Extraordinary rendition from Malaysia to Turkey, violation of security and safety of person

Facts

The authors are three Turkish nationals who claim the state party violated their rights under articles 6, 7, 9, 19 and 14 of the Covenant. 

In an initial complaint, family members of the authors claimed that they were being held incommunicado detention at an unknown location in Turkey and were at risk of being subject to torture. The Committee intervened with interim measures, requesting that the state party take all measures necessary to promptly bring the authors before a judge and give them access to a lawyer. The Committee later rejected the state party’s request to lift interim measures.

The authors were detained as they were considered to be connected with the Gülen movement by Turkish authorities.

In 2017, the authors were residing in Malaysia, however submit that they were unlawfully deprived of their liberty under Malaysian anti-terrorism legislation by individuals acting under the control or instructions of the Turkish authorities. Controlled-circuit TV revealed one of the authors being forced into a car by five unidentified persons in an underground parking garage. 

It became clear to the author’s family that the authors were detained in police headquarters in Kuala Lumpur, where they did not have access to a lawyer or to their case files.

In May 2017, the authors were removed to Turkey despite the fact that no extradition hearing had been conducted, and no judicial decision had been made. Upon arriving in Turkey, the authors were held in incommunicado detention at an unknown location. 

Complaint

• At the time of the initial submission, the authors claimed that they were at imminent risk of being tortured and ill-treated, in violation of their rights under articles 6, 7, 9 and 10 of the Covenant.
• 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. 
• They argued that they had been arbitrarily and unlawfully deprived of their liberty in violation of their rights under article 9 of the Covenant.
• The authors also claimed that they had been subjected to ill-treatment in violation of their rights under article 7 of the Covenant. As a result, health problems of one of the authors has drastically worsened. The authors also submit that they have been threatened with solitary confinement.
• The authors further claimed that their detention incommunicado constituted a violation of their rights to liberty and security of person under article 10 of the Covenant, on the basis that their families were not informed of their transfers, had no opportunity to communicate and were also kept in overcrowded cells. 
• Finally, the authors also complained that they had not been informed of the charges against them and had no access to legal justice, in violation of article 14 of the Covenant. 

Admissibility

• The Committee noted that author the authors did not have any knowledge of the Turkish criminal justice system, the Committee recalled that authors of communications must exercise due diligence in the pursuit of all available remedies.
• In light of this, and in the absence of any further information as to due diligence undertaken by the authors, the Committee found that authors had failed to exhaust all domestic remedies with respect to the authors’ claims under articles 6, 7, 10 and 14, and consequentially found these inadmissible pursuant to article 5 (2) (b) of the Optional Protocol.
• Further, the information on file noted that the authors were detained by Malaysian authorities prior to their removal to Turkey. In the absence of any other information, the Committee could not conclude that the authors were removed to Turkey under the effective control of Turkish authorities as to engage the jurisdiction of Turkey. On this basis, the Committee found the portion of the complaint of a violation of article 9 as it related to the authors detention and removal in Malaysia inadmissible under article 1 of the Optional Protocol.

Merits

The Committee recalled that with respect to the authors claim of a violation of article 9, that the test for a violation if whether or not the detention was arbitrary – which 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.

In this case, the Committee found that the state party had not established that the authors were promptly informed of the reasons for their arrest, nor substantiated that their detention was reasonable or necessary. On this basis, the Committee found a violation of article 9(1) and (2) of the Covenant.

Further, the Committee considered that on the evidence provided, it took 11 days before the authors were brought before a judge, and consequently were not promptly brought before a judicial officer, as guaranteed by the Covenant. Additionally, and in light of the findings above regarding article 9(1) and (2), the Committee found that the lack of re-examination of the authors’ continued detention could not be considered as strictly required by the exigencies of the situation, and accordingly found a violation of the authors’ rights under article 9 (3) of the Covenant.

Recommendations

• Pursuant to article 2 (3) (a) of the Covenant, the State party is under an obligation to provide the author 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.
  • take all steps necessary to prevent similar violations from occurring in the future.

Separate Opinions

Individual opinion of Committee member Gentian Zyberi (partly concurring, partly dissenting)

• Committee member Gentian Zyberi issued an individual opinion in full agreement with the finding that the case reveals a violation of article 9(1-3) of the Covenant, on the basis that Turkey could not establish that the authors were promptly informed of the charges against them, nor that the detention meets the requirements of necessity and reasonableness.
• However, member Zyberi dissented on the finding of admissibility with respect to article 9 of the Covenant more generally. The member noted that the authors alleged they were victims of abduction, and were removed to Turkish intelligence officials without any judicial hearing or legal process. In this manner, Zyberi argued that Turkey should be found responsible for its complicity, direction and active role in placing the authors outside the protection of the law in their removal from Malaysia. 
• Member Zyberi also dissented on the finding of admissibility regarding articles 7, 10 and 14, pursuant to article 5 (2) (b) of the Optional Protocol. The member recalled the general legal system in Turkey being negatively affected because of the coup, and also that the author’s counsel actively appealed their detention without success – including their allegations of ill-treatment. On this basis, member Zyberi considered that the Committee should have placed more emphasis on article 5(2)(b) of the Optional Protocol, which justifies the non-exhaustion of domestic remedies where their application is unreasonably prolonged. 

Implementation

The Committee requested that the state party provide an update outlining measures taken to give effect to the Committee's views within 180 days, or prior to 26 September 2019.

Committee’s assessment 136th session (CCPR/C/136/3):

• (a) Release the authors: E;
• (b) Provide them with adequate compensation: E;
• (c) Non-repetition: E.

Committee’s decision: Follow-up dialogue ongoing.