In its judgment rendered in respect of Selahattin Demirtaş on 22/12/2020 1, the Grand Chamber of the European Court of Human Rights (ECtHR) pointed out highly fundamental matters which closely concerns the pending cases in Turkey. The Grand Chamber touched, for the first time, upon the Article 314 of the Turkish Penal Code (TPC) governing membership of an armed organization and, as previously stated by the Second Division of the Court in the Ragıp Zarakolu judgment 2, held that this article was not “foreseeable”. In this article, we are going to analyze the aspects of this judgement regarding the trials on the members of the Gülen Movement which is distortedly described as “FETÖ/PDY” (Fethullahist terrorist organization / Parallel State structure) by the Turkish Government.
II. BEING PART OF THE HIERARCHICAL STRUCTURE AND CONTINUITY, DIVERSITY AND INTENSITY OF ORGANIZATIONAL ACTIVITIES
It is mentioned in paragraph 278 of the judgment that “In the present case, the national judicial authorities, including the public prosecutors who conducted the criminal investigation and charged the applicant, the magistrates who ordered his initial and/or continued pre‑trial detention, the assize court judges who decided to extend his pre-trial detention, and lastly the Constitutional Court judges, adopted a broad interpretation of the offences provided for in Article 314 §§ 1 and 2 of the Criminal Code. The political statements in which the applicant expressed his opposition to certain government policies or merely mentioned that he had taken part in the Democratic Society Congress – a lawful organisation – were held to be sufficient to constitute acts capable of establishing an active link between the applicant and an armed organisation. The national courts do not appear to have taken into account the “continuity, diversity and intensity” of the applicant’s acts or to have examined whether he had committed offences within the hierarchical structure of the terrorist organisation in question, as required by the case-law of the Court of Cassation“.
It would be helpful, regarding this paragraph, to elaborate on the scopes, meanings and implementations of the two criteria – which are “being part of the hierarchical structure” and “continuity, diversity and intensity of organizational activities.“
A. Being Part of the Hierarchical Structure
There must be a hierarchical structure among people who form a criminal organization. The basis of this element is found in the words of the Article 220/7 of the TPC, which defines those who provide assistance to an organization by stating that “while not being part of the hierarchical structure within the organization.” It follows from the above-mentioned wording that a hierarchical relationship within the organization is sought. Moreover, the fact that Article 220 differentiates sentences given to founders and leaders of an organization from its members also implies that a hierarchy is a sine qua non for the existence of an organization.
In the doctrine and jurisprudence, it is accepted that, in order for a criminal organization to be founded, at least three people must come together and there must be a hierarchical bond, although weak, among them. The hierarchical links, however, are observed in many institutions and bodies, especially in public agencies. Thus, the mere existence of a hierarchical relationship in a body does not necessarily suffice to consider that structure as a criminal organization. For example, the existence of such a relationship among those working in a commercial company or family members cannot lead to the conclusion that those structures are criminal organizations.
A hierarchical relationship leading to the offense is the hierarchy in which wills come together only for committing certain offenses and dedicate themselves to that end. Otherwise, a hierarchical link does not constitute the offense of establishing a criminal organization. Even though there is a hierarchical bond, for instance, between a manager of a company and an employee who committed an offense, although asked by the former, there is no hierarchy to the effect of a criminal organization. The same applies to the relationship between a person who carries out her/his father’s orders without questioning and the latter. In other words, the concurrence of wills in a certain hierarchal relationship with a goal of committing crimes and abuse of a relationship by inciting a person to an offense are different matters in terms of the TPC.
The hierarchical structure entails more than the division of labor. This concept implies a relationship of superiority-inferiority and the necessity for members to obey the organization’s decisions. What’s more, alongside certain level of organizational discipline, the hierarchical bond requires that decisions taken by its competent body or authority are executed by its members. Disobedience to the organization’s orders or rejecting the relationship of superiority is met with organizational sanctions.
A number of judgments of the Court of Cassation include words “a hierarchical relationship” or “a relationship of superiority-inferiority” in respect of the hierarchical structure.3 Besides, in many of its judgments, the Court considers the acts of those whose positions within the organizational hierarchy were not established as a propaganda of the organization or as offenses on behalf of the organization without membership, regardless of the severity of the acts or their benefits for the organization.4
With regard to hierarchical structures, the 16th Criminal Chamber of the Turkish Court of Cassation also wrote in its quashing decision on the Ergenekon Case that “… In the judgment, the organization’s hierarchical structure could not be set forth; it was not established on the basis of concrete evidence how connections among units or cell structures had been made, and under which people they had acted and what was their positions within the assumed hierarchy by separate assessment having being made for each suspect in the meaning of the relationship of superiority-inferiority and the power to give orders-instructions; it is understood that the suspects were linked to the organization by making references to expressions in documents accepted as the main papers of the organization; it could not be established with concrete information where, when, by whom, for which purpose the organization had been founded.“
1. Being Part of the Hierarchical Structure in the Current Trials
The Gülen Movement have been stood out with its education activities both in Turkish society and in international community until the coup attempt of 15/07/2016. The relationship among the members or sympathizers of this entity is not comparable to a hierarchical bond based on the will to commit offenses as exists in illegal organizations. Moreover, members who do not obey instructions of the organization or leaving it face serious sanctions in criminal organizations while participation to and leaving the Gülen movement are voluntary, without any compulsion or retribution.
The most essential problem with the pending proceedings, regarding the Gülen movement cases, are unclarified hierarchical structure of this entity and unspecified positions of individuals. Main reason for this is that the trials have been conducted on a case-by-case basis without examining the whole structure of the movement. Thus, sufficing only on the basis of individualized assessment for each suspect without scrutinizing connections among units (or cell structures), the relationship of superiority-inferiority, their organizational superiors, and positions within this alleged organizational hierarchy were not determined with concrete evidence. In Gülen movement related cases, organization’s hierarchical structure was not established and duly examined. The only criteria for considering people part of the organizational hierarchy are merely legal and noncriminal ordinary activities. Nevertheless, it is not possible to establish an actual connection between the suspects and an armed organization on account of those activities. Because, as underlined in the ECtHR’s Ragıp Zarakolu judgment, lawful and ordinary activities which were not criminal at the material time or acts related to the exercise of any rights guaranteed by the Convention cannot be relied on to support the suspicion of membership of an armed organization.
In short, it is not possible to decide a person’s involvement in the organizational hierarchy by relying on lawful and usual activities with abstract allegations and without any other reasoning being set out and constituent elements being established. However, in the current trials, where, when and by whom alleged FETÖ/PDY organization was founded has not been pointed out with plausible evidence, and, moreover, the organization’s structure and hierarchy have been described in abstract and general terms.
Moreover, under Article 30 of the TPC, “fault” is mentioned among “grounds mitigating or removing criminal liability“, and, according to this provision, any suspect who are mistaken about the material elements of an offense cannot be deemed as acting with intention. The fault removes the offense’s moral element, and no penalty can be imposed on the accused. The main material elements of offenses envisaged in Articles 302, 309, 312 and 314 of the TPC are “a coup attempt (target offense)” and “the use of force, violence and weapons (method)“. Therefore, for a defendant who is unaware of these two crimes, criminal liability does not arise.
Again, a suspect at fault in respect of these two elements, namely who takes them differently or wrongfully, also benefits from the consequences of this fault. Accordingly, any defendant who knew the ultimate goal of a structure s/he was involved in differently and assumed it legal cannot be deemed to act intentionally, and s/he cannot be sentenced since the moral element of the offense was not materialized. To illustrate, a person, who considered the Gulen Movement as a religious community and that it was formed for religious, moral and educational purposes, do not have any criminal responsibility for the group’s alleged offenses.
In a sense, the presumption is easy for judges and falls in line with their routines as those judges whose practice of terrorism trials is mainly limited to the PKK do not have a habit to inquire into the fact that “whether suspects are aware of the ultimate goal“. The PKK’s aim has been explicit and known by everyone for forty years. For this reason, it has not been questioned in PKK trials whether suspects were aware of the ultimate goal or were in a substantial fault in this matter.
When this judicial habit combines with the 16th Criminal Chamber’s preconception, the condition of “knowing the ultimate goal, namely the attempted coup“ has not been investigated in none of the current proceedings. “Coup attempt“, the target offense, is the material element of the offense, and “knowing and willing this” this is the moral element. Knowing and willing the target offense is a sine qua non condition of offenses in Articles 302, 309, 311, 312, 314 and 316 of the TPC since it constitutes the moral element of the offense. In respect to those offenses which could be committed with direct intention, the moral element is the first matter to be checked.
Nonetheless, due to that presumption of the 16th Criminal Chamber and the Plenary Criminal Chamber, the first-tier courts do not seek the moral element condition in Gülen movement related cases. Furthermore, it has become such that cases have been handled on the basis of a simple generalization of “every member of the Gülen movement = member of the armed terrorist organization“. Judges have merely inquired into whether suspects were members of this community but not examined whether they knew the coup or have been in an essential fault in that regard. Naturally, anyone who was or was thought to be a member of the community has been sentenced to severe penalties for membership of an armed organization.
B. Continuity, Diversity and Intensity of Organizational Activities
Continuity means nonexistence of interruption. Individuals who have contact with an organization from time to time and leave it cannot be considered as a member. Only if the membership of the organization continues without interruption or break, then that person is accepted within the hierarchical structure, namely to have permanently connected to the chain of command. If a suspect, for example, attends to the organization’s meetings as an organizational activity, he must do this continuously, regularly and without interruption to be considered as a member. The continuity requires the pursuance of the organizational activities for a long time, as well as being without interruption.5
Diversity means engaging in different and various types and sorts of organizational activities.6 A single kind of activity is not sufficient to be considered as a part of an hierarchical structure. For instance, attending meetings of an organization is an organizational activity. However, when a suspect’s only activity is to follow those meetings, the condition of diversity is not met even though there exist continuity. Again, if the suspect confines himself to paying dues, namely engages in a single type of activity, he cannot be considered a member although such an activity may lead to the offense of aiding if other conditions exist.
Intensity refers to the fact that organizational activities occupy a substantial place in the suspect’s life and reach a certain level. The suspect should pursue his uninterrupted and various kinds of activities for a long time. Accordingly, irregular attendance to several meetings and paying dues a few times do not amount to intensity. A member of the organization is a person who is focused on organizational activities and, in a sense, dedicated himself to those activities.7
It must be underlined that continuity, diversity and intensity are elements which should coexist. In that regard, the suspect should both attend the organization’s gatherings, pay dues to it and use a code name, and he should do them uninterruptedly and regularly and continue those activities for a long time, namely should focus on those activities. In the absence of any of these three criteria, the person cannot be considered a member of the organization. However, if its conditions are met, the offense of aiding may come to mind.8
Continuity, Diversity and Intensity in the Current Proceedings
Just like the existence of an organizational relationship, its continuity should also be aimed at the purpose of committing offenses which are defined Article 3 of the Anti-Terror Law. Moreover, an entity having such continuity must have been established to commit indefinite number of offenses, not one or a number of offense(s). Even when it is assumed that a community which acted in line with law for decades, or at least as accepted so by the state authorities, was later turned into a means to commit some of those abovementioned offenses, it is not possible to take the period of time when this community carried out legal activities into account with respect to the element of continuity.
The existence of the element of continuity could be determined only by having regard to the period of time “subsequent” to the indisputable appearance of acts aiming at target offenses. Otherwise, the criminal liability of any individual would be sanctioned in breach of the principle of “no punishment without law“, contrary to universal legal rules. This is no different from sentencing a primary school teacher who taught reading and writing to a suspect for the latter’s act to forged a fake document.
Given the decision of acquittal rendered by the Plenary Criminal Chamber of the Court of Cassation in 2008 in respect of the Gülen movement, such a practice is far from being compatible with the principle of “legal certainty and security” that is a fundamental value of the rule of law.
The Venice Commission’s opinions which are cited in the Demirtaş judgment also confirms this conclusion. The Venice Commission states that the Court of Cassation’s loose application of its criteria about the membership of a terrorist organization may pose a problem in the face of the principle of legality envisaged in Article 7 of the Convention, that expressions of thoughts and opinions should not be the unique evidence of the membership of a terrorist organization, and that this would lead to a violation of freedom of expression.9
That is exactly what is happening in the pending proceedings. We are saying this since, in indictments and verdicts, neither defendants’ unlawful acts nor their wills to commit offenses have been substantiated with relevant evidence. Moreover, whether the defendants joined the Gülen movement with the intention of “overthrowing the government by force of arms (coup)” which is accepted as the target offense of the movement and with the will to constantly commit criminal acts has never been made a subject of consideration by the courts. People’s legal and ordinary activities have been considered to be continuous, diversified and intense in spite of the absence of their organizational aspect. However, it has not been set out in the judgments that in which way those activities were continuous, diversified and intense, and that on which basis they were taken as the organizational activities. All the more, even the mere existence of one of such acts is sufficient to be punished for membership of a criminal organization. That is to say, whether the legal and ordinary activities were diversified, continuous and intense has not been examined at all, and people have been sentenced with the retroactive application of offenses and punishments.
In short, given that being part of the hierarchical structure has not been established and that lawful acts have been considered as continuous, diversified and intense organizational activities, all of the matters which are mentioned in paragraph 278 of the Demirtaş judgment as grounds of violation also apply to the current trials.
III. ARTICLE 314 OF THE TPC WAS NOT FORESEEABLE.
It is said in paragraph 280 of the judgment that “Furthermore, in its above-mentioned opinion, the Venice Commission stated that in applying Article 314 of the Criminal Code, the domestic courts often tended to decide on a person’s membership of an armed organisation on the basis of very weak evidence. The present case appears to bear out that observation. The range of acts that may have justified the applicant’s pre-trial detention in connection with serious offences punishable under Article 314 of the Criminal Code is so broad that the content of that Article, coupled with its interpretation by the domestic courts, does not afford adequate protection against arbitrary interference by the national authorities. In the Court’s view, such a broad interpretation of a provision of criminal law cannot be justified where it entails equating the exercise of the right to freedom of expression with belonging to, forming or leading an armed terrorist organisation, in the absence of any concrete evidence of such a link”.
All of the grounds of violation in this paragraph take place in the ongoing proceedings. Because, as stated therein, cases have been brought against, and sentences have been given to people for reasons which could not substantiate an allegation, let alone being on the basis of weak evidence.
Besides, in paragraph 337 of the judgment, it is mentioned that “It concluded under that head that the range of acts that could have justified the applicant’s pre-trial detention under Article 314 of the Criminal Code was so broad that the content of that provision, coupled with its interpretation by the domestic courts, did not afford adequate protection against arbitrary interference by the national authorities. On that account, it found that the terrorism-related offences at issue, as interpreted and applied in the present case, were not “foreseeable”“.
Indeed, the range of considerations under the name of criteria that serve as a basis for criminal cases is so broad that there is almost no person in the country who could not be found guilty under those criteria. Thus, whether or not finding them guilty is wholly left to the mercy of practitioners. That is why the ECHR concluded that Article 314 was not foreseable and that even a lawful activity was sufficient to be accused of membership of a terrorist organization.
Moreover, the Venice Commission, whose opinions on Article 314 were included in paragraph 160, also concluded that this article contains disproportionate sanctions, is applied excessively and renders rights guaranteed under International Covenant for Civil and Political Rights and the Convention punishable. According to the Commission’s view, the article should be applied in a radically different manner to make it compatible with these international texts. As defined in the case-law of the Court of Cassation, it has to be shown that acts attributed to suspects are “continuous, diversified and intense” and that they had “organic relationship” to an armed organization. On top of that, the Court adds that the criterion of knowingly and intentionally committing an act within the ‘hierarchical structure’ of the organization has to be applied strictly.
Punishing individuals without establishing their positions within the Gülen Movement’s hierarchy with concrete evidences and by considering their lawful and normal activities as organizational functions is not lawful. Like Ragıp Zarakolu judgment, the Selahattin Demirtaş judgment also proves that, from the standpoint of the Strasbourg Court, Article 314 of the TPC is not “foreseeable.” For this reason, the ECHR may make a large number of violation findings due to sentences under this article without strict application of the Court of Cassation’s criteria regarding the membership to an organization.
1 The Grand Chamber judgment of the ECHR, No. 14305/17, 22/12/2020, http://hudoc.echr.coe.int/eng?i=001-207173; for the Turkish translation, see “https://anayasagundemi.com/2020/12/28/iham-buyuk-dairesinin-selahattin-demirtas-no-2-kararinin-cevirisi-hdp-es-baskaninin-dokunulmazligi-kaldirilarak-bariscil-aciklama-ve-eylemleri-sebebiyle-siyasi-amaclarla-tutuklanmasi-sozlesme/”.
2 The judgment of the ECHR’s Second Division, No. 15064/12, 15/9/2020, http://hudoc.echr.coe.int/eng?i=001-203852; for the review of the judgment, see “https://gokhangunesphd.blogspot.com/2020/10/ragip-zarakoluturkiye-karari-basvuru-no.html”.
3 “… Even though it appears in the present case that the number of the suspects are sufficient to form an organization, without having explained and set out in the judgment in a way enabling supervision what the evidence was as regards the hierarchical relationship among them and continuity in their wills to commit offenses …”, the 6th Criminal Chamber of the Court of Cassation, 7/10/2008, 2007/23786, 2008/16408.
“… that it was ordered conviction on the basis of inadequate inquiry and insufficient reasoning, without how forming an organization which refers to coming together to commit multiple and indefinite number of acts criminalized in Article 220 of the TPC and to continuity, and the structure leading to the links of ordering instructions and inferiority-superiority had been developed and functioned having been discussed in the judgment, and without evidence sufficient for conviction having been set out …”, the 6th Criminal Chamber of the Court of Cassation, 8/10/2008, 5141/16603.
“… In the present case, …. since there was not any evidence capable of and sufficient in eliminating all kinds of doubts about the existence of a continuous formation based on the hierarchy among the defendants, it could not be concluded that, in terms of the laws nos. 4422 and 5237, the offenses of establishing, leading a profit-oriented criminal organization, membership of and aiding such an organization could not be talked about”, the Plenary Criminal Chamber of the Court of Cassation, 20/10/2009, 2009/8-152 – 2009/245.
“… without having taking into account that, in the sense sought by the law, there was not any evidence which was beyond suspicion and sufficient for a conviction regarding that the defendants had established an organization to commit offenses in a hierarchical structure and discipline with a view to carrying out acts considered criminal by law …”, the 6th Criminal Chamber of the Court of Cassation, 25/11/2008, 2007/17648 – 2008/22617.
“… Even though the court complied with the quashing decision, that it was found for the conviction of the defendants for the attributed offenses, merely the facts in the file and statements of the victim and witnesses about them having been relied on and on the basis of inadequate inquiry and insufficient reasoning, without having been discussed in the judgment how the organization in the sense of coming together to carry out multiple and indefinite number of acts criminalized in Article 220 of the TPC no. 5237 and of continuity, and the structure leading to the links of ordering instructions and inferiority-superiority had been developed and functioned and whether the formation assumed to exist was capable of committing target offenses, in terms of its number of members and its means, and without evidence sufficient for a conviction having been set out; …”, the 6th Criminal Chamber of the Court of Cassation, 8/10/2008, 2008/5141-2008/16603.
4 “If the defendant’s position within the “hierarchical” structure cannot be established and substantiated, in that case, it is to be discussed and decided whether the defendant’s acts constituted aiding the organization or committing offenses on behalf of the organization“, the Plenary Criminal Chamber of the Court of Cassation, 14/12/2010, 2010/9-88 – 2010/255, and 31/10/2012, 2012/9-1234 – 2012/1825.
” … without having been discussed and assessed in the judgment with sufficient evidence whether the attributed and accepted offense of damage to public property had been effected on behalf of the armed terrorist organization, as is the case, giving a decision of conviction for committing offenses on behalf of the terrorist organization without being a member of it, …”, the 16th Criminal Chamber of the Court of Cassation, 10/11/2016, 2016/4580 – 2016/4777.
5 “The defendant having sympathy for the illegal PKK terrorist organization assumed responsibility in its inner-city committee and sheltered members of the organization for short times in his house although he knew that they were members of the illegal organization. The members of the organization came together and met in the defendant’s house and made domestic and international calls, making use of a phone in the house. Whether members of the organization sent to the rural arrived at the rural was informed, the defendant’s house having been called. … The defendant’s tendency towards the organization was ascertained and it was sought by the members of the organization to raise his political awareness; it could not be determined whether he took part in actions in line with the organization’s objective and was given a code name, nor could it be established any activity of him that continued uninterruptedly, constantly and for a long time; his activities within the organization for 3-4 months did not reached certain intensity indicating that he was another member of the organization. Thus, it is necessary to accept that the legal situation remains within the scope of the offense stipulated in Article of 169 of the TPC of aiding members of the organization while being aware of their status and roles.”, the Plenary Criminal Chamber of the Court of Cassation, 21/10/1997, 1997/9-128 – 1997/204.
6 “… Even though it was understood, in view of the evidence within the file and the acceptance of the court, that the defendants, H.Ö. and M.Y., had carried out the organization’s orders in their region, given members and intelligence to the organization, provided aid materials, and that, having regard to continuity and diversity in the defendants’ activities, they had involved in the the organization’s hierarchical structure, their sentencing for aiding an armed terrorist organization, instead of membership of an armed terrorist organization, was not taken as a ground for quashing in the absence of a counter appeal.”, the 16th Criminal Chamber of the Court of Cassation, 12/5/2015, 2015/2583 – 2015/1322.
7 “… In the concrete case, the defendant’s acts were nothing more than having met with two members of the organization who came at his father’s request at Halit’s house and taken them to the house of a relative, and, when subsequently asked, having informed about the situation and organizational activities at the school and having written a note on this matter and related to the leaflets sent. All these actions took place over a short period of nine days and the defendant was given no code name. There was not the defendant’s assistance to the illegal organization which continued uninterruptedly, constantly and for a long time. Given that his actions within a short period of time did not lead to the offense of membership of an illegal organization since they did not reach certain intensity, there was not an organic relationship with the organization and he did not provide logistical support, they did not lead to the offense of membership of an illegal organization but led to the offense stipulated in Article 169 of the TPC of aiding members of an organization while being aware of their status and roles”, the Plenary Criminal Chamber of the Court of Cassation, 19/12/1995, 1995/9-306 – 1995/383.
8 PARLAR/YILDIRIM, p. 207.
9 In paragraph 160 of the judgment, the following observations of the Venice Commission are cited:
“106. In conclusion, the Venice Commission recommends, first, that the established criteria in the case law of the Court of Cassation that acts attributed to a defendant should show ‘in their continuity, diversity and intensity’, his/her ‘organic relationship’ to an organisation or they should prove that he/she acted knowingly and willingly within the ‘hierarchical structure’ of the organisation, should be applied strictly. The loose application of these criteria may give rise to issues concerning in particular the principle of legality within the meaning of Article 7 ECHR.
107. Second, the expression of an opinion in its different forms should not be the only evidence before the domestic courts to decide on the membership of the defendant in an armed organisation. Where the only evidence consists of forms of expression, the conviction for being a member of an armed organisation, would constitute an interference with the right of the defendants to freedom of expression, and that the necessity of this interference on the basis of the criteria as set forth in the case-law of the ECtHR, in particular the criteria of ‘incitement to violence’, should be examined in the concrete circumstances of each case.“