Conviction based on app use violated Turkish teacher’s rights – ECHR

This article was originally published in Turkish

The European Court of Human Rights (ECHR) ruled on Tuesday that a Turkish teacher convicted in 2017 of terrorism offences had his rights violated because the case against him relied mostly on his use of an encrypted messaging application. The court’s decision could apply to thousands of other Turks who were jailed following a failed coup attempt in 2016.

Almost seven years after the attempted coup in 2016, the Strasbourg court ruled Tuesday that the former teacher Yuksel Yalcinkay’s rights were violated in three instances: Article 6, article 7 and article 11 on freedom of assembly and association.

In its ruling, the ECHR said Turkey’s conviction of Yalcinkaya was “based decisively” on his alleged use of ByLock, an encrypted messaging system that Turkish courts have said was designed for use by Gulen followers.

Fethullah Gülen is a U.S.-based preacher and former AK party ally, whom Erdoğan accuses of inciting the failed coup in 2016.

Criticising the court’s judgement, Turkish Minister of Justice Yılmaz Tunç dismissed the decision as unacceptable.

“It is unacceptable for the ECtHR to overstep its jurisdiction and issue a judgement of violation by examining the evidence in a case where our judicial authorities at all levels have deemed the evidence sufficient” said the minister on X platform.

According to stament from the Grand Chamber of the European Court of Human Rights, Mr Yalçınkaya’s conviction had been based decisively on his use of the encrypted messaging application, which the domestic courts held had been designed for the exclusive use of “FETÖ/PDY” members under the guise of a global application.

The Court held that such a uniform and global approach by the Turkish judiciary vis-à-vis the ByLock evidence departed from the requirements laid down in national law in respect of the offence in question and was contrary to the object and purpose of Article 7 which is to provide effective safeguards against arbitrary prosecution, conviction and punishment.

Speaking to euronews, the plaintiff’s lawyer Johan Heymans described the judgement “as a milestone decision” and said it should set a precedent for similar cases in Turkey.

Heymans said that there are currently 8,500 files pending before the ECtHR.

In 2016 Mr Yalçınkaya, then a teacher, was arrested on suspicion of being a member of an organisation described by the Turkish authorities as the “Fetullahist Terror Organisation / Parallel State Structure” (Fetullahçı Terör Örgütü / Paralel Devlet Yapılanması – “FETÖ/PDY”). 

Following his placement in pre-trial detention, a bill of indictment was lodged in 2017, which cited, among other things, use of the ByLock telephone application, suspicious banking activity, membership of a trade union and an association that supposedly had terrorist links, and mentioned an anonymous informant.

The case went to trial, with Mr Yalçınkaya being found guilty in 2017 and sentenced to six years and three months’ imprisonment. Subsequently, the Ankara Regional Court of Appeal and the Court of Cassation upheld Mr Yalçınkaya’s conviction. Ultimately, in 2019, the Constitutional Court rejected as inadmissible an application lodged by him in the case.

Additional sources • Reuters