RESEARCH

A Report from the Turkey Litigation Support Project Securing access to justice in Turkey remains a big challenge, especially for those whose rights were violated during the State of Emergency declared in July 2016. During the State of Emergency, the Government adopted a number of “atypical” emergency measures under more than 30 executive decrees seriously limiting and, in some cases, totally waiving numerous fundamental rights and freedoms by relying on exceptional powers under the Constitution. One hundred thousand public sector workers were dismissed and legal entities including newspapers, television companies, associations and foundations were closed down without individualized reasoning or evidence to support these actions. For a long time, the lack of a clear avenue for appeal of these decisions left those affected in obscurity. Following the adoption of the Decree Law No. 685, establishing the State of Emergency Inquiry Commission (“the Commission”), tens of thousands of people who were dismissed and the entities closed under the emergency decree laws have been forced to apply to the Commission before having recourse to a judicial remedy. A year after the operation of the Commission, the Turkey Human Rights Litigation Support Project (TLSP), started to carry out a research study to assess whether the Commission offered an effective remedy to challenge measures adopted during the state of emergency or whether it stood as yet another obstacle for victims to overcome in order to access justice in Turkey. During the study our researcher and the TLSP team reviewed the decisions and reasoning adopted by the Commission in 193 applications as well as national legislation, reports and statistics. The project collected qualitative and quantitative data supported by interviews with lawyers, applicants and experts and prepared an evaluation report by analysing this data. In this report, the Commission’s structure and functioning is evaluated by taking into account the main human rights issues with regards access to justice. Moreover, the decisions of the Commission are examined to determine whether it constitutes an effective legal remedy, in theory and in practice, in the light of the standards of the right to an effective remedy under international law. In the light of this data, the study on the State of Emergency Inquiry Commission reached the following conclusions: The Commission which was established as an ad hoc remedy does not have structural and practical safeguards ensuring its independence and impartiality and fails in capacity to provide a fair and effective process in the review of emergency measures. Applicants are forced to prove that they have no links with any proscribed groups or organisations without any prior knowledge about accusations or evidence against them. The situation is exacerbated by the lack of transparency and denial of meaningful participation in proceedings before the Commission. In the assessment of a person’s alleged link with a proscribed group, the Commission uses a very low evidential threshold, criminalizing everyday life practices without requiring proof of any disciplinary or criminal wrongdoing. Among others, the Commission mainly relies on intelligence information, confidential witness statements or unverifiable information obtained from so-called “social circles” without any possibility given to the applicants to challenge them. Finally, having rejected the vast majority of the applications in the proceedings short of fundamental due process guarantees, and with many more applications still pending before it, the Commission has demonstrably failed to meet with the standards of the right to an effective remedy under international law.

On 28 May 2019, the Human Rights Committee of the International Covenant on Civil and Political Rights (ICCPR) delivered its opinion on the detention of İsmet Özçelik, and Turgay Karaman following the 15 July 2016 attempted coup d’état. Both İsmet Özçelik and Turgay Karaman are considered by the Turkish authorities to be connected to the Gülen movement, and were detained and forcibly removed from Malaysia under Malaysian anti-terrorism legislation by individuals acting under the control or instructions of Turkish authorities. No extradition hearing was held and there was no judicial decision to that effect taken. Upon return to Turkey, İsmet Özçelik and Turgay Karaman were held incommunicado and claimed that they were at risk of being tortured and ill-treated in violation of Articles 6 (right to life), 7 (prohibition on torture, cruel, inhuman or degrading treatment), 9 (right to liberty and security of person), and 10 (conditions of detention) of the Covenant. Under Article 14, the authors have further claimed their right to a fair trial had been violated as they were not provided with prompt legal assistance, nor were they informed of the charges against them. The complaint was initially brought in May 2017 by family members of the authors, who complained to the Committee that the applicants were being held in detention and at risk of being subjected to torture at an unknown location. Ordering interim measures on 19 May 2017, the Committee requested Turkey to take all necessary measures to: confirm the whereabouts of the authors; bring them immediately under the protection of the law; take all measures necessary to enable the authors to be in contact with their relatives; promptly bring them before a judge; and finally to give them access to a lawyer of their choice. In October 2017, the Committee denied Turkey’s request to lift interim measures and again requested that the individuals be given access to a lawyer of their choice, prompt medical care and the ability to communicate with and be visited by their family members, counsel or other individuals of their choice. Finding Turkey to be in violation of the ICCPR and requiring the release and compensation of the authors, who remain in detention, the opinion is an important one. In its opinion, the Committee considers in detail both the necessity and proportionality of the detention of individuals under state of emergency decrees, the compliance of Turkey’s derogation with Article 4 of the ICCPR, the effect of the coup attempt on Turkey’s justice system and its impact on the requirement of exhaustion of domestic remedies, and the effectiveness of the Constitutional Court as a means to challenge detention in these circumstances. Although the Committee draws on the case law of the European Court of Human Rights (ECtHR), it reaches several important conclusions that are different to the ECtHR’s - most notably on the issue of the effectiveness of the Constitutional Court as a remedy. Rendition from Malaysia to Turkey On the issue of rendition, the Committee found the author’s claims to be inadmissible. In particular, it found that the information on file could “not allow it to conclude that the authors were removed to Turkey under the effective control of Turkish authorities.” An individual opinion of Mr. Gentian Zyberi, dissenting on this point, argued that the Committee should have found Turkey responsible for violating Article 9 which guarantees the right to liberty and security of the person, based on its complicit and active role in the authors’ unlawful removal from Malaysia. Admissibility: State of Emergency Derogations and The Exhaustion of Domestic Remedies Turkey challenged the admissibility and merits of the authors’ claims under Articles 9, 10 and 14 of the Covenant on two grounds. Firstly, they argued that the measures complained of fell within the scope of Turkey’s derogation under Article 4. In this light they argued that the measures adopted under emergency decree laws were both necessary, proportionate, and in pursuit of a legitimate aim in the wake of the attempted coup. Secondly, they argued that the author’s claims were inadmissible on the grounds of failure to exhaust domestic remedies, as they had not appealed the detention decision of the Ankara Criminal Magistrates’ Office, nor had they made an individual complaint to the Constitutional Court. On the issue of exhaustion of domestic remedies, the Committee took note of the authors’ arguments that filing an individual application before the Constitutional Court could not constitute an effective remedy as: a) the Court is not competent to deal with measures imposed under the state of emergency decree laws; b) the process would be unreasonably prolonged; and c) they are unable to rely on effective legal representation and assistance in order to appeal to the Constitutional Court. Dealing with these assertions, the Committee refenced two decisions of the ECtHR that expressed concern as to the effectiveness of a remedy of an individual complaint to the Constitutional Court in cases of pre-trial detention, as a result of the non-implementation, by lower courts, of the Constitutional Court’s findings of a violation (see Mehmet Hasan Altan v Turkey and Sahin Alpay v Turkey). The Committee further noted, again referencing the ECtHR, that the burden of proof lies with the government to prove that the remedy of an individual complaint to the constitutional court was effective “both in theory and in practice.” Applying these principles to the present case, the Committee found that the government had failed to include any information in the file that would support the effectiveness of the remedy of a complaint before the Constitutional Court and were therefore unable to show that it would have been effective to challenge the authors’ detention under state of emergency decree laws before the Constitutional Court. Turkey also submitted that the author’s claims under articles 6, 7, 10 and 14 of the Covenant were inadmissible for failure to raise them before a domestic authority. In response, Mr. İsmet Özçelik argued that he had no knowledge of Turkish criminal procedure, and that his lawyer, who had been assigned by the Turkish Bar Association, had taken no action despite being informed that his client had been subject to ill-treatment, instead trying to persuade him to confess to crimes he did not commit. Emphasizing that the authors of communications “must exercise due diligence in the pursuit of available remedies” the Committee found that the authors had not provided any specific information or substantiation of having raised the issues before relevant authorities or their own counsel, and therefore found these claims to be inadmissible. While agreeing with the Committee that authors of communications must exercise due diligence in the pursuit of available remedies, Mr. Gentian Zyberi in his partly dissenting opinion held “such pursuit can only take place in an environment which is conducive to such efforts.” Highlighting the fact that one third of judges and prosecutors had been dismissed in the wake of the coup, and 2,386 judges and prosecutors detained, he argued that the Turkish legal system does not provide an environment conducive to upholding the standards of due process. The prolonged detention without charge or trial, within this context, “should have guided the Committee to put more weight to the second sentence of Article 5(2)(b) of the Optional Protocol, which justifies non-exhaustion of domestic remedies when unreasonably prolonged.” Regarding Turkey’s submission that the acts in question fell within the scope of a valid derogation under Article 4, the Committee noted that the two necessary conditions for valid derogation had been met. Namely, that the situation arising in the wake of the coup amounted to a public emergency threatening the life of the nation (as confirmed by the European Court of Human Rights and the Turkish Constitutional Court) and that the official state of emergency had been properly proclaimed. However, when assessing the measures adopted under the state of emergency, the Committee found that Turkey had failed “to explain how the authors were linked to or posed, in any way, dangers that were envisaged under the declaration of the state of emergency in the territory of the State party, or how their pre-trial detention under the emergency decree laws was strictly required by the exigencies of the security situation.” In this regard, the Committee found the measures adopted in this case did not comply with the principles of proportionality, consistency and non-discrimination. The Merits: Reviewing the Arbitrary Nature of the Authors’ Detention The Committee reiterated that “the fundamental guarantee against arbitrary detention is non-derogable” and that even situations under article 4 “cannot justify a deprivation of liberty that is unreasonable or unnecessary under the circumstances.” When assessing arbitrariness however, the existence and nature of the public emergency are relevant considerations. The notion of arbitrariness is interpreted by the Committee broadly “to include elements of inappropriateness, injustice, lack of predictability and due process of law, as well as elements of reasonableness, necessity and proportionality.” When reviewing the authors’ detention in light of this, the Committee highlighted that there was no evidence provided to substantiate the State’s claim that the authors had been promptly informed of the reasons for their arrest or the charges against them. In addition, the Committee found that there was no evidence provided to justify the detention of Turgay Karaman, and the only evidence against İsmet Özçelik was the use of the Bylock application and the deposition of funds in the Bank Asya. This failed to meet the criteria of reasonableness and necessity. The authors’ detention therefore amounted to a violation of their rights under article 9 (1-2) of the Covenant. The Committee also paid close attention to the right to be brought promptly before a judge or other officer authorized by law to exercise judicial power. While the exact meaning of “promptly” may vary depending on objective circumstances, the Committee reiterated that delays should not exceed a few days from the time of arrest. Any delay longer than 48 hours must remain absolutely exceptional, any derogation from this time frame in times of public emergency must be justified as strictly required by the exigencies of the situation and periodically and consistently re-examined in light of possible alternatives. The fact that the authors’ case took 11 days to be brought before a judge and has not been re-examined since could not be considered as strictly required by the exigencies of the situation, and therefore constituted a violation of Article 9 (1-3) of the Convention. In accordance with article 2(3)(a) the Committee found Turkey is under an obligation to provide an effective remedy to the authors, in this case the release and provision of adequate compensation for the violations suffered. The Committee has given Turkey 180 days to provide information about the measures taken to give effect to the Committee’s views.

On 5 March 2019, the European Court of Human Rights communicated the case of Kerestecioglu Demir v. Turkey with the Turkish Government. The applicant, Ms Kerestecioglu, challenges the waiver of her parliamentary immunity through a constitutional amendment procedure allowing a prosecutor to pursue a criminal investigation against her on account of her participation in a peaceful public assembly as a Parliamentarian. The applicant alleges that she is being prosecuted due to her political views as an opposition politician, amounting to a violation of her right to freedom of opinion and expression protected under Article 10 of the Convention. On 1 November 2015 the applicant was elected as a deputy and since then she has been carrying out her role as parliamentarian in the National Assembly. A prosecutor filed an investigation report against the applicant for her attendance at a public assembly, which was transmitted to the Parliament for the waiver of her immunity. On 20 May 2016 the National Assembly passed a constitutional amendment by inserting a provisional Article in the 1982 Constitution. Pursuant to the amendment, parliamentary immunity was lifted in all cases where requests for waivers of immunity had been transmitted to the National Assembly before the date of its adoption. The Court posed the following questions to the parties: Has the applicant exhausted domestic remedies? Particularly, considering the relevant judgments of the Turkish Constitutional Court (TCC) whether the applicant was obliged to bring an individual application before the TCC? Does the lifting of immunities following the constitutional amendment amount to an interference in the applicant’s right to freedom of expression, as a member of the opposition, within the meaning of Article 10 of the Convention? If so, is the alleged interference prescribed by law and necessary in a democratic society? In particular, could it be considered that the lifting of parliamentary immunities is outside the standard procedure prescribed by Articles 83 and 85 of the Constitution, corresponds to a "pressing social need" and is "proportionate to the aim legitimate aim' within the meaning of the Court's case-law? Regarding the decision of the legislature following to the constitutional amendment procedure, did it have a deterrent effect on the exercise by the applicant of her right to freedom of expression? What would be the concrete consequences of the lifting of the applicant's parliamentary immunity? Parties are invited to submit relevant documents relating to the criminal investigation against the applicant. This case is important as it is one of the first to evaluate the stripping of parliamentary immunity of an MP and potential repercussions of a criminal prosecution on the freedom of expression and political activities of an opposition politician

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.