Events
The applicant was removed from public office by Decree Law No. 670 (Decree Law No. 670) on the Measures to be Taken Within the Scope of the State of Emergency No. 670 while serving as a police chief. An investigation was initiated against the applicant by considering that he was connected with the Fetullahist Terrorist Organization/Parallel State Structure (FETÖ/PDY).
Office of the prosecutor (Attorney-General) was prepared by the indictment; the General Directorate of security-smuggling and organized crime department in the report are offered by two separate registered in the applicant’s own name that the program uses two communication via GSM line ByLock stated. The Prosecutor General’s Office concluded that the applicant had committed the crime of being a member of an armed terrorist organization by betting that he was a member of FETO/PDY due to the ByLock registration, the nature of the notification about him and the fact that he had been removed from public office 1. He has filed a public case in the Criminal Court of Cassation (Court). At the end of the trial, the Court sentenced the applicant to 7 years and 6 months in prison for membership of an armed terrorist organization.
The applicant’s appeal against the decision on the continuation of his detention, which was issued with the provision 2. The appeal application for the above-mentioned provision was rejected by the District Court of Justice of the Supreme Criminal Court. Upon appeal of the decision, the Supreme Court upheld the decision.
Count
The applicant claimed that the principle of legality of crimes and penalties had been violated due to the fact that judicial interpretations made regarding the crime of membership in a terrorist organization were not predictable and that the conviction was based mainly on certain actions that did not constitute a crime.
Evaluation of the Court
Article 38 of the Constitution. according to the principle of legality of crimes and penalties contained in the article, which acts are prohibited and the penalties for these prohibited acts should be shown in the law in a way that leaves no room for doubt, the rule should be clear, understandable and the boundaries should be clear. Based on the idea that people know about prohibited acts in advance, it is aimed to ensure basic rights and freedoms with this principle.
However, no matter how clearly and intelligibly it is regulated, the rules stipulating crimes and punishments may need the interpretation of judicial bodies. However, the interpretation to be made by the judicial bodies should not contradict the essence of the rule and should be predictable. It should also not be ignored that there is no universal definition of terrorism or terrorism accepted by everyone, especially in terms of terrorist crimes. However, this is the case under Article 38 of the Constitution when it comes to the prosecution and punishment of terrorist crimes. crimes and punishments regulated in the article should not be interpreted in such a way as to prevent the provision of guarantees within the scope of the principle of legality.
Judicial bodies should not take an unpredictable approach in such a way as to render meaningless the principle of legality of crimes and punishments when assessing facts related to crime or punishment in terms of all crimes, including terrorist crimes, and in particular when determining whether the acts correspond to a crime.
In Turkish law, the identification of a structure as a terrorist organization is possible only by a judicial decision. The evaluations made by the investigating authorities and judicial authorities regarding FETO/PDY as an armed terrorist organization have not only been the subject of investigations and prosecutions initiated during and after the attempted coup. On the dates before the coup attempt, judicial authorities conducted investigations into the persons who were considered to be members of FETO/PDY and to have committed crimes within the scope of the activities of this organization. Some of the investigations and prosecutions in question have also been the subject of individual applications.
While no decision has yet been made on the determination of FETO/PDY by the judicial bodies to be a terrorist organization or these decisions have not been finalized, this does not mean that the organizational actions of people belonging to this organization will not constitute a crime. A criminal organization can be an illegal structure established to commit crimes from the very beginning, or it is possible that a non-governmental organization operating legally will later turn into a criminal organization or even a terrorist organization. In this context, if it is determined by the courts that a structure that exists in advance but is unknown to the public because it has not been decided on is a terrorist organization, the founder, managers or members of the organization will be responsible for criminal law from the date of its establishment or from the moment it is established for legitimate purposes and then turns into a criminal organization.
Many decisions of the judicial bodies in the FETO/PDY to take over the constitutional institutions of the state, then the state, the society and the members in line with their own ideology, the re-shaping features by hand and having a group of the oligarchic economy, social and political power to dominate in this direction in parallel to the existing administrative system organized on July 15, 2016 coup attempt behind a terrorist organization, and this organization has recognized that the structure is performed.
However, the judicial bodies state that if people claim that they do not know that the formation or structure in which they are allegedly involved is a terrorist organization, the crime of membership in an armed terrorist organization can be committed directly by caste first, and 30 of the Law No. 5237 on these people. it examines whether it is possible to make an assessment in accordance with the error provisions set out in the article. In this review, it is seen that facts such as the position of people in the structure defined as a terrorist organization, the nature of the acts committed and the actual purpose of this organization and whether its activities related to terrorism are known during the specified period when they were committed are taken into account. In this context, the courts of instance, especially the Supreme Court of Cassation, also take into account the institutionalization of this structure -without knowing the illegal aspect – in the social and economic field and the support of its activities in determining criminal liability in the proceedings related to FETO /PDY.
In this context, the Constitutional Court has also evaluated the claims that the right to freedom and security of the person has been violated due to the fact that the arrest is not legal in some individual application files related to FETO/PDY investigations and prosecutions.
In the concrete case, the applicant also complained about the fact that a conviction decision was made against him based on actions such as depositing money in a bank, sending his child to school, becoming a member of an association, participating in peaceful meetings/conversations. When the conviction verdict against the applicant is examined, it is understood that the conviction is not based on these actions claimed by the applicant, but on the use of the ByLock program.
The court decided to convict the applicant not of the act of using a ByLock, but of membership in an organization. The court accepted that the applicant had used a ByLock as evidence that he had committed the crime of membership in an organization. The Constitutional Court has also previously examined claims that ByLock data was obtained on a non-legal basis or unlawfully and that ByLock could not be used as the sole or decisive evidence in a conviction decision and has not found a violation of the right to a fair trial.
The judicial authorities have conducted the necessary research, examinations and evaluations regarding the authenticity or reliability of digital materials related to ByLock. The data submitted to the judicial authorities were examined and interpreted by technical units. The defense side also had the opportunity -in accordance with the principles of equality of arms and contradictory proceedings- to challenge the authenticity of the evidence that the applicant was a user of ByLock and oppose its use.
The court examined the purpose of the organization, its action plan and whether it resorted to violence while following this plan in relation to the existence of FETO/PDY. According to the court, in order for the crime of membership in an armed terrorist organization to occur, it is necessary to establish an organic connection with the organization and, as a rule, to take actions and activities that require continuity, diversity, intensity.
After evaluating all the features of the ByLock program and its differences from common practices together, the court concluded that this program has been available exclusively to FETO/PDY members since the beginning of 2014, when it was first used, and that members of the organization have used this program to hide themselves and ensure organizational communication since the first moment. Therefore, it has been concluded that the applicant’s activities carried out in the form of using the ByLock program are of an organizational nature and include diversity, intensity, continuity.
The court concluded that the applicant used the ByLock program available to members of FETO/PDY for organizational purposes in order to ensure intra-organizational communication, so the applicant was aware that this formation was intended to commit a crime and did not respect his defenses. It is understood that these interpretations of the court do not extend the scope of the act that the legislator has designated as prohibited in such a way as to contradict the principle of legality of crimes and punishments, do not contradict the essence of the rule on membership in the organization and are predictable. The court has taken care to be predictable and appropriate to the nature of the crime while clarifying the elements of the breakthrough crime. Therefore, the conclusion reached that the applicant was in a position to know the elements of the crime of membership in an organization committed by this organization and that this formation was intended to commit a crime is not unfounded due to the fact that he used the ByLock program of an organizational nature for this purpose.
The Constitutional Court has decided that the principle of legality of crimes and punishments has not been violated on the grounds described.
