Şahin Alpay’s release ordered in compliance with Constitutional Court ruling

<video:944025>

The Constitutional Court has announced its reasoned ruling on former Zaman newspaper columnist, Şahin Alpay, who was in detention pending trial in the FETO terrorist organisation trial. Following the passing by the Constitutional Court of a rights violation ruling for the second time, Şahin Alpay was released by majority vote with his house arrest ordered pending trial by Istanbul Serious Crime Court No 13. Şahin Alpay had been detained on 30 July 2016.

 The Constitutional Court, which once more issued a rights violation ruling over the application made for a second time by detained columnist Şahin Alpay, posted the full text of the ruling on its website and also on Twitter. The Constitutional Court, whose first ruling was not complied with in violation of the Constitution by the first-instance court, stated that ‘his right to freedom and security of person enshrined in Article 19 of the Constitution has been violated’ and ruled that the decision for the violation and its consequences to be eliminated through ending Alpay’s detention be remitted to the first-instance court.

 Released by the first-instance court

 Following the ruling that the Constitutional Court issued on Alpay, Istanbul Serious Crime Court No 13 ordered Alpay’s release by unanimous vote. The court at the same time ruled that the judicial control measures of a ban on travelling abroad and leaving home be applied

 The Constitutional Court made the following comments in its statement on the matter:

 The Plenary Session of the Constitutional Court ruled on 15/3/2018 on the second application made by Şahin Alpay (Application No: 2018/3007), for the reasons summarised below, that his right to freedom and security of person enshrined in Article 19 of the Constitution had been violated and that the decision for the violation and its consequences to be eliminated through ending the applicant’s detention be remitted to the issuing Court.

 According to the third paragraph of Article 19 of the Constitution in which the right to freedom and security of person is enshrined, the precondition for detention is the existence of a “strong indication” that the crime has been committed. For this reason, in individual applications made on the allegation that detention is unlawful, it is a constitutional obligation for this precondition to be examined. The Constitutional Court’s examination here is limited to an assessment of the lawfulness of the detention independent of the probable outcome of the trial. It cannot be said that the previous rights violation ruling issued on the applicant in this regard contained an assessment on the merits of the penal trial.

 On the other hand, it is manifest that, pursuant to Article 153 of the Constitution, the rights violation ruling that the Constitutional Court issued on the applicant is final and binding on everybody including the judicial organs. It is consequently the duty of the courts of instance, not to assess the scope of the Constitutional Court’s subject-matter and territorial jurisdiction, but to eliminate the violation declared by the Court and its consequences.

 The Constitutional Court in concluding there had been a violation in its previous ruling made the declaration that that a strong indication that the crime had been committed had not been adequately adduced by the investigating authorities. Following the Constitutional Court’s violation rulings of this nature, the courts of instance must end the detention whose precondition has been declared to be absent. Otherwise, the violation and its consequences will not have been eliminated. Nevertheless, in quite exceptional circumstances in which there is the possibility of adducing a “strong indication” that the crime has been committed with new facts that were not assessed in the Constitutional Court’s violation ruling, it can be accepted that the action necessitated by the violation ruling has been taken. In the case at hand, the applicant’s detention was not ended by the courts of instance following the violation ruling, nor was the existence of the above-mentioned exceptional circumstance adduced.

AYM, 'hak ihlali var' dedi, yerel mahkeme Şahin Alpay hakkında tahliye kararı verdi