Events
The applicant, who was investigated by the Prosecutor General’s Office (Prosecutor General’s Office) for his alleged involvement in the Fetullahist Terrorist Organization and/or the Parallel State Structure (FETÖ /PDY), was detained on 3/10/2017. Considering that the organization provides consistent information about the provincial structure and makes diagnoses, the applicant is required by the Prosecutor General’s Office 1. He has been referred to the Magistrate’s Office. 1. The Magistrate’s Office ruled on the application of the judicial control measure in the form of banning the applicant from going abroad.
2. As a result of the public lawsuit filed against the applicant The High Criminal Court (Court) decided that the applicant should be sentenced to 1 year, 8 months and 18 days in prison for being a member of an armed terrorist organization -with the application of effective provisions of remorse – and that the disclosure of this provision should be left undone (HAGB).
On the other hand, in the aftermath of the coup attempt FETO/PDY about being in the police intelligence unit, a new structure of accessing the information on the following methods used by technical and physical evidence collected in the investigation, based on the applicant on charges of being member of an armed terrorist organization to demand the arrest deputy office 2. He has been referred to the Magistrate’s Office . The applicant was arrested on 26/6/2020 for membership in an armed terrorist organization after an interrogation by the Judge’s Office. The applicant’s objection to the arrest decision is 1. It was flatly rejected by the Magistrate’s Office.
The Prosecutor General’s Office opened a public case against the applicant in the same local criminal court with the request that the applicant be punished for membership in an armed terrorist organization. At the end of the first hearing dated 11/6/2021, the Court decided that the applicant’s detention should continue.
Claims
The applicant claimed that his right to freedom and security of person was violated due to the fact that his re-arrest on the same charge was not legal and the detention exceeded a reasonable period after the court decided to release the disclosure of the verdict at the trial on the charge of being a member of a terrorist organization after the attempted coup.
Evaluation Of The Court
1. From the Point of View of the Claim that the Arrest Is Not Legal
The applicant was arrested on charges of being a member of an armed terrorist organization as part of an investigation conducted under the pretext of being a member of FETO/PDY, which is stated to be the organization behind the coup attempt.
Considering the indictment and other documents contained in the investigation file, it was seen that the investigation against the applicant was started as a result of obtaining information that FETÖ/PDY was in a new structure and that the applicant was back in this structure after the HAGB decision.
B. Who organizes the assistance provided by the investigating authorities to the members of the organization and/or their families using the code names of the applicant “Hacı, Hacı Mustafa”.A.it has been observed that informal employment in the workplace in order to hide it is considered a fact based on the accusation. The investigative authorities established this contact, in the new structure that the organization is trying to activate, the applicant’s B.A.depending on the audit and instructions of the organization, it is considered that it is included in the organizational hierarchy. As a matter of fact, the applicant, B.A. in this regard, on 11/3/2020, B.A.or he could not explain on reasonable grounds what was in the envelope he gave. The Prosecutor General’s Office issued the application on 15/6/2020 to I.Z. after a conversation with the named person İ.Z.ye B. Sending a text message from your mobile phoneA. nor is his assessment that he intended to prevent his contact from being deciphered unfounded.
On the other hand, the persons working as artisans and accused of being members of FETO/PDY made statements in their statements that the applicant had contact with FETO/PDY and that he continued to belong to this structure with his activities. As a matter of fact, the Attorney General’s Office is responsible for the physical follow-up conducted on different dates.A. A. Conducted an investigation of membership in the organization with respect toB., A.Y. and P.K.nin stated that it was found that they met frequently in a detached house and at the applicant’s workplace. I am from this people.Z. “the applicant knows that he has a connection with Greece, so his daughter, who is on the run in Greece for FETO/PDY membership, is in a fugitive position M.Z.ye that he asked her to help send money, that the applicant warned him not to talk about it on the phone”, P.F. if the applicant is “B.A.he stated that he distributed the money and supplies he received from Dan to the families of people who belonged to the organization and were not confessors and people who were on the run.” The witness statements in question contain information about the place, person and action; in this sense, it gives judicial authorities the opportunity to conduct an audit.
Accordingly, witnesses I.Z. and s.F.when the statements of the and the detection of communication and other facts obtained by technical follow-up are evaluated together, it is seen that the applicant has strong symptoms that confirm the existence of a suspicion of a crime in terms of a criminal charge related to the fact that he is operating in the new structure that FETO / PDY is trying to create and that are necessary for arrest within the scope of the file.
On the other hand, the applicant claims that his arrest on the same charge again is against the law, despite the fact that the decision of the HAGB was made as a result of the investigation /prosecution processes conducted for the same crime earlier.
According to the established case law of the Supreme Court, it is accepted that the crime of membership in a terrorist organization is one of the related crimes, and the theme will be interrupted by the capture of the person (actual theme) and the issuance of an indictment (legal theme), so the organizational actions performed after the arrest of the person and the issuance of an indictment may be the subject of a new charge. Accordingly, taking into account the aforementioned facts and the case law of the Supreme Court in question, it cannot be said that the filing of a new charge against the applicant is arbitrary and groundless.
Therefore, when the general circumstances at the time of the arrest decision and the specific circumstances of the concrete incident and the content of the decision made by the Judge are evaluated together, it can be said that there are factual bases of the reasons for the arrest, which are especially aimed at the suspicion of obscuring the evidence from the applicant’s point of view.
On the other hand, it should be noted that the investigation of terrorist crimes leaves public authorities facing serious difficulties. Therefore, the right to personal freedom and security should not be interpreted in such a way as to make it extremely difficult for judicial authorities and security officials -especially organized ones – to effectively combat crimes and criminality. Especially FETO/PCM and the nature and scope of the investigation in connection with FETO/properties PDY -privacy, cell-type structure, being organized each institution in himself, the attribution of holiness, obedience and submission on the basis of moving – like, considering of this investigation other criminal according to the investigation, it is obvious that much more difficult and complex.
Considering the features of a concrete case, the judges of all of the evidence has yet been met for the offence, whether considering the nature and importance of the work the applicant about the application of judicial control measures would be inadequate to arrest, apply moderate and lead us to conclude that it’s not arbitrary and baseless.
The Constitutional Court has decided that the claim that the right to freedom and security of the person has been violated on the grounds described is unacceptable due to the fact that it clearly lacks a basis.
2. In Terms of the Claim that the Detention Exceeded the Reasonable Time
Degrees with respect to the continuation of the applicant’s detention on the grounds of the decisions by the court that are described in terms of relevant and legitimate reasons for being deprived of their liberty to be sufficient indication of the investigation/prosecution of a difficult and complex process and carelessness in the execution of this process have not been identified, considering that 1 year, 5 months imprisonment it was concluded that the period is reasonable.
The Constitutional Court has decided that the claim that the right to freedom and security of the person has been violated on the grounds described is unacceptable due to the fact that it clearly lacks a basis.