Tevfik Soylu v. Türkiye

The author of the communication is Tevfik Soylu, a national of Türkiye born in 1967. He claims that the State Party has violated his rights under articles 9 (1)-(4); 10; 17; and 2, read in conjunction with 26 of the Covenant. The Optional Protocol entered into force for the State Party on 24 February 2007. The author is represented by counsel.

On 17 October 2017, the İstanbul Anti-Terrorism Bureau launched a criminal investigation against the author based on his alleged membership in the Fetullah terrorist organization (also known as the Gülen movement). The organization was alleged to have been involved in a coup d’état attempt in Türkiye in 2016. On 17 October 2017, the authorities searched the author’s house and took him into custody.

On 19 October 2017, while detained, the author gave an oral statement to the police. The author was not informed of the reasons for his detention or the charges against him. He was denied the right to appoint and access a lawyer who could review the decision to arrest him and the evidence against him. During the seven days of his detention by police, the author was confined with eight other persons in a cell which had only one bed. Basic hygiene conditions were not met; the author could not meet his toilet needs in a manner befitting human dignity and could not take a bath. He was held in police custody until 24 October 2017, when the İstanbul 2nd Criminal Court of Peace ordered his pre-trial detention.

During his trial, the author was moved to Silivri Prison (since renamed Marmara Penitentiaries Campus), where he was detained for approximately one year. The conditions in Silivri Prison were inadequate: the cell the author was placed in was intended to accommodate 14 persons but was generally shared by 41 persons. The author repeatedly objected to his detention, but all of his applications were rejected, always with the same boilerplate language used for other similarly situated detainees. No individualized reasons were given in the letters of rejection. The hearings held to examine the issue of the author’s detention were all held in the absence of him and his lawyer.

On 30 October 2017, the İstanbul Chief Public Prosecutor’s Office (Investigation Bureau for Combating Terrorism and Organized Crime) indicted eight individuals, including the author, on the charge of membership in an armed terrorist organization, in violation of article 314 of the Turkish Penal Code. Specifically, the author was alleged to have a) downloaded and used ByLock, an encrypted digital messaging application; b) maintained a deposit account at Bank Asya, which had been closed pursuant to a government decree after the attempted coup d’état; and c) worked for a company funded by Bank Asya. According to the author, Bank Asya had been operating within the law, and after the Government decided to close it, owning a deposit account at the bank was retroactively criminalized. The ByLock application was shut down on 19 February 2016, after the national intelligence organization reported that the application was exclusively used by members of the Gülen movement.

The indictment was accepted by the İstanbul 33rd High Criminal Court, and the eight defendants were tried together over the course of about one year. Six hearings were held in total; the judges and prosecutors involved were constantly changing and they did not have sufficient information about the case. During the trial, the author requested an expert evaluation to determine whether he had indeed downloaded and used ByLock on his phone. The 33rd High Criminal Court of İstanbul denied his request. The author claimed during the trial that he had not used ByLock; that in any case, such use would not constitute a crime; that ByLock data could not be lawfully used during the trial; that it was not a crime to deposit money in a bank or to work in a company which was authorized and supervised by the relevant state bodies; and that there was a flawed assumption that persons using the impugned bank should have known to sever their ties with it. The author argued that the indictment contravened the principles of legal security, predictability and the rule of law. However, the Criminal Court did not take into account the author’s objections.

On 15 October 2018, the 33rd High Criminal Court of İstanbul convicted the author of violating article 314 of the Turkish Penal Code and sentenced him to a prison term of 8 years, 1 month and 15 days. In its judgment, the Criminal Court found that the author had used the ByLock, which was only used by members of the Fetullah terrorist organization; that he had an account in Bank Asya; that he had deposited money into that account; that he was associated with the Fetullah terrorist organization; and that he had worked at a company that had been closed by decree. The Criminal Court stated that the crime had taken place on 17 October 2017. However, the author was taken into custody on that date; he therefore could not have committed a crime then.

The author appealed to the Regional Court of Appeal against his conviction and the extension of his detention. On 25 February 2019, the appeal was rejected.

The author filed a further appeal to the 16th Criminal Chamber of the Court of Cassation (Supreme Court 16th Penal Chamber). On 20 May 2021, the appeal was rejected on the merits.

The author did not apply to the Constitutional Court for relief. It would be an unduly prolonged process, as the Committee has itself determined.⁴

4. Özçelik et al. v. Türkiye (CCPR/C/125/D/2980/2017). ↩

In a further submission of 1 November 2021, the author informed that he had in fact submitted an application to the Constitutional Court, and that it was pending.

The author submits that the State Party has violated his rights under articles 9 (1)-(4); 10; 17; and 2, read in conjunction with 26 of the Covenant.

In violation of article 9 (1) of the Covenant, the author was arbitrarily held in pre-trial detention for approximately one year without any reliable evidence that he had committed a crime or could be a member of a terrorist organization. His statement was not taken by police until two days after his arrest, and he was then held for another five days. Under article 10 of the Decree-Law No. 684 on Making Certain Arrangements Under the State of Emergency, which applied at the relevant time, those arrested on the ground of being a member or manager of a terrorist organization could be detained for up to seven days. Notwithstanding that provision, there was no legal basis for further detaining the author. During that seven-day period of detention in police custody, the author was not brought before a judge.

The Criminal Court did not cite any concrete evidence against the author but instead based its judgment on the allegation that he had used the ByLock application. The use of an application such as ByLock is not criminalized under domestic law, which enshrines the principle of legality. ByLock may be downloaded through ordinarily mobile phone application stores. The Committee has previously stated that a decision to detain a person based on the use of ByLock was not reasonable or necessary.⁵ Without individualized reasoning, the courts rejected all of the author’s attempts to challenge his detention, citing the same generic grounds used for other detainees.

5. Özçelik et al. v. Türkiye (CCPR/C/125/D/2980/2017), para. 9.4. ↩

With respect to article 9 (2) of the Covenant, the author was not immediately informed of the reasons for his arrest. Neither he nor his lawyer were informed of the charges against him. They were not allowed to examine his case file before the authorities took his statement.

Regarding article 9 (3) of the Covenant, the author was brought before a judge seven days after he was taken into custody. After he gave a statement (two days after his apprehension), he was detained for five additional days even though there was no legal obligation requiring him to remain in custody any longer.

In violation of article 9 (4) of the Covenant, the courts examined the author’s requests for release from detention in his absence. Although the prosecutor was able to comment on the request to prolong the author’s detention during the hearings, the prosecutor’s position was not communicated to the author. That situation violated his right to equality of arms.

Regarding article 10 of the Covenant, during his detention, the author was held with approximately seven other persons in a very small cell with only one bed and inadequate hygiene conditions. During another period, he was detained with approximately 41 prisoners in a prison cell intended to accommodate up to 14 persons. He was not treated in humanely or with dignity.

Contravening the author’s right to privacy under article 17 of the Covenant, police arbitrarily searched his home without a warrant and without any concrete evidence apart from his use of the ByLock application. Under the Turkish Penal Code, houses may not be searched at night, except in a few circumstances which did not apply in the author’s case.⁶

6. Exceptional circumstances under article 118 of the Turkish Code of Criminal Procedure allow searches to be conducted at night at residences, workplaces, or other closed places, if their purpose is to capture a person who has been caught in the act of committing a crime, or if a delay would be objectionable, or if the person has escaped after being taken into custody. ↩

In violation of article 2, read in conjunction with article 26 of the Covenant, the author was arrested based on his affiliation with the Gülen movement,⁷ and domestic criminal law was applied to the author in a discriminatory and arbitrary manner. Judicial organs are supervised by the Council of Judges and Prosecutors (HSK). After the coup d’état attempt, the executive branch of the Government became involved in the work of the Council. The author’s detention, based on his presumed affiliation with the Gülen movement, resulted in a discriminatory judgment by the courts, which were under pressure from the executive branch of Government. The President, deputies and ministers openly criticized accused persons.

7. Working Group on Arbitrary Detention, Opinion No. 53/2019, para. 91. ↩

In its observations of 21 June 2022, the State Party considers that the communication is inadmissible because it is anonymous, as it was not signed by the author or his representative. The communication is also inadmissible because the author has not exhausted domestic remedies. Although he initially stated that he had not sought relief before the Constitutional Court, on 26 July 2021, well before his submission to the Committee, he later applied to the Constitutional Court. He alleged before the Court the same violations that he has invoked before the Committee. That application is currently pending. Mere doubts about the effectiveness of remedies does not absolve authors from the requirement to exhaust them.⁸ In addition, the author mischaracterized the Committee’s position in Özçelik et al. v. Türkiye. In that case, the Committee did not declare that the Constitutional Court is ineffective in its entirety. Rather, the Committee found that the State Party had failed to demonstrate that it was effective because the State party had failed to provide sufficient information.

8. For example, V.S. v. New Zealand (CCPR/C/115/D/2072/2011), para. 6.3. ↩

Furthermore, the author’s claim under article 2, read in conjunction with article 26 of the Covenant is inadmissible because it is insufficiently substantiated. The author claims that he faced discrimination because the entire judicial system in Türkiye lacks independence and impartiality. However, he did not advance concrete assertions as to how the courts or other authorities subjected him to discrimination during the criminal proceedings. He relied only on unfounded and speculative assumptions about the judicial system as a whole.

The communication is also without merit. Regarding article 9 of the Covenant, the State Party formally derogated from its obligations under that provision during the state of emergency declared on 21 July 2016, following the attempted coup d’état. In any case, the author’s arrest and detention were lawful and were based on a reasonable suspicion that he belonged to the Fethullah terrorist organization, an armed terrorist group officially recognized by the National Security Council and domestic courts. The evidence cited includes the author’s use and installation of ByLock (an application which has been deemed exclusive to the Fetullah terrorist organization members), financial translations with Bank Asya (which is affiliated with the Fetullah terrorist organization), and employment at a company which was closed under Decree Law No. 667 because of its links to the Fetullah terrorist organization. It should be emphasized that at the time the author used ByLock, it was not available for download via mobile phone application stores. After it was removed from those stores, it could only be installed on mobile phones by members of the Fetullah terrorist organization via external memory devices, memory cards, and Bluetooth. Thus, it was not possible for a person who was not a member of the Fetullah terrorist organization to install and use ByLock. For that reason, the judicial authorities determined that the installation and use of ByLock constituted reasonable suspicion for membership in the Fetullah terrorist organization.

Procedural safeguards were respected. On 17 October 2017, the author was informed of the reasons for his detention, through a form which set forth his rights.⁹ He signed that form. He was also brought before a judge within the seven-day limit provided for under Decree Law No. 667, as amended by Decree Law No. 684.¹⁰ Reviews of his detention were carried out lawfully without hearings, in accordance with the state of emergency, under Decree Laws Nos. 667 and 668. Restrictions on access to the investigation file were lawful under article 153 (2) of the Criminal Procedure Code and were lifted when the prosecution was initiated. In a similar case, the Constitutional Court found that the principle of legality had been respected by a lower court which had convicted an individual of membership in a terrorist organization on the basis of the use of ByLock.¹¹ The Constitutional Court noted that the trial court had evaluated all of the features of ByLock and its differences from common applications. The trial court had concluded that ByLock had been exclusively used by members of the Fetullah terrorist organization since its launch in early 2014. The İstanbul Criminal Magistrate’s Office arrested the author on 24 October 2017 based on evidence suggesting a strong suspicion of criminal conduct, the need to gather evidence safely and thoroughly, and the notion that judicial control measures would not suffice. In view of the foregoing, the State Party did not violate the author’s rights under article 9 of the Covenant.

9. The State Party provided a translation of the suspect/defendant rights form, which the author signed and dated 17 October 2017. According to the form, the author was taken into custody “on suspicion of a FETO/PDY offense”; his possible involvement in other offenses was also subject to investigation; he had the right to a defence counsel and a right to appeal his arrest and detention before a judge; and he understood his rights. ↩
10. According to article 6/1 (a) of Decree Law no. 667, adopted on 23 July 2016, for terrorism related offenses, the detention period after a suspect has been apprehended and taken into custody shall not last longer than 30 days. On 2 February 2017, the period of 30 days was amended to seven days under Decree Law No. 684. ↩
11. Şen v. Türkiye, application No. 2018/8903, judgment of 15 April 2021. ↩

With respect to article 10 of the Covenant, the author was treated humanely. He was held in Silivri No. 2 L Type Penal Institution. Hygiene conditions at the police detention centre were regularly assessed, and reports and cleaning logs were completed.¹² Meals were nutritious and culturally appropriate, and dietary accommodation was available. The author received psychological support, including interviews with psychosocial services. He participated in recreational activities. According to a report of 2022 by the Human Rights and Equality Institution of Türkiye, there were no complaints at the prison about insufficiency of food, and psychological services were available. Following the attempted coup d’état, detention facilities were temporarily overcrowded. However, the State Party derogated from its obligations under article 10 of the Covenant during the state of emergency.

12. The State Party provided a copy an inspection report of the police detention centre (dated 15 November 2017), and a cleaning log record of the Security and Detention Rooms Bureau of the Department of Combatting Organized Crime (for the period from 16 to 23 October 2017). ↩

Regarding article 17 of the Covenant, the search of the author’s home was authorized, documented, lawful and proportionate. It was conducted at night because of the risk that the author might escape. That condition satisfies the “peril in delay” exception under article 118 of the Criminal Procedure Code and article 4 of the Regulation on Judicial and Preventive Searches. Many suspects associated with the Fetullah terrorist organization attempted to flee after the attempted coup d’état.

With respect to article 2, read in conjunction with article 26 of the Covenant, the State Party recalls its arguments described in paragraph 4.2 above, and maintains that the prosecution of the author was based solely on objective evidence of the author’s membership in the Fetullah terrorist organization. It was not based on personal beliefs, affiliations, or discriminatory motives. Judicial independence is guaranteed in the Constitution. There were no discriminatory remarks or actions during the criminal proceedings.

In his comments of 22 August 2022, the author reiterates his arguments and maintains that the communication is sufficiently substantiated and was duly signed by his representative. In addition, “it would be an ineffective remedy for the author, who was arrested on the grounds of using the program called Bylock, to apply to the Constitutional Court.” The Constitutional Court lacks the competence to review measures imposed under Decree Laws. It has a backlog of over 81,000 cases. It has also considered that the mere use of ByLock constitutes strong suspicion of criminal activity.¹³ Indeed, in several decisions taken between 2017 and 2021, the Constitutional Court upheld convictions and detentions that had been based solely on the use of ByLock.¹⁴

13. Yavuz and others v. Türkiye, application No. 2016/22169, decision of 20 June 2017. ↩
14. For example, Ferhat Kara, application No. 2018/15231, decision of 4 June 2020, paras. 147-164; Süleyman Tokcan, application No. 2019/14228, decision of 18 January 2022, paras. 29-36. ↩

Because the State Party did not meet the requirements of article 4 of the Covenant, it may not derogate from its obligations under article 9 of the Covenant. The author’s detention was not strictly required by the exigencies of the situation; it also violated the principle of legality and proportionality. While the State Party asserts that only members of the Fetullah terrorist organization could download ByLock, an internet search indicates that ByLock has been downloaded 500,000 times from an online mobile application store which is freely accessible and has been downloaded 100,000 times from another such store. It has been downloaded by users in 34 countries.

The author’s ByLock data was obtained in May 2016 by the state intelligence agency without judicial authorization, in violation of article 6 (2) of Law No. 2937 and the Code of Criminal Procedure. It is very easy to tamper with digital data and produce false evidence. The courts relied on unverified technical reports without conducting independent forensic analysis.

Contrary to the State Party’s assertion, the author was not promptly informed of the charges against him. The form that the State Party provided is filled in the same way for everyone. The author, who was not a lawyer, did not have a chance to read and understand it. The form does not indicate that the author was informed of the reasons for his detention. No information or documentation regarding the use of ByLock was given to the author or his lawyer. In addition, the author and his lawyer could not access the case file until 9 November 2017, when the indictment was submitted. The author could not obtain a copy of the investigation file. The fact that he was brought before a judge only after seven days of detention constitutes an arbitrary and unjustified delay in violation of article 9 (3) of the Covenant.

Article 4 of the Covenant does not exempt the State Party from its obligations under article 10 of the Covenant. The author was held in overcrowded and unhygienic conditions during both pre-trial detention and imprisonment. According to the 2021 Council of Europe Annual Penal Statistics on Prison Populations, the total prison capacity in Türkiye was 233,194, while there were 297,019 persons in prison. Among the Member States of the Council of Europe, Türkiye has the highest prison population density.

Regarding article 2, in conjunction with article 26 of the Covenant, the author cites reports to support his argument that the judiciary in Türkiye lacks independence and impartiality and operates under influence from the executive branch of Government.¹⁵

15. For example, International Commission of Jurists, “The Turkish Criminal Peace Judgeships and International Law” (2018), and “Justice Suspended: Access to Justice and the State of Emergency in Turkey” (2018); Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee) of the Parliamentary Assembly of the Council of Europe, “The functioning of democratic institutions in Turkey,” 8 March 2017. ↩

On 22 August 2025, counsel informed that on 2 September 2022, the Constitutional Court had declared his application of 26 July 2021 inadmissible. The Constitutional Court considered that the author’s claim concerning right to liberty and security of the person was untimely, as he had not applied to the Court within 30 days of the final judgment of the court of first instance. In addition, the Constitutional Court found the author’s claims relating to the right to a fair trial and the principle of legality manifestly ill-founded.

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).¹⁶ It concerned the conviction and detention of another individual for membership in the Fetullah terrorist organization. In assessing the merits of the application, the Court found 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 criminalisation). The Court’s findings should be considered by the Committee in the author’s case.

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

On 22 August 2025, the author informed that he had been released from detention on an unspecified date.

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 has ascertained, as required under article 5 (2) (a) of the Optional Protocol, that the same matter is not being and has not been examined under any other procedure of international investigation or settlement.

The Committee notes the State Party’s position that the communication is inadmissible under article 3 of the Optional Protocol because it is anonymous. In assessing whether counsel is duly authorized to represent the author,¹⁷ the Committee observes that both the author and his counsel signed the complaint form. The Committee considers that those signatures suffice to demonstrate that counsel is duly authorized to be the author’s representative within the meaning of rule 99 (b) of the Committee’s rules of procedure. For that reason, the Committee considers that article 3 of the Optional Protocol does not constitute an obstacle to its examination of the communication.

17. See Adylova et al. v. Kazakhstan (CCPR/C/140/D/3044/2017-3045/2017, CCPR/C/140/D/3063/2017, CCPR/C/140/D/3072/2017), para. 7.4. ↩

The Committee notes the State Party’s position in its observations that the author had not exhausted domestic remedies because his application to the Constitutional Court remained pending. The Committee further notes the contradictory information in the author’s communication and subsequent submissions, in which he alternately stated that he had not, had, and had not filed an application to the Constitutional Court. According to the information of the State Party, the author had in fact filed his application to the Constitutional Court on 26 July 2021, that is, before submitting the present communication. The author does not explain why he provided to the Committee incorrect information about that application at different times. The Committee wishes to recall that authors who take action under the Optional Protocol must provide truthful information and come before it in good faith.¹⁸

18. For example, Pernalete López et al. v. Venezuela (CCPR/C/143/D/3283/2019), para. 10.5. ↩

In any case, the Constitutional Court declared the author’s application inadmissible in 2022. It declared the substance of the claims under article 9 of the Covenant inadmissible for untimeliness, because the author had not applied to the Court within the requisite 30-day period following the final judgment of the trial court. The remaining claims were declared inadmissible for other reasons. The Committee recalls that authors of communications must exercise due diligence in the pursuit of available remedies.¹⁹ The Committee also recalls that the effectiveness of a remedy does not depend upon the certainty of a favourable outcome for the author and that mere doubts about the effectiveness of a remedy do not absolve the author from the obligation to attempt to exhaust that remedy.²⁰ In situations where a State Party circumscribes rights of appeal with certain procedural requirements, such as time limits or other technical requirements, authors are required to comply with those requirements before they can be said to have exhausted domestic remedies.²¹

19. Alakuş v. Türkiye (CCPR/C/135/D/3736/2020), para. 9.6. ↩
20. See, for example, D.C. v. Lithuania (CCPR/C/134/D/3327/2019), para. 4.16. ↩
21. For example, V.G. v. Russian Federation (CCPR/C/139/D/2824/2016), para. 8.6; Celal v. Greece (CCPR/C/82/D/1235/2003), para. 6.4. ↩

Nonetheless, the Committee recalls its concern regarding the effectiveness of the Constitutional Court of Türkiye in cases involving pretrial detention, due to the non-implementation, by lower courts, of the Constitutional Court’s findings in two cases in which the Court had found violations.²² With reference to its previous jurisprudence,²³ the Committee notes that it would be for the State Party to establish that the remedy of an individual application to the Constitutional Court was effective, both in theory and in practice, in cases concerning the right to liberty and security. The Committee finds that, in the circumstances of the author’s case, the State Party has not shown that a timely individual complaint to challenge the author’s pretrial detention before the Constitutional Court would have been effective, in practice. For that reason, article 5 (2) (b) of the Optional Protocol does not pose an obstacle to the examination of the author’s claims under article 9 (1)-(4) of the Covenant.

22. Alakuş v. Türkiye (CCPR/C/135/D/3736/2020), para. 9.5; Özçelik et al. v. Turkey (CCPR/C/125/D/2980/2017), para. 8.5. ↩
23. Ibid.; see also European Court of Human Rights, Alpay v. Turkey, application No. 16538/17, Judgment, 20 March 2018, para. 121; Altan v. Turkey, application No. 13237/17, Judgment, 20 March 2018, para. 142 ↩

With respect to the author’s remaining claims, the Committee notes that the documentation that he provided does not suffice to establish that he raised the substance of all of his claims under the Covenant in his appeals to the Regional Court and the 16th Criminal Chamber of the Court of Cassation (Supreme Court 16th Penal Chamber). The dispositive of the courts’ judgments discuss the substance of only article 9 of the Covenant, among the claims raised in the communication, and the documentation provided does not indicate which claims were raised in the author’s applications to those courts. Accordingly, the Committee considers that the claims in relation to articles 2, 10, 17 and 26 of the Covenant are inadmissible under article 5 (2) (b) of the Optional Protocol.

The Committee notes that the State party refers in its observations to its objection to the admissibility of a previous case, Ozcelik et al. v. Turkey.²⁴ 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 communication²⁵.

24. (CCPR/C/125/D/2980/2017), para. 4.2 ↩
25. Ibid., para. 8.8. ↩

The Committee declares the author’s claims under article 9 (1)-(4) of the Covenant admissible and proceeds to examine them on the merits.

The Committee has considered the communication in the light of all the information submitted 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.²⁶ 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.²⁷ 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.²⁸ The existence and nature of a public emergency which threatens the life of the nation may, however, be relevant to a determination of whether a particular arrest or detention is arbitrary.²⁹

26. Özçelik et al. v. Turkey (CCPR/C/125/D/2980/2017), para. 9.2. ↩
27. Ibid; general comment No. 29 (2001), para. 4. ↩
28. General comment No. 35 (2014), para. 66; Özçelik et al. v. Turkey (CCPR/C/125/D/2980/2017), para. 9.2. ↩
29. Ibid. ↩

The Committee notes the author’s claims under article 9 (1) of the Covenant that he was arbitrarily held in pre-trial detention for almost one year without any reliable evidence providing a strong suspicion that he had committed a crime. The Committee recalls its general comment No. 35 (2014) on liberty and security of person, 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. 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.³⁰

30. For example, Alakuş v. Türkiye (CCPR/C/135/D/3736/2020), para. 10.3. ↩

As a preliminary matter, the Committee notes that according to the terms used by the State Party, the author was taken into custody on 17 October 2017 and was arrested on 24 October 2017. He was detained during that period. The Committee recalls that for the purpose of article 9 of the Covenant, the term “arrest” means any apprehension of a person that commences a deprivation of liberty, and the term “detention” means the deprivation of liberty that begins with the arrest and continues in time from apprehension until release.³¹ Arrest within the meaning of article 9 need not involve a formal arrest as defined under domestic law.³² Thus, article 9 of the Covenant applies from the time of the author’s apprehension on 17 October 2017.

31. General comment No. 35, para. 13. ↩
32. Ibid. ↩

The Committee notes the State Party’s assertion that on that date, following the author’s apprehension, he was immediately informed of his rights and the reasons for his arrest when he was given a form that he subsequently signed. The Committee observes that, based on the material made available to it, there does not appear to have been a warrant or court order for the author’s arrest when he was apprehended.³³ The court order for his arrest, dated 24 October 2017, concerned the author and seven other individuals (all accused of membership in the Fetullah terrorist organization) and did not include individualized reasoning.³⁴ The author was not brought before a judge until 24 October 2017. He then spent nearly one year in pretrial detention, until 15 October 2018, during which time reviews of his continued detention were conducted without hearings. While noting the State Party’s position that it was lawful under Decrees Nos. 667 and 668 to review detention in the absence of the detained individual, the Committee takes note of the author’s assertion that while the prosecutor argued in favour of continuing the author’s detention, the prosecutor’s position was not communicated to the author. The Committee considers that those combined circumstances indicate that the author did not have an effective review of his continued detention and that this was not strictly required by the exigencies of the state of emergency and Decree Laws in place during the relevant time. In particular, the Committee considers that the absence of an adversarial hearing and the non-disclosure of the prosecutor’s submissions undermined the author’s ability to challenge the lawfulness and necessity of his continued detention. The Committee recalls that a derogation under article 4 of the Covenant cannot justify a deprivation that is unreasonable or unnecessary.³⁵ In view of the foregoing, the Committee considers that the State Party has not demonstrated that the author’s arrest without a warrant and his continued detention without hearings met the criteria of reasonableness and necessity. Accordingly, the Committee finds that the circumstances of his arrest and pre-trial detention violated his rights under article 9 (1) of the Covenant. In the light of that finding, the Committee decides not to examine the author’s claim under article 9 (4) of the Covenant.

33. See Kurbanova v. Tajikistan (CCPR/C/79/D/1096/2002), para. 7.2. ↩
34. According to the translation of the indictment provided by the author, ↩
35. Özçelik et al. v. Turkey (CCPR/C/125/D/2980/2017), para. 9.4; general comment No. 35, para. 66. ↩

The Committee notes the author’s claim under article 9 (2) of the Covenant, which imposes two requirements for the benefit of persons who are arrested. First, they shall be informed, at the time of arrest, of the reasons for the arrest. Second, they shall be promptly informed of any charges against them.³⁶ The Committee notes the State Party’s assertion that following the author’s apprehension on 17 October 2017, he was immediately informed of the reasons for his detention, through a form which set forth his rights. According to that form, which the author appears to have signed on the same date, he was suspected of unspecified offences related to the Fetullah terrorist organization, could be the subject of investigation for other offences, had the right to a defence counsel, and understood his rights. The Committee recalls that the reasons for arrest must include not only the general legal basis of the arrest, but also enough factual specifics to indicate the substance of the complaint, such as the wrongful act and the identity of an alleged victim.³⁷ In the author’s case, no factual specifics were provided. Moreover, the material before the Committee does not indicate that the author was aware of the specific charge against him, i.e. membership in the Fetullah terrorist organization, before 24 October 2017. The Committee considers that a period of seven days does not meet the criterion of prompt notification of charges. In those circumstances, the Committee considers that the facts before it disclose a violation of article 9 (2) of the Covenant.

36. General comment No. 35, para. 24. ↩
37. General comment No. 35, para. 25. [See also ibid., para. 30 (legal basis of detention may be explained some hours after arrest.)] ↩

The Committee notes the author’s claim that he was only brought before a judge seven days after he was taken into custody. Article 9 (3) of the Covenant requires, in all cases and without exception, that any person arrested or detained on a criminal charge be brought promptly before a judge or other officer authorized by law to exercise judicial power.³⁸ While the exact meaning of “promptly” may vary, delays should not exceed a few days from the time of arrest.³⁹ The Committee notes the State Party’s information that the seven-day period before the author was brought before a judge complied with the domestic law that applied during the state of emergency (Decree Law No. 684). The Committee recalls that any delay longer than 48 hours must remain absolutely exceptional and be justified under the circumstances.⁴⁰ The Committee notes the State Party’s position that the extended period of seven days was not only lawful but also necessary and proportionate, considering the exigencies of the situation, the large number of suspects, a terrorist threat against the nation, and the increased workload of judicial authorities. However, the Committee notes the author’s undisputed allegation that two days after his arrest, on 19 October 2017, he was denied the possibility to appoint and access a lawyer. Under those circumstances, the Committee considers that although the seven-day period of initial detention may have been lawful at the time, it was unreasonable and thus cannot be considered as strictly required by the exigencies of the situation. Accordingly, the facts before the Committee disclose a violation of the author’s rights under article 9 (3) of the Covenant.

38. General comment No. 35, para. 32. ↩
39. Ibid, para. 33. ↩
40. Ibid, para. 33; Özçelik et al. v. Turkey (CCPR/C/125/D/2980/2017), para. 9.6. ↩

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 (1), 9 (2) and 9 (3) 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 language of the State Party.

I agree with the conclusion reached by the Committee regarding the violation of several provisions of article 9 of the Covenant in the present case. In particular, the Committee rightly stressed that although article 9 is not formally listed as a non-derogable right under article 4 of the Covenant, the State cannot misuse the counter-terrorism narrative to arbitrarily deprived individuals from their liberty. In this regard, I refer to my concurring individual opinion on the Views No. 3697/2020 adopted during the same session and to all the references to the Committee’s or the European Court’s jurisprudence against Türkiye.⁴¹

41. See Individual opinion (concurring) on CCPR/C/145/D/3697/2020. ↩

In the present case, I would like to address an important procedural point mentioned in paragraph 7.4, which relates to the contradictory information provided by the author throughout the proceeding before the Committee. On contrary to the previous case above mentioned where the author ‘omitted’ to share that he lodged an application before the European Court after he submitted his case to the Committee - which already raises serious concerns in terms of candid procedural behavior -, in the present case, the author sent ‘contradictory’ and ‘incorrect’ information on an important procedural question related to the exhaustion of domestic remedies. In this regard, the Committee went a bit further than in its Views in the communication No. 3697/2020 and recalled the “good faith” principle applicable to the authors of an individual communication.

However, the Committee does not clearly draw legal consequences of this lack of procedural good faith from the author, as it did in previous cases, including by rejecting the complaint for abuse of right under article 3 of the Optional Protocol.⁴² Indeed, it is not the first time the Committee is confronted to this type of procedural behavior by the authors and the rejection of an individual complaint for abuse of right should not be taken lightly by the Committee.⁴³ Nevertheless, the parties have procedural duties. For instance, as construed by the Committee in its General comment No. 33, article 1 of the Optional Protocol imposes obligations on States “not hinder access to the Committee and [they] must prevent any retaliatory measures against any person who has submitted a communication to the Committee”.⁴⁴ Moreover, article 4 of the Optional Protocol obliges the State party to “respond” to the Committee, and therefore to cooperate to the clarification of the facts and the establishment of the legal truth.

42. CCPR/C/129/D/2922/2016, para. 7.4. ↩
43. On the strict and narrow interpretation of the procedural abuse of right by regional and universal human rights bodies, see L. Hennebel and H. Tigroudja, International Human Rights Law. A Treatise, Cambridge University Press : CUP, 2025, pp. 358-361. ↩
44. CCPR/C/GC/33, para. 4. ↩

While the litigation before the Committee is unbalanced - the position of an author vis-à-vis the access to proof cannot be compared to the power of the State party -, the author is not exempted from duties, and in particular, the duty to act with diligence, candidly and to bring to the Committee reliable, credible and correct information. It is not only a matter of respect for the adjudication body. It is also instrumental for the manifestation of the truth and the quality of the justice as this outcome of the adjudication process. Without actors - either the States or the authors – using the international mechanism in an appropriate way, the Committee (or any other adjudication body) cannot work properly.

In the present case, the Committee decided to overcome this bad procedural behavior of the author and took into consideration that eventually, the domestic tribunals did not offer an effective remedy to the author. Considering the gravity of the violations of several aspects of article 9, the solution reached by the Committee may be understood in light of the circumstances of the case. However, in order to discourage and prevent the repetition of such procedural shortcomings, it will be important for the Committee to adopt a clear stance on the definition of abuse of right under article 3 of the Optional Protocol, and its legal consequences on the admissibility and the merits of the complaint.