Dr. Bahadır ASLAN
The United Nations Human Rights Committee made an important decision in the file number 3736/2020 on the issues of wrongful arrest, poor prison conditions and the violation of the right to a fair trial. The application to the Committee was made by Mukadder Alakuş, a national of Türkiye born in 1971 who is currently held in Eskisehir Type L Closed Prison. Ms. Alakuş was accused of being a member of the Gülen Movement, which is considered a Terrorist Organization (FETÖ) in Turkey. The accusations of membership in a terrorist organization against him are based on the fact that he deposited money in his Bank Asya accounts, downloaded the Bylock application on his phone, and attended a peaceful rally.
The applicant was taken into custody on 4 September 2018 and held in custody for one day without food, water or medication. The applicant was arrested by the court on 5 September 2018 and transferred to Eskişehir H Type Prison on the same day. She was forced to live in bad conditions in prison.
The applicant applied to the United Nations Human Rights Committee within the scope of the International Covenant on Civil and Political Rights due to his unlawful arrest, poor prison conditions and the violation of his right to a fair trial. In the application, it is claimed that Turkey has violated applicant rights under articles 6, 7, 9, 10, 14, 15, 18, 19, 21, 22, 25, 26 and 27 of the Covenant.
In its assessment, the Committee particularly emphasized that it is a violation of rights to use as a basis for an arrest and conviction decision the Bylock messaging program used as evidence in both the arrest warrant and the conviction decision, having a Bank Asya account and participating in a peaceful meeting, which is not defined as crimes or prohibited under domestic law. When the assessment of the committee given below are examined in detail, it will be seen that the provisions of the Covenant were clearly violated and the requirements of the right to a fair trial were not fulfilled in the process of making arrest and conviction decisions by the courts in Turkey. In fact, these determinations of the committee mean that the systematic and widespread violations of rights experienced in the investigations and trials against members of the Gülen Movement after the 15 July Coup Attempt are determined and accepted by the Committee.
A. THE DETERMINATION OF THE FACT THAT THE APPLICATION TO THE CONSTITUTIONAL COURT IS NOT AN ACTIVE DOMESTIC REMEDY
On admissibility, the State party submits that the author has failed to exhaust domestic remedies, as her individual application before the Constitutional Court 7 is currently pending and was lodged after submitting the present communication. ( 4.2)
The author reiterates her claim that an individual application to the Constitutional Court does not offer reasonable prospects of success, pointing to cases where lower courts ignored the judgments of the Constitutional Court. (5.3) On the non-enforceability of the judgements of the Constitutional Court, the author reiterates that this was also raised by the European Court in the Altan, Alpay and Koçintar cases. (7.1)
The Committee notes the author’s argument that filing an individual application before the Constitutional Court is not an effective remedy as: (a) it does not offer reasonable prospects of success for her release, owing to the non-enforcement of the Court’s judgements by lower courts; (b) the process would be unreasonably prolonged considering the author’s first attempt to exhaust remedies before domestic courts on 4 September 2018 and the Constitutional Court’s backlog. (9.5) The Committee finds that, in the circumstances of the author’s case, the State party has not shown that an individual complaint to challenge the author’s detention before the Constitutional Court would have been effective, in practice. (9.5)
As can be seen, while taking into account the past examples the Committee considers that the remedy of individual application to the Constitutional Court is ineffective.
B. RESPONSIBILITY OF PROOF
First of all, when the Committee’s decision is examined, a particular emphasis is placed on the responsibility of the State party to prove its obligations due to its strong position in the process. For this reason, it has placed the burden of proof on the State party in terms of whether the person has been detained in accordance with the law, kept in prison in conditions suitable for human dignity, and fulfilled the requirements of the right to a fair trial. Therefore, in order for the State party to prove that it has fulfilled its obligations, every action must be justified, these justifications must have legal and factual grounds, and most importantly, this must be proven with legal evidence. It is clearly stated that the state party should respond to the claims of the violation of rights with concrete justifications and evidence, instead of demanding the citizen to prove the violation of rights. At this point, what is essential for the citizen is to state that his right has been violated, and for the state, what is essential is to prove with documents and evidence that the claims of the citizen do not reflect the truth.
C. UNLAWFUL DETENTION AND ARREST
The Committee notes the author’s claim under articles 9(1), of the Covenant regarding the unlawful and arbitrary nature of her arrest and detention. The Committee takes note of the author’s claims that her arrest and detention were solely based on her alleged use of the Bylock application, on holding a Bank Asya account and on her participation in a peaceful rally, without solid evidence to suggest a strong suspicion that she had committed a criminal offense; her arrest warrant did not include facts or evidence which would justify her pre-trial detention during such a long period. (Prg.10.2)
Another important issue that the Committee focused on regarding detention and arrest is the concept of “arbitrariness”. The Committee recalls that the notion of “arbitrariness” must be interpreted broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law, as well as elements of reasonableness, necessity and proportionality. The Committee, observes that the State party has only provided a partial copy of the court hearing of 28 December 2018, without providing any further documentation, such as an arrest warrant or detention order, regarding the evidence held against the author that would justify her detention. In these circumstances, the Committee considers that the State party has not demonstrated that the author’s detention met the criteria of reasonableness and necessity. The Committee therefore finds that the authors’ detention amounted to a violation of her rights under article 9 (1) of the Covenant. (Prg.10.3) In other words, the Committee decides that detention and arrest are arbitrary.
As it can be seen, the Committee has not imposed the burden of proof on the applicant’s claims and documents to determine the arbitrariness of the detention measure. The State party’s responses to the applicant’s allegations and the documents submitted by the State party are also taken as a basis for proof. In fact, the Committee has emphasized that a fair process of detention is a right for the individual and that the burden of proving that a detention process in accordance with right of a fair trial is on the State party. At this point, the Committee has not considered the sending of custody and detention documents by the State party sufficient to prove a fair trial and has decided that there is a violation of rights since no other evidence was presented to show that a fair trial was held.
D. THE VIOLATION OF THE RIGHT TO A FAIR TRIAL
Another issue that the Committee focuses on is violations of the right to a fair trial. The Committee notes the author’s allegations under articles 14 (3) (b), (d) and (e), that she was unable to adequately prepare her defense; she was denied access to the entire case file; she was not permitted to call and cross-examine witnesses; she was not allowed to attend her trial in-person despite her request dated 14 December 2018; the conduct of proceedings online and her displaced dentures impeded her from correctly expressing herself. (10.6)
After the Committee has emphasized the State party’s statements here The Committee observes, however, that the State party has not provided sufficient explanations or documentary evidence, such as full transcripts of the judicial proceedings in order to substantiate its refutations of the author’s allegations regarding her right to a fair trial. 10.6 (9)
The Committee further recalls that the burden of proof in relation to factual questions cannot rest on the author of the communication alone, especially considering that the author and the State party do not always have equal access to evidence and that frequently the State party alone has access to relevant information.52 It considers that the State party has not provided sufficient evidence, such as the full transcripts of the judicial proceedings, which would indicate that the author: (a) was able to adequately express herself throughout the proceedings; (b) was able to cross-examine witnesses, and (c) was able to prepare her defense despite her detention conditions. (10.7)
The Committee recalls that under article 14 (3) (d), accused persons are entitled to be present during their trial and that proceedings in the absence of the accused are only permissible if this is in the interest of the proper administration of justice. The Committee also observes that the conduction of trial hearings through video conference systems would not necessarily constitute per se a breach of fair trial guarantees. The Committee notes however that the author addressed a request to the first instance court on 14 December 2018 in order to be present in trial. It considers that in the absence of further relevant information or explanations by the State party, apart from the practical aspects set out in the Izmir Regional Court of Justice’s decision which in particular, justified the conduction of the author’s trial remotely and rejected her request to be present, its 14(3)(b), (d) and (e) articles have been violated.(10.7)
As stated above, the Committee did not consider the State party’s incomplete and general statements as sufficient. It also decided that the right to a fair trial was violated since the State party has not submitted concrete evidence and documents to the Committee regarding the fulfillment of its obligations in line with the allegations of the applicant.
E. THE USE OF BYLOCK AND BANK ASYA ACCOUNT BASIS OF THE CRIMINAL DECISION IS A VIOLATION OF THE RIGHT TO A FAIR TRIAL
The Committee has made important assessments regarding the conviction of the applicant for actions that are not defined as crimes or prohibited under domestic law, such as downloading the Bylock application, sharing information through this application, having a Bank Asya account and attending a peaceful meeting under Article 15 (1) of the Convention.
In this context, the Committee further notes about the decision of the Cassation Court (16.CD. E. 2017/16-956, K. 2017/370) “the involvement of any individual” with the Bylock application “beyond any doubt proves the linking of the individual to the terrorist organization”, (…) “since the Bylock messaging app is a communication network, exclusively designed and developed to fulfill the communication needs of the FETÖ terrorist organization” (Prg.10.4)
At the point of entry to the subject, first of all, the Committee recalls its jurisprudence to the effect that it is incumbent on the courts of States parties to evaluate the facts and evidence in each case or the application of domestic legislation, unless it can be shown that such evaluation or application was clearly arbitrary or amounted to a manifest error or denial of justice (10.5)
Furthermore, The Committee observes that article 314, paragraph 1 of the Turkish Penal Code, defines the crime of membership of an armed terrorist organization as “any person who establishes or commands an armed organization with the purpose of committing the offenses listed in parts four and five of this chapter”. (10.6)
In light of this broad definition, and in the absence of information from the State party regarding the existence of domestic legal provisions which clarify the criteria used to establish the acts constitutive of the crime defined under article 314, paragraph 1, of the Penal Code, the Committee cannot conclude that the author’s alleged use of the Bylock application and Bank Asya account amounted to sufficiently clear and predictable criminal offenses at the time the acts took place. The Committee considers that, as a matter of principle, the mere use or download of a means of encrypted communication or bank account cannot indicate, in itself, evidence of membership of an illegal armed organization, unless supported by other evidence, such as conversation records. In the absence of documentary evidence provided by the State party, the Committee finds, in these circumstances, that the rights of the author under article 15(1) have been violated . (Prg.10.6)
F. POOR PRISON CONDITIONS
Another issue on which the Committee evaluated and ultimately found a violation of the Convention is the conditions of detention in prison, which is incompatible with human dignity.
Since it is a fundamental human right to accommodate the detainee in conditions suitable for human dignity and the State has a positive obligation to ensure this, the Committee also requests the State to prove that it has fulfilled its obligations. However, due to the lack of much information or explanation by the State party in response to the applicant’s allegations and evidence, the Committee concluded that certain minimum requirements were not met and that the State party violated the applicant’s rights under Article 10 (1).
The author claims a violation of her rights under articles 6, 7, 9, 10, 14, 15, and 18 to 27 of the Covenant. She claims that her conditions of detention put her life at risk and amount to inhuman and degrading treatment, in violation of articles 6, 7 and 10 of the Covenant. The prison is overcrowded and there is not enough food or access to hot water for all inmates. Drinking water for detainees is distilled from the ceiling. The unhygienic conditions of detention and her lack of access to adequate medical treatment and food have deteriorated her medical condition and increased her risk of death..(3.1)
The Committee observes that, the State party has not provided any information to refute the author’s allegations regarding her conditions of detention in police custody and in Eskisehir Type H Prison. It notes that the State party’s information regarding the available floor space at Eskisehir Type L Prison is presented in general terms, without providing information about the number of inmates the author shares her prison cell with nor the specific floor space available to her. The Committee further notes that the State party has not refuted the author’s allegation regarding her sleeping conditions, her effective lack of access to an adequate diet and inaccessibility of the toilets, considering her knee condition and the absence of a caretaker. The Committee considers that, in the circumstances of the present case, and in particular in the light of the general nature of the information provided by the State party, due weight must be given to the author’s allegations. The Committee recalls that persons deprived of their liberty must not be subjected to any hardship or constraint other than that resulting from the deprivation of liberty. Under the circumstances as described, and in the absence of further relevant information or explanations by the State party, the Committee concludes that several minimum requirements were not met and that the State party violated the rights of the author under article 10 (1). (10.5)