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.

Tarihin başlangıcından itibaren bugüne değin yaşanmış tecrübelere göre, insanlar için en ideal yönetim şekli hukukun üstünlüğüne dayalı demokrasidir. Ki buna ‘demokratik toplum düzeni’ denmektedir. Bu düzen hakkında, asırların acı, kan ve gözyaşı birikiminden sonra, olmazsa olmaz ilkeler, şartlar, esaslar belirlenmiş ve çerçeveye alınmıştır.

Demokratik toplum düzeninin en belirgin vasıfları, ifade özgürlüğü, basın özgürlüğü, haberleşme özgürlüğü, çoğulculuk, çok renklilik ve çok seslilik, azınlıkların haklarının ve değerlerinin korunması, çoğunluğun tahakkümünün önlenmesi, farklılıkların zenginlik olarak bilinip korunması ve geliştirilmesi, özel hayatın ve aile hayatının gizliliği, kişiliğin dokunulmazlığı ve buna bağlı gerçekleştirilmesi ve geliştirilmesi hakkı, gösteri ve toplantı yapma hakkı, örgütlenme hakkı, vakıf ve dernek kurma hakkı gibi haklarla ve özgürlüklerle donatılmış olmasıdır.

Bunların yanı sıra, yine demokratik toplum düzenin gereği olarak, yasama-yürütme ve yargı kuvvetlerinin birbirinden ayrı ve bağımsız çalışması, yargının bağımsızlığı ve tarafsızlığı, suçların ve cezaların fiilin tahakkukundan önce kanunla belirlenme zorunluluğu, masumiyet karinesi, buna karşılık herkesin kanun önünde eşitliği ve hiç kimsenin masumiyetinin önceden sabitlenmemesi, suçların ve cezaların şahsiliği gibi kavramlar ve müesseseler hayati önemi haizdir.

Bu çerçevenin zorunlu sonucu olarak, hiç kimse masum olduğunu ispatlamak zorunda değildir. Çünkü kural ve karine zaten kişinin masum olmasıdır. Bunun aksini iddia eden ispatlamalı ve delillerini, bulgularını ortaya koymalıdır. Türkiye’de son beş yıldır yaşananlar hakkında sağlıklı ve doğru sonuca ulaşabilmek için bu çerçevenin sürekli göz önünde bulundurulması gerekir.

Hizmet Hareketi masumiyetini ispatlamak zorunda değildir; zaten masumiyeti karinedir. Dahası insanlık için bütün dünyada ürettiği değerler, yetiştirdiği nesiller, bilhassa eğitim, yardımlaşma ve dayanışma alanlarında yaptığı eserler ve çalışmalar, dinler arası diyalog, ihtilafların, çatışmaların önlenmesi, topyekûn barış ve huzur içinde bütün dünya milletlerinin kalkınması, huzur ve refaha kavuşması ve benzeri konular için ürettiği birikim ortadadır.

2.     Hizmet Hareketinin Yapısı ve Faaliyetleri

Hizmet Hareketi cehalet, fakirlik ve ihtilafla mücadele maksadıyla gönüllülerin bir araya geldiği camia olarak tanımlanabilir[1]. Hareketin lideri Fethullah Gülen’in sohbetlerini, vaazlarını dinleyerek etkilenen ve tavsiyelerine uyan insanlar, bilhassa eğitim ve kalkınma ile dinler, kültürler ve medeniyetler arası kaynaşma konularında çok çeşitli faaliyetler yürütmekte, müessesseler işletmektedirler. Hareketin üç temel alanda dünya çapındaki faaliyetleri insanlığın geleceği, huzuru ve refahı için oldukça önemli ve dikkat çekicidir.

2.1. Eğitim ve Kültür

Hizmet hareketi üç temel problem olan cehalet, fakirlik ve ihtilafla mücadelenin öncelikle eğitimle mümkün olabileceğinden hareketle faaliyetlerini bu alandan başlattığı gibi en fazla emek, sermaye ve mesaisini hep bu alana harcamaktadır. 1970 lerin ortalarından itibaren Türkiye’nin İzmir vilayeti ve Ege Bölgesinde öğrenci evi, yurt ve özel okullar hizmete sunarak işe koyulan Hizmet 1990 lardan itibaren yurt dışına açılmıştır. Bu günlerde dünyanın 180 e yakın ülkesinde iki bine yakın eğitim kurumu, yirmiden fazla üniversitesiyle her renkten, ırktan, dinden, dilden gençliğe eğitim vermektedir. Üstelik bu müesseselerin hemen hepsi kısa sürede bulundukları ülkenin, bölgenin en başarılı kurumları haline gelmekte ve pek çok ödülle vitrinlerini donatmaktadırlar. Başta bilim olimpiyatları olmak üzere dünyanın önde gelen bilim ve teknik temalı yarışmalarında isimleri hep üst sıralarda yer almaktadır.

Bu göz alıcı başarının talebi ve rağbeti artırması nedeniyle çoğu yerde okullara giriş imtihana ve yarışmaya bağlıdır. Ve yine bu nedenle hemen her yerde daha fazla okul ve hizmet talebi gelmektedir. Mesela Afrika Birliği ile Afrika’da 1.000 okul açılması için anlaşma imzalanmıştır[2]. Son 5 yıldır Türkiye Cumhuriyeti Hükümeti tarafından soykırıma varan cadı avı uygulamalarına rağmen, dünya çapındaki bu teveccüh ve rağbet devam etmektedir.

Hizmet Hareketi’nin en az eğitim kadar dikkat çeken yatırımları ve faaliyetleri kültür alanındadır. Daha doğrusu Hizmet mensupları eğitimi kültürle alaşımlı bir harmoni halinde sürdürmektedirler. Bu kapsamda en önemli faaliyetleri, “Dünyanın Renkleri-Colors of The World” mottosuyla her yıl düzenlenen ve geleneksel hale gelen Uluslararası Dil ve Kültür Festivali’dir. Bu festivallerde her ülkenin kendi geleneklerinin, dilinin, folklorunun, kültürünün tanıtılması ayrıca ve özellikle önemlidir. Dünya kültür mirasının korunması, geliştirilmesi, gelecek nesillere aktarılması ve bütün dünya milletlerinin barış içerisinde bir arada yaşayabilmesi için bunun değeri ve önemi yadsınamaz.

Eğitim başlığı altında bir başka önemli icraat da akademik ve bilimsel faaliyetler ile yaşayan toplumun güncel problemlerine interaktif katılımla çareler üretme gayretleridir. Bu konuda Gazeteciler ve Yazarlar Vakfı’nın (GYV) faaliyetleri bilhassa kaydedilmelidir. GYV Türkiye’de en soldan en sağa kadar düşünce yelpazesinin bütün renklerinde veya dilimlerindeki uzmanları, bilim insanlarını, aktivistleri, sanatçıları bir araya getirerek ülkenin, toplumun veya insanlığın problemlerine çözüm için pek çok panel, konferans, seminer, sempozyum gibi aktiviteler düzenlemiştir. Zamanla bunlar ‘Abant Platformu’ veya ‘Abant Toplantıları’ unvanıyla meşhur olmuş ve gelenek haline gelmiştir. Her yıl yeni ve ayrı bir mesele bütün teferruatıyla ele alınmış, sonucunda topluma, kamu kurumlarına, bilim camiasına, insanlığa ve ilgili bütün muhataplara çözüm önerileri, teklifler, bulgular, görüşler kamuoyuna sunulmuştur. Sonradan bunlar kalıcı eser haline de getirilmiştir.

2.2. Kalkınma ve Fakirlikle Mücadele

Hizmet Hareketi nazarında eğitimin ardından en fazla üzerinde durulan alan kalkınma ve fakirlikle mücadeledir. Bunun için de bir taraftan dünya ticaretinin geliştirilmesine gayret edilmekte, diğer taraftan da yoksul bölgelere ve topluluklara yardım eli uzatılmaktadır. Bu konuda Hizmet’in öne çıkan üç kurumu, Kimse Yok Mu Derneği ile TUSKON ve Bank Asya özellikle anılmalıdır.

Kimse Yok Mu Derneği Türkiye’de kuruldu. 2007 de Bakanlar Kurulu kararı ile kamu yararına faaliyette bulunan dernekler arasında sayılmış, BM Ekonomik ve Sosyal Konseyi (ECOSOC) Danışman üyeliğine kabul edilmişti. Cadı avı kapsamında kapatılana kadar bu unvanlarını sürdürdü. Dernek, mesela Afrika’da dört sene içinde 3.000’inden fazla kuyu açtı[3]. Erdoğan 2011 Ağustos’unda, televizyon programına telefonla bağlanarak Kimse Yok Mu Derneği’nin yardım kampanyasını desteklemiş ve vatandaşları yardım yapmaya çağırmıştı[4].

Hizmet’in, Kimse Yok Mu Derneği veya irili ufaklı benzer kuruluşları ve oluşumları vasıtasıyla, bundan başka dünya çapında gıda yardımı, giysi ve kıyafet yardımı, Müslümanların oruç tuttuğu Ramazan ayında gıda paketi yardımı, Kurban Bayramı’nda et dağıtımı gibi pek çok faaliyetleri de vardır.

Hizmet gönüllülerinin öncülüğünde kurulan Türkiye İş Adamları ve Sanayicileri Konfederasyonu (TUSKON), 2006-2013 arasında 19 Dünya Ticaret Zirvesi gerçekleştirdi, 40 bini yerli, 30 bini misafir 70 bin iş adamını ticaret yapmak için birbiri ile buluşturdu[5].

Dünya ekonomisine katkı sağlama ve ticaretin geliştirilmesi konusunda önemli hizmetler veren bir başka Hizmet müessesesi de Bank Asya’dır. Cadı avı kapsamında Hükümet tarafından el konulacağı 2015 Mart ayına kadar Türkiye’nin en güçlü bankaları arasında faaliyetini sürdürdü[6].

2.3. Hoşgörü, Diyalog ve Barış

Hizmet felsefesine göre eğitim ve kalkınmayı taçlandıracak olan herkesi kendi konumunda kabul etme, sonrasında herkesle diyaloğa geçme ve karşılıklı değerlerin paylaşılmasıdır. Nihayetinde bunun doğal sonucu, dünya üzerindeki bütün toplumların iletişim ve etkileşim halinde bir harmoni oluşturarak huzur ve barış içende yaşamalarıdır.

Hizmet Hareketi’nin bu sahadaki karnesi de en az diğer ikisi kadar göz alıcı başarılarla doludur. Bu konuda Fethullah GÜLEN Hocaefendi’nin 09.02.1998 tarihinde Papa ile yaptığı görüşme bilhassa belirtilmelidir. Sayın GÜLEN bu görüşmede ‘Müslümanlar, Hıristiyanlar ve Yahudilerin, hiçbir kısıtlama, hattâ vize dahi olmaksızın serbestçe ziyaret edebilecekleri uluslararası bir bölge ilan etme; Üç büyük din mensuplarının iş birliğiyle ilki ABD’de olmak üzere, muhtelif başkentlerde konferanslar düzenleme; Harran’da üç büyük dinin ihtiyaçlarını temin edecek bağımsız bir üniversite kurma ve İslâm ve Hıristiyan dünyasıyla öğrenci değişimi sağlama’ teklifinde bulundu[7]. Hizmet ile Vatikan arasındaki insanlığın ortak geleceği konusunda iş birliği ve yardımlaşma bu görüşmeden sonra devam etmiş ve etmektedir.

Dil ve Kültür Festivallerinin bu başlığa bakan yönü, GYV nın dünya çapındaki çalışmaları, Hizmet bünyesindeki üniversitelerin bu gayeye matuf faaliyetleri de ayrıca belirtilmelidir.

3.     Hizmet Hareketinin Teröre Bakışı

Hizmet Hareketi ilk günden bu yana yukarıda özetlenen cehalet, fakirlik ve ihtilafla mücadele hedeflerine ulaşabilmek için daima ‘müsbet hareket’ düsturu ile ve hukukun içinde kalarak mücadele yolunu benimsemiştir. Bunun en önemli göstergesi de, özellikle son üç yıldır soykırım boyutuna varan zulüm ve hak ihlallerine rağmen hukuk dışı hiçbir uygulamaya girişmemeleridir. Öyle ki bu konuda, soykırım suçlularının, Hizmet mensubuymuş gibi davranarak işledikleri eylemlere karşı bile dikkat etmektedirler.

Pek çok Müslüman aydının, akademisyenlerin ve siyaset camiasının İslamiyet’in demokrasi ile bağdaşıp bağdaşmayacağı konusunda şüpheler ortaya koyduğu, hatta karşı çıktığı dönemde, Fethullah Gülen açıkça demokrasi ve hukukun üstünlüğünden yana tavır almıştır. 29/06/1994 tarihinde Gazeteciler ve Yazarlar Vakfı’nın kuruluş gecesindeki konuşmasında “demokrasiden geriye dönüş yok” demişti[8]. Sayın Gülen 15 Temmuz 2016 darbe teşebbüsünün ertesi günü basına ilk demecinde bu beyanına değinerek, şimdiki hükümet çevrelerinin o dönemde bu söyleminden dolayı kendisini eleştirdiklerini hatırlatmıştır[9]. Fethullah Gülen Hocaefendi bu düşüncesini farklı zamanlarda ve mekanlarda, değişik vesilelerle sürekli ve defalarca tekrarlamış, hep demokrasi ve hukukun üstünlüğü vurgusu yapmıştır.

Fethullah Gülen’nin net tavırlarından birisi de canlı bomba eylemleri ve ABD 11/09/2001 İkiz Kuleler saldırısı[10] veya benzer canlı bomba eylemleri hakkındaki görüşleridir. Gülen, pek çok masum insanın hayatına mal olan ve Müslümanlara veya Müslümanlığa mal edilen her eylem sonrası, gecikmeksizin hep aynı cevap ve tepkiyi vermiştir: “Müslüman terörist, terörist de Müslüman olamaz”[11]

Gülen, hukukun üstünlüğü ve insan hakları[12], cumhuriyet[13], laiklik[14], devlet ve şeriat[15], demokrasi[16], siyaset[17], cihad, terör ve canlı bomba eylemleri[18] gibi kavramlar, konular ve uygulamalar hakkında fikirlerini açıklıkla 50 yıldır hem vaaz ve sohbetlerinde hem de medyada defalarca dile getirmiştir. Görüşlerinde baştan sona hiçbir sapma ve değişiklik de görünmemektedir.

4.     Fethullah GÜLEN ve Kaziyye-i Muhkeme

Fethullah Gülen Hocaefendi hakkında Ankara Devlet Güvenlik Mahkemesi Cumhuriyet Başsavcılığı’nın 31/08/2000 tarih ve 192-141 sayılı iddianamesi ile Ankara 2 Nolu Devlet Güvenlik Mahkemesi’ne (DGM), ‘terör örgütü kurmak ve yönetmek’ iddiası ile 3713 sayılı Kanun 7/1-1 gereği cezalandırılması talebiyle kamu davası açılmış; 2 Nolu DGM yeni çıkan 4616 sayılı Kanun 1/4 gereği ‘kamu davasının kesin hükme bağlanmasının ertelenmesine’ karar vermiştir. Yerel savcının itirazı 1 Nolu DGM tarafından da reddedilip erteleme kararı kesinleşmiştir. Bu arada 4928 sayılı Kanun’la 3713 sayılı Kanun’da yapılan değişiklik üzerine sanık müdafii 07/03/2006 tarihli dilekçe vererek müvekkilinin beraatına karar verilmesini talep etmiştir. Dosya Ankara 11. Ağır Ceza Mahkemesi (AğCM) tarafından ele alınmış, yapılan uyarlama yargılaması sonucu Esas No: 2000/124, Karar No: 2003/20 sayılı kararla beraata hükmedilmiştir.

Hükmün gerekçesinde “sanık ve ilişkilendirildiği kuruluşların anayasal düzeni değiştirme amacının sabit olmadığı, sanığın bu hususa yönelik açık bir beyan ve ikrarının bulunmadığı, böyle bir amacının olduğu iddiasının yorum ve çıkarsamalara dayandığı, bu amacın varlığının kabulü halinde dahi cebir ve şiddet yöntemlerini benimsediği, cebir şiddet kullandığı ve bu konuda müstakil suç teşkil eden herhangi bir eylemde bulunduğunun tesbit edilmediği, bu hususta delil bulunmadığı, aksine devlet yanlısı tutumu nedeniyle dini motifli radikal terör örgütleri tarafından dahi tehdit edildiği, … bu haliyle 3713 sayılı Terörle Mücadele Yasasının 1. maddesinde tarif edilen şekilde bir terör eylemi ve terör örgütünün bulunmadığı, dolayısıyla yasanın 7/1. maddesinde belirtildiği şekilde örgüt kurmasının ve yönetmesinin de söz konusu olmadığı sonucuna varılmıştır” denilmiş ve “3713 sayılı Yasada 4928 sayılı Yasa ile yapılan değişiklik dikkate alınarak, dosya kapsamı ve yapılan yargılama neticesinde sanık F…… G….’ in sübut bulmayan ve unsurları oluşmayan atılı suçtan BERAATINA..karar verilmiştir.”

Hüküm yerel Cumhuriyet savcısı tarafından temyizi edilmiştir. Yargıtay 9. Ceza Dairesi’nin 05/03/2008 tarih ve 60083-1328 sayılı ilamıyla karar onanmıştır. Bu kez Yargıtay Cumhuriyet Savcılığı’nın itirazı üzerine dosya Yargıtay Ceza Genel Kurulu’na (CGK) gelmiş; CGK 28/11/2001 tarih ve Esas No: 2008/82, Karar No: 208/181 sayılı ilamı ile “uyarlama yargılaması statü ve kuralları itibariyle usulen kabulüne olanak bulunmadığından, vaki itirazın ve konu hükmün sair yönleri incelenmeksizin itirazın reddine karar” vermiştir.

Bu durumda, hukuk ve yargılama bilimi gereği, en azından iddianame tarihi olan 31/08/2000 tarihinden önceki eylemler bakımından beraata ilişkin kazıyye-i muhkeme, yani kesin hüküm vardır. Oysa ki özellikle 15 Temmuz 2016 tarihinden sonraki bütün adli ve idari soruşturmalarda, TMBB rapor ve belgelerinde suç ve eylem isnadını 1970 lerden başlatılmaktadır.

Bir kişinin aynı eylem nedeniyle birden fazla yargılanamayacağı mutlak bir kuraldır. Dolayısıyla ‘1970 lerde kurulan ve giderek gelişen örgüt’ kurgusu mantıken ve hukuken boşa düşmektedir.

5.     Yol Ayırımı ve Cadı Avı Başlatılması

Hizmet Hareketi’nin en az yarım asırlık hizmet ve faaliyetlerini, Erdoğan, AKP ve hükümet çevreleri 2013 yılında Gezi Olayları ve bilhassa 17/25 Aralık yolsuzluk operasyonlarına kadar olağanüstü övgülerle destekliyorlardı. Bu tavrın tam aksi yönde birdenbire değişmesinin sebebini tam anlamak için özellikle bu iki olayın yakından irdelenmesi gerekir.

2013 yılı Mayıs ayında Taksim meydanının kenarında bulunan yeşil alana, tarihi topçu kışlasını aslına uygun yeniden inşa etmek bahanesiyle, alış-veriş merkezi (AVM) yapmaya kalkışınca halk karşı koydu. Üstelik tarihi, kültürel ve tabii mirası korumakla görevli kamu idaresi ve mahkeme yeşil alanın korunması yönünde karar vermelerine rağmen iktidar inşaat yapmakta ısrar edince, olaylar büyüdü. Aktivistler oturma eylemleri başlattılar, hatta çadır kurup gece-gündüz nöbet tutmaya başladılar[19]. İş makinaları çadırları kaldırmak ve aktivistleri dağıtmak maksadıyla parka girdi, karşı koyanlara polis orantısız güç kullandı. Başbakan Erdoğan yatıştırıcı ve uzlaştırıcı tavır ve aktivistleri dinlemek, çözüm üretmek yerine gerilimi tırmandırıcı söylem ve politikaları tercih etti. Olaylar kısa sürede bütün ülkeye sıçradı ve yayıldı. İstanbul’da küçük bir yeşil alanı korumak için başlayan eylemler bütün Türkiye’de hükümeti protesto gösterilerine dönüştü. Sosyal medya üzerinden örgütlenme, tencere-tava eylemleri, duran adam eylemleri, adalet yürüyüşü, kırmızılı kadın gibi sembolleşen eylemler ve protesto yöntemleri gelişti[20].

Aynı yıl Aralık ayında Türkiye’de büyük çaplı yolsuzluk ve rüşvet soruşturmalarıyla sarsıldı. Sonradan ‘17/25 Aralık Operasyonları’ unvanıyla ünlenen soruşturmalarda hükümete yakın pek çok isimlerin haricinde kabineden dört bakan ve bazı hükümet yetkililerinin, yakınlarının, oğullarının adları geçiyordu. İran asıllı Reza Zarrab isimli iş adamı vasıtasıyla uluslararası kara para aklama, altın kaçakçılığı, silah kaçakçılığı, İran’a yönelik Birleşmiş Milletler ambargosunun delinmesi, Suriye’de çatışan gruplara silah satışı, Afrika’da yasa dışı örgütlere silah satışı, ihalelerde ve kamu hizmetlerinde büyük miktarlarda rüşvet alımı ve yolsuzluk yapılması gibi oldukça vahim ve kapsamlı iddialar basına yansıdı[21]. Soruşturmalarda da en çok yolsuzluk ve rüşvetin Çevre ve Şehircilik Bakanlığı’nda döndüğü belirtiliyordu. Çevre ve Şehircilik Bakanı Erdoğan Bayraktar bir TV haber programına canlı bağlanarak, istifa ettiğini duyurdu. Ayrıca bütün yapılanlardan Başbakan Recep Tayyip Erdoğan’ın da haberinin olduğunu belirterek O’nun da istifa etmesi gerektiğini belirtti[22].

Erdoğan ise bunun kendine karşı yapılan bir ‘yargı darbesi’ olduğu iddiasıyla[23] büyük bir karalama kampanyası başlattı. Bizzat Başbakan cadı avı yapacaklarını söyledi[24]. Bu safhadan sonra Parlamentoda çoğunluk elinde olduğundan akıl almaz değişiklikleri gerçekleştirdi. Örneğin ‘soruşturmanın gizliliği’ kuralı mevzuat değişikliği ile kaldırıldı, cumhuriyet savcılarının bir soruşturmaya başladıklarında bunu mülki amire bildirme zorunluluğu getirildi[25]. Süreçte 17/25 soruşturmalarında görev alan bütün güvenlik görevlileri, hakimler, savcılar ve memurlar ihraç edildi ve terör örgütü üyesi olmakla suçlanıp hapsedildi.

Diğer taraftan Reza Zarrab ile Halk Bankası’nın eski genel müdür yardımcısı Hakan Atilla[26] hakkında ABD de, İran’a yönelik ambargonun delinmesi, kara para aklama, banka dolandırıcılığı dahil pek çok suçlama ve iddialarla yargılama yapıldı. Zarrab kendisine isnat edilen 7 suçlamayı da kabul edip savcılıkla iş birliğine gitti[27]. Soruşturmada görev alan FBI görevlilerine başarılarından ötürü ödül verildi. Görevliler Erdoğan veya adamları tarafından tehdit edildiklerini söylediler[28]. Neticede 17/25 Aralık soruşturmalarının gerçekliği Türkiye’den bağımsız ABD yargısı tarafından teyit edilmiş oldu.

6.     15 Temmuz 2016 Darbe Teşebbüsü

6.1. Darbe Teşebbüsü Öncesi Tarafların Durumu

Önemli bir konu da 15 Temmuz 2016 arifesinde çatışan tarafların durumunun göz önünde bulundurulmasıdır.

Erdoğan Gezi Olayları sırasında, yüz kadar sarhoş ve üzerleri çıplak göstericinin, başörtülü bir yakınının üzerine işediklerini iddia etti[29]. Sonradan kamera kayıtlarından bunun gerçek dışı olduğu anlaşıldı[30]. Yine göstericilerin Dolmabahçe Camii’ne ayakkabılarıyla girip içerde içki içtiklerini iddia etti ve görüntüleri basınla paylaşacaklarını belirtti[31]. Ancak bu iddianın da gerçek dışı olduğu anlaşıldı, hatta basılmış bira kutusuna ilişkin görüntünün de cami boşaltıldıktan sonra, ertesi günü alındığı ileri sürüldü[32]. Erdoğan’ın vaat ettiği içki içildiğine dair görüntüler bir türlü basına ve kamuoyuna sunulmadı, fakat olay sırasında orada bulunan ve “ben din adamıyım, yalan söyleyemem, içki içildiğini görmedim” diyen müezzin sürüldü[33].

31/05/2010 gece yarısı İsrail ordusu uluslararası sulardaki insani yardım malzemesi taşıyan Mavi Marmara gemisine saldırdı ve 10 kişi şehit oldu[34]. Fethullah Gülen İsrail’le uzlaşma yolunu salıklamış ve böyle bir hareket için otoriteden izin almanın lüzumunu açıklamıştı[35]. Erdoğan ise 17/07/2014 de Gülen’in bu açıklamasını eleştirerek “otorite bizsek, biz zaten izni verdik” dedi. Fakat yaklaşık iki yıl sonra 29/06/2016 da ise “böyle bir insani yardımı götürmek için günün başbakanına mı sordunuz?” dedi[36].

İzmir’in Urla ilçesinde birinci dereceden SİT alanı üzerine yapılan kaçak villalara inşaatı soruşturmasında villaların Erdoğan ailesine ait olduğu iddia edildi, ses kayıtları internete düştü. Erdoğan inşaat alanının 35 yıllık eski bir yerleşim alanı olduğunu söyledi[37]. Ancak Google Earth programı üzerindeki basit bir araştırmayla bile villaların iki yıllık olduğu ortaya çıktı[38]. Villalar hakkında işlem yapan mahkeme heyeti, görev süreleri dolmadan ve istekleri de olmadığı halde tayin edildiler[39]. Erdoğan’ın benzer şekilde Çatalca’da ve Bodrum’da da villalarının olduğu iddia edildi[40].

24/11/2015 de Suriye’de iki Rus uçağı Türk Hava Kuvvetleri tarafından sınır ihlali yaptıkları gerekçesiyle düşürüldü. Başbakan Erdoğan düşürülmesi emrini kendisinin verdiğini söyledi. Fakat iki yıl sonra olayın Türk pilotların hatasından kaynaklandığını iddia etti[41].

Bütün bunların hepsini aşkın, darbe girişimi arifesindeki üç konu ise, Erdoğan’ın Cumhurbaşkanı olabilmek için Yüksek Seçim Kurulu’nu sunduğu üniversite diplomasının sahte olduğu iddiası[42], yukarıda bahsi geçen ABD deki Reza Zarrab yargılaması ve Rusya’nın BM Güvenlik Konseyi’ne ‘Türkiye’nin, Suriye’deki yasa dışı örgütlere yüklü miktarda silah ve mühimmat sağladığı, ayrıca 2 milyon dolarlık kimyasal madde gönderdiği, IŞİD’in ana silah ve askeri teknoloji tedarikçisi olduğu’ iddiasına ilişkin dosya sunmasıdır[43].

Üstüne üstlük, Erdoğan’ın Uluslararası Ceza Mahkemesi’nde (UCM) yargılanmasının usulü ve yöntemi tartışılmaktaydı[44]. Suriye’li Kürt liderlerden Salih Müslim 06/07/2016 da yayınlanan röportajında “Cumhurbaşkanı Erdoğan’ın UCM de yargılanmasına neden olacak bütün belgeler ABD ve Rusya’nın elinde” olduğunu açıkladı[45].

Erdoğan ve hükümetin bu pozisyonuna karşılık Fethullah Gülen Hocaefendi ve Hizmet Hareketi yukarıda kısmen ve kısaca özetlenen bütün dünya üzerindeki imrendirici ve iftihar vesilesi faaliyetlerine devam ediyordu.

15 Temmuz darbe teşebbüsünün hemen arifesinde yapılan 14. Dil ve Kültür Festivali Mayıs-Haziran aylarında 33 ayrı başkentte düzenlendi, 160 ülkeden 2.500 yarışmacı katıldı[46].  Festivalde slogan veya tema olarak “Colours of the World / Dünyanın Renkleri” mottosu kullanıldı[47]. Birleşmiş Milletler Genel Kurul Salonu[48], Avrupa Konseyi binası[49] başta olmak üzere pek çok yerde ülkelerin en itibarlı önemli mekânlarında gösteri sergilediler.  Birleşmiş Milletler Genel Sekreteri Ban Ki-moon[50], USA Başkanı Barack Obama[51], Fransa Cumhurbaşkanı François Hollande[52], Belçika Başbakanı Charles Michel[53] gibi devlet adamları ve liderler övgülerle destek verdiler ve himaye ettiler. Belçika’nın başkenti Brüksel merkez tren istasyonunda, dünyanın bütün renklerinden müteşekkil çocuklar, barış ve birlikte yaşama kültürü adına, sembolik olarak çok büyük anlam ifade eden bir gösteri sergilediler[54]. Birkaç ay önce aynı tren istasyonu ve havaalanında canlı bomba eylemiyle 34 masum ve sivil kişi hayatını kaybetmiş, iki yüze yakın kişi yaralanmıştı[55]. Hiç şüphesiz verilen mesaj çok anlamlıdır. Dünyanın Renkleri, Belçika Dışişleri Bakanı Didier Reynders’in misafiri oldu, Dışişleri Konutu olarak kullanılan tarihi Egmont Sarayı’nda kahvaltı yaptılar[56]. Eurovision 2016 birincisi Jamala da Türkçe Olimpiyatları’na katılarak birincilik şarkısını seslendirdi[57]. Kuşkusuz bu çaptaki bir başarı, itibar ve şeref yazılı tarihte hiçbir insana ve topluluğa nasip olmamıştır. Fethullah Gülen ve Hizmet Hareketi 15 Temmuz’a bu durum ve şartlarla giriyordu.

6.2. Darbe Teşebbüsü ve Tarafların Tepkileri

Türkiye 15 Temmuz 2016 akşam saatlerinde İstanbul Boğaziçi Köprüsü’nün sadece bir yönü askerlerce trafiğe kapatılarak darbe teşebbüsünde bulunulduğu haberleriyle sarsıldı. Devletin başkenti Ankara’ydı ve ülke daha önce pek çok darbe tecrübesi yaşamış, hiçbiri İstanbul’da başlatılmamıştı. Tuhaflıklar bununla da sınırlı değildi. Olaylar gerçek bir darbe teşebbüsünden çok bir tiyatro gösterisini andırıyordu. Nitekim dünya liderlerinden bu yönde açıklama yapanlar oldu. Yer darlığı nedeniyle buruya sıralamamız imkânsız olan pek çok tutarsızlığı ve çelişkiyi ulusal ve/veya uluslararası pek çok gazeteci, araştırmacı, uzman, devlet adamı, istihbaratçı, siyasetçi, asker dile getirdi, ortaya koydu.

Erdoğan daha olaylar devam ederken, İstanbul Atatürk Havalimanı’nda yaptığı açıklamada darbe girişiminin, Hizmet Hareketi’ni kastederek, Paralel Devlet Yapılanmasının bir teşebbüsü olduğunu açıkladı. ‘Bunları ordudan temizleyebilmek için Allah’ın kendilerine bir lütfu olduğunu, bu yapının silahlı terör örgütü olduğunun da böylelikle açığa çıktığını’ söyledi[58]. Halbuki daha herhangi bir soruşturmanın sonuçlanacağı veya bir kanaat oluşacak zaman dahi geçmediği gibi, Ankara’da uçaklar hala şehir üzerinde uçuyordu. Üstelik sonraki günlerde Erdoğan, darbe teşebbüsümü ilk önce saat kaçta, nasıl ve kimden öğrendiğine dair birbiriyle çelişen tam 5 ayrı beyanda bulunacaktı[59].

Fethullah Gülen ise, darbe teşebbüsünden saatler sonra gazetecilerle röportajında, yaşananların gerçek bir darbeden çok, Erdoğan’ın muhaliflerini kolayca tasfiye edebilmesi için hazırlanmış bir filme ve senaryoya benzediğini açıkladı. Uluslararası bir organizasyonun konuyu tahkike almasını teklif etti, çıkacak sonuca yalan bile olsa razı olacağını belirtti[60]. Bir yıl sonra aynı teklifini tekrarladı ve ayrıca “Bu darbe tiyatrosunda yer alanların içinde Hizmet’e sempati duyan birileri olup olmadığını bilmiyoruz. Bunların arasında Hizmet’e sempati duyanlar varsa Hizmet’in temel değerlerine ihanet etmiş demektir” açıklaması yaptı[61].

Erdoğan veya hükümet, üç yıl geçmesine rağmen, 15 Temmuz için uluslararası komisyon teklifine de bugüne değin cevap vermiş değil.

7.     Sonuç ve Teklifler

Demokrasi ve hukukun üstünlüğü ilkelerine istinat etmiş devlet düzeni, halihazırda insanlığın ulaşabildiği en mükemmel sistemdir. Hiç şüphesiz bu sistem daha ileri gidecek ve geliştirilecektir. Nitekim günümüzde, temel insan hakları ve özgürlüklerinin korunmasının, devletlerin hükümranlık haklarının önüne geçtiği artık ittifakla kabul gören bir anlayıştır.

Diğer taraftan küreselleşen dünyada artık bir yerdeki kargaşa ve hukuksuzluk lokal olmaktan çıkmakta ve bütün dünyayı etkilemektedir.

Erdoğan ve rejiminin son üç yıldır özellikle Hizmet Hareketi mensuplarına yönelik uyguladığı hak ihlalleri soykırım boyutuna ulaşmıştır.

İnsan hakları aleyhine Türkiye’de oluşan girdabın, önü alınmazsa bütün dünyayı yutacak bir karadeliğe dönüşmesi kaçınılmazdır.

İkinci dünya savaşında yaşanan hak ihlalleri, acılar, gözyaşları, kan seylapları üzerine, insanlığın şerefini, haklarını, özgürlüklerini korumak ve geliştirmek üzere kurulan Birleşmiş Milletlerin mercileri ve makamları, Türkiye’deki insan hakları ihlalleri konusunda daha fazla inisiyatif almalıdırlar.

[1] https://fgulen.com/tr/fethullah-gulen-kimdir/gulen-hakkinda/aydinlarin-gozuyle-fethullah-gulen-hocaefendi/45275-donald-daniel

https://fgulen.com/tr/turk-basininda-fethullah-gulen/fethullah-gulen-hakkinda-kose-yazilari/2010-kose-yazilari/18514-Dr-Iman-Kandil-Turkiyede-Sahabe-Ruhunun-Ihyasi

[2] http://www.shaber3.com/afrikada-kimse-yok-mu-araciligiyla-1000-okul-acacak-haberi/1108848/

[3] https://www.haberler.com/kimse-yok-mu-nun-selsebil-kuyulari-3-bini-gecti-7965759-haberi/

[4] http://www.yenicaggazetesi.com.tr/erdoganin-kimse-yok-mu-dernegine-destek-goruntuleri-ortaya-cikti-451v.htm

[5] https://www.haberler.com/tuskon-un-ticaret-koprulerinden-30-milyar-dolar-5555077-haberi/

[6] http://www.bankasya.com.tr/docs/pdf/2015_1_donem_solo.pdf

[7] https://media.turuz.com/her_konu-2019-6/5879-Bir_Portre_Denemesi-M.Fethullah_Gulen-Ali_Unal-1993-223s.pdf

[8] https://books.google.de/books?id=Xva_CwAAQBAJ&pg=PT251&lpg=PT251&dq=fethullah+g%C3%BClen+gazeteciler+ve+yazarlar+vakf%C4%B1nda+konu%C5%9Ftu&source=bl&ots=1gqHkwktIQ&sig=uRX9iBtnmvo2i8zcMBjMgumXvCY&hl=tr&sa=X&ved=2ahUKEwjQ5OGo4vfdAhVvoosKHaRBDfQ4ChDoATADegQIBhAB

[9] https://www.youtube.com/watch?v=ynuQUKinW-0

[10] http://www.hurriyet.com.tr/gundem/musluman-terorist-terorist-musluman-olamaz-63617

[11] https://fgulen.com/tr/fethullah-gulenin-kursu-akademi-yazilari/fethullah-gulen-2001-kursuleri/11901-Fethullah-Gulen-Musluman-Terorist-Olamaz

[12] https://fgulen.com/tr/fethullah-gulen-kimdir/fethullah-gulenin-gorusleri/18889-Fethullah-Gulen-Insan-Haklari

[13] https://fgulen.com/tr/fethullah-gulen-kimdir/fethullah-gulenin-gorusleri/223-Fethullah-Gulen-Ataturk-ve-Cumhuriyet-

[14] https://fgulen.com/tr/fethullah-gulen-kimdir/fethullah-gulenin-gorusleri/222-Fethullah-Gulen-Laiklik

[15] https://fgulen.com/tr/fethullah-gulen-kimdir/fethullah-gulenin-gorusleri/227-Fethullah-Gulen-Devlet-ve-Seriat

[16] https://fgulen.com/tr/fethullah-gulen-kimdir/fethullah-gulenin-gorusleri/221-Fethullah-Gulen-Demokrasi

[17] https://fgulen.com/tr/fethullah-gulen-kimdir/fethullah-gulenin-gorusleri/3630-Fethullah-Gulen-Siyaset

[18] https://fgulen.com/tr/fethullah-gulen-kimdir/fethullah-gulenin-gorusleri/225-Fethullah-Gulen-Cihad-ve-Teror

[19] https://tr.wikipedia.org/wiki/Gezi_Park%C4%B1_protestolar%C4%B1

[20] https://www.keele.ac.uk/journal-globalfaultlines/publications/geziReflections.pdf

[21] https://tr.wikipedia.org/wiki/17_Aral%C4%B1k_yolsuzluk_ve_r%C3%BC%C5%9Fvet_soru%C5%9Fturmas%C4%B1

[22] https://www.youtube.com/watch?v=jreStP2jmOI

https://www.birgun.net/haber-detay/her-seyi-basbakan-in-emri-ve-bilgisiyle-yaptik-72741.html

[23] http://www.haber7.com/siyaset/haber/1108231-erdogan-kula-kulluk-olmaz-allaha-kul-olun

[24] http://www.aljazeera.com.tr/haber/erdogan-bu-cadi-avini-yapacagiz

http://t24.com.tr/haber/erdogan-cadi-aviysa-biz-bu-cadi-avini-yapacagiz-bunu-da-bilin,258112

[25] http://www.resmigazete.gov.tr/eskiler/2013/12/20131221.pdf

[26] https://bianet.org/bianet/kriz/197220-hakan-atilla-ya-32-ay-hapis-cezasi-verildi

[27] http://www.haber7.com/dis-politika/haber/2515349-riza-sarraf-davasinda-juri-kararini-verdi/?detay=1

[28] http://bianet.org/bianet/kriz/200295-sarraf-i-yakalayan-fbi-ajanlarina-odul-toreni-erdogan-yonetimi-ajanlari-tehdit-etti?bia_source=rss

[29] http://www.cumhuriyet.com.tr/video/video/227773/Erdogan__Kabatas_yalani_ni_devam_ettirdi.html

[30] https://onedio.com/haber/polisin-kabatas-raporu-ustu-ciplak-kimse-yok-amirim–467499

http://t24.com.tr/haber/kabatasta-yalan-kesin-rivayet-muhtelif-iste-emniyetten-elif-cakira-zehra-gelin-metinleri,290216

[31] https://www.youtube.com/watch?v=rP6W_h8xbDc

[32] https://www.youtube.com/watch?v=j9cvCUubGKk

[33] http://t24.com.tr/haber/camide-icki-ictiler-iddiasini-yalanlayan-muezzin-tesekkur-beklerken-tenzil-edildim,277963

[34] https://www.timeturk.com/5-yil-once-mavi-marmara-da-ne-oldu/haber-108512

[35] https://www.ntv.com.tr/dunya/fethullah-gulen-israilden-izin-almaliydilar,kIC_HTknIEavwlzh-VOxdg

[36] https://www.youtube.com/watch?v=9OX8IsUsNKQ

[37] https://www.youtube.com/watch?v=mBDkEqq5ouM

[38] https://www.birgun.net/haber-detay/google-earth-in-gordugu-erdogan-in-urla-villalarini-savcilik-goremedi-73091.html

[39] https://www.youtube.com/watch?v=ZlAd81QZR_s

[40] https://www.ulusal.com.tr/gundem/iste-erdogan-ailesinin-catalca-villalari-h21546.html

[41] https://www.youtube.com/watch?v=vi23YRtS6_E

https://www.youtube.com/watch?v=sH07zjhHd8U

[42] https://odatv.com/erdoganin-diplomasi-sahte-diyorum-niye-beni-mahkemeye-vermiyor-0406151200.html

https://www.youtube.com/watch?v=9dPj0o9PAJY

https://www.abcgazetesi.com/arsiv/firat-belgelerle-anlatti-tayyip-erdoganin-diplomasi-yoktur/haber-18161

[43] https://odatv.com/rusya-turkiye-isid-belgelerini-bmye-sundu-0104161200.html

[44] https://m.bianet.org/bianet/siyaset/174199-cumhurbaskani-erdogan-ve-uluslararasi-ceza-mahkemesi

[45] http://www.cumhuriyet.com.tr/haber/dunya/563380/Salih_Muslim__Erdogan_i_UCM_de_yargilatacak_belgeler_ABD_ve_Rusya_da.html

[46] http://www.shaber3.com/160-ulkeden-2-500-ogrenci-costuracak-haberi/1256967/

[47] https://i.ytimg.com/an_webp/sBJQ93uiMB4/mqdefault_6s.webp?du=3000&sqp=CMrQ0t0F&rs=AOn4CLDga6yXyLL1-SEKP7QGcLsSsOG60A

[48] https://www.youtube.com/watch?v=qkQMXTDfHpg

[49] https://www.youtube.com/watch?v=Ph7blwY1qYI

[50] https://www.youtube.com/watch?v=epTFVNEJERQ

[51] https://www.youtube.com/watch?v=3paNjUg4FVU

[52] http://www.bagimsizgazete.com/fransa-cumhurbaskani-hollandeden-turkce-olimpiyatlarina-mesaj/

[53] https://i.ytimg.com/an_webp/cK5IMuXLyNk/mqdefault_6s.webp?du=3000&sqp=CK_G0t0F&rs=AOn4CLCX595CefK3f7jLHgMMRom52Pf2AQ

[54] http://arsiv.yenihayatgazetesi.com/19508-19508

[55] http://www.milliyet.com.tr/bruksel-havalimaninda-patlama/dunya/detay/2213893/default.htm

[56] https://www.youtube.com/watch?v=pR_SOT1gW4w

[57] http://www.shaber3.com/eurovision-1-si-jamala-surpriz-yapti-haberi/1258076/

[58] https://www.youtube.com/watch?v=lO-3i5OduwI

[59] http://www.tr724.com/bunlari-da-ortaya-cikarsana-selvi/

[60] https://www.youtube.com/watch?v=ynuQUKinW-0

[61] http://www.tr724.com/fethullah-gulen-15-temmuz-erdogan-avanesi-tarafindan-kurgulanmis-haince-bir-senaryoydu/

Views adopted by the Committee under the Optional Protocol, concerning communication No. 2980/2017*,**,***

Communication submitted by:                     İsmet Özçelik, Turgay Karaman and I.A. (represented by counsel, Walter Van Steenbrugge)

Alleged victims:                                               The authors

State party:                                                      Turkey

Date of communication:                                12 May 2017 (initial submission)

Document references:                                               Decision taken pursuant to rules 92 and 97 of the Committee’s rules of procedure, transmitted to the State party on 19 May 2018 (not issued in document form)

Date of adoption of views:                            26 March 2019

Subject matter:                                                Arbitrary arrest and detention; access to justice

Procedural issues:                                          Exhaustion of domestic remedies; level of substantiation of claims

Substantive issues:                                         Right to life; torture and ill-treatment; arbitrary arrest and detention; conditions of detention; right to a fair trial; derogation under article 4 of the Covenant

Articles of the Covenant:                              4, 6, 7, 9, 10 and 14

Articles of the Optional Protocol:               1, 2 and 5 (2) (b)

1.1 The authors of the communication are İsmet Özçelik, Turgay Karaman and I.A., nationals of Turkey born in 1959, 1974 and 1978, respectively. The authors were removed from Malaysia to Turkey on 12 May 2017. They claim a violation of their rights under articles 6, 7, 9, 10 and 14 of the Covenant. The Optional Protocol entered into force for the State party on 24 February 2007. The authors are represented by counsel, Mr Walter Van Steenbrugge. The State party gave notice to the Secretary-General of a derogation under article 4 of the Covenant on 2 August 2016. On 9 August 2018, the State party notified the Secretary-General that the State of Emergency had ended as of 19 July 2018 and that the derogation had been terminated accordingly.

1.2 In the initial complaint of 12 May 2017, family members of the authors claimed that the authors were being held in incommunicado detention at an unknown location in Turkey and were at risk of being subjected to torture.[1] They requested the Committee to issue interim measures consisting of a request to the State party to ensure that they were not arbitrarily detained or tortured pending the examination of their complaint by the Committee. On 19 May 2017, pursuant to rule 92 of its rules of procedure, the Committee, acting through its Special Rapporteur on new communications and interim measures, requested the State party to take all necessary measures to confirm the authors’ whereabouts and to put them immediately under the protection of the law; to officially inform the Committee, and the authors’ family and representatives of  their whereabouts; to take all measures necessary to enable the authors to be in contact with their relatives; to promptly bring the authors before a judge and give them access to a lawyer of their choice.

1.3 On 31 October 2017, the Committee, acting through its Special Rapporteur on new communications and interim measures, rejected the State party’s request to lift interim measures. The Committee requested that the State party take all measures necessary to promptly bring the authors before a judge and give them access to a lawyer of their choice, to provide the authors with prompt access to appropriate and adequate medical care, and to ensure that the authors were authorized to communicate with and be visited by their families, counsel or any other person of their choice. Pursuant to rule 97 (3) of the Committee’s rules of procedure, the Committee also denied the State party’s request for the admissibility of the communication to be examined separately from the merits.

1.4 On 25 September 2017, I.A. withdrew his complaint before the Committee. On 27 February 2018, the State party requested the complaint as it pertains to him to be discontinued.

The facts as submitted by the authors

2.1 The authors are considered to be connected to the Gülen movement by Turkish authorities. In 2017, they were residing in Malaysia. They submit that they were unlawfully deprived of their liberty under Malaysian anti-terrorism legislation during the first week of May 2017, by individuals acting under the control or instructions of Turkish authorities.

2.2 At the time of their submission of the communication before the Committee, Turgay Karaman and İsmet Özçelik had both lived in Malaysia for 13 years. Turgay Karaman was the principal of Time International School, a school inspired by the teachings of Fethullah Gülen. On 2 May 2017, he was kidnapped in Malaysia because of his affiliation with the Gülen movement. CCTV footage revealed that he was forced into a car by five unidentified persons in an underground parking garage. His family quickly discovered that he could not be reached and they alerted the local police and the UN office in Kuala Lumpur. İsmet Özçelik, an academic, was at this time awaiting resettlement by UNHCR after having previously been the victim of an attempted abduction from his son’s home in Kuala Lumpur, when unidentified armed persons, who appeared to be linked to Malaysian security services, attempted to kidnap him and send him to Turkey. The local police intervened and stopped the rendition. He was detained for a period of 50 days before Malaysian authorities decided to release him pending trial. On 4 May 2017, he was once again deprived of his liberty by Malaysian police.

2.3 Gradually, it became clear to the authors’ family members that the authors were detained at the police headquarters in Kuala Lumpur. The authors did not have access to a lawyer or their casefile. Their Malaysian lawyer immediately filed a request to obtain such access. On 9 May 2017, brief contact between the lawyer and the authors was allowed. The request for access to the authors’ casefiles was however denied.

2.4 On 12 May 2017, the authors were removed to Turkey despite the fact that an extradition hearing had not been held and no judicial decision to that effect had been taken. Upon return to Turkey, the authors were held in incommunicado detention at an unknown location.

The complaint

3.1 At the time of the initial submission, the authors claimed that, as detainees, they were at an imminent risk of being tortured and ill-treated, in violation of their rights under articles 6, 7, 9 and 10 of the Covenant. They noted that they were considered to be connected to the Gülen movement, which has been designated as a terrorist organization in the State party, and that cases of torture and abuse had frequently been documented with regard to individuals alleged to be associated with the movement.^[2]

3.2 The authors further claimed that their rights under article 14 of the Covenant had been violated as they were held in incommunicado detention in Turkey at an unknown location and were deprived of their right to a fair trial. The only information the authors’ relatives had received on their whereabouts was that they had been interrogated by the anti-terror unit of the Ankara Police Department on 14 May 2017. Their relatives did not have any information as to where the authors were detained or whether they had been brought before a judge or had access to a lawyer and their casefile.

3.3 On the 25 September 2017, in their comments on the State party’s observations on the admissibility of the complaint, the authors provided further information on the complaint. They argue that they have been arbitrarily and unlawfully deprived of their liberty in violation of their rights under article 9 of the Covenant. They claim that they were removed from Malaysia without an extradition request having been made; that  Turkish authorities have not informed them of the charges against them; that it took the Turkish authorities 19 and 21 days respectively to bring them before a judge; that they have not had the possibility to re-appear in person or by a lawyer before a court to have their detention reviewed; and that they do not have access to their casefiles.

3.4 The authors claim that they have been subjected to ill-treatment in violation of their rights under article 7 of the Covenant. İsmet Özçelik informed his counsel that he had been subjected to ill-treatment, that violence had been used against him and that his family had been threatened. Due to this ill-treatment, his health problems – in particular his heart condition – have drastically worsened. Turgay Karaman has also been subjected to ill-treatment and torture. The authors claim that they have also been threatened with solitary confinement.

3.5 In their submission of 25 September 2017, the authors provide further information as to their claims under article 10 of the Covenant. They claim that their families were not informed of their prison transfers and that they are detained in a prison far from their families’ hometown. Contact with their families is rendered so difficult and burdensome that they rarely have the opportunity to communicate with them, despite having made official applications for telephone conversations with family members. They also claim that they were not allowed to receive clothes from their families for a period of three months and that they were refused adequate medical care. They are kept in over-crowded cells, which are intended for a maximum of 20 persons but in which 26 persons are held. They have been deprived of basic access to food, hygienic conditions and recreation.

3.6 As to their claim under article 14 of the Covenant, the authors claim that they have not been informed of the charges against them and that they have not had access to prompt legal assistance. The first time they were allowed to consult with their counsel was 13 days (İsmet Özçelik) and 17 days (Turgay Karaman) after their arrest. Additionally, they have not been allowed access to their case files and have only been brought before a judge once.

State party’s observations on admissibility

4.1 On 19 July 2017, the State party submitted its observations on the admissibility of the communication. The State party submits that the communication is inadmissible on grounds of non-exhaustion of domestic remedies under article 5 (2) (b) of the Optional Protocol. It further submits that the authors’ claims under articles 9, 10 and 14 are inadmissible as the State party has made a derogation under article 4 of the Covenant, which has been duly notified to the Secretary-General.

4.2 The State party notes that as per findings by its domestic authorities, the Gülen movement or “the Fetullahist Terrorist Organization/Parallel State Structure (FETÖ/PDY)” is an armed terrorist organization established by Fetullah Gülen with the aim of overthrowing the government. It notes that the National Security Council of Turkey has established, in a number of decisions, that FETÖ/PDY is a terrorist organization that constitutes a threat to national security and which was responsible for the 15 July 2016 coup attempt in the State party. It notes that a nationwide state of emergency was declared as of 21 July 2016. The State party notes that in a notification of derogation under article 4 of the Covenant, dated 21 July 2016, it informed that, as a consequence of the state of emergency, measures taken could involve derogations from obligations under articles 2 (3), 9-10, 12-14, 17, 19, 21-22 and 25-27 of the Covenant, as permissible under article 4 of the Covenant.[3] The State party submits that the authors’ claims under articles 9, 10 and 14 fall within the scope of the notification of derogation. The State party submits that these claims should therefore be found to be inadmissible. It argues that in accordance with article 4, the decree laws issued and measures taken after the declaration of the state of emergency were taken only to the extent that they were strictly required by the exigencies of the situation and proportionate to the crisis faced by the authorities. It further notes that the measures were only to be in force during the state of emergency, and thus temporary in nature.

4.3 The State party notes that numerous arrests and custody proceedings were initiated following the coup attempt. It provides information on the decree laws enacted following the declaration of the state of emergency. The maximum duration of police custody under the decree laws was raised to 30 days by Decree Law No. 667 in order to ensure that effective investigations were conducted. Later on, considering the changing circumstances, the measure of extended police custody periods was reviewed. With Decree Law No. 684, the maximum duration of police custody was reduced to seven days. It can be extended for an additional seven days by decision of a public prosecutor. The order of custody can be appealed before a criminal court by the person in custody, his or her defense counsel or legal representative, spouse or first to second-degree relatives. Legal assistance is provided during police custody and health reports are issued upon entry and release.

4.4 As concerns the specific circumstances of the authors’ case, the State party notes that an investigation is still pending before the Ankara Chief Public Prosecutor’s Office against the authors on grounds of being members of an armed terrorist organization. A decision of restriction was taken as concerns the investigation file. An arrest warrant was issued against İsmet Özçelik on 29 August 2016 by the Sarayönü Criminal Magistrate’s Office. An arrest warrant was issued against Turgay Karaman on 21 March 2017, by decision of the Ankara 2^nd Criminal Magistrate’s Office. The arrest warrants were issued under article 314 (2) of the Criminal Code as the authors were suspected of being members of an armed terrorist organization. The authors were taken into custody upon their arrival in Turkey on 12 May 2017. On 18 May 2017, the custody period was extended for an additional seven days upon the instruction of the Public Prosecutor. During the custody period, the authors were notified of their rights. The authors’ relatives were informed of their arrest on 12 May 2017. On 17 May 2017, upon his request, İsmet Özçelik was provided with counsel appointed from the Bar Association. He met with his lawyer on the same date and his statement was taken by law enforcement officials in the presence of his counsel. On 19 May 2017, Turgay Karaman likewise met with his counsel, at which time his statement was taken by law enforcement officials in the presence of his counsel.

4.5 The authors were held in custody between 12 and 23 May 2017. They were medically examined before and after the detention and medical reports were issued. On 23 May 2017, the authors were brought before the Ankara 5^th Criminal Magistrates’ Office in the presence of their counsel and were detained by order of the Court. They were taken to Sincan T-Type Closed Prison where they were held until 3 June 2017, when they were transferred to Denizli T-Type Closed Prison, for security and capacity reasons. They are currently held in Denizli prison.

4.6 During their detention period in Sincan prison, Turgay Karaman and İsmet Özçelik had access to emergency health services 24 hours a day. They could watch television in the ward, there was a toilet, a bathroom and kitchen facilities. They had unlimited access to open air and sunlight. Mondays were the visiting day at the prison. However, their relatives did not visit the authors. Despite having the right to do so, the authors did not make any phone calls, or send or receive letters. İsmet Özçelik met with his lawyer on 28 May 2017 for 57 minutes and on 30 May 2017 for 66 minutes. Turgay Karaman met with his lawyer on 26 May 2017 for 30 minutes. In Denizli prison, the authors are held in a ward for 20 persons. There are no restrictions concerning telephone conversations or visitations. İsmet Özçelik was visited by his parents on 6 June 2017. Turgay Karaman had a telephone conversation with a relative on 12 June 2017.

4.7 The State party submits that the authors’ claims are inadmissible for failure to exhaust domestic remedies as the authors did not appeal the detention decision of the Ankara 5^th Criminal Magistrates’ Office. The State party further argues that claims relating to alleged arbitrary custody and detention and to the non-communication of the reasons for arrest can be reviewed under domestic law by first instance courts under article 141 of the Code of Criminal Procedure (CCP). The State party further notes that individuals can submit complaints before the Constitutional Court on alleged violations that fall within the scope of the European Convention on Human Rights and its Protocols, after the exhaustion of all administrative and judicial remedies. It notes that in cases submitted to the European Court of Human Rights following the coup attempt of 15 July 2016, the Court has found that complaints before the Constitutional Court is an effective remedy that an applicant has to exhaust prior to submitting a complaint.^[4]

Authors’ comments on the State party’s observations on admissibility

5.1 On 25 September 2017, the authors submitted their comments on the State party’s observations on the admissibility of the communication.

5.2 The authors claim that none of the domestic remedies invoked by the State party constitutes an adequate or sufficient remedy.

5.3 The authors note that they have appealed the detention decision of the Ankara 5^th Criminal Magistrates’ Office. On 30 May 2017, Turgay Karaman’s counsel appealed the decision while the lawyer assigned to İsmet Özçelik by the Bar Association appealed the detention decision on 26 May 2017. On 22 June 2017, the Ankara 6^th Criminal Magistrates’ Office rejected both appeals.

5.4 The authors note that filing a complaint before the domestic courts under article 141 CCP in order to obtain financial compensation is not a remedy they are seeking. Their primary objective is not to obtain financial compensation but to ensure that the continuous violation of their rights ends and that they are released from detention.

5.5 The authors argue that filing an individual application before the Constitutional Court is not an effective remedy as the Court is not competent to deal with measures imposed under the Decree Laws. The Constitutional Court rendered a decision on 13 October 2016 in which it rejected an appeal introduced in September 2016 by the Republican Peoples’ Party (CHP), the main opposition party, to review the constitutionality of Decree Law No. 667. The Court found it was not competent to conduct such a review. They further argue that pursuing a claim before the Constitutional Court would be unreasonably prolonged. According to the most recent figures available, over 100,000 cases are currently pending before the Court, while the Court has in the past dealt with a maximum of 20,000 cases a year.^[5] They note that, as per recent estimates, it will take the Court at least 10 years to review every case currently pending before it.^[6]

5.6 The authors argue that, even if there would have been domestic remedies to exhaust, they are impeded from exhausting them as they cannot rely on actual legal representation and assistance. Finding counsel has been extremely burdensome. Most were too afraid to represent anyone allegedly connected to the Gülen movement. It is only after having been turned away numerous times that the authors’ family members managed to find counsel for the authors in Turkey. They note that İsmet Özçelik’s counsel visited him only once, in May 2017. Shortly thereafter, however, counsel was arrested because he was providing legal assistance to an alleged Gülenist. The authors’ friend who arranged for contact with this lawyer was also arrested. Upon release, the counsel withdrew from representing the author. He was assigned another counsel by the Turkish Bar Association. This counsel did not take any action to defend his interests and instead kept trying to persuade him to confess to crimes he had not committed. The authors note that they have no legal background or knowledge of the Turkish criminal justice system and they are therefore not in position to initiate domestic proceedings in the absence of legal assistance.

5.7 The authors additionally argue that domestic remedies in Turkey should be presumed to be non-effective due to the gross and systematic violations of human rights in the country. They note that almost one third (4,424) of the judges and prosecutors have been dismissed on allegations of conspiring with the Gülen movement, while 2,386 judges and prosecutors have been detained.[7] In its report of November 2016, the European Commission stressed that: “these large-scale dismissals as well as large-scale recruitments of new judges and prosecutors raise a serious challenge to the performance and independence of the judiciary”.[8]

5.8 The authors submit that their claims under articles 9, 10 and 14 of the Covenant are admissible despite the State party’s derogation under article 4 as the measures taken by the State party authorities pursuant to the derogation do not comply with the principles of proportionality, consistency and non-discrimination.[9] The authors note that the principle of proportionality requires that measures adopted pursuant to a derogation do not go beyond what is strictly necessary in order to cope with a public emergency which threatens the life of the nation.^[10] They argue that the decree laws have been adopted with the specific purpose of eliminating all individuals or organizations even slightly linked to or inspired by the ideas of the Gülen movement and that the derogation is therefore contrary to the objective and purpose of derogations under article 4.

State party’s observations on the merits

6.1 On 27 February 2018, the State party submitted its observations on the merits of the complaint. It reiterates its arguments concerning the non-exhaustion of domestic remedies and submits that the authors have failed to substantiate their claims for the purpose of admissibility.

6.2 The State party reiterates that the authors’ claims under article 9 of the Covenant fall within the scope of its derogation made under article 4 of the Covenant and that the derogation should therefore be taken into account in examining the complaint. It notes that the investigation against the authors is still pending. It further notes that in its decision on detention the Ankara 5^th Criminal Magistrate’s Office noted that İsmet Özçelik was using the ByLock application, an encrypted communication system utilized by members of FETÖ/PDY, and that he had deposited money in Bank Asya in 2014 with a view to support FETÖ/PDY. The State party submits that the detention of the authors cannot be considered to be arbitrary or groundless taking into account the state of emergency, the declaration of derogation, the scope of the investigation against the authors, and the serious and complex nature of the alleged crimes.

6.3 As to the authors’ claims under article 14 of the Covenant, the State party notes that access to the case file may be restricted under article 153 of the Code of Criminal Procedure, which stipulates that: “At the request of the public prosecutor, the defence lawyer’s right to examine the content of the case file and to make copies may be restricted by decision of the judge, if his examining the contents of the file or taking copies is likely to jeopardize the aim of the ongoing investigation.” It however notes that the restriction does not extend to statements by the suspect, expert reports and records of judicial proceedings at which the suspect is entitled to be present. It argues that the authors were informed of the accusations against them through the questions asked during the police interrogation and through the hearings before the public prosecutor’s office and the court. It further notes that once an indictment is issued, the restriction on the file is lifted and the defence counsel can examine the contents of the file and make copies. The State party submits that the authors have not been deprived of the right to a fair trial. It further notes that the authors have not raised their claims under article 14 before the domestic authorities.

6.4 As concerns the authors’ claims under article 7 of the Covenant, the State party notes that article 9 of the ‘By-law on Apprehension, Custody and Taking of Statements’ stipulates as a mandatory requirement that medical reports are issued for persons arrested or detained in order to prevent ill-treatment. Likewise, a medical report is also issued before the transfer of a suspect, as well as upon the extension of the custody period or upon release from custody. The authors were medically examined before their detention and medical reports were issued. In addition, they were examined at both Sincan and Denizli prisons. There was no indication that they had been subjected to torture or ill-treatment. The State party further notes that the authors have not raised their claims under article 7 before the domestic authorities.

6.5 As concerns the authors’ claims under article 10 of the Covenant the State party notes that the authors were detained on remand in Sincan prison from 23 May to 3 June 2017. During this time they could communicate with their relatives and they were medically examined. Turgay Karaman made no claims of having any health problems. İsmet Özçelik was diagnosed with “KAH (coronary artery), DM (diabetes mellitus) and HT (hypertension)” on 30 May 2017. He was prescribed medication accordingly. The authors were able to purchase basic clothing from the prison canteen from funds deposited on their prison accounts. Clothes that were brought by their relatives were duly accepted and delivered to the authors. The authors had access, for a fee, to the prison laundry service. Despite having the right to do so, they did not make any phone calls or send or receive any letters. On 3 June 2017, the authors were transferred to Denizli prison. Turgay Karaman was examined in the prison by his family physician on 3 June 2017. He was subsequently examined by a doctor at Denizli state hospital and was prescribe medication. On 21 September 2017, he was examined at a dental health centre. İsmet Özçelik was examined by his family physician on 3 June, 5 July, 10 August, 2 October and 30 November 2017. He was prescribed medication. On 12 July 2017, he was examined by a cardiologist at Denizli state hospital. Turgay Karaman had phone conversations with his father 13 times between June and December 2017. İsmet Özçelik had a phone conversation with his sister on 27 November 2017. There are no restrictions on the authors’ ability to receive and send letters and both authors have sent and received letters. The authors are also able to communicate with their counsel and have visitors. The authors have been provided with drinking water and nutritious and healthy food suitable for their age, health conditions and religious and cultural requirements in both prisons. The State party submits that the authors’ detention conditions are therefore in conformity with article 10 of the Covenant. The State party further notes that the authors have not raised their claims under article 10 before the domestic authorities.

Authors’ comments on the State party’s observations on the merits

7.1 On 16 July 2018, the authors submitted their comments on the State party’s observations on the merits of the complaint.

7.2 The authors note that the State party has not submitted any documentation such as relevant arrest warrants, extradition requests or detention decisions in support of its submission that the authors have not been subjected to treatment contrary to their rights under the Covenant.

7.3 The authors reiterate their submission that they have been arbitrarily and unlawfully deprived of their liberty in violation of their rights under article 9 of the Covenant. They note that, as per information provided by their Malaysian lawyer, the Malaysian Special Branch covertly rendered them into the custody of Turkish intelligence officers in the evening of 11 May 2017, after which they were removed to Ankara without any notification to their family or legal counsel. They have not been informed of the concrete charges held against them and are still unaware of the exact reasons why they are detained. It was only through the observations of the State party that they were made aware of some of the alleged evidence against them. They note that the only evidence listed as concerns the charges against İsmet Özçelik, is the alleged use of the application Bylock, an online communication platform used by over a million people worldwide and that he has deposited money in Bank Asya, which was, for years, the largest participation bank in Turkey. They note that the State party has not provided any information of any evidence against Turgay Karaman that would justify his detention. The authors submit that the evidence referred to by the State party clearly fails to meet the reasonable suspicion standard.

7.4 The authors reiterate their submission that they have not been brought promptly before a judge. They note that the European Court of Human Rights has consistently held that article 5 of the European Convention on Human Rights is violated when a person is deprived longer than four days from his or her freedom without access to a judge.[11] They additionally note that, since their first appearance before a judge, they have not had the possibility to re-appear in person before a court, nor via counsel, to have their detention reviewed. They do not know how the investigation progresses as they have no access to the casefile.

7.5 As concerns their claims under article 7 of the Covenant, the authors note the State party’s argument that medical reports were issued upon their transfer to Denizli and Sincan prisons, which did not reveal any indications of torture or ill treatment. The authors note that the State party has not submitted the medical reports in question with its observations and that they do not have access to the reports. They further argue that even if these reports were to exist, they do not prove that torture or ill-treatment has not taken place.[12]

7.6 As concerns their claims under article 10 of the Covenant, the authors claim that they were transferred to Denizli prison without their lawyers or family members being informed. They further note that Denizli prison is in a location six hours away from their relatives in Ankara. They also reiterate their claims that they were not allowed to receive clothes from their families for three months and that contact with their families is so difficult and burdensome that they rarely have the opportunity to communicate with them. They claim that they have applied for permission to make telephone calls to their wives and children who live abroad but have not been allowed to do so. They have only been allowed limited and monitored phone calls with their parents in Turkey. When Turgay Karaman tried to insist on his right to make phone calls, he was threatened with solitary confinement by the prison warden. The only way they can communicate with their families abroad is through letters; however some of the letters received are not delivered to the authors by the prison authorities, and the ones that are delivered take up to one month to be handed to the authors. They further claim that they have been refused necessary medical treatment, which seriously impacts their health and well-being. The authors also allege that they have to stay in overcrowded prison cells where six to ten people have to sleep on the floor and that they lack access to basic food, hygiene and recreation.

7.7 As concerns their claims under article 14 of the Covenant, the authors argue that the questions posed to them during interrogation are insufficient for the purpose of informing them about the charges against them. They also note that their conversation with counsel were monitored and recorded.[13] The authors further reiterate their claim that they do not have access to their case file or effective legal counsel. They have no prospect to be tried without undue delay as no progress has been made in the investigation against them.

Issues and proceedings before the Committee

Consideration of admissibility

8.1 Before considering any claims contained in a communication, the Committee must decide, in accordance with rule 93 of its rules of procedure, whether or not it is admissible under the Optional Protocol to the Covenant.

8.2 The Committee has ascertained, as required under article 5 (2) (a) of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement.

8.3 The Committee notes the State party’s submission that the communication should be considered inadmissible on the grounds of non-exhaustion of domestic remedies as the authors failed to appeal the detention decisions of the Ankara 5^th Criminal Magistrates’ Office. The Committee notes, however, the authors’ submission that they appealed these decisions to the Ankara 6^th Criminal Magistrates’ Office, which rejected their appeals on 22 June 2017. The Committee notes that the State party does not refute the authors’ assertion in this regard and that it has not identified any further avenues of appeal against the authors’ detention order. The Committee finds that the authors have therefore exhausted this remedy.

8.4 The Committee notes the State party’s submission that the authors failed to exhaust domestic remedies by not submitting an individual application before the Constitutional Court. It further notes the State party’s submission that the European Court of Human Rights has held, in cases concerning pre-trial detention after the declaration of the state of emergency, that an individual applications before the Constitutional Court constitutes an effective remedy.[14]

8.5 The Committee notes the authors’ argument that filing an individual application before the Constitutional Court is not an effective remedy as: a) the Court is not competent to deal with measures imposed under the Decree Laws; b) the process would be unreasonably prolonged; and c) they are unable to rely on effective legal representation and assistance in order to appeal to the Constitutional Court. The Committee notes that the State party has not provided any information on the effectiveness of the remedy of an individual application to the Constitutional Court in cases concerning pre-trial detention imposed under the decree laws. It further notes that the State party has not refuted the authors’ claim that the proceedings before the Constitutional Court would be unduly prolonged. It additionally notes that the State party has not provided any specific information refuting the authors’ claim that their lack of access to effective legal representation prevents them from submitting a complaint before the Constitutional Court. It also 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.[15] The Committee further notes that the European Court of Human Rights noted that it would be for the Government to prove that the remedy of an individual complaint to the Constitutional Court was effective, both in theory and in practice.[16] In the absence of any further information on file that would support the effectiveness of the remedy of a complaint before the Constitutional Court, the Committee finds that, in the circumstances of the authors’ case, the State party has not shown that an individual complaint before the Constitutional Court would have been effective to challenge the authors’ detention under the decree laws.

8.6 The Committee further notes the State party’s submission that the authors have failed to exhaust domestic remedies by not filing a compensation claim under article 141 of the CCP. It notes, however, that a remedy provided under this provision would not end the authors’ pre-trial detention and could therefore not be an effective remedy under article 5 (2) (b) of the Optional Protocol.

8.7 The Committee notes the State party’s submission that, as concerns the authors’ claims under articles 6, 7, 10 and 14, the authors have failed to exhaust domestic remedies by not raising these claims before a domestic authority. The Committee notes the authors’ claims that they have been subjected to ill-treatment, that Mr. İsmet Özçelik informed his counsel of this and that the counsel appointed by the Turkish Bar Association did not take any action to defend his interests and tried to persuade him to confess to crimes he had not committed. It also notes the authors’ claim that they have no legal background or knowledge of the Turkish criminal justice system. The Committee recalls that authors of communications must exercise due diligence in the pursuit of available remedies[17] but it notes that in the present case the authors have not provided any specific information or substantiation of having raised these claims before relevant domestic authorities, or having instructed their counsels to do so on their behalf. The Committee accordingly, finds the authors’ claims under articles 6, 7, 10 and 14 inadmissible pursuant to article 5 (2) (b) of the Optional Protocol.

8.8 The Committee further notes the State party’s submission that the authors’ claims under article 9 should be found to be inadmissible as the State party has made a derogation under article 4 of the Covenant. The Committee recalls that before a State moves to invoke article 4 of the Covenant, two fundamental conditions must be met: the situation must amount to a public emergency which threatens the life of the nation, and the State party must have officially proclaimed a state of emergency.[18] The Committee notes that the State party proclaimed a state of emergency on 20 July 2016 and its position that the coup attempt and its aftermath have posed severe dangers to public security and order, amounting to a threat to the life of the nation. It notes that the authors’ have not contested that the situation amounted to a public emergency within the meaning of article 4 of the Covenant. It further notes that the European Court of Human Rights and the Constitutional Court of Turkey have found that the attempted coup disclosed the existence of a public emergency threatening the life of the nation within the meaning of article 15 of the European Convention on Human Rights and the Constitution.[19] The Committee considers that the derogation was thus made in a situation that amounted to a public emergency within the meaning of article 4 of the Covenant. However, the State party fails to explain how the authors were linked to or posed, in any way, dangers that were envisaged  under the  declaration of the state of emergency in the territory of the State party, or how their pre-trial detention under the emergency decree laws was strictly required by the exigencies of the security situation. The Committee further notes the authors’ submission that the measures adopted by the State party in their case did not comply with the principles of proportionality, consistency and non-discrimination. The Committee considers that the assessment as to whether the measures taken in the authors’ case were strictly required by the exigencies of the situation needs to be examined in the context of the merits of the communication.

8.9 The Committee further notes the authors’ claims that their rights under article 9 of the Covenant were violated, as they were removed from Malaysia to Turkey by individuals acting under the control or instructions of the Turkish authorities without any judicial procedure for extradition having been initiated by Turkey. The Committee notes that, according to  the limited information on file, it appears as the authors were detained by Malaysian authorities prior to their removal to Turkey. The Committee notes that the information on file does not allow it to conclude that the authors were removed to Turkey under the effective control of Turkish authorities.  It therefore finds this part of the communication inadmissible under article 1 of the Optional Protocol.

8.10               The Committee notes that I.A. has withdrawn his complaint before the Committee. It therefore decides to discontinue the communication as it pertains to him.

8.11               In the absence of any other challenges to the admissibility of the communication, the Committee declares the communication admissible insofar as it concerns the rest of the authors’ claims under article 9 of the Covenant, and proceeds with their consideration on the merits.

Consideration of merits

9.1 The Committee has considered the communication in the light of all the information made available to it by the parties, as provided for under article 5(1) of the Optional Protocol.

9.2 As concerns the State party’s derogation under article 4 of the Covenant the Committee recalls that a fundamental requirement for any measures derogating from the Covenant is that such measures are 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 that this 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.[20] 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.[21]

9.3 The Committee notes the authors’ claim under article 9 of the Covenant. It notes that the authors have not claimed that their detention in Turkey was unlawful under the decree laws. The question before the Committee is therefore to consider whether their detention is 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.^[22]

9.4 The Committee notes the authors’ claim that they have not been informed of the charges against them and are unaware of the exact reasons why they are detained; that they do not have access to their casefiles; and that no evidence has been presented by the State party grounding a reasonable suspicion that they have committed a criminal offence necessitating pre-trial detention. It notes the State party’s argument that the detention of the authors cannot be considered to be arbitrary or groundless taking into account the state of emergency, the declaration of derogation, the scope of the investigation against the authors, and the serious and complex nature of the alleged crimes. It further notes the State party’s argument that the authors were informed of the accusations against them through the questions asked during the police interrogation and through the hearings before the public prosecutor’s office and the court. The Committee 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 authors have been promptly informed of the reason for their arrest or the charges against them. It further notes that the State party has not provided any information on the questions posed to the authors during the investigation or records of such interviews. The Committee further note that the State party has not provided any information on the evidence held against Turgay Karaman that would justify his detention and that the only evidence held against İsmet Özçelik is the use of the Bylock application and the deposition of funds in the Bank Asya. In these circumstances, the Committee considers that the State party has not established that the authors were promptly informed of the charges against them and the reason for their arrest, nor substantiated that their detention meet 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 authors’ detention amounted to a violation of their rights under article 9 (1-2) of the Covenant.

9.5 The Committee further notes the authors’ claim that it took the Turkish authorities 19 and 21 days respectively to bring them before a judge and that they have not had the possibility to re-appear in person or by counsel before a court to have their detention reviewed. It notes the State party’s submission that the authors were taken into custody upon their arrival in Turkey on 12 May 2017, that the custody period was extended for an additional seven days on 18 May 2017 upon the instruction of the Public Prosecutor and that the authors were detained on 23 May 2017. The Committee notes that, based on the information on file, it appears that the authors were detained by Malaysian authorities prior to their removal to Turkey, according to the author’s claims, at the request of Turkish authorities (see para.8.9). However, in the absence of any concrete information in the file that would suggest that the authors were under the effective control of Turkish authorities before their removal to Turkey, the Committee considers that the detention period attributed to Turkish authorities started on 12 May 2017. The authors were brought before a judge on 23 May 2017, namely 11 days after having been taken into custody by Turkish authorities.

9.6 The Committee recalls that any person arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power. The right is intended to bring the detention of a person in a criminal investigation or prosecution under judicial control. It is inherent to the proper exercise of judicial power that it be exercised by an authority which is independent, objective and impartial in relation to the issues dealt with. Accordingly, a public prosecutor cannot be considered as an officer exercising judicial power under article (9) 3 of the Covenant.^[25] While the exact meaning of “promptly” may vary depending on objective circumstances, delays should not exceed a few days from the time of arrest. Any delay longer than 48 hours must remain absolutely exceptional and be justified under the circumstances.[26] The Committee notes that any derogation from this time frame in times of public emergency must be justified as strictly required by the exigencies of the situation. After an initial determination has been made that pretrial detention is necessary, there should be periodic re-examination of whether it continues to be reasonable and necessary in the light of possible alternatives.^[27]

9.7 The Committee notes that in the authors’ case it took 11 days before they were brought before a judge and that consequently they were not brought promptly before a judge or judicial officer. The Committee further notes the authors’ claims that since the detention hearing on 23 May 2017 they have not had the possibility to re-appear in person, or via counsel in order for the detention decision to be re-examined, a period amounting to almost two years. It notes that the State party has not refuted the authors’ claims in this regard and that the State party has also not provided any information on whether the detention decisions against the authors have been periodically re-examined. The Committee considers that such a delay and lack of re-examination of the necessity and reasonableness of the authors’ continued detention, especially taking into account its findings as concerns the authors’ claims under article 9 (1-2), cannot be considered as strictly required by the exigencies of the situation. The Committee accordingly finds a violation of the authors’ rights under article 9 (3) of the Covenant.

10. The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the facts before it disclose a violation of the authors’ rights under article 9 (1-3) of the Covenant.
11. In accordance with article 2 (3) (a) of the Covenant, the State party is under an obligation to provide the authors with an effective remedy. This requires it to make full reparation to individuals whose Covenant rights have been violated. Accordingly, the State party is obligated, inter alia, to release the authors and provide them with adequate compensation for the violations suffered. The State party is also under an obligation to take all necessary steps to prevent the occurrence of similar violations in the future.
12. Bearing in mind that, by becoming a party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory or subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy when it has been determined that a violation has occurred, the Committee wishes to receive from the State party, within 180 days, information about the measures taken to give effect to the Committee’s Views. The State party is also requested to publish the present Views and disseminate them broadly in the official language of the State party.

Annex

Individual Opinion of Mr. Gentian Zyberi (partly concurring, partly dissenting)

Background

1. On 15 July 2016, Turkey suffered a coup d’Etat, a criminal attack against the Turkish constitutional order, aimed at overthrowing the Turkish government and President Erdoğan. Turkey gave notice to the Secretary-General of a derogation under article 4 of the Covenant on 2 August 2016, whereby measures taken may involve derogation from obligations under the ICCPR regarding Articles 2/3, 9, 10, 12, 13, 14, 17, 19, 21, 22, 25, 26 and 27 (para. 1.1 and footnote 3 of the Committee’s views). The state of emergency in Turkey was lifted as of 19 July 2018 (para. 1.1).

Concurring opinion

2. I am fully agreed with the Committee that the facts of the case reveal a violation of Article 9(1-3) of the Covenant (para. 10). Turkey has not established that the authors were promptly informed of the charges against them and the reason for their arrest, nor substantiated that their detention meet the criteria of reasonableness and necessity. This has led the Committee to find that the authors’ detention amounted to a violation of their rights under article 9 (1-2) of the Covenant (para. 9.4). Furthermore, as the Committee has found, a delay and lack of re-examination of the necessity and reasonableness of the authors’ continued detention, especially taking into account its findings as concerns the authors’ claims under article 9(1-2), cannot be considered as strictly required by the exigencies of the situation. This has led the Committee to find a violation of the authors’ rights under article 9(3) of the Covenant (para. 9.7).

Dissenting opinion

3. I am unable to join the Committee’s decision to declare inadmissible under Article 1 of the Optional Protocol the authors’ claim of violation of Article 9 for their unlawful rendition from Malaysia to Turkey.[28] The authors have claimed that they have been subject to attempted kidnapping (para. 2.2), and that no extradition hearing had been held or judicial decision taken in that regard (para. 2.4). According to the authors’ Malaysian lawyer, the Malaysian Special Branch covertly rendered them into the custody of Turkish intelligence officers in the evening of 11 May 2017, after which they were removed to Ankara without any notification to their family or legal counsel (para. 7.3). Turkey has not provided any documents pertaining to the removal of the authors from Malaysia, neither to the authors nor to the Committee. Under these circumstances, the Committee should have accepted the authors’ claim and found Turkey responsible for violating Article 9 based on its complicity and active role in the authors’ unlawful removal from Malaysia.
4. I also depart from the Committee’s finding of inadmissibility of the authors’ claims under Articles 7, 10 and 14 pursuant to article 5(2)(b) of the Optional Protocol. First, from a general perspective the overall legal environment in Turkey after the coup has been negatively affected, including that part of the legal profession administering criminal justice for individuals alleged to have been a part of or affiliated with FETÖ/PDY.[29] Secondly, and specifically related to the case at hand, the authors have tried to use the legal venues reasonably available to them, to no avail.
5. The authors have claimed that they are impeded from exhausting domestic remedies, as they cannot rely on actual legal representation and assistance given that finding defense counsel has been extremely burdensome (para. 5.6). Moreover, the authors have noted that they have no legal background or knowledge of the Turkish criminal justice system and they are therefore not in position to initiate domestic proceedings in the absence of legal assistance (para. 5.6). While I agree with the Committee that authors of communications must exercise due diligence in the pursuit of available remedies, such pursuit can only take place in an environment which is conducive to such efforts. The Turkish legal system after the coup, where almost one third (4,424) of the judges and prosecutors have been dismissed on allegations of conspiring with the Gülen movement and where 2,386 judges and prosecutors have been detained (para. 5.7), does not provide an environment conducive to upholding the standards of due process.
6. The authors have appealed their detention without success (para. 5.3). Mr Özçelik informed his legal counsel that he was subject to ill-treatment and that his family had been threatened (para. 3.4). Both authors are in detention after almost two years, without specific charges or a trial date. These facts should have guided the Committee to put more weight to the second sentence of Article 5(2)(b) of the Optional Protocol, which justifies non-exhaustion of domestic remedies when unreasonably prolonged.
7. What perhaps epitomizes the problems with the administration of criminal justice in this case concerns the violation of the right to a fair trial under Article 14(3)(g) of the Covenant. The counsel assigned to Mr Özçelik by the Turkish Bar Association did not take any action to defend his client’s interests and instead kept trying to persuade him to confess to crimes he had not committed (para. 5.6). Article 14(3)(g) of the Covenant protects an individual from being compelled to testify against himself or to confess guilt. Instead of protecting the rights of the accused, legal counsel purposedly undermined them.
8. Finally, it is problematic that the Committee placed the burden of proof on the authors, even when no documentary or other evidence was offered by the State to counter their claims.

*    Adopted by the Committee at its 125th session (4-29 March 2019).

**   The following members of the Committee participated in the examination of the communication: Tania María Abdo Rocholl, Yadh Ben Achour, Ilze Brands Kehris, Christopher Arif Bulkan, Ahmed Amin Fathalla, Shuichi Furuya, Christof Heyns, Bamariam Koita, Marcia V.J. Kran, Duncan Laki Muhumuza, Photini Pazartzis, Hernán Quezada, Vasilka Sancin, José Manuel Santos Pais, Yuval Shany, Hélène Tigroudja, Andreas Zimmermann and Gentian Zyberi.

***An individual opinion by Committee member Gentian Zyberi (partly concurring, partly dissenting) is annexed to the present Views.

[1]  Additional information was also provided by family members of the authors on 18 May 2017.

                     [2]   The authors refer to the report ‘A Blank Check, Turkey’s Post-Coup Suspension of Safeguards Against Torture’, Human Rights Watch, October 2016, and ‘Turkey: Independent monitors must be allowed to access detainees amid torture allegations’, Amnesty International, July 2016.

                     [3]   On 2 August 2016, the Secretary-General was notified of the following: “… The coup attempt and its aftermath together with other terrorist acts have posed severe dangers to public security and order, amounting to a threat to the life of the nation in the meaning of Article 4 of the International Covenant on Civil and Political Rights. The Republic of Turkey is taking the required measures as prescribed by law, in line with the national legislation and its international obligations. In this context, on 20 July 2016, the Government of Turkey declared a State of Emergency for a duration of 90 days, in accordance with the Turkish Constitution (Article 120) and the Law No. 2935 on State of Emergency (Article 3/1b). The decision was published in the Official Gazette and approved by the Turkish Grand National Assembly on 21 July 2016. In this process, measures taken may involve derogation from obligations under the  International Covenant on Civil and Political Rights regarding Articles 2/3, 9, 10, 12, 13, 14, 17, 19, 21, 22, 25, 26 and 27, as permissible in Article 4 of the said Covenant. ”

                     [4]   The State party refers to Mercan v. Turkey, (application No. 56511/2016), 8 November 2016; and Zihni v. Turkey, (application No. 59061/2016), 29 November 2016.

                     [5]    The authors refer to a New York Times article, ‘Inside Turkey’s Purge’, 13 April 2017.

                     [6]   The authors refer to a Hurriyet Daily News article, ‘Constitutional Court’s decision on jailed journalists’, 1 April 2017.[As per statistics available on the webpage of the Constitutional Court, the court received 20.578 individual applications in 2014, 20.376 in 2015, 80.756 in 2016 and 40.530 in 2017. The court decided 10.926 cases in 2014, 15.416 in 2015, 16.102 in 2016 and 89.653 in 2017.]

                     [7]   European Commission, ‘Staff Working Document: Turkey 2016 Report’, 9 November 2016.

                     [8]   Ibid p. 19.

                     [9]   The authors refer to Human Rights Council, Working group on arbitrary detention, Opinion No. 1/2017 concerning Rebii Metin Görgeç (Turkey) A/HRC/WGAD/2017/1, 8 June 2017.

                    [10]   The authors refer to the European Court of Human Rights, Aksoy v. Turkey, (application No.  21987/93), 18 December 1996; Demir and Others v. Turkey (application Nos. 21380-83/93), 23 September 1998; Nuray Şen v. Turkey (application No. 41478/98), 17 June 2003 and Bilen v. Turkey (application No. 34482/97), 21 February 2006.

                    [11]   The authors refer to the European Court of Human Rights McKay v. the United Kingdom, (application No. 543/03), 13 October 2006, para. 33.

                    [12]   The authors refer to Human Rights Watch, ‘In Custody Police Torture and Abductions in Turkey’, 12 October 2017 and Human Rights Watch, ‘A Blank Check’, October 2016 in which it was noted that: “Detainees who alleged torture were brought before doctors for routine medical reports, but either the doctors showed no interest in physical evidence of torture or the presence of police officers inhibited them from conducting proper medical examinations and made it hard for detainees to describe their injuries or speak about treatment in custody.” They further refer to a report by OHCHR, ‘Report on the impact of the state of emergency on human rights in Turkey, including an update on the South-East: January – December 2017’, March 2018, para. 83 in which it is noted that: “OHCHR received credible reports that medical checks conducted by the designated doctors on detainees held in police custody were often done in the presence of police officers, violating the confidentiality of patients and impeding adequate documentation of possible torture or ill-treatment.”

                    [13]   The authors refer to OHCHR, ‘Report on the impact of the state of emergency on human rights in Turkey, including an update on the South-East: January – December 2017’, March 2018, para. 83 in which it is noted that: “Decree 667 significantly erodes detainees’ right to confidential legal advice. It provides that oral consultations between the detainees and their lawyers may be recorded for security reasons, and that the documents they exchange may be seized; the timing of such consultations may be regulated, and the lawyer may be replaced, at the request of the prosecution.”

                    [14]   Mercan v. Turkey, (application No. 56511/2016), 8 November 2016; and Zihni v. Turkey, (application No. 59061/2016), 29 November 2016.

                    [15]   European Court of Human Rights, Mehmet Hasan Altan v. Turkey (application No. 13237/17), 20 March 2018, para. 142 and Şahin Alpay v. Turkey (application No. 16538/17), 20 March 2018, para. 121.

[16]    Ibid

[17]    See, inter alia, V.S v. New Zealand (CCPR/C/115/D/2072/2011), para. 6.3, García Perea v. Spain (CCPR/C/95/D/1511/2006), para. 6.2; and Zsolt Vargay v. Canada (CCPR/C/96/D/1639/2007), para. 7.3.

                    [18]   General Comment No. 29 (2001), para. 2.

                    [19]   European Court of Human Rights, Mehmet Hasan Altan v. Turkey (application No. 13237/17), 20 March 2018, paras. 88-93 and Şahin Alpay v. Turkey (application No. 16538/17), 20 March 2018, paras 72-78.

                    [20]   General Comment No. 29 (2001), para. 4.

                    [21]   General Comment 35 (2014), para. 66.

                    [22]   General Comment 35 (2014), para. 12.

                    [23]   General Comment 35 (2014), para. 29.

                    [24]   General Comment 35 (2014), para. 66.

                    [25]   General Comment 35 (2014), para. 32.

                    [26]   General Comment 35 (2014), para. 33.

                    [27]   General Comment 35 (2014), para. 38.

                     [28]   Malaysia is not a party to the Covenant and the Optional Protocol.

                     [29]   See, inter alia, Opinion on Emergency Decree Laws NOS. 667-676 Adopted Following the Failed Coup of 15 July 2016, adopted by the Venice Commission at its 109th Plenary Session (Venice, 9-10 December 2016), especially pp. 32-38.

The self-proclaimed captive Chief of General Staff, force commanders, and MIT Chief, who was informed about the coup attempt at least 6 hours before, according to the court records, have still been silent. Investigation records indicate that AKP district organizations were informed about the upcoming coup before hours, had made preparations for demonstrations. These are all questions still waiting for answers.

The lawyers and journalists who dared to ask questions on TV to remove doubts and who question some abnormal events have all been arrested or investigated.

As a result, while the silence on the people in charge of the event has been reigning, hundreds of privates and cadets of military school have received aggravated life imprisonments in the investigation launched after the most absurd and funniest coup attempt in the history of the world.

Without doubt, some of the most scandalous investigations are the ones carried out on some authors and journalists who are not shy about criticizing the government and revealing its mistake. Many intellectuals have been still tried on unlawful, unreasonable, and relentless indictments.

As the defendant of one of these trials, Ahmet Altan shouted out this nonsense and brazenness as artfully as possible in a manner of Emile Zola during the hearing which began a year after his arrest.

“The honest authority which enables the millions to turn into a nation and establish a state is not one of politicians, soldiers, executives, or political parties.

The honest authority, that great source of trust, resides in the judges.

The magical link that turns millions of dispersed pearls into a necklace is the honesty of those judges.

Without judges, there cannot be a nation. Without judges, there cannot be a state.

What makes a nation and what makes a state is its judges.

In the same way that removing the oxygen atom from a water molecule turns the very source of life into one of death, removing the judges from the state turns it into an armed gang.

If there are no judges then there is no state.

When you remove the oxygen atom from a water molecule it no longer qualifies as water. Similarly, when you remove the judges from the state, the state no longer qualifies as a state.

What distinguishes a state from an armed gang is the presence of judges.

Well, then what makes this ever so vitally important judge a judge?

It is not his or her diploma, his or her cloak, his or her podium.

What makes a judge a judge is their possession of an almost godly honesty and the people’s undoubting belief in that honesty.

In the same way that there cannot be a lying God there cannot be a lying judge.

A judge would lose their qualification as judge the moment they were to lie in court.

If a state were to allow a judge who no longer qualifies as a judge to continue, that state would no longer qualify as a state.

A judge demolishes the state as they demolish their qualification as a judge by lying in court.

A year ago, Mehmet Altan and I were arrested on the charges of ‘giving subliminal messages to the putschists.’

Later on, this ridiculous allegation disappeared and we were sent to prison on the charges of staging the coup on 15 July and attempting to overthrow the government with weapons.

We are said to have staged an armed coup d’etat.

This is the crime we are charged with.

This is a case in which the absurdity of the allegation overwhelms even the gravity of the charges.

Now, I’ll say something loud and clear to his court, to this country and to those around the world who have taken an interest in this trial:

Show us even a single piece of concrete evidence of the strange allegations against us, and I will not defend myself anymore. Even if I am sentenced to the gravest penalty I will not appeal the ruling.

I am saying this loud and clear.

Show me a single piece of evidence and I will waive my right to appeal.

I will submit to spending the rest of my life in a prison cell.

During this past year, which we spent in prison, a judge ruled each month for the continuation of our imprisonment by claiming that ‘there was solid evidence’ against us.

In the previous hearing, you, too, said there was ‘concrete evidence’ against us.

Now, for you to be able to preserve your integrity and your qualification as a judge and for the state to be able to preserve its qualification as a state, you need to show us what those pieces of ‘solid evidence’ are.

Since you declared with such ease that there was solid evidence, that evidence needs to be in our case files.

Come on, show that solid evidence to us and to the rest of the world – the evidence which proves that we staged a coup on 15 July.

You won’t be able to show it.

Both you and I know that there is no such evidence.

Because these allegations are utter lies.

Go ahead, disprove what I have been saying, pull out that piece of evidence and show it to us.

There are some difficult aspects to arresting people on nonsensical allegations, Your Honor, and now you are confronted with those difficulties.

Either you will end this nonsense by saying ‘there is no solid evidence’ or you will show us some ‘solid evidence.’

Or, you will insist on saying ‘there is solid evidence’ while there is no solid evidence and thus lose your integrity and your qualification as a judge?

And with you, the state will lose its qualification as a state.

Thereby we will cease to be defendants.

We will become hostages of the judges, who have lied and therefore lost their qualification as judges, and to an armed gang, which has lost its qualification as a state.”

The accusation against Ahmet Altan, his brother Mehmet Altan, Nazli Ilicak, and three other journalists were giving support to the putschists by giving subliminal messages; as a natural result of this message, having beforehand information about the coup; and encouraging it. Firstly, the local court, and recently the court of appeal accepted the charges and approved the aggravated life sentences by copying and pasting the local court’s decision.

The word ‘subliminal message’ which the prosecutor hides behind, was chosen carefully. Because there will be no one to understand the message, except prosecutors and judges. Therefore, unable to understand and judge, the people will not question the reason of punishing the journalists.

The evidences of their guiltiness are the following statements: (About Altan brothers and Ilicak) “In the TV program released a day before the coup attempt, three defendants talked and gave message about ‘the inevitability of the coup; during the break a song, ‘Once more turned green hazel trees;’ a text saying ‘A nod is as good as a wink to a blind horse’ on green backdrop was written with capital letters; participants laughed out loud at this; a video tape recording, titled ‘We have a hope,’ was played; and participants gave subliminal messages about the coup several times.”

(About the journalists of daily Zaman) “The 20-second advertorial of the Zaman daily starts with an overview of a residential place with emptied buildings and deserted streets together with sirens used to avert people in case of emergency and threat. Then a smiling newborn emerges in the screen. The advertorial was aired on 5 October 2015 which indicates 15 July 2016 when a normal pregnancy period of 9 months and ten days is taken into account. At the end of the advertorial, the logo of the Zaman daily appears on the screen accompanied by an artillery sound of armoured vehicles used by the military. The artillery sound heard at the end of this short advertorial creates a perception that the residential place seen at the beginning was bombed, in this sense, implied to the coup, Thus, it is understood (by the office of the prosecutor) that the organization aimed to give “encrypted and subliminal message” with this advertorial.”

The focus on “subliminal” by the prosecutors and judges replaced in time by the concepts like “appears”, “gives impression”, “in the direction of”, “…esque”. In fact, all these words have the following meaning: “They wanted to say that even if they did not say it”, “they meant that even if they did not say it explicitly”. However, in the criminal law, assumption is in no way deemed to be adequate and a crime must exist for punishment.

The most aggravated punishment in the Turkish Criminal Code has been based on such “vehim” and “assumption”. I don’t know if such bizarre justifications were used for the unlawful death penalty verdicts in the Middle Age courts. I guess their verdicts were more honorable than todays’ powerful oppressors. Foreign institutions share my perspective in this sense.

The following joint-statement of the UN Special Reporter for Freedom of Thought and Express and the OSCE Representative for Media Freedom underlined that no such verdict exists in the law literature.

These are the criminal acts of a couple of journalists they were accused of taking part in the coup and were given as examples as because of which more than 200 journalists experienced the same fate.

The so-called indictment and court decisions, that are the evidences of how “the law is raped” in Ahmet Altan’s depiction, are the best abstract of the law system in new Turkey.

Without doubt, everybody made contribution to this new system. William Carr, Hitler’s biography author, says: “Hitler is not the only responsible for Germany’s disaster. The responsible for Germany’s disaster, is the German people who created Hitler and left its own destiny to him willingly”. What can I say to those who do not see the existing and possible future disasters?

Link for Turkish original text.

If we look at our country’s hundred year history, it will give us some insight into this. When values such as human rights, social equality, democracy, equal opportunity, freedom of expression were on the rise in the country, visible progress was observed, and when the opposite was the case, the country lived through a time of nightmares.

Considering that justice is important to the state system, Erdogan’s AK Party, which aspired to be in government and promised ‘justice’, took some partial concrete steps in its first years towards achieving this. But over time, Erdogan gave into his ambition and weighted the scales in his favour, and so it is we come to the present day.

The judiciary became a bureau of a political party

The most brutal collapse of the justice system undoubtedly took place in the judiciary. The whole judiciary was politicised and turned into a bureau in charge of the cases of a political party.

Unfortunately, the Constitutional Court, which has taken on the function of balance and control over the power of the legislative and the executive, participated in this caravan and lost its national and international reputation.

But isn’t the judiciary the only sanctuary of the people in times of oppression, oppression or dictatorship? Only a strong judicial regime can stop a strong administrative mechanism that is corrupt or that shows signs of being corrupt.

But the Constitutional Court did not do this. On the contrary, it said ‘yes’ to the government’s every request. It made decisions according to individuals and instructions, and not according to its own principles and case laws. For this reason, the case law of the AYM is no longer relevant.

Let us further exemplify the situation. Many journalists and political figures have applied to the AYM. There is a belief in the law that no case is alike, as the material and spiritual elements of the crime can vary from case to case. Although, there was a point in these applications where exceptional circumstances could emerge, nearly all elements of the crimes were the same for every applicant.

The applicants’ world views and lifestyles were all different. They even ruthlessly criticised each other in their day-to-day lives. From the Altan brothers to Nazlı Ilıcak, from Şahin Alpay to Ahmet Şık, from Akın Atalay to Hidayet Karaca and from Selahattin Demirtaş to Enis Berberoğlu, they all had different world views.

However, the crimes they were charged with were the same: a few articles or speeches that would not make the ruling party happy. No harm that anyone could see had been caused by their actions. But these people, in the absence of any evidence, were linked to incidents that under normal circumstances they could not be linked to.

The AYM (Constitutional Court) signed a different decision on the 11th of January, 2018. Why so?

What was the AYM doing, then? It denied all the applications. As a result, the task of the AYM was not to protect the people in accordance with the constitution and international contracts but to protect the state from the people with the help of the ruling party.

However, although I doubt its sincerity, the AYM signed a very different decision a while back. On the 11th of January, 2018, it ruled that the right to freedom and security of Mehmet Altan and Şahin Alpay and their right to express themselves in print had been violated, and showed that sometimes it could act lawfully. But now that the court has lost respect, the local courts for the first time in our legal history did not observe this decision, even though there is a legal obligation to comply. This was partly as a result of the declaration by the ruling party not to recognize decisions made by the AYM.

The two applicants had no other choice than to go to the ECtHR and once again justice was expected from Europe. Finally, in February, the ECHR found a violation of the law. Of course, with the opposition annotation of the Turkish judge. When Işıl Karakaş was withdrawn from the case in the ECtHR, Ergin Ergul was appointed as an ad-hoc judge. But Ergul did not immediately write the reason for the opposition, and the announcement of the decision was postponed until the 20th of March.

Meanwhile, other extraordinary developments began to take place. The European Council (EC) Secretary General Thorbjørn Jagland visited Turkey in February and advised considering the importance of the law. Finally, Jagland issued critical warnings in the speech he made to the Foreign Affairs Commission of the European Parliament on the 13th of March. After Jagland’s remark that, “if the AYM decisions are not respected, all of the applications made to that court will come directly to the ECtHR. If the ECtHR decides that the AYM is no longer an effective domestic remedy, then it will rule on these cases,” an unexpected move was made by the AYM and Sahin Alpay’s second application came to the fore.

But again, as reflected in the press, this move was made after reaching a consensus with ‘the top executive’. Some preparations were made in advance. On the 1st of February 2018, the Ministry of Justice was asked what it was going to say to these applications. In order to avoid wasting time, the Ministry of Justice said it would not comment. The AYM put Part 1 on the agenda of the General Assembly on the 13th of March 2018. The General Assembly issued an 18-page decision within two days and on the 15th of March 2018, it ruled that the aforementioned application was right and lawful and requested that the applicant be released. The local court, which did not exercise the previous decision and severely criticised it, for some unknown reason, released the applicant who is now seventy years old and in very ill health, provided that the applicant was kept under house arrest.

What justification will the ECtHR declare on the 20th of March?

But it was not clear why the court, despite a clear ruling by the AYM, had the prisoner put under house arrest, considering that he is elderly and sick and needs to be treated in a hospital.  As a matter of fact, the ECtHR has investigated a similar problem in the Buzadji/Moldavian decision and said that it did not consider house arrest to be any different from detention.

Meanwhile, Mehmet Altan’s application was not taken forward because the judgment on his case had been ruled. The CMK (art. 2), however, accepts that the suspect is under suspicion of committing a crime until a verdict has been reached and the prosecution phase includes the period from the acceptance of the indictment to the finalisation of the judgment. For this reason, Mehmet Altan’s situation is no different from that of Şahin Alpay’s. Both men are under suspicion of having committed a crime in the prosecution phase. While the AYM should have ruled in favour of the applicants, as there was clearly no justification for their arrest in the first place, they have chosen not to take the first arrest into consideration.

The fact that Mehmet Altan’s case has not been addressed makes us very curious to see what the ECtHR will reveal on the 20th of March as a justification against Şahin Alpay being released and put under house arrest.

That the ruling party has remained silent over the second Alpay decision can be explained by the fact that this demand was made on their request, and by no means because of their respect for the law. By doing this, the ruling party, which thinks that the AYM being shown to be ‘ineffective’ can be avoided, will be able to continue the persecution of these people for five to ten years in the local courts and the AYM.

It is a good sign that the unlawfulness is being discussed internationally

It is also difficult to say whether or not the ECtHR will consider the AYM to be ‘ineffective’ because of the thousands of cases that are then likely to come to them. One should also not forget Turkey’s generous donations to the Council of Europe’s budget.

Although there is currently no significant change in the core values and understanding of justice in the AYM, the ECtHR, the EC and the ruling coalition, it is a sign of a brighter future that the unlawfulness of the investigations and prosecutions is being discussed internationally.

These decisions made by the AYM and the ECtHR will affect the situation of all the victims in recent years. As investigations are being carried out without evidence and are based only on feelings, beliefs and ideas, the applications of all these victims to national and international legal mechanisms will result in justice being exercised earlier.