THE REAL TRUTH ABOUT THE COMMISSION ESTABLISHED UNDER THE EMERGENCY DECREE LAW NO.685
This article was written by a lawyer in Turkey, requesting his name kept secret for security reasons
After 15 July coup attemp, the state of emergency was declared on 21 July 2016 across the country and then the emergency decree laws were issued one by one by the Council of Ministers over presiding of the President of the Republic. Within the context of the emergency decree laws, just like the firmans (commands) of the Sultans in Ottoman Empire, many regulations, which are not provisional but essential, in the field of fundemental rights and duties of the individuals were regulated which had gone beyond the restriction limits, provided in the Constitution.
Under these emergency decre laws no 667, 668, 669, 670, 672, 675, 677, 679, 683 and 686, almost a hundred thousand public servants were dismissed from the professions and hundreds of the unions, federations, confederations, private health&education organizations and institutions, the foundations and their universities, radio&television organizations, magazines, newspapers, news agents and many publications were shut down.
The legal remedies against these measures and administrative transactions, performed by the administrative boards under the authorization, granted by the decree laws, could not be put forth definitely by the academics or the practicers.
In other words, the persons concerned have not been informed up to now on the issue that whether those measures, taken under the emergency decree laws, are subjected to the judicial review in administrative courts or subjected to the individual application in the Constitutional Court. Under such a confused legal provisions, some of the persons concerned lodged their applications in administrative courts and the Council of State and some also submitted an individual application to the Constitutional Court in order to exhaust the domestic remedies. However, in its decision, the Council of State found that it did not have a jurisdiction to examine the merits of the application and it had remitted the case to the first instance court, holding it was primarly for the administrative courts to examine such applications. On the other side, the first instance administrative courts dismissed the applications for the absence of an administrative act. (Despite the applications, appealed to the Regional Courts against the decisions of the administarive courts have not been concluded yet, it is not difficult to guess the judgement of the Regional Courts.) Similarly, the Constitutional Court also has not given a decision about the individual applications, it is probably waiting for the issues be settled by the government firstly.
In addition, in its decision in case of Zihni/Turkey and Mercan/Turkey, the European Court of Human Rights (ECHR) declared the applications inadmissible for the non-exhaustion of the domestic remedies.
On the other side, the Council of Europe stated the fact that the Court would not be able to handle that huge influx of the applications in excess of ten thousands, lodged by the public servants against the dismissals under the emergency decree laws is of serious concern. In this context, the spokesman of the Court stated that the applications had increased significantly after the 15 July coup attempt and the decree laws were issued. Pointing out that the applications had raised enormously particularly in the past two weeks, he said that the Court could not forecast how many of those applications would be declared as admissible. Further, Thorbjorn Jagland, the Secretary General of the Council of the Europe also stated his concern about the issue and declared that each Turkish citizen had a right to lodge his application with the ECHR and called on the Turkish authorities to comply with the standards of the European Convention on Human Rights, otherwise the applications would continue to rise at an increasing rate.
Having regard to many conventions, one-sided and multilateral, of which Turkey becomes a party, Turkish authorities realized that it was impossible for them acting contrary to those conventions in a way issuing emergency decree laws in order to silence the opposition voices, otherwise, a hundred thousands of application will be lodged with the Court which is an undesireble outcome for the Turkish government. Accordingly, in order not to take a risk of facing general or individual measures, ordered by the ECHR and also prevent the applicants from applying to the ECHR, ‘the State of Emergency Procedures Investigation Commission’ was established under the emergency decree law no.685 on 23 January in 2017 to examine the transactions performed under the authorization granted by the emergency decree laws, issued up to now or henceforth.
The authorities of the Court declared the establishment of the commission pleasent. However, is the emergency commission, established under the decree law no.685, really an effective remedy to compensate the loss of the dismissed public servants and the closed institutions and also does it have a jurisdiction to order the reinstatement of the public servants in their positions or the reopening of the institutions in case of the dismissals or the closures are found unlawful? This issue is going to be examined in detail below.
2- What is the character of the commission established under the decree law no.685?
According to the decree law no.685, the persons concerned will lodge their applications with the comission, directly against the measures taken by the emergency decree laws on the grounds of having a membership, affiliation of, link or connection with the terrorist organization, structures, formations or groups which have been determined by the National Security Council to perform activities against National security of the State with no need to be performed of any other administrative transaction.
a)The Formation of ‘the State of Emergency Procedures Investigation Commission’;
Only one commission has been established across Turkey and consists of 7 members.
The determination of the members is as the following: 3 of the members shall be appointed by the Prime Minister from among the public officials; 1 member shall be appointed by the Minister of Justice from among the judges and prosecutors serving in the central, related and connected units of the Ministry; 1 shall be appointed by the Minister of Interior from among the head of Civilian Administration; 1 shall be appointed by the High Council of judges and Prosecutors (HCJP) from among the rapporteur judges serving in the Court of Cassation or the Council of State. The commission itself also elects a president and a vice president among its own members.
The commission will perform 2 years. In case of need, the Council of Ministers may extend the period for one year each time. In this case, the members of the commission will be determined again on the above-mentioned procedure. In this determination of the members, the former ones may take a duty.
The appointment of the members by the Primeminister is completely at his discretion without any restriction. The members, appointed by HCJP, will be appointed from among not the senior judges but the rapporteur judges, and the members, appointed by the Minister of Justice, will be appointed from among the judges serving in the Ministry. As we see, the members of the commission have neither a high profile nor a guarantee. They are also tend to submit to the pressure of the executives. On the other side, the politic and administrative bodies, appointing the members of the commisssion, gave the dismissal decisions themselves. So, this fact proves that the commission itself is nor independent neither impartial.
According to the article § 1 of Article 4: “ In case of launching an administrative investigation or permitted to be launched against any member of the commisison on grounds of having a membership, affiliation of, connection or link with the terrorist organization, any formation, structure or group which have been determined by the National Security Council to perform activities against National security, the membership of the members shall be terminated by the commission”. As to be seen, without a judicial or administrative decision, taken about the member, an administrative investigation, launched into the member, will cause termination of his/her membership. As a result of an investigation, launched by anyone from the Council of Ministers as a Prime Minister, signing the dismissals and the closure of the institutions, the membership will become terminated. Having regard to mess dismissals of ten thousands public officials from the professions without taking their defence on the charge of having a link to terrorist organization, a member who makes any decision that undermines the interest of the executives, may face an investigation, launched into himself/herself on charge of the same accusations.
b)The Duties of ‘the State of Emergency Procedures Investigation Commission’:
The issues that the commission will examine are made up of two parts. First part includes:
-the dismissals of the public servants from the public professions,
-the dismissals from being a student,
-the closure of the foundations, associations, unions, federations, confederations, private health&education institutions, private radio&television organizations, magazines, newspapers, news agents, publications,
-the issue of taking the rank of the retired personnel back.
Second part includes all the transactions, outside the scope of first item and performed directly in respect of the legal status of the natural and juristic personalities under the authorization granted by the emergency decree laws.
c) The Working Procedure of the Commission and the Application Procedures;
The applications to the commission will be made by means of the Governers of the provinces. The public servants may also lodge their applications with the public institutions where they had performed their duty before their dismissals.
The application time limit is determined as 60 days. In present cases, there are two choices. Firstly, those, who were dismissed under the emergency decree laws which entered into force before the date in which the applications can be submitted to the comission, will be able to apply to the commission within the sixty days after the date in which the applications can be submitted to the comission. Secondly, those who were dismissed under the emergency decree laws which entered into force after the date in which the applications can be submitted to the comission, will be able to apply to the commission within the sixty days after the publication of the decree law in the official gazzette.
There is one more issue which is not defined definitely in the emergency decree law no.685 is that whether the persons who brought a lawsuit in any judcial bodies before the establishment of the commission against the measures inside the scope of the duties of the commission should also apply to the commission or not. According to the provisional article § 1 of Article 3, they should apply to the commission.
The date in which the applications can be submitted to the commission, shall be declared by the Primeministry in 6 months following the publication of this article. The political will did not display a hurry in determination of the date, in which the applications will be submitted, as he did in the dismissals of a hundred thousands of the public servants and the closure of the hundreds of the institutions under emergency decree laws.
The most interesting point in this regulation is the prevention of the application of the article 10 of the Procedures of the Administrative Justice Code which is as follows: “the persons concerned may request the administrative authorities to implement an act or take an action that may be subject of a lawsuit. If the request is not replied within 60 days, it shall be deemed to be dismissed. The persons concerned may bring an action in the Council of State, administrative and tax courts, depending on the subject of the case, within the time limits running from the end of the sixty-day period.” In other words, in the provision of the emergency decree law regarding the commission, the waiting period of the applicants is not defined and further the time period in which the commission shall conclude the applicants is also not defined which means that the commission is granted an authorization to examine the applications in an undefinite time period. Accordingly, in case of an application is not replied in a definite time period, the applicants can not bring an action in the courts as they can do in line with the article 10 of the Procedures of the Administrative Justice Code.
According to the Article 13 of the emergency decree law no.685, the working procedures and the principles of the commission shall be regulated and also declared by the Prime Ministry on the proposal of the commission. This regulation is a problem all on its own because the working procedure of the commission is deprieved of a legal guarantees.
Moreover, the commission shall examine the applications over the files without holding a hearing, in accordance with the evidences, submitted in the application. This regulation not only presents none of the procedural fundemental rights which are necessary for all the bodies that will exercise the judicial power but also renders the right to defense useless.
In other words, the main procedural right of a suspect (even if he is a guilty and whatever the seriousness of a crime he committed), is the right to defense himself. To impose a punishment to him, the authorities should grant him a right to defense. Within the context of the dismissals of the public servants and also the closure of the institutions, any investigation had not been conducted or the disciplianary provisions of the Code of the Public Servants had not been applied. These persons were subjected to the imposement of the measures directly without being granted any of the fundemental principles of a fair trial notably as regards, right to defense, informing the accusation to the suspect, the right to know and discuss the evidences, the right to discuss the denouncement and announcements against himself etc.
Furthermore, the dismissed individual or a closed institution were subjected to measures on the grounds of “having a membership, affiliation of, link or connection with terrorist organization, structures, formations or groups which have been determined by the National Security Council to perform activies against National security of the State”. However, nor the structure, group or formation they were connected or linked with, neither, which acts of them displayed their affiliation or membership are definite. In this case, there is only one choice for the applicants to defense themselves, which is that they will set forth the claim of “they don’t have a membership or link with any structure, group or formation” due to be not informed of the accusation directed to themselves. This case is primarly contrary to the main fundemental principle of the international law and the equality of the arms. The choice of rendering the recourse to the commission available and accessible can not be substituted with granting the right to defense.
d) The Characteristic of the Decision of the Commission:
The commission shall render a dismissal or acceptance decision as a result of its examination.
1-In case of the acceptance of the decision, the decision can not be applied retroactively. Firstly, the decision of the commission isn’t an anulment decision. Although the commission establishes that the administrative act (transaction) that causes the dismissal or closure is contrary to the legal provisions, that act will not be able to be annulled. Accordingly, the status quo ante can’t possibly be instituted as a result of the acceptence decision of the commission.
The provisions of the acceptance decision are listed in Article 10 of the emergency decree law no.685 as the following:
“Article 10-(1) In case of the acceptance of the applications, filed by the dismissed public officials, the decison shall be informed to the State Personnel Presidency. The appointment proposals of these officials shall be made by the State Personnel Presidency to the staff and positions in line with their former status and titles in the institutions other than the institutions they had performed before except those officials whose charcing with a duty in other institutions due to their statu, title or the duties they had performed before are impossible. (…)
(2)In case of acceptence of the application, filed by the closed institutions, the provisions of the concerned decree law shall become abolished with all the outcomes and provisions relating the closed institutions beginning from the date following the publishing of the decree law.”
The above provision reveals that the applicants shall not be appointed to the institutions, where they had performed their duty before but to anywhere else under the commission’s discretion which renders the institution of the status quo ante impossible.
Furthermore, this regulation can not present any outcomes of the annulment action, which requires to put an end to the violation if there is an ongoing one and then return everything to the state as it was before as much as possible, also can not present any outcomes of the full remedy action, which requires to compensate the past losses of the victims during the violation.
2- In case of the dismissal of the application, the persons concerned may bring an annulment action against the dismissal decision of the commission in Ankara Administrative Courts that shall be determined by the High Council of Judges and Prosecutors.
The Judicial Review of the Decision of ‘the State of Emergency Procedures Investigation Commission’:
The Article 11 of the decree law no.685 provides: “The persons may bring annulment action against the commission decisions in Ankara administrative courts which are determined by High Council of Judges and Prosecutors (HCJP)”. As seen, in accordance with the provision, the persons concerned may bring annulment actions against not the acts of Minister of Council and the acts, performed based on the authorization granted by the decree laws, issued by the Minister of Council, but the dismissal decisions of the commission. So, the courts can not examine the legality of the emergency decree laws which cause the public officials dismissed and the institutions shut down.
With this regulation, considering that the current judiciary which has been completely taken under the control of the executives might render various decisions, the ruling party regulated that the persons concerned may bring an annulment action against the dismissal decision of the commission in only Ankara Administrative Courts that shall be determined by the High Council of Judges and Prosecutors.
On the other hand, there has been no provision regulated in the present decree law on the issue that what will be done about the lawsuits brought to the administrative courts and the Council of State and the individual applications submitted to the Constitutional Court against the measures taken under the emergency decree laws inside the scope of the duty of the commission. There is an emptiness on this issue. The courts concerned probably will not examine those cases on the merits and dismissing the applications on their procedures on the grounds that the recourse to the commission shall be available against all acts of the emergency decree laws. In fact, the courts should delay the examination of the cases brought by the applicants who also applied for the commission until the commission will conclude the application and in case of the acceptance of it by the commission, the court should dismiss the case, otherwise, in case of the dismissal of the application by the commission, the court should examine the case on its merits.
The emergency decree law no.685 provided a different judicial remedy for the members of the judiciary. According to the concerned provision, the dismissed members of the judiciary or those considered to be so, may bring an annulment action directly to the Council of State without exhausting the remedy of the commission within sixty days after the publication of the decree law no.685 in the Official Gazzette. On the other side, the cases brought to the administrative courts beforehand will be remitted to the Council of State. Moreover, in accordance with the provisional article 4 of the emergency decree law no.685, the dismissed members of the judiciary who did not apply for the annulment in administrative courts or the Council of State, are granted a supplement period of 60 days for bringing an annulment action to the Council of State.
3- Is the Commission established under the emergency decree law no.685 an effective domestic remedy?
It has been 6 months since the public officials were dismissed and the institutions were shut down based on the authorization granted by the emergency decree laws. Furthermore, despite it has been 1 month since the emergency decree law no.685 entered into force, the members of the commission haven’t been appointed yet. Considering the regulation that the date in which the applications can be submitted to the commission, shall be declared by the Prime Ministry in 6 months following the publication of this article, under the best optimistic guess, even the applications can be submitted to the commission immediately, the persons who were dismissed under firstly issued emergency decree laws will have become applied to the commission 1 year after the dismissals.
On the other hand, having regard the issues that the commission will perform during 2 years; only one commission has been established across Turkey; the commission consists of seven members; almost a hundred thousand dismissed persons and that amount of closed institutions, totaly in excess of two hundred thousand applications, will apply to the commission, it can be easily understood that the commission will not be able to conclude all of the applications in only 2 years. Even the commission concludes the applications in a timely manner, namely in 2 years, considering the disposition time is 3 years for the judicial review including that of the cassation appeal to the Supreme Court and lastly, adding the disposition time for the Constitutional review which is also nearly 3 years, the total disposition time of exhausting the domestic remedies will take almost 8 years for the applicants. When adding the disposition time of the applications, lodged with the ECHR, which is nearly 4 to 5 years, the total disposition time for the legal process of the dismissed public officials and the closed institutions will take 12 to 13 years.
Accordingly, considering the following facts;
*The commission hasn’t been established yet,
* According to the provisional article 2 of the emergency decree law no.685, the applicants will be able to apply to the commission at a date which is determined by the Prime Ministry within 6 months after the establishment of the commission,
*In case of the application isn’t replied by the commission within 60 days, the provisions of the article 10 of the Procedure of Administrative Justice Code as to the application is deemed to be dismissed can not be applied and any regulation concerning the disposition time limits for the applications to the commission isn’t provided in the emergency decree law,
* In excess of two hundred thousand applications will be examined by only one commission consisting of only 7 members,
it can be easily understood that the emergency commission is nor an effective remedy neither a commission just like the European Council intended to be established.
In addition, the Chief Public Prosecutors’ Office have launched an investigation into the majority of the dismissed public servants, even public cases have been filed against some of them on charge of having a membership in terrorist organization. These cases will be probably concluded as soon as possible by the judicial bodies which have been taken under the control of the ruling party (after the consent of the constitutional amendment, the judiciary will be completely under the control of the President of the Republic) and also sentence the victims. In this way, this court judgement (sentence of the public servants) will be submitted to the commission as a rightful reason for their dismissal. The ruling part will avail of this case in a way that the validity(!) of the emergency decree law acts which have been performed under the initiative and the disposal of the Government will become confirmed by means of the court judgements.
In summary, assessing the suspension decision of the membership of Turkey in EU, the report of the anti-torture Committee, the Venive Commission report and all the declarations made by the authorities of the ECHR and several international institutions in responce to the implementations of Turkish Government after 15 July coup attempt, ‘the State of Emergency Procedures Investigation Commission’ was established under the emergency decree law no.685 6 months later since the first emergency decree law was issued in order to get rid of the pressure over, particularly, the President of the Republic and the other executives and also to display an image as if they are affiliated to the democracy and the rule of law.
On the light of the above explanations, it is considered to be necessary to ask again the question of “Does the commission really aim to reinstate the dismissed ones in their positions or reopen the closed institutions, namely return everything to the state as it was before (status quo ante) and also compensate the pecuniary and non-pecuniary losses of the persons concerned?” This question can be answered as the following:
Considering the following facts:
-the commission hasn’t been established yet,
– according to the provisional article 2 of the emergency decree law no.685, the applicants will be able to apply to the commission at a date which is determined by the Prime Ministry within 6 months after the establishment of the commission,
– in case of the application isn’t replied by the commission within 60 days, the provisions of the article 10 of the Procedure of Administrative Justice Code concerning the application is deemed to be dismissed can not be applied,
-any regulation concerning the disposition time limits for the applications to the commission isn’t provided in the emergency decree law,
– in excess of two hundred thousand application will be examined by only one commission consisting of only 7 members,
it can be easily understood that the emergency commission is definetely not an effective remedy. So, the answer of the above question will be definitely “no”.
It is obvious that the only aim of the commission is to save a time keeping the applicants busy in lodging their applications with the ECHR. Under such circumstances, the ECHR should render a violation decision which guides Turkish Government how to settle these disputes. This violation decision should be a pilot decision that explains in detail what should be done to render the domestic remedy, which will be established, complied with the fundemental principles of the law, stated in Venice Commission report. The possibility that the Court might choose to wait for the conclusion of the process of both commission review and administrative action in order to make a decision about the applications will cause both destructive outcomes that undermine all of the human rights protection mechanism and also the damages of a hundred thousand persons whose compensation will be impossible.