Events
The applicant was convicted and sentenced to death on the charge of attempting to change the constitutional order in relation to the incident known as the Madımak events, which resulted in the death of 35 people, and the conviction became final with the confirmation of this decision by the Court of Cassation. With an additional judgement, the death sentence imposed on the applicant was commuted to life imprisonment with hard labour; later, with the decision of the heavy penal court, the sentence of life imprisonment with hard labour was commuted to aggravated life imprisonment and the sentence was decided to be executed as such. The applicant’s request to benefit from the Law No. 4959 on Reintegration into Society was rejected by the additional decision of the heavy penal court; this decision was upheld by the Court of Cassation. It was stated in the sentence order that the applicant had been sentenced to aggravated life imprisonment and that the type of execution was within the scope of the Law No. 5275 on the Execution of Criminal and Security Measures.
The applicant stated that he had not committed a crime in affiliation with any organisation, that the time schedule prepared without applying the conditional release provisions was erroneous and that the execution should be carried out in accordance with Article 107 of the Law No. 5275 and requested the correction of the error in the time schedule. The execution judgeship decided to reject the applicant’s request, stating that the applicant could not benefit from the conditional release provisions due to the sentence he received as the judgement subject to execution was a terrorist offence. The applicant objected to the decision of the execution judge, stating that his request was rejected unjustified without any evaluation of the allegations he had raised. The heavy penal court decided definitively to reject the objection on the grounds that the decision of the execution judge was in accordance with the procedure and the law.
Allegations
The applicant claimed that the principle of legality in offence and punishment was violated due to the issuance of a time limit without applying the conditional release provisions.
Assessment of the Court
The issue in the concrete case is whether the conditional release provisions shall be applied to the aggravated life imprisonment sentence imposed on the applicant. Provisional Article 2 of the Law No. 5275 and paragraph (4) of Article 17 of the Anti-Terrorism Law No. 3713 state that terrorism offenders whose death sentences have been converted into life imprisonment cannot benefit from the conditional release provisions. Considering these provisions, what is important in terms of benefiting from the conditional release provisions is not that the offence committed is a terrorist offence, but that the person who committed the offence is a terrorist offender. Law No. 3173 defines the concepts of terrorist offence and terrorist offender differently. According to Article 2 of the Law No. 3713, the term “terrorist offender” includes those who are members of organisations formed to achieve the objectives set out in Article 1 of this Law, and who commit crimes with others or alone in line with these objectives, or who are members of the organisations even if they do not commit the intended crime, or who commit crimes on behalf of the organisation even if they are not members of the terrorist organisation.
Therefore, in order to be considered a terrorist offender, a person must either be a member of an organisation formed to achieve the aims set out in Article 1 of Law No. 3713 or commit crimes on behalf of such organisations. However, in the concrete case, when the conviction decision against the applicant is examined, it is not concluded that the applicant was a member of any organisation or committed a crime on behalf of any organisation. There was no reference to the name of an organisation as the planner or perpetrator of the crime, and no concrete connection of the applicant with any organisation was mentioned. Although the conviction under Article 146 of the abrogated Law No. 765 and the Court of Cassation’s reversal decision on the first conviction stated that the acts in question were carried out within an organisation, no concrete determination was made as to the existence of an organisation and no assessment was made that would invalidate the findings in the first conviction decision that there was no organisation. On the contrary, it was stated in these decisions that it was not necessary to have a pre-formed organisation or gang, whether armed or not, in order to commit the offence regulated under Article 146 of the abrogated Law No. 765.
On the other hand, in the case filed against the applicant within the scope of the Law No. 3713, although it was claimed that the defendants, including the applicant, formed an organisation by uniting around the same purpose within the framework of the second paragraph of Article 1 of the Law No. 3713, such an organisation was not evaluated in the conviction decision based on this legal regulation.
Article 220 of Law No. 5237 requires a hierarchical structure and continuity for the existence of an organisation. It is clear that the new definition of the concept of organisation is in favour of the applicant compared to the old definition in Article 1 of Law No. 3713. Because in the concrete case, no hierarchical relationship between the convicted persons could be detected and the persons who committed the act came together to commit a single offence of changing the constitutional order. Therefore, in accordance with the principle of retroactivity of the favourable law, it is essential to determine whether there is an organisation in this sense in the case in which the applicant was convicted in order to determine whether the applicant can benefit from the conditional release provisions. However, no explanation was given by the execution judge regarding these issues, and the term “terrorist offender” in the relevant laws was interpreted in an unpredictable manner that contradicts the essence of the article.
For the reasons explained, the Constitutional Court held that the principle of legality in offence and punishment was violated.
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