A/HRC/WGAD/2022/8

GE.22-08607(E)

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its ninety-third session, 30 March−8 April 2022

Opinion No. 8/2022 concerning Alettin Duman and Tamer Tibik

(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,1 on 16 December 2021 the Working Group

transmitted to the Governments of Malaysia and Turkey a communication concerning Alettin

Duman and Tamer Tibik. The Government of Malaysia did not reply to the communication.

The Government of Turkey responded on 15 February 2022. 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);

(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,

* In accordance with paragraph 5 of the Working Group’s methods of work, Priya Gopalan did not

participate in the discussion of the present case.

1 A/HRC/36/38.

United Nations

A/HRC/WGAD/2022/8

General Assembly

Distr.: General

7 June 2022

Original: English

A/HRC/WGAD/2022/8

2

or any other status, that aims towards or can result in ignoring the equality of human beings

(category V).

Submissions

Communication from the source

a.

Allegations in relation to Alettin Duman

4.

Alettin Duman, born in 1968, is a Turkish national. His usual residence is in Kuala

Lumpur. Mr. Duman holds a PhD in Physics and Mathematics. He is a teacher and Principal

of the Time International School (Kuala Lumpur) and Director of the Malaysian-Turkish

Dialogue Institute, an organization focused on higher education, business relations and

cultural exchanges. He is married with three children.

b.

Arrest in Malaysia

5.

According to the source, Mr. Duman was arrested on 13 October 2016 near his house

in Kuala Lumpur by law enforcement agents acting on behalf of the Government of Malaysia.

They did not identify themselves or present an arrest warrant. The source indicates that Mr.

Duman was the first Turkish national to be abducted abroad and transferred to Turkey during

an alleged campaign by the Government of Turkey against Turkish dissenters in exile.

6.

On 13 October 2016, Mr. Duman left his house at around 4 p.m. to attend afternoon

prayer in a mosque located approximately 500 metres from his residence. At around 8:30

p.m., when he did not return, his family tried to reach him by telephone and by calling friends

from the mosque, without success. They decided to report the matter to the police who, by

law, are barred from taking any action within 24 hours of the disappearance of an individual.

7.

Mr. Duman’s family waited in the police station until 3 a.m. on 14 October 2016 to

find out what they might do to locate him. However, the Malaysian police insisted that they

could not do anything for 24 hours. At about 6 a.m., Mr. Duman’s family went to the mosque

to enquire whether those present had witnessed anything relating to Mr. Duman. One person

stated that he had seen Mr. Duman in the mosque, but that he left after the prayer.

8.

After the 24-hour waiting period, Malaysian detectives went to the mosque to ask

about the disappearance of Mr. Duman. More eyewitnesses stated that Mr. Duman had

attended the prayer and left the mosque safely. Mr. Duman’s family suspected what might

have happened to him when a State-run news agency reported that the Minister for Foreign

Affairs of Turkey had announced that three persons had been transferred from Malaysia and

were being detained for their alleged membership of a terrorist organization.

9.

According to the source, it emerged later that Mr. Duman left the mosque during the

afternoon of 13 October 2016 and started to return home. As he was passing through the

intersection between his home and the mosque, a minibus stopped in front of him and

Malaysian men dressed in civilian clothes jumped out. They pulled Mr. Duman by his arm

and tried to push him inside the minibus. Although Mr. Duman resisted, he was forced into

the vehicle. The individuals did not show identification or provide any information.

10.

The source reports that the perpetrators appeared to be human traffickers. To subdue

Mr. Duman, one of them pointed a gun at him. As Mr. Duman tried to break free, they

administered an anaesthetic, causing him to lose consciousness. When Mr. Duman woke up,

he was in an abandoned building in a forest. His hands and feet were bound with thick chains.

He was gagged and had tape over his eyes. It is not clear how long he was unconscious, but

it is believed that he was held in this secret location for approximately 30 hours before being

handed over to Turkish officials at Kuala Lumpur airport.

11.

The source alleges that four people tortured Mr. Duman throughout the day. They

threatened him with a gun and threatened to throw him from the second floor of the building.

Other than two biscuits, they did not give him any food or water while he was tied up with

thick chains. The persons holding Mr. Duman did not tell him why he had been abducted and

did not make any demands of either him or his family. Mr. Duman was given permission for

a last prayer. A number of unidentified individuals asked Mr. Duman many times whether he

A/HRC/WGAD/2022/8

3

was Uighur Turkish or Wahhabi. Mr. Duman replied that he did not belong to either of those

groups.

12.

Hours later, another person arrived and removed the tape from Mr. Duman’s eyes.

That individual showed Mr. Duman a photograph of a man and asked whether he knew him.

It was the first time that Mr. Duman had seen that person and he responded that he did not

know him. Mr. Duman was shown the same photograph and asked the same question while

in custody later in Ankara, again replying that he did not know the man.

c.

Transfer to and detention in Turkey

13.

On 14 October 2016, the day of Mr. Duman’s transfer to Turkey, there was another

individual present in the room where he was being held. That individual is believed to have

been a Turkish national. According to the source, the leader of the group of individuals who

were detaining Mr. Duman told the Turkish national in English that they were mistaken and

that Mr. Duman was not the person they were seeking.

14.

According to the source, the only information Mr. Duman’s family could obtain about

the abduction was a statement on Twitter by the Minister for Foreign Affairs of Turkey and

news published on the website of a news agency of the Government of Turkey. On 14 October

2016, the Minister reportedly posted on Twitter that the Malaysian authorities had

surrendered three people following mutual dialogue between both Governments. The source

stresses that the Minister referred to the handover of three Turkish nationals, including Mr.

Duman, on the evening of 13 October 2016, while Mr. Duman was still being held in a secret

location in a Malaysian forest. The Malaysian authorities had not disclosed Mr. Duman’s

whereabouts to his family, friends and colleagues or acknowledged his detention when the

Minister stated that three persons had been handed over to Turkey. The source claims that

that is an indication that the abduction of Mr. Duman was carried out by the Government of

Malaysia, through agents acting on its behalf and with its support, at the request of the

Turkish authorities.

15.

The source reports that the Minister for Foreign Affairs of Turkey subsequently

provided further details, including that he had met with the Prime Minister of Malaysia the

week before in Thailand. On that occasion, the Prime Minister had affirmed that his

Government would hand over three individuals. Although the Minister for Foreign Affairs

referred to the agreement to transfer three individuals, the identity of the third individual was

never made public.

16.

The source alleges that Mr. Duman was transferred to Kuala Lumpur airport

approximately 30 hours after being abducted. Once at the airport, the Malaysian individuals

who had abducted Mr. Duman handed him over to Turkish officials. Mr. Duman was not

carrying any travel documents, which remain with his family. The source argues that the

circumstances demonstrate a high level of coordination between both Governments.

Approximately one hour later, Mr. Duman was taken on board Turkish Airlines flight TK61.

17.

The flight landed in Istanbul at around 5:05 a.m. on 15 October 2016. Mr. Duman was

taken to the police station at the airport. Before he said anything, the police officers started

yelling at him and he could not understand what was going on, as he was still in a state of

shock. The source states that when a police officer recorded Mr. Duman’s name, he

questioned another officer about Mr. Duman’s presence since there was no warrant for his

arrest. The police officer telephoned his counterparts in Ankara to request that an arrest

warrant be issued for Mr. Duman. Mr. Duman was then transferred to Ankara for

investigation.

18.

During a hearing on 7 August 2017, Mr. Duman described the events surrounding his

abduction, torture and ill-treatment in Malaysia and Turkey.

19.

Following his abduction in Malaysia, Mr. Duman’s eyes were taped, and his hands

and feet were cuffed and connected at his neck with large locks. Owing to the large and heavy

locks, as well as the short chain, it was difficult for Mr. Duman to move, and he ran into the

wall many times. He was constantly beaten and threatened with death because he did not

recognize the person shown to him in the photograph.

A/HRC/WGAD/2022/8

4

20.

Following his arrival in Turkey, Mr. Duman was transferred from Istanbul to Ankara.

He was held in the Milli Piyango (National Lottery Gym) custody centre where he was

allegedly subjected to constant physical and psychological torture by an interrogation team

of six to seven individuals between 15 October and 7 November 2016. As soon as Mr. Duman

arrived at the police station in Ankara, the police asked him for his telephone number. As he

tried to remember, one police officer began to punch him in the face and chest.

21.

According to the source, the Turkish officers assured Mr. Duman that even if they

could not find anything incriminating against him, they would nevertheless punish him. The

interrogation sessions started immediately after his medical examination and lasted for hours.

The perpetrators reportedly used a variety of techniques so that no trace was left on Mr.

Duman’s body. They beat him by hitting his kidneys, forehead and fingers. The traces of

torture had mostly disappeared before the next medical examination. After the first

interrogation, Mr. Duman’s eyes were covered with tape. He was handcuffed with his hands

behind his back the entire time. He was constantly beaten during interrogation sessions and

deprived of food and water. On many occasions, the police officers allegedly tried to choke

Mr. Duman by not letting him breathe. In addition, he was subjected to harassment and threats

at gunpoint. The source claims that Mr. Duman was told to confess, but as the officers could

not find anything incriminating and there was nothing to confess, the torture continued and

became increasingly severe.

22.

The source reports that police officers beat Mr. Duman in the head, face and chest,

near his heart. He was forced to stand while officers hit his knees, hands, shoulders and head

with different objects. Every time Mr. Duman was interrogated, police officers beat him until

he was unable to walk. When the torture was over, they waited for a while before sending

him back to his cell to avoid letting other detainees become aware of the torture. During the

interrogations, Mr. Duman was reportedly stripped naked and sexually assaulted. A bag was

placed over Mr. Duman’s head, making it difficult for him to breathe, especially since he has

his asthma.

23.

The source also reports that Mr. Duman was repeatedly threatened that the authorities

would transfer his family members to Turkey and sexually assault them. According to the

source, the officers burned Mr. Duman’s ears using a lighter, and also used cigarettes to

threaten to burn his eyes, which eventually left him blind. They also squeezed Mr. Duman’s

fingers with a bench vice. He was taken to a lime pit and threatened at gunpoint with death

if he did not reveal “everything”. Mr. Duman was also taken to a stairwell and told that he

would be pushed down the stairs, making it look like an escape attempt. The police officers

used mock executions to force him to admit guilt. During the interrogations, Mr. Duman

pleaded for water, but the officers denied his requests. Every time that Mr. Duman saw a

doctor, police officers sat next to him to deny his requests for medication, such as painkillers,

and discourage communication with medical staff.

24.

In addition, the source claims that Mr. Duman was denied the right to communicate

with his family members. After Mr. Duman was sent to prison on 7 November 2016, he asked

the prison director to allow him to call his family members. However, that request was

denied.

25.

Since his transfer to Turkey, Mr. Duman has been placed under extreme stress and

traumatized. After Mr. Duman was transferred to the Sincan Prison in Ankara, he was placed

with another 30 detainees in a cell with a capacity for 15 people, where some detainees were

sleeping on the ground. He stayed in that cell until December 2017.

26.

From December 2017, Mr. Duman was kept in solitary confinement for more than 18

months. During that time, he was allowed to walk for only 30 minutes a day in the prison

garden with another person. The source recalls that prolonged solitary confinement for 22

hours a day or more without meaningful human contact over a period exceeding 15 days

violates rule 44 of the United Nations Standard Minimum Rules for the Treatment of

Prisoners (the Nelson Mandela Rules). It also constitutes cruel, inhuman or degrading

punishment, and may amount to torture, certainly if applied for months or years. According

to rule 43 of the Nelson Mandela Rules, in no circumstances may restrictions or disciplinary

sanctions amount to torture or other ill-treatment. According to the source, it is unclear why

A/HRC/WGAD/2022/8

5

Mr. Duman poses a security risk of such magnitude to require isolation for more than 18

months.

27.

The source reports that the prison cells are dirty and the air quality is poor. Mr. Duman

had health issues, particularly asthma, in Malaysia and could only breathe at 35 per cent of

normal capacity. Since his transfer to Turkey, Mr. Duman has experienced shock and his

physical and mental health have deteriorated significantly.

d.

Legal proceedings in Malaysia

28.

According to the source, Mr. Duman, his family and his lawyer did not have any

opportunity to defend his rights. Mr. Duman was never brought before a court, nor did the

individuals who held him have any intention of bringing him before a court. Immediately

after his abduction, Mr. Duman was held incommunicado at a secret location without any

possibility of challenging the lawfulness of his detention. He was transferred to the airport

the following day and forcibly removed to Turkey.

29.

The source emphasizes that even if Mr. Duman had been able to challenge the

lawfulness of his detention, and even if a court had rendered a favourable decision, it is highly

unlikely that he could have avoided another abduction and subsequent transfer to Turkey.

e.

Legal proceedings in Turkey

30.

On 15 October 2016, Mr. Duman’s family received a telephone call from a relative in

Istanbul. The relative had been informed by the Turkish police that Mr. Duman was being

held on charges of membership of a terrorist group. His family asked another relative who

lives in Ankara to visit the police station. However, the police did not allow Mr. Duman’s

family member to see him. The family member returned every day to the police station, where

Mr. Duman was held for 21 days, but was never given an opportunity to speak with him.

31.

On 3 November 2016, a State-appointed lawyer informed Mr. Duman’s family that

he would appear in court the following day for an arraignment hearing. Mr. Duman was first

seen by his family on 4 November 2016, 22 days after his abduction. Mr. Duman was unable

to walk, or take even a few steps, owing to the pain in his legs resulting from the torture.

32.

According to the source, the judge adjourned the hearing to 7 November 2016 on the

grounds that some documents were missing. On 7 November 2016, Mr. Duman appeared

again before the judge. After giving his testimony, he waited for a few hours to receive a

decision, handcuffed in a hallway outside the courtroom.

33.

The police accused Mr. Duman of using ByLock, a messaging application. However,

Mr. Duman stated that he had never used this application, that ByLock could not be uploaded

on iPhones, and that he was an iPhone user. Nevertheless, the court decided to place him in

detention until it was clear whether he had used the application. The prosecutor also alleged

that Mr. Duman’s Turkish telephone number was signed up to ByLock and had been used

several times. His lawyer reiterated that this application could not be installed on iPhones

and that Mr. Duman had been using iPhone models for some years.

34.

Mr. Duman’s case was considered at five subsequent hearings on 6 June, 26

September and 21 December 2017, and on 7 February and 17 April 2018. At those hearings,

the charges consisted of using ByLock messenger and holding a Bank Asya account.

35.

In its decision of 17 April 2018, the court found that Mr. Duman was guilty, noting

that in 1993, after Mr. Duman graduated from university, he went to Uzbekistan and worked

at certain schools. In 2011, he moved to Malaysia, where he worked until 2016. On 20

December 2014, Mr. Duman’s telephone number was used on the ByLock application and

the messages demonstrated that he was an administrator of the Fethullah organization,

considered a terrorist movement by Turkey. The court considered that Mr. Duman

coordinated the organization’s activities through ByLock. The court also found that Mr.

Duman had worked for terrorist organizations in Malaysia, as well as in non-profit

organizations and schools, and had held meetings with the Malaysian Deputy Prime Minister.

36.

The source reports that Mr. Duman and his lawyer rejected the court decision, noting

that during his 24 years living outside Turkey, whether in Uzbekistan or Malaysia, Mr.

A/HRC/WGAD/2022/8

6

Duman never had any relationship with a terrorist organization. The school where he worked

in Uzbekistan belonged to the Government of Uzbekistan. Moreover, Mr. Duman denied

meeting with the Deputy Prime Minister of Malaysia, and using the ByLock application. Mr.

Duman reportedly asked to see evidence of his alleged criminal behaviour.

37.

In regard to the accusation concerning his former bank account, Mr. Duman reiterated

during the hearing on 6 June 2017 that he had an account, but that it had been blocked for a

long time due to security reasons and that he had not used it.

38.

The court sentenced Mr. Duman to 12 years’ imprisonment. However, the judge

increased his sentence to 18 years’ imprisonment, having concluded that Mr. Duman was a

member of a terrorist organization in which he was alleged to have held an administrative

role. The sentence was based on Mr. Duman’s alleged use of the ByLock application. Mr.

Duman filed an appeal, but the Court of Appeal upheld the sentence of 18 years’

imprisonment. Mr. Duman again brought an appeal to the Supreme Court, without any

expectation that it would provide relief.

39.

According to the source, Mr. Duman was tried by a judicial system that is entirely

dependent on the executive. Mr. Duman was not in Turkey at the time the authorities claim

that he used a Turkish number to download and use ByLock. Even if he had used a freely

downloadable application, which is not in itself a crime, his sentence is highly unfair.

40.

In Turkey, Mr. Duman’s family experienced significant difficulty in hiring a lawyer.

According to the source, when lawyers learned that Mr. Duman was transferred from

Malaysia, they refused to even consider taking on his case, because that would be sufficient

to imprison them. After months of searching, Mr. Duman’s family finally found a lawyer

who would take the case, but he could not assist because of the immense pressure in the

present case. Mr. Duman was in effect abandoned by his lawyer, owing to the lawyer’s

reasonable fear that he could be associated with an alleged terrorist movement if he continued

to provide legal representation.

41.

Mr. Duman is currently serving his sentence in Keskin Prison in Kirikkale, southeast

of Ankara, in solitary confinement. There are food shortages in the prison and Mr. Duman is

suffering from malnutrition. His final appeal was rejected by Turkey’s Constitutional Court.

The source emphasizes that Mr. Duman’s psychological health is deteriorating and he is

currently taking heavy antidepression medication.

f.

Allegations in relation to Tamer Tibik

42.

Tamer Tibik, born in 1974, is a Turkish national. His usual residence is in Kuala

Lumpur. Mr. Tibik is a businessman and Secretary-General of the Hizmet-affiliated

Malaysian Turkish Chamber of Commerce and Industry. He is married with two children.

43.

The source reports that Mr. Tibik was abducted in Kuala Lumpur on 13 October 2016

by law enforcement agents acting on behalf of the Government of Malaysia. The agents did

not present a warrant or other decision by a public authority ordering his detention.

g.

Background

44.

According to the source, the present case demonstrates a pattern of discrimination and

persecution against persons whose family members are accused of links to certain movements

in Turkey. The discrimination intensified in the aftermath of a corruption scandal in

December 2013 and the attempted coup d’état in Turkey on 15 July 2016.

45.

The source reports that a close relative of Mr. Tibik, who worked as a government

employee, was subjected to harassment, threats, insults and mocking at work in 2015. That

year, the human resources department requested information about the schools attended by

the children of employees and the places of employment of their spouses. Employees were

required to submit medical reports, medication expenses and similar documents, which were

reportedly transmitted to Turkey’s intelligence agency. In addition, the children of the

families associated with the Hizmet/Gülen movement were bullied at school.

46.

By mid-2015, the situation was unbearable, and Mr. Tibik and his family decided to

move to Malaysia to escape persecution. Mr. Tibik left first, arriving in Kuala Lumpur in

A/HRC/WGAD/2022/8

7

mid-September 2015. After Mr. Tibik left Turkey, the police visited the family residence

twice, and summoned his relatives to the police station to ask about his whereabouts.

47.

Following the attempted coup d’état on 15 July 2016, which was blamed on the

Hizmet/Gülen movement, Mr. Tibik received news about the closure and seizure of

thousands of charitable associations, companies and media outlets, including the school

attended by his children, hospitals and his former company. On 7 August 2016, Mr. Tibik’s

name and photograph appeared in a newspaper article in which he was accused of being part

of the Fethullah terrorist organization and one of its most important financial officers.

h.

Arrest in Malaysias

48.

Less information is available in Mr. Tibik’s case than in the case of Mr. Duman. The

source notes that both individuals were abducted on the same day in very similar

circumstances, and it is also likely that they were held by the same group of individuals. They

were also likely held in the same facility. However, Mr. Tibik’s account does not include all

the events relating to his abduction, detention and transfer. While Mr. Duman’s account was

included in the official report, Mr. Tibik’s account was not.

49.

The source reports that Mr. Tibik was abducted on 13 October 2016 at approximately

12:30 pm from the parking lot of the building where he was taking an English course. As Mr.

Tibik was leaving his class, four individuals suddenly grabbed him by the arms and forced

him into a van. Mr. Tibik requested their identification, which he could not see properly. The

individuals handcuffed Mr. Tibik and forced him to wear black glasses, impeding his vision.

After driving for a while, they arrived at a two-storey, detached and deserted building in the

woods. There were other people in the building. When one of the men asked Mr. Tibik if he

knew why he was there, and he responded that he did not, he was informed that he would be

sent back to Turkey the following day and that they would inform his family.

50.

After some time, Mr. Tibik was restrained with a dog chain around his neck, between

his hands and ankles, and locked onto the wall. A band and glasses were put on his eyes.

When Mr. Tibik requested permission to pray, he was allowed to do so, but was kept in chains

most of the time. In the evening, he was given some water and food, but was not allowed to

eat by himself, as he was chained. The individuals put water and food in his mouth. At night,

some other individuals came and interrogated Mr. Tibik. He was forced to sleep on the cold

ground with two other people. The next day, they were taken to the airport handcuffed with

their eyes and mouths covered with bands. After waiting at the airport for some time, they

boarded a flight in the evening of 14 October 2016.

51.

Over the next two days, Mr. Tibik’s family had no information about his whereabouts.

His family, neighbours and friends searched for him in hospitals and police stations, fearing

that he had been involved in a traffic accident or was the victim of a crime. Following the

disappearance of Mr. Tibik and Mr. Duman, their colleagues filed missing persons’ reports

with the Malaysian police. They had not foreseen the possibility of both men being abducted

and transferred to Turkey.

i.

Transfer to and detention in Turkey

52.

The only information about Mr. Tibik’s transfer to Turkey was a statement posted on

Twitter by the Minister for Foreign Affairs of Turkey on 14 October 2016 (see para. 14). Mr.

Tibik was placed on Turkish Airlines flight TK61, departing Kuala Lumpur at 11:05 pm on

14 October 2016. Mr. Duman and Mr. Tibik appear to have been on the same flight, but were

held separately without any contact. The flight landed in Istanbul at around 5:05 am on 15

October 2016.

53.

The source reports that Mr. Tibik was taken to Ankara TEM sports gym on 15 October

2016 where he remained for 18 days, having to sleep on the floor and being given little food

or water. A decision on his arrest was issued two weeks later. Officers took him for

interrogation every day after his medical examination at 4 p.m., and subjected him to

psychological torture.

54.

During this period, the officers did not let Mr. Tibik change his clothes or brush his

teeth. The police officers who visited the gym continuously abused him. The lights were kept

A/HRC/WGAD/2022/8

8

on until 3 a.m. to prevent him from sleeping. During the interrogations, the officers insulted

and humiliated Mr. Tibik. They threatened to bring one of Mr. Tibik’s family members to

the location and to subject Mr. Tibik to beatings.

j.

Legal proceedings in Malaysia

55.

According to the source, Mr. Tibik, his family and his lawyer did not have any

opportunity to defend his rights. Mr. Tibik was never brought before a court, nor did the

individuals who held him have any intention of bringing him before a court. Immediately

after his abduction, Mr. Tibik was held incommunicado at a secret location without any

possibility of challenging the lawfulness of his detention. He was transferred to the airport

the following day and forcibly removed to Turkey.

56.

The source emphasizes that even if Mr. Tibik could have challenged the lawfulness

of his detention, and even if a court had rendered a favourable decision, it is highly unlikely

that he could have avoided another abduction and subsequent transfer to Turkey.

k.

Legal proceedings in Turkey

57.

Following his transfer to Turkey, Mr. Tibik was sent to the Sincan T Type Prison in

Ankara. According to the source, an arrest warrant for Mr. Tibik was issued approximately

two weeks after he was transferred to Turkey.

58.

Prior to leaving Turkey in 2015, Mr. Tibik had hired a lawyer. However, his lawyer

was imprisoned following the attempted coup d’état and was unable to represent Mr. Tibik.

Following many rejections, Mr. Tibik’s family hired a lawyer to prepare his defence. Ten

days after Mr. Tibik was remanded in custody, the lawyer had not yet been allowed to see

him. The authorities decided not to accept Mr. Tibik’s lawyer, and a lawyer was assigned to

him. The lawyer did not protect Mr. Tibik’s interests, only those of the prosecution. When

Mr. Tibik’s family requested copies of the file and court documents, the lawyer would not

share them. The source claims that, in the absence of a lawyer of his own choice and without

documents to mount a meaningful defence, Mr. Tibik’s right to a fair trial was violated.

59.

According to the source, Mr. Tibik’s family was advised by the prosecutor to return

to Turkey to convince Mr. Tibik to confess his involvement in the attempted coup d’état.

They were told that if Mr. Tibik confessed, he would be sentenced to only 2 years’

imprisonment, but risked a 15-year sentence if he did not confess. When Mr. Tibik’s family

stated that he was innocent and asked for relevant documents, the prosecutor refused and

stated that if Mr. Tibik’s family returned to Turkey, they would be immediately detained.

60.

Mr. Tibik was accused of being a member of the Hizmet/Gülen movement; of

supporting the organization financially; of working at companies affiliated with the

organization; of encouraging people to vote for the Republican People’s Party in local

elections; of encouraging people to vote for independent candidates in general elections; of

attempting to increase subscriptions to the newspaper, Zaman; of vacationing at a hotel

affiliated with the organization; and of using the ByLock application.

61.

On 29 May 2018, Mr. Tibik was sentenced, along with another person, to 12.5 years

in prison for membership in a terrorist organization. Seven other people were sentenced to 6

years and 3 months in prison for “being a member of an armed terrorist organization”. The

court separated the files of four other defendants accused of the same charges whose

whereabouts were unknown. All of the defendants demanded their acquittal.

62.

The prosecution concluded that Mr. Tibik was one of the founders and leaders of the

Fethullah terrorist organization. The source alleges that all of the accused persons in the

proceedings, who are former employees of the same company, stated that they were forced

to sign statements that had been written in advance. During his custody, Mr. Tibik was

threatened and forced to accept the charges against him.

63.

Mr. Tibik was held in solitary confinement at Keskin T Type Closed Prison, E-47

Ward, in Kirikkale. The meals were insufficient and if prisoners did not buy food from the

canteen, or if their families did not bring food, they would certainly starve. Prisoners could

not mention such issues as torture or ill-treatment, as the prison telephones were tapped and

their right to communicate with the outside world would be revoked. Since the prison guards

A/HRC/WGAD/2022/8

9

always accompanied prisoners, even during visits by lawyers, prisoners were not able to

discuss their circumstances due to fear of retaliation from the prison administration.

l.

Legal analysis

64.

The source submits that the detention of Mr. Duman and Mr. Tibik is arbitrary under

categories I, II, III and V. The source argues that it is clearly impossible to invoke any legal

basis justifying their abduction and detention. Mr. Duman and Mr. Tibik were not afforded

the right to seek and to enjoy asylum in Malaysia. Removing a person to another 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 article 14 of the Universal Declaration of Human Rights.

Moreover, the detention of Mr. Duman and Mr. Tibik failed to meet any minimum

international standards of due process, and it constitutes a violation of international law for

reasons of discrimination based on political or other opinion.

Responses from the Governments

65.

On 16 December 2021, the Working Group transmitted the source’s allegations to the

Governments of Malaysia and Turkey under its regular communication procedure, requesting

both Governments to provide detailed information by 14 February 2022 about the situation

of Mr. Duman and Mr. Tibik. In particular, the Working Group requested the Government of

Malaysia to provide information about the circumstances in which Mr. Duman and Mr. Tibik

were deprived of their liberty, and clarification regarding the legal provisions justifying their

apprehension, transfer and detention.

66.

On 11 February 2022, the Government of Turkey submitted its reply, which focused

on the alleged activities of the Fethullah terrorist organization in Turkey, in general, without

discussing the cases of Mr. Duman and Mr. Tibik or addressing the allegations made by the

source about the arbitrariness of their detention. The Government of Turkey requested that

the special procedures not allow the Fethullah terrorist organization and its members to abuse

those mechanisms and asked that the organization’s allegations be dismissed. The response

from the Government indicates that Mr. Tibik was released on 14 January 2022, while

criminal proceedings against him are still ongoing.

67.

On 16 February 2022, the Government of Malaysia requested an extension of the

deadline for its response for an additional two months.2 Given that the request was made after

the deadline for response, the Working Group did not grant the extension.3 The Government

of Malaysia did not submit any further response to the communication.

68.

In accordance with paragraph 16 of its methods of work, the Working Group will

render the present opinion on the basis of all the information it has obtained. ***

Further comments from the source

69.

On 18 February 2022, the Working Group transmitted the response from the

Government of Turkey to the source. The source argues that the response of the Government

does not address the allegations made and confirms that Mr. Duman continues to be detained

in difficult conditions, while Mr. Tibik was conditionally released pending consideration of

his appeal.

Discussion

70.

In the absence of a response from the Government of Malaysia and in view of the

timely response from the Government of Turkey, the Working Group has decided to render

the present opinion in accordance with paragraph 15 of its methods of work.

71.

In determining whether the deprivation of liberty of Mr. Duman and Mr. Tibik was

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

2 The Working Group’s methods of work allow an extension to be granted for a maximum of one

month (A/HRC/36/38, para. 16).

3 Opinions Nos. 1/2017, para. 36, No. 9/2019, para. 24, No. 85/2020, para. 60, and No. 10/2021, para.

45.

A/HRC/WGAD/2022/8

10

deal with evidentiary issues. If the source has presented a prima facie case of breach of the

international law constituting arbitrary deprivation of liberty, the burden of proof should be

understood to rest upon each Government to refute the allegations.4

72.

Given the similarity of the allegations in relation to Mr. Duman and Mr. Tibik, the

Working Group will consider their cases together under each relevant category of its methods

of work, noting any findings particular to either individual. The Working Group will consider

the allegations against the Governments of Malaysia and Turkey separately.

a.

Allegations against Malaysia

Category I

73.

The source alleges that Mr. Duman and Mr. Tibik were abducted on 13 October 2016

by law enforcement agents acting on behalf of the Government of Malaysia who did not

identify themselves or present an arrest warrant. Both were allegedly held in a secret location

in the forest in Malaysia, possibly together, and forcibly removed to Turkey on 14 October.

Although it had an opportunity to do so, the Government of Malaysia did not submit any

information to challenge these allegations.

74.

The Working Group considers that the source’s account of the abduction of Mr.

Duman and Mr. Tibik is credible and notes that it was not rebutted by the Government of

Malaysia. While the agents who abducted Mr. Duman and Mr. Tibik were unidentified, the

circumstances of the abduction strongly suggest that they were acting on behalf of the

Malaysian authorities. The Working Group notes the source’s uncontested allegation that the

Minister for Foreign Affairs of Turkey posted on Twitter that Malaysia had surrendered three

Turkish nationals on 13 October 2016 following mutual dialogue between both

Governments. However, the handover had not been publicly disclosed by the Malaysian

authorities at that point. Moreover, the handing over of both men at the airport to board a

flight without travel documents suggests the involvement of, and a high degree of

coordination among, State agents from both Governments, rather than a random abduction.

The whereabouts of Mr. Duman and Mr. Tibik were not disclosed to their families, friends

and colleagues, who reportedly went to great lengths to locate them.

75.

The source’s account demonstrates that Mr. Duman and Mr. Tibik were deprived of

their liberty against their will, with the involvement of agents acting on behalf of the

Government of Malaysia, who refused to disclose their fate and whereabouts.5 As a result,

the Working Group considers that Mr. Duman and Mr. Tibik were subjected to enforced

disappearance between 13 and 14 October 2016, and refers this case to the Working Group

on Enforced or Involuntary Disappearances.

76.

Enforced disappearance constitutes an aggravated form of arbitrary detention.6 The

abduction of Mr. Duman and Mr. Tibik took place completely outside established legal

processes, in violation of article 9 of the Universal Declaration of Human Rights. Indeed, the

manner in which both men were abducted suggests a complete disregard for legal procedures.

They were reportedly forced into vehicles by several agents, and incapacitated through the

administration of an anaesthetic in Mr. Duman’s case and by plastic handcuffs and dark

glasses in Mr. Tibik’s case. Moreover, both men were held at a secret location at which chains

and permanent wall fixtures were reportedly used, suggesting that this location is not

temporary. The Working Group urges the Government of Malaysia to close this abandoned

building immediately and put an end to its use as a secret detention facility.

77.

The source further alleges that neither Mr. Duman nor Mr. Tibik was served with an

arrest warrant. The Government of Malaysia did not respond to this allegation. The right to

be served with an arrest warrant is procedurally inherent in the right to liberty and security

of person and the prohibition of arbitrary detention under articles 3 and 9 of the Universal

Declaration of Human Rights, as well as under principles 2, 4 and 9 of the Body of Principles

4 A/HRC/19/57, para. 68.

5 A/HRC/16/48/Add.3 and Corr.1, para. 21.

6 Opinions No. 11/2020, para. 41, 41/2020, para. 61, and 37/2021, para. 65.

A/HRC/WGAD/2022/8

11

for the Protection of All Persons under Any Form of Detention or Imprisonment.7 By failing

to present a warrant and failing to inform Mr. Duman and Mr. Tibik of the reasons why they

were detained, the authorities did not invoke a legal basis for their detention.8

78.

In addition, the Government of Malaysia has not replied to the allegation that Mr.

Duman and Mr. Tibik were held incommunicado until their forcible removal to Turkey. They

were not permitted to contact their families or lawyers, and the Malaysian authorities did not

acknowledge their detention, thus placing them outside the protection of the law, in violation

of article 6 of the Universal Declaration of Human Rights. Holding persons incommunicado

violates their right to challenge the lawfulness of their detention before a court.9 Judicial

oversight of detention is a fundamental safeguard of personal liberty and is essential in

ensuring that detention has a legal basis.10 Given that Mr. Duman and Mr. Tibik 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. Their deprivation of liberty in Malaysia falls within category I.

Category II

79.

The source submits that the detention of Mr. Duman and Mr. Tibik falls under

category II because they were not afforded the right to seek and to enjoy asylum in Malaysia.

According to the source, removing a person to another 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 article 14 of the Universal Declaration of Human Rights.

80.

While Mr. Duman and Mr. Tibik had moved to Malaysia for employment and to

escape persecution in Turkey, they do not appear to have been detained for seeking asylum.

Rather, it appears that Mr. Duman and Mr. Tibik were detained in Malaysia and forcibly

transferred at the request of the Government of Turkey for having exercised freedom of

expression through their alleged use of the ByLock application. 11 The allegations are

explored further in paragraphs 96 to 100 below in relation to Turkey. The deprivation of

liberty of Mr. Duman and Mr. Tibik in Malaysia falls within category II.

Category III

81.

The source alleges that the abduction and detention of Mr. Duman and Mr. Tibik failed

to meet any minimum international standards of due process. The Government of Malaysia

did not address this allegation.

82.

As the Working Group has stated, involuntary expulsion to a foreign State without a

hearing by judicial authorities cannot be in conformity with due process.12 International law

regarding extradition provides procedures that must be observed in returning individuals to

face criminal proceedings in another country and in ensuring that their right to a fair trial is

protected.13

83.

The source has established a credible case, which was not rebutted by the Government

of Malaysia, that those procedures were not observed in this case. Mr. Duman and Mr. Tibik

were seized by the Malaysian authorities and handed over to Turkey without a fair and public

extradition hearing by an independent and impartial tribunal in Malaysia. The Government

of Malaysia could have transferred Mr. Duman and Mr. Tibik through normal extradition

channels, but chose to circumvent this process by forcibly transferring them to Turkey. In

doing so, the Government of Malaysia allegedly allowed Turkish agents to operate on

Malaysian territory through their presence during the interrogation of Mr. Duman and his

7 Opinions No. 37/2020, para. 52, and No. 65/2020, para. 75.

8 Opinion No. 37/2021, para. 65.

9 Opinions No. 10/2019, para. 65, and No. 36/2020, para. 53.

10 A/HRC/30/37, para. 3.

11 Opinion No. 42/2020, paras. 62 and 83.

12 Opinions No. 42/2020, para. 64, and No. 84/2020, para. 53; and A/HRC/48/55, para. 54. See also

A/HRC/48/57 and A/HRC/49/45 (reiterating that transnational transfers must comply with

international human rights law).

13 Opinions No. 33/2020, para. 63, No. 42/2020, para. 60, and No. 84/2020, para. 54; and A/HRC/48/55,

para. 54.

A/HRC/WGAD/2022/8

12

handover to Turkish officials at the airport in Kuala Lumpur. Given the similarity between

the abductions of Mr. Duman and Mr. Tibik, it is likely that Turkish officials were also

involved in Mr. Tibik’s transfer to Turkey. By facilitating the transfer of Mr. Duman and Mr.

Tibik, the Government of Malaysia denied their fair trial rights.14

84.

The Working Group recalls that individuals should not be expelled to another country

when there are substantial grounds for believing that their lives would be at risk, or that they

would be in danger of being subjected to torture or ill-treatment.15 The risk of arbitrary

detention in the receiving State must be among the elements taken into consideration.16

According to the source’s uncontested allegations, the Malaysian authorities facilitated Mr.

Duman’s and Mr. Tibik’s forcible transfer to Turkey without any apparent regard for the

risks, relying only on the agreement between both Governments to surrender three Turkish

nationals following “mutual dialogue”. Moreover, the Government of Malaysia has not

provided any information to suggest that it assessed the charges and evidence against Mr.

Duman and Mr. Tibik, and whether they would receive a fair trial. The Working Group

considers that the above-mentioned elements represent a violation of the principle of non-

refoulement.17 The deprivation of liberty of Mr. Duman and Mr. Tibik in Malaysia falls

within category III.

Category V

85.

The source alleges that the detention of Mr. Duman and Mr. Tibik was based on their

political or other opinions. The Government of Malaysia did not contest this allegation.

86.

In its jurisprudence, the Working Group has noted a pattern of targeting persons with

alleged links to the Hizmet/Gülen movement on the discriminatory basis of their political or

other opinions.18 In the present case, the Government of Malaysia has, at the request of the

Government of Turkey, detained Mr. Duman and Mr. Tibik based on a prohibited ground of

discrimination. Their deprivation of liberty in Malaysia falls within category V.19

87.

The Working Group expresses its grave concern at the alleged treatment of Mr.

Duman and Mr. Tibik following their abduction, which may amount to torture and ill-

treatment, in violation of the absolute prohibition of torture as a peremptory norm of

international law,20 and the prohibition of torture and ill-treatment under article 5 of the

Universal Declaration of Human Rights. The Working Group refers this case to the Special

Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment.

88.

The Working Group considers that the Government of Malaysia is responsible for its

own actions in the abduction, detention and forcible transfer of Mr. Duman and Mr. Tibik,

as well as the subsequent violations of their rights in Turkey.21 The Working Group calls

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

unconditional release of Mr. Duman and Mr. Tibik.

b.

Allegations against Turkey

89.

As a preliminary issue, the Working Group wishes to clarify that the procedural rules

governing its consideration of communications are contained in its methods of work. There

is no provision preventing the Working Group from considering cases owing to the lack of

exhaustion of domestic remedies. The Working Group has also confirmed this in its

jurisprudence.22

14 Opinion No. 42/2020, paras. 64−67.

15 A/HRC/4/40, paras. 44−45.

16 Opinions No. 11/2018, para. 54, and No. 15/2021, para. 94; and A/HRC/48/55, para. 59.

17 Opinion No. 48/2020, para. 83.

18 Opinions No. 11/2018, No. 42/2018, No. 43/2018, No. 10/2019, No. 53/2019, No. 79/2019, No.

2/2020, No. 29/2020, No. 30/2020, No. 47/2020, No. 51/2020 and No. 84/2020.

19 Opinion No. 11/2018, para. 61.

20 Opinions No. 46/2017, para. 25, and No. 70/2019, para. 72.

21 Opinions No. 11/2018, para. 58, No. 42/2020, para. 69, No. 51/2020, para. 72, and No. 84/2020, para.

59.

22 Opinions No. 10/2019, para. 81, and No. 84/2020, para. 61.

A/HRC/WGAD/2022/8

13

90.

Second, the state of emergency – declared after the attempted coup d’état, endorsed

by the Turkish parliament on 21 July 2016 and lifted on 19 July 2018 – and derogations from

the Covenant were in place during the detention of Mr. Duman and Mr. Tibik.23 However,

the Working Group is empowered under its methods of work to refer to the Universal

Declaration of Human Rights and customary international law.24 Moreover, articles 9 and 14

of the Covenant are most relevant to the present case. 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.25

91.

Third, the Government of Turkey requested that the special procedures not allow the

Fethullah terrorist organization and its members to abuse those mechanisms and asked that

the organization’s allegations be dismissed. The Human Rights Council has mandated the

Working Group to consider situations of arbitrary detention worldwide, making no

distinction as to who can bring allegations to its attention. The Working Group is required to

act impartially and independently, and treats all submissions equally and accepts them as

allegations, inviting the Government concerned to respond.26 The Government of Turkey did

not address the situation of Mr. Duman and Mr. Tibik, focusing instead on alleged actions of

the Fethullah terrorist organization in Turkey. The Working Group regrets that the

Government of Turkey did not avail itself of the opportunity to address the serious allegations

in the present case.

92.

The Government of Turkey states that Mr. Tibik was released by the Fourth Assize

Court of Ankara on 14 January 2022. According to paragraph 17 (a) of its methods of work,

the Working Group reserves the right to render an opinion, notwithstanding the release of the

person concerned. Mr. Duman and Mr. Tibik were allegedly detained without a legal basis,

in proceedings that did not afford due process and were based on discriminatory grounds.

The source confirms that Mr. Duman remains in detention, while Mr. Tibik was conditionally

released pending consideration of his appeal. Accordingly, the Working Group has decided

to render an opinion in this case.

Category I

93.

The source alleges that, following their arrival in Turkey on 15 October 2016, Mr.

Duman and Mr. Tibik were arrested without a warrant. According to the source, a police

officer at Istanbul airport questioned Mr. Duman’s presence because no warrant had been

issued for his apprehension. The officer reportedly called his counterparts in Ankara to

request a warrant. An arrest warrant for Mr. Tibik was issued approximately two weeks after

he was transferred to Turkey. The Government of Turkey did not address these allegations.

94.

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

on such grounds and in accordance with such procedure as are established by law. The source

provided credible information, which was not rebutted by the Government of Turkey, that

Mr. Duman and Mr. Tibik were arrested without an arrest warrant, in violation of article 9

(1).27 As a result, the authorities did not establish a legal basis for the detention of Mr. Duman

and Mr. Tibik in Turkey.

95.

The Working Group notes that Mr. Duman was abducted on 13 October 2016, but

does not appear to have been brought before a Turkish court until 4 November 2016. The

Government of Turkey did not indicate that Mr. Duman was presented in court at an earlier

point. His right under article 9 (3) of the Covenant to be brought promptly before a judge to

challenge the legality of his detention was violated. 28 Derogation under article 4 of the

Covenant cannot justify detention that is unreasonable or unnecessary,29 as in this case where

23 C.N.580.2016.TREATIES-IV.4 (Depositary Notification).

24 A/HRC/36/38, para. 7.

25 Human Rights Committee, general comment No. 29 (2001), para. 4; and Özçelik et al. v. Turkey

(CCPR/C/125/D/2980/2017), para. 9.2.

26 Opinion No. 84/2020, para. 62.

27 Opinions No. 44/2019, para. 52, and No. 45/2019, para. 51.

28 Human Rights Committee, general comment No. 35 (2014), para. 33; CCPR/C/125/D/2980/2017,

para. 9.7; and CAT/C/TUR/CO/4, paras. 19−20.

29 General comment No. 35 (2014), paras. 66−67; and Özçelik et al. v. Turkey, para. 9.2.

A/HRC/WGAD/2022/8

14

it has not been subject to prompt judicial review. Given that Mr. Duman was unable to

challenge his detention for 22 days, 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.

The detention of Mr. Duman and Mr. Tibik in Turkey falls within category I.

Category II

96.

The source alleges that in April 2018, Mr. Duman was convicted of membership in a

terrorist organization and sentenced to 18 years’ imprisonment. Mr. Duman’s conviction was

based on alleged links with the Hizmet/Gülen movement, manifested primarily through his

alleged use of the ByLock application and a bank account previously held at Bank Asya. He

was found to have worked in certain schools and non-profit organizations in Uzbekistan and

Malaysia, and to have met with the Malaysian Deputy Prime Minister. In May 2018, Mr.

Tibik was convicted of membership in a terrorist organization and sentenced to 12.5 years’

imprisonment on the basis of his alleged use of ByLock. He was accused of having worked

at Hizmet-affiliated companies, encouraging votes for a certain party or candidate in

elections, attempting to increase newspaper subscriptions and vacationing at a Hizmet-

affiliated hotel. The Government of Turkey did not address those allegations.

97.

As the Working Group has noted,30 while the National Security Council of Turkey

had already designated the Fethullah organization and the Hizmet/Gülen movement as

terrorist organizations in 2015, until recently the movement enjoyed a presence in many

sectors of Turkish society. It would be rare for a Turkish citizen never to have had any contact

with this movement.31

98.

In this case, as in many others before,32 the detention of Mr. Duman and Mr. Tibik

was based on their alleged links with the Hizmet/Gülen movement, as well as ordinary

activities undertaken years before their detention, such as holding a bank account, using a

messaging application, and conduct relating to their employment and personal life. The

Government of Turkey offered no explanation as to how any of those activities, most notably

the alleged use of the ByLock application, amounted to a criminal act, nor has it presented

any information to suggest that Mr. Duman and Mr. Tibik were members of a terrorist

organization.

99.

The Working Group recalls the findings of the Special Rapporteur on the promotion

and protection of the right to freedom of opinion and expression during his visit to Turkey in

November 2016, referring to arrests based on the existence of ByLock on a person’s

computer and ambiguous evidence.33 The Human Rights Committee has also indicated that

the use of ByLock and holding a Bank Asya account are insufficient to justify detention.34

100.

The Working Group considers that, even if Mr. Duman and Mr. Tibik had used

ByLock, that activity would merely represent the peaceful exercise of their rights to freedom

of expression and of opinion under article 19 of the Covenant.35 The detention of Mr. Duman

and Mr. Tibik in Turkey falls within category II. The Working Group refers this case to the

Special Rapporteur on the promotion and protection of the right to freedom of opinion and

expression.

Category III

101.

Given its finding that the detention of Mr. Duman and Mr. Tibik falls within category

II, the Working Group emphasizes that no trial should have taken place. Both men were,

however, convicted and sentenced in April and May 2018, respectively. The source submits

30 Opinion No. 51/2020, para. 90.

31 Commissioner for Human Rights, “Memorandum on the human rights implications of the measures

taken under the state of emergency in Turkey (CommDH(2016)35) (Council of Europe, 7 October

2016), para. 20; available at https://rm.coe.int/16806db6f1.

32 Opinions No. 11/2018, No. 42/2018, No. 43/2018, No. 10/2019, No. 53/2019, No. 79/2019, No.

2/2020, No. 29/2020, No. 30/2020, No. 47/2020, No. 51/2020 and No. 84/2020.

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

34 Özçelik et al. v. Turkey, para. 9.4.

35 Opinions No. 42/2018, No. 44/2018, No. 29/2020, No. 30/2020 and No. 51/2020.

A/HRC/WGAD/2022/8

15

that the proceedings failed to meet any minimum international standards of due process. The

Government of Turkey did not address this allegation.

102.

According to the source, Mr. Duman’s family found a lawyer after months of

searching, but the lawyer could not provide representation owing to a reasonable fear of being

associated with an alleged terrorist movement. Similarly, Mr. Tibik’s lawyer was not

permitted to see him in the 10 days following his remand. The authorities assigned a lawyer

to represent Mr. Tibik. The lawyer did not protect Mr. Tibik’s interests, but only those of the

prosecution.

103.

The Working Group is concerned at the reported reluctance of lawyers to provide

legal services owing to fear of imprisonment. Lawyers must be able to carry out their

functions effectively and independently, free from fear of reprisal, interference, intimidation,

hindrance or harassment.36 Mr. Duman and Mr. Tibik were not afforded the right to a lawyer

of their choice. Moreover, Mr. Tibik’s appointed lawyer failed to provide effective legal

assistance.37 Mr. Duman and Mr. Tibik were denied their rights, under article 14 (3) (b) and

(d) of the Covenant, to communicate with, and defend themselves through, counsel of their

own choosing.

104.

In addition, the source alleges that both men were subjected to physical and

psychological torture and ill-treatment, including prolonged solitary confinement, 38 in

Turkey. Their treatment appears to violate article 5 of the Universal Declaration of Human

Rights, article 7 of the Covenant, and articles 2 and 16 of the Convention against Torture and

Other Cruel, Inhuman or Degrading Treatment or Punishment. The Working Group considers

that the ability of both men to participate in their own defence prior to and during their

proceedings would have been severely affected by the alleged treatment, violating the

principle of the equality of arms under article 14 (1) of the Covenant.39

105.

It appears that Mr. Duman reported his torture at a hearing on 7 August 2017, while

his proceedings were ongoing. His account was produced in an official report. Moreover, he

was allegedly unable to walk at his arraignment hearing as a result of the torture.40 There is

nothing to suggest, however, that the court stayed the proceedings or ordered an independent

investigation, in violation of Mr. Duman’s right to be tried by an independent and impartial

tribunal under article 14 (1) of the Covenant, and articles 12, 13 and 14 of the Convention

against Torture.41 The Working Group refers this case to the Special Rapporteur on torture

and other cruel, inhuman or degrading treatment or punishment and the Special Rapporteur

on the independence of judges and lawyers.

106.

The source further alleges that on 7 August 2016, Mr. Tibik’s name and photograph

appeared in a newspaper article in Turkey, accusing him of being part of the Fethullah

terrorist organization and one of its most important financial officers. In addition, Mr. Tibik’s

family requested copies of his file, but his State-appointed lawyer and the prosecutor refused

to produce the requested documents. Mr. Tibik was reportedly forced to sign pre-written

statements and accept the charges. In the absence of a rebuttal from the Government of

Turkey, the Working Group finds violations of Mr. Tibik’s right to a fair hearing, of his right

to the presumption of innocence and of his right not to be compelled to confess guilt under

article 14 (1), (2) and (3) (g) of the Covenant.42 The detention of Mr. Duman and Mr. Tibik

in Turkey falls within category III.

Category V

107.

The Working Group has found a pattern in Turkey of targeting those with alleged

links to the Hizmet/Gülen movement. The present case is part of that pattern. Mr. Duman and

36 A/HRC/30/37, annex, paras. 12−15; Basic Principles on the Role of Lawyers, principles 16−21;

opinion No. 84/2020, para. 45; and A/HRC/45/16, para. 54.

37 Opinion No. 6/2021, para. 64.

38 Opinion No. 93/2017, para. 55.

39 Opinion No. 61/2020, para. 84; and CCPR/C/TUR/CO/1, para. 14.

40 Opinion No. 29/2017, paras. 63−65.

41 Opinion No. 4/2021, para. 106.

42 Human Rights Committee, general comment No. 32 (2007), para. 6.

A/HRC/WGAD/2022/8

16

Mr. Tibik were detained on the discriminatory basis of their alleged political or other opinion,

contrary to articles 2 (1) and 26 of the Covenant. Their detention in Turkey falls within

category V. The Working Group refers this case to the Special Rapporteur on the promotion

and protection of human rights and fundamental freedoms while countering terrorism.

108.

The Working Group considers that the Government of Turkey is responsible for the

abduction and detention of Mr. Duman and Mr. Tibik in Malaysia, and for their forcible

transfer from Malaysia to Turkey, which resulted from an agreement by the Malaysian

authorities to surrender them to Turkey.43

c.

Concluding remarks

109.

The source alleges that Mr. Duman is being held in solitary confinement. Mr. Duman

suffers from malnutrition and his psychological health has deteriorated significantly.

110.

Solitary confinement must only be used in exceptional cases as a last resort, for as

short a time as possible, subject to independent review and authorized by a competent

authority.44 Prisoners are entitled to appropriate health care and food of nutritional value

adequate for health and strength.45 It appears that those requirements are not being met. The

Working Group urges the Government of Turkey to immediately and unconditionally release

Mr. Duman and Mr. Tibik and ensure that they receive the necessary medical care.

Disposition

111.

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

Regarding Malaysia

The deprivation of liberty of Alettin Duman and Tamer Tibik, being in contravention

of articles 2, 3, 6, 7, 8, 9, 10, 11 (1) and 19 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 Alettin Duman and Tamer Tibik, being in contravention

of articles 2, 3, 6, 7, 8, 9, 10, 11 (1) and 19 of the Universal Declaration of Human

Rights and articles 2 (1), 2 (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.

112.

The Working Group requests the Governments to remedy the situation of Mr. Duman

and Mr. Tibik without delay and bring it into conformity with the relevant international

norms, including the Universal Declaration of Human Rights and the International Covenant

on Civil and Political Rights. The Working Group urges Malaysia to accede to the Covenant.

113.

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 immediately and unconditionally release Mr.

Duman and Mr. Tibik;

(b)

For the Governments of Malaysia and Turkey to accord Mr. Duman and Mr.

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

international law, 46 including for the impact on their psychological integrity of being

abducted and forcibly transferred to Turkey.

114.

The Working Group urges both Governments to ensure a full and independent

investigation of the circumstances surrounding the arbitrary detention of Mr. Duman and Mr.

Tibik, and to take appropriate measures against those responsible for the violation of their

rights.

43 Opinion No. 84/2020, para. 72.

44 The Nelson Mandela Rules, rule 45 (1); and Opinion No. 52/2018, para. 79 (d).

45 The Nelson Mandela Rules, rules 22, 24−35.

46 A/HRC/45/16, annex I.

A/HRC/WGAD/2022/8

17

115.

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

this case to: (a) the Working Group on Enforced or Involuntary Disappearances; (b) the

Special Rapporteur on torture and other cruel, inhuman or degrading treatment or

punishment; (c) the Special Rapporteur on the promotion and protection of the right to

freedom of opinion and expression; (d) the Special Rapporteur on the independence of judges

and lawyers; and (e) the Special Rapporteur on the promotion and protection of human rights

and fundamental freedoms while countering terrorism.

116.

The Working Group requests both Governments to disseminate the present opinion

through all available means and as widely as possible.

Follow-up procedure

117.

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

the source and both Governments to provide it with information on action taken in follow-up

to the recommendations made in the present opinion, including:

(a)

Whether Mr. Duman and Mr. Tibik have been unconditionally released and, if

so, on what date;

(b)

Whether compensation or other reparations have been made to Mr. Duman and

Mr. Tibik;

(c)

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

Mr. Duman and Mr. Tibik 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.

118.

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.

119.

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.

120.

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.47

[Adopted on 30 March 2022]

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