CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 3 décembre 2019

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s780F5245 { border:0.75pt solid #000000; clear:both } .s2ECC6C88 { margin-top:0pt; margin-bottom:0pt; padding-top:1pt; padding-right:4pt; padding-left:4pt } .s4C0F7460 { margin-top:0pt; margin-bottom:0pt; padding-right:4pt; padding-left:4pt; padding-bottom:1pt } .s598389FB { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:14pt } .sF5E1C6CF { font-family:Arial; font-weight:bold; text-decoration:underline; color:#ff0000 } .sE208486F { font-family:Arial; color:#ff0000 } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s99A63BFE { margin-top:0pt; margin-bottom:0pt; text-align:left; font-size:11pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s79DE5897 { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid } .s5243C837 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; font-size:10pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sFD69004D { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s131D63D4 { margin-top:12pt; margin-left:72pt; margin-bottom:6pt; text-indent:-50.45pt; page-break-inside:avoid; page-break-after:avoid } .s7ACB8D74 { margin-top:0pt; margin-left:14.2pt; margin-bottom:0pt; text-indent:14.2pt } .sF3108B01 { margin-top:0pt; margin-bottom:0pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sAADB120E { margin-top:6pt; margin-left:28.35pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s59DEA84 { margin-top:12pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .s907B41D { margin-top:6pt; margin-left:35.45pt; margin-bottom:6pt; font-size:10pt } .s865018E3 { margin-top:6pt; margin-bottom:6pt; text-indent:35.45pt; font-size:10pt } .sABC4C207 { margin-top:12pt; margin-left:21.55pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid } .sA20670C4 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s7BE8DCEA { margin-top:12pt; margin-left:31.75pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sBB355983 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s583D00FA { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s26FF04E7 { margin-top:0pt; margin-left:17.3pt; margin-bottom:0pt } .s64E792FA { margin-top:0pt; margin-left:39.7pt; margin-bottom:0pt } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .s9A418C12 { width:207.96pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block }       SECOND SECTION         CASE OF PARMAK AND BAKIR v. TURKEY   (Applications nos. 22429/07 and 25195/07)     JUDGMENT     Art 7 • Nullum crimen sine lege • Foreseeability • Expansive judicial interpretation inconsistent with domestic case-law and essence of offence as defined by law • Infringement of reasonable limits of acceptable judicial clarification • Retroactive application of more lenient intervening substantive law Art 8 • Private life • Travel ban on accused non-resident maintained automatically over four years, pending the duration of criminal proceedings     STRASBOURG   3 December 2019     FINAL   3/03/2020   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. . In the case of Parmak and Bakır v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Robert Spano, President,   Marko Bošnjak,   Julia Laffranque,   Egidijus Kūris,   Ivana Jelić,   Darian Pavli,   Saadet Yüksel, judges, and Hasan Bakırcı, Deputy Section Registrar, Having deliberated in private on 5 November 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in two applications (nos.   22429/07 and 25195/07) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Turkish nationals, Mr Şerafettin Parmak and Mr Mehmet Bakır (“the applicants”), on 18 May 2007 and 4   June 2007 respectively. 2.     The first applicant was represented by Mr Ç. Bingölbalı, a lawyer practising in İzmir. The second applicant was represented by Mrs E. Yıldız, another lawyer practising in İzmir. The Turkish Government (“the Government”) were represented by their Agent. 3.     The applicants complained under Articles 7, 10 and 11 of the Convention that their conviction lacked a basis in law, as the domestic courts’ extensive interpretation of the relevant provisions of the Prevention of Terrorism Act (Law no. 3713) ran contrary to the principle of nullum crimen sine lege , and thus had infringed their right to freedom of expression and association. The second applicant complained under Article 8 of the Convention that a travel ban imposed on him during the course of the proceedings had been disproportionate and had contravened his right to respect for private life. 4.     On 3 October 2016 the complaints concerning Articles 7, 8, 10 and 11 of the Convention were communicated to the Government and the remainder of the applications were declared inadmissible pursuant to Rule   54 § 3 of the Rules of Court. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicants were born in 1955 and 1963 respectively and live in Denizli, Turkey and Berlin, Germany. 6 .     On various dates between 30 January and 5 July 2002, with no particular frequency, flyers with the hammer and sickle emblem were found distributed in some neighbourhoods in İzmir, featuring slogans in Turkish and Kurdish such as “No to Racism and Chauvinism, Yes to People’s Solidarity”, “Organise against Capitalism, Unionise”, “Only Socialism Can Stop Exploitation”, “Long live the Kurdish People’s Right to Self ‑ Determination”, “Down with the Turkish Fascist State, All Massacres Will be Brought to Justice by Revolution”, “Equal Pay for the Same Work, Wages for Female Workers Must Increase”, and a written declaration to commemorate the 1993 Sivas Massacre, certain passages of which described the Turkish State and its practices against Kurdish people, left ‑ leaning students, hunger striking prisoners in F-type prisons, and socialist journalists as a continuation of fascist practices borrowed from the Ottoman Empire. The same written declaration also invited people to leave their differences arising from national, ethnic and religious backgrounds aside and unite against the “Fascist Turkish State” in a common class struggle. The above-mentioned flyers sometimes had the “Bolshevik Party” ( Bolşevik Parti ) or the “Bolshevik Party of North Kurdistan/Turkey” ( Bolşevik Parti - Kuzey Kürdistan/Türkiye , hereinafter “the BPKK/T”) written in their borders. Police reports were prepared for each of those anonymous distributions and the flyers were collected from the streets. The local police districts sent these reports to the anti-terrorism branch of the İzmir Security Directorate for information. 7.     On 28 June 2002 the İzmir Chief Public Prosecutor’s Office ordered the anti-terrorism branch of the İzmir Security Directorate to investigate the matter and to arrest the perpetrators. 8.     On 9 July 2002 the second applicant was taken into police custody while he was travelling in İzmir with a certain M.D. According to the arrest report, a search warrant had been issued by the anti-terrorism branch of the İzmir Security Directorate in respect of the car in which the applicant was travelling. Nothing other than a camera, several CDs, and audio cassettes were discovered in the car. In their examination of those items, the police considered that no elements of a crime were detected. 9.     On 11 July 2002 Ö.G. and E.Y., who had been taken into police custody as suspects in the course of the same investigation, identified the second applicant as having been introduced to them by a different name by another suspect. 10.     On 12 July 2002 the first applicant was taken into custody by police officers from the anti-terrorist branch of the Denizli police headquarters and a search was carried out in his apartment, where a number of documents were seized, including flyers with “BPKK/T” written in the border, wrapped in a plastic bag, certain editions of the periodicals Çağrı , Güney and Açılım , and a laptop computer belonging to the first applicant. 11.     During an identification parade organised by the police, M.K., a suspect who had been arrested in the course of the same investigation, identified the first applicant as an active member of the organisation BPKK/T. He stated that the first applicant used the code name “Kemal ‑ Nihat”. M.K. later retracted his statements during the proceedings, alleging that they had been obtained under torture. 12.     On 12 July 2002 the anti-terrorist police chief drew up a report summarising the investigation into the alleged activities of the first applicant and other members of the BPKK/T. He noted that there had been flyers containing the organisation’s propaganda scattered throughout various places in İzmir, and that the aim of the organisation was to undermine the constitutional order and replace it with a communist regime. As regards the alleged involvement of the first applicant in the activities of the organisation, he stated that the testimonies of the other suspects, the examination of the documents containing propagandist content found at the first applicant’s and M.K.’s apartment, and the applicants’ silence during their interrogation, which was typical of those involved in illegal organisations, had revealed the first applicant’s involvement with the organisation. 13.     The applicants were subsequently released after their police interrogation. The first applicant was arrested and detained again on 17 July 2002. An arrest warrant for the second applicant was issued on 16   July 2002, and he was taken into police custody on 1 August 2007 at the airport when he was about to leave for Germany, where he resided. 14.     On 6 September 2002 the public prosecutor at the İzmir State Security Court filed an indictment with that court accusing the applicants, inter alia , of membership of an illegal organisation, an offence under Article 168 § 2 of the former Criminal Code. 15.     On 16 September 2002 the İzmir State Security Court requested confidential information from the General Security Directorate with respect to the organisation BPKK/T. 16.     On 1 October 2002, the General Security Directorate sent a file to the İzmir Security Court, explaining that the BPKK/T was a terrorist organisation whose ultimate purpose was to bring about a Marxist-Leninist revolution in Turkey. After briefly describing the genesis of the organisation and its separation from the Marxist-Leninist Turkish Communist Party (hereinafter “the TKP/ML”) in 1981, the General Security Directorate noted, without referring to a source or an event, that the illegal organisation had adopted armed revolution as its method of resistance. It also identified certain legal and illegal periodicals such as Çağrı and Güney as the organisation’s publications. Under the heading “Acts committed by the BPKK/T”, eight acts were listed, all of which were indicated as having taken place on various dates between January 2002 and July 2002. Seven of these acts had been the distribution of anonymous flyers and written declarations in the streets of İzmir (see paragraph 6 above) and of Bursa. The last act described was the arrest of six suspects in connection with the investigation and their possession of some eighty-eight books containing left-wing content. 17.     During the course of the proceedings the applicants denied being involved in the organisation known as the BPKK/T. The first applicant submitted that the documents and the flyers found in his apartment wrapped in a bag did not belong to him, and that he had not engaged in any type of propaganda on behalf of the organisation as alleged by the prosecution. The second applicant submitted that he was residing and working in Germany as a journalist, and that he had come to Turkey for a holiday, during which time he had met the first applicant and his co-accused, M.D. He further submitted that there was no evidence which suggested his involvement with the organisation or that he had done anything contrary to the law. The applicants also denied that they had exercised their right to remain silent during the police interrogation, and maintained that they had in fact cooperated with the authorities from the beginning of the investigation. 18.     At the third hearing on 21 January 2003 the İzmir State Security Court ordered the applicants’ release from detention and imposed a preventive measure prohibiting them from leaving Turkey. The reasons provided by the court were as follows: “Having regard to the nature of the charge against the accused but also to the possibility that the charge could be modified, and to the fact that most of the evidence in the case-file has been collected, the court decides to release the accused from detention on the condition that they are prohibited from leaving the country.” 19.     At the fifth hearing on 21 May 2003 the public prosecutor submitted his opinion on the merits of the case. He maintained that the flyers found in the first applicant’s apartment, as well as other publications with propagandist content, and the fact that the first applicant had used code names in his communications with the co-accused, confirmed the allegation that he had been a member of the BPKK/T. As regards the second applicant, the public prosecutor considered that the fact that he had used a code name in his dealings with the co-accused confirmed his affiliation with the organisation. The public prosecutor therefore asked the court to convict and sentence the applicants under section 7(1) of Law no.   3713. 20.     On 15 July 2003 section 1 of Law no. 3713 was amended so that terrorism would henceforth be confined to acts that were “criminal” and committed “by using violence and coercion”. 21.     At the sixth hearing on 24 July 2003 the İzmir State Security Court found the applicants guilty of being founding members of the organisation in question, and sentenced them to four years and two months’ imprisonment under the first sentence of section 7(1) of Law no. 3713. It also upheld the travel ban in respect of the second applicant. 22 .     The applicants appealed against that decision, inter alia on the grounds that the first-instance court had not offered evidence to prove that they had been involved in acts that could be qualified as terrorist offences which could lead to the conclusion that the BPKK/T was a terrorist organisation. Moreover, there was nothing in the case file that suggested the organisation’s involvement in acts of violence. In a modern democratic society, it was inconceivable to call an organisation a terrorist organisation solely on the basis of its name. The impugned flyers did not have any incriminating statements in them, and in any event they were nothing more than a legitimate exercise of their freedom of thought and expression. The applicants also referred to the new amendments made to Law no. 3713 and submitted that there was a clear tendency on the part of the legislature to exclude non-violent political discourse from being prosecuted on charges of terrorism. 23.     On 8 April 2004 the Court of Cassation quashed the judgment, holding that the first-instance court should have taken into account the recent amendments made to Law no. 3713 in order to determine whether the organisation in question could be qualified as a terrorist organisation within the meaning of the amended section 1. 24.     By Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004, State Security Courts were abolished. The case against the applicants was therefore transferred to the İzmir Assize Court. 25.     The new public prosecutor in charge of the case submitted his observations on the merits of the case and requested that the applicants and the co-accused be acquitted on the grounds that the organisation in question did not correspond to the definition of a terrorist organisation under sections 1 and 7 of Law no. 3713. 26.     On 12 October 2004 the İzmir Assize Court convicted the applicants of membership of a terrorist organisation, this time under the second sentence of section 7(1) of Law no. 3713. It sentenced them to two years and six months’ imprisonment and a fine of 1,666 Turkish liras (TRY). 27.     The applicants appealed against that decision. While the appeal was ongoing before the Court of Cassation, in 2005 new legislation amending the Code of Criminal Procedure came into force. On 10 November 2005 on the basis of these changes the Chief Public Prosecutor at the Court of Cassation sent the case file back to the first-instance court and requested that the latter reconsider the case in the light of the allegedly more favourable provisions applicable to the applicants’ case as provided for by the amendments made to the Code of Criminal Procedure. 28.     On 16 March 2006 the İzmir Assize Court convicted the applicants of being members of a terrorist organisation and sentenced them to two years and six months’ imprisonment under the second sentence of section 7(1) of Law no. 3713. The court firstly gave a summary of the applicants’ defence submissions, the public prosecutor’s observations on the merits of the case, and the evidence in the case file. That evidence included the flyers that had been found in İzmir, as well as the documents, books and periodicals found in the apartments of the first applicant and the other co-accused. The court also listed as evidence the organisation’s alleged manifesto ( tüzük ), which had been discovered in the apartment of a co-accused. Having considered the structure, methods, purpose and activities of the organisation in question, the court concluded that it was a terrorist organisation, contrary to the submissions of the accused and the public prosecutor in charge of the investigation. The court found that the amendments made to section 1 of Law no. 3713, namely the inclusion of the term “using violence and coercion” in the definition of a terrorist organisation, did not exclude situations where an unarmed organisation adopted violence and coercion as its aim, even when its acts only amounted to “moral coercion” ( manevi cebir ). A contrary interpretation of the provision would render its application to unarmed terrorist organisations impossible. The court noted that even though the members of the organisation had not resorted to physical violence, they had used “moral coercion” – such as issuing threats, as was apparent from the confiscated documents – in order to achieve their aims. The court stressed that the organisation’s manifesto and some of the flyers contained statements which were of sufficient gravity to coerce people morally. The relevant parts of the judgment read: “It was understood that after the year 1980 the illegal organisation, TKP/ML, started to experience clashes of opinion among its members, as a result of which a new organisation identifying itself as the Bolsheviks came into existence by having its first congress in 1981 in Germany. After convening in five other congresses, namely in 1982, 1986, 1990, 1994, [and] in their final and last congress of 1996, they named themselves the Bolshevik Party of North Kurdistan/Turkey and declared that their aim was to bring about an armed revolution in Turkey for the leadership of the working class, and for this reason they have engaged in the acts of distributing leaflets and declarations. The accused have participated in realising the organisation’s aims by holding meetings at the organisation’s base and preparing documents to be distributed in İzmir. Moreover, they have distributed and sold the publications Çağrı and Güney – which can be considered the organisation’s legal publications – in order to support the organisation financially. The accused have denied the accusations, in particular the existence of the organisation, and in any event have stated that their acts could not be considered crimes ... since no armed acts had been committed on behalf of the organisation ... The public prosecutor submitted that the organisation in question no longer corresponded to the definition provided for by law, in the light of the recent amendments made to Law no. 3713, and requested that the accused be acquitted. Therefore, what is at issue in the present case is whether the acts of the accused correspond to the amended definition of membership of a terrorist organisation ... In considering whether an organisation qualifies as a terrorist organisation, its structure, working methods, purpose and acts must be taken into account. The amended section 1 of Law no. 3713 requires [the use of] force and violence as an element of terror. It is sufficient for an organisation to adopt force and violence as its purpose to bring [the organisation] within the scope of the Prevention of Terrorism Act. Coercion may just as well present itself as moral coercion. Terror is any criminal act committed for the purpose of achieving the ultimate goals listed in section 1 of Law no. 3713. ‘Purpose’ as worded in this section subsumes the purpose of using violence and force, and therefore envisages [the provision being applied] to unarmed organisations. Any conclusion that is contrary to this reasoning will render the application of the Prevention of Terrorism Act to unarmed organisations impossible, which will pave the way for them to work freely towards their goal of overthrowing democracy and the Turkish Republic. In democracies, people may be given all freedoms except for the freedom to destroy democracy. Since the legislature cannot be presumed to have given licence to organisations whose purpose is to ruin and divide the State, it necessarily follows that unarmed organisations fall within the scope of the law in question. Everyone has a right to freely declare their thoughts and opinions in the public sphere. However, when people establish an organisation to impose their ideas on others with the aim of changing the Constitution and bringing about the cessation of the State through violence and coercion, it can be considered that the constituent element of the crime, namely moral coercion, is presumed. In the light of this general overview, it can be considered that the acts of the accused are those of disseminating propaganda for an already existing organisation by means of distributing leaflets and thereby encouraging membership. [This] evidence obtained during the investigation has clearly revealed the aim which the accused have pursued. The ultimate purpose of the accused is to change the regime of the country by overthrowing the democracy and the Republic through a popular revolution [...] thereby introducing a totalitarian regime based on Marxist and Leninist ideology. [...] On pages 19, 20 and 21 of the organisation’s manifesto ... the Turkish Republic was insulted. [The manifesto] states that Turkey occupies lands that belong to Kurdistan and Armenia, and that the Kurdish people lead a justified resistance movement in North Kurdistan against the unjust and dirty war led by the fascist Turkish Republic. The dead terrorist İbrahim Kaypakkaya is mentioned ... On the following pages, Marxist and Leninist practices are praised and the quasi-feudal capitalist system is mentioned. The last chapter contains the party’s disciplinary procedures ... In a declaration which carries the emblem of the Bolshevik Party of North Kurdistan/Turkey, it is stated ‘the history of the Ottoman Empire reeks of massacres and crimes ... 1.5 million Armenians were massacred ... and the fascist Turkish army is merely a continuation of the Ottoman Empire ... the real enemy is the fascist Turkish Republic ... unite under the red flag of the Bolshevik party in order to overthrow the fascist Turkish Republic with a democratic people’s revolution, and wave the red flag of Bolshevism in cities, castles, farms and mountains so that we can finally throw the fascist Turkish State into the gutters of history ...’ There are many more statements like the ones quoted above. There are many documents which incite people to revolt against the regime and the State and wage war on the Government by taking to the mountains. However, it is not possible to quote all of them in the judgment. They have been identified individually in the present judgment under the category of written evidence. In the light of this examination, it appears that the aim of the Bolshevik Party is to change the regime and bring about the secession of part of the national territory of Northern Kurdistan. It is considered that the organisation has started working towards these aims but has not yet engaged in armed attacks. [However,] the mere existence of such discourse in the organisation’s manifesto and declaration is sufficient to coerce people morally.” 29.     Having regard to the arrest and seizure report, the report based on the identification parade concerning all the accused, the documentary evidence found in the possession of the first applicant and the distribution and possession of the periodicals Çağrı and Güney – identified by the court as legal publications of the organisation – and the illegal periodical Açılım , the court found it established that the applicants were members of a terrorist organisation. The court did not deliberate as to which members had committed which acts, but found it established that the accused had been in contact with each other and that they had held meetings and had carried out acts on behalf of the organisation, and had therefore worked together. In its decision the court further decided to continue the travel ban in respect of the applicants until their conviction became final. 30.     The applicants appealed against that judgment and raised the same grounds of appeal as they had done in their previous appeal (see paragraph 22 above). They further submitted that the trial court’s examination had been insufficient because it had relied solely on the information note provided by the General Security Directorate which classified the organisation as a terrorist organisation without referring to an act of terror committed by the organisation. In that respect, they referred to the judgment of the Plenary Court of Cassation (Criminal Divisions) of 11 March   2003 (see paragraph 45 below) and requested that the definition of both terror acts and terrorist organisations as detailed in that judgment be taken into account. 31 .     In the meantime, relying on the fact that his entire life prior to his arrest had been spent in Germany and that he had no income, place of residence or medical insurance in Turkey to sustain himself, the second applicant had made repeated applications for the measure preventing him from leaving Turkey to be lifted and another measure, such as bail, to be put in place if necessary. He had also submitted in that connection that the measure had become a punishment in itself, having regard to the fact that the duration of the travel ban in question could not be deducted from a prison sentence if he were later convicted. The domestic courts had rejected those applications on 21 May 2003, 24 July 2003, 21 July   2004, 21   September 2004, 12 October 2004 and 16 March 2006, having regard to the stage the proceedings were at and without providing specific reasons with respect to the applicant’s submissions or as regards the need for the prolongation of the travel ban. A similar application by the applicant on 3 March 2004 had gone unanswered by the Court of Cassation. 32.     On 29 June 2006 section 7(1) of Law no. 3713 was amended by Law no. 5532 so that the requirement of the intention to commit a crime, the means of committing it by the use of force and violence, and the methods of pressure fear, intimidation or threats were included in the definition of the offence of founding, managing or membership of a terrorist organisations. Moreover, the penalties for these offences were increased, making them subject to Article 314 of the new Criminal Code. 33.     On 5 October 2006 the Chief Public Prosecutor submitted his observations and asked the Court of Cassation to quash the first-instance court’s judgment on the grounds that the legal status of the applicants and the other accused should be reconsidered in view of the amendments made to section 7(1) of Law no. 3713 on 29 June 2006. 34.     On 25 December 2006, on appeal, the Court of Cassation considered that there had been no change favourable to the applicants in respect of the constituent elements of the offence defined under section 7 of Law no.   3713. It remarked that the penalty corresponding to these offences had now become more severe than that set out in the previous version of the provision. Therefore, it upheld the İzmir Assize Court’s judgment of 16   March 2006. 35.     On 24 June 2009 the travel ban was lifted in respect of the second applicant, having regard to the fact that his sentence had been enforced. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Relevant Legislation 1.     The Criminal Code 36.     The relevant provisions of the Criminal Code (Law no. 765) at the material time provided: Article 168 “It shall be an offence punishable by at least fifteen years’ imprisonment to form an armed gang or organisation or to assume control or special responsibility within such a gang or organisation with the intention of committing any of the offences referred to in Articles 125 ... It shall be an offence punishable by five to fifteen years’ imprisonment to belong to such an organisation.” Article 125 “It shall be an offence punishable by imprisonment for life without possibility of parole to commit any act aimed at subjecting the State or part of the State to domination by a foreign State, diminishing the State’s independence, breaking its unity or removing part of the national territory from the State’s control.”   37.     The relevant provisions of the new Criminal Code (Law no. 5237) at the material time provided: Article 314 “(1) Anyone who forms an armed organisation to commit the crimes listed in the fourth and fifth sections of this chapter, or commands such an organisation, shall be liable to a term of imprisonment of ten to fifteen years. (2) Anyone who becomes a member of an (armed) organisation mentioned in the first paragraph of this Article shall be liable to a term of imprisonment of five to ten years. (3) Other provisions relating to the crime of forming an organisation for the purpose of criminal activity are also applicable to this crime.” 38.     Under Article 7 § 2 of the Criminal Code (Article 2 § 2 in the former Criminal Code), in the event of there being a difference between the legal provisions in force on the date an offence was committed and those in force after that date, the provision which is more favourable is applied to the offender. 2.     The Prevention of Terrorism Act 39.     The relevant provisions of the Prevention of Terrorism Act (Law no.   3713) provided as follows:   Section 1 (before amendment by Law no. 4928 of 15 July 2003) “(1) Terrorism is any kind of act committed by one or more persons belonging to an organisation with the aim of changing the characteristics of the Republic as specified in the Constitution, its political, legal, social, secular and economic system, damaging the indivisible unity of the Turkish State and Republic, weakening or destroying or seizing the authority of the State, undermining fundamental rights and freedoms or damaging the internal and external security of the State, public order or general health by means of pressure, force and violence, terror, intimidation, oppression or threat. For the purposes of this law an organisation is the association of two or more persons to pursue a common goal.” Section 1 (as amended by Law no. 4928 of 15 July 2003) “Terrorism is any kind of criminal act committed by one or more persons belonging to an organisation with the aim of changing the characteristics of the Republic as specified in the Constitution, its political, legal, social, secular and economic system, damaging the indivisible unity of the Turkish State and Republic, weakening or destroying or seizing the authority of the State, undermining fundamental rights and freedoms or damaging the internal and external security of the State, public order or general health by using force and violence and methods of pressure, terror, intimidation, oppression or threat. For the purposes of this law, an organisation is the association of two or more persons in order to commit a terrorist offence as described in paragraph 1 above.” Section 3 “Offences defined in Articles ... 168 ... of the Turkish Criminal Code are terrorist offences.” Section 7 (1) (before amendment by Law no. 5532 of 29 June 2006) “Without prejudice to sections 3 and 4 of this Law and the Articles 168 ... of the Criminal Code, those who establish, manage or organise the activities of an organisation as defined under section 1 of this Law shall be punished by a term of imprisonment of five to ten years and a judicial fine of two hundred million to five hundred million liras. Those who become members of such organisations shall be punished by a term of imprisonment of three to five years and a judicial fine of one hundred million to three hundred million liras. Those who aid and abet members of such organisations and spread propaganda on their behalf shall be punished by a term of imprisonment of one to five years, even if the act in question constitutes a separate offence.” Section 7 (1) (as amended by Law no. 5532 of 29 June 2006) “Those who establish, manage or become members of a terrorist organisation in order to commit crime to carry out the purposes set out under section 1, by using force and violence, and by means of exerting pressure, fear, intimidation or threats, shall be punished in accordance with the provisions of Article 314 of the Turkish Criminal Code. Those who organise the activities of the organisation shall also be punished as managers of the organisation.” 40 .     Section 7(2) of Law no. 3713, as in force at the time of commission of the offence, provided that any person who disseminated propaganda in favour of a terrorist organisation would be liable to a term of imprisonment of one to five years. Between 7 August 2003 and 18 July 2006, section 7(2) of Law no. 3713 read as follows: “Any person who assists members of the aforementioned organisations [terrorist organisations] or who disseminates propaganda inciting others to violence or other methods of terrorism shall be liable to a term of imprisonment of one to five years and a judicial fine of five million liras to one billion liras ...” 3.     The Passport Act 41.     The relevant provision of the Passport Act (Law no. 5682) at the material time provided as follows: Section 22 “... no passport or other travel document shall be issued to any person prohibited from leaving the national territory by virtue of a judicial decision ...” B.     Relevant judicial practice 1.     Examples of domestic case-law submitted by the Government (a)     Judgment of the İzmir State Security Court of 25 July 2002 E. 2001/421, K. 2002/207, upheld by the Court of Cassation. 42 .     In a case brought against five accused in relation to an allegation that they were members of an anarchist terrorist organisation, namely the Youth Anarchist Federation (AGF), within the meaning of section 7(1) of Law no.   3713, and where the events which had given rise to the accusation had been the spray-painting of anarchic comments on public walls and the distribution of flyers with slogans such as “No to Capitalism and War”, the İzmir State Security Court acquitted the accused of the charges. In doing so, the court held that there had been no official information as to the existence of an organisation called AGF, and that the flyers allegedly distributed by the accused had not borne AGF’s letterhead. The court further commented that in order for an organisation to be classified as illegal, some conditions had to be fulfilled. Firstly, the organisation would have to adopt an illegal purpose and an action plan in order to realise its purpose. Secondly, there would have to be information or documentary evidence relating to its action plan and purpose. Lastly, in order for an organisation to qualify as a terrorist organisation within the meaning of Law no. 3713, its action plan as such would have to contain plans or reference to acts to be committed using the methods of pressure, coercion and violence, fear, intimidation and threats. On the basis of the above criteria, it found that the accused had only come together to form a group in order to cultivate their interest in anarchy, but they had neither committed acts by means of the methods described above nor had a purpose that was clearly articulated. (b)     Judgment of the Court of Cassation of 13 February 2006 E. 2005/6870, K. 2006/713 43.     In a case brought against six accused in respect of an allegation that they were members of the Hizb-ut Tahrir terrorist organisation, the Court of Cassation quashed an acquittal decision of the first-instance court on the grounds that the latter had not adequately taken into account an information note prepared by the relevant Security Directorate which had considered that the organisation was a terrorist organisation within the meaning of section 1 of Law no. 3713, in view of its purpose, membership structure, strategy and activities. (c)     Judgment of the Court of Cassation of 9 October 2013 E. 2003/9110, K.   2013/12351 44.     In a case known as “the sledgehammer” ( Balyoz ), a number of high ‑ ranking army officials were charged with conspiracy against the State on the basis of Article 147 of the former Criminal Code, an offence which, at the relevant time, also qualified as a crime of terrorism and included violence ( cebren iskat ) as its essential component. Following an appeal by the accused, the Court of Cassation held that the violence component in respect of the crime in question was not restricted to physical violence, and could be broadly interpreted to include moral coercion so as to take into account the nature of the perverseness of the motive of those members of such an organisation, and the potential use of physical force in order to realise an organisation’s illegal purpose. Having regard to the evidence in question, consisting of CDs, audio cassettes and documents which demonstrated the organisation’s intention to orchestrate attacks and bombings in order to foment unrest in the country and raise tensions with a neighbouring country, the Court of Cassation held that the accused in question had formed a conspiracy in order to carry out a military “ coup d’état” , and had come up with an elaborate action plan setting out the steps in detail, and a comprehensive membership structure to facilitate its ultimate purpose of overthrowing the government. 2.     Other relevant practice Judgment of the Plenary Court of Cassation (Criminal Divisions) of 11   March 2003 E. 2003/9-39, K. 2003/32 45 .     In a case brought against the owner and the editor of a publication in respect of an allegation that they had published the declarations of a terrorist organisation, namely the Kurdistan Socialist Party, within the meaning of section 6(2) of Law no. 3713, the Court of Cassation, sitting in plenary, quashed the first-instance criminal court’s judgment. In doing so, the court held that the impugned judgment’s sole basis for qualifying the organisation as a terrorist organisation had been an information note prepared by the Security Directorate which had loosely categorised the organisation as another Marxist-Leninist organisation seeking to bring about an armed revolution with respect to the Kurdish situation, and the judgment did not point to specific actions committed by the organisation for the purposes alleged. The Court of Cassation further noted in that connection that there was no judicial precedent assessing whether the organisation could be qualified as a terrorist organisation within the meaning of sections 1 and 7 of Law no. 3713. It therefore held that the first-instance court should have expanded the scope of the investigation in order to assess whether the organisation in question had adopted terrorism as its modus operandi or committed acts that could be qualified as terror acts in the light of the purposes and methods listed in section 1 of Law no. 3713. Judgment of the Constitutional Court of Turkey 46 .     The Constitutional Court of Turkey in the context of an individual application reviewed the compatibility of the proceedings in the above mentioned sledgehammer case (see paragraph 43) with Article 6 § 1 of the Convention. In finding a violation of that article, it held, inter alia, that the domestic courts had not provided sufficient and adequate reasons in convicting the applicants on the basis of the digital evidence for which the applicants had submitted expert reports challenging their authenticity. III.     RELEVANT INTERNATIONAL MATERIALS 47.     The   Council of Europe Convention on the Prevention of Terrorism, which entered into force on 1 June 2007, signed and ratified by Turkey (entry into force on 1 July 2012), does not contain a definition of terrorism but refers to the definitions of terrorists offences contained in the eleven international treaties that are listed in its appendix. The Council of Europe Convention’s provisions that are relevant to the present case provide as follows: Article 5 – Public provocation to commit a terrorist offence “1. For the purposes of this Convention, ‘public provocation to commit a terrorist offence’ means the distribution, or otherwise making available, of a message to the public, with the intent to incite the commission of a terrorist offence, where such conduct, whether or not directly advocating terrorist offences, causes a danger that one or more such offences may be committed. 2. Each Party shall adopt such measures as may be necessary to establish public provocation to commit a terrorist offence, as defined in paragraph 1, when committed unlawfully and intentionally, as a criminal offence under its domestic law.” Article 6 – Recruitment for terrorism “1. For the purposes of this Convention, "recruitment for terrorism" means to solicit another person to commit or participate in the commission of a terrorist offence, or to join an association or group, for the purpose of contributing to the commission of one or more terrorist offences by the association or the group. 2. Each Party shall adopt such measures as may be necessary to establish recruitment for terrorism, as defined in paragraph 1, when committed unlawfully and intentionally, as a criminal offence under its domestic law.” Article 9 – Ancillary offences “1. Each Party shall adopt such measures as may be necessary to establish as a criminal offence under its domestic law: ... (b) organising or directing others to commit an offence as set forth in Articles 5 to 7 of this Convention; (c) contributing to the commission of one or more offences as set forth in Articles 5 to 7 of this Convention by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either: (i) be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of an offence as set forth in Articles 5 to 7 of this Convention; or (ii) be made in the knowledge of the intention of the group to commit an offence as set forth in Articles 5 to 7 of this Convention. ...” Article 12 – Conditions and safeguards “1. Each Party shall ensure that the establishment, implementation and application of the criminalisation under Articles 5 to 7 and 9 of this Convention are carried out while respecting human rights obligations, in particular the right to freedom of expression, freedom of association and freedom of religion, as set forth in, where applicable to that Party, the Convention for the Protection of Human Rights and Fundamental Freedoms, the International Covenant on Civil and Political Rights, and other obligations under international law.   2. The establishment, implementation and application of the criminalisation under Articles 5 to 7 and 9 of this Convention should furthermore be subject to the principle of proportionality, with respect to the legitimate aims pursued and to their necessity in a democratic society, and should exclude any form of arbitrariness or discriminatory or racist treatment.” 48 .     At its 83 rd plenary session, held on 4 June 2010, the Venice Commission adopted a report on counter-terrorism measures and human rights (CDL-AD(2010)022), the relevant parts of which provide as follows: “A. Terrorist offences and principle of legality 29.     The core of the rule of law in criminal law is the principle of the legality of penal prohibition and punishment ( nullum crimen, nulla poena sine lege ), laid down in Article 7 ECHR. The latter is a non-derogable clause. 30.     In several countries the relevant counter-terrorism legislation prohibits a series of acts without giving an overall definition of terrorism. The offences are often vaguely and/or broadly defined such as “being concerned with terrorism” or “belonging to a proscribed organisation”. In other countries, the definition of terrorism in national laws may be so broad that it encompasses a wide range of acts of differing gravity. This carries a risk that certain crimes or offences are incorporated in the category of terrorist act that, by nature, do not belong there. Or that a crime or an offence committed in a political context be considered as a terrorist act. 31.     During the last years, some States have also been drawing up official lists of groups deemed to be terrorists. Belonging to or collaborating with a so-called terrorist group becomes a crime, ipso facto . “Blacklisting” of terrorist suspects or groups involves major problems for their legal security and several of their human rights ... As it operates to criminalize activities in support of a given violent (terrorist) political movement, there is a considerable risk that it may have an overspill effect on non-violent movements which have the same political goals as the target group, but which do not advocate (terrorist) violence in obtaining these goals. This may lead to infringements of the freedom of association and freedom of speech of the persons concerned. 32.     Furthermore, expanding the criminal liability to mere expressions of adherence to terrorist ideologies conflicts with the principle that only acts may be punished, and not also declarations of thought, intention or sympathy, as long as the latter do not amount to speech by the person him- or herself that amounts to incitement to violence or hatred ... Article 7 ECHR links the principle of legality to the commission of an act or an omission; a crime should thus consist in a material behaviour. The rights of the accused, notably the right of defence, would be nullified