Dr. Yaşar Demircioğlu*
The reasons outlined in the decision text of the Yalçınkaya case announced by the ECtHR on September 26, 2023, hold significant importance in terms of potential consequences that perhaps no one could have anticipated. Besides cases involving individuals, the Yalçınkaya decision also contains important clues for legal entities such as associations, foundations, unions, and schools that have been closed down through statutory decrees (KHKs).
Civil society organizations subject to closure due to their alleged affiliation with the Gülen Movement, despite not being associated with any violent or illegal actions, were primarily targeted for closure based on the use of Bylock messaging application by their members or administrators.
Bylock, an application that had been treated as sacred and unquestionable by the regime’s judiciary, was considered the ultimate evidence for membership in a terrorist organization. According to the ECtHR, Turkish judiciary had almost established an “automatic presumption of guilt” based on the use of Bylock. Regardless of the content of the messages, the mere existence of Bylock was deemed sufficient evidence to classify someone as a member of a terrorist organization.
In addition to criminal investigations against individuals, allegations against foundations, unions, and associations lacked any concrete evidence and were based on suspicions, fears, and accusations. When examining decisions by the Court of Cassation, general allegations against institutions associated with the Gülen Movement were as follows:
These institutions were generally used as recruitment tools for sympathizers. Under the guise of foundation, association, and union activities, they engaged in anti-state activities within the constitutional framework, abusing the rights granted by freedom of organization, and used their names and labels to organize events such as press releases, collective petitions, protests, and marches. Subsequently, all these activities were published in the media to create public opinion in favor of the organization. In these institutional structures, money was collected under the names of sacrifice, himmet, and dues, which could provide financing for terrorism and support to the organization.
These civil society organizations aimed to maintain the organizational identity of the organization members, keep their morale and motivation strong. Legal-looking events were organized in order to mask the organization’s illegal activities, and the physical facilities of these institutions were used for this purpose. These civil society organizations aimed to create a positive perception and belief in favor of the organization in public opinion to disseminate the organization’s goals and ideology to broad segments of society.
According to the Turkish State, activities that were used as grounds for membership in a terrorist organization under TCK 314/2 and cited as reasons for the closure of institutions did not necessarily involve acts of violence, attacks, fear, or panic. They were considered preparatory actions, support activities, or preparations for the crime of helping the terrorist organization reach its ultimate goal, even if they did not appear to involve violence or attacks.
The proactive use of criminal law without the existence of any crime or resulting harm, within the framework of preventive criminal law, the instrumentalization of criminal law, the punishment of preparatory actions, and the expansion and broad interpretation of criminal law, contradicted the fundamental principles of legality and predictability among others. In response to these allegations by the Turkish State, the reasoning in the Yalçınkaya decision emerged as a challenge to the practices of prosecution offices that instrumentalized criminal law norms, broadened criminal law far beyond the occurrence of the crime and harm, and acted against the principles of legality and predictability.
The only evidence that the Turkish State could present against abstract accusations of institutions associated with the Gülen Movement, such as associations, foundations, and unions, was the use of Bylock by their members, administrators, or employees. This evidence was not only unpredictable but also contradictory to the principles of legality and individual criminal responsibility. Moreover, in the specific evaluation of Yüksel Yalçınkaya, the Sendika and the association he belonged to were described by the Grand Chamber as “a union and association that were legally active at that time.”
The High Court also emphasized that the government’s argument that the same approach should be adopted in this case as in the ECtHR decision regarding the closure of three far-right associations, which were cited as precedents, was not valid. According to the Grand Chamber, significant differences existed between the facts in the ECtHR decision related to the closure of three far-right associations and the examples in the Yüksel Yalçınkaya case. While one of the closed associations was based on the murder of an individual, which included acts of violence, among other actions, the second and third associations were closed due to the encouragement of hatred and discrimination against Muslims, Jews, and homosexuals through various means, including violence, supported and implemented by their members.
In summary, apart from the debates about whether associations, foundations, and unions that had previously operated in Turkey should be reopened or whether there is a need for this, the reasons put forward by the Grand Chamber in the Yalçınkaya case are important in terms of revealing that the Turkish State is destined to lose in cases related to institutions it claims are affiliated with the Gülen Movement.
*Dr. Yasar Demircioglu is an expert in international law, justice, and human rights, currently based in Berlin.
This article originally appeared on TR724.com in Turkish and has been translated into English by Politurco.
