The Turkish State of Emergency Under Turkish Constitutional Law and International Human Rights Law

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.