Communicated on 19 February 2021 Published on 8 March 2021

SECOND SECTION

Application no. 15669/20 Yüksel YALÇINKAYA against Turkey lodged on 17 March 2020

SUBJECT MATTER OF THE CASE

The application concerns the conviction of the applicant for membership of a terrorist organisation, namely FET Ö /PDY (Fetullahist Terrorist Organisation / Parallel State Structure).

The applicant, a teacher at a public school at the material time, was dismissed from civil service by way of Legislative Decree no. 672 (promulgated on 1 September 2016), on account of his connection with a terrorist organisation (see Zihni v. Turkey (dec.), no. 59061/16, §§ 4-7, 29 November 2016 for further background information and details on Legislative Decree no. 672).

On 6 September 2016 the applicant was arrested on suspicion of membership of FETÖ/PDY and on 9 September 2016 he was placed in pre ‑ trial detention.

On 6 January 2017 the Kayseri public prosecutor filed a bill of indictment against the applicant with the Kayseri Assize Court, accusing the applicant of membership of the armed terrorist organisation FETÖ/PDY under Article 314 § 2 of the Criminal Code. The accusation was based on the following evidence: (i) use of the application ByLock, which had been developed for the exclusive use of the members of FETÖ/PDY for their internal organisational communication, at the “orange” level; (ii) account activities at Bank Asya; (iii) membership of a trade union and an association both of which had been declared in Legislative Decree no. 667 as belonging to, affiliated with or connected to FETÖ/PDY; (iv) dismissal from public service by way of Legislative Decree no. 672; and (v) information received from an anonymous informant.

At the first hearing held on 21 March 2017, the Kayseri Assize Court convicted the applicant as charged and sentenced him to six years and three months ’ imprisonment on the basis of the following evidence: (i) information provided by the Kayseri Security Directorate that the applicant had used ByLock from his personal mobile phone from 3 October 2015 onwards; (ii) membership of a trade union and an association affiliated with FETÖ/PDY; (iii) depositing 3,110 Turkish liras (TRY) (approximately 1,000 euros (EUR) at the material time) to Bank Asya in February 2014 in accordance with the calls made by the organisation in support of the bank and in proportion with his income.

On 9 October 2017 the Ankara Regional Appeal Court dismissed the applicant ’ s appeal request. In addition to the evidence available at the first instance stage, the appeal court relied on HTS ( Historical Traffic Search ) records provided by the Information Technologies and Communication Authority ( Bilgi Teknolojileri ve İletişim Kurumu , “the BTK”) and a report dated 29 June 2017 prepared by a digital forensics expert on the digital data collected as regards the applicant, which indicated that the applicant had connected to the ByLock server ’ s IP address on six different days between 3 and 23 October 2015 for a total of 380 times.

On 30 October 2018 the Court of Cassation upheld the applicant ’ s conviction, and on 26 November 2019 the Constitutional Court summarily dismissed the applicant ’ s individual application as inadmissible.

The applicant mainly complains under Article 6 §§ 1 and 3 that (i) he was not tried by independent and impartial tribunals, alleging in particular that the principle of irremovability of judges had been eroded on account of certain legislative and factual developments that took place in the aftermath of the coup attempt; (ii) that he was convicted on the basis of evidence unlawfully obtained by the National Intelligence Organisation (M İ T) in disregard of the procedural safeguards set out under Articles 134 and 135 of the Code of Criminal Procedure and without a court order; (iii) that the unlawfully obtained evidence in question was not made available to his examination, nor was it subjected to direct and independent examination by the domestic courts, and the courts had relied exclusively on the unilateral assessment of the prosecution and other public officials on that evidence, in violation of the principle of equality of arms and adversarial proceedings; (iv) that the appeal courts failed to provide sufficient reasons for their decisions and to respond to his requests and objections; and (v) that he was denied the right to effective legal assistance having regard to the restrictions imposed by Article 6 (d) of Legislative Decree no. 667 on his communication with his lawyer.

Invoking Articles 7, 8 and 11, the applicant further complains that he was convicted on the basis of acts that did not constitute a crime, due to an extensive and arbitrary interpretation of the relevant laws; that both the information concerning his alleged use of ByLock, and his internet traffic data, was retained and disclosed unlawfully in violation of his right to private life; and that membership of a trade union and association was used as evidence for his conviction in violation of his right to freedom of association.

QUESTIONS TO THE PARTIES

Article 6

1. Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 §§ 1 and 3 of the Convention? In particular;

( a ) What was ByLock messaging application and what were the reasons which led the domestic judicial authorities to conclude that it was exclusively used by the members of FETÖ/PDY?

The parties are invited to explain the evidentiary value of a person ’ s use of this application in the context of the proceedings concerning membership of FETÖ/PDY, and to support their response with relevant judgments delivered by the Constitutional Court and the Court of Cassation in this respect .

( b ) What was the evidentiary basis for the domestic courts ’ finding that the applicant had used the ByLock messaging application?

The Government are requested to provide the Court with a copy of all the material in the case file on which the domestic courts have relied as evidence of the applicant ’ s use of ByLock, including any digital data and any documents showing the content of the applicant ’ s communication over that application .

( c ) What are the statutory provisions under Turkish law regulating the collection, examination and use of evidence, including electronic and digital evidence, in criminal proceedings? Did the domestic authorities comply with those provisions in so far as the ByLock evidence is concerned?

( d ) In light of the applicant ’ s claims, was the evidence concerning the applicant ’ s use of ByLock obtained lawfully, having regard (i) to the manner in which it was procured by the National Intelligence Organisation ( Milli İstihbarat Teşkilatı , “MİT”), and (ii) to the allegation that the internet traffic information provided by the Information and Communication Technologies Authority ( Bilgi Teknolojileri ve İletişim Kurumu , “BTK”) was not retained and disclosed lawfully, as it included information that predated the maximum time-limit set out in the law for the retention of such data?

( e ) Was the evidence concerning the applicant ’ s use of ByLock sufficiently reliable? In particular;

( i ) To what extent was the digital evidence obtained regarding the applicant a reliable indicator of his use of ByLock, from a technical point of view? Did the domestic courts sufficiently assess the reliability of the digital evidence presented to it by the prosecution and did they respond to the applicant ’ s concerns regarding the reliability of that data?

( ii ) What safeguards were available in domestic law to protect the integrity and authenticity of the ByLock data obtained by the MÄ°T during the period preceding its submission to the prosecution authorities, given that the relevant procedural safeguards envisaged under the Criminal Code of Procedure were not found by the domestic courts to have any application during that initial period?

The Government are requested to explain what the raw data obtained by the MÄ°T involved, and how the MÄ°T processed that data to identify the individual users of ByLock, including the applicant, before handing the relevant data over to the prosecution authorities .

( f ) In view of the applicant ’ s allegation that he could not obtain a copy of the ByLock data, was the applicant provided with a real and effective opportunity (i) to have knowledge of and comment on all digital evidence adduced or observations filed by the prosecution in that respect with the domestic courts; (ii) to review all material evidence in the possession of the prosecution for or against him/her; and (iii) to challenge the authenticity and reliability of the digital evidence used against him/her and to oppose its use as required by the principles of equality of arms and adversarial proceedings (see, for instance, Rook v. Germany , no. 1586/15, §§ 56-59, 25 July 2019)? In this connection;

( i ) What information and documents did the applicant have available to him in the case file as proof of his use of ByLock? Was that information available prior to his conviction by the first-instance court, or was some of the material evidence corroborating his use of ByLock added to the file at the appeal stage?

( ii ) Did the domestic legal framework and case-law provide for a right to obtain a copy of the digital data in the possession of the prosecution? If so, was it complied with on the facts of the present case? Moreover, is there a right under Turkish law to examine and take a copy of the relevant digital evidence when such evidence forms part of the criminal proceedings other than those against the applicant?

( iii ) In this context, did the applicant ’ s alleged inability to review the evidence handed over by the MÄ°T to the prosecution authorities put the defence at a disadvantage vis-à-vis the prosecution? If so, were the alleged difficulties caused to the defence sufficiently counterbalanced by the procedures followed by the judicial authorities (see, mutatis mutandis , Rowe and Davis v. the United Kingdom [GC], no. 28901/95, § 61, ECHR 2000 ‑ II; Sigurður Einarsson and Others v. Iceland , no. 39757/15, §§ 90 and 91, 4 June 2019; Rook , cited above, §§ 67 and 72)?

The Government are requested to submit copies of any domestic court decisions whereby the defence was, upon their request, given a copy of the relevant ByLock data where the originals of such data formed part of other criminal proceedings to which the applicant was not a party, and copies of decisions where such request was denied.

( iv ) Was the data regarding the applicant ’ s use of ByLock, including that provided by the MİT and the BTK, submitted to an independent expert examination as requested by the applicant, in order to determine the integrity, the accuracy and the consistency of the data obtained?

( v ) From a technical perspective, would it have been possible for the applicant to exonerate himself of the allegations against him or to have his sentence reduced on the sole basis of the information and documents made available to him?

The Government are requested to provide examples of cases, besides the “Mor Beyin” incident, where the technical data indicating the use of ByLock was successfully rebutted by a defendant on the basis of the information available in the case file.

( g ) Did the Ankara Regional Appeal Court and the Court of Cassation provide sufficient reasoning for their judgments and respond to the main arguments raised by the applicant?

The parties are requested to provide all the petitions submitted by the applicant to the domestic courts during the criminal proceedings and all interim decisions taken by the domestic courts .

2. Was the applicant ’ s right to have a confidential communication with his/her lawyer under Article 6 § 3 (c) of the Convention restricted by virtue of the measures provided for by Article 6 of Legislative Decree no. 667? If so, what were the compelling reasons for such limitation? Did this restriction deprive the applicant of a fair hearing (see, for instance, S. v. Switzerland , 28 November 1991, § 48, Series A no. 220; Brennan v. the United Kingdom , no. 39846/98, § 58, ECHR 2001 ‑ X; Rybacki v. Poland , no. 52479/99, § 61, 13 January 2009; Sakhnovskiy v. Russia [GC], no. 21272/03, §§ 97 and 102, 2 November 2010; Khodorkovskiy and Lebedev v. Russia , nos. 11082/06; and 13772/05, §§627-629 and 632-641, 25 July 2013)?

3. Having regard to the applicant ’ s submissions regarding certain factual developments that took place since 2014, were the courts that dealt with the applicant ’ s case “independent and impartial”, within the meaning of Article 6 § 1 of the Convention? What safeguards were there available in Turkish law against outside pressures on the domestic courts that heard the applicant ’ s case? In particular;

( a ) Did certain legislative developments pertaining to the judiciary that took place in the aftermath of the attempted coup – such as the changes in the structure and composition of the Court of Cassation, the structural changes made in the composition of the High Council of Judges, or the possibility of removal of judges from duty by decision of High Council of Judges as per Article 3 of Legislative Decree no. 667 – undermine the principle of irremovability of judges as alleged by the applicant in a manner that amounted to an infringement of the applicant ’ s right to an independent and impartial tribunal?

( b ) Were the domestic courts that dealt with the applicant ’ s case independent, having regard to the applicant ’ s factual allegations concerning the measures taken against a number of judges who were considered to have rendered judgments or decisions perceived to be in favour of alleged members of FETÖ/PDY?

Article 7

1. In light of the relevant domestic provisions and their interpretation by the domestic courts at the material time, did the conviction for membership of a terrorist organisation hinge upon the existence of a prior judicial decision declaring FETÖ/PDY as a terrorist organisation (see Parmak and Bakır v. Turkey , nos. 22429/07 and 25195/07, § 71, 3 December 2019; and compare and contrast Kasymakhunov and Saybatalov v. Russia , nos. 26261/05 and 26377/06, §§84 and 90 14 March 2013)? In this respect, what, if any, is the relevance of the Court of Cassation ’ s judgment of 24 June 2008, whereby it acquitted Fetullah Gülen of the charges of founding or leading a terrorist organisation, from the perspective of the applicant ’ s complaints under Article 7?

The Government are requested to provide a copy of the Court of Cassation ’ s judgment of 24 June 2008 concerning Fetullah Gülen.

2. Was the applicant ’ s conviction for membership of a terrorist organisation compatible with the requirements of Article 7 of the Convention? In particular;

( a ) Were the domestic legal provisions, on the basis of which the applicant had been convicted, foreseeable in their application? In that connection, could the domestic courts ’ interpretation of FETÖ/PDY as a terrorist organisation be reasonably foreseen by the applicant at the time of the acts on which his conviction rested?

( b ) What are the elements of the offence of membership of a terrorist organisation set out under Article 314 § 2 of the Criminal Code, and were those elements present in the applicant ’ s case? In particular, did the domestic courts duly establish whether the mental element of the relevant offence, as laid down in the case-law of the Court of Cassation, had materialised in the applicant ’ s case, as required under Article 7 of the Convention (see, for instance, G.I.E.M. S.R.L. and Others v. Italy [GC], nos. 1828/06 and 2 others, §§ 242 and 246, 28 June 2018)?

The parties are requested to submit the relevant case-law of the Court of Cassation setting out the material elements of the crime of membership of a terrorist organisation under Article 314 § 2 of the Criminal Code .

( c ) Was the conviction in question imposed in the absence of any criminally reprehensible conduct on the part of the applicant, as argued by him?

( d ) Could the applicant have reasonably foreseen at the material time that the acts attributed to him (i.e. use of ByLock, depositing money to Bank Asya, and membership of a legally recognised trade union and association) would be construed as evidence of the offence of “membership of an armed organisation” under Article 314 § 2 of the Criminal Code? Did the application of that provision in the circumstances of the applicant ’ s case extend the scope of criminal liability for the offence in question in breach of the principle of legality? In any event, was the national courts ’ interpretation of Article 314 § 2 of the Criminal Code to the facts of the applicant ’ s case consistent with the essence of that offence and could it be reasonably foreseen (see, S.W. v. the United Kingdom , 22 November 1995, § 36, Series A no. 335 ‑ B; Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96 and 2 others, § 50, ECHR 2001 ‑ II; Jorgic v. Germany , no. 74613/01, § 109, ECHR 2007 ‑ III and Vasiliauskas v. Lithuania [GC], no. 35343/05, § 155, ECHR 2015)?

The Government are requested to provide the case-law of the Court of Cassation where the material elements of the offence of membership to a terrorist organisation under Article 314 § 2 of the Criminal Code comprised of lawful acts, as alleged by the applicant in the present case.

Article 8

( a ) Did the information used to prove the applicant ’ s use of ByLock fall within the scope of his right to respect for his/her “private life” or “correspondence” as guaranteed under Article 8 § 1 of the Convention? If so, did the compiling of that information by various national authorities amount to an interference with that right within the meaning of the first paragraph of that provision?

( b ) In the affirmative, was the interference justified under Article 8 § 2? In particular;

( i ) Having regard to the applicant ’ s allegation that the relevant data was collected in breach of Articles 134 and 135 of the Code of Criminal Procedure and the relevant provisions of the Law on Intelligence Services of the State and the National Intelligence Agency, on what legal basis did the MİT obtain and process the relevant data? Did the law in question satisfy the requirements of “lawfulness” within the meaning of Article 8 § 2 of the Convention, including in terms of its accessibility, foreseeability and compliance with the rule of law (see, for instance, Benedik v. Slovenia , no. 62357/14, §§ 124-134, 24 April 2018)? What safeguards were available under the relevant law and practice against arbitrary interference and abuse?

( ii ) Was the data provided by the BTK regarding the applicant ’ s phone and internet traffic records retained and disclosed in accordance with the relevant domestic law, having particular regard to the applicant ’ s allegation that the data in question included information that predated the maximum time-limit set out in the law for its retention? What safeguards were available under the relevant law and practice against arbitrary interference and abuse?

The Government are requested to submit all relevant information regarding the manner in which the applicant ’ s phone and internet traffic records were obtained, including any court orders issued for the obtaining of such information from the service providers .

Article 11

Did the applicant ’ s conviction for membership of a terrorist organisation on the basis of, inter alia , his membership of an association and a trade union constitute an interference with his right to freedom of association within the meaning of Article 11 of the Convention? If so, was that interference justified under the second paragraph of that provision?