The Turkish Bar Association (TBB) has released a report on a landmark European Court of Human Rights (ECtHR) judgment delivered last year, stating that Turkey has no other option than to implement the decision, the TR274 news website reported.
Authored by lawyer Serkan Cengiz, the report concerned the ECtHR’s September 2023 ruling on Yüksel Yalçınkaya, a teacher whose conviction on terrorism-related charges was found unlawful by the Strasbourg court.
The report said the ruling has dismantled the legal grounds of Turkish courts’ terrorism-related charges and convictions based on the retroactive criminalization of acts that were not outlawed at the time they occurred, finding them in violation of Article 7 of the European Convention on Human Rights, also known as the “No punishment without law” clause.
The report also highlighted constitutional clauses which stipulate that in the event that ECtHR case law clashes with national legislation and practice in a matter concerning fundamental rights and freedoms, the ECtHR opinion should prevail.
It also underlined that it is the responsibility of all national courts, particularly the Supreme Court of Appeals, to consider the ECtHR judgment when hearing trials and appeals, reminding that failure to uphold the decision could lead to the launching of infringement proceedings, a mechanism that could see Turkey’s expulsion from the Council of Europe (CoE).
The CoE already triggered infringement proceedings against Ankara in February 2022 due to its failure to comply with another ECtHR judgment requiring the release of jailed businessman Osman Kavala, marking the second instance of such a procedure being initiated against a member state.
The Strasbourg court’s recent landmark ruling on Yalçınkaya concerned the teacher’s conviction on account of his alleged links to the Gülen movement, a faith-based group accused by the Turkish government of “terrorist” activities.
In a decision that may potentially have far-reaching implications for thousands facing similar charges in Turkey, the ECtHR said Yalçınkaya’s conviction based on his use of a mobile messaging application and his accounts at a Gülen-affiliated bank was unlawful.
Nevertheless, Turkish officials have signaled their intention to interpret the ruling as an individual case, defying expectations of experts and the court itself to use it as a legal precedent.
Turkish authorities also continue to use the ByLock mobile app as evidence in detaining and prosecuting people in disregard of the Yalçınkaya judgment.
Turkish President Recep Tayyip Erdoğan has been targeting followers of the Gülen movement, inspired by Turkish Muslim cleric Fethullah Gülen, since the corruption investigations of December 17-25, 2013, which implicated then-prime minister Erdoğan, his family members and his inner circle.
Dismissing the investigations as a Gülenist coup and conspiracy against his government, Erdoğan designated the movement as a terrorist organization and began to target its members. He intensified the crackdown on the movement following an abortive putsch in 2016 that he accused Gülen of masterminding. Gülen and the movement strongly deny involvement in the coup attempt or any terrorist activity.
In addition to the thousands who were jailed, scores of other Gülen movement followers had to flee Turkey to avoid the government crackdown.
Turkey’s post-coup purges also included the mass removal of more than 4,000 judges and prosecutors immediately after the failed coup which, according to many international observers, had a chilling effect on the legal professionals who continued to work in the judiciary.
Erdoğan’s government has also been accused of replacing the purged judicial members with young and inexperienced judges and prosecutors who have close links to the ruling Justice and Development Party (AKP).
In a development that confirmed the erosion of the Turkish judiciary, Turkey was ranked 117th among 142 countries in the 2023 Rule of Law Index published by the World Justice Project (WJP) in late October, dropping one place in comparison to the previous year.
