Yüksel Yalçınkaya vs. Türkiye Judgment

§Summary and Importance of Decision

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In its decision on 26 September 2023, the ECHR decided that three different articles of the ECHR were violated regarding the applicant teacher Yüksel Yalçınkaya. The decision concerned the conviction of the Gulenists (called FETO/PDY), who were thought to be behind the coup attempt on July 15, 2016, as a terrorist organization. Mr. Yalçınkaya's conviction was based on the encrypted messaging application called "ByLock", which the local court ruled was designed for the exclusive use of Gulenists. In the decision, the Court ruled for violation of three different articles of the European Convention on Human Rights: Article 6 (right to a fair trial), Article 7 (No Punishment Without Law), and Article 11 (Freedom of Assembly and Freedom).

 

Thanks to the Judgment, millions of Turkish citizens who have been prosecuted, arrested, convicted, or given any kind of freedom-restraining punishments will be set free of all the charges, and this case represents the epic importance in that regard as it affects millions of Turkish Citizens.

 

§What the judgment means

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After these decisions, local prosecutorial authorities and courts, in accordance with the provisions of Article 90/5 of the Turkish Constitution, regarding the FETO/PDY trials, began to use legal acts such as Bylock use, union membership, association membership, but which were considered crimes or offenses after July 15, 2016. It will try to reconstruct the material and moral elements of the crimes that are the subject of the current investigation and trial, such as membership in, leadership of, or aiding a terrorist organization, against suspects, defendants, and even prisoners, without considering the activities considered as evidence.

 

As a result, it will be decided to release the detained defendants and acquit the defendants whose trial is still ongoing. Likewise, while the current investigations are terminated with a decision of non-prosecution, those who were given a final decision by the High Criminal Court will be able to demand retrial from the High Court reminding them of the Yüksel Yalçınkaya v. Turkiye Judgment, since the decision constitutes new evidence and a new phenomenon. They may request a retrial pursuant to Article 311/1(e) and they will be acquitted.

 

§ Main Arguments from the Decision

 

1. Pursuant to Article 90 § 5 of the Turkish Constitution, international agreements duly put into effect have the force of law, and no application can be made to the Constitutional Court to challenge their constitutionality. For this reason, Yalçınkaya v. Turkey's Judgment should be implemented immediately, and decisions of immediate release and acquittal should be given for the suspects and defendants.

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2. In the context of enforcement of decisions under Article 46 of the Convention, a decision in which the Court finds a violation of the Convention imposes on the respondent State an obligation to put an end to the violation found and to remedy its consequences so as to restore as far as possible the situation before the violation. (Yüksel Yalçınkaya v. Türkiye, par. 404)

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3. The conclusions reached in the Yüksel Yalçınkaya v. Turkiye Judgment are also valid for cases in similar situations. Therefore, in the context of the enforcement of judgments under Article 46 of the Convention, a decision in which the Court finds that there has been a violation of the Convention is an obligation on the respondent State, not only in the present case but also in similar cases, to put an end to the violation found and to restore as much as possible the situation before the violation. It imposes an obligation to compensate for the consequences in a way that restores them. (par. 418)

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4. In the indictments and convictions regarding the FETO/PDY trials, the principle of legality of crimes and penalties was violated by not explaining how the constituent elements of the alleged crimes such as membership in, leadership of, or aiding a terrorist organization were formed.

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5. The principle of no crime or punishment without law is a fundamental principle that cannot be suspended even during the state of emergency, in accordance with Article 15 of the Constitution and Article 15 of the ECHR.

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6. All trials carried out in the country regarding the use of Bylock are also a violation of the "Right to a Fair Trial".

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7. Legal activities that are in essence the exercise of a right and the exercise of a profession, such as union or association memberships, opening an account at BankAsya, providing education for children in legally operating private university preparatory courses or private schools, subscribing to some newspapers and magazines, membership in a terrorist organization or as evidence of any other crime.