Why Rights Do Not Return Through Mercy

Mercy and Law: A Legal Distinction

Over a century ago, the American legal scholar Wesley Hohfeld developed an analytical distinction that sheds remarkable clarity on today’s Turkish debate: mercy and law are not the same thing. Mercy is a benefit that those in power grant at will and revoke at will. A right, on the other hand, is a legal position that an individual can claim and enforce in court, and whose protection is the responsibility of the state.

The crucial point runs deeper. A right in the technical sense presupposes not only a corresponding duty on the part of the state, but also an immunity—that is, the rule that the state lacks the authority (disability) to unilaterally alter the legal position. Without this immunity, even a passport that has been formally returned remains merely a revocable benefit, not a right. This is precisely where the structural problem with Turkey’s state of emergency decrees since 2016 lies: Not only were new burdens imposed on individuals; the immunities that were supposed to protect them from such burdens were systematically eroded. The Venice Commission noted this in substance in its opinion CDL-AD(2016)037: There is a lack of individualized evidence, full judicial protection, a proportionality review, and independent review.

Therefore, the question of restoring rights that have been taken away involves two things at once: restitution in individual cases—and the rebuilding of the institutional architecture, without which this restitution cannot be permanent.

Why Authoritarian Regimes Do Not Voluntarily Restore Rights

Political science frames the question more matter-of-factly: Why should an authoritarian regime voluntarily relinquish one of its most effective instruments of power? Comparative research offers several consistent answers to this question.

First, any restitution is an implicit admission. A returned passport raises the question of the legal basis on which the original revocation occurred. Authoritarian regimes avoid such questions because they inevitably entail claims for accountability, compensation, and responsibility.

Second, as Milan Svolik has empirically demonstrated, repression in autocratic systems is not the exception but rather an instrument for securing power—both vis-à-vis society and within the regime coalition. A tool serving this function is not relinquished without good reason.

Third, as Hannah Arendt has already shown, such systems operate according to a logic of the categorical enemy: individuals are judged not by what they have done, but by the group to which they are assigned. The target group may change; the system’s need for an enemy remains.

Fourth—and this is what is discussed the least—autocratic leaders fear their own coalition less than they fear the voters. Any show of leniency can be interpreted internally as a sign of weakness. Leniency thus becomes less a moral issue than a strategic one.

Above all, however, the following holds true: Without independent institutions, promises made by those in power are not binding commitments. What is granted today can be revoked tomorrow. The classic finding of institutional economics by Douglass North and Barry Weingast can be directly applied to the debate on the rule of law: Without immunities secured by independent courts, rights remain political concessions.

The Historical Finding: Nine Countries, One Answer

This thesis can be tested against history. Where, in the last century, have rights that had been revoked been permanently restored—through a change of heart by those in power or through the restoration of the rule of law?

In the GDR, the Stasi files were not opened because the regime had changed its mind, but because the regime had collapsed; rehabilitation laws of 1991 and 1992 provided rights with a new legal basis. In the Soviet Union, the Stalinist injustices committed against millions could not be legally addressed until 1991—after the systemic change. In Chile, the amnesty law enacted by Pinochet in his own favor was later declared incompatible with international law by the Inter-American Court of Human Rights (Almonacid Arellano, 2006). Argentina repealed the amnesty laws of the military dictatorship (Law 25,779 of 2003; upheld by the Supreme Court in the Simón case, 2005). South Africa institutionalized the Truth and Reconciliation Commission by law; the Constitutional Court upheld this approach in the AZAPO case (1996). Spain’s “pacto del olvido” was initially accepted—and revised decades later by the laws on historical and democratic memory of 2007 and 2022. Poland’s Round Table Talks were not the result of the regime’s own goodwill, but of a shift in the balance of power. Finally, Romania and Bulgaria required years and numerous proceedings before the European Court of Human Rights to resolve structural property issues even after the transition to democracy (the landmark Maria Atanasiu ruling, 2010; structural findings in the Velikovi series, 2007).

One might object that in Spain, Brazil, or Taiwan, the opening came “from above.” That is true—and it does not refute the thesis, but rather clarifies it. Even in cases of an opening from above, lasting rights only emerge once independent courts, constitutional review, and free elections are institutionally entrenched. Juan Linz and Alfred Stepan’s “only game in town” condition clearly distinguishes here between the beginning and consolidation: an act of opening may be a start; it is never a guarantee.

Strasbourg’s Response: Yalçınkaya and Yasak

This discussion is not abstract. Over the past three years, the European Court of Human Rights has assessed the situation in Turkey from a legal perspective in two Grand Chamber judgments.

In the judgment Yüksel Yalçınkaya v. Turkey (Grand Chamber, September 26, 2023, Application No. 15669/20), the Court found that the mere use of the ByLock application is not sufficient grounds for a conviction for membership in an armed terrorist organization. It found not only an individual violation of Article 7 of the ECHR but also a structural violation: In light of over 8,000 similar complaints, the Court called for general measures under Article 46 of the ECHR, particularly regarding the approach of Turkish courts to ByLock evidence (para. 418).

On May 5, 2026, the judgment in Yasak v. Turkey (Grand Chamber, Application No. 17389/20) was handed down. The case itself is instructive. In August 2024, the Chamber had found no violation—a judgment that was criticized by legal experts as a step backward and was voted “worst judgment of 2024” in a reader poll conducted by the Strasbourg Observers. At the applicant’s request, the case was referred to the Grand Chamber under Article 43 of the ECHR, which overturned the Chamber’s decision by a vote of 11 to 6 (Article 7 of the ECHR) and 9 to 8 (Article 3 of the ECHR). In terms of substance, the Grand Chamber clarified in §§ 200–213 the requirements the Convention imposes on a conviction for membership in an armed terrorist organization: Criminal liability is individual; the subjective element of the offense (mens rea) must be proven separately for each defendant; the Court’s warning against liability by association (guilt by association, § 202) is unambiguous. Mere membership in an organization that was legally established at the time, a bank account, or employment at an educational institution is not sufficient to prove criminal intent.

The institutional level is also noteworthy: even the correction of a Chamber judgment in Strasbourg was not achieved through goodwill, but through the referral procedure under Article 43 of the ECHR. The thesis of this text is thus confirmed by the course of the proceedings themselves.

Taken together, both judgments amount to a single finding: this is not a matter of isolated errors, but of a systematic erosion of legal guarantees; the reversal must therefore be equally systematic. And it cannot be left to the goodwill of the Turkish authorities. Enforcement falls within the jurisdiction of the Committee of Ministers (Art. 46 of the ECHR). The fact that the procedure under Article 46(4) of the ECHR was actually applied in the case of Kavala v. Turkey (Grand Chamber, July 11, 2022; Interim Resolution CM/ResDH(2022)21) demonstrates that the European human rights system is based not on trust, but on institutions.

Hope Is Not an Expectation

Why, despite all this, do many cling to the hope that things will one day sort themselves out? This can be explained not politically, but humanly. Persistent uncertainty is one of the heaviest burdens a person can bear; every source of support, every glimmer of confidence, every small piece of news takes on significance because it makes endurance easier.

But hope and expectation are not the same thing. Expectation is tied to the actions of others; hope to one’s own orientation. Václav Havel, who spent a large part of his life under a totalitarian regime, put it this way: Hope is not the conviction that things will turn out well, but the conviction that they have meaning—regardless of their outcome. This is precisely the essence of all human rights work. Gathering evidence, conducting proceedings, documenting standards, building institutions—none of this guarantees success; yet the significance of this work does not depend on success either.

No authoritarian regime has lasted forever. But no rule of law has ever emerged simply by waiting. Behind every such system lie years of legal work, the perseverance of civil society, international solidarity, and people who were not willing to give up on the truth. That will not change today either.

Let us not give up hope. But let us not pin our hopes on the goodwill of individuals, but rather on the primacy of the law. For what sustains people is not merely that they hope; it is what they base their hope upon.