Monthly Archives: November 2016

ECtHR Mercan v. Turkey (app. no. 56511/16): failure to exhaust domestic remedies

ECtHR, DEUXIÈME SECTION DÉCISION Requête no 56511/16 Zeynep MERCAN contre la Turquie,
An application concerning the lawfulness of a judge’s pre-trial detention following the coup d’état of 15 July 2016 has been rejected for failure to exhaust domestic remedies
In its decision in the case of Mercan v. Turkey (application no. 56511/16) the European Court of Human Rights has unanimously declared the application inadmissible. The decision is final.
The case concerned the pre-trial detention of a judge who was dismissed from office following the attempted coup d’état of 15 July 2016. The Court held, in particular, that Ms Mercan was required to lodge an individual application with the Constitutional Court with regard to her complaint concerning the lawfulness and duration of her pre-trial detention, which she had not done in the present case. It therefore rejected this complaint for failure to exhaust domestic remedies. The Court also rejected Ms Mercan’s complaint regarding the conditions of detention, as the applicant had not brought this complaint before the domestic authorities. Lastly, the Court held that the complaint concerning the right to a fair trial was premature at this stage.
Some remarks from Turkey, especially in view of a recent decision of the Constitutional Court of Turkey:
First of all the situation underlying the case Mercan is different from the situation now: the current status of the Turkish Constitutional Court has changed (overloading and the strange decision regarding the two members based not on facts but on the personal opinion of the deciding other members). So there is no remedy to the CC which helps nowadays.
Second there should be considered the following:
The constitutional court of Turkey dismissed the cases lodged against emergency decrees. The main opposition party lodged an application before the Constitutional Court to get the emergency decrees abolished but the court refused to handle the cases on the basis of the idea that the court doesn't have any authority to review emergency decrees. 
According to the current approach of the court the government is able to change the whole system of the country. For instance the government can change the regime of Republic or secularism or the capital which are unalterable provisions of the constitution.
So any provision you see in emergency laws are valid, which means you cannot challenge against their legality.
There should be pointed out two things:
1. The emergency decree extended pre-trial detention up to 30 days. As you know the main opposition party lodged an application before the court to abolish emergency decree in question. However the court refused to hear the case on the basis of the fact that the court does not have authority to review it. So the basis of 30-day pre-detention is still valid. Basically you cannot challenge the regulation of 30 day pre detention before the court.
2. Several applications have been brought to the court in regard with long pre detention of some individuals up to now. However, as far as we know, the court has not decided on the cases yet.

The case of Yarsav (s.

AKP targets judicial independence in latest post-coup takedown

by Sibel Hürtaş*

The Association of Judges and Prosecutors (YARSAV), the first nongovernmental organization of judiciary members in Turkey, was dissolved and its chairman landed behind bars after the July 15 coup attempt. Following the closure order, part of the first emergency-rule decree issued soon after the putsch, the Justice Ministry sent letters of the international bodies to which YARSAV was a member, asking them to admit as its replacement a group with ties to the government. The move is yet another example of Ankara’s tactic of disabling critical institutions and replacing them with pro-government ones.

YARSAV’s case is especially ironic in light of how the association was founded and functioned. It was created in 2006, at a time when followers of Fethullah Gulen, the accused mastermind of the putsch, were increasingly taking hold of senior positions in the judiciary, taking advantage of the then-close alliance between Gulen and the ruling Justice and Development Party (AKP). The 500 founding judges and prosecutors sought to get organized precisely against this trend of partisan staffing. YARSAV filed numerous lawsuits against appointments by the Justice Ministry, secured the cancelation of several regulations and guidelines on the grounds that they facilitated partisan staffing, and ensured that job interviews were recorded on camera. It was among the first vocal critics of mass probes and trials targeting mainly soldiers but also intellectuals and politicians over an alleged plot to unseat the government that the AKP would later admit was a setup by Gulenist police and judicial members to defang the military.

YARSAV was also among the first to speak up internationally about the threats to judicial independence in Turkey, and was soon admitted to the International Association of Judges and the European Magistrates for Democracy and Liberty (MEDEL). That was when its troubles started. YARSAV faced investigations and lawsuits seeking its closure, while founding Chairman Omer Faruk Eminagaoglu was removed from his post at the Court of Appeals and demoted to a provincial office amid judicial and disciplinary probes. Other founders came under similar pressures.

In short, YARSAV paid dearly for standing up against the Gulenist entrenchment in the judiciary, but ended up being closed for links with what Ankara now calls the Fethullah Gulen Terror Organization (FETO). In remarks to Al-Monitor, Eminagaoglu conceded that Gulenist jurists might have “infiltrated” YARSAV, apparently after Gulen and the AKP fell out in 2013, but stressed that the wholesale closure of the association spoke of other motives.

“A fourth of the judges and prosecutors expelled after the coup are said to be YARSAV members. Like all other institutions, YARSAV might have been infiltrated too,” he said, pointing out that many Gulenists used to conceal their affiliation. “Yet, at other public and private institutions, the measures have targeted the infiltrators [individually], and the same had to be applied to YARSAV. Otherwise, one is supposed to shut down the Justice Ministry as well. … The closure of YARSAV is a move that goes beyond the purpose of the struggle against FETO,” he added.

The closure was followed by the arrest of Murat Arslan, YARSAV’s chairman, in late October. The reasons justifying the arrest include a charge that he had downloaded the ByLock messaging application, which Gulenists allegedly used to communicate. In his testimony to prosecutors, obtained by Al-Monitor, Arslan denied ever using the application. In another mind-boggling detail, no backup was made of the original software and data found on Arslan’s mobile phone, as the procedure usually goes in such cases. Asked whether he was aware that Gulenists were involved in illegal activities, Arslan told the prosecutor, “I’ve been aware that this is an illegal entity since the day YARSAV was established. I’ve been involved in active efforts against them since the Ergenekon case.”

Then there is the testimony of a secret witness who alleges that Arslan was the judiciary’s “imam,” or the top Gulenist operative in this realm. Lawyer Selcuk Kozagacli, the head of the Contemporary Jurists Association who was present at Arslan’s interrogation, told the press that the claims of the secret witness contained no specifics of dates and places. “This is called calumniation,” he said. “It can never serve as a basis for any criminal proceeding or an arrest.”

Arslan, who was in Great Britain on the day of the putsch and returned home two days later, was imprisoned pending trial after the court found him a flight risk. In the meantime, he lost his position as rapporteur at the Constitutional Court, and his family was ordered to leave the public lodgings where they resided.

YARSAV was the only Turkish group that the International Association of Judges and MEDEL had admitted. Its closure also meant an end to its active international efforts to explain how Ankara sought to control the judiciary and draw attention to the dangers of partisan staffing.

Following YARSAV’s closure, the Justice Ministry wrote to the International Association of Judges, informing them of the move and requesting the admission of the pro-government Platform for Unity in the Judiciary as a replacement, Eminagaoglu told Al-Monitor. “The International Association of Judges rejected the request, saying it admits only independent organizations,” he said. “The move was an attempt to ensure that groups praising the government and not those criticizing it are represented in international organizations. It’s what the government always does — dissolving opponent bodies and filling their places with pro-government ones. This is true not only for the judiciary, but also for the media and public service.”

Sibel Hurtas is an award-winning Turkish journalist who focuses on human rights and judicial and legal affairs. Her career includes 15 years as a reporter for the national newspapers Evrensel, Taraf, Sabah and HaberTurk and the ANKA news agency. She won the Metin Goktepe Journalism Award and the Musa Anter Journalism Award in 2004, and the Turkish Journalists Association’s Merit Award in 2005. In 2013, she published a book on the murders of Christians in Turkey. Her articles on minorities and unresolved killings appear on the Faili Belli human rights blog.

*Read more about: Sibel Hürtaş

Qu’est-ce que c’est “la démocratie” ?

Quelques reflexions interessante de Nicolas Bueno sur la notion de la démocratie dans sa thèse “Le droit de prendre son destin en main – le droit international e la démocratie et l’avenir des droits politiques, Diss. Lausanne 2014, Stämpfli Editions 2015:


“[..] D’une part, la démocratie ne se résume pas à la tenure d’élections. D’autre part, la démocratie est une question de degré et non de genre. La démocratie dépend en effet du degré auquel les individus peuvent contrôler les décisions publiques et du degré auquel les individus sont égaux lorsqu’ils exercent ce contrôle.


Ceci étant dit, le lien entre la démocratie et les droits de l’homme est évident. Chaque droit de l’homme permet à sa manière de renforcer le contrôle populaire et l’égalité politique. Les droits civils et politiques d’élire, de se porter candidat, de s’associer ou de s’exprimer, par exemple, garantissent les moyens de contrôler les décisions publiques. L’interdiction de la discrimination garantit l’égalité dans l’exercice de se contrôle.Les droits sociaux ou économiques à l’éducation, à une nourriture suffisante ou au meilleur état de santé susceptible d’être atteint, pour leur art, sont aussi les conditions sine qua non de la démocratie. Ils assurent un accès égalitaire aux mécanismes de contrôle populaire.


p. 391 s.


Information about prosecutor Seyfettin Yigit, found dead in prison 16.09.2016


Prosecutor Seyfettin Yigit who died in prison after suspicious suicide(!) blacklisted as opponent by pro-government Judges Association (YBP). It was told that he was found hanging in the prison bathroom on Sept. 16.

Seyfettin Yiğit was among those prosecutors who oversaw an investigation into allegations of irregularities within the Housing Development Administration of Turkey (TOKI) in late 2013.




Please find attached the the page of the YBP List


Could it be a crime to use ByLock ?


Turkish judicial and administrative authorities have been trying to establish a perception through ByLock which is an encrypted messaging application for smart phone, and can be downloaded in google play and used to be downloaded in apple store as well. Although Bylock, which is a legal app, can be downloaded via apple store and google play, they reflects it as an illegal application in order to strengthen their thesis and their claims. From their perspective using or downloading ByLock is considered a crime which means a member of armed terrorist organization behind the attempted coup and so it was accepted and applied as the most important evidence of membership of terrorist organization.

The statement of Mr. Mehmet Yılmaz who is Vice President of HSYK was published in some newspapers.1 He mentioned in his statement about the smart phone application which is called ByLock, have been used by the Gülenist for encrypted conversation. He briefly said that “We call on them to benefit from the Repentance Law. The number of people who want to benefit from the law has increased, particularly after the emergence of lists of people using ByLock. I believe it will increase further from now on,”

Labor and Social Security Minister Mehmet Müezzinoğlu also told reporters in Bursa on Tuesday that the Turkish Intelligence Agency has determined the identity of nearly half the 180,000 users of ByLock,. It is claimed by the Justice and Development Party (AKP) that plotters of the July 15 coup attempt used it for communicating.2

According to the prosecutors, members of HSYK and the government officials, smart phone application ByLock is the main communication tool among members of the Gülen Movement. As I said before from their perspective using or downloading ByLock is considered a crime which means a member of armed terrorist organization behind the attempted coup and so it was accepted and applied as the most important evidence of membership of terrorist organization. Therefore so many people have been arrested just because they used ByLock application.

However the truth is so different. ​​ 

1) As far as I can see from the statements comes from the judicial and administrative authorities and some news from variety of newspapers such as Guardian3 ​​ The Turkish Intelligence Agency has been working on it for a long time. ​​ So the list of names that allegedly used or downloaded ByLock made by intelligence services. But Intelligence reports cannot be used as an evidence in judicial proceedings. Because of the nature of intelligence; this information is not in conformity with the guiding principles of the criminal proceedings, since "unilateral, indirect, confidential, precise information of certainty and certain processed (impure) information". Therefore, it cannot be used as an evidence in the application of the protection measure in the criminal proceedings, in the opening of the public case and in the sentence of conviction.4

2) ByLock is a legal smart phone application. The ByLock messaging app appears both Apple and the Google Play App stores, in 20014, then later on it removed from these platforms by the developers in the same year. New versions subsequently, which appeared on less secure app downloading websites, can be reached by Android, Windows Phone and Blackberry users. 5 “ByLock is an encrypted messaging application that is not widely used today,” Tim Strazzere, director of mobile research at US-Israeli security firm SentinelOne told Reuters. “Anyone who wanted to reverse-engineer the app could do so in minutes.”6 So everyone not only in Turkey but also in the world can download this application to their smartphone from the Apple and Google Play. So using or downloading legal application is never considered a crime.

3) In Turkey, there has been public fear and belief for a long time that intelligence services or somebody can illegally listen people’s conversation and records their messaging on the phone. So illegal wiretapping is so common in Turkey. We have witnessed so many bad examples in Turkey. That is why encrypted messaging application ​​ such as WhatsApp, Telegram, Cover Me, Viber, Eagle, Facebook Messenger or I Message are so common in Turkey. People in Turkey can use or download ByLock just because of the need of secure line, not because of being a member of terrorist organization. Even if it is considered as an evidence to show main communication tool for a terrorist organization, it should be also proved that this service has been used for reaching the organization illegal aim. There is always a possibility for this kind of application open to public that some people might use or download it just because they are curious and want to try how it works. This experience cannot be considered as a crime which causes them to be dismissed from their work and to be detained or arrested.

4) An anonymous blogpost in November 2014 purporting to be from the developer claims ByLock had attracted around 1 million users, making it difficult to maintain, in part because the app had come under attack from unnamed “Middle East Countries”.7 The number of ByLock users ​​ are according to the ​​ Sabah Newspaper's 150 thousand, Science and Technology Minister Faruk Ozlu's 215 thousand, Hurriyet Newspaper writer Murat Yetkin 165 thousand, Google around 500 thousand.8

If downloading ByLock is considered a crime, all these people must be a member of FETÖ and also they have to be prosecuted and detained or arrested.

5) A felony court in Hatay has recently ruled that use of the ByLock application alone cannot be considered a crime. Because it is not known when the suspects downloaded the application, with whom they communicated using it and what the content of their conversations was, saying that they cannot be accused simply for downloading ByLock.9 Without knowing, showing the content of their conversation through ByLock, people cannot be accused of being terrorist organization just because they used or downloaded ByLock.

6) After the Attempted Coup, Turkish Authorities said that the smartphone chat application may have been created by FETÖ members, so they could communicate secretly about the coup plot.10 And also it is claimed by the Justice and Development Party (AKP) that plotters of the July 15 coup attempt used it for communicating.11 A senior Turkish official told Reuters "The ByLock data made it possible for us to map their network -- at least a large part of it”, "What I can say is that a large number of people identified via ByLock were directly involved in the coup attempt." The Turkish official also said ByLock may have been created by the Gulenists themselves so they could communicate.12 However, in the same news it was said that experts consulted by Reuters were not able to verify ​​ that ByLock may have been created by the Gulenists themselves.13

The other thing is that HSYK said in its public statement on the day of first of November 2016 (01/11/2016) 14 “…according to the information obtained from the authorities and the public open source, the application of ByLock has not been used since February 2016 by the member of organization (referring FETÖ).” So if ByLock has not been used since February 2016, how could this application be used by the members of the organization during the attempted coup period which was occurred 15 July 2016.

7) According to the news of The Wall Street Journals15 ​​ senior Turkish intelligence officials said that “ in the months before Turkey’s failed coup, the country’s spy agency penetrated online chat rooms and decoded millions of secret messages but found no mention of the plot, ​​ None of the ByLock messages referred to a coup plot.” So if this is true, how can using and downloading ByLock application be used as the most important evidence of membership of terrorist organization.

To summ up, Turkish judicial and administrative authorities are trying to establish a perception through ByLock. They are especially trying to spread and express it in order to strengthen their thesis and their claims. Unfortunately downloading and using ByLock application has become main reason or legal ground for thousands of people are being arrested and victimized illegally.






Author: anonymous for security reasons (identity known to the blog editor)





  • YBP refers to ‘The Platform of Judicial Unity’ which is a pro-government NGO and it has been an association since 2015.

  • YBP candidates competed mostly with independents

  • Below is what happened to those who did not support the YBP list after the coup attempt 


    • Almost all independent candidates were punished with being arrested

    • YARSAV (The Association of Judges and Prosecutors) was closed down in the first decree after the declaration of state of emergency

    • The President of YARSAV, Murat Arslan, was arrested on the 26th of October, 2016.



1-METİN YANDIRMAZ 5836   Member of YBP, on duty

2-MEHMET YILMAZ   5758   Member of YBP, on duty

3-MEHMET DURGUN 5695   Member of YBP, on duty

4-ÖMÜR TOPAÇ 5665 Member of YBP, on duty

5-RAMAZAN KAYA 5657 Member of YBP, on duty

6-İSA ÇELİK 5429 Member of YBP, on duty

7-TURGAY ATEŞ 5400 Member of YBP, on duty

8-İLKER ÇETİN 5312   Independent, Arrested

9-SELAHADDİN MENTEŞ 5302 Member of YBP, on duty

10-ZEYNEP ŞAHİN 5291 Member of YBP, on duty

11-ORHAN GÖDEL 5202 Independent, Arrested

12-BİLGİN BAŞARAN 5100 Member of YBP, on duty

13-LEVENT ÜNSAL 5143 Independent, Arrested

14-İDRİS BERBER 5003 Independent, Arrested

15-YAŞAR AKYILDIZ 4943 Independent, Arrested

16-YEŞİM SAYILDI 5009 Independent, Arrested

17-AYŞE NEŞE GÜL 4816 Independent, arrested (she and also her husband who was also a judge were both arrested, she has been held in solitary confinement)

18-MEHMET KAYA 4864 Independent, Arrested

19-TEOMAN GÖKÇE 4797 Independent, Arrested (Member of the 2010 HSYK)

20-AHMET ÇİÇEKLİ 4499 Member of YBP, on duty

21-NESİBE ÖZER 4545 Independent, Arrested. (Member of the 2010 HSYK) Started hunger strike due to ill treatment in jail, on the 28th of September 2016. Bakirköy/İstanbul Women Prison (in solitary confinement)

22-HASAN ÜNAL 4495 Independent, Arrested




26-AYDIN BAŞAR 1338 Independent (Founder of ‘’, a search warrant was issued for the server company of this website on the 3rd of May, 2016)

27-HAYRETTİN TÜRE 1296 Independent








35-İBRAHİM OKUR 821 Independent, Arrested (Member of the 2010 HSYK)



1-HALİL KOÇ 736   Member of YBP, on duty

2-AHMET BERBEROĞLU 735 Independent, Arrested (Member of the 2014 HSYK)

3-MAHMUT ŞEN 713 Independent, Arrested (Member of the 2014 HSYK)

4-CAFER ERGEN 706   Member of YBP, on duty

5-MEHMET GÖKPINAR  695   Member of YBP, on duty

6-SADETTİN KOCABAŞ 692 Independent, Arrested

7-HASAN ODABAŞI 673 Member of YBP, on duty

8- GÖNÜL SAYIN 655 Member of YBP, on duty

9-ALİ BİLEN 651 Independent, Arrested

10-EGEMEN DEVRİM DURMUŞ 626 Independent, Arrested





Sources: (Please copy-paste the link to your browser)








P.S.: Why were Yarsav candidates no real competition?

YARSAV, as an institution means a lot for Turkish judiciary. YARSAV is the only independent Judicial association, the voice of the judiciary at both national and international platforms.

YARSAV has a strong institutional culture and experience and its reputation arises from its activities. Judges and the public know YARSAV very well but they dont know much about its administration and members by names. YARSAV’s public remarks have been signed like this ” the Board of Directors” without names.

In 2010 and in 2014 YARSAV’s candidates did not get remarkable number of votes. In terms of HSYK elections Yarsav does not pose serious threat to the government. On the other hand, the activities of YARSAV makes the government uncomfortable. By way of shutting down YARSAV, the government achives its aim.

In the 2014 election, due to the fearful environment and stick and carrot policy, voters acted pragmaticially taking their concerns into  account regarding the future of their individual careers instead of problems of the whole judiciary. The YBP promised a salary increase and pardon over disciplinary sanctions. And everybody knew that YBP could do so since it was established and supported by the government. On the other hand, YARSAV focused on ethics, democratic principles and the judicial independence. But it did not mean a lot.

Independent candidates had strong and well known personalities and judges believed that independent candidates may change many things in the judiciary.

For government YARSAV’s members are not threat but YARSAV itself is a threat. YARSAV built its reputation through its principles and joint efforts via international associations

Re: What happened in early November, and what is next?

Unfortunately I have the same terrible concern. It can be expected such heineous attacks to inmates and also assassinations to prominent figures.

Please don’t consider these expectations as exaggeration.

Please once more attempt to protect people!!!

I believe the best way is to send international observers.

If this is not possible please persuade relevant institutions to make public remarks on the situations in prisons.

Please note that up to now what we have expected mostly occurred. This is step by step plan to silence permanently all opposition.

This is dead end. No way they will back to rule of law and democracy but at least they can be stopped before further step.

Please, dear colleagues, take our remarks into consideration before too late.

CPT should not wait to express some concerns over Turkish prisons. And there must be ongoing, endless efforts to pay visit the prisons.

Thank you so much in advance.

What happened in early November, and what is NEXT?

NOVEMBER 5, 2016

Since the failed coup attempt (July 15, 2016), 170 newspapers, magazines, television stations and news agencies have been shut down[1], and a total of about 110,000 people have been sacked or suspended and 37,000 arrested. Nine journalists from Turkey’s pro-opposition newspaper Cumhuriyet have been arrested and remanded in custody by a court in Istanbul.[2]

Recently, the government has removed 30 Kurdish mayors from office, suspended more than 11,000 teachers from Kurdish regions and shut at least 20 Kurdish media outlets, including a children’s television station that dubbed cartoons such as “The Smurfs” into Kurdish.[3] 11 lawmakers from People’s Democratic Party, or HDP (known as pro-Kurdish political party) were detained early Friday as part of ongoing terror-related investigations, including both party co-chairs and other senior officials.[4]

Lately, access was restricted to social media including Twitter, WhatsApp, YouTube and Facebook – making them so slow they were effectively impossible to use – and a ban imposed on media coverage of the car bomb. Asked about the measures, Prime Minister Yildirim said access would return to normal “once the danger is removed”.[5]

Besides, pro-government media have been spreading some propaganda news  since the beginning of November.[6] According to the news on these websites, FETO inmates will try to escape.

Before reading this recent news that should be known:

There have been more at least 17 “suicides” occurred in detention centers or in prisons so far.[7]

September 1 decree dissolved the current prison monitoring boards. Although prison monitoring boards were not an effective inspection mechanism, the government’s September dissolution of the boards in the absence of a functioning national preventative mechanism with authority to inspect all places of detention contributes to suspicion that the government is trying to avoid any oversight of places of detention.[8]

Besides, hundreds of prison guards have been dismissed since the failed coup attempt[9] and most them detained.[10]

With all the persecution written above, being in prisons as inmates is so dangerous now.

On pro-government social media accounts it is circulated that there will be some riots, inmates will set fires and hold guardians as hostages. And if these happen, all prisoners (especially the ones who are in Sincan and Silivri prisons) must be killed to stop.

Of course this is the propaganda. The plan is to set fires, make them seem as riots and kill many inmates.