Individual Application

The Facts

The applicant, participating in a demonstration held in front of a political party’s premises, was taken into custody as a result of the incident broke out, for committing an offence on behalf of a terrorist organisation without being a member of it. He was released after 3 days.

The chief public prosecutor’s office indicted the applicant and four other suspects. The 6^th Chamber of the Diyarbakır Assize Court, authorised by Article 250 of the Code of Criminal Procedure, (“court”) sentenced the applicant to 3 years and 9 months’ imprisonment for the imputed offence. The court also sentenced the applicant to 6 months’ imprisonment for participating in an illegal demonstration and refusing to disperse despite the warnings of the officers; however, it suspended the pronouncement of the judgment.

The applicant’s subsequent appeal against his conviction for committing an offence on behalf of a terrorist organisation without being a member of it was upheld by the 9^th Criminal Chamber of the Court of Cassation.

The Applicant’s Allegations

The applicant claimed that his right to hold meetings and demonstration marches had been violated due to his conviction for committing an offence on behalf of a terrorist organisation without being a member of it due to his attendance at a demonstration march.

The Court’s Assessment

Persons may have connection with a criminal organisation and contribute to the threat posed by it without being a part of its hierarchical structure. Therefore, the law-maker criminalises the act of committing an offence on behalf of a terrorist organisation without being a member of it in Article 220 § 6 of the Turkish Criminal Code no. 5237. In accordance with the joinder rule, the offence of committing an offence on behalf of a terrorist organisation without being a member of it shall be punished separately in addition to the offence committed on behalf of the terrorist organisation.

No restriction is introduced in Article 220 § 6 of Law no. 5237 with regard to the offences committed on behalf of an organisation. However, through a number of legislative amendments, certain offences have been excluded from the scope of committing an offence on behalf of a terrorist organisation without being a member of it.

Since the impugned punishment constituted an interference with a right safeguarded by the Constitution, whether the applicant’s sentence had been foreseeable within the meaning of Article 34 § 2 of the Constitution should be evaluated. In the evaluation of the foreseeability of Article 220 § 6 of Law no. 5237, it should first be noted that the relevant law contains no explanation as to how the phrase “offence committed on behalf of an organisation” embodied in the said provision should be interpreted.

Certain conditions sought for the offence of membership of a terrorist organisation are not sought with regard to a person who is not a member but has committed an offence on behalf of the organisation; however, persons in both categories are punished for membership of the organisation. Thus, individuals are imposed heavy sentences for committing an offence even allegedly bearing little relation to a terrorist organisation.

Besides, in cases where the said offence is related to the exercise of fundamental rights, as in the present case, a strong deterrent effect is created on fundamental rights due to the broad interpretation of the phrase “on behalf of the organisation”. When the criteria sought for conviction in terms of Article 314 § 2 of Law no. 5237 are applied in conjunction with Article 220 § 6, they are extended indefinitely to the detriment of those alleged to have committed offences on behalf of the organisation.

In the present case, as noted by the inferior courts, the applicant did neither inflict violence nor resist the police officers. He merely refused to disperse despite the warnings of the officers. Accordingly, the only unfavourable act attributable to the applicant was his refusal to disperse despite the warnings during a demonstration that had been held contrary to the procedures prescribed by the law and had no longer been peaceful due to violent acts.

The inferior courts accepted that the applicant, who was found not to have been involved in the alleged violent acts, had performed his only unfavourable act -refusal to disperse despite the warnings- on behalf of the organisation, within the latter’s knowledge and in line with its purpose. Therefore, they sentenced him for membership of a terrorist organisation in addition to the punishment prescribed for his actual act.

As seen in the present case, there is no explicit limitation regarding the potential acts on account of which a heavy sentence such as imprisonment shall be imposed as per Article 220 § 6 of Law no. 5237. In this sense, the offence of committing an offence on behalf of an organisation may be deemed to have occurred in case of commission of any offence on behalf of the organisation.

In doctrine, there are considerations that the offences that may be committed on behalf of a terrorist organisation are only those enumerated in Articles 3 and 4 of the Anti-terror Law no. 3713 (absolute and relative terrorist offences). However, in practice, it is held that any offence may be committed on behalf of the organisation, without making any distinction. In order to prevent inconveniences, the legislator, through a series of legislative amendments, has tried to narrow the scope whereby Article 220 § 6 of Law no. 5237 is applied.

It appears that the offences excluded from the scope of Article 220 § 6 of Law no. 5237 are related to the acts falling under the scope of freedom of expression safeguarded by Article 26 of the Constitution in general and the right to hold meetings and demonstration marches safeguarded by Article 34 of the Constitution, which is a special aspect of the former. Thus, it seems that the legislator has sought to prevent the imposition of a heavier sentence than the ones prescribed by the law for expressing thoughts and organising demonstrations.

The wording of Article 220 § 6 of Law no. 5237 that was in force at the material time was so broad, in so far as it is related to the offences that might be categorised as those committed on behalf of the organisation, that it failed to offer sufficient protection against the arbitrary interferences by public authorities, as well as to prevent the punishment of individuals, in an unforeseeable manner, for committing offences on behalf of the organisation in addition to their actual offences.

In the present case, the applicant was sentenced to further 3 years and 9 months’ imprisonment in addition to 6 months’ imprisonment for his refusing to disperse despite warnings of the police officers in the course of the demonstration. It is clear that the relevant imprisonment sentence imposed on the applicant was so severe and grossly disproportionate to the conducts of persons having recourse to no violence. Through the amendments made by the legislator, the objectives such as ensuring criminal justice and reducing the deterrent effect on some fundamental rights could not be achieved.

Article 220 § 6 of Law no. 5237, whereby committing offence on behalf of a terrorist organisation without being a member of it is regulated, as applied with regard to the applicant, cannot be said to be definite by its content, purpose and scope. As a matter of fact, the relevant provision fails to offer a legal protection for the applicant against arbitrary interferences with his right safeguarded by Article 34 of the Constitution. It has therefore been concluded that the interference arising from the application of Article 220 § 6 of Law no. 5237 was not prescribed by the law.

It has also been concluded that the applicant’s right to hold meetings and demonstration marches was violated since his conviction for the imputed offence did not satisfy the lawfulness criterion.

Consequently, the Court has found a violation of the right to hold meetings and demonstration marches and held that the pilot judgment procedure would be applied.