October 25, 2024
by Dr. iur. Yasir Gökce
The European Court of Human Rights (ECtHR) pronounced recently an interesting judgment in the Yasak case, which appears to negate many of its conclusions in the landmark Yalcinkaya ruling. In the latter judgment, the Court characterised the practice of the Turkish judiciary to equate the alleged download or use of an encrypted messaging app with membership to a terrorist organisation a problem of a ‘systemic nature’. This consequently brought the Court to find a violation of Article 7 ECHR (no punishment without law), and Article 6/1 ECHR (right to a fair trial) in respect of Türkiye. The Yalcinkaya judgment raised hopes among the vast number of individuals who were imprisoned for their alleged association with the Gülen Movement, an organisation which the Erdogan government accused of orchestrating the July 15 Coup attempt. The Gülen Movement however condemns the attempt and denies any involvement. Hopes were dashed once again with the Yasak decision, as the Court aligned its assessment of similar activities by Gülen-affiliated individuals under Turkish counterterrorism law with the Erdoğan government’s stance.
The applicant, Mr. Şaban Yasak, is one of hundreds of thousands detained on terrorism charges due to their links to the Gülen Movement. During his time in college, Mr. Yasak allegedly volunteered for the Movement as a senior student supervisor (bölge talebe mesulü), organising events for university students. After exhausting domestic legal remedies, including an unsuccessful appeal and a rejected application to the Constitutional Court, Yasak brought his case before the ECtHR, claiming violations of Article 3 (prohibition of inhuman or degrading treatment), Article 6 (right to a fair trial) and Article 7 (no punishment without law) (§§ 2-11). The Chamber of the Second Section of the European Court, however, found no violation of either article. In coordination with ASSEDEL (L’Association européenne pour la défense des droits et des libertés), the applicant is now considering pursuing an appeal of this decision before the Grand Chamber of the Court.
In this piece, the applicant Mr. Yasak’s claims under Article 3, the Court’s examination of these claims, and its ruling, along with Judge Krenc’s separate opinion, will not be not addressed in detail. Mr. Yasak, invoking Article 3 (prohibition of inhuman or degrading treatment), argued that the conditions of his detention, first in police custody and later in Çorum Prison, violated his rights. While the Court acknowledged that Mr. Yasak may have suffered some distress and hardship during his detention, it considered the broader context, specifically the overcrowding in Turkish prisons following the coup attempt of 15 July 2016 (§ 105). The Court ultimately ruled that the cumulative effect of Mr. Yasak’s detention conditions did not reach the severity threshold required to constitute inhuman or degrading treatment under Article 3 of the Convention (§§ 110-113).
Judge Krenc dissented, referencing the Court’s earlier decision in Muršić, which held that while a personal space of 3 m² represents the minimum standard under Article 3, a space of between 3 and 4 m², when combined with other poor material conditions, could still result in a violation (Muršić, § 139). In Judge Krenc’s view, Mr. Yasak’s personal space of 3.6 m², along with the cumulative hardships he faced—such as having to sleep on the floor, extended detention, an insufficient number of toilets, and poor hygiene—should have led the Court to conclude that there had been a violation of Article 3 (§§ 5-9).
This piece examines the Court’s analysis of the legal characterisation of the Gülen Movement and Yasak’s alleged actions under Türkiye’s counterterrorism laws. Finally, it addresses a broader, deep-seated issue in how the ECtHR approaches authoritarian laws, policies, and practices. The following three sections highlight key issues identified as problematic in the Court’s reasoning: the disregard of Türkiye’s sociopolitical realities, the flawed assessment of the applicant’s actions, and the dismissal of the applicant’s fair trial claims. Each section discusses the relevant case details, the Court’s reasoning, and the shortcomings in its approach concerning these critical issues.
In the absence of a clear, written definition of the role of ‘regional student supervisor / bölge talebe mesulü’, the European Court appears to have relied on the Turkish government’s interpretation and assumptions regarding the position. The Erdoğan government, citing statements from the applicant’s college friends, argued that as a student supervisor, the applicant organised regional activities for the Gülen Movement, arranged conversations (“sohbet”) to introduce students to the organisation’s ideology, and assisted them in preparing for civil service exams. The government further claimed that the applicant was embedded in the Movement’s hierarchical structure, took on responsibilities for its benefit, and operated under a code name, thereby fulfilling the criteria for membership in a terrorist organisation under Article 314 § 2 of the Turkish Criminal Code.
Building on these assertions, the Court inferred the applicant’s mens rea, or criminal intent, from these activities. Specifically, it concluded that the applicant had knowingly aligned himself with the organisation’s goals of recruiting young individuals and infiltrating public institutions with these recruits, thus operating covertly within the Movement’s hierarchy (§§ 164, 165). With this inference, the Court treated the government’s claims as established in relation to its legal characterisation of the Gülen Movement. Furthermore, the Court determined that the offense for which the applicant was convicted had a legal basis ‘at the time it was committed (…) under the relevant national law’ and that it was defined with sufficient clarity to meet the requirement of foreseeability, allowing the applicant to adjust his conduct accordingly, within the meaning of Article 7 (§ 180).
While the European Court was obligated to refrain from acting as a fourth-instance court and questioning the domestic courts’ assessment of the applicant’s alleged criminal conduct, the arbitrary and manifestly unreasonable nature of those assessments should have prompted the Court to conduct a more thorough examination of the role and typical activities of a regional student supervisor within the Gülen Movement (Dulaurans v. France, §§ 33-34; Khamidov v. Russia, §§ 170-75, Anđelković v. Serbia, §§ 24-29). Such an analysis would have enabled the Court to better understand why the applicant might have assumed this role in the Gülen Movement, taking into account the political climate and social realities of Türkiye at the time.
At the outset, as acknowledged by the Court, the Gülen Movement, a civil group inspired by religious values, enjoyed widespread prevalence and respectability across all sectors of Turkish society before the coup attempt (§91). The applicant, clearly influenced as a college student by this widespread acceptance and by Gülen’s teachings that religion and science can coexist and complement each other, became involved in the Movement. He participated in and even organised regular discussions (“sohbet”), an activity the Erdoğan government regarded as part of the second layer of loyalty and as an indication of a lack of awareness regarding the organization’s aims and methods. (§ 88 and § 134). The applicant apparently continued his involvement with the Movement even after it was labelled a terrorist organisation by the Erdoğan government through National Security Council resolutions in 2014 (§137). Notably, this designation followed a significant corruption scandal in December 2013 implicating several ministers in the Erdoğan government, which the government framed as a coup attempt staged by the Movement. During this period, amid the lack of independent media, even opposition politicians and critical journalists appeared on platforms associated with the Movement. In other words, at that time, remaining covertly affiliated with the Movement was not a foreseeable indicator of being associated with a secret terrorist organisation, contrary to the claims made by the government (§88) and the Court (§167). Rather, it reflected a cautious alignment with those seen as victims of the increasingly oppressive and authoritarian policies of the Erdoğan regime.
Finally, it is worth noting that, statistically, an organisation primarily focused on education, with 99% of its members being university graduates, would naturally occupy a proportional share of public positions, which are typically prestigious and well-paid in Türkiye. The Court should have considered this statistical reality, along with the applicant’s and the likes’ right to hold public office, when assessing the applicant’s involvement in preparing students for civil service exams.
All in all, in stark contrast to its approach in Atilla Taş v. Türkiye (§ 134) and Başer and Özçelik v. Türkiye (§203), the Court failed to fully appreciate the political dynamics surrounding the Movement’s fall from grace following the corruption scandals of 2013. By dismissing the aforesaid complexities and focusing instead on isolated governmental assumptions about the Movement’s secrecy and the applicant’s alleged intent, the Court missed an opportunity to fairly evaluate the applicant’s actions within the broader context of social and political realities. A deeper, more balanced assessment would have revealed that the applicant’s role was not inherently linked to criminal behaviour, but rather a reflection of the sociopolitical environment in which he found himself.
In addition to disregarding the sociopolitical realities in Türkiye at the time, the European Court concluded that the applicant’s actions did not enjoy a presumption of lawfulness or constitute an exercise of his Convention rights (§ 164). The Court, however, failed to identify any provision in Turkish law that criminalises the organisation or participation in regular student discussions (“sohbet”). Nor did it cite any law penalising the use of a code name. Other types of evidence cited by the government against the applicant as well—such as social security contributions paid on his behalf by a company affiliated with the Gülen Movement, his deposits in a bank linked to the Movement and his alleged use of an encrypted messaging app —had already been dismissed by the Court as violations of Convention rights in the Yalçınkaya judgment (§ 266-268).
In assessing the applicant’s role in preparing students for civil service exams, the Court largely relied on testimonies from his college friends, many of whom benefited from Türkiye’s ‘active repentance’ law—a mechanism offering reduced or no sentences in exchange for providing information (§§ 6-47, 164). Some claimed the applicant advised them on exam preparation, while a few alleged they were provided with the actual examination booklet (§ 47). While the illegal nature of the latter is indisputable, the Court seemingly overlooked the harsh conditions under which such statements have been typically obtained by the Turkish authorities. For instance, a current report by the Finnish Immigration Service cites 12 Gülen-affiliated women who became pregnant while in custody and were forced to give birth in detention (p. 45). Similarly, former Turkish diplomats were tortured and raped to coerce them into signing pre-prepared confessions of involvement with the Gülen Movement and cheating on civil service exams. More recently, in the infamous ‘teenage girls’ case,’ 16 girls, whose parents were accused of Gülen links, were taken into custody in May 2024, subjected to psychological torture, and pressured to give statements against their parents.
These coercive tactics cast serious doubt on the reliability of the testimonies used against the applicant. By failing to account for both the oppressive environment in which such evidence was produced and the lawful nature of some of the applicant’s acts, the Court’s assessment lacked the necessary scrutiny to ensure a fair evaluation of his actions.
Moreover, without addressing the case under Article 6 or determining whether there was a violation of the right to a fair trial, the Court concluded that the domestic proceedings were neither unfair under the Convention nor infringed upon the applicant’s right to defence (§ 178).
However, the applicant explicitly asserted in his application that he was unable to defend himself effectively due to his lack of physical presence at the final hearing, where he was ultimately convicted. He noted that the hearing took place in the same province as the prison where he was held [Çorum Assize Court and Çorum Prison], while many other inmates were able to participate in hearings physically. Instead, he participated in the hearing remotely. The applicant argued that his remote participation significantly hindered his ability to engage fully in his defence, as he was unable to interact directly with the court, present evidence effectively, or respond promptly to any developments during the proceedings. Furthermore, he was denied the opportunity to challenge the witness statements, as they were allegedly heard in his absence, both physically and remotely (ASSEDEL’s Observations, pp. 7, 8 und 13).
Having omitted the analyses of these complaints, which raise concerns about the equality of arms and the overall fairness of the trial under Article 6 of the Convention, the Court failed to fully address the applicant’s arguments regarding the limitations on his ability to defend himself, ultimately leaving unresolved questions about the adequacy of the procedural safeguards in the domestic proceedings.
The European Court’s failure to thoroughly assess the legal characterisation of the Gülen Movement, the nature of the applicant’s voluntary activities, and the broader sociopolitical realities can be traced to its long-standing cautious approach when addressing authoritarian laws, policies, and practices, both past and present (see here, pp. 41, 47, 50). The Court’s slow or reluctant stance when faced with sensitive ‘red line’ issues in Member States, often to keep them within the ECHR system or avoid jeopardising the implementation of its judgments, has been a subject of academic debate for years.
Baade, for instance, argues that this cautious approach has led the Court to establish criteria that allow it to avoid challenging official national narratives. Similarly, Bodnar suggests that the Court’s silence in key cases in Poland emboldened the authorities to pursue ‘revolutionary’ legal changes. Kurban also contends that by deferring to Türkiye’s counter-terrorism arguments, showing reluctance to acknowledge the ineffectiveness of domestic remedies, or relying on the principle of subsidiarity, the Court has contributed to the continuation of severe human rights violations and the entrenchment of the authoritarian policies in Türkiye, including killings, disappearances, torture, and discrimination against minorities.
In its Yasak decision, the European Court once again deferred to Türkiye’s interpretation of terrorism laws and showed a reluctance to challenge the Erdoğan government’s official narrative of the July 15, 2016 coup attempt. However, the Court must recognise that such caution and reluctance to address the root causes of human rights violations in authoritarian states has only emboldened these regimes to perpetuate their oppressive laws and policies. This pattern of hesitance has already had significant consequences: following the landmark Yalcinkaya decision, where the Court identified systemic human rights violations in Türkiye’s judiciary and pronounced its 60th Article 7 violation (§ 417), the Erdoğan government openly declared its refusal to respect or implement the judgment. As a result, the Turkish courts, swayed by the political climate, ignored the Yalcinkaya ruling and upheld their original decision, leading to a continued violation of Article 7—nullifying its legal effect and leaving Mr. Yalcinkaya unable to benefit from the judgment, while the broader Turkish judiciary remained unaffected.
1 Comment
The applicant’s use of a code name was considered as one of the elements of the crime (para 163). It should be emphasized here that the use of a second name is not a criminal or concealment-oriented situation. This is not a code name but a pseudonym and is widely used in Turkey. Sometimes people use pseudonyms even to separate their private and business lives. In many parts of the world, including Europe, there are many people who use a practical name different from their official name in their daily lives. On the other hand, the applicant’s real name is known by the witness (para 6) who put forward the code name claim, so it is not a secret name.
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