Top court rules on ‘overly broad’ law on criminal organization membership

Turkey’s Constitutional Court has issued a so-called pilot judgment about a provision of the Turkish Penal Code prescribing the penalty for offenses committed “on behalf of” an armed criminal organization, asking the Turkish parliament to fix the structural problems that render the law “overly broad,” Deutsche Welle’s Turkish service reported on Tuesday.

In a reasoned decision published on Tuesday, the top court ruled that the conviction of Hamit Akgün on charges of committing a crime on behalf of an organization due to his attendance at a protest in the southeastern city of Diyarbakır in 2011 violated his right to “hold unarmed and peaceful meetings and demonstration marches,” enshrined in Article 34 of Turkey’s constitution.

“Any person who commits an offense on behalf of an organization, although he is not a member of that organization, shall also be sentenced for the offense of membership in that organization. The sentence to be imposed for membership in that organization may be decreased by half. This provision shall only be applied in respect of armed organizations,” Article 220 § 6 of the Turkish Penal Code says.

The top court said the provision of the law defining the offense was “overly broad” and likely to result in violating defendants’ fundamental rights and freedoms, such as freedom of speech, the right to hold meetings and demonstrations, the freedom of association and freedom of thought, conscience and religion. 

Thus the court issued a “pilot judgment,” which means that it will decide similarly in future applications stemming from the same provision.

The pilot-judgment procedure was adopted as a means of dealing with large groups of identical cases that derive from the same underlying problem. These are referred to as repetitive cases. The pilot judgment of the court covers all similar cases raising the same issue.

The court ruled to “notify the legislature to find a solution to the structural problem.”

Turkey’s criminal laws are often criticized by rights groups and international bodies for their vague and broad provisions, resulting in rights violations.

Turkish courts sentenced 266,811 people to prison on convictions of terrorism between 2016 and 2020, abusing vague anti-terrorism legislation, according to a survey by the Arrested Lawyers Initiative of Justice Ministry data.

According to the survey, official statistics highlight that Turkish public prosecutors filed more than 420,000 charges under Article 314 (membership in a terrorist organization) of the Turkish Penal Code in the last eight years. 

According to a report by the Council of Europe, Turkey has the largest population of inmates convicted of terrorism-related offenses. The report shows there are currently a total of 30,524 inmates in COE member states who were sentenced for terrorism, and of those, 29,827 are in Turkish prisons.