Events
In line with the investigations carried out against the Fetullah Terrorist Organisation/Parallel State Structure (FETÖ/PDY) throughout Turkey and the testimonies received by the judicial authorities, information has been obtained that persons who are in a higher position in the hierarchy of the organisation call persons who are in the military intimate structure of the organisation and who are in a lower position in the organisation from fixed lines with payphones/contactors in accordance with predetermined precautionary rules in order to ensure intra-organisational communication. Upon this, the Chief Public Prosecutor’s Office initiated an investigation to identify the members of the organisation’s military intimate structure. The Chief Public Prosecutor’s Office concluded that the applicant committed the imputed offence by taking part in the organisation’s military intimate structure in line with the findings of the investigation that he was called 24 times consecutively and 46 times individually, the assessments that these calls were made by the military intimate officer of the organisation and the statements of H.S.
In the criminal case, the court of first instance convicted the applicant on the charge of being a member of an armed terrorist organisation; the regional court of appeal against the conviction was rejected on the merits. The Court of Cassation upheld the judgement.
Allegations
The applicant claimed that his right to a fair trial was violated due to the unlawful acquisition of the records relating to the detection of communication made through telecommunication.
The Court’s Assessment
A. In terms of the Data Obtained as a Result of the Detection of Communication with Payphone/Contoured Landlines (Phones)
In the concrete case, the conclusion reached by the judicial authorities that the applicant was a member of the FETÖ/PDY’s military intimate structure is based primarily on the HTS records of the payphone/fixed lines and the analyses and evaluations made by the law enforcement units on these records.
Many decisions of the Court of Cassation have evaluated the legal nature of the judicial proceedings carried out by the judicial authorities against the FETÖ/PDY’s military intimate structure similar to the concrete case and the legal nature of the HTS records obtained upon the decision to detect communication via telecommunication taken regarding the payphone/fixed lines in this process. In the aforementioned decisions, upon the investigations conducted by the investigation authorities based on the authority granted by Article 160 of the Law No. 5721, it has been evaluated that upon the determination that FETÖ/PDY members use fixed lines or payphone lines installed in public markets, kiosks, etc. and used for a fee in order to continue organisational meetings with special methods, it is possible to examine the HTS records by taking communication detection decisions for these lines in accordance with Article 135 of the same Law. On the other hand, it has been concluded that it is also lawful to reach the persons who may be suspects of the offence in line with the analyses made after eliminating the persons who are not related to the offence under investigation. As a result, the Court of Cassation has evaluated in many judgements that the method of obtaining HTS records -as evidence- of fixed lines with payphones/contacts is in accordance with the law. Therefore, in the concrete case, it has been assessed that obtaining HTS records from the Information and Communication Technologies and Communications Authority (BTK) regarding the communication made with payphone/controller landlines in line with the judge’s decision and conducting technical analyses on these records by the law enforcement units in order to identify persons who may be suspects is not a practice involving an obvious error of discretion or a clear arbitrariness.
For the reasons explained above, the Constitutional Court decided that the right to a fair trial within the scope of the right to a fair trial was not violated.
B. Regarding the Data Obtained as a Result of the Detection of Communication Regarding the GSM Line Belonging to the Applicant
Upon the request of the Chief Public Prosecutor’s Office, after the HTS records of the applicant’s GSM line were obtained by the judgeship, all records were examined by law enforcement officers and a report entitled HTS Data Examination and Evaluation Report was prepared. In line with the findings in the aforementioned report and the statements of other persons against whom an investigation was carried out with the allegation that they were involved in the same organisation, the fact that the applicant was contacted by the person who is considered to be the imam in charge of the organisation’s military intimate structure by calling the applicant consecutively and singularly -two of them using the encryption method- through fixed lines with ankesör/contour phones was accepted as the decisive evidence of the conviction. The applicant stated that the HTS records of his GSM line were also accessed from the content of the HTS records obtained from the HTS records of the fixed lines with payphones/controllers, even though he was not a suspect in this investigation at the time the investigation into the organisation’s military intimate structure was initiated and there was no judicial decision issued against him. At this point, since the HTS data belonging to the GSM line used by the applicant was also accessed as a result of the analysis of the HTS data belonging to the fixed lines with payphones/contactors by the law enforcement units, an evaluation should also be made in terms of the process of obtaining the HTS records of this line in line with the judicial decision issued upon the request of the Attorney General’s Office for the detection of the communication established from the GSM line belonging to the applicant.
The Court of Cassation has emphasised that law enforcement units should prepare personalised and detailed reports on HTS records in order to reveal the nature of the searches and to reveal the material truth. In this context, at the stage when the applicant was included in the investigation as a suspect, it was understood that obtaining the HTS records of the applicant in accordance with the decision of the judge in order to obtain the said report was among the duties of the chief public prosecutor’s office stipulated in Article 160 of the Law No. 5271, and in the concrete case, this process was carried out in accordance with Article 135 of the same Law. Therefore, it has been observed that the determinations and assessments made by the Court of Cassation and the courts of first instance in terms of the use of the data obtained in accordance with this protection measure as evidence do not contain an obvious error of discretion and a clear arbitrariness. On the other hand, the judicial authorities have made the necessary investigations, examinations and assessments regarding the authenticity or reliability of the HTS data delivered. These data submitted to the judicial authorities have been analysed and interpreted by technical units. The defence side also had the opportunity to challenge the authenticity of the evidence that the applicant was part of the FETÖ/PDY’s military intimate structure by communicating with the applicant through fixed lines with payphones/contactors, in accordance with the principles of equality of arms and adversarial proceedings.
In the light of this information, it was assessed that there was no violation in terms of the allegations that the use of HTS data obtained from the GSM line used by the applicant in accordance with the decisions on the detection of communications established through telecommunications as evidence was obtained without a legal basis or unlawfully.
For the reasons explained, the Constitutional Court decided that the right to a fair trial within the scope of the right to a fair trial was not violated.