TURKEY OPINION ON EMERGENCY DECREE LAWS NOS. 667

This document will not be distributed at the meeting. Please bring this copy.

www.venice.coe.int

Strasbourg, 12 December 2016

Opinion No. 865 / 2016

CDL-AD(2016)037

Engl.only

EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW

(VENICE COMMISSION)

TURKEY

OPINION

ON EMERGENCY DECREE LAWS

NOS. 667-676

ADOPTED FOLLOWING THE FAILED COUP OF 15 JULY 2016

Adopted by the Venice Commission

at its 109

Plenary Session

(Venice, 9-10 December 2016)

On the basis of comments by:

Ms Claire BAZY MALAURIE (Member, France)

Ms Sarah CLEVELAND (Member, United States)

Ms Regina KIENER (Member, Switzerland)

Ms Hanna SUCHOCKA (Honorary President

of the Venice Commission)

Mr Kaarlo TUORI (Member, Finland)

Mr Jan VELAERS (Member, Belgium)

CDL-AD(2016)037

- 2 -

TABLE OF CONTENTS

I. INTRODUCTION 4

II. FACTUAL BACKGROUND 4

III. ANALYSIS OF THE EMERGENCY MEASURES 6

A. Normative framework 6

1. National legal framework 6

2. International legal framework 8

B. Existence of “a public emergency threatening the life of the nation” 9

1. Original decision to declare the state of emergency 9

2. Prolongation of the state of emergency 10

C. Compliance with the procedure 12

1. Declaration of the state of emergency and its approval by Parliament 12

2. Enactment of the decree laws by the Government and their approval by Parliament 12

3. Notifications of derogations 14

D. General overview of the emergency measures 15

1. Scope of the emergency measures ratione personae and ratione temporis 16

2. Compliance with the Law on the State of Emergency of 1983 17

3. Permanent character of some of the emergency measures 19

a. General principles 19

a. Individual measures transcending the period of the state of emergency 19

b. Structural changes introduced by the emergency decree laws 20

4. Ad hominem emergency legislation 21

5. Waiver of liability 22

E. Specific emergency measures 23

1. Dismissals of public servants and associated measures 23

a. Description of measures 23

b. Large margin of appreciation accorded to the State in regulating public service 24

c. Human rights at stake 25

d. The moment when collaboration with the Gülenist network became incompatible with

the public service 27

e. Connections to the Gülenist network as a pre-condition for dismissal 28

f. Lack of reasoned and individualized decisions on dismissals 29

g. Lack of administrative due process before dismissals 31

h. Associated measures (evictions, withdrawal of passports, access to communications) 31

i. Dismissals of judges 32

2. Measures related to criminal proceedings 33

a. Description of measures 33

b. Limits to derogation from the States’ procedural human rights obligations during the

times of emergency 34

c. Measures related to arrest and detention in custody 36

d. The right to be effectively defended by a lawyer 37

e. Grounds for bringing suspects to criminal liability 38

3. Allegations of ill-treatment and torture 38

4. Dissolution of private associations and companies and confiscation of their assets 39

CDL-AD(2016)037

- 3 -

F. Constitutional review 40

1. Constitutional review in abstracto 40

a. Constitutional review of the decree laws before their approval by Parliament 40

b. Constitutional review of the decree laws after their approval by Parliament 42

2. Constitutional review in concreto 42

a. Individual complaints introduced before the approval of the decree laws by Parliament 42

b. Individual complaints introduced after the approval of the decree laws by Parliament 44

G. Judicial review 44

H. Other remedies 46

I. Special ad hoc body for the review of the emergency measures 47

IV. CONCLUSIONS 48

CDL-AD(2016)037

- 4 -

I. Introduction

1. By letter of 27 September 2016, the Chair of the Monitoring Committee of the Parliamentary

Assembly of the Council of Europe (PACE) requested the opinion of the Venice Commission on

the overall compatibility of the implementation of the state of emergency in Turkey, in particular

all subsequent decree laws, with Council of Europe standards.

2. Ms Claire Bazy Malaurie, Ms Sarah Cleveland, Ms Regina Kiener, Ms Hanna Suchocka,

Mr Kaarlo Tuori, and Mr Jan Velaers were invited to act as rapporteurs for this opinion.

On 3 and 4 November 2016, a delegation of the Venice Commission visited Ankara and held

meetings with the State authorities, politicians, lawyers and NGO representatives. The Venice

Commission expresses its gratitude to the Ministry of Foreign Affairs and the Ministry of Justice

of Turkey for the excellent organisation of the visit.

3. The present opinion was prepared on the basis of the comments submitted by the

rapporteurs based on the English and French translations of the emergency decree laws (see

CDL-REF(2016)061 and CDL-REF(2016)061add) provided by the Turkish authorities to the

Council of Europe together with the derogation letters (for more details on the derogation

process, see below). This translation may not always accurately reflect the original version in

Turkish on all points; therefore, certain issues raised may be due to problems of translation.

4. The Venice Commission also took note of the written Memorandum prepared by Turkish

authorities for the visit of the rapporteurs to Ankara, together with the additional documents

appended to it (hereinafter – the Government’s Memorandum, see CDL-REF(2016)067).

5. The present opinion was adopted by the Venice Commission at its 109

Plenary Session, in

Venice (9-10 December 2016).

II. Factual background

6. On 15 July 2016 a group of officers within the Turkish armed forces tried to seize power in

the country and overthrow President Erdoğan. The conspirators bombed the Parliament,

attacked other public buildings, blocked roads and bridges in major towns, and seized a TV

station. They did not hesitate to use heavy weaponry to suppress the legitimate resistance of

those State officials who remained loyal to the Government. Hundreds of civilians were injured

or killed. However, the Turkish armed forces and the population resisted, and the coup failed.

The conspirators within the Army, police and other armed forces were disarmed and arrested.

7. The Venice Commission strongly and resolutely condemns, once again, the ruthlessness of

conspirators, and expresses solidarity with the Turkish society which stood united against them.

The official name of the Venice Commission is the “European Commission of Democracy

through Law”. A military coup against a democratic government, by definition, denies the values

of democracy and the rule of law. Therefore, the Venice Commission will always oppose those

who try to overthrow a democratic government by force.

8. On 20 July 2016 the Government declared a state of emergency for three months. Following

the approval of that declaration by Parliament, the Government started to legislate through

emergency decree laws. The first was Decree Law no. 667, which entered into force on 23 July

2016. In the following months several other decree laws were enacted. On 5 October 2016 the

Government extended the state of emergency for a three further months, effective as of

19 October. The prolongation was approved by Parliament on 11 October 2016.

9. So far, twelve emergency decree laws have been enacted (nos. 667 – 678).

The Venice

Commission has been informed that two new emergency decree laws were enacted on

22 November 2016. However, since the last two decree laws have not been made available in

CDL-AD(2016)037

- 5 -

English and have not been officially notified to the Council of Europe, the analysis below will

cover the first ten decree laws. They provide for a comprehensive purging from the State

apparatus of the persons allegedly linked to the conspiracy. The decree laws also simplify the

rules of criminal investigation for terrorist-related activities. During the state of emergency, over

100.000 civil servants, military officers, judges, teachers and academics have been dismissed

from their jobs. Tens of thousands have been arrested and prosecuted. Private institutions

allegedly linked to the conspiracy have been closed down and their property confiscated.

10. According to Turkish official sources, there is strong evidence that the conspiracy has been

organised by the supporters of Mr Fethullah Gülen, an Islamic cleric living in the US. In the

Turkish official documents the Gülenist network is denoted as “FETÖ/PDY” (“Fethullah Terror

Organization/Parallel State Structures”).

11. Originally, the Gülenist network consisted of a large number of educational institutions,

charity foundations, business entities, etc. According to the Government, in addition to being

largely present in the public education, business sphere and in the third sector, the Gülenists

also started secretly penetrating into State institutions.

12. According to the Turkish authorities, in December 2013 the Gülenists tried to destabilize

the AKP Government by accusing some of its members of corruption. Now this incident is

considered by the Government as a first coup attempt by the Gülenists. Following the events of

December 2013 the Government started closing down some key entities of the Gülenist

network (such as the Asya bank and the Zaman newspaper).

13. In addition, a large number of civil servants, military officers and judges suspected of

Gülenist sympathies were subjected to disciplinary investigations, or transferred to other places

of service. However, these measures were of a limited effect, allegedly because of hidden

obstruction from the Gülenists who by then had already infiltrated various State institutions.

14. The official account, according to the Turkish authorities, is corroborated by the testimony

of some of the plotters obtained after their arrests, and by various circumstantial evidence

which points at Mr Gülen and his supporters. The Venice Commission acknowledges that a

very large segment of the Turkish society shares the view of the Turkish authorities on the role

of the Gülenist movement. Mr Gülen himself instead denies playing any role in the coup.

15. Most of the trials related to the failed coup are still underway. The Venice Commission is

not a court and has neither the mandate nor the resources to resolve such complex factual

controversies as those appearing in casu. Individual cases related to the post-coup measures

are now pending before the Constitutional Court of Turkey, the European Court of Human

Rights (ECtHR) and other authoritative international judicial or quasi-judicial bodies. Nothing in

the present opinion should be seen as prejudging any conclusions on the facts which those

courts or other authoritative judicial bodies might reach in individual cases.

16. Without hampering the right of every individual to be presumed innocent until proven guilty

by a court, the Venice Commission takes into account certain factual allegations made by the

Turkish authorities, for the purpose of building its legal analysis. The first allegation is that the

failed coup was prepared and implemented by a coordinated group composed at least partly of

supporters of Mr Gülen within the army and other State institutions. The Turkish authorities

called the Gülenist network a “terrorist organisation”; the Organisation of Islamic Cooperation is

of the same opinion.

There are different definitions of “terrorism”. Regardless of the propriety of

these characterisations, those who were directly involved in the planning and implementation of

the coup definitely formed a criminal organisation.

See http://www.dailysabah.com/war-on-terror/2016/10/19/organization-of-islamic-cooperation-declares-feto-a-

terrorist-group

CDL-AD(2016)037

- 6 -

17. The second factual allegation is that, even before the coup, a number of members of the

Gülenist network were involved in certain illegal acts, which arguably qualify as crimes under

the Turkish Criminal Code. Those acts allegedly consisted of manipulations of the entry exams

to various State institutions, collection of a de facto compulsory “tax”, under the guise of

benevolent donations supposed to finance charity projects of the Gülenist network, fabrication

of incriminating evidence against political opponents, etc. The best known examples of such

manipulations, according to the Turkish authorities, are the so-called Ergenekon and Balyoz

trials, in which a large number of persons were convicted on the basis of at least partially

fabricated evidence. However, this does not mean that everybody who has ever had contacts

with the organisations or projects associated with Mr Gülen may be automatically considered as

aiding and abetting the commission of those crimes.

III. Analysis of the emergency measures

18. From the outset the Venice Commission emphasises that not only are certain facts related

to the situation in Turkey in dispute, but the legal aspects of the emergency regime in Turkey

are also extremely complex and subject to different interpretations. It is impossible, in a single

opinion and in such a short time, to cover all legal questions which arise from the post-coup

measures taken by the Turkish Government. The Venice Commission will, therefore,

concentrate on several selected topics, which appear to be of primary importance. This opinion

should not be seen as a comprehensive analysis of the emergency regime.

19. Furthermore, on 9 November 2016, the Committee on Political Affairs and Democracy of

the PACE requested an opinion from the Venice Commission on the measures provided in the

recent emergency decree laws in Turkey with respect to freedom of the media. This matter

requires a separate examination, and will not, therefore, be addressed in the present opinion.

A. Normative framework

20. Before entering into the analysis of the emergency measures, the Venice Commission will

outline the existing normative framework of the state of emergency in Turkey and

internationally.

1. National legal framework

21. Article 120 of the Constitution permits the Government to declare a state of emergency in

the event “of widespread acts of violence aimed at the destruction of the free democratic order

established by the Constitution or of fundamental rights and freedoms […]”. The decision on the

state of emergency under Article 120 shall be published and shall be submitted immediately to

the Turkish Grand National Assembly for approval. Such a regime can be introduced only for a

limited period of time.

22. Under Article 91 of the Turkish Constitution, Parliament ordinarily may authorise the

Government to issue decree laws on specified issues. During the state of emergency regime

the Government may legislate by emergency decree laws without such prior authorisation,

simply on the basis of a declaration of the state of emergency, approved by

Parliament (Article 121 § 3 of the Constitution). Such emergency decree laws should concern

“matters necessitated by the state of emergency” and are to be submitted by the Government

The Special Rapporteur of the UN on human rights and states of exception formulated this requirement as a

“legality” principle: the restrictions on human rights and fundamental freedoms during a state of emergency must

remain within the limits set by the national and international law instruments. See the Final Report of the Special

Rapporteur of the UN on human rights and states of exception, E/CN.4/Sub.2/1997/19, http://daccess-

ods.un.org/access.nsf/Get?Open&DS=E/CN.4/Sub.2/1997/19/Add.1&Lang=F

CDL-AD(2016)037

- 7 -

to Parliament for prompt ex post approval (“shall be submitted to the Turkish Grand National

Assembly on the same day for approval”); the time-limits and procedure for their approval are

indicated in the Rules of Procedure of Parliament (ibid.).

23. The limits to the Government’s emergency powers are set out in Article 15 of the

Constitution. It allows for “partial or total” suspension, “during the state of emergency”, of the

exercise of fundamental rights and freedoms, but only “to the extent required by the exigencies

of the situation” and provided that “obligations under international law are not violated”.

Article 15 also contains a list of non-derogable rights, such as, for example, the right to life or

physical integrity.

24. In addition, Article 121 § 2 of the Turkish Constitution stipulates as follows:

“The financial, material, and labor obligations which are to be imposed on citizens in the

event of the declaration of state of emergency under Article 119 [which regulates natural

disasters and the like], and, applicable according to the nature of each kind of state of

emergency, the procedures as to how fundamental rights and freedoms shall be

restricted or suspended in line with the principles of Article 15 [which speaks about

limitations on human rights in the situation of emergency, irrespective of the type of

emergency], how and by what means the measures necessitated by the situation shall be

taken, what sort of powers shall be conferred on public servants, what kind of changes

shall be made in the status of officials, and the procedure governing emergency rule shall

be regulated by the Law on State of Emergency”.

25. The Law on State of Emergency was adopted in 1983; a direct reference to it in the

Constitution implies that any measure introduced by an emergency decree law should be in

compliance with the 1983 Law, which is defined as setting a legal framework for any

subsequent emergency decree laws. The Venice Commission stresses that the 1983 Law is

referred to as a legal framework for the current emergency situation in the decree laws (see, for

example, preambles to Decree Laws nos. 667 and 668), as well as in the derogation letters.

appears, therefore, that any emergency decree law, adopted under Article 121 § 3 of the

Constitution, should be compatible with the 1983 Law, as amended.

26. In other words, Articles 15, 120 and 121 of the Constitution set the following limits to the

Government’s emergency powers:

 the Government may receive and use emergency powers only in the event “of

widespread acts of violence aimed at the destruction of the free democratic order

established by the Constitution or of fundamental rights and freedoms”;

 the Government should follow a particular procedure for declaring the state of

emergency and enacting decree laws (including prompt approval by the Grand National

Assembly);

 certain basic rights should not be affected;

 limitations to other rights should be necessary and proportionate

(“to the extent

required […]”) and be temporary in character

(“during the state of emergency”);

 the international obligations of the State should be respected;

 the Government should act in compliance with the law on the state of emergency.

Decree laws differ “from ordinary ordinances in the following ways: (a) they do not require a prior enabling act;

(b) they are issued by the Council of Ministers presided over by the President of the Republic; (c) they can also

regulate, unlike ordinary ordinances, such areas as basic rights, individual rights, and political rights.”

(E. Ozbudun, The Constitutional system of Turkey, 1876 to the Present, Palgrave, Macmillan, 2011, p. 70-71)

See https://treaties.un.org/doc/Publication/CN/2016/CN.580.2016-Eng.pdf

Depending on the jurisdiction, “necessity” and “proportionality” are sometimes seen as essentially the same

thing, or as two prongs of a single test.

Which may be seen as an element of proportionality ratione temporis.

CDL-AD(2016)037

- 8 -

27. Thus, the Constitution explicitly limits the Government’s power to derogate from

fundamental rights and freedoms in time of emergency. In addition, certain implicit limitations on

the Government’s emergency powers may be derived from the Constitution, insofar as the

system of checks and balances is concerned.

28. In particular, Article 4 of the Turkish Constitution contains irrevocable provisions, which

cannot be modified by constitutional amendments. They include, inter alia, provisions of

Article 1 of the Constitution establishing the form of State as a Republic and the provisions in

Article 2 on the characteristics of the Republic. Article 2 refers to Turkey as a “democratic […]

State governed by the rule of law” and “based on the fundamental tenets set forth in the

Preamble”. The Preamble, in turn, refers, inter alia, to the concepts of “liberal democracy”, the

principle of separation of powers, and the principle of the supremacy of the Constitution and the

law.

29. The Turkish Constitution does not expressly say that those irrevocable principles are also

non-derogable under the state of emergency, but this is self-evident. “During the state of

emergency, state institutions function normally, although the distribution of powers is modified

in favour of the executive”.

The Constitution may give to the Government very large

emergency powers. However, those powers cannot be limitless - otherwise the Constitution

would contain a mechanism of self-destruction, and the regime of the separation of powers

would be replaced with the unfettered rule of the executive. Any re-distribution of powers during

the emergency regime should be limited to what is provided explicitly by the constitutional and

legal provisions on the state of emergency and what is necessitated by the “exigencies of the

situation”. “In fact, most modern constitutions explicitly state that the basic structural features of

government remain intact even in an emergency”(italics added).

New permanent powers of the

Government, or new regulations permanently altering the competencies, composition or

principles of the functioning of other constituent bodies should not emanate from the decree

laws: they should be expressly authorised by the Constitution.

2. International legal framework

30. Derogation from treaty-based human rights obligations is provided by Article 15 of the

European Convention on Human Rights (ECHR) and by Article 4 of the International Covenant

on Civil and Political Rights (ICCPR), which are expressed in very similar terms – they permit

derogation in time of public emergency which threatens the life of the nation. Turkey is a party

to both treaties.

31. On 21 July 2016 the Secretary General of the Council of Europe was informed by the

Turkish authorities in accordance with Article 15 of the ECHR that the post-coup measures may

involve derogation from the obligations under the ECHR. In the following weeks several other

such notifications followed, after the enactment of the subsequent emergency decree laws.

32. On 21 July 2016 the Secretary General of the United Nations was also notified, under

Article 4 of the ICCPR, about the derogation by the Turkey from the rights provided Articles 2/3,

9, 10, 12, 13, 14, 17, 19, 21, 22, 25, 26 and 27 of the ICCPR.

33. The mechanism of derogation allows the Turkish authorities to temporarily reduce the

scope of its obligations under treaty-based human rights instruments. However, there are

certain conditions for the exercise of the derogation powers under the ECHR and the ICCPR:

CDL-AD(2016)006, Opinion on the Draft Constitutional Law on “Protection of the Nation” of France, § 64

See examples given by Prof. E. Özbudun, Emergency Powers and Judicial Review, in “Human Rights and the

functioning of democratic institutions in emergency situations”, proceedings of the UniDem, materials of the

Seminar organized in Wroclaw (Poland) on 3-5 October 1996, p. 15.

This list should not be seen as exhaustive; it focuses on such elements which the Venice Commission sees as

important and pertinent in the particular situation under examination

CDL-AD(2016)037

- 9 -

 the right to derogate can be invoked only in emergency situations (time of war or other

public emergency threatening the life of the nation);

 the State availing itself of this right of derogation has to comply with certain procedural

conditions (see Article 15 § 3 of the ECHR, Article 4 § 3 of the ICCPR),

like the

proclamation and notification requirements, as well as its national law;

 the State may take measures derogating from its obligations “only to the extent strictly

required by the exigencies of the situation”, both with respect to scope and duration,

and the necessity and proportionality of those measures are subject to supervision by

the European Court of Human Rights (ECtHR) and monitoring by the Human Rights

Committee (HRC);

 certain rights do not allow any derogation;

 the derogation may not be discriminatory or inconsistent with the State’s other

obligations under international law;

 the predominant objective must be the restoration of a state of normalcy where full

respect for human rights can again be secured.

34. The reference to “other obligations” under international law in the national Constitution and

in the ECHR and the ICCPR means that the list of non-derogable rights includes those listed in

both conventions. Furthermore, the State must comply with other international obligations

(which is also expressly stated in the text of Article 15 of the Turkish Constitution), whether

based on treaty or on general international law, some of which are non-derogable by definition.

Thus, the list of non-derogable rights is larger than the two express lists contained in the ECHR

and the ICCPR. In particular, according to the UN Human Rights Committee, States Parties to

the ICCPR may under no circumstance invoke Article 4 of the Covenant as a justification for

acting in violation of humanitarian law or peremptory norms of international law and should take

into consideration the developments of human-rights standards. The Human Rights Committee

also has recognised that in order to protect non-derogable rights, certain aspects of other

human rights must be non-derogable, including the prohibition against arbitrary deprivations of

liberty and unacknowledged detention, and fundamental principles of fair trial, including the

presumption of innocence and the right to have a court promptly determine the lawfulness of

detention.

Other treaties to which Turkey is a party (namely those concerning social and

economic rights) also set a normative framework for the emergency measures adopted by the

Government.

B. Existence of “a public emergency threatening the life of the nation”

1. Original decision to declare the state of emergency

35. The Venice Commission reiterates that, as a precondition for any derogation under

Article 15 § 1 of the ECHR and Article 4 § 1 of the ICCPR, the public emergency must be such

as to “threaten the life of the nation”. Article 120 of the Turkish Constitution speaks of

“widespread acts of violence aimed at the destruction of the free democratic order established

by the Constitution or of fundamental rights and freedoms, or serious deterioration of public

order because of acts of violence” which may lead to the declaration of a state of emergency.

Article 15 § 3 at the ECHR requires a State availing itself of the right of derogation to keep the Secretary

General of the Council of Europe fully informed of the measures which it has taken and the reasons for them.

Article 4 § 3 of the ICCPR imposes an obligation to inform the Secretary General of the United Nations “of the

provisions from which it has derogated and of the reasons by which it was actuated”.

In the Rule of Law Checklist the Venice Commission defined the notion “proportionate” as limited to the extent

strictly required by the “exigencies of the situation”, in circumstance, scope and duration. See CDL-

AD(2016)007, no. 31, ii. See also R. Higgins, “Derogations under Human Rights Treaties”, BYBIL 48, (1976-

1977), 282-283; see also A. Mokhtar, “Human Rights Obligations v. Derogations. Article 15 of the European

Convention on Human Rights”, IJHR, vol. 8, 2004, 70.

CCPR, General Comment No. 29, para. 1.

CCPR, General Comment No. 29, States of Emergency (Article 4), CCPR/C/21/Rev.1/Add.11 (2001), para. 10

et seq.

CDL-AD(2016)037

- 10 -

36. In the Lawless case, the ECtHR gave the following definition of a “public emergency

threatening the life of the nation”: “an exceptional situation or crisis of emergency which affects

the whole population and constitutes a threat to the organised life of the community of which

the State is composed”.

Later the Court stated in the Brannigan and McBride case that “by

reason of their direct and continuous contact with the pressing needs of the moment, the

national authorities are in principle in a better position than the international judge to decide

both on the presence of such an emergency and on the nature and scope of derogations

necessary to avert it. Accordingly, in that matter a wide margin of appreciation should be left to

the national authorities. Nevertheless, Contracting Parties do not enjoy an unlimited power of

appreciation. It is for the Court to rule on whether inter alia the States have gone beyond the

‘extent strictly required by the exigencies’ of the crisis. The domestic margin of appreciation is

thus accompanied by a European supervision.”

37. Article 4 § 1 of the ICCPR has been interpreted in the Siracusa Principles on the Limitation

and Derogation of Provisions.

Paragraph 39 of the Siracusa Principles indicates that “a threat

to the life of the nation is one that: (a) affects the whole of the population and either the whole or

part of the territory of the State, and (b) threatens the physical integrity of the population, the

political independence or the territorial integrity of the State or the existence or basic functioning

of institutions indispensable to ensure and protect the rights recognised in the Covenant.”

38. The Venice Commission recognises, without any reservation, that the coup attempt of the

15 July 2016 constituted “a public emergency threatening the life of the nation”, as it posed an

existential threat to Turkish democracy. Furthermore, it is clear that the coup was exactly the

sort of situation described in Article 120 of the Turkish Constitution as a pre-condition for the

declaration of the state of emergency.

39. The Venice Commission considers that, following the coup, Turkey was entitled to defend

its democratic institutions and population, as they were under violent attacks, killing more than

200 persons and leaving thousands injured. The Venice Commission acknowledges, together

with the Commissioner for Human Rights of the Council of Europe, that “given the seriousness

of the crimes committed by those who were behind the coup attempt and the obvious threat to

Turkish democracy and the Turkish state, a swift and decisive reaction to that threat was both

natural and necessary”.

2. Prolongation of the state of emergency

40. It is less clear whether this “public emergency threatening the life of the nation” still existed

three months later, when the state of emergency was extended. Article 120 of the Turkish

Constitution requires “serious indications of widespread acts of violence aimed at destroying

the free democratic order established by the Constitution or fundamental rights and freedoms,

or serious disruption of public order because of acts of violence” (emphasis added). On this

point, the Turkish authorities insist that even though the “active phase” of the coup lasted only

for a few hours, a risk of a repeated coup attempt still remains, because many supporters of

Mr Gülen are still present in the State apparatus. This claim seems highly speculative,

especially after over a hundred thousand public servants had been dismissed and tens of

thousands arrested.

Lawless v. Ireland (no. 3), 1 July 1961, § 28, Series A no. 3

Brannigan and MacBride v. United Kingdom, 26 May 1993, § 43, Series A no. 258-B

Annex, UN Doc E/CN.4/1984/4 (1984)

Commissioner for Human Rights, Memorandum on the human rights implications of the measure taken under

the state of emergency in Turkey”, CommDH(2016)35, nr. 25.

CDL-AD(2016)037

- 11 -

41. More generally, in the opinion of the Venice Commission, the prolongation of a state of

emergency is not always the best solution to re-establish public security and restore the rule of

law. Experience in certain other countries shows that the longer the emergency regime lasts,

the further the State is likely to move away from the objective criteria that may have validated

the use of emergency powers in the first place. The longer the situation persists, the lesser

justification there is for treating a situation as exceptional in nature with the consequence that it

cannot be addressed by application of normal legal tools. Under the ICCPR, the HRC has

emphasised that derogations must be temporary and has criticised lengthy emergencies (see,

for example, the concluding observations of the Committee on Israel (1998) and on Egypt

(2002)).

42. According to the Turkish authorities, the prolongation of the state of emergency is justified

not only by the coup attempt of 15 July as such, but also by the activities of the “terrorist

organisations which aimed at making use of the disrupted public order and security after the

coup attempt on 15 July” in order to intensify their terrorist activities in the country. The Venice

Commission acknowledges that in the recent past Turkey has suffered several terrorist attacks.

The notification of derogation submitted by Turkey to the Secretary General of the Council of

Europe referred to these “other terrorist attacks”. However, the state of emergency was mainly

declared, as pointed out in the information note on Decree Law no. 667, in order to “promptly

defeat the terrorist organisation [i.e. the FETÖ] with all its elements and to take the necessary

steps in the most effective and expedious manner for the purpose of eliminating this serious

threat to democracy, rule of law and rights and freedoms of our people.” According to the

Turkish authorities, “the declaration of the State of Emergency had to be resorted to eradicate

this terrorist network in a most speedy and effective manner” and the decrees with force of law

“aim to facilitate the measures to fight the FETÖ in a most speedy and effective manner”. The

information note on Decree Law no. 668 confirms that the “measures have been taken for the

purpose of effective fight against FETÖ terrorist organization which completely infiltrated into

the State’s institutions.” Therefore, the question arises whether these decree laws can still be

justified if the focus shifts towards the “other terrorist acts”.

43. That being said, the Venice Commission recalls the European Court’s position in the

Brannigan and McBride case, cited above, where it stressed that the national authorities (in the

present context – the Turkish National Assembly) are in principle in a better position to assess

the seriousness of such a risk. This matter may ultimately be assessed by the competent

judicial bodies at the national and international levels, in particular by the ECtHR. For the

purpose of the present opinion the question of the justification for the extension of the

emergency period may be left open.

44. Be that as it may, even where there is a threat to “the life of the nation”, the Government

may only take such measures which are required “by the exigencies of the situation” (Article 15

of the Turkish Constitution) and even “strictly required by the exigencies of the situation” (italics

added - see Article 4 of the ICCPR and Article 15 of the ECHR). Before addressing this central

issue, the Venice Commission will examine the procedure for declaring the state of emergency,

for enacting the decree laws and for the derogation from international human rights treaties.

As regards the principle of time limitation of the state of emergency, see also the recommendations by the UN

Special Rapporteur in his report on the question of Human Rights and the State of Emergency (1997),

paragraphs 74 and 75. See also Harris, O’Boyle and Warbrick (Law of the European Convention on Human

Rights, 3rd edition (2014), at p. 841), where they argue, with reference to the admissibility decision in Marshall v.

UK, that to extend the regime of emergency “the state can muster evidence to the effect that its belief that the

campaign was at least dormant (with real potential to revive) was not an unreasonable one.”

CDL-AD(2016)037

- 12 -

C. Compliance with the procedure

1. Declaration of the state of emergency and its approval by Parliament

45. On 20 July 2016, the Government, under the chairmanship of the President, having

consulted with the National Security Council, decided to declare a state of emergency

throughout the country for a period of ninety days, beginning from 21 July 2016. The Grand

National Assembly of Turkey was on summer recess; however, it was convened immediately

and on the same day it approved the declaration of the state of emergency. By the

Government’s decision of 5 October 2016, approved at the plenary session of the Grand

National Assembly, the state of emergency was extended for a further period of three months.

Therefore, the domestic procedure for the declaration of the state of emergency and its

prolongation was formally respected.

2. Enactment of the decree laws by the Government and their approval by

Parliament

46. The decision of Parliament approving the declaration of the state of emergency enabled

the Government to realise its power to enact emergency decree laws (this term is also

translated from Turkish as “decrees having the force of law”).

47. Article 121 § 3 of the Turkish Constitution provides: “[The emergency] decree laws shall be

published in the Official Gazette, and shall be submitted to the Grand National Assembly of

Turkey on the same day for approval; the time limit and procedure for their approval by the

Assembly shall be indicated in the Internal Regulation”. These decree laws have to be

discussed in the committees and in the plenary sessions of the Grand National Assembly with

priority and urgency.

Decree laws not submitted to the Grand National Assembly of Turkey on

the day of their publication shall cease to have effect on that day and decree laws rejected by

the Grand National Assembly of Turkey shall cease to have effect on the day of publication of

the decision in the Official Gazette. The amended provisions of the decree laws which are

approved as amended shall enter into force on the day of their publication in the Official

Gazette.

48. Article 128 of the Rules of Procedure of the Grand National Assembly of Turkey specifies:

“Decree laws issued as per Articles 121 and 122 of the Constitution and submitted to the Grand

National Assembly of Turkey are debated and decided upon according to the rules stipulated in

the Constitution and the Rules of Procedure regarding the debate of government bills and

private members’ bills, but immediately within thirty days at the latest [emphasis added] and

before other decrees having the force of law and bills in the committees and the Plenary. If the

debate on the decrees having the force of law fails to be concluded in the committees, within at

least twenty days, the Office of the Speaker puts them on the agenda of the Plenary.”

49. So far ten decree laws

have been issued, published in the Official Gazette and notified to

the Secretary General of the Council of Europe:

 no. KHK/667 of 22 July 2016,

 no. KHK/668 of 25 July 2016,

 no. KHK/669 of 31 July 2016,

 no. KHK/670 of 17 August 2016,

 no. KHK/671 of 17 August 2016,

See Article 90 § 1 of the Rules of procedure of the Grand National Assembly of Turkey: “Bills of empowering

acts and decrees having the force of law shall be debated in line with the rules set in the Constitution and the

Rules of Procedure regarding the debate of laws, but immediately and before all other bills in the committees and

the Plenary.”

The two most recent decree laws are not analysed in the present opinion.

CDL-AD(2016)037

- 13 -

 no. KHK/672 of 1 September 2016,

 no. KHK/673 of 1 September 2016,

 no. KHK/674 of 1 September 2016;

 no. KHK/675 of 29 October 2016;

 no. KHK/676 of 29 October 2016.

50. According to the authorities, all decree laws have been immediately submitted to

Parliament for approval, as required by Article 121 § 3 of the Constitution. However, from 1 July

and until 1 October 2016, Parliament was on summer recess. Returning from recess on

1 October 2016, Parliament, on 18 October 2016, discussed and accepted the first decree law

enacted by the Government (no. 667),

and started the examination of subsequent decree

laws.

51. The Turkish authorities consider that the 30-day period set in the Rules starts running from

the moment when Parliament returned from the summer recess. This interpretation of the

Constitution and of the Rules of Parliament is a matter of great concern for the Venice

Commission. It has allowed the Government to legislate through the emergency decree laws

without any parliamentary control for a period of over two months.

52. The Venice Commission notes that the Speaker or the President may summon Parliament

during the recess (Article 93 of the Constitution; Article 7 of the Rules). On 20 July 2016,

Parliament was summoned for the approval of the declaration of the state of emergency, but

not for the approval of the ensuing emergency decree laws, whereas, in practical terms, the

latter are much more important than the former. The Venice Commission does not know why

the Speaker of Parliament or the President did not use their power to summon Parliament

again, in order to let it discuss immediately the emergency decree laws.

53. The Venice Commission believes that this situation is dissonant with the clear import of the

Constitution and the Rules. Although the word “immediately” is used in the Constitution only in

respect of the approval of the declaration of the state of emergency, the Constitution and the

Rules clearly regard examination of the emergency decree laws also as an urgent matter.

Despite the common conviction that the imposition of a state of emergency is always “time for

executive power”, contemporary constitutionalism provides for regulations to guarantee the role

of Parliament in this process. The Turkish Constitution places the emergency decree laws

under the ex post control of the Grand National Assembly. Such control should be effective; a

long delay between the enactment of the emergency decree laws and their examination by

Parliament means that such measures were being implemented in the meantime unilaterally

without such parliamentary control. Furthermore, in the case at hand, the lack of timely control

of the emergency decree laws is all the more problematic as there was no judicial review of the

decree laws during the period under examination, and the Constitutional Court may review the

emergency decree laws in abstracto only once they have been approved by the law (for more

details on this see Section F below).

54. That being said, Parliament is now back at work, and nothing prevents it from exercising its

supervisory powers in accordance with the Constitution. However, even here Parliament acted

with delay: thus, Decree Laws nos. 668, 669, and 671 were approved on 8 and 9 November

2016, i.e. more than 30 days after the end of the summer recess; Decree Law no. 674 was

approved on 10 November; other decree laws have been put on the agenda, but have not yet

With some minor amendments and supplementary measures added.

See Article 121 § 1 of the Turkish Constitution: “In the event of a declaration of a state of emergency […] this

decision shall be […] submitted immediately to the Turkish Grand National Assembly for approval. If the Turkish

Grand National Assembly is in recess, it shall be summoned immediately” (italics added); see also Article 121 § 3

which requires that the emergency decree laws should be submitted to Parliament “on the same day for

approval”.

CDL-AD(2016)037

- 14 -

been discussed.

Thus, although Parliament had recognised and approved that there had

been a nation-wide emergency, subsequently it did not give the emergency situation

emergency treatment. Due to the delays involved, the ex post parliamentary control lost some

of its effectiveness.

3. Notifications of derogations

55. By letters dated 21 July 2016, the Turkish authorities notified the Secretary General of the

Council of Europe and the Secretary General of the United Nations about their derogation from

the ECHR and the ICCPR during the state of emergency. In the following weeks, the Turkish

Government notified to the Secretary General of the Council of Europe further emergency

decree laws, with explanatory notes attached to them. The decision to extend the state of

emergency was also notified to the Secretary General of the Council of Europe and to the

Secretary General of the United Nations. Decree Laws nos. 675 and 676 were notified to the

Secretary General of the Council of Europe on 17 November 2016.

56. The derogation instrument lodged with the Secretary General of the Council of Europe

under Article 15 of the ECHR did not indicate which Convention articles are affected by the

emergency decree laws; it simply informed the Council of Europe about the content of those

decree laws. By contrast, the notification instrument lodged with the Secretary General of the

United Nations under Article 4 of the ICCPR contained a list of provisions affected by the

emergency measures, but not the description of those measures.

57. As suggested by the Siracusa Principles, cited above, the notification under Article 4 § 1 of

the ICCPR should contain “a brief description of the anticipated effect of the derogation

measures on the rights, recognized by the Covenant, including copies of decrees derogating

from these rights issued prior to the notification” (see p. 45 (e)). The UN Human Rights

Committee has emphasised that the notification by States Parties should include full

information about the measures taken and a clear explanation of the reasons for them as well

as the obligation to notify any changes in the state of emergency. The Committee has asserted

its duty to monitor the law and practice of a State party for compliance with Article 4 even where

the State party has not submitted a notification.

58. As to the compliance with the notification requirement under Article 15 of the ECHR and

Article 4 of the ICCPR, the Venice Commission will not take a stand on this point.

It belongs, in

the first place, to the competent institutions applying those international treaties to assess

validity of the notifications, in view of their form and substance.

It is unclear whether Decree Law no. 670 has been approved.

The Venice Commission does not have precise information about the reasons for this delay. Under Article 126

of the Rules of Parliament (entitled “Decisions concerning a state of emergency”), “a motion may be tabled during

the debates by political party groups or the signature of at least twenty members on shortening or extending the

time prescribed in the decision mentioned in the paragraph above” (italics added). However, the “paragraph

above” appears to cover declaration of the state of emergency, and not the approval of the emergency decree

laws. It is Article 128 of the Rules, entitled “Debate on decrees having the force of law adopted during state of

emergency and martial law” which sets a 30-days rule, which appear to have no exceptions. Part two of Article

128 indicates that “if the debate on the decrees having the force of law fails to be concluded in the committees,

within at least twenty days, the Office of the Speaker puts them on the agenda of the Plenary” – however, this

should not be understood as allowing the Speaker to put them on agenda on a later date, which would be beyond

the 30-days’ period stipulated in the first part of this Article.

CCPR General Comment No. 29, para. 17

The Venice Commission does not have comprehensive information about derogation from other international

instruments, to which Turkey is a party.

CDL-AD(2016)037

- 15 -

D. General overview of the emergency measures

59. The main effect of a declaration of a state of emergency/derogation is that the Government

may take certain measures which would not be acceptable under normal circumstances. In

terms of the European human rights system, this regime significantly extends the Government’s

margin of appreciation as to how to cope with the emergency. This will be the starting point of

the present opinion.

60. However, as demonstrated above, under both the ECHR and the ICCPR the Government’s

discretion is limited to what is “strictly required by the exigencies of the situation” and by rights

that are non-derogable.

The Venice Commission has previously stressed that these

restrictions are crucial “since State Practice shows that the gravest violations of human rights

tend to occur in the context of states of emergency and that States may be inclined, under the

pretext of a state of emergency, to use their power of derogation for other purposes or to a

larger extent than is justified by the exigency of the situation”.

The Human Rights Committee

likewise has stressed that not only the emergency itself, but the “specific measures taken

pursuant to the derogation must also be shown to be required by the exigencies of the

situation,” and has expressed concern over insufficient attention being paid by derogating

states to the principle of proportionality.

61. Furthermore, the scope of the Turkish Government’s discretion is also limited by the

general principle of the rule of law, which is a founding principle of the Turkish Constitution and

of international human rights law as well. In its Recommendation 1713(2005) the PACE noted

that “the need for security often leads governments to adopt exceptional measures”, but

stressed that “no State has the right to disregard the principle of the rule of law, even in extreme

situation.”

In the same vein the PACE in its Resolution 2090(2016) warned against the risk

that “counter-terrorism measures may introduce disproportionate restrictions or sap democratic

control and thus violate fundamental freedoms and the rule of law, in the name of safeguarding

State security.”

On several occasions the Venice Commission has underlined that “even in a

state of public emergency the fundamental principle of the rule of law must prevail.”

Finally, in

the case of Al-Dulimi and Montana Management Inc. v. Switzerland,

the ECtHR observed that

“the [European] Convention being a constitutional instrument of European public order

[references omitted], the States Parties are required, in that context, to ensure a level of

scrutiny of Convention compliance which, at the very least, preserves the foundations of that

public order. One of the fundamental components of European public order is the principle of

the rule of law, and arbitrariness constitutes the negation of that principle”.

As the Human Rights Commissioner rightly pointed out, “the test of necessity and proportionality ordinarily

applying to interferences with human right protected under the ECHR are altered but not suspended during a

period of derogation linked with a state of emergency” – see Commissioner for Human Rights, Memorandum on

the human rights implications of the measure taken under the state of emergency in Turkey”, CommDH(2016)35,

No. 25.

Opinion on the protection of human rights in emergency situations, adopted by the Venice Commission at its

66th Plenary Session (Venice 17-18 March 2006), CDL-AD(2006)015, nr. 12; Opinon … France …Opinion on the

legal framework governing curfews, adopted by the Venice Commission at its 107th Plenary Sesion (Venice, 10-

11 June 2016) CDL-AD (2016)010, nr. 23. See also CCPR, General Comment No. 29, para. 2: “When

proclaiming a State of emergency with consequences that could entail derogation from any provision of the

Covenant, States must act within their constitutional and other provisions of law that govern such proclamation

and the exercise of emergency powers.”

CCPR, General Comment No. 29, para. 4.

Parliamentary Assembly of the Council of Europe, Recommendation 1713 (2005) Democratic oversight of the

security sector in member states, 23 June 2005, http://www.assembly.coe.int/nw/xml/XRef/X2H-Xref-

VieuwHTLM.asp?FileID=11000&lang=en

Resolution 2090(2016), http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-EN.as?fileid=22481&lang=en

CDL-AD(2011)049, Opinion on the draft law on the legal regime of the state of emergency of Armenia, § 44.

ECtHR (GC), no. 5809/08, 21 June 2016, § 145

CDL-AD(2016)037

- 16 -

62. The analysis of the necessity and proportionality of emergency measures and their

compliance with the rule of law requires a dynamic approach. The ECtHR has found

that Article 15 § 3 implies a requirement of permanent review of the need for emergency

measures

and that interpretation of Article 15 must leave a place for progressive adaptation.

The same concerns more specific analysis of proportionality and necessity of particular

measures - what is justified in the immediate aftermath of a major public crisis may not be

needed several months later.

63. Before going into detailed analysis of specific measures enacted through Decree Laws

nos. 667 - 676, the Venice Commission will examine certain common characteristics of the

emergency measures adopted by the Government.

1. Scope of the emergency measures

ratione personae

and

ratione temporis

64. Article 121 § 3 of the Turkish Constitution allows the Government to legislate through

decree laws “on matters necessitated by the state of emergency”. The Venice Commission

recalls in this respect the position of the Turkish Constitutional Court expressed in its judgment

of 10 January 1991. In that judgment the Court observed that “the scope of the regulation of

[emergency] decree laws is limited with ‘the issues that are necessitated by the state of

emergency or by the state of martial law’ […].The issues that are necessitated by the state of

emergency are limited to the reasons and goals behind the state of emergency” (italics

added).

In other words, any emergency measure should have a sufficiently close nexus to the

situation which gave rise to the declaration of a state of emergency.

65. The Venice Commission notes that the declaration of a state of emergency of 20 July 2016

did not contain any reference to the public danger it was addressing, and did not describe, even

briefly, the measures to be taken to restore legal order. This is regrettable: without those

elements it is difficult to establish the essential material limitations on the Government’s

emergency powers.

66. The “reasons and goals” of the emergency decree laws under examination were explained

by the Turkish authorities in the Information Notes submitted to the Secretary General of the

Council of Europe together with the derogation letters. Those Information Notes speak of the

need to combat FETÖ/PDY. The Government’s Memorandum also refers to the need to defeat

“the terrorist organisation attempting the coup [italics added] with all its components” (p. 10).

The notification of derogation submitted by Turkey to the Secretary General of the Council of

Europe also referred to other terrorist attacks (see no. 65), stating: “The coup attempt and its

aftermath together with other terrorist acts have posed severe dangers to public Turkish

democracy and the Turkish state, a swift and decisive reaction to that threat was both natural

and necessary.”

67. In fact, the emergency decree laws also affect other individuals and organisations, namely

those allegedly connected to the PKK, an organisation defined as “terrorist” in Turkey and

internationally, as well as other groups defined as “terrorist” in Turkey. As stipulated in Article 1

of Decree Law no. 667, the aim of this decree is “to establish measures that must necessarily

be taken within the scope of attempted coup and fight against terrorism”. Dismissals of public

servants are said to concern persons “considered to be a member of, or have a relation,

connection (link) or contact with terrorist organisations or structure/entities or groups

established by the National Security Council as engaging in activities against the national

Brannigan and McBride v. the United Kingdom, cited above, § 54

ECtHR 18 January 1978, Ireland v. United Kingdom, § 83.

Constitutional Court 10 January 1991, Registry n° 1990/25, Decision 1991/1. See also 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.

CDL-AD(2016)037

- 17 -

security of the State”.

These broad formulas show that the emergency measures may be

applied to all organisations which represent a threat to the national security, and not only the

Gülenist network.

68. There is no doubt that the State is not only permitted but even required to take energetic

measures against all terrorist organisations, irrespective of their political platforms, religious

affiliations or ethnic composition, as long as these measures are consistent with the State’s

domestic and international law obligations. The Venice Commission also acknowledges that an

emergency situation may deteriorate and take new forms: thus, a major natural disaster may be

later aggravated by an epidemic. Such developments may require new measures, not

envisaged initially. However, a sufficiently close nexus between those measures and the

emergency situation that was declared in July should always exist. The Government requested

and received emergency powers from Parliament in July 2016 in connection with a specific

public emergency, and should use those powers accordingly. As underlined in the Rule of Law

Checklist (with reference to further international human rights standards), in the context of an

emergency situation “strict limits on the duration, circumstance and scope of such [emergency]

powers [of the Government] is therefore essential”.

Other threats to the public order and

safety should be dealt with by means of ordinary legislation.

69. That being said, what “matters” are “necessitated by the state of emergency” (a language

used by the Turkish Constitution), or “strictly required by the exigencies of the situation” (an

expression used by the ECHR and the ICCPR), and whether a sufficiently close nexus exists

between the emergency situation and the measure taken by the Government must be decided

on a case-by-case basis. The Venice Commission is not supposed to examine specific cases;

Turkish Parliament and the courts are better placed to decide whether the Government went

beyond its powers and applied emergency measures to those persons and those cases which

were not sufficiently related to the situation which gave rise to the declaration of the state

emergency or to its subsequent development. Therefore, the Venice Commission will not make

any specific recommendations in this regard, but only draw the attention of the Turkish

authorities to the fundamental principles limiting the extent of the emergency powers.

2. Compliance with the Law on the State of Emergency of 1983

70. Pursuant to Article 121 § 2 of the Constitution, the scope of the Government’s emergency

powers is defined in the Law on the State of Emergency of 1983 (hereinafter the 1983 Law).

The Turkish authorities argue, on p. 46 of their Memorandum, that the decree laws have the

same legal force as the 1983 Law itself; however, this approach would make Article 121 § 2

redundant. The rationale behind this constitutional provision (that certain vital issues pertaining

to states of emergency should be regulated in advance by a law) would be nullified if the

Government could by its decrees – even those having the force of law – deviate from this law.

71. The Venice Commission observes that the emergency decree laws under examination

provide for various measures; these include, for example, dismissal of public servants,

dissolution of legal entities, confiscation of their assets, etc.

72. Articles 9 and 11 of the 1983 Law describe measures to be taken when the state of

emergency is declared in accordance with Article 3 (1) (b) (which covers situations similar to the

July 2016 coup). Those two articles contain a closed list of measures which may be taken by

the Government. In particular, they do not mention the dismissal of public servants or judges

See Article 2 (1), d, 2 (3), 3 (1), 4 (1), and 5 (1) of Decree Law no. 667; Article 2 (1) and 2 (4) of Decree Law

no. 668; Article 2 (1) and Article 20 of Decree Law no. 669; Article 2 (1), 5 (1) and 7 (1) of Decree Law no. 670;

Article 23 of Decree Law no. 771; Article 2 (1) of Decree Law no. 772; Article 4 (1), 5 (1), 7 (1), 9 (1) of Decree

Law no. 773 and Article 8 of Decree Law no. 774.

See also the memorandum of the Turkish authorities, p. 11

cited above § 51

CDL-AD(2016)037

- 18 -

amongst those measures.

Neither does the 1983 Law permit for permanent dissolution of

legal entities; Article 11 (o) only provides for the “suspension of the activities of associations for

periods not exceeding three months, after considering each individual case” (italics added).

73. These are only a few examples of measures introduced by the decree laws that go beyond

the list of permissible measures defined in the 1983 Law. The question is how to approach this

ostensible domestic “unlawfulness” of the emergency decree laws.

74. The Turkish authorities suggest that the 1983 Law does not need to be followed strictly.

They also claim that “certain provisions that might be applied within the state of emergency

periods are included also in the other […] laws such as Civil Servants Law no. 657 (articles

62/1, 72/3, 96, 178); the Law for Provincial Administration no. 5442 (article 31/B) or the Banking

Law no 5411 (article 131/3) according to their relevance.”

75. This position is hard to reconcile with the text of Article 121 § 2 of the Constitution. First of

all, it needs to be verified whether the specific laws referred to by the Turkish Government

indeed authorised the measures implemented in casu. In any event, Article 121 § 2 refers to a

specific law which is to define the limits of the Government’s emergency powers.

76. In addition, during the state of emergency nothing prevents the executive authorities from

using their normal powers provided by the ordinary legislation. The Government could have

urged the relevant administrative entities to use those powers, with reference to the Civil

Servants Law, the Law for Provincial Administration or the Banking Law. Instead, the

Government preferred to enact, through the emergency decree laws, special measures, which,

on their face, were not based on ordinary legislation, and, at the same time, went beyond the

catalogue of measures provided by the 1983 Law.

77. That being said, as regards those extraordinary measures which were not directly indicated

in the 1983 Law, it will be up to the Constitutional Court of Turkey to assess their compliance

with Article 121 of the Constitution.

Article 9 (i) speaks of the “closure of workplaces which are not of vital importance to the region”, but this does

not appear to be the same measure as a comprehensive cleansing of the State apparatus at all levels. Article 32

gives the regional governors the right to impose disciplinary penalties (but not dismissals) on public personnel

except the military and judiciary, if they do not perform the duties assigned to them or disobey orders. I.e. these

provisions do not allow for dismissals of civil servants.

Memorandum, p. 45: “The inclusion of certain restrictions that might be applied, the certain measures that

might be taken and the certain powers that might be granted to the public officials within the state of emergency

periods in the Law no 2935 does not eliminate the opportunity to make a legal regulation related to the other

necessary and mandatory measures. In other words, it is not possible to [speak] about a monopoly established

by the provisions of the Law no 2935 with regard to the measures that might be taken within the state of

emergency periods”.

Ibid.

Another possible interpretation of the 1983 Law is that it established a catalogue of measures to be taken by

the regional authorities, leaving carte blanche to the central Government. Indeed, the measures listed

in Articles 9 and 11 of the 1983 Law all have “local” character. However, this interpretation does not follow from

the literal reading of the 1983 Law. And, in any event, even assuming that the 1983 Law did not define the scope

of powers of the central Government, it means that the condition of Article 121 § 2 of the Constitution (that the

Government’s discretion should be circumscribed by the State of Emergency Law) has not been met, and the

Government acted in a legal vacuum.

It is unclear to what extent the subsequent approval of the emergency decree laws by Parliament may be seen

as “legitimising” the measures which are not provided for in the 1983 Law. The Venice Commission leaves this

question to the domestic judicial instances, but considers that ex post ratification by Parliament of the measures

that go beyond the 1983 Law pursuant is not consistent with the logic of Article 121 of the Constitution.

CDL-AD(2016)037

- 19 -

3. Permanent character of some of the emergency measures

a. General principles

78. The most important characteristic of any emergency regime is its temporary character. This

is stressed in the Paris Minimum Standards of Human Rights Norms in a State of Emergency,

Section A, p. 3 (a)

adopted by the International Law Association in 1984. This was also

emphasised by the Special Rapporteur of the UN on human rights and states of exception,

cited above. The Venice Commission affirmed this in its Opinion on the Draft Constitutional

Law on “Protection of the Nation” of France.

In the same vein, General Comment No. 29 on

Article 4 of the ICCPR points out that measures derogating from the provisions of the Covenant

must be of “an exceptional and temporary nature”.

79. A difficult question is to what extent individual measures taken under the emergency

regime may have permanent effect (i.e. whether their effects may go beyond the emergency

period). Here, a distinction should be made between individual measures and structural

(general) provisions. Individual measures may sometimes be irreversible, when the danger may

only be averted by an irrevocable action.

That being said, during the emergency regime the

Government should try, to the maximum extent possible, and whenever the danger may be

averted otherwise, to take provisional individual measures, i.e. those which are of limited

duration or may be later revoked or amended, since the ultimate goal of any emergency should

be for the State to return to a situation of normalcy.

80. As to structural (general) measures, the provisions of emergency decree laws should lose

their legal effect with the expiry of the state of emergency. Permanent changes to legislation

should not be introduced through such decree laws, but must be left to ordinary legislation. This

is particularly important for the existence of effective remedies: aspects of the procedures for

providing remedies may be altered, but effective remedies may not be completely abolished.

The Government should not be allowed to exclude judicial review of its own actions or to

change procedural rules so as to make this review ineffective. Equally, the Government should

not be able to enact such rules that weaken the position of other independent State institutions,

change their composition, principles of functioning etc.

a. Individual measures transcending the period of the state of emergency

81. The emergency decree laws under examination contain measures which transcend the

period of the emergency. Thus, Article 2 of Decree Law no. 667 orders permanent dissolution

of over two thousand private institutions: under this Decree Law, 35 health institutions,

934 schools, 109 student dormitories, 104 foundations, 1125 associations, 15 universities and

29 trade unions have been liquidated.

Pursuant to Article 2 (2) of this Decree Law, all assets

of those legal entities are to be transferred to the State, permanently and without

compensation. Articles 3 and 4 of Decree Law no. 667 provide for the dismissal of judges and

other public servants, to be implemented by decisions of relevant judicial bodies or

administrative entities.

http://www.uio.no/studier/emner/jus/humanrights/HUMR5503/h09/undervisningsmateriale/ParisMinimumStanda

rds.pdf

CDL-AD(2016)006, § 65

ICCPR, General Comment No. 29. States of Emergency (Art. 4), CCPR/C/21/Rev.1.Add.11.31 August 2001

Such as, for example, killing cattle infected with a dangerous contagious disease, or destruction of buildings

which risk collapsing.

General Comment No. 29, cited above, at para. 14, stresses the following: “Even if a State party, during a state

of emergency, and to the extent that such measures are strictly required by the exigencies of the situation, may

introduce adjustments to the practical functioning of its procedures governing judicial or other remedies, the State

party must comply with the fundamental obligation, under article 2, paragraph 3, of the Covenant to provide a

remedy that is effective.”

Figures produced by the Government in their Memorandum, p. 12.

CDL-AD(2016)037

- 20 -

82. Article 2 of Decree Law no. 668 refers to a list of public servants to be dismissed; the list is

appended to this Decree Law. This Decree Law also contains a list of the media outlets to be

closed. Under Article 2 (3) of this Decree Law all assets of those media outlets are to be

transferred to the State, permanently and without compensation.

83. Subsequent decree laws contain similar measures: they order mass dismissals of public

servants, liquidation of legal entities and confiscation of their assets. All these measures are

permanent; in addition, the decree laws proclaim that “stay of execution cannot be ordered in

the cases brought as a result of the decisions taken and acts performed within the scope of [the

relevant decree laws]” (see Article 10 (1) of Decree Law no. 667, Article 38 (1) of Decree Law

no. 668, etc.).

84. Given the nature of the conspiracy which led to the coup of 15 July 2016, the Venice

Commission understands the need to conduct a swift purge of persons clearly implicated in the

coup from the State apparatus. Any action aimed at combatting the conspiracy would not be

successful if some of the conspirators are still active within the judiciary, prosecution service,

police, army, etc.

85. However, the same result may be achieved by employing temporary measures, and not

permanent ones. The risk of a repeated coup may be significantly reduced if the supposed

Gülenists, as a precautionary measure, were suspended from their posts, and not dismissed.

Similarly, instead of definitely confiscating all assets of organisations, it may suffice to

temporarily freeze large amounts on their bank accounts or prevent important transactions, to

appoint temporary administrators and to allow only such economic activity which may help the

organisation in question to survive until its case is examined by a court following normal

procedures. Temporary measures of this type also ultimately make possible the fairer

examination of the correctness of the decisions being made according to ordinary judicial

process.

86. In addition, the Venice Commission regrets that the decree laws themselves contained

individual measures; such method of regulation deprives the persons concerned of the

individualised treatment and apparently bars judicial review of their cases. For more details on

this issue see subsection 4 below; see also subsection 1 (f) of Section E, subsection 2 of

Section F, and Section G.

b. Structural changes introduced by the emergency decree laws

87. The decree laws introduced certain changes to the current regulations, which appear to

have a structural character and affect the status and functioning of the institutions or normal

rules of procedure. While certain measures introduced by the decree laws are clearly

temporary,

other measures make changes to the current legislation, and the decree laws do

not indicate that these measures will cease to apply after the end of the emergency period.

Thus, the authorities intend to keep these measures in the legislation permanently.

88. Thus, for example, Article 23 of Decree Law no. 671 abolishes the Telecom Presidency

and transfers its functions to the Information and Communication Technologies Authority.

Article 25 of this Decree Law establishes a new procedure for authorising wiretapping of

telecommunications and obtaining access to electronic data archives. It thus amends current

Article 60 of the Electronic Communications Law. Article 16 of Decree Law no. 674 amends

Law no. 5275 on the execution of penalties and security measures, giving the Chief Public

Prosecutor the power to restrict the detainees’ “temporary leave” from penitentiary institutions

and detention centres. Article 38 of this Decree Law amends Law no. 5393 on municipalities

and sets out a procedure for the replacement of mayors suspended from duties for aiding and

See, for example, Article 6 (1) of Decree Law no. 667 and Article 3 (1) of Decree Law no. 668 which speaks of

the measures introduced “during the period of state of emergency”.

CDL-AD(2016)037

- 21 -

abetting terrorism. Article 1 of Decree Law no. 676 introduces the rule that a maximum of three

lawyers are admitted to defend a person at a hearing in organised crime cases. Article 3

amends provisions of the Criminal Procedure Code and provides for the detention of those

accused of certain types of crimes without the access to a lawyer for 24 hours. Article 6

amends the provisions of Law no. 5275, and describes rules related to the limitations of access

to a lawyer of a convict. The list of those structural changes in the emergency decree laws

continues.

89. The Venice Commission reiterates its earlier position that the emergency decree laws

should not introduce permanent structural changes to the legal institutions, procedures and

mechanisms, especially where the power to make such changes is not provided by the

Constitution in explicit and precise terms. The idea of a “democratic […] State governed by the

rule of law”, expressed in Article 2 of the Turkish Constitution, enshrines the principle of a

limited government. The Turkish Constitution allows the Government to derogate from certain

human rights provisions as long as the state of emergency persists and to the extent “strictly

required”, but it does not extend this power to legal rules which are to be applied after the end

of the emergency period. As the Human Rights Committee has stated, “the restoration of a

state of normalcy where full respect for [human rights] can again be secured must be the

predominant objective of a State party derogating from the Covenant.”

90. Furthermore, in the opinion of the Venice Commission, even the ex post approval of the

emergency decree laws by Parliament should not lead to the permanent legitimation of such

measures. The Turkish Constitution sets a special legal framework for dealing with an

emergency situation, which is not adapted for enacting permanent rules. An emergency

situation has its own political logic: the executive authorities should be able to act quickly and

pro-actively; the public opinion in such moments expects radical and even somewhat simplistic

measures from all branches of government. The emergency context thus leaves little room for a

thorough and critical discussion of complex societal and legal issues. The Venice Commission

recommends that all such structural changes be introduced and discussed in a normal manner,

provided by the Turkish Constitution, after the end of the emergency period.

Ad hominem

emergency legislation

91. The Venice Commission notes that the emergency decree laws contain lists of individuals

dismissed from public service and of organisations to be liquidated. This manner of regulation is

a source of concern.

92. In emergency regimes, the general practice is to make a distinction between general norms

(decree laws), which the Government may issue, and individual measures, in turn authorised

by these general norms (decree laws). A distinction between general decree laws and

individual measures is necessary for respecting the principles of necessity and proportionality

and allow for appropriate judicial review. For instance, mass dismissals of public servants

executed through non-justiciable, ad hominem decree laws and following a summary procedure

(or no procedure at all – for more details see below, Section E, subsection 1), are highly

problematic also because that makes it extremely difficult, if not impossible, to pay due heed to

the principles of necessity and proportionality and verify whether these dismissals were

justified. A distinction between general decree laws and individual measures is vital for

introducing ex ante administrative procedural guarantees and ex post judicial guarantees

securing a minimum of the rule of law and protection of basic human rights.

Thus, Article 4 (1) of Decree Law no. 668 authorizes the Ministry of National Defense to establish and dissolve

military courts. Under Article 16 of Decree Law no. 669 disciplinary powers regarding military judges are given to

a body within the Ministry of National Defense. Article 17 of Decree Law no. 669 abolishes Article 31 of Law

no. 357 and introduces new rules for suspension from office of military judges.

General Comment No. 29, para. 1.

CDL-AD(2016)037

- 22 -

93. The Venice Commission acknowledges that there may have been a need to take

immediate action in respect of a very limited number of persons who, due to their functions

(position in the Army or Police, etc.), represented a potential security threat. But such action

ought to have taken the form of temporary suspensions, imposed by decisions of the respective

administrative entities, and followed later by a fair legal process.

94. By contrast, putting tens of thousands of public servants and thousands of legal entities on

lists a few weeks after the declaration of the state of emergency

suggests that the cases of

those individuals and organisations cannot have been thoroughly considered, and that,

consequently, those measures may affect a large number of innocent people and organisations

which have nothing to do with the conspiracy.

It would be more appropriate to delegate the

task of vetting the State apparatus to appropriate administrative entities, and ensure that the

decisions are taken on a case-by-case basis, providing appropriate review. The PACE in its

Resolution 1096(1996) stated (in the context of post-communist lustration processes) that “guilt,

being individual, rather than collective, must be proven in each individual case – this

emphasises the need for an individual, and not collective, application of lustration laws”.

The

Venice Commission will develop this idea further, in examining specific emergency measures,

and the procedural safeguards which should be available for those on the lists.

5. Waiver of liability

95. The Venice Commission is concerned about the provisions of the emergency decree laws

which waive the liability of State institutions and officials for measures taken during the state of

emergency. Thus, Article 9 (1) of Decree Law no. 667 stipulates that “legal, administrative,

financial and criminal liabilities shall not arise in respect of the persons who have adopted

decisions and fulfill their duties within the scope of this Decree Law”. Similar provisions can be

found in the subsequent decree laws.

96. According to the Turkish authorities, the clause’s aim is to reassure those officials who are

to implement the decree laws that, even though they may need to derogate from the ordinary

rules (for example concerning the deadline for bringing a detained person to a judge), they will

not face any liability for doing so. Moreover the authorities state that “the non-accountability

within the scope of the Decree Laws refer to the non-accountability of persons related to their

duties whereas all accountabilities related to the personal crimes of the officials continue”.

97. However, in the opinion of the Venice Commission, this clause sends a very dangerous

message, especially as regards the waiver of criminal liability. This waiver may be understood

as implying that the decree laws directly authorise and command certain actions which should

be otherwise considered as “crimes” under the Criminal Code of Turkey, or at least that they

suggest to those committing these crimes in the exercise of their functions that they will not be

persecuted.

Thus, Decree Law no. 668, which contained the list of military personnel to be dismissed, has been enacted on

25 July 2016; Decree Law no., 670 which contained list of civil servants to be dismissed was enacted on

17 August 2016.

And which may affect their right to be presumed innocent, guaranteed by Article 6 § 2 of the ECHR, and Article

14 § 2 of the ICCPR.

“Measures to dismantle the heritage of former communist totalitarian systems”, p. 12. See also the Human

Rights Committee, M.K., et. al v. Slovakia, Communication No. 2062/2011 (Views adopted 23 March 2016),

paras. 9.3-9.4 (lustration of civil servants on the grounds that they pose a significant danger to human rights or

democracy requires an individual assessment, must be based on objective and reasonable criteria aimed at

achieving a legitimate purpose, and comply with due process and other rights under the ICCPR).

Imposing repressive measures by “sanctions lists” is occasionally used in the UN system; however, such

measures still have to be reviewed at the national level in order to avoid arbitrariness: see Al-Dulimi and Montana

Management Inc. v. Switzerland ECtHR (GC), no. 5809/08, 21 June 2016.

CDL-AD(2016)037

- 23 -

98. Furthermore, this waiver may be seen as removing any accountability for actions which are

taken within the broad discretionary powers given by the decree laws to various state

institutions and officials. This, again, is a dangerous logic and contrary to the rule of law. A

person may use his or her discretionary powers reasonably and bona fide. However, as it will

be demonstrated below, the emergency decree laws are formulated in excessively vague

terms, giving almost unfettered powers to the state officials implementing them. This creates

the risk of large-scale abuses, which cannot be tolerated in a State under the rule of law.

99. Finally, this provision may be seen as waiving criminal liability ad personam – i.e. giving

immunity to persons who “fulfilled their duties within the scope of this Decree Law”, even if

those persons acted clearly in excess of their powers, or violated non-derogable human rights

obligations (for example, ill-treated detainees). Even if this is not intended, it may be perceived

as such. And given that some of the measures enacted by the decree laws are supposed to

remain after the end of the emergency period, this waiver of liability may also become a

permanent feature of the Turkish legal order, which is clearly unacceptable.

100. Therefore, the Venice Commission urges that these clauses be repealed from the decree

laws.

E. Specific emergency measures

1. Dismissals of public servants and associated measures

a. Description of measures

101. Article 4 (1) of Decree Law no. 667 orders the dismissal of public servants “who are

considered to be a member of, or have relation, connection or contact with terrorist

organisations or structure/entities, organizations or groups, established by the National Security

Council as engaging in activities against the national security of the State”. They are dismissed

by decision of the relevant administrative entities and officials. Judges are dismissed on the

same grounds by virtue of Article 3 (1) by decisions of the relevant judicial bodies (top courts

and the High Council for Judges and Prosecutors, hereinafter the HCJP).

102. Article 2 of Decree Law no. 668 orders the dismissal of military personnel “which belong

to, connect to, or contact with […] FETÖ/PDY”. This Decree Law contains, as an appendix, a

long list of individuals to be dismissed from the military service. Article 2 of Decree Law no. 669

contains a similar provision and encloses another list of military personnel and personnel of the

gendarmerie to be dismissed. Article 2 of Decree Law no. 670 orders the dismissal of civil

servants for their “membership, affiliation or connection to […] FETÖ/PDY”. It also contains

appendices with the names of those dismissed from the civil service, army and police. Article 2

of Decree Law no. 672 orders the dismissal of civil servants who have an “affiliation, link or

connection” to terrorist organisations.

Again, their names are contained in yet another list

appended to the Decree Law.

103. The criteria used to assess the links of the individuals to the Gülenist network have not

been made public, at least not officially. The Venice Commission rapporteurs were informed

that dismissals are ordered on the basis of an evaluation of a combination of various criteria,

such as, for example, making monetary contributions to the Asya bank and other companies of

the “parallel state”, being a manager or member of a trade union or association linked to

Mr Gülen, using the messenger application ByLock and other similar encrypted messaging

programmes. In addition, the dismissals may be based on police or secret service reports about

relevant individuals, analysis of social media contacts, donations, web-sites visited, and even

on the fact of residence in student dormitories belonging to the “parallel state” structures or

The Venice Commission notes that this formula does not anymore refer to “FETÖ/PDY” but to terrorist

organisations in general.

CDL-AD(2016)037

- 24 -

sending children to the schools associated with Mr Gülen. Information received from colleagues

from work or neighbours and even continuous subscription to Gülenist periodicals are also

mentioned amongst those many criteria which are used to put names on the “dismissals lists”.

104. Since the adoption of the emergency decree laws, more than 100.000 public servants

have been dismissed.

A large majority of them are those whose names were directly

mentioned in the lists appended to Decree Laws nos. 669, 670 and 672. It is not entirely clear

how many public servants were dismissed by decisions taken at the lower level, i.e. by the

relevant administrative entities or judicial bodies under Decree Law no. 667, and how many

were mentioned directly in the lists appended to the subsequent decree laws.

105. It is understood that both types of dismissals (ordered directly by the decree laws or on

the basis of the decree laws) fall outside the ordinary legal framework for disciplinary liability of

public servants. These are extraordinary measures, based on a new criterion

- the

connections to the Gülenist network and other organisations defined in Turkey as “terrorist”.

Furthermore, those dismissals do not follow a normal disciplinary procedure. The question is

whether this way of purging the State apparatus is compatible with standards derived from the

Turkish Constitution and from international law.

b. Large margin of appreciation accorded to the State in regulating public service

106. With respect to European human rights obligations, and speaking of labour disputes

involving public servants, the ECtHR in 1999 stated as follows:

“[…] [I]n each country’s public-service sector certain posts involve responsibilities in the

general interest or participation in the exercise of powers conferred by public law. The

holders of such posts thus wield a portion of the State’s sovereign power. The State

therefore has a legitimate interest in requiring of these servants a special bond of trust

and loyalty. On the other hand, in respect of other posts which do not have this ‘public

administration’ aspect, there is no such interest.”

107. The above was said in the context of a long-lasting discussion on whether or not public

servants should have access to the courts in relation to their labour disputes. The ECtHR case-

law on this topic has significantly evolved since 1999. However, the underlying idea is still

relevant: the policy regulating public service is based on the idea of loyalty, and that gives the

States a larger margin of appreciation in deciding whom to employ/dismiss, at least when the

posts “wielding a portion of the State’s sovereign power” are concerned.

Judges, prosecutors,

police officers and military personnel belong par excellence to the category of public servants

“wielding a portion of the State’s sovereign power”. This logic is a fortiori applicable in times of a

major crisis where the State has to combat a secret organisation which deeply penetrated into

its administrative mechanism.

The term “public servant” in this context encompasses civil servants, military and law-enforcement personnel,

as well as judges and prosecutors.

Including personnel of the armed forces and the police, but also administrative staff working in the ministries, in

the local administrations, teachers, doctors of public hospitals, etc.

Or, at least, it is a differently formulated old criteria. The Venice Commission supposes that belonging to a

criminal organisation was always incompatible with the civil service; however, as it will be demonstrated below,

the decree laws, as interpreted by the administrative and judicial bodies, seem to adapt the old principle to the

new circumstances.

Different Decree Laws describe those links in different words – “affiliation”, “connections” etc. The Venice

Commission understands that this may be a problem of translation and that all decree laws speak of the same

type of connection between the individual concerned and FETÖ/PDY.

Pellegrin v. France, [GC], 8 December 1999, Reports of Judgments and Decisions 1999-VIII, § 65

This margin is admittedly narrower when the measure affects employees of the State institutions who do not

perform any particular public functions.

CDL-AD(2016)037

- 25 -

108. Therefore, as a starting point the Venice Commission acknowledges that following the

coup it might have been necessary to introduce a simplified system of provisional removal

public servants from office, based on the relatively lose criterion of loyalty and following an

expedient procedure. This does not imply, however, that mass dismissals of public servants are

not a human rights issue, for which the principles of proportionality and necessity must be

respected. The first question therefore is which human rights of the public servants may be at

stake in casu.

c. Human rights at stake

109. The Turkish Constitution guarantees the right to enter public service. The Constitution

proclaims, in Article 70, that “every Turk has the right to enter the public service” (§ 1), and that

“no criteria other than the qualifications for the office concerned shall be taken into

consideration for recruitment into the public service” (§ 2). This right, arguably, implicitly

includes the right to remain in this service. However, this provision also has many implied

limitations, and in times of emergency this right becomes a particularly weak one, but it does

not disappear completely.

110. At the international level, the dismissals of public servants may raise issues under

Article 1 § 2 of the Revised European Social Charter.

In addition, Convention no. 111 of the

ILO on Discrimination (Employment and Occupation) of 1958

may be also of relevance for the

assessment of dismissals in the public sector.

111. The ECHR does not guarantee the right to a particular profession, be it in the public or in

the private sector. Therefore, as a rule, lack of access to the public service and dismissal from it

as such cannot form the basis of a complaint before the Strasbourg court.

However, this does

not mean that dismissals of public servants do not raise any other issue under the ECHR.

Some provisions of the ECHR may be applicable depending on the reasons and effects of the

dismissals.

112. Thus, where a person is dismissed for professing a particular religion, expressing an

opinion, belonging to a lawfully existing association or trade-union, or for sending children to a

religious school, such action may be seen as an interference with the rights under Articles 9,

10, or 11 of the ECHR, or under Article 2 of Protocol no. 1 thereof, accordingly (and Article 14 in

conjunction with these guarantees).

113. For example, some recent dismissals in Turkey were reportedly based on the

membership in a particular trade-union.

Dismissals of public servants for membership in a

criminal organisation are not regulated by Article 11 of the ECHR.

However, whether or not a

lawfully operating trade-union is a criminal organisation is a matter for discussion. Hence, the

applicability of Article 11 to such dismissals cannot be ruled out. In the same vein, Article 10 of

the ECHR may be applicable to cases where the dismissal has been based on the opinions

expressed by a public servant.

In the following paragraphs the Venice Commission will mostly use the term “dismissal”, because this is the

measure introduced by the emergency decree laws. This does not alter, however, its previous recommendation,

namely that the State should prefer suspensions to dismissals.

Ratified by Turkey on 27 June 2007; source - http://www.coe.int/en/web/turin-european-social-

charter/signatures-ratifications

http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C111

See ECtHR 28 August 1986, Glasenapp and Kosiek v. Germany, § 49 and § 35.; ECtHR 26 September 1995,

Vogt v. Germany, §§ 43-44; Thlimmenos v. Greece, § 41.

See the Memorandum by the Commissioner for Human Rights on the human rights implications of the

measure taken under the state of emergency in Turkey, CommDH(2016)35, p. 31

See, in the Turkish context, the admissibility decision by the ECtHR in the case of Özcan and others v. Turkey

(dec.), 13 June 2002, no. 56006/00, § 6.

See Kudeshkina v. Russia, no. 29492/05, § 79, 26 February 2009

CDL-AD(2016)037

- 26 -

114. Occasionally, the ECtHR was prepared to consider dismissals through the prism of

Article 8 of the ECHR, which guarantees, inter alia, respect for private and family life and the

home.

According to the case-law of the ECtHR, private life “encompasses the right for an

individual to form and develop relationships with other human beings, including relationships of

a professional or business nature.”

Thus, a restriction introducing “a far-reaching ban on

taking up private sector employment” was deemed to affect “private life”;

also, dismissals from

office in connection with a particular life-style or personal choices have been found to affect

“private life”.

Even the withdrawal of an internal passport, under certain conditions, may be

seen as an interference with private life.

In the Turkish context, by virtue of the emergency

decree laws, dismissals are accompanied by several additional negative consequences: a life-

long ban from working in the public sector (which, reportedly, includes the practice of law)

and

in private security companies, loss of titles and ranks, annulment of passports, nearly

immediate eviction from staff housing, etc.

The names of the persons suspected of links

to Mr Gülen are published, which, as the rapporteurs were told, reduces the chances of the

former public employees to find new jobs even in the private sector. The combined effect of

these measures may arguably bring the situation into the ambit of Article 8 of the ECHR.

115. Finally, procedural rights, guaranteed by Articles 6 and 13 of the ECHR may be at stake

(the right to a fair trial and the right to an effective remedy). The Venice Commission recalls,

that, given the effect of lustration-related proceedings in some countries the ECtHR has

interpreted these proceedings as falling under the criminal limb of Article 6 of the ECHR.

The

Human Rights Committee has developed a similar jurisprudence under the ICCPR, as such

proceedings implicate, inter alia, the rights to fair process under Article 14 and the right to an

effective remedy under Article 2 § 3 of the ICCPR.

The Venice Commission will return to this

issue below, when it examines the right of access to court and other legal remedies available to

the persons affected by the emergency decree laws.

116. In sum, a combination of reasons for which public servants are dismissed, and practical

effects which the dismissal may have on various aspects of their lives, brings into play several

guarantees of the ECHR and the ICCPR.

117. Which human rights are in play in each particular case may vary. The Venice Commission

does not know the facts which triggered specific dismissals, and cannot evaluate whether those

dismissals affected private lives or other vital interests protected by the Constitution, ECHR,

ICCPR, etc. However, it is certain that in the overwhelming majority of cases dismissals did

affect human rights of the public servants concerned.

See Oleksandr Volkov v. Ukraine, 9 April 2013, § 165-167

See C. v. Belgium, 7 August 1996, § 25, Reports 1996-III

See Sidabras and Džiautas v. Lithuania, nos. 55480/00 and 59330/00, § 47, ECHR 2004-VIII; Bigaeva v.

Greece, no. 26713/05, §§22-25, 28 May 2009

See Özpinar v. Turkey, no. 20999/04, §§43-48, 19 October 2010; see also Fernández Martínez v. Spain [GC],

no. 56030/07, § 112, ECHR 2014 (extracts)

Smirnova v. Russia, nos. 46133/99 and 48183/99, §§ 96-97, ECHR 2003-IX

See the Memorandum by the Commissioner for Human Rights on the human rights implications of the

measure taken under the state of emergency in Turkey”, CommDH(2016)35, p. 33.

See Decree Law no. 667, Article 4 (2); Decree Law no. 668, Article 2 (2); Decree Law no. 669, Article 2 (2);

Decree Law no. 670, Articles 2 (2) and 4 (1); Decree Law no. 672, Article 2 (2)

The Venice Commission didn’t examine the effect of those dismissals on the public servants’ pension rights

and other social benefits, which, by themselves, are not defended by the ECHR, but may be guaranteed by other

international instruments or by the provisions of the Turkish Constitution.

See Matyjek v. Poland (dec.), no. 38184/03, 30 May 2006, §§ 48-59. However, the Venice Commission is not

ready to assert that Article 6 should be applicable in casu.

See note 56 above; see also PACE lustration Resolution 1096(1996), para. 12.

CDL-AD(2016)037

- 27 -

118. The fact that human rights have been affected does not mean that they have been

violated. However, where a human right is at stake, the Government must ensure that any

derogation in times of emergency involves a derogable right and is necessary and

proportionate, and thus “strictly required by the exigencies of the situation”.

d. The moment when collaboration with the Gülenist network became

incompatible with the public service

119. Disciplinary liability, or any other similar measure, should be foreseeable; a public servant

should understand that he/she is doing something incompatible with his/her status, in order to

be disciplined for it. Hence, it is important to establish a moment in time at which a reasonable

and well-informed person – and public servants should be reasonable and well-informed – must

have understood that their continued connections with the Gülenist network were clearly

unacceptable.

120. The obvious difficulty in the situation at hand is that, according to the Turkish authorities,

for many years the Gülenist network had two faces: it was at the same time a secret

organisation using questionable methods to gain influence within the State, and a network of

lawfully operating associations and projects. The Turkish authorities seem to depart from a

sweeping presumption that the “lawful incarnation” of the Gülenist network had always been

merely a façade, and that all those who ever collaborated with or participated in any project

affiliated with Mr Gülen knew about the real purposes and methods of the organisation.

121. The Venice Commission considers that this presumption goes too far. The Turkish

authorities themselves do not deny that for many years official structures of the State

collaborated with the associations and projects affiliated with Mr Gülen. Given the scale of the

network and its presence in all spheres of public, social and economic life, there must have

been thousands of people who entered into contact with the network, who supported its

activities or even performed certain tasks on its behalf, without, at the same time, being aware

of a “hidden face” of this organisation.

122. In a state under the rule of law, allegations of serious crimes must be documented and

argued before an independent and impartial court of law, with due respect of the principles of

fair trial and rights of the defence. Therefore, in normal conditions, it is for a court to examine

activities of the Gülenist network and condemn it (or not) as a criminal or a terrorist organisation

that was the instigator of the coup attempt and/or other criminal actions, and to determine the

criminal involvement of any particular individual with that organisation.

123. According to the Turkish authorities, several criminal investigations have been started,

and hundreds of supposed Gülenists were indicted even before the coup. Charges against

them included instances of illegal wiretapping, trade of influence, falsification of evidence, etc.

Some of those cases have been heard by first-instance courts and ended with convictions.

However, it appears that, so far, there has been no final judgment by a court of law providing a

comprehensive analysis of the Gülenist network and declaring it a criminal or terrorist

The Venice Commission is aware that the dismissals may be based on the links to other “terrorist

organisations”; however, it will concentrate on the dismissal of public servants allegedly linked to the Gülenist

network, since it appears to be the main purpose of those measures. It should, however, be borne in mind that a

considerable number of dismissals concern alleged PKK sympathizers. These dismissals raise further questions

regarding whether they are strictly required by the exigencies of the emergency situation, as indicated above in

Section D (1).

Thus, the Turkish authorities provided a translation of the judgment of the Erzincan High Criminal Court,

decision no. 2016/127, adopted on 16 June 2016; it appears that this judgment is subject to appeal to the Court

of Cassation, but the Venice Commission has no information about the further developments with this case.

CDL-AD(2016)037

- 28 -

organisation. At least, the Turkish authorities were unable to give any precise information on

this point.

124. That being said, the Venice Commission admits that public servants might have been

expected to sever connections with the Gülenist network even without waiting for a final

judgment of such a kind and without knowing all the details concerning its alleged criminal

activities.

125. According to the Turkish authorities, the point where the “criminal” nature of the Gülenist

network must have become evident was the wiretapping incident of 17-25 December 2013.

They refer, in particular, to the statements made by the President in December 2013 - March

2014.

126. The Venice Commission observes that in several decisions of the National Security

Council (starting from the one dated 30 October 2014, quoted in the Constitutional Court

judgment of 4 August 2016), “parallel structures” were declared as posing a threat to national

security. According to the Turkish authorities, that term was widely understood as referring to

the Gülenist network. Earlier decisions of the National Security Council are worded in more

imprecise terms.

127. It is important to define, on the basis of objective facts, the moment in time when, if ever,

the Gülenist network as a whole (or any parts thereof) became an organisation “meaningful

connections”

with which became incompatible with the obligation of loyalty required from

public servants. In addition, it is important to define the moment in time when this should have

become clear to all public servants. In doing so, the Turkish authorities may take into account

official decisions by competent bodies which clearly identified the Gülenist network as a “threat

to the national security”. Lack of clarity on this point may lead to unjust dismissals which may be

seen as retroactive punishment. The Venice Commission recommends that the Turkish

authorities clarify, as soon as possible, its position on the question of timing, as discussed

above. The Turkish courts, in turn, should review whether the position of the Government on

this point is objectively justified.

e. Connections to the Gülenist network as a pre-condition for dismissal

128. The next question is the intensity of the connections which a public servant needed to

maintain with the Gülenist network or its aspects in order to be dismissed. The Decree Laws

speak of “relation, connection or contact”, “membership, affiliation or connection”, etc. Those

broad definitions imply that any sort of link to the Gülenist network may lead to dismissal.

129. The Turkish authorities explained that the assessment of this “intensity” is based on a

number of factual elements present in each case. Thus, only such links which amount to

“membership” may lead to criminal prosecution. The authorities refer to Article 314 of the

Criminal Code, which addresses membership in a criminal organisation. According to the

Turkish authorities, the difference between being a member of a criminal organisation and

having “connections”, “contacts”, “relations” etc. depends on the number of criteria fulfilled by a

person and is defined by the administrative entities applying the emergency decree laws. The

The Turkish authorities produced a copy of the decision of 10 March 2003 by the State Security Court of

Ankara (in Turkish) concerning Mr Gülen himself. In those proceedings Mr Gülen stood accused of the

establishment of an illegal organisation in order to overthrow the secular government. The criminal acts,

examined in the 2003 decision, have taken place before 1999. At the end the State Security Court cited Amnesty

Law no. 4616 and postponed the criminal procedure for 5 years without taking stand on the substance of the

accusations. There is no information about any further developments in this case.

In particular, on 18 December 2013 the President of Turkey characterized the Gülenist network as a “criminal

organisation” in a public statement. Furthermore, in a public speech of 22 March 2014 the President called on the

population not to send their kids to the Gülenist schools.

This concept will be explained in the sub-section immediately below

CDL-AD(2016)037

- 29 -

authorities gave some explanations regarding the way the criteria are used to qualify someone

as being a member of the organisation or simply having “connections” “contacts” or “relations”

with it. However, those criteria were not officially published, and their use was not described in

any regulations or case-law.

130. The Venice Commission acknowledges that the connection required to justify

suspensions (or even dismissals) may be less intensive than the one required for defining a

person as a “member” of a criminal organisation. “Membership” requires “organic relationship”

with the criminal organisation.

Removal of a public servant (temporary or permanent) may

require a weaker connection to the criminal organisation.

131. Still, this connection should be meaningful – i.e. it should raise objective doubts in his or

her loyalty, and exclude any innocent, accidental, etc. contacts. The Venice Commission

recommends amending the wording of the decree laws accordingly: a dismissal may be

ordered only on the basis of a combination of factual elements which clearly indicate that the

public servant acted in a way which objectively cast serious doubts on his or her loyalty to the

democratic legal order.

f. Lack of reasoned and individualized decisions on dismissals

132. The Venice Commission recalls that dismissals of public servants were implemented

either by a decision of the relevant administrative entity

or through the system of “lists”

appended to the emergency decree laws.

133. In its 2011 Report, the Venice Commission referred to the prohibition of arbitrariness as

one of the important elements of the notion of the rule of law. It noted that “although

discretionary power is necessary to perform a range of governmental tasks in modern, complex

societies, such power should not be exercised in a way that is arbitrary. Such exercise of power

permits substantively unfair, unreasonable, irrational or oppressive decisions which are

inconsistent with the notion of rule of law.”

The prohibition of arbitrariness is also a

fundamental principle of fair process and the protection of privacy under international human

rights law.

134. The Turkish authorities insisted that every dismissal is based on solid evidence, and

every file is considered individually; in their words, “the dismissal decisions are taken as a result

of comprehensive research and assessments conducted separately for each public servant”.

However, this claim is hard to prove, in the absence of individualised decisions. The emergency

decree laws do not establish any evidentiary standard and do not require that the final

assessment should be reasoned and based on evidence. As stressed in the memorandum of

the Human Rights Commissioner, “in such circumstances, it is conceivable that different

administrations may have interpreted the same vague criteria concerning membership or

contacts with a terrorist organisation in different ways, reaching different conclusions in similar

cases, or considering legal actions taken in good faith as establishing guilt. This is a situation

which naturally fuels all kinds of speculation concerning the reasons behind certain

dismissals.”

The Venice Commission also recalls its own earlier position that “the obligation to

On this point see the detailed analysis of the case-law of the Turkish courts in CDL-AD(2016)002, Opinion on

articles 216, 299, 301 and 314 of the Penal Code of Turkey, §§ 98 et seq.

See CDL-AD(2015)045, Interim Opinion on the Draft Constitutional Amendments on the Judiciary of Albania,

§ 122, where the Venice Commission examined such grounds for vetting of judges and prosecutors as “regular

and inappropriate” contacts with known criminals, without expressing any objections against the idea that a judge

may be dismissed for such contacts.

For the judges – by the HCJP and the plenary sessions of the upper courts

CDL-AD(2011)003rev, Report on the rule of law, § 52.

ICCPR, Articles 14 and 17.

Cited above., p. 31

CDL-AD(2016)037

- 30 -

give reasons should also apply to administrative decisions”.

It appears that this obligation has

not been followed in casu.

135. Two examples may be given. On 4 August 2016, the Constitutional Court of Turkey

decided, in a judgment, to dismiss two of its own members for their alleged links to Mr Gülen.

This judgment was based on the power (given to the Plenary of the Constitutional Court by

Decree Law no. 667, Article 3 (1)) 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 reasoning of this judgment illustrates how Decree Law

no. 667 is interpreted in Turkey. The Constitutional Court stated, in particular (see §§ 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’ […].

[T]he 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. What is important in this regard is to avoid arbitrariness

while reaching a certain conviction. Undoubtedly, while making an assessment as to

whether the above-mentioned link exists, the reasons which would lead the competent

boards to reach a certain conviction can vary depending on the characteristics of each

case.”

136. This long citation is needed to show that, for the Turkish Constitutional Court, a decision

to dismiss a judge on the basis of the extraordinary measures ordered by the first decree law

does not require any particular evidence to be described and analysed in the judgment.

Actually, the above-cited judgment does not refer to any evidence against the two judges

concerned. To decide on the dismissal, it sufficed for the majority of the Constitutional Court to

be subjectively persuaded that a link between a member of the Constitutional Court and the

Gülenist network exists. Apparently, the same approach has been used to put thousands of

public servants on “dismissal lists” appended to the decree laws, as well as for their dismissal

by administrative entities.

137. Another example is the decision of the HCJP of 31 August 2016, no. 2016/428.

By this

decision, the HCJP ordered dismissals of several thousands of judges and prosecutors and

listed their names in the appendix. This decision was adopted on the basis of the extraordinary

powers given to the HCJP by Article 3 (1) of Decree Law no. 667.

138. This decision runs to 60 pages (without the lists of the names). It contains numerous

examples of unlawful and even criminal activities of “FETÖ/PDY”, outlines the teachings

of Mr Gülen, the methods used by the network to recruit new members, to penetrate State

institutions and collect funds. It describes the structure of this secret organisation and the

See the Rule of Law Checklist, cited above, § 68

http://www.hcjp.gov.tr/Eklentiler/files/Reasoned-Decision-of-Dismissal.pdf

CDL-AD(2016)037

- 31 -

means of communication amongst its members. The decision mentions several specific cases

where judges and prosecutors allegedly affiliated with “FETÖ/PDY” fabricated evidence and

abused their powers to wrongly accuse their opponents.

139. In sum, this decision reads as a comprehensive report revealing the criminal nature of the

Gülenist network. However, this decision does not refer to any specific evidence which would

support allegations against thousands of judges and prosecutors whose names are mentioned

on the appended list. Maybe such evidence exists, but it is not mentioned in the decision of the

HCJP and, hence, the existence of the link between the dismissed judges and prosecutors and

the Gülenist network cannot be objectively ascertained.

140. In sum, the Venice Commission concludes that the decision-making process which led to

the dismissals of public servants was deficient in the sense that the dismissals were not based

on individualised reasoning, which made any meaningful ex post judicial review of such

decisions virtually impossible (on this point see Section G below).

g. Lack of administrative due process before dismissals

141. The Human Rights Commissioner of the Council of Europe noted in his memorandum,

cited above, that the emergency decree laws do not require any adversarial proceedings before

the dismissals of public servants are ordered. He stressed that, “at a minimum, persons should

be able to have access to evidence against them and make their case before a decision is

taken”.

142. The absence of individualised reasoned decisions has been discussed above. As to the

procedures which precede dismissals, the Venice Commission fully shares the position of the

CoE Human Rights Commissioner: such procedures should correspond to some minimal

requirements of administrative due process.

143. The Venice Commission considers that the public servants concerned should have been

able, at least, to know the evidence adduced against them and be allowed to comment on that

evidence before any decision on dismissal was taken.

h. Associated measures (evictions, withdrawal of passports, access to

communications)

144. Article 5 (1) of Decree Law no. 667 provides that the passports of those dismissed from

public service shall be cancelled. According to the Information Note on this decree law this

measure is taken “for safety of investigation and prevention of absconding.” However,

withdrawal of passport may also concern, by virtue of Article 10 of Decree Law no. 673,

spouses of those dismissed, “where it is considered as detrimental in terms of general safety.”

In addition, dismissed public servants “shall be evicted from publicly-owned houses or houses

owned by a foundation in which they live within fifteen days”.

Pursuant to Article 3 (1) of

Decree Law no. 670, “all kinds of information and documents including those related to

interception of communication through telecommunication which are required by the competent

boards, commissions or other authorities shall be provided by all the public and private

institutions and organizations [italics added] without delay”, and this measure concerns not only

the persons who are under inquiries with respect of their possible dismissal, but also their

spouses and children.

Pp. 30-32

It is unclear whether those measures have been maintained or cancelled in the subsequent decree laws.

See Decree Laws no. 667, Article 3 (1); no. 668, Article 2 (2); no. 669 Article 2 (2) and similar provisions in the

subsequent decree laws.

CDL-AD(2016)037

- 32 -

145. All those measures seriously affect family members of public servants, i.e. people who

may have nothing to do with the Gülenist network. Interfering with privacy, home and the

freedom of movement of people belonging to the close circle of those public servants requires

particularly strong reasons.

146. The Venice Commission also recalls that the main purpose of the emergency regime is to

restore normal functioning of the democratic institutions, dismantle the conspiracy and prevent

a new coup. It is not clear to the Venice Commission how such measures as eviction of the

family of the public servant from the publicly owned housing may contribute to this goal. To the

extent that these measures have a punitive character and imply a kind of “guilt by association”,

they cannot be deemed to be “strictly required by the exigencies of the situation”, in the opinion

of the Commission.

i. Dismissals of judges

147. According to the Turkish authorities, the judiciary, together with the army, has been one of

the most “penetrated” State institutions.

Article 3 of Decree Law no. 667 gave to the supreme

judicial instances (the Constitutional Court, the Court of Cassation, the Supreme Administrative

Court, the Court of Accounts) the power to dismiss their members linked to Mr Gülen. Lower

court judges were to be dismissed by a decision of the HCJP. Pursuant to this decree law, two

Constitutional Court judges have been dismissed, and thousands of judges working at all levels

of jurisdiction lost their jobs. In toto, 3,673 judges have been dismissed from their positions on

the basis of the emergency decree laws;

100

that figure includes 173 judges from the top courts,

and five members of the HCJP. 198 judges have been reinstated to their positions later by the

HCJP.

148. Although judges have not been dismissed directly by the decree laws but by the decisions

of the respective supreme courts and the HCJP, everything said above in respect of collective

dismissals of public servants commanded directly by the decree laws is applicable to the

judges. One aspect of the situation, however, stands out: judges represent a special category

of public servants, whose independence is guaranteed at the constitutional and international

levels (see the ICCPR, Article 14 § 1, and the ECHR, Article 6 § 1). Therefore, any dismissals

within the judiciary or the regulatory bodies of the judiciary such as the HCJP, for example,

should be subjected to particularly exacting scrutiny, even in times of a serious public

emergency. Such dismissals not only affect human rights of the individual judges concerned,

they may also weaken the judiciary as a whole. Finally, such dismissals may create a “chilling

effect” within the judiciary, making other judges reluctant to reverse measures declared under

the emergency decree laws out of fear of becoming subjects of such measures themselves.

These measures may have adverse effects on the independence of the judiciary and the

effectiveness of the separation of powers within the State. This “institutional dimension” of the

measures taken in respect of judges thus deserves special attention.

149. The Venice Commission reiterates that Decree Law no. 667 entrusts the power to dismiss

to the HCJP, as far as lower court judges are concerned, or to the top courts, in respect of their

members. This scheme is probably not fully in line with the ordinary rules of the dismissal of

judges for disciplinary breaches; however, in the circumstances, entrusting those powers to the

top courts and to the HCJP appears to be an acceptable solution, showing respect to the

independence of the judiciary and its governing bodies.

See Article 8 of the ECHR, Article 17 of the ICCPR, CCPR, General Comment No. 16: Article 17 (Right to

Privacy) (1988).

See, for example, a press report of a testimony of a former judge-member of the HCJP:

http://www.hurriyetdailynews.com/govt-gülenists-bargained-over-top-judiciary-posts-former-justice-

says.aspx?pageID=238&nID=106231&NewsCatID=509

100

Statistics obtained on 15 November 2016 from the High Judicial and Prosecutorial Council of Turkey.

CDL-AD(2016)037

- 33 -

150. That being said, all other remarks made in respect of the procedure for the dismissal of

other public servants remain valid regarding the dismissals of judges. The Venice Commission

reiterates that every decision ordering the dismissal of a judge needs to be individualised and

reasoned, must refer to the verifiable evidence, and that the procedures before the HCJP have

to respect at least minimal standards of due process. The Venice Commission also recalls that,

according to its well-established position, an appeal against disciplinary measures should

normally be available to the dismissed judges (on the judicial remedies available to public

servants in general see Sections F and G below).

101

2. Measures related to criminal proceedings

a. Description of measures

151. Decree Law no. 667 introduced certain rules aimed at simplifying the task of the

investigative bodies, prosecution and courts in examining cases related to a number of serious

offences. The essential changes introduced by Decree Law no. 667 are as follows:

102

 the dead-line for bringing an arrested person to a judge is extended to 30 days;

103

 the police may take witness statements and will deal with cases concerning military

personnel;

 oral consultations between the detainees and their lawyers may be recorded for security

reasons, and the documents they exchange may be seized; the timing of such

consultations may be regulated, and the lawyer may be replaced, at the request of the

prosecution, by the Bar;

 the prosecution may bar an advocate from taking up his/her duties if an investigation is

pending against this person related to enumerated offences;

 an accused may be represented by a maximum of three lawyers at a hearing;

 a bill of indictment or “documents which substitute for the bill of indictment” may be

“read out or summarized and explained” before the start of the trial;

 review of detention or examination of the applications for release may be conducted on

the basis of written materials contained in the case-file (i.e. without hearing the person

concerned);

 the detainee may only be visited by his/her closest relatives, and his/her telephone

contacts should be limited to ten minutes every fifteen days.

152. Subsequent decree laws further amended rules of criminal procedure. Thus, Decree Law

no. 668, in its Article 3 (1), introduced the following essential measures:

 any application for release or appeal against a detention order shall first be examined

by the magistrate who took the decision and only after ten days forwarded to the

competent reviewing authority;

 any application for release will be decided also within 30 days and without an oral

hearing, on the basis of the case-file;

 in urgent cases searches in private premises and offices (including lawyers’ offices)

may be authorised by a prosecutor; such seizures should be submitted to a judge for

review within five days; this procedure also applies to inspection of computers,

databases, software, etc.;

101

See CDL-AD(2007)028, Report on Judicial Appointments by the Venice Commission, § 25; See also CDL-

AD(2014)008, Opinion on the draft Law on the High Judicial and Prosecutorial Council of Bosnia and

Herzegovina, § 110

102

This is not the full list; other changes of lesser importance are not examined by the Venice Commission.

103

According to the Government memorandum, p. 70, by 28 October 2016, out of 45,225 persons who were

arrested within the scope of FETÖ/PDY investigations, 61,1% (27,514 persons) remained in detention without

access to a judge for 1-5 days, 24,1% (11,042 persons) for 6-10 days, 9,4% (4,139 persons) for 11-15 days,

3,7% (1,760 persons) for 16-20 days, 1,2% (478 persons) for 21-25 days, and 0,5% (292 persons) for 26-30

days.

CDL-AD(2016)037

- 34 -

 in urgent cases a prosecutor may order undercover investigative measures (such as

wiretappings) which are subject to ex post judicial examination;

 the prosecution may seize and inspect correspondence between defendants and

“privileged witnesses” (such as spouses and lawyers, for example);

 if the purpose of the investigation may be compromised, the defence counsel’s right to

examine the contents of the case-file or take copies may be restricted by the decision of

the prosecutor;

 the right of the arrested person to see a lawyer may be restricted for five days by the

prosecutor, but no formal statements shall be taken during this time from the accused.

153. As a preliminary remark, the Venice Commission notes that under Article 6 (1) of Decree

Law no. 667 and Article 3 (1) of Decree Law no. 668 those measures are introduced “during the

period of state of emergency” and “with regard to the offences enumerated under Fourth, Fifth,

Sixth and Seventh Sections of Fourth Chapter of Second Volume of the Turkish Criminal Code

no. 5237 dated 26 September 2004, the offences falling under the Anti-Terror Law no. 3713

dated 12 April 1991 and the collective offences”.

154. Regrettably, some of the temporary provisions of the two first decree laws have been

made permanent in Decree Law no. 676, dated 29 October 2016 – or, at least, that may be

inferred from the wording of Decree Law no. 676. Thus, under its Article 1, “the principle of

three lawyers” is henceforth a part of the Criminal Procedure Code for all organised crime

cases. This Decree Law, in Article 2, also provides that it suffices for the lawyer to be accused

of a specific crime in order to be excluded from the representation of a client. The possibility to

be detained without the access to a lawyer has also been made permanent, albeit only for a 24-

hours’ period (Article 3). Finally, the rules imposing limitations on confidential contacts between

a detained person and his or her lawyer have been made permanent, and introduced in

Law no. 5275.

155. This shows that there is a risk of de facto “permanentisation” of certain extraordinary

measures, which may be afterwards made permanent de jure through the Parliament’s

approval of the emergency decree law introducing such measures. That represents, in the eyes

of the Venice Commission, a danger for democracy, human rights and the rule of law. As

stressed above, permanent changes of the legislation should not be enacted in the framework

of an emergency regime: their permanent necessity should rather be debated in ordinary

parliamentary procedures, without any time pressure and far from emotional reactions caused

by the dramatic events which led to the state of emergency.

b. Limits to derogation from the States’ procedural human rights obligations during

the times of emergency

156. The modifications to the rules of criminal procedure affect a large array of “procedural

rights” guaranteed by the Turkish Constitution and by international human rights law, such as,

in particular, the right to liberty (in relation to arrests and custody procedures and the right to be

brought promptly before a court), and the right to a fair trial (in relation to access to lawyers,

confidentiality of lawyer-client contacts, and extension of the search and seizure powers of the

prosecuting authorities). Amendments related to the search and seizure powers and secret

surveillance, and limitations on the contacts of the detainees with their relatives also affect the

right to privacy, family life, respect of secrecy of communications and the home. The first

question is how far may the State depart from these rights in an emergency situation.

157. In the wording of Article 15 § 2 of the ECHR, procedural rights are not part of the non-

derogable rights. However, Article 15 § 1 stipulates that derogation measures should be “strictly

required”, which ordinarily means that basic safeguards of protection against abuse of power

and arbitrary behaviour should still be in place even after the derogation.

CDL-AD(2016)037

- 35 -

158. It should also be recalled that measures which a Contracting Party may take under

Article 15 § 2 must not be “inconsistent with its other obligations under international law”.

Turkey has ratified the ICCPR. Article 4 of the ICCPR contains a list of non-derogable

provisions. The Human Rights Committee in its General Comment No. 29, cited above, held

that in addition to the rights specifically listed in Article 4 of the ICCPR, there were certain other

obligations under the Covenant that were non-derogable:

104

“States parties may in no circumstances invoke article 4 of the Covenant as justification

for acting in violation of humanitarian law or peremptory norms of international law, for

instance by taking hostages, by imposing collective punishments, through arbitrary

deprivations of liberty or by deviating from fundamental principles of fair trial, including the

presumption of innocence”.

159. In his report on the question of Human Rights and the State of Emergency (1997), the UN

Special Rapporteur makes the following recommendations (with regard to the principle of

proportionality, italics added): “When a state of emergency affects the exercise of certain

derogable human rights, administrative or judicial measures shall be adopted to the extent

possible with the aim of mitigating or repairing the adverse consequences this entails for the

enjoyment of the said rights”.

105

160. Examples from other jurisdictions confirm that certain procedural rights may be seen as

implicitly non-derogable. Thus, the American Convention on Human Rights explicitly prohibits

the suspension of “the judicial guarantees essential for the protection of such rights” which are

underogable (Article 27 § 2 of the ACHR). The Inter-American Court of Human Rights in its

advisory opinion on “Habeas Corpus in Emergency Situations”

106

has advised that the states

may not suspend the rights to a judicial remedy to test the lawfulness of detention (Article 7 § 6

of the ACHR) and the right to judicial protection (Article 25 § 1 of the ACHR).

161. It could therefore be argued that Turkey has an obligation under Article 15 § 2 of the

ECHR to act in compliance with Article 4 § 2 of the ICCPR, as interpreted by authoritative

bodies, and that the right to access to justice (at least in respect to fundamentally fair process

and in relation to other non-derogable rights) is also implicitly non-derogable. In the light of what

was said above on the protection of procedural rights in a state of emergency situation, Turkey

under the ECHR and the ICCPR cannot derogate from “fundamental principles of fair trial” or

the prohibition on arbitrary detention, and cannot deny remedies against human rights

violations.

107

162. The Venice Commission acknowledges that “non-derogability” may only relate to the core

of those procedural rights; probably, certain associated procedural guarantees may be either

set aside or significantly reduced in scope, to the extent strictly required by the emergency

situation. Otherwise declaring the emergency situation would make no practical sense.

163. The Venice Commission is not in a position to assess all measures proposed by the

emergency decree laws in the sphere of criminal procedure law. It will therefore concentrate on

two particularly important modifications, namely those related to the pre-trial custody and

access to a lawyer.

104

Para 11; see also § 34 above.

105

Report by the UN Special Rapporteur on the question of Human Rights and the State of Emergency (1997),

para 91 (3).

106

Advisory Opinion OC-8/87, of January 30, 1987, published at American Society of International Law,

International Legal Materials Vol. 27, No. 2 (March 1988), pp. 512-523.

107

The Venice Commission observes that the right to be presumed innocent cannot be derogated from in times

of emergency according to Article 15 of the Turkish Constitution; it implicitly means that the fair trial guarantees

are de facto non-derogable also under the national Constitution, since fair trial is a pre-condition of the

presumption of innocence.

CDL-AD(2016)037

- 36 -

c. Measures related to arrest and detention in custody

164. Article 5 of the ECHR and Article 9 of the ICCPR protect individuals against arbitrary

deprivation of liberty by the State. So far, tens of thousands of suspects have been detained in

Turkey in connection with their alleged participation in the conspiracy.

108

165. Two elements of Article 5 of the ECHR are particularly important in connection with those

mass arrests. The first is the requirement that detention must be ordered on the basis of a

“reasonable suspicion” against the suspect. Although the standard of proof for arresting a

suspect is not the same as for a criminal conviction, the authorities have to “furnish at least

some facts or information capable of [showing] that the arrested person was reasonably

suspected of having committed the alleged offence.”

109

166. Another important safeguard is the requirement that any arrested person should be

“promptly brought before a judge” (Article 5 § 3 of the ECHR) and should have the right to

request his or her release (Article 5 § 4 of the ECHR). Both §§ 3 and 4 of Article 5 speak

essentially about the same basic guarantee – speedy judicial scrutiny of detention.

167. On the basis of Article 6 (1) of Decree Law no. 667, during a state of emergency a

suspect may be held in custody without being brought before a judge for maximum of thirty

days (see also Article 3 (1) of Decree Law no. 668).

168. On several occasions the ECtHR has underlined the importance of the guarantee

afforded by Article 5 § 3 to an arrested person. The Court stated that “such automatic expedited

judicial scrutiny provides an important measure of protection against arbitrary behaviour,

incommunicado detention and ill-treatment”.

110

The Court recognises however that, as in the

context of anti-terrorism legislation, there exist exceptional circumstances or special difficulties

justifying a longer period than normal before the authorities bring the arrested person before a

judge.

111

In case a State enters derogation under Article 15, this period can be extended. In the

Brannigan and McBride judgment,

112

the Court held that the United Kingdom had not exceeded

their margin of appreciation to the extent that suspected terrorists were allowed to be held for

up to seven days without judicial control. In the case of Aksoy v. Turkey the Court took however

the stance that a period of detention without judicial control for fourteen days without being

brought before a judge did not satisfy the requirement of “promptness”, even despite the

existence of a derogation.

113

169. The Venice Commission has serious doubts as to whether the 30-day rule is compatible

with the human rights obligations of Turkey. The current situation may probably be

distinguished from the state of emergency situation examined in Aksoy. For example, it is clear

that mass dismissals will affect the smooth functioning of the judiciary and cause delays in the

judicial review of detention matters. Next, Decree Law no. 668, in its Article 3 (1) puts a stricter

limit to incommunicado detention (5 days), whereas in Aksoy the detention was not only

unsupervised by a judge, but also without the legally enforceable right of access to a lawyer,

doctor, friend or relative. However, it is clear that by extending the limit of unsupervised

detention to 30 days, the Turkish authorities are going beyond the limit which has been

previously seen by the ECtHR as acceptable following a derogation. The Venice Commission

thus recommends reducing this time-limit. As the Commissioner for Human Rights stated, “this

108

See a summary of Amnesty International’s concerns regarding the failed coup attempt in Turkey and its

aftermath, 6 September 2016.

109

O’Hara v. the United Kingdom, no. 37555/97, §35, ECHR 2001-X

110

Magee and Others v. the United Kingdom, nos. 26289/12, 29062/12 and 29891/12, §74, ECHR 2015 (extracts)

111

Magee and Others, cited above; § 78, with further references; see also Brogan and Others v. the United

Kingdom, 29 November 1988, §§ 60 et seq., Series A no. 145-B; or, in the context of Turkey, Demir and Others v.

Turkey, 23 September 1998, §§ 49 et seq., Reports of Judgments and Decisions 1998-VI

112

Cited above, § 36

113

Aksoy v. Turkey, 18 December 1996, §§ 65 and 84, Reports of Judgments and Decisions 1996-VI

CDL-AD(2016)037

- 37 -

should be facilitated by the fact that the number of arrests have diminished since the coup

attempt and in the light of the information provided by the Minister of Justice during the visit that

in 95% of the cases so far the period of custody did not exceed 3-4 days in practice.”

114

d. The right to be effectively defended by a lawyer

170. Under the decree laws, the right of everyone charged with a criminal offence to be

effectively defended by a lawyer, guaranteed by Article 6 § 3 (c) of the ECHR, may be restricted

(see above). In particular, under Decree Law no. 668, the right of a suspect in custody to

consult with the lawyer may be limited for a maximum of five days. Amnesty International

reports several cases of detainees being held incommunicado for four days or more by the

police, without being able to inform their families of where they were or what was happening to

them.

115

It should be recalled in this respect that “an accused’s right to communicate with his

advocate out of hearing of a third person is part of the basic requirements of a fair trial. If a

lawyer were unable to confer with his client and receive confidential instructions from him

without such surveillance, ‘his assistance would lose much of its usefulness’ […]”.

116

171. Timely and unrestricted access to a lawyer of one’s choice is relevant in the context not

only of Article 6, but also of Articles 3 and 5 of the ECHR (prohibition of torture and the right to

liberty; see also Articles 7 and 9 of the ICCPR, which include non-derogable rights). In the

Aksoy judgment, the ECtHR held that “the denial of access to a lawyer, doctor, relative or friend

and the absence of any realistic possibility of being brought before a court to test the legality of

the detention meant that he was left completely at the mercy of those holding him.”

117

172. Moreover, in the recent case of Ibrahim and others the ECtHR stated: “Prompt access to

a lawyer constitutes an important counterweight to the vulnerability of suspects in police

custody, provides a fundamental safeguard against coercion and ill-treatment […] The first

question to be examined is what constitutes compelling reasons for delaying access to legal

advice. The criterion of compelling reasons is a stringent one: having regard to the fundamental

nature and importance of early access to legal advice, in particular at the first interrogation of

the suspect, restrictions on access to legal advice are permitted only in exceptional

circumstances, must be of a temporary nature and must be based on an individual assessment

of the particular circumstances of the case […]”.

118

173. The Venice Commission would like to stress the need for “individual assessment of the

particular circumstances of the case”. Indeed, under the ECHR, a decision to restrict access to

legal aid or put conditions limiting confidentiality of lawyer-client contacts may be based on a

combination of several presumptions of fact, convincingly showing the presence of a security

risk. Thus, as the ECtHR stressed in Khodorkovskiy and Lebedev, “there could be legitimate

restrictions related to the security risks posed by the defendant. The existence of any ‘security

risk’ may be inferred from the nature of the accusations against him, by the detainee’s criminal

profile, his behaviour during the proceedings, etc. Thus, the Court has tolerated certain

restrictions imposed on lawyer-client contacts in cases of terrorism and organised crime […]”.

119

114

See the Memorandum of the Commissioner, cited above, p. 25.

115

A summary of Amnesty International’s concerns regarding the failed coup attempt in Turkey and its aftermath,

6 September 2016.

116

Khodorkovskiy and Lebedev v. Russia, nos. 11082/06, 13772/05, §627, 25 July 2013.

117

Cited above, § 83.

118

Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08, 50571/08, 50573/08 and 40351/09, §§255,

ECHR 2016, §§ 255 and 258

119

Cited above, § 628

CDL-AD(2016)037

- 38 -

174. However, the use of presumption of facts does not exclude the need for individualised

examination of the circumstances of each particular case. Such limitations as described in the

decree laws should not be generally imposed and should not become a routine procedure, but

remain a rare and narrowly circumscribed exception. This is particularly true where, as here,

there are valid concerns regarding allegations of ill-treatment and torture (see sub-section 3,

below). Decisions imposing temporary limitations on contacts with the lawyer may be imposed

only in exceptional situations in individual cases, where the existence of security risks is

convincingly demonstrated, should be reasoned with reference to the facts of the case, should

be notified to the defence, and the court should be able to review the validity of any such

limitations.

120

e. Grounds for bringing suspects to criminal liability

175. The emergency decree laws did not alter substantive grounds for bringing alleged

members of the Gülenist network to criminal liability for the crimes they had allegedly

committed. It appears that the Criminal Code, as well as the case-law (in particular the case-

law defining the corpus delicti of membership in an armed criminal organisation) still applies.

121

176. The Venice Commission was informed that criminal cases are initiated on the basis of the

same list of criteria which is used for the dismissals. The Venice Commission agrees that the

co-existence of several factual elements, which point at a possible connection of an individual

with the conspiracy, may be an acceptable starting point for opening an investigation. However,

the evidentiary threshold for arresting that person (“reasonable suspicion”), and, a fortiori, for

convicting him or her (“beyond reasonable doubt”) should be much higher. In view of the non-

individualised manner in which mass dismissals were ordered under the emergency regime,

the Venice Commission feels obliged to reiterate that criminal conviction requires a particularly

high standard of proof, and should be based on convincing evidence of individual guilt, which

shows that the accused willingly joined a criminal organisation and was aware of its goals and

methods.

3. Allegations of ill-treatment and torture

177. The Venice Commission is very concerned by the reports containing allegations of ill-

treatment and even torture exercised by the Turkish authorities against those arrested after the

coup.

122

The Venice Commission has no mandate or resources to examine individual cases;

hence, it will abstain from making any findings in this respect. However, the Venice

Commission draws the attention of the Turkish authorities to the evident fact that measures

adopted following the coup and described in sub-section 2 above

123

remove crucial safeguards

that protect detainees from abuse, and hence increase the likelihood of ill-treatment and torture.

The Commission also underscores that the prohibition on torture and cruel, inhuman or

degrading treatment or punishment is a non-derogable human rights obligation under both the

ECHR and the ICCPR. No emergency situation may justify such abuse.

120

For example, decision of the prosecution to open an investigation against a lawyer is not an ultimate proof that

the lawyer has abused his professional status and should be removed from the case; the tribunal reviewing the

removal of the lawyer should verify whether there has been any objective ground for the opening the

investigation, in the first place.

121

See, in particular, CDL-AD(2016)002, Opinion on articles 216, 299, 301 and 314 of the Penal Code of Turkey,

§§ 95 et seq.

122

See, for example, the report by the Human Rights Watch of 24 October 2016,

https://www.hrw.org/report/2016/10/24/blank-check/turkeys-post-coup-suspension-safeguards-against-torture.

123

Such as extending the maximum length of police detention to 30 days denying detainees’ access to a lawyers

for up to five days, restricting their right to a lawyer of their choice and their right to confidential conversations

with their lawyers.

CDL-AD(2016)037

- 39 -

4. Dissolution of private associations and companies and confiscation of their

assets

178. Article 2 of Decree Law no. 667 orders liquidation of organisations “which belong to,

connect to, or have contact with” the “FETÖ/PDY”. These organisations include private health

institutions, private education institutions, private dormitories and lodgings for students,

foundations and associations and their commercial enterprises, trade-unions, federations, etc.

A list of legal entities to be liquidated is attached to the Decree Law. Under Article 2 (2) all

assets of those companies are transferred to the State without any compensation. Decree Law

no. 668 orders liquidation of private media outlets.

179. These measures constitute a far-reaching interference with several rights provided by the

ECHR, namely the freedom of association (Article 11), and the right to peaceful enjoyment of

possessions (Article 1 of Protocol no. 1 to the ECHR). Liquidation of media outlets may raise

issues under Article 10 of the ECHR (freedom of expression),

124

whereas liquidation of

educational institutions may affect the students’ right to education (Article 2 of Protocol no. 1 to

the ECHR). They also implicate parallel obligations under, inter alia, Articles 19 and 21

regarding freedom of expression and association under the ICCPR.

125

180. As stressed above, the Venice Commission considers that temporary suspension of the

activities of private institutions allegedly linked to the Gülenist network and provisional freezing

of their assets would not be less effective and would be more consistent with rights and

freedoms of the individuals than their definite liquidation and confiscation of their property. The

Venice Commission stresses that this measure affects not only legal entities concerned, but

thousands of innocent people related to them – employees, contractors, students, patients, etc.

Article 2 (2) of Decree Law no. 667 stipulates that “under no circumstances shall any claim or

demand related to all kinds of debts of those listed in paragraph one be made against the

Treasury.” This may be understood as meaning that the State confiscates the assets of the

liquidated entities, but does not accept their liabilities. Such provision may unjustly penalise

other economic actors, which had contractual, labour and other relations to the liquidated

entities without, however, being involved in their allegedly unlawful activities.

126

181. Similarly to mass dismissals of public servants, the Venice Commission regrets that the

closing down of private institutions was done without any individualised decisions, was not

based on verifiable evidence, and that due process requirements were seemingly not fulfilled.

The State may have a somewhat larger discretion when it comes to the organisation of its own

apparatus, and to the questions of appointments and dismissals of public servants. However, in

this part the decree laws are aimed at private institutions, independent from the State. So, it is a

fortiori important to introduce safeguards which would protect private institutions from arbitrary

dissolution and stripping of their assets. This concern is particularly acute where the actions

target media outlets vital to the exercise of freedom of expression.

182. To the extent that all such measures cannot be deemed as “strictly required by the

exigencies of the situation” the Venice Commission urges the authorities to cease taking such

measures and reverse or remedy unjustified measures already taken.

124

The question of media freedom under the state of emergency regime in Turkey will be discussed by the

Venice Commission in a separate opinion.

125

See CCPR, General Comment No. 34, Article 19: Freedoms of opinion and expression (2011).

126

Decree Law no. 675 seems to address this issue, at least partially, by excluding liability of financial institutions

which had accounts of the organisation liquidated under the emergency decree laws. This decree law also seems

to order the transfer to the State of all claims directed against the liquidated entities; however, it is difficult to

assert whether, by virtue of this Decree Law, the State accepts all liabilities of the companies which have been

liquidated within the limits of their assets.

CDL-AD(2016)037

- 40 -

F. Constitutional review

183. The Council of Europe Commissioner for Human Rights in a report of 2001 argued that

the large margin of appreciation the Council of Europe member states enjoy under Article 15 of

the ECHR must be counterbalanced by effective domestic scrutiny: “[it is] precisely because the

Convention presupposes domestic controls in the form of a preventive parliamentary scrutiny

and posterior judicial review that national authorities enjoy a large margin of appreciation in

respect of derogations. This is, indeed, the essence of the principle of the subsidiarity of the

protection of Convention rights”.

127

He further stressed that “effective domestic scrutiny must,

accordingly, be of particular importance in respect of measures purporting to derogate from the

Convention: parliamentary scrutiny and judicial review represent essential guarantees against

the possibility of an arbitrary assessment by the executive and the subsequent implementation

of disproportionate measures”.

128

184. As to the parliamentary control, as the Venice Commission observed above, for over two

months Parliament did not exercise its controlling powers over the specific decree laws. Even

after Parliament resumed its work in October 2016, it did not fully comply with the 30-day time-

limit for reviewing the emergency decree laws.

185. Moreover, the Venice Commission agrees that “since in a parliamentary democracy the

executive is normally composed of party leaders and other leading party figures, […] legislative

control may not be sufficiently effective in practice to curb the abuse of executive power.

Therefore, in a State based on the rule of law, legislative control must be supplemented by

appropriate and effective means of judicial control”.

129

Thus, in the following sub-sections the

Venice Commission will analyse judicial and other legal remedies existing in Turkey in the

context of the current emergency regime.

186. From the outset, the Venice Commission notes an obvious paradox related to the

constitutional and judicial review of the emergency measures. On 4 August 2016 the

Constitutional Court dismissed two of its members, thus confirming, in essence, the validity of

Decree Law no. 667 which served as a legal basis for that very decision. Furthermore, the

Court of Cassation and other supreme courts of Turkey, as well as the HCJP, dismissed

thousands of judges using the extraordinary powers given by Decree Law no. 667. This means

that challenging the legitimacy of the process of mass dismissals of judges and prosecutors

before those courts will have little chance of success. The judges and prosecutors may

probably still seek review of their individual cases, or challenge other aspects of the decree

laws (for more details on this see below), but the general legitimacy of the scheme of

dismissals de facto cannot be put into question.

1. Constitutional review

in abstracto

a. Constitutional review of the decree laws before their approval by Parliament

187. As regards the decision to declare a state of emergency, it cannot be subject to review by

the Constitutional Court either before or after its approval by Parliament, because the approval

is not done in the form of a law. In its opinion on the Draft Constitutional Law on “Protection of

the Nation” of France, the Venice Commission acknowledged that “comparative constitutional

law offers no clear and unequivocal answer on whether it is appropriate for declarations of a

state of emergency to require judicial review, something that might be awkward given the highly

127

Opinion of the Commissioner for Human Rights, Mr Alvaro Gil-Robles, On certain aspects of the United

Kingdom 2001 derogation from Article 5 par. 1 of the European Convention on Human Rights CommDH(2002)7,

paragraph 9.

128

Ibid., paragraph 8.

129

See E. Özbudun, Emergency Powers and Judicial Review, in CDL-STD(1996)017, Human Rights and the

functioning of the democratic institutions in emergency situations - Science and technique of democracy, No. 17

(1996), p. 12

CDL-AD(2016)037

- 41 -

political nature of such decisions”.

130

Thus, the fact that the declaration of 20 July 2016 has not

been reviewed by the Constitutional Court does not appear to be problematic in itself.

131

188. As to specific decree laws, Article 148 § 1 of the Constitution in principle prevents their

constitutional review:

“No action shall be brought before the Constitutional Court alleging unconstitutionality as

to the form or substance of decrees having the force of law issued during a state of

emergency […].”

189. In its previous jurisprudence, the Turkish Constitutional Court gave a liberal interpretation

to this provision. Thus, it declared itself competent to examine 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.

132

190. In September 2016 the CHP, the main opposition party, challenged Decree Law no. 667

before the Constitutional Court, inter alia because this Decree Law introduced permanent (as

opposed to temporary) measures. However, on 13 October 2016, the Constitutional Court

rejected the appeal and denied a review of the Decree Law in abstracto. As it was explained to

the rapporteurs of the Venice Commission, the Constitutional Court abandoned its old case-law

and preferred to stick to a literal interpretation of Article 148 § 1 which prevents, in absolute

terms, any review of the emergency decree laws.

191. The Turkish Constitutional Court is better placed to interpret the Constitution. However,

the constitutional situation which emerged after the declaration of the state of emergency is a

source of concern for the Venice Commission. The declaration itself did not define the scope of

the Government’s emergency powers. Similarly, Parliament, when approving the declaration,

did not circumscribe in any manner the Government’s mandate. The Constitution contains

certain general principles which should not be contravened even in the times of emergency, but

since Parliament did not give general instructions to the Government and did not exercise its

controlling functions over specific decree laws until October, the Government, during this

period, had unfettered power to rule the country without any checks and balances but its own

good will. This situation is dangerous for a democratic legal order, especially in view of the

virtually irreversible character of measures taken by the Government.

192. The Venice Commission recalls its earlier observations made on account of the obvious

inconsistency between the 1983 Law and the decree laws enacted by the Government in 2016.

If the Turkish Government considers that the emergency decree laws as such may amend or

supplement the 1983 Law, these decree laws should be treated as any other legislative act and

be therefore subject to supervision by the Constitutional Court in the same way as “normal”

laws. If, by contrast, those decree laws have a subordinate status, and, as such, cannot be

subject to the constitutional review, they should fully comply with the 1983 Law. And, in any

event, the Constitutional Court should have the power to assess the constitutionality of the laws

by which Parliament ratifies the emergency decree laws (see immediately below).

130

CDL-AD(2016)006, Opinion on the Draft Constitutional Law on “Protection of the Nation” of France, § 61

131

The Venice Commission stresses that the appropriateness of the declaration of emergency and the measures

taken in response are subject to the review, inter alia, before the ECtHR.

132

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. 4

Edition – 2009.

States of emegency and fundamental rights. Turkey. Fundamental Rights during States of emergency in Turkey”,

p. 9.

CDL-AD(2016)037

- 42 -

b. Constitutional review of the decree laws after their approval by Parliament

193. The rapporteurs have been informed that once an emergency decree law is confirmed by

Parliament, that decision is subject to appeal to the Constitutional Court, since the approval is

done in the form of a law, and laws are subject to constitutional review in abstracto. Thus, at

present the Government’s powers can be subjected both to parliamentary control and, as

regards those decree laws which have been approved by Parliament, to the control of

constitutionality by the Constitutional Court (at the request of a competent body).

194. It remains to be seen how speedy and effective the control of constitutionality will be, and

what its scope would be. At present, it is not clear whether the Constitutional Court will declare

itself competent to assess the substance of the measures enacted by the decree laws, as

approved by Parliament. In the opinion of the Venice Commission, the Constitutional Court

should have this competency, although, indeed, it belongs primarily to the Constitutional Court

to interpret the Constitution on those matters. The emergency decree laws introduced a

number of permanent structural changes to the legislation, which is problematic in itself.

Furthermore, the Government took individual measures which may be seen as going beyond

the limits set in Article 15 of the Constitution. Article 148 § 1 may give the Government a

respite; however, it should not be seen as giving the Government immunity from ex post

constitutional control of its actions just because these actions have been taken during the state

of emergency. Otherwise the Government would be able to use this period in order to

completely re-write the legislation and limit fundamental rights and freedoms without any

oversight by the Constitutional Court, including for the future. Such an approach would be

contrary to the very idea of constitutional control enshrined in the Turkish Constitution.

2. Constitutional review

in concreto

a. Individual complaints introduced before the approval of the decree laws by

Parliament

195. The rapporteurs were informed that, by early November 2016, the Constitutional Court

received over 45,000 individual complaints related to the application of the emergency decree

laws, mostly concerning dismissals.

196. From the outset, the Venice Commission notes that such measures that were applied on

the basis of pre-existing legislative provisions (criminal-law provisions or disciplinary provisions)

should still be reviewable by the Constitutional Court. Thus, in a recent admissibility decision

the ECtHR confirmed its jurisprudence that an individual complaint to the Constitutional Court

against a pre-trial detention order is an effective remedy, and that this remedy needed to be

exhausted even during a state of emergency, in particular because the power to arrest does not

emanate from the emergency decree laws themselves.

133

It follows that the right of individual

petition in respect of those measures should not be affected by the emergency decree laws.

197. The situation with constitutional review of individual measures ordered directly by the

emergency decree laws or on the basis of these decree laws is more complex. At present, it is

not entirely clear whether the Constitutional Court will accept to examine individual complaints

concerning such measures, although this possibility is not ruled out, and the wording of

Article 148 does not exclude concrete review of norms (i.e. in connection with specific cases).

That being said, the Venice Commission sees two major legal obstacles for the availability of

such a review in concreto.

133

See Zeynep Mercan v. Turkey, (dec.), no. 56511/16, 8 November 2016, in particular § 29

CDL-AD(2016)037

- 43 -

198. Firstly, under Article 45 of Law no. 6216 (“On establishment and rules of procedure of the

Constitutional Court”), the right of individual petition only concerns “fundamental rights and

freedoms secured under the Constitution which falls into the scope of the European Convention

on Human Rights and supplementary protocols thereto, which Turkey is a party to”.

199. In principle, measures taken in the context of criminal investigations (such as arrests,

searches, limitations on access to the lawyer) fall within the material scope of the ECHR, and in

particular its Articles 5, 6 and 8. The same concerns the dissolution of associations and

confiscation of their property – these measures clearly fall under Article 11 and Article 1 of

Protocol no. 1 to the ECHR. As to the dismissals of public servants, the ECHR does not

regulate those matters expressis verbis. So, the remedy provided by Article 45 of Law no. 6216

will be effective only if the Constitutional Court is prepared to examine those cases through the

prism of Articles 8 – 11 of the ECHR or other substantive provisions which may be applicable.

200. The second, more serious obstacle is the term “directly” mentioned in § 3 of Article 45 of

Law no. 6216:

“Individual applications cannot be made directly against legislative acts and regulatory

administrative acts and similarly, the rulings of the Constitutional Court and acts that have

been excluded from judicial review by the Constitution cannot be the subject of individual

application.”

201. According to the Government’s Memorandum, cited above, where individual measures

(dismissals, confiscations, etc.) are decided by the administrative entities (or other bodies

empowered by the decree laws to dismiss public servants - such as HCJP, for example),

individual application to the Constitutional Court may be lodged against those measures,

following prior exhaustion of other remedies. However, where the individual measure is

commanded by the decree law itself (in the form of “lists” appended to the decree laws), this

measure is, arguably, appealable neither before the Constitutional Court nor before the ordinary

courts.

134

It remains to be seen, however, whether the Constitutional Court and the ordinary

courts will agree with this interpretation.

135

202. The Venice Commission has already expressed its objection to the practice of ad

hominem legislation. It is highly problematic from many points of view: thus, it denies those

concerned procedural guarantees which should normally accompany an individual decision-

making process and violates the principle of equality.

136

In the current context it is unclear why

some people or legal entities are put on the lists attached to the decree laws, whereas others

are not. As a result of this arbitrary distinction a large group of public servants may be deprived

of the right of individual petition to the Constitutional Court, which is inadmissible.

134

The memorandum, on p. 35, reads as follows “[…] {A}s the judicial remedy is available against the

administrative transactions performed by the administrative boards based on the authorization granted by the

Decree Laws […], individual application can be made against these transactions. On the contrary, as the

expulsion transactions performed as attached to the Decree Laws have the characteristic of legislative activity in

technical terms, both the lawsuit and the individual application remedy are not available against these

transactions.”

135

The Venice Commission observes that pursuant to Article 159 of the Turkish Constitution, paragraph 9, “the

decisions of the Council, other than dismissal from the profession, shall not be subject to judicial review.” This

provision clearly implies that dismissals are subject to judicial review.

136

See CDL-AD(2016)027, Turkey – Opinion on the suspension of the second paragraph of Article 83 of the

Constitution (parliamentary inviolability), §§ 73-76

CDL-AD(2016)037

- 44 -

b. Individual complaints introduced after the approval of the decree laws by

Parliament

203. If a law approving an emergency decree law may be reviewed by the Constitutional Court

in abstracto, § 3 of Article 45 of Law no. 6216 becomes irrelevant, and the Constitutional Court,

from that moment on, should be competent to examine individual complaints related to the

emergency decree laws.

204. However, this form of review remains an equation with many variables. Will the

Constitutional Court review the cases of all those public servants whose names were put on the

lists appended to the decree laws? Will the Constitutional Court have the power to annul

individual measures which have been enacted by the decree laws during the period when these

decree laws have been, in principle, “unreviewable”?

137

And last, but not least: how is the

requirement of exhaustion of remedies, contained in Article 45 § 2 of Law no. 6216, and the

time-limits set in Article 47 § 5,

138

to be applied?

205. The Venice Commission calls on the Constitutional Court to consider those questions as

a matter of urgency and adopt “pilot judgments” which would clearly address questions of

competency and give clear guidance on the exhaustion of remedies. Its role is crucial to assert

the consistency of the individual measures with the Constitution.

G. Judicial review

206. In the Information Note to Decree Law no. 667, the Turkish authorities asserted the

following:

“Under this Decree Law, stay of execution cannot be ordered during the state of

emergency in order not to disrupt fight against terrorism. However, cases can be brought

against all kinds of acts and actions before the competent and authorized courts and if

the conditions exist, stay of execution will be able to be ordered at the end of state of

emergency. Thereby, all kinds of acts and actions to be taken in accordance with this

Decree Law shall be subject to judicial review. In this sense, an effective remedy (ECHR

art.13) is available.”

207. The Government’s Memorandum, cited above, takes a more differentiated view. The

Government asserted that those individual measures which had been commanded by the

decree laws (in the appended lists) cannot be challenged either in ordinary courts or before the

Constitutional Court, whereas other individual measures, based on the emergency decree laws,

but ordered at the lower level, are subject to such appeals.

139

137

On this point the Venice Commission considers that the Constitutional Court should have this power – see

above, the sub-section of constitutional review in abstracto.

138

This provision reads as follows: “the application must be filed within thirty days after the final proceeding which

exhausts legal remedies is notified to the applicant or, in case no legal remedy is provided for, within thirty days

after the violation is found out.”

139

Citation from p. 37: “It is considered that as Decree Having the Force of Law has the characteristic of a

specific legislative transaction and does not remain within the scope of administrative transaction, it is not

possible to request the annulment of the transaction by applying to the courts of first instance in relation to the

institutions and organizations which are closed directly with the provision of decree having the force of law. […] In

addition to this, in connection with the institutions and organizations closed, there is no legal obstacle for those

concerned to request the review and withdrawal of the transaction performed by administrative application.

Hence, certain private educational institutions and organizations which had been previously closed with the

article 1 of the Decree Law No 673 were removed from the relevant lists of Decree Having the Force Law and the

transactions performed were withdrawn. On the other hand, in the event that the closure transaction is not based

directly on the provision of decree having the force of law, but based on the transactions performed by the

administrative boards or committees authorized with the Decree Laws, it is possible to apply to the administrative

judicial remedy against these administrative transactions.”

CDL-AD(2016)037

- 45 -

208. The Venice Commission will consider the latter interpretation as given. It will, therefore,

concentrate on the dismissals and liquidations ordered in the lists attached to the emergency

decree laws.

140

209. The Turkish authorities claimed, in their Memorandum, that the State may legitimately

exclude the right of access to court for public servants. The Venice Commission acknowledges

that, in principle, this is permissible under the ECHR, but under certain conditions. According to

the criteria developed by the ECtHR in the Vilho Eskelinen case the “civil” limb of Article 6 § 1 of

the ECHR is applicable to all disputes involving public servants, unless two conditions are met:

(1) the national law expressly excluded access to a court for the post or category of staff in

question, and (2) this exclusion can be justified on objective grounds in the State’s interest.

141

means that if those two conditions are met, Article 6 would be inapplicable. By contrast, the

applicability of Article 6 of the ECHR would imply that either the administrative authorities taking

the decisions to dismiss comply with the requirements of a fair trial in their decision-making

procedure (which is clearly not the case in Turkey – see the analysis above, in sub-Section 1 of

Section E), or they are subject to subsequent control by a judicial body that has full jurisdiction

and does provide the guarantees of Article 6 § 1.

142

210. As to the first condition, in its recent judgment in the Baka case, cited above, the ECtHR

noted “that in the few cases in which it has found that the condition (‘expressly excluded’) had

been fulfilled, the exclusion from access to a court for the post in question was clear and

‘express’”.

143

Moreover, according to the judgment of the ECtHR in Saghatelyan v. Armenia,

144

the law has to exclude the access to court specifically, which implies that a general restriction of

access to the court for everybody, in respect of a specific type of administrative act (the

emergency decree laws in casu) would not be sufficient. It is questionable whether, in the

Turkish context, the condition of “explicit” and “specific” exclusion is met, since unavailability of

judicial review follows not from the emergency decree laws but from the general rule that

legislative acts are not subject to ordinary judicial review. Furthermore, there is no provision in

the 1983 Law prohibiting or restraining the right to judicial review per se during a state of

emergency.

211. Putting a person on a list attached to a decree law is a discretionary decision of the

Government. It is impossible to see why certain public servants are dismissed through the

“lists” while others are dismissed on the basis of decisions of the administrative entities. Thus,

the Government has unfettered power to decide whether a person should have access to

justice or not. Such a method of regulation ad hominem is incompatible with the principle of the

rule of law. And it is doubtful whether this model will be accepted by the ECtHR for the

purposes of applying the Vilho Eskelinen test. Moreover, the question arises whether this

differentiated treatment of public servants with regard to the dismissal procedure is in

compliance with Article 14, in combination with Article 6 of the ECHR, as well as under parallel

obligations imposed by the ICCPR.

140

The Venice Commission notes that in a recent decision in the case of Akif Zihni v. Turkey (59061/16,

29 November 2016), the ECtHR declared inadmissible an application lodged by a teacher dismissed directly by

one of the decree laws. The ECtHR decided that the applicant should have tried to exhaust domestic remedies,

in particular to bring his case before an administrative court and then lodge an individual complaint before the

Constitutional Court. The Venice Commission is aware that the question of accessibility of judicial review to these

public servants who were dismissed directly by the decree laws is a matter of controversy domestically, and that

the Turkish courts have not yet said their final word in this regard (see, in particular, a decision of the Council of

State of 4 October 2016, nos. E. 2016/8136, K. 2016/4076).

141

Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, §62, ECHR 2007-II. In applying the Vilho

Eskelinen test, the European Court has already ruled that Article 6 of the ECHR is applicable to the dismissal of

members of the judiciary – see, for example, Olujić v. Croatia, no. 22330/05, § 35, 5 February 2009; Tsanova-

Gecheva v. Bulgaria, no. 43800/12, §§ 85-87, 15 September 2015; Baka v. Hungary [GC], no. 20261/12, §§100-

110, ECHR 2016.

142

Albert and Le Compte v. Belgium, 10 February 1983, § 29, Series A no. 58

143

Baka v. Hungary, cited above, § 113

144

Saghatelyan v. Armenia, no. 7984/06, §§33-36, 20 October 2015

CDL-AD(2016)037

- 46 -

212. Another element which makes ordinary judicial review practically ineffective is the absence

of individualised reasoning. This applies both to the dismissals/liquidations commanded at the

level of the emergency decree laws and the dismissals ordered by the administrative entities. It

appears that in both cases dismissals take the form of collective non-individualised decisions.

Without knowing the reasons for which the person has been dismissed or an association has

been disbanded, it is difficult to challenge these decisions before the court.

213. Finally, the Venice Commission reiterates that the ECtHR was prepared to treat lustration-

related measures as a criminal punishment, in view of their legal nature and their effects.

Dismissals of public servants as a lustration measure – for the danger that they may represent

for the State on account of their connections with the Gülenist network, which is defined as a

terrorist organisation – are different in nature from ordinary dismissals on account of breaches

of disciplinary rules. These dismissals have legal repercussions, which go much beyond the

loss of a job; all factors considered together, it is not excluded (although not guaranteed) that

such dismissals may be characterised by the ECtHR as criminal-law measures in essence, if

not in name. In this assumption, Article 6 of the ECHR will be also applicable under its criminal

limb, which entails all the guarantees listed in its §§ 2 and 3.

214. The question of how far the State may go in curtailing the right under Article 6 of the

ECHR (under its criminal and civil limbs) during times of emergency is open to discussion. In

any event, the requirement of strict proportionality of derogation measures according to

Article 15 § 1 of the ECHR will ordinarily require basic safeguards of protection against abuse of

power and arbitrary behaviour. The Venice Commission reiterates that it could be argued that

Article 15 § 1 of the ECHR embodies an implicitly non-derogable right of access to justice,

consistent with the position of the Human Rights Committee under the ICCPR.

145

215. Even assuming that the Turkish State had large discretion in regulating access to courts

for public servants in times of emergency, this logic does not work for private legal entities

which have been liquidated by “lists”: denying judicial review with respect to actions taken

against private entities can hardly be justified by the “exigencies of the situation”.

216. Bearing those considerations in mind the Venice Commission reiterates that it ultimately

belongs to the Constitutional Court of Turkey, the ECtHR and other authoritative international

institutions to evaluate whether the supposed impossibility for a large number of public servants

to challenge the emergency measures in court violated the Turkish Constitution, the ECHR and

other international treaties to which Turkey is a party.

H. Other remedies

217. The Turkish authorities asserted to the rapporteurs that various other remedies are

available to those affected by the emergency measures. Thus, the Government’s Memorandum

suggests that those who had been dismissed by the decisions of administrative entities may

obtain the review of their cases by way of internal hierarchical appeals. This is confirmed by the

last paragraph of Resolution no. 2016/428 by HCJP of 31 August 2016, which reads as follows:

“As per article 33 of Law no 6087, request for re-examination may be placed before the

Plenary of the High Council of Judges and Prosecutors within ten days subsequent to the

notification of this decision”.

145

As was said in the context of the Inter-American human rights system, “The declaration of a state of

emergency – whatever its breadth or denomination in internal law – cannot entail the suppression or

ineffectiveness of the judicial guarantees that the Convention requires the States Parties to establish for the

protection of the rights not subject to derogation or suspension by the state of emergency.”; IACHR, Report no.

48/00, case 11.166, Walter Humberto Vásquez Vejarano v. Peru, April 13, 2000, § 48.

CDL-AD(2016)037

- 47 -

According to the Turkish authorities, the persons who were dismissed from public service were

provided with the opportunity to object to these decisions; as a result, thousands of public

servants who were re-assessed after the objections returned to their duties pursuant to the

decree laws. Moreover, the Turkish authorities state that, as a result of the appeals and re-

assessments, 53 private schools and 1 private dormitory which had been shut down under

Decree Law no. 673, and 42 private educational institutions and private dormitories which had

been shut down by the decision of the relevant minister pursuant to the authority given by

Decree Law no. 667, were re-opened.

218. Furthermore, those included in the lists may reportedly appeal directly to Parliament

seeking their reinstatement in subsequent decree laws – at least this is what the rapporteurs

were told during the visit.

219. The existence of those legal avenues has to be welcomed, but it clearly cannot replace a

judicial procedure. Parliament and the administrative entities are not, by definition, adjudicative

bodies, and have no obligation to consider cases, respect fair trial guarantees and give

reasoned decisions.

I. Special

ad hoc

body for the review of the emergency measures

220. The Venice Commission understands that, given the scale of the problem, the immediate

reintroduction of a full access to court for all dismissed public servants may be difficult, if not

impossible. Therefore, a temporary ad hoc solution may be needed.

221. Without prejudice to the power of the Constitutional Court to assess the constitutionality of

the emergency decree laws, the Venice Commission invites the Turkish authorities to consider

other options – such as, for example, the creation of a special ad hoc body, which would be

tasked with the examination of individual cases related to dismissals of public servants and

other associated measures. A proposal in similar terms has been made by the Secretary

General of the Council of Europe to the Turkish authorities, and the Venice Commission

believes that this is a path to be explored.

222. The essential purpose of that body would be to give individualised treatment to all cases.

That body would have to respect the basic principles of due process, examine specific evidence

and issue reasoned decisions. This body should be independent, impartial and be given

sufficient powers to restore the status quo ante, and/or, where appropriate, to provide adequate

compensation. The law should enable for subsequent judicial review of decisions of this ad hoc

body. Limits and forms of any compensation may be set by Parliament in a special post-

emergency legislation, with due regard to the Constitution of Turkey and its international

human-rights obligations.

223. As to the legal entities liquidated on the basis of the emergency decree laws, they are

fewer in numbers and, hence, their cases may be examined by the courts following the ordinary

procedure.

CDL-AD(2016)037

- 48 -

IV. Conclusions

224. The Venice Commission fully agrees with the statement made by its President in the

immediate aftermath of the failed coup of 15 July 2016, condemning the attempted overthrow of

the Turkish Government, where he stressed that “any changes in the government must follow

democratic channels”.

146

225. There is no doubt that the Turkish authorities were confronted with a dangerous armed

conspiracy, and that they had good reasons to declare a state of emergency and give

extraordinary powers to the Government. Moreover, certain additional limitations on human

rights in this situation are permissible. Nevertheless, the state of emergency regime should

remain within the limits set by the Constitution and domestic and international obligations of the

State.

226. The provisions of the Turkish Constitution on the declaration of a state of emergency

appear to be in line with common European standards in this area. However, the Government

interpreted its extraordinary powers too extensively and took measures that went beyond what

is permitted by the Turkish Constitution and by international law.

227. The main concerns of the Venice Commission related to the current constitutional

situation in Turkey may be summarised as follows:

 Following the declaration of a state of emergency, for over two months, the Government

was de facto permitted to legislate alone, without any control by Parliament or the

Constitutional Court;

 The Government took permanent measures, which went beyond a temporary state of

emergency. Civil servants were dismissed, not merely suspended, organisations and

bodies were dissolved and their property confiscated instead of being put under

temporary State control. In addition, the Government made a number of structural

changes to the legislation, which should normally be done through the ordinary

legislative process outside of the emergency period;

 The Government implemented its emergency powers through ad hominem legislation.

In particular, tens of thousands of public servants were dismissed on the basis of the

lists appended to the emergency decree laws. Such collective dismissals were not

individualised, i.e. they did not refer to verifiable evidence related to each individual and

described in the decisions;

 Basic rights of administrative due process of the public servants dismissed by the

decree laws or on their basis have not been respected;

 Collective dismissals were ordered because of the alleged connections of public

servants to the Gülenist network or other organisations considered “terrorist”, but this

concept was loosely defined and did not require a meaningful connection with such

organisations (i.e. such connection which may objectively cast serious doubt in the

loyalty of the public servant);

 Some of the measures associated with the dismissals unduly penalised family members

of the dismissed public servants;

 In the area of criminal procedures, extension of the time-limit for pre-trial detention

without judicial control up to 30 days is highly problematic; arrests of suspects should be

ordered only on the basis of “reasonable suspicion” against them; limitations on the

right of access to a lawyer may be imposed only in exceptional situations in individual

cases, where the existence of security risks is convincingly demonstrated, for a very

limited lapse of time and, ultimately, should be subject to judicial supervision;

146

http://www.venice.coe.int/webforms/events/?id=2266; see also the view of the Secretary General of the

Council of Europe, published on 22 August 2016 in Le Monde / La Stampa / Hürriyet / Hürriyet Daily News /

Frankfurter Allgemeine Zeitung.

CDL-AD(2016)037

- 49 -

 The Government has removed crucial safeguards that protect detainees from abuses,

which increases the likelihood of ill-treatment;

 It is unclear whether the Constitutional Court will be able to review the constitutionality

of the emergency decree laws in abstracto and in concreto. The Venice Commission

considers that the Constitutional Court should have this power;

 Collective dismissals “by lists” attached to the decree laws (and similar measures)

appear to have arbitrarily deprived thousands of people of judicial review of their

dismissals.

228. The Venice Commission is particularly concerned by the apparent absence of access

to justice for those public servants who have been dismissed directly by the decree laws,

and those legal entities which have been liquidated by the decree laws. If, for practical

reasons, the re-introduction of full access to court for public servants is impossible in the

current conditions, the Turkish authorities should consider alternative legal mechanisms,

which might permit individual treatment of all cases and ultimately give those dismissed their

“day in court”. The Venice Commission supports the proposal made by the Secretary

General of the Council of Europe concerning the creation of an independent ad hoc body for

the examination of individual cases of dismissals, subject to subsequent judicial review.

229. In conclusion, the Venice Commission recalls that the main purpose of the state of

emergency is to restore the democratic legal order. The emergency regime should not be

unduly protracted; if the Government rules through emergency powers for too long, it will

inevitably lose democratic legitimacy. Moreover, during the course of the emergency, non-

derogable rights cannot be restricted, and any other restrictions on rights must be

demonstrated to be strictly necessary in light of the exigencies of the stated emergency. The

Venice Commission hopes that, despite the dramatic events of 15 July 2016, the Turkish State

will soon return to its normal functioning. The Venice Commission remains at the disposal of the

authorities for any assistance they may need in this respect. The Venice Commission also

recalls that it will examine the effects of the emergency measures on the freedom of the media

in a separate opinion.