Events
In 2011, the Ankara Chief Public Prosecutor’s Office launched an investigation against the applicants, who are retired military officers, for their actions during the February 28 period. In these investigations, publicly known as the 28 February investigation, an indictment was issued with the demand that the applicants be punished. As a result of the trials held at the High Criminal Court, the applicants were convicted on the grounds that they had committed the offense of forcibly suspending from office or forcibly obstructing or suspending from office the Council of Executive Deputies of the Republic of Turkey, as defined in Article 147 of the abrogated Law No. 765. The Applicants’ appeal against that judgment was rejected on the merits. The applicants appealed against this decision and requested that it be overturned. Court of Cassation, which examined the appeal, dismissed the applicants’ appeal on the merits and upheld the conviction.
Allegations
The applicants argued that the principle of legality in crime and punishment was violated due to being punished for an act that did not constitute a crime, and the right to a fair trial was violated due to the use of evidence obtained in violation of the law as a basis for a criminal conviction, the guarantee of a judge of law due to the lack of a trial at the Court of Cassation, and the principle of not being tried and sentenced more than once for the same act.
The Court’s Assessment
A. Allegation of Violation of the Principle of Legality in Crime and Punishment
The court panel declared that it did not credit the defenses of the defendants that their actions were not consequential and did not involve force and violence, and that the Government resigned voluntarily. However, it was accepted that the crime was not at the incomplete or complete attempt stage, and that it was completed with the occurrence of the damaging result. Furthermore, the defenses of the defendant’s defense counsel that the completed crime is not regulated as a crime in paragraph (1) of Article 312 of Law No. 5237 and that the act subject to trial cannot be punished due to the principle of legality and typicality were not accepted.
The court found that the Directive and the Circular did not assign an explicit or implicit duty to the military authorities. In the reasoned decision, it was also accepted that the law and other regulations based on the law do not authorize any element of the Turkish Armed Forces to disrupt the democratic order.
They appealed against their conviction for a crime that did not carry the law in their favor.
The applicants appealed against the fact that they had been convicted of a crime that did not carry an element of force and violence on account of their lawful actions and the requirements of their duties as defined in the law, rather than the considerations on the application of the law in their favor.
It is the task of the courts of first instance to determine the scope of criminal responsibility and, accordingly, to assess whether the offense was committed in terms of its elements or the corresponding degree of punishment. Pursuant to the principle of legality in crime and punishment, the interpretations of the courts of first instance within the scope of this assessment must not contradict the essence of the rule defining the crime and determining the punishment and must be foreseeable. In the examination made within the scope of the applicants’ allegations, it cannot be said that the first instance court’s assessments that the acts subject to the trial were not within the scope of the performance of the duty and that the crime occurred. were unfounded in terms of their elements, contrary to the essence of the crime and unpredictable.
For the reasons explained above, the Constitutional Court held that the principle of legality in crime and punishment was not violated.
B. Allegation of Violation of the Right to a Fair Trial
In the concrete case, the applicants’ claim that CD No. 5 was forged was based on an expert report and expert opinion. In the expert opinion given at the prosecution stage, it was accepted that CD No. 5 was obtained in violation of Article 134 of Law No. 5271, other regulations and international standards. Again, in the expert report received at the prosecution stage, it was evaluated that CD No. 5 was not obtained in accordance with the aforementioned article of the Law in terms of forensic informatics technique.
Article 134 of Law No. 5271 regulates the search, copying and seizure of computers, computer programs and logs. Evaluating the expert reports in its reasoned decision, the court panel stated that Article 134 of Law No. 5271 is related to the search of computers, computer programs and logs belonging to the defendants. Accordingly, stating that it is not possible to apply the said article to the digital materials submitted by the parties within the scope of freedom of evidence, the court panel accepted that the CD number 5 submitted by the complainant was not illegally obtained. In its approval decision, the Chamber did not make any determination as to how the CD in question was obtained.
Considering the statements of the court that conducted the trial, it cannot be said that it can be understood at first glance that CD No. 5 was obtained unlawfully and that the CD in question and the documents on it are considered as unlawfully obtained evidence.
The Court of Cassation also stated that the files on CD No. 5, which were sent from public institutions such as the General Staff, submitted by more than one complainant, and verified by those whose names or signatures appear in the signature block, should also be evaluated. The Presidency and the MGK General Secretariat, which are also official institutions and whose authenticity is confirmed by documents submitted by the defendants themselves, will be accepted as evidence. This way, documents whose authenticity and reliability are beyond doubt will be used as evidence.
In addition, in the decision of the Criminal Chamber of the Court of Cassation, it is seen that the documents in the CD content, which are based on factual grounds and do not essentially constitute conclusive evidence, were taken as the basis for the decision. . In conclusion, considering the reasoning of the Court of First Instance’s decision and the Chamber’s assessment on the matter, it is understood that the evidence in question is not the only evidence and is not decisive for the applicants.
For the reasons explained, the Constitutional Court ruled that the right to a fair trial was not violated.
C. Allegation of Violation of the Guarantee of Judgeship
The seventh paragraph of Article 148 of the Constitution stipulates that the Chief of General Staff and the commanders of the land, naval and air forces shall be tried by the Supreme Court for crimes committed in connection with their duties. It is clear that this provision gives rise to the guarantee of a judge of law.
The request for a decision of non-jurisdiction regarding the trial at the Court of Cassation was evaluated on 3/9/2013. In this evaluation, the nature of the crime was emphasized and it was accepted that the acts attributed to the defendants
However, the court of first instance ruled that in accordance with the seventh paragraph of Article 148 of the Constitution, the Chief of General Staff and the commanders of the land, naval and air forces will be tried at the Court of Cassation for crimes related to their duties.
The court interpreted the phrase “offenses related to their duties”. In this context, it was emphasized that some crimes cannot be subject to the duty of a public official and cannot be considered to have been committed due to his/her duty.Within the scope of the aforementioned determinations, the court stated that in order for the offense to be deemed to have been committed due to duty, there must be a causal link between the acts subject to the trial and the duty, and these acts must be committed due to the duty.
Duty and must be fulfilled by taking advantage of the opportunities provided by the duty. As a result, the Court of First Instance accepted that the offense subject to the trial cannot be said to have been committed within the scope of duty, even if it is established that it was committed by taking advantage of the convenience, advantages and opportunities provided by the duty. duty.
In this case, it is necessary to determine whether the trial courts have made the above-mentioned assessments regarding the constitutional rules regulating the duties of the Court of Cassation, taking into account the interpretations of the Constitutional Court on this issue. This determination was made by taking into account the Constitutional Court’s interpretation of the expression “offense related to duties” in Article 148 of the Constitution as the use of powers arising from and related to duties in violation of the legislation.
The Constitutional Court utilized two criteria in this interpretation. According to the first criterion, in order for a duty connection to be established, the act subject to the criminal allegation must be related to a work or activity that must be carried out within the scope of the public official’s duty in accordance with the legislation. The second criterion is that the act related to the duty must be committed by going beyond the legislation regarding the performance of the duty. In the concrete case, it was evaluated that the interpretation of the courts of first instance and the Criminal Chamber of the Court of Cassation that the crime was not related to the
For the reasons explained, the Constitutional Court ruled that the right to a fair trial was not violated.
D. On the allegation of violation of the principle of not being tried and sentenced more than once for the same offense
In the concrete case, witness and complainant statements, documents received from institutions and digital documents that emerged after the decision of non-prosecution are new evidence. Considering that some of this evidence emerged shortly before the start of the investigation, it is understood that the second trial for the acts subject to the decision of non-prosecution is based on the discovery of new evidence and this situation constitutes one of the exceptions. According to the principle stated above.
In addition, paragraph (2) of Article 172 of the Law No. 5271, which was in force as of the date of the incident, did not prohibit the opening of a public case in case new evidence emerged after the decision of non-prosecution.According to subparagraph (6) of Article 173 of the aforementioned Law, which was in force as of the date of the incident, the legislator has made the opening of a public case dependent on the court’s decision otherwise, even in the presence of new evidence.
The heavy criminal court rejected the objection to the previous decision of non-prosecution. Although the principle of not being tried and punished more than once for the same act includes the right not to be prosecuted or tried more than once, it cannot be said that the deficiency was remedied in violation of the law. The decision of the Istanbul 12th High Criminal Court dated 19/7/2013 was issued before the start of the trial.
For the reasons explained, the Constitutional Court ruled that the principle of not being tried and sentenced more than once for the same act was not violated.
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