Background
The Court joined 345 applications concerning convictions for membership of the organisation Turkish authorities call the FETÖ/PDY. The applicants had been convicted under Article 314 § 2 of the Criminal Code, in the post-2016 coup-attempt context.
The decisive evidence was the applicants’ alleged use of ByLock, an encrypted messaging application that domestic courts treated as designed exclusively for FETÖ/PDY members. Some files also contained other material, including admissions or message content, witness evidence, Bank Asya activity, alleged organisational affiliations, travel, communications records, employment, and social-media material. The Constitutional Court summarily declared the individual applications inadmissible.
The Court’s Holding
Unanimously, the Court found violations of Article 7 and Article 6 § 1. It followed its Grand Chamber judgment in Yüksel Yalçınkaya v. Türkiye and its subsequent judgment in Demirhan and Others v. Türkiye, concluding that domestic courts had treated proof of ByLock use alone as conclusive proof of every element of membership in an armed terrorist organisation.
That approach effectively imposed objective liability on ByLock users and breached the principle of legality under Article 7. It also made the proceedings unfair under Article 6 § 1 because the courts did not provide adequate safeguards enabling the applicants effectively to challenge the ByLock evidence, address the core issues, or obtain adequately reasoned decisions. The Court did not examine the remaining complaints.
Key Takeaways
- ByLock use cannot, by itself, conclusively establish membership of an armed terrorist organisation consistently with Article 7.
- Even where additional evidence existed, the domestic courts’ uniform treatment of ByLock infected the fairness of these proceedings.
- The finding of violations was sufficient just satisfaction for non-pecuniary damage; no costs award was made.
Why It Matters
The judgment extends the Court’s established ByLock jurisprudence to a further 345 applicants. It confirms that the defect was systemic rather than confined to the facts of one prosecution.
The Court noted that applicants may seek reopening under Article 311 § 1 (f) of the Turkish Code of Criminal Procedure. Reopening compatible with the judgment’s conclusions and spirit would, in principle, be the appropriate remedy.