Tolga Şirin, a lecturer in constitutional law at İstanbul’s Marmara University, said Turkish authorities should quickly implement the landmark Yüksel Yalçınkaya ruling of the European Court of Human Rights (ECtHR) and open the way for retrials in similar cases, Bold Medya reported on Wednesday.
In an expert opinion Şirin said defendants in these cases should request that the authorities have the Yalçınkaya judgment translated into Turkish for the courts’ consideration.
He said the decision, while not identified as a pilot judgment by the court, has implications for thousands of similar applications that are either pending before the Strasbourg court or will potentially be lodged in the future.
In September 2023 the ECtHR released its judgment on Yüksel Yalçınkaya, a teacher convicted of terrorism over his alleged links to the faith-based Gülen movement.
The European court said Yalçınkaya’s conviction on the basis of activities such as the use of ByLock, a mobile messaging application that Turkish authorities claim was exclusively used among members of the Gülen movement, or having an account at Bank Asya, a financial institution shut down by the government over its affiliation with the group, was in violation of several articles the European Convention on Human Rights (ECHR).
In his expert opinion Şirin pointed out that the ECtHR views as a systemic issue the use of ByLock as evidence of terrorism and not something that is specific to the Yalçınkaya case.
“This problem has impacted and continues to impact many people, and that is why concrete steps should be taken to remediate it,” he said. “While the state is free to choose its instruments for remediation in principle, each branch of government (legislative, executive and judiciary) is supposed to act in good faith and in compliance with the judgment’s intent.”
Şirin said a retrial is the best way of eliminating a rights violation and that the Yalçınkaya judgment provides the grounds for a retrial in applicable cases.
“This is not a matter of discretion,” he added, underlining Article 90 of the Turkish constitution which holds that international agreements to which Turkey is a party, such as the European Convention on Human Rights, prevails over domestic law in the event of a dispute between the two.
In January the Turkish Bar Association (TBB) released a report that expressed views similar to Şirin’s expert opinion.
The top lawyers group said Turkey has no other option than to implement the Yalçınkaya decision.
However, despite repeated calls from domestic and international observers and experts, 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 have also continued to use the ByLock mobile app as evidence in detaining and prosecuting people with alleged Gülen links, 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.
