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.21-13960(E)
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its ninety-first session, 6–10 September 2021
Opinion No. 38/2021 concerning Cihan Erdal (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,1 on 21 January 2021 the Working Group
transmitted to the Government of Turkey a communication concerning Cihan Erdal. The
Government replied to the communication on 12 April 2021. The State is a party to the
International Covenant on Civil and Political Rights.
3.
The Working Group regards deprivation of liberty as arbitrary in the following cases:
(a)
When it is clearly impossible to invoke any legal basis justifying the
deprivation of liberty (as when a person is kept in detention after the completion of his or her
sentence or despite an amnesty law applicable to him or her) (category I);
(b)
When the deprivation of liberty results from the exercise of the rights or
freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of
Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25,
26 and 27 of the Covenant (category II);
(c)
When the total or partial non-observance of the international norms relating to
the right to a fair trial, established in the Universal Declaration of Human Rights and in the
relevant international instruments accepted by the States concerned, is of such gravity as to
give the deprivation of liberty an arbitrary character (category III);
(d)
When asylum seekers, immigrants or refugees are subjected to prolonged
administrative custody without the possibility of administrative or judicial review or remedy
(category IV);
(e)
When the deprivation of liberty constitutes a violation of international law on
the grounds of discrimination based on birth, national, ethnic or social origin, language,
religion, economic condition, political or other opinion, gender, sexual orientation, disability,
or any other status, that aims towards or can result in ignoring the equality of human beings
(category V).
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2021/38
General Assembly
Distr.: General
15 October 2021
Original: English
A/HRC/WGAD/2021/38
2
Submissions
Communication from the source
4.
Cihan Erdal is a national of Turkey born in 1988. He is also a permanent resident of
Canada and normally resides in Ottawa, where he is a PhD candidate at Carleton University.
a.
Context
5.
The source notes that, in September 2014, Da’esh had commenced an assault on the
city of Kobane, in north-eastern Syrian Arab Republic, close to the border with Turkey. There
was widespread fear that Da’esh would slaughter thousands of innocent people. Turkish
citizens from across the country advocated for Turkey to intervene to protect civilian lives
and prevent atrocities. On 6 October 2014, Mr. Erdal, who was in Istanbul at the time, tweeted
the message “#KobaneDireniyor/KobaneResists”.
6.
On 6 and 7 October 2014, in Ankara, several messages were reportedly tweeted from
the Twitter account of the Central Executive Committee of the Peoples’ Democratic Party
(HDP). The messages were about the extremely critical situation in Kobane and urged people
to take to the streets and support those protesting the attacks by Da’esh and the Government’s
embargo on Kobane. The source adds that there were many protests in cities throughout
Turkey from 6 to 8 October 2014, during which 37 people tragically lost their lives.
b.
Arrest, detention and indictment
7.
The source reports that, at around 9 a.m. on 25 September 2020, Mr. Erdal was
arrested in Beşiktaş, a district of Istanbul, by officers of the anti-terrorism branch of the
Ankara police department on the basis of a warrant issued by the Office of the Ankara Chief
Public Prosecutor. The source adds that Mr. Erdal was staying at a friend’s place. He was
performing his doctoral research and waiting for the border with neighbouring countries in
the Schengen Area to open so he could continue his research in France and Greece. According
to the source, the police officers only had a warrant for his detention, not a search warrant,
so they waited for him at the door and only allowed him to take his identification documents
with him.
8.
The source reports that the arresting officers did not at the time provide any reasons
for Mr. Erdal’s arrest. They only said that they were detaining members of the HDP Central
Executive Committee in connection with events that had occurred in 2014. When Mr. Erdal
was subsequently interrogated and charged, it was learned that the detention related to a
meeting of the Central Executive Committee which Mr. Erdal did not attend and to social
media posts linked to the protests that had been held throughout Turkey from 6 to 8 October
2014 known as the Kobane protests.
9.
Following his arrest, Mr. Erdal was transferred from Istanbul to Ankara. The source
reports that, although Mr. Erdal’s lawyers had requested to speak to their client, the
prosecutor did not permit them to see him. The source adds that the lawyers and family
members were also not informed of Mr. Erdal’s place of detention until 36 hours after his
arrest, when they learned through the media and HDP officials that Mr. Erdal and other
detainees had been transferred to Ankara. Mr. Erdal was finally able to see his lawyers at the
detention centre in Ankara 48 hours after his arrest. The source submits that this was an
extremely arbitrary and unlawful act by the police. When Mr. Erdal’s lawyers were able to
meet with their client, the room was not conducive to confidentiality. It was not soundproof
and police officers could hear what Mr. Erdal and his lawyers were speaking about. The
source notes that Mr. Erdal was subsequently able to meet his lawyers during weekdays until
9 p.m. However, they spoke through a monitored telephone and the meetings took place
under video surveillance.
10.
According to the source, Mr. Erdal was initially held in police custody by the anti-
terrorism branch of the Ankara police department from 25 September to 1 October 2020. He
was taken to court for the first time on 1 October 2020 at around 5 p.m., six days after his
arrest. He was reportedly held in the hall of the court with no food or drink for 10 hours until
he appeared before the Criminal Court of Peace on 2 October 2020, at 3 a.m. The court
ordered that he be kept in pretrial detention in accordance with article 100 of the Code of
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Criminal Procedure. The court noted that Mr. Erdal remained in pretrial detention because of
the risk that his release might otherwise affect the evidence or that he might flee. The source
adds that the decision was announced directly to Mr. Erdal. The lawyers were reportedly
physically blocked by the police in the court from speaking to their client, who was taken,
with other detainees, to prison after the decision had been announced. The source notes that
Mr. Erdal was transferred to Sincan prison, a high-security penal institution in Ankara, where
he remained in pretrial detention at the time of the source’s submission.
11.
The source reports that, for the first couple of months, Mr. Erdal’s lawyers were
unable to see any formal indictment or other documents. However, Mr. Erdal was informed
that he had been charged with undermining the integrity or unity of the State (art. 302 of the
Criminal Code) and inciting murder (art. 82 of the Criminal Code).
12.
The source adds that the prosecutor accused Mr. Erdal of: attempting to destroy the
unity of the State and the unity of the country; murder in order to hide a crime or to hide
evidence of another crime or in order not to be caught; attempting to kill in order to hide a
crime or to hide evidence of another crime or in order not to be caught; taking advantage of
the frightening power of existing or presumed criminal organizations (Kurdistan Workers’
Party (PKK)); looting, with guns and with more than one person, at night by hijacking, in
order to create benefits for the criminal organization (PKK); and inciting a person to deprive
others of liberty by using force or threats or by cheating. It is alleged that Mr. Erdal
perpetrated those crimes by personally tweeting messages in support of protests against the
three attacks on Kobane and that he participated in a meeting of the HDP Central Executive
Committee, as a member of that Committee, which had made calls on social media in support
of protests against the Kobane attacks.
13.
According to the source, Mr. Erdal and his lawyers finally received a formal
indictment on 6 January 2021, four months after Mr. Erdal’s arrest. According to the
indictment, he was charged with various crimes, including with violating the unity and the
integrity of the State and with killing people. The indictment reportedly called for “38 counts
of life sentences without parole”. The source adds that the only evidence provided against
Mr. Erdal were, literally, two retweets of statements made by the HDP co-chair Selahattin
Demirtaş in October 2014.
c.
Conditions of detention
14.
The source reports that, during the first days of detention, Mr. Erdal could not get
personal hygiene products like a toothbrush or proper clothes to keep him warm. Nor was he
provided with proper meals. Moreover, he and some of the other detainees had diarrhoea due
to the poor-quality food.
15.
After he was sent to prison, Mr. Erdal was reportedly placed in solitary confinement.
He had to stay in a cell on his own without access to the outdoors, to books or other reading
materials, to television or to visitors. He was reportedly held in solitary confinement for 21
days in a cell that was not clean or hygienic and had no natural light. He was then sent to
another high-security prison. He was placed in a cell that he shares with two other detainees.
16.
The source notes that, at the time of submitting the communication to the Committee,
Mr. Erdal had access to reading materials and could speak by telephone with his parents for
20 minutes on Thursdays. However, he was not allowed to speak to his spouse. The source
adds that, in Canada, where they resided together, they were considered lawful spouses.
Turkish law, however, does not recognize relationships between lesbian, gay, bisexual,
transgender and intersex persons and the Turkish authorities therefore refused to recognize
Mr. Erdal’s spouse as a family member. The source adds that this is an additional act of
discrimination. Mr. Erdal was not allowed any visitors other than his lawyers.
d.
Analysis of the violations
17.
The source submits that Mr. Erdal has been subject to arbitrary detention by Turkey
for the legitimate exercise of rights and freedoms guaranteed by the Universal Declaration of
Human Rights and the International Covenant on Civil and Political Rights.
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18.
According to the source, Mr. Erdal has advocated for peace throughout his life. He
has never suggested, encouraged or incited violence in any way. He tweeted a message
supporting peaceful protests. The tweets by the HDP Central Executive Committee were also
peaceful. In any event, the source notes that Mr. Erdal was working in Istanbul at his
university when the Central Executive Committee was meeting in Ankara on 6 and 7 October
2014 and sending tweets. The source adds that social media posts calling on people to
exercise their right to peaceful assembly are protected forms of expression and cannot be
considered evidence to support criminal charges.
19.
The source refers to general comment No. 35 (2014), in which the Human Rights
Committee stated that arrest or detention as punishment for the legitimate exercise of the
rights as guaranteed by the Covenant is arbitrary. The source also notes that the Working
Group on Arbitrary Detention has stated that “unlawful detention” includes both detention
that violates domestic law and detention that is incompatible with the requirements of article
9 (1) or with any other relevant provision of the Covenant.2
20.
The source submits that Mr. Erdal is being punished for exercising his right to freedom
of expression and for supporting those exercising their right to freedom of peaceful assembly,
and that this constitutes a violation of articles 19 (on freedom of opinion and expression), 21
(on freedom of assembly) and 22 (on freedom of association) of the Covenant, as well as
articles 19 (on freedom of expression) and 20 (on freedom of assembly and association) of
the Universal Declaration of Human Rights. The source adds that it is unlawful to hold Mr.
Erdal responsible for the actions of others. The source refers to the European Court of Human
Rights judgment in the case Ezelin v. France, according to which the freedom to take part in
a peaceful assembly is of such importance that it cannot be restricted in any way so long as
the person concerned does not himself or herself commit a reprehensible act on such an
occasion.
21.
According to the source, there is no suggestion of such evidence in the case at hand;
therefore, Mr. Erdal’s detention is arbitrary. The source adds that the arrest and detention of
Mr. Erdal by Turkey for events that took place six years before have little to do with the
Kobane protests and much more to do with the State’s targeting of a political opposition
party, HDP. The source notes that the ruling party has arrested many HDP members who
have been democratically elected and lawfully hold political office in Turkey. The source
thus submits that Mr. Erdal’s arrest and detention were politically motivated and were
designed to stifle dissent and deter others from supporting or becoming politically involved
with HDP.
22.
The source argues that Mr. Erdal’s detention is also arbitrary because it violates
articles 25 (on the right to take part in the conduct of public affairs) and 26 (on the prohibition
of discrimination on the ground of political opinion) of the Covenant and article 21 (on the
right to take part in government) of the Universal Declaration of Human Rights. The source
notes that, in considering similar allegations concerning the arrest of HDP co-chair Selahattin
Demirtaş, the European Court of Human Rights found that Turkey had detained Mr. Demirtaş
with the predominant ulterior purpose of stifling pluralism and limiting freedom of political
debate, which is at the very core of the concept of a democratic society.3 The source also
notes that the Court called for the release of persons detained in Turkey, including Mr.
Demirtaş, for acts related to this matter, stating that the detention of such persons was a cover
for limiting pluralism and debate and that the evidence did not back up the terrorism-related
charges directed at them. The source specifically refers to paragraph 327 of the Court’s
judgment, which deals with the same tweets at issue in Mr. Erdal’s case.
23.
According to the source, Mr. Erdal’s pretrial detention was ordered by a court
pursuant to article 100 of the Code of Criminal Procedure. However, the source submits that
the prosecution relied on a secret file that it would not disclose to the defence, thereby
depriving Mr. Erdal of the right to properly challenge his detention. Mr. Erdal’s defence
lawyers reportedly argued that reliance on confidential information to justify detention
2 A/HRC/27/47, para. 14.
3 European Court of Human Rights, Selahattin Demirtaş v. Turkey, application No. 14305/17,
judgment, 22 December 2020, para. 273.
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violated the equality of arms principle and was contrary to articles 19 and 90 (4) of the
Constitution of Turkey. The presiding magistrate dismissed those arguments. The source thus
submits that the reliance on secret evidence to justify Mr. Erdal’s pretrial detention violates
articles 9 (on the right to liberty) and 14 (on the right to a fair trial) of the Covenant, as well
as article 3 of the Universal Declaration of Human Rights.
Response from the Government
24.
On 21 January 2021, 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 22 March 2021, detailed information about the
current situation of Mr. Erdal and to clarify the legal provisions justifying his continued
detention, as well as its compatibility with the obligations of Turkey 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 to ensure Mr. Erdal’s physical and mental
integrity.
25.
On 15 March 2021, the Government requested an extension in accordance with
paragraph 16 of the Working Group’s methods of work. The extension was granted on 16
March 2021; the new deadline was 21 April 2021. In its reply of 12 April 2021, the
Government explains that the Constitution of Turkey imposes a positive obligation upon the
State to ensure the welfare, peace and happiness of people and society, to protect the republic
and democracy and to remove the obstacles to the enjoyment of human rights and
fundamental freedoms. In order to fulfil its positive obligations, the State takes the measures
necessary to protect its people from terrorism.
26.
In this context, the national authorities are actively and resolutely combating, in
accordance with the rule of law and with due regard to the criteria of necessity and
proportionality, the terrorist organizations that threaten national security and the public order
by targeting the security forces and civilians.
27.
The Government adds that criminal investigations and prosecutions related to
terrorism charges are conducted by independent and impartial judicial authorities with
respect to international instruments and the jurisprudence of the European Court of Human
Rights. Taking into consideration the specific circumstances of each case, a distinction is
made between actions falling under the right to express one’s opinion freely, which include
speech that offends or disturbs the State or any segment of society, and actions that absolutely
and seriously constitute incitement to violence and hatred.
28.
While everyone has the right to express and disseminate his or her thoughts and
opinions orally, in writing, in pictures or through other media, the exercise of this right may
be restricted for the purpose of protecting national security and the public order pursuant to
article 26 of the Constitution, article 10 of the Convention for the Protection of Human Rights
and Fundamental Freedoms (European Convention on Human Rights) and article 19 of the
Covenant.
29.
In this vein, the Government submits that publishing a terrorist organization’s
declarations and statements that praise, legitimize or encourage the use or threat of force or
violence and disseminating the propaganda of a terrorist organization are listed as crimes in
Turkish legislation.
30.
The Government notes that from 6 to 8 October 2014 large-scale incidents of armed
violence were occurred in 35 Turkish provinces under the pretext of protesting the Da’esh
attack on Kobane. Those subversive riots in cities resulted in the death of 50 people and
injuries to an additional 772 individuals, including 331 members of the security forces. No
fewer than 1,881 vehicles and 2,558 buildings, including hospitals and schools, were
damaged. Those events reportedly broke out as a consequence of calls made by the terrorist
organization PKK, calls that were supported and reiterated by HDP. According to the
Government, a former HDP member, who is a suspect in the investigation on the
aforementioned events, has, in his testimony, stated: “I can say that the demonstrations
known as the Kobane incidents, in which deaths occurred, were not an exercise of democratic
rights. On the contrary, they were acts of violence. … I can say that the incidents and deaths
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that occurred during the Kobane events were organized by PKK in the name of a declaration
of autonomy in Turkish territory. The statements, instructions and calls show this.”
31.
The Government reports that PKK, which is directly linked with the aforementioned
events, is a terrorist organization whose members commit murders and injuries targeting
civilians, soldiers, police, women and children and are involved in robberies, acts of
extortion, theft, raids on villages and police stations and arson, as well as in many other illegal
activities, including money-laundering and trafficking in arms, drugs and persons. The
Government adds that since 2002, in many countries, including of the European Union, PKK
is listed as a terrorist organization.
32.
Turning to the circumstances of the case at hand, the Government explains that Mr.
Erdal is a former member of the HDP Central Executive Committee. Within the scope of an
investigation conducted by the Ankara Chief Public Prosecutor’s Office regarding the PKK
terrorist organization (No. 2014/146757), evidence indicated that Mr. Erdal and 107 other
suspects, acting in line with the instructions issued by the Central Executive Committee of
HDP, knowingly and wilfully colluded in committing the unlawful acts that occurred
between 6 and 8 October 2014.
33.
In accordance with the investigation conducted and the evidence collected, Mr. Erdal
was reportedly apprehended and taken into custody on 25 September 2020, upon the written
instruction of the public prosecutor, on suspicion of carrying out terrorism-related activities
on behalf of the PKK terrorist organization. When apprehended, Mr. Erdal was informed of
his rights and he acknowledged that he understood his rights and the reasons for detention.
34.
According to the Government, Mr. Erdal met with six lawyers during his detention.
His statement was taken on 30 September 2020 in the presence of his lawyers. After
testifying, he was brought before a judge on 2 October 2020. The Fourth Magistrates’ Office
in Ankara subsequently ruled in favour of Mr. Erdal’s arrest on terrorism-related charges.
35.
Mr. Erdal appealed against his arrest on 8 October 2020. The Fifth Magistrates’ Office
in Ankara rejected the appeal on 16 October 2020 pursuant to article 100 (3) of the Code of
Criminal Procedure as there existed a reasonable suspicion. The Government notes that Mr.
Erdal’s continued detention has been reviewed at regular intervals pursuant to article 108 of
the Code of Criminal Procedure and confirmed on the basis of the evidence against Mr. Erdal,
the nature of the crimes attributed to him and the existence of reasonable suspicion.
36.
On 30 December 2020, an indictment was prepared against Mr. Erdal and 107 other
defendants for crimes alleged to have been committed during the incidents that took place
from 6 to 8 October 2014. The evidence against Mr. Erdal includes witness, complainant and
suspect statements, video recordings and pictures, field reports, judicial reports, physical and
digital documents, expert reports and open source information.
37.
The Government notes that, in the indictment, it is stated that the HDP Central
Executive Committee, also referred to as the PKK/KCK terrorist organization, and its
affiliated organs had called for an organized revolt under the pretext of protesting the Da’esh
attack on Kobane. That call then spread to reach the masses through social media accounts
and websites affiliated with HDP and the PKK/KCK terrorist organization. Mr. Erdal, who
at the time was a member of the HDP Central Executive Committee, which had published
the call, and taking into consideration the messages posted on his social media accounts, is
accused of inciting the public – using his position in a political party in an organized way –
to create unrest and become involved in large-scale violent incidents, murders and terrorist
attacks.
38.
The Government adds that, in the light of the evidence that was collected during the
investigation, the fact that Mr. Erdal was a member of the HDP Central Executive Committee
and the fact that the Committee’s call led to public unrest, murder and terrorism, it was
concluded that causality was present between Mr. Erdal’s actions and the acts of violence
carried out by others. As such, criminal proceedings were initiated against Mr. Erdal within
the scope of the anti-terrorism law and the relevant articles of the Criminal Code. The
Government notes that Mr. Erdal’s criminal proceedings on terrorism-related charges are
ongoing.
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39.
The Government submits that, in order for it to uphold its positive obligation to
combat terrorism, the judicial authorities have initiated investigations into the events that
took place between 6 and 8 October 2014 and that led to a disturbance of the public order
and safety. In that regard, Mr. Erdal is being investigated for terrorism-related activities
carried out under instruction of the PKK/KCK terrorist organization.
40.
Regarding the exhaustion of domestic remedies, the Government submits that the
principle of subsidiarity means that the obligation to protect the rights and freedoms
enshrined in human rights documents falls primarily on the national authorities. As such,
allegations regarding violation of human rights should concern primarily the domestic legal
system.
41.
The Government refers to article 141 of the Code of Criminal Procedure, which
stipulates that individuals who claim to have been subjected to unlawful arrest can file for
compensation. The European Court of Human Rights has held that the complainant’s failure
to apply to the domestic courts for compensation under article 141 of the Code of Criminal
Procedure constitutes non-exhaustion of domestic remedies.4 In the present case, Mr. Erdal
did not apply for such remedy challenging the legality of his detention.
42.
According to article 148 of the Constitution and Law No. 6216, the Constitutional
Court can examine individual applications concerning the human rights and fundamental
freedoms enshrined in the Constitution that fall within the scope of the European Convention
on Human Rights and its Protocols, after the exhaustion of all administrative and judicial
remedies. The European Court of Human Rights, in its established jurisprudence, is of the
view that making an individual application to the Constitutional Court constitutes an effective
remedy that should be exhausted. Nevertheless, Mr. Erdal did not lodge an individual
application before the Constitutional Court.
43.
Considering the available domestic remedies that are yet to be exhausted and the fact
that Mr. Erdal’s criminal proceedings on terrorism charges are in the early stages before the
competent courts, the Government is of the view that it would be inappropriate for the
Working Group to reach conclusions on the case at hand.
44.
Regarding the grounds for Mr. Erdal’s detention, the Government argues that the
rights to freedom of expression and freedom of association and peaceful assembly are not
without limits. They are subject to limitations, including to protect the public order and ensure
safety, as stipulated in the Constitution, the European Convention on Human Rights and the
Covenant. The Government adds that, in order to protect the public order, ensure safety and
combat terrorism, it is necessary to investigate all forms of expression that absolutely and
seriously incite violence and hatred.
45.
According to article 5 (1) (c) of the European Convention on Human Rights and the
case law of the European Court of Human Rights, the existence of reasonable suspicion of
having committed an offence is initially sufficient to deprive a person of liberty. Continued
detention, on the other hand, can be justified only if there are specific indications of a genuine
need to safeguard the public interest which, notwithstanding the presumption of innocence,
outweighs the rule on respecting individual liberty.
46.
The Government notes that, considering the particular circumstances of the
abovementioned terrorism-related incidents, which resulted in serious material and
immaterial damages and in public unrest, and having regard for the complexity of the case,
the large number of suspects involved, the PKK/KCK terrorist organization’s motives and
activities, Mr. Erdal’s role in those incidents and the evidence against Mr. Erdal, the judicial
authorities concluded that there existed a risk of absconding, reasonable suspicion and a
genuine need to safeguard the public interest justifying the pretrial detention of Mr. Erdal.
As such, the measures applied against Mr. Erdal in accordance with the Code of Criminal
Procedure are legitimate to protect the public order.
4 A.Ş. v. Turkey, application No. 58271/10, judgment, 13 September 2016 (in French only).
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47.
Considering the explanations above, the Government is of the view that the judicial
proceedings concerning Mr. Erdal have been conducted in line with articles 9, 19 and 21–22
of the Covenant and cannot be considered arbitrary.
48.
Regarding Mr. Erdal’s rights while in detention and the conditions of the penal
institution in which he is being held, the Government argues that Mr. Erdal has access to
legal assistance. Due process guarantees were respected when Mr. Erdal was taken into
custody. Mr. Erdal was informed of his legal rights and of the reasons for his detention. His
statement was taken in the presence of his lawyers. His father and roommate were
immediately informed of his apprehension. He was able to appeal to the court and demand
his release. In accordance with article 108 of the Code of Criminal Procedure, his detention
has been evaluated periodically (every 30 days at the most) in the investigation phase by the
court upon appeal or ex officio.
49.
According to article 154 (2) of the Code of Criminal Procedure, for certain offences,
including terrorism-related charges, a detainee’s right to meet with his or her lawyer may be
subject to restrictions for 24 hours upon the request of the Public Prosecutor. Pursuant to that
provision, and in order to preserve the evidence and to safeguard due process guarantees, the
decision to restrict Mr. Erdal’s access to his lawyers for 24 hours was assessed to be a
proportionate measure by the judicial authorities.
50.
The Government adds that, during those 24 hours, Mr. Erdal’s statement was not taken
and no evidence was added to his file. Mr. Erdal first met with his lawyer on 26 October, one
day after his detention. He then met with his other lawyers on 27, 29 and 30 October, while
in custody.
51.
According to the Government, Mr. Erdal’s apprehension, detention and arrest, as well
as all related legal procedures, were conducted in accordance with the law. Moreover, Mr.
Erdal is able to be represented by his lawyers, put forth issues in his favour and defend
himself. He was brought before a judge promptly, considering the large number of suspects
involved and the complexity of the case. The Government is thus of the view that Mr. Erdal
was able to exercise his rights set forth in domestic law and in articles 9 and 14 of the
Covenant during his detention.
52.
Contrary to the allegations made in the communication, Mr. Erdal was not put in
solitary confinement. He was subjected to the same treatment as other detainees in the penal
institution in which he was held. The Government adds that Sincan prison, which is a high-
security facility, consists of 350 single-person and 45 three-person cells. The single-person
cell where Mr. Erdal was being held has 15.8 square metres of living space, which is above
the standards specified in the European Prison Rules of the Council of Europe. Mr. Erdal is
granted one hour of outdoor activity and exercise, which is in line with the abovementioned
Rules. He is also able to listen to the radio. Moreover, although the psychosocial health unit
of the institution requested to have a meeting with him, Mr. Erdal refused such aid.
53.
According to the Government, decisions on the placement of detainees (pretrial and
convicted) in penal institutions are taken by the administration and observation board of the
institution concerned in accordance with certain criteria, such as criminal groups and types,
risk situation, age and the institution’s level of security. These decisions can be appealed to
the courts by the individual concerned. Mr. Erdal did not apply for such a remedy either.
54.
Contrary to the allegations made in the communication, Mr. Erdal was immediately
(at 6.12 p.m. of the day of his detention) provided with sanitary and stationery supplies upon
his request. He also bought personal care and sanitary products from the institution canteen.
55.
Pursuant to article 72 of the Law on the Execution of Penalties and Security Measures
(Law No. 5275), pretrial detainees and convicts are provided with nutritious food sufficient
in quality and quantity for them to stay healthy and strong and with drinking water, taking
into account their age, health, work and religious and cultural preferences. Dietary choices
such as veganism and vegetarianism are therefore respected. Kitchens in penal institutions
are inspected regularly in terms of quality and hygiene. In line with the law, convicts and
pretrial detainees are provided with the same food and water given to the penal institution’s
personnel.
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56.
As for the allegations that Mr. Erdal was not allowed to talk to his spouse, Mr. Erdal
reportedly did not make any request to do so. He did, however, make several telephone calls
to his mother and brother.
57.
In line with the recommendations of the scientific advisory board of the Ministry of
Health, convicts and pretrial detainees can benefit from closed visits with a maximum of two
people twice a month; this is a time-bound measure related to the public health situation
resulting from the coronavirus disease (COVID-19) pandemic. Therefore, during his stay in
Sincan prison, Mr. Erdal met with his lawyers on 3, 4, 8, 13, 15, 17 and 22 October 2020;
with his brother on 7 October 2020; with his parents on 21 October 2020; and with a Turkish
member of Parliament on 23 October 2020.
58.
Considering that Mr. Erdal benefited from closed visits, legal aid and communication
rights, and taking into account the conditions of the penal institution in terms of hygiene,
food and accommodation, which are in line with the relevant standards, the Government is
of the view that Mr. Erdal’s rights while in detention have been respected.
59.
Regarding other alleged violations of the Covenant, the Government submits that both
the Constitution and the Covenant enshrine the principle of equality of all persons before the
law. While the State is obligated to protect and promote the human rights and fundamental
freedoms of everyone at both the national and international levels, in accordance with the
requirements of democratic society, this obligation does not give absolute immunity from
being subjected to the law. In this respect, Mr. Erdal, as anybody else suspected of the same
crime would be, was investigated and is being prosecuted and tried by independent and
impartial judicial authorities. Mr. Erdal was charged with terrorism-related offences and all
the evidence collected against him was evaluated under this lens. The judicial proceedings
have not been conducted for any other reason.
60.
In conclusion, the Government wishes to remind the Working Group that 108 suspects
are included in the present investigation and that the particular circumstances of each
defendant differ. Thus, each suspect has been investigated in respect of his or her particular
involvement in the terrorist incidents. Therefore, particular acts, speech, political status or
court evaluation concerning a certain individual should not affect the assessment of other
defendants’ involvement in the terrorist attacks.
61.
According to the Government, terrorism poses the most severe threat to democracies.
Spreading messages and glorifying the violent acts of a terrorist organization do not fall
within the scope of freedom of expression in a democratic society. Mr. Erdal, as a member
of the HDP Central Executive Committee who was responsible for the call to revolt and who
reiterated the PKK/KCK terrorist organization’s agenda at the time of the terrorism-related
events, was rightfully and lawfully subjected to an investigation that included the collection
of evidence against him. By investigating him, the State was fulfilling its positive obligation
to protect its citizens from terrorism.
62.
The Government is of the view that Mr. Erdal’s rights under national and international
law while in detention are being respected. Considering the particular circumstances of the
case, the legal rights that Mr. Erdal is able to exercise and the conditions of the penal
institution, which are in line with the relevant standards, the allegations of violations of the
human rights set out in the relevant articles of the Covenant should be dismissed. As the
prosecution phase is still under way and will be reviewed by higher domestic courts, it would
be inappropriate to reach conclusions on the situation at hand.
Further comments from the source
63.
The response of the Government was sent to the source for further comments on 14
April 2021. In its response of 23 April 2021, the source notes that the Government argues
that the principle of subsidiarity should preclude any inquiry by the Working Group into this
matter. However, the source recalls that the obligation of applicants to exhaust domestic
remedies does not apply with respect to the Working Group.5 Therefore, the objection made
by the Government has no merit and the communication is admissible.
5 The source refers to the Working Group’s opinions No. 41/2017, No. 19/2013 and No. 11/2000.
A/HRC/WGAD/2021/38
10
64.
The source notes that the Government contends that Mr. Erdal’s access to legal
counsel was not impeded and that his conditions of confinement have been appropriate at all
times. According to the source, this is inconsistent with the facts. When the Government says
that Mr. Erdal was able to meet his lawyer a day after his detention, this answer is technically
accurate, but obscures the reality of what occurred. Mr. Erdal was arrested in Istanbul at 9.15
a.m. on 25 September 2020. He was reportedly unable to speak to a lawyer until 7 or 8 p.m.
on 26 September 2020, over 440 km away at his place of detention in Ankara. For over 34
hours, he allegedly had no access to counsel and, more significantly, he was held
incommunicado at an unknown location.
65.
In relation to the Government’s contention that Mr. Erdal has not been held in solitary
confinement, that he is permitted to spend time outside his cell and that he was provided with
sanitary and stationary supplies upon his request, the source notes that this does not describe
his treatment during the first 21 days of his detention. Initially, from 26 September to 2
October 2020, Mr. Erdal was held in a basement cell at a facility of the anti-terrorism bureau.
During that period, he was not permitted to shower, was not given a towel of any kind, could
not change his clothes and was fed very poor-quality food that made him sick.6
66.
In relation to the information provided by the Government that Mr. Erdal was able to
see legal counsel on 27, 29 and 30 September 2020, while in custody, the source reports that
those visits were primarily focused on addressing these poor conditions of confinement. After
the magistrate’s order of 2 October 2020 remanding Mr. Erdal to further custody, he was
transferred to Sincan prison in Ankara. He was finally given access to bathing facilities, but
was kept isolated from other prisoners until 23 October 2020. Moreover, his cell – which was
windowless, had no natural light and faced a corridor only – is where he spent his days, alone.
The source adds that Mr. Erdal acknowledges that his conditions of confinement have
improved since October 2020.
67.
The source notes the assertion by the Government that Mr. Erdal has been charged
with publishing a terrorist organization’s declarations/statements that praise, legitimize or
encourage methods involving the use or the threat of force or violence by the terrorist
organization. The Government also asserted that, through the HDP Central Executive
Committee, Mr. Erdal knowingly and wilfully contributed to committing the unlawful acts
that occurred between 6 and 8 October 2014 and that the evidence against Mr. Erdal includes
witness and suspect statements, video recordings, field reports, physical and digital
documents, expert reports and open source information. However, according to the source,
the indictment prepared against Mr. Erdal does not refer to any such evidence. According to
the source, Mr. Erdal has always been a proponent of peace and environmentalism. These
issues were why he became involved in politics as a young man. He abhors violence and has
always spoken out against it.
68.
With respect to the tweets posted by the HDP Central Executive Committee on or
about 6 October 2014, Mr. Erdal does not believe they call for violence in any way. The
tweets call for protests, in accordance with the rights of freedom of assembly. In any event,
according to the source, Mr. Erdal was in no way involved in the decisions taken by the HDP
Central Executive Committee at that time. As the indictment discloses, the HDP Central
Executive Committee held an emergency meeting in Ankara on 6 October 2014, and decided
to issue the tweets. Mr. Erdal did not participate in that meeting and in fact was in Istanbul
at the time. As confirmed by the Turkish authorities, he was working with a professor at
Mimar Sinan Fine Arts University in Istanbul, not in Ankara.
69.
The source maintains that Mr. Erdal’s detention is arbitrary as it is based on the
exercise of his fundamental rights of freedom of expression and association.7 The sad fact is
that he is being charged because he was once associated with HDP, a legitimate and lawful
political party that the current government in Turkey would allegedly like to suppress. The
6 The source notes that the conditions were allegedly so poor that other detainees in that location went
on a hunger strike.
7 The source notes that the Government maintains that its prosecutions are conducted in accordance
with the jurisprudence of the European Court of Human Rights. Yet, the source highlights that the
Court has already addressed the tweets in this matter and found that the criminal charges violated
human rights (see Selahattin Demirtaş v. Turkey).
A/HRC/WGAD/2021/38
11
criminal charges are manifestly baseless and are politically motivated to stifle pluralism and
limit free political debate within the country.
70.
On 15 June 2021, the Working Group was informed that Mr. Erdal was conditionally
released by the presiding judge pending the conclusion of the criminal trial. The release is
conditional and Mr. Erdal must remain in Turkey and report to the local police station twice
per week.
Discussion
71.
The Working Group thanks the source and the Government for their prompt
submissions.
72.
In determining whether the deprivation of liberty of Mr. Erdal was 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 the
international law constituting arbitrary detention, the burden of proof should be understood
to rest upon the Government if it wishes to refute the allegations.8 Mere assertions by the
Government that lawful procedures have been followed are not sufficient to rebut the
source’s allegations.
73.
As a preliminary issue, the Working Group wishes to address the submission that Mr.
Erdal has been provisionally released. In this regard, 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
is of the view that the allegations made by the source are extremely serious. Moreover, Mr.
Erdal’s release is only conditional and Mr. Erdal is still subject to restrictions, including the
obligation to report to a police station and the prohibition to travel. Noting this, the Working
Group shall proceed to deliver the opinion.
74.
As an additional preliminary issue, the Working Group wishes to address the
submission of the Government that Mr. Erdal has not exhausted all available domestic
remedies. According to the Government, the Working Group should therefore not be seized
of the matter. 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 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 for a communication to
be considered admissible.9
75.
Turning to the specific allegations made against the Government, the Working Group
observes that the source alleges that Mr. Erdal was arrested by officers of the Anti-Terror
Branch of the Ankara Police Department on 25 September 2020 and that the officers
presented a warrant at the time of the arrest although they did not explain the reasons for the
arrest. The Government confirms that Mr. Erdal was arrested on the basis of a warrant, on
that date, but adds that the reasons for the arrest were also explained at the time.
76.
Furthermore, according to the source Mr. Erdal was transferred from Istanbul to
Ankara without his family being informed; in fact, for some 36 hours his family was entirely
unaware of his whereabouts. Mr. Erdal was held in a police station from 25 September to 2
October 2020, when he was first brought before a judge.
77.
The Government does not address the allegations concerning the transfer of Mr. Erdal
from Istanbul to Ankara and his whereabouts being unknown for some 36 hours. It confirms,
however, that Mr. Erdal was first brought before a judge on 2 October 2020.
8 A/HRC/19/57, para. 68.
9 See, e.g., 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; No. 53/2019, para. 59; and No.
51/2020, para. 75.
A/HRC/WGAD/2021/38
12
78.
The Working Group recalls that article 9 (3) of the Covenant requires anyone arrested
or charged with a criminal offence to be brought promptly before a judicial authority. As the
Human Rights Committee has explained in its general comment No. 35 (2014), while the
exact meaning of “promptly” may vary depending on objective circumstances, delays should
not exceed a few days from the time of arrest. In the view of the 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.
79.
In the present case, the Working Group observes that Mr. Erdal was arrested on 25
September but did not appear before a judge until 2 October. Thus, seven days passed from
the moment of his arrest until he was first brought before a judicial authority and the
Government has presented no reasons to justify such delay despite having had the opportunity
to do so. The Working Group therefore finds a violation of article 9 (3) of the Covenant.
80.
Moreover, 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. 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.10 This right, which is in fact a peremptory norm of international law,
applies to all forms of deprivation of liberty,11 and applies 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, involuntary
confinement in medical or psychiatric facilities, migration detention, detention for
extradition, arbitrary arrests, house arrest, solitary confinement, detention for vagrancy or
drug addiction, and detention of children for educational purposes.12 Moreover, it also applies
irrespective of the place of detention or the legal terminology used in the legislation. Any
form of deprivation of liberty on any ground must be subject to effective oversight and
control by the judiciary.13
81.
The right to take proceedings before a court in order for that court to decide upon the
lawfulness of detention must also be afforded without delay, as specified in article 9 (4) of
the Covenant. As the Human Rights Committee has specified in its general comment No. 35
(2014), the adjudication of the case should take place as expeditiously as possible. In the
present case, Mr. Erdal was not provided with the opportunity to exercise his right to
challenge the legality of his detention until after some six or seven days following his arrest
and the Government has presented no explanation for this delay. The Working Group
therefore finds a breach of article 9 (4) of the Covenant.
82.
Furthermore, the source has alleged that Mr. Erdal was prevented from seeing his
lawyer until some 48 hours after his arrest. The Government contests this and argues that Mr.
Erdal was able to see his lawyer the day after his arrest and that his access to a lawyer was
delayed on the basis of an exception provided for in national law in exceptional circumstances
to preserve the evidence. In its additional comments, the source argues that the delay was
actually 34 hours and underlines that, as it argued before, during those 34 hours Mr. Erdal
was in fact held incommunicado at an unknown location. The Working Group notes that the
Government has not addressed the allegations that the whereabouts of Mr. Erdal were
unknown for over 30 hours after he was first detained.
83.
Noting that the whereabouts of Mr. Erdal were entirely unknown following his arrest
and that the authorities failed to acknowledge his whereabouts, leading Mr. Erdal’s family to
search for him for over 30 hours, the Working Group considers that Mr. Erdal was in fact
subjected to enforced disappearance during that period. Recalling that enforced
disappearances are prohibited under international law and constitute a particularly aggravated
10 A/HRC/30/37, paras. 2–3.
11 Ibid., para. 11.
12 Ibid., annex, para. 47 (a).
13 Ibid., annex, para. 47 (b).
A/HRC/WGAD/2021/38
13
form of arbitrary detention, 14 the Working Group finds a breach of article 9 (1) of the
Covenant.
84.
Moreover, given that Mr. Erdal was unable to contact anyone during that time,
especially his lawyer, and given that access to counsel is an essential safeguard to ensure the
ability of all detainees to personally challenge their detention, the Working Group finds that
Mr. Erdal’s right to an effective remedy enshrined in article 8 of the Universal Declaration
of Human Rights and article 2 (3) of the Covenant was also violated. Moreover, Mr. Erdal
was also placed outside the protection of the law, in violation of his right to be recognized as
a person before the law under article 6 of the Universal Declaration of Human Rights and
article 16 of the Covenant.
85.
Noting all the above, the Working Group concludes that the arrest and subsequent
detention of Mr. Erdal were arbitrary and fall under category I as lacking any legal basis.
86.
The source has argued that Mr. Erdal was arrested and prosecuted for the peaceful
exercise of his rights to freedom of expression and assembly. The Government denies these
submissions and argues that Mr. Erdal was arrested and prosecuted because of reasonable
suspicion that he had committed a crime. The Government explains that, in the light of the
concrete evidence that was collected during the investigation and the fact that Mr. Erdal was
a member of the HDP Central Executive Committee and that the Committee’s calls led to
public unrest, murder and terrorism, it was concluded that causality was present between his
actions and the acts of violence that had taken place in 2014. In its additional comments, the
source, while not denying that Mr. Erdal had indeed been part of the HDP Central Executive
Committee, argues that Mr. Erdal did not take part in the emergency meeting of the HDP
Central Executive Committee on 6 October 2014 at which it was allegedly decided to issue
the calls at the heart of the allegations against Mr. Erdal. The source also argues that the
statements issued did not call for violence in any way.
87.
The Working Group notes that it is not disputed that Mr. Erdal was part of the HDP
Central Executive Committee at the time when this body issued statements that, according to
the Turkish authorities, incited violence and indeed caused considerable loss of life. The
Working Group is mindful that the statements, however, had allegedly been made in 2014
and that Mr. Erdal was not arrested until 2020 and the Government has presented no
explanation for the delay in detaining Mr. Erdal and bringing charges against him.
Nevertheless, Mr. Erdal’s association with HDP is not contested. In these circumstances, the
Working Group is unable to conclude that the Government arrested Mr. Erdal solely for the
peaceful exercise of his rights.
88.
The Working Group recalls that it has consistently refrained from taking the place of
the national judicial authorities or acting as a kind of supranational tribunal when it is urged
to review the application of domestic law by the judiciary.15 It is outside of the mandate of
the Working Group to reassess the sufficiency of the evidence or to deal with errors of law
allegedly committed by the domestic court.16 In the present case, it is not the role of the
Working Group to investigate whether Mr. Erdal took part in the decision to issue the
statements or indeed to analyse these statement to ascertain whether they incited violence.
This is the sovereign domain of the national authorities and the Working Group is satisfied
that the circumstances, as presented by both parties, clearly reveal that a reasonable suspicion
could have been formed by the Turkish authorities regarding the involvement of Mr. Erdal.
89.
Notwithstanding this, the proceedings against Mr. Erdal must still comply with the
requirements of international human rights law concerning due process rights and especially
articles 9 and 14 of the Covenant. In this regard, the Working Group notes the submissions
of the source that Mr. Erdal was prevented from meeting his lawyers for over 30 hours after
his arrest; that these meetings, once possible, did not preserve the confidentiality of their
communication; that the lawyers were physically blocked by the police from speaking to their
14 See opinions No. 5/2020, No. 6/2020, No. 11/2020 and No. 13/2020. See also Human Rights
Committee, general comment No. 35 (2014), para. 17.
15 Opinion No. 40/2005, para. 22.
16 See, for example, opinions No. 5/2021, No. 60/2019, No. 58/2019, No. 49/2019, No. 16/2017 and No.
15/2017.
A/HRC/WGAD/2021/38
14
client during the pretrial detention hearing; and that during the pretrial detention hearings
secret evidence was presented to which the defence counsel had no access. The Working
Group notes that the Government has not contested these allegations other than stating that
Mr. Erdal’s right to meet with his lawyer was restricted for 24 hours pursuant to article 154
(2) of the Code of Criminal Procedure in order to preserve the evidence and to safeguard due
process guarantees.
90.
In these circumstances, the Working Group finds that Mr. Erdal was denied access to
legal assistance following his arrest, in violation of his right to have adequate time and
facilities for the preparation of his defence and to communicate with counsel pursuant to
article 14 (3) (b) of the Covenant. The Working Group recalls that all persons deprived of
their liberty have the right to legal assistance by counsel of their choice at any time during
their detention, including immediately after their apprehension, and that such access shall be
provided without delay.17
91.
The Working Group further notes that the right to communicate with counsel
enshrined in article 14 (3) (b) of the Covenant requires ensuring that counsel are able to meet
their clients in private and to communicate with the accused in conditions that fully respect
the confidentiality of their communications.18 As this right was not observed in the present
case, the Working Group finds a violation of article 14 (3) (b) of the Covenant.
92.
The source has also argued that Mr. Erdal’s pretrial hearings were based on secret
evidence to which neither he nor his counsel were given access. While the Government had
the opportunity to respond to this allegation, it has chosen not to do so. The Working Group
recalls that, in principle, access to the case file must be provided from the outset.19 In the
absence of a rebuttal from the Government, the Working Group finds that Mr. Erdal’s rights
under article 14 (1) and (3) (b) and (e) were also violated.
93.
Noting all the above, the Working Group concludes that the violations of Mr. Erdal’s
right to a fair trial are of such gravity as to give his detention an arbitrary character, falling
under category III.
Final remarks
94.
The Working Group notes the allegations that Mr. Erdal was unable to notify his
family of his whereabouts following his arrest and that these allegations have not been
contested by the Government. Although the Government states that Mr. Erdal has been able
to contact his family on numerous occasions, the Working Group notes that all those
occasions occurred after Mr. Erdal had been presented before the judicial authorities and,
specifically, that the Government has not addressed the time period immediately after his
arrest. In this regard, the Working Group recalls that the authorities’ failure to inform Mr.
Erdal’s family about his whereabouts is a violation of principle 19 of the Body of Principles
for the Protection of All Persons under Any Form of Detention or Imprisonment.
95.
Moreover, while the Government refutes that Mr. Erdal has been denied contact with
his spouse, the Working Group notes the allegations by the source to that effect and recalls
that such denial would be inconsistent with principle 19 of the Body of Principles. The
Working Group also notes that the source has argued that such denial is anchored in the
failure on behalf of the Turkish authorities to recognize same-sex relationships. While the
issue at hand falls outside the mandate of the Working Group, it has decided to refer the
matter to the Independent Expert on protection against violence and discrimination based on
sexual orientation and gender identity for appropriate action.
96.
The source has also alleged that Mr. Erdal was held in solitary confinement. This
allegation is denied by the Government, which claims that Mr. Erdal was held in a single-
occupancy cell rather than in solitary confinement once he was moved to the penitentiary
17 A/HRC/45/16, paras. 51–53. See also A/HRC/30/37, annex, paras. 12–15 and 67–71.
18 Human Rights Committee, general comment No. 32 (2007), para. 34. See also Khomidova v.
Tajikistan (CCPR/C/81/D/1117/2002), para. 6.4; Sirageva v. Uzbekistan (CCPR/C/85/D/907/2000),
para. 6.3; and Gridin v. Russian Federation (CCPR/C/69/D/770/1997 and Corr.1), para. 8.5. See also,
for example, opinions No. 67/2020, No. 83/2018 and No. 42/2018.
19 See opinions No. 77/2020, No. 67/2020, No. 29/2020 and No. 78/2019.
A/HRC/WGAD/2021/38
15
institution. In its additional comments, the source clarifies that Mr. Erdal was held in solitary
confinement, in a basement cell of a police station, immediately after his arrest and that, once
transferred to a penitentiary institution, he was isolated from other prisoners.
97.
The Working Group recalls that, according to rule 45 of the United Nations Standard
Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), solitary
confinement should be used only in exceptional cases as a last resort, for as short a time as
possible and subject to independent review, and only pursuant to the authorization by a
competent authority. Prolonged solitary confinement, in other words solitary confinement for
a time period in excess of 15 consecutive days, is prohibited under rules 43 (1) (b) and 44 of
the Nelson Mandela Rules.
98.
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 noting the Government’s standing invitation to all 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
99.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Cihan Erdal, being in contravention of articles 6, 8, 9, 10
and 11 of the Universal Declaration of Human Rights and articles 2 (3), 9, 14 and 16
of the International Covenant on Civil and Political Rights, is arbitrary and falls within
categories I and III.
100.
The Working Group requests the Government of Turkey to take the steps necessary
to remedy the situation of Mr. Erdal 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.
101.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to unconditionally release Mr. Erdal immediately and
accord him an enforceable right to compensation and other reparations, in accordance with
international law. In the current context of the global COVID-19 pandemic and the threat that
it poses in places of detention, the Working Group calls upon the Government to take urgent
action to ensure the immediate and unconditional release of Mr. Erdal.
102.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.
Erdal and to take appropriate measures against those responsible for the violation of his
rights.
103.
In accordance with paragraph 33 (a) of its methods of work, the Working Group refers
the present case to the Independent Expert on protection against violence and discrimination
based on sexual orientation and gender identity for appropriate action.
104.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
Follow-up procedure
105.
In accordance with paragraph 20 of its methods of work, the Working Group requests
the source and the Government to provide it with information on action taken in follow-up
to the recommendations made in the present opinion, including:
(a)
Whether Mr. Erdal has been unconditionally released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Erdal;
(c)
Whether an investigation has been conducted into the violation of Mr. Erdal’s
rights and, if so, the outcome of the investigation;
A/HRC/WGAD/2021/38
16
(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.
106.
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.
107.
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.
108.
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.20
[Adopted on 9 September 2021]
20 Human Rights Council resolution 42/22, paras. 3 and 7.