Case of Yüksel Yalçınkaya v. Türkiye, (Application no. 15669/20)

A selection of key paragraphs can be found below the judgment.

269. The Court is acutely aware of the difficulties associated with the fight against terrorism and those that States encounter in the light of the changing methods and tactics used in the commission of terrorist offences (see Parmak and Bakır, cited above, § 77). It has, furthermore, 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. The Court reiterates in this connection the finding it has made in a number of cases, and endorsed in the present case (see paragraph 213 above), that the attempted military coup in Türkiye disclosed the existence of a “public emergency threatening the life of the nation” within the meaning of the Convention (see, for instance, Mehmet Hasan Altan, cited above, § 93, and Baş v. Turkey, no. 66448/17, § 115, 3 March 2020). Therefore, the urgency and severity of the situation that the authorities and courts had to grapple with in the aftermath of the coup attempt are recognised.

270. It should also be emphasised, however, that none of these considerations mean that the fundamental safeguards enshrined in Article 7 of the Convention, which is a non-derogable right that is at the core of the rule of law principle, may be applied less stringently when it comes to the prosecution and punishment of terrorist offences, even when allegedly committed in circumstances threatening the life of the nation. The Convention requires the observance of the Article 7 guarantees, including in the most difficult of circumstances.

272. The Court concludes, in the light of the foregoing, that there has been a violation of Article 7 of the Convention.

341. The Court considers, in the light of the foregoing, that there were not enough safeguards in place to ensure that the applicant 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 (see Horvatić v. Croatia, no. 36044/09, § 84, 17 October 2013). Moreover, the domestic courts’ failure to respond to the applicant’s specific and pertinent requests and objections raised a legitimate doubt that they were impervious to the defence arguments and that the applicant was not truly “heard”. In view of the importance of duly reasoned decisions for the proper administration of justice, the domestic courts’ silence on vital matters that went to 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 (see the applicant’s argument on paragraph 97 above).

345. Accordingly, and despite the specific features of the criminal proceedings at issue – both in terms of the context in which they were conducted and the nature and scope of the main evidence at their origin, which entailed a high volume of encrypted electronic data relating to thousands of other individuals –, the domestic courts were required to take adequate measures to ensure the overall fairness of the proceedings against the applicant. As demonstrated above, this they failed to do. In the Court’s view, the domestic courts’ failure to put in place appropriate safeguards vis-à-vis the key piece of evidence at issue to enable the applicant to challenge it effectively, to address the salient issues lying at the core of the case and to provide reasons justifying their decisions was incompatible with the very essence of the applicant’s procedural rights under Article 6 § 1. These failings 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 (see Ayetullah Ay, cited above, § 192).

346. In the Court’s view, the foregoing considerations are sufficient to lead to the conclusion that the criminal proceedings against the applicant fell short of the requirements of a fair trial in breach of Article 6 § 1 of the Convention.