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The Conviction Based on the ByLock Encrypted Messaging Application Violated the Right to a Fair Trial

posted 7 months ago

In the case Yüksel Yalçinkaya v. Turkey, the European Court of Human Rights on 26.9.2023 ruled that the Turkish authorities had violated the human rights set out in the Convention for the Protection of Human Rights and Fundamental Freedoms. Among the various violations found were also the right to a fair trial under Article 6.

The case.

The applicant was convicted as a participant in the armed terrorist organisation FETÖ/PDY, which was responsible for the attempted coup in July 2016. Among the evidence against the subject, the main one was the use of the ByLock encrypted messaging application, believed to have been designed by the terrorist organisation for the purpose of its communications and used exclusively by members of the organisation. On the basis of the information extracted by the national security services (MIT) on the application’s server, including the IP addresses of the persons connected to it, the investigation was initiated and the users of the ByLock application were charged with membership of the FETÖ/PDY.

The appeal to the ECHR.

The appellant objected to the disclosure of the electronic evidence, arguing that he was deprived of the opportunity to present his counter-arguments against the prosecution’s argument, which had based the wilful membership of the criminal organization mainly on the use of encrypted messaging application ByLock.

The right to a fair trial under Article 6 ECHR.

Article 6 ECHR states that everyone is entitled to a fair and public hearing, within a reasonable time, by an independent and impartial tribunal established by law, which is called upon to rule on disputes concerning his or her civil rights and obligations or on the merits of any criminal charge against him or her.

The issue addressed by the European Court of Human Rights.

The question addressed in the proceedings before the Grand Chamber of the Court was whether the proceedings as a whole, including the manner in which the evidence was obtained, were fair, in particular, whether the applicant was given the opportunity to challenge the evidence and oppose its use and whether the evidence produced against the defendant was presented in such a way as to ensure a fair trial because a fair trial presupposes adversarial proceedings and equality of arms.

The violations of Article 6 ECHR found by the European Court of Human Rights.

The Strasbourg Court found multiple violations of the right to a fair trial: the data collected by the security services were not included in the file and the applicant’s request for disclosure was disregarded; the bulk of the raw data of the ByLock application and information on how the ByLock user lists had been drawn up were not provided; the applicant’s request that such data be submitted to an independent examination for verification of their content and integrity was not entertained; the domestic court failed to respond to the arguments relating to the reliability of the evidence; the defence was not allowed to know the decrypted content of the intercepted communications, which were not made available.

The decision.

The European Court of Human Rights held that the domestic courts failed to put in place appropriate and sufficient safeguards to ensure that the applicant had a real opportunity to challenge the evidence against him, conduct his defence effectively and on an equal footing with the prosecution, effectively challenge the accusation and counter the salient issues of the case. Evidence obtained, electronic or otherwise, cannot be used by national courts in a way that would undermine fundamental principles of a fair trial.

The effectiveness of the ECHR and of ECHR decisions.

Governments that are signatories to the Convention are members of the Council of Europe, which through the Convention aims at achieving a greater unity between its members, including by maintenance and further realization of human rights and fundamental freedoms, which are the foundation of justice and peace in the world.

The Court’s judgments and decisions serve not only to decide those cases brought before it but, more generally, to elucidate, safeguard and develop the rules instituted by the Convention, thereby contributing to the observance by the States of the engagements undertaken by them as Contracting Parties.

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