“Da mihi factum dabo tibi ius – Give me the facts, and I’ll tell you what’s right. The authorities in the Republic of Turkey have been conducting inquisition proceedings for years, in which the accused have almost no chance of defending themselves. Good Bosnians who do not understand the importance of procedural guarantees in such procedures and who do not know where the billions donated to Bosnia and the people of Bosnia are, know who is a terrorist and who is not in the Republic of Turkey and know how to rejoice and support legal violence,” respectful Sarajevo lawyer Nedzad Beca stated on his Facebook post on Wednesday, referring to the appearance of BiH Minister of Defense Zukan Helez on Face TV on Friday.
He adds that certain Bosnian politicians who do not see how their “friends” are destroying the party “right in front of their noses” see what every person whom the Turkish government says is a terrorist is doing, Beca said, referring to the decision of the European Court of Human Rights, where it found numerous violations of basic human rights in proceedings conducted against people labeled as Gulenists/FETO-ists and the like.
He adds that the procedures were conducted and ended with gross violations of basic human rights in Turkey and concluded that, for the people of Turkey these are fateful questions.
“Fiat iustitia et pereat mundus – Let there be justice even if the world perishes,” Beca concluded.
In today’s Grand Chamber judgment in the case of Yüksel Yalçınkaya v. Türkiye, the European Court of Human Rights held by 11 votes to 6, that there had been a violation of no punishment without law of the European Convention on Human Rights, that there had been a violation of right to a fair trial of the European Convention, and that there had been a violation freedom of assembly and association of the Convention.
The case concerned the conviction of a former teacher for membership of an armed terrorist organisation, namely the FETÖ/PDY, formerly known as the “Gülen movement” and considered by the Turkish authorities to be behind the attempted coup d’état of 15 July 2016.
Mr Yalçınkaya’s conviction had been based decisively on his use of the encrypted messaging application called “ByLock”, which the domestic courts held had been designed for the exclusive use of FETÖ/PDY members under the guise of a global application.
Indeed, anyone who had used Bylock could, in principle, be convicted on that basis alone of membership of an armed terrorist organisation. 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.
There are currently approximately 8,500 applications on the Court’s docket involving similar complaints under Articles 7 and/or 6 of the Convention and, given that the authorities had identified around 100,000 ByLock users, many more might potentially be lodged.
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.
The applicant’s alleged use of ByLock constituted decisive evidence for his conviction, based on the finding that the encrypted messaging system had been exclusively used by FETÖ/PDY, under the guise of a global application.
Corroborating evidence was his use of an account at Bank Asya, and his membership of the trade union Aktif Eğitim-Sen and the Kayseri Voluntary Educators Association, that were considered to be affiliated with the FETÖ/PDY, the ECHR stated in the decision.
