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.
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.
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
‘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