A/HRC/WGAD/2018/42

GE.18-17375(E)



Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its eighty-second session, 20–24 August 2018

Opinion No. 42/2018 concerning Mestan Yayman (Turkey)

1.

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

the Commission on Human Rights. In its resolution 1997/50, the Commission extended and

clarified the mandate of the Working Group. 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 11 April 2018 the

Working Group transmitted to the Government of Turkey a communication concerning

Mestan Yayman. The Government replied to the communication on 7 June 2018. The State

is a party 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,

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).

United Nations

A/HRC/WGAD/2018/42

General Assembly

Distr.: General

18 October 2018

Original: English

A/HRC/WGAD/2018/42

2

Submissions

Communication from the source

4.

Mestan Yayman, born in 1967, is a Turkish national. According to the source, Mr.

Yayman used to be a Vice-Governor of the city of Antalya. He was suspended from his

duty as a civil servant on 29 August 2016 and was subsequently dismissed from his job

under Statutory Decree No. 672, issued on 1 September 2016, under which about 50,000

people were dismissed. Mr. Yayman used to reside in his private residence in Antalya.

However, on the same day as his dismissal from public duty, he was taken into custody and

his family had to move to another address in Antalya.

Arrest and detention

5.

According to the source, Mr. Yayman was visiting his family in the city of Mugla on

1 September 2016 when he was taken into custody by officers from Mugla Police

Department. The Department had reportedly been requested by Antalya Police Department

to take Mr. Yayman into custody on the basis of a warrant issued by Antalya District

Attorney’s Office. However, the Mugla police did not show him a warrant when they took

him into custody.

6.

While Mr. Yayman was being taken into custody, Statutory Decree No. 672

dismissing him from public duty was reportedly issued. From Mugla, he was taken to

Antalya police station. During his initial detention period, he was thus not aware of his

sudden dismissal from duty. He was not provided with a reason for his detention until 7

September 2016, and he was not allowed to see anyone during his detention. When he was

first taken into custody, he lost his sense of day and night as the lights were left on

constantly for several days.

7.

Mr. Yayman was reportedly not allowed to see his attorney for the first five days of

his detention. When he was finally allowed to meet her, they could speak only in the

presence of a police officer and in front of a voice recorder.

8.

On 7 September 2016, Mr. Yayman was interrogated by a prosecutor and was

informed of the reason for his detention. An individual had complained about him, stating

that he was a member of the Fethullah terrorist organization. According to the source, the

individual was angry with Mr. Yayman.

9.

Following the interrogation, Mr. Yayman was subsequently released on parole, at

around 8.30 p.m., as the only “crimes” attributed to him were the above-mentioned slander

and the fact that one of his daughters attended a school that was legal, despite being

affiliated with the Gülen movement. However, the following day, on 8 September 2016,

Mr. Yayman was taken into custody again without being given any reason.

10.

On 11 September 2016, Mr. Yayman was called for interrogation by another

prosecutor, who did not wait for Mr. Yayman’s attorney to be present. This time, Mr.

Yayman was accused of attending religious talks given by members of the Gülen

movement up until 2013, based on statements from one individual. The prosecutor was

reportedly very aggressive in his questioning and forced Mr. Yayman to supply names and

confess to the crime of attending religious talks. At the request of the prosecutor, Mr.

Yayman was subsequently arrested by Antalya Second Criminal Court of Peace and sent to

Antalya High Security Prison, where he is still being detained.

11.

According to the source, in September 2016, Mr. Yayman was originally accused of

membership of a terrorist organization because of his supposed attendance at religious talks

in 2013, at a time when the Gülen movement was popular throughout Turkey. The source

notes that the Gülen movement was not recognized as a terrorist organization at that time,

and that the Turkish Criminal Code does not recognize attending religious talks as a crime.

In addition, the “proof” of his affiliation with the Fethullah terrorist organization was

reportedly based on statements from one individual.

12.

On 2 June 2017, 10 months after his arrest, Mr. Yayman was again called by a

prosecutor and interrogated about his supposed use of the encrypted messaging application

ByLock. He was accused of using the ByLock application in December 2014, based on an

A/HRC/WGAD/2018/42

3

intelligence report. According to the source, such a report does not constitute proof under

the Turkish Code of Criminal Procedure.

13.

According to the source, Mr. Yayman is accused of membership of a terrorist

organization, under article 314 of the Turkish Criminal Code. However, the minutes of the

preliminary hearing reportedly do not mention this article, but rather cite the general

reasons for arrest as stipulated in article 100 of the Turkish Code of Criminal Procedure.

14.

In this context, the source notes that mass arrests and detentions continue to take

place following the attempted coup of 15 July 2016. The source reports that, at the time of

submission, there were 57,000 people in detention in Turkey who were charged with or

were waiting to be charged with terrorism.

Trial proceedings

15.

In September 2017, some 12 months after his arrest, Mr. Yayman was presented

with the bill of indictment, and his first trial hearing took place on 7 November 2017. By

that time, he had spent 14 months in detention. However, Mr. Yayman was not released. He

was asked whether he had used the ByLock application. When the judge asked the main

witness whether he had seen Mr. Yayman at any religious talks organized by the Gülen

movement, the witness reportedly replied by saying “No”.

16.

According to the source, Mr. Yayman’s second and last trial hearing took place on 3

January 2018. He was not informed that this hearing would be his last opportunity to plead.

He was simply asked whether he used the ByLock application, to which he replied that he

did not. However, as Mr. Yayman could not provide evidence to disprove the contents of

the Excel file sent by the Turkish intelligence service, and given that the mere existence of

people’s names in lists of “ByLock users” compiled by the intelligence service is sufficient

to find people guilty of the crime of membership of a terrorist organization, he was found

guilty and given a five-year prison sentence.

17.

The source reports that one year was added to the sentence because Mr. Yayman

was a “vice-governor who represented the executive branch of the State”, and the total of

six years was multiplied by 1.5 pursuant to the Turkish Criminal Code, as the Fethullah

terrorist organization is an “armed” terrorist organization. The final sentence of nine years

was then reduced by a sixth pursuant to the Turkish Criminal Code, making his final

sentence seven years and six months.

18.

According to the source, the President of the Court reportedly denied Mr. Yayman’s

request for another expert statement as to whether any ByLock communication content

existed on his telephone. He also denied Mr. Yayman’s request for witnesses, who were

waiting just outside the courtroom, to be heard. Furthermore, he constantly asked Mr.

Yayman to keep his defence short. In the context of the second and final hearing, the Court

reportedly heard the testimony of the main witness in the absence of Mr. Yayman and his

attorney. This witness reportedly clearly stated that he was not complaining about Mr.

Yayman, but Mr. Yayman and his defence were not able to cross-examine him.

19.

The source reports that Mr. Yayman was not allowed to speak to his lawyer before

either trial hearing. He was taken to court at 7 a.m., when it was very cold, and made to

wait in a room for more than 10 hours for his trial to start.

20.

According to the source, the list provided by the intelligence service, which

allegedly proved that Mr. Yayman had used ByLock, merely contains Mr. Yayman’s

telephone number. It does not contain a username or any of the content of the

communication, or any indication of the people with whom he allegedly had contact

through the application.

21.

The source also reports that the media was present at Mr. Yayman’s second and final

trial hearing. As soon as the verdict was announced, slanderous news reportedly spread all

over the Internet, labelling, mocking and belittling Mr. Yayman.

22.

The source states that, due to the principle of non-retroactivity, an application that

Mr. Yayman was said to have used on 20 December 2014 cannot be linked to events that

took place on 15 July 2016, notably an attempted coup about which Mr. Yayman did not

A/HRC/WGAD/2018/42

4

know. In the final verdict, his crime date was indicated as 2 September 2017, and the crime

location as the city of Antalya. The source points to the dilemma in this respect, as Mr.

Yayman did not commit any crime on that date, as he was already in custody. The source

notes that terrorism is a specific crime for which concrete evidence must be provided.

However, Mr. Yayman did not have any intention of committing a terrorist act, yet a simple

WhatsApp-like decrypted application would appear to be sufficient to sentence people to at

least six years and three months in prison, even when the content is non-existent.

23.

The source also notes that, at that time, the ByLock application was not available to

Gülen organization supporters or sympathizers only; it was available to everyone at both

the Google Play and Apple stores. Even if that had not been the case, the Gülen movement

was not recognized as a terrorist organization in 2014, which is when Mr. Yayman was said

to have used the application. At the time of the submission by the source, there was no final

verdict regarding perpetrators of the attempted coup. Therefore, in the Turkish Criminal

Code, there is no such crime as “ByLock usage” (nullum crimen, nulla poena sine lege

praevia).

Applications for release

24.

According to the source, applications were filed for Mr. Yayman’s release each

month. However, all the complaints were rejected without a reason being given. The source

reports that Mr. Yayman’s bank accounts and assets were frozen for a year without any

court decision having been taken.

25.

On 29 December 2017, the Turkish Supreme Court responded to Mr. Yayman’s

application in respect of his prolonged arbitrary arrest. According to the source, the

application for the case to be heard was denied because “usage of ByLock cannot be

assessed as prolonged arbitrary arrest and there is no breach of personal rights”. The source

notes that the Supreme Court decision referred to the bill of indictment, which was written

12 months after Mr. Yayman’s initial detention. The Supreme Court did not investigate Mr.

Yayman’s period of detention prior to the bill of indictment at all.

26.

The source notes that the same response was sent to several other people in Mr.

Yayman’s prison cell with the same decision and reasoning, the only differences being the

names, proving that the decision had been copied and pasted in each case. The source states

that even if the Supreme Court had accepted Mr. Yayman’s requests, the first instance court

would not have complied, as was seen in other cases.

Conditions of detention

27.

According to the source, Mr. Yayman continues to be kept in a prison cell which

was designed for 14 people. For most of the time, however, a total of 48 detainees have

been kept in the cell. Mr. Yayman reportedly had to sleep on the floor for the first three

months of his arrest.

28.

For over a year, Mr. Yayman, as a Fethullah terrorist organization detainee, was

denied the right to speak to his relatives over the telephone. Now he can call his wife for 10

minutes every two weeks. Also, Fethullah terrorist organization detainees can receive only

one visit from their relatives every two months, whereas other detainees can receive a

family visit once a month.

Legal analysis

29.

The source submits that the deprivation of liberty of Mr. Yayman is arbitrary, falling

within categories I, II, III and V of the categories applicable to the consideration of cases by

the Working Group.

Category I

30.

According to the source, article 100 of the Turkish Code of Criminal Procedure

provides for the reasons for arrest. According to this article, the arresting authority has to

prove the necessity and proportionality of an arrest. Moreover, according to article 109 of

A/HRC/WGAD/2018/42

5

the same law, arrest is to be resorted to only when the provisions of judicial control (parole)

are not available or sufficient.

31.

To this end, the source notes that in respect of the detentions following the attempted

coup of 15 July 2016, many individuals were released on parole without having been

arrested, and thousands who were arrested were later released on parole. This situation

reportedly shows that the arrests are being made without sufficient investigation and

reasoning.

32.

The source also refers to article 108 (3) of the Code of Criminal Procedure,

according to which the situation of the accused in detention will be evaluated each month.

However, tens of thousands of individuals who have reportedly been in detention for

months remain in detention, and the number is still rising despite the fact that court

proceedings, for some individuals, have begun. The source highlights that article 108 (3)

was added to the Code of Criminal Procedure so that arrests do not turn into a punishment

rather than being a security measure. However, thousands of individuals are still kept in

detention in relation to the Turkish intelligence service’s list of users of the ByLock

application, which does not constitute a crime under the Turkish Criminal Code.

33.

In relation to the present case, the source submits that other than the Turkish

intelligence service’s list of names, the so-called “arrest list”, the court has failed to show

the content of Mr. Yayman’s supposed chats on ByLock. His deprivation of liberty is thus

arbitrary. There are reportedly over 100,000 ByLock users, and the source submits that it is

not sufficient to refer to the use of an application in order to declare a person a terrorist and

to keep him or her in detention for a period ranging from 7 and a half to 22 and a half years.

The source also reports that the IP addresses of ByLock are said to have been rented from

Baltic Servers, a company that later changed its name to Cherry Servers, in Lithuania.

According to the latter, the ByLock lists could potentially be the result of hacking, which is

inadmissible in Turkish law. The source thus states that the legality of the so-called ByLock

proof is questionable.

34.

The source asserts that, had it not been for the fact that Turkey had declared a state

of emergency, no independent judge would have found a legal basis to keep Mr. Yayman in

detention.

Category II

35.

The source submits that article 18 of the Universal Declaration of Human Rights and

article 18 of the International Covenant on Civil and Political Rights have been breached, as

Mr. Yayman was arrested for the supposed crime of having attended religious talks

organized by the Gülen movement in 2013.

36.

The source also submits that article 19 of the Universal Declaration of Human

Rights and article 19 of the Covenant have been breached. Mr. Yayman has been accused

of using the ByLock communication application, the use of which was legal. Furthermore,

he was reportedly accused of having used this application in December 2014. In this

respect, the source notes that it is highly illogical for a supposed chat that took place in

December 2014 to be related to an attempted coup in July 2016.

37.

The source further submits that article 7 of the Universal Declaration of Human

Rights and article 26 of the Covenant have also been breached. All individuals, including

Mr. Yayman, who were arrested on the basis that they were accused of belonging to the

Fethullah terrorist organization are discriminated against. They do not have access to

education in detention, they are not allowed to exchange letters, and the visit allowance

allocated to them is limited compared to other inmates. The source also reports that they are

constantly subjected to libellous media statements and, the minute they are taken into

custody, immediately labelled as “Feotist”, which is short for Fethullah terrorist

organization member. The source also notes that individuals charged with terrorism have to

wear a prison suit, whereas those charged with other crimes have no such obligation.

38.

According to the source, article 13 of the Universal Declaration of Human Rights

and article 12 of the Covenant have also been breached. When Mr. Yayman was taken into

custody in relation to the Fethullah terrorist organization, his passport and those of his

A/HRC/WGAD/2018/42

6

entire family were reportedly confiscated, without any judicial decision having been handed

down. In addition, article 21 of the Universal Declaration of Human Rights and article 25 of

the Covenant have been breached, because Mr. Yayman lost his job as a civil servant, along

with his right to social security.

Category III

39.

The source submits that articles 9 and 10 of the Universal Declaration of Human

Rights and articles 9 and 14 of the Covenant have also been breached.

40.

The source notes that for over a year, the arrests have continued in Turkey and, at

the time of submission, approximately 60,000 people from all sectors of society had been

arrested on suspicion of being affiliated with the Fethullah terrorist organization. Acts that

cannot be counted as crimes are now reportedly regarded as crimes and retroactive crimes

are being created. According to the source, it is now almost the rule in Turkey to arrest

people and then make them wait for at least six months before they can plead their case

before a judge. However, those who are lucky enough to stand trial after six months are

outnumbered by those who are not. In the case of Mr. Yayman, he was in detention for

more than a year before his trial.

41.

The source reports that under Turkish law, there are two conditions for arrest, which

must exist at the same time: strong evidence and the likelihood that the detainee will

escape. In the case of Mr. Yayman, parole provisions could have been applied as all his

assets are in Turkey and did not have any intention of escaping.

42.

According to the source, following the attempted coup of 15 July 2016, a quarter of

the judges and prosecutors in Turkey were dismissed and arrested. The source highlights

that the judiciary is not independent in Turkey and is allegedly under threat from the

Government, which is using the state of emergency for its own agenda. Members of the

ruling party are almost always present at trials, making it even more difficult for judges to

decide on cases independently. Judges who decide to release individuals accused of

affiliation with the Fethullah terrorist organization reportedly face threats or have been

indefinitely suspended following their decisions.

43.

The source also reports that, until very recently, detainees at the Antalya High

Security Prison, including Mr. Yayman, could see their attorneys only once a week for 20

minutes, and a guard with a voice recorder would be present during the meetings.

Sometimes attorneys had to wait five hours before they could see their client. Mr.

Yayman’s attorney is based in another city and she cannot travel to Antalya every week.

The source reports that one week, she went on a Monday and was denied the possibility of

seeing her client as the attorney visiting day had been moved to Tuesday.

44.

The source also submits that in order to become a member of a terrorist

organization, there first needs to be a terrorist organization. However, in the present case,

the Gülen movement was not recognized as a terrorist organization when Mr. Yayman

supposedly committed the crime of attending a religious talk and subsequently, when he

was accused of using the ByLock application. He was reportedly interrogated in June 2016

for supposedly having used that application back in 2014. Like thousands of other people,

Mr. Yayman reportedly learned about the application on television.

Category V

45.

Lastly, the source submits that Mr. Yayman was discriminated against for having a

supposed affiliation to a religious group. One of his daughters was attending Toros Middle

School, which he was asked about during his first interrogation and which is among the

“terrorism criteria” designated by the Government following the attempted coup.

Response from the Government

46.

On 11 April 2018, the Working Group transmitted the allegations from the source to

the Government under its regular communications procedure. The Working Group

requested the Government to provide, by 11 June 2018, detailed information about the

current situation of Mr. Yayman and to clarify the legal provisions justifying his continued

A/HRC/WGAD/2018/42

7

detention, as well as its compatibility with the obligations of Turkey under international

human rights law, particularly with regard to the treaties ratified by the State. Moreover, the

Working Group called upon the Government to ensure Mr. Yayman’s physical and mental

integrity.

47.

In its reply of 7 June 2018, the Government refers to its previous responses to

communications from the Working Group and underlines the terrorism threats faced by

Turkey, the grave nature of the attempted coup of 15 July 2016 and the measures taken. For

reference, the Government submits background information with regard to the Fethullah

terrorist organization and the measures taken against it, along with other terrorist

organizations.1

Circumstances of the case

48.

In relation to the present case, the Government reports that Mr. Yayman was

dismissed on 25 August 2016 by the decision of the General Directorate of Security of the

Ministry of the Interior because of the link with the Fethullah terrorist organization, and

placed in police custody on the orders of the Attorney General of Antalya. While in

custody, all his rights were read to him, one by one, and he had the right to inform his

relatives. In addition, while in custody, he met with his lawyer.

49.

Mr. Yayman was detained by Antalya Police Court on the ground of membership of

a terrorist organization. In its decision, the court took into account the following: there were

concrete facts; the state of the evidence; the statements against the accused, which

demonstrated the existence of a strong suspicion of commission of the offence; the court

was continuing to collect evidence and analyse the digital evidence; the high likelihood that

the evidence would be tainted; and the nature of the offence. The court therefore decided to

detain Mr. Yayman.

50.

The decision to detain Mr. Yayman was examined several times by Antalya Police

Court, including on 12 October 2016, 10 November 2016, 9 December 2016, 9 January

2017, 9 February 2017, 8 March 2017, 7 April 2017, 6 May 2017, 9 June 2017, 3 July 2017

and 3 August 2017. Given the nature of the offence of which Mr. Yayman was accused; the

documents and information in the file; the fact that the competent authorities had still to

collect information; the ceiling of the penalty provided; the finding of use of ByLock; and

since the offence was cited in article 101/3-a-11, the court decided to extend Mr. Yayman’s

detention.

51.

The Government states that Mr. Yayman was given the opportunity to appeal to the

competent courts to challenge the decisions to extend his period of detention, and his

motions were not considered well founded in law and fact and were dismissed.

52.

With regard to the allegations concerning Mr. Yayman’s conditions of detention, the

Government notes that he was detained in a unit for a total of 28 prisoners, including seven

rooms of 12.45 m² each. These units comply with the criteria of the European Committee

for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and the

United Nations Subcommittee on Prevention of Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment.

53.

Mr. Yayman reportedly requested an interview with the Deputy Director of the

prison, which was granted to him on 19 February 2018. Since then, he has not sent any

other request with regard to anything. In addition, he has benefited from the prison library

and according to the library register, he has already borrowed 36 books.

54.

The Government refers to the case law of the European Court of Human Rights,

whereby a reasonable suspicion and plausible reasons are necessary in order to deprive a

person suspected of having committed a crime of his or her freedom. This condition must

exist at each extension of detention. The Government underlines that Mr. Yayman was

1 For full background information, see, for example, opinions No. 38/2017, paras. 22–30, and No.

44/2018, paras. 42–49.

A/HRC/WGAD/2018/42

8

detained because there were strong and reasonable suspicions about the commission of the

offence by him.

55.

The Government also notes that, in accordance with the case law of the European

Court of Human Rights concerning article 5 (1) (c) of the Convention for the Protection of

Human Rights and Fundamental Freedoms (European Convention on Human Rights), for

the extension of the period of detention, it is necessary not only that a reasonable suspicion

continues to exist at the time of the decision to extend, but there should also be a public

interest justifying the deprivation of liberty. In the present case, there was sufficiently

tangible evidence to trigger a public action, which resulted in a conviction on 3 January

2018 by the Tenth Chamber of the Assize Court of Antalya.

56.

As a result, given the existence of reasonable suspicions, hard evidence and the

declaration of a state of emergency in Turkey, the decision to arrest and detain Mr. Yayman

is fully in line with the jurisprudence of the European Court of Human Rights and the

obligations of Turkey under the human rights conventions to which it is a party.

57.

The Government notes the allegations made by the source that Mr. Yayman was not

informed that the second hearing on 3 January 2018 was the last one, in order to make his

final argument, and that he was sentenced to five years’ imprisonment simply on the basis

of the fact that his name was on the ByLock user list established by the Turkish intelligence

service. In this respect, the Government reports that Mr. Yayman was sentenced following

hearings held on 7 November 2017 and 3 January 2018. However, contrary to the

allegations, the Tenth Chamber of the Assize Court of Antalya not only took into account

the claims of the various parties, including Mr. Yayman, but also all the evidence submitted

by the Attorney General and obtained by judicial means. This included the record of the

accused’s conversations through the ByLock system, which is a secret and coded

communication system that was used exclusively by and between members of the Fethullah

terrorist organization.

58.

After evaluating the documents and evidence obtained and hearing the witnesses, the

court first sentenced him to six years in prison based on the fact that the offence was a

terrorist offence pursuant to article 5 (1) of Law No. 3113. His sentence was increased by

half and he was sentenced to nine years in prison. Given his conduct during the trial and the

effects of the sentence on the future of the defendant, a reduction of a sixth of the sentence

was applied. He was finally sentenced to seven and a half years’ imprisonment with the

deduction of time spent in prison.

59.

According to the Government, Mr. Yayman appealed this decision before the

Appeal Court of Antalya, where his petition is registered under number 2018/815 of the

Second Criminal Chamber of Antalya.

60.

The Government underlines that, in view of the information provided by the

authorities, it is clear that Mr. Yayman has submitted his case to the Working Group

without having used his right to apply to the Turkish courts and exhausted existing and

effective remedies in Turkey.

61.

The Government refers to a number of effective legal remedies available in Turkey

to annul or rectify any judicial or administrative decisions which have or may violate the

rights of persons within its territory. These include articles 91 (5) and 141 of the Code of

Criminal Procedure, the Law on Administrative Procedure No. 2577 and article 48 of the

Constitution, following its amendment in 2010.

62.

In relation to Mr. Yayman’s appeal, the Government reports that the Second

Criminal Chamber of Antalya, as the Appeals Court in his case, has the possibility either to

judge the case in fact and in law, to confirm the decision of the Assize Court or to overturn

that decision and to remit the case to the courts of first instance. Moreover, in case of

rejection of his appeal and confirmation of the decision by the Assize Court, Mr. Yayman

still has the cassation route to enforce his right. However, he preferred to address the

Working Group without exhausting the existing and effective remedies.

63.

In conclusion, the Government considers that Mr. Yayman’s allegations are

unfounded and that Turkey has acted in accordance with its domestic law and the human

rights conventions to which it is a party. It also considers that there are effective remedies

A/HRC/WGAD/2018/42

9

in the country and that Mr. Yayman should have exhausted those remedies before referring

the case to the Working Group, in the event that he did not obtain satisfaction for the

alleged violations of his rights.

64.

In view of the foregoing, the Government requests the Working Group to reject Mr.

Yayman’s unfounded allegations and to dismiss them on the basis of non-exhaustion of

domestic remedies and non-violation of his rights.

Further comments from the source

65.

On 12 June 2018, the Working Group sent the Government’s reply to the source for

any further comments. The source did not provide further comments.

Discussion

66.

The Working Group thanks the source and the Government for their submissions.

The Working Group appreciates the cooperation and engagement of both parties in this

matter.

67.

At the outset, the Working Group would like to stress that the procedural rules to

handle communications from sources and responses of Governments are contained in its

methods of work (A/HRC/36/38) and in no other international instrument that the parties

might consider applicable. In that regard, the Working Group would like to clarify that in

its methods of work there is no rule that impedes the consideration of communications due

to the lack of exhaustion of domestic remedies in the country concerned. Sources have no

obligation therefore to exhaust domestic remedies before sending a communication to the

Working Group.2

68.

As a further preliminary issue, the Working Group notes that the Government of

Turkey argues that the situation of Mr. Yayman 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 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.3

69.

While acknowledging the notification of those derogations, the Working Group

emphasizes that, in the discharge of its mandate, it is 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 case of Mr. Yayman. 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.

70.

The source has submitted that the detention of Mr. Yayman is arbitrary and falls

under categories I, II, III and V, while the Government denies these allegations. The

Working Group shall proceed to examine each of the categories in turn.

71.

The source has submitted that the arrest and subsequent detention of Mr. Yayman is

arbitrary and falls under category I. The court noted that Mr. Yayman was included on the

Turkish intelligence service’s list of names, the so-called arrest list, but it failed to show the

content of his supposed chats on ByLock. The source submits that ByLock is reportedly

said to have over 100,000 users, and it is thus not sufficient to refer to the use of an

2 See opinions Nos. 11/2000, 19/2013, 38/2017, 8/2018, 43/2018 and 44/2018.

3 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.

A/HRC/WGAD/2018/42

10

application in order to declare a person a terrorist and to keep him or her in detention for a

period ranging from 7 and a half to 22 and a half years.

72.

The Working Group recalls that it considers a detention to be arbitrary under

category I if the detention lacks legal basis. In the present case, the Working Group must

therefore examine the circumstances of Mr. Yayman’s arrest. The Working Group notes

that Mr. Yayman was first arrested on 1 September 2016. While there was allegedly a

warrant issued for his arrest, he was not shown the warrant and he was in fact not provided

with any reasons for his arrest until 7 September 2016. He was released on 7 September,

but then rearrested on 8 September 2016 and no reasons for this were given by the

authorities until he was presented before a prosecutor on 11 September 2016. Mr. Yayman

has remained in custody since 8 September 2016.

73.

The Government argues that while in custody, Mr. Yayman was read his rights, one

by one, and advised of his right to inform his relatives. However, the Government has not

specified the date on which Mr. Yayman was taken into custody, only that he was

dismissed on 25 August 2016 and taken into custody thereafter.

74.

The Working Group recalls that article 9 (2) of the Covenant requires that anyone

who is arrested is not only informed of the reasons for arrest at that time but also promptly

informed of any charges against them. The right to be promptly informed of charges

concerns notice of criminal charges; as the Human Rights Committee has noted in its

general comment No. 35, this right applies in connection with ordinary criminal

prosecutions and also in connection with military prosecutions or other special regimes

directed at criminal punishment (para. 29).

75.

The Working Group observes that six days passed between Mr. Yayman’s first

arrest and the day he was notified of the reasons for his arrest; and in the case of the second

arrest, four days passed before he received the notification. The Government argues that

while in custody, Mr. Yayman was read his rights, one by one. However, the Working

Group finds that a recital of rights is not the same as informing the person of the reasons for

his or her arrest and/or of the charges against him or her.

76.

While it appears that a warrant had been issued at least for the first arrest, it was not

shown to Mr. Yayman, who was thus unaware of the reasons for his arrest. Equally, when

Mr. Yayman was arrested for the second time, no reasons for that second arrest were

provided. In other words, the Turkish authorities failed twice to formally invoke a legal

basis justifying the detention of Mr. Yayman. The Working Group therefore concludes that

there has been a breach of article 9 (2) of the Covenant.

77.

Furthermore, in order to establish that a detention is indeed legal, anyone who is

detained has the right to challenge the legality of his or her detention before a court, as

enshrined in article 9 (4) of the Covenant. The Working Group wishes to recall that,

according to the 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, the right to challenge the lawfulness of detention before a court is a self-standing

human right, which is essential to preserve legality in a democratic society (paras. 2–3).

This right, which is in fact a peremptory norm of international law, applies to all forms of

deprivation of liberty (para. 11) and all situations of deprivation of liberty, including not

only to detention for purposes of criminal proceedings but also to situations of detention

under administrative and other fields of law, including military detention, security

detention, detention under counter-terrorism measures, involuntary confinement in medical

or psychiatric facilities, migration detention, detention for extradition, arbitrary arrests,

house arrest, solitary confinement, detention for vagrancy or drug addiction, and detention

of children for educational purposes (guideline 1, para. 47 (a)). Moreover, it also applies

irrespective of the place of detention or the legal terminology used in the legislation. Any

form of deprivation of liberty on any ground must be subject to effective oversight and

control by the judiciary (ibid., para. 47 (b)).

78.

The Working Group underlines that, in order to ensure the effective exercise of this

right, detained persons should have access, from the moment of arrest, to legal assistance

by counsel of their choice, as stipulated in the above-mentioned Principles and Guidelines

(principle 9, paras. 12–15). The Government argues that Mr. Yayman met with his lawyer

A/HRC/WGAD/2018/42

11

while in custody, but it has not provided the date of that meeting. The Working Group thus

concludes that the right to have access to a lawyer was denied to Mr. Yayman for at least

the first five days of his detention. This had a serious and adverse effect on his ability to

effectively exercise his right to challenge the legality of his detention, denying his rights

under article 9 (4) of the Covenant.

79.

The Working Group therefore concludes that, since the arrest and detention of Mr.

Yayman took place without presenting him with an arrest warrant on two occasions, since

no formal charges were brought against him for six days (in relation to the first arrest) and

four days (in relation to the second arrest), and since he was effectively prevented from

exercising his right to challenge the legality of detention, his arrest and detention are

arbitrary and fall under category I.

80.

The source has further argued that the detention of Mr. Yayman is arbitrary and falls

under category II as he has been arrested and tried for having attended religious talks

organized by the Gülen movement in 2013 and for having used the ByLock communication

application.

81.

The Government in turn has argued that Mr. Yayman was sentenced following

hearings held on 7 November 2017 and 3 January 2018, noting that the Tenth Chamber of

the Assize Court of Antalya not only took into account the claims of the various parties,

including Mr. Yayman, but also all the evidence submitted by the Attorney General and

obtained by judicial means. In relation to the latter, the Government has argued that the

tribunal requested and obtained the record of the accused’s conversations through the

ByLock system.

82.

The Working Group is puzzled by the Government’s submission that the tribunal

was able to hear and assess all this complex evidence and these submissions from all the

parties cited by the Government and to produce a reasoned judgment, given that Mr.

Yayman was sentenced during the second of the two hearings, on 3 January 2018, to a

rather lengthy prison term of seven and a half years.

83.

The Working Group takes note of the report of the Office of the United Nations

High Commissioner on Human Rights (OHCHR) on the impact of the state of emergency

on human rights in Turkey, including an update on the south-east: January–December 2017.

In the report, OHCHR examined the impact of various decrees issued by the Government of

Turkey which served as a basis for the dismissal of large numbers of security, military and

police officers, teachers, academics, civil servants and health sector personnel. It concluded

that:

the decrees do not establish clear criteria used to assess links of the dismissed

individuals to the Gülenist network. As a result, dismissals have been ordered on the

basis of a combination of various elements, such as making monetary contributions

to the Asya bank and other companies of the “Parallel State Organization”, being a

member of a trade union or association linked to the Gülenist network, or using the

messenger application ByLock and other encrypted messaging programmes. The

dismissals may also be based on reports by the police or secret service about some

individuals, analysis of social media contacts, donations, websites visited, or sending

children to schools associated with the Gülenist network. Information received from

colleagues or neighbours, or subscription to Gülenist periodicals could also be used

as criteria for dismissals (para. 65).

84.

The Working Group notes that the case of Mr. Yayman appears to follow the pattern

described in that report.

85.

The Working Group is mindful of the state of emergency that was declared in

Turkey. However, while the National Security Council of Turkey had already designated

the Fethullah terrorist organization a terrorist organization in 2015, the fact that this

organization is prepared to use violence had not become apparent to Turkish society at

large until the attempted coup in July 2016. In this respect, the Working Group refers to a

A/HRC/WGAD/2018/42

12

memorandum of the Council of Europe Commissioner for Human Rights. 4 The

Commissioner pointed out that there is a need “when criminalising membership and

support of this organisation, to distinguish between persons who engaged in illegal

activities and those who were sympathisers or supporters of, or members of legally

established entities affiliated with the movement, without being aware of its readiness to

engage in violence”.5

86.

The Working Group observes that the core of the allegations against Mr. Yayman is

his alleged alliance with the Gülen group in 2013, which is said to have manifested itself

through his attendance at meetings of the group at that time and his use of the ByLock

communications application. However, the Government has failed to show any illegal

actions in Mr. Yayman’s conduct which could be construed as Mr. Yayman being a

supporter of a criminal organization. His attendance at the talks organized by the Gülen

group in 2013 took place well before this organization was designated as a terrorist

organization by the Turkish authorities some two years later, and the Government has not

shown any evidence that Mr. Yayman’s attendance led to any criminal actions.

87.

The Working Group also notes the failure on behalf of the Government to show how

the mere use of such a regular communication application as ByLock by Mr. Yayman

constituted an illegal criminal activity. While the Government has argued that the tribunal

requested and obtained the record of the accused’s conversations through the Bylock

system, it failed to specify how these conversations could have been construed as criminal

activity. Noting the widespread reach of the Gülen movement, as documented in the report

of the Council of Europe Commissioner for Human Rights, “it would be rare for a Turkish

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

another”.6

88.

In fact, it appears to the Working Group that even if Mr. Yayman did use the

ByLock application, an allegation that he denies, it would have merely constituted exercise

of his right to freedom of opinion and freedom of expression. The Working Group notes

that, as stated by the Human Rights Committee in its general comment No. 34 (2011) on

the freedoms of opinion and expression, freedom of opinion and freedom of expression are

indispensable conditions for the full development of the person. They are essential for any

society. They constitute the foundation stone for every free and democratic society (para.

2). No derogations can be made to freedom of opinion simply because it can never become

necessary to derogate from it during a state of emergency (para. 5).

89.

The Working Group notes that freedom of expression includes both the right to seek,

receive and impart information and ideas of all kinds regardless of frontiers, and the

expression and receipt of communications of every form of idea and opinion capable of

transmission to others, including political opinions (para. 11). Moreover, article 19 (2) of

the Covenant protects all forms of expression and the means of their dissemination,

including all forms of audiovisual, electronic and Internet-based modes of expression (para.

12).

90.

In addition, the Working Group notes that the Government cannot claim the

restriction to freedom of expression provided for in article 19 (3) of the Covenant. When a

State party imposes restrictions on the exercise of freedom of expression, the restrictions

may not put in jeopardy the right itself (para. 21). Paragraph 3 lays down specific

conditions and it is only subject to these conditions that restrictions may be imposed: the

restrictions must be “provided by law”; they may only be imposed for one of the purposes

set out in subparagraphs (a) and (b) of paragraph 3; and they must conform to the strict tests

of necessity and proportionality. Restrictions must be applied only for those purposes for

which they were prescribed and must be directly related to the specific need on which they

are predicated (para. 4).

4 Council of Europe, Commissioner for Human Rights, “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.

5 Ibid, para. 21.

6 Ibid., para. 20.

A/HRC/WGAD/2018/42

13

91.

The Working Group observes that the Government has failed to explain how the

restrictions to the freedom of expression imposed upon Mr. Yayman comply with the

provisions of article 19 (3).

92.

In relation to Mr. Yayman’s attendance of the meetings of the Gülen group in 2013,

the Working Group once again observes the failure on behalf of the Government to specify

how mere attendance at peaceful and, at that time, legitimate meetings breached the right to

freedom of peaceful assembly and association and was contrary to articles 21 and 22 of the

Covenant.

93.

The Working Group therefore concludes that the arrest and detention of Mr.

Yayman resulted from his exercise of the rights guaranteed under articles 19, 21 and 22 of

the Covenant, falling under category II.

94.

Given its finding that the deprivation of liberty of Mr. Yayman is arbitrary under

category II, the Working Group wishes to emphasize that no trial of Mr. Yayman should

have taken place. However, the trial did take place and the source has submitted that there

were severe violations of Mr. Yayman’s fair trial rights and that his subsequent detention

therefore falls under category III.

95.

The source has submitted that the detention of Mr. Yayman is arbitrary and falls

under category III since he was charged and convicted retroactively; since his trial was

unduly delayed; since the courts that examine cases concerning individuals with alleged

links to the Gülen group are not independent; and since Mr. Yayman was denied the

opportunity to communicate privately with his lawyer. The Government denies these

allegations.

96.

The Working Group notes the allegation made by the source that the court

examining the case of Mr. Yayman lacked the requisite degree of independence. However,

the source has not furnished any specific examples that would substantiate this claim, but

rather has made broad allegations of a general nature that since the attempted coup of 15

July 2016, a quarter of judges and prosecutors in Turkey have been dismissed and arrested

and that since then, the judiciary has lacked independence. The Working Group is unable to

accept such a sweeping statement. In the absence of specific information from the source as

to how the lack of independence manifested itself in the court that examined the case of Mr.

Yayman, the Working Group is unable to reach any conclusions on the matter.

97.

The Working Group is also unable to reach any conclusion on the submission

regarding the retroactive application of the law in the case of Mr. Yayman as, by the

source’s own submission, no new crime of using the ByLock application has been

introduced in the Criminal Code of Turkey. Mr. Yayman has rather been charged for

alleged terrorist activities, which is part of the criminal law in Turkey.

98.

The Working Group notes the allegation by the source that during Mr. Yayman’s

trial, the judge denied his request for another expert statement as to whether the ByLock

application was found on his telephone. The judge also allegedly denied witnesses on

behalf of Mr. Yayman the right to be heard. The Government did not address these

allegations directly, although it had the opportunity to do so.

99.

At the outset, the Working Group notes that prior to the trial proceedings, Mr.

Yayman was denied the possibility to meet with his lawyer in private, as a guard with a

tape recorder was always present during those meetings. In this respect, the Working Group

notes that, as indicated by the Human Rights Committee in its general comment No. 32, the

right to communicate with counsel, as enshrined in article 14 (3) (b) of the Covenant,

entails the requirement that legal counsels should be able to meet their clients in private and

to communicate with the accused in conditions that fully respect the confidentiality of their

communications (para. 34).7 That right was denied to Mr. Yayman. Moreover, the meetings

with his lawyer were restricted to a mere 20 minutes, a time period so short that it cannot be

7 See also Khomidov v. Tajikistan (CCPR/C/81/D/1117/2002), para. 6.4; Siragev v. Uzbekistan

(CCPR/C/85/D/907/2000) para. 6.3; and Gridin v. Russian Federation (CCPR/C/69/D/770/1997 and

Corr.1), para. 8.5.

A/HRC/WGAD/2018/42

14

said to satisfy the requirements of article 14 (3) (b). In addition, once the trial proceedings

commenced, Mr. Yayman was prevented from speaking to his lawyer before both trial

hearings, which is a further violation of article 14 (3) (b) of the Covenant.

100.

The Working Group also recalls that, as the Human Rights Committee stated in its

general comment No. 32, article 14 (3) (e) of the Covenant provides for the right to have

witnesses admitted that are relevant for the defence and to be given a proper opportunity to

question and challenge witnesses against them at some stage of the proceedings (para. 39).

The Working Group thus considers that there have been serious prima facie breaches of Mr.

Yayman’s rights under article 14 (3) (e) of the Covenant as well.

101.

In addition, the Working Group observes that the trial judge made requests for the

defence to keep defence short and that the court heard the testimony from a key witness in

the absence of both Mr. Yayman and his lawyer. The Working Group especially notes that

the Government has failed to provide any reasons as to why the key witness was heard

without the presence of Mr. Yayman and his lawyer. This is a further serious denial of Mr.

Yayman’s rights under article14 (3) (e) of the Covenant.

102.

The Working Group also notes that the submissions made by the source in relation

to the fair trial rights violations in the case of Mr. Yayman appear to closely follow a

general pattern as evidenced by the Commissioner for Human Rights of the Council of

Europe, who noted that “the persons in question [those dismissed under the decrees

ordering the dismissals] were not provided with evidence against them and were unable to

defend themselves in an adversarial manner in many cases”.8

103.

The Working Group therefore concludes that there has been partial non-observance

of the international norms relating to the right to a fair trial in the case of Mr. Yayman, as

he was denied the right to adequate time and facilities to prepare for his defence and was

prevented from presenting evidence and examining witnesses on his behalf. The Working

Group finds that this partial non-observance was of such gravity as to give his deprivation

of liberty an arbitrary character (category III).

104.

Lastly, the source has submitted that the detention of Mr. Yayman is arbitrary and

falls under category V as his detention and trial were due to his alleged links with the Gülen

group. The Government contests this, arguing that while the detention and trial of Mr.

Yayman were indeed due to his affiliation with the Gülen group, this was not

discriminatory as the group is a terrorist organization.

105.

The Working Group notes that Mr. Yayman himself had not previously been

prosecuted due to his links with the Gülen group or with any other religious organization.

However, the Working Group is mindful of the large number of cases being brought before

it in relation to Turkey.9 It is also mindful of the pattern that these cases follow, which

corresponds to the pattern documented in the above-mentioned reports of OHCHR and the

Commissioner for Human Rights of the Council of Europe.

106.

The Working Group is aware that a large number of individuals were arrested

following the attempted coup in July 2016. On 19 August 2016, the Working Group, in

association with other United Nations human rights experts, sent a joint urgent appeal10 and

subsequently issued a press release on the same date.11 The experts noted that, since the

attempted coup on 15 July, and in particular since the declaration of a state of emergency

on 20 July, Turkish society had seen an escalation of detentions and purges, particularly in

8 Council of Europe, Commissioner for Human Rights, “Memorandum on the human rights

implications of the measures taken under the state of emergency in Turkey”, paras. 23–24 and 26.

9 See opinions Nos. 1/2017, 38/2017, 41/2017, 43/2018 and 44/2018. See also the joint urgent appeal of

4 May 2018 on behalf of 13 individuals (UA TUR 7/2018), available at

https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=23766.

10 See https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunication

File?gId=3314.

11 See www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=20285&LangID=E. On 17

January 2018, the experts issued another press release in relation to the state of emergency, available

at www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=22592&LangID=E.

A/HRC/WGAD/2018/42

15

the education, media, military and justice sectors. In addition, allegations of torture and

poor detention conditions had been raised following legislative provisions that enabled

wide and indiscriminate administrative powers that affected core human rights. The experts,

while understanding the sense of crisis in Turkey, urged the Government to uphold its

obligations under international human rights law, even during the declared emergency

following the attempted coup.

107.

The Working Group notes that the present case is but one of a number of cases

concerning individuals with alleged links to the Gülen group that have come before it in the

past 18 months.12 In all these cases, the connection between the individuals concerned and

the Gülen group has not been one of active membership and support of the group and its

criminal activities but rather, as described by the Council of Europe Commissioner for

Human Rights, activities of “those who were sympathisers or supporters of, or members of

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

readiness to engage in violence”.13 In all those cases, the Working Group has found the

detention of the individuals concerned to be arbitrary and it thus appears to the Working

Group that a pattern is emerging whereby those who have been linked to the group are

being targeted, despite never having been active members of the group or supporters of its

criminal activities. The Working Group therefore considers that the detention of Mr.

Yayman was arbitrary since it constitutes discrimination on the basis of political or other

opinion or status and falls under category V.

108.

The Working Group wishes to reiterate the position of the Council of Europe

Commissioner for Human Rights on the need for Turkey to urgently revert “to ordinary

procedures and safeguards, by ending the state of emergency as soon as possible. Until

then, the authorities should start rolling back the deviations from such procedures and

safeguards as quickly as possible, through a nuanced, sector-by-sector and case-by-case

approach”.14 The Working Group notes that this position is echoed in the recent, above-

mentioned OHCHR report.

109.

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 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

110.

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

The deprivation of liberty of Mestan Yayman, being in contravention of articles 3, 9,

10, 19 and 20 of the Universal Declaration of Human Rights and of articles 9, 14,

19, 21, 22 and 26 of the International Covenant on Civil and Political Rights, is

arbitrary and falls within categories I, II, III and V.

111.

The Working Group requests the Government of Turkey to take the steps necessary

to remedy the situation of Mr. Yayman without delay and bring it into conformity with the

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

Rights and the International Covenant on Civil and Political Rights.

112.

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

case, the appropriate remedy would be to release Mr. Yayman immediately and accord him

an enforceable right to compensation and other reparations, in accordance with

international law.

12 See opinions Nos. 1/2017, 38/2017, 41/2017, 43/2018 and 44/2018. See also the joint urgent appeal of

4 May 2018 on behalf of 13 individuals (UA TUR 7/2018).

13 Council of Europe, Commissioner for Human Rights, “Memorandum on the human rights

implications of the measures taken under the state of emergency in Turkey”, p. 4.

14 Ibid, p. 10.

A/HRC/WGAD/2018/42

16

113.

The Working Group urges the Government to ensure a full and independent

investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.

Yayman and to take appropriate measures against those responsible for the violation of his

rights.

114.

The Working Group requests the Government to disseminate the present opinion

through all available means and as widely as possible.

Follow-up procedure

115.

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

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

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

(a)

Whether Mr. Yayman has been released and, if so, on what date;

(b)

Whether compensation or other reparations have been made to Mr. Yayman;

(c)

Whether an investigation has been conducted into the violation of Mr.

Yayman’s rights 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 Turkey with its international obligations in line with

the present opinion;

(e)

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

116.

The Government is invited to inform the Working Group of any difficulties it 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.

117.

The Working Group requests the source and the Government to provide the above-

mentioned information within six months of the date of 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.

118.

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

States to cooperate with the Working Group and has 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.15

[Adopted on 21 August 2018]

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