REPUBLIC OF TURKEY

CONSTITUTIONAL COURT

SECOND SECTION

JUDGMENT

AYHAN BİLGEN

(Application no. 2017/5974)

21 DECEMBER 2017

THE FACTS

[9-62] The applicant is currently a member of the Parliament. He was elected from the Kars district as the candidate of the HDP on 7 June 2015 and 1 November 2015.

An investigation was conducted against the applicant by the Ankara Chief Public Prosecutor’s Office for certain offences allegedly committed by him when he was an MP, and two 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 in 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, they were sent to the Ankara Chief Public Prosecutor’s Office for necessary action. Afterwards, the investigation files were referred to the Diyarbakır Chief Public Prosecutor’s Office (“the Prosecutor’s Office”) for lack of jurisdiction.

On 29 January 2017, the applicant was taken into custody and subsequently taken to the Prosecutor’s Office. On the same date the Prosecutor’s Office referred the applicant to the Diyarbakır 4th Magistrate Judge’s Office with a request for his detention. The applicant was charged with the call made on behalf of the Central Executive Board –he is a member of this board– through the social media account of the HDP within the scope of “the 6-7 October events”. The Judge’s Office dismissed the request for the applicant’s detention on the ground that “there was no evidence indicating that the applicant had been involved in posting the tweet nor did he give instruction in this respect, therefore it would not be proportionate to detain him in at this stage”.

The Prosecutor’s Office contested the decision of the Judge’s Office. On 30 January 2017 the Diyarbakır 5th Magistrate Judge’s Office accepted the claim of the Prosecutor’s Office and held that an arrest warrant would be issued against the applicant.

On 31 January 2017, the applicant appeared before the Diyarbakır 5th Magistrate Judge’s Office where his detention was ordered for his alleged membership of an armed terrorist organization.

On 8 February 2017, the Prosecutor’s Office indicted the applicant for the offences of membership of an armed terrorist organization, inciting to commit an offence and contravening the Law on Meetings and Demonstrations.

On 8 September 2017, the 5th Chamber of the Diyarbakır Assize Court released the applicant.

The case against the applicant was pending before the first instance court as of the date when the individual application lodged by him was examined by the Constitutional Court.

V. EXAMINATION AND GROUNDS

63. The Constitutional Court, at its session of 21 December 2017, examined the application and decided as follows:

A. Alleged Denial of Access to the Investigation File  

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

64. The applicant maintained that he had not been well-informed of the charges against him during his custody and detention processes; that his request to examine the investigation file had been denied on the basis of the restriction order imposed; that the restricted order issued long after the date when the impugned offences had been allegedly committed -just before his being taken into custody- did not involve any explanation as to how the investigation would be imperilled; and that he could not be aware of the charges against him and the evidence for which he was deprived of the opportunity to make his self-defence on account of the restriction order. According to him, such conduct of the investigation authorities had not complied with the principles of “equality of arms” and “adversarial proceedings” in that this situation had placed him at a disadvantage vis-à-vis the investigation authorities. The applicant accordingly alleged that he had been deprived of the opportunity to effectively challenge his detention and that his right to defence had been restricted, which gave rise to violations of his rights to personal liberty and security as well as to a fair trial.  

65. In its observations, the Ministry primarily indicated that the applicant failed to have recourse to the compensation remedy set forth in Article 141 of the Code of Criminal Procedures no. 5271 (“Code no. 5271”), which afforded the persons -who have not been informed of the charges against them- the right to claim compensation. The Ministry further noted that the applicant should have challenged the restriction order by the date when he had been aware of it; however, he did not do so. Besides, it was emphasized that the applicant was informed of the charges against him during his statement-taking process and that the detention order clearly set out the grounds necessitating his detention, which led to the conclusion that the applicant had been indeed aware of the charges.

66. The Ministry finally indicated, with reference to the petition whereby the applicant challenged his detention, that the latter had indeed had the opportunity to refute the allegations.

2. The Court’s Assessment

67. Article 19 § 8 of the Constitution titled “Personal liberty and security” provides for 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”.

68. The Constitutional Court is not bound by the legal qualification of the facts by the applicants and it makes such assessment itself (see Tahir Canan, no. 2012/969, 18 September 2013, § 16). In this respect, the Court found it appropriate to examine the applicant’s complaints under this heading within the scope of the right to personal liberty and security enshrined in Article 19 § 8 of the Constitution.  

a. General Principles

69. 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).

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

71. 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 to 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).

72. 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).

73. 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).

74. If the applicant is asked, during the process when his statement or defence submissions are taken,  questions about the content of documents access of 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 [Plenary], no. 2015/144, 14 July 2015, § 107).

b. Application of Principles to the Present Case

75. On 27 January 2017, the Diyarbakır 3^rd Magistrate Judge imposed restriction on the lawyer’s right to examine the investigation file and to take copies of the documents included therein for the risk of “imperilling the investigation” on the part of the applicant, relying on Article 153 § 2 of Code no. 5271.  

76. There is no information or document indicating as to whether the restriction order was subsequently lifted. However, it appears that the restriction was automatically discontinued by virtue of Article 153 § 4 of Code no. 5271 by 17 February 2017 when the indictment was accepted by the 5^th Chamber of the Diyarbakır Assize Court.

77. The charges against the applicant concern the acts that were specified in the investigation reports issued by the Ankara Chief Public Prosecutor’s Office before the introduction of the constitutional amendment on the parliamentary immunity. There is no finding or allegation that the applicant or his lawyers had no access to the investigation reports and investigation files attached thereto prior to the restriction order.

78. Besides, it has been observed that during his questioning by the Diyarbakır Chief Public Prosecutor’s Office, the applicant was provided with certain explanations and asked questions about the acts imputed to him. The questions put to him comprehensively contain information and evidence as to the imputed acts. During his questioning, the applicant did not make any explanation as to the charges against him, but his lawyers presented their defence submissions. Besides, the Diyarbakır Chief Public Prosecutor’s Office’s letter whereby the applicant’s detention was requested as well as the Diyarbakır 4^th Magistrate Judge’s letter whereby his challenge to his detention was dismissed embodied detailed information and assessments as to the imputed acts. Moreover, it has been observed that during his statement-taking process before the Diyarbakır 5^th Magistrate Judge, the applicant was provided with an explanation as to the imputed acts, and he exhaustively presented his defence submissions as to the substantive aspect of the impugned incidents. In ordering the applicant’s detention, the Diyarbakır 5^th Magistrate Judge also made assessments as to the imputed acts. Finally, it appears that in his petition whereby he challenged his detention, the applicant submitted detailed defence arguments by also mentioning material facts concerning the charges. It has been accordingly concluded that both the applicant and his lawyers had access to the information forming a basis for the charges and his detention.

79. In this respect, regard being had to the fact that basic elements underlying the charges against him as well as information which is essential for the assessment of the lawfulness of his detention were informed to the applicant or his lawyers and that the applicant was provided with the opportunity to submit his counter-statements and objections thereto, it cannot be said that the applicant could not effectively challenge his detention due to the short-term restriction order imposed during the investigation.

80. For these reasons, the Court found the allegation that the applicant could not effectively challenge his detention due to the restriction order inadmissible for being manifestly ill-founded as there was no manifest violation in this respect. 

B. Alleged Unlawfulness of Detention

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

81. The applicant maintained that he had been unlawfully detained on remand in spite of enjoying parliamentary immunity; that there was no strong suspicion of guilt or no concrete evidence of having committed an offence in the present case; that the investigation authorities failed to investigate whether he had attended the meeting of the Central Executive Committee held at the material time or whether it had been decided at the relevant meeting that a call would be made for committing an offence. He accordingly alleged that his right to personal liberty and security had been violated.

82. Stating that as required by Article 38 § 5 of the Constitution, no one shall be compelled to make a statement that would incriminate himself or to present such incriminating evidence, the applicant considered that his detention for not having made, during his questioning and statement-taking processes, any self-incriminating statement in respect of the impugned explanation posted via twitter was in breach of this safeguard.

83. He also asserted that the decisions whereby his detention was ordered and dismissing his challenge to detention lacked any grounds.

84. Besides, the applicant, underlying that there was no special arrangement which allowed the public prosecutor to challenge the decision on his release -by way of conditional bail-, also maintained that although it was therefore impossible for the prosecutor’s office to challenge the said decision, his detention had been ordered on the challenge to an unappealable decision (by the prosecutor’s office); and that his detention order was therefore unlawful.

85. He finally asserted that he was detained on remand in order not to prevent offences but to prevent him from engaging in political activities as an MP of the People’s Democratic Party (HDP) as well as to silence the opposing party.

86. In its observations, the Ministry referring to the similar decisions of the Constitutional Court and the European Court of Human Rights (the ECHR) on detention indicated that at the time of his detention, there was convincing evidence showing that the applicant might have committed an offence given the grounds specified in his detention order, the acts imputed to him in the indictment and the existing evidence.

87. Notably making reference to the “6-7 October Events”, the Ministry stated that showing these events as a ground for strong suspicion in the detention order did not constitute an arbitrariness in the assessment of the evidence.

88. According to the Ministry, which emphasized that the acts imputed to the applicant had been individualized in the detention order and the indictment, the applicant’s allegation that he was detained in the absence of any convincing grounds for suspecting that he had committed an offence was unfounded.

89. The Ministry accordingly considered that the applicant’s complaints as to the unlawfulness of detention was manifestly ill-founded.

2. The Court’s Assessment

90. 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.”

91. 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.”

92. The applicant’s allegations under this section must be examined within the scope of the right to personal liberty and security under Article 19 § 3 of the Constitution.

a. Admissibility

93. The allegations under this heading must be declared admissible for not being manifestly ill-founded and there being no other grounds to declare them inadmissible.

b. Merits

i. General Principles

94. 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, the freedom of a person may be restricted only in cases where one of the circumstances specified in this article exists (see Murat Narman, no. 2012/1137, 2 July 2013, § 42).

95. 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).

96. 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 amounting to 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).

97. 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).

98. Accordingly, 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, no. 2012/1272, 4 December 2013 § 72).

99. 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 is 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).

100. In cases where serious allegations indicate, or circumstances of the present case reveal, that the acts imputed to suspect or accused fall within the ambit of fundamental rights and freedoms that are sine qua non for a democratic society such as the freedom of expression, the freedom of the press, the right to trade-union freedom and the right to engage in political activities, judicial authorities ordering detention must act with more diligence in determining the strong suspicion of guilt. The question as to whether the duty of diligence has been fulfilled is subject to the Court’s review (see Gülser Yıldırım (2), § 116, and for a violation judgment rendered at the end of such review, see Erdem Gül and Can Dündar [Plenary], no. 2015/18567, 25 February 2016, §§ 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).

101. 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).

102. 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 in this respect 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, no. 2012/239, 2 July 2013, § 46; and Halas Aslan, § 59). However, in case of an initial detention, it may be 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).

103. 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).

104. 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 is 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 that 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).

105. One of the factors to be taken into consideration is 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; and Gülser Yıldırım, § 121).

106. 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; and Gülser Yıldırım (2), § 122).

107. In every concrete case, it falls in the first place upon the judicial authorities deciding detention cases to determine whether the prerequisites for detention, i.e., the strong indication of guilt and other grounds exist, and whether the detention is a proportionate measure. As a matter of fact, those authorities which have direct access to the parties and evidence are in a better position than the Constitutional Court in making such determinations (see Gülser Yıldırım (2), § 123).

108. 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; Selçuk Özdemir, § 76; and Gülser Yıldırım (2), § 124). As a matter of fact, it is set out in Article 101 § 2 of Code no. 5271 that in detention orders, evidence indicating strong suspicion of guilt, existence of grounds for detention and the proportionality of 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

109.  In the present case, it must be primarily ascertained whether the applicant’s detention had a legal basis. His detention was ordered, due to the same act specified in two separate investigation reports, pursuant to Article 100 of Code no. 5271, for his alleged membership of an armed terrorist organization, namely the PKK.

110. The applicant also complained that he had been detained on remand in spite of enjoying parliamentary immunity.

111. 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”.

112. However, by Provisional Article 20 added to the Constitution by Article 1 of Law no. 6718, it is set forth that motions concerning the lifting of 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.

113. 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 of the parliamentary immunity”. The Court concluded that it was not a resolution as regards the lifting of 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).

114. Regard being had to the Constitutional Court’s abovementioned 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 files at certain stages. As a matter of fact, the applicant raised no allegation that the offences imputed to him fell outside this exemption. 

115. As a matter of fact, in ordering the applicant’s detention, the Diyarbakır 5^th Magistrate’s Judge considered that “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”.

116. Therefore, it cannot be said under the specific circumstances of the present case that the applicant’s detention cannot be ordered for enjoying parliamentary immunity. Accordingly, the detention measure applied in respect of him had a legal basis (see, in the same way, Gülser Yıldırım (2), § 132).

117. Before proceeding with an assessment as to whether the detention measure revealed to have a legal basis had a legitimate aim and was proportionate, it must be determined whether there was strong indication of having committed an offence, which was the prerequisite of the detention.

118. Having regard to the calls made on behalf of the Central Executive Board through the social media account of the HDP within the scope of “the 6-7 October events” and the applicant’s being a member of the Central Executive Board, the Diyarbakır 5^th Magistrate Judge’s Office ordering the applicant’s detention concluded that there was strong criminal suspicion on the part of the applicant for the alleged membership of an armed terrorist organization, the PKK.

119. In its judgment in the case of Gülser Yıldırım (2), the Constitutional Court stated that the investigation authorities had 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 calls made by the PKK, as well as between the calls and the violent acts in question. In reaching this conclusion, the Court also draw attention to the fact that the applicant had not argued that the call had been made beyond her will; on the contrary, she had made statements that were in support of the call in question (see Gülser Yıldırım (2), §§ 136-139).

120. There is no doubt that a call was made on behalf of the Central Executive Board through the social media account of the HDP by provoking people to pour out into streets and clash with the security forces and that the applicant was a member of the HDP’s Central Executive Board. Although the investigation authorities considered that there was discrepancy, in his defence submissions, as to whether he had indeed attended the HDP’s Central Executive Board meeting, the applicant argued at all stages that he had had no will in the impugned call. He also consistently stated that no such decision for making a call had been taken at the meetings he had attended.

121. The investigation authorities have reached no factual finding as to the fact that the applicant was present at the meeting of the Central Executive Board when it was allegedly decided that the call in question would be made; that the applicant made statements in support of this call; and that therefore the call was made within his will. As a matter of fact, the Diyarbakır 4^th Magistrate Judge’s Office dismissing the initial request for the applicant’s detention also relied on the similar grounds in its detention order of 29 January 2017. Nor did the piece of news forming a basis for the investigation authorities’ assessment to the contrary include any expression that the applicant had been present at the HDP’s Central Executive Board meeting when a call was decided to be made.

122. Accordingly, in view of the available documents, it has been concluded that the investigation authorities failed to demonstrate “a strong indication of guilt” in the present case.

123. In the presence of such a conclusion reached by the Court, no separate examination is required for the applicant’s other allegations as to whether the grounds for detention were present, whether the detention order issued against him was proportionate and whether his detention was unlawful.

124. Finally, in view of the detention process and the documents at its hand, the Court has considered that the applicant’s complaint of being detained on remand beyond any objectives specified in the Constitution but with a political motive was not sufficiently founded.

125.  For the reasons explained above, the Court has found that the applicant’s right to personal liberty and security under Article 19 § 3 of the Constitution was violated.

126. In addition, stating that due to his detention, he was restrained from taking part in legislative activities -which was directly related to his right to stand for election- and he was unable to carry out political activities, the applicant alleged, referring to certain precedent judgments of the Court, that his right to stand for election in conjunction with his right to personal liberty and security had also been violated. As regards the applicant’s main complaint, the Court found that his right to personal liberty and security had been violated. Therefore, in view of the circumstances of the present case, no separate examination was deemed necessary as to the alleged violation of the applicant’s right to stand for election.

C. Application of Article 50 of Code no. 6216

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

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

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

128. The applicant claimed 100,000 Turkish Liras (TRY) for non-pecuniary damage.

129. In the present case, it was held that there had been a violation of Article 19 § 3 of the Constitution due to unlawfulness of the applicant’s detention. As a result of the proceedings, the applicant’s release was ordered on 8 September 2017, and he was released on the very same day. Therefore, his detention was discontinued. It has been therefore concluded that there is no other step required to be taken for the redress of the consequences of the violation other than awarding compensation.

130. On account of the interference with the applicant’s right to personal liberty and security, he was awarded a net amount of TRY 20,000 for his non-pecuniary damage which could not be redressed by merely finding a violation.

131. The total court expense of TRY 2,257.50 including the court fee of TRY 257.50 and the counsel fee of TRY 1.800, which is calculated over the documents in the case file, must be reimbursed to the applicant.

VI. JUDGMENT

For these reasons, the Constitutional Court UNANIMOUSLY held on 21 December 2017 that

A. 1. 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;

2. The alleged violation of the right to personal liberty and security due to unlawfulness of detention be DECLARED ADMISSIBLE;

B. The right to personal liberty and security safeguarded by Article 19 § 3 of the Constitution was VIOLATED;

C. A net amount of TRY 20,000 be PAID to the applicant as non-pecuniary compensation, and other claims for compensation be DISMISSED;

D. The total court expense of TRY 2,057.50 including the court fee of TRY 257,50 and the counsel fee of TRY 1,800 be REIMBURSED TO THE APPLICANT;

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

F. A copy of the judgment be SENT to the 5^th Chamber of the Diyarbakır Assize Court (E. 2017/658);

G. A copy of the judgment be SENT to the Ministry of Justice.