19 July 2018 Thursday

Yılmaz Çelik [PA] (no. 2014/13117, 19 July 2018)

The Facts

In 2008, the incumbent chief public prosecutor’s office charged the applicant for being a member of an armed terrorist organization (Hizb-ut Tahrir) and making terrorist propaganda.

In his defence submissions, the applicant stated that Hizb-ut Tahrir was not an armed criminal or terrorist organization; and that its aim was to re-establish the Caliphate in the geography of Islam. He further noted that they tried to disseminate ideas of the organization without resorting to violence but particularly through the press.

The assize court (court) convicted the applicant for being a member and making propaganda of the terrorist organization. This decision was appealed before the Court of Cassation which upheld the first instance decision in terms of his membership to the terrorist organization but quashed it in terms of the latter offence. Thereafter, the applicant lodged an individual application with the Court.

A criminal case was filed against the applicant, by the chief public prosecutor’s office also in 2009, for establishing or managing an armed terrorist organization. The relevant court convicted him for his membership to the terrorist organization. This decision, which had been appealed, was upheld by the Court of Cassation. Thereafter, the applicant lodged an individual application with the Court.

The applicant’s two individual applications were joined as being of the same nature ratione materiae.

The Applicant’s Allegations

The applicant maintained that he had been sentenced for his membership to Hizb-ut Tahrir, which could not be regarded as a terrorist organization for not promoting violence; and that his substantial requests and arguments had not been taken into consideration during the criminal proceedings. He therefore alleged that his right to a fair trial had been violated.

The Court’s Assessment

It is the Constitutional Court’s duty to examine whether the inferior courts assessed, to a reasonable extent, the applicant’s allegations which were likely to change the outcome of the proceedings.

In cases concerning terrorist organizations, the primary issue required to be taken into consideration is not the ideas adopted by them but the question whether they have resorted to any means of violence with a view to attaining their aims. The Court expects the inferior courts to make an assessment, in a convincing manner, as to the existence of terrorist organization or relationships between accuseds and organization.

The applicant complaining of the courts’ failure to discuss whether Hizb-ut Tahrir was an armed organization or a terrorist organization maintained that opinions and ideas supported by this organization, which had not involved in any violent acts, did not constitute an offence. However, both the inferior court and the Court of Cassation confined themselves, in their decisions, to accepting that Hizb-ut Tahrir was a terrorist organization and did not make an assessment as to the applicant’s defence submissions.

According to the reports issued by the security directorate, the organization did not involve in any armed action during the period from 1967 when the first operation was conducted against the organization to 2016 when the last report submitted to Constitutional Court was prepared. The charges raised against the organization during the investigation and proceedings are to make propaganda of the organization, to perform acts and actions for staffing, to print and distribute organizational documents, to broadcast via the internet on behalf of the organization and to hold organizational meetings.

On the other hand, given the definition −“a policy involving force and/or violence”− attributed to terror and terrorism by international documents, comparative law, doctrine and judgments of the Court of Cassation, the inferior courts did not specify in their decisions for which reasons the Hizb-ut Tahrir was regarded as a terrorist organization.

A comprehensive and significant literature on the establishment, structure and world-wide actions of the Hizb-ut Tahrir organization was submitted to the courts. Besides, it is noted in the updated information notes on Hizb-ut Tahrir, which were issued by the security directorate and included in the case-file, that none of the publications of this organization includes any opinion inciting recourse to force and violence as well as any unlawful conduct constituting an offence.

Nevertheless, the courts did not assess, by considering these facts, whether Hizb-ut Tahrir was an organization within the meaning of Law no. 5237 and whether its acts constituted another offence. Besides, the amendments made to Law no. 3713 were not taken into consideration in the impugned judicial decisions.

As a requirement of the right to a reasoned decision, the applicant may request that legal considerations he raised before the inferior courts be taken into account, which is an aspect of the right to a fair trial.

In the present case, it has been observed that the applicant’s allegations likely to change the outcome of the proceedings were neither taken into consideration nor assessed properly. Therefore, the applicant’s right to a reasoned decision had been violated.

For the reasons explained above, the Court found a violation of the right to a reasoned decision under the right to a fair trial which is safeguarded by Article 36 of the Constitution.