November 29, 2024
By Kerem Altiparmak and Rumeysa Budak
On 27 August 2024, the Second Chamber of the European Court of Human Rights (ECtHR/the Court) ruled that the principle of no crime and punishment without law (Article 7 ECHR) was not violated for the applicant Şaban Yasak, who was prosecuted and sentenced to imprisonment for membership of an armed terrorist organisation, named as FETÖ/PDY (Fetullahçı Terör Örgütü / Paralel Devlet Yapılanması) by the Turkish Government, following the 15 July coup attempt in Türkiye.
In a recent blog post published on Strabourg Observers, Mr Yasir Gökçe criticised the Yasak judgment for disregarding sociopolitical realities in Türkiye at the time andthe Court’sflawed assessment of evidence in the case. This blog post aims to look at the same decision from another perspective. This blog post will try to illustrate that the Court’s failure to address some of the issues left unanswered by the Court in its previous judgments concerning terrorism offenses, which were not problematic in those judgments, has led it to disregard the principle of the non-retroactivity of crimes and punishments in the Yasak judgment.
The judgment has taken its place as a controversial finding among a large number of Turkish cases on charges of membership of an armed terrorist organisation that the Court has been reviewing since 2016. In the last few years, the Court has had to rule on numerous applications in which judges (Alparslan Altan; Bas; Turan and Others; Aydın Sefa Akay), journalists (Sabuncu and Others; Tas; Ahmet Husrev Altan; Bulac), human rights defenders (Taner Kilic (no. 2)) and politicians (Demirtas (no. 2); Yuksekdag Senoglu and Others; Yüksek) have been prosecuted for ‘membership of an armed [terrorist] organisation’ (Article 314 of the Turkish Criminal Code/Article 314 of the TCC). In Yalçınkaya v. Türkiye, the Grand Chamber stated that as of September 2023, there were 8000 ByLock-related cases pending before the Court (§ 414). However, this number might be just the tip of the iceberg. Indeed, considering that 1768530 investigations and 492540 prosecutions were initiated for membership of a terrorist organisation in Türkiye between 2016 and 2021, it would not be wrong to predict that Türkiye’s human rights problem concerning complaints regarding membership of a terrorist organisation will keep the ECtHR busy for a long time.
Even though it has previously found related activities like ‘acting on behalf of a terrorist organisation’ (Isikirik, § 70) and ‘aiding and abetting’ (Imret (2), § 59; Bakır and Others, § 69) to be unforeseeable, the Court has sidestepped the question of whether the central charge of ‘membership of a terrorist organisation’ is sufficiently and precisely drawn to enable an individual to foresee what actions would count as a crime under the article. As this blog attempts to show, the Court’s failure to tackle this key aspect has resulted in judgments that seem to contradict one another and lack coherence.
To understand the problems the recent Yasak v. Türkiye judgment contains, in this blog post we will first recall the case law of the Court concerning membership to terrorist organisation before and after the Grand Chamber’s judgment in Yalçınkaya. Then, we will discuss whether the issues left open in Yalçınkaya and its predecessors have been resolved in accordance with the Convention in the Yasak judgment.
Article 314 §§ 1 and 2 of the Turkish Criminal Code provides for the offense of membership of an armed organisation, punishing anyone who forms or leads such a group with a prison sentence of 10 to 15 years, and to five to 10 years for members of the group. As noted by the Venice Commission neither this article nor the Criminal Code define the concepts of an ‘armed organisation’ and an ‘armed group’. However, the qualifying criteria for a criminal organisation have been set out in the case-law of the Turkish Court of Cassation. Regarding ‘membership of an armed organisation’, the Court of Cassation takes into account the continuity, diversity and intensity of the acts attributed to the suspects to determine whether those acts prove that the suspect had an ‘organic relationship’ with the organisation or whether the acts may be considered to have been committed knowingly and willingly within the ‘hierarchical structure’ of the organisation. (Venice Commission, §§ 98-100)
Until Yalçınkaya, claims regarding the legality of the crime of membership of a terrorist organisation were examined in the context of complaints regarding the pre-conviction stages of criminal proceedings. In these applications, the ECtHR, instead of finding Article 314 of the TCC, which punishes membership of a terrorist organisation, unforeseeable, concluded that the national judicial authorities had adopted a broad interpretation of the offences provided for in Article 314 §§ 1 and 2 of the TCC, contrary to the criteria set out in the Court of Cassation judgments and therefore concluded that the principle of legality had been violated on account of the failure to consider the interpretation and application in the applicants’ case of the provisions governing terrorism-related offences. (Demirtas (2), §§ 278, 281; Yüksek, § 91)
Unlike previous applications against Turkey in which the applicants were accused of membership of a terrorist organisation, an application by a jailed teacher, Yüksel Yalçınkaya, concerned a final conviction for the first time and the Court examined this application under Article 7, not under Articles 5 and 10.
The applicant, Mr Yalçınkaya, was arrested and sentenced to imprisonment following the 15 July 2016 coup attempt for his alleged Gulen movement connections on the charge of membership of what the Turkish government refers to as the FETÖ/PDY armed terrorist organisation. The conviction of the applicant in the Turkish domestic courts was mainly based on the allegation that he was a user of ByLock, an encrypted messaging application, which was allegedly used by this organisation. The subsidiary evidence was his bank account and trade union membership, which were both legal at the relevant time, and the statement of a secret witness.
The Grand Chamber has placed the ByLock evidence at the centre of its Article 7 examination and has set out its jurisprudence on ByLock-based armed terrorist organisation membership trials in accordance with the principle of no crime and punishment without law. As stated in previous cases, the Grand Chamber determined that Article 314 § 2 of the Turkish Criminal Code (TCC), especially when considered alongside the Prevention of Terrorism Act and the established case-law of the Court of Cassation, was formulated with sufficient clarity. In principle, this combination provides enough precision for an individual to understand—if necessary, with the help of appropriate legal advice—what actions or omissions might render them criminally liable (§ 249).
However, having concluded that the provision was foreseeable the Court went on to examine the implementation of Article 314 in the applicant’s case. The applicant had two other complaints concerning the compatibility of his conviction with Article 7. Firstly, in his application to the Court the applicant claimed that the FETÖ/PDY had not been recognised as an ‘armed terrorist organisation’ at the time of the acts attributed to him. He also argued that he had been convicted on the basis of lawful acts following an extensive interpretation of the relevant laws.
The Court decided not to examine the first complaint on the grounds that ‘the rule in Turkish law regarding the legal designation of a terrorist organisation does not have the effect of precluding the criminal liability of the founders or members of the organisation for acts undertaken before such designation, to the extent that they acted “knowingly and willingly”’ (see §§ 84, 163, 165 and 187 above). What is interesting here is the Court’s failure to explain the meaning of ‘they acted knowingly and willingly’ – a point we will return to in the discussion of the Yasak judgment.
Focusing on Yalçınkaya’s second complaint, the Court emphasised that it would examine whether the domestic courts had made a foreseeable interpretation of the moral element, one of the founding elements of the alleged crime (§ 260). The Court found that there was no explanation by the domestic courts as to how the mere use of ByLock, irrespective of what that use had actually entailed, led directly to the conclusion that the applicant knew that the FETÖ/PDY harboured terrorist aims that it intended to achieve by the use of force and violence, or that he had submitted himself to the will of the FETÖ/PDY, possessed the specific intent for the realisation of its purposes, and participated in its activities as a part of its hierarchy, or made any other concrete material or mental contribution to the organisation’s actual existence or reinforcement, as required under national law (§ 263). Noting that an automatic presumption of criminality was attached to the ByLock evidence in a way that made it almost impossible for the applicant to acquit himself of the relevant crime (§ 268), the Court concluded that although the crime of membership of an armed terrorist organisation under Turkish law requires the existence of specific intent, an unforeseeable judicial interpretation contrary to Article 7 was made by setting aside especially the moral element of the relevant crime (§ 271).
Under Article 46, the Court also stated that the shortcomings in the approach to ByLock evidence identified in the present judgment should, to the extent relevant and possible, be addressed by the Turkish authorities on a broader scale. (§ 418).
Having reached this conclusion, the ECtHR did not find it necessary to return to the question it had left unanswered, namely whether the FETÖ/PDY had been recognised as an ‘armed terrorist organisation’ at the time of the acts attributed to the applicant. In fact, the Yalçınkaya judgment raised just as many questions as it answered.
The failure of the Court to address key elements in the Yalçınkaya case has important implications for its judgment not to find a violation of Article 7 in the case of Yasak v. Türkiye.
The case concerns the conviction of membership of a terrorist organisation of Şaban Yasak, accused by witnesses of having acted in the hierarchy of the Gulen Movement (the then name of FETÖ/PDY) as a university student in the period 2011-14 by tutoring other university students and holding religious conversations in student houses. In his application, Mr Yasak argued under Article 7 of the Convention that his conviction was based on non-criminal acts unrelated to the 2016 coup attempt and occurred at a time when FETÖ/PDY was not yet recognised as an armed terrorist organisation but a religious movement by Turkish Government. He also argued that the relevant laws were interpreted broadly and thus he was convicted for his legal acts (§ 152).
In its judgment, the Court stated that it would not examine whether FETÖ/PDY was an armed terrorist organisation at the time of the alleged acts, as in Yüksel Yalçınkaya, since this was not the main problem in the present case (§ 155).
Regarding the material element of the offense, the Court referred to the witness statements in which various acts (using code names, tutoring students, HTS recordings[i] with witnesses) came together, thus meeting the requirements of continuity, diversity and intensity (§ 163). The Court argued that these were not legal acts as the applicant claimed, that the applicant met with students to broaden the support network of the organisation, and that there were also illegal activities of the members of the organisation such as stealing university entrance exams (§ 164). It should be noted here that the applicant’s file did not contain any evidence of the act or offense of stealing questions as charged by the domestic courts.
In terms of the moral element of the crime, the Court stated that although there were no acts of violence attributed to FETÖ/PDY between 2011 and 2014, the applicant was in a position to foresee that the acts attributed to him fell within the scope of participation in an illegal organisation and were therefore illegal, as he carried out high-level activities within the secret structure of the organisation (§ 171). The Court concluded that the element of special knowledge and intent, which is one of the moral elements of the crime, was demonstrated by a large number of acts that were carried out in secret, as shown under the heading of material element (§ 175).
In light of all this, the Court found no violation of Article 7, noting that the material and moral elements of the crime were sufficiently established by the domestic courts (§ 180).
The Yasak judgment paves the way for disregarding the principle of non-retroactivity of criminal law in membership to terrorist organisation cases for three interrelated reasons. Firstly, the Court did not see any problem with the textual foreseeability of Article 314 of the TCC in Yasak. In all Article 314 cases, including Yasak, the Court assumed that the rather vague text of Article 314 of the TCC had been clarified by the Court of Cessation. This clarification is ensured mainly by ‘continuity, diversity and intensity of different acts’ test. But, is it really so?
As thousands of pending and decided applications before the ECtHR show, the interpretation of the ‘continuity, diversity and intensity of different acts’ test by national courts is entirely unclear. The ECtHR has so far ruled in numerous applications that courts in Turkey violate the principle of legality because they do not comply with the criteria developed by the Turkish Court of Cassation. So much so that the ECtHR has started communicating applications to the Government under Article 314 in groups of 200 (see Berber and Others, Ateş and Others, Türkhan and Others ). How many times does the Court really need to find a violation before it decides that Article 314 is not foreseeable?
Secondly, similar to Yalçınkaya, in Yasak the applicant had two other complaints concerning the compatibility of his conviction with Article 7. First, he claimed that the FETÖ/PDY had not been recognised as an ‘armed terrorist organisation’ at the time of the acts attributed to him. He also argued that he had been convicted on the basis of lawful acts following an extensive interpretation of the relevant laws. As in Yalçınkaya, in Yasak, the Court decided to leave aside the matter of retrospective designation of FETÖ/PDY as a terrorist organisation and instead start its examination from the applicant’s second claim (§155).
However, there is a crucial difference between these two cases. In Yalçınkaya, the Court decided that the principle of legality was violated in its examination of the second claim raised by the applicant. Indeed, as merely downloading an application on the mobile phone was not adequate to meet the ‘continuity, diversity and intensity of different acts’ test, there was no point in returning to the first claim of the applicant. Yet, since the Court found in Yasak that his activities had satisfied the ‘continuity, diversity and intensity’ test, it became all the more important that the Court address the applicant’s first claim.
In Yasak there is no legal basis for the Court to leave the applicant’s second claim unanswered. Even assuming that meeting with students in order to broaden the support network of an organisation, using code names, tutoring students are criminal activities, stealing exam questions, which the applicant denied are illegal, are they adequate to call the applicant a ‘member of a terrorist organisation’? The applicant was not convicted of stealing questions or organising meeting with students. The applicant was convicted for membership of a terrorist organisation. The existence of the former cannot be evidence of the latter. In order for a person to be a member of a terrorist organisation, it must first be established that the organisation was a terrorist organisation at the time the applicant committed the crime.
Even if we accept for a moment that what the applicant did was unlawful, does a person who is part of a group that engages in unlawful activities have to foresee that this organisation will one day resort to violence and turn into a terrorist organisation? In the case of Yasin Özdemir v. Türkiye, the Second Chamber found that the conviction of Mr Özdemir after the coup attempt due to his social media posts praising and supporting Fetullah Gülen in 2015, one year before the coup attempt, was contrary to Article 10 § 2 and stated that the applicant could not be expected to be aware of the fact that he was glorifying crime and criminals when there were no acts of violence attributed to the movement before the coup attempt (§ 41). In Yalçınkaya, the Court noted that ‘as can be seen from the relevant rulings of the domestic courts, the rule in Turkish law regarding the legal designation of a terrorist organisation does not have the effect of precluding the criminal liability of the founders or members of the organisation for acts undertaken before such designation, to the extent that they acted “knowingly and willingly” (§ 253)’. Did Mr Yasak knowingly and willingly participate in the activities of a terrorist organisation by his acts that took place in between 2010 to 2014? Why should Mr Yasak’s case be different from Mr Özdemir’s?
Third and lastly, in Yasak, comparing to the previous ‘membership to terrorist organisation’ cases, the Court observed that the acts attributed to the applicant had not benefited from the presumption of lawfulness at the time they had been carried out and that they had not fallen within the exercise by the applicant of the rights guaranteed by the Convention (§ 164). If the applicant did not benefit from the presumption of lawfulness, why did the authorities wait so long to initiate a criminal investigation against him? Was broadening the support network of the organisation in 2010 really a criminal activity in 2010? More importantly, can any daily acts not connected to violence but not guaranteed by the Convention be taken into account for the ‘continuity, diversity and intensity of different acts’ test? Where does the ECtHR set the limit to this test? Does the ECtHR consent to the criminalisation years later according to this standard of an everyday human activity carried out years before and not criminalised at the time it occurred?
The Yasak judgment is a ruling that gives the green light to convictions for membership of an armed terrorist organisation for non-violent acts, contrary to the principle of non-retroactivity of criminal law. Indeed, the Turkish judicial authorities, which disregarded the Yalçınkaya Grand Chamber judgment for more than a year, have recently taken steps to turn the Yasak Chamber judgment into precedent. The first and most concrete example of this reflection in domestic law took place during the retrial of Mr Yalçınkaya as a result of the Grand Chamber judgment of the ECtHR. The domestic court re-convicted Mr Yalçınkaya relying on the line of reasonings put in the Yasak judgment. If the Yasak judgment becomes a precedent, this will not be limited to Mr Yalçınkaya. This new approach carries the serious risk of justifying the punishment of many other people for activities carried out years before who have nothing to do with violence as members of a terrorist organisation.
[i] Historical Traffic Search. HTS records include signal information pertaining to the caller, the dialled number, the duration of the call, and the place and the time of the call.
Strasbourg Observers is an academic blog that discusses recent developments at the European Court of Human Rights. The editorial team of Strasbourg Observers is based at the Human Rights Centre of Ghent University and the Centre for Government and Law of Hasselt University.
Strasbourg Observers would not be possible without the valued work of countless guest bloggers. Visit the “Contact” page on our website to find out how to become one!
1 Trackback