The International League Against Arbitrary Detention urges the Governments of Malaysia and Turkey to take all the necessary actions to implement the United Nations Working Group on Arbitrary Detention Opinion No. 8/2022 concerning Alettin Duman and Tamer Tibik (Malaysia and Turkey) starting for the Government of Turkey to immediately and unconditionally release Mr. Duman and Mr. Tibik, and for the Governments of Malaysia and Turkey to accord Mr. Duman and Mr. Tibik an enforceable right to compensation and other reparations in accordance with international law including for the impact on their psychological integrity of being abducted and forcibly transferred to Turkey.
Read the full WGAD Opinion concerning Alettin Duman and Tamer Tibik (Malaysia and Turkey): Opinion No. 8/2022
DISSENTERS IN EXILE ABDUCTED IN MALAYSIA AND TRANSFERRED TO TURKEY
Mr Alettin Duman is a Turkish national, having his usual residence in Kuala Lumpur. He is a teacher, Principal of the Time International School (Kuala Lumpur) and Director of the Malaysian-Turkish Dialogue Institute, an organization focused on higher education, business relations and cultural exchanges. Mr Tamer Tibik is a Turkish national, also having his usual residence in Kuala Lumpur. He is a businessman and Secretary-General of the Hizmet-affiliated Malaysian Turkish Chamber of Commerce and Industry.
Mr. Duman and Mr. Tibik were abducted on 13 October 2016 by law enforcement agents acting on behalf of the Government of Malaysia who did not identify themselves or present an arrest warrant. Both were held in a secret location in the forest in Malaysia and forcibly removed to Turkey on 14 October. The Working Group noted that the handing over of both men at the airport to board a flight without travel documents suggests the involvement of, and a high degree of coordination among, State agents from both Governments.
SUBJECTED TO ENFORCED DISAPPEARANCE IN SECRET DETENTION FACILITY MALAYSIA
Since the whereabouts of Mr. Duman and Mr. Tibik were not disclosed to their families, friends and colleagues, who reportedly went to great lengths to locate them, the Working Group considered that Mr. Duman and Mr. Tibik were subjected to enforced disappearance between 13 and 14 October 2016. The Working Group recalled that enforced disappearance constitutes an aggravated form of arbitrary detention, which placed Mr. Duman and Mr. Tibik completely outside established legal processes, in violation of article 9 of the Universal Declaration of Human Rights.
Indeed, they were reportedly forced into vehicles by several agents, and incapacitated through the administration of an anaesthetic in Mr. Duman’s case and by plastic handcuffs and dark glasses in Mr. Tibik’s case. Moreover, both men were held at a secret location at which chains and permanent wall fixtures were reportedly used, suggesting that this location is not temporary. Therefore, the Working Group urged the Government of Malaysia to close this abandoned building immediately and put an end to its use as a secret detention facility.
INCOMMUNICADO DETENTION IN MALAYSIA AND ARRESTED WITHOUT WARRANT IN TURKEY
Moreover, the Working Group found that since they were not permitted to contact their families or lawyers, Mr. Duman and Mr. Tibik were subjected to incommunicado detention in violation of their right to challenge the lawfulness of their detention before a court. Last but not least, Mr. Duman and Mr. Tibik were arrested at their arrival in Turkey without an arrest warrant, in violation of article 9 (1), rendering their detention without any legal basis in Turkey. Therefore, the Working Group concluded that the detention of Mr. Duman and Mr. Tibik in Malaysia and Turkey falls within category I.
DETAINED FOR HAVING EXERCISED FREEDOM OF EXPRESSION THROUGH USE OF BYLOCK APP
The Working Group noted that it appeared that Mr. Duman and Mr. Tibik were detained in Malaysia and forcibly transferred at the request of the Government of Turkey for having exercised freedom of expression through their alleged use of the ByLock application.
Indeed, in April 2018, Mr. Duman was convicted of membership in a terrorist organization and sentenced to 18 years’ imprisonment, based on alleged links with the Hizmet/Gülen movement, manifested primarily through his alleged use of the ByLock application and a bank account previously held at Bank Asya. Concerning Mr. Tibik, he was convicted of membership in a terrorist organization and sentenced to 12.5 years’ imprisonment on the basis of his alleged use of ByLock, after having been accused of having worked at Hizmet-affiliated companies, encouraging votes for a certain party or candidate in elections, attempting to increase newspaper subscriptions.
In the light of the above, the Working Group found that the detention of Mr. Duman and Mr. Tibik was based on their alleged links with the Hizmet/Gülen movement, as well as ordinary activities undertaken years before their detention, such as holding a bank account, using a messaging application, and conduct relating to their employment and personal life. The Working Group took this opportunity to recall the findings of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression during his visit to Turkey in November 2016, referring to arrests based on the existence of ByLock on a person’s computer and ambiguous evidence; and that the Human Rights Committee has also indicated that the use of ByLock and holding a Bank Asya account are insufficient to justify detention.
Therefore, the Working Group considered that, even if Mr. Duman and Mr. Tibik had used ByLock, that activity would merely represent the peaceful exercise of their rights to freedom of expression and of opinion under article 19 of the Covenant, rendering their detention in Malaysia and in Turkey arbitrary and falling within category II.
SUBJECTED TO PHYSICAL AND PSYCHOLOGICAL TORTURE AND NOT AFFORDED THE RIGHT TO AN EFFECTIVE DEFENCE
The Working Group recalled that individuals should not be expelled to another country when there are substantial grounds for believing that their lives would be at risk, or that they would be in danger of being subjected to torture or ill-treatment ; the risk of arbitrary detention in the receiving State must be among the elements taken into consideration.
Moreover, the Working Group also noted that both men were subjected to physical and psychological torture and ill-treatment, including prolonged solitary confinement, in Turkey in violation of article 5 of the Universal Declaration of Human Rights, article 7 of the Covenant, and articles 2 and 16 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Hence, the Working Group considered that the ability of both men to participate in their own defence prior to and during their proceedings would have been severely affected by the alleged treatment, violating the principle of the equality of arms under article 14 (1) of the Covenant.
Moreover, the Working Group emphasized that while no trial should have taken place in Turkey, it was concerned at the reported reluctance of lawyers to provide legal services owing to fear of imprisonment in Turkey. The Working Group recalled that lawyers must be able to carry out their functions effectively and independently, free from fear of reprisal, interference, intimidation, hindrance or harassment before founding that Mr. Duman and Mr. Tibik were not afforded the right to a lawyer of their choice and were denied their rights, under article 14 (3) (b) and (d) of the Covenant, to communicate with, and defend themselves through, counsel of their own choosing.
For the above reasons, the Working Group found that the detention of Mr. Duman and Mr. Tibik in Malaysia and Turkey falls within category III.
A DISCRIMINATORY PATTERN OF PERSECUTIONS BASED ON POLITICAL OPINIONS IN TURKEY
The Working Group found that the detention of Mr. Duman and Mr. Tibik was based on their political or other opinions and noted a discriminatory pattern of targeting persons with alleged links to the Hizmet/Gülen movement.
Therefore, the Working Group found that Mr. Duman and Mr. Tibik were detained on the discriminatory basis of their alleged political or other opinion, contrary to articles 2 (1) and 26 of the Covenant, rendering their detention arbitrary and falling within category V.
CONCLUSIONS OF THE UN WORKING GROUP AGAINST ARBITRARY DETENTION
The Working Group concluded that the Government of Malaysia is responsible for its own actions in the abduction, detention and forcible transfer of Mr. Duman and Mr. Tibik, as well as the subsequent violations of their rights in Turkey. The Working Group called upon the Government of Malaysia to take all the necessary steps to secure the immediate and unconditional release of Mr. Duman and Mr. Tibik.
The Working Group also concluded that the Government of Turkey is responsible for the abduction and detention of Mr. Duman and Mr. Tibik in Malaysia, and for their forcible transfer from Malaysia to Turkey, which resulted from an agreement by the Malaysian authorities to surrender them to Turkey.
In light of the foregoing, the United Nations Working Group on Arbitrary Detention found that the detention of Mr. Duman and Mr. Tibik was arbitrary and fell under I, II, III and V because :
Regarding Malaysia, the deprivation of liberty of Alettin Duman and Tamer Tibik was in contravention of articles 2, 3, 6, 7, 8, 9, 10, 11 (1) and 19 of the Universal Declaration of Human Rights.
Regarding Turkey, the deprivation of liberty of Alettin Duman and Tamer Tibik, being in contravention of articles 2, 3, 6, 7, 8, 9, 10, 11 (1) and 19 of the Universal Declaration of Human Rights and articles 2 (1), 2 (3), 9, 14, 19 and 26 of the International Covenant on Civil and Political Rights.
The United Nations Working Group on Arbitrary Detention recommended that the Government of Malaysia and Turkey take the steps necessary to remedy the situation of Mr. Duman and Mr. Tibik without delay and bring it into conformity with the relevant international norms, starting for the Government of Turkey to immediately and unconditionally release Mr. Duman and Mr. Tibik, and for the Governments of Malaysia and Turkey to accord Mr. Duman and Mr. Tibik an enforceable right to compensation and other reparations in accordance with international law including for the impact on their psychological integrity of being abducted and forcibly transferred to Turkey.
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