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Urgent action re ilhan comak-FINAL

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BY EMAIL & BY POST & BY FAX
Quick Response Desk
Office of the High Commissioner for Human Rights
United Nations Office at Geneva
8-14 Avenue de la Paix
CH-1211 Geneva 10
Switzerland
E-mail: urgent-action@ohchr.org
Fax: 0041 22 917 9006
Our ref: SK/2014
Date: 3 July 2014
FOR THE ATTENTION OF:
 Working Group on Arbitrary Detention
 Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
 Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health
 Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression
 Independent Expert on Minority Issues
Dear Sir or Madam,
URGENT ACTION: Prolonged unlawful and arbitrary detention of Ilhan Çomak
I am writing to express our grave concern about serious allegations over the illegal and groundless imprisonment of Mr Ilhan Çomak, a Turkish national of Kurdish origin who is currently being kept in Kırıklar No.1 F Type Prison in Izmir, Turkey. We request your urgent intervention regarding the arbitrary nature of his arrest and imprisonment.
Background
Mr Comak was arrested in 1994 and he has been in prison for 20 years. He was convicted in 2000 and his conviction was upheld by the Court of Cassation in 2001. He submitted an application to the European Court of Human Rights (ECtHR) in 2001 and received judgment on his case in 2006 . This concluded that his right to fair trial by an independent and impartial court was violated by Turkey. Mr Comak’s conviction became invalid by the judgment of
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ECtHR required reopening Mr Comak’s trial. This was because his case could no longer be deemed as viable, and neither could his status as a detainee, since there was no final court case against him. Under current domestic legislation the maximum period of detention before a final verdict is five years and Mr Comak exceeded this time limit considerably. This breaches Turkey’s international obligations under ICCPR and ECHR.
Trial before the domestic courts between 1994 and 2006
Mr Ilhan Çomak currently aged 40, was a student at the Istanbul University when he was arrested by the Turkish authorities on 29th August 1994 for allegedly being in possession of a fake ID and having affiliations with the illegal organisation, the PKK.
He was charged under article 125of old Turkish Penal Code (TPC) no 7651, and on 31 October 2000, Istanbul No 1 State Security Court sentenced him to death under this article. His sentence was converted to aggravated heavy life sentence through application of article 59/1 of TPC.
On 21 May 2001, the Court of Cassation approved his sentence. This was in spite of the fact that the Court simultaneously overruled the decision for other suspects in the same case on the grounds that the decision was based on an incomplete investigation. The Court of Cassation remanded the case back to the Istanbul No 1 State Security Court.
The Istanbul No 1 State Security Court was then replaced by the Istanbul 9th Heavy Penal Court (Specially Authorized Heavy Penal Court) after the abolishment of state security courts in May 2004.
The trial thus continued before the Istanbul 9th Heavy Penal Court until 2006. On 11 May 2006, the Court discussed whether they should apply article 302 no 52372, of the new 2005 Turkish Penal Code (TPC),Ilhan Comak’s case due to the fact that Mr Comak’s lawyers claimed that the article was of huge benefit to his defendants well being. The Court rejected
1 Article 125- Anyone committing an act designed to subject the State or a part of the State to the domination of a foreign State, to diminish its independence or to impair its unity or which is designed to remove from the administration of the State a part of the territory under its control shall be liable to the death penalty.”
2 Article 302-(1) Any person who provokes authorities of a foreign country to start war or to take hostile action against Turkish Republic, or cooperates with the authorities of a foreign country to serve this purpose, is punished with imprisonment from ten years to twenty years. The punishment to be imposed is increased by one third in case of execution of provocation act through press or broadcast organs.
(2) In practice of this article, direct and indirect encouragement or support of the organizations that are formed to commit crime against the security of Turkish Republic, is considered as a hostile action.
(3) Precautions specific to legal entities are imposed in case of commission of the offenses defined in this article by corporation
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the application to use article 302 of the new TPC and decided that it was not necessary to take any additional decision on this. The domestic lawyer appealed this decision. The lawyer claimed that the execution terms and conditions of article 302 of the new TPC were preferable because it required Comak to spend less time in the cell. When the Court made assessment it only considered its previous reasoned decision and execution document. Mr Comak’s lawyer appealed this decision.
Application to the European Court of Human Rights (ECtHR)
Mr Comak applied to the ECtHR on 20 November 2001 after his sentence was upheld by the Court of Cassation on 21 May 2001. Relying on Article 6 § 1 (right to a fair trial).He alleged that his case had not been examined by an independent and impartial tribunal on account of the presence of a military judge among the members of the state security court.
On 10 October 2006, the ECtHR delivered its judgment and concluded that civilians standing trial for offences under the Criminal Code had legitimate reason to fear that a state security court which included a military judge among its members might not be independent and impartial. Accordingly, the Court held that there had been a breach of Article 6 § 1 of ECHR.
His trial before domestic courts between 2007 and 2014
On 22 January 2007, the Court of Cassation decided that it was wrong for the 9th Heavy Penal Court to make assessment by only considering the reasoned decision and execution document. It overruled the decision based on incomplete investigation and remanded the case back to the Istanbul 9th Heavy Penal Court.
On 21 February 2007, Mr Comak’s lawyer submitted a request to the Istanbul 9th Heavy Penal Court for re-trial, based on ECtHR decision. On 29 June 2009, the Court decided to separate the retrial request and the request for the application of more favourable provisions and registered them under two different case files.
On the hearing dated 18 October 2011, the applicant’s lawyer repeated his request for Mr Comak’s re-trial based on ECtHR judgment. The Court refused the decision on the grounds that article 311 of the Code of Criminal Procedure,3 did not allow retrial based on ECtHR judgment.
3 The version of Article 311 of the Code of Criminal Procedure in 2011
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Article 311/f states that a lawsuit that has been concluded with a final judgment shall be tried again in favour of the convicted individual through the way of a new trial.Under these circumstances ‘if a final judgment of the European Court of Human Rights has established that the criminal judgment is violating the Convention on Protecting the Human Rights or its Protocols. In such cases, a motion for a new trial may be filed within one year after the date of the final judgment of the European Court of Human Rights’.
However article 311/2 restricted this right by stating (2) the provisions of paragraph one, subsection (f) shall be applicable for petitions related to the final judgments of the European Court of Human Rights that have been final by the date of 4 February 2003, and to those judgments that are rendered upon individual applications submitted to the European Court of Human Rights after 4 February 2003.
The Court based its reasoning on paragraph 2 of article 311, because the ECtHR judgment regarding Mr Comak’s case became final after 2003 and his application was submitted to the ECtHR before 2003.
On 22 January 2013, the Istanbul 9th Heavy Penal Court refused to apply the provisions of article 302 of the new TPC no 5237, due to it not being more favourable to the applicant. The
1- (1) A lawsuit that has been concluded with a final judgment shall be tried again in favour of the convicted individual through the way of a new trial, under the following circumstances:
a) If any document used in the main hearing and which had an effect on the judgment, is
fraudulent;
b) If it is discovered that any witness or expert who has been heard under oath has testified or used his vote deliberately or negligently against the convicted individual, contrary to the facts, in a way that affected the judgment,
c) Except fault caused by the convicted individual personally, while performing his duty, if any of the judges who participated in the judgment had been in fault in executing his duties, in such a manner that would require a criminal prosecution or a conviction with a punishment;
d) If the judgment of the criminal court was based upon a judgment given by a civil court, and this judgment was reversed by another judgment which became final;
e) If new facts or new evidence have been produced, which. when taken in to consideration
solely or together with the evidence previously submitted, are of the nature that require the acquittal of the accused or the conviction of the accused because of a provision of the
Criminal Code that require a lighter punishment;
f) If a final judgment of the European Court of Human Rights has established that the criminal judgment is violating the Convention on Protecting the Human Rights or its Protocols. In such cases, a motion for a new trial may be filed within one year after the date of the final judgment of the European Court of Human Rights.
(2) The provisions of paragraph one, subsection (f) shall be applicable for petitions related to
the final judgments of the European Court of Human Rights that have been final by the date of 4 February 2003, and to those judgments that are rendered upon individual applications submitted to the European Court of Human Rights after 4 February 2003.
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applicant’s lawyers appealed against this decision. The appeal is still pending before the Court of Cassation.
On 30 April 2013, Mr Comak’s lawyer submitted his petition to the Istanbul 9th Heavy Penal Court for retrial after law no 6459 (fourth legislative package) came into force, on 11th April 2013. The law paved way for the re-trial of 220 case files pending before the Council of Europe’s Committee of Ministers. In all of these cases the ECtHR held that there was violation of the applicants’ right to fair trial by an independent and impartial court on account of the presence of a military judge on the bench of state security courts which tried and convicted them. The cases were being supervised by the Committee of Ministers under the group case of Gencel v Turkey (53431/99) for the implementation of the judgments which required a retrial or reopening of the case. Mr Comak’s case was one of the cases examined under the group case of Gencel v Turkey. The request for retrial or reopening his case was refused due to an exceptional time restriction provided under article 311 of Code of Criminal Procedure. A transitional provision was added to the Code of Criminal Procedure with Law No. 6459. According to the provision, it would be possible to request reopening of proceedings in cases under the supervision of the Committee of Ministers as of 15 June 2012. These requests can be made within three months after Law No. 6459 enters into force. Since the Committee was examining the applicant’ case on that date, Mr Comak was able to request the reopening of proceedings in his case.
On 20 May 2013, the Istanbul 9th Heavy Penal Court refused the request for retrial stating that Mr Comak’s sentence had become final and that there were no favourable provisions that can be applied to him under law no 6459.
Mr Comak’s lawyer appealed against this decision to the Istanbul 10th Heavy Penal Court and the Court accepted the lawyer’s request regarding retrial of Mr Comak.
Retrial started on 19 December 2013. On this hearing, the lawyers claimed that the previous trial is not valid after the ECtHR judgment and execution of Mr Comak’s sentence should be suspended. The lawyer also claimed that Mr Comak should be deemed as a detainee person as opposed to convict, thus he should be released because he had already served 18 years in prison. The Court refused to release Mr Comak and his claim to suspend the execution of his
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sentence. The Court refused the claims on the basis of the nature of the ECtHR judgment. The Court did not provide any explanation regarding the nature of ECtHR judgment.
On 24 December 2013, the lawyer appealed against this decision to the 10th Heavy Penal Court. On 16 January 2014, the Court rejected the lawyer’s appeal on the grounds that the decision of Istanbul 9th Heavy Penal Court complied with the procedure and law. The Court did not explain why the decision complied with law and procedure.
On 21 February 2014, the Turkish Parliament passed another judicial reform bill (law no 6526) which abolished Special Heavy Courts and decreased the maximum period of detention before a final verdict to five years, as well as introducing multiple amendments to anti-terror law. Following law no 6526 entered into force, Mr Comak’s case was sent to Istanbul 4th Heavy Penal Court which is ordinary heavy penal court and replaced Istanbul Specially Authorized 9th Heavy Penal Court. On 11 March 2014, Mr Comak’s lawyer applied to the Duty Heavy Penal Court of Istanbul claiming that Mr Comak should be released because the law no 6526 decreased the detention period to five years and Mr Comak exceeded this limit as he was in prison for 20 years.
On 5 May 2014, the Istanbul 4th Heavy Penal Court decided to hear Mr Comak’s case and refused the claim to suspend the execution of Mr Comak’s sentence and to release him on the basis of the reasoning of the ECtHR and Mr Comak’s sentence had become final after the approval of his sentence by the Court of Cassation.
On 11 May 2014, the lawyer appealed against this decision to the Istanbul 5th Heavy Penal Court claiming that Mr Comak should be retried and released on bail.
On 23 May 2014, the Istanbul 5th Heavy Penal Court rejected the lawyer’s appeal on the grounds that the basis for his detention was still pertinent. This was because his offense was a crime against the security of the state listed under article 100/3of the Code of Criminal Procedure4.. There was thus no need to apply judicial control measures instead of detention
4 Article 100- Grounds for arrest with a warrant
(1) If there are facts that tend to show the existence of a strong suspicion of a crime and an existing “ground for arrest”, an arrest warrant against the suspect or accused may be rendered. There shall be no arrest warrant rendered if arrest is not proportionate to the importance of the case, expected punishment or security measure.
(2) At the below mentioned instances, a “ground for arrest” may be deemed as existing:
a) If the suspect or accused had fled, eluded or if there are specific facts which justify
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considering the lower and upper limit of his sentence. Consequently the detention was proportionate to his crime, the incident and the content of the case file. The 5th Heavy Penal Court sent the case file to the Istanbul 4th Heavy Penal Code. The case is still pending before the Istanbul 4th Heavy Penal Court and next hearing is scheduled for 9th September 2014.
Unfair trial and arbitrary and unlawful detention
Mr Comak’s lawyer Aydınkaya stated that the judgement given by the ECtHR in regards to this case simply urged the Turkish courts to provide a fair trial, a basic and fundamental right as stipulated by Article 6 of the ECHR. He also stated that the judgment given to Mr Ilhan Comak was unfair, and contrary to international as well as national standards that must be applied by the Turkish state. He further stated that ‘in this instance when we consider the
the suspicion that he is going to flee.
b) If the conduct of the suspect or the accused tend to show the existence of a strong suspicion
that he is going to attempt;
1. To destroy, hide or change the evidence,
2. To put an unlawful pressure
on witnesses, the victims or other individuals.
(3) If strong grounds for suspicion are present, that the below mentioned crimes have been committed, then “the ground for arrest with a warrant” may be deemed as existing:
a) Following crimes as defined in the Turkish Penal Code dated 26.9.2004 and No. 5237:
1. Genocide and crimes against humanity (Arts. 76, 77, 78),
2. Killing with intent (Arts. 81, 82, 83),
3. Intented wounding committed by a gun (Art. 86/3-a) and intented wounding which has been aggravated by its result (Art. 87)
4. Torture (Arts. 94, 95),
5. Sexual assault (Art. 102, except for subparagraph 1),
6. Sexual abuse of children (Art. 103),
7. Theft (Arts. 141, 142), and aggravated theft (Arts. 148, 149)
8. Producing and trading with narcotic or stimulating substances (Art. 188),
9. Forming an organization in order to commit crimes (Art. 220, except for subparagraphs 2, 7 and 8),
10. Crimes against the security of the state (Arts. 302, 303, 304,
307, 308),
11. Crimes against the Constitutional order and crimes against the functioning of this system (Arts. 309, 310, 311, 312, 313, 314, 315),
b) Smuggling with guns, as defined in Act on Guns and Knifes and other Tools, dated 10.7.1953, No. 6136, (Art. 12),
c) The crime of embezzlement as defined in Act on Banks, dated 18.6.1999, No. 4389, Art. 22,
subparagraphs (3) and (4),
d) Crimes defined in Combating Smuggling Act, dated 10.7.2003,
No. 4926, and carry imprisonment as punishment,
e) Crimes defined in Act on Protection of Cultural and Natural Substances, dated 21.7.1983, No. 2863, Arts. 68 and 74,
f) Crime of intentionally start a fire in forests, as defined in Act on Forests, dated 31.8.1956, No. 6831, Art. 110, subsections 4 and 5.
(4) In cases where the committed crime is punishable with judicial fine, or with imprisonment not more than one year at the upper level, no arrest warrant shall be issued.
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ECtHR’s judgement, I could say that my client is being kept in prison unlawfully as he was not tried adequately let alone fairly’.5
In all of Mr Comak’s various cases concrete evidence was never put forward for the alleged crime in order to justify his imprisonment let alone his ‘prolonged detention’.6 This demonstrates that his imprisonment is wholly arbitrary. The Code of Criminal Procedure limits to 5 years the maximum length of time a person can be held in pre-trial detention for terrorism-related offenses, which is the offence that Mr Ilhan Çomak has been imprisoned for. In spite of this, Mr Ilhan Çomak has been in prison for the past 20 years, which is wholly unreasonable.
His trial did not meet the international standards of due process as it was again postponed. At the point of arrest, delays have become common which is a violation of the Turkish states legal obligation under Article 9(3) of the International Covenant on Civil and Political Rights (ICCPR), which mandates prompt trials.7 Lawyer Aydınkaya notes that providing a trial but not concluding it does not mean that efforts have been made to provide a judgment, it seems cosmetic. Resultantly, confidence and trust in the judiciary and the sense of justice will be harmed.8
Mr Çomak stated, ‘I do not know if I am a detainee or a prisoner; I am not sure in what capacity I am being tried. If I am supposedly, being “tried” as a prisoner, then my imprisonment has begun before a judgement has been given. If I am actually being tried and I am to be classed as a detainee, it is unacceptable for it to take up to 20 years. I should have been released and tried without imprisonment/detention. The only truth here is that I have been “tried” for the past 20 years with no end-result, and I am a prisoner.’9
On the other hand, HDP co-chairman Sebahat Tuncel posed a question in regards to long detention periods to the Ministry of Justice. She questioned whether these lengthily periods
5 Gorulmustur İlhan Çomak için AİHM kararı uygulanmadı http://gorulmustur.org/icerik/ilhan-comak-icin-aihm-karari-uygulanmadi Accessed on 10 March 2014
6 Radikal, Mapus damindan mektup 5 February 2013 http://www.radikal.com.tr/yazarlar/ali_topuz/mapus_damindan_mektup-1174147 Accessed on 11 March 2014
7 Article 9(3) ICCPR “…anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power”
8HDP Sebahat Tuncel yeniden yargılanmaya ilişkin Meclis’e önerge sundu http://www.hdp.org.tr/haberler/vekillerimizden/sebahat-tuncel-yeniden-yargilanmaya-iliskin-meclise-onerge-sundu/951 Accessed on 10 March 2014
9 Ilke Haber İlhan Çomak için AİHM kararı neden uygulanmadı? 26 February 2014http://www.ilkehaber.com/haber/ilhan-comak-icin-aihm-karari-neden-uygulanmadi-28880.htm Accessed on 10 March 2014
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were ‘due to the lack of organization within the legal system or if it is simply because the case is overlooked as being arbitrary’ due to involvement of those who are Kurdish.10 It has been consistently highlighted that the discriminatory treatment of Kurds in Turkey is quite common and that they are particularly at risk of arbitrary arrest and torture. Kurdish human rights defenders, civil society activists and those deemed to be associated with Kurdish political parties or groups who raise concerns about the Kurdish issue are often subjected to this practice.
Inhuman and degrading treatment and discrimination
It has come to our attention that Mr Ilhan Çomak suffers from anaemia, a hernia, fatigue, indigestion and a stomach ulcer, all ailments were noted in the 25th January 2013 report prepared by the Human Rights Association, Diyarbakir Branch.11This is largely a result of the poor and inadequate access to medical care given to prisoners in Turkey, despite the fact that it is a requirement. This when coupled with the fact that Mr Ilhan Çomak has been arbitrarily arrested and imprisoned raises further concerns for his state of health. Having been imprisoned for the past 20 years, he has been unable to have the freedom to enjoy both his life and liberty without a justifiable reason. This has undoubtedly caused a great deal of distress for Mr Ilhan Çomak. This is also combined with the potentially poor conditions of imprisonment, all of which constitutes inhuman and degrading treatment.
On 17th December 2013, the two sons of AKP Ministers, Barış Güler and Kaan Çağlayan, and businessman Reza Sarraf along with other individuals were arrested on charges of money laundering, abuse of their positions, bribery and embezzlement.12 Despite the gravity of this scandal, the accused were released on parole on the morning of 28th February 2014 and there are currently no suspects held within the scope of this corruption investigation. Furthermore Turkey’s former Chief of Staff retired General İlker Başbuğ, was sentenced to life imprisonment 26 months ago in the Ergenekon coup trial. He was released following the Istanbul 20th Heavy Penal Court’s recent ruling on the 7th March 2014. Taking the above into consideration, the Turkish States approach to Mr Ilhan Çomak’s case is extremely robust.
10 Gorulmustur İlhan Çomak için AİHM kararı uygulanmadı http://gorulmustur.org/icerik/ilhan-comak-icin-aihm-karari-uygulanmadi Accessed on 10 March 2014
11Hapiste Saglik, İHD Hasta Mahpuslar Raporu 2012 25 January 2013 http://hapistesaglik.com/ihd-hasta-mahpuslar-raporu-2012/ Accessed on 10 March 2014
12Aydinlikdaily Last 5 Accused in Corruption Investigation Freed 28 February 2014 http://www.aydinlikdaily.com/Last-5-Accused-in-Corruption-Investigation-Freed-2423 Accessed on 11 March 2014
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It is clear that a person should not be imprisoned if they do not pose a risk of absconding or incriminating any evidence.13 Ironically, there are hundreds of people who are being imprisoned although they have not committed a crime and/or there is no evidence sufficient enough to point to such a punishment.14
International Law and UN Conventions regarding the release of prisoners of arbitrary arrest
As a signatory to the ICCPR, Turkey is legally obligated to ensure that individuals within its territory enjoy without discrimination, the right to be presumed innocent, the right not to be arbitrarily arrested or detained, the right to pre-trial release and to be brought to trial within a reasonable time, and the right to obtain a remedy in relation to any violation of these rights. As Turkey is a member of the Council of Europe, the relevant recommendations of the Committee of Ministers on pre-trial detention and release apply. The excessive use of pre-trial detention, which is common, is a significant hindrance to Turkey’s compliance with the tenets of the ICCPR as can be seen from Mr Ilhan Çomak’s case.
Further to this, the judicial authority in charge of reviewing the arrest and detention must be independent. The Courts must give just reasons for its decisions, in particular, for imposing pre-trial detention or refusing a request for release. Detainees should have the right, contained in law, to appeal to a higher judicial or other competent authority a decision to detain or to revoke conditional release.15
Actions Requested
As a matter of urgency, I request the Special Rapporteur to intervene in this grave matter and to raise all of these issues with the Turkish Government. In particular, the Special Rapporteur is asked to communicate the concerns outlined in relation to violation of basic prisoner’s rights to a fair trial and to investigate the circumstances behind the refusal to release prisoners who face arbitrary arrest and/or pre-trial detention.
13 Article 9(3) ICCPR “pre-trial detention should be the exception and that bail should be granted, except in situations where the likelihood exists that the accused would abscond or destroy evidence, influence witnesses or flee from the jurisdiction of the State party”.
14Radikal, Bakan Cocuklari/Vatan Cocuklari 1 March 2014 http://www.radikal.com.tr/yazarlar/eyup_can/bakan_cocuklari__vatan_cocuklari-1179022 Accessed on 11 March 2014
15Lawyers rights watch Canada, Briefing to the Human Rights Committee, Oct-2 Nov http://www2.ohchr.org/english/bodies/hrc/docs/ngos/LRWC_FIDH_OMCT_Turkey_HRC106.pdf Accessed on 11 March 2014
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I urge the Turkish Government to immediately release the prisoner Mr Ilhan Çomak and other prisoners who have been arbitrarily arrested and face illegal imprisonment. I appeal to the government of Turkey to comply with all international standards and reconsider its domestic laws on lengthy imprisonment following arrest and pending a trial.
I would be most grateful if you could kindly confirm what action you will be taking and to inform us of any response received from the Turkish Authorities.
Finally, I would be grateful for your acknowledgement of receipt of this letter.
Yours faithfully,
Saniye Karakas, Lawyer
London Legal Group
11 Guilford Street
London, WC1N 1DH
Tel: +44 (0) 203 2069939
Fax: +44 (0) 2074049088
Email: cases.skarakas@gmail.com