The 2016 coup attempt and two-year State of Emergency saw what has been termed a ‘purge’ of Turkish society, and the oppression of many rights and freedoms which should have been protected under the Turkish Constitution and International Law. For instance: the right to freedom of expression; the right to freedom of assembly; the right to a fair trial; the right to presumption of innocence; freedom from arbitrary detention; freedom from torture; freedom from discrimination; and the right to freedom of movement. As noted, with recognition of this abolition of human rights, there was optimism when the Turkish government decided not to renew the State of Emergency for an eighth time.
Yet as the past year has revealed, the Turkey purge and the rampant human rights abuses has not subsided with the lapse of the State of Emergency. The State of Emergency in itself has had disastrous consequences for all sectors of Turkish society, consequences which lasted well past July 19 2018 and that will likely last far into the future. Moreover, constitutional amendments which entered into force in June 2018, alongside a new anti-terrorism Law No.7145 which was enacted in July 2018, effectively made the State of Emergency redundant. Turkey was transformed into a one-man-regime under President Erdoğan of the AKP, and emergency decrees were cemented into law. Thus, the end of the State of Emergency was only symbolic, with very little effect on the everyday lives of Turks.
This Platform for Peace and Justice report gives a comprehensive analysis of the measures undertaken during the State of Emergency and the lasting impacts of said measures. It shows how very little has changed over the past year since the State of Emergency ended in July 2018.

The report is divided into six chapters:

-Bans on Events and Assemblies

-Dismissals and Shutdowns

-Press Freedom

-Arbitrary Detentions

-Expansive Presidential Powers

-Policy recommendations

DOWNLOAD FULL REPORT

A Parliamentary Resolution passed at the beginning of March has urged the Commission and the Council to suspend accession negotiations with Turkey in light of backsliding in the fields of human rights, rule of law and democracy. Since the failed coup d’état in July 2016, the Turkish government issued a state of emergency, under which disproportionate measures were taken in the name of anti-terrorism.

While the European Parliament (EP) welcomes the Turkish government’s July 2018 decision to formally lift the state of emergency, the report asserts that this is ultimately a nonaction as measures in place during the state of the emergency are still being applied.

These measures include excessive power in the executive branch, purges of so-called state opponents, improper judicial procedures and arbitrary restrictions to freedom of expression.

The report condemns the arrests and job dismissals of Turkish citizens and civil servants made without due process and calls on Turkey to release those who are unlawfully detained and to have cases reviewed by an independent judicial court.

It mentions by name the examples of journalist, Can Dundar, human rights activist, Osman Kavala and politician, Selahattin Demirtaş, all of whom have been improperly targeted by the Turkish government for crimes against the state.

The report delves into key areas of concern including curtailment of the freedom of press and of wider civil society, lack of democracy, religious discrimination, violations of the rights of minorities and Turkey’s role in the Syrian Civil War. Each of these areas constitutes a breach of European Union core values and therefore the Copenhagen Criteria, making Turkey currently ineligible to join the EU. This leads the Committee to the radical conclusion that accession negotiations ought to be formally suspended, and the relationship between Turkey and the EU redefined.

In pursuance of alleged anti-terrorism, since the introduction of the state of emergency, 150,000 Turkish people have been taken into custody, 78,000 have been arrested and 50,000 remain in jail, most cases of which have no conclusive evidence. The Turkish government has also resorted to surveilling, harassing and even kidnapping Turkish citizens residing in third countries who are deemed opponents of the state. Those who have been detained claim to have experienced harsh conditions, excessively long stints in solitary confinement and other forms of torture.

While the report urges Turkey to use the proportionality principle in its anti-terrorism measures, it also calls on EU member states to carefully process extradition requests filed by Turkey and to increase protection and support for journalists and human rights defenders who are at risk.

In addition to those arrested and detained, 152,000 civil servants, including teachers, doctors and academics, have been dismissed from their posts. The Commission on the State of Emergency Measures which reviews complaints about measures taken under the state of emergency has received 125,000 applications, of which 81,000 are still awaiting a decision.

Of those cases reviewed, only 7% have had a favourable outcome. Judges and prosecutors have been under increased pressure and surveillance and over 570 lawyers have been arrested. These actions constitute a severe threat to judicial impartiality and the right to a fair trial. The report calls for serious judicial reform in collaboration with the Reform Action Group and monitoring from the European Commission.

The report claims that Turkey has taken disproportionate and arbitrary measures limiting freedom of expression and access to information. 160 media outlets have been closed and 114,000 websites have been blocked.

Moreover, in wider civil society, even after the lifting of the state of emergency, demonstrations and marches have been banned. Turkey is urged to release and acquit the activists, human rights defenders, journalists and other media workers who have been unlawfully arrested and detained.

The EP’s Committee on Foreign Affairs is also concerned with the infringement on democracy and pluralism in Turkey both during and after the state of emergency.

The scrutinising role of the Grand National Assembly, the Turkish parliament which ought to be the central institution representing all citizens, has been constrained and the voices of opposition parties and trade unions have been marginalised and even outlawed.

In some regions of Turkey, particularly the south-east, locally-elected mayors have been stripped of their posts and replaced with government-appointed trustees.

The report insists that Turkey undergoes significant constitutional and judicial reform in cooperation with the Venice Commission, the Council of Europe’s commission for Democracy through Law.

The report condemns Turkey’s lack of respect for religious freedom, asserting that churches continue to face problems over establishment and continuation. Turkey must implement reforms that promote freedom of thought, conscience and religion such as allowing religious communities to establish legal personalities and eliminating discrimination based on religion.

The Committee references the case of the Aramean churches that were confiscated by the Turkish government in 2017 and emphasises the importance of protecting cultural heritage and diversity. Similarly, the report addresses concerns for the violations of the human rights of minorities such as LGBTI and Roma people.

Hate speech regulation must be brought up to the standards of the European Court of Human Rights and strategies for inclusion and integration of minorities must be implemented. The report also highlights the situation in south-east Turkey where there has been a failure to peacefully resolve the conflict with the Kurdish Worker’s Party. Here, there have been further alleged human rights abuses, excessive use of force and torture and the destruction of historical heritage sites on the part of the Turkish government.

One positive note amongst the punitive condemnations is the “great hospitality” Turkey has shown to Syrian refugees following the outbreak of the war; the Committee notes, for example, that 60% of child refugees are enrolled in Turkish schools. However, there are concerns around the Turkey-backed groups in the Free Syrian Army that are said to have seized, looted and destroyed property of Kurdish people. The report urges Turkey to compensate those affected and to drop charges against those who have criticised Turkey’s military action in Syria.

The report concludes with recommendations about the future relationship between the EU and Turkey.

While the prospect of accession was supposed to act as a motivation for positive reform in Turkey, as outlined, since 2016, the state of human and fundamental rights, pluralistic democracy and freedom of expression has regressed.

The Commission and the Council are thus advised to formally suspend accession talks with Turkey in accordance with the Negotiation Framework. The EU ought to remain open to democratic and political dialogue with Turkey and the funds allocated under the Instrument for Pre-Accession Assistance (IPA) ought to be used to support Turkish civil society, human rights defenders, students and media outlets.

Moreover, the Committee states that a “door should be left open” for modernising the Customs Union with Turkey, noting that Turkey is the EU’s fifth largest trading partner and that the EU is Turkey’s largest.

Cooperation in the areas of customs, trade and the economy may lead to dialogue in other areas such as sustainable development and labour rights which would go some way to support fair, open and pluralistic systems in Turkey.

This report investigates controversial rulings of the European Court of Human Rights on cases arising from Turkey, particularly submitted by the tens of thousands of dismissed public servants. The report elaborates on ECtHR’s contradictory rulings with its own established standards.

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About The Author

Leighann Spencer

Leighann Spencer is a criminologist, writer, and activist. Her interests include vigilantism, identity, conflict, and state accountability in Africa and Turkey. She has written extensively on these topics for the likes of Vocal Europe, African Arguments, and The Conversation. She previously worked on anti-vigilantism initiatives and police accountability with a NGO in Cape Town, South Africa, before undertaking a solo study on vigilantism there. She obtained degrees in criminology and psychology at Deakin University and is now a PhD candidate at Charles Sturt University, where she is researching the role of territory and identity in Nigerian vigilantism and state complicity.

Istanbul Convention

Turkey was the first country to ratify the ‘Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence’ (the Istanbul Convention) in 2012. GREVIO is the body of independent experts mandated to monitor the implementation of the Istanbul Convention.

Surrounding the ratification of the Convention, Turkey commenced a range reforms. For example, the comprehensive Law No.6284 ‘Protection of Family and Prevention of Violence Against Women’ was enacted in 2012, and an Istanbul Convention oversight committee was established within the Directorate General of the Status of Women.

However, GREVIO found that there are numerous factors undermining the implementation of the Convention. Primarily, there is the traditional patriarchal view of a woman’s role in society and a lack of thorough policies to ensure equality.

Then there is the lack of available data on violence against women, despite Article 11 of the Istanbul Convention requiring systematic data collection on such. Not only does this make it difficult to monitor and evaluate laws and policies, it also causes distrust amongst the population.

When NGOs and the media report worrying statistics, the government simply refutes them without providing substitute statistics. The lack of official data must be taken into consideration when reflecting on the following.

Turkey’s Patriarchal System

“Inequality among women and men is a cause as much as it is a consequence of violence against women.” – GREVIO

Numerous reports have revealed that women are not seen as equal to men in Turkish society. Last year, the World Economic Forum’s Global Gender Gap Report ranked Turkey at 131 out of 144 countries. The traditional view that females should stay at home and look after their families remains, which relates to violence against women in a variety of ways.

For one, a woman’s education and employment opportunities are directly related to vulnerability to violence and abuse, and vice versa. Research by Turkey’s Hacettepe University Institute of Population Studies showed that one third of females were prevented from pursuing their education. One out of ten were prevented from seeking employment.

Inequality also impacts the way that relevant policies are devised, and how officials react to violence against women. A prime illustration is the restructuring of Turkey’s Ministry of Women and Family Affairs to the Ministry of Family and Social Policies. GREVIO notes that since this change, resources are being redirected from women to family-oriented policies. This reflects the view of women as house-makers and can negate domestic violence for the sake of family. A 2016 Parliamentary Investigation Commission mandated to reduce divorce rates and promote family unity – as recorded by GREVIO – sums up this problematic affair.

It is no wonder that these discriminative policies exist when government officials regularly make sexist statements. GREVIO very briefly touches upon this issue in their report, but cases must be highlighted. For example, President Erdogan himself declared that men and women could not be equal because it is “against nature”. He advised women to have at least three, preferably five, children, calling childless women “deficient” and “incomplete”. A politician from the ruling Justice and Development Party (AKP), Erhan Ekmekci, also made statements of a similar nature. He said that “when girls get educated, boys are not able to find someone to marry”.

These statements send a concerning message, reflecting the entrenched view that women are not equal to men. It communicates that repression and violence towards women will be met with impunity, impacting the way that others deal with women’s rights. Indeed, representatives at all levels of the justice system have dealt with violence against women in a problematic manner.

Enforcing the Law

“Over 80% of women who turn to the police do not have their statements taken.” – GREVIO

Violence against women is under-reported world over. In patriarchal systems such as Turkey, this is amplified. Women fear the stigma attached to abuse, or retaliation by the perpetrator or society as whole. When women do attempt to report, the crimes are rarely taken seriously. GREVIO details how police officers and judges sympathise with the perpetrator, using justifications such as the women’s choice of dress, that she was not obeying her husband, or simply saying that it is a private family matter. Judges have been known to give men reduced penalties for ‘good appearance or behaviour’. And that is if the crime even makes it to court.

The Turkish police often discourage women from reporting or seeking support services. Officers also make the woman wait for hours and do not provide them their rights. Many victims have been convinced to undertake mediation, regardless of the fact that the law prohibits this for violence against women. Turkish authorities told GREVIO that there are accountability mechanisms in place, with sanctions applied to officers who re-victimise women. However, an absence of data makes this hard to believe.

Even when a woman receives help from officials, it is not adequate. Protective measures and injunctions are, theoretically under Law No.6284, provided to woman at risk. However, GREVIO states that violations of these orders are often not addressed, with instances of victims injured or killed whilst under such measures. In 2017 alone, there were at least 337 gender-based killings. As GREVIO emphasises; “The question arises as to whether at least some of the victims of gender-based killings might have been saved”.

Violence Prevention Initiatives

“Turkey preventive intervention programmes for domestic violence offenders revolve mainly around the principles of anger management and self-control, whereas their primary focus should be on the need for perpetrators to take responsibility.” – GREVIO

The main preventative initiative in Turkey are Şönims, state-run ‘one-stop stations’. GREVIO found that these do not always provide all services needed, subjecting women to lengthy procedures to gain the help that they require. Staff can be unqualified and under-experienced. And alike state policies generally, some Şönims operate as ‘family therapy centres’ rather than supporting the victim, reinforcing traditional values. GREVIO points out the inherent problem with these services being supplied via a state-run institution. On top of patriarchal values reinforced by the state, victims might be reluctant to report and there is an over-reliance on state funding.

This highlights the need for NGOs. The GREVIO report takes an ambiguous stance on this. On the one hand, they state that NGOs have received government support for various initiatives. Yet on the other hand, they relay concern about a lack of funding for initiatives, and express “alarm over the increasingly restrictive conditions experienced by civil society organisations, in particular independent women’s organisations”. These restrictions are expanded on below. Another issue is the lack of communication between state bodies and NGOs. GREVIO urges for constructive dialogue with the inclusion of minorities such as Kurdish women, LGBTI, and migrant women.

Dialogue would both empower women and help determine successful policies. Aside from the problems with Şönims, other aid is difficult to access. For example, financial aid, help to find employment, and affordable housing. GREVIO notes a positive increase in the amount of women’s shelters across Turkey. However, Law No. 5393 provides for every municipality with a population of over 100 000 to establish a shelter. To date, only 32 of the 201 municipalities have met this obligation. It is a lengthy process to gain access to a shelter, and there are restrictive rules once residing there. There is also lack of services specifically for victims of sexual abuse.

In terms of programs for abusive men, these focus on easing his condition – seen as a psychological ailment – rather than challenging his perception on violence towards women. In addition, GREVIO points out that: “prosecution – and the other forms of protection which criminal law affords, such as pre-trial detention – tend to be viewed as a secondary process. This prevents perpetrators being held to account, lessens the opportunity of the state to protect its citizens and fails to signal Turkey’s abhorrence of violence against women.” This is despite the Istanbul Convention emphasising the end of impunity for violence against women.

Violence and Harassment

“Psychological violence is not criminalised in the Turkish Criminal Code.” -GREVIO

Data on violence and harassment against women in Turkey is scarce. The following draws on Hacettepe University Institute of Population Studies research. This revealed that the most prevalent form of violence against women in Turkey is psychological abuse. 44% of women who had ever married have experienced this, which includes: insults, humiliation, intimidation and instigating fear, and threats to hurt the victim or someone else they care about. It was also found that there is a high prevalence of controlling behaviours, such as: controlling women’s whereabouts, dress style, and who they should see or talk to.

Thus, it is concerning that psychological violence is not considered a criminal offence. Single acts can fall under crimes such as blackmail or coercion, but this fails to address patterns of pervasive abuse. GREVIO stresses the need for authorities to reevaluate the Turkish Criminal Code in this regard. Similarly, 27% of women have experienced stalking at least once in their life, yet this is not criminalised. It falls under other crimes such as blackmail, threats, sexual harassment, and violation of privacy, which do not adequately cover all cases.

Regarding sexual violence, 12% of women who have ever been married have been victimised by their husbands or intimate partners. 3% of women have been abused by those other than husbands or intimate partners. 9% of women have been exposed to childhood sexual abuse (before 15 years of age). The laws against this crime are considered appropriate by GREVIO. However, as mentioned, there is no systematic data, making it near impossible to determine the laws’ effectiveness. This also signifies that prevalence rates of violence and harassment are under-estimated. And, then there is femicide and so-called honour crimes.

Honour Crimes

“Crimes, including killings, committed in the name of “honour” continue to occur and offenders receive reduced sentences by invoking motives similar to ‘honour.’” – GREVIO

The Turkish We Will Stop Femicides Platform has been tracking violence against women since 2010. In January and February 2018 alone, 28 and 47 women were murdered respectively. From their statistics, femicide appears to be increasing. These cases are often ‘justified’ as honour killings; for example, if the woman requests separation or divorce, if there is suspicion of infidelity, or if a woman has a relationship without marriage or family permission. Article 42 of the Istanbul Convention explicitly prohibits justifications for violence against women.

Yet as GREVIO outlines, Article 29 of the Turkish Criminal Code considers it mitigating if the offence was committed “in a state of anger or severe distress caused by an unjust act”. This reduces all sentences by one to three quarters. In 2005, Article 29 was amended to remove the possibility of a reduced sentence for murder justified by custom. Nonetheless, that this Article remains at all “opens the door for unacceptable justifications of crime and victim blaming”. GREVIO believes it may not even extend to remove the possibility of honour crimes. With no judicial data, it is impossible to tell whether the amendment has made a difference.

The use of justifications for murder can be linked to the entrenched patriarchal view, enforced even by Turkish officials, that women are not equal to men and should be obedient wives. Certainly, GREVIO found that perpetrators do not feel as if they are to blame for their actions. Furthermore, there have been credible reports that women and girls in Turkey are being forced or pressured to commit suicide in the name of ‘honour’. This justification is also often used to enforce marriage upon women and children.

Forced Marriage & Related Abuse

“More than 25% of women in Turkey reported having been married before the age of 18, a percentage which rises to 32% in rural areas.” – GREVIO

Forced marriage, particularly child marriage, is a grave problem in Turkey. It not only takes away a women’s freedom; it gives rise to a variety of other abuses. It leads to an increased risk for mental health problems and sexually transmitted diseases, and to complications during childbirth if the girl is underage. It negatively impacts the women’s prospects for education and employment. The Turkish Philanthropy Funds has reported that no child brides in Turkey have achieved a high school diploma. On top of this, forced marriage increases the risk of sexual, physical, and emotional abuse.

Nevertheless, forced marriage is not specifically criminalised in Turkey. Instead, it comes under deprivation of liberty, human trafficking, and sexual assault. As GREVIO states, this response is impaired. Utilising the framework of sexual assault can actually see the victims themselves facing criminal prosecution. There is also a lack of civil law to allow an annulment of a forced marriage without severe financial or administrative burdens for the victim.

The lack of legal frameworks to address forced marriages is worrying. What is worse is the authorities’ attitudes. Although the age for girls to be married was increased to 17 in 2001, people became sceptical when Turkey’s Directorate of Religious Affairs (Diyanet) acquired the mandate to perform civil marriages in 2017. Diyanet previously stated on their official website that those at the age of adolescence have the right to marry. On the same website, they defined adolescence as over 9 years for girls and over 12 for boys. This implies that they would allow girls to marry from the all-too-young age of 9 years.

Indeed, GREVIO notes that 60% of Turkish marriages involving a bride under the age of 18 are performed by religious leaders. The Diyanet statement sparked public outcry and a demand from the political opposition for an investigation into child marriage. But support from the ruling AKP for an investigation has yet to be seen. GREVIO expresses that they are “extremely concerned that in taking on their new responsibility, the [Diyanet] authorities presiding over religious marriage rites might not consistently uphold the standards of the law aimed at putting an end to illegal child and forced marriages”.

In 2016 the AKP also attempted to pass legislation which would retrospectively pardon those convicted of child sexual assault if they married their victim. This drew widespread condemnation and the bill was withdrawn. However, there are fears that it will return with minor revisions. On that note, laws surrounding child sexual abuse are insufficient. GREVIO records that those married before the age of 18 are almost twice as likely to experience sexual abuse. Yet sexual acts with those over the age of 15 are not considered abuse if they did not involve force, threats or deception. This contradicts the Istanbul Convention which defines abuse if there is simply an absence of freely given consent.

Child marriage increases significantly during periods of crisis. This is important to consider as Turkey has had an influx of refugees from Syria. GREVIO references a 2014 UNHCR survey which found the average age of marriage for Syrian refugee girls in Turkey was between 13 and 20 years. “Many respondents saying if they had had the money, they would not have resorted to marrying off their daughters at such a young age”. On that note, it is positive to see GREVIO dedicate a section of its report to gender-based migration and asylum.

Gender-Based Migration & Asylum

“GREVIO could not verify information showing whether women, including pregnant women and women with disabilities, are being detained on arbitrary grounds in deportation centres and/or are being pressured into accepting their return to countries in which they risk being subject to torture, inhuman or degrading treatment or punishment.” – GREVIO

According to official data, there are 3 038 480 Syrians with ‘temporary protection’ in Turkey, including 1 632 508 women. GREVIO does stress that it is likely that there are unregistered Syrians. When it comes to abuse and violence against migrant or refugee women, they face certain difficulties in reporting and gaining help. This includes languages barriers, lack of knowledge about the Turkish legal system, discrimination from services, or other lack of access to services.

Furthermore, refugee and migrant women are particularly vulnerable to violence and abuse. Not only are they susceptible to forced marriage, but also to sexual violence; for example, in return for goods and services which has been shown to be frequent across deportation centres and refugee camps. This needs to be addressed by comprehensive policies and programmes designed specifically for migrant and refugee women.

Another issue, unaddressed by GREVIO, is that of women being forced into labour. In 2017 Turkey showed the second greatest increase in the global Modern Slavery Index, from the 58^th country up from 110. It is now ranked as 48. This is largely due to Syrian refugees, with women and children are at the greatest risk. With associated problems such as physical harm from intensive labour and abuse, and psychological harm from harassment and exploitation, this must also be stemmed.

Impact of Anti-Terror Operations

“Anti-terror measures, the security operations in South-East Turkey, and the draining of resources in the civil service sector that came with the mass dismissal of civil servants following the failed coup attempt are not propitious to the fulfilment of women’s right to live a life free from violence.” – GREVIO

A particularly prevalent issue for women in current-day Turkey is the impact of anti-terror operations in the South-East and in the post-coup crackdown. GREVIO does list this at the onset as a dominant factor affecting successful implementation of policies and laws against violence against women. Yet they fail to emphasise examples throughout the report.

One impact comes from the suppression of civil society, which includes those working for gender equality and the prevention of violence against women. Over 1,300 NGOS were shut down via decree during the post-coup state of emergency, and human rights defenders arrested. Kurdish civil society, with regard to the South-East operations, has also been targeted. This severely effects women’s access to services and precludes non-state voices from the decision-making process. Even those who are not directly affected will feel the repercussions; for example, fear of acting against the state, or a strain on the remaining resources.

The post-coup crackdown has also seen a high turnover of public-sector workers. Law enforcement agencies and the judiciary have been purged, creating an inexperienced and under-trained workforce. This exuberates the already existing problems with preventing and prosecuting violence against women. In addition, an increasing amount of time and resources is being spent on both these operations. President Erdogan has said he receives daily reports on the progress of political trials, yet there is no systematic data on trials for violence against women.

Then there is the derogatory remarks and violence against women deemed to be linked to ‘terrorist organisations’. In the South East, women have been subjected to violence by the military, with pictures of naked raped or killed women shared on social media with the means of intimidation. After the coup attempt, video footage revealed a police officer ask an imprisoned soldier whether he has a daughter, threatening “I’ll f*** her”. There have been similar reports of threats to target detainees’ wives and daughters.

Women have too been imprisoned and subjected to ill-treatment. Over 17,000 women are detained in relation to the coup attempt, and others in relation to the South-East operations. Numerous studies have shown how detention puts women at increased risk for abuse, particularly sexual abuse, often perpetrated or condoned by the State. Women also have specific physical and mental health needs. They, and their families, often suffer from separation. And this is not to mention the abhorrent treatment of pregnant women and new mothers who are imprisoned alongside their children. GREVIO really must include these issues in their evaluation.

Concluding Remarks

Overall, the GREVIO baseline evaluation report mandated by the Council of Europe is a welcome analysis of a prevalent problem facing Turkey. Primarily, the remnants of a traditional, patriarchal system are preventing success against violence against women. The current context of anti-terror operations is also a concern, which should be emphasised by GREVIO. Other issues that could have been emphasised are: inequality and abuse perpetrated by state officials; females – particularly Syrian refugees – being forced into labour; difficulties facing relevant NGOs; and women in prison at risk.

Nonetheless, the range of issues covered, and the recommendations given, are commendable. It is important to stress that as a baseline evaluation, the resulting actions taken by Turkey and the timeline and extent of the GREVIO follow-up are what will determine the report’s effectiveness. Platform for Peace and Justice looks forward to seeing how this proceeds.

The independence, impartiality and effectiveness of the Turkish judiciary have been in a dramatic decline especially since the coup attempt in July 2016 and the following state of emergency regime and thereafter. There seems to be no internal dynamic by which the Turkish judiciary can rescue itself from the impasse in which it has slipped. The non-independence and non-impartiality of the Turkish judiciary in this process have been extensively covered elsewhere.[1] Much longed intervention from the European Court of Human Rights (ECtHR) to monitor the human rights violations in Turkey has not come about even after more than two years since the coup attempt due to the ECtHR insistence of viewing the Turkish judicial system as an effective remedy. The current Turkish judicial and legal system may however well be considered as an ineffective remedy from a number of dimensions (lower courts, law enforcement, appeal system etc.). This paper mainly seeks to prove why the Turkish Constitutional Court ought not to be considered an effective remedy under the jurisprudence of the ECtHR.

The Constitutional Court has not viewed itself as authorised to review the emergency decree laws published during the state of emergency.

The Constitutional Court decided in October 2016 that it has no competence to examine unconstitutionality of the emergency decree laws in clear contradiction with its earlier precedence by relying on the wording of Article 148 of the Constitution.[2] Article 148 of the Constitution stipulates that:

“the Constitutional Court shall examine the constitutionality in respect of both form and substance of laws, decrees having the force of law, and the Rules of Procedure of the Grand National Assembly of Turkey and decide on individual applications. Constitutional Amendments shall be examined and verified only with regard to their form. However, decrees having the force of law issued during a state of emergency, martial law or in time of war shall not be brought before the Constitutional Court alleging their unconstitutionality as to form or substance”.

In its previous jurisprudence, the Turkish Constitutional Court had actually given a liberal interpretation to this article. Thus, the Court had declared itself competent to review the constitutionality of the emergency decree laws, but only to the extent that they went beyond the scope of the state of emergency ratione temporis and ratione loci.[3] In September 2016, the main opposition party CHP challenged Emergency Decree Law No. 667 before the Constitutional Court inter alia because this Emergency Decree Law introduced permanent (as opposed to temporary) measures. However, the Constitutional Court rejected the appeal and denied a review of the decree law in abstracto in October 2016.

What this would mean that the constitutional order is reduced to a single provision (Article 148) which gave way to the emergency regime and its incontestability and it is left to the arbitrariness of the executive controlled by the non-accountable President.[4]

The ruling party that is dominated parliament passed laws which made the emergency decree laws permanent laws before the lifting of the state of emergency.[5] This process of transforming the emergency decree laws into permanent Turkish legislation was thus completed in March 2018 before the ending of the state of emergency in July 2018. There is no evidence as yet though that the Constitutional Court will exercise any unconstitutionality check over these transforming laws in abstracto, which were once emergency decree laws.

The Constitutional Court has not delivered any judgment in favour of the applicants which could evidence its effectiveness (except Altan and Alpay case).

The Constitutional Court has been ineffective in addressing the gross violations of individual rights and freedoms which have taken place in Turkey since the coup attempt in July 2016. After the failed coup and the declaration of the state of emergency, many public officials who had been dismissed by emergency decree laws made applications for annulment of those dismissals to administrative and judicial bodies, the Constitutional Court, and the ECtHR.[6] In over 300 cases, the administrative courts rejected these applications, arguing lack of jurisdiction due to the nature of the emergency decree law, as did the Constitutional Court, and the Council of State.[7]

To date, the only evidence that the Constitutional Court can operate as an effective remedy is the cases involving journalists Mehmet Altan and Sahin Alpay. The Constitutional Court held on 11 January 2018 that the freedom of expression and liberty of the two journalists Mehmet Altan and Şahin Alpay had been violated. Upon this decision, Deputy Prime Minister and Government Spokesperson Bekir Bozdağ stated on his twitter account that the Constitutional Court had overstepped its boundary drawn up by the Constitution and legislation. Under pressure from the government, Alpay and Altan decisions were not implemented by Istanbul courts with almost the same reasoning used by the Government Spokesperson.[8] Despite the dictum that the Constitutional Court’s decisions are final and binding on the legislative, executive and judicial organs, the courts of first instance have not implemented the decision.

Upon another application by Journalist Şahin Alpay, the Constitutional Court delivered another decision on 16 March 2018 where it found Alpay’s rights were violated under the ECHR.[9] By contrast, the Istanbul court followed the ruling this time and issued Alpay’s conditional release. Surprisingly, nothing was heard from the executive on this occasion.

This development has been regarded by some as the government’s tactical move to avoid a possible ECtHR ruling on related pending cases to the effect that the Constitution Court is not an effective remedy.[10] Turkish human rights lawyer Kerem Altıparmak tweeted that the Turkish government’s move was intended to send a message to the ECtHR that the Constitutional Court is a viable domestic remedy.[11]

The ECtHR did soon after find breaches of Altan’s and Alpay’s rights specifically because of the failure of the lower courts to follow the Constitutional Court’s decision.[12] The European Court observed, in particular, that the reasons given by the Istanbul 13th Assize Court in rejecting the application for their release, following a ‘final’ and ‘binding’ judgment delivered by the supreme constitutional judicial authority, could not be regarded as satisfying the requirements of Article 5(1) of the ECHR.

Apart from these two cases which were decided on the same occasion, the Constitutional Court has been either inactive or delivered negative decisions in tens of thousands of individual applications involving post-coup attempt cases. Even in the individual application made by one of its former members, Alpaslan Altan, the Plenary Session of the Constitution Court found on 11 January 2018 (App. No. 2016/15586) his application as inadmissible.[13] The Constitutional Court refused Altan’s individual application on the ground that the alleged unlawfulness of his detention was manifestly ill-founded.

The Constitutional Court dismissed two of its members for alleged Gulenist links

In the aftermath of the attempted coup, on 4 August 2016, the Constitutional Court decided to dismiss two of its own members for their alleged Gulenist links.[14] This judgment was based on the power conferred on the Plenary of the Constitutional Court by Article 3(1) of Emergency Decree Law No. 667 to dismiss the Constitutional Court judges “who are considered to be a member of, or have relation, connection or contact with terrorist organizations or structure/entities”. The Constitutional Court stated in particular (see para 84 et seq) as follows:

“Establishing a link between members of the Constitutional Court and the terrorist organization […] was not necessarily sought for the application of the measure; it was considered sufficient to establish their link with ‘structures’, ‘organizations’ or ‘groups’ […]. The link in question does not necessarily have to be in the form of ‘membership of’ or ‘affiliation with’ a structure, organization or group; it is sufficient for it to be in the form of ‘connection’ or ‘contact’ in order for the measure of dismissal from profession to be applied. Lastly, establishing the evidentiary link between the members and the structures, organizations or groups […] is not sought in the Article [of Decree Law no. 667]. ‘Assessment’ of such link by the Plenary Session of the Constitutional Court is deemed sufficient. The assessment in question means a ‘conviction’ formed by the absolute majority of the Plenary Session. Undoubtedly, this conviction is solely an assessment on whether the person concerned is suitable to remain in the profession irrespective of whether there is criminal liability. Article 3 of the Decree Law prescribes no requirement to rely on a certain kind of evidence in order to reach this conviction. On the basis of which elements this conviction will be formed is a matter left to the discretion of the absolute majority of the Plenary Session. …”

As pointed out by Venice Commission[15], for the Turkish Constitutional Court, a decision to dismiss a judge on the basis of the extraordinary measures ordered by the emergency decree law does not require any particular evidence to be described and analysed in the judgment (para 136). In fact, the above-cited judgment does not refer to any evidence against the two judges concerned. To decide on the dismissal, it is sufficient for the majority of the Constitutional Court to be subjectively persuaded that a link between a member of the Constitutional Court and the Gulenist group exists.

On the existence of such a link, the Constitutional Court further relied on the information from social circles and the joint opinion of the members of the Constitutional Court which has evolved in due course (para 98). It must be noted that the Constitutional Court’s dismissal is not based on any misconduct or incompetence or any concrete evidence in relation to any criminal activity on the part of the dismissed members.

Venice Commission further notes an obvious paradox relating to the dismissal of its own members in connection with the constitutional and judicial review of the emergency measures. By dismissing two of its members on 4 August 2016, the Constitutional Court in essence confirmed the validity of Decree Law No. 667 which served as a legal basis for that very decision. Besides, other supreme courts and the Judicial Council (HSYK) dismissed thousands of judges using the extraordinary powers given by the same Emergency Decree Law No. 667. Venice Commission thus concludes that challenging the legitimacy of the process of mass dismissals of judges and prosecutors before those courts will have little chance of success, as the general legitimacy of the scheme of dismissals de facto cannot be put into question (para 186).

Further, the powers of the Constitutional Court are limited to those attributed competences granted by the Constitution (Article 148). The Constitutional Court is not a general court of law and thus not authorised to deal with the criminal prosecutions. As it is not a general court of law, it cannot decide whether or not a group is a terror organisation. Besides, the Constitutional Court delivered a judgment when deciding the dismissals without conducting any adjudicative criminal proceeding and without conforming with any sine qua non judicial guarantees such as adversarial proceedings, equality of arms etc. Without the recognition of the organisation as terror organisation by a res judicata decision of the criminal courts, the Plenary Session of the Constitutional Court (all the members of the Court) used the expression of “Fethullahist Terror Organisation/Parallel State Structure” (FETO/PDY) several dozen times without the use of the adjective “alleged”, as if the existence of such a “terror organisation was a given fact.

The first final and binding decision of criminal courts in relation to the existence of such a “terror organisation” is arguably the decision of the Assembly of Criminal Chambers of the Court of Cassation dated 26 September 2017[16]. Until the date of this decision, the Constitutional Court could not characterise a group or an organisation as a terror organisation as if it existed. Nor could it base its decision to dismiss two of its members on the basis of the link, contact or affiliation to such a group. One could argue that all the members of the Constitutional Court have displayed their bias and thus impartiality in relation to the applications involving the alleged Gulenists by joining the Constitutional Court’s dismissal decision on the ground of its stated legal reasoning.

The members continue to be exposed to threat of dismissal and criminal prosecution

Following the declaration of the state of emergency in the aftermath of the coup attempt in July 2016, Article 3 (1) of the Emergency Decree Law No. 667[17] provided the power of dismissal of judges including the Constitutional Court judges “who are considered to be a member of, or have relation, connection or contact with terrorist organizations or structure/entities”. Upon the end of the state of emergency, Turkey ratified an anti-terrorism law on 25 July 2018 which basically ensured that certain state of emergency powers continue.[18] This law covers a range of powers that previously only existed under the state of emergency. Article 26.A of the law in particular allows authorities to dismiss judges and all other public officials for the next three years if they are:

“found to have been members of or acted in union with or been in contact with terrorist organizations or structures, entities or groups that the National Security Council has decided are engaged in activities against national security.”

This discretionary power allows the judicial authorities to dismiss judges including the members of the Constitutional Court on the assumed connection or contact with terrorist organisations and structures or entities or groups which are considered as national threat. This very loose and arbitrary grounds of dismissal constitute a threat to the security of tenure for judges including the member of the Constitutional Court.

It has been already witnessed that the plenary session of the Constitutional Court had dismissed two of its members on similar arbitrary grounds. Thus, there is no guarantee that any individual member of the Constitutional Court is immune and guaranteed from such an abrupt end of tenure.

Further, under Articles 159/9 of the Constitution and Article 88/1 of the Law No. 2802, judges and prosecutors may only be arrested if there are circumstances which give rise to strong suspicion that they have committed a crime and they have been caught in flagrante delicto. Article 88/1 of the Law on Judges and Prosecutors No. 2802 states as follows: “Except for offences caught red handed (in flagrante delicto) which are subject to the jurisdiction of assize criminal courts, judges and prosecutors may not be arrested, neither their bodies nor their houses may be searched, nor they may be interrogated, for claims of having committed a crime.” Despite these guarantees, thousands of judges and prosecutors have been detained and arrested in the post-coup attempt prosecutions, despite the absence of flagrante delicto on the part of the members of the judiciary.[19]

Similarly, the two members of the Constitutional Court have been detained and arrested under the same alleged membership of a terror organisation despite the absence of procedural grounds for such investigatory measures. It may also be the case that any judge including members of the Constitutional Court are under the threat of a possible criminal prosecution on accusation of the membership of a terror organisation. There is no guarantee in principle under the current politicised operation of the judiciary that the members of the Constitutional Court are immune from such a prosecution. Therefore, the investigatory measures such as arrest and detention which are used in violation of Article 88/1 of the Law No. 2802 as well as the constitutional principles protecting the independence of the judiciary constitute sword of Damocles hanging above the members of the Constitutional Court.

Institutional independence of the Constitutional Court cannot be guaranteed

The 2017 Turkish constitutional referendum[20] made significant changes especially in relation to the procedure for the recruitment of the members of the Constitutional Court. The amended Article 146 now provides that the members of the Constitutional Court will be designated as follows: Five (5) members will be selected by the President from among the candidates designated by the Court of Cassation and Council of State. Three (3) members of the Constitutional Court will be selected by the Parliament which would be normally dominated by the political party chaired by the President. Three (3) members will be selected by the President again from among the candidates designated by the Board of Higher Education (YOK) comprising of members who are selected and appointed by the President. The remaining four (4) members will be directly appointed by the President from among certain listed professions by the Constitution.

Under the powers now held by President Erdogan since 2017, he has the ability to appoint 12 of the 15 Constitutional Court judges and so one could argue that the future independence of the Constitutional Court cannot be guaranteed. Not only in Turkey but also in any country even in those which have an established and well-functioning practice of the rule of law, it would be highly implausible to expect the Constitutional Court to effectively and impartially revise the constitutionality of the laws adapted by the Parliament dominated by the President’s party. The Constitutional Court with this composition cannot also be perceived to be impartial and independent when prosecuting the President in its capacity as the Supreme Court.

Conclusion

On October 2018, the European Court of Justice (ECJ) ordered Poland to “immediately suspend” the application of its national law which lowers the retirement age of Supreme Court judges.[21] The issue of debate here relates to the lowering of retirement age from to 65 followed by recruitment of further supreme court judges with a view by the Polish government to taking control of the judiciary. The Vice-President of the ECJ recalled that the judicial independence forms part of the essence of the fundamental right to a ‘fair trial’, which is of central importance as a guarantee for the protection of (EU) rights and a safeguard of the rule of law. She further observed that the infringement of a fundamental right such as the right to an independent court or tribunal is thus capable, because of the very nature of the infringed right, of giving rise in itself to serious and irreparable damage.

Whereas the interim decision delivered by the ECJ may have been given in the context of the European Union (EU) legal order, the significance and implications of the decision cannot be only limited to the EU jurisdictional sphere. There is, of course, some established division of labour between the jurisdiction of the ECJ and the ECtHR in human rights cases. However, it is also true that all the EU member states are also parties to the European Convention of Human Rights (ECHR) and their jurisdictions are part of the European human rights order. Therefore, one cannot escape from the general authority and implications of such a significant ruling which involves the issue of rule of law, the right to fair trial and independence of the judiciary.

The dramatic worsening of the independence, impartiality and effectiveness of the Turkish judiciary since the attempted coup in July 2016 speaks for volumes. Various bodies of the Council of Europe including Venice Commission, European Human Rights Commissioner and PACE have strongly criticised the destruction of the rule of law, fair trial and independence of the Turkish judiciary.[22] The reports of the organs of the Council of Europe are full of textbook examples of how such basic legal norms and institutions have been dismantled in Turkey. Seeking to entreat the Turkish Constitutional Court still as an effective remedy in view of many ‘chilling effects” over the Turkish judiciary and the Constitutional Court is an illusion from which the ECtHR must wake up in order to lead the way in some test cases.

[1] https://platformpj.org/wp-content/uploads/non-independence-1.pdf

[2] See http://www.hurriyetdailynews.com/turkish-constitutional-court-rejects-chps-appeal-to-annul-decree-laws-104889; for the Constitutional Court decisions, see 2016/166 E., 2016/159 K; 2016/167 E., 2016/160 K., 12.10.2016 T. RG: 04.11.2016 – 29878; for the Press Release of the Constitutional Court, see http://www.anayasa.gov.tr/icsayfalar/basin/kararlarailiskinbasinduyurulari/genelkurul/detay/21.html

[3] See Constitutional Court 10 January 1991, Registry No. 1990/25, Decision 1991/1; Constitutional Court 3 July 1991, Registry n° 1191/6, Decision No. 1991/20, see A.R Coban, “Comparing Constitutional Adjudication. A Summer School on Comparative Interpretation of European Constitutional Jurisprudence. 4th Edition – 2009. States of emergency and fundamental rights. Turkey. Fundamental Rights during States of emergency in Turkey”, p. 9.

[4] See https://platformpj.org/constitution-newly-emerged-authoritarian-regime-decree-laws-state-emergency/

[5] Five Emergence Decree Laws had been made permanent laws in the course of the state of emergency before and yet further 25 Emergency Decree Laws were also promulgated in March 2018 with a view to make them permanent law before the ending of the state of emergency. http://www.resmigazete.gov.tr/main.aspx?home=http://www.resmigazete.gov.tr/eskiler/2018/03/20180308m1.htm&main=http://www.resmigazete.gov.tr/eskiler/2018/03/20180308m1.htm

[6] K. Altiparmak, Is the State of Emergency Inquiry Commission, Established by Emergency Decree 685, an Effective Remedy? Human Rights Joint Platform (IHOP) (February 2017) p. 1 < http://www.ihop.org.tr/en/wp-content/uploads/2017/03/IS-THE-STATE-OF-EMERGENCY-INQUIRY-COMMISSION.pdf, >.

[7] https://www.ibanet.org/Article/NewDetail.aspx?ArticleUid=11829b68-66ce-42da-8943-1170da0db2a9, para. 40.

[8] http://www.hurriyetdailynews.com/osce-calls-on-turkey-to-release-two-arrested-journalists-over-high-court-ruling-125910

[9] https://m.bianet.org/english/law/195222-constitutional-court-rules-second-time-alpay-s-rights-violated

[10] https://www.g4media.ro/top-european-courts-life-kiss-to-turkeys-ill-judiciary.html

[11] https://www.turkishminute.com/2018/03/17/lawyer-altiparmak-alpay-decision-tactical-move-to-avoid-ecthr-rulings/

[12] See judgements in Altan v Turkey (application no. 13237/17) and Alpay v Turkey (application no. 16538/17).

[13] http://www.anayasa.gov.tr/icsayfalar/basin/kararlarailiskinbasinduyurulari/bireyselbasvuru/detay/152.html

[14] Case No. 2016/6 (Miscellaneous), Decision No. 2016/12, Date 4/8/2016;

http://www.kararlaryeni.anayasa.gov.tr/Karar/Content/717f7c20-b696-4379-84f6-dfb568f8844a?excludeGerekce=False&wordsOnly=False; see Olcay, T. (2017) “Firing Bench-mates: The Human Rights and Rule of Law Implications of the Turkish Constitutional Court’s Dismissal of Its Two Members”, European Constitutional Law Review, 13(3): 568-581.

[15] Venice Commission Turkey Opinion on the Provisions of the Emergency Decree Law No. 674 of 1 September 2016, Adopted by the Commission at its 112^th Plenary Session (Venice, 6-7 October 2017) https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2017)021-e

[16] Case No. 2017/16.MD-956; Decision No. 2017/370; Date. 26.09.2017; for the text of the decision, see https://www.memurlar.net/haber/712749/yargitay-ceza-genel-kurulu-nun-bylock-ve-feto-uyeligine-dair-kararinin-tam-metni.html

[17] http://www.resmigazete.gov.tr/eskiler/2016/07/20160723-8.htm

[18] Law No. 7145 of 25 July 2018 regarding amendments to some laws and decrees www.tbmm.gov.tr/kanunlar/k7145.html

[19] See https://platformpj.org/arrests-judges-prosecutors-turkey-violation-principle-flagrante-delicto/

[20] https://platformpj.org/wp-content/uploads/An-All-Powerful-President1.pdf

[21] https://www.bbc.co.uk/news/world-europe-45917830, 19 October 2018; also see Court of Justice of the European Union, PRESS RELEASE No 159/18 Luxembourg, 19 October 2018 Order of the Vice-President of the Court in Case C-619/18 R Commission v Poland; https://curia.europa.eu/jcms/upload/docs/application/pdf/2018-10/cp180159en.pdf

[22] https://platformpj.org/wp-content/uploads/COUNCIL-OF-EUROPE%E2%80%99S-PERSPECTIVES-ON-THE-RULE-OF-LAW-AND-HUMAN-RIGHTS-IN-TURKEY-IN-THE-AFTERMATH-OF-15-JULY-2016-COUP-ATTEMPT.pdf ]]> 3628 https://platformpj.org/amnesty-international-decries-turkeys-state-of-emergency-commission-as-ineffective/ Thu, 25 Oct 2018 05:10:45 +0000 https://platformpj.org/?p=3592

About The Author

Leighann Spencer

Leighann Spencer is a criminologist, writer, and activist. Her interests include vigilantism, identity, conflict, and state accountability in Africa and Turkey. She has written extensively on these topics for the likes of Vocal Europe, African Arguments, and The Conversation. She previously worked on anti-vigilantism initiatives and police accountability with a NGO in Cape Town, South Africa, before undertaking a solo study on vigilantism there. She obtained degrees in criminology and psychology at Deakin University and is now a PhD candidate at Charles Sturt University, where she is researching the role of territory and identity in Nigerian vigilantism and state complicity.

For anyone, getting dismissed from your job can be a terrible experience. You lose your income, your benefits, your sense of purpose. It can cause relationships to suffer, and it might take some time before a new employment opportunity arises. Now imagine that you cannot find new employment as your dismissal was in fact legislated by the government; you have been officially, irrefutably, blacklisted. This is the situation in post-coup Turkey, where a two-year state of emergency allowed the government to impose dismissals across the public sector. Approximately 130,000 have been dismissed, including doctors, teachers, academics, media workers, government officials, police and military personal. A new Amnesty International Report Purged Beyond Return examines the devastating effects and the lack of effective appeal for these dismissed public sector workers.

The report confirms that the dismissal decrees – openly published in the governmental gazette, acting as a blacklist – are completely arbitrary. The justifications given were generic: that those dismissed “…had links to, were part of, were connected to, or in communication with…” proscribed terrorist organisations such as FETO or the PKK. Henceforth bared from the public sector for life, the majority of those affected have been unable to find another job. Those who have are no longer in their area of passion. An academic told Amnesty International: “I was prevented from pursuing my academic career; I have had to go work on construction sites because nobody else would give me a job”.

Discrimination is not limited to prospective employers. As one dismissed teacher voiced, “People look at you differently because of the dismissals. People are reluctant to even say hello to you… you are labelled as a terrorist and left completely isolated”. Some may believe the government line, but many fear of similarly being accused of terrorism by affiliation. Some of those dismissed have even noted reprisals such as being unable to find housing after being blacklisted. They have also had their passports cancelled, unable to seek a new life abroad.

Despite all this, for six months after the coup-attempt and imposition of the state of emergency, the thousands of dismissed workers had no domestic recourse for appeal. Indeed, the European Court of Human Rights received a flood of applications. Then in January 2017, after considerable pressure and a meeting with the Secretary-General of the Council of Europe, Turkey established the State of Emergency Commission (SoE Commission). This was mandated to hear appeals by those affected by the emergency decrees, namely those dismissed. However, as a substantive portion of Amnesty International’s report reveals, this Commission is by no means an effective remedy.

First and foremost, the SoE Commission is not independent from the state. Consisting of seven members, five are appointed by the President, Minister of Justice, and the Minister of the Interior. The remaining two are appointed by the High Council of Judges and Prosecutors, which in turn has its members appointed by the President. Worryingly, SoE Commission members can also be dismissed by the government. They are, in effect, pressured into making decisions favourable to the ruling party. This is similar to the current-day Turkish judicial system generally, whereby judges are promoted, demoted, or even arrested based on their decisions.

Then there is the fact that the SOE Commission is not bound to deadlines, leaving applicants waiting for unreasonable amounts of time for a decision. The completed cases reviewed by Amnesty International ranged from four to ten months of uncertainty. And some dismissed workers were yet to receive a decision on applications submitted over a year ago. In all, as of 5 October 2018 – 21 months after the Commission was established – only 36,000 out of 125,000 applications had been reviewed. Such lengthy waiting periods, within the circumstances of no income, benefits or meaningful work, “underline the ineffectiveness of the appeal”.

These decisions are, moreover, made without a proper hearing. Those dismissed are not permitted to give testimony, call on witnesses, or even see the allegations or evidence against them. Rather, the cases are decided by a paper review, which is hardly a fair judicial process. The defendant is non-attendant, having instead submitted a written appeal guessing what the allegations might be. After analysing finalised SoE Commission decisions, Amnesty International found that they “lack merit and foregrounding in law”. So-called evidence included minor interactions with banks, trade unions, media outlets, civil society organisations and schools perceived to be associated with proscribed terrorist groups. This is even the case when the interactions occurred retrospective to the group being outlawed.

These arbitrary decisions on arbitrary dismissals can be appealed through the original judicial system. However, this gives rise to further problems. Court proceedings are costly, and these individuals are likely to have no income. And a lengthy SoE Commission waiting period is now extended to years of wondering whether one will have their name cleared. The judicial system itself has been criticised for its lack of independence. Then, it is difficult to launch an appeal when, aside from vague evidence about interactions and the like, the SoE Commission decisions lack any substance to refute. This is all the more concerning when one considers the statistics; of the 36,000 cases finalised by the Commission, just 6.76% resulted in a positive outcome. None have been finalised by the ordinary courts.

In the event of the rare positive decision by the SoE Commission, this does not necessarily amount to justice, i.e. being reinstated to one’s original position with sufficient recompense. For example, as outlined in Amnesty International’s report, police and military personal may be assigned to research centres, and academics cannot be reinstated to the same institution as before. Compensation for the financial and social benefits lost during the period of dismissal may be granted. However, this does not include reparation for other financial loss such as legal fees, or harms suffered such as to mental health. Furthermore, those dismissed are legally prevented from seeking any further compensation from outside the Commission.

Amnesty International concludes that the SoE Commission, rather than being an effective mode of appeal, “is in effect a rubber stamp for the government’s arbitrary dismissals.” It does not meet the requirements set out in domestic law, such as the Law on Public Servants or Turkish Labour Law. Nor does it meet the standards of international law. This includes the International Covenant on Civil and Political Rights, the International Labour Organization Convention, and the European Convention on Human Rights. The European Court of Human Rights, however, still considers the Commission an effective domestic avenue that must be pursued before they will hear an application. Amnesty International recommends that this position be reviewed.

Despite the State of Emergency ceasing on 18 July 2018, a law was passed on 25 July to allow summary dismissals of public sector workers with ‘links to terrorist organisations’; essentially equivalent to the previous emergency decrees. This will be in place for another three years. Amnesty International urges the Turkish government to repeal this law and reinstate all public-sector workers dismissed by decree. This should be to their original position with full compensation. If someone is reasonably suspected of misconduct or a criminal offence, they should have a regular disciplinary hearing with procedural safeguards. If the Turkish government fails to implement these recommendations, Amnesty urges the international community to intervene.

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This analysis elaborates in some detail on the new ‘a la Turca’ presidential system introduced by the new constitutional arrangements, analysing the detrimental aspects of the new system in relation to the principle of separation of powers as well as to the prerequisites of the checks and balances of any democratic governmental system.  Here, the effects of the new constitutional arrangements are discussed from the perspectives of three classical powers: the executive, the legislature and the judiciary. The concluding part also provides a summary analysis of the new presidential system in view of the results of the presidential and parliamentary election held on 24 June 2018.

Download the full text.

]]> 3417 https://platformpj.org/report-violations-against-childrens-rights-in-turkey/ Fri, 13 Apr 2018 08:10:16 +0000 https://platformpj.org/?p=3242 Journalist and law expert Leighann spencer has written a report for the Platfrom for Peace & Justice (PPJ) entitled “Violations Against Children’s Rights in Turkey”. The report highlights violations of fundemantal rights  of children occuring in Turkey namely imprisoned children under the age of six, abuse of the refugee children and child marriages.

There are many children’s rights violations in current-day Turkey. Pregnant and new mothers are being illegally detained, with 700 children under the age of six now in jail. Others under the age of eighteen face long periods of pre-trial detention and torture. Syrian child refugees, an at-risk population, are being subjected to sexual abuse, child labour, and other rights abuses. Child marriage remains a large concern, leading to further issues such as domestic violence, health issues, and impediments to education and employment. Nevertheless, it is encouraged by authorities. The Turkish government has also shown an unwillingness to address children in prison, and has not done enough to protect Syrian child refugees. This is by no means an exhaustive account of violations against children’s rights in Turkey, but are considered the most pressing issues which must be addressed immediately.

Download “Violations Against Children’s Rights”

Platform for Peace & Justice has released its latest report entitled “Cancellation of Turkish Passports and Prevention of the Freedom of Movement”. The report which consists of   17 pages analyses the legal ground for passport cancellations according to domestic and international laws referring to Turkish Constitution and the European Convention on the Human Rights. Shedding light on the abusive use of the cancellation of passports by the current Turkish government, the report illustrates that the long-lasting State of Emergency regime is established deliberately to condemn dissidents to civil death not only by dismissing and arresting them but also destroying their hope and abilities to start new lives elsewhere.

The report also examines cases in which the Red Notice of INTERPOL is also abused by the Turkish government to harras dissidents abroad.

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