Violation Of The Presumption Of Innocence Due To Taking An Executed Offence As A Basis For The Evaluation Of The Conviction Of Another Crime Committed Later
Events
The applicant was sentenced to imprisonment for being a member of a terrorist organisation before the date of the incident subject to the application, entered the penal institution on 25/6/2009 and was conditionally released on 26/2/2014.
The Chief Public Prosecutor’s Office determined that the applicant participated in a meeting and demonstration march organised upon the call of the terrorist organisation to commemorate the death anniversaries of members of the terrorist organisation and distributed some of the pennants with the picture of the ringleader of the terrorist organisation to the participants of the meeting and initiated an investigation against the applicant on the grounds that the said acts constituted the crime of committing a crime on behalf of the terrorist organisation without being a member of the terrorist organisation.
Applicant was referred to the criminal judgeship of peace for arrest for the same offence, but the criminal judgeship of peace rejected the request for arrest and ruled for judicial control measures. Upon the public prosecutor’s objection to this decision, the same criminal judgeship of peace decided on 23/1/2015 to lift its previous decision and to issue an arrest warrant for the applicant’s arrest, whereupon the applicant was arrested and arrested on 24/1/2015.
In the public trial, the heavy criminal court sentenced the applicant to 1 year and 8 months imprisonment on the charge of making propaganda for a terrorist organisation and 5 years imprisonment on the charge of committing a crime on behalf of a terrorist organisation without being a member of a terrorist organisation. Upon the applicant’s appeal, the Court of Cassation overturned the conviction on the grounds that the applicant’s right to defence had been restricted.
In the trial held after the reversal, the Court of Cassation sentenced the applicant to 6 years and 3 months imprisonment for membership of a terrorist organisation and the continuation of his detention with the sentence. Upon appeal, the Court of Cassation corrected the sentence of the applicant to 5 years and upheld the judgement of the court of first instance. The Court of Cassation stated that it was possible to convict the applicant for the crime of making propaganda for a terrorist organisation within the statute of limitations, but the applicant did not submit any information or documents to the Constitutional Court regarding the crime of making propaganda for a terrorist organisation.
Allegations
The applicant claimed that the presumption of innocence had been violated as an offence committed on a previous date and the sentence of which had been executed had been taken as a basis for consideration in the conviction of another offence committed later.
The Court’s Assessment
In the concrete case, the court of first instance, prior to the Court of Cassation’s reversal judgement, considered that the applicant’s actions at the meeting he attended constituted the offence of committing a crime on behalf of a terrorist organisation without being a member of the organisation and did not mention his previous conviction in its decision. On the other hand, both in the reversal judgement of the Court of Cassation and in the decision of the court of first instance after the reversal judgement, it has been observed that the Court of First Instance relied on the ground that the applicant committed the act subject to the application after his conditional release from the penal institution where he was previously convicted for the crime of membership of a terrorist organisation.
As a matter of fact, upon the Court of Cassation’s reversal judgment, in which the Court of Cassation emphasised that the applicant had contacted the armed terrorist organisation again after his conditional release, the court of first instance concluded that the applicant was a member of a terrorist organisation this time on the grounds in the Court of Cassation’s reversal judgment. Thus, the court of first instance considered not only the applicant’s attendance at a meeting, which was deemed to have become illegal, but also the fact that the applicant had previously been convicted of membership of a terrorist organisation as evidence in the conviction. In short, the courts of first instance reached the conclusion that the necessary elements for the applicant to be punished for being a member of a terrorist organisation were established by relying on the previous conviction.
With this practice of the first instance court, the burden of proof did not remain with the prosecution; it was transferred to the applicant. The court’s approach will lead to the result that persons who have a final conviction for being a member of a terrorist organisation will be punished for being a member of a terrorist organisation again and automatically by evaluating their new acts together with their previous acts, regardless of whether they constitute a crime or not.
It is incompatible with the presumption of innocence for the courts of first instance to accept that the applicant re-established contact with the terrorist organisation due to the fact that the act subject to the application was committed by the applicant after his conditional release from the penal institution where he was previously convicted for the crime of being a member of a terrorist organisation and therefore to punish him for the crime of being a member of a terrorist organisation.
For the reasons explained above, the Constitutional Court decided that the presumption of innocence was violated.
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