Events
The applicant, who was a member of parliament at the time of the application, was detained as part of an investigation conducted by the Chief Public Prosecutor’s Office on charges of establishing and leading an armed terrorist organization and was referred to the 4th Criminal Court of Peace. As a result of the trial, it was decided that the applicant should be detained for the aforementioned crime. The applicant’s lawyer appealed the detention decision, and the 5th Criminal Court of Peace decided to definitively reject the appeal.
The Chief Public Prosecutor’s Office filed a lawsuit in the same high criminal court, requesting that the applicant be punished for the crimes of establishing or leading an armed terrorist organization, spreading terrorist organization propaganda, and inciting the public to participate in unlawful meetings and demonstrations. high criminal court decided to accept the indictment and to continue the applicant’s detention. Meanwhile, as a result of another investigation conducted by the Chief Public Prosecutor’s Office, an indictment was drawn up and a public case was brought against the applicant before the same high criminal court, requesting his punishment for the crime of membership in an armed terrorist organization. In addition, some cases previously brought against the applicant were joined.
The applicant was elected as a member of parliament in the 27th General Elections held on June 24, 2018. Upon this, the applicant, through his defense counsel, requested his release, stating that he enjoyed legislative immunity as a member of parliament; the court decided to release the applicant.
The public prosecutor’s office appealed this decision, and the 10th High Criminal Court issued an arrest warrant for the applicant and ordered his detention.
On January 25, 2019, the court decided to release the applicant. The applicant’s membership of parliament ended on June 4, 2020, when the Diyarbakır 2nd High Criminal Court’s sentence of 6 years and 3 months’ imprisonment for membership of an armed terrorist organization, in another case in which he had previously been tried, was read out in the General Assembly of the Grand National Assembly of Turkey (GNAT).
As a result of the trial conducted by the Diyarbakır 9th Heavy Penal Court without detaining the applicant, on December 21, 2020, the court convicted the applicant of the crimes of establishing or managing an armed terrorist organization and making propaganda for an armed terrorist organization, acquitted him of the other charges, and decided to try him in custody. The applicant’s appeal against the convictions was dismissed on the merits by the regional court of appeal. An appeal has been lodged against the convictions in question, and the case, in which the applicant remains in custody, is pending before the Court of Cassation.
Allegations
The applicant claimed that his arrest, detention, and imprisonment were unlawful and violated his right to liberty and security of person.
The Court’s Assessment
1. Regarding the First Imprisonment Order
The Constitutional Court, in many of its previous decisions, has examined the legality of arrests for terrorist crimes, particularly during periods when security forces were engaged in armed conflict with members of the PKK terrorist organization or when terrorist attacks intensified. In such cases, the Court has largely accepted statements or posts made by the applicant that closely resemble those made by the applicant as strong indications of guilt. Therefore, considering the findings and assessments in the Court of Cassation’s decision regarding the stance of the Democratic Society Congress (DTK) and the applicant’s speech as co-chair of this organization during the trench incidents, in which he claimed responsibility for the actions and attacks of the PKK terrorist organization, it is not possible to say that these are unfounded as strong indications of a terrorist crime.
On the other hand, it is seen that the applicant used expressions targeting the measures taken and cross-border operations carried out by Turkey to prevent the threat to national security posed by the YPG, which is known as the Syrian branch of the PKK terrorist organization and is stationed in certain areas in northern Syria, as well as the attacks carried out by this organization. It should not be overlooked that the statements used by the applicant in the aforementioned posts and speeches do not go beyond criticizing the cross-border operations organized by Turkey.
In this context, it is observed that the applicant used a style that evoked the threat of civil war against Turkey in relation to cross-border operations. It has been assessed that the applicant’s posts and statements made during Operation Olive Branch could be considered strong indications of a crime related to terrorism.
As explained in the initial detention order issued against the applicant, it is understood that there is factual basis for the grounds for detention, particularly with regard to the suspicion of flight risk. In terms of proportionality, considering the specific characteristics of the case, the severity of the penalties prescribed by the Diyarbakır 4th Criminal Court of Peace for the alleged crimes, and the nature of the case, it cannot be said that the conclusion that the detention measure is proportionate and that judicial control would be insufficient is arbitrary and unfounded.
The Constitutional Court ruled that the right to liberty and security of the person had not been violated with regard to the initial detention decision, based on the reasons explained.
2. Regarding the Second Detention Decision Issued After the Applicant’s Election as a Member of Parliament
The legislative immunity provided for in Article 83 of the Constitution is a temporary safeguard aimed at preventing members of parliament from being prevented from performing their legislative duties in a timely manner due to criminal prosecutions, and it automatically ceases to exist upon the termination of their membership in parliament.
However, the Constitution does not regulate legislative immunity in an absolute manner; Article 83 of the Constitution introduces certain exceptions and limitations to legislative immunity. Accordingly, legislative immunity is generally limited to the term of office of a member of parliament. Furthermore, if a member of parliament is alleged to have committed a crime before or after the election during this period, their immunity may be lifted by a decision of the Assembly. On the other hand, the existence of a crime punishable by severe punishment is one of the exceptions to legislative immunity.
Finally, the situations listed in Article 14 of the Constitution are also excluded from immunity, provided that the investigation was initiated before the election. In this case, provided that the investigation was initiated before the election, it is not possible to argue that legislative immunity exists for crimes covered by Article 14 of the Constitution. In the case concerning the applicant, the court ruled that the crime of leadership of a terrorist organization, which was also the subject of the detention measure, fell within the scope of Article 14 of the Constitution and rejected the applicant’s request to suspend the proceedings on the grounds of legislative immunity. Therefore, it is necessary to determine whether the crime of terrorist organization leadership, which is the subject of the applicant’s arrest, falls within the scope of Article 14 of the Constitution.
There is no provision in the Constitution or relevant laws specifying which crimes fall under Article 14 of the Constitution and thus constitute an exception to legislative immunity, provided that the investigation began before the election. Only the last paragraph of the article stipulates that penalties for those who act contrary to the provisions of the first two paragraphs shall be regulated by law. Article 83 of the Constitution provides guarantees regarding legislative immunity for members of parliament. In this context, when specifying the cases that constitute exceptions to legislative immunity, reference is made to Article 14 of the Constitution, and it is stated that the cases listed in the said article constitute exceptions, provided that the investigation began before the election.
However, the constitutional legislator did not explicitly specify which crimes fall within the scope of the phrase “the situations in Article 14 of the Constitution” in the second paragraph of Article 83 of the Constitution and did not enact a law defining such crimes. Therefore, courts of first instance determine whether the crime under trial falls within the scope of Article 14 of the Constitution by interpreting and applying the constitutional provision directly, rather than interpreting and applying a law enacted by the legislature. Therefore, it is necessary to assess whether the interpretation made by the courts of first instance regarding Article 14 of the Constitution complies with the legality criterion, which implies predictability and certainty.
As in normative review, the authority to interpret the provisions of the Constitution in individual applications ultimately rests with the Constitutional Court.
The third paragraph of Article 14 of the Constitution states, “Penalties to be imposed on those who act contrary to these provisions shall be regulated by law.” Although the legislature has regulated many types of crimes in criminal laws, which of these types of crimes fall within the scope of Article 14 of the Constitution has not been determined by a law produced by the Grand National Assembly of Turkey. Which of the crimes in the criminal laws fall within the scope of Article 14 and are therefore excluded from the scope of legislative immunity depends, as explained above, on which of the possible interpretations of the general wording of the first and second paragraphs of Article 14 of the Constitution will be preferred by the implementers.
In its decision regarding Ömer Faruk Gergerlioğlu, the Constitutional Court ruled that, due to the phrase “cases falling within the scope of Article 14 of the Constitution” in the second paragraph of Article 83 of the Constitution, which exempts crimes falling within the scope of the first paragraph of Article 14 of the Constitution from legislative immunity, the text of the first paragraph of Article 14 of the Constitution that the text of the first paragraph of Article 14 of the Constitution, because it falls within the scope of the first paragraph of Article 14 of the Constitution, is not conducive to the meaningful determination of crimes exempt from legislative immunity solely by the decisions of judicial bodies and, consequently, to their interpretation in a manner that provides certainty and predictability.
has ruled. Accordingly, due to the absence of constitutional or legal rules providing predictability that would ensure the safeguards of legislative immunity determining the scope of the cases listed in Article 14 of the Constitution, the Court has ruled that the phrase “cases listed in Article 14 of the Constitution” in the second paragraph of Article 83 of the Constitution “cases under Article 14 of the Constitution” in the second paragraph of Article 83 of the Constitution must be interpreted in accordance with the provisions of the third paragraph of
Article 14 of the Constitution and the third paragraph of Article 67 of the Constitution, which regulates the rights to vote, be elected, and engage in political activities. It was concluded that, outside of the legislature’s regulation, it was not possible to ensure certainty and predictability through the interpretations made by the judiciary regarding which crimes fall within the scope of the phrase “cases specified in Article 14 of the Constitution” in the second paragraph of Article 83 of the Constitution.
The aforementioned decision stated that Article 83 of the Constitution, which protects legislative immunity, and Article 14 of the Constitution, which prohibits the abuse of fundamental rights and freedoms, can only fully fulfill their functions if interpreted in the context of protecting democracy and on the basis of rights.
It has been assessed that the courts did not interpret the aforementioned constitutional provisions in favor of freedoms and that there is no legal system (constitutional or legal regulation providing fundamental guarantees, certainty, and predictability) with material and procedural safeguards that would compel them to make such an interpretation. Consequently, although there was a direct obstacle arising from the Constitution before the applicant, who was released after being elected as a member of parliament and generally benefiting from legislative immunity, his re-arrest and deprivation of liberty are incompatible with Article 83 of the Constitution, which contains guarantees relating to legislative immunity.
The Constitutional Court ruled that the second arrest decision issued after the applicant was elected as a member of parliament violated the right to liberty and security of the person for the reasons explained.