Ensar Nur-TR724
The European Court of Human Rights (ECHR) “Şaban Yasak” ruling signifies that the court found no violation in the applicant’s complaints under Articles 3 and 7 of the European Convention on Human Rights.
The ECHR ruled on the appeal of Şaban Yasak, who was sentenced to 7 years and 6 months in prison for membership in an armed terrorist organization. The Strasbourg Court rejected the applicant’s complaints of violations of the principle of legality in crime and punishment, as well as ill-treatment due to prison conditions.
The Yasak ruling is not considered a precedent.
In a contrasting ruling in the historic Yalçınkaya case related to post-July 15 trials, the ECHR Grand Chamber had ruled in the opposite direction and issued serious warnings to Turkey, stating that this case affected nearly one hundred thousand cases in the country.
However, in the Yasak case, the ECHR noted that the applicant’s situation differed from Yalçınkaya’s. The ruling does not set a precedent for trials related to the Gülen Movement but only affects Şaban Yasak’s application. It is expected that an appeal will be made to the ECHR Grand Chamber for a review of the decision.
Legal experts pointed out shortcomings in the ruling and warned about being careful when applying to the ECHR. Failure to elaborate on arguments, insufficient expression of the situation, and technical legal errors in the applications can lead to unexpected decisions from the ECHR.
Conviction was based on informant testimonies.
Yasak, who was in Çorum L-Type prison in 2022, applied to the ECHR. In February 2018, the Çorum Heavy Penal Court sentenced him to 7 years and 6 months in prison for his involvement with students between 2011 and 2014.
The charges included that Yasak, as the “Regional Student Supervisor,” was involved with students, held discussions with them, used a code name, and prepared students for security and military positions. The evidence included confessions from individuals benefiting from active repentance and HTS records.
Based on the evidence presented by Turkish courts and the content of the applicant’s complaints, the ECHR stated that Yasak’s activities could have been foreseen to lead to criminal prosecution and that the principle of “no punishment without law” was not violated.
Why did the ECHR not find a violation?
Legal expert Hakan Kaplankaya stated that due to shortcomings in the application and the approach of the Second Chamber, the Strasbourg court did not issue a violation decision.
Kaplankaya emphasized that the case focused heavily on the illegality of the actions described in witness statements obtained under active repentance, and Yasak merely denied these claims.
He noted that simply denying the charges was insufficient in the face of extensive testimony under active repentance. Kaplankaya suggested that to invalidate the evidentiary nature of these testimonies, a complaint under Article 6 of the European Convention on Human Rights, which concerns the right to a fair trial, should have been filed alongside the complaint under Article 7.
Without a violation claim under Article 6, the complaint under Article 7 allowed the ECHR to accept the evidence presented by Turkish courts.
Lawyer Nurullah Albayrak also believes that deficiencies in the application contributed to this decision. Albayrak urged applicants and their lawyers to seek assistance from legal experts specialized in ECHR matters.
Complaints about the violation of the right to a fair trial need to be made.
Human rights lawyer Hakan Kaplankaya does not expect the Yasak ruling to set a precedent for applicants who have properly brought their fair trial complaints before the ECHR.
Kaplankaya noted that during the trials conducted under the state of emergency (OHAL), the right to a fair trial was widely violated, with witnesses benefiting from active repentance not being summoned to court or confronted with the accused, a common deficiency in recent trials.
According to Kaplankaya, the confessions of informants are generally unreliable, and if they are not confronted in court, a violation of the right to a fair trial is highly likely.
“If the applicant had properly brought this and other significant fair trial complaints before the ECHR, the fair trial complaints would surely have been examined, and a violation would have been found,” Kaplankaya said, adding, “Thus, the statements on which the ECHR based its decision not to find a violation of Article 7 would have been relatively invalidated, and it is highly likely that the decision not to find a violation would not have been so easily reached.”
The influence of Yüksel and Bardsen in the Second Chamber
The decision on Article 7 in the Yasak application was unanimous. The ruling was made by the ECHR Second Chamber, which includes Turkey’s controversial judge Saadet Yüksel, who acts as a government agent, and chamber president Arnfinn Bardsen, who opposed the finding of a violation in the Yalçınkaya decision under Article 7.
According to Hakan Kaplankaya, the stance of the chamber president and the Turkish judge on Article 7 seems to have dominated the Second Chamber. Kaplankaya suggests that there could be a legitimate debate on whether this position conflicts with the Grand Chamber.
