Secret Witness Decision from the Constitutional Court

Details of the Regulation

The applicant is a police officer who was dismissed from public service by a Decree-Law (KHK) on the grounds of having an affiliation or connection with FETÖ/PDY. He claimed that his dismissal without a finalized criminal court judgment against him violated his right to respect for private life, the presumption of innocence, and the right to a trial within a reasonable time. Despite the applicant's objections, the OHAL Commission and administrative courts rejected the application based on codings in the 'Garson' digital data, such as EA (persons who are within FETÖ and say 'The organization is my organization,' but have certain weaknesses) and ETÜD: 2015/1 (religious conversation meeting). However, there was a prosecution decision of "no grounds for prosecution" regarding the applicant issued by a prosecutor's office, which stated that no evidence showing ByLock usage, suspicious transactions at Bank Asya, or any other connection with FETÖ was detected. Furthermore, dissenting members in the administrative courts emphasized that coding data alone should not be considered evidence. The Constitutional Court found the claim of violation of the right to a trial within a reasonable time inadmissible due to the non-exhaustion of the Compensation Commission remedy, and found the claim of violation of the presumption of innocence manifestly ill-founded on the grounds that administrative acts do not carry a criminal nature and the courts did not make a determination of criminal liability. However, in the examination regarding the right to respect for private life, it rendered a decision of violation on the grounds that administrative and judicial authorities failed to evaluate the coding data indicating the applicant's connection with the organization in a holistic manner together with concrete events, facts, essential claims, and evidence that could be considered for and against the person, relying instead solely on coding data.