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[INTERVIEW] Unlawful convictions by hundreds of courts: ECtHR has stripped Turkish judiciary of all arguments

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Bünyamin Tekin

A recent landmark ruling by the European Court of Human Rights (ECtHR) shows that hundreds of Turkish courts have unlawfully convicted thousands of people without proving they committed any crimes. This points to systematic and widespread crimes against humanity committed as part of a crackdown on hundreds of thousands of people under the pretext of an anti-coup campaign following a failed coup in 2016, a legal expert told Turkish Minute in an extensive written interview.

Gökhan Güneş, an expert on international criminal law and a human rights activist, gave an interview to Turkish Minute about the implications of a landmark decision by the ECtHR on Sept. 26 that faulted Turkey for the conviction of a teacher on terrorism charges due to his links to a faith-based group.

The Grand Chamber of the ECtHR ruled that Turkey had violated three articles of the European Convention on Human Rights in the case of Yüksel Yalçınkaya: 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.

Yalçınkaya is a former teacher convicted of links to the Gülen movement, a faith-based group accused by the Turkish government of orchestrating the failed coup on July 15, 2016 due to his alleged use of a mobile application, his bank account and labor union membership. The court concluded that Yalçınkaya’s conviction violated several legal principles enshrined in the European Convention on Human Rights, namely the right to a fair trial, the principle of no crime without law and the right to association.

“After the events of July 15, tens of thousands of people with no connection to terrorism were treated as terrorists. Many lost their jobs, families and health. Some even died in prison or while trying to escape these injustices,” Güneş says.

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 2016 abortive putsch that he accused Gülen of masterminding. Gülen and the movement strongly deny involvement in the coup attempt or any terrorist activity.

Following the failed coup the Turkish government declared a state of emergency and carried out a massive purge of state institutions under the pretext of an anti-coup fight. More than 130,000 public servants, including 4,156 judges and prosecutors, as well as 24,706 members of the armed forces were summarily removed from their jobs for alleged membership in or relationships with “terrorist organizations” by emergency decree-laws subject to neither judicial nor parliamentary scrutiny.

According to the latest figures announced by the minister of justice, 253,754 people have been tried for membership in the Gülen movement, of whom 122,904 were convicted.

In addition to the thousands who were jailed, scores of other Gülen movement followers had to flee Turkey to avoid the government crackdown. Those who wanted to flee the country took dangerous journeys across the Evros River or the Aegean Sea. Some were arrested by Turkish security forces; some were pushed back to Turkey by Greek security; and others perished on their way to Greece.

Gökhan Güneş was born in Ankara in 1979. After completing high school at Ankara Atatürk High School, he went to Switzerland for his undergraduate education. He completed his bachelor’s degree at the University of Zürich Law School and continued on to graduate and doctoral studies at the same university. He is currently working as a legal scholar, focusing on human rights law.

“During these seven years, it has never been proven or even investigated that people participated in the Gülen movement with the aim of overthrowing the constitutional order, as assumed by Turkey’s Supreme Court of Appeals,” Güneş says.

The Turkish judiciary, knowing that the alleged aim and the accused individuals’ involvement were fictional, replaced the elements of these unproven crimes with legal and routine activities, calling them ‘criteria.’”

The criteria Güneş refers to are such activities as having an account at the now-closed Bank Asya, one of Turkey’s largest commercial banks at the time; using the encrypted ByLock messaging application, which was available on Apple’s App Store and Google Play; and subscribing to the Zaman daily or other publications affiliated with members of the movement. These were accepted as benchmarks for identifying and arresting alleged followers of the Gülen movement on charges of membership in a terrorist organization.

Teacher Yalçınkaya was convicted of membership in a terrorist organization and sentenced to six years, three months’ imprisonment in 2017 by a criminal court due to his links to the Gülen movement. 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 Bank Asya. Yalçınkaya’s sentence was upheld by the Supreme Court of Appeals in October 2018.

The Turkish Constitutional Court also rejected as inadmissible an application lodged by Yalçınkaya.

A certificate of shame

“The ECtHR’s Yalçınkaya judgment showed the world that people were sentenced and punished under worse conditions than in the Middle Ages,” Güneş states.

“It confirmed that tens of thousands were punished in violation of the fundamental legal principle that punishments must correspond to crimes—a rule that applies even in extraordinary situations. The decision announced that punishments were imposed without a crime actually having been committed.”

Experts, including Güneş, say the ECtHR ruling will have an impact on the conviction or trial of thousands of people who face terrorism charges due to their affiliation with the Gülen movement.

“Normally, the decisions on rights violations issued by the ECtHR only have an impact on the person for whom they were issued, as they are individual applications,” Güneş points out.

“However, the Yalçınkaya decision is an exception to this rule. In that decision, the ECtHR spoke of a systemic problem and stated that it would resolve the more than 8,000 pending cases and tens of thousands of ongoing cases in domestic law on the basis of the principles set out in that decision. In other words: If Turkey does not find a solution to this systemic problem, the ECtHR openly stated that it would issue violation decisions in tens of thousands of similar cases. The ECtHR has stated that it sees a similar problem in thousands of pending cases, namely automatic punishment based on such criteria accepted as evidence without proving the elements of the crime.”

Dr. Güneş says Yalçınkaya is set for a retrial and is likely to be acquitted. For him, it’s highly unlikely that the retrial court will repeat the same legal mistakes and issue a penalty. Others in similar situations will also seek retrials, citing specific articles in the Turkish Penal Code, the constitution and the European Convention on Human Rights (ECHR). Güneş expects them to be acquitted as well.

“The Yalçınkaya case serves as a blueprint, as it shares similarities with other cases in terms of evidence and legal flaws. This reveals a striking pattern: Hundreds of courts across Turkey have been making the same unlawful decisions for seven years, providing clear evidence of systematic, widespread and organized crimes against humanity,” Güneş says.

When asked if using the encrypted messaging app ByLock is a legitimate piece of evidence for establishing a crime, Güneş said while the ECtHR doesn’t generally interfere with national courts’ discretion on evidence, it emphasizes the right to a fair trial. In the Yalçınkaya case, the ECtHR found that relying solely on ByLock data as conclusive evidence violated this right. The court suggests that for ByLock to be considered valid evidence, its raw data must be reliable and open to examination by the defense. However, the data was tampered with by Turkey’s National Intelligence Organization (MİT), and it is technically impossible to reverse it to its original state.

According to Güneş, even if these conditions are met and the raw data is acquired, ByLock usage would only serve as initial evidence of a connection to the Gülen movement and would still require further proof to establish that such connection is a crime.

General measures to address systemic issues

The ECtHR has called for general measures to rectify the systemic issues plaguing Turkey’s judicial system. According to Güneş, these measures include changing the judicial approach in trials, legal reforms and possibly training programs for members of the judiciary. “The necessary steps should be taken to prevent files that could lead to violations similar to those identified by the ECtHR from reaching the court,” Güneş adds.

The Committee of Ministers of the Council of Europe plays a vital role in ensuring that ECtHR judgments are implemented. “It’s less about flexibility and more about whether the country is showing a sincere willingness to implement the judgment,” Güneş points out. The committee can adopt interim resolutions and even consider the suspension of a member state that consistently fails to comply.

Güneş believes the Yalçınkaya decision marks a new era in the fight for human rights in Turkey. “This decision provides a historic opportunity for people who have been victimized for seven years to reclaim their rights,” he says. For Güneş, the ruling serves as a precedent that could benefit not just the victims but Turkey as a whole.

If Turkey fails to implement the Yalçınkaya decision, it could face severe repercussions.

“The ECtHR will have to take measures to quickly conclude files similar to Yalçınkaya to prevent its system from becoming unworkable for Turkey,” Güneş warns. He also notes that the judiciary in Turkey cannot afford to ignore this landmark decision.

“No member of the judiciary can ignore a violation decision with such severe findings,” he states.

When asked about whether the Erdoğan government will abide by the ECtHR decision, Güneş said he thinks the Turkish government can’t take such a risk of straying from Turkey’s obligations under the ECHR.

“I think the real move will be made by the judiciary and that they will try to reverse this unlawful state of affairs by using the ECtHR decision as an opportunity,” he says.

“Victims now have a historic document that will serve as a precedent for proving their innocence at some point. From now on, they will continue their struggle more confidently, aware of this and with the consciousness of being right,” Güneş underlines.

For many experts the Yalçınkaya decision has set a precedent that could potentially change the course of human rights and judicial practices in Turkey.

As Güneş puts it, “After this date, nothing will be the same, either for those who caused these injustices or for the victims who have never strayed from the path of the law.”

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