Widespread or systematic imprisonment of individuals with alleged links to Gülen movement may constitute crimes against humanity: United Nations

Widespread or systematic imprisonment of individuals with alleged links to the Gülen movement may constitute crimes against humanity, said the UN Human Rights Council’s Working Group on Arbitrary Detention, in an opinion on the summary extradition of Arif Komiş, 44, Ülkü Komiş, 38, and their four children from Malaysia to Turkey in August 2019.

The working group found the arrest and detention of the Komiş family arbitrary and recommended to the Turkish and Malaysian government to (1) release Arif Komiş, who is currently in pre-trial detention; (2) pay compensation or other reparations to the Komiş family; (3) conduct investigations into the violation of the Komiş family’s rights; and (4) make the necessary legislative amendments and/or changes in practice to harmonize the laws and practices with their international obligations in line with the present opinion.

Arif Komiş was a chemistry teacher who worked at a Turkish school in Malaysia affiliated with the Gülen movement, a faith-based group inspired by Muslim cleric Fethullah Gülen, who resides in the US. Komiş held an asylum-seeker certificate from the Office of the United Nations High Commissioner for Refugees (UNHCR) valid until June 9, 2020 indicating that he should be protected from forcible return to a country where he claimed to face threats to his life or freedom, pending a final decision on his refugee status.

On the night of August 28, 2019 at approximately 11:30 p.m., some 30 police officers broke into the Komiş family residence in Kuala Lumpur. They arrested Mr. Komiş, his wife and their four minor children. Four police officers told the Komiş family that their passports had been canceled by the government of Turkey and that they should prepare in five minutes for imminent deportation to Turkey. The children are Turkish nationals, except for one whose birth the Turkish authorities in Kuala Lumpur have repeatedly refused to register and who is therefore stateless.

Immediately following their detention, the Komiş family was forcibly taken and held at the Putrajaya Immigration Office without any possibility of challenging the lawfulness of their detention before a court. Mr. Komiş was held in Malaysian custody until the following day, when he was transferred directly to the airport, from where he was forcibly and illegally removed to Turkey by a special plane. Ms. Komiş and their four minor children were also held in Malaysian custody until the following day, when they were forcibly and illegally removed to Turkey.

Following the detention of the members of the Komiş family, UNHCR and other United Nations agencies, as well as civil society organizations, were mobilized to stop their transfer. Malaysian authorities provided neither UNHCR nor other agencies with any access.

Turkish President Recep Tayyip Erdoğan has been targeting followers of the Gülen movement since the corruption investigations of December 17-25, 2013, which implicated then-Prime Minister Erdoğan, his family members and his inner circle.

Dismissing the investigations as a Gülenist coup and conspiracy against his government, Erdoğan designated the movement as a terrorist organization and began to target its members. Erdoğan intensified the crackdown on the movement following a coup attempt on July 15, 2016 that he accused Gülen of masterminding. Gülen strongly denies involvement in the abortive putsch or any terrorist activity.

On August 30, 2019 the prime minister of Malaysia confirmed that Malaysia had deported Mr. Komiş and his family, stating at a press conference that they “had proof that led to their view that he should not be in the country,” without elaborating on any evidence from the police or other law enforcement agencies. Later that day the minister of federal territories told the press that police had evidence to show that Mr. Komiş “was involved” in terrorism, without elaborating on which actions by Mr. Komiş were classified as acts of terrorism.

Turkey’s state-run Anadolu news agency described the detention and transfer of Mr. Komiş as an operation by the Turkish intelligence organization, noting that “intelligence forces arrested the so-called Malaysia chief of the Fetullahist Terrorist Organization – FETÖ [a derogatory term used by the Turkish government for Gülen movement] in an operation and brought him back to Turkey, security sources said on Friday (August 30, 2019). Amid continued efforts against FETÖ, the Turkish National Intelligence Organization caught Arif Komiş, who had allegedly held senior positions in the terror group in different countries in the past. Arif Komiş was wanted by Turkey on charges of being a member of an armed terrorist organization.”

A photo of Komiş taken immediately after being taken into custody in Turkey showed visible marks on his face, suggesting that his face was covered during the flight, either by a helmet or with some other covering. He was allegedly subjected to torture in police custody. Although the court reported that there was no torture or ill-treatment, the health report drafted as he was admitted to prison confirmed the use of torture. There is reportedly an investigation into the police officers who held him in custody.

In its response to the questions posed by the working group, the Turkish government tried to establish Komiş’s connection to the Gülen movement, saying he stayed in dormitories affiliated with the of movement when he was in high school. According to this account, ever since then he had always resided in homes and dormitories affiliated with the movement. It was also mentioned that Komiş worked as a teacher in Gülen movement-affiliated schools in Kazakhstan.

The Turkish government also claimed that Komiş deposited money in his account at Bank Asya, a bank affiliated with the Gülen movement, after the movement allegedly asked its followers to deposit money in the bank. The alleged call was intended to improve the bank’s financial well-being in the face of the government’s intimidation tactics aimed at taking over the bank, including pressuring its large corporate customers to close their accounts there.

In a decision on February 11, 2018 Turkey’s Supreme Court of Appeals ruled that depositing money in Bank Asya following the corruption investigations in December 2013 was sufficient reason to deem a person a member of the Gülen movement.

Additionally, citing the indictment, the Turkish government said Komiş accessed the ByLock application on his personal computer through his email account via an Android virtual device.

ByLock is an encrypted messaging app used on smartphones and was available on Apple’s App Store and Google Play. Turkish authorities claim ByLock was a communication tool exclusively used by members of the Gülen movement to ensure the privacy of their conversations.

The working group noted, however, that the essence of the allegations against Mr. Komiş is his supposed alliance with the Gülen movement, which was allegedly “evidenced by such regular daily activities as having a bank account and using a communication application.”

According to the working group, the Turkish Government did not present “any evidence that Mr. Komiş was indeed a member of FETÖ by dint of having held a bank account at Bank Asya or merely having lived in a dormitory affiliated with the Gülen movement, many years ago.”

In terms of the ByLock application, the working group further noted that “no explanation has been provided as to how the alleged use of this application by Mr. Komiş could be equated with a criminal act.” The working group also underlined that “even if Mr. Komiş had used the ByLock application, it would have been mere exercise of his freedom of expression, a right protected under article 19 of the [International Covenant on Civil and Political Rights].”

Noting “a pattern of targeting those with alleged links to the Gülen movement on the discriminatory basis of their political or other opinion,” the working group found that “the Government of Turkey detained Mr. Komiş on the basis of a prohibited ground for discrimination.”

The working group also said it observed a significant increase in the number of cases brought to it concerning arbitrary detention in Turkey. In a striking warning, it expressed its “concern over the pattern that all these cases follow and recalls 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.”

In terms of the responsibility of the government of Malaysia, the working group found that the arrest and detention of the Komiş family was arbitrary as their detention was not authorized by a judicial authority. The working group was particularly concerned “by the detention and expulsion of Ms. Komiş and the four minors, one of whom was not even a Turkish citizen, and finds that a breach of article 37 (b) of the Convention on the Rights of the Child also occurred.”

The working group called on the government of Malaysia to take all the necessary steps to secure the immediate and unconditional release of Mr. Komiş.

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