Human Rights Watch released its 2023 Human Rights Report. As it has been done for years, they wrote in the Report: “There are no victims in Turkey except those who have experienced political and ethnic victimization”. Blindness based on the victim’s identity has been revealed again!

We know and see the political and ethnic grievances in Turkey. However, while two Kurdish citizens who were ill-treated in custody were mentioned by name, there is not a single line was explained about the thousands of members of the GÜLEN MOVEMENT who were killed in custody, exposed to naked search, harassment and rape in the Report..

This reveals how badly and biased HRW REPORT 2023 was prepared. At the same time, the report ignored the violation decisions made by both the ECtHR and the United Nations in the relevant year 2022.

Dear HRW Why did you ignore the decisions of the ECHR and the United Nations ?

Hundreds of people have been declared terror criminals in advance and their fundamental rights have been violated with the lists created within the scope of the Bylaw on the Reward to Be given to Those Who Help Uncover Terror Offences or Seize Evidence or Apprehend Perpetrators of Crimes, which entered into force after being published in the Official Gazette dated 05/11/2019 and numbered 30939. The unlawful aspects of the “List of Those Wanted for Terrorism” updated by the Ministry of Interior, such as that it violated the right to privacy, the right to a fair trial and, most importantly, the presumption of innocence; that it intimidated those who struggle for justice and aimed at preventing the crimes against humanity committed in Turkey from being announced to the entire world, were discussed in our previous article.[1]

In this context, a lawsuit was filed for the cancellation of some articles of the relevant bylaw due to the unlawfulness of the process of listing the name of lawyer Özgür Yılmaz, the absent defendant of the ÇHD case in which Selçuk Kozağaçlı, the President of the Contemporary Lawyers Association (ÇHD), is also a defendant. In the lawsuit, it was requested to annul the act of the inclusion of the plaintiff’s name on “the Orange List for Those Wanted for Terrorism”, and the Bylaw on the Reward to Be given to Those Who Help Uncover Terror Offences or Seize Evidence or Apprehend Perpetrators of Crimes, which is the basis of this act, first of all as whole due to lack of authority, otherwise, Articles 5, 6 and 8 of it and the Red, Blue Green, Orange and Grey Lists drawn up pursuant to these articles.

In the conclusion part of the opinion prepared by the Council of State Prosecutor within the scope of the lawsuit, “… In this case, there was no compliance with the law in the administrative action to draw up lists by ranking the importance of the crime or the offender by the Commission in order to catch the perpetrators of the wanted terrorism offences and to include the plaintiff in the Orange list prepared within this scope.

For the reasons explained, it is considered that the 2nd paragraph of Article 6 of the Regulation and the implementing act should be revoked, and the part of the case regarding Article 5, Article 6, paragraph 1, and Article 8 of the bylaw should be rejected.” Accordingly he requested the provision in the second paragraph of Article 6 to be revoked but rejected the request as regards some articles of the bylaw.

The opinion prepared by the Council of State prosecutor is incomplete and erroneous for the reasons explained below.

a. The Concept of “Terror Offender” in Article 6/1 of the Bylaw is Contrary to the Presumption of Innocence

 Although the Council of State Prosecutor has stated in his opinion that the request for the revocation of the part related to paragraph 1 of Article 6 of the Bylaw subject to the lawsuit should be rejected, this request and the explanations made regarding the concept of “terror offender” within the scope of this request are erroneous. Namely, in the first paragraph of Article 6 of the Bylaw titled “Announcement”, “(1) Information and photographs of terror offenders wanted with the promise of a reward, information deemed necessary regarding the crime to be clarified and the maximum reward amounts that can be given to those who help can be published in all kinds of communication tools and internet/digital media. The procedures for the publication and cancellation of the announcements shall be carried out in accordance with the procedure determined by the Reward Commission.” This provision is contrary to the presumption of innocence regulated in Article 38 of the Constitution and the Anti-Terror Law (TMK), particularly in terms of its content and scope.

As it is known, the presumption of innocence is a basic legal presumption stating that no one can be considered guilty unless it is certain that he/she has committed the offence. As an element of the right to a fair trial, the presumption of innocence is a principle enshrined in both the Constitution and the European Convention on Human Rights. In fact, the presumption of innocence is explicitly emphasised in the fourth paragraph of Article 38 of the Constitution titled “Principles concerning offences and punishments” which states that “No one shall be presumed guilty until his guilt has been established by a judgement.” and in the second paragraph of Article 6 of the ECHR which reads that “everyone accused of an offence shall be presumed innocent until his guilt has been legally established.”

The presumption of innocence enshrined in the Constiutution is also one of the sub-elements of the rule of law. This is because one of the requirements of the rule of law is to ensure the legal security of citizens and the necessary guarantees regarding offences and punishments.

This presumption is valid both at the investigation and prosecution stages, and administrative authorities must also act in accordance with this principle. In fact, in Allenet de Ribemont v. France,[2] the ECtHR held that the press conference organised by the Minister of Interior and a police officer involved in the investigation, after the implementation of the arrest measure against the applicant and before the opening of the criminal case, declaring the applicant guilty violated the presumption of innocence. Similarly, in Ürfi Çetinkaya v. Turkey,[3] the Court held that the presumption of innocence was violated by newspaper reports containing defamatory allegations against the applicant and portraying him as a drug trafficker. According to the case-law, the presumption of innocence obliges public officials not to treat individuals as guilty even before they have been found guilty by a court of law. This is also an obligation of the state towards its citizens.

Despite these clear requirements of the presumption of innocence, the first paragraph of Article 6 of the Bylaw lists and declares persons who do not have a final judgement of conviction as terror offenders. This listing and declaration process is carried out by an administrative board established by the Bylaw. The fact that a person is accused of terrorism or has an arrest warrant for this accusation does not directly make him/her a “terror offender”. Given that this is not the purpose of the Bylaw and that the ultimate purpose of Article 19 of the Anti-Terror Law, which constitutes the basis of the Bylaw, is not this, the provision of the Bylaw is contrary to the presumption of innocence.

On the other hand, this provision is also contrary to the Anti-Terror Law. The concept of “terror offender” is defined in Article 2 of the Anti-Terror Law, which reads as follows: “A terror offender is a person who is a member of an organisation formed to achieve the purposes set out in the first article and who commits a crime in pursuit of these purposes, either alone or together with others, or who is a member of the organisation even if he/she does not commit the intended crime. Those who commit crimes on behalf of a terrorist organisation, even if they are not members of the organisation, shall also be deemed to be terror offenders.“

When the provision in the article is evaluated together in the light of the presumption of innocence in paragraph 38/4 of the Constitution, for a person to be considered a terrorism offender, it must be established that he/she has “committed a crime” or “is a member of an organisation”. For a terror offender, the emphasis is placed on a certainty. This is only possible with a final judgement of conviction. The authority to decide on this is, of course, the impartial and independent courts. Therefore, it is not possible to recognise a person as a terror offender without a court decision.

Although the provision of the Anti-Terror Law to which the Bylaw refers directly explains the concept of “terror offender” in accordance with the presumption of innocence, Article 6 of the Bylaw, issued pursuant to Article 19 of this Law, titled “Announcement”, is clearly contrary to the presumption of innocence and the concept of “terror offender” in Article 2 of the Anti-Terror Law. This is because, according to the provision in the Bylaw and to the response of the Ministry of Interior to the lawsuit, it is possible to include persons who have not yet been sentenced to a final judgement in this list. It is seen that many people on the lists already prepared are included in the lists categorised by colour as “terror offenders” even though they do not yet have a final conviction. The Bylaw considers the search and arrest warrant issued against the person, not the finalised conviction, sufficient for the person to be included in these lists as a “terror offender”[4].

Therefore, the second paragraph of Article 6 of the Bylaw must be revoked due to the use of an authority not granted by the Law, and the first paragraph must be repealed as it is clearly contrary to Article 38/4 of the Constitution and Article 2 of the Anti-Terror Law.

b. Unlawfulness of the State Council Prosecutor’s Remarks on the Concept of “Terror Offender” in his Opinion

On the other hand, although this provision of the Bylaw is clearly contrary to the presumption of innocence and Article 2 of the Anti-Terror Law, the Council of State prosecutor stated in paragraph 11 of his opinion “… although it is stated that the information to be announced is the information belonging to the terror offender, although the offence will be finalised as a result of the trial, although the term perpetrator of the offence is not included, in view of the definition of terror offender in the Anti-Terror Law, it is concluded that the term terror offender is not an expression that cannot be used before the trial is held, but the provision brought in the second paragraph of the same article should be evaluated within the scope and purpose of the authority given by law…“.  

First, this statement is contrary to the presumption of innocence regulated in Article 38 of the Constitution and Article 2 of the Anti-Terror Law, as well as the established jurisprudence of Constitutional Court and the Court of Cassation on this issue. The title of terror offender is a position that can only be created after a trial is held and the convicting decision to be rendered at the end of the trial is finalised. Acceptance of the contrary, as explained above, contrary to the presumption of innocence, results in declaring a person guilty before his/her guilt is judicially established. At this point, the State Council prosecutor has made an interpretation contrary to the presumption of innocence by ignoring the existing case law of the Constitutional Court and the Court of Cassation regarding the concept of terror offender.

The Constitutional Court, in its decision on a complaint about the provision in the second paragraph of Article 2 of the Law No. 3713, which states that those who commit crimes on behalf of a terrorist organisation without being a member of that organisation shall be deemed to be terror offenders, has clearly defined what is meant by the concept of terror offender. The Court stated that “… According to the rule under review, a person being considered a terror offender depends, of course, on the determination by independent courts that he/she has committed a crime as a member of a terrorist organisation in line with the aim of the organisation or that he/she is a member of such an organisation. Such a characterisation is based on a conviction by the judicial organ. The person will be deemed a terror offender after his/her guilt in this field is determined…“, and it is emphasised that the person’s being deemed a terror offender depends on the determination by independent courts that he/she has committed a crime in line with the purpose of the organisation as a member of a terrorist organisation or that he/she is a member of such an organisation. [5] The Court repeated the same reasoning in the Hamit Yakut decision dated 10/6/2021.[6] The Court of Cassation also referred to this decision of the Constitutional Court in its judgement examining the concepts of “Terror” and “Terror Offender” and interpreted these concepts and their scope in line with the decision of the Supreme Court.[7]

As can be seen, as a requirement of the presumption of innocence, for a person to be accepted as a terror offender, there must first be a final conviction decision for an organisation crime. However, the prosecutor of the Council of State, with his opinion that “the term “terror offender” is not an expression that cannot be used before a trial is held”, has found the unlawful concept of “terror offender” set out in the first paragraph of Article 6 of the Bylaw to be legal despite the presumption of innocence and the jurisprudence of the high courts on this issue. This also means giving the administration the authority to determine “terror offenders” in the place of courts. In fact, many people who have been added to the list of those wanted for terrorism based on the unlawful article 6/1 of the Bylaw have been included in the “list of those wanted for terrorism” even though there is no finalised court decision against them and most of them have not even been prosecuted. Therefore, it is not only a criminal offence but also a clear violation of the presumption of innocence to share personal information and pictures of people who have not been subjected to a court decision and who are terror offenders. The provision of the Bylaw that leads to this result must, therefore, be revoked.

It is not possible to include these persons in the wanted list without a final conviction decision. As it has been emphasised before, the procedures and principles to be applied to suspects and defendants who cannot be reached or who are fugitives although their trial is ongoing are stipulated in Article 247 ff. of the Code of Criminal Procedure No. 5271. If it is assessed that the persons on the wanted list are fugitives, first, the procedural process in Article 247 ff. of the Criminal Procedure Code, which include provisions on “Trial of Fugitives”, must be followed.

However, considering that there are many people on the list for whom there is no final judgement of conviction, it is seen that the Ministry of Interior has declared hundreds of people as terror offenders with an administrative decision and procedure. The procedure is clearly unlawful in this respect as well. Moreover, the Bylaw does not authorise the Ministry to prepare lists and create categories. Accordingly, the opinion of the Council of State prosecutor is not appropriate, and the first paragraph of Article 6 of the Bylaw should also be repealed as it gives the administration the authority to determine “terror offenders”.

c. The phrase “their hierarchical position in the terrorist organisation and/or the gravity of the consequences of their actions” in Article 6/2 of the Bylaw is Contrary to the Presumption of Innocence

The rule in the second paragraph of Article 6 of the Bylaw which reads that “(2) Terrorism offenders wanted with the promise of a reward may be announced by the Reward Commission by grouping them according to their hierarchical position in the terrorist organisation and/or the gravity of the consequences of their actions, and by specifying the maximum amount of reward that can be given to those in each group” is also in breach of the presumption of innocence and the Anti-Terror Law. As stated in the explanations on the first paragraph, the authority to decide on the “hierarchical position of terrorism offenders within the organisation and/or the gravity of the consequences of their actions” are undoubtedly the courts and these matters can only be determined as a result of a trial. Pursuant to this paragraph, the Award Commission, which is an administrative authority, has been granted judicial power in violation of Article 9 of the Constitution.

Although the prosecutor at the Council of State expressed an opinion for the revocation of this paragraph, the points he put forward as justification are an explanation of why the first paragraph should also be cancelled. Because the prosecutor at the Council of State stated the following on the subject; “Considering once again that the purpose of the Bylaw is to regulate the amount, procedures and principles of the monetary reward to be given to those who help to uncover crimes falling within the scope of Law No. 3713, or to seize evidence, or to apprehend the perpetrators of crimes, or to those who report their whereabouts or identities, provided that they have not participated in their commission, the authority used by the commission in the second paragraph is an authority for the classification of terrorist crimes, evidence obtained or terrorist criminals. In other words, it is a power to make a rating of terror offenders according to their hierarchical position within the organisation and/or the gravity of the consequences of their actions. However, based on the purpose of the Bylaw, it is necessary to determine the amount of the reward to be given to those who help to uncover the crimes covered by the Law No. 3713 or to seize the evidence or to apprehend the perpetrators of the crimes, or to those who report their location or identity, and instead of determining the order of importance of the crime or the offender or the perpetrator with different lists, it is possible to determine an amount with an evaluation to be made according to the weight of the crime or the hierarchical status of the offender or the offence or the perpetrator or to the gravity of the act.

This Bylaw aims to regulate the procedures and principles of the reward, and it is seen that three criteria are taken as basis for the awarding of the reward: firstly, the discovery of the offence, secondly, the discovery of the evidence, and thirdly, the gravity of the offence in order to determine the amount of reward that can be given for those who help to catch the perpetrators of the offence, Although it is necessary to make an assessment to determine the amount of the reward according to the hierarchical position of the perpetrator within the terrorist organisation and the results of the act, it is not possible to use the authority granted to the Reward Commission to determine the amount of the reward to be given as an authority to make a list that results in the ranking of the importance of the wanted terror offenders. If it is necessary for the maintenance of the constitutional order to make such a list in terms of the wanted terror offender or perpetrator, it is beyond the authority granted to the Reward Commission to make such a list, which will determine the reward to be given to those who help uncover terrorist crimes, seize evidence, and capture the perpetrators of the crimes.

It was stated in the defence that the defendant administration decided to declare the plaintiff in the Orange colour category by the Award Commission according to their hierarchical/administrative position in the terrorist organisation and/or the severity of the consequences of their actions, and that the reports in the award request files prepared by the law enforcement unit were taken as basis, and the authority granted to the defendant administration covers the determination of the amount, procedures and principles of the award to be given to those who provide information to law enforcement units for the discovery of terrorist crimes or the seizure of evidence or the capture of perpetrators of crimes, or who report their location or identity. The provision includes how to decide on the reward, the conditions for granting the reward, the amount of the reward, the announcement of the maximum amount of the determined reward, the method of payment, the formation of the reward commission that will grant the reward, the confidentiality of the allowance and identities and information, and the issues regarding the capture of the perpetrator of the offence abroad.

Although, in the defence of the respondent administration; Although it is claimed that the procedure of informing the public by publishing lists of persons against whom there is a search / arrest warrant is not a situation specific to our country, the information and photographs of the international wanted persons in the INTERPOL “Wanted persons” section of the examples given, the information and photographs of the wanted persons in the “Europe’s Most Wanted Fugitives” list of “EUROPOL”, known as the European Police Organisation, which was established in order for the Police Organisations of the European Union member countries to cooperate, Although it is stated that the “Most Wanted” section of the US “FBI’s official website contains information and photographs of wanted persons and the amount of the reward, it is clear that all of the listings made are listings made by the Police Department or law enforcement agencies, and there is no mention of a listing made by the reward commission.

In this case, there was no compliance with the law in the administrative action for the Commission to create lists by ranking the importance of the offence or offender to catch the perpetrators of the wanted terrorism offences and to include the plaintiff in the orange list created within this scope.”

The Council of State prosecutor, while requesting the annulment of paragraph 2, has made a correct observation by stating that the Commission has no such authority. However, the basis for this determination is not that only the courts are the authority to decide on the “hierarchical position of terror offenders within the organisation and/or the gravity of the consequences of their actions”, but that Article 19 of the Anti-Terror Law, which is the basis of the Bylaw, does not authorise the Commission to regulate this issue in the Regulation. In fact, the Anti-Terror Law does not allow only the issue in paragraph 2, but also the declaration of persons as terror offenders without a finalised court decision in paragraph 1. For this reason, while it should and is expected that both paragraphs of Article 6 should be repealed, the opinion that only paragraph 2 should be revoked is erroneous and incomplete.

d. Lists are not prepared by the Award Commission

The issues included in the opinion of the Council of State prosecutor are evidence of how the lists are prepared and that the list of names created by law enforcement units, the publication of which is a criminal offence, is attempted to be legalised by this unlawful Bylaw provision. In its defence, the Ministry of Interior stated that it was decided by the Award Commission to declare the plaintiffs in the orange colour category according to their hierarchical/administrative position in the terrorist organisation and/or the severity of the consequences of their actions, and that the reports in the award request files prepared by the law enforcement units were taken as basis.

Even in this defence, it has been admitted that the Award Commission, which is entirely under the Ministry of Interior, has no authority, that the authority that makes terrorism accusations against persons against whom there is no final judicial decision, assigns positions within the hierarchical structure and determines the severity of the consequences of the actions of the persons is directly the Ministry, and therefore the authority that violates the Constitutional and legal rights of the persons concerned and commits a crime is also the Ministry. Furthermore, as stated by the State Council prosecutor, there is no precedent in the world for similar lists to be prepared by a commission like the Award Commission and, more importantly, to be announced on the internet.

[1] ON THE ILLEGALITY OF THE TERROR WANTED LIST PREPARED BY THE MINISTRY OF INTERIOR https://www.justicesquare.com/english/on-the-illegality-of-the-terror-wanted-list-prepared-by-the-ministry-of-interior/

[2] Application No: 15175/89, D.D.: 10/02/1995.

[3] Application No: 19866/04, D.D.: 23.03.2013.

[4] The summary of the reply of the respondent Ministry of Interior included in the Opinion of the Council of State Prosecutor is as follows “… Although, in the defence of the respondent administration; Although it is claimed that the procedure of informing the public by publishing lists of persons against whom there is a search / arrest warrant is not a situation specific to our country, the information and photographs of the international wanted persons in the INTERPOL “Wanted persons” section of the examples given, the information and photographs of the wanted persons in the “Europe’s Most Wanted Fugitives” list of “EUROPOL”, known as the European Police Organisation, which was established in order for the Police Organisations of the European Union member countries to cooperate, Although it is stated that the “Most Wanted” section of the US “FBI’s official website contains information and photographs of wanted persons and the amount of the reward, it is clear that all of the listings made are listings made by the Police Department or law enforcement agencies, and there is no mention of a listing made by the reward commission… “

[5] Constitutional Court, Docket No: 991/18, Decision No: 1992/20, 31/3/1992.

[6]   Application No: 2014/6548, P.46; “In 1992, the Constitutional Court decided on a complaint regarding the provision in the second paragraph of Article 2 of Law No. 3713 that those who are not members of a terrorist organisation but commit crimes on behalf of this organisation shall be deemed to be terror offenders and concluded that Article 2 was not contrary to Article 38 of the Constitution. The Constitutional Court examined the claim that the provision in question was difficult to understand and therefore could lead to inaccuracies and injustices in practice, and that it was therefore incompatible with the principle of legality of the offence set out in Article 38 of the Constitution; the Constitutional Court stated that since the provision to be revoked referred to committing an offence on behalf of an organisation, the offence must be committed with the knowledge and at the request of the organisation. The Constitutional Court also stated that the conviction of a person as a terror offender under the rule under review depends on the determination by independent courts that he/she has committed a crime in line with the aim of the organisation as a member of a terrorist organisation or that he/she is a member of such an organisation, and that the relevant rule is not contrary to the presumption of innocence or the principle of individuality of criminal responsibility (Constitutional Court, Docket No.: 1991/18, Decis. No.: 1992/20, Date of Decis.: 31/3/1992).”

[7] 16th Criminal Chamber of the Court of Cassation, Docket No: 2015/2084, Decis. No.: 2017/5026, Date of Decis.: 05/10/2017.

a)    Evaluation within the scope of the Anti-Terror Law and the Related Regulation

The Ministry stated that these lists were prepared in accordance with Article 19 of the Anti-Terror Law, titled “Rewards”, in order to combat terrorism more effectively. According to the regulation in the law,  provided that they did not participate in its committing those,  who helped to uncover the crime within the scope of this law or to seize the evidence or to catch the perpetrators of the crime or to find their location or identities will be given a monetary reward. The determination of the amount of the award and the procedures and principles regarding the award are left to the Ministry of Interior^[1].

Looking at the arrangement in this Law, it is seen that the article does not include an authorization that allows the Ministry to create a wanted list and to categorize some suspects or accused persons whose trials are still ongoing and for whom there is no final conviction yet.

On the other hand, the Ministry stated that the wanted list was prepared within the framework of the “Regulation on Rewards to be Given to Those Who Helped to Discover Terrorist Crimes or Seize Evidence or Catch Criminal Perpetrators”, which was enacted within the scope of the authority given to the Ministry after the Law amendment.

First of all, the concept of “terrorist criminal” in the Regulation should be examined. In order to consider one person as a terrorist criminal, it must be proven that he “committed a crime” or “is a member of an organization”. Of course, the authority that will decide on this is impartial and independent courts.  However, there is no final court decision and there is not even a trial started against the majority of people who have been added to the list of wanted terrorists Therefore, sharing pictures with personal information of people who do not have a court decision by being accepted as terrorist criminals is a crime as well as a violation of the presumption of innocence and the right to respect for private life.

It is seen that an authority which is not given to the Ministry by the Law is used in the Regulation. Because, in the article of the Law, it is regulated that only the procedures and the principles regarding the determination of the award and the  amount of the award will be determined by the Regulation. There is no provision in the text of the law that authorizes the administration to prepare a “wanted list” ex officio. At this point, it is already a universal rule of law that a person who has not yet had a final conviction will not be included in the concept of “terrorist criminals” in the Regulation.

Therefore, even if the provision of the Regulation is taken as a basis, it can only be applied to the wanted list for those who have a finalized conviction. However, there are many people on the list who do not have a finalized conviction. it is seen that the Ministry of Interior declared hundreds of people terrorist criminals with an administrative act. In this respect, the wanted list is clearly against the law. Moreover, the Regulation does not have the authority to prepare lists and create categories.

b)    Implementation of the Fugitive Procedure on Non-Fugitive Persons

On the other hand, the procedures and principles to be applied regarding the suspects and defendants who cannot be reached or who are fugitives, although the trial is still ongoing, are stipulated in Articles 247 and the following of the Criminal Procedure Code No. 5271 (CPC). If the people on the wanted list are considered to be fugitives, first of all, the procedures in Articles 247 and the following of the CPC, which includes the provisions on the “Trial of Fugitives”, must be completed.

If there is no arrest warrant issued by these authorities, whose file is currently in the Cassation  Court or Appeal Court, these persons cannot be treated as “fugitives”. The same situation is valid for the persons whose trial continues despite the fact that their statements were taken in the main court.  However, a person who cannot be reached during the investigation and trial stages may be treated as a fugitive. In this regard, the mandatory procedures stipulated by the Law must be fulfilled.

In this context, it is seen that people are included in the wanted list as fugitives without completing the summoning and newspaper announcement procedures as a legal obligation. In an ongoing case, it is seen that the Ministry of Interior, which is the administrative authority, puts itself in the place of the judicial authorities and treats people as fugitives.  This action is a violation of the right to a fair trial in this regard.

c)    Violation of the Right to Fair Trial and Presumption of Innocence

At this point, it is seen that these lists have been prepared without any decision from the relevant judicial authority. The ECtHR has recently given a verdict of violation of rights about some academics, journalists and members of the judiciary included in the list. It was accepted by the ECtHR that they were declared terrorists with an unlawful trial. Despite this, this list prepared by the Ministry violated the presumption of innocence and the right to a fair trial. Likewise, sharing personal information openly and illegally on the internet is a violation of the right not to be tarnished, the right to respect for material and moral bodily integrity, the right to respect for private and family life, and the right to respect for human dignity.

d)    Encouraging Turks Living Abroad to Act as Agents

With the Regulation in Article  6 of the “Announcement” of the regulation, it is seen that especially Turks abroad are encouraged to act as spies. The Ministry of Interior requests that the persons on the wanted list, which it has prepared in violation of domestic law and international procedures, be reported to the competent authorities in Turkey. This unlawful incentive may cause Turkish citizens to be prosecuted for spying in their country of residence. Likewise, it is clear that if such actions are detected, it will result in the removal of citizenship or deportation of those concerned.

e)    Violation of INTERPOL Procedure and Seeking Unlawful Alternatives

As it is known, INTERPOL has stopped publishing bulletins from Turkey since the coup attempt in July 2016. Because   Turkey abused procedures of INTERPOL and therefore violate the Interpol Constitution.   In this context, INTERPOL, which is of the opinion that these requests do not comply with its founding principles, officially announced to Euronews that it rejected the previous red notice request from Turkey regarding Can Dündar^[2]. On 3 June 2021, while reporting to the Turkish Parliament on the preparations of the 89th Interpol General Assembly by Turkish bureacurats, it was stated that the Interpol General Secretariat rejected 773 requests for the detention of its members perceived by the Gülen Movement.

Therefore, Turkey is not able to issue a red notice because it is on the red list by INTERPOL.  In order to suppress and persecute dissidents and activists abroad, Turkey has issued a “Wanted List”, this time in violation of the Anti-Terror Law and the relevant Regulation. Thus, it aims to reach its goal by encouraging citizens abroad to act as spies.

Here is an example of a state that sets a trap for its own people.

^[1] https://www.icisleri.gov.tr/bakanligimiz-tarafindan-teror-kapsaminda-arananlar-listesi-guncellendi İET: 02/01/2023

^[2] https://www.dw.com/tr/yorum-interpol-t%C3%BCrkiyeye-insan-haklar%C4%B1n%C4%B1-hat%C4%B1rlatt%C4%B1/a-57851287

The crime of torture is regulated in Article 94 of the Turkish Penal Code (TPC), titled “Torture”. The article regulates the basic and aggravated forms of crime and the amount of punishment. In addition, if acts of torture are committed systematically and in line with a plan against a part of the society with political, philosophical, racial, or religious motives, a crime against humanity as set out in Article 77 of the TPC will occur.

The prohibition of torture, included in the category of crimes against humanity, is mentioned among the fundamental rights of the individual in international law documents. Article 5 of the Universal Declaration of Human Rights states that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. Likewise, Article 3 of the European Convention on Human Rights, titled “Prohibition of torture”, includes the provision of “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”.

According to the findings of the Turkish Human Rights Association Documentation Unit, at least 980 people were subjected to torture or ill-treatment in detention places from January to November (2022). In this context, 310 prisoners complained that they were tortured or ill-treated in prisons. Unfortunately, it is seen that these practices have become routine during the state of emergency.

Prevention of torture is of vital importance in terms of protecting the right to life and securing the right to freedom and security in a democratic state of law. There is no statute of limitations for the torture.  Torture should be investigated without waiting for a complaint due to its serious violation of human rights.

However, Turkish judicial authorities take the torturers under protection instead of calling them to account for the torture. Especially during the state of emergency, it was implemented as a state policy. With the State of Emergency Decree, an immunity shield was brought to those who carried out the torture acts. After the state of emergency, while acts of torture continue, responsible public officials are protected by the judiciary. The latest example of this is Abdulkadir Türkyılmaz, a police officer working in the Anti-Terror Branch of the Ankara Police Department. Access to news and tweets containing allegations of torture by Abdulkadir Türkyılmaz was imposed by the court[1].

Türkyılmaz came to the fore with his confession that he tortured some soldiers after the July 15 coup attempt and his use of violence against MP Ömer Faruk Gergerlioğlu in front of his family. In the investigation launched after the complaints made against Türkyılmaz, he admitted that he had “ill-treated” some soldiers, including senior commanders, in the heat of the coup d’etat and that he had hung a colonel from his leg in the pot.  However, Türkyılmaz said that he did not regret his acts.

Abdulkadir Türkyılmaz had applied to the court to have removed the news of torture. Ankara 6 Magistrates Court decided to remove the tweets as well as the news. In this context, with the 102-page decision of the Court; In total, access to 2071 URLs were banned.

As seen in the case of Abdulkadir Türkyılmaz, torture, a crime against humanity and having no statute of limitations, has turned into an administrative practice under state control. Instead of fighting against torture, measures are taken to prevent the disclosure and prosecution of torturers.

Arbitrary and non-compliant attitudes and behaviors adopted by the law enforcement officers with the encouragement and support of the government during the state of emergency caused those incidents to grow day by day. The main reason why state-sponsored torture has become an administrative practice is the armor of irresponsibility provided for torturer public officials by the emergency decree laws. Even though the state of emergency ended, state of irresponsibility continues with the secret support of the state. At this point, the judicial authorities have an important role in the continuation of irresponsibility and in the non-accountability of the perpetrators. While the judicial authorities should act ex officio and do what is necessary to punish the criminals in order to prevent torture, it is seen that the judicial authorities sometimes shield the perpetrators and protect them with “decisions of non-prosecution” and sometimes “decisions on the access ban to torture news”.

However, it should be kept in mind that acts of torture, which are crimes against humanity, will always be the subject of investigation since there is no lapse of time. At this point, the decision of non-prosecution of the torturers by the court of the Palace regime will never save the perpetrators. When justice comes back, the torture files will be taken off the shelves without exception. Therefore, although taking a decision of non-prosecution or a decision to block access is a refuge in the Erdogan regime, even these decisions themselves will be a guide in determining torturers.

In addition, it should not be forgotten that, since the public officials systematically committed acts of torture against certain segments of the society, especially the members of the Gülen Movement, with the State of Emergency process, their trials would be within the scope of crimes against humanity in Article 77 of the Turkish Penal Code.

[1] https://aktifhaber.com/gundem/iskenceci-polis-abdulkadir-turkyilmaz-izlerini-silmeye-calisiyor-2071-haber-ve-tweet-icin-erisim-engeli.html

The Birol Erdem decision announced by the Assembly of Criminal Chambers of the Court of Cassation has become the most discussed topic of this week. Birol Erdem, who still works as the High Counselor of the Ministry of Justice, became a member of the Council of Judges and Prosecutors (HSK) on October 25, 2010 and served as the Undersecretary of the Ministry of Justice between November 21, 2011 and January 1, 2014. Birol Erdem and his wife were detained on 3 June 2017 as part of the investigations initiated by the Ankara Public Prosecutor’s Office against the Gülen Movement. He was released by the judge on duty, but his wife, Gülümser  Erdem, was arrested on 17 June 2017 on charges of “membership of an armed terrorist organization” and “fraud”. Gülümser Erdem was later released on the condition of judicial control.

The former undersecretary, who was prosecuted for the charge of leading an armed terrorist organization, was acquitted by the 9th Criminal Chamber of the Court of Cassation, on the grounds of Article 30 of the Turkish Penal Code (9. CD. 01/02/2021 T., 2019/11 E., 2021/5 K.). The acquittal decision was approved by the Assembly of Criminal Chambers this week. During the trial, Birol Erdem explained his activities within the Gülen Movement and his high-level duties in detail. Besides, he gave comprehensive information about systematic and planned blacklisting operations. According to Birol Erdem’s statements he had blacklisted approximately 3000 judges and prosecutors, whom he thought were members of the Gülen Movement in the Turkish judiciary, since 2013. He also testified against the judges and prosecutors he blacklisted.

Although former undersecretary Birol Erdem admitted that he was the main actor in the blacklisting process of the Turkish judiciary and that he had blacklisted thousands of judges and prosecutors and shared sensitive personal data with the intelligence agency, the Court of Cassation deemed these unlawful actions of the former undersecretary to be legitimate.  The Court of Cassation evaluated these unlawful acts of the former undersecretary in his favor in the “interpretation of the concept of delinquency” and acquitted him.

The Court of Cassation, which upheld the imprisonments given to hundreds of thousands of innocent people on the basis of unlawful evidence and fabricated reasons, decided that Birol Erdem, who confessed of being a member of the Gülen Movement and carrying out crucial duties, had not known the ultimate purpose of the Movement and therefore he had fallen into error about this matter. As can be seen, the Court of Cassation acquitted the defendant on the grounds of “mistake” that it embellished with universal law principles in order to save the former undersecretary who blacklisted most of judges and prosecutors. However, The Court of Cassation has not applied ‘the provision of mistake’ (TPC art. 30) until now, as the Supreme Court is aware of the fact that if the aforementioned rule was applied to others accused of being members of the Gülen Movement, then everyone would be acquitted. 

In other words, Birol Erdem was benefited from “the provision of mistake” because he took part in blacklisting commissions, engaged in illegal intelligence activities outside of his primary duties, and testified against hundreds of judges and prosecutors.

The Turkish judiciary was put under pressure with the start of the 17/25 December Bribery and Corruption Operations. Through the dismissal of around 5000 judges and prosecutors from their profession and the detention of most of them on the grounds of the July 15 coup attempt, the judiciary was actually put under the control of the government. With the subsequent amendments to the Constitution and laws, it has become an apparatus under the control of the government. Thus, the Turkish judiciary has assumed the identity of a regime judiciary rather than being an independent and impartial judiciary.

Thus, the Supreme Court remained in a position far from its main function and started to act as an organ of the government. The Court of Cassation has used the government’s statements about the Gülen Movement as justification for its decisions. It prejudicedly accepted the Gülen Movement as a criminal organization having the virtual layers within a pyramidal structure which was invented by the Supreme Court itself (CGK E. 2017/16-956 K. 2017/370 T. 26.09.2017). The same court has now acquitted the former Undersecretary of Ministry of Justice, who had blacklisted thousands of his colleagues and gave false testimony against them. This is the exact summary of the disgraceful situation of the judiciary in Turkey.

A. GENERAL ASSESSMENT OF THE COMMITTEE’S DECISION

The United Nations Human Rights Committee reached an important decision on unlawful detention, poor prison conditions and violation of the right to a fair trial in the Mukadder Alakuş file numbered 3736/2020, which we discussed in our previous article.  the Committee particularly emphasized in its assessment about the applicant that taking some acts as the basis for the arrest and conviction as evidence of membership in a terrorist organization which is not defined as crimes or prohibited under domestic law, such as using the ByLock messaging program, having a Bank Asya account, and attending a peaceful meeting, is a violation of rights.

Shortly after this important decision, the UN Human Rights Committee announced another important violation decision of the same nature.  The committee has made important determinations and has found significant violations in the decision of Gökhan Açıkkollu dated 30/11/2022 and numbered 3730/2020. Gökhan Açıkkollu, who was a teacher at that time, was detained after the coup attempt on 15 July and died as a result of the torture and ill-treatment he suffered while in custody. the prosecutor’s office decided not to prosecute in the investigation conducted regarding Açıkkollu’s death,. After the decision of non-prosecution, Gökhan Açıkkollu’s wife, Mümine Acikkollu lodged an application to the United Nations Human Rights Committee in order to detect violations of Gökhan Açıkkollu’s right to life and the investigation process after his death.

The Committee has made the following determinations and evaluations regarding the Applicant’s claims that:

• Unlawful detention of Gökhan Açıkkollu without any evidence that he is a member of an armed terrorist organization
  • Gökhan Açıkkollu’s death as a result of torture and ill-treatment while in custody
  • In the investigation process initiated after Gökhan Açıkkolu’s death, the decision of non-prosecution was given without an adequate and effective investigation.
  • Individual application to the Constitutional Court is not an effective domestic remedy for this kind of application.

B. MATTERS OF THE COMMITTEE

a.   The Constitutional Court and Exhaustion of Domestic Remedies

7.4 Following its jurisprudence[10], the Committee notes that the European Court of Human Rights has expressed concern as to the effectiveness of the remedy of an individual complaint to the Constitutional Court in cases concerning pre-trial detention, due to the non-implementation, by lower courts, of the Constitutional Court’s findings in two cases in which the Constitutional Court had found violations of the applicants’ rights. The European Court has also noted that it would be for the Government to prove that the remedy of an individual complaint to the Constitutional Court is effective, both in theory and in practice, in cases concerning the right to liberty and security.[11]11 The Committee finds that, in the circumstances of the author’s case, and in light of the authority of the Constitutional Court’s judgements by lower courts in recent cases, the State party has not shown that an individual complaint before the Constitutional Court would have been effective, in practice, to challenge the lawfulness of her husband’s detention and subsequent death in custody.

b. Gökhan Açıkkollu’s Death As A Result Of Torture And İll-Treatment While In Custody

8.1 The Committee has considered the communication in the light of all the information submitted to it by the parties, as required under article 5 (1) of the Optional Protocol.

8.2 The Committee notes the State party’s derogation under article 4 of the Covenant, which came into effect after the events giving rise to this communication, on 2 August 2016, after declaring a nationwide state of emergency (paras 1.2 and 4.1 supra). The Committee notes that a fundamental requirement for any measure derogating from the Covenant is that it is be limited to the extent strictly required by the exigencies of the situation in accordance with the principle of proportionality. The Committee further recalls that the mere fact that a permissible derogation from a specific provision may, of itself, be justified by the exigencies of the situation does not obviate the requirement that specific measures taken pursuant to the derogation must also be shown to be required by the exigencies of the situation.[12] The Committee recalls that article 4 (2) of the Covenant explicitly prescribes that no derogation may be made from articles 6 and 7.[13] Although article 9 of the Covenant is not included in the list of non-derogable rights under article 4 (2), the Committee recalls that the fundamental guarantee against arbitrary detention is non-derogable, insofar as even situations covered by article 4 cannot justify a deprivation of liberty that is unreasonable or unnecessary under the circumstances. The existence and nature of a public emergency which threatens the life of the nation may, however, be relevant to a determination of whether a particular arrest or detention is arbitrary.[14]

8.3 The Committee notes the author’s claims under articles 6 and 7 of the Covenant, that despite the authorities’ knowledge of her husband’s health problems, when he was in custody, her husband was subjected to torture and ill-treatment which resulted in his death. It also notes the author’s claim that she and her family suffered mental anguish and inhuman treatment due to the failure of the State party to properly investigate the death of her husband. The Committee takes note of the State party’s argument that the author’s husband was provided with adequate medication and regularly examined, and that, as indicated in the autopsy reports, he died from a heart attack without any indication that he was subjected to torture or ill-treatment. It also notes the State party’s submission that the investigation into the author’s husband’s death was duly conducted, in compliance with international standards and protocols, and based on tangible evidence.

8.4 The Committee recalls that the State party remains responsible for the life and well-being of its detainees, and that the duty to protect the life of all detained individuals includes providing them with the necessary medical care and appropriate regular monitoring of their health.[15] Loss of life occurring in custody, in unnatural circumstances, creates a presumption of arbitrary deprivation of life by State authorities, which can only be rebutted on the basis of a thorough, prompt and impartial investigation that establishes the State’s compliance with its obligations under article 6.[16] The Committee further recalls that it is the duty of the State party to afford everyone protection as may be necessary against acts prohibited by article 7, such as torture and ill-treatment, which may seriously affect the physical and mental health of the mistreated individual, and could also generate the risk of deprivation of life.[17] When confronted with allegations of torture and ill-treatment, it is incumbent on the State party to produce evidence refuting the allegations that its agents are responsible and showing that they applied due diligence in protecting the detainee through a prompt and impartial investigation applying the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol). The Committee similarly recalls that prosecutions of potentially unlawful deprivations of life should be undertaken in accordance with relevant international standards, including the Minnesota Protocol on the Investigation of Potentially Unlawful Death, and must be aimed at ensuring that those responsible are brought to justice, promoting accountability and preventing impunity, and drawing necessary lessons for revising practices and policies with a view to avoiding repeated violations.[18]

8.5 In the present case, the Committee observes that the State party has provided two autopsy reports concluding that (i) the author’s husband did not die due to a traumatic effect or from poisoning; (ii) the colour changes in skin tissue and features of sternal and rib fractures observed are possibly due to the revitalization operations; and (iii) he died as a result of an acute myocardial infarction. It also observes that the State party provides the public prosecutor’s decision of non-prosecution stating that “there is no suspicious situation regarding the information and findings that require the presence of an external factor considered to have an effect of contribution to the death of Gökhan Açikkollu”. However, the Committee observes that both the decision of non-prosecution and the autopsy report dated 23 November 2016 noted the author’s and her brother’s statements raising concern that torture might be occurring.[19] The Committee also notes that the State party has not provided any information regarding the discrepancies in the author’s husband’s medical reports whilst in custody, which in several cases confirmed injuries to his ribs, near to his neck, on his back, his psychological depression and symptoms of dizziness and sweating. It notes that the State party did not establish that the allegations of the author’s husband during a medical examination on 3 August 2016, that he had been exposed to physical and psychological trauma while in detention, were promptly, impartially and thoroughly investigated.[20] It also observes that the State party did not investigate either the doctors’ assessment in their report that the injuries observed in the author’s husband’s neck were “possibly due to old trauma”. The Committee considers that, based on the information available to it on file, although the authorities were aware of the allegations of torture, it is not apparent that any ex officio investigation was conducted, in compliance with the Istanbul Protocol, on the basis of these allegations, the apparent signs on the author’s husband’s body and the medically reported psychological symptoms. The Committee considers that, in the circumstances of the present case, and in particular in light of the State party’s inability to effectively explain either the visible signs of mistreatment that were witnessed on a number of occasions or to establish that serious investigations were carried out, due weight should be given to the author’s claims. The Committee concludes that the State party failed to observe due diligence in protecting the author’s husband from torture and ill-treatment, and ultimately in protecting his life whilst in detention, considering his known pre-existing health problems, in breach of articles 6 and 7 of the Covenant.

8.6 Whilst recalling that it is not incumbent on the Committee to evaluate facts and evidence and conclusions reached in the investigation, it considers that the State party has not demonstrated that a thorough and impartial investigation into the allegations of torture and the death of the author’s husband took place, justifying on what basis several witness statements of co-detainees were not considered during the investigation or why his allegations of torture prior to his death were not effectively investigated at the time. The Committee further observes the uncertain conclusions in one autopsy report regarding his rib fractures suggesting that “it is possible that this happened during the revitalization operations”, which ignores the signs of injuries and allegations of torture reported prior to his death. The Committee concludes that the failure of the State party’s authorities to investigate promptly and thoroughly the circumstances of Gökhan Açikkollu’s death effectively denied a remedy to the author and her children, and amounted to mental suffering in violation of their rights under article 7.

c.     Arbitrary Detention and Investigation Process

8.7 The Committee notes the author’s claims under articles 9 and 14 of the Covenant, that her husband was arbitrarily arrested and detained in the absence of evidence of his links to the coup attempt, and that the supposed evidence of his use of the Bylock application could not serve as a sufficient basis to place him in custody and was obtained unlawfully. It further notes the author’s allegations that: (a) her husband was never informed of the charges brought against him; (b) he was unable to appoint a lawyer; (c) his defense statement was never taken; (d) he was never presented before a judge during his 13 days in detention, and; (e) he was presumed guilty despite the absence of proof against him. The Committee notes the State party’s argument that the author’s husband was immediately informed of the reasons for his arrest and of the charge of membership of a terrorist organization brought against him, based on his use of the Bylock application and possession of a Bank Asya account, which constitute decisive and legally collected evidence of the criminal offense of membership in FETO. It takes of the State party’s submission that the charges were also based on a witness statement, which the author’s husband recognized in his statement, and that during the period of his pre-trial detention, which complied with the law on the state of emergency, he was able to meet with his lawyers.

8.8 The Committee notes that the author has not claimed that her husband’s detention was unlawful by virtue of the decree laws under the state of emergency. The question before the Committee is therefore to consider whether his detention was arbitrary. The Committee recalls that the notion of “arbitrariness” must be interpreted broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law, as well as elements of reasonableness, necessity and proportionality and that remand in custody on criminal charges must be reasonable and necessary in all circumstances[21]. The Committee observes that the State party submitted in its initial observations that the charges brought against the author’s husband were based on the crucial evidence of his use and installation of a Bylock application and ownership of a Bank Asya account, and clarified in its second observations that he was taken into custody based on witness statements. Nevertheless, it notes that the State party has not provided any documentation, such as the alleged witness statements, an arrest warrant, detention order, conversation records on the Bylock application, or any proof regarding the evidence purportedly justifying detention of the author’s husband. It also takes note that the State party has not provided comments on the letter from the Ministry of Education reinstating the author’s husband as a teacher. Furthermore, the Committee notes that the judgements of the Constitutional Court, referred to by the State party, ruling that the use of Bylock application can be relied on as sole or decisive evidence of the criminal offense of membership of FETO, were published after the arrest and detention of the author’s husband. In this sense, the Committee considers that the State party has not provided information as to how, at the time of the arrest and detention of the author’s husband, the judicial authorities had sufficient information on the nature of Bylock to conclude that the application was used exclusively by members of FETO for the purposes of internal communication, which could justify his detention.[22] The Committee further recalls that persons arrested for the purpose of investigating crimes that they may have committed or for the purpose of holding them for criminal trial must be promptly informed of the crimes of which they are suspected or accused.[23] The Committee notes that the State party has not submitted any documentation such as the detention order, arrest warrant or transcripts of judicial proceedings, in order to substantiate its claim that the author’s husband had been promptly informed of the reason for his arrest or the charges against him. It further notes that the State party has not provided any information on the questions posed to him during the investigation or record of the interview dated 27 July 2016, which it claims to have conducted. In these circumstances, the Committee considers that the State party has not established that the author’s husband was promptly informed of the charges against him and the reason for his arrest, nor substantiated that his detention met the criteria of reasonableness and necessity. It recalls that a derogation under article 4 cannot justify a deprivation of liberty that is unreasonable or unnecessary.[24] The Committee therefore finds that the author’s husband’s detention amounted to a violation of his rights under article 9 (1) and (2) of the Covenant.

8.9 Having found a violation of articles 6, 7, 9(1) and 9(2) of the Covenant, the Committee decides not to separately examine the author’s claims of a violation of articles 14(2), (3)(b) and (d).

The United Nations Human Rights Committee made an important decision in the file number 3736/2020 on the issues of wrongful arrest, poor prison conditions and the violation of the right to a fair trial. The application to the Committee was made by Mukadder Alakuş, a national of Türkiye born in 1971 who is currently held in Eskisehir Type L Closed Prison. Ms. Alakuş was accused of being a member of the Gülen Movement, which is considered a Terrorist Organization (FETÖ) in Turkey. The accusations of membership in a terrorist organization against him are based on the fact that he deposited money in her Bank Asya accounts, downloaded the Bylock application on her phone, and attended a peaceful rally.

The applicant was taken into custody on 4 September 2018 and held in custody for one day without food, water or medication. The applicant was arrested by the court on 5 September 2018 and transferred to Eskişehir H Type Prison on the same day. She was forced to live in bad conditions in prison.

The applicant applied to the United Nations Human Rights Committee within the scope of the International Covenant on Civil and Political Rights due to her unlawful arrest, poor prison conditions and the violation of her right to a fair trial. In the application, it is claimed that Turkey has violated applicant rights under articles 6, 7, 9, 10, 14, 15, 18, 19, 21, 22, 25, 26 and 27 of the Covenant.

In its assessment, the Committee particularly emphasized that it is a violation of rights to use as a basis for an arrest and conviction decision the Bylock messaging program used as evidence in both the arrest warrant and the conviction decision, having a Bank Asya account and participating in a peaceful meeting, which is not defined as crimes or prohibited under domestic law.  When the assessment of the committee given below are examined in detail, it will be seen that the provisions of the Covenant were clearly violated and the requirements of the right to a fair trial were not fulfilled in the process of making arrest and conviction decisions by the courts in Turkey. In fact, these determinations of the committee mean that the systematic and widespread violations of rights experienced in the investigations and trials against members of the Gülen Movement after the 15 July Coup Attempt are determined and accepted by the Committee.

A.   THE DETERMINATION OF THE FACT THAT THE APPLICATION TO THE CONSTITUTIONAL COURT IS NOT AN ACTIVE DOMESTIC REMEDY

On admissibility, the State party submits that the author has failed to exhaust domestic remedies, as her individual application before the Constitutional Court 7 is currently pending and was lodged after submitting the present communication. ( 4.2)

The author reiterates her claim that an individual application to the Constitutional Court does not offer reasonable prospects of success, pointing to cases where lower courts ignored the judgments of the Constitutional Court. (5.3) On the non-enforceability of the judgements of the Constitutional Court, the author reiterates that this was also raised by the European Court in the Altan, Alpay and Koçintar cases.  (7.1)

The Committee notes the author’s argument that filing an individual application before the Constitutional Court is not an effective remedy as: (a) it does not offer reasonable prospects of success for her release, owing to the non-enforcement of the Court’s judgements by lower courts; (b) the process would be unreasonably prolonged considering the author’s first attempt to exhaust remedies before domestic courts on 4 September 2018 and the Constitutional Court’s backlog. (9.5) The Committee finds that, in the circumstances of the author’s case, the State party has not shown that an individual complaint to challenge the author’s detention before the Constitutional Court would have been effective, in practice. (9.5) 

As can be seen, while taking into account the past examples the Committee considers  that the remedy of individual application to the Constitutional Court  is ineffective.

B.    RESPONSIBILITY OF PROOF

First of all, when the Committee’s decision is examined, a particular emphasis is placed on the responsibility of the State party to prove its obligations due to its strong position in the process. For this reason, it has placed the burden of proof on the State party in terms of whether the person has been detained in accordance with the law, kept in prison in conditions suitable for human dignity, and fulfilled the requirements of the right to a fair trial. Therefore, in order for the State party to prove that it has fulfilled its obligations, every action must be justified, these justifications must have legal and factual grounds, and most importantly, this must be proven with legal evidence. It is clearly stated that the state party should respond to the claims of the violation of rights with concrete justifications and evidence, instead of demanding the citizen to prove the violation of rights. At this point, what is essential for the citizen is to state that his right has been violated, and for the state, what is essential is to prove with documents and evidence that the claims of the citizen do not reflect the truth.

C.    UNLAWFUL DETENTION AND ARREST

The Committee notes the author’s claim under articles 9(1), of the Covenant regarding the unlawful and arbitrary nature of her arrest and detention. The Committee takes note of the author’s claims that her arrest and detention were solely based on her alleged use of the Bylock application, on holding a Bank Asya account and on her participation in a peaceful rally, without solid evidence to suggest a strong suspicion that she had committed a criminal offense; her arrest warrant did not include facts or evidence which would justify her pre-trial detention during such a long period. (Prg.10.2)

Another important issue that the Committee focused on regarding detention and arrest is the concept of “arbitrariness”.  The Committee recalls that the notion of “arbitrariness” must be interpreted broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law, as well as elements of reasonableness, necessity and proportionality. The Committee, observes that the State party has only provided a partial copy of the court hearing of 28 December 2018, without providing any further documentation, such as an arrest warrant or detention order, regarding the evidence held against the author that would justify her detention. In these circumstances, the Committee considers that the State party has not demonstrated that the author’s detention met the criteria of reasonableness and necessity. The Committee therefore finds that the authors’ detention amounted to a violation of her rights under article 9 (1) of the Covenant. (Prg.10.3)   In other words, the Committee decides that detention and arrest are arbitrary.

As it can be seen, the Committee has not imposed the burden of proof on the applicant’s claims and documents to determine the arbitrariness of the detention measure.  The State party’s responses to the applicant’s allegations and the documents submitted by the State party are also taken as a basis for proof. In fact, the Committee has emphasized that a fair process of detention is a right for the individual and that the burden of proving that a detention process in accordance with right of a fair trial is on the State party. At this point, the Committee has not considered the sending of custody and detention documents by the State party sufficient to prove a fair trial and has decided that there is a violation of rights since no other evidence was presented to show that a fair trial was held.

D.   THE VIOLATION OF THE RIGHT TO A FAIR TRIAL

Another issue that the Committee focuses on is violations of the right to a fair trial. The Committee notes the author’s allegations under articles 14 (3) (b), (d) and (e), that she was unable to adequately prepare her defense; she was denied access to the entire case file; she was not permitted to call and cross-examine witnesses; she was not allowed to attend her trial in-person despite her request dated 14 December 2018; the conduct of proceedings online and her displaced dentures impeded her from correctly expressing herself.  (10.6)

After the Committee has emphasized the State party’s statements here The Committee observes, however, that the State party has not provided sufficient explanations or documentary evidence, such as full transcripts of the judicial proceedings in order to substantiate its refutations of the author’s allegations regarding her right to a fair trial. 10.6 (9)

The Committee further recalls that the burden of proof in relation to factual questions cannot rest on the author of the communication alone, especially considering that the author and the State party do not always have equal access to evidence and that frequently the State party alone has access to relevant information.52 It considers that the State party has not provided sufficient evidence, such as the full transcripts of the judicial proceedings, which would indicate that the author: (a) was able to adequately express herself throughout the proceedings; (b) was able to cross-examine witnesses, and (c) was able to prepare her defense despite her detention conditions. (10.7)

The Committee recalls that under article 14 (3) (d), accused persons are entitled to be present during their trial and that proceedings in the absence of the accused are only permissible if this is in the interest of the proper administration of justice. The Committee also observes that the conduction of trial hearings through video conference systems would not necessarily constitute per se a breach of fair trial guarantees. The Committee notes however that the author addressed a request to the first instance court on 14 December 2018 in order to be present in trial. It considers that in the absence of further relevant information or explanations by the State party, apart from the practical aspects set out in the Izmir Regional Court of Justice’s decision which  in particular, justified the conduction of the author’s trial remotely and rejected her request to be present, its 14(3)(b), (d) and (e) articles have been violated.(10.7)

As stated above, the Committee did not consider the State party’s incomplete and general statements as sufficient. It also decided that the right to a fair trial was violated since the State party has not submitted concrete evidence and documents to the Committee regarding the fulfillment of its obligations in line with the allegations of the applicant.

E.    THE USE OF BYLOCK AND BANK ASYA ACCOUNT BASIS OF THE CRIMINAL DECISION IS A VIOLATION OF THE RIGHT TO A FAIR TRIAL

The Committee has made important assessments regarding the conviction of the applicant for actions that are not defined as crimes or prohibited under domestic law, such as downloading the Bylock application, sharing information through this application, having a Bank Asya account and attending a peaceful meeting under Article 15 (1) of the Convention.

In this context, the Committee further notes about the decision of the Cassation Court (16.CD.  E. 2017/16-956, K. 2017/370) “the involvement of any individual” with the Bylock application “beyond any doubt proves the linking of the individual to the terrorist organization”, (…) “since the Bylock messaging app is a communication network, exclusively designed and developed to fulfill the communication needs of the FETÖ terrorist organization” (Prg.10.4)

At the point of entry to the subject, first of all, the Committee recalls its jurisprudence to the effect that it is incumbent on the courts of States parties to evaluate the facts and evidence in each case or the application of domestic legislation, unless it can be shown that such evaluation or application was clearly arbitrary or amounted to a manifest error or denial of justice (10.5)

Furthermore, The Committee observes that article 314, paragraph 1 of the Turkish Penal Code, defines the crime of membership of an armed terrorist organization as “any person who establishes or commands an armed organization with the purpose of committing the offenses listed in parts four and five of this chapter”. (10.6)

In light of this broad definition, and in the absence of information from the State party regarding the existence of domestic legal provisions which clarify the criteria used to establish the acts constitutive of the crime defined under article 314, paragraph 1, of the Penal Code, the Committee cannot conclude that the author’s alleged use of the Bylock application and Bank Asya account amounted to sufficiently clear and predictable criminal offenses at the time the acts took place. The Committee considers that, as a matter of principle, the mere use or download of a means of encrypted communication or bank account cannot indicate, in itself, evidence of membership of an illegal armed organization, unless supported by other evidence, such as conversation records. In the absence of documentary evidence provided by the State party, the Committee finds, in these circumstances, that the rights of the author under article 15(1) have been violated .  (Prg.10.6)

F.    POOR PRISON CONDITIONS

Another issue on which the Committee evaluated and ultimately found a violation of the Convention is the conditions of detention in prison, which is incompatible with human dignity.

Since it is a fundamental human right to accommodate the detainee in conditions suitable for human dignity and the State has a positive obligation to ensure this, the Committee also requests the State to prove that it has fulfilled its obligations. However, due to the lack of much information or explanation by the State party in response to the applicant’s allegations and evidence, the Committee concluded that certain minimum requirements were not met and that the State party violated the applicant’s rights under Article 10 (1).

The author claims a violation of her rights under articles 6, 7, 9, 10, 14, 15, and 18 to 27 of the Covenant. She claims that her conditions of detention put her life at risk and amount to inhuman and degrading treatment, in violation of articles 6, 7 and 10 of the Covenant. The prison is overcrowded and there is not enough food or access to hot water for all inmates. Drinking water for detainees is distilled from the ceiling. The unhygienic conditions of detention and her lack of access to adequate medical treatment and food have deteriorated her medical condition and increased her risk of death..(3.1)

The Committee observes that, the State party has not provided any information to refute the author’s allegations regarding her conditions of detention in police custody and in Eskisehir Type H Prison. It notes that the State party’s information regarding the available floor space at Eskisehir Type L Prison is presented in general terms, without providing information about the number of inmates the author shares her prison cell with nor the specific floor space available to her. The Committee further notes that the State party has not refuted the author’s allegation regarding her sleeping conditions, her effective lack of access to an adequate diet and inaccessibility of the toilets, considering her knee condition and the absence of a caretaker. The Committee considers that, in the circumstances of the present case, and in particular in the light of the general nature of the information provided by the State party, due weight must be given to the author’s allegations. The Committee recalls that persons deprived of their liberty must not be subjected to any hardship or constraint other than that resulting from the deprivation of liberty. Under the circumstances as described, and in the absence of further relevant information or explanations by the State party, the Committee concludes that several minimum requirements were not met and that the State party violated the rights of the author under article 10 (1). (10.5)

In this article, evaluations on the Human Rights and Equality Institution of Turkey (HREIT), which has been granted B status by the Global Network of National Human Rights Institutions, are given.

1.  Global Network of National Human Rights Institutions

The Global Alliance of National Human Rights Institutions (GANHRI), a network of human rights institutions from around the world, was established in 1993. GANHRI supports national human rights institutions in compliance with the Paris Principles and works for the protection and strengthening of human rights.

2.  Paris Principles

National Human Rights Institutions (NHRIs) came to the fore as an idea in the period following World War II. In 1991, an international workshop on “national institutions for the protection and promotion of human rights” was organized to establish a framework for the status of NHRIs, and this framework was adopted as the Paris Principles at the 1993 Vienna Conference on Human Rights.

Adopted on 20 December 1993 by the UN General Assembly, the Paris Principles are a fundamental text setting out the framework for the qualifications of national human rights institutions, also referred to as “national institutions”.

The importance of the Paris Principles lies not only in determining the structure and function of NHRIs, but also in giving legitimacy and credibility to these institutions. In this sense, national human rights institutions to be established at the national level must be in line with the Paris Principles in order to have the expected impact.

3.  Accreditation

Accreditation is a procedure within GANHRI for the international visibility, recognition and voice of NHRIs, the purpose of which is to establish the national institution’s compliance with the Paris Principles.

According to the GANHRI Statute, the Sub-Committee on Accreditation (SCA) is the body that accredits national institutions according to their degree of compliance with the Paris Principles.

As of 2021, out of 128 institutions within GANHRI, a total of 118 NHRIs have been accredited, of which 86 are A level and 32 are B level.

Organizations accredited at level A are considered to be in compliance with the Paris Principles. These organizations can participate in all national and international meetings of national human rights institutions at a voting level. They may also attend all meetings of the Human Rights Council and speak on any agenda item.

The countries that received A status in the evaluation are as follows; Colombia, El Salvador, Indonesia, Nigeria, Peru, Sierra Leone.

Organizations accredited at level B may participate as observers in international meetings of national human rights institutions. However,

they are not issued international human rights institution badges and cannot speak at meetings of the Human Rights Council.

Some of the countries, including Turkey, to which the Sub-Committee granted B status are as follows: Nepal, Sri Lanka and Madagascar.

4.  A Level B Accredited Organisation; HREIT

The Human Rights and Equality Institution of Turkey (HREIT) has been accredited with “B” status by the Secretariat of the Accreditation Subcommittee of the Global Network of National Human Rights Institutions (Subcommittee). In other words, HREIT is far from meeting the Paris Principles.

It can only  participate  in   international  meetings as an observer, but it cannot receive the badge from an international human rights institution and it is not given the right to speak at the meetings of the Human Rights Council.

5.  HREIT’s B Accreditation Distortion

In its statement dated 10 October 2022, HREIT presented its B status as a great success and deliberately misled the public opinion.¹ In fact, the   decision of the HREIT regarding the Committee of granting of  “B” status;

-It means that the institution concerned is recognized as a National Human Rights Institution (NHRI) and therefore has the opportunity to participate in international and regional meetings of NHRIs.

-It will have the opportunity to submit parallel reports to the UN Organs and to the Universal Periodic Review Mechanism (UPRM) of the Human Rights Council“, but concealed the fact that it would only participate in the meetings as an observer and have no say in the proceedings, that it would not even be able to receive a badge from an international human rights organization, and

that in the eyes of GANHRI it had the same status as countries such² as Nepal, Sri Lanka and Madagascar.

6.  Reasons for Granting B Accreditation to HREIT

The GANHRI Subcommittee on Accreditation (SCA) published a report on the results of its meeting held in Geneva on 3-7 October 2022.³

In the said Report, criticisms against HREIT were expressed and the reasons why it was given B status were explained. The SCA analyzed HREIT in terms of the following criteria and found it inadequate.

a)  Independence

According to the Law on the Organisation of HREIT, the institution lacks independence due to the tutelage of the President over the institution. The Subcommittee on Accreditation emphasized that HREIT

should be independent from the government and parliament in terms of its structure, composition, decision-making and working method.

b)  Addressing Human Rights Violations

The Subcommittee found HREIT’s efforts to address all human rights violations and to carry out follow-up activities to ensure that the State fulfills its protection obligations inadequate.

The Subcommittee also recommended to HREIT that its positions on these issues be made public, as this would help promote and protect human rights, as well as strengthen the institution’s credibility and accessibility for all people in Turkey.

c)   Promoting ratification of or accession to international human rights instruments

The Subcommittee found that HREIT was not expressly authorized to                                                                                          promote ratification of and accession to regional and international human rights instruments.

d)  Interaction with the International Human Rights System

The Subcommittee observed that HREIT did not engage effectively and independently with the international human rights system.

e)  Pluralism and Diversity

The Law on Organisation does not contain any provisions on the pluralism and diversity of HREIT members and staff.

The Subcommittee determined that currently only 2 of the 11 members of the HREIT Board are women and one of them is disabled, and reported that 79 of the 180 staff members are women and 6 of them are disabled.

The Subcommittee recommended that the requirement for NHREI to reflect the principles of pluralism and diversity, including gender representation of the members of the NHREI Board, be included in the Law on Organisation.

f)  Selection and Appointment

Article 10(2) of the Law on the Organisation provides that the members of the Board will be elected by the President of the Republic. The Subcommittee considered that the selection and appointment process currently enshrined in the law does not ensure broad consultation and participation of civil society.

The Sub-Committee is of the view that the selection process should be characterized by openness and transparency. That is, it should be under the control of an independent and credible organization and should include fair consultation with NGOs and civil society.

The Subcommittee also noted that the Organisation Law did not establish predetermined, objective and publicly available criteria for assessing applicants.

g)  Annual Report

The Subcommittee found that there is no provision in the Organisation Law of HREIT on whether the annual and special reports are discussed in the Parliament.

The Subcommittee recommended that the Law on Organisation be amended to enable HREIT to discuss and evaluate the annual, special and thematic reports of the Parliament.

h)  Term of Office

Since there is no provision in the Law on Organisation and other legislation on whether the members of the HREIT Board can be re-elected or not, the door is left open for them to serve indefinitely.

The Subcommittee noted that HREIT reported that in practice, four of the current Board members were reappointed for a second term. In order to promote institutional independence, the Subcommittee recommended an amendment to the Law on the Organisation of the NHREI to limit the term of office to a second appointment.

7.  HREIT was Monitored for 5 Years

The accreditation process is reviewed every five years. In this sense, after five years, i.e. in 2027, HREIT is required to resubmit the necessary documents to the Subcommittee and fulfill the compliance with the Paris Principles and the recommendations and suggestions of the Subcommittee.

HREIT is an organization that was established as a “friends for friends’ sake“. It has no noteworthy activities regarding the grave human rights violations in Turkey. It is impossible for it to be accredited international organizations with its practices that use the regime’s rhetoric and justify the regime’s unlawful practices. Even a person who defends child marriages and says that preventing the consensual marriages of 15-year-olds is a violation of “human rights” and accuses those who live together without the marriage of having “perverted relationships” has been the president of this institution for years.⁴

Enforced abductions and disappearances have been organized systematically and widely by state officials within the framework of a certain plan. These illegal acts generally have targeted members of the Gülen Movement. These actions are organized by Turkish intelligence with the participation of Turkish judicial law enforcement forces. When people are outside for any reason they are abducted in front of people by pre-arranged vehicles and taken to torture centers. Although the forcibly abducted people later complained about these acts and ill-treatment in front of courts and prosecution offices, people are sentenced to the heaviest penalties without investigating these issues.

Forced abductions are not only experienced in Turkey, but also in some foreign countries which are persuaded by the political power and intelligence units through various illegal methods.  People are abducted and brought to Turkey in violation of international law. Complaint applications made to administrative and judicial authorities about forcibly abducted and disappeared persons are either not processed or complaint files are closed without any investigation. Some of the enforced disappearances are somehow handed over to law enforcement authorities after their statements are forcibly taken without any legal protection in torture centers after a long time passed.

The act of enforced abduction and disappearance is not limited to just one or two people, and this number has just reached 30 in Turkey. But the number of acts of enforced abduction and disappearance abroad is higher. In this context, Minister of Justice Bekir Bozdağ announced in an interview with Anadolu Agency on 12 July 2022 that 121 people from 28 different countries were abducted and brought to Turkey without an extradition decision during the terrorist operations against the Gulen Movement between 8 April 2014 and 1 July 2022. These numbers clearly show that enforced disappearance is widely practiced.

The cases of enforced abduction and disappearance, one of the most shameful human rights violations in our recent history and considered crimes against humanity, have increased significantly since the declaration of the State of Emergency on July 21, 2016. This shows that these actions are due to state policy. Thus, Turkey suddenly sailed into the dark corridors of the 1990s. This situation is also reflected in the report of the UN Working Group on Enforced or Involuntary Disappearances dated 31 July 2019[1].

As emphasized above, enforced abduction and disappearance activities increased rapidly after the coup attempt on 15 July in Turkey. An enforced abduction and disappearance action has been added to these actions. According to the news of the official channel of the state, TRT, Uğur Demirok, who has been missing for 66 days, has been abducted by the National Intelligence Organization (MIT) and brought to Turkey.

Turkish citizen Uğur Demirok, who has been living in Azerbaijan since 2016 and disappeared on September 6. The Azerbaijani authorities informed his family that the date of his abduction was 6 September. It is proudly announced to the press by Turkish authorities that he was abducted and brought to Turkey after 66 days.

Although enforced abduction and disappearance activity is a crime against humanity, it is announced to the public as a legal practice by Turkish authorities in Turkey. Although the act of enforced abduction and disappearance is a crime against humanity, it is announced to the public as a legal practice by the Turkish authorities in Turkey. Therefore, the expression of these actions in the official news agency of the State as if they were lawful actions reveals that these illegal activities are state policy.

[1] https://www.ihd.org.tr/wp-content/uploads/2021/06/26-Haziran-2021-%C4%B0tibariyle-T%C3%BCrkiyede-%C4%B0%C5%9Fkence-Ger%C3%A7e%C4%9Fi.pdf