Turkey: Rights Protections Missing From Emergency Decree

The first emergency decree under Turkey's state of emergency is arbitrary, discriminatory, and unjustified as a response to the violent coup attempt or other public order concerns.

The July 23, 2016 decree orders the closure of thousands of private educational institutions, hospitals, and clinics, and associations allegedly linked to a movement inspired by Fethullah Gulen, a cleric the government blames for a violent coup attempt on July 15-16. The decree allows the permanent discharge of judges, prosecutors, and civil servants without any investigation or possibility of legal challenge. The decree also extends police powers to detain some suspects for up to 30 days without being taken before a judge and seriously curtails detainees' right to private communications with lawyers.

"The first state of emergency decree goes well beyond the legitimate aim of promoting accountability for the bloody July 15 coup attempt," said Emma Sinclair-Webb, Turkey director at Human Rights Watch. "It is an unvarnished move for an arbitrary, mass, and permanent purge of the civil service, prosecutors, and judges, and to close down private institutions and associations without evidence, justification, or due process."

The decree was published and became law - no. 667, published in the Official Gazette - on July 23. It is the first such decree by the Council of Ministers headed by President Recep Tayyip Erdogan under Turkey's three-month state of emergency, which entered into force on July 21. On July 22, the Turkish government notified the Council of Europe that it was also "derogating" from - that is, temporarily imposing extraordinary limitations on - the guarantees under the European Convention on Human Rights (ECHR), to which it is a party, which the convention says a government can only do "in times of public emergency threatening the life of a nation."

The decree identifies 35 private health clinics and hospitals; 1,043 private schools and student hostels; 1,229 foundations and associations; 15 private universities; and 19 trade unions, federations, and confederations for closure. The decree states they are closed on the grounds that they "belong to, are connected or are in communication with the Fethullah Terrorist Organization (FETO/Parallel State Structure), which has been identified as a threat to national security." As many as 60,000 civil servants - including judges, prosecutors, police, teachers, and bureaucrats - have already been suspended from their jobs, and this decree terminates their careers in public service without a disciplinary investigation.

The decree stipulates that the government can seize property owned by foundations, hospitals, and clinics. Even if institutions or groups are not named in the published lists, under article 2/3, they can still be closed down if they are "identified as being a threat to national security or are established as being members of terrorist organizations or linked to them or in contact with them."

"The wording of the decree is vague and open-ended, permitting the firing of any public official conveniently alleged to be 'in contact' with members of 'terrorist organizations' but with no need for an investigation to offer any evidence in support of it," Sinclair-Webb said. "The decree can be used to target any opponent - perceived or real - beyond those in the Gulen movement."

Any judge or civil servant, including prosecutors, can also be removed from their jobs on the grounds of being deemed a threat to national security, with no possibility of challenging the decision, reinstatement, or future employment as public officials. In each case the measure to strip people of their position rests on an administrative decision without an investigation.

The decree increases the maximum period of police detention from four days for terrorism and organized crime to 30 days, which violates the European convention, not least as it increases the risk of torture and ill-treatment on top of the reports already documented by Amnesty International of abuses in detention since the failed coup.

The European Court of Human Rights had ruled in a 1996 case against Turkey that detention without being taken before a judge for 14 days, even in a state of emergency, violates its human rights obligations under the convention. The court, acknowledging that Turkey then had a legitimate state of emergency and derogation, held that "it cannot accept that it is necessary to hold a suspect for 14 days without judicial intervention." It noted that the period was "exceptionally long, and leaves detainees vulnerable to arbitrary detention and torture." (Aksoy v. Turkey, Application No. 21987/93, judgment December 18, 1996 paras. 78, 86.)

The decree also stipulates that in cases relating to terrorism and organized crime, communications between a detainee in pretrial detention and their lawyer can be recorded, monitored, limited, or stopped at the request of a prosecutor if the authorities deem that there is a risk to security, or if such communications may be a means of passing on messages or instructions to "terrorist or other criminal organizations." Doing so violates the right to an effective defense, Human Rights Watch said. The authorities reserve the right to appoint another lawyer to represent the detainee. The decree also significantly curtails detainees' rights to family visits and phone calls.

Another troubling provision says that "individuals who make decisions and perform their duty in the context of this decree bear no legal, administrative, financial or criminal responsibility for those duties performed." That sends a clear signal to police officers and other officials that anything goes, Human Rights Watch said.

"The government should know that the introduction of 30-day police detention cannot be justified even under a state of emergency and that it increases the possibility of torture and ill-treatment of suspects," Sinclair-Webb said. "That risk is compounded by the removal of private communications between a prisoner and their lawyer, which is also incompatible with the right to an effective defense."