The Yalçınkaya Decision and Its Impact on FETÖ/PDY Cases
- Av. Hatice Kübra Karadağ
- Nov 2, 2023
- 19 min read
The European Court of Human Rights published the long-awaited "ByLock decision" on September 26, 2023 (Yüksel Yalçınkaya/Turkey (BD), Application No: 15669/20, 26/09/2023). This decision, given by the Grand Chamber, is of great interest to those who have been convicted of membership in an armed terrorist organization under the Turkish Penal Code Art. 314/2 on the grounds of using the messaging application named ByLock and whose trials are still ongoing (including regular and extraordinary legal remedies). Therefore, we decided that the role of this decision in Fetö/Pyd cases in Turkey needs to be examined.
In the incident subject to the application; the applicant, a former teacher, was dismissed from his profession following the July 15th Coup Attempt and was prosecuted and sentenced to 6 years and 3 months in prison for membership in an armed terrorist organization under the Turkish Penal Code Art. 314/2. The conviction became final after passing through the appeal and cassation stages, and the individual application made to the Constitutional Court was found inadmissible.
The applicant, alleging that his trial and conviction violated Articles 6, 7, 8, and 11 of the European Convention on Human Rights, made an individual application to the ECtHR on March 17, 2020, after exhausting domestic remedies.
In its Grand Chamber judgment concerning the Yalçınkaya case, the European Court of Human Rights ruled that:
Article 7 of the European Convention on Human Rights (no punishment without law) was violated,
Article 6/I of the European Convention on Human Rights (right to a fair trial) was violated,
Article 11 of the European Convention on Human Rights (freedom of assembly and association) was violated.
ECtHR's Opinion on Article 8 of the Convention (Right to Respect for Private and Family Life):
The Court, taking into account the main issues raised by the applicant under Article 8 regarding his conviction based on evidence obtained unlawfully, considered that these issues had been dealt with under Article 6/1. Given the specific circumstances of the current case, the Court concluded that there was no need to make a separate decision on the admissibility and merits of these complaints in terms of Article 8. (Decision paragraph no. 373)
The decisive evidence for the applicant's conviction is the information and reports indicating he was a ByLock user. Initially, the applicant was convicted based on data obtained by MIT (National Intelligence Organization), and several reports confirming this data (the ByLock report obtained from the Police Department and the subsequent KOM ByLock report). CGNAT data obtained from BTK and HTS records were added to the case file during the appeal process. The Court of Cassation believed that the appellate decision was made without waiting for a detailed ByLock detection and evaluation report, which did not influence the outcome of the trial. This report was published by KOM after the case was concluded (on October 7, 2020).
The supporting evidence for the applicant's conviction includes opening an account at Bank Asya and membership in Aktif Eğitim-Sen (which would later be closed) and the Kayseri Volunteer Educators Association.
Before delving into the content of the ECtHR's Yalçınkaya decision, it is worth noting the following. This decision is of great significance, particularly concerning the "No Punishment without Law" principle. Among the more than 25,000 violation decisions rendered by the ECtHR between 1959-2022, only 59 pertained to the violation of the "No Punishment without Law" principle, making this decision the 60th of its kind.
Examination of the Articles of the Convention Violated According to the European Court of Human Rights in the Context of the Decision.
1- Right to a fair trial ECtHR Art. 6/I
As a rule, the European Court of Human Rights does not intervene in the discretion of trial courts regarding the evidentiary quality of a piece of evidence. This is because the European Court of Human Rights is not an appellate court. However, if this discretion or an error related to material facts or law clearly leads to a denial of justice, the Court will take it into account under the right to a fair trial. The question to be answered in this regard is whether the applicant was given the opportunity to object to the evidence and oppose its use, and whether the trial was fair overall. (decision paragraph 303). In this context, the Court emphasizes the distinction between the admissibility of evidence (i.e., which evidentiary elements can be presented for the court's evaluation) and the right to defense concerning the evidence actually presented to the court.
The Court has pointed out that an examination of whether the trial was fair overall must also include an assessment of whether the applicant was given the opportunity to object to the evidence and whether the principles of adversarial trial and equality of arms were respected. Whether the applicant's objections to the evidence were duly examined by the national courts, that is, whether the applicant was truly "heard," and whether the courts supported their decisions with relevant and adequate reasons, are also factors to be taken into account in this assessment.
For the applicant, the fact that data collected from the ByLock server by MIT was not shared with him, and that he was deprived of the right to object to and defend against the ByLock evidence due to non-compliance with the principles of equality of arms and adversarial trial and not being presented for independent examination in accordance with Article 134/4 of the CMK, stands out as a violation reason under Article 6 of the ECHR. The judgment indicates that the local courts did not provide an opportunity to effectively object to the evidence against him. Concerns about the reliability of ByLock, such as inconsistencies between user lists published by intelligence services, discrepancies between the number of prosecuted users and the number of downloads, were left unanswered.
According to the ECtHR, the trial should have been conducted in such a way that at least allowed the applicant to comment on all the decrypted material related to him in accordance with the principle of equality of arms. ByLock could be downloaded from public app stores or websites until the beginning of 2016, approximately for two years. The ECtHR, noting that the national courts accepted the determinations made by MIT in an extrajudicial context and did not thoroughly examine these determinations, concluded that there were not sufficient safeguards to ensure the applicant had the opportunity to effectively challenge the evidence against him and to conduct his defense on an equal footing with the prosecution. Consequently, the claim of exclusivity could not be proven (decision paragraph 340).
In conclusion, the ECtHR views the acceptance of the ByLock list prepared by MIT and KOM by trial authorities as definitive and indisputable evidence that the person is a member of a terrorist organization as a violation of the right to a fair trial. According to the Court, the presence of HTS and CGNAT records indicating the use of ByLock by a person; even the identification of ID does not change this situation. Accepting such use as definitive evidence that the applicant committed the crime attributed to him, depriving the applicant of the right to learn the contents, question its reliability, and the right to object to it, constitutes a violation of the right to a fair trial in itself. The applicant has been deprived of the opportunity to effectively object to the evidence against him and of adequate procedural safeguards. The national judiciary has failed to address the significant issues underlying the case and has not adequately justified its decisions.
For these reasons, the ECtHR concluded that the criminal trial against the applicant did not meet the requirements of a fair trial and that Article 6, paragraph 1 of the Convention was violated.
2- No punishment without law - ECHR Art. 7
In the ECtHR's Yalçınkaya decision, the most significant article for which a violation was determined is the 'No Punishment Without Law' provision, which is as follows:
''No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.''
In the ECtHR's Yalçınkaya decision, the most critical article violated was the "No Punishment Without Law." The applicant complained that the acts forming the basis for his conviction were lawful at the relevant time and that the penalization for these acts, by broadly and arbitrarily interpreting the relevant laws, violated Article 7 of the Convention. According to Article 6/2 of the European Convention on Human Rights, he complained that, even though there was no court decision declaring FETÖ/PDY a terrorist organization at the time of the acts attributed to him, he was accused on the grounds that the said structure was banned by the executive as an armed terrorist organization. (decision paragraphs 214-215)
Firstly, according to the European Court of Human Rights, Article 314/2 of the Turkish Penal Code, especially when read in conjunction with the Anti-Terrorism Law and the jurisprudence of the Court of Cassation, is sufficiently clear to inform a person about which actions and omissions would render them criminally liable. In other words, it meets the requirement of clarity that a law should have (decision paragraph 249).
However, in any legal system, including criminal law, judicial interpretation is an inevitable aspect, no matter how explicitly a legal provision is drafted. Yet, the European Court of Human Rights has concluded that due to the excessively broad and arbitrary interpretation of the law, the application was extended unpredictably. For the Court, it's not enough for a legal regulation to be clear and predictable; the way it's interpreted by judicial authorities must also be clear and predictable (decision paragraph 239).
The Court acknowledges that FETÖ/PDY was not yet defined as an armed terrorist organization under domestic law at the time the applicant committed various acts in the charges against him. However, the Court believes this alone isn't enough to render the applicant's conviction incompatible with Article 7 of the Convention. The main reason is that, as can also be seen from the relevant decisions of the national courts, the rule in Turkish law regarding the legal definition of a terrorist organization does not have the effect of preventing the criminal liability of the organization's founders or members for actions they committed before this definition, as long as they acted "knowingly and willingly" (decision paragraph 253).
The Court thinks that the issue concerning Article 7 of the Convention in the context of the present case isn't whether FETÖ/PDY was banned as a terrorist organization at the time of the actions attributed to the applicant.
What the Court primarily focuses on is whether the applicant's conviction of membership in an armed terrorist organization, especially as stipulated in Article 314/2 of the Penal Code, the Anti-Terror Law, and the relevant jurisprudence of the Court of Cassation, was sufficiently foreseeable when considering the requirements of domestic law.
The judgment particularly emphasizes that the crime of membership in an armed terrorist organization requires special knowledge and intent. Detailed reference is made to the elements of this crime and the jurisprudence of the Court of Cassation.
The European Court of Human Rights points out that local courts and the government considered ByLock usage alone as sufficient for conviction (paragraph 257), but this does not align with the requirements for proof of an organic link based on continuity, diversity, and intensity for membership in an armed terrorist organization (paragraph 264).
According to the ECtHR, drawing definitive conclusions for the entire user base from other users' profiles and shares, without concrete content or other relevant information about a defendant, is not only unpredictable but also contrary to the principle of legality and individual criminal liability (paragraph 265).
The ECtHR states that this broad and unpredictable interpretation created an almost automatic presumption of guilt based solely on ByLock use, making it nearly impossible for the applicant to exonerate himself (paragraph 268).
In summary, the ECtHR found that national courts placed a near-absolute level of liability on those alleged to have used ByLock, and rather than determining the material and mental elements of the crime of terrorist organization membership as foreseen in domestic law and jurisprudence of the Court of Cassation, they delivered convictions based on assumptions. According to the ECtHR, the expansive and unpredictable interpretation by these courts is contrary to the purpose and aim of Article 7 of the Convention to provide effective safeguards against arbitrary prosecution, conviction, and punishment (paragraph 300).
In conclusion, the Court ruled that the applicant was convicted for actions that did not constitute a crime, and therefore, Article 7 of the Convention was violated.
3- Freedom of assembly and association - ECHR Art. 11
In the ECtHR's Yalçınkaya decision, another significant article for which a violation was determined is the 'Freedom of Assembly and Association.' The provision is as follows:
''Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.''
The Court pointed out that the mere presence in the file of union and association memberships, even as circumstantial evidence as the government argued, was sufficient to acknowledge the existence of an "intervention" in the rights protected under Article 11.
In such a case, it is crucial to determine whether the intervention has a legal basis (i.e., whether it is based on a legal regulation). According to the Court, the actions of joining a union and association are entirely legal activities, and no evidence to the contrary has been presented. The Court concluded that Article 314/2 of the Turkish Penal Code (TCK) was interpreted broadly and arbitrarily, treating the applicant's legal activities and the exercise of his fundamental rights as criminal activities. The Court believes that such an interpretation of the provisions is so arbitrary that the applicant lacks even the minimum guarantees necessary to protect the rights enshrined under Article 11. Given that the intervention lacks a legal foundation, there's no need to even investigate whether the intervention is legitimate.
According to the ECtHR, due to the overly broad interpretation of Article 314/2 of the Turkish Penal Code (TCK), the applicant's membership in a legally operating union and association was deemed a criminal activity.
However, it was impossible for the applicant to foresee that he could be charged with membership in a terrorist organization solely based on these legal actions of joining a union and association. In this context, the Court considered the inclusion of union and association membership in the conviction decision, even as secondary evidence, as a violation because it did not meet the "prescribed by law" criterion. Hence, the Court felt no need to even examine whether the intervention pursued a legitimate aim.
Is the decision binding on Turkey?
The Court stated that, in order to avoid identifying similar violations in numerous cases in the future, the flaws identified in the current judgment need to be addressed by the Turkish authorities on a broader scale - beyond just the specific case of the current applicant.
According to the ECtHR, under the obligations of Article 46 of the Convention, the state must draw the necessary conclusions from the current judgment, "especially but not limited to" the cases pending before the national courts, and take appropriate general measures to resolve the issue leading to the violations. (par. 418)
Since Turkey is a party to the European Convention on Human Rights, it is obliged to implement the decisions of the ECtHR both due to Article 46 of the ECHR and Article 90 of the Constitution.
ECHR Article 46
Binding force and execution of judgments
''The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.''
Constitution of Republic of Turkiye, Article 90/5
Ratification of international treaties
''International agreements duly put into effect have the force of law. No appeal to the Constitutional Court shall be made with regard to these agreements, on the grounds that they are unconstitutional. (Sentence added on May 7, 2004; Act No. 5170) In the case of a conflict between international agreements, duly put into effect, concerning fundamental rights and freedoms and the laws due to differences in provisions on the same matter, the provisions of international agreements shall prevail.''
There may arise a procedural difference stemming from the Code of Criminal Procedure regarding the binding nature of the decision and at which stage of the trial it will be taken into consideration. According to Article 311/1-f of the CMK (Code of Criminal Procedure), if it has been determined by an ECHR decision that a criminal judgment has been given by violating the European Convention on Human Rights, a "retrial" can be requested within one year. This procedural rule is indicated as the legal remedy for Yüksel Yalçınkaya and those like him who have pursued all legal avenues to the end. Although there is an opposing view that the provision of CMK Article 311, stating ''decisions finalized against the ECHR's decision are a reason for retrial'', should not be narrowly and restrictively interpreted, future trials will show the stance the Turkish judiciary will take.
Grounds for a new trial in favor of the convicted individual
Article 311 – (1) A lawsuit that has been concluded with a final judgment shall be tried again in favor of the convicted individual through the way of a new trial, under the following circumstances: ... f) If a final judgment of the European Court of Human Rights has established that the criminal judgment is violating the Convention on Protecting the Human Rights or its Protocols. In such cases, a motion for a new trial may be filed within one year after the date of the final judgment of the European Court of Human Rights.
Since the Yalçınkaya decision was given by the Grand Chamber of the ECHR, it is final as soon as it is announced and should be implemented immediately. As the Yalçınkaya decision concerns a final verdict, it is also binding according to the CMK (Code of Criminal Procedure), and the local court has no right or authority to disregard the decision.
Due to the decision being final, it will be sent directly to the executive directorate of the Council of Europe's Committee of Ministers. After this decision, the Turkish government is obliged to submit an action plan within six months. It is the state's obligation to both implement individual measures to address the applicant's victimization (compensation, retrial, etc.) and general measures to prevent similar violations (changes in jurisprudence and legislation, etc.).
The Court has decided that Turkey must take general measures under Article 46 of the Convention to resolve systemic judicial problems related to Bylock usage, which is a method rarely resorted to. Because essentially, it is up to the state to decide how the decision will be executed. General measures usually require legislative or jurisprudential changes. From the reasoning of the decision, it is understood that there is a greater need for a change in jurisprudence.
The Impact of the Yalçınkaya Decision on Dismissals from Public Service
The removal from public service by the Decree Law during the State of Emergency is clearly a "disciplinary action" and is subject to disciplinary law provisions in accordance with the Civil Servants Law No. 657 and other relevant legislation. Therefore, in accordance with this legislation, a disciplinary investigation should have been launched in accordance with the proper procedure for persons to be dismissed from public service, they should have been informed of the allegations against them, and their defense should have been taken along with other procedural guarantees. However, without applying any of these procedural guarantees, without even taking a defense, and even without individually notifying the parties of their dismissal from public service, dismissal procedures were carried out by listing names in the annex of the Decree Law. The interpretation of "it is of an extraordinary measure nature" made in the decision numbered T.4/10/2016 and E.2016/8196, K.2016/4066 by the 5th Chamber of the Council of State is shown as the reason for not applying these disciplinary provisions.
Although the Yalçınkaya case, which is related to a conviction based on a criminal case, does not have a direct connection with a public official being dismissed from public service by a Decree Law, administrative cases in this context and the criminal case regarding the same person have almost intertwined. Therefore, it is useful to address this issue as well.
The evaluations of the court in the Yalçınkaya decision in the context of Articles 6 and 7 of the Convention are very important. It is very clear that the Yalçınkaya decision of the ECHR will also affect the administrative judiciary, as the Turkish judiciary's Administrative Courts should act according to the justifications in the ECHR Yalçınkaya decision, which they have made a suspensive issue.
One of the decisions given by the Council of State on the suspensive issue is as follows;
"Due to the fact that the crime is clearly defined in the Turkish Penal Code No. 5237, whether the plaintiff committed this crime can only be determined as a result of the decision to be given by the criminal court; It is necessary for the Administrative Court to investigate whether the criminal case has finally concluded or not, and taking into account the final decision to be given in the criminal trial, the plaintiff should make a reassessment as to whether the acts subject to the disciplinary penalty were committed. However, the decision of the Administrative Court, which was given without considering this matter, is not in compliance with the law regarding this transaction." (Council of State 5th Chamber, E.2019/545, K.2019/4200 and decision dated 19.6.2019.)
Firstly, the reason for the dismissal of individuals from public duty by the Decree Law (KHK) is justified by a very abstract and general expression, "affiliation or connection", which has no legal aspect. Without even providing a specific reason attributed to the individuals, such dismissals by listing are inherently unlawful, regardless of any determination in the Yalçınkaya decision.
Nevertheless, in administrative cases, allegations that were not present in the file at the time the challenged action was taken, i.e., when the individual was dismissed from public service by the Decree Law, are included. This situation is also inherently illegal.
Although we emphasize that "affiliation or connection" has no legal aspect; administrative courts claim that "public officials connected and/or affiliated with FETÖ/PDY have violated their constitutional obligations, and the continuation of individuals associated with the said organization in public institutions poses a significant threat to state security." Therefore, they reject the cases opened by those dismissed from public service. In this respect, the evaluation of connection and affiliation stands before us as a "systematic problem", as also pointed out by the ECHR.
The principle of "applying the more favorable provision", which originated in criminal law but has been adopted as a valid principle in all branches of law over time, foresees the application of the subsequent favorable norm to offenses previously committed when an act considered a crime according to the legal norms at the time it was committed is later decriminalized by a new regulation, or when a subsequent regulation brings more favorable results for the offender than the regulation in force at the time of the crime.
In the field of administrative law, judicial review of administrative actions is, as a rule, carried out according to the legislation in force at the time they were enacted. Although the disciplinary penalty, which is an administrative action, should be judicially reviewed according to the legislation in effect at the time of its enactment, it is necessary to accept that the principle of applying the more favorable provision is also valid for disciplinary penalties. (Council of State 5th Chamber, E.2016/16809, K.2020/282 and decision dated 27.1.2020)
Frequently Asked Questions
What is the Impact of ECHR Decisions on Turkey?
According to Article 46 of the European Convention on Human Rights, the decisions of the court are binding. "Contracting states have committed to comply with the final decisions of the Court in cases to which they are parties." These decisions do not annul national court decisions; they merely determine that these decisions violate the European Convention on Human Rights. Contracting states are obliged to take the necessary measures to implement the ECHR decisions. How they will do this is left to their discretion.
If the violation of the ECHR results from a law that is contrary to the Convention, the implementers (government, administration, judiciary) are required to apply that law in accordance with the understanding and interpretation of the ECHR. However, if the relevant law contains definite provisions and is not suitable for interpretation, there will be no other remedy than to change that law.
In accordance with Article 90 of the Constitution and Article 46 of the ECHR, ECHR decisions are binding in domestic law. The violation decision should also be applied to those in similar situations. Turkey is obliged to implement this decision within 6 months, and if the decision is not implemented, sanctions from the Council of Europe come into play. Since the decisions are final, a retrial request must be made within 1 year from the date the decision is made.
How might the Yüksel Yalçınkaya decision affect other similar cases?
The case in question was selected as a "leading case" by the Second Section of the ECHR due to its potential to serve as a precedent for future cases. For this reason, on May 3, 2022, the Second Section decided to waive its jurisdiction in favor of the Grand Chamber. In its evaluation of the application, the Grand Chamber detailed the measures to be taken under Article 46 of the Convention, in line with the case's "leading case" designation.
It's evident that this case doesn't concern only the applicant, Yüksel Yalçınkaya. There are tens of thousands of individuals who have been subjected to similar trials and convictions. This pilot decision by the ECHR will set a precedent for those who have been sentenced based on allegations of using ByLock or for membership in an organization without the element of force or violence. If there had been no violation of Article 7 (No punishment without law), one could say that this decision would be binding only for cases with the same grounds for conviction (ByLock, Bank Asya, Union/Association membership). The emphasis on the "Mental Element" in the decision clearly indicates that this ruling can be applied to any act that doesn't constitute a crime per se (working in an institution shut down by a decree, attending a meeting, depositing money in a bank operating under state permission, etc.). One of the criteria set out by this decision is whether "the individual could have foreseen that the act attributed to him/her would lead to an accusation of membership in a terrorist organization in the future." Another is "whether the right to defend oneself against all evidence used in one's favor and against during the trial was ensured in accordance with the principles of equality of arms and adversarial trial, and whether the entire trial process was conducted fairly." Thus, the Yalçınkaya decision is now significant not just for using ByLock but also for cases where individuals are convicted solely based on their membership in a social group, backed by numerous covert/overt witness statements or confessions.
What should those whose conviction has been finalized without using individual application mechanisms (Constitutional Court/ECHR) do?
In its decision of 26 January 2023, titled İbrahim Er and Others, the Grand Assembly of the Constitutional Court evaluated the local courts' refusal to consider a violation decision given about another individual as a ground for retrial, especially for those who did not apply through the individual application procedure, as a violation of the right to a fair trial. In light of this jurisprudence, the Yalçınkaya decision should be considered a reason for retrial not only for those who have applied or will apply to the ECHR but for all individuals who have been similarly convicted. On the other hand, there are also arguments suggesting that the ECHR decision should be acknowledged under the Article 311/1-e of the Turkish Criminal Procedure Code as "a new fact or evidence that requires the acquittal of the defendant.".
How Does the ByLock Decision Affect Turkish Judiciary?
The ECHR's Yalçınkaya decision will set a precedent for those sentenced due to allegations of ByLock usage or for membership in an organization without the element of force or violence. Different legal paths will need to be pursued for the implementation of this decision, depending on whether the trials are ongoing or have been finalized.
1- Effect on Ongoing Trials:
The violation decisions stated in the Yalçınkaya ruling should be presented to First Instance Heavy Penal Courts, Administrative Courts, Regional Courts of Justice, the Supreme Court, Regional Administrative Courts, the Council of State, and the Constitutional Court, depending on their current stage, for consideration. Within this scope, legal remedies can be pursued within the objection period for interim decisions.
The violation decision of the ECHR does not directly result in the release of detainees. Therefore, those detained for similar crimes can apply to their respective courts and request trial without detention, arguing that the ECHR decision has determined that there is no crime.
2- Effect on Finalized Trials:
The violation decision given by the ECHR is a reason for retrial for the applicant, as stipulated in Article 311/1-f of the Turkish Criminal Procedure Code (CMK). Indeed, the ECHR's violation decision is considered a new fact or evidence that requires a retrial for those whose cases have been finalized and have been subjected to similar charges under Article 311/1-e of CMK.
Moreover, the decision hints that the most appropriate individual measure and remedy for the violation, in terms of Article 46 of the ECHR, is the retrial. Aside from the retrial, those who have been convicted based on similar charges should still apply; if their applications are rejected, they should pursue the individual application route to the Constitutional Court (AYM). Given that a violation from the principle of legality in Article 7 of the ECHR has been identified, this indicates that there is no crime, necessitating the acquittal of everyone sentenced based on similar charges.
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