Press Release No: Individual Application 19/17
20.07.2017

PRESS RELEASE CONCERNING THE INADMISSABILITY DECISION BASED ON CONSTITUTIONAL AND PERSONAL SIGNIFICANCE

On 25 May 2017, the Plenary of the Constitutional Court found the individual application of Devran Duran (2014/10405) inadmissible for being devoid of constitutional and personal significance.

The Facts

On 21 November 2011 around 10.30 p.m. O.A., the Commander of the Nusaybin Central Gendarmerie Station, and R.Ü., a civilian official employed by the Mardin Regional Department of the National Intelligence Organization (“the MIT”), were killed after being shot with automatic weapons from a vehicle, while they were moving towards the city centre by a car. Within the scope of the investigation conducted by the Nusaybin Chief Public Prosecutor’s Office, Nusaybin Magistrates’ Court issued an arrest warrant against the applicant on the ground that “he could not be reached and there was a risk of fleeing and tampering with evidence on the part of him. The applicant was taken into custody on 30 November 2011. The Nusaybin Magistrates’ Court ordered the applicant’s detention on remand on 2 December 2011 for intentional homicide, intentional injury, use of stolen goods and committing crime on behalf of an organization.

As the incident was a terrorist act, the investigation file of the applicant was sent to the Diyarbakır Chief Public Prosecutor’s Office. Thereupon, a criminal case was initiated against the applicant before the Assize Court in the same judicial district by the indictment issued by the Diyarbakır Chief Public Prosecutor’s Office on 10 October 2012 for the applicant’s punishment for deliberately killing two persons (twice), disrupting the unity and integrity of the State, purchasing, carrying or possessing weapons or bullets which are considerable in terms both of quality and quantity and causing damage to property. In the bill of indictment, it was also stated that according to the news published on 23 November 2011 on a website operating on behalf of the PKK/KCK terrorist organization, the incident was claimed by this organization and that during the search conducted in the applicant’s house, some evidence pointing to his connection with the PKK (6 DVDs and 1 memory card) were seized. The Prosecutor’s Office relied on such evidence as the incident scene investigation reports, the statements of anonymous witness, the identification reports, the expert reports, the examination reports and records, the HTS reports pertaining to the cell phone call details and the defence submissions of the suspects. The proceedings were carried out while the applicant was detained on remand.

By Article 1 of Law no. 6526 dated 21 February 2014, the assize courts which were authorized by former Article 10 of the Anti-Terror Law no. 3713 dated 12 April 1991 were abolished. Therefore, the 8th Chamber of the Diyarbakır Assize Court rendered a decision of non-jurisdiction on 7 March 2014 and sent the case file to the 1st Chamber of the Mardin Assize Court.

On 15 May 2014, a hearing was held before the 1st Chamber of the Mardin Assize Court. The applicant attended the hearing through the Voice and Video Informatics System (“the SEGBİS”) from the İzmir T-type Closed Penitentiary Institution no. 4 where he was detained on remand, and he requested to be released. The applicant’s lawyer, who was present at the hearing, also requested the applicant’s release. The court dismissed their request and ordered the continuation of the applicant’s detention on remand.

The applicant appealed against the decision on 16 May 2014. On the same day the 1st Chamber of the Mardin Assize Court sent the file to the 2nd Chamber of the Mardin Assize Court as the appellate authority. The latter requested the written opinion of the Public Prosecutor. The Prosecutor submitted to the court his written opinion for dismissal of the applicant’s appeal. On 23 May 2014, in accordance with the prosecutor’s opinion, the 2nd Chamber of the Mardin Assize Court dismissed the applicant’s appeal without holding a hearing and with no further right of appeal.

The judgment of the court was served on the applicant on 26 May 2014. On 24 June 2014, the applicant lodged the individual application no. 2014/10405.

In the subsequent process, a hearing was held on 6 August 2015, where the applicant’s request to be released was dismissed. The applicant appealed against the decision on 10 August 2015. The 1st Chamber of the Mardin Assize Court sent the file to the Midyat Assize Court as the appellate authority. The latter dismissed the applicant’s appeal with no further right of appeal.

The judgment was served on the applicant on 14 September 2015. On 1 October 2015, the applicant lodged the individual application no. 2015/16156

At the hearing of 10 November 2016, the Public Prosecutor expressed his opinion as to the merits of the case verbally and requested the applicant’s punishment for all charges against him.

On 25 November 2016, noting that the detention measure could be applied for the maximum period of five years for the cases under the jurisdiction of the assize courts and that there remained a short time for the expiration of the five-year period in respect of the applicant, the court ordered the applicant’s release. The applicant was released on the same day.

The application was still pending before the first instance court on the date of examination of the individual application.

The Applicant’s Allegations

The applicant maintained; that he was charged by the investigation authorities relying on insufficient evidence; that there was no concrete fact indicating that he committed the imputed offence; that there was no strong indication of guilt; and that upon learning that the police officers had come his home to take his statement, he went to the police station willingly, however he was detained although there was no risk of tampering with evidence on the part of him. In addition, the applicant argued that the continuation of his detention on remand was ordered on fixed grounds and the reasons for considering the conditional bail as an insufficient measure were not explained. For these reasons, the applicant claimed that his right to personal liberty and security safeguarded by Article 19 of the Constitution was violated.  The applicant alleged that as his appeal against the detention order within the scope of the application no. 2014/10405 was examined without holding a hearing, Article 5 § 4 of the Constitution was also violated. Lastly, the applicant alleged that although the courts reviewing his appeals received the Public Prosecutor’s written opinions, they dismissed his appeals without communicating these opinions to him.

The Constitutional Court’s Assessment

In brief, the Constitutional Court made the following assessments:

A. Alleged unlawfulness of detention:

Considering that an arrest warrant was issued against the applicant four days after the armed attack in question and he was detained two days after being taken into custody, there is no reason to conclude that the detention of the applicant was not proportionate/necessary in terms of the investigation process. As it is clear that there is no violation as to the alleged unlawfulness of the applicant’s detention, this part of the application has been declared inadmissible for being manifestly ill-founded.

B. Allegation that the applicant’s detention exceeded the reasonable time

As the applicant lodged an individual application concerning the allegation under this heading without exhausting judicial remedies, this part of the application must be declared inadmissible for non-exhaustion of judicial remedies.

C. Allegation that the applicant’s appeal against the detention order was examined without holding a hearing

In a criminal procedure system that allows appeal of all detention orders ex officio or upon request before another court, examination of an appeal eight days later without holding a hearing cannot be said to have violated the principles of equality of arms and adversarial proceedings. As it is clear that there is no violation in this respect, this part of the application has been declared inadmissible for being manifestly ill-founded.

D. Allegation that the opinions of the Public Prosecutor that were received during the examination of the appeals against detention were not communicated to the applicant

a. Judgment of the Midyat Assize Court

The applicant alleged that the Public Prosecutor’s opinion was received during the examination of his appeal against the decision on the continuation of his detention dated 6 August 2015 but he was not informed of the relevant opinion. However, the applicant failed to submit supporting evidence for his allegation, therefore this part of the application has been declared inadmissible for being manifestly ill-founded.

b. Judgment of the 2nd Chamber of the Mardin Assize Court

It has been concluded that the application concerning the alleged violations of the principles of equality of arms and adversarial proceedings due to non-communication of the Public Prosecutor’s opinion to the suspect/accused or his representative –which constitutes a common and clear case-law of the Constitutional Court– did not point to a general issue. It also could not be demonstrated that it was important in terms of application and interpretation of the Constitution or determination of the scope and limits of the fundamental rights.

In addition, regard being had to the fact that the applicant did not make any explanation as to the substantial damage he sustained due to non-communication of the Public Prosecutor’s opinion and as to the importance of this opinion for him, it has been concluded that there was no substantial damage on the part of the applicant in this sense.

For the reasons explained above, it has been concluded that this part of the application was neither of significance in terms of the interpretation and application of the Constitution nor of personal significance because the applicant did not sustain a substantial damage. As a matter of fact, in one of its recent judgments (see İbrahim Kızılkaya, no. 2014/2517, 5 April 2017), the Constitutional Court declared inadmissible, on the similar grounds, an application concerning the alleged violation of the principles of equality of arms and adversarial proceedings due to non-communication of the notification letter of the Chief Public Prosecutor to the applicant (the accused) during the appellate review, where the decision on the applicant’s imprisonment was upheld.

In conclusion, the Constitutional Court declared this part of the application inadmissible for lack of constitutional and personal significance, without further examination under other admissibility criteria.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.

The Constitutional Court of the Republic of Turkey © 2015
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