Ahmet Akdoğan v. Türkiye

The author of the communication is Ahmet Akdoğan, a national of Türkiye born in 1947. He claims that the State Party has violated his rights under articles 2, 6, 7, 9, 10, 14, 15 and 18–27 of the Covenant. The Optional Protocol entered into force for the State Party on 24 February 2007. The author is represented by counsel.

On 15 July 2016, a failed coup d’état attempt took place in Türkiye. In response, on 20 July 2016, the Government declared a state of emergency. On 5 August 2016, the author was taken into custody by police and detained for two days. On 7 August 2016, he was arrested and transferred to Ödemiş closed prison. He was charged with being a member of the Fetullah terrorist organization (also known as the Gülen movement), which was considered by the State Party to be responsible for the coup d’état attempt. At the time of his formal arrest, the author was forced to sign a document but was not given time to read it properly. In the document, he stated that he had been given enough time and a proper environment to meet with his attorney and had provided his testimony of his own free will.

On 31 July 2018, Uşak heavy penal court convicted the author of being a member of a terrorist organization, downloading and using a digital application called Lib.Tango (an online communication platform used by over 1 million people worldwide), depositing money in Bank Asya and participating in public gatherings and other public activities. He was sentenced to eight years and nine months of imprisonment.

On 21 December 2018, Izmir second regional court denied the author’s appeal against his conviction. The author subsequently appealed his conviction to the Court of Cassation. That appeal remained pending when the communication was submitted.⁵

5. See para. 4.6 below. ↩

Meanwhile, on 10 December 2018, the author applied to the Constitutional Court. He claimed that his arrest and other unlawful procedures had violated his rights under articles 3, 5, 6, 8 and 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights).⁶ That application remained pending when the communication was submitted. The author maintains that the procedure before the Constitutional Court has been unduly prolonged and is ineffective.

6. Those articles concern torture and ill-treatment, liberty and security, fair trial, private and family life, and discrimination, respectively. ↩

On 25 January 2019, the author filed a petition to the Supreme Court to request his immediate release from detention. He argued that he had been convicted for acts that had not been crimes under domestic law at the time in question, in violation of the principle of legality. At the time of submission of the communication, that petition remained pending.⁷

7. On 18 September 2025, the author reported that his petition to the Supreme Court had been rejected on 10 December 2019. ↩

On 29 July 2019, the author filed a request to the Ministry of Justice to be transferred to another prison closer to his family’s residence. On 9 August 2019, his request was denied on the ground that the Ministry of Justice could not act without an assessment from the health board to indicate that the accommodation of the author on a single ward would pose a health risk.

The author claims that domestic remedies are not effective or available to him. His case is political. The domestic proceedings have been unduly prolonged. His ability to pursue domestic remedies is limited by significant restrictions on his access to justice and the lack of impartiality and independence of the courts in Türkiye.⁸ Under the state of emergency in Türkiye, the rule of law has been effectively suspended. Courts are in practice controlled by the executive branch of Government, whose members prosecute alleged Gülen movement supporters as political opponents.

8. The author cites, for example, European Court of Human Rights, Selahattin Demirtaş v. Turkey, application No. 14305/17, judgment, 20 November 2018. ↩

The author is in a fragile state of health because of his age. He has several health problems, including ulcers, prostate issues, muscle and joint pain, high blood pressure and memory loss. Since his arrest, he has been in solitary confinement. He is also affected by the restrictions on his access to the prison yard and the recreation yard and by the fact that he is not allowed to socialize with other prisoners. Despite his state of health, he has been denied access to healthcare and necessary basic medication.

Between July 2018 and August 2019, the author sent a total of 14 requests to the Ministry of Justice, the prison administration, the Public Prosecutor’s Office, the judge of execution and the Supreme Court. Given his health problems, the author requested to be sent to a hospital or a medical institution to obtain a medical assessment, to be released from solitary confinement and to have access to the prison yard and the recreation yard. Those requests have not been successful.

The author submits that the State Party has violated his rights under articles 6, 7, 9, 10, 14, 15 and 18–27 of the Covenant.⁹

9. The claim under article 2 of the Covenant was raised in the author’s subsequent comments. ↩

In violation of articles 6, 7 and 10 of the Covenant, the author experiences inhumane conditions in prison, including solitary confinement. This has continually damaged his health and placed his life at risk. He has been repeatedly denied access to medical care and proper medication. This is part of a deliberate policy of denying prisoners access to necessary medical care. The judiciary, in particular the prosecution and the prison administration, often deny such access in order to extract forced confessions. The authorities regularly refuse to authorize hospital transfers for sick prisoners and deny requests for medical leave for critically ill prisoners, against the advice of medical professionals. The conditions at Ödemiş prison (a T-type closed prison) are very poor. The number of inmates exceeds prison capacity. The food is insufficient and inappropriate for the author’s medical condition. There is no access to hot water when needed. The conditions adversely affect the author’s blood glucose level. Use of the prison and recreation yards is highly restricted. The author cannot participate in social or sporting activities or talk to other prisoners or detainees. He goes to the prison yard by himself. His situation is humiliating and infringes his rights. Given his age and health, the author should be released from detention.

In violation of article 9 of the Covenant, the author was arrested and detained without a legitimate basis or solid evidence that he had committed a crime. He was only brought before a judge two days after his arrest and was detained for prolonged periods. He had nothing to do with the coup d’état attempt. The reasons for his detention and the charges against him were not explained to him in a timely manner. The warrant for his arrest and detention did not include any concrete facts or findings that could justify the need for detention as opposed to a more lenient measure of judicial control. For example, there was no indication that the author posed a risk of flight or had tampered with evidence.

The author’s right to a fair trial under article 14 of the Covenant was violated in several respects. He was detained without being charged or informed of the charges against him. He lacked sufficient time to prepare his defence, prepare for interrogations and call and examine witnesses. His right to equality of arms was violated, as he lacked access to the documents needed to adequately prepare his defence. Similarly situated individuals were also systematically denied access to relevant documents during those years. In a forced confession of guilt, the author was physically and psychologically coerced into signing statements drafted by police or induced by the prosecutor or the investigating judge to accept statements collected by the police. Furthermore, the courts rejected his arguments without properly examining them.

In violation of article 15 of the Covenant, the author was convicted of invented crimes that have no basis in domestic law.

In violation of articles 19–26 of the Covenant, the author was accused of downloading and using a legal digital application from a widely used online application store.

In violation of articles 21 and 25–27 of the Covenant, the author was accused of having a bank account at Bank Asya, which was lawfully operating in the country at the time. It began doing business in 1996 in Türkiye. On 29 May 2015, it was seized by the Government and ceased operation on 22 July 2016.

As remedies, the author requests declaratory relief, sufficient safeguards to ensure non-repetition of the violations, effective and independent investigation of his allegations of ill-treatment, broader legislative or institutional changes or other initiatives (such as training for government officials to prevent future violations), adequate compensation for him and his family and a public apology.

In its observations dated 20 July 2020, the State Party refers to a submission that it previously provided in a separate case concerning the attempted coup d’état, the state of emergency and the scope and necessity of the measures taken in that context.¹⁰ In that submission regarding a separate case, the State Party makes the following assertions. In accordance with the findings of its domestic authorities, the Fetullah terrorist organization is an armed terrorist organization established by Fetullah Gülen with the aim of overthrowing the Government. The National Security Council of Turkey has established, in a number of decisions, that the Fetullah terrorist organization is a terrorist organization that constitutes a threat to national security and was responsible for the 15 July 2016 coup attempt in the State Party. A nationwide state of emergency was declared as at 21 July 2016. In a notification of derogation under article 4 of the Covenant, dated 21 July 2016, the State Party stated that, as a consequence of the state of emergency, measures taken could involve derogations from obligations under articles 2 (3), 9 and 10, 12–14, 17, 19, 21 and 22 and 25–27 of the Covenant, as permissible under article 4 of the Covenant. Claims under articles 9, 10 and 14 of the Covenant fall within the scope of the notification of derogation. Claims under those articles of the Covenant, in relation to the period of derogation, are therefore inadmissible. In accordance with article 4 of the Covenant, the decree laws issued and measures taken after the declaration of the state of emergency were strictly required by the exigencies of the situation and proportionate to the crisis faced by the authorities. The measures were only to be in force during the state of emergency and were therefore temporary.

10. See Özçelik et al. v. Turkey (CCPR/C/125/D/2980/2017), para. 4.2. ↩

On 4 August 2016, Uşak Chief Public Prosecutor’s Office issued a search, seizure and arrest warrant for the author, based on information that he was a member of the Fetullah terrorist organization and was about to flee the country from an airport in Izmir. On the same day, the author was taken into custody at the airport and was detained on 7 August 2016 under a decision of Uşak second magistrate’s office.¹¹

11. The State Party provided a translation of the author’s signed statement to the police, dated 6 August 2016, which contained statements indicating that he had been informed of his right to remain silent and that he was being charged with membership in the Fetullah terrorist organization under articles 309, 311, 312 and 314 of the Penal Code. According to the document, the author was informed that he had the right to a defence counsel and to notify relatives of his arrest. According to the document, the author’s defence counsel and the author were taken to a meeting room where their conversations could not be overheard; they subsequently stated that their meeting was sufficient. After that point, the author’s statement was taken. The document included an indication that the author had signed it with his free will and without any pressure in the presence of his lawyer. ↩

Pursuant to article 91 (4) of the Code of Criminal Procedure, the author was held in custody for 48 hours. On 6 August 2016, the Prosecutor’s Office extended the duration of his custody by 24 hours, based on the nature of the crime in question, the large number of suspects involved and the difficulty in obtaining evidence. That decision was in accordance with article 3 (1) (a) of Decree Law No. 668.

The author was charged with being a member of an armed terrorist organization based on the indictment against him. The indictment included the following findings and evidence: the author was a director and board chair at institutions affiliated with the Fetullah terrorist organization; he had deposited money in Bank Asya (a financial institution affiliated with the organization) pursuant to instructions from the organization; he had participated in activities of the organization abroad; he had held meetings of the organization; and his phone contained audio recordings of the leader of the organization.

On 31 July 2018, Uşak second assize court found that the author had served in Fetullah terrorist organization institutions; had transferred money to his zero-balance bank account in Bank Asya between 2014 and 2015, pursuant to orders of the same date from the organization; had participated in meetings abroad with persons who were under investigation for the same offences; had taught the doctrine of the leader of the organization to his students while working in a private school affiliated with the organization; had posted favourable comments about the organization on his social media accounts; had used the digital application Lib.Tango, which was affiliated with the organization, for the purpose of communicating with other members of the organization; and had messaged individuals who were being prosecuted on the same charges on Lib.Tango. The Court further found that the author had demonstrated continuity and dedication in his acts within the Fetullah terrorist organization and determined that his involvement in the hierarchical structure of the organization was evident. The Court convicted him of being a member of an armed terrorist organization on that basis.

The author’s appeal to the sixteenth Criminal Chamber of the Court of Cassation was rejected on the merits on 10 December 2019. The Court of Cassation concluded that the procedures conducted and the evidence collected had been lawful, and that the author’s allegations had been thoroughly examined by the lower court. The Court of Cassation found that the lower court decision was based on concrete and consistent evidence.

The communication is inadmissible for several reasons. First, the author did not exhaust all effective domestic remedies, since his application to the Constitutional Court remains pending. The European Court of Human Rights considers that that remedy must be exhausted.¹² Interim measures may be requested in the context of Constitutional Court applications; the author has not applied for such a measure. Mere doubts about the prospects of success of a particular remedy are not a valid reason for failing to exhaust it. Regarding the length of proceedings before the Constitutional Court, in 2018, the Court ruled on 36,451 applications and, in 2017, it ruled on 89,653 applications. During the first six months of 2019, it ruled on 14,351 applications.

12. For example, Mercan v. Turkey, application No. 56511/16, decision, 8 November 2016. ↩

In addition, the author did not raise before any of the domestic courts the substance of his claims under articles 18, 19, 21, 22 and 25 of the Covenant. Regarding article 9 of the Covenant, the author did not apply for compensation for his arrest and detention. Article 141 of the Code of Criminal Procedure permits such applications to the courts. According to the European Court of Human Rights, that remedy must be exhausted.¹³

13. A.Ş. v. Turkey, application No. 58271/10, decision, 13 September 2016. According to the State Party, article 141 of the Code of Criminal Procedure allows individuals who suffer losses during the investigation or prosecution and have been subject to any of a series of actions to claim their material and emotional losses from the State. Those actions include being subjected to an unlawful arrest, being arrested with an arrest warrant without being informed of one’s rights, not being tried within a reasonable time, being arrested without an arrest warrant etc. ↩

In addition, the communication is inadmissible because it is fictitious as a whole and constitutes an abuse of the right of submission. The author relies on political and baseless remarks and has not provided facts or information about how his rights were violated.

The communication is also inadmissible and without merit because it is insufficiently substantiated. The author provided no facts or explanations about his claims under articles 18, 22, 21, 25 and 27 of the Covenant. His various allegations concerning a lack of access to justice, forced confession and poor conditions of detention are not supported by evidence.

Regarding articles 6, 7 and 10 of the Covenant, the author was medically examined and treated accordingly at the prison infirmary 34 times between 26 August 2016 and 7 January 2020. During that period, he was also treated at Ödemiş State Hospital 15 times.¹⁴ He was given the necessary medication. At the prison, initial examinations and treatment are provided at the infirmary. Those who need further treatment are referred to hospitals. All examinations and treatments required by law are free of charge. All kinds of health services are given in full to all convicts and detainees. The author could have sought, but did not, an interim measure before the Constitutional Court to assert that his life and health were at risk because of a denial of access to medical care in prison.

14. The State Party provided copies of a referral of the author from the prison to the hospital, dated 23 May 2019; the author’s request to the prison authorities, dated 24 August 2016, for renewal of his medication; reports of the health board of the State Hospital, dated 5 July and 27 September 2019 (indicating that the author had coronary artery disease, hypertension and eye disease, was to be given medication but did not require nursing and could return to a single cell in the prison); and documents relating to the release of books to the author in the prison, phone records, correspondence and diet. ↩

Under article 16 (6) of Law No. 5275, a criminal sentence may be deferred if a convict cannot continue his life in prison because of a severe illness or disability. In accordance with that provision, the author was referred to Ödemiş State Hospital for a health assessment. On 5 July 2019, the health board of the hospital reported that the author did not require nursing, and that continuing to serve his sentence in a closed penal institution would not endanger his general health. The health board stated that there was therefore no need to defer his sentence.

Regarding the author’s assignment to a single cell in prison, such decisions are made by the management and observation board, which consists of physicians, psychologists, teachers and other experts. Having considered the author’s medical condition, the board decided that the author would stay in a single cell for security reasons.

On 23 August 2019, the author contested the latter decision before the Ödemiş Office of the Judge of Execution, requesting cancellation of his placement in a single cell. The Office referred the author to Ödemiş State Hospital for a medical assessment on whether the single-cell detention posed a risk to his health. On 27 September 2019, the hospital reported that the author did not require nursing and that his stay in a single cell did not pose a threat to his general health or a risk of harm to him. On 5 December 2019, the author objected to that decision. On 18 December 2019, Ödemiş first assize court rejected the objection and concluded that no law or procedure had been violated.

Solitary confinement does not in and of itself constitute torture. Prohibiting contact with other prisoners for security, disciplinary or protective reasons does not in and of itself amount to inhuman treatment or punishment. The author’s rights were respected. He was given the books he requested. His cell includes a television. He met with his lawyer 30 times. He exercised his phone rights in accordance with the law. His family visited him regularly. He was able to exchange letters. He can apply for education benefits.

While the author claimed that he was not given appropriate food, his diet was monitored by the institution. On 25 January 2019, the prison doctor recommended providing the author with a protein-rich diet. His health records do not indicate any health impairment resulting from deprivation of food. Pursuant to article 72 of the Law on Execution of Penalties and Security Measures (No. 5275), detainees and convicts are given nutritious and varied food and drinking water to keep them strong and healthy. Their age, health, work and religious or cultural preferences are considered. The conditions in the prison where the author was held met relevant European standards.

Regarding articles 9 and 14 of the Covenant, at the time of the author’s arrest, he was informed by law enforcement officers of his rights and of the court order for his arrest and its basis. On the same day, his statement was taken by law enforcement officers in the presence of his lawyer. On 7 August 2016, the author was informed of the charges and was questioned at Uşak Chief Prosecutor’s Office in the presence of his lawyer. On the same day, he was detained by decision of Uşak second magistrate’s office.

Under article 100 (3) (a) of the Code of Criminal Procedure, if facts give rise to a strong suspicion of the crime with which the author was charged, grounds for detention can be assumed to exist. Because the author was arrested at the airport where he was about to flee the country, and given the nature of the offences in question, it was determined that measures more lenient than detention would not suffice, owing to the risk that he would abscond.

The author had access to a lawyer of his choice.¹⁵ All of his statements were taken in the presence of his lawyers and were signed by them. His continued detention was evaluated ex officio by the respective court each month and during hearings held in accordance with article 108 of the Code of Criminal Procedure. Each objection that he raised regarding his continued detention was thoroughly reviewed by the respective court, and each objection received a decision based on the law and concrete evidence.

15. The State Party provides a copy of an official prison record, dated 14 March 2023, according to which the author met with each of his two lawyers once each, and that no limitations were imposed on his meetings with his lawyers. He was also visited by various family members numerous times. ↩

The author was able to appeal his conviction to higher courts. He was represented by several lawyers of his choice throughout the proceedings.

Under article 153 (2) of the Code of Criminal Procedure, defence counsels may be restricted from accessing investigation files concerning certain offences upon the motion of a public prosecutor and the decision of a judge. This restriction does not apply to expert opinions, statements provided by the suspected person and other records of judicial proceedings where the author was present. In accordance with article 138 of the Constitution, the courts act independently.

Regarding article 15 of the Covenant, the author was a suspected member of Fetullah terrorist organization, an armed organization that aims to overthrow the Government and establish an oppressive and totalitarian system through force, violence, threats, blackmail and other means. The fact that it is an armed terrorist organization had been established before 15 July 2016 by decision of Erzincan assize court. By a decision of the National Security Council, the Fetullah terrorist organization was included in an official list of terrorist organizations. The author was therefore charged with a criminal offence clearly specified in the law.

The State Party advances various arguments relating to articles 18, 19, 21, 22, 25 and 27 of the Covenant, and concludes that there was no violation of the author’s rights under any provisions of the Covenant.

In his comments dated 16 November 2020, with respect to article 9 of the Covenant, the author disputes that he was about to flee the country when he was taken into custody on 7 August 2016. He was unaware of the arrest warrant against him. He went to the airport with his wife to visit his daughter and grandchildren in Belgium. He testified to that effect in court. Accordingly, he should not have been suspected of attempting to flee the country.

The author also disputes the reasonableness of the decision to extend his placement in custody for an additional 24 hours, after the first 48 hours. The author and his wife were the only suspects in the case, all evidence had been collected, his house and belongings had been searched and many documents or materials had been seized. It was therefore not difficult for the authorities to obtain evidence and any such difficulty would not be a legitimate basis for extending custody. Moreover, the decisions issued to extend the author’s detention contained stereotyped and abstract language instead of concrete and legitimate reasons.

With respect to articles 18, 19, 21 and 26 of the Covenant, activities such as participating in public gatherings or public activities without promoting terrorism or violence are lawful. Downloading the Lib.Tango application is protected under articles 18–26 of the Covenant. It is used by more than 100 million people and is available in common online mobile application stores. The author used Lib.Tango to communicate with his children and grandchildren who live abroad. Having an account at Bank Asya was legal. It was one of the three banks in Türkiye with the highest liquidity. It was targeted by the Government because its shareholders included investors who were seen as having ties to the Gülen movement. At least 700,000 people were investigated for their connections to the bank. Low-asset accounts at Bank Asya are also insured by the Savings Deposit Insurance Fund, which is backed by the Government. This is a tacit admission that depositing funds at Bank Asya is not a crime. About 1.2 million people have accounts at Bank Asya; they are all considered to be potential criminals.

With respect to the effectiveness of the Constitutional Court as a domestic remedy, decisions of the Constitutional Court or other courts that displease the Government have not been applied by lower courts. The Constitutional Court has declared inadmissible all applications filed by those accused of being members of the Fetullah terrorist organization.

Regarding article 14 of the Covenant, almost every defendant whose case has a political or public dimension has been denied access to their file. The author was denied access to his own file and could not effectively challenge the charges against him or prepare his defence. The author and his lawyer could not attend the hearings on continued detention. In contrast, the prosecutor did attend those hearings.

Meetings between lawyers and their clients were not private between July 2016 and August 2018. The authorities could record their meetings and have an official present at them. The authorities could also block any exchange of documents and seize those documents. They could prohibit prisoners from meeting with lawyers of their choosing.

Concerning abuse of the right of submission, the State Party is uncomfortable with the publication of the relevant facts in an international forum. States Parties must not deliberately end the lives of their citizens. Some judges and prosecutors have, after their dismissal or arrest, been found dead in prisons under suspicious circumstances.

On 17 July 2019, a public official published a message on social media stating that the author was in his 70s, had been in a solitary-confinement cell for three years, had many illnesses and could die in prison. There is no logical basis for keeping an old and sick person in a single cell for years. The State Party did not explain the security reasons for keeping the author in a solitary cell and the measure was not taken as a disciplinary action. It is thus arbitrary and discriminatory.

Regarding article 26 of the Covenant, more than 150,000 alleged members of the Fetullah terrorist organization have been arrested and detained solely because of their social background and political stance. The author could not benefit from the rights granted to detainees in prison for a long time, especially during the period when the decree laws were in force, from August 2016 to August 2018. Members of the organization receive different treatment in detention as well. They do not enjoy the same rights to receive open visits in prison and use the telephone and library.

Regarding the State Party’s position that the Gülen movement is a terrorist organization, no other country or international institution has regarded it as such. The State Party tried to systematically destroy the Gülen movement and its members for political reasons. No soldiers, including the alleged leader of the failed attempted coup d’état, ever stated that they were involved in the Gülen movement.

In violation of articles 2, 26 and 27 of the Covenant, the author was subjected to discriminatory treatment based on his affiliation with the Gülen movement. He was accused of reading certain books, depositing his money in a certain bank and having sympathy for a non-governmental organization. He and hundreds of thousands of others were detained in similar circumstances.

In its further observations dated 6 June 2023, the State Party informs the Committee that, on 22 February 2022, the author was released from prison under probation. Between July 2020 and February 2022, he received medical care and treatments upon request, sent and received letters, participated in activities, borrowed books, received visits from relatives and lawyers and made phone calls.

Having merged two individual applications submitted by the author on 10 December 2018 and 21 February 2020, the Constitutional Court issued a related judgment on 18 March 2021. The author had invoked the rights to be informed of the charges against him; to defend himself; to be presumed innocent; to call witnesses; to benefit from the principles of legality and ne bis in idem; and to enjoy equality of arms, equality, privacy (in relation to prison conditions), a fair trial, legal aid, independent and impartial proceedings, and liberty and security (in relation to arrest, detention and prolonged detention). The Court declared most of the authors’ claims inadmissible and dismissed the remaining claims. The Court based its reasoning on insufficient substantiation, failure to exhaust remedies and failure to comply with procedural requirements.

A separate application submitted by the author on 17 January 2020 remains pending before the Constitutional Court. It concerns alleged violations of the prohibition of illtreatment, the right to an effective remedy, the prohibition of discrimination, and right to a fair trial. Thus, the author has not exhausted domestic remedies.¹⁶

16. On 15 September 2025, counsel provided a copy of the decision of the Constitutional Court (dated 16 June 2022) concerning the author’s applications of 18 October 2019 and 17 January 2020. The Court declared his claims inadmissible. They concerned ill-treatment, effective remedy, discrimination in relation to prison conditions, equality, right to a defence, access to a court in relation to his appeal against the decision to place him in a single cell in prison, and right to a reasoned decision by the Ödemiş first heavy penal court. ↩

The author was apprehended based on a reasonable suspicion that he was a member of the Fetullah terrorist organization, particularly given his attempt to travel abroad shortly after the coup d’état attempt.

The author’s detention was lawfully extended by 24 hours under emergency domestic legislation. The State Party derogated from article 9 of the Covenant during the state of emergency. The increased workload of the courts after the attempted coup d’état justified the extension of his detention. Remedies were available to the author under articles 91 (5) and 141 of the Code of Criminal Procedure but he did not pursue them. Article 91 (5) of the Code of Criminal Procedure allows a detained person to request immediate release by filing a petition with the relevant magistrate judgeship to allege a violation of unlawful apprehension or detention in custody.

Contrary to the author’s allegations, the evidence against him (see paras. 4.4 and 4.5 above) sufficed to establish his membership in an organization officially designated by the National Security Council an armed terrorist organization, in conformity with article 314 (2) of the Penal Code.

Restrictions on the author’s access to the investigation file were lawful under article 153 of the Code of Criminal Procedure. He did not challenge the restriction on his investigation file. He did not initially allege violations of confidentiality between his lawyer and himself, and no complaints were filed by him or his lawyer on that issue. The principle of equality of arms was not violated, as the author and his lawyer were informed of the evidence when the author’s statement was taken.

The author was held in a single cell, not in solitary confinement as defined by rule 44 of the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules). He retained access to meaningful human contact and medical care. The measure was administrative, not disciplinary, and was based on security concerns.

The author’s general allegations about the State Party’s political establishment and other individuals are irrelevant and inadmissible as actio popularis claims.

Judicial decisions regarding the continued detention of the author were lawful. The author was informed of those decisions, as evidenced by a court order dated 9 August 2017.¹⁷

17. The State Party provided a copy of the order of 9 August 2017, by Uşak second assize court. The court based its decision to continue detaining the author on the nature of the crime; the applicable penalty; concrete evidence of a strong suspicion of a crime; the ongoing collection of evidence; the risk of flight, absconding and pressuring victims or witnesses; and the amount of time the author had spent in detention. The court notified the author of his right to appeal the decision within seven days. ↩

The use of Lib.Tango was not criminal per se. Rather, the communications sent through it were considered evidence of organizational membership.

The author’s claims of discrimination are unsubstantiated and largely refer to other individuals. The author did not explain the applicability of article 27 of the Covenant to his situation.

On 18 October 2024, the State Party provided detailed information on a recent judgment issued by the European Court of Human Rights (Yasak v. Türkiye).¹⁸ It concerned the criminal conviction and conditions of detention of another individual for membership in the Fetullah terrorist organization. The Court found on the merits that the State Party had not violated the applicant’s rights to freedom from torture and ill-treatment, or to punishment without law (ex post facto criminalization). The Court’s findings should be taken into account by the Committee in the author’s case.

18. Application No. 17389/20, judgment, 27 August 2024. ↩

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.

Under article 5 (2) (a) of the Optional Protocol and the State Party’s reservation to that provision, the Committee is precluded from examining a matter that is being examined or has been examined under another procedure of international investigation or settlement. The Committee notes that, after submitting the communication, the author lodged an application on 1 July 2022 with the European Court of Human Rights.¹⁹ In the application, which remains pending, the author invoked the substance of articles 6, 7, 10 and 26 of the Covenant in relation to conditions of detention for the period of his imprisonment. The Committee considers that article 5 (2) (a) of the Optional Protocol precludes it from examining the author’s claims under those articles. With respect to the remainder of the claims, the Committee has ascertained that the same matter is not being and has not been examined under any other procedure of international investigation or settlement. The Committee further considers that, for the purpose of article 5 (2) (a) of the Optional Protocol, authors of communications submitted to the Committee or their counsels should notify it when subsequently submitting part or all of the same matter to another procedure of international investigation or settlement.

19. Application No. 35526/22. ↩

The Committee notes the State Party’s position that the communication is inadmissible as an abuse of the right of submission. In his comments dated November 2020, the author raised a new claim under article 2 of the Covenant. The Committee recalls that authors must raise all of their claims in their initial submission, before the State Party is asked to provide its observations on admissibility and the merits of the communication, unless the authors can demonstrate why they were unable to raise all of their claims simultaneously.²⁰ In the present case, the author has not indicated why he could not have invoked article 2 of the Covenant in his initial submission. Accordingly, the Committee considers that the claim under article 2 of the Covenant constitutes an abuse of the right of submission and is therefore inadmissible under article 3 of the Optional Protocol.

20. For example, D.Č. v. Lithuania (CCPR/C/134/D/3327/2019), para. 8.4. ↩

The Committee notes the State Party’s argument that the communication is also an abuse of the right of submission because the author failed to explain the basis of his claims. The Committee considers that the author has not sufficiently explained how his claims under articles 18, 20, 23–25 or 27 of the Covenant are related to the content of those provisions. Those claims are therefore also an abuse of the right of submission and are inadmissible under article 3 of the Optional Protocol.

The Committee recalls that in accordance with article 5 (2) (b) of the Optional Protocol, authors of communications must exercise due diligence in the pursuit of available remedies.²¹ While there is no obligation to exhaust domestic remedies if they have no prospect of being successful, mere doubts or assumptions about their effectiveness do not absolve the authors from exhausting them.²²

21. For example, F.C.S. v. Spain (CCPR/C/140/D/4063/2021), para. 6.4. ↩
22. Ibid. ↩

The author has not contested the State Party’s assertion that he did not invoke the substance of articles 18, 19, 21, 22 and 25 of the Covenant before any domestic courts. Accordingly, the Committee declares those claims inadmissible under article 5 (2) (b) of the Optional Protocol.

The Committee notes the State Party’s assertion that the author’s application to the Constitutional Court of 17 January 2020 remains pending, and that he did not seek interim measures from the Constitutional Court. The Committee observes that, on 16 June 2022, the Court rejected the application, which according to the author concerned two complaints filed by him on 18 October 2019 and 17 January 2020. The Court joined those complaints and declared the application inadmissible on the basis that it was manifestly ill-founded. Because the procedure has concluded, it does not constitute an obstacle under article 5 (2) (b) of the Optional Protocol to the Committee’s examination of the communication.

The State Party maintains that the author did not exhaust domestic remedies with respect to his claim under article 9 of the Covenant, because he did not file a petition with a magistrate judgeship under article 91 (5) of the Code of Criminal Procedure to request his immediate release from detention. The Committee notes that the State Party raised that argument in its rejoinder, not in its initial observations. The Committee considers that States Parties should raise all potential grounds of inadmissibility at the earliest possible opportunity rather than raising different grounds sequentially.²³ Moreover, the Committee notes that the author filed in 2019 an unsuccessful petition to the Supreme Court to request immediate release from detention. Taking that into account, the Committee considers that the information provided about article 91 (5) of the Code of Criminal Procedure does not allow it to conclude that the author availed himself of that remedy and, if resorted to, whether it would have been an effective remedy to allow for a prospect of the author’s release during the period of his detention and imprisonment.

23. See, generally, M.O. v. Germany (CCPR/C/140/D/3232/2018), joint opinion by Committee members Laurence R. Helfer and Imeru Tamerat Yigezu (concurring), para. 2. ↩

The Committee also notes the State Party’s argument that the author did not exhaust domestic remedies with respect to article 9 of the Covenant because he did not apply for compensation under article 141 of the Code of Criminal Procedure. That provision does not offer a prospect of terminating the deprivation of liberty. For that reason, the Committee considers that it would not have been an effective remedy when the communication was registered in 2020, as the author was deprived of his liberty from 5 August 2016 to 22 February 2022.²⁴

24. See, for example, European Court of Human Rights, Turan and others v. Turkey, applications Nos. 75805/16 and 426 others, judgment, 23 November 2021, para. 57, citing Mustafa Avcı v. Turkey, application No. 39322/12, judgment, 23 May 2017, para. 60. ↩

The Committee must next examine whether the author was required to avail himself of the procedure under article 141 of the Code of Criminal Procedure after his release from detention. Notwithstanding the jurisprudence of the European Court of Human Rights cited by the State Party,²⁵ and taking into account the fact that the author in the present case unsuccessfully challenged the lawfulness of his detention before the Supreme Court and the Constitutional Court, the Committee considers that he was not required to also request compensation under article 141 of the Code of Criminal Procedure before submitting his communication to the Committee. Accordingly, article 5 (2) (b) of the Optional Protocol does not pose an obstacle to the admissibility of his claim under article 9 of the Covenant.

25. A.Ş. v. Turkey. ↩

The Committee notes that the State Party refers in its observations to its objection to the admissibility of a previous case, Özçelik et al. v. Turkey.²⁶ In that case, the State Party invoked its derogation to article 9 of the Covenant, under article 4 of the Covenant. The Committee considers that the assessment of whether the measures taken in the context of the author’s arrest and detention were strictly required by the exigencies of the situation must be examined in the context of the merits of the communication.²⁷

26. Para. 4.2. ↩
27. Ibid., para. 8.8. ↩

The Committee takes note of the State Party’s position that the communication is inadmissible because it is insufficiently substantiated. Regarding the claims under article 14 of the Covenant, the Committee considers that the author, who had legal assistance during the domestic proceedings, has not provided sufficient details to substantiate his assertions that he was denied access to the material he needed to prepare his defence, did not have an adequate opportunity to call and examine witnesses and was coerced into signing a statement of guilt. He has also not specified which aspects of the domestic decisions he considered to be flawed, or which arguments the courts failed to consider. The Committee therefore considers that the author has not sufficiently substantiated his claims under article 14 of the Covenant. It thus declares them inadmissible under article 2 of the Optional Protocol.

The Committee notes the author’s claims under article 9 of the Covenant that he was not brought promptly before a judge. The Committee recalls its general comment No. 35 (2014) on liberty and security of person, in which it stated, with respect to article 9 (3) of the Covenant, that delays in bringing an individual who has been arrested or detained before a judge should not exceed a few days from the time of arrest, and that 48 hours is ordinarily sufficient for this purpose (para. 33). The author stated that he was detained on 5 July and brought before a judge two days later, on 7 July 2016. According to the State Party, he was arrested on 4 July and was brought before a judge on 7 July 2016. In the light of the conflicting information, the Committee considers that this aspect of the author’s claim under article 9 of the Covenant is insufficiently substantiated and therefore inadmissible under article 2 of the Optional Protocol.

Regarding the claim under article 15 of the Covenant, the Committee considers that the author did not provide sufficient information regarding the content of the decisions of the domestic courts to substantiate this claim. The Committee therefore declares it inadmissible under article 2 of the Optional Protocol.²⁸

28. Based on the material made available by the author, the full content of the court decisions concerning the author’s conviction is not clear. ↩

The Committee considers that the author has sufficiently substantiated the remaining aspects of his claim under articles 9 of the Covenant. It therefore declares them admissible and proceeds to examine them on the merits.

The Committee has considered the communication in the light of all the information made available to it by the parties, in accordance with article 5 (1) of the Optional Protocol.

Concerning 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 must be limited to the extent strictly required by the exigencies of the situation, in accordance with the principle of proportionality.²⁹ 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 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.³⁰ 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.³¹ The existence and nature of a public emergency that threatens the life of the nation may, however, be relevant to a determination of whether a particular arrest or detention is arbitrary.³²

29. Özçelik et al. v. Turkey, para. 9.2. ↩
30. Ibid.; and general comment No. 29 (2001) on derogations from provisions of the Covenant during a state of emergency, para. 4. ↩
31. General comment No. 35 (2014), para. 66; and Özçelik et al. v. Turkey, para. 9.2. ↩
32. Özçelik et al. v. Turkey, para. 9.2. ↩

The Committee notes the author’s claim under article 9 of the Covenant that his arrest and detention were not justified, and that he was not promptly informed of the charges against him. The Committee recalls its general comment No. 35 (2014), in which it stated that an arrest or detention may be authorized by domestic law and nonetheless be arbitrary within the meaning of article 9 (1) of the Covenant (para. 12). “Arrest” means any apprehension of a person that commences a deprivation of liberty, and “detention” means the deprivation of liberty that begins with the arrest and continues in time from apprehension until release.³³ The notion of “arbitrariness” must be interpreted broadly to include elements of inappropriateness, injustice, and lack of predictability and due process of law, as well as elements of reasonableness, necessity and proportionality.³⁴

33. General comment No. 35 (2014), para. 13. ↩
34. For example, Alakuş v. Türkiye (CCPR/C/135/D/3736/2020), para. 10.3. ↩

The Committee notes the State Party’s position that the author’s detention was lawful and that, when he was arrested, he was informed of his rights, the court order for his arrest and the reasons for it. According to the State Party, the author was detained because he posed a flight risk, having been arrested at the airport shortly after the attempted coup d’état, and because he was accused of serious crimes. His detention was regularly reviewed. The Committee also notes the explanation in the court decision of 9 August 2017 concerning the reasons for the author’s continued detention.

However, the Committee notes that the State Party has not provided a copy of the warrant that it states was issued on 4 August 2016 by Uşak Chief Public Prosecutor’s Office for the author’s arrest and detention. The Committee further takes note of the author’s uncontested allegation that he was detained for nearly two years before his conviction and that, during that time, he and his lawyer could not attend multiple hearings extending his pretrial detention, while the prosecutor was able to attend those hearings.³⁵ The Committee recalls that a derogation under article 4 of the Covenant cannot justify a deprivation of liberty that is unreasonable or unnecessary,³⁶ and considers that the State Party has not demonstrated that the above-mentioned circumstances were strictly required by the exigencies of the circumstances during the state of emergency in force during the relevant time. In view of the foregoing, the Committee considers that the material made available to it does not demonstrate that the author was promptly informed of the charges against him or that his arrest and detention met the criteria of reasonableness, proportionality and necessity.

35. See European Court of Human Rights, Baş v. Turkey, application No. 66448/17, judgment, 3 March 2020, paras. 215 and 216. ↩
36. Özçelik et al. v. Turkey, para. 9.4; and general comment No. 35 (2014), para. 66. ↩

Accordingly, the Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the facts before it disclose a violation by the State Party of article 9 of the Covenant.

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 to provide the author with adequate compensation. The State Party is also under an obligation to take all steps necessary to prevent similar violations from occurring in the future.

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 and subject to its jurisdiction the rights recognized in the Covenant and to provide an effective 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 to have them widely disseminated in the official language of the State Party.

My view is unlikely to differ in substance with the Committee, although it involves a terminological clarification which I believe may affect a broader interpretation of the agreement or in relation to the application of international law. The law is a structure built on legal concepts, and I believe we should examine the interpretation of certain terms in the agreement or in international law where they may affect matters of substance of rights.

The penultimate paragraph 8.2 of the Committee’s Views states that “the fundamental guarantee against arbitrary detention is non-derogable”, whereas, in my view, it should state that it is not “suspendable”; this is not a trivial matter, as it avoids confusion with a term more typical of peremptory norms or jus cogens. In legal terms, in Spanish and other languages, “derogating” from a right is not the same as “suspending” it, and this affects fundamental legal concepts in international law. And this is not only because article 9 (1) of the Covenant is not one of those provisions expressly mentioned in article 4 (2) (which do not permit any suspension), but also because the way in which the paragraph is worded can create a legal illusion, implying that something is non-derogable when, in my view, it is not so provided for either in the Covenant or in general international law.

Article 4 (1) permits a State, in certain exceptional circumstances, to “suspend” obligations undertaken by adopting measures strictly limited to the requirements of the situation, provided such measures are not incompatible with other obligations. Certain rights may “never” be “suspended” (art. 4 (2)), such as the right to life (art. 6), the prohibition of torture and inhuman or degrading treatment or punishment (art. 7), the prohibition of slavery and servitude (art. 8 (1) and (2)), the prohibition on imprisonment for failure to fulfil a contractual obligation (art. 11), the principle of legality (art. 15), the recognition of the legal personality of every human being (art. 16) and freedom of thought, conscience and religion (art. 18). The rules that can never be suspended in general international law are, in my view, non-derogable. The reference to article 18 is not a matter of jus cogens, even though it is included.

According to the Human Rights Committee in general comment No. 29 (2001) on derogations from provisions of the Covenant during a state of emergency (para. 7), the reference in article 4 (2) to article 18, which contains a limitation clause in paragraph 3, shows that the category of peremptory norms (para. 11) goes beyond the list of provisions whose application cannot be suspended under the Covenant. The Committee considers that there are other provisions that cannot be legitimately suspended, such as the requirement that every person deprived of liberty be treated humanely and with respect for their inherent dignity (based on the preamble and the relationship between articles 7 and 10), the prohibition of genocide (in relation to minorities), the prohibition of hostage-taking, abductions, and detentions not recognized under general international law, among others. In these latter cases, we encounter limitations derived from jus cogens, which are not provided for in the Covenant but which the Committee applies.

To assert that the fundamental guarantee against arbitrary detention is non-derogable might seem tautological, since if it is arbitrary, it is neither reasonable nor necessary, and therefore no restriction would be permissible. But this does not mean that the rule is non-derogable, either under general international law or under the Covenant itself, as its suspension remains possible in certain circumstances. Suspension is not the same as derogation or repeal. Norms of jus cogens are considered non-derogable and are not subject to suspension, restriction or limitation under any circumstances.

Notwithstanding doctrinal doubts regarding the precise identification of non-derogable norms, the category of jus cogens norms is applicable to the interpretation of obligations under the International Covenant on Civil and Political Rights, both because the International Court of Justice has consistently held this to be the case, and because of the practice of the Human Rights Committee itself and the doctrinal acceptance of this normative category; and, fundamentally, because it is referred to in article 53 of the Vienna Convention on the Law of Treaties, the 2001 articles of the International Law Commission on State responsibility for internationally wrongful acts, and the conclusions on peremptory norms of general international law (jus cogens) adopted at seconding reading (2022) by the International Law Commission.

This normative category is of great relevance in international human rights law and for the application of the International Covenant on Civil and Political Rights, as a large part of the norms of jus cogens relate to these: thus, norms relating to the right to life, the prohibition of slavery, torture and inhuman or degrading treatment, the obligation to respect the right of peoples to self-determination, the norm prohibiting genocide (so closely linked to article 27 of the Covenant), the principle of legality, along with other closely related norms such as the non-derogable rules of international humanitarian law (largely reflected in article 3 common to the 1949 Geneva Conventions) and the norm prohibiting aggression or apartheid, among others. Most are recognized by the Covenant itself, whilst others are of a general customary international law nature and apply equally with general scope.

When considering the admissibility of this case, the Committee notes that the author filed an application with the European Court of Human Rights in 2022, nearly three years after submitting a communication to the Committee (para. 7.2 of the Committee’s Views). Article 5 (2) (a) of the Optional Protocol preludes the Committee from considering a communication if “the same matter” is being examined under another procedure of international investigation or settlement. Several States Parties to the Optional Protocol, including Türkiye, have filed reservations extending this admissibility bar to a communication that “has already been considered” under such a procedure.

Applying article 5 (2) (a) and the reservation, the Committee compares the claims raised by the author in both proceedings. It declares inadmissible those claims which in substance allege violations of the same rights protected in both the Covenant and the European Convention on Human Rights relating to the author’s conditions of detention. However, it does not apply “the same matter” admissibility bar to the other claims alleged in the communication (para. 7.2). The Committee thus allows the author to proceed before the two complaints mechanisms simultaneously, ultimately finding a violation of article 9 of the Covenant because the author was not promptly informed of the charges against him and his arrest and detention were not reasonable, proportionate or necessary (para. 8.5).

This result may seem in tension with the principles of lis pendens and res judicata codified in article 5 (2) (a) and the reservations thereto. In fact, the result accords with the Committee’s settled jurisprudence, which interprets “the same matter” as encompassing “the same claim concerning the same individual” who raises “the same basic set of facts and allegations” before two complaints procedures, either simultaneously or consecutively.³⁷ This standard implicitly recognizes that “a single human rights violation may engage with many different rights under many different instruments”, but that no one complaints mechanism may be competent “to authoritatively evaluate all of the dimensions of [a] rightsholder’s claim”.³⁸

37. E.A. v. Türkiye (CCPR/C/142/D/3668/2019), paras. 7.2 and 7.3; see also Hermosilla Barrio v. Spain (CCPR/C/136/D/3102/2018), para. 8.2. ↩
38. Kate McKinnes, “Multiple submissions before a fractured treaty body system: lessons in advocacy from Validity International and Topház Special Home”, Journal of Human Rights Practice, vol. 17 (2025), p. 4. ↩

The Committee’s interpretation of “the same matter” in article 5 (2) (a) does not preclude individuals from engaging in certain types of “forum shopping” between international and regional human rights review mechanisms.³⁹ However, complainants who seek to split their claims between two or more mechanisms should do so with caution.

39. Laurence R. Helfer, “Forum shopping for human rights”, University of Pennsylvania Law Review, vol. 148 (1999), p. 285. ↩

First, authors and their counsels have a duty of candour to the Committee. They must disclose whether they have previously or “subsequently submit[ed] part or all of the same matter to another procedure of international investigation or settlement” (para. 7.2). Failure to do so may result in a finding of abuse of the right of submission and dismissal under article 3 of the Optional Protocol.

Authors and their counsels should also carefully explain whether and how claims presented to another complaints mechanism are similar to or different from those submitted under the Optional Protocol. The Committee has declined to apply article 5 (2) (a) or its associated reservations if the Covenant rights allegedly violated have no equivalent in a regional human rights instrument.⁴⁰ In contrast, the Committee has invoked the “same matter” inadmissibility rule when a Covenant right “provides greater protection” than the concomitant right in a regional instrument,⁴¹ and when rights guaranteed in both treaties are “sufficiently proximate” or “cannot be dissociated” from each other.⁴² Where, however, an equivalent right “differ[s] in substance and in regard of [its] implementation procedures from the rights set forth in the Covenant”, the Committee has occasionally found that “the same matter” had not been raised in the other proceeding.⁴³

40. E.g., Mahabir v. Austria (CCPR/C/82/D/944/2000), para. 8.5 (noting that “the European Court was able to examine the same matter only insofar as the substantive rights protected under the European Convention converge with those protected under the Covenant”, and refusing to apply article 5 (2) (a) to articles 10 and 26 of the Covenant, which are protected by “neither the European Convention nor its Protocols”). ↩
41. E.g., Loth v. Germany (CCPR/C/98/D/1754/2008), para. 6.4 (recalling that “the independent right to equality and non-discrimination in article 26 of the Covenant provides greater protection than the accessory right to non-discrimination contained in article 14 of the European Convention”, but finding the communication inadmissible under article 5 (2) (a) where “the same substantive issue was considered by the [European] Court”); see also Linderholm v. Croatia (CCPR/C/66/D/744/1997), para. 4.2. ↩
42. Fernández v. Spain (CCPR/C/85/D/1396/2005), para. 6.2; and S.N.K. v. Türkiye, (CCPR/C/141/D/4275/2022), para. 6.5. ↩
43. Casanovas v. France (CCPR/C/51/D/441/1990), para. 5.1. ↩

Finally, authors and their counsels should consider submitting all of their claims to the Committee, or to another procedure of international investigation or settlement, if such a procedure is competent to examine such claims. From an individual complainant’s perspective, such an approach provides an opportunity for the seized court or treaty body to comprehensively assess the rights allegedly violated and to recommend appropriate measures to remedy them. From a systemic perspective, this approach enhances the ability of the international protection system writ large to efficiently and effectively provide justice to all victims of human rights violations.

I agree with the conclusion reached by the Committee regarding the violation of article 9 of the Covenant in the present case. As stated in paragraph 8.5 of the Committee’s Views, the State Party has not established the necessity and the proportionality of the prolonged pretrial detention of the author, nor why he and his counsel were not able to attend the hearing on the extension of the detention. The Committee also rightly stressed that although article 9 is not formally listed as a non-derogable right under article 4 of the Covenant, “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” (para. 8.2).

However, the purpose of the present opinion is twofold: to clarify the authors’ procedural duties when they present an individual complaint before the Committee (para. 7.2) and to better explain why in this case, on the contrary to the Views adopted in Alakuş v. Türkiye,⁴⁴ the Committee declared inadmissible the claim under article 15 of the Covenant (para. 7.14).

44. CCPR/C/135/D/3736/2020. ↩

As far as the authors’ and their procedural duties are concerned (para. 7.2), the Committee has not much elaborated on what a former judge of the European Court of Human Rights called “the good faith that the parties must show” before international adjudication bodies.⁴⁵ When the authors are unrepresented before the Committee, this latter may apply some flexibility when assessing the consistency of the factual background and the accuracy of the claims under the Covenant. However, when the author is represented by a counsel, the Committee is allowed to expect not only a good faith but also candid and diligent procedural behaviour throughout the proceedings.

45. European Court of Human Rights, Van der Tang v. Spain, Application No. 19382/92, Judgment, 13 July 1995, para. 8. ↩

In the present case, as indicated in paragraph 7.2, the author applied to the European Court after lodging his complaint before the Committee. However, this information was not diligently notified by the author or by his counsel but was gathered by the Committee proprio motu, which had to assess whether the claims brought before the European Court were like those brought to the Committee. Based on the file, it is unclear whether the non-disclosure of this important procedural element for assessing article 5 (2) (a)⁴⁶ was deliberate or based on the lack of familiarity of the author with the United Nations treaty body proceedings. Moreover, considering the length of the procedure before the Committee, one might understand that the author aimed to get a legal determination on his claims without prolonged delay. Nevertheless, the right to lodge an individual complaint under article 1 of the Optional Protocol implies the good faith behaviour of the authors and their counsels, which means, in particular, the duty to share any important information that may have an impact on the Committee’s jurisdiction, the admissibility of the complaint or the assessment of the merits. Otherwise, this may lead to an abuse of the right of submission under article 3 of the Optional Protocol and rule 99 (c) of the rules of procedure of the Committee.⁴⁷

46. See in this regard the opinion of my colleague Laurence Helfer on the present case. ↩
47. See, for instance, J.A.N.C. v. Colombia (CCPR/C/129/D/2922/2016), para. 7.4. ↩

In respect of the claim under the criminal legality (art. 15), and keeping in mind not only Alakuş v. Türkiye but also the Grand Chamber judgment of the European Court, Yüksel Yalçinkaya v. Türkiye, that explicitly relied on Alakuş,⁴⁸ and the concluding observations of the Committee on the second periodic report of Türkiye,⁴⁹ the conclusion reached by the Committee in the paragraph 7.14 of its Views must be clarified.

48. European Court of Human Rights, Grand Chamber, Application No. 15669/20, Judgment, 26 September 2023. ↩
49. CCPR/C/TUR/CO/2, para. 15. ↩

The reason why, despite all the precedents I mentioned and the 239 individual applications brought against Türkiye in which the European Court found a violation of articles 6 (1) (right to a fair trial) and 7 (criminal legality) of the European Convention on Human Rights,⁵⁰ I rallied the Committee in this regard is because the author and his counsel did not provide the translation of the domestic judicial decisions. Therefore, contrary to Alakuş⁵¹ and the other precedents of the European Court, the Committee was unable to assess whether downloading the Lib.Tango application and sharing information through it were the main basis for the author’s conviction. The hundreds of individual cases brought before the European Court of Human Rights or the treaty bodies leaves little doubt that, in Türkiye, there has been a misuse of the counter-terrorism measures.⁵² Nevertheless, when deciding on individual complaints, the Committee must ascertain that the circumstances of the case led to a breach of the Covenant for the authors.

50. European Court of Human Rights, Demirhan and others v. Türkyie, Applications No. 1595/20 and others, Judgment, 22 July 2025, paras. 35–47. ↩
51. Para. 10.4. ↩
52. See the report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism and the third-party intervention before the European Court in the pending Yasak v. Türkiye (A/HRC/61/52, footnote 9). ↩

In this regard, the present case must not be read as a reversal of the important Alakuş precedent but as a call for authors and their counsels not only to behave in procedural good faith before the Committee but also to carefully substantiate their claims based on the Covenant.

I agree with the Committee’s conclusion that there has been a violation of article 9 of the Covenant. This separate opinion concerns the merits addressed from paragraph 8 onwards.

The Committee rightly begins its analysis by focusing on the requirement under article 4 that any derogating measure must be “to the extent strictly required by the exigencies of the situation.” In relation to article 9, general comment No. 35 (2014) characterizes, albeit with a qualifying clause, the fundamental guarantee against arbitrary detention as “non-derogable”, thereby drawing it closer to article 4 (2). However, in substance, the Committee is interpreting the requirement set out in article 4, paragraph 1. In doing so, it employs “arbitrariness” as the key concept, encompassing elements such as reasonableness, necessity and proportionality, although the relationships among these concepts are not always clearly delineated and are often used interchangeably. Since arbitrariness is expressly embedded in the text of article 9, it may appear that the substance of article 9 – once derogated from – reenters the analysis through the back door as a relevant consideration. This, however, is better understood not as a reintroduction, but as a reframing: arbitrariness operates as a controlling criterion within article 4, paragraph 1, informed by the normative content of article 9.

This assessment must be undertaken in light of the specific and evolving circumstances of the public emergency. Accordingly, the considerations relevant to arbitrariness are more tightly circumscribed than in ordinary situations, as they are anchored in the requirement of strict necessity and the particular exigencies invoked by the State Party.

The State Party’s arguments (para. 8.4) merit consideration. In particular, taking into account the capacity of the courts in the context of evidence-gathering (para. 4.4) may not, depending on the circumstances, be regarded as unreasonable. However, this cannot justify deficiencies in arrest warrants in cases such as the present one. More importantly, while the State Party itself appears to acknowledge that the measures must be temporary (para. 4.1, last sentence), the fact remains – as the Committee appropriately observes – that the author was detained for approximately two years. Such prolonged detention is difficult to reconcile with what is “strictly required by the exigencies of the situation”.

The assessment of necessity and proportionality must also consider whether less intrusive measures were available and whether the continued detention was subject to periodic and meaningful judicial review. While judicial proceedings were ongoing, information of this kind should have been more clearly demonstrated. The State Party refers to the author’s alleged failures. However, even if the Committee has found the claims under article 14 inadmissible, this does not render the underlying procedural guarantees irrelevant. Rather, the author’s rights under article 14 remain pertinent insofar as they inform the assessment of arbitrariness under article 9 and, by extension, the evaluation under article 4, paragraph 1. Given the exceptional nature of derogation, the burden lies with the State Party to convincingly demonstrate that the measures were strictly necessary and proportionate; such necessity cannot be presumed, particularly in situations involving prolonged detention.

In this connection, a comparative perspective further reinforces this conclusion: the American Convention on Human Rights explicitly recognizes procedural guarantees as nonderogable (art. 27, para. 2), underscoring the fundamental role such guarantees play even under exceptional circumstances.