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 Organisation/Parallel State Structure (FETÖ/PDY). The heavy penal court sentenced the applicant to 6 years and 3 months’ imprisonment for being a member of a terrorist organisation at the first hearing and ordered his release. The applicant’s requests for appeal and cassation were rejected and the judgement was finalised.
Allegations
The applicant claimed that the conviction for membership of a terrorist organisation violated the principle of legality of crimes and punishments, the right to respect for private life and the right to trade 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 of a trade union which was legal at the time but was later closed down due to its affiliation with a terrorist organisation, and HTS records indicating that he was in contact with some FETÖ/PDY members as evidence of membership of a terrorist organisation. According to the Constitutional Court, there is no doubt that the applicant belonged to or at least sympathised with the structure 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 organisation who knew the ultimate aim and methods of FETÖ/PDY and who were at the top of the organisation’s pyramid. Furthermore, the judicial authorities have not claimed in any other way that the applicant was aware of the fact that the FETÖ/PDY was a terrorist organisation before it was recognised as a terrorist organisation by the state and known as such by everyone. Failure to establish that individuals knew that a formation or organisation, of which they were members, was a terrorist organisation is contrary to the general principles of criminal law and may result in individuals being convicted of serious crimes such as membership of a terrorist organisation on the grounds that they committed acts that were not previously defined as crimes.
The court of first instance was not successful in establishing that the applicant acted with the consciousness of being a member of a terrorist organisation when the chat meetings and the witness statements regarding these meetings, which have not been assessed as having organisational characteristics, the membership of a trade union with links to the organisation, and the HTS records relating to the communication with persons who are on trial for allegedly being at the level of imams, the content of which cannot be established as organisational because it cannot be determined, were taken as a whole. It has not been shown that the applicant, who is understood to have sympathised with and contacted FETÖ/PDY under the assumption that it is a non-governmental organisation and a religious community operating on legal grounds, reasonably foresaw that the acts used as evidence in his conviction would make him criminally liable. As a result, the conviction of the applicant for membership of a terrorist organisation was made possible by subjecting the said offence 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 offences 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 cannot be shown to know the ultimate aim of the organisation, participated in the chats organised by the organisation, 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 sentencing of the applicant for the crime of being a member of a terrorist organisation. The right to union was interfered with due to the fact that the applicant’s membership to a union loyal to FETÖ/PDY was used as evidence in his sentencing for the crime of being a member of a terrorist organisation without being supported by the existence of organisational activities sufficient to prove that he had established an organic bond with the organisation 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 organisation, were organisational activities carried out within the hierarchy of the terrorist organisation and thus 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 judgement of conviction fulfils 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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