The UN Working Group on Arbitrary Detention opted that detention of Melike Göksan and Mehmet Fatih Göksan who were judges in the province of Adana (Turkey), was arbitrary and unlawful.
Melike Göksan and Mehmet Fatih Göksan are married. They were working as judge in Adana, Turkey. They were first arrested and dismissed after the 2016’s coup attempt. Melike Göksan and Mehmet Fatih Göksan were eventually sentenced to seven and nine years in prison, respectively.
The UN Working Group on Arbitrary Detention opted on their application as follows:
68. The requirement to provide reasons for the arrest of an individual also has a qualitative element in that, as noted by the Human Rights Committee, the reasons must include not only the general legal basis of the arrest, but also enough factual information to indicate the substance of the complaint, such as the wrongful act and the identity of an alleged victim. The Working Group considers that the Government has failed to prove how this requirement of article 9 (2) was met in the case of either Mr. or Ms. Göksan. The Working Group accepts that the full indictment against a person would take time to provide but the Turkish authorities should have been able to provide Mr. and Ms. Göksan, at the time of their respective arrests, with the factual specifics to indicate the substance of the crime they had allegedly committed.
69. In fact, the Working Group notes that the Government has not provided any information on the evidence against Mr. and Ms. Göksan that would justify their detention and that the only evidence against them is their alleged use of the ByLock application. In these circumstances, the Working Group considers that the Government has not established that Mr. and Ms. Göksan were promptly informed of the charges against them nor the reason for their arrest at the time of arrest, nor substantiated that their detention meets the criteria of reasonableness and necessity. The Working Group recalls that a derogation under article 4 of the Covenant cannot justify a deprivation of liberty that is unreasonable or unnecessary. The Working Group therefore concludes that the arrest and detention of Mr. and Ms. Göksan amounted to a violation of their rights under articles 3 and 9 of the Universal Declaration of Human Rights and articles 9 (1) and 9 (2) of the Covenant and thus fall under category I of the Working Group.
79. In the present case, it is clear to the Working Group that, even if Mr. and Ms. Göksan did use the ByLock application, which is an allegation denied by them, it would have been merely an exercise of their freedom of expression. To this end, the Working Group notes that freedom of opinion and freedom of expression as expressed in article 19 of the Covenant are indispensable conditions for the full development of the person; they are essential for any society and in fact they constitute the foundation stone for every free and democratic society.15 According to the Human Rights Committee, it can never become necessary to derogate from article 19 during a state of emergency.
81. The Working Group recalls that this is not the first time it is examining the arrest and prosecution of Turkish nationals on the basis of alleged use of the ByLock application as the key manifestation of an alleged criminal activity. The Working Group recalls that, in those instances, it concluded that, in the absence of a specific explanation of how the alleged mere use of the ByLock application constituted a criminal activity by the individual, their detention was arbitrary. The Working Group regrets that its views in those opinions have not been respected by the Turkish authorities and that the present case follows the same pattern.
86. The Working Group recalls that the right to have adequate time and facilities for the preparation of defence pursuant to article 14 (3) (b) must include access to documents and other evidence; this access must include all materials20 that the prosecution plans to offer in court against the accused or that are exculpatory. Exculpatory material should be understood as including not only material establishing innocence but also other evidence that could assist the defence. The Government has provided no explanation as to why the defence was denied access to materials, including Excel sheets, used by the prosecution against Mr. and Ms. Göksan. The Working Group thus finds a breach of article 14 (3) (b) of the Covenant.
87. Moreover, the Government failed to respond to the allegation that the two witnesses who were key to the case of the prosecution were not present during the trials of Mr. and Ms. Göksan, thus preventing the defence from cross-examining those witnesses. The Working Group recalls Human Rights Committee general comment No. 32 (2007) on the right to equality before courts and tribunals and to a fair trial, in paragraph 39 of which the Committee stated that article 4 (3) (e) of the Covenant guaranteed the right to have witnesses admitted that were relevant for the defence and to be given a proper opportunity to question and challenge witnesses against them at some stage of the proceedings.
88. The Government has provided no explanation as to why the two witnesses were not present during the proceedings and what efforts were made to ensure that the defence was able to cross-examine those witnesses through other means, if their presence was not possible for some legitimate reason. The Working Group therefore finds a breach of the principle of equality of arms in the proceedings and a violation of article 10 of the Universal Declaration of Human Rights and article 14 (3) (e) of the Covenant.
90. Finally, the source alleged that the detention of Mr. and Ms. Göksan falls under category V since it constitutes discrimination on the basis of political or other opinion. The Government rejects this allegation, explaining that their detention was due to their alleged membership of a terrorist organization.
91. The present case is the tenth case concerning individuals with alleged links to the Gülen movement that has come before the Working Group in the past two years. In all the cases, the Working Group found that the detention of the concerned individuals was arbitrary, and it appears that a pattern is emerging whereby those with alleged links to the Gülen movement are being targeted on the basis of their political or other opinion. Accordingly, the Working Group finds that the Government of Turkey detained Mr. and Ms. Göksan on the basis of a prohibited ground for discrimination, and that the case falls within category V.