UN/WGAD has issued a new assessment on detention, arrest and conviction in Turkey based on the alleged use of the ByLock

Muharrem Gençtürk was an Associate Professor of Commercial Law at Akdeniz University in Antalya. As public employees, both Mr. Gençtürk and his wife were dismissed from their jobs under Statutory Decree No. 672 issued on 1 September 2016, which resulted in the dismissal of around 50,000 people.

Mr. Gençtürk was taken into custody on 29 July 2016. Mr. Gençtürk’s house was reportedly raided by three police officers from the Antalya Police Department at around 5.30 a.m. with the whole family present. The police officers did not allow him to take any clothes or money with him.

Mr. Gençtürk was initially held at Serik Police Station in Antalya for 18 days. During the first five days of his detention he was not allowed to talk to anyone, including his lawyer. When he was finally allowed to meet his lawyer, they could reportedly only speak in the presence of a police officer and in front of a voice recorder.

On 15 August 2016, a prosecutor reportedly interrogated Mr. Gençtürk, and he was released on parole. However, after less than half an hour, he was suddenly taken back into custody, and this time he was arrested by the Antalya Fifth Criminal Court of Peace. Since then, he has been held at Antalya High Security Prison.

Mr. Gençtürk is charged with membership of a terrorist organization under article 314 of the Turkish Criminal Code due to his supposed use of the ByLock application and due to the fact that his children attended schools related to the Gülen organization.

Using Bylock App is within scope of Freedom of Expression:

In fact, it appears to the Working Group that even if Mr. Gençtürk did use the ByLock application, an allegation that he denies, it would have been mere exercise of his right to freedom of expression. To this end, the Working Group notes that freedom of opinion and freedom of expression as expressed in article 19 of the International Covenant on Civil and Political Rights are indispensable conditions for the full development of the person; they are essential for any society, and indeed, constitute the foundation stone for every free and democratic society.

The Working Group concludes that the arrest and detention of Mr. Gençtürk based upon allegedly using Bylock is violation of the Universal Declaration of Human Rights and article 19 of the International Covenant on Civil and Political Rights.

Violation Regarding Right to Defense:

Mr Gencturk was able to see his lawyers only for 20 minutes a week, UN WGAD concludes that weekly meetings of a mere 20 minutes’ duration with lawyer cannot be said to provide an opportunity to adequately prepare for a defence in such a complex case as terrorism charges. The Working Group therefore considers that there has been a serious breach of article 14 (3) (b) of the International Covenant on Civil and Political Rights.

The Working Group also notes that the failure to allow the defence to examine the secret witnesses bears the hallmarks of a serious denial of equality of arms in the proceedings and is in fact a violation of article 14 (3) (e) of the International Covenant on Civil and Political Rights

Violation Regarding Right to Fair Trial:

The Working Group points out that there was a strong appearance of lack of impartiality and independence on the part of the court, as it put questions to Mr. Gençtürk such as “Are you going to say something different from the others?” and the prosecutor reportedly fell asleep during the trial.

The Working Group also notes the submission by the source that in response to the application for release made on behalf of Mr. Gençtürk, the decision delivered by the judge was a copy-and-paste decision with exactly the same decision and reasoning as was delivered to other defendants, with only the names being different. The Government had the opportunity, but has failed, to address this allegation. The Working Group notes that a failure to provide a reasoned judgment in the case of Mr. Gençtürk constitutes a breach of article 14 (5) of the International Covenant on Civil and Political Rights, as it effectively prevents prospective appellants from enjoying the effective exercise of the right to appeal.

Violations within Scope of Category V has been committed, in other saying the deprivation of liberty constitutes a violation of international law on the grounds of discrimination based on birth, national, ethnic or social origin, language, religion, economic condition, political or other opinion, gender, sexual orientation, disability, or any other status, that aims towards or can result in ignoring the equality of human beings.

The Working Group renders the following opinion:

The deprivation of liberty of Muharrem Gençtürk, being in contravention of articles 8, 10 and 19 of the Universal Declaration of Human Rights and of articles 2 (3), 9 (3), 14, 19 and 26 of the International Covenant on Civil and Political Rights, is arbitrary and falls within categories I, II, III and V
The Working Group requests the Government of Turkey to take the steps necessary to remedy the situation of Mr. Gençtürk without delay and bring it into conformity with the relevant international norms, including those set out in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.
The Working Group considers that, taking into account all the circumstances of the case, the appropriate remedy would be to release Mr. Gençtürk immediately and accord him an enforceable right to compensation and other reparations, in accordance with international law.
The Working Group urges the Government to ensure a full and independent investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr. Gençtürk and to take appropriate measures against those responsible for the violation of his rights.
The Working Group requests the Government to disseminate the present opinion through all available means and as widely as possible.

Mestan Yayman, is a Turkishnational, was a Vice-Governor of the city of Antalya. He was suspended from hisduty as a civil servant on 29 August 2016 and was subsequently dismissed fromhis job under Statutory Decree No. 672, issued on 1 September 2016, under whichabout 50,000 people were dismissed.

On 1 September 2016, he was taken into custody, Mr. Yayman was not allowed to see his attorney for the first five days of his detention. When he was finally allowed to meet her, they could speak only in the presence of a police officer and in front of a voice recorder.

Mr. Yayman was subsequently released on parole, at around 8.30 p.m., however, the following day, on 8 September 2016, Mr. Yayman was taken into custody and was arrested based on statements from one individual.

10 months after his arrest, he was accused of using the ByLock application in December 2014, based on an intelligence report. Mr Yayman was sentenced to seven years and six months. The court noted that Mr. Yayman was included on the Turkish intelligence service’s list of names, the so-called arrest list, but it failed to show the content of his supposed chats on ByLock.

The Working Group notes the failure on behalf of the Government to show how the mere use of such a regular communication application as ByLock by Mr. Yayman constituted an illegal criminal activity. While the Government has argued that the tribunal requested and obtained the record of the accused’s conversations through the Bylock system, it failed to specify how these conversations could have been construed as criminal activity. Noting the widespread reach of the Gülen movement, as documented in the report of the Council of Europe Commissioner for Human Rights, “it would be rare for a Turkish citizen never to have had any contact or dealings with this movement in one way or another”.

Using Bylock App is within scope of Freedom of Expression:

It appears to the Working Group that even if Mr. Yayman did use the ByLock application, an allegation that he denies, it would have merely constituted exercise of his right to freedom of opinion and freedom of expression. Article 19 (2) of the International Covenant on Civil and Political Rights protects all forms of expression and the means of their dissemination, including all forms of audiovisual, electronic and Internet-based modes of expression (para. 12).

Attending religious meeting is within scope of right to freedom of peaceful assembly and association:

In relation to Mr. Yayman’s attendance of the meetings of the Gülen group in 2013, the Working Group once again observes the failure on behalf of the Government to specify how mere attendance at peaceful and, at that time, legitimate meetings breached the right to freedom of peaceful assembly and association and was contrary to articles 21 and 22 of the International Covenant on Civil and Political Rights The Working Group therefore concludes that the arrest and detention of Mr. Yayman resulted from his exercise of the rights guaranteed under articles 19, 21 and 22 of the Covenant, falling under category II.

Request for Independent Expert Report was denied and The Government did not address these allegations:

The Working Group notes the allegation by the source that during Mr. Yayman’s trial, the judge denied his request for another expert statement as to whether the ByLock application was found on his telephone. The judge also allegedly denied witnesses on behalf of Mr. Yayman the right to be heard. The Government did not address these allegations directly, although it had the opportunity to do so.

The Right to Legal Counsel was violated:

The Working Group notes that prior to the trial proceedings, Mr. Yayman was denied the possibility to meet with his lawyer in private, as a guard with a tape recorder was always present during those meetings. In this respect, the Working Group notes that, as indicated by the Human Rights Committee in its general comment No. 32, the right to communicate with counsel, as enshrined in article 14 (3) (b) of the International Covenant on Civil and Political Rights, entails the requirement that legal counsels should be able to meet their clients in private and to communicate with the accused in conditions that fully respect the confidentiality of their communications (para. 34). That right was denied to Mr. Yayman. Moreover, the meetings with his lawyer were restricted to a mere 20 minutes, a time period so short that it cannot be said to satisfy the requirements of article 14 (3) (b). In addition, once the trial proceedings commenced, Mr. Yayman was prevented from speaking to his lawyer before both trial hearings, which is a further violation of article 14 (3) (b) of the International Covenant on Civil and Political Rights

The Working Group also recalls that, as the Human Rights Committee stated in its general comment No. 32, article 14 (3) (e) of the International Covenant on Civil and Political Rights provides for the right to have witnesses admitted that are relevant for the defence and to be given a proper opportunity to question and challenge witnesses against them at some stage of the proceedings (para. 39). The Working Group thus considers that there have been serious prima facie breaches of Mr. Yayman’s rights under article 14 (3) (e) of the Covenant as well.

The Right to Fair Trial was violated:

In addition, the Working Group observes that the trial judge made requests for the defence to keep defence short and that the court heard the testimony from a key witness in the absence of both Mr. Yayman and his lawyer. The Working Group especially notes that the Government has failed to provide any reasons as to why the key witness was heard without the presence of Mr. Yayman and his lawyer. This is a further serious denial of Mr. Yayman’s rights under article14 (3) (e) of the International Covenant on Civil and Political Rights

The Working Group therefore concludes that there has been partial non-observance of the international norms relating to the right to a fair trial in the case of Mr. Yayman, as he was denied the right to adequate time and facilities to prepare for his defence and was prevented from presenting evidence and examining witnesses on his behalf. The Working Group finds that this partial non-observance was of such gravity as to give his deprivation of liberty an arbitrary character (category III).

In all those cases, the Working Group has found the detention of the individuals concerned to be arbitrary and it thus appears to the Working Group that a pattern is emerging whereby those who have been linked to the group are being targeted, despite never having been active members of the group or supporters of its criminal activities. The Working Group therefore considers that the detention of Mr. Yayman was arbitrary since it constitutes discrimination on the basis of political or other opinion or status and falls under category V.

The Working Group renders the following opinion:

Thedeprivation of liberty of Mestan Yayman, being in contravention of articles 3,9, 10, 19 and 20 of the Universal Declaration of Human Rights and of articles9, 14, 19, 21, 22 and 26 of the International Covenant on Civil and PoliticalRights, is arbitrary and falls within categories I, II, III and V.
TheWorking Group requests the Government of Turkey to take the steps necessary toremedy the situation of Mr. Yayman without delay and bring it into conformitywith the relevant international norms, including those set out in the UniversalDeclaration of Human Rights and the International Covenant on Civil andPolitical Rights.
TheWorking Group considers that, taking into account all the circumstances of thecase, the appropriate remedy would be to release Mr. Yayman immediately andaccord him an enforceable right to compensation and other reparations, inaccordance with international law.
TheWorking Group urges the Government to ensure a full and independentinvestigation of the circumstances surrounding the arbitrary deprivation ofliberty of Mr. Yayman and to take appropriate measures against thoseresponsible for the violation of his rights.
The Working Grouprequests the Government to disseminate the present opinion through allavailable means and as widely as possible.

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