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Universidade Autónoma de Lisboa
e-ISSN: 1647-7251
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STATE OF EMERGENCY PRACTICES AND HUMAN RIGHTS:
THE CASE OF MASS DISMISSALS OF PUBLIC EMPLOYEES IN TURKEY
ÖMER BEDIR
omerbedir@yahoo.com
He has a Bachelor degree in Public Administration from Marmara University, Istanbul. He
received a Master degree on EU and Political Science from IEP of Strasbourg. He was admitted to
the renowned French École E.N.A. (Ecole Nationale d'Administration) where he followed the
"Cycle International Longue" programme. He was awarded a Ph.D. degree in Modern Turkish
History from Hacettepe University, Ankara. He worked between 2005-2016 as a career diplomat
at the Turkish Ministry of Foreign Affairs. He served in several Turkish diplomatic missions
abroad. He is currently an independent researcher specialized in international relations and
human rights issues (Turkey).
.
Abstract
The declaration of state of emergency is a common legal practice used by states to overcome
extraordinary situations. Within the framework of the state of emergency, on the one hand,
the competences of the governments are increased and, on the other hand, the rights and
freedoms of individuals are limited or suspended temporarily. The main goal of the state of
emergency is to provide the necessary legal means that will enable the political government
and the bureaucratic administration to end the extraordinary situation as early as possible.
The governments shall use these extraordinary competences fairly and justly. These
competences shall not be abused for political purposes and for intimidation of opponents.
Even though the rights and freedoms can be limited or suspended during the state of
emergency, basic human rights cannot be violated. Practices of the state of emergency shall
strictly fall within the scope of the situation which rendered it necessary. This article examines
the balance between state of emergency practices and respect for human rights in the
particular case of Turkey, which declared the state of emergency in the aftermath of the failed
coup of July 2016. In this respect, a special focus is devoted to the case of the mass dismissal
of public servants by extraordinary decrees during the state of emergency and to the
conformity of these mass dismissals with the European Convention on Human Rights.
Keywords
Human Rights, State of emergency, Turkey, European Court of Human Rights, Dismissal of
public employees
How to cite this article
Bedir, Ömer (2021). State of emergency practices and human rights: The case of mass dismissals
of public employees in Turkey. Janus.net, e-journal of international relations. Vol12, Nº. 1, May-
October 2021. Consulted [online] at date of last visit, https://doi.org/10.26619/1647-
7251.12.1.12
Article received on December 22, 2020 and accepted for publication on March 10, 2021
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e-ISSN: 1647-7251
Vol. 12, Nº. 1 (May-October 2021), pp. 206-233
State of emergency practices and human rights: the case of mass dismissals of public employees
in Turkey
Ömer Bedir
207
STATE OF EMERGENCY PRACTICES AND HUMAN RIGHTS:
THE CASE OF MASS DISMISSALS OF PUBLIC EMPLOYEES
IN TURKEY
1
ÖMER BEDIR
Introduction
The state of emergency was declared in Turkey after the coup attempt of 15 July 2016
and lasted for two years without interruption, until 19 July 2018. The purpose of the state
of emergency, therefore the limitation of the use of some rights for a certain period, is
to facilitate and accelerate the process of getting back to normal. But if not used in a fair
way, the state of emergency risks being used as a means to suspend freedoms and
rights, thus preventing a return to "normal" situation.
This article aims to study the balance between the state of emergency practices and the
respect for human rights in the specific case of mass dismissals of public servants in
Turkey. In the first part of this article, the coup attempt and the process of declaring the
state of emergency are explained. In the second part, the decision of the Turkish
Constitutional Court regarding the extraordinary decree-laws (EDL) issued during the
state of emergency and the consequences of this decision are examined. In the third
part, the mass dismissal of public officials by the EDLs under the state of emergency
regime and the compatibility of these practices with the European Convention on Human
Rights (ECHR) are discussed. In the fourth part, the positions of internal and external
actors with regard to the state of emergency practices and the mass dismissal of public
employees are examined.. Finally both the consequences of the practices of the state of
emergency on human rights and democracy, and the effects of this state of emergency
at individual, social and systemic levels are analysed.
1. The attempted coup and the declaration of state of emergency
In extraordinary times and circumstances, "ordinary" legal frameworks may remain
insufficient to address pressing problems. In these exceptional situations, legislations
that are less restrictive for the executive power, the government and the bureaucracy as
a whole are seen as a need, even a must (Robert, 1990: 751-752). In this sense, the
declaration of the state of emergency is one of the most used legal practice by the
governments to overcome difficult times in which a country finds itself.
1
Article translated by Carolina Peralta.
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The state of emergency allows governments to limit and sometimes suspend, for a
defined period, the use of certain rights in the name of the well-being of the nation. The
general interest prevails over the interest of individuals and extraordinary cases
legitimize the limitation of the enjoyment of certain rights
2
.
The followers of FETÖ (Fethullahist Terrorist Organization)
3
that infiltrated for decades
the Turkish army tried to carry out a coup on 15 July 2016. Following the failed coup,
the AKP (Justice and Development Party) government declared a "state of emergency"
(Council of Ministers, Decision no. 9064, 20 July 2016) in accordance with article 120 of
the Turkish Constitution
4
, with a view to combating this terrorist organization. As a
result, the state of emergency entered into force across the country as of 21 July 2016.
As there was a direct threat to democracy and 251 people were killed in the attempted
coup, Turkish public opinion was in favour of the implementation of swift and effective
measures against this terrorist organization. So, in this political atmosphere and with a
security approach, the declaration of the state of emergency was seen as a necessity in
order to be able to overcome this extraordinary situation.
2
For an in-depth analysis of the state of emergency see Halpérin, Jean-Louis; Hennette-Vauchez, Stéphanie;
Millard, Eric (2017). L'état d'urgence: De l'exception à la Banalisation. Paris: Presse Paris Nanterre; Morand-
Deviller, Jacqueline (2016). "Réflexions sur l'état d'urgence". Revista de Investigações Constitucionais.
Curitiba. Vol. 3, n. 2: 51-64. Accessible through DOI: http://dx.doi.org/10.5380/rinc.v3i2.46476
3
The origins of FETÖ go back to the 1970s. FETÖ emerged as a peaceful religious movement and was called
the "service movement". The stated aim of this movement was to serve and transform society through
education, civic action and the media. Within this framework, its supporters opened thousands of schools,
education centres and student hostels which acted as a way of recruiting followers from very young ages.
They founded TV channels and published newspapers to disseminate their ideas and do their propaganda.
This religious movement also controlled significant financial resources. They also organized themselves
abroad and opened hundreds of schools in various countries. This religious movement was inspired by
Christian missionaries.
Under the guidance of the leaders of this movement, young followers are encouraged to become public
servants and especially to organize themselves in the army and the police. The questions of the entrance
exams to the army and police schools were systematically stolen thanks to the help of collaborators
infiltrated in these institutions. Over time, the followers of this movement grew and became powerful in the
bureaucratic system.
When the AKP party came to power in 2002, it preferred to make an alliance with this religious movement
and took advantage of its cadres in the bureaucracy against the "Kemalist establishment", their common
enemy. Under the protection of political authority, this religious movement has grown stronger than ever.
The unofficial alliance between the AKP and this religious movement had worked well for ten years. But
from 2012 this alliance started to be shaken and the fight to grab power on its own intensified. Attempts to
reconcile the former partners were unsuccessful. In December 2013, FETÖ followers in the police and the
judiciary carried out two anti-corruption operations against some ministers and their relatives. From that
moment, the struggle between these two parties became public. The AKP has called these anti-corruption
operations as "coup d'état" and the religious movement as "FETÖ/PDY", an acronym that stands for
"Fethullahist Terrorist Organization/Parallel State Structure". For additional information see: Mert, Ali
Osman (2016). 15 July Coup Attempt and the Parallel State Structure. Ankara: Publications of the
Presidency of the Republic of Turkey. Available at
https://www.tccb.gov.tr/assets/dosya/15Temmuz/15temmuz_en2.pdf; Le Point (21 July 2016). "Qui sont les
Gulenistes, accusés d'avoir installé un "État parallèle" ?". [Accessed on: 04.04.2020]. Available at
https://www.lepoint.fr/monde/qui-sont-les-gulenistes-accuses-d-avoir-installe-un-etat-parallele-21-07-
2016-2056000_24.php
4
Article 120 of the Turkish Constitution: "In the event of serious signs of the extension of violent actions
aimed at overthrowing the free democratic order established by the Constitution or suppressing
fundamental rights and freedoms or in the event of a serious disturbance of public order due to acts of
violence, the Council of Ministers meeting under the chairmanship of the President of the Republic may,
after consulting the National Security Council, proclaim a state of emergency in one or more regions of the
country or throughout the territory, for a period not exceeding six months. "[Accessed: 10.03.2020]. The
full text in French of the Turkish Constitution is available at https://mjp.univ-perp.fr/constit/tr1982.htm et
https://mjp.univ-perp.fr/constit/tr1982-2.htm
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Members of the government, in various television reports, have repeatedly stated that
"The state of emergency will only last three months and maybe less. Because
the government is aware that the state of emergency is not something
desirable. We must not forget that it was this government which put an end
to the state of emergency in force for years in the south-eastern region of the
country. Once the public institutions are definitively cleaned of the FETÖ
terrorists, the state of emergency will be lifted as soon as possible” (Milliyet,
July 22, 2016)
But in practice, contrary to the statements indicated above, the government, by claiming
the gravity of the threat and the complexity of the terrorist structure, chose to
successively extend the state of emergency every three months
5
. Thus, the state of
emergency lasted uninterrupted for two years, between 21 July 2016 and 19 July 2018.
Despite the regular calls made from the very first days to the government by the
opposition parties to put an immediate end to the state of emergency (Grand National
Assembly of Turkey, Minutes of the 117th Session: 21 July, 2016), the political authority
chose to remain indifferent to these calls.
2. EDLs under the state of emergency regime: unchecked powers
When the government adopted, on 25 July 2016, the "extraordinary decree-law no. 668
relating to the measures required in the context of the state of emergency and to the
regulation of certain institutions", the main opposition party, the CHP (People's
Republican Party) appealed on 23 September 2016 to the Constitutional Court claiming
the anti-constitutionality of this EDL, and at the same time requested its stay of execution
in order to prevent irreparable consequences if implemented
6
.
The Turkish Constitutional Court unanimously decided on 12 October 2016 that according
to article 148 of the constitution,
7
the anti-constitutionality of the EDLs in periods of state
5
The state of emergency has been extended 7 times by parliament. The decisions of the Grand National
Assembly of Turkey (TBMM) relating to the extension of the state of emergency were: Decision no. 1182
(18.04.2018); Decision no. 1178 (18.01.2018); Decision no. 1165 (17.10.2017); Decision no. 1154
(17.07.2017); Decision no. 1139 (18.04.2017); Decision no. 1134 (03.01.2017); Decision no. 1130
(11.10.2016). [Accessed: 11.03.2021]. Available at
https://www.tbmm.gov.tr/develop/owa/tbmm_kararlari_gd.sorgu_yonlendirme
6
In its appeal, the CHP underlined the following points: the state of emergency is a temporary period in
which exceptional measures can be implemented. These measures must relate to the events and subjects
which required the declaration of a state of emergency. These measures should only be valid during the
state of emergency. However, with the end of the state of emergency, exceptional measures should also
disappear. The declaration of the state of emergency does not in any way suspend the law and the
constitution. The state of emergency is not an arbitrary regime and the executive branch must comply with
the principles of rule of law. According to the CHP, "The extraordinary decree-law no. 668 relating to the
measures required in the context of a state of emergency and to the regulation of certain institutions"
contained measures unrelated to the cases which caused the declaration of state of emergency and made
changes that go beyond the period of the state of emergency. For the reasons indicated above, the CHP
claimed that the EDL in question was contrary to Articles 2, 6, 7, 8, 11 and 121 of the Constitution and
should be annulled (Constitutional Court, 12.10.2016: para. 2).
7
Article 148 of the Turkish Constitution: "The Constitutional Court monitors conformity with the Constitution,
as to form and substance, of the laws, decree-laws and the internal Rules of the Grand National Assembly
of Turkey. Regarding constitutional amendments, their examination and control relate exclusively to form.
However, decree-laws enacted in a period of state of emergency, state of siege or war cannot be the subject
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of emergency cannot be evoked and therefore considered itself incompetent to control it
(Constitutional Court, 12.10.2016: paras. 25-27). In fact, with this decision, the
Constitutional Court changed its previous jurisprudence where it considered itself
competent to control and annul the EDLs on grounds of unconstitutionality, including
during the periods of state of emergency (Constitutional Court, 10.01.1991: Section IV
and V). In its previous decisions, the Constitutional Court affirmed that it should examine
the real legal nature of the EDLs without being bound by their name and form (Ibid.,
Section IV: para. A-3- (a) and (c)). It also added that in democratic regimes, the state
of emergency does not correspond to an arbitrary regime and does not suspend the rule
of law (Ibid., Section IV: para. A-1); that the regulations implemented by the EDLs should
not go beyond the limits and the objectives of the state of emergency (Ibid., Section IV:
para. A-2) and could not extend to regions and provinces which fall out of the state of
emergency (Ibid., Section IV: para. A-3- (b)). With the aforementioned considerations,
the Constitutional Court had annulled, in the past, several EDLs by majority vote
(Constitutional Court, 10.01.1991; 03.07.1991; 26.05.1992 and 22.05.2003).
With the change of the jurisprudence of the Constitutional Court, an "unlimited and
uncontrolled competence" was recognized to the executive power by the judicial power.
The political power had obtained a "blank cheque" from the Constitutional Court (Adadağ,
2019: 147). Theoretically, the political authority, if it so wished, with a simple EDL could
suspend or even abrogate the entire Constitution and dissolve any institution, including
the Constitutional Court. The executive power was exempt from all legal and judicial
control during the period of state of emergency. The powers recognized by the state of
emergency had already enabled the executive power to easily use the legislative power
via EDLs. And in addition, thanks to the decision of the Constitutional Court, the political
power was endowed with an exceptional irresponsibility for its acts. This new
jurisprudence of the Constitutional Court helped at the same time the party in power to
remain indifferent to the opposition’s criticisms of abuse of competences.
On the other hand, the security bureaucracy quickly adapted to this state of emergency
process and, thanks to the encouragement of the political power, increased its arbitrary
actions. Decisions by legal bodies that privileged state security over individual rights and
freedoms have further prompted the security bureaucracy to underestimate fundamental
rights. The implicit and subsequently legal assurance
8
conferred on the security forces
and the bureaucracy in general (Venice Commission, 12 December 2016: paras. 95-97;
OHCHR, 2018: paras. 5 and 45; OHCHR, A/HRC/ WG.6/35/TUR/2, 20-31 January 2020:
para. 23) facilitated and multiplied human rights violations during the state of
emergency.
of appeal for unconstitutionality before the Constitutional Court, neither in form nor in substance." [Accessed
on: 10.03.2020]. The full text of the Turkish Constitution in French is available on https://mjp.univ-
perp.fr/constit/tr1982.htm and https://mjp.univ-perp.fr/constit/tr1982-2.htm
8
"Law no. 6755 relating to the adoption with modifications of the EDL concerning the measures taken in the
context of state of emergency and the regulations made to public institutions" was adopted on 8 November
2016. Article 37 of this law relates to the legal, administrative, criminal and financial impunity of the
"bureaucrats" who implemented the orders in the framework of the state of emergency. See, Official Gazette
of the Republic of Turkey no 29898 (24.11.2016). Ankara. On the other hand, article 121 of EDL no. 696
relates to the criminal and financial impunity of "civilians" who assisted in preventing the attempted coup
of 15 July 2016. See, EDL no. 696 (24 December 2017). Official Gazette of the Republic of Turkey no. 30280
(24.12.2017). Ankara.
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The psychology of impunity in public administration quickly spread. Laws that were
carefully enforced before were now ignored. For example, at the start of the state of
emergency, people affected by the EDL wanted to benefit from the right to information.
Those expelled from public office could not obtain any information on the reasons for
their dismissals. However, according to law no. 4982 relating to the right to information
9
,
every person, whether a Turkish citizen or foreigner, has the right to request information
on administrative acts concerning himself, and the relevant administration must, within
15 working days, provide the information and documents requested (Law on the Right to
Information, 2003: Articles 4 and 11). Despite this very clear law, requests for
information remained unanswered.
The Council for the Assessment of the Right to Information, the public authority
responsible for implementing the law in question, unanimously decided that information
requests concerning acts emanating from the EDLs and especially those relating to the
dismissal of officials fall out of the right to information and therefore would not be
answered (Council for the Assessment of the Right to Information, 4 August 2016).
The political authority and the bureaucracy had become accustomed to the comfort and
the irresponsibility of this exceptional and relatively long period. When the state of
emergency was finally lifted on 19 July 2018, the ruling party had already decided to
pass a law
10
that allowed it to use the state of emergency practices in "normal" periods
(OHCHR, A/HRC/WG.6/35/TUR/3, 20-31 January 2020: paras. 8 and 29). In fact, on the
one hand, the "temporary state of emergency" was over, but on the other hand, "the
permanent state of emergency", without calling it a state of emergency, had entered into
force. The security approach continued to rule over the legal and libertarian approach
even after the end of the state of emergency, thanks to the help of the parliamentary
majority of the AKP and its ally, the MHP (Party of Nationalist Action), and despite the
strong objections of the opposition.
3. The massive dismissals of public servants by the EDLs and the
compatibility of these EDLs with the ECHR
As of 21 July 2016, in the context of the state of emergency, the AKP government
successively enacted several EDLs.
11
But some of these EDLs were unrelated
12
to the
cases that led to the state of emergency (OHCHR, 2018: paras. 6 and 46). Article 121 of
9
The law relating to the Right to Information was adopted on 9 October 2003 with a view to harmonizing
Turkish legislation with the community acquis, in the process of Turkey's candidacy to the European Union.
10
"Law no. 7145 on the Modification of Certain Laws and Decree-Laws" was adopted just after the end of the
state of emergency, on July 25 2018. With this law, several limitations on the rights and freedoms of
individuals during the state of emergency period were extended for the next 3 years. For example, Ministers
were empowered to expel officials without disciplinary investigation for the next 3 years. Passport issuance
to those suspected of terrorist acts could be refused for the next 3 years. Demonstrations and protests
during the evenings were banned. See, Official Gazette of the Republic of Turkey no. 30495 (31.07.2018).
Ankara.
11
A total of 32 EDLs were implemented between 2016 and 2018, during the state of emergency. For the texts
of the EDLs, see the website of the Official Gazette of the Republic of Turkey, accessible at
https://www.resmigazete.gov.tr
12
Some of these EDLs were unrelated to the events that led to the declaration of the state of emergency,
such as the expulsion of officials; closing schools; the closure of tv channels, radio stations and newspapers;
changes in the penal code; rules for using winter tires; change in the procedure for appointing university
rectors, etc. (Adadağ, 2019: 148).
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the Turkish Constitution
13
on the declaration of state of emergency stipulated
14
that the
EDLs can only treat urgent questions concerning the situation which engendered the
conditions of the state of emergency and that these extraordinary regulations can only
be valid during the period of the state of emergency. There were therefore two types of
essential limitations, content and duration, for the EDLs.
However, the change in the jurisprudence of the Constitutional Court has enabled the
political authority to adopt EDLs that had effects even after the end of the state of
emergency. The dismissal of public officials through the EDLs is a typical example of this
practice. Instead of adopting an interim measure, such as removing public officials from
their positions during the state of emergency, the political power has chosen to
permanently remove them from the civil service.
3.1. Mass dismissal of public officials: disproportionate measures of
the state of emergency
107,944 (One hundred and seven thousand nine hundred and forty-four) public officials
15
were expelled by the EDLs between July 2016 and December 2017 (OHCHR, 2018: para.
61). These EDLs
16
included the lists of the expelled officials in their annexes. The lists
were classified on the basis of public institutions. The names-surnames, individual
identity numbers of the officials, their last status or position, and their work places (city-
district) were on these lists. And all this private information was posted publicly in the
EDLs on the official journal’s website.
Article 2, paragraph 1 of these EDLs stipulated that
"…The people mentioned in the attached lists… those who are considered
members, those who are considered to have a membership, a relationship, a
connection or an affiliation with terrorist organizations, with structures,
13
Article 121 of the Turkish Constitution:"…regulates… the procedures for limiting or suspending fundamental
rights and freedoms, in accordance with the principles set out in article 15 of the Constitution, determines
how and in what manner the measures required by the situation will be stopped, what kind of powers will
be conferred on public service employees and what kind of changes will be made to their status, and sets
the exceptional administrative procedures.
Throughout the duration of the state of emergency, the Council of Ministers meeting under the chairmanship
of the President of the Republic may issue decree-laws in matters that make the state of emergency
necessary. These decree-laws are published in the Official Gazette and submitted the same day for the
approval of the Grand National Assembly of Turkey…". [Accessed on: 10.03.2020]. The full text of the
Turkish Constitution in French is available on https://mjp.univ-perp.fr/constit/tr1982.htm
14
With the referendum held on 16 April 2017 on the modification of certain articles of the constitution, article
121 of the Turkish constitution is repealed.
15
According to the Turkish authorities, the total number of officials expelled by the EDLs between 2016 and
2018 is 125,678 (one hundred and twenty-five thousand six hundred and seventy-eight). See the
Commission responsible for examining emergency files. [Accessed on: 14.03.2020]. Available at
https://ohalkomisyonu.tccb.gov.tr
According to data collected by OHCHR, the total number of expelled officials exceeds 150,000 (One hundred
and fifty thousand) (OHCHR, 2018: para. 61; OHCHR, A/HRC/WG.6/35/TUR/2, 20-31 January 2020: para.
37).
This difference in figures can be explained by the fact that certain categories of civil servants, such as
judges and prosecutors, were not expelled by the EDLs but by decisions of their respective institutions.
16
For the full list of EDLs relating to the dismissal of civil servants, see the website of the Commission
responsible for examining state of emergency files. [Accessed on: 14.03.2020]. Available at
https://ohalkomisyonu.tcbb.gov.tr/khklar
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formations or groups that have activities against the national security of the
State… are expelled from their public functions…"
Article 2, paragraph 2 of the EDLs stipulated that
"…persons expelled from the civil service can no longer become civil servants
again… cannot be hired directly or indirectly for public functions… and their
passports are cancelled…"
Vague and unclear terms (membership, relationship, connection, affiliation and structure,
formation, group) were used in the text of the EDLs (Venice Commission, 12 December
2016: para. 129). In fact, all the people in the lists annexed to the EDLs were considered
"terrorists", without any legal decision.
The political power had decided to expel these employees without prior notification,
without explanation and without recognizing the right to defend themselves (Günday,
2017: 35). The administration, with the advantage provided by the state of emergency,
did not feel the need to provide concrete evidence for the dismissals and considered mere
suspicion sufficient for this administrative act implemented through a legislative act.
A differentiation in the sanction to be imposed was also not preferred for the distinct
categories (member, membership, relationship, connection or affiliation) listed in the text
of the EDLs. While the Geneva Convention prohibits collective punishment (Geneva
Convention, 1949: art. 33), all these categories were accepted as "equal terrorists" and,
in the "holy war" against terrorism, were collectively penalized.
During the two years of the state of emergency, more than 6,000 academics, 4,240
judges and prosecutors (which makes a third of judges and prosecutors) and tens of
thousands of people from various professions such as doctors, teachers, soldiers, police,
workers etc., a total of more than 150,000 people, were expelled from their public
functions (OHCHR, 2018: paras. 49 et 61).
3.2. The criteria used for the dismissal of public officials
During the first weeks of the state of emergency, in the name of absolute confidentiality,
no information was shared with the public on the criteria for dismissals. Following the
first mass dismissal of officials, public opinion and the media sought to know the criteria
taken into account for these draconian sanctions. The politicians have made explicit the
criteria and the dates mentioned below.
According to the political authorities, the dates of 17 and 25 December 2013 were
decisive for the dismissal decisions. These dates were considered the beginning of the
terrorist nature of the religious community, which became an armed terrorist
organization after the attempted coup.
According to the political authority, the main criteria for expulsion, thus the indicators of
relationship, connection, affiliation with the terrorist organization, were:
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- having an account with "Bank Asya"
17
- using the messaging app "Bylock"
18
- sending their children to schools
19
associated with this religious group
- being a member of the trade union d"Aktif-Sen"
20
- being a member of NGOs linked to this religious group and making donations to them
- detailed analysis of employees' social media accounts.
For the political authority, the civil servants who met one of the above criteria after 17-
25 December 2013 had a relationship, strong or weak, with the terrorist organization and
therefore should be permanently removed from public service. But the date chosen for
the expulsions contained a simple paradox (Venice Commission, 12 December 2016:
paras. 119, 121 and 125): those who met one of these criteria, before the dates chosen,
were considered innocent and eligible to continue to work in the public service. On the
other hand, those who met one of these criteria, after the dates chosen, were considered
"terrorists" and thus removed from their public functions.
In fact, the dates chosen by the political power had a political meaning. The AKP regarded
these dates as the "official" start of a "war" between itself and this religious community.
On 17 and 25 December 2013, the FETÖ followers infiltrated in the Turkish police led two
major anti-corruption operations. Ministers, children of ministers and many other
politicians were involved in this corruption affair. The AKP qualified these police
operations as a lie and as an attempted civil and legal coup against it. (Anatolian Agency,
14 July 2017).
Therefore, the criteria and the dates announced by the political power as the basis for
dismissals were not "legal" but rather "subjective" and "political". From a legal point of
view, having an account in a bank which operates in accordance with Turkish law, using
17
"Bank Asya" was inaugurated on 24 October 1996 with the participation of several politicians who
subsequently held the positions of minister, prime minister, even president (Hürriyet, 4 February 2015).
As the alliance between this religious community and the AKP worked well, several public institutions
instructed their employees to open salary accounts with branches of Bank Asya (Kamu Haber Merkezi, 27
November 2016).
18
This is a messaging application used mostly by supporters of this organization. Bylock's programme was
downloaded by over 500,000 (five hundred thousand) users and was publicly available on Playstore and
Applestore (The Guardian, 11 September 2017).
19
Because of their educational qualities, hundreds of thousands of parents have sent their children to the
schools of this religious group. These schools functioned legally under Turkish law and were, like all other
schools, inspected by the Ministry of National Education. In addition, the government, within the framework
of the financing of private schools, had continued to finance the schools of this group until 15 July 2016,
that is, until the day of the coup.
With the state of emergency, 934 schools associated with this group were closed (Venice Commission, 12
December 2016: para. 81). Ministers, members of Parliament and many high-level officials have graduated
from these schools. Given the very high number of people affected by the school criterion, the AKP was
forced to relax this expulsion criterion and announced that it alone would no longer be considered sufficient
for expulsions, but would be taken into account if there are other indices and criteria. See, Commission
responsible for examining the files of the state of emergency. OHAL Komisyonu ÇalışmalaHakkında Bilgi
Notu (26.12.2019). [Accessed on: 13.03.2021]. Available at https://ohalkomisyonu.tcbb.gov.tr/
20
The d'Aktif-Sen trade union operated in the field of education. When the alliance between this religious
group and the AKP party worked well, the latter encouraged teachers to join this union. Union dues were
paid regularly by public institutions instead of employees until 15 July 2016 (Kamu Haber Merkezi, 27
November 2016).
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a publicly available messaging programme on the internet, sending one’s children to
schools which operate under Turkish law and are inspected by the Ministry of National
Education, being a member of a trade union founded under Turkish law, becoming a
member of an NGO established under Turkish law does not constitute an offense in itself
(Venice Commission, 12 December 2016: paras. 103 and 112). But under the conditions
of the state of emergency, institutions and acts that were previously legal were qualified
as illegal with the change of political circumstances
21
.
In addition, among the expelled employees, there were also thousands of people who did
not meet any of these stated criteria.
22
The common point of these people was their
dissident character and their opposition to the political power. The EDLs have also
become, in the hands of the political authority, instruments to remove dissidents and
opponents from the public service (OHCHR, 2018: para. 42). Apart from the dismissal
sanctions, a large part of these officials had to face criminal trials, with the accusation of
"being a member of an armed terrorist organization" (OHCHR, 2018: paras. 10 and 82).
3.3. Conformity of the EDLs with the ECHR
Several articles of the ECHR have been violated by the EDLs referred to above:
23
Article 6 of the ECHR "Right to a fair trial"
Legal acts like sending one's children to schools operating in accordance with Turkish
law, having an account with a bank operating in accordance with Turkish law etc., are
declared illegal acts, contrary to the universal principles of the rule of law and
predictability of law.
The expelled officials were publicly accused of being "terrorist" and therefore suffered
unequivocal libel. They were declared guilty without any legal decision. These people
were condemned by a political decision and through a legislative act adopted by the
Council of Ministers (Venice Commission, 12 December 2016: para. 132).
21
As part of an extradition request, on 8 November 2018 the Ministry of Justice presented, via its legal
counsellor in the Turkish Embassy in London, a document to the Westminster court in Great Britain. In this
document, it is stated that having an account with Bank-Asya was not a crime in itself and that using the
Bylock programme was not a crime if there was no criminal content. So the Turkish authorities had refuted
the two criteria for expulsions with this document. When this document was published in the newspapers,
the Ministry of Justice stated that the document did not reflect the official position of the Ministry and that
it was drafted by the Legal Counsellor himself without consulting the Ministry. (Odatv.com, 1 December
2018).
22
1,128 academics from 89 Turkish universities signed a joint petition in January 2016 against violence in the
south-east of the country. After the declaration of the state of emergency, the signatories were expelled
from their academic positions by the EDLs and criminal trials with the accusation of terrorism were initiated
against them (OHCHR, 2018: para. 74).
23
In fact, the political power was well aware that the EDLs did not comply with the law and human rights and
that if the files relating to the EDLs and the practices of the state of emergency were to be examined by
the ECHR, the latter would most likely condemn the acts in question. In this context, just after the end of
the state of emergency, on 25 July 2018, Law no. 7145 allowing "unilateral declaration" was adopted. The
"unilateral declaration", which did not exist until that date in Turkish law, was thus included in the penal
code and the administrative code. The judicial system was now equipped with a second weapon, apart from
amicable settlement, in the event of a finding of human rights violations by the ECHR. See, "Law no. 7145
relating to the Modification of Certain Laws and Decree-Laws" (25 July 2018). Official Gazette of the Republic
of Turkey no. 30495 (31.07.2018). Ankara.
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The accused persons did not have the opportunity to know the reasons and evidence for
the charges against them. No document, information or file was shown to these persons
and all their requests for information were left unanswered.
Vague and unclear terms (contact, relationship, membership, member, structure,
formation, group) were used in the EDLs. In fact, all the people in the lists annexed to
the EDLs were suspected, without distinction, of being "terrorist" and penalized
collectively. The presumption of innocence was intentionally ignored by the EDLs.
The personal information of the former civil servants was published on the website of the
official journal. Not only the former public officials but also their families, were
stigmatized and deliberately targeted by this publication. In addition, the passports of
the family members of former officials, including those of minors, were cancelled. In this
sense, this was a collective penalty implemented against the family members of the
former civil servants.
Article 8 of the ECHR "Right to respect for private and family life"
The expelled officials were charged with a serious crime, "terrorism". The personal
information (surname-first name, title, institution, employee’s number, place of work) of
these people was published on the website of the official journal. By publishing this
personal information, the intention was to psychologically penalize not only the former
civil servants themselves but also the members of their families collectively. Publicly
displaying the private information of these people also resulted in their exclusion from
social and working life. This is not only an attack on respect for private and family life
but it also constitutes discrimination.
Article 13 of the ECHR "Right to an effective appeal"
The dismissals were carried out by means of EDLs and, according to the Turkish
Constitutional Court, the EDLs during periods of state of emergency fell out of legal
control
24
. Following this decision of the Constitutional Court, the administrative courts
and the Council of State also declared themselves incompetent to examine the EDLs.
Therefore, all domestic legal channels became ineffective to overturn the dismissal
decisions.
Since all domestic legal remedies were rendered ineffective, there was only one option
to resort to: the European Court of Human Rights (ECHR). In a short time, tens of
thousands of appeals were sent by the former Turkish officials to the ECHR
25
.
Article 14 of the ECHR "Prohibition of discrimination" and Protocol 12, Article 1
"General prohibition of discrimination"
Following the expulsions by the EDLs, an "explanatory note"
26
for those expelled was
entered in their personal files at the Turkish Social Security Institution. When a person
looks for a job, employers can check the personal file of that person on the Social Security
website to confirm the information provided by the job seeker (former place of work,
work length etc.) and directly see the explanatory notes. Due to these explanatory notes,
24
See pp. 4-5
25
See pp. 15
26
The explanatory note reads as follows: "(Last name-First name) is dismissed from the public service as a
result of the extraordinary decree-law no...".
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most employers refuse to hire the dismissed civil servants for fear of having problems
with the public authorities (T24, September 25 2017).
This practice of "explanatory note" shows that the political authority wanted to make it
almost impossible for these people to find employment, even in the private sector.
27
This
practice means the exclusion of former civil servants from work and social life, and it
constitutes a discrimination. The political authority wanted to penalize former civil
servants and their relatives not only politically but also economically and socially (civil
death) permanently.
Another act of discrimination relates to the children of the expelled officials. The children
of these people were followed-up and profiled because of the schools where they studied.
However, these schools functioned in accordance with Turkish law and received financial
aid from the Ministry of Education until 15 July 2016. This profiling of minors carries the
risk of paving the way for new discriminatory practices against them in the future.
Calls by politicians for the re-enactment of the death penalty constitute another act of
discrimination. Some political parties campaigned for it and promised to use it on
"terrorists" (Hürriyet, 19 July 2016). Given the simplicity of the terrorism charge, the
former public employees became the target of a witch hunt.
28
In this sense, it is a crime
of hate and discrimination.
Additional Protocol 1, Article 1 "Prot