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

Ali Yildiz

Arrested Lawyers Initiative

In this second and final post on Turkey’s recent ad hominem emergency decrees, I ask whether the emergency decrees should be characterised as a penalty under the European Convention on Human Rights (“ECHR”) and also whether they contravene any Turkish constitutional protections. The first blog post described the operation and effect of the emergency decrees.

What is a penalty under the ECHR?

The concept of “penalty” set out in Art 7 § 1 of the ECHR has an autonomous meaning (G.I.E.M. S.R.L. & Others v. Italy [GC], § 210). The European Court of Human Rights (“ECtHR”) is free to go beyond appearances and denomination by national laws, and can autonomously assess if a specific measure is substantively a “penalty” within the meaning of Art 7 § 1. The starting point for any assessment of the existence of a “penalty” is to ascertain whether the measure in question was ordered following a conviction for a “criminal offence”. However, that is only one of the relevant criteria; the lack of such a conviction by the criminal courts is insufficient to rule out the existence of a “penalty” within the meaning of Art 7 § 1. (G.I.E.M. S.R.L. & Others v. Italy [GC], § 215-219).

Other factors may be deemed relevant in this regard, including: the nature and aim of the measure in question (particularly any punitive aim), its classification under domestic law, the procedures linked to its adoption and execution, and its severity (G.I.E.M. S.R.L. & Others v. Italy § 211; Welch v. the United Kingdom, § 28; Del Río Prada v. Spain, § 82). However, the severity of the measure is not decisive in itself, because many non-criminal measures of a preventive nature may have a substantial impact on the person concerned (Van der Velden v. the Netherlands, 20689/08).

According to the ECtHR, the following measures are “penalties” within the meaning of Art 7 § 1:

• a confiscation order following a finding of guilt for a criminal offence (Welch v. the UK);

• an administrative fine imposed in an urban development case that is equivalent to 100% of the value of the wrongfully erected building (Valico SLR v. Italy);

• confiscation of land on the grounds of unlawful construction ordered by a criminal court following an acquittal (Sud Fondi srl & Others v. Italy; Varvara v. Italy) and confiscation of land on the grounds of illegal site development ordered by a criminal court following a discontinuance decision (G.I.E.M. S.R.L. & Others v. Italy); and

• permanent prohibition from engaging in an occupation ordered by a trial court as a secondary penalty (Gouarré Patte v. Andorra).

Are the dismissals under emergency decrees and deprivations therein a measure or a penalty?

The Turkish Government argues that the dismissals are measures necessitated by exigencies of the state of emergency, however the severity and duration of dismissal and the associated consequences may mean that dismissal qualifies as a penalty within the meaning of Art 7 § 1 of the ECHR.  

It is helpful to consider how dismissal fits within Turkey’s domestic law, as this is relevant to whether a measure will be found to be a penalty under Art 7 § 1 of the ECHR. Under Article 70 of the Turkish Constitution, every citizen has the right to enter public service. Article 48 of the Law on Civil Servants, and Article 11 of Law no. 2839, preclude certain persons from being civil servants, namely those who:

• have been denounced as bankrupt under a judgment;

• have been interdicted by a judgment;

• have been convicted of an offence committed with intent that requires imprisonment for one year or longer; or

• have been convicted for offences against state security or constitutional order, or disgraceful offences, such as fraud, bribery, theft, money laundering, racketeering, even when they have been pardoned.

As seen, losing the mentioned eligibility is an ancillary result following a conviction, an adjudication of bankruptcy or interdiction. Here, the point is that both eligibilities are reinstated with a new judgment five years after the serving of the given sentence (Plenary Session of Administrative Law Chambers of the Council of State, 2011/1214) or a judgment revoking the adjudication of bankruptcy or interdiction. By contrast, under the emergency decrees, a dismissal results in a permanent deprivation of the rights to be a civil servant and to be elected, even if the person concerned is not subject to investigation or prosecution, or is exonerated or acquitted.

Although the Turkish Government tends to justify the purging of public servants through the principles of lustration that are endorsed by Parliamentary Assembly of the Council of Europe in Resolution 1096 (1996), the Government’s ad hominem purge does not comply with the Guidelines on lustration annexed to Resolution 1096. The Guidelines stipulate the following:

a)     Disqualification for office based on lustration should be no longer than five years;

b)     Lustration shall not apply to elective offices;

c)      Lustration shall not apply to positions in private or semi-private organisations;

d)     Persons who ordered, perpetrated, or significantly aided in perpetrating serious human rights violations may be barred from office;

e)     No person shall be subject to lustration only for association with, or activities for, any organisation that was legal at the time of such association or activities; and

f)       In no case may a person be lustrated without his being furnished with full due process protection.

In summary, Turkey’s ad hominem dismissal decrees may be characterised as a penalty, rather than a temporary measure in light of: (i) the scope and severity of consequences of dismissals and its perpetual status (explained in the first blog post); (ii) that dismissals entail deprivations heavier than those for a convicted felon; (iii)  that dismissals do not comply with PACE Resolution 1096 and the Guideline on Lustration; and (iv) ECtHR’s case law on the definition of punishment within the meaning of Art 7 § 1 of the ECHR.

Are the closure and confiscation of legal persons and entities under emergency decrees a measure or a penalty?

In this section, I will discuss whether interventions into the right to property through the emergency decrees amount to be a penalty in the meaning of Art 7 of the ECHR. Article 35 of the Turkish Constitution and Article 1 of the Protocol No.1 of the ECHR envisage the right to property. The Turkish Constitution, on one hand, envisages the right to property, and, on the other, proscribes a general confiscation punishment (Art 38). Under the Turkish Constitution (Arts 46-47) and case law of the ECHR, nationalization and expropriation may be carried out on the condition of actual compensation or compensation on the basis of real value. However, under these emergency decrees, 2,761 legal persons and 4,994 entities were shut down and dissolved. Assets of all those legal persons and entities, including more than 7,000 parcels of real estate larger than 7,2 million m2, were confiscated, regardless of whether these assets were acquired by the committing of a crime.

In the Turkish Ministry of Justice’s Guidelines for Seizure and Confiscation, confiscation is defined as a sanction resulting in the transfer of ownership of something to the State. For Professor Kemal Gozler, the transfer of a person’s property to the Treasury without compensation on the grounds of an (alleged) connection, relation or affiliation to a terrorist organisation has no meaning other than confiscation.

The ECtHR, in its judgments mentioned above, adjudged that confiscation is qualified as a punishment in the meaning of Art 7 § 1 of the ECHR, regardless of whether it arises from a conviction.

Lastly, Turkey’s Law on the State of Emergency (Arts 9-11) warrants provisional suspension of a legal person, but does not allow their permanent closure or dissolution. This fact, too, supports the argument that Turkey’s ad hominem decrees closing down and confiscating the property of real persons and entities are not measures but penalties within the meaning of Art 7 § 1 of the ECHR.

Conclusion

126,200 appeals were lodged against emergency decree measures with the Inquiry Commission on Emergency Measures. The Inquiry Commission has, so far, considered 92,000 appeals, of those, 83,900 (91%) were dismissed, and only 8,100 (9%) have been allowed. Although decisions of the Inquiry Commission are subject to domestic remedies, so far only a small number of its decisions have been annulled by the Ankara Administrative Court’s 19-20-21-22-23-24 chambers, which were exclusively designated to consider these appeals. Considering that the Turkish Constitutional Court dismissed its two members with the same criteria that the Inquiry Commission applies, it is reasonable to foresee that tens of thousands of appeals arising out of the emergency measures will be going to the ECtHR.

For the reasons I have explained above, the ECtHR, apart from its case law on lustration cases, should also consider whether Turkey has breached Art 7 of the ECHR and the criminal limb of Art 6 while reviewing cases that arise from Turkey’s recent emergency decrees.

Ali Yildiz 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 2 of 2)” IACL-IADC Blog (19 December 2019) https://blog-iacl-aidc.org/2019-posts/2019/12/19/turkeys-ad-hominem-emergency-decrees-measure-or-penalty-post-2-of-2