Yüksel Yalçınkaya v. Türkiye: Systemic Violations of the Nullum Crimen Principle by a Founding Member of the CoE

[Hakan Kaplankaya is a former Turkish diplomat, lawyer and instituDE member.]

The European Court of Human Rights (ECtHR) delivered a historic judgment on September 26, 2023, in the case of Yalçınkaya v. Türkiye, which addressed the conviction of an ordinary teacher on charges of “membership in a terrorist organization” held for his connection to the Gülen Group. This landmark ruling, constituting the 60^th violation of Article 7 in the Court’s history, has far-reaching implications for hundreds of thousands of victims in Turkey.

The Turkish government attributed the orchestration of the coup attempt that took place on the night of July 15, 2016 to the Gülen Group. In the aftermath, 2,745 prosecutors and judges were arrested within hours, with complete disregard for the security of their tenures. The ECtHR subsequently ruled that their detention was unlawful. Owing to the judiciary purge, the government was able to detain individuals suspected of being members of the Gülen Group on bogus terrorism charges.

In the process of criminalizing lawful social-religious activities associated with the Gülen Group, the courts have astonishingly deemed routine legal activities as conclusive evidence of membership in a “terrorist organization”. Such evidence includes depositing money in Bank Asya (a bank owned by Gülenists that was liquidated after the coup attempt), subscribing to the daily Zaman, enrolling their children in private schools affiliated with the Gülen Group, and organizing or participating in religious conversation circles conducted by the group.

In particular, the mere use of the ByLock application was considered the primary and sufficient evidence for a conviction, with the reasoning that this application was exclusively used by Gülenists for organizational communication needs. Despite serious concerns regarding its lawful collection, reliability and integrity, this evidence was not questioned by the Turkish judiciary.

Within the criminalization of Gülenism in Turkey, 122,632 individuals were convicted on bogus terrorism charges as of July 2023. The victims of this judicial travesty, who lack adequate redress from domestic judicial mechanisms, have been ardently awaiting the European Court’s response to their grievances.

As one of the victims, the applicant, Mr. Yüksel Yalçınkaya, was dismissed from public service through an emergency decree-law on allegations of his links to the Gülen movement, which, according to the government, “performs activities against national security” (For further information regarding the purge, see here). Following his dismissal, he was arrested on charges of being a member of the Gülen Group. The evidence used against him included reports on his use of the ByLock application, his bank account with Bank Asya, memberships in a national teachers’ trade union (Aktif Eğitim-Sen) and in a provincial association of education, which were later closed down by emergency decrees.

Applicant’s Main Complaints

The applicant argued that none of the essential elements required for his conviction on charges of membership in an armed terrorist organization, such as the existence of the impugned organization beyond a reasonable doubt, knowledge of the nature of that organization, the defendant’s actual membership therein, and a specific intent to further its aims were substantiated in his case. He contended that this offense requires a hierarchical structure and its alleged members should have engaged in acts of a certain continuity, diversity, and intensity, none of which were found to be present in his case if examined through the lens of the established domestic case-law.

The applicant asserted that even if his association with the Gülen movement was demonstrated, convicting ordinary members of the organization for alleged illegal activities carried out by some members of the group without establishing their individual intent was a violation of the principle of individual criminal responsibility and amounted to collective punishment. Hence, he claimed that his prosecution and conviction were unforeseeable and in violation of Article 7 of the Convention.

Concerning the violation of the right to a fair trial, the applicant asserted that the ByLock data had been collected unlawfully (e.g. without prior judicial authorization) by the intelligence service in contradiction with the provisions of the criminal procedure. The use of unlawfully obtained evidence is prohibited under domestic law, and therefore, the ByLock data should not be admissible as evidence. The absence of judicial oversight of the collection and processing of ByLock data made it vulnerable to alterations and difficult to verify its authenticity and integrity.

He further argued that the mobile communication records relied on by the domestic courts were unlawful and unreliable, exceeding legal retention period limits. He also contended that he had not been provided with a copy of the ByLock data related to his alleged use of the application, which hindered his ability to challenge the evidence effectively. Hence, his right to adversarial proceedings and equality of arms under Article 6 of the Convention breached, as he was at a substantial disadvantage compared to the prosecution (For further information, see, here).

The applicant also complained that there was a breach of Article 11 of the Convention, as the domestic courts had used his memberships in a lawfully established trade union and association for his conviction, which should have been protected under the scope of this article.

The Court’s Assessment

The Court found that the applicant’s rights under Articles 7, 6 § 1, and 11 of the Convention were violated as a result of his criminal conviction by Turkish courts, which based the applicant’s conviction primarily on his use of a mobile app, as well as his bank account and his membership in two associations (For more in-depth information and analysis, refer to here, here and here).

The Court disagreed with the domestic courts’ assertion that the mere downloading and use of the application might imply the person’s necessary submission to the impugned organization. This “a la turca” judicial reasoning created an almost automatic presumption of guilt based solely on ByLock usage, making it extremely difficult for the applicant to prove his innocence. The Court held that the domestic court’s interpretation of the law was so unforeseeable and expansive that it disregards the essential mental element of the offense.

In regard to the right to a fair trial, the Court criticized 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 evidence’s reliability, and the refusal of the applicant’s request to have the raw data submitted to an independent examination for the verification of its content and integrity. The Court suggests that the applicant should have been enabled to comment on the full extent of the decrypted material concerning him, including, especially, the nature and content of his activity over that application, in accordance with the requirement of a “fair balance” between the parties.

Hence, the Court concluded that there were insufficient safeguards in place to ensure that the applicant had a genuine opportunity to challenge the evidence against him and conduct his defense effectively and on equal footing with the prosecution. The Court further ruled that the domestic courts’ failure to address the applicant’s specific and relevant requests and objections raised a legitimate doubt that they were impervious to the defense arguments, and that the applicant was not genuinely ‘heard’.

Beyond the Case and Some Criticism

The Court analyzed both parties’ arguments on the ByLock evidence but opted not to delve into the merits of the issue of using electronic evidence, particularly evidence obtained through encrypted communication networks, in criminal proceedings. However, the shortcomings of the evidence in terms of its lawfulness and reliability were far beyond suspicion.

The Court decided not to examine the applicant’s complaint that he had not been able to communicate with his lawyer in private due to the restrictions imposed by emergency measures because it had already examined and found a violation regarding the lack of fairness in the criminal proceedings. The Court should have addressed this common practice of the Turkish government, which nullifies the right to judicial assistance and is applied to most of the detained persons facing terrorism charges.

The Court again decided that there is no need to give a separate ruling from the standpoint of Article 8 regarding the applicant’s allegations that the ByLock data in his regard had been collected and used by the intelligence service without a judicial order and in breach of the relevant legal framework, and his internet traffic data had been obtained outside the statutory time-limit, as the main issues raised by the applicant under this article have already been addressed under Article 6 § 1. However, the applicant’s allegations were related to two major but distinct perspectives. I consider that the Court’s refrain from addressing this question is also unfortunate.

Last but not least, the Court decided that the finding of a violation constitutes sufficient just satisfaction for any non-pecuniary damage sustained by the applicant and did not award compensation in this regard. As seven out of seventeen dissenting judges pointed out, an opinion I wholeheartedly agree with, the Court should have awarded the applicant a significant amount of compensation, given the profound impact on his life caused by the wrongful conviction that resulted in his incarceration for nearly four and a half years behind bars.

The more intriguing and remarkable aspect of the judgment is that the Court addressed the potential implementation of the judgment and its implications for similar cases. The Court acknowledged the systemic nature of the issue and emphasized that there are approximately 8,000 similar cases already on its docket, with a potential for up to 100,000 additional cases that may come before it. In doing so, the Court preemptively responded to the initial reaction of the Turkish Justice Minister, who claimed that the case only applies to the applicant and does not set a precedent for others.

The significant number of these victimizations should prompt us to consider whether the persecution endured by (perceived or real) members of the Gülen Group could be categorized as ongoing crimes against humanity. In this context, the UN Working Group on Arbitrary Detention (WGAD) has previously determined, in various opinions, that the arbitrary detentions faced by numerous Turkish individuals due to their affiliation with this group since the coup attempt follow a systematic and widespread pattern, potentially constituting crimes against humanity.

The ECtHR has indeed already ruled that the detention of over 800 former members of the judiciary was unlawful. Additionally, it is expected that the Court will address more than 3,000 cases related to arbitrary detentions on similar grounds in the coming months. The Yalçınkaya case has emphasized that around one hundred thousand convictions might have contravened one of the most ancient and fundamental legal maxim “nullum crimen, nulla poena sine lege”.

In light of this context, it’s justifiable to express concerns about the European Court’s timeliness in addressing these severe human rights violations. The fact that approximately 8000 convicted individuals have resorted to Strasbourg suggests that many others, facing unlawful detention, must have similarly sought the Court’s intervention much earlier. Notably, the first judgment that specifically dealt with the use of ByLock evidence in detention matters, the Akgün case, was delivered on July 20, 2021, nearly five years after the onset of detention practices. While the Akgün case made some important conclusions about the impugned evidence, it failed to thoroughly address the fundamental issues arising from the admissibility of such evidence. One could argue that the Court could, and indeed should, have issued rulings on this matter at its earliest opportunity.

In conclusion, what this case reveals is deeply disturbing, appalling and embarrassing. It highlights the disheartening fact that over one hundred thousand innocent individuals were wrongfully convicted by the courts of a country that prides itself of being a founding member of the Council of Europe. In this context, the execution procedure of the judgment by the Committee of Ministers holds paramount importance. The Turkish government should take the necessary steps to bring its domestic courts in line with the Yalçınkaya judgment or make the required amendments to its legislation as general measures. Additionally, it falls upon Turkish civil society and human rights organizations, both local and international, who might not have voiced their concerns strongly enough against such gross and massive violations of human rights before, to diligently monitor the implementation of this momentous judgment.