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ECtHR ruling on teacher puts more pressure on Turkey to restore rule of law

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Fatma Zibak

Turkey needs to halt the use of noncriminal actions to prosecute people on terrorism charges, amend its broad counterterrorism laws and take necessary steps to prevent or address rights violations suffered by hundreds of thousands of people, according to a European Court of Human Rights (ECtHR) decision about a teacher handed down on Tuesday, lawyers have said.

The Grand Chamber of the ECtHR faulted Turkey due to violations of three articles of the European Convention on Human Rights (ECHR): Article 6, which concerns the right to a fair trial; Article 7 on no punishment without law; and Article 11 on freedom of assembly and association.

The court’s decision concerns Yüksel Yalçınkaya, 57, who was convicted of membership in a terrorist organization and sentenced to six years, three months’ imprisonment in 2017 by a high criminal court due to his links to the Gülen movement, accused by the Turkish government of masterminding a failed coup in July 2016. The movement strongly denies any involvement in the failed putsch.

The court based its ruling on his alleged use of the ByLock app, membership in a labor union and an association affiliated with the Gülen movement and having an account at now-closed Bank Asya. Yalçınkaya’s sentence was upheld by the top appeals court in 2018 while the country’s Constitutional Court rejected as inadmissible an application lodged by him, which meant his exhaustion of the domestic remedies and take his case to the Strasbourg-based court.

The Grand Chamber, where the ECtHR referred Yalçınkaya’s case due to its complexity, called on Turkey to take general measures as appropriate to address the systemic problems, notably with regard to the Turkish judiciary’s approach to ByLock evidence, saying that there are already 8,500 applications on the court’s docket involving similar alleged rights violations and thousands are likely to be lodged as Turkish authorities have identified around 100,000 ByLock users.

According to Ali Yıldız, a Brussels-based lawyer, Turkey is now under an obligation to comply with the judgment of the Grand Chamber and take the necessary steps to prevent similar violations.

“To this end, Turkey must reform its anti-terror legislation and put an end to arbitrary anti-terror prosecutions,” he told Turkish Minute.

The Turkish government is frequently accused of using the country’s counterterrorism laws to punish its critics, and its refusal to amend the controversial laws have led to its membership talks with the EU to hit a deadlock.

ByLock, once widely available online, has been considered a secret tool of communication among supporters of the Gülen movement since the coup attempt on July 15, 2016, despite the lack of any evidence that ByLock messages were related to the abortive putsch.

The Grand Chamber’s Tuesday decision, which was made with a majority of votes, cannot be appealed.

Gökhan Güneş, an expert on international criminal law and a human rights activist, said on his X social media account that the Grand Chamber not only examined Yalçınkaya’s case but also made significant assessments for similar applications. He said the rights court may face hundreds of thousands of similar applications in addition to more than pending 8,000 cases; hence it wants the Turkish government to address this systemic problem by taking the necessary steps.

Thousands of people have been investigated and convicted of terrorism links in Turkey due to their ByLock use.

In an earlier ruling in July 2021, the ECtHR ruled in the case of former police officer Tekin Akgün that the use of the ByLock application is not an offense in itself and does not constitute sufficient evidence for an arrest. Yet, detention or prosecution of people due to their ByLock use continued unabated.

Mustafa Yeneroğlu, a lawyer and an opposition lawmaker from the DEVA Party, said on X that the ECtHR has confirmed the objections he has been making for years against the conviction of people due to ByLock use or having a bank account at a Gülen-linked bank, which are not criminal acts.

Yeneroğlu said the court’s decision gives some hope about the restoration of law in the country but that it is also saddening.

“Turkey has no other choice but to immediately return to the rule of law,” he said.

Turkey, which many say underwent an erosion in the rule of law following the coup attempt, was ranked 116th among 140 countries in the rule of law index published by the World Justice Project (WJP) in October 2022. The country saw the purge of more than 4,000 judges and prosecutors following the failed putsch.

The purge of the so many members of the judiciary is seen by many as an attempt by President Recep Tayyip Erdoğan to redesign the Turkish judiciary and fill it with pro-government judges and prosecutors.

Kemal Albayrak, a former lawmaker from the ruling Justice and Development Party (AKP), said in remarks to Bold Medya that the Grand Chamber ruling puts pressure on the Turkish government but especially the opposition to immediately bring the issue to the nation’s agenda and make sure that prosecutions based on noncriminal actions no longer take place in the country.

Albayrak said the absence of the rule of law leads to a deterioration in the country’s performance in other areas such as the economy, human rights and security, so it is of utmost importance to address it.

Lawyer Figen Albuga Çalıkuşu said the most important rights violation in Yalçınkaya’s case was the violation of Article 7 because it makes it clear that nobody can be found guilty of an act that is not a crime according to domestic or international law, such as using the ByLock application or depositing money at Bank Asya.

She said the ruling will set a precedent for the purge victims as well as those who were convicted of terrorist organization membership due to their links to the Gülen movement although they were not involved in any acts of violence.

Meanwhile, the Italian Federation for Human Rights (FIDU) said in a statement on its X social media account that it is pleased that the ECtHR has ruled that Turkey’s post-coup prosecutions, which criminalize perfectly lawful activities under its overly broad and unpredictable anti-terrorism law, are unlawful.

“Turkey is now under an obligation to comply with the judgment of the General Chamber and, in particular, to take steps to prevent similar violations. To this end, Turkey must reform its anti-terror legislation and put an end to arbitrary anti-terror prosecutions,” the federation said on its X account.

A report drafted by the NGO in July, titled “Perils of Unconstrained Prosecutorial Discretion: Prosecuting Terrorism Offences in Post-Coup Turkey,” examined the adherence of Turkish prosecutors to domestic standards and international legal obligations in terrorism-related prosecutions in the post-coup period, shedding light on the alarming misuse of anti-terrorism and security tools.

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