{"id":28479,"date":"2026-04-30T09:00:27","date_gmt":"2026-04-30T07:00:27","guid":{"rendered":"https:\/\/voelkerrechtsblog.org\/?p=28479"},"modified":"2026-05-06T12:55:27","modified_gmt":"2026-05-06T10:55:27","slug":"from-evidence-to-assumption","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/from-evidence-to-assumption\/","title":{"rendered":"From Evidence to Assumption"},"content":{"rendered":"

In its judgments in Seyhan and Others<\/em><\/a>, Karsl\u0131 and Others<\/em><\/a> and Bozyoku\u015f and Others<\/em><\/a> v. T\u00fcrkiye<\/em>, published on 16 December 2025, the European Court of Human Rights (the Court or ECtHR) exposed a state of structural lawlessness in Turkish criminal court proceedings. Individualized criminal liability had been replaced by an automated regime of collective punishment. These three group judgments, considered final under the European Convention on Human Rights (ECHR or Convention), cover a total of 2,420 applicants. With these rulings, the Court decided that the principle of “no crime or punishment without law” under Article 7 ECHR had been violated for 1,568 applicants and the right to a fair trial under Article 6 (1) ECHR for 852 applicants.<\/p>\n

Background of the Cases and Systematic Judicial Procedures<\/strong><\/p>\n

Following the 15 July 2016 coup attempt, the Turkey government blamed the G\u00fclen<\/em> movement, an international network of religious, educational, and social organizations founded and inspired by the late Fethullah G\u00fclen<\/em>. The Turkish judiciary subsequently initiated widespread prosecutions against its alleged members under Article 314 of the Turkish Penal Code (TPC) for \u201cmembership in an armed organisation.\u201d These convictions were often based solely on the use of the encrypted messaging app ByLock<\/a>, which authorities claimed was used exclusively by the movement, effectively treating its installation as an automatic criminal offense.<\/p>\n

However, in the 2023 Grand Chamber judgment of Y\u00fcksel Yal\u00e7\u0131nkaya v. T\u00fcrkiye<\/em><\/a>, the Court ruled that this approach violated the principle of foreseeability, a legal requirement that laws must be clear enough for individuals to predict potential criminal consequences of their actions. The Court found that the domestic interpretation of Article 314 TPC was excessively broad, violating Articles 6 (fair trial) and 7 (no punishment without law) of the Convention (para 393). This precedent was subsequently affirmed in 2025 through Demirhan and Others<\/em><\/a>, concerning a group of 239 individuals, marking the first large-scale reflection of this violation<\/a>, and eventually extending to over 2,400 individuals across the Seyhan and Others<\/em><\/a>, Karsl\u0131 and Others<\/em><\/a> and Bozyoku\u015f and Others<\/em><\/a> cases. Collectively, these rulings confirm that the criminalization of encrypted communication had evolved from an isolated error into a structural pattern of judicial abuse.<\/p>\n

The Consolidation of the Courts\u2019 Case Law<\/strong><\/p>\n

The first judgment concerning the use of ByLock, Y\u00fcksel Yal\u00e7\u0131nkaya v. T\u00fcrkiye<\/em><\/a>, and the subsequent decision in Demirhan and Others<\/em><\/a> arose from cases involving individuals prosecuted after 15 July 2016 on charges of \u201cmembership of an armed organisation\u201d under Article 314\/2 TPC. In these cases, domestic courts had treated the use of ByLock as decisive, effectively accepting it as sufficient in itself to secure convictions, without conducting an individualized assessment of the material and mental elements of the offence (actus reus and mens rea). The Turkish Constitutional Court, which serves as the final domestic safeguard, unfortunately failed to establish a clear standard in these cases, thereby allowing the continued automatic reliance on ByLock as determinative evidence.<\/p>\n

In the Seyhan and Others<\/em><\/a>, Karsl\u0131 and Others<\/em><\/a> and Bozyoku\u015f and Others<\/em><\/a> cases, building upon the foundational precedents of Y\u00fcksel Yal\u00e7\u0131nkaya v. T\u00fcrkiye<\/em><\/a> (GC) and Demirhan and Others<\/em><\/a>, the Court reaffirmed that the categorical and automatic treatment of the simple use of ByLock constitutes a fundamental breach of the Convention.<\/p>\n

Analysis of the Violations<\/strong><\/p>\n

The Court established that the domestic proceedings violated two fundamental principles of criminal law. First, Article 7 ECHR and the principle of legality and the “strict liability” regime. In the Karsl\u0131 and Others<\/em><\/a> and Bozyoku\u015f and Others<\/em><\/a> judgments, the Court found a violation of the principle of legality concerning 1,568 applicants. The judgments criticized equating ByLock use with membership of a criminal organization without investigating the constituent mental and material elements. The Court emphasized that making legal acts a constituent element of a crime violated the “nullum crimen sine lege<\/em>” principle, as it led to a regime of “strict liability” that is rejected in modern criminal law.<\/p>\n

Second, the Court reasoned that the right to a defense and the equality of arms protected under Article 6 (1) ECHR were violated. The Court ruled that procedural safeguards of 852 individuals, primarily in the Seyhan<\/em> case, were systematically violated. The failure to consider objections regarding the integrity of ByLock digital data, the denial of access to this data, and the denial of the opportunity for the defense to present its technical arguments fundamentally undermined the principle of “equality of arms.”<\/p>\n

The Court did not only reaffirm the jurisprudence established in Y\u00fcksel Yal\u00e7\u0131nkaya v. T\u00fcrkiye<\/em><\/a> and Demirhan and Others<\/em><\/a>. It took the framework of unlawfulness outlined in those cases considerably further regarding the material and mental elements of the offence. In this new approach, the Court set aside formal criteria such as the \u201csimilarity\u201d or \u201cidentity\u201d of evidence and instead placed its primary emphasis on the constituent elements of the offence, particularly the mental element and the ultimate aim.<\/p>\n

Especially in relation to the charge of membership in an armed organization, the Court held that imposing criminal liability solely based on facts that may merely constitute \u201cevidence\u201d \u2014 such as the use of ByLock, membership of a trade union, or banking activities \u2014 violates the principle of legality of crimes and punishments under Article 7 of the Convention. The Court emphasized that, in the absence of concrete proof that the individual knew of and embraced the organization\u2019s violent ultimate purpose, such elements cannot in themselves justify a conviction.<\/p>\n

Through this stance, the Court has removed its jurisprudence from the confines of a \u201cspecific group or type of evidence\u201d and transformed it into a general legal review mechanism encompassing all prosecutions conducted without establishing the constituent elements of the offence. In other words, the Court no longer confines its analysis to the question of \u201cwhat type of evidence was relied upon\u201d but instead adopts a broader inquiry into whether the constituent elements of the offence were genuinely established in the proceedings. In this way, the ECtHR has identified the reliance on proxy evidence in place of core elements of criminal liability within the Turkish judicial system as a structural deficiency and has reaffirmed that addressing this problem requires a return to the universal principles of criminal law.<\/p>\n

A Fragmented Approach to Human Rights Violations<\/strong><\/p>\n

In its press release<\/a> regarding the three judgments, the ECtHR drew a comparison between the 2,420 applications and formerly decided cases. It also established continuity between them and a list of thousands of pending applications resulting from the same legal issues addressed by the Court in these precedent-setting judgments. However, the Court created a fragmented jurisprudence by finding violations under different articles in the Seyhan <\/em>and Bozyoku\u015f <\/em>judgments. <\/em>In the Seyhan <\/em>case, the Court found a violation of Article 6 (right to a fair trial) and did not examine Article 7 (legality of crimes and punishments); while, in the Bozyoku\u015f <\/em>case, the opposite approach was taken. In this case, a violation of Article 7 was found, and Article 6 was left unexamined.<\/p>\n

Another important point is that the Court, while not requesting new observations from the Government in these cases, kept taking into account the Government’s general objections from previous cases. In these cases, the Court avoided comprehensively examining all articles by invoking “procedural economy” and “the possibility of retrial”, thus implicitly rewarding the Government’s persistent objections to the Y\u00fcksel<\/em> Yal\u00e7\u0131nkaya v. T\u00fcrkiye<\/em><\/a> judgment. The failure to examine non-derogable rights, such as Article 7 ECHR, paves the way for domestic courts to repeat similar substantive legal errors in the retrial process. This poses a risk of incomplete justice for thousands of individuals.<\/p>\n

The Court\u2019s Decision-Making System and Compensation Procedures<\/strong><\/p>\n

The fact that the Court, in these massive-scale judgments, found a violation but did not award non-pecuniary damages or legal costs constitutes a significant weakness in terms of the principle of an \u201ceffective remedy\u201d under Article 13 of the ECHR, read in conjunction with the Court\u2019s just satisfaction practice under Article 41. While the Court\u2019s referral to the domestic reopening of proceedings (retrial) may be theoretically plausible, systemic judicial resistance in T\u00fcrkiye \u2014 evidenced by the disregard of ECtHR case-law \u2014 raises serious doubts. The Constitutional Court\u2019s post-Y\u00fcksel Yal\u00e7\u0131nkaya v. T\u00fcrkiye<\/em> position, which avoids ruling on ByLock-related cases and fails to fully align with that jurisprudence, indicates that this approach is unlikely to remedy the serious violations suffered by the applicants.<\/p>\n

The Court’s decision-making methodology in its recent rulings also deserves criticism. Deciding on thousands of cases using template texts and a listing method, without an individualized analysis, contradicts the spirit of “individual applications,” which is the raison d’\u00eatre of the Court. Ironically, this method is reminiscent of the collective purge implemented in T\u00fcrkiye after July 15th through decrees, reducing applicants to mere statistical “numbers” rather than legal subjects. In cases concerning systemic and serious violations, the absence of non-pecuniary damages, in addition, may substantially diminish the Court\u2019s deterrent effect on States. While findings of violations are significant, financial compensation plays an important role in reinforcing the practical effectiveness of the Convention system.<\/p>\n

Strong Emphasis on Systematic Judicial Abuses<\/strong><\/p>\n

Notwithstanding the above-mentioned shortcoming of the judgments, the Court, for the first time in its 66-year history, found violations of Article 7 ECHR in a total of 1,568 applications in a single day, undeniably revealing the gravity and extraordinary scale of judicial malpractice in T\u00fcrkiye. By comparison, in the 66 years leading up to these historic decisions, the Court had found only 67 violations of Article 7 ECHR in all Member States combined. However, these violations represent a profound breach of the principle of lawfulness and point to a structural problem that extends far beyond isolated incidents. With the latest Karsl\u0131 and Others<\/em><\/a> and Bozyoku\u015f and Others<\/em><\/a> decisions, violations of Article 7 ECHR have been found against T\u00fcrkiye in 1,808 cases. 7,143 similar cases have been notified to the Turkish Government, and thousands more are awaiting notification by the Court. To this date, the ECtHR has held that a total of 3,851 individuals were unlawfully detained.<\/a> In addition, the number of cases currently pending before the ECtHR is 53,850 according to the latest statistics<\/a>. Of this number, 35.5%, or 19,100, are from T\u00fcrkiye alone.<\/p>\n

The cases already decided, together with similar cases still pending before the Court, indicate a pattern of systematic and arbitrary deprivation of liberty against a specific group, as defined in Article 77\/1(c) of the TPC<\/a>, and may also be considered crimes against humanity under the Rome Statute<\/a>. While the Court officially remains neutral regarding the motivation behind these systematic convictions, its findings demonstrate that the convictions, lacking individual evidence, reflect a deliberate and systematic policy of the state to collectively punish a group perceived as a threat. This conduct meets the definition of crimes against humanity.<\/p>\n

Growing International Concerns<\/strong><\/p>\n

These recent ECtHR judgments provide high-level confirmation of a critical point repeatedly emphasized in the recent opinions of the United Nations Working Group on Arbitrary Detention (WGAD)<\/em>.<\/a> Indeed, in its recent Ak\u0131n \u00d6zt\u00fcrk<\/em><\/a> opinion (para 87), the WGAD drew attention to the remarkable increase in cases of arbitrary detention in T\u00fcrkiye in recent years, warning that widespread or systematic imprisonment in violation of international law may constitute crimes against humanity. The Working Group reached the same conclusion in the cases of Cihangir \u00c7enteli<\/em><\/a> (para 63), Levent Kart<\/em><\/a> (para 67), Ahmet Din\u00e7er Sakao\u011flu<\/em><\/a> (para 96), Osman Karaca<\/em><\/a> (para 76), and Muhammet \u015eent\u00fcrk<\/em><\/a> (para 76). This assessment is based on twenty-four distinct opinions on arbitrary detention published by the Working Group to date.<\/p>\n

In contrast, the Court has so far found that a total of 3,851 people<\/a> (1,225 of whom were former judges and prosecutors) were arbitrarily detained and arrested in 52 collective cases. However, the Seyhan<\/em>, Karsl\u0131<\/em> and Bozyoku\u015f <\/em>judgments make this picture much more shocking, providing even stronger evidence that judicial practices in T\u00fcrkiye fall within the scope of “crimes against humanity.” This is because these rulings are not limited to arbitrary detention but directly relate to the merits of the case, namely the final judgments of conviction.<\/p>\n

According to Article 100\/1 of the Turkish Code of Criminal Procedure<\/a>, “strong suspicion” is sufficient for arrest, while conviction requires that the defendant’s guilt be proven “beyond reasonable doubt” with concrete and convincing evidence. The Court\u2019s findings in three collective judgments regarding violations of Articles 6 and 7 constitute the strongest judicial response to the WGAD\u2019s warning about “crimes against humanity.”<\/p>\n

Findings of UN Special Rapporteurs<\/strong><\/p>\n

During the proceedings, a communication issued by eight UN Special Rapporteurs to the Turkish Minister of Foreign Affairs, condemning grave human rights violations and made public on 7 December 2025<\/a>, brought the gravity of the issue to the international stage. The rapporteurs underscored that hundreds of thousands of people were deprived of their liberty based on vague definitions of terrorism, lacking concrete evidence and violating international conventions, and that this situation had turned into a “sustainable campaign of mass arrests” rather than isolated errors. Furthermore, it was stated that the designation of the G\u00fclen movement as an “armed organization” in the post-July 15 period did not meet legal standards and the UN’s model definition of terrorism.<\/p>\n

The most striking aspect of the letter is the vehement condemnation of targeting individuals on the grounds of “guilt due to family ties or relationships,” and the reiteration of the warning that this systematic pattern could constitute “crimes against humanity” under international law. The Special Rapporteurs emphasized that the provisions of the Anti-Terror Law and the Penal Code are drafted with excessively broad language, enabling their systematic abuse against dissidents and individuals linked to the G\u00fclen<\/em> movement.<\/p>\n

Conclusion<\/strong><\/p>\n

The Court\u2019s judgments in the cases of Seyhan, <\/strong>Karsl\u0131 <\/em>and Bozyoku\u015f<\/em> confirm the systematic incompatibility of T\u00fcrkiye\u2019s prosecution practices against terrorism offenses with Articles 6 and 7 of the Convention, reinforcing the Yal\u00e7\u0131nkaya<\/em> and Demirhan<\/em> jurisprudence. In these judgments the Court found that the direct use of ByLock data as grounds for conviction without individualized evidence and fault analysis violated the principle of “no crime and punishment without law”. It further established that this practice created a regime of “strict liability” which is rejected in modern criminal law. The numerous violations found in a single day demonstrate that the systemic abuse of power within the Turkish judiciary has gone beyond isolated errors and has become a structural and widespread model of punishment.<\/p>\n

Nevertheless, the implications of the Court\u2019s case law \u2014 particularly in Yal\u00e7\u0131nkaya <\/em>\u2014 require not only individual redress but also structural reforms, including the revision of anti-terror legislation, the reassessment of evidentiary standards, and the reopening of domestic proceedings. While these measures fall under the supervision of the Council of Europe, their effective implementation remains uncertain. Continued reliance on problematic judicial practices suggests that compliance may be slow and partial, unless there is sustained external oversight and genuine engagement by domestic courts to align with the Court\u2019s standards.<\/p>\n","protected":false},"excerpt":{"rendered":"

In its judgments in Seyhan and Others, Karsl\u0131 and Others and Bozyoku\u015f and Others v. T\u00fcrkiye, published on 16 December 2025, the European Court of Human Rights (the Court or ECtHR) exposed a state of structural lawlessness in Turkish criminal court proceedings. Individualized criminal liability had been replaced by an automated regime of collective punishment. […]<\/p>\n","protected":false},"author":37,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[6639],"tags":[5117,3782,4410],"authors":[7630],"article-categories":[6000],"doi":[],"class_list":["post-28479","post","type-post","status-publish","format-standard","hentry","category-uncategorized","tag-crimes-against-humanity","tag-ecthr","tag-turkey","authors-ufuk-yesil","article-categories-article"],"acf":{"subline":"The ECtHR Confronts Structural Injustice in T\u00fcrkiye\u2019s Criminal Courts"},"meta_box":{"doi":"10.17176\/20260430-172913-0"},"_links":{"self":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/28479","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/users\/37"}],"replies":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/comments?post=28479"}],"version-history":[{"count":4,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/28479\/revisions"}],"predecessor-version":[{"id":28487,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/28479\/revisions\/28487"}],"wp:attachment":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/media?parent=28479"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/categories?post=28479"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/tags?post=28479"},{"taxonomy":"authors","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/authors?post=28479"},{"taxonomy":"article-categories","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/article-categories?post=28479"},{"taxonomy":"doi","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/doi?post=28479"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}