Immediately following the attempted coup in July 2016, Turkey declared a state of emergency (SOE), which has been extended for the period between October 19, 2016 and January 19, 2017. Turkish President Recep Tayyip Erdoğan has signaled the likelihood of further extensions.[1] After having declared the SOE, the Council of Ministers issued several emergency decrees with the force of law (Kanun Hükmünde Kararname), granting unlimited discretionary powers to the executive and administrative authorities. Immediately after declaring an SOE Turkey also notified the Council of Europe and the United Nations of its intentions to derogate from certain obligations under the European Convention on Human Rights (ECHR) and the International Covenant on Civil and Political Rights (ICCPR). This Insight will explore some of the more significant legal implications of the continuing SOE regime under Turkish constitutional law and international human rights law.[2] Turkish Constitutional Law Article 15 of the Turkish Constitution provides the standards that govern suspensions or derogations relating to the exercise of fundamental rights and freedoms.[3] The first paragraph of this article stipulates that any derogation measure may be taken only to the “extent required by the exigencies of the situation”—in essence, this incorporates the principles of necessity and proportionality, which apply even during emergencies. Additionally, it provides that any measures taken must be in conformity with Turkey’s international obligations. The second paragraph of Article 15 sets out rights that are non-derogable even during exceptional circumstances: Even under the circumstances described in the first paragraph [in times of war, mobilization, martial law, or a state of emergency], the individual's right to life, and the integrity of his body and mind shall be inviolable . . . ; no-one shall be compelled to reveal his/her religion, conscience, thoughts or opinions or be accused on account of them; offences and penalties shall not be made retroactive, nor shall anyone be held guilty until so proven by a court ruling.[4] According to Article 121 of the Constitution, once an SOE has been declared, the Council of Ministers, chaired by the president of the Republic, may issue any decree having force of law necessitated by the SOE. Notably, decrees issued under SOEs are often used to restrict fundamental rights, but, in contrast to ordinary decrees, are generally not subject to review by the Constitutional Court. Article 148 of the Constitution specifically states that “[d]ecrees having the force of law issued during a state of emergency . . . shall not be brought before the Constitutional Court alleging their unconstitutionality as to form or substance.”[5] International Human Rights Law Article 4 of the ICCPR and Article 15 of the ECHR afford states parties the possibility of derogating from most obligations in times of public emergency threatening the life of the nation to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with other obligations under international law. As under Turkish law, this implicitly includes a requirement of necessity and proportionality. According to Article 4(2) of the ICCPR, no derogation is permitted from, inter alia, the right to life (Article 6); freedom from cruel, inhuman or degrading treatment or punishment (Article 7); freedom from slavery and servitude (Article 8(1) and (2)); prohibition of debtor’s prison (Article 11); non–retroactivity of the law (Article 15); the right to be recognized as a person before the law (Article 16); and the freedom of thought, conscience, religion or belief (Art. 18). The list of non-derogable rights in Article 15(2) of the ECHR is shorter, including the right to life (Article 2); prohibition of torture or inhuman or degrading treatment or punishment (Article 3); prohibition of slavery and servitude (Article 4(1)); and no punishment without law (Article 7).[6] Measures derogating from the provisions of the ICCPR must be of an “exceptional and temporary nature” according to General Comment No. 29 of the UN Human Rights Committee.[7] The degree to which Turkey is in compliance with this requirement is questionable considering the likelihood of further extension of the SOE measures. Assessing the Situation in Turkey A number of measures taken pursuant to the state of emergency raise very serious concerns under Turkish constitutional law and international human rights law, notwithstanding the fact that Turkey has chosen to derogate from a number of its obligations. These concerns are heightened in light of the fact that the Turkish Constitution, on the one hand imposes limits on derogations from human rights requirements, and on the other hand fails to provide any effective oversight mechanism to ensure that these limits are observed. More specifically, in many cases, the proportionality of the measures taken to the scale and extent of the public emergency, and thus the necessity of the measures taken, is questionable, as recently iterated by the Human Rights Commissioner of the Council of Europe.[8] The decrees adopted pursuant to the SOE have far-reaching consequences for human rights. One of the most contentious measures concerns the extension of police powers to detain suspects for up to thirty days without judicial review,[9] despite the provisions contained in Turkish Constitution Article 19, ECHR Article 5, and ICCPR Article 9, which guarantee that anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer. In the case of Aksoy v. Turkey, the European Court of Human Rights held that detention of fourteen days without judicial review, even during a legitimate state of emergency, violated the state’s human rights obligations.[10] The Court stated that the period was “exceptionally long, and left the applicant vulnerable not only to arbitrary interference with his right to liberty but also to torture.”[11] Already, concerns about the government’s commitment to prevent torture and ill-treatment have been raised both by the Council of Europe Commissioner of Human Rights[12] and in a recent Human Rights Watch report.[13] Inhuman treatment and torture of detainees violates Article 17 of the Constitution, Article 7 of the ICCPR and Article 3 of the ECHR. All three instruments prescribe that no derogation is permitted from prohibition of torture even in time of public emergency.

The decrees also allow for the review of detention, objection to detention, and requests for release to be conducted solely on the basis of the case file,[14] which cannot be reconciled with Turkish Constitution Article 19, ECHR Article 5(4) and ICCPR Article 9(4), which enshrine the principle of habeas corpus, entitling anyone deprived of his liberty by arrest or detention to proceedings before a court in order to determine the lawfulness of the detention.[15] This is also inconsistent with Article 15 of the Turkish Constitution, which makes the right to be considered innocent until proven guilty by a court ruling (Article 38 of the Constitution) non-derogable. Additionally, officers have been present during interviews between detainees and their lawyers, and documents and records used during the interview are being seized, which is impacting the right to fair trial pursuant to Turkish Constitution Article 36, ICCPR Article 14 and ECHR Article 6.[16]

The decrees explicitly apply to both the public and private sector, as well as natural and legal persons.[17] The decrees have been applied to, among others, civil society organizations, private educational institutions, trade unions, hospitals and clinics, the media, as well as business and financial establishments. More than a thousand NGOs and trade unions, and more than a hundred media establishments have been dissolved and liquidated without judicial proceedings, raising very serious concerns regarding respect for their right to property (Constitution of Turkey, Article 35 and Optional Protocol 1 Article 1 of the ECHR).

Many of Turkey’s actions clearly implicate the freedom of expression (Constitution Article 26, ECHR Article 10, ICCPR Article 19) and freedom of association (Constitution Article 33, ECHR Article 11, ICCPR Articles 21 and 22). Turkish police have raided the offices and detained the editor and twelve senior staff members of one of Turkey’s oldest, left-leaning newspapers, alleging that they had published content that attempted to legitimize the coup.[18] In addition to opposition press, opposition parties have also been targeted. Twelve deputies, including two co-chairs of the People’s Democratic Party, the third largest party in Turkey’s parliament, have been detained for “making propaganda for a terrorist organization.”[19] These measures have very clear implications on the right not to be accused on account of one’s thought or opinions, which is a non-derogable right according to the Article 15 of the Constitution.

Since July 15, between approximately 70,000 and 110,000 civil servants have been suspended or dismissed without any investigation or possibility of legal challenge. These individuals are banned for life from working in the public sector and their titles, ranks, and licenses (e.g., to practice law, to use firearms) are revoked for all time, according to at least one decree, “without any need for conviction.”[20] Of those who have been dismissed, 3,400 are judges and prosecutors, which amounts to nearly one-fifth of all Turkish judges and prosecutors. This raises concerns pursuant to Article 139 of the Turkish Constitution, which provides that “judges and public prosecutors shall not be dismissed, or . . . be retired before the age prescribed by the Constitution; nor shall they be deprived of their salaries, allowances or other rights relating to their status, even as a result of the abolition of a court or a post.”[21]

Additionally, those who are dismissed are being stigmatized when their names are listed in annexes to the decrees, which may constitute interference with their private life and “unlawful attacks on [their] honour and reputation” (Constitution Article 20, ECHR Article 8 and ICCPR Article 17). In the Sayadi case, the Human Rights Committee concluded that dissemination of authors’ names by publication in the Official Gazette constitutes an attack on their honor and reputation in light of the negative association some persons could make between the authors’ names and the title of the UN sanctions lists.[22]

Further, the passports of those who have been dismissed or are under investigation, as well as the passports of their spouses, have been cancelled where continuing possession of their passports is considered “detrimental in terms of general safety.”[23] The cancellation of passports raises issues regarding the right to liberty of movement (Constitution Article 23, ICCPR Article 12).[24] The rights covered by Article 12 are not absolute, insofar as restrictions may apply to the extent that they are “provided by law, are necessary to protect national security, public order . . . and are consistent with the other rights recognized in the Covenant.”[25] In its General Comment 27, the Human Rights Committee emphasized that restrictions on the liberty of movement must be necessary and proportionate, and “appropriate to achieve their protective function.”[26] Notably, in this regard, the Turkish government has not articulated a convincing argument for why seizing these passports was necessary to protect national security and the public order. Furthermore, extending the current restrictions on the right to travel freely to family members and imposing them under conditions that are not precisely defined—such as “detrimental in terms of general safety”—do not meet the Human Rights Committee’s standards articulated in General Comment 27.[27]

All of these measures are being applied with an alarming level of arbitrariness. The measures are aimed at those who “belong to, connect to, or contact with” alleged terrorist organizations.[28] However, the criteria for assessing membership, affiliation or connection have not been specified. This arbitrariness is heightened when considered along with the simplified administrative procedures enabling the dissolution of legal entities and the dismissal of public employees. Moreover, the administrative authorities implementing the measures are entitled to complete legal, administrative, criminal, and financial immunity, which is inconsistent with the right to an effective remedy (Constitution Article 40, ECHR Article 13, ICCPR Article 2).

Of most of these measures, one could ask whether such extreme steps are “strictly required by the exigencies of the situation.” Ultimately, it will be for the domestic courts, the Human Rights Committee, and the European Court of Human Rights to consider whether the proper balance is achieved or whether Turkey has violated its international legal obligations during the state of emergency. The situation currently prevailing in Turkey, however, suggests that it will be difficult for the authorities to justify the necessity and proportionality, and thus the continuation, of the existing measures.

About the Author: Başak Bağlayan is a PhD researcher in Public International Law at the University of Luxembourg.