No Violation Of The Principle Of Legality Of Crimes And Punishments Due To Being A Member Of A Structure Known To Have Become A Terrorist Organization
Events
The applicant was dismissed from public office with the Decree Law No. 670 on the Measures to be Taken within the Scope of the State of Emergency (Decree Law No. 670) while he was working as a police chief. An investigation was initiated against the applicant, considering that he was in contact with the Fetullah Terrorist Organization/Parallel State Structure (FETÖ/PDY).
In the indictment prepared by the Chief Public Prosecutor’s Office (the Chief Public Prosecutor’s Office), it was stated in two separate reports submitted by the Department of Anti-Smuggling and Organized Crime of the General Directorate of Security that the applicant used the ByLock communication program on two GSM lines registered in his name.
The Chief Public Prosecutor’s Office concluded that the applicant was a member of FETÖ/PDY due to his ByLock record, the nature of the denunciation against him and the fact that he had been dismissed from public service, and opened a public case before the 1st Assize Court (the Court), concluding that the applicant had committed the crime of being a member of an armed terrorist organization. At the end of the trial, the Court sentenced the applicant to 7 years and 6 months imprisonment for being a member of an armed terrorist organization.
The applicant’s appeal against the decision on the continuation of his detention was rejected by the 2nd Assize Court and his appeal against the aforementioned decision was rejected by the Regional Court of Appeal. Upon appeal, the Court of Cassation upheld the verdict.
Allegations
The applicant argued that the principle of legality of crimes and punishments was violated as the judicial interpretations regarding the crime of membership of a terrorist organization were not foreseeable and the conviction was based on some acts that did not constitute a crime.
The Court’s Assessment
Pursuant to the principle of legality of crimes and punishments set forth in Article 38 of the Constitution, the acts prohibited and the punishments to be imposed for these prohibited acts must be specified in the law in a manner that leaves no room for any doubt, and the rule must be clear, comprehensible and have clear boundaries. This principle, which is based on the idea that persons should know the prohibited acts in advance, aims to secure fundamental rights and freedoms.
However, no matter how clear and comprehensible they are, rules prescribing crimes and punishments may require interpretation by judicial bodies. However, the interpretation to be made by the judicial bodies must not contradict the essence of the rule and must be foreseeable. Especially in terms of terrorism offenses, it should not be ignored that there is no universal definition of terrorism or terrorism accepted by everyone. However, this situation should not be interpreted in such a way as to prevent the provision of guarantees within the scope of the principle of legality of crimes and punishments regulated under Article 38 of the Constitution when it comes to the prosecution and punishment of terrorism offenses.
Judicial bodies should not adopt an unpredictable approach that renders the principle of the legality of crimes and punishments meaningless when evaluating the facts of crime or punishment for all crimes, including terrorism offenses, and in particular when determining whether the acts correspond to a crime.
Under Turkish law, a structure can only be designated as a terrorist organization by a judicial decision. The assessments made by investigative and judicial authorities that FETÖ/PDY is an armed terrorist organization have not only been the subject of investigations and prosecutions initiated during and after the coup attempt.
Investigations were also conducted by judicial authorities against individuals who were considered to be members of FETÖ/PDY and to have committed crimes within the scope of the activities of this organization before the coup attempt. Some of these investigations and prosecutions have also been the subject of individual applications.
In the period when the judicial bodies have not yet made a decision on the determination of FETÖ/PDY as a terrorist organization or the said decisions have not been finalized, this does not mean that the organizational acts of the members of the said organization will not constitute a crime. A criminal organization may be an illegal structure established to commit crimes from the beginning, or it is possible for a non-governmental organization operating legally to turn into a criminal organization or even a terrorist organization.
In this context, although the determination of whether a pre-existing organization, the existence of which is unknown to the public due to the lack of a verdict, is a terrorist organization depends on the decision to be taken by the courts, the founder, executives or members of the organization will be responsible in terms of criminal law from the date of its establishment or from the moment it was established for legitimate purposes and later turned into a criminal organization.
In many judicial decisions, the judicial bodies have acknowledged that FETÖ/PDY is a terrorist organization that aims to take over the constitutional institutions of the state, to reshape the state, society and individuals in line with its ideology and to manage the economy, social and political power through a group with oligarchic characteristics, and that it is a terrorist organization organized in parallel with the existing administrative system in this direction and that this organization was the organization behind the coup attempt on 15 July 2016.
However, the judicial bodies, in cases where individuals claim that they did not know that the formation or organization they allegedly belonged to was a terrorist organization, firstly state that the crime of membership to an armed terrorist organization can be committed with direct intent and examine whether it is possible to evaluate these individuals in accordance with the error provisions regulated in Article 30 of the Law No. 5237.
In this examination, it is seen that facts such as the position of the persons within the structure defined as a terrorist organization, the nature of the acts subject to the crime, and whether the real purpose of this organization and its activities related to terrorism were known during the period in which they were committed are taken into consideration. In this context, in trials related to FETÖ/PDY, the courts, especially the Court of Cassation, take into account the fact that the organization -without knowing its illegal aspects- has developed, institutionalized and supported its activities in the social and economic fields in determining criminal responsibility.
Within this framework, the Constitutional Court has also evaluated the claims that the right to personal liberty and security has been violated due to the unlawfulness of the arrest in some individual application files regarding FETÖ/PDY investigations and prosecutions.
In the concrete case, the applicant also complained that he was convicted on the basis of acts such as depositing money in a bank, sending his child to school, being a member of an association, attending peaceful meetings/conversations. When the conviction decision on the applicant is examined, it is understood that the conviction was based on the use of the ByLock program, not on these acts alleged by the applicant.
The Court convicted the applicant for membership of an illegal organization, not for using ByLock. The Court accepted the applicant’s use of ByLock as evidence that he had committed the crime of membership of an illegal organization. Constitutional Court has also previously examined the allegations that ByLock data was obtained without a legal basis or unlawfully and that ByLock cannot be used as the sole or decisive evidence in the conviction decision and did not find a violation of the right to a fair trial.
The judicial authorities made the necessary investigations, examinations and assessments as to the authenticity or reliability of the digital materials related to ByLock. The data submitted to the judicial authorities were analyzed and interpreted by technical units. Defense also had the opportunity – in accordance with the principles of equality of arms and adversarial proceedings – to challenge the authenticity and use of the evidence that the applicant was a ByLock user.
Regarding the existence of FETÖ/PDY, the Court examined the organization’s purpose, its action plan and whether it resorted to violence in pursuing this plan. According to the Court, in order to constitute the crime of membership of an armed terrorist organization, there must be an organic bond with the organization and, as a rule, there must be actions and activities that require continuity, diversity and intensity.
After evaluating all the features of the ByLock program and its differences from common applications, the Court concluded that this program has been exclusively available for the use of FETÖ/PDY members since its first use in early 2014, and that the members of the organization have been using this program from the first moment in order to hide themselves and ensure organizational communication. Therefore, the Court concluded that the applicant’s activity of using the ByLock program was of an organizational nature and involved diversity, intensity and continuity.
The Court concluded that the applicant used the ByLock program, which was made available to FETÖ/PDY members in order to ensure intra-organizational communication, for organizational purposes; therefore, the Court concluded that the applicant was aware that this organization aimed to commit crimes and disregarded his defenses. It is understood that these interpretations of the Court do not expand the scope of the act that the legislator has determined as prohibited in a manner contrary to the principle of legality of crimes and punishments, do not contradict the essence of the rule on membership of the organization and are foreseeable.
While clarifying the elements of the imputed offense, the Court took care to be foreseeable and appropriate to the nature of the offense. Therefore, the conclusion that the applicant was in a position to know that this organization intended to commit a crime and that he was in a position to know the elements of the crime of membership of an illegal organization due to his use of the ByLock program for this purpose is not unfounded.
For the reasons explained above, the Constitutional Court held that the principle of legality of crimes and punishments was not violated.
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