IHD's VIEWS REGARDING LAW NO. 7145 REGULATING PERMANENT STATE OF EMERGENCY

As is known, the State of Emergency (SoE) that has been in effect in Turkey since July 21, 2016 has not been extended and lifted on July 18, 2018. Nevertheless, the political power has adopted Law No. 7145 on the Amendment of Some Laws and Emergency Decrees that would render the SoE permanent on July 25, 2018 at the Grand National Assembly of Turkey (GNAT). This law has gone into effect on July 31, 2018 following the President’s ratification. There are significant reasons why we have referred to this Law as the “permanent SoE law.” We can list these reasons as such: 32 SoE Emergency Decrees have been issued during the SoE. Thousands of amendments were introduced to hundreds of law articles through these decrees. All these amendments are virtually permanent ones. In other words, these are changes that will continue to be in effect even after the lifting of the SoE. The government would not be able to engage in a practice regarding only the period of detention, mandate of governors, and dismissals from public office when the SoE was lifted. Therefore, the SoE has been rendered permanent in Turkey by way of Law No. 7145 that regulates this situation, which they regarded as a loophole in their own opinion, alongside with other issues mentioned below. Article 13 of the Constitution of Turkey designates that fundamental rights and freedoms may be restricted, without infringing upon their essence, provided that these restrictions shall not contradict the letter and spirit of the Constitution and the requirements of the democratic order of the society, the secular republic, and the principle of proportionality. Moreover, Article 15 of the Constitution provides “In times of war, mobilization, martial law, or a state of emergency, the exercise of fundamental rights and freedoms may be partially or entirely suspended; however, even under these circumstances an individual’s right to life, the integrity of his/her corporeal and spiritual existence shall be inviolable; no one shall be compelled to reveal his/her religion, conscience, thought or opinion, nor be accused on account of them; offenses and penalties shall not be made retroactive; nor shall anyone be held guilty until so proven by a court ruling.” By way of Law No. 7145, however, the following has been enacted:

1. Not only governors have been extended the power to prohibit the entry and exit of specific persons into and from specific places in a city for 15 days, they have also been given the authority to declare curfews and ban vehicles to go out in traffic without a time limit at certain places and times. This merely signifies the authority to declare a curfew on one’s own. This authority has been defined specifically, not generally as is the case in the Law for Provincial Administration. It is without doubt that personal liberty and security enshrined by Article 19 of the Constitution and the right to freedom of residence and movement enshrined by Article 23 of the Constitution will be violated through the use of this power even if the conditions set forth in the Law existed. Alongside with these rights, many related rights will also be violated accordingly through the use of this power.

2. Procedures and practices that will give way to the violation of Article 34 of the Constitution, which designates the right to assembly and demonstration, has been paved for by granting governors such new powers as restriction and early dispersal of meetings and demonstration marches.

3. The fact that the period of detention can be extended to a total of 12 days through 4-day extensions by a judge’s ruling has also been regulated. The Constitution has been blatantly violated in this way since the period of detention can only be extended to a maximum of 4 days even for collective offenses upon the request of the public prosecutor and the ruling of the judge as per Article 19 of the Constitution.

Article 19 of the Constitution states that these periods may be extended during a state of emergency, martial law, or in time of war. Therefore, this amendment refers to the fact that the SoE continues de facto. The judges who can extend detention periods are the judges of Criminal Peace Judgeships. It is clear that violations of law will not be eliminated when one takes into account the opinion of the Venice Commission adopted in March 2017 with no. 852/2016 with regards to the Criminal Peace Judgeships.

4. ECtHR’s and Constitutional Court’s rulings have been disregarded through the regulation designating case reviews on file every 30 days up to 90 days in objections to arrest. Thus, the right to personal liberty and security and the right to a fair trial have been violated.

5. Article 134 of the Code of Criminal Procedure (CCP) has been amended to extend authority to law enforcement to seize computer files without a judge’s warrant, which would be requested after the fact. What is implied by “judge” here is the criminal peace judges. We have expressed our views on criminal peace judges above.

6. The law designates that dismissal of persons from public office will continue through commissions to be established at every public institution and organization and by the consent of the related minister. Indeed, the SoE order is being maintained in just the same way as SoE Emergency Decrees by introducing such a concept as persons “having connection with” structures and entities posing a threat to national security and terrorist organizations. It also sets forth that passport invalidations of those who have been and will be dismissed will continue. As for dismissed academics, it has been regulated that they will not be able to return to their former universities even if a decision for reinstatement is passed. These dismissals disregard presumption of innocence enshrined by Article 38 of the Constitution. Thousands of public employees have been dismissed without criminal convictions about them, even social media posts and union activities of some have been offered as grounds for dismissal. The ban on discrimination in Article 10, the right to freedom of movement in Article 23, freedom of thought and opinion in Article 25, freedom of expression and dissemination of thought, the right to work in Article 49, the right to form unions and organizations in Article 51 of the Constitution will continue to be violated through this regulation.

7. The authority to perform preventive search has been extended to the gendarmerie and police officers without a judge’s ruling to that effect in military locations (this term implies military zones and areas declared to be security zones). Yet, Article 20 of the Constitution states that “unless there exists a decision duly given by a judge on one or several of the grounds of national security, public order, prevention of crime, protection of public health and public morals, or protection of the rights and freedoms of others, or unless there exists a written order of an agency authorized by law, in cases where delay is prejudicial, again on the above-mentioned grounds, neither the person, nor the private papers, nor belongings of an individual shall be searched nor shall they be seized. The decision of the competent authority shall be submitted for the approval of the judge having jurisdiction within twenty-four hours.” Practices that will likely to pave the way to violations of privacy of private and family life will be enabled through this regulation that violates the Constitution itself.

All these extended powers and practices are in violation of such supranational human rights documents as the Universal Declaration of Human Rights, UN International Covenant on Civil and Political Rights, UN International Covenant on Economic, Social and Cultural Rights, European Convention on Human Rights, European Social Charter and UN ILO Conventions on work life. The rights covered by these documents are human rights. As per Article 90 § 5 of the Constitution, they are documents on human rights to which Turkey is a party and international agreements duly put into effect have the force of law. In the case of a conflict between international agreements, duly put into effect, concerning fundamental rights and freedoms and the laws due to differences in provisions on the same matter, the provisions of international agreements shall prevail. As we have put forward in various parts of our statement, the regulations within the scope of Law No. 7145 are related to 1) The right to personal liberty and security, 2) Freedom of residence and movement, 3) Presumption of innocence, 4) Right to a fair trial, 5) Principle of equality and the prohibition of discrimination, 6) Freedom of thought and opinion, 7) Freedom of expression, 8) Freedom of organization, 9) Respect for the privacy of private and family life, 10) Academic freedom, 11) Right to work. These regulations enacted within the scope of Law No. 7145 contradict the provisions enshrined in human rights documents. CONCLUSION: What is imposed upon us by way of Law No. 7145 is essentially a condition of “Constitutionlessness” and de facto SoE. The document called the Constitution is a social contract that secures the rights and freedoms of citizens against governments. The fact that this contract is disregarded alongside with the restriction of rights and freedoms and the limitless expansion of the government’s powers can be defined as a condition of “constitutionlessness.” The situation has been rendered as if the SoE has still been in effect without having to resort to declare and extend the SoE, thus, a fraud against the Constitution has been perpetrated. The fact that this bill has been signed into law by the votes of MPs from AKP and MHP at the GNAT despite its blatant unconstitutional pledges unfortunately stands testimony to the fact that Turkey is not even a state of law any more. We think that arguments about state of law are pointless. Furthermore, we believe that if a country passes bills into law that contradict its own Constitution and acts as if these are Constitutional rules, there can be no legal discussions in that country. Besides, amendments to the Constitution that entered into force by the Constitutional Referendum of April 16, 2017, which was declared to be accepted through the unlawful ruling of the Supreme Election Council, and by the June 24, 2018 elections held under SoE conditions have brought about an anti-democratic regime based on a single-man rule. Those provisions regarding fundamental rights and freedoms that could not be changed in this amended Constitution are attempted to be completely abolished through such anti-democratic laws as the Law No. 7145. As human rights defenders, we would like to reiterate that our struggle for human rights and democracy will persevere. Human Rights Association (İnsan Hakları Derneği-İHD)