GRAND CHAMBER
CASE OF YASAK v. TÜRKİYE
(Application no. 17389/20)
 
JUDGMENT
Art 43 • Government’s request to reconsider the referral decision of the Grand Chamber panel rejected • Appropriateness of the decision not to be assessed by the Grand Chamber • Case, in so far as declared admissible, automatically referred to the Grand Chamber to be decided afresh
Art 35 § 3 (a) • Application not amounting to an abuse of the right of application
Art 7 • Nullum crimen sine lege • Nulla poena sine lege • Conviction for being member of armed terrorist organisation without any assessment of the applicant’s mens rea of the offence • Enumeration of the principles of the requirement of individualised liability – nulla poena sine culpa • Domestic courts’ failure to establish the mens rea required under domestic law, through an individualised and contextual assessment of criminal liability strictly limited to the temporal framework of the offence • Reliance of the applicant’s role in the educational field without establishing the existence of a personal, functional or hierarchical link with the organisation’s strategic branches and the extent of his responsibilities • Reliance on general considerations about the organisation’s development from a religious movement to an entity designated as a terrorist organisation without establishing the applicant’s awareness of this transformation and that he joined the organisation and maintained links in full knowledge of those facts • Violation of the individual right not to be punished without the existence of a mental link through which an element of personal liability must be established
Art 3 • Degrading treatment • Cumulative conditions of the applicant’s conditions of detention in prison attained the minimum level of severity
 
Prepared by the Registry. Does not bind the Court. STRASBOURG
5 May 2026
 
This judgment is final but it may be subject to editorial revision. Table of Contents
INTRODUCTION
PROCEDURE
THE FACTS
I. THE BACKGROUND TO THE CASE
A. Attempted coup d’état of 15 July 2016 and declaration of a state of emergency
B. The classification of the FETÖ/PDY as a terrorist organisation
II. THE CIRCUMSTANCES OF THE CASE
A. The applicant’s arrest and his statements
B. The bill of indictment
C. The evidence obtained during the investigation and subsequent criminal proceedings
1. Witness statements taken in the criminal investigation initiated by the Çorum Public Prosecutor’s Office
(a) B.A.’s statements
(b) Y.B.’s statements
(c) A.B.’s statements
(d) H.E.’s statements
(e) A.S.’s statements
2. The analysis report on HTS records from a mobile telephone line
3. The report on payment of the applicant’s social-security contributions
4. Document on the applicant’s banking activities with Bank Asya
D. Other documents produced by the Government
E. The proceedings before the domestic courts
1. The proceedings before the Çorum Assize Court
2. The applicant’s conviction
3. The judgment of the Çorum Assize Court
4. The appeal lodged by the applicant
5. The applicant’s appeal on points of law
6. The proceedings before the Constitutional Court
F. The applicant’s conditions of detention and the related proceedings
1. The applicant’s conditions of detention
(a) Detention in police custody
(b) Pre-trial detention in Çorum Prison
2. The steps taken by the applicant to complain about his conditions of detention in Çorum Prison
3. The applicant’s individual application concerning the conditions of his detention in Çorum Prison
RELEVANT LEGAL FRAMEWORK AND PRACTICE
I. DOMESTIC LAW AND PRACTICE
A. Domestic law
1. The Criminal Code (Law no. 5237 of 26 September 2004, entered into force on 1 January 2005)
2. The Prevention of Terrorism Act (Law no. 3713 of 12 April 1991)
B. Relevant domestic case-law
1. The case-law of the Constitutional Court
(a) The judgment of 4 August 2016 on the dismissal of two members of the Constitutional Court
(b) The Metin Birdal judgment of 22 May 2019
(c) The Adnan Şen judgment of 15 April 2021
(d) The Bilal Celalettin Şaşmaz judgment of 18 October 2022
2. The case-law of the Court of Cassation
(a) The judgments of 24 April 2017 and 26 September 2017
(b) The judgment of 24 October 2017
(c) Other relevant judgments of the Court of Cassation
3. The criminal proceedings against F. Gülen in 1999
II. RELEVANT INTERNATIONAL LAW AND PRACTICE
A. The United Nations
B. The Council of Europe
1. Opinion of the European Commission for Democracy through Law (Venice Commission) on Articles 216, 299, 301 and 314 of the Turkish Criminal Code
2. Council of Europe Commissioner for Human Rights
THE LAW
I. PRELIMINARY ISSUES
A. The Government’s request to reconsider the decision of the Grand Chamber panel
B. Abuse of the right of individual application
II. ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION
A. The Chamber judgment
B. Merits
1. Arguments of the parties
(a) The applicant
(b) The Government
2. Third-party observations
(a) The UN Special Rapporteur on Counter-Terrorism and Human Rights
(b) European Criminal Bar Association
(c) Italian Federation for Human Rights
3. The Court’s assessment
(a) Relevant general principles
(b) Application to the present case
(i) Preliminary observations
(ii) The issue to be decided in the present case
(iii) The mens rea requirement for the offence of membership of a terrorist organisation
(iv) The domestic courts’ establishment of the mens rea of the offence in the present case
(v) Conclusion
III. ALLEGED VIOLATION OF ARTICLE 3 OF the CONVENTION
A. The Chamber judgment
B. The parties’ submissions
1. The applicant
2. The Government
C. The Court’s assessment
1. Scope of the case
2. On the Government’s preliminary objection
3. The complaint under Article 3
(a) General principles
(b) Application of these principles to the present case

Outcome for Article 41: violation