Information Note on the Court’s case-law 235

December 2019

Parmak and Bakır v. Turkey - 22429/07 and 25195/07

Judgment 3.12.2019 [Section II]

Article 7

Article 7-1

Nullum crimen sine lege

Expansive judicial interpretation inconsistent with domestic case-law and essence of offence as defined by law: violation

Facts – In 2006 the applicants were convicted of membership of a terrorist organisation on account of havi ng had meetings with each other and disseminated flyers in 2002, as well as possessing illegal periodicals and a manifesto. They were convicted under the original version of the Prevention of Terrorism Act (Law no. 3713), in which terrorism was described a s any act committed by means of pressure, force and violence, terror, intimidation, oppression or threat, with one or more of the listed political or ideological aims, while an organisation was simply defined as any type of association of two or more peopl e pursuing a common goal. The domestic courts also took into account the 2003 legislative amendments to Law no. 3713 which narrowed down the definition of “terrorism” and “terrorist organisation” by including the use of force and violence therein, as well as several other cumulative conditions, namely: the intent to commit acts criminal in nature; additional methods of pressure, terror, intimidation, oppression or threat; and for one of the listed ideological or political motives. The domestic courts held, in particular, that the term “force and violence” should be interpreted broadly and include situations where violence, although not used in the ordinary physical sense, was nevertheless adopted as the goal of an organisation, as in the applicants’ case. Th e statutory requirement of “force and violence” was therefore found to be satisfied in their case because the manifesto and the texts which they had disseminated were of a nature so objectionable as to amount to moral coercion of the public. The concept of moral coercion did not exist in the text of the applicable law.

Law – Article 7: The main question in the present case concerned an element of novel judicial interpretation, namely whether the applicants’ conviction for membership of a terrorist organisa tion on the grounds that their acts had constituted moral coercion had been consistent with the essence of that offence and could reasonably have been foreseen by the applicants at the time of their participation in the events of 2002.

The Court was unabl e to agree with the Government’s argument that the applicants’ conviction had been foreseeable in accordance with the original versions of Law no. 3713, in force at the time the offences were committed, given that those provisions had in any event defined terrorism in a broader sense. First, the principle that more lenient provisions of criminal law had to be applied retrospectively was implicitly guaranteed by Article 7 of the Convention and embodied in the rule that where there were differences between th e criminal law in force at the time of the commission of the offence and subsequent criminal laws enacted before a final judgment was rendered, the courts had to apply the law whose provisions were most favourable to the defendant. Moreover, under Turkish criminal law, the provisions that were most favourable to the offender had to be applied. Secondly, the domestic courts had themselves applied the amended 2003 version, in conjunction with the original version of the law, to the applicants. The Court there fore confined its examination of the lawfulness of the applicants’ conviction to those versions and not to those in force at the time of the commission of the offence.

When examining whether the domestic courts’ broad interpretation of the text of the law was reasonably foreseeable, the Court had regard, firstly, to whether the interpretation in question was the resultant development of a perceptible line of case-law. As it appeared, previous interpretations of the relevant provisions by the domestic court s did not provide a basis for the use of the concept of “moral coercion”. The Government had not presented the Court with a comparable case in which an association had been deemed to be a terrorist organisation on the sole basis of the nature of its writte n declarations and despite the absence of violent acts attributable to that organisation. Nor had it provided examples of domestic case-law that made use of the concept of “moral coercion” in the context of terrorist offences.

Secondly, the Court considere d whether the wording of the impugned provisions could nevertheless be said to reasonably imply this concept. In so doing, the Court had to satisfy itself that the impugned concept was compatible with the essence of the offence, that is to say, invoking it in the circumstances of the case could be considered as reasonable irrespective of whether it had been invoked by the domestic courts for the first time. The wording of the relevant provisions suggested that the essence of the offence of membership of a t errorist organisation was to join an association whose goal and mode of operation was to resort to the criminal use of force, violence and mass intimidation in order to advance certain political or ideological causes. The fact that the law-makers had chose n to single out the use of violence as a necessary means to commit terrorism in the 2003 version of Law no. 3713 lent support to the conclusion that actual violence or the intent to use such violence was central to the definition of the offence.

It had been the first time that the domestic courts had been called to determine whether the impugned organisation could be proscribed as a terrorist organisation. In that respect, the Turkish Court of Cassation had ruled that, where domestic courts were c onfronted with the task of assessing for the first time whether an organisation could be classified as terrorist, they had to carry out a thorough investigation and examine the nature of the organisation by scrutinising its purpose, whether it had adopted an action plan or similar operational measures, and whether it had resorted to violence or a credible threat to use violence in pursuing that action plan. However, on the basis of the facts as established by the domestic courts, the cumulative elements of the offence of membership of a terrorist organisation, as construed by the Court of Cassation, had not been demonstrated to be present in the applicants’ cases. While the domestic courts had held that the organisation in question had not engaged in any arm ed attacks, they had not addressed the question whether it had adopted an action plan or similar operational measures for such a purpose. In this connection, there was no indication in the case file that the organisation in question, beyond the mere procla mation of certain goals, had adopted any concrete preparatory steps or indeed any form of action with a view to carrying out violent acts. The domestic courts had relied on the Security Directorate’s information note, which had considered the impugned orga nisation to be a Marxist-Leninist illegal organisation whose ultimate aim had been to bring about an armed revolution in Turkey. However, that note could not be regarded as relevant since the acts attributed to the organisation in that note had consisted o nly of the distribution of flyers and texts and the possession of books by the suspects.

It was therefore clear that the domestic courts had convicted the applicants on membership of a terrorist organisation because of the political ideas and aspirations e xpressed in some of the documents found to be the product of the organisation. They had not explained how the concept of moral coercion related to the constitutive elements of that offence, including with respect to the degree of coercion and the severity it had to attain to warrant the conclusion that it amounted to terrorism. The domestic courts had therefore chosen to exercise their judicial discretion in an expansive manner by adopting an interpretation that had been inconsistent with both prevailing na tional jurisprudence and the essence of the offence as defined by the national law. In the circumstances of the present case, they had therefore infringed the reasonable limits of acceptable judicial clarification contrary to the guarantees of Article 7 of the Convention.

The Court did not lose sight of the difficulties associated with the fight against terrorism and the challenges States faced in the light of the changing methods and tactics used in the commission of terrorist offences. The Court was also mindful of the absence of a universally accepted definition of terrorism. However, this did not mean that the fundamental safeguards enshrined in Article 7 of the Convention, which included reasonable limits on novel or expansive judicial interpretations i n the area of criminal law, stopped applying when it came to prosecution and punishment of terrorist offences. The domestic courts had to exercise special diligence to clarify the elements of an offence in terms that made it foreseeable and compatible with its essence.

In the circumstances of the present case, the domestic courts had unjustifiably extended the reach of the criminal law to the applicants’ case in contravention of the guarantees of Article 7 of the Convention.

Conclusion : violation (unanimous ly).

The Court also found, unanimously, a violation of Article 8 on account of a travel ban imposed on the second applicant, residing in Germany, and maintained automatically over four years, while the criminal proceedings against him were pending in Turke y.

Article 41: EUR 7,500 to the first applicant and EUR 760 to the second applicant in respect of pecuniary damage; EUR 9,750 to the second applicant in respect of non-pecuniary damage.

(See also S.W. v. the United Kingdom , 20166/92 , 22 November 1995; Başkaya and Okçuoğlu v. Turkey [GC], 23536/94 and 24408/94 , 8 July 1999; İletmiş v. Turkey , 29871/96, 6 December 2 005, Information Note 81 ; Jorgic v. Germany , 74613/01, 12 July 2007, Information Note 99 ; Scoppola v. Italy (no. 2) [GC], 10249/03, 17 Septemb er 2009, Information Note 122 ; and Koprivnikar v. Slovenia , 67503/13, 24 January 2017, Information Note 203 )

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