Events
According to the investigations conducted throughout Turkey against the Fetullah Terrorist Organization / Parallel State Structure (FETÖ/PDY) and statements received from judicial authorities, information was obtained that people at the top of the organization’s hierarchy referred to FETÖ/PDY as “FETÖ/PDY”. Those who are in the military intimate structure of the organization and are in a lower position in the organization in accordance with the precautionary rules that are predetermined and make it difficult to detect in order to ensure intra-organizational communication.
Upon this, the Public Prosecutor’s Office launched an investigation in order to determine the identities of the people belonging to the military intimate structure of the organization. As a result of the investigation, the Prosecutor General’s Office concluded that the applicant had been summoned 24 times in a row and 46 times individually, and that he had committed the charged crime by taking part in the military intimate structure of the organization. these calls were made by a military close official of the organization, and the statements of HS
In the criminal case, the court of first instance convicted the applicant of being a member of an armed terrorist organization; the regional court of appeal rejected the conviction decision on the merits. Supreme Court also upheld the decision.
The Allegations
Applicant claimed that his right to a fair trial had been violated due to the unlawful acquisition of records related to eavesdropping on communications made via telecommunications.
The Court’s Assessment
A. About the Data Obtained as a Result of the Detection of Communication with Payphones by Payphone/Contoured Landline (Telephone) and Payphones
In the concrete case, the conclusion reached by the judicial authorities that the applicant was a member of the FETÖ/PDY military intimate organization is primarily based on the HTS records of payphones/landlines and the analysis and evaluation processes carried out by the law. The enforcement units on these records.
In many decisions of the Court of Cassation, similar to the concrete case, the legal nature of the judicial proceedings conducted by the judicial authorities against the military intimate structure of FETÖ/ PDY and the legal nature of the HTS records obtained upon the decision to detect communication over the Internet have been evaluated. Telecommunications received regarding payphones/landlines during this process. In these decisions, the investigations conducted by the investigative authorities based on the authority granted by Article 160 of Law No. 5721 were evaluated upon the determination that FETÖ /PDY members used a landline or a payphone line.
Public Sunday, kiosks, etc. in the lines used for a fee for the purpose of maintaining organizational meetings by special methods, it is possible to examine the HTS records by taking a decision to detect communications for these lines in accordance with Article 135 of the same Law. On the other hand, it was concluded that it is also in accordance with the law to reach people who may be suspects of the crime in accordance with the analyses conducted after the persons who are not related to the crime and who fall within the scope of the investigation have been eliminated.
Records on the examination of HTS records. As a result, the Court of Cassation has assessed in many of its decisions that the method of obtaining HTS records as evidence of landlines together with paymasters/persons is in compliance with the law. Therefore, in the concrete case, in accordance with the judge’s decision, it was evaluated that HTS records should be obtained from the Information and Communication Technologies and Communication Authority (BTK) regarding communication with payphone / controller landlines and technical analysis should be performed on these records. The applications made by law enforcement units for the purpose of identifying people who may be suspicious are not an obvious error of discretion or an application involving obvious 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 had not been violated.
B. About the Data Obtained as a Result of Detecting the Communication Related to the GSM Line Belonging to the Applicant
Upon the request of the Attorney General’s Office, the HTS records of the applicant’s GSM line were taken by the judge’s office, all records were examined by law enforcement agencies and a report entitled HTS Data Review and Evaluation Report was prepared. In line with the Decrees contained in the said report and the statements of other persons who were investigated for allegedly being members of the same organization, it became clear that the applicant was searched one after the other and singularly by the person who was considered to be a suspect. the fact that he was the imam in charge of the military intimate structure of the organization and that he was contacted by calling the paymaster/controller from landlines one after the other and one after the other – two of them using Decryption method – was accepted as conclusive evidence of this incident.
Conviction. The applicant stated that although he was not a suspect in this investigation during the period when the investigation was ongoing, the HTS records belonging to his own GSM line were also accessed from the contents of the HTS records obtained from the HTS records obtained on his Payphone/Top-up landlines. an investigation has been initiated into the military intimate structure of the organization, and there is no judge’s decision made about it.
At this point, since the HTS data belonging to the GSM line used by the applicant was also obtained as a result of analyzing the HTS data belonging to payphone/contactor landlines by law enforcement units, an evaluation should also be made. In order to determine the communication established from the GSM line belonging to the applicant, it was made in terms of the process of obtaining the HTS records of this line in accordance with the judge’s decision made at the request of the Chief Prosecutor’s Office.
The Court of Cassation emphasized that law enforcement units should prepare personalized 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 it was among the supervisor’s duties to obtain the applicant’s HTS records in accordance with the judge’s Deci-sion in order to obtain the said report.
The application was made to the prosecutor’s office specified in Article 160 of 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 seen that the determinations and evaluations made by the Court of Cassation, the courts of appeal and the courts of first instance regarding the use of the data obtained in accordance with this protection measure as evidence do not contain a clear provision. an error of discretion and an obvious arbitrariness.
On the other hand, the judicial authorities have made the necessary examinations, examinations and evaluations regarding the authenticity or reliability of the submitted HTS data. These data transmitted to the judicial authorities were analyzed and interpreted by the technical units. The defense side also had the opportunity to communicate with the applicant via landlines via payphones/contactees, to dispute the authenticity of the evidence that the applicant was part of the military intimate structure of FETÖ/ PDY and to oppose the use of such evidence in accordance with the Article. Equality of arms and principles of contentious trial.
In the light of this information, it was assessed that there was no violation in terms of the allegations of using the HTS data obtained from the GSM line used by the applicant as evidence in accordance with the decisions regarding the detection of communications established via telecommunications. It has been obtained without legal basis or in violation of the law.
For the reasons explained, the Constitutional Court ruled that the right to a fair trial within the scope of the right to a fair trial had not been violated.
You can reach our other article samples and petition samples by clicking here.