CCPR/C/125/D/2980/2017
5.
The authors have claimed that they are impeded from exhausting domestic remedies,
as they cannot rely on actual legal representation and assistance given that finding defence
counsel has been extremely burdensome (para. 5.6). Moreover, the authors have noted that
they have no legal background or knowledge of the Turkish criminal justice system and
they are therefore not in a position to initiate domestic proceedings in the absence of legal
assistance (para. 5.6). While I agree with the Committee that authors of communications
must exercise due diligence in the pursuit of available remedies, such pursuit can only take
place in an environment which is conducive to such efforts. The Turkish legal system after
the coup, in which almost one third (4,424) of the judges and prosecutors have been
dismissed on allegations of conspiring with the Gülen movement and 2,386 judges and
prosecutors have been detained (para. 5.7), does not provide an environment conducive to
upholding the standards of due process.
6.
The authors have appealed their detention without success (para. 5.3). Mr. Özçelik
informed his legal counsel that he was subjected to ill-treatment and that his family had
been threatened (para. 3.4). Both authors are still in detention after almost two years,
without specific charges or a trial date. These facts should have guided the Committee to
give more weight to the second sentence of article 5 (2) (b) of the Optional Protocol, which
justifies the non-exhaustion of domestic remedies when their application is unreasonably
prolonged.
7.
What perhaps epitomizes the problems with the administration of criminal justice in
this case concerns the violation of the right to a fair trial under article 14 (3) (g) of the
Covenant. The counsel assigned to Mr. Özçelik by the Turkish Bar Association did not take
any action to defend his client’s interests and instead kept trying to persuade him to confess
to crimes he had not committed (para. 5.6). Article 14 (3) (g) of the Covenant protects an
individual from being compelled to testify against himself or to confess guilt. Instead of
protecting the rights of the accused, legal counsel purposefully undermined them.
8.
Finally, it is problematic that the Committee placed the burden of proof on the
authors, even when no documentary or other evidence was offered by the State party to
counter their claim.
16
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