Submission to The UN Human Right Committee
1- Erdoğan's 'Gift from God': How the Coup Attempt Fueled Türkiye’s Shift to Authoritarianism and Mass Purge
'A gift from God' was one of Erdoğan's first descriptions related to coup attempt in July 15. At first no one realized that God's gift meant a chaotic environment in which he needed to declare a national emergency with no checks and balances and then transform Türkiye’s parliamentary democracy into an executive presidency.
Following the military coup attempt, a state of emergency was declared across Türkiye for a period of 3 months on July 20, 2016. The state of emergency, which was extended seven times, was lifted on July 18, 2018, after two years. During this period, a total of 32 Emergency Decree Laws (OHAL KHK) were issued, beginning with the first on July 23, 2016, implementing various measures. Notably, public servants named in the annexes of 15 Emergency Decree Laws were dismissed with a lifetime ban from public service. These dismissals occurred without any administrative or judicial process, based solely on alleged membership, affiliation, connection, or contact with terrorist organizations or groups deemed to be operating against national security. The number of dismissals from public service in this manner exceeds 130,000.
Türkiye used the right to derogate some treaty-based human rights obligations which is granted by Article 15 of the European Convention on Human Rights (ECHR) and Article 4 of the International Covenant on Civil and Political Rights (ICCPR). Both articles are phrased similarly, allowing for derogation during a public emergency that endangers the nation's survival. In this process, measures taken may involve derogation from obligations under the International Covenant on Civil and Political Rights regarding Articles 2/3, 9, 10, 12, 13, 14, 17, 19, 21, 22, 25, 26 and 27, as permissible in Article 4 of the said Covenant.
It should be noted, however, that Turkish Constitution does not grant the executive a “carte blanche” in a state of emergency but imposes certain limitations. The restrictions on the Government's emergency powers are outlined in Article 15 of the Constitution. This article permits the "partial or total" suspension of fundamental rights and freedoms "during the state of emergency," but only to the extent necessary for the situation and as long as "international law obligations are not breached." In any case, these restrictions must be proportional and temporary, without violating obligations arising from international law. Otherwise, the decisions made will not be consistent with the nature of the state of emergency regime.
During the state of emergency regime The Government had unchecked authority to legislate through emergency decrees during the state of emergency, as Parliament failed to provide oversight. This lack of control posed a serious threat to the democratic legal order, with the measures taken being irreversible.
Indeed, the state of emergency decrees enacted following the coup attempt revealed numerous arbitrary actions by the executive branch that transgressed human rights and freedoms, and which cannot be justified under the principles of proportionality and necessity. Notably, among these transgressions is the violation of the 'Right to Participate in Public Affairs,' as enshrined in Article 25 of the ICCPR, which affected over 130,000 public employees without individualized and justifiable reasons.
Turkish MP Gergerlioğlu underscores the arbitrary nature of Article 4 of Decree Law No. 667, enacted following the 2016 coup attempt. Published on July 23, 2016, this law permits the dismissal of individuals from public service based solely on suspected affiliations or connections with groups deemed threats by the National Security Council. This provision allows for such decisions without concrete evidence, relying instead on mere suspicion or probability. Gergerlioğlu contends that this has resulted in extensive purges, dismissals, and significant human rights violations.
The government, under the state of emergency following the 2016 coup attempt, abused the extraordinary powers granted for national security by exceeding constitutional and international legal limits. Despite only a small number of military and law enforcement officers being involved in the coup, nearly 50,000 were dismissed without any investigation through emergency decrees. Additionally, 35,000 employees from the Ministry of National Education, which posed no immediate threat due to its lack of armed forces, were also dismissed without any administrative or judicial process.
In essence, the dismissal mechanism has manifested not as a pursuit of a lawful objective, but rather as a form of collective retribution and punishment, aimed at purging a particular social group. Indeed, the legitimacy of the concerns raised by Gergerlioğlu has been confirmed by statements made by various international bodies.
The Venice Commission found highly speculative the Turkish government's claim that, although the “active phase” of the coup lasted only a few hours, “the risk of another coup attempt remains, as many of Mr. Gülen's supporters are still present in the State apparatus”, following the dismissal of more than a hundred thousand public officials and the arrest of tens of thousands of people. ONHCR explicitly affirmed that the sheer number, frequency, and the lack of connection of several decrees to any national threat, seem to indicate the arbitrary nature of some measures, and point to the use of emergency powers to stifle any form of criticism or dissent vis-à-vis the Government.
In October 2016, the Commissioner for Human Rights of the Conseil of Europe urged Turkish authorities to “dispel fears by communicating very clearly that mere membership or contacts with a legally established and operating organisation, even if it was affiliated with the Fethullah Gülen movement, is not sufficient to establish criminal liability and to ensure that charges for terrorism are not applied retroactively to actions which would have been legal before 15 July”. In the same memorandum, Commissioner gave the example of French emergency state mechanism by highlighting the importance of the effective check and balance system executed by the national Parliament, National Human Rights Institution and Ombudsman avoiding any arbitrary intervention of the executive.
Concerns expressed by leading international human rights authorities about arbitrary interference with human rights in dismissals under emergency decree laws, along with warnings from the Council of Europe that the ECHR might rule against Türkiye, pressured the Turkish government to establish a commission to address these dismissal cases.
The Inquiry Commission on the State of Emergency Measures, established by Decree Law No. 685 on January 23, 2017, was initially met with lofty expectations from those affected by the emergency decrees. This Commission, which will be explored in detail in the fourth chapter, was structured according to Article 1/2 of the decree law. It was composed of seven members: three appointed by the Prime Minister from among public officials, one by the Minister of Justice from the judiciary, one by the Interior Minister from civil administration chiefs, and two by the Supreme Board of Judges and Prosecutors from rapporteur judges in the Court of Cassation and the Council of State. Article 12 of the decree law stipulates that the Prime Ministry would handle the Commission's secretariat services, meaning that the staff responsible for reviewing applications and reporting to the Commission were civil servants directly accountable to the Prime Minister. This setup raised concerns about the independence of the Commission, as the Prime Minister held the authority to reassign or remove these staff members, leaving them without job security.
The most significant impact of the Commission, established in 2017 and concluding its work in early 2023, has been the delay it caused in the pursuit of legal recourse and applications to the European Court of Human Rights (ECtHR) for those affected by postcoup dismissals. Notably, the ECtHR's first rulings on dismissal cases, in which the Court examined the merits, involved individuals who had not been dismissed by Emergency Law decrees, but by administrative bodies directly connected to them. This distinction allowed these individuals to appeal directly to administrative courts without having to first go through the Commission.
The OHAL decrees have led to widespread personal rights violations for those dismissed from public service. These dismissals breached the right to participate in public affairs, as outlined in Article 25 of the ICCPR, and caused significant socio-economic hardships, effectively leading to "social death" for many. Individuals dismissed were banned from reentering public service and faced barriers to private sector employment. As a result, a large number of people, with approximately 80% being married and 92% of those having children, have faced severe economic and social consequences. The ruling party's arbitrary use of the dismissal mechanism has generated widespread fear, stifling the ability of public sector employees who oppose the government's views to speak out. Many young people in the opposition are now hesitant to pursue careers in the public sector due to the risk of losing their jobs and facing exclusion from private sector opportunities due to vague and ambiguous evaluations. This has created a pervasive climate of fear.
Article 25 of the Covenant recognizes and protects the right of every citizen to take part in the conduct of public affairs, the right to vote and to be elected and the right to have access to public service. Whatever form of constitution or government is in force, the Covenant requires States to adopt such legislative and other measures as may be necessary to ensure that citizens have an effective opportunity to enjoy the rights it protects. The conduct of public affairs, referred to in paragraph (a), is a broad concept which relates to the exercise of political power, in particular the exercise of legislative, executive, and administrative powers.
Subparagraph (c) of article 25 deals with the right and the opportunity of citizens to have access on general terms of equality to public service positions. To ensure access on general terms of equality, the criteria and processes for appointment, promotion, suspension, and dismissal must be objective and reasonable. Affirmative measures may be taken in appropriate cases to ensure that there is equal access to public service for all citizens.
Basing access to public service on equal opportunity and general principles of merit, and providing secured tenure, ensures that persons holding public service positions are free from political interference or pressures. It is of particular importance to ensure that persons do not suffer discrimination in the exercise of their rights under article 25, subparagraph (c), on any of the grounds set out in article 2, paragraph 1.
After analyzing the general context of the Emergency Decree Law and the general principles regarding the article 25 of the Covenant, we will investigate in the next chapters the compliance of dismissals by the emergency decree laws in the post-coup period with the principles the article 25 in the light of the other human rights principles.
2- Legal Ambiguities and Discriminatory Practices: Unveiling the Criteria and Processes Behind Post-Coup Dismissals in Türkiye
The criteria used to assess the links of the individuals to the Gülenist network have not been made public in the emergency decree laws. The Venice Commission rapporteurs were informed that dismissals are ordered on the basis of an evaluation of a combination of various criteria, such as, for example, making monetary contributions to the Asya bank and other companies of the “parallel state”, being a manager or member of a trade union or association linked to Mr Gülen, using the messenger application ByLock and other similar encrypted messaging programmes. It has been revealed that during criminal proceedings, other criteria were used in behind closed doors dismissal decisions, such as police or secret service reports, analysis of social media connections, donations, websites visited, and even the residence of the persons in question and their relatives in student dormitories belonging to “parallel state” structures.
As a matter of fact, the following statement by Mehmet Yılmaz, the head of the 2nd Chamber of the HSYK, who decided to suspend thousands of judges and prosecutors, which corresponded to twenty percent of the entire judicial staff at the time, on the morning of the July 15 coup attempt, reveals that there was a team that was working on surveillance of public officials as if in preparation for the post-coup process, and that there was a surveillance of judges and prosecutors who were perceived to be AKP opponents and/or members of the Gülen Group: “On the morning of the July 16, we suspended 2740 judges and prosecutors as the HSYK 2nd Chamber. However, that list was not prepared overnight. We had been working on it for three years”.
Abstract Principles, Tangible Consequences: Loyalty, Allegiance, and Administrative Arbitrary Power
In modern state governance, it is quite natural to have specific provisions regulating the relationship between civil servants and the state. This status is recognized in the opinions of the Venice Commission and the case law of the ECtHR under the term "executor/carrier of public authority". The obligations of civil servants to the state are defined in the Civil Servants Law as the 'duty of loyalty to the Constitution and laws' (Article 6). This obligation is further consolidated by the article on neutrality and allegiance to the state (Article 7). Given the nature of public service, it is generally accepted that civil servants have specific obligations towards the state. While this issue falls within the domain of state sovereignty, it is evident that in systems where the separation of powers is not functioning properly and the executive branch has amassed disproportionate power, abstract concepts like loyalty are prone to misuse. Indeed, the government has frequently employed vague terms such as "loyalty" and "commitment to the state" to justify its arbitrary dismissals, both to domestic and international audiences.
It is also noteworthy to recall the European Court of Human Rights' judgment in Baser and Ozcelik v. Türkiye, which involved the unlawful detention of two judges for releasing police officers detained for their role in the 17-25 probe investigations. The Court emphasized that, when referring to the “special trust and loyalty” judges must observe, it refers to loyalty to the rule of law and democracy, not to the holders of State power. While there is a distinction between the concept of loyalty for a judge and a public servant, it is crucial that loyalty should never be interpreted as allegiance to the ruling party, but rather to the State, Constitution, democratic values, and the rule of law.
The Decree Laws cited in the rationale for dismissals include terms such as "relation," "connection," "membership," and "affiliation." Additionally, concepts like "institutional opinion" and "superior's opinion" are employed to justify dismissals and the rejection of appeals. These terms present a significant barrier to objective decision-making. Following the events of July 15, the government, leveraging these decree laws, embarked on a purge against dissenting public employees. Although a relationship of trust and loyalty between civil servants and the state is essential, any allegations of misconduct should be addressed through transparent procedures for each individual case. Consequently, the Venice Commission suggested that a more straightforward system for the provisional removal of public servants, based on a less stringent criterion of loyalty, might have been preferable to permanent dismissals.
The mass dismissals during this period, affecting tens of thousands of people, deviated from the original aim of ensuring public security under the state of emergency and resulted in irreparable harm both to the state and its citizens. Public employees who were dismissed were not assessed based on their involvement in the coup attempt or terrorist activities; instead, they were dismissed on the grounds of legal activities that are fundamentally protected under constitutional rights.
Moreover, the post-coup purge bears similarities to the lustration processes seen in several Eastern and Central European countries after the fall of communism. Although the Turkish purge has its own unique aspects, it is not an isolated case, and the guidelines set by the diverse organs in the CoE and UN should have been followed to during the post-coup period. The UN Human Rights Committee (hereafter referred to as 'HRC’) affirmed that lustration of civil servants on the grounds that they pose a significant danger to human rights or democracy requires an individual assessment, which must be based on objective and reasonable criteria aimed at achieving a legitimate purpose and comply with due process and other rights under the ICCPR.
The concept of "the state benefits from doubt" became one of the foundational principles used by the executive branch during the state of emergency. Legally, such an argument cannot be employed in a rule of law. In a legal system where the state benefits from doubt, it is inevitable that criteria like affiliation, connection, and institutional opinions will be abused by political powers tightly integrated with the executive branch.
In an official report published by the Police Academy Presidency, the higher education institution responsible for training the officer class within the General Directorate of Security, it is evident that the state's law enforcement has significantly strayed from fundamental legal principles. Under the section titled "Legal Struggle Against FETÖ," the report explicitly states: "From an administrative law perspective in the fight against FETÖ, if there is doubt, the state should benefit from this situation. Even the slightest doubt should prevent a person from being employed by the state."
In the first sub-section, we evaluated the terms used within the context of the Emergency law decrees. In the next section, we will analyze the terms used in the assessments of the Inquiry Commission feeding with criminal proceedings against dismissed people.
Interconnection Between Unlawful Criminal and Administrative Proceedings
Both the Inquiry Commission and administrative courts have failed to assess applicants' disciplinary status according to the principles of disciplinary law, independently from criminal proceedings. Instead, their decisions have largely relied on criminal investigations that have been deemed unlawful by both the (ECtHR) and the UN bodies in numerous cases.
A method frequently employed by the Inquiry Commission and administrative courts to justify dismissals under the state of emergency decrees is the reference to calls allegedly made by Gulen Movement members through public payphones, kiosks, or markets, purportedly used for covert communication, particularly among military personnel. However, in many cases, the content of these calls is never disclosed, and even unresolved allegations from the prosecution are accepted as sufficient grounds for rejecting appeals and upholding dismissals during the Commission’s evaluations.
Another issue with the OHAL Commission's use of data from criminal proceedings is its disregard for the principle of legality in criminal law. The Commission and administrative courts have deemed dismissals justified based on the belief that many legal actions, such as union membership or routine banking activities, violate the constitutional duty of loyalty. However, Turkish authorities do not deny that the state’s official structures collaborated with organizations and projects associated with Mr. Gülen for many years. Given the extensive network and its presence across all aspects of public, social, and economic life, it is contrary to the fundamental principles of the rule of law to punish individuals merely for their contact with, support for, or involvement in activities on behalf of this network. Indeed, the ECtHR highlighted the need to specifically examine the mental elements of "knowledge and intent" for a conviction of membership in a terrorist organization, given that Fetullah Gülen had previously been acquitted of establishing a terrorist organization and there were no final court decisions prior to 2017. In the same ruling, the ECtHR noted that the interpretation by Turkish courts of the applicant's membership in legally established associations affiliated with the Gülen movement had unpredictably broadened the scope of criminal law provisions. The Court also stated that this interpretation failed to provide the minimum protection necessary against arbitrary interventions.
In the reviews conducted by the Commission, one frequently mentioned and argued point regarding the legality of dismissals is the case of Asya Katılım Bankası A.Ş., commonly known as "Bank Asya." Established on October 24, 1996, the bank was inaugurated at a ceremony attended by prominent political figures, including the then Mayor of Istanbul, Recep Tayyip Erdoğan, State Minister Abdullah Gül. Since its inception, the bank engaged in banking activities with both individual and corporate clients, as well as numerous state institutions. It is important to note that until its banking license was revoked on July 22, 2016, Bank Asya operated as a legally functioning participation bank. To illustrate the level of recognition Bank Asya had in Türkiye, it is sufficient to mention that between 2008 and 2012, it held the naming rights for the TFF 1st League, one of the country's top football leagues.
Public employees have been dismissed for their connections to or associations with the Gülen Movement due to enrolling their children in schools affiliated with the movement. These schools were legally operating under the permission, supervision, and oversight of relevant ministries or institutions at the time and were even recommended by many bureaucrats and politicians due to their national and international successes. Ministers, parliament members, bureaucrats, and various judicial officials in the country had enrolled their children in these educational institutions. In some trials, there were even absurd situations where one parent, who had their child enrolled in the same school, was serving as a judge, while the other was in the position of defendant.
Fees paid for children's education at educational institutions, tuition fees, payments made from credit cards for shopping at stationery chains that are widespread throughout the country, and even payments made to eat at a restaurant allegedly affiliated with FETÖ/PDY are seen as criteria justifying dismissal from public office.
The decision of the Council of Ministers dated 06.02.2007 and numbered 2007/11683, which deemed Kimse Yok Mu Association as one of the organizations that can collect aid without permission under Article 6 of the Law No. 2860 on Aid Collection, was repealed by the decision of the Council of Ministers dated 22.09.2014 and numbered 2014/6812. However, according to the State of Emergency Commission and administrative judicial authorities, even the smallest donations made to this association between 01.01.2014 and 22.09.2014, when it was recognized by the state as a 'public benefit association' and authorized to collect aid without permission, were considered as financial support to FETÖ/PDY. ECtHR noted that actions such as sending a child to schools later shut down, subscribing to publications associated with the Gülen movement, and transactions with Bank Asya, provided they were not intended to finance criminal activities, are simple and indirect elements that do not give rise to reasonable suspicion of the alleged crime. The Court emphasized that in the absence of the necessary intent, these actions benefit from the “presumption of legality”.
The dismissals may also be based on reports by the police or secret service about some individuals, analysis of social media contacts, donations, websites visited, or sending children to schools associated with the Gülenist network, information received from colleagues or neighbors, or subscription to Gülenist periodicals. In a report prepared by the Parliamentary Assembly of the Council of Europe (PACE), which outlines the principles for processes aimed at eliminating the remnants of communist regimes, it is stated that no one should be dismissed from their duties due to legal connections and activities. This safeguard, initially intended for public officials who served under totalitarian regimes, should be applied even more rigorously to public officials who established lawful relationships with a widely supported organization during a period when the country was experiencing a golden age in terms of democratic values.
The Council of Europe’s Lustration Guidelines adopted the view that lustration should be limited to individuals who ordered, committed, or significantly assisted in the commission of serious human rights violations, or to senior officials of organizations responsible for such violations. “Conscious collaborators” should only be subjected to sanctions if they actively participated in serious human rights violations in conjunction with state institutions and if they knew or should have known that their actions would cause harm. In contrast, no one should be subjected to lustration ‘solely for association with, or activities for, any organization that was legal at the time of such association or activities’.
After the coup attempt, the most prominent accusation in Türkiye related to dismissals, criminal trials, and assessments by international mechanisms has undoubtedly been the use of ByLock as definitive evidence of membership in a terrorist organization. ECtHR in its Akgün and Yalcinkaya judgments, which examined the detention based solely on the allegation of ByLock usage, emphasized that merely downloading or using an encrypted communication tool, or utilizing a method to protect the private nature of any message exchange, cannot alone convince an objective observer that illegal or criminal activity is involved. The Court further noted that the use of an encrypted communication tool could only be considered as evidence leading to reasonable suspicion of membership in a criminal organization if it is supported by additional elements, such as the content of the messages exchanged or the context in which they were received and sent. Furthermore, The Working Group on Arbitrary Detention has revealed that activities from periods when the Gülen movement operated legally do not contain criminal elements, and that evidence like ByLock, which is treated as sacred and unquestionable by the Turkish judiciary, does not demonstrate the commission of a crime.
It is evident that the Commission's decisions, which rely on evidence presented by prosecutors even before the conclusion of criminal trials, constitute a significant legal anomaly. The presumption of innocence guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt. It requires that the accused has the benefit of doubt and is treated in accordance with this principle. However, although the Commission has taken decisions on dismissal cases on the basis of concluded criminal proceedings, it is clear that these decisions are not in line with the fundamental principles of the rule of law and human rights, given the ECtHR's judgements in criminal proceedings and statements made by international bodies.
The Rule of Law in Jeopardy: When Political Statements Overshadow Constitutional Norms
Shortly before the coup attempt, on June 6, 2016, the Ankara Chief Public Prosecutor's Office prepared an indictment alleging that the group in question was an armed terrorist organization. However, the first judicial decision on this matter was made by the Erzincan High Criminal Court on June 16, 2016. The first finalized judicial decision was issued by the Court of Cassation’s General Assembly of Criminal Chambers on September 26, 2017.
But, the date of December 17/25, 2013, when operations involving many politicians from the ruling party took place, has been considered as the date when the true nature or ultimate goal of the organization was revealed after the coup attempt of July 15, 2016. Judicial investigations and public sector dismissals under the state of emergency that occurred after July 15, 2016, were based on many legal activities carried out after December 17/25, 2013. Moreover, some decisions have even considered February 7, 2012, when National Intelligence Organization (MIT) President Hakan Fidan and some MIT officials were summoned for questioning by the Istanbul Chief Public Prosecutor, as the date when the organization's ultimate goal became apparent.
The Inquiry Commission informed the public that it used the 2014 National Security Council (MGK) decisions as a criterion in its evaluations and decisions. However, in 2014, the MGK mentioned ‘a structure that threatens our social peace and national security’ without providing a name, and in 2015 this anonymous structure was referred to as ‘parallel state structuring’. The first statement linking the ‘Gulen Movement’ with terrorism was made in May 2016.
Furthermore, in a decision by the Constitutional Court, important findings were made regarding the legal nature of MGK decisions. According to the Court, the legal nature of the MGK's decisions is clearly defined in the relevant article of the Constitution. Accordingly, the decisions taken by the MGK are of an advisory nature and are communicated to the President. In this regard, given that the MGK, as a consultative body, does not have the authority to make executive decisions, it is clear that MGK decisions that have not been separately adopted by the President cannot have legal consequences on their own and cannot be executed independently”.
In a legal system, there are numerous normative rules, but not all of them hold the same weight; they are arranged in a hierarchy where lower rules must conform to higher ones. At the pinnacle of this hierarchy in Turkish law is the Constitution. The views and attitudes of those in political power do not have a place in this hierarchy, as they do not carry legal consequences if individuals choose not to comply with them at the time they are expressed. Furthermore, in a democratic society, it cannot be expected that everyone will think and act like those in political power. As illustrated above, where the statements of political authorities are given prominence, the principles of the rule of law cannot be said to be present.
Inconsistent Application of Dismissal Criteria Based on Political Allegiance
Former Ankara Metropolitan Municipality Mayor Melih Gökçek, who served as the mayor for more than 20 years under the ruling party, was found to have provided financial support to media outlets affiliated with the Gülen movement (later designated as FETÖ) by purchasing 375,000 TL worth of advertisements for channels like Samanyolu TV, Samanyolu Haber TV, Kanaltürk, and Bugün TV. This occurred just three months after the critical date of December 17/25, 2013, which is considered the milestone in the Gulen Movement-AKP split. Despite this, the only consequence for Gökçek was a request for his resignation by the President, highlighting the disparity in how those within the ruling party were treated compared to others. For instance, public employees were dismissed from their positions and subjected to judicial investigations simply for sending a 5 TL (about 3 dollars) donation via SMS to NGOs linked to the same organization.
Moreover, while a public servant's dismissal could be justified by their child’s attendance at a school affiliated with the Gülen movement, no such issue was raised regarding Berat Albayrak (President Erdoğan’s son-in-law), who graduated from a similar school and served as a minister in the cabinet for nearly five years until November 2020.
The inconsistency in legal assessments reflects a bias based on political alignment rather than legal standards. Individuals associated with the Gülen movement were judged differently based on their political stance, leading to dismissals that violate the ICCPR's principle of nondiscrimination based on political opinion.
The next section will address the principles of necessity and proportionality principles from which the government cannot escape, even in emergency regimes, regardless of whether they have derogated from their obligations under international treaties, including article 25 of the ICCPR.
3- The Erosion of Legal Standards: Arbitrary Dismissals and the Principles of Necessity and Proportionality
The principle of necessity requires that measures taken should only be applied in cases of absolute necessity and to the extent required. Proportionality review is the process of assessing whether the means chosen to achieve a particular objective are appropriate and necessary to reach that goal. It involves evaluating whether the selected measures are suitable and not overly broad or excessive in relation to the intended purpose.
States of emergency, as the name suggests, are periods during which extraordinary threats or damages arise that are not encountered in normal times. National legislation may include provisions that go beyond ordinary practices, allowing for quicker and more flexible decision-making by imposing restrictions on fundamental rights and freedoms. However, even with these provisions, any intervention in fundamental rights and freedoms must still align with the requirements of the state of emergency and must be proportional and measured.
Proportionality in Action: How International Standards Guide Emergency Responses
The HRC has stressed that not only the emergency itself, but the “specific measures taken pursuant to the derogation must also be shown to be required by the exigencies of the situation,” and has expressed concern over insufficient attention being paid by derogating states to the principle of proportionality. Under both the ECHR and the ICCPR, the Government's discretion is confined to what is "strictly required by the exigencies of the situation" and must respect rights that cannot be derogated. Venice Commission stressed that these restrictions are crucial “since State Practice shows that the gravest violations of human rights tend to occur in the context of states of emergency and that States may be inclined, under the pretext of a state of emergency, to use their power of derogation for other purposes or to a larger extent than is justified by the exigency of the situation”.
Despite no ongoing coup threat, dismissals persisted throughout the two-year state of emergency, which was extended seven times. The introduction of temporary Article 35 to Decree-Law No. 375 allowed Ministries to extend the authority to dismiss public servants for an additional 3 + 1 years, effectively prolonging the emergency measures.
In essence, extraordinary powers that should have been granted to the executive branch for a limited time have been extended for an unreasonably long period, far beyond what could be justified by the purpose and necessity of the state of emergency. The Venice Commission and the ECtHR have further narrowed the framework required for the legality of such measures by emphasizing that, by their nature, measures must be temporary, limited to positions that pose a threat to individual rights and democracy.
The Turkish Constitution actually provides that measures implemented in a state of emergency must not “violate obligations under international law”, and that even under a state of emergency, certain fundamental rights must be respected. According to the State of Emergency Law of 1983, the scope of such decrees should be limited to the original emergency purpose.
A key problem with the State of Emergency Decrees lies in the lifetime bans on public service and severe restrictions on dismissed individuals' rights. Travel bans and Social Security records have effectively blocked private sector employment, far exceeding the decrees' intended scope.
The ECtHR and the Venice Commission, along with the ‘guidelines on lustration laws’, have repeatedly evaluated dismissals from public service in the context of the rule of law and human rights. Unfortunately, the fundamental principles outlined by the Council of Europe were not respected during the post-coup period in Türkiye.
One of the core principles is that dismissals from public service should not exceed a duration of five years. The ECtHR has characterized the 10-year ban from public service as a severe sanction and has noted that it transformed what should be a temporary process into a permanent one. In some decisions where the Court evaluated five-year bans, it found that the inability of individuals to find employment in the private sector constituted a violation of the right to respect for private life58. In the same vein, General Comment No. 29 on Article 4 of the ICCPR points out that measures derogating from the provisions of the Covenant must be of “an exceptional and temporary nature”. Thus, the indefinite and permanent bans on public service imposed in Türkiye for all dismissals are incompatible with fundamental human rights law standards. In a democratic state governed by the rule of law, justice must prevail over any desire for revenge.
Furthermore, it is essential to distinguish between general decrees and individual measures in order to avoid breaches of the principles of necessity and proportionality and consequently to allow for proper judicial review. The Venice Commission highlighted its concerns regarding the problematic nature of mass dismissals: “mass dismissals of public servants executed through non-justiciable, ad hominem decree laws and following a summary procedure, are highly problematic also because that makes it extremely difficult, if not impossible, to pay due heed to the principles of necessity and proportionality and verify whether these dismissals were justified. A distinction between general decree laws and individual measures is vital for introducing ex ante administrative procedural guarantees and ex post judicial guarantees securing a minimum of the rule of law and protection of basic human rights.”
The Turkish authorities insisted that every dismissal is based on solid evidence, and every file is considered individually; in their words, “the dismissal decisions are taken as a result of comprehensive research and assessments conducted separately for each public servant”. The question at hand is how to prove that the decisions made by the executive branch comply with the principles of necessity and proportionality, especially in a situation where, even after the establishment of a commission, there has been no information provided about the nature of the offenses leading to dismissal, and where the dismissals have not been individualized or justified. The Venice Commission considers that the public servants concerned should have been able, at least, to know the evidence adduced against them and be allowed to comment on that evidence before any decision on dismissal was taken, and The Commissioner for Human Rights similarly stressed that, “at a minimum, persons should be able to have access to evidence against them and make their case before a decision is taken”.
While a broader margin of appreciation is essential during states of emergency to safeguard human rights and the rule of law, it must not be exercised arbitrarily, as this leads to decisions that are unjust, unreasonable, or incompatible with the rule of law.
Arbitrary Nature of The Mass Dismissals in The Absence of The Principle of Proportionality and Necessity
In periods when the executive branch uses broad powers, such as during states of emergency, the legality of its actions and decisions is measured by adherence to the principles of proportionality and necessity. In the same vein, PACE warned against the risk that “counter-terrorism measures may introduce disproportionate restrictions or sap democratic control and thus violate fundamental freedoms and the rule of law, in the name of safeguarding State security.” On several occasions the Venice Commission has underlined that “even in a state of public emergency the fundamental principle of the rule of law must prevail.” When these principles are not followed or are not subject to scrutiny, the concept that arises is arbitrariness. Far-reaching, discretionary powers exercised by the administration always lead to a certain degree of arbitrariness and erode the rule of law, but without the protection of human rights without the rule of law it is impossible. In fact, failure to set out clear criteria for the dismissals and the absence of individualized evidence has facilitated arbitrary dismissals on the grounds of score-settling, political affiliations or even personal conflicts.
It is obvious that different administrations have interpreted vague criteria related to membership or connections with a terrorist organization in varying ways, leading to different outcomes in similar cases or wrongly categorizing lawful actions taken in good faith as evidence of guilt. This scenario leads us naturally to the conclusion that the motivations behind some dismissals may be arbitrary assessments. Indeed, the Turkish authorities' statement that there was no need to strictly apply the 1983 Law is a testimony to the legality of the government's actions during the state of emergency.
The dismissal of police officers and soldiers who clearly did not take part in the coup and who worked for a while after the coup with the State of Emergency Decree Laws is contrary to the principle of necessity and proportionality. The dismissal of these people, who acted in accordance with the hierarchical structure within the state after the coup, does not require urgency; if there was any reasonable suspicion of wrongdoing, they should have been subjected to an administrative trial. It is not possible to establish a connection between the direct dismissal from public office of these individuals and the urgent need to deal with the dangers posed by the attempted coup.
Another arbitrary measure of the executive branch is to treat all professional groups as law enforcement officers by grouping them under the same threat perception in the mass dismissal process. In the public sector, the potential danger of a public employee who holds sovereign power, such as military personnel, intelligence officers, police officers, or judges, is significantly different from the risk posed by individuals such as teachers, academics, or non-specialized workers. While there might be justifications for swift dismissal without usual procedural protections for those in positions of authority, this rationale does not extend to the latter group, as less intrusive measures are typically available for them.
According to the CoE, lustration measures should be limited to ‘positions in which there is good reason to believe that the subject would pose a significant danger to human rights or democracy, . . . such as law enforcement, security and intelligence services, the judiciary and the prosecutor’s office’. Individuals who hold positions involving a portion of the State’s sovereign power should not be compared to teachers. The ECtHR determined that teachers ‘cannot be regarded as custodians of public authority responsible for safeguarding the State's general interests.’
State officials subjected to arbitrary purges as detailed above were not given an adequate opportunity to express themselves before the relevant authorities. They were not informed about the evidence against them, leading to a fundamental violation of their right to defense and depriving them of effective judicial oversight.
In view of the foregoing, instituDE believes that the post-coup dismissals extended far beyond the scope of lustration practices, which are accepted under international law when applied under specific conditions during transitional periods. These dismissals instead took the form of a politically motivated mass purge, lacking a legitimate basis and violating international legal standards.
4- Judicial Review Undermined: The Turkish Judiciary's Oversight Failures
Judicial scrutiny of the actions of the executive and the separation of powers are essential to provide safeguards against arbitrary interference and to protect the rule of law. In a state under the rule of law, allegations of serious crimes must be documented and argued before an independent and impartial court of law, with due respect of the principles of fair trial and rights of the defence.
Article 14 of the ICCPR is particularly intricate, as it encompasses a range of guarantees with varying scopes. The first sentence of paragraph 1 provides a broad guarantee of equality before courts and tribunals, applicable irrespective of the nature of the proceedings. The second sentence of the same paragraph grants individuals the right to a fair and public hearing by a competent, independent, and impartial tribunal established by law, specifically when facing criminal charges or when their rights and obligations are being adjudicated in legal proceedings.
The right to equality before courts and tribunals broadly ensures, in addition to the principles outlined in the second sentence of Article 14, paragraph 1, the rights of equal access and equality of arms, guaranteeing that all parties involved in the proceedings are treated without any form of discrimination.
In relation to Article 14, two main concerns arise regarding the lack of judicial oversight over arbitrary interventions on Article 25. First, judicial authorities reviewing dismissal decisions have neglected international law guarantees for effective oversight. Second, the judiciary's politicization has undermined checks and balances, causing systemic failure in Türkiye’s judicial system as an effective remedy.
Absence of Procedural Safeguards in Mass Dismissal and Commission Inquiry Processes
Although the right to a fair trial is not explicitly listed as a non-derogable right under Article 4(2) of the ICCPR, the HRC has interpreted it as a right that cannot be derogated from when doing so would undermine the protection of non-derogable rights. Even in situations where derogation from Article 14 is permissible, the principles of legality and the rule of law mandate that the core elements of a fair trial must still be upheld. Article 14(2) of the ICCPR highlights the fact that the “right to be presumed innocent until proved guilty according to law” (the presumption of innocence) is essential to upholding the right to a fair trial. It involves questions of the burden and standard of proof in criminal proceedings as well as the treatment of an accused person that may undermine the presumption of innocence. First and foremost, it should be noted that without reaching any conviction, the dismissal lists created based on information obtained through institutional opinions and superior opinions, as mentioned above, and publicly announced in a way that everyone can easily access, severely violate the presumption of innocence.
The Commission, tasked with upholding fair trial principles under state of emergency decrees, has clearly failed. The Venice Commission stressed that it should have provided individual case reviews, respect due process, and issue reasoned decisions based on specific evidence.
According to Article 9 of Law No. 7075, the Commission reviews applications solely based on the files and issues either an acceptance or rejection decision. This file-based review process completely eliminates the chance for applicants to present a defense. In fact, whether the decisions made by the Commission are the result of a thorough evaluation is even open to debate. The Commission, which began its work on May 22, 2017, concluded approximately 128,000 cases over about 5.5 years, completing its work on January 12, 202378. Given the enormous workload, it was likely that the seven Commission members heavily relied on the secretariat's support. Article 12 of Decree No. 685 stipulated that the Prime Ministry would manage the secretariat services, thereby increasing the executive branch's control over the proceedings. While a substantial number of public officials dismissed under emergency decrees should, in principle, be reinstated following a review aligned with Council of Europe standards, the Commission—charged with impeding the ECtHR process amid the broader purge targeting the Gülen movement—has, unsurprisingly, reinstated only 15 percent of the cases. However, as aptly noted in paragraph 131 of the Venice Commission's opinion referenced in the ECtHR's Köksal judgment, the Inquiry Commission should have based its decisions on the expulsion of public officials only on significant ties to terrorist organizations and concrete actions that objectively cast serious doubt on their loyalty to the democratic legal order.
The right to be informed of the charges “promptly” entails that individuals should be informed as soon as they are formally charged with a criminal offense under domestic law or publicly named as such. The specific requirements of subparagraph 3(a) can be met by presenting the charge either verbally—provided it is later confirmed in writing—or in writing, as long as the information includes both the relevant law and the alleged facts supporting the charge. But, during the dismissal and its inquiry process, persons in question were not provided with evidence against them and were unable to defend themselves in an adversarial manner in many cases.
Additionally, Article 5 of the Emergency Decree grants the Commission the authority to request any information and documents from public institutions, organizations, and judicial bodies; however, this information has not been shared with the applicants. Consequently, applicants were compelled to submit their applications with vague statements, without knowing the specific reasons they were subjected to the measures at the time. This situation represents a clear violation of the principle of equality of arms.
Article 38/4 of the Constitution stipulates, “No one shall be deemed guilty until their guilt is established by a court decision.” Additionally, Article 15/2 recognizes the presumption of innocence as a fundamental right that cannot be partially or fully suspended. The principle of equality of arms demands that parties facing allegations are given a fair opportunity to defend themselves without facing significant disadvantages. However, assessment of the cases based on accusations within ongoing criminal proceedings constituted a clear violation of the presumption of innocence.
The Commission has not only failed to fulfill the fundamental procedural requirements expected of a court, but also raises serious questions about its systemic independence and impartiality as a tribunal.
Concerns Regarding Systemic Impartiality and Independence Issues in the Turkish Legal System
The HRC describes the notion of a ‘tribunal’ as “a body, regardless of its denomination, which is established by law, is independent of the executive and the legislative branches of government or enjoys in specific cases judicial independence in deciding legal matters in proceedings that are judicial in nature”. In post-coup scenarios like Türkiye’s, the concept of an independent "tribunal" is crucial. The UN High Commissioner for Human Rights emphasized that judicial independence is essential for fair trials, especially in counterterrorism contexts. An independent judiciary enhances credibility, legitimacy, and effectiveness, thereby fostering public trust and ensuring the effectiveness of counterterrorism strategies.
During Türkiye’s state of emergency, the judiciary largely ignored arbitrary and unlawful actions by the executive. The Turkish Constitutional Court justified this lack of oversight by claiming it lacked jurisdiction over emergency decree laws. However, the Court had previously interpreted its authority more broadly, suggesting it had the competence to review the constitutionality of these laws when they extended beyond the emergency's scope.
In March 2018, emergency decree laws related to mass dismissals were approved by the Turkish Grand National Assembly, gaining legal status and becoming subject to constitutional review. The main opposition party, CHP, quietly filed an annulment lawsuit against Law No. 7086, which ratified KHK No. 686. The Constitutional Court ruled on the case in June 2021, but the decision was only published seven months later. Despite reviewing claims of unlawfulness, the Court endorsed the government's purge policies instead of defending the law, leaving potential oversight to the ECtHR.
Another crucial point regarding the aforementioned Constitutional Court decision is that the Court annulled the grounds for dismissal related to "membership and affiliation" stated in the decree laws. The Court noted that the administration could not conduct dismissals based on these reasons without a judicial decision confirming membership. However, the Court did not see the use of vague terms such as "contact" and "connection" as grounds for dismissal as problematic. In other words, while the Court found dismissals based on serious reasons like membership in a terrorist organization unlawful, it strangely allowed dismissals based on ambiguous and abuse-prone terms like "contact" and "connection" to remain in the decree laws, deeming them lawful. The Court argued that the dismissals only affected the emergency period, despite causing permanent changes to the individuals involved, and declared them lawful. It did not assess the dismissals based on proportionality or necessity but stated they complied with Article 15 of the Constitution. This approach suggests that the Constitutional Court, by annulling certain aspects of the decrees, aimed to appear as a functioning judicial body while subtly permitting the AKP government's dismissal mechanisms to stay in place.
In fact, the Pişkin case, where the applicant was dismissed by the administration under Decree Law No. 667, clearly illustrates how the Turkish judiciary merely echoes the administration's stance on the issue of dismissals. The ECtHR criticized the local judiciary for not thoroughly addressing Pişkin’s arguments, finding that his right to a fair trial under Article 6 § 1 of the Convention was not upheld. The Court also noted that, despite the significant impact on Pişkin’s private life, local courts did not accurately assess the dismissal and simply accepted the administration’s decision. The ECtHR emphasized the need for judicial review of measures affecting fundamental rights, even in cases involving national security, and warned that unchecked state power could lead to arbitrary interference with Convention rights. It concluded that local authorities failed to establish the real reasons behind Pişkin’s dismissal, and that judicial review was insufficient. The Pişkin case, which serves as a reflection of the plight faced by around 100,000 individuals, highlights the degree of helplessness experienced by those subjected to mass dismissals within the framework of domestic law.
Nonetheless, the dismissals of judicial members warrant particular attention, given their pivotal role as the backbone of the rule of law. Similar to the mass dismissals of other public servants, the High Council of Judges and Prosecutors (HSYK), the High Courts and the Constitutional Court are empowered to dismiss judges and prosecutors on the basis of an “assessment” (rather than a reasoned judgment) of their membership or contacts, without having to observe any of the constitutional or legislative safeguards designed to protect the members of the judiciary. The collective dismissals and suspensions of judges from lower instances courts through lists issued by the High Council of Judges and Prosecutors have been largely arbitrary, and that appropriate procedures were not followed, including respect for the fundamental principle of presumption of innocence, the provision of specific evidence, and individual reasoning of the case, or the ability to present a defence.
The right to have access to public service on general terms of equality as provided for in article 25 (c) of the Covenant, a dismissal of judges in violation of this provision may amount to a violation of this guarantee, read in conjunction with article 14, paragraph 1 providing for the independence of the judiciary. In democratic societies, special safeguards protect the judiciary's independence and impartiality. If there are strong reasons to suspect judges or prosecutors acted improperly, their dismissal must undergo rigorous scrutiny and meet high evidence standards. According to the Commissioner, the High Council of Judges and Prosecutors's decisions failed to meet these stringent requirements.
Since the 17-25 December corruption investigations, the AKP Government has viewed the existence of an independent judiciary as a critical issue for its own interests. At present, following purges conducted under the pretext of the July 15 coup attempt, there is no opportunity to speak of an independent judiciary capable of performing its duties on sensitive matters. The restructuring and operational changes of the HSK (Supreme Council of Judges and Prosecutors) following legislative amendments, the replacement of approximately 4,000 judiciary members with those alleged to have political connections, the judiciary’s failure to uphold ECtHR and Constitutional Court rulings, visible political factionalism within the judiciary, collectively highlight various aspects of the Turkish judiciary’s diminished capacity and effectiveness in administering justice.
5- Deprivation of economic and social rights for people dismissed by the emergency decree
Those dismissed from public service face a range of severe consequences, including public disclosure of their names, bans on working for private security companies, termination of social benefits for themselves and their families, confiscation of property, cancellation of licenses, and prevention from practicing law. These measures also lead to significant psychological and societal issues.
Dismissals result in lifelong bans from public office and typically involve public announcements in the Official Gazette, which violate the right to be free from stigma and contribute to social and economic exclusion. Additionally, dismissed individuals experience various hardships such as eviction, disruption of social relationships, inability to use bank accounts or credit cards, loss of property transactions, suspension of social aid and scholarships, and professional licensing issues.
These effects have led to such dismissals being referred to as "civil/death" in public discourse. Although there is no explicit legal ban on working in the private sector, the public disclosure of dismissals and the inclusion of this information in insurance records effectively limit employment opportunities. Many dismissed individuals struggle to find work in the private sector or are employed under conditions of low pay and no insurance. Besides constituting violations of the right to participate in public affairs, the dismissals affected various other human rights protected by international treaties to which Turkey is a party, including the rights to an adequate standard of living, to adequate housing, to health, to freedom of movement, and to an effective remedy.
None of the thirty-three dismissed public sector workers interviewed by Amnesty International found formal employment months after their dismissal. They relied on savings, help from friends or family, irregular jobs like cleaning, or minimal union payments, and none believed they could sustain themselves long-term under these conditions. A woman who previously worked at the top of the civil service in the President’s office but is now barely surviving by making food to sell, told Amnesty International: “They don't allow us to leave the country, they don’t allow us to work, I have a daughter to support… what do they want me to do?” .... When I told them that I had been dismissed by decree they told me that they could not employ me, that it could put them in danger, that their licence to operate could be cancelled”.
Interviews with individuals dismissed by emergency decrees reveal the severe social exclusion they face, as they are stripped not only of their right to work in the public sector but also of many fundamental human rights. Dismissed individuals often endure long working hours, up to 12 hours a day, 6-7 days a week, and perform tasks typically assigned to multiple people, all while working under insecure, uninsured conditions with low wages.
Discrimination in the workplace is not limited to uninsured employment, long hours, and harsh conditions. Some participants reported that employers, believing they were obliged to accept any job, paid them lower wages or delayed payments. The discrimination faced by KHK-affected individuals while job searching and working exemplifies "direct discrimination" as defined by international human rights mechanisms. Direct discrimination involves unequal treatment based on an individual's status and includes examples such as being refused entry to establishments, receiving lower wages or pensions, verbal abuse, or denial of social security benefits.
In the long term, given that expulsions led to the exclusion of individuals from a wide range of employment opportunities and there is no access to alternative income sources like social security benefits, it can threaten the right to an adequate standard of living as protected under Article 11 of the International Covenant on Economic, Social, and Cultural Rights (ICESCR). Dismissal consequences, such as forcing individuals and their families to vacate state-provided housing, infringe upon the right to family and private life protected by the ICCPR and the ECHR, potentially violating these rights. Additionally, measures like routinely canceling passports to prevent people from leaving the country violate the right to freedom of movement, as outlined in Article 12 of the ICCPR.
The challenges women face after dismissals are particularly severe. The Committee on the Elimination of Discrimination against Women expressed deep concern about the impact of the government's repressive counter-terrorism measures on women's rights and the rule of law. The Committee highlighted that during the state of emergency, thousands of women, including civil servants, judges, military personnel, and academics, were dismissed from their jobs, and these measures continue to negatively affect women's human rights and the rule of law today.
6- Conclusion
The mass dismissals with Emergency Decrees, affecting hundreds of thousands of people, stems primarily from the suspension of the rule of law and judicial independence in Türkiye. After July 15, 2016, the judiciary became highly influenced by the government, making it impossible for the victims of witch-hunt process in state institutions to find justice through the current legal system. Many court decisions, particularly in criminal cases, have been overturned by higher courts due to violations. The judiciary must be restructured according to international standards, and the existing problematic terror legislation should be revised to prevent ideological misuse.
Even though the overwhelming majority of public servants dismissed under the state of emergency decrees had no involvement in the coup attempt, the arbitrary mass dismissals conducted under the guise of breaching the obligation of loyalty to the state cannot be rationalized within a democratic society. Invalid decisions by the Inquiry Commission should be nullified, and emergency decrees leading mass dismissals should be annulled with all their legal consequences. Additionally, measures should be taken to ensure that victims are reinstated to positions equivalent to their previous roles, considering their career development.
Additionally, we believe that, even though the issue has not yet been included in the List of Issues Prior to Reporting (LOIPR) documents of the States parties, the matter of dismissals through Emergency Decree Laws with such significant, widespread, and systematic characteristics must be evaluated under Article 25 of the ICCPR.
Author - Hamza Mazlum
Hamza Mazlum has earned two separate law degrees, one from Ankara University Faculty of Law and the other from Bordeaux University. He completed his master's degrees in Public International Law at Jean Moulin Lyon 3 University and International Law at the University of Strasbourg. Following his master's studies, he completed a five-month internship at the Parliamentary Assembly of the Council of Europe.
After the internship, he worked for 1.5 years in various human rights associations and at a law firm based in Luxembourg. He has also published a book in Turkish titled Fransız Hukuku Işığında Temel Özgürlükler Hukuku (Fundamental Freedoms Law in Light of French Law). Currently, he is pursuing a second master's degree in Algorithmic Law and Data Management at Côte d'Azur University, while working in the legal department of an energy company.
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