5 days ago
Interviewer: Hi, a warm welcome to everybody. Today we are going to be discussing the ECtHR's Yalçınkaya decision. We have with us Dr Sanna Elfing and Dr Chloë McRae Gilgan, both senior lecturers from the University of Lincoln Law School.
Ms Elfving and Ms Gilgan: Thank you.
Interviewer: May I kindly ask you to briefly introduce yourselves for the audience who do not already know you?
Ms Gilgan: Sure. I'm Dr Chloë McRae Gilgan, and I'm happy to have contributed to this policy brief. As you said, I'm a senior lecturer at the University of Lincoln, specializing in international human rights law.
Ms Elfving: Hi, everybody. My name is Sanna Elfing. I am also a senior lecturer at the University of Lincoln Law School, with special expertise in the European Court of Human Rights and EU Law.
Interviewer: Thank you. There's been much talk about the Yalçınkaya decision. What is it exactly, and why is this decision so important?
Ms Gilgan: I don't mind taking the first question just because I think on some of the more detailed aspects, Sanna will be an excellent person to comment. Overall, the decision is pivotal for two broad reasons: substance and impact. First, in terms of substance, the court meaningfully upheld human rights by making clear that individual liberties must be better balanced with national security and that the latter does not trump human rights, even in times of political emergency. The court's ruling marked a pivotal moment, particularly concerning convictions related to the Gulen movements in Turkey.
The judgment highlighted systemic violations of convention rights, particularly Article 7, which embodies the principle of no crime and punishment without law, and Article 6, which is the right to a fair trial. Second, in terms of impact, this means that thousands of similar cases are likely to also result in findings of unlawful violations of European Convention rights. At the time of the judgment, there were approximately over 8,000 applications on the court's docket involving similar complaints under the right to a fair trial and no punishment without law. The ruling will have a profound impact on those individuals already wrongfully convicted under the same factors, as well as those yet to be prosecuted.
Interviewer: Thank you. You mentioned Bylock. What is it exactly, and how did Turkey violate the convention with regard to its handling of Bylock evidence as evidence of terrorist activity?
Ms Elfving: Bylock is an encrypted messaging application, which the Turkish authorities considered linked to the Gulen movement. Anyone using it was a potential suspect of these offenses. The Gulen movement was considered to be behind the attempted coup on July 15, 2016, because allegedly some of its members had infiltrated the Turkish Armed Forces. The court found a violation of Article 7, no punishment without law, and Article 6, the right to a fair trial, because the mere fact that individuals were using the Bylock app was over-relied upon as evidence of both intent and commission of terrorism.
This violated Article 6 because the overreliance on Bylock cases as an indicator of criminal intent and conduct was irrespective of any incriminating content. Individuals could have been sending any kind of messages on Bylock, not necessarily related to acts of terrorism. The problem was that those messages were used against people without examining their actual content.
Interviewer: Just to go into this, no punishment without law. What is it exactly, and how did the court find that Turkey violated this particular Article 7?
Ms Elfving: Article 7 safeguards individuals' rights against detrimental prosecution. In this case, the Turkish authorities were dealing with the aftermath of an attempted coup and used the state of emergency to violate Article 7, even though the European Convention of Human Rights allows derogation in terms of war or other public emergency, it explicitly forbids derogation of Article 7.
Article 7 requires that an offense be clearly defined in both written and unwritten law. For instance, legislation and case law need to be clear for the accused person so they know that an activity could result in prosecution. It also requires that personal liability be established, meaning there needs to be a clear intent to commit an offense. In this case, Turkish domestic law was insufficient to use the mere use of Bylock as evidence because the domestic court failed to establish all the requirements of the offense, particularly the necessary intent.
The Turkish courts had equated the mere use of Bylock with knowingly and willingly being a member of an armed terrorist organization. Therefore, convictions were secured without establishing all the constituent elements of the offense, violating the principle of legality and foreseeability at the core of Article 7. There was no other evidence to support the assumption of guilt because the content of the messages or the identity of the persons with whom the exchanges were made were not considered.
Interviewer: Would it be correct to say that the Turkish court never identified or established the mental or physical elements of a crime and held that the mere fact Mr. Yalçınkaya allegedly downloaded this messaging app was enough to convict him of a terrorist offense? Is that a fair summary?
Ms Elfving: Yes. The domestic courts also indicated that they considered his membership in an educational and trade association and his bank account with a specific bank but denied these were decisive. This left the mere use of the app as the main indication of committing terrorism.
Ms Gilgan: Absolutely. I think it brings us to the next question about the applicant's right to a fair trial. The court found a violation of Article 6 because there were insufficient safeguards to ensure Mr. Yalçınkaya had a genuine opportunity to challenge the evidence against him and conduct his defence effectively. The raw Bylock data collected by the intelligence services was not shared with Mr. Yalçınkaya, preventing him from challenging the validity of the inferences drawn from the data. The domestic courts also refused to submit the data for independent examination and verification, raising concerns over the reliability of the data and the process.
Interviewer: The court pointed out certain systemic issues regarding convictions based on Turkey's anti-terror laws. What sort of systemic issues did you identify in relation to that?
Ms Elfving: There are potential implications of this judgment outside Turkey as well because other countries have been criticized for using overly broad anti-terror laws. The ruling under Article 46 requires Turkey to address the systematic overreliance on the Bylock app as an indicator of criminal intent and conduct. There are likely to be thousands of pending cases resulting in similar outcomes. The European Parliament and other entities have highlighted issues with Turkey's human rights record, indicating a deliberate and systemic policy to suppress critical voices.
The parliamentary assembly of the Council of Europe has started a monitoring procedure to address these serious violations, and the Venice Commission has found concerns about the erosion of rule of law and judicial independence in Turkey.
Interviewer: Ms Gilgan, would you like to add anything to what Ms Elfving was saying?
Ms Gilgan: Yes, it brings us to the important question of what Turkey needs to do to fully comply with the decision. Article 46 of the European Convention on Human Rights holds the force of a constitutional rule in Turkey, and international human rights treaties must be granted preferential treatment over domestic law. Turkey must implement the judgment to avoid worsening its relationship with the Council of Europe.
Turkey needs to clarify the elements of a terrorist offense, cease using Bylock as an indicator of criminal intent, undertake retrials for those convicted based on Bylock without other substantive evidence, disclose electronic data used against defendants, ensure the reliability of electronic data, and address the systematic issues underlying its persistent human rights violations. Strengthening democratic institutions, such as an independent judiciary, and fixing overly vague anti-terror laws are essential steps.
Interviewer: Thank you very much indeed for being with us today, Dr Sanna Elfing and Dr Chloë McRae Gilgan. As you said, this is a pivotal case, and we will continue to monitor the steps being taken to ensure the implementation of this crucial judgment.
Ms Elfving and Ms Gilgan: Thank you.