Subject: United Nations WGAD Decision on the Arbitrary Detention and Illegal Transfer of 6 Turkish Nations from Kosovo to Turkey
Date: 18 November 2020
At its 88th Session held from 24–28 August 2020, the United Nations Working Group on Arbitrary Detention (WGAD) adopted Opinion No. 47/2020 (A/HRC/WGAD/2020/47), finding serious human rights violations committed by the Authorities of Kosovo and the Government of Turkey against Kahraman Demirez, Mustafa Erdem, Hasan Hüseyin Günakan, Yusuf Karabina, Osman Karakaya and Cihan Özkan. The Opinion was published by the Working Group on Arbitrary Detention in November 2020.
In its Opinion, contained in document A/HRC/WGAD/2020/47, the United Nations Working Group on Arbitrary Detention (WGAD) concluded that the arrest, detention and forceful transfer of Kahraman Demirez, Mustafa Erdem, Hasan Hüseyin Günakan, Yusuf Karabina, Osman Karakaya and Cihan Özkan, on March 29, 2018 in Kosovo, was arbitrary and in violation of international human rights norms and standards.
Regarding Kosovo, the Working Group held that the deprivation of liberty of the six Turkish nationals was in contravention of Article 2 (right to equality and non-discrimination); Article 3 (right to life, liberty and security); Article 8 (right to an effective remedy), Article 9 (freedom from arbitrary arrest and detention); Article 10 (right to a fair trial); and Article 19 (right to freedom of opinion and expression) of the Universal Declaration of Human Rights. Therefore, the deprivation of liberty of the six Turkish nationals is arbitrary and falls within categories I, II, III and V of the Working Group.
Regarding Turkey, the Working Group held that the deprivation of liberty of six Turkish nationals was in contravention of Article 2 (right to equality and non-discrimination); Article 3 (right to life, liberty and security); Article 8 (right to an effective remedy); Article 9 (freedom from arbitrary arrest and detention); Article 10 (right to a fair trial); and Article 19 (right to freedom of opinion and expression) of the Universal Declaration of Human Rights, and also Article 2 (1) and (3) [right to non-discrimination and an effective remedy]; Article 9 (right to liberty and security); Article 14 (right to a fair trial); Article 19 (right to freedom of opinion and expression); and Article 26 (right to equality before the law) of the International Covenant on Civil and Political Rights. Therefore, the deprivation of liberty of the six Turkish nationals is arbitrary and falls within categories I, II, III and V of the Working Group.
In this context the Working Group calls on (a) the Government of Turkey to release the six individuals immediately; and (b) the Government of Turkey and the Authorities of Kosovo to accord the victims an enforceable right to compensation and other reparations, in accordance with international law. In the current context of the global coronavirus disease (COVID-19) pandemic and the threat that it poses in places of detention, the Working Group calls upon the Government of Turkey to take urgent action to ensure the immediate release of the six individuals.
The Working Group on Arbitrary Detention further urges the Government of Turkey and the Authorities in Kosovo to ensure a full and independent investigation of the circumstances surrounding the arbitrary deprivation of liberty of the six individuals and to take appropriate measures against those responsible for the violation of the rights of the victims.
In accordance with paragraph 33 (a) of its methods of work, the Working Group referred the present case to the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism and requested the governments to disseminate the present opinion through all available means and as widely as possible.
During the past three years, the Working Group has noted a significant increase in the number of cases brought before it concerning arbitrary detention in Turkey. The Working Group on Arbitrary Detention expresses grave concern about the pattern established by all these cases and reminds the Government of Turkey that, under certain circumstances, widespread or systematic imprisonment or other severe deprivation of liberty in violation of the rules of international law may constitute crimes against humanity.
On 29 March 2018, around 7:00 a.m., as part of a carefully elaborated plan involving several high-level officials of Kosovo, six police teams were sent to two different cities and Mr. Demirez, Mr. Erdem, Mr. Günakan, Mr. Karabina, Mr. Karakaya and Mr. Özkan were arrested within hours of each other.
Mr. Yusuf Karabina was arrested at 8 a.m. on 29 March 2018 as he was driving to the school where he worked with some family members, along a very busy road. An officer opened the passenger’s door, grabbed a member of Mr. Karabina’s family and pulled him out of the car while another family member exited the car instinctively. As Mr. Karabina also exited the car, he was handcuffed and pushed forcibly into a police car, which immediately turned around to return to Pristina.
Ten (10) police officers in two police cars and one unmarked vehicle arrived in Gjakovë/ Đakovica at 8 a.m. of March 29, 2018 and entered the premises of Mehmet Akif College, arresting Mr. Demirez, Mr. Günakan and Mr. Özkan. The three teachers were handcuffed in the schoolyard and taken directly to the airport.
Mr. Mustafa Erdem was arrested by the Kosovo police in the parking lot of the central police station in Pristina, as he was rushing to inquire about the arrest of four teachers in his capacity as Director of the school. Mr. Erdem was pushed by several police officers into a car in which Mr. Karabina was already being kept. They were taken directly to the airport, without first being taken inside the police station.
Two police officers arrived at Mr. Karakaya’s residence in Pristina at 9.07 a.m. of March 29, 2018 asking for “Osman the emigrant” and asked him to get ready and go with them to sign some documents regarding the renewal of his residence permit. Mr. Karakaya took his documents with him and organized for a friend to meet him at the residence permit office to assist with translations. He then accompanied the two police officers and was transferred directly to the airport.
The entire operation was entirely planned and carried out by the Kosovo Intelligence Agency, which had assumed police authority and taken control of police offices, which is contrary to domestic and international legal procedure standards. Agency agents also issued orders to border control officers at the airport and it was the Agency, not the Ministry of the Interior, that obtained the airplane tickets and handled all the logistics of the transfer.
Mr. Demirez, Mr. Erdem, Mr. Günakan, Mr. Karabina, Mr. Karakaya and Mr. Özkan were handed over to the Turkish agents at Pristina International Airport. The six individuals arrived at the airport at 9.27 a.m., passed border control and boarded an airplane belonging to Birleşik İnşaat Turizm Ticaret Ve Sanayi, a company based in Turkey, which took off at 10.50 a.m. of March 29, 2018. The confusion regarding the identity of Mr. Günakan continued at the airport, as he had been mistaken for another Turkish national whose name was on the order for forcible removal. Mr. Günakan’s identity was eventually established, but the Kosovo Intelligence Agency officers decided to deport him anyway, even though there was no order for his removal.
Given the magnitude of the human rights violations perpetrated against the six individuals, the national preventive mechanism of the Ombudsperson Institution of Kosovo, was immediately notified and initiated an investigation. The establishment of a parliamentary investigative commission was also announced on 29 March 2018, but was formally established only on 28 June 2018, with a four-month mandate to draft a report on the incidents for submission to the Chief Special Prosecutor of Kosovo for eventual further investigation.
In its report, the Ombudsperson Institution of Kosovo concluded that, by expelling the six Turkish citizens, the authorities violated the following provisions of domestic and international law relevant to Kosovo: Articles 29, 31, 32 of the Constitution of Kosovo; Articles 14, 15, 16, 17 on International Legal Cooperation on Criminal Matters; Articles 8 and 10 of the Universal Declaration of Human Rights; Articles 9 and 13 of the Covenant (ICCPR); Articles 3, 5 and 6 of the European Convention on Human Rights; Article 1(1) of Protocol No. 7 to the European Convention on Human Rights; Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. In addition, the members of the Kosovo Parliamentary Investigative Commission interviewed several key players in the case and identified 31 violations of basic rights.
Universal Rights Association (URA)