Legal summary
May-June 2026
Yasak v. Türkiye [GC] - 17389/20
Judgment 5.5.2026 [GC]
Article 7
Article 7-1
Nulla poena sine lege
Nullum crimen sine lege
Conviction for membership of an armed terrorist organisation without establishing the mens rea required for the offence, through an individualised and contextual assessment of criminal liability:violation
Facts – In February 2018 the Assize Court sentenced the applicant to seven years and six months’ imprisonment for membership of an armed terrorist organisation, referred to by the Turkish authorities as the “Fetullahist Terror Organisation/Parallel State Structure” (“the FETÖ/PDY”), which they consider to be responsible for the attempted coup d’état of 15 July 2016. His conviction was based on, inter alia, that he had been active at a level entailing responsibilities within the organisation and engaged in activities on its behalf, which fell within the scope of Article 314 § 2 of the Criminal Code, in particular from 2011 to 2014. His appeals were unsuccessful.
In a judgment delivered on 27 August 2024, a Chamber of the Court held, unanimously, that there had been no violation of Article 7 of the Convention in that there had existed at the relevant time a legal basis for the offence with which the applicant was charged and that its definition was sufficiently clear to satisfy the requirements of foreseeability under that provision. It also held, unanimously, that there had been no violation of Article 3 of the Convention with respect to the applicant’s conditions of detention in prison.
On 16 December 2024 the case was referred to the Grand Chamber at the applicant’s request.
Law –
Preliminary issues –
(1) The Government’s request to reconsider the decision of the Grand Chamber panel – Shortly before the delivery of the Chamber’s judgment and a few days after the publication of the press release announcing the forthcoming delivery, the applicant sought to withdraw his application indicating, inter alia, the possible repercussions of the delivery of the judgment on his private life, and criticising the use allegedly made of the statements by witnesses who had benefited from the “active repentance” regime. The Chamber had rejected his request under Article 37 § 1 in fine of the Convention, having regard to the state of the proceedings and in the interests of the proper administration of justice. Following delivery of the judgment, the applicant requested that the application be referred to the Grand Chamber under Article 43 and his request was granted by a panel of the Grand Chamber in accordance with Article 43 § 2.
The Court observed that where a case had been duly referred at the request of one of the parties, as in the present situation, it was not for the Grand Chamber to assess the appropriateness of the decision made by the panel. Accordingly, once the panel had taken the view that the case raised, or could raise, a serious question or issue within the meaning of Article 43 § 2, it was the entire “case”, in so far as it had been declared admissible, that was automatically referred to the Grand Chamber, to be decided afresh by means of a new judgment.
Conclusion: Government’s request rejected.
(2) Abuse of the right of individual application – The present application did not correspond to any of the situations in which the Court had applied Article 35 § 3 (a). Although, the applicant’s change of mind, first asking for the striking out of his application and then for a referral to the Grand Chamber, might seem surprising, it could not be regarded as amounting to an “abuse” of the right of individual application. In addition, even assuming that the protection of his individual rights had not been the main purpose of his action and that his request had been primarily aimed at challenging the legal designation of an organisation by the Turkish courts – which could have been regarded as “manifestly contrary to the purpose of the right of application”– the Court emphasised that his status as a victim, in the light of his complaints under Articles 3 and 7, could not be called into question. Nor was there sufficient evidence to find that his conduct had impeded the proper conduct of the Grand Chamber proceedings; parties could submit arguments and counter‑arguments relating to their case, which the Court could accept or reject, and which could not in themselves be regarded as an abuse of the right of individual application. Lastly, the inadmissibility of an application on that ground had to remain an exception.
Conclusion: Government’s preliminary objection dismissed.
Article 7:
(1) General principles –The Court recalled, inter alia, that Article 7 enshrined the principle of nulla poena sine culpa, as it protected the right of any individual not to be punished without his personal liability having been duly established. That requirement of individualised liability involved a number of interrelated principles:
– Article 7 precluded criminal liability based on collective guilt or guilt by association; liability had to be personal to the individual accused.
– Personal liability for punishment required not only proof of the material acts, but also the existence of a mental link (mens rea) through which an element of liability might be detected in the conduct of the individual who had physically committed the offence. That was not to say that presumptions of liability giving rise to certain forms of objective or strict liability were precluded, provided they comply with Article 6 § 2. Presumptions of law or fact operated in every legal system and were not prohibited by the Convention, but had to remain within certain limits as regards criminal law. According to the Court’s case-law, those limits would be overstepped where a presumption had the effect of making it impossible for an individual to exonerate himself from the accusations against him, thus depriving him of the benefit of Article 6 § 2.
– As the Court had already affirmed, there was a clear correlation between the degree of foreseeability of a criminal-law provision and the personal liability of the offender. Bearing in mind the object and purpose of Article 7 and irrespective of the factual basis for the offence, the substantive guarantees of legal certainty had to be satisfied.
(2) Application to the present case –
(a) Preliminary observations – The Court had to consider whether the acts for the commission of which the applicant had been sanctioned had fallen within the definition of a criminal offence that had been sufficiently foreseeable. In other words, the examination of the complaint under Article 7 rested on the premise that the applicant had committed all of the acts established in the domestic courts’ findings of fact.
The Court pointed out that it had no reason to depart from a number of its conclusions in the recent judgment in Yüksel Yalçınkaya v. Türkiye [GC] which were also relevant to the examination of this case. In that case it had held, inter alia, that the offence provided for in Article 314 § 2 of the Criminal Code, as defined by the legislation and case-law, had a legal basis that was sufficiently clear and foreseeable to comply with the requirements of Article 7.
(b) The issue to be decided in the present case – The Court considered that an identical question was raised to that examined in Yüksel Yalçınkaya, although the applicant had had been found guilty of the same offence as the applicant in that case on the basis of a wider range of evidence. The Court had again to determine whether the applicant’s conviction for membership of an armed terrorist organisation had been secured without duly establishing, in an individualised manner, the presence of all of the constituent elements of that offence. It thus had to examine the mens rea requirement for the offence and how the domestic courts had evaluated the applicant’s mens rea in relation to that offence.
(i) The mens rea requirement for the offence of membership of a terrorist organisation – The offence of membership of a terrorist organisation was undeniably a serious one, incurring severe penalties. In the context of that offence, every individual had a right not to be punished without personal liability having been duly established – which included establishing the mental element of the offence (mens rea). The central element that had to be established before a person could be convicted of that offence was the nature of the relationship between the individual and the given organisation, which was intrinsically linked to establishing the existence of the requisite mens rea. Accordingly, criminal liability could not be based on collective guilt, nor on guilt by association; it had to be individualised to the accused person, and clearly involve the establishment of mens rea.
The offence under Article 314 of the Criminal Code required the establishment of mens rea. As Article 314 § 2 specifically concerned membership of an armed terrorist organisation which resorted to “violence” it was necessary to show that the defendant had been aware, at the relevant time, of the organisation’s objectives and violent methods; that awareness was an essential prerequisite for establishing mens rea. It was precisely within this framework that the case-law interpretation of direct intent (dolus directus) had been given by the Court of Cassation in its relevant case-law, according to which it must be established that the person had acted “knowingly” and “willingly” – in other words, that he or she had wished to be part of such an organisation and had demonstrated a continuous willingness to belong to it. That criterion made it possible to distinguish genuine adhesion to the organisation and its violent objectives from mere contact, or from association without a clearly established criminal intent. It also constituted an essential guarantee in the areas of legal certainty and the protection of fundamental rights in relation to that offence.
(ii) The domestic courts’ establishment of the mens rea of the offence in the present case – The need to establish the presence of the elements of the relevant offence on an individual basis had been even more compelling in the present context, given the organisation’s presence in Turkish society for a considerable period of time, as noted by the domestic judicial authorities. In such circumstances, it had been essential that the criminal law be applied in a manner that remained foreseeable and strictly confined to its clearly defined limits, to avoid imputing liability on the basis of mere association. The establishment of the constituent elements of the offence – in particular the drawing of inferences as to mens rea from the acts that had been attributed to the applicant and the context in which those acts had occurred – had to be undertaken with particular rigour. There had been two relevant aspects in that regard.
The first aspect had been the temporal element of the offence. The bill of indictment did not clearly indicate the time-period during which the applicant was alleged to have been a member of the organisation and aware of its violent objectives. In its reasoning the first-instance court had not explained why the applicant’s specific activities up to and including 2014 were held to establish the requisite mens rea beyond reasonable doubt. Its judgment lacked the necessary rigour, a shortcoming that had not been remedied in the later stages of the proceedings. The period of the applicant’s alleged membership not only preceded by one and a half to two years the attempted coup but was also well before the Turkish authorities’ official recognition of the FETÖ/PDY as a terrorist organisation. It had only been after the events described in detail in the Assize Court’s judgment in the applicant’s case that the organisation – initially perceived as a movement with religious, moral and educational objectives – had been officially designated as a terrorist organisation, first by the administrative authorities, then by the domestic courts following the attempted coup. In that context, the domestic courts had a duty to assess whether the applicant’s participation in an educational structure within that organisation could be regarded as amounting to deliberate and conscious adhesion to a terrorist project, or whether it might be consistent with more innocent participation.
Although the Court did not question the domestic courts’ position that the fact of maintaining ties with the organisation after December 2013 could be a relevant factor in assessing whether or not an individual was criminally liable, that general consideration did not dispense them from their overall obligation to establish the mens rea, through an individualised and contextual assessment that was strictly limited to the temporal framework of the alleged offence.
Particular care had to be taken for instance when the alleged facts bore no direct link to acts of violence. The Court acknowledged that, in practice, cases involving membership of criminal or terrorist organisations typically involved the inferring of conclusions about mens rea from an accused person’s conduct and activities as a whole, over a given period of time. Those acts might reveal an organic link with the organisation, attesting to conscious adherence to and active participation in its objectives. Direct evidence of membership, such as a confession by the accused person, was relatively rare. It was therefore common for courts to rely on circumstantial evidence, from which they might infer that an individual was, or was not, a member of a given organisation. Such an approach was not in itself contrary to the Convention, provided that the exercise was carried out in accordance with Article 7. In the present case, however, the domestic courts had failed to take proper account of the relevant temporal element of the imputed acts and had not conducted the contextual analysis required in such circumstances.
The second aspect had been the fact that the applicant had worked in the organisation’s educational branch. All of the acts in respect of which he had been charged had related to posts that he had held within that branch. As was clear from domestic courts’ findings, the organisation had for many years been deeply embedded in several sectors of Turkish society, especially in the field of education, where it had operated in a legal manner, presenting itself as a “moral and educational movement”. That modus operandi, which had encompassed various spheres, could have led many individuals, at a given point, to maintain ties with the organisation’s visible structures, without being aware of its real objectives. It was thus all the more necessary to conduct an individualised and contextual assessment of the required intentional element which had to be established, on the basis of concrete evidence. The domestic courts had been therefore required to ascertain not only whether there had existed an actual link between the applicant and the members or structures operating within the organisation’s most central or strategic components, such as, for example, its military branch, but also whether the nature of that link had been such as to permit it to be legitimately inferred that he had possessed the requisite mens rea under domestic law. Instead, however, they had essentially relied on the applicant’s role in the field of education, without establishing – or even seeking to establish – the existence of a personal, functional or hierarchical link with the organisation’s strategic branches. Nor had they ascertained the extent of his responsibilities in relation to those branches, or his knowledge of the organisation’s terrorist objectives, at a time when no act of violence had been attributed to the organisation.
The domestic courts had found that the applicant had been “active at a level entailing responsibilities” within the organisation. Although in its case-law the Court of Cassation had taken the view that there existed a seven-layered hierarchy within the organisation with varying degrees of culpability of individuals operating at those different levels, the domestic courts had not addressed that point at all, and had failed to clarify at what level of that hierarchy the applicant had been considered to be when holding the position of principal regional student leader.
Where a court sought to infer the mens rea from facts established in circumstances comparable to those of the present case, such an inference was compatible with the requirements of Article 7 only if it was based on an individualised analysis, closely anchored in the specific facts of the case. The mere fact, in that regard, of belonging to a structure that had been, at the material time, largely perceived as a religious group could not, by itself, lead to a conclusion that the applicant, when carrying out the acts which formed the basis of his conviction, had possessed the requisite mens rea for the offence. In the present case, however, the domestic courts had relied instead on general considerations about the organisation’s development – from a religious movement to an entity subsequently designated as an armed terrorist organisation – without establishing that the applicant had been aware of this transformation, or that he had joined the organisation and continued to maintain his links with it in full knowledge of the facts.
The domestic courts’ failure to conduct any assessment of the applicant’s mens rea in the light of the specific evidence regarding his actions and role had amounted to a fundamental breach of the requirement to conduct an individualised assessment of criminal liability. The Court noted in that connection the absence of any meaningful explanation in the relevant domestic judgments as to how one of the essential elements of the offence, namely the mens rea, had been determined in the applicant’s case. In particular, the domestic courts had not explained why the fact that the applicant had held certain responsibilities within the organisation’s educational branch – well before it had been designated as a terrorist organisation by the national authorities and the courts – had led to the conclusion that he had been aware of the organisation’s nature and terrorist objectives, had intended to be part of that organisation and had contributed to it in an active and continuous manner, as required under domestic law.
Such an approach violated the individual right, guaranteed by Article 7, not to be punished without the existence of a mental link through which an element of personal liability had to be established
Conclusion: violation (eleven votes to six).
Article 3:
Lastly, the Court held that there had been a violation of Article 3 resulting from the cumulative effect of the applicant’s conditions of detention in prison for approximately four years (persistent overcrowding accompanied by inadequate sanitary facilities and lack of an individual bed in a dormitory for over fourteen months) which had attained the minimum level of severity required to fall within the scope of that provision.
Conclusion: violation (nine votes to eight).
Article 41:
Non-pecuniary damage – The Court considered, as in Yüksel Yalçınkaya, that the reopening of the criminal proceedings would constitute the most appropriate remedy in respect of the violation of Article 7, provided that when requested, that remedy was implemented diligently and in full conformity with the Court’s findings in the instant judgment. It therefore found that the finding of a violation of Article 7 constituted sufficient just satisfaction under this head. In respect of the violation of Article 3 it awarded the applicant EUR 2,800.
Pecuniary damage – Claim dismissed.
(See Miroļubovs and Others v. Latvia, 798/05, 15 September 2009, Legal Summary; G.I.E.M. S.r.l. and Others v. Italy [GC], 1828/06 et al, 28 June 2018, Legal Summary; Yüksel Yalçınkaya v. Türkiye [GC], 15669/20, 26 September 2023, Legal Summary)
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This summary by the Registry does not bind the Court.
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