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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

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.

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

The followers of FETÖ (Fethullahist Terrorist Organization)

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

, 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.

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

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

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

. 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

The Turkish Constitutional Court unanimously decided on 12 October 2016 that according

to article 148 of the constitution,

the anti-constitutionality of the EDLs in periods of state

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

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).

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

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

"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

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

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.

But some of these EDLs were unrelated

to the

cases that led to the state of emergency (OHCHR, 2018: paras. 6 and 46). Article 121 of

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.

"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.

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

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

on the declaration of state of emergency stipulated

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

were expelled by the EDLs between July 2016 and December 2017 (OHCHR, 2018: para.

61). These EDLs

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,

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

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.

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.

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"

- using the messaging app "Bylock"

- sending their children to schools

associated with this religious group

- being a member of the trade union d"Aktif-Sen"

- 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

"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).

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).

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 Çalışmaları Hakkında Bilgi

Notu (26.12.2019). [Accessed on: 13.03.2021]. Available at https://ohalkomisyonu.tcbb.gov.tr/

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

In addition, among the expelled employees, there were also thousands of people who did

not meet any of these stated criteria.

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:

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).

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).

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).

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

. 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

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"

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,

See pp. 4-5

See pp. 15

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.

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.

In this sense, it is a crime

of hate and discrimination.

Additional Protocol 1, Article 1 "Protection of property"

No indemnity was paid to the public servants dismissed by the EDLs. However, according

to Turkish law, the relevant authorities should pay the due compensation to civil servants

in accordance with the length of their service. In this sense, the right to property was

violated.

Additional Protocol 4, Article 2 "Freedom of Movement"

In accordance with the provisions of the EDLs, the passports of the expelled officials and

the passports of their family members, including those of minors, were cancelled. During

the state of emergency, former civil servants and their family members were prohibited

to travel abroad (OHCHR, 2018: para. 14). The principle of individual legal responsibility

is a universal value recognized by all modern legal systems. This universal principle of

rule of law was deeply neglected. Family members of former civil servants were just

penalized because of their relatives (OHCHR, A/HRC/WG.6/35/TUR/2, 20-31 January

2020: para. 12).

After the end of the state of emergency, the travel ban was partially lifted, especially for

minors. But this ban still continues for former officials even though the state of

emergency is officially terminated. The Ministry of the Interior, after the necessary

examinations from the point of national security, may exceptionally decide to issue

passports to the expelled civil servants. In practice, passport requests are refused by the

The work licenses of certain categories of expelled officials, such as lawyers, airplane pilots and teachers

etc., were cancelled by the EDLs. This, in practice, meant the invalidation of their university diplomas and

therefore made it impossible to practice their professions in the private sector.

The political power has publicly called on citizens to denounce to the police or to prosecutors those who had

connections with the terrorist organization (cnnturk.com, 10 August 2016). Later, the political authorities

had to admit that innocent people had also become victims of these denunciations (T24, 7 September

2016).

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Ministry of the Interior, except for people who need urgent medical treatment abroad.

And these people must prove the urgency of their illness with medical documents.

4. The position of internal and external actors vis-à-vis the state of

emergency practices

Against the practices of the state of emergency and the massive dismissals of public

officials, the main internal and external actors have expressed their concerns and called

on the government to respect human rights and ensure judicial independence.

4.1. The Position of the Main Internal Actors

The simplicity and massiveness of the dismissals, the absence of legal appeal against the

EDLs, the widespread detentions and imprisonments,

the prohibition of demonstrations

and protests

led to a climate of fear and mistrust. Denunciations, unsigned petitions,

defamations, even rumours frightened not only public officials but also ordinary citizens.

4.1.1. Jurists:

Judges and prosecutors witnessed the dismissal and arrest of thousands of their

colleagues. This situation had a significant psychological effect on the independence and

impartiality of the judiciary. The judges who dared to make decisions that did not please

the political authority were either sacked or exiled (T24, 27 May 2017). Therefore,

political pressure and potential sanctions from the "Council of Judges and Prosecutors",

restructured after the attempted coup and highly politicized following this restructuring,

had adverse effects on judicial independence (Human Rights Watch, 4 April 2017).

There were also "pro-state" judges and prosecutors who believed that the measures

taken by the political power were just and in extraordinary circumstances the rule of law

could be suspended (Gazete Duvar, 13 March 2020). This type of jurists further

discouraged judges and prosecutors who did not want to yield to political authority.

On the other hand, at the very beginning of the declaration of the state of emergency, a

large part of the lawyers, for fear of being targeted by the political authority, refused to

defend those arrested with a terrorism charge (OHCHR, 2018: para. 57; OHCHR,

A/HRC/WG.6/35/TUR/2, 20-31 January, 2020: para. 25). This atypical situation was in

Judicial investigations regarding terrorism charges were initiated for more than 500,000 (five hundred

thousand) people during the period of the state of emergency (Cumhuriyet, 3 March 2019).

Over 55,000 (fifty five thousand) people were imprisoned on charges of being members of the terrorist

organization FETÖ (OHCHR, 2018: para. 82). In 2002, the number of prisoners was 59,429 and by 2019

the number of prisoners had exceeded 282,000. The number of prisoners had increased 470% in 17 years

(Gazete Duvar, 6 April 2020).

The governors of 81 towns were ordered, as part of the state of emergency, to ban meetings and gatherings,

if they deemed it necessary (Tombuloglu & Kolay, 2017: 1).

Several people afraid that their names or bank accounts were being used by the terrorist group, were

defrauded by criminals posing as the police or the prosecutor (cnnturk.com, 18 March 2020).

The higher authority empowered to conduct disciplinary investigations on judges and prosecutors with a

view to suspending or expelling them.

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fact an indicator of generalized fear, even among lawyers whose essential jobs are to

defend their clients.

In addition, for the first time in the history of the Turkish judicial system, there were

cases where the courts of first instance did not respect the decisions of the Constitutional

Court and the ECHR (Amnesty International, 2020; T24, 14 January 2018). This

incomprehensible and chaotic resistance from certain courts has shaken the essential

hierarchy between legal bodies and diminished confidence in the judicial system. These

acts of some courts were also proof of the politicization of justice.

In these state of emergency conditions, the judiciary was, on the one hand, powerless

against the executive power to prevent human rights violations and, on the other hand,

given the decision of the highest judicial body on the constitutionality of the EDLs, lacked

the necessary will to confront the political authority to defend human rights.

4.1.2. Political Parties in Opposition

The AKP government has been in power since 2002. It has won all general and

presidential elections since that date and enjoys high electoral support. Opposition

political parties remain weak vis-à-vis the AKP, and the latter, through political

manoeuvres, succeeds in foiling an alliance of opposition parties likely to overthrow it.

The coup attempt provided the AKP with increased democratic legitimacy and reinforced,

in the eyes of the people, its image as a victim and at the same time hero vis-à-vis non-

democratic forces. As a champion of democracy, it enjoys a psychological and moral

advantage on the political scene over its opponents. In addition, the coup attempt gave

the opportunity to implement radical measures ignoring fundamental rights and to

achieve systemic changes that were not possible in normal times

. The AKP used until

the end the strongest argument of modern times, the fight against terrorism, against its

opponents

Even if the opposition political parties have objected to the undemocratic practices of

political power and have severely criticized human rights violations, they have remained

insufficient, in terms of the number of parliamentarians, to thwart the AKP in its

legislative acts

. Furthermore, they were not able to mobilize the masses and be a

source of hope for voters, which in turn facilitated the AKP's position to continue its state

of emergency policies.

In April 2017, under state of emergency conditions, the AKP proposed constitutional changes with the

support of the MHP. The OHCHR and the Venice Commission found that the proposed changes were

undemocratic and authoritarian in nature (OHCHR, 2018: paras. 31, 35, 36 and 93; Venice Commission,

13 March 2017).

During the electoral campaign for the constitutional referendum of April 2017, the alliance of the AKP and

the MHP publicly accused people who said no to the referendum of allying with the coup plotters and

terrorists (Tombuloglu & Kolay, 2017: 3).

In the general elections held on 24 June 2018, under the conditions of the state of emergency, the AKP

obtained 42.56% of the votes and 295 MPs out of 600 (haberler.com, 24 June 2018).

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4.1.3. Media

In Turkey, currently 90% of the media is pro-government

(Reporters Without Borders,

Turkey: Press Freedom Figures). Dissenters face enormous difficulties in making their

voices heard on mainstream media. Due to the tense political atmosphere during the

state of emergency, even the media of an opposing nature felt compelled to practice self-

censorship (OHCHR, 2018: para. 92).

Dissenters cannot effectively use social media and internet platforms

, as critical social

accounts are often followed by internet police and message sharing often becomes a

lawsuit against the senders. The risk of imprisonment constitutes a significant source of

dissuasion for the independence of the media (OHCHR, A/HRC/ WG.6/35/TUR/2, 20-31

January 2020: para. 30; Reporters Without Borders, 2018)

When a person or any institution (newspaper, website etc.) becomes a political target,

first of all the "trolls"

start to insult and intimidate the person or the institution

concerned. Then, reporters from "pool media" continue to do whistle-blowing or mildly

threatening news. In the last phase, justice opens investigations and decides on

imprisonment. This cycle repeats itself for dissidents and opponents who do not please

the dominant forces.

As much of the media was pro-government, and journalists with an opposition tendency

faced prison terms and physical attacks (Human Rights Watch, 2016: 33), the media

could not sufficiently fulfil its intended functions in a democracy and consequently human

rights violations did not find enough space in the news and newspapers.

4.2. The position of the main external actors

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 measures adopted

after the attempted coup may include a derogation from the obligations set out in the

Convention

. In the following weeks, several other notifications followed after the

promulgation of the subsequent emergency decree-laws (Venice Commission, 12

December 2016: paras. 31 and 55). On 21 July 2016, the Turkish government also

The pro-AKP media is dubbed as "swimming pool media", a term referring to a "swimming pool" filled

(financed) by public funds and used according to the needs of its masters (Yeniçağ, 5 March 2019).

Access to over 114,000 websites, including Wikipedia, was prohibited (European Parliament, Resolution

2018/2150 (INI): para. 8; OHCHR, 2018: para. 13). Access to Wikipedia was banned on 29 April 2017 and

this ban lasted for more than 2 years. The Turkish Constitutional Court ruled on 26 December 2019 that

the ban on access to Wikipedia violated freedom of expression and therefore did not comply with article 26

of the Turkish Constitution (Constitutional Court, 12/26/2019: paras. 103-104).

The report of "Reporters Without Borders" on the world ranking of press freedom in 2018 ranked Turkey

157th out of 180 countries; in 2019 again it ranked 157th out of 180 countries and in 2020 it ranked 154th

out of 180 countries (Reporters Without Borders, World Press Freedom Index). "Human Rights Watch"

estimates 119 journalists are in jail on terrorism charges (Human Rights Watch, 2020).

"Troll" is a derogatory word used to describe people who insult, misinform, attack anonymously from their

social accounts. These people hide their real identities, use pseudonyms and fake photos on their social

accounts. It is claimed that "there is a politically oriented "troll army" and trolls are paid on a regular basis

(Yeniçağ, 5 March 2019; Doran, ABC News, 11 June 2020).

Council of Europe. Declaration of State of Emergency in Turkey (English translation). [Acceded on:

19.06.2020]. Available at

https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=09000016806

9538b

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notified the General Secretariat of the United Nations on the derogations of its obligations

emanating from the International Covenant on Civil and Political Rights

4.2.1. The Council of Europe

Turkey has been a member of the Council of Europe since 1949 and a candidate country

for membership of the European Union (EU) since 1999. It recognized the right of

individual appeal to the ECHR in 1987 and its compulsory jurisdiction in 1990

. As a

member of the Council of Europe which ratified the ECHR and a country which started

accession negotiations with the EU in 2005, Turkey should respect human rights and

meet the Copenhagen criteria.

The European institutions which perceived the declaration of the state of emergency with

some understanding following the attempted coup have expressed their concerns with

and criticism of the human rights violations. The Secretary General of the Council of

Europe, Mr Thorbjorn Jagland, called on the Turkish authorities to make a clear distinction

between those who tried to carry out the coup and others who were not involved in it.

He stressed that if the Turkish authorities did not ensure this distinction, petitions could

be filed against Turkey before the ECHR for human rights violations (Council of Europe,

31 October 2016).

The Parliamentary Assembly of the Council of Europe also expressed its concerns about

the social consequences of the measures implemented within the framework of the state

of emergency. It stressed that the measures led to the "civil death" of the expelled

officials. It added that these measures will have dramatic long-term effects on Turkish

society (PACE, 2017: Res. 2156).

The Venice Commission, the Council of Europe's advisory body on constitutional matters,

in turn also called on the Turkish government to respect human rights (Venice

Commission, 12 December 2016: para. 155) and to refrain from making constitutional

changes under the conditions of the state of emergency (Venice Commission, 13 March

2017: para. 133). Despite these calls, the constitutional referendum was organized in

April 2017 and deeply undermined the principle of the separation of powers and

democracy (OHCHR, 2018: paras. 35, 36 and 93).

As for the judicial organ of the Council of Europe, in a short time, the ECHR received

thousands of appeals from officials expelled during the state of emergency. As all

domestic legal channels were inaccessible to the expelled officials, appeal to the ECHR

was the only way to seek justice. The arrival of a large number of appeals, the practical

and especially political difficulties of examining these cases led the authorities of the

Council of Europe and the ECHR to negotiate the subject with the Turkish authorities.

The officials of the Council of Europe and the ECHR advised the Turkish government to

set up an ad hoc Commission in charge of examining the dismissal files and finding out

The derogations concerned articles 2, 3, 9, 10, 12, 13, 14, 17, 19, 21, 22, 25, 26 and 27. See United

Nations. Turkey: Notification Under Article 4(3), Transmittal of the Secretary General (21 July 2016).

[Accessed on: 19.06.2020]. Available at https://treaties.un.org/doc/Publication/CN/2016/CN.580.2016-

Eng.pdf

Turkish Ministry of Foreign Affairs. İnsan Hakları ve Avrupa Konseyi. [Accessed on: 26.04.2020]. Available

at https://www.mfa.gov.tr/insan-haklari-ve-avrupa-konseyi-tr.mfa

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about domestic legal appeal channels against the decisions of the said Commission

(Venice Commission, 12 December 2016: paras. 221-222). Following the negotiations,

the Turkish government agreed to establish a "Commission responsible for examining

decisions taken under the state of emergency" and to recognize "internal legal channels"

against the decisions of the "Commission"

. Finally, this "Commission" solution only

served to delay

appeals to the ECHR and implicitly helped the prolongation of the state

of emergency practices and their consequences

4.2.2. The European Union

The bodies of the EU and especially the European Parliament (EP) were critical of the

practices of the state of emergency and on several occasions called for the lifting of the

state of emergency (European Parliament, 8 February 2018). In view of the

disproportionate measures foreseen by the state of emergency, in November 2016 the

EP asked the Commission and the Member States to temporarily freeze the ongoing

accession negotiations with Turkey (European Parliament, Resolution 2018/2150 (INI):

Recital D). In July 2017, the EP once again called on the Commission and the Member

States to formally and without delay suspend the accession negotiations with Turkey if

the package of constitutional reforms were implemented without modification and if there

was no improvement in the field of human rights (Ibid.: Recital E).

When the state of emergency was lifted on 19 July 2018, the EP welcomed this decision

but regretted, however, that the new legislation introduced on 25 July 2018, more

precisely Law no. 7145, preserved many powers conferred on the executive power by

virtue of the state of emergency and, in essence, allowed the latter to continue, with all

the limitations that this implies for fundamental human rights and freedoms (Ibid.: para.

1).

Faced with the continuing deterioration of human rights, the EP voted, on 2 October

2018, for the cancellation of aid of 70 million euros within the framework of IPA II

(instrument of pre-accession aid) allocated to Turkey. The EP's decision was taken by

544 votes in favour, 28 against and 74 abstentions (European Parliament, 2 October

2018).

“The Commission in charge of examining state of emergency files" was established on 23 January 2017 and

began to function on 22 May 2017. It is a single Commission in charge of examining 125,678 (one hundred

and twenty-five thousand six hundred and seventy-eight) expulsion files. Up to now, 98,300 files have been

examined by the Commission. 88,700 files out of 98,300 (that is 90% of the files examined) have been

rejected. See, Commission responsible for examining state of emergency files. [Accessed on: 14.03.2020].

Available at https://ohalkomisyonu.tccb.gov.tr

Only two administrative courts located in Ankara are empowered to review the decisions of the Commission.

It is practically impossible for the Commission and the two administrative tribunals to examine more than

one hundred thousand cases in a reasonable time (Günday, 2017: 38).

The Commission makes its decisions on average over a period of 2 years. As for the two administrative

tribunals, they also make their decisions approximately within a period of 2 years. In the event of a negative

decision of the administrative tribunal, it is necessary to appeal first to the Administrative Appeal Tribunal,

then to the Council of State and then to the Constitutional Court. After this last instance, the appeal to the

ECHR starts. The time required for an expelled civil servant to access the ECHR is, therefore, on average,

10 years (Arslan, BBC Türkçe, 13 June 2017).

In fact, as the legal nature and the content of the complaints were largely similar, the ECHR could examine

the files from a "pilot case" and thus help to accelerate the making of justice and to mitigate the damage

suffered. It seems that, for political reasons, this option was not preferred.

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On the other hand, compared with the EP, the reactions of the Commission were relatively

weak and reluctant

. In this context, the European Court of Auditors in a special report

stressed that the conditionality provided under the IPA could help stimulate the reform

process in Turkey and criticized the Commission for not having made sufficient use of the

conditionality attached to the IPA. The Court also noted that the possibility of suspending

funding in the event of non-compliance with the principles of democracy and rule of law,

which existed for IPA I, was not explicitly provided for in the regulations governing the

"IAP II" and criticized the Commission for this shortcoming (European Court of Auditors,

2018: paras. 18, 29 and 62).

4.2.3. The United Nations

The United Nations human rights mechanisms have regularly expressed their concerns

about human rights violations, through confidential communications, reports and press

releases (OHCHR, 2018: para. 20). The Human Rights Council and the Office of the United

Nations High Commissioner for Human Rights expressed their concerns about the holding

of the constitutional referendum of April 2017 under the conditions of the state of

emergency and criticized the concentration of powers in the hands of the executive body

with the referendum in question (OHCHR, 2018: paras. 31, 35 and 36). UN experts, in

turn, have drawn attention to state of emergency practices and human rights violations.

They also stressed that the changes proposed by the constitutional referendum could

have serious consequences on economic, social and cultural rights (United Nations, 13

April 2017).

5. The consequences of the state of emergency on human rights and

democracy

The state of emergency which lasted two years resulted in the deterioration of

fundamental freedoms and the rule of law in Turkey. Massive dismissals of public officials;

travel ban for expelled officials; use of arbitrary detention; excessively long pre-trial

detention and court proceedings; absence of an indictment in several cases and the

severity of the conditions of detention; allegations of ill-treatment and torture of

detainees; widespread application of long-term solitary confinement, which amounts to

a second sentence for inmates; abuse of counterterrorism measures to legitimize the

repression of human rights as reported by several human rights organizations and by the

office of the United Nations High Commissioner for Human Rights, were among the main

consequences of state of emergency practices at individual level (OHCHR, 2018; Venice

Commission, 13 March 2017; European Parliament, Resolution (2018/2150 (INI)).

At social level, the brutality of the sanctions inflicted, the weakness of individuals and

groups before the systemic power and the poor functioning of legal mechanisms have

The Commission’s approach can be explained by the burning issue of Syrian refugees. Turkey hosts the

world's highest number of refugees and migrants, over 4 million people, including 3.6 million Syrian

refugees. Turkey continues to make commendable efforts in terms of welcoming, supporting and

accommodating a significant number of refugees and migrants (European Commission, COM (2019) 174:

3).

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helped to generalize collective fear. In this atmosphere of fear, often egoism reigned.

Those who were not directly affected by the state of emergency measures did not attach

great importance to human rights violations. Despite the worsening of fundamental rights

and freedoms under the state of emergency, a good majority of voters did not send a

warning to political authority through their votes

. This paradoxical situation can be

explained on the one hand by the failure of the opposition and on the other hand by the

indifference of some of the voters regarding human rights and fundamental freedoms.

At systemic level, the political authority considered it necessary, following the experience

of the attempted coup, to concentrate power within it and to limit the room for

manoeuvre for all kind of opposition. To this end, under the conditions of the state of

emergency, constitutional changes were implemented by the 2017 referendum. These

constitutional changes profoundly changed the Turkish political system (OHCHR, 2018:

paras. 32-33). The parliamentary regime gave way to a "Turkish-type presidential

regime"

, in which power was concentrated massively in the hands of the president.

Consequently, the upset of the balance between executive, legislative and judicial powers

has had negative effects on the democratic and pluralistic nature of the political system.

The terms of ruling political party, government and state merged in such a way that the

slightest criticism of political authority was seen and shown as an attack on the holy

existence of the state.

In addition, the internal struggle between the Islamists, on the one hand the AKP as a

representative of political Islamism and on the other hand the putschist religious

community which has become a terrorist organization, has damaged the balance of the

political system in Turkey and has led to the weakening of democratic institutions and

human rights. It is confirmed once again that the struggle to grab power is often stronger

than religious affinity. In addition, the political Islamists who advocated, when they were

in opposition, fundamental freedoms and human rights, including religious freedoms,

contradicted themselves

with their practices when in power.

Another peculiarity of this state of emergency was the extensive use of information

technology in the processes of human rights violations

. In this sense, the lists including

the personal information of the expelled officials were published on the website of the

official gazette. In addition, these digitized lists were communicated to the Ministry of

the Interior for the cancellation of passports and to other institutions, such as the Social

Security Institution, the Ministry of Education etc., for the implementation of other

sanctions. These lists were also communicated via confidential circular letters to private

During the state of emergency, the AKP won the constitutional referendum of April 2017 and the general

elections of June 2018.

Faced with criticism of the extreme concentration of power in the hands of one person, supporters of the

constitutional changes advocated the new system to be a "Turkish presidential system". This qualification

sought to ensure more legitimacy to this new system in the eyes of nationalist voters and undecided

voters.

The contradiction mentioned above between the discourses and practices of political Islamists has led to an

erosion in religious beliefs, especially among young people (Diken, 16 March 2019).

For more information on computer logging and surveillance technology, see Sainati, Gilles (2007). "De l'État

de droit à l'État d'Urgence". La Découverte «Mouvements». 2007/4 no. 52: pp. 82-89. [Accessed on:

03.04.2020]. Available at https://www.cairn.info/revue-mouvements-2007-4-page-82.htm

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companies such as banks and insurance companies

(Gazete Duvar, 27 December 2019

and 31 December 2019). The sanctions imposed on the expelled officials were therefore

not limited to the public sector but also extended to the private sector. So technological

means made it almost impossible to escape the sanctions of political authority even in

the private sector.

Conclusion

The declaration of state of emergency does not suspend the law or the rule of law. It is

a temporary period when certain rights and freedoms can be limited, in a reasoned

manner, to allow an extraordinary situation to be easily overcome. It is by no means an

arbitrary regime. So even though they may be limited during the state of emergency,

human rights should not be violated.

In the case of the state of emergency implemented in Turkey, we see that the tense

political atmosphere after the attempted coup, the increased legitimacy of political power

and the strong argument for the fight against terrorism have "politically" facilitated the

implementation of draconian measures that ignored human rights.

The change in the jurisprudence of the Constitutional Court concerning the EDLs, more

precisely its decision, which made it impossible to examine the unconstitutionality of the

EDLs during periods of state of emergency, gave immense power and comfort to the

political authority. With this decision of the Constitutional Court, the executive power was

exempt from any legal control in its acts implemented by these decrees, which "legally"

allowed the possibility of neglecting human rights.

The paralysis of internal actors in the face of massive violations of human rights is

observed: jurists, political parties, media, civil society, and ordinary citizens. In short, all

the components of democratic life have largely remained insufficient to fulfil their

democratic functions and to protect fundamental rights. Throughout this period,

democratic values, human rights and defenders of human rights were publicly devalued

by the ruling class and by certain groups sharing the same interests with this class.

a result, human rights and democratic values declined considerably under the state of

emergency, which became a means not only to fight terrorism but also to intimidate

opponents. The political power was well aware that its actions were not in accordance

with the law and human rights. But all the same, thanks to the weakness and the division

of the opposition parties, it chose to pursue this questionable approach for political

reasons and ends.

The various European and international authorities regularly called on the government to

lift the state of emergency as quickly as possible and to respect human rights. However,

Some private banks refused to open bank accounts and pay the money transferred to former public officials

on the grounds that they were dismissed by the EDLs. Some insurance companies refused to pay

compensation for car accidents to the expelled public officials.

The words of the Minister of the Interior are important to understand the perception of human rights at

political level: "we fight with cultural terrorism... the so-called rights of women, the so-called human rights,

the so-called peace, the so-called environment, ecology… They are all veils, masks. Who uses this? Terrorist

organizations… "Türmen, Rıza (Former Turkish judge at the ECHR) (9 March 2020). "Özgürlükler Ülkesi

Türkiye". T24. [Accessed on: 09.03.2020]. Available at https://t24.com.tr/yazarlar/riza-

turmen/ozgurlukler-ulkesi-turkiye,25795

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the political authority chose to remain indifferent to these appeals and criticisms. In this

sense, the influence of external actors was particularly limited.

The massive dismissals of public officials and several other acts implemented by the EDLs

were in contradiction with the ECHR. Although all domestic legal channels were

ineffective, the ECHR chose, for political reasons, not to examine the appeals of the

expelled officials. The Council of Europe has advised alternative methods, such as

establishing a national commission to examine dismissal cases. In fact, this approach of

the Council of Europe and the ECHR further encouraged the ruling class to prolong the

state of emergency and its practices.

Finally, it should be emphasized that any campaign to combat terrorism must be

conducted with full respect for human rights and rule of law, two essential elements for

its long-term success. Respect for rule of law does not diminish, on the contrary, adds to

the effectiveness of efforts to fight terrorism. For the proper functioning of the democratic

system, it is crucial to preserve a fair balance between security measures, which are by

nature restrictive, and the protection of fundamental rights (Council of Europe,

CODEXTER, 2013: 1).

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