Attending a meeting, expressing an opinion or following a publication does not, on its own, prove every element of membership of an armed organization. Yet it cannot be said that an activity connected with constitutional rights can never be assessed in a criminal file. The decisive question is whether the acts attributable to the person are established by lawfully obtained evidence, and whether it is explained how those acts show a knowing and willing participation in the organization's hierarchical structure.
The AYM's Metin Birdal decision examines whether attendance at meetings may be assessed as evidence in organization membership proceedings. The decision shows the relationship between the overall events and the individual's own conduct. A regular participant in a peaceful meeting is not in the same position as a person who is accepted, on the basis of concrete evidence, to have organized acts of violence.
Where the line lies between exercising a constitutional right and criminal liability
A conduct being an offence and being assessed as evidence are different
In criminal procedure, a fact entering the file as evidence does not necessarily mean that the fact itself constitutes a separate offence. Attendance at a meeting may be considered in this context too. However, usability as evidence does not mean sufficiency for a conviction. Whether the evidence belongs to the person, how it was obtained, its context and its probative strength are examined separately.
For example, an image showing that a person was in a particular place on a particular date may prove where that person was. Additional explanation is needed to conclude that the same image also proves that the person received orders, organized violence or joined a hierarchy. The gap between a fact and its legal consequence cannot be filled with general characterizations.
Other people's acts cannot automatically be attributed to a person
Under the principle of personal criminal liability in Article 38 of the Constitution, conduct within a group must be individualized. Violence in one part of a demonstration does not show that everyone who had come to that area committed the same act. Where the person was, what they did, which stage of the event they took part in and whether they could leave are all important. The legality and foreseeability of criminal liability are also discussed in our article on the principle of legality of crimes and penalties.
This distinction does not prevent violent conduct from being the subject of a criminal investigation. The State has a duty to protect individuals from terrorism and violence. However, the security aim does not replace the obligation to show the person's concrete act and intent. In constitutional review, public security and the exercise of rights are considered together on the basis of the actual facts of the file. The limits of propaganda-type statements are covered in our article on the boundary between terrorist propaganda and freedom of expression.
What the Metin Birdal decision examined
The applicant's conviction did not rest solely on attendance at meetings
In the Metin Birdal application, the applicant argued that using his attendance at certain demonstrations as evidence of membership of a terrorist organization violated the right to hold meetings and demonstration marches. The AYM accepted that this use constituted an interference within the scope of Article 34 of the Constitution.
However, the assessment did not rest on the number of meeting attendances alone. According to the findings accepted by the first-instance court, the record included images, organizational conduct attributed to the person, relations with other persons and other evidence in the file. The AYM examined the assessment of conduct at demonstrations linked to acts of violence together with the other facts. It would therefore be wrong to summarize the decision as holding that attending a peaceful gathering alone amounts to organization membership. See Metin Birdal [GK], Application No. 2014/15440, May 22, 2019, §§ 63–82.
The operative part and the other complaints must be reported separately
Summary of the AYM ruling: The complaint concerning the right to hold meetings and demonstration marches was found admissible, and the Court unanimously held that Article 34 of the Constitution had not been violated. The complaint concerning the right to a fair trial was found inadmissible on the ground that it was manifestly ill-founded.
Legal characterization: The main issue examined is how using activities at meetings as evidence in a conviction for organization membership affects the right to hold meetings. The decision is not a general criminal-law rule on all forms of expression. Moreover, the operative part contains no separate finding of a violation of Article 26 of the Constitution.
Although the outcome of the decision is unfavorable, the proof and reasoning standards in its reasoning are important for the defense. Relying on an AYM decision means more than attaching its result to the file. It requires showing that the facts that determined that result also exist in the present case. The general framework of the right to hold meetings is explained in our article on the right to hold meetings and demonstration marches.
How organizational ties must be established
Hierarchical participation and ideological closeness are not the same thing
The AYM requires proof, with sufficient reasoning, that the person knowingly and willingly joined the hierarchical structure of the organization. Ideological closeness, acquaintance or social relations with a particular circle are not the same as the elements of organizational participation. The prosecution's case must explain which conduct of the person shows which organizational link.
In making this explanation, the continuity, variety and intensity of the activities matter. However, the assessment cannot be reduced to a count. The existence of three separate meeting records is not sufficient without an explanation of the organizational character of the conduct. On the other hand, the nature of a single document and its relationship to other evidence cannot be disregarded merely because it is one document. The real question is what result the evidence reliably proves. Interference with membership of associations is examined in our article on association membership and freedom of association.
When evidence is assessed together, the reliability of each item must be preserved
The AYM's direct statement reads:
“The function of evidence is to enable judicial authorities to reach a conclusion and deliver a judgment.”
Source of the quotation: Metin Birdal [GK], Application No. 2014/15440, May 22, 2019, § 70. This sentence is a direct quotation, translated from the Turkish original; the practical explanations that follow are the author's assessment.
Assessing evidence together must not turn into an assumption that each uncertainty confirms another uncertainty. Whether a person can be identified in an image, whether a message really belongs to them, and which fact a witness directly observed must each be tested separately. Complementary evidence and records that repeat the same unverified claim do not have the same probative weight.
Under Article 217 of the Code of Criminal Procedure (CMK), evidence relied on for a judgment must have been lawfully obtained and discussed in the proceedings. A request to examine a record in its entirety or to dispute whose it is cannot be dismissed by saying that the file contains other evidence. The request must explain how it relates to the outcome of the dispute.
Decisive questions when reviewing the file
Context must be preserved in image and communication records
A short video excerpt may not show the start of the meeting, the person's later departure or that they took no part in violent conduct. A single sentence in a message may take on a different meaning without the earlier and later messages. Therefore, whether the original recording exists, when it was made, its integrity, the method of analysis and its attribution to the person must all be examined.
In the defense, it should not be argued that every technical objection requires an expert examination. The concrete dispute must be identified: is the identification of the person contested, is the file incomplete, is the time information contradictory, or is the court reading the meaning of the record differently? The request should be framed to address that question.
A witness account must separate the source of knowledge from concrete conduct
A witness saying that a person is linked to an organization is different from describing on which date, under which instruction or through which act the person acted. Direct observation, information heard from others and the witness's own interpretation must be kept apart. Contradictions, the conditions of identification and the defense's opportunity to question the witness are assessed.
A prosecution may rest on several mutually consistent records rather than a single fact. In that case, saying only that each fact is not an offence on its own is not a sufficient defense. It must also be explained why the facts together do not show hierarchical participation, or which link rests on an assumption.
| Record reviewed | What it can prove | Matters to be explained separately |
|---|---|---|
| Meeting footage | Place, time and visible conduct | Attribution to the person, the event as a whole, organizational link |
| Communication record | If verified, the existence and scope of the communication | Content, context, relationship with the person and lawfulness |
| Witness account | Concrete events known to the witness | Source of knowledge, consistency and the defense's objections |
| Multiple activities | Spread of conduct over time | Nature of the activities and knowing hierarchical participation |
Which distinctions must be made in defense and in applications
In ordinary legal remedies, objections to evidence and reasoning must be concrete
Against a conviction, naming freedom of expression or freedom of assembly is not enough. It must be shown which activity was an exercise of a right, which evidence was unlawful or unreliable, and which inference lacked reasoning. The right to hold meetings, the principle of personal criminal liability and the guarantee of a reasoned judgment should be raised by linking each of them to the same events.
Whether an appeal (istinaf) and, where available, a further appeal to the Court of Cassation (temyiz) is open depends on the nature of the decision. For decisions issued on or after June 1, 2024, the general time limits for appeal and further appeal are subject to a two-week regime running from service of the reasoned decision; the appealability of the decision and the transitional provisions must be examined separately. An objection to a judicial control order and an appeal against a conviction are not the same procedure. For individual application routes in criminal cases, see our article on individual application to the Constitutional Court in criminal proceedings.
An individual application is not a new appeal on the merits
The AYM does not act as a criminal court that re-weighs the force of each piece of evidence. In an application, the link between the error in the ordinary proceedings and the constitutional right must be explained. For example, attributing to the person violence that was not theirs, the absence of reasoning connecting the exercise of a right with organizational participation, or leaving a decisive defense unanswered may each be set out separately.
Once effective ordinary remedies have been exhausted, the general thirty-day time limit for an individual application applies. Decisions, service and knowledge records, appeal petitions, documents relating to the disputed activities and records showing that these complaints were raised before the earlier authorities should be submitted in an orderly way. Acceptance of an application or a finding of a violation does not automatically amount to an acquittal; the remedy is determined by the nature of the violation.
Author's assessment: Two stages must not be confused when applying the Metin Birdal decision. The first is whether an activity can be assessed as evidence at all. The second is whether that activity, together with other evidence, proves all the elements of membership. The strength of the defense depends on its ability to show concretely the gaps in the second stage.
Conclusion
Assessing expression and meeting activities in organization membership files requires individualized conduct, lawfully obtained evidence and sufficient reasoning. The outcome of the Metin Birdal decision, in which no violation was found, does not allow every meeting participant to be treated as an organization member. The decision should be read only as limited to how the activities and other evidence in that file were assessed together. For protective measures connected with the expression of opinion, see our article on judicial control and freedom of expression; the article on qualified rights in AYM decisions may also be reviewed.
Frequently Asked Questions
Is attending a meeting by itself organization membership?
No. The legal elements of membership and the person's knowing and willing participation in the organization's hierarchy must be established.
Can conduct that is not an offence be evidence in a file?
It can. However, being assessed as evidence does not show that it is sufficient for a conviction on its own. Attribution, context and probative strength are examined separately.
Did the Metin Birdal decision find a violation of the right to hold meetings?
No. The Court unanimously held that Article 34 of the Constitution had not been violated. The complaint concerning the right to a fair trial was declared inadmissible as manifestly ill-founded.
Can violence by other people in a crowd be attributed to all participants?
Not automatically. The person's own conduct and their connection with the event must be assessed on concrete evidence.
Does an AYM decision automatically overturn a conviction?
Not every AYM decision has that effect. The operative part of the decision, whether a violation exists and the redress determined are what matter.
Sources and legal bases
- AYM, Metin Birdal [GK], Application No. 2014/15440, May 22, 2019, in particular §§ 63–82 and the operative part. Official decision record · Full text access.
- AYM, Summaries of Qualified Rights Decisions (Nitelikli Haklar Karar Özetleri), June 2025, the section on the offence of membership in a terrorist organization and the summary of Metin Birdal.
- Constitution of the Republic of Türkiye (Türkiye Cumhuriyeti Anayasası), Arts. 13, 26, 34, 36, 38 and 148; Law No. 6216 on the Constitutional Court (Anayasa Mahkemesinin Kuruluş ve Yargılama Usulleri Hakkında Kanun), Arts. 45, 47 and 50.
- Turkish Criminal Code (TCK) No. 5237, Art. 314; Code of Criminal Procedure (CMK) No. 5271, Arts. 206, 217, 230, 273 and 291. For time-limit changes, Law No. 7499 amending the Criminal Procedure Code and certain other laws, Arts. 18, 19 and 22 (CMK Provisional Art. 6). Accessible publication of the amending text.