A/HRC/WGAD/2018/78, Opinion no. 78/2018 concerning Hamza Yaman (Turkey)

Opinion; Subjects: TÃRKÄ°YE, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]

Volltext (verifizierbarer Originaltext)

GE.19-01525(E)



Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its eighty-third session, 19–23 November 2018

Opinion No. 78/2018 concerning Hamza Yaman (Turkey)

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.

In accordance with its methods of work (A/HRC/36/38), on 15 August 2018, the

Working Group transmitted to the Government of Turkey a communication concerning

Hamza Yaman. The Government replied to the communication on 26 October 2018. Turkey

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

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/2018/78

General Assembly

Distr.: General

31 January 2019

Original: English

A/HRC/WGAD/2018/78

Submissions

Communication from the source

Mr. Yaman is a 51-year-old Turkish national who usually lives in Kirikkale, Turkey,

in a residence allocated to him by the State. Mr. Yaman graduated from the Ankara Faculty

of Law in 1987. He has been a judge for 28 years, including since 2011 as a member of the

Court of Cassation, where he dealt with cases involving terrorism and organized crime.

Arrest and detention

The source reports that, following the attempted coup d’état in Turkey on 15 July

2016, 160,000 people were taken into custody, 60,000 people were detained and more than

100,000 civil servants were dismissed from their positions. In addition, 4,500 judges and

prosecutors were dismissed, 3,000 of whom were detained.

On 18 July 2016, at around 3.45 a.m., Mr. Yaman was arrested at his residence by the

Ankara Security Directorate. According to the source, Mr. Yaman was told that his arrest had

been carried out on the instruction of the Ankara Chief Public Prosecutor’s Office, and that

he had been suspected of having violated articles 309, 311, 313 and 314 of the Turkish

Criminal Code. However, he was not provided with written notification of the instruction.

The source alleges that Mr. Yaman was taken into custody without having been shown the

instruction of the Public Prosecutor, which in fact was only issued after the fact. The

instruction was made following an investigation initiated by the Public Prosecutor that

resulted in “search, warrant, arrest, custody decisions” being made in relation to 140 members

of the Court of Cassation and almost 40 members of the Council of State.

The source further alleges that an indictment against Mr. Yaman was prepared by the

prosecutors and filed 17 months after his arrest. Mr. Yaman’s first trial hearing took place on

16 April 2018. According to the source, the legal basis for his detention is article 46 (1) of

Law 2797 on the Court of Cassation, article 100 of the Turkish Criminal Procedure Code and

article 314 (2) of the Turkish Criminal Code (membership of a terrorist organization). Mr.

Yaman’s lawyer has filed appeals on a monthly basis against his detention, but the

applications have been rejected without any justification. Mr. Yaman has been detained since

20 July 2016.

Conditions of custody and detention

The source claims that, following his arrest on 18 July 2016, Mr. Yaman was held in

inhumane conditions in a basement cell at a police station that was overcrowded and had no

windows or air conditioning. He had limited access to toilet facilities owing to overcrowded

conditions. Later that day, Mr. Yaman and other members of the supreme judiciary were

handcuffed with their hands behind their backs and driven to the Ankara Security Directorate

by a long route, in order to expose the detainees to the public. For almost 24 hours, Mr.

Yaman was kept in an overcrowded, hot cell in which he had difficulty breathing. He could

not sleep and waited in a standing or crouched position for most of the time. In the cell,

almost 120 people had to share only two toilets. Mr. Yaman was not provided with his

medications for his kidney and blood pressure conditions, and was subjected to degrading

treatment.

After a medical examination, Mr. Yaman was brought to the courthouse at about 5

p.m. the following day. The source alleges that he was again unnecessarily handcuffed with

his hands behind his back. Almost 200 members of the supreme judiciary were made to stand

in a corridor without seating. After one hour, Mr. Yaman met with a defence lawyer for 2 to

3 minutes while supervised by the police. After giving his statement, Mr. Yaman was

returned to the corridor, where he lay on the floor on a newspaper. The source alleges that

Mr. Yaman was held in inhumane conditions until 2 a.m., when he was taken to a prayer

room at the courthouse together with about 400 people.

10.

On 20 July 2016 at around 10 a.m., Mr. Yaman was brought to a corridor of the

Magistrates’ Court, where he was kept waiting for most of the day. There, he saw his spouse

for the first time since his arrest, but could not talk to her as she was not allowed to pass the

police barricade. Mr. Yaman gave his statement at 7 p.m. and was detained, taken past his

A/HRC/WGAD/2018/78

spouse in handcuffs with his hands behind his back, and brought to Sincan T-Type Prison in

Ankara.

11.

The source reports that, from 20 July to 8 October 2016, Mr. Yaman was detained at

Sincan T-Type Prison. He was placed with 30 people in a cell that was designed for 8 people

and had to sleep on the floor for the first three months. Minimum standards of hygiene were

not met in the prison.

12.

On 9 October 2016, Mr. Yaman was transferred without any notification or

explanation to single-cell isolation at Kirikkale Keskin T-Type Closed Prison. The source

claims that, while a single-cell penalty may be imposed pursuant to an investigation and

approval by a judge, Mr. Yaman has been arbitrarily subjected to this disciplinary measure.

The only activity possible at the cell is cleaning. Mr. Yaman is allowed to make a 10-minute

telephone call every 15 days. According to the source, Mr. Yaman has been subjected to

inhuman treatment and psychological torture owing to this ongoing isolation without any

justification. As a result, his health is deteriorating.

Submissions

13.

The source submits that Mr. Yaman’s deprivation of liberty is arbitrary according to

categories I, II, III and V.

Category I: lack of legal basis for the detention

14.

In relation to category I, the source recalls that Mr. Yaman was taken into custody and

detained for investigation following the attempted coup d’état on 15 July 2016, and that his

house was searched. The source emphasizes that Mr. Yaman is a member of the supreme

judiciary who respects the rule of law and the Constitution. He did not contribute to the

attempted coup, and no evidence has been presented to that effect. Mr. Yaman was not

detained on suspicion of any offence relating to the attempted coup.

15.

At the time of the investigation, Mr. Yaman was a member of the Court of Cassation.

However, the investigation was not conducted in accordance with the Law 2797 on the Court

of Cassation. Judges are subject to certain guarantees provided by that Law,1 as well as

guarantees contained in various international and regional instruments. Furthermore, the

investigative bodies lacked competence and their jurisdiction was in conflict with the Law.2

The Board of the First Presidency of the Court of Cassation has the power to initiate an

investigation, and the entire process must take place within the Court of Cassation. Any

investigating member of the Court of Cassation may employ temporary protection measures,

such as arrest and detention. The procedures of the Court of Cassation represent a higher-

level guarantee. The source submits that Law 2797 on the Court of Cassation is of a specific

nature and should prevail over laws of a general nature. The provisions of the Criminal

Procedure Code and Decree Law No. 667 on measures taken within the scope of state of

emergency are general in nature and do not apply to Mr. Yaman.

16.

The source argues that removing the tenure of a member of the supreme judicial body

cannot reverse the effects of an attempted coup d’état and is therefore a disproportionate

penalty. In addition, members of the Court of Cassation were taken into custody before

Decree Law No. 677 was published. The Office of the Magistrates’ Judge, which decides on

detention and considers appeals, does not have competence in the present case. As a result,

Mr. Yaman was not detained by a competent court established by law, in violation of article

19 of the Turkish Constitution, articles 8, 9 and 10 of the Universal Declaration of Human

Rights, and articles 9, 10 and 14 of the Covenant.

17.

The source refers to the investigation procedure set out in Law 2797 on the Court of

Cassation, which applies unless the offender was apprehended in flagrante delicto or the

offence involves a heavy penalty. In the present case, Mr. Yaman learned about the attempted

coup from the news and had no connection to it. He was not arrested in flagrante delicto after

1 The source states that those guarantees are provided in articles 2, 5, 9–11, 14, 17, 19–22, 24–26, 35–

40, 138–140 and 154 of Law 2797 on the Court of Cassation.

2 The source refers to articles 18 (4) (Duties of the Board of the First Presidency of the Court of

Cassation) and 46 of Law 2797 on the Court of Cassation.

A/HRC/WGAD/2018/78

participating in the attempted coup, nor was he arrested in possession of a weapon or any

evidence that would indicate that he had taken part in the attempted coup. Instead, Mr. Yaman

was taken into custody at his residence, which was allocated to him by the President of the

Court of Cassation. Accordingly, the police, Public Prosecutor and Magistrate Judge were

not competent and did not have jurisdiction to order the search, detention and investigation.

In addition, the law enforcement authorities did not take any action over the two-day custody

period during which they are required to gather evidence and submit it to the President of the

Court of Cassation.

18.

According to the source, the actions and decisions of the authorities should be

considered as having been made unlawfully and in bad faith because Decree Law No. 667

only entered into force on 23 July 2016, after Mr. Yaman had been taken into custody.

Moreover, Mr. Yaman had been taken into custody before the instruction of the Public

Prosecutor was issued. The State has a responsibility to ensure the independence of the

judiciary through the security of tenure of judges and by not interfering with the performance

of their duties.

19.

In addition, the search at Mr. Yaman’s office and home was contrary to the required

procedures. The source alleges that the search was conducted on 20 July 2016 at 3 a.m., when

Mr. Yaman was already in custody, and pursuant to an approval of seizure, not a search

warrant. Any evidence obtained was done so illegally and must not form the basis of a

decision to detain Mr. Yaman. The search was not conducted in the presence of an

investigator assigned by the Board of the First Presidency of the Court of Cassation, as

required by law.

20.

Furthermore, Mr. Yaman’s deprivation of liberty was not predictable and did not

comply with the principle of legal certainty. The detention of a member of the Court of

Cassation must be ordered by the First President of the Court of Cassation, yet the detention

of Mr. Yaman did not follow the law. According to the source, in the 150-year history of the

Court, the methods employed in the present case had never previously been used, including

under a monarchy, autocracy, occupation, single party rule, martial law and military

administration.

21.

The source recalls that the Office of the Magistrates’ Judge referred to the need to

detain suspects owing to the flight risk following the attempted coup, but submits that there

is no evidence of such a risk in the present case. Mr. Yaman has not attempted to flee and

has no connections abroad. Moreover, Mr. Yaman’s detention was ordered at the start of the

investigation, when there was no evidence that would allow an assessment of the case.

22.

Finally, the source alleges that, following Mr. Yaman’s detention, the trial authority

was changed to the Criminal Chamber of the Court of Cassation under Decree Law No. 690,

dated 29 April 2017. The General Assembly of the Criminal Chambers of the Court of

Cassation will serve as the appellate court.

Category II: exercise of rights

23.

In relation to category II, the source recalls that, as a member of the Court of

Cassation, Mr. Yaman conducted proceedings involving alleged terrorist organizations. Until

his detention, he had been protected by the State against the threats of separatist and terrorist

organizations, which target and threaten others through digital media. In 2014, an essay had

been shared through a social media account that had a possible connection with Islamic State

in Iraq and the Levant, claiming that 140 members of the Court of Cassation were members

of terrorist groups, including Mr. Yaman. According to the source, the unofficial list was

used as the basis for their dismissal from service and detention.

24.

The source details various structural changes within the judiciary and the Court of

Cassation from 2010 to 2016. The source alleges that the Government exerted pressure on

the judiciary, including by enacting Law No. 6545 to amend the structure of the Court of

Cassation and on 18 June 2014 by putting an end to the term of the Board of the First

Presidency, as well as the term of Secretary-General and Deputy Secretaries-General of the

Court. Between 2011 and 2015, the Board of the First Presidency was revised four times. As

a further example, the source notes that the “Platform for Unity in the Judiciary” was

established as an association within the Court of Cassation with the support of the

A/HRC/WGAD/2018/78

Government, in order to exert pressure on judges and prosecutors. According to the source,

4,500 judges and prosecutors who did not support the Platform were dismissed, and 3,000

were still detained.

25.

Furthermore, the new Board of the First Presidency changed Mr. Yaman’s duty

station, as well as the duty stations of more than 100 members of the Court of Cassation. The

new Board also initiated investigations into members of the Court of Cassation. The source

alleges that Mr. Yaman was investigated owing to his dissenting opinions. He was subjected

to discrimination, including the rejection of his participation in seminars, scientific

conferences and international meetings. On 16 July 2016 at 8 a.m., the Court of Cassation

management used the attempted coup as a pretext to investigate 140 members of the Court

who had not supported the Platform for Unity in the Judiciary and whose names had been

published on a website operated by groups targeting the judiciary. Mr. Yaman learned about

the decision to take him into custody from the television news at midnight while the

attempted coup was ongoing. The source claims that Mr. Yaman had no partisan government

affiliation and was targeted by government-run media and terrorist websites.

26.

The source reports that, in accordance with decision No. 2016/426 of the High Council

for Judges and Prosecutors dated 24 August 2016 and article 3 of Decree Law No. 667, Mr.

Yaman and others were dismissed from public service, with no possibility to return, to appeal

or to seek the re-examination of the dismissal. The source alleges that the Government has

successfully eliminated the Council of State, the Court of Cassation and the administrative

and ordinary court jurisdictions, thereby achieving a complete dominance of the judiciary.

Category III: right to a fair trial

27.

In relation to category III, the source submits that Mr. Yaman’s rights under articles

9 and 10 of the Universal Declaration of Human Rights and articles 9 and 14 of the Covenant

have been violated. Mr. Yaman was denied an effective remedy and the equality of arms

because his lawyers were denied access to the evidence against him. A confidentiality order

was placed on Mr. Yaman’s file and his defence counsel was unable to challenge his

detention without seeing the fundamental evidence that was supposedly the basis for the

detention.

28.

All decisions in the present case have been taken in the absence of Mr. Yaman, who

has been unable to defend himself. The source alleges that Mr. Yaman has been detained for

at least 12 months without being brought before a judge. Article 3 (1) of Decree Law No. 668

has been used as an excuse to violate the right to a fair trial, including the right to appear in

person.

29.

Furthermore, decisions in relation to Mr. Yaman’s detention have been made without

the appropriate justification and individual evaluation, including the analysis of Mr. Yaman’s

file and consideration of his health status. The detention of 150 judges has been justified in

brief two-line dispositions by the courts, in violation of articles 34 and 230 of the Criminal

Procedure Code and article 141 (3) of the Turkish Constitution, which set out the justification

required to detain an individual. Mr. Yaman has submitted more than 15 petitions to the

courts, none of which has reached its destination, and there has been no record of the

petitions.

30.

In addition, other than the Turkish Criminal Code, there are no law books at the prison

where Mr. Yaman is being held, and his family is prevented from providing him with law

books. A court decision on this matter in favour of Mr. Yaman has not been applied, and the

circular dated 26 July 2016 of the Ministry of Justice on Fetullahist Terrorist

Organization/Parallel State Structure (FETÖ/PDY) detainees has been used as the

justification.

31.

The source submits that the legal advice provided to Mr. Yaman is restricted by law

and is monitored by the prison staff and recorded audiovisually. Documents exchanged with

legal representatives are checked and audited, and the privacy of communications with his

defence counsel has been violated. Furthermore, family visits are restricted by the Decree

Law. While other detainees can participate in a telephone call with their families once a week,

Mr. Yaman is only allowed to do so once every two weeks. Other detainees are entitled to a

one-hour visit per month, but Mr. Yaman can only receive a visit for 30 minutes every two

A/HRC/WGAD/2018/78

months. The source alleges that Mr. Yaman has been placed in a prison 150 kilometres away

from his place of trial, and that this decision was made in order to prevent or make difficult

the provision of legal advice and family visits.

32.

The source emphasizes that Mr. Yaman does not pose a flight risk. He has been a

judge for 28 years and is a member of the supreme judiciary. He resides in a home allocated

by the State and is married with four children. Although he knew that he would be taken into

custody, he waited at his residence for two days for the police to come to him. As a result,

articles 100 and 101 of the Criminal Procedure Code, article 19 (3) of the Turkish

Constitution, as well as articles 9 and 10 of the Universal Declaration of Human Rights and

articles 9 and 14 of the Covenant, have been violated.

33.

According to the source, the process for examining Mr. Yaman’s detention was

confused. The decisions regarding the continuation of Mr. Yaman’s detention have been

systematically notified immediately after the date of examination, thereby effectively

preventing him from challenging his detention. Moreover, the judge who considers appeals

against detention orders is the same judge who decides on the continuation of detention. The

source claims that, even if a judge is prepared to release Mr. Yaman, he or she will not do so

given that the detention has been extended several times. The source alleges that this amounts

to a violation of articles 9 and 10 of the Universal Declaration of Human Rights and article

9 and 14 of the Covenant.

34.

In addition, the source submits that Mr. Yaman’s right to fair trial and the presumption

of innocence has been violated. Mr. Yaman has requested that judges recuse themselves from

considering his appeals against ongoing detention orders. However, Mr. Yaman’s requests

have not been processed, in violation of article 26 of the Criminal Procedure Code. The

judges who have heard Mr. Yaman’s matter have revealed their opinions on the case, cannot

act impartially and do not conclude hearings within a reasonable time.

35.

Finally, the source stresses that Mr. Yaman suffers from serious health problems,

including kidney disease and high blood pressure. He has been detained without receiving

treatment for these problems and risks losing his kidney. The source argues that this

constitutes a violation of article 5 of the Universal Declaration of Human Rights.

Category V: discrimination

36.

In relation to category V, the source submits that Mr. Yaman was targeted owing to

his judgments and decisions, which were not in line with government expectations. Mr.

Yaman was dismissed without the possibility of being able to continue his profession as a

judge or lawyer. His properties and bank accounts were seized, including retirement savings,

and he was removed from the residence allocated to him by the State.

Response from the Government

37.

On 15 August 2018, the Working Group transmitted the allegations from the source

to the Government under its regular communication procedure. The Working Group

requested the Government to provide detailed information by 15 October 2018 about the

current situation of Mr. Yaman. The Working Group also requested the Government to

clarify the legal provisions justifying his continued detention, as well as its compatibility with

Turkey’s obligations under international human rights law. Moreover, the Working Group

called upon the Government to ensure Mr. Yaman’s physical and mental integrity.

38.

On 24 September 2018, the Government requested an extension of the deadline for

response. The extension was granted until 29 October 2018. The Government submitted its

response on 26 October 2018.

Background information

39.

In its response, the Government provides an overview of the terrorism threats faced

by Turkey, particularly from FETÖ/PDY, prior to and after the attempted coup d’état of 15

A/HRC/WGAD/2018/78

July 2016.3 The Government recalls that 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 seven times.

40.

Following the declaration of the state of emergency, the Government derogated from

some of its obligations under the Covenant. Notification of that derogation was submitted to

the United Nations under article 4 of the Covenant. The measures taken were strictly required

by the exigencies of the situation, proportionate to the crisis and necessary to eliminate the

influence of terrorist organizations. Since the measures taken were based on decrees that have

since been adopted by the Grand National Assembly, the principle of legality is satisfied.

41.

According to the Government, the state of emergency ended on 19 July 2018. The

Government has revoked the notification of derogation. The revocation was communicated

to the United Nations on 8 August 2018.

Circumstances of the present case

42.

According to the Government, Mr. Yaman was taken into custody on 18 July 2016 by

the Ankara Chief Public Prosecutor’s Office. He was informed of the charges against him

and his legal rights. He exercised his right to inform his family that he had been taken into

custody.

43.

On 19 July 2016, Mr. Yaman gave his statement at the Ankara Public Prosecutor’s

Office and denied the allegations against him. He was referred to the Criminal Court of Peace

on a charge of “being a member of an armed terrorist organization”. Mr. Yaman consulted

with a lawyer while he was questioned by the Court, which subsequently ordered his

detention.

44.

The Court considered that judicial control measures would be insufficient in Mr.

Yaman’s case, having taken into account: (a) the seriousness of the charge; (b) the evidence

against Mr. Yaman; (c) the existence of a tangible and imminent threat; (d) the verdict dated

17 July 2016 of the Board of First Presidency of the Court of Cassation; (e) the strong

possibility that Mr. Yaman would hide or flee, noting that many members of the judiciary

who had been prosecuted for the same offence had escaped justice; (f) the prescribed

punishment for the crime; (g) the fact that the crime was included in article 100 (3) of the

Code of Criminal Procedure; 4 and (h) the fact that the conditions of article 5 of the

Convention for the Protection of Human Rights and Fundamental Freedoms (the European

Convention on Human Rights) had been met.

45.

The Government emphasizes that Mr. Yaman’s detention has been reviewed by the

Criminal Courts of Peace and the Criminal Chambers of the Court of Cassation on 29

occasions since he was taken into custody.5 During each review, the courts gave detailed

reasons to support continuation of his detention. The reviews are judicial decisions and are

subject to the supervision of higher courts.

46.

On 17 July 2016, the Board of First Presidency of the Court of Cassation abolished

the competence of members of the Court of Cassation by decision number 244 (a). Given

that FETÖ/PDY was suspected to have created its own structure within the judiciary, the

membership of all Court of Cassation members was terminated in order to hold fresh

elections under provisional article 15 of Law No. 6723 of 1 July 2016. Mr. Yaman was

employed as an “examining magistrate” until he was dismissed owing to his affiliation with

FETÖ/PDY, in accordance with decision 2016/426 of the Council of Judges and Prosecutors

dated 24 August 2016. Action to annul that decision can be taken before the Council of State.

3 A full summary of the background information submitted by the Government is set out in opinion No.

11/2018, paras. 20–26.

4 Article 100 (3) provides that, for certain crimes, the grounds for detention are deemed to exist if there

is a strong reason for suspicion that the crime has been committed.

5 The Government states that Mr. Yaman’s detention was reviewed 5 times in 2016, 15 times in 2017

and 9 times in 2018. The Government provided the dates of each review.

A/HRC/WGAD/2018/78

47.

On 6 November 2017, the Ankara Chief Public Prosecutor’s Office referred the case

to the Chief Public Prosecutor’s Office of the Court of Cassation. By an indictment dated 5

January 2018, the Chief Public Prosecutor’s Office of the Court of Cassation brought the case

before the 9th Criminal Chamber of the Court of Cassation. Mr. Yaman was accused of

“being a member of an armed terrorist organization” in the indictment, which stated:

[It] is understood that the suspect was engaged in the illegal activities of FETÖ/PDY,

considering: the content of other users’ correspondences on [the communication

application] Bylock and witness statements; that he had taken part in the

Organization’s meetings; that he had been among other FETÖ/PDY members who

had been chosen to be selected as members of the Court of Cassation after the

Organization had seized the majority in the Council of Judges and Prosecutors in

2010; that he had been a member of the FETÖ/PDY cell within the Court of Cassation

and in that context had carried out activities on behalf of the Organization, such as

staffing and collecting “charity”; that other FETÖ/PDY members had mentioned him

in their correspondences on Bylock; that he had consistently saved and shared

information with other members of FETÖ/PDY and had ensured that said information

was used to develop new strategies for the Organization; that [an individual], who is

one of the “imams” of the Organization and against whom an investigation is ongoing

for his affiliation with FETÖ/PDY, had given the order to make use of such

information to [another individual], who is also being investigated for his affiliation

with FETÖ/PDY; that he had made online propaganda for the Organization by sharing

posts regarding persons and institutions affiliated with FETÖ/PDY on his Twitter

account; and that he had worked with “imams” and other members of the

Organization’s “cell” within the judiciary.

48.

On 11 January 2018, the 9th Criminal Chamber of the Court of Cassation accepted

the indictment against Mr. Yaman. Hearings were held on 16 April and 13 August 2018, and

the proceedings are ongoing.

49.

The Government outlines the domestic remedies available to Mr. Yaman, including:

(a) the right to object to detention under article 91 (5) of the Code of Criminal Procedure; (b)

an action for compensation under article 141 of the same Code; and (c) an individual

application to the Constitutional Court. Mr. Yaman has not taken action under articles 91 (5)

or 141 of the Code of Criminal Procedure. However, he has filed eight applications to the

Constitutional Court, in which he alleged that his rights had been violated during the state of

emergency. On 24 July 2017, the Court found his application inadmissible for non-exhaustion

of other legal remedies. His other applications are pending before the Constitutional Court.

Conditions of detention

50.

The Government states that Mr. Yaman was detained on 20 July 2016 by Ankara

Criminal Court of Peace on the charge of “being a member of an armed terrorist organization”

and was sent that day to Sincan T-Type Closed Penal Institution. The Government

emphasizes that Mr. Yaman has received medical treatment throughout his detention and

gives several examples of the treatment and medication that he has been prescribed for high

blood pressure, kidney disease and other ailments.

51.

During his detention from 20 July to 9 October 2016 at Sincan T-Type Closed Penal

Institution, Mr. Yaman contacted his lawyer 15 times and contacted his family 18 times.

52.

On 9 October 2016, Mr. Yaman was transferred to Keskin T-Type Closed Penal

Institution, where he is detained in a single room. In accordance with Law No. 5275 and the

Regulation on Administration of Penal Institutions and Execution of Penalties and Security

Measures, it was determined that Mr. Yaman needed to be held in either a single or a three-

person room with additional security measures for his safety, given his condition and his

former position. His single room is not a cell. Detainees held in those rooms have the same

rights as other detainees who stay in communal rooms.

53.

According to the Government, Mr. Yaman was allowed to make telephone calls

during the state of emergency, in accordance with Decree Law No. 667, and more frequently

after the state of emergency ended. Detainees are allowed a 10-minute telephone call once a

week. Mr. Yaman contacted his lawyer 122 times during his detention at Keskin T-Type

A/HRC/WGAD/2018/78

Closed Penal Institution. He wrote 97 petitions to different institutions, all of which were

transferred to their addressees.

54.

Temporary overcrowding occurred in some institutions as a result of the number of

people detained after the coup attempt. With the conclusion of the state of emergency, it is

expected that there will be improvements in detention conditions.

Submissions on arbitrary detention

55.

The Government argues that the allegations communicated to the Working Group fall

within the scope of articles 9 and 14 of the Covenant. As a result, the communication is

inadmissible because the notification of derogation covers those provisions. Analysis of the

derogation should take into account the conditions under which it was made and should not

be based on principles applicable during normal periods. Any other approach would render

article 4 of the Covenant meaningless. In support of its argument, the Government discusses

the approach of the European Court of Human Rights. The Government also outlines the

provisions allowing for the declaration of a state of emergency in Turkey, including articles

15 and 119 to 122 of the Constitution.

56.

In addition, the Government recalls that Mr. Yaman was held in custody for three days

before being detained in accordance with the decision of a competent court. He did not file

an objection against the custody, even though he had the right to do so. The period of custody

was proportionate, given that: (a) investigations were being carried out in relation to a large

number of individuals suspected to be affiliated with FETÖ/PDY; (b) numerous people had

been taken under custody under the same investigation; and (c) the complexity and

seriousness of the alleged crime had warranted such custody.

57.

The Government submits that Mr. Yaman gave his statement in the presence of a

lawyer and was accorded his right to legal assistance. Mr. Yaman was brought promptly

before a judge after being taken into custody. Decisions relating to his custody and detention

were made by independent judges, who provided their reasons. Mr. Yaman exercised his

right to appeal. The charges and evidence were explained in the indictment presented to the

court. Prosecution of those who participated directly in the attempted coup is in itself not

enough to combat FETÖ/PDY, and it is therefore important to identify others who helped to

orchestrate a violent takeover.

58.

According to the Government, the prosecution of Mr. Yaman is based on concrete

evidence. He was not detained because of his dissenting opinions. In addition, Mr. Yaman

filed an objection that the investigation against him should be conducted in accordance with

the Law on the Court of Cassation. However, that objection was rejected as the Law does not

apply to certain charges under the Criminal Code. The alleged crime attracts severe penalties.

Moreover, the courts have stated that membership of a terrorist organization is a continuous

crime, and judges and prosecutors who are suspected members of an armed terrorist

organization are considered to be caught in flagrante delicto at the moment they are

apprehended.

59.

In relation to the confidentiality order, the Government recalls that article 153 of the

Code of Criminal Procedure allows for restrictions on the right of defence counsel to examine

a file if a judge determines that it would jeopardize the investigation of certain crimes. Those

crimes include the charges against Mr. Yaman under article 314 of the Criminal Code. Mr.

Yaman and his lawyer had sufficient information to object to his detention since they had

been informed about the accusations during the interrogation. Moreover, the restriction on

the file was removed once the indictment had been approved by the court.

60.

Finally, the Government submits that the allegations in the present case were not

raised at the national level. 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 allegations should be

rejected under article 41 (1) (c) of the Covenant owing to the non-exhaustion of domestic

remedies.

A/HRC/WGAD/2018/78

Further comments from the source

61.

The source reiterates that, when a member of the Court of Cassation is alleged to have

committed a crime, the investigation must be conducted by the Prosecutor’s Office of the

Court of Cassation, except when the suspect is apprehended in flagrante delicto. This was not

the case for Mr. Yaman. Neither the Criminal Court of Peace nor the 9th Criminal Chamber

is competent to hear a matter involving a member of the Court of Cassation.

62.

The source denies that reasons have been given for Mr. Yaman’s continued detention,

noting that previous decisions have been simply repeated. Mr. Yaman has only been

presented four times to the court during his 28-month detention, and proceedings have taken

place in his absence. Mr. Yaman has also been detained without any evidence. The

Government’s references to conversations on the communication application Bylock, which

refer only to “Hamza”, is not sufficient evidence. In addition, Mr. Yaman does not have a

Twitter account through which he could have shared propaganda, and there are 20 Twitter

accounts operating under the name “Hamza Yaman”.

63.

The source disputes the Government’s claims relating to Mr. Yaman’s access to his

lawyers and family members. In particular, Mr. Yaman can only meet with his lawyers in

rooms equipped with audio and video recording facilities, and he is detained in a cell. He has

filed objections against his detention and has sought compensation, but his applications have

either been ignored or rejected, and he has had no effective remedy.

Discussion

64.

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

65.

At the outset, 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 prevents the Working

Group from considering communications owing to the lack of exhaustion of domestic

remedies. 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.6

66.

As a further preliminary issue, the Working Group notes the Government’s argument

that Mr. Yaman’s situation falls within the scope of the derogation from its obligations under

articles 2 (3), 9–10, 12–14, 17, 19, 21–22 and 25–27 of the Covenant.7 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 alleged detention of Mr. Yaman. 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.8 Deviating from fundamental

principles of fair trial, including the presumption of innocence, is prohibited at all times.9

6 See opinions Nos. 44/2018, 43/2018, 42/2018, 11/2018, 41/2017, 38/2017, 19/2013 and 11/2000.

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

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

Although the derogation has since been revoked, it was in force at the time of Mr. Yaman’s arrest.

8 See general comment No. 35, para. 65; and general comment No. 32, para. 6. The Working Group

and other special procedure mandate holders have expressed concern that renewals of the derogation

do not appear to comply with the requirements of necessity and proportionality under international

law, particularly under article 4 (1) of the Covenant. See urgent appeal TUR 7/2018, available at

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

See also the Government’s response, available at https://spcommreports.ohchr.org/TMResultsBase/

DownLoadFile?gId=34274.

9 See general comment No. 32, para. 6.

A/HRC/WGAD/2018/78

67.

In determining whether Mr. Yaman’s deprivation of liberty is arbitrary, the Working

Group has regard to the principles established in its jurisprudence regarding evidentiary

issues. If the source has established a prima facie case for breach of the international

requirements constituting arbitrary detention, the burden of proof should be understood to

rest upon the Government if it wishes to refute the allegations. Mere assertions by the

Government that lawful procedures have been followed are not sufficient to rebut the

source’s allegations (see A/HRC/19/57, para. 68).

68.

The source alleges that there were a number of procedural defects in relation to Mr.

Yaman’s arrest and initial custody. Several of the issues raised by the source involve

questions of whether Mr. Yaman’s investigation was carried out in accordance with national

laws, such as Law 2797 on the Court of Cassation. The Working Group is not, as a general

rule, competent to reach conclusions on the application of national law. However, the

Working Group considers that two of the source’s allegations, namely, that Mr. Yaman was

taken into custody before an instruction was issued by the Public Prosecutor and that the

search of his home was carried out without a search warrant, have an important bearing on

whether there was a legal basis for the detention. The Government did not address either of

those allegations.

69.

According to article 9 (1) of the Covenant, no one shall be deprived of liberty except

on such grounds and in accordance with such procedure as are established by law. As the

Working Group has stated, in order for a deprivation of liberty to have a legal basis, it is not

sufficient that there is a law which may authorize the arrest. The authorities must invoke that

legal basis and apply it to the circumstances of the case through the required procedure, in

the present case, the issuing by the Public Prosecutor of an instruction (see, e.g., opinions

No. 36/2018 and No. 35/2018). That instruction was not issued before Mr. Yaman was taken

into custody, and a legal basis was not invoked for his arrest. In addition, Mr. Yaman’s home

and office were searched pursuant to an approval of seizure not a search warrant. Any

evidence obtained was done so illegally and cannot form the legal basis of a decision to detain

Mr. Yaman.10

70.

Furthermore, the Working Group wishes to comment on the issue of apprehension in

flagrante delicto. According to the submissions from both parties, members of the Court of

Cassation can be arrested and investigated only when caught in flagrante delicto of

committing a crime that attracts a serious penalty. In the present case, the source argues that

Mr. Yaman learned about the attempted coup from the news and was arrested at his residence.

He was therefore not arrested in flagrante delicto. The Government submits that membership

of a terrorist organization is a continuous crime and judges who are suspected members of

an armed terrorist organization are considered to be caught in flagrante delicto at the moment

they are apprehended. The Working Group cannot agree with the Government’s reasoning,

as it appears to be contrary to the presumption of innocence. In its jurisprudence, the Working

Group has consistently found that an offence is flagrant if the accused is either apprehended

during the commission of a crime or immediately thereafter, or is arrested in hot pursuit

shortly after a crime has been committed.11 As a result, the Working Group considers that

Mr. Yaman was not arrested in flagrante delicto and there was no legal basis invoked for his

arrest as the required procedures were not followed.

71.

According to the source, the decisions regarding the continuation of Mr. Yaman’s

detention have been systematically notified immediately after the date of examination,

thereby preventing him from appealing against the decision or effectively challenging his

detention. The Government had not addressed that allegation. The Working Group considers

that the failure to provide timely notification of the decisions made on Mr. Yaman’s detention

amounts to a violation of article 9 (4) of the Covenant, which requires the court to decide

without delay on the lawfulness of detention. The Working Group has observed that judicial

10 The Working Group made a similar finding in paras. 39–40 of its opinion No. 36/2018, in the case

where evidence had been obtained without a search warrant and used in court proceedings.

11 See opinion No. 9/2018, para. 38. See also opinions No. 36/2017, para. 85; No. 53/2014, para. 42; No.

46/2012, para. 30; No. 67/2011, para. 30; and No. 61/2011, paras. 48–49; and E/CN.4/2003/8/Add.3,

paras. 39 and 72 (a).

A/HRC/WGAD/2018/78

oversight of deprivation of liberty, including periodic review, is a fundamental and non-

derogable safeguard of personal liberty. 12 Such oversight is essential in ensuring that

detention has a legal basis (see, e.g., opinions No. 46/2017 and No. 28/2016). Given that Mr.

Yaman has been unable to challenge his detention effectively, his right to an effective remedy

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

has also been violated.

72.

For the reasons above, the Working Group finds that the Government has failed to

establish a legal basis for Mr. Yaman’s arrest and detention. His deprivation of liberty is

therefore arbitrary under category I.

73.

Although the Working Group makes no findings in relation to category II in the

present case, it wishes to comment briefly on the allegations against Mr. Yaman. The

Working Group observes that the allegations in the indictment appear to focus on Mr.

Yaman’s membership of FETÖ/PDY, particularly his use of the Bylock communication

application, the content of other users’ correspondence on Bylock that mention him and his

use of a Twitter account to share online propaganda. However, the Government has not

explained how Mr. Yaman’s alleged conduct demonstrates 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 and social media are

compatible with the rights to freedom of expression and association.

74.

In addition, the source alleges that there have been multiple violations of Mr. Yaman’s

right to a fair trial during his custody, detention and proceedings to review his detention.

75.

The source submits that Mr. Yaman’s right to appear in person during the review of

his detention has been violated. Mr. Yaman has only been presented four times to the court

during his 28-month detention, and proceedings have taken taking place in his absence. The

Government has not refuted that allegation. The Working Group considers that Mr. Yaman

has the right to appear in person at all of his hearings, both to review the legality of his

detention13 and at the trial hearings. As the Human Rights Committee has stated, the physical

presence of detainees at the hearing may assist the inquiry into the lawfulness of detention

and serves as a safeguard for the right to security of person.14

76.

In addition, the Working Group notes that it has been over two years (28 months)

since Mr. Yaman was detained in July 2016. While the case against Mr. Yaman involves

complex allegations relating to alleged membership of FETÖ/PDY, the Government has

offered no explanation as to why this process has taken over two years. There is no apparent

end in sight to the constant renewal of Mr. Yaman’s detention on 29 occasions. Given the

extensive delay, the courts must reconsider alternatives to detention.15 The right to be tried

within a reasonable time and without undue delay is one of the fair trial guarantees embodied

in articles 10 and 11 (1) of the Universal Declaration of Human Rights and articles 9 (3) and

14 (3) (c) of the Covenant, and that right has been violated in the present case. If Mr. Yaman

cannot be tried within a reasonable time, he is entitled to release under article 9 (3) of the

Covenant.16

77.

The source alleges that a confidentiality order was placed on Mr. Yaman’s file and his

defence counsel has not been able to challenge his detention without seeing the fundamental

evidence that formed the basis for the detention. The Government submits that the restriction

of the defence’s access to the file is permissible under article 153 of the Code of Criminal

Procedure, that Mr. Yaman and his lawyer had sufficient information to object to his

12 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, principle 4 and guideline 3.