REPUBLIC OF TURKEY
CONSTITUTIONAL COURT
PLENARY
DECISION
SELAHATTİN DEMİRTAŞ
(Application no. 2016/25189)
21 December 2017
On 21 December 2017, the Plenary of the Constitutional Court declared inadmissible the individual application lodged by Selahattin Demirtaş (no. 2016/25189).
THE FACTS
[9-90] The applicant is currently a member of the Parliament and the Co-Chairperson of the HDP. He was elected from the İstanbul district as the candidate of the HDP on 1 November 2015. A number of investigations were conducted against the applicant by various chief public prosecutor’s offices for certain offences allegedly committed when he was an MP, and thirty one separate motions were drawn up for lifting his parliamentary immunity.
In the meantime, a provisional article was added to the Constitution for lifting parliamentary immunities for the pending motions (Law no. 6718, Article 1, published at the official gazette on 8 June 2016). Provisional article 20 provides that parliamentary immunity shall not be applicable to motions for lifting immunities submitted to competent authorities by 20 May 2016, the date of adoption of this provisional article by the Grand National Assembly of Turkey (“the GNAT”).
Because the investigation files against the applicant also fell within the scope of the provisional article, the necessary action was taken, and those files were joined and handled by the Diyarbakır Chief Public Prosecutor’s Office (“the Prosecutor’s Office”).
The applicant was summoned by the investigation authorities for taking his statement. Numerous summons issued to that end were served on the applicant on 12 July, 15 July, 28 July, 12 August, 6 September and 11 October 2016. However, he failed to comply with these summons. Furthermore, after the constitutional amendment proposal concerning the parliamentary immunity had been brought before the GNAT, the applicant expressly noted in his speech that absolutely no MP would appear before the prosecutor’s offices for giving statement.
On 4 November 2016, the applicant was taken into custody at his house located in Diyarbakır and subsequently taken to the Prosecutor’s Office. On the same date the Prosecutor’s Office referred the applicant to the Diyarbakır 2nd Magistrate Judge’s Office with a request of his detention. By the decision of the Judge’s Office dated 4 November 2016, the applicant’s detention was ordered for his alleged membership of an armed terrorist organization and for public incitement to commit a criminal offence.
On 11 January 2017, the Prosecutor’s Office indicted the applicant for the offences of establishing or managing an armed terrorist organization, making propaganda of a terrorist organization, praising an offence and offender, publicly inciting hatred and hostility, provocation to disobey the Law, organizing, conducting and participating in unlawful meetings and demonstration marches, participating in unlawful meetings and marches without arms and not dispersing willingly despite warnings, publicly inciting to commit an offence, and inciting unlawful meetings and demonstration marches.
On 2 February 2017, the 8th Chamber of the Diyarbakır Assize Court applied to the Ministry of Justice for the transfer of the applicant’s case for public security reasons. The 5th Criminal Chamber of the Court of Cassation, upon examining the Ministry’s request to that end, referred the case to the 19th Chamber of the Ankara Assize Court. The case was joined with another file, and then separated. Following these processes, the case was pending before the first instance court as of the date when this individual application is examined by the Constitutional Court. The applicant is still detained on remand within the scope of the case-file no. E. 2017/189.
V. EXAMINATION AND GROUNDS
91. The Constitutional Court, at its session of 21 December 2017, examined the application and decided as follows.
A. Alleged Violation of the Right to Personal Liberty and Security
1. Alleged Unlawfulness of the Applicant’s Arrest and Police Custody
a. The Applicant’s Allegations and the Ministry’s Observations
92. The applicant maintained that his right to personal liberty and security safeguarded by Article 19 of the Constitution was violated, indicating that he was arrested and taken into police custody in breach of the procedures prescribed by the Constitution and the relevant law although he should have been questioned without being taking into custody in his capacity as a Member of Parliament (MP) as well as the co-chairman of the People’s Democratic Party (HDP), the third largest group in the Turkish parliament, which was a disproportionate measure.
93. In its observations, the Ministry stated that the right to challenge a custody order was prescribed in the Code of Criminal Procedure no. 5271 (“Code no. 5271” or “the CCP”) which also offered a compensation remedy; and that the applicant did not, however, resort to these procedural remedies.
94. In his counter-observations, the applicant reiterated his allegations indicated in the application form and accordingly alleged he was arrested and taken into custody both unlawfully and unconstitutionally due to his opinions and explanations falling into the scope of the freedom of expression, in spite of still being under parliamentary immunity.
b. The Court’s Assessment
95. 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”.
96. Article 45 § 2, titled “Right to individual application”, of the Code no. 6216 on Establishment and Rules of Procedures of the Constitutional Court, dated 30 March 2011, 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”.
97. Pursuant to the said provisions of the Constitution and the CCP, in order for an individual application to be lodged with the Court, ordinary legal remedies must be exhausted. It is the constitutional task of all State bodies to respect for fundamental rights and freedoms, and it is incumbent on the administrative and judicial authorities to redress any breach of right caused by the neglect of that task. Therefore, it is essential that the alleged violations of fundamental rights and freedoms be primarily brought before, dealt with and concluded by inferior courts. Accordingly, the individual application to the Constitutional Court is a remedy of subsidiary nature which may be resorted in case of inferior court’s failure to redress the alleged violations (see Ayşe Zıraman and Cennet Yeşilyurt, no. 2012/403, 26 March 2013, §§ 16 and 17).
98. However, the remedies to be exhausted must be accessible, capable of providing redress in respect of the applicant’s complaints and offer reasonable prospects of success. Accordingly, the existence of such remedies must be sufficiently certain not only in theory but also in practice, or at least proven not to be ineffective (see Ramazan Aras, no. 2012/239, 2 July 2013, § 29).
99. In this respect, it appears that Article 141 § 1 of Code no. 5271 titled compensation claim -where it is laid down that those who have been arrested, taken into or kept in detention under conditions or in circumstances not complying with the laws as well as those who are detained lawfully but has not been brought before a judicial authority and has not obtained a verdict, within a reasonable time may claim compensation from the State for their any kind of pecuniary and non-pecuniary damages- is a remedy of such kind. It is also set out in Article 142 § 1 of the same Law where the conditions for compensation claims are specified that the claim for compensation may be lodged within three months after the person concerned has been informed that the decision or judgment has become final, and in any event within one year after the decision or judgment has become final. (see Zeki Orman, no. 2014/8797, 11 January 2017, § 27).
100. With reference to the relevant case-law of the Court of Cassation, the Court has concluded that it is not necessary to wait for a final decision on the merits of the case before ruling on a compensation claim lodged under Article 141 of the CCP due to alleged excessive length of pre-trial detention or alleged unlawfulness of arrest or detention; and that this opportunity to lodge a compensation claim is an effective legal remedy required 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; and İbrahim Sönmez and Nazmiye Kaya, no. 2013/3193, 15 October 2015, §§ 34-47).
101. Finding 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, 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 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).
102. In the present case, the alleged unlawfulness of the decision ordering the applicant’s custody may be examined through an action to be brought under Article 141 of the 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.
103. It has been accordingly concluded that the remedy provided by Article 141 of the CCP no. 5271 is an effective remedy capable of offering redress for the applicant’s complaints; and that the examination by the Court of individual applications lodged without exhaustion of this ordinary remedy does not comply with the “subsidiary nature” of the individual application system.
104. 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.
105. 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 arrest and custody.
2. Alleged Unlawfulness of Detention
106. Maintaining that he had been detained contrary to the procedure prescribed by the Constitution after his parliamentary immunity being lifted; and that the imputed acts indeed fell into the scope of the freedom of expression and right to engage in political activities, the applicant alleged that his detention was unlawful.
107. The applicant considered that all of the imputed acts, which were the speeches he had made, in his capacity as an MP and chairperson of a political party, on different dates during the events such as meetings, press statements or conferences, should have been considered under the freedom of expression; and that however, they were regarded to constitute an offence.
108. He also argued that his detention order was unlawful; that decisions ordering his detention and rejecting his challenge against detention were lack of any concrete and legal grounds; and that there was no strong criminal suspicion of guilt. He asserted that although he should have been provided with the opportunity of conditional bail as a political figure, his detention was ordered in breach of the principle of proportionality; that his detention order was issued six months after the relevant amendment to the Constitution; and that as his impugned expressions were dated back to a few years ago and all evidence was already collected, there was no risk of his fleeing.
109. Besides, the applicant maintained that the detention order aimed at preventing his political activities as an MP and the co-chairperson of the HDP as well as his punishment due to these activities. He considered that the detention order had a political motive which was contrary to the motives specified in the Constitution; and that he was precluded from performing his political activities as an MP due to his detention on remand.
110. Consequently, the applicant maintained that his rights to personal liberty and security as well as to a fair trial safeguarded respectively by Articles 19 and 36 of the Constitution and by Articles 5 §§ (1) and (3) and Article 6 §§ (1) and (3) of the European Convention on Human Rights (“Convention”) were breached. He also requested his release.
111. In his additional written submission of 26 July 2017, the applicant maintained that as his detention order aimed at precluding him from engaging in political activities and representing his electors as well as at punishing him due to his such political activities.
112. In its observations, the Ministry referring to the similar judgments concerning detention rendered by the Constitutional Court and the European Court of Human Rights (“the ECHR”) noted that the relevant court had taken an individualized approach in issuing the detention order, demonstrated plausible evidence to suspect that the applicant had committed an offence, explained the reasons for his detention, provided concrete evidence and made an assessment as to the proportionality of his detention.
113. The Ministry also indicated that, through his speech concerning the 6-7 October events, the applicant defended the ditches and trenches dug by the terrorist organization members and called on the people to resist against security officers endeavouring to fill these ditches and trenches; and that the acts performed upon these calls had caused the death and injury of many people as well as damage to public and private buildings. It further stated that in the detention order, these acts were relied on as a ground for strong suspicion of guilt; and that his application must be assessed in the light of these explanations.
114. In his counter-statements, the applicant asserted that the Ministry’s submissions could not be accepted on the grounds that the strong indications specified in the detention order were merely consisted of his speeches falling under the freedom of expression and the rights to assembly and to engage in political activities; that there was no legitimate aim justifying his detention; that the detention measure was of political nature; and that the detention order had no justification.
115. 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.”
116. The first paragraph and the first sentence of the third paragraph of Article 19 of the Constitution, titled “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.”
117. The applicant’s allegations under this section must be examined within the scope of the right to personal liberty and security safeguarded by Article 19 § 3 of the Constitution.
118. Moreover, in his counter-statements against the Ministry’s opinion, the applicant raised new complaints -which had not been previously indicated in the application form- to the effect that the decisions ordering his continued decision provided no relevant and sufficient grounds; that the opinion of the prosecutor’s office concerning the continued detention was not notified to them; that the challenges against his continued detention were not concluded; and that no hearing was held despite the long period having elapsed.
119. In case of detention on a criminal charge, an individual application whereby the applicant alleges that the period of his detention exceeded reasonable time or he was not provided with the procedural safeguards during the judicial review of his detention must be lodged, within the prescribed period upon the exhaustion of available remedies or following his release, at every stage when his continued detention is ordered pending the investigation or first-instance proceedings against him (see Mehmet Emin Kılıç, no. 2013/5267, 7 March 2014, § 28). Accordingly, the applicant whose trial has been pending before the 19th Chamber of the Ankara Assize Court still has the opportunity to bring his complaints concerning the reasonable time requirement as well as concerning the procedural aspect of his detention reviews before the Court, at every stage when his continued detention is ordered pending his first-instance proceedings, by once again lodging an individual application within the prescribed period upon exhausting the legal remedies. However, he must satisfy the necessary procedural obligations such as to fill in a fresh application form and to pay the application fee. This is the only possible way for the Court to examine the applicant’s abovementioned complaints under Article 19 §§ 7 and 8 of the Constitution.
120. Therefore, the Court did not make a further examination as to the complaints subsequently raised by the applicant.
i. General Principles
121. 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, certain circumstances under which individuals may be deprived of liberty are set forth, provided that the conditions of detention must be prescribed by law. Therefore, a person may be deprived of his liberty only in cases where one of the circumstances specified in this article exists (see Murat Narman, no. 2012/1137, 2 July 2013, § 42).
122. 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 (see Halas Aslan, no. 2014/4994, 16 February 2017, §§ 53 and 54).
123. In Article 13 of the Constitution, it is set forth that fundamental rights and freedoms may be restricted only by law. Article 19 of the Constitution also provides for that terms and conditions under which the individual’s right to personal liberty and security may be restricted are to be prescribed by law. Therefore, detention constituting an interference with the individual’s personal liberty must have a legal basis pursuant to Articles 13 and 19 of the Constitution (see Murat Narman, § 43; and Halas Aslan, § 55).
124. As set out in Article 19 § 3 of the Constitution, individuals under a strong suspicion of criminal guilt may be apprehended by decision of a judge solely for the purposes of preventing the risk of their fleeing, destroying or altering the evidence as well as in other circumstances prescribed by law and necessitating detention (see Halas Aslan, § 57).
125. 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, the accusation needs to be supported with convincing evidence likely to be regarded as strong. Nature of the facts likely to be regarded as convincing evidence mainly depends on the particular circumstances of every concrete case (see Mustafa Ali Balbay, § 72).
126. In case of an initial detention, it may not be always possible to show 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, § 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, § 73).
127. 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 sine qua non for a democratic society such as the freedom of expression, right to trade-union freedom and 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 the duty of diligence has been fulfilled is subject to the Court’s review (for a violation judgment rendered at the end of such review, see Erdem Gül and Can Dündar [Plenary], no. 2015/18567, 25 February 2016, §§ 72-78; and for inadmissibility decisions, see Mustafa Ali Balbay, § 73; 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).
128. Besides, it is set forth in Article 19 § 3 of the Constitution that a detention order may be issued for the purposes of preventing the risk of “fleeing” or “destroying or altering the evidence”. The constitution-maker has also laid down the phrase “in other circumstances prescribed by law and necessitating detention” whereby it is implied that the grounds for detention are not limited to those specified in the Constitution and any such ground other than the specified ones may be regulated only by law (see Halas Aslan, § 58).
129. Article 100 of Code no. 5271 embodies the grounds for detention. Accordingly, a detention order may be issued if the suspect or accused flees, absconds or there exists concrete evidence causing suspicion to that effect and if his behaviours cause strong suspicion that he attempts to destroy, conceal or alter the evidence or to exercise pressure on the witnesses, victims or others. This Article also provides a list of offences for which there is a statutory presumption of the existence of grounds for detention (see Ramazan Aras, § 46; and Halas Aslan, § 59). However, in case of an initial detention, it may not be always possible, by its very nature, to concretely specify all facts forming a basis for the grounds for detention prescribed in the Constitution and Law (see Selçuk Özdemir [Plenary], no. 2016/49158, 26 July 2017, § 68).
130. On the other hand, Article 13 of the Constitution provides for that any restriction with fundamental rights and freedoms cannot fall foul of the principle of “proportionality”. The phrase “necessitating detention” included in Article 19 § 3 of the Constitution also points out the requirement that detention must be proportionate (see Halas Aslan, § 72).
131. This principle is formed of three sub-principles, namely “sufficiency”, “necessity” and “proportionality”. “Sufficiency” means that the envisaged interference must be sufficient for attaining the desired aim; “necessity” means that the interference must be necessary for the desired aim, in other words, it is not possible to attain the said aim through a less severe interference; and “proportionality” means a reasonable balance must be struck between the interference and the aim sought to be attained (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).
132. One of the factors to be taken into consideration is the fact that the detention measure is to be proportionate to the gravity of the imputed offence as well as to severity of the sanction to be imposed. As a matter of fact, Article 100 of Code no. 5271 indicates that a detention order cannot be issued if the gravity of the act is not in proportion with the expected penalty or security measures to be taken (see Halas Aslan, § 72).
133. Besides, detention measure may be said to be proportionate only when the other preventive measures alternative to detention are not sufficient. Accordingly, in the event that requirements of conditional bail -having a lesser impact on fundamental rights and freedoms as compared to detention- are sufficient for the legitimate aim sought to be achieved, detention measure must not be applied, which is also pointed out by Article 101 § 1 of Code no. 5271 (see Halas Aslan, § 79).
134. 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.
135. However, it is the Constitutional Court’s duty to review whether the judicial authorities have exceeded the discretion conferred upon them. The Constitutional Court’s review must be conducted especially over the detention process and the grounds of detention order by having regard to the circumstances of the concrete case (see Erdem Gül and Can Dündar, § 79; and Selçuk Özdemir, § 76). 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 the detention measure will be justified with concrete facts and clearly demonstrated (see Halas Aslan, § 75; and Selçuk Özdemir, § 67).
ii. Application of Principles to the Present Case
136. In the present case, it must be primarily ascertained whether the applicant’s detention had a legal basis. His detention was ordered due to his acts specified in thirty-one investigation reports, pursuant to Article 100 of Code no. 5271, for his alleged membership of an armed terrorist organization, namely the PKK, and public incitement to commit an offence.
137. The applicant also complained that his parliamentary immunity was lifted in breach of the constitutional procedure and he must be therefore ensured to enjoy this immunity; and that his detention could not be ordered.
138. Article 83 § 2 in limine of the Constitution sets forth that an MP who is alleged to have committed an offence prior or subsequent to election shall not be arrested, questioned, detained or tried “unless the Assembly decides otherwise”.
139. However, by Provisional Article 20 added to the Constitution by Article 1 of Law no. 6718, it is set forth that motions for lifting parliamentary immunity which have been submitted to the Ministry of Justice, the Prime Ministry, the Office of the Speaker of the Grand National Assembly of Turkey (“GNAT or Assembly”) or to the Office of the Joint Committee composed of the members of the Committees on the Constitution and on Justice by 20 May 2016 -the date of adoption of this article in the Grand National Assembly of Turkey- shall be exempt from the parliamentary immunity enshrined in Article 83 § 2 in limine of the Constitution.
140. A request for annulment of the above-cited legal arrangement was filed with the Court by 70 MPs including the applicant, maintaining that “this arrangement was in the form of an Assembly’s resolution on lifting the parliamentary immunity”. The Court concluded that it was not a resolution as regards lifting parliamentary immunity under Article 85 of the Constitution, but a constitutional amendment. It also dismissed the request due to the failure to pursue the procedure as regards the request for annulment of constitutional amendments (see the Court’s judgment no. E.2016/54 K.2016/117, 3 June 2016, §§ 4-15).
141. Regard being had to the Constitutional Court’s above-mentioned decision, it appears that in the present case, no decision for lifting the applicant’s parliamentary immunity has been taken; but an exemption to parliamentary immunity has been introduced by the constitutional amendment with respect to the motions at certain stages. As a matter of fact, the applicant raised no allegation that the offences imputed to him fell outside this exemption.
142. As a matter of fact, in ordering the applicant’s detention, the Ankara 2nd Magistrate’s Judge stated “By virtue of Provisional Article 20 added to the Turkish Constitution by Article 1 of Law no. 6718, the imputed offences are not within the scope of parliamentary immunity, and therefore investigation and prosecution into these acts may be conducted”.
143. Therefore, it cannot be said under the specific circumstances of the present case that the applicant’s detention cannot be ordered for his enjoying parliamentary immunity. Accordingly, it has been concluded that the detention measure applied in respect of him had a legal basis.
144. Before proceeding with an assessment as to whether the detention measure revealed to have a legal basis has a legitimate aim and is proportionate, it must be determined whether there is strong indication of the applicant’s having committed an offence, which is the prerequisite of the detention.
145. Referring to the facts within the scope of the “6-7 October events”, “ditch events”, the applicant’s certain speeches and activities within the Democratic Society Congress (DTK), the Diyarbakır 2nd Magistrate Judge ordering the applicant’s detention concluded that there was strong criminal suspicion on his part for the alleged membership of an armed terrorist organization, the PKK, and for public incitement to commit an offence.
146. The investigation authorities found that when an armed conflict erupted in Kobani between the PYD—considered to be the PKK’s Syrian wing—and the DAESH during the Syrian civil war, a call was made on 5 October 2014 through a social media account associated with the PKK to provoke people to defend Kobani and to occupy cities in Turkey for this cause. The next day, a public statement was made through the HDP’s social media account that its Central Executive Board had convened with the agenda of Kobani events. Through this statement people were also called to take immediate action and to pour out into the streets for supporting those who had been already fighting to protect regions. It was also stated therein “Everywhere is Kobani from now on. We call for permanent resistance FOR AN INDEFINITE PERIOD OF TIME until the end of the siege and brutal aggression in Kobani” (“Bundan böyle her yer Kobane’dir. Kobane’deki kuşatma ve vahşi saldırganlık son bulana kadar SÜRESİZ DİRENİŞE çağırıyoruz”). In the meantime and thereafter, continuous announcements and calls were made through a web site operating under the PKK’s guidance for urging people to uprising and engage in armed conflicts on streets with security forces. Upon these calls, mass violent acts took place. These violent acts —which created a great public disturbance and resulted in a great number of casualties including many dead and vandalizing of public and private property—started on 6 October 2014, lasted for days and spread to many regions of the country.
147. The applicant noted through his press statement that the call by the HDP’s Central Executive Committee was made upon having heard that the DAESH had been getting closer to Turkey’s border and was not a call for violence; that the demonstrations had gone beyond its purpose and violent acts took place on account of provocateurs; and that they stood behind the call.
148. It is undoubted that a call was made through HDP’s social media account, on its Central Executive Committee’s behalf, to incite people to pour out into the streets and join the resistance; and that the applicant was at that time the co-chairman of the party and a member of the Central Executive Committee.
149. This call was made at a time when the internal conflict in Syria had posed a threat to national security in Turkey, following armed clashes between the PYD and the DAESH in Kobani. It must be further emphasized that this call was made on the next day of the call “to occupy the metropolitan cities” in Turkey by a leader of the PKK terrorist organization, which is one of the parties of the clashes, on the pretext of the incidents taking place in Kobani. Besides, the statement published on the same day via a web-site operating under the guidance of the PKK contained discriminatory statements and made a call to extend the uprising to the maximum level by using the phrase “make life unbearable” for a political party.
150. The applicant should have foreseen that the call made for uprising in favour of a terrorist organization upon the conflicts that took place in Kobani between two terrorist organizations might have led to widespread mass violent acts in Turkey, which would undoubtedly disturb the public order. It is also clear that the civil war in Syria posed a serious threat to the national security of Turkey due to its location. It is undeniable that in this atmosphere, such a call, which was made from the social media account of the HDP on behalf of the HDP’s Central Executive Board, would highly influence a certain part of the community. As a matter of fact, the mass violent acts started right after these calls were made and spread gradually over time. Accordingly, it has been observed that the investigation authorities relied on factual and legal grounds while establishing a causal link between the calls made on behalf of the HDP’s Central Executive Board and the PKK, as well as between the calls and the violent acts in question.
151. Furthermore, during the period when the terrorist events known as “ditch events” occurred, the PKK tried to gain dominance over some parts of the provinces located in the eastern and south-eastern regions of Turkey. To that end, the PKK dug ditches, constructed barricades and planted bombs and explosives in these barricades, thereby trying to gain dominance in these cities under the name of “self-governance”. The security officers carried out operations for the purpose of filling these ditches and removing the barricades, thereby returning the life to normal. During these operations, many heavy weapons and explosives were seized, the ditches were filled, the barricades were removed, and many terrorists were neutralized.
152. According to the investigation authorities, in his public speech delivered in Cizre at the time of these events, the applicant stated “they are considering to prevent once again, by tanks and guns, the understanding adopted by people … to have the ability to govern themselves through self-governance” (“halkın özyönetimle artık ben kendimi yönetmek istiyorum … anlayışının bir kez daha tankla, topla durdurabileceklerini sanıyorlar”). In his speech in Cizre, he noted “Our people have the power to resist against pressure and massacre policies everywhere. We have the power to protect ourselves against any attack. We will show that we are not despairing; we will resist together; we will achieve salvation without forgetting our motherland and history and by defending our rights” (“Halkımız atananların değil seçilmişlerin yetkili olduğu kendi meclisleri ile belediye ile kendini yönetmek istiyor. Halkımız her yerde baskı politikalarına katliam politikalarına karşı direnebilecek güçtedir. Bütün saldırılara karşı kendimizi koruyacak gücümüz var. Çaresiz olmadığımızı gösteriyoruz, birlikte direneceğiz, kendi ana vatanımızı da tarihimizi de unutmadan haklarımızı da savunarak hep birlikte kurtuluşa gideceğiz”). In his speech in Diyarbakır, he stated “Everywhere you carry out operations is filled with an atmosphere of enthusiasm rather than fear and panic. Do you know why? Because these people are so sure that they will triumph from the very first day… We will not let cruelty and fascism win any more; this resistance will triumph. Those who try to downplay it by calling it ditches and holes should look back at history. There are tens of millions of heroes and brave people resisting against this coup. You are waging a war against the people. The people are resisting and will resist everywhere.” (“Bugün operasyon yaptığınız her yerde korku ve panik havası değil coşku havası hakim. Neden biliyor musunuz? O insanlar daha ilk günden kazandıklarından o kadar eminler ki… Bir kez daha zulmün, faşizmin kazanmasına izin vermeyeceğiz, bu direniş kazanacaktır. Öyle hendek, çukur diye küçümsemeye çalışanlar da dönüp tarihe baksınlar. On milyonlarca kahraman, yiğit bu darbeye karşı direnen insan var. Sen halka karşı savaş açmışsın. Halk her yerde direnir, direnecektir”). In his last speech, the applicant also noted that significant decisions concerning the management of “self-governance” process on the political grounds would be taken at the extraordinary meeting of the Democratic Society Congress and would be materialized.
153. In his speech in this congress in 2015, the applicant noted “We are expressing these facts as a reply to unproductive discussion that barricades and ditches have emerged as a result of the “self-governance” demands. Barricades and ditches have not been established as the Kurdish people want “self-governance” but as those making massacre plans in Ankara have started to realize their plans… It is neither a matter of ditch not a barricade. This question cannot be underestimated. The reason behind barricades and ditches is the stance against and resistance to fascism and massacre. It does not mean that autonomy is represented by barricades and ditches. Autonomy is … the right to live in dignity. If any person does not respect it or says ‘those wanting autonomy will be detained, destroyed or forced to kneel down’, then it is not unreasonable to set barricades and dig ditches” (“Barikat ve hendek öz yönetim taleplerinin sonucunda ortaya çıktı gibi kısır bir tartışmaya bir cevap olsun diye bunları ifade ediyoruz. Barikat ve hendek Kürt halkı öz yönetim istediği için kazılmadı. Barikat ve hendek Ankara’da katliam planları yapanlar o planları hayata geçirmeye başladığı için kazıldı… Ne hendeği ne barikatı mevzu oralara kadar küçümsenemez. Hendekteki barikattaki direnişin nedeni faşizme karşı katliama karşı duruş ve direniştir. Özerklik eşittir hendek barikat değildir. Özerklik … onurlu yaşama hakkıdır eğer biri bunu kabul etmiyor, … bunu aklından geçirenleri ‘ben tutuklayacağım, katledeceğim, diz çöktüreceğim’ diyorsa vallahi o barikat hendek kazmışlar çok değil”). He also added “I thank to my fellows who have been resisting … We once again reiterate our loyalty to our each and every fellow … struggling at the risk of his/her life, his/her families as well as our martyrs” (Direnen arkadaşlarımıza … teşekkür ediyorum. Canını ortaya koyan … her bir arkadaşımıza, ailelerine, şehitlerimize bir kez daha vefa ve bağlılık sözümüzü tekrar ediyoruz”).
154. In his speech delivered on 26 March 2016 at the extraordinary Democratic Society Congress in Diyarbakır pending the ditch events, the applicant stated “… The struggle taking place today in Cizre, Silopi, Yüksekova, Sur, Nusaybin or any other place is not against terrorism and terrorists… A community is completely presented as a target… If you have declared all Kurds in pursuit of their rights and freedom as terrorist and said necessary step will be taken, the community with a population of 15 million for sure shows resistance to your fascist practices. Then the resistance becomes justified. Otherwise, war is not justified There cannot be no justified war. But resistance is justified…” (“… Bugün Cizre’de, Silopi’de, Yüksekova’da, Sur’da veya başka bir yerde, Nusaybin’de teröre ve teröriste karşı mücadele edilmiyor… Bir halkın tamamı hedefe konulmuş durumdadır… hak ve özgürlük isteyen Kürtlerin hepsini terrorist ilan edip gereğini yapacağım derseniz, 15 milyonluk halk da elinde ne imkan varsa sizing faşist uygulamalarınıza karşı tabi ki direnir. Orada direniş meşru olur. Yoksa savaş meşru bir şey değildir. Savaşın meşruiyeti olmaz. Direniş meşrudur…”).
155. These speeches were delivered mainly at the region where the “ditch events” intensively took place. In this respect, given the applicant’s political position, the time and period of the impugned speeches as well as their contents and contexts, the investigation authorities’ acknowledgement that his speeches were an indication of his having committed a terrorism-related offence cannot be said to be unfounded.
156. The applicant was also charged by the investigation authorities on account of certain speeches delivered by him in 2012 and 2013. In this respect, according to the findings of the investigation authorities, in his speech delivered in Kızıltepe in 2012 with a view to giving support to the indefinite hunger strike launched at prisoners by prisoners throughout the country in protest against the conditions of Abdullah Öcalan’s detention, he noted “They said you couldn’t put up the poster of Öcalan. Those who said it ... Let me speak clearly. We are going to put up a sculpture of President Apo.” (“Demişler ki Öcalan posteri asamazsınız. Onu diyenlere açıkça sesleniyorum... Biz başkan Apo’nun heykelini dikeceğiz heykelini.”). He also made the following statements in Diyarbakır in 2013 “The Kurdish movement used to see the war as a war of self-defence… Today, those who criticise us also say that the Kurdish people would not exist, at least in Turkish Kurdistan, without the PKK movement. You could not speak of the existence of Kurds in Turkish Kurdistan. Without the coup in 1984 [the year of the first PKK attacks], without the guerrillas, no one today could speak of the existence of the Kurdish people; the Kurds would have no other choice. ... At the time of the initial resistance in Şemdinli [and] Eruh [the first terrorist attacks by the PKK, carried out in the Şemdinli district in Hakkari and the Eruh district in Siirt on 15 August 1984], no one was aware of what was happening but the resistance has today created [the] reality of the [Kurdish] people. We have gained our identity.” (“Kürt hareketi savaşı meşru müdafaa savaşı olarak ele aldı…PKK hareketi olmasaydı bugün Kürt halkı diye bir şey Türkiye Kürdistan’ı için en azından olmayacaktı. Türkiye Kürdistanı’nda Kürtlerin varlığından söz edilmeyecekti. 1984 hamlesi olmasaydı, gerilla savaşı olmasıydı, kimse bugün Kürt halkının varlığından söz edemezdi, çünkü Kürtlerin başka çaresi yoktu. ... Şemdinli’de Eruh’ta ilk direniş sergilendiğinde kimse ne olduğunun farkında değildi ama o direniş bugün büyük bir halk gerçeği yarattı. Kimliğimizi kazandık.”). Therefore, the acknowledgement that the applicant’s speeches affirming the terrorist acts of the PKK were an indication of his having committed a terror-related offence cannot be said to be unfounded.
157. Lastly, it was maintained that the applicant had acted in accordance with the instructions given by the heads of the PKK terrorist organization. Regard being had to a document where it is indicated that a visit would be paid by a group including the applicant to the family of a organization member “who had been mistakenly executed” and that a letter of apology issued by the organization would be delivered to the family -the document allegedly containing the instructions of Sabri Ok stated to be one of the founders and high-level heads of the PKK terrorist organization- as well as to the contents of the phone conversations -alleged to have taken place between Sabri Ok and K.Y., who is stated to be a head of the terrorist organization, and between the applicant and K.Y.- concerning the participation of the applicant himself in a negotiation for which an appointment was made with Council of Europe, the consideration of the investigation authorities that the applicant acted in accordance with the instructions by the terrorist organization’s heads has a factual basis.
158. Therefore, it must be concluded that there is a strong indication of guilt on the part of the applicant.
159. Besides, it must be assessed whether the applicant’s detention in respect of which the prerequisite condition of existence of strong suspicion of guilt has been fulfilled has a legitimate aim.
160. It has been observed that in ordering the applicant’s detention, the Diyarbakır 2nd Magistrate’s Judge relied on the severity of the penalty provided in the law for the alleged membership of an armed terrorist organization and on the fact that the imputed offence was among the catalogue crimes set out in Article 100 § 3 of Code no. 5271.
161. “Membership of an armed terrorist organization” and “inciting to commit an offence” on accounts of which the applicant was arrested are the types of offences punishable with heavy penalties under the Turkish criminal law. Given the severity of the punishment set forth in the law for the imputed offence, it may be concluded that the risk of fleeing exists. Furthermore, the membership of an armed terrorist organization is among the offences enumerated in Article 100 § 3 of Code no. 5271 that are ipso facto presumed as a ground for detention.
162. In addition, it has been observed that upon the entry into force of the constitutional amendment as to the parliamentary immunity, the relevant chief public prosecutor’s offices summoned the applicant many times on different dates for the purpose of taking his statement; however, he failed to comply with these summons. After the constitutional amendment proposal concerning the parliamentary immunity had been brought before the GNAT, the applicant expressly said in his speech delivered on behalf of HDP that absolutely no MP would appear before the prosecutor’s offices for giving statement. Accordingly, it can be said that this attitude of the applicant was beyond a personal approach but rather a planned political attitude that aimed at obstructing the investigation and prosecution processes and would be therefore likely to continue at the subsequent stages.
163. As a result, it has been concluded that the grounds for the applicant’s detention due to the risk of fleeing had factual basis.
164. It must be also ascertained whether the applicant’s detention was proportionate. In determining whether a detention measure is proportionate within the meaning of Articles 13 and 19 of the Constitution, all particular circumstances of the present case must be taken into consideration (see, in the same vein, Aydın Yavuz and Others, § 268; and Selçuk Özdemir, § 76).
165. In this scope, the applicant stated that his detention prevented him from carrying out political activities. Referring to certain decisions of the Constitutional Court, the applicant also maintained that his detention was disproportionate.
166. The Court has not so far rendered any decision as to the alleged unlawfulness of the pre-trial detention of any MP during the period when he has acting as an MP. Nor did the Court make an assessment as to whether the (initial) detention had been lawful in its decisions of Kemal Aktaş and Selma Irmak (no. 2014/85, 3 January 2014), Faysal Sarıyıldız (no. 2014/9, 3 January 2014), İbrahim Ayhan (no. 2013/9895, 2 January 2014) and Gülser Yıldırım (no. 2013/9894, 2 January 2014) where the applicants were elected as an MP while in detention as there was no such allegation. However, in its decisions of Mehmet Haberal (an academician and a doctor of medicine at the time of his detention; subsequently elected as an MP) and Mustafa Ali Balbay (a journalist at the time of his detention; subsequently elected as an MP), the Court found inadmissible the applicants’ allegations that they had been deprived of their liberties in the absence of a strong suspicion of criminal guilt as well as of any grounds of detention (alleged unlawfulness of their detention) for being manifestly ill-founded (see Mehmet Haberal, no. 2012/849, 4 December 2013, §§ 60-78; and Mustafa Ali Balbay, §§ 68-78).
167. In its previous judgments concerning MPs’ detention on remand, the Constitutional Court only examined the complaints concerning “the unreasonable length of detention” in connection with the rights to stand for election and to engage in political activities. In those judgments (see Mehmet Haberal, § 99; Mustafa Ali Balbay, § 114; Kemal Aktaş and Selma Irmak, § 57; Faysal Sarıyıldız, § 57; İbrahim Ayhan, § 56; and Gülser Yıldırım, § 56), it is indicated that deputyship will be taken into consideration in terms of detention only under the following scope:
“…if the person whose continued detention has been ordered is a Member of Parliament, a new conflicting value occurs in addition to those currently existing. Therefore, the public interest being deprived of due to the detained MP’s inability to engage in legislative activities must be also taken into consideration, along with the right to personal liberty and security. Accordingly, in ordering the continued detention of MPs, the courts are to demonstrate, relying on concrete facts, the existence of an interest which overweighs the interest inherent in the exercise of both the right to personal liberty and security and the rights to stand for election as well as to engage in political activities…”.
168. In those above-mentioned judgments, the Court, finding a violation of the right to personal liberty and security concerning MPs, took into consideration the length of the detention period as well as the public interest inherent in the exercise of the right to stand for election and to engage in political activities (4 years 3 months and 22 days in the case of Mehmet Haberal; 4 years and 5 months in the case of Mustafa Ali Balbay; 4 years, 8 months and 16 days in the case of Kemal Aktaş and Selma Irmak; 4 years, 6 months and 15 days in the case of Faysal Sarıyıldız; 3 years, 2 months and 26 days in the case of İbrahim Ayhan; and 3 years, 10 months and 5 days in the case of Gülser Yıldırım).
169. There is no constitutional provision providing that MPs cannot be detained on remand in the event that parliamentary immunity is lifted or a constitutional exception has been introduced in this regard. Contrary to what the applicant submitted, the Constitutional Court did not make any assessment in the above-mentioned decisions that the MPs could not be detained. Accordingly, being an MP does not constitute in itself a protection against detention. Nevertheless, in cases where there are serious allegations that the acts imputed to the MPs fall into the scope of the right to engage in political activities, the courts ordering detention must apply a higher scrutiny in determining whether strong criminal suspicion exists.
170. Similarly, the European Court of Human Rights (“the ECHR”) made no assessment that the detention measure cannot be applied in respect of the MPs under any circumstances or that such a detention would be automatically disproportionate. On the contrary, in the application Sakık and Others v. Turkey, the European Commission of Human Rights (“the Commission”) pointed out that the applicants, whose legislative immunities were lifted and who were subsequently detained, while serving as MPs, on charges of disrupting the unity and the integrity of the State, were convicted of making separatist propaganda and/or membership of an armed organization. It accordingly rejected the alleged unlawfulness of detention. In the course of the examination before the ECHR, the applicants stated that they accepted the conclusion reached by the Commission. According to the ECHR, it was explicit that Article 5 § 1 of the European Convention on Human Rights (“the Convention”) was not violated.
171. Lastly, as a detention order was issued a long time after the date of the imputed acts which were mainly taking place between October 2011 and March 2016, it must be examined in the present case whether the detention –as an element of the principle of proportionality– was “necessary” or not during the investigation. As a matter of fact, the Court also made such assessments in certain applications of similar nature (when there is a significant period of time between the date of offence and date of detention).
172. In this respect, in the judgment Erdem Gül and Can Dündar (§§ 79-81), one of the factors taken into account by the Court finding a violation of the applicants’ right to personal liberty and security is the fact that neither the particular circumstances of the present case nor the grounds of their detention demonstrate which evidence (other than the impugned news) the investigation authorities obtained during the period of nearly six months running from the public announcement that an investigation had been initiated against the applicants to the date they were detained, and thereby why their detention was “necessary”. Nevertheless, in its judgments Mehmet Baransu (§§ 139-141) and Süleyman Bağrıyanık and Others (no. 2015/9756, 16 November 2016, §§ 228-232), the Court found the applicants’ detention necessary, in spite of a long period of time having elapsed between the date of offence and the date of detention, considering that the investigation procedures continued to be conducted and that the investigation authorities did not fail to act.
173. In the present case, it must be primarily borne in mind that pursuant to the first sentence of Article 83 § 2 of the Constitution, the applicant cannot be detained when he enjoys parliamentary immunity. The constitutional amendment introducing an exception to parliamentary immunity for the pending motions entered into force on 8 June 2016. Thereafter, the investigation files against the applicant were sent to the relevant chief public prosecutor’s offices. The applicant was detained approximately 5 months after the entrance into force of the constitutional amendment in question.
174. It appears that after the provisional article had become effective, the necessary actions were taken in due time: motions were drawn up concerning the existing investigation files initiated at various jurisdictional districts, the files were sent to the competent prosecutor’s office and were joined; and summons were issued for taking statement of the applicant. Hence, the public authorities, in particular the investigation authorities, cannot be said to have remained inactive during the investigation process.
175. Besides, 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 crimes -particularly organized crimes- and criminality (see, in the same vein, Süleyman Bağrıyanık and Others, § 241; and Devran Duran, § 64).
176. Regard being had to the abovementioned facts as to the proportionality, the conclusion reached by the Diyarbakır 2nd Magistrate Judge 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.
177. Besides, in view of all abovementioned explanations as to the alleged unlawfulness of the applicant’s detention, there is no circumstance requiring an examination as to the applicant’s allegation that his detention order had a political motive which was contrary to the motives specified in the Constitution.
178. For these reasons, as there was no violation in respect of the alleged unlawfulness of the applicant’s detention, the Court declared this part of the application inadmissible for being manifestly ill-founded.
Mr. Engin YILDIRIM did not agree with this conclusion.
3. Alleged Restriction of Access to the Investigation File
179. The applicant maintained that he had not been informed in detail of the accusations during his custody and statement-taking processes; that his request to examine the investigation file had been rejected due to the “restriction” order; that he had been therefore unaware of the accusations against him and the evidence thereof; and that he had been therefore deprived of the opportunity to self-defence and to challenge as required by the principles of equality of arms and adversarial proceedings. He accordingly alleged that there had been violations of his rights to personal liberty and security safeguarded by Article 19 of the Constitution and Article 5 §§ 2 and 4 of the Convention, as well as to a fair trial safeguarded by Article 36 of the Constitution and Article 6 § 1 of the Convention.
180. In its observations, the Ministry of Justice indicated that the applicant had the opportunity to challenge the restriction order as of the date when he had become aware thereof; however, he did not do so. Reminding that the applicant had refused to give statement and to answer the questions put to him during his questioning by the prosecutor and interrogation by the magistrate judge, the Ministry emphasized that his allegation would be in breach of his duty of honesty. It also underlined that the offences imputed to him and grounds of his detention were explicitly laid down in the detention order and noted that his case must be examined in reference to the similar decisions of the Constitutional Court.
181. In his counter-statements against the Ministry’s observations, the applicant reiterated his allegations included in the application form and maintained that the restriction order had hindered his right to an effective defence against the investigation authorities’ acts.
182. Article 19 § 8 of the Constitution reads as follows:
“Persons whose liberties are restricted for any reason are entitled to apply to the competent judicial authority for speedy conclusion of proceedings regarding their situation and for their immediate release if the restriction imposed upon them is not lawful”.
183. The applicant’s allegations under this heading must be examined within the ambit of the right to personal liberty and security enshrined in Article 19 § 8 of the Constitution.
184. Article 19 § 4 of the Constitution provides for 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).
185. 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, §§ 122 and 123).
186. 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).
187. It may be necessary to impose a restriction, during the investigation phase, on access to certain evidence for the purposes of protecting fundamental rights of the third parties, maintaining public interest or securing the methods applied by the judicial authorities in conducting investigation. Therefore, it cannot be said that imposing a restriction on the counsel’s power to examine the file in order for the sound conduct of the investigation stage is not necessary for the public order of a democratic society. However, such a restriction on access to the investigation file must be proportionate to the aim sought to be attained and must not hinder the sufficient exercise of the right to defence (see the Court’s judgment, E.2014/195 K. 2015/116, 23 December 2015, § 107).
188. 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).
189. 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).
190. On 7 September 2016, the Diyarbakır Chief Public Prosecutor’s Office filed a request with the Diyarbakır 4th Magistrate Judge to obtain an order imposing a restriction on the powers of the applicant’s lawyer to examine the file and take a copy of the documents on the ground that “it may imperil the aim of the investigation” by virtue of Article 153 § 2 of the Code no. 5271. On 9 September 2016, the magistrate judge issued a “restriction” order in line with this request. The applicant was detained on remand on 4 November 2016, subsequent to the restriction order.
191. There is no document or information as to whether the restriction order was subsequently lifted. However, it appears that by 2 February 2016 when the indictment was accepted by the 8th Chamber of the Diyarbakır Assize Court, the impugned restriction had automatically expired pursuant to Article 153 § 4 of the Code no. 5271.
192. The accusations brought against the applicant are related to his acts specified in the investigation reports issued by the relevant chief public prosecutor’s offices prior to the constitutional amendment concerning the parliamentary immunity. There is no finding or claim that the applicant or his lawyers had been denied access, prior to the restriction order, to these investigation reports and contents of the investigation files attached thereto. Besides, during his statement-taking process before the Diyarbakır Chief Public Prosecutor’s Office, the applicant noted that he had comprehended the offences imputed to him but refused to give statement as the investigation had political motives.
193. It appears from the letter requesting the applicant’s detention, which was issued by the Diyarbakır Chief Public Prosecutor’s Office on 4 November 2016, that a comprehensive explanation as to the accusations brought against the applicant is provided. In this respect, certain information and evidence concerning the imputed acts are laid down therein, and assessments concerning the legal qualification of these acts are also made. This letter was read out to the applicant also by the Diyarbakır 2nd Magistrate Judge before his interrogation. It is also indicated in the interrogation report that the imputed acts were read out and explained to him. During his interrogation, the applicant did not give information about the imputed acts and refused to answer the questions that were put to him. On the other hand, his lawyers who were present in the interrogation had the opportunity to present comprehensive defence submissions about the merits of the accusations. 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 ten-page petition whereby his detention was challenged, detailed defence submissions as to the procedural and substantive aspects are 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.
194. Accordingly, regard being had to the scope of judicial review conducted at the initial stage of the applicant’s detention on the basis of a suspicion of his guilt, nature of the evidence underlying the detention as well as to the facts that the applicant or his lawyer were informed of the basic elements forming a basis for the accusations and that the applicant was provided with the opportunity to challenge them, it has been concluded that the alleged denial of access to the investigation file merely on account of the restriction order imposed is manifestly ill-founded.
195. For these reasons, this part of the application was declared inadmissible for being manifestly ill-founded as it is clear that there was no violation of the applicant’s alleged denial of access to the investigation file due to the restriction order imposed.
B. Alleged Violation of the Freedom of Expression and the Rights to Be Elected and Engage in Political Activities
1. The Applicant’s Allegations and the Ministry’s Observations
196. The applicant maintained that all of the imputed acts forming a basis for the investigation and his detention were the speeches that he had delivered, in his capacity as an MP and chairman of a political party, during meetings, press releases and conferences at various dates; and that he was precluded from exercising his right to engage in legislative activities for being detained on remand. He accordingly alleged that there had been a breach of his freedom of expression as well as his rights to stand for election and to engage in political activities, which are safeguarded respectively by Articles 19, 26 and 67 of the Constitution as well as by Articles 5 and 10 of the Convention and Article 3 of the Protocol No. 1 of the Convention.
197. 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 and right to engage in political activities fell essentially under the scope of his alleged detention in the absence of any strong suspicion of his guilt. The Ministry accordingly noted that this complaint must be examined under Article 5 § 1 (c) of the Convention. It also emphasized that given the applicant’s position as an MP having an influence over a certain section of society supporting him as well as his continuous performance of the imputed acts forming a basis for his detention, the detention measure was necessary for, and proportionate to the requirements of, protecting the society, maintaining public order and preventing violence in a democratic society.
198. In his counter-statements against the Ministry’s observations, the applicant asserted that the speeches underlying his detention had been mainly delivered under the GNAT as a part of his legislative activities; that these statements had been reiterated in the platforms he attended as a leader of the opposition party and in representation of his voters; and that he could not take part in the legislative activities for being detained on remand, which was also in breach of his own voters’ right to free election.
2. The Court’s Assessment
199. In examining the effects of detention measure upon the fundamental rights and freedoms such as the freedoms of expression and the press, the freedom of association as well as the rights to stand for election and engage in political activities, the Court firstly assesses whether the detention is lawful and/or whether it has exceeded a reasonable time. The Court then ascertains whether there has been a violation of any other fundamental rights and freedoms by also taking into account its conclusion as to the lawfulness of detention and reasonableness of the detention period (see Erdem Gül and Can Dündar, §§ 92-100; Hidayet Karaca, §§ 111-117; Mehmet Baransu, §§ 157-164; Günay Dağ and Others, § 191-203; Mehmet Haberal, §§ 105-116; Mustafa Ali Balbay, §§ 120-134; Kemal Aktaş and Selma Irmak, §§ 61-75; Faysal Sarıyıldız, §§ 61-75; İbrahim Ayhan, §§ 60-74; and Gülser Yıldırım, §§ 60-74).
200. In the present case, as regards the alleged unlawfulness of the applicant’s detention, it has been concluded that there was convincing evidence giving rise to suspicion that the applicant might have committed an offence; and that there were also grounds requiring his detention which was proportionate. Regard being had to the assessments made in this regard, there is no circumstance which would compel the Court to reach a different conclusion in respect of the allegation that the applicant had been under investigation and subsequently detained on remand merely on account of his acts falling within the scope of the freedom of expression as well as the rights to stand for election and to engage in political parties.
201. Consequently, the Court declared this part of the application inadmissible for being manifestly ill-founded as there is no violation of the alleged violations of the applicant’s freedom of expression and rights to stand for election and to engage in political activities due to his detention.
VI. JUDGMENT
For these reasons, the Constitutional Court held on 21 December 2017:
A. 1. UNANIMOUSLY that the alleged violation of the right to personal liberty and security due to the unlawfulness of the applicant’s arrest and custody be DECLARED INADMISSIBLE for non-exhaustion of available remedies;
2. By MAJORITY and by dissenting opinion of Mr. Engin Yıldırım that the alleged violation of the right to personal liberty and security due to the unlawfulness of the applicant’s detention be DECLARED INADMISSIBLE for being manifestly ill-founded;
3. UNANIMOUSLY that the alleged violation of the right to personal liberty and security due to the restricted access to the investigation file be DECLARED INADMISSIBLE for being manifestly ill-founded;
4. By MAJORITY and by dissenting opinion of Mr. Engin Yıldırım that the alleged violations of the freedom of expression as well as the rights to stand for election and to engage in political activities due to the applicant’s detention be DECLARED INADMISSIBLE for being manifestly ill-founded;
B. The court expenses be COVERED by the applicant.
DISSENTING OPINION OF JUSTICE ENGİN YILDIRIM
1. The applicant, who is still the Member of Parliament for İstanbul, was taken into custody on 4 November 2016 and subsequently detained on remand by virtue of the detention order of the same date, which was issued by the Diyarbakır 2nd Magistrate Judge for his alleged membership of an armed terrorist organization and public incitement to commit offence. In the detention order, it is primarily indicated that there was strong suspicion of the applicant’s guilt, which is a pre-requisite for detention, and as regards the existence of grounds for detention, it is noted “regard being had to the lower and upper limits of punishment prescribed in the relevant law for the imputed offence as well as the facts that the imputed offence is among the catalogue offences laid down in Article 100 § 3 of the Code of Criminal Procedure and that detention measure is proportionate and necessary compared to the punishment likely to be imposed, it has been considered that the measure of conditional bail would remain insufficient”.
2. Article 19 § 1 of the Constitution sets forth “Everyone has the right to personal liberty and security”. It is also laid down in Article 19 § 3 “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”.
3. In Article 13 of the Constitution, it is set forth “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”.
4. In the same vein, Article 5 § 1 of the European Convention on Human Rights (“the Convention”) safeguards that everyone has the right to liberty and security of person and that no one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law. In subparagraph (c) of the same provision, the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so is listed as an exemption from the right to personal liberty and security.
5. Pursuant to Article 19 § 3 of the Constitution, the first general condition of detention is the existence of strong indication of criminal guilt on the part of the accused. However, strong indication is not per se sufficient for detention but constitutes the first step needed to be assessed for finding criminal guilt. At the subsequent stage, it must be examined, in the light of the concrete evidence, whether there is a risk of fleeing, destroying or altering the evidence on the part of the accused or the suspect or any other risk specified in the relevant provision. An abstract risk of fleeing is not sufficient for detention. The question as to whether the risk of fleeing is to the extent that would require detention must be ascertained on the basis of the particular circumstances of the relevant case and characteristics of the accused or the suspect. The fact that objective conditions are appropriate for fleeing must not always give rise to the acknowledgement that there exists a risk of fleeing. It must be also inquired whether the accused or the suspect has tendency to do so.
6. An interference with the right to personal liberty and security would be in 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 (see Halas Aslan, no. 2014/4994, 16 February 2017, §§ 53-54). The phrase “necessitating detention” set out in Article 19 § 3 of the Constitution indicates that one of the conditions sought for detention is proportionality.
7. The Diyarbakır 2nd Magistrate Judge, ordering the applicant’s detention, concluded that there was strong suspicion of criminal guilt on the part of the applicant in terms of the alleged membership of the armed terrorist organization, namely PKK, and public incitement to violence, making a reference to the “6-7 October events”, the “ditch events”, the applicant’s certain speeches and activities under the Democratic Society Congress.
8. It is beyond any doubt that a call was made through HDP’s social media account, on its Central Executive Committee’s behalf, to incite people to pour out into the streets and join the resistance; and that the applicant was at that time the co-chairman of the party and a member of the Central Executive Committee. In his capacity as the co-chairman and a member of the Central Executive Committee, the applicant admitted having partaken in that call. It cannot be said that certain expressions of the applicant during the meetings, press statements and conferences attended by him in his political capacity as well as certain expressions used in the call made by the Central Executive Committee of his political party were not inciting to violence or tending to be perceived as a call for uprising and insurrection. For these reasons, regard being had to the acts performed by the applicant, it cannot be concluded that there is no strong indication of guilt.
9. In its recent judgment, the European Court of Human Rights (“the ECHR”) held that under Article 5 § 1 (c) of the Convention, a person may be detained on remand, solely within the scope of criminal proceedings, for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence; however, relevant and sufficient reasons must be also given to demonstrate the existence of reasons justifying detention (see Buzadji v. Moldova [GC], no. 23755/07, 5 July 2016).
10. The criterion of relevant and sufficient reasons requires that in addition to concrete evidence proving the existence of reasonable or strong suspicion of guilt which has given rise to the detention of the suspect, facts demonstrating the risk of fleeing and insufficiency of the conditional bail measure for the prevention of such risks must be concretely demonstrated in the initial detention order (see Buzadji v. Moldova [GC], no. 23755/07, 5 July 2016, §§ 92 and 102). Accordingly, in the first initial detention order, not only the severity of the offence and the relevant punishment are taken into account or merely the fact that the offence necessitating detention is a catalogue offence is deemed sufficient for detention, but also there must be relevant and sufficient reasons justifying detention.
11. Leaders of political parties are expected to act cautiously and prudently as speeches delivered during a critical period and in a region where terrorist events are taking place for a long time may be differently perceived by certain sections of the society. However, lack of political cautious and prudence does not justify a disproportionate interference with the right to personal liberty and security, which is among the most fundamental constitutional rights.
12. Existence of strong indication of having committed an offence does not suffice for detention of a person to be deprived of his liberty, and the principle of proportionality must be also satisfied. As a requisite of the principle of proportionality, if it is possible to attain the same aim through an alternative measure which involves less severe interference with the fundamental rights and freedoms, such measure must be resorted to, and any measure which is more severe must not be applied. If the aim expected to be attained through the preventive measure of detention may be attained also through one of the conditional bail measures, the detention measure must be no longer resorted to as it would lead to unfairness. Otherwise, any preventive measure that is more severe than what is required would constitute a penalty rather than a measure. Accordingly, resorting to a more severe measure in cases where it is possible to attain the expected aim through a less severe one would be contrary to the principle of proportionality.
13. In the present case, the incumbent court found the detention measure necessary and proportionate on the grounds that the offence imputed to the applicant was among the catalogue offences and that conditional bail would remain insufficient given the lower and upper limits of the penalty likely to be imposed. The applicant, a Member of Parliament, is the co-chairman of the third largest political party represented in the GNAT. Even if the speeches delivered by the applicant in his capacity as a politician as well as other allegations raised against him in the relevant investigation reports are accepted to have constituted a strong indication of guilt, the applicant’s detention does not, given his position and titles, meet a pressing social need in a democratic society. Regard being had to the presumption of innocence as well, detention may be regarded as a justified measure only when there is a real public interest overriding the right to personal liberty and security safeguarded by Article 19 of the Constitution. The applicant’s detention on account of the nature of the imputed offences and severity of the prescribed sanctions pursued no public interest.
14. Detention measure must be applied only in very exceptional circumstances and as a last resort, and less restrictive alternatives must be primarily taken into consideration. In the present case, in ordering his detention, no justified grounds were provided as to which concrete facts had caused doubt into the risk of his fleeing or hiding himself, which conducts and behaviours of the applicant had caused doubt into the risk of his tampering with the evidence as well as why the conditional bail would remain insufficient.
15. The grounds for the applicant’s detention, which are specified in his detention order, have two basis: the severity of the penalty prescribed in the relevant law for the imputed offence and the applicant’s refusal to be present at the chief public prosecutor’s offices for giving his statements. Deeming the severity of the relevant penalty, by itself, sufficient for the existence of the risk of fleeing would give rise to a very narrow and strict interpretation of the right to personal liberty and security. It is not possible to agree with the conclusion that the applicant’s refusal to give statement constituted a risk of his fleeing. This is because he continued his political activities before public and did not make any attempt to flee after he had refused to give statement.
16. The dates when the applicant’s parliamentary immunity was lifted and when he was arrested and detained on remand are 20 May 2016 and 4 November 2016 respectively. It has been observed that during this period of nearly six months, he continued performing his political and parliamentary activities and never attempted to flee. The constitutional amendment lifting his parliamentary immunity took effect on 8 June 2016. As proven by his passport entries, he had travelled abroad and returned to the country tens of times from this date to 4 November 2016 when his detention was ordered. The risk of his fleeing and tampering with the evidence does not per se constitute a ground.
17. It is necessary to make a further assessment with reference to a number of other relevant factors which may either confirm the existence of a danger of fleeing or make it appear so slight that it cannot justify detention pending trial. The risk of fleeing has to be assessed in light of the factors relating to the person’s character, his morals, home, occupation, assets, family ties, his reaction against the detention order, the issue whether he indeed plans to flee to another country as well as all kinds of links with the country he plans to flee (see Becciev v. Moldova, no. 9190/03, 4 January 2006, § 58).
18. Pointing out the difficulty in conducting an investigation into terrorist offences, the majority of the Court emphasized the necessity that the right to personal liberty and security should not be interpreted in a way that would make it extremely difficult, for judicial authorities and security forces, to effectively combat with crimes and criminality. I agree with this finding as a principle; however, in the present case, it was not concretely demonstrated how and why resorting to an alternative measure imposing a lesser restriction on the right to personal liberty and security would make extremely difficult the struggle against crimes and criminality.
19. In one of its judgment, the ECHR found a violation of Article 5 § 3 of the Convention, considering that the relevant courts had not taken into account the possibility of granting conditional bail and had not mentioned why those alternative measures would not have warranted his presence before the court or why, had the applicant been released, his trial would not have followed its proper course (see Jablonski v. Poland, no. 33492/96, 21 December 2000).
20. Severity of the penalty prescribed for the imputed offences should not per se form a basis for the risk of fleeing. As a matter of fact, the ECHR considers that such a danger cannot be gauged solely on the basis of the severity of the penalty to be imposed. It must be assessed with reference to a number of other relevant factors which may either confirm the existence of a danger of fleeing or make it appear so slight that it cannot justify detention pending trial (see Letellier v. France, no. 12369/86, 26 June 1991, § 43).
21. The applicant is a Member of Parliament and also co-chairman of a political party (HDP). In his capacity as the co-chair, he is entitled to represent the party as indicated in Article 15 § 3 of the Law no. 2820 on Political Parties. HDP is the fourth biggest political party based on the number of votes it received during the general election of 1 November 2015, that is 5.148.085, and the third biggest political party based on its number of members of parliament.
22. The right to engage in political activities, which is not an unlimited and absolute right, does not mean that persons who have taken part in activities involving criminal suspicion can in no way be detained or tried. A Member of Parliament or a (co-) chairperson of a political party in respect of whom there is strong indication of guilt may be, of course, detained on remand after his parliamentary immunity is lifted duly; however, his detention must be based on concrete factual basis whereby the risk of fleeing as well as the other risks laid down in Article 19 § 3 of the Constitution are taken into consideration. Any detention which lacks such a basis and falls foul of the principle of proportionality would cause a deterrent effect on political activities and thereby cause a damage to the order and progress of the democratic society.
23. The applicant’s detention undoubtedly hindered his right to take part in legislative activities for being precluded from engaging in political activities. In the same vein, it may be said that detention of the applicant, co-chairman of a political party having received over five million votes, -in the absence of any risk of fleeing, tampering with or concealing evidence but merely on the grounds that the offences imputed to him are among the catalogue offences and he refused to be present at the chief public prosecutor’s offices for giving statement- would also have an unfavourable impact on the relevant voters’ participation in a democratic life.
24. Consequently, I disagree with the conclusion reached by the majority of the Court, considering that taken in conjunction with Article 13 of the Constitution, the applicant’s right to personal liberty and security safeguarded by Article 19 of the Constitution as well as his rights to elect, to stand for election and to engage in political activities safeguarded by Article 67 thereof were violated.
