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Beyond the Verdict: Yalçınkaya v Türkiye and the Quest for Justice in the Shadow of Terrorism Charges





Mr Coşkun Yorulmaz

Coşkun Yorulmaz, a Turkish lawyer, currently resides in exile in London. He serves as a Legal Consultant at Solidarity With Others, a non-governmental organization based in Brussels. This organization is dedicated to defending and promoting human rights in Turkey and beyond.



"Injustice anywhere is a threat to justice everywhere."

Martin Luther King Jr.



For a staggering number of over two million people who have been subjected to politically motivated prosecutions under Turkey’s unreasonably broad and vague anti-terror laws, the European Court of Human Rights (ECtHR) Yalçınkaya v Turkey judgment is more than a pivotal court decision; it is a ray of hope.

 

Behind the vibrant commercial, political and social facade of Turkey, from the bustling street of ancient Istanbul to the golden beaches of Antalya, all across the country, lies a disturbing truth. Hundreds of thousands of people including teachers, journalists, and civil servants live in constant fear of imprisonment. Their stories, each and every one of them, shed light on systematic problems with the rule of law and human rights situation in the country.

 

As it ruled that the evidence Turkish courts were using to convict defendants for terrorism offences was in fact illegal and in any case their right to a fair trial was being violated, it does not just resonate in courtrooms and legal textbooks; it echoes through the streets and homes of cities and towns across Turkey, touching the lives of ordinary citizens unlawfully caught by an unreasonably broad net of anti-terrorism laws and policies. While the judgment criticises systematic problems in the Turkish judiciary, it offers an opportunity to the Turkish government for reassessment and reform. In that sense, Yalçınkaya is not only a landmark decision but also a quest for a society in search of justice and freedom.



Yüksel Yalçınkaya's Path to Justice: A Landmark Case at the ECtHR


Yüksel Yalçınkaya's journey to justice began in March 2017. A public school teacher from Kayseri, Turkey, faced a six-year prison sentence handed down by the Kayseri Assize Court. The court accused him of being part of what the Turkish government labels as the "FETÖ/PDY armed terrorist organisation," primarily the Gülen movement. Central to his conviction were seemingly ordinary actions: using the encrypted messaging app ByLock, holding an account in Bank Asya, which was eventually confiscated by the state, and being a member of a teacher’s union and an NGO.

 

Yalçınkaya complained to the ECtHR in March 2020. He contended that his trial and subsequent conviction violated multiple articles of the Convention, particularly those protecting the right to a fair trial and freedom of association. Recognizing the case's wider implications, the ECtHR's Second Section referred it to the Grand Chamber.

 

In September 2023, after an exhaustive process including a public hearing in January 2023, the Grand Chamber delivered its final judgment. The Court identified clear violations of Articles 7, 6, and 11 of the European Convention on Human Rights. Article 7(1) which provides that no one should be convicted for an act that did not constitute a criminal offence when committed, became the focal point. Yalçınkaya's conviction, which was based on acts which were not criminal at the time he committed them, was found to have violated Article 7.

 

The ECtHR also ruled that Article 6(1) on the right to a fair trial was also violated. The Court criticised the use of ByLock as evidence and noted that denying the applicant access to data crucial to his defence rendered his trial unfair.

 

On the other hand, the Court found a violation of Article 11 on the freedom of association. Yalçınkaya's use of the services of Bank Asya and his involvement in several NGOs were absolutely within his rights and should not have led to his prosecution, the Court ruled.

 

In essence, the ECtHR's judgment not only vindicated Yalçınkaya but also confirmed at the highest level the critical need for foreseeability of Turkey’s criminal laws and its safeguarding of the fundamental human rights as defined in the Convention. The Yaçınkaya decision, thus, is a testament to upholding the universal legal principles in the face of political and social pressure.



The Ripple Effect: Far-Reaching Implications of the Yalçınkaya Ruling


The Yalçınkaya v Turkey ruling by the European Court of Human Rights (ECtHR) is a landmark decision, not merely for its direct impact on Yüksel Yalçınkaya but for its broader implications on the Turkish legal landscape. The Court's determination that the violations of Articles 7 and 6 — especially in the context of the ByLock application usage — constitute a systemic problem has set a precedent with profound consequences.

 

This issue's systemic nature is starkly highlighted by the more than 8,000 cases awaiting judgment at the ECtHR, a figure further amplified by the estimated hundred thousand ByLock users in Turkey. Such numbers do point to systematic problems which necessitate serious effort to rectify.

 

The ECtHR’s judgment ordered the Turkish authorities to take retrospective action to remedy these violations, in line with the subsidiarity principle of the Convention system as parties to the convention have a duty to deal with the problems which cause such violations as well as implement the court’s rulings without delay.

 

Significantly, the Yalçınkaya judgment underscores the ECtHR’s role in prompting the correction of flaws within national human rights protection mechanisms. It emphasises the need for Turkish authorities to adopt measures compliant with the standards of the Convention as interpreted in this ruling, particularly in pending cases. This decision, therefore, is not just an isolated one but rather a catalyst, urging Turkey to undertake proactive steps to remedy the issues identified by the Court and ensure similar violations do not repeat.



Upholding Legal Sanctity: The Yalçınkaya Case and Article 7 


In its Yaçınkaya v Turkey decision, The European Court of Human Rights (ECtHR) underlines the significance of Article 7 as a cornerstone for the rule of law as well as a crucial element of the Convention's human rights protection framework. According to the Court, Article 7 offers absolute protection which, as per Article 15 of the Convention, is applicable even in extraordinary situations such as war.  Also, according to the Court, Article 7 not only prohibits the enactment of retroactive laws, but it also embodies the principle of ‘nullum crimen, nulla poena sine lege’, ensuring that individuals may not be punished for actions that were not criminal at the time they were committed. This principle demands precise legal definitions for offences, providing clarity and foreseeability to individuals as to what exactly constitutes a criminal act. Such clarity, which may be offered through both legal wording and judicial interpretation, serves as a crucial safeguard against arbitrary prosecution and punishment, thereby reinforcing fundamental principles of law.

 

It is also worthy of note that the Yalçınkaya ruling is also significant in the sense that there are only 47 other previous decisions in which the Court found a violation of Article 7.

 


ECtHR's Criticism of Turkish Courts’ Broad Interpretation of Anti-Terror Laws

 

The ECtHR made a significant decision criticising Turkey's expansive interpretation of its Penal Code and Anti-Terror Law by its national courts. The Court found a troubling trend where everyday activities such as using the ByLock app, banking with certain institutions, joining NGOs or unions, or subscribing to a newspaper were treated as equivalent to being part of a terrorist group. This broad interpretation overlooked the necessary assessment of information and intent which are crucial for making serious accusations, attributing responsibility without proper distinction merely for using the ByLock app.

 

The ECtHR pointed out that such an approach by Turkish courts ignored important elements of an offence, particularly the mental aspects essential for determining intent. By considering these actions strict liability offences, Turkish courts deviated from even their legal principles. The unpredictable and sweeping application of the law resulted in an unwarranted expansion of criminal liability, unfairly prejudicing the accused and violating Article 7 of the Convention.

 

This decision highlights a serious concern: the potential use of criminal laws as a broad net rather than a precise tool is leading individuals into a legal maze devoid of fundamental, clear and foreseeable laws. The ECtHR's ruling asks Turkey to change its approach and apply its criminal laws in line with the well-established principles of the Convention.



A Watershed Moment in Turkish Legal History


The Yaçınkaya v. Turkey ruling by the ECtHR is a landmark moment in Turkish legal history. It is a lot more than another ECtHR decision. It is unique in the sense that it orders Turkey to carry out a profound re-evaluation of its legal system and potentially may change the fate of over two million Turkish citizens. It highlights deeper problems within the judiciary while calling for a critical reassessment of it and urgent implementation of corrective measures.

 

Sixteen out of seventeen judges in the ECtHR Grand Chamber found systematic human rights violations caused by Turkey's judicial practices.  It was taken almost unanimously with only the Turkish judge dissenting.

 

The Court also draws attention to the vast number of pending cases. With over 8,000 cases pending in the ECtHR and more than 100,000 within the Turkish legal system, the numbers are unprecedented. The lives of nearly two million people have been unfairly affected by vague anti-terror laws and broad interpretation thereof by Turkish courts.



Political Rhetoric Against Legal Discourse: Turkey's Response to the ECtHR Decision


The verdict in Yalçınkaya v Turkey by the ECtHR seems to have prompted a series of reactions from Turkish authorities. Unfortunately, they are more political in nature than legal. Such a pivotal decision with profound potential implications has been met with a torrent of rhetoric from Turkey's leading political and judicial figures who carefully avoid a legal assessment of it.

 

On 26 September 2023, Justice Minister Yılmaz Tunç took to social media to criticise the ECtHR for allegedly exceeding its jurisdiction by considering evidence that the domestic courts already accepted as good enough. His remarks, which also question the impartiality of the ECtHR, reflect a politically charged perspective, potentially undermining the position of the Court.

 

President Recep Tayyip Erdoğan, on 1 October 2023, said, on the other hand, that ECtHR chose to align itself with terrorist organisations.

 


Conclusion

 

The Yalçınkaya v Turkey case stands as a pivotal moment in Turkey's legal history. Whether Turkey chooses to implement it or not, it will still have a resounding impact not only on the lives of nearly two million people who have been unfairly prosecuted but also on Turkey’s legal system itself. With it, the European Court of Human Rights finally issued a clarion call, urging a revamp of the Turkish legal system in line with the universal principles concerning justice and the rule of law.

 

The Turkish government is now at a crossroads; it will either consider the decision as an opportunity to improve the country’s terrible human rights record or simply ignore it at the expense of its position as a respected democracy and millions of its citizens whose most fundamental human rights are under constant threat.



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