A/HRC/WGAD/2020/51

GE.20-12132(E)



Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its eighty-eighth session, 24–28 August 2020

Opinion No. 51/2020 concerning Arif Komiş, Ülkü Komiş and four

minors whose names are known to the Working Group (Malaysia and

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 42/22.

2.

In accordance with its methods of work (A/HRC/36/38), on 12 December 2019 the

Working Group transmitted to the Government of Malaysia and the Government of Turkey

a communication concerning Arif Komiş, Ülkü Komiş and four minors whose names are

known to the Working Group. The Government of Turkey replied on 10 February 2020 and

the Government of Malaysia replied on 25 February 2020. Turkey is a party to the

International Covenant on Civil and Political Rights while Malaysia is not.

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);

* Seong-Phil Hong did not participate in the discussion of the present case.

United Nations

A/HRC/WGAD/2020/51

General Assembly

Distr.: General

18 September 2020

Original: English

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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.

Arif Komiş, born in 1976, Ülkü Komiş, born in 1982, are Turkish citizens and a

married couple. They have four minor children whose names are known to the Working

Group. The children are Turkish nationals, except for one whose birth the Turkish

authorities in Kuala Lumpur have repeatedly refused to register, and who is therefore

stateless. Prior to their arrest, the Komiş family resided in Kuala Lumpur, Malaysia.

5.

According to the source, Mr. Komiş is a chemistry teacher at Hibiscus International

School (the former Time International School) in Kuala Lumpur, which he joined in 2014.

He is well respected, loved and valued by colleagues, students and parents. He held a valid

residence permit and an employment contract with the school. Prior to this, he contributed

to the rebuilding of the education sector in Kazakhstan and worked as a chemistry teacher

in Tajikistan; he successfully carried out many international science projects in these

countries. Mr. Komiş holds an asylum-seeker certificate from the Office of the United

Nations High Commissioner for Refugees (UNHCR) valid until 9 June 2020, indicating

that he should be protected from forcible return to a country where he claims to face threats

to his life or freedom, pending a final decision on his refugee status.

6.

The source alleges that six members of the Komiş family are among the latest

victims illegally transferred to Turkey from abroad, in the long transnational campaign of

the Government of Turkey against Turkish dissidents in exile. Turkey continues to seek the

cooperation of other States to arrest, often in undercover operations, alleged supporters of

the Hizmet/Gülen movement living outside the country.

7.

According to the source, since October 2016, Turkish nationals in Malaysia have

come under unprecedented attack from the Malaysian authorities, at the request and on

behalf of the Government of Turkey. The abductions and transfers of law-abiding Turkish

citizens in Malaysia sent shockwaves through the Turkish community and prompted most

Turkish families to seek asylum in third countries. However, Mr. Komiş and his family

were unable to leave Malaysia. The Embassy of Turkey had repeatedly refused to register

and issue a passport to their newborn baby, which has left the family stranded in Malaysia.

8.

The source submits that there is clear pattern of denial of consular services and

related deprivations for individuals living abroad who are critical of the policies of the

Government of Turkey, including the cancellation and confiscation of passports, refusal to

extend the validity of passports, and refusal to provide identity cards or passports to

children born to Turkish citizens.

Arrest and detention in Malaysia

9.

The source reports that on the evening of 28 August 2019, at approximately 11.30

p.m., some thirty police officers broke into the Komiş family residence in Kuala Lumpur.

They arrested Mr. Komiş, his wife and their four minor children. Four police officers told

the Komiş family that their passports had been cancelled by the Government of Turkey and

that they should prepare in five minutes for imminent deportation to Turkey. While they

were being given these instructions, around 26 masked police officers entered the apartment

and began searching it. The Komiş family were only able to take some children’s clothes,

and left. Mr. Komiş was handcuffed and put into a police car. After being driven around for

about two or three hours, the other Komiş family members were detained in what appeared

to be an immigration facility (Putrajaya Immigration Office), separately from the other

detainees. It is alleged that a few days prior to these events, Mr. Komiş had informed

UNHCR that a member of the Special Branch police had taken photos of Hibiscus

International School and his vehicle, in what are believed to have been active preparations

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to carry out the operation leading to his arrest and transfer. Mr. Komiş expressed his fear

and asked for resettlement of his family to a safer country.

10.

According to the source, friends and family of the victims did not immediately

realize that they were missing, since they were detained at a late hour on 28 August 2019.

On 29 August 2019, a friend of the Komiş family received an alert through WhatsApp from

one of the family members, indicating that the family had been arbitrarily detained by

approximately 30 immigration officers and that they were being held in Putrajaya

Immigration Office. On 29 August 2019, friends enquiring about the arrest were told by the

authorities that all members of the Komiş family had been arrested on the basis of section

35 (power to arrest person liable to removal) of the Malaysian Immigration Act 1959/63

(Act No. 155).

11.

Reportedly, the treatment of the members of the Komiş family seems to have

changed once the Malaysian police became aware of the WhatsApp message. The police

searched their luggage again but could not find the phone in the suitcase. Later, the police

provided them with temporary papers and forced them onto an aeroplane.

12.

The source submits that the members of the Komiş family did not have any

opportunity to defend their rights before a court. They were never brought before a judicial

authority, nor was there any intention of bringing them before any court to stand whatever

charges the authorities might have had against them. Immediately following their detention,

the Komiş family were forcibly taken and held in Putrajaya Immigration Office, without

any possibility of challenging the lawfulness of their detention before a court under the

relevant provisions in articles 7–12 of the Universal Declaration of Human Rights. Mr.

Komiş was held in Malaysian custody until the following day, when he was transferred

directly to the airport, from where he was forcibly and illegally removed to Turkey, by a

special plane. Ms. Komiş and their four minor children were also held in Malaysian custody

until the following day, when they were forcibly and illegally removed to Turkey.

13.

The source reports that following the detention of the members of the Komiş family,

UNHCR and other United Nations agencies, as well as civil society, were mobilized to stop

their transfer. Malaysian authorities provided neither UNHCR nor other agencies with any

access. Civil society unsuccessfully urged the Government of Malaysia not to transfer the

Komiş family to Turkey.

14.

The source notes that on 30 August 2019, the Prime Minister of Malaysia confirmed

that Malaysia had deported Mr. Komiş and his family, stating in a press conference that

“they had proof that led to their view that he should not be in the country”, without

elaborating on any evidence from the police or other law enforcement agencies. Later that

day, the Minister of Federal Territories told the press that police had evidence to show that

Mr. Komiş “was involved” in terrorism, without elaborating on which actions by Mr.

Komiş were classified as acts of terrorism. During the press conference, the Prime Minister

defended his Government’s actions, without knowledge of the risks facing the victims in

Turkey.

Transfer to Turkey

15.

The source submits that the Komiş family was scheduled for transfer to Turkey on

the evening of 29 August 2019. The evidence and the speed of the events indicated that the

detention of the Komiş family had been planned a long time in advance and that their

detention on 28 August 2019 was only the finalization of the operation by the Malaysian

and Turkish law enforcement agencies. Mr. Komiş was separated from his family and

forcibly taken aboard a private unmarked Turkish plane, which flew him back to Turkey. A

photo of him taken immediately after being taken into custody in Turkey shows visible

marks on his face, suggesting that his face was covered during the flight, either by a helmet

or with some other covering. He was allegedly subjected to torture in police custody.

Although the court reported that there was no torture or ill-treatment, the health report

drafted as he was admitted to prison confirmed the use of torture. Reportedly, there is an

investigation against the police officers who held him in custody.

16.

According to the source, Ms. Komiş and the four children were put on the

commercial Turkish Airlines flight departing Kuala Lumpur at around 11.05 p.m. on 29

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August 2019, headed for Istanbul, Turkey. The plane landed there at around 5.05 a.m. on 30

August 2019.

17.

According to the information received, in Turkey, the Anadolu Agency described

the detention and transfer of Mr. Komiş as an operation by the Turkish intelligence

organization, noting that “intelligence forces arrested the so-called Malaysia chief of the

Fetullah Terrorist Organization (FETÖ) in an operation and brought him back to Turkey,

security sources said on Friday (30 August 2019). Amid continued efforts against FETÖ,

the Turkish National Intelligence Organization caught Arif Komiş, who had allegedly held

senior positions in the terror group in different countries in the past. Arif Komiş was

wanted by Turkey on charges of being a member of an armed terrorist organization.”

Detention in Turkey

18.

According to the source, Mr. Komiş was taken into custody upon arrival, with the

Turkish authorities considering this a “successful operation by the Turkish National

Intelligence Organization”. Ms. Komiş and the four children were released, after the police

confiscated their passports. They then travelled to the city of Manisa, Kirkagac in western

Turkey, to Mr. Komiş’s family.

19.

Reportedly, Mr. Komiş was interrogated and his statement was taken by the

prosecution, but there is no information about which specific charges he is facing. He was

sent to Sincan Prison, near Ankara, until his indictment has been prepared, because it seems

that no charges were pending for him and the whole file against him needed to be newly

fabricated by the prosecution. No court hearing has been scheduled so far in respect of his

case.

Analysis of violations

20.

The source argues that the deprivation of liberty of the Komiş family is arbitrary

under categories I, II, III and V of the Working Group.

21.

The deprivation of liberty of the Komiş family is arbitrary under category I, because

it is clearly impossible to invoke any legal basis justifying it.

22.

The deprivation of liberty of the Komiş family is arbitrary under category II,

because they were not afforded the right to seek and to enjoy in Malaysia asylum from

persecution. In addition, removing a person to a State when there is a genuine risk that the

person will be detained without legal basis or denied the right to a fair trial is not

compatible with the obligations under article 14 of the Universal Declaration of Human

Rights. While it appears that Malaysia has deliberately delayed ratification of the

Convention relating to the Status of Refugees, of 1951, it should nevertheless ensure

adherence to the principle of non-refoulement. Section 8 of the Extradition Act 1992

specifically prohibits extradition in certain circumstances, including when return of

individuals has been requested with the purpose of prosecuting or punishing the person on

account of his or her race, religion, nationality or political opinion.

23.

The detention of the Komiş family is arbitrary under category III, because it failed to

meet any minimum international standard of due process. They were held incommunicado,

denied access to a lawyer, to UNHCR and to friends. They had no possibility of challenging

the lawfulness of their detention before a court of law under the relevant provisions in

articles 7–12 of the Universal Declaration of Human Rights.

24.

The deprivation of liberty of the Komiş family is arbitrary under category V,

because it constitutes a violation of international law for reasons of discrimination based on

political or other opinion.

25.

The source expresses concern at the treatment of Ms. Komiş and the four minor

children. Although the four minors were not under investigation, they were forcibly

removed from their home, detained and deported. As a State party to the Convention on the

Rights of the Child since 1995, the Government of Malaysia is obliged under article 3 (1) of

the Convention to ensure that the best interests of the child are a primary consideration. The

Government of Malaysia has violated its obligations, under article 37 of the Convention to

ensure that the four minors were not subjected to ill-treatment, that their arrest and

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detention was not unlawful or arbitrary, that they were treated with humanity and respect

for their inherent dignity, and that they had prompt access to legal assistance and the right

to challenge the legality of their detention.

Response from the Government of Malaysia

26.

On 12 December 2019, the Working Group transmitted the allegations from the

source to the Government of Malaysia under its regular communications procedure. The

Working Group requested the Government to provide, by 10 February 2020, detailed

information about the circumstances of the Komiş family’s detention and to clarify the legal

provisions justifying their detention, as well as the compatibility of such provisions with the

Government’s obligations under international human rights law, and in particular with

regard to the treaties ratified by the State.

27.

On 4 February 2020, the Government of Malaysia requested an extension in

accordance with paragraph 15 of Working Group’s methods of work, which was granted.

The Government submitted its reply on 25 February 2020. In it, the Government notes with

regret that the information outlined in the summary of the communication is inaccurate, and

submits that on 6 February 2019, the Government of Turkey sent a formal request to the

Royal Malaysia Police to arrest Mr. Komiş and repatriate him to Turkey to enable legal

action to be taken against him in accordance with Turkish domestic laws for his

involvement in FETÖ.

28.

Therefore, the passports of Mr. Komiş and his wife were revoked by the

Government of Turkey on 20 March 2019. The Government of Malaysia notes that as soon

as their passports were revoked, they became liable to be removed under subsection 56 (2)

of the Immigration Act 1959/63.

29.

Consequently, on 28 August 2019, Mr. Komiş and his family members were

arrested by Malaysian authorities under section 35 of the Immigration Act 1959/63. This

provision permits the arrest without a warrant of any person liable to removal from

Malaysia under the Immigration Act 1959/63; it also permits their detention of up to 30

days pending the decision on removal. At the time of the arrest, no other documents were

produced by Mr. Komiş and his family members except their Turkish passports.

30.

The Government further explains that on 29 August 2019, Mr. Komiş and his family

were repatriated to Turkey following the issuance of a removal order pursuant to the

Immigration Act 1959/63. The arrest and detention of Mr. Komiş and his family were not

arbitrary, rather, all actions taken by the Malaysian authorities against the Komiş family

were carried out in conformity with the existing Malaysian laws. Thus, the Government

strongly refutes the allegation that Turkish nationals in Malaysia have come under

unprecedented attack from the Malaysian authorities, at the request and on behalf of the

Government of Turkey, since October 2016.

31.

Turning to the question of whether the repatriation of the Komiş family conforms to

the obligations of Malaysia under international human rights law, the Government submits

that Malaysia is fully cognizant of the principle under article 14 of the Universal

Declaration of Human Rights. The Government is also fully cognizant of the principle of

non-refoulement.

32.

The Government submits that despite not being a State party to the Convention

relating to the Status of Refugees, Malaysia is bound by the principle of non-refoulement,

by virtue of its status as customary international law. In this regard, it is mindful of that

principle in any decision to repatriate an individual to his or her country of origin. The

Government acknowledges that the burden of proof lies on the person who asserts that his

or her expulsion, return, surrender or extradition to another State would put him or her in

danger of being subjected to enforced disappearance. Likewise, a State has the

responsibility to gather and analyse all relevant and available facts as well as supporting

evidence, including that adduced by the person concerned, in order to determine whether

there are substantial grounds for believing that he or she would be in danger of being

subjected to enforced disappearance should a State decide to expel, return, surrender or

extradite him or her to another State.

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33.

In this regard, the Government emphasizes that it has received neither information

nor evidence to show that there are substantial grounds for believing that the Komiş family

would be in danger of being subjected to persecution if repatriated to Turkey. Prior to his

arrest, Mr. Komiş, who was the holder of an employment pass under the Immigration Act

1959/63, at all times, had never communicated any information to the Government or any

of its agencies about being threatened with persecution upon returning to his country.

34.

Furthermore, the Government contends it is universally accepted that any person

cannot enter or remain in any sovereign country apart from his or her country of origin

without any valid travel documents. The revocation of Mr. Komiş and his wife’s passports

by the Government of Turkey had rendered their presence in Malaysia illegal. Therefore,

the repatriation of Mr. Komiş and his family members was carried out in accordance with

Malaysian laws and in line with international norms and standards.

35.

In respect of the four children of Mr. Komiş, the Government reaffirms its

commitment to comply with its obligations under the Convention on the Rights of the

Child, including to guarantee and uphold the rights of every child not to be subjected to

torture or other cruel, inhuman or degrading treatment, nor to unlawful or arbitrary

detention as is stipulated in article 37 of the Convention. The Government emphasizes that

the best interests of Mr. Komiş’s children were the paramount consideration of the

Government and are evidenced by the fact that they were not separated from their parents at

any time, including during their repatriation to Turkey.

36.

The Government emphasizes that the actions taken by the Malaysian authorities

against Mr. Komiş and his family members were conducted pursuant to domestic laws. The

Government reiterates that as a responsible State actor in the field of human rights, it has

maintained a good working relationship with the United Nations working groups and is

fully committed to continuing its efforts to ensure, promote and protect human rights in the

country.

Response from the Government of Turkey

37.

On 12 December 2019, the Working Group transmitted the allegations from the

source to the Government of Turkey under its regular communications procedure. The

Working Group requested the Government to provide, by 10 February 2020, detailed

information about the circumstances of the Komiş family’s detention and to clarify the legal

provisions justifying Mr. Komiş’s continued detention, as well as their compatibility with

the Government’s obligations under international human rights law, and 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 the Komiş family.

38.

The Government of Turkey submitted its reply on 10 February 2020, in which it

initially reaffirmed that Turkey, as a democratic State governed by the rule of law, and a

founding member of the Council of Europe, upheld human rights, the rule of law and

democracy. Turkey continued to fight against several terrorist organizations within the

framework of its Constitution and legislation and in compliance with its international

obligations and the fundamental principles of a democratic State. The Government then

recalled its national legal provisions on human rights.

39.

The Government proceeded to provide an overview of the terrorism threats faced by

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

organizations. The Government submitted background information, especially with regard

to the alleged armed terrorist organization. The Government also referred to the attempted

coup of 15 July 2016, noting that there were ongoing investigations into and trials pending

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

Government.

40.

The Government argues that Mr. Komiş is deprived of his liberty in accordance with

the decisions of competent courts. All proceedings that led to his custody and detention

were carried out in accordance with the relevant legislation, as well as with the international

obligations of Turkey. Thus, pursuant to the arrest warrant regarding Mr. Komiş issued by

the Ankara 8th Magistrates’ Office on 26 July 2019, Mr. Komiş was taken into custody at

Istanbul Atatürk Airport on 30 August 2019 following his deportation by Malaysia.

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41.

Upon the instruction of the Ankara Chief Public Prosecutor’s Office, Mr. Komiş was

transferred to Ankara on 31 August 2019. The same day, he went through a medical

examination in line with the legal requirements of the Code of Criminal Procedure. On 6

September 2019, he was brought before a judge and the Ankara 5th Magistrates’ Office

ruled for pretrial detention.

42.

The Government submits that the indictment was issued on 15 October 2019.

Currently, the case is before the Ankara 14th Assize Court. The first hearing took place on

22 November 2019, and the next hearing was to be held on 13 February 2020. During the

whole period of custody and detention, Mr. Komiş was regularly given medical

examinations and was granted access to a lawyer.

43.

The Government submits that the arrest warrant issued for him by the Ankara 8th

Magistrates’ Office is based on the existence of a strong suspicion that a crime listed under

article 100/3-a of the Criminal Code of Turkey has been committed. Mr. Komiş was

suspected of being a member of the Fetullahist Terrorist Organization (FETÖ), and the

Government once again submits a description of FETÖ activities and its role in the events

of 15 July 2016. The Government specifically points out that the Turkish Constitutional

Court also stated in its various judgments rendered on individual applications that FETÖ

was an armed terrorist organization.

44.

Turning to the allegations against Mr. Komiş, the Government argues that he was

taken into custody upon arrival in Istanbul Atatürk Airport on the basis of the arrest

warrant. He was transferred from Istanbul to Ankara on the instruction of Ankara Chief

Public Prosecutor’s Office. He was then in custody for four days, which was extended once

on 3 September 2019 by the Ankara 2nd Magistrates’ Office in accordance with article 19

of the Anti-Terror Law (Act No. 3713), which stipulates that the duration of custody shall

not exceed 48 hours, and in case of offences committed collectively shall not exceed four

days, from the moment of the arrest. The duration of custody, subject to the periods

prescribed in the first sentence of article 19, may be extended up to two times due to

difficulties in collecting the evidence or to the complexity of the case.

45.

During the period that Mr. Komiş remained in custody, he was granted access to a

lawyer assigned by the Ankara Bar Association, in accordance with article 150 of the

Criminal Procedure Code. He did not make any written statement to request his own

lawyer. The lawyer appointed by the Bar Association was present when Mr. Komiş gave

his testimony at the Police Department as well as before the Public Prosecutor and the

Ankara 5th Magistrates’ Office. At every stage of the investigation process, he was

informed of his legal rights, as well as of the charges against him, and was given the

opportunity to inform a member of his family. Also, he was regularly provided with

medical examinations. Medical reports indicate that Mr. Komiş was not subjected to any ill-

treatment or torture.

46.

The Government therefore concludes that the custody of Mr. Komiş is compliant

with the legal requirements of relevant laws, namely the Criminal Procedure Code and the

Anti-Terror Law.

47.

Turning to the legal basis for Mr. Komiş’s detention, the Government submits that

on 6 September 2019, the Ankara 5th Magistrates’ Office ruled for pretrial detention on the

basis of concrete and strong evidence which was also supported by his testimony indicating

that he was affiliated with FETÖ. Regarding the gravity of the charges against Mr. Komiş,

the Magistrates’ Office considered that there was a risk of flight, noting that Mr. Komiş was

not able to provide an address in relation to his residence in Turkey. Therefore, the Court

considered that judicial control measures would be inadequate in his case and remanded

Mr. Komiş in custody pending trial.

48.

The Government submits that the indictment of 15 October 2019, accepted by the

Ankara 14th Assize Court on 22 November 2019, also provides concrete elements

demonstrating that Mr. Komiş is suspected of being a member of FETÖ. Considering these

elements, the Court ruled for the continuation of detention.

49.

The Government explains that the testimonies given by Mr. Komiş indicate that he

started to attend dormitories of FETÖ when he was in high school. Ever since then, he had

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always resided in homes and dormitories affiliated to FETÖ. Afterwards, he had worked as

a teacher in FETÖ-affiliated schools in Kazakhstan. It has also been established that Mr.

Komiş held a deposit account at Bank Asya, a key institution that provided financial

resources for FETÖ. It has been proven by several court decisions that on 25 December

2013 the leader of the terrorist organization instructed the members of FETÖ to invest

money at Bank Asya in order to improve the financial situation of the bank and increase the

volume of transactions.

50.

The Government submits that the examination by the Financial Crimes Investigation

Board of Mr. Komiş’s account activity demonstrates that his investments rose significantly

and his financial activity intensified after 25 December 2013. Therefore, Mr. Komiş acted

upon the instruction of the leader of FETÖ in order to increase the volume of transactions

of Bank Asya and to contribute to the financial resources of the terrorist organization.

51.

Additionally, the indictment establishes that Mr. Komiş accessed the ByLock

application on his personal computer through his email account via an Android virtual

device. The installation and usage of the ByLock application is crucial evidence to prove

his membership of the organization, since it was developed for confidential intra-

organizational communication among the terrorist organization’s members, and access to

this system was not allowed to the public.

52.

According to the Government, ByLock is an application exclusively meant to

establish strongly encrypted communications between FETÖ members. The ByLock

application has a design that encrypts each message, and each message is sent with a

different encryption. It was made available to FETÖ members in the guise of an application

available for all. In fact, after being accessible on the Internet as an application available for

all for a short while, those wishing to download the application were obliged to access it via

a VPN, Bluetooth or external memory, in order to disguise the identities of the users.

Signing up to the application was not sufficient to contact users in the system; user names

and codes, provided mostly face-to-face or by an intermediary (a courier, an existing

ByLock user etc.), needed to be added by both sides in order to communicate with each

other. Messaging could be started after both users had added each other. Therefore, a

person who had no connection with FETÖ was not able to download the application on his

or her mobile phone and communicate with other users.

53.

The Government points to the reasoned judgment of 24 April 2017 by the 16th

Criminal Chamber of the Court of Cassation, which examined the nature of ByLock and

concluded that concrete evidence existed proving that the ByLock communication system

was a network programmed for the use of the members of FETÖ and was used exclusively

by the members of this terrorist organization.

54.

Additionally, the judgment of the Criminal Division of the Plenary Court of

Cassation (file No. 2017/956, judgment No. 2017/370, of 26 September 2017) specifies that

where use of this application has been detected, it shall be evidence of the user’s connection

with FETÖ, as the ByLock communication system is a network made available exclusively

for the use of FETÖ members and exclusively used by the members of this criminal

organization. Moreover, the judgment of the Criminal Division of the Plenary Court of

Cassation (file No. 2018/16-419, judgment No. 2018/661) explicitly sets forth the

connection between FETÖ and the use of ByLock.

55.

The Government therefore concludes that the detention of Mr. Komiş is based on

concrete elements indicating the presence of strong suspicion pointing to his implication in

a crime listed in article 100/3-a of the Criminal Code of Turkey.

56.

The Government emphasizes that the judicial process regarding Mr. Komiş is under

way. The case is currently before the Assize Court. When the judgment is issued, Mr.

Komiş will have the possibility of appealing the decision to the Regional Court of Appeal,

and then to the Court of Cassation. He will also have the right to lodge an individual

application before the Constitutional Court.

57.

Furthermore, Turkish law provides the right to seek remedies. Mr. Komiş has the

possibility of claiming compensation under article 141 and the subsequent articles of the

Criminal Procedure Code. According to Turkish law, there must be a request in order for a

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person to be awarded compensation. It should also be emphasized that the compensation

mechanism introduced in article 141 of the Criminal Procedure Code is recognized by the

European Court of Human Rights as an effective domestic remedy.

58.

The Government emphasizes that the requirement of exhaustion of domestic

remedies is generally a recognized rule in international law. The obligation to exhaust

domestic remedies is part of customary international law, as it is accepted in the case law of

the International Court of Justice; see Interhandel (Switzerland v. United States of

America), judgment of 21 March 1959. In the present case, domestic remedies have not

been exhausted.

59.

In the light of the explanations provided, the Government argues that the allegations

communicated to the Working Group by the source regarding the situation of Mr. Komiş

are unfounded and therefore should be dismissed.

Discussion

60.

The Working Group thanks the source and the Governments of Malaysia and Turkey

for their submissions and appreciates the cooperation and engagement of all parties in this

matter.

61.

In determining whether the deprivation of liberty of Mr. Komiş and his family is

arbitrary, the Working Group has regard to the principles established in its jurisprudence to

deal with evidentiary issues. If the source has established 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. 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).

62.

Noting that allegations have been made against the Government of Malaysia and the

Government of Turkey, the Working Group shall proceed to examine these separately.

Allegations against the Government of Malaysia

63.

The Working Group observes that it is not disputed that the Komiş family was

detained by the Malaysian authorities on 28 August 2019. The reasons for the detention are

not disputed either, as both the source and the Government of Malaysia argue that the

Government of Turkey requested the extradition of Mr. Komiş and revoked his and his

family’s passports which required the Malaysian authorities to remove them from Malaysia

in accordance with subsection 56 (2) of the Immigration Act 1959/63. The Government of

Malaysia denies any knowledge of Mr. Komiş having expressed fears over being returned

to Turkey.

64.

However, the Working Group observes that the Government of Malaysia has chosen

not to respond to the allegations made by the source that the arrest of the Komiş family,

including of the four minors, took place during the night and was executed by a large

number of masked officers. The Working Group is unable to find such timing and manner

of the arrest as proportionate and in line with the prescribed procedure as required by article

9 of the Universal Declaration of Human Rights.

65.

Additionally, the Government has not replied to the allegations that the Komiş

family were held incommunicado until their forcible removal to Turkey. Although it

appears that the family were able to send a message informing friends of their whereabouts,

they were not permitted to have contact with a lawyer, and the Malaysian authorities did

not acknowledge their detention, thus placing them outside the protection of the law, in

breach of article 6 of the Universal Declaration of Human Rights. As the Working Group

has consistently found, holding persons incommunicado violates their right to be brought

before a court and to challenge the lawfulness of their detention.1 Judicial oversight of

1 Opinions Nos. 11/2018, 79/2017, 46/2017 and 45/2017.

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10

detention is a fundamental safeguard of personal liberty2 and is essential in ensuring that

detention has a legal basis. Given that the Komiş family were unable to personally

challenge their detention or to do so through a lawyer of their choice, their right to an

effective remedy under article 8 of the Universal Declaration of Human Rights was also

violated.

66.

Moreover, as the Working Group has consistently maintained, any form of

detention, including detention in the course of migration proceedings, must be ordered and

approved by a judge or other judicial authority, and anyone so detained must be brought

promptly before a judicial authority.3 While the Working Group accepts that the Malaysian

authorities followed the prescription of domestic legislation when arresting the Komiş

family, the role of the Working Group is also to assess such laws to determine whether the

relevant international standards have been met,4 and in the present case, they have not.

67.

The Working Group therefore finds that the arrest and detention of the Komiş family

was arbitrary, falling under category I, as their detention was not authorized by a judicial

authority, they were held incommunicado, and they were prevented from challenging the

legality of their detention, in breach of article 9 of the Universal Declaration of Human

Rights. The Working Group is particularly concerned by the detention and expulsion of Ms.

Komiş and the four minors, one of whom was not even a Turkish citizen, and finds that a

breach of article 37 (b) of the Convention on the Rights of the Child also occurred.

68.

Furthermore, the Working Group notes that while the Government of Malaysia

admits having received a request from the Turkish authorities for the extradition of Mr.

Komiş, it chose, for that request, not to avail itself of the accepted judicial process affording

Mr. Komiş the requisite due process guarantees and enabling him to challenge it in a court

of law. Therefore, the detention of the Komiş family took place with disregard for the

established extradition procedures thus denying them the fair trial rights.

69.

Moreover, the Working Group recalls the unchallenged allegation that a statement

was made to the press by the Minister of Federal Territories that police had evidence to

show that Mr. Komiş “was involved” in terrorism, without elaborating on which actions by

Mr. Komiş were classified as acts of terrorism. Noting that Mr. Komiş was denied the

possibility of challenging allegations against him prior to his removal from Malaysia as the

Malaysian authorities had chosen to sidestep the accepted extradition procedures, the

Working Group is of the view that the Malaysian authorities had formed a prejudgment and

were not simply responding to an extradition request. The Working Group finds that Mr.

Komiş was denied the right to be presumed innocent, in breach of article 14 (2) of the

Covenant.

70.

Noting all of the above, the Working Group also finds the detention of the Komiş

family arbitrary and falling under category III.

71.

Finally, the Government of Malaysia violated its obligation under articles 5 and 9 of

the Universal Declaration of Human Rights and article 37 of the Convention on the Rights

of the Child by returning the Komiş family to another State where there are substantial

grounds for believing that they would be in danger of being subjected to torture or other ill-

treatment and arbitrary detention. The Working Group is unable to accept the argument

presented by the Government that it was not made aware of Mr. Komiş’s fears over being

returned to Turkey, since the whole Komiş family were holders of UNHCR-issued

documents. If the appropriate extradition procedures had been followed in the present case,

the Malaysian authorities would have engaged in a proper assessment of whether removal

of the Komiş family would breach the prohibition of non-refoulement. The Working Group

wishes to emphasize that the responsibility for ensuring that breach of the prohibition of

2 United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone

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

3 Working Group revised deliberation No. 5 (A/HRC/39/45, annex), para. 13. See also A/HRC/13/30,

para. 61; the Body of Principles for the Protection of All Persons under Any Form of Detention or

Imprisonment, principle 4; E/CN.4/1999/63/Add.4, para. 51; and E/CN.4/2003/8/Add.2, para. 64 (a);

as well as A/HRC/13/30/Add.2, para. 79 (e).

4 Opinions Nos. 33/2015, 15/2017, 16/2017 and 30/2017.

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11

non-refoulement does not occur rests with the State that is contemplating the removal of the

person in question. In the present case, the Malaysian authorities failed in their duty of non-

refoulement. In making this finding, the Working Group notes particularly that the

Government has not replied to the allegation that UNHCR was denied access to the Komiş

family while they were detained, and the Working Group recalls that organizations such as

UNHCR should have free access to all those in immigration detention.5

72.

Consequently, the Working Group considers that the Government of Malaysia is

responsible for its own actions in the arrest, detention and deportation of the Komiş family

as well as the subsequent violations of their rights in Turkey. The Working Group calls

upon the Government of Malaysia to take all the necessary steps to secure the immediate

and unconditional release of Mr. Komiş. In accordance with paragraph 33 (a) of its methods

of work, the Working Group refers the present case to the Special Rapporteur on the

promotion and protection of human rights and fundamental freedoms while countering

terrorism.

Allegations against the Government of Turkey

73.

As a preliminary issue, the Working Group notes that the situation of Mr. Komiş and

his family falls within the scope of the derogations that Turkey has made under the

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

the United Nations that it had declared a state of emergency for three months, in response to

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.6

74.

While acknowledging the notification of these 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 the most relevant to the alleged detention of Mr.

Komiş and his family. 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 actual situation.7

75.

As a further 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 due

to 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.8

76.

As a final preliminary issue, the Working Group notes that Ms. Komiş and the four

minors whose names are known to the Working Group have been released. However, the

Working Group notes that in accordance with paragraph 17 (a) of its methods of work, it

“reserves the right to render an opinion, on a case-by-case basis, whether or not the

deprivation of liberty was arbitrary, notwithstanding the release of the person concerned”.

In the present case, the Working Group considers that the allegations made by the source

are serious, and therefore will proceed to deliver the opinion.

77.

Turning to the specific allegations made against the Government of Turkey, the

Working Group observes that the source has argued that the detention of Mr. Komiş and his

5 Revised deliberation No. 5 (A/HRC/39/45, annex), para. 47.

6 Depositary notification C.N.580.2016.TREATIES-IV.4.

7 See the Committee’s general comment No. 29 (2001) on derogations from provisions of the Covenant

during a state of emergency, para. 4. See also the Committee’s general comment No. 32 (2007) on the

right to equality before courts and tribunals and to a fair trial, para. 6; its general comment No. 34

(2011) on the freedoms of opinion and expression, para. 5; and its general comment No. 35 (2014) on

liberty and security of person, paras. 65–66.

8 Opinions No. 19/2013 and No. 11/2000. See also opinions No. 41/2017, para. 73; No. 38/2017, para.

67; No. 11/2018, para. 66; No. 20/2019, para. 81; and No. 53/2019, para. 59.

A/HRC/WGAD/2020/51

12

family falls under categories I, II, III and V of the Working Group. The Government has

denied these allegations.

(i)

Category I

78.

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

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

must therefore examine the circumstances of the arrest of Mr. Komiş and his family, and

notes that they were arrested in Malaysia on 28 August 2019, and forcibly transferred to

Turkey, arriving there on 30 August 2019 when they were arrested by the Turkish

authorities. The Working Group notes that this is not disputed by the Government of

Turkey, which has explained that the arrest of Mr. Komiş took place following his

deportation from Malaysia.

79.

However, the Government has provided no explanation for the detention of Ms.

Komiş and the four children upon their forcible removal to Turkey. Although it appears that

their detention upon arrival in Turkey was short, this was nevertheless a detention9 and the

Working Group considers that it was arbitrary since the Turkish authorities failed to invoke

any legal basis to justify it, in breach of article 9 of the Covenant.

80.

Moreover, the Turkish authorities are also responsible for the arrest and detention of

Ms. Komiş and the four minors in Malaysia. The Working Group therefore concludes that

this detention had no legal basis and was thus arbitrary, falling under category I. The

Working Group is particularly concerned by the arrest and detention of the four minors,

who were subjected to the traumatizing experience of being forcibly removed from

Malaysia at the request of the Turkish authorities. The Working Group considers that this

treatment reveals a prima facie breach by Turkey of articles 3 (1), 22 and 40 of the

Convention on the Rights of the Child.

81.

Turning to the allegations concerning Mr. Komiş, the Working Group observes the

failure of the Government to acknowledge the forcible transfer of Mr. Komiş and his family

from Malaysia. Neither Mr. Komiş nor his wife and children arrived in Turkey on 30

August 2019 of their own free will. The Government of Turkey had the opportunity to

afford them the due process rights through a properly conducted extradition process from

Malaysia, but it chose not to do so by sidestepping the extradition procedures. It is therefore

responsible for their arbitrary detention in Malaysia.

82.

Moreover, the Working Group observes that Mr. Komiş was arrested by the Turkish

authorities upon arrival and was not presented before a judicial authority until 3 September

2019, that is, some four days after his arrest in Turkey. As the Working Group has

consistently argued,10 in order to establish that a detention is indeed legal, anyone detained

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

article 9 (4) of the Covenant.

83.

The Working Group recalls that according to the United Nations Basic Principles

and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of Their

Liberty to Bring Proceedings before a Court, the right to challenge the lawfulness of

detention before a court is a self-standing human right, which is essential to preserve

legality in a democratic society. 11 This right, which is in fact a peremptory norm of

international law, applies to all forms of deprivation of liberty.12 It is applicable to “all

situations of deprivation of liberty, including not only to detention for purposes of criminal

proceedings but also to situations of detention under administrative and other fields of law,

including military detention, security detention, detention under counter-terrorism

measures”.13

9 Opinion No. 67/2017 and deliberation No. 9 (A/HRC/22/44, sect. III).

10 Opinions Nos. 1/2017, 6/2017, 8/2017, 30/2017, 2/2018, 4/2018, 42/2018, 43/2018, 79/2018 and

49/2019.

11 A/HRC/30/37, paras. 2–3.

12 Ibid., para. 11.

13 A/HRC/30/37, annex, para. 47 (a).

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13

84.

The Working Group further considers that judicial oversight of detention is a

fundamental safeguard of personal liberty14 and is essential in ensuring that detention has a

legal basis. In the present case, Mr. Komiş was not presented before a judge until some four

days after his arrest, and the Government has simply cited compliance with its national law

as an explanation for this delay. The Working Group once again recalls that a derogation

under article 4 of the Covenant cannot justify a deprivation of liberty that is unreasonable or

unnecessary,15 and without prompt presentation of Mr. Komiş before the judicial authority

it cannot be said that his detention was lawful as it violated article 9 (4) of the Covenant.

85.

Furthermore, since during these four days of detention Mr. Komiş was not able to

challenge his detention, his right to an effective remedy under article 8 of the Universal

Declaration of Human Rights and article 2 (3) of the Covenant was also violated.

86.

Finally, as explained by the Human Rights Committee, “48 hours is ordinarily

sufficient to transport the individual and to prepare for the judicial hearing; any delay

longer than 48 hours must remain absolutely exceptional and be justified under the

circumstances”.16 The Working Group observes that the Government has not presented any

such justifications, and therefore a breach of article 9 (3) of the Covenant also occurred.

87.

Noting all of the above, the Working Group concludes that the detention of Mr.

Komiş was arbitrary and falls under category I.

(ii)

Category II

88.

The source has further argued that the detention of Mr. Komiş and his family falls

under category II, since they were not afforded the right to seek and to enjoy in Malaysia

asylum from persecution. However, the Working Group observes that the Government of

Turkey has submitted that the arrest and subsequent detention of Mr. Komiş was due to his

allegiance to the Gülen movement, manifested by him having attended and lived in the

FETÖ dormitories, having held an account at Bank Asya and having used the ByLock

application on his computer and phone.

89.

In the present case, as in many others before,17 the Working Group observes that the

essence of the allegations against Mr. Komiş, as presented by the Government, is his

alleged alliance with the Gülen group, which is allegedly evidenced by such regular daily

activities as having a bank account and using a communication application. In relation to

the latter, the Government has made detailed submissions on how the ByLock application

was used by the FETÖ terrorist organization in general. However, no explanation has been

provided as to how the alleged use of this application by Mr. Komiş could be equated with

a criminal act. Nor has the Government presented any evidence that Mr. Komiş was indeed

a member of FETÖ by dint of having held a bank account at Bank Asya or merely having

lived in a dormitory affiliated with the Gülen movement, many years ago.

90.

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

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

FETÖ, the Gülen group, as a terrorist organization in 2015, this organization’s readiness to

use violence had not become apparent to Turkish society at large until the coup attempt in

July 2016. As noted by the Commissioner for Human Rights of the Council of Europe:

“Despite deep suspicions about its motivations and modus operandi from various

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

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

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

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

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

14 United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone

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

15 See Human Rights Committee, general comment No. 35, para. 66. See also the Committee’s general

comment No. 29, para. 3.

16 See the Committee’s general comment No. 35, para. 33.

17 Opinions Nos. 42/2018, 44/2018, 29/2020 and 30/2020.

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14

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

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

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

way or another.”18

91.

In the light of this, the Commissioner for Human Rights of the Council of Europe

pointed out that there was a need “when criminalizing membership and support of this

organization, to distinguish between persons who engaged in illegal activities and those

who were sympathizers or supporters of, or members of legally established entities

affiliated with the movement, without being aware of its readiness to engage in violence”.19

92.

The Working Group observes that the allegations against Mr. Komiş as a member of

the Gülen group are based on him having engaged in regular activities, without any

specification of how such activities amounted to a criminal act. However, in view of the

widespread reach of the Fethullah Gülen movement, as documented in the report of the

Commissioner for Human Rights of the Council of Europe cited above, “it would be rare

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

way or another”. 20 This appears to be the case of Mr. Komiş. The Working Group

specifically notes 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 and

recorded numerous cases of arrests based purely on the presence of ByLock on the

accused’s computer and ambiguous evidence.21 The Working Group also notes the findings

of the Human Rights Committee in communication 2980/2017, in which it dismissed the

mere use of the ByLock application as sufficient basis for the arrest and detention of an

individual.22

93.

In the present case, it is clear to the Working Group that even if Mr. Komiş had used

the ByLock application, it would have been mere exercise of his freedom of expression, a

right protected under article 19 of the Covenant. The Working Group recalls that this is not

the first time that it has examined 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.23 The Working Group recalls that in those other instances, it concluded

that in the absence of a specific explanation as to how the alleged mere use of the ByLock

communication application constituted a criminal activity by the individual concerned, the

detention was arbitrary. The Working Group regrets that its views in these opinions have

not been respected by the Turkish authorities and that the present case follows the same

pattern.

94.

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

from his exercise of the rights guaranteed by article 19 of the Covenant, and falls within

category II. The Working Group refers the present case to the Special Rapporteur on the

promotion and protection of the right to freedom of opinion and expression, for further

consideration.

(iii)

Category III

95.

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

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

place. However, the trial is ongoing, and the source has submitted that there were violations

of his fair trial rights that render his detention arbitrary under category III of the Working

Group. The Government denies these allegations.

96.

The source has alleged that Mr. Komiş has been denied legal assistance since his

detention in Turkey, and has also stated that Mr. Komiş is being held in detention without

18 Memorandum on the human rights implications of the measures taken under the state of emergency in

Turkey, CommDH(2016)35 of 7 October 2016, para. 20.

19 Ibid., para. 21.

20 Ibid., para. 20.

21 A/HRC/35/22/Add.3, para. 54.

22 CCPR/C/125/D/2980/2017.

23 Opinions Nos. 42/2018, 44/2018, 29/2020 and 30/2020.

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15

any charge. However, the Working Group observes that the Government has submitted that

Mr. Komiş was assigned a lawyer from the Ankara Bar Association and that he was

informed of the charges against him. Moreover, the Government has provided a detailed

explanation of the ongoing court proceedings against Mr. Komiş. Noting this, the Working

Group is unable to make any findings on the matter.

97.

However, the Working Group observes that Mr. Komiş has been in pretrial detention

now for about a year, which, in principle, is not automatically a breach of article 14 (3) (c)

of the Covenant as there can be legitimate reasons justifying such a delay. In the present

case, however, the Working Group notes that Mr. Komiş was detained and placed in

pretrial detention purely for exercising his rights protected by the Covenant. The Working

Group therefore finds that his placing in pretrial detention constituted a breach of article 14

(3) of the Covenant.24

98.

Furthermore, the Working Group notes the unchallenged allegations concerning a

statement by the security forces via the Anadolu Agency about the detention and transfer of

Mr. Komiş being an operation by the Turkish intelligence organization, noting that

“intelligence forces arrested the so-called Malaysia chief of the Fetullah Terrorist

Organization (FETÖ) in an operation and brought him back to Turkey”. The Working

Group therefore finds that Mr. Komiş was denied the right to be presumed innocent, in

breach of article 14 (2) of the Covenant.

99.

Finally, the Working Group has already established the responsibility of the

Government of Turkey over the extradition of the Komiş family from Malaysia. Therefore,

noting the disregard for the accepted procedures for the extradition process, which would

have afforded Mr. Komiş his due process rights, as well as breaches of article 14 (2) and (3)

of the Covenant, the Working Group finds his detention arbitrary, falling under category III

also as regards Turkey.

(iv)

Category V

100.

Finally, the source has alleged that the detention of Mr. Komiş falls under category

V, since it constitutes discrimination based on political or other opinion. The Government

rejects this allegation, explaining that his detention was due to his alleged membership in a

terrorist organization.

101.

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

Gülen movement that has come before the Working Group in the past three years.25 In all

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

was arbitrary. It notes a pattern of targeting those with alleged links to the Gülen movement

on the discriminatory basis of their political or other opinion. Accordingly, the Working

Group finds that the Government of Turkey detained Mr. Komiş on the basis of a

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

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

present case to the Special Rapporteur on the promotion and protection of human rights and

fundamental freedoms while countering terrorism.

102.

In the past three years, the Working Group has noted a significant increase in the

number of cases brought to it concerning arbitrary detention in Turkey.26 The Working

Group expresses its concern over the pattern that all these cases follow and recalls that

under certain circumstances, widespread or systematic imprisonment or other severe

deprivation of liberty in violation of the rules of international law may constitute crimes

against humanity.27

24 See also Human Rights Committee, general comment No. 35, para. 37; and the same Committee’s

general comment No. 32, para. 35.

25 Opinions Nos. 1/2017, 38/2017, 41/2017, 11/2018, 42/2018, 43/2018, 78/2018, 10/2019, 53/2019,

79/2019, 2/2020, 29/2020, 30/2020 and 47/2020.

26 Ibid.

27 See, for example, opinion No. 47/2012, para. 22.

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16

103.

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 in October

2006, and that Turkey has issued a standing invitation to the special procedures, the

Working Group considers that it is an appropriate time to conduct another visit, in

accordance with the Working Group’s methods of work.

Disposition

104.

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

Regarding Malaysia

The deprivation of liberty in Malaysia of Arif Komiş, Ülkü Komiş and four minor

children whose names are known to the Working Group, being in contravention of

articles 3, 6, 8, 9 and 10 of the Universal Declaration of Human Rights, is arbitrary

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

Regarding Turkey

The deprivation of liberty of Arif Komiş, Ülkü Komiş and four minor children

whose names are known to the Working Group, being in contravention of articles 3,

6, 8, 9, 10 and 19 of the Universal Declaration of Human Rights and articles 2 (1)

and (3), 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.

105.

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

Turkey to take the steps necessary to remedy the situation of Mr. Komiş, Ms. Komiş and

four minor children whose names are known to the Working Group 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.

106.

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

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

Komiş immediately; and (b) for the Government of Turkey and the Government of

Malaysia to accord Mr. Komiş, Ms. Komiş and the four minor children whose names are

known to the Working Group an enforceable right to compensation and other reparations,

including for the impact on their psychological integrity from having been arrested, secretly

detained and deported. In the current context of the global coronavirus disease (COVID-19)

pandemic and the threat that it poses in places of detention, the Working Group calls upon

the Government of Turkey to take urgent action to ensure the immediate release of Mr.

Komiş.

107.

The Working Group urges the two Governments to ensure a full and independent

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

Komiş family and to take appropriate measures against those responsible for the violation

of their rights.

108.

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

refers the present case to the Special Rapporteur on the promotion and protection of human

rights and fundamental freedoms while countering terrorism and the Special Rapporteur on

the promotion and protection of the right to freedom of opinion and expression.

109.

The Working Group requests the two Governments to disseminate the present

opinion through all available means and as widely as possible.

Follow-up procedure

110.

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

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

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

(a)

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

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17

(b)

Whether compensation or other reparations have been made to the Komiş

family;

(c)

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

family’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 Malaysia and Turkey with their international

obligations in line with the present opinion;

(e)

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

111.

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

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

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

Working Group.

112.

The Working Group requests the source and the Governments 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.

113.

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.28

[Adopted on 26 August 2020]

28 Human Rights Council resolution 42/22, paras. 3 and 7.