The judgment of the Grand Chamber of the ECtHR dated 5 May 2026, Yasak/Türkiye, constitutes an extremely critical precedent with regard to the trials for membership in an armed terrorist organization conducted in the aftermath of July 15. The judgment is not merely an evaluation concerning the conviction of the individual applicant, Şaban Yasak; at the same time, it establishes a powerful European Convention on Human Rights standard regarding the limits within which evidence long-debated in Turkish criminal proceedings, such as “connection,” “contact,” “affiliation,” “past contact,” “role within the educational structure,” “witness testimony,” “Bank Asya transaction,” and “HTS record,” can form the basis of criminal responsibility. The subject of the judgment is the applicant’s conviction for the crime of “membership in an armed terrorist organization” pursuant to Article 314/2 of the Turkish Penal Code and the detention/prison conditions in Çorum Prison. The issue brought before the Grand Chamber was essentially examined with regard to two rights: the principle of no punishment without law, guaranteed under Article 7 of the Convention, and the prohibition of inhuman or degrading treatment, guaranteed under Article 3 of the Convention. The Court, by 11 votes to 6, decided that Article 7 had been violated; and by 9 votes to 8, that Article 3 had been violated.
The most important aspect of this judgment is that the ECtHR clearly states that criminal responsibility cannot be established through “collective guilt” or “guilt by association.” According to the Court, in an accusation of a serious crime such as membership in an armed terrorist organization, it is not sufficient for a person merely to have been present in a certain environment, to have established contact with specific individuals, to have participated in some activities within the educational structure in the past, or for some witnesses to refer to them by certain titles. Criminal courts must demonstrate, with concrete, individualized, and context-appropriate reasons, that the individual knew of the organization’s violent aims and methods, participated in these aims knowingly and willingly, and manifested the will of membership in a continuous manner. In the words of the ECtHR, in addition to the material elements of the crime, the mental element must also be clearly established; otherwise, punishment becomes detached from the principle of “individual fault,” and Article 7 of the Convention is violated.
The Grand Chamber has specifically emphasized mens rea, that is, the mental element of the crime. According to the Court, in Turkish domestic law as well, for the crime under TCK 314/2 to be constituted, the person must knowingly and willingly join the armed terrorist organization, know the nature and violent methods of the organization, and nevertheless maintain their connection with the organization. At this point, referring also to the Court of Cassation’s “direct intent” approach, the ECtHR stated that a genuine will of membership must not be confused with simple contact, social relationship, or a past religious/conversation/educational environment. Looking at the applicant’s situation in the judgment, it is observed that the local courts relied on elements such as the applicant assuming certain roles within the educational structure, some witnesses associating them with roles such as “BTM/BBTM,” the existence of certain connections in HTS records, the presence of Bank Asya transactions, and social security records. However, according to the ECtHR, the problem is not the existence of this evidence individually; it is that the local courts did not explain how they reached the conclusion, based on this evidence, that the applicant knew of the terrorist nature of the organization, adopted its violent aims, and knowingly and willingly became a member of this structure. In other words, the ECtHR went beyond the question “is there evidence?” and asked, “does this evidence genuinely prove the mental element of the crime?”
In this regard, the judgment is in the nature of a continuation and expanded application of the Yalçınkaya judgment. In the Yalçınkaya judgment, the leading to an automatic conclusion of guilt based on evidence such as ByLock use, Bank Asya, and union/association membership had been criticized. In the Yasak judgment, a conviction established not focused on ByLock, but rather on witness testimonies, allegations regarding the educational structure, HTS, and financial/social records was examined. The Grand Chamber stated that even if the variety of evidence is greater, the fundamental problem does not change: conviction cannot be established without all elements of the crime being set out in an individualized manner.
The strongest aspect of the judgment in terms of legal practice is the emphasis it places on the “time element.” The ECtHR finds that the local courts transformed some of the applicant’s activities into grounds for retroactive punishment based on this structure later being designated as a terrorist organization. Whereas, what is decisive in terms of criminal law is what the person knew at the time they carried out the alleged activities, with what intent they acted, which nature of the organization they were aware of, and despite this, what concrete contribution they offered. The Court emphasized that a past role in the educational field does not, on its own, demonstrate that the applicant established a personal, functional, or hierarchical connection with the alleged ultimate aim of this structure.
This finding is directly important for a large number of case files in Türkiye. Because in many conviction decisions, the person’s social, professional, religious, educational, or financial contacts before 2013 or before 2016 were made grounds for punishment along with the later designation of the organization. The Yasak judgment shows that this approach generates serious problems with regard to Article 7 of the Convention. A court cannot automatically turn a person’s action at a certain date into a crime through later-emerging political, judicial, or security evaluations. Particularly if the structure existed within society with different appearances and activities for many years, criminal courts must set out individual fault far more meticulously.
Another important aspect of the judgment is its approach to allegations of “educational structure” or “student structure.” The ECtHR noted that the applicant’s role in the educational field was highlighted; however, it stated that their personal, functional, or hierarchical connection with the central or strategic branches of this structure was not demonstrated. This is an extremely powerful sentence in terms of defense. Because merely working in an educational institution, staying in student houses, participating in conversations (sohbet), being referred to as a student supervisor, or establishing contact with some individuals does not ipso facto demonstrate that the person knew of the alleged ultimate aim of this structure and participated in it. The Court has established that criminal responsibility must be founded on a “concrete connection,” “concrete knowledge,” “concrete intent,” and “concrete contribution.”
The ECtHR stated that the local courts did not evaluate the applicant’s mens rea element, but merely listed the evidence and ultimately established a conviction. This finding also contains the fundamental criticism that can be directed at a significant portion of reasoned judgments in Türkiye: a reasoned judgment cannot consist solely of a list of evidence. The court is obliged to explain how each piece of evidence proves which element of the crime. Especially in a crime as serious and with such devastating consequences as membership in an armed terrorist organization, it is not sufficient for the court to say “the defendant has intent”; it is obliged to show through which facts, on what dates, with which actions, with what level of knowledge, and within what continuity this intent was formed. Otherwise, the conviction violates the principle of legal certainty and predictability.
The judgment also has importance with regard to Article 3 of the Convention. The ECtHR evaluated the applicant’s conditions in Çorum Prison as a whole and reached the conclusion that the cumulative effect of elements such as overcrowded wards, insufficient toilet/shower facilities, sleeping on the floor, artificial light, and deterioration of sleep quality due to noise exceeded the threshold of degrading treatment. Particularly, the principle of “one prisoner, one bed” was emphasized; the overcapacity in the prison and the long-term negative conditions were taken into account.
Nevertheless, the fact that the judgment regarding Article 3 was rendered by 9 votes to 8 shows that there is a serious difference of opinion within the Court on this topic. Some judges did not join the conclusion of violation, taking into account that the personal space did not always fall below 3 m². However, the majority looked not only at the square meter calculation, but at the cumulative effect of the conditions, the sleep pattern, the hygiene facilities, the general overcrowding in the prison, and the length of the duration. This approach shows that in applications to be made regarding prison conditions, not only the area per person but the holistic effect of the living conditions must be documented.
Regarding compensation, the ECtHR did not award separate non-pecuniary damages for the Article 7 violation; it stated that the finding of a violation constituted sufficient just satisfaction in regard to this topic. However, the Court emphasized that the applicant could request a reopening of proceedings in domestic law under CMK 311/1-f and that this is the most appropriate way regarding the redress of the Article 7 violation. This point is very important for practice. Because the genuine outcome of the judgment is not merely a symbolic finding of violation; it is the necessity of opening the path for a retrial in domestic law and re-evaluating the conviction according to the criteria set out by the ECtHR.
Due to the Article 3 violation, the ECtHR decided that the applicant be paid 2,800 Euros in non-pecuniary damages, and also 9,050 Euros for legal costs and expenses. Pecuniary damages and other claims were rejected.
In conclusion, the Yasak/Türkiye judgment sets out the following fundamental principle clearly and powerfully for the case files conducted in the aftermath of July 15: criminal proceedings cannot be founded upon collective assumptions, retroactive designations, abstract organizational narratives, and chains of connection. For conviction, the individual’s personal fault, criminal intent, knowledge of the organization’s violent aims, and knowing/willing participation in this must be made concrete. A conviction rendered without this violates the principles of legality, predictability, and individual fault in Article 7 of the Convention.
General and Personal Evaluation
The judgment of the Grand Chamber of the ECtHR dated 5 May 2026, Yasak/Türkiye, is an extremely important turning point in terms of the criminal proceedings conducted in the aftermath of July 15. The Court has determined that in the applicant’s conviction for membership in an armed terrorist organization, the most fundamental principle of criminal law was violated: A person cannot be punished without their personal fault and criminal intent being concretely established.
At the center of this judgment lies mens rea, that is, the mental element of the crime. According to the ECtHR, the local courts stated that the applicant assumed some roles within the educational structure in the past, that their name was mentioned in some witness testimonies, and that evidence such as HTS and Bank Asya existed; but they did not set out how this evidence proved that the applicant knew of the violent aims of the organization, participated in these aims knowingly and willingly, and maintained their will of membership.
The Grand Chamber’s message is clear: A person cannot be convicted solely on the basis of their past contacts, social environment, educational activities, the abstract narratives of witnesses, or later-made general organizational evaluations. Criminal responsibility must be based not on collective assumptions, but on individual and concrete fault.
The judgment is particularly important regarding the time element. The ECtHR emphasized that what the person knew during the period they carried out the alleged activities, with what intent they acted, and whether or not they were aware of the violent nature of the organization must be examined separately and meticulously. The later designation of a terrorist organization cannot automatically turn every past contact or activity into a crime.
For this reason, the Yasak judgment is in the nature of a continuation of the Yalçınkaya judgment; but it touches upon a broader area. Because here, the issue is not merely ByLock or a specific digital piece of evidence. The ECtHR has said that even if different evidence such as witness testimonies, allegations regarding the educational structure, HTS, Bank Asya, and social security records are present together, the conviction must still set out the mental element of the crime in an individualized manner.
Another aspect of the judgment is the prison conditions. The ECtHR, evaluating together the excessive overcrowding, sleeping on the floor, insufficient hygiene facilities, noise, and sleep conditions in Çorum Prison, decided that Article 3 of the Convention had also been violated.
In conclusion, the Yasak/Türkiye judgment reminds us once again of this powerful legal principle for many case files in Türkiye: In criminal proceedings, the crime is proved through the person; not through environment, relationship, past contact, or general acceptances. For conviction, it is not enough merely to count evidence; how each piece of evidence proves the material and mental element of the crime must be clearly shown. This judgment is not just a violation decision for the defense; it is at the same time a very powerful Grand Chamber precedent that can be used in requests for the reopening of proceedings, regarding the lack of individualized evaluation, in mens rea discussions, and against unreasoned conviction decisions.
