Since the declaration of the state of emergency in the wake of the controversial coup attempt witnessed in Turkey on 15th of July 2016 employing the decree law has become the main instrument of AKP government in post-coup purges. Through relentlessly using this instrument, tens of thousands of public officers were dismissed, and many media organs and foundations were shut down as a result of issuance of new decrees. Therefore, those helpless people lodged complaints related to human rights violations with the European Court of Human Rights (ECtHR). However, ECtHR, which was seriously hesitant to be involved in a situation against AKP government and was reluctant to deal with a new burden of cases from thousands of Turkish victims, preferred exerting pressure via the Council of Europe on Turkey to create a new (ad hoc) remedy for those people adversely impacted by decrees of the state of emergency. Subsequently AKP government formed the State of Emergency Inquiry Commission by issuing another emergency decree. In this regard, the Commission has begun to work as of 18 September 2017 and then to notify its decisions to some applicants. Nevertheless, it has appeared that the functioning and handling procedure of the Commission and its jurisdiction are far from complying with basic requirements of an effective remedy.
Because of the emergency decrees, purged public officers suffered from deprivation of many rights like right to defense and access to effective remedies, property rights, education rights, right to equal treatment and right to family and private life. So, they will have a legal opportunity to claim those rights before ECtHR at the end. On the other hand, the only competence of the Commission is to decide on whether the related person should be reinstated to his/her last position. It has no say about the rest of the violations caused by decrees. So, the Commission does not have necessary power to provide victims sufficient restitution in terms of legal and financial claims.
As is known, most of the purged public officers do not know the specific reasons of their dismissal from civil service. So, they could make a general application to the Commission without having detailed data on dismissal reasons and a proper defence position. During the reviewing process, the Commission has compiled all relevant information and allegations about/against the applicants from various public institutions, but those details have not been communicated to the applicants. In other words, the Commission has not been employing an adversarial procedure. Thus applicants, who will be able to learn the allegations against themselves after the notification of the Commission’s decision, are not given a chance to rebut the accusations of the AKP government in this phase. Therefore, such conduct of the Commission is in contradiction with the constitutional principle that every public officer has the right to defend themselves in any disciplinary or punitive processes. Consequently, the handling method of the Commission has a fundamental deficiency resulting in a noncompliance with the equality of arms principle.
Another weak feature of the Commission’s functioning is the lack of substantiation in its decisions. In other words, allegations and material grounds mentioned in its decisions are not explained in a sufficiently concrete and evidential fashion. For example, while the applicant is accused of being a user of an infamous messaging application, certain details such as the frequency of using this app, contents of messages and proofs of being user are not stated in the decision. Or although it is stated in the decision that superiors of the applicant consider him/her connected with a terrorist organisation, how this connection was realised and established is not substantiated by the Commission. These weaknesses preclude argumentations about the value and feasibility of the evidences. So, this dogmatic understanding in the decisions of the Commission significantly obscures the effectiveness of the remedy.
It is a reality that most of the soldiers, police officers, judges, teachers and other officers, who were arbitrarily purged as a result of blacklists prepared beforehand, has nothing to do with the planning or execution of the coup attempt. Therefore, dismissals merely depending on connection with or affiliation to an alleged terror organization can only be described as a witch hunt. In this regard, unless any complicity to the coup attempt or disloyalty to the Turkish nation/state is proved, those dismissed persons are just victims of this witch hunt. So, unless the Commission scrutinizes the applications and identifies the misconduct or disqualification of purged officers in its reviews, it is impossible to say that the Commission exercises sufficient due diligence in its duty. Otherwise crediting the assumption that membership, connection to or relation with an alleged terror group is solely enough reason for dismissals constitutes an example of merciless collective punishment which is unfair, irrational and unrighteous.
Another issue about the Commission is whether it will be able to investigate all complaints in a reasonable time period. According to the last statement made by the Commission following the preparatory phase on 13 April 2018, the Commission, which has started to examine the applications as of 22 December 2017, has delivered a decision for 10.010 out of 108660 complaints (In addition, it made 1200 nonfunctional preliminary decisions for persons reinstated to the office with emergency decrees). This figure means that if the Commission keeps its current speed for the rest of the cases, it will need about 145 weeks to complete its mission. If new emergency decrees dismiss more public officers in the upcoming days, this calculation will negatively change. In comparison with the speed of AKP government dismissing more than 60.000 public officers in two months following the coup attempt, the speed of the Commission is manifestly unsatisfactory.
Lastly, reinstatement percentage in the decisions of the Commission should be focused on as well. With regard to the last statement by the Commission, out of 10.010 application examined by the Commission only 310 applicants have been reinstated to the civil service. This figure corresponds to approximately 3.1 percent of all completed works. However, this lowest rate is under no circumstances compatible with the reality on criminal records of almost all purged officers who has nothing to do with the coup attempt, any violent acts or any detrimental initiatives against Turkish nation. Therefore, it is clear that the Commission not only causes a big disillusionment but also reveals its absolute loyalty to AKP government.
Since the beginning of the decree law era of Turkey, victims of purge waves and their families have experienced several hardships, in the face of which Turkish authorities and ECtHR have turned a blind eye. Tens of purge victims committed suicides including the recent one by a soldier at the rank of captain. Most of them have been excluded from the society, denied from certain public services, failed in finding a job due to the presence their name in a decree, deprived of the access to an independent and efficient domestic court, and left to a situation equal to the degree of the civil death. However, ECtHR, in its notorious Köksal judgment, found the complaints of the purged applicants inadmissible and referred them to resort to a post facto established local remedy, the Commission. ECtHR also mentioned in this decision that it will assess the effectivity of the Commission in due course and it has left the burden of proof on the AKP government in this regard. Given the fact that the ineffectivity of the Commission is apparent enough, it is high time for the ECtHR to ascertain this grievous reality before the loss of more lives of victims.
Dr Ugur Tok is the Director of Platform for Peace and Justice in Brussels, http://www.platformpj.org/
