ARTICLE 220/6 AND 220/7 OF THE TURKISH PENAL CODE: THE “FORESEEABILITY” REQUIREMENT IN IŞIKIRIK V. TURKEY, BAKIR AND OTHERS V. TURKEY AND İMRET V. TURKEY JUDGMENTS OF THE EUROPEAN COURT OF HUMAN RIGHTS

Prof.Dr. Işıl Ergüvenç Karakaş*

7 Mayıs 2021

 

I. Foreseeability of Article 220/6 of the Turkish Penal Code: Işıkırık Case

In the judgment of Işıkırık v. Turkey (no. 41226/09) of 14 November 2017, the Court examined whether the conviction of a peaceful demonstrator under paragraph 6 of Article 220 and paragraph 2 of Article 314 of the Criminal Code constituted a breach of Article 11 of the Convention.

The applicant was convicted of membership of the PKK (an armed terrorist organisation) and disseminating propaganda in favour of the same organisation. He was sentenced to six years and three months’ imprisonment.

The domestic courts convicted him on the grounds that:

  • He had attended the funeral of four militants, had walked in front of one of the coffins during the funeral and made a “V” sign and;
  • He had applauded while other demonstrators chanted slogans in support of Öcalan during a gathering at his university.

The applicant’s conviction of membership of the terrorist organisation was based on paragraph 2 of Article 314 of the Criminal Code (membership in armed organisations) in connection with paragraph 6 of Article 220.

At the relevant time, Article 220 § 6 read as follows:

“Anyone who commits a crime on behalf of an (illegal) organisation, even if they are not a member of that organisation, shall also be punished for being a member of the organisation.”

The domestic courts considered that since both the funeral and the demonstration had been held following calls and instructions issued by the PKK, the applicant, who had participated in those events, should be considered as having acted on behalf of that organisation.

The applicant applied to the ECHR alleging that his conviction had breached Article 10 of the Convention. The Court decided to examine this complaint from the stand point of Article 11.

In its judgment, the Court first found that the applicant’s conviction under paragraph 6 of Article 220 and paragraph 2 of Article 314 had constituted an interference with his right guaranteed under Article 11. It then went on examining whether the interference in question was prescribed by law.

In that connection, first the Court noted that the legislation in question was accessible.

The Court subsequently examined whether paragraph 6 of Article 220 fulfilled the “foreseeability” requirement. It noted that the text of paragraph 6 of Article 220 tied the status of membership of an illegal organisation to the mere fact of a person having acted “on behalf” of that organisation, without the prosecution having to prove the material elements of actual membership.

Furthermore, the wording of paragraph 6 of Article 220 of the Criminal Code did not itself define the meaning of the expression “on behalf of an illegal organisation”. On the other hand, in the context of demonstrations, the meaning of that expression and paragraph 6 of Article 220 was elaborated by the decision dated 4 March 2008 of the Plenary Court of Cassation (Criminal Divisions).

The Court considered that the requirement of foreseeability required a criminal law provision to be formulated with sufficient precision and to afford a measure of protection against arbitrary interferences by the public authorities and against the extensive application of a restriction to any party’s detriment.

The Court hence examined whether paragraph 6 of Article 220 of the Criminal Code afforded that protection taking account of the clarifications as to its scope and substance provided by the national courts.

In that connection, the Court made the following observations:

   1. Extensive application of the criteria for membership of an illegal organisation to the detriment of the applicant:

The domestic courts interpreted the notion of “membership” of an illegal organisation under paragraph 6 of Article 220 in extensive terms. The mere fact of being present at a demonstration, called for by an illegal organisation and openly acting in a manner expressing a positive opinion towards the organisation in question, was sufficient to be considered acting “on behalf of” the organisation.

The domestic courts then punished those accused as actual members. In contrast, when Article 314 of the Criminal Code was applied alone, the domestic courts must have regard to the “continuity, diversity and intensity” of the acts of the accused.

In Işıkırık’s case, on the other hand, when Article 314 was applied in connection with paragraph 6 of Article 220, he was convicted of membership of an illegal armed terrorist organisation merely on account of his attendance at two public meetings, (which, according to the first-instance court, were held in line with the instructions by the terrorist organisation), walking close to coffins and making a “V” sign during a funeral and applauding during a demonstration. Hence, when applied in connection with paragraph 6 of Article 220, the criteria for a conviction under paragraph 2 of Article 314 were extensively applied to the detriment of the applicant.

    2. Failure to provide sufficient measure of protection against arbitrary interferences:

When Article 314 is applied alone, the courts assessed whether an accused person had committed offences within the “hierarchical structure” of an armed organisation. On the other hand, when the same Article was applied with reference to paragraph 6 of Article 220 in the applicant’s case, the question of acting within a hierarchy became irrelevant and he was convicted of membership of an armed organisation simply because he was considered to have acted “on behalf of” the terrorist organisation.

The Court considered that the array of acts that potentially constituted a basis for the application of a severe criminal sanction in the form of imprisonment under paragraph 6 of Article 220 were so vast: The wording of the provision and its extensive interpretation by the domestic courts did not afford a sufficient measure of protection against arbitrary interferences by the public authorities.

   3. Failure to differentiate between peaceful demonstrators and members of illegal organisations:

The Court also found that as a result of the applicant’s conviction for acts which fell within the scope of Article 11, there remained no distinction between the applicant, a peaceful demonstrator, and an individual who had committed offences within the structure of the terrorist organisation. 

Such extensive interpretation of a legal norm could not be justified when it had the effect of equating mere exercise of fundamental freedoms with membership of an illegal organisation in the absence of any concrete evidence of such membership.

In that connection, the Court noted that it did not underestimate the difficulties to which the fight against terrorism gave rise. However, in its view, the very essence of the right to freedom of peaceful assembly and, thereby, the foundations of a democratic society, was undermined when the applicant was held criminally liable under paragraph 6 of Article 220 and Article 314 of the Criminal Code for the mere fact of attending a public meeting and expressing his views therein.

   4. Severe, disproportionate and deterrent prison sentences:

The applicant was given a prison sentence of six years and three months and was imprisoned for a period of four years and eight months in total. When demonstrators, such as the applicant, faced the charge of membership of an illegal armed organisation, they risked an additional sentence of between five and ten years in prison. The Court found this sanction strikingly severe and grossly disproportionate to their conduct. In its view, paragraph 6 of Article 220 would inevitably have a particularly “chilling effect” on the exercise of the rights to freedom of expression and assembly. The Court also found that the application of paragraph 6 of Article 220 had a great deal of potential to deter other members of the public from attending demonstrations and, more generally, from participating in open political debate.

In the light of the abovementioned considerations, the Court concluded that paragraph 6 of Article 220 was not “foreseeable” in its application since it did not afford the applicant the legal protection against arbitrary interference with his right under Article 11 of the Convention.

II. Foreseeability of Article 220/7 of the Turkish Penal Code: Bakır and Others v. Turkey and İmret v. Turkey (no. 2) Cases

In the judgments of Bakır and Others v. Turkey and İmret v. Turkey (no. 2) (applications nos. 46713/10 and 57316/10, 10 July 2018) the Court examined whether the conviction of some of the applicants under paragraph 7 of Article 220 and paragraph 2 of Article 314 of the Criminal Code constituted a breach of Article 11 of the Convention. The applicants in the first case were peaceful demonstrators who had attended two demonstrations.

The applicant in the second case was a local politician who had attended several public gatherings as a demonstrator and speaker.

The Court focused on the “foreseeability” requirement in these two cases as it did in the case of Işıkırık v. Turkey, the only difference being the provision of the Criminal Code on the basis of which the applicants had been convicted.

At the relevant time, Article 220 § 7 of the Criminal Code provided as follows:

“Anyone who aids an (illegal) organisation knowingly and willingly, even if he does not belong to the hierarchical structure of the organisation, shall be punished as a member of the organisation.”

In its judgments of Bakır and Others and İmret, the Court first noted that paragraphs 6 and 7 of Article 220 did not appear to be fundamentally different in terms of their construction. The Court observed that the texts of both paragraphs 6 and 7 of Article 220 of the Criminal Code tied the status of membership of an illegal organisation to the mere facts of a person having acted “on behalf” of that organisation and “aided an illegal organisation knowingly and willingly”, without the prosecution having to prove the material elements of actual membership. Besides, the wording of paragraph 7, like paragraph 6, did not define the meaning of the expression “aiding knowingly and willingly”. The sole difference between those two paragraphs was that paragraph 6 required an offence to be committed on behalf of an illegal organisation for a conviction for membership of that organisation, whereas for such a conviction with reference to paragraph 7, the person in question did not have to have committed an offence proscribed by the criminal codes. A person’s acts which were regarded by the domestic courts as providing aid to an illegal organisation could lead to his or her conviction for membership of that organisation, even where those acts did not constitute an offence under domestic law. Referring to its Işıkırık judgment and the Venice Commission’s report of 2016, the Court also found that the domestic courts seemingly did not develop a consistent judicial interpretation of that provision in the context of demonstrations. 

The Court stated, as in its Işıkırık judgment, that the notion of foreseeability required that a rule was formulated with sufficient precision and afforded a measure of protection against arbitrary interferences by the public authorities and against the extensive application of a restriction to any party’s detriment. The Court then made an assessment almost identical to the assessment made in the Işıkırık judgment and explained above under four headings (extensive application of the criteria for membership of an illegal organisation to the detriment of the applicants, failure to provide sufficient measure of protection against arbitrary interferences, failure to differentiate between peaceful demonstrators and members of illegal organisations, and severe, disproportionate and deterrent prison sentences). It concluded that paragraph 7 of the Article 220 was not “foreseeable” in its application, since it did not afford the applicants the legal protection against arbitrary interference with their rights under Article 11 of the Convention.

III. Conclusion

In these three judgments, the Court examined the lawfulness of the interferences with the applicants’ right to freedom of assembly. While doing that, the Court had a particular regard on the quality of paragraphs 6 and 7 of Article 220 of the Criminal Code.

In that connection, the Court reiterated that a norm must be formulated with precision to enable individuals to regulate their conduct and to foresee, the consequences which a given action may entail to a degree that is reasonable in the circumstances. It also noted that interpretation by the competent domestic courts of the legal norms could shed light on their content. The Court however considered that the notion of foreseeability was not confined to the “formulation with sufficient precision” of the norm by the legislature and the judiciary. Its examination of paragraphs 6 and 7 of Article 220 of the Criminal Code, summarised under the four headings above concerned whether the application of these provisions were compatible with the principle of rule of law, which, for the Court, is one of the basic principles of a democratic society enshrined in the Convention.

 

Kadir Has Üniversitesi Milletlerarası Hukuk Ana Bilim Dalı
Prof. Dr. Işıl Ergüvenç Karakaş
Kadir Has Üniversitesi Milletlerarası Hukuk Ana Bilim Dalı

* isil.erguvenc@khas.edu.tr