26 July 2016

To the Press and Public Opinion

THE DECREE DEVISED WITHIN THE SCOPE OF THE EMERGENCY STATE LAW AND IGNORING HUMAN RIGHTS AND FUNDAMENTAL PRINCIPLES OF RULE OF LAW SHOULD BE URGENTLY REVOKED!

 

As the Human Rights Association (HRA) and the Human Rights Foundation of Turkey (HRFT), two organizations, driven by the motivations of reckoning with the military coups and avoiding coup attempts, we would like to share once again some of our opinions that we have already expressed in the recent days:

  • Those who attempted at a military coup on July 15, 2016, like those who made such attempts before, have committed a crime against humanity. All necessary legal actions should be taken against the plotters, as foreseen by the Constitution and the laws. They should be fairly tried and within the rule of law; and those who have been found guilty should be punished.
  • Currently, our country is living in the times of emergency. Certainly, the regulations that will enable coping with these times should be made urgently; without compromising the obligations under the international law, and without touching the essence of the fundamental rights and freedoms.
  • Despite the commonality of the terminology, it is impossible to cope with the times of EMERGENCY we are living in today, by relying on the STATE OF EMERGENCY LAW enacted on October 27, 1983 during the military coup of 12 September, with the aim of consolidating the junta rule. Military coup attempts cannot be discarded by military coup mentality and laws deriving from it. On the contrary, application of such laws reinforces the military coup mentality.
  • However, the concerned STATE OF EMERGENCY LAW allows the issue of governmental decrees having force of law and immune from judicial control. As such, the legislative power (the Grand National Assembly of Turkey), which has already been severely eroded, will be rendered completely ineffective. Furthermore, the destruction of the democratic principles such as the rule of law, judicial independence, separation of powers, and respect for human rights will be deepened.

Following our above-mentioned concerns, the “Decree having force of Law” with a number. 667 concerning the measures taken within the scope of the State of Emergency, is published in the Official Gazette on July 23, 2016. This decree that is devised ignoring the human rights and the fundamental principles of the rule of law, is clearly incompatible with the Turkish Constitution Article (15) Clause (2); European Convention on Human Rights (ECHR) Article (15); and even with the articles of the Turkish Constitution concerning the decrees during emergency states.

The Turkish Constitution Article (15), Clause (2) clearly states that the right to life should be protected; material and moral integrity cannot be violated in other words torture, ill-treatment and degrading treatment are prohibited; criminal law cannot be applied retrospectively; one is considered innocent unless proven guilty (presumption of innocence); and that no one can be forced to disclose religious beliefs, opinions, and can be charged because of these. These are rights that should be protected under any circumstances, and can by no means be restricted.

Indeed, as stated in the Article (15) of the ECHR (to which Turkey is a party); the right to life regulated in the Convention’s second Article, the prohibition of torture, ill-treatment and degrading treatment regulated in the Article 3; the prohibition of slavery and forced labor regulated in Article 4; and the principle of no punishment without law regulated in the Article 7 can by no means be restricted.

Besides, Turkey is a party to the UN International Covenant to the Civil and Political Rights.  Under any circumstances, the “guarantees to due process” regulated in both conventions cannot be subjected to any measures that will restrict the protection of the unexceptionable rights. Deviation from the fundamental principles of fair trial as they appear in the Constitution and conventions, including the presumption of innocence, is strictly prohibited. (The General Comment no.29 concerning the UN International Covenant to the Civil and Political Rights Article 4: Exceptions concerning the state of emergency, Paragraph 11 (2001))

Briefly, the Turkish Constitution Article (2), Clause (2) and the ECHR Article (15) regulate the fundamental rights and freedoms that should be protected under any circumstances. These rights cannot be violated nor limited even in a state of emergency.

The Decree having force of Law published on July 23, 2016 is comprised of clauses almost none of which can be linked to the subject and duration of the state of emergency declared. These clauses can not be explained on the basis of principle of proportionality.

The Decree having force of Law Article (2) Clause (1) declares the closure of the private health institutions and establishments, private education institutions and establishments, private student dorms and guesthouses, foundations/associations and their commercial enterprises, foundation universities, syndicates, federations and confederations that are identified to be owned by, adhered or related to the Pro-Fettullah Terror Organization (FETO/PDY).

Article (2) Clause (2) of the same decree states that “institutions and establishments that are not mentioned in the annexed list, yet are identified to be owned by, adhered or related to the formations or groups or terror organizations determined to pose a threat to the national security; will be closed down by the minister’s approval upon the proposal of the commission to be formed within the related ministry”.

First, it should be stated that the closure of the institutions and organizations, and the seizure of all their assets directly and without court decision is a violation of the right to a fair trial guaranteed by the Constitution; of the presumption of innocence mentioned in the Constitution Article (15) Clause (2); the right to association; and finally, of the right to property. As these institutions and establishments are shut down without a court decision, there is the possibility that they obtain these rights back via judicial process in future.

The expression “identified to be owned by, adhered or related to the formations and/or groups and/or terror organizations determined to pose a threat to the national security” appearing in this regulation, points to a subjective evaluation left to the National Security Council, and hence the Government. As such, it provides the ministries with unlimited and nonobjective extra-constitutional authorities.

This enables the Government to exercise the State of Emergency Decree having force of Law to all opposing social institutions and establishments. As long as the state of emergency is maintained, these institutions and establishments will feel the menace of closure like a sword of Damocles hanging over their head, which will restrain them from freely criticizing the Government. This implies a destruction of the political space, hence the democratic life, and a complete suspension of the legal security and guarantee.

The Articles (3) and (4) pave the way for the Supreme Court members, judges, prosecutors, local administration personnel, and the higher education staff to be dismissed from profession without conduct of fair investigation. Furthermore, the prohibition of the concerned persons from civil service is not limited to the period of emergence state and is a lifetime prohibition. As such, these articles suspend all the guarantees regulated in the specific laws, and the Constitution.

Doubtlessly, persons –in the case of actions mentioned in the Articles 3 and 4 of the decree-, and institutions –when they are closed down according to the Article 2- can always claim their rights by judicial process.

The Article (5) of the Decree clearly violates the freedom of travel, by stating that the passports of those have been subjected to administrative acts, criminal investigation and prosecution will be canceled.

The Decree Article (6) Clause (1) Section (a) extends the maximum duration of detention to 30 days, and thus, violates the principle of absolute prohibition of torture, ill-treatment, and degrading treatment, which is guaranteed by the Constitution Article (15) Clause (2), as well as the ECHR Article (15).  It should be recalled that even under the absolute martial law, Article (15) of the related law limited the maximum duration of detention to 15 days; this could be protracted for another 15 days with a judge’s decision. The maximum duration of detention cannot be extended by a decree; as a martial law is not declared in Turkey; and the Article (26) of the State of Emergency Law concerning the detention periods was revoked on 1992. When the fact that maximum period of detention has been reduced on 1997, from 30 days to 10 days for the regions under the state of emergency, it would be more clear why the current situation is worrying.

As human rights organizations we will definitely make applications to launch the appropriate trial and complaint mechanisms (the European Court of Human Rights being in the first place) against the extension of the maximum period of detention to 30 days that brings a serious risk in terms of the violation of the principle of prohibition of torture; and against the regulations that will lead to the suspension of procedural guarantees (particularly access to an attorney at law).

The Decree Article (6), regulating several investigational procedures, limiting the access to an attorney at law, and mentioning a new enforcement regime; foresees the application of these regulations until the completion of the trial process concerning persons against whom legal actions are taken. This strongly suggests that the emergency state would extend behind the duration initially stated. From all aspects this situation is worrying, and implies the violation of the right to fair trial.

Like the provisory Article 15 of the Constitution of September 12; the Article 9 of the concerned decree, brings a complete impunity by stating that no legal, administrative, fiscal and penal responsibility will arise related to the functions fulfilled by the persons taking decisions and implementing actions within the scope of this decree.  This is in contradiction with the regulation stated in the ECHR Article (15) Clause (2), and Article (7). It should be underlined that despite the Article 9 of the Decree, the responsibility of those who play a role in the violation of human rights can by no means be ruled out.

The application of the Decree having force of Law with No. 667 as it is, is unacceptable since it is in contradiction with the Turkish Constitution Article 15, as well as several articles of the European Convention on Human Rights. While suspending the rights and freedoms on the one hand, it will also debilitate the fight against serious crimes, such as the coup attempts. Therefore, this Decree having force of Law devised ignoring the values deriving from the human rights and the rule of law, should be urgently revoked.

 

 

Human Rights Association

Human Rights Foundation of Turkey

To download the statement as word file please click here.