Korcan Pulatsü, Application No: 2012/726, 2 July 2013

A) Facts

The applicant was arrested in relation to the so-called “Balyoz” investigation on 17 June 2011. The applicant’s requests to be released were repeatedly rejected by the first instance court on the grounds such as reasons for arrest existed, the possibility that him influencing evidence continued and judicial controls would prove insufficient. On 21 September 2012, the applicant was convicted by a first instance judgment and the court ruled for keeping him under arrest. While the Constitutional Court was examining the individual application, the case was at the stage of appeal. The applicant claimed that his arrest was based on some generalized grounds, that the time period was not reasonable and judicial controls were not used despite being sufficient, his objections to arrest were decided on without trial and finally that it was proved that the digital data which were cited as the ground for his arrest were fabricated.

B) Judgment and Reasoning of the Court

The Constitutional Court made the examination as regards the application within the frame of right to liberty and security protected under Article 19 of the Constitution and in terms of the Court’s jurisdiction ratione temporis and assessment of evidence under Article 36 of the Constitution.

In its opinion, the Ministry of Justice stated that the Constitutional Court lacked jurisdiction since the judgment about the applicant was given before 23 September 2012 on which the Constitutional Court’s jurisdiction ratione temporis commenced and also declared the Court did have jurisdiction as the applicant had raised an objection against the decision in favour continuation of the arrest and a new decision was issued afterwards.

The Constitutional Court explained that the main aim of the applicant in his application on the grounds that the arrest was unlawful was to get released. Stating that in the event the Constitutional Court determines as such, the grounds for continuation of the arrest would cease to exist and the person would be freed, applications with this aim were “possible to be filed as long as the state of arrest continues provided that ordinary legal remedies have been exhausted”. But in case the arrest ends due to the applicant getting released or convicted, it would be possible to rule only for a declaration of unlawfulness and compensation and an individual application shall be filed after remedies in that sense are exhausted.

The Court stated that an individual application examination was only possible in relation to the finalized process and decisions after 23 September 2012. The applicant was no more “under arrest in relation to a criminal charge” after the conviction awarded by the first instance court. The Constitutional Court even referred to the fact that finalization of the conviction was not required for this and precedent of the ECtHR and the Turkish Court of Appeal were also in the same direction. In the case at hand, the arrest of the applicant in relation to a criminal charge ended with the conviction by the first instance judgment. That the applicant filed an objection against this has no bearing on the nature of the apprehension. Since the judgment was issued before 23 September 2012, the Constitutional Court lacked jurisdiction.

The Constitutional Court, stating in relation to the claims regarding the right to a fair trial that proceedings are still at the stage of appeal, emphasized the secondary nature of the application and found the application inadmissible as a result of non-exhaustion of the remedies.

C) Significance of the Decision

The Korcan Pulatsü judgment is of great significance in relation to determination of the boundaries of the Constitutional Court’s jurisdiction ratione temporis concerning arrest warrants. The decision signals, by stating that the state of arrest after the first instance judgment is different to the one in relation to a criminal charge, differing regimes of examination will be constituted in relation to these restrictions. This approach forms the basis of the established jurisdiction of the Constitutional Court on many matters such as lawful length of arrest, excess of a reasonable time in arrest and remedies against the measure of arrest.