INTERPRETATION OF THE COUNCIL OF STATE PROSECUTOR ON TERROR OFFENDERS IN BREACH OF THE PRESUMPTION OF INNOCENCE

Hundreds of people have been declared terror criminals in advance and their fundamental rights have been violated with the lists created within the scope of the Bylaw on the Reward to Be given to Those Who Help Uncover Terror Offences or Seize Evidence or Apprehend Perpetrators of Crimes, which entered into force after being published in the Official Gazette dated 05/11/2019 and numbered 30939. The unlawful aspects of the “List of Those Wanted for Terrorism” updated by the Ministry of Interior, such as that it violated the right to privacy, the right to a fair trial and, most importantly, the presumption of innocence; that it intimidated those who struggle for justice and aimed at preventing the crimes against humanity committed in Turkey from being announced to the entire world, were discussed in our previous article.[1]

In this context, a lawsuit was filed for the cancellation of some articles of the relevant bylaw due to the unlawfulness of the process of listing the name of lawyer Özgür Yılmaz, the absent defendant of the ÇHD case in which Selçuk Kozağaçlı, the President of the Contemporary Lawyers Association (ÇHD), is also a defendant. In the lawsuit, it was requested to annul the act of the inclusion of the plaintiff’s name on “the Orange List for Those Wanted for Terrorism”, and the Bylaw on the Reward to Be given to Those Who Help Uncover Terror Offences or Seize Evidence or Apprehend Perpetrators of Crimes, which is the basis of this act, first of all as whole due to lack of authority, otherwise, Articles 5, 6 and 8 of it and the Red, Blue Green, Orange and Grey Lists drawn up pursuant to these articles.

In the conclusion part of the opinion prepared by the Council of State Prosecutor within the scope of the lawsuit, “… In this case, there was no compliance with the law in the administrative action to draw up lists by ranking the importance of the crime or the offender by the Commission in order to catch the perpetrators of the wanted terrorism offences and to include the plaintiff in the Orange list prepared within this scope.

For the reasons explained, it is considered that the 2nd paragraph of Article 6 of the Regulation and the implementing act should be revoked, and the part of the case regarding Article 5, Article 6, paragraph 1, and Article 8 of the bylaw should be rejected.” Accordingly he requested the provision in the second paragraph of Article 6 to be revoked but rejected the request as regards some articles of the bylaw.

The opinion prepared by the Council of State prosecutor is incomplete and erroneous for the reasons explained below.

a. The Concept of “Terror Offender” in Article 6/1 of the Bylaw is Contrary to the Presumption of Innocence

 Although the Council of State Prosecutor has stated in his opinion that the request for the revocation of the part related to paragraph 1 of Article 6 of the Bylaw subject to the lawsuit should be rejected, this request and the explanations made regarding the concept of “terror offender” within the scope of this request are erroneous. Namely, in the first paragraph of Article 6 of the Bylaw titled “Announcement”, “(1) Information and photographs of terror offenders wanted with the promise of a reward, information deemed necessary regarding the crime to be clarified and the maximum reward amounts that can be given to those who help can be published in all kinds of communication tools and internet/digital media. The procedures for the publication and cancellation of the announcements shall be carried out in accordance with the procedure determined by the Reward Commission.” This provision is contrary to the presumption of innocence regulated in Article 38 of the Constitution and the Anti-Terror Law (TMK), particularly in terms of its content and scope.

As it is known, the presumption of innocence is a basic legal presumption stating that no one can be considered guilty unless it is certain that he/she has committed the offence. As an element of the right to a fair trial, the presumption of innocence is a principle enshrined in both the Constitution and the European Convention on Human Rights. In fact, the presumption of innocence is explicitly emphasised in the fourth paragraph of Article 38 of the Constitution titled “Principles concerning offences and punishments” which states that “No one shall be presumed guilty until his guilt has been established by a judgement.” and in the second paragraph of Article 6 of the ECHR which reads that “everyone accused of an offence shall be presumed innocent until his guilt has been legally established.”

The presumption of innocence enshrined in the Constiutution is also one of the sub-elements of the rule of law. This is because one of the requirements of the rule of law is to ensure the legal security of citizens and the necessary guarantees regarding offences and punishments.

This presumption is valid both at the investigation and prosecution stages, and administrative authorities must also act in accordance with this principle. In fact, in Allenet de Ribemont v. France,[2] the ECtHR held that the press conference organised by the Minister of Interior and a police officer involved in the investigation, after the implementation of the arrest measure against the applicant and before the opening of the criminal case, declaring the applicant guilty violated the presumption of innocence. Similarly, in Ürfi Çetinkaya v. Turkey,[3] the Court held that the presumption of innocence was violated by newspaper reports containing defamatory allegations against the applicant and portraying him as a drug trafficker. According to the case-law, the presumption of innocence obliges public officials not to treat individuals as guilty even before they have been found guilty by a court of law. This is also an obligation of the state towards its citizens.

Despite these clear requirements of the presumption of innocence, the first paragraph of Article 6 of the Bylaw lists and declares persons who do not have a final judgement of conviction as terror offenders. This listing and declaration process is carried out by an administrative board established by the Bylaw. The fact that a person is accused of terrorism or has an arrest warrant for this accusation does not directly make him/her a “terror offender”. Given that this is not the purpose of the Bylaw and that the ultimate purpose of Article 19 of the Anti-Terror Law, which constitutes the basis of the Bylaw, is not this, the provision of the Bylaw is contrary to the presumption of innocence.

On the other hand, this provision is also contrary to the Anti-Terror Law. The concept of “terror offender” is defined in Article 2 of the Anti-Terror Law, which reads as follows: “A terror offender is a person who is a member of an organisation formed to achieve the purposes set out in the first article and who commits a crime in pursuit of these purposes, either alone or together with others, or who is a member of the organisation even if he/she does not commit the intended crime. Those who commit crimes on behalf of a terrorist organisation, even if they are not members of the organisation, shall also be deemed to be terror offenders.“

When the provision in the article is evaluated together in the light of the presumption of innocence in paragraph 38/4 of the Constitution, for a person to be considered a terrorism offender, it must be established that he/she has “committed a crime” or “is a member of an organisation”. For a terror offender, the emphasis is placed on a certainty. This is only possible with a final judgement of conviction. The authority to decide on this is, of course, the impartial and independent courts. Therefore, it is not possible to recognise a person as a terror offender without a court decision.

Although the provision of the Anti-Terror Law to which the Bylaw refers directly explains the concept of “terror offender” in accordance with the presumption of innocence, Article 6 of the Bylaw, issued pursuant to Article 19 of this Law, titled “Announcement”, is clearly contrary to the presumption of innocence and the concept of “terror offender” in Article 2 of the Anti-Terror Law. This is because, according to the provision in the Bylaw and to the response of the Ministry of Interior to the lawsuit, it is possible to include persons who have not yet been sentenced to a final judgement in this list. It is seen that many people on the lists already prepared are included in the lists categorised by colour as “terror offenders” even though they do not yet have a final conviction. The Bylaw considers the search and arrest warrant issued against the person, not the finalised conviction, sufficient for the person to be included in these lists as a “terror offender”[4].

Therefore, the second paragraph of Article 6 of the Bylaw must be revoked due to the use of an authority not granted by the Law, and the first paragraph must be repealed as it is clearly contrary to Article 38/4 of the Constitution and Article 2 of the Anti-Terror Law.

b. Unlawfulness of the State Council Prosecutor’s Remarks on the Concept of “Terror Offender” in his Opinion

On the other hand, although this provision of the Bylaw is clearly contrary to the presumption of innocence and Article 2 of the Anti-Terror Law, the Council of State prosecutor stated in paragraph 11 of his opinion “… although it is stated that the information to be announced is the information belonging to the terror offender, although the offence will be finalised as a result of the trial, although the term perpetrator of the offence is not included, in view of the definition of terror offender in the Anti-Terror Law, it is concluded that the term terror offender is not an expression that cannot be used before the trial is held, but the provision brought in the second paragraph of the same article should be evaluated within the scope and purpose of the authority given by law…“.  

First, this statement is contrary to the presumption of innocence regulated in Article 38 of the Constitution and Article 2 of the Anti-Terror Law, as well as the established jurisprudence of Constitutional Court and the Court of Cassation on this issue. The title of terror offender is a position that can only be created after a trial is held and the convicting decision to be rendered at the end of the trial is finalised. Acceptance of the contrary, as explained above, contrary to the presumption of innocence, results in declaring a person guilty before his/her guilt is judicially established. At this point, the State Council prosecutor has made an interpretation contrary to the presumption of innocence by ignoring the existing case law of the Constitutional Court and the Court of Cassation regarding the concept of terror offender.

The Constitutional Court, in its decision on a complaint about the provision in the second paragraph of Article 2 of the Law No. 3713, which states that those who commit crimes on behalf of a terrorist organisation without being a member of that organisation shall be deemed to be terror offenders, has clearly defined what is meant by the concept of terror offender. The Court stated that “… According to the rule under review, a person being considered a terror offender depends, of course, on the determination by independent courts that he/she has committed a crime as a member of a terrorist organisation in line with the aim of the organisation or that he/she is a member of such an organisation. Such a characterisation is based on a conviction by the judicial organ. The person will be deemed a terror offender after his/her guilt in this field is determined…“, and it is emphasised that the person’s being deemed a terror offender depends on the determination by independent courts that he/she has committed a crime in line with the purpose of the organisation as a member of a terrorist organisation or that he/she is a member of such an organisation. [5] The Court repeated the same reasoning in the Hamit Yakut decision dated 10/6/2021.[6] The Court of Cassation also referred to this decision of the Constitutional Court in its judgement examining the concepts of “Terror” and “Terror Offender” and interpreted these concepts and their scope in line with the decision of the Supreme Court.[7]

As can be seen, as a requirement of the presumption of innocence, for a person to be accepted as a terror offender, there must first be a final conviction decision for an organisation crime. However, the prosecutor of the Council of State, with his opinion that “the term “terror offender” is not an expression that cannot be used before a trial is held”, has found the unlawful concept of “terror offender” set out in the first paragraph of Article 6 of the Bylaw to be legal despite the presumption of innocence and the jurisprudence of the high courts on this issue. This also means giving the administration the authority to determine “terror offenders” in the place of courts. In fact, many people who have been added to the list of those wanted for terrorism based on the unlawful article 6/1 of the Bylaw have been included in the “list of those wanted for terrorism” even though there is no finalised court decision against them and most of them have not even been prosecuted. Therefore, it is not only a criminal offence but also a clear violation of the presumption of innocence to share personal information and pictures of people who have not been subjected to a court decision and who are terror offenders. The provision of the Bylaw that leads to this result must, therefore, be revoked.

It is not possible to include these persons in the wanted list without a final conviction decision. As it has been emphasised before, the procedures and principles to be applied to suspects and defendants who cannot be reached or who are fugitives although their trial is ongoing are stipulated in Article 247 ff. of the Code of Criminal Procedure No. 5271. If it is assessed that the persons on the wanted list are fugitives, first, the procedural process in Article 247 ff. of the Criminal Procedure Code, which include provisions on “Trial of Fugitives”, must be followed.

However, considering that there are many people on the list for whom there is no final judgement of conviction, it is seen that the Ministry of Interior has declared hundreds of people as terror offenders with an administrative decision and procedure. The procedure is clearly unlawful in this respect as well. Moreover, the Bylaw does not authorise the Ministry to prepare lists and create categories. Accordingly, the opinion of the Council of State prosecutor is not appropriate, and the first paragraph of Article 6 of the Bylaw should also be repealed as it gives the administration the authority to determine “terror offenders”.

c. The phrase “their hierarchical position in the terrorist organisation and/or the gravity of the consequences of their actions” in Article 6/2 of the Bylaw is Contrary to the Presumption of Innocence

The rule in the second paragraph of Article 6 of the Bylaw which reads that “(2) Terrorism offenders wanted with the promise of a reward may be announced by the Reward Commission by grouping them according to their hierarchical position in the terrorist organisation and/or the gravity of the consequences of their actions, and by specifying the maximum amount of reward that can be given to those in each group” is also in breach of the presumption of innocence and the Anti-Terror Law. As stated in the explanations on the first paragraph, the authority to decide on the “hierarchical position of terrorism offenders within the organisation and/or the gravity of the consequences of their actions” are undoubtedly the courts and these matters can only be determined as a result of a trial. Pursuant to this paragraph, the Award Commission, which is an administrative authority, has been granted judicial power in violation of Article 9 of the Constitution.

Although the prosecutor at the Council of State expressed an opinion for the revocation of this paragraph, the points he put forward as justification are an explanation of why the first paragraph should also be cancelled. Because the prosecutor at the Council of State stated the following on the subject; “Considering once again that the purpose of the Bylaw is to regulate the amount, procedures and principles of the monetary reward to be given to those who help to uncover crimes falling within the scope of Law No. 3713, or to seize evidence, or to apprehend the perpetrators of crimes, or to those who report their whereabouts or identities, provided that they have not participated in their commission, the authority used by the commission in the second paragraph is an authority for the classification of terrorist crimes, evidence obtained or terrorist criminals. In other words, it is a power to make a rating of terror offenders according to their hierarchical position within the organisation and/or the gravity of the consequences of their actions. However, based on the purpose of the Bylaw, it is necessary to determine the amount of the reward to be given to those who help to uncover the crimes covered by the Law No. 3713 or to seize the evidence or to apprehend the perpetrators of the crimes, or to those who report their location or identity, and instead of determining the order of importance of the crime or the offender or the perpetrator with different lists, it is possible to determine an amount with an evaluation to be made according to the weight of the crime or the hierarchical status of the offender or the offence or the perpetrator or to the gravity of the act.

This Bylaw aims to regulate the procedures and principles of the reward, and it is seen that three criteria are taken as basis for the awarding of the reward: firstly, the discovery of the offence, secondly, the discovery of the evidence, and thirdly, the gravity of the offence in order to determine the amount of reward that can be given for those who help to catch the perpetrators of the offence, Although it is necessary to make an assessment to determine the amount of the reward according to the hierarchical position of the perpetrator within the terrorist organisation and the results of the act, it is not possible to use the authority granted to the Reward Commission to determine the amount of the reward to be given as an authority to make a list that results in the ranking of the importance of the wanted terror offenders. If it is necessary for the maintenance of the constitutional order to make such a list in terms of the wanted terror offender or perpetrator, it is beyond the authority granted to the Reward Commission to make such a list, which will determine the reward to be given to those who help uncover terrorist crimes, seize evidence, and capture the perpetrators of the crimes.

It was stated in the defence that the defendant administration decided to declare the plaintiff in the Orange colour category by the Award Commission according to their hierarchical/administrative position in the terrorist organisation and/or the severity of the consequences of their actions, and that the reports in the award request files prepared by the law enforcement unit were taken as basis, and the authority granted to the defendant administration covers the determination of the amount, procedures and principles of the award to be given to those who provide information to law enforcement units for the discovery of terrorist crimes or the seizure of evidence or the capture of perpetrators of crimes, or who report their location or identity. The provision includes how to decide on the reward, the conditions for granting the reward, the amount of the reward, the announcement of the maximum amount of the determined reward, the method of payment, the formation of the reward commission that will grant the reward, the confidentiality of the allowance and identities and information, and the issues regarding the capture of the perpetrator of the offence abroad.

Although, in the defence of the respondent administration; Although it is claimed that the procedure of informing the public by publishing lists of persons against whom there is a search / arrest warrant is not a situation specific to our country, the information and photographs of the international wanted persons in the INTERPOL “Wanted persons” section of the examples given, the information and photographs of the wanted persons in the “Europe’s Most Wanted Fugitives” list of “EUROPOL”, known as the European Police Organisation, which was established in order for the Police Organisations of the European Union member countries to cooperate, Although it is stated that the “Most Wanted” section of the US “FBI’s official website contains information and photographs of wanted persons and the amount of the reward, it is clear that all of the listings made are listings made by the Police Department or law enforcement agencies, and there is no mention of a listing made by the reward commission.

In this case, there was no compliance with the law in the administrative action for the Commission to create lists by ranking the importance of the offence or offender to catch the perpetrators of the wanted terrorism offences and to include the plaintiff in the orange list created within this scope.”

The Council of State prosecutor, while requesting the annulment of paragraph 2, has made a correct observation by stating that the Commission has no such authority. However, the basis for this determination is not that only the courts are the authority to decide on the “hierarchical position of terror offenders within the organisation and/or the gravity of the consequences of their actions”, but that Article 19 of the Anti-Terror Law, which is the basis of the Bylaw, does not authorise the Commission to regulate this issue in the Regulation. In fact, the Anti-Terror Law does not allow only the issue in paragraph 2, but also the declaration of persons as terror offenders without a finalised court decision in paragraph 1. For this reason, while it should and is expected that both paragraphs of Article 6 should be repealed, the opinion that only paragraph 2 should be revoked is erroneous and incomplete.

d. Lists are not prepared by the Award Commission

The issues included in the opinion of the Council of State prosecutor are evidence of how the lists are prepared and that the list of names created by law enforcement units, the publication of which is a criminal offence, is attempted to be legalised by this unlawful Bylaw provision. In its defence, the Ministry of Interior stated that it was decided by the Award Commission to declare the plaintiffs in the orange colour category according to their hierarchical/administrative position in the terrorist organisation and/or the severity of the consequences of their actions, and that the reports in the award request files prepared by the law enforcement units were taken as basis.

Even in this defence, it has been admitted that the Award Commission, which is entirely under the Ministry of Interior, has no authority, that the authority that makes terrorism accusations against persons against whom there is no final judicial decision, assigns positions within the hierarchical structure and determines the severity of the consequences of the actions of the persons is directly the Ministry, and therefore the authority that violates the Constitutional and legal rights of the persons concerned and commits a crime is also the Ministry. Furthermore, as stated by the State Council prosecutor, there is no precedent in the world for similar lists to be prepared by a commission like the Award Commission and, more importantly, to be announced on the internet.

[1] ON THE ILLEGALITY OF THE TERROR WANTED LIST PREPARED BY THE MINISTRY OF INTERIOR https://www.justicesquare.com/english/on-the-illegality-of-the-terror-wanted-list-prepared-by-the-ministry-of-interior/

[2] Application No: 15175/89, D.D.: 10/02/1995.

[3] Application No: 19866/04, D.D.: 23.03.2013.

[4] The summary of the reply of the respondent Ministry of Interior included in the Opinion of the Council of State Prosecutor is as follows “… Although, in the defence of the respondent administration; Although it is claimed that the procedure of informing the public by publishing lists of persons against whom there is a search / arrest warrant is not a situation specific to our country, the information and photographs of the international wanted persons in the INTERPOL “Wanted persons” section of the examples given, the information and photographs of the wanted persons in the “Europe’s Most Wanted Fugitives” list of “EUROPOL”, known as the European Police Organisation, which was established in order for the Police Organisations of the European Union member countries to cooperate, Although it is stated that the “Most Wanted” section of the US “FBI’s official website contains information and photographs of wanted persons and the amount of the reward, it is clear that all of the listings made are listings made by the Police Department or law enforcement agencies, and there is no mention of a listing made by the reward commission… “

[5] Constitutional Court, Docket No: 991/18, Decision No: 1992/20, 31/3/1992.

[6]   Application No: 2014/6548, P.46; “In 1992, the Constitutional Court decided on a complaint regarding the provision in the second paragraph of Article 2 of Law No. 3713 that those who are not members of a terrorist organisation but commit crimes on behalf of this organisation shall be deemed to be terror offenders and concluded that Article 2 was not contrary to Article 38 of the Constitution. The Constitutional Court examined the claim that the provision in question was difficult to understand and therefore could lead to inaccuracies and injustices in practice, and that it was therefore incompatible with the principle of legality of the offence set out in Article 38 of the Constitution; the Constitutional Court stated that since the provision to be revoked referred to committing an offence on behalf of an organisation, the offence must be committed with the knowledge and at the request of the organisation. The Constitutional Court also stated that the conviction of a person as a terror offender under the rule under review depends on the determination by independent courts that he/she has committed a crime in line with the aim of the organisation as a member of a terrorist organisation or that he/she is a member of such an organisation, and that the relevant rule is not contrary to the presumption of innocence or the principle of individuality of criminal responsibility (Constitutional Court, Docket No.: 1991/18, Decis. No.: 1992/20, Date of Decis.: 31/3/1992).”

[7] 16th Criminal Chamber of the Court of Cassation, Docket No: 2015/2084, Decis. No.: 2017/5026, Date of Decis.: 05/10/2017.