Individual Application

The Facts

Upon the denunciation to the police emergency line to the effect that persons having a link with the PKK terrorist organisation had been planning to make an attack, the police found out that an arrest warrant had been already issued with respect to E.Z., one of the persons reported in the denunciation. Then, the police officers went to the given address.  It was observed that the lights were switched on at the house located at the address; that in front of the window, there were two persons who could not be identified; and that these two persons acted swiftly and in panic as soon as they had realised the police officers. As those inside the house refused to open the door, the police officers used force to make the door opened. Inside the house, there were E.Z., O.K. and 12 other persons revealed to be university students, along with the applicant. Having got a burning smell inside the house and seen the smoke coming out of the bathroom, the police officers went to the bathroom and found several documents a large part of which had been already burnt inside the bath.

At the end of the search conducted at the house, several documents pertaining to the PKK terrorist organisation and its affiliated formations, the contents of which would later be explained in detail in the first instance decision, were seized. It was revealed that the impugned documents involved certain comprehensive information regarding the ideology, aims, human resources and methods of the PKK terrorist organisation as well as contained stories, poetry and marches where the members of the PKK terrorist organisation, who had been killed by the security forces, were glorified, and information regarding the responsibilities and conducts of the unarmed members of the organisation.

In line with the information and documents seized, an investigation was launched against E.Z., the applicant and 2 other persons for their alleged membership of the PKK terrorist organisation. Within this scope, the applicant was detained on remand. The trial court considered that the act imputed to the applicant constituted the offence of aiding a terrorist organisation and sentenced him to 6 years and 3 months’ imprisonment. The first instance decision was ultimately upheld by the Court of Cassation.

The Applicant’s Allegations

The applicant maintained that his freedom of expression had been violated on the ground that he had been sentenced for aiding a terrorist organisation due to his holding a meeting where the documents seized and thoughts expressed were classified by the inferior courts as a training activity of the said terrorist organisation.

The Court’s Assessment

In the present case, it must be primarily ascertained whether Article 220 § 7 of the Turkish Criminal Code no. 5237, the provision applied to the applicant’s case, was sufficiently precise and clear to enable him to reasonably foresee the probable consequences of his certain acts.

In democratic societies, it has become necessary to interfere with the acts and actions intended for the achievement of the aims of the terrorist organisations or performed to aid or support them, and the law-makers accordingly adopt a crime and punishment policy. In Turkish law, such acts serving for the achievement of the aims pursued by a terrorist organisation are classified as the offence of aiding a terrorist organisation and criminalised as a separate offence.

In this scope, in the present case, the law-maker does not provide, in Article 220 § 7 of the Code no. 5237, an explanation as to the conducts which may constitute the offence of aiding a terrorist organisation or exhaustively enumerate the probable acts of such nature, but introduces a general and abstract arrangement. The difficulty in foreseeing the terrorist acts due to their changing and developing nature and the wide variety of acts and actions which would amount to an aid to terrorist organisations has urged the law-maker to define this offence as a consequence-based offence (“serbest hareketli suç”).

In the event that an offence qualified as a consequence-based offence due to social needs and the requirements of criminal law discipline is turned into a conduct offence (“bağlı hareketli suç”), it would lead to the decriminalisation of several acts and actions which are not among those exhaustively listed in the law but are likely to lead to the same consequence indicated in the law, thus leaving them unpunished. Like as regards the several other offences, the probable conducts that would constitute the offence of aiding a terrorist organisation -classified as a consequence-based offence- cannot be separately and explicitly enumerated in the law, and such a situation does not per se affect the certainty of the relevant provision.

Given the wideness of the discretionary power exercised by States as to crime and punishment policies regarding fight against terrorism, making a reference, in relation to a sanction prescribed in a provision, to the sanction of another offence, and attributing similar degree of gravity to both offences as a criminal policy –as in the present case– do not constitute a sufficient ground for qualifying the given provision as indefinite. From the standpoint of the principle of legal certainty, such a conclusion is reached on the basis of the question whether the expressions included in the provision allowing for interference with fundamental rights and freedoms as well as the application of the provision are precise and foreseeable for all those who are or who may potentially be in that position. 

The abstract nature, to a certain extent, of a provision which may thus become more comprehensible through legal assistance cannot be per se considered to be in breach of the principle of foreseeability. In this sense, it is undisputed that the term aiding, embodied in the relevant provision, becomes comprehensible at least through a legal assessment or a legal assistance. The lack of a clear definition as to the act of aiding or of an exhaustive list of the acts and actions which might amount to aiding does not render per se the said provision ambiguous. Nor have the practices of the supreme courts made the provision unforeseeable.

The Convention on the Prevention of Terrorism (“Convention”) envisages that for the prevention of terrorism, three separate acts, namely public provocation to commit a terrorist offence, recruitment for terrorism and training for terrorism, be considered to constitute an offence.

In the present case, the applicant contributed to the holding of the impugned meeting which had been classified by the first instance court as a training activity. It is difficult to qualify it as a form of training defined in the Convention. However, it may be said to serve the purpose of soliciting persons to join the PKK terrorist organisation and may be accordingly qualified as “recruitment for terrorism”.  

As set forth in the Convention, with a view to preventing terrorism, states may criminalise any acts and actions in line with their national laws within the scope of their obligations to take effective measures so as to prevent the dissemination of terrorist propaganda in a way that would provoke people to commit terrorist acts, the recruitment for terrorism and the provision of trainings for terrorism.

In the present case, the first instance court reached the conclusion that the applicant’s acts and actions constituted the offence of aiding a terrorist organisation through a comprehensive assessment. The first instance court, dealing with the applicant’s case in several aspects, demonstrated how and on which grounds the seized documents -revealed to contain various information regarding organisational training- were relied on as evidence in the applicant’s conviction for the said offence. It also established that the applicant’s acts served, as a whole, the aim of the organisation. The court plausibly explained the pressing social need underlying the impugned interference with the applicant’s freedom of expression and how it struck the fair balance between the legitimate aims sought to be achieved and the applicant’s freedom of expression. It accordingly concluded that the applicant intending through his acts and actions to incite violence and to ensure proliferation of undemocratic methods had posed a severe threat to democratic order.

In consideration of the grave consequences of terrorist offences on individuals, society and state, the Court has considered that the sentence imposed on the applicant served to ensure a fair balance required to be struck between the society’s right to live in an environment free of terrorism and the applicant’s freedom of expression, thus being proportionate.

Consequently, the Court has found no violation of the freedom of expression.