Decision on merits; Subjects: CIVIL AND POLITICAL RIGHTS, TÃRKÄ°YE; [CCPR: UNO-Pakt II, Internationaler Pakt über bürgerliche und politische Rechte; Pacte international relatif aux droits civils et politiques; Patto II]
Volltext (verifizierbarer Originaltext)
GE.26-05474 (E) 220426 220426
Human Rights Committee
Views adopted by the Committee under the Optional
Protocol, concerning communication
No. 3697/2020*, **, ***, ****
Communication submitted by:
Ahmet Akdoğan, represented by counsel, Kadriye
Nur Tümen
Alleged victim:
The author
State Party:
Türkiye
Date of communication:
12 September 2019 (initial submission)
Document references:
Decision taken pursuant to rule 92 of the
Committee’s rules of procedure, transmitted to
the State Party on 7 January 2020 (not issued in
document form)
Date of adoption of Views:
12 March 2026
Subject matter:
Arrest, detention, conviction and imprisonment
for membership in the Fetullah terrorist
organization (Gülen movement)
Procedural issues:
Abuse of the right of submission; exhaustion of
domestic remedies; ratione materiae; same
matter; substantiation
Substantive issues:
Accused persons/convicted persons; arbitrary
arrest – detention; competent, independent and
impartial tribunal; criminal conviction; criminal
charges; criminal offence; criminal procedure;
deprivation of liberty; discrimination;
discrimination on other grounds; effective
remedy; equality before the courts and tribunals;
human dignity; liberty of person; national
security; privacy; promptly brought before a
judge; treatment of prisoners
* Adopted by the Committee at its 145th session.
** The following members of the Committee participated in the examination of the present
communication: Tania María Abdo Rocholl, Wafaa Ashraf Moharram Bassim, Rodrigo A. Carazo,
Yvonne Donders, Carlos Ramón Fernández Liesa, Laurence R. Helfer, Konstantin Korkelia, Dalia
Leinarte, Bacre Waly Ndiaye, Hernán Quezada Cabrera, Akmal Saidov, Ivan Šimonović, Soh
Changrok, Tijana Šurlan, Teraya Koji, Hélène Tigroudja and Imeru Tamerat Yigezu.
*** Individual opinions by Committee members Laurence R. Helfer (concurring), Carlos Ramón
Fernández Liesa (concurring), Hélène Tigroudja (concurring) and Teraya Koji (concurring) are
annexed to the present Views.
**** The annexes are being circulated in the language of submission only.
United Nations
CCPR/C/145/D/3697/2020
International Covenant on
Civil and Political Rights
Distr.: General
22 April 2026
Original: English
CCPR/C/145/D/3697/2020
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Articles of the Covenant:
2, 6, 7, 9, 10, 14, 15 and 18–27
Articles of the Optional Protocol:
2, 3 and 5 (2) (a) and (b)
1.
The author of the communication is Ahmet Akdoğan, a national of Türkiye born in
1947. He claims that the State Party has violated his rights under articles 2, 6, 7, 9, 10, 14,
15 and 18–27 of the Covenant. The Optional Protocol entered into force for the State Party
on 24 February 2007. The author is represented by counsel.
Facts as submitted by the author
2.1
On 15 July 2016, a failed coup d’état attempt took place in Türkiye. In response, on
20 July 2016, the Government declared a state of emergency. On 5 August 2016, the author
was taken into custody by police and detained for two days. On 7 August 2016, he was
arrested and transferred to Ödemiş closed prison. He was charged with being a member of
the Fetullah terrorist organization (also known as the Gülen movement), which was
considered by the State Party to be responsible for the coup d’état attempt. At the time of his
formal arrest, the author was forced to sign a document but was not given time to read it
properly. In the document, he stated that he had been given enough time and a proper
environment to meet with his attorney and had provided his testimony of his own free will.
2.2
On 31 July 2018, Uşak heavy penal court convicted the author of being a member of
a terrorist organization, downloading and using a digital application called Lib.Tango (an
online communication platform used by over 1 million people worldwide), depositing money
in Bank Asya and participating in public gatherings and other public activities. He was
sentenced to eight years and nine months of imprisonment.
2.3
On 21 December 2018, Izmir second regional court denied the author’s appeal against
his conviction. The author subsequently appealed his conviction to the Court of Cassation.
That appeal remained pending when the communication was submitted.1
2.4
Meanwhile, on 10 December 2018, the author applied to the Constitutional Court. He
claimed that his arrest and other unlawful procedures had violated his rights under articles 3,
5, 6, 8 and 14 of the Convention for the Protection of Human Rights and Fundamental
Freedoms (European Convention on Human Rights).2 That application remained pending
when the communication was submitted. The author maintains that the procedure before the
Constitutional Court has been unduly prolonged and is ineffective.
2.5
On 25 January 2019, the author filed a petition to the Supreme Court to request his
immediate release from detention. He argued that he had been convicted for acts that had not
been crimes under domestic law at the time in question, in violation of the principle of legality.
At the time of submission of the communication, that petition remained pending.3
2.6
On 29 July 2019, the author filed a request to the Ministry of Justice to be transferred
to another prison closer to his family’s residence. On 9 August 2019, his request was denied
on the ground that the Ministry of Justice could not act without an assessment from the health
board to indicate that the accommodation of the author on a single ward would pose a health
risk.
2.7
The author claims that domestic remedies are not effective or available to him. His
case is political. The domestic proceedings have been unduly prolonged. His ability to pursue
domestic remedies is limited by significant restrictions on his access to justice and the lack
of impartiality and independence of the courts in Türkiye.4 Under the state of emergency in
Türkiye, the rule of law has been effectively suspended. Courts are in practice controlled by
1 See para. 4.6 below.
2 Those articles concern torture and ill-treatment, liberty and security, fair trial, private and family life,
and discrimination, respectively.
3 On 18 September 2025, the author reported that his petition to the Supreme Court had been rejected
on 10 December 2019.
4 The author cites, for example, European Court of Human Rights, Selahattin Demirtaş v. Turkey,
application No. 14305/17, judgment, 20 November 2018.
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the executive branch of Government, whose members prosecute alleged Gülen movement
supporters as political opponents.
2.8
The author is in a fragile state of health because of his age. He has several health
problems, including ulcers, prostate issues, muscle and joint pain, high blood pressure and
memory loss. Since his arrest, he has been in solitary confinement. He is also affected by the
restrictions on his access to the prison yard and the recreation yard and by the fact that he is
not allowed to socialize with other prisoners. Despite his state of health, he has been denied
access to healthcare and necessary basic medication.
2.9
Between July 2018 and August 2019, the author sent a total of 14 requests to the
Ministry of Justice, the prison administration, the Public Prosecutor’s Office, the judge of
execution and the Supreme Court. Given his health problems, the author requested to be sent
to a hospital or a medical institution to obtain a medical assessment, to be released from
solitary confinement and to have access to the prison yard and the recreation yard. Those
requests have not been successful.
Complaint
3.1
The author submits that the State Party has violated his rights under articles 6, 7, 9,
10, 14, 15 and 18–27 of the Covenant.5
3.2
In violation of articles 6, 7 and 10 of the Covenant, the author experiences inhumane
conditions in prison, including solitary confinement. This has continually damaged his health
and placed his life at risk. He has been repeatedly denied access to medical care and proper
medication. This is part of a deliberate policy of denying prisoners access to necessary
medical care. The judiciary, in particular the prosecution and the prison administration, often
deny such access in order to extract forced confessions. The authorities regularly refuse to
authorize hospital transfers for sick prisoners and deny requests for medical leave for
critically ill prisoners, against the advice of medical professionals. The conditions at Ödemiş
prison (a T-type closed prison) are very poor. The number of inmates exceeds prison capacity.
The food is insufficient and inappropriate for the author’s medical condition. There is no
access to hot water when needed. The conditions adversely affect the author’s blood glucose
level. Use of the prison and recreation yards is highly restricted. The author cannot participate
in social or sporting activities or talk to other prisoners or detainees. He goes to the prison
yard by himself. His situation is humiliating and infringes his rights. Given his age and health,
the author should be released from detention.
3.3
In violation of article 9 of the Covenant, the author was arrested and detained without
a legitimate basis or solid evidence that he had committed a crime. He was only brought
before a judge two days after his arrest and was detained for prolonged periods. He had
nothing to do with the coup d’état attempt. The reasons for his detention and the charges
against him were not explained to him in a timely manner. The warrant for his arrest and
detention did not include any concrete facts or findings that could justify the need for
detention as opposed to a more lenient measure of judicial control. For example, there was
no indication that the author posed a risk of flight or had tampered with evidence.
3.4
The author’s right to a fair trial under article 14 of the Covenant was violated in
several respects. He was detained without being charged or informed of the charges against
him. He lacked sufficient time to prepare his defence, prepare for interrogations and call and
examine witnesses. His right to equality of arms was violated, as he lacked access to the
documents needed to adequately prepare his defence. Similarly situated individuals were also
systematically denied access to relevant documents during those years. In a forced confession
of guilt, the author was physically and psychologically coerced into signing statements
drafted by police or induced by the prosecutor or the investigating judge to accept statements
collected by the police. Furthermore, the courts rejected his arguments without properly
examining them.
3.5
In violation of article 15 of the Covenant, the author was convicted of invented crimes
that have no basis in domestic law.
5 The claim under article 2 of the Covenant was raised in the author’s subsequent comments.
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3.6
In violation of articles 19–26 of the Covenant, the author was accused of downloading
and using a legal digital application from a widely used online application store.
3.7
In violation of articles 21 and 25–27 of the Covenant, the author was accused of
having a bank account at Bank Asya, which was lawfully operating in the country at the time.
It began doing business in 1996 in Türkiye. On 29 May 2015, it was seized by the
Government and ceased operation on 22 July 2016.
3.8
As remedies, the author requests declaratory relief, sufficient safeguards to ensure
non-repetition of the violations, effective and independent investigation of his allegations of
ill-treatment, broader legislative or institutional changes or other initiatives (such as training
for government officials to prevent future violations), adequate compensation for him and
his family and a public apology.
State Party’s observations on admissibility and the merits
4.1
In its observations dated 20 July 2020, the State Party refers to a submission that it
previously provided in a separate case concerning the attempted coup d’état, the state of
emergency and the scope and necessity of the measures taken in that context. 6 In that
submission regarding a separate case, the State Party makes the following assertions. In
accordance with the findings of its domestic authorities, the Fetullah terrorist organization is
an armed terrorist organization established by Fetullah Gülen with the aim of overthrowing
the Government. The National Security Council of Turkey has established, in a number of
decisions, that the Fetullah terrorist organization is a terrorist organization that constitutes a
threat to national security and was responsible for the 15 July 2016 coup attempt in the State
Party. A nationwide state of emergency was declared as at 21 July 2016. In a notification of
derogation under article 4 of the Covenant, dated 21 July 2016, the State Party stated that, as
a consequence of the state of emergency, measures taken could involve derogations from
obligations under articles 2 (3), 9 and 10, 12–14, 17, 19, 21 and 22 and 25–27 of the Covenant,
as permissible under article 4 of the Covenant. Claims under articles 9, 10 and 14 of the
Covenant fall within the scope of the notification of derogation. Claims under those articles
of the Covenant, in relation to the period of derogation, are therefore inadmissible. In
accordance with article 4 of the Covenant, the decree laws issued and measures taken after
the declaration of the state of emergency were strictly required by the exigencies of the
situation and proportionate to the crisis faced by the authorities. The measures were only to
be in force during the state of emergency and were therefore temporary.
4.2
On 4 August 2016, Uşak Chief Public Prosecutor’s Office issued a search, seizure and
arrest warrant for the author, based on information that he was a member of the Fetullah
terrorist organization and was about to flee the country from an airport in Izmir. On the same
day, the author was taken into custody at the airport and was detained on 7 August 2016
under a decision of Uşak second magistrate’s office.7
4.3
Pursuant to article 91 (4) of the Code of Criminal Procedure, the author was held in
custody for 48 hours. On 6 August 2016, the Prosecutor’s Office extended the duration of his
custody by 24 hours, based on the nature of the crime in question, the large number of
suspects involved and the difficulty in obtaining evidence. That decision was in accordance
with article 3 (1) (a) of Decree Law No. 668.
4.4
The author was charged with being a member of an armed terrorist organization based
on the indictment against him. The indictment included the following findings and evidence:
the author was a director and board chair at institutions affiliated with the Fetullah terrorist
6 See Özçelik et al. v. Turkey (CCPR/C/125/D/2980/2017), para. 4.2.
7 The State Party provided a translation of the author’s signed statement to the police, dated 6 August
2016, which contained statements indicating that he had been informed of his right to remain silent
and that he was being charged with membership in the Fetullah terrorist organization under
articles 309, 311, 312 and 314 of the Penal Code. According to the document, the author was
informed that he had the right to a defence counsel and to notify relatives of his arrest. According to
the document, the author’s defence counsel and the author were taken to a meeting room where their
conversations could not be overheard; they subsequently stated that their meeting was sufficient.
After that point, the author’s statement was taken. The document included an indication that the
author had signed it with his free will and without any pressure in the presence of his lawyer.
CCPR/C/145/D/3697/2020
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organization; he had deposited money in Bank Asya (a financial institution affiliated with
the organization) pursuant to instructions from the organization; he had participated in
activities of the organization abroad; he had held meetings of the organization; and his phone
contained audio recordings of the leader of the organization.
4.5
On 31 July 2018, Uşak second assize court found that the author had served in Fetullah
terrorist organization institutions; had transferred money to his zero-balance bank account in
Bank Asya between 2014 and 2015, pursuant to orders of the same date from the organization;
had participated in meetings abroad with persons who were under investigation for the same
offences; had taught the doctrine of the leader of the organization to his students while
working in a private school affiliated with the organization; had posted favourable comments
about the organization on his social media accounts; had used the digital application
Lib.Tango, which was affiliated with the organization, for the purpose of communicating
with other members of the organization; and had messaged individuals who were being
prosecuted on the same charges on Lib.Tango. The Court further found that the author had
demonstrated continuity and dedication in his acts within the Fetullah terrorist organization
and determined that his involvement in the hierarchical structure of the organization was
evident. The Court convicted him of being a member of an armed terrorist organization on
that basis.
4.6
The author’s appeal to the sixteenth Criminal Chamber of the Court of Cassation was
rejected on the merits on 10 December 2019. The Court of Cassation concluded that the
procedures conducted and the evidence collected had been lawful, and that the author’s
allegations had been thoroughly examined by the lower court. The Court of Cassation found
that the lower court decision was based on concrete and consistent evidence.
4.7
The communication is inadmissible for several reasons. First, the author did not
exhaust all effective domestic remedies, since his application to the Constitutional Court
remains pending. The European Court of Human Rights considers that that remedy must be
exhausted. 8 Interim measures may be requested in the context of Constitutional Court
applications; the author has not applied for such a measure. Mere doubts about the prospects
of success of a particular remedy are not a valid reason for failing to exhaust it. Regarding
the length of proceedings before the Constitutional Court, in 2018, the Court ruled on 36,451
applications and, in 2017, it ruled on 89,653 applications. During the first six months of 2019,
it ruled on 14,351 applications.
4.8
In addition, the author did not raise before any of the domestic courts the substance
of his claims under articles 18, 19, 21, 22 and 25 of the Covenant. Regarding article 9 of the
Covenant, the author did not apply for compensation for his arrest and detention. Article 141
of the Code of Criminal Procedure permits such applications to the courts. According to the
European Court of Human Rights, that remedy must be exhausted.9
4.9
In addition, the communication is inadmissible because it is fictitious as a whole and
constitutes an abuse of the right of submission. The author relies on political and baseless
remarks and has not provided facts or information about how his rights were violated.
4.10
The communication is also inadmissible and without merit because it is insufficiently
substantiated. The author provided no facts or explanations about his claims under articles 18,
22, 21, 25 and 27 of the Covenant. His various allegations concerning a lack of access to
justice, forced confession and poor conditions of detention are not supported by evidence.
4.11
Regarding articles 6, 7 and 10 of the Covenant, the author was medically examined
and treated accordingly at the prison infirmary 34 times between 26 August 2016 and
8 For example, Mercan v. Turkey, application No. 56511/16, decision, 8 November 2016.
9 A.Ş. v. Turkey, application No. 58271/10, decision, 13 September 2016. According to the State Party,
article 141 of the Code of Criminal Procedure allows individuals who suffer losses during the
investigation or prosecution and have been subject to any of a series of actions to claim their material
and emotional losses from the State. Those actions include being subjected to an unlawful arrest,
being arrested with an arrest warrant without being informed of one’s rights, not being tried within a
reasonable time, being arrested without an arrest warrant etc.
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7 January 2020. During that period, he was also treated at Ödemiş State Hospital 15 times.10
He was given the necessary medication. At the prison, initial examinations and treatment are
provided at the infirmary. Those who need further treatment are referred to hospitals. All
examinations and treatments required by law are free of charge. All kinds of health services
are given in full to all convicts and detainees. The author could have sought, but did not, an
interim measure before the Constitutional Court to assert that his life and health were at risk
because of a denial of access to medical care in prison.
4.12
Under article 16 (6) of Law No. 5275, a criminal sentence may be deferred if a convict
cannot continue his life in prison because of a severe illness or disability. In accordance with
that provision, the author was referred to Ödemiş State Hospital for a health assessment. On
5 July 2019, the health board of the hospital reported that the author did not require nursing,
and that continuing to serve his sentence in a closed penal institution would not endanger his
general health. The health board stated that there was therefore no need to defer his sentence.
4.13
Regarding the author’s assignment to a single cell in prison, such decisions are made
by the management and observation board, which consists of physicians, psychologists,
teachers and other experts. Having considered the author’s medical condition, the board
decided that the author would stay in a single cell for security reasons.
4.14
On 23 August 2019, the author contested the latter decision before the Ödemiş Office
of the Judge of Execution, requesting cancellation of his placement in a single cell. The
Office referred the author to Ödemiş State Hospital for a medical assessment on whether the
single-cell detention posed a risk to his health. On 27 September 2019, the hospital reported
that the author did not require nursing and that his stay in a single cell did not pose a threat
to his general health or a risk of harm to him. On 5 December 2019, the author objected to
that decision. On 18 December 2019, Ödemiş first assize court rejected the objection and
concluded that no law or procedure had been violated.
4.15
Solitary confinement does not in and of itself constitute torture. Prohibiting contact
with other prisoners for security, disciplinary or protective reasons does not in and of itself
amount to inhuman treatment or punishment. The author’s rights were respected. He was
given the books he requested. His cell includes a television. He met with his lawyer 30 times.
He exercised his phone rights in accordance with the law. His family visited him regularly.
He was able to exchange letters. He can apply for education benefits.
4.16
While the author claimed that he was not given appropriate food, his diet was
monitored by the institution. On 25 January 2019, the prison doctor recommended providing
the author with a protein-rich diet. His health records do not indicate any health impairment
resulting from deprivation of food. Pursuant to article 72 of the Law on Execution of
Penalties and Security Measures (No. 5275), detainees and convicts are given nutritious and
varied food and drinking water to keep them strong and healthy. Their age, health, work and
religious or cultural preferences are considered. The conditions in the prison where the author
was held met relevant European standards.
4.17
Regarding articles 9 and 14 of the Covenant, at the time of the author’s arrest, he was
informed by law enforcement officers of his rights and of the court order for his arrest and
its basis. On the same day, his statement was taken by law enforcement officers in the
presence of his lawyer. On 7 August 2016, the author was informed of the charges and was
questioned at Uşak Chief Prosecutor’s Office in the presence of his lawyer. On the same day,
he was detained by decision of Uşak second magistrate’s office.
4.18
Under article 100 (3) (a) of the Code of Criminal Procedure, if facts give rise to a
strong suspicion of the crime with which the author was charged, grounds for detention can
be assumed to exist. Because the author was arrested at the airport where he was about to
flee the country, and given the nature of the offences in question, it was determined that
10 The State Party provided copies of a referral of the author from the prison to the hospital, dated
23 May 2019; the author’s request to the prison authorities, dated 24 August 2016, for renewal of his
medication; reports of the health board of the State Hospital, dated 5 July and 27 September 2019
(indicating that the author had coronary artery disease, hypertension and eye disease, was to be given
medication but did not require nursing and could return to a single cell in the prison); and documents
relating to the release of books to the author in the prison, phone records, correspondence and diet.
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measures more lenient than detention would not suffice, owing to the risk that he would
abscond.
4.19
The author had access to a lawyer of his choice.11 All of his statements were taken in
the presence of his lawyers and were signed by them. His continued detention was evaluated
ex officio by the respective court each month and during hearings held in accordance with
article 108 of the Code of Criminal Procedure. Each objection that he raised regarding his
continued detention was thoroughly reviewed by the respective court, and each objection
received a decision based on the law and concrete evidence.
4.20
The author was able to appeal his conviction to higher courts. He was represented by
several lawyers of his choice throughout the proceedings.
4.21
Under article 153 (2) of the Code of Criminal Procedure, defence counsels may be
restricted from accessing investigation files concerning certain offences upon the motion of
a public prosecutor and the decision of a judge. This restriction does not apply to expert
opinions, statements provided by the suspected person and other records of judicial
proceedings where the author was present. In accordance with article 138 of the Constitution,
the courts act independently.
4.22
Regarding article 15 of the Covenant, the author was a suspected member of Fetullah
terrorist organization, an armed organization that aims to overthrow the Government and
establish an oppressive and totalitarian system through force, violence, threats, blackmail and
other means. The fact that it is an armed terrorist organization had been established before
15 July 2016 by decision of Erzincan assize court. By a decision of the National Security
Council, the Fetullah terrorist organization was included in an official list of terrorist
organizations. The author was therefore charged with a criminal offence clearly specified in
the law.
4.23
The State Party advances various arguments relating to articles 18, 19, 21, 22, 25 and
27 of the Covenant, and concludes that there was no violation of the author’s rights under
any provisions of the Covenant.
Author’s comments on the State Party’s observations on admissibility and the merits
5.1
In his comments dated 16 November 2020, with respect to article 9 of the Covenant,
the author disputes that he was about to flee the country when he was taken into custody on
7 August 2016. He was unaware of the arrest warrant against him. He went to the airport with
his wife to visit his daughter and grandchildren in Belgium. He testified to that effect in court.
Accordingly, he should not have been suspected of attempting to flee the country.
5.2
The author also disputes the reasonableness of the decision to extend his placement
in custody for an additional 24 hours, after the first 48 hours. The author and his wife were
the only suspects in the case, all evidence had been collected, his house and belongings had
been searched and many documents or materials had been seized. It was therefore not
difficult for the authorities to obtain evidence and any such difficulty would not be a
legitimate basis for extending custody. Moreover, the decisions issued to extend the author’s
detention contained stereotyped and abstract language instead of concrete and legitimate
reasons.
5.3
With respect to articles 18, 19, 21 and 26 of the Covenant, activities such as
participating in public gatherings or public activities without promoting terrorism or violence
are lawful. Downloading the Lib.Tango application is protected under articles 18–26 of the
Covenant. It is used by more than 100 million people and is available in common online
mobile application stores. The author used Lib.Tango to communicate with his children and
grandchildren who live abroad. Having an account at Bank Asya was legal. It was one of the
three banks in Türkiye with the highest liquidity. It was targeted by the Government because
its shareholders included investors who were seen as having ties to the Gülen movement. At
least 700,000 people were investigated for their connections to the bank. Low-asset accounts
11 The State Party provides a copy of an official prison record, dated 14 March 2023, according to which
the author met with each of his two lawyers once each, and that no limitations were imposed on his
meetings with his lawyers. He was also visited by various family members numerous times.
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at Bank Asya are also insured by the Savings Deposit Insurance Fund, which is backed by
the Government. This is a tacit admission that depositing funds at Bank Asya is not a crime.
About 1.2 million people have accounts at Bank Asya; they are all considered to be potential
criminals.
5.4
With respect to the effectiveness of the Constitutional Court as a domestic remedy,
decisions of the Constitutional Court or other courts that displease the Government have not
been applied by lower courts. The Constitutional Court has declared inadmissible all
applications filed by those accused of being members of the Fetullah terrorist organization.
5.5
Regarding article 14 of the Covenant, almost every defendant whose case has a
political or public dimension has been denied access to their file. The author was denied
access to his own file and could not effectively challenge the charges against him or prepare
his defence. The author and his lawyer could not attend the hearings on continued detention.
In contrast, the prosecutor did attend those hearings.
5.6
Meetings between lawyers and their clients were not private between July 2016 and
August 2018. The authorities could record their meetings and have an official present at them.
The authorities could also block any exchange of documents and seize those documents.
They could prohibit prisoners from meeting with lawyers of their choosing.
5.7
Concerning abuse of the right of submission, the State Party is uncomfortable with
the publication of the relevant facts in an international forum. States Parties must not
deliberately end the lives of their citizens. Some judges and prosecutors have, after their
dismissal or arrest, been found dead in prisons under suspicious circumstances.
5.8
On 17 July 2019, a public official published a message on social media stating that
the author was in his 70s, had been in a solitary-confinement cell for three years, had many
illnesses and could die in prison. There is no logical basis for keeping an old and sick person
in a single cell for years. The State Party did not explain the security reasons for keeping the
author in a solitary cell and the measure was not taken as a disciplinary action. It is thus
arbitrary and discriminatory.
5.9
Regarding article 26 of the Covenant, more than 150,000 alleged members of the
Fetullah terrorist organization have been arrested and detained solely because of their social
background and political stance. The author could not benefit from the rights granted to
detainees in prison for a long time, especially during the period when the decree laws were
in force, from August 2016 to August 2018. Members of the organization receive different
treatment in detention as well. They do not enjoy the same rights to receive open visits in
prison and use the telephone and library.
5.10
Regarding the State Party’s position that the Gülen movement is a terrorist
organization, no other country or international institution has regarded it as such. The State
Party tried to systematically destroy the Gülen movement and its members for political
reasons. No soldiers, including the alleged leader of the failed attempted coup d’état, ever
stated that they were involved in the Gülen movement.
5.11
In violation of articles 2, 26 and 27 of the Covenant, the author was subjected to
discriminatory treatment based on his affiliation with the Gülen movement. He was accused
of reading certain books, depositing his money in a certain bank and having sympathy for a
non-governmental organization. He and hundreds of thousands of others were detained in
similar circumstances.
State Party’s additional observations
6.1
In its further observations dated 6 June 2023, the State Party informs the Committee
that, on 22 February 2022, the author was released from prison under probation. Between
July 2020 and February 2022, he received medical care and treatments upon request, sent
and received letters, participated in activities, borrowed books, received visits from relatives
and lawyers and made phone calls.
6.2
Having merged two individual applications submitted by the author on 10 December
2018 and 21 February 2020, the Constitutional Court issued a related judgment on 18 March
2021. The author had invoked the rights to be informed of the charges against him; to defend
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himself; to be presumed innocent; to call witnesses; to benefit from the principles of legality
and ne bis in idem; and to enjoy equality of arms, equality, privacy (in relation to prison
conditions), a fair trial, legal aid, independent and impartial proceedings, and liberty and
security (in relation to arrest, detention and prolonged detention). The Court declared most
of the authors’ claims inadmissible and dismissed the remaining claims. The Court based its
reasoning on insufficient substantiation, failure to exhaust remedies and failure to comply
with procedural requirements.
6.3
A separate application submitted by the author on 17 January 2020 remains pending
before the Constitutional Court. It concerns alleged violations of the prohibition of
ill-treatment, the right to an effective remedy, the prohibition of discrimination, and right to
a fair trial. Thus, the author has not exhausted domestic remedies.12
6.4
The author was apprehended based on a reasonable suspicion that he was a member
of the Fetullah terrorist organization, particularly given his attempt to travel abroad shortly
after the coup d’état attempt.
6.5
The author’s detention was lawfully extended by 24 hours under emergency domestic
legislation. The State Party derogated from article 9 of the Covenant during the state of
emergency. The increased workload of the courts after the attempted coup d’état justified the
extension of his detention. Remedies were available to the author under articles 91 (5) and
141 of the Code of Criminal Procedure but he did not pursue them. Article 91 (5) of the Code
of Criminal Procedure allows a detained person to request immediate release by filing a
petition with the relevant magistrate judgeship to allege a violation of unlawful apprehension
or detention in custody.
6.6
Contrary to the author’s allegations, the evidence against him (see paras. 4.4 and 4.5
above) sufficed to establish his membership in an organization officially designated by the
National Security Council an armed terrorist organization, in conformity with article 314 (2)
of the Penal Code.
6.7
Restrictions on the author’s access to the investigation file were lawful under
article 153 of the Code of Criminal Procedure. He did not challenge the restriction on his
investigation file. He did not initially allege violations of confidentiality between his lawyer
and himself, and no complaints were filed by him or his lawyer on that issue. The principle
of equality of arms was not violated, as the author and his lawyer were informed of the
evidence when the author’s statement was taken.
6.8
The author was held in a single cell, not in solitary confinement as defined by rule 44
of the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson
Mandela Rules). He retained access to meaningful human contact and medical care. The
measure was administrative, not disciplinary, and was based on security concerns.
6.9
The author’s general allegations about the State Party’s political establishment and
other individuals are irrelevant and inadmissible as actio popularis claims.
6.10
Judicial decisions regarding the continued detention of the author were lawful. The
author was informed of those decisions, as evidenced by a court order dated 9 August 2017.13
6.11
The use of Lib.Tango was not criminal per se. Rather, the communications sent
through it were considered evidence of organizational membership.
12 On 15 September 2025, counsel provided a copy of the decision of the Constitutional Court (dated
16 June 2022) concerning the author’s applications of 18 October 2019 and 17 January 2020. The
Court declared his claims inadmissible. They concerned ill-treatment, effective remedy,
discrimination in relation to prison conditions, equality, right to a defence, access to a court in relation
to his appeal against the decision to place him in a single cell in prison, and right to a reasoned
decision by the Ödemiş first heavy penal court.
13 The State Party provided a copy of the order of 9 August 2017, by Uşak second assize court. The
court based its decision to continue detaining the author on the nature of the crime; the applicable
penalty; concrete evidence of a strong suspicion of a crime; the ongoing collection of evidence; the
risk of flight, absconding and pressuring victims or witnesses; and the amount of time the author had
spent in detention. The court notified the author of his right to appeal the decision within seven days.
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6.12
The author’s claims of discrimination are unsubstantiated and largely refer to other
individuals. The author did not explain the applicability of article 27 of the Covenant to his
situation.
6.13
On 18 October 2024, the State Party provided detailed information on a recent
judgment issued by the European Court of Human Rights (Yasak v. Türkiye).14 It concerned
the criminal conviction and conditions of detention of another individual for membership in
the Fetullah terrorist organization. The Court found on the merits that the State Party had not
violated the applicant’s rights to freedom from torture and ill-treatment, or to punishment
without law (ex post facto criminalization). The Court’s findings should be taken into account
by the Committee in the author’s case.
Issues and proceedings before the Committee
Consideration of admissibility
7.1
Before considering any claim contained in a communication, the Committee must
decide, in accordance with rule 97 of its rules of procedure, whether the communication is
admissible under the Optional Protocol.
7.2
Under article 5 (2) (a) of the Optional Protocol and the State Party’s reservation to
that provision, the Committee is precluded from examining a matter that is being examined
or has been examined under another procedure of international investigation or settlement.
The Committee notes that, after submitting the communication, the author lodged an
application on 1 July 2022 with the European Court of Human Rights.15 In the application,
which remains pending, the author invoked the substance of articles 6, 7, 10 and 26 of the
Covenant in relation to conditions of detention for the period of his imprisonment. The
Committee considers that article 5 (2) (a) of the Optional Protocol precludes it from
examining the author’s claims under those articles. With respect to the remainder of the
claims, the Committee has ascertained that the same matter is not being and has not been
examined under any other procedure of international investigation or settlement. The
Committee further considers that, for the purpose of article 5 (2) (a) of the Optional Protocol,
authors of communications submitted to the Committee or their counsels should notify it
when subsequently submitting part or all of the same matter to another procedure of
international investigation or settlement.
7.3
The Committee notes the State Party’s position that the communication is
inadmissible as an abuse of the right of submission. In his comments dated November 2020,
the author raised a new claim under article 2 of the Covenant. The Committee recalls that
authors must raise all of their claims in their initial submission, before the State Party is asked
to provide its observations on admissibility and the merits of the communication, unless the
authors can demonstrate why they were unable to raise all of their claims simultaneously.16
In the present case, the author has not indicated why he could not have invoked article 2 of
the Covenant in his initial submission. Accordingly, the Committee considers that the claim
under article 2 of the Covenant constitutes an abuse of the right of submission and is therefore
inadmissible under article 3 of the Optional Protocol.
7.4
The Committee notes the State Party’s argument that the communication is also an
abuse of the right of submission because the author failed to explain the basis of his claims.
The Committee considers that the author has not sufficiently explained how his claims under
articles 18, 20, 23–25 or 27 of the Covenant are related to the content of those provisions.
Those claims are therefore also an abuse of the right of submission and are inadmissible
under article 3 of the Optional Protocol.
7.5
The Committee recalls that in accordance with article 5 (2) (b) of the Optional
Protocol, authors of communications must exercise due diligence in the pursuit of available
remedies.17 While there is no obligation to exhaust domestic remedies if they have no
14 Application No. 17389/20, judgment, 27 August 2024.
15 Application No. 35526/22.
16 For example, D.Č. v. Lithuania (CCPR/C/134/D/3327/2019), para. 8.4.
17 For example, F.C.S. v. Spain (CCPR/C/140/D/4063/2021), para. 6.4.
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GE.26-05474
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prospect of being successful, mere doubts or assumptions about their effectiveness do not
absolve the authors from exhausting them.18
7.6
The author has not contested the State Party’s assertion that he did not invoke the
substance of articles 18, 19, 21, 22 and 25 of the Covenant before any domestic courts.
Accordingly, the Committee declares those claims inadmissible under article 5 (2) (b) of the
Optional Protocol.
7.7
The Committee notes the State Party’s assertion that the author’s application to the
Constitutional Court of 17 January 2020 remains pending, and that he did not seek interim
measures from the Constitutional Court. The Committee observes that, on 16 June 2022, the
Court rejected the application, which according to the author concerned two complaints filed
by him on 18 October 2019 and 17 January 2020. The Court joined those complaints and
declared the application inadmissible on the basis that it was manifestly ill-founded. Because
the procedure has concluded, it does not constitute an obstacle under article 5 (2) (b) of the
Optional Protocol to the Committee’s examination of the communication.
7.8
The State Party maintains that the author did not exhaust domestic remedies with
respect to his claim under article 9 of the Covenant, because he did not file a petition with a
magistrate judgeship under article 91 (5) of the Code of Criminal Procedure to request his
immediate release from detention. The Committee notes that the State Party raised that
argument in its rejoinder, not in its initial observations. The Committee considers that States
Parties should raise all potential grounds of inadmissibility at the earliest possible opportunity
rather than raising different grounds sequentially.19 Moreover, the Committee notes that the
author filed in 2019 an unsuccessful petition to the Supreme Court to request immediate
release from detention. Taking that into account, the Committee considers that the
information provided about article 91 (5) of the Code of Criminal Procedure does not allow
it to conclude that the author availed himself of that remedy and, if resorted to, whether it
would have been an effective remedy to allow for a prospect of the author’s release during
the period of his detention and imprisonment.
7.9
The Committee also notes the State Party’s argument that the author did not exhaust
domestic remedies with respect to article 9 of the Covenant because he did not apply for
compensation under article 141 of the Code of Criminal Procedure. That provision does not
offer a prospect of terminating the deprivation of liberty. For that reason, the Committee
considers that it would not have been an effective remedy when the communication was
registered in 2020, as the author was deprived of his liberty from 5 August 2016 to
22 February 2022.20
7.10
The Committee must next examine whether the author was required to avail himself
of the procedure under article 141 of the Code of Criminal Procedure after his release from
detention. Notwithstanding the jurisprudence of the European Court of Human Rights cited
by the State Party,21 and taking into account the fact that the author in the present case
unsuccessfully challenged the lawfulness of his detention before the Supreme Court and the
Constitutional Court, the Committee considers that he was not required to also request
compensation under article 141 of the Code of Criminal Procedure before submitting his
communication to the Committee. Accordingly, article 5 (2) (b) of the Optional Protocol does
not pose an obstacle to the admissibility of his claim under article 9 of the Covenant.
7.11
The Committee notes that the State Party refers in its observations to its objection to
the admissibility of a previous case, Özçelik et al. v. Turkey.22 In that case, the State Party
invoked its derogation to article 9 of the Covenant, under article 4 of the Covenant. The
Committee considers that the assessment of whether the measures taken in the context of the
18 Ibid.
19 See, generally, M.O. v. Germany (CCPR/C/140/D/3232/2018), joint opinion by Committee members
Laurence R. Helfer and Imeru Tamerat Yigezu (concurring), para. 2.
20 See, for example, European Court of Human Rights, Turan and others v. Turkey, applications
Nos. 75805/16 and 426 others, judgment, 23 November 2021, para. 57, citing Mustafa Avcı v. Turkey,
application No. 39322/12, judgment, 23 May 2017, para. 60.
21 A.Ş. v. Turkey.
22 Para. 4.2.
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author’s arrest and detention were strictly required by the exigencies of the situation must be
examined in the context of the merits of the communication.23
7.12
The Committee takes note of the State Party’s position that the communication is
inadmissible because it is insufficiently substantiated. Regarding the claims under article 14
of the Covenant, the Committee considers that the author, who had legal assistance during
the domestic proceedings, has not provided sufficient details to substantiate his assertions
that he was denied access to the material he needed to prepare his defence, did not have an
adequate opportunity to call and examine witnesses and was coerced into signing a statement
of guilt. He has also not specified which aspects of the domestic decisions he considered to
be flawed, or which arguments the courts failed to consider. The Committee therefore
considers that the author has not sufficiently substantiated his claims under article 14 of the
Covenant. It thus declares them inadmissible under article 2 of the Optional Protocol.
7.13
The Committee notes the author’s claims under article 9 of the Covenant that he was
not brought promptly before a judge. The Committee recalls its general comment No. 35
(2014) on liberty and security of person, in which it stated, with respect to article 9 (3) of the
Covenant, that delays in bringing an individual who has been arrested or detained before a
judge should not exceed a few days from the time of arrest, and that 48 hours is ordinarily
sufficient for this purpose (para. 33). The author stated that he was detained on 5 July and
brought before a judge two days later, on 7 July 2016. According to the State Party, he was
arrested on 4 July and was brought before a judge on 7 July 2016. In the light of the
conflicting information, the Committee considers that this aspect of the author’s claim under
article 9 of the Covenant is insufficiently substantiated and therefore inadmissible under
article 2 of the Optional Protocol.
7.14
Regarding the claim under article 15 of the Covenant, the Committee considers that
the author did not provide sufficient information regarding the content of the decisions of the
domestic courts to substantiate this claim. The Committee therefore declares it inadmissible
under article 2 of the Optional Protocol.24
7.15
The Committee considers that the author has sufficiently substantiated the remaining
aspects of his claim under articles 9 of the Covenant. It therefore declares them admissible
and proceeds to examine them on the merits.
Consideration of the merits
8.1
The Committee has considered the communication in the light of all the information
made available to it by the parties, in accordance with article 5 (1) of the Optional Protocol.
8.2
Concerning the State Party’s derogation under article 4 of the Covenant, the
Committee recalls that a fundamental requirement for any measures derogating from the
Covenant is that such measures must be limited to the extent strictly required by the
exigencies of the situation, in accordance with the principle of proportionality. 25 The
Committee further recalls that the mere fact that a permissible derogation from a specific
provision may, of itself, be justified by the exigencies of the situation does not obviate the
requirement that specific measures taken pursuant to the derogation must also be shown to
be required by the exigencies of the situation.26 The fundamental guarantee against arbitrary
detention is non-derogable, insofar as even situations covered by article 4 cannot justify a
deprivation of liberty that is unreasonable or unnecessary under the circumstances.27 The
existence and nature of a public emergency that threatens the life of the nation may, however,
be relevant to a determination of whether a particular arrest or detention is arbitrary.28
23 Ibid., para. 8.8.
24 Based on the material made available by the author, the full content of the court decisions concerning
the author’s conviction is not clear.
25 Özçelik et al. v. Turkey, para. 9.2.
26 Ibid.; and general comment No. 29 (2001) on derogations from provisions of the Covenant during a
state of emergency, para. 4.
27 General comment No. 35 (2014), para. 66; and Özçelik et al. v. Turkey, para. 9.2.
28 Özçelik et al. v. Turkey, para. 9.2.
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8.3
The Committee notes the author’s claim under article 9 of the Covenant that his arrest
and detention were not justified, and that he was not promptly informed of the charges against
him. The Committee recalls its general comment No. 35 (2014), in which it stated that an
arrest or detention may be authorized by domestic law and nonetheless be arbitrary within
the meaning of article 9 (1) of the Covenant (para. 12). “Arrest” means any apprehension of
a person that commences a deprivation of liberty, and “detention” means the deprivation of
liberty that begins with the arrest and continues in time from apprehension until release.29
The notion of “arbitrariness” must be interpreted broadly to include elements of
inappropriateness, injustice, and lack of predictability and due process of law, as well as
elements of reasonableness, necessity and proportionality.30
8.4
The Committee notes the State Party’s position that the author’s detention was lawful
and that, when he was arrested, he was informed of his rights, the court order for his arrest
and the reasons for it. According to the State Party, the author was detained because he posed
a flight risk, having been arrested at the airport shortly after the attempted coup d’état, and
because he was accused of serious crimes. His detention was regularly reviewed. The
Committee also notes the explanation in the court decision of 9 August 2017 concerning the
reasons for the author’s continued detention.
8.5
However, the Committee notes that the State Party has not provided a copy of the
warrant that it states was issued on 4 August 2016 by Uşak Chief Public Prosecutor’s Office
for the author’s arrest and detention. The Committee further takes note of the author’s
uncontested allegation that he was detained for nearly two years before his conviction and
that, during that time, he and his lawyer could not attend multiple hearings extending his
pretrial detention, while the prosecutor was able to attend those hearings.31 The Committee
recalls that a derogation under article 4 of the Covenant cannot justify a deprivation of liberty
that is unreasonable or unnecessary,32 and considers that the State Party has not demonstrated
that the above-mentioned circumstances were strictly required by the exigencies of the
circumstances during the state of emergency in force during the relevant time. In view of the
foregoing, the Committee considers that the material made available to it does not
demonstrate that the author was promptly informed of the charges against him or that his
arrest and detention met the criteria of reasonableness, proportionality and necessity.
9.
Accordingly, the Committee, acting under article 5 (4) of the Optional Protocol, is of
the view that the facts before it disclose a violation by the State Party of article 9 of the
Covenant.
10.
Pursuant to article 2 (3) (a) of the Covenant, the State Party is under an obligation to
provide the author with an effective remedy. This requires it to make full reparation to
individuals whose Covenant rights have been violated. Accordingly, the State Party is
obligated to provide the author with adequate compensation. The State Party is also under an
obligation to take all steps necessary to prevent similar violations from occurring in the future.
11.
Bearing in mind that, by becoming a Party to the Optional Protocol, the State Party
has recognized the competence of the Committee to determine whether there has been a
violation of the Covenant and that, pursuant to article 2 of the Covenant, the State Party has
undertaken to ensure to all individuals within its territory and subject to its jurisdiction the
rights recognized in the Covenant and to provide an effective remedy when it has been
determined that a violation has occurred, the Committee wishes to receive from the State
Party, within 180 days, information about the measures taken to give effect to the
Committee’s Views. The State Party is also requested to publish the present Views and to
have them widely disseminated in the official language of the State Party.
29 General comment No. 35 (2014), para. 13.
30 For example, Alakuş v. Türkiye (CCPR/C/135/D/3736/2020), para. 10.3.
31 See European Court of Human Rights, Baş v. Turkey, application No. 66448/17, judgment, 3 March
2020, paras. 215 and 216.
32 Özçelik et al. v. Turkey, para. 9.4; and general comment No. 35 (2014), para. 66.
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Annex I
[English only]
Individual opinion of Committee member Carlos Ramón
Fernández Liesa (concurring)
1.
My view is unlikely to differ in substance with the Committee, although it involves a
terminological clarification which I believe may affect a broader interpretation of the
agreement or in relation to the application of international law. The law is a structure built
on legal concepts, and I believe we should examine the interpretation of certain terms in the
agreement or in international law where they may affect matters of substance of rights.
2.
The penultimate paragraph 8.2 of the Committee’s Views states that “the fundamental
guarantee against arbitrary detention is non-derogable”, whereas, in my view, it should state
that it is not “suspendable”; this is not a trivial matter, as it avoids confusion with a term
more typical of peremptory norms or jus cogens. In legal terms, in Spanish and other
languages, “derogating” from a right is not the same as “suspending” it, and this affects
fundamental legal concepts in international law. And this is not only because article 9 (1) of
the Covenant is not one of those provisions expressly mentioned in article 4 (2) (which do
not permit any suspension), but also because the way in which the paragraph is worded can
create a legal illusion, implying that something is non-derogable when, in my view, it is not
so provided for either in the Covenant or in general international law.
3.
Article 4 (1) permits a State, in certain exceptional circumstances, to “suspend”
obligations undertaken by adopting measures strictly limited to the requirements of the
situation, provided such measures are not incompatible with other obligations. Certain rights
may “never” be “suspended” (art. 4 (2)), such as the right to life (art. 6), the prohibition of
torture and inhuman or degrading treatment or punishment (art. 7), the prohibition of slavery
and servitude (art. 8 (1) and (2)), the prohibition on imprisonment for failure to fulfil a
contractual obligation (art. 11), the principle of legality (art. 15), the recognition of the legal
personality of every human being (art. 16) and freedom of thought, conscience and religion
(art. 18). The rules that can never be suspended in general international law are, in my view,
non-derogable. The reference to article 18 is not a matter of jus cogens, even though it is
included.
4.
According to the Human Rights Committee in general comment No. 29 (2001) on
derogations from provisions of the Covenant during a state of emergency (para. 7), the
reference in article 4 (2) to article 18, which contains a limitation clause in paragraph 3,
shows that the category of peremptory norms (para. 11) goes beyond the list of provisions
whose application cannot be suspended under the Covenant. The Committee considers that
there are other provisions that cannot be legitimately suspended, such as the requirement that
every person deprived of liberty be treated humanely and with respect for their inherent
dignity (based on the preamble and the relationship between articles 7 and 10), the prohibition
of genocide (in relation to minorities), the prohibition of hostage-taking, abductions, and
detentions not recognized under general international law, among others. In these latter cases,
we encounter limitations derived from jus cogens, which are not provided for in the Covenant
but which the Committee applies.
5.
To assert that the fundamental guarantee against arbitrary detention is non-derogable
might seem tautological, since if it is arbitrary, it is neither reasonable nor necessary, and
therefore no restriction would be permissible. But this does not mean that the rule is non-
derogable, either under general international law or under the Covenant itself, as its
suspension remains possible in certain circumstances. Suspension is not the same as
derogation or repeal. Norms of jus cogens are considered non-derogable and are not subject
to suspension, restriction or limitation under any circumstances.
6.
Notwithstanding doctrinal doubts regarding the precise identification of non-
derogable norms, the category of jus cogens norms is applicable to the interpretation of
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15
obligations under the International Covenant on Civil and Political Rights, both because the
International Court of Justice has consistently held this to be the case, and because of the
practice of the Human Rights Committee itself and the doctrinal acceptance of this normative
category; and, fundamentally, because it is referred to in article 53 of the Vienna Convention
on the Law of Treaties, the 2001 articles of the International Law Commission on State
responsibility for internationally wrongful acts, and the conclusions on peremptory norms of
general international law (jus cogens) adopted at seconding reading (2022) by the
International Law Commission.
7.
This normative category is of great relevance in international human rights law and
for the application of the International Covenant on Civil and Political Rights, as a large part
of the norms of jus cogens relate to these: thus, norms relating to the right to life, the
prohibition of slavery, torture and inhuman or degrading treatment, the obligation to respect
the right of peoples to self-determination, the norm prohibiting genocide (so closely linked
to article 27 of the Covenant), the principle of legality, along with other closely related norms
such as the non-derogable rules of international humanitarian law (largely reflected in
article 3 common to the 1949 Geneva Conventions) and the norm prohibiting aggression or
apartheid, among others. Most are recognized by the Covenant itself, whilst others are of a
general customary international law nature and apply equally with general scope.
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Annex II
[English only]
Individual opinion of Committee member Laurence R. Helfer
(concurring)
1.
When considering the admissibility of this case, the Committee notes that the author
filed an application with the European Court of Human Rights in 2022, nearly three years
after submitting a communication to the Committee (para. 7.2 of the Committee’s Views).
Article 5 (2) (a) of the Optional Protocol preludes the Committee from considering a
communication if “the same matter” is being examined under another procedure of
international investigation or settlement. Several States Parties to the Optional Protocol,
including Türkiye, have filed reservations extending this admissibility bar to a
communication that “has already been considered” under such a procedure.
2.
Applying article 5 (2) (a) and the reservation, the Committee compares the claims
raised by the author in both proceedings. It declares inadmissible those claims which in
substance allege violations of the same rights protected in both the Covenant and the
European Convention on Human Rights relating to the author’s conditions of detention.
However, it does not apply “the same matter” admissibility bar to the other claims alleged in
the communication (para. 7.2). The Committee thus allows the author to proceed before the
two complaints mechanisms simultaneously, ultimately finding a violation of article 9 of the
Covenant because the author was not promptly informed of the charges against him and his
arrest and detention were not reasonable, proportionate or necessary (para. 8.5).
3.
This result may seem in tension with the principles of lis pendens and res judicata
codified in article 5 (2) (a) and the reservations thereto. In fact, the result accords with the
Committee’s settled jurisprudence, which interprets “the same matter” as encompassing “the
same claim concerning the same individual” who raises “the same basic set of facts and
allegations” before two complaints procedures, either simultaneously or consecutively.1 This
standard implicitly recognizes that “a single human rights violation may engage with many
different rights under many different instruments”, but that no one complaints mechanism
may be competent “to authoritatively evaluate all of the dimensions of [a] rightsholder’s
claim”.2
4.
The Committee’s interpretation of “the same matter” in article 5 (2) (a) does not
preclude individuals from engaging in certain types of “forum shopping” between
international and regional human rights review mechanisms.3 However, complainants who
seek to split their claims between two or more mechanisms should do so with caution.
5.
First, authors and their counsels have a duty of candour to the Committee. They must
disclose whether they have previously or “subsequently submit[ed] part or all of the same
matter to another procedure of international investigation or settlement” (para. 7.2). Failure
to do so may result in a finding of abuse of the right of submission and dismissal under
article 3 of the Optional Protocol.
6.
Authors and their counsels should also carefully explain whether and how claims
presented to another complaints mechanism are similar to or different from those submitted
under the Optional Protocol. The Committee has declined to apply article 5 (2) (a) or its
associated reservations if the Covenant rights allegedly violated have no equivalent in a
1 E.A. v. Türkiye (CCPR/C/142/D/3668/2019), paras. 7.2 and 7.3; see also Hermosilla Barrio v. Spain
(CCPR/C/136/D/3102/2018), para. 8.2.
2 Kate McKinnes, “Multiple submissions before a fractured treaty body system: lessons in advocacy
from Validity International and Topház Special Home”, Journal of Human Rights Practice, vol. 17
(2025), p. 4.
3 Laurence R. Helfer, “Forum shopping for human rights”, University of Pennsylvania Law Review,
vol. 148 (1999), p. 285.
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regional human rights instrument.4 In contrast, the Committee has invoked the “same matter”
inadmissibility rule when a Covenant right “provides greater protection” than the
concomitant right in a regional instrument,5 and when rights guaranteed in both treaties are
“sufficiently proximate” or “cannot be dissociated” from each other.6 Where, however, an
equivalent right “differ[s] in substance and in regard of [its] implementation procedures from
the rights set forth in the Covenant”, the Committee has occasionally found that “the same
matter” had not been raised in the other proceeding.7
7.
Finally, authors and their counsels should consider submitting all of their claims to
the Committee, or to another procedure of international investigation or settlement, if such a
procedure is competent to examine such claims. From an individual complainant’s
perspective, such an approach provides an opportunity for the seized court or treaty body to
comprehensively assess the rights allegedly violated and to recommend appropriate measures
to remedy them. From a systemic perspective, this approach enhances the ability of the
international protection system writ large to efficiently and effectively provide justice to all
victims of human rights violations.
4 E.g., Mahabir v. Austria (CCPR/C/82/D/944/2000), para. 8.5 (noting that “the European Court was
able to examine the same matter only insofar as the substantive rights protected under the European
Convention converge with those protected under the Covenant”, and refusing to apply article 5 (2) (a)
to articles 10 and 26 of the Covenant, which are protected by “neither the European Convention nor
its Protocols”).
5 E.g., Loth v. Germany (CCPR/C/98/D/1754/2008), para. 6.4 (recalling that “the independent right to
equality and non-discrimination in article 26 of the Covenant provides greater protection than the
accessory right to non-discrimination contained in article 14 of the European Convention”, but
finding the communication inadmissible under article 5 (2) (a) where “the same substantive issue was
considered by the [European] Court”); see also Linderholm v. Croatia (CCPR/C/66/D/744/1997),
para. 4.2.
6 Fernández v. Spain (CCPR/C/85/D/1396/2005), para. 6.2; and S.N.K. v. Türkiye,
(CCPR/C/141/D/4275/2022), para. 6.5.
7 Casanovas v. France (CCPR/C/51/D/441/1990), para. 5.1.
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18
GE.26-05474
Annex III
[English only]
Individual opinion of Committee member Hélène Tigroudja
(concurring)
1.
I agree with the conclusion reached by the Committee regarding the violation of
article 9 of the Covenant in the present case. As stated in paragraph 8.5 of the Committee’s
Views, the State Party has not established the necessity and the proportionality of the
prolonged pretrial detention of the author, nor why he and his counsel were not able to attend
the hearing on the extension of the detention. The Committee also rightly stressed that
although article 9 is not formally listed as a non-derogable right under article 4 of the
Covenant, “the fundamental guarantee against arbitrary detention is non-derogable, insofar
as even situations covered by article 4 cannot justify a deprivation of liberty that is
unreasonable or unnecessary under the circumstances” (para. 8.2).
2.
However, the purpose of the present opinion is twofold: to clarify the authors’
procedural duties when they present an individual complaint before the Committee (para. 7.2)
and to better explain why in this case, on the contrary to the Views adopted in Alakuş v.
Türkiye,1 the Committee declared inadmissible the claim under article 15 of the Covenant
(para. 7.14).
3.
As far as the authors’ and their procedural duties are concerned (para. 7.2), the
Committee has not much elaborated on what a former judge of the European Court of Human
Rights called “the good faith that the parties must show” before international adjudication
bodies.2 When the authors are unrepresented before the Committee, this latter may apply
some flexibility when assessing the consistency of the factual background and the accuracy
of the claims under the Covenant. However, when the author is represented by a counsel, the
Committee is allowed to expect not only a good faith but also candid and diligent procedural
behaviour throughout the proceedings.
4.
In the present case, as indicated in paragraph 7.2, the author applied to the European
Court after lodging his complaint before the Committee. However, this information was not
diligently notified by the author or by his counsel but was gathered by the Committee proprio
motu, which had to assess whether the claims brought before the European Court were like
those brought to the Committee. Based on the file, it is unclear whether the non-disclosure
of this important procedural element for assessing article 5 (2) (a)3 was deliberate or based
on the lack of familiarity of the author with the United Nations treaty body proceedings.
Moreover, considering the length of the procedure before the Committee, one might
understand that the author aimed to get a legal determination on his claims without prolonged
delay. Nevertheless, the right to lodge an individual complaint under article 1 of the Optional
Protocol implies the good faith behaviour of the authors and their counsels, which means, in
particular, the duty to share any important information that may have an impact on the
Committee’s jurisdiction, the admissibility of the complaint or the assessment of the merits.
Otherwise, this may lead to an abuse of the right of submission under article 3 of the Optional
Protocol and rule 99 (c) of the rules of procedure of the Committee.4
5.
In respect of the claim under the criminal legality (art. 15), and keeping in mind not
only Alakuş v. Türkiye but also the Grand Chamber judgment of the European Court, Yüksel
Yalçinkaya v. Türkiye, that explicitly relied on Alakuş,5 and the concluding observations of
1 CCPR/C/135/D/3736/2020.
2 European Court of Human Rights, Van der Tang v. Spain, Application No. 19382/92, Judgment,
13 July 1995, para. 8.
3 See in this regard the opinion of my colleague Laurence Helfer on the present case.
4 See, for instance, J.A.N.C. v. Colombia (CCPR/C/129/D/2922/2016), para. 7.4.
5 European Court of Human Rights, Grand Chamber, Application No. 15669/20, Judgment,
26 September 2023.
CCPR/C/145/D/3697/2020
GE.26-05474
19
the Committee on the second periodic report of Türkiye,6 the conclusion reached by the
Committee in the paragraph 7.14 of its Views must be clarified.
6.
The reason why, despite all the precedents I mentioned and the 239 individual
applications brought against Türkiye in which the European Court found a violation of
articles 6 (1) (right to a fair trial) and 7 (criminal legality) of the European Convention on
Human Rights,7 I rallied the Committee in this regard is because the author and his counsel
did not provide the translation of the domestic judicial decisions. Therefore, contrary to
Alakuş8 and the other precedents of the European Court, the Committee was unable to assess
whether downloading the Lib.Tango application and sharing information through it were the
main basis for the author’s conviction. The hundreds of individual cases brought before the
European Court of Human Rights or the treaty bodies leaves little doubt that, in Türkiye,
there has been a misuse of the counter-terrorism measures.9 Nevertheless, when deciding on
individual complaints, the Committee must ascertain that the circumstances of the case led
to a breach of the Covenant for the authors.
7.
In this regard, the present case must not be read as a reversal of the important Alakuş
precedent but as a call for authors and their counsels not only to behave in procedural good
faith before the Committee but also to carefully substantiate their claims based on the
Covenant.
6 CCPR/C/TUR/CO/2, para. 15.
7 European Court of Human Rights, Demirhan and others v. Türkyie, Applications No. 1595/20 and
others, Judgment, 22 July 2025, paras. 35–47.
8 Para. 10.4.
9 See the report of the Special Rapporteur on the promotion and protection of human rights and
fundamental freedoms while countering terrorism and the third-party intervention before the
European Court in the pending Yasak v. Türkiye (A/HRC/61/52, footnote 9).
CCPR/C/145/D/3697/2020
20
GE.26-05474
Annex IV
[English only]
Individual opinion of Committee member Teraya Koji
(concurring)
1.
I agree with the Committee’s conclusion that there has been a violation of article 9 of
the Covenant. This separate opinion concerns the merits addressed from paragraph 8 onwards.
2.
The Committee rightly begins its analysis by focusing on the requirement under
article 4 that any derogating measure must be “to the extent strictly required by the exigencies
of the situation.” In relation to article 9, general comment No. 35 (2014) characterizes, albeit
with a qualifying clause, the fundamental guarantee against arbitrary detention as “non-
derogable”, thereby drawing it closer to article 4 (2). However, in substance, the Committee
is interpreting the requirement set out in article 4, paragraph 1. In doing so, it employs
“arbitrariness” as the key concept, encompassing elements such as reasonableness, necessity
and proportionality, although the relationships among these concepts are not always clearly
delineated and are often used interchangeably. Since arbitrariness is expressly embedded in
the text of article 9, it may appear that the substance of article 9 – once derogated from –
re-enters the analysis through the back door as a relevant consideration. This, however, is
better understood not as a reintroduction, but as a reframing: arbitrariness operates as a
controlling criterion within article 4, paragraph 1, informed by the normative content of
article 9.
3.
This assessment must be undertaken in light of the specific and evolving
circumstances of the public emergency. Accordingly, the considerations relevant to
arbitrariness are more tightly circumscribed than in ordinary situations, as they are anchored
in the requirement of strict necessity and the particular exigencies invoked by the State Party.
4.
The State Party’s arguments (para. 8.4) merit consideration. In particular, taking into
account the capacity of the courts in the context of evidence-gathering (para. 4.4) may not,
depending on the circumstances, be regarded as unreasonable. However, this cannot justify
deficiencies in arrest warrants in cases such as the present one. More importantly, while the
State Party itself appears to acknowledge that the measures must be temporary (para. 4.1, last
sentence), the fact remains – as the Committee appropriately observes – that the author was
detained for approximately two years. Such prolonged detention is difficult to reconcile with
what is “strictly required by the exigencies of the situation”.
5.
The assessment of necessity and proportionality must also consider whether less
intrusive measures were available and whether the continued detention was subject to
periodic and meaningful judicial review. While judicial proceedings were ongoing,
information of this kind should have been more clearly demonstrated. The State Party refers
to the author’s alleged failures. However, even if the Committee has found the claims under
article 14 inadmissible, this does not render the underlying procedural guarantees irrelevant.
Rather, the author’s rights under article 14 remain pertinent insofar as they inform the
assessment of arbitrariness under article 9 and, by extension, the evaluation under article 4,
paragraph 1. Given the exceptional nature of derogation, the burden lies with the State Party
to convincingly demonstrate that the measures were strictly necessary and proportionate;
such necessity cannot be presumed, particularly in situations involving prolonged detention.
6.
In this connection, a comparative perspective further reinforces this conclusion: the
American Convention on Human Rights explicitly recognizes procedural guarantees as
non-derogable (art. 27, para. 2), underscoring the fundamental role such guarantees play even
under exceptional circumstances.