Two years ago, on July 15, Turkey experienced a vicious coup attempt in its rather substantial history of coups. This coup attempt was more similar to the May 27, 1960 coup when compared to September 12, 1980, as the latter was realized within the chain of command. The July 15 coup attempt was perpetrated by a seemingly religious group, a criminal cult with civilian affiliates that had infiltrated not only the Turkish Armed Forces (TAF) but all state institutions makes it unique. During that night, unarmed public and the Parliament were attacked for the first time in Turkish history of coups. This coup, however, was thwarted with the courage of the Turkish people and the determination of the political will. Nevertheless, a challenging process of cleansing state institutions from FETO members and mending the wounds left by the coup attempt had followed.

Re-establishing the public order and incapacitating the putschists were prioritized; without delay, the government began to remove FETO members from state institutions. Following the TAF’s cleansing, FETO-affiliated civil servants in all institutions, especially in the judiciary and the security forces, were removed according to the law, and administrative and legal processes were initiated. However, this was only the beginning. To be able to eliminate this threat efficiently, the Council of Ministers gathered under President Erdogan’s lead announced a three-month state of emergency in all cities of Turkey on July 20.

The state of emergency’s proclamation was preferred because of the extent of the threat and the counter-measures needed to be implemented against it. This coup attempt wasn’t realized only by a limited military junta organized under the TAF – it was perpetrated by a secretive and insidious organization that infiltrated public institutions. Infiltrating the TAF over numerous decades and operating in a clandestine way, the extent and capability of this organization was unclear. Investigations on and operations against this organization show that FETO is yet to be deciphered completely.

During the coup attempt, along with previous events, we have seen the existence of judges, prosecutors, security force members and high-ranking state officials, which unquestioningly obey every whim of FETO leader, Fetullah Gulen. Captured at the “command center” of the coup attempt and later identified as FETO’s TAF imam, Adil Oksuz, was released by judges despite the legal consequences. Similarly, two military prosecutors went to the Akinci Airbase on the day after the coup, destroyed the evidence there and escaped from Turkey.

Along with these, a police officer assassinating Russia’s Ambassador to Turkey, Karlov, indicated the threat FETO posed. It was clear that this organization, which could hurt Turkey’s security and peace with sabotages, assassinations or suicide bombings should be eliminated with a long-term plan. Moreover, the PKK and Daesh were increasing their pressure on the region, terrorist threats were emerging from Syria and Iraq and cross-border operations were taking place during this period. All of these made the state of emergency a necessity.

Turkey’s state of emergency and terror groups

The state of emergency is a mechanism employed when a state faces an adversary or a threat that cannot be eliminated through common and conventional legal measures. The main characteristic of this mechanism is that it increases state authority which, in turn, allows the state to eliminate the threat more easily. State of emergency is implemented and maintained by constitutional institutions in accordance with the respective laws in the constitution. Therefore, it doesn’t mean undemocratic, unlawful and arbitrary usage of power. Constitutional rights, the rule of law and legal supervision of all state institutions are maintained. In addition, state of emergency is a procedure that is included in the constitutions of all democratic states with the rule of law and no state hesitates to implement it when necessary.

According to the 1982 Constitution, Turkey had two emergency administrative procedures: state of emergency and martial law. Martial law was abolished with the constitutional amendment approved in the April 16 referendum. Therefore, the state of emergency is the only emergency administrative procedure. The constitution foresees that the Council of Ministers gathered under the lead of the president may proclaim a state of emergency with the condition of being limited to 6 months at a time. This decision is published in the official gazette and immediately submitted to the Parliament for ratification. The Parliament can alter the length of the state of emergency – upon request of the Council of Ministers, the Parliament could prolong the state of emergency up until four months at a time or could remove it. In this respect, the Parliament has the final say over the state of emergency. In fact, the Parliament prolonged the state of emergency by three months seven times upon requests of the Council of Ministers in the past two years.

Regarding matters of the state of emergency, the Council of Ministers under the leadership of the president may proclaim executive orders without requiring an empowering law ratified by Parliament. Even though it’s claimed that the executive orders proclaimed during the state of emergency bypass the Parliament, executive orders are submitted to the Parliament and it has the authority to alter, decline or approve them. Indeed, the Parliament has approved all state of emergency executive orders after discussions, rendering them eligible for the supervision of the Constitutional Court. Therefore, both the legislative and the judiciary is able to audit these executive orders. Meanwhile, there are three or four decades old executive orders, which are yet to be audited by the Parliament.

The state of emergency targeting  state or society?

It has been expressed that the most prominent characteristic of the state of emergency is the increasing authority on the part of the state. The extent of this authority and how it should be exercised is regulated by the State of Emergency Law No.2935. Despite the authority endowed to the state by the law, it was exercised in a way to not interfere with the everyday life of the people and to facilitate the fight against FETO. After the events during which police officers and the military clashed, the necessary and efficient precautions to have healthy investigations on thousands of suspected military and police officers, civil servants and civilians, to reestablish public order and to reinvigorate the economic life were implemented with the state of emergency.

It should be underscored that the exercise of authority during the state of emergency is supervised by the judiciary. Only the state of emergency executive orders were exempted from legal supervision of the Constitutional Court. However, as this caused apparent issues, the State of Emergency Commission was established and this commission paved the way for legal supervision.

In a region that is mired with civil wars and various terrorist threats, Turkey faced a military coup attempt and thwarted the short-term threat with sacrifices made by the state and its people. However, the past two years have shown that this is actually a long-term threat that needs to be fought with determination. Despite being occasionally criticized, the state of emergency was received rather well by the public. Nevertheless, prior to the June 24 elections, President Erdogan expressed that they would discuss the annulment of the state of emergency after the elections. Following the elections, former Deputy Prime Minister Bekir Bozdag stated that there was a will to remove the state of emergency and that its schedule would be discussed. If the state of emergency which is to end on July 18 isn’t extended again or the Parliament votes against its extension, it will be annulled. Thus, the state of emergency will be possibly annulled on July 18, if there isn’t any drastic change. It could be expressed that the state will continue to fight against terrorism with determination regardless of the statement of emergency.

The upcoming presidential and parliamentary elections in Turkey will be held on June 24 – during the state of emergency. The U.S., UN, and the Council of Europe issued criticisms and warnings to Turkey with regard to this situation. Heather Nauert, the U.S. Department of State Spokesperson, stated upon a question: “During a state of emergency, it would be difficult to hold a completely free, fair and transparent election in a manner that’s consistent with … Turkish law and also Turkey’s international obligations … We have concerns about their ability to hold it during this type of state of emergency.” Following this, the UN also warned Turkey that the elections during a state of emergency will not be reliable. The UN High Commissioner for Human Rights called upon the Turkish government to lift the state of emergency to enable the credibility of the early elections. Meanwhile, the Committee of Ministers of the Council of Europe and the European Parliament Spokesperson referred to Article 15 of the European Convention on Human Rights and pointed out that a state of emergency cannot be implemented based on assumptions or possibilities, but that the danger is required to be present or tangible.

In France, the latest presidential elections were held during a state of emergency since a total of 241 people were killed in Daesh attacks in France from January 2015 to the election date. During the first Daesh attack in the country on November 13, 2015, 130 people were killed, upon which France declared a state of emergency nationwide. Although a state of emergency can last a maximum of 12 days in the country under normal conditions, it was extended on November 20, 2015, one week after the attacks, for three months and again extended for the second time until July 26, 2016. Following another Daesh attack that killed 84 people in Nice on July 14, 2016, it was extended for another six months. So, the state of emergency in France, which was extended four times, was lifted on November 1, 2017 – 719 days after its declaration.

Then, the emergency rule became the “new normal.” With the new security law signed by President Emmanuel Macron, which entered into force on October 30, 2017 and will expire in 2020, four rules that were in effect during the state of emergency passed into law. The new law restrains the ones linked to terror groups from going outside of their residential areas and introduces judicial control to them on a daily basis. Such individuals are also banned from entering certain areas. Besides, as in the emergency rule, the investigating authorities are entitled to search houses according to the new security law.

Some 25 mosques were closed during the state of emergency, and the law also authorizes the relevant bodies to shut down places of worship where extremist ideas are propagated. The law also allows identity checks in border areas or within a 10 km radius of airports and international stations. French Interior Minister Gerard Collomb said during a speech he made at the national parliament, “We are still in a state of war,” adding that the threat level was still “very serious.” Collomb also remarked that around 20.000 people were blacklisted and the officials who are thought to have been radicalized would be discharged.

So, why did Turkey declare a state of emergency? Daesh attacks in the country started back in 2014. Between 2015 and July, 2016, a total of 1864 people, including civilians, police and military officers, were killed in the attacks of Daesh and the PKK terror group. Despite all, Turkey did not declare an emergency rule. On the night of July 15, 2016, however, the Gulenist Terror Group (FETO) and its operatives who infiltrated the state apparatuses of the country attempted to stage a military coup. They held the Chief of General Staff hostage, opened fire on the National Intelligence Unit headquarters, attacked Special Forces, and shelled the Parliament. People took to the streets all across the country to resist, remained on vigil in front of military posts and stood before tanks. 248 people were killed while 2.200 were wounded. Most of the wounded suffered loss of limb. Meanwhile, the PKK’s Syrian offshoot operated as the land force of the U.S., who is an ally of Turkey.

In the Ottoman Code of Civil Law (Mecelle), which was finalized in 1876, there is a rule: “Bad examples do not serve as models.” I recalled the French case in view of this rule. In proportion to the terror attacks in France, the 719-day long emergency state and the normalization of the emergency rule through new laws set a bad example to the world. On the other hand, what Turkey has gone through over the past years, including the threats posed by Daesh, PKK, FETO and various external factors, is incomparable to the incidents in France. In Turkey, the state of emergency was declared on July 16, 2016 on the grounds of Article 120 of the Turkish Constitution. And on April 19, the Turkish Parliament voted to extend it for the sixth time by July 22, 2018.

On July 20, 2016, five days after the July 15 coup attempt, a state of emergency was declared in Turkey and has been further extended by the Parliament every three months since the coup attempt upon the demand of the Cabinet on the grounds of ongoing terror attacks and the state’s fight against the Fetullah Gülen Terror Group (FETO). The state of emergency enables the state to eliminate those threats and risks that could not be overcome under ordinary rules of law. As part of the emergency powers, state authorities are extended and fundamental rights and liberties are restricted compared to the ordinary period. Article 15 of the 1982 Constitution, which regulates restricting fundamental rights in states of emergency was borrowed from Article 15 of the European Convention on Human Rights. Therefore, Turkey’s legislation on state of emergency powers are in line with the standards of democratic states of law.

In a state of emergency, the Cabinet is vested with the authority to issue decree laws according to the final paragraph of Article 121 of the Constitution. Throughout the state of emergency declared following the July 15 coup attempt, a total of 26 decree laws have been issued. Within the scope of the decree laws, the civil servants affiliated with FETO have been dismissed from profession with an aim to purge FETO cliques from the public institutions. Also, the educational institutions, dormitories, healthcare facilities, media organizations, associations and foundations affiliated with or financed by FETO have been shut down.

According to the Constitution, the state of emergency decrees are accessible to all sorts of judicial review; however, Article 148 of the Constitution rules that a lawsuit cannot be filed in the Constitutional Court regarding the state of emergency decrees. The Constitutional Court refused the lawsuit filed by the main opposition Republican People’s Party (CHP) on grounds of this provision. As a result, administrative objection means were clogged for the civil servants discharged and the institutions shut down as part of the decrees while their possibility of resorting to jurisdiction was also removed. With an aim to monitor the actions taken as part of the decree laws and upon the discussions questioning the review of the decisions, it was decided to establish an investigation Commission on the state of emergency decrees on January 23, 2017.

According to the decree law, the Commission consists of seven members elected from judges, prosecutors and public officials by the Prime Minister, Justice Minister, the Supreme Board of Judges and Prosecutors, the Supreme Court of Appeals and the Council of State. Elected among senior bureaucrats, most of whom are judges, the Commission members were finalized on May 16. Selahaddin Menteş, the Deputy Secretary of the Justice Ministry, was elected as the chairman of the Commission.

Given that the number of files required to be examined by the Commission is more than 100,000, a secretariat and a group of assisting personnel were required within the Commission. Over the course of a long period since the decree on the establishment of the Commission was issued, all the preliminary works and preparations were completed. Around 200 personnel including rapporteurs, experts and officials were assigned to the service of the Commission, which is composed of seven members. The Military Court of Cassation office, which was shut down with a constitutional amendment, was allocated for the Commission.

http://thenewturkey.org/fetos-civil-administrators-and-their-trips-abroad-before-the-coup-attempt/

According to the manifest on the decree laws and their subsequently published rules of procedures, the Commission is to operate for two years, which can be extended if required. The application period is sixty days as of July 17, 2017, the date when the Commission started to accept applications, or as of the date when a new proceeding is conducted. The Commission can demand all kinds of data and documents it needs from relevant institutions and issues its decisions based on these files. The Commission decisions are fulfilled by the relevant state offices without any delay. Annulment actions can be filed against the Commission decisions in certain administrative courts in Ankara determined by the Supreme Board of Judges and Prosecutors.

The establishment of the Commission has enabled the filing of both judicial and administrative applications regarding the state of emergency decrees. The main problem with regard to the proceedings conducted within the state of emergency decree laws was the absence of the possibility of objecting to them and that they were not reviewable. With the establishment of the Commission, the means to object to and monitor the proceedings were provided.

Throughout the state of emergency period, some occasional allegations of unjust treatment were made in the context of the fight against FETO and it was further claimed that the proceedings were abused to settle personal or political accounts. Thanks to the Commission, such claims and requests will be examined. Although it is suggested that every institution must monitor the decisions issued within itself instead of a central Commission, which will assure coherent and standardized implementations. In so doing, all the proceedings regarding one particular subject across the country will be examined by one centralized unit and the principles adopted with the Commission decisions will be a precedent for all the other institutions fighting against FETO. In other words, a uniform implementation will be ensured across the country, which will avert arbitrary decisions according to persons or institutions.

The establishment of the Commission also paves the way for judicial review alongside the administrative monitoring. After the Commission issues a decision, a person can file a lawsuit to an administrative court or the Council of State to object to the decision. Following the administrative procedures, they can file an individual application to the Constitutional Court and ultimately to the European Court of Human Rights (ECHR). In so doing, a full-scale judicial review can be executed.

The assignment of only one administrative court in Ankara for the subject is criticized in terms of the natural judge principle. However, entitling only one court for the Commission decisions will enable stare decisis. The same court will be able to issue decisions by taking previous decisions in similar situations into account and prevent different implementations. Besides, a similar practice was adopted for the formerly established compensation commissions, which the ECHR did not regard as a breach of convention.

The investigation Commission on the state of emergency decrees is not a court but an administrative body. Therefore, the members of the Commission were appointed by the Prime Ministry, Justice Ministry and judicial institutions. So, the Commission cannot be expected to consist of completely independent and impartial judges. Still, the majority of the appointed members are judges. The objective of the Commission is to swiftly investigate the state of emergency proceedings through administrative mechanisms before they are litigated and to rectify the faults.

Before the Commission began to work, thousands of applications were already filed both in the Constitutional Court and the ECHR. The ECHR rejected the applications filed to itself with a decision issued on June 12, 2017, referring them to the State of Emergency Commission, which is a domestic remedy that must be exhausted before applying to the ECHR. Likewise, the Constitutional Court demanded the petitions it had on the subject to be referred to the Commission and the exhaustion of judicial procedures.

This Commission is not an unprecedented body for Turkey. Previously, two individual commissions were established to swiftly deal with the violations of rights through administrative means, both of which operated successfully for years. The first one was the “Counter-Terrorism Damage Assessment Commission” founded in 2004, while the other one was named “Human Rights Compensation Commission.” Both commissions were established through similar methods and members and recognized as effective domestic remedies by the ECHR.

When all the preparations and similar past experiences regarding the establishment of the Commission are considered, the negative campaign against the Commission through arguing that it deems to fail before it actually gets to work, is not helpful. Turkey’s fight against FETO and the purge of this terror group members from the state offices are vital for the country. The Commission is going to play an important role in ensuring that the fight on terror is carried out in accordance with the law and that the mistakes made during the process are being corrected. At this very initial stage, therefore, the Commission should be given time and support.