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[OPINION] Court registrar’s conspiratorial tweets bring impartiality of ECtHR into question

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Cengiz Yılmaz*

The away match against Adana Demirspor on Feb. 2 was a must-win for the Fenerbahçe football club, which was already four points behind arch-rival Galatasaray in the Turkish Premier League. Fourteen minutes into the match, Fenerbahçe’s Mert Hakan Yandaş controlled the ball five meters in front of the penalty area and fired a brilliant shot that hit the back of the net.

What happened next, strangely enough, showed how the impartiality of the European Court of Human Rights (ECtHR) is being undermined by the very people who are responsible for its preservation.

The referee, Ali Palabıyık, after drawing that now-famous rectangle on air, which indicates that he will consult the Video Assistant Referee (VAR) to make a decision, and taking quite a considerable amount of time in front of the VAR monitor, canceled the goal scored by Fenerbahçe. This was only one of the few controversial decisions he had to make during that wild game, which ended one all and dented Fenerbahçe’s title hopes.

After the game, Fenerbahçe supporters were fuming. Some board members publicly accused the referee and the Turkish Football Federation of conspiring against Fenerbahçe, alluding to the infamous 2011 match-fixing scandal which saw Fenerbahçe’s then-chairman Aziz Yıldırım arrested, tried and jailed, seen by some Fenerbahçe fans as a conspiracy against their team.

The match-fixing scandal became news in the summer of 2011, when police launched an investigation into 19 football matches suspected of being fixed, and by July 10, 61 people had been arrested, including Yıldırım and Turkish national players.

One of the prosecutors who worked on the match-fixing investigation was Zekeriya Öz, a public prosecutor with special powers who was also one of the lead prosecutors that carried out the high-profile “Ergenekon” investigations, which turned into trials between 2008 and 2013. The Ergenekon case involved allegations of a shadowy and illegal network within the Turkish bureaucracy and military known as Ergenekon. The clandestine organization was allegedly plotting to overthrow the government. Öz’s handling of the case drew ire from some Turkish secularists and nationalists, especially for the arrest of scores of journalists, academics and high-ranking military officials. They branded the whole case a plot by the Gülen movement and the ruling Justice and Development Party (AKP), both of which they accused of trying to extend their influence within the Turkish bureaucracy. Öz’s involvement with the high-profile and politically charged Ergenekon trials and the match-fixing investigations made the Gülen movement a culprit in a conspiracy for certain Fenerbahçe fans.

On July 2, 2012, a specially authorized Turkish court convicted and sentenced Yıldırım to six years, three months in prison on match-fixing charges. Fenerbahçe’s then-vice chairman Şekip Mosturoğlu was sentenced to one year, 10 months and 10 days in prison.

When the corruption investigations of December 2013, in which Öz was again involved, implicated then-prime minister and current president Recep Tayyip Erdoğan’s son and some of the family members of his ministers, Erdoğan declared the Gülen movement public enemy number one. Since 2013 Erdoğan has been accusing the movement of having been involved in dozens of conspiracies despite the lack of any credible evidence. The match-fixing scandal is one of them. His AKP government also holds the movement responsible for a failed military coup on July 15, 2016, a claim that is strongly denied by the movement.

Following the coup attempt of July 2016, hundreds of thousands of people, including judges, prosecutors and civil servants, were dismissed from their jobs as part of the Turkish government’s purge of members of the Gülen movement. The extent of the persecution of the movement was so enormous that according to official numbers, more than 2 million people have so far been investigated, arrested or imprisoned for their links to it. The members of the movement have not only been purged from the bureaucracy but were also isolated from large swaths of society.

The Gülen movement remains a useful scapegoat for those who seek to explain their shortcomings and failures by claiming some plot against them.

The match-fixing case was retried in 2015, and the court acquitted all the people who had been convicted. Following that, an indictment by the Bakırköy Chief Public Prosecutor’s Office accused 38 former judges and prosecutors of involvement in a conspiracy in the match-fixing investigation on behalf of the Gülen movement.

After the final whistle of the Adana Demirspor-Fenerbahçe match, a person named Hasan Bakırcı took to Twitter, just like thousands of other Fenerbahçe supporters, and railed against the referee, whom he believed was involved in a conspiracy against his team. He also accused a certain group without naming them that he alleged had conspired against Fenerbahçe in 2011, claiming that the current situation was similar.

It was an eagle-eyed Hasan Dursun, a former prosecutor, who first noticed the significance of that tweet since he knew exactly who Hasan Bakırcı was and used to regularly “mention” him in his tweets concerning the ECtHR, confirming the tweeter’s identity with former colleagues at the European court.

“With what motivation and audacity did Hasan Bakırcı (@HASANBAKIRCI17), an officer at the [ECtHR] and working as the department head of cases [coming] from Turkey, make the following ‘scandalous’ posts?” Dursun tweeted.

 

Dursun also shared a screenshot of one of Bakırcı’s earlier posts from July 2022, where he comments, “Nothing is a coincidence,” along with a photo in which Turkish cleric Fethullah Gülen, who inspired the Gülen movement, and Adnan Polat, a former president of Fenerbahçe’s arch-rival Galatasaray, appear to be interviewed together some time in the 1990s, implying that Gülenists were closer to Galatasaray and wanted to conspire against Fenerbahçe.

According to the ECtHR’s website, there is a registrar named Hasan Bakırcı who works in the Section II administrative unit of the Strasbourg court. What is more striking is that the screenshots of Bakırcı’s tweets shared by Dursun showed that the handle was based in Strasbourg. Since then, Bakırcı’s Twitter account has been closed.

According to the ECtHR, Turkey is the biggest “case provider,” with 20,110 pending applications, half of which were made after the coup attempt of July 2016. That means the court is considering at least 10,000 applications concerning applicants whose rights Turkey has violated for their alleged links to the Gülen movement, as an overwhelming majority of post-2016 ECtHR applications come from this group, due to a government crackdown on them.

As far as such people are concerned, the ECtHR’s track record has been abysmal. First, it held that a commission the Turkish government set up to examine complaints from individuals who were adversely affected by government decree-laws during a two-year state of emergency (OHAL) in Turkey after the 2016 coup attempt was an “effective domestic remedy,” which significantly prolonged the process of exhausting domestic remedies, a precondition to filing an application at the European rights court.

Then there is Robert Spano, the former president of the court who saw nothing wrong with traveling to Turkey at the height of the pandemic with Saadet Yüksel, the court’s Turkish judge. At a time when he should have been burning the midnight oil and considering thousands of applications concerning human rights violations committed by Turkish officials, he was shaking hands with President Erdoğan at the latter’s lavish “palace,” visiting a local municipality in southeastern Turkey whose mayor was undemocratically removed from office and which was being run by a “trustee” appointed by Erdoğan himself, and last but not least, accepting an honorary doctorate from a state university from which hundreds of academics had recently been dismissed, the very academics on whose applications Spano was sitting.

Judge Yüksel, on the other hand, raised quite a few eyebrows during the Yalçınkaya v. Türkiye hearing at the Grand Chamber of the court last month. Not only was she seen speaking with Turkey’s counsel in Turkish, but she also seemed to go to great pains to help the Turkish side with their arguments when questioning the counsel for the applicant. She proved Erdoğan, who went to great lengths to install her on the court, to have been right. After all, Yüksel came from an Islamist family with close links to Erdoğan. Her brother was a co-founder of Erdoğan’s AKP, and she is associated with an Islamist organization where his brother once served.

Because of all this, the victims of human rights violations committed by Turkey are fairly sensitive to any sign indicating a lack of impartiality on the court’s part. It is that kind of sensitivity that caused such a reaction to the tweets posted by Bakırcı, who harbored a total contempt of members of the Gülen movement, to the extent that he could hold them collectively responsible for a refereeing mistake in a football game that did not go his way.

On the other hand, Bakırcı occupies a critical position at the court. According to Article 24 of the European Convention on Human Rights, registrars are responsible for providing administrative and, more importantly, legal support to the court. According to the Council of Europe’s guidelines, he, as a registrar, is tasked with “supplying opinions and information, in particular to the trial benches and the members of the Court.” Due to the critical nature of his position, the same guidelines require him to “adhere to strict conditions as to his independence and impartiality.”

A senior court official who publicly reveals his utter contempt for a group of people who constitute more than half of his 20,000-case workload should no longer be allowed to provide a legal opinion on the matters of such applicants. The court must, without delay, start a thorough investigation into this serious allegation. If found responsible, the court must take immediate action to prevent Bakırcı’s bias from doing injustice to the victims of human rights violations in Turkey. That is, if it is concerned about its already diminished reputation.

* Cengiz Yılmaz is a Turkish lawyer registered with the İstanbul Bar Association. He is using a pseudonym out of security concerns.

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