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Sefa Başak was sentenced to 13 years, 1 month and 15 days in prison after the court concluded that he used the words "cold water" as a code for gasoline in a phone call, which is used for making a molotov cocktail.
The Constitutional Court has decided that the court of first instance violated the right to assembly and demonstration and ruled for a retrial.
The top court noted that the court of first instance used vague expressions such as "even if it was not properly proven," "there were serious suspicions that he attended the..." and "even if it was not fully proven."
Court: There was serious suspicion
An indictment dated May 18, 2011 by Erzurum Chief Public Prosecutor's Office charged Başak with "membership of a terrorist organization, damage to property, resisting a public officer to prevent him/her from performing his/her duty and propagandizing for a terrorist organization." The university student who lived in the eastern Van province was remanded in custody on May 26.
One year later, he was acquitted of "damage to property" and "resisting a public officer to prevent him/her from performing his/her duty" while he was sentenced to 3 years, 1 month and 15 days in prison for "propagandizing for a terrorist organization" and to 10 years in prison for "membership of a terrorist organization."
According to the court's reasoned decision, although it was not "fully proven" that Başak was there during a press announcement in Doğubeyazıt district, there was "serious suspicion" that he participated in attacks with stones and molotov cocktails that took place afterward.
Başak was also one of the people who organized the attacks although it was "not fully proven."
While the court stated that it was not proven that the group of people, including Başak, carried out the attacks as there was no visual evidence, it stated it was "highly probable" that Başak was one of the people who carried out the attack.
Evidence: Gesturing at police officers
The recording of a phone call where Başak's name was mentioned was also among the evidence. Defendant A.A. was asking, "Is Sefa there?" to defendant E.Y. in the phone call.
The court also concluded that the two people meant "gasoline" when they said, "cold water" in the phone call:
"...although it cannot be proved fully, he took part in the violent terrorist acts in Doğubeyazıt as it can be understood from the wiretaps..."
Another evidence against Başak was a statement that said he "gestured at police officers" at a funeral he attended.
Başak not having a job and a regular income was also presented as evidence for his membership of the "terrorist organization."
Başak applied to the Constitutional Court after the Court of Cassation 9th Penal Chamber approved the sentence.
'Court failed to establish links between the applicant and the terrorist organization'
The Constitutional Court noted that the heavy penal court openly stated it was doubtful that Başak attended the meetings and used violence in these meetings, which were used as evidence.
"The court has failed to establish the links between the applicant's activities, which are in the scope of his fundamental rights, and the terrorist organization; therefore, it had an unjust deterrent effect on the right to assemble and demonstrate."
The top court stated the applicant's right to assemble and demonstrate was violated and ruled that the case file shall be sent to Erzurum 2nd Heavy Penal Court for a retrial. (AS/VK)
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