On August 3, 2021, the “pilot decision” of the Plenary of the Constitutional Court of Turkey in a case concerning the right to hold meetings and demonstration marches (Hamit Yakut [GK], B. No: 2014/6548, 10/6/2021) was published in the Official Gazette. The court found that the trial court had violated the constitutional right to hold meetings and demonstration marches by finding the defendant guilty of committing a crime on behalf of an armed criminal organization by attending a public demonstration organized by the organization.
Background to the Case
According to the findings of the trial court, the defendant had attended an unauthorized public demonstration organized by an armed group designated as a terrorist organization by Turkey and the United States in which the demonstrators resisted calls to disperse and engaged in violent clashes with security forces. The defendant was apprehended after hot pursuit and charged with the crimes of resisting a call for an unlawful assembly to disperse, violently resisting law enforcement officers performing their duties, and attending a public demonstration while carrying arms. He was also charged under articles 220(6) and 314 of the Turkish Penal Code, which, collectively, require a court to convict defendants of being members of an armed criminal organization — even when they are not actually members of the organization — in addition to the original crime of membership in an armed criminal organization when it can be proved that they committed the original crime on behalf of the organization. The trial court acquitted the defendant of the violent resistance and armed attendance counts. The court found the defendant guilty of resisting calls to disperse and sentenced him to six months in prison, but deferred the sentence under article 231(5) of the Criminal Procedure Code because the sentence was below the statutory threshold and the defendant had no history of crime. However, finding that the demonstration had been called by an armed criminal organization and that demonstrators were displaying propaganda material such as banners and shouting slogans sympathetic to the organization, the court determined that the crime of resisting dispersal was committed “on behalf of” the organization, and thus sentenced the defendant to an additional three years and nine months for being a member of an armed criminal organization in accordance with articles 220(6) and 314 of the Penal Code — a sentence that is not eligible for deferral under the relevant procedural rules. After exhausting the ordinary remedies, the defendant applied to the Constitutional Court under the “individual application” procedure, claiming a violation of article 34 of the Turkish Constitution on the right to hold meetings and demonstration marches.
The Constitutional Court, citing multiple judgments of the European Court of Human Rights in which Turkey had been found to violate the right to freedom of assembly of applicants (enshrined in article 11 of the European Convention of Human Rights) in cases involving similar use of article 220(6) of the Penal Code, determined that a structural problem existed with the application of article 220(6) that could give rise to future violations of the constitutional right to hold meetings and demonstration marches.
Noting that article 13 of the Constitution provides that constitutional rights can be restricted only by law, the court moved on to its “legality review,” appraising whether article 220(6) and its application by the courts could be considered a legal rule that “precludes organs using public authority from taking arbitrary actions” and is “accessible, foreseeable, and unambiguous so that individuals are aware of the law.” (§ 82.) This formulation reflects the standard that the Constitutional Court uses to scrutinize enacted rules to find whether a rule potentially limiting a constitutional right falls foul of the general requirement of article 13.
In its legality review, the court, among other things, significantly found that the guidance given to the trial courts by the Criminal Chambers of the Court of Cassation (the highest criminal court in the country within the ordinary court system), was vague and overly broad, the guidance being the result of some decisions of the Court of Cassation that had considered a public demonstration organized on the calls or orders of an armed terrorist organization, or a demonstration organized merely in relation to days or events to which the organization ascribes importance, to be sufficient evidence of the crime of “acting on behalf of the criminal organization,” as provided in article 220(6) of the Penal Code. The court emphasized that for a conviction of the original crime of membership in a criminal organization under article 220 of the Penal Code (and article 314 of the Penal Code for membership in an armed criminal organization), the prosecution must prove beyond a reasonable doubt that the defendant willingly took place in the hierarchical structure of the organization, shown by the continuity, variety, and consistency of the defendant’s relevant activity within the organization. (§ 91.)
The court pointed out that article 220(6) of the Penal Code by requiring courts to convict the defendant for the crime of being a member of a criminal organization (armed criminal organization, by reference to article 314) even though under the direct application of article 314 of the Penal Code he is not considered to be a member circumvents the evidential safeguards of the more serious crime of being a member of the organization (that is, more serious compared to acting on behalf of an organization). Moreover the court found that when article 220(6) is applied in conjunction with the Court of Cassation’s broad interpretation of “acting on behalf of a criminal organization,” the application of Penal Code article 220(6) in its present form — in the applicant’s case and in general — constituted interference with the right to hold meetings and demonstration marches that was not sufficiently foreseeable and unambiguous and, thus, a violation of that right enshrined in article 34 of the Constitution. (§ 108.)
Acknowledging that the violation of the right was caused by a “structural problem arising out of the very text of the law and broad interpretation of the law by [the courts]” and that before any similar applications were filed and pending before it, the court decided to issue its opinion as a “pilot decision” and send a copy of the decision to the legislature for the lawmakers to act upon. (In Turkish constitutional adjudication, the Constitutional Court cannot declare laws unconstitutional under the “individual application” procedure, which was used in this case.) (§§ 126–35.)The “pilot decision” procedure is provided in article 75 of the Internal Regulations of the Constitutional Court. The procedure is employed when the court determines that the violation of a constitutional right in a given case arises from a structural problem that has given rise to other applications and can be expected to give rise to more applications in the future. When the court decides to adjudicate an application under the pilot decision procedure, it may adjourn all other cases that are before it that relate to the same structural problem. Once a pilot decision is issued, administrative bodies must apply the ruling in relevant applications made to them; or for cases that reach the Constitutional Court, the court may consolidate the cases and decide them in line with the pilot decision. In many ways, the pilot decision procedure is similar to the “pilot judgment” procedure of the European Court of Human Rights.