Information Note on the Court’s case-law 262

May 2022

Yalçınkaya v. Turkey (relinquishment) - 15669/20

Article 6

Criminal proceedings

Article 6-1

Fair hearing

Fairness of conviction of membership of the Fetullahist terrorist organisation mainly on the basis of purported use of encrypted messaging application: relinquishment in favour of the Grand Chamber

The applicant, a teacher at a public school, was convicted of membership of the terrorist “Fetullahist Terrorist Organisation / Parallel State Structure” (FETÖ/PDY), which was considered by the domestic authorities to be behind the attempted coup of 15 July 2016. His conviction was mainly on the basis of evidence indicating his use of Bylock, an encrypted messaging application, which had been accessed by the National Intelligence Agency of Turkey as part of its intelligence activities to gather information on FETÖ/PDY. The applicant was sentenced to six years and three months’ imprisonment. He unsuccessfully appealed.

The applicant complains under Article 6 §§ 1 and 3 that (i) he was not tried by independent and impartial tribunals; (ii) he was convicted on the basis of evidence unlawfully obtained by the National Intelligence Agency in disregard of the procedural safeguards set out in the Code of Criminal Procedure and without a court order; (iii) the unlawfully obtained evidence in question was assessed arbitrarily and 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) the objections and requests that he made before the appeal court and the Court of Cassation, within the framework of his right to adversarial proceedings, equality of arms and right to a fair trial, were ignored by those courts in judgments that lacked any reasoning; and (v) he was denied the right to effective legal assistance. The applicant further complains under Article 7 that he was convicted on the basis of acts that did not constitute a crime and in the absence of the requisite mens rea , which suggested an extensive and arbitrary interpretation of the relevant laws. Lastly, invoking Articles 8 and 11, the applicant complains that both the information concerning his alleged use of ByLock, and his internet traffic data, was retained and used 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.

On 3 May 2022 a Chamber of the Court relinquished jurisdiction in favour of the Grand Chamber.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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