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.19-15991(E)
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its eighty-fifth session, 12–16 August 2019
Opinion No. 53/2019 concerning Melike Göksan and Mehmet Fatih
Göksan (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 15 May 2019 the
Working Group transmitted to the Government of Turkey a communication concerning
Melike Göksan and Mehmet Fatih Göksan. The Government replied to the communication
on 15 July 2019. 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);
United Nations
A/HRC/WGAD/2019/53
General Assembly
Distr.: General
18 September 2019
Original: English
A/HRC/WGAD/2019/53
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(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).
Submissions
Communication from the source
4.
Melike Göksan is a Turkish national, born in 1990. She is a judge at one of the High
Criminal Courts in Adana, Turkey. Mehmet Fatih Göksan is a Turkish national, born in
1990. He is also a judge at one of the High Criminal Courts in Adana, Turkey. After his
first arrest, he was suspended from his official functions. Melike Göksan and Mehmet Fatih
Göksan are married.
(a)
Contextual background
5.
The source explains that, just after the attempted coup d’état in July 2016, over
4,200 judges and prosecutors were dismissed through executive orders of the High Council
of Judges and Prosecutors.1 Following another order of the High Council of Judges and
Prosecutors, 189 judges and prosecutors were dismissed in October 2016. After that, an
order dated 13 October 2016 was issued by the Ankara Prosecutor’s Office to arrest and
detain those 189 judges and prosecutors for their alleged membership of an armed terrorist
group (Fethullah terrorist organization (FETÖ)).
(b)
Arrest and detention
6.
According to the source, on 14 October 2016 at about 2 a.m., following a search of
her apartment in Adana, Ms. Göksan was arrested at her apartment by police forces on the
basis of an arrest warrant. On the same day, following a judgment of the Second Peace
Judgeship Court of Adana, Ms. Göksan was transferred to Tarsus Prison.
7.
With regard to Mr. Göksan, the source reports that he was arrested a first time on 19
July 2016. He was released the next day but was ordered to report to a police station once a
week. On 5 September 2016, at about 9 a.m., while he was driving home, he was arrested
for a second time. A judgment was issued for his detention on the same day. He was
immediately transferred to the Osmaniye Prison. The cases of Mr. and Ms. Göksan were
merged together at a later stage.
8.
The source explains that, after the arrest, the only reason provided to Mr. and Ms.
Göksan for their detention was that they were members of FETÖ.
9.
The source notes that the arrest and detention of judges are specifically regulated by
article 88 of Turkish Law 2802. However, the authorities contended that, as members of a
terrorist organization, Mr. and Ms. Göksan were, all the time, committing an aggravated
felony and, accordingly, they were in flagrante delicto at the time of their arrests. The
source contests the legality of the detention.
10.
The source also claims that, contrary to article 84 of Turkish Law 2802, Mr. and Ms.
Göksan were not given an opportunity to respond to the allegations against them. In
addition, contrary to article 85 of that law, the Second Peace Judgeship Court of Adana did
not have jurisdiction to adjudicate over the arrest and detention of a judge and it follows
that the arrest and detention of Mr and Ms. Göksan are unlawful and arbitrary. The source
further claims that they were not informed about the charges against them within five days,
as required in article 89 of this law. Instead, the indictment against Mr. and Ms. Göksan
was only finalized by the Prosecutor on 18 July 2017, more than nine months after their
arrest.
1 The source refers to Office of the United Nations High Commissioner for Human Rights, “Report on
the impact of the state of emergency on human rights in Turkey, including an update on the South-
East” (March 2018), para. 8.
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11.
The source explains that, in the vast majority of the indictment, there is nothing
explaining the charges brought against Mr. and Ms. Göksan. The Prosecutor refers only to
an Excel sheet, unavailable to both of them, containing a list of users of the ByLock
messaging application, which allegedly indicates that Mr. and Ms. Göksan’s phone
numbers were associated with a ByLock account. It was also indicated in the indictment
that, other than the alleged association of Mr. and Ms. Göksan’s phone numbers with a
ByLock account, no messages or mail sent or received by them through the ByLock
application were found. Therefore, according to the source, there is no evidence regarding
how the alleged use of this application could be equated with a criminal act. In addition, the
source specifies that they both denied that they used such an application.
12.
According to the source, reference is made in the indictment to two witnesses who
allegedly remember Mr. and Ms. Göksan from the time of their studies at the university
during the period 2008–2012 and also from the time that they were trainee judges and
prosecutors, in 2014.
13.
On the basis of those witness statements, Ms. Göksan was formally charged with the
following acts: (a) use of ByLock; (b) residing at the Fethullah Gülen group’s student
houses while studying at the university (2008–2012); (c) being the person in charge of one
of the Gülen group’s student houses while studying at the university (2008–2012); (d)
being the person in charge of more than one of the Gülen group’s student houses while
studying at the university (2008–2012); (e) being the person in charge of the Gülen group’s
members at the faculty while studying at the university (2008–2012); (f) being the person in
charge of the Gülen group’s student houses and its members at the faculty while studying at
the university (2008–2012); (f) being the person elected to the committee for the
preparation of the yearbook during her traineeship to be a judge and prosecutor (2014); and
(g) having executive functions in the Gülen group while studying at the university (2008–
2012) and during her traineeship to be judge and prosecutor (2014).
14.
With regard to Mr. Göksan, the source indicates that the charges against him are: (a)
use of ByLock; (b) being present at the Gülen group’s student houses for meetings, called
“sohbet” (2008–2012); and (c) residing at the Gülen group’s houses for candidates for
judges and prosecutors during his preparations for the examination and competition to be a
judge and prosecutor (2013).
15.
The source notes that Mr and Ms. Göksan’s alleged involvement with the Gülen
group dates back to their time at university or during their traineeships. All these events
occurred before 2015, before the time that the Gülen group was designated as a terrorist
organization.
16.
In addition, the source states that the witness alleging the presence of Mr. Göksan at
meetings (“sohbet”) in the Gülen group’s student houses mentioned that all the men in their
class at the law faculty participated in those meetings. Therefore, there is nothing in the
Prosecutor’s indictment demonstrating any credible evidence of Mr. and Ms. Göksan’s
membership of an armed terrorist organization or of any tangible or specific criminal act
committed by them.
17.
The source indicates that, after having received the indictment, Mr. and Ms. Göksan
were able to appear for an oral hearing before the Eleventh High Criminal Court of Adana
on 22 January 2018, more than 16 and 15 months, respectively, after their detention. They
were also heard before that court on 30 March 2018, 11 May 2018 and 6 June 2018. They
underlined, during the hearings, that they had not been provided with any tangible evidence
about their use of ByLock and they noted that the witness statements were hearsay, given
under duress or given in the hope of avoiding similar accusations or of keeping a job. In
addition, the source reports that neither of the witnesses were present during the hearings
for cross-examination. In this regard, the source alleges that due process was not observed
and that the detention of Mr. and Ms. Göksan is arbitrary.
18.
In addition, according to the source, Ms. Göksan indicated during the hearings that,
despite her precarious health condition resulting from severe migraines, she had not had
access to a medical doctor for more than four months. The source explains furthermore that,
given the high number of detainees in the cell, they are obliged to sleep in turns and a bed is
used by two or three persons.
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19.
The source reports that, on 6 June 2018, Ms. Göksan was sentenced to nine years
and nine months of imprisonment and Mr. Göksan was sentenced to seven years and six
months of imprisonment. The source specifies that, according to the judgment, with respect
to the use of ByLock, other than the alleged association of Mr. and Ms. Göksan’s phone
numbers with a ByLock account, no messages or mail were sent or received by them
through the ByLock messaging application. On 25 February 2019, Mr. and Ms. Göksan’s
appeal to the Regional Court of Justice was rejected and the judgment of the Eleventh High
Criminal Court of Adana was upheld.
20.
Mr. and Ms. Göksan appealed to the Supreme Court of Cassation on 28 February
2019; the appeal is still pending.
(c)
Legal analysis
(i)
Deprivation of liberty under category I
21.
According to the source, Mr. and Ms. Göksan’s deprivation of liberty falls under
category I, given that many articles of Turkish Law 2802 have been violated and their
status as judges has been completely ignored. The argument contending that, as members of
a terrorist organization, Mr. and Ms. Göksan were committing an aggravated felony and
were thus in flagrante delicto is without merit. In addition, the procedural requirements with
respect to the investigation process, arrest, detention and sentencing of a judge were not
respected by the authorities.
22.
In particular, regarding the arrest in flagrante delicto, the source argues that Mr. and
Ms. Göksan were not committing a crime at the time of their respective arrests. Nothing is
alleged in this regard other than that, as a member of a terrorist organization, Mr. and Ms.
Göksan were committing an aggravated felony all the time and they were thus in flagrante
delicto. As explained before, such an argument is without merit. Legally basing the arrest
and detention on such reasoning is evidence of the arbitrariness of the arrest and detention
of Mr. and Ms. Göksan.
(ii)
Deprivation of liberty under category II
23.
The source claims that Mr. and Ms. Göksan’s deprivation of liberty also falls under
category II as employed by the Working Group. They both deny the allegation that they
downloaded and used the ByLock application, which is the main reason for their
deprivation of liberty. The source argues that, even if Mr. and Ms. Göksan did use the
ByLock application, it would have been merely an exercise of their right to freedom of
expression.
(iii)
Deprivation of liberty under category III
24.
The source considers that their deprivation of liberty also falls under category III as
employed by the Working Group. The source claims that the status of Mr. and Ms. Göksan
as judges has been completely ignored at every step of the proceedings and trial. All related
provisions of Turkish Law 2802 were violated under the pretext of the two individuals
being arrested in flagrante delicto.2
25.
In addition, the source recalls that Mr. Göksan was only able to appear before a
court more than 16 months after his detention. Moreover, the source contends that the
witness statements in this case were not substantiated by any piece of evidence. The
statements were either hearsay, given under duress or given in the hope of avoiding similar
accusations or of keeping a job. Neither of the two witnesses were present at any of the
hearings for cross-examination.
2 The source notes that such an interpretation of the concept of flagrante delicto has been recently
found inadmissible by the European Court of Human Rights, in Alparslan Altan v. Turkey, Case No.
12778/17, judgment dated 16 April 2019.
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(iv)
Deprivation of liberty under category V
26.
Finally, the source claims that Mr. and Ms. Göksan’s deprivation of liberty is
arbitrary, since it constitutes discrimination on the basis of political or other opinion or
status.
Response from the Government
27.
On 15 May 2019, 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 15 July 2019, detailed information about the
current situation of Mr. and Ms. Göksan and to clarify the legal provisions justifying their
detention, as well as its compatibility with the obligations of Turkey under international
human rights law, in particular with regard to the treaties ratified by the State. Moreover,
the Working Group called upon the Government of Turkey to ensure the physical and
mental integrity of Mr. and Ms. Göksan.
28.
On 15 July 2019, the Government of Turkey submitted its reply.
29.
The Government explains that an arrest warrant was issued for Mr. Göksan on the
basis of an investigation launched by the Adana Chief Public Prosecutor’s Office, charging
him with membership of an armed terrorist organization and attempting to overthrow the
constitutional order. Accordingly, he was taken into custody on 19 July 2016 at his house.
He was informed of his legal rights and the charges against him. He gave his testimony in
the presence of a lawyer. He was brought before a judge on 20 July 2016. Adana Sixth
Magistrates’ Office, after listening to Mr. Göksan in the presence of his lawyer and
evaluating the evidence collected thus far, decided that the grounds that would justify his
detention were not met and therefore ruled on his release in accordance with article 109/3-b
of the Code of Criminal Procedure. New evidence was collected as the investigation
continued, and Mr. Göksan was called again by the Adana Chief Public Prosecutor’s Office.
However, according to the Government, he did not present himself and could not be
reached. Accordingly, Adana Sixth Magistrates’ Office issued a warrant for his arrest, in
accordance with article 94 of the Code of Criminal Procedure.
30.
The Government reports that, on 5 September 2016, Mr. Göksan was identified
during a routine highway control by law enforcement officials and was taken into custody
in pursuance of the arrest warrant noted above. On the same day, he was brought before a
judge and he gave his testimony in the presence of his lawyer. The Court, considering the
gravity of the crime he is charged with and the detection of his use of the ByLock
application, which is commonly used by members of FETÖ as a platform for
communication, ordered his detention in accordance with articles 100 and 101 of the Code
of Criminal Procedure.
31.
According to the Government, the indictment against Mr. Göksan was issued on 18
July 2017. He was sentenced to seven years and six months of imprisonment for being a
member of an armed terrorist organization. His lawyer contested the decision and appealed
to the Regional Court of Justice on 1 October 2018. On 25 February 2019, the Regional
Court of Justice upheld the decision of imprisonment. He therefore appealed to the
Supreme Court of Cassation on 28 March 2019. The case is currently before the Supreme
Court of Cassation.
32.
With regard to Ms. Göksan, the Government submits that she was taken into custody
on 14 October 2016 on the basis of an arrest warrant issued by Adana Sixth Magistrates’
Office. She was charged with membership of an armed terrorist organization. She was also
informed of her legal rights and the charges against her and gave her testimony in the
presence of a lawyer. The Adana Second Magistrates’ Office took her testimony in the
presence of her lawyer on the same day. It ruled on her detention in accordance with
articles 100 and 101 of the Code of Criminal Procedure, considering the gravity of the
crime she is charged with and the detection of her use of the ByLock application.
33.
The Government reports that the indictment concerning Ms. Göksan was issued on
18 July 2017. She was sentenced to nine years and nine months of imprisonment for being a
member of an armed terrorist organization. Her lawyer contested the decision and appealed
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to the Regional Court of Justice on 1 October 2018. On 25 February 2019, the Regional
Court of Justice upheld the decision of imprisonment. She therefore appealed to the
Supreme Court of Cassation on 28 March 2019. The case is currently before the Supreme
Court of Cassation.
34.
The Government therefore submits that all proceedings of arrest, custody and
detention were carried out by independent courts based on reasoned decisions. Furthermore,
reasoned decisions of the courts of first instance were also examined and upheld by higher
courts upon the appeals made by Mr. and Ms. Göksan.
35.
The Government adds that Mr. and Ms. Göksan have lodged multiple applications
before the Constitutional Court, which found them inadmissible (in some cases on the basis
of the non-exhaustion of other domestic remedies).
36.
Regarding the allegations of arbitrary detention of Mr. and Ms. Göksan prior to their
conviction, the Government stressed that the relevant courts ruled on their detention during
the investigation and prosecution stages because of the gravity of the crime of being a
member of a terrorist organization, as well as the detection of their use of the ByLock
application.
37.
On the issue of the legal grounds justifying their detention, the Government argues
that it must determine whether there is reasonable doubt that an offence has been
committed in order for a person to be deprived of liberty. Furthermore, the Government
recalls that there should also be a requirement of public interest which can justify the
deprivation of liberty.
38.
The Government consequently submits that a person’s use of ByLock constitutes a
reasonable doubt that he or she is or may have been a member of FETÖ for a number of
reasons, as confirmed by various decisions rendered by national courts: (a) the ByLock
application was assessed through technical procedures such as reverse engineering, analysis
of encryption, analysis of network behaviour and the codes of the servers connected; and (b)
it was observed that the ByLock application was designed to encrypt each message sent
with a different encryption in order to ensure highly encrypted communication over an
Internet connection.
39.
The Government further submits that the proof supporting the fact that the ByLock
application was made available for FETÖ members under the disguise of a global
application is as follows: (a) there are some Turkish expressions in the source codes of the
application; (b) user names, group names and most of the codes that have been decrypted
comprise Turkish expressions; (c) almost all of the contents that have been decrypted are in
Turkish; (d) although the administrator of the application’s server claimed that they blocked
access to the application with IP addresses from the Middle East, almost all blocks were
aimed at IP addresses from Turkey; and (e) those wishing to download the application were
obliged to access it over a virtual private network in order to disguise the identities of the
users accessing it from Turkey and to disguise the communication. In addition, almost all
the searches for ByLock using the Internet search engine Google were made by users from
Turkey and there has been an increase in Google searches for the application as of the date
of blocking access to the application by those with IP addresses in Turkey. Moreover, posts
were shared promoting FETÖ, mostly through ByLock-related online media (social media,
web sites, etc.) using fake accounts and ByLock, which had more than 200,000 users but
was known by neither the Turkish public nor the international community before the
attempted coup d’état in Turkey on 15 July 2016.
40.
The Government further argues that it was established that signing up to the
application was not enough to initiate contact with other users of the system: user names or
codes, provided mostly face to face or through an intermediary (courier, existing ByLock
user, etc.), needed to be added by both sides in order to communicate with each other. It
was designed in a way that would allow communication only after both users added each
other.
41.
Moreover, according to the Government, voice calls, instant messaging, email
delivery and file transfer could be carried out with the application. It was also assessed that
the organizational and communication needs of the users were met by the application and
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they did not need any other communication tool. As all communications were transmitted
over the server, the groups created and the contents of the communications could be
monitored and controlled by the administrator of the application. Furthermore,
correspondence was deleted automatically from the device after specific periods without
requiring a manual process. This, the Government submits, indicates that the system was
designed in a way to maintain communication security, even if users forgot to delete the
data. Therefore, it has been established that the ByLock application was designed in a way
to prevent access to the past data and correspondence of the users if the device was seized
as a result of a probable judicial proceeding. In addition, the server and communication data
of the application were encrypted in the application’s database; this is regarded as an
additional security measure in order to prevent the identification of users and ensure the
security of communications.
42.
The Government submits that, in order to disguise themselves, the users set unique
and very long passwords. According to analysis, more than half of the passwords consisted
of 9 or more digits and some consisted of 38 digits. Instead of downloading the application
from online application stores, after a certain date the application was uploaded manually to
the devices of users. It was also observed that almost all of the messages obtained and
analysed included organizational contacts and activities that corresponded to the jargon of
the organization.
43.
Finally, the Government argues that it was understood from the statements of FETÖ
members who were under judicial control proceedings (custody, arrest, apprehension, etc.)
after the attempted coup d’état on 15 July that ByLock was used as an organizational
communication tool by members of FETÖ.
44.
Consequently, the Government submits that the detection of Mr. and Ms. Göksan’s
use of ByLock constitutes a reasonable doubt concerning their membership of FETÖ. In
relation to the presence of public interest, which is the second requirement for detention
exceeding a certain period, the Government emphasizes that Mr. and Ms. Göksan were
charged with being a member of an armed terrorist organization that orchestrated and
carried out the attempted coup d’état on 15 July 2016, which was aimed at demolishing the
constitutional order in Turkey and overthrowing the elected President, the Parliament and
the Government. FETÖ killed 251 Turkish citizens during that attempted coup d’état.
Therefore, there is clearly a public interest for the courts to exercise judicial control
measures against persons who are charged with being a member of such a terrorist
organization, which posed a threat to public order and security.
45.
Furthermore, the Government claims that, in their decisions on the continued
detention of Mr and Ms. Göksan, the relevant courts took into consideration that the gravity
of the crime they were charged with, the evidence collected against them and the fact that
the crime of being a member of an armed terrorist organization is among the crimes
stipulated in article 100 of the Code of Criminal Procedure, regarding which a ground for
detention is deemed to exist, constituted legal grounds for their detention before they were
convicted.
46.
The Government also rebuts the allegations made by the source regarding the
periods of detention and argues that both Mr. and Ms. Göksan were brought before a judge
on the day of their arrest or the following day, despite the fact that they were arrested
during the state of emergency which would have justified much longer periods for custody.
Both of their indictments were prepared in due course, despite the tremendous amount of
cases before the judiciary.
47.
The Government argues that the proceedings against them were carried out swiftly
and in accordance with the international obligations of Turkey, despite the fact that Turkey,
during much of the time they were in detention, had resorted to the right of derogation from
its obligations under the European Convention for the Protection of Human Rights and
Fundamental Freedoms and the International Covenant on Civil and Political Rights and
had already submitted notifications of derogation to the Council of Europe in accordance
with article 15 of the European Convention for the Protection of Human Rights and
Fundamental Freedoms and to the Secretariat of the United Nations in accordance with
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article 4 of the International Covenant on Civil and Political Rights, concerning the rights
prescribed therein.
48.
With regard to the lawfulness of the detention after their conviction, the Government
submits that Mr. and Ms. Göksan were convicted by competent courts based on reasoned
judgments. These judgments by the independent judiciary, as well as all proceedings
throughout the trial processes, were in accordance with the national legislation of Turkey.
The conformity of national legislation with the international obligations of Turkey,
particularly those concerning human rights, is guaranteed in the Constitution of Turkey (in
its article 90).
49.
The Government particularly emphasizes that the judgments regarding Mr. and Ms.
Göksan are not yet finalized as both are currently before the Supreme Court of Cassation.
50.
The Government therefore dismisses the source’s allegations of arbitrary detention
after Mr. and Ms. Göksan were convicted and sentenced as unsubstantiated since both
convictions were upheld by competent courts on the basis of reasoned decisions. Equally,
the investigation and the prosecution phases that led to the convictions were carried out in
accordance with the relevant legislation and international obligations of Turkey.
51.
With regard to the conditions of detention, the Government submits that Ms. Göksan
was first taken to Tarsus Penal Institution for Women on 14 October 2016. She was
transferred to Tarsus Campus of Penal Institutions on 21 June 2017, where she remains.
The ward where she is located houses 17 persons; it has a separate yard measuring 33
square metres, doors to which are opened every day at 6.30 a.m. and closed at 7.30 p.m.
The ward is two-storied. The lower floor, which measures 37 square metres, houses the
main living space, toilets, a bathroom, two sinks and a kitchen with a separate sink. The
upper floor also measures 37 square metres and is used as a dormitory.
52.
The Government argues that Ms. Göksan attended sports events and volleyball
games using the shuttle of the facility on 18, 24 and 25 September and 2 October 2018. She
is also currently attending a sewing class for home textiles which she started taking on 20
December 2018. She makes weekly phone calls and is visited often by her family.
53.
The Government also argues that all sentenced and pretrial detainees in the Tarsus
Campus of Penal Institutions receive physical examinations from the facility’s doctor upon
written request. They are transferred to hospitals for further examination or treatment upon
the approval of the facility’s doctor.
54.
The Government adds that, according to Ms. Göksan’s file at the Tarsus Campus of
Penal Institutions, she has received physical examinations and treatment from the facility’s
doctor 31 times since her detention in the facility. She was transferred to the dermatological
ward of the Tarsus State Hospital five times. On one occasion, she submitted a written
request not to be transferred for treatment. Reports also show that she has received a
physical examination and treatment once at the emergency ward, once at the cardiology
ward, once at the ward for internal diseases and once at the eye ward of the Tarsus State
Hospital.
55.
In relation to Mr. Göksan, the Government submits that he is serving his sentence in
Osmaniye No. 1 T-Type Penal Institution. Mr. Göksan has been occupying a room built for
eight people with seven other persons in this facility. The room has all necessary amenities
such as an electric fan, a kettle, a fridge, a television, an electric razor and a hair dryer. The
Government argues that Mr. Göksan benefits from all the rights of a sentenced person,
including food, bed, bath, telephone calls, health services and basic supplies from the
facility’s canteen. He makes weekly phone calls to his family and to his wife. According to
his file at the Osmaniye No. 1 T-Type Penal Institution, he has had various complaints
regarding his health, for all of which he received a physical examination and was prescribed
the necessary medication by the facility’s doctor.
56.
In the light of the explanations provided above, the Government argues that the
allegations communicated by the source to the Working Group on Arbitrary Detention are
unfounded and should therefore be dismissed.
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Further comments from the source
57.
The reply of the Government of Turkey was sent to the source for further comments
on 15 July 2019 and the source submitted such further comments on 18 July 2019. In those
further comments, the source rejects the submissions made by the Government as
superficial and lacking in detail and repeats the initial allegations.
Discussion
58.
The Working Group thanks the source and the Government for their submissions
and appreciates the cooperation and engagement of both parties in this matter.
59.
As a preliminary issue, the Working Group wishes to clarify that the procedural
rules governing its consideration of communications on alleged cases of arbitrary detention
are contained in its methods of work. There is no provision in the methods of work that
prevents the Working Group from considering communications owing to the lack of
exhaustion of domestic remedies in the country concerned. The Working Group has also
confirmed in its jurisprudence that there is no requirement for petitioners to exhaust
domestic remedies in order for a communication to be considered admissible.3
60.
As a further preliminary issue, the Working Group notes that the situation of Mr.
and Ms. Göksan falls within the scope of the derogations that the Government made under
the International Covenant on Civil and Political Rights. 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.4
61.
While acknowledging the notification of those derogations, the Working Group
emphasizes that, in the discharge of its mandate, it is also empowered under paragraph 7 of
its methods of work to refer to the relevant international standards set forth in the Universal
Declaration of Human Rights and to customary international law. Moreover, in the present
case, articles 9 and 14 of the Covenant are most relevant to the alleged detention of Mr. and
Ms. Göksan. As the Human Rights Committee has stated, States parties derogating from
articles 9 and 14 must ensure that such derogations do not exceed those strictly required by
the exigencies of the situation.5
62.
In determining whether Mr. and Ms. Göksan’s deprivation of liberty is arbitrary, the
Working Group has regard to the principles established in its jurisprudence to deal with
evidentiary issues. If the source has presented a prima facie case for breach of international
requirements constituting arbitrary detention, the burden of proof should be understood to
rest upon the Government if it wishes to refute the allegations. The Government can meet
this burden of proof by producing documentary evidence in support of its claims.6 Mere
assertions by the Government that lawful procedures have been followed are not sufficient
to rebut the source’s allegations (A/HRC/19/57, para. 68).
3 See, for example, opinions No. 19/2013 and No. 11/2000. See also opinions No. 41/2017, para. 73,
No. 38/2017, para. 67, and No. 11/2018, para. 66.
4 Depositary notification C.N.580.2016.TREATIES-IV.4.
5 Human Rights Committee general comment No. 29 (2001) on derogations from provisions of the
Covenant during a state of emergency, para. 4. See also general comment No. 32 (2007) on the right
to equality before courts and tribunals and to a fair trial, para. 6; and general comment No. 35 (2014)
on liberty and security of person, paras. 65–66.
6 See opinion No. 41/2013, in which the Working Group noted that the source of a communication and
the State party did not always have equal access to the evidence and frequently the State party alone
had the relevant information. In that opinion, the Working Group also recalled that, where it was
alleged that a person had not been afforded, by a public authority, certain procedural guarantees to
which he or she was entitled, the burden to prove the negative fact asserted by the applicant was on
the public authority, because the latter was generally able to demonstrate that it had followed the
appropriate procedures and applied the guarantees required by law by producing documentary
evidence of the actions that were carried out (Ahmadou Sadio Diallo (Republic of Guinea v.
Democratic Republic of the Congo), Merits, Judgment, I.C.J. Reports 2010, p. 661, para. 55).
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10
63.
Turning to the specific allegations, the Working Group notes that the source has
argued that the detention of Mr. and Ms. Göksan is arbitrary, falling into categories I, II, III
and V of the Working Group. The Government, while not addressing the categories of the
Working Group separately, denies all allegations and submits that the arrest and detention
of Mr. and Ms. Göksan were carried out in accordance with all international human rights
obligations undertaken by Turkey. The Working Group shall proceed to examine the
submissions made by the source in turn.
64.
The source argues that the detention of Mr. and Ms. Göksan falls under category I
given that many articles of Turkish Law 2802 have been violated and their status as judges
was completely ignored. The Government argues that the arrests of both Mr. and Ms.
Göksan were carried out in accordance with a duly issued arrest warrant which legitimized
the deprivation of liberty of both individuals.
65.
The Working Group recalls that it considers detention as arbitrary and falling under
category I if such detention lacks legal basis. In the present case, the Working Group notes
that it appears that Mr. and Ms. Göksan were both arrested in pursuance of an arrest
warrant.
66.
Further to that, the Working Group must examine whether Mr. and Ms. Göksan
were promptly notified of the reasons of their arrest and of the charges against them. In this
regard, the Government contends that Mr. Göksan was informed of the charges on the date
of his initial arrest, on 19 July 2016. According to the Government, he was charged with
membership of an armed terrorist organization and attempting to overthrow the
constitutional order. Similarly, Ms. Göksan was informed of the reasons for her arrest and
charges against her on the day of her arrest, namely 14 October 2016. The Government
argues that she was charged with being a member of an armed terrorist organization. The
source, on the other hand, alleges that neither Mr. nor Ms. Göksan were given any specific
information concerning the reasons for the arrest or the charges against them and that the
authorities only accused them of being members of FETÖ.
67.
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 the time of arrest but also
promptly informed of any charges against them. As explained by the Human Rights
Committee in its general comment No. 35 (2014) on liberty and security of person, the
obligation encapsulated in article 9 (2) has two elements: (a) information about the reasons
for arrest must be provided immediately upon arrest; and (b) there must be prompt
information about the charges provided thereafter (para. 24).7
68.
The requirement to provide reasons for the arrest of an individual also has a
qualitative element in that, as noted by the Human Rights Committee, the reasons must
include not only the general legal basis of the arrest, but also enough factual information to
indicate the substance of the complaint, such as the wrongful act and the identity of an
alleged victim.8 The Working Group considers that the Government has failed to prove how
this requirement of article 9 (2) was met in the case of either Mr. or Ms. Göksan. The
Working Group accepts that the full indictment against a person would take time to provide
but the Turkish authorities should have been able to provide Mr. and Ms. Göksan, at the
time of their respective arrests, with the factual specifics to indicate the substance of the
crime they had allegedly committed.
69.
In fact, the Working Group notes that the Government has not provided any
information on the evidence against Mr. and Ms. Göksan that would justify their detention
and that the only evidence against them is their alleged use of the ByLock application. In
these circumstances, the Working Group considers that the Government has not established
that Mr. and Ms. Göksan were promptly informed of the charges against them nor the
reason for their arrest at the time of arrest, nor substantiated that their detention meets the
criteria of reasonableness and necessity. The Working Group recalls that a derogation under
7 See also, for example, opinions No. 1/2017, No. 6/2017, No. 30/2017, No. 2/2018, No. 4/2018, No.
42/2018, No. 43/2018 and No. 79/2018.
8 Human Rights Committee general comment No. 35 (2014) on liberty and security of person, para. 25.
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11
article 4 of the Covenant cannot justify a deprivation of liberty that is unreasonable or
unnecessary.9 The Working Group therefore concludes that the arrest and detention of Mr.
and Ms. Göksan amounted to a violation of their rights under articles 3 and 9 of the
Universal Declaration of Human Rights and articles 9 (1) and 9 (2) of the Covenant and
thus fall under category I of the Working Group.
70.
The source has further argued that the detention of Mr. and Ms. Göksan falls under
category II since their arrest and detention are based on the allegation that they downloaded
and used the application ByLock. The source argues that, even if Mr. and Ms. Göksan did
use the ByLock application, it would have been merely an exercise of their right to freedom
of expression.
71.
The Government denies these allegations, arguing that Mr. and Ms. Göksan were
arrested and detained as a result of their engagement in criminal activity, namely being part
of a terrorist organization, and cites the usage of the ByLock application by Mr. and Ms.
Göksan as evidence of such criminal activity.
72.
In the present case, the Working Group observes that the core of the allegations
against Mr. and Ms. Göksan, as presented by the Government, is their alleged alliance with
the Gülen group, which, according to the Government, stems from them having
downloaded and used the ByLock application on their telephones. The Government has
made detailed submissions on how the ByLock application was used by FETÖ. However,
the Working Group observes that these explanations are rather broad and concern how the
ByLock application was used by the Gülen group in general, but do not provide any
detailed explanation as to how the alleged use of the application by either Mr. or Ms.
Göksan could be equated with a criminal act. Nor has the Government presented any
evidence that either Mr. or Ms. Göksan were indeed members of FETÖ.
73.
The Working Group takes note of the report on the impact of the state of emergency
on human rights in Turkey of the Office of the United Nations High Commissioner on
Human Rights (OHCHR). This report contains an examination of 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. Paragraph 65 of the report contains the following conclusion:
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.
74.
In paragraph 48 of that report, it is stated that:
Based on credible reports from a variety of sources, OHCHR documented increased
executive control over, and interference with the judiciary and prosecution service;
the arrest, dismissal and arbitrary transfer of judges and prosecutors to other courts;
and recurring instances of threats against lawyers.
75.
The Working Group notes that the cases of Mr. and Ms. Göksan appear to follow the
pattern described in the report.
76.
The Working Group is mindful of the state of emergency situation which was
declared in Turkey at the time. However, while the National Security Council of Turkey
had already designated FETÖ as a terrorist organisation in 2015, the fact that the
9 Ibid., para. 66; see also general comment No. 29 (2001) on derogations from provisions of the
Covenant during a state of emergency.
A/HRC/WGAD/2019/53
12
organization was ready to use violence had not become apparent to Turkish society until the
attempted coup d’état in July 2016. As noted by the Council of Europe High Commissioner
for Human Rights:
Despite deep suspicions about its motivations and modus operandi from various
segments of the Turkish society, the Fethullah Gülen movement appears to have
developed over decades and enjoyed, until fairly recently, considerable freedom to
establish a pervasive and respectable presence in all sectors of Turkish society,
including religious institutions, education, civil society and trade unions, media,
finance and business. It is also beyond doubt that many organisations affiliated to
this movement, which were closed after 15 July, were open and legally operating
until that date.10
77.
In the light of this, the Council of Europe Commissioner for Human Rights pointed
out that there was therefore a need, when criminalizing membership and support of that
organization, to distinguish between persons who engaged in illegal activities and those
who were sympathizers or supporters of, or members of legally established entities
affiliated with the movement, without being aware of its readiness to engage in violence.11
78.
The Working Group observes that the core of the allegations against Mr. and Ms.
Göksan is their alleged perceived alliance with the Fethullah Gülen group about 10 years
ago, which is said to have manifested mainly through the use of the ByLock
communications application. The Working Group notes the failure by the Government of
Turkey to show how the mere use of a regular communications application such as ByLock
by Mr. and Ms. Göksan constituted an illegal criminal activity, as well as the absence of
any evidence that they were in fact part of FETÖ. Noting the widespread reach of the
Fethullah Gülen movement, the Council of Europe High Commissioner for Human Rights
noted that it would be rare for a Turkish citizen never to have had any contact or dealings
with this movement in one way or another.12 The Working Group takes note of the report of
the Special Rapporteur on the promotion and protection of the right to freedom of opinion
and expression, who visited Turkey in November 2016. Several examples were brought to
the attention of the Special Rapporteur of people arrested based purely on the presence of
ByLock on their computer and ambiguous evidence.13 The Working Group also notes the
recent findings of the Human Rights Committee concerning communication No. 2980/2017,
in which it considered that detention on the basis of evidence of the use of the ByLock
application did not meet the criteria of reasonableness and necessity.14
79.
In the present case, it is clear to the Working Group that, even if Mr. and Ms.
Göksan did use the ByLock application, which is an allegation denied by them, it would
have been merely an exercise of their freedom of expression. To this end, the Working
Group notes that freedom of opinion and freedom of expression as expressed in article 19
of the Covenant are indispensable conditions for the full development of the person; they
are essential for any society and in fact they constitute the foundation stone for every free
and democratic society.15 According to the Human Rights Committee, it can never become
necessary to derogate from article 19 during a state of emergency.16
80.
Freedom of expression includes the right to seek, receive and impart information and
ideas of all kinds regardless of frontiers and this right includes the expression and receipt of
communications of every form of idea and opinion capable of transmission to others,
including political opinions.17 Moreover, article 19 (2) of the Covenant protects all forms of
10 Council of Europe, memorandum on the human rights implications of the measures taken under the
state of emergency in Turkey, document CommDH(2016)35, para. 20.
11 Ibid., para. 21.
12 Ibid., para. 20.
13 A/HCR/35/22/Add.3, para. 54.
14 CCPR/C/125/D/2980/2017.
15 Human Rights Committee general comment No. 35 (2014) on liberty and security of person, para. 2.
16 Ibid., para. 5.
17 Ibid., para. 11.
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expression and the means of their dissemination, including all forms of audiovisual as well
as electronic and Internet-based modes of expression.18
81.
The Working Group recalls that this is not the first time it is examining the arrest
and prosecution of Turkish nationals on the basis of alleged use of the ByLock application
as the key manifestation of an alleged criminal activity.19 The Working Group recalls that,
in those instances, it concluded that, in the absence of a specific explanation of how the
alleged mere use of the ByLock application constituted a criminal activity by the individual,
their detention was arbitrary. The Working Group regrets that its views in those opinions
have not been respected by the Turkish authorities and that the present case follows the
same pattern.
82.
The Working Group concludes that the arrest and detention of Mr. and Ms. Göksan
resulted from their exercise of the rights guaranteed by article 19 of the Universal
Declaration of Human Rights and of the Covenant and fall under category II.
83.
Given its finding that the deprivation of liberty of Mr. and Ms. Göksan is arbitrary
under category II, the Working Group wishes to emphasize that no trial of either Mr. or Ms.
Göksan should have taken place. However, the trials did take place and the source has
submitted that there were severe violations of their right to a fair trial and that their
subsequent detention therefore falls under category III of the Working Group.
84.
The source argued that the detention of Mr. and Ms. Göksan is arbitrary under
category III because they did not appear before the court until 16 and 15 months,
respectively, after their detention; that there was no substantial evidence presented during
the trial; that they did not have full access to all the evidence against them and that the
witnesses for the prosecution were not present during the trial for cross-examination. The
Government denies these allegations.
85.
The Working Group initially observes that, in principle, a delay of 16 months from
the moment of arrest to the time of trial is not automatically a breach of article 14 (3) of the
Covenant as there can be legitimate reasons justifying such a delay. As the Human Rights
Committee noted in paragraph 35 of its general comment No. 32 (2007) on the right to
equality before courts and tribunals and to a fair trial, what is reasonable has to be assessed
in the circumstances of each case, taking into account mainly the complexity of the case,
the conduct of the accused, and the manner in which the matter was dealt with by the
administrative and judicial authorities. The Working Group is thus unable to conclude that
the delay of 16 and 15 months between the arrests and trials of Mr. and Ms. Göksan,
respectively, constituted a breach of article 14 (3) of the Covenant.
86.
However, the Working Group recalls that the right to have adequate time and
facilities for the preparation of defence pursuant to article 14 (3) (b) must include access to
documents and other evidence; this access must include all materials20 that the prosecution
plans to offer in court against the accused or that are exculpatory. Exculpatory material
should be understood as including not only material establishing innocence but also other
evidence that could assist the defence.21 The Government has provided no explanation as to
why the defence was denied access to materials, including Excel sheets, used by the
prosecution against Mr. and Ms. Göksan. The Working Group thus finds a breach of article
14 (3) (b) of the Covenant.
87.
Moreover, the Government failed to respond to the allegation that the two witnesses
who were key to the case of the prosecution were not present during the trials of Mr. and
Ms. Göksan, thus preventing the defence from cross-examining those witnesses. The
Working Group recalls Human Rights Committee general comment No. 32 (2007) on the
right to equality before courts and tribunals and to a fair trial, in paragraph 39 of which the
Committee stated that article 4 (3) (e) of the Covenant guaranteed the right to have
18 Ibid., para. 12.
19 See, for example, opinions No. 42/2018 and No. 44/2018.
20 CCPR/C/CAN/CO/5, para. 13.
21 Human Rights Committee general comment No. 32 (2007) on the right to equality before courts and
tribunals and to a fair trial, para. 33.
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14
witnesses admitted that were relevant for the defence and to be given a proper opportunity
to question and challenge witnesses against them at some stage of the proceedings.
88.
The Government has provided no explanation as to why the two witnesses were not
present during the proceedings and what efforts were made to ensure that the defence was
able to cross-examine those witnesses through other means, if their presence was not
possible for some legitimate reason. The Working Group therefore finds a breach of the
principle of equality of arms in the proceedings and a violation of article 10 of the
Universal Declaration of Human Rights and article 14 (3) (e) of the Covenant.
89.
In the view of the Working Group, these two breaches of the principle of equality of
arms amounted to a serious breach of the right of Mr. and Ms. Göksan to a fair trial and
were of such gravity as to give their detention an arbitrary character, falling under category
III.
90.
Finally, the source alleged that the detention of Mr. and Ms. Göksan falls under
category V since it constitutes discrimination on the basis of political or other opinion. The
Government rejects this allegation, explaining that their detention was due to their alleged
membership of a terrorist organization.
91.
The present case is the tenth case concerning individuals with alleged links to the
Gülen movement that has come before the Working Group in the past two years.22 In all the
cases, the Working Group found that the detention of the concerned individuals was
arbitrary, and it appears that a pattern is emerging whereby those with alleged links to the
Gülen movement are being targeted on the basis of their political or other opinion.
Accordingly, the Working Group finds that the Government of Turkey detained Mr. and Ms.
Göksan on the basis of a prohibited ground for discrimination, and that the case falls within
category V.
92.
Noting that Mr. and Ms. Göksan were both judges prior to their arrests, in
accordance with paragraph 33 (a) of its methods of work, the Working Group refers the
present case to the Special Rapporteur on the independence of judges and lawyers.
93.
The Working Group notes the allegation made by the source that Ms. Göksan was
denied access to doctor for her health conditions and that she was being held in
overcrowded conditions. While the Working Group notes the denial of these allegations by
the Government, it nevertheless wishes to remind the Government that, in accordance with
article 10 of the Covenant, all persons deprived of their liberty must be treated with
humanity and with respect to the inherent dignity of the human person and that denial of
medical assistance constitutes a violation of the United Nations Standard Minimum Rules
for the Treatment of Prisoners (the Nelson Mandela Rules), in particular, rules 24, 25, 27
and 30 thereof.
94.
The Working Group welcomes the lifting of the state of emergency in Turkey in
July 2018 and the revocation of derogations made from its obligations under the Covenant.
However, the Working Group is aware that a large number of individuals were arrested
following the attempted coup d’état of 15 July 2016, including judges and prosecutors, and
that many remain in detention and are still undergoing trial. The Working Group urges the
Government to resolve these cases as quickly as possible in accordance with its
international human rights obligations.
95.
The Working Group also notes a significant increase in the number of cases brought
to it in the last two years concerning arbitrary detention in Turkey.23
96.
The Working Group would welcome the opportunity to conduct a country visit to
Turkey. Given that a significant period has passed since its last visit to Turkey, which took
place 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
22 See also opinions No. 1/2017, No. 38/2017, No. 41/2017, No. 11/2018, No. 42/2018, No. 43/2018,
No. 44/2018 No. 78/2018 and No. 10/2019.
23 Ibid.
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15
looks forward to a positive response to its country visit requests of 15 November 2016 and
8 November 2017.
Disposition
97.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Melike Göksan and Mehmet Fatih Göksan, being in
contravention of articles 2, 3, 9, 10 and 19 of the Universal Declaration of Human
Rights and articles 9, 14, 19 and 26 of the International Covenant on Civil and
Political Rights, is arbitrary and falls within categories I, II, III and V.
98.
The Working Group requests the Government of Turkey to take the steps necessary
to remedy the situation of Melike Göksan and Mehmet Fatih Göksan 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.
99.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Melike Göksan and Mehmet Fatih Göksan
immediately and accord them an enforceable right to compensation and other reparations,
in accordance with international law.
100.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Melike
Göksan and Mehmet Fatih Göksan and to take appropriate measures against those
responsible for the violation of their rights.
101.
In accordance with paragraph 33 (a) of its methods of work, the Working Group
refers the present case to the Special Rapporteur on the independence of judges and lawyers.
102.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
Follow-up procedure
103.
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 Melike Göksan and Mehmet Fatih Göksan have been released and,
if so, on what date;
(b)
Whether compensation or other reparations have been made to Melike
Göksan and Mehmet Fatih Göksan;
(c)
Whether an investigation has been conducted into the violation of Melike
Göksan and Mehmet Fatih Göksan’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.
104.
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.
105.
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.
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16
106.
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.24
[Adopted on 16 August 2019]
24 Human Rights Council resolution 33/30, paras. 3 and 7.