‘Participating in the activities of an association cannot be cited as criminal evidence’

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Hakan Yılmazöz, a student at the time, was convicted of "being a member of a terrorist organization" by the local court. One of the criminal evidence against him was his participation in the event of an association.

Evaluating his application, the Constitutional Court has given a ruling of "right violation," noting that "taking part in the event of an association cannot be cited as criminal evidence for membership of a terrorist organization."

When he was a student at the Kocaeli University Faculty of Law, Hakan Yılmazöz attended an event organized by an association which was established and was operating in conformity with the relevant legislation. Yılmazöz was taken into custody on June 3, 2011.

Released by the court that he was referred to, Yılmazöz then faced a public action and was accused of "being a member of the Revolutionary People's Liberation Party/Front (DHKP/C)," "propagandizing for a terrorist organization" and "opposition to the Law on Meetings and Demonstrations."

The closed İstanbul 11th Heavy Penal Court handed down its judgement on March 15, 2013 and ruled that he should be sentenced to 7 years, 6 months in prison on charge of "being a member of the DHKP/C."

In its justified ruling, the local court indicated that Yılmazöz participated in the activities of Kocaeli Student Youth Association and, based on witness statements, it argued that the association in question was affiliated with the People's Front. The court also said that the People's Front was an organization affiliated with the DHKP/C.

The 16th Penal Chamber of the Court of Cassation upheld the verdict of the local court and, thus, the conviction of Yılmazöz in 2017.

'It was an interference in freedom of association'

With his conviction upheld, Hakan Yılmazöz made an individual application to the Constitutional Court and argued that his freedom of association was violated as his participation in an event as part of the activities of an association had been cited as criminal evidence in convicting him of "membership of a terrorist organization."

Examining the application of Yılmazöz, the Constitutional Court has indicated, "The fact that the participation in activities falling within the scope of people's Constitutional rights and freedoms is cited as criminal evidence for conviction could have a deterrent effect on rights and freedoms that fall within the scope of individual application."

The Constitutional Court has admitted that there was an interference in the freedom of association of Hakan Yılmazöz.

"So long as the conditions specified in the Article 13 of the Constitution are not met, it will constitute a violation of freedom of association," the Court has stressed. The article in question stipulates that citizens' basic rights and freedoms shall be restricted only when the reasons indicated in the related articles of the Constitution arise and they shall be restricted only by law.

'Court gave a ruling without evidence'

Against this legal background, the Constitutional Court has underlined that restrictions to be imposed on these rights and freedoms shall be in compliance with the requirements of a democratic societal order and shall not contradict the principle of proportionality.

Noting that a court has to put forward the links of a person with evidence to convict him or her of "membership of an organization," the top court has emphasized that this was not the case in the trial of Yılmazöz.

'People might shy away from using their rights'

The Constitutional Court has indicated that "when the social groups, their ideologies and attitudes probed by the legal authorities comprise the activities falling within the scope of Constitutional rights such as being members of an organization, attending meetings or expressing opinions, it will apparently have a serious pressure on fundamental rights, especially the freedoms of expression, association, thought and faith and the right to organize meetings and demonstrations."

The Court has also underlined that even though the justified ruling said that Yılmazöz engaged in activities of a student association in the name of People's Front, it did not explain what his activities were, when these activities took place, whether they were peaceful or not and whether they turned into terror propaganda or not.

Accordingly, the Constitutional Court has concluded that the freedom of association of Hakan Yılmazöz has been violated. (HA/SD)