Ireneusz Kamiński, a Polish professor of law and former judge at the European Court of Human Rights (ECtHR), said in an interview that last year’s Yalçınkaya judgment by the court has illustrated systemic problems in Turkey that requires profound changes in Turkish judicial procedures.
Appearing in a video interview by Solidarity with Others, a Brussels-based human rights NGO, Kamiński said the Yalçınkaya case was only one illustration of a wider problem with the application of the law, which has affected thousands of people.
“The number of similar cases to that of Mr. Yalçınkaya pending at the court is around 8,000. That is a huge number of cases currently being considered by the ECtHR,” he said. “Even more importantly, around 1,100 similar cases are pending at different levels in Turkish courts. Estimates say that as many as 2,000,000 people in Turkey are possibly affected by the kind of violation that happened in the case of Mr. Yalçınkaya.
“This indicates a huge problem present in the law application process and, of course, in the legislation applicable to similar cases in Turkey.”
In September 2023 the Strasbourg court delivered a landmark judgment faulting Turkey over the conviction of former teacher Yüksel Yalçınkaya due to his alleged links to the faith-based Gülen movement, which was demonstrated through his labor union membership, banking transactions and use of the ByLock messaging application.
ByLock, once widely available online, has been considered a secret tool of communication among supporters of the faith-based Gülen movement since a coup attempt on July 15, 2016, despite the lack of any evidence that ByLock messages were related to the abortive putsch.
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 the abortive putsch in 2016.
“There is nothing criminal about having such an application on your cell phone,” Kamiński said. “However, Turkish authorities considered the mere downloading of this application as sufficient evidence that the person must have been involved in illegal activities deemed very serious for public order.”
In the Yalçınkaya judgment, the European court accused Turkey of violating three articles of the European Convention on Human Rights, including Article 7 governing the legal principle of no punishment without law.
Kamiński said Article 7 was deemed to have been violated for several reasons including the overly broad application of Turkey’s anti-terror laws.
“The first consequence of Article 7 is that any legislation must be formulated with sufficient precision. This means the legislation must not be vague or overly broad,” he said. “It must be clear to individuals who may be prosecuted under national legislation what is prohibited and what penalties are provided for. Third, the application of this penal legislation must not be arbitrary.”
The Yalçınkaya ruling also concluded that Turkey violated Article 6 of the convention related to the right to a fair trial. Kamiński said he agrees with the conclusion. “The Turkish courts relied on material submitted by the prosecution, which was provided by intelligence agencies and accepted this material as reliable and fully acceptable for the procedure. Mr. Yalçınkaya did not have access to this material or even general information about its character, reliability, or how it demonstrated his involvement in criminal activities.”
Although the Strasbourg court in its judgment called on Turkey to address the systemic deficiencies that have led to the conviction of Yalçınkaya and thousands of others, and despite the fact that several legal experts and watchdogs within and outside Turkey urged the implementation of the ruling, reports have indicated that the Turkish authorities continue to detain and prosecute people based on ByLock use.
Turkey’s anti-terror laws are frequently criticized by rights groups and international organizations for being overly broad and ambiguous, allowing too much room for interpretation.
The post-coup purges in the country 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.
