CEDH · CASELAW;CLIN;ENG — 27 août 2024

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Türkiye - 17389/20 Judgment 27.8.2024 [Section II] Article 7 Article 7-1 Nulla poena sine lege Nullum crimen 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, with individualised identification of the material and mental elements of the offence: no violation [This case was referred to the Grand Chamber on 16 December 2024] Facts – In February 2018 the Assize Court sentenced the applicant to seven years and six months’ imprisonment for membership of an armed terrorist organisation, the “Fetullahist Terror Organisation/Parallel State Structure” ( Fetullahçı Terör Örgütü / Paralel Devlet Yapılanması – “FETÖ/PDY”), which was considered by the Turkish authorities to have been behind the attempted coup of 15   July 2016. The applicant’s conviction was based on the fact that, as an executive within the organisation, he had engaged in secretive activities in the service of the organisation in question, in particular from 2011 to   2014. His appeals against that decision were dismissed. The applicant submitted that, in convicting him, the authorities had breached Article   7 of the Convention in two respects: firstly, he argued that the FETÖ/PDY had not been designated as an “armed terrorist organisation” at the time when he was alleged to have committed the acts for which he had been convicted; secondly, he alleged that he had been convicted for lawful acts, as a result of an expansive interpretation of the relevant legislation. The applicant further complained of his detention conditions in prison. Law – Article   7: The present case differed from the Yüksel Yalçınkaya v.   Türkiye   [GC] case, which had concerned the applicant’s conviction for membership of an armed terrorist organisation based decisively on the use of the encrypted messaging application ByLock, without establishing the constituent material and mental elements of the offence under Article   314 §   2 of the Criminal Code in an individualised manner. In the present case the applicant had been found guilty of the offence of membership of an armed terrorist organisation as a result of acts committed, in particular, from 2011 to   2014 and on the basis of a wide range of evidence, and had been convicted under the aforementioned statute. Firstly, as to the accessibility of the law on which the conviction was based, the provisions of Article   314 §   2 of the Criminal Code had entered into force prior to the period during which the acts of which the applicant was accused had been committed. It was therefore necessary to verify whether, at the time when those acts had been committed, the offence in question was clearly defined in domestic law. 1. Whether the FETÖ/PDY was designated as a terrorist organisation at the time when the applicant was alleged to have committed the acts for which he was convicted – The Court considered that the relevant question for the purposes of the present case, as it had been in the Yüksel Yalçınkaya case, was not whether the FETÖ/PDY had already been proscribed as a terrorist organisation at the time when the applicant was deemed to have committed the acts for which he had been convicted, but whether his conviction for membership of an armed terrorist organisation had been sufficiently foreseeable given the requirements of the domestic law, in particular as regarded the cumulative constituent material and mental elements of that offence. 2. Whether the applicant was convicted for lawful acts, as a result of an expansive interpretation of the relevant legislation – (a) Constituent elements of the offence of membership of a terrorist organisation – In the Yüksel Yalçınkaya judgment, the Court had examined the wording of the relevant legal provisions. Having regard to their interpretation by the domestic courts, it had then considered that this offence was codified and defined under Turkish law, in keeping with the principle of legality under Article   7. The Court saw no reason to depart from that finding in the present case. (b) Material element of the offence (actus reus) – Having examined the evidence before it, the Assize Court had established that the applicant had engaged covertly in activities within the organisation in question, using a codename, and that he was one of the main regional leaders of pupils within the organisation’s secretive structure. The court had observed that all these acts should be considered as a whole and that the accused’s guilt should be determined accordingly. It had noted that, on this reasoning, the requisite conditions of continuity, diversity and intensity had been met and it could be held to have been established that the accused had been a member of the organisation in question. In this connection, it was evident that the acts mentioned above had not enjoyed a presumption of legality at the time when they had been committed and had not pertained to the applicant’s exercise of his Convention rights. Nor could it be argued that the attachment of these acts to a criminal aim was unverifiable. The applicant had not been accused of having engaged in these activities within a legal organisation acting in compliance with the law: it had been made out that the applicant’s activities had aimed, in particular, to broaden the support base from which the organisation in question had meant to recruit, especially among students, and to infiltrate public institutions. Moreover, the domestic courts had also established that the activities of the members of the organisation in question, such as the activities in issue in the present case, had been carried out in secret in order to achieve that organisation’s goals, and that the organisation had also resorted to illegal actions, such as stealing university or civil‑service entry exam questions for its supporters. Consequently, the Court was not persuaded by the applicant’s argument to the effect that he had been convicted for lawful acts. It followed that the material element of the offence of which the applicant had been convicted resided in the fact that, by making himself available to carry out the commands and instructions he received from the organisation, he had become part of its hierarchical structure and had engaged secretly, intensely and continuously in activities aimed at achieving that organisation’s goals. (c) Mental element of the offence (mens rea) – Article   7 required, for the purposes of punishment, the existence of a mental link through which an element of liability could be detected in the conduct of the person who had physically committed the offence. The domestic courts had established the mental element of the impugned offence by referring to a wide range of incriminating evidence showing that the applicant, as a senior officer of the organisation’s secretive structure, had carried out his covert activities in the service of the organisation in question. On this point, therefore, the present case differed from the Yüksel Yalçınkaya case. The case-law of the domestic courts showed that they were required to undertake an assessment under the mistake provision set out in Article 30 § 1 of the Criminal Code in circumstances where some of the members of an organisation, who were part of structures which carried out their activities on a legal basis but which harboured an ultimate purpose that was not clearly known due to its concealment, claimed that they were unaware of the fact that the relevant structure was a terrorist organisation. If the mistake was so significant as to prevent the existence of an intent, no penalty would be imposed on the accused. However, it could be seen from the wording of the relevant statutes and from the case-law of the higher courts that where it had been made out that a defendant belonged to the hierarchy of the relevant organisation, that he or she had engaged in continuous, diverse and intense activities aimed at achieving that organisation’s ultimate goals and that he or she had occupied a specific position in that structure, it was considered, as in the present case, that the accused had been aware of the existence of the goals and methods of the organisation in question. In the Court’s view, this assessment by the domestic courts of the mental element in the applicant’s case represented a foreseeable, and not an expansive, interpretation and application of the criminal-law statute in question. (d) Overall assessment – Regard being had to the above considerations taken as a whole, the Court was satisfied not only that the offence of which the applicant had been convicted had had a basis in the relevant national law, but also that this offence had been defined sufficiently clearly to meet the requirement of foreseeability and thus to enable the applicant to regulate his conduct for the purposes of Article   7. It further considered that the domestic courts’ interpretation of the provisions of Article   314 §   2 of the Criminal Code had not been expansive and that the solution in the present case had been consistent with the essence of the offence and had to be regarded as reasonably foreseeable. Conclusion : no violation (unanimously). The Court also held, unanimously, that there had been no violation of Article   3, since, having regard to their cumulative effect, the applicant’s detention conditions had not reached the threshold of severity required to characterise the treatment to which he had been subjected as inhuman or degrading. (See also Parmak and Bakır v.   Turkey , 22429/07 and 25195/07, 3   December 2019, Legal Summary ; Yüksel Yalçınkaya v.   Türkiye   [GC], 15669/20, 26   September 2023, Legal Summary )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. To access legal summaries in English or French click here . For non-official translations into other languages click here .