CRIMINAL LAW: THE OFFENSE OF MEMBERSHIP IN A TERRORIST ORGANIZATION AND TRIAL PROCEDURES

In judicial practice, particularly regarding offenses of membership in the FETÖ/PDY terrorist organization attributed to defendants who are students, it is an indisputable factual and material reality that "as of the alleged date of the offense" prior to the December 17/25, 2013 thresholds, an organization designated as FETÖ/PDY did not exist in the public consciousness.

The said structure initially emerged as a moral and educational movement and was perceived as such by a vast majority of every segment of society. The name attributed to the organization by the public was the "Hizmet Movement" (Hizmet Hareketi), and it was regarded as a benevolent movement even by the military and civil state bureaucracy. Concealing its ultimate treacherous objectives through deceitful methods, the organization successfully infiltrated the official institutions of the State.

In various concrete trials, operations are witnessed where statements of praise and eulogies uttered by the state bureaucracy and the general public toward the "Hizmet Movement" and its "leader" exactly match the timeline of the offenses attributed to the defendants. It is an unassailable reality that the FETÖ/PDY terrorist organization successfully masked its true internal dimension and ultimate goal, thereby "deceiving" the civil and military bureaucracy of the State along with wide social classes. This phenomenon constitutes a notorious and universally known fact (meşhur ve maruf vakıa). Under procedural law, notorious facts require no further evidentiary proof.

Operating in numerous parts of the country for educational purposes, and utilizing environments and times where young students away from their families were in need of material or psychological support, the organization sought to recruit young individuals studying at various educational institutions, regardless of whether they held an inherent ideological alignment. In many instances, intelligence and research reports compiled by the organization containing the explicit notation "He/She is a difficult person to recruit" (Kazanılması zor kişidir) entered the case files. Despite the mandatory provision of Article 160 of the Criminal Procedure Code (CMK), such favorable evidence, information, and documents are systematically ignored by the Prosecution, excluded from indictments as exculpatory evidence, and disregarded during trials. Consequently, innocent young individuals are penalized for "Membership in a Terrorist Organization," triggering severe systemic grievances.

Furthermore, no criminal fault or accusation can legitimately be directed at young students for being subjected to recruitment methods within official state institutions by an organization that, at the time, was fully accepted, recognized, and supported by the State bureaucracy itself. Pursuant to the fundamental Principle of Non-Retroactivity of Criminal Statutes (Kanunların Geriye Yürümezliği İlkesi), it is legally impossible to direct an accusation of "Terrorist Organization Membership" at young individuals for a time period during which the structure merely bore the character of the "Hizmet Movement" and had not yet been legally or socially criminalized as a "Terrorist Organization."

Nevertheless, in numerous practical and material trials, individuals are penalized despite the absolute non-materialization of the statutory conditions of punishability. Based on the non-retroactivity of laws, an Acquittal (Beraat Kararı) must be rendered for charges that lack substantive statutory elements as of the date of the offense. Penalizing individuals through non-statutory justifications strips innocent youth—who ought to be integrated into social life—of their constitutional procedural safeguards, marginalizes them from society, and causes profound structural violations.

One of the most vital pillars of our contemporary criminal code is Article 7, paragraph 1 of the Turkish Penal Code (TCK) No. 5237, titled "Implementation with Regard to Time":

“No one shall be punished or subjected to security measures for an act which did not constitute a criminal offense under the law in force at the time it was committed. No one shall be penalized or subjected to security measures for an act which is no longer classified as a crime under a statute enacted subsequent to its commission. If such a sentence or security measure has already been imposed, its execution and legal consequences shall automatically dissolve.”

Despite this mandatory statutory rule governing the implementation of penalties with regard to time and the non-retroactivity of crimes, penalizing 17-year-old high school students for actions matching the timeline of "September 2012 – December 17/25, 2013"—a period during which the structure held no legally recognized character of a terrorist organization—based on allegations such as "attending a breakfast gathering," "participating in a religious conversation (sohbet)," or "being the recipient of a single missed call within the context of consecutive calls (ardışık arama)" directly contradicts the core purpose of criminal procedure, the rule of temporal implementation, and the non-retroactivity of crimes and punishments. The settled precedents of the High Courts cited below strictly confirm this determination: (Jurisprudence of the Court of Cassation Criminal General Board dated 20/12/2011, Merits No: 2011/11-239, Decision No: 2011/281; Judgement of the Constitutional Court dated 19.04.2018, Application No: 2015/15723; the Charter of Fundamental Rights of the European Union; and the European Criminal Law Practices of the ECtHR).

Core Principles to be Executed in Criminal Trials: Legality, Equality, and Procedural Safeguards

During the investigation stage, it is an indispensable requirement of criminal procedure that the investigative authorities operate in full compliance with the statutory obligations imposed upon them by law. They must strictly observe the principles of equity, the temporal and territorial execution of crimes and punishments, the Presumption of Innocence (Masumiyet Karinesi) for suspects against whom no incriminating evidence exists, and the Principle of Legality in Crimes and Punishments (Suçta ve Cezada Kanunilik İlkesi). Ensuring that defendants standing in identical objective situations are subjected to identical procedural transactions and executing the trial in absolute alignment with the Principle of Equality Before the Law (Yasa Önünde Eşitlik İlkesi) constitute the bedrock of justice.

Indeed, interpreting Article 10 of the Constitution, the Constitutional Court explicitly stated that the core objective of the principle of equality before the law is "to ensure that persons who are in identical situations are subjected to identical transactions by statutes, and to prevent any discrimination or privilege from being granted before the law."

In a concrete case where we intervened as Defense Counsel (Müdafi), a conviction was rendered against a defendant in total violation of the mandatory provisions of law and procedure, the material evidence within the file, the natural flow of events, and even the explicit admissions and determinations written by the Prosecution in its own "Indictment." While several defendants standing in an identical situation were granted acquittals, and others were not even subjected to an investigation, a conviction for "Membership in an Organization" was rendered via a majority vote (oy çokluğu) despite the complete absence of the statutory conditions of punishability. This lopsided adjudication directly violates the Principle of Legal Certainty (Hukuk Güvenliği İlkesi) to which every citizen of this country is inherently entitled.

In the said concrete dispute, the official "Intelligence and Research Report" contained within the file explicitly unearthed the following verifications:

• The suspect held no bank account at Bank Asya, which was the primary financial repository of the organization;

• The suspect never utilized the encrypted communication application known as ByLock;

• The suspect held no membership in any association or union dissolved under the Emergency Decrees (KHK) such as Decree No. 667;

• Social media forensic screenings revealed no posts or shares by the suspect in favor of the FETÖ/PDY terrorist organization;

• The suspect never maintained employment at any commercial company or entity affiliated with FETÖ;

• The official file text explicitly contained the clear intelligence determination: "He/She is a difficult person to recruit."

Resorting to a conviction even in the presence of such overwhelming exculpatory evidence deeply wounds the collective legal conscience. Failing to permit defendants to benefit from the Presumption of Innocence and stripping them of the Principle of Legal Certainty—which must be protected via constitutional and statutory safeguards—triggers a grave violation of human rights.

The Statutory Burden of the Public Prosecutor under Articles 160 and 170 of the CMK

Pursuant to Article 160, paragraph 2 of the Criminal Procedure Code (CMK) governing the duties of the Public Prosecutor upon learning of a crime, the Prosecutor is explicitly mandated:

“For the purpose of investigating the material truth and securing a fair trial, the Public Prosecutor is obliged, through the judicial police forces under their command, to collect and preserve both exculpatory (lehine) and incriminatory (aleyhine) evidence, and to protect the statutory rights of the suspect.”

The sole objective of this rule is to establish a fair trial and provide procedural safeguards for suspects regarding the absolute prohibition of unlawful evidence. Despite this clear duty and responsibility to gather and evaluate exculpatory evidence, the documents and facts favoring the suspect were completely ignored in the indictment. Abstract and highly speculative data were interpreted against the suspect to build a justification for conviction. This practice openly violates Article 170, paragraph 4 of the CMK, which dictates: "The facts constituting the imputed offense shall be explained in the indictment by linking them to existing evidence; information that holds no relevance to the imputed offense and its evidence shall not be included," as well as paragraph 5, which mandates: "In the concluding section of the indictment, not only the matters against the suspect but also the matters in favor of the suspect shall be asserted." Excluding exculpatory evidence from judicial evaluation violates the mandatory procedural rules of the CMK and threatens the foundations of Legal Certainty in investigations.

One of the most vital and universal maxims of criminal procedure—which serves to ensure justice by discovering the material truth, punishing the perpetrator whose guilt is verified beyond doubt, and reconstructing public order—is the rule "In Dubio Pro Reo" (Şüpheden Sanık Yararlanır / The Defendant Benefits from Doubt), which stands as an extension of the Presumption of Innocence. The core essence of this principle dictates that any doubt regarding an issue that must be considered for rendering a conviction in a criminal trial must mandatorily be evaluated in favor of the defendant. This wide-reaching rule applies equally to whether the offense was committed at all and the specific manner of its execution.

The primary prerequisite for sentencing a defendant is proving the crime with a certainty that leaves no room for any reasonable doubt. Events and allegations whose execution remains doubtful or completely unilluminated cannot be interpreted against the defendant to establish a conviction. A criminal conviction must rest upon clear, manifest, and absolute proof—which leaves no room for any alternative scenario or doubt—rather than an opinion reached by selecting a portion of the evidence while ignoring the rest. Rendering a conviction based on probabilities, no matter how high, means entering a judgment without reaching the truth, which directly defeats the core objective of criminal procedure. (As settled in the landmark precedent of the 1st Criminal Chamber of the Court of Cassation, Merits No: 2014/3253, Decision No: 2014/5690). This high-court precedent stands as a fundamental rule under universal norms of law.

Therefore, under the principle of in dubio pro reo, where doubt exists in a criminal trial, a conviction cannot legally be sustained. Defendants against whom only abstract suspicions of criminal intent exist, and whose files lack concrete evidence sufficient for a conviction, must be granted an Acquittal.

In a constitutional state, the main goal of criminal procedure is not to secure a punishment at all costs, but to investigate and unearth whether a person under suspicion genuinely executed the alleged act, under the light of universal principles of law. The material truth can solely be discovered through evidence obtained via legally compliant methods. Conducting investigations and trials based on manufactured allegations and structural fictions targeted at individuals viewed as "potential enemies" threatens the fabric of Legal Certainty and triggers unlawful judgments. Guaranteeing individual liberty under the light of pure law is a prerequisite for societal legal security. Unearthing the material truth in a manner entirely free from all doubt will satisfy the collective conscience and reinforce public trust in the judiciary. (As established in legal doctrine by Public Prosecutor Assoc. Prof. Dr. Cengiz Apaydın).

The Misuse of Coerced Testimony and the Violation of the Principle of Individuality of Penalties

When the universal norms governing trials are evaluated, it is observed that the prosecution routinely relies on the testimonies of certain co-defendants who seek to benefit from Effective Repentance (Etkin Pişmanlık). In most instances, the statements of these witnesses are completely insufficient and unconvincing to sustain a conviction against the suspects, frequently consisting of vague assertions such as: "I do not remember the name [•]. I hold no connection to the FETÖ/PDY terrorist organization, and I do not know whether this individual was involved or not." Despite such empty statements, to construct an artificial perception of guilt against the suspects, massive volumes of conviction files belonging to those effectively repentant witnesses from entirely separate Heavy Penal Courts are systematically dumped into the suspects' case files as "incriminating evidence." This practice is deliberately deployed to block the evaluation of exculpatory evidence. It represents a pre-adjudicated path to conviction via evidence distortion, ignoring the authentic exculpatory documents matching the specific defendant.

Penalizing suspects who hold no connection or alignment with the FETÖ/PDY terrorist organization, and resorting to judicial punishment in the complete absence of concrete, clear, and convincing evidence free from reasonable doubt, represents a flagrant violation of the Principle of Individuality of Crimes and Punishments (Cezaların Şahsiliği İlkesi). In these scenarios, the evidentiary tools and judicial records created against individuals convicted in entirely separate actions are applied analogously (kıyas yoluyla) to penalize innocent defendants, permanently blocking them from benefiting from the Principle of Legal Certainty.

In the concrete trial under analysis, the Prosecution explicitly wrote the following statements in the Indictment:

“The father of the suspect, [•], is actively being prosecuted before the [•] Heavy Penal Court under File No: 2022/[•] for the offense of Membership in the FETÖ/PDY Armed Terrorist Organization...”

Through such assertions, the suspect was targeted with criminal accusations based entirely on the legal status of a family relative. The suspect was charged using abstract, baseless, and vague allegations rooted in mere assumptions and probabilities. The prosecution argued that because a phone line registered under the father's name was utilized by the suspect, the suspect "likely" held membership in the organization through family association. Resorting to such forced logic to construct an indictment and utilizing it as a ground for conviction violates mandatory constitutional and statutory safeguards, constituting a severe breach of the Principle of the Individuality of Penalties.

Furthermore, the suspect's father was subsequently granted a definitive Acquittal in his respective trial, and the judgment became final after surviving appellate review. Although every certified copy of this acquittal and its supporting evidence was formally submitted to the court as defense evidence, the Trial Court completely ignored these documents. Instead, the court chose to rely exclusively on evidence gathered through non-compliant, coercive investigative methods.

Article 38, paragraph 7 of the Constitution explicitly dictates: “Criminal liability is personal.” This principle is further reinforced and cemented under Article 20, paragraph 1 of the TCK, which states: “Criminal liability is personal. No one shall be held responsible for the act of another.” Through these explicit provisions, both our Constitution and our Penal Code have fully integrated advanced, universal norms of law.

In our model case, the suspect was penalized by being blamed through his father, despite his father holding a finalized acquittal. This practice represents a clear violation of universal norms and the mandatory provisions of procedure. A conviction rendered via a majority vote under these circumstances means the judicial branch itself has violated the constitutional and statutory guarantees securing the Individuality of Penalties.

The Court of Cassation, in an identical precedent, ruled:

“Accepting the joint bank account activities at Bank Asya belonging to the mother and father of a defendant as incriminating evidence or as an organizational activity against the defendant violates the Principle of Individuality of Crimes and Punishments. Failing to observe this rule is unlawful, and the judgment must be REVERSED.”

Under this clear high-court precedent, ensuring that defendants benefit from the individuality of penalties must be the baseline rule in all ongoing trials.

Unlawful Evidence and the Absolute Prohibition of Analogy under the Legality Framework

In a criminal justice system built upon the foundations of a Constitutional State, reaching a verdict must rely exclusively on evidence obtained through legally compliant methods. Furthermore, the power and duty to gather evidence lawfully, evaluate it properly, and adopt it as the foundation of a judgment belong uniquely to the Independent Courts rendering verdicts on behalf of the Turkish Nation. This issue directly concerns public order.

Under the established literature of the Turkish Judicial System, rendering a conviction against a defendant based on abstract accusations and unverified slurs that amount to mere slander (suç atma) is entirely unlawful. Such data falls squarely within the scope of "Statutorily Non-Compliant Evidence" (Kanuna Aykırı Delil - Art. 38/6 Constitution) and "Unlawfully Obtained Evidence" (Hukuka Aykırı Delil - Art. 217/2 CMK). Convictions built upon such material erode the protections guaranteed by constitutional and statutory safeguards, violating the rules governing evidence procurement and evaluation, and triggering severe grievances through forbidden interrogation methods.

When Article 38, paragraph 6 of the Constitution, along with Articles 206/2, 217/2, and 289/1-i of the CMK are evaluated as a cohesive whole, it is an absolute rule of law that non-compliant and forbidden evidence cannot be reviewed during a trial, read aloud at hearings, debated by the parties, or adopted as the foundation of a judicial verdict. Under Turkish law, the exclusion of unlawfully obtained evidence is absolute and admits no exceptions. For an element of proof to be evaluated by a court, it is a strict statutory requirement that it be legally compliant and obtained through lawful channels.

The structure of unlawful evidence in our legal system carries the following distinct characters:

• Inadmissibility pursuant to Article 38, paragraph 6 of the Constitution;

• Mandatory Rejection pursuant to Article 206, paragraph 2 of the CMK;

• Inability to Serve as Proof pursuant to Article 217, paragraph 2 of the CMK;

• Absolute Procedural Illegality pursuant to Article 289, paragraph 1, sub-clause (i) of the CMK.

The Court of Cassation Criminal General Board, defining the scope of unlawfulness and the absolute prohibition on evaluating illegal evidence, explicitly noted that “courts must monitor whether a violation of positive law provisions or universal principles concerning fundamental human rights and liberties has occurred; if such a breach is present, the existence of an absolute legal unlawfulness must be accepted.”

The Principle of Legality in Crimes and Punishments (Art. 2/3 TCK)

Pursuant to the stable jurisprudence of the 16th Civil Chamber of the Court of Cassation (March 8, 2020, Merits No: 2019/521, Decision No: 2019/4769), the Principle of Legality in Crimes and Punishments is defined as follows:

“No one shall be penalized for an act that did not constitute a crime under the statute in force at the time of its commission; no one shall be given a penalty heavier than the penalty prescribed by law for that specific offense at the time of its commission.”

This principle stands as the most fundamental tenet of modern criminal law, codified under Article 38 of our Constitution, Article 7 of the European Convention on Human Rights (ECHR), and Articles 2/1 and 7 of the TCK. The core objective of this principle is to guarantee that individuals can clearly know in advance which actions are prohibited and penalized by law. Only under this certainty can individuals direct their behavioral patterns, and only in this scenario can an actor be held at fault and responsible for their actions.

As noted in prominent legal doctrine:

“The principle of legality establishes a vital balance between the rights of the individual and the interests of society, which forms the foundation of modern criminal law.” (Dönmezer/Erman, Theoretical and Practical Criminal Law, 14th Ed., Vol. 1, p. 53).

“The rule of nullum crimen sine lege acts as the absolute guarantee of an individual's public rights against the powers of the State and the judge.” (Erem/Danışman/Artuk, Criminal Law General Provisions, 1997 Ed., p. 99).

“A constitutional state does not merely protect individuals through criminal law; it must also protect them against the overreaches of criminal law itself. Thus, the statutory creation of crimes and punishments forms the absolute boundary of the State's penal power.” (Öztürk/Erdem, Applied Criminal Law and Security Measures Law, 10th Ed., p. 37).

Although the principle of legality may appear as a broad, abstract doctrine at first glance, it represents one of the most active topics in contemporary criminal practice. All judicial practitioners execute interpretations daily. When applying an abstract, general statute to a concrete case, the core universal rule that must guide the practitioner is the principle of legality. If the practitioner observes that the act committed by a defendant is not prohibited under the Turkish Penal Code or special penal statutes, or if the act is prohibited but no judicial penal sanction is attached to it, they must issue a Decision of Non-Prosecution (Kovuşturmaya Yer Olmadığına Dair Karar) during the investigation phase, or an Acquittal during the trial phase. (Yaşar/Gökçen/Artuç, TCK Commentary, 2010 Ed., Vol. 1, p. 23).

The Absolute Prohibition of Analogy and the Limits of Judicial Interpretation

Based on these established doctrinal principles, practitioners must monitor the principle of legality with the utmost sensitivity. Failing to do so opens the path to administrative and judicial arbitrariness. As a requirement of the principle of certainty, when a legal rule clearly defines the constitutive elements of a crime and its corresponding penalty type and amount, the rule is clear upon a primary reading, and no further interpretation is required.

However, in circumstances where the legal text is not sufficiently clear, judicial interpretation methods are invoked. Interpretation is the intellectual activity executed to discover the genuine meaning of a statutory provision and the true intent of the legislature. (Özgenç, Turkish Penal Code General Provisions, 3rd Ed., p. 78).

If the literal wording (lafız) of a statute remains narrower than the meaning the legislature intended to convey, extensive interpretation (genişletici yorum) can be utilized to unearth the true legislative intent. Favorable sources to guide this intellectual process include:

• The title and official justification (gerekçe) of the article;

• The specific chapter and section where the article is placed, to understand the legal value protected by the crime;

• The legislative preparatory works, commission records, and general assembly debates displaying the societal need that triggered the statute;

• Historical high-court precedents and scientific views in legal doctrine.

The Mechanism of Analogy (Kıyas)

A direct and mandatory consequence of the principle of legality is the Absolute Prohibition of Analogy (Kiyas Yasağı). Analogy occurs when an act that is not explicitly defined as a crime under any statute is dragged into the scope of a criminal definition because it shares certain behavioral similarities with a prohibited act.

Analogy effectively means penalizing a behavior that lacks a statutory basis, which is completely incompatible with the principle of legality. The mandatory addressees of the prohibition of analogy are the judges and practitioners obligated to apply the rules of law. (Öztürk/Erdem, Criminal Law, 5th Ed., p. 7).

The prohibition of analogy applies strictly to all constitutive elements of a crime. Under Article 2, paragraph 3 of the TCK:

“Analogy cannot be deployed in the implementation of statutory provisions containing crimes and punishments. Provisions containing crimes and punishments cannot be interpreted extensively in a manner that leads to analogy.”

When this mandatory statute is combined with procedural rules, it becomes evident that when the Prosecution imports the conviction files of entirely separate defendants—who are prosecuted for unrelated factual incidents—into a suspect's file to utilize them as the justification for a new conviction, it violates the mandatory prohibition of analogy.

The Court of Cassation Criminal General Board, in its judgment dated 09.10.2012 (Merits No: 2012/1-405, Decision No: 2012/1802), explicitly reinforced the boundaries of the indictment:

*“...Article 170 of the Law No. 5271, which entered into force on June 1, 2005, comprehensively regulates the mandatory elements of an indictment. Paragraph 4 of the said article mandates that the events constituting the imputed offense must be fully explained. As manifested by these provisions, the boundaries of a public criminal action must be explicitly delineated regarding the factual act. Exceeding the boundaries of the factual act in a public action violates the fundamental principle 'there can be no trial without an indictment' (davasız yargılama olmaz) and constitutes a flagrant breach of Article 225 of Law No. 5271.

Consequently, the subject-matter of a judgment is not the statutory reference article displayed in the indictment, but the concrete factual act itself. Litigating an unindicted act and rendering a verdict over an action that was never formally initiated is entirely unlawful.

Conversely, when evaluating the crime whose elements are outlined in the indictment, the court is not bound by the statutory classification or characterization asserted by the prosecution. The iddia makamı (Prosecution), obligated to draft the indictment based on the evidence gathered during the investigation, delineates the absolute boundaries of the trial phase regarding the act and the defendant pursuant to Article 225/1 of the CMK. Within this framework, it is entirely sufficient for the indictment to explain the acts constituting the elements of the imputed offense in a manner that leaves no room for any hesitation. This ensures that the defendant can clearly comprehend the exact nature of the charges against them, structure their defense, and submit their exculpatory evidence without doubt.”*

Following these comprehensive explanations, a systematic legal evaluation must be executed regarding terrorist organizations, crimes against the constitutional order, a comparison of the old and new penal codes, the doctrine of attempt (teşebbüs), the chain of causation, the rules of complicity (iştirak), and the defenses asserting factors that eliminate or mitigate criminal capacity.

The Substantive and Mental Elements of the Offense of Membership in a Terrorist Organization

A. Substantive Elements (The Status of Membership):

An organizational member is an individual who internalizes the core objectives of the organization, enters its hierarchical structure, and voluntarily surrenders their own independent will to the will of the organization, holding themselves ready to execute any task or mission assigned to them.

Organizational membership implies joining the structure, binding oneself to its pipeline, and entering the command of the prevailing hierarchical power. An organizational member must establish an organic bond (organik bağ) with the organization and actively participate in its operations.

• Characteristics of the Organic Bond: The organic bond must be a living, transitioning, and active connection that keeps the perpetrator continuously open to receiving orders and directives, and maps out their precise position within the hierarchy. This bond stands as the most critical element of membership.

While orders and directives from organizational executives guide those who merely aid an organization (örgüte yardım eden) or commit a crime on its behalf (örgüt adına suç işleyen), the definitive factor that separates true membership is that a member is ready to perform any order issued within the hierarchy completely, without question, and out of a sense of absolute surrender.

Merely harboring sympathy for an organization, internalizing its core values, objectives, or ideology, reading or possessing its publications, or demonstrating respect toward its leader are entirely insufficient to satisfy the statutory criteria of membership. (Evik, Forming an Organization to Commit Crimes, p. 383).

Although penalizing a member under this clause does not require them to commit a separate substantive offense within the scope of the organization's purposes, they must provide a concrete material or moral contribution that holds a clear causal connection to the existence or reinforcement of the organization. Because membership constitutes a continuous offense (mütemadi suç), a verified continuity, variety, and density of behavioral patterns across a timeline are strictly required.

As ruled by the Court of Cassation Criminal General Board (10.06.2008, Merits No: 2007/9-270, Decision No: 164), it is legally impossible to acquire the status of a member through a unilateral declaration of intent. The organizational management must manifest an explicit or tacit acceptance (açık veya zımni kabul) of the individual.

B. The Mental Element (Manevi Unsur):

The mental element of this crime requires direct criminal intent (doğrudan kast) combined with a specific criminal purpose/motive (suç işleme amacı/saiki). An individual entering an organization must explicitly know that the structure they are joining is an organization that commits crimes or aims to commit crimes.

The member must join the structure knowingly and willingly, comprehend its illegal nature and ultimate objectives, and intend to become a component of it, maintaining this intent continuously. An individual joining a structure must act with the explicit intent and volition of becoming a member of an organization established to execute actions categorized as crimes by statutes. The motive of "committing crimes" is an absolute statutory requirement for this offense. (Toroslu, Special Part, pp. 263-266; Alacakaptan, Organizations Established to Commit Crimes, p. 28; Özgenç, General Provisions, p. 280).

Summary of Criteria Established by the 16th Criminal Chamber of the Court of Cassation:

For the status of membership to be legally verified, the following five criteria must be satisfied concurrently:

1. Internalizing and adopting the goals of the organization,

2. Being integrated into the hierarchical structure of the organization,

3. Holding oneself ready to execute any task or mission assigned by the organization,

4. Surrendering one's independent personal will to the collective will of the organization,

5. Establishing an organic bond and actively participating in organizational operations.

The organic bond is an active, dynamic connection that locks the perpetrator into a state of continuous responsiveness to orders. The defining characteristic of membership is the unconditional execution of directives issued within the hierarchy, driven by a feeling of absolute surrender.

Under these explicit constitutional and statutory safeguards, and in light of the stable jurisprudence of the Criminal General Board and the 16th Criminal Chamber of the Court of Cassation, all exculpatory and incriminatory evidence matching a defendant must be weighed with meticulous care. In files where the evidence amounts to mere slander (suç atma), or where the data falls within the absolute exclusion of unlawful evidence, if clear, legally compliant, and convincing proof sufficient to sustain a conviction beyond reasonable doubt is absent, the court must render an Acquittal.

Discovering the material truth is the baseline objective of a trial. Our Constitution and our procedural codes mandate that a judge must restrict themselves exclusively to legally compliant evidence when seeking the truth. Under Turkish law, the prohibition against evaluating unlawful evidence is absolute and admits no exceptions. Information obtained via unlawful methods cannot be utilized as evidence, read aloud at hearings, debated during trials, or adopted as the foundation of a verdict. For a factual finding to transition into an admissible piece of evidence, its legally compliant nature is a mandatory statutory requirement. A conviction rendered against a defendant must never violate mandatory constitutional rules, statutory provisions, High Court precedents, or universal norms of law.

In legal doctrine (Dönmezer-Erman, Theoretical and Practical Criminal Law), the substantive element of the offense of membership in an armed terrorist organization requires the verified existence of a physical, objective act matching the statutory definition, demanding an active execution. Furthermore, a direct causal link must connect the act to the organizational outcome. Contemporary criminal law views the causal link as an indispensable element verifying the materialization of a result.

In every concrete action, the evidence matching the material facts must be analyzed according to its unique context, and the charge of membership must be measured under the light of objective evidence. If a file lacks clear and convincing evidence free from reasonable doubt, an acquittal is a legal necessity. Accepting slanderous statements or unverified accusations as admissible proof to sustain a conviction flagrantly violates procedural law and strips the citizen of their legal safeguards. The conditions of punishability must be objective, and material facts must rest upon solid evidence. Where the substantive elements of a crime fail to manifest, an acquittal must be issued in favor of the defendant.

The same authors define the mental element of the crime as general criminal intent (genel kast), meaning that the suspect must be fully aware of the nature of their movement and explicitly intend the prohibited outcome. In every concrete case, whether an organization designated as the FETÖ/PDY terrorist organization actually existed in the public consciousness at the time of the imputed acts must be investigated based on objective evidence.

Prior to the December 17/25, 2013 thresholds, the overarching perception across society and the state bureaucracy was that the structure merely constituted the "Hizmet Movement." The court must analyze the suspect's objective material and mental connection to the organization under those precise temporal and territorial conditions. If the mental element of membership fails to manifest due to a lack of awareness of the structure's criminal nature, the Principle of Legality must be executed to its fullest extent.

Aside from abstract, speculatory claims, if a file lacks concrete and convincing proof free from doubt, an acquittal must be issued. Whether the mental element materialized must be debated based on the specific facts of each unique dispute. If the substantive and mental elements of the imputed crime fail to manifest, the statutory classification of the offense and the conditions of punishability dissolve, necessitating an Acquittal.

Conversely, rendering a conviction in violation of codes, procedures, and mandatory norms strips the citizen of their constitutional safeguards, wounds the collective conscience, and erodes public trust in the administration of justice. In such scenarios, the citizen's constitutional Right to a Fair Trial (Adil Yargılanma Hakkı) is directly violated.

MODEL DISPUTE ANALYSIS: THE LANDMARK DISSENTING OPINION (MUHALEFET ŞERHİ)

In a concrete trial where we intervened as Defense Counsel, the Senior Member Judge of the Heavy Penal Court entered a powerful Dissenting Opinion (Muhalefet Şerhi) that perfectly aligns with our technical legal assessments and structural characterizations. The verbatim text of the dissenting opinion is presented below:

DISSENTING OPINION

“Although a single consecutive call (ardışık arama) log from the year 2014 was detected between the defendant and individuals who, like him, were police officers, this single data point is entirely insufficient to prove that the defendant maintained an active, ongoing connection with the organization. Indeed, this single log completely fails to satisfy the rigorous verification criteria established by the stable jurisprudence of the 3rd Criminal Chamber of the Court of Cassation regarding the evidentiary sufficiency of the consecutive calling method.

When we evaluate the establishment, ultimate objectives, hierarchical layout, and operational methods of the FETÖ/PDY armed terrorist organization—whose final goal was to overthrow the Constitutional Order of the State through force and violence—it is an undeniable reality that the structure initially emerged as a moral and educational movement and was perceived as such by a wide majority of every segment of society. The organization systematically utilized every method to achieve its goals, hiding behind a mask of civil legitimacy rooted in religion in the public sphere and law in the administrative sphere. It demonstrated extreme caution to avoid open criminalization until it reached a critical mass of power.

When this factual background is taken into account, there is an absolute absence of any evidence in the file proving that the defendant was aware of the organization's ultimate treacherous goals. Furthermore, as of the date of the alleged offenses, the prosecution failed to detect the utilization of any organizational code name or any encrypted communication network (such as ByLock) by the defendant. No records or logs matching the defendant were found in Bank Asya accounts, or in associations and unions affiliated with the organization.

Following the unmasking of the true criminal face of the organization, the prosecution failed to demonstrate any concrete act or behavior indicating that the defendant integrated himself into the organizational hierarchy. Conversely, the defendant's consistent defense statements—asserting that he merely attended certain religious conversation meetings (sohbet) prior to the December 17/25 process and completely severed all connections immediately after learning of its true nature—are fully verified and corroborated by the oral testimony of witness A[•] Ç[•] and the forensic data extracted from the SD-card records delivered by the secret witness.

Consequently, a profound judicial doubt emerges as to whether the defendant's behavioral patterns possessed the continuity, variety, and density necessary to establish an organic bond with the organization. It is therefore impossible to state that the defendant's status as an organizational member has been verified with absolute certainty. Entering a conviction under these circumstances constitutes a direct violation of the rule 'In Dubio Pro Reo' (The Defendant Benefits from Doubt), which stands as one of the most critical principles of criminal procedure.

The baseline requirement for penalizing a citizen is proving the crime with a certainty that excludes all reasonable doubt. Speculative events and unilluminated allegations cannot be interpreted against a defendant to construct a conviction. A criminal conviction must rest upon clear, manifest, and absolute proof rather than a probability. Penalizing a defendant based on a mere probability, no matter how high, represents entering a judgment without reaching the material truth, which violates the core purpose of criminal litigation. Because no concrete, clear, and convincing evidence free from reasonable doubt has been uncovered to prove that the defendant committed the imputed offense, he must be granted an Acquittal pursuant to Article 223/2-e of the CMK. I am therefore unable to align with the majority opinion of the esteemed panel.”

Conclusion and Strategic Legal Assessment

This model dispute file, featuring the meticulous dissenting opinion of the senior heavy penal judge, was forwarded by our firm to the Regional Court of Appeal (Bölge Adliye Mahkemesi - BAM) for appellate review. Despite the file containing massive volumes of complex data and highly contradictory evidence that required detailed cross-examination, the Regional Court of Appeal affirmed (onamıştır) the majority's conviction within a mere 15 days.

As a veteran criminal defense specialist who has served the law for decades, I must state with grave concern that if the appellate panel had merely read the reasoned judgment and executed a baseline comparative evaluation of the conflicting evidence, a minimum timeline of three months would have been required. This lightning-fast processing reveals that the appellate file was affirmed summarily, without its cover ever being opened.

The materialization of such deep-seated institutional prejudice within judicial bodies regarding security offenses presents a severe danger, as it strips citizens of their core constitutional right to be tried under the safeguards of Legal Certainty.

[Diagram tracking the procedural pipeline of a criminal case file from the initial Investigation to the rapid Summary Affirmation by the Appellate Court, highlighting the erosion of Legal Certainty]

Despite these challenging judicial environments, criminal procedure must remain anchored to universal norms and the rehabilitative, protective principles of contemporary criminal law. The European Convention on Human Rights (ECHR) stands as a superior norm within our domestic legal hierarchy pursuant to Article 90 of the Constitution. Therefore, the constitutional and statutory safeguards governing trial methods, evidence admissibility, and individual culpability must be executed with absolute fidelity by judicial organs. Ensuring that every citizen under a cloud of suspicion benefits from these universal guarantees is a mandatory requirement of the Principle of Legal Certainty.

The ancient maxim "Justice is a necessity for everyone" forms the bedrock of the rule of law and the collective conscience of society. Statutes must be executed equally over every individual, without discrimination based on language, religion, race, gender, or political opinion (The Principle of Universal Equality).

Justice must maintain an equal distance from all actors, refusing to serve as an instrument for the powerful or aligned factions (The Principle of Uniform Application of Justice). Justice provides the structural mortar that holds social life together. Those who choose to ignore or neutralize the safeguards of justice today must look at the mirror of history and remember that tomorrow, they themselves may desperately require the protection of those exact same legal shields.

We conclude our structural legal assessment by invoking the timeless definition of justice articulated by the great philosopher of political and moral virtue, Aristotle:

“Justice is the ultimate virtue; it serves as the moral guide in the human quest for a better life, and stands as the political expression of the principle of the common good and mutual benefit that constructs a truly civilized society.”

REFERENCES:

• Statutory Codifications: mevzuat.gov.tr

• Precedents of the Court of Cassation: yargitay.gov.tr

• Doctrinal and Jurisprudential Databases: lexpera.com.tr