Turkey declares state of emergency and derogates from ECHR after failed coup d’état
Many human rights treaties contain derogation clauses with regard to emergencies. The following post outlines the constitutional and international legal framework of state of emergency as it pertains Turkey and its derogation from the ECHR.
On the 21 July 2016, six days after the attempted coup d’état, Turkey proclaimed a state of emergency (‘SoE’ or ‘OHAL’ in Turkish) for a period of three months. The same day, the SoE decision was communicated to the Council of Europe, along with a notice of derogation from the European Convention on Human Rights (ECHR). This blog contains a sketch of the domestic and international legal framework of the SoE as it pertains to Turkey, followed by some additional remarks concerning the current situation.
State of Emergency: Constitutional and Legislative Framework
The rules governing the SoE are set out in Articles 119 to 121 of the Turkish Constitution. Articles 119 and 120 set out the material and formal conditions for the declaration of a state of emergency including its duration and geographical scope. Article 119 relates to emergencies following a natural disaster or a serious economic crisis while Article 120 concerns emergencies resulting from widespread acts of violence or serious public disorder.
The rules governing the state of emergency are established in Article 121 which provides, inter alia, that once a state of emergency has been declared, the Council of Ministers, chaired by the President of the Republic, may issue any decree having force of law necessitated by the state of emergency (Kanun Hükmünde Kararname). This provision is of crucial importance in assessing the impact of state of emergencies in the Turkish legal order since such decrees are often used to restrict fundamental rights and, following Article 148 of the Constitution, are not subject to review by the Constitutional Court with regard either to their form or substance.
In addition, the state of emergency regime is regulated by Act No. 2935 of 25 October 1983 on States of Emergency. The law grants local governors (Vali) extraordinary authority to implement SoE measures, including enabling them to temporarily restrain the exercise of certain rights and liberties.
Notwithstanding the above, the Constitutional provisions on the SoE regime and the SoE Law of 1983 both include a limitation clause requiring that any restriction and suspension of rights or freedoms must be in conformity with the principles of Article 15 of the Constitution, which contains a list of non-derogable rights which apply even during exceptional circumstances:
“Even under the circumstances described in the first paragraph [in times of war, mobilization, martial law, or a state of emergency], the individual's right to life, and the integrity of his body and mind shall be inviolable except where death occurs through acts in compliance with the law of warfare; no-one shall be compelled to reveal his/her religion, conscience, thoughts or opinions or be accused on account of them; offences and penalties shall not be made retroactive, nor shall anyone be held guilty until so proven by a court ruling”.
The first paragraph of the same article also points out that any derogation measure can only be to the ‘extent required by the exigencies of the situation’, so that the principles of necessity and proportionality apply even during emergency regimes, and that measures taken must be in conformity with Turkey’s international obligations. This also implies that the Turkish authorities are required to announce any derogation to the provisions of the ECHR and the ICCPR (to which Turkey is a party).
International Human Rights Instruments and Derogation Clauses with Regard to Emergencies
Both the International Covenant on Civil and Political Rights (ICCPR) and the ECHR include derogation clauses allowing state parties temporarily to adjust their obligations in exceptional circumstances. Article 4 of the ICCPR and Article 15 of the ECHR are based on similar, though not identical principles.
Article 4 (1) of the ICCPR prescribes that, ‘in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin’.
No derogation is permitted from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 under this provision.
The UN Human Rights Committee has adopted two general comments (General Comment 5 and 29) on the interpretation and implementation of Article 4. General Comment No. 29 confirms that measures derogating from the provisions of the Covenant must be of an ‘exceptional and temporary nature’ and, has to be invoked in response to a public emergency which ‘threatens the life of the nation’, and ‘the state party must have officially proclaimed a state of emergency’.
In a similar vein, Article 15 of the ECHR affords contracting states the possibility of derogating from most of their obligations under the Convention ‘in time of war or other public emergency threatening the life of the nation…to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.
Paragraph 2 of the same Article declares those rights from which no derogation is permissible including, Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7.
The Strasbourg Court has clarified the characteristics of the public emergency in Lawless and Greek cases as the following; 1. It must be actual or imminent; 2. Its effects must involve the whole nation; 3. The continuance of the organised life of the community must be threatened; and 4. The crisis or danger must be exceptional, in that the normal measures or restrictions, permitted by the Convention for the maintenance of public safety, health and order, are plainly inadequate.
More recently, in 2009, the Grand Chamber of the Court dealt with Article 15 in A & Others v. United Kingdom adopting a deferential approach to governments’ assertions of public emergency (see the thorough analysis of the jurisprudence on SoEs by Sheeran). The Court stated that:
“By reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle better placed than the international judge to decide both on the presence of such an emergency and on the nature and scope of the derogations necessary to avert it. Accordingly, in this matter a wide margin of appreciation should be left to the national authorities.”
Current State of Affairs in Turkey
The Constitution of Turkey as well as the relevant provisions of the ICCPR and the ECHR require that any derogation measure has to be taken to the ‘extent required by the exigencies of the situation’ implying necessity and proportionality assessments. It could be argued that the SoE was necessary to the extent that the attempted coup was a crisis of an exceptional character. The extreme violence that unfolded throughout the night left almost 300 people dead (most of them civilians) and over 2000 people injured. The parliament building was bombed and the president narrowly missed being abducted by soldiers who raided the hotel he had been staying in. Top military officials were abducted and TV stations were seized. Within hours of the failed coup, however, the authorities had managed to regain control. Not only the government and its allies, but also the opposition parties, as well as civilians and high-level military personnel resisted the coup attempt. By 17 July, both the Government and the Army General Staff had announced that they had full and absolute control throughout the country (source in Turkish), raising questions concerning the declaration of the SoE and concerning the proportionality of the measures undertaken under it.
The current discourse in Turkey has focused on the reintroduction of the death penalty. Main arguments that exclude such a possibility, are covered here, at least legally speaking. What is of concern, then, are those other measures that have and are being introduced under the umbrella of the SoE regime severely limiting individual rights and liberties. State Practice shows that the gravest violations of human rights tend to occur in the context of SoEs and that states may be inclined to use their power of derogation as a smokescreen for repressive government policies.
Amnesty International reports that more than 15,000 people have been detained; 60,000 people have been suspended or removed from their jobs, including judges (among which two Constitutional Court members), prosecutors, teachers and police; over 1,000 schools and educational institutions have been closed; and 131 media outlets and publishing houses have been shut down. Most recently, the Scientific and Research Council of Turkey has suspended all payments of graduate scholarships as a SoE measure (source in Turkish). An Armenian doctor’s fertility clinic has been shut down as a part of the SoE. Although it might be thought to be early days, these examples suggest that even if the necessity for derogation is accepted, the specific measures that followed might prove difficult to justify in the years to come.