26/6/2020

Press Release No: Individual Application 36/20

Press Release concerning the Judgment Finding a Violation of the Right to Personal Liberty and Security due to Unreasonable Length of Detention

The Facts

The applicant, who was a member of parliament (“MP”) at the time when he was detained on remand, was also the co-chairperson of the Peoples’ Democratic Party (“the HDP”).

Following the joinder of several investigations, launched against him due to his acts of different dates -in respect of which 31 police investigation reports were issued-, by the incumbent chief public prosecutor’s office, the applicant was detained on remand for his alleged membership of a terrorist organization and having publicly incited to commit an offence.   

He subsequently lodged an individual application with the Constitutional Court (“the Court”) due to the alleged unlawfulness of his detention. Deciding on his case on 21 December 2017, the Court found the applicant’s detention lawful.

Thereafter, the applicant lodged an application with the European Court of Human Rights (“the ECHR”) and raised the same allegation. The Second Section of the ECHR, delivering its judgment on 20 November 2018, found the applicant’s detention lawful but concluded that the length of his detention exceeded reasonable time, which amounted to violations of the right to personal liberty and security, the right to free elections as well as of the prohibition that the rights and freedoms cannot be restricted for any purpose other than those prescribed under the European Convention on Human Rights (“the Convention). The application is still pending before the Grand Chamber of the ECHR.

In its judgment, the ECHR dismissed the Government’s objection that the applicant had failed to use the remedy of an individual application before the Constitutional Court as the latter gave its judgment on the applicant’s case on 21 December 2017. As regards the alleged violations of Article 5 § 3 of the Convention due to unreasonable length of the applicant’s detention as well as of Article 3 of the Protocol no. 1 to the Convention in conjunction therewith, the ECHR noted that the individual application whereby these complaints were raised was still pending before the Court. It also clearly indicated that the Constitutional Court had not dealt with the alleged excessive length of the applicant’s detention in its judgment of 21 December 2017 as this complaint had not been raised in the application form. However, the ECHR examined the said allegation on the merits by assuming that the complaint -which the Court had not examined yet- was examined.

The applicant also stood in the presidential election held on 24 June 2018 and became the third candidate running for the presidential seat.

In the criminal proceedings conducted against the applicant, the incumbent assize court ordered his release at the hearing of 2 September 2019. However, he was not released who was convicted of another offence at the time of the decision ordering his release. The proceedings against the applicant had been pending before the relevant first instance court by the examination date of his individual application.

Subsequently, the applicant’s detention was ordered anew on 20 September 2019 within the scope of another investigation conducted by the Ankara Chief Public Prosecutor’s Office.

The Applicant’s Allegations

The applicant maintained that his right to personal liberty and security had been violated due to unreasonable length of his detention.

The Court’s Assessment

The applicant was detained on remand for 2 years, 1 month and 3 days on account of a criminal charge imputed to him. The question whether the length of pre-trial detention during a criminal investigation or prosecution has exceeded a reasonable time may be elucidated primarily through the reasoning indicated in the decision on detention. In the reasoning of such decisions, the existence of strong indication of criminal guilt –a pre-condition for detention–, the reasons of detention and the proportionality of this measure must be demonstrated. 

In its examination as to the alleged unlawfulness of the applicant’s detention, the Court concluded that there were strong indications of his guilt. In this sense, the Court especially referred to the calls made on behalf of the HDP’s Central Executive Board concurrently with the those made by the PKK terrorist organization, to the violent acts taking place in many areas of the country (“the 6-7 October events”), to the applicant’s expressions concerning the PKK terrorist organization, its acts and attacks as well as its leader, which were included in his speeches delivered on different dates including the period during which the violent acts caused by the PKK and the attempts to invade certain settlements (“the ditch events”) took place, as well as to the findings that the applicant acted in line with the instructions of the PKK terrorist organization. Accordingly, given the content and scope of the evidence in the investigation/prosecution files on which the incumbent magistrate judges and assize courts relied in ordering the applicant’s continued detention, it has been considered that these decisions were relevant and sufficient insofar as it concerned the existence of strong indication of criminal guilt, the pre-condition for detention.  

On the other hand, the decisions ordering continued detention are to be examined also in respect of the reasons of detention and the proportionality.

In its several judgments, the Court has previously dealt with the alleged excessive length of pre-trial detentions of the applicants, who are an MP. In this regard, the Court has set the principles to be taken into consideration by the relevant courts ordering continued detention of the MPs. Accordingly, not only the restriction caused by detention measure on the right to personal liberty and security safeguarded by Article 19 of the Constitution, but also the effects of detention, if continued for a long period of time, on the right to elect, to stand for election and to engage in political activities safeguarded by Article 67 of the Constitution are to be considered.

In this regard, in ordering the continued detention of an MP, the courts must demonstrate, with concrete facts, the existence of an interest that outweighs the interest involved in the exercise of the right to personal liberty and security and the right to elect, to stand for election and to engage in political activities. As a result thereof, in the course of the examination as to the alleged excessive length of detention, it must be also discussed whether the claims raised by the applicant in his/her capacity as an MP were duly assessed in the decisions on his/her continued detention. Accordingly, the courts deciding on detention must not ignore the applicability of available measures alternative to detention. They must also, in ordering continued detention, consider the personal situation of the person requesting release along with the general context of the case and in this sense individualise the reasons of detention in every case.

Besides, as previously expressed by the Court, the fact that the person whose detention has been ordered is an MP does not automatically render the detention measure disproportionate. It should be noted that it is possible to order continued detention of an MP provided that the grounds necessitating continued detention during an investigation or prosecution are demonstrated. In this regard, the courts, in rendering decisions on detention, must demonstrate the public interest justifying the continued detention despite its effects on the right to personal liberty and security as well as the right to stand for elections and to engage in political activities, as well as how the continued detention outweighs the relevant rights. In this sense, the reasons indicated in these decisions must address, to a reasonable extent, the allegations and requests of every person concerned. In other words, the reasons included in the decisions ordering continued detention must cover not only the objective aspects of the case but also specific considerations related to the position of a detained MP, that is to say, the reasons must be individualised.

However, regard being had to the decisions ordering the applicant’s continued detention in the present case, the incumbent magistrate judges and assize courts failed to make an assessment as to the applicant’s allegations that the continuation of his detention was unreasonable due to his capacities as an MP, co-chairperson of a political party and a presidential candidate and also imposed an excessive restriction on his right to stand for elections and to engage in political activities. It has been accordingly observed that the applicant’s requests for his release and challenges against his detention, which he raised during the proceedings on the basis of the above-cited considerations, were dismissed based on stereotyped reasoning. In this sense, it has been concluded that the decisions ordering the applicant’s continued detention lacked relevant and sufficient reasoning.

For these reasons, the Court has found a violation of the right to personal liberty and security safeguarded by Article 19 of the Constitution.