Challenges ahead for Turkey and its citizens
The rule of law and human rights in Turkey are at further risk following the failed coup, says Kristin Hausler.
Even in a declared situation of emergency, a state remains bound to its international human rights obligations when it has not entered a valid derogation from them.
On 15 July 2016, Turkey was the subject of a coup d’état, during which both its parliament and presidential palace were attacked. Although the coup was rather rapidly foiled by the Turkish state, it nevertheless led to the deaths of at least 270 people, including 179 civilians, as well as the wounding of over 2,000 individuals. In a democratic society, any change of government must follow a transparent election process and therefore this attempt at overthrowing an elected government must be firmly condemned. While this does not allow Turkey to adopt measures that disrespect the rule of law or violate its human rights obligations under international law, it does provide for the possibility to derogate from a number of prescribed human rights protections provided certain conditions are met.
The legality of derogation from human rights law
On 20 July, Turkish president Recep Tayyip Erdoğan declared a three-month state of emergency, adopted with Council of Ministers decision no 2016-9064. As the coup amounted to a situation that threatened the life of the Turkish nation, the declaration was legally justifiable, especially as states have a certain amount of discretion in defining what constitutes a state of emergency (although such a determination may be contested in court). Once a state of emergency is declared, the state in question may derogate from a number of its human rights obligations under international law if it clearly notifies what rights it intends to be covered by such derogation. Derogations must be consistent with other international law obligations of the state in question, and respect the prohibition of discrimination and the principle of proportionality. Further, a number of human rights can never be the subject of derogations; they are set out in, for example, article 15(2) of the European Convention on Human Rights (ECHR) and article 4(2) of the UN International Covenant on Civil and Political Rights (ICCPR). Such rights include the right to life, freedom from torture, freedom from retrospective law, and freedom of thought, conscience and religion. International legislation regarding crimes against humanity (such crimes including the persecution of individuals as part of a widespread and systematic practice) will also still apply.
Turkey’s derogations
On 21 July, Turkey notified the Council of Europe and the UN Secretary-General that it may adopt measures that could derogate from a number of provisions contained in both the ECHR (in accordance with article 15) and the ICCPR (in accordance with article 4). Under the ECHR, a state party must provide information about the measures taken and the reasons thereof. While there is no requirement to specify from which right a particular measure may derogate, it must be sufficiently clear to enable other state parties to assess the nature and extent of the derogation. The Turkish government appears so far to have informed the Council of Europe of the emergency measures it has adopted and of the reasons thereof, but it remains to be assessed whether those measures are strictly required by the exigencies of the situation. Under the ICCPR, a state party must inform other state parties of the provisions from which it has derogated. Turkey has thus specified a long list of provisions from which it might derogate during the state of emergency. However, such an extended list of rights may not be deemed as abiding with the principle of proportionality, according to which the measures taken must be strictly required by the situation. Furthermore, although Turkey did not list any of the rights from which article 4(2) of the ICCPR explicitly prohibits derogation, some of those listed may nevertheless be problematic. These include the right to a remedy (article 2(3)), which has been deemed as nonderogable by the UN Human Rights Committee (this was clarified in CCPR General Comment No 29: Article 4: Derogations during a State of Emergency (2001), para 14), and the rights of minorities, derogation from which is likely to violate the prohibition of discrimination (article 2(1)), which is also non-derogable.
It can be seen that even in a declared situation of emergency, a state remains bound to its international human rights obligations when it has not entered a valid derogation from them. The Turkish government’s response to the coup may therefore comprise a number of human rights violations. By the end of July, it had been reported that around 50,000 individuals had been either arrested or suspended from their functions, including members of the military and police, as well as those from the judiciary, the government and the education sector. Various news agencies, TV and radio stations, newspapers and publishers were also forced to shut down. While it is legitimate that Turkey would arrest or suspend those who are alleged to have taken part in the coup, one may question the legal basis for such a widespread and rapid purge, which includes individuals who do not appear to have played an active role in the coup attempt. In accordance with ECHR article 5 (right to liberty and security), arrests must be lawful and fulfil one of the criteria listed, such as the existence of reasonable suspicion that the individual in question has committed an offence.
In addition, those who are arrested should be informed promptly of the reasons for their arrest and of any charge against them, and be brought before a judge (or a judicial officer) within a period of 48 hours, in accordance with article 19 of the Constitution of the Republic of Turkey. This states that no one can be deprived of his or her liberty without the decision of a judge after the expiry of the specified period. Despite this rule being enshrined in Turkish law, it has not always been implemented in practice. In April 2015, it was reported that 29 police officers (including Nazmi Ardıç, who had earlier announced his bid for a seat in parliament) were detained for eight days without being brought before a judge. In Aksoy v Turkey App No 21987/93, 18 December 1996, the European Court of Human Rights (ECtHR) decided that a period of 14 days without judicial supervision was in contravention of the ECHR, even if there was a declared state of emergency in Turkey at the time. Furthermore, in accordance with ECHR article 6(1), everyone is entitled to a fair and independent trial within a ‘reasonable time’. However, in Turkey, there have been reports of lengthy pre-trial detention without sufficient reasons. For example, in 2014, the ECtHR decided that the pre-trial detention for over a year of journalists Nedim Şener and Ahmet Şık, accused of aiding and abetting an alleged criminal organisation, violated the right to liberty and security, the right to have the lawfulness of detention decided speedily and the right to freedom of expression (Şener v Turkey App No 38270/11, 8 July 2014 and Şık v Turkey App No 53413/11, 8 July 2014; see also ‘European court slams Turkey on pre-trial detention of journalists’, International Federation of Journalists news item, 8 July 2014).
Capital punishment
With regard to sanctions, following the coup, it was also reported that Erdoğan was considering reinstating the death penalty if that would reflect the wish of the population. No prisoners have been executed in Turkey since 1984 and the death penalty was eventually officially abolished there in 2004 through an amendment to article 38 of its constitution, the validity of which was upheld by the Turkish Constitutional Court on 27 December 2002. Turkey has also ratified ECHR Protocol No 6 concerning the abolition of the death penalty. Therefore, in order to reinstate capital punishment, there would need to be a constitution change, with any reform requiring a referendum called by a ‘supermajority’ of parliament members (which the ruling AKP party does not currently hold), as well as a denouncement of Protocol No 6. These conditions make the reinstatement of the death penalty somewhat unlikely.
Human rights and the rule of law in Turkey
The reaction of the Turkish government to the failed coup should also be considered in light of its actions over recent years. A report on the rule of law and human rights in Turkey (Human rights and the rule of law in Turkey: a scoping report), published by the British Institute of International and Comparative Law in December 2015, highlighted a number of amendments to its legislation that could be seen as improvements with regard to the strengthening of the implementation of human rights protections (see, for example, pages 8–9). However, the report also noted that recently adopted security regulations, such as the Anti-Terror Law, the new Turkish Penal Code and the Law on the Powers and Duties of the Police, jeopardised the realisation of a number of human rights. For example, the Anti-Terror Law and the Penal Code have both been used to prosecute journalists, writers, editors, publishers, translators, civil and/or political rights activists, lawyers, elected officials and students exercising their right to freedom of expression. Meanwhile, the Law on the Powers and Duties of the Police appears to extend excessively police powers with regard to the detention of demonstrators, the conduct of warrantless searches, and the use of force during violent protests, thus putting at risk the realisation of the human right to freedom of assembly and association.
With regard to the rule of law, judicial independence had already been threatened in Turkey before the arrests of judges and prosecutors that took place over the summer. In a submission to the 2015 Universal Periodic Review before the UN Human Rights Council, it was suggested that the government sought to curb the independence of the judiciary, and thus weaken the rule of law, in order to hamper corruption investigations (Turkey: heightened repression by the authorities – a serious setback for human rights – expanded Amnesty International submission to the UN Universal Periodic Review, January 2015,
It is now for Turkey to prove that the failed coup will not weaken the rule of law or curtail human rights further.
Amnesty International, June 2014, page 6). An inquiry into corruption and bribery initiated at the end of 2013 led to more than 1,000 judges and public prosecutors being removed from their positions. In 2010, constitutional amendments addressed some of the concerns regarding judicial independence by attempting to make the judicial appointment process more representative, independent and democratic. However, these changes also allowed the president to play a direct role in the appointment of members of the High Council of Judges and Prosecutors (HSYK), an independent board that makes judiciary appointments and supervises judges, and is thus key to ensuring judicial independence. Out of 22 members of the High Council of Judges, four are now directly appointed by the president, although there have been calls for these appointments to be made through parliament.
The failed coup and the immediate future
While the widespread purge of a number of individuals from their functions following the failed coup raises a number of new worries regarding due process, it is clear that the rule of law and human rights were already vulnerable in Turkey before the coup. It is now for Turkey to prove that the failed coup will not weaken the rule of law or curtail human rights further. In particular, those who have been demoted from their functions for their alleged connection with any group determined by Turkey’s National Security Council to perform activities against national state security must be given access to an independent decision body to contest their dismissal, and those who have been detained without reasonable suspicion of their having taken a part in the coup must be freed. With regard to all those about whom there is a reasonable suspicion of them having committed an offence, they must be tried by a fair and independent judicial body within a reasonable time.

About the author(s)

Description: Kristin Hausler
Kristin Hausler is Dorset Senior Research Fellow in Public International Law at the British Institute of International and Comparative Law.