Turkey’s Ad Hominem Emergency Decrees – Measure or Penalty? (Post 1 of 2)

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Ali Yildiz

Arrested Lawyers Initiative

The purpose of these two blog posts is to consider the implications of Turkey’s recent ad hominem emergency decrees under the Turkish Constitution and the European Convention on Human Rights (“ECHR”). This first blog post will provide some context and describe the legal operation and practical effect of the emergency decrees. The later post will ask whether the emergency decrees should be characterised as a penalty under the ECHR and also whether they contravene any Turkish constitutional protections.

Introduction

According to official statements, during emergency rule (2016-2018), the Turkish Government enacted 32 emergency decrees, under which:

  • 125,678 individuals were dismissed from public service;

  • 3,213 retired officers were stripped of their ranks and medals; and

  • more than 2,671 legal persons and 4,911 entities were closed down and their assets were confiscated and transferred to the Treasury without any compensation.

Purported justification for emergency decrees

The emergency decrees justified the measures that enabled sanctions on individuals and legal persons by:

  • having “membership, affiliation, relation or connection (cohesion) to” the outlawed Gulen Movement/Structure;

  • having “membership of, affiliation, link or connection with terrorist organizations or structures, formations or groups established by the National Security Council (NSC) to perform activities against the national security of the State”; or

  • having been considered “to be a member of, or have relation, connection or contact with terrorist organizations or structure/entities, organizations or groups, established by the NSC to engage in activities against the national security of the State.”

The emergency decrees targeted individuals and legal persons in an ad hominem nature by annexing lists of names of the sanctioned individuals and legal persons. However, apart from the above-mentioned general reasoning, the emergency decrees presented neither an individualized justification nor explanation or reasoning on why those were sanctioned. Likewise, the emergency decrees did not provide definition of “membership, relation, connection, contact, affiliation, link”, or the assessment criteria used to determine that public servants be dismissed and legal persons closed down.

Direct and indirect consequences of emergency dismissals

Individuals who were sanctioned under the ad hominem emergency decrees were indefinitely and permanently dismissed from public service. Under these emergency decrees, they also:

(i)              shall be deprived of their ranks and their positions as public officials;

(ii)             may not use their titles, if any, e.g., ambassador, governor, etc;

(iii)            shall not be re-admitted to the organization in which they had previously held office;

(iv)            shall be stripped of rank (for the already retired public servants), and of combat medals;

(v)             may not be re-employed and assigned, either directly or indirectly, to any public service;

(vi)            may not become the founders, partners and employees of private security companies;

(vii)           shall be evicted from public residences or foundation houses; and

(viii)          moreover, their passports, gun licenses, seamanship or pilots’ licenses, shall be cancelled.

Besides the direct consequences, mentioned above, Turkey’s High Election Board decided (2019/2363, 10 April, 2019) that the dismissed public servants could not be elected to offices within local administrations, e.g., as mayor, alderman or mukhtar (local elected administrator for villages). Furthermore, as far as certain professions and sectors are concerned, a dismissal actually results in the prohibition of the right to work in the private sector, as well as in the public sector. Namely, the Ministry of National Education refuses to issue a working license for a dismissed teacher, and this is necessary to work in private educational institutes. Likewise, the Ministry of Justice refuses to issue a lawyer’s license to dismissed judges, prosecutors and law school academics. Furthermore, dismissal under an emergency decree is registered in all the official databases, which means that any private sector employer who might otherwise hire a dismissed civil servant avoids hiring them.

Other severe consequences of being dismissed under an emergency decree are as follows:

  1. the database of the General Directorate of the Land Registry includes a list of suspicious people, which consists of those dismissed under emergency decrees. Those included on this list cannot participate in real estate transactions, either as a party or as a witness,  

  2. the database for the Social Relief Program includes the list of those dismissed under emergency decrees. Disabled people whose first caregivers (such as parents, sons, daughters, sons-in-law and daughters-in-law) are dismissed under an emergency decrees cannot benefit from social care funds,

  3. those dismissed under emergency decrees, and their spouses and children, cannot benefit from the General Health Insurance and social rights offered to disabled people,

  4. the dismissed public servants were also blacklisted in the database of the Turkish Employment Agency with code of 36/OHAL/KHK, and they were not accepted to the vocational courses.

Closure of legal persons and confiscation of their assets without due process

As mentioned above, more than 2,500 legal persons and 4,911 entities belonging to those legal persons, were shut down. Closed entities consist of 145 foundations, 1,419 associations, 15 foundation-owned universities, 19 trade unions, 39 private health institutions, 2,271 private educational institutions and 151 media outlets. The assets of these dissolved legal persons were transferred to the Treasury, or to other relevant public entities, without cost, compensation, or any obligation or restriction. (Report of the Parliamentary Commission tasked to investigate the coup attempt of 15 July, 2016)

Permanent character of ad hominem emergency decrees

The authority of the Cabinet of Ministers to enact emergency decrees is limited. Under Art 121 of the Turkish Constitution, only during a state of emergency can the Council of Ministers, meeting under the chairpersonship of the President of the Republic, issue decrees with the force of law (Kemal Gozler). Given that emergency decrees are enacted on matters necessitated by the state of emergency, once the state of emergency ceases, the operation of emergency decrees shall also cease (Burhan Kuzu). However, emergency decrees enacted between 2016 and 2018 do not include any provision on their duration, time limit, or due date for the measures or sanctions that are laid down therein. Moreover, all emergency decrees were approved by the Turkish Parliament. Having received the approval of the Parliament, emergency decrees are qualified as ordinary and permanent law. Thus, ad hominem measures or sanctions against more than 130,000 legal and real persons, have acquired the qualification of being part of permanent law.

The above description of the emergency decrees shows their legal significance and practical effect. In the next and final blog post on this topic, I will seek to answer the question of whether the emergency decrees should be characterised as a penalty under the ECHR and also whether they contravene any Turkish constitutional protections.

Ali Yildiz is a Turkish lawyer and the director of the Arrested Lawyers Initiative.

Suggested citation: Ali Yildiz, “Turkey’s Ad Hominem Emergency Decrees – Measure or Penalty? (Post 1 of 2)” IACL-IADC Blog (17 December 2019) https://blog-iacl-aidc.org/2019-posts/2019/12/17/turkeys-ad-hominem-emergency-decrees-measure-or-penalty-post-1-of-2