Abdullah Bozkurt/Stockholm
Turkey’s top appeals court several years ago overturned the convictions of two ISIS-linked militants on charges of attempting to overthrow Turkey’s constitutional order while upholding convictions for attempted murder stemming from an armed attack on a NATO facility in İzmir.
The ruling by the 3rd Criminal Chamber of the Supreme Court of Appeals in November 2023 exposed major procedural flaws in the prosecution of the case and highlighted longstanding concerns over how terrorism-related cases are handled in Turkey’s increasingly politicized judicial system.
The case centered on a pre-dawn attack carried out on April 22, 2019, against the guard post of NATO’s Allied Land Command (LANDCOM) facility in İzmir, one of the alliance’s most important military commands in the region. According to court records, the two attackers, identified only by the initials E.D.K. and B.D.K., used pump-action shotguns and tactical gear and wore black ISIS-style clothing and face masks during the assault.
Court documents state that the suspects had purchased two shotguns online days before the attack, concealed the weapons and ammunition in a box and traveled by taxi to the vicinity of the NATO installation. Surveillance records showed they changed into black clothing bearing ISIS insignia inside a nearby apartment building before moving into position.
At approximately 2:44 a.m., the militants opened fire on the NATO guard booth. Investigators later identified seven bullet impacts on the sentry box and two more on a nearby residential compound’s walls. A forensic report determined that the shooters were firing from an effective lethal distance of roughly 5.3 meters.
Digital evidence recovered from the suspects included ISIS propaganda, images of senior ISIS figures and videos glorifying the group’s military operations. Prosecutors also cited a January 2019 ISIS online video urging supporters to conduct attacks wherever they were located.
The court ruling further revealed that shortly before the attack, the suspects posted photographs of themselves carrying weapons and wearing tactical gear in a Telegram channel called “Muslim Brothers” (müslüman kardeşler), where they allegedly prayed for success in carrying out the operation. The suspects used ISIS-style aliases during communications.
Investigators never explained how or why Turkey’s counterterrorism units and intelligence services failed to detect or act on what appeared to be a clear warning sign raised by the ISIS attackers, who effectively announced their impending assault in a Telegram channel at 1:33 a.m. on April 21, 2019 — roughly a day before the attack was carried out.
The ISIS militants also conducted surveillance ahead of the attack, scouting the NATO facility on the day of the assault and identifying possible positions from which to launch the operation. Yet this reconnaissance activity also appears to have gone completely undetected, despite the fact that the NATO installation was supposedly under heavy, round-the-clock security protection.
The apparent ease with which the attackers were able to monitor the area, move into position and later carry out the armed assault has raised additional questions about serious lapses in Turkey’s intelligence gathering and protective security measures surrounding one of NATO’s most sensitive military facilities.
Despite the apparent intelligence and law enforcement preventive failures, no officials were held accountable, no internal inquiry was publicly disclosed and no one was charged with negligence or dereliction of duty.
Despite affirming that the attack was clearly linked to ISIS and upholding the attempted murder convictions of the defendants, the appeals court, dominated by Islamists and nationalists aligned with the government of President Recep Tayyip Erdogan, overturned their convictions for violating the constitutional order under Article 309 of the Turkish Penal Code.
Article 309 of the Turkish Penal Code criminalizes attempts to overthrow or obstruct Turkey’s constitutional order through force, terrorism or violence. Convictions under the article carry sentences of aggravated life imprisonment and are commonly used in coup, terrorism and national security cases.
Although the Erdogan government has blatantly abused Article 309 of the Turkish Penal Code to punish legitimate critics, political opponents, journalists and human rights defenders, it has been far more reluctant to invoke the provision against genuine terrorist organizations such as ISIS and other armed jihadist networks that openly seek to undermine or replace Turkey’s constitutional order through violence.
The high court found that prosecutors had never formally filed a proper indictment accusing the defendants of attempting to overthrow the constitutional order. Instead, the original indictment only charged them with membership in a terrorist organization. The appeals court ruled that the lower court improperly expanded the charges during trial proceedings without obtaining a superseding indictment.
In other words, citing alleged procedural flaws, the court overturned the convictions of the ISIS militants on charges of attempting to overthrow Turkey’s constitutional order, adopting a far more lenient approach, in stark contrast to the treatment of journalists, dissidents and political opponents, whose appeals are routinely and summarily rejected by the very same court.
At the same time, perhaps in an effort to deflect mounting criticism over the handling of the case, the appeals court merely revised the classification of the attempted murder conviction rather than addressing the broader failures and unresolved questions surrounding the investigation.
The court said the lower court should have convicted the ISIS militants of premeditated attempted murder, an aggravated form of the offense under Turkish criminal law. Yet it quickly added that the modification in the legal classification did not require a retrial, effectively limiting the ruling to a technical correction without reopening the substance of the case.
The ruling underscores recurring problems in Turkey’s terrorism prosecutions, particularly in cases involving ISIS, al-Qaeda and other armed jihadist networks, which critics say have often been treated with a comparatively more lenient approach by the judiciary. At the same time, Turkish authorities routinely hand down harsh sentences to government opponents and critics — including academics, journalists, politicians and human rights defenders — most of whom are prosecuted merely for exercising rights nominally protected under Turkey’s own constitutional framework.
The case in Izmir is particularly notable because it involves a direct ISIS-linked attack on a NATO military installation, yet the prosecution still failed to properly structure one of the most serious constitutional charges available under Turkish law.
The decision also highlights broader concerns about the quality of terrorism investigations and prosecutions in Turkey following the mass purge of judges, prosecutors and police chiefs carried out between 2014 and 2017 by the Erdogan government. Tens of thousands of law enforcement officers, including veteran counterterrorism officials who had spent decades monitoring jihadist networks, were summarily and arbitrarily dismissed, while numerous ongoing surveillance and intelligence operations targeting extremist groups were abruptly halted.
At the same time politically motivated mass prosecutions severely weakened professional standards within both the judiciary and law enforcement institutions, undermining counterterrorism capabilities and contributing to increasingly error-prone, inconsistent and controversial rulings in high-profile national security cases.
