Armed terrorist organization in terms of criminal law is regulated in the Article 314 of the Turkish Penal Code (TPC). According to this article, armed organizations are the organizations established “with the purpose of committing the offences listed in parts four and five of this chapter.” The offences referred in the article are the ones between TPC Article 302 and 316.
Then, the organizations aiming to commit the crimes enumerated between TPC Article 302 and 316 are armed terrorist organizations. According to these articles, the “Ultimate Aim” of the armed terrorist organizations are disrupting the unity of the State, replacing the constitution, and abolishing the Turkish Grand National Assembly or the government.
Arm, Use of Force and Violence (Method)
“Arm” (TPC, Article 314/1) and “use of force and violence” (Law on Fight Against Terrorism, Act No: 3713) are necessary components of armed terrorist organizations. These two elements constitute the “method” of the armed terrorist organizations.
In other words, armed terrorist organizations are the organizations aiming to reach their aims by using arm, use of force and violence. For instance, an organization aiming to replace the Constitution by using legal methods, instead of arm, use of force. And violence, cannot be accepted as an armed terrorist organization.
Knowledge and Willingness (Moral Element)
Moral element in the armed organization crimes is “direct intent.”The TPC Article 21 says that the intent is “knowingly and willingly conducting the elements in the legal definition of an offence,” and “The existence of a criminal offence depends upon the presence of intent,” the same article states.
According to the Article 21, direct intent consists of “knowing” and “willing” simultaneously. If there is no “knowing” or “willing,” there is no crime also.
An armed organization offense can be committed only through direct intent. And this direct intent has to be existent for all elements, like“ultimate aim” and “method.”
So, members of an armed organization are the individuals who are aware of the ultimate goal of the organization and willing to realize it, while, at the same time, they know the method as well, which are arm, violence and use of force. For those who do not “know” and “will” this ultimate aim and method do not incur the guilt of armed terrorist organization.
For this reason, private intent is looked for in the crime of armed terrorist organization membership. The person has to be in an armed terrorist organization knowingly and take part in its hierarchical structure intentionally.
To sum up these three element more clearly:
Members of armed organization are the people who and the ultimate aim of the structure they belong to – ultimate aim which is disrupting the unity of the State, replacing the constitution, and abolishing the Turkish Grand National Assembly or the government. On top of it, they also and “will” that this ultimate aim will be realized by using arm and violence-use of force.
It is not possible to accept the people, who do not know the ultimate aim or method of the organization or whose knowledge cannot be proven, as members of an armed terrorist organization, according to the law.
On the other hand, knowing that a structure is an armed terrorist organization does not mean an affiliation with it. An organic link, association with its hierarchical structure, and the activities, which have been carried out within the scope of the organization, have to be proven.
Burden of Proof for Knowing and Willingness
Direct intent (specific intent), which means knowing and willingness, has to be proven “indisputably” with “material evidence.”
The decisions are given with “absolute judgment” in the Criminal Law. Making assumption, possibility, interpretation, and comparison is not possible. Therefore, a person’s knowledge of the organization’s ultimate aim and method has to be proven for certain. If there is a suspicion about her/his knowledge of these, s/he is thought to be “not aware.” The slightest suspicion means acquittal in the criminal law. Otherwise, the principles like favor the accused in doubt (in dubio pro reo) and presumption of innocence would be violated.
In this respect, propositions like,
assumed her/his knowledge
able to know
impossible to not know
expected to know
has to know absolutely
I assume her/his knowledge
do not have validity in the criminal law. There is no assumption or possibility in the criminal law. There is only absolute truths. And knowledge and willingness have to be proven with material evidences.
Knowledge and Willingness in FETO/PDY Trials
In its decision no.2015/3, the Penal Department no. 16 of the Court of Cessation decided that the structure, named “the Gulen Movement” or“Hizmet Movement,” is an armed terrorist organization (FETO/PDY), accepting that its ultimate goal is abolishing the government. Regardless of the fact that whether it is armed or not, based on this decision, the local courts have started to give decisions that all members of this organization are the members of an armed terrorist organization. The Penal Department of the Court of Cessation no. 16 has confirmed some of these decisions.
So, the above-mentioned decision has became very important. In this decision, the Department convicted two judges, as the court of first instance, of being member of this armed terror organization.
However, the decision has not clarified many issues. The Department has found the judges guilty without revealing or proving the elements of the crime which the defendants accused of.
According to the above-mentioned provision, proving that an organization’s ultimate aim is abolishing the government is a totally separate issue than proving a member’s knowledge of and willingness for this ultimate aim. These two issue have to be evidenced separately.
This article does not study whether the Gulen Movement’s ultimate aim is abolishing the government, a coup d’etat, or not. Yet, even if it is, its members’ knowledge of the coup and willingness for it have to be proven too. This is because the Movement is a social and legal structure at the same time – a structure which had been known and supported by many parts of the society for decades.
The members’ religious and ideological unity within the scope of the law is essential in such structures. Holding members of a non-governmental organization responsible for its administrators’ some non-legal activities violates the principle of individual criminal activity.
Nevertheless, furthering unlawfulness, the Department no. 16 made an interpretation as “secret ultimate goal.” By this way, it accepted that the Movement had kept its ultimate aim, the coup, so secret that it had concealed this aim from its members too. If the aim is “top secret,” detecting and proving, which Gulenists had known the coup previously, has became more important and more difficult. After all, assuming that all members had known this secret ultimate aim is legally and logically not reasonable.
Accepting that the Movement’s secret ultimate aim was a coup in its decision no.2015/3, the Department no.16 accepted in the same decision that two judges who have been under detention since April 2015 had known the coup, the secret ultimate aim.
However, the Department grounded its decision on possibilities and assumptions, instead of “absolute decision,” which is a basic principle the criminal law. Although there is no evidence of two judges’ knowledge of ultimate aim and method, the Department has accepted the existence of specific intent by using hypothetical expressions like, “they were able to know” and “expected to know,” and accordingly rendered the verdict.
In contrast, when explaining the crime of armed terror organization in its justified decision, the Department no.16 formulated its theory pursuant to the aforementioned explanations.
“Moral element: A crime’s moral elements is direct intent and criminal intent. A member of organization has to participate to the organization knowingly and willingly; be aware of the organization’s characteristics and aims; and wanted to be its part. And its willingness to participate has to show continuity. A crime’s material elements include subject of crime, perpetrator, victim, act, consequence, and relation of causality. In order to incur a guilt, it is a condition that the perpetrator has to act by knowing all these elements. Ignorance and a mistaken thinking (fallacy in elements) remove the perpetrator’s intent. In parallel, it is obvious that the members who know goals and methods of the organization receive punishment in the light of their position in the organization…”
After explaining the private intent, knowledge and willingness, as such, the Department put aside its own arguments and relied on assumptions when it comes to subjective evaluation about the defendants.
“…in the light of their existence in the “confidential area” in terms of their place in the organization and their occupation, the defendants … who are expected to know the organization’s ultimate aim… It is decided that considering the defendants’ level of education, the knowledge and experience they have gained through their occupation, and their place within the organization, they could have known that this structure is an armed terror organization. Even though arm [as a method] is one of the elements of the terror organization, it is understood that there is no fallacy of element. Therefore, [the court] convicted the defendants of predicated crime.”
By using the phrase that “could have known,” the Department thought that it cleared up the doubt which has to be removed through clear evidences.
Consequently, this acceptance of the Court of Cessation has reflected to local courts similarly. Not feeling to investigate the moral element (private intent which is knowledge and willingness), the courts have made similar acceptances.
Although the defendant’s knowledge of the organization’s ultimate aim and willingness for it have to be proven for certain, the courts have given decisions based on aforesaid assumptions. They have even added new assumptions, like:
Who have used Bylock should know.
Who have deposit money to Bask Asia should know.
Who have worked in the Movement’s schools, TV channels, or newspaper should know.
Who have made donation to the Kimse Yok Mu Foundation should know.
Who have sent her/his child to the Movement’s school should know.
The courts have given conviction decisions based on similar assumptions one after another.
So much so that, it has turned into an assumption that all members of the Movement or even whoever have relation with the Movement should have known the ultimate aim, which means the coup, and its method.
The presuppositions that the Movement equals to an armed terror organization and a member of the Movement equals to a member of an armed terror organization have been imposed on the public opinion.
If there would be mathematical equation for this issue, it has to be done through an “intersection set.” The intersection set of the Movement and the armed terror organization includes only who had known the ultimate aim, which means the coup, and the methods. In other words, the members of the Movement who had known the ultimate aim and the method can be accepted as an armed terrorist organization. Sure, it has to be evaluated together with other elements, like the continuity in organizational activities, variety, intensity, existence, etc.
However, in none of the conviction decisions which have given decades of prison sentences to members of so-called FETO/PDY, the defendants’ private intent, aim (the coup) and the method, has not been proven. If there is anything proven in these cases, it is only defendants’“membership to the Movement.”
According to our law and universal law, being a member to a Movement is not a crime. The individuals who had known that the Movement is actually an armed terrorist organization have to be identified. None of the member of the Movement has been proven to know the coup previously, except who have participated to the July 15 coup attempt in person.
Let alone two judges’ membership to an armed terrorist organization, even their membership to the Movement could not be proven in the above-mentioned case no.2015/3.
Who tell lies?
The Penal Department no. 16’s assumption that “the judges had known the ultimate aim” leads us to a dilemma – either the Department or the other judges, who have confessed, lies. Why?
In its reasoning of decision no.2015/3, the Department says the judges and prosecutors should know the secret ultimate aim “because of their positions.”
Ex-members of the Supreme Board of Judges and Prosecutors and justiciars Ahmet Hamsici, Kerim Tosun, Mustafa Kemal Ozcelik and Birol Erdem, who had been in the Movement for 20 years and had taken charge in “confidential’ positions, have became confessors to get benefit of the provisions of effective repentance law. In their tens of pages of confessions, those ex-judges stated that they had not known that the Movement was going to plot a coup and added that they could have not even thought about such a thing.
In this case, the Department’s reasoning conflicts with the confessor judges’ defenses, as such;
If the department is right on that all judges and prosecutors had known the coup “because of their positions,” then the confessor lies, saying that they had not known. So, the confessors are liars. How can we trust their other statements?
If the confessor judges’ are straight about their unawareness of the ultimate aim, which is the coup, then the Department lied in its conviction against the two judges based on the assumption that all judges had known.
The Department leaves no other possibility. It is because that the Department says that all judges and prosecutors within the Movement had known, instead of some of the judges had known and some others had not.
It was like Nasreddin Hodja joke.
Hodja bought two kilograms of meat in the expectation of eating it at the dinner. Yet, his wife brought him a vegetable meal. In response to Hodja’s question that “where is the meat?,” the wife said “the cat eat it.” Taking his scale, Hodja weighed the cat. The cat was exactly two kilograms. Then, he asked to his wife that “If this is the cat, where is the meat? If this is the meat, where is our cat?”
Now I am asking. If the confessors lie by saying that they had not known although they had known, then where is the
If the confessors are true and they had not known the coup, but the Department no.16 still says “I assume that you had known,” then where is“just law system” and “fair, honest, trustworthy, neutral, and independent members of the Court of Cessation?”