Individual Application

The Facts

An investigation was initiated by the Ankara Chief Public Prosecutor’s Office in 2011 regarding the acts committed by the applicants, who are retired military officers, during the 28 February period. Indictments were issued against the applicants in these investigations, known to the public as the 28 February investigation, seeking their punishment. Following the trials held in the assize court, the applicants were convicted for forcibly removing or preventing the Cabinet of the Executive Ministers of the Republic of Türkiye from performing their duties, or encouraging such acts, as defined in Article 147 of the repealed Law no. 765. The applicants’ appeals on points of facts and law against this decision were dismissed on the merits. The applicants then appealed this decision on points of law and requested the annulment of the impugned decision. The Court of Cassation, examining the appeal, decided to reject the applicants’ appeal on the merits and upheld the conviction.

The Applicants’ Allegations

The applicants primarily maintained that the principle of nullum crimen, nulla poena sine lege had been violated due to being punished for an act that does not constitute an offence; their right to a fair hearing had been violated due to the use of unlawfully obtained evidence for conviction; the principle of the natural judge had been violated as the trial was not held in the Supreme Criminal Tribunal; and the non bis in idem principle had been violated.

The Court’s Assessment

A. As Regards the Alleged Violation of the Nullum Crimen, Nulla Poena Sine Lege Principle

The inferior court dismissed the defence arguments that the accused’s actions were not capable of producing the result, did not involve coercion and violence, and that the Government resigned voluntarily. It was further accepted that the offence had been completed due to the occurrence of harmful consequences rather than remaining incomplete or at the attempt stage. Additionally, the court rejected the objections of the defence counsels regarding the completed offence not being regulated as an offence under Article 312 § 1 of Law no. 5237, and that the act subject to trial could not be penalised in accordance with the principles of legality and specificity.

The inferior court found no overt or covert orders to the military authorities through a directive or circular had been issued. The reasoned decision further stated that laws and by-laws did not grant any element of the Turkish Armed Forces (TAF) the authority to overthrow the democratic order.

The applicants challenged their conviction for an offence that lacks elements of coercion and violence, claiming their actions were in accordance with the law and their legally defined duties, rather than assessments regarding the application of the law in their favour.

Determining the scope of criminal liabilities and whether the elements of the offence are constituted, or the degree of the corresponding penalty is the duty of inferior courts. As required by the nullum crimen, nulla poena sine lege principle, the interpretations by inferior courts within the scope of this assessment must not infringe the essence of the provision defining the offence and the penalty and must be foreseeable. In the examination conducted within the scope of the applicants’ allegations, it cannot be said that the inferior court’s assessments regarding the acts subject to trial not being within the scope of duty and the constitution of the elements of the offence were baseless, inconsistent with the essence of the offence, and unforeseeable.

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

B. As Regards the Alleged Violation of the Right to a Fair Hearing

In the present case, the applicants’ allegation that the compact disc (CD) no. 5 was counterfeited was substantiated by both an expert report and expert opinion. The expert opinion prepared during the prosecution phase concluded that the CD no. 5 was acquired in violation of Article 134 of Law no. 5271, alongside other regulations, and international standards. Similarly, the expert report produced during the prosecution phase found that the CD no. 5 did not comply with the provisions of the aforementioned article of the Law from a digital forensics perspective.

Article 134 of Law no. 5271 regulates the procedures for searching computers, computer programmes, and records, as well as for backing up and provisionally seizing them. In its reasoned decision, the inferior court reviewed the expert reports and clarified that the regulation in Article 134 of Law no. 5271 pertained to searches in the defendants’ computers, computer programmes, and records. Consequently, the inferior court acknowledged that applying the aforementioned article to the digital evidence presented by the parties under the principle of circumstantial evidence was not feasible, and further recognised that the CD no. 5 provided by the complainant had been obtained lawfully. The Chamber’s upholding judgment did not include any assessment regarding how the mentioned CD was obtained.

Given the inferior court’s statements, it cannot be definitively asserted that the CD no. 5 was obtained unlawfully, nor can it be asserted that an evaluation of unlawfully obtained evidence pertaining to the mentioned CD and its contents was carried out.

The inferior court also declared that the documents on the CD no. 5, verified by those whose names and signatures appear in the signature block and presented by multiple complainants, dispatched from official institutions such as the Turkish General Staff and the General Secretariat of the National Security Council (NSC), and personally submitted by the defendants, would be recognised as evidence. Therefore, it was stated that documents whose authenticity and reliability were unquestionable would serve as evidence.

Moreover, the judgment of the Court of Cassation’s Criminal Chamber noted that documents from the CD’s contents, which are not decisive in essence and are based on factual grounds, were incorporated as the basis for the judgment. Consequently, upon reviewing the reasoning of the inferior court’s decision and the Chamber’s relevant assessment, it is understood that the evidence in question was neither the only nor the decisive evidence for the applicants.

Consequently, the Court has found no violation of the right to a fair hearing.

C. As Regards the Alleged Violation of the Principle of the Natural Judge

Article 148 § 7 of the Constitution stipulates that the Chief of General Staff, and the commanders of the land, naval, and air forces shall be tried in the Supreme Criminal Tribunal for offences relating to their duties. This provision clearly establishes the principle of the natural judge.

The requests for a decision of non-jurisdiction stating that the trial should have been conducted in the Supreme Criminal Tribunal were evaluated on 3 September 2013. This evaluation recognised that the offences attributed to the accused were not pertinent to their duties, highlighting the nature of the offence as per Article 148 of the Constitution.

However, the inferior court concluded that the Chief of General Staff, and the commanders of the land, naval, and air forces would be subject to trial in the Supreme Criminal Tribunal for offences relating to their duties as per Article 148 § 7 of the Constitution, interpreting “offences relating to their duties”. In this context, it emphasised that certain offences could not be deemed as part of a public official’s duties and could not be considered as having been committed by virtue of their duties. The inferior court, within these conclusions, stated that for an offence to be deemed to have been committed by virtue of duty, there must be a causal link between the acts subject to trial and the duty, and these acts must be related to the duty, and must have been executed by taking advantage of the opportunities provided by the duty. As a result, the inferior court acknowledged that although it was evident that the offence subject to trial was committed by using the convenience, advantage, and opportunity provided by the duty, it could not be classified as having been committed within the scope of duty.

In this case, it is necessary to determine whether the inferior courts have made their assessments regarding the constitutional provisions regulating the duties of the Supreme Criminal Tribunal, taking into account the interpretations of the Constitutional Court on this matter. This determination was made in light of the Court’s interpretation of “offences relating to their duties” in Article 148 of the Constitution, interpreted as acts subject to trial being related to duty and the powers arising from the duty being executed in violation of the legislation.

The Court grounded its interpretation on two criteria. According to the first criterion, establishing a connection to duty requires that the act subject to the imputation of an offence must be related to a task or activity deemed within the scope of the public official’s duty as per legislation. The second criterion mandates that the act connected to duty is executed by deviating from the legislation pertaining to the performance of the duty. In the present case, the interpretation by the inferior courts and the Criminal Chamber of the Court of Cassation that the offence was not related to duty was found not to violate the principle of the natural judge.

Consequently, the Court has found no violation of the principle of the natural judge.

D. As Regards the Alleged Violation of the Non Bis in Idem Principle

In the present case, witness and complainant statements, as well as documents from relevant institutions and digital documents obtained following the decision of non-prosecution, were recognised as new evidence. Given that a portion of this evidence emerged shortly before the investigation began, it is recognised that conducting a second trial for acts subject to the decision of non-prosecution due to the discovery of new evidence constitutes an exception to the aforementioned principle.

Furthermore, Article 172 § 2, in force at the time of the incident, of Law no. 5271 did not preclude the initiation of a criminal case after the new evidence was discovered following a decision of non-prosecution. Similarly, as per Article 173 § 6, in force at the time of the incident, of the same Law, the legislature has conditioned the opening of a criminal case, even in the presence of new evidence, on the contrary decision of the assize court that rejected the appeal against the earlier decision of non-prosecution. Although the non bis in idem principle encompasses the right not to be prosecuted or tried more than once, the fact that the decision of the Istanbul 12^th Assize Court of 19 July 2013 was rendered before the trial began, it cannot be concluded that the deficiency was rectified in violation of the law.

Consequently, the Court has found no violation of the non bis in idem principle.