This was decided in the Yüksel Yalçınkaya v. Turkey case, a milestone for the Turkish judiciary. In this judgment, the Grand Chamber of the European Court of Human Rights (ECtHR) made significant findings and evaluations regarding terrorism trials in Turkey, especially those related to the allegation of affiliation with the Gülen Movement after 15 July 2016.

The Yalçınkaya judgment served as a wake-up call to the Turkish judiciary regarding terrorism trials, pointing out uncertainties and arbitrariness. Given the wide-reaching implications of this landmark ruling, this blog aims to delve into the Court's observations on the violation of the principle of legality of crimes and punishments, particularly in light of Article 7 of the European Convention on Human Rights (ECHR).

Unpredictable ruling

The ECtHR criticised the Turkish judiciary for convicting the applicant of being a member of an armed terrorist organisation under Article 314/2 of the Turkish Penal Code, merely for using the ByLock communication application. ByLock is similar to WhatsApp and has been used by hundreds of thousands of people in Turkey. It can be downloaded from public app stores or websites without any restrictions.

This interpretation was deemed unforeseeable due to its overly broad and arbitrary nature. According to the ECtHR, legal provisions must not only be clear and foreseeable, but also their interpretation by judicial authorities must be clear and foreseeable.

Violation of treaty

The ECtHR emphasised that this broad and unpredictable interpretation created an automatic presumption of guilt, making it nearly impossible for the applicant to refute the charges. This expansive interpretation imposed a level of responsibility akin to ‘strict liability’ on the applicant. Despite clear legal provisions, national courts preferred to interpret and apply the law in a manner circumventing its spirit.

According to the ECtHR, making ByLock’s use a constitutive element of the crime of terrorist organisation membership without concrete evidence or other relevant information about the individual, violates the core principles of legality and foreseeability enshrined in Article 7 ECHR. Conviction based solely on ByLock’s use without establishing the elements of the crime constitutes a violation of rights.

Using Bylock is no ground for conviction

The ECtHR observed that domestic courts, including the Court of Cassation and the Government, considered the mere use of ByLock sufficient for conviction for membership of a terrorist organisation. However, the judgments did not provide a meaningful explanation of how ByLock’s use directly indicated the applicant's knowledge of FETÖ/PDY's terrorist aims or active involvement in the organisation. The Court found that specific intent and concrete contributions to the organisation's activities were not established, contrary to national law requirements. This failure to prove an organic connection and the moral element required for membership in an armed terrorist organisation violated Article 7 ECHR.

Criminalising use of ByLock is contrary to legal principles

Although the use of ByLock was not technically part of the actual offence, domestic courts equated it with knowingly and willingly being a member of an armed terrorist organisation in practice. The ECtHR underscored that this equation was false. Directly considering anyone who uses ByLock as a member of a terrorist organisation without considering other evidence results in an overly vague and broad interpretation of the concept of crime.

According to the ECtHR, criminal liability is almost automatically imposed on those who have used ByLock, disregarding the guarantees set out in Article 7 ECHR. The Court emphasised that Turkey had violated two essential legal guarantees: the principle of legality, which means no one can be convicted unless the law clearly defines their act as criminal at the time it was committed, and the right to foreseeability, ensuring that individuals can predict the legal consequences of their actions. ByLock users had no clear way of knowing they could be accused of terrorism, since using the app alone did not inherently suggest criminal intent or illegal activity.

False equation

The ECtHR noted that although the use of ByLock was not technically part of the actual element of the imputed offence, the interpretation of the domestic courts had the effect in practice of equating the mere use of ByLock with knowingly and willingly being a member of an armed terrorist organisation. As can be seen, the ECtHR found very clearly that the Turkish judiciary directly considers anyone who uses ByLock to be a member of a terrorist organisation, regardless of other considerations. In other words, it clearly emphasised that the equation ‘using ByLock = being a member of a terrorist organization’ is false.

As the ECtHR found, the direct acceptance of the applicant as a member of an armed terrorist organisation due to Bylock, which is a widely used messaging application similar to Whatsapp, Signal and Telegram, without determining the actions and evidence that would reveal the existence of the crime, results in an unpredictably vague and broad interpretation of the concept of crime.

Milestone for Turkish judiciary

The Yalçınkaya judgment serves as a milestone and turning point for the Turkish judiciary, revealing systematic violations of the spirit of the ECHR, especially Article 7, in recent terrorism trials. These violations have resulted in thousands of individuals like the applicant automatically being labelled as organisation members solely due to their use of ByLock. If the Turkish judiciary does not rectify its misapplication of the law in terrorism trials based on ByLock use in line with the Court's findings, the ECtHR will likely issue a record number of violation judgments on Article 7. Already, there are over 8,000 similar complaints pending before the Court, with approximately 100,000 ByLock users. The Court has notified the Turkish government in approximately 2,000 similar cases post-judgment, emphasising the need for Turkey to take appropriate general measures to address systemic issues in accordance with Article 46 ECHR.