Access to Justice in Turkey? A Review of the State of Emergency Inquiry Commission
/A Report from the Turkey Litigation Support Project
Securing access to justice in Turkey remains a big challenge, especially for those whose rights were violated during the State of Emergency declared in July 2016. During the State of Emergency, the Government adopted a number of “atypical” emergency measures under more than 30 executive decrees seriously limiting and, in some cases, totally waiving numerous fundamental rights and freedoms by relying on exceptional powers under the Constitution. One hundred thousand public sector workers were dismissed and legal entities including newspapers, television companies, associations and foundations were closed down without individualized reasoning or evidence to support these actions. For a long time, the lack of a clear avenue for appeal of these decisions left those affected in obscurity. Following the adoption of the Decree Law No. 685, establishing the State of Emergency Inquiry Commission (“the Commission”), tens of thousands of people who were dismissed and the entities closed under the emergency decree laws have been forced to apply to the Commission before having recourse to a judicial remedy.
A year after the operation of the Commission, the Turkey Human Rights Litigation Support Project (TLSP), started to carry out a research study to assess whether the Commission offered an effective remedy to challenge measures adopted during the state of emergency or whether it stood as yet another obstacle for victims to overcome in order to access justice in Turkey. During the study our researcher and the TLSP team reviewed the decisions and reasoning adopted by the Commission in 193 applications as well as national legislation, reports and statistics. The project collected qualitative and quantitative data supported by interviews with lawyers, applicants and experts and prepared an evaluation report by analysing this data. In this report, the Commission’s structure and functioning is evaluated by taking into account the main human rights issues with regards access to justice. Moreover, the decisions of the Commission are examined to determine whether it constitutes an effective legal remedy, in theory and in practice, in the light of the standards of the right to an effective remedy under international law.
In the light of this data, the study on the State of Emergency Inquiry Commission reached the following conclusions: The Commission which was established as an ad hoc remedy does not have structural and practical safeguards ensuring its independence and impartiality and fails in capacity to provide a fair and effective process in the review of emergency measures. Applicants are forced to prove that they have no links with any proscribed groups or organisations without any prior knowledge about accusations or evidence against them. The situation is exacerbated by the lack of transparency and denial of meaningful participation in proceedings before the Commission. In the assessment of a person’s alleged link with a proscribed group, the Commission uses a very low evidential threshold, criminalizing everyday life practices without requiring proof of any disciplinary or criminal wrongdoing. Among others, the Commission mainly relies on intelligence information, confidential witness statements or unverifiable information obtained from so-called “social circles” without any possibility given to the applicants to challenge them. Finally, having rejected the vast majority of the applications in the proceedings short of fundamental due process guarantees, and with many more applications still pending before it, the Commission has demonstrably failed to meet with the standards of the right to an effective remedy under international law.
A Turkish translation of the report will be published soon. The report in English can be downloaded here and an executive summary in Turkish is available here.
