State of Emergency Commission in Its 5th Year

After the first mistake (mass expulsions) at the beginning, an independent and impartial commission that actually creates solutions, not just for show, can be a remedy in order not to carry the rights violations to a greater extent. So, was the State of Emergency Commission able to achieve this?

During the State of Emergency declared after the July 15 Coup Attempt, over 125 thousand public officials were dismissed from their duties and deprived of their other rights related to this status, with the State of Emergency decrees and the decisions of the institutions authorized by them. Again, with these regulations, hundreds of associations, foundations, unions, federations, confederations, health and education institutions, foundation universities, media institutions were closed with decree laws and their assets were confiscated.

Judicial remedy was closed against the procedures established by the Decree Law, but thousands of people used various mechanisms to seek their rights. Those who tried the administrative courts, the Constitutional Court and the European Court of Human Rights (ECHR) received rejection decisions on different grounds. While it is clear that this situation will constitute a violation of the ‘right to an effective application’ regulated in Article 13 of the European Convention on Human Rights (ECHR), no regulation has been made on this issue for 5 months. At the beginning of 2017, upon the insistent request of the Venice Commission, a State of Emergency Investigation Commission with its own characteristics was established, but serious criticisms and concerns were expressed about both the establishment and the functioning of the State of Emergency Commission from the very first moment of its establishment. In order to express whether the criticisms are appropriate or not, we should look at the structure of the commission and the 5-year period until today.

Translation:

Decree-Laws and State of Emergency Commission Process

2016: After the July 15 Coup Attempt, a state of emergency was declared on July 20. With the decrees having the force of law, decisions were taken about 131,922 individuals and institutions. Judgment was closed against the decisions.

2017: On January 2, the Emergency Actions Investigation Board was established with the Decree Law No. 685. The first applications started to be received in July, approximately one year after the dismissals. The commission was given a two-year term of office. The applicants were not informed of the charges against them and were not given the right of defense.

2022: The Commission, which was expected to complete all the files at the beginning of 2019, could not complete the files in 5 years. It was stated that around 5000 files were awaiting a decision and the term of office was extended for 1 more year.

 

What Did the Venice Commission Recommend?

The Venice Commission considers it an arbitrary action to dismiss individuals from public office simply by listing their names on a list annexed to the Decree-Law. The Commission did not find it appropriate that the judicial remedy was closed against these proceedings. On the other hand, taking into account the state of emergency in Turkey and the problems, it proposed a ‘temporary’ solution mechanism, stating that it may cause difficulties for all public officials dismissed to apply to the court immediately, however, it would be useful to examine the pros and cons of the proposed mechanism and whether the State of Emergency Commission has the same qualifications. Because it was foreseen that this proposed structure would comply with international norms if it had the following basic qualifications. According to the report of the Venice Commission, what the commission to be established should do as follows:

• It should enable a personalized treatment of all cases.
• It should act in accordance with the basic principles of fair trial principles.
• It should examine specific evidence about individuals and make a reasoned decision.
• It should be independent and impartial.
• It should be authorized to reinstate and/or provide appropriate compensation.
• Judicial remedy should be open against their decisions.[1]

Is the State of Emergency Commission an Independent Structure?

After the first mistake (mass expulsions) at the beginning, an independent and impartial commission that actually creates solutions, not just for show, can be a remedy in order not to carry the rights violations to a greater extent. So, was the State of Emergency Commission able to achieve this? When answering the question of independence and impartiality, it is necessary to mention the qualifications of the members and by whom they are appointed:

Translation:

Structure of the Commission

The commission consists of 7 members. These members are appointed as follows:

• 3 members were selected by the Prime Minister from among public officials.
• By the Supreme Board of Judges and Prosecutors, 1 of which is the Supreme Court of Appeals and 1 of whom is the examination judge of the Council of State.
• 1 member is appointed by the Minister of Internal Affairs from among the local authorities.
• 1 member by the Minister of Justice from among the judges.

*The commission was established before the Presidential government system.

The executive power appoints 5 of the 7 members of this commission, which takes quasi-judicial decisions in terms of its nature. In addition, there are questions about independence and impartiality, as it is possible for them to be dismissed easily in the event of an administrative investigation against them as per the relevant regulation.

‘They Were Not Given the Right to Defend Themselves’

The dismissal of a person from public office on the grounds that he has affiliation or contact with a terrorist organization includes ‘criminal charges’. As a matter of fact, this issue was determined by the decision of the Constitutional Court dated 24.06.2021 as follows: ‘… the persons in the attached list (1) have been dismissed from public office on the grounds that they are members or members of structures, formations or groups that are determined to be engaged in activities against terrorist organizations or the national security of the state. The aforementioned phrases are of such a nature that the persons mentioned in the list numbered (1) attached to the Law and who have been subjected to criminal investigation or prosecution for the crime of membership of a terrorist organization, but for whom a final verdict has not been established after the completion of the process against them, are qualified as a member or member of a terrorist organization. In addition, there is no explanation in the rule regarding the existence of any judicial process that resulted in a final judgment about the persons on the list. Therefore, the rule that contains statements that may cause individuals to be considered guilty without a final sentence of conviction violates the presumption of innocence…’

The importance of the issue of ‘criminal charge’ is as follows: When a person is exposed to a criminal charge, he should be given the right of reasonable defense and may be subject to a violation of ECHR article 6 (Right to a Fair Trial) due to criminal charges in the administrative action.[3]

The people included in the decree laws were dismissed from public office without knowing the allegations against them, without being given any right of defense, without presenting evidence, without hearing witnesses, that is, completely contrary to the presumption of innocence. The decisions taken were taken completely against the principle of innocence. This situation was registered by the Constitutional Court only 5.5 years later.

Could 120 Thousand Files Be Examined in 2 Years?

Another point to be evaluated is whether it is reasonable to examine and decide on more than 120,000 files within 2 years by a 7-person commission. To make it concrete, let’s exemplify: An administrative court with a heavy workload can examine an average of 2 thousand files per year, while a heavy penal court can examine a thousand files. When the file and working days are taken into account, the commission should have decided on an average of 500 people per day in order to reach the targeted figure. Considering this emerging picture, it is clear that it will not be possible to complete the files at this time. In other words, society was promised something that would not come true. On the other hand, the fact that around 100 thousand files were decided by a single committee of 7 people in a period of approximately 4.5 years (because the investigations started in July 2017), reveals that the process of examining the files – whether or not – is sloppy and unfair.

Is It a Distraction Commission?

The reason why the commission is so idle is that it is a single commission consisting of 7 people. Wasn’t this situation considered by the authorities who envisaged and organized the State of Emergency Commission? Or was the commission really a ‘distraction’ commission? More than 10 courts in Ankara Administrative Court, which is authorized against the decision of the State of Emergency Commission, deal only with these files. On the other hand, the commission, which is the basic condition for the files to be submitted to the judiciary, is one. To handle the lives of more than 120 thousand civil servants with the logic of the consumer arbitration committee is, to put it mildly, folly.

Aside from resolving this existing violation quickly and effectively, there are still thousands of people who cannot take a decision from the commission and cannot even apply to administrative jurisdiction, even after 5 years have passed since the dismissals. Decisions are taken within 1-2 years in the administrative courts authorized to hear the decisions of the commission. It takes approximately 2 years for appeal and 2 years for appeal. Currently, the number of people whose expulsion file has been approved by the Council of State is negligible. Considering the possible individual application processes of the Constitutional Court and the ECHR, the violations will become multiplied. Because in this period, people will be under many material and moral obligations. In this respect, the criticisms of the ‘distraction’ commission against the commission were unfortunately justified. The commission stole a few more ‘extra’ years from people’s lives.

Issuances are in place on the grounds of ‘Institutional Opinion’

The State of Emergency Commission includes sample decision texts in its annual reports. The main message to be conveyed with these texts compiled from acceptance and rejection decisions is to prove that ‘decisions are justified’ and that all decisions are evaluated in the light of concrete data about individuals, that is, ‘individualized’. In the rejection decisions given as examples, all the rejection decisions are tried to be cleared by including the issues that have specific elements and especially for which a conviction decision has been made by the judicial judiciary. The number of files rejected by the Commission on the grounds of ‘institutional opinion’ (actually without justification) is substantial. The fundamental rights of individuals are being violated with these unjustified decisions about people who have been acquitted or not prosecuted, and against whom no investigation has even been carried out. There are different rejection criteria such as union membership, working at Bank Asya (Bank Asia) before being a civil servant, being a member of closed associations, expulsion of her husband or being sued for being a member of an armed terrorist organization.

Translation: C. Information, Documents and Determinations Regarding the Application

Article 5 of the Law No. 7075 states that the Commission can request all kinds of information and documents related to its field of duty from the relevant parties. In this context, the issues determined from the information and documents obtained from the relevant institutions and organizations are given below.

In the personnel information file submitted to the Commission by the Institution, it was determined that there was an assessment that the applicant was associated with the FETO/PDY (Fethullahist Terrorist Organization/Parallel State Structure) when the information obtained that the applicant was included in the system on a contract basis during the years when the applicant was in command of the FETO/PDY cover supply system is evaluated as a whole.

Translation: Evaluation of the Application

Considering the information, documents and findings obtained within the scope of the file, which is the subject of the application, the institutional opinion, which includes the evaluation that the applicant has contact and affiliation with the FETO/PDY terrorist organization, reveals the applicant’s contact with the FETO/PDY.

The Ones That Not Returned to Duty Despite the Decision of Extradition

As we mentioned above, in order for us to talk about the effectiveness of the State of Emergency Commission, the commission should (did) decide to return to the old situation and decide on compensation, but it is possible to make a decision only in the form of acceptance/rejection according to the authority given to the commission. What should be understood from the word ‘return to the old situation’ is not that the person returns to the civil service, but that he/she starts in the same workplace and in the same position. In addition, the commission cannot take decisions on issues such as unpaid salaries and personal rights. For this reason, those who take a positive decision from the commission are not started to work for a long time, and those who are initiated are not employed in the same workplace and position. [4] In fact, it was clearly regulated in Law No. 7075 that in the event that civil servants holding the title of manager would return to duty, they would return to their previous positions and positions as managers. Fortunately, this regulation was annulled by the Constitutional Court.

Returned Ones After Losing Their Lives

As those exposed to the decree laws are left to die as civilians, they and their families experience serious financial and moral problems. The suicides of 16-year-old Bahadır Odabaşı, who is the son of a father from a statutory decree, and Fatma Demirel, from a statutory decree, are the most painful examples of this. 17 public officials who were reinstated years after their dismissal showed us once again that justice delayed is not justice.[5]

Ordinary State of Emergency: Decree No. 375

After this 5-year experience, decision makers act against all civil and political warnings instead of taking their share. [6] Following the lifting of the State of Emergency on July 18, 2018, the Provisional Article 35 was added to the Decree Law No. 375 on July 25, 2018, and ‘co-operation’ was deemed sufficient for dismissal from public office. Thus, even though the state of emergency was lifted, the expulsions process was made permanent. This regulation, which was originally brought for 3 years, has been extended for 1 more year and is still in effect:

‘It is decided that the ones who are identified as a member, affiliation or affiliation with or affiliated with terrorist organizations or structures, formations or groups determined by the National Security Council to be engaged in activities against the national security of the State for a period of four years from the date of entry into force of this article…  it is not appropriate for them to stay in the profession, and they are dismissed from the profession…’

The story of doctor Benan Koyuncu, who was suspended after 15 July 2016 and then returned to her job, which resulted in her dismissal at the end of 2021, reveals the carelessness of the process carried out after the State of Emergency.

Translation: 

Oddly enough, I was dismissed by a board that didn’t even know my surname, used the surname of my ex-spouse, whom I left 3 years ago, even sent the letter to the corporation I worked for 2 years ago, to learn the address of the new corporation I work for, by saying that you have a white code file.

It is known that after the state of emergency, approximately 11 thousand people from the Turkish Armed Forces and a thousand from the Security General Directorate were dismissed from public service. [7] Although their number is not that high, dismissals continue gradually in other public institutions as well.

How should it be?

Even in extraordinary processes in which the public order and national security are disrupted, the measure of dismissal from public office can be limited to those who are responsible for this deterioration or perform a function in this nature, in other words, who commit crimes by using public force and cause human rights violations. [8]

The State of Emergency Commission process has ended except for 4-5 thousand people. At least, our promise to the State of Emergency Commission in terms of existing files and to the administrative judiciary in terms of other files is as follows: Decisions regarding dismissal from public office should be personalized, a direct personal fault should be disclosed, and how and in what way he or she violated the duty of loyalty to the state or the links that would raise serious doubts about the loyalty of the public official in an ‘objective’ manner should be put forward concretely.

[1] Venice Commission, Opinion on Emergency Decree Laws Nos. 667-676 Adopted Following the Failed Coup of 15 July 2016, CDL-AD(2016)037, (Venedik Komisyonu Raporu), par. 222.

[2] The decision of the Constitutional Court dated 24/6/2021 and numbered E.2018/81, par. 58.

[3] Kerem Altıparmak, Stillborn Child: State of Emergency Commission Established by Decree No. 685, Ankara Bar Association Journal Issue: 2017/1, ps.76.

[4] The State of Emergency Commission has reinstated, there are those who have not been back to work for 10 months… Ministry of Interior: The process of 257 EGM personnel continues – Independent Türkçe (Independent Turkish)  https://www.indyturk.com/node/428201/haber/ohal-komisyonu-g%C3%B6reve-iade-etti-10-ayd%C4%B1r-i%C5%9Fba%C5%9F%C4%B1-yapamayanlar-var-i%CC%87%C3%A7i%C5%9Fleri

Despite the State of Emergency Commission and court decision, he was not hired – Evrensel (Universal) https://www.evrensel.net/haber/402632/ohal-komisyonu-ve-mahkeme-kararina-ragmen-ise-alinmadi

[5] 15 public workers with statutory decree reinstated after death – Sol (Left) https://haber.sol.org.tr/haber/khkli-15-kamu-emekcisi-oldukten-sonra-ise-iade-edildi-323472 (A decision was made about İbrahim Söylemez and Kazım Ünlü to be reinstated to their duties after this news, and this number became 17.)

[6] In the European Parliament’s report on Turkey dated 19 May 2021, it was expressed that ‘it regrets the absence of an effective remedy for large-scale layoffs affecting many people’. https://www.europarl.europa.eu/doceo/document/TA-9-2021-0243_EN.html

[7] After July 15, 24 thousand 256 people were expelled from the Turkish Armed Forces – TRT Haber (TRT News)  https://www.trthaber.com/haber/gundem/15-temmuzun-ardindan-tskdan-24-bin-256-kisi-ihrac-edildi-638868.html (According to the report released by the State of Emergency Commission, the number of personnel dismissed from their duties in the Ministry of National Defense during the State of Emergency was 13.400. The remaining dismissals were made based on the Decree No. 375.)

https://twitter.com/komisyonkarar/status/1279671397493673985

[8] Measures to dismantle the heritage of former communist totalitarian systems -Resolution 1096 (1996) http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=16507