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 while serving as the head of security. An investigation was launched against the applicant, considering that he was in contact with the Fetullahist Terrorist Organization/Parallel State Structure (FETO/PDY).
The indictment prepared by the Public Prosecutor’s Office (Prosecutor General’s Office) stated that the applicant used the ByLock communication program via two GSM lines registered in his name in two separate reports submitted by the Department of Combating Trafficking and Organized Crime of the General Directorate of Police. 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 (Court). At the end of the trial, the Court sentenced the applicant to 7 years and 6 months in prison for membership in an armed terrorist organization.
The applicant’s objection to the decision on the continuation of his detention, which was given in conjunction with the provision 2. The application for a stay for this provision was rejected by the Regional Court of Justice. Upon appeal of the decision, the Supreme Court upheld the decision.
The applicant submitted that the principle of legality of crimes and penalties had been violated due to the fact that judicial interpretations made in connection with the crime of membership in a terrorist organization were not predictable and the conviction was also based mainly on some actions that did not constitute a crime.
Assessment of the Court
Article 38 of the Constitution in accordance with 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. It is aimed to secure fundamental rights and freedoms with this principle, which is based on the idea that people know about prohibited acts in advance.
However, no matter how clearly and clearly it is regulated, the rules governing crime and punishment 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 overlooked that there is no universal definition of terrorism or terrorism that is 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. it should not be interpreted in such a way as to prevent the provision of guarantees within the framework of the principle of legality of crimes and penalties regulated in the article.
Judicial bodies should not take an unpredictable approach to making the principle of legality of crimes and sentences meaningless when assessing the facts related to crime or punishment in terms of all crimes, including terrorist crimes, and, in particular, 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 the fact that FETÖ/PDY is an armed terrorist organization were not the subject of investigations and prosecutions initiated only after the attempted coup and after it. In the dates before the attempted coup, investigations were carried out by judicial authorities on people who were considered to be members of FETO/PDY and 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.
In the period when no decision has yet been made on the determination of the FETO/PDY by the judicial authorities that it is a terrorist organization, or when these decisions have not been finalized, this does not mean that the organizational actions of people belonging to the said organization will not constitute a crime. A criminal organization can be an illegal structure established to commit a crime from the very beginning, and it is also possible that a non-governmental organization that is operating legally will later turn into a criminal organization or even a terrorist organization. In this context, the pre-existing structure is the presence of an unknown but a unanimous decision about a terrorist organisation by the public for the decision to be given by the courts is found to be related to the founder of the organization, managers or members of the organization, date, or for legitimate purposes and later became a criminal organisation that was established from the moment in terms of criminal law will be responsible.
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, judicial bodies state that the crime of being a member of an armed terrorist organization can be committed directly by caste if people claim that they do not know that the formation or structure they are supposed to be involved in is a terrorist organization, and Law No. 5237 on these people is 30. 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 the facts such as the positions of people in the structure defined as a terrorist organization, the nature of the acts committed and whether the true purpose of this organization and its terrorist-related activities were known during the specified period during which they were committed are taken into account. In this context, the courts of instance, especially the Supreme Court, also take into account that this structure develops and institutionalizes and supports its activities in the social and economic field without knowing the illegal aspect in the proceedings related to FETO/PDY in determining criminal liability.
In this context, the Constitutional Court has also evaluated the allegations that the right to human freedom and security has been violated due to the lack of legal arrest in some individual application files for the investigation and prosecution of FETO/PDY.
In the concrete case, the applicant also complained about the fact that a conviction decision was made on the basis of actions such as depositing money in a bank, sending his child to school, becoming a member of an association, participating in peaceful meetings/chats. When examining the decision of conviction against the applicant, it becomes clear that the conviction was not based on these actions claimed by the applicant, but on the use of the ByLock program.
The court decided to convict the applicant of membership in the organization, and not of the fact of using the ByLock. The Court accepted the applicant’s use of the ByLock as evidence that he had committed the offence of membership in the organisation. The Constitutional Court has also previously examined claims that ByLock data was obtained without legal basis or in violation of the law and that ByLock cannot 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 have been examined and interpreted by the 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, the 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 carry out actions and activities that require continuity, diversity, intensity.
The Court concluded that the ByLock program is a program that has been available exclusively to FETO/PDY members since the beginning of 2014, when this program was first used, and that the members of the organization used this program to hide themselves and provide organizational communication from the first moment. Therefore, it has been concluded that the applicant’s activity in the form of using the ByLock program is of an organizational nature and includes diversity, intensity, continuity.
The Court concluded that the applicant had used the ByLock program offered for the use of FETO/PDY members for organizational purposes in order to ensure intra-organizational communication, therefore the applicant was aware that this formation was intended to commit a crime and did not give credit to their defense. It is understood that these interpretations of the court do not expand the scope of the act designated by the legislator as prohibited in such a way as to contradict the principle of legality of crimes and penalties, 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 discarded crime. Therefore, the conclusion that the applicant’s use of the organizational ByLock program for this purpose is not unfounded, since the applicant believes that this formation is intended to commit a crime and is in a position to know the elements of the crime of membership in the organization that has been thrown at him is not unfounded.
The Constitutional Court has decided that the principle of legality of crimes and penalties has not been violated on the grounds described.