detention must not exceed the reasonable time. The relevant Article also points out that detention pending trial must be concluded within a reasonable time. A person who is detained pending trial has much more interest, by its very nature, in the reasonable length of the proceedings when compared to others. In this connection, the “right to be tried within a reasonable time” of a detained person, which is set forth in Article 19 § 7 of the Constitution, provides a greater protection than the right to be tried within a reasonable time within the scope of the right to a fair trial guaranteed in Article 36 of the Constitution (see Halas Aslan, §§ 68, 69).

193. Accordingly, the investigation and prosecution proceedings carried out while the individual is being held in detention must be concluded swiftly. In this respect, all public authorities, being in the first place the public prosecutors’ offices and the courts, must act in due diligence to conclude swiftly the investigation/prosecution proceedings carried out while the suspect/accused is being held in detention, in compliance with the guarantees arising from the right to a fair trial. The obligation to act in due diligence is also necessary for not being arbitrary of the continuation of a person’s detention pending trial, and thereby maintaining the legitimate aim in the interference with the personal liberty. In this respect, the required due care concerning the investigation/prosecution proceedings in respect of detained persons is guaranteed by Article 19 § 7 of the Constitution (see Halas Aslan, §§ 70, 71).

194. Thus, the question whether the length of detention is reasonable or not cannot be addressed under general principles. This examination must be made according to the particular circumstances of each case (see Murat Narman, § 61).

195. In the evaluation of the reasonable period, the beginning of the period is the date on which the applicant was arrested and taken into custody for the first time; however, in cases where the applicant was directly detained, the date of detention in question is the beginning of the period. The end of the period is, as a rule, the date on which the person is released or the date on which the judgment is rendered by the first instance court (see Murat Narman, § 66).

196. Whether detention during an investigation or prosecution process has exceeded the reasonable period may be determined firstly on the basis of the grounds for the detention orders. The existence of a strong indication of guilt, as a prerequisite for detention, the grounds for detention, and the proportionality of the detention must be set forth in the justifications of detention orders (see Halas Aslan, §§ 74, 75).

197. Strong indication of guilt is a prerequisite for detention and must exist at all stages of detention. For an initial detention, even though it may not always be possible to present all evidence indicating that there is a strong indication of guilt (see Mustafa Ali Balbay, § 73), the evidence that will substantiate or eliminate the suspicion of guilt will be collected in the later stages of investigation/prosecution. For this reason, in the decisions on the continuation of detention after the passage of a certain period of time, the existence of a strong suspicion of having committed an offence must be explained with concrete facts. Where the facts showing that there is a strong suspicion of the suspects’ having committed the imputed offence have disappeared at any stage of detention, then the detention cannot be said to pursue a legitimate aim (see Halas Aslan, § 76).

198. Although for an initial detention, it may not always be possible, by the very nature of the case, to indicate concretely the grounds for detention set forth in the Constitution and the Law (see Selçuk Özdemir, § 68), as the evidence is collected during investigation/prosecution processes, the possibility to tamper with evidence disappears or gets difficult. Furthermore, it can also be said that the risk of fleeing of the individual diminishes since the detention term shall be deducted from the sentence to be imposed at the end of the proceedings. For these reasons, in the decisions on the continuation of detention exceeding a certain period of time, it is not sufficient to indicate the abstract grounds for detention (see Hanefi Avcı, no. 2013/2814, 18 June 2014, § 70).

199. Lastly, in the decisions on the continuation of detention, the facts substantiating the proportionality of detention must be put forth, as well as it must be demonstrated why the measures of conditional bail that have less effects on fundamental rights and freedoms compared to detention have remained insufficient (see Halas Aslan, § 79). In addition, as the detention continues, the burden imposed on the individual increases whereas the legitimate aim of the detention weakens. Therefore, the general circumstances of the case as well as the particular situation of the detainee must be taken into account in the decisions on the continuation of detention, and, in this sense, the grounds for detention must be personalized (see Hanefi Avcı, § 84).

200. In the individual applications lodged on the basis of the complaints that the detention has been prolonged or exceeded a reasonable period, it is the duty of the Constitutional Court to examine the grounds explained in the decisions on detention and continuation of detention rendered by the inferior courts and to examine whether these grounds are relevant and sufficient in the particular circumstances of the case in terms of the existence of strong indication of guilt as well as the grounds for detention and the proportionality of detention, also considering if the required due diligence ─explained above─ is respected during investigation/prosecution. If such review leads to conclusion that the grounds for detention are not relevant and sufficient to justify the legal grounds for the restriction of the applicants’ liberty or that investigation/prosecution processes are prolonged due to the lack of due diligence on the part of public authorities, it shall be found that length of detention has exceeded the reasonable period (see Halas Aslan, §§ 82, 83).

(2) Application of Principles to the Present Case

201. The applicant was taken into custody during the suppression of the coup attempt on 16 July 2016 and was detained on remand by the Ankara 5^th Magistrate Judge on 20 July 2016 for membership of an armed terrorist organisation. On the date of examination of the individual application, the applicant has still been detained on remand. Accordingly, the applicant has been detained for approximately 1 year and 9 months.

202. The applicant was detained within the scope of an investigation conducted for his allegedly having taken part in the structuring of the FETÖ/PDY, which was stated by the public authorities and judicial authorities to be the structure behind the coup attempt, within the supreme courts, as well as for his allegedly having acted in accordance with the instructions he had received from the heads of the organisation within the hierarchy of the organisation. It was clearly pointed out by the magistrate judges and the criminal chambers of the Court of Cassation that there was a strong suspicion of the applicant’s having committed the imputed offence. In the examination of the alleged unlawfulness of the applicant’s detention, the Court has concluded that there are strong indications that the applicants have committed the imputed offence. Considering the content of the evidence referred to in the decisions on detention and continuation of detention with respect to the applicant, it has been concluded that the relevant court decisions were relevant and sufficient in terms of the existence of the strong suspicion of guilt, which is a prerequisite for detention.

203. In addition, in the examination of the explanations regarding the grounds for detention and the proportionality included in the reasoning of the decisions of the magistrate judges and the criminal chambers of the Court of Cassation for the continuation of detention, it can be seen that the relevant decisions were based on the factual and legal grounds such as the risk of fleeing, the risk of tampering with evidence, the imputed offence’s being among the offences regarding which the ground for detention may be deemed to exist ipso facto under Article 100 § 3 of Law no. 5271, the proportionality of detention and the insufficiency of conditional bail as a measure.

204. The Turkish judicial authorities have acknowledged that the FETÖ/PDY has been organised in parallel to the current administrative system with a view to taking over the constitutional institutions of the State for re-shaping the State, society and citizens in accordance with its ideology and for managing the economy and social and political life through an oligarchic group (for some of the relevant judgments of the Court, see Selçuk Özdemir, §§ 20, 21; and Alparslan Altan, § 10).

205. While the FETÖ/PDY carried out legal activities in different social, cultural and economic areas, notably in terms of education and religion –especially in the public sphere–, it was an illegal structure sometimes hidden within these legal organisations and was sometimes completely different from the legal structure. FETÖ/PDY was illegally organised in almost all institutions and organisations within the country, including the judicial bodies. The main characteristics of this organisation were that it was made up of a hierarchical and cell-type structure; it acted in full obedience and devotion; it adopted a mentality attributing holiness to itself; and it relied on privacy. Loyalty of the public officers who were members of the FETÖ/PDY was directed to the structure rather than the State. Therefore, these persons were preferring the interests of the structure over the interests of the State and acted in line with the aims of the structure. A basic characteristic of the FETÖ/PDY’s activities in the public institutions and organisations was that a public activity was apparently performed by a public officer competent to carry out this duty; however, this activity was indeed performed not with the relevant public officer’s own will but with the will of his hierarchical superior (“abi/imam”) to whom he was affiliated, apart from the hierarchy in the public institution (see Aydın Yavuz and Others, § 26).

206. It is seen that the organisation of the FETÖ/PDY within judicial bodies was also similar in that the superiors within the organisation conveyed with great confidentiality the suggestions and instructions to design all areas of the lives of judges and public prosecutors, who were member to the FETÖ/PDY, from how their social attitudes and behaviours would be to how they would decide while performing their duties, as well as from their political preferences to who they would vote for in the institutional elections.

207. Considering the nature of the imputed offence, the aforementioned organisational form and functioning of the terrorist organisation (FETÖ/PDY) of which the applicant was claimed to have been a member, as well as the circumstances of the case subject of the investigation/prosecution processes as a whole, it has been concluded that the grounds for the continuation of detention diligently demonstrated that the applicant’s continued detention was lawful and thus the relevant grounds were relevant and sufficient as regards the length of detention.

208. In addition, the investigation authorities also conducted investigations, with the start of the coup attempt, into the activities related to the coup attempt or into the organisation and activities of the FETÖ/PDY in the public institutions, including the judicial bodies, as well as different areas such as education, health, trade, civil society and media, and many persons were taken into custody and detained within the scope of these investigations. It should be borne in mind that such investigations are much more difficult and complex than the other types of criminal investigations (see Aydın Yavuz and Others, § 52).

209. In this scope, within the scope of the investigation into the organisation of the FETÖ/PDY in supreme courts, inquiries were made regarding the identification of the civilian leaders (“imams”) responsible for these courts and the relationship between the judicial members –including the applicant– who were considered to have been member to the organisation and the mentioned civilian leaders. As such, the statements of some of the rapporteur judges who had taken office at the Constitutional Court were taken as suspects and witnesses; the contents of their conversations through “ByLock” program found to have been used between the members of the FETÖ/PDY for communication (see Aydın Yavuz and Others, § 106) were determined; and whether the phone signals of many supreme court members including the applicant, who were considered to have had links with the FETÖ/PDY, other judicial members and the leaders within the FETÖ/PDY (“imams”) who had been responsible for the judiciary, matched have been investigated.

210. At the end of the investigation conducted by the Ankara Chief Public Prosecutor’s Office against the members of the supreme courts, motions were issued in order for criminal cases to be filed before the relevant criminal chamber of the Court of Cassation, and the investigation files were sent to the Chief Public Prosecutor’s Office at the Court of Cassation. The bill of indictment issued by the latter against the applicant was accepted by the 9^th Criminal Chamber of the Court of Cassation, thereby initiating the prosecution process.

211. Regard being had to the characteristics of the organization of which the applicant was an alleged member; its extent within the judiciary and nature of its activities; the difficulty in conducting such investigations; the fact that findings obtained at every stage may require further inquiries; the necessity, inherent in the investigation conducted against the applicant, of establishing and assessing contents of conversations ascertained, through various means, by each of the other persons considered to have connection with the organization; and existence of evidence, which was hard to obtain, such as matching cell phone signals of many persons covering a long period of time, it has been concluded that due diligence was exercised in conducting both the investigation and prosecution processes.

212. Besides, given the fact that the grounds in the decisions ordering continuation of the applicant’s detention were relevant and sufficient as legitimate reasons for deprivation of the applicant’s liberty and that due diligence was shown during the investigation/prosecution processes, the applicant’s detention period of about one year and nine months has been found reasonable.

213. Accordingly, the Court has found no violation of the right to personal liberty and security safeguarded by Article 19 § 7 of the Constitution.

214. Consequently, as it is seen that the interference with the applicant’s right to personal liberty and security by the continuation of his detention on remand was not contrary to the safeguards provided in the Constitution (Articles 13 and 19), no further examination is required in accordance with the criteria laid down in Article 15 of the Constitution.

4. Alleged Review of the Applicant’s Detention on Remand without His Appearance before the Judge/Court

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

215. The applicant claimed that his right to a fair trial had been violated, stating that his detention was reviewed without holding hearings and his challenges against his detention on remand were also dismissed over the file.

216. The Ministry, in its observations, specified that the reviews of detention during the investigation process were conducted by either magistrate judges or the relevant criminal chamber of the Court of Cassation over the file in accordance with Article 3 of Decree Law no. 668. The Ministry considered, referring to the Court’s judgment of Aydın Yavuz and Others, that in the particular circumstances of the state of emergency period, it had been lawful to conduct the reviews of the applicant’s detention on remand over the file.

b. The Court’s Assessment

217. Article 19 § 8 of the Constitution reads as follows:

 “Persons whose liberties are restricted for any reason are entitled to apply to the competent judicial authority for speedy conclusion of proceedings regarding their situation and for their immediate release if the restriction imposed upon them is not lawful”.

218. The Constitutional Court is not bound by the legal qualification of the facts by the applicants and it makes such assessment itself (see Tahir Canan, § 16). In this respect, the Court found it appropriate to examine the applicant’s complaints under this heading within the scope of the right to personal liberty and security enshrined in Article 19 § 8 of the Constitution.

i. Applicability

219. The charges underlying the applicant’s detention on remand was related to his alleged membership of the FETÖ/PDY which was stated to be the structure behind the coup attempt of 15 July that was the main reason for declaration of a state of emergency in Turkey and which was described as an armed terrorist organisation. The state of emergency period continued while the applicant was detained on remand. In this respect, the effect of the review of the applicant’s detention on remand without his appearance before the judge/court on the right to personal liberty and security will be examined under Article 15 of the Constitution. Within this scope, it will first be established whether the manner of the said review were contrary to the guarantees provided in Article 19 of the Constitution.

ii. Admissibility

189. This part of the application must be declared admissible for not being manifestly ill-founded and there being no other grounds for its inadmissibility.

iii. Merits

(1) General Principles

221. Pursuant to Article 19 § 8 of the Constitution, an individual who has been deprived of his liberty is entitled to apply to the competent judicial authority for speedy conclusion of the proceedings regarding his situation and for his immediate release if the restriction imposed upon him is not lawful (see Mehmet Haberal, § 122).

222. As an application for release must be lodged with the competent judicial authority, this right can only be enjoyed upon a request. Accordingly, the right to apply to the competent judicial authority is a guarantee for those deprived of their liberty due to criminal charge, and this guarantee must be afforded not only in terms of the request for release but it must also be afforded during the examination of the objections against detention, the continuation of detention and dismissal of the request for release (see Aydın Yavuz and Others, § 328).

223. However, during an ex officio review of detention of the suspect or the accused without a request under Article 108 of Law no. 5271, no assessment shall be made within the scope of these persons’ right to apply to the competent judicial authority. Therefore, such reviews do not fall into the scope of Article 19 § 8 of the Constitution (see Firas Aslan and Hebat Aslan, no. 2012/1158, 21 November 2013, § 32; and Faik Özgür Erol and Others, no. 2013/6160, 2 December 2015 § 24).

224. As it is set forth in Article 19 § 8 of the Constitution that the requests for release must be lodged with a judicial authority, it is, by its very nature, a judicial review. In this judicial review, safeguards of the right to a fair trial that is compatible with the nature and conditions of detention must be available. In this respect, the principles of “equality of arms” and “adversarial proceedings” must be respected in reviewing the continuation of detention or the request to be released (see Hikmet Yayğın, no. 2013/1279, 30 December 2014, §§ 29, 30).

225. The principle of equality of arms means that parties of a legal action shall be subject to the same conditions in terms of procedural rights and that both parties shall be afforded equal opportunities to submit allegations and arguments without any favour to any. The principle of adversarial proceedings entails affording of the opportunity to the parties to have information about the case-file and to comment in respect thereof and therefore active involvement of the parties in the proceedings in its entirety (see Bülent Karataş, no. 2013/6428, 26 June 2014, § 70, 71).

226. One of the fundamental safeguards deriving from Article 19 § 8 is the right to request for an effective review of detention before a judge. Indeed, a very high importance must be attached to this safeguard considering that this is the primary legal means for a person deprived of his liberty to effectively challenge his or her detention. In this way, a detained person is given the opportunity to discuss the reasons led to his/her detention and the assessment of the investigation authorities in person before a judge or a court. Therefore, a detained person should be able to exercise this right by being heard before a judge at certain reasonable intervals (see Firas Aslan and Hebat Aslan, § 66; Süleyman Bağrıyanık and others, § 267; and Aydın Yavuz and Others, § 333).

227. As a reflection of this safeguard, Article 105 of Law no. 5271 sets out that while deciding on the suspect’s or the accused’s request for release at a hearing during the investigation or prosecution phases, the suspect, the accused or the defence counsel and the public prosecutor shall be heard. Article 108 thereof also envisages that in the assessment of the question of continuation of the detention, the suspect or his defence counsel is to be heard. Moreover, decisions on detention that is rendered either ex officio or upon request within the scope of Article 101 § 5 or Article 267 may be challenged before a court (see Süleyman Bağrıyanık and Others, § 269). As regards the review of detention orders, Article 271 sets forth that the challenge shall be in principle concluded without a hearing; however, if deemed necessary, the public prosecutor and subsequently the defence counsel may be heard. Accordingly, in case that a review of detention or objection to detention is made through a hearing, the suspect, the accused or the defence counsel must be heard (see Aydın Yavuz and Others, § 334).

228. However, holding a hearing for reviewing objections to detention orders or assessing every request for release may lead to congestion of the criminal justice system. Therefore, safeguards enshrined in the Constitution as to the review procedure do not necessitate a hearing for review of every single objection to detention unless the special circumstances require otherwise.

 (2) Application of Principles to the Present Case

229. On 20 July 2016, the applicant was heard by the Ankara 5^th Magistrate Judge where the applicant, together with his defence counsel, orally submitted his defence arguments with respect to the accusations brought against him and to the detention request of the prosecutor’s office.

230. It appears that following the applicant’s detention on remand, the reviews of his detention ─ex officio or upon the applicants’ request─ were conducted without holding a hearing and that the applicant did not appear before a judge/court during this period. The applicant’s objections to the detention orders and to the continuation of detention were concluded by the competent authorities over the case-file. Nor do the observations submitted by the Ministry include any information indicating that at this stage the reviews of detention were carried out by holding a hearing.

231. Accordingly, the applicant’s continued detention was ordered by the decisions rendered over the case-file without holding a hearing since 20 July 2016, the date on which the applicant was detained on remand. During this period, the applicant did not have the opportunity to orally submit, before a judge/court, his claims as to the content or qualification of evidence forming the basis for his detention, his counter-statements as to the considerations and assessments either in favour of or against him as well as requests for his release. Therefore, the applicant’s continued detention for a period of 21 months without a hearing was not in conformity with the principles of “equality of arms” and “adversarial proceedings” in an ordinary time (for the Court’s assessments in the same vein, see (see Aydın Yavuz and Others, § 341).

232. As a matter of fact, in its previous judgments, the Constitutional Court held that the continuation of the applicant’s detention for 7 months and 2 days (see Mehmet Halim Oral, no. 2012/1221, 16 October 2014, § 53; and Ferit Çelik, no. 2012/1220, 10 December 2014, § 53) and for 3 months and 17 days (see Ulaş Kaya and Adnan Ataman, no. 2013/4128, 18 November 2015, § 61) as a result of the examinations carried out over the case-file without holding a hearing was in breach of Article 19 § 8 of the Constitution.

233. For the reasons explained above, ordering the continuation of the applicant’s detention for 21 months through examinations carried out over the case-file and his not having been brought before a judge/court were in breach of the safeguards set out in Article 19 § 8 of the Constitution. It is therefore necessary to examine whether this situation was legitimate within the scope of Article 15 of the Constitution which entails the suspension and the restriction of exercise of the fundamental rights and freedoms in times of emergency.

iv. Application of Article 15 of the Constitution

234. According to Article 15 of the Constitution, in times of war, mobilization, martial law or a state of emergency, the exercise of fundamental rights and freedoms may be partially or entirely suspended or measures which are contrary to the guarantees embodied in the Constitution may be taken. However, Article 15 of the Constitution does not entrust the public authorities with an unlimited power in this respect. The measures which are contrary to the guarantees embodied in other provisions of the Constitution must not infringe upon the rights and freedoms provided in Article 15 § 2 of the Constitution, must not be contrary to the obligations stemming from the international law and must be within the extent required by the exigencies of the situation. The examination to be made by the Court according to Article 15 of the Constitution will be limited to these criteria. The Court has set out the procedures and principles of this review (see Aydın Yavuz and Others, §§ 192-211, 344).

235. The right to liberty and security is not one of the core rights provided in Article 15 § 2 of the Constitution as inviolable even when emergency administration procedures such as war, mobilization, martial law or a state of emergency are in force. It is therefore possible in times of emergency to impose measures with respect to this right contrary to the safeguards enshrined in the Constitution (see Aydın Yavuz and Others, §§ 196, 345).

236. Nor is this right among the non-derogable core rights in the international conventions to which Turkey is a party, notably Article 4 § 2 of the International Covenant on Civil and Political Rights (“the ICCPR”) and Article 15 § 2 of the European Convention on Human Rights (“the ECHR”), as well as the additional protocols thereto. Furthermore, it has not been found established that the interference with the applicant’s right to liberty and security was in breach of any obligation (any safeguard continued to be under protection in times of emergency) stemming from the international law (see Aydın Yavuz and Others, §§ 199, 200, 346).

237. In addition, especially whether the interference with the applicant’s right to personal liberty and security by conducting the judicial review of his detention without bringing him before a judge/court is within “the extent required by the exigencies of the situation” or not, within the meaning of Article 15 of the Constitution, must be determined. In this determination, the period during which the applicant was deprived of his liberty without being brought before a judge, as well as the characteristics of the case leading to the declaration of the state of emergency in the country, and the circumstances emerging upon the declaration of the state of emergency must also be taken into consideration (see Aydın Yavuz and Others, §§ 349).

238. During the state of emergency period in the aftermath of the coup attempt, certain amendments have been made to procedural rules with respect to the investigations and prosecutions for certain offences (especially offences associated with the coup-attempt, the FETÖ/PDY, and terrorism), effective throughout the state of emergency. Accordingly, Article 6 of the Decree Law no. 667 issued under the state of emergency enables that during the state of emergency, the detention reviews, examinations of objections to detention and requests for release shall be assessed and concluded over the case-file with respect to the offences defined in Parts 4, 5, 6 and 7 of the Chapter 4 of the Volume 2 of Law no. 5237, the offences falling into the scope of Law no. 3713, and the collective offences. Besides, Article 3 of the Decree Law no. 668 sets out that if the magistrate judge’s office or the court shall revise its decision if it accepts the objection, otherwise, it shall refer the objection within a maximum period of ten days to the competent court to examine the objection. It is also set forth that, detention reviews and requests for release shall be assessed and concluded over the case-file within time intervals of maximum 30 days (see Aydın Yavuz and Others, §§ 352). Decree Laws no. 667 and 668 have subsequently become law respectively on 18 October 2016 and 8 November 2016).

239. Membership of an armed terrorist organisation imputed to the applicant is set out in the Volume II, Chapter IV, Part V of Law no. 5237 and also among the offences enumerated in Articles 6 and 3 of the Decree Laws no. 667 and 668. Accordingly, the continuation of the applicant’s detention over the case-file without holding a hearing was ordered in line with the legal arrangements introduced by the above-mentioned Decree Laws.

240. The last sentence of Article 148 § 1 of the Constitution, which provides “… presidential decrees issued during a state of emergency or in time of war shall not be brought before the Constitutional Court alleging their unconstitutionality as to form or substance”, should not be interpreted as not allowing the examination, within the individual application mechanism, of the alleged interferences with the fundamental rights and freedoms. Nor do other articles of the Constitution or the relevant laws include any provision envisaging that an individual application cannot be lodged with the Constitutional Court during a period when emergency administration procedures are in effect, by alleging that any of the fundamental rights and freedoms falling into the scope of the individual application has been violated. Accordingly, in period of times when emergency administration procedures are in effect, the Constitutional Court has the authority to examine the applications lodged with the allegation that out of the fundamental rights and freedoms safeguarded in the Constitution, any of those falling into the scope of the ECHR or its additional protocols to which Turkey is a party has been violated by public force (see Aydın Yavuz and Others, §§ 180, 181). Accordingly, any interference with the fundamental rights and freedoms within the scope of individual application may be the subject of an individual application, even if it was based on decree laws issued during the state of emergency.

241. As a matter of fact, in one of its recent judgments, namely Aydın Yavuz and Others, the Constitutional Court examined whether the review of detentions of the applicants, who were detained on remand for having participated in activities related to the coup attempt, without a hearing for a period of 8 months and 18 days constituted a measure “proportionate to the exigencies of the situation”. The Court based its judgment on many reasons such as the fact that in the aftermath of the coup attempt, investigations were launched countrywide against many persons considered to have had relations with the coup attempt and the FETÖ/PDY and a considerable part of them were detained on remand; that these investigations were far more difficult and complex than other criminal investigations; that the judicial authorities were to manage a heavy workload which was unforeseeable; that following the suppression of the coup attempt, many members of the judiciary were suspended or dismissed from office by the HCJP for having connection with the FETÖ/PDY; that the detainees’ right of access to a court for their release and their opportunity to appeal against the court decisions on detention, dismissal of their request for release and continuation of their detention were safeguarded in the state of emergency, as well, and their detention was reviewed ex-officio within at least thirty-day periods; and that a considerable number of staff working in courthouse, law-enforcement officers as well as gendarmerie and security officers were suspended or dismissed from their public offices due to their relations with the FETÖ/PDY. Hence, the Court concluded that in the circumstances of the state of emergency period, denial of the applicants to appear before a judge/court during 8 months and 18 days constituted a measure “required by the exigencies of the situation”. Therefore, the Court found that the applicant’s right to personal liberty and security had not been violated, taken in conjunction with Article 15 of the Constitution (see Aydın Yavuz and Others, §§350-359).

242. Besides, in the present case, the period during which the applicant was not brought before a judge/court for judicial review of his detention (21 months) was longer than twice of the period examined in the judgment of Aydın Yavuz and Others.

243. Certain measures were taken during the state of emergency period to increase the number of judges and prosecutors. In this regard, the internships of the candidate judges and prosecutors were terminated and they were allowed to start their profession immediately, furthermore, an administrative process was initiated for the recruitment of a large number of new judge and prosecutor candidates and the internship period of the candidates were shortened, and the retired or resigned judges and prosecutors were provided with the opportunity to return their offices. As a result of these measures, approximately 6 thousand judges and prosecutors have been appointed to office after the coup attempt. Therefore, the gap created as a result of dismissal of judges and prosecutors from office during the state of emergency has been filled by the substantial increase in the number of judges and prosecutors.

244. Furthermore, almost all of the investigations into the coup attempt have been concluded, and prosecution stage has started with respect to the suspects. In some of these processes, first instance courts made decisions, as well. Accordingly, it can be said that an important progress has been made in the investigations and cases related to the coup attempt and the FETÖ/PDY. In addition, a significant part of the investigations against the persons who were detained on remand within the scope of the investigations into the FETÖ/PDY, although they did not have direct connection with the coup attempt, have been concluded, and even the first instance courts as well as the regional courts of appeal started to make decisions. Further, some of the suspects detained on account of the offences related to the FETÖ/PDY have been released or convicted, thereby ending their detention on remand.

245. Therefore, in the assessment of whether the judicial review of the applicant’s detention without being brought before a judge/court during approximately 21 months constituted a measure “proportionate to the exigencies of the situation” or not, the changing circumstances of the state of emergency period, besides the length of detention on remand, must also be taken into account.

246. Given the circumstances of the state of emergency period, especially the initiatives to increase the number of judges and prosecutors as well as the course of the investigation and prosecution processes related to the coup attempt and the FETÖ/PDY, it has been considered that the judicial review of detentions without bringing the suspects before a judge/court and the continuation of their detention on remand without holding a hearing in the course of investigation and prosecution phases related to the coup attempt, FETÖ/PDY and terrorism can be regarded as a measure required by the exigencies of the situation in the period up to 18 months.

247. However, it must be noted that this assessment has been made by taking into consideration the circumstances prevailing from the beginning of the state of emergency that was declared on 21 July 2016 until today and the changes in this regard. Therefore, this assessment must not be regarded as an open licence allowing investigation and prosecution authorities to conduct the judicial review of detentions over case-documents for a period of 18 months.

248. Nevertheless, regard being had to the fact that the state of emergency still continued and that a large part of the cases related to the coup attempt and the FETÖ/PDY were pending, the longer detention periods without a hearing compared to non-emergency times cannot be automatically regarded as a measure not required by the exigencies of the situation. The Court will make an assessment in each application by taking into consideration the circumstances of the case, the period during which the review of detentions was conducted without holding a hearing, and the developments in the state of emergency period.

249. Thus, the fact that the applicant, who was detained on remand for alleged membership of an armed terrorist organization (FETÖ/PDY), has not been brought before a judge/court within the scope of the judicial review of his detention for more than 18 months and that he was not provided with the opportunity to orally submit, before a judge/court, his challenges against detention, his allegations regarding the content and qualification of the evidence underlying his detention, his counter statements against the observations and considerations against him as well as his requests for release, were not regarded as a measure required by the exigencies of the situation.

250. Therefore, the interference with the applicant’s personal liberty and security by the extension of his detention over the case file without being brought before a judge/court for a period of 21 months, which was in breach of the safeguards provided in Article 19 § 8 of the Constitution, cannot be considered to be justified under Article 15 of the Constitution regulating the suspension and restriction of the fundamental rights and freedoms during “the state of emergency”.

251. Consequently, the Constitutional Court has found a violation of the applicant’s right to personal liberty and security under Article 19 § 8 of the Constitution, also in conjunction with Article 15 of the Constitution.

Mr. Hicabi DURSUN, Mr. Kadir ÖZKAYA, Mr. Rıdvan GÜLEÇ and Mr. Recai AKYEL did not agree with this conclusion.

Mr. Serdar ÖZGÜLDÜR submitted a concurring opinion.

E. Application of Article 50 of Code no. 6216

252. Article 50 §§ 1 and 2 of the Code on Establishment and Rules of Procedures of the Constitutional Court no. 6216 dated 30 March 2011 reads as follows:

“1) At the end of the examination of the merits it is decided either the right of the applicant has been violated or not. In cases where a decision of violation has been made what is required for the resolution of the violation and the consequences thereof shall be ruled. However, legitimacy review cannot be done, decisions having the quality of administrative acts and transactions cannot be made.

(2) If the determined violation arises out of a court decision, 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 favour 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 decision 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 decision of violation.”

253. The applicant claimed 1,000,000 Turkish liras (TRY) and TRY 100,000 for non-pecuniary compensation, respectively, in the applications no. 2016/15637 and no. 2017/35864.

254. It was concluded that Article 19 § 8 of the Constitution was violated for the applicant’s continued detention for 21 months without holding hearings and thus not bringing him before a judge/court. This finding of a violation should not be interpreted as pointing to the applicant’s release.

255. Besides, it has been observed that the applicant was not brought before a judge/court until the date of court decision within the scope of the review of his detention on remand. In order for the redress of the violation found by the Court as well as of its consequences, the applicant should be brought before a judge/court for review of his detention. Thus, the judgment should be sent to the 9^th Criminal Chamber of the Court of Cassation.

256. On account of the interference with the applicant’s right to personal liberty and security, he was awarded a net amount of TRY 3,000 for his non-pecuniary damage which could not be redressed by merely finding a violation.

257. The total court expense of TRY 2,477, including the court fee of TRY 497 and the counsel fee of TRY 1,980, which is calculated over the documents in the case file, must be reimbursed to the applicant.

VI. JUDGMENT

For the reasons explained above, the Constitutional Court held on 12 April 2018:

A. 1. UNANIMOUSLY that the alleged violation of the presumption of innocence be DECLARED INADMISSIBLE for being manifestly-ill founded;

 2. UNANIMOUSLY that the alleged violation of the right to a fair trial be DECLARED INADMISSIBLE for non-exhaustion of legal remedies;

 3. UNANIMOUSLY that the alleged violations of the right to respect for private life and the right to respect for home be DECLARED INADMISSIBLE for non-exhaustion of legal remedies;

4. UNANIMOUSLY that the alleged violation of the right to personal liberty and security due to unlawfulness of detention on remand be DECLARED INADMISSIBLE for being manifestly-ill founded;

5. UNANIMOUSLY that the alleged violation of the right to personal liberty and security due to inability to exercise the right to challenge effectively the detention be DECLARED INADMISSIBLE for being manifestly-ill founded;

6. UNANIMOUSLY that the alleged violation of the right to personal liberty and security due to the alleged unreasonable length of detention be DECLARED ADMISSIBLE;

7. UNANIMOUSLY that the alleged violation of the right to personal liberty and security due to the alleged review of detention without being brought before a judge/court be DECLARED ADMISSIBLE;

B. 1. UNANIMOUSLY that the right to personal liberty and security under Article 19 § 7 of the Constitution, regarding the alleged unreasonable length of detention, was NOT VIOLATED;

2. By MAJORITY and by dissenting opinions of Mr. Hicabi DURSUN, Mr. Kadir ÖZKAYA, Mr. Rıdvan GÜLEÇ and Mr. Recai AKYEL, that the right to personal liberty and security under Article 19 § 8 of the Constitution, regarding the alleged review of detention without being brought before a judge/court was VIOLATED;

C. That a copy of the judgment be SENT to the 9^th Criminal Chamber of the Court of Cassation in order to redress the consequences of the violation;

D. That the net amount of TRY 3,000 be PAID to the applicant as non-pecuniary compensation, and other claims for compensation be DISMISSED;

E. That the total court expense of TRY 2,477, including the court fee of TRY 497 and the counsel fee of TRY 1,980 be REIMBURSED to the applicant.

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

G. That a copy of the judgment be SENT to the Ministry of Justice.

CONCURRING OPINION OF JUSTICE SERDAR ÖZGÜLDÜR

 In Article 3 (ç), titled “Investigation and prosecution processes”, of Law no. 6755 on the Adoption with Certain Amendments of the Decree Law on the Measures to be taken under the State of Emergency and on Making Arrangements concerning Certain Institutions and Organisations, which is dated 8 November 2016 (published in the Official Gazette no. 29898 and dated 24 November 2016), it is set forth that as regards the offences defined in Volume II, Chapter IV, Parts IV, V, VI and VII of the Turkish Criminal Code no. 5237 as well as the offences falling into the scope of the Anti-Terror Law no. 3713 and collective offences, “the requests for release shall be adjudicated over the case-file, along with the judicial review of detention, within a maximum period of 30 days” so long as the state of emergency remains in force. This provision, which is so clear as not to be subject to interpretation, leaves no room for the magistrate judges to examine the challenges against detention by holding a hearing despite the explicit requests in this respect. In other words, in practice, the competent judges cannot examine such requests with a hearing. However, as the relevant provisions of the Decree Law no. 668 was enacted through Law no. 6755, it is undoubted that these provisions may be made subject to the Constitutional Court’s review and assessment. In examining the individual applications, the Court primarily takes into account the Constitution, the European Convention on Human Rights, as well as the case-law of the European Court of Human Rights (“the ECHR”). In case of any contradiction between a provision of law and the above-mentioned instruments, the Court reaches a conclusion, ignoring the contradictory provision. If there is “a violation” in such cases, which could be qualified as a “system’s failure”, the Court may render a violation judgment, in its capacity as the “judicial tribunal that is the highest guarantor of fundamental rights and freedoms”, on the issues which could not be expected to be dealt with by the first and second instance courts (including the appeal courts and superior courts).

 In the present case, there is also such a failure. Accordingly, in consideration of the clear provision of law, the relevant competent authorities (magistrate judges) cannot examine the challenges against detention “by holding a hearing” even if they wish to do so. However, given the length of the applicant’s detention, the safeguard afforded by Article 19 § 8 of the Constitution and the ECHR’s consistent practice on this matter, I consider that the provision fails to satisfy the criterion “to the extent strictly required by the exigency of the situation” which allows for the restriction of fundamental rights and freedoms as specified in Article 15 of the Constitution; and that therefore, in line with the similar practices adopted by the Court, a violation must be found in the present case by ignoring the said provision of law.

 For these reasons, I agree with the majority’s conclusion that Article 19 § 8 of the Constitution was violated in the present case, albeit on a different ground as explained above.

DISSENTING OPINION OF JUSTICES HİCABİ DURSUN, KADİR ÖZKAYA, RIDVAN GÜLEÇ AND RECAİ AKYEL

 For the following reasons, we do not agree with the conclusion reached by the Court’s majority on 12 April 2018 in the individual application no. 2016/15637 to the effect that the right to personal liberty and security was VIOLATED within the meaning of Article 19 § 8 of the Constitution insofar as it relates to the “alleged conduct of the judicial reviews of the applicant’s detention without being brought before a judge/court”.

 By the examination date of the present application, the state of emergency was still in force throughout the country, and the Republic of Turkey notified its derogation from the European Convention on Human Rights (“the Convention”) to the Secretary General of the Council of Europe as well as from the International Covenant on Civil and Political Rights (“the ICCPR”) to the Secretary General of the United Nations. The decisions extending the state of emergency were also notified to these two Secretariats. Besides, the judges/courts dealing with the requests for release and judicial review of detention are bound by the positive provisions which read as follows: “during the state of emergency, as regards the offences defined in Volume II, Chapter IV, Parts IV, V, VI and VII of the Turkish Criminal Code no. 5237 and dated 26 September 2004, as well as the offences falling into the scope of the Anti-Terror Law no. 3713 and dated 12 April 1991 and collective offences, … c) the magistrate judge or the court detention order of which has been challenged shall revise its order if deems it necessary; and if not, it shall send the detention order to the competent authority to review the challenge within a maximum period of 10 days; and ç) the requests for release shall be adjudicated over the case-file along with the judicial review of detention within a maximum period of 30 days” so long as the state of emergency remains in force; … and i) judicial review of detention, challenges to detention and requests for release shall be adjudicated over the case-file …”.

 However, the Court’s majority concluded that the conduct of the judicial reviews of detention in the investigations and/or prosecutions conducted with respect to the coup attempt, the FETÖ/PDY and terrorism without being brought before a judge/court and ordering the continued detention through decisions issued over the case-file may be considered, up to 18 months, as a measure “strictly required by the exigency of the situation”, given the certain measures taken during the state of emergency to increase the number of judges and prosecutors, the step taken to ensure that candidate judges and prosecutors take office immediately by terminating their internship, the administrative process initiated to recruit numerous new judges and prosecutors, the shortening of the duration of internship of the newly appointed judges and prosecutors, the ability afforded for the retired or resigned judges and prosecutors to be reinstated, the success to remedy the deficiencies resulting from the dismissal of many judges and prosecutors during the state of emergency through these measures and the significant progresses made with respect to the investigations and prosecutions as regards the coup attempt and the FETÖ/PDY. The Court’s majority nevertheless indicated that the periods exceeding 18 months could not be considered reasonable and acceptable.

 However, although certain measures were taken during the state of emergency to increase the number of judges and prosecutors, the conduct of judicial review of detention before a judge/court does not depend merely on the number of these officials but on several aspects and factors such as the security issue, the increased number of cases and disputes in parallel to the increase in the number of judges and prosecutors, the availability of transportation facility and staff to ensure transfer of detainees from prisons to courts and the excessive number of persons detained for the specified offences. Moreover, a significant part of the proceedings as regards the coup attempt are still pending before the first instance courts, like many of the investigations and prosecutions conducted with respect to the FETÖ/PDY, which points to the fact that the conditions of the periods following the first declaration of the state of emergency have been still prevailing.

 For these reasons, we do not agree with this part of the decision as we consider that the conduct of judicial reviews of the applicant’s detention without a hearing as of the date when his detention was ordered and the examination of his requests for release and challenges against detention over the case-file did not entail a violation of the right to personal liberty and security.