Individual Application

The Facts

At the material time, the applicant was serving as a senior master sergeant at the Dean’s Office Educational Support Directorate within the Turkish Military Academy (“the Academy”).

The applicant, who was taken into custody on suspicion of violating the Constitution under an investigation conducted by the Chief Public Prosecutor’s Office into the acts carried out at the Academy during the coup attempt, was subsequently detained on remand and later released. He was indicted for committing the imputed offences by going to the Academy in order to take part in coup-related activities upon the orders of İ.P. and K.A., who organised the acts carried out at the Academy after 11 p.m. on the night of the coup attempt; by receiving a firearm that had been randomly assigned to him in order to resist civilians, police officers and anti-coup soldiers who might arrive from outside during transfers made to KHO, a location where no security problem existed and where staff from other units were being transferred as part of the coup attempt, and by remaining inside the Academy, where he awaited assignment of duties within the scope of the attempt, such as reinforcement at the guard posts, guarding entrances, or performing other tasks within the campus, in accordance with the  orders of the group directing the coup attempt.

At the end of the proceedings, the assize court concluded that the applicant’s acts, taken as a whole, constituted aiding the offence of violating the Constitution and sentenced him to 12 years and 6 months’ imprisonment. The subsequent appeals lodged by the parties, including the applicant, as well as by the Chief Public Prosecutor’s Office, were dismissed on the merits by the regional court of appeal. Upon further appeal on points of law, the Court of Cassation upheld the decision dismissing the appeals on the merits.

The Applicant’s Allegations

The applicant maintained that the legal provisions applied in the criminal proceedings against him for the offence of violating the Constitution had been interpreted and applied in an unforeseeable manner, thereby breaching the principle of legality (nullum crimen, nulla poena sine lege).

The Court’s Assessment

In the present case, the assize court established that some of the staff who were present at the Academy on duty, or who had arrived upon being called, left the Academy once they became aware of, or suspected, a coup attempt in view of the extraordinary events they witnessed, in order to avoid being subjected to unlawful orders. The court further noted that although the coup attempt became fully apparent after approximately 3 a.m., orders were nonetheless given, either through general announcements or individually, to unlawfully collect weapons. The court emphasised that some of the staff refrained from obtaining weapons, either because they had not heard the orders or because, despite being aware of them, they chose not to comply. Consequently, the court concluded that those who left the Academy or did not comply with the unlawful order to obtain weapons had not engaged in acts within the scope of the coup attempt and therefore acquitted them of the offence of violating the Constitution.

However, the court found that certain accused persons, including the applicant, had complied with the unlawful order by receiving the rifles distributed to them without ammunition and by waiting for further orders at the time when it had already become clear that the events constituted a coup attempt. The court therefore held that after becoming aware of the coup attempt, the applicant complied with the unlawful order to receive a weapon and remained at the Dean’s Office awaiting further orders, thereby engaging in conduct giving rise to intentional criminal liability for aiding the offence of violating the Constitution.

It should be underlined that the applicant, who served as a staff of the Dean’s Office, was not assigned, either in routine circumstances or in emergencies, to a unit responsible for the security of the barracks. Furthermore, according to his statements at various stages of the proceedings, after arriving at the Academy upon being called, the applicant became aware around 1.30 a.m. of the ongoing coup attempt through the statements of the co-accused Ü.S. and the television broadcasts he watched. In addition, it may be concluded that given his rank, experience and position, he could have assessed that the order to receive a weapon, even if issued by his superior, was unlawful; however, he complied with the said order by receiving the weapon. Accordingly, it is evident that the assize court examined in detail the applicant’s arguments that his conviction had been unforeseeable and, as stated in its reasoned judgment, considered the applicant’s rank, his position within the military hierarchy, his corresponding level of professional knowledge, his age and his conduct in the concrete circumstances of the case in assessing his conduct.

The applicant submitted that the weapon he had received had no ammunition and that he had left it in the office of the co-accused Ü.S. until returning it and had not carried it with him. The assize court and the regional court of appeal emphasised that after becoming aware of the coup attempt and learning that irregular events incompatible with military procedures were taking place at the Academy, some staff left there, while others refused to comply with the order to receive weapons. They further noted that certain accused persons, including the applicant, remained at their duty stations in uniform and waited to carry out the tasks that might be assigned to them after receiving their weapons. In this regard, the courts considered that the weapon had been received by the applicant at a time when it was clear that a coup attempt was under way; that, even by virtue of its intimidating nature, the mere presence of the weapon constituted a sufficient means for the commission of the offence; and that the applicant had received the weapon and kept it within reach in case a new order was issued. Considering all these circumstances together, the trial courts concluded that the applicant’s objections were not capable of influencing the outcome of their assessment. Accordingly, the courts’ findings that the applicant, despite becoming aware that the events constituted a coup attempt after arriving at the Academy on the night in question, complied with the unlawful order to receive a weapon and waited for further orders, thereby aiding the acts of other perpetrators who committed the offence of violating the Constitution; that he thus manifested culpable intent in respect of the offence; that his actions were not within the scope of the performance of duty; and that the constituent elements of the offence had been satisfied, cannot be regarded as an extensive, unfounded or unforeseeable interpretation of the relevant legal provision that would be incompatible with the essence of the offence.

Consequently, the Court has found no violation of the principle of legality.