Derogating from Fundamental Human Rights under the Turkish State of Emergency
Five days after the coup failed on 15 July 2016 in Turkey, the Turkish government declared a state of emergency from 21 July 2016 for a period of ninety days, pursuant to Article 120 of the Turkish Constitution of 1982. On 19 October 2016, Turkey’s parliament ratified a planned extension of the state of emergency for three more months to crack down on individuals suspected to be followers of the Gulenist Terrorist Organisation, which attempted the coup. Ending on 19 January 2017, the state of emergency was extended for a second time with parliament’s approval,and will come to an end on 19 April unless it is extended again. Turkey has notified the Council of Europe that it “may” derogate from the ECHR.
After the failed coup, the Turkish government started to arrest, imprison and fire anyone who had a connection with the putschists. However, the detention and dismissal of thousands of journalists and academics under the state of emergency gave a different political dimension to the government’s unrestricted counter-measures.
In accordance with Article 4(1) of the 1966 International Covenant on Civil and Political Rights (ICCPR), when an officially proclaimed public emergency threatening a nation arises, the States Parties to the Covenant are allowed to derogate from their obligations to the extent strictly required by the exigencies of the situation, on the condition that their actions are not otherwise internationally unlawful, and do not discriminate between people on the basis of a prohibited ground. Nonetheless, derogation from certain obligations is impossible under Article 4(2) of the ICCPR,including the right to freedom of thought,freedom from arbitrary deprivation of liberty, and freedom from torture and inhuman treatment or punishment.
In the same way, Article 15 of the European Convention on Human Rights (ECHR) affords to the governments of the States parties, in exceptional circumstances, the possibility of derogating, in a temporary, limited and supervised manner, from their obligation to secure certain rights and freedoms under the Convention. However, no derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (§ 1) and, notably, 7(1), which prohibits punishment without crime,can be made under this provision. It seems that the Turkish government’s measures are inconsistent with the spirit of Article 7(1) of ECHR, because opposing or criticising the government’s policies is not a crime.
As of mid-January, about 7,316 academics have been dismissed for criticising the government’s policies, or because they signed the peace declaration criticising the curfews imposed in Turkey’s predominantly Kurdish Southeastern districts in 2015. Notably, there is also opposition to the government’s quest for constitutional amendments that will introduce a presidential system, to be voted on in the referendum on April 2017.
More than 5,000 cases were filed by Turkish nationals against Turkey in the European Court of Human Rights over the post-coup purge of suspected Gulenists. This purge targeted military officers, as well as academics and journalists.
The Turkish President has stated that the state of emergency has the sole purpose of combating terrorism, but the Turkish authorities have adopted an over-broad definition of terrorism, and emergency measures are therefore being used to fight against opposition groups. As a result, thousands of Turkish scholars were arrested during the state of emergency on charges related to supporting the terrorist organisation, including for statements that clearly do not provoke or incite any act of violence. The measures taken under the state of emergency have prepared the ground to suppress the right to freedom of thought and expression.
It is very clear that the Turkish authorities, by defining “criticising the government’s policies” and “clarification of opposing views” as terrorist actions, have moved away from the main objective of the continuing state of emergency in Turkey, which has been determined by the Turkish President as fighting against putschists and returning to normalcy in the country. By contrast, the conduct of the Turkish authorities towards a large segment of society —mainly academics and journalists—represents a restriction of democracy and freedom of expression.