Events
The applicants, one of whom is an academic and one a teacher, were dismissed from public service with the State of Emergency Decree after the coup attempt of 15 July. The applicants, who staged a sit-in for their reinstatement, then started a hunger strike. Within the scope of the investigation initiated by the Office of the Chief Public Prosecutor, the applicants were taken into custody on 14/3/2017 and then released with a judicial control measure. At the end of the investigation, a civil lawsuit was filed demanding that the applicants be punished for the crimes of being a member of a terrorist organization and making propaganda for the terrorist organization. The High Criminal Court (Court) decided to accept the indictment and the prosecution phase started.
On the other hand, within the scope of another investigation carried out by the Office of the Chief Public Prosecutor, the applicants were taken into custody on 23/5/2017 after a search was made in their residence. The Criminal Judgeship of Peace decided to arrest the applicants for the crimes of being a member of a terrorist organization and violating the Law No. 2911. A new public lawsuit has been filed against the applicants. The court decided to join the two cases. At the end of the hearing held on 20/10/2017, the court decided to release the applicant Semih Özakça. The Court, which also heard some witnesses during the trial, acquitted Semih Özakça, one of the applicants, at the end of the trial; Nuriye Gülmen was sentenced to 6 years and 3 months in prison and her release along with the sentence. An appeal was made against the decision. The case is pending at the Court of Cassation as of the date of examination of the individual application.
allegations
The applicants allege that their right to personal liberty and security was violated because they were caught and detained based on evidence that could be the subject of the same accusation within the scope of another investigation, although they complied with the judicial control measure within the scope of an ongoing investigation.
Court’s Evaluation
In the concrete case, two separate investigations were conducted against the applicants. It is understood that the applicants were arrested and detained within the scope of a new investigation initiated before the indictment prepared within the scope of the first investigation was accepted, and they were arrested on charges of being a member of a terrorist organization and violating the Law No. 2911. On the other hand, the indictment issued at the end of the first investigation on the same date was also accepted. The court decided to join the cases, which it stated that there was a legal connection between them, together with the probate examination.
In the concrete case; The applicants’ shouting slogans identified with the terrorist organization during the protests, their actions being owned by the organizations that are stated to be affiliated with the organization on the websites and social media that support the organization, the calls for support to the protests, the sharing of the messages of the said organizations affiliated with the terrorist organization and the intensity of these actions are the facts that the witnesses -the applicants acted on the instructions of the terrorist organization. were evaluated together with their detailed statements. In this context, it is not arbitrary and unfounded that the issues mentioned by the investigating authorities are strong indications that the applicants have committed a crime related to a terrorist organization in the context of the lawfulness of their detention.
On the other hand, the applicants claimed that the accusations brought against them within the scope of the detention, which was the subject of the application, were the subject of a lawsuit filed before, and that a new investigation was launched against them due to the same actions and it was unlawful to apply a detention measure.
The accusation brought against the applicants in both investigations and the subject of their arrest is that the applicants are members of a terrorist organization. In this context, when the second indictment issued by the Chief Public Prosecutor’s Office is examined, it is seen that the actions of the applicants after the first indictment was issued are subject to accusation. In this respect, the grounds of both accusations are different. Considering the aforementioned facts and the aforementioned jurisprudence of the Court of Cassation, it is not arbitrary and unfounded that a new accusation is brought against the applicants.
While deciding to arrest the applicants by the peace judgeships, it was based on the nature of the crime of being a member of a terrorist organization alleged to have committed, the severity of the sanction stipulated in the law, the suspicion of blackening the evidence and fleeing, being among the catalog crimes, and the inadequacy of judicial control measures. For this reason, the reasons for the applicants’ detention, which led to the blackening of the evidence and the suspicion of escaping, have factual grounds.
It cannot be said that it is arbitrary and baseless for the peace judgeships to conclude that the detention measure applied to the applicants is proportional and that the judicial control application will be insufficient, taking into account the gravity of the sanction envisaged for the alleged crime, the nature and importance of the work.
The Constitutional Court decided that the right to liberty and security of person was not violated for the reasons explained.