Sencer Başat and Others, Application No: 2013/7800, 18 June 2014

A) Facts

The criminal proceedings were started on 23 July 2010 within the scope of the “Balyoz” investigation carried out in regard to the applicants. With the judgments finalized in 2013, the conviction decisions regarding 237 suspects and acquittal decisions regarding 36 suspects were upheld, decisions given in regard to 88 suspects were reviewed and reversed. The conviction decisions were delivered on the basis of the communications, operational plans and digital data allegedly belonging to the year of 2003 and seized in military command centers.

The applicants claim that they were arrested and deprived of their liberty against the law during the entire proceedings, the expert opinion on the digital data was insufficient, the evidence was not properly examined, their witness demands were not taken into consideration, the conviction judgments were delivered on the basis of illegally acquired or false evidences, the relevant local court had no jurisdiction and the trial was not carried out in line with the principle of equity. Depending on these arguments, they claimed that their right to equality, right to liberty, right to a fair trial and presumption of innocence is violated.

B) Judgment and Reasoning of the Court

With regard to the complaints related to the right to liberty, the Constitutional Court declared that it does not have ratione temporis jurisdiction in view of the fact that the first instance court had rendered its decision on merits ending the arrest of the suspects before the date of 23 September 2012.

Evaluating the complaints regarding the examination of digital data within the ambit of the right to a fair trial, the Constitutional Court stated that the right to due examination of the case would be violated when the courts avoid responding to the complaints and claims of the parties. Furthermore, the lack of examination of the applicants’ claims by the first instance court was considered within the scope of right to a reasoned judgment and the Constitutional Court stated that Article 141 of the Constitution establishing the obligation of reasoned judgment falls under the scope of the right to a fair trial.

Although the courts are not obliged to respond in detail to every single claim of the parties, they must give well-founded, logical and consistent answers to the queries affecting the outcome of the trial. The courts should submit a diligent reasoning that explains the justifications why the arguments of prosecution/defence are preferred than the other, in regard to a matter considered to be decisive for the outcome of the proceedings.

The Constitutional Court, examining in the present case the claims of the suspects and the detailed responses of the first instance court to these claims in its reasoned judgment, decided that the right to a reasoned judgment was violated since the reasoning submitted by the first instance court did not respond to the claims of the suspects and was not “sufficient and reasonable to such an extent and quality that satisfies the need for justice”.

By the same token, the Constitutional Court found that the first instance court, disregarding the amicus briefs and expert opinions obtained by the applicants and only examining the report requested by the prosecutor, has behaved in violation of the principle of equality of arms.

The applicants also stated that the first instance court had dismissed their requests to produce witness. The Constitutional Court stated that the decision to hear a witness falls in principle within the discretion of instance courts and the Constitutional Court could only conduct an investigation when there is a claim that the proceedings in its entirety was not fair and clearly arbitrary.

The parties should be able to support their claims with various evidences including witness testimonies in light of the principles of adversarial proceedings and equality of arms. It is understood from the present case and the judgment reasoning that the testimonies of the Turkish Land Forces Commander and the Chief of General Staff, who were to be presented as witnesses by the applicants, carried a significant importance for the outcome of the proceedings. Although it was stated in the first instance court judgment that these individuals, whom the applicants requested to produce as witness, prevented the crime subject of the proceedings, the reasoning stated as their testimonies would not affect the decision was found unreasonable. On the contrary, the Constitutional Court declared that this evidence should be “demonstrated in a public hearing and in the presence of the suspect”. On account of these circumstances, it was decided that the right to a reasoned judgment, the principles of equality of arms and adversarial proceedings and the right to obtain the attendance and examination of defence witnesses were violated.

C) Significance of the Judgement

This judgement is the first decision rendered by the Constitution Court regarding the fairness of the “Balyoz” proceedings which had occupied the agenda of the country for a long time. With this judgment, a greater degree of protection was provided for the right to a reasoned judgment and it is stated that it was not sufficient for the Court to answer the claims pro forma in the reasoning section as they should contain well-founded, logical and consistent explanations.