Events
In 2011, the Ankara Chief Public Prosecutor’s Office initiated an investigation against the applicants, who are retired military officers, for their actions during the 28 February period. In these investigations, known in the public opinion as the 28 February investigation, an indictment was issued with the request for the applicants to be punished. As a result of the trials held at the Assize Court, the applicants were convicted on the grounds that they had committed the offence of forcibly dismissing or forcibly preventing the Council of Executive Deputies of the Republic of Turkey from performing its duties or encouraging them to do so, as defined in Article 147 of the abrogated Law No. 765. The applicants’ appeal against the aforementioned judgement was rejected on the merits. The applicants appealed this decision and requested that the judgement be reversed. The Court of Cassation, which examined the appeal, rejected the applicants’ appeal on the merits and upheld the judgement of conviction.
Allegations
The applicants claimed that the principle of legality in crime and punishment was violated due to being punished for an act that did not constitute an offence, the right to a fair trial due to the use of illegally obtained evidence as a basis for conviction, the guarantee of a legal judge due to the fact that the trial was not held before the Supreme Court, and the principle of not being tried or punished more than once for the same act.
The Court’s Assessment
A. Regarding the Allegation of Violation of the Principle of Legality in Crime and Punishment
The trial court explained that it did not rely on the defendants’ defences that their actions were not capable of producing the result, that they did not involve force and violence, and that the Government had resigned of its own accord. Nevertheless, it was accepted that the offence was completed due to the occurrence of the harmful consequence rather than remaining incomplete or remaining at the full attempt stage. Furthermore, the defence of the defence counsels that the completed offence is not regulated as an offence in Article 312, paragraph (1) of Law No. 5237 and that the act subject to trial cannot be punished due to the principle of legality and typicality was not accepted.
The trial court determined that no explicit or implicit assignment was made to the military authorities by the Directive and the Circular. It was also accepted in the reasoned decision that the law and other regulations based on the law do not authorise any element of the Turkish Armed Forces to overthrow the democratic order.
The applicants objected to the fact that they had been sentenced for an offence that did not consist of an element of force and violence due to their actions in accordance with the law and the requirements of their duties as defined by the law, rather than assessments regarding the application of the favourable law.
It is the duty of the courts of first instance to determine the scope of criminal liability and, accordingly, to assess whether the offence has been established in terms of its elements or the degree of punishment corresponding to it. As a requirement of the principle of legality in crime and punishment, the interpretations of the courts of first instance within the scope of this assessment must not contradict the essence of the rule defining the offence and determining the punishment, and must be foreseeable. In the examination carried out within the scope of the applicants’ allegations, it cannot be said that the assessments of the court of first instance that the acts subject to trial were not within the scope of the performance of duty and that the offence was formed in terms of its elements were unfounded, incompatible with the essence of the offence and unforeseeable.
For the reasons explained above, the Constitutional Court has decided that the principle of legality in offence and punishment has not been violated.
B. Regarding the Allegation of Violation of the Right to a Fair Trial
In the concrete case, the applicants’ claim that CD No.5 was forged was based on the expert report and expert opinion. In the expert opinion issued at the prosecution stage, it was accepted that CD No. 5 was obtained in violation of the regulation in Article 134 of Law No. 5271, other regulations and international standards. Again, in the expert report obtained at the prosecution phase, it was evaluated that CD No.5 was not obtained in accordance with the aforementioned article of the Law in terms of forensic informatics technique.
Article 134 of the Law No. 5271 regulates the search, copying and seizure of computers, computer programmes and logs. Evaluating the expert reports in its reasoned decision, the trial court stated that the regulation in Article 134 of Law No. 5271 is related to the search of the computers, computer programmes and logs of the defendants. Accordingly, stating that it is not possible to apply the aforementioned article to the digital discs submitted by the parties within the scope of freedom of evidence, the trial court accepted that the CD No. 5 submitted by the complainant was not obtained unlawfully. The Chamber did not make any determination regarding the way the said CD was obtained in its decision of approval.
When the statements of the trial court are taken into consideration, it cannot be said that it can be understood at first glance that the CD No. 5 was obtained unlawfully, and that the said CD and the documents on it were evaluated as unlawfully obtained evidence.
The trial court also stated that the files contained on CD No. 5, which are verified by those whose names or signatures are in the signature block, which are submitted by more than one complainant, which are sent from public institutions such as the General Staff Presidency and the MGK General Secretariat, which are also official institutions, and whose authenticity is confirmed by the documents submitted by the defendants themselves, will be accepted as evidence. In this way, he stated that documents whose authenticity and reliability are not in doubt will be used as evidence.
In addition, in the decision of the Court of Cassation Criminal Chamber, it is seen that an assessment was made that the documents in the CD content, which are based on factual grounds and are not in the nature of decisive evidence, were taken as basis for the judgement. In conclusion, considering the reasoning of the decision of the Court of First Instance and the relevant assessment of the Chamber, it is understood that the evidence in question is not the only evidence and is not decisive for the applicants.
For the reasons explained, the Constitutional Court decided that the right to a fair trial was not violated.
C. Regarding the Allegation of Violation of the Guarantee of a Legal Judge
The seventh paragraph of Article 148 of the Constitution stipulates that the Chief of General Staff and the commanders of the land, naval and air forces shall be tried by the Supreme Court for offences committed in connection with their duties. It is clear that this regulation gives rise to the guarantee of a legal judge.
The requests for a decision of non-jurisdiction by stating that the trial should be held at the Supreme Court were evaluated on 3/9/2013. In this evaluation, the nature of the offence was emphasised and it was accepted that the acts attributed to the defendants were not related to their duties according to the regulation in Article 148 of the Constitution.
However, the court of first instance determined that the Chief of General Staff and the commanders of the land, naval and air forces would be tried by the Supreme Court for offences related to their duties according to the seventh paragraph of Article 148 of the Constitution and interpreted the term “offence related to their duties”. In this context, it has emphasised that some offences cannot be the subject of the public official’s duty and cannot be considered to have been committed due to their duties. Within the scope of the aforementioned determinations, the trial court stated that in order for the offence to be accepted as committed due to duty, there must be a causal link between the acts subject to the trial and the duty, these acts must be related to the duty and they must be committed by taking advantage of the opportunities provided by the duty. As a result, the court of first instance accepted that even if it is established that the offence subject to trial was committed by using the convenience, advantage and opportunity provided by the duty, it cannot be said that it was committed within the scope of duty.
In this case, it is necessary to determine whether the courts of first instance made the aforementioned evaluations regarding the constitutional rules regulating the duties of the Supreme Court by taking into account/observing the interpretations of the Constitutional Court on this issue. This determination has been made by taking into consideration the Constitutional Court’s interpretation of the expression “offence related to their duties” in Article 148 of the Constitution as the use of the powers arising from the duty and related to the duty in violation of the legislation.
Two criteria were utilised in this interpretation of the Constitutional Court. According to the first criterion, in order to establish a duty connection, the act subject to the criminal allegation must be related to a work or activity that must be seen within the scope of the public official’s duty in accordance with the legislation. The second criterion is that the act connected with the duty must be committed by going beyond the legislation related to the performance of the duty. In the concrete case, it was evaluated that the interpretation of the courts of first instance and the Criminal Chamber of the Court of Cassation that the offence was not related to the duty did not constitute a violation of the guarantee of the legal judge.
For the reasons explained, the Constitutional Court decided that the right to a fair trial was not violated.
D. Regarding the allegation that the principle of not being tried or punished more than once for the same offence has been violated
In the concrete case, witness and complainant statements, documents from institutions and digital documents that emerged after the decision of non-prosecution are new evidence. Considering that some of these evidences emerged shortly before the start of the investigation, it is understood that the second trial due to the acts subject to the decision on non-prosecution arose due to the discovery of new evidence and this situation constitutes one of the exceptions to the aforementioned principle.
Moreover, paragraph (2) of Article 172 of the Law No. 5271, which was in force as of the date of the incident, did not prohibit the filing of a public case in case of new evidence after the decision of non-prosecution. According to paragraph (6) of Article 173 of the aforementioned Law, which was also in force as of the date of the incident, the legislator has linked the opening of a public case even in the presence of new evidence to the contrary decision of the heavy criminal court that rejected the objection against the previous decision of non-prosecution. Although the principle of not being tried or punished more than once for the same act includes the right not to be prosecuted or tried more than once, it cannot be said that the deficiency has been eliminated in violation of the law, considering the fact that the decision of the Istanbul 12th Assize Court dated 19/7/2013 was made before the trial started.
For the reasons explained, the Constitutional Court decided that the principle of not being tried or punished more than once for the same act was not violated.
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