Individual Application

The Facts

The applicant, convicted of the offence of having attempted to alter the constitutional order in connection with the event known as the Madımak incidents, which resulted in the death of 35 people, was sentenced to capital punishment, and the conviction became final as the Court of Cassation upheld this decision. The capital punishment imposed on the applicant was commuted to life imprisonment with a subsequent judgment; thereafter, pursuant to the decision of the assize court, the life imprisonment was converted into aggravated life imprisonment and it was decided that the sentence should be executed as such. The applicant’s request to avail himself of the Reintegration of Offenders into Society Act (Law no. 4959) was dismissed by the additional decision of the assize court, which was later upheld by the Court of Cassation. The committal order indicated that the applicant had been sentenced to aggravated life imprisonment and that the nature of the execution of this sentence fell within the scope of Law no. 5275 on the Execution of Penalties and Security Measures.

The applicant claimed that he had not committed any offence on behalf of any organisation, that the committal order issued without applying the provisions related to parole was erroneous and that the execution should be carried out in accordance with Article 107 of Law no. 5275, and requested that the error in the committal order be corrected. The execution judge held that the applicant’s request be dismissed, stating that the applicant could not avail himself of the provisions related to parole on the grounds that the sentence to be executed was related to terrorism. The applicant challenged the decision of the execution judge, claiming that his application had been dismissed without providing any justification and without any assessment of the allegations he had put forward. Having assessed that the decision of the execution judge complied with the procedure and the law, the assize court dismissed the appeal with final effect.

The Applicant’s Allegations

The applicant maintained that the nullum crimen, nulla poena sine lege principle had been violated due to the issuing of a committal order without implementing the provisions relating to parole.

The Court’s Assessment

In the present case, the subject matter to be addressed is whether the provisions on parole are applicable to the aggravated life sentence imposed on the applicant. Provisional Article 2 of Law no. 5275 and Article 17 § 4 of Anti-Terror Law no. 3713 provide that terror offenders whose capital punishment sentences have been commuted to life imprisonment, as in the applicant’s case, cannot be subject to the provisions on parole. In ascertaining whether these provisions may be applied, what must be taken into account is not whether the act committed is a terrorist act, but whether the perpetrator is a terror offender. Law no. 3173 defines the concepts of a terrorist offence and a terror offender separately. Pursuant to Article 2 of Law no. 3713, the term “terror offender” includes persons who are members of organisations established to pursue the objectives set out in Article 1 of this Law, and who commit offences in accordance with these objectives, either jointly or alone, or who are members of the organisations even if they do not commit the intended offence, or who commit offences on behalf of these organisation even if they are not members thereof.

Accordingly, in order to be deemed a terror offender, a person have to be either a member of an organisation established to pursue the objectives laid down in Article 1 of Law no. 3713 or commit offences on behalf of such organisations. However, it is observed in the present case that the decision convicting the applicant did not indicate that he was a member of any organisation or he did commit any offence on behalf of them. No mention of an organisation referring as the instigator or perpetrator of the offence was made and no concrete link was established between the applicant and any organisation. Although the conviction under Article 146 of the repealed Law no. 765 and the decision of the Court of Cassation quashing the first conviction stated that the acts in question had been carried out within an organisation, no concrete finding was included regarding the existence of an organisation and no assessment was made that would invalidate the conclusions of the first conviction decision concerning the absence of an organisation. To the contrary, these decisions indicated that the existence of a previously founded organisation or gang, whether armed or not, was not a necessity to establish the elements of the offence under Article 146 of repealed Law no. 765.

Furthermore, although it was alleged in the case against the defendants, including the applicant, pursuant to Law no. 3713, that the defendants had jointly established an organisation with the aim of realizing the objectives listed in Article 1 § 2 of Law no. 3713, no assessment as to the organisation was provided in the conviction decision based on this legal provision.

In accordance with Article 220 of Law no. 5237, there must be a hierarchical structure and continuity for an organisation to exist. It is evident that the new definition introduced for the term “organisation” is more favourable to the applicant than the former definition laid down in Article 1 of Law no. 3713. This was because, in the present case, no hierarchical connection between the convicted persons could be established, and the perpetrators of the offence acted together to commit a single offence of altering the constitutional order. Therefore, in accordance with the principle of retroactivity of the more favourable law, it is essential that the trial court convicting the applicant should have established whether there was such an organisation in order to determine whether the applicant can avail himself of the provisions on parole. However, no explanation was provided by the execution judge regarding these matters, and the term terror offender in the relevant laws and the provisions on parole was interpreted in an unforeseeable manner that contradicts the essence of the article.

Consequently, the Court has found a violation of the nullum crimen, nulla poena sine lege principle.