Kayseri, September 12, 2024 – In a significant legal development, the Kayseri 2nd Assize Court has reaffirmed the conviction of Mr. Yüksel Yalçınkaya, defying a previous ruling by the European Court of Human Rights (ECtHR). This decision comes despite the Grand Chamber’s judgment, which found that Türkiye had violated Articles 6, 7, and 11 of the European Convention on Human Rights in Yalçınkaya’s case.
Mr. Yüksel Yalçınkaya was initially convicted in 2017 for alleged membership in a terrorist organization, based on his use of the ByLock messaging app and transactions with Bank Asya, both linked to the Gülen movement. However, the ECtHR ruled in 2022 that Türkiye had violated his right to a fair trial, the principle of legality in criminal law, and the right to freedom of assembly and association, and ordered a retrial.
Despite this binding decision, the Turkish court reaffirmed Yalçınkaya’s conviction after a retrial that commenced in November 2023. During the retrial, the court refused requests from the defense to access critical ByLock data and dismissed contradictory witness testimonies. The prosecutor reiterated the original charges based on ByLock use, affiliation with Gülen-linked organizations, and financial transactions with Bank Asya, without addressing concerns about fundamental rights violations raised by the ECtHR.
This ruling raises serious concerns about Türkiye’s adherence to its international human rights obligations. Under Article 311/2 of the Turkish Criminal Procedure Code, domestic courts must reopen criminal cases when the ECtHR finds a violation. Article 46 of the European Convention on Human Rights, which Türkiye is bound to as per Article 90 of its Constitution, also obliges compliance with ECtHR rulings.
Both the Siirt Bar Association and the Ankara Bar Association issued strong statements condemning the court’s decision and Türkiye’s broader failure to implement ECtHR rulings.
The Siirt Bar Association emphasized that adherence to ECtHR decisions is a requirement for maintaining the rule of law, stating, “Failure to implement decisions by the ECtHR and the Constitutional Court undermines trust in the judicial system and threatens the very essence of the rule of law in Türkiye.” The statement further noted that ECtHR decisions take precedence over domestic rulings and warned that such defiance risks deepening the systemic problems within the judiciary.
The Ankara Bar Association released a strongly-worded statement, warning that failing to implement ECtHR rulings not only undermines the rule of law but could lead to severe consequences for Türkiye on the international stage. The statement noted, “It is essential that Türkiye takes both individual and general measures to ensure the full execution of ECtHR judgments, particularly in cases where the court has identified human rights violations. Failure to do so could result in serious sanctions against the state.” The Association further emphasized that disregarding these rulings “denies the rule of law and shows a lack of respect for basic human rights and the human rights system.”
The statement also highlighted that the non-implementation of the Yüksel Yalçınkaya judgment, alongside other notable cases such as Osman Kavala, Can Atalay, and Selahattin Demirtaş, would inevitably lead to severe sanctions against Türkiye in future international proceedings. “The failure to execute these high court rulings deepens systemic issues, exacerbates the legal crisis in the country, and leads to repeated violations on the same matters, making judicial recourse meaningless.”
In a call to action, the Ankara Bar Association stated: “We must put an end to the recent trend of ignoring high court rulings and trampling on the rule of law. The obligations arising from the decisions on Yüksel Yalçınkaya, as well as other high-profile cases like those of Osman Kavala and Selahattin Demirtaş, must be fulfilled immediately.”
Erkan Şenses, President of the Batman Bar Association, also voiced his disapproval, stating: “The Kayseri 2nd Assize Court, in today’s retrial, ignored the ECtHR Grand Chamber ruling in Yalçınkaya v. Türkiye (15669/20) and once again sentenced Yüksel Yalçınkaya to the same conviction. From now on, alongside Selahattin Demirtaş and Osman Kavala, we will also be mentioning Yüksel Yalçınkaya’s name. In a country where ECtHR rulings—and thus Article 90 of the Constitution—are disregarded, the rule of law cannot be said to exist. My condolences to all of us.”
Adding to the criticism, Mustafa Yeneroğlu, a Deputy for İstanbul and a lawyer, strongly condemned the court’s decision on social media. He stated, “The ECtHR ruling in Yalçınkaya’s case was one of the important opportunities for our country to return to the rule of law and normalcy. However, this opportunity has also been squandered. The Kayseri 2nd Assize Court ignored the clear legal violations that the ECtHR pointed out in Yalçınkaya’s case, thereby disregarding the requirements of the Constitution in line with the government’s familiar approach.”
Yeneroğlu emphasized the broader implications of this decision, noting, “This decision not only fails to address the injustice against Yalçınkaya but also serves as a significant indication that Türkiye will not return to the path of the rule of law with this mindset.” He highlighted the ongoing systematic disregard for ECtHR decisions, stating, “Under Article 90 of the Constitution, ECtHR rulings have been binding for a long time, but they are systematically ignored. As a result, no one takes the claim of judicial independence or the rule of law in Türkiye seriously anymore.”
Yeneroğlu further warned of the broader societal consequences of this defiance, stating, “Every day, our society struggles to survive in an increasingly corrupt and collapsing system, while the government is more concerned with propaganda than addressing the harsh realities faced by the people. Unless we return to the requirements of the rule of law, our societal problems will only worsen, and we will face even greater impoverishment.”
The Yeşil Sol Parti (YSP) also reacted strongly to the verdict, comparing the court’s actions to the authoritarian measures implemented during the September 12, 1980 military coup. The YSP stated, “The decision of the Kayseri court, which ignores the ECtHR’s ruling, is fully in line with the spirit of September 12.” They added, “In the Demirtaş and Kavala cases, the judiciary disregarded the rulings of both the Constitutional Court and the ECtHR, and it has continued this pattern of legal defiance in the Yalçınkaya case.”
The YSP further criticized the overall legal system, noting, “This system that disregards the law, the Constitution, and international court decisions is nothing but a continuation of the coup regime.”
Human rights advocates are now urging the Council of Europe’s Committee of Ministers to take immediate action. In a communication, Yalçınkaya’s legal representatives called on the Committee to address the case at its December 2024 meeting, to adopt an interim resolution, and to demand concrete steps from Türkiye to ensure compliance with ECtHR rulings.
The case is open to appeal at higher Turkish courts, but the decision has broader implications for Türkiye’s compliance with international law and for the thousands of individuals facing similar charges.
For more information
Categories: Recent Judgments, Turkey Human Rights Blog