Lawyers and legal experts in Turkey and abroad have expressed shock and disappointment over a local court’s decision on Thursday, again convicting a former teacher of terrorism, although the European Court of Human Rights found a violation of his fundamental rights in his conviction in a decision last year.
The Kayseri 2nd High Criminal Court handed down a prison sentence of six years, three months to Yüksel Yalçınkaya on charges of terrorist organization membership in the second hearing of his retrial on Thursday. It was the exact same sentence the teacher was given in 2017 and successfully challenged at the ECtHR, with the court issuing a landmark judgement in September 2023.
Yalçınkaya is one of tens of thousands of people who were purged from public service and arrested due to alleged links to the faith-based Gülen movement in the aftermath of a coup attempt in July 2016.
The Gülen movement is accused by the Turkish government and President Recep Tayyip Erdoğan of masterminding the failed coup and is labeled as a “terrorist organization,” although the movement denies involvement in the coup attempt or any terrorist activity.
Following the announcement of the court’s decision, lawyers and others following the trial walked out of the courtroom in protest with apparent shock on their faces.
A video on X shows lawyer Hatice Yıldız expressing anger about the court’s disregard of the ECtHR decision and accusing the judges of not caring about the good of the Turkish people by ignoring the rule of law.
She said everyone in the courtroom voiced outrage at the panel of judges, telling them they should be ashamed of themselves.
Yine yargı skandalı! pic.twitter.com/fcn1l2purN
— Erkam Tufan Aytav (@erkamtufan) September 12, 2024
Lawyer Günal Kurşun, also an associate professor in criminal law who was purged from public service following the coup attempt, was among the observers of the Yalçınkaya trial in Kayseri.
Kurşun said the court’s defiance of the ECtHR decision on Yalçınkaya will have legal repercussions for Turkey considering that the country will have to explain its non-compliance to the Committee of Ministers of the Council of Europe (CoE), which monitors the enforcement of ECtHR judgments.
The ECtHR’s Grand Chamber decided in September 2023 that Turkey had violated three articles of the European Convention on Human Rights in the case of 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 mobile phone app; membership in a labor union and an association affiliated with the faith-based Gülen movement; and having an account at the now-closed Bank Asya, which are all considered signs of membership in the Gülen movement and criminal evidence.
In that judgment the ECtHR underscored that the violations in the conviction were “systemic in nature,” calling on Turkey to take general measures to address the underlying problems, reminding of the existence of over 8,000 similar complaints on its docket.
Turkey was supposed to submit an “action plan” to the ECtHR by May 26 detailing the measures it will take in relation to similar rights violations, but it asked that this deadline be extended to August 1, according to The Arrested Lawyers Initiative, which tweeted an excerpt from the court’s website showing Turkey’s request for additional time last month.
It is not known whether Turkey has as of yet submitted its action plan to the Strasbourg-based court.
France-based human rights lawyer Hakan Kaplankaya said on X that it is impossible for a court which makes its judgements based on law to hand down such a ruling while pointing to a bigger problem within the Turkish judiciary regarding its independence.
He stated that the decision, which he said is full of mistakes, shows that the local court has not assumed the responsibility to change the dominant view and has passed the ball to the higher courts.
Yalçınkaya has the right to challenge his second conviction at an appeals court.
Kaplankaya said the responsibility now lies with the Supreme Court of Appeals and the Constitutional Court to act in line with the ECtHR judgement.
The Arrested Lawyers Initiative, a group advocating the rights of arrested or prosecuted lawyers and human rights defenders, tweeted that the Turkish court’s disregard of the ECtHR’s Yalçınkaya decision is also a failure on the part of the CoE and the Parliamentary Assembly of the Council of Europe (PACE) because the Committee of Ministers has not yet scheduled the Yalçınkaya case for oversight, although the decision was issued a year ago, and that despite the fact that it concerns 8,500 pending and 100,000 potential cases, PACE rapporteurs have shown no interest in the case.
It is also a failing of @coe, @CoE_RuleofLaw, the CoM and @PACE_News. One year since the GC's judgment, the Committee of Ministers has not yet scheduled this case for oversight, despite the fact that this case concerns 8500 pending, 100,000 potential judgment. @PACE_News' 🇹🇷… https://t.co/hF1AxRgAsh
— The Arrested Lawyers (@ArrestedLawyers) September 12, 2024
For the implementation of the ECtHR rulings, the Committee of Ministers is expected to resume its supervisory role and take more robust steps to discharge its mandate of ensuring the necessary individual and general measures are taken by Turkey to implement the court’s ruling.
According to Emre Turkut, a Berlin-based academic and legal consultant, the Kayseri court’s decision, which he described as a “legal catastrophe,” has reinforced the symbolic importance of the Yalçınkaya trial, causing it to join major cases like those of jailed businessman Osman Kavala and jailed Kurdish politician Selahattin Demirtaş.
Turkey also ignored ECtHR judgements in the cases of both Kavala and Demirtaş, who have been behind bars for years after politically motivated trials.
Erkan Şenses, chairman of the Batman Bar Association in eastern Turkey, shared an assessment similar to that of Turkut on X in that Yalçınkaya’s case will from now on be mentioned along with the Kavala and Demirtaş cases in judicial circles.
“It is impossible to talk about the rule of law in a country where the ECtHR decisions, and thus the 90th Article of the Turkish Constitution, are disregarded,” he tweeted.
According to Article 90, the provisions of international human rights conventions shall prevail in the event of a conflict with domestic legislation regarding the same matter.
Turkey was ranked 117th among 142 countries in the rule of law index published by the World Justice Project (WJP) in October 2023.