WHAT IS THE MEANING OF “SYSTEMATIC VIOLATION OF RIGHTS” MENTIONED IN THE ECHR YALÇINKAYA DECISION?

On 26 September 2023, The Grand Chamber of the European Court of Human Rights delivered a groundbreaking decision on pervasive human rights violations in Turkey. The decision has been so significant with its findings and its possible implications in the adjudications of hundreds of thousands of people who have been charged with or sentenced to terrorism accusations. Under the chapter of application of articles 41 and 46, The Court has stressed that the human rights violations mentioned in the decision have been systemic, thereby they require a special regime of execution. Upon this prescription, the comprehension of the systemic violation is essential for the well maintenance of human rights campaign. This identification must be prioritized in the submissions and its general and comprehensive character need to be put forward by lawyers and victims themselves. The legal remedies should be chosen with due diligence by defence lawyers in order to convince the national courts to fully apply the decision to the all cases which include similar accusations.

Normally, the respondent state is free to decide on measures under the supervision of the Committee of Ministers. The measures should be done in good faith and be compatible with the conclusions and the spirit of the decision.( §404). Besides these general principles, in case of the existence of systemic violations, “The Court has found it useful to indicate to a respondent state the type of measures that might be taken to put an end to the situation.( §405) The Court has reiterated that the Committee of Ministers has the sole competence in the execution of judgments, however, it also steps in the process to end a systemic violation whereby it considers the spirit and the implementation of the convention are under a credible threat.

The ECtHR clearly intervened into the execution process by stating the presence of the systemic violations in Yalcinkaya decision. In the following paragraph, the Court exemplifies its standing by mentioning the reopening of trials. Although ,with its own remarks, it is not in the position to order Turkey to reopen trials, it points out that the retrials would be the best option in redressing the situation. (§406) When the decision read together in light with the principles of good faith and spirit of the convention, one can understand that the findings in Yalcinkaya have not solely been for the applicant but for thousands of people who face the same accusations. The definition of systemic violations can be inferred from these passages.  Those refer to human rights violations that are seen pervasively thereby the redress must be directed to address the root cause that results in human rights violations. As another indicator to the presence of a systemic violation, The Court has stated that it has found a violation of article 7, no punishment without a law. The Court has recommended the retrial as a means of redress if it has found a violation regarding article 7.

The ECtHR reinforces its standing on paragraphs § 413 and 414. “The Court observes that in the present case, the violations under Articles 7 and 6 of the Convention resulted notably from the domestic courts’ characterisation of the use of ByLock.” “ The Court therefore considers that the situation that led to a finding of violations of Articles 7 and 6 of the Convention in the present case was not prompted by an isolated incident or attributable to the particular turn of events, but may be regarded as having stemmed from a systemic problem. This problem has affected – and remains capable of affecting – a great number of persons.” A distinctive feature of the systemic violation was mentioned here as something that affects not only the applicant but several people in the jurisdiction of the respondent state. The Court is aware of the fact that there are 8000 waiting applications in the Court’s burden of work that are based on the similar complaints under the articles 6 and 7. Thousands of others are also on their way to the Court still pending before domestic authorities either Constitutional Court or Court of Cassation.

As mentioned above, the supervision of the Court’s judgements is entrusted to the Committee of Ministers. However, The Court does not exclude itself from supervising its judgments especially under special circumstances. The Court has unambiguously warned Turkey to redress the systemic human rights violations, otherwise it could have to “reiterate its findings in a series of comparable cases”. (§ 417) “ The Court is therefore of the opinion that in order to avoid it having to establish similar violations in numerous cases in the future, the defects

identified in the present judgment need, to the extent relevant and possible, to be addressed by the Turkish authorities on a larger scale – that is, beyond the specific case of the present applicant.” (§ 418) The increasing role of the Court in the execution phase has been called by some authors as the “judicialization the execution process.”[1] The Court itself explained the systemic human rights violations in Yalcinkaya decision. Due to the pervasiveness and seriousness of the violation, The court has assumed an extra responsibility in ensuring the “full and prompt application of the convention.” Thus, systemic human rights violation can be understood through the means of the execution of the decision. The Court maintains its supervisory function over the implementation of the Yalcinkaya decision and it has fulfilled its subsidiary function by asserting the violations and indicating the measures that must be taken to rectify the ongoing human rights violations. It has left the parole to the national courts in order to perform their primary role in addressing human rights violations.

The national courts are accordingly to comply with the findings of Yalcinkaya decision and reverse their unjust and unsubstantiated previous judgments. The victims should also play their role and push the national courts with solid, well written and well justified petitions including all relevant and compulsory legal bases to be acquitted from non-sense terrorism charges. Human rights campaign is a process therefore it must be managed with due diligence, patience and intelligence. This decision loads everyone from victims to national courts with tasks that are all essential for the full implementation of the decision.

To sum, the Yalcinkaya decision has addressed systemic human rights violations in Turkey and has pointed out the way how these systemic abuses would be addressed. Its findings need to be followed by national authorities, however, in the current climate of the country, the national courts intentions, if there are any, must be constrained with well drafted, international human rights law compliant petitions. If the process of the implementation of the decision is maintained in a way that is compliant to the findings of The Court, it would open the way of ending persecution towards innocent people, at least for some of them.

[1] Keller, H., & Marti, C. (2015). Reconceptualizing Implementation: The Judicialization of the Execution of the European Court of Human Rights’ Judgments. European Journal of International Law, 26(4), 829-850.