by IHSAN GUMUS

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Burning heretics with low cost

All the doors are being closed to their faces. This may suit best to describe harsh conditions under which victims of the “state of emergency” are living in Turkey. According to the Turkish Constitution, in case of state of emergency, government is allowed to introduce “decree laws” in order to recover normal conditions. Turkish Constitution also stipulates that decree laws cannot be brought before the courts or be reviewed by the Constitutional Court both in procedural and substantial terms. Therefore Erdogan, from his point of view, is fully right when he sees the coup attempt of 15th July, 2016 as “dei gratia” (grace of God). This attempt whose major perpetrators still remain in darkness was the apparent reason of the state of emergency.

Relying on this blanked cheque, Turkish government, just after the coup attempt, started to dismiss thousands of civil servants through a series of decree laws with a blacklist of those labelled as FETO-linked terrorists.

By the way, FETO, an acronym of “Fethullahist Terrorist Organisation” has been made popular by the government in Turkey. However, the group was recognized by the EU Commission as “Gulen Movement” in Turkey Progress Report of 9th November 2016 while British parliament, in its report dated 25 March 2017 on “The UK’s relations with Turkey”, used the term the Gulenists. By any means, international community did not approach to stigmatize the movement as terrorist.

The numbers of victims are getting higher and higher every day. To make the victimization process easy for civil servants, Turkish government introduced a very practical solution: ready-made blacklists are appended to the standard cabinet decrees and published in the website of the Official Gazette. In this way, within the nine decrees in total, about 140.000 civil servants have been fired so far.

Not only being dismissed but also lifelong banishment from public positions, invalidation of licenses and diplomas proving vocational qualifications, cancellation of passports are put into force without any interrogation, judicial decision and further procedures. Thus, civil servants stigmatized by the decrees became “jobless with no qualification” with hardly very few employers who might still wish to employ such people if any.

Finally, but no less relevant: according to legal framework governing the social security system, when 100 days expired as from the date of dismissal, Social Security Institution will not pay for health services to those people and their family members. Digitalized state operates against them in public sphere from hospitals to notaries. From the government’s point of view, the most impressive way seems to be paved to send those “traitors” to the hell as a warning to others.

Note that the above legislative decrees are just samples. If such goes on, living conditions under the state of emergency will be the “normal” of Turkish citizens. Also, in his public speeches, Erdogan frequently implies that its duration may be further prolonged even with tougher measures: “until rooting out of terror!” Please, in electoral autocracies like that of him, terror is not terminated but produced again and again in different ways. It is therefore very obvious that Erdogan enjoys the state of emergency as long as it serves his long term political agenda.

Controversies in the judicial system

On the 2nd of October 2016, contrary to its previous position, Turkish Constitutional Court (TCC) refused to review the decree laws concerned in terms of constitutionality because they were introduced based on the state of emergency. On the other hand, the Constitution reckons decree laws as “laws” to be adopted by the Parliament (once published they have to be submitted to the approval of the parliament). In its opinion, review of decree laws rests with the Parliament only, and therefore they cannot be considered usual administrative measures and thus remains out of jurisprudence of TCC itself and of the Supreme Administrative Court and local administrative courts.

As for the individual petitions, i.e. the ultimate domestic remedy before ECHR, with reference to the article 45(3) of the Law no.6216 on the Establishment and Judicial Procedures of the Constitutional Court, TCC reckons itself unauthorized to review the individual petitions against the “legislative actions” and “regulatory administrative actions.” That was the case in its 30.11.2015 dated decision concerning the individual petitions of the rapporteurs dismissed by the Law no.6524 on the High Council of Judges and Prosecutors. This implies that the same would be the case for the applications lodged by the victims of decree laws unless some extraordinary change emerges in the political sphere of Turkey.

Evidently, in its judgment of 4 November 2016, the 5th Chamber of the Supreme Administrative Court (in charge of reviewing Cabinet Decrees) decided that compliance of decree laws goes beyond its jurisdiction and should be examined by the first-instance administrative courts. Against this, almost all the local administrative courts started to reject the files without examination even with the same wordings: “decree laws are legislative not administrative and we are not authorized to examine their compliance.” Independent observers may check it: no contrary decision is available yet.

A very lawful entrapment in the full sense of the word! Genius (!) interpretations by the top agents of the judicial branch, creating a vague area out of any legal boundaries, systematically yield nothing to be done for the citizens who are legally killed (remember “civic death”) by the government. Indeed, that must be a joke for them, so there is no court to hear and they are then “miserable” not worthy to a fair trial or access to court. Worse still, they are not worthy to honour with a one-page official notice. Practicality prevails! That is why the government listed their names within the Official Gazette and announced that these people were fired as they are linked with “terrorist organisations” and “entities or groups” which are considered harmful to national security.

That is all! No need to occupy the courts, no need to waste much more papers for them! However, neither the Government nor the National Security Council has disclosed the names of these organisations, entities or groups. No need; be practical, just refer to FETO with a political rhetoric.

Judicial innovation: a non-judicial commission

As a political response to the voices raised by the international community reactions, with the Decree Law no. 685 of 23 January 2017, Turkish government formed “the State of Emergency Inquiry Commission” (the Commission), a non-judicial entity, which would have the task, in particular, of adjudicating upon appeals against measures adopted directly by decree laws issued in the context of the state of emergency, including the dismissals of civil servants. In essence, that was just to waste the victims’ time and to create an appearance of fairness as well as respecting of the measures recommended by the Venice Commission in its opinion no. 865/2016.

Thus, the Commission with its seven members (yes 7 in figures!) will decide on whether thousands of dismissals are right or wrong. That is fine, despite the fact that its members are appointed among senior officials by the Prime Minister, Minister of Interior, and Minister of Justice, namely by the same leading political actors behind the dismissal processes. Then, there is no reason to believe that it will not be independent of providing appropriate redress for the victims’ complaints!

OK, but what about the administrative courts? What shall they do when the Commission took the ground? Or, would the Commission function as a semi-court in parallel to the courts? No, do not worry. Thanks to the provisions of Decree Law no. 690 of 29th April 2017 which is a complimentary to 685, the government actually put an end to this “controversy”: according to Article 56 of the Decree Law, if any citizen lodges an application to examine his/her dismissal, the courts, without making any decision on the matter, are obliged to transfer the file to the Commission directly. Thus, seven supermen will be expected to show a magical work in conclusion of hundreds of thousands of complaints whereas hundreds of judges spend time on holiday. That is to say, courts are disallowed to examine dismissals by the decree laws. No controversy, so no judicial remedy. [N.B. not only dismissals but also the measures listed in the article 2(1) of Decree Law no.685 such as closing down of universities, associations, TV channels etc. will be reviewed upon appeal to the Commission].

Of course, decisions of the Commission remain subject to judicial review. But this jurisdiction is limited only to the decisions taken by the Commission itself and cannot be extended to the actual subject of violation, i.e. decree laws. Worse still, let us say, had you brought its decision before the court, Article 55 of the Decree Law no. 690 stipulates that neither the Commission nor the Prime Ministry can be designated as the “respondent”. Instead, the procedure is addressed automatically to “the last institution in which the applicant worked at the time of dismissal.” Decree Law regulates all judicial matters quite in detail in the tone of “instructions to the judges”.

No surprise, such is not a matter of concern in today’s Turkey, as Erdogan and his ministers frequently declare in abstract that judges are independent in their decisions.

At the Door of the ECHR

Naturally, under these circumstances, victims of the decree laws turn their attention to the ECHR. Since the occurrence of the first dismissals in September of 2016, thousands of appeals have accumulated at the register of ECHR, more than 20.000 as of today. This figure representing mass violations of human rights in Turkey turned a test-case measuring commitment of ECHR to its main principles that have been prevailed so far. Let us have a look how ECHR has dealt with this challenge.

Indeed, it may be easy to review some one-off violation for ECHR or even the Chambers may order the joinder of applications with similar content. But this time, the case seems to be the first in its history: applications concerning human rights violations with highly collective character. Therefore, it might be inevitable for the ECHR to apply “pilot case” procedure to cater for the massive influx of applications concerning similar issues that arise from non-conformity of domestic law (decree laws in case of Turkey) with the Convention. That would be the best way to answer the common interest of Turkish applicants in a timely manner.

Instead, ECHR preferred a third way. It took one of the files and found it “inadmissible”. That was 08.12.2016 dated decision Zihni v. Turkey referring to the principle of “exhaustion of domestic remedies”. We may fully agree with this procedural point of view, so it is the norm, and domestic courts should play their role in the Convention protection system, at least in appearance. The system concerned works with a very basic principle: a constitutional Europe should first be rooted in the member states, e.g. Turkey. That is not only for keeping ECHR away from the challenges but also for setting a platform facilitating fact-oriented analyses in which the judges make a lot of work of the circumstances of the case. Otherwise, ECHR may turn to a first-instance court due to direct flow of applications from all member countries.

As far as individual petitions to TCC are concerned, in principle ECHR deals with the applications which exhausted this final domestic remedy only. Taking into consideration of the fact that TCC had not yet ruled on whether it had jurisdiction to examine those appeals, in Zihni v. Turkey, ECHR kindly made a distinction between “ruling on the constitutionality of a law in the context of a challenge to constitutionality” (1) and “reviewing specific decisions taken in application of the provisions of that particular law” (2). It is still unknown for us whether TCC would show such a kindness.

ECHR is fully correct at that point: when constitutionality is acknowledged by TCC this does not prevent members of the public from lodging an individual appeal before it. But contrary to this, such may prevent TCC from reviewing these appeals for the sake of being “consistent” (if it is still something desirable) as well as the above-mentioned restriction in the article 45(3) of the Law no. 6216.

Zihni v. Turkey decision also revealed that ECHR is well aware of the controversies in Turkish constitutional/legal framework and values the position of TCC concerning thousands of individual petitions which had been lodged against dismissals by decree laws. This implies that the final position of ECHR would be very dependent on the position to be adopted by TCC in these files.

Thanks to Koksal v. Turkey, we found a semi-final position on the matter. In this decision dated 12.06.2017, ECHR dismissed the application for failure to exhaust domestic remedies, finding that Mr. Koksal had to use the remedy provided for under Decree Law no. 685 i.e. “the Commission”. However, Mr. Koksal lodged his application on 4 November 2016, long before the introduction of Decree Law no. 685, 23 January 2017. Relying on the approach adopted in decision Zihni v. Turkey, Mr. Köksal should have only been required to exhaust the following domestic remedies: administrative court, administrative court of appeal and TCC respectively.

From the details of the decision, we understand that ECHR is well aware of this condition. Then, what is the reason leading ECHR to make such an exemption? The Court itself answers: “to test the limits of this new remedy for the victim of an alleged Convention violation”.

To test the limits of the remedy… How should we interpret this novelty in sense of jurisprudence? Both decree laws no. 685 and no. 690 clearly indicate the limits of this new remedy? But ECHR deems necessary to test it anyway! Then, if Mr. Koksal and others agree to be a tester, that will be the first testing initiative in the judicial sector. No joke, ECHR has an image of serious entity.

Erdogan’s Remedy Baptised by ECHR!

Decision also reveals that ECHR, with reference to the opinion of Venice Commission, appreciates the establishment of the Commission and recognizes it as a competent authority although it cheats the roles of the courts in adjudicating upon appeals against dismissals. ECHR also considers that, with this measure, Turkish government put an end “to the controversy about the jurisdiction of the national courts as regards the judicial review of measures taken under legislative decrees issued during a state of emergency and had designated the administrative courts to hear administrative appeals against the commission’s decisions.”

Fully correct! No controversy remained. How does? Let us analyse the quotation.

1. As referred above, national courts are no longer authorized for the judicial review of measures taken under decree laws. Indeed, this provision is fully compliant with the recent decisions of the local administrative courts on the basis of the lack of authorization.

2. Administrative courts are authorised only to hear administrative appeals against the Commission’s decisions. Not against the decree laws of the Cabinet. Thus, government, in a tricky way, achieved to move decree laws out of judicial review.

And ECHR, despite its reference to “a possible re-examination of the question of the effectiveness and reality of the remedy”, appreciates these outcomes of measures taken by the Erdogan regime for the sake of “fairness”. Such a re-examination however can only be possible when Mr. Zihni and Mr. Koksal exhausted all domestic remedies including the Commission unless of course another new remedy is introduced meanwhile.

From the details of Koksal v. Turkey, it could be noticed that Mr. Koksal did not exhaust none of the domestic remedies including individual petition to TCC. However, ECHR, instead of making a general reference to the principle of exhaustion of domestic remedies in its inadmissibility decision, preferred to recognize the Commission set up by the government. This implies that high judges came together just to honour this Commission through application of Mr. Koksal.

Now what shall Mr. Koksal and Mr. Zihni do? They will turn back to the zero point of their dismissal. They will travel over a long distance from the Commission to ECHR, final destination. Anyway, they have enough time to deal with such affairs.

What shall ECHR members do in the meantime? Not earlier than five years, they will be able to test the effectiveness of “this new remedy”. The pending applications will be treated as inadmissible by a single judge in line with the decision Koksal v. Turkey. They will save time to deal with other human rights violations.

What shall Erdogan and his supporters do? They will likely feel free to publish new lists of dismissals and to persecute dissenters. Fortunately, victims have an “accessible remedy” to appeal, the Commission baptised by the ECHR!

Crossing the Red Sea

We hope ECHR is well aware what Turkish victims are in pursuit of not only an immediate recovery of their losses but also a strong message to Erdogan regime in Turkey. Sometimes political figures, media organs and even civil society may choose to remain silent for some reason which is “politically correct”. Under such circumstances, it is the court houses providing an “exposed ground” to walk on for those who escape from persecution.

With reference to a well-known Biblical/Qur’anic narrative, let us make an analogy to picture their stress: they have to cross the Red Sea before being exterminated by the Pharaoh and his army. Yes, judges may not part the Red Sea but, at least, may put a halt to persecutions provoked by pharaohs of today.

Koksal v. Turkey decision revealed that ECHR is not ready to face such a challenge. May be first in the history of ECHR, honour of high judges is at stake. They have unanimously chosen being “practical” as Turkish government is and turned out to be the solution partner of Erdogan regime in extermination of dissenters.