In the applications by Mustafa Onder, Ferhat Erdoğan, Elmas Ayden who are Turkish citizens, have been subjected to preventive detention by Morocco upon Turkey’s extradition request, the UN Committee Against Torture concluded the complainants’ extradition to Turkey would constitute a breach of article 3 of the Convention.
The Committee also decided that Morrocco shall
a) Ensure that similar violations do not occur in the future,
b) Refrain from extraditing the complainant to Turkey and examine the request for his extradition to Turkey in the light of its obligations under the Convention, which include the obligation to carry out an assessment of the risk of torture and ill-treatment in the event of extradition, and under the present decision, especially since the complainant filed a request for international protection with the Office of the High Commissioner for Refugees in Rabat on 23 May 2017,
c) Releases the complainants from the preventive detention.
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The UN Committee decided that there was a substantial risk of torture for those who were thought to be members, or actually were members, of the Gulen movement, if they are extradited to Turkey. Some excerpts from the decisions are as follows:
7.6 The Committee .. notes that the successive extensions of the state of emergency in Turkey have led to serious human rights violations against hundreds of thousands of people, including arbitrary deprivation of the right to work and of freedom of movement, torture and ill- treatment, arbitrary detention and violations of the rights to free association and expression. In this regard, the Committee recalls its concluding observations on the fourth periodic report of Turkey (CAT/C/TUR/CO/4), in 2016, in which it noted with concern, in paragraph 9, a significant disparity between the high number of allegations of torture reported by non-governmental organizations and the data provided by the State party in its fourth periodic report (see CAT/C/TUR/4, paras. 273–276 and annexes 1 and 2), suggesting that not all allegations of torture had been investigated during the reporting period. In the same concluding observations, the Committee highlighted, in paragraph 19, its concern about recent amendments to the Code of Criminal Procedure, which gave the police greater powers to detain individuals without judicial oversight during police custody. In paragraph 33, the Committee expressed regret about the lack of complete information on suicides and other sudden deaths in detention facilities during the period under review.
7.7 The Committee notes that, according to the complainant, the state of emergency established in Turkey on 20 July 2016 has increased the risk of persons accused of belonging to a terrorist group being subjected to torture while in detention. The Committee also recognizes that the aforementioned concluding observations predated the start of the state of emergency. However, it observes that, according to reports on the human rights situation in Turkey and the prevention of torture published since the imposition of the state of emergency, the concerns raised by the Committee remain pertinent.
7.8 In the present case, the Committee notes that the complainant claims to have been persecuted on account of his political activities, in that he was believed to be a member of the Hizmet movement deemed responsible for the attempted coup d’état in July 2016. The Committee notes that, according to the report issued in 2018, the Office of the United Nations High Commissioner for Human Rights had access to reliable information indicating that torture and ill-treatment were used during pretrial detention as the Turkish authorities responded to the attempted coup d’état. In the same report, the Office claims to have documented the use of various forms of torture and ill-treatment in custody, including severe beatings, threats of sexual assault and actual sexual assault, electric shocks and simulated drownings. The aim of these acts of torture was generally to extract confessions or to elicit denunciations of other persons as part of the investigations into events surrounding the attempted coup d’état. In his report on his mission to Turkey, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment notes that the use of torture was widespread in the aftermath of the coup. The Special Rapporteur also notes that “the low number of investigations and prosecutions initiated in response to allegations of torture or ill-treatment seemed grossly disproportionate to the alleged frequency of the violations, indicating insufficient determination on the part of the responsible authorities to take such cases forward”.
7.9 With regard to the direct impact of the state of emergency imposed on 20 July 2016, the Committee takes note of the concern raised by the Office of the United Nations High Commissioner for Human Rights about the adverse effects of the resulting measures on safeguards against torture and ill-treatment. In particular, the Office refers to the restrictions that may be imposed on contacts between detainees and their lawyers, the increase in the maximum permitted duration of police custody, the closure of certain independent mechanisms for the prevention of torture and the excessive use of pretrial detention. After successive extensions decreed by the Turkish authorities, the state of emergency officially ended on 19 July 2018. In a letter dated 8 August 2018, the Turkish authorities informed the Council of Europe that the state of emergency had terminated on 19 July 2018 at the end of the deadline set by Decision No. 1182 and that, accordingly, the Government of the Republic of Turkey had decided to withdraw the notice of derogation from the European Convention on Human Rights. However, a series of legislative measures have been adopted that extend the application of the restrictive measures introduced during the state of emergency, including the possibility of prolonging police custody for up to 12 days.
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