Press Release No: Individual Application 12/16
22.03.2016

PRESS RELEASE CONCERNING THE DECISION OF METİN ÖZÇELİK VE MUSTAFA BAŞER WITHIN THE SCOPE OF THE FREEDOM AND SECURITY OF PERSON

On 20/1/2016, the First Section of the Constitutional Court held with regard to the individual application lodged by Metin Özçelik and Mustafa Başer (application no. 2015/7908) that the applications be declared inadmissible for being manifestly ill-founded and non-exhaustion of remedies.

The Facts

At the date of incident, one of the applicants, Metin Özçelik, was the judge of the 29th Chamber of the İstanbul Criminal Court of General Jurisdiction while the other applicant, Mustafa Başer, was the judge of 32nd Chamber of the İstanbul Criminal Court of General Jurisdiction.

Within the scope of certain investigations conducted by the İstanbul Chief Public Prosecutor’s Office, the defence counsels of all suspects who were detained on remand and were security officers except for one who was a journalist submitted petitions on 20/4/2015 to the 29th Chamber of the İstanbul Criminal Court of General Jurisdiction and requested the challenge of all judges of the İstanbul Magistrate Judge’s Office and release of all suspects.

The applicant, Metin Özçelik, accepted the request for challenge of all judges of the İstanbul Magistrate Judge’s Office by the decision of the 29th Chamber of the İstanbul Criminal Court of General Jurisdiction dated 24/4/2015 and assigned the applicant, Mustafa Başer, to conclude the request for the release of the suspects.

The applicant, Mustafa Başer, ordered the release of all suspects by the decision of the 32nd Chamber of the İstanbul Criminal Court of General Jurisdiction dated 25/4/2015.

Within the scope of the investigation conducted against the applicants, the applicants were detained on remand for the offences of “attempting to overthrow the Government of the Republic of Turkey or preventing it from performing its duties partially or wholly and being a member of an armed terrorist organization” by the decisions of the 2nd Chamber of the Bakırköy Assize Court dated 30/4/2015 and 1/5/2015.

The Applicants’ Allegations

The applicants maintained that on account of certain explanations made and publications, there had been a breach of the presumption of innocence and their right to honour and reputation; that their rights to privacy of private life and their freedom of religion and conscience had been violated as their religious feelings and thoughts had been questioned by means of being associated with a certain religious group; and that their rights to freedom and security of person had been violated as they had been detained on remand, on account of the decisions rendered by them as a judge, by a non-competent court which was established in breach of the principle of natural judge and which was not impartial and independent, without existence of strong suspicion of crime and the ground for detention; and that their rights to freedom and security of person had been violated as they could not effectively enjoy their right to objection.

The Court’s Assessment

With respect to presumption of innocence

According to the Constitutional Court, the presumption of innocence guarantees that a person would not be acknowledged to be guilty without the existence of a final judicial decision indicating that that person has committed the offence. Although the presumption of innocence ensures protection for a person in order not to be declared guilty by the public authorities until his guilty is found established by a court decision, it does not prevent the authorities from informing the public of a criminal investigation which is being conducted. However, as the presumption of innocence is also applicable at this stage, due attention and diligence must be paid while releasing information to the public.    

In the present incident, it has been concluded that in the press release of the İstanbul Chief Public Prosecutor’s Office dated 26/4/2015, the applicants were not associated with any offence or any incriminating statement to be in breach of the presumption of innocence in respect of the applicants was not used.

It has been therefore held that this part of the application be declared inadmissible for being manifestly ill-founded.

With respect to the decision on detention

According to the Constitutional Court, persons in respect of whom there is strong indication that they are guilty may be detained on remand upon a decision rendered by a judge with a view to preventing them from fleeing, destroying or tampering with evidence or in other circumstances like the above-mentioned ones and necessitating detention and prescribed by law. In this respect, detention of a person primarily depends on the strong indication that he has committed an offence. This is a sine qua non element sought for the measure of detention. It is therefore required that the accusation must be supported with plausible evidence likely to be deemed as strong. The nature of facts and information likely to be accepted as plausible evidence largely depends on the particular circumstances of the present incident.   

In this respect, it is not necessarily required that there is sufficient evidence collected at the time of arrest and detention for accusing a person because the aim of detention is to substantiate or eliminate the suspicions forming a basis for the detention and  to handle the judicial process in a much reliable manner. Accordingly, the facts forming a basis for the suspects to constitute a basis for the accusation must not be assessed 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.

In the present incident, in the reasoning of the decision on detention of the applicants, CD examination report, the decisions of the 29th and 32nd Chambers of the Criminal Court of General Jurisdiction and the 10th Office of the Magistrate Judge, the letters of the registry of the court, the shift charts, the investigation documents and the witness statements were relied on with respect to the strong suspicion of crime while the ground for detention were noted as the facts that the imputed offences are among the offences listed in Article 100 § 3 of the Code of Criminal Procedure no. 5271 and “likely to be deemed as a ground for detention” by virtue of the Code; that the evidence had not been collected yet; that there was possibility that they would apply pressure on the witnesses and obfuscate the evidence; that there was risk of fleeing and the measure of judicial bail would remain insufficient.

In the judicial review with respect to the first detention, an examination limited to the question as to whether there are plausible grounds indicating that the person has committed an offence and to the lawfulness of the deprivation of liberty in this connection is made. In this scope, existence of indications that an offence might have been committed may be sufficient at the outset of the detention. Given the grounds of the decisions on detention at this stage of the investigation and the accusation against the applicants in the present incident, it has been concluded that it must be acknowledged that there were suspicion of crime and the grounds for detention.  

It has been therefore held that this part of the application be declared inadmissible for being manifestly ill-founded.

With respect to the effective use of the right to objection

According to the Constitutional Court, a person arrested must be informed of the basic factual and legal grounds of his arrest in a non-technical and understandable manner, and thereby that person must be provided with the opportunity to recourse to a judicial authority with a view to challenging to the lawfulness of his arrest if deemed necessary. 

It has been observed in the letters requesting the applicants’ detention on remand and the decisions on their detention rendered by the court that the applicants were not exposed to any accusation concerning the investigations conducted by the security officers whose challenge of judge and requests for release had been accepted by the applicants; and that any question concerning these investigation files was not directed to them in their questionings. It has been also concluded that non-delivery of one copy of the above-mentioned investigation files to the applicants is not an obstacle for the effective enjoyment of the right to objection.

It has been therefore held that this part of the application be declared inadmissible for being manifestly ill-founded.

With respect to other complaints

It has been concluded that, with respect to the applicants’ allegations that there had been a breach of their rights to honour and reputation on account of a news report published in a national newspaper, the applicants lodged the individual application without exhausting the ordinary remedies; that the allegations that there had been a breach of the private life and the freedom of religion and conscience as they had been associated with a certain religious group and their religious feelings and thoughts had been questioned could not be substantiated; that with respect to the allegation that they had been detained by a non-competent court which was established in breach of the principle of natural judge and which was not independent and impartial, it is obvious that there is no breach. Accordingly, these parts of the application have been decided to be declared inadmissible.    

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

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