CCPR/C/145/D/4067/2021

GE.26-05471 (E) 210526 210526

Human Rights Committee

Views adopted by the Committee under the Optional

Protocol, concerning communication No. 4067/2021*, **, ***

Communication submitted by:

Tevfik

Soylu

(represented

by

counsel,

Saadet Melike Soylu)

Alleged victim:

The author

State Party:

Türkiye

Date of communication:

14 October 2021 (initial submission)

Document references:

Decision taken pursuant to rule 92 of the

Committee’s rules of procedure, transmitted to the

State Party on 21 December 2021 (not issued in

document form)

Date of adoption of Views:

12 March 2026

Subject matter:

Conviction

and

imprisonment

for

alleged

membership in the Fetullah terrorist organization

(Gülen movement)

Procedural issues:

Exhaustion of domestic remedies; substantiation;

victim status

Substantive issues:

Accused

persons/convicted

persons;

arbitrary arrest – detention; arbitrary/unlawful

interference;

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

Articles of the Covenant:

9 (1)–(4), 10 and 17; and 2, read in conjunction

with 26

* Adopted by the Committee at its 145th session (2–19 March 2026).

** The following members of the Committee participated in the examination of the communication:

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.

*** An individual opinion by Committee member Hélène Tigroudja (concurring) is annexed to the

present Views.

United Nations

CCPR/C/145/D/4067/2021

International Covenant on

Civil and Political Rights

Distr.: General

22 May 2026

Original: English

CCPR/C/145/D/4067/2021

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GE.26-05471

Articles of the Optional Protocol:

2, 3 and 5 (2) (b)

1.

The author of the communication is Tevfik Soylu, a national of Türkiye born in 1967.

He claims that the State Party has violated his rights under articles 9 (1)–(4), 10 and 17; and 2,

read in conjunction with 26 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 17 October 2017, the Istanbul anti-terrorism bureau launched a criminal

investigation into the author, based on his alleged membership in the Fetullah terrorist

organization (also known as the Gülen movement). The organization was alleged to have

been involved in an attempted coup d’état in Türkiye in 2016. On 17 October 2017, the

authorities searched the author’s house and took him into custody.

2.2

On 19 October 2017, while detained, the author gave an oral statement to the police.

The author was not informed of the reasons for his detention or the charges against him. He

was denied the right to appoint and have access to a lawyer who could review the decision to

arrest him and the evidence against him. During the seven days of his detention by the police,

the author was confined with eight other persons in a cell which had only one bed. Basic

hygiene conditions were not met; the author could not meet his toilet needs in a manner

befitting human dignity and could not take a bath. He was held in police custody until

24 October 2017, when the Istanbul Second Criminal Court of Peace ordered his pretrial

detention.

2.3

During his trial, the author was moved to Silivri Prison (since renamed Marmara

Penitentiaries Campus), where he was detained for approximately one year. The conditions

in Silivri Prison were inadequate: the cell the author was placed in was intended to

accommodate 14 persons but was generally shared by 41 persons. The author repeatedly

objected to his detention, but all of his applications were rejected, always with the same

standard language used for other detainees in similar situations. No individualized reasons

were given in the rejection letters. The hearings at which the author’s detention was examined

were all held in his and his lawyer’s absence.

2.4

On 30 October 2017, the Istanbul Chief Public Prosecutor’s Office indicted eight

individuals, including the author, on the charge of membership in an armed terrorist

organization, in violation of article 314 of the Turkish Penal Code. Specifically, the author

was alleged to have: (a) downloaded and used ByLock, an encrypted digital messaging

application; (b) maintained a deposit account at Bank Asya, which had been closed pursuant

to a government decree after the attempted coup d’état; and (c) worked for a company funded

by Bank Asya. According to the author, Bank Asya had been operating within the law, and

after the Government decided to close it, having a deposit account at the bank was

retroactively criminalized. The ByLock application was shut down on 19 February 2016,

after the national intelligence agency reported that the application was used exclusively by

members of the Gülen movement.

2.5

The indictment was accepted by the Thirty-third High Criminal Court of Istanbul and

the eight defendants were tried together over the course of about one year. Six hearings were

held in total; the judges and prosecutors involved were constantly changing and they did not

have sufficient information about the case. During the trial, the author requested an expert

evaluation to determine whether he had indeed downloaded and used ByLock on his phone.

The Thirty-third High Criminal Court of Istanbul denied his request. The author claimed

during the trial that he had not used ByLock, that in any case, such use would not constitute

a crime, that ByLock data could not be used lawfully during the trial, that it was not a crime

to deposit money in a bank or to work at a company that was authorized and supervised by

the relevant State bodies, and that there was a flawed assumption that persons who had

accounts with Bank Asya should have known that they should sever their ties with it. The

author argued that the indictment contravened the principles of legal security, predictability

and the rule of law. However, the Criminal Court did not take the author’s objections into

account.

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2.6

On 15 October 2018, the Istanbul Thirty-third High Criminal Court convicted the

author of violating article 314 of the Penal Code and sentenced him to a prison term of eight

years, one month and 15 days. In its judgment, the Criminal Court found that the author had

used ByLock, which was used by members of the Fetullah terrorist organization only, that he

had an account with Bank Asya, that he had deposited money into that account, that he was

associated with the Fetullah terrorist organization and that he had worked at a company that

had been closed by decree. The Criminal Court stated that the crime had taken place on

17 October 2017. However, the author was taken into custody on that date. He could not,

therefore, have committed a crime then.

2.7

The author appealed to the Regional Court of Appeal against his conviction and the

extension of his detention. On 25 February 2019, his appeal was rejected.

2.8

The author filed a further appeal to the Sixteenth Criminal Chamber of the Court of

Cassation. On 20 May 2021, the appeal was rejected on the merits.

2.9

The author did not apply to the Constitutional Court for relief. It would be an unduly

prolonged process, as the Committee has itself determined previously.1

2.10

In an additional submission dated 1 November 2021, the author indicated that he had

in fact submitted an application to the Constitutional Court, and that it was pending.

Complaint

3.1

The author submits that the State Party has violated his rights under articles 9 (1)–(4),

10, 17; and 2, read in conjunction with 26 of the Covenant.

3.2

In violation of article 9 (1) of the Covenant, the author was arbitrarily held in pretrial

detention for approximately one year without any reliable evidence that he had committed a

crime or could be a member of a terrorist organization. His statement was not taken by the

police until two days after his arrest, and he was then held for another five days. Under

article 10 of Decree Law No. 684 on making certain arrangements under the state of

emergency, which was in force at that time, persons arrested on the ground of being a member

or leader of a terrorist organization could be detained for up to seven days. Notwithstanding

that provision, there was no legal basis for detaining the author further. During that seven-day

period of detention in police custody, the author was not brought before a judge.

3.3

The Criminal Court did not cite any concrete evidence against the author but instead

based its judgment on the allegation that he had used the ByLock application. The use of an

application such as ByLock is not criminalized under domestic law, which enshrines the

principle of legality. ByLock may be downloaded from ordinary mobile phone application

stores. The Committee has previously stated that a decision to detain a person based on his

or her use of the ByLock application was not reasonable or necessary. 2 Without

individualized reasoning, the courts rejected all of the author’s attempts to challenge his

detention, citing the same generic grounds used for other detainees.

3.4

With respect to article 9 (2) of the Covenant, the author was not immediately informed

of the reasons for his arrest. Neither he nor his lawyer were informed of the charges against

him. They were not allowed to examine his case file before the authorities took his statement.

3.5

Regarding article 9 (3) of the Covenant, the author was brought before a judge seven

days after he was taken into custody. After he gave a statement (two days after his

apprehension), he was detained for five more days, even though there was no legal obligation

requiring him to remain in custody any longer.

3.6

In violation of article 9 (4) of the Covenant, the courts examined the author’s requests

for release from detention in his absence. Although the prosecutor was able to comment on

the request to prolong the author’s detention during the hearings, the prosecutor’s position

was not communicated to the author. That situation violated his right to equality of arms.

1 Özçelik et al. v. Türkiye (CCPR/C/125/D/2980/2017).

2 Ibid., para. 9.4.

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GE.26-05471

3.7

Regarding article 10 of the Covenant, during his detention, the author was held with

approximately seven other persons in a very small cell with only one bed and inadequate

hygiene facilities. During another period, he was detained with approximately 41 prisoners

in a prison cell intended to accommodate up to 14 persons. He was not treated humanely or

with dignity.

3.8

Contravening the author’s right to privacy under article 17 of the Covenant, the police

arbitrarily searched his home without a warrant and without any specific evidence apart from

his use of the ByLock application. Under the Turkish Penal Code, houses may not be

searched at night, except in a few circumstances which did not apply in the author’s case.3

3.9

In violation of article 2, read in conjunction with article 26 of the Covenant, the author

was arrested based on his affiliation with the Gülen movement,4 and domestic criminal law

was applied to the author in a discriminatory and arbitrary manner. Judicial organs are

supervised by the Council of Judges and Prosecutors. After the attempted coup d’état, the

executive branch of the Government became involved in the work of that Council. The

author’s detention, based on his presumed affiliation with the Gülen movement, resulted in a

discriminatory judgment by the courts, which were under pressure from the executive branch

of Government. The President, deputies and ministers openly criticized accused persons.

State Party’s observations on admissibility and the merits

4.1

In its observations of 21 June 2022, the State Party considers that the communication

is inadmissible because it is anonymous, as it was not signed by the author or his

representative. The communication is also inadmissible because the author has not exhausted

domestic remedies. Although he initially stated that he had not sought relief before the

Constitutional Court, on 26 July 2021 – well before his submission to the Committee – he

submitted an application to the Constitutional Court. He alleged before that Court the same

violations that he has invoked before the Committee. That application is currently pending.

Mere doubts about the effectiveness of remedies does not absolve authors from the

requirement to exhaust them.5 In addition, the author mischaracterized the Committee’s

position in Özçelik et al. v. Türkiye. In that case, the Committee did not declare that the

Constitutional Court is ineffective in its entirety. Rather, it found that the State Party had

failed to demonstrate that it was effective because the State Party had failed to provide

sufficient information.

4.2

Furthermore, the author’s claim under article 2, read in conjunction with article 26 of

the Covenant, is inadmissible because it is insufficiently substantiated. The author claims that

he faced discrimination because the entire judicial system in Türkiye lacks independence and

impartiality. However, he did not make specific assertions as to how the courts or other

authorities subjected him to discrimination during the criminal proceedings. He relied only

on unfounded and speculative assumptions about the judicial system as a whole.

4.3

The communication is also without merit. Regarding article 9 of the Covenant, the

State Party formally derogated from its obligations under that provision during the state of

emergency declared on 21 July 2016, following the attempted coup d’état. In any case, the

author’s arrest and detention were lawful and were based on a reasonable suspicion that he

belonged to the Fethullah terrorist organization, an armed terrorist group officially

recognized as such by the National Security Council and the domestic courts. The evidence

cited includes the author’s use and installation of the ByLock application, which has been

deemed to be used exclusively by Fetullah terrorist organization members, financial

transactions with Bank Asya, which is affiliated with the Fetullah terrorist organization, and

employment at a company which was closed down under Decree Law No. 667 because of its

links to the Fetullah terrorist organization. It should be emphasized that, at the time the author

used ByLock, it was no longer available to download from mobile phone application stores.

3 Pursuant to article 118 of the Turkish Code of Criminal Procedure, exceptional circumstances allow

searches to be conducted at night in residences, workplaces or other closed places, if their purpose is

to capture a person who has been caught in the act of committing a crime, if a delay would be

objectionable or if the person has escaped after being taken into custody.

4 A/HRC/WGAD/2019/53, para. 91.

5 For example, V.S. v. New Zealand (CCPR/C/115/D/2072/2011), para. 6.3.

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GE.26-05471

5

After it was removed from those stores, it could be installed on mobile phones only by

members of the Fetullah terrorist organization using external memory devices, memory cards

and Bluetooth. Thus, it was not possible for a person who was not a member of the Fetullah

terrorist organization to install and use ByLock. For that reason, the judicial authorities

determined that the installation and use of ByLock constituted reasonable grounds for

suspicion of membership in the Fetullah terrorist organization.

4.4

Procedural safeguards were respected. On 17 October 2017, the author was informed

of the reasons for his detention, through a form setting forth his rights,6 which he signed. He

was also brought before a judge within the seven-day limit provided for under Decree Law

No. 667, as amended by Decree Law No. 684.7 Reviews of his detention were carried out

lawfully without hearings, in accordance with the state of emergency, under Decree Laws

No. 667 and No. 668. Restrictions on access to the investigation file were lawful under

article 153 (2) of the Code of Criminal Procedure and were lifted when the prosecution was

initiated. In a similar case, the Constitutional Court found that the principle of legality had

been respected by a lower court which had convicted an individual of membership in a

terrorist organization on the basis of the use of ByLock.8 The Constitutional Court noted that

the trial court had evaluated all of the features of ByLock and its differences from more

commonly used applications. The trial court had concluded that ByLock had been used

exclusively by members of the Fetullah terrorist organization since its launch in early 2014.

The Istanbul Criminal Magistrate’s Office arrested the author on 24 October 2017 based on

evidence suggesting a strong suspicion of criminal conduct, the need to gather evidence

safely and thoroughly, and the notion that judicial control measures would not suffice. In

view of the foregoing, the State Party did not violate the author’s rights under article 9 of the

Covenant.

4.5

With respect to article 10 of the Covenant, the author was treated humanely. He was

held in Silivri No. 2 L Type Penal Institution. Hygiene conditions at the police detention

centre were regularly assessed, and reports and cleaning logs were completed.9 Meals were

nutritious and culturally appropriate, and dietary accommodation was available. The author

received psychological support, including interviews with psychosocial services. He

participated in recreational activities. According to a report of 2022 by the Human Rights

and Equality Institution of Türkiye, there were no complaints at the prison about insufficiency

of food, and psychological services were available. Following the attempted coup d’état,

detention facilities were temporarily overcrowded. However, the State Party derogated from

its obligations under article 10 of the Covenant during the state of emergency.

4.6

Regarding article 17 of the Covenant, the search of the author’s home was authorized,

documented, lawful and proportionate. It was conducted at night because of the risk that the

author might escape. That condition satisfies the “peril in delay” exception under article 118

of the Code of Criminal Procedure and article 4 of the Regulation on Judicial and Preventive

Searches. Many suspects associated with the Fetullah terrorist organization attempted to flee

after the attempted coup d’état.

4.7

With respect to article 2, read in conjunction with article 26 of the Covenant, the State

Party recalls its arguments described in paragraph 4.2 above and maintains that the author’s

prosecution was based solely on objective evidence of his membership in the Fetullah

terrorist organization. It was not based on personal beliefs, affiliations or discriminatory

6 The State Party provided a translation of the suspect/defendant rights form, signed and dated by the

author on 17 October 2017. According to the form, the author was taken into custody “on suspicion of

a FETO/PDY offence”; his possible involvement in other offences was also subject to investigation;

he had the right to a defence counsel and a right to appeal his arrest and detention before a judge; and

he understood his rights.

7 According to article 6 (1) (a) of Decree Law No. 667, which entered into force on 23 July 2016, for

terrorism-related offences, the detention period after a suspect has been apprehended and taken into

custody shall not last longer than 30 days. On 2 February 2017, the period of 30 days was amended to

7 days under Decree Law No. 684.

8 Şen v. Türkiye, Application No. 2018/8903, Judgment, 15 April 2021.

9 The State Party provided a copy of an inspection report of the police detention centre dated

15 November 2017, and a cleaning log record of the security and detention rooms of the Investigation

Bureau for Combating Terrorism and Organized Crime for the period from 16 to 23 October 2017.

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GE.26-05471

motives. Judicial independence is guaranteed in the Constitution. There were no

discriminatory remarks made or actions taken during the criminal proceedings.

Author’s comments on the State Party’s observations on admissibility and the merits

5.1

In his comments of 22 August 2022, the author reiterates his arguments and maintains

that the communication is sufficiently substantiated and was duly signed by his representative.

In addition, he maintains that “it would be an ineffective remedy for the author, who was

arrested on the grounds of using the programme called Bylock, to apply to the Constitutional

Court”. The Constitutional Court lacks the competence to review measures imposed under

decree laws, has a backlog of over 81,000 cases and has, in the past, considered that the mere

use of ByLock constitutes strong suspicion of criminal activity.10 Indeed, in several decisions

taken between 2017 and 2021, the Constitutional Court upheld convictions and detentions

that had been based solely on the use of ByLock.11

5.2

Given that the State Party did not meet the requirements of article 4 of the Covenant,

it may not derogate from its obligations under article 9 of the Covenant. The author’s

detention was not strictly required by the exigencies of the situation; it also violated the

principle of legality and proportionality. While the State Party asserts that only members of

the Fetullah terrorist organization could download ByLock, an Internet search indicates that

ByLock has been downloaded 500,000 times from one online mobile application store which

is freely accessible and 100,000 times from another such store. It has been downloaded by

users in 34 countries.

5.3

The author’s ByLock data was obtained in May 2016 by the national intelligence

agency without judicial authorization, in violation of article 6 (2) of Law No. 2937 and the

Code of Criminal Procedure. It is very easy to tamper with digital data and produce false

evidence. The courts relied on unverified technical reports without conducting independent

forensic analysis.

5.4

Contrary to the State Party’s assertion, the author was not promptly informed of the

charges against him. The form that the State Party provided is filled in the same way for

everyone. The author, who was not a lawyer, did not have a chance to read and understand

it. The form does not indicate that the author was informed of the reasons for his detention.

No information or documentation regarding the use of ByLock was given to the author or his

lawyer. In addition, the author and his lawyer could not access the case file until 9 November

2017, when the indictment was submitted. The author could not obtain a copy of the

investigation file. The fact that he was brought before a judge only after seven days of

detention constitutes an arbitrary and unjustified delay, in violation of article 9 (3) of the

Covenant.

5.5

Article 4 of the Covenant does not exempt the State Party from its obligations under

article 10 of the Covenant. The author was held in overcrowded and unhygienic conditions

during both pretrial detention and imprisonment. According to the 2021 Council of Europe

Annual Penal Statistics, the total prison capacity in Türkiye was 233,194, while there were

297,019 persons in prison. Among the member States of the Council of Europe, Türkiye has

the highest prison population density.

5.6

Regarding article 2, read in conjunction with article 26 of the Covenant, the author

cites reports to support his argument that the judiciary in Türkiye lacks independence and

impartiality and operates under the influence of the executive branch of the Government.12

5.7

On 22 August 2025, counsel indicated that on 2 September 2022, the Constitutional

Court had declared the author’s application of 26 July 2021 inadmissible. The Constitutional

Court considered that the author’s claim concerning his right to liberty and security of person

was not timely, as he had not applied to the Court within 30 days of the final judgment of the

10 Yavuz and others v. Türkiye, Application No. 2016/22169, Judgment, 20 June 2017.

11 For example, Ferhat Kara, Application No. 2018/15231, Judgment, 4 June 2020, paras. 147–164.

12 For example, International Commission of Jurists, “The Turkish criminal peace judgeships and

international law” (2018) and “Justice suspended: access to justice and the state of emergency in

Turkey” (2018).

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court of first instance. In addition, the Constitutional Court found the author’s claims relating

to the right to a fair trial and the principle of legality manifestly ill-founded.

Further submissions

From the State Party

6.1

On 18 October 2024, the State Party provided detailed information on a judgment that

had been issued in August that year by the European Court of Human Rights

(Yasak v. Türkiye).13 It concerned the conviction and detention of another individual for

membership in the Fetullah terrorist organization. In assessing the merits of the application,

the European Court had found 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 considered by the Committee in the author’s

case.

From the author

6.2

On 22 August 2025, the author informed the Committee that he had been released

from detention on an unspecified date.

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

The Committee has ascertained, as required under article 5 (2) (a) of the Optional

Protocol, that the same matter is not being and has not been examined under any other

procedure of international investigation or settlement.

7.3

The Committee notes the State Party’s position that the communication is

inadmissible under article 3 of the Optional Protocol because it is anonymous. In assessing

whether counsel is duly authorized to represent the author,14 the Committee observes that

both the author and his counsel signed the complaint form. The Committee considers that

those signatures suffice to demonstrate that counsel is duly authorized to be the author’s

representative within the meaning of rule 99 (b) of the Committee’s rules of procedure. For

that reason, the Committee considers that article 3 of the Optional Protocol does not

constitute an obstacle to its examination of the communication.

7.4

The Committee notes the State Party’s position that the author had not exhausted

domestic remedies because his application to the Constitutional Court remained pending. The

Committee further notes the contradictory information in the author’s communication and

subsequent submissions, in which he alternately stated that he had not, had and then had not

filed an application to the Constitutional Court. According to the State Party’s information,

the author had in fact filed his application to the Constitutional Court on 26 July 2021, that

is, before submitting the present communication. The author does not explain why he

provided the Committee with incorrect information about that application at different times.

The Committee wishes to recall that authors who take action under the Optional Protocol

must provide truthful information and come before it in good faith.15

7.5

In any case, the Constitutional Court declared the author’s application inadmissible in

2022. It declared the substance of the claims under article 9 of the Covenant inadmissible as

they were not submitted in time, because the author had not applied to the Court within the

requisite 30-day period following the final judgment of the trial court. The remaining claims

13 Application No. 17389/20, Judgment, 27 August 2024.

14 Adylova et al. v. Kazakhstan (CCPR/C/140/D/3044/2017-3045/2017, CCPR/C/140/D/3063/2017,

CCPR/C/140/D/3072/2017), para. 7.4.

15 For example, Pernalete López and Llovera Hurtado v. Bolivarian Republic of Venezuela

(CCPR/C/143/D/3283/2019), para. 10.5.

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GE.26-05471

were declared inadmissible for other reasons. The Committee recalls that authors of

communications must exercise due diligence in the pursuit of available remedies.16 The

Committee also recalls that the effectiveness of a remedy does not depend upon the certainty

of a favourable outcome for the author and that mere doubts about the effectiveness of a

remedy do not absolve the author from the obligation to attempt to exhaust that remedy.17 In

situations where a State Party circumscribes rights of appeal with certain procedural

requirements, such as time limits or other technical requirements, authors are required to

comply with those requirements before they can be said to have exhausted domestic

remedies.18

7.6

Nonetheless, the Committee recalls its concern regarding the effectiveness of the

Constitutional Court of Türkiye in cases involving pretrial detention, owing to the

non-implementation, by lower courts, of the Constitutional Court’s findings in two cases in

which the Court had found violations of the applicants’ rights.19 With reference to that

previous jurisprudence,20 the Committee notes that it would be for the State Party to establish

that the remedy of an individual application to the Constitutional Court was effective, both

in theory and in practice, in cases concerning the right to liberty and security. The Committee

finds that, in the circumstances of the author’s case, the State Party has not shown that a

timely individual complaint to challenge the author’s pretrial detention before the

Constitutional Court would, in practice, have been effective. For that reason, article 5 (2) (b)

of the Optional Protocol does not pose an obstacle to the examination of the author’s claims

under article 9 (1)–(4) of the Covenant.

7.7

With respect to the author’s remaining claims, the Committee notes that the

documentation that he provided does not suffice to establish that he raised the substance of

all of his claims under the Covenant in his appeals to the Regional Court and the Sixteenth

Criminal Chamber of the Court of Cassation. The courts’ judgments refer to the substance of

article 9 of the Covenant only, among the claims raised in the communication, and the

documentation provided does not indicate which claims were raised in the author’s

applications to those courts. Accordingly, the Committee considers that the claims in relation

to articles 2, 10, 17 and 26 of the Covenant are inadmissible under article 5 (2) (b) of the

Optional Protocol.

7.8

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.21 In that case, the State Party

invoked its derogation from its obligations under 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 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.22

7.9

The Committee declares the author’s claims under article 9 (1)–(4) of the Covenant

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

submitted 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 be limited to the extent strictly required by the exigencies of

the situation, in accordance with the principle of proportionality. It also recalls that the mere

16 Alakuş v. Türkiye (CCPR/C/135/D/3736/2020), para. 9.6.

17 For example, D.Č. v. Lithuania (CCPR/C/134/D/3327/2019), para. 4.16.

18 For example, V.G. v. Russian Federation (CCPR/C/139/D/2824/2016), para. 8.6; and Celal v. Greece

(CCPR/C/82/D/1235/2003), para. 6.4.

19 Alakuş v. Türkiye, para. 9.5; and Özçelik et al. v. Turkey, para. 8.5.

20 Alakuş v. Türkiye, para. 9.5; and Özçelik et al. v. Turkey, para. 8.5. See also European Court of

Human Rights, Alpay v. Turkey, Application No. 16538/17, Judgment, 20 March 2018, para. 121; and

Altan v. Turkey, Application No. 13237/17, Judgment, 20 March 2018, para. 142.

21 Özçelik et al. v. Turkey, para. 4.2

22 Ibid., para. 8.8.

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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.23 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. The existence and nature of a public

emergency which threatens the life of the nation may, however, be relevant to a determination

of whether a particular arrest or detention is arbitrary.24

8.3

The Committee notes the author’s claims under article 9 (1) of the Covenant that he

was arbitrarily held in pretrial detention for almost one year without any reliable evidence

providing a strong suspicion that he had committed a crime. The Committee recalls its

general comment No. 35 (2014) on liberty and security of person, 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. The notion of “arbitrariness” must be interpreted

broadly to include elements of inappropriateness, injustice, lack of predictability and due

process of law, as well as elements of reasonableness, necessity and proportionality

(para. 12).25

8.4

As a preliminary matter, the Committee notes that according to the terms used by the

State Party, the author was taken into custody on 17 October 2017 and was arrested on

24 October 2017. He was detained during that period. The Committee recalls that for the

purpose of article 9 of the Covenant, the term “arrest” refers to any apprehension of a person

that commences a deprivation of liberty, and the term “detention” refers to the deprivation of

liberty that begins with the arrest and continues in time from apprehension until release.

Arrest within the meaning of article 9 need not involve a formal arrest as defined under

domestic law. 26 Thus, article 9 of the Covenant applies from the time of the author’s

apprehension on 17 October 2017.

8.5

The Committee notes the State Party’s assertion that on that date, following the

author’s apprehension, he was immediately informed of his rights and the reasons for his

arrest when he was given a form that he subsequently signed. The Committee observes that,

based on the material made available to it, there does not appear to have been a warrant or

court order for the author’s arrest when he was apprehended.27 The court order for his arrest,

dated 24 October 2017, concerned the author and seven other individuals (all accused of

membership of the Fetullah terrorist organization) and did not include individualized

reasoning.28 The author was not brought before a judge until 24 October 2017. He then spent

nearly one year in pretrial detention, until 15 October 2018, during which time reviews of his

continued detention were conducted without hearings. While noting the State Party’s position

that it was lawful under Decree Laws No. 667 and No. 668 to review detention in the absence

of the detained individual, the Committee takes note of the author’s assertion that, while the

prosecutor argued in favour of continuing the author’s detention, the prosecutor’s position

was not communicated to the author. The Committee considers that those combined

circumstances indicate that the author did not have an effective review of his continued

detention and that this was not strictly required by the exigencies of the state of emergency

and the decree laws in place during that time. In particular, the Committee considers that the

absence of an adversarial hearing and the non-disclosure of the prosecutor’s submissions

undermined the author’s ability to challenge the lawfulness and necessity of his continued

detention. The Committee recalls that a derogation under article 4 of the Covenant cannot

justify a deprivation that is unreasonable or unnecessary.29 In view of the foregoing, the

Committee considers that the State Party has not demonstrated that the author’s arrest without

a warrant and his continued detention without hearings met the criteria of reasonableness and

necessity. Accordingly, the Committee finds that the circumstances of his arrest and pretrial

23 Ibid., para. 9.2; and general comment No. 29 (2001), para. 4.

24 General comment No. 35 (2014), para. 66; and Özçelik et al. v. Turkey, para. 9.2.

25 For example, Alakuş v. Türkiye, para. 10.3.

26 General comment No. 35 (2014), para. 13.

27 Kurbanova v. Tajikistan (CCPR/C/79/D/1096/2002), para. 7.2.

28 According to the translation of the indictment provided by the author.

29 Özçelik et al. v. Turkey, para. 9.4; and general comment No. 35 (2014), para. 66.

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GE.26-05471

detention violated his rights under article 9 (1) of the Covenant. In the light of that finding,

the Committee decides not to examine the author’s claim under article 9 (4) of the Covenant.

8.6

The Committee notes the author’s claim under article 9 (2) of the Covenant, which

imposes two requirements for the benefit of persons who are arrested. First, they shall be

informed, at the time of arrest, of the reasons for the arrest. Second, they shall be promptly

informed of any charges against them.30 The Committee notes the State Party’s assertion that,

following the author’s apprehension on 17 October 2017, he was immediately informed of

the reasons for his detention by means of a form which set forth his rights. According to that

form, which the author appears to have signed on that same date, he was: (a) suspected of

unspecified offences related to the Fetullah terrorist organization; (b) could be the subject of

investigation for other offences; (c) had the right to a defence counsel; and (d) understood his

rights. The Committee recalls that the reasons for arrest must include not only the general

legal basis of the arrest, but also enough factual specifics to indicate the substance of the

complaint, such as the wrongful act and the identity of an alleged victim.31 In the author’s

case, no factual specifics were provided. Moreover, the material before the Committee does

not indicate that the author was made aware of the specific charge against him, namely,

membership of the Fetullah terrorist organization, before 24 October 2017. The Committee

considers that a period of seven days does not meet the criterion of prompt notification of

charges. In those circumstances, the Committee considers that the facts before it disclose a

violation of article 9 (2) of the Covenant.

8.7

The Committee notes the author’s claim that he was only brought before a judge seven

days after he was taken into custody. Article 9 (3) of the Covenant requires, in all cases and

without exception, that any person arrested or detained on a criminal charge be brought

promptly before a judge or other officer authorized by law to exercise judicial power.32 While

the exact meaning of “promptly” may vary, delays should not exceed a few days from the

time of arrest.33 The Committee notes the State Party’s information that the seven-day period

before the author was brought before a judge complied with the domestic law that applied

during the state of emergency (Decree Law No. 684). The Committee recalls that any delay

longer than 48 hours must remain absolutely exceptional and be justified under the

circumstances.34 The Committee notes the State Party’s position that the extended period of

seven days was not only lawful but also necessary and proportionate, considering the

exigencies of the situation, the large number of suspects, a terrorist threat against the nation

and the increased workload of judicial authorities. However, the Committee notes the

author’s undisputed allegation that two days after his arrest, on 19 October 2017, he was

denied the possibility to appoint and have access to a lawyer. Under those circumstances, the

Committee considers that, although the seven-day period of initial detention may have been

lawful at the time, it was unreasonable and thus cannot be considered as strictly required by

the exigencies of the situation. Accordingly, the facts before the Committee disclose a

violation of the author’s rights under article 9 (3) of the Covenant.

9.

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 (1)–(3) 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

30 General comment No. 35 (2014), para. 24.

31 Ibid., para. 25.

32 Ibid., para. 32.

33 Ibid., para. 33.

34 Ibid.; and Özçelik et al. v. Turkey, para. 9.6.

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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 language of the State Party.

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GE.26-05471

Annex

Individual opinion of Committee member Hélène Tigroudja

(concurring)

1.

I agree with the conclusion reached by the Committee regarding the violation of

several provisions of article 9 of the Covenant in the present case. In particular, the

Committee rightly stressed that, although article 9 is not formally listed as a non-derogable

right under article 4 of the Covenant, the State cannot misuse the counter-terrorism narrative

to arbitrarily deprived individuals of their liberty. In this regard, I refer to my concurring

individual opinion on the Views adopted by the Committee at the same session concerning

communication No. 3697/2020 and to all the references therein to the Committee’s and the

European Court’s jurisprudence against Türkiye.1

2.

In the present case, I would like to address an important procedural point mentioned

in paragraph 7.4 of the Committee’s Views, which relates to the contradictory information

provided by the author throughout the proceeding before the Committee. Contrary to the case

mentioned in the previous paragraph, where the author “omitted” to share that he lodged an

application before the European Court after he submitted his case to the Committee – which

already raises serious concerns in terms of candid procedural behaviour – in the present case,

the author sent “contradictory” and “incorrect” information on an important procedural

question related to the exhaustion of domestic remedies. In this regard, the Committee went

a bit further than in its Views concerning communication No. 3697/2020 and recalled the

“good faith” principle applicable to the authors of individual communications.

3.

However, the Committee does not clearly draw the legal consequences of this lack of

procedural good faith from the author, as it did in previous cases, including by rejecting the

complaint for abuse of the right under article 3 of the Optional Protocol.2 Indeed, it is not the

first time the Committee is confronted with this type of procedural behaviour by the authors,

and the rejection of an individual complaint for abuse of that right should not be taken lightly

by the Committee.3 Nevertheless, the parties have procedural duties. For instance, as stated

by the Committee in its general comment No. 33 (2008), under article 1 of the Optional

Protocol, “States Parties are obliged not to hinder access to the Committee and must prevent

any retaliatory measures against any person who has submitted a communication to the

Committee” (para. 4). Moreover, article 4 of the Optional Protocol obliges the State Party to

respond to the Committee, and therefore to cooperate in the clarification of the facts and the

establishment of the legal truth.

4.

While the litigation before the Committee is unbalanced – the position of an author

vis-à-vis access to proof cannot be compared to the power of the State Party – the author is

not exempted from duties, and in particular, the duty to act with diligence, candidly and to

bring to the Committee reliable, credible and correct information. It is not only a matter of

respect for the adjudication body. It is also instrumental for the manifestation of the truth and

the quality of the justice as this outcome of the adjudication process. Without actors – either

the States Parties or the authors – using the international mechanism in an appropriate way,

the Committee (or any other adjudication body) cannot work properly.

5.

In the present case, the Committee decided to overlook this bad procedural behaviour

of the author and took into consideration that ultimately, the domestic tribunals did not offer

an effective remedy to the author. Considering the gravity of the violations of several aspects

of article 9, the solution reached by the Committee may be understood in light of the

circumstances of the case. However, in order to discourage and prevent the repetition of such

procedural shortcomings, it will be important for the Committee to adopt a clear stance on

1 Akdoğan v. Türkiye (CCPR/C/145/D/3697/2020), annex III.

2 J.A.N.C. v. Colombia (CCPR/C/129/D/2922/2016), para. 7.4.

3 On the strict and narrow interpretation of the procedural abuse of right by regional and universal

human rights bodies, see Ludovic Hennebel and Hélène Tigroudja, International Human Rights Law:

A Treatise (Cambridge University Press, 2025), pp. 358–361.

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the definition of abuse of the right under article 3 of the Optional Protocol, and its legal

consequences on the admissibility and the merits of the complaint.