CEDH · CASELAW;CLIN;ENG — 26 septembre 2023

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Türkiye [GC] - 15669/20 Judgment 26.9.2023 [GC] Article 7 Article 7-1 Nulla poena sine lege Nullum crimen sine lege Conviction for membership of an armed terrorist organisation based decisively on use of encrypted messaging application ByLock, without establishing offence’s constituent material and mental elements in an individualised manner: violation Article 6 Criminal proceedings Article 6-1 Fair hearing Prejudice to the defence on account of non-disclosure of raw data obtained from ByLock server not counterbalanced by adequate procedural safeguards: violation Article 46 Article 46-2 Execution of judgment General measures Respondent state required to take general measures to address systemic problem regarding domestic courts’ approach to use of ByLock Facts – The applicant, a teacher at a public school at the material time, was convicted of the offence of membership of an armed terrorist organisation, namely the “Fetullahist Terror Organisation/Parallel State Structure” (FETÖ/PDY) which was considered by the domestic authorities to be behind the attempted coup of 15   July 2016. His conviction was based decisively on his use of an encrypted messaging application, “ByLock”, which had been accessed by the National Intelligence Agency of Turkey (MİT) as part of its intelligence activities to gather information on FETÖ/PDY and which the domestic courts held had been designed for the exclusive use of its members under the guise of a global application. The applicant was sentenced to six years and three months’ imprisonment. He unsuccessfully appealed. On 3   May 2022 a Chamber of the Court relinquished jurisdiction in favour of the Grand Chamber. Law – Article   15 ( general aspect – the derogation by Türkiye ): The Court saw no reason to depart from its finding in previous cases against Türkiye that the attempted military coup had amounted to a “public emergency threatening the life of the nation” within the meaning of the Convention and that the formalities required by Article   15 §   3 had been respected. Whether the specific actions taken against the applicant had been strictly required by the exigencies of the situation and consistent with the respondent State’s other obligations under international law, would be considered with the merits of the complaints. Article   7: The Court reiterated that the requirement of accessibility and foreseeability entailed that, in principle, a measure could only be regarded as a penalty within the meaning of Article   7 where an element of personal liability on the part of the offender had been established. Accordingly, Article   7 required, for the purposes of punishment, the existence of a mental link through which an element of liability might be detected in the conduct of the person who physically committed the offence. The applicant’s conviction for membership of an armed terrorist organisation had been based on Article   314 §   2 of the Criminal Code, read in conjunction with the Prevention of Terrorism Act and the relevant case-law of the Court of Cassation. That legal framework was, in principle, formulated with sufficient precision to enable an individual to know, if need be with appropriate legal advice, what acts and omissions would make him criminally liable. The main question was whether his conviction had been sufficiently foreseeable given the requirements of the domestic law, in particular as regards the cumulative constituent material and mental elements of the offence such as they appeared in the relevant legal framework. The Court emphasised that it was not sufficient for the purposes of Article   7 that an offence was set out clearly in domestic law. A failure on the part of the domestic courts to comply with the relevant law, or an unreasonable interpretation and application thereof in a particular case, could in itself entail a violation of Article   7. The requirement that criminal offences be strictly defined by law would be thwarted if the domestic courts were to circumvent the law in its interpretation and application to the specific facts of a case. The definition of the crime of being a member of an armed terrorist organisation under the domestic legal framework required specific knowledge and intent. In particular, it had to be proven that the accused had an organic link with the organisation based on the continuity, diversity and intensity of his or her activities and that he or she knew that the organisation was one that committed or aimed to commit, crimes and had to possess a specific intent for the realisation of that purpose. Conviction for the offence would only follow where it was demonstrated that the accused had acted knowingly and willingly within the organisation’s hierarchical structure and embraced its objectives. The Court acknowledged that ByLock was not just any ordinary commercial messaging application and that its use could prima facie suggest some kind of connection with the Gülen movement. However, the act penalised under Article   314 §   2 was not mere connection with an allegedly criminal network, but membership of an armed terrorist organisation, to the extent that such membership was established on the basis of the constituent – objective and subjective – elements set out in the law. The applicant’s conviction had stemmed from his alleged use of the ByLock application; all of the constituent elements of the relevant offence had been considered to be manifested through that alleged use, which had been taken as sufficient in itself to establish his membership of an armed terrorist organisation and notably of the requisite mental link allowing his personal criminal liability to be established. Admittedly, the assessment of the relevance or the weight attached to a particular piece of evidence was not, in principle, within the remit of the Court under Article   7. However, over and above its evidentiary value, the finding regarding the use of ByLock had effectively replaced an individualised finding as to the presence of the constituent material and mental elements of the offence, thereby bypassing the requirements of Article   314 §   2 – as interpreted by the Turkish Court of Cassation itself – in contravention of the principle of legality and bringing the matter within the realm of Article   7. The remaining acts that had been attributed to the applicant – namely his use of an account at Bank Asya and membership of a trade union and an association – had served only as a source of corroboration and had very limited bearing on the outcome of the proceedings. Although the use of ByLock was neither criminalised nor technically not part of the actus reus of the impugned offence, the domestic courts’ interpretation had had in practice the effect of equating the mere use of ByLock with knowingly and willingly being a member of an armed terrorist organisation. The fact that the applicant’s conviction had been secured without duly establishing the presence of all constituent elements of the offence (including the necessary intent) in an individualised manner, was not only incompatible with the essence of the offence in question but was also irreconcilable with the right of an individual, under Article   7, not to be punished without the existence of a mental link through which an element of personal liability might be established. The expansive and unforeseeable interpretation of the law by the domestic courts had had the effect of imputing objective liability to the users of ByLock, departing from the requirements clearly laid down in domestic law and contravening the object and purpose of Article   7 to provide effective safeguards against arbitrary prosecution, conviction and punishment. Although, the Court acknowledged the significant challenges involved in accessing the content of secure communications used by organisations operating in secrecy, attaching criminal liability, in a virtually automatic manner, to those who had previously used that tool, had been against the principles of legality and foreseeability that were at the core of the protection under Article   7. The Court was also acutely aware of the difficulties associated with the fight against terrorism and those that States encountered in the light of the changing methods and tactics used in the commission of terrorist offences. It had already acknowledged the unique challenges faced by the Turkish authorities and courts in the context of their efforts against the FETÖ/PDY, having regard to the atypical nature of that organisation, which, according to the domestic authorities and courts, pursued its aims covertly rather than through traditional terrorist methods. In that connection, it recognised the urgency and severity of the situation that the authorities and courts had had to grapple with in the aftermath of the coup attempt. None of those considerations, however, meant that the fundamental safeguards enshrined in Article   7, which was a non-derogable right that was at the core of the rule of law principle, might be applied less stringently when it came to the prosecution and punishment of terrorist offences, even when allegedly committed in circumstances threatening the life of the nation. The Convention required the observance of the Article   7 guarantees, including in the most difficult of circumstances. It was up to the States to adapt their terrorism laws to be able to combat effectively the evolving threats of terrorism and non-traditional terrorist organisations, within the bounds of the nullum crimen, nulla poena sine lege principle. Conclusion : violation (eleven votes to six). Article   6 §   1 ( the evidence regarding the applicant’s alleged use of Bylock) : The Court acknowledged that electronic evidence had become ubiquitous in criminal trials in view of the increased digitalisation of all aspects of life. Recourse to electronic evidence attesting that an individual was using an encrypted messaging system which had been specially designed for and used exclusively by a criminal organisation in the internal communications of that organisation, could be very important in the fight against organised crime. It also noted that electronic evidence differed in many respects from traditional forms of evidence and raised distinct reliability issues as it was inherently more prone to destruction, damage, alteration or manipulation. The Court further reiterated that the use of untested electronic evidence in criminal proceedings might involve difficulties for the judiciary as the nature of the procedure and technology applied to the collection of such evidence was complex and might therefore diminish the ability of national judges to establish its authenticity, accuracy and integrity. Moreover, the handling of electronic evidence, particularly where it concerned data that was encrypted and/or vast in volume or scope, might present the law enforcement and judicial authorities with serious practical and procedural challenges at both the investigation and trial stages. That said, those factors did not call for the safeguards under Article   6 §   1 to be applied differently, be it more strictly or more leniently. The Court had to assess whether the overall fairness of the proceedings had been ensured through the lens of the procedural and institutional safeguards and the fundamental principles of a fair trial. (a) Quality of the evidence – Although the Court recognised that the circumstances in which the Bylock data had been retrieved by the MİT prima facie raised doubts as to its “quality” in the absence of specific procedural safeguards geared to ensuring its integrity until the handover to the judicial authorities, it did not have sufficient elements to impugn the accuracy of the ByLock data – at least to the extent that it had established the applicant’s use of that application. (b) The applicant’s ability to challenge the evidence in proceedings that complied with the guarantees of Article   6 §   1 – The fact that the applicant had had access to all the ByLock reports included in the case file did not necessarily mean that he had had no right or interest to seek access to the data from which those reports had been generated. The ByLock data in question had been critical in his case, as it was that which triggered the criminal proceedings against him. Essentially, it had served not only to gather the individualised information on the applicant’s alleged use of ByLock but had also constituted the basis for it to be characterised as an exclusively organisational communication tool and had thus led directly to the applicant’s conviction. Moreover, it might not be excluded that the ByLock material had potentially contained elements which could have enabled the applicant to exonerate himself, or to challenge the admissibility, reliability, completeness or the evidentiary value of that material. As the raw data obtained from the ByLock server had not been disclosed to the applicant, he had been unable to test first-hand the integrity and reliability of that evidence and to challenge the relevance and significance attributed to it. In principle, that situation placed a greater onus on the domestic courts to subject those issues to the most searching scrutiny. Having examined the issue on the basis of its well-established case-law, the Court concluded that the prejudice to the defence on that account had not been counterbalanced by adequate procedural safeguards ensuring that the applicant had had a genuine opportunity to challenge the evidence against him and conduct his defence in an effective manner and on an equal footing with the prosecution. In particular, the domestic courts had neither provided reasons for impugned non-disclosure, nor responded to the applicant’s request for an independent examination of the data for verification of its contents and integrity or to his concerns as to its reliability. Further, the applicant had not been given the opportunity to acquaint himself with the decrypted ByLock material, including, in particular, the nature and content of his activity over that application, which would have constituted an important step in preserving his defence rights, especially given the preponderant weight of that evidence in securing his conviction. The prejudice that had been sustained by the defence on the basis of those shortcomings, had been compounded by the deficiencies in the domestic courts’ reasoning vis-à-vis the ByLock evidence. Importantly, the courts had not sufficiently explained how it was ascertained that ByLock was not, and could not have been, used by anyone who was not a “member” of the FETÖ/PDY within the meaning of Article   314 §   2. The domestic courts’ failure to respond to the applicant’s specific and pertinent requests and objections raised a legitimate doubt that they had been impervious to the defence arguments and that the applicant had not been truly “heard”. In view of the importance of duly reasoned decisions for the proper administration of justice, the domestic courts’ silence on vital matters at the heart of the case also raised well-founded concerns on the applicant’s part regarding their findings and the conduct of the criminal proceedings “as a matter of form” only. While acknowledging that electronic evidence of such kind might, in principle, be very important in the fight against terrorism or other organised crime, the Court emphasised that, as any other evidence, it might not be used by the domestic courts in a manner that undermines the basic tenets of a fair trial. The failings in the instant case had the effects of undermining the confidence that courts in a democratic society must inspire in the public and of breaching the fairness of the proceedings. Therefore, the criminal proceedings against the applicant had fallen short of the requirements of a fair trial. As to whether the impugned failure to observe the requirements of a fair trial could be justified by the respondent State’s derogation under Article   15, the Court emphasised that such a derogation, even if justified, neither had the effect of dispensing the States from the obligation to respect the rule of law and its attendant guarantees, nor did it give them carte blanche to engage in conduct that might lead to arbitrary consequences for individuals. Accordingly, when determining whether a derogating measure that encroached upon the right to a fair trial had been strictly required by the exigencies of the situation, the Court had to also examine whether adequate safeguards had been provided against abuse and whether the measure had undermined the rule of law. That being said, Article   6 should not be applied in such a manner as to put disproportionate difficulties in the way of authorities in taking effective measures to counter terrorism or other serious crimes in discharge of their duty to protect the right to life and the right to bodily security of members of the public.   In that regard, the Court referred to its considerations under Article   7 concerning the difficulties faced by the States in their struggle against terrorism in view of the dynamic nature of that threat and, more specifically, the serious predicament that had been faced by Türkiye as a result of the attempted coup and the allegedly unorthodox nature of and methods employed by the FETÖ/PDY as well as the heavy burden faced by the Turkish judicial authorities in the aftermath of the coup attempt. In the present case, none of the domestic courts, including the ones involved in the applicant’s case, had examined the fair trial issues relating to the Bylock evidence from the standpoint of Article   15 of the Convention or Article   15 of the Turkish Constitution, which similarly regulated derogations in time of emergency or mentioned, even as a contextual factor framing their approach to those issues, the threats or difficulties giving rise to the state of emergency. Nor had the Government adduced any detailed reasons as to whether those fair trial issues had originated in the special measures that had been taken during the state of emergency and, if so, why they had been necessary or whether they had been a genuine and proportionate response to the emergency situation. Accordingly, the limitations on the applicant’s fair trial rights at issue could not be treated as having been strictly required by the exigencies of the situation. A finding to the contrary in such circumstances would negate the safeguards provided by Article   6 §   1, which always had to be construed in the light of the rule of law. Conclusion : violation (sixteen votes to one). The Court also held, unanimously, that there had been a violation of Article   11 as the domestic courts had deprived the applicant of the minimum protection against arbitrariness and had overly extended, in an unforeseeable manner, the scope of Article   314 §   2 when relying, to corroborate his conviction, on his membership of a trade union and association- considered as affiliated with the FETÖ/PDY - that had both been operating lawfully at the material time. Moreover, the Government had failed to demonstrate that the interference with the applicant’s rights under that provision had been strictly required by the exigencies of the situation under Article   15. Article   46: In so far as individual measures were concerned, the Court considered that the reopening of the criminal proceedings which was allowed by domestic law, would be the most appropriate way of putting an end to the violations found and of affording redress to the applicant. Furthermore, the Respondent State had to take general measures as appropriate to address the systemic problem which had led to the findings of violation in the judgment, notably the domestic courts’ approach to the use of Bylock. More specifically, the courts were required to take due account of the relevant Convention standards as interpreted and applied in the present judgment. The problem at issue had affected – and remained capable of affecting – a great number of persons. There were currently some 8,000 applications on the Court’s docket involving similar complaints raised under Articles 7 and/or 6 relating to convictions that had been based on the use of ByLock as in the present case and, given that the authorities had identified around 100,000 Bylock users, many more might potentially be lodged. Therefore, the defects identified in the present judgment needed, to the extent relevant and possible, to be addressed by the Turkish authorities on a larger scale – that is, beyond the specific case of the present applicant. Article   41: finding of a violation sufficient in respect of non-pecuniary damage; claim for pecuniary damage dismissed. (See also Mirilashvili v.   Russia , 6293/04, 11   December 2008, Legal Summary ; Matanović v.   Croatia , 2742/12, 4   April 2017, Legal Summary ; Mehmet Hasan Altan v.   Turkey , 13237/17, 20   March 2018, Legal Summary ; G.I.E.M. S.r.l. and Others v.   Italy [GC], 1828/06 et al, 28   June 2018, Legal Summary ; Rook v.   Germany , 1586/15, 25   July 2019, Legal Summary ; Parmak and Bakır v.   Turkey , 22429/07 and 25195/07, 3   December 2019, Legal Summary ; Pişkin v.   Turkey , 33399/18, 15   December 2020, Legal Summary ; Akgün v.   Turkey , 19699/18, 20   July 2021, Legal Summary )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. To access legal summaries in English or French click here . For non-official translations into other languages click here .