Press Release No: Individual Application 21/17
01.08.2017

PRESS RELEASE CONCERNING THE INDIVIDUAL APPLICATION RELATING TO DETENTION OF A JUDGE WITHIN THE SCOPE OF JULY 15 COUP ATTEMPT INVESTIGATION

On July 26, 2017, the Plenary of the Constitutional Court declared the individual application lodged by Selçuk Özdemir (no. 2016/49158) inadmissible for being manifestly ill-founded.

The Facts

Prior to the July 15 coup attempt, the applicant was serving as a Judge in the 3rd Chamber of the Bursa Administrative Court.

Following the coup attempt of 15 July 2016, the Ankara Chief Public Prosecutor’s Office, considering that the applicant had been caught in an act as a result of which a heavy sentence would be imposed, launched an investigation against him for the allegation that he was involved in the hierarchical structure of the FETÖ/PDY (the Fetullahist Terrorist Organization / Parallel State Structure).

On 10 August 2016, the applicant was suspended from office by the Second Chamber of the High Council of Judges and Prosecutors (HCJP).

Upon the request of the Ankara Chief Public Prosecutor’s Office, on 11 August 2016 the Bursa Chief Public Prosecutor’s Office issued a search warrant on the applicant’s house, office and car. The applicant was taken into custody on the same day.

Upon the detention order of the Bursa 4th Magistrate Judge’s Office, dated 12 August 2016, the applicant was detained on remand for his alleged membership of an armed terrorist organization. On 16 August 2016, the Bursa 5th Magistrate Judge’s Office dismissed the applicant’s request for review of the detention order.  On 30 May 2017, the Istanbul Chief Public Prosecutor’s Office indicted the applicant for the offence of membership of an armed terrorist organization.

The case has been pending as of the date when this application was examined, and the applicant is still detained on remand.

On 31 July 2016, the Plenary of the HCJP dismissed the applicant from office due to his relation and connection with the FETÖ/PDY. The Plenary dismissed the applicant’s request for review of dismissal on 29 November 2016.

The Applicant’s Allegations

The applicant maintained that his right to personal liberty and security safeguarded by Article 19 of the Constitution was violated on the ground that he had no connection with either the coup attempt or the military officers attempting the coup; that he had no links with the FETÖ/PDY; that he was detained despite the lack of evidence; that strong indication of guilt did not exist; that he continued office and did not escape although some judges and prosecutors were suspended from office or detained following the coup attempt; that there was no risk of fleeing on the part of him; and that his detention was not proportionate. In this scope, the applicant requested his release and sought compensation.

The Constitutional Court’s Assessment

In brief, the Constitutional Court made the following assessments:

According to Article 19 § 3 of the Constitution, 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. Accordingly, detention of a person only depends on “the presence of a strong indication of guilt.” For detention, an accusation should be supported with convincing evidence that can be regarded as strong. The nature of the facts and information which can be considered as convincing evidence is to a large extent based on the particular circumstances of a case.

For an initial detention, it may not always be possible to substantiate a strong indication of guilt with all relevant evidence.  Another purpose of detention is to advance the criminal investigation and/or case by means of verifying or refuting the suspicions about the relevant person. It follows that it is not absolutely necessary to require that all relevant evidence be collected in the course of apprehension. The evidence or information forming the basis for an investigation cannot be required to be at the same level with the evidence or information that will be presented and discussed in further criminal proceedings and that is required for conviction. 

Concerning the suspicion of guilt in the present case, it was noted in the detention order and in dismissal of the subsequent request for review that concrete evidence existed in the case file, and in those decisions referral was made particularly to the statements of suspects and to suspension of the applicant from office. In the bill of indictment against the applicant, it is noted that the applicant was a user of the “ByLock” mobile application, which is the digital platform through which the FETÖ/PDY members maintained secure communication among themselves.

In the judgment of Aydın Yavuz and Others (no. 2016/22169) dated 20 June 2016, the Plenary of the Constitutional Court has stated that, considering the features of the “ByLock” application established by the investigation authorities, its use or its instalment on electronic/mobile devices for use may be regarded as an indication for having a link with the FETÖ/PDY. Accordingly, the consideration of the use of “ByLock” application by the investigation and court authorities as a strong indication of guilt against the applicant who has been accused of membership of FETÖ/PDY cannot be regarded as unfounded or arbitrary. It also appears that some other suspects who were members of the judiciary and accused of being a member of the FETÖ/PDY said in their statements that the applicant, who was also serving as a judge, had a link with the FETÖ/PDY and was a member of this structure. The suspects, E.B. and E.Y. respectively stated “the applicant had been participating in the meetings (in which judges and prosecutors who were members of this structure and who took office in the same period convened) held at various regions of Turkey every year” and that “the applicant had required them to give a certain part of their salaries for the structure”. In this respect, it has been found established that there are strong indications regarding criminal suspicion on the part of the applicant.

On the other hand, it is requisite to determine whether the applicant’s detention on remand due to the existence of strong criminal suspicion is proportionate or not. The Constitutional Court’s review in this respect must be carried out on the basis of the detention process and the grounds thereof. It is not the Constitutional Court’s duty to make an assessment as to what the most appropriate measure or precaution would be in the pursuit of justice but to review the constitutionality of the impugned interference (the applicant’s detention in the present case). Accordingly, in determining whether the detention is proportionate or not, all characteristics of the concrete case including general circumstances prevailing at the time of detention must be taken into consideration.

The risk of fleeing in the course of or after the coup attempt by taking advantage of its aftermath or the risk of tampering with the evidence −on the part of the persons who involved in the coup attempt or who, in spite of not having involved in the coup attempt, have a link with the FETÖ/PDY − is much more present compared to offences committed in ordinary times. Moreover, the facts that the FETÖ/PDY infiltrated almost all public institutions and organizations in the country, that it has been operating in more than 150 countries, and that it has significant international alliances would facilitate, to a great extent, fleeing of FETÖ/PDY suspects and their sheltering abroad.

In the present case, the detention order was based on the fact that the imputed offence is among the offences “of which ground for detention may be presumed by virtue of the Law”. It has been also stated in the detention order that applying conditional bail would be insufficient, given the lower and upper limits of penalty prescribed in the Law with respect to the imputed offence and the gravity of the act performed by the applicant, and that, therefore, the detention measure is proportionate. In  dismissal of the applicant’s objection to detention, it has been stated that; evidence with respect to the imputed act has not been completely collected, examinations of evidence and digital data relating to the coup attempt obtained throughout the country have not been completed, the coup attempt has not been thoroughly uncovered, and that, therefore, at this stage of the case conditional bail would be insufficient against the risk of the applicant’s fleeing and/or tampering with the evidence.   

In this respect, having regard to the general conditions prevailing at the time when the applicant’s detention was ordered, the above-mentioned specific circumstances of the present case and the decisions on the applicant’s detention and on the dismissal of the subsequent request for review, it has been observed that the grounds for the applicant’s detention due to the risk of fleeing and tampering with the evidence, as well as for the existence of strong criminal suspicion, had factual basis.

For the above-mentioned reasons, the application has been declared inadmissible for being manifestly ill-founded.

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

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