Kerem Gülay, an academic from Turkey’s Koç University, said judges and prosecutors who are responsible for the mass incarceration of people for Gülen movement membership over the use of the ByLock smartphone application could be charged with crimes against humanity if they travel outside the country, the Stockholm Center for Freedom reported, citing Bold Medya news website.
In an interview he gave to journalist Nevşin Mengü on YouTube, Gülay pointed out that the European Court of Human Rights (ECtHR) has concluded that Turkey’s ByLock-related rights violations were systemic in nature, which could be subject to prosecution in other countries under a series of recently passed universal jurisdiction laws, such as the Magnitsky Act in the US.
📌AİHM'in bildirim yaptığı bin dosyanın Türk yargısı için vahim sonuçları
Nevşin Mengü:
💬Gün gelir, devran döner; bu kararları verenler hakim karşısına (evrensel yetki-magnitsky) çıkabilir.Dr. Kerem Gülay:
🗨️Çok daha fazlası! Devranın dönmesine gerek yok. Bu yargıçlar yurt… pic.twitter.com/26uRA3hLnL— BOLD (@BOLDmedya) December 20, 2023
Gülay said there is no statute of limitations when it comes to crimes against humanity.
“It would be a serious problem for Turkey if members of the judiciary were to be exposed to such risks,” he said.
On Monday the Strasbourg court announced that it had notified the Turkish government of 1,000 applications concerning convictions based on ByLock as a follow-up to the case of Yüksel Yalçınkaya, a landmark ruling in September that found the use of the application not to constitute a reliable piece of evidence or a criminal offense.
European Court notifies 1000 applications to the Turkish Government concerning convictions based on use of ByLock messaging application as follow-up to the Yüksel Yalçinkaya v. Türkiye judgmenthttps://t.co/d9ZJ3AnQ9a#ECHR #CEDH #ECHRpress pic.twitter.com/yzh1ohPL7b
— ECHR CEDH (@ECHR_CEDH) December 18, 2023
“A scenario that I have been talking about in my international criminal law lectures since 2019 is gradually materializing,” Gülay said on X, formerly Twitter. “From the minister of justice to the judges and prosecutors, all of them are about to become unable to travel outside the country.”
2008 yılından beri vurguladığım, 2019'dan beri "uluslararası ceza hukuku" derslerimde anlattığım, en az bir sınavda soru olarak sorduğum, konu adım adım gerçek oluyor. Adalet Bakanı'ndan, yargıçlara, infaz savcılarına tek kişi yurt dışına çıkamaz hale gelmek üzere… https://t.co/YtrOVolnc7
— Kerem Gulay (@KeremGulay) December 18, 2023
ByLock, once widely available online, has been considered a secret tool of communication among supporters of the Gülen movement, a faith-based group outlawed by Ankara, since a coup attempt on July 15, 2016, despite the lack of any evidence that ByLock messages were related to the abortive putsch.
The Gülen movement, inspired by Turkish cleric Fethullah Gülen, is accused by the Turkish government and President Recep Tayyip Erdoğan of masterminding the failed coup and is labeled a “terrorist organization,” although the movement denies involvement in the coup attempt or any terrorist activity.
The recent ECtHR notification encompasses five cases — Büyükergün v. Türkiye and 199 others, Berber v. Türkiye and 199 others, Subaşı v. Türkiye and 199 others, Yıldız v. Türkiye and 199 others and Dönmez v. Türkiye and 199 others, totaling 1,000 individual complaints. These cases, submitted to the Strasbourg court between 2019 and 2023, concern convictions for membership in the Gülen movement.
The applicants argue that their convictions, based on their alleged use of ByLock, violate the principles of the European Convention on Human Rights (ECHR), specifically under Article 7 (no punishment without law) and Article 6 § 1 (right to a fair trial).
This development comes after the ECtHR’s Grand Chamber decision on Yüksel Yalçınkaya v. Türkiye of September 2023. In that judgment the ECtHR ruled that Turkey had violated three articles of the ECHR in the case of former teacher 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.
The Grand Chamber based its ruling on Yalçınkaya’s alleged use of the ByLock app, membership in a labor union and an association affiliated with the faith-based Gülen movement; and having an account at now-closed Bank Asya, which are all considered signs of membership in the Gülen movement and criminal evidence.
Legal experts said the grand chamber’s decision made clear that use of ByLock, depositing money at a Gülen-linked bank or being a member of a Gülen-affiliated association cannot be considered criminal evidence against Gülen movement members.
In that judgment, the ECtHR underscored the violations that occurred in the conviction were “systemic in nature,” calling on Turkey to take general measures to address the underlying problems, reminding of the presence of over 8,000 similar complaints on its docket.
However, Turkish government officials signaled an unwillingness to address the issue.
The Turkish government, now notified of these cases, has the opportunity to submit observations. However, the ECtHR has specified that these observations should primarily address the factual aspects of the applications, avoiding legal issues already settled in the Yalçınkaya case.
The European court said its rulings on these cases will come at a later stage.
In a press release issued by the ECtHR’s Registry, the Gülen movement is referred to as “Fetullahçı Terör Örgütü / Paralel Devlet Yapılanması (FETÖ/PDY),” a derogatory acronym Ankara uses to refer to the Gülen movement as a terrorist organization, while clarifying that the group was “formerly known as the Gülen movement.”
Although the press release states that it is issued by the registry and is not binding on the ECtHR, a document shared on the official social media accounts of the European rights court using language that shows a preference for Ankara’s official line on the Gülen movement did not go unnoticed by legal experts.
The experts noted that Hasan Bakırcı, a Turkish national working for the ECtHR Registry had revealed his bias against the Gülen movement in conspiratorial social media posts, jeopardizing the impartiality of the Strasbourg court.
Following the coup attempt, 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 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.
In addition to the thousands who were jailed, scores of other Gülen movement followers had to flee Turkey to avoid the government crackdown.
Turkey was ranked 117th among 142 countries in the rule of law index published by the World Justice Project (WJP) in October, dropping one rank in comparison to last year.