Interview with Mr Hakan Kaplankaya on the importance of the ECtHR judgement in YÜKSEL YALÇINKAYA v TÜRKİYE

ECHR courtroom - Copyright AP Photo Euronews.com

By Maria Popova

I had an interview with Mr Hakan Kaplankaya. Together, we discussed the ECtHR decision Yuksel Yalcinkaya vs Turkey.

Hakan Kaplankaya is a legal advisor and former Turkish diplomat. His research and consultancy services focus mainly on human rights advocacy and international commercial arbitration. During his tenure at the Ministry, he worked at the NATO Desk. He is also a board member of InstiduDE, Belgium’s research-driven NGO.

  1. Mr Kaplankaya, can you elaborate for us what the judgement is about and its importance?

The Turkish government launched a crackdown on the Gulen Movement (GM), especially after the graft probes in December 2013, which escalated to an annihilation campaign after the failed coup on July 15, 2016. GM was designated as a terrorist organisation, which paved the way to widespread criminal prosecutions for membership in a terrorist group against members, followers, and sympathisers of the movement. Within criminal proceedings, routine activities were treated as evidence of terrorist organisation membership, such as subscribing to a daily, enrolling children in GM-affiliated schools, depositing money in Bankasya, using the Bylock mobile chat application, joining GM-related associations, and participating in religious talks.

Over 600,000 people were prosecuted, with more than 300,000 detained and over 100,000 convicted on terrorism charges. The ECtHR’s judgment is a long-awaited response to this travesty of justice.

Another notable aspect of these persecutions and the judgment is that this judicial practice has risen to crimes against humanity. As fellows of the Institute for Diplomacy and Economy, we drafted a report on this issue two years ago. In various opinions, the UN Working Group on Arbitrary Detention (WGAD) has concluded that the arbitrary detentions faced by numerous Turkish individuals linked to this group since the coup attempt follow a systematic and widespread pattern, possibly amounting to crimes against humanity. The international community should give due consideration and examination to this dimension.

  1. The Grand Chamber judgment in the case highlighted violations of Article 7 (no punishment without law) and Article 6 § 1 (right to a fair trial) of the ECHR. Could you explain how the Court found that the applicant’s conviction, based on the use of the ByLock application, departed from the requirements of national law and was contrary to the object and purpose of Article 7, which aims to provide safeguards against arbitrary prosecution, conviction, and punishment?

The Court observed that the applicant’s conviction for membership in a terrorist organisation was primarily based on his alleged use of the ByLock messaging application, while other evidence, such as his account at Bank Asya and his membership in a trade union and an association, served as corroborative sources. The mere use of the ByLock application, regardless of the content of the messages or the recipients’ identities, was deemed sufficient in domestic law to establish all the elements of the crime of belonging to an armed terrorist organisation.

Interview with Mr Hakan Kaplankaya on the importance of the ECtHR judgement in YÜKSEL YALÇINKAYA v TÜRKİYE App no 15669/20 (ECtHR, 26 September 2023)

The Court acknowledged that the use of the ByLock application could indicate some connection with the Gülen Group but disagreed with the domestic courts’ conclusion, which was merely downloading and using the application pointed out the complete submission to the organisation and its hierarchy. Instead, the Court found that relying on the mere use of ByLock alone to establish the elements of the offence was an unforeseeable and expansive interpretation of anti-terror legislation. This interpretation essentially created an almost automatic presumption of guilt based solely on ByLock usage, making it extremely difficult for the applicant to prove his innocence.

Without examining the presence of ‘knowledge’ and ‘intent,’ which are requirements in the legal definition of the offence under domestic law, the Court observed that objective liability was effectively attached to the use of ByLock. This interpretation by the domestic courts effectively bypassed the essential, particularly mental, element of the offence and treated it as a strict liability offence, thus deviating from the established requirements in domestic law. Consequently, the Court ruled that there had been a violation of Article 7 of the Convention.

  1. The judgment identifies procedural shortcomings in the criminal proceedings against Mr Yalçınkaya, particularly regarding his access to and ability to effectively challenge the ByLock evidence, breaching his right to a fair trial under Article 6. Can you elaborate on the specific failures in the courts’ handling of the ByLock evidence and how these shortcomings undermined the applicant’s opportunity to challenge the proof effectively, as outlined by the Court?

Regarding Article 6 § 1 of the Convention, the Court examined whether the applicant, who faced non-disclosure of crucial ByLock data, was given adequate procedural safeguards and whether the applicant was afforded a suitable opportunity to prepare his defence.

The Court criticised the silence of domestic courts concerning their rejection of the applicant’s request for Bylock raw data, as well as the applicant’s substantiated concerns about the reliability of the evidence. The refusal of the applicant’s request to independently examine the raw data to verify its content and integrity was also noted. The Court emphasized that proceedings should have allowed the applicant to fully comment on the decrypted material, ensuring a “fair balance” between the parties.

In conclusion, the Court found insufficient safeguards for the applicant to challenge the evidence effectively and on equal footing with the prosecution. The failure of domestic courts to address the applicant’s requests and objections raised doubts that they were impervious to the defence arguments. The Court ruled that the applicant was not genuinely ‘heard,’ concluding that the criminal proceedings fell short of a fair trial, breaching Article 6 § 1 of the Convention.

  1. The Court held that Türkiye must take general measures to address systemic problems, particularly concerning the Turkish judiciary’s approach to using ByLock. As a legal expert, what specific measures do you believe would be necessary to rectify the identified systemic problems and ensure that future cases involving digital evidence, like ByLock, comply with the requirements of the ECHR, particularly in safeguarding individuals against arbitrary consequences and upholding the principles of a fair trial?

The Court highlighted the systemic nature of the issue, with over 8,000 similar cases and the potential for around one hundred thousand more cases from Turkey to reach the European Court. To address this, Turkey needs to implement general measures for resolution. Although the anti-terror legislation has faced criticism for its broad interpretative potential, mainly from scholars, the Venice Commission, and some European Court judgments, I believe the core problem lies in the arbitrary interpretation by the Turkish judiciary rather than the legislation’s wording. Despite Yalçınkaya reflecting the Court’s stance on this interpretation, there is still room for legislative amendment. However, the most immediate solution would be a jurisprudential change, with the Turkish judiciary aligning itself with the Yalçınkaya judgment, refraining from incriminating people for ordinary, non-criminal activities. Unfortunately, four months after the release of this judgment, Turkish courts have not given a clear signal that they have aligned with it.

Reopening cases in Turkey that have already been presented to the European Court could present a viable solution. Although Turkish criminal procedure permits the reopening of a case if the European Court identifies a violation, this right is currently not extended to similar cases. Nevertheless, a recent ruling by the Turkish Constitutional Court lends support to this potential solution. Consequently, a legal amendment would be beneficial to address and clarify this issue explicitly. Unfortunately, I am unaware of any instance where a domestic court has approved reopening a case similar to Yalcinkaya.

Following the Yalcinkaya case, individuals convicted of terrorism charges based on their alleged membership in the GM should be acquitted. The Bylock evidence, riddled with numerous shortcomings, was examined by the Strasbourg Court, which criticised the Turkish court’s flawed examination without explicitly affirming its evidentiary value. However, given the significant deficiencies in the Bylock evidence, it becomes untenable for any impartial court to accept it as credible. Moreover, the Court identified a more substantial issue, emphasising a violation of Article 7. Thus, the result should be an acquittal.

Bas du formulaire

Interview with Mr Hakan Kaplankaya ECtHR YÜKSEL YALÇINKAYA v TÜRKİYE By Maria Popova
  1. Given the historical significance outlined in the Yalçınkaya judgment and its impact on Article 7 violations, can you elaborate on the specific legal principles related to the “legality of crimes and punishments” that make an Article 7 violation so severe and why the ECHR has been cautious in finding such violations for its member states over the years?”

The “No punishment without law” principle is a fundamental legal tenet. In societies governed by the rule of law, the violation of this principle is not encountered. The recent judgment marks the sixtieth violation ruling by the Court in its history. The incrimination of hundreds of thousands of people in contravention of this principle is profoundly shocking. Witnessing such a grave systemic violation is, in my view, a source of shame for all Europeans.

  1. The Yalçınkaya decision highlights a systemic issue with over 8,000 pending cases of a similar nature and suggests the potential for over 100,000 more cases based on ByLock usage. How do you think non-compliance with the Yalçınkaya decision could impact Turkey’s judicial system and its international standing, and what steps should the authorities, particularly the Constitutional Court, take to address this issue promptly?

As stated in the judgment, it is binding on the Turkish judiciary. Therefore, the Turkish Constitutional Court and other superior courts should align with it. Failure to do so may result in the European Court issuing violation judgments for similar cases and potential future applications. The Committee of Ministers of the Council of Europe will monitor the execution of the judgment, involving a political and diplomatic process. Significantly, according to the Turkish Constitution, the decisions of the European Court are binding, and I hope that they will eventually be implemented in Turkey by Turkish authorities.

Educational challenges in Niger

Written by Maria Popova.

Niger, a nation at the crossroads of West Africa, has recently commanded global attention for its intricate political climate. While the headlines often focus on the country’s political struggles, this article aims to delve into a critical issue that silently shapes the lives of its citizens—educational challenges. With a population nearing 27 million and a GDP largely dependent on agriculture, Niger faces a complex confluence of factors contributing to a dire state of education.

The World Bank’s stark revelation that over 10 million Nigeriens live in extreme poverty sets the stage for understanding the multifaceted hurdles obstructing the educational journey for its youth. From a fluctuating political climate and economic fragility to the struggles of child labor, early marriages, and pervasive poverty, the country grapples with a daunting array of obstacles.

Despite commendable governmental efforts, including free primary education and mandatory schooling, the persistently low literacy rates underscore a deeper, systemic crisis. This article navigates through the intricacies of Niger’s educational challenges, shedding light on the interplay of socio-economic dynamics, gender inequality, and regional violence that collectively form a barrier to the realization of quality education for the nation’s youth.

Niger is a country in Western Africa with a population reaching almost 27 million people in 2023, with the largest number of citizens located in its capital Niamey.[i] Niger’s GDP is estimated to 15 billion USD, which is largely due to poor diversification of its economy, with agriculture taking up 40%.[ii] According to the World Bank, more than 10 million people in Niger live in extreme poverty.[iii] Fluctuating political climate, poverty, bad economy, child labour and early marriages are all factors contributing to the educational challenges in the country.[iv] As a result, Niger is a country rating dangerously low with regards to quality of education with a literacy rate of 37.34% in 2021.[v]

Low school attendance

The poor state of the educational system in Niger is not evidence of lack of efforts by the government which has tried to pursue educational development throughout the years. For example, in the 2000s Niger made primary education free for students to encourage the number of children enrolling in educational institutions.[vi] Furthermore, schooling for children is mandatory until age 15, which is the end of the first cycle of secondary education.[vii] However, over 50% of children between the ages of 7 and 16 are not enrolled in schools.[viii] Pre-school enrolment rate marks only 7%, while secondary school enrolment rate is below 60%.[ix] Even for the children enrolled in educational facilities, there is a high chance of dropping out due to lack of retention stemming from poor quality of teaching, poverty, lack of infrastructure.[x]

Poverty

Niger ranks at 189th out of 191 countries in United Nation’s Human Development reports and continues to be one of the poorest countries in the world according to UN’s Multidimensional Poverty Index.[xi] Violence and political instability also pose further difficulties when it comes to income opportunities.

The United Nations Food program estimates roughly 2 million people in Niger are food insecure with that number continuing to rise during lean season.[xii] Hunger poses a significant challenge to educational development. When children are not sure where their next meal will come from, their priority is not set on furthering their education, but rather on their survival. Children cannot be expected to retain focus on school when they are dealing with malnutrition. Furthermore, many parents make the decision to pull their children from school in order for them to work as for most families in rural areas, this is the only way to ensure the family’s survival.[xiii]

Violence

Since 2018 the region of Tillabéri has suffered massive attacks on civilian population as violence has overspilled from neighbouring conflicts in Mali and Burkina Faso.[xiv] The attacks led to civilian deaths as well as displacement of the population in the region.[xv] The uncertainty of the situation and the spread of violence has had negative impact on education in Niger.

According to the Norwegian Refugee Council 900 educational facilities have been closed due to the attacks.[xvi] Closed schools and displacement are not the only educational challenges stemming from the widespread violence. Due to the displacement many children have no access to essential documentation required for them to start school, such as birth certificates or other identification documents.[xvii] The violence also causes severe mental trauma to children, which can then affect their ability to learn and their focus in school.

Gender inequality

While access to education is a problem for most children in Niger, minority groups face disproportionate disadvantages when it comes to their education. Young girls, especially ones living in rural areas and ones with lower socio-economic status often face disproportionate challenges due to gender inequality. Only 4 out of 10 girls reach sixth grade in Niger, before being forced to drop out of school as a result of financial difficulties.

Another prominent issue which consequently leads to educational challenges among girls is child marriage. In Niger, marrying very young is often interpreted as a way to increase one’s economic and financial status and to secure inheritance.[xviii] Due to poverty, many families marry off their girls to wealthy men as a form of survival mechanism.[xix]

While child marriage is a problem for both young girls and boys, it is an issue more prevalent among girls. While only 6 percent of Nigerien boys are married before the age of 18, for girls that percentage is vastly higher at 76%.[xx] 28% percent of girls in Niger are married before the age of 15.[xxi] The issue is often exacerbated by gender norms, which perpetuate that women and girls’ role is to be mothers and wives.[xxii] Therefore, the focus for young girls in Niger is not on education, but rather on creating a family. Child marriages are not only the cause for challenges in education, but are also linked to slow economic growth.[xxiii]

Students in physics class. Niger, 2017. Photo by: GPE/Kelley Lynch via Flickr

According to the World Bank, high fertility, which is defined to be five or more births for a woman, not only poses health risks for both the mother and the children, but is also linked to economic decline. For example, due to rapid population increase, the number of poor people within the state rises and consequently the state cannot deal with the higher demand for investments in education and health services.[xxiv]

Niger, however, has made significant efforts to deal with the problem. For example, they have vowed to abolish child marriages and have created campaigns promoting education for young girls.[xxv] In 2017, the Government passed a decree to keep young girls in schools. The decree allows for pregnant and/or married students to stay in school and for adolescent mothers to return to school after giving birth.[xxvi]

Child labour

Child labour is a prevalent issue in Niger, one that also contributes to educational challenges in the country. Many children are pulled from school and forced to work due to extreme poverty in the country. Child labour is common in villages where children are employed in family farms. They often perform agricultural tasks such as herding of livestock, production of vegetables and grain and fishing. Child labour is also common in the mining industry as well as in public services. According to UNESCO 42% of children between the ages of 5 and 14 work in Niger. However, only 22% combine work and school. It is reported that even children at the age of 6 are forced to work.

All of these factors pose significant educational challenges for young people in Niger. The conflicting political climate and violence spills from surrounding countries pose significant hurdles to children trying to attend schools. Physical and mental trauma from displacement and violent climate have severe negative impacts on focus in school and attendance. Attendance is further hindered by extreme poverty in the region, forcing children to drop out and work to keep their families afloat or ensure their own survival. Child labour continues to be a common practice due to the poverty levels in the country as children from all ages are pulled out of schools and forced to work. From 5 years old, roughly half of the children between ages 5 and 14 work in Niger.

Alongside all of these hurdles, certain more vulnerable groups face additional challenges when it comes to their education. Young girls face disproportionate challenges due to gender inequality. They are often pushed into child marriages as survival mechanism, meant to ensure escape from poverty. The focus of young girls is then directed towards finding a husband and creating a family, instead of receiving quality education or any education at all. It is clear that children in Niger face a lot of challenges in their daily lives which are interconnected and combined in a vicious cycle. This cycle also affects their education and can lead to detrimental impacts on their further development and adult life.

In conclusion, Niger grapples with a complex web of challenges that severely impact the educational landscape for its citizens. Despite commendable efforts by the government, exemplified by initiatives such as free primary education, mandatory schooling until age 15, and campaigns to combat child marriages, the reality on the ground remains harsh. Addressing these interconnected issues is crucial not only for the immediate well-being of the younger generation but also for the long-term socio-economic development of the nation. It demands comprehensive and sustained efforts, both domestically and internationally, to break the vicious cycle and provide the children of Niger with a meaningful chance at a brighter future.

REFERENCES

Cover Image by GPE/Kelley Lynch via Flickr