Guest article by Ömer ÇAKIRGÖZ, Attorney at Law, Istanbul Bilgi University Human Rights Master Programme Graduate Student, Member of the Management Board of Foundation for Society and Legal Studies (TOHAV).
After a failed coup attempt in Turkey on July 15, 2016, a State of Emergency was put into effect on July 21, 2016 based on Article 120 of Constitution of the Republic of Turkey and Article 15 of ECHR and Article 30 Emergency Decree Laws (KHK). Thousands of public servants were dismissed from their positions without any chance of return, and hundreds of newspapers, magazines, radio and television stations, news agencies, press houses, associations, charity foundations, universities, educational entities and other private entities were closed down by virtue of the Decree Laws.
The grounds for all these dismissals and all organisations closed down was stated to be “membership, belonging, links, or connections to terrorist organisations.”They were dismissed by having their names and personal details published in the in T.C. Resmi Gazete, the Official Gazette of the Republic of Turkey.
This paper examines broadcast media, newspapers and magazines, private entities and people who were dismissed from their positions because of Emergency Decree Laws during the state of emergency. This article aims to discuss, in the context of Article 8 of European Convention on Human Rights, the non-compliance of the decision that the Köksal v. Turkey case was inadmissible at European Court of Human Rights. It was ruled inadmissible on grounds that domestic remedies had not been exhausted regarding the recently-established Commission of Inquiry for State of Emergency Practices.
After establishing an opportunity for applications in respect to the closing down and dismissals, the ECtHR considered, upon establishment of Commission of Inquiry for State of Emergency Practices, that this was a domestic remedy that Köksal v. Turkey had not exhausted. For this reason the ECtHR did not admit the case.
However, regardless of its effectiveness, can the Commission be considered a domestic remedy in respect to Article 8 of the Convention in context of protecting of dignity and reputation of a person in terms of their position?
The Commission of Inquiry for State of Emergency Practices was established with Decree Law No. 685 and the duties of the Commission are specified under Article 2. How these decisions should be applied is stipulated under Article 10.
According to those provisions, those who have been dismissed from their offices as a consequence of the Decree Law should bein instances where entire legal entities have been closed down, the requirement to assign other employment is deemed to be terminated.
It is understood that a remedy was not sought to end or undo the consequences of publishing people’s names and other private details. (In this instance remedies may have included removing the original list from official websites, or publishing a correction that the named person was not in fact linked to terrorist organisations.) Since the Commission’s decisions are not accessible to the public, it was not publicised that these dismissals from office or the closing down legal entities were breaches of law. Therefore the adverse impact was not eliminated.
The ECtHR does not consider itself to have connection with legal qualification of the events and thus considers the arguments independently of the applicant, the government and the legal context. In the Köksal v. Turkey decision the Court points out that State of Emergency Commission may produce a remedy to dismissal from office. However, it does not mention that no remedy has been attempted to correct the effects of publicly stating that an individual has connections to terrorist organisations.
When considering Articles 2 and 10 of Decree Law No. 685, it is understood that the Committee is not a domestic remedy to breaches of Article 8 of the Convention in respect to individuals’ reputation and honour. Therefore it raises a number of questions that the Court did not consider the basis of this case and avoided any assessment in respect to these rights.
Can it be said that a government list, naming individuals or organisations which it alleges have connections with terrorism, is in compliance with the Convention?
According to Article 8 of the Convention, everyone has the right to respect for their private life. This right also covers individual’s right to dignity and respect related to their name and reputation. In this context, the government is liable for protection of, and respect for, private life. Paragraph 2 of the Article stipulates that some interference to this right is deemed necessary in a democratic society, provided that it is legal and for a legal purpose.
In States of Emergency and War, a derogation (deviation) can be applied in connection with this right provided that Secretary General of the UN and the Council of Europe are informed. Article 15 of the Convention stipulates that before a state can derogate from its obligations in a state of emergency, but only under the following criteria:
- Derogation must be used only to the extent strictly required by the situation
- It must be proportionate
- It must not be inconsistent with other obligations under international law.
In this context, although some deviation can be applied to Article 8, the interference allows for inspection by the Court within a framework of the criteria above. Such inspection should be conducted in the context of a contemporary interpretation of the Convention, universal and integral principles of rights, and the ‘target of democratic society’ specified in the prelude to the Convention. In this context, interpretations of other international legal mechanisms should also be observed.
The General comment no. 16(32) of UN ICCPR indicates that some degree of interference to Article 17 (the right to privacy) and rule of law can be acceptable in states of emergency. In the context of other international liabilities, Pacta sunt servanda, stipulated under Articles 26 and 27 of Vienna Convention on the Law of Treaties, should be observed. This requires the government to keep to the treaty in good faith and avoid arbitrary applications – as required by the principles of recognition, protection and observance.
When considered in this context, the Turkish government must have first endeavored to undertake any and all efforts to prevent violating these rights before proceeding. a test case on non-recognition of the Convention occurs.
The UN Human Rights Committee concluded in its decision on the Sayadi and Vinck v. Belgium case that UN Security Council’s decision to publish a list, on the internet and in official Belgian government media, naming individuals and organisations it believed had a connection with the Taliban and Osama Bin Laden (and thus a connection with a terrorist organisation) violated individuals’ right to privacy.
More importantly – although Article 103 of the UN Charter stipulates that, in the event of a conflict between the obligations of the Members of the United Nations and their obligations under any other international agreement: their obligations under the Charter and Resolutions of Security Counsel shall prevail – it can only be acceptable to the extent that such provisions comply with human rights and the requirements of a democratic society. Therefore, it is underlined that ‘human dignity and human rights’ cannot be sacrificed for sake of ‘security’ even in the case of periods and states of emergency when terrorism a severe threat. ECHR also concluded in the same way previously in the Nada v. Switzerland decision.
From this point of view, as the case in Turkey has become a practical case: when considered together with the circumstances of the situation, it is evident that the government’s actions caused much more loss. Particularly, it is not an exaggeration to say that being named as a terrorist in the official gazette constitutes a threat to the right to life in Turkey, a country which is politically polarised.
On the other hand, it should be considered that this conflicts with freedom of expression in terms of deterrent effect of interfering with media entities. Even if it is argued that it is in the interests of public security, and there is a need for quick decisions in that context, there is no evidence that measures were undertaken to prevent the violation of rights. Moreover, even in the case of conviction, the details of a person’s identity are not published, therefore choosing to disclose them by means of administrative discretion cannot be considered ‘proportional’. It is possible to say that this publication it is an arbitrary action because it has become a standard, indeed systemic, administrative practice.
In this context, it should be said that the Turkish state has not only breached the Convention; but that its persistant stance against international rule of law amounts to not recognising or respecting the Convention.
In conclusion, sharing the names of individuals to the general public in the lists attached to the Decree Laws, and stating that the individuals have connections with terrorism constitutes a violation of Article 8 and, contrary to decision on Köksal v. Turkey, it remains the case that no internal remedies regarding this have become practicable. Meanwhile the practice of publishing the names of people alleged to be connected with terrorism causes dangerous repercussions which are a severe threat to democratic society.
 Resmi Gazete is the official publication of the Republic of Turkey. It is published daily and created and distributed by the Prime Ministry Directorate of General Legislation Preparation and Publication.
 Köksal v. Turkey, no: 70478/16, 06 June 2017.
 Köksal v. Türkiye, para 25-30.
 For a widen explanation about effectiveness of the Commission please see: K. Altiparmak, Is the State of Emergency Inquiry Commission, Established by Emergency Decree 685, an Effective Remedy?, Human Rights Joint Platform (IHOP) (February 2017) p. 1 < http://www.ihop.org.tr/en/wp-content/uploads/2017/03/IS-THE-STATE-OF-EMERGENCY-INQUIRY-COMMISSION.pdf, > accessed 18 August 2018 (‘IHOP 2017’).
 Published in the Official Gazette no 29957 on 23 January 2017, <http://www.resmigazete.gov.tr/eskiler/2017/01/20170123-4.htm> accessed 17 September 2018.
 Zafer Öztürk v. Turkey, no 25774/09, 21 July 2015, para 41.
 Van Hannover v. Germany, no: 59320/00, 24 June 2004, para 50-53.
 According to the article 15 of ECHR and article 4 of UN ICCPR, any state may, in certain circumstances, take measures deviating from its obligations under those conventions. However the relevant mechanisms (Secretary General) should be informed before this occurs.
 Such as the UN Human Rights Comittee, quasi-judicial bodies and other relevant legal mechanisms
 Human Rights Committee, General Comment 29, States of Emergency (article 4),
U.N. Doc. CCPR/C/21/Rev.1/Add.11 (2001). http://hrlibrary.umn.edu/gencomm/hrc29.html
 Latin: ‘agreements must be kept’ – a basic principal of civil and international law
 In the context of General Comment 29 of the UN Human Rights Committee on States of Emergency, such as Georgia v. Russia (I) (application no. 13255/07)
 UNHRCttee, Com. no: 1472/2006, CCPR/C/94/D/1472/2006, 22 October 2008.
 Nada v. Switzerland, [GC], no: 10593/08, 12 September 2012.