Events
the applicant; He was sentenced to prison for being a member of a terrorist organization before the date of the incident, which is the subject of the application.
The Office of the Chief Public Prosecutor determined that the applicant participated in the meeting and demonstration march organized to commemorate the members of the terrorist organization on the anniversary of their death and upon the call of the terrorist organization, and distributed some of the pennants with the picture of the leader of the terrorist organization to the attendees; started an investigation against the applicant on the grounds that his behavior in question constituted the crime of committing a crime on behalf of the terrorist organization, even though he was not a member of the terrorist organization. The applicant was referred to the Criminal Judgeship of Peace with the request of being arrested for the same crime, but the Criminal Judgeship of Peace rejected the arrest request and ordered a judicial control measure against the applicant. Upon the public prosecutor’s objection to this decision, the same criminal judgeship of peace decided on 23/1/2015 to annul its previous decision and to issue an arrest warrant for the applicant’s detention.
In the public case opened, the high criminal court sentenced the applicant to 1 year and 8 months for making propaganda for a terrorist organization, and to 5 years for committing a crime on behalf of a terrorist organization without being a member of a terrorist organization. Upon the applicant’s appeal against this decision, the Court of Cassation quashed the convictions due to the restriction of the applicant’s right to defense.
In the trial held after the reversal, the applicant was sentenced to 6 years and 3 months in prison for the crime of being a member of a terrorist organization and the continuation of his detention was ruled. Upon appeal, the Court of Cassation corrected the penalty amount for the applicant as 5 years and upheld the judgment of the first instance court. The Court of Cassation stated that it is possible for the applicant to be sentenced for the crime of making propaganda for a terrorist organization within the statute of limitations, but the applicant did not submit any information or documents to the Constitutional Court regarding the crime of making propaganda for the terrorist organization – after this stage.
allegations
The applicant alleges that the presumption of innocence was violated because a crime committed in the previous date and the sentence of which was executed was taken as a basis for the evaluation of a conviction for another crime committed later.
Court’s Evaluation
In the concrete case, the court of first instance evaluated that the actions of the applicant in the meeting attended before the Supreme Court decision of reversal constituted the crime of committing a crime on behalf of the terrorist organization although he was not a member of it, and did not mention his previous conviction in its decision. On the other hand, both in the judgment of reversal of the Court of Cassation and in the decision of the first-instance court after the judgment of reversal, it was seen that the applicant had committed the act subject to the application after he was conditionally released from the penitentiary institution where he was previously convicted for the crime of being a member of a terrorist organization.
As a matter of fact, after the Supreme Court’s decision of reversal, which emphasized that the applicant had contacted with the armed terrorist organization again after his conditional release, the first instance court decided that the applicant was a member of a terrorist organization, this time on the grounds of the Supreme Court’s annulment decision. Thus, the court of first instance considered as evidence not only that the applicant attended a meeting that was deemed to have turned into illegality, but also that the applicant had previously been convicted of being a member of a terrorist organization. In short, the courts of instance reached the conclusion that the necessary elements were formed for the applicant to be punished for being a member of a terrorist organization, based on the previous conviction.
With the said practice of the court of first instance, the burden of proof did not remain with the prosecution; transferred to the applicant. The approach of the court will result in the conviction of people who have been sentenced for the crime of being a member of a terrorist organization before, regardless of whether it constitutes a crime or not, and that any new action will be evaluated together with their previous actions and will be punished again and automatically for the crime of being a member of a terrorist organization.
It is incompatible with the presumption of innocence that the action subject to the application was committed by the court of instance after the applicant was sentenced to be a member of a terrorist organization after his conditional release from the penitentiary institution, and that the applicant had re-established contact with the terrorist organization and was punished for being a member of a terrorist organization for this reason.
The Constitutional Court decided that the presumption of innocence had been violated for the reasons explained.