From the Presidency of the Constitutional Court:

GENERAL ASSEMBLY
DECISION
SELUK ZDEMR APPLIED

Application Number : 2016/49158

Decision date : 26/7/2017

President : Zht ARSLAN

Deputy chairman : Burhan STN

Deputy chairman : Engin YILDIRIM

membership : Serdar ZGLDR
Serruh KALEL
Osman Alifeyyaz PAKST
Recep KMRC Nuri NECPOLU
Hicabi DURSUN Celal Mumtaz AKINCI Muammer
TOPAL
M. Emin KUZ
Hasan Tahsin GKCAN
Kadir ZKAYA Rdvan GLE
Recai AKYEL
Yusuf evki HAKYEMEZ
Reporter : Aydn IMEK
applicant : Seluk ZDEMR

I. BA DEPARTURE
one. Application, investigations conducted after coup attempt
related to the alleged violation of the right to liberty and security of the person because the arrest warrant on a judge was not
legal .
II. APPLICATION PROCESS

2nd. The application was made on 26/9/2016.

3. The application was submitted to the Commission after the preliminary examination of
the application form and its annexes from the administrative side .

4. It has been decided that the admissibility examination of the consignee should be carried out by
the Department .
5. It has been decided by the Head of the Department to concurrently carry out the admissibility and
substantive examination of the application .
6. An example of the application documents was sent to the Ministry of Justice (Ministry) for
information . The Ministry has given its opinion.
7. The applicant submitted to the Constitutional Court statements against the opinion of the
Ministry .
8. In the meeting held on 20/7/2017 by the Second Section, the application was referred to the General
Assembly pursuant to the 28th article (3) of the Rules of Procedure of the Constitutional Court, as it was deemed
necessary for the General Assembly to qualify .

III. EVENT AND CASES

 9. The relevant events in the context of information and documents as expressed in the application form
and its annexes and through the National Judicial Network Information System (UYAP) are summarized as follows:
A. General Information
1. Impact Te network
10. In recent years, there has been a structuring in Turkey called Fetullah Terrorist Organization
(FETO) and / or Parallel State Constitution (PDY) in recent years (Aydn Yavuz et al. [ GK1, B. No : 2016/22169,
6/2017, 22).

11th. Feto / pdy'n to destroy evidence of crime in recent years regarding the organization and activities
of state institutions to listen and telephone of senior government officials, the state's intelligence activities to
decipher, not their members to obtain and advance questions related to login or dismiss promotion exams for
public office, and algebra manu did not attempt to prevent such actions by the Government to eliminate the use of
violence or task has been carried out on the basis of numerous investigations and prosecutions. One of the proposals
in these investigation and prosecution documents is the organization of the structure within judicial
institutions (Aydn Yavuz et al . , 27-30).

12. One of the many plaintiffs filed in the country in relation to the PTF / PDY was detained by
the Erzincan Assize Court on 16/6/2016 (E.2016 / 74). It was stated that in the order of the decision, the PTO / PDY
was organized in the Turkish Armed Forces (TSK), in particular the judiciary and security units, and went to a
different structure apart from the hierarchical structure of the state ; it is accepted that the structuring in this respect
is a weaponized organization of terror (Aydn Yavuz et al., 32).

13. On the other hand, the Supreme Council of Judges and Prosecutors (HSYK) has been subjected to
disciplinary investigations on the grounds that some members of the judiciary have committed irregularities in connection
with this structure (see Mustafa Baer and Metin zelik, B. No: 2015/7908, 20/1/2016, 38-43, Sleyman
Baryank et al., B. No: 2015/9756, 16/11/2016, SH 51-60).

14. Many of the judges and public prosecutors who have a widespread belief that they are in contact
with the PfP / PDY in the judicial system since the summer of 2014, the HSYK, "the chief prosecutor's office, the
commission chief, the heavy penal court presidency, the chief prosecutor's office, The Supreme Court of Appeals,
the inspectorate, the judge of inspection "and other tasks (again as judges and prosecutors). The Ministry has
removed many administrative tasks contained in the se years in administrative appointments of judges and prosecutors
for the same reason, these people are returned to their judicial duties.

2. After Impact Test

15. Turkey faced a coup attempt on July 15, 2016, where military personnel of various ranks and
duties participated and heavy use of heavy armed force (Aydin Yavuz et al., . 15-17). The public authorities
and the investigative authorities - based on their political background - assessed the presence of the PTO / PDY behind the
enterprise (Aydn Yavuz et al., Sho 23-25).

16. During and after the coup attempt an investigation was initiated by the Republican Chief Public
Prosecutors over many individuals linked to the FETET / PDY , including the members of the judiciary, who
were not linked to the coup attempt or directly connected with the coup attempt (the structure behind the fire) (Aydn
Yavuz and others, 51).
 17. In this context, the Ankara Chief Public Prosecutor initiated an inquiry for the first time about the
presence of three members of the judiciary , including the high court members, with the PTT / PDY; It was decided
by HSYK on 16/7/2016 that 2,745 judges and the public prosecutor who initiated the investigation on their rights
would be removed from duty. Most of these people have been consulted about the investigation into the arrest
and detention measures of implied (Aydin Yavuz et al., P. 350).

18. The number of members of the judiciary investigated as of 24/7/2017 within the scope of the
FETO / PDY investigations according to the Ministry's data is 4,664. 1.311 of these persons were forensic control
measures and 97 were released without any protection measures. Again, 251 members of the
judiciary investigated the rights of the arrest and detention of such a judicial process is not done. Among them,
the high court and in 2431 the right of members of the judiciary is well located arrest measures were applied. In
addition, 297 members of the judiciary were released after a period of arrest for their rights. judicial control
measures were applied to 274 of the evicted persons. On the other hand , there are 271 members of the judiciary who
are illegally fleeing and who have an order to arrest them in the investigation / prosecution offices, while the detention
process continues for 6 members of the judiciary .

19. On the other hand, in the process by the HSYK feto / PCM with the judiciary about the dismissal
of over 4,500 assessed where the interest suspension and dismissal decisions are given. In this context, the HSYK
General Assembly was held on 24/8/2016 at 2.847, on 31/8/2016 at 543, at 4/10/2016 on 66, on 15/11/2016 on 203,
on 13/2/2017 on 227, 17/3/2017 On 202, 3/4/2017 on 45, 5/5/2017, 107 judges and prosecutors decided to remove
from the profession . Some of these re-evaluation requests have been accepted by the HSYK General Assembly
and the decision to withdraw from the profession has been withdrawn.

20. The Supreme Court of Appeals' 16th Criminal Office, on 24/4/2017 (E.20 15/3, K.2017 / 3), with the
complaints about judges and prosecutors accused of being members of the PTO / PDY, two judge an armed terrorist
organization that decisions to arrest by police officers in the discharge (feto / PCM) first instance court on charges of
being members decided to sfatyla- mahlduniyet (for decision as to whether the arrested of the aforementioned
judges hi individual applications made by the alleged lack kuki is unacceptable because it is clearly
unsubstantiated see also Mustafa Baer and Metin zelik, 134-161). In the Supreme Court of Appeals decision, it
was stated that "there is a strict hierarchical bond between the founder, the administrators and the members , that
he observes the confidentiality , hides the difference between the apparent face and the true face and has sufficient
elements, tools and attitudes to achieve this purpose . the result of the environment of chaos created by the methods
is not to come to power but the result is that the Parliament and the gendarmerie organization, MIT (National
Intelligence Agency) to realize this aimthat the parliament, government and other auational institutions are to
come to power by using algebra violence with the Parallel State Constitution , organization) and as Chief of Staff
to authorize the use of force by members of the institution having ner bodies and the public through the use of
weapons against crime convenient purpose to kill, stretch many grave acts such as mutilation affixation
by "specifying feto / pdy'n concluded that an armed terrorist organization.

21. Erzurum in one of the cases seen in conjunction with D hand attempted coup 2nd High Criminal
Court (E.2016 / 216) two defendants issued on 01.05.2017 constitutional order of conviction provisions relating to
the offense to attempt to eliminate, judicial Itay 16th Criminal Chamber Goods from the date of
14.07.2017 (E.2017 / 1443, K.2017 / 4758) was upheld. In the Supreme Court decision "feto / PCM ... Republic of
the attributes specified in Aayasa, political, legal, social, secular and economic system, damaging the
indivisible integrity of the state with its country and the mill had to reduce Turkey States and the presence of
danger, to destroy the authority of the state and then conquer is a terrorist organization founded to destroy
the fundamental rights and freedoms and to disrupt the internal and external security of the State and the
public order.This organization has acted in action and consensus in order to realize its aims in line with the
ideology determined by the leader Fetullah Gulen until the 15th of July . or that it is a weaponized terrorist
organization ... in terms of the equipment contained in the disposal of its members . " . "The fact that the
attempt of the coup d'etat on July 15 was carried out by the members of the PTF / PDY who were basically
infiltrated into the TSK , the possibility that other elements of this initiative participated , of
enterprise this character will change "
has been assessed.

3. Regarding the Constitution of the PTT / PDY

22. Investigation and prosecution documents on the organization and activities of the institutions of
the PTO / PDY ( as well as the general characteristics of Aydn Yavuz et al., 26) , as well as declarations of members
of the judiciary , which are included in the precautionary / disciplinary decisions, claims and determinations based
on the following can be summarized as follows:

I. The conquest of the constitutional institutions of the state, then the state,
society and its members shape the new denomination in the direction of its own ideology and the oligarchic

with the aim of managing economics, social and political power with a cadre of characteristics; (student), who has
been educated in the light of the students, schools, dormitories and classrooms, and encouraged them to settle in the
judicial institutions as well as the TSK, the police and the civilian administrative units , which are considered
important in terms of state administration, and gave great importance to the staffing in the judiciary .

ii. FETET / PDY, the questions of entrance exams to the judges and the hunting profession have been
obtained and given to their members in advance with their answers, allowing them to enter the profession unfairly . Thus,
a large number of people who have contact with the structure have been involved in judicial proceedings as judges
and prosecutors .

iii. Feto / PCM; how and where the judges and prosecutors who belong to them will choose their wives
and how they will behave in their social lives and how they will fulfill their worship in their own pilgrimage and how
they will choose their wives from among whom they decide to do their duties and who they will choose as their place of
duty from their costumes , kuracaklann life of up to two suggestions for the design of each area and was found
in the instructions.

iv. Members of the judiciary affiliated with the PTO / PDY have tried to avoid knowing
the relationship with this structure by paying utmost attention to confidentiality at every stage of the profession
since the candidacy process ; in order to make it seem like they belong to different social groups. In this context, it
has been pointed out that many members of the judiciary who are in contact with the FATD / PDY are not affiliated
with each other in the social environment , that they worship in secret, they are in contradiction to their beliefs and
that they are members of the Judges and Prosecutors' Union (YARSAV) within a short period of time .

vi. Members of the judicial institutions of the FATD / PDY, who are attributed to him
holily , also have the understanding that everything, including homeland, state, nation, morality, law, fundamental
rights and freedoms, comes after it has been structured in value .

vi. Members of the judiciary who are in contact with the PTF / PDY are divided into groups
according to the degree of their loyalty to the structure . In addition , judges and prosecutors who are
members of the organization are organized according to their place of employment or the start of the
profession (period). Within this framework , meetings are held periodically within each judicial charter / unit and
regular meetings are held once a year for each cycle .

vii. Members of the judiciary who are affiliated with the PfP / PDY issue all of their first salaries, and
a significant portion of their next salary, as "himmet" .

viii. Members of the PTF / PDY communicate with their superiors (brother / sister or imam) by
learning the information they have about the judges and prosecutors who are not themselves and their
attitudes and evaluations .

ix. Fetullah Gulen's "Whether in our city or in the inhabitants , we should be able to work more
comfortably in the places where they are going, be clingy , become a governor, become a judge who appreciates an
ordinary judge," "

the judiciary members who are in contact with the FATD / PDY in accordance with the incentives and
instructions reflected in the words of "the students can make a career in the different fields, make a masters, or do
doctorate on the outside, may also be doing the judge" there have been some attempts at removal. in this context,
restructuring or members of judges and prosecutors, taking part in various boards, reference to each other, engage in
studies for the academic and language training, domestic and overseas training was directed to activities such as
participating in visits and meetings.

x. The members of the Ministry of the PTO / PDY and / or the HSYK inspectors wrote
positive evaluations to the records of the members of the judiciary who are interested in the structure - often in
case they do not deserve it; they have shown a protective attitude in their disciplinary reviews and / or
investigations. In contrast feto / PCM with the aimof inactivation of unrelated members of the judiciary have been
found negative assessment of the need -haksz tesinde- in one way or hang in olmu record and disciplinary
proceedings relating to such persons.

xi. Members of the judiciary connected with the PTO / PDY acted in particular in competent
courts ( operating up to close ) and in accordance with the instructions they received from the imams
in the judiciary , organized in the prosecutors' offices and in the interests of the organization . In this context ,
there are many van-imputes / PDYs that cause public debate such as emdinli, Ergenekon,
Sledgehammer, Military Espionage, Revolutionary Headquarters, Poyrazky, 'the objectives of the Armed Forces,
including the liquidation of dorultusunda- especially public officials in various public institutions and non-
members of the organization and the person he thought he acted contrary to the interests of the environment in
whichcivil organizations in different etkisizlet used to ira; Investigations of "December 17-25" and "MIT
trucks" have been put forward by the authorities and public authorities of the investigations / prosecution offices
for the purposes of the Government's departure .

xii. There is a "juridical imam" within the PDP / PDY, acting as a "juridical imam" of the
Constitution, which is directly contactable with Fetullah Gulen if necessary, and is selected among those who may
have a say in the judiciary . It is not possible to organize the provinces in the country, including all the ills of the
country .

xiii. The High Council was created in 2010 feto / take part in a major proportion in connection of
people with PCM and the Assembly chosen by the highest judicial members because of the people who bond with
the restructuring of a large part of feto / PCM, after this date, both on the administration of justice highest court in
has reached an important activity. Thus, the power in the judicial institutions of the structure became an element
of oppression on society together with the effectiveness in the law enforcement units. On the other hand, it is stated
that the members of the high judiciary who are in contact with the structure are voting in line with the instructions from
the superiors in the elections held within the institution .

xiv. Judges and prosecutors allegedly contacted the PTO / PDY expressed their intention to enter
the HSYK on 12/10/2014 as an independent candidate (without moving with another candidate). However, a large
number of judges and prosecutors, who were alleged to be affiliated with the PTO / PDY, wanted to allow these
persons to vote from other members of thejudiciary and made visits to judicial institutions and judicial offices
nationwide. Election activities of judges and prosecutors from members of the PTO / PDY

they generally performed their communication via "ByLock" during their work . It has also been stated that a
large number of judge candidates who are in contact with the PTO / PDY have applied to the Higher Election Board
(YSK) in accordance with the order to be able to vote at the election without the appointment. Choose im results are
analyzed when the -h on a voter's judicial one,choose to have the right to vote for five candidates for the
administrative court which declares that a specific system-election as an independent and or members to the
embodiment mentioned in legal circles regarding the of age in connection with this or pi ten candidates from the
judicial judiciary who were allegedly asserted, thousands of judges and prosecutors received votes in the bloc, and
two of them were elected as substitute members of the HSYK . The five candidates have received votes as a block
from the administrative court judge and they were selected from hundreds of actual membership from both the
HSYK.
xvi. Organized within the jurisdiction of all levels, the PTT / PDY has created a tutelage on the
judicial system with the help of thousands of members of the judiciary acting in line with the organization's
interests and in accordance with the instructions received from the imam .
B. Applicant Related Process
23. In 2007, the applicant began his career as a member of the Van Administrative Court ; In 2011, he
was appointed as a member of Bursa Administrative Court.
24. On the applicant's right , an investigation was initiated after the coup attempt by the
Ankara Chief Public Prosecutor's Office, arguing that he was involved in the hierarchical structuring of
the FETET / PDY armed terrorist organization .
25. It was decided that the Applicant should be removed from his position by decision
of HSYK Second Section on 10/8/2016 - who is serving as a member of Bursa 3rd Administrative Court .
26. The Bulgarian Chief Public Prosecutor's Office decided to search the applicant's home, work
place and vehicle on 11/8/2016 on the letter of the Ankara Public Prosecutor's Office to make inquiries
about removal from office with the decision of HSYK . the applicant was detained on the same day.

27. BA vuruc On 08/12/2016 has testified as a suspect at the Bursa Public Prosecutor. The
applicant rejected the charges in his statement and stated that he had no interest in the PfP / PDY. The applicant was
referred to the Bursa 4th Sulh Cez a Hakimli for his arrest on the same date .
28. Bursa 4. Peace Criminal
with the decision of 12/8/2016
the applicant was arrested on charges of membership in the armed terrorist organization . After having been
involved in some events that occurred during the attempted coup d'tat, it was referred to the suspicious
statements contained in the file concerning the crime and the applicant was removed from the duty by the
HSYK. It is seen that your judge has pointed out that there is concrete evidence of strong crime in this
framework . On the other hand, it is emphasized that the criminal charged with the applicant as the reason for
arrest is based on the fact that it is a catalog offense, and that the detention of the criminal in accordance with the
law and the criminal law prescribed in his law is measured and judicial control is insufficient. Finally, it has been
pointed out that the applicant is in danger of doing something that would harm the functioning of justice if released .

29. On 15/8/2016, the applicant appealed against the decision and the decision of 16/08/2016 of the Bursa
5th Sul h Penal Authority was finally decided to be rejected. The fact that the file contains concrete evidence of a
strong crime,

judicial control will be inadequate to ensure that the evidence is not yet fully collected , the nationwide attestation of
the attempted coup d'etat and the examination of the digital evidence are not yet completed, the salvation of the inquiry
is not clarified by all elements of the coup attempt , the blackout of the evidence is avoided and the suspicion of
escape is removed .
30. The applicant was notified on 1/9/2016.
31. The applicant was found on 26/9/2016 as an individual applicant.
32. The question of the Applicant is in the first paragraph of Article 93 of the Law of Judges and
Prosecutors No 2802 dated 24/2/1983 with Article 7 of the Decree Law on the Implementation of Certain
Regulations under the Extraordinary Scope of 6/1/2017 dated 2/1/2017 made "ffik and investigation and
prosecution authority to conduct about personal crimes prosecutors, provinces in the place where the regional
courts which is attached to the place where he served the relevant Cumhur uriyet prosecutor and belongs to the same
place heavy penal court." in accordance with the amendment to the Istanbul Chief Public Prosecutor's Office.

33. A public case was opened at the same place of the Heavy Penal Court with the request of the Istanbul
Chief Public Prosecutor's Office dated 30/5/2017 to punish the applicant for his fault that he committed a crime
of armed terrorist organization . The indictment included information on the organization of the judiciary, as well
as the general structure of the PTT / PDY .In this context, it has been seen that there is a reference to the facts in
some disciplinary files, which are also referred to in particular in the decision on dismissal from the NHSK . Some
of the facts and evidence on which the public prosecutor bases the applicant's pretext to be a member of the PTT /
PDY can be summarized as follows:

I. The Istanbul Security Directorate stated in the letter dated 31/1/2017 that the applicant
was found to be a "ByLock" user. Accordingly, the Applicant first used the named program on 16/8/2014.

ii. In 2010, the applicant became a member of YARSAV.

iii. The suspect , who had been accused of being a member of the Ankara Public Prosecutor's Office
under another investigation and accused of being a member of the PTO / PDY and who was himself a member of the
judiciary , stated that the "applicant's" service movements " participated in a circuit board meetings in the year" d that
the applicant was among those who participated in the stage camp ".

iv. The applicant's complaints that the applicant had been collected twice with the members of the
"congregation" in the applicant's home at the applicant's home , the suspect , who was accused of being a member of
the PTO / PDY and who was also a member of the judiciary and who was taken under another investigation by the
Trabzon Public Prosecutor's Office , 10 dues "to the applicant.

vi. Kahramanmara Chief Public Prosecutor's Office in another investigation taken within the scope
of the accused of being a member of the PTO / PDY and the suspect is a member of the suspect himself . On
28/10/2016, "HSYK family member, who came to this meeting, visited all the friends they had known
for their HSYK elections (to ask for a vote) and said that they were the applicants of the semesters they met in a
house in Ankara before the HSYK elections in 2014 that he wants to do so ".

vi. Sivas, Osmaniye and Trabzon Some of the suspects whose statements were taken by the Chief
Public Prosecutor's Office and accused of being members of the PTO / PDY were in the statements "that the applicant
was a member of the congregation".

34. The Istanbul 28th High Criminal Court decided to accept the indictment on 9/6/2017 , thus
proceeding with the prosecution phase on file E.2017 / 22 . On 12/6/2017, the Court conducted an examination of the
preparations and made some interim decisions for the collection of evidence on the merits of the case.

35. The first hearing was held on 11/7/2017 in the case of the applicant's trial . It seems that the defense
of the applicant has been taken. Applicant defense in itself does not accept the charges be attributed to the insufficient
evidence relating to the charges on the indictment that show, "bylock" of using the application, or whether the question
of the installation of mobile phone communication listening and the need to act in accordance with the necessary
legal provisions for the registration, the source of certain olmu ayan the evidence stated that it can not be taken as
basis for the accusation . The Applicant also has detailed records of the service providers of the application
in relation to the "ByLock" program ; forming program, downloaded and whichare not detected by using the
sub-data information, which program download the information and the availability of these pirates interfere
with the user; it appears that the petitioner requested that a specialist expert report be obtained on the subject of where
the raw data were, where it was located, whether the integrity of the data was collected during the collection of this data ,
whether or not the procedure was followed, whether the IP number used was being used by another person or not.

36. The case is lodged at the first instance court as of the date on which the individual
application was examined and the detention of the applicant is still ongoing.

37. On the other hand, among which HCJP General Assembly in the Applicant on 08.31.2016 543 judges
and prosecutor uyarnc Article 3, Article 667 has decided to remove the profession. Said decision "regarding
that began with the occupation of acceptance, training center and activities in Turkey Justice Academy, in-
service training and the participation of foreign language training, be sent abroad, specially authorized prosecutor with the
court or to or information on atannalar administrative tasks in this assignment and still used as a weapon special as
a judge or entitled to a competent court s, Internal Audit Department to the president, in his capacity as vice-
chairman or inspectors, examining judge to administrative agencies, department head or deputy generalmanager or
vice assignments taken into account when the criteria in the form vs. capacity, information and documents in
the personnel file, sharing of social media accounts , complaints, denunciations, investigations and
investigations filed with the Supreme Council of Judges and Prosecutors about these matters
and the decisions made on these files , clerks, judges and public prosecutors who are involved in the
files related to the terrorist organization of the PTT / PDY terrorist organization and the decisions they made
in these files, the records containing the encrypted programs used by the members of the organization for
communication , the General Directorate of Security of the Higher Judges and Prosecutors counterterrorism units
of discipline are appointed for fixed that members of the organization with organized reports, penalties and
dissenting opinion, with socio s environmental information and information obtained from Ankara Chief
Public Prosecutor documents, concerned about Ankara Chief Public Prosecutor of the nature of the investigation
against him and alleged that the charges with the arrest and detention decisions, soruturma kapsam nda
ifidelerine bavurulan hkim ve Cumhuriyet savclarnn ifade ve sorgu tutanaklar, itiraflarm beyanlar" gereke
gsterilerek bavurucunun da aralarnda olduu bu savclann judges and feto / PCM with that of the junction and
contacts are given an assessment that fixed interest.

The applicant requested the re-examination of the decision by the HSYK General Assembly was emphatically
rejected on 29/11/2016.
IV. APPLICABLE LAW
38. 4/12/2 004 dated 5271 Law "Arresting Causes" edge entitled 100. The relevant part of which reads
as follows:
"(1) concrete evidence and indicate the presence of suspicion of crime only if there is grounds for
arrest, the suspect or the accused about the arrest warrant can be given. The importance of the work,
given the expected punishment or , in the absence restrained by security measures, the arrest can not be
decided.
(2) a reason for arrest in the following cases are considered:
a) The escape of the suspect or the accused will flee or hide 'if concrete facts arouse suspicion.

b) Suspect or the accused's behavior;

one. destroy evidence, hide or change,

2nd. Tan two victims in an attempt to apply pressure on others or not,
If creating a strong suspicion in the matter.
(3) If the commitment is strong suspicion of the presence of the following crimes, reason for arrest
include:
a) dated 26.9.2004 and numbered 5237 in the Turkish Penal Code;

11. Constitutional Order and the functioning of this layout Crime (article 309, 310, 311, 312, 313, 314,
315),

39. Law No. 5271 "Arresting decision" edge 101 titled material (1) and (2) num interval fkral
were as follows:
"(1) the suspect arrested in the Republic during the investigation phase on the claims of prosecutors
by the magistrate penalties, prosecution in the request of the defendant's arrest to the public prosecutor or
ex officio court decision is given. This is not necessarily grounds indicated in the claims and
legal indicating that inadequate control practices legal and the actual cause of place It is given.
(2) arresting, kept ukl continuation or a drain disclosure in this regard in the decision to reject the
request;

a) Strong suspicion of crime,

b) The existence of the reason for arrest,

c) Arrest of measures that restrained,

showing evidence clearly indicated reasons stated in concrete cases. The content of the decision is
notified orally suspect or the accused, as well as a sample given to them by post and this fact is stated in the
decision. "
40 dated 26/9/2004 and the 5237 Turkish Penal Code "armed organization" edge titled Article 314 of
the (1) and (2) the clause is as follows:

"(1) The crimes in fourth and fifth part of this section in order to commit, establishing an armed
organization or person who, ten years to fifteen years of imprisonment inflicted with.
(2) First for those organizations identified in AA iii Catering, given a prison sentence of up to five to
ten years. "
41. 12/4/1991 and 3713 Counterterrorism Law "Terror definition" edge entitled Article 1 are as follows:
 "Terrorism by using force and violence, pressure, intimidation, year is fo rms, digestion with one or
threat method, the Republic enshrined in the Constitution qualifications, political, legal" sosyal,
secular and economic order, the state with its territory and nation, damaging the indivisible integrity of
the Turkish State and Republic endangering the existence of state authority and its weaknesses to
defeat or destroying or seizing, fundamental rights and freedoms, the state internal and external
security, public order, or of public health in order to disrupt members of the person or organization to
be undertaken by people who are actions that constitute any crime. "

42 3713 the Law "terrorist criminals" edge titled Article 2 are as follows:
"To achieve the objectives set out in Article fibers formed is a member of the organization, these objectives
do rultu along with others or alone delinquent or intended crime-till, even if the organization is a person
terrorist offenders who are followers.
It commits a crime on behalf of a terrorist organization without belonging to a terrorist organization, is
also guilty of the count. "
43 3713 the Law "terrorist offenses" edges of Article 3 is as follows:
"Dated 26/9/2004 and No. 5237 of the Turkish Penal Code 302, 307, 309, 311, 312, 313, 314, 315 and
320 with Article 310 of the UNCT article first written in paragraph offenses, terrorism offenses Download."
44. 3713 count III of the Law "punish Increasing" edge Chapter 5, the first sentence of the first
paragraph of the article is as follows:
"Article 3 and 4 of the relevant written about those who commit crimes will be determined
according to prison laws penalties or criminal fines half the rate in artnlarak shall be imposed."
V. REVIEW AND RATIONALE
45. The Court examined the application should be made at the meeting on 07.26.2017 was considered:
A. The applicant's allegations and the Department's Opinion
46. The applicant, with the coup attempt took place on 15 July 2016 and that there is an interest in the coup
attempt soldier, feto / PCM also bond with whether the file without any evidence for that commit crimes only HSYK to
the expulsion dismissal issued by the Ankara Republic Prosecutor General's based on the s writing he was
arrested, in the event of strong suspicion of crime

there has been no dismissal of judges and prosecutors after the coup attempt , although those removed and
arrested those of his escape and that the task remained at the beginning of the continuation months, even when she
learned she dismissed removed it expects the house from officials to make the escape and that the search of the passport is
not, never go abroad, suspected escape this regard there has been no arrest warrant against him in the customization done,
arrest is unconscionable, judicial removed from the dismissal of members of the judiciary itself, such as applying
control measures, noting that 19 of the Constitution, who released substance guaranteed the right to liberty and
security of person of inspiration have been violated asserted; drain and has demanded compensation.
47 in the Ministry of opinion, the Constitutional Court and the European Human Rights Court (ECHR) similar
land for detention that run on reminded committed crimes on suspicion of a person to the offense's about to be
deprived of their liberty committed by the direction of reasonable doubt or need to have credible r easons stated.
Accordingly, the existence of reasonable doubt to obtain the evidence in the case-concrete outsider to consider
alndnda- events and conditions that will convince an objective observer must be completely sufficient. On the
other hand instantly detention or custody in a criminal charge, while a person located in the interior of adequate
evidence obtained condition is not required.

48 primarily judicial institutions According to the Ministry, law enforcement agencies and Armed Forces to
be for all the members of the public institutions and organizations have placed under legal view that feto / PCM, so
is a peculiar terrorist organization previously unseen same time, the unions of the media, educational institutions from
the financial sector up Madiran forming a parallel structure in all areas of their organizations. Feto / PCM member and then
into gibi- judgment -all the institutions where public institutions insidious infiltrate formed as a parallel judicial
power.
49. Ministry, said the organization's -Stroke attempt by birlikte- national security in terms of form as
to upright the size of the concrete danger when t feto / PCM member of the ken of those detained and strong
regarding the arrest of that doubt, the HSYK decision was related to dismissal from the profession in this
context assessments are adequate for the arrest of the applicant are taken into account crime is said that the doubts. On
the other hand, the applicant feto / PCM members they provide the communication between them "Bylock" program
the user is determined to be. Again, applicant feto / PCM definitions of one active in that there are the beyanl.
According to the ministry as a result of the applicant claims are manifestly ill-founded.
50. Applicant; The Ministry views the statement in the opinion of the Ministry against strong criminal cases
referred to doubt the complaint that arrested without d that orula, in the opinion of the Ministry of the concrete
evidence about his not mentioned, whether the arrest of some of the dismissed banned person or even that it is
returning to the profession of these people, so strong offense of this decision can not be the basis for suspicion, in
the opinion of the Ministry stated "bylock" is that serious about using the application and the accuracy of the information
relating to this program has been claimed that doubts.
B. Evaluation
51 of the Constitution, "Fundamental Rights and Freedom limiting melted" edges entitled Article 13 is as
follows:

"Fundamental rights and freedoms, their essence only due to reasons mentioned in the Constitution
related substances, and only limited by law. These limits of the Constitution, in word and spirit of
the democratic order of society and the requirements of the secular republic and proportionality can not be
contrary to the principle."
52 of the Constitution, "stopping the exercise of fundamental rights and freedoms" edge titled 15 . which reads
as follows:
"War, mobilization, martial law or state of emergency, international provided that no violation of law
obligations on the situation deserves extent are thienyl required and the use of freedom partially or may not
be completely stopped, or they can be taken for measures against the guarantees provided for in the Constitution.
In cases specified in paragraph elephants appropriate legal battle that occurred as a result of deaths outside
the person's right to life, physical and spiritual presence dokunulanaz the integrity of the n; one religion,
conscience, can not be compelled to reveal his thoughts and convictions because of them; crime and punishment in
the past can not be executed; guilt is proven by a court order until someone considered guilty. "
53 of the Constitution "Personal freedom and security" on the edges of Article 19 titled first sentence of the
third paragraph by paragraph reads as follows:
"Everyone has the right to liberty and security of person.

Persons with symptoms strongly about Suluhg, but their escape, the evidence in order to prevent the
destruction or alteration or mandating the tutuklana as shown in these and other cases the law can be arrested
by decision of a judge. "
54. The applicant's claim of constitutional guarantees in article 19 of the scope of the right to personal
freedom and security must be taken investigated.
1. Regarding the Applicability
55. The Constitutional Court Aydn Yavuz and others in the decision, outstanding management procedures of
individual applications relating to measures taken during the period applied when reviewing the Constitution, fundamental
rights laid down in Article 15 and on freedom has indicated that it will consider the assurance regime. Accordingly, an
exceptional case finding and fundamental rights subject to the individual application as well as the promulgation of this
and Ozge In case of a connection with rlk interventions constituting the measure extraordinary situation examination of
the Constitution shall be made in accordance with Article 15 (Aydn Yavuz et al, pp 187-191).
56. After the coup attempt occurred on July 15, 2016 President's I chaired the Council of Ministers
on 21.07.2016 decided the declaration of a state of emergency; then the state of emergency, four kez is extended by
months. Why the state of emergency declared at the beginning of the coup attempt comes (Aydn Yavuz and others,
224, 226). Blow with the state of emergency declared in danger, as well as arising from undertakings that are
behind this attempt assessed feto / the PD resulting from threats and hazards of disposal is seen as intended (Aydn Yavuz
and others, 48, 222, 229). Indeed blow

Behind the restructuring of enterprises Feton / PCM is that for the public authorities and the investigation of
implied factual basis for the assessment is based on (and others Aydn Yavuz, S. 216).
57 on the date of the applicant's arrest in Turkey, emergency rule is in force procedure. Investigation of
implied applicant coup attempt against the applicant, although claiming to have committed an offense
under and accusations that are subject to detention measures, the applicant behind the coup attempt indicated that
restructuring feto / PCM member is alleged to be (see. 24, 33). The investigation authorities and the judicial
authorities, the embodiment referred to on the basis of concrete facts armed considers that it is a terrorist
organization (see. 11-12, 20-21). Thus, the applicant's allegations that the state of emergency basis for the
arrest of the ad seems to be related to events which makes it necessary.

58. Keep imposed on the applicant in this regard the explanations legal measures to examine whether there
shall be made under Article 15 of the Constitution. This investigation primarily during the first constitution of the
arrest of the applicant 13 and 19 located to secure other substances including substances contrary is excessive to
be determined whether or not; If it is found in the Constitution, Article 15 ayknlk if the evaluation criteria would not
make this contradiction legitimized (Aydn Yavuz and others, murine myeloma cells 193-195, 242).

2nd. General Principles

59 of the Constitution in the first paragraph of Article I of Article 19, everyone's personal liberty, and the
second and third after put forward as the principle that the right to security in the paragraph on freedom of the person,
provided that shown in Figure and conditions of the law situations to be deprived were counted as limited. Thus personal
freedom and Restriction safety but under Constitution of said agent may be in the presence of any of said given
state (Murata Narman , B. No: 2012/1137, 07.02.2013, 42).
60. interference with the right to personal freedom and security, fundamental rights and setting out the
criteria for limiting the usual period of freedom 13 of the Constitution unless the fulfillment of the conditions
specified in Article of the Constitution would constitute a violation of Article 19. Thi s is why the
restriction Anayasa'mn specified and falling under Article 13 measures appropriate to the nature of arrest; law by
item Prospec ted to the Constitution, Article 19 of the third paragraph of specified based on the right of one or more
causes and to be contrary to the principle of proportionality must be determined whether suitable conditions (Halas
Leo, B. No: 2014/4994, 16/02/2017, 53 , 54; Aydn Yavuz, et al, pp 246, 226).
61. Constitutional materials 13 and 19 as a legal basis arrest accordance interference with personal freedom
is obligatory (Murata Narman 43; Halas Leo, 55).
62 of the Constitution in the third paragraph of Article I of Article 19, about the guilt strong indications
that the persons who barely escape their evidence, destroy or in order to prevent users from changing or arrests like
these that makes mandatory and in other cases specified by the law are expressed can arrest the judge karanyl (Halas
Leo, S. 57) . According to the arrest but "people who are strong indications of guilt about" possible terms. Ie the arrest
in a legitimate prerequisite for lack of purpose, people's fault strong indications about the Lea gal

There is. This matter is an indispensable element measures sought for arrest. The blame for it must be supported by
credible evidence that can be considered strong. The nature of the facts and information that can be considered
convincing evidence in the present case largely depends on the specific circumstances (Mustafa Ali Balbay, B. No:
2012/1272, 12/04/2013,
72).
63 in the presence of a strong initial arrest suspected crime to be revealed together with all the evidence
may not always be possible. Of a holding aim of confirming suspicions about people or refute by the
criminal investigation and / or to advance the prosecution (Dursun Cicek, B. No: 2012/1108, 16.07.2014, S. 87; Halas
Leo, 76). Therefore immediate arrest or detention to have collected sufficient evidence is not necessarily required.
Criminal charge and therefore water would be fine with arrest essential facts constituting the grounds for the suspicion ,
which will be discussed in the later stages of the proceedings and convictions on grounds Create proven cases it
should not be considered at the same level (Mustafa Ali Balbay,
73).
64. Also in the third paragraph of the Constitution, Article 19 of the arrest "escape" or "destruction or
modification of evidence" to prevent and suggested to be issued. Constituent, as regards the causes arrest "arrest as
they mandating and other cases in that in the law" to the phrase by giving place limited to those defined in the
Constitution of cause and arrest mentioned that both a reason for imprisonment outside thereof but by law possible
Kilmer regulation is the work (Halas Leo , 58).
65 in the 5271 law 100th regulation of the arrests caused the substance, of people but the strong
suspicion that they committed an offense in law if the presence of the cases indicating the presence of and
a reason for arrest tutuklanab the after mentioned line will be grounds for arrest were counted. According to the
suspect or the accused to escape, hiding, or arouse the suspicion of the few concrete cases where there is; The behavior
of the suspect or the accused will destroy evidence, hide, or change; witness, victim or attempting to apply pressure on
others in creating a strong suspicion still in detention matters can be given decision. Whether the material is also
provided strong suspicion has processed arrest net is a list relating to offenses assumed that n (Ramazan Aras, B. No:
2012/239, 07.02.2013, S. 46; Halas Leo, 59).
 66. Constitution 13. The material for the basic rights and freedoms further restrictions "proportionality" be not
contradict the principle that has yed. The Constitution's 19th place in the third paragraph of the article "arrest
mandating" with the phrase also is noted that the arrest should be restrained. It said constitutional provisions
parallel to Article 100 of Law No. 5,271; importance of the job is not proportional with the expected penalty if
granting or arrest safety measure is expressed not is decided (Halas Leo, 72).
67. in Article 13 of the Constitution of the area "proportionality" to observe the principle is primarily the
task of the judicial authorities implementing the measures arrest. Therefore, a measured arrests of measures
implemented under criminal investigation or prosecution whether the first decision concerning the
detention determined through the grounds of purification can be(Murat Narman, 62). In the grounds of the
decision on detention, the prerequisite for the arrest of the "people's guilt about where strong signs", the also "reasons
of arrest" should be introduced to the n t is. This issue arrest