CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 27 août 2024

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TÜRKİYE (Application no. 17389/20)     JUDGMENT Art 7 • Nullum crimen sine lege • Nulla poena sine lege • Conviction for membership of an armed terrorist organisation on account of activities carried out in secret by the applicant, as a senior officer of the organisation • Case differed from Yüksel Yalçınkaya v.   Türkiye [GC] • Offence having a foreseeable legal basis when it was committed • Individualised identification by the domestic courts, through solid supporting evidence, of the material and mental elements of the offence • Foreseeable and not expansive interpretation and application of the criminal-law statute in question Art 3 (substantive) • Applicant’s conditions of detention were not inhuman or degrading Prepared by the Registry. Does not bind the Court.   STRASBOURG 27 August 2024   Referred to the Grand Chamber   16/12/2024   This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Yasak v. Türkiye, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Arnfinn Bårdsen , President ,   Jovan Ilievski,   Saadet Yüksel,   Lorraine Schembri Orland,   Frédéric Krenc,   Diana Sârcu,   Gediminas Sagatys , judges , and Hasan Bakırcı, Section Registrar , Having regard to: the application (no. 17389/20) against the Republic of Türkiye lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr   Şaban Yasak (“the applicant”), on 2 April 2020, the decision to give notice to the Turkish Government (“the Government”) of the complaints concerning Articles 3 and 7 of the Convention and to declare inadmissible the remainder of the application, the parties’ observations, Having deliberated in private on 9   July 2024, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case concerns the applicant’s conviction for membership of an armed terrorist organisation described by the Turkish authorities as the “Fetullahist Terror Organisation/Parallel State Structure” ( Fetullahçı Terör Örgütü / Paralel Devlet Yapılanması , hereinafter referred to as “the FETÖ/PDY”). It raises issues under Articles 3 and 7 of the Convention. FACTS 2.     The applicant, Mr Şaban Yasak, is a Turkish national who was born in 1987. On the date that the present application was lodged he was detained in the Çorum L-type prison. He was represented before the Court by Mr   İ.   Makas, a lawyer practising in Ankara. 3.     The Turkish Government (“the Government”) were represented by their Agent, Mr Hacı Ali Açıkgül, Head of the Department of Human Rights of the Ministry of Justice. 4.     The case is one of many sets of criminal proceedings brought against presumed members of the FETÖ/PDY, an organisation considered by the authorities to be behind the coup attempt that took place in Türkiye on 15   July 2016 (for more details about this event and the measures subsequently taken by the national authorities, see Yüksel Yalçınkaya v.   Türkiye [GC], no.   15669/20, §§ 10-17, 26   September 2023). I.         THE circUMSTANCES OF THE CASE A.    The applicant’s prosecution 1.      Criminal investigations 5.     In 2015 the Çorum prosecutor’s office opened a criminal investigation into the activities carried out by the FETÖ/PDY (“the organisation”) in Çorum Province. As part of that investigation, a report was drawn up on 11   July 2016 by police officers from the anti-terrorism directorate. The report was based, in particular, on analysis of the HTS (“Historical Traffic Search”) records of the GSM line used by E.B., who was suspected of being the head, in Çorum Province, of a secret structure within the organisation, responsible for recruiting and training pupils and students. The report specified that E.B. and his spouse G.B. had been in contact with numerous individuals belonging to this structure, one of whom was the applicant. 6 .     Following the attempted coup of 15 July 2016, as part of the criminal investigations opened by the Çorum prosecutor’s office into the organisation’s activities in that province, on 7 December 2016 the police took statements from B.A., who was suspected of membership of the FETÖ/PDY. In recorded statements, given in the presence of his lawyer, B.A. indicated that he wished to benefit from the “active repentance” provision in Article   221 of the Criminal Code, which provides for the possibility of a reduction of sentence in exchange for information. He stated as follows. He had carried out activities within the organisation and, as part of those activities, had known numerous individuals in the secret structure responsible for the organisation’s pupils in Çorum Province. He submitted that the organisational hierarchy of this structure was as follows: the most senior individual was the chief regional student supervisor (“ Büyük Bölge Sorumlusu ”); he was responsible for the principal regional student leaders (“ Büyük Bölge Talebe Mesulü” ), who were in turn responsible for the regional student leaders (“ Bölge Talebe Mesulleri ”); lastly, the latter individuals led a network of “older house brothers” (“ Ev abileri ”), referring to residences in which candidates for civil-service entry competitions or students from various universities were housed. With regard to the applicant, B.A. stated as follows: “Recep or Şaban   –   I know for sure that one of these was his code name. He was 26 or 27, measured 1 m 75 or 1 m 80, had light skin and brown hair, and walked with a slight limp. He was continuing his studies in the economics and administrative sciences faculty, where he had obtained his degree. I know that he came from Kayseri. I learned that he was one of the principal regional student leaders (‘ Büyük Bölge Talebe Mesulü ’). At the university residence camp, he was responsible, with the regional student leaders, for 90 to 100 students: he planned the organisation’s activities and scheduled the conversation meetings (‘ sohbet ’), which were intended to inform students about the organisation’s ideology. I heard it said that in 2010 and 2011 he asked the imam (‘responsible’) of the house and my friends about me. I understood that he was thinking about appointing me as an “senior house brother’) (‘ ev abisi ’)...” 7.     The identification protocol drawn up by police on 8   December 2016 indicates that B.A. stated that he could identify “Recep or Şaban” from photographs, and that the individual on those photographs was in fact the applicant. 8 .     On 10   January 2017, still in the context of the criminal investigation by the Çorum prosecutor’s office into the organisation’s secret structure, statements by Y.B., who also enjoyed “active repentance” status, were recorded in the presence of his lawyer by the public prosecutor. Y.B. stated that he had had ties to the organisation since 2007 and provided very detailed information about its hierarchical structure, and about its activities in Çorum Province to recruit and train pupils in line with the organisation’s ideology. He stated, in particular, that he had initially been appointed as a house imam (“ ev imamı ”, a house leader). He added that between 2010 and 2014 he had stayed in Çorum; in 2010 and 2011 he had been a regional leader with responsibility for six student houses belonging to the organisation, before being appointed as a main regional student leader. In this connection, he noted that there had been four other regional student leaders, including the applicant. He also stated that he had been responsible for certain students in the police and army academies. He had begun working in the Çorum private tutoring company ( Çorum Eǧitim Hizmetleri Anonim Şirketi ) in October 2014, but while employed there his real task had been to look after the covert structure responsible for the organisation’s pupils. He also stated that he had used applications such as ByLock and Kakao Talk to communicate with other members of the organisation. He had been appointed as leader with responsibility for judges in 2015 and 2016 for Konya Province and had been responsible for eleven judges and prosecutors in the so-called T4 and T5 groups. He claimed to have cut his ties with the organisation after the attempted coup of 15   July 2016. He also stated that he had not been aware that the organisation was planning the attempted coup on 15   July 2016, but that during the week in question he had received prayers frequently via the messaging application ByLock and been urged to recite them. 9.     The identification protocol drawn up by police on 13   January 2017 indicates that Y.B. stated that he could identify the applicant in photographs. 10 .     On 3   February 2017, again in the context of the same criminal investigations, the police took statements from A.B. in the presence of his lawyer. A.B., who was suspected of membership of the organisation, also benefited from the “active repentance” provision. He in turn provided very detailed information about the hierarchical structure to which he had belonged and the activities conducted in Çorum Province to recruit and train pupils. With specific regard to the applicant, A.B. indicated that he used the code name “Recep” and had the following responsibilities: initially a house imam in Çorum Province before 2011, he had then been appointed regional student leader in 2011-2012; he became a principal regional leader in 2012-2013; lastly, he had been appointed as a regional student supervisor in 2013-2014, and was responsible for between 20   and 25   houses belonging to the organisation. According to A.B., he had assumed this latter responsibility jointly with the applicant in in 2013 and 2014 and, with him, had carried out activities for the organisation under the authority of a certain Çetin (pupil adviser within the organisation); at the end of 2014, Çetin had asked him to go to Ankara to prepare the civil-service entrance examination. He added that his social-security contributions had been paid between 2013 and 2015 by the Çorum private tutoring company and that, on the instructions of his hierarchical superior within the organisation, he had paid 10,000   Turkish lira (TRY) to Bank Asya, in order to support that entity. In his statements, A.B. also provided detailed descriptions of the duties and activities of the persons who belonged to the organisation’s secret structure. One of the main activities of the structure’s leaders, which was responsible for all matters concerning pupils and students, involved identifying and training brilliant individuals, so that they could subsequently be placed in important public institutions such as the army, the national police force and the gendarmerie. A.B. also said that he had downloaded ByLock and used other applications, such as Kakao Talk, for communicating within the organisation. 11.     The identification protocol drawn up by police on 11 February 2017 indicates that A.B. stated that he could identify the applicant on the basis of photographs. 2.      The applicant’s arrest 12 .     On 26   January 2017, on an order from the Çorum magistrate’s court, the police conducted a search of the applicant’s home and seized five mobile telephones, two hard drives, three laptops, a camera and other items. 13.     On 30   January 2017 the applicant went to the Nevşehir police station and handed himself in. He was taken into police custody on suspicion of membership of an illegal organisation. 14.     On the same day the applicant was examined by a doctor at the Nevşehir public hospital. The medical report indicated no trace of violence. 15.     Also on 30 January 2017, after the medical examination, the applicant was taken to Çorum and placed in police custody in the premises of the drugs unit of the Çorum provincial police. 16.     On 1   February 2017 the applicant met his lawyer in the premises of the anti-terrorist directorate for Çorum Province. 17 .     On the same date the police recorded a statement made by the applicant in the presence of his lawyer. He said that he did not recognise the witnesses who had accused him of membership of the organisation, and denied having carried out any activity for it. He had taken part in a few dinners and discussion meetings organised by entities linked to the organisation, but he denied having held a position within its secret structure or having conducted any activity whatsoever on its behalf. 18.     On 6   February 2017 the applicant appeared before the Çorum magistrate’s court, which ordered that he be placed in detention pending trial for the offence of membership of an illegal organisation. In his statement to the court, the applicant retracted the statements he had made to the police. 19.     On 11   February 2017, still in the context of the criminal investigation opened by the Çorum prosecutor’s office into the organisation’s covert structure, statements by H.E. were recorded by the police in the presence of his lawyer. H.E. stated, in particular, that he had been involved with the organisation since 2000 and had worked as a teacher in its private tutoring centres. He specified that he had known the applicant as one of the regional pupil supervisors. He added that the Çorum private tutoring company belonged to the organisation. According to the identification protocol drawn up by police on 11 February 2017, H.E. said that he could identify the applicant on the basis of photographs. 20.     On 30   January and 1, 3 and 6 February 2017 the applicant underwent several medical examinations. The corresponding medical reports indicate no trace of physical violence against him. 21.     On 13   February 2017 the details of the Bank Asya account held by the applicant were added to the investigation file. 22.     On 19   February 2017, in the context of the same criminal investigation opened by the Çorum prosecutor’s office into the organisation, the police took statements from R.C. in the presence of his lawyer. R.C. stated, in particular, that he had known the applicant as a supervisor of the organisation’s student residences, and that the applicant had arranged visits to other towns and cities as part of the organisation’s activities. 23.     According to a report by the Çorum General Directorate of Security. dated 19 June 2017 and entitled “Research results on ByLock use”, which was added to the case file, the applicant did not use this messaging application. However, another report, drawn up on the same date by the same directorate, contained information about the use of the ByLock messaging application by M.Y., the applicant’s brother. 3.      The bill of indictment 24.     On 4   August 2017 the Çorum prosecutor’s office filed a bill of indictment against the applicant with the Çorum Assize Court. He was accused of membership of the FETÖ/PDY, and of having conducted activities on its behalf in Çorum Province both in 2016 and previously, offences that fell within the scope of Article   314 §   2 of the Criminal Code. In the bill of indictment, the prosecutor’s office first provided general information about the FETÖ/PDY; it then analysed that organisation’s acts in the context of the offence proscribed under Article 314 § 2 of the Criminal Code; lastly, it set out in detail the specific evidence against the applicant. The information on these three points, as presented in the bill of indictment, may be summarised as follows. 25 .     The prosecutor’s office noted first that the FETÖ/PDY was an atypical or sui generis armed terrorist organisation which used religion as a front and a means to attain its non-religious earthly purposes. It acted in line with the instructions of the organisation leader, having the intent of establishing a new political, economic and social order. To that end, it primarily aimed at having power and acted with great secrecy with a view to being strong and establishing a new order. It used codenames, special communication channels, and money from unknown sources. It harboured the aim of taking over all constitutional institutions of the Republic of Türkiye by using its human and financial resources. The aim of this organisation was not to come to power through legitimate methods, but to dissolve parliament, the government and the other constitutional institutions by using force and violence; according to the prosecutor’s office, this had been demonstrated by the attacks carried out against several symbolic State buildings, including the Parliament building and the presidential compound, with heavy weaponry. 26.     The prosecutor’s office then provided the following clarifications concerning the FETÖ/PDY’s structure. The organisation’s secret hierarchy was made up of seven layers (for a detailed description of the hierarchy, see Yüksel Yalçınkaya , cited above, § 162). The most eminent layer, the seventh, consisted of seventeen people chosen directly by the leader of the organisation. It was possible to move from one layer to another, but transfers above the fourth layer were determined by the leader. Moreover, the organisation had been careful to observe cell-type horizontal structuring in order not to be discovered and to prevent the State from deciphering the organisational structure. The prosecutor’s office also noted that the organisation, which had organised itself in the operative units of the Security Directorate and the TAF, instrumentalised the oppression and intimidation emanating from those authorities to use the force and violence inherent in the [aforementioned bodies]. For the prosecutor’s office, the organisation members’ capacity to have recourse to arms as needed was essential, and sufficient, for the constitution of the offence of “armed terrorist organisation”. During the coup attempt of 15 July 2016, weapons had been used by the members of the organisation, who appeared to belong to the army but who acted in line with the orders and instructions of the organisation leader, as a result of which many civilians and public officials had been martyred. Noting in particular that certain members of the organisation were employed in State bodies possessing the power to use arms, and would not hesitate to use those arms if instructed to do so by the hierarchy of the organisation, the prosecutor’s office found it self-evident that the FETÖ/PDY was an armed terrorist organisation within the meaning of Article 314 of the Criminal Code. 27.     According to the prosecutor’s office, in order to achieve its objectives the organisation initially focused, first, on increasing its support base – particularly among students, through the “houses of light” ( ışık evleri ) allocated to them, and which were referred to in the bill of indictment as the organisation’s “cells”, and through private tutoring centres ( dershane ) – and, second, on infiltrating public institutions. After completing this mission of infiltrating public institutions, the organisation prioritised its educational goals, while conducting other clandestine activities. From an economic perspective, the organisation also started operating in this phase like a holding company that connected companies. Thus, it founded a bank and began operating in the health, finance, transport and media sectors, in addition to its presence in the education field. 28.     As to the constituent elements of the alleged offence, the prosecutor’s office presented them as follows. In the offence of membership of an armed terrorist organisation as defined by Article 314 § 2 of the Criminal Code, the designation “armed” was not a condition that was required in respect of all presumed members of the organisation, but instead to the organisation as such. Thus, in order to ascertain whether an illegal organisation was armed, the question was not whether all of its members were armed, but rather whether the organisation was sufficiently armed to commit the offences imputed to it. The prosecutor’s office also stated that the FETÖ/PDY had been set up to conduct activities aimed at dismantling the unity and integrity of the State, undermining the State’s authority and overthrowing the constitutional order. According to the prosecutor’s office, any person who, knowingly and willingly, became a member of such an organisation, with awareness of its aims and methods, was to be considered as a member of a terrorist organisation. For a person to be convicted of the offence of membership of an armed terrorist organisation, he or she must have intentionally participated in the hierarchy of an organisation, embracing its end goals and activities; conviction also required a continuous, diversified and uninterrupted link to the organisation, as well as concrete acts by the individual in question. 29 .     After specifying the domestic legislative provisions governing the notions of “organisation” and “terrorism”, the public prosecutor’s office noted that three elements had to be present for a structure to be characterised as a “terrorist organisation”, namely (i) an ideology or aim as set out in section   1 of the Prevention of Terrorism Act (Law no. 3713); (ii) an organised structure as per Article 220 of the Criminal Code, and (iii) the fact of resorting to force and violence in order to reach its aims. Submitting, first, that the organisation was very hierarchical in structure and noting the nature of the aim pursued by it and the continuity of its actions to achieve its objectives, and, secondly, that the organisation had had to resort to force and violence for the purpose of achieving the objectives listed above, and lastly that one of the most important acts in this respect had been the attempted coup launched by the FETÖ/PDY on 15 July 2016, the prosecutor’s office concluded that the FETÖ/PDY was an organisation that possessed the characteristics of a terrorist organisation. 30.     With regard to the evidence against the applicant, the public prosecutor’s office noted: (a)   the statements made by B.A., Y.B., A.B. and H.E. during the criminal investigation, which established that the applicant was conducting activities, under a code name, to recruit and disseminate the organisation’s ideology, as a student leader with responsibility for Çorum Province within the organisation’s secret structure; (b)   an analysis of the HTS (“Historical Traffic Search” ) records, which showed that the applicant had held telephone conversations with E.B., who was under criminal investigation on the same charge; (c)   bank statements from the account opened by the applicant with Bank Asya, which showed the deposit of a given sum in January 2014; (d)   and, lastly, the payment of the applicant’s social-security contributions by a private company affiliated to the organisation. The prosecutor’s office concluded that, in the applicant’s case, having regard to the continuity, diversity and intensity of its activities as set out above, the offence of membership of an armed organisation as defined in Article 314 §   2 of the Criminal Code had been made out. 4.      Proceedings before the Çorum Assize Court 31.     On 23   August and 27 November 2017 the assize court held hearings and supplemented the file. At the second hearing, the applicant filed defence pleadings in which he denied all the accusations against him. In particular, he challenged the statements made by the prosecution witnesses and affirmed that he had held no hierarchical position of responsibility in the organisation’s secret structure. 32.     On 3   January 2018 police officers took statements from A.S., in the presence of his lawyer. A.S. indicated that the applicant had carried out activities within the organisation, under the authority of E.B., who had been the main regional leader of the organisation’s secret structure. 33.     On 12   February 2018 statements were taken from Y.B. by the Istanbul Assize Court, on commission, and included in the case file. Y.B. repeated the statements he had made at the criminal investigation stage (see paragraph   8 above) and said that the applicant had used the code name “Recep”, held various leadership roles in the hierarchy of the secret structure responsible for the organisation’s pupils, and had carried out activities on its behalf. Y.B. added that he had communicated with the applicant using the ByLock and Kakao Talk messaging services. With the applicant, he had downloaded the ByLock messaging application in December 2013 or January 2014. He also claimed that in 2013 he had participated, with the applicant, in trips to Kosovo and North Macedonia, in the context of visits that were organised by the organisation. 5.      The applicant’s conviction by the Assize Court 34 .     On 14   February 2018 the assize court held its third hearing. In the course of that hearing, the public prosecutor submitted that the information in the file was sufficient and that it was unnecessary to wait for statements to be taken from other witnesses; for their part, the applicant and his lawyer left the necessity of gathering additional evidence to the assize court’s discretion. The assize court decided that the case could be decided on the basis of the file as it stood. The public prosecutor then presented his submissions on the merits of the case. Returning to the arguments developed in the bill of indictment, he sought the applicant’s conviction for the offence with which he was charged. The applicant and his lawyer replied to the prosecutor’s submissions. The applicant argued that the statements by the prosecution witnesses had been vague and abstract, and pleaded not guilty. 35.     At the end of the hearing, the assize court convicted the applicant as charged on the basis of the evidence set out in the bill of indictment and sentenced him to six years and six months’ imprisonment, pursuant to Article   314 §   2 of the Criminal Code. 36 .     In its judgment, the assize court made general remarks regarding the definition, types and components of a terrorist organisation. It then proceeded to examine, inter alia , the establishment, objectives, management and hierarchical structure of the FETÖ/PDY, as well as its financial structure and communication methods, largely along the same lines as the bill of indictment (see paragraphs   25-29 above). The fact that the State security institutions infiltrated by the FETÖ/PDY were armed and were authorised to use those arms was, in the assize court’s view, a very important factor in demonstrating that the organisation was indeed armed and had a military tendency. 37 .     With regard to the structure and functioning of the organisation, the assize court, again largely in line with the bill of indictment, provided an overview in its judgment of the unlawful methods commonly employed by the organisation in order to achieve its ulterior motives, such as stealing university or civil-service entry examination questions for their supporters, or fabricating evidence that could result in prison sentences. Stressing that maintaining secrecy was the key to the organisation’s functioning, the assize court quoted some statements by F. Gülen allegedly instructing his followers to act discreetly and keep a low profile until they reached “all the centres of power”, which showed that the organisation had infiltrated all public institutions as a strategic means of seizing control over the constitutional order. The assize court further noted that the veil of secrecy had been lifted with the “bureaucratic coup attempt” of 17-25 December 2013, which had been intended to “redesign the government and politics”. The assize court held that in view of its consequences, the 17-25 December events should be considered as a turning point for the recognition, at both State and public level, that the FETÖ/PDY was not an aid organisation or a movement at the service ( hizmet ) of the population, but a terrorist organisation. 38.     In arguing why the FETÖ/PDY should be classified as an “organisation”, the prosecutor’s office noted factors such as its use of code names and private telecommunication channels; these were not, in its opinion, open and transparent methods of handling its affairs. It added that the organisation perceived the State as an adversary, and interpreted religious values in pursuance of its objectives, adapting this interpretation to the prevailing circumstances of the day. It noted that the hierarchical structure of the FETÖ/PDY was based on the system of imams, each of whom was responsible for assigned “units” in their respective geographical, sectoral and institutional fields. Led by F. Gülen as “the universal imam”, the FETÖ/PDY had organised and spread at the grassroots level through continental, country, regional, provincial, district, trades, neighbourhood, and house imams. The organisation also designated imams in public institutions, such as ministries, local authorities and universities, and in the private sector. 39 .     The assize court also explained that the FETÖ/PDY had created, in Türkiye and abroad, structures such as foundations, associations, private schools, businesses, private tutoring centres, student residences, etc., and had conducted activities aimed at enabling it to achieve its ulterior goat through those structures. The assize court noted that the individuals who belonged to the organisation had been selected at a young age, trained in a forward ‑ looking, systematic and programmed manner, and placed in public institutions. 40 .     In its judgment, the assize court also examined the legal framework governing armed terrorist organisations in Türkiye and laid out the main elements of the offence of membership of an armed terrorist organisation, referring to the relevant provisions of the Criminal Code and the Prevention of Terrorism Act (see paragraphs   75-78 below). It noted, in particular, that membership of an armed terrorist organisation required voluntary submission and subordination to the organisation’s hierarchical structure, as well as an “organic link” to the organisation and participation in its activities. The organic link rendered the person available for commands and determined his or her hierarchical position and hence was the most important element in the offence of membership of an armed terrorist organisation. Mere sympathy for the organisation would not constitute an offence. It pointed out that the member should have established an organic link with the organisation and taken part in its activities. It explained that the activities of members of an armed terrorist organisation were clandestine activities aimed at achieving its goals, and that with a view to ensuring the clandestine nature of such activities, which consisted, inter alia , in recruiting and training new members and securing finance for these operations, the organisation’s members had used code names and confidential channels of communication. 41.     The Assize Court also reviewed the three factors that had to be present in the offence of “membership of an armed organisation” under Article 314 §   2 of the Criminal Code (see paragraph   29 above). 42 .     As to the evidence on which the applicant’s conviction was based, the assize court considered that the statements obtained from witnesses at the various stages of the proceedings showed that the defendant was covertly carrying out activities within the organisation, and that, in particular, the statements by witnesses Y.B. and A.B. confirmed that he was one of the principal regional student leaders and had used the code name “Recep”. It also considered it established that the applicant’s social-security contributions had been paid by the Çorum Egitim Hizmetleri Anonim Şirketi, a company that was affiliated to the organisation, and that the HTS analysis carried out in the context of another criminal investigation showed that the defendant was in contact with members of the organisation. 43.     Lastly, the assize court noted that although in December 2013 there had been no money in the applicant’s bank account in Bank Asya, he had made a deposit of TRY 2,000 into his account in January 2014, an operation that, in the assize court’s view, was carried out on the organisation’s instructions, and had been intended to assist the bank in dealing with the economic difficulties faced by it after the events of 17-25 December 2013. This explained why the applicant’s deposit into Bank Asya had been considered as an activity related to the organisation. The assize court noted that the organisation’s members, and its leader, had themselves acknowledged that Bank Asya was affiliated to the FETÖ/PDY. The bank, which had been opened with a view to generating financial resources for the organisation, had been placed under surveillance by the Banking Regulation and Supervisory Authority (BDDK) after December 2013. When it was established that the bank was in difficulty and that money had been illegally transferred to companies which had close ties with the organisation, the organisation’s members, on an instruction from the organisation’s leader, had opened accounts or deposited significant amounts of money with it, especially at the beginning of 2014. Investigations had shown that during the period under examination the banking activities of those individuals had not been consistent with everyday life. It was for those reasons that the assize court held that these banking activities could be interpreted as an act carried out on the instruction of the organisation’s leader, with a view to supporting a bank affiliated to the organisation. To justify its reasoning, the assize court referred to a judgment of the 16th Criminal Division of the Court of Cassation, delivered on 14 March 2016 (E.   2015/5452, K.   2016/1983), in which such conduct had been held to be a sign of financial support for the organisation. 44 .     In assessing the applicant’s activities, the assize court noted that these actions had to be examined in their entirety, and the defendant’s guilt determined in consequence. It argued that, in reasoning in this way, the requisite conditions of continuity, diversity and intensity had been met, and that it could be regarded as established that the defendant was a member of the organisation. 6.      Witness statements obtained after the conviction judgment 45.     On 26   February 2018 the Bulancak Criminal Court obtained statements, on commission, from B.A. He repeated the statements he had made during the criminal investigation (see paragraph   6 above), to the effect that the applicant, as one of the regional student leaders in the organisation’s secret structure, had carried out activities on its behalf. 46.     On 13   March 2018 the police recorded a statement made by A.M. in the presence of his lawyer. In it, A.M. said that he had seen a certain “Şaban” who spent time with M.; according to A.M., M. was one of those responsible for the organisation’s activities in the province (“ İlci ”). A.M. also provided information about numerous members of the organisation and their activities. 47.     On 21 April, 30 April, 10 May, 1 June and 4   July 2018 respectively, the police recorded statements given by junior officers I.K. and A.T., officer I.A., Ș.Y. (a student in the military academy), and O.K. (a student in Çorum), in the presence of their lawyers. I.K., A.T., I.A. and Ș.Y. gave detailed information about the activities carried out by the organisation in order to infiltrate the armed forces and claimed to have known the applicant as a member of the organisation’s secret structure. I.K. stated, in particular, that he had submitted a candidature for the entrance examination to military academies and had been provided by members of the organisation with a copy of the examination paper, containing the questions that would be asked. Ș.Y. stated, among other things, that in 2013 the applicant had come to his residence and spoken to him about the organisation’s intention to place its pupils in military academies. O.K. stated that during the second semester of the 2013-2014 academic year he had seen the applicant on several occasions in the student residence, and that the applicant held an important position in the organisation’s hierarchy and had encouraged the students to enter military academies. All those witnesses identified the applicant from photographs. 48.     On 8   August 2018 statements were taken from A.B., on commission, by the Istanbul Assize Court. A.B. repeated his statements at the criminal investigation stage (see paragraph   10 above), to the effect that the applicant had used the code name “Recep”, had assumed various responsibilities as a house imam, regional student leader, principal regional student leader and a person responsible for university residences, and had carried out activities on behalf of the organisation. 49.     According to the information available to the Court, the statements obtained on commission were added to the case file. In his memorials to the competent courts, the applicant challenged their contents and pleaded not guilty. 7.      The applicant’s appeal 50 .     In the meantime, on 9 March 2018, the applicant had lodged an appeal against the judgment of 14 February 2018. He argued that he was not a ByLock   user, and that the account held by him with Bank Asya had been opened for the purpose of receiving his salary payments. Although his social ‑ security contributions had been paid by the Çorum Eǧitim Hizmetleri Anonim Şirketi , this was simply because he had worked in a private tutoring centre that was managed by that company. The statements made by witnesses A.B and Y.B. were vague and untrue, and he could only be considered as a sympathiser of the organisation, not as one of its members. Since he had left Çorum in June 2014, the continuity of the charges against him had not been established. 51.     In a judgment of 3   July 2018, the Samsun Regional Court had dismissed the appeal, holding that the first-instance court had not erred, either in its assessment or its conclusions. 8.      The applicant’s appeal on points of law 52 .     On 23   July 2018 the applicant appealed on points of law against the Samsun Regional Court’s judgment. He essentially repeated, and developed, the arguments that he had already set out in the appeal against the assize court’s judgment (see paragraph   50 above): in this connection, he denied having taken part in any activities, legal or illegal, of the FETÖ/PDY, and argued that his membership of that organisation had not been established on the basis of clear, definite and unambiguous evidence. 53.     On 21   January 2019 the Court of Cassation upheld the applicant’s conviction. In so doing, it held, in particular, that the relevant acts had been accurately classified and had corresponded to the offence set out in the law, and that both the verdict and sentence had been determined in an individualised manner. 9.      Proceedings before the Constitutional Court 54 .     On 22   May 2019 the applicant lodged an individual application with the Constitutional Court, complaining, inter alia , that his conviction had been unlawful. To that end, he argued that the fact of punishing actions that were protected by the Constitution had been unforeseeable. In his submission, however, the attempted coup of 15 July 2016 had been the first act of violence attributed to the organisation, and there was no evidence that he had known of the organisation’s existence prior to that event, so that he had been unaware of the FETÖ/PDY’s “terrorist” nature; that circumstance ruled out the possibility of establishing the requisite criminal intent for the offence of membership of an armed terrorist organisation. As to the facts that he had worked in a tutoring centre, had had telephone conversations with a person working in the same centre and that his salary had been paid by the centre into his bank account at Bank Asya, these could not constitute punishable acts under the Criminal Code. The applicant further complained that the Turkish courts had lacked independence and impartiality, arising, in his view, from a systemic disregard for the principle of the irremovability of judges. He also alleged, in a general manner, that there had been a violation of his right to a fair trial. Lastly, he complained of a violation of his rights to liberty, to private life and to education and stated that he had been the victim of discrimination. In an annex submitted with the application form, he complained in general terms about the prison overcrowding to which he had been subjected while “in police custody and detention” and also about the conditions of his detention (he explained that he had been obliged to sleep on the floor, that access to the toilets and bathroom had been restricted, and that he had been unable for eight days to carry out ablutions prior to morning prayers); however, in the complaints part of the application form he did not make any specific complaint on those points. 55 .     In a summary judgment delivered on 25 February 2020, which was notified to the applicant on 28 February 2020, the Constitutional Court examined all the applicant’s complaints relating to the right to liberty and the right to a fair trial, namely the complaints alleging overall unfairness in the proceedings and the alleged restrictions on the rights of the defence. It dismissed the complaint alleging an overall lack of fairness in the proceedings as manifestly ill-founded; it likewise dismissed the complaint concerning the alleged restrictions on the rights of the defence, holding that the ordinary remedies had