Background
Eleven applicants were convicted in Türkiye of membership of the armed terrorist organisation known by the Turkish authorities as FETÖ/PDY, which they considered responsible for the attempted coup of 15 July 2016. The convictions rested decisively on findings that the applicants had used ByLock, an encrypted messaging application that the domestic authorities regarded as designed exclusively for members of FETÖ/PDY.
The prosecution evidence in some cases also included admissions or decrypted messages confirming ByLock use, affiliations with organisations viewed as connected to FETÖ/PDY, Bank Asya activity, witness evidence, communications records, social-media activity, employment, travel, donations, publications, or participation in organisational activities. In some proceedings, the courts convicted without awaiting detailed ByLock reports because they regarded proof of use alone as sufficient. The Turkish Constitutional Court summarily declared the applicants’ individual applications inadmissible.
The Court’s Holding
The European Court of Human Rights unanimously held that the convictions violated Article 7 of the Convention, which protects the principle of no punishment without law. Following Yüksel Yalçınkaya v. Türkiye and Demirhan and Others v. Türkiye, it found that the domestic courts had treated mere ByLock use as conclusive proof of every element of membership in an armed terrorist organisation, effectively imposing objective liability.
The Court acknowledged that other evidence in some files might establish the required organisational link through the continuity, diversity, and intensity of an applicant’s activities and submission to the organisation’s hierarchy. That possibility did not cure the Article 7 problem created by treating ByLock use, by itself, as sufficient for conviction. Because that finding addressed the main legal issue and allowed the applicants to seek reopening, the Court did not separately examine the Article 6 complaints or the remaining Convention claims.
The finding of a violation constituted sufficient just satisfaction for non-pecuniary damage. The Court awarded no costs and expenses and indicated that reopening the domestic proceedings in conformity with the judgment’s conclusions and spirit would, if requested, generally be the most appropriate redress.
Key Takeaways
- Proof that a defendant used ByLock cannot, without more, conclusively establish every element of membership in an armed terrorist organisation.
- ByLock evidence may still be considered alongside other evidence capable of establishing the organisational link required under domestic law.
- The applicants may seek reopening under Article 311 § 1 (f) of Türkiye’s Code of Criminal Procedure; the Court made no monetary award for non-pecuniary damage or costs.
Why It Matters
The judgment applies the systemic reasoning of Yüksel Yalçınkaya to eleven additional ByLock-related convictions. It confirms that the Article 7 defect arises from the Turkish courts’ uniform treatment of ByLock use as independently conclusive, rather than from facts unique to a single prosecution.
In any reopened proceedings, domestic courts may assess ByLock together with the rest of the evidentiary record, but they cannot substitute proof of mere use for an individualized determination that all constituent elements of the charged offence were established.