Communicated on 19 February 2021 Published on 8 March 2021

SECOND SECTION

Application no. 17389/20 Åžaban YASAK against Turkey lodged on 2 April 2020

SUBJECT MATTER OF THE CASE

The application concerns the applicant ’ s conviction for membership of a terrorist organisation, namely FETÖ/PDY ( Fetullahist Terrorist Organisation / Parallel State Structure).

On 30 January 2017 the applicant, who was a graduate student at the material time, was arrested and taken into police custody on suspicion of membership of FETÖ/PDY and on 6 February 2017 he was placed in pre ‑ trial detention.

On 4 August 2017 the Ç orum public prosecutor filed a bill of indictment against the applicant with the Kayseri Assize Court, accusing the applicant of membership of the armed terrorist organisation FETÖ/PDY under Article 314 § 2 of the Criminal Code. The accusation was based on the following evidence: ( i ) statements from four different witnesses attesting that the applicant was responsible for the FETÖ/PDY-linked students in a certain geographical area prior to 2014 and used the code name “Recep”; (ii) bank account at Bank Asya ; (iii) employment at a private tutoring centre which was considered to be affiliated with FETÖ/PDY; and (iv) mobile phone traffic records of another suspect facing FETÖ/PDY related charges suggesting contact with the applicant.

At the second hearing held on 14 February 2018, the Çorum Assize Court convicted the applicant as charged and sentenced him to seven years and six months ’ imprisonment. The assize court largely relied on the evidence indicated in the bill of indictment, and noted in addition that the applicant had been a member of two associations affiliated with FETÖ/PDY.

On 3 July 2018 the Samsun Regional Appeal Court dismissed the applicant ’ s appeal request and on 21 February 2019 his conviction was upheld by the Court of Cassation.

On 25 February 2020 the Constitutional Court summarily dismissed the applicant ’ s individual application as inadmissible.

The applicant mainly complains under Article 3 of the Convention that the overcrowding of the custody and detention facilities amounted to inhuman and degrading treatment.

He further complains under Article 7 that he was convicted on the basis of acts that did not constitute a crime and that did not have any connection with the attempted coup of 15 July 2016.

QUESTIONS TO THE PARTIES

Article 3

( a ) Did the material conditions in which the applicant was detained in police custody and during his subsequent pre-trial detention amount to inhuman and degrading treatment within the meaning of Article 3 of the Convention, having particular regard to his allegations concerning the overcrowding in the relevant detention facilities, which had allegedly led to him sleeping on the floor (see, for instance, Muršić v. Croatia [GC], no. 7334/13, §§ 96-177, 20 October 2016 )?

( b ) Did the applicant have available to him any effective domestic remedies in relation to his complaints regarding the material conditions of his detention? If so, did the applicant duly exhaust these remedies in a timely manner, as required by Article 35 § 1 of the Convention (see, for instance, Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-90, 25 March 2014 )? In particular, did the Constitutional Court examine the applicant ’ s complaints in this regard?

Article 7

Was the applicant ’ s conviction for membership of a terrorist organisation compatible with the requirements of Article 7 of the Convention? In particular;

( a ) Were the domestic legal provisions, on the basis of which the applicant had been convicted, foreseeable in their application? In that connection, could the domestic courts ’ interpretation of FETÖ/PDY as a terrorist organisation be reasonably foreseen by the applicant at the time of the acts on which his conviction rested?

( b ) What are the elements of the offence of membership of a terrorist organisation set out under Article 314 § 2 of the Criminal Code, and were those elements present in the applicant ’ s case? In particular, did the domestic courts duly establish whether the mental element of the relevant offence, as laid down in the case-law of the Court of Cassation, had materialised in the applicant ’ s case, as required under Article 7 of the Convention (see, for instance, G.I.E.M. S.R.L. and Others v. Italy [GC], nos. 1828/06 and 2 others, §§ 242 and 246, 28 June 2018)?

The parties are requested to submit the relevant case-law of the Court of Cassation setting out the material elements of the crime of membership of a terrorist organisation under Article 314 § 2 of the Criminal Code .

( c ) Was the conviction in question imposed in the absence of any criminally reprehensible conduct on the part of the applicant, as argued by him?

( d ) Could the applicant have reasonably foreseen at the material time that the acts attributed to him would be construed as evidence of the offence of “membership of an armed organisation” under Article 314 § 2 of the Criminal Code? Did the application of that provision in the circumstances of the applicant ’ s case extend the scope of criminal liability for the offence in question in breach of the principle of legality? In any event, was the national courts ’ interpretation of Article 314 § 2 of the Criminal Code to the facts of the applicant ’ s case consistent with the essence of that offence and could it be reasonably foreseen (see, S.W. v. the United Kingdom , 22 November 1995, § 36, Series A no. 335 ‑ B; Streletz , Kessler and Krenz v. Germany [GC], nos. 34044/96 and 2 others, § 50, ECHR 2001 ‑ II; Jorgic v. Germany , no. 74613/01, § 109, ECHR 2007 ‑ III and Vasiliauskas v. Lithuania [GC], no. 35343/05, § 155, ECHR 2015)?

The Government are requested to provide the case-law of the Court of Cassation where the material elements of the offence of membership to a terrorist organisation under Article 314 § 2 of the Criminal Code comprised of lawful acts, as alleged by the applicant in the present case.

The Government are further requested to provide information as to the position and the responsibilities of a student coordinator (“ b ö lge talebe mesul ü ”, “ büyük bölge talebe mesulü ” or “ İ lci ”) in the structure of FETÖ/PDY and to explain, in particular, what organisational aim the activities undertaken by such coordinators served. The Government are further requested to indicate whether there is any information in the case file as to the time frame of the applicant ’ s responsibility as a student coordinator, and whether any organisational activities had been discovered after that period.

The Government are lastly requested to provide a copy of the entire case file .