Introduction
Last week ASSEDEL (L’Association européenne pour la défense des droits et des libertés) published a comprehensive report on the European Court of Human Rights’s Yasak v. Turkey decision, which pointed to the scandalous omissions and misrepresentations which could not be expected from a court the duty of which is to prevent human rights violations. According to the report, the ECtHR not only failed to recognise the socio-political context surrounding the Gülen Movement but more alarmingly set a dangerous precedent for applications which the court will be considering in the future. The ASSEDEL report rightly contends that the ECtHR has therefore granted the Turkish judiciary “carte blanche” to prosecute and convict tens of thousands of Turkish citizens without lawful legal grounds.
We intend to assess Yasak v. Türkiye with lens of ASSEDEL’s report, examining three major areas of concern which it seems to identify: the Court’s disregard for Turkey’s socio-political realities, its assessment of the applicant’s actions and evidence, and the court’s alleged dismissal concerns as to right to a fair trial under Article 6 of the Convention. I will, of course, try and address possible broader implications of the judgment, particularly as to whether it may be used by Turkiye to legitimise its abuse of anti-terror laws.
Disregard for Socio-Political Realities: Foreseeability and Legal Clarity in Question
The principle of nulla poena sine lege (no punishment without law) embedded in Article 7 of the ECHR requires laws to be clear, accessible, and foreseeable. ASSEDEL’s report highlights how the Yasak judgment disregarded the socio-political context surrounding the Gülen Movement prior to 2016, when it was publicly supported by high-ranking government officials. This context directly impacted Yasak’s perception of the Movement as legitimate, which in turn affects the foreseeability of his conviction.
State Support and Public Endorsement of the Gülen Movement
Until 2014, Turkish leaders—including then-Prime Minister Erdoğan and Justice Minister Bekir Bozdağ—spoke favourably about the Gülen Movement. Bozdağ even praised Fethullah Gülen as a “valuable asset,”. Similarly, Erdoğan governments supported Movement-affiliated schools and even appeared at Movement-sponsored events such as the “Turkish Language Olympics”. The Movement was not only publicly endorsed but enjoyed patronage of the most senior government figures which gave way to a public perception that the Movement was a legitimate and even valuable civic institution. On the other hand, from a legal point of view, the Gülen Movement was not a proscribed organisation until the end of 2016.
Mr Yasak, who was in his twenties during his association with the Movement, could not reasonably be expected to foresee that his lawful acts might in the future be taken as evidence for his links to an organisation which would also be proscribed in the future. I agree with the report’s claim that holding a young person criminally responsible for failing to predict the future criminal implications of his legitimate involvement in the Gulen Movement—especially when senior public officials were openly endorsing its activities —is “at best” unlawful. On the other hand, the Turkish Court of Cassation has acquitted Birol Erdem, undersecretary of Justice Ministry, on similar grounds, noting that he could not possibly have “seen the true face” of the Movement. I believe the ASSEDEL report is absolutely right in criticising the ECtHR’s Yasak judgment for not adopting a similar reasoning with regards to Mr Yasak, whose age and the extent of involvement in the Gulen Movement made it even more unlikely for him to foresee that his involvement was in fact potentially criminal.
Misinterpretation of Intent (Mens Rea)
In Yasak, the Court inferred Yasak’s criminal intent from his role as a “student supervisor” within the Movement, including organising student discussions and preparing students for civil service exams. ASSEDEL argues that these activities were not only lawful but also applauded by the wider public and they aligned with the Movement’s education-oriented mission which was supported by the government. The Court’s assumption that Yasak should have foreseen that his association with the Movement would later be considered as criminal intent disregards not only the socio-political context in which the said acts were committed by Mr Yasak but also ignores Turkey’s subsequent, retrospective treatment of the Movement.
By holding Yasak criminally liable for lawful actions in an organisation with public support, the Yasak judgment contrasts sharply with the ECtHR’s stance in Yalçınkaya, where it found that penalising individuals for mere association with the Gülen Movement lacked legal foreseeability. This inconsistent application of foreseeability calls into question the Court’s commitment to maintaining a predictable and fair legal standard.
The Court’s Flawed Assessment of Yasak’s Actions
The report also draws attention to the lack of quality of the evidence which the domestic court used to convict Yasak. It relied heavily on unverified witness statements and circumstantial evidence. ECtHR seems to have overlooked the reliability of witness statements and failed to recognise that certain acts cited as incriminating evidence were absolutely lawful. This in my opinion too rendered the Court’s decision flawed.
Unreliable Witness Testimonies and Coercive Tactics
The evidence against Mr Yasak included statements of former colleagues who made them in accordance with Turkey’s “active repentance” law, which incentivises detainees to provide information on Gülen affiliates in exchange for reduced sentences. The report notes that this inevitably gives way to strong motivation on the part of witnesses who face lengthy prison sentences unless they did so to make incriminating statements with little or no regard to their credibility. Additionally, reports of coercive tactics, including torture and psychological pressure, used by Turkish authorities to extract statements further cast doubt on the reliability of such witness statements.
The Yasak judgment’s failure to critically assess the credibility of these statements, especially considering Turkey’s documented history of coercion, represents a concerning departure from fair trial standards. The ASSEDEL report suggests that testimonies obtained in such circumstances should not have been used to substantiate a criminal conviction, as they undermine the presumption of innocence and contravene the standards required under Article 6. I totally agree.
Misinterpretation of Lawful Actions as Criminal Evidence
Other evidence against Mr Yasak—such as social security contributions paid by a Movement-affiliated company, his deposits in Bank Asya, and the alleged use of an encrypted messaging app—were all lawful acts at the time. ASSEDEL’s report argues that none of these actions, individually or collectively, indicate criminal intent. The ECtHR in a previous decision about a similar case in Yalçınkaya found that merely using an encrypted app or banking with a Movement-affiliated institution would not be sufficient evidence to commit a person of membership to a terrorist organisation. Yet, in Yasak v. Turkiye, the Court failed to uphold this precedent, relying instead on circumstantial evidence that should not have been construed as criminal.
By upholding a conviction based on such inconclusive evidence, the Yasak judgment disregards legal protections and normalises guilt by association. This approach opens the door for future cases where lawful behaviour could be construed as criminal at the expense of the rule of law.
Fair Trial Rights Ignored
The ECtHR’s handling of Mr Yasak’s Article 6 claims (right to a fair trial), specifically its failure to address procedural irregularities that affected his ability to mount a full defense is also worthy of strong criticism. Despite clear violations, the Court inexplicably dismissed them without due consideration and doing so has set a precedent which has rightly caused concern.
Remote Participation and Limited Defense
Mr Yasak argued that his participation in his final hearing only via videolink impeded his defense, as it prevented him from fully engaging with the court . He also argued that it limited his ability to challenge evidence effectively. I agree with the report that the inability to attend the hearing in person could have caused an inequality in the judicial process, to the extent that it violated Mr Yasak’s right to a fair trial. Article 6 of the ECHR guarantees the right of an accused to defend themselves effectively, including the right to be physically present in court, which was disregarded in this case.
Inability to Cross-Examine Witnesses
Mr Yasak not being given the right to effectively challenge witness testimonies was also detrimental to his defense. Many testimonies were taken in his absence, denying him the opportunity to cross-examine witnesses or present counter evidence. The report argues that it violated Yasak’s right to a fair trial as it meant the most fundamental legal criteria for lawful evidence assessment was not met. I believe that the Court’s dismissal of these procedural issues is a troubling failure on its part in ensuring an effective defense, which undermines the integrity of the judgment and weakens the ECtHR’s role in protecting human rights.
Broader Implications: A Blank Check for Judicial Abuse in Turkey
The Yasak v Turkiye judgment, as ASSEDEL suggests, has far-reaching implications that will no doubt extend beyond Mr Yasak’s person. By legitimising Turkey’s broad interpretation of anti-terrorism laws, the ECtHR risks giving the Turkish judiciary a free hand to continue its systematic persecution of individuals with perceived links to the Gülen Movement.
Undermining the Yalçınkaya Judgment and Enabling Abuses
The Yalçınkaya judgment previously identified systemic violations in Turkey’s handling of cases concerning alleged members of the Gulen Movement, finding that the mere association with the Movement did not justify criminal convictions under Article 7. Turkish authorities, however, openly refused to implement the said decision, and the Yasak v Turkiye judgment risks helping Turkiye to persist in its stance by effectively endorsing Turkiye’s narrative. ASSEDEL warns that this judgment may embolden the Turkish judiciary to interpret the ruling as a broad mandate to continue prosecuting tens of thousands of individuals on the basis of association alone, undermining previous ECtHR rulings and encouraging further judicial abuses.
Weakening Protections Under Article 7
By failing to reinforce the principles of foreseeability and clarity in law, the Yasak judgment risks weakening Article 7 protections across the Council of Europe. This approach could set a concerning precedent where politicisation of prosecutions under anti-terrorism laws go unchallenged, emboldening authoritarian governments to expand their persecution of its opponents. If allowed to stand, the Yasak judgment could enable Turkey—and potentially other member states—to further circumvent human rights protections under the guise of countering terrorism.
Conclusion
The Yasak v. Turkey judgment, as ASSEDEL’s report reveals, represents a troubling departure from the ECtHR’s previous stance on foreseeability,right to a fair trial, and the rule of law. By disregarding Turkey’s socio-political context, validating weak evidence, and dismissing procedural irregularities, the Court has not only failed Mr Yasak individually but has also set a worrying precedent with potential consequences for tens of thousands of Turkish citizens.
The ECtHR’s deference to Turkey’s interpretation of anti-terrorism laws risks enabling judicial abuse, undermining its role as a guardian of human rights. A more balanced and consistent approach would require the Court to scrutinise state narratives critically, uphold rigorous evidentiary standards, and ensure that fundamental rights are not sacrificed in the name of counterterrorism. In failing to do so, the Yasak judgment represents a step backward in the protection of human rights across the Council of Europe.
Categories: Recent Judgments, Turkey Human Rights Blog