Complaint concerning the suspension of the Council of the Greater Municipality of Diyarbakır in South-eastern Turkey filed before the UNHRC

On 4 April 2019, a complaint concerning the suspension of the Council of the Greater Municipality of Diyarbakır in south-eastern Turkey was lodged with the United Nations Human Rights Committee (UNHRC). The Turkey Litigation Support Project worked with Mr Cihan Aydin, representative of the 6 applicants. Under Emergency Decree Law No. 674, the applicants, who were at the time elected members of the Municipal Council, were prevented from holding meetings and participating in public affairs. Their functions were assumed by a ‘trustee’ appointed by the government under Emergency Decree Law No. 674, a situation that continues despite the lifting of the state of emergency.

Before the UNHRC, the applicants contend that Turkey, a state party to the International Covenant on Civil and Political Rights (ICCPR), has failed to meet the requirements necessary for lawful derogation under Article 4 and that the suspension of the Council of the Greater Municipality of Diyarbakir constitutes violations of Articles 25, 26 and 2(3) of the ICCPR. The notice of derogation was insufficiently precise, the measures were still ongoing at the time the complaint was submitted, and the measures have neither been shown to be necessary or proportionate to the stated aims of the fight against terrorism.

 Moreover, restrictions adopted by Decree Law No. 674 cannot be said to be lawful and reasonable. The law lacked clarity and foreseeability, and was neither necessary or proportionate in its aim of addressing the perceived national security threat. Additionally, it lacked sufficient legal safeguards and has been applied arbitrarily. There has thus been a violation of the applicants’ and the electorate’s rights under Article 25 (a) and (b) of the ICCPR as they were prevented from exercising their right to take part in the conduct of public affairs through the election of representatives after the suspension of the Municipal Council.

 The applicants also complained that the law in this case was applied in a manner that targeted predominantly Kurdish politicians and those of a particular political opinion, thereby constituting a violation of the right of the applicants to non-discriminatory treatment under Article 26 of the ICCPR.

 Lastly, the complaint raises concerns surrounding the independence, impartiality and competence of the judiciary in Turkey. The influence of the executive over these bodies, as well as confusion and lack of access to adequate legal avenues for redress, has contributed to an ineffective basis for legal remedies for rights violations flowing from state of emergency measures. The Constitutional Court’s decision to reject the applicants’ case on the grounds that it is unable to constitutionally review legislative acts, has resulted in a clear lack of accessibility to even the very possibility of an effective domestic remedy for the rights violations suffered by the applicants. In the absence of any other available remedy, or adequate aggregate of remedies, this constitutes a violation of Article 2(3) when read with Articles 25 and 26 of the ICCPR.

 For more information on the case, contact us at info@turkeylitigationsupport.com

Hüseyin Uzun v Turkey - The impact of State of Emergency Measures on the Right to Education

On 8 January 2019, the European Court of Human Rights communicated the case of Hüseyin Uzun v Turkey with the Turkish Government. The applicant, Mr Uzun, challenges Emergency Legislative Decree No. 677 on the grounds that it violated his right to education protected by Article 2 of Protocol 1 of the Convention.

On 2 August 2016, the applicant Mr Uzun, was placed in pre-trial detention in Burdur Prison on suspicion of being a member of the FETÖ / PDY organisation. At the time, Mr Uzun was enrolled in a training program at the Anadolu University of the Faculty of Public Administration. On 23 November 2016, the prison administration sent Mr Uzun a copy of decree law no. 677 notifying him that he could not, under Article 4 of the Decree, participate in exams for the duration of the state emergency, and the entire duration of his detention. 

On 22 December 2016 the applicant lodged an individual petition before the Constitutional Court, alleging that the ban introduced by the emergency decree law violated his right to education. Mr Uzun’s appeal was dismissed as manifestly ill-founded by the Constitutional Court on 18 June 2018. The Court held that the refusal to allow the applicant to sit his exam was based on an emergency law pursuing a legitimate aim, namely to ensure the discipline and security within the prison establishment. The Court indicated that as a result of the attempted coup, many persons accused of terrorist offences had been detained and/or convicted on similar charges, and therefore the number of officers responsible for the safety and protection of detainees had decreased significantly. In light of these elements and the Court’s previous decision in Mehmet Ali Eneze, it could not be said that the restriction on the applicants right to education was not necessary to achieve a legitimate aim. 

The Court posed the following questions to the parties:

• Did the inability of the applicant to sit his university exams as a result of the ban introduced by Legislative Decree no. 677 infringe his right to education as guaranteed by Article 2 of Protocol o 1 to the Convention?

• The government was invited to provide information on the number of prisoners affected by the ban introduced by Legislative Decree no. 677, as well as information on the different types of exams available to detainees and their organisation.

This case is important as it is one of the first to evaluate interference with the right to education during a state of emergency.

European Court of Human Rights: Cancellation of passports of Turkish academics threaten academic freedoms

On 5 March 2019, the Turkey Litigation Support Project, Amnesty International, ARTICLE 19 and PEN International submitted a third party intervention before the European Court of Human Rights (ECtHR) on the key case concerning the cancellation of passports of three academics from Turkey – Alphan Telek, Edgar Şar and Zeynep Kıvılcım. In retaliation for signing a petition calling for peace in Southeast Turkey known as the “Academics for Peace” petition, the three scholars were dismissed from their jobs, had their passports cancelled and banned from public service under Turkey’s state of emergency legislation.

The intervention highlights the importance [and cross-cutting nature] of academic freedom, and the risks that restrictions such as the one in this case pose to academics’ right to private life and the right to freedom of expression.  It also stresses the right to an effective remedy as a non-derogable right, even under a state of emergency. 

Helen Duffy, the co-supervisor of the newly formed Turkey Litigation Support Project, which coordinated the intervention, said “our joint intervention reminds the Court of the vital importance of academic freedom, democratic debate and access to effective remedies - all of which are under serious attack in Turkey today.”

Sarah Clarke, ARTICLE 19’s Head of Europe and Central Asia, said, “restrictions to academic freedom, as a result of the exercise of free opinion through the signature of a petition calling for peace are inacceptable. ARTICLE 19 has previously expressed concern over the violation of the right to freedom of expression in the “Academics for Peace” case and submitted an expert opinion on this case at national level. We now encourage the ECtHR to closely scrutinize any interference against the legitimate exercise of human rights in this case, and clearly question the effectiveness of domestic remedies in Turkey”. 

Carles Torner, Executive Director of PEN International, added, “these three individual cases illustrate the growing intolerance for critical voices in Turkey. Over 6000 academics have been dismissed under emergency decrees since July 2016, with devastating effects. The Academics for Peace case is a warning to all academics and intellectuals who would dare express dissenting views. With the effectiveness of domestic remedies for human rights violations being questioned by many, the ECtHR has a crucial role to play – in this particular case and beyond.”

 The UN Committee on Economic, Social and Cultural Rights highlights that despite the absence of a specific definition of academic freedom, this involves an institutional, individual and a public dimension. It is precisely in its latter dimension that academic freedom links with the building of a diverse and vibrant society. Any restriction on academic freedom may interfere with various other rights, including freedom of thought, expression, association, the right to education, liberty and security, freedom of movement and the right to a private life. 

According to UNESCO, restrictions on academics’ freedom of movement between states impedes the “interplay of ideas and information among higher education personnel throughout the world”, which the organisations submitting this intervention fear it represents an attack to academic freedom. Under international law, States should not only refrain from restricting such freedom, but also create and maintain a “conducive environment” for it to flourish, without imposing any restraints. Even in situations of emergency, restrictions on academic freedom must be in accordance with the law, must be necessary and accompanied by basic safeguards. In addition, restrictions imposed during an imposed state of emergency should be “exceptional and temporary” and should cease when the public emergency is over. 

The third party intervention also questions the existence of an enabling environment for the fulfilment of the right to effective remedy in Turkey. The UN Human Rights Committee underlines that “even if a State party, during a state of emergency, … may introduce adjustments to the practical functioning of its procedures governing judicial or other remedies, the State party must comply with the fundamental obligation … to provide a remedy that is effective”. 

Lucy Claridge, Director of Strategic Litigation at Amnesty International, stated “The right to an effective remedy is one of the basic rule of law guarantees that cannot be dispensed with even in an emergency. Our intervention urges the ECtHR to confirm that this right remains fully applicable at all times.”

Turkey Litigation Support Project

Amnesty International

ARTICLE 19 

PEN International

TLSP represented in panel discussion

Ayşe Bingöl Demir participated in a panel discussion organized by Research Institute on Turkey (‘RIT’) on 1 February 2019. For the link of the event, see here.

Mehmet Osman Kavala v. Turkey (Application no. 28749/18)

TLSP and PEN International submitted written comments on 16 January 2019 as third party interveners in the case of Mehmet Osman Kavala v. Turkey (Application no. 28749/18) concerning pre-trial detention of a prominent civil society leader, publisher and human rights defender (HRD). The submission provides the Court with an outline of the factual context in respect of the situation of HRDs in Turkey. It addresses international standards governing the nature of states obligations towards HRDs and reflects on principles of human rights and criminal law that constrain a rule of law approach to resort to criminal law.

Our written comments are available here. The Council of Europe Commissioner for Human Rights also intervened in this case on 20 December 2018. Her submission can be found here.

Tunc and Yerbasan v. Turkey (Applications nos 4133/16 and 31542/16)

Hearing on Tunc and Yerbasan v. Turkey (Applications nos 4133/16 and 31542/16) was held on 13 November 2018 before the ECtHR.  Prof Helen Duffy was present at the hearing as advisors to the lawyers of the Applicants. The webcast of the hearing can be watched here.

Telek and two other applications v. Turkey

ECtHR communicated the case of Telek and two other applications v. Turkey on 26 September 2018. The case concerns the inability to travel abroad by the applicants, who were the signatories of the Academics for Peace petition, due the cancellation or non-renewal of their passports for an indefinite period of time under the state of emergency ruling. The communication of the Court can be found here.