Unjust Arrest

Events

The applicant’s wife was detained and arrested as part of the Fetullahçı Terrorist Organization/Parallel State Structure (FETÖ/PDY) investigations. Upon the Decisionto search the residence and confiscation of the digital materials of the family members under the same roof, the applicant’s mobile phone and SIM card were also confiscated. It has been alleged that the applicant downloaded and used the ByLock program over two phone lines registered to his wife.

An investigation has been launched against the suspects, including the applicant, for allegedly being a member of FET Dec/PDY. The Attorney General’s escape and that is likely to destroy the evidence of suspects, considering the nature of the alleged crime and the suspects in a healthy way with questioning the evidence of the crime, evidence collection, preservation and fair investigation, a fast, efficient manner for the purpose of Article 90 of the Criminal Procedure Law No. 5271 in concluding. and 91. article 6 of the Decree Law on the State of Emergency No. 667. he decided that they would be arrested in accordance with the article and detained for a period of seven days. According to this instruction, the applicant was arrested and detained in Adana. As part of the investigation conducted in Istanbul, law enforcement officers stationed in Istanbul came to pick up the applicant from the Adana Police Department, where he was in custody; During a meeting with law enforcement officers, the applicant stated that he had a 14-month-old baby in need of care, and there was no one to deliver his child to. After that, the law enforcement officers had a telephone conversation with the prosecutor and the prosecutor instructed the applicant to continue his detention.

The applicant appealed the detention decision through his lawyer. The Prosecutor General’s Office referred the applicant to the magistrate’s office with a request to arrest him for being a member of a terrorist organization. After the applicant’s interrogation, he was arrested for membership in a terrorist organization. The arrest decision was based on the documents, minutes and reports that the ByLock program was installed on the mobile phone used by the applicant.

The applicant appealed the arrest decision; the magistrate’s office stated that a case had been filed against the applicant and decided that the appeal against the detention should be sent to the High criminal court for examination. The criminal court decided to continue the detention on the grounds that there was a strong suspicion of a crime in the tensip examination, that the crime was one of the catalog crimes, and that the judicial control provisions would not be sufficient to provide the expected benefit from the arrest compared to the nature of the act.

The case in which the applicant was tried and the case in which his wife was tried were merged on 24/1/2018, and the case against the applicant was separated from the merged case on 10/4/2018. As a result of the trial, the applicant’s acquittal was decided. Upon finalization of the acquittal decision, the applicant filed a lawsuit demanding pay of 20,000 TL financial and 40,000 TL moral damages due to unfair detention and arrest measures, confiscation of his digital materials. As a result of the trial, it was decided to pay the applicant 3.541,92 TL material, 6.000 TL moral compensation and 1.320 TL maktu power of attorney, and the applicant’s claims for compensation related to judicial control and confiscation measures were rejected. The applicant has applied to the appeal law, stating that the compensation awarded is low. The district court of justice has finally decided to reject the appeal application on the basis of correcting the material compensation to be TL 3,537.02 and the power of attorney fee to be tl 1,430.55.

Count

The applicant claimed that his right to freedom and security of person was violated due to insufficient compensation paid in the compensation case filed due to unfair detention and arrest measures.

Evaluation of the Court

90 Of the Law No. 5271 on the arrest and detention of the applicant as part of a criminal investigation. and 91. it has been realized within the framework of the provisions of the articles. Therefore, the detention measure applied against the applicant has a legal basis.

It is necessary to examine whether there are concrete indications that the applicant, who is a prerequisite for the detention measure, which is understood to have a legal basis, has committed a crime. In the concrete case, the applicant was detained for allegedly using a ByLock over a telephone line registered on behalf of his wife. The applicant’s wife stated in her law enforcement statement dated 4/11/2016 that the line in question was used by the applicant. The applicant also admitted in his statement that he had used the telephone line from time to time. The Constitutional Court notes that, given the features of the ByLock application, the use of this application by people or the installation of it on their electronic/mobile devices for use may be considered a symptom by the investigating authorities in terms of their interest in FETO/PDY. In the light of these facts, it is seen that there is a doubt that the applicant may have used the ByLock program over the mentioned telephone line. In this regard, it was concluded that there are facts confirming the suspicion of a crime necessary for the implementation of the detention measure.

On the other hand, considering that the applicant was detained without a judge’s decision, it should also be looked at whether he was red-handed in a concrete incident or whether there was a situation that was inconvenient for his delay. The investigating authorities have assessed the applicant’s condition within the scope of the situation found to be inconvenient in his delay.

The crimes of being a member of an armed terrorist organization that the applicant was Decisively arrested for are among the types of crimes for which severe criminal sanctions are provided within the Turkish legal system, and the weight of the punishment provided for in the law in relation to the alleged crime is one of the situations that indicates suspicion of escape. In addition, since the investigation of terrorist crimes poses serious challenges to public authorities, the right to personal freedom and security should not be interpreted in a way that can make it extremely difficult for judicial authorities and security officials -especially organized ones – to effectively combat crime and criminality. Therefore, considering the characteristics of the terrorist organization under investigation, it is obvious that these investigations are much more difficult and complex than other criminal investigations.

The investigating authorities are in a better position than the Constitutional Court to assess whether there is an objectionable situation in the delay. Undoubtedly, these assessments of the investigating authorities are subject to the supervision of the Constitutional Court. In the concrete case, there is no situation that would require intervention in the opinion reached by the investigating authorities in the way that there is a disadvantage in delaying. Therefore, Article 19 of the Constitution. it has been concluded that the assurance contained in the last sentence of the third paragraph of the article has been provided.

In addition, there is no hesitation that the purpose of apprehending the applicant, who has been found to have concrete indications about committing a crime, is to ensure that the investigation procedures related to this suspicion of crime are carried out and the material truth is revealed. Jul. Therefore, it cannot be said that the applicant’s detention was not based on a constitutionally legitimate purpose.

Finally, it is also necessary to determine whether the arrest measure against the applicant is metered. The applicant’s wife stated in her law enforcement statement dated 4/11/2016 that the line in question was used by the applicant. The investigating authorities have claimed that the applicant used the ByLock program through this statement given in law enforcement. It is not clear from the specifics of the concrete incident why it is necessary to detain the applicant after a period of about a year has elapsed since the aforementioned declaration. On the other hand, the applicant; despite the fact that in the petition to appeal the detention decision and in the interview with law enforcement officers on 3/11/2017 (which the prosecutor was informed of), the applicant said that she had a one-year-old baby in need of nursing care, her husband was under arrest, there was no person to whom she would deliver her baby, this particular situation was not taken into account in terms of the moderation of detention. In this aspect, it has been concluded that the detention process is immeasurable. Although the charge related to the detention measure is related to the fact that caused the declaration of a state of emergency, this measure, applied in the above-mentioned conditions, was not considered a measure required by the state of emergency.

In a situation where the detention measure is not measured, it is concluded that the arrest measure is also not measured at home. Although the detention and arrest measure was unlawful, the court of cassation granted the applicant the Article 19 of the Constitution. he has not paid any appropriate compensation for these illegal transactions on the grounds that he has been subjected to a transaction contrary to the principles set out in the third paragraph of his article.

The Constitutional Court has decided that the right to compensation has been violated in connection with the right to personal freedom and security on the grounds described.

 

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