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 to detain the applicant for the aforementioned crime. The applicant’s defense counsel 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 seeking the applicant’s punishment for the crimes of establishing or managing an armed terrorist organization, spreading terrorist organization propaganda, and inciting the public to unlawful assembly and demonstration marches. The 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 prepared and a public case was filed against the applicant in the same heavy penal court, seeking his punishment for the crime of membership in an armed terrorist organization. In addition, some of the cases previously filed against the applicant were consolidated.
The applicant was elected as a member of parliament in the 27th General Election held on June 24, 2018. Upon this, the applicant requested his release, stating through his defense attorney that he enjoyed legislative immunity due to his status as a member of parliament; the court decided to release the applicant. The public prosecutor’s office appealed this decision, and the 10th Heavy Penal 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 status as a member of parliament ended on June 4, 2020, when the Diyarbakır 2nd High Criminal Court’s final conviction of 6 years and 3 months imprisonment for membership in an armed terrorist organization, in another case in which the applicant had previously been tried, was read out in the General Assembly of the Grand National Assembly of Turkey (TBMM).
At the end of the trial, which the Diyarbakır 9th Heavy Penal Court conducted 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 propagating an armed terrorist organization, acquitted him of the other charges, and ordered his detention pending trial. The applicant’s appeal against the convictions was dismissed on its merits by the regional court of appeal. An appeal has been lodged against the aforementioned convictions, and the case, in which the applicant remains in custody, is pending before the Court of Cassation.
Allegations
The applicant claimed that his right to liberty and security of person had been violated due to the unlawfulness of his arrest, detention, and imprisonment.
The Court’s Assessment
1. Regarding the Initial Imprisonment Decision
In many previous decisions, the Constitutional Court has accepted statements or posts that are largely similar to those made by the applicant in his speeches and posts as strong indications of guilt in its examinations of the legality of detention for terrorism-related crimes, particularly during periods when security forces were engaged in armed conflict with members of the PKK terrorist organization or when terrorist attacks were intensifying. Accordingly, considering the findings and assessments in the Court of Cassation’s decision regarding the position 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 terrorism-related crime.
On the other hand, it is seen that the applicant used certain expressions targeting the measures taken and the cross-border operations carried out to prevent the risk to national security posed by the YPG, which is known to be the Syrian branch of the PKK terrorist organization and is stationed in certain areas in northern Syria by Turkey, and 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 go beyond criticizing the cross-border operations organized by Turkey. In this context, it is seen that the applicant used a style that evoked the threat of civil war against Turkey in relation to the 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.
It is understood that the factual basis for the grounds for detention, particularly regarding the suspicion of flight, as explained in the initial detention order issued against the applicant, exists. With regard to proportionality, considering the specific characteristics of the case, it cannot be said that the conclusion that the detention measure is proportionate and that judicial control would be insufficient, taking into account the severity of the penalties prescribed for the crimes alleged by the Diyarbakır 4th Criminal Court of Peace and the nature of the case, is arbitrary and unfounded.
The Constitutional Court ruled that the right to liberty and security of the person was not violated in terms of 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
Legislative immunity, as stipulated in Article 83 of the Constitution, is considered a temporary guarantee that aims to prevent members of parliament from being prevented from performing their legislative duties by untimely criminal prosecutions and is automatically lost upon termination of membership in parliament.
However, the Constitution does not regulate legislative immunity absolutely; Article 83 of the Constitution introduces certain exceptions and limitations to legislative immunity. Accordingly, immunity is, as a rule, limited to the term of office as a member of parliament. Furthermore, during this period, it is possible for a member of parliament’s immunity to be lifted by a decision of the Assembly if they are accused of committing a crime before or after the election. On the other hand, the existence of a crime punishable by severe punishment is one of the exceptions to legislative immunity. Finally, the situations covered by Article 14 of the Constitution are also excluded from immunity, provided that the investigation has been initiated before the election. In this case, it is not possible to say that legislative immunity exists for crimes covered by Article 14 of the Constitution, provided that the investigation has been initiated before the election. In the case concerning the applicant, the court ruled that the crime of leading 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 leading a terrorist organization, for which the applicant was detained, falls within the scope of Article 14 of the Constitution.
The Constitution—or relevant laws—does not contain any provisions specifying which crimes fall under Article 14 of the Constitution and thus constitute exceptions to legislative immunity, provided that the investigation began before the election. only the last paragraph of the article states that penalties to be imposed on those who engage in activities 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, while specifying the circumstances that constitute exceptions to legislative immunity, it refers to Article 14 of the Constitution and states that the situations listed in that article are exceptions, provided that the investigation has been initiated before the election.
However, the constitutional legislator did not explicitly specify what crimes fall under the phrase “situations in Article 14 of the Constitution” in the second paragraph of Article 83 of the Constitution, and the lawmaker did not enact any legislation defining such crimes. Therefore, the courts of first instance determine whether the crime subject to trial falls within the scope of Article 14 of the Constitution by interpreting and applying the constitutional provision directly, rather than by interpreting and applying a legal text 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 criterion of legality, which expresses predictability and certainty. As in the case of normative review, the final authority to interpret the provisions of the Constitution in individual applications also belongs to the Constitutional Court.
The third paragraph of Article 14 of the Constitution states that “Penalties to be imposed on those who engage in activities 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 under Article 14 of the Constitution has not been determined by a law that is the product of the will of the Grand National Assembly of Turkey. Which crimes in the criminal laws will be included within the scope of Article 14 and, consequently, excluded from the scope of legislative immunity depends on which of the possible interpretations of the general wording of the first and second paragraphs of Article 14 of the Constitution, as explained above, will be preferred by the implementers.
In its decision regarding Ömer Faruk Gergerlioğlu, the Constitutional Court ruled that the text of the first paragraph of Article 14 of the Constitution, which excludes crimes falling under the scope of the first paragraph of Article 14 of the Constitution from legislative immunity due to the phrase “situations under Article 14 of the Constitution” in the second paragraph of Article 83 of the Constitution, and therefore, because it falls within the scope of the first paragraph of Article 14 of the Constitution, it is not suitable for meaningfully determining crimes excluded from legislative immunity solely by the decisions of judicial bodies and thus interpreting them in a way that ensures certainty and predictability. Accordingly, in the absence of constitutional or legal rules providing predictability that would ensure the guarantees of legislative immunity, which sets out the scope of the situations in Article 14 of the Constitution, the Court ruled that the phrase “situations under Article 14 of the Constitution” in the second paragraph of Article 83 of the Constitution should 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 right to vote, be elected, and engage in political activities. It was concluded that, apart from the legislature’s regulation, it is not possible to ensure certainty and predictability through interpretations made by the judiciary regarding which crimes fall within the scope of the phrase “the situations referred to in Article 14 of the Constitution” in the second paragraph of Article 83 of the Constitution.
The aforementioned decision states that both 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 based on rights. It was assessed that the courts did not interpret the aforementioned constitutional provisions in favor of freedoms, and that there was no legal system (a constitutional or legal regulation providing fundamental guarantees, certainty, and predictability) with substantive 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 enjoying legislative immunity, his re-arrest and deprivation of liberty is incompatible with Article 83 of the Constitution, which contains guarantees regarding legislative immunity.
The Constitutional Court ruled that the right to liberty and security of the person was violated in relation to the second arrest decision issued after the applicant was elected as a member of parliament, based on the reasons explained.