Events
The applicant, who was a teacher at the time of the events, was detained and subsequently arrested on charges of being a member of the Fetullahist Terrorist Organization/Parallel State Structure (FETÖ/PDY). At the first hearing, the heavy penal court convicted the applicant of being a member of a terrorist organization with a prison sentence of 6 years and 3 months and ordered his release. The applicant’s requests for appeal and cassation were rejected and the judgment became final.
Allegations
The applicant claimed that the conviction for membership of a terrorist organization violated the principle of legality of crimes and punishments, the right to respect for private life and the right to union.
The Court’s Assessment
1. Regarding the Allegation of Violation of the Principle of Legality of Crimes and Punishments
In the concrete case, the courts considered the applicant’s participation in some chats, witness statements indicating that he had social relations in the same direction, his membership to a trade union that was legal at the time but was later closed down due to its affiliation with a terrorist organization, and HTS records indicating that he was in contact with some FETÖ/PDY members as evidence of membership to a terrorist organization. According to the Constitutional Court, there is no doubt that the applicant belonged to or at least sympathized with the organization, which was under the guise of a religious community, at the time he committed the acts on which his sentence was based. On the other hand, the judicial authorities did not argue that the applicant was one of the members of the organization who knew the ultimate goal and methods of FETÖ/PDY and who were at the top of the organizational pyramid. Furthermore, the judicial authorities did not claim in any other way that the applicant was aware of the fact that the FETÖ/PDY was a terrorist organization, with which he was in contact and affiliation under the mistaken belief that it was a religious community before it was recognized as a terrorist organization by the state and known as such by everyone. Failure to establish that individuals knew that a formation or structuring that caused the punishment of individuals on the grounds that they were members of it was a terrorist organization is contrary to the general principles of criminal law and may result in individuals being convicted of serious crimes such as being a member of a terrorist organization on the grounds that they committed acts that were not previously defined as crimes.
The court of first instance failed to establish that the applicant acted with the consciousness of being a member of a terrorist organization when the chat meetings and the witness statements regarding these meetings, which have not been evaluated whether they have organizational characteristics or not, the membership to the union affiliated with the organization and the HTS records regarding the communication with the persons who are on trial with the allegation that they are at the level of imams, which cannot be revealed to be organizational since their content cannot be determined, are taken as a whole. It has not been shown that the applicant, who is understood to have sympathized with and contacted the organization by acting under the assumption that FETÖ/PDY is a non-governmental organization operating on legal grounds, a religious community, reasonably foresaw that the acts used as evidence in his conviction would put him under criminal responsibility. As a result, the conviction of the applicant for being a member of a terrorist organization was made possible by subjecting the said crime to an unforeseeably broad interpretation to the detriment of the applicant. This result is incompatible with the first paragraph of Article 38 of the Constitution.
For the reasons explained above, the Constitutional Court held that the principle of legality of crimes and punishments was violated.
2. Regarding the Allegation of Violation of the Right to Respect for Private Life and Trade Union Rights
The applicant’s right to respect for private life due to the fact that the fact that the applicant, who could not be shown to know the ultimate purpose of the organization, participated in the chats organized by the organization, with which the applicant was in contact and association under the assumption that it was a civil society movement, was used as evidence in the punishment for the crime of being a member of a terrorist organization. The applicant’s membership in a FETÖ/PDY affiliated trade union was used as evidence in his conviction for membership of a terrorist organization without being supported by the existence of organizational activities sufficient to prove that he had established an organic bond with the organization and was included in its hierarchy.
The court of first instance failed to show that the activities of the applicant, who could not be shown to know the ultimate aim of the organization, were organizational activities carried out within the hierarchy of the terrorist organization; thus, it created an unjustified deterrent effect on the right to respect for private life and the right to union. In this context, the court failed to show with a relevant and sufficient justification that the use of the applicant’s actions subject to the complaint as evidence in the conviction verdict met a compelling social need.
For the reasons explained above, the Constitutional Court held that the rights to respect for private life and trade union rights were violated.
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