‘Article 7’ Shockwaves, ByLock and Beyond: Unpacking the Grand Chamber’s Yalçınkaya Judgment

by Emre Turkut

On 26 September 2023, the Grand Chamber of the European Court of Human Rights delivered a highly anticipated decision in the case of Yalçınkaya v. Türkiye. The case concerns an application lodged on 17 March 2020 by a teacher who was dismissed from public service through a coercive state of emergency decree, namely Decree No. 672, during the post-2016 coup period in Turkey. The applicant challenged his trial and conviction under Article 314/2 of the Turkish Penal Code (TPC) for alleged membership in a terrorist organisation, the ‘Gülen Movement (GM)’, which the Turkish authorities designated as the FETÖ/PDY (Fetullahist Terrorist Organisation/Parallel State Structure) due to their alleged involvement in organising the 2016 attempted coup. The crucial evidence leading to the applicant’s conviction was the use of ByLock, an encrypted messaging app similar to Signal and Telegram, which Turkish domestic courts claimed had been created exclusively for the FETÖ/PDY despite its global existence (for more background on the Yalçınkaya case and the issues surrounding the legality, reliability, and admissibility of ByLock digital evidence, see here).

The Grand Chamber’s decision sent shockwaves through Turkey. Firstly, in its decision, the Grand Chamber found that the applicant’s conviction violated several important articles under the European Convention on Human Rights (ECHR), including Article 7 ECHR (no punishment without law), Article 6/1 ECHR (right to a fair trial) and Article 11 ECHR (freedom of assembly and association). Secondly, the case has the potential to produce far-reaching implications, setting a precedent for thousands of similar cases in Turkey where ByLock evidence was decisively used for convictions and prosecutions in the post-coup period.

This judgment carries immense significance for Turkey due to several compelling reasons (as further outlined in the Comment section). But at a more general level, the Grand Chamber’s message is particularly relevant to only a handful of countries that misuse terrorism charges for contentious and controversial purposes. However, the impact of this decision could have extended well-beyond Turkey (to countries with a relatively high quality of democracy and human rights compliance) if the Grand Chamber had not seemingly ‘missed out’ on an ‘opportunity’ to address the use of electronic evidence, particularly evidence obtained through encrypted communication networks, in criminal proceedings. While the Grand Chamber did offer extensive guidance on issues related to mass surveillance in the cases of Big Brother Watch and Others v. the United Kingdom and Centrum För Rättvisa v. Sweden, it did not provide the same level of clarity when it came to the digital evidence obtained through interception of telecommunications.

The Grand Chamber’s decision

In the Yalçınkaya judgment, the Grand Chamber made significant findings regarding the applicant’s conviction based on the use of ByLock, concluding that it clearly violated fundamental principles enshrined in the ECHR, particularly Articles 6 and 7 ECHR. Specifically, the Grand Chamber emphasised that these arbitrary judicial decisions created a near-automatic presumption of guilt for the victims, rendering it nearly impossible for them to challenge the ByLock evidence and prove their innocence which ran counter to the core objectives of Article 7 ECHR. Moreover, there were notable procedural deficiencies in the criminal proceedings against the applicant, particularly in relation to his access to the ByLock evidence specific to his case and his ability to effectively contest it. These shortcomings amounted to a breach of his right to a fair trial as guaranteed by Article 6 ECHR.

The Grand Chamber also found an Article 11 ECHR violation in the case as the domestic courts had interpreted Article 314/2 TPC in a broad, extensive and unforeseeable manner so as to include the applicant’s membership of a trade union and an association (Aktif Eğitim-Sen and Kayseri Voluntary Educators Association respectively) as indications of criminal conduct (such as incitement to violence or rejection of democratic society’s foundations), even though both had been operating lawfully before the 2016 attempted coup.

More importantly, the Grand Chamber underscored that the problems leading to these violations were of a ‘systemic nature’. Currently, there are approximately 8,500 pending applications before the Court that involve similar complaints under Articles 7 and/or 6 of the Convention. Given that authorities had identified around 100,000 ByLock users, it is likely that many more such applications could be submitted. Therefore, the systemic nature of the issues became evident. In accordance with Article 46 ECHR, the ECHR ruled that Turkey must take appropriate general measures to address these systemic problems, particularly regarding the Turkish judiciary’s handling of ByLock evidence.

Comment

The Yalçınkaya judgment has several crucial elements that highlight its profound significance. Yet, it also leaves important questions unanswered. In what follows, I will try to elaborate on them in five key points.

Firstly, the case revolves around the role of ByLock evidence within the Turkish context. Among the various criteria used to charge individuals under Article 314 TPC for alleged membership in the GM, ByLock usage has emerged as the most damning and often decisive evidence, particularly in the post-coup period. Turkish domestic courts, including the Court of Cassation, consistently regarded involvement in the ByLock network as sufficient grounds for convicting someone of membership in an armed terrorist organisation, even in the absence of other evidence. The Grand Chamber’s findings under Articles 7 and 46 set a precedent with far-reaching implications, given the thousands of similar cases pending before Turkish courts as well as the ECtHR.

Secondly, the case sheds light on the rare invocation of Article 7, a fundamental safeguard against arbitrary or unfair criminal prosecution and punishment. The Yalçınkaya judgment represents only the 60th violation of Article 7 in the ECHR’s history out of over 25000 violations between 1959-2022. This is not surprising given the inherent difficulty to distinguish between law and fact – arguably the decisive factor of any violation on Article 7. This is evident from the joint partly dissenting opinion by Judges Ravani, Bårdsen, Chanturia, Jelić, Felici and Yüksel in the Yalçınkaya case (I will get to this below). Notably, the Grand Chamber employs Article 7 to address mass and widespread convictions and prosecutions resulting from systemic issues, a move that may have broader implications beyond Turkey, affecting countries with persistent human rights violations.

The third aspect relates to the use of digital evidence in criminal proceedings. The case clearly presented an opportunity for the Court to lay down some general principles, especially concerning electronic evidence obtained through encrypted communications, as also highlighted in the partly dissenting and partly concurring opinion of Judge Yüksel. It is important to note here that the Court has two pending cases involving digital data obtained through the infiltration of ‘EncroChat’, a network similar to ByLock. Against this backdrop, a more in-depth analysis could have provided much-needed clarity on the intersection between digital evidence and the right to a fair trial under Article 6 of the ECHR, as well as the principles of subsidiarity and human rights-compliant digital evidence use – the issues that could have an added value for the pending ‘EncroChat’ cases. Unfortunately, the Grand Chamber missed out this opportunity to draw some normative standards and guidance in the uncharted territory of digital evidence and human rights.

Fourthly, there is the challenge of distinguishing between law and fact, which constitutes the most significant element in any Article 7 violation. Judges Ravani, Bårdsen, Chanturia, Jelić, Felici and Yüksel issued a partly dissenting opinion, arguing that the majority’s approach deviates from the established rationale and scope of Article 7. They contend that ByLock usage constitutes a fact rather than a norm and that the applicant’s conviction relied on multiple pieces of evidence, not solely ByLock usage. A quick reading of this dissenting opinion may tell us that they challenge the gist of the majority’s significant findings by seeking to reduce the persuasiveness and legal authority of the judgment.

However, their concerns should not be dismissed so hastily. Essentially, their argument delves into the meta-question that has perplexed legal scholars and practitioners for years. It is rather straightforward and easy to give a factual example in this context, such as ‘Individual X is a ByLock user’. But the Grand Chamber highlights a crucial point – that is the fact that Turkish domestic courts failed to provide a clear explanation of how Individual X had knowledge of the alleged terrorist organisation’s objectives, including the use of violence, and that this individual possessed the intent to further the organisation’s alleged goals or made any tangible or mental contributions to its actual existence or strengthening. Rather, the domestic courts consistently held that ‘the use of ByLock denoted membership of an armed terrorist organisation, without seeking to establish the presence in the applicant’s specific case of the knowledge and intent required under the legal definition of the crime in domestic law, effectively attached objective liability to the use of ByLock (para. 263).’

In simpler terms, as clearly underscored by the Court, the Turkish domestic courts have effectively created the norm that the use of ByLock shall be prohibited and criminalised, and this expansive and unforeseeable interpretation of the terrorism membership had the effect of creating ‘an almost automatic presumption of guilt based on ByLock use alone (para. 268)’ and setting aside ‘the constituent, notably the mental elements of the offence and treating it as akin to an offence of strict liability’ (para. 271). I believe this part of the judgment, including the in-depth analysis and findings of the Grand Chamber under Article 7, along with the partly dissenting opinion of Judges Ravani, Bårdsen, Chanturia, Jelić, Felici, and Yüksel, constitutes a valuable resource for anyone deeply engaged in this hard and longstanding debate surrounding the law-fact distinction.

The final issue relates to the strained relationship between the ECtHR and the Turkish Constitutional Court (TCC) – as well as between the Council of Europe and the Turkish Government – since the 2016 attempted coup. The emphasis of the Grand Chamber under paragraph 418 of the Yalçınkaya judgment is important in this context. The said paragraph generally outlines the obligations imposed on Turkey to take specific measures, both individual and general, under Article 46 to address the identified defects and prevent future violations. Importantly, the Grand Chamber emphasised that Article 46 ECHR holds the force of a constitutional rule in Turkey, according to Article 90/5 of the Turkish Constitution, which grants international human rights treaties preferential treatment over domestic law. This call is noteworthy and significant, given Turkey’s recent history of reluctance to implement high-profile ECHR judgments, such as the cases of Selahattin Demirtaş and Osman Kavala.

An interesting development in this discussion was the Yıldırım Turan case of July 2020 where the TCC for the first time openly defied the ECtHR’s authority. In the Turan case, the TCC unanimously found that domestic courts are better placed to interpret the provisions of domestic law than international human rights monitoring bodies. In other words, the TCC held that its interpretation of the national law and the Turkish Constitution could not be trumped by an alternative explanation of the European Convention by the Strasbourg Court.

Turkey is by no means alone on this front – the Russian Constitutional Court (RCC) was the first in expressing growing in expressing growing concern that its relationship with the ECtHR is one of ‘subordination‘. The Russian Government in December 2015 adopted a federal legislation granting the RCC the authority to declare the rulings of international courts, notably those by the ECtHR, as ‘unenforceable’, for example, in case of ‘inconsistencies’ between an ECtHR judgment and the Russian Constitution – a move that laid  the early foundations of Russia’s expulsion from the Council of Europe in 2022. Similarly, in the UK, withdrawal from ECHR has been a recurring theme most recently in the context of the controversial Illegal Migration Act 2023.

As things stand, Turkey is the first country to have full monitoring procedure reopened in the Parliamentary Assembly of the CoE’s history – the first one being lifted in 2004 in response to the reforms by the then new Erdoğan’s AKP Government. In 2022, the Committee of Ministers of the Council of Europe decided to launch infringement proceedings against Turkey due to its refusal to implement the Kavala judgment. Despite all this dismissal record, President Erdoğan strongly and openly attacked the Yalçınkaya judgment defining it as ‘the final straw’ that broke the camel’s back. The fallout from the Yalçınkaya case may potentially usher in a new phase in the fraught relationship between the ECtHR and the TCC and the future of Turkey in the Council of Europe more general, and only time will reveal the extent of its impact.

Conclusion

In summary, the Grand Chamber’s decision in the Yalçınkaya case is of paramount importance for Turkey and countries facing similar challenges regarding the misuse of terrorism charges. While the judgment tackles vital issues, an argument could be made that there is room for further clarification and guidance regarding the admissibility and reliability of digital evidence obtained through encrypted communication networks. With the mounting reliance on digital evidence in criminal proceedings and given the escalating discourse on the weaponisation of such evidence, the Yalçınkaya judgment conspicuously leaves such important aspects largely unaddressed.