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.24-21102 (E) 281124 291124
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its 100th session, 26–30 August 2024
Opinion No. 33/2024 concerning Akin Öztürk (Türkiye)
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 51/8.
2.
In accordance with its methods of work,1 on 20 February 2024 the Working Group
transmitted to the Government of Türkiye a communication concerning Akin Öztürk. The
Government submitted a late response on 23 May 2024. 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/2024/33
General Assembly
Distr.: General
29 November 2024
Original: English
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1.
Submissions
(a)
Communication from the source
(i)
Context
4.
Akin Öztürk, born on 21 February 1952, is a citizen of Türkiye. He usually resides in
Ankara.
5.
The source explains that between 2013 and 2015, Mr. Öztürk served as the
Commander of the Turkish Air Force. In 2015 he was appointed as a member of the
High Military Consultative Council, and on 15 July 2016 he was the most senior military
personnel member in the Turkish Air Force. The source specifies, however, that after handing
over the commandership of the Turkish Air Force, Mr. Öztürk was not in command of any
personnel, apart from his military aides, nor was he responsible for carrying out any duties.
It is noted that he was only required to attend the meetings of the High Military Consultative
Council. Mr. Öztürk was therefore in a semi-retired position.
6.
The source reports that between 1 and 20 July 2016, Mr. Öztürk was on his annual
leave, which had been scheduled months before. Until 15 July 2016, he spent his holiday in
the military summer holiday facility in Izmir. During his holiday, he left the facilities only to
see his family. There is no allegation that he had any communication with anyone alleged to
have been involved in the coup attempt of 15 July 2016.
7.
At midday of 15 July 2016, Mr. Öztürk returned to Ankara, as his wife had some
health issues. After landing in Ankara, he went with his wife to the house of a close family
member and decided to remain there overnight, as they had done numerous times before.
8.
At 9.32 p.m. on 15 July 2016, Mr. Öztürk was informed by one of his military aides
that there had been an attack on the General Staff. He then attempted to gather more
information from the Air Force operations centre and from other high-ranking officers. After
11 p.m., Mr. Öztürk succeeded in speaking with the Commander of the Turkish Air Force,
who requested him to go to Akinci Air Base to bring the situation under control.
9.
Having promptly arrived at Akinci Air Base, Mr. Öztürk was surrounded by masked
military personnel who accompanied him to the office of the commander of the base. Once
there, the Chief of General Staff of the Turkish Armed Forces requested Mr. Öztürk to
convince some high-ranking military personnel, also present in the office, to stop the coup
attempt.
10.
Thereafter until the morning, Mr. Öztürk went back and forth three or four times
between the base headquarters and the location of the individuals involved in the coup in
Squadron 143 in order to convince them to stop the coup attempt in accordance with the
orders of the Chief of General Staff.
11.
At around 6 a.m. on the following day, 16 July 2016, with these individuals starting
to be convinced to stop the coup, Mr. Öztürk returned to the base headquarters and gave an
update on the situation to the Chief of General Staff. Initially, the Chief of General Staff
suggested going with Mr. Öztürk to see the Prime Minister. However, having consulted with
other authorities, he suddenly changed his mind and told Mr. Öztürk to stay at Akinci Air
Base. Mr. Öztürk was thus asked to control the military personnel who attempted the coup
and was informed that he would be picked up in an hour.
12.
The source notes that the pick-up did not take place. Mr. Öztürk decided to go to the
Office of the Prime Minister himself by helicopter. However, the helicopter that he took was
shot at and Mr. Öztürk sustained a minor injury in his left leg.
13.
Mr. Öztürk returned to Akinci Air Base and found out that some high-ranking officers
were being held hostage. In the early hours of the morning of 16 July 2016, he located and
freed several high-ranking military officers.
14.
The source reports that it was approximately at that time that the State media started
a campaign against Mr. Öztürk, labelling him as the leader of the coup attempt who was to
be tried for treason.
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15.
At approximately 11 a.m., Mr. Öztürk and other high-ranking military officers left
Akinci Air Base under police protection. This is noted in the official report, which states that
Mr. Öztürk was among the hostages who were rescued from the instigators of the coup
attempt. The source adds that efforts by Mr. Öztürk to subdue the coup attempt were
acknowledged in the press releases of both the General Staff and the Turkish Air Force as
well as in the official follow-up reports.
16.
On the evening of 16 July 2016, Mr. Öztürk went to his house and spent the night at
his home with his family.
(ii)
Arrest and detention
17.
At approximately 2 a.m. on 17 July 2016, Mr. Öztürk received an invitation from the
Central Command to present a witness statement. No further explanation was given.
Mr. Öztürk therefore assumed that he was being summoned as a witness. However, once
Mr. Öztürk arrived at the Central Command Station, he was immediately detained and placed
in police custody. The officials of the Ankara Central Command Forces who carried out the
arrest did not present a warrant or other decision by a public authority.
18.
Mr. Öztürk was taken to a closed gym at the Counter-Terror Branch of the Ankara
Security Department, in which approximately 500 individuals were being held as arrestees.
Upon his arrest, Mr. Öztürk was subjected to ill-treatment and to various forms of torture
after being stripped naked. The police officers reportedly told Mr. Öztürk that they had
received specific orders to exercise “special care” on him.
19.
During the police custody, Mr. Öztürk was not allowed to put on his clothes, was
forced to squat or stay on his knees for prolonged periods of time, had acid poured on his
fingernails, was subjected to intense verbal assaults, and was severely beaten by police
officers and by other arrestees who were coerced by the police to do so. Mr. Öztürk was
furthermore deprived of food, kept in a permanently and heavily lit environment, and not
allowed to sleep or use the toilet when he needed to do so. He was denied proper medical
assistance and sanitation.
20.
On 17 and 18 July 2016, Mr. Öztürk was held by the Ankara Counter-Terror Branch
in the Doors sports facility. Neither during nor after the police custody was he allowed to talk
to his own legal representative. Instead, a Bar-appointed lawyer whom Mr. Öztürk had never
encountered before was assigned to him as his counsel. This lawyer, upon observing
Mr. Öztürk’s injuries, documented during his interrogation with the prosecutor that there
were clear signs of physical injuries on Mr. Öztürk.
21.
On 18 July 2016, the Ankara Public Prosecutor filed an official request for Mr. Öztürk
to be placed in pretrial detention. In this respect, the prosecutor has stated that in the context
of the incidents that took place on the night of the coup attempt, some evidence was found
demonstrating that the suspect contributed to the criminal acts. For this reason, it was
requested that the suspect be placed in pretrial detention in connection with concrete evidence
showing strong suspicion of crime committed by the suspect, and the possibility of
absconding and of tampering with the evidence, under article 100 (3) (a) 2–11 of the Code
of Criminal Procedure.
22.
The prosecutor has omitted to specify the nature and content of the evidence referred
to in the request.
23.
On the same day, 18 July 2016, the Ankara Fifth Criminal Magistrates’ Court ordered
Mr. Öztürk to be placed in pretrial detention. The judge stated that considering the concrete
evidence showing the existence of strong suspicions that the suspect committed the crimes
of attempting to oust the Government (art. 312 of the Criminal Code) and attempting to
overthrow the constitutional order (art. 309 of the Criminal Code), that the suspect had the
possibility of absconding and tampering with evidence, that there were still suspicions that
the suspect would attempt to make the coup succeed, that the offence that the suspect was
charged with and the detention measure were proportionate, and that the alleged crime was
listed in article 100 (3) of the Code of Criminal Procedure, it was decided that the suspect
was to be placed in pretrial detention in accordance with article 100 of the Code of Criminal
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Procedure. After 18 July 2016, Mr. Öztürk’s detention was extended monthly by the Ankara
criminal magistrates’ judgeships.
24.
The source notes that the judge at the Ankara Fifth Criminal Magistrates’ Court also
did not mention what the concrete evidence was that could have justified Mr. Öztürk’s
placement in pretrial detention. On 21 July 2016, three days after he was placed in pretrial
detention, the General Staff issued a press release stating that Mr. Öztürk had gone to Akinci
Air Base on the night of the coup attempt on the orders of the Commander of the Turkish Air
Force to stop the coup.
25.
On 18 July 2016, Mr. Öztürk was transferred to Ankara Sincan F2-Type High Security
Prison, where he was held in strict isolation for 10 months and 8 days, until 26 May 2017.
On 6 June 2017, the Prison Administration reportedly categorized Mr. Öztürk as a dangerous
detainee. Consequently, he was deprived of the ability to watch television or buy a radio and
his access to the small outdoor yard attached to his cell, where he is kept alone, was reduced
to one hour a day. The source notes that this has aggravated Mr. Öztürk’s solitary
confinement.
26.
The source recalls that in a medical assessment report by the Human Rights
Foundation of Türkiye, Mr. Öztürk’s detention conditions were assessed as constituting
torture, cruel and inhuman treatment. According to the report, these conditions have had a
detrimental impact on Mr. Öztürk’s health.
27.
On 31 March 2017, an indictment was prepared by the Office of the Ankara
Prosecutor against Mr. Öztürk and 431 other defendants. The indictment was accepted by the
Ankara Fourth Assize Court. Mr. Öztürk’s case was later merged with case 2017/109 before
the Ankara Seventeenth Assize Court, in which 224 defendants, including high-ranking
officers, were tried under allegations of having orchestrated the coup attempt of 15 July 2016.
In the indictment, Mr. Öztürk was accused of being the leader of the coup attempt. After
Mr. Öztürk’s indictment was filed and accepted by the Assize Court, his detention was
extended monthly by his trial court – the Ankara Seventeenth Assize Court.
28.
During the trial phase, Mr. Öztürk faced several implausible allegations, such as
having made statements about a coup attempt in a town he had never visited. In his statements
defending himself during the hearings, Mr. Öztürk refuted all the allegations. The source
concludes that there is no reasonable suspicion to justify the deprivation of Mr. Öztürk’s
liberty, neither at the time of the initial arrest, nor during the initial pretrial detention nor
during the extension of his detention.
29.
At the end of the trial at the Ankara Seventeenth Assize Court, on 20 June 2019,
Mr. Öztürk was sentenced on 141 counts to aggravated life imprisonment as well as to
thousands of years of prison time on accusations of being the leader of the coup attempt of
15 July 2016. In addition, the Ankara Seventeenth Assize Court decided to extend the
detention of Mr. Öztürk.
30.
The source submits that judges of the Ankara Seventeenth Assize Court, who ordered
the extension of Mr. Öztürk’s detention, conducted the trial in a manner inconsistent with the
principles of an independent and impartial court. It argues that occurrences outlined below
illustrate how the Ankara Seventeenth Assize Court acted in deliberate denial of justice,
making effective review of his detention impossible.
31.
In this regard, the source notes that the reasoned decision of the Ankara Seventeenth
Assize Court ordering the continuation of Mr. Öztürk’s deprivation of liberty only quotes
parts of the opening statements of the defendants, including Mr. Öztürk, but entirely
disregards remaining elements of the defence, such as their defence on the merits, which is
more detailed and bears more importance than the opening statements.
32.
Moreover, when the hearing commenced, Mr. Öztürk, along with all the other
defendants, was compelled to defend himself and provide his initial statements – the only
ones referenced in the reasoned decision – without being permitted to review and examine
the attachments to the indictment.
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33.
The reasoned decision cites all the arguments of the prosecution, but does not mention
the statements of the lawyers of the defendants, including the defence statements presented
by the lawyer of Mr. Öztürk.
34.
The decision reportedly contains no individualized reasoning in relation to
Mr. Öztürk, and neither in relation to the other 200 defendants also sentenced to life
imprisonment. Most defendants were convicted using identical wording.
35.
Furthermore, the reasoned decision is reportedly a duplicate of the indictment. The
source submits that even the grammatical and punctuation errors are identical to those found
in the indictment, indicating that the text was copied and pasted.
36.
In the reasoned decision, relevant developments that occurred during the hearing are
entirely disregarded. For example, the Ankara Seventeenth Assize Court composed the
reasoned decision as if the statements obtained from the defendants and witnesses did not
exist.
37.
Moreover, in the hearings, at least 151 out of 226 defendants stated that they had
received some form of ill-treatment, ranging from bad custody and prison conditions to
electrocution and severe beatings. They were allegedly subjected to this mistreatment before,
during and after their statements had been taken.
38.
The source submits that the judges of the Ankara Seventeenth Assize Court have
continuously questioned hundreds of suspects on the basis of statements obtained through
torture. Moreover, they have also failed to inform and refused to inform the relevant
authorities about the defendants’ repeated complaints of torture. The sitting judges have an
obligation to promptly inform the Office of the Prosecutor as soon as they are made aware of
acts of torture, as stipulated in article 158/2 of the Code of Criminal Procedure. Despite
having been informed about numerous incidents of torture, the trial judges have reportedly
failed to submit a single notification to the Office of the Prosecutor.
39.
Moreover, it is submitted that the trial court did not exclude statements and evidence
acquired through torture from the case file. Instead, the judges of the Ankara Seventeenth
Assize Court reportedly relied on these in the reasoned decision ordering Mr. Öztürk’s
deprivation of liberty to be extended.
40.
The source also reports that the judges sitting on the bench refused to collect any
evidence demanded by the defendants, including Mr. Öztürk, or any evidence that could have
supported statements of the defendants. However, all the requests of the prosecution and the
complainants were accepted.
41.
The judges sitting on the bench refused to hear accounts from witnesses whose
testimony reportedly was essential as regards allegations concerning the coup attempt of
15 July 2016.
42.
The presiding judges of the Ankara Seventeenth Assize Court precluded Mr. Öztürk,
his co-defendants, and all their legal representatives from participating in key witness
hearings and from conducting questioning of key witnesses. Crucial witnesses were heard in
private during a closed session without the presence of the defendants and their lawyers.
Consequently, the defendants, including Mr. Öztürk, were denied the opportunity to question
key witnesses.
43.
The unedited camera footage of the night of the coup attempt has reportedly never
been shared with the defendants, including Mr. Öztürk. Later, it was discovered that out of
319 hours of unedited camera footage, only 101 hours of edited camera footage were shared
with the defendants. Therefore, 70 per cent of the unedited CCTV camera footage has been
reportedly deleted and or has not been added to the case file. For this reason, the defendants
could not support their versions of the facts with this footage. The defendants have also been
unable to draw attention to alterations to the footage that were allegedly purposefully made
to incriminate them.
44.
It is reported that some defendants, using the material available in the case file,
acquired independent expert reports proving manipulations of the camera footage. However,
in the reasoned decision, the judges disregarded these reports. The source notes that the
experts who were appointed by the court to analyse the camera footage were army officials,
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which is strictly prohibited by the provisions of the Code of Criminal Procedure.
Furthermore, some of these court-appointed experts appear to also have been complainants
according to the case file.
45.
The source remarks that at the beginning of the trials, the defendants were lined up
outside the courtroom, and were escorted by gendarme commandos with automatic weapons.
Snipers were placed on the roof of the court building, and mini drones were filming the
defendants from above. In this setting, the defendants were made to walk for more than 100
metres in front of an organized angry crowd shouting words of hate and calls for the death
penalty at the defendants and throwing execution ropes towards them. Mr. Öztürk,
handcuffed, was always forced to walk at the front. This procession, described by the source
as the staged walk of shame, was reportedly aired live by the State media outlets.
46.
It is noted that during the hearing, the audience constantly insulted the defendants,
particularly the high-ranking ones, including Mr. Öztürk. However, no member of the
audience was subjected to any kind of disciplinary proceedings for their actions in the
courtroom.
47.
The Head Judge of the Ankara Seventeenth Assize Court was the same judge who
decided to initially arrest some of the defendants. Numerous objections concerning the
independence and impartiality of the judges were reportedly filed during the trial
proceedings. However, the judges reportedly failed to make any decision on these.
48.
Moreover, the Head Judge of the Ankara Seventeenth Assize Court, who sentenced
Mr. Öztürk on 141 counts to aggravated life imprisonment, reportedly participated in a
workshop arranged by the Police Academy as an activity of the executive branch of
government in October 2017, contrary to the Bangalore Principles of Judicial Conduct. At
the end of the workshop, contrary to the basic principles of international law, the International
Covenant on Civil and Political Rights, the Convention for the Protection of Human Rights
and Fundamental Freedoms (European Convention on Human Rights) and the Constitution,
he reportedly endorsed without reservations the statement that there would be no need to
provide concrete evidence while fighting with the Gülen group and if there was even the
slightest suspicion, the State had to benefit from it.
49.
According to the source, immediately after delivering his decision in the case of
Mr. Öztürk, the Head Judge of the Ankara Seventeenth Assize Court was promoted and
assigned as a judge at the Court of Cassation, the highest court in Türkiye. Between 2017 and
2019, this member of the judiciary also reportedly adjudicated several other similarly
controversial cases concerning the coup attempt.
50.
Finally, the source notes that Mr. Öztürk has been held criminally liable for the death
of 140 individuals. However, no autopsy or ballistic examinations were carried out following
the deaths of these individuals, notes the source. To date, no information has been available
as to which individuals were killed by which weapons and by whom.
51.
Mr. Öztürk appealed his sentence to the Twenty-first Criminal Division of Ankara
Regional Court, and on 13 October 2020 the same court extended Mr. Öztürk’s detention.
Mr. Öztürk has appealed against that decision to the Court of Cassation. He remains in
detention as his appeal is currently pending before the Court of Cassation.
(iii)
Analysis of violations
52.
The source submits that the deprivation of liberty of Mr. Öztürk is arbitrary and falls
under categories I, III and V of the Working Group.
a.
Category I
53.
In relation to category I, the source argues that at the time Mr. Öztürk was taken into
police custody, there existed no reasonable suspicion that could lead an objective observer to
think that Mr. Öztürk was somehow involved in, let alone lead, the coup attempt. At the time
he was taken into police custody, there was no one, neither a witness nor a defendant, alleging
or stating that Mr. Öztürk was involved in the coup attempt. There was also no camera
footage that showed any criminal activity by Mr. Öztürk.
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54.
Moreover, the source recalls that the initial decision to place Mr. Öztürk in pretrial
detention was taken on 18 July 2016, two days after he was taken into police custody. During
those two days, no evidence incriminating Mr. Öztürk was obtained. For that reason, at the
time of the initial decision to place him in pretrial detention, there existed no reasonable
suspicion, and hence Mr. Öztürk’s deprivation of liberty has no basis in law.
55.
Furthermore, three days after Mr. Öztürk was placed in pretrial detention, on
21 July 2016, the General Staff issued a press release explaining Mr. Öztürk’s efforts to
subdue the coup attempt. However, the source submits that this press release was removed
from the Internet shortly after. Although one defendant made a statement relating to
Mr. Öztürk, that statement did not refer to any pertinent criminal act by Mr. Öztürk.
Furthermore, that defendant retracted his statement once the hearing had started, also giving
a detailed account that the statement had been prepared by the police, that he had signed it
without reading it and that he had been subjected to torture prior to making the statement.
Hence, even during the hearings there existed no incriminating evidence against Mr. Öztürk.
For that reason, Mr. Öztürk’s pretrial detention continued to have no basis in law.
56.
In the decision by the Ankara Seventeenth Assize Court to convict Mr. Öztürk, his
detention was again extended. There is no evidence in the case file justifying the deprivation
of liberty of Mr. Öztürk. Mr. Öztürk’s deprivation of liberty after his conviction also had no
basis in the law.
57.
On 13 October 2020, the Twenty-first Criminal Division of Ankara Regional Court,
under case No. 2020/1, extended the detention of Mr. Öztürk with a standard decision. In this
case, there was and still is no evidence in the case file justifying the order to continue
Mr. Öztürk’s deprivation of liberty.
b.
Category III
58.
In relation to category III, the source recalls its arguments relating to the manner in
which the trial has been conducted and the alleged lack of impartiality of the judicial hearings.
The source concludes that the above-mentioned circumstances demonstrate that international
norms relating to the right to a fair trial have been entirely disregarded and that Mr. Öztürk
has been deprived of an opportunity to challenge his detention effectively.
c.
Category V
59.
Finally, in relation to category V, the source submits that Mr. Öztürk has been
deprived of his liberty for reasons of discrimination based on his political and other opinions.
It argues that Mr. Öztürk, together with other officials, was targeted because he opposed
certain types of operations.
60.
According to the source, there was and is no reasonable suspicion that might lead an
objective observer to conclude that Mr. Öztürk has committed the alleged crime of leading
the coup attempt. Nevertheless, he has been deprived of his liberty and held in solitary
confinement for over seven years.
61.
The source recalls the targeted campaign against Mr. Öztürk immediately following
the coup attempt. According to the source, the security forces, the prosecution and judges
undertook significant efforts to incriminate Mr. Öztürk and incarcerate him, in the absence
of any concrete evidence.
62.
The source argues that these facts underscore that the deprivation of liberty of
Mr. Öztürk is politically motivated. These include severe and unusual torture inflicted upon
Mr. Öztürk, with officers emphasizing “special care” for him; the ill-treatment or torture of
other suspects to incriminate Mr. Öztürk; indefinite and continued solitary confinement
without tangible or plausible legitimate grounds and despite the existence of a medical
evaluation report affirming that Mr. Öztürk can no longer be expected to endure the isolation;
the removal of evidence demonstrating Mr. Öztürk’s innocence from the Internet; disregard
by the prosecution and courts of numerous statements proving that Mr. Öztürk attempted to
subdue the coup; and false and systematic media reports portraying Mr. Öztürk as the coup
leader even hours before his arrest.
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63.
The source submits that domestic courts have, up until the present moment, failed to
establish an effective domestic remedy. It further submits that the Constitutional Court also
proves to be an ineffective domestic remedy with regard to individual applications
concerning the detention of Mr. Öztürk and other high-ranking officers. It is recalled that
despite numerous applications, the Constitutional Court has not ruled on a violation of the
right to freedom and security with regard to any officer detained as a result of allegations of
having participated in the coup attempt. The Constitutional Court has reportedly rejected all
these applications by means of standardized inadmissibility decisions.
(b)
Response from the Government
64.
On 20 February 2024, 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 20 April 2024, detailed information about the
current situation of Mr. Öztürk and to clarify the legal provisions justifying his continued
detention, as well as its compatibility with the obligations of Türkiye under international
human rights law, and in particular with regard to the treaties ratified by the State. Moreover,
the Working Group called upon the Government of Türkiye to ensure Mr. Öztürk’s physical
and mental integrity.
65.
On 11 April 2024, the Government requested an extension of the time limit, in
accordance with paragraph 16 of the Working Group’s methods of work, and was granted a
new deadline of 20 May 2024.
66.
The Government submitted its response on 23 May 2024, which was after the
deadline. Consequently, the Working Group cannot treat the reply as if it had been presented
in accordance with the Working Group’s methods of work.
2.
Discussion
67.
In the absence of a timely response from the Government, the Working Group has
decided to render the present opinion, in conformity with paragraph 15 of its methods of
work.
68.
In determining whether the deprivation of liberty of Mr. Öztürk is arbitrary, the
Working Group has regard to the principles established in its jurisprudence to deal with
evidentiary issues. If the source has presented a prima facie case for breach of international
law constituting arbitrary detention, the burden of proof should be understood to rest upon
the Government if it wishes to refute the allegations. Mere assertions by the Government that
lawful procedures have been followed are not sufficient to rebut the source’s allegations.2 In
the present case, the Government has chosen not to challenge the prima facie credible
allegations made by the source within the prescribed time limit.
69.
As a preliminary matter, the Working Group notes that Mr. Öztürk’s situation falls
partially within the scope of the derogations that Türkiye made under the Covenant. On
21 July 2016, the Government of Türkiye informed the Secretary-General that it had declared
a state of emergency for three months in response to severe dangers to public security and
order, which amounted to a threat to the life of the nation within the meaning of article 4 of
the Covenant.3
70.
While acknowledging the notification concerning the derogations, the Working Group
emphasizes that, in the discharge of its mandate, it is empowered under paragraph 7 of its
methods of work to refer to the relevant international standards set forth in the Universal
Declaration of Human Rights and to customary international law. Moreover, in the present
case, articles 9 and 14 of the Covenant are the provisions that are relevant to the alleged
arbitrary detention of Mr. Öztürk. As the Human Rights Committee has stated, States parties
derogating from articles 9 and 14 must ensure that such derogations do not exceed those
2 A/HRC/19/57, para. 68.
3 C.N.580.2016.TREATIES-IV.4 (depositary notification).
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strictly required by the exigencies of the actual situation.4 The Working Group reaffirms its
welcoming of the lifting of the state of emergency on 19 July 2018 and the subsequent
revocation of derogations by Türkiye.
71.
Furthermore, the Working Group, addressing the Government’s request to special
procedures not to allow the Fethullahist terrorist organization and its members to abuse those
mechanisms, and to dismiss their allegations, wishes to recall that the Human Rights Council
has mandated it to receive and consider allegations of arbitrary detention from anyone around
the world. The Working Group thus makes no distinction as to who can or cannot bring an
allegation to its attention. The Working Group is also required to act impartially and
independently. It therefore treats all submissions made to it equally and accepts them as
allegations, inviting the Government concerned to respond. The onus is therefore on the
Government to engage with the Working Group constructively by addressing the specific
allegations made to assist the Working Group in reaching a conclusion in each
communication brought to its attention.
72.
The source has argued that Mr. Öztürk’s detention is arbitrary and falls under
categories I, III and V of the Working Group. In its late reply, the Government denies all the
allegations and submits that the arrest and detention of Mr. Öztürk were carried out in
accordance with all international human rights obligations assumed by Türkiye. The Working
Group will proceed to examine the submissions under each of the categories in turn.
(a)
Category I
73.
According to the information provided by the source, during the arrest Mr. Öztürk
was not informed about the reasons for his arrest, nor did the authorities present an arrest or
search warrant.
74.
The Working Group recalls that article 9 (2) of the Covenant provides that anyone
who is arrested is to be informed, at the time of arrest, of the reasons for the arrest and is to
be promptly informed of any charges. The Working Group has previously stated that in order
for a deprivation of liberty to have a legal basis, it is not sufficient that there is a law which
may authorize the arrest. The authorities must invoke that legal basis and apply it to the
circumstances of the case.5 This is typically done through an arrest warrant or arrest order (or
equivalent document).6 The reasons for the arrest must be provided immediately upon arrest
and must include not only the general legal basis of the arrest, but also enough factual
specifics to indicate the substance of the complaint, such as the wrongful act and the identity
of an alleged victim.7
75.
In its late response, the Government did not attempt to explain how Mr. Öztürk’s arrest
without a warrant was strictly required by the exigencies of the security situation, other than
asserting that Mr. Öztürk was behind the creation of the said security situation. The Working
Group thus notes that Mr. Öztürk was not arrested in flagrante delicto, when the opportunity
to obtain a warrant would typically not be available; at the moment of his arrest on
17 July 2016 he had returned to his home after attempting to prevent the coup, and there is
no indication that he engaged in any criminal activity between the time he left Akinci Air
Base and when he was summoned to provide testimony. The Working Group is not convinced
by the Government’s assertion that the state of emergency creates specific exigencies
pertinent enough to justify such an arrest.
4 See the Committee’s general comment No. 29 (2001) on derogations from provisions of the Covenant
during a state of emergency, para. 4. See also the Committee’s general comment No. 32 (2007) on the
right to equality before courts and tribunals and to a fair trial, para. 6; general comment No. 34 (2011)
on the freedoms of opinion and expression, para. 5; general comment No. 35 (2014) on liberty and
security of person, paras. 65 and 66; and Özçelik et al v. Turkey (CCPR/C/125/D/2980/2017),
para. 8.8.
5 Human Rights Committee, general comment No. 35 (2014), para. 23. See also opinions No. 9/2019,
para. 29; No. 46/2019, para. 51; and No. 59/2019, para. 46; and art. 14 (1) of the Arab Charter on Human
Rights.
6 Opinions No. 88/2017, para. 27; No. 3/2018, para. 43; and No. 30/2018, para. 39.
7 Human Rights Committee, general comment No. 35 (2014), para. 25; opinion No. 30/2017, paras. 58
and 59; and opinion No. 85/2021, para. 69.
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GE.24-21102
76.
The Working Group therefore concludes that Mr. Öztürk’s arrest and subsequent
detention were arbitrary under category I. The finding is not altered by the derogation
discussed above. The Working Group considers that the guarantees of the right to liberty and
security would be meaningless if it were accepted that people could be arrested and placed
in pretrial detention without any respect for the procedure established by law.
(b)
Category III
77.
The source alleged that violations against Mr. Öztürk’s right to due process under
articles 9 and 10 of the Universal Declaration of Human Rights and articles 9 and 13 of the
Covenant amounted to an arbitrary deprivation of liberty that qualified under category III.
78.
As regards the guarantee of being tried within a reasonable time frame, the Working
Group considers that the period of two years and 11 months between Mr. Öztürk’s arrest and
his subsequent conviction is not excessive given the complexity of the case and the volume
of the case file and the judgment. Therefore, it cannot find a breach of article 14 (3) (c) of the
Covenant in that respect.
79.
However, with respect to Mr. Öztürk’s solitary confinement, the Working Group
recalls that the Special Rapporteur on torture and other cruel, inhuman or degrading treatment
or punishment has deemed that prolonged solitary confinement in excess of 15 days, whereby
some of the harmful psychological effects of isolation can become irreversible,8 may amount
to torture. Rule 44 of the United Nations Standard Minimum Rules for the Treatment of
Prisoners (the Nelson Mandela Rules) likewise refers to solitary confinement for a time
period in excess of 15 consecutive days as prolonged solitary confinement.
80.
The Working Group notes the Government’s reference to European Court of Human
Rights case law. Firstly, it notes that while the Working Group respects the relevance of
European Court of Human Rights jurisprudence, it is governed by its own jurisdiction and
principles, which compel a distinct and careful examination of the facts at hand. Nonetheless,
it is important to emphasize that this case stands apart. While the cases cited may address
solitary confinement under certain conditions, the present situation involves prolonged
isolation in conditions similar to those in the Court’s very recent case of Schmidt and Šmigol
v. Estonia, where a strong concern about the extended use of solitary confinement,
particularly when not justified by compelling and exceptional circumstances, was expressed.
Here, the cumulative effects of such prolonged isolation, coupled with inadequate social
interaction and psychological support, subject the individual to distress that surpasses the
unavoidable suffering inherent in detention.
81.
The source further alleges that Mr. Öztürk, like many political prisoners, has been
denied access to his case file and was therefore unable to prepare his defence adequately or
to disprove the charges against him, in violation of the principle of equality of arms. He was
not allowed access to a lawyer of his choice and instead was given a court-appointed lawyer
whom he had never met. According to the source, in the past few years, almost every
individual charged in a case with a political or public dimension has been automatically
denied access to the case file on the grounds of article 153 of the Criminal Procedure Act.9
This limitation was not sufficiently explained by the Government.
82.
Furthermore, the source alleges that Mr. Öztürk’s right to access counsel was violated,
as the relevant legislation stipulated that detainees would be denied access to lawyers for the
first five days. According to principle 2 of the Basic Principles on the Role of Lawyers, the
detainee should have access to an effective counsel at the earliest appropriate time. The
Working Group considers that this principle is fundamentally related to the principle of
equality of arms, as enshrined in article 2 of the Universal Declaration of Human Rights.
Additionally, the Working Group recalls that article 14 (3) (b) of the Covenant guarantees
the right of all persons charged with a criminal offence to have adequate time and facilities
for the preparation of their defence and to communicate with counsel of their own choosing.
8 A/63/175, para. 56; and A/66/268, para. 61.
9 Opinion No. 3/2023, para. 39.
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11
In the present case, the Working Group finds that Mr. Öztürk’s right to legal counsel at a
critical stage of the criminal proceedings was violated.
83.
Finally, the Working Group is seriously concerned that the Government, in its late
reply, has not disproved the source’s allegations regarding the use of witness statements
obtained under duress in Mr. Öztürk’s conviction. The admission of evidence obtained
through torture or ill-treatment is fundamentally incompatible with the core principles of a
fair trial. Such a practice would not only violate legal and moral standards but would also
undermine the credibility and reliability of the entire judicial process. Allowing such
evidence in a criminal trial would represent a grave miscarriage of justice. Importantly, these
principles apply not only when the defendant is the victim of ill-treatment but also when third
parties are affected, ensuring that the integrity of justice is upheld in all cases.
84.
Accordingly, the Working Group finds that the violations of Mr. Öztürk’s right to due
process were of such gravity as to give his detention an arbitrary character. His deprivation
of liberty is thus arbitrary under category III.
(c)
Category V
85.
The source submits that the present case joins a series of cases concerning individuals
with alleged links to the Gülen movement that has come before the Working Group in the
past few years, and invites the Working Group to conclude that the case belongs to the same
pattern whereby those with alleged links to the movement are being targeted on the basis of
their political or other opinion, in violation of articles 2 and 7 of the Universal Declaration
of Human Rights and articles 2 (1) and 26 of the Covenant. However, in the present case,
having regard to the materials available, the Working Group is unable to conclude that
Mr. Öztürk’s detention was arbitrary under category V.
(d)
Concluding remarks
86.
The Working Group notes the unrebutted allegations by the source concerning the
state of Mr. Öztürk’s health. The Working Group takes this opportunity to remind the
Government of its obligation under article 10 (1) of the Covenant to ensure that all persons
deprived of their liberty are treated with humanity and with respect for the inherent dignity
of the human person.10 In accordance with article 22 (a) of its methods of work, the Working
Group invokes the “urgent action” procedure due to the dire state of Mr. Öztürk’s health.
87.
In the past seven years, the Working Group has noted a significant increase in the
number of cases brought to it concerning arbitrary detention in Türkiye.11 It expresses grave
concern about the pattern that all these cases follow and recalls that, under certain
circumstances, widespread or systematic imprisonment or other severe deprivation of liberty
in violation of fundamental rules of international law may constitute crimes against
humanity.12
88.
The Working Group once again reiterates that it would welcome the opportunity to
conduct a country visit to Türkiye. Given that a significant period has passed since its last
visit to Türkiye, in October 2006, and noting the standing invitation by Türkiye to all special
procedures, the Working Group considers that it is an appropriate time to conduct another
visit in accordance with its methods of work.
10 See, for example, opinions No. 46/2020, para. 64; and No. 66/2020, para. 66.
11 See, for example, opinions No. 1/2017, No. 38/2017, No. 41/2017, No. 11/2018, No. 42/2018,
No. 43/2018, No. 44/2018, No. 78/2018, No. 84/2018, No. 10/2019, No. 53/2019, No. 79/2019,
No. 2/2020, No. 29/2020, No. 30/2020, No. 47/2020, No. 51/2020, No. 66/2020, No. 74/2020,
No. 8/2022, No. 3/2023 and No. 29/2023.
12 See, for example, opinion No. 47/2012, para. 22.
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3.
Disposition
89.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Akin Öztürk, being in contravention of articles 9 and 10
of the Universal Declaration of Human Rights and articles 9 and 14 of the
International Covenant on Civil and Political Rights, is arbitrary and falls within
categories I and III.
90.
The Working Group requests the Government of Türkiye to take the steps necessary
to remedy the situation of Mr. Öztürk 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.
91.
The Working Group considers that, considering all the circumstances of the case, the
appropriate remedy would be to release Mr. Öztürk immediately and accord him an
enforceable right to compensation and other reparations, in accordance with international
law.
92.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of
Mr. Öztürk and to take all appropriate measures against those responsible for the violation of
his rights.
93.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
4.
Follow-up procedure
94.
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. Öztürk has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Öztürk;
(c)
Whether an investigation has been conducted into the violation of Mr. Öztürk’s
rights and, if so, the outcome of the investigation;
(d)
Whether any legislative amendments or changes in practice have been made to
harmonize the laws and practices of Türkiye with its international obligations in line with the
present opinion;
(e)
Whether Mr. Öztürk’s health status can be improved and be confirmed by
independent health experts;
(f)
Whether any other action has been taken to implement the present opinion.
95.
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.
96.
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
implanting its recommendation, as well as of any failure to take action.
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13
97.
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.13
[Adopted on 30 August 2024]
13 Human Rights Council resolution 51/8, paras. 6 and 9.