A/HRC/WGAD/2013/6

GE.13-15912

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its sixty-sixth session, 29 April-3 May 2013

No. 6/2013 (Turkey)

Communication addressed to the Government on 12 September 2012.

Concerning 250 detained defendants in the Balyoz or “Sledgehammer”

cases

The Government replied to the communication on 17 December 2012.

The State is a party to the International Covenant on Civil and Political Rights.

1.

The Working Group on Arbitrary Detention was established in resolution 1991/42

of the former Commission on Human Rights, which extended and clarified the Working

Group’s mandate in its resolution 1997/50. The Human Rights Council assumed the

mandate in its decision 2006/102 and extended it for a three-year period in its resolution

15/18 of 30 September 2010. In accordance with its methods of work (A/HRC/16/47,

annex, and Corr.1), the Working Group transmitted the above-mentioned communication to

the Government.

2.

The Working Group regards deprivation of liberty as arbitrary in the following

cases:

(a) When it is clearly impossible to invoke any legal basis for the deprivation of liberty

(as when a person is kept in detention after the completion of his or her sentence or

despite an amnesty law applicable to the detainee) (category I);

(b) When the deprivation of liberty results from the exercise of the rights or freedoms

guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of

Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22,

25, 26 and 27 of the International Covenant on Civil and Political Rights (category II);

(c) When the total or partial non-observance of the international norms relating to the

right to a fair trial, established in the Universal Declaration of Human Rights and in the

relevant international instruments accepted by the States concerned, is of such gravity as

to give the deprivation of liberty an arbitrary character (category III);

United Nations

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General Assembly

Distr.: General

26 July 2013

Original: English

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(d) When asylum seekers, immigrants or refugees are subjected to prolonged

administrative custody without the possibility of administrative or judicial review or

remedy (category IV);

(e) When the deprivation of liberty constitutes a violation of international law for

reasons of discrimination based on birth; national, ethnic or social origin; language;

religion; economic condition; political or other opinion; gender; sexual orientation; or

disability or other status, and which aims towards or can result in ignoring the equality

of human rights (category V).

Submissions

Communication from the source

3.

The information was submitted to the Working Group on Arbitrary Detention as

follows. According to the source, 250 defendants were detained in the Republic of Turkey

in connection with the “Sledgehammer” Trial. The following list of detained

“Sledgehammer” defendants was submitted to the Working Group:

Indictment I (163 detained defendants):

Abdullah Dalay, Abdullah Gavremoğlu, Abdurrahman Başbuğ, Ahmet Feyyaz Öğütcü,

Ahmet Küçükşahin, Ahmet Necdet Doluel, Ahmet Şentürk, Ahmet Topdağı, Ahmet

Tuncer, Ahmet Türkmen, Ahmet Yavuz, Ali Aydın, Ali Demir, Ali Deniz Kutluk, Ali

İhsan Çuhadaroğlu, Ali Rıza Sözen, Ali Semih Çetin, Ali Türkşen, Ayhan Gedik,

Ayhan Taş, Aytekin Candemir, Bahtiyar Ersay, Barbaros Kasar, Behcet Alper Güney,

Behzat Balta, Bekir Memiş, Bora Serdar, Bülent Ömer Mirmiroğlu, Bülent Tunçay,

Burhan Gögce, Cem Aziz Çakmak, Cemal Candan, Cemal Temizöz, Cemalettin

Bozdağ, Cengiz Köylü, Çetin Doğan, Doğan Fatih Küçük, Doğan Temel, Dora

Sungunay, Dursun Çiçek, Dursun Tolga Kaplama, Emin Küçükkılıç, Engin Alan, Engin

Baykal, Ercan İrençin, Erdal Akyazan, Erdinç Atik, Ergin Saygun, Ergün Balaban,

Erhan Kuranaer, Ertuğrul Uçar, Faruk Doğan, Faruk Oktay Memioğlu, Fatih Altun,

Fatih Musa Çınar, Fatih Uluç Yeğin, Fuat Pakdil, Gökhan Çiloğlu, Gökhan Gökay,

Gökhan Murat Üstündağ, Gürbüz Kaya, Hakan Akkoç, Hakan İsmail Çelikcan, Hakan

Sargın, Halil Helvacıoğlu, Halil İbrahim Fırtına, Halil Kalkanlı, Halil Yıldız, Hamdi

Poyraz, Hanifi Yıldırım, Harun Özdemir, Hasan Basri Aslan, Hasan Fehmi Canan,

Hasan Gülkaya, Hasan Hakan Dereli, Hasan Hoşgit, Hasan Nurgören, Hayri Güner,

Hüseyin Hoşgit, Hüseyin Özçoban, Hüseyin Polatsoy, Hüseyin Topuz, İbrahim Koray

Özyurt, İhsan Balabanlı, İkrami Özturan, İlkay Nerat, İsmet Kışla, İzzet Ocak, Kadir

Sağdıç, Kahraman Dikmen, Kasım Erdem, Kemal Dinçer, Kıvanç Kırmacı, Kubilay

Aktaş, Levent Çehreli, Levent Erkek, Levent Görgeç, Lütfü Sancar, Meftun Hıraca,

Mehmet Alper Şengezer, Mehmet Fatih İlğar, Mehmet Ferhat Çolphan, Mehmet Fikri

Karadağ, Mehmet KayaVarol, Mehmet Kemal Gönüldaş, Mehmet Otuzbiroğlu, Mehmet

Ulutaş, Mehmet Yoleri, Memiş Yüksel Yalçın, Metin Yavuz Yalçın, Mücahit Erakyol,

Muharrem Nuri Alacalı, Mümtaz Can, Murat Ataç, Murat Özçelik, Mustafa Aydın

Gürül, Mustafa Çalış, Mustafa Erdal Hamzaoğulları, Mustafa Karasabun, Mustafa

Kemal Tutkun, Mustafa Koç, Mustafa Korkut Özarslan, Mustafa Önsel, Mustafa

Yuvanç, Namık Koç, Nedim Ulusan, Nejat Bek, Nihat Altunbulak, Nihat Özkan,

Nurettin Işık, Nuri Ali Karababa, Orkun Gökalp, Özden Örnek, Özer Karabulut,

Ramazan Cem Gürdeniz, Recai Elmas, Recep Rıfkı Durusoy, Recep Yıldız, Refik

Hakan Tufan, Şafak Duruer, Salim Erkal Bektaş, Sırrı Yılmaz, Soner Polat, Soydan

Görgülü, Suat Aytın, Süha Tanyeri, Şükrü Sarıışık, Taner Balkış, Taner Gül, Tayfun

Duman, Taylan Çakır, Tuncay Çakan, Turgay Erdağ, Utku Arslan, Veli Murat Tulga,

Yaşar Barbaros Büyüksağnak, Yüksel Gürcan, Yunus Nadi Erkut, Yurdaer Olcan,

Yusuf Kelleli, Yusuf Ziya Toker, Zafer Karataş

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Indictment II (23 detained defendants):

Ahmet Erdem, Ahmet Dikmen, Ahmet Sinan Ertuğrul, Ahmet Zeki Üçok, Ayhan

Üstbaş, Beyazıt Karataş, Bilgin Balanlı, Bülent Günçal, Bülent Kocabuç, Hakan Büyük,

Halit Nejat Akgüner, İsmail Taş, Mehmet Örgen, Mehmet Erkorkmaz, Mehmet Eldem,

Mustafa Erhan Pamuk, Nedim Güngör Kurubaş, Onur Uluocak, Rafet Oktar, Refik

Levent Tezcan, Servet Bilgin, Sinan Topuz, Turgut Atman

Indictment III (64 detained defendants):

Abdullah Can Erenoğlu, Abdullah Cüneyt Küsmez, Ahmet Hacıoğlu, Ahmet Bertan

Nogalylaroğlu, Ali Sadi Ünsal, Ali Yasin Türker, Alpay Çarkarcan, Aydın Sezenoğlu,

Aziz Yılmaz, Bahadır Mustafa Kayalı, Berker Emre Tok, Bülent Olcay, Bülent Akalın,

Can Bolat, Celal Kerem Eren, Cenk Hatunoğlu, Davut İsmet Çınkı, Deniz Cora, Derya

Günergin, Derya Ön, Ender Kahya, Ender Güngör, Erdem Caner Bener, Erhan Şensoy,

Erhan Kubat, Fahri Can Yıldırım, Fikret Güneş, Gürsel Çaypınar, Hakan Mehmet

Köktürk, Hasan Özyurt, Haydar Mücahit Şişlioğlu, Hüseyin Çınar, İbrahim Özdem

Koçer, İsmail Taylan, Kadri Sonay Akpolat, Kemalettin Yakar, Korcan Pulatsü,

Kubilay Baloğlu, Levent Kerim Uça, Mehmet Baybars Küçükatay, Mehmet Cem

Okyay, Mehmet Koray Eryaşa, Murat Ünlü, Murat Özenalp, Murat Saka, Mustafa İlhan,

Mustafa Haluk Baybaş, Nadir Hakan Eraydın, Necdet Tunç Sözen, Nuri Selçuk Güneri,

Oğuz Türksoyu, Osman Kayalar, Ömer Faruk Ağa Yarman, Önder Çelebi, Rasim

Arslan, Rıdvan Ulugüler, Sami Yüksel, Serdar Okan Kırçiçek, Süleyman Namık

Kurşuncu, Şafak Yürekli, Ümit Metin, Yalçın Ergül, Zafer Erdim İnal, Ziya Güler

4.

According to the source, on 21 January 2010 a Turkish newspaper broke the story of

a 2003 military coup plot to overthrow the Government. Earlier that month, an anonymous

individual had delivered three DVDs and a CD containing incriminating evidence to

Mehmet Baransu, a reporter. The plot allegedly encompassed detailed preparations for the

coup and plans to “provoke tensions with a third country, in order to spark political chaos

and justify a military takeover.” The plans included the bombing of various mosques, the

takeover of hospitals and pharmacies, the downing of a Turkish fighter jet in a false-flag

operation, the shutting down of non-governmental organizations, the arrest of various

journalists and politicians, and the appointment of a cabinet.

5.

The material delivered by the informant also included voice recordings and

documents on discs linked with a military seminar held from 5 to 7 March 2003. During the

seminar, 162 military officers took part in a series of workshops designed to test the

military’s readiness under extreme scenarios. The content of the seminar was set out on

PowerPoint slides and the workshops were recorded at the order of the commander of the

First Army, General Çetin Doğan, who led the seminar. The officers were reportedly given

various hypothetical situations of turmoil and domestic disturbance, and were to strategize

how best to address such situations. Over subsequent weeks, more details about the alleged

coup plan surfaced as Taraf and other newspapers serialized the contents of many of the

alleged coup plot documents.

6.

According to the source, a total of three indictments charged 365 individuals with

involvement in the alleged “Sledgehammer” Coup Plot to overthrow the Government. The

source reports that the primary evidence forming the basis for these indictments is the

“Sledgehammer Security Action Plan” and other documents describing the alleged coup

plan and related operations, all of which are unsigned digital documents that have not been

authenticated by the Turkish Court or successfully traced to military computers. According

to the source, prosecution and defence agree that the recordings of the March 2003 military

seminar are authentic.

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7.

The first indictment, against 195 individuals, was reportedly issued on 6 July 2010

after the first wave of arrests on 11 February. Sixty-three of these individuals have been

detained since their arrests. According to the source, the indictment alleges that the

defendants planned a series of activities and operations designed to destabilize the country,

with the eventual aim of overthrowing the elected government and replacing it with a

cabinet of their choosing. According to the indictment, the military seminar held from 5 to

7 March 2003 was a dress rehearsal for the “Sledgehammer” coup. The indictment states

that evidence “suggests that all the suspects have committed the crime of attempting to

overturn the Turkish Government by force, and should be PENALIZED according to the

TCK (Turkish Criminal Code) Law no/ 765 Articles 147, 61/1, 31, 33, 40.”

8.

In a second wave of arrests in May and at the beginning of June 2011, 15 additional

individuals were reportedly jailed. In a second indictment 28 individuals were charged and

arrest warrants issued for 8 of the non-detained defendants.

9.

According to the information received, the third wave of arrests took place between

the end of June and September 2011, during which 64 arrests were made. The third

indictment reportedly charged 143 individuals with attempting to overthrow the

Government.

10.

Prior to the trial, 17 generals and admirals in line for promotion were reportedly

jailed in September 2010 in connection with the “Sledgehammer” investigations. In July

2011, 22 military commanders, including several generals and officers, were charged with

carrying out an Internet campaign to undermine the Government, in connection with the

“Sledgehammer” controversy.

11.

On 29 July 2011, in response to these mass arrests and in protest against what they

viewed as the unjust imprisonment of their colleagues, the Chief of the Armed Forces along

with the heads of the Army, Navy and Air Force reportedly resigned.

12.

According to the information received, the “Sledgehammer” trial began on 16

December 2010, at the Istanbul 10th High Criminal Court, with 365 defendants. Three

hundred and sixty-three were serving or retired military officers and two were civilians.

Prosecutors have reportedly requested 15- to 20-year sentences for the serving and retired

officers.

13.

According to the source, the defendants did not have access to any of the documents

allegedly implicating them during the investigation, though some documents were briefly

shown to suspects during their interrogation. The defendants did not have access to these

documents until after 19 July 2010, the date that the first indictment was accepted by the

Court. They were then reproduced in digital form so that no forensic examination could be

conducted to verify the files’ authenticity. The defence was reportedly not provided with

access to the forensic images of the CDs until 18 months after the Court received the

evidence. The Court had denied access to the CDs on the grounds that there were a

sufficient number of expert reports in the file and no further analyses were needed.

14.

Once granted access, several independent experts forensically analyzed the

documents on behalf of the defence. According to the defence, they contained numerous

anachronisms, inconsistencies and errors, suggesting the incriminating documents had been

forged and used to frame the defendants.

15.

According to the source, the Court repeatedly denied defence requests to reconsider

the prosecution’s claims and appoint an independent expert to verify the evidence, as well

as repeated defence requests to call two key witnesses, former Commander of Land Forces,

General Aytaç Yalman, and former Chief of General Staff, General Hilmi Özkök. The

indictment reportedly claims that General Yalman prevented the alleged coup, while media

reports have often pointed to General Özkök as having halted the alleged coup preparations.

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As the two most senior military officers at the time, both are in a position to clarify the role

of the seminar of 5 to 7 March 2003. Neither was questioned by prosecutors. The Court

reportedly considered that their testimony would be “unnecessary”.

16.

On 15 June 2012, defence attorneys reportedly staged a walkout in protest at

unfairness in the legal proceedings, the Court’s refusal to grant requests for independent

fact-finding and forensic analyses presented by the defence, and its refusal to appoint an

independent expert to examine the alleged electronic evidence. On 16 April 2012, the

defence lawyers filed a complaint with the Supreme Board of Judges and Prosecutors

(HSYK) against the prosecutors in the case, claiming that their right to defence and a fair

trial had been violated.

17.

The source reports that on 4 August 2012, the Turkish Supreme Military Council,

led by the Prime Minister, forcibly retired 40 generals and admirals, 34 of whom are on

trial in this case.

18.

The trial resumed on 6 August 2012. According to the source, given the retirement

of the 34 generals and admirals on 4 August, there was hope among the relatives of the

defendants that the judges would allow them to be released from custody for the remaining

duration of the trial. However the Court ruled that the detentions would continue. The

Court also ruled that the trial would resume without the presence of the defence lawyers at

the subsequent sessions in August and September, even though Turkish law requires

defence lawyers to be present. One defence lawyer, on behalf of all the other defence

lawyers, submitted a letter to the judges summarizing the violations of due process in the

trial. He was reportedly not allowed to address the court and walked out of the courtroom in

protest.

19.

Based upon complaints from the judges, new indictments have reportedly been

issued against a number of the defendants for statements they made during the trial. The

source cites the following two examples as illustrative. Ahmet Zeki Ucok was indicted on

29 February 2012 under the Turkish Criminal Code for allegedly “openly insulting” the

three judges presiding in the Court. The indictment reportedly cites the following two

statements made by Mr. Ucok during his defence on 10 November 2011, “These [are]

extra-legal approaches to the law of the…courthouse, which sees itself above the Turkish

judiciary…” “There exists no other court in any country of the world that so cruelly

violates the rights and the freedom of the soldiers of its own army with unfounded charges

based on fraudulent documents.”

20.

In addition, Çetin Doğan was indicted on 26 June 2012 for allegedly insulting public

officials (Istanbul Counter-Terrorism Branch police officers) during his defence in court.

The indictment reportedly cites the following statement made by Doğan, “The Counter-

Terrorism Branch has turned into the branch for producing terror. We have said that this

branch, which has prepared and produced the reports that form the basis of the indictments,

has distorted the facts by claiming a document from the Ankara Police Department had

come from the associations branch, and we filed a complaint about it…”.

21.

The source contends that the current detention of the defendants results from the

deprivation of, in particular, their due process rights under Turkish law, the International

Covenant on Civil and Political Rights, the Universal Declaration of Human Rights, and the

United Nations Body of Principles for the Protection of All Persons under Any Form of

Detention or Imprisonment.

22.

The source further contends that the recent forced retirement of the 34 officers

violates the presumption of innocence and indicates that the outcome of the trial has been

predetermined.

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23.

The source points out that Turkish law requires prosecutors to collect and present

evidence that is both inculpatory and exculpatory, and contends that the prosecutors have

not presented evidence favourable to the defence and even taken steps to hide evidence

from the defence.

24.

The source also contends that the Court has not independently assessed the evidence

submitted by the prosecution, and not allowed evidence by the defence on its veracity.

25.

The source further contends that the detention of the defendants is disproportionate.

At the time of the source’s first submission on 7 September 2012, 163 defendants from the

first indictment had been detained for up to 31 months, and 87 defendants from the second

and third indictments had been detained for up to 27 months. According to the source,

neither the Court nor the prosecution offered evidence suggesting that the defendants

presented a potential flight risk or that they could be involved in the any further crimes. The

Court refused the defence lawyers’ request to address the prosecution’s demand for

continued detention.

26.

The source points to the implementation of article 14, paragraph 3 (c), of the

Covenant in the Turkish Criminal Procedure Code and Constitution, which requires courts

to render written decisions on the continued detention of defendants in lieu of releasing

them on bail. Under article 108 of the Turkish Criminal Procedure Code, such decisions

must be issued monthly and contain legal and factual grounds for detention. The decisions

affirming continued detention invoke generic pronouncements that the detention was

necessary owing to, for example, “the nature of the charges” or “the continued presence of

strong suspicion of criminal activity.” The source contends that these statements are vague

and overly broad.

27.

The source also contends that on 13 June 2011, shortly before the second indictment

was accepted, the Court placed microphones on the ceiling to record all conversations,

including those between the defence attorneys and their clients, preventing confidential

communication between them.

Response from the Government

28.

The communication was sent to the Government of Turkey on 12 September 2012.

The Government filed a request for extension of the deadline to respond on 14 November

2012 and this was granted by the Working Group at its sixty-fifth session in November

2012, in light of the complexity of the case.

29.

On 17 December 2012, the Government replied to the communication. The

Government informs the Working Group that a judicial first instance judgment was handed

down on 21 September 2012 and that this is subject to appeal.

30.

At the outset, the Government reminds the Working Group that some of the

claimants have submitted their cases and similar petitions to the European Court of Human

Rights. The cases before the Court and the Working Group are identical or parallel in

relation to many issues. The Government informs the Working Group of decision n°

28484/10 of 10 April 2012 of the Court in the case of Çetin Doğan. It requires that the case

before the Working Group be deemed inadmissible on this ground. The Government also

submits that the case is inadmissible as domestic remedies have not been exhausted. In

addition, the Government points to its new internal procedure for individuals who claim

that their fundamental human rights have been violated.

31.

The Government then turns to the events leading to the opening of the investigations

in the trial of the Balyoz or “Sledgehammer” cases. In its edition of 22 January 2010, the

Taraf newspaper published information regarding a planned military coup d’état inside the

command of the first army of Istanbul, shortly after the rise to power of the AKP political

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party (Party for Justice and Development) in late 2002 and early 2003. Further to the

publication and the dissemination of the information in the press and the submission of

evidence and other material (CDs, documents) to the Istanbul prosecutor’s office, the

Prosecutor of the Republic decided to open a criminal case.

32.

According to the indictment, from 5 to 7 March 2003, under the orders of one of the

applicants, Çetin Doğan, an army general and chief commander of the first battalion in

Istanbul during this period of events, a generic “worst case scenario” plan was negotiated.

The Government reports that the chief commander of the terrestrial forces at that time

stated in an interview given on 2 September 2012 in the Hurriyet daily newspaper that the

seminar given took place against his orders. During the course of the seminar, the

conversations relating to this plan were recorded by order of the general. The Government

reports that the tapes concerned as well as the other evidence were submitted to the

prosecutor’s office.

33.

According to the Government’s reply, on 26 January 2010, pursuant to article 153 of

the Code of Criminal Procedure, the 11th Istanbul Assize Court ordered the restriction of

access to the investigation file with respect to the particularity and the characteristics of the

investigation, the persons against whom the investigation was being conducted and the

presence of documents relating to State security and documents containing personal

information about hundreds of people. In addition, on 23 February 2010, pursuant to article

10 of the Law on the fight against terrorism, the 10th Assize Court made another decision

to limit access to the investigation file in order to prevent a breach of the confidentiality of

the investigation.

34.

The Government reports that on 6 July 2010 the prosecutor presented an indictment

against 196 accused persons in total. On 19 July 2010, the 10th Appeal Court declared the

indictment admissible.

35.

Following an e-mail tip-off on 6 December 2010, a search was carried out by the

intelligence service in a raid on the General Directorate at the Gölcük Fleet Command. The

Government reports that a large amount of digital evidence was found hidden under the

floorboards, including several operation plans and documents containing information

obtained unlawfully by certain members of the police force. Some of these documents

tended to confirm evidence obtained previously.

36.

On the basis of evidence obtained during these searches, several statements were

obtained and, on 11 November 2010, the Public Prosecutor of Istanbul prepared a second

indictment against 143 defendants in total. On 23 November 2011, the competent court

declared that the indictment was admissible. On 29 December 2011, a decision was

rendered to consolidate this with the Balyoz case in view of the close connection in law and

in fact between the two matters.

37.

According to the Government’s reply, a further e-mail tip-off dated 19 February

2011 was sent to the Directorate of Security of Istanbul. A search was carried out on 21

February 2011, at the Eskihesir residence of a retired intelligence service colonel. On 16

June 2011, on the basis of evidence obtained during the searches, the Public Prosecutor of

Istanbul prepared a new indictment against a total of 28 defendants. On 28 June 2011, the

indictment was declared admissible. On 3 October 2011, in view of the close connection in

law and in fact between the two matters, a decision to consolidate this with the Balyoz case

was rendered.

38.

According to the Government’s reply, the principal accusation made by the Public

Prosecutor is that the defendants had prepared a coup d’état in five stages under the

direction of General Çetin Doğan, aimed at overthrowing the Government. According to

the Public Prosecutor, the first stage involved information activities. The names of

hundreds of public servants (prefects, under-prefects, judges, prosecutors, burgomasters and

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bureaucrats) were filed according to various criteria. In the second stage, it was planned to

prepare the terrain for the military intervention. The third stage involved proclamation of

military law and de facto military intervention and the overthrow of the Government. The

fourth stage was to establish a national unity Government and the fifth was the planning of

elections, to transfer executive authority back to civilians.

39.

The Government reports that the Public Prosecutor demanded sentences of 15 to 20

years’ imprisonment. The number of defendants charged and sentenced in the Balyoz affair

was 365, of whom 250 were in detention awaiting trial.

40.

The Government based its presentation of the case on the decision of the European

Court of Human Rights, Çetin Doğan v. Turkey (n.28484/10, April 10th, 2012, §§ 9-17).

The first hearing of the Balyoz case took place on 16 December 2010. Since then and until

21 September 2012 (when the ruling of the first hearing was given), 108 hearings had taken

place. On 21 September 2012, following the announcement of the ruling of the first hearing

at the end of the hearing, 327 defendants in the case were sentenced to between six and 20

years’ imprisonment; the competent court decided to end the procedure for two of the

defendants and to acquit 37 others. The competent court ordered the cases of the three

remaining defendants to be dismissed.

41.

At the time of the Government’s reply to the Working Group, the full judgment with

reasons had not yet been delivered. The Government reported that several defendants had

stated that they would appeal.

42.

The Government informs the Working Group that the defendants were placed under

police custody and in detention awaiting trial on different dates. The 10th Circuit Court of

Istanbul decided to place certain defendants in pretrial detention and to deliver arrest

warrants for the defendants who had been absent from the hearing. In order to do this, the

Court acted on the basis of evidence in the investigation file on the occurrence of events

giving rise to serious suspicions concerning the commission of the offences in question; on

the fact that not all of the evidence had been fully obtained; on the possibility that the

defendants could be exercising a certain influence on witnesses; and on the fact that some

witnesses had not yet taken the stand. It also acted on the basis of the fact that the offence

of which the defendants were accused was among those cited in article 100 of the Turkish

Criminal Procedure Act (CPP) and that the application of the relevant stipulations to the

judicial review would therefore be insufficient, in light of the reasons mentioned above.

43.

According to the Government’s reply, the defendants who were not charged in the

first indictment, were placed under pretrial detention either during the penal investigation

stage conducted by the Public Prosecutor, or following the ordinance of admissibility of the

second and third indictments. Within this context, the evidence collected during the search

conducted in the Eskisehir residence of the retired intelligence service colonel and of the

commander of the Gölcük Fleet was taken into consideration. During the defendants’

pretrial detention, their detention conditions were examined at regular intervals in

application of article 108 of the CPP and it was decided that the interested parties’ detention

be continued.

44.

Pursuant to articles 100, 101, 104 and 10 of the CPP, the defendants were able to

challenge by appeal the detention rulings. However their challenges were rejected by the

appellate courts.

45.

The Government notes that the petitioners have complained that the national

authorities have acted against the principles protected by articles 5, 9 and 10 of the

Universal Declaration of Human Rights and articles 9 and 14 of the Covenant. The

Government also notes that the applicants were deprived of their liberty after the opening of

a criminal investigation against them. At the time of the submission of their communication

to the Working Group, no ruling had been made against the applicants. Therefore, at the

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time of the submission, the applicants were not being held under a final judgment of

conviction, and they were not serving custodial sentences imposed on them. In its reply, the

Government informs the Working Group that criminal proceedings against the applicants

are pending before the Supreme Court and no final judgment has been rendered at the

current time in relation to them.

46.

The Government acknowledges that detention after trial may fall within the mandate

of the Working Group on Arbitrary Detention, if a custodial sentence was imposed

following a trial in which the fundamental guarantees of the right to a fair trial have not

been met. In this regard, the Government notes that the applicants brought their complaints

to the Working Group before the delivery of the first instance judgment of conviction of 21

September 2012. Given that the judgment in question was not final at this time, the

Government emphasizes that the applicants’ complaint cannot be considered as a claim

related to deprivation of liberty after a final judgment. Accordingly, the claims in question

cannot be examined in the same way as complaints concerning the phase before and during

the trial and consequently fall only within the scope of article 5 of the European Convention

on Human Rights and article 9 of the Covenant.

47.

Moreover, according to the Government, the Working Group considers that it is not

within its mandate to declare a deprivation of liberty “unfair” or “unjust”, or to comment on

the value of the evidence produced during trial. The Government notes that it is not for the

Working Group to evaluate the facts and evidence in the case, nor is it a substitute for

national courts of appeal.

48.

The Government addresses the applicants’ express challenges to the evidence upon

which the courts have relied to order their temporary or provisional detention. The

Government reiterates that it is up to the national judges to appreciate in an independent

manner the value of the evidence and the investigation. The Government notes that it is

obvious that nobody could be really sure about the value of the evidence until the end of the

trial and the judicial process.

49.

Notwithstanding the fact that the Government is of the view that the Working Group

is not competent to assess the complaints relating to an alleged violation of the right to a

fair trial, the Government considers it useful to specify that all the fundamental guarantees

of the right to a fair trial, under international instruments ratified by Turkey (in this case

article 6 of the European Convention on Human Rights and article 14 of the Covenant)

have been met in this case.

50.

According to the Government’s reply, the deprivation of liberty is permitted with the

purpose of bringing the person concerned before a competent judicial authority. The

deprivation of liberty can only be justified if there are plausible reasons to suspect a person

of having committed an offence, and in this respect the Government is of the opinion that

the circumstances hereof justify the measure of deprivation of liberty as well as the

methods used. The provisional detention of the defendants was justified in this case, under

the international instruments ratified by Turkey and the detention cannot be considered

arbitrary.

51.

The Government considers that, when taking into consideration the evidence, the

established facts detailed above, the nature of the offence in question and the sociopolitical

context in Turkey over the last 50 years, it is reasonable to conclude that plausible reasons

existed to suspect that the petitioners committed the offence. However, given the fact that

the matter is still pending before the national appellate jurisdiction (Supreme Court) the

Government once again deems it useful to note that it respects the presumption of

innocence of the petitioners and accords primary importance to this principle.

52.

Concerning the petitioners’ claim that the criminal process and trial against them is

in fact a political trial, the Government considers that it is impossible to accept such a

A/HRC/WGAD/2013/6

10

consideration and firmly denies this allegation. The Governments wonders if the petitioners

have submitted to the Working Group any evidence in support of this allegation. In fact, the

trial in question is being heard by an independent and impartial court, established by law

and satisfying all the requirements for a court within the meaning of article 6 of the

European Convention on Human Rights and article 14 of the Covenant. It relies on concrete

facts and evidence, the examination of which is the responsibility of the lower courts.

53.

The Government states that all petitioners in this matter were informed of the

reasons for the deprivation of their liberty, within the shortest time limits required by the

international instruments ratified by Turkey (article 5, paragraph 2, of the European

Convention on Human Rights and article 9, paragraph 2, of the Covenant). Therefore the

petitioners cannot allege that their deprivation of liberty is arbitrary.

54.

With regard to the petitioners’ allegation that the duration of their provisional

detention is excessive, the Government notes that some petitioners have remained in

pretrial detention for up to 23 months, and others up to 19 months or 15 months. The

Government refers to the jurisprudence of the European Court of Human Rights in this

respect. In view of the standards established at the international level and in light of the

circumstances of this case, the nature of the alleged offence and in particular of the fact that

organized crime was involved, the large number of defendants and the considerable

evidence, the fact that it is confronted by a very complex matter and that the national

authorities accorded sufficient attention and considerable diligence to this case, the

Government considers that the said duration of detention cannot be considered to be

unreasonable or arbitrary.

55.

In its reply, the Government refers to article 5, paragraph 4, of the European

Convention on Human Rights and article 9, paragraph 4, of the Covenant, which provide

that anyone who is deprived of his liberty by arrest or detention shall be entitled to take

proceedings before a court, in order that that court may decide without delay on the

lawfulness of his detention and order his release if the detention is not lawful. The

Government notes that the petitioners have in particular contested the restriction of access

to all the evidence and material in the file at the examination stage.

56.

In this regard, the Government considers that it is worth noting that the applicants

had the opportunity to object to the orders of their placement and their continued detention.

They also benefited from the assistance of a lawyer of their choice for the appeal

proceedings. Requests for extension and appeal were also examined by independent and

impartial courts as quickly as possible.

57.

The Government emphasizes the need to preserve the confidentiality of statements

in criminal proceedings. Giving the right of access to all the case documents from the initial

phase would have had the effect of lifting the confidentiality of the investigation and

jeopardizing the objective. It would lead to difficulties for States in their fight against

organized crime in particular. Moreover, the Government considers that the restrictions on

access to all the elements in the case were legitimate under international human rights

instruments and in particular under the European Convention on Human Rights. The court

dealing with the case based its decision on the restrictions on the fact that the investigation

file contained a large number of documents relating to the privacy of certain persons, that

this was required for the proper conduct of the investigation and that it contained

confidential documents concerning national security. Thus the competent court took into

account the right to privacy, the requirements for the efficient conduct of the investigation

and national security. Finally, the fact that the petitioners were made aware of evidence of

primary importance allowing them to appreciate the lawfulness of their arrest, and that the

European Court of Human Rights case law does not impose the right of access by a suspect

or by his lawyer to all evidence and material in the file at the initial phase of an

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11

investigation, leads the Government to consider that the grievance of the petitioners based

on the restriction of access to the evidence has no foundation.

58.

Finally, the Government refers to article 5, paragraph 5, of the European Convention

on Human Rights and article 9, paragraph 5, of the Covenant, which provide that anyone

who has been the victim of unlawful arrest or detention shall have an enforceable right to

compensation. In this respect, the Government considers that the petitioners were not

deprived of their liberty unlawfully and that they have not exhausted all domestic legal

recourses, in particular individual recourse before the Turkish Constitutional Court.

Consequently, they have not given the national authorities the opportunity to rule on the

question and they cannot allege any violation of this right before any international authority

in view of the well-established principle of customary international law.

59.

In conclusion, given the foregoing reasons, the Government considers that all

requirements of the right to liberty and security were met in this case and, on the basis of

the facts, there was no arbitrary detention.

Further comments from the source

60.

The source submitted its additional comments on 11 April 2013. It informs the

Working Group that the violations that it identified in its petition have been independently

confirmed by the European Commission in connection with the accession of Turkey to the

European Union and by reputable international NGOs.

61.

In its annual progress report on Turkey, the European Commission stated:

“Concerns persisted over the rights of the defence, lengthy pre-trial detention and

excessively long and catch-all indictments, leading to significantly enhanced public

scrutiny of the legitimacy of these trials. … These cases have been overshadowed by

real concerns about their wide scope and the shortcomings in judicial proceedings.

…

“Investigations tend to expand rapidly; the judiciary accepts mainly evidence

collected by the police only, or supplied by secret witnesses.” 1

62.

The source notes that, rather than offering a justification for its actions or disputing

the source’s assertions with specifics, the Government in its response simply states in

generic language that, “all the fundamental guarantees of the right to a fair trial . . . have

been met in this case.” The Government did not respond to the claims that in the trials the

following violations had taken place: (1) shifting the burden of proof to defendants to prove

their innocence; (2) the right to a trial without undue delay; and (3) violating attorney-client

confidentiality. According to the source, they remain uncontroverted facts.

63.

The source then reiterates and clarifies its original submission on a number of

points. Given the forcible retirement and the additional indictments for defamation, the

source reiterates that the Government was operating from a presumption that the defendants

were guilty, indicating that the outcome of the trial was predetermined, and thus

demonstrating that the Court had violated the defendants’ right to be presumed innocent.

The source notes that, rather than disputing these facts, the Turkish Government in its

response simply stated in a conclusory manner, without further explanation, that “[The

1 European Commission, Turkey 2012 Progress Report, October 10, 2012, p. 7, available at:

http://www.avrupa.info.tr/fileadmin/Content/Files/File/key_documents-

Turkish/tr_rapport_2012_en.pdf.

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12

Government of Turkey] respects the presumption of innocence of the petitioners and

accords primary importance to this principle.”

64.

The source also reiterates that the court omitted the process for evaluating evidence;

denied defence requests for witnesses and experts; and withheld (or distorted) exculpatory

evidence from the defence. In its response the Turkish Government asserted that this was

necessary because such evidence had to remain confidential so as not to jeopardize the

investigation and its objectives. The source notes that Turkish law dictates that prosecutors

must collect and present evidence that implicates as well as that which exculpates and that

article 14, paragraph 3(a), of the Covenant necessarily requires the accused to have access

to all the information being used. The source submits that because the defendants did not

have access to all the evidence, all proffered justifications by the Turkish Government are

irrelevant, as such action was in violation of the defendants’ rights under Turkish and

international law.

65.

The source further reiterates that the Government has violated the right of the

defendants to be tried without undue delay. Twenty-one of the 163 defendants from the first

indictment were detained for up to 23 months from their arrest until their conviction, with

the remaining 142 defendants detained for up to 19 months, and 87 defendants from the

second and third indictments detained for up to 15 months. The source submits that, during

this period, neither the Court nor the prosecution provided any reasoning for the protracted

proceedings. There was no periodic review satisfying Turkish law or the Covenant.

66.

The source also notes that Turkish law requires courts to render written monthly

decisions stating the legal and factual grounds for the continued detention of defendants in

lieu of releasing them on bail. However, the Turkish Court, in all its decisions affirming

continued detention, offered no detailed explanation as to why the defendants could not be

released, other than invoking generic pronouncements that the detention was necessary due

to, for example, “the nature of the charges” or “the continued presence of strong suspicion

of criminal activity.” According to the source, the Court refused the defence lawyers’

request to speak following the Court’s repeated demands for continued detention and did

not provide an explanation as to why some defendants in the “Sledgehammer” case were

released and tried while free, whereas the 250 that make up the vast majority were detained,

despite the fact that all 365 defendants were facing identical legal charges.

67.

With regard to the right to client-attorney confidentiality, the source reiterates that

shortly before the second indictment, the Court had placed microphones on the ceiling to

record all conversations in the courtroom, including those between the defence attorneys

and their clients. The source submits that the result of the recording of the conversations

was to prevent confidential communication between the defendants and their counsel, thus

violating the right to attorney-client confidentiality provided for in article 14, paragraph

3(b) the Covenant and Turkish law. The source also notes that the Turkish Government

provides no response to this due process violation.

68.

In conclusion, the source contends that the continued detention of the petitioners is

arbitrary, in that it violates the rights and fundamental freedoms established in the

Covenant, the Universal Declaration of Human Rights, and the Body of Principles. They

should therefore be released immediately from detention.

Discussion

69.

The Government makes two main procedural points. One is that the cases are under

appeal in the court system, and the other is that there is a domestic constitutional

complaints procedure under which some actions have been brought by defendants to the

current trials. The Government claims that the communication should be dismissed by the

Working Group because the case is sub judice, or still under judicial consideration. It

A/HRC/WGAD/2013/6

13

suffices to note that the Working Group is not bound by any such sub judice rule, which in

domestic jurisdictions imposes restrictions on out-of-court comments and statements

regarding cases which are under judicial consideration. Similar considerations apply in

relation to exhaustion of domestic remedies and lis pendens doctrines. The Working Group

does not follow such doctrines in the same way as domestic courts or certain other

international courts, tribunals or other human rights bodies. Otherwise, the Working Group

would not be able to fulfil its mandate to consider cases of violations of the right of the

accused to be tried within a reasonable time or to be released.

70.

The other main procedural point concerns the applications to the European Court of

Human Rights. The Government has requested that the communication be declared

inadmissible given that some of the claimants have submitted their case and a similar

petition before the European Court of Human Rights and that the cases before the European

Court and the Working Group are identical or parallel on many issues. The Government has

referred the Working Croup to the European Court’s rulings on admissibility and the further

procedures in Case no. 28484/10, Çetin Doğan v. Turkey. The Working Group has

benefited from the summary of the facts and grievances linked with the case in the

preliminary decision of the European Court on admissibility. In 2012, the European Court

posed these two questions to the parties:

1.

Did the applicant have at his disposal, as guaranteed by article 5 § 4 of the

Convention, an effective remedy available to contest the legality of his pre-trial

detention?

In particular, during the period of instruction (prior to the opening of the

hearings before the crown court), did the applicant benefit from a fair hearing and a

contradictory procedure before the judge during the examination of his requests to

be released (Erkan İnan v. Turkey, no. 13176/05, §§ 31-32, 23 February 2010)?

2.

Moreover, during the proceedings, did the applicant have the possibility to be

notified of the opinion of the Public Prosecutor on the appeals he introduced against

the decisions denying his requests for release (Altınok v. Turkey, no. 31610/08,

§§ 57-61, 29 November 2011)?

71.

The Working Group does not have the same admissibility criteria as the European

Court. In a case such as Mr. Doğan’s, the European Court will primarily review compliance

with the European Convention on Human Rights, while the Working Group will review

compliance with the Covenant and customary international law. The Working Group does

not consider itself precluded from the examination of a communication on the sole ground

that an identical or the same application is pending before the European Court. The

Working Group will in this case proceed to consider the issues relating to the Covenant and

customary international law.

72.

Having studied and analysed the material before it, the Working Group considers it

appropriate to address all 250 individuals in one Opinion, as their legal charges included

involvement in the alleged “Sledgehammer” Coup to overthrow the Government, and the

allegations put forward by the source relate to these individuals as a group.

73.

The Government has not addressed a number of the allegations put forward by the

source, including in relation to due process violations. The Working Group notes that the

Government does not avail itself of the opportunity of offering an explanation for the

various allegations in relation to due process violations either by acknowledging that these

have indeed taken place as identified by the source or by rebutting or otherwise disputing

them. In the absence of any further information submitted by the Government other than

that referred to above and taken duly into account, the Working Group must base its

opinion on the case as provided by the source. According to its revised methods of work,

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14

the Working Group is in a position to render an opinion on the case on the basis of the

submissions that have been made.

74.

The source has alleged that the Government has violated the right of the defendants

to be tried without undue delay. In this regard the Working Group notes that, while the right

to a fair trial necessarily implies that justice be done without undue delay, the question as to

what is a reasonable time depends on the circumstances and complexity of each case and,

where appropriate, on the use of remedies and of the right periodically to contest the

accused’s continued preventive detention. In reaching its decisions, the Working Group

proceeds on a case-by-case basis. The Government has not shown that the defendants had

effective remedies available to contest the legality of their pretrial detention as well as the

issue of bail. The Government has not shown that the courts provided periodic decisions

stating the legal and factual grounds for the continued detention of the defendants, also

addressing the proportionality review involved in determining continued detention in lieu of

release on bail. In the Working Group’s opinion, this provides sufficient grounds for it to

conclude that there has been a violation of article 9, paragraph 3, of the Covenant and

article 9 of the Universal Declaration of Human Rights.

75.

The source has alleged that there were several grave violations of the defendants’

fair trial rights in the main proceedings. The Working Group has considered all the

submissions made by the source and the responses by the Government. The Government’s

response did not dispute the source’s allegations about procedural irregularities in the first

phase of the trial, particularly with regard to the requirement under Turkish law that a court

must undergo a process of evaluating the authenticity of the evidence before it. Nor did the

Government dispute the source’s allegation that it refused to consider three expert reports

from the defence refuting the authenticity of the digital evidence or to appoint its own

expert to evaluate that evidence. Furthermore, the Government’s response did not dispute

that the court refused to allow the defence to call two key witnesses, one of whom claimed

to have thwarted the alleged coup.

76.

The Government contends that the restrictions on the accused’s access to

confidential material in the investigation file were legitimate under international human

rights instruments. In this regard, the Working Group notes that such restrictions would be

legitimate in respect of material which is not then used as evidence against the accused at

trial and is not of an exculpatory nature. In the current case, however, in violation of article

14, paragraph 3(b) of the Covenant, the accused, on the pretext of national security, were

denied access to substantial evidence used by the prosecution at trial and to some

potentially exculpatory evidence.

77.

The Government did not rebut the allegation that microphones placed throughout the

courtroom enabled the Government to listen to confidential attorney-client communications

during the trial. Thus, in violation of article 14, paragraph 3(b), the accused were deprived

of the right to communicate with their defence counsel in private in the courtroom during

the trial.

78.

The Working Group concludes that, given the circumstances of the case, the due

process violations identified above constitute breaches of articles 9 and 14, paragraph 3, of

the International Covenant on Civil and Political Rights and articles 9, 10 and 11 of the

Universal Declaration of Human Rights. Thus, the deprivation of liberty of the 250

petitioners falls within category III of the arbitrary detention categories referred to by the

Working Group when considering the cases submitted to it.

Disposition

79.

In the light of the foregoing, the Working Group on Arbitrary Detention renders the

following opinion:

A/HRC/WGAD/2013/6

15

The deprivation of liberty of the 250 detained defendants in the Balyoz or

“Sledgehammer” cases is arbitrary, in contravention of articles 9 and 14 of the

International Covenant on Civil and Political Rights as well as articles 9, 10 and 11

of the Universal Declaration of Human Rights; it falls within category III of the

arbitrary detention categories referred to by the Working Group when considering

the cases submitted to it.

80.

Consequent upon the opinion rendered, the Working Group requests the

Government of Turkey to remedy the situation of these 250 persons in accordance with the

provisions of the Universal Declaration of Human Rights and the International Covenant on

Civil and Political Rights. The Working Group considers that, taking into account all the

circumstances of the case, an adequate remedy would be an enforceable right to

compensation under article 9, paragraph 5, of the International Covenant on Civil and

Political Rights.

81.

The Working Group has noted the information provided by the Government of

Turkey in its submissions that the cases are subject to various domestic appeals and review

procedures. Due account would need to be taken in these procedures of the shortcomings

identified above in this Opinion.

[Adopted on 1 May 2013]