A Turkish jihadist, convicted twice on terrorism charges because he planned to join the Islamic State in Iraq and Syria (ISIS) and who disseminated propaganda on behalf of the terrorist organization on social media and communicated with ISIS members, was let go by Turkey's highest appellate court.
The jihadist, whose identity was kept secret by the Supreme Court of Appeals (Yargıtay), was convicted by Istanbul 13th High Criminal Court in 2018 on terrorism charges and sentenced to time in prison. The evidence collected during the investigation showed that he was actively involved with known ISIS members, exchanged communications with them and inquired about how to join ISIS in Syria.
A review of his social media accounts revealed that he was promoting ISIS on the internet and supporting ISIS leaders. The Supreme Court of Appeals' Third Chamber, which reviews terrorism cases, overturned the conviction in 2021, citing procedural irregularities during the trial. It did not review the case on the merits.
The jihadist was retried by the lower court and convicted again. Upon appeal for the second conviction, the supreme court ruled on October 3, 2022 to acquit the jihadist, saying the lower court's decision was wrong. This time, the court set a precedent by reviewing the case on its substance and ruled that disseminating propaganda on behalf of a terrorist organization and investigating ways to travel to Syria to join ISIS cannot be considered a terrorist offense.
The court said that "sharing pictures praising the Daesh Terrorist Organization as well as posters symbolizing the organization and photos of militants of the organization" merely shows the person sympathizes with ISIS and does not mean that the person is organically connected to the ISIS organization's structure, also known by the Arabic acronym Daesh. It did not consider the jihadist's communications with ISIS members and inquiries about joining the group in Syria to be sufficient evidence to convict him.
The ruling sets a dangerous precedent in Turkey in which spreading propaganda on behalf of a terrorist organization, making contact with known ISIS terrorists and planning to join the group in a neighboring country are no longer considered criminal offenses.
The Turkish penal code criminalizes "disseminating the propaganda of or promoting a terrorist organization" in Counterterrorism Law No. 371. The article was often invoked in Turkey to suppress critical voices and dissident views that do not actually incite violence and was abused by the government-controlled judiciary to punish journalists who have nothing to do with terrorism or violence.
In a strange twist, the same article was often overlooked in ISIS cases, where the prosecutors and judges are quietly ordered by the government to go easy on suspects even when they endorse terrorism and incite violence.
The Third Chamber's overturning of the jihadist's conviction twice does not come as a surprise given the track record of the judges in the chamber. A survey of cases in recent years shows that those judges have ruled in many ISIS cases to overturn convictions and order the release of jihadist militants.
As a result, the bulk of successful ISIS convictions, already rare in the lower courts, have been thrown out by senior judges who appear to follow the lenient guidelines of the Islamist government when it comes to cracking down on jihadist groups.
The chamber, previously designated as the 16th, was created in 2014 with a special bill endorsed by the government of President Recep Tayyip Erdoğan to transform the country's top appeals court. In a bizarre change, the new chamber was mandated to look at all terrorism cases, which had been reviewed by the 9th Chamber for decades. The government recruited 140 new judges in 2014 and another 100 in 2018 to dominate the appeals court. The judges who were named to the chamber were carefully vetted by the Erdoğan government, and the bench was filled with loyalists.
Turkish officials do not disclose the number of successful convictions in ISIS cases or how many convictions were in fact upheld on appeal. They 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 instances result in acquittal and release.
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 and al-Qaeda groups there. Turkish intelligence agency MIT has facilitated their travel. Turkish authorities knew and monitored human smugglers who helped jihadists travel in and out of Syria through the Turkish border but often overlooked their activities.
Abdullah Bozkurt, a Middle East Forum Writing Fellow, is a Swedish-based investigative journalist and analyst who runs the Nordic Research and Monitoring Network and is chairman of the Stockholm Center for Freedom.