Prof Dr Ireneusz C. Kamiński
Ireneusz C. Kamiński is a law and sociology graduate who studied in Katowice, Cracow and Brussels. Professor at the Institute of Law Studies, Polish Academy of Sciences in Warsaw (Chair of International Public Law); he also lectures at Jagiellonian University in Cracow. He received several awards for his research achievements. Author of eight books and more than 200 academic publications. Specialises in international public law and human rights law. In 2014-2016 he was an ad hoc judge at the European Court of Human Rights in Strasbourg.
Summary
Following the coup d’état attempt of 15 July 2016 in Turkey, the government resorted to numerous measures directed against alleged members of the “Fetullahist Terror Organisation/Parallel State Structure” (“the FETÖ/PDY”). After exhausting domestic remedies, those affected began lodging applications with the European Court of Human Rights (“the Court”). On 26 September 2023, the Grand Chamber of the Court rendered its judgment in Yüksel Yalçınkaya v. Turkey. The Court found violations of the no punishment without law principle (Article 7), the right to a fair trial (Article 6), and the freedom of association (Article 11). The applicant was convicted without establishing the offence’s constituent material and mental elements individually, following an expansive and unforeseeable judicial interpretation of Article 314 § 2 of the Criminal Code. Furthermore, non-disclosure to the defence of data obtained from an encrypted messaging application server was not counterbalanced by adequate procedural safeguards ensuring overall fairness of proceedings. The domestic courts also failed to provide reasons for the non-disclosure of raw data and address core issues relating to the integrity and evidential value of the data the prosecution relied on.
Background
Following the coup d’état attempt of 15 July 2016 in Turkey, the government implemented extensive measures against individuals suspected of being affiliated with the “Fetullahist Terror Organisation/Parallel State Structure” (FETÖ/PDY). These measures were part of a broader strategy to dismantle the alleged network and prevent further threats to national security. Central to this strategy were the principles of nullum crimen sine lege (no crime without law) and nulla poena sine lege (no punishment without law).
One of the key issues in the Yalçınkaya case was the conviction for membership in an armed terrorist organisation, which was based decisively on the use of the encrypted messaging application ByLock. This conviction was made without duly establishing the offence's constituent material and mental elements in an individualized manner. The judicial interpretation applied by the domestic courts was expansive and unforeseeable, inconsistent with the essence of the impugned offence, which required specific intent. Consequently, the domestic courts attached criminal liability in an almost automatic manner to ByLock users.
Furthermore, the defence faced significant prejudice due to the non-disclosure of raw data obtained from the encrypted messaging application server. This non-disclosure was not counterbalanced by adequate procedural safeguards to ensure the overall fairness of the proceedings. The defence's inability to directly access the evidence and test its integrity and reliability placed a greater onus on the domestic courts to scrutinize these issues thoroughly.
The domestic courts failed to provide reasons for the non-disclosure of the raw data and did not address core issues related to the integrity and evidential value of the ByLock data. Additionally, the domestic courts unforeseeably extended the scope of the offence by relying on the applicant's membership in a trade union and an association considered affiliated with FETÖ/PDY to corroborate the conviction. This interpretation further highlighted the problematic nature of the judicial proceedings in this case.
Key Consideration
The coup d’état attempt led the Turkish government to implement numerous legal and political measures against alleged members of FETÖ/PDY. Legislative Decree no. 672 resulted in the dismissal of around 50,875 civil servants, while Legislative Decree no. 667 led to the closure of numerous organizations associated with FETÖ/PDY.
In the case of Yüksel Yalçınkaya v. Turkey, the Grand Chamber of the European Court of Human Rights highlighted the implications for Turkey's legal system post-coup. The applicant, a public school teacher, was convicted of membership in FETÖ/PDY and sentenced to over six years in prison. The courts determined that Mr Yalçınkaya had used ByLock, an encrypted messaging app, to communicate with FETÖ/PDY members. Turkish authorities viewed ByLock as mainly used by FETÖ/PDY cells for encrypted communications, with installation alone deemed sufficient proof of membership. Mr Yalçınkaya’s case was further supported by his Bank Asya account and membership in organizations linked to FETÖ/PDY.
The Strasbourg Court found three violations of the European Convention on Human Rights: the principle of no punishment without law (Article 7), the right to a fair trial (Article 6), and the freedom of association (Article 11).
Article 7
The Court reiterated that interpreting and applying domestic law is primarily the task of national jurisdictions, not the Strasbourg Court. However, even clearly drafted legal provisions require judicial interpretation to clarify doubtful points and adapt the law to changing circumstances. Article 7 of the Convention does not prohibit the gradual clarification of criminal liability rules through judicial interpretation, provided it remains consistent with the offence's essence and reasonably foreseeable. An accessible and foreseeable judicial interpretation is crucial, ensuring personal liability for offenders. Article 7, an essential rule of law element, holds a prominent place in the Convention’s protection system.
Mr Yalçınkaya was convicted under Article 314 § 2 of the Criminal Code for membership in an armed terrorist organisation. The Court found this provision sufficiently precise, enabling individuals to understand their criminal liability. The case's focus was on whether Mr Yalçınkaya’s conviction was foreseeable under domestic law, particularly regarding the offence's material and mental elements. The domestic courts’ assumption that using ByLock alone sufficed for conviction, corroborated by his Bank Asya account and organizational memberships, did not individually prove FETÖ/PDY membership. The courts equated ByLock use with knowingly joining an armed terrorist organisation, disregarding the offence's special intention requirement, thereby violating Article 7.
Article 6 § 1
Mr Yalçınkaya’s allegations under Article 6 § 1 included the unlawful acquisition of ByLock data, its unavailability for examination, and the domestic courts’ reliance on prosecution assessments without independent verification. He also criticized the courts’ arbitrary evidence assessment and inadequate reasoning. These claims, distinct from Article 7 allegations, highlighted fair trial concerns.
The Court emphasized its limited role in reviewing national court errors, focusing on overall fairness and the opportunity to challenge evidence. A fair trial requires adversarial proceedings and equality of arms, allowing both prosecution and defence to know and comment on each other's evidence. Evidence disclosure is not absolute but must balance competing interests with defence rights. The Court found that the domestic courts did not justify the non-disclosure of ByLock data, depriving Mr Yalçınkaya of the chance to counter the prosecution’s evidence. The court’s exclusive reliance on ByLock’s technical features and lack of incriminating content or hierarchical links failed to ensure a fair trial, violating Article 6.
Article 11
Mr. Yalçınkaya argued that his conviction, based on membership in lawfully established organizations later dissolved by Legislative Decree no. 667, violated Article 11. Freedom of association, subject to lawful limitations, must pursue legitimate aims and be necessary in a democratic society.
The Court noted that the organizations were lawfully operating before their dissolution for alleged FETÖ/PDY affiliation. The trial court did not explain the organizations’ actions leading to their dissolution, instead relying on their shutdown as proof of criminal conduct. This extended Article 314’s scope unforeseeably, implicating lawful memberships as criminal, thus violating Article 11.
Recommendations
The Grand Chamber judgment in Yüksel Yalçınkaya v. Turkey, final upon enactment, significantly impacts Turkey’s legal system. Over 8,000 similar cases are pending before the Court, with more than 100,000 within Turkey. The judgment affects approximately 2 million individuals, highlighting systemic inconsistencies with Convention standards. Implementing the judgment nationally requires changes in judicial practice rather than legislative amendments. The Court suggested reopening criminal proceedings under Article 311 § 1 (f) of the Code of Criminal Procedure as a remedy for the violations found.
National courts should cease equating ByLock use with FETÖ/PDY membership under Article 314 § 2 of the Criminal Code. Establishing all offence elements individually is necessary to meet Article 7 standards. This requires overruling the jurisprudence following the 2017 Court of Cassation judgments, deemed expansive and unforeseeable by the Strasbourg Court. Fair trial requirements under Article 6 necessitate allowing the accused to challenge and oppose evidence use, ensuring adversarial proceedings and equality of arms. Any non-disclosure prejudice must be counterbalanced by procedural safeguards, with domestic courts providing reasons for non-disclosure and addressing reliability concerns of ByLock evidence.
Domestic courts must avoid assuming lawful organization membership indicates criminal conduct post-dissolution. They must respect the right to an adversarial trial, allowing defence arguments and evidence examination. The reopening of proceedings should be considered for similar cases, providing appropriate redress.
The Grand Chamber judgement rendered in Yüksel Yalçınkaya v. Turkey, which became final on the day of its enactment, is of huge importance for and impact on Turkey and its legal system. At the moment, over 8,000 cases of the kind of that of Mr. Yalçınkaya are pending before the Court and more than 100,000 within Turkey. The Yalçınkaya judgment is poised to affect approximately 2 million individuals, demonstrating a widespread and systemic inconsistency with the Convention's human rights standards. Its enactment invites a number of changes in law practice in Turkey.
It must be stressed that the roots of the violations found by the Court do not reside in the relevant legislation itself but stem from the defective law application process by domestic courts. Accordingly, the implementation of the judgment nationally does not require the adoption of amendments to laws by the Turkish parliament. Merely, changes in judicial practice are needed. That is what the Court pointed out in its considerations under Article 46 of the Convention (judgment execution) Below, it is shortly clarified how such changes may look like.
1. National courts should cease to automatically hold that the mere use of ByLock application suffices as evidence, for the reasons of proceedings conducted under Article 314 § 2 of the Turkish Criminal Code, that a given individual was a member of the FETÖ/PDY terrorist network. To meet the Convention standards under Article 7, it is necessary to duly establish the presence of all constituent elements of that offence in an individualised manner. It would require overruling of the line of jurisprudence that emerged following the judgments of the Court of Cassation adopted in 2017. This line of jurisprudence has been impugned by the Strasbourg Court as being expansive and unforeseeable since it transformed the offence under Article 314 § 2 of the Turkish Criminal Code, which necessitated the presence of special intention on the part of the perpetrator (as a mental constituent element of the offence), into an offence of strict liability.
2. To meet the requirements of a fair trial stemming from Article 6 of the Convention, national courts must give the accused the opportunity to challenge the evidence and oppose its use in circumstances where the principles of adversarial proceedings and equality of arms between the prosecution and the defence fully are respected. Any prejudice sustained by the accused on account of the non-disclosure to him of the relevant ByLock data should be counterbalanced by adequate procedural safeguards and the accused should be given a proper opportunity to prepare his defence. Furthermore, the reasons advanced to justify the non-disclosure of the relevant data to the accused must be analysed by domestic courts and adverted to in their judgments. The accused’s arguments point to his concerns regarding the reliability of the ByLock evidence must be addressed by domestic courts. But first and foremost, domestic courts must not repeat “the exclusivity argument”, which boils down to the simple assumption that the technical features of the ByLock application suffice to consider it proven that the application was used for “organisational use” within an illegal network, especially when the application could be freely and broadly downloaded.
3. Domestic courts must not limit their reasoning to the sheer fact that membership in an organization, which operated legally, but was subsequently shut down by the authorities, is indicative of the criminal conduct of the individual in question.
4. Under Article 46 of the Convention (judgment execution), the Court pointed out that the reopening of the criminal proceedings (under Article 311 § 1 (f) of the Code of Criminal Procedure), if requested by Mr Yalçınkaya, would be the most appropriate way of putting an end to the violations found in the judgment and of affording redress to the applicant. This legal mechanism should be considered as applicable, if domestic law permitting, to other similar cases in which a final decision has been already rendered.
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