“European Court of Human Rights (ECHR) has issued one of the most severe violation judgments in its history against Turkey. The Grand Chamber jurisprudence, recorded as the Yüksel Yalçınkaya Decision, is akin to a lesson in ‘introduction to law and basic legal concepts’ for judges in Turkey. It has determined the violations of Article 6, which regulates the right to a fair trial of the European Convention on Human Rights, Article 7, which commands the legality of crime and punishment, and Article 11, which outlines the framework for assembly and association rights.
Setting aside everything else, it is shameful to declare actions outside what is written in the law as crimes and impose penalties on them; it is even more disgraceful to make non-criminal activities at the time they were committed the subject of criminal prosecution later. The European Court of Human Rights emphasizes that you cannot establish judicial proceedings and impose penalties using ghostly evidence like ByLock, which is even concealed from the judges and prosecutors, let alone presenting it as proof to justify a crime you have fabricated. Of course, it expresses this in technical and legal terms, but it aligns perfectly with the framework I have depicted.
Actually, you don’t need to be a judge in the most prestigious court to say these things. If you took a ‘FETÖ’ verdict text to the petition writers in front of the courthouses, you would hear similar things. Imagine a trial for a terrorist organization where there is not a single piece of evidence in the file. Instead of that, there are bank receipts, association membership lists, and mobile phone application logs. What’s worse is that you don’t even show the essential evidence called ByLock to the defendants, not to mention allowing them to examine it. The National Intelligence Agency (MİT) has a magical (actually dirty) wand in its hand, turning anyone it touches into a terrorist.
To understand the current situation, we need to refresh our memory a bit. Can you count how many times the media, the pillar of lawlessness, reported the ‘most authentic ByLock query screen’? Let me tell you one: Karar Gazetesi (Decision Newspaper) on April 7, 2017, came out with the headline ‘Sensitive query screen for ByLock.’ The newspaper was announcing that the National Intelligence Organization had updated the database containing the lists of names. Because there had been numerous complaints, and mistakes had been detected. We saw people who served eight months in prison even though they didn’t have a smartphone. We learned from such news that four judges who had been dismissed on the grounds that they were ByLock users were reinstated. The positive news from Karar was no different from the wolf’s cunning.
Information about the same person was pouring into courts like a daisy oracle. While days passed with ‘he-she, she-he,’ suddenly, the Mor Beyin (Purple Brain) Scandal erupted. The Ankara Chief Public Prosecutor’s Office announced that the legal statuses of 11,480 people should be re-evaluated, stating that ByLock was installed on their phones against their will.
In a long paragraph, the ECHR has torn ByLock into pieces from the perspective of evidence security:
“More specifically, the Court has not taken into account the fact that the data concerning the use of ByLock had already been processed when the data was collected by the MİT and the subsequent judicial decision for its examination was given and that ByLock data were used not only for intelligence purposes but also as evidence to initiate investigations and to arrest the applicants and other suspects.”
ByLock became a typical example of unlawful evidence, with files/lists being prepared without knowing the conditions under which it was obtained and recorded. The fairy tales produced by pro-government newspapers served no purpose other than magnifying the lawlessness, but that was fine. Stories like “MİT seized the computers of the service provider company in Lithuania in a midnight raid” or “heroic MİT hackers copied it” were evidence that those lists would not be accepted as evidence in court. Getting information from the Information Technologies and Communication Authority and mobile phone operators didn’t help either.
The Grand Chamber has embarrassed those who acted as if they had invented something new and those who fell for it as if they had heard it for the first time. Because our laws already contain the same provisions: Article 38 of the Constitution-(sixth paragraph): “Evidence obtained in violation of the law shall not be admissible.” Article 217 of the Turkish Criminal Procedure Code (CMK) states: “(first paragraph) A judge may base his decision only on evidence presented at the trial and debated in his presence. (second paragraph) The accused may prove the charge with any kind of evidence obtained in a lawful manner.” Furthermore, Article 289 of the CMK, concerning the review of appeals, is classified as a definite violation of the law under the heading “the judgment is based on evidence obtained by unlawful means.” Even incidental evidence must be obtained during another lawful procedure to be used in court.
The stories about servers being ‘hacked, stolen, or bought with money’ all led to the same conclusion: unlawful evidence. The primary goal of procedural rules is evidence security. Preventing addition, removal, and tampering is the top priority. And ByLock is not exempt from this.
They went so far with ByLock that they even sentenced UN judge Aydın Sefa Akay to seven and a half years in prison and used the communication application as a reason. Akay mentioned it by name and explained that they used it as a means of communication among Freemasons, but it was in vain.
Now, let’s get to the most important point; how binding is this decision, can Erdoğan say ‘I don’t recognize it’? Of course, he can because lawlessness is in his nature. However, his maneuvering ability is greater than anyone else’s. Didn’t he raise interest rates from 8% to 30% without even chewing on my body? He might see the decision as an opportunity to release built-up energy and create an image of returning to the rule of law.
In the final analysis, the Yalçınkaya Decision of the ECHR is not a magic wand that will turn the country into a rule of law, but it will provide victims against the courts with a document they have not had until now. It’s a document that can be presented to those who have sentenced people with fabricated evidence and those who want to continue doing so. In Turkey, they don’t deliver anyone’s rights to them sitting where they are. For those who want to seek justice and those who don’t give up the fight, this decision will be the most powerful lever so far. If you look at it, there were not a few who claimed that the struggle in the ECHR was a futile endeavor.”