A report by the Turkey Human Rights Litigation
Support Project (TLSP) provides fresh evidence that the Commission formed in
2017 to examine the mass dismissals of public servants and liquidation of media
outlets and other organisations functions arbitrarily and without transparency.
Together with concerns about judicial review by administrative courts and the Constitutional
Court, the report casts serious doubt on whether victims of abuses committed under
emergency laws have access to an effective domestic remedy – a finding with
implications for the European Court of Human Rights (ECtHR) as it considers the
long queue of Turkish applications
A desolate landscape
The human rights landscape during the state of
emergency following the July 2016 coup attempt was described by Amnesty International as “desolate”. More than
130,000 public sector employees, including judges, prosecutors, teachers,
doctors, police officers and academics, were subject to collective, arbitrary dismissal due to unsubstantiated links
to organisations considered to be “terrorist”. Concerns abound about the erosion of judicial
independence and the “unwarranted and
abusive targeting of lawyers for prosecution”. Numerous media outlets,
civil society organisations, professional associations, educational and health
institutions and trade unions have been closed. Turkey remains “the world leader in jailing
The state of emergency lapsed in July 2018 but was hurriedly
replaced by new counter-terrorism legislation, effectively normalising emergency rule.
Chaos in the courts
For months, individuals who were sacked or entities
that were liquidated had no clear route of appeal. Thousands of applications to
administrative courts, the Council of State (since January 2017, the first
instance court for dismissed judges and prosecutors) and the Constitutional
Court were rejected after these bodies declared they had no competence to
review emergency decrees.
Some 70,000 people applied directly to the Constitutional
Court, only to be told that they should first have exhausted other remedies. Others
applied straight to the ECtHR, including around 30,000 sacked public servants
and 2,000 applicants complaining of arbitrary detention, but had their cases declared inadmissible, mostly because they had
not exhausted domestic remedies.
The fact that members of the Constitutional Court had
themselves been dismissed and detained did not mean, the ECtHR argued, that the
available avenues of redress were necessarily doomed to fail (see, for example,
the Court’s inadmissibility decisions in Mercan, Zihni and Çatal). The vast majority of applications against Turkey continue to be found inadmissible.
Responding to these circumstances, the Secretary
General of the Council of Europe made a proposal, endorsed by the Venice Commission (paras 220-23) and the Parliamentary Assembly of the Council
of Europe (para 17), for the creation of an ad
hoc administrative body to examine individual cases. Such a body, the
Venice Commission insisted, should be independent and impartial. It should
“respect the basic principles of due process, examine specific evidence and
issue reasoned decisions” and be given sufficient powers to restore the status quo ante and/or provide adequate
compensation. Further, the law should provide for judicial review of its
The State of Emergency Inquiry Commission, established
in January 2017, began receiving applications in July 2017. A month earlier,
the ECtHR had found the application of a sacked teacher, Gökhan Köksal, inadmissible since he had failed to
exhaust domestic remedies, including the not-yet-functioning Commission, which
was deemed to constitute an accessible remedy “in principle” in the absence of
evidence to the contrary.
Chorus of concern
Such evidence is now mounting. The TLSP report amplifies
alarm about the composition and functioning of the Commission expressed by the Venice Commission (paras 86-90), the Parliamentary Assembly (para 92), the former Council
of Europe Commissioner for Human Rights (p. 20), the Office of the UN High Commissioner
for Human Rights (paras 101-108), the International Commission of Jurists, the UN Special Rapporteurs
on Freedom of Expression (para 30) and Torture (para 84) and the European Commission (p. 4).
These bodies question whether the Commission meets the
guarantees of independence and impartiality required by the right to a fair
hearing under Article 6 of the Convention. Five of its seven members are
appointed by the President (before July 2018, the Prime Minister), the Minister
of Justice and the Minister of the Interior – the very officials ultimately responsible
for thousands of dismissals. Moreover, Commission members may be sacked for the
same ill-defined crimes against “state security” or “constitutional order” as
the applicants whose cases they examine.
Where the TLSP report is revelatory, however, is in
its examination of 193 decisions and 71 pending applications to the Commission relating
to the dismissal of public servants from some 40 institutions (supplemented by
interviews with some 60 lawyers). In total, 139 (72 per cent) of the
applications examined were rejected, while 54 (28 per cent) were upheld. The
success rate for this (unavoidably unrepresentative) sample is, in fact, higher
than average: by 25 October 2019, the Commission had delivered decisions
in 92,000 cases, of which 83,900 – more than 90 per cent – were rejected.
its latest announcement, the Commission states that: “As an effective remedy,
the Commission delivers individualized and reasoned decisions as a result of
speedy and extensive examination.” The TLSP report refutes every aspect of this
Individualised and reasoned?
Comparison between applicants’ statements and the decisions
reveals that the Commission’s approach is far from individualised or fully
reasoned. On the contrary, it is applicants themselves must prove that they
have no links with proscribed organisations, without any prior knowledge about
the accusations or evidence against them, and with no possibility of holding an
oral hearing or obtaining information held by the Commission. The report notes
that many applicants “resorted to blindly expressing their personal opinions”
in an effort to refute the allegations against them (p. 20). Legal uncertainty
is compounded by the failure to define terms such as “association” or
“connection” with organisations regarded as “terrorist”, and the imprecise nature
of the “loyalty” obligation demanded of public officials.
Evidence provided by applicants is omitted from
decisions and boiled down to a single, “copy and paste” sentence. The
Commission’s wording is remarkably – and suspiciously – uniform across
decisions, regardless of the applicants’ professional or personal
The Commission appears to regard some everyday activities
as automatically incriminating. For example, 66 of the 193 applications were
rejected because of the applicants’ suspected use of ByLock, a freely
downloadable encrypted messaging application allegedly used by the Gülenist
network. Again, the decisions use identical wording, neglecting to analyse how
often and for what purpose each applicant had purportedly used the application.
Likewise, in 67 of the decisions, holding an account
in Bank Asya – a legal entity until its seizure by the state in May 2015 – was considered
grounds for rejection due to its alleged links with Gülenists. One such
unfortunate applicant held the equivalent of just 33 euros in their account.
More than 40 of the applications examined were rejected by
the Commission partly on the basis of membership of certain trade unions,
associations, universities or other entities, or employment in certain
companies, closed by emergency decree – even if the applicant had joined when
it was legal to do so. Payments made to liquidated institutions are regarded as
automatically suspect – even educational fees paid to a school were deemed to
be “financial support to a legal entity supporting a terrorist organisation”
(p. 31). A similar fate awaited applicants who had donated to an international
aid charity, or subscribed to a particular newspaper, even though both had
previously been feted by President Erdoğan himself.
Rejections were also made on the
basis of secret witness statements, ill-defined disciplinary procedures and information from unidentified
“social circles” or “intelligence sources”. One
informer known as Albatross reportedly testified against 6,000 people (p. 35). The
Commission’s acceptance of such unverified accusations at face value, the
report ventures, flouts the principle of the presumption of innocence.
The Commission is not required to decide applications
within a certain timeframe. As
of October 2019, more than 34,000 applications were unresolved.
Nor can speedy resolution be expected before the
administrative courts, as indicated by newly-introduced “targeted processing
times” issued by the Ministry of Justice. A report in July 2019 noted that a
sacked public servant whose claim was dismissed by the Commission was given a
targeted processing time for his case before the administrative court of 955
days. For its part, the Constitutional Court had a backlog of almost
40,000 cases at the end of 2018, around a quarter of which had been pending for
between one and five years. Such figures lead to the TLSP’s gloomy estimate
that applicants rejected by the Commission who appeal all the way to the
Constitutional Court can expect to wait a decade for a resolution of their case.
Even applicants who succeed before the Commission may
ultimately be frustrated. Restrictions apply to the re-appointment of members
of the army and security forces, diplomats and academics; for example, academics
cannot be re-appointed to their previous institution and may be assigned to one
far away. This raises questions as to whether the Commission can be regarded as
an effective remedy since it lacks the power to undo the violation or its effects
(the principle of restitutio in integrum).
If the Commission is neither an independent nor
effective remedy, does judicial review of its decisions ensure that the system
as a whole is fair? The signs are discouraging.
A few administrative courts in Ankara are responsible
for reviewing the Commission’s decisions (initially four, later increased to
seven). These courts were designated by the High Council of Judges and
Prosecutors, which is presided over by the Minister of Justice and has four
members appointed by the President. As the International Commission of Jurists argues (p. 33), this
degree of executive influence taints the very courts entrusted with reviewing
Commission’s decisions and undermines their independence and impartiality.
Moreover, the administrative courts are not competent
to review the lawfulness of the initial decisions taken under emergency decree,
but only to formally review the lawfulness of the Commission’s decisions. No
judicial review is possible of issues outside the Commission’s remit, such as
the cancellation of passports.
Frustrated applicants may appeal to the Constitutional
Court. Yet here, too, there is alarm about whether this avenue constitutes an
In March 2018, the ECtHR itself expressed such concern
in cases concerning pre-trial detention, following the extraordinary refusal by
lower courts to release two journalists, Mehmet Hasan Altan and Şahin Alpay, even though the Constitutional Court
found they had been detained unconstitutionally (see here (para 142) and here (para 121); discussed here and here). Disturbed by this judicial insurrection, the ECtHR noted
that it would be for the Turkish government to prove that the Constitutional
Court provided an effective remedy, both in theory and in practice.
Notably, the Human Rights Committee, in a March 2019
decision concerning arbitrary arrest and detention, concluded
(para 8.5) that the Constitutional Court is not
an effective remedy in such cases. Among other concerns, the government had
the applicants’ claims that its proceedings would be unduly prolonged. The Council
of Europe Commissioner for Human Rights had reached the same conclusion in her third party intervention (paras 39-43) in December
2018 in a case concerning the detention of the civil society activist, Mehmet
While the Constitutional Court has (sometimes
narrowly) found violations in cases in which anti-terrorism laws have been used
to stifle dissent (see here, here and here), in others it has
dismissed cases that later succeeded in Strasbourg, notably those concerning
the pre-trial detention of a former Constitutional Court judge, Alparslan
Altan, and the Kurdish opposition MP Selahattin Demirtaş
(the latter is currently pending before the Grand Chamber).
Any hope that the ECtHR’s judgments in the cases of Mehmet Hasan Altan and Şahin Alpay signalled a change of direction
was dashed by decisions in February 2019 to declare inadmissible cases related to events
during curfews in south-eastern Turkey, since the applicants had not shown that
individual application to the Constitutional Court was ineffective or
The matter is bound to return to Strasbourg. In several
cases communicated to Ankara, the Court asks whether individual application to the
Constitutional Court can be considered an effective remedy having regard, inter alia, to the length of
proceedings. One case pending before the Constitutional Court for two years relates
to the blocking of Wikipedia (see also here and here).
Writing in March 2018, the former Deputy Registrar of the ECtHR, Michael O’Boyle, argued that Court had not “shut its doors irrevocably” to Turkish applicants. The question was not whether Strasbourg could offer an effective remedy, but when, and under what circumstances. The evidence adduced by the TLSP as to the opaque and arbitrary functioning of the State of Emergency Inquiry Commission, and alarm about the inadequacy of judicial review, suggest that the subsidiarity principle has now been stretched to breaking point. The time is fast approaching when Strasbourg will have to open its doors wider. The alternative is for purged public servants, liquidated organisations and those arbitrarily detained to be left languishing in a situation of virtual lawlessness, with all that entails for shattered lives and fractured institutions.
Thanks are due to Ayse Bingöl Demir of the Turkey Human Rights Litigation Support Project for assistance in the writing of this post.