Adem Yavuz ArslanOpinion

U.N decision opens doors for release of victims of decree-law in Turkey

The court decision in question recorded that the arrests of the people with the KYK decree were actually unjust.

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On the day the “Judicial Reform Package” was announced, which was ordered by Recep Tayyip Erdogan of Turkey to be prepared in order to stall the West and had no tangible results whatsoever other than the lawyers now are able to receive the green passport, a historical decision came out from the United Nations directly concerning thousands of imprisoned and victims of KHK (Kanun Hükmünde Kararkaneme, meaning decree-law). The UN Human Rights Committee ruled that the arrests aimed at the Gulen Movement are actually arbitrary and placed the human rights violations of the Erdogan regime on record one by one together with the decision no. 2980-2017 “Ozcelik and Turgay Karaman / Turkey decision”. While the Committee did not recognize the Constitutional Court as a domestic remedy, it also ruled that using ByLock or having deposits in a Bank Asya account cannot be considered as competent evidences for the arrests. Therefore, the international courts also recorded that the arrests aimed at the individuals because of these KHK decrees are indeed unjustified.

Before getting into the details and the potential effects of the decision, it is crucial to underline the following information: Although it is named a “committee”, the UN Human Rights Committee is an international court just like the European Court of Human Rights. And all the decisions taken by this committee are binding for Turkey. Thus, there is no chance for Turkey to ignore or not abide by the decision.

The grounds for the ruling of the UN Human Rights Committee is the application made concerning the abduction of Ismet Ozcelik and Turgay Karaman, two educators who are affiliated with the Movement, by the Turkish intelligence. The educators had been arrested in Malaysia back in 2017 and taken to Turkey to be arrested. The United Nations Commission on Human Rights asserted that the freedom of the Turkish educators had been violated and allowed Turkish authorities 180 days to abide by the decision. Furthermore, the UN Commission stated that the arrests were arbitrary and decided that the victims must be paid compensation. The decision of the UN Commission also included a reminder that Turkey was one of the countries signed the Universal Declaration of Human Rights and stated: “Turkey is liable to release the individuals and pay enough compensation because of the human rights violations experienced by them”.

The decision is binding for Turkey

The decision in question has the feature of being the first decision ever taken about the Gulen Movement by the United Nations Human Rights Committee. Previously, there were 9 decisions concerning the violation of rights taken by the United Nations Working Group on Arbitrary Detention. However, the bindingness of the decisions of this group is controversial. But the UN Human Rights Committee acts as an international court and it is certainly a binding institution for Turkey. In other words, an international court has taken a clear decision in favor of the Gulen Movement.

“OHAL (Olağanüstü Hal, State of Emergency) is not an excuse 

The court decision in question recorded that the arrests of the people with the KYK decree were actually unjust. The Turkish government presented OHAL as an excuse for the arrests. However, the Human Rights Committee did not accept Turkey’s plea. The same criticism took place in ECHR’s decision for Alparslan Altan/Turkey, and it has been pointed out that the arrest could not be justified because of the special conditions of the OHAL. The argument of the Erdogan regime about not obliging the provisions of the International Agreement by bringing the state of emergency forward was refuted, and it has been decided that the applicants had been arrested unfairly and illegally, and this action was not an obligatory measure to be taken under the requirements of the state of emergency. In other words, it has been determined that the arrests carried out as part of the state of emergency cannot be excluded from the international judgment by entreating.

Constitutional Court Not Recognized as Domestic Remedy

The court decision has another important extent concerning hundreds of thousands of victims in Turkey. The committee rejected Turkey’s plea of “Constitutional Court does not have any decisions about the applicants, thus the domestic remedies are not exhausted”. It has been stated in the decision that the Constitutional Court was not unbiased about the decision taken towards the Gulen Movement, and also did not provide a decision in a reasonable time. In other words, the UN Human Rights Committee did not recognize the Constitutional Court of Turkey as a domestic remedy. According to the jurists, this decision taken by the UN Committee directly concerns thousands of imprisoned and victims of the KHK decrees. This decision will also have an impact on the applications received by the ECHR about unjust and long imprisonments. As it is known, the ECHR was sending the applications back with the reason “Constitutional Court process is not exhausted”. Together with this decision of the UN Commission of Human Rights, ECHR will also be forced to make a new decision.

ByLock and Bank Asya Ruled Out as Reason of Arrest 

Another result of this decision, which concerns thousands of people, is about ByLock and Bank Asya. As it is known, hundreds of thousands of people were prosecuted due to allegedly they used ByLock application, and deposited into their Bank Asya accounts, and tens of thousands of them were arrested by the Erdogan regime. UN Human Rights Committee decided that using ByLock or depositing into a Bank Asya account cannot be reasons for an arrest, and stated “using a communication application singlehandedly cannot be cited as an evidence“. The decision no 2018/42 of the United Nations Working Group on Arbitrary Detention stated the following; “Using ByLock or participating in the religious talks organized by the Gulen Movement cannot be attributed of being a member of a terrorist organization“.  Together with a similar decision taken by the UN Human Rights Committee, it has been recorded that the arrests made with the KHK decrees and long imprisonments are completely arbitrary; they are not one of the measures required to be taken because of OHAL; using ByLock, Bank Asya, and participating in the religious talks cannot be accepted as criminal evidences.

Turkey Obliged to Release the Accused and Pay Compensation

It has been also stated in the court decision that it is a reason of violation to bring the applicants before the judge in 19-21 days. Furthermore, it has been decided that the victims should be released and paid compensation. UN Human Rights Committee allowed Turkey a total of 180 days in order to abide by the decision. According to the jurists, who evaluated the decision, this decision of the UN Human Rights Committee directly concerns hundreds of thousands of people accused with the KHK decree and tens of thousands of imprisoned. According to the expert jurists, the people, who had been arrested on the grounds of ByLock or Bank Asya, can apply for a release based on this decision taken by the UN. Furthermore, the applications made to the ECHR can refer to the same UN decision, and also it can be used for asylum requests.

Source: politurco

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