CCPR/C/125/D/2980/2017 Annex Individual opinion of Committee member Gentian Zyberi (partly concurring, partly dissenting) Background 1. On 15 July 2016, Turkey suffered a coup d’état, a criminal attack against the Turkish constitutional order, aimed at overthrowing the Turkish Government and the President, Recep Erdoğan. Turkey gave notice to the Secretary-General of a derogation under article 4 of the Covenant on 2 August 2016, whereby measures taken may involve derogation from obligations under the International Covenant on Civil and Political Rights, regarding articles 2 (3), 9, 10, 12, 13, 14, 17, 19, 21, 22, 25, 26 and 27 (para. 1.1 and footnote 3 of the Committee’s Views). The state of emergency in Turkey was lifted as at 19 July 2018 (para. 1.1). Concurring opinion 2. I am in full agreement with the Committee that the facts of the case reveal a violation of article 9 (1–3) of the Covenant (para. 10). Turkey has not established that the authors were promptly informed of the charges against them and the reason for their arrest, nor has it substantiated that their detention meets the criteria of reasonableness and necessity. This has led the Committee to find that the authors’ detention amounted to a violation of their rights under article 9 (1) and (2) of the Covenant (para. 9.4). Furthermore, as the Committee has found, a delay and the lack of re-examination of the necessity and reasonableness of the authors’ continued detention, especially taking into account its findings concerning the authors’ claims under article 9 (1) and (2), cannot be considered as strictly required by the exigencies of the situation. This has led the Committee to find a violation of the authors’ rights under article 9 (3) of the Covenant (para. 9.7). Dissenting opinion 3. I am unable to join the Committee’s decision to declare inadmissible under article 1 of the Optional Protocol the authors’ claim of violation of article 9 for their unlawful rendition from Malaysia to Turkey. 1 The authors have claimed that they were subject to attempted kidnapping (para. 2.2), and that no extradition hearing had been held or judicial decision taken in that regard (para. 2.4). According to the authors’ Malaysian lawyer, the Malaysian Special Branch covertly rendered them into the custody of Turkish intelligence officers on the evening of 11 May 2017, after which they were removed to Ankara without any notification to their family or legal counsel (para. 7.3). Turkey has not provided any documents pertaining to the removal of the authors from Malaysia to the authors or to the Committee. Under these circumstances, the Committee should have accepted the authors’ claim and found Turkey responsible for violating article 9 based on its complicity and active role in the authors’ unlawful removal from Malaysia. 4. I also depart from the Committee’s finding of inadmissibility of the authors’ claims under articles 7, 10 and 14, pursuant to article 5 (2) (b) of the Optional Protocol. First, from a general perspective, the overall legal environment in Turkey after the coup has been negatively affected, including that part of the legal profession administering criminal justice for individuals alleged to have been a part of or affiliated with the “Fetullahist Terrorist Organization/Parallel State Structure” (FETÖ/PDY).2 Secondly, and specifically related to the case at hand, the authors have tried to use the legal venues reasonably available to them, to no avail. 1 2 Malaysia is not a party to the Covenant and the Optional Protocol. See, inter alia, European Commission for Democracy through Law (Venice Commission), Opinion No. 865/2018 on Emergency Decree Laws Nos. 667–676 adopted following the failed coup of 15 July 2016, 12 December 2016, especially pp. 32–38. 15