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(Mehmet Hasan Altan (2) [GK], B. No: 2016/23672, 11/1/2018, § …)
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REPUBLIC OF TURKEY

CONSTITUTIONAL COURT

 

 

PLENARY

 

JUDGMENT

 

MEHMET HASAN ALTAN (2)

(Application no. 2016/23672)

 

11 January 2018


 

On 11 January 2018, the Plenary of the Constitutional Court found violations of the right to personal liberty and security and the freedoms of expression and press in the individual application lodged by Mehmet Hasan Altan (no. 2016/23672).

 

THE FACTS

[9-79] The applicant is an academician, as well as a well-known journalist and author. On the night of 15 July 2016, Turkey faced a military coup attempt. Therefore, a state of emergency was declared countrywide on 21 July 2016. The public authorities and the investigation authorities stated that the FETÖ/PDY was the plotter/perpetrator of the coup attempt.

In this scope, investigations have been conducted against the structures of the FETÖ/PDY in various fields such as education, health, trade, civil society and media in public institutions, and many persons have been taken into custody and detained.

The İstanbul Chief Public Prosecutor’s Office initiated an investigation in relation to the media structure of the FETÖ/PDY against seventeen suspects, including the applicant, many of whom were journalists, authors and academicians.

In this scope, the applicant was taken into custody on 10 September 2016 and a search warrant was issued on his house. During the search, a bank card issued by the Bank Asya in the name of the applicant and six pieces of 1 USD banknote –two of them were (F) series– were seized. The applicant was held in custody until 21 September 2016.

On 21 September 2016, the Istanbul Chief Public Prosecutor’s Office took the applicant’s statement. On 22 September 2016, the Magistrate Judge’s Office ordered the applicant’s detention on remand for attempting to overthrow the Government of the Republic of Turkey or prevent it from performing its duties and for membership of a terrorist organization.

The applicant appealed against the detention order and requested the judicial review of his appeal at a hearing. However, the Istanbul 1st Magistrate Judge’s Office reviewed the applicant’s appeal without hearing and dismissed it with no further right of appeal.

On 12 April 2017, the Istanbul Chief Public Prosecutor’s Office indicted the applicant for the offences of attempting to overthrow the Government of the Republic of Turkey or prevent it from performing its duties, attempting to overthrow the constitutional order and committing crime on behalf of a terrorist organization without being a member of it.

The case against the applicant is still pending before the 26th Chamber of the Istanbul Assize Court. At the hearing of 11 December 2017, the Public prosecutor submitted his opinion on the merits. He requested that the applicant be punished for attempting to overthrow the constitutional order. The applicant is still detained on remand.

V. EXAMINATION AND GROUNDS

80. The Constitutional Court, at its session of 11 January 2018, examined the application and decided as follows.

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

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

81. The applicant claimed that his right to personal liberty and security had been violated, stating that he had been taken into custody due to the accusations that were unsubstantial and fabricated, which was unlawful; that although the detention period could not exceed four days even in terms of terrorist acts and collective crimes, the thirty-day detention period applied during the state of emergency period was unacceptable; that his having been held in custody for twelve days was disproportionate; and that he had been held in custody for a long time arbitrarily during this period and therefore was not brought before a judge.

82. The Ministry, in its observations, specified that the length of the period during which the applicant had been held in custody was necessary and it proportionate to the circumstances, given the gravity of the threat of coup and in terms of the combat against terrorism, within the scope of the state of emergency.

83. The applicant, in his counter-statements, claimed that all the evidence against him within the scope of the investigation were solely his words and articles, that the investigation was not complicated and that therefore his detention period could not be regarded as reasonable.

b. The Court’s Assessment

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

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

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

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

86. Pursuant to the said provisions, in order for an individual application to be lodged with the Court, ordinary legal remedies must first be exhausted. Respect for fundamental rights and freedoms is the constitutional duty of all organs of the State, and it is the duty of administrative and judicial authorities to redress the violations of rights that occur due to the neglect of this duty. For this reason, it is required that the alleged violations of fundamental rights and freedoms be first brought before the inferior courts, evaluated by these authorities and then resolved by them. Accordingly, individual application to the Constitutional Court is a remedy of subsidiary nature which may be resorted to in case of inferior courts’ failure to redress the alleged violations (see Ayşe Zıraman and Cennet Yeşilyurt, no. 2012/403, 26 March 2013, §§ 16 and 17).

87. Article 141 § 1 of Law no. 5271 provides that individuals who; have been arrested without or with an arrest warrant against the provisions foreseen by the statutes, or for whom the period of arrest has been extended against the regulations listed in statutes; have not been taken before a judge within the period of custody, as foreseen in the statute; even though have been arrested in conformity with the statutes, were not tried within a reasonable time before the court and did not receive a judgment within a reasonable time may claim their pecuniary and non-pecuniary damages from the State. Given this provision, there is a legal remedy in this regard. Besides, Article 142 § 2 thereof, which regulates the conditions for the claims for compensation provides, that a claim for compensation may be filed within three months after the notification of the final decisions or judgments to the related parties, or at any case within one year after the final decision or judgment (see Zeki Orman, no. 2014/8797, 11 January 2017, § 27).

88. As regards the allegation that the length of the period of detention prescribed by the law had been exceeded as well as the alleged unlawfulness of arrest and custody, the Court has concluded, referring to the relevant case-law of the Court of Cassation, that although the primary judicial proceedings were not concluded on the date of examination of the individual application, the action for compensation stipulated in Article 141 of Law no. 5271 was an effective legal remedy to be exhausted (see Hikmet Kopar and Others [Plenary], no. 2014/14061, 8 April 2015, §§ 64-72; Hidayet Karaca [Plenary], no. 2015/144, 14 July 2015, §§ 53-64; Günay Dağ and Others [Plenary], no. 2013/1631, 17 December 2015, §§ 141-150; İbrahim Sönmez ve Nazmiye Kaya, no. 2013/3193, 15 October 2015, §§ 34-47; and Gülser Yıldırım (2) [Plenary], no. 2016/40170, 16 November 2017, §§ 92-100).

89. Finding of a violation as a result of the individual application lodged by an individual who has been taken into custody and subsequently detained on the basis of a criminal charge due to alleged unlawfulness of his custody -as regards the termination of deprivation of liberty- does not have a bearing on the applicant’s personal situation. That is because, even if the custody order is unlawful and the length of the custody is unreasonable, a finding of unlawfulness as well as a violation in this regard will not per se ensure the release of a “detainee” as his detention had been ordered by the trial judge. Therefore, a probable violation judgment to be rendered through an individual application may give rise to an award of compensation in favour of the applicant if requested (see Günay Dağ and Others, § 147; and İbrahim Sönmez and Nazmiye Kaya, § 44).

 90. In the present case, the alleged unlawfulness of the decision ordering the applicant’s custody as well as the reasonableness of the length of the custody may be examined through an action to be brought under Article 141 of Code no. 5271. As a matter of fact, the approach taken by the Court of Cassation (see decision of the 12th Criminal Chamber of the Court of Cassation dated 1 October 2012 and no. E.2012/21752, K.2012/20353; and Günay Dağ and Others, § 145) indicates that as regards such claims, there is no need to wait for a final decision on the merits of the case. If the custody order is found to be unlawful as a result of this action, the applicant may be also awarded compensation.

 91. It has been accordingly concluded that the remedy provided by Article 141 of the Code of Criminal Procedure no. 5271 (“the CCP”) is an effective remedy capable of offering redress for the applicant’s complaints; and that the examination by the Court of the individual application lodged without exhaustion of this ordinary remedy does not comply with the “subsidiary nature” of the individual application system.

 92. Besides, any individual who has been arrested or taken into custody is entitled, by virtue of Article 91 § 5 of the CCP, to file a challenge with the magistrate judge against the public prosecutor’s written order for his arrest or custody in order to secure his immediate release. According to the CCP, such a challenge may be filed by not only the individual arrested, but also his defence counsel or legal representative, spouse or first-degree or second-degree relatives by blood. There is no information or document in the application form and annexes thereto, which indicates that the applicant challenged the unlawfulness of his arrest or custody before the magistrate judge and that his challenge did not lead to any outcome (for the Court’s assessment in the same vein, see Gülser Yıldırım (2), § 101).

 93. For these reasons, this application has been declared inadmissible for non-exhaustion of domestic remedies in so far as it relates to the alleged unlawfulness of the applicant’s custody, since it has been lodged without exhausting the administrative and/or judicial legal remedies.

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

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

94. The applicant claimed; that he had first been included in the lists of "journalists to be detained" in some Twitter accounts; that then some news targeting him started to appear in pro-government newspapers; that he was tried to be associated with the coup attempt in these news with the same content and nature; and that he was subsequently taken into custody and detained. According to the applicant, the impugned news stated that he had known about the coup attempt beforehand and had given messages about it on a program broadcast on 14 July. The applicant argued that his critical speeches on a program broadcast on a legal television channel did not constitute a crime and that regarding his relevant speech as a call for coup had been a strained interpretation.

95. The applicant claimed that the charges against him contained no evidence to the effect; that he had taken part in a hierarchical structure, that he had received orders or instructions from someone or given instructions to others, or that he had helped or provided support to a member of the organisation in some way. The only evidence to allegedly support his detention on remand was his words and articles.

96. The applicant argued that he had been charged on account of one of his expressions that had been taken apart from the context; that he had written the issues he expressed in the said program in his books for a long time; and that he had many critical articles about the terrorist organization he was allegedly associated with.

97. The applicant further stated that there were no grounds substantiating his detention; that all the evidence had been collected; that there were no suspicion of fleeing; that the detention order did not include any information as to why the measures regarding conditional bail would be insufficient; and that detention order as well as the decisions on dismissal of the challenges against detention lacked justifications.

98. In this regard, the applicant maintained that his right to personal liberty and security had been violated and thus claimed compensation.

99. In addition, the applicant argued that he was detained for political reasons other than those stipulated in the Constitution. The purpose of the relevant measure was to punish him due to his criticism of the Government and the President's governance. Therefore, the applicant also claimed that Article 18 of the Constitution had also been violated in conjunction with the right to personal liberty and security.

100. The Ministry, in its observations, specified that the investigation against the applicant was conducted within the scope of the investigations related to the FETÖ/PDY that staged the coup attempt of 15 July; that although the coup attempts of the said organization, through its elements within the security directorate and the judiciary, on 17 and 25 December 2013 were known to the public, the applicant voluntarily took part in the media structure of the organization in order to create public opinion in favour of the FETÖ/PDY terrorist organization; that it was understood from the content of his articles and publications subject to the investigation that he had been aware of the coup attempt of 15 July beforehand; that he had broadcast with a view to legitimizing the coup attempt before the public, thus acting in line with the objective of the organisation; and that such evidence constituted strong suspicion of guilt.

101. The Ministry, referring to the similar judgments of the Constitutional Court and the European Court of Human Rights (“the ECHR”), specified that the applicant had been detained on remand within the scope of the state of emergency measures and that it had been necessary in terms of combating terrorism and proportionate to the material fact given the gravity of the threat of coup.

102. The applicant, in his counter-statements, argued that the charges against him were based on the sole interpretation of intention and thought.

b. The Court’s Assessment

103. 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.”

104. Article 15 of the Constitution, titled “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.”

105. Article 19 § 1 and the first sentence of Article 19 § 3 of the Constitution, titled “Right to personal liberty and security”, read as follows:

“Everyone has the right to personal liberty and security.

...

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

106. The applicant’s allegations in this part should be examined within the scope of the right to personal liberty and security and from the standpoint of Article 19 § 3 of the Constitution. The examination of the Constitutional Court will be limited to the assessment of the lawfulness of the applicant’s detention on remand, independently of the conducting of investigation and prosecution against the applicant and the possible results of the proceedings. In addition, the issue as to whether Article 19 § 3 of the Constitution have been violated is to be examined in the particular circumstances of each application.

i. Applicability

107. The Court, in its judgment of Aydın Yavuz and Others (see §§ 187-191 ibidem), specified that in examining the individual applications against emergency measures, it would take into account the protection regime set out in Article 15 of the Constitution with respect to fundamental rights and freedoms. Accordingly, besides the existence and declaration of a state of emergency, in cases where the measure constituting an interference with the fundamental rights and freedoms –subject of the individual application– is related to the state of emergency, then the application will be examined in accordance with Article 15 of the Constitution.

108. In the aftermath of the coup attempt of 15 July 2016, the Council of Ministers, meeting under the chairmanship of the President, decided to declare a state of emergency on 21 July 2016; and then, the state of emergency was extended many times. The main reason for declaration of the state of emergency was the coup attempt (see Aydın Yavuz and Others, §§ 224, 226). It is seen that the declaration of state of emergency aimed at eliminating the threat and danger posed by the FETÖ/PDY, which was considered to be behind the said attempt, as well as the danger arising from the coup attempt (see Aydın Yavuz and Others, §§ 48, 229). As a matter of fact, the assessments of the public authorities as well as the investigation authorities to the effect that the organisation behind the coup attempt was FETÖ/PDY were based on factual grounds (see Aydın Yavuz and Others, § 216).

109. On the date when the applicant was detained on remand, the state of emergency was in force in Turkey. It was stated in the detention order that the applicant had committed an offence within the scope of the coup attempt and that he was a member of the FETÖ/PDY, the organisation behind the coup attempt. Therefore, it is seen that the charges underlying the applicant’s detention on remand were related to the events that had led to the declaration of state of emergency.

110. In this respect, the lawfulness of the detention of the applicant, who had been held on account of an accusation related to the events leading to the declaration of a state of emergency in Turkey, will be reviewed under Article 15 of the Constitution. Prior to such review, whether the applicant’s detention on remand was in breach of the guarantees set forth in Articles 13, 19 and in other Articles of the Constitution will be determined, and if there is any violation, it will be assessed whether the criteria set forth in Article 15 of the Constitution rendered such a violation lawful (see Aydın Yavuz and Others, §§ 193-195, 242).

ii. Admissibility

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

iii. Merits

(1) General Principles

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

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

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

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

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

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

118. In cases where serious allegations indicate, or circumstances of the present case reveal, that the acts imputed to suspect or accused fall within the ambit of fundamental rights and freedoms that are sine qua non for a democratic society such as the freedom of expression, the freedom of the press, the right to trade-union freedom and the right to engage in political activities, judicial authorities ordering detention must act with more diligence in determining the strong suspicion of guilt. The question as to whether due diligence has been shown is subject to the Court’s review (see Gülser Yıldırım (2), § 116, and for a violation judgment rendered at the end of such review, see Erdem Gül and Can Dündar [Plenary], no. 2015/18567, 25 February 2016, §§ 71-82; and for inadmissibility decisions, see Mustafa Ali Balbay, § 75; Hidayet Karaca, § 93; İzzettin Alpergin [Plenary], no. 2013/385, 14 July 2015, § 46; and Mehmet Baransu (2), no. 2015/7231, 17 May 2016, §§ 124, 133 and 142).

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

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

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

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

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

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

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

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

(2) Application of Principles to the Present Case

127. The applicant was taken into custody on 10 September 2016 and detained, after his inquiry, by the İstanbul 10th Magistrate Judge on 22 September 2016.

128. In the present case, it must be primarily ascertained whether the applicant’s detention had a legal basis. The applicant’s detention was ordered pursuant to Article 100 of Code no. 5271 for attempting to abolish the government of the Republic of Turkey or to prevent it from fulfilling its duties and membership of an armed terrorist organisation, within the scope of an investigation into the organisation of the FETÖ/PDY in the media. Accordingly, the applicant’s detention on remand had a legal basis.

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

130. There is no doubt that on 15 July 2016 there occurred a military coup attempt in Turkey and that the public authorities as well as investigation authorities considered on the basis of factual grounds that the FETÖ/PDY was the plotter of the impugned attempt (see Aydın Yavuz and Others, §§ 12, 24, 32).

131. In this scope, it is known that investigations were carried out against the structuring of the FETÖ/PDY in different fields and that many persons were taken into custody and detained on remand. Within the scope of the investigations into the structuring of the FETÖ/PDY in the media, the applicant was also detained and a criminal case was initiated against him.

132. Referring to the facts that the applicant constantly made statements in the media outlets of the FETÖ/PDY, the perpetrator of the coup attempt of 15 July 2016, and in line with the purposes of this organization, thereby paving the way for the coup attempt, and that he explicitly made a call for coup during his speech on a television programme, the İstanbul 10th Magistrate Judge ordered the applicant’s detention on remand considering the strong suspicion of guilt.

133. The articles and speeches on account of which the applicant was detained on remand consisted of his article titled “Balyoz’un Anlamı (The Meaning of Sledgehammer)” that was published in Star, daily newspaper, in 2010, his speech in a program broadcast on Can Erzincan TV the day before the coup attempt, and his article titled “Türbülans (Turbulence)” that was published on his own website on 20 July 2016.

134. It was specified in the detention order that in his speech titled “Balyoz’un Anlamı”, the applicant aimed at creating a public opinion in accordance with the aims of the organization by making statements praising the Sledgehammer investigation that was stated by the investigation authorities to have been manipulated with fabricated documents. However, it was not explained which statements of the applicant in the said program were of that nature. As stated in the indictment; in the aforementioned programs, upon the host of the program, A.N.I., stated that many professional organizations came together regarding a lawsuit filed against A.H.A., a guest of the program, in connection with the news about the Sledgehammer case published in Taraf daily newspaper, the applicant used expressions such as "In the world, in the whole world. International". It is seen that the applicant has no other statement regarding the Sledgehammer case.

135. Besides, the article titled "Balyoz'un Anlamı" had been published in a national daily newspaper called Star. There is no claim that the aforementioned newspaper was one of the media outlets of the FETÖ/PDY. In addition, the aforementioned article was published in 2010. During this period, the investigation authorities did not have any finding or claim that the FETÖ/PDY was a criminal organization and that it was known to the public. On the contrary, the investigation authorities argued that the applicant had been in a position to know the illegal aspect of this structure after the "December 17-25 investigations" that had been carried out in the last period of 2013, where the real objective of the FETÖ/PDY had been revealed. The investigation authorities failed to put forward factual grounds leading them to conclude that the impugned article which had been written three years before the aforementioned investigations and concerned a case that had been at the top of the agenda at the material time, had been written in accordance with the aims of the FETÖ/PDY. Besides, in the same period, a large number of news, articles and comments were published in the written and visual media, which were favourable and unfavourable. There is also no information or document that an investigation had been launched against the applicant at the time when the said article was written and afterwards.

136. In the detention order against the applicant, it was maintained that in his speech in the programme broadcast on Can Erzincan TV, the applicant tried to create a public opinion to stage a coup and explicitly made a call for coup. The grounds for such an accusation were his statements “… There is probably another structure in the Turkish State, which documents and monitors all these developments more than the outside world does. In other words, it is not clear when and how this structure will take its face out of the bag…”.

137. A military coup attempt occurred the day after this program was broadcast. In the detention order, this situation was accepted as an indication that the applicant had been aware of the coup attempt, in advance, when he had made the statements which were the subject of the crime and regarded as a call for coup.

138. However, the applicant asserted that he did not know that a coup would be made, nor did he make a call for coup, that his abovementioned words were distorted to be regarded as an offence and that the word “structure” in his speech had referred to the State organs.

139. It is seen that in this program named “Özgür Düşünce” which was co-hosted by the applicant and A.N.I., heavy criticisms were expressed against the Government on different issues and it was especially emphasized that the Government did not comply with the law. During the program, while A.N.I. and A.H.A. who participated in the program as a guest were talking about the fact that the speeches of some members of the Government and senior bureaucrats were recorded through illegal wiretapping and audio surveillance and broadcast on the internet by some countries, the applicant participated in the dialogue. The applicant first stated that the wiretaps might not have been made through only technological means, and that it was not possible to take control of the state by illegal methods, referring to the political governance in force, and then expressed some statements which were subject of the imputed offence.

140. Regard being had to the content and context of the applicant’s words, the words of other speakers, and to the thoughts stated therein as a whole, it is difficult to regard, without hesitation, these words as a call for the coup and to acknowledge that the applicant had uttered them, being aware of the coup attempt to take place the next day, for the purpose of bracing the public for it. Otherwise, meanings beyond the one which may be attributed by an objective observer may be ascribed to the words uttered by the applicant. As a matter of fact, during the speeches delivered through the program, it was forecasted that the Government might be overthrown, at or before the elections to be held two years later, by a new political party which would be established by some of the members of parliament from the ruling part together with another politician.

141. Besides, it must be also borne in mind that the impugned words were uttered through a TV program in a live broadcast, and therefore, it is not possible to re-formulate, change or withdraw the expressions used in such an atmosphere before announcing them to the public.

142. Regard being had to these considerations, the investigation authorities failed to demonstrate the factual basis for the assertion that the applicant had uttered the words in order to pave the way for the coup attempt.

143. It was stated in the detention order that –apart from the program broadcast on Can Erzincan TV the day before the coup attempt– the applicant had also paved the way for the coup attempt by constantly making statements in the media outlets of the FETÖ/PDY in accordance with the aims of this organisation. However, neither the detention order nor the indictment contained any explanation as to which articles and statements of the applicant in which media outlets were the subject of the accusations against him.

144. Regarding the existence of a strong suspicion of guilt in the detention order, it was also indicated that the applicant had acted in line with the aim of the FETÖ/PDY with his articles in various media outlets (the impugned articles were not specified). In this scope, the article titled “Türbülans”, which was published by the applicant on his own website on 20 July 2016 was referred to in the indictment.

145. In the article, the applicant expressed his doubts as to whether the coup attempt had been conducted only by the members of the FETÖ/PDY, as well as criticized the measures taken in the aftermath of the coup attempt. It is known that after the coup attempt, some groups also voiced opinions regarding the origin of the said attempt and that other factors might have acted together with the FETÖ/PDY. Opinions which are different from the public authorities’ considerations and those of the majority may be considered to constitute an offence with reference to the aim of the person expressing them only when this aim is demonstrated with concrete facts other than the contents of the expressions. However, the investigation authorities failed to demonstrate the facts which would form the opinion that the applicant had acted in line with the aims of the FETÖ/PDY by writing the article.

146. In reaching the conclusions that the applicant had acted in line with the aims of the FETÖ/PDY and that he had a link with this organization, the investigation authorities relied on the abstract expression of a witness, one dollar banknote found during the search carried out in the applicant’s house, non-inclusion of the applicant in any investigation conducted by the judicial structure of the FETÖ/PDY, his phone conversations —time and content of which are not specified— with certain persons, and his account in the Bank Asya. However, the investigation authorities failed to demonstrate any concrete fact which would refute the applicant’s defence submissions —that may be regarded as a reasonable version of events—about the allegations pertaining to banknote, bank account, non-inclusion in an investigation and phone conversation. Nor did the witness, in his statement, provide any information about a concrete action performed by the applicant.

147. Finally, in his opinion as to the merits, the public prosecutor also relied, as criminal evidence, on certain correspondences exchanged through “ByLock”. These correspondences were exchanged among persons other than the applicant. In these correspondences, there are certain expressions with respect to the applicant. However, given the particular circumstances of the case and the content of the expressions used with respect to the applicant, such expressions cannot per se be considered as a strong indication of guilt.

148. In this respect, it has been concluded that “the strong indication of guilt” could not be sufficiently demonstrated in the present case.

149. In view of this conclusion, it is not deemed necessary to examine whether there were grounds for detention, whether the detention was proportionate and the other allegations regarding the unlawfulness of the applicant’s detention.

150. Consequently, it has been concluded that the applicant’s detention in the absence of strong indication of guilt was in breach of the guarantees set forth in Article 19 § 3 of the Constitution in the ordinary period regarding the right to personal liberty and security.

151. Besides, it is necessary to examine whether the relevant measure was legitimate within the scope of Article 15 of the Constitution which entails the suspension and the restriction of exercise of the fundamental rights and freedoms in times of emergency.

iv. Application of Article 15 of the Constitution

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

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

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

155. 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, § 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. The requirement that an interference with individuals’ freedoms must not be arbitrary is a fundamental guarantee that must be also applicable when emergency administration procedures are in force (see Aydın Yavuz and Others, §§ 347).

156. One of the primary guarantees that will prevent the arbitrary interference with the individuals' right to personal liberty and security by detention is to demonstrate the strong indication of guilt. Since the existence of such an indication is a prerequisite for detention, the acceptance to the contrary will render meaningless all guarantees regarding the right to personal liberty and security. Accordingly, regardless of the reasons, detention of the individuals in the absence of indication of guilt, even in a state of emergency, cannot be regarded as a measure “required by the exigencies of the situation”.

157. In the present case, the Court has concluded that the investigation authorities ordered the applicant’s detention without putting forward concrete facts indicating the applicant’s guilt. Therefore, the interference with the applicant’s right to personal liberty and security, which was in breach of the safeguards provided in Article 19 § 3 of the Constitution, cannot be considered legitimate under Article 15 of the Constitution regulating the suspension and restriction of the fundamental rights and freedoms during “the state of emergency”.

158. Consequently, the Constitutional Court has found a violation of the applicant’s right to personal liberty and security under Article 19 § 3 of the Constitution, also in conjunction with Article 15 of the Constitution.

Mr. Burhan ÜSTÜN, Mr. Serdar ÖZGÜLDÜR, Mr. Osman Alifeyyaz PAKSÜT, Mr. Kadir ÖZKAYA, Mr. Rıdvan GÜLEÇ and Mr. Recai AKYEL did not agree with this conclusion.

159. In addition, considering the detention period and the available documents, it has been concluded that the applicant’s complaint that he had allegedly been detained for political reasons other than those stipulated in the Constitution lacked sufficient grounds.

3. Alleged Lack of Independence and Impartiality of the Magistrate Judges

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

160. The applicant claimed that the magistrate judges making decisions regarding his detention on remand did not comply with the principles of independence and impartiality of the courts/judges, and that the relevant courts acted as a means directed by the executive.

161. The applicant further claimed that the İstanbul 1st Magistrate Judge, the authority that reviewed his challenge against detention, had previously ordered the detention of his brother, and that therefore, the review of his detention by the relevant judge who made a decision about a similar case and legal matter was in breach of his right to an effective remedy.

162. The Ministry, in its observations, stated that these judges, as in all other courts, would act in compliance with the principles of independence and impartiality of judges, and that there was no element leading to the conclusion that they would not be able to act impartially.

163. The applicant, in his counter-statements, made no further explanation concerning the allegations in this regard.

b. The Court’s Assessment

i. Applicability

164. The state of emergency continued on the date of the applicant’s detention on remand, whom was accused within the scope of the events leading to the declaration of a state of emergency. In this respect, whether the authorities ordering the applicant’s detention were independent and impartial will be reviewed under Article 15 of the Constitution. During this review, it will first be determined whether the incumbent authority ordering the applicant’s detention had acted in breach of the guarantees set forth in the Constitution, especially Article 19 thereof, and if there is any violation, it will be assessed whether the criteria set forth in Article 15 of the Constitution rendered such a violation lawful (see Aydın Yavuz and Others, §§ 193-195, 242).

ii. Admissibility

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

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

167. Although the impartiality of the courts is not explicitly mentioned in Article 36 of the Constitution, the right to have one’s case heard by an impartial tribunal is an implicit element of the right to a fair trial in accordance with the Constitutional Court's case-law. In addition, considering that the impartiality and independence of the courts are two complementary elements; pursuant to the principle of the integrity of the Constitution, it is clear that Articles 138, 139 and 140 of the Constitution should also be taken into account in the assessment of the right to be heard by an impartial tribunal (see Tahir Gökatalay, no. 2013/1780, 20 March 2014, § 60)

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

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

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

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

172. For these reasons, as it is clear that there has been no violation with regard to the applicant’s allegation that the magistrate judges ordering his detention had not been independent and impartial, the Court has found this part of the application inadmissible for being manifestly ill-founded.

173. Accordingly, it is seen that the detention order issued by the magistrate judge against the applicant was not in breach of the guarantees enshrined in the Constitution, especially in Articles 19, 37, 138, 139 and 140 thereof; therefore, no separate examination is needed under the criteria laid down in Article 15 of the Constitution.

4. Alleged Restriction of Access to the Investigation File

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

174. The applicant claimed that his right to personal liberty and security had been violated, stating that he could not be fully informed of the allegations against him due to the restriction order regarding the investigation file, and that he was therefore deprived of the opportunity to effectively challenge his detention.

175. The Ministry, in its observations, stated; that the applicant had been provided with a detailed information about the accusations against him and thus given the opportunity to defend himself in the presence of his lawyer; that the allegations underlying his detention on remand had been asked to him; and that the applicant could duly consider these allegations. According to the Ministry, the applicant could adequately consider this evidence and could also challenge them effectively. For these reasons, the Ministry noted that the applicant’s relevant complaint should be declared manifestly ill-founded.

176. The applicant, in his counter-statements, made no further explanation concerning the allegations in this regard.

b. The Court’s Assessment

177. Article 19 § 8 of the Constitution, titled “Right to personal liberty and security” provides 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”.

178. The Court has found it appropriate to examine the applicant’s complaints in this part within the scope of the right to personal liberty and security enshrined in Article 19 § 8 of the Constitution.

i. Applicability

179. The charges against the applicant, which were included in the investigation file where the restriction order complained of by the applicant had been issued, were related to the events leading to the declaration of a state of emergency in Turkey. Therefore, whether the impugned restriction had been lawful, in other words, its effects on the applicant’s right to personal liberty and security will be reviewed within the scope of Article 15 of the Constitution. During this review, whether the impugned restriction was in breach of the guarantees set forth in Article 19 of the Constitution will be determined, and if there is any violation, it will be assessed whether the criteria set forth in Article 15 of the Constitution rendered such a violation lawful (see Aydın Yavuz and Others, §§ 193-195, 242).

ii. Admissibility

(1) General Principles

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

181. Besides, it is set forth in Article 19 § 8 of the Constitution that a person deprived of his liberty for any reason is entitled to apply to the competent judicial authority for speedy conclusion of proceedings regarding his situation and for his immediate release if the restriction imposed upon him is not lawful. Even if it is not possible to offer all safeguards inherent in the right to a fair trial through the procedure laid down in this provision, all the safeguards applicable to the alleged conditions of detention are to be secured through a judicial decision (see Mehmet Haberal, no. 2012/849, 4 December 2013, §§ 122, 123).

182. In this respect, in examining the requests for continuation of detention or for release, the principles of “equality of arms” and “adversarial proceedings” must be complied with (see Hikmet Yayğın, no. 2013/1279, 30 December 2014, § 30). The principle of equality of arms means that parties of the case must be subject to the same conditions in terms of procedural rights and requires that each party be afforded a reasonable opportunity to present his case under conditions that do not place him at a disadvantage vis-à-vis his opponent. The principle of adversarial proceedings requires that the parties must be given the opportunity to have knowledge of and comment on the case file, thereby ensuring the parties to actively participate in the proceedings (see Bülent Karataş, no. 2013/6428, 26 June 2014, §§ 70 and 71).

183. Any person arrested must be told, in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness within the scope of Article 19 § 8 of the Constitution. However, Article 19 § 4 of the Constitution does not entail that the information provided to the person arrested or detained in the course of his arrest or detention must embody a full list of imputed offences, in other words, all evidence forming a basis for the charges against him must be notified or disclosed (see Günay Dağ and Others, § 175).

184. If the applicant is asked, during the process when his statement or defence submissions are taken, questions about the content of documents access to which has been restricted or he makes a reference to the content of such documents in raising a challenge against his detention order, it must be accepted that the applicant has had access to the documents underlying his detention and had sufficient information about the contents, and thus he has had the opportunity to challenge the reasons of his detention in a sufficient manner. In such a case, the person concerned has sufficient knowledge about the contents of the documents underlying his detention (see Hidayet Karaca, § 107).

(2) Application of Principles to the Present Case

185. It was maintained in the application form that there was a confidentiality order regarding the investigation file, but there was no explanation as to the date on which this order was issued by the prosecutor's office or by which court. However, it has been understood that the applicant applied to the İstanbul Chief Public Prosecutor's Office on 11 October 2016, requesting that the restriction order be lifted. The Ministry submitted no observation to the effect that there was no restriction order regarding the investigation file; on the contrary, it stated that the existence of such an order did not preclude the applicant's right to an effective remedy against his detention on remand.

186. There is no document or information as to whether the restriction order was subsequently lifted. However, it appears that by 3 May 2016 when the indictment was accepted by the 26th Chamber of the İstanbul Assize Court, the impugned restriction had automatically expired pursuant to Article 153 § 4 of Code no. 5271.

187. The accusations against the applicant as well as the facts underlying his detention were; his speech on a television programme that was broadcast the day before the coup attempt of July 15; his not being included in the investigation regarding a foundation that had been under surveillance, despite his being found to have visited it; his article titled “Balyoz'un anlamı” that was published in 2010; and that one dollar banknote with series (F) –stated to have been given by Fetullah Gülen or senior heads of the organisation in order to ensure recognition within the FETÖ/PDY– which was possessed by the applicant. The contents of these accusations had been explained to the applicant during the statement-taking process before the İstanbul Chief Public Prosecutor’s Office.

188. It appears from the motion requesting the applicant’s detention, which was issued by the İstanbul Chief Public Prosecutor’s Office on 21 September 2016, that a comprehensive explanation as to the accusations brought against the applicant was made. In this respect, certain information and evidence concerning the imputed acts were laid down therein, and assessments concerning the legal qualification of these acts were also made. This letter was read out to the applicant also by the İstanbul 10th Magistrate Judge before his interrogation. It was also indicated in the interrogation report that the imputed acts were read out and explained to him. During his interrogation, the applicant gave information about the imputed acts and answered the questions that were put to him. In its detention order, the magistrate judge also made comprehensive assessments about the accusations (imputed acts) forming a basis for his detention. Moreover, in the applicant’s seventeen-page petition whereby his detention was challenged, detailed defence submissions as to the procedural and substantive aspects were provided. It has been therefore revealed that the applicant and his lawyers had access to the imputed acts as well as information underlying his detention both prior and subsequent to the interrogation.

189. 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 applicant or to his lawyers and that the applicant was provided with the opportunity to make his defence accordingly, it could not be accepted that the applicant could not effectively challenge his detention due to the restriction order imposed during the investigation process that lasted a few months.

190. For the reasons explained above, as it is clear that there has been no violation in terms of the applicant’s allegation that he could not effectively challenge his detention due to the restriction order, this part of the application must be declared inadmissible for being manifestly ill-founded.

191. Accordingly, as it is seen that the interference with the applicant’s right to personal liberty and security by the restriction order within the investigation file was not in breach of the safeguards provided in the Constitution (in particular, Article 19 § 8), no further examination is required in accordance with the criteria specified in Article 15 of the Constitution.

5. Alleged Review of Detention without Hearing

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

192. The applicant claimed that his right to personal liberty and security had been violated, stating that his challenge against detention had been reviewed without a hearing, which was in breach of his right to an effective remedy/challenge.

193. The Ministry, in its observations, stated that if each review of detention had been carried out by holding a hearing, the system would have been blocked, and that the applicant had the opportunity to make any legal evaluations regarding the grounds for detention and to challenge them.

194. The applicant, in his counter-statements, made no further explanation concerning the allegations in this regard.

b. The Court’s Assessment

i. Applicability

195. The state of emergency continued at the time when the applicant's objection –who were accused within the scope of the events leading to the declaration of a state of emergency in Turkey– to his detention on remand was reviewed. In this respect, the effect of the review of the applicant’s detention without holding a hearing on the right to personal liberty and security will be reviewed under Article 15 of the Constitution. During this review, whether the impugned restriction was in breach of the guarantees set forth in Article 19 of the Constitution will be determined, and if there is any violation, it will be assessed whether the criteria set forth in Article 15 of the Constitution rendered such a violation lawful (see Aydın Yavuz and Others, §§ 193-195, 242).

ii. Admissibility

(1) General Principles

196. One of the fundamental safeguards deriving from Article 19 § 8 is the right to request for an effective review of detention before a judge. Indeed, a very high importance must be attached to this safeguard considering that this is the primary legal means for a person deprived of his liberty to effectively challenge his or her detention. In this way, a detained person is given the opportunity to discuss the reasons led to his/her detention and the assessment of the investigation authorities in person before a judge or a court. Therefore, a detained person should be able to exercise this right by being heard before a judge at certain reasonable intervals (see Firas Aslan and Hebat Aslan, no. 2012/1158, 21 November 2013, § 66; and Devran Duran, § 88).

197. Moreover, decisions on detention that is rendered either ex officio or upon request within the scope of Article 101 § 5 or Article 267 of Law no. 5271 may be challenged before a court (see Süleyman Bağrıyanık and Others, § 269). As regards the review of detention orders, Article 271 sets forth that the challenge shall be in principle concluded without a hearing; however, if deemed necessary, the public prosecutor and subsequently the defence counsel may be heard. Accordingly, in case that a review of detention or objection to detention is made through a hearing, the suspect, the accused or the defence counsel must be heard (see Devran Duran, § 89).

198. 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 (see Firas Aslan and Hebat Aslan, § 73; and Devran Duran, § 90).

(2) Application of Principles to the Present Case

199. The applicant was detained on remand by the İstanbul 10th Magistrate Judge on 22 September 2016, and he challenged this decision on 28 September 2016. In his petition, the applicant requested that the review be made with a hearing. However, the İstanbul 1st Magistrate Judge dismissed the applicant’s challenge on 10 October 2016 over the case-file, without holding a hearing.

200. Accordingly, there are only eighteen days between the date on which the applicant was heard by the İstanbul 10th Magistrate Judge, the statements and requests of the applicant and his lawyers were received orally, and the detention order was read out to the applicant (22 September 2016) and the date on which the İstanbul 1st Magistrate Judge reviewed the applicant’s challenge against his detention without a hearing (10 October 2016).

201. In one of its previous judgments, the Constitutional Court held that review of the challenge against detention without a hearing 1 month and 28 days later was not in breach of Article 19 § 8 of the Constitution (see Mehmet Haberal, § 128).

202. All decisions regarding detention, which are made ex officio or upon request, may be challenged before another court. In such a system; in the present case, the review of all challenges by holding hearings will mean that the proceedings regarding detention are repeated before the appeal court. Therefore, the review of the applicant’s challenge against his detention, which was carried out eighteen days after his detention had been ordered, without holding a hearing cannot be said to have been in breach of the principle of adversarial proceedings.

203. For these reasons, since it is clear that there was no violation regarding the applicant’s allegation that the review of his appeal against the detention had been made without a hearing, this part of the application must be declared inadmissible as being manifestly ill-founded.

204. Accordingly, as it is seen that the interference with the applicant’s right to personal liberty and security through the review of his challenge against his detention on remand without a hearing was not in breach of the safeguards provided in the Constitution (in particular, Article 19 § 8), no further examination is required in accordance with the criteria specified in Article 15 of the Constitution.

B. Alleged Violations of the Freedoms of Expression and the Press

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

205. The applicant claimed that the evidence against him within the scope of the investigation and underlying his detention on remand were only his articles and statements on a television program, and that his detention on remand for these articles and statements was in breach of the freedoms of expression and the press.

206. Referring to the decisions already rendered by the Court, the Ministry indicated in its observations; that the applicant’s complaint that he had been detained due to his statements falling within the ambit of his freedom of expression fell essentially under the scope of his alleged detention in the absence of any strong suspicion of his guilt; that the applicant’s detention had a legal basis; that the relevant law was clear and foreseeable; and that the said measure pursued a legitimate aim for the purposes of public order and security. The Ministry noted that the applicant had not been detained on the sole ground of his journalistic activities and that he had been taken into custody and then detained for his acts constituting offence. The Ministry also stressed that the measure taken was necessary in a democratic society, considering that the applicant had long been consciously contributing to the aims of the organisation in directing the public opinion through the media and staging a coup.

207. The applicant, in his counter-statements, stated that his criticism of the Government and the President was considered as paving the way for the coup, which amounted to a special violation of freedom of expression.

2. The Court’s Assessment

208. Article 26 of the Constitution, titled “Freedom of expression and dissemination of thought”, in so far as relevant, reads as follows:

“Everyone has the right to express and disseminate his/her thoughts and opinions by speech, in writing or in pictures or through other media, individually or collectively. This freedom includes the liberty of receiving or imparting information or ideas without interference by official authorities…

The exercise of these freedoms may be restricted for the purposes of national security, public order, public safety, safeguarding the basic characteristics of the Republic and the indivisible integrity of the State with its territory and nation, preventing crime, punishing offenders, withholding information duly classified as a state secret, protecting the reputation or rights and private and family life of others, or protecting professional secrets as prescribed by law, or ensuring the proper functioning of the judiciary.

(…)

The formalities, conditions and procedures to be applied in exercising the freedom of expression and dissemination of thought shall be prescribed by law.”

209. Article 28 of the Constitution, titled “Freedom of the press”, in so far as relevant, reads as follows:

The press is free, and shall not be censored…

 (…)

 The State shall take the necessary measures to ensure freedom of the press and information.

In the limitation of freedom of the press, the provisions of articles 26 and 27 of the Constitution shall apply.

Anyone who writes any news or articles which threaten the internal or external security of the State or the indivisible integrity of the State with its territory and nation, which tend to incite offence, riot or insurrection, or which refer to classified state secrets or has them printed, and anyone who prints or transmits such news or articles to others for the purposes above, shall be held responsible under the law relevant to these offences. Distribution may be prevented as a precautionary measure by the decision of a judge, or in case delay is deemed prejudicial, by the competent authority explicitly designated by law. The authority preventing the distribution shall notify a competent judge of its decision within twenty-four hours at the latest. The order preventing distribution shall become null and void unless upheld by a competent judge within forty-eight hours at the latest.

(…)”.

i. Applicability

210. The charge resulting in the applicant’s detention on remand was related to an event within the scope of the coup attempt of July 15, the main incident leading to the declaration of a state of emergency in Turkey. Therefore, the effect of the applicant’s detention on remand on his freedoms of expression and the press will be reviewed within the scope of Article 15 of the Constitution. During this review, whether the impugned interference was in breach of the guarantees set forth in the Constitution, especially in Articles 26 and 28 of the Constitution, will be determined, and if there is any violation, it will be assessed whether the criteria set forth in Article 15 of the Constitution rendered such a violation lawful (see Aydın Yavuz and Others, §§ 193-195, 242).

ii. Admissibility

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

iii. Merits

(1) General Principles

212. The freedom of expression enshrined in Article 26 of the Constitution and the freedom of press, another form of the freedom of expression which is subject to special safeguards enshrined in Article 28 of the Constitution, constitutes one of the main pillars of a democratic society and conditions sine qua non for the progress of the society and the improvement of individuals (Mehmet Ali Aydın [Plenary], no. 2013/9343, 4 June 2015, § 69; and Bekir Coşkun [Plenary], no. 2014/12151, 4 June 2015, §§ 34-36).

213. In spite of their significance in a democratic society, the freedoms of expression and press are not absolute and may be subject to certain restrictions, provided that the safeguards set out in Article 13 of the Constitution are complied with. Unless it complies with the requirements of Article 13 of the Constitution concerning the restriction of fundamental rights and freedoms, an interference with the freedoms of expression and press would be in breach of Articles 26 and 28 of the Constitution in addition to Article 13. Therefore, it must be determined whether the interference complies with the requirements of being prescribed by law, relying on one or more justified grounds specified in the relevant provisions of the Constitution, and not being contrary to the requirements of a democratic society, as well as the principle of proportionality, which are enshrined in Article 13 of the Constitution.

214. The grounds for the restriction of the freedoms of expression and the press are set out in Article 26 § 2 of the Constitution. In restricting the freedom of the press, Articles 26 and 27 of the Constitution will in principle be applicable pursuant to Article 28 § 4 thereof. Besides, exceptional circumstances whereby the freedom of the press may be restricted are indicated in Article 28 §§ 5, 7 and 9 of the Constitution (see Bekir Coşkun, § 37).

215. Accordingly, the freedoms of expression and the press may be restricted for the purposes of “maintaining national security”, “preventing offences”, “punishing offenders” and “safeguarding the indivisible integrity of the State with its territory and nation”, pursuant to Articles 26 § 2 and 28 § 5 of the Constitution. To that end, it is possible to criminalize, and impose punishment for, the act of disclosing to the press the news or articles that threaten the internal and external security of the State and its indivisible integrity with its territory and nation. Nor is there a constitutional obstacle before applying detention measure, during the investigation and prosecution to be carried out, in respect of press members alleged to have performed such acts (for the Court’s assessment in the same vein, see Erdem Gül and Can Dündar, § 89).

216. In order for an interference with the freedoms of expression and the press to be constitutional, it is not sufficient for it to be prescribed by law and made on the grounds specified in the Constitution. The interference must comply with the requirements of the order of a democratic society as well as being proportionate.

217. Pluralism, tolerance and open-mindedness are sine qua non in a democratic social order. A social order lacking these features cannot be regarded as "democratic" (for the Court’s judgments in the same vein, see Emin Aydın, no. 2013/2602, 23 January 2014, § 41; Fatih Taş [Plenary], no. 2013/1461, 12 November 2014, § 94; and Erdem Gül and Can Dündar, § 90). Pluralism, tolerance, and open-mindedness –above all– must manifest themselves in the free expression of any peaceful opinion. As emphasized –with reference to the judgments of the ECHR– in many judgments of the Constitutional Court, this freedom should apply not only to information or opinions that are considered favourable or regarded as harmless or trivial, but also to those which are against the State or a part of the society and disturbing for them (see Emin Aydın, § 42; and Fatih Taş, § 94).

218. Another requirement of a democratic social order is to provide a suitable environment for individuals to develop their unique personalities. Individuals can realize their unique personalities only in an environment where they can freely express and discuss their thoughts (see Emin Aydın, § 41; and Bekir Coşkun,§ 35).

219. In addition, it is indispensable for a democratic society to ensure the participation of the people, especially in debates concerning the public. In this regard, all kinds of ideas and information regarding the debates concerning the public should be able to be disseminated and the public should have access to them. In this context, freedom of the press, which is a special aspect of freedom of expression, has a special importance in a democratic society. As a matter of fact, the aforementioned freedom not only allows the press to disseminate ideas and information, but also enables the public to reach them (see İlhan Cihaner (2), no. 2013/5574, 30 June 2014, §§ 56-58, 82; Kadir Sağdıç [Plenary], no. 2013/6617, 8 April 2015, §§ 49-51, 61-63; Nihat Özdemir [Plenary], no. 2013/1997, 8 April 2015, §§ 45-47, 57-58; and Erdem Gül and Can Dündar, § 87).

220. Transparency as well as accountability are also requirements of a democratic society (see İlhan Cihaner (2), §§ 56-58, 82; Kadir Sağdıç, §§ 49-51, 61-63; Nihat Özdemir, §§ 45-47, 57-58; and Erdem Gül and Can Dündar, § 87). A healthy democracy requires that the public institutions be supervised not only by the legislative or judicial authorities, but also by other actors such as non-governmental organizations and the press or the political parties that perform activities in the political sphere (see Ali Rıza Üçer (2) [Plenary], no. 2013/8598, 2 July 2015, § 55). In this context, the press imparts news and ideas by fulfilling its tasks as “a public watchdog” and also contributes to ensuring transparency and accountability in a democratic society (see İlhan Cihaner (2), §§ 56-58, 82; Kadir Sağdıç, §§ 49-51, 61-63; Nihat Özdemir, §§ 45-47, 57-58; and Erdem Gül and Can Dündar, § 87). Thus, by virtue of the freedom of the press, the public, reaching information and ideas from different sources, can form a healthier opinion on the works and actions of those holding public authority.

221. However, Article 12 § 2 of the Constitution, which provides “The fundamental rights and freedoms also comprise the duties and responsibilities of the individual to the society, his family, and other individuals.”, refers to the fact that people have duties and responsibilities while exercising their fundamental rights and freedoms. Accordingly, there are also some "duties and responsibilities" that apply to the press in the enjoyment of the freedoms of expression and the press. (For the duties and responsibilities of the press, see Orhan Pala, no. 2014/2983, 15 February 2017, § 46; Erdem Gül and Can Dündar, § 89; R.V.Y. A.Ş., no. 2013/1429, 14 October 2015, § 35; Fatih Taş, § 67; and Önder Balıkçı, no. 2014/6009,15 February 2017, § 43).

222. Any measure interfering with the freedoms of expression and the press should meet a pressing social need and be the last resort. Any measure failing to meet these conditions cannot be considered as a measure compatible with the requirements of the democratic social order (see Bekir Coşkun, § 51; Mehmet Ali Aydın, § 68; and Tansel Çölaşan, no. 2014/6128, 7 July 2015, § 51).

223. In this scope, in the assessment of necessity in a democratic society, it should not be ignored in which context the impugned expressions, resulting in the interference, had been used, and they should not be taken out of the context and considered separately (see Nilgün Halloran, no. 2012/1184, 16 July 2014, § 52; Fatih Taş, § 99; Bekir Coşkun, § 62; Mehmet Ali Aydın, § 76; Ali Rıza Üçer (2), § 49; and Ergün Poyraz (2) [Plenary], no.2013/8503, 27 October 2015, § 63).

224. In addition, while establishing the responsibility of the individual concerned, the impugned expression of him should not be assigned meanings beyond the meaning that an objective observer can comprehend (see Bekir Coşkun, § 63). In this context, the predictions and assumptions lacking a factual basis should be avoided.

225. The means by which the expression is made as well as the features of the said means are also of importance (see Ali Gürbüz and Hasan Bayar, no. 2013/568, 24 June 2015, § 68; and Cihaner, § 72).

In this context, the expressions used in a live broadcast on a television or radio program and the expressions used in a book or newspaper article cannot be considered in the same way. As also stated in the judgments of the ECHR, the statements in a live broadcast cannot be reformulated, changed or withdrawn before they are made public.

226. Lastly, the potential “deterrent effect” of the interferences with the freedoms of expression and the press on the applicants and in general the press must be taken into account (see Ergün Poyraz (2) [Plenary], no. 2013/8503, 27 October 2015, § 79; and Erdem Gül and Can Dündar, § 99).

227. The principle of proportionality reflects the relationship between the aim of interference and the means employed to achieve this aim. In the assessment of the proportionality of any interference with the fundamental rights and freedoms, it must be assessed whether the means chosen to achieve the aim sought is “appropriate”, “necessary” and “proportionate” (see Fatih Taş, §§ 90, 92, 96; and Erdem Gül and Can Dündar, § 90).

228. It is obvious that public authorities have a margin of appreciation in respect of the requirement of being compatible with the requirements of a democratic society and the principle of proportionality. However, in interfering with the freedoms of expression and the press as a result of the exercise of this discretionary power, the public authorities must show “relevant and sufficient” grounds (see Fatih Taş, § 99; and Mehmet Ali Aydın, § 76). It is for the Constitutional Court to make the final assessment as to whether an interference to be made within this scope complies with the safeguards enshrined in the Constitution. The Constitutional Court makes such an assessment on the basis of the grounds given by the public authorities and especially by the inferior courts (see Erdem Gül and Can Dündar, § 91).

(2) Application of Principles to the Present Case

229. Regard being had to the questions directed to the applicant by the investigation authorities and the grounds of his detention order, it appears that the applicant was charged principally on account of his articles and speeches. Accordingly, it has been revealed that, irrespective of the content of the articles and the speeches, the applicant’s detention also constituted a breach of the freedoms of expression and the press, along with the right to personal liberty and security (for the Court’s assessment in the same vein, see Erdem Gül and Can Dündar, § 92).

230. In the assessment of the alleged unlawfulness of detention in relation to the right to personal liberty and security, it has been concluded that the impugned interference was prescribed by the law. There is no situation to depart from this conclusion in terms of the alleged violations of the freedoms of expression and the press.

231. In addition, the applicant was detained on remand for allegedly writing articles and delivering speeches in line with the aims of the FETÖ/PDY, which carried out activities against the national security and was the organization behind the coup attempt. Therefore, it has been concluded that the interference with applicant’s freedoms of expression and the press pursued a legitimate aim in accordance with the grounds specified in the Constitution.

232. Having a legal basis and achieving a legitimate aim, however, do not suffice for the interference to be in conformity with the Constitution. For an assessment as to whether the applicant’s detention constituted a breach of the freedoms of expression and press, the present case must be examined also in terms of the requirement of being necessary in a democratic society and the principle of proportionality. The Constitutional Court will make this examination over the detention process and the reasoning of the detention order.

233. Regard being had to the above-mentioned findings with respect to the lawfulness of the detention and the fact that the main basis for the accusations against the applicant was his articles and speeches, a severe measure such as detention, which was already founded to have lacked the lawfulness above, cannot be regarded as a necessary and proportionate interference in a democratic society in terms of the freedoms of expression and the press.

234. Moreover, it cannot be comprehended, from the circumstances of the present case and reasoning of the detention order, for what “pressing social need” the applicant’s freedoms of expression and press were interfered, considering that the applicant expressed some ideas that were embraced by certain segment of the public.

235. In addition, in making an assessment as to the requirement of being necessary in a democratic society and proportionality, possible “deterring effect” of the interferences with the freedoms of expression and press on the applicants and generally on the media must also be taken into consideration (see Ergün Poyraz (2), § 79; and Erdem Gül and Can Dündar, § 99). In the present case, it is explicit that the applicant’s being detained on remand without providing any concrete fact, other than the articles published and the statement made on Can Erzincan TV, may also have a deterrent effect on the freedoms of expression and the press.

236. For these reasons, it has been concluded that resorting to detention measure in respect of the applicant mainly on the basis of his articles and speeches and without establishing strong indications of guilt was contrary to the safeguards set out in Articles 26 and 28 of the Constitution with respect to the freedoms of expression and the press.

237. Besides, it must also be examined whether the impugned measure was legitimate and proportionate pursuant to Article 15 of the Constitution, which prescribes the suspension and restriction of fundamental rights and freedoms in time of a state of emergency.

iv. Article 15 of the Constitution

238. Freedoms of expression and the press are not among the core rights provided in Article 15 § 2 of the Constitution as inviolable even when emergency administration procedures such as war, mobilization, martial law or a state of emergency are in force. It is therefore possible in times of emergency to impose measures with respect to this right contrary to the safeguards enshrined in the Constitution in time of emergency cases.

239. 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 was in breach of any obligation (any safeguard continued to be under protection in times of emergency) stemming from the international law.

240. Besides, whether the interference had been to the “extent required by the exigencies of the situation” should also be examined. In this scope, the lawfulness of the applicant’s detention on remand has been assessed, and it has been concluded that the applicant’s detention on remand, in the absence of an indication of his guilt, had not been an interference required by the exigencies of the situation. In the particular circumstances of the present case, there is no circumstance to depart from this conclusion in terms of the freedoms of expression and the press.

241. Therefore, it has been also concluded that Article 15 of the Constitution, which prescribes the suspension and restriction of fundamental rights and freedoms in time of a state of emergency does not justify the impugned interference that was in breach of the guarantees set forth in Articles 26 and 28 of the Constitution, regarding the applicant’s freedoms of expression and the press.

242. For the reasons explained above, it has been concluded that, taken in conjunction with Article 15 of the Constitution, the applicant’s freedoms of expression and the press under Articles 26 and 28 of the Constitution had been violated.

Mr. Burhan ÜSTÜN, Mr. Serdar ÖZGÜLDÜR, Mr. Osman Alifeyyaz PAKSÜT, Mr. Kadir ÖZKAYA, Mr. Rıdvan GÜLEÇ and Mr. Recai AKYEL did not agree with this conclusion.

C. Alleged Violation of the Prohibition of Ill-treatment

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

243. The applicant maintained that during the first 5 days of his police custody lasting for 12 days, he had not been allowed to contact with his lawyer or any other person; that during his custody, he had been held in a cell measured 3-4 meters in width -where only two beds could be placed- with 4 inmates without any opportunity to do exercise, any access to natural light and fresh air and under fluorescent lamp that was constantly switched on; that he had not been provided with any refreshments other than water; that the foodstuff provided in the prison had been inadequate; that the place he had been placed was not clean; and that he had no opportunity to meet basic human needs, such as brushing teeth. He accordingly alleged that the prohibition of treatment incompatible with human dignity had been violated.

244. He further asserted that the practices in the prison where he had been held also amounted to a treatment incompatible with human dignity; that in this context, he had been prevented from receiving or sending letters, as well as from sending his texts he had wrote as a writer to publishing firms or editors; that he had not been allowed to do physical exercise; and that his written requests for availing of the sports hall and hairdresser in the prison had been rejected. He also maintained that his requests to be held in the same cell, or contact, with his brother, who was also detained in that prison, had not been accepted; that he had been arbitrarily restricted from interviewing with his lawyer, and confidentiality of these interviews had been breached; that the underlying aim was indeed to punish him; and that he had not been allowed to even send a message for the ceremony held on the occasion of his father’s death anniversary.

245. In its observations, the Ministry indicated that as required by the subsidiarity nature of the individual application mechanism, any allegation which had not been raised before the ordinary legal remedies and general courts could not be brought before the Constitutional Court; that in the present case, the applicant had not brought his allegations of being subjected to ill-treatment before the prosecutor’s office and during his interrogation; and that nor had he requested the relevant authorities to initiate an investigation against those responsible. The Ministry accordingly concluded that the applicant had failed to exhaust the available legal remedies.

246. As to the merits, the Ministry stated that some of the issues complained of by the applicant were not true, whereas some of them were the inevitable consequences of being lawfully held in custody; and that the impugned measures were proportionate to the extent strictly required by the exigencies of the situation.

247. In his counter-statements, the applicant stated that the Ministry’s observations were not acceptable; and he was still subject to certain restrictions such as doing sports, receiving and sending letters, having access to books, and meeting with his relatives. He further noted that these violations had resulted from the state of emergency and that therefore, he had no opportunity to obtain redress; and that his request for the lifting of the restrictions imposed on him was dismissed.

2. The Court’s Assessment

248. The ordinary legal remedies must have been exhausted before an individual application is lodged with the Constitutional Court (see Ayşe Zıraman and Cennet Yeşilyurt, no. 2012/403, 26 March 2013, §§ 16, 17).

249. In the present case, as regards the alleged ill-treatment during his custody period, the applicant maintained that he had been ill-treated by the public officers while being under custody and he had been intentionally held in inhuman conditions. In consideration of these allegations under this section as a whole, it has been observed that the applicant complained of being subjected to ill-treatment by the public officers from the moment of his arrest. Although the applicant mentioned the insufficiency of the conditions of his custody, he did not clearly indicate whether the alleged ill-treatment resulted from the public officers’ wrongful intent and/or negligence or from merely the conditions of detention. Therefore, it has been observed that there was no sufficient information and document to ensure the examination of these allegations directly by the Constitutional Court. In this sense, the particular circumstances of the present case must be established through a judicial and/or administrative investigation to be conducted into the question whether these allegations raised by the applicant resulted from the public officers’ wrongful intent and/or negligence.

250. It has been observed that as regards the applicant’s complaints concerning his detention conditions in the prison, there were administrative and judicial authorities before which he could raise his allegations and file requests to immediately put an end to the alleged ill-treatment. Although it appears from the application form and annexes thereto that in his petition submitted to the Bakırköy Chief Public Prosecutor’s Office, the applicant requested that the restrictions imposed on his abilities to do sports, receive and send letters, have access to books, contact with his relatives and etc. be lifted for being in breach of the human rights, there is no information or document indicating that he had filed a complaint in this respect before the incumbent magistrate judge and/or subsequently appealed the magistrate judge’s decision (if any) before an assize court. Within the scope of the provisions in question, the applicant should have primarily raised his complaints -that he had been subjected to ill-treatment due to the place and conditions of his detention- before the competent judicial authorities and requested these conditions be improved within the shortest time possible (for the Court’s judgment in the same vein, see Mehmet Baransu, no. 2015/8046, 19 November 2015, § 30). Given the applicant’s complaints, it has been observed that unlike the applicant’s allegation, there is no reason to conclude that the available legal remedies were not accessible, capable of providing redress and offering reasonable prospects of success in respect of his complaints. Therefore, in the present case, there is also no ground to require an exception to the rule of exhaustion of available legal remedies (for the Court’s judgment in the same vein, see Didem Tütenk, no. 2013/7525, 10 June 2015, §§ 40, 41).

251. It has been accordingly concluded that the applicant directly lodged an individual application with the Constitution Court without primarily raising his complaints and the related evidence, if any, before the administrative and judicial authorities within the prescribed period and thereby awaiting for the assessment and redress of these alleged violations primarily by these authorities.

252. For these reasons, the application must be declared inadmissible for non-exhaustion of legal remedies insofar as it relates to the alleged violation of the prohibition of ill-treatment as the applicant lodged an individual application before resorting to the available administrative and/or judicial remedies.

D. Application of Article 50 of Code no. 6216

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

“1) At the end of the examination of the merits it is decided either the right of the applicant has been violated or not. In cases where a decision of violation has been made what is required for the resolution of the violation and the consequences thereof shall be ruled…

2) If the determined violation arises out of a court decision, the file shall be sent to the relevant court for holding the retrial in order for the violation and the consequences thereof to be removed. In cases where there is no legal interest in holding the retrial, the compensation may be adjudged in favour of the applicant or the remedy of filing a case before the general courts may be shown. The court which is responsible for holding the retrial shall deliver a decision over the file, if possible, in a way that will remove the violation and the consequences thereof that the Constitutional Court has explained in its decision of violation.”

254. The applicant claimed 1,000 Euro for every day of his detention in respect of non-pecuniary compensation.

255. In the present case, the Court found violations of Article 19 § 3 as well as Articles 26 and 28 of the Constitution due to the unlawfulness of the applicant’s detention giving rise also to the breach of the freedoms of expression and the press. He is still detained on remand pending his trial. In this sense, a copy of the judgment must be sent to the relevant court for the redress of the consequences of the violations in question, in addition to the award of compensation.

256. The applicant must be awarded a net amount of 20,000 Turkish liras (“TRY”) in respect of the non-pecuniary damages which he sustained due to the interference with his right to personal liberty and security and which could not be redressed by merely the finding of a violation.

257. The total court expense of TRY 2,219.50 including the court fee of TRY 239.50 and counsel fee of TRY 1,980, which is calculated over the documents in the case file, must be reimbursed to the applicant.

VI. JUDGMENT

For the reasons explained above, the Constitutional Court held on 11 January 2018:

A. 1. UNANIMOUSLY that the alleged violation of the right to personal liberty and security due to the unlawfulness of the applicant’s detention be DECLARED ADMISSIBLE;

 2. UNANIMOUSLY that the alleged violations of the freedoms of expression and the press for being detained be DECLARED ADMISSIBLE;

 3. UNANIMOUSLY that the alleged violation of the prohibition of ill-treatment be DECLARED INADMISSIBLE for the non-exhaustion of legal remedies;

 4. UNANIMOUSLY that the alleged violation of the personal liberty and security due to the unlawfulness of his police custody be DECLARED INADMISSIBLE for the non-exhaustion of legal remedies;

 5. UNANIMOUSLY that the alleged violation of the personal liberty and security due to the magistrate judges’ being in breach of the principles of an independent and impartial judge be DECLARED INADMISSIBLE for being manifestly ill-founded;

 6. UNANIMOUSLY that the alleged violation of the personal liberty and security due to the restriction on access to the investigation file be DECLARED INADMISSIBLE for being manifestly ill-founded;

 7. UNANIMOUSLY that the alleged violation of the personal liberty and security due to the judicial review of the challenge against his detention without a hearing be DECLARED INADMISSIBLE for being manifestly ill-founded;

B. 1. By MAJORITY and by dissenting opinion of Mr. Burhan ÜSTÜN, Mr. Serdar ÖZGÜLDÜR, Mr. Osman Alifeyyaz PAKSÜT, Mr. Kadir ÖZKAYA, Mr. Rıdvan GÜLEÇ and Mr. Recai AKYEL, that the right to personal liberty and security safeguarded by Article 19 of the Constitution was VIOLATED;

 2. By MAJORITY and by dissenting opinion of Mr. Burhan ÜSTÜN, Mr. Serdar ÖZGÜLDÜR, Mr. Osman Alifeyyaz PAKSÜT, Mr. Kadir ÖZKAYA, Mr. Rıdvan GÜLEÇ and Mr. Recai AKYEL, that the freedoms of expression and the press safeguarded respectively by Articles 26 and 28 of the Constitution were VIOLATED;

C. That a copy of the judgment be SENT to the 26th Chamber of the İstanbul Assize Court (no. E.2017/127) in order to redress the consequences of the violation;

D. That a net amount of TRY 20,000 be PAID to the applicant in respect of non-pecuniary damage, and other compensation claims be REJECTED;

E. That the total court expense of TRY 2,219.50, including the court fee of TRY 239.50 and the counsel fee of TRY 1,980, be REIMBURSED to the applicant;

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

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

DISSENTING OPINION OF JUSTICES BURHAN ÜSTÜN, SERDAR ÖZGÜLDÜR AND OSMAN ALİFEYYAZ PAKSÜT

 1. The information and documents in the applicant’s case file reveal that the investigation authorities’ acknowledgement that there was strong indication of guilt on the part of the applicant was not unfounded and arbitrary; that the applicant’s detention -which had been ordered as any measure other than detention would be insufficient for ensuring the proper collection of the evidence concerning the impugned incident and the safe conduct of investigations due to the conditions prevailing subsequent to the coup attempt and also given the risk of applicant’s fleeing- had factual basis; and that given the length, nature and gravity of the penalty envisaged for the offence imputed to the applicant, his detention was proportionate. We accordingly conclude that there was no violation of the right to personal liberty and security, safeguarded by Article 19 § 3 of the Constitution, due to the alleged unlawfulness of the applicant’s detention.

 2. As a natural consequence of the above-cited consideration, it has been observed that there is no reason to justify and require a departure from the same conclusion also with respect to the applicant’s allegation that he was subject to an investigation and then detained due to his acts merely falling within the scope of the freedoms of expression and the press. We have accordingly consider that there was no violation of the freedoms of expression and the press under Articles 26 and 28 of the Constitution.

 Accordingly, as we have concluded that Articles 19 § 3, 26 and 28 of the Constitution were not violated, we do not agree with the conclusion reached by the Court’s majority.

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

 The application concerns the alleged violations of the personal liberty and security due to the unlawfulness of the custody and detention of the applicant, a journalist, the decisions ordering his detention issued by magistrate judges lacking independence and impartiality, the restriction on access to the investigation file and the judicial review of lawfulness of his detention without a hearing; of the freedoms of expression and the press for being detained on account of his journalistic activities falling into scope of the freedom of expression; as well as of the prohibition of ill-treatment due to certain practices performed during his custody and detention.

 We have agreed with the conclusions reached by the majority of the Court that the alleged violations of the applicant’s right to personal liberty and security due to the unlawfulness of detention as well as of his freedoms of expression and the press for being detained on remand be declared admissible; that the alleged violations of the prohibition of ill-treatment and of the right to personal liberty and security due to the unlawfulness of his police custody be declared inadmissible for the non-exhaustion of available legal remedies; that the alleged violations of the right to personal liberty and security due to the magistrate judges’ being in breach of the principles of independent and impartial judges, the restriction imposed on access to the investigation file and the judicial review of the lawfulness of his detention without a hearing be declared inadmissible for being manifestly ill-founded.

 However, we have disagreed, for the reasons mentioned below, with the conclusions reached by the majority to the effect that there had been violations of the applicant’s right to personal liberty and security due to the unlawfulness of his detention, as well as of his freedoms of expression and the press for being detained on remand.

 The applicant’s detention was ordered, pursuant to Article 100 of the Code of Criminal Procedure no. 5271, within the scope of an investigation conducted into the media structure of the Fetullahist Terrorist Organisation (FETÖ) and/or the Parallel State Structure (PDY) for allegedly having attempted to overthrow the government of the Republic of Turkey or prevent it from performing its duties, as well as for his alleged membership of an armed terrorist organisation.

 Comprehensive information and assessments as to the FETÖ/PDY are provided in the judgment in the case of Aydın Yavuz and Others (no. 2016/22169) issued by the Plenary of the Court on 20 June 2017.

 As also noted in the above-mentioned judgment, a military coup attempt was staged in Turkey on 15 July 2016. Therefore, a nation-wide state of emergency was declared on 21 July 2016, which was subsequently extended for several times. The public and investigation authorities considered -relying on the factual basis- that the perpetrator of this coup attempt is an organisation conducting activities in Turkey for long years and called in the recent years as the Fetullahist Terrorist Organisation (FETÖ) and/or the Parallel State Structure (PDY) (see Aydın Yavuz and Others [Plenary], no. 2016/22169, 20 June 2017, §§ 12-25).

 In the decision ordering the applicant’s detention, which was issued by the İstanbul 10th Magistrate Judge, the judge demonstrated -as the strong suspicion of his having committed the imputed offence- the continuous statements in favour of the FETÖ/PDY’s aims expressed by him through its media organs, whereby he paved the way for the coup attempt in question, and his explicit call for a coup attempt during a TV programme.

 In the detention order of 22 September 2016, the incumbent magistrate judge concluded that prior to the coup attempt of 15 July 2016, the FETÖ/PDY had constantly broadcast to pave the way for the coup attempt through the media organs under its control; that the applicant notably tried to create the impression both within the country and abroad that those governing the country must no longer hold the power in any way; that although given his knowledge, educational background and social status, the applicant was expected to know the attempt of the FETÖ/PDY to overthrow the Government and thereby to take over the administration through its operations conducted on 17-25 December 2013, he had explicitly supported the organisation during the TV programmes broadcast by the media outlets known to be controlled by the FETÖ/PDY, also acted in line with the organisation’s aims through his articles published in several printed media, and he promoted the impression through his articles and speeches during TV programmes that those ruling the country must no longer hold the power in any way. It was further stated that the applicant contributed to the propaganda to the effect that “the President was a dictator and undermined the law”, thereby leading the community not to resist against the military coup; that his expressing opinions, broadcasting and unilaterally informing the public for years, with a view to paving the way for the military coup, on a constant basis cannot be considered to fall into the scope of the right to freely express and disseminate opinions; and that the similarity between these acts performed by the applicant and the expressions used in the coup manifesto read out on the Turkish Radio and Television Association (“TRT”) was also an indication that his acts had been intended to pave the way for the coup. It is accordingly noted that in his speech during the programme broadcast on Can Erzincan TV on 14 July 2016, one day before the coup attempt, his statements “… Within the State of the Republic of Turkey, there is probably another structure, whose components outside Turkey are closely observing and documenting all these events. It is not clear exactly when [it] will pull its hand out of the bag or how [it] will do so” (“Türkiye Devleti içinde de muhtemelen bütün bu gelişmeleri dış dünyada daha fazla belgeleyen, izleyen bir başka da yapı var. Onun ne zaman torbadan elini çıkaracağı, nasıl elini çıkaracağı belli değil”). …” were an explicit call for a coup. Relying on these findings and conclusions, the magistrate judge held that there were strong indications that the applicant had committed the offences of attempting to overthrow the Turkish Government and or to prevent it from performing its duties and of being a member of an armed terrorist organisation. It accordingly concluded that given the severity of the potential sentence to be imposed on him and the risk of his fleeing, the measures of conditional bail would remain insufficient in his case.

 On 28 September 2016, the applicant lodged a challenge against his detention order.

 On 10 October 2016, the İstanbul 2nd Magistrate Judge conducting an examination over the case-file dismissed his challenge on the grounds that “the imputed offences were among the catalogue offences specified in Article 100 of the CCP and his detention was proportionate to the severity of the imputed offence and its corresponding penalty”.

 Stating that he became aware of the dismissal decision on 13 October 2016, the applicant lodged an individual application with the Court on 8 November 2016.

 As is seen, in the present case, the applicant complained of not the excessive length of his pre-trial detention but of the “initial detention” order.

 Following this individual application, a criminal case was filed against the applicant before the incumbent assize court, through the indictment issued by the İstanbul Chief Public Prosecutor’s Office on 14 April 2017, for attempting to overthrow the Grand National Assembly of Turkey (“GNAT”) or prevent it from performing its duties, to overthrow the Turkish Government or prevent it from performing its duties, to overthrow the constitution, as well as for committing offences on behalf of an armed terrorist organisation without being a member of it.

 In the indictment, the public prosecutor referred to the structure of the FETÖ/PDY and the method how it had used its units within the judiciary and security directorates in line with the FETÖ/PDY’s aims during the investigations such as “17-25 Aralık (17-25 December)”, “MİT Tırları (MİT Trucks)”, “Selam-Tevhid-Kudüs Ordusu”, “Tahşiye”, “Kozmik Oda (Cosmic Room)” and “Balyoz (Sledgehammer)” or during the cases filed in relation to these investigations, as well as to FETÖ/PDY’s acts and actions intended for overthrowing the Government. The public prosecutor also provided information on the media structure of the FETÖ/PDY, namely Zaman, Today’s Zaman, Taraf, Samanyolu TV, Can Erzincan TV and etc. considered to have links with the FETÖ/PDY and have involved in the coup attempt.

 The public prosecutor considered that the applicant had involved in this attempt in consideration of his statements implying that he had acted in line with the organisational aims and purposes on a continuous basis and that the substructure necessary for the coup attempt, of which he had been already aware, had been set up.

 In the meantime, referring to the statement given by N.V., who had been a senior leader within the FETÖ/PDY but was no longer a member of it, on 24 October 2016, it was further maintained that the top of the FETÖ/PDY’s media structure was A.K. during the period after N.V.; that A.K. ensured the communication between certain media members including the applicant and Fetullah Gülen, and these media members had close relationships with A.K..

 Besides, it was alleged based on telephone operator’s records that the applicant had been in contact with certain persons who were allegedly senior leaders of the FETÖ/PDY and against whom a criminal case was filed for offences associated with this organisation (H.K., H.T., H.E., M.Y., A.K., Ö.A., A.B., C.U. and M.M.G.). The public prosecutor also pointed to the correspondences that had been exchanged by and between certain persons stated to be the senior leaders of the FETÖ/PDY via “ByLock” and that also contained certain information about the applicant.

 Within the individual application mechanism, the Court is empowered to conduct an examination, notably on the basis of the detention process and the reasons indicated in the detention order, in consideration of the particular circumstances of every concrete case. However, it primarily falls upon the judicial authorities that have ordered the detention to make an assessment, notably with respect to initial detentions, to ascertain in every concrete case whether there is strong indication of criminal guilt, a pre-requisite of detention, whether there are grounds to justify the detention and whether the detention measure is proportionate. This is why such judicial authorities which have direct access to all parties of the case and evidence are in a better position than the Court in this sense.

 In the present case, the application has been lodged not for the excessive length of detention but for the “initial detention” order.

 As noted in several judgments rendered by the Court, in case of an initial detention, it may not be always possible to demonstrate the existence of strong suspicion of guilt, along with all relevant evidence. This is because one of the aims of detention is to proceed with the criminal investigation and/or prosecution in order to confirm or refute the suspicions regarding the person concerned (see Dursun Çiçek, no. 2012/1108, 16 July 2014, § 87; and Halas Aslan, no. 2014/4994, 16 February 2017, § 76). It is not therefore certainly necessary that there must be sufficient evidence at the time of arrest and detention. Accordingly, the facts underlying the suspicions to constitute a basis for the accusation and thereby for detention must not be considered to be at the same level with the facts to be discussed at the subsequent stages of the criminal proceedings and to be a basis for the conviction (see Mustafa Ali Balbay, no. 2012/1272, 4 December 2013, § 73).

 Especially in a state of emergency, in assessing the lawfulness of a detention ordered within the scope of an investigation conducted in relation with the incidents underlying the declaration of a state of emergency, the particular circumstances of every concrete case as well as the characteristics and severity of the incidents giving rise to the declaration of state of emergency must be taken into consideration so as to ascertain whether there is a strong indication of criminal guilt.

 In case of a detention ordered following the incidents having an impact on the country as a whole like a coup attempt, it may not be always possible for the investigation authorities to establish all concrete facts (indications) confirming the criminal suspicion comprehensively at the time of detention, as well as for the judicial authorities to rely on these concrete facts in their initial detention orders. In such cases, the existence of certain indications of criminal guilt, which may be considered strong under certain circumstances by the nature of the impugned incident, may be deemed sufficient in terms of an initial detention.

 However, at this point, it must be borne in mind that the right to personal liberty and security is a fundamental right which provides safeguards to protect the individuals against arbitrary interference by the State with their liberty (see Erdem Gül and Can Dündar [Plenary], no. 2015/18567, 25 February 2016, § 62) and that not to arbitrarily deprive individuals of their liberty is among the most significant underlying safeguards of all political systems bound by the principle of rule of law. It is a basic safeguard, which is also applicable when emergency administration procedures are in force, that any interference with individuals’ liberty must not be arbitrary (see Aydın Yavuz and Others, § 347). One of the safeguards that would prevent any arbitrary interference with the right to personal liberty and security due to the application of detention measure is first and foremost the necessity to demonstrate the indication of criminal guilt in ordering detention.

 In seeking the applicant’s detention, the İstanbul Chief Public Prosecutor’s Office made a reference especially to his statements during a TV programme broadcast on Can Erzincan TV one day before the coup attempt of 15 July and to some of his articles, by maintaining that he had performed certain activities on a constant basis in line with the FETÖ/PDY’s aims and thereby involved in the coup attempt staged by the members of this organisation.

 The İstanbul 10th Magistrate Judge, ordering the applicant’s detention, stated that there was concrete evidence to demonstrate the strong criminal suspicion on the applicant’s part. In its order, it was stressed that the applicant with sufficient knowledge, educational background and social status was expected to know that the FETÖ/PDY’s intent was to take over the administration by overthrowing the government.

 The magistrate judge also noted that the applicant had expressed opinions to pave the way for a military coup on a continuous basis, which could not be considered to amount to the freedom of expression.

 According to the magistrate judge, the FETÖ/PDY constantly made broadcasts via the media organs under its control with a view to paving the way for a coup. In this sense, although the applicant was expected, given his knowledge, educational background and social status, to become aware of the FETÖ/PDY’s attempt to overthrow the Government and thereby to take over the administration, he had explicitly supported the organisation during the TV programmes broadcast by the organs known to be controlled by the FETÖ/PDY, also acted in line with the organisation’s aims through his articles published in several printed media, and he promoted the impression through his articles and speeches during TV programmes that those ruling the country must no longer hold this power in any way. He contributed to the propaganda to the effect that “the President was a dictator and undermined the law”, thereby leading the community not to resist against the military coup.

 In this regard, the magistrate judge considered that the applicant had tried to influence public opinion and clearly made a call for the coup attempt through his speech broadcast on Can Erzincan TV. To that end, during the TV programme broadcast on 14 July 2016, one day before the coup attempt, he said “…Within the State of the Republic of Turkey, there is probably another structure, whose components outside Turkey are closely observing and documenting all these events. It is not clear exactly when [it] will pull its hand out of the bag or how [it] will do so”. On the next day, a military coup attempt was staged. Therefore, in the detention order, the statements expressed by him on TV was associated with the coup attempt.

 In the light of the above-mentioned findings and assessments, it cannot be said that the investigation authorities and the magistrate judge ordering the applicant’s detention failed to demonstrate, in a concrete manner, the indication of criminal guilt on the applicant’s part and that their assessments were unfounded and arbitrary.

 Besides, the gravity of the punishment envisaged in the relevant law with respect to the criminal act of “attempting to overthrow the Government of the Republic of Turkey or to prevent it from performing its duties” constitutes one of the cases where the suspicion of fleeing arises (see Hüseyin Burçak, no. 2014/474, 3 February 2016, § 61; and Aydın Yavuz and Others, § 275). Moreover, the said offence is among the offences regarding which the “ground for arrest” may be deemed to exist ipso facto under Article 100 § 3 of Code no. 5271.

 Given also the conditions prevailing, and the incidents taking place, in the course of and following 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 (see Aydın Yavuz and Others, § 271; and Selçuk Özdemir [Plenary], no. 2016/49158, 26 July 2017, § 78).

 In the present case, in ordering the applicant’s detention, the İstanbul 10th Magistrate Judge relied on the gravity of the sanction associated with the imputed offence, the nature of the imputed offence as a catalogue offence laid down in Article 100 § 3 of Code no. 5271 –referring to the gravity of the offence-, the risk of his fleeing and the insufficiency of the measure of conditional bail.

 Therefore, regard being had to the general conditions prevailing at the time when the applicant’s detention was ordered, the above-mentioned particular circumstances of the present case, and the content of the detention order issued by the İstanbul 10th Magistrate Judge, nor can it be said that the reasons for the applicant’s detention lacked factual basis.

 As regards the question whether his detention was proportionate:

 In determining whether a given detention is proportionate under Articles 13 and 19 of the Constitution, all circumstances of the given case must be taken into consideration (see Gülser Yıldırım (2), § 151).

 It should be primarily noted that conducting an investigation into terrorist offences leads public authorities to confront with significant difficulties. Therefore, the right to personal liberty and security must not be constructed in a way that would seriously hamper the judicial authorities’ and security forces’ effective struggle against offences -particularly organized crimes- and criminality (see, in the same vein, Süleyman Bağrıyanık and Others, § 214; and Devran Duran, § 64). Given the scope and nature of the investigations conducted especially in relation with the coup attempt or –if not related with the coup attempt, in connection with the FETÖ/PDY, as well as the characteristics of the FETÖ/PDY, it is evident that suck kinds of investigations are more difficult and complex than the other criminal investigations (see Aydın Yavuz and Others, § 272; and Selçuk Özdemir, § 350). Therefore, the preventive measures other than detention may be insufficient for ensuring the proper collection of the evidence and for conducting the investigations in an effective manner, due to the conditions prevailing in the aftermath of the coup attempt.

 It has been considered that as the applicant was taken into custody and then detained on remand, within the scope of an investigation conducted into the FETÖ/PDY’s media structure, about 2 months after the coup attempt had been quelled, there is no ground to reach the conclusion that his detention was not “necessary”, which is an element inherent in the principle of proportionality.

 Regard being had to the above-mentioned circumstances of the present case, the conclusion reached by the İstanbul 10th Magistrate Judge –to the effect that the detention measure was proportionate and conditional bail would remain insufficient on the basis of the severity of punishment prescribed for the imputed offences and the gravity of the acts committed by the applicant- cannot be regarded as unfounded or arbitrary.

 Accordingly, we consider that there was no violation of the “right to personal liberty and security” safeguarded by Article 19 § 3 of the Constitution.

 On the other hand, in the examination of the alleged unlawfulness of the applicant’s detention, it has been concluded that there was plausible evidence justifying the criminal suspicion on the applicant’s part; that there were reasons justifying his detention; and that the detention was proportionate. Therefore, there is no ground to reach a different conclusion with respect to the applicant’s allegation that he was investigated and subsequently detained due to his acts falling into the scope of the freedoms of expression and the press.

 For these reasons, we consider that there were no violations of the right to personal liberty and security, as well as of the freedoms of expression and the press.

I. CASE DETAILS

Deciding Body Plenary Assembly
Decision/Judgment Type Merits (violation)
Tag
(Mehmet Hasan Altan (2) [GK], B. No: 2016/23672, 11/1/2018, § …)
   
Case Title MEHMET HASAN ALTAN (2)
Application No 2016/23672
Date of Application 8/11/2016
Date of Decision/Judgment 11/1/2018
Official Gazette Date/Issue 19/1/2018 - 30306
Press Release Available

II. SUBJECT-MATTER OF THE APPLICATION


 

III. EXAMINATION RESULTS


Right Alleged Violation Conclusion Redress
Right to personal liberty and security Criminal charge (custody) Non-exhaustion of legal remedies
Criminal charge (unlawfulness of detention) Violation Non-pecuniary compensation, Re-trial
Criminal charge (detention) (public) Violation Non-pecuniary compensation, Re-trial
Criminal charge (unlawfulness of detention) Manifestly ill-founded
Criminal charge (detainee’s access to investigation file) Manifestly ill-founded
Appeal against detention (failure to hold a hearing, lack of independence and impartiality of the court) Manifestly ill-founded
Freedom of expression Press Violation Re-trial
Prohibition of ill-treatment Ill-treatment under police custody Non-exhaustion of legal remedies
Ill-treatment due to the detention conditions (penitentiary institution) Non-exhaustion of legal remedies

IV. RELEVANT LAW



Type of legislation Date/Number of legislation - Name of legislation Article
Law 5271 Criminal Procedure Law 91
270
3713 Anti-Terrorism Law 3
2
1
5237 Turkish Criminal Law 314
312
311
309
220
5271 Criminal Procedure Law 271
153
141
109
101
100
6
5
4
1
5271 Criminal Procedure Law 142
3713 Anti-Terrorism Law 5
Decree-Law 10
6

11 January 2018 Thursday

Mehmet Hasan Altan [PA] (no. 2016/23672, 11 January 2018)

The Facts

The applicant is an academician, as well as a well-known journalist and author.

On the night of 15 July 2016, Turkey faced a military coup attempt. Therefore, a state of emergency was declared countrywide on 21 July 2016. The public authorities and the investigation authorities stated that the FETÖ/PDY was the plotter/perpetrator of the coup attempt.

In this scope, investigations have been conducted against the structures of the FETÖ/PDY in various fields such as education, health, trade, civil society and media in public institutions, and many persons have been taken into custody and detained.

The Istanbul Chief Public Prosecutor’s Office initiated an investigation in relation to the media structure of the FETÖ/PDY against seventeen suspects, including the applicant, many of whom were journalists, authors and academicians.

In this scope, the applicant was taken into custody on 10 September 2016 and a search warrant was issued on his house. During the search, a bank card issued by the Bank Asya in the name of the applicant and six pieces of 1 USD banknote –two of them were (F) series– were seized. The applicant was held in custody until 21 September 2016.

On 21 September 2016, the Istanbul Chief Public Prosecutor’s Office took the applicant’s statement. On 22 September 2016, the Magistrate Judge’s Office ordered the applicant’s detention on remand for attempting to overthrow the Government of the Republic of Turkey or prevent it from performing its duties and for membership of a terrorist organization.

The applicant appealed against the detention order and requested the review of his appeal at a hearing. However, the Istanbul 1st Magistrate Judge’s Office reviewed the applicant’s appeal without hearing and dismissed it with no further right of appeal.

On 12 April 2017, the Istanbul Chief Public Prosecutor’s Office indicted the applicant for the offences of attempting to overthrow the Government of the Republic of Turkey or prevent it from performing its duties, attempting to overthrow the constitutional order and committing crime on behalf of a terrorist organization without being a member of it.

The case against the applicant is still pending before the 26th Chamber of the Istanbul Assize Court. At the hearing of 11 December 2017, the Public prosecutor submitted his opinion on the merits. He requested that the applicant be punished for attempting to overthrow the constitutional order. The applicant is still detained on remand.

The Applicant’s Allegations

The applicant maintained that his detention was unlawful and that his right to liberty and security, as well as the freedoms of expression and press, were breached on the ground that the imputed acts fell into the scope of freedoms of expression and press and that there were no grounds for detention. According to the applicant, he was detained for political reasons rather than the reasons set forth in the Constitution.

The applicant also complained that his apprehension was unlawful, that his access to investigation file was restricted, that magistrate judgeship did not conform to the principles of independence and impartiality, that his appeal was reviewed without a hearing and that the prohibition of ill-treatment was violated.

The Court’s Assessment

Alleged Unlawfulness of Detention

In brief, the Constitutional Court made the following assessments:

The examination of the Constitutional Court will be limited to the assessment of the lawfulness of the applicant’s detention on remand, independently of the conducting of investigation and prosecution against the applicant and the possible results of the proceedings. In addition, the issue as to whether Article 19 § 3 of the Constitution have been violated is to be examined in the specific circumstances of each application.

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

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

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

In cases where there are serious claims that the imputed acts fall within the scope of the fundamental rights and freedoms, which are indispensable for democratic social order, such as freedom of expression, freedom of the press, freedom of assembly and the rights to elect, to be elected and to carry out political activities, or in cases where such a situation is evident from the circumstances of the concrete case, the judicial authorities resorting to detention must apply a higher scrutiny in determining the existence of strong criminal suspicion.

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

The Constitutional Court’s review must be conducted especially over the detention process and the reasoning of detention order by having regard to the circumstances of the concrete case.

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

Referring to the facts that the applicant constantly made statements in the media outlets of the FETÖ/PDY, the perpetrator of the coup attempt of 15 July 2016, and in line with the purposes of this organization, thereby paving the way for the coup attempt, and that he explicitly made a call for coup during his speech on a television programme, the Istanbul 10thMagistrate Judge’s Office concluded that there was strong criminal suspicion on the part of the applicant for attempting to overthrow the Government of the Republic of Turkey or prevent it from performing its duties and for membership of a terrorist organization.

In the present case, the articles and speeches on account of which the applicant has been detained on remand consists of his article titled “Balyoz’un Anlamı (The Meaning of Sledgehammer)” that was published in Star, daily newspaper, in 2010,his speech in a program broadcasted on Can Erzincan TV the day before the coup attempt, and his article titled “Türbülans (Turbulence)” that was published on his own website on 20 July 2016.

First, it was argued that in his speech titled “Balyoz’un Anlamı”, the applicant aimed at creating a public opinion in accordance with the aims of the organization by making statements praising the Sledgehammer investigation that was stated by the investigation authorities to have been manipulated with fabricated documents.

The article in question was published in Star, national daily newspaper, in 2010. The investigation authorities could not put forward factual grounds leading them to conclude that the article titled “Balyoz’un Anlamı”, which had been written a few years before the “17-25 December investigations” of 2013 –during which it was stated that the real purpose of the FETÖ/PDY exposed– and concerned a case that had been at the top of the agenda at the material time, had been written in accordance with the aims of the FETÖ/ PDY.

Second, it was argued that in his speech in a programme broadcasted on Can Erzincan TV the day before the coup attempt, the applicant tried to create a public opinion to stage a coup and explicitly made a call for coup by stating “… There is probably another structure in the Turkish State, which documents and monitors all these developments more than the outside world does. In other words, it is not clear when and how this structure will take its face out of the bag…”. However, the applicant asserted that he did not know that a coup would be made, nor did he make a call for coup, that his abovementioned words were distorted to be regarded as an offence and that the word “structure” in his speech had referred to the State organs.

Regard being had to the content and context of the applicant’s words, the words of other speakers, and to the thoughts stated therein as a whole, it is difficult to regard, without hesitation, these words as a call for the coup and to acknowledge that the applicant had uttered them, being aware of the coup attempt to take place the next day, for the purpose of bracing the public for it. Otherwise, meanings beyond the one which may be attributed by an objective observer may be ascribed to the words uttered by the applicant. As a matter of fact, during the speeches delivered through the program, it was forecasted that the Government might be overthrown, at or before the elections to be held two years later, by a new political party which would be established by some of the members of parliament from the ruling part together with another politician. Besides, it must be also borne in mind that the impugned words were uttered through a TV program in a live broadcast, and therefore, it is not possible to re-formulate, change or withdraw the expressions used in such an atmosphere before announcing them to the public. Regard being had to these considerations, the investigation authorities failed to demonstrate the factual basis for the assertion that the applicant had uttered the words in order to pave the way for the coup attempt.

Besides, the applicant was alleged to act in line with the aims of the FETÖ/ PDY on account of the article titled “Turbulence”, which was published by the applicant on his own web-site on 20 July 2016.

In the article, the applicant expressed his doubts as to whether the coup attempt had been conducted only by the members of the FETÖ/PDY, as well as criticized the measures taken in the aftermath of the coup attempt. Opinions which are different from the public authorities’ considerations and those of the majority may be considered to constitute an offence with reference to the aim of the person expressing them only when this aim is demonstrated with concrete facts other than the contents of the expressions. However, the investigation authorities failed to demonstrate the facts which would form the opinion that the applicant had acted in line with the aims of the FETÖ/PDY in writing the article.

In reaching the conclusions that the applicant had acted in line with the aims of the FETÖ/PDY and that he had a link with this organization, the investigation authorities relied on the abstract expression of a witness, one dollar banknote found during the search carried out in the applicant’s house, non-inclusion of the applicant in any investigation conducted by the judicial structure of the FETÖ/PDY, his phone conversations —time and content of which are not specified— with certain persons, and his account in the Bank Asya. However, the investigation authorities failed to demonstrate any concrete fact which would refute the applicant’s defence submissions —that may be regarded as a reasonable version of events—about the allegations pertaining to banknote, bank account, non-inclusion in an investigation and phone conversation. Nor did the witness, in his statement, provide any information about a concrete action performed by the applicant.

Finally, in his opinion as to the merits, the public prosecutor also relied, as criminal evidence, on certain correspondences exchanged through “Bylock”. These correspondences were exchanged among persons other than the applicant. In these correspondences, there are certain expressions with respect to the applicant. However, given the particular circumstances of the case and the content of the expressions used with respect to the applicant, such expressions cannot per se considered as a strong indication of guilt.

In this respect, it has been concluded that “the strong indication of guilt” could not be sufficiently demonstrated in the present case.

It has been further considered that nor does Article 15 of the Constitution, which prescribes the suspension and restriction of fundamental rights and freedoms in time of a “state of emergency”, justify the interference with the applicant’s right to personal liberty and security in breach of the safeguards set out in Article 19 § 3 of the Constitution.

For these reasons, it has been concluded that, also in conjunction with Article 15 of the Constitution, the applicant’s right to personal liberty and security was breached.

Alleged Violation of the Freedom of Expression

Freedom of expression enshrined in Article 26 of the Constitution and freedom of the press, another form of the freedom of expression which is subject to special safeguards enshrined in Article 28 of the Constitution, constitutes one of the main pillars of a democratic society and conditions sine qua non for the progress of the society and the improvement of individuals.

In spite of their significance in a democratic society, the freedoms of expression and press are not absolute and may be subject to certain restrictions, provided that the safeguards set out in Article 13 of the Constitution are complied with. Unless it complies with the requirements of Article 13 of the Constitution concerning the restriction of fundamental rights and freedoms, an interference with the freedoms of expression and press would be in breach of Articles 26 and 28 of the Constitution in addition to Article 13. Therefore, it must be determined whether an interference complies with the requirements of being prescribed by law, relying on one or more justified grounds specified in the relevant provisions of the Constitution, and not being contrary to the requirements of a democratic society, as well as the principle of proportionality, which are enshrined in Article 13 of the Constitution.

It is obvious that public authorities have a margin of appreciation in respect of the requirement of being compatible with the requirements of a democratic society and the principle of proportionality. However, in interfering with the freedoms of expression and press as a result of the exercise of this discretionary power, the public authorities must show “relevant and sufficient” grounds. It is for the Constitutional Court to make the final assessment as to whether an interference to be made within this scope complies with the safeguards enshrined in the Constitution. The Constitutional Court makes such an assessment on the basis of the grounds given by the public authorities and especially by the inferior courts.

Regard being had to the questions directed to the applicant by the investigation authorities and the grounds of his detention order, it appears that the applicant is charged principally on account of his articles and speeches. Accordingly, it has been revealed that, irrespective of the content of the articles and the speeches, the applicant’s detention also constitutes a breach of the freedoms of expression and press, along with the right to personal liberty and security.

In the present case, it is obvious that the interference is prescribed by law. The applicant has been detained on remand for allegedly writing articles and delivering speeches in line with the aims of the FETÖ/PDY, which has carried out activities against the national security and is the organization behind the coup attempt. Therefore, it has been concluded that the interference with applicant’s freedoms of expression and press pursued a legitimate aim in accordance with the grounds specified in the Constitution.

Having a legal basis and achieving a legitimate aim, however, do not suffice for the interference to be in conformity with the Constitution. For an assessment as to whether the applicant’s detention has constituted a breach of the freedoms of expression and press, the present case must be examined also in terms of the requirement of being necessary in a democratic society and the principle of proportionality. The Constitutional Court makes this examination over the detention process and the reasoning of the detention order.

Regard being had to the above-mentioned findings with respect to the lawfulness of the detention and the fact that the main basis for the accusations against the applicant is his articles and speeches, a severe measure such as detention, which already has been founded to lack the lawfulness above, cannot be regarded as a necessary and proportionate interference in a democratic society in terms of the freedoms of expression and press.

Moreover, a measure interfering with the freedoms of expression and press must meet a pressing social need and must be a measure of last resort. A measure failing to achieve these requirements cannot be considered to comply with the requirements of a democratic society. It cannot be comprehended, from the circumstances of the present case and reasoning of the detention order, on what “pressing social need” the applicant’s freedoms of expression and press were interfered, considering that the applicant expressed some ideas that were embraced by certain segment of the public. On the same ground, it cannot be concluded that the interference was necessary in a democratic society.

Besides, in making an assessment as to the requirement of being necessary in a democratic society and proportionality, possible “deterring effect” of the interferences with the freedoms of expression and press on the applicants and generally on the media must also be taken into consideration. In the present case, it is explicit that the applicant’s being detained on remand without providing any concrete fact, other than the articles published, may also have a deterrent effect on the freedoms of expression and press.

For these reasons, it has been concluded that resorting to detention measure in respect of the applicant mainly on the basis of his articles and speeches and without establishing strong indications of guilt is contrary to the safeguards set out in Articles 26 and 28 of the Constitution with respect to the freedoms of expression and press.

It has been also concluded that nor does Article 15 of the Constitution, which prescribes the suspension and restriction of fundamental rights and freedoms in time of a “state of emergency”, justify this interference.

For these reasons, it has been held that, also in conjunction with Article 15 of the Constitution, the applicant’s freedoms of expression and press were violated.

Alleged Unlawfulness of the Applicant’s Custody

The Constitutional Court declared the applicant’s allegation regarding the custodial measures inadmissible for non-exhaustion of available remedies.

Alleged Restriction Imposed on the Access to the Investigation File

The Constitutional Court declared the applicant’s allegation under this heading inadmissible as being manifestly ill-founded.

Alleged Contradiction of the Magistrate Judge’s Offices with the Requirements of Independent and Impartial Judge

The Constitutional Court declared inadmissible the applicant’s allegation as to the independence and impartiality of magistrate judgeship as being manifestly ill-founded.

Allegation that Judicial Review of His Detention was carried out without a Hearing

The Constitutional Court declared inadmissible the applicant’s allegation under this heading as being manifestly ill-founded.

Alleged Violation of the Prohibition of Ill-Treatment

The Constitutional Court declared the applicant’s allegation under this heading inadmissible for non-exhaustion of available remedies.

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