A/HRC/WGAD/2018/11

GE.18-08421(E)



Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its eighty-first session, 17–26 April 2018

Opinion No. 11/2018 concerning Mesut Kaçmaz, Meral Kaçmaz and

two minors (whose names are known by the Working Group) (Pakistan

and Turkey)

1.

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

the Commission on Human Rights, which extended and clarified the Working Group’s

mandate in its resolution 1997/50. Pursuant to General Assembly resolution 60/251 and

Human Rights Council decision 1/102, the Council assumed the mandate of the

Commission. The Council most recently extended the mandate of the Working Group for a

three-year period in its resolution 33/30.

2.

In accordance with its methods of work (A/HRC/36/38), on 19 January 2018, the

Working Group transmitted to the Government of Pakistan and to the Government of

Turkey a communication concerning Mesut Kaçmaz, Meral Kaçmaz and two minors

(whose names are known by the Working Group). The Government of Pakistan submitted a

late response on 16 April 2018, while the Government of Turkey replied on 27 March 2018.

Both Pakistan and Turkey are parties to the International Covenant on Civil and Political

Rights.

3.

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

cases:

(a)

When it is clearly impossible to invoke any legal basis justifying 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 him or her) (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 Covenant (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);

(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 on

the grounds of discrimination based on birth, national, ethnic or social origin, language,

United Nations

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General Assembly

Distr.: General

25 May 2018

Original: English

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

disability, or any other status, that aims towards or can result in ignoring the equality of

human beings (category V).

Submissions

Communication from the source

4.

Mr. Kaçmaz, born in 1974, and Mrs. Kaçmaz, born in 1978, are Turkish citizens and

a married couple. They have two daughters who are both currently minors, aged 17 and 16

years respectively, whose names are known by the Working Group (referred to below as the

“two minors”). The two minors are also Turkish citizens. Prior to their arrest, the Kaçmaz

family resided in Wapda Town, Lahore, Pakistan.

5.

According to the source, Mr. and Mrs. Kaçmaz are both teachers. Mr. Kaçmaz is a

former teacher at the Pak-Turk School, one of the educational institutions linked to the

Hizmet movement of Pakistan. The Kaçmaz family hold asylum seeker certificates from the

Office of the United Nations High Commissioner for Refugees (UNHCR), valid until 24

November 2017, indicating that they should be protected from forcible return to a country

where they claim they face threats to their lives or freedom, pending a final decision on

their refugee status.

6.

The source alleges that, in 2016, the Government of Turkey pressured almost all

countries in the world to take legal action against suspected supporters of Fethullah Gülen,

whom the Turkish authorities accused of masterminding the attempted coup of 15 July

2016. Fethullah Gülen and the Hizmet movement reportedly denied the accusations.

According to the source, there was abundant evidence of arbitrary detention and torture of

detainees who had been suspected of belonging to or expressing sympathy for the

Hizmet/Gülen movement, which international and national human rights organizations have

also documented.

Arrest and detention in Pakistan

7.

The source reports that, on 27 September 2017, at around 2.10 a.m., the Kaçmaz

family home in Lahore was raided by about 15 “officers” in plain clothes, including several

female officers, who provided no identification. According to the source, the officers

arrested the family using pushing and shoving, including Mr. Kaçmaz, who expressed his

protest against the raid. Mrs. Kaçmaz, who had been lying on the floor, was pulled to her

feet by two female officers. The two minors cried loudly and were carried out by their arms

and legs and later slapped. The source alleges that, when a neighbour saw the

disproportionate force used on Mrs. Kaçmaz, he protested and was arrested. The officers

provided no reasons for the arrest. They did not search the house.

8.

According to the source, the Kaçmaz family and the neighbour were forced into

pickup trucks. They were dressed only in their pyjamas and not allowed to wear shoes. The

officers blindfolded them and later slipped hoods over their heads, including on Mrs.

Kaçmaz and the two minors. They handcuffed the neighbour and tightened a cloth strip

around the wrists of Mr. Kaçmaz, who continued to protest and received blows to his face.

They travelled for about 30 minutes to what is believed to be a military cantonment. The

officers informed the neighbour that his name was not on their list and that they would set

him free. He was blindfolded and driven back to his housing complex.

9.

The source alleges that the Kaçmaz family was kept at an unknown location with

opaque windows. They were prevented from going outside and did not see daylight for 17

days. Two officers, who indicated that they were from the Pakistani Counter-Terrorism

Department, were placed in charge of them. During the last night, the officers told the

family that they would be taken to Islamabad for a meeting at the Turkish Embassy and at

the Ministry of Foreign Affairs in order to solve the situation, and that they would then

return to their home in Lahore and continue their lives as normal. The officers reassured

them that they would not be turned over to the Turkish authorities.

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Petition before the Lahore High Court

10.

On 28 September 2017, associates of the Kaçmaz family filed a writ petition with

the Lahore High Court, requesting that Mr. Kaçmaz and his family members be released

and not deported to Turkey. In an order of 28 September 2017, the judge directed the

Deputy Attorney-General to provide information on the case and ensure that Mr. Kaçmaz

and his family would not be deported before the next hearing.

11.

During the hearing of 16 October 2017, the Lahore High Court was informed by the

Deputy Attorney-General that the Kaçmaz family had not been deported from Pakistan by

any agency or department under the control of the Ministry of the Interior, including the

Federal Investigation Agency. The Ministry of the Interior also stated in its report to the

Court that the names of the members of the Kaçmaz family, as per the order of the Lahore

High Court, had been included in the Exit Control Lists since 12 October 2017.

12.

According to the source, the petitioners’ counsel informed the Lahore High Court

that Mr. Kaçmaz, along with his three family members, had been forcibly deported on 14

October 2017, despite the court order staying their deportation. The counsel submitted a

contempt petition against the Government of Pakistan. The Court was also requested to stay

the deportation of additional Turkish citizens teaching at Pak-Turk schools and colleges,

and to restrain authorities from harassing them.

Forcible deportation

13.

The source reports that the Kaçmaz family was forcibly deported on 14 October

2017 and flown on a special, unmarked aircraft from Islamabad to Istanbul, Turkey. While

Pakistani staff transported the family to the flight, there were only Turkish agents on board

the aircraft. The family was removed from Pakistan without their passports or identification

documents. The source alleges that, during the flight, Mr. Kaçmaz was verbally abused and

ill-treated by the Turkish agents.

Ongoing incommunicado detention in Turkey

14.

The source alleges that, following their arrival in Istanbul, the family members were

put into separate vehicles and taken to a police bureau at the terminal, where they waited

for several hours, blindfolded and not allowed to speak. Mr. Kaçmaz was subsequently

taken away. Mrs. Kaçmaz and the two minors were driven to a police station in Bakirkoy,

and later to a hospital, where Mrs. Kaçmaz was given a health report. They spent the night

in a detention room. A family friend came to the police station the next day and picked up

the two minors, who are not currently deprived of their liberty. Mrs. Kaçmaz stayed at the

police station and was taken to Ankara on a flight at 8.00 p.m.

15.

The source reports that, at the time of its communication to the Working Group, no

further information was available about the situation of Mr. and Mrs. Kaçmaz, including as

to whether any charges had been brought against them, or whether Mr. and Mrs. Kaçmaz

had been brought before a judicial authority or granted access to legal counsel.

16.

The source is concerned that Mr. and Mrs. Kaçmaz have been placed beyond the

protection of the law in Turkey and are at high risk of torture or other ill-treatment, unfair

trial or other serious human rights violations, following their apprehension and expulsion to

Turkey. According to the source, the couple is being held incommunicado and there is no

news of their condition. The source submits that their deprivation of liberty is arbitrary.

Responses from the Governments to the regular communication

17.

On 19 January 2018, the Working Group transmitted the allegations from the source

to the Government of Pakistan and to the Government of Turkey under its regular

communication procedure. The Working Group requested both Governments to provide

detailed information by 20 March 2018 about the situation of Mr. and Mrs. Kaçmaz and the

two minors. The Working Group also requested both Governments to clarify the legal

provisions justifying their detention, as well as its compatibility with the obligations of

Pakistan and Turkey under international human rights law. The Working Group called upon

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the Government of Turkey to ensure the physical and mental integrity of the Kaçmaz

family.

18.

The Government of Pakistan responded on 16 April 2018. The Government of

Pakistan had not requested an extension of the time limit for its reply, as provided for in the

Working Group’s methods of work. The response in the present case is therefore late, and

the Working Group cannot accept the response as if it was presented within the time limit.

19.

On 14 March 2018, the Government of Turkey requested that the deadline be

extended. The extension was granted, and a new deadline set for 27 March 2018. The

Government of Turkey submitted its response on 27 March 2018.

Background information

20.

In its response, the Government of Turkey provides an overview of the terrorism

threats faced by Turkey and the measures taken in response to the security challenges posed

by terrorist organizations. The Government of Turkey submits background information,

especially with regard to the alleged armed terrorist organization, Fetullahist Terrorist

Organization/Parallel State Structure. The Government of Turkey also refers to the

attempted coup of 15 July 2016, noting that there are ongoing investigations into and trials

pending against the organization’s members in relation to the alleged attempt to overthrow

the Government.

21.

According to the Government of Turkey, in order to combat the Fetullahist Terrorist

Organization/Parallel State Structure, and in line with the recommendation of the National

Security Council, a nationwide state of emergency was declared by the Council of

Ministers from 21 July 2016 for three months, pursuant to article 120 of the Constitution

and article 3 (1) (b) of Law No. 2935. The Council of Ministers extended the state of

emergency for another three months from 19 January 2018.

22.

Following the declaration of the state of emergency, the Government of Turkey

derogated from its obligations under the Convention for the Protection of Human Rights

and Fundamental Freedoms (the European Convention on Human Rights) and the

Covenant. Notification of that derogation, and the extensions of the state of emergency,

were submitted to the Council of Europe under article 15 of the Convention and to the

Secretariat of the United Nations under article 4 of the Covenant. The measures taken are

strictly required by the exigencies of the situation, proportionate to the current crisis and

necessary to eliminate the influence of terrorist organizations. The scope of the decree laws

issued in relation to the state of emergency is limited to terrorist organizations, in order not

to interfere with the rights and freedoms of others.

23.

The state-of-emergency procedures are set out in articles 119 to 122 of the Turkish

Constitution. According to article 15 of the Constitution, “the exercise of fundamental

rights and freedoms may be partially or entirely derogated … to the extent required by the

exigencies of the situation, as long as obligations under international law are not violated.”

The Government of Turkey points out that those provisions use similar wording to article

15 of the European Convention on Human Rights and article 4 of the Covenant.

24.

In addition, the Government of Turkey states that it is aware of its obligations under

international law and is acting with respect for democracy and human rights; that due

respect is shown for fundamental rights and freedoms; and that the rule of law is strictly

observed. The principles of necessity, proportionality and legality have been complied with

in the measures taken under the state of emergency. Since the measures are based on

decrees that have the force of law, the principle of legality is satisfied. While taking

measures under article 15 of the European Convention on Human Rights, Turkey continues

to be subject to the supervision of the European Court of Human Rights.

25.

Furthermore, the state-of-emergency measures are monitored in line with changing

conditions. The maximum duration of police custody in cases of terrorism has been reduced

to seven days in conformity with the jurisprudence of the European Court of Human Rights

and can only be extended once, for a maximum of seven days. Persons in custody, their

lawyers, spouses or relatives may appeal against the order of the Public Prosecutor in

accordance with article 91 (5) of the Code of Criminal Procedure. Detention can be

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challenged and release can be requested at all stages. Legal assistance is available to those

in custody and medical reports are obtained upon entry into and release from custody. Legal

remedies are available, including compensation for the violation of rights pursuant to article

141 of the Code of Criminal Procedure and by individual application to the Constitutional

Court, and fair trial rights are respected.

26.

The Government of Turkey submits that the allegations in the case of Mr. and Mrs

Kaçmaz were not raised at the national level and were brought directly before the Working

Group. No action has been brought in Turkey for compensation under article 141 of the

Code of Criminal Procedure or by an individual application to the Constitutional Court.

International human rights mechanisms are subsidiary remedies, and the examination of a

human rights violation by an international body should not be undertaken when it can be

redressed within domestic proceedings. The purpose of the Working Group is not to replace

domestic judicial authorities. As a result, the allegations should be rejected under article 41

(1) (c) of the Covenant owing to the non-exhaustion of domestic remedies.

Circumstances of the present case

27.

The Government of Turkey confirms that Mr. and Mrs. Kaçmaz and the two minors

arrived in Turkey from Pakistan on 14 October 2017. Upon their arrival, Mr. and Mrs.

Kaçmaz were arrested on suspicion of “being a member of an armed terrorist organization”,

namely the Fetullahist Terrorist Organization/Parallel State Structure, in connection with

the attempted coup on 15 July 2016. The two minors were handed over to a relative, with

the consent of their mother. Currently, Mr. Kaçmaz is detained pending trial before the 37th

Assize Court of Istanbul (case No. 2017/118) and Mrs. Kaçmaz is detained pending trial

before the 33rd Assize Court of Istanbul (case No. 2017/251).

28.

According to the Government of Turkey, Mr. Kaçmaz made a request to benefit

from the provisions for those who show remorse. Mr. Kaçmaz made a statement explaining

that: (a) he had used the encrypted communication programme downloaded by members of

the Fetullahist Terrorist Organization/Parallel State Structure; (b) instructive notes for the

hierarchical structure had been shared by the organization through that programme; and (c)

orders had been given to organization’s members via this programme. As a result of the

investigation, the Chief Public Prosecutor’s Office of Istanbul filed an indictment against

Mr. Kaçmaz alleging that he was a member of an armed terrorist organization.

29.

The 3rd Criminal Magistrates’ Office of Istanbul detained Mr. Kaçmaz on 16

October 2017, having considered the charge against him, that there were reasonable

grounds to suspect that he might attempt to escape or interfere with evidence, and that

judicial control measures would be insufficient. The 37th Assize Court of Istanbul extended

Mr. Kaçmaz’s detention. An appeal against that decision was rejected by the 1st Criminal

Magistrate’s Office of Istanbul on the grounds that the charge was included in article 100 of

the Code of Criminal Procedure, there was evidence such as Bank Asya1 records that had

led to a strong suspicion that Mr. Kaçmaz had committed the alleged crime, detention was

proportional to the amount of the likely penalty, and judicial control measures would be

insufficient.

30.

On 13 February 2018, Mr. Kaçmaz’s detention was extended by the 37th Assize

Court of Istanbul. The Court took into account the statement of the defendant, the date of

detention, the existence of a strong suspicion of guilt and that the defendant might attempt

to escape, the likely penalty, the fact that the crime was included in article 100 of the Code

of Criminal Procedure, and that judicial control measures would be insufficient. The next

hearing was scheduled for 26 April 2018. A defence lawyer was appointed to represent Mr.

Kaçmaz.

31.

In addition, the Chief Public Prosecutor’s Office of Istanbul launched an

investigation against Mrs. Kaçmaz based on the suspicion that she was a member of a

terrorist organization. The 2nd Criminal Magistrate’s Office of Istanbul ordered Mrs.

1 According to the Government of Turkey, Bank Asya was established by the Fetullahist Terrorist

Organization/Parallel State Structure in order to finance its activities.

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Kaçmaz’s detention. The Chief Public Prosecutor’s Office filed an indictment against Mrs.

Kaçmaz on 8 December 2017 with the 33rd Assize Court of Istanbul on the charge of

“being a member of an armed terrorist organization” under articles 3 and 5 of the Anti-

Terror Law No. 3713 and under articles 314 (2), 53 (1), 58 (9) and 63 of the Turkish

Criminal Code.

32.

The 33rd Assize Court of İstanbul extended Mrs. Kaçmaz’s detention. The Court

took into account the nature and seriousness of the crime, the search and seizure minutes,

the statements of the defendants, the existence of a strong suspicion of guilt, the fact that

the evidence had not yet been fully collected, the duration of detention, the likely penalty,

the fact that the crime was included in article 100 of the Code of Criminal Procedure, the

principle of proportionality, and that judicial control measures would be insufficient. Mrs.

Kaçmaz was provided legal assistance during the investigation and prosecution.

Submissions on arbitrary detention

33.

The Government of Turkey submits that the prosecution of only those who carried

out the attempted coup would not be sufficient in the fight against the Fetullahist Terrorist

Organization/Parallel State Structure, and that it is also necessary that the masterminds of

the attempted coup be identified and held accountable. Given the charges against Mr. and

Mrs. Kaçmaz, the confessions made and the existing evidence, any allegation that they have

been detained arbitrarily is baseless.

34.

In its jurisprudence, the European Court of Human Rights requires the existence of a

reasonable suspicion that the person(s) concerned committed the offence in question as a

condition for the lawfulness of detention. The suspect must be released if a reasonable

suspicion no longer exists. The Government of Turkey argues that there is a reasonable

suspicion that Mr. and Mrs. Kaçmaz committed the alleged offence. Mr. Kaçmaz confessed

that he was a member of the terrorist organization, showed remorse, disclosed information

regarding the structure and functioning of the Fetullahist Terrorist Organization/Parallel

State Structure, and partially admitted the charges.

35.

According to the Government of Turkey, Mr. and Mrs. Kaçmaz were notified of the

charges against them. When Mr. and Mrs. Kaçmaz were placed in custody, forensic reports

were taken and they were notified of their rights. There was no finding of assault or ill-

treatment in the forensic reports, and no allegation of ill-treatment in their statements given

during the investigation period and before the judge. Mr. and Mrs. Kaçmaz gave their

statements in the presence of defence lawyers and they were granted the right of defence

and legal assistance.

36.

Furthermore, the decisions to arrest, detain and extend the detention of Mr. and Mrs.

Kaçmaz were made by independent judges. The existence of a strong suspicion of guilt was

sufficiently reasoned in the decisions given for the detention of both individuals. They

exercised the right to challenge these decisions, and their objections were reviewed by the

judicial authorities and reasoned decisions provided. Accordingly, the Government of

Turkey submits that there has been no violation of the Covenant and the case should be

dismissed on procedural and substantive grounds. Finally, the complaints regarding Mr. and

Mrs. Kaçmaz fall within the scope of the notification of derogation.

Further information from the source

37.

On 27 March 2018, the response from the Government of Turkey was sent to the

source for further comment. The source responded on 9 April 2018.

38.

The source provides an extensive background on the Hizmet movement and alleges

that it has been unfairly blamed for numerous serious events in Turkey, including being

referred to by the Government of Turkey as a terrorist organization. The source notes that a

critical component of terrorism is the readiness of any armed group to use violence,

whereas the Hizmet movement emphasizes peace and does not support political violence or

overthrow of the State. According to the source, the Hizmet movement has not been

recognized as a terrorist organization in any final judgment of the Turkish Court of

Cassation, which must take place under Turkish law in designating a group as a terrorist

organization.

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39.

The source refers to the alleged use of an encrypted communication programme in

the present case, points to its wide availability and disputes the Government’s claim that it

was primarily used by members of the Gülen movement. The source also notes that the

antiterrorism laws, including articles 312 and 314 of the Turkish Criminal Code, are overly

broad and easily manipulated for political purposes, particularly during a state of

emergency. In addition, while the Government’s derogation from the Covenant referred to

articles affected by the emergency measures, it did not include a description of those

measures and their anticipated effect, as suggested by the Siracusa Principles on the

Limitation and Derogation of Provisions in the International Covenant on Civil and

Political Rights. The derogation does not meet the requirements of necessity,

proportionality and legality.

40.

The source further argues that the victims need not exhaust domestic remedies,

particularly in the present case, as the independence of the judiciary in Turkey has been

compromised. Remedies are not readily available for the victims, and even if they were

available, their exhaustion would have only unduly prolonged the detention of Mr. and Mrs.

Kaçmaz.

Discussion

41.

The present case involves two States and the Working Group will discuss the issues

related to each State separately. In determining whether the deprivation of liberty of Mr.

and Mrs. Kaçmaz and the two minors is arbitrary, the Working Group has regard to the

principles established in its jurisprudence to deal with evidentiary issues. If the source has

presented a prima facie case for breach of international requirements constituting arbitrary

detention, the burden of proof should be understood to rest upon the Governments to refute

the allegations. The Governments can meet this burden of proof by producing documentary

evidence in support of their claims. 2 Mere assertions by the Governments that lawful

procedures have been followed are not sufficient to rebut the source’s allegations (see

A/HRC/19/57, para. 68).

Allegations against Pakistan

42.

In the absence of a timely response from the Government of Pakistan, the Working

Group has decided to render the present opinion, in conformity with paragraph 15 of its

methods of work. The Working Group will base its opinion on the case made out by the

source.

43.

The source alleges that the Government of Pakistan detained Mr. and Mrs. Kaçmaz

and the two minors on 27 September 2017, when they were abducted in the middle of the

night from their home in Wapda Town, Lahore. According to the source, the Kaçmaz

family was held for 17 days at an unknown location believed to be a military cantonment

until 14 October 2017, when they were handed over to the Turkish authorities for

transportation from Islamabad to Istanbul.

44.

As a preliminary issue, the Working Group will consider whether the arrest,

detention and deportation of the Kaçmaz family was carried out by agents acting on behalf

of the Government of Pakistan. 3 In its initial communication, the source provided

2 See opinion No. 41/2013, in which the Working Group notes that the source of a communication and

the Government do not always have equal access to the evidence, and frequently the Government

alone has the relevant information. In that case, the Working Group recalled that where it is alleged

that a person has not been afforded, by a public authority, certain procedural guarantees to which he

or she was entitled, the burden to prove the negative fact asserted by the applicant is on the public

authority, because the latter is “generally able to demonstrate that it has followed the appropriate

procedures and applied the guarantees required by law ... by producing documentary evidence of the

actions that were carried out”. See also Ahmadou Sadio Diallo (Republic of Guinea v. Democratic

Republic of the Congo), ICJ, Judgment, 30 November 2010, para. 55.

3 The Working Group has previously found that detention carried out by groups acting on behalf and

with the support of a government to be within its mandate. See, e.g., opinions No. 4/2016 and No.

3/2016.

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information indicating that it was unclear who had arrested the Kaçmaz family or which

organization they had represented. The source alleged that the 15 persons who had raided

the Kaçmaz home on 27 September 2017 had been wearing plain clothes and had produced

no identification, then had taken the Kaçmaz family and their neighbour away in unmarked

vehicles. According to the source, the police had denied that the Kaçmaz family had been

under police custody. In addition, according to court documents provided by the source, the

Deputy Attorney-General had informed the Lahore High Court that no agencies or

departments under the control of the Ministry of the Interior had been involved in the

deportation.

45.

However, subsequent events after the initial arrest strongly suggest that the

Government of Pakistan had been involved in all actions taken against the Kaçmaz family.

The source alleges that two officers who had stated that they were from the Pakistani

Counter-Terrorism Department were placed in charge of the Kaçmaz family while they

were detained at the unknown location. The officers reportedly told the family that they

would be taken to Islamabad for a meeting at the Turkish Embassy, and appear to have later

taken the family to Islamabad for the flight to Istanbul. Moreover, the Working Group

considers it highly implausible that an unmarked aircraft could transport four individuals,

whose names had reportedly been on an Exit Control List, out of Pakistan without the

knowledge and acquiescence of the Government of Pakistan. In the absence of any

alternative explanation from the Government of Pakistan, the Working Group considers

that the arrest, detention and deportation of the Kaçmaz family was carried out by the

Government of Pakistan, through agents (either State agents or otherwise) acting on its

behalf and with its support, and at the request of the Turkish authorities.

46.

In addition, the Working Group considers that the information submitted by the

source indicates that the arrest, detention and deportation of the Kaçmaz family was carried

out without any legal basis. The Working Group is convinced that the Kaçmaz family was

taken away from their home on 27 September 2017 without any legitimate legal procedure

having been followed. That is, the arresting officers did not identify themselves, no arrest

warrant was presented, no reasons were given to the Kaçmaz family for their arrests, the

family members were taken by force while blindfolded, hooded and handcuffed and

detained in a secret location4 with no outdoor access for 17 days. The Working Group finds

that the Government of Pakistan violated the rights of Mr. and Mrs. Kaçmaz and the two

minors to protection from arbitrary arrest and detention under article 9 (1) and (2) of the

Covenant.5

47.

Furthermore, the Working Group finds that the Kaçmaz family was held

incommunicado at a secret location for 17 days from their arrest on 27 September 2017

until they were deported on 14 October 2017. As the Working Group has consistently held,

holding persons incommunicado violates their right to be brought before a court under

article 9 (3) of the Covenant and to challenge the lawfulness of their detention before a

court under article 9 (4) of the Covenant.6 Judicial oversight of detention is a fundamental

safeguard of personal liberty7 and is essential in ensuring that detention has a legal basis.

While associates of the Kaçmaz family filed a writ petition before the Lahore High Court

seeking their release, this does not satisfy articles 9 (3) and (4) of the Covenant. The

Government of Pakistan is obliged to ensure that detainees have their detention reviewed

before a judicial authority, rather than simply acting as the respondent to legal action

initiated by another party. Given that Mr. and Mrs. Kaçmaz and the two minors had been

unable to personally challenge their detention, their right to an effective remedy under

4 See opinion No. 14/2009 and No. 12/2006, in which the Working Group found that detention at a

secret location had been per se arbitrary under category I because no legal procedure had been

followed.

5 The Working Group has made similar findings in other cases involving the detention of individuals at

an undisclosed location prior to their removal to another country to face criminal charges in relation

to alleged terrorism offences. See, e.g., opinions No. 2/2015 and No. 57/2013.

6 See, e.g., opinions No. 79/2017, No. 46/2017 and No. 45/2017.

7 See United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right of

Anyone Deprived of Their Liberty to Bring Proceedings Before a Court, para. 3.

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article 8 of the Universal Declaration of Human Rights and article 2 (3) of the Covenant

was also violated.

48.

The Working Group considers that not only was there no legal basis invoked by the

authorities for the actions taken against the Kaçmaz family, but the authorities also arrested,

detained and deported the family in violation of Pakistani law. The source provided a copy

of an order made by the Lahore High Court on 28 September 2017 restraining the

Government of Pakistan from deporting the Kaçmaz family before the next hearing on the

matter. However, the Kaçmaz family was forcibly deported on 14 October 2017, two days

before the next hearing, scheduled for 16 October 2017, in egregious defiance of a judicial

order. The source also provided a copy of the contempt petition filed against the

Government of Pakistan in relation to the violation of the court order.

49.

For those reasons, the Working Group considers that there was no legal basis

established for the arrest, detention and deportation of Mr. and Mrs. Kaçmaz and the two

minors under article 9 of the Covenant. The Working Group concludes that their

deprivation of liberty from 27 September to 14 October 2017 was arbitrary under category

I.

50.

The Working Group also considers that, in arresting, detaining and deporting Mr.

and Mrs. Kaçmaz and the two minors, the Government of Pakistan has committed serious

violations of their right to a fair trial.

51.

First, the Government of Pakistan placed the Kaçmaz family in secret detention for

17 days without disclosing their whereabouts to the family’s friends and colleagues or

acknowledging their detention. In 2010, the Working Group and several special procedure

mandate holders completed a joint study on global practices in relation to secret detention

in the context of counter-terrorism (A/HRC/13/42). The experts reiterated that international

law prohibited secret detention, which violates several human rights norms, including the

right to fair trial (see paras. 27 and 282). The experts found that certain practices inherent in

secret detention, such as the use of secrecy and insecurity caused by the denial of contact

with the outside world, placed detainees in a situation of heightened vulnerability to

violations of the right to fair trial, including forced confession of guilt, denial of the

presumption of innocence, inability to challenge the lawfulness of detention, denial of

access to legal representation, as well as torture and ill-treatment. 8 Moreover, in its

resolution 37/3, the Human Rights Council stressed that no one should be held in secret

detention and urged States to ensure that all persons held in detention under their authority

were provided with access to the courts and to investigate all alleged cases of secret

detention, including under the pretext of counter-terrorism.9

52.

In the present case, the Government of Pakistan placed the Kaçmaz family in a

vulnerable situation while they were held incommunicado and in secret detention for 17

days. The use of incommunicado and secret detention deprived the Kaçmaz family of their

rights to challenge their detention and to legal assistance during their detention.10 In doing

so, the Government of Pakistan violated articles 9 and 10 of the Universal Declaration of

Human Rights and articles 9 and 14 (3) (b) of the Covenant. The Government of Pakistan

also placed Mr. and Mrs. Kaçmaz and the two minors beyond the protection of the law, in

violation of their right to recognition as persons before the law under article 6 of the

Universal Declaration of Human Rights and article 16 of the Covenant.11

53.

Second, as the Working Group has previously observed, 12 international law

regarding extradition provides procedures that must be observed by countries in arresting,

detaining and returning individuals to face criminal proceedings in another country and in

ensuring that their right to a fair trial is protected. Those procedures have not been observed

8 See also opinions No. 14/2009, para. 21; and No. 5/2001, para. 10 (iii), in which the Working Group

found that secret detention was per se a violation of the right to a fair trial under category III.

9 See A/HRC/37/L.11/Rev.1, paras. 8–9.

10 See United Nations Basic Principles and Guidelines, principle 9 and guideline 8.

11 See also opinions No. 47/2017, para. 25; and No. 46/2017, para. 23.

12 See, e.g., opinions No. 2/2015 and No. 57/2013.

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10

in the present case, and the Working Group considers that the clandestine arrest, detention

and deportation of the Kaçmaz family did not meet any minimum international standards of

due process.

54.

As the Working Group has stated, individuals should not be expelled to another

country when there are substantial grounds for believing that their life or freedom would be

at risk, or they would be in danger of being subjected to torture or ill-treatment (see

A/HRC/4/40, paras. 44–45). In addition, the Working Group considers that the risk of

arbitrary detention in the receiving State must also be among the elements taken into

consideration before individuals are expelled, particularly in the context of counter-

terrorism efforts. To remove a person to a State when there is a genuine risk that the person

will be detained without legal basis or denied the right to fair trial is not compatible with

the obligation under article 2 of the Covenant to ensure the Covenant rights for all persons

within the State’s territory and subject to its jurisdiction (ibid., paras. 47–49).

55.

Several United Nations bodies have documented widespread violations of human

rights in Turkey, particularly since the attempted coup in July 2016. These include

extrajudicial killings in the context of counter-terrorism operations, arbitrary detention of

people arrested under the state-of-emergency measures, the use of torture and ill-treatment

during pretrial detention and mass dismissals of teachers accused of being associated with

the Gülen movement.13

56.

The Government of Pakistan should have taken that information into account in its

decision to arrest, detain and deport the Kaçmaz family. Instead, it forcibly deported the

family to Turkey, without any apparent regard for the dangers that they might face or

having performed any assessment of the charges and evidence against Mr. and Mrs.

Kaçmaz. The Working Group considers that this represents a violation of the principle of

non-refoulement, which was particularly serious given that the Kaçmaz family held

UNHCR asylum seeker certificates requesting their protection from forcible return to a

country where they claimed to face threats to their life or freedom, pending a final decision

on their refugee status. While Pakistan is not party to the Convention relating to the Status

of Refugees, article 33 (1) of which enshrines the principle of non-refoulement, the

obligation not to repatriate individuals who have reason to fear persecution is also

customary in nature.14

57.

Moreover, the Government of Pakistan violated its obligation under article 3 of the

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment, to which it has been a State party since 2010, and article 7 of the Covenant,15

not to return the Kaçmaz family to another State where there are substantial grounds for

believing that they would be in danger of being subjected to torture or other ill-treatment. In

June 2017, the Committee against Torture reminded Pakistan of that obligation and

expressed concern about documented reports of coercion, including threats of deportation

and police abuse, raids and arbitrary detention, to return refugees to their country of origin

when they could be at risk of persecution, torture or ill-treatment (see CAT/C/PAK/CO/1,

paras. 34–35). The Government of Pakistan has also violated its obligations under article 13

of the Covenant to ensure that aliens lawfully in its territory are expelled only in pursuance

of a decision reached in accordance with law, and to allow them to submit reasons against

the expulsion and to have the case reviewed by, and be represented before, a competent

authority.

13 See, e.g., OHCHR, “Report on the impact of the state of emergency on human rights in Turkey,

including an update on the South-East” (March 2018), available at www.ohchr.org/Documents/

Countries/TR/2018-03-19_Second_OHCHR_Turkey_Report.pdf; opinions No. 41/2017, No. 38/2017

and No. 1/2017; communications issued by the Working Group and other special procedure mandates

(TUR 12/2017, 11/2017, 9/2017, 8/2017, 7/2017, 6/2017); and CAT/C/TUR/CO/4.

14 See A/HRC/13/42, para. 43; and UNHCR, “The Principle of Non-Refoulement as a Norm of

Customary International Law” (1994), available from

http://www.refworld.org/docid/437b6db64.html.

15 See Human Rights Committee general comment No. 20 (1992) on the prohibition of torture or other

cruel, inhuman or degrading treatment or punishment, para. 9.

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11

58.

Thus, the Working Group considers that the Government of Pakistan is responsible

for its own actions in the arrest, detention and deportation of the Kaçmaz family, as well as

the subsequent violations of their rights in Turkey (see paras. 68–69 below).

59.

In addition, the Working Group wishes to express its grave concern at the treatment

of the two minors in the present case. The two minors are not under investigation, yet they

were forcibly removed from their home, abducted with their parents, blindfolded and

hooded, detained and deported. As a State party to the Convention on the Rights of the

Child since 1990, the Government of Pakistan is obliged under article 3 (1) to ensure that

the best interests of the child is a primary consideration. The Government of Pakistan has

violated its obligations under article 37 of the Convention to ensure that the two minors

were not subjected to ill-treatment, that their arrest and detention was not unlawful or

arbitrary, that they were treated with humanity and respect for their inherent dignity, and

that they had prompt access to legal assistance and the right to challenge the legality of

their detention.

60.

The Working Group concludes that these violations of the right to a fair trial are of

such gravity as to give the deprivation of liberty of Mr. and Mrs. Kaçmaz and the two

minors an arbitrary character according to category III.

61.

The present case is the fourth case concerning individuals with alleged links to the

Gülen movement that has come before the Working Group in the past 12 months.16 In these

cases, the Working Group has found that the detention of the concerned individuals was

arbitrary, and it appears that a pattern is emerging whereby those with alleged links to the

Gülen movement are being targeted on the discriminatory basis of their political or other

opinion. Accordingly, the Working Group finds that the Government of Pakistan has, at the

request of the Government of Turkey, detained the Kaçmaz family on the basis of a

prohibited ground of discrimination, and that the case falls within category V.

62.

The Working Group is concerned at the alleged ill-treatment of the Kaçmaz family

during their arrest on 27 September 2017, including the blows that Mr. Kaçmaz allegedly

received to his face. The Working Group refers the present case to the Special Rapporteur

on torture and other cruel, inhuman or degrading treatment or punishment, for further

consideration.

63.

The Working Group also wishes to comment on the arrest of a neighbour of the

Kaçmaz family on 27 September 2017. According to the source, the neighbour was arrested

and taken away with the Kaçmaz family because he had protested against the force used on

Mrs. Kaçmaz. He was later released and taken back to his home. While the Working Group

was not asked to consider the neighbour’s situation, and the Government of Pakistan was

not requested to respond to any allegations in relation to him, the Working Group regards

his arrest as a matter of serious concern, which should be investigated by the authorities.

64.

In conclusion, the Working Group would welcome the opportunity to conduct its

first country visit to Pakistan and to work constructively with the Government of Pakistan

to address issues concerning the arbitrary deprivation of liberty, including those identified

in the present case. As a current member of the Human Rights Council, it would be timely

for the Government of Pakistan to extend an invitation to the Working Group to conduct a

visit to Pakistan. The Working Group looks forward to a positive response from the

Government of Pakistan to its country visit request made on 30 January 2017.

Allegations against Turkey

65.

The Working Group thanks the source and the Government of Turkey for their

submissions in relation to the arrest and detention of Mr. and Mrs. Kaçmaz, as well as the

information provided on the political and legal context in Turkey.

66.

As a preliminary issue, the Working Group wishes to clarify that the procedural

rules governing its consideration of communications on alleged cases of arbitrary detention

are contained in its methods of work. There is no provision in the methods of work that

16 See Opinion Nos. 41/2017, 38/2017 and 1/2017.

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12

prevents the Working Group from considering communications due to the lack of

exhaustion of domestic remedies in the country concerned. The Working Group has also

confirmed in its jurisprudence that there is no requirement for petitioners to exhaust

domestic remedies in order for a communication to be considered admissible.17

67.

As a further preliminary issue, the Working Group wishes to consider the

responsibility of the Government of Turkey for actions taken against the Kaçmaz family in

Pakistan before and during their deportation to Turkey. In the Working Group’s regular

communication of 19 January 2018, the alleged incidents in Pakistan and Turkey were

conveyed to both Governments. In its response, the Government of Turkey did not

comment upon the allegations relating to the arrest, detention and deportation of the

Kaçmaz family in Pakistan, and focused solely on their arrest and detention after their

arrival in Turkey.

68.

The Working Group considers that the arrest, detention and deportation of the

Kaçmaz family from Pakistan to Turkey occurred at the request of the Turkish authorities.

The source alleges, and the Government of Turkey has not denied, that Turkish agents were

on board the flight that removed the Kaçmaz family from Islamabad to Istanbul. Moreover,

the Government of Turkey evidently had prior knowledge of the arrest, detention and

deportation of the Kaçmaz family from Pakistan, given that the Turkish authorities were

present at the airport in Istanbul on 14 October 2017 to arrest Mr. and Mrs. Kaçmaz on

suspicion of “being a member of an armed terrorist organization”. Furthermore, the

Working Group and other special procedure mandate holders have recently sent

communications to several Governments in relation to the deportation of Turkish citizens at

the request of the Government of Turkey.18 The Working Group believes that there are

strong grounds to conclude that the Government of Turkey is collaborating with other

States, in some cases outside the protection of the law, to forcibly return Turkish citizens in

connection with terrorism charges.

69.

Accordingly, the Working Group finds that the Government of Turkey is jointly

responsible with the Government of Pakistan for the arrest, detention and deportation of the

Kaçmaz family to Turkey without any legal basis. As the Working Group and other experts

stated in paragraph 36 of the joint study on global practices in relation to secret detention in

the context of countering terrorism (A/HRC/13/42):

Secret detention, involving the denial or concealment of a person’s detention,

whereabouts or fate has the inherent consequence of placing the person outside the

protection of the law. The practice of “proxy detention”, where persons are

transferred from one State to another outside the realm of any international or

national legal procedure … for the specific purpose of secretly detaining them, or to

exclude the possibility of review by the domestic courts of the State having custody

of the detainee, or otherwise in violation of the well-entrenched principle of non-

refoulement, entails exactly the same consequence. The practice of “proxy

detention” involves the responsibility of both the State that is detaining the victim

and the State on whose behalf or at whose behest the detention takes place.

70.

Turning to the allegations against Turkey, the Working Group notes that Mr. and

Mrs. Kaçmaz have been in pretrial detention in Turkey for over six months since their

arrest by the Turkish authorities on 14 October 2017. The Government of Turkey argues

that their situation falls within the scope of the derogations that it has made under the

Covenant. On 21 July 2016, the Government of Turkey informed the Secretary-General that

it had declared a state of emergency for three months, in response to the severe dangers to

17 See, e.g., opinions No. 19/2013 and No. 11/2000. See also opinions No. 41/2017, para. 73; and No.

38/2017, para. 67, in which the Working Group clarified that it did not require the exhaustion of

domestic remedies.

18 See, e.g., UA KSV 1/2017, available at

https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=23435.

There have been several communications to other Governments in relation to the deportation of

Turkish citizens to Turkey, but they have not yet been published in the special procedures

communications report and remain confidential at the time of the adoption of the present opinion.

A/HRC/WGAD/2018/11

13

public security and order, amounting to a threat to the life of the nation within the meaning

of article 4 of the Covenant. The Government of Turkey stated that the measures taken

might involve derogation from its obligations under articles 2 (3), 9, 10, 12, 13, 14, 17, 19,

21, 22, 25, 26 and 27 of the Covenant.19

71.

While acknowledging the notification of those derogations, the Working Group

emphasizes that, in the discharge of its mandate, it is also empowered under paragraph 7 of

its methods of work to refer to the relevant international standards set forth in the Universal

Declaration of Human Rights, and to customary international law. Moreover, in the present

case, articles 9 and 14 of the Covenant are most relevant to the alleged detention of Mr. and

Mrs. Kaçmaz. As the Human Rights Committee has stated in its general comments No. 35

(2014) on liberty and security of person and No. 32 (2007) on the right to equality before

courts and tribunals and to a fair trial, States parties derogating from articles 9 and 14 must

ensure that such derogations do not exceed those strictly required by the exigencies of the

actual situation.

72.

The Government of Turkey states that Mr. Kaçmaz has been indicted on the basis of

his statement that he used the encrypted communication programme downloaded by the

Fetullahist Terrorist Organization/Parallel State Structure, that information about the

organization was shared through that programme, and that orders were given to members

through the programme. The Working Group does not assess the sufficiency of evidence

before domestic tribunals. However, it considers that the Government of Turkey has not

given a satisfactory explanation of how these admissions, if they were made of Mr.

Kaçmaz’s free will, demonstrate his membership of an armed terrorist organization or that

he has committed any criminal activity, nor how criminal accusations involving use of an

encrypted communication programme are compatible with the rights to freedom of

expression and association. Moreover, the provisions under which Mr. and Mrs. Kaçmaz

have been charged appear to be very broad and lacking in specificity.20 The Government of

Turkey has not demonstrated that it was necessary and proportional for the authorities to

arrest and prosecute Mr. and Mrs. Kaçmaz under these broad provisions, or that the

measures taken against them were strictly required by the exigencies of the situation.

73.

As the Council of Europe Commissioner for Human Rights has noted:

Despite deep suspicions about its motivations and modus operandi from various

segments of the Turkish society, the Fethullah Gülen movement appears to have

developed over decades and enjoyed, until fairly recently, considerable freedom to

establish a pervasive and respectable presence in all sectors of Turkish society,

including religious institutions, education, civil society and trade unions, media,

finance and business. It is also beyond doubt that many organizations affiliated to

this movement, which were closed after 15 July, were open and legally operating

until that date. There seems to be general agreement that it would be rare for a

Turkish citizen never to have had any contact or dealings with this movement in one

way or another.21

74.

In the light of the above, the Commissioner pointed out that there was a need “when

criminalizing membership and support of this organization, to distinguish between persons

who engaged in illegal activities and those who were sympathizers or supporters of, or

members of legally established entities affiliated with the movement, without being aware

of its readiness to engage in violence”.22

19 See depositary notification C.N.580.2016.TREATIES-IV.4 of 11 August 2016 (notification under

article 4 (3): Turkey), available at https://treaties.un.org/doc/Publication/CN/2016/CN.580.2016-

Eng.pdf.

20 See A/HRC/10/21, paras. 50–55, in which the Working Group set out principles applicable to the

detention of persons accused of acts of terrorism, including that the detention be accompanied by

concrete charges.

21 See memorandum on the human rights implications of the measures taken under the state of

emergency in Turkey, CommDH (2016) 35, 7 October 2016, p. 4. Available at

https://rm.coe.int/16806db6f1.

22 Ibid.

A/HRC/WGAD/2018/11

14

75.

In addition, the Government of Turkey asserts that Mr. and Mrs. Kaçmaz were

afforded their rights, including to be notified of the charges against them, to have their

detention reviewed by a judicial authority, and to have the assistance of legal counsel. The

Government of Turkey asserts that Mr. Kaçmaz confessed that he was a member of the

Fetullahist Terrorist Organization/Parallel State Structure and provided information on its

structure and functioning, and that both Mr. and Mrs. Kaçmaz gave their statements in the

presence of lawyers and before the judge. As noted earlier, the burden of proof is on the

Government to provide evidence, and mere assertions that lawful procedures have been

followed are not sufficient. As the Human Rights Committee has stated in paragraph 41 of

its general comment No. 32, any statement that is not given through the free will of a

defendant is not admissible in criminal proceedings, in accordance with articles 7 (which is

non-derogable, according to article 4 (2) of the Covenant) and 14 (3) (g) of the Covenant.

76.

Accordingly, the Working Group finds that the Government of Turkey has

established neither that there was a legal basis for the arrest and detention of Mr. and Mrs.

Kaçmaz, nor that they were afforded their rights under articles 9, 10 and 11 (1) of the

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

Working Group concludes that their detention was arbitrary under categories I and III. The

Working Group calls on the Government of Turkey to release Mr. and Mrs. Kaçmaz

immediately and unconditionally, and to ensure that the right of the Kaçmaz family under

article 12 (2) of the Covenant to leave Turkey is respected. Given its concerns regarding the

lack of a legal basis for terrorism charges in this case, the Working Group refers this case to

the Special Rapporteur on the promotion and protection of human rights and fundamental

freedoms while countering terrorism, for further consideration.

77.

For similar reasons outlined above in relation to the Government of Pakistan, the

Working Group considers that the Government of Turkey has deprived Mr. and Mrs.

Kaçmaz of their liberty on the basis of their political or other opinion, in violation of

category V.

78.

The Working Group welcomes the release of the two minors into the custody of a

relative following their arrival in Istanbul on 14 October 2017. According to paragraph 17

(a) of its methods of work, the Working Group reserves the right to render an opinion on a

case-by-case basis on whether a deprivation of liberty was arbitrary, notwithstanding the

release of the person(s) concerned. The Working Group considers that it is important to

consider the situation of the two minors after they arrived in Turkey and were held at a

police bureau at the terminal for several hours, as it raises issues relating to the treatment of

minors under the Convention on the Rights of the Child, to which Turkey has been a State

party since 1995.

79.

The source alleges, and the Government of Turkey has not denied, that the two

minors spent several hours at the police bureau at the terminal. The two minors were clearly

detained and not free to leave during that period, as they were blindfolded and not

permitted to speak. As the Working Group has stated in its Deliberation No. 9 concerning

the definition and scope of arbitrary deprivation of liberty under customary international

law, any confinement or retention of an individual accompanied by restriction on his or her

freedom of movement, even if of relatively short duration, may amount to de facto

deprivation of liberty (see A/HRC/22/44, para. 55).23 Given that the two minors are not

under investigation in relation to any criminal matter in Turkey, the Working Group finds

that their brief detention had no legal basis, and that they were not afforded any basic

aspects of due process. As a State party to the Convention on the Rights of the Child since

1995, the Government of Turkey is obliged under article 3 (1) to ensure that the best

interests of the child is a primary consideration. The Government of Turkey has violated its

obligations under article 37 of the Convention to ensure that the detention of the two minors

was not unlawful or arbitrary, and was a measure of last resort. Accordingly, their detention

falls within categories I and III.

23 See also European Court of Human Rights, Belchev v. Bulgaria (application No. 39270/98), judgment

of 8 April 2004, para. 82, in which the Court stated that “justification for any period of detention, no

matter how short, must be convincingly demonstrated by the authorities”.

A/HRC/WGAD/2018/11

15

80.

Furthermore, the Working Group is concerned at the alleged ill-treatment of the

Kaçmaz family, particularly Mr. Kaçmaz, during their flight from Islamabad to Istanbul on

14 October 2017 and upon their arrival at the police bureau at the terminal, where the

family members were blindfolded and not permitted to speak. The Government of Turkey

states that there was no finding of ill-treatment in the forensic reports, and no allegation of

ill-treatment in the statements given by Mr. and Mrs. Kaçmaz during the investigation and

before the judge. The Working Group refers this case to the Special Rapporteur on torture

and other cruel, inhuman or degrading treatment or punishment for further consideration.

81.

In the last two years, the Working Group has noted a significant increase in the

number of cases brought to it concerning arbitrary detention in Turkey. The Working

Group is aware that a large number of individuals were arrested following the attempted

coup of 15 July 2016. With reference to the joint urgent appeal of 19 August 2016 issued

by the Working Group and other special procedure mandate holders, as well as the press

release issued on that date,24 the Working Group urges the Government of Turkey to adhere

to its human rights obligations and to end the state of emergency as soon as possible.

82.

The Working Group would welcome the opportunity to conduct a country visit to

Turkey. Given that a significant period of time has passed since its last visit to Turkey, in

October 2006, the Working Group considers that it is an appropriate time to conduct

another visit. The Working Group recalls that the Government of Turkey issued a standing

invitation to all thematic special procedure mandate holders in March 2001, and looks

forward to a positive response to its country visit requests of 15 November 2016 and 8

November 2017.

Disposition

83.

In the light of the foregoing, the Working Group renders the following opinion:

With regard to Pakistan, the deprivation of liberty of Mesut Kaçmaz, Meral Kaçmaz

and the two minors from 27 September to 14 October 2017, being in contravention

of articles 5, 6, 8, 9 and 10 of the Universal Declaration of Human Rights and

articles 2, 2 (3), 7, 9, 13, 14 and 16 of the International Covenant on Civil and

Political Rights, is arbitrary and falls within categories I, III and V;

With regard to Turkey, the arrest, detention and deportation of the Kaçmaz from

Pakistan to Turkey, as well as the deprivation of liberty of Mesut Kaçmaz and Meral

Kaçmaz from 14 October 2017 to the present, and the deprivation of liberty of the

two minors upon their arrival in Turkey on 14 October 2017, being in contravention

of articles 5, 6, 8, 9, 10 and 11 (1) of the Universal Declaration of Human Rights and

articles 2, 2 (3), 7, 9, 13, 14 and 16 of the International Covenant on Civil and

Political Rights, are all arbitrary and fall within categories I, III and V.

84.

The Working Group requests the Government of Pakistan and the Government of

Turkey to take the steps necessary to remedy the situations of Mesut Kaçmaz, Meral

Kaçmaz and the two minors without delay and bring them into conformity with the relevant

international norms, including those set out in the Universal Declaration of Human Rights

and the Covenant.

85.

The Working Group considers that, taking into account all the circumstances of the

case, the appropriate remedy would be: (a) for the Government of Turkey to release Mr.

and Mrs. Kaçmaz immediately; and (b) for the Government of Pakistan and the

Government of Turkey to accord Mr. and Mrs. Kaçmaz and the two minors an enforceable

right to compensation and other reparations, including for the impact on their psychological

integrity from having been arrested, secretly detained and deported.

24 See TUR 7/2016, available at https://spcommreports.ohchr.org/TMResultsBase/DownLoad

PublicCommunicationFile?gId=3314. See also OHCHR news releases of 19 August 2016, available

at www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=20394&LangID=E, and of 17

January 2018, available at www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?

NewsID=22592&LangID=E.

A/HRC/WGAD/2018/11

16

86.

The Working Group urges the Government of Pakistan and the Government of

Turkey to ensure a full and independent investigation of the circumstances surrounding the

arbitrary deprivation of liberty of Mr. and Mrs. Kaçmaz and the two minors, and to take

appropriate measures against those responsible for the violation of their rights.

87.

In accordance with paragraph 33 (a) of its methods of work, the Working Group

refers the present case to the Special Rapporteur on torture and other cruel, inhuman or

degrading treatment or punishment, and the Special Rapporteur on the promotion and

protection of human rights and fundamental freedoms while countering terrorism, for

appropriate action.

Follow-up procedure

88.

In accordance with paragraph 20 of its methods of work, the Working Group

requests the source and the Governments to provide it with information on action taken in

follow-up to the recommendations made in the present opinion, including:

(a)

Whether Mr. and Mrs. Kaçmaz have been released and, if so, on what date;

(b)

Whether compensation or other reparations have been made to Mr. and Mrs.

Kaçmaz and the two minors;

(c)

Whether an investigation has been conducted into the violation of the rights

of Mr. and Mrs. Kaçmaz and the two minors, and if so, the outcome of the investigation;

(d)

Whether any legislative amendments or changes in practice have been made

to harmonize the laws and practices of Pakistan and of Turkey with their international

obligations in line with the present opinion;

(e)

Whether any other action has been taken to implement the present opinion.

89.

The Governments are invited to inform the Working Group of any difficulties they

may have encountered in implementing the recommendations made in the present opinion

and whether further technical assistance is required, for example, through a visit by the

Working Group.

90.

The Working Group requests the source and the Governments to provide the above

information within six months of the date of the transmission of the present opinion.

However, the Working Group reserves the right to take its own action in follow-up to the

opinion if new concerns in relation to the case are brought to its attention. Such action

would enable the Working Group to inform the Human Rights Council of progress made in

implementing its recommendations, as well as any failure to take action.

91.

The Governments should disseminate through all available means the present

opinion among all stakeholders.

92.

The Working Group recalls that the Human Rights Council has encouraged all

States to cooperate with the Working Group and requested them to take account of its views

and, where necessary, to take appropriate steps to remedy the situation of persons arbitrarily

deprived of their liberty, and to inform the Working Group of the steps they have taken.25

[Adopted on 19 April 2018]

25 See Human Rights Council resolution 33/30, paras. 3 and 7.