REPUBLIC OF TURKEY

CONSTITUTIONAL COURT

PLENARY

JUDGMENT

AYDIN YAVUZ AND OTHERS

(Application no. 2016/22169)

20 JUNE 2017

THE FACTS

[10-162] During the coup attempt of 15 July, the campus of Turkish Satellite and Communication Company (“TURKSAT”) located in Gölbaşı was occupied by the coup plotters on 16 July 2016 at around 00:47 a.m.

The applicants are electronic and computer engineers, and they reside outside Ankara. They arrived in Ankara at the evening hours on 15 July 2016 and went to TURKSAT campus by a car driven by the applicant Burhan Güneş on 16 July at around 2:00 am. The applicants were stopped at the entrance of the campus by police officers. They told the police officers that “they had been called in from inside the campus” and requested to enter to the campus. Thereupon, they were taken into custody.

On 18 July 2016, Gölbaşı Magistrate’s Judge Office ordered the applicants’ detention on remand for attempting to overthrow the constitutional order.

The Ankara Chief Public Prosecutor’s Office charged the applicants with the offences of “attempting to overthrow the constitutional order, attempting to overthrow the Grand National Assembly of Turkey or prevent it from performing its duties, attempting to overthrow the Government of the Republic of Turkey or prevent it from performing its duties and being a member of an armed terrorist organization”.

This action has been pending as of the date when this application was examined, and the applicants are still detained on remand.

V. EXAMINATION AND GROUNDS

163. At its session of 20 June 2017, the Constitutional Court examined the application and decided as follows.

A. Overview of the Emergency Administration Procedures

1. Definition and Characteristics

164.  The emergency procedures are the administration regimes of temporary and exceptional nature which are applied in the case where a severe threat or danger to the existence of the state or the nation or to the public order cannot be avoided by use of the powers of ordinary period and which grant the public authorities broader powers in comparison with those of ordinary period, with a view to averting such threat or danger. In such administration procedures, there may be changes both in the distribution of authority among the legislative, executive and judicial organs and there may be departure from the ordinary legal system. The most significant reflection of such departure is the narrowing of the safeguards with respect to fundamental rights and freedoms.

165. The emergency administration procedures may be applied only in the event of severe threat or danger to the existence of the state or the nation or to the public order, such as state of war, outbreak of war threat, rebellion, domestic disturbance, increase in violent acts, terrorist attacks, natural disaster, epidemic, and severe economic crisis. It may be unavoidable to take certain emergency measures, with a view to averting such threat or danger. In this regard, such a necessity may require, on one hand, enlarging of the powers vested in the executive powers in order to avert the existing threat or danger immediately and, on the other hand, restricting of fundamental rights and freedoms to the extent which cannot be justified in the ordinary period. Therefore, the emergency administration procedures arise from an exigency.

166.  Besides, the emergency administration procedures are exceptional and temporary in nature. These procedures may be resorted to only when there is a severe threat or danger to the existence of the state or nation or to the public order and as long as such threat or danger continues to exist. In this sense, aim of the emergency administration procedures is to eliminate the reasons necessitating the implementation of these regimes and to revert to ordinary legal order. Therefore, temporariness and exceptionality are underlies the legitimacy of the emergency administration procedures.

167.  The emergency administration procedures are legal regimes. Incidents posing a threat or danger to the existence of the state or the society or to the public order constitute factual basis for transition to the emergency administration regime. However, whatever the scope, gravity and effects of such incidents, measures directed at the elimination of the existing threats must comply with the law.

168.  In order to ensure compliance with the law in emergency periods, it is necessary to determine under which circumstances the emergency administration procedures may be applied and the procedure to be followed, as well as to set the limits of the likely measures in such periods in a way that would ensure legal certainty. Thereby, before the emergency administration procedures are applied, the individuals may foresee what kind of measures may be taken and to what extent fundamental rights may be restricted by state organs during such a period.

2. Emergency Administration Procedures in the International Texts

169.  In certain international instruments regarding the human rights, states are allowed to depart from legal regime of the ordinary period and to resort to measures contrary to the international obligations of the ordinary period, in the event of a war or emergency cases threatening the existence or life of the nation.

170.  Within this framework, it is set out in Articles 4 and 15 of the ICCPR and the ECHR, respectively, that measures contrary to the obligations set forth in these instruments may be taken under certain circumstances during such periods (see, §§ 132, 147 above).

3. Emergency Administration Procedures in the Turkish Law

171.  In the Turkish law, the first legal arrangement with respect to the emergency administration procedures was made in the Ottoman Basic Law in 1876. In Article 113 of the Basic Law, the proclamation of martial law was set out, whereas Article 36 thereof vested the administration with the authority to make certain legal arrangements with respect to emergency periods, under the name of the “Provisional Law”. By virtue of the Law on Treason and Fugitives introduced in 1920, certain legal arrangements were made with respect to emergency periods. Besides, in the period when the Constitution of 1921 was in force, the executive body had to resort to certain emergency measures during the Independence War. Articles 74, 78 and 86 of the Constitution of 1924 embodied the provisions as to emergency administration regimes. The Law on the Maintenance of Order enacted in 1925 and the National Security Law enacted in 1940 vested the government with certain powers specific to emergency periods. Article 123 of the Constitution of 1961 included provisions setting out the states of emergency, whereas Article 124 thereof related to the martial law and states of war. According to this provisions, martial law may be proclaimed in case of state of war, outbreak of any incident requiring a war, rebellion or existence of certain evidence indicating a serious insurrection against the Republic.

172.  The emergency administration procedures are embodied in the current Constitution (currently in force) introduced in 1982. Arrangements with respect to these procedures are provided in the Chapter Two ─relating to executive power─ of the Part Three setting out the fundamental organs of the Republic. In this scope, Articles 119, 120 and 121 of the Constitution set out “the states of emergency”, and Article 122 sets out “martial law, mobilization and state of war”.

173.  Two forms of emergency administration procedure are envisaged in the Constitution depending on the reason of proclamation. Accordingly, a state of emergency ─as set out in Article 119 of the Constitution─ may be resorted to in cases of “natural disasters, dangerous epidemic diseases or a serious economic crisis”, whereas a state of emergency ─as set out in Article 120─ may be resorted to in cases of “serious indications of widespread acts of violence or serious deterioration of public order due to acts of violence”. Martial law set out in Article 122 of the Constitution is an emergency administration procedure which may be applied in cases of “widespread acts of violence which are more dangerous than the cases necessitating a state of emergency, war, occurrence of a situation necessitating war, an uprising, or the spread of violent and strong rebellious actions against the motherland and the Republic, or widespread acts of violence of internal or external origin threatening the indivisibility of the country and the nation”.

4. Its Relation with Fundamental Rights and Freedoms

174.  The duties upon the state, in democracies, are to protect and improve fundamental rights and freedoms and to take measures which would ensure effective enjoyment of these rights and freedoms by everyone. Therefore, assurance of fundamental rights and freedoms is an indivisible element of a democratic society.

175.  However, fundamental rights and freedoms are not unlimited. Even during ordinary periods in democratic social orders, it is allowed to impose restrictions on these rights and freedoms due to various reasons such as national security, public order, prevention of offences and the protection of the other individuals’ rights. Besides, in periods where emergency administration procedures are in force as the existence of the state or society, or the public order is under serious threat or danger, it may be required to take measures resulting in wider restriction of fundamental rights and freedoms in comparison to ordinary periods or even suspension of these rights and freedoms, in order to avert the existing threat or danger.

176.  However, the aim of resorting to an emergency administration regime is not to prevent enjoyment of fundamental rights and freedoms but to re-establish the disturbed public order and to reinstate the ordinary administration procedure as immediate as possible, by means of averting threats or dangers towards the state and the society and thereby to ensure the re-enjoyment of denied rights and freedoms in a safe environment.

B. Examination of Individual Applications during the Periods when Emergency Administration Procedures are in Force

1. Authority to Examine Individual Applications

177.  Article 148 § 1 and the first sentence of Article 148 § 3, which set out the “functions and powers of the Constitutional Court” of the Constitution provide as follows:

 “The Constitutional Court shall examine the constitutionality, in respect of both form and substance, of laws, decree laws and the Rules of Procedure of the Grand National Assembly of Turkey, and adjudicate on individual applications. Constitutional amendments shall be examined and verified only with regard to their form. However, decree laws issued during a state of emergency, martial law or in time of war shall not be brought before the Constitutional Court, alleging their unconstitutionality as to form or substance.

 (…)

 Everyone may apply to the Constitutional Court on the grounds that one of fundamental rights and freedoms within the scope of the European Convention on Human Rights which are guaranteed by the Constitution has been violated by public authorities.”

178.  Article 45 § 1, titled “the right to individual application”, of the Code on the Establishment and Rules of Procedures of the Constitutional Court dated 30 March 2011 and no. 6216 (”Law no. 6216”) reads as follows:

 “Everyone may apply to the Constitutional Court based on the claim that any of fundamental rights and freedoms within the scope of the European Convention on Human Rights and the additional protocols thereto ─to which Turkey is a party─ which are guaranteed by the Constitution has been violated by public force.”

179.  By Article 148 § 1 of the Constitution, the Constitutional Court is invested with the duty and power to conclude individual applications. Pursuant to Article 148 § 3 of the Constitution and Article 45 § 1 of Law no. 6216, everyone is entitled to lodge an application with the Constitutional Court with the allegation that any of the fundamental rights and freedoms safeguarded in the Constitution and falling into the scope of the ECHR and the additional protocols thereto –to which Turkey is a party– has been violated by public force.

180.  On the other hand, whereas it is set out in Article 148 of the Constitution that decree laws issued during a state of emergency, martial law and state of war cannot be brought before the Constitutional Court for their alleged unconstitutionality as to form or substance (for interpretation and implementation of this provision, see the Court’s judgment no. E.2016/166 and K.2016/159 and dated 12 October 2016, §§ 12-23), there is no provision prescribing that an individual application cannot be lodged due to an interference with fundamental rights and freedoms during such emergency periods. 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.

181.  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.

2. Examination Process of Individual Applications

a. In General

182. 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.”

183. 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.”

184. The criteria to be taken into consideration in imposing a restriction on fundamental rights and freedoms during an ordinary period are set out in Article 13 of the Constitution. According to this, the interference with fundamental rights and freedoms must be in compliance with the criteria of “lawfulness”, “legitimate aim”, “compliance with the letter and spirit of the Constitution”, “not infringing the essence”, “being in conformity with the requirements of the democratic order”, “being in conformity with the requirements of the secular republic” and “the principle of proportionality”.

185. The restriction of fundamental rights and freedoms in ordinary times are laid out in Article 13 of the Constitution, whereas the restriction or suspension of the exercise of the rights and freedoms in times of “war”, “mobilization”, “martial law” and “a state of emergency” are set out in Article 15 of the Constitution.

186. According to the relevant article, 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.

187. Accordingly, in examining the individual applications against emergency measures, the Constitutional Court is to take into account the protection regime set out in Article 15 of the Constitution with respect to fundamental rights and freedoms.

b. Conditions as to the Applicability of Article 15 of the Constitution

i. Existence and Declaration of Emergency Case

188. For the application of Article 15 of the Constitution, there must exist “war”, “mobilization”, “martial law” or “state of emergency” and subsequently, the proper legal institution must be proclaimed by the state authorities empowered by the Constitution. Pursuant to Article 119 of the Constitution, in the event of “natural disaster, dangerous epidemic diseases or a serious economic crisis” and pursuant to Article 120 of the Constitution, in the event of “serious indications of widespread acts of violence or serious deterioration of public order because of acts of violence”, the Council of Ministers, meeting under the chairmanship of the President of the Republic, may proclaim a state of emergency; and pursuant to Article 122 of the Constitution, in the event of “widespread acts of violence which are more dangerous than the cases necessitating a state of emergency; or in the event of war, the emergence of a situation necessitating war, an uprising, the spread of violent and strong rebellious actions against the motherland and the Republic or widespread acts of violence of internal or external origin threatening the indivisibility of the country and the nation”, the Council of Ministers, meeting under the chairmanship of the President of the Republic, may declare martial law.

189. The Constitution-maker vested the Council of Ministers, meeting under the chairmanship of the President of the Republic, with the discretion of assessing whether there exists an emergency situation that is a precondition for the applicability of Article 15 and other relevant articles. The Constitution does not contain any provision empowering the Constitutional Court to review this discretionary power. However, the nature of the facts leading to proclamation of an emergency case will be taken into consideration in assessing whether the measures taken in the presence of such cases are within the extent required by the exigencies of the situation.

ii. The Measure must be related to Emergency Case

190. The main objective in applying emergency procedures is to eliminate the existing threat or danger which requires the application of these administrative regimes. For this reason, for the application of Article 15, it does not suffice that an impugned measure is taken during an emergency period but this measure must also be related to the elimination of the threat or danger leading to the declaration of the emergency case.

191. In case of failure to establish such a relation, Article 13, not Article 15, is to be applied in reviewing impugned measures even if it is taken in the emergency period. There is no doubt that the public authorities have a wide margin of appreciation as to which measure is related to the elimination of the threat or danger leading to the declaration of the emergency case. However, the final evaluation of whether this discretionary power has been exceeded or not will be made by the Constitutional Court.

c. Examination pursuant to Article 15 of the Constitution

i. Whether the Measure is in breach of the Safeguards Enshrined in the Constitution

192. The use of emergency administration procedures in emergency cases where there is a serious threat or danger to the existence of the state, community or public order does not necessarily require that any measure taken at this time be beyond the criteria allowed in the ordinary period. Public authorities may also take measures to prevent the existing danger or threat by using the means provided by the ordinary legal order in emergency cases. Therefore, an interference with fundamental rights and freedoms during emergency periods may be compatible with the guarantees set out in the Constitution for ordinary times.

193. Accordingly, in the individual applications against a measure interfering with fundamental rights and freedoms during an emergency period, the first examination under Article 15 of the Constitution will be made for determining whether the relevant measure complies with the guarantees set out in the Constitution according to the criteria of the ordinary period. This is also required by Article 15 of the Constitution which reads as “…measures which are contrary to the guarantees embodied in the Constitution may be taken.”

194. In such review, other provisions of the Constitution, being in the first place the provision where the interfered right is set forth, and of course, Article 13 of the Constitution which is of main importance in restricting rights and freedoms during the ordinary period, will be relevant. If this review result in a finding that the measure is in compliance with the guarantees set out in provisions of the Constitution other than Article 15, naturally no further examination will be made with respect to the criteria set out in Article 15 of the Constitution, and it will be concluded that the interference has not led to a violation of any fundamental right or freedom.

195. If the relevant interference is found to be in breach of the safeguards prescribed in the Constitution with respect to fundamental rights and freedoms, then a further examination will be made for determining whether it is justified by Article 15 of the Constitution, in which the restriction or suspension of the exercise of fundamental rights and freedoms in times of “war”, “mobilization”, “martial law” and “a state of emergency” are set out. Where it is determined that the interference is in compliance with the criteria set out in the relevant Article, it will be concluded that the right or freedom raised in the individual application has not been violated. Otherwise, in the case that the interference is found to be contrary to one or more criteria set out in Article 15 of the Constitution, it will be concluded that the right or freedom raised in the individual application has been violated.

ii. Whether a Measure in Breach of the Non-emergency Safeguards is Legitimate in time of Emergency Period

(1) Whether the Measure has a bearing on the Core Rights

196. In order to accept that the measure, which constitutes an interference with fundamental rights and freedoms during the emergency administration procedures and is contrary to the safeguards provided in the Constitution, is legitimate, in the first place it must not infringe upon the rights and freedoms provided in Article 15 § 2 of the Constitution. Accordingly, even in emergency cases, the individual’s right to life and the integrity of his/her corporeal and spiritual existence shall be inviolable except in cases of death that occurs through acts in conformity with the 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.

197. If the measure which is contrary to the safeguards set out in the Constitution is related to the enlisted core rights, it cannot be regarded as legitimate within the meaning of Article 15 of the Constitution, and it will be concluded, without any further examination, that the relevant right or freedom has been violated.

 (2) Whether the Measure is in breach of the Obligations Stemming from the International Law

198. The second examination to be made under Article 15 of the Constitution aims at determining whether the measure is in breach of the obligations stemming from the international law. The primary obligations among these obligations are those stemming from the international conventions on human rights to which Turkey is a party.

199. The main conventions on human rights to which Turkey is a party are the ICCPR and the ECHR. According to Article 4 of the ICCPR and Article 15 of the ECHR, in time of public emergency which threatens the life of the nation, the States may take measures derogating from their obligations under these conventions. However, the rights and freedoms that cannot be suspended are set out in Article 4 § 2 of the ICCPR, Article 15 § 2 of the ECHR, Article 4 of the Protocol No. 7 to the ECHR, Article 3 of the Protocol No. 6 of the ECHR and Article 2 of the Protocol No. 13 to the ECHR. A substantial portion of these rights and freedoms are embodied in Article 15 § 2 of the Constitution. Accordingly, within the scope of the second examination, no separate assessment is required with respect to the common rights and freedoms set out in the Constitution, the ICCPR and the ECHR, which cannot be suspended.

200. However, it is regulated in Article 4 § 2 of the ICCPR, Article 15 § 2 of the ECHR and Article 4 of the Protocol No. 7 to the ECHR that certain rights and freedoms that are not enlisted in Article 15 of the Constitution cannot be suspended. In this respect, even in emergency cases, no one shall be held in slavery or servitude, no one shall be imprisoned for not fulfilling their obligations stemming from the convention, and no one shall be tried or punished again for an offence for which he/she has already been finally acquitted or convicted. Furthermore, even during this period everyone shall have the right to recognition everywhere as a person before the law. Lastly, the measures to be taken during an emergency period must not involve discrimination on the ground of race, colour, sex, language, religion or social origin.

201. Accordingly, the measures interfering with the above-mentioned rights and freedoms ─though they are not among the core rights provided in Article 15 of the Constitution─ cannot be considered as legitimate due to non-compliance with the obligations stemming from the international law.

 (3) Whether the Measure is within the extent required by the Emergency Case

202. The last examination to be made for establishing whether the measure constituting an interference with fundamental rights and freedoms during a period when emergency administration regimes are in force is legitimate or not pursuant to Article 15 of the Constitution is directed at determining whether it is “within the extent required by the emergency case”.

203. The principle of proportionality is also set forth in Article 13 of the Constitution where the criteria set for restricting fundamental rights and freedoms during the ordinary period are regulated. However, the proportionality pointed out in Article 15 of the Constitution refers to the proportionality in a situation leading to the implementation of emergency administration procedures. In this respect, the proportionality set forth in Article 15 of the Constitution allows for much more interference with fundamental rights and freedoms when compared to the proportionality criteria provided in Article 13 of the Constitution. This point is also supported by the very fact that the criterion set forth in Article 15 of the Constitution can only be applied in cases where a measure derogating from the safeguards regarding fundamental rights and freedoms for ordinary times is in consideration (see also §§ 192─195 above).

204. The principle of proportionality set out in Article 15 of the Constitution represents that the means used for restricting or suspending the use of fundamental rights and freedoms are appropriate and necessary for achieving the aim, and that the means and the aim are proportionate to each other (see the TCC, E.1990/25, K.1991/1, 10 January 1991). According to this, the measure must be appropriate for achieving the aim of eliminating the threat or danger causing the emergency case and must be necessary for achieving this aim; furthermore, there must be no disproportionality between the public interest in the aim to be achieved and the negative effect of the measure restricting fundamental rights and freedoms on the individual (see, among many other authorities, the TCC, E.2013/57, K.2013/162, 26 December 2013).

205. In determination of the elements of the proportionality, all conditions of the emergency period in which the measure is taken must be assessed together. In this scope, the nature of the threat or danger leading to the adoption of emergency administration procedures must primarily be taken into consideration in the assessment of the elements concerning the proportionality of the emergency measure constituting an interference with fundamental rights and freedoms.

206. The nature of the interfered right or freedom is also important in determination of the proportionality. For example, depriving an individual of his/her liberty and restricting his/her freedom of organization or right to property will not have the same adverse effect. As a matter of fact, restriction of an individual’s liberty makes the exercise of many rights and freedoms considerably difficult in itself and makes it even impossible in some occasions.

207. The period of the time when the measure is taken must also be taken into account in determination of the proportionality. In this respect, measures taken during a time when the events constituting the emergency case has occurred or when the concrete danger is obvious and measures taken during a period when the danger or the threat has considerably been eliminated must be assessed in different ways. Here, especially the conditions of the period of the time when the measure was implemented must be taken into account. In this regard, the fact that the public authorities impose certain measures in a less strict manner in progress of time during the state of emergency cannot be construed to mean that the relevant measures were disproportionate at the time when they were employed initially. The gradual implementation of measures based on the emergency administration regime is within the discretion of the public authorities.

208. On the other hand, the duration, scope and weight of the measure which interferes with fundamental rights and freedoms should be taken into consideration in determining the proportionality. As a matter of fact, as the duration of the interference prolongs, the burden on individual increases. However, a short term measure may also affect fundamental rights and freedoms very seriously due to its scope or weight. Thus, the weight of the measure can cause individual to bear an excessive burden independently of its duration.

209. On the other hand, it is necessary to provide individuals with procedural safeguards to challenge disproportionate or arbitrary interferences with fundamental rights and freedoms. Accordingly, individuals’ being deprived of these safeguards considerably will be incompatible with the principle of proportionality.

210. There is, of course, a wide margin of appreciation for the public authorities, who are primarily responsible for combating it, in the issues as to whether a measure is appropriate to eliminate the threat or danger that constitutes the emergency case and whether the measure is proportionate to the aim to be achieved. However, it is within the scope of the duties of the Constitutional Court to examine whether the measure that is subject to an individual application goes beyond this margin of ​​appreciation.

211. Lastly, in addition to taking measures which are contrary to the guarantees embodied in the Constitution in terms of fundamental rights and freedoms in emergency cases, it is also set out in Article 15 of the Constitution that the exercise of fundamental rights and freedoms may be suspended partially or entirely. However, the notion of “suspension” here does not mean that the relevant right become completely unusable, it rather means that it is suspended temporarily. The measures in the form of suspending the exercise of fundamental rights and freedoms must be in compliance with the abovementioned aspects of the principle of proportionality.

C. Assessment as to the Current Emergency Case in Turkey

212. The incident led to the emergency case in Turkey is the coup attempt that took place on 15 July 2016. Those behind the coup attempt attacked the nation, the legitimate government, the media outlets and the security forces. During the attack, they used war arms such as fighter jets, helicopters, vessels and tanks and heavy weapons, which were entrusted to them for protecting the very people they attacked. This barbaric attempt left behind more than 250 deaths and thousands of injured. The coup attempt aimed at overthrowing the constitutional order was prevented by the decisive resistance of all legitimate elements of the democratic society (see §§ 15-19 above).

213. In assessing the magnitude of the threat posed by the coup attempt against the democratic constitutional order, it is not sufficient to take into consideration the damage caused by this prevented attempt alone. In addition to this, the risks that might have occurred if the coup attempt had not been prevented in a short time or if the coup had occurred must also be assessed. If the nation that is the owner of the sovereignty and all elements of the democratic constitutional order had not prevented the coup attempt in a short time by their decisive resistance, they would either have accepted the absolute sovereignty of a group of rebels and surrendered to their will which is not subject to a democratic supervision or they would have continued their resistance. The first possibility would have resulted in the death of a nation democratically. The latter would have led to the prolongation of the clashes as well as their becoming widespread, thereby leading to, as an imminent, serious and explicit threat, the emergence of the risk of overthrowing the state authority and even the state completely.

214. On the other hand, the fact that this coup attempt took place at a time when Turkey was under fierce attack of many terrorist organizations made the country even more vulnerable to such attacks and therefore considerably increased the gravity of threat it posed against the existence of the nation (see §§ 42-43, 46 above).

215. Given all these assessments, there is no doubt that the coup attempt of 15 July has posed an existing and severe threat not only to the democratic constitutional order but also to the “individuals’ fundamental rights and freedoms” and “national security”, both of which are indeed closely associated with one another. This is the most severe attack in the history of the country, targeting the national security and the lives of the people and even existence of the whole nation.

216. The investigations initiated by the authorities following the coup attempt, the statements of suspects and witnesses, the material facts (see §§ 27-35 above), and pre-coup attempt investigations on the FETÖ/PDY (the Fetullahist Terrorist Organization/Parallel State Structure) (see § 25 above), when considered as a whole, indicate that the public authorities’ assessment as to the FETÖ/PDY being the plotter/perpetrator of the coup attempt has sufficient factual basis. As a matter of fact, as stated in the reports of international organizations, these findings of the relevant authorities are accepted by a vast majority of Turkish society (see § 161 above).

217. On the other hand, Turkey has faced many coups or coup attempts since the date on which the multi-party system was adopted in the country. The following characteristics of the FETÖ/PDY increase the gravity of the threat it has posed to the democratic social order even more: the FETÖ/PDY has been organized in all public institutions and organizations, notably the Turkish Armed Forces, security directorates, the judiciary, public institutions of education and religion, the political parties, trade and labour unions, non-governmental organizations and business companies; it has national and international alliances; it has been operating in over 150 countries in many fields; it adopts a mentality attributing holiness to the organization and to its actions without questioning; its members act in full obedience and devotion to the organizational will, and it is made up of hierarchical and cell-type structure; it has been using confidential/covert means of communication; it ultimately aims at taking control of the constitutional institutions of the state, re-designing the society and the individuals in line with its own ideology, and governing the country through an oligarchic rule (see § 26 above).

218. Considering the principles set forth in the Preamble of the Constitution, the characteristics of the State ─set out in Article 2─, the sovereignty and the manner it is exercised ─set out in Article 6─, and the systematic of the Constitution as a whole, it is understood that there is an indissoluble link between “sovereignty”, “the manner the sovereignty is exercised, “the will of the nation”, “democracy”, “state of law” and “human rights”.

219. Accordingly, the source of sovereignty will be the nation, as in all civilized societies, the sovereignty will be exercised ─directly or indirectly─ by the organs authorized by the nation’s will, the nation’s will shall be exercised within a democratic order, and the sovereignty will be exercised by the authorities in compliance with the principles of democracy, being in the first place the principle of the state of law and respect for human rights.

220. Coup attempt is an attempt by a group, which is not authorized to exercise the nation’s sovereignty, to overthrow or change the democratic constitutional order by use of coercion and violent means. Where the coup occurs, the democratic constitutional order and the superiority of the will of the nation will cease to exist, and the sovereignty belonging to the nation ─thus to each individual─ in the democratic order will be overtaken by a group. In this case, there can be no mention of democracy and the state of law. Naturally, in such an order, there will not be a mechanism that will safeguard fundamental rights and freedoms of individuals. As a matter of fact, fundamental rights and freedoms can in the real sense be protected in the presence of an effective democracy.

221. In view of the reasons explained above, it is beyond dispute that the coup attempt constitutes an open and serious attack on the principles of “sovereignty belong to the nation”, “sovereignty shall be exercised through the authorized organs”, “the exercise of sovereignty shall not be delegated by any means to any individual, group or class”, “democracy”, “state of law”, and “respect for human rights” which are the indispensable principles of the democratic social order set forth in the Constitution. In this respect it can be said that one of the most serious threats that a democratic society may face, and maybe the severest one, is coup attempts.

222. In Article 5 of the Constitution, “protecting the Republic and democracy”, “ensuring the welfare, peace and happiness of the individual and society”, “striving for the removal of obstacles which restrict fundamental rights and freedoms of the individuals” and “providing the conditions required for the development of the individual’s material and spiritual existence” are set out among the fundamental aims and duties of the State. Preventing the coup attempts, which are the most serious attacks on the democratic constitutional order, fundamental rights and freedoms and national security, or completely eliminating the danger posed by the coup attempt that took place and the threat leading to the coup attempt is not only an issue within the authority of the State, but also a responsibility and duty of the State which cannot be disregarded pursuant to Article 5 of the Constitution.

223. According to Article 120 of the Constitution, “In the event of serious indications of widespread acts of violence aimed at the destruction of the free democratic order established by the Constitution or of fundamental rights and freedoms, or serious deterioration of public order because of acts of violence, the Council of Ministers, meeting under the chairmanship of the President of the Republic, after consultation with the National Security Council, may declare a state of emergency in one or more regions or throughout the country for a period not exceeding six months.” The Constitution restricted the declaration of a state of emergency and its extension to certain periods, in accordance with the temporary and exceptional nature of the emergency administration procedures. The state of emergency which might be declared for a period not exceeding six months under Article 120 of the Constitution might be extended for a maximum of four months each time under Article 121 of the Constitution.

224. As a matter of fact, following de facto prevention of the coup attempt, the Council of Ministers, meeting under the chairmanship of the President of the Republic in accordance with Articles 120 and 121 of the Constitution, after consultation with the National Security Council (see § 47 above), declared a state of emergency throughout the country for a period of ninety days starting from 21 July 2016 01.00 a.m. At the end of this period, the state of emergency was extended three times for three months respectively (see §§ 48-49 above). Within state of emergency, various measures were taken against the relevant persons, such as launching criminal investigations and applying preventive measures in this respect, dismissal from the public service, closing private education institutions and appointing trustees for companies (see §§ 51-66 above).

225. The state of emergency which was declared after the coup attempt has been discussed in international reports and documents as well. The Council of Europe Commissioner for Human Rights indicated in his Memorandum that if the coup attempt of 15 July had reached its goal, the democracy in Turkey would have been overthrown, as well as, all underlying values of the Council of Europe would have been eliminated. The report of the Venice Commission clearly states that as the coup attempt has posed a threat to the existence of the Turkish democracy, it constitutes a general danger threatening the life of the nation and that following the coup attempt, Turkey has had the right to defend its democratic institutions and its people. The Venice Commission and the Commissioner for Human Rights have acknowledged that it is both natural and necessary to give an immediate and decisive response to the open threat posed by the coup attempt against the Turkish democracy and the Turkish State (see §§ 161-162 above).

226. The coup attempt made on 15 July 2016 lies behind the declaration of state of emergency on 21 July 2016. This was noted in the recommendation of the National Security Council and was also underlined by the Minister of Justice who took the floor on behalf of the Government during a meeting held at the General Assembly of the GNAT on the approval of the declaration of state of emergency (see §§ 23, 48 above).

227. On the other hand, it was pointed out in the general preamble of the Decree Law no. 667, which was issued immediately after the declaration of state of emergency, that for “protecting the constitutional order, national order, rule of law, democracy and fundamental rights and freedoms, terminating the last coup attempt in our country completely, and avoiding the reoccurrence of such a coup attempt”, as well as for “maintaining the fight against terrorism in a more effective manner”, it became necessary to take some urgent measures during the state of emergency. The aim of the Decree Law in question was stated in Article 1 of the Decree Law as “to establish measures that must necessarily be taken within the scope of attempted coup and fight against terrorism under the state of emergency and to determine procedures and principles relating to these measures.” Accordingly, in addition to the fact that the coup attempt made on 15 July 2016 lies behind the declaration of the state of emergency, the intense terror attacks against Turkey also have a bearing in this regard. In addition to the coup attempt, “other terrorist attacks” were also referred to in the declarations of derogation submitted by Turkey to the Secretary General of the Council of Europe.

228. As a matter of fact, after the coup attempt was defeated and the state of emergency was declared, Turkey continued to face intense terrorist attacks. In this context, bombed and armed terrorist attacks occurred in many cities including Ankara, İstanbul, İzmir, Kayseri, Diyarbakır, Mardin, Gaziantep, Elazığ, Van, Bingöl, Antalya, Hakkâri and Şırnak; and many security officers and civilians lost their lives or got injured during these attacks. Given those terrorist attacks, it is understood that the threat of terrorism in Turkey is not limited to a specific region of the country and that it is of a size and intensity which severely affects the whole population (see § 44 above).

229. It is understood that the measures implemented during the state of emergency, considered in parallel with the public authorities’ above mentioned assessments on the facts leading to the declaration of state of emergency, aims at eliminating the threats and dangers arising from terrorism and the FETÖ/PDY that is revealed to be the perpetrator of the coup attempt of 15 July.

230. However, it appears that the public authorities imposed the measures in a less strict manner during the period following the declaration of state of emergency. Within this framework, some of the detainees were released, the measures pertaining to the dismissal of the judicial members and public officials from office and pertaining to the dismissal of some students and the closure of some institutions have been partially revoked. Furthermore, “Commission on Examination of the State of Emergency Procedures” was decided to be established with a view to examining and adjudicating the applications concerning the actions directly instituted by emergency decree laws. In this sense, the opportunity to bring an annulment action against the decisions of the relevant Commission has also been introduced. Lastly, it was stated in the Decree Law no. 685 that the judicial members and those who deemed as such may file an action with the Supreme Administrative Court as the first-instance court within sixty days as from the date the decision become final (see Murat Hikmet Çakmakcı, no. 2016/35094, 15 February 2017, §§ 27-28; and Hacı Osman Kaya, no. 2016/41934, 16 February 2017, §§ 28-29).

D. Examination of the Applicants’ Allegations

1. Alleged Unlawfulness of the Applicants’ Detention

a. The Applicants’ Allegations and the Observations of the Ministry

231. The applicants maintained that on the date of incident they acted together with the convoys formed by the groups resisting the coup attempt and went to the campus where TURKSAT was located, that their act was not associated with any activity related to the coup attempt, that they did not have any connection with the imputed offences; and that they nevertheless were detained. In this respect, the applicants alleged that their right to fair trial, right to an effective remedy, right to personal liberty and security, as well as, the principle of equality had been violated. They requested their release and sought compensation in this connection.

232. In its observations, the Ministry reiterated the similar judgments of the Constitutional Court and the ECtHR on detention and pointed out that for a detention to be lawful, it must comply with the requirements of the national legislation and that the national legislation must be in compliance with the ECHR and must not be arbitrary. Accordingly, for a person to be deprived of his liberty, there must be reasonable suspicion or convincing reasons indicating that he has committed the imputed offence. For the existence of reasonable suspicion ─regard also being had to the evidence obtained and to the circumstances of the case─, there must be sufficient evidence to convince an objective observer. On the other hand, it is not necessary to have sufficient evidence to charge a person with an offence at the time of taking the person into custody or during the custody.

233. The Ministry considers that as a criminal case was initiated against the applicants, there has been sufficient suspicion, beyond reasonable doubt, of their having committed the offence, which justified their being taken into custody. Besides, the applicants’ statements are incompatible with each other. In addition, the applicant Aydın Yavuz was the user of “ByLock” which is the cryptographic communication application through which the members of the FETÖ/PDY members communicated with each other for organizational communication.

234. The Ministry pointed out that the charges against the applicants were based on concrete evidence and that, given the emergency case following the coup attempt during which the applicants were arrested, taken into custody and detained, those measured cannot be considered as arbitrary. Accordingly, given the incidents that occurred on the night of 15 July, the applicants’ statements, the incident scene investigation report and all other relevant information and documents, there is no reason to depart from the judicial authorities’ conclusions (detention). Therefore, the applicants’ complaints in this respect are manifestly ill-founded.

b. The Constitutional Court’s Assessment

235. Article 19 § 1 and the first sentence of Article 19 § 3 of the Constitution reads 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."

236. The Constitutional Court is not bound with the legal characterization of the facts by the applicants, but the Court makes such assessment itself (see Tahir Canan, no. 2012/969, 18 September 2013, § 16). As the gist of the applicants’ allegations are related to the fact that they have not been involved in the offence they are charged with and therefore their detention was unlawful, this part of the application must be examined within the scope of the right to personal liberty and security within the meaning of Article 19 of the Constitution.

i. Enforceability

237. The accusations on basis of which the applicants were detained was their having gone to the TURKSAT campus which was occupied by the coup plotters in order to cease the broadcasting as part of the coup attempt on 15 July 2016. The applicants were detained on 18 July 2016 within the scope of the investigation conducted on the basis of this accusation. On the date when the applicants were detained, a state of emergency had not been declared yet in Turkey. The state of emergency was declared three days after the applicants’ detention (see § 48 above).

238. However, the charges against the applicants were related to an action within the scope of the coup attempt of 15 July which led to the declaration of a state of emergency in Turkey. The applicants were arrested on the night of the coup attempt on the basis of the allegation that they were involved in an activity within the scope of the coup attempt, and they were detained two days after their arrest. In this case, it appears that the charges on the basis of which the applicants were arrested were directly related to the incidents leading to declaration of the state of emergency.

239. Emergency administration procedures are exceptional administration regimes that are applied in cases where the State, the community life or the public order is under a serious threat or danger. This administration regime can be adopted after the fulfilment of certain procedural requirements. According to Articles 120 and 121 of the Constitution and Article 3 of Law no. 2935, in the event of serious indications of widespread acts of violence aimed at the destruction of the free democratic order established by the Constitution or of fundamental rights and freedoms, or serious deterioration of public order because of acts of violence, firstly the National Security Council must meet and submit an opinion to the Government in this respect; then, the Council of Ministers must meet under the chairmanship of the President of the Republic and proclaim a state of emergency in one or more regions or throughout the country, and lastly the proclamation must be published in the Official Gazette. Furthermore, after the proclamation of a state of emergency, this must immediately be submitted to the GNAT for approval (see §§ 107-108, 111).

240. The measures applied by public authorities against the incidents leading to state of emergency before its proclamation may be reviewed under Article 15 of the Constitution. In this regard, when a severe incident affecting the whole country such as the coup attempt is experienced, it is not possible to immediately take above-mentioned procedural steps for declaring a state of emergency. Considering the incidents occurred during the coup attempt of 15 July, such as the armed raid carried out at the hotel where the President was staying, the armed harassment conducted against the Prime Minister’s convoy, and taking hostage of the Chief of the General Staff and the Commanders-in-chief of Armed Forces, the meeting of the National Security Council ─consisting of the President, the Prime Minister, the Chief of the General Staff, the Deputy Prime Ministers, the Minister of Justice, the Minister of National Defence, the Minister of Interior, the Minister of Foreign Affairs, the Commanders of the Turkish Land, Naval and Air Forces and the Commander of the Turkish Gendarmerie Forces─ and subsequently the meeting the Council of Ministers under the chairmanship of the President, and the publication of proclamation of state of emergency took some days (until 21 July 2016).

241. At the time when the incidents leading to the declaration of a state of emergency occurs, which poses a threat against the national security and the public order, the public authorities cannot be expected to remain inactive to eliminate this threat until the declaration of a state of emergency. For this reason, 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 in the event of an unexpected situation having severe effects, such as coup attempt necessitating the declaration of a state of emergency, on fundamental rights and freedoms must be examined under Article 15 of the Constitution (for the ECtHR’s similar judgments on the practices prior to the notification of derogation, see § 160).

242. In this respect, the lawfulness of the applicants’ detention will be reviewed under Article 15 of the Constitution. Prior to such review, whether the applicants’ detention violated the guarantees set forth in Articles 13, 19 and in other Articles of the Constitution must be determined.

ii. General Principles

243. The Constitutional Court examined the alleged unlawfulness of detention in many judgments and set out the principles concerning the examination methods (see Mustafa Ali Balbay, no. 2012/1272, 4/12/2013, §§ 71-75; Hanefi Avcı, no. 2013/2814, 18/6/2014, §§ 45-49; Hikmet Kopar and Others, §§ 77-84; Günay Dağ and Others [the Plenary], no. 2013/1631, 17/12/2015, §§ 154-163; Erdem Gül and Can Dündar [the Plenary], no. 2015/18567, 25/2/2016, §§ 62-69; and Süleyman Bağrıyanık and Others, cited above, §§ 203-215).

244. 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 deprived of liberty with due process of law laid out 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 out in this Article exists (see Murat Narman, no. 2012/1137, 2 July 2013, § 42).

245. Similar to the rules provided in the Constitution, it is set out in Article 5 § 1 of the ECHR that everyone has the right to liberty and security and that no one shall be deprived of his liberty save in the cases stated in Article 5 § 1 (a)-(f) (see Mehmet İlker Başbuğ, no. 2014/912, 6 March 2014, § 42).

246. The 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 provided. 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 Article 19 § 3 of the Constitution, and not being in breach of the principle of proportionality (see Halas Aslan, no. 2014/4994, 16 February 2017, §§ 53-54).

247. 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, the requirement of “lawfulness” as regards the restriction of all fundamental rights and freedoms, which is provided in Article 13 of the Constitution, is also set out in Article 19 in terms of the right to personal liberty and security. In this respect, it is necessary in accordance with Articles 13 and 19 of the Constitution, which are compatible with each other, that the measure of arrest as an interference with personal liberty must have a legal basis (see Murat Narman, cited above, § 43; and Halas Aslan, cited above, § 55).

248. On the other hand, it is provided in Article 13 of the Constitution that fundamental rights and freedoms may be restricted only in conformity with the reasons mentioned in the relevant articles of the Constitution. The individuals who may be detained as a restriction to their personal liberty and security, the cases in which a detention order may be given, and the authorities who may give a detention order are explained in Article 19 § 3 of the Constitution. According to the Article, 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, cited above, § 57).

249. Accordingly, detention of a person primarily depends on the presence of a strong indication of having committed a crime. 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 cases and information which can be considered as convincing evidence is to a large extent based on the peculiar conditions of the concrete case (see Mustafa Ali Balbay, cited above, § 72).

250. 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. 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). Therefore, it is not absolutely necessary to require that the sufficient evidence have been collected in the course of arrest or detention. The facts which will form a basis for criminal charge 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).

251. It is also 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. Accordingly, the Constitution grants discretion to the legislator to determine the legal grounds for detention (see Halas Aslan, cited above, § 58).

252. Article 100 of Law no. 5271, where the grounds for detention are regulated, provides that individuals may only be detained if there are facts indicating that there is a strong suspicion of having committed an offence and there is a ground for detention. The grounds for detention are also set out in the same Article. According to this, 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).

253. 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 that detention must be proportionate. In parallel with the constitutional provisions, it is provided in Article 100 of Law no. 5371 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, cited above, § 72).

254. The aim of the principle of proportionality is to prevent the unnecessary restriction of fundamental rights and freedoms. In accordance with the judgments of the Constitutional Court, the principle of proportionality, which requires that there must be a reasonable relation between the aim and the means, in other words, a fair balance must be struck between the restriction and the interest it provides, has three sub-principles in the examination of the relation between the restrictive measure and the purpose of the restriction: “appropriateness” that is to determine whether the measure is appropriate for reaching the purpose of the restriction, “necessity” that seeks to determine whether the restrictive measure is necessary for reaching the purpose of the restriction and for the democratic social order; and “proportionality” that determines whether the purpose and the means are proportionate to each other and in this respect whether they impose a disproportionate obligation or not (see E.2013/57, K.2013/162, 26 December 2013).

255. It is primarily the duty of the judicial authorities, which implements the detention measure, to respect the “principle of proportionality” set forth in Article 13 of the Constitution. Therefore, whether a detention measure implemented within the scope of a criminal investigation or prosecution is proportionate or not can primarily be determined on the basis of the grounds of the detention order (see Murat Narman, cited above, § 62). The detention of a person through a court order which is completely devoid of statement of reasoning is unacceptable. A suspect or accused may be detained by showing justifications which legitimize detention, however, giving a detention order through extremely short justifications and without relying on legal provisions cannot be considered as such (see Hanefi Avcı, cited above, § 70).

256. In the justifications of the decisions on detention, the prerequisite of the detention which is “existence of a strong indication that the person committed the imputed offence”, as well as, “the grounds for detention” must be set forth. This is also set out in Article 101 § 2 of Law no. 5271 where detention orders are regulated. Accordingly, the evidence showing that there is a strong suspicion of having committed an offence, that there are grounds for detention, and that the detention measure is proportionate will be justified with concrete facts and must be expressly stated in detention orders (see Halas Aslan, cited above, § 75).

257. For an initial detention, it may be sufficient, by the very nature of the case, to present abstract grounds for detention set forth in the Constitution and the Law (see Halas Aslan, cited above, § 77). On the other hand, it must be examined whether the preventive measures alternative to detention are sufficient in accordance with the principle of proportionality, in the most general sense, for ensuring the legitimate purpose of the proper administration of justice. The obligations imposed by virtue of conditional bail, which are set forth in Article 109 of Law no. 5271, are the preventive measures that have less effects on fundamental rights and freedoms compared to detention. Accordingly, for a detention to be proportionate, it must be set forth in detention orders why the measures of conditional bail are not sufficient in terms of the legitimate aim to be achieved by detention. This issue is set forth in Article 101 § 1 of Law no. 5271 concerning the detention measures (see Halas Aslan, cited above, § 79).

iii. Application of Principles to the Present Case

258. Within the scope of an investigation conducted on the basis of the allegation that the applicants took part in an activity as part of the coup attempt, they were detained for the offence of attempting to overthrow the constitutional order under Article 100 of Law no. 5271. In this respect, the applicants’ detention that amounts to an interference with their right to personal liberty and security has a legal basis.

259. When the detention orders in respect of the applicants are examined (see 81 above), it is understood that detention of the applicants ─an interference with their right to personal liberty and security─ ordered by the Judge’s Office on the basis of the strong suspicion of having committed an offence and on the grounds for detention has a legitimate aim as set forth in the Constitution and the Law.

260. Within the scope of the right to personal liberty and security of person, the most significant element of the judicial review of the first detention is the existence of “strong indication” of having committed an offence, which is specified as one of the requisite conditions of having recourse to detention measure in Article 19 § 3 of the Constitution. In that regard, the existence of serious indication of having committed an offence suffices for the first detention of a person (see Hikmet Kopar and Others, cited above, § 84).

261. When the coups and coup attempts against Turkey are examined, it appears that the places mass media and communications platforms are among the first places seized or wanted to be seized by the coup plotters. That is because, taking under control the mass media and the communication is of vital importance for a successful coup attempt.

262. As a matter of fact, on 15 July 2016 many attacks were carried out by the coup plotters for the purpose of seizing the places which provided mass media and communication services. In this respect, the coup plotters occupied the TRT and issued a coup declaration on behalf of the “Peace at Home Council”, as well as, they occupied or attempted to occupy some of the private television channels, and they also carried out attacks against the places from where television broadcasts and internet access were provided. As a matter of fact, the coup plotters who were assigned with the duty of seizing the TURKSAT and the TIB could not reach those places as they were prevented by the people (see § 69 above). The coup plotters occupied the TURKSAT through the military officers whom were dispatched by helicopters and they forced the staff working there to cease the satellite broadcastings, and as they could not succeed, they bombed the TURKSAT campus by fighter aircrafts ( see §§ 70-72, 76 above).

263. The fact that the television broadcasting or internet access could not be cut off by the coup plotters during the coup attempt carries a great importance in the failure of the coup. Almost all TV channels made anti-coup broadcastings. Through these broadcastings, many segments of society realized that a coup attempt was being carried out by the members of the FETÖ/PDY that infiltrated into the TAF and that the legitimate State authorities made efforts to suppress this coup attempt. The President invited people, connecting through a videophone system to a number of private TV channels, to take to the streets to prevent the coup, one of the private TV channels broadcasting this speech of the President live was occupied by the coup plotters in the late hours of the night while the live broadcasting was still continuing, and the broadcasting was ceased, and the Turkish people watched this attempt of occupation live. In addition, the statements, images or videos of state and security officials resisting the coup attempt and the images and videos of brutal attacks of coup plotters were disseminated among the people through social media, and the resistance of people against the coup attempt in an organized manner via communicating social media accounts/groups became significantly effective in the failure of the coup.

264. As regards the existence of suspicion of having committed an offence in the present case, the detention order referred to the incident scene, the investigation report, and the applicants’ statements (see 81 above). According to the determinations of the investigation authorities, the applicants wanted to enter the campus of TURKSAT occupied by coup plotters, and they were stopped by the police officers at the entrance of the campus. They were arrested after the applicant Burhan Güneş, who had been driving the car, had stated that “they had been called by those inside the campus” and had tried to delete the records on his mobile phone in rush (see § 75 above). The authorities considered “being called by those who were inside the campus” to be a call by the military officers occupying TURKSAT.

265. In addition to that, the applicants stated that they had been residing in various regions outside Ankara and had met at the bus station in Ankara at the evening hours on 15 July and that they had borrowed the car they were driving from a person whose name they did not want to disclose. Although they also stated that they had been moving to join the convoys fighting against the coup, they in fact went to the campus of TURKSAT (located in the Gölbaşı district) which was tens of kilometres away from the provincial centre where anti-coup demonstrations took place (see §§ 73-74 above).

266. Moreover, the suspect U.O. (owner of the car by which the applicants went to TURKSAT) stated to the investigation authorities that “he met with the applicants at a home on the incident day, the applicants left the home by his vehicle, and later on, the applicants were reported in the news that they raided TRT (“the Turkish Radio and Television Corporation”) building together with the coup-plotter military officers for interrupting its broadcasting at the night of the coup attempt.” One of the military officers occupying TURKSAT, E.U., said in his statement that “as the TURKSAT personnel did not assist us to stop broadcasting, we were told by our superiors that civilian technicians would arrive from outside to assist us to stop broadcasting” (see §§ 97, 100). Accordingly, there are strong reasons substantiating the investigation authorities’ suspicion that the applicants committed the imputed offences. 

267. In addition, it has been established that the applicants, Burhan Güneş and Aydın Yavuz, were users of the “ByLock” application (app), which is the digital platform through which the FETÖ/PDY members maintained secure communication among themselves. Taking into account the technical features of this app, it is comprehensible that the fact that the applicants have and use this app is considered by authorities as a strong indication for their connection with the FETÖ/PDY. As a matter of course, the degree of this indication may vary by concrete incidents, depending on the factors such as whether this app has been actually used by the individual concerned, the manner and frequency of its use, the position of and importance attached to the contacts within the FETÖ/PDY, and the content of messages communicated via this app. Moreover, the competent authorities’ assessment that the use of ByLock or having it in electronic/mobile devices constitutes a strong indication of having committed an offence cannot be considered as unfounded or arbitrary. Therefore, it must be concluded that there is, also in this respect, a strong suspicion that the applicants Burhan Güneş and Aydın Yavuz, who are users of this app, had committed the imputed offences.

268. On the other hand, although the pre-requisite of strong suspicion of having committed an offence for detention may exist, it must also be determined whether the impugned detention measure is proportionate or not. The constitutional review on this matter must be made with regard to the detention process and the grounds thereof (see Erdem Gül and Can Dündar, cited above, § 79; Mehmet Baransu (2), no. 2015/7231, 17 May 2016, § 136; and Süleyman Bağrıyanık and Others, cited above, § 226). At this stage, the Constitutional Court’s duty is not to find out the most appropriate measure or means best serving the establishment of justice but to review the constitutionality of the impugned interference (the detention measure in the present case). In this connection, in determining whether the detention measure implemented during the investigations was proportionate or not within the meaning of Articles 13 and 19 of the Constitution, all circumstances of the case including the general conditions when the detention order was given must be taken into account.

269. In the first place, investigation of the terror offences exposes the public authorities to serious difficulties. Therefore, the right to personal liberty and security must not be interpreted as to make it excessively difficult for the judicial and investigation authorities to deal effectively with crimes ─particularly organized ones─ and the criminals (see Süleyman Bağrıyanık and Others, cited above, § 214).

270. Thousands of military officers were involved in the coup attempt during which extremely brutal attacks were carried out, such as armoured attacks against the GNAT and the Presidential Complex by fighter aircrafts and helicopters, armoured attack against the hotel where the President was staying, the firing against the convoy which the Prime Minister’s vehicle was in, the hostage of the many senior military officers among whom there was also the Chief of the General Staff, the occupation of many public institutions by force of arms, the recital of the coup declaration on the TRT, the attacks carried out to cut off the television broadcasting or internet access across the country, and the killing or injuring of the persons who took to the streets to resist the coup attempt. In this respect, it can be said that a strong wave of violence and fear spread throughout the country.

271. 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 organization, orchestrated criminal or violent acts committed by thousands of FETO/PDY members in an organized 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.

272. The possibility of escape of the persons who are involved in the coup attempt or who are in connection with FETÖ/PDY─ the terror organization 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 organized in almost all public institutions and organizations 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 organization (for similar assessments, see Yıldırım Ataş, no. 2014/4459, 26 October 2016, § 60). As a matter of fact, many suspects who are subject to investigation in this respect have escaped abroad in the course of the investigation process.

273. It is clear that this situation concerning the general conditions after the coup attempt of 15 July does not require automatic detention of all the suspects investigated with respect to the said events. Moreover, the investigating authorities did not resort to the detention measure with respect to all suspects against whom they conducted investigations in relation to the FETÖ/PDY regardless of their involvement in the coup attempt. In this scope, a significant proportion of the suspects (about 2/3) have been released by conditional bail or without any preventive measures or they have not been subjected to any procedures restricting liberty. Similarly, thousands of suspects have been released after their detention (see § 52 above).

274. In the present case, while giving a detention order, the Judge’s Office relied on the existence of the suspicion of tampering with evidence, the severity of the sanction set forth in the Law for the offence, the fact that the measure of conditional bail might be insufficient and that detention is proportionate.

275. According to their statements, the applicants residing in İzmir, İstanbul and Gebze arrived at Ankara on 15 July in the evening, one or two hours before the time when the activities within the scope of the coup attempt were started, and they were arrested while trying to enter the TURKSAT campus, which was occupied by the coup plotters, during the time when the clashes had just occurred. The car the applicants used on the night of the incident did not belong to them, and they were unable to provide a reasonable explanation about the person from whom they borrowed the car and the way they received it. It is understood that in the morning after the coup attempt, the accused U.Ö. who was the owner of the car took it from the incident scene by using the spare key of the car without informing the investigating authorities and without taking permission, and that the car was later found by through registry information. In addition to these, “the offence of attempting to overthrow the constitutional order” on the basis of which the applicants were detained requires “aggravated life imprisonment” which is the heaviest punishment set forth in the Turkish legal system. The gravity of the punishment set forth in the Law with respect to the imputed offence constitutes one of the cases where the suspicion of fleeing arises (see Hüseyin Burçak, no. 2014/474, 3 February 2016, § 61). Furthermore, it was understood that on the night of the incident the applicant Aydın Yavuz escaped from the car, where he was being held handcuffed, by taking advantage of the turmoil occurred due to the bombing of the TURKSAT by the fighter aircrafts and that the next day he was arrested by the gendarmerie at a petrol station and handed over to the police.

276. Considering the general circumstances in which the applicants were detained and the particular circumstances of the present case together, it is understood that the legal grounds for the applicants’ detention, the risk of tampering with evidence and suspicion of fleeing have sufficient factual basis. Regard being had to the fact that the applicants were arrested while they were trying to enter the TURKSAT campus on the night when the coup attempt occurred and that they were held in custody for two days and then the Judge’s Office ordered their detention, there is no reason to conclude that their detention during the investigation process was not “necessary” as an element of the principle of proportionality.

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

278. Accordingly, as it is concluded that the interference with the applicants’ right to personal liberty and security by means of detention does not constitute a violation of the guarantees set forth 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 Unreasonable Length of Detention

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

279. The applicants maintained that the extension of their detentions lacked justification and that in this respect they continued to be deprived of their liberty arbitrarily. In this connection, the applicants alleged that their right to a fair trial, right to an effective remedy, right to personal liberty and security, and the principle of equality had been violated, and they requested their release and sought compensation in this respect.

232. In its observations, the Ministry did not make any explanations as to the applicants’ allegations under this heading.

b. The Court’s Assessment

281. Article 19 § 7 of the Constitution reads 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."

282. The Constitutional Court is not bound by the legal characterization of the facts by the applicants, but the Court makes such assessment itself (see Tahir Canan, § 16). The applicants’ allegations that the extension of their detention lacked justification and, in this respect, the alleged length of their detention must be examined within the scope of the right to personal liberty and security safeguarded in Article 19 of the Constitution.

i. Enforceability

283. The suspected offence resulting in the applicants’ detention concerned an act relating to the coup attempt of 15 July, which was the primary incident that led to the declaration of the state of emergency in Turkey. The state of emergency was in force during the period when the applicants were detained on remand. In this respect, whether the length of the applicants’ 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 applicants’ detention was in breach of the safeguards enshrined in Articles 13 and 19 and the other Articles of the Constitution.

ii. General Principles

284. The Constitutional Court examined the alleged unreasonable length of detention in many judgments and set out the principles concerning the examination methods (see Murat Narman, cited above, §§ 60-66; Mustafa Ali Balbay, cited above, §§ 102-106; Hanefi Avcı, cited above, §§ 64-73; Hüseyin Burçak, cited above, §§ 42-61; and Halas Aslan, cited above, §§ 51-91).

285. 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, cited above, § 60; and Halas Aslan, cited above, § 66).

286. 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 certaim 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, cited above, § 67).

287. It is also stated in the 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 (see Galip Öğüt [the Plenary], no. 2014/5863, 1 March 2017, § 35), 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. Accordingly, the investigation and prosecution proceedings carried out while the suspect/accused 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, §§ 68-71).

288. On the other hand, whether a detention measure is proportionate or not may be determined firstly on the basis of the grounds of the detention orders. The existence of “a strong indication of having committed the crime” as a prerequisite for detention and “the grounds for detention” must be set forth in the justifications of detention orders. As a matter of fact, according to Article 101 of Law no. 5271, the evidence showing that there is a strong suspicion of having committed an offence, that there are grounds for detention and that the detention measure is proportionate shall be justified with concrete facts and shall be explicitly indicated in the decisions on detention, continuation of detention, and rejection of a request to be released (see Halas Aslan, §§ 74-75).

289. The strong suspicion of having committed an offence is a prerequisite for detention and must exist at all stages of detention. Although for an initial detention it is not always possible to put forward the existence of a strong suspicion of having committed an offence, the evidence that will justify or eliminate the suspicion of having committed an offence will be accessed 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, the detention cannot be said to have a legitimate aim (see Halas Aslan, cited above, § 76).

290. Although for an initial detention, it may be sufficient, by the very nature of the case, to indicate abstractly the grounds for detention set forth in the Constitution and the Law, as the evidence is collected during investigation/prosecution proceedings, the possibility to tamper with evidence disappears or gets difficult. Furthermore, it can also be said that the risk of absconding of the suspect or accused 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, it is not sufficient to indicate the abstract grounds for detention (see Hanefi Avcı, cited above, § 70).

291. In such decisions, the grounds for detention must be explained on the basis of concrete facts, and it must also be explained why these reasons are necessary in the circumstances of the case. 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 the detention, and, in this sense, the grounds for detention must be personalized (see Hanefi Avcı, cited above, § 84). It is also necessary in the detention decisions to explain why the measures of conditional bail ─having less effect on fundamental rights and freedoms when compared to detention─ are insufficient. Despite the “presumption of innocence” which is one of the basic principles of the law and safeguarded in Article 38 § 4 of the Constitution as “No one shall be considered guilty until proven guilty in a court of law”, the continuation of detention may only be justified in cases where it is demonstrated with evidence that the detention of the person for the purpose of proper administration of justice prevails the right to liberty and security (see Halas Aslan, cited above, § 78).

292. 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, cited above, § 61).

293. 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, cited above, § 66).

294. 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 of detention and the decisions on the continuation of the detention rendered by the inferior courts and to examine whether these grounds are relevant and sufficient in the particular circumstances of the case, also considering if the required due diligence ─explained above─ is respected or not. 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 proceedings are prolonged due to the lack of due care on the part of public authorities, it shall be found that length of detention has exceeded the reasonable period (see Halas Aslan, cited above, §§ 82-83).

iii. Application of Principles to the Present Case

295. On 16 July 2016 the applicants were taken into custody, and they were detained by the decision of the Gölbaşı Magistrate Judge’s Office, dated 18 July 2016. As of the date of examination of the individual application, the applicants’ detention on remand has been ongoing. Accordingly, the applicants have been detained for approximately 11 months.

296. The applicants, who have been accused of entering the TURKSAT campus that was occupied by the coup plotters within the scope of the coup attempt of 15 July in order to cease the satellite broadcasting, have been detained in this respect for the offence of “attempting to overthrow the constitutional order”. It was clearly pointed out by the Magistrate Judges’ Offices during the investigation and by the 14^th Chamber of the Ankara Assize Court during the prosecution proceedings that there was a strong suspicion of the applicants’ having committed the imputed offence. In the examination of the alleged unlawfulness of the applicants’ detention, the Constitutional Court has concluded that there are strong indications that the applicants have committed the offence (see §§ 264-267). Considering the content of the evidence referred to in the decisions on detention and continuation of detention with respect to the applicants, it is concluded that court decisions are explanatory and sufficient in terms of the existence of the strong suspicion of having committed offence, which is a prerequisite for detention.

297. Upon examination of those court decisions, it is concluded that these decisions were based on the factual and legal grounds such as the risk of absconding, the risk of tampering with evidence, the gravity of the sanction arising from the imputed offence, that the imputed offence is among the offences regarding which the ground for arrest may be deemed to exist ipso facto under Article 100 § 3 of Law no. 5271, that the measure of conditional bail will not be sufficient and that the detention measure is proportionate (see §§ 83, 86, 92; 102-104 above). Considering the nature of the charges and the circumstances of the facts examined during the investigation/prosecution proceedings as a whole, it has been also concluded that the reasons provided for the continuation of detention sufficiently demonstrates that it is based on legal grounds and legitimate aims at this stage of the proceedings.

298. On the other hand, in the investigation carried out into the attack aimed at ceasing the television broadcasting by seizing the TURKSAT, the investigation authorities took actions against 12 military officers who had allegedly occupied the TURKSAT, against the applicants, and against a suspect who was the owner of the car used by the applicants on the date of the incident. In this scope, besides the applicants, the defence of some other suspects who had not escaped were taken, the professional positions and the backgrounds of the suspects were investigated, evidence with respect to the bank records of the applicants and their use of secret communication programs were collected, and the statements of many complainants were taken. Furthermore, autopsy reports of those who had lost their lives during the incident and medical reports of those injured (indicating the type of injuries) were requested from the Forensic Medicine Institute, expert reports pertaining to the criminal examinations carried out on the evidence collected from the incident scene were obtained, a footage was examined, suspects were identified, the signals received from the GSM lines used by the suspects were determined and examined, and the incident scene investigation reports were drawn up. Accordingly, the whole investigation process was concluded within approximately 5 months and 15 days after the coup attempt, the applicants were prosecuted by the indictment issued by the Ankara Chief Public Prosecutor’s Office on 2 January 2017. Within the scope of the proceedings, the first hearing was held on 4 April 2017 and the applicants’ defence were taken. Evidence were collected during the hearings held until 8 May 2017, and on this date the public prosecutor submitted to the Court his written opinion as to merits (see §§ 103-104 above). In this respect, it has been concluded that the investigation and prosecution proceedings are conducted with due diligence.

299. Regard being had to the fact that the reasoning of the decisions on the continuation of the applicants’ detention are relevant and sufficient to substantiate the legal grounds for the applicants’ being deprived of their liberties and that the investigation and prosecution proceedings did not lack due diligence, it has been concluded that the detention period of approximately 11 months is reasonable.

300. In view of the reasons explained above, as it is clear that there has been no violation with respect to the alleged unreasonable length of the applicants’ detention, this part of the application must be declared inadmissible for being manifestly ill-founded.

301. Accordingly, as it is concluded that the interference with the applicants’ right to personal liberty and security by ordering the continuation of their detention is not contrary to the safeguards provided in Articles 13 and 19 of the Constitution, no further examination is required under Article 15 of the Constitution.

3. Alleged Restriction of the Access to the Investigation File

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

302. The applicants Birol Baki, Burhan Güneş and Salih Mehmet Dağköy maintained that their right to defence was interfered due to the restriction order given on account of the confidentiality of the investigation file. In this respect the applicants alleged that their right to a fair trial was violated.

303. In its observations, the Ministry submitted the judgments of the ECtHR and pointed out that the suspect or the accused or defence lawyers must have access to the main information and documents relied on for detention order. According to the Ministry, in the present case the Magistrate Judge’s Office read out to the applicants the information and the documents in the case file on the basis of which they were detained, as well as, the investigation document. The Ministry also drew attention to the fact that the applicants gave detailed statements concerning the offences they were charged with at the police station. Accordingly, as the applicants had information about the evidence on the basis of which they were charged, they could object to these evidence effectively.

b. The Court’s Assessment

304. 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."

305. The Constitutional Court is not bound by the legal characterization of the facts by the applicants, but the Court makes such assessment itself (see Tahir Canan, § 16). In this respect, the applicants’ allegations in this part must be examined within the scope of the right to personal liberty and security safeguarded in Article 19 of the Constitution.

i. Enforceability

306. As the restriction order against which the applicants complained was issued within the scope of an investigation conducted on the basis of their alleged participation in an activity as part of the coup attempt leading to the declaration of the state of emergency, the lawfulness of this order, in other words, its effect on the right to personal liberty and security will be examined under Article 15 of the Constitution. Within this scope, it will be first established whether the restriction order and its enforcement are contrary to the guarantees provided in Article 19 of the Constitution.

ii. General Principles

307. The Constitutional Court examined in many judgments the effect of the restriction orders issued in accordance with Article 153 of Law no. 5271 on the right to personal liberty and security and, in particular, the right of objection of the detainees to their detention, and the Court determined in this judgments the general principles concerning the examination methods (see Hikmet Kopar and Others, cited above, §§ 121-122; Günay Dağ and Others, cited above, §§ 168-176; Hidayet Karaca [the Plenary], no. 2015/144, 14 July 2015, §§ 105-107; Erdem Gül and Can Dündar, cited above, §§ 46-48; Süleyman Bağrıyanık and Others, cited above, §§ 248-257).

308. It is provided in Article 19 § 4 of the Constitution that individuals arrested or detained shall be promptly notified in writing, or orally when the former is not possible, of the grounds for their arrest or detention and the charges against them; in cases of offences committed collectively this notification shall be made, at the latest, before the individual is brought before a judge (Günay Dağ and Others, cited above, § 168).

309. Furthermore, pursuant to Article 19 § 8 of the Constitution, persons whose liberties are restricted for any reason are entitled to apply to the competent judicial authority for speedy conclusion of the proceedings regarding their situation and for their immediate release if the restriction imposed upon them is not lawful. Under this procedure, although it is not possible to provide all safeguards of the right to a fair trial, the concrete safeguards complying with the conditions of the alleged detention must be set forth in a judicial decision (see Mehmet Haberal, no. 2012/849, 4 December 2013, §§ 122-123).

310. At the investigation phase, access to certain evidence may be restricted for the reasons such as, in particular, protecting the fundamental rights of the third parties, protecting the public interest or securing the investigation methods. Therefore, restriction of the lawyer’s right to examine the case file for securing the effectiveness of the investigation proceedings cannot be considered necessary for the democratic social order. However, the restriction to be imposed on the right to access to the case file must be proportionate to the aim pursued and must not prevent the use of the right to defence adequately (see the Court, E.2014/195, K.2015/116, 23 December 2015, § 107).

311. Arrested persons must be told the legal and factual grounds for the arrest in a simple and nontechnical language that they can understand so that, if they deem necessary, they can to apply to the court to challenge its lawfulness in accordance with Article 19 § 8 of the Constitution. Article 19 § 4 of the Constitution does not require that the information provided during arrest or detention contains a full list of the offences the arrested or detained person is charged with. In other words, it does not necessitate that all evidence on the basis of which he is accused be notified or explained (see Günay Dağ and Others, § 175).

312. In the event that the applicant is questioned about the content of the restricted documents or that the applicant referred to the content of such documents within the scope of the objection to detention order, it must be accepted that the applicant had access to the documents on the basis of which the detention was ordered, that the applicant had sufficient information about the content of the documents and therefore could adequately challenge the the grounds for detention. In such a case, the detainee has sufficient information about the content of the documents that the detention is based on (see Hidayet Karaca, § 107).

iii. Application of Principles to the Present Case

313. Pursuant to Article 153 § 2 of Law no. 5271, Gölbaşı Magistrate Judge’s Office ordered on 16 July 2016 the restriction of the applicants’ lawyers’ access to the investigation file on the ground that his review of the file or taking copies of the documents would endanger the purpose of the investigation.

314. By a petition dated 14 December 2016, the applicants Birol Baki, Burhan Güneş and Salih Mehmet Dağköy requested to be released and that the restriction order in question be lifted. However, while the applicants’ request to be released was dismissed with the decision of the Ankara 4^th Magistrate Judge’s Office, dated 26 December 2016, no decision was rendered with respect to their request for lifting the restriction order (see §§ 90-92 above). Although there is no document or information as to whether the restriction order was later lifted or not, on 13 January 2017 when the 14^th Chamber of the Ankara Assize Court accepted the indictment, the restriction automatically ended in accordance with Article 153 § 4 of Law no. 5271.

315. The charges against the applicants are based on the fact that they went to the TURKSAT campus, which was occupied by the coup plotters during the coup attempt of 15 July, to cease satellite broadcasts. In the examination of the applicants’ statements taken by the police, it was seen that the applicants were given information on the offences they were charged with and they were asked questions about the acts on account of which they were accused, that they submitted their defence against the imputed offences together with their lawyers, that the applicants denied the accusations against them and that they denied that they went to the TURKSAT to help cease the satellite broadcasting.

316. It was also understood that during the statement taking process before the Gölbaşı Magistrate Judge’s Office, the investigation documents and the other information in the investigation file were read out to the applicants in the presence of their lawyers. After being informed about the information and documents pertaining to the charges against them, they made verbal defence before the judge in the presence of their lawyers. In their defence submissions, they denied the accusations once again.

317. Furthermore, it was understood that in their petitions to object to their detention, the applicants submitted their arguments in detail. Besides, the applicants did not complain about the restriction of their access to their records of statement, expert reports, and the records of other judicial proceedings during which they were entitled to be present and in this respect about the violation of Article 153 § 3 of Law no. 5271. Accordingly, it is understood that the applicants and their lawyers had access to the information on the basis of which they the detention is ordered.

318. In this respect, considering the fact that the main elements forming a basis for the accusations and the information on the basis of which the lawfulness of detention was assessed were notified to the applicants or to their lawyers and that the applicants were provided with the opportunity to make their defence accordingly, it could not be accepted that the applicants could not effectively object to their detention due to the restriction order imposed during the investigation process that lasted a few months (for a similar assessment, see Deniz Özfırat, no. 2013/7929, 1 December 2015, § 91).

319. For the reasons explained above, as it is clear that there is no violation in terms of the alleged restriction of the right to defence of the applicants Birol Baki, Burhan Güneş and Salih Mehmet Dağköy in the context of the objection to their detention due to the restriction order, this part of the application must be declared inadmissible for being manifestly ill-founded.

320. Accordingly, as it is seen that the interference with the applicants’ right to personal liberty and security by the restriction order within the investigation file is not contrary to the safeguards provided in the Constitution (in particular, Article 19), no further examination is required under Article 15 of the Constitution.

4. Alleged Review of Detention without Hearing

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

321. The applicants Birol Baki, Burhan Güneş and Salih Mehmet Dağköy maintained that the review of their detention and of their objection to detention was carried out without holding a hearing, which was in breach of their right to fair trial.

322. In its observations, the Ministry pointed out that in accordance with the Decree Laws nos. 667 and 668, decisions concerning the review of detention, the objection to detention and the request for release may be given without holding a hearing. The Ministry notes that given the notification of derogation made under Article 15 of the Constitution and Article 15 of the ECHR, the number of persons taken into custody after the coup attempt and against whom judicial action was taken, the high number of the investigations conducted and the fact that many members of the judiciary were suspended from their duties due to their links with the FETÖ/PDY and/or that they were dismissed, these arrangements have been in compliance with the international obligations and within the extent required by the exigencies of the situation.

b. The Court’s Assessment

323. The Constitutional Court is not bound by the legal characterization of the facts by the applicants, but the Court makes such assessment itself (see Tahir Canan, § 16). In this respect, the applicants’ allegations in this part must be examined within the scope of Article 19 § 8 of the Constitution.

i. Enforceability

324. The accusation on the basis of which the applicants were detained is related to an act carried out within the scope of the coup attempt of 15 July that was the main incident leading to the declaration of the state of emergency in Turkey. During the applicants’ detention period, the state of emergency was in force. In this respect, the effect of the review of the applicants’ detention without holding a hearing on the right to personal liberty and security will be examined under Article 15 of the Constitution. In the course of this examination, it will be first established whether the manner in which the review of detention was carried out was in breach of the safeguards provided in Article 19 of the Constitution.

ii. Admissibility

325. This part of the application must be declared admissible for not being manifestly ill-founded and for lack of other grounds for inadmissibility.

iii. Merits

(1) General Principles

326. The Constitutional Court examined the allegations regarding the procedure to be applied in the review of detention and objections to detention in many judgments, and it indicated in these judgments the principles concerning the method of review (see Firas Aslan and Hebat Aslan, no. 2012/1158, 21 November 2013, §§ 64-78; Mehmet Haberal, cited above, §§ 122-132; Mehmet Halim Oral, no. 2012/1221, 16 October 2014, §§ 50-54; Ferit Çelik, no. 2012/1220, 10 December 2014, §§ 51-52; Hikmet Yayğın, no. 2013/1279, 30 December 2014, §§ 29-36; Emrah Oğuz, no. 2013/1755, 25 March 2015, §§ 43-54; Ulaş Kaya and Adnan Ataman, no. 2013/4128, 18 November 2015, §§ 53-73; and Süleyman Bağrıyanık and Others, cited above, §§ 265-270).

327. Pursuant to Article 19 § 8 of the Constitution, persons whose liberties are restricted are entitled to apply to the competent judicial authority for speedy conclusion of the proceedings regarding their situation and for their immediate release if the restriction imposed upon them is not lawful (see § 309 above). As no distinction was set forth in the relevant provision with respect to the grounds of restriction of liberty, the right to apply to the competent judicial authority naturally covers the deprivation of liberty by means of detention on account of the suspicion of having committed offence (see Mustafa Başer ve Metin Özçelik, cited above, § 165).

328. 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 Mehmet Haberal, cited above, § 123).

329. 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, cited above, § 32; Faik Özgür Erol and Others, no. 2013/6160, 2 December 2015 § 24).

330. 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, cited above, §§ 29-30).

331.  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. Even if an advantage afforded to one of the parties does not result in an unfavourable outcome against the other party, the principle of equality of arms is deemed to have been breached in such case (see Bülent Karataş, no. 2013/6428, 26 June 2014, § 70).

332.  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. This principle is highly correlated with the principle of equality of arms, and these two rights are complementary in nature. This is because in case of breach of the principle of adversarial proceedings, the balance between the parties for defending their case shall be impaired (Bülent Karataş, cited-above, § 71).

333.  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 tool 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, cited-above, § 66¸and Süleyman Bağrıyanık and others, § 267).

334.  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.

335.  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

336.  On 18 July 2016, the applicants were heard by the Gölbaşı Magistrate Judge’s Office. At this stage, the applicants and their defence counsels orally submitted their defence arguments with respect to the accusations brought against them and to the detention request of the prosecutor’s office.

337.  It appears that at the investigation stage the reviews of the applicants’ detention ─ex officio and upon the applicants’ request─ were conducted without a hearing. The applicants’ objections to detention orders and to continuation of detention were concluded by the competent authorities over the case-file. Nor does the observation submitted by the Ministry include any information indicating that reviews of detention were carried out, at the investigation stage, by holding a hearing.

338.  In this respect, at the investigation stage, the applicants’ detention was reviewed and their objections to detention were assessed without holding a hearing.

339.  The indictment of 21 January 2017 issued by the Ankara Chief Public Prosecutor’s Office in respect of the applicants was admitted by the 14^th Chamber of the Ankara Assize Court on 13 January 2017. The court then ex officio reviewed the applicant’s detention status in the preliminary examination carried out at the same date. This examination was also made over the case-file. Moreover, it appears that the court ex officio reviewed the applicants’ detention status over the case-file on 9 February and 9 March 2017 and ordered the continuation of their detention.

340.  Within the scope of the proceedings conducted against the applicants, the first hearing was held on 4 April 2017. The applicants and their defence counsels orally submitted their request for release during the hearing held on 6 April 2017. The court dismissed the applicants’ request for release and ordered the continuation of their detention in the same hearing.

341.  From 18 July 2016 when the applicants’ detention was ordered to 6 April 2017, the applicants’ detention status was ordered to continue by virtue of the decisions rendered upon the reviews carried out over the case-file without holding a hearing. The applicants did not have the opportunity to orally submit their objections to detention, their allegations with respect to the content and legal qualification of the evidence forming the basis for their detention, their counter-statements with respect to the considerations and assessments in their favour or to their detriment, and their requests for release before a judge or court. Accordingly, review of the applicants’ detention within the scope of the imputed offences without holding a hearing between the above-mentioned dates and their deprivation of liberty for 8 months and 18 days under such a procedure do not comply with the principles of “equality of arms” and “adversarial proceedings”.

342.  In its previous judgment, the Constitutional Court held that review of the applicant’s objection to detention without a hearing 1 month and 28 days later (Mehmet Haberal, § 128) did not constitute a breach of Article 19 § 8 of the Constitution, whereas the it concluded that the continuation of the applicants’ detention for 7 months and 2 days (Mehmet Halim Oral, § 53; Ferit Çelik, § 53) and for 3 months and 17 days (Ulaş Kaya and Adnan Ataman, § 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.

343.  As explained above, ordering the continuation of the applicants’ detention for 8 months and 18 days through examinations carried out over the case-file is in breach of the safeguards set out in Article 19 § 8 of the Constitution. It is therefore necessary to examine whether this situation is 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 time of emergency cases.

iv. Article 15 of the Constitution

344.  The examination to be made pursuant to Article 15 of the Constitution is limited to determine whether the impugned interference infringes upon the very essence of the rights and freedoms set out in paragraph 2 of the same article, whether it is in breach of the obligations stemming from the international law, and whether it is within the extent required by the emergency case (see § 186 above).

345.  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 (see § 196). It is therefore possible in times of emergency to impose measures with respect to this right contrary to the safeguards enshrined in the Constitution in time of emergency cases.

346.  Nor is this right among the non-derogable rights in the international conventions to which Turkey is a party, notably Article 4 § 2 of ICCPR and Article 15 § 2 of the ECHR, as well as the additional protocols thereto. Furthermore, it has not been found established that the interference with the applicants’ right to liberty and security is in breach of any obligation (any safeguard continued to be under protection in time of an emergency case) stemming from the international law (see §§ 199-200 above).

347.  However, the right to liberty and security is a fundamental right which precludes the State to arbitrarily interfere with the individuals’ freedom (see Erdem Gül and Can Dündar, cited-above, § 62). Not arbitrarily depriving individuals of their liberty is among the most significant underlying safeguards of all political systems bound by the principle of rule of law. Procedural safeguards afforded for the prevention of the arbitrary deprivation of liberty must also be assessed in this scope.

348.  The requirement that an interference with individuals’ freedoms must not be arbitrary is a fundamental safeguard that must be also applied when emergency administration procedures are in force. Even in time of emergencies, an individual’s deprivation of liberty in arbitrary manner or suspension of basic procedural safeguards prscribed for the prevention of arbitrary detention is contrary to the obligations stemming from international law (see §§ 138-145 above).

349.  In order to conclude that the interference with the applicants’ right to liberty and security resulting from the review of the applicant’s detention status without holding a hearing is “within the extent required by the emergency case” under Article 15 of the Constitution, this interference must not be arbitrary at the outset. On the other hand, in assessing whether the interference in question is “proportionate” or not, the period during which the applicants are deprived of 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 our country, and the circumstances emerging upon the declaration of the state of emergency must also be taken into consideration.

350.  In the course and aftermath of coup attempt of 15 July, upon the instructions of the chief public prosecutor’s office, investigations were launched throughout the country against 162.000 persons who involved in the coup attempt or who were considered to be in connection with the FETÖ/PDY even if not directly involved in the coup attempt. In this scope, over 50.000 persons were detained on remand whereas over 47.000 persons were released subject to conditional bail (see § 52 above). The investigation authorities faced with the necessity to immediately initiate and conduct investigations against tens of thousands of suspects upon such an unexpected situation, namely the coup attempt. Given also the characteristics of the FETÖ/PDY considered to be the perpetrator of this attempt (confidentiality, cell-type structuring, infiltrating public institutions and organizations, attributing holiness to itself, and acting on the basis of obedience and devotion), it is clear that these investigations are far more difficult and complex than other criminal investigations. In this respect, especially courts and the investigation authorities are to manage an unforeseeable heavy workload. Furthermore, on 16 July just after the suppression of the coup attempt, the HCJP decided, at the first stage, suspension of 2.745 judges and prosecutors from their office for having connection with the FETÖ/PDY, and at the subsequent stages, over 4.000 members of the judiciary were dismissed from office (see § 57 above).

351.  Certain measures were employed following the coup-attempt, especially in order to overcome the serious situation encountered by the investigation authorities and judicial bodies and to maintain proper functioning of the investigation and/or prosecution proceedings. Therefore, internship periods of candidate judges and prosecutors were shortened and they were promoted for office immediately, in order to back up number of judges and prosecutors on duty. Moreover, necessary administrative actions were taken for the recruitment of candidate judges and prosecutors, and the judges and prosecutors who were previously retired or resigned were enabled to be reinstated.

352.  Furthermore, 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 § 129-130 above).

353.  Accordingly, the detainees’ right to recourse to a judicial authority for ensuring their release has been maintained in time of emergency case. In this respect, pursuant to Article 104 § 1 of Law no. 5271, all detainees including those who have been detained on remand within the scope of the investigations conducted into the incidents leading to declaration of the state of emergency may request to be released at any stage of the investigation and prosecution. However, pursuant to Article 3 of the Decree Law no. 668, requests for release made by those detained on remand due to certain offences shall be concluded over the case-file within periods of maximum thirty days, along with detention reviews.

354.  Moreover, during this period, detention reviews have continued to be examined ex officio in respect of all suspects or accused persons including those detained on remand within the scope of the investigations conducted into the incidents leading to the declaration of the state of emergency, within a period of maximum 30 days, pursuant to Article 108 of Law no. 5271. Such reviews are conducted by magistrate judge at the investigation phase by and the competent court at the investigation phase. Further, it is possible to object to the decisions on detention, to dismissals of the request for release, and to continuation of detention during the state of emergency. Besides, during the state of emergency, review of detention or objection to the detention may be concluded over the case-file pursuant to Article 6 of the Decree Law no. 667.

355.  The offence of “attempting to overthrow the constitutional order” on the basis of which the applicants have been detained and other offences maintained to be committed by the applicants in the indictment (attempting to overthrow the GNAT or to prevent it from performing its duties, attempting to overthrow the Government of the Republic of Turkey or to prevent it from performing its duties, being a member of an armed terrorist organization) are 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 applicants’ detention over the case-file without holding a hearing has been ordered in line with the legal arrangements introduced by the above-mentioned Decree Laws.

356.  Having regard to the severe workload of unforeseeable nature to which the investigation authorities and judicial organs have been exposed after the coup attempt, the suspension and dismissal of a significant part of the judges and prosecutors who would tackle with this workload and ensure proper functioning of the legal system within the country (about 1/3 of all members of the judiciary) by the HCJP for being in relation and connection with the FETÖ/PDY, and the dismissal of a significant part of the assistant courthouse personnel and law enforcement officers from public office who would take part in the investigations and prosecutions including those concerning the coup attempt or the FETÖ/PDY, it must be acknowledged that carrying out detention reviews of those detained for having committed certain offences over the case-file without holding a hearing is a proportionate measure which is required by the exigency of the state of emergency.

357.  Finally, a certain part of the guardians and gendarmerie personnel in charge for ensuring safety and protection of the detainees and a significant part of the security officers who may be assigned, when necessary, to ensure safety of detainees were dismissed or suspended from public office for having a link with the FETÖ/PDY. It is also obvious that the penitentiary institutions are operating beyond capacity as tens of thousands of suspects have been detained as a result of the investigations conducted into the coup attempt and the FETÖ/PDY. As a matter of fact, many inmates have been released in progress of time upon changes made in the time periods for transfer to an open penitentiary institution and for entitlement of conditional release and probation, and, thereby, the number of inmates staying in the closed penitentiary institutions has been decreased. Given all of these facts, it must not be ignored that if thousands of persons who are detained due to offences especially those concerning the coup attempt, the FETÖ/PDY and terrorism and a great majority of whom are held in penitentiary institutions located in provincial centres are periodically taken to courthouses or places where they could be heard via the SEGBIS (the Audio and Video Information System) for their detention reviews, there may occur extremely serious security problems. In this respect, conducting detention reviews in respect of the offences in question without holding a hearing may be considered as a genuine necessity for maintaining public security in time of the state of emergency declared following the coup attempt of 15 July, which constituted a severe attack to the existence of the state and the society and to the national security.

358.  Accordingly, it has been concluded that continuation of the detention of the applicants, who have been detained on remand with the allegation of having committed an offence within the scope of the coup attempt, by virtue of decisions rendered over detention reviews made over the case-file without holding a hearing during a period of 8 months and 18 days amounts to a measure “proportionate to the extent required by the emergency case”.

359.  For these reasons, the interference, which is contrary to the safeguards set out in Article 19 § 8 of the Constitution for the individual’s right to liberty and security, complies with the criteria set in Article 15 of the Constitution which provides that fundamental rights and freedoms may be suspended or restricted in time of “state of emergency”.

IV. JUDGMENT

For these reasons, the Constitutional Court unanimously held on 20 June 2017 that

A. 1. The alleged violation of the right to liberty and security due to unlawful detention be DECLARED INADMISSIBLE, in respect of all applicants, for being manifestly ill-founded.

2. The alleged violation of the right to liberty and security due to unreasonable length of detention be DECLARED INADMISSIBLE, in respect of all applicants, for being manifestly ill-founded.

3. The alleged violation of the right to liberty and security due to the restriction on access to case-file by the applicants Birol Baki, Burhan Güneş and Salih Mehmet Dağköy, be DECLARED INADMISSIBLE for being manifestly ill-founded.

4. The alleged violation of the right to liberty and security due to conducting the review of the detention without holding a hearing be DECLARED ADMISSIBLE, in respect of the applicants Birol Baki, Burhan Güneş and Salih Mehmet Dağköy.

B. There was no breach of the right to liberty and security of the applicants Birol Baki, Burhan Güneş and Salih Mehmet Dağköy, considered in conjunction with Article 15 of the Constitution,

C. The court expenses be COVERED by the applicants.

D. A copy of this judgment be SUBMITTED to the Ministry of Justice.