Introduction
The European Court of Human Rights’ (ECtHR) recent decision in Yasak v. Turkey has raised serious questions about the Court’s handling of cases arising out of Turkey’s complex political and socio-religious landscape. By upholding the Turkish government’s retrospective proscription of the Gulen Movement, the judgment risks undermining critical protections under Articles 6 and 7 of the Convention. The judgment’s lack of contextual understanding, omissions, and oversights leaves it susceptible to potential misuse by the Turkish judiciary. This is alarming given Turkey’s judicial and governmental efforts to rewrite, deflect, and conflate previous ECtHR judgments, particularly Yalçinkaya v. Turkey which condemned Turkey’s approach to counterterrorism and ordered general remedies for systemic violations, potentially affecting about 100,000 individuals.
In this analysis, we explore how Yasak v. Turkey represents a troubling application of the foreseeability criteria and the test of fairness of a trial. As such, the judgment provides the Turkish authorities with a broad latitude to continue prosecuting individuals affiliated with the Gülen Movement without sufficient legal grounds. This critique highlights how the ECtHR’s handling of this case may have emboldened state actors’ exploitation of the counterterrorism laws for political ends.
Turkey’s Socio-Political Landscape: Foreseeability and Legal Clarity in Question
The ECtHR’s ruling in Yasak v. Turkey raises essential questions regarding the nulla poena sine lege (no punishment without law) principle at the core of Article 7. This principle requires laws to be clear, accessible, and foreseeable so that individuals may regulate their conduct accordingly. At the time of Yasak’s involvement with the Gülen Movement, however, the organization was widely regarded within Turkey as a legitimate civic and educational institution, openly supported by government officials and praised for its contributions to the Turkish society. Public officials, including the-then-Prime Minister Recep T. Erdoğan and Justice Minister Bekir Bozdağ, consistently endorsed the Movement, with Erdoğan even approving allocation of land and resources for Movement-affiliated schools and projects.
The Court’s overlooking of this background in Yasak disregards critical socio-political realities. When Yasak was involved with the Movement (from 2007 to 2016), there were no indicators that affiliation with it could carry criminal consequences. After the Movement was subsequently proscribed, high-ranking government officials evaded prosecution based upon their affiliation with the Gulen Movement by arguing that they were unaware of any alleged subversive elements within the Movement. Most notably, Turkey’s Court of Cassation recently acquitted Birol Erdem, a former Justice Ministry undersecretary, stating that he “fell into error” in failing to recognize the “real face” of the Movement. If senior officials, with their extensive knowledge on laws and access to privileged information, were deemed incapable of recognizing potential illegal elements within the Movement, it is questionable how a 20- to 29-year-old student like Yasak could have reasonably foreseen them. The Court here in Yasak adopted a somewhat lackadaisical approach and implicitly invoked its principle that national authorities are better placed than international judges to appreciate the close facts of a case. However, while doing this, the Court willingly turns a blind eye the current state of Turkish judiciary. To give one example, according the World Justice Project’s 2024 report, Turkey ranks 128th out of 142 for impartiality within the criminal system, 138th for having a criminal system free from improper government influence and 135th in terms of limitations on government power.
This context raises profound concerns regarding the ECtHR’s interpretation of foreseeability in Yasak. The judgment implies that Yasak, despite being young and less informed, should have anticipated the Movement’s eventual proscription, even though it was operating within legal and regulated boundaries and was socially promoted at the time of his involvement.
This is not to say of course that the Movement had indeed turned illegal and that foreseeability pertains to this future turn to illegality. What the Court required of Yasak was to have had the capacity to foresee the Turkish authorities’ proscription of the Movement, without convincing evidence and retrospectively. Turkey’s descent down to this level of arbitrariness was not foreseen, even by the leadership of the Gulen Movement, or by senior members of the ruling party, who claimed for some time that the measures taken towards proscription was not targeting the Movement per se.
Cognitive Biases and Misinterpretations: The ECtHR’s Flawed Evidence Assessment
The Yasak judgment raises significant concerns about how cognitive biases and unfamiliarity with Sunni-Muslim-majority societies may have influenced the ECtHR’s decision-making. Turkey remains the only predominantly Sunni-Muslim member state of the Council of Europe, and its unique socio-religious dynamics can be challenging for judges from countries with little experience in handling cases involving politically influential religious movements like the Gülen Movement. Academic research indicates that judicial decision-making is often influenced by cognitive biases, such as confirmation bias and stereotype-driven heuristics, which can affect judges’ analyses, particularly when handling cases involving unfamiliar cultural or religious contexts. In Yasak, the ECtHR judges’ assessments provided evidence in support of this kind of academic findings.
The ECtHR’s decision in Yasak relied heavily on evidence provided by Turkish authorities, much of which has been widely criticized as unreliable or obtained under questionable circumstances. For example, witness testimonies central to Yasak’s conviction were reportedly obtained under the “active repentance” law, which incentivizes detainees to provide information on Gülen affiliates in exchange for reduced sentences or even complete acquittal. This creates strong motivations for witnesses to make potentially false or exaggerated statements and, combined with Turkey’s well documented history of using coercive tactics when extracting statements, this mechanism raises serious questions about the reliability of such testimonies. Moreover, other evidence against Yasak, such as his social security records with a Gülen-affiliated institution and deposits at Bank Asya, are not criminal acts in themselves and were indisputably lawful at the time they occurred.
Yet, the Court appears to have accepted this evidence without sufficiently scrutinizing its context or the conditions under which it was obtained. This acceptance implies a possible confirmation bias in the sense of an inclination to accept information that aligns with pre-existing narratives about the Gülen Movement. The reliance on weak and circumstantial evidence suggests that the Court may have been unduly influenced by state-provided narratives that frame the Movement’s activities as inherently suspicious. Such an approach sidesteps the requirement of concrete evidence and reduces Yasak’s guilt to a matter of guilt by association. This weakens the presumption of innocence, a core pillar of fair trial protections under the ECHR.
Broader Implications: Ignoring Turkey’s Record of Rewriting ECtHR Judgments
As many human rights advocates have observed, the Yasak Judgment risks emboldening Turkey’s judiciary to continue prosecuting individuals with past or alleged ties to the Gülen Movement on insubstantial grounds. Turkey’s refusal to implement the earlier Yalçınkaya judgment, where the ECtHR found systematic Article 7 violations, reflects a judicial approach heavily influenced by political dynamics. Despite documented cases of the Turkish judiciary’s attempts to rewrite, deflect, and conflate ECtHR judgments that challenge Turkey’s counterterrorism approach, the Court failed to question the integrity of Turkey’s post-2016 anti-Gülen policies and gave tacit approval to the Turkish judiciary’s controversial methods.
Instead of enforcing the need for Turkey to realign its practices within ECHR standards, the ECtHR’s decision effectively signals to the Turkish courts that they have considerable leeway to continue prosecuting individuals based on mere association with the Movement. This deferential stance poses significant risks for tens of thousands of Turkish citizens who may now face legal repercussions for legitimate, legal actions they undertook years ago. By implicitly endorsing Turkey’s broad and retrospective use of anti-terrorism laws, the Yasak judgment creates a permissive environment for judicial abuse that extends beyond Turkey, potentially influencing other member states inclined toward authoritarianism.
Furthermore, the Yasak judgment’s failure to address Turkey’s tendency to ignore or reinterpret ECtHR rulings reduces the deterrent effect of the Court’s judgments. Without explicit reinforcement of prior decisions, such as Yalçınkaya, the ECtHR inadvertently signals to the Turkish judiciary that it can selectively adhere to ECHR standards, undermining the rule of law and threatening the rights of individuals caught in Turkey’s expansive counterterrorism measures.
Conclusion: The Need for a More Rigorous and Context-Aware Approach
The Yasak v. Turkey judgment represents a missed opportunity for the ECtHR to uphold the principles of foreseeability, fair trial rights, and the rule of law enshrined in the ECHR. By failing to critically engage with Turkey’s unique socio-political context and by accepting questionable evidence, the Court has set a concerning precedent that may have far-reaching implications for human rights protections in Turkey. This judgment highlights the necessity for the ECtHR to exercise greater scrutiny when handling cases involving Turkey, particularly those involving individuals accused of association with politically sensitive organizations.
In an era where judicial impartiality and adherence to human rights norms are under growing pressure, the ECtHR must reaffirm its commitment to protecting individuals from state overreach. The Court’s apparent indifference to Turkey’s record of deflecting unfavourable judgments and its endorsement of retroactive criminalization create a permissive environment for judicial abuse. Without a more critical stance, the ECtHR risks emboldening Turkey’s judiciary to intensify politically motivated prosecutions, potentially affecting hundreds of thousands of Turkish citizens. The Court’s handling of cases involving Turkey and similar states should reflect an understanding of local contexts and an unwavering dedication to due process. If the ECtHR is to fulfil its role as a guardian of human rights, it must resist undue deference to state narratives and uphold rigorous evidentiary standards, ensuring that the principles of justice and fairness remain paramount across Europe.
Author: Ali YILDIZ, Director of the Arrested Lawyers Initiative, a member of Bars of Brussels and Ankara.
Categories: Turkey Human Rights Blog