From Balyoz to July 15... What has changed?!

It was the AKP government that introduced the right to individual application to the Constitutional Court and ensured that ECHR rulings were considered superior to our domestic law. But it has also been the AKP government that no longer recognizes the rulings of either the Constitutional Court or the ECHR when it does not suit its interests.

The day before yesterday, we wrote about a "shocking" decision taken against Turkey by another international body: the UN Human Rights Council Working Group on Arbitrary Detention.

It was "shocking" in nature; because according to the UN, former Air Force Commander Akın Öztürk, who is called the "number 1" of the July 15 coup attempt and was therefore sentenced to 141 aggravated life sentences and thousands of years in prison, had been arbitrarily detained and denied a fair trial in violation of the provisions of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.

For this reason, he was required to be released immediately, paid compensation, and an investigation opened into those responsible for the legal violations in question.

Interestingly, not a leaf stirred in Ankara; not a single person came out to say, "Hey UN... I do not recognize this decision, I will not implement it... Turkey is greater than the UN."

Yet, in the Akın Öztürk decision, there were important emphases alongside those demands.

For example, while drawing attention to the significant increase in the number of cases referred to the Working Group from Turkey regarding arbitrary detentions in the last 7 years, it was warned that "widespread or systematic detention or other severe deprivation of liberty in violation of the fundamental rules of international law may constitute crimes against humanity"...

It was requested that the opinion reported regarding Akın Öztürk be announced by all possible means and as widely as possible...

It was noted that if the decisions regarding Akın Öztürk are not implemented within 6 months, an "action recommendation" will be made to the Human Rights Council...

And it was reported that it is an "appropriate time" for a new visit by the Working Group to Turkey, following their last visit in October 2006...

FROM WHERE TO WHERE IN 15 YEARS

Another significance of this UN decision is that it allowed us to understand once again where the law in our country has come from and where it is going, and what has changed and what has not.

How so?

As is known, 15 years ago, the Balyoz (Sledgehammer) conspiracy, which broke the back of the Turkish Armed Forces, took place and 250 officers were thrown into prison.

At that time, they also applied to the UN Working Group on Arbitrary Detention.

The Working Group, which announced its opinion in July 2013, concluded, just as it did today, that the articles of the Universal Declaration of Human Rights and the Covenant on Civil and Political Rights regarding "arbitrary detention, fair trial, and the right to defense" were violated, and asked Turkey to compensate for this situation.

It also ruled that the defendants had a right to compensation.

Again, just like today, it was noted that "the Turkish Government did not provide a response regarding the stated violations"!..

One of the very important findings regarding the violations in the Balyoz decision was that the failure to seek the testimonies of the then-Chief of General Staff General Hilmi Özkök and Land Forces Commander General Aytaç Yalman was seen as a significant deficiency in terms of revealing the truth.

Let us note that in Akın Öztürk's complaint application, attention was drawn to the fact that important witnesses such as the then-Chief of General Staff General Hulusi Akar and 2nd Chief General Yaşar Güler were heard in a private session rather than in court, without naming them.

Following the Working Group's Balyoz decision, debates began over whether it was "binding"; it was said, "it is not binding, but its symbolic meaning and moral impact are great."

Meanwhile, TRT, relying on an "unnamed official," argued that the Working Group's report did not even bind the UN Secretariat. The "FETÖ" newspapers Zaman and Bugün also reported this claim exactly as it was!..

The UN Working Group's decision was also brought to the agenda during the appeal hearings of the Balyoz conspiracy verdicts at the 9th Criminal Chamber of the Court of Cassation in 2013. Attorney Hüseyin Ersöz emphasized that the decision was binding and requested that it be taken into consideration.

But the panel did not pay attention and upheld the convictions.

One of those who did not let the matter drop was retired Colonel Mustafa Çalış, one of the defendants in the Balyoz conspiracy. He wrote letters to the Ministry of Justice from Silivri Prison many times, asking whether the UN Working Group decision was binding.

When he could not get an answer from there, he wrote to the then-President Abdullah Gül on January 21, 2014. The Presidency referred this letter to the Ministry of Justice. Dr. Yavuz Yılmaz, the then-Deputy Head of the Human Rights Department of the Ministry of Justice, who is currently serving at our Permanent Representation to the Council of Europe, sent the following response to Mustafa Çalış on behalf of the Ministry on April 14, 2014:

"The UN Working Group on Arbitrary Detention, operating in Geneva, Switzerland, has been granted powers such as expressing opinions and making evaluations regarding allegations of deprivation of liberty in violation of the principles stipulated in the United Nations Universal Declaration of Human Rights and other international conventions signed by countries, and organizing visits to countries when it deems necessary in this context. Individuals also have the right to apply to the Working Group with the claim that the decision of deprivation of liberty against them is arbitrary."

Let us come to the present day.

The then-President and members of the 9th Criminal Chamber of the Court of Cassation, who upheld the Balyoz conspiracy verdict, are still being tried in the Supreme Court (Yüce Divan) on charges of "misconduct in office." They even had hearings yesterday. During previous hearings, retired Colonel Mustafa Çalış again asked whether the UN Working Group decisions were binding.

When the defendants answered that they were "not binding," he presented that letter from the Ministry of Justice to the Constitutional Court panel.

It is clear that nothing has changed in the name of law in 15 years; on the contrary, it has gone even further backward. Just look; even in the decision given regarding Akın Öztürk, who is called the "number 1" of July 15, there is no need felt to discuss either the content or the possible consequences!..

Müyesser YILDIZ

February 14, 2025