Events
The applicant was detained and arrested on the allegation that he participated in an illegal demonstration march called by an armed terrorist organisation. In the public case against the applicant, the 2nd Assize Court ruled for the release of the applicant with a ban on leaving the country and a judicial control measure of not leaving the residence. At the end of the trial, the court acquitted the applicant for membership of a terrorist organisation and other offences, sentenced him for terrorist organisation propaganda due to his social media posts and deferred the announcement of the verdict. Upon the finalisation of the acquittal verdict, the applicant filed a lawsuit for pecuniary and non-pecuniary damages. The 6th Assize Court ordered the applicant to pay 6,330.76 TL pecuniary compensation, 12,000 TL non-pecuniary compensation and 2,199.69 TL attorney’s fee. The applicant appealed, stating that the compensation and attorney’s fee were low and that compensation should also be awarded for the judicial control measure. The Regional Court of Appeal corrected the non-pecuniary damages to 4.000 TL and the attorney’s fee to 1.240 TL and decided definitively to reject the appeal on the merits.
Allegations
The applicant claimed that his rights to a fair trial, personal liberty and security and property rights were violated due to the insufficiency of the compensation paid for the detention and arrest measures, the non-acceptance of the compensation claim within the scope of the judicial control measure, and the reduction of the attorney fee with the regulation.
The Court’s Assessment
In the concrete case, it is necessary to determine whether the secret witness statement contains concrete facts. The allegation that the applicant participated in the demonstration, which took place upon the calls of an armed terrorist organisation and in which acts of violence took place, was based on the statement of a secret witness. The secret witness was shown the images taken during the said action and the secret witness identified the applicant from these images. It is clear that this identification contains a concrete fact. Considering the finding that the applicant shared photos of illegal protests on his social media account, it is seen that there is a strong indication that an offence has been committed. However, it is necessary to assess whether the judicial control measure applied to the applicant has a legitimate purpose.
According to the third paragraph of Article 19 of the Constitution, an arrest warrant may be issued in order to prevent flight or destruction or alteration of evidence. The judicial control measure of not leaving the residence -due to its nature as an alternative to arrest- can only be imposed for these purposes stipulated in the Constitution. The aforementioned measure is a judicial measure specifically aimed at preventing the escape of suspects or defendants. According to paragraph (1) of Article 109 of the Code of Criminal Procedure No. 5271, in case of the existence of reasons for arrest, it may be decided to place the person under judicial control instead of arrest. Therefore, in the presence of reasons for arrest and only in cases where arrest would not be proportionate, judicial control measure may be applied. In this context, while there is a difference between arrest and judicial control in terms of proportionality, there is no difference in terms of legitimate purpose.
However, the reasons for arrest are regulated in Article 100 of the Law No. 5271. Accordingly, the existence of strong suspicion that the suspect or defendant is fleeing, hiding or there are concrete facts that arouse the suspicion that the suspect or defendant will flee, the suspect or defendant destroying, concealing or altering evidence, attempting to pressure witnesses, victims or others are the reasons for arrest. The aforementioned legitimate purposes of arrest are also valid in terms of judicial control. In this context, in terms of the judicial control measure, it is necessary to evaluate whether the aim of preventing escape or destruction or alteration of evidence, or pressure on witnesses, victims or others has been demonstrated in the concrete case.
In the concrete case, the court of first instance clearly stated that there was no suspicion of flight while deciding to place the applicant under judicial control. It did not make any assessment in terms of the aims of preventing the destruction or alteration of evidence, or pressure on witnesses, victims or others. However, in the concrete case, the evidence was collected at the end of the investigation. Therefore, the applicant has no suspicion of tampering with the evidence. Moreover, since there is a secret witness in the case, it is not possible for the applicant to put pressure on the witness. The gravity of the penalty stipulated in the law for the alleged offence and the fact that the alleged offence is one of the offences for which a reason for arrest can be assumed by law may justify the applicant to be subjected to this measure at the beginning. However, it has been assessed that this measure cannot be justified at a later stage of the proceedings and it has been concluded that the judicial control measure does not have a legitimate purpose.
In addition, since it is concluded that the applicant was subjected to a procedure contrary to the principles set out in the third paragraph of Article 19 of the Constitution due to the unlawful judicial control measure, the ninth paragraph of Article 19 of the Constitution can be applied in the concrete case. However, judicial control is not listed among the protection measures for which compensation can be claimed in Articles 141 and following of the Law No. 5271. The court of first instance did not make any assessment regarding the applicant’s request for judicial control measure in the compensation case filed by the applicant, and the court of appeal stated that the judicial control measure cannot be included in the compensation calculation. The Court of Cassation also ruled that the compensation claim arising from the judicial control measure of not leaving the residence should be rejected. Therefore, it is concluded that there is no effective compensation for the judicial control measure of not leaving the residence.
For the reasons explained above, the Constitutional Court decided that the right to personal liberty and security was violated.
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