Communications Nos. 3923/2021 and 3924/2021: Decision/Views

The authors of the communications are İ.K. and E.T., nationals of Türkiye born in 1989 and 1977, respectively. They claim that the State party has violated their rights under article 14 of the Covenant. The Optional Protocol entered into force for the State party on 24 February 2007. The authors are represented by counsel.

On 30 September 2021, the State party requested the Committee to examine the admissibility of the communications separately from the merits. On 5 May 2023, counsel provided comments on the State party’s request. On 12 May 2023, the Committee, acting through its Special Rapporteurs on new communications and interim measures, acceded to the State party’s request.

On 15 July 2016, a failed attempt to overthrow the Government of Türkiye took place. At the time, İ.K. was working as a clerk in a court. He had been employed in that capacity for seven years after completing his university education. On 25 August 2016, he was arrested and was taken into custody for alleged membership of a terrorist organization. He was detained for seven days and was not permitted to see his lawyer until the seventh day. On 1 September 2016, he was placed in pretrial detention in Izmir by the seventh Criminal Judgeship of Peace. No evidence was presented against him.

Thereafter, İ.K. was dismissed from his employment under article 1 (1) of Decree Law No. 675. Published on 29 October 2016, the Decree Law named individuals who were allegedly affiliated with terrorist organizations and ordered their dismissal from public office. A lifetime ban on returning to public service was also imposed on İ.K.

On 6 December 2016, an indictment was filed against İ.K. He was charged with membership of the Fetullah Terrorist Organization (FETÖ). According to the indictment, İ.K. was accused of having used the ByLock digital application, and a witness had made a statement against him.

On 17 January 2017 and 7 March 2017, the Izmir thirteenth Heavy Penal Court held hearings on the author’s case. On 7 March 2017, the Court convicted İ.K. of being a member of an armed terrorist organization. The reasoned decision contained a description of the terrorist organization, witness testimony against İ.K., a few messages that İ.K. had allegedly sent through the ByLock application, İ.K.’s personal testimony and banking records for İ.K. and his father. The content of the messages that had allegedly been sent through the ByLock application was not unlawful. The Court sentenced İ.K. to a term of imprisonment of nine years and nine months.

On 7 April 2017, the second Penal Chamber of the Court of Appeal of the Izmir District Court of Justice rejected İ.K.’s appeal against the conviction. It reasoned that there had been no deficiencies in the evidence or proceedings before the court of first instance, which had made an appropriate assessment and had described the relevant acts correctly.

On 19 July 2017, the sixteenth Criminal Chamber of the Court of Cassation upheld İ.K.’s conviction, reasoning, inter alia, that the ByLock application was used exclusively by members of the Fetullah Terrorist Organization, that according to witness accounts, İ.K. was included in the hierarchical structure of that organization, and that all of the evidence gathered against him had been lawfully acquired.

Subsequently, İ.K. filed an application to the Constitutional Court, arguing that he had not enjoyed a fair trial, had been arbitrarily detained, had been deprived of liberty and security, and had been subjected to ill-treatment. On 15 January 2019, the Constitutional Court rejected that application on several grounds.

After graduating with a law degree in Istanbul, E.T. began a judicial internship. The failed coup d’état occurred while he was serving as a judicial intern. Thereafter, he was dismissed from public service under Decree Law No. 672.

Subsequently, E.T. applied to be registered as an attorney with the Istanbul Bar Association. On 9 March 2017, the Bar Association rejected his application. On 30 March 2017, he filed an objection with the Union of Turkish Bar Associations in Ankara. On 30 June 2017, the Union accepted his objection, and the Istanbul Bar Association accepted his registration as an attorney.

On 25 July 2017, the Ministry of Justice filed a motion before the Ankara fourteenth Administrative Court to stay the execution of the decision of the Union of Turkish Bar Associations of 30 June 2017. The Ministry of Justice argued that individuals who had been dismissed from public service employment could not later resume such employment. The Ministry of Justice argued that because registration as an attorney qualified as public service, E.T. should not be permitted to practise law again. On 2 October 2017, the Ankara fourteenth Administrative Court issued a stay of execution, agreeing with the reasoning of the Ministry of Justice.

On 26 September 2017, the Union of Turkish Bar Associations filed an objection to that decision. On 2 November 2017, the Board of Directors of the Istanbul Bar Association decided to delete E.T.’s name from its list of attorneys.

On 24 January 2018, E.T. requested permission to intervene in the case before the Ankara fourteenth Administrative Court. Subsequently, his lawyer filed a motion to dismiss the case. On 31 January 2018, the Ankara fourteenth Administrative Court decided that E.T. could not practise law because persons who had been dismissed from public service during the state of emergency, pursuant to article 2 (1) of Decree Law No. 672, could not be directly or indirectly employed in public service.

On 28 February 2018, the Union of Turkish Bar Associations filed an appeal against that decision. On 5 June 2018, the twelfth Chamber of Administrative Appeals of the Ankara Regional Administrative Court rejected the appeal on the ground that the contested decision was lawful.

On 27 July 2018, E.T. lodged an application before the Constitutional Court. He alleged a violation, inter alia, of all of the rights protected under article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights), which relate to a fair trial. On 5 February 2019, the Constitutional Court rejected the application. It considered that there was no obvious error of appreciation or any apparent arbitrariness in the contested decision.

The two authors maintain that, while they lodged applications before the European Court of Human Rights in 2019, those applications do not concern the same matters raised in the present communications.

İ.K. claims that the State party violated his rights under article 14 of the Covenant because the Constitutional Court has lacked independence and impartiality since the attempted coup on 15 July 2016. In 2016, two members of the Constitutional Court were taken into custody and were later detained. In 2018, they were removed from office without a public hearing and without a fair procedure, under article 3 of Emergency Decree Law No. 667. Since 2016, the Constitutional Court has received many applications relating to arbitrary detention and has dismissed almost all of them without examining the claims raised. The members of the Constitutional Court are exposed to a continuous risk of dismissal and prosecution. They are not guaranteed immunity from prosecution. On 16 July 2016, the former Deputy President of the Constitutional Court was arrested, detained and accused of being a member of a terrorist organization. In August 2016, he was dismissed. Further incidents that cast doubt upon the independence of the Constitutional Court have since followed.

E.T. maintains that the State party violated his rights under article 14 of the Covenant because the administrative courts of the first and second instances lacked independence. In addition, the Constitutional Court, having itself lost its independence and impartiality, did not represent an effective avenue either to contest the flawed lower court decisions or to provide an effective remedy. The Constitutional Court did not examine E.T.’s specific arguments. The Constitutional Court, by dismissing in 2016 two of its members without any reasoning or a fair procedure, demonstrated a lack of independence. Moreover, the Constitutional Court does not have the competence to review measures imposed under decree laws. The Constitutional Court has also rejected, without proper examination, many appeals involving claims that the courts lack independence and impartiality.

In its submissions on admissibility of 30 September 2021 and 26 September 2023, the State party provides background information on the Fethullah Terrorist Organization and on the situation of the authors. Each author filed two applications to the Constitutional Court. The Constitutional Court declared their first applications inadmissible because the authors had not exhausted domestic remedies.

The State party considers that the communication of İ.K. is inadmissible under article 5 (2) (a) of the Optional Protocol. His allegations regarding the impartiality and independence of the State party’s judicial system were set forth in his application to the European Court of Human Rights, which contained allegations that the Constitutional Court had not been independent or impartial in assessing his case. When the European Court examines applications concerning the effectiveness of a judicial body, it examines the independence and impartiality of that judicial authority.³ Between 23 September 2012 and 30 June 2023, when the remedy of an individual application to the Constitutional Court became available, 519,539 individual applications were lodged, of which 400,877 have been decided. The Constitutional Court found a violation in 98.4 per cent of the applications that it decided to examine on the merits (70,058 out of 71,224 applications). Thus, the Constitutional Court is clearly functional and effective as an impartial and independent judicial body, as the European Court has repeatedly found.⁴

3. For example, European Court of Human Rights, Draniceru v. Republic of Moldova, Application No. 31975/15, Decision, 12 February 2019, paras. 21 and 30. ↩
4. For example, European Court of Human Rights, Çatal v. Türkiye, Application No. 2873/17, Decision, 7 March 2017. ↩

The communication of İ.K. is also inadmissible under rule 99 (b) of the Committee’s rules of procedure because İ.K.’s father submitted the communication and İ.K. did not explain why he could not sign the authorization form provided by counsel. İ.K. applied to the Constitutional Court personally and to the European Court of Human Rights through his lawyer.

In addition, the communication of İ.K. is inadmissible because it is unsubstantiated and manifestly ill-founded. In the cases of Mehmet Altan and Şahin Alpay, the Constitutional Court found in favour of two journalists regarding human rights issues. Following the decisions of the Constitutional Court on those cases, the lower courts ordered the release of the two individuals and they were released, thereby remedying the violations in question. İ.K. did not include in his submission references to cases in which the Constitutional Court had found violations of the rights of individuals who had been prosecuted for alleged membership of FETÖ. Such cases include those of Murat Aksoy, Mustafa Baldır and Ali Bulaç.

Moreover, the communication of İ.K. is inadmissible because the author did not exhaust domestic remedies. He did not raise his allegations regarding the independence and impartiality of the Constitutional Court before the domestic authorities. He should have raised that issue under article 60 of Law No. 6216 on the establishment and rules of procedure of the Constitutional Court.

The State party requests the Committee to assess whether the communication is inadmissible under article 5 (2) (a) of the Optional Protocol in the light of the author’s application to the European Court of Human Rights. In addition, E.T. is presently a registered lawyer. On 8 October 2020, Istanbul Bar Association reregistered him as a lawyer. On 28 December 2020, that decision was approved by both the Union of Bar Associations and the Ministry of Justice. E.T. also lodged an application before the Inquiry Commission on State of Emergency Measures regarding his dismissal from his profession. On 21 June 2020, the Commission found in favour of E.T. The communication should therefore be discontinued under rule 104 of the Committee’s rules of procedure, because the domestic authorities have provided a suitable remedy for E.T.’s claims.

The communication is also inadmissible under article 5 (2) (b) of the Optional Protocol because E.T. has not exhausted domestic remedies. Contrary to his express assertion, E.T. did not allege before the Constitutional Court that the administrative courts had lacked independence or impartiality. In many judgments issued after the attempted coup of 2016, the European Court of Human Rights considered that the Constitutional Court represents an effective remedy that must be exhausted by applicants. Doubts regarding the effectiveness of domestic remedies do not constitute an excuse for failing to attempt to exhaust them.

In addition, the communication constitutes an abuse of the right of submission and is therefore inadmissible under rule 99 (c) of the Committee’s rules of procedure. E.T.’s failure to inform the Committee about his updated situation and the incorrect information in his communication demonstrates a lack of good faith on his part.

Lastly, the communication is inadmissible because it is unsubstantiated and manifestly ill-founded. E.T.’s allegation that the Constitutional Court has become an ineffective remedy is baseless.

In their comments of 3 May 2023, the authors dispute the State party’s position and maintain that their communications are admissible. They make extensive allegations relating to the attempted coup, the Gülen movement, the Fethullah Terrorist Organization, the ByLock application, the state of the judiciary in Türkiye and the Constitutional Court. For example, during the state of emergency in Türkiye, more than 5,000 magistrates were removed from office under article 3 of Emergency Decree Law No. 667 of 23 July 2016. As a result of those dismissals, since September 2016, the affected magistrates have filed 5,112 appeals for annulment before the Council of State. According to statistics published by the Council of State in October 2022, some 4,788 judges have received a first instance decision from the fifth Chamber of the Council of State and only 178 decisions of annulment (i.e. 3.7 per cent of the total number of appeals) had been issued by October 2022.

Regarding the authorization provided by İ.K.’s father, İ.K. was in detention when the communication was submitted. After his conviction was confirmed, İ.K. was placed under guardianship by the eleventh Civil Justice of the Peace on 7 November 2017. İ.K.’s father was appointed as his guardian until the end of İ.K.’s custodial sentence, on 14 December 2023. İ.K.’s father was thus his legal representative during that period. Consequently, all acts concerning İ.K., including lawsuits on his behalf, had to be filed by his father or they would have been considered void under domestic law. İ.K.’s counsel also submitted to the Committee an authorization form signed by İ.K. himself, dated 29 September 2023.

İ.K. never submitted the same claim to the European Court of Human Rights or any other international body. Before the Committee, İ.K. has not complained about the ineffectiveness of the Constitutional Court, but rather its lack of independence and impartiality. The State party confuses those two issues. İ.K.’s communication is also based on several concrete facts, findings and evidence. İ.K. disputes the allegations made by the State party regarding the willingness of the Constitutional Court to resolve cases in favour of applicants. Since the attempted coup, the Constitutional Court has rejected thousands of applications without providing reasons.

E.T.’s communication concerns the lack of independence and impartiality of the courts that decided on his registration as a lawyer. The decision of the Inquiry Commission issued in 2021 is not related to the communication and does not remedy the claims that E.T. raised before the Committee. E.T. was not required to inform the Committee about the decision of the Inquiry Commission. The communication does not relate to E.T.’s dismissal from civil service, only to his registration as a lawyer. The violation of his right to a fair procedure was violated in 2019 and no remedy has been provided for it.

Furthermore, the Constitutional Court is an ineffective remedy for complaining about the lack of independence and impartiality of the lower courts. E.T. was therefore not required to raise that argument before the Constitutional Court. Moreover, before the Constitutional Court, E.T. expressly stated that he was alleging violations of all of the rights contained in article 6 of the European Convention on Human Rights, which relates to the right to a fair trial. The Constitutional Court does not even appear to have read E.T.’s application, as it did not respond to several of his claims.

E.T.’s claim regarding the lack of independence and impartiality of administrative courts was never submitted to the European Court of Human Rights or to any other international body.

Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 97 of its rules of procedure, whether the communication is admissible under the Optional Protocol.

The Committee notes the State party’s position that the communications are inadmissible under article 5 (2) (a) of the Optional Protocol because the European Court of Human Rights is examining the same matters. The Committee also notes that the State party has entered a reservation to article 5 (2) (a) of the Optional Protocol, according to which “the competence of the Committee: a) shall not apply to communications from individuals if the same matter has already been considered or is being considered under another procedure of international investigation or settlement”. In their communications, the authors indicated that before submitting their communications to the Committee, they had lodged applications with the European Court of Human Rights. Those applications are pending. The Committee notes the authors’ position that those applications do not concern the same matters that they raised before the Committee. The Committee recalls that, for the purpose of article 5 (2) (a) of the Optional Protocol, the same matter concerns the same authors, the same facts and the same substantive rights. The Committee notes that it is undisputed that the first of those requirements has been met for each author. It also notes that, before both the European Court and the Committee, the authors each argued that the State party had violated their right to a fair and public hearing by an independent and impartial tribunal.

The Committee notes that, in his application to the European Court of Human Rights, İ.K. invoked articles 6 (1), (2) and (3) (c) (right to a fair trial) and 8 (right to respect for private and family life) of the European Convention on Human Rights. He alleged, inter alia, that during the criminal proceedings against him, the principle of a fair trial by an independent and impartial tribunal had been violated because the courts of first, second and third instance in Türkiye were generally subject to political influence and pressure. He also argued that his right to a reasoned decision had been violated because his arguments and, in particular, his application concerning human rights violations had been rejected on irrelevant grounds.

The Committee notes İ.K.’s claim that, while his application to the European Court of Human Rights concerned the lack of independence and impartiality of the administrative courts, his communication to the Committee under article 14 of the Covenant is based only on the lack of independence and impartiality of the Constitutional Court. The Committee notes that the facts underlying each submission relate to the same set of criminal proceedings. The Committee also notes that in his application to the European Court, İ.K. alleged that the Constitutional Court had rejected his claims on an irrelevant basis without examining them. The Committee considers that the facts and substantive right – namely, the right to a fair trial – that İ.K. raised in his communication were raised in his application to the European Court. Thus, the Committee considers that the two submissions involve the same matter within the meaning of article 5 (2) (a) of the Optional Protocol.

The Committee notes that, in his application to the European Court of Human Rights, E.T. alleged violations, inter alia, of articles 6 (1) and (2) and 8 of the European Convention on Human Rights. He alleged that the Constitutional Court was not independent, that the procedures pursuant to which he had been declared a member of a terrorist organization were arbitrary, that his right to be presumed innocent had been violated, and that the practices preventing him from practising as a lawyer had no legal basis and were wholly disproportionate.

Meanwhile, E.T. submits that his claim under article 14 of the Covenant before the Committee concerns the lack of independence and impartiality of the administrative courts, not the Constitutional Court. E.T. asserts that he did not raise the latter issue in his application to the European Court of Human Rights. However, the Committee notes that E.T.’s submissions to the Court and the Committee concern the fairness of the same set of court proceedings relating to E.T.’s disqualification from practising law. The Committee also notes that, in his submission to the Committee, E.T. alleged that the Constitutional Court lacked independence and impartiality and could therefore not remedy the errors of the lower courts. The Committee therefore considers that the facts and substantive right that İ.K. raised in his communication were raised in his application to the European Court. Thus, the Committee considers that the two submissions involve the same matter within the meaning of article 5 (2) (a) of the Optional Protocol.⁵

5. V.Ø. v. Norway, communication No. 168/1984, decision of 17 July 1985, para. 4.4. Contrast with G.A.P. v. Romania (CCPR/C/137/D/3662/2019), para. 8.2. ↩

Accordingly, since the same matters are being examined by the European Court of Human Rights, the Committee concludes that it is precluded by article 5 (2) (a) of the Optional Protocol from examining the present communications.

In the light of its findings, the Committee does not deem it necessary to examine other grounds of admissibility.

The Committee therefore decides: (a) That the communications are inadmissible under article 5 (2) (a) of the Optional Protocol;