Events
While serving as a police chief, the applicant was dismissed from public service under Decree Law No. 670 on Measures to be Taken in a State of Emergency (Executive Decree No. 670). An investigation was launched against the applicant on the grounds that he was affiliated with the Fetullah Terrorist Organization/Parallel State Structure (FETÖ/PDY).
The indictment prepared by the Chief Public Prosecutor’s Office stated that two separate reports submitted by the General Security Directorate’s Smuggling and Organized Crime Department indicated that the applicant used the ByLock communication program via two GSM lines registered in his name. The Chief Public Prosecutor’s Office concluded that the applicant had committed the crime of being a member of an armed terrorist organization on the grounds that he was a member of FETÖ/PDY, based on his ByLock registration, the nature of the report, and his removal from public office, and filed a civil lawsuit in the 1st Heavy Penal Court (the Court). As a result of the trial, the Court sentenced the applicant to 7 years and 6 months imprisonment for the crime of being a member of an armed terrorist organization.
The applicant’s appeal against the decision to continue his detention was rejected by the 2nd Heavy Penal Court, and his appeal against this decision was rejected by the Regional Court of Justice. Upon appeal, the Supreme Court upheld the decision.
Allegations
The applicant claimed that the principle of legality of crimes and penalties had been violated because the judicial interpretations regarding the crime of membership in a terrorist organization were not foreseeable and the conviction was based on certain acts that did not constitute a crime.
The Court’s Assessment
According to the principle of legality of crimes and punishments in Article 38 of the Constitution, which acts are prohibited and the penalties for these prohibited acts must be specified in the law in a manner that leaves no room for doubt, and the rule must be clear, understandable, and have clear boundaries. This principle, based on the idea that people know in advance what acts are prohibited, aims to guarantee fundamental rights and freedoms.
However, no matter how clearly and comprehensively they are regulated, rules prescribing crimes and penalties may require interpretation by the judiciary. Nevertheless, the interpretation made by the judiciary should not be contrary to the essence of the rule and should be predictable. Particularly with regard to terrorist crimes, it should not be overlooked that there is no universally accepted definition of terrorism. However, this situation should not be interpreted as preventing the provision of guarantees under the principle of legality of crimes and punishments set out in Article 38 of the Constitution when it comes to the prosecution and punishment of terrorist crimes.
When evaluating criminal or quasi-criminal facts for all crimes, including terrorist crimes, and particularly when determining whether actions constitute a crime, judicial bodies should not adopt an unpredictable approach that renders the principle of legality of crimes and punishments meaningless.
Under Turkish law, an entity can only be designated as a terrorist organization by a court decision. The assessments made by the investigating authorities and judicial bodies regarding FETÖ/PDY being an armed terrorist organization were not the subject of the investigations and prosecutions initiated after the coup attempt. Even before the coup attempt, investigations were conducted by the judicial authorities against individuals suspected of being members of FETÖ/PDY and found to have committed crimes within the scope of this organization’s activities. Some of these investigations and prosecutions have also been the subject of individual applications.
Even if judicial bodies have not yet issued a decision regarding the designation of FETÖ/PDY as a terrorist organization, or if such decisions have not yet become final, this does not mean that the organizational actions of the members of the aforementioned organization do not constitute a crime. A criminal organization may be an illegal structure established from the outset for the purpose of committing crimes, or a civil society organization operating legally may later transform into a criminal organization or even a terrorist organization. In this context, although the determination of a pre-existing organization unknown to the public as a terrorist organization depends on the decision of the courts, criminal liability will arise under criminal law from the date the organization was established or from the moment it was established for legitimate purposes and later transformed into a criminal organization.
In many decisions of the judicial organs, it has been accepted that FETÖ/PDY aimed to take over the constitutional institutions of the state, then reshape the state, society, and individuals in line with its ideology, and have the economy, social, and political power managed by a group with oligarchic characteristics, and that it was organized in parallel with the existing administrative system in this direction. It has also been admitted that this organization is a terrorist organization and that it was behind the coup attempt on July 15, 2016.
However, the judicial authorities state that the crime of membership in an armed terrorist organization can be committed with direct intent if the individuals claim that they did not know about the alleged organization or organizations, and they examine whether it is possible to evaluate these individuals in accordance with the provisions on error set forth in Article 30 of Law No. 5237.
This examination takes into account factors such as the individuals’ positions within the structure defined as a terrorist organization, the nature of the actions constituting the crime, and whether the organization’s true purpose and terrorist activities were known at the time they were committed. In this context, courts of first instance, particularly the High Court, take into account the institutionalization of this structure in the social and economic spheres and the support given to its activities when determining criminal liability in cases related to FETÖ/PDY, without knowing its illegal nature.
In this context, the Constitutional Court has also evaluated claims of violation of the right to personal liberty and security due to unlawful detention in some individual application files related to FETÖ/PDY investigations and prosecutions.
I n the specific example, the applicant complained that he was convicted for actions such as depositing money in a bank, sending his child to school, becoming a member of an association, and participating in peaceful meetings/conversations. Upon examination of the applicant’s conviction, it is understood that the conviction was based on the use of the ByLock program, not on the actions claimed by the applicant.
The court punished the applicant not for using ByLock, but for the crime of membership in an organization. The court accepted the fact that it used ByLock as evidence that the applicant had committed the crime of membership in an organization. Th e Constitutional Court also examined the claims that the ByLock data had been obtained without legal basis or by unlawful means and that ByLock could not be used as the sole or decisive evidence in the conviction decision, and found no violation of the right to a fair trial.
The judicial authorities conducted the necessary research, examination, and evaluation regarding the authenticity or reliability of the digital materials related to ByLock. T he data presented to the judicial authorities was analyzed and interpreted by technical units. The defense also had the opportunity to challenge the authenticity of the evidence that the applicant was a ByLock user and to object to its use, in accordance with the principles of fair trial and adversarial proceedings.
Regarding the existence of FETÖ/PDY, the court examined the organization’s purpose, action plan, and whether it resorted to violence while implementing this plan. According to the court, for the crime of membership in an armed terrorist organization to be established, an organic link with the organization must be established, and actions and activities requiring continuity, diversity, and intensity as a rule are necessary.
After evaluating all the features of the ByLock program and its differences from common applications, the court concluded that this program was made available only to FETÖ/PDY members from the beginning of 2014, when it was first used, and that the organization’s members used this program from the outset to conceal themselves and facilitate organizational communication. Therefore, it was concluded that the applicant’s activity in using the ByLock program was organizational in nature and involved diversity, intensity, and continuity.
The court concluded that the applicant used the ByLock program, which was offered to FETÖ/PDY members for organizational purposes, to facilitate internal communication within the organization and was therefore aware that this organization had the purpose of committing crimes, and did not accept his defenses. It is understood that the court’s interpretations do not expand the scope of the act prohibited by the legislature in a manner contrary to the principle of legality of crimes and punishments, do not contradict the essence of the rule regarding membership in an organization, and are foreseeable.
In explaining the elements of the alleged crime, the court took care to be foreseeable and appropriate to the nature of the crime. Therefore, the conclusion that the applicant used the organizational ByLock program for this purpose, that this formation aimed to commit crimes, and that the applicant was in a position to know the elements of the crime of membership in an organization is not unfounded.
The Constitutional Court has decided that the principle of legality of crimes and punishments has not been violated for the reasons explained.