Interview with Mr Hakan Kaplankaya on the importance of the ECtHR judgement in YÜKSEL YALÇINKAYA v TÜRKİYE

ECHR courtroom - Copyright AP Photo Euronews.com

By Maria Popova

I had an interview with Mr Hakan Kaplankaya. Together, we discussed the ECtHR decision Yuksel Yalcinkaya vs Turkey.

Hakan Kaplankaya is a legal advisor and former Turkish diplomat. His research and consultancy services focus mainly on human rights advocacy and international commercial arbitration. During his tenure at the Ministry, he worked at the NATO Desk. He is also a board member of InstiduDE, Belgium’s research-driven NGO.

  1. Mr Kaplankaya, can you elaborate for us what the judgement is about and its importance?

The Turkish government launched a crackdown on the Gulen Movement (GM), especially after the graft probes in December 2013, which escalated to an annihilation campaign after the failed coup on July 15, 2016. GM was designated as a terrorist organisation, which paved the way to widespread criminal prosecutions for membership in a terrorist group against members, followers, and sympathisers of the movement. Within criminal proceedings, routine activities were treated as evidence of terrorist organisation membership, such as subscribing to a daily, enrolling children in GM-affiliated schools, depositing money in Bankasya, using the Bylock mobile chat application, joining GM-related associations, and participating in religious talks.

Over 600,000 people were prosecuted, with more than 300,000 detained and over 100,000 convicted on terrorism charges. The ECtHR’s judgment is a long-awaited response to this travesty of justice.

Another notable aspect of these persecutions and the judgment is that this judicial practice has risen to crimes against humanity. As fellows of the Institute for Diplomacy and Economy, we drafted a report on this issue two years ago. In various opinions, the UN Working Group on Arbitrary Detention (WGAD) has concluded that the arbitrary detentions faced by numerous Turkish individuals linked to this group since the coup attempt follow a systematic and widespread pattern, possibly amounting to crimes against humanity. The international community should give due consideration and examination to this dimension.

  1. The Grand Chamber judgment in the case highlighted violations of Article 7 (no punishment without law) and Article 6 § 1 (right to a fair trial) of the ECHR. Could you explain how the Court found that the applicant’s conviction, based on the use of the ByLock application, departed from the requirements of national law and was contrary to the object and purpose of Article 7, which aims to provide safeguards against arbitrary prosecution, conviction, and punishment?

The Court observed that the applicant’s conviction for membership in a terrorist organisation was primarily based on his alleged use of the ByLock messaging application, while other evidence, such as his account at Bank Asya and his membership in a trade union and an association, served as corroborative sources. The mere use of the ByLock application, regardless of the content of the messages or the recipients’ identities, was deemed sufficient in domestic law to establish all the elements of the crime of belonging to an armed terrorist organisation.

Interview with Mr Hakan Kaplankaya on the importance of the ECtHR judgement in YÜKSEL YALÇINKAYA v TÜRKİYE App no 15669/20 (ECtHR, 26 September 2023)

The Court acknowledged that the use of the ByLock application could indicate some connection with the Gülen Group but disagreed with the domestic courts’ conclusion, which was merely downloading and using the application pointed out the complete submission to the organisation and its hierarchy. Instead, the Court found that relying on the mere use of ByLock alone to establish the elements of the offence was an unforeseeable and expansive interpretation of anti-terror legislation. This interpretation essentially created an almost automatic presumption of guilt based solely on ByLock usage, making it extremely difficult for the applicant to prove his innocence.

Without examining the presence of ‘knowledge’ and ‘intent,’ which are requirements in the legal definition of the offence under domestic law, the Court observed that objective liability was effectively attached to the use of ByLock. This interpretation by the domestic courts effectively bypassed the essential, particularly mental, element of the offence and treated it as a strict liability offence, thus deviating from the established requirements in domestic law. Consequently, the Court ruled that there had been a violation of Article 7 of the Convention.

  1. The judgment identifies procedural shortcomings in the criminal proceedings against Mr Yalçınkaya, particularly regarding his access to and ability to effectively challenge the ByLock evidence, breaching his right to a fair trial under Article 6. Can you elaborate on the specific failures in the courts’ handling of the ByLock evidence and how these shortcomings undermined the applicant’s opportunity to challenge the proof effectively, as outlined by the Court?

Regarding Article 6 § 1 of the Convention, the Court examined whether the applicant, who faced non-disclosure of crucial ByLock data, was given adequate procedural safeguards and whether the applicant was afforded a suitable opportunity to prepare his defence.

The Court criticised the silence of domestic courts concerning their rejection of the applicant’s request for Bylock raw data, as well as the applicant’s substantiated concerns about the reliability of the evidence. The refusal of the applicant’s request to independently examine the raw data to verify its content and integrity was also noted. The Court emphasized that proceedings should have allowed the applicant to fully comment on the decrypted material, ensuring a “fair balance” between the parties.

In conclusion, the Court found insufficient safeguards for the applicant to challenge the evidence effectively and on equal footing with the prosecution. The failure of domestic courts to address the applicant’s requests and objections raised doubts that they were impervious to the defence arguments. The Court ruled that the applicant was not genuinely ‘heard,’ concluding that the criminal proceedings fell short of a fair trial, breaching Article 6 § 1 of the Convention.

  1. The Court held that Türkiye must take general measures to address systemic problems, particularly concerning the Turkish judiciary’s approach to using ByLock. As a legal expert, what specific measures do you believe would be necessary to rectify the identified systemic problems and ensure that future cases involving digital evidence, like ByLock, comply with the requirements of the ECHR, particularly in safeguarding individuals against arbitrary consequences and upholding the principles of a fair trial?

The Court highlighted the systemic nature of the issue, with over 8,000 similar cases and the potential for around one hundred thousand more cases from Turkey to reach the European Court. To address this, Turkey needs to implement general measures for resolution. Although the anti-terror legislation has faced criticism for its broad interpretative potential, mainly from scholars, the Venice Commission, and some European Court judgments, I believe the core problem lies in the arbitrary interpretation by the Turkish judiciary rather than the legislation’s wording. Despite Yalçınkaya reflecting the Court’s stance on this interpretation, there is still room for legislative amendment. However, the most immediate solution would be a jurisprudential change, with the Turkish judiciary aligning itself with the Yalçınkaya judgment, refraining from incriminating people for ordinary, non-criminal activities. Unfortunately, four months after the release of this judgment, Turkish courts have not given a clear signal that they have aligned with it.

Reopening cases in Turkey that have already been presented to the European Court could present a viable solution. Although Turkish criminal procedure permits the reopening of a case if the European Court identifies a violation, this right is currently not extended to similar cases. Nevertheless, a recent ruling by the Turkish Constitutional Court lends support to this potential solution. Consequently, a legal amendment would be beneficial to address and clarify this issue explicitly. Unfortunately, I am unaware of any instance where a domestic court has approved reopening a case similar to Yalcinkaya.

Following the Yalcinkaya case, individuals convicted of terrorism charges based on their alleged membership in the GM should be acquitted. The Bylock evidence, riddled with numerous shortcomings, was examined by the Strasbourg Court, which criticised the Turkish court’s flawed examination without explicitly affirming its evidentiary value. However, given the significant deficiencies in the Bylock evidence, it becomes untenable for any impartial court to accept it as credible. Moreover, the Court identified a more substantial issue, emphasising a violation of Article 7. Thus, the result should be an acquittal.

Bas du formulaire

Interview with Mr Hakan Kaplankaya ECtHR YÜKSEL YALÇINKAYA v TÜRKİYE By Maria Popova
  1. Given the historical significance outlined in the Yalçınkaya judgment and its impact on Article 7 violations, can you elaborate on the specific legal principles related to the “legality of crimes and punishments” that make an Article 7 violation so severe and why the ECHR has been cautious in finding such violations for its member states over the years?”

The “No punishment without law” principle is a fundamental legal tenet. In societies governed by the rule of law, the violation of this principle is not encountered. The recent judgment marks the sixtieth violation ruling by the Court in its history. The incrimination of hundreds of thousands of people in contravention of this principle is profoundly shocking. Witnessing such a grave systemic violation is, in my view, a source of shame for all Europeans.

  1. The Yalçınkaya decision highlights a systemic issue with over 8,000 pending cases of a similar nature and suggests the potential for over 100,000 more cases based on ByLock usage. How do you think non-compliance with the Yalçınkaya decision could impact Turkey’s judicial system and its international standing, and what steps should the authorities, particularly the Constitutional Court, take to address this issue promptly?

As stated in the judgment, it is binding on the Turkish judiciary. Therefore, the Turkish Constitutional Court and other superior courts should align with it. Failure to do so may result in the European Court issuing violation judgments for similar cases and potential future applications. The Committee of Ministers of the Council of Europe will monitor the execution of the judgment, involving a political and diplomatic process. Significantly, according to the Turkish Constitution, the decisions of the European Court are binding, and I hope that they will eventually be implemented in Turkey by Turkish authorities.

Teacher Yüksel Yalçınkaya v. Türkiye

ECHR courtroom - Copyright AP Photo Euronews.com

By Maria Popova

In a significant judgement on the 26th of September, the Grand Chamber of the European Court of Human Rights held that Türkiye has to address a systematic problem of terrorism convictions decisively based on using a messaging application by the accused. The Court held that there had been a violation of Article 7 ECHR (no punishment without law), Article 6(1) ECHR (right to a fair trial) and Article 11 (freedom of assembly and association).

Facts of the case

The case had to deal with the conviction of a former teacher, Yüksel Yalçınkaya, who was assumed to have participated in an armed terrorist organisation called the “FETÖ/PDY” formerly known as the “Gülen movement” and considered by the Turkish authorities to be behind the attempted coup d’état of 15 July 2016.

The teacher was arrested in 2016 on suspicion of membership in a terrorist organisation. He was put in pre-trial detention and received his bill of indictment in 2017. According to the authorities, the accusation and the following arrest were based on the following evidence: suspicious banking activity, membership of a trade union, which allegedly had a terrorist link and the use of a mobile application called ByLock, which had reportedly been used for communication purposes by the members of the terrorist organisation.

Following his trial, Mr. Yalçınkaya was sentenced to six years and three months in prison. A decision later upheld by the Court of Appeal in Ankara and the Cassation Court. The decisive evidence in the case was using the mobile application, which was considered exclusively employed by the “FETÖ/PDY”. The Bank Asya account and the participation in the trade union served as supportive evidence due to their affiliation with the terrorist organisation.

Applicant’s submission before the Court of Human Rights

Following his conviction, Mr Yalçınkaya lodged an application with the European Court of Human Rights in 2020 due to alleged violations of his rights under the European Convention on Human Rights.

He relied on Article 6(1) ECHR, which stipulates the right to a fair trial. According to the applicant, there were irregularities regarding the collection and the admissibility of the evidence regarding the ByLock application. Furthermore, according to the applicant, there were difficulties in challenging said evidence, which is an essential procedure constituting a fair trial.

Mr Yalçınkaya also alleged a violation of Article 7 (stipulating that there shouldn’t be a punishment if the act or the omission were not categorised as a crime at the time of committing) and 11 ECHR (stipulating the freedom of assembly and association) because his conviction was based on acts which did not constitute a crime under Turkish law—mainly, the participation in a trade union and the possession of a bank account.

Government’s submission

The Turkish Government argued that a state of emergency justified all measures taken following an attempted military coup. Therefore, according to its representatives, Türkiye has not violated any applicant’s rights under the ECHR. The Government used in its defence article 15 ECHR, which stipulates that in the case of any nation-threatening emergency, the country might derogate from its obligations under the Convention.

Judgement of the Court

Regarding the defence put forward by the Turkish Government regarding Article 15 ECHR, the Court of Human Rights has decided that Article 15 does not allow for a derogation from Article 7 ECHR. Therefore, it will be considered only about the other articles mentioned in the case.

Regarding the violation of Article 7 ECHR, the Court established that it prescribes that only an existing legal provision can define a criminal act and lay out a penalty. Such a law should not be enacted to the detriment of the accused. The Court agreed that article 314(2) of the Turkish Criminal Code and the provisions of the Prevention of Terrorism Act, which constitute the legal framework under which Mr Yalçınkaya was convicted in Türkiye are clear and well-defined enough for the applicant to understand whether he has committed a criminal offence.

Under Turkish legislation, for the convicted to be liable for participation in a terrorist organisation, there has to be proof of his specific knowledge and intent to be a member of the terrorist group. For example, there had to be an “organic link” with the organisation; that link should be continuous, and they must be well aware that the group’s activities are illegal and the person must possess a specific intent to further such unlawful activities. There should also be proof that the accused willingly participated in the organisation’s hierarchical structure. It is not enough that the law was well defined. The law had to be applied precisely, following all of its requirements regarding a conviction. Something the Turkish authorities failed to do.

The ECtHR held that the Turkish authorities failed to prove every requirement of the law but instead automatically presumed that Mr Yalçınkaya was a member of the “FETÖ/PDY” solely because he was using the app ByLock. That assumption was made irrespective of the nature of his messages or the receivers of his messages. The applicant had no opportunity to defend himself nor challenge such presumptions and allegations. Therefore, his rights under Article 7 ECHR were violated as the article aims to ensure safeguards against arbitrary convictions.

The Court also sided with the applicant regarding the violation of Article 6 ECHR, or the right to a fair trial. The Court held that for Article 6 to be ensured correctly, evidence in a problem had to be collected fairly and legally, and the accused should be able to challenge and review the evidence against him. Those are some of the factors required for a fair trial to be ensured.

In this case, the Turkish courts had failed to ensure the safeguards prescribed by Article 6(1) ECHR. Firstly, there was no valid reason why the ByLock data was kept from the applicant, nor why the applicant was not allowed to comment on the evidence against him, which would have also allowed him to challenge its validity. The Courts have also denied the applicants’ request that the ByLock data be submitted to an independent examination to ensure its validity. The disregard for such safeguards constitutes a violation of Article 6 ECHR.

Regarding Article 11 ECHR, the Court held that the applicant’s conviction of membership in a terrorist organisation based on his participation in a trade union constitutes a violation of his rights. The mere participation in a trade union that has operated lawfully before the coup cannot be foreseen as an indication of criminal conduct.

According to the court

There are currently approximately 8,500 applications on the Court’s docket involving similar complaints under Articles 7 and 6 of the Convention, and given that the authorities had identified around 100,000 ByLock users, many more might potentially be lodged. The problems which had led to findings of violations were systemic. Under Article 46 (binding force and implementation of judgments), the Court held that Türkiye had to take general measures appropriate to address those systemic problems, notably regarding the Turkish judiciary’s approach to Bylock evidence.

Following the decision

The Court’s judgement received criticism from the Turkish Minister of Justice Yılmaz Tunç, who described it as unacceptable due to the ECtHR “overstepping its jurisdiction” by examining the credibility or lack of evidence used in the national trial. On the contrary, the applicant’s lawyer, Johan Heymans, characterised the judgement as a “milestone” and stated his belief that the decision of the Court would set an important precedent for similar Turkish cases.

Sources:
YÜKSEL YALÇINKAYA v TÜRKİYE App no 15669/20 (ECtHR, 26 September 2023)

European Court of Human Rights, ‘Türkiye must address systemic problem of convictions for terrorism offences based decisively on accused’s use of the ByLock messaging application’ (Press Release issued by the Registrar of the Court, 26.09.2023) accessed 17 September 2023

<https://hudoc.echr.coe.int/app/conversion/pdf/?library=ECHR&id=003-7756172-10739780&filename=Grand%20Chamber%20judgment%20Y%C3%BCksel%20Yal%C3%A7inkaya%20v.%20T%C3%BCrkiye%20-%20systemic%20problem%20of%20convictions%20for%20terrorism%20offences%20based%20on%20use%20of%20ByLock%20messaging%20application.pdf

‘Conviction based on app use violated Turkish teacher’s rights, European court rules’ (Euronews, 26 September 2023) <https://www.euronews.com/2023/09/26/conviction-based-on-app-use-violated-turkish-teachers-rights-european-court-rules> accessed 17 September 2023