Ramazan Aras, Application No: 2012/239, 2 July 2013

A) Facts

The applicant, in the course of criminal investigation initiated against him, was taken into custody on 4 February 2007 and arrested on 8 February 2007. In the course of the proceedings, on 27 September 2012 he requested his release on the basis that the period of remand detention had exceeded the legal upper limit determined by Article 100 of the Code of Criminal Procedure (CCP) but this request was dismissed. Afterwards, he was convicted and sentenced to imprisonment on 25 October 2012 and therefore the court ruled on the continuation of the detention.

B) Judgment and Reasoning of the Court

The Constitutional Court, after the admissibility review, examined the applicant’s complaints with regard to the claims of illegality of the detention and of the period of remand detention exceeding the reasonable time in relation to Article 19(3) and (7) of the Constitution.

As a part of the admissibility review, the Constitutional Court pointed out the subject of whether the compensation determined under Articles 141 and 142 of the Code of Criminal Procedure is an effective remedy or not. For the Constitutional Court, the applicant’s request is not towards a compensation, but a release from arrest. For this reason, the remedy stated under Article 141 of the CCP is not capable of meeting his request and without an end to the remand detention, it cannot be regarded as an effective remedy. Moreover, the Court further expressed that there is not a single incident offering a chance of success under Article 141 of the CCP before the suspect’s conviction is finalized.

In the examination of the merits, first of all, the claim that the illegality of detention as a measure was evaluated. The right to liberty should only be restricted in compliance with Article 13 of the Constitution and on the conditions and procedures provided by law. Even though the primary responsibility lays with instance courts and administrative authorities, the requirement for the Constitutional Court to inspect the existence of the legal justification for the deprivation of liberty was stressed. In this regard, as a natural requirement of the rule of law, the law should carry the characteristics of transparency, stability and predictability in order to prevent arbitrariness.

The Court emphasizes the fact that the duration of detention can be extended up to five years. The temporal limitations in the law regarding detention is applicable for all charges expressed in the criminal proceedings file. This derives from the fact that the investigation being carried out as a whole, therefore detention measure would be consequential for all charges in total. Additionally, since detention is not applied as a sanction, no separate detention periods can be calculated for every charge. The Court considers that the calculation of the remand detention on the basis of the number of charges would violate the requirements of the right to liberty to be restricted by law and this restriction to be foreseeable. Extending the detention on remand in this manner would prove to be a hazardous practice against the right to trial within a reasonable time.

In the present case, after establishing a violation of Article 19(3) of the Constitution, the Court went on to examine the applicant’s complaint about the detention period exceeding a reasonable time within the scope of Article 19(7) of the Constitution. The Court expressed the need to strike and maintain a balance between individual’s right to liberty and public interest in assessing the reasonable time and underlined the essential role of the principle of presumption of innocence in this balance.

Even though the existence of the grounds for arrest stood as a sufficient justification at the time when the arrest was warranted, the justifications for the continuation of detention must also be relevant and sufficient in the course of the time.

The reasonable time calculation should be started from the first date of restriction of the right to liberty till the date on which the person is released. However, when the person is convicted by the first instance court, the remand detention would end even if the judgment is not final; this is because the person is no longer detained on the basis of a criminal charge. For this reason, the assessment of reasonable time was conducted only with reference to the period ending with the first instance judgment.

In the present case, the applicant was detained for a period of 5 years 10 months before the conviction verdict. The reasonable time assessment was conducted only for the period not exceeding the legal time limit. While pointing out to the fact that the applicant’s claims were not even considered and replied, the Constitutional Court has found that the reasoning was neither relevant nor sufficient.

In the light of these considerations, the Constitutional Court has decided that paragraph 3 and 7 of Article 19 of the Constitution were violated.

C) Significance of the Judgement

The Ramazan Aras application emphasizes that the length of the remand detention as a protective measure shall be consequential for all the charges in the criminal file. This application and other relevant decisions have affected the case-law of the Court of Appeal.

Another point emphasized by this application, is to strike a balance between the individual right of liberty and public interest while assessing the reasonable time with regard to the remand detention. Furthermore, this judgment constitutes the first example in the case-law of the Court stating that that the decision of the first instance court would end the detention on remand and from this moment the person will be a convicted detainee. As a result, the time period after the conviction shall not be taken into consideration while examining the reasonableness and legality of the period of detention. Even though this newly-established case-law is in compliance with the precedents of the Court of Appeal and the European Court of Human Rights, it may lead to consequences that would harm the right to liberty.