Yalçınkaya ruling highlights systemic problems in Turkey: former ECtHR judge

Ireneusz Kamiński, a Polish law professor and former judge of the European Court of Human Rights (ECtHR), said in an interview that last year’s judgment in the Yalçınkaya case illustrated systemic problems in Turkey that require profound changes to Turkish judicial procedures.

Appearing in a video interview with Solidarity with Others, a Brussels-based human rights NGO, Kamiński said the Yalçınkaya case was just one illustration of a broader problem with the application of the law that affected thousands of people.

“The number of cases similar to Mr. Yalçınkaya’s pending in court is approximately 8,000. This is a huge number of cases currently being considered by the ECtHR,” he said. “More importantly, there are approximately 1,100 similar cases at various levels pending before Turkish courts. Estimates say that the type of violation that occurred in Mr. Yalçınkaya’s case probably affected up to 2,000,000 people in Turkey.

“This points to a huge problem in the process of applying the law and, of course, in the legislation applicable to similar cases in Turkey.”

In September 2023, a court in Strasbourg issued a landmark judgment accusing Turkey of convicting former teacher Yüksel Yalçınkaya for his alleged ties to the Gülen religious movement, as evidenced by his trade union membership, banking transactions and use of the ByLock messaging app.

ByLock, once widely available on the Internet, has been considered a secret communication tool between supporters of the faith-based Gülen movement since the July 15, 2016 coup attempt, despite the lack of any evidence that ByLock messages were related to the failed coup.

Turkish President Recep Tayyip Erdoğan has been attacking supporters of the Gülen movement, inspired by Turkish Muslim cleric Fethullah Gülen, since corruption investigations conducted from December 17 to 25, 2013, which involved then-Prime Minister Erdoğan, members of his family and his inner circle.

Dismissing the investigation as a Gülenist coup and a conspiracy against his government, Erdoğan declared the movement a terrorist organization and began attacking its members. He intensified repression against the movement after the failed coup in 2016.

“There is nothing criminal about having such an app on a mobile phone,” Kaminski said. “However, the Turkish authorities considered the mere fact of downloading the app as sufficient evidence that the person in question must have been involved in illegal activities considered 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 Art. 7 regulating the legal principle of non-punishment without law.

Kamiński said that Art. 7 was found to be violated for several reasons, including the overly broad application of Turkish anti-terrorism law.

“The first consequence of Art. 7 is that all provisions must be formulated with sufficient precision. This means that the legislation cannot be vague or too broad,” he said. “It must be clear for persons who may be prosecuted under national legislation what is prohibited and what penalties are provided for. Third, the application of this criminal legislation cannot be arbitrary.”

The Yalçınkaya ruling also found that Türkiye had violated Art. 6 of the Convention regarding the right to a fair trial. Kamiński said he agreed with the conclusion. “Turkish courts relied on the materials provided by the prosecutor’s office, provided by intelligence agencies, and found them credible and fully admissible for the proceedings. Mr. Yalçınkaya had no access to these materials or even general information about their nature, reliability or how they demonstrated his involvement in criminal activities.”

Although the Strasbourg court in its judgment called on Turkey to address the systemic failings that led to the conviction of Yalçınkaya and thousands of others, and despite the fact that several legal experts and regulators in Turkey and elsewhere urged the execution of the verdict, according to reports indicated that Turkish authorities continue to detain and prosecute people in connection with the use of ByLock.

Turkish anti-terrorism laws are often criticized by human rights groups and international organizations for being too broad and ambiguous, leaving too much room for interpretation.

The country’s post-coup purges included the mass removal of more than 4,000 judges and prosecutors in the immediate aftermath of the failed coup, which many international observers said had a chilling effect on lawyers who continued to work in the judiciary.

Erdoğan’s government is also accused of replacing removed judges with young and inexperienced judges and prosecutors with close ties to the ruling Justice and Development Party (AKP).

These events confirmed the erosion of the Turkish justice system. In the 2023 Rule of Law Index published by the World Justice Project (WJP) at the end of October, Turkey ranked 117th out of 142 countries, down one place from a year earlier.