Press Release No: Individual Application 44/21

Press Release concerning the Judgment Finding No Violation of the Nullum Crimen, Nulla Poena Sine Lege Principle due to Membership of a Structure Evidently Degenerating into a Terrorist Organisation

On 15 April 2021, the Plenary of the Constitutional Court found no violation of the nullum crimen, nulla poena sine lege principle safeguarded by Article 38 of the Constitution in the individual application lodged by Adnan Şen (no. 2018/8903).

The Facts

The applicant, holding office as a chief of police, was dismissed from public office pursuant to the Decree-Law no. 670 on the Measures Taken under the State of Emergency (“Decree-Law no. 670). An investigation was initiated against him for his alleged connection with the Fetullahist Terrorist Organisation/Parallel State Structure (“FETÖ/PDY”).

In the indictment issued by the incumbent chief public prosecutor’s office, it was stated that as revealed by two separate reports of the Security General Directorate, Department of Anti-Smuggling and Organised Crime, the applicant had been using ByLock communication app. through two GSM numbers registered in his name. The chief public prosecutor’s office indicted the applicant before the 1st Chamber of the relevant Assize Court (“the court”) on the charge of being a member of an armed terrorist organisation, namely the FETÖ/PDY, in consideration of his ByLock subscription, the nature of the criminal denunciation against him and his dismissal from public office. At the end of the proceedings, the applicant was sentenced to 7 years and 6 months’ imprisonment due to his membership of the said armed terrorist organisation.

The applicant’s challenge against the decision on conviction -whereby his continued detention was ordered as well- was dismissed by the 2nd Chamber of the Assize Court, and his appeal against the decision on conviction was also dismissed by the regional court of appeal. On appeal in cassation, the Court of Cassation upheld the decision.

The Applicant’s Allegations

The applicant maintained that the nullum crimen, nulla poena sine lege principle had been violated as the interpretation by judicial bodies of the criminal act of membership of a terrorist organisation had lacked foreseeability and that certain acts, which did not indeed constitute an offence, had been also relied on for his conviction.  

The Court’s Assessment

As required by the nullum crimen, nulla poena sine lege principle enshrined in Article 38 of the Constitution, the acts that are prohibited and the corresponding penalties must be designated by law in a way that will give rise to no doubt, and the relevant statutory provision must be clear, comprehensible and set precise limits. This principle intended for ensuring individuals to know beforehand the criminal acts aims at protecting the fundamental rights and freedoms.

However, no matter how clear and comprehensible the provisions where criminal acts and penalties are prescribed, they may be nevertheless required to be interpreted by judicial bodies. However, such an interpretation must not infringe the very essence of the given provision and must be foreseeable. It should be also borne in mind that notably in terms of terrorist offences, there is no universally accepted definition of terror or terrorism. However, in cases where terrorist offences are under prosecution and penalised, this situation must not be construed in a manner which would hamper the safeguards inherent in the nullum crimen, nulla poena sine lege principle, set forth in Article 38 of the Constitution.

In assessing the issues related to the criminal acts or penalties with respect to all offences including the terrorist ones and notably determining which acts constitute an offence, the judicial bodies must refrain from acting in an unforeseeable manner which would render dysfunctional the nullum crimen, nulla poena sine lege principle.

In Turkish law, a structure may be qualified as a terrorist organisation only through a court decision. The assessments that the FETÖ/PDY is an armed terrorist organisation, which have been made by the investigation authorities and judicial bodies, are not limited merely to those made during the investigations and prosecutions conducted in the course and aftermath of the coup attempt. Also at various dates before the coup attempt, those who were considered to be a member of the FETÖ/PDY and to have committed offences within the scope of the activities of this organisation were subject to investigations by judicial authorities. As a matter of fact, some of these investigations and prosecutions were brought before the Court through the individual application mechanism.

The organisational acts performed by the members of the FETÖ/PDY during the period when there had yet been no decision whereby it was classified as a terrorist organisation by the judicial bodies or when such decisions had not been finalised yet should not necessarily be interpreted as not constituting an offence. In this sense, a criminal syndicate may be an illegal structure founded originally to commit criminal acts. However, in some cases, a lawfully-operating non-governmental organisation may also subsequently degenerate into a criminal syndicate and even into a terrorist organisation. Accordingly, although a structure, which has already existed but has not been known to public yet due to the absence of a decision to that end, may be qualified as a terrorist organisation only through a court decision, the leader, heads or members of this structure would be held accountable under criminal law as from its foundation date or the date when the structure originally founded for legitimate purposes turned into a criminal syndicate.

In several judgments, the judicial bodies have acknowledged that the FETÖ/PDY is a terrorist organisation which has aimed to take over the constitutional institutions of the State and to subsequently re-design the State, society and individuals in line with its own ideology, as well as to steer the economy, social and political power by the hand of a class having oligarchic characteristics and which has, to that end, organised in parallel to the official administrative system; and that this organisation was the perpetrator of the coup attempt staged on 15 July 2016.

However, in cases where persons claim that they are not aware of the terrorist nature of the formation or structure of which they are allegedly a member, the judicial bodies primarily consider that the offence of membership of an armed terrorist organisation requires direct intent and then assess whether these persons may avail themselves of the provisions on unintentional actions, which are set forth in Article 30 of the Turkish Criminal Code no. 5237. In such an assessment, the positions of given persons within the structure qualified as a terrorist organisation, the nature of imputed criminal acts and the question whether they were aware of the real purpose pursued by that organisation, as well as of its terrorist-related activities conducted, during the period when the imputed criminal acts were performed are taken into consideration. In this sense, in determining the criminal liability within the scope of the FETÖ/PDY-related proceedings, the inferior courts, notably the Court of Cassation, take into consideration the contribution provided by the suspects, without knowing its illegal nature, to this structure and its activities so as to facilitate its expansion and institutionalisation in the social and economic areas.

In this framework, the Court has already dealt with the alleged violations of the right to personal liberty and security due to unlawfulness of the applicants’ detention on remand in some of the individual applications lodged with respect to the FETÖ/PDY-related investigations and prosecutions.

In the present case, the applicant also complained that he was convicted on the basis of certain acts performed by him such as depositing money with a bank, enrolling his children to a school, being a member of an association and attending peaceful meetings/conversations. However, regard being had to the decision on conviction, it has been observed that the applicant’s conviction was indeed based not on these acts, contrary what he has claimed, but rather on his use of ByLock app..

The incumbent court ordered the applicant’s conviction not due to his use of ByLock but his membership of an organisation. His use of ByLock app. was regarded, by the court, as evidence confirming his membership of the said organisation.  In this sense, the Court has already examined, but found no violations with respect to, the allegations that any data from ByLock app. was obtained unlawfully in the absence of a legal basis and that ByLock could not be relied on as a sole or decisive evidence in ordering conviction.

Besides, the judicial bodies conducted necessary researches, examinations and assessments as to the veracity and reliability of the digital materials related to ByLock. The data submitted to the judicial bodies were analysed and interpreted by technical units. The applicant was also provided with the opportunity to challenge both the veracity and the use of evidence proving his being a user of ByLock app., as required by the principles of equality of arms and adversarial proceedings. 

As for the existence of the FETÖ/PDY, the court considered the aim pursued by this organisation, its action plan, as well as the issue whether it resorted to violence while following that plan. As stated by the court, the offence of membership of an armed terrorist organisation may occur only when there is an organic relationship with the organisation as well as the acts and actions that must, in principle, represent continuity, diversity and intensity have been committed.

Having considered all characteristics of ByLock app. as well as its features distinct from those of other commonly-used applications, the court reached the conclusion that ByLock was an application put into service for the exclusive use of the FETÖ/PDY members since the beginning of 2014 when it started to be used; and that the organisation members used it, from the very beginning, to conceal their identities and ensure organisational communication. The court accordingly concluded that the applicant’s imputed act, his use of ByLock app., was of organisational nature and involved continuity, diversity and intensity.

The court also considered that as the applicant had used ByLock app., which had been designated for the FETÖ/PDY members so as to maintain intra-organisational communication, for organisational purposes, he had been aware of the criminal purpose pursued by that structure. Therefore, the applicant’s defence arguments were disregarded by the court. It has been observed that these interpretations by the inferior court did not extend the scope of the act criminalised by the law-maker in a way that would be in breach of the nullum crimen, nulla poena sine lege principle. Nor did they infringe the very essence of the provision with respect to the membership of an organisation, and they were also foreseeable. The court also acted in a foreseeable manner in elucidating the particular circumstances of the imputed act and paid due diligence in ascertaining the nature of the criminal act. Accordingly, the inferior court’s conclusion that the applicant was, for using the organisational app. ByLock for organisational purposes, in a position to know this structure’s intent to commit offences, as well as the elements of the imputed offence of membership of an organisation was not unfounded.

Consequently, the Court has found no violation of the nullum crimen, nulla poena sine lege principle.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.