ECHR renews focus on no punishment without law

By Ahmet Taş | Wise News Press

ANKARA, Turkey — Recent judgments by the European Court of Human Rights have underlined that the principle of no punishment without law cannot be weakened even during emergencies, attempted coups or terrorism-related proceedings.

Article 7 of the European Convention on Human Rights and Article 38 of the Turkish Constitution establish one of the most fundamental guarantees in criminal law: no one may be convicted for an act or omission that did not constitute a criminal offence at the time it was committed, and no heavier penalty may be imposed than the one applicable at that time.

This principle is known in legal terminology as nullum crimen, nulla poena sine lege. It means that a person may be convicted and punished only on the basis of law. But the guarantee is not limited to the formal existence of a written law. The offence must also be clear, accessible, foreseeable and protected from broad interpretation against the accused.

Article 7 cannot be suspended

Article 7 holds a special place in the European human rights system. It is one of the rights that cannot be derogated from even in times of war or other public emergencies threatening the life of the nation.

According to the ECHR, Article 7 must be interpreted and applied in a way that provides effective protection against arbitrary prosecution, conviction and punishment. For that reason, it is not enough for an offence to be defined in domestic law. If domestic courts interpret or apply that law in an unreasonable way, or expand the scope of the offence against the accused, this may itself lead to a violation of Article 7.

This approach shows that in criminal proceedings, attention must be paid not only to the wording of the law, but also to how courts interpret it and apply it to the concrete facts of the case.

The core issue for the rule of law is simple: a person must be able to know, with reasonable foreseeability, whether their conduct may give rise to criminal liability. If the law or judicial interpretation becomes unforeseeable, criminal law risks turning from a guarantee into a tool of arbitrary punishment.

Application of Turkish Penal Code Article 314 is under scrutiny

Article 314 of the Turkish Penal Code regulates the offences of founding, leading or belonging to an armed organization. Under the provision, those who establish or lead an armed organization may face 10 to 15 years in prison, while those convicted of membership may face 5 to 10 years.

After the attempted coup of 15 July 2016, Article 314 was widely applied in cases concerning the group referred to by Turkish authorities as the Fetullahist Terrorist Organization/Parallel State Structure. In this process, the question of which evidence and criteria are required to prove armed organization membership became a major issue both under domestic law and European human rights law.

The Turkish Constitutional Court’s decision of 5 November 2024, which annulled parts of the provision’s application area, is also seen as one of the domestic reflections of this broader debate.

The ECHR’s judgments in Yüksel Yalçınkaya v. Türkiye and later Yasak v. Türkiye have produced significant conclusions on evidentiary assessment, foreseeability and the prohibition of broad interpretation in armed organization membership cases.

Venice Commission warned about weak evidence

In its Grand Chamber judgment of 5 May 2026 in Yasak v. Türkiye, the ECHR referred to the opinion of the European Commission for Democracy through Law, better known as the Venice Commission, concerning several provisions of the Turkish Penal Code.

The Venice Commission noted that Article 314 does not contain a definition of an “armed organization” or “armed group.” Referring to the case-law of the Court of Cassation’s General Criminal Assembly, the Commission emphasized that the basic criteria for a criminal organization include at least three members, a hierarchical link, continuity and a common intent to commit offences.

According to the Commission, an abstract connection between members is not sufficient. There must be a hierarchical link, whether strict or loose; the members must share a common intent to commit crimes; and the group must have continuity over time.

The Venice Commission considered that convictions under Article 314 based on weak evidence could raise problems under Article 7 of the Convention. Criminal law must not be interpreted against the accused by analogy or through broad interpretation.

Organic link must be shown concretely

One of the Venice Commission’s key observations is that an allegation of membership in an armed organization must be proven with convincing evidence and beyond reasonable doubt.

According to the Commission, courts must demonstrate the accused person’s “organic link” with the organization. This link must be shown in terms of continuity, diversity and intensity. It must also be established that the accused knowingly and willingly acted within the hierarchical structure of the organization.

If these criteria are applied loosely, problems may arise under Article 7 of the Convention. In a serious offence such as membership of an armed organization, broadening the scope of interpretation may create unforeseeable criminal liability for the accused.

For that reason, in terrorism-related membership cases, courts must focus not merely on formal or indirect links, but on concrete acts, intent, knowing participation in a hierarchical structure and a continuing organic connection.

ECHR placed personal responsibility at the center

In Yasak v. Türkiye, the ECHR Grand Chamber emphasized that Article 7 does not only protect the legality of offences and penalties. It also safeguards the principle of personal responsibility.

According to the Court, no one may be punished unless their personal responsibility has been duly established. This approach excludes criminal liability based on collective guilt or guilt by association.

A person’s criminal responsibility cannot be established only through material acts. There must also be a mental link between the person and the conduct, meaning intent or another culpability element.

The ECHR warned that if domestic courts ignore the constituent elements of the offence, especially the mental element, Article 7 loses its purpose. Treating the offence as if it were a form of strict liability, or convicting a person based only on certain links or assumptions, may be incompatible with the guarantees of the Convention.

Emergency conditions do not remove legal guarantees

The ECHR has previously accepted in several cases that the attempted coup in Türkiye represented a public emergency threatening the life of the nation within the meaning of the Convention. However, the Court has also made clear that this does not mean the guarantees in Article 7 can be applied less strictly.

Even when terrorism offences are being prosecuted and punished, the core guarantees of the principle of no punishment without law must be preserved. The ECHR has stressed that even in the most difficult conditions, Article 7 must remain fully effective.

This approach confirms that the rule of law remains valid during exceptional periods. Public security, counterterrorism or coup-related threats do not eliminate the principles of legality, foreseeability and personal responsibility in criminal law.

Violation found in Yasak v. Türkiye

In its Grand Chamber judgment of 5 May 2026 in Yasak v. Türkiye, the ECHR found a violation of Article 7 of the Convention, which protects the principle of no punishment without law. The Court also found a violation of Article 3, which prohibits torture and inhuman or degrading treatment.

The application concerned Şaban Yasak, who had been convicted under Article 314/2 of the Turkish Penal Code for membership of an armed terrorist organization and had complained about the conditions he faced while serving his sentence in Çorum Prison.

The judgment is considered an important Grand Chamber decision strengthening the set of principles established after Yüksel Yalçınkaya v. Türkiye in relation to the application of Article 314.

The Court’s approach shows that domestic courts must evaluate evidence in terrorism-related membership cases not through broad interpretation, but within the clear elements of the law and the principle of personal responsibility.

Limits on broad interpretation are essential for rule of law

The prohibition of broad interpretation in criminal law is not merely a technical legal rule. It is a fundamental safeguard protecting individuals against arbitrary prosecution and conviction.

The emphasis of the ECHR and the Venice Commission shows that, especially in serious offences such as membership of an armed organization, convictions must be based on strong, concrete and convincing evidence. The accused person’s organic link with the organization, their position within the hierarchy, whether they acted knowingly and willingly, and the continuity, diversity and intensity of their acts must be clearly demonstrated in court decisions.

Interpreting laws and legal concepts so broadly that it becomes practically impossible for a person to clear themselves of the accusations against them is incompatible with the rule of law.

The ECHR’s latest judgments remind courts that even in the most difficult cases, the basic principle remains unchanged: the offence must be clearly defined by law, evidence must be convincing, personal responsibility must be concretely established, and no one should be punished through unforeseeable interpretations.

www.wisenewspress.com