Events
While working as a police chief, the applicant was dismissed from public service with the Decree Law No. 670 on Measures to be Taken Under the State of Emergency (Executive Decree No. 670). An investigation was initiated against the applicant, considering that he was related to the Fetullah Terrorist Organization/Parallel State Structure (FETÖ/PDY).
In the indictment prepared by the Office of the Chief Public Prosecutor; In two separate reports submitted by the Anti-Smuggling and Organized Crime Department of the General Directorate of Security, it was stated that the applicant used the ByLock communication program over two GSM lines registered in his name. Attorney General’s Office; Due to the ByLock record, the nature of the denunciation and the fact that he was dismissed from public office, he 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, and filed a civil lawsuit at the 1st High Criminal Court (Court). At the end of the trial, the Court sentenced the applicant to 7 years and 6 months in prison for being a member of an armed terrorist organization.
The Applicant’s objection to the decision regarding the continuation of his detention given with the verdict was rejected by the 2nd High Criminal Court, and his appeal against the aforementioned decision was rejected by the Regional Court of Justice. Upon appeal of the decision, the Supreme Court upheld the decision.
allegations
The applicant claimed that the principle of legality of crimes and penalties was violated because the judicial interpretations made regarding the crime of membership of a terrorist organization were not predictable and the conviction was based on some acts that did not constitute a crime.
Court’s Evaluation
In accordance with the principle of legality of crimes and punishments in Article 38 of the Constitution, which acts are prohibited and the penalties to be imposed on these prohibited acts must be indicated in the law in a way that leaves no room for doubt, and the rule must be clear, understandable and its limits must be clear. With this principle, which is based on the idea that people know forbidden acts in advance, it is aimed to guarantee fundamental rights and freedoms.
However, no matter how clearly and comprehensibly they are regulated, the rules that prescribe crime and punishment may need the interpretation of the judicial organs. However, the interpretation to be made by the judicial organs must not contradict the essence of the rule and must be foreseeable. It should not be overlooked that there is no universal definition of terrorism or terrorism accepted by everyone, especially in terms of terrorist crimes. However, this situation should not be interpreted as preventing the provision of guarantees within the scope of the principle of legality of crimes and penalties regulated in Article 38 of the Constitution when it comes to the prosecution and punishment of terrorist crimes.
Judicial organs should not adopt an unpredictable approach that renders the principle of legality of crimes and penalties meaningless when evaluating criminal or criminal facts for all crimes, including terrorist crimes, and especially when determining whether the actions correspond to a crime.
In Turkish law, determination of a structure as a terrorist organization is only possible with a judicial decision. The evaluations made by the investigating authorities and judicial authorities regarding the FETÖ/PDY being an armed terrorist organization have not been the subject of investigations and prosecutions initiated only after the coup attempt. In the dates before the coup attempt, investigations were carried out by the judicial authorities against those who were considered to be members of FETÖ/PDY and to have committed crimes within the scope of the activities of this organization. Some of these investigations and prosecutions have also been the subject of individual applications.
In the period when a decision has not yet been made regarding the determination of FETÖ/PDY as a terrorist organization by the judicial organs or the said decisions have not been finalized, this does not mean that the organizational actions of the members of the aforementioned 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 for a non-governmental organization operating legally to turn into a criminal organization or even a terrorist organization later on. In this context, although the determination of a pre-existing organization, whose existence is unknown to the public, as a terrorist organization depends on the decision to be made by the courts, the criminal law from the date of establishment of the organization or the moment it was established for legitimate purposes and later turned into a criminal organization. will be responsible for
In many decisions, the judiciary organs of FETÖ/PDY aim to seize the constitutional institutions of the state, then to reshape the state, society and individuals in line with its own ideology, and to manage the economy, social and political power by a group with oligarchic characteristics, and in this direction, organized in parallel with the existing administrative system. admitted that it is a terrorist organization and that this organization is the organization behind the coup attempt on 15 July 2016.
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However, judicial bodies; states that the crime of being a member of an armed terrorist organization can be committed with direct intent, if people claim that they do not know that the organization or organization they are alleged to be involved in, and examines whether it is possible to make an assessment about these people in accordance with the provisions of error regulated in Article 30 of Law No. 5237. In this examination, it is seen that facts such as the position of the individuals 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 terrorist-related activities were known at the time of their commission. In this context, the courts of instance, especially the Supreme Court, take into account the support for the institutionalization and activities of this structuring in the social and economic field, without knowing its illegal aspect, in determining criminal responsibility in the proceedings related to FETÖ/PDY.
In this context, the Constitutional Court has also evaluated the allegations in some individual application files regarding FETÖ/PDY investigations and prosecutions that the right to personal freedom and security has been violated because the detention was unlawful.
In the concrete case, the applicant; He also complained that he was sentenced for actions such as depositing money in a bank, sending his child to school, being a member of an association, and participating in peaceful meetings/chats. When the conviction decision about the applicant is examined, it is understood that the conviction was not based on the actions claimed by the applicant, but on the use of the ByLock program.
The court sentenced the applicant not for the act of using ByLock, but for membership of an organization. The court accepted the fact that the applicant had used ByLock as evidence that he had committed the crime of being a member of an organization. The Constitutional Court also examined the allegations that ByLock data was obtained without a legal basis or illegally and that ByLock could not be used as the sole or decisive evidence in the conviction decision, and did not find any violations in terms of the right to a fair trial.
Judicial authorities have made the necessary research, examination and evaluation regarding the authenticity or reliability of digital materials related to ByLock. The data submitted to the judicial authorities were analyzed and interpreted by the technical units. The defense side also had the opportunity to object to the authenticity of the evidence that the applicant was a ByLock user, and to oppose its use, in accordance with the principles of equality of arms and adversarial proceedings.
Regarding the existence of FETÖ/PDY, the court examined the purpose of the organization, its action plan, and whether it resorted to violence while following this plan. According to the court, in order for the crime of membership to an armed terrorist organization to occur, an organic bond with the organization must be established and, as a rule, there must be actions and activities that require continuity, diversity and intensity.
Court; After evaluating all the features of the ByLock program and its differences from common applications, it has been concluded that this program has been exclusively offered to the use of FETO/PDY members since the beginning of 2014, when this program was first used, and that the members of the organization used this program from the first moment to hide themselves and to ensure organizational communication. Therefore, it has reached the conclusion that the applicant’s activity in the form of using the ByLock program is of an organizational nature and includes diversity, intensity and continuity.
The court concluded that the applicant used the ByLock program, which was made available to FETÖ/PDY members for organizational purposes, in order to ensure intra-organizational communication, and therefore the applicant was aware that this organization had the purpose of committing a crime, and did not give credit to their defense. It is understood that these comments of the court did not extend the scope of the act determined as prohibited by the legislator in a way that would be contrary to the principle of legality of crimes and penalties, did not contradict the essence of the rule regarding organization membership and was foreseeable. While clarifying the elements of the imputed crime, the Court took care to be predictable and appropriate to the nature of the crime. Therefore, the conclusion that the applicant used the organizational nature ByLock program for this purpose, that this formation intended to commit a crime and that he was in a position to know the elements of the crime of membership of an organization, is not unfounded.
The Constitutional Court decided that the principle of legality of crimes and penalties had not been violated for the reasons explained.
