Levent Kenez/Stockholm
Turkey’s Supreme Court of Appeals (Yargıtay), the nation’s highest appellate court, overturned the terrorism conviction of an Islamic State in Iraq and Syria (ISIS) suspect who contacted ISIS members for help in reaching Syria to participate in the armed struggle waged by ISIS in the region.
According to a supreme court decision dated October 3, 2022 obtained by Nordic Monitor, the court stated that the defendant’s contact with the ISIS members via social networking sites such as WhatsApp, Telegram and Facebook and asking about the situation on the roads for going to Syria would not constitute evidence of membership in a terrorist organization.
The court also concluded, however, that the sharing of pictures praising ISIS, posters promoting the organization and photos of militants on the defendant’s Facebook page did in fact indicate that he was a member of the organization.
The Supreme Court of Appeals overturned the local court’s verdict and ruled that the accused be tried again. The supreme court also stated in its ruling that it accepted membership in a terrorist organization as receiving orders from the organization.
The supreme court’s ruling:
Yargıtay İçtihat newLegal experts contacted by Nordic Monitor said the supreme court’s decisions were very liberal when it came to ISIS members but that they did not see the same liberal attitude in the court’s decisions on Kurdish suspects and members of Gülen movement, which is critical of Turkish President Recep Tayyip Erdoğan.
For instance, the Turkish government accepted such activities as having an account at the Gülen-affiliated Bank Asya, holding an administrative position at a Gülen movement-linked institution, subscribing to the group’s publications, being a member of a trade union or other institution linked to the Gülen movement and using the ByLock encrypted messaging app as benchmarks for identifying and arresting tens of thousands of followers of the Gülen movement on charges of membership in a terrorist organization.
On November 15 the United Nations Human Rights Committee, in a decision on a Gülen-affiliated defendant’s application, announced that “as a matter of principle, the mere use or download of a means of encrypted communication or bank account cannot indicate, in itself, evidence of membership of an illegal armed organization, unless supported by other evidence, such as conversation records.”
According to the jurisprudence of the European Court of Human Rights (ECtHR), sympathizing with a terrorist organization is not considered a crime if it does not involve violence.
It is well known that the Turkish judiciary and security forces are tolerant of ISIS members, and ISIS even allegedly received support from Turkey for fighting Kurdish militants in Syria, which Turkey considers terrorists.
Turkey’s most-wanted list includes a few ISIS suspects, while many critics who have nothing to do with terrorism are included on the list of fugitives, yet another sign of how the government is not really interested in cracking down on ISIS. There are only 84 alleged ISIS members out of the 1,304 people named on the list, amounting to roughly 6 percent of the total being sought. Since its creation, the list has never included Abu Bakr al-Baghdadi, the former leader of ISIS who was killed in a US raid in October 2019, a few kilometers from the Turkish border in northern Syria, despite the fact that ISIS has killed more than 200 civilians in Turkey and abroad and a number of soldiers, including two who were burnt alive, and carried out a car bomb attack against the Turkish police. Similarly, al-Baghdadi’s successor, Abu Ibrahim al-Hashimi al-Qurashi, who was reportedly killed this week, is not listed as wanted.
Turkish officials do not disclose the number of successful convictions in ISIS cases and decline to respond to parliamentary questions asking for such information. Instead, they often float figures on the number of detentions and in some cases arrests, which in many cases result in acquittal and release.
According to Interior Minister Süleyman Soylu, police detained 2,438 ISIS suspects in 2021, but only 487 of them were formally arrested, corresponding to a 20 percent arrest rate. In other words, four out of five detained ISIS suspects were never put in jail. He did not provide figures on how many were let go after arrest. In most cases, ISIS suspects who were formally arrested pending trial were released by Turkish courts at their first hearing.
Thousands of militants, both Turkish and foreign, have used Turkish territory to cross into Syria with the help of smugglers in order to fight alongside ISIS groups there. Turkish intelligence agency MIT has facilitated their travel, with Kilis, a border province in Turkey’s Southeast, one of the main crossing points into ISIS-held territory. Human smugglers were known to have been active in the border area, although Turkish authorities often overlooked their trips in and out of Syria.
