The European Court of Human Rights (ECHR) has held Turkey accountable for violations of fair trial rights. The judgment, released on Tuesday, pertains to criminal convictions based on the use of the encrypted messaging application ByLock.
ByLock drew the attention of Turkish authorities following the failed coup attempt in 2016coup attempt. The government alleged that the app was used solely by the supporters of Fethullah Gülen, an Islamic cleric in exile whom Turkey accuses of planning the coup. Based on this, in 2017, Turkey’s constitutional court ruled that using ByLock could be constructed as evidence of membership of a terror organizationterrorist organization.
In the case of Yüksel Yalçinkaya v. Turkey, the ECHR ruled that Turkey had violated Yalçinkaya’s fair trial rights under Article 6 of the European Convention on Human Rights, and his rights against retroactive criminalization under Article 7. Yalçinkaya, was a former teacher charged with being part of an armed terrorist organization on the assertion he had used the ByLock app.
The ECHR noted flaws in the way Turkish courts examined evidence related to ByLock usage. The court found that Turkish courts linked mere use of the app with criminal intent without adequately establishing elements of the offence. Additionally, Yalçinkaya was refused access to crucial encrypted data which could have allowed him to dispute the evidence.
The ECHR ruling found that the overly broad interpretation amounted to an “almost automatic assumption of guilt”, contrary to the principle of Article 7 that protects against arbitrary prosecution. The ECHR also noted that Turkish courts failed to provide sufficient safeguards for Yalçinkaya to effectively challenge the evidence, contravening his fair trial rights under Article 6.
Interestingly, the court highlighted that the problems encountered were “systemic in nature” with more than 8,500 similar cases pending at the ECHR and around 100,000 suspected ByLock users in Turkeysystemic problems. The court further ruled that under Article 46, Turkey must adopt reforms to address the systemic issues related to its judiciary’s examination of ByLock evidence.
However, the decision was sharply criticized by the Turkish Justice Minister Yilmaz Tunc. He argued that the ECHR had overstepped its authority by directly evaluating evidence that national courts deemed adequatecriticized. According to Tunc, previous ECHR case laws reserve questions about the admissibility of evidence strictly to domestic jurisdiction.
While the judgment puts additional scrutiny on Turkey’s mass trials of alleged Gülen supporters, it remains unclear if Ankara will reform its judiciary’s practices concerning ByLock evidence or continue to challenge the ECHR’s authority on this issue.