Commission of Europe - Commissioner of Human Rights

The Commissioner finds that the deterioration in Turkey regarding media freedom and freedom of expression represent an “existential threat to Turkish democracy” and recommends “the need for a complete overhaul of the Turkish Criminal Code.” In addition, the Commissioner highlights a need for crucial legislative changes to the Internet Law and the Radio and Television Law, which together are being used to punish critical media, journalists and academics. In connection with this, and in light of the implementation of a state of emergency, the memorandum criticises the transformation of criminal judges of the peace “into an instrument of harassment to stifle opposition and legitimate criticism […] as well as of controlling the information available to the general public, including on the Internet, in cooperation with the prosecutors who have become even more active in targeting critical voices than before.”


The Commissioner raises concerns about the adverse effects of open-ended round-the-clock curfews, and the use of force during the anti-terrorism operations in the south-east of Turkey. The following issues are addressed: problems regarding the legality and proportionality of curfews, the alleged human rights violations committed by security forces, the entrenched problem of non-accountability and impunity, and the prevention of the independent observers to access to the effected zones.


The Commissioner finds that “it is time for the Turkish authorities to curb certain excesses of the state of emergency” and argues the authorities “should immediately start repealing the emergency decrees, starting with provisions which allow the highest degrees of arbitrariness in their application and stray the widest from ordinary guarantees.” Concerning criminal proceedings, the memorandum identifies consistent reports of torture and ill-treatment as “among the most immediate human rights concerns” and urges the authorities to “revert to the situation before the state of emergency” with regard to procedural safeguards for detention. In addition the Commissioner urges authorities to communicate very clearly “that mere membership or contacts with a legally established and operating organisation, even if it was affiliated with the Fethulla Gulen movement is not sufficient to establish criminal liability and to ensure that charges for terrorism are not applied retroactively to actions which would have been legal before 15 July.” In relation to administrative procedures concerning those employed in the public sector, the Commissioner urges authorities to “render much more transparent the criteria to be retained to prove membership of FETÖ/PDY and other terrorist organisations, the degree beyond which contacts with these organisations can incur sanctions, as well as the kinds of information and evidence the authorities must assess to establish liability. At a minimum, persons should be able to have access to evidence against them.” Regarding civil society and the private sector, the Commissioner raises concerns related to the administrative procedures being used to close down these organisations, and asset seizure. In particular, he criticises the lack of due process, and safeguards. Measures targeting family members of suspected individuals and a lack of effective legal remedy are also criticised.


Parliamentary Assembly of the Council of Europe

The resolution reminds Turkey that the state of emergency should be strictly limited in time and effect and should therefore be lifted as soon as possible. Referencing the adoption of security measures to fight terrorism, the resolution stresses “Turkey’s right and duty to fight terrorism and address security issues in order to protect its citizens and its democratic institutions […] must adhere to the principles of rule of law and human rights standards, which require any interference with basic human rights to be defined in law, necessary in a democratic society and strictly proportionate to the aim pursued, in accordance with international obligations, which includes the revision of legislation and practices on terrorism in line with European standards.” Referring to deterioration since the coup, the resolution refers to the diminishing independence of parliament and the judiciary and “decides to reopen the monitoring procedure in respect of Turkey until its concerns are addressed in a satisfactory manner.”


Venice Commission on Turkey

The opinion finds that the decree law enabling appointment of unelected mayors, vice-mayors and members of local councils and the exercise of discretionary control over the functioning of the concerned municipalities (without judicial review) raises concerns in terms of compliance with the procedural and substantial rules on the state of emergency and with local governance principles enshrined in the Charter of Local Self-Government. The Commission recommends 1) repeal of the provisions which are not necessitated by the state of emergency; 2) the implementation of provisions for adequate judicial review for those provisions implemented via emergency decrees but with permanent lasting effects; and 3) the setting up of a framework for the reinstatement of suspended/dismissed local representatives where terrorism charges do not lead to conviction.


The report examines the effect of a number of emergency decree laws on freedom of the media in Turkey, addressing the following: 1) the liquidation of media outlets; 2) criminal law and criminal procedure in relation to freedom of expression; and 3) decree Law no. 685 (creating an inquiry commission to examine cases of liquidated media outlets). The report concludes that while certain measures may have been necessary in the immediate aftermath of the coup – “such measures as mass liquidations of media outlets on the basis of the emergency decree laws, without individualized decisions, and without the possibility of timely judicial review, are unacceptable in light of the demands of international human rights law, and extremely dangerous.” As such, the Venice Commission calls on the Turkish authorities to: 1) supplement Decree Law no. 685 with a provision requiring that individuals and legal entities affected by the emergency measures be made aware of the specific reasons for those measures and the factual basis thereof, in order to enable them to make their case before the inquiry commission, and that decisions of the inquiry commission be individualised, reasoned and based on verifiable evidence; 2) ensure that the inquiry commission has the powers to restore the status quo ante and that it has the power to grant priority treatment to the most urgent applications, including those introduced by the media outlets; 3) ensure that the journalists are not prosecuted under the heading of “membership” of terrorist organisations (and alike); 4) ensure that where journalists are prosecuted essentially because of their publications, pre-trial detention is not imposed on the sole ground of the gravity of the charges which are derived from the content of their publications; and 5) Repeal any measure taken by emergency decree laws which is not strictly necessitated by the state of emergency.


The opinion relates to constitutional amendments adopted in Turkey in January 2017 by the Grand National Assembly, which were eventually passed by a referendum in April 2017. The opinion focusses on the timing and regularity of the the procedure of the reforms, the separation of powers, and whether the reforms ensure sufficient judicial independence. The opinion finds the amendments to “constitute a decisive break in the constitutional history of the country” and highlights the risk of the marginalisation of parliament and the increasing power of the President. The opinion also finds the amendments to seriously weaken “an already inadequate system of judicial oversight of the executive.”


This opinion contains a specific section on “problems of the functioning of judgeships of peace during the state of emergency,” focusing on Article 6.1g of Decree Law no. 667 (providing the power to remove the right for a lawyer to exercise advocacy). Using the example of case 2016/5120 M decided by the Istanbul Criminal Peace Judgeship No. 2 in relation to Mr Omer Kavili, the opinion finds “there is not a single argument of reasoning to justify such a drastic measure.” The issue of dismissals of the judiciary is also briefly addressed.


The Venice Commission concludes that the state has “interpreted its extraordinary powers too extensively and [has taken] measures that went beyond what is permitted by the Turkish Constitution and by international law.” The major concerns relate to a lack of oversight exercised by the Parliament or the Constitutional Court, permanent measures that extend beyond the state of emergency (such as dismissal of civil servants and the dissolution of organisations, confiscation of property and structural changes to legislation). With reference to collective dismissals, the Commission notes that these were not individualised and did not refer to verifiable evidence related to each individual. As such, the basic rights of administrative due process of public servants dismissed by the decree laws were not respected. With regards to criminal procedures, extension of the time limit for detention is highlighted as problematic as is limited access of lawyers to their clients, and reduced safeguards to protect detainees from abuses.


This opinion is the first of the Venice Commission to be adopted after the failed coup attempt, and concerns the suspension of Article 83 of the Constitution guaranteeing parliamentary inviolability of members of the parliament adopted on 12 April 2016. The Commission describe the amendment as an ad hoc ““one shot” ad homines measure directed against 139 individual deputies” that “maintained the regime of immunity established … in the constitution for the future but derogated from this regime for specific cases concerning identifiable individuals” constituting a misuse of the amendment procedure. The Commission found inviolability to be an essential guarantee for the functioning of the parliament in the context of the state of emergency, particularly in relation to the safeguarding of freedom of expression. 


The opinion concerns the compatibility of the legal framework governing curfews in Turkey with European and Council of Europe standards. The Commission finds that the curfews imposed since August 2015 “have not been based on the constitutional and legislative framework which specifically governs the use of exceptional measures in Turkey” as it is not associated with emergency rule provided for in the Constitution but rather by the Provincial Administration law. The law on which the decisions imposing curfews are based “and the decisions themselves do not meet the requirements of legality enshrined in the Constitution and resulting from Turkey’s international obligations in the area of fundamental rights, in particular under the ECHR and relevant case-law.” 


The opinion concerns Articles 216 (provoking the public to hatred, hostility or degrading), 299 (insulting the president of the republic), 301 (degrading the Turkish Nation, State of Turkish Republic, the Organs and Institutions of the State) and 301 (membership of an armed organisation) of the penal code. The Commission finds that together they “provide for excessive sanctions and have been applied too widely” penalising the freedom of expression as protected under the ECHR and ICCPR, and “underlines that prosecution of individuals and convictions in particular by lower-courts, which have a chilling effect on the freedom of expression, must cease.” 


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The United Nations

The report raises concerns about the adverse effects of the measures undertaken following the declaration of the state of emergency on the enjoyment of human rights. The following issues are addressed: the massive scale of dismissals of public officials, judges, and prosecutors; the mass 21 arrests of members of parliament belonging to the People’s Democratic Party (HDP), municipal mayors and journalists; the closure of Kurdish language local and national media outlets; fair trial rights; and the deterioration of detention conditions. 


The report highlights a “constantly deteriorating human rights situation, exacerbated by the erosion of the rule of law.” Particular attention is paid to the emergency decrees passed by the government, which “foster impunity and a lack of accountability, by affording, legal, administrative, criminal and financial immunity to administrative authorities acting within the framework of the decrees.” Concerns regarding the non-reviewability of these measures by the constitutional court and the effect of this on the separation of powers are raised, as are their expanding scope. The arbitrary dismissal of civil servants and the functioning of the Commission of Inquiry for State Emergency Practices are also considered, concluding (in line with the findings of the Venice Commission) that the Commission “cannot be considered as an independent body that will guarantee full respect of due process. It regrets the lack of appropriate remedies to address thousands of dismissals of employees, liquidation of thousands of private entities, including health and education institutions, as well as trade unions.” 

 

 

UN Working Group on Arbitrary Detention

The opinion concerns the arrest on 31 October 2016 of Messrs, Çelik, Günay, Güngör, Gürsel, Kara, Kart, Sabuncu, Utku and Öz – who were subsequently detained for 4 days without access to a lawyer. Mr. Atalay was arrested at the airport on 11 November 2016 and presented to the Court on 12 November 2016. The government argued that this was justified under article 3 (entitled “Investigation and prosecution procedures”) of Decree Law No. 668 of 27 July 2016, under which the right of the suspect in custody to see a defence counsel may be restricted for five days upon the decision of the public prosecutor. The Working Group found violations of Articles 10, 11 and 19 of the Universal Declaration of Human Rights and of Articles 14, 15 and 19 of the International Covenant on Civil and Political Rights. Additionally, the opinion considered the chilling effect of emergency laws on freedom of expression. 


The opinion concerns the Mestan Yayman, who used to be a Vice-Governor of the city of Antalya. Mestan Yaman was dismissed from his job under Statutory Decree No. 672 on 1 September 2016. On the same day as his dismissal from his post, he was taken into custody. The government argued that the situation falls under the scope of the derogations from the ICCPR made under the state of emergency. However, given that the arrest and detention took place without an arrest warrant, formal charges were delayed and he was prevented from exercising the right to challenge the legality of his detention - his arrest and detention were arbitrary. The Working Group highlights the fact that the case is one of many concerning individuals accused of links to the Gülen group and finds, in accordance with the opinion of the Council of Europe Commissioner for Human Rights, that “a pattern is emerging whereby those who have been linked to the group are being targeted, despite never having been active members of the group or supporters of its criminal activities” and considers Yaman’s detention to be arbitrary since it “constitutes discrimination on the basis of political or other opinion or status.”


The opinion concerns the deportation and subsequent detention of the Kaçmaz family, who were forcibly removed from Islamabad and flown on an unmarked aircraft to Istanbul. The family was removed without passports or identification and were held incommunicado in secret detention for 17 days in Pakistan, depriving them of their right to challenge their detention and to legal representation. The Working Group finds the deprivation of liberty to be arbitrary and in contravention of of articles 5, 6, 8, 9 and 10 of the Universal Declaration of Human Rights and articles 2, 2 (3), 7, 9, 13, 14 and 16 of the International Covenant on Civil and Political Rights. Turkey is found to be jointly responsible for the arrest and detention in Islamabad. Regarding the continuing detention of Mr and Mrs Kaçmaz upon arrival Turkey, the Working Group finds the detention to be arbitrary, and discriminatory on the grounds on the basis of their political opinion. Turkey is thereby in contravention of articles 5, 6, 8, 9, 10 and 11 (1) of the Universal Declaration of Human Rights and articles 2, 2 (3), 7, 9, 13, 14 and 16 of the International Covenant on Civil and Political Rights. The Working Group urges immediate release and compensation.


The opinion concerns the arrest on 21 July 2016, and continuing detention, of Mr. Çevik. After 6 months of detention without charge, Mr. Çevik was formally charged with membership of a terrorist organisation. The Working Group found a violation of article 14 of the International Covenant on Civil and Political Rights on the grounds that Mr. Çevik  was not granted adequate time and facilities for the preparation of his defence, and was denied the opportunity to communicate with counsel of his own choosing. Additionally, the Working Group found that the delay in appeal proceedings before the Constitutional Court violates article 9(4) of the Covenant. The Working Group “urged the Government of Turkey to adhere to its human rights obligations, including the fundamental elements of due process, even under the state of emergency.”