PPJ- Brussels, 4 December 2017
The Expert Council on NGO Law of the Council of Europe published an opinion on “The Impact of the State of Emergency on Freedom of Association in Turkey” on 30 November 2017.
The Opinion underlines that “the Council of Europe values stated above have been under increasing life-threatening pressure in Turkey since the Government declared the State of
Emergency sixteen months ago.”
“Legal analyses and the ensuing conclusions show incontrovertibly that Turkey—a country of immense geopolitical, historical and cultural importance—is contradicting, even abandoning, its march along the path of democracy, human rights and the rule of law.” the Opinion stated.
Direct attack on the backbone of human rights
The Opinion underscores that the Turkish authorities are conducting ‘a direct attack on the backbone of human rights’ as Amnesty International has rightly stated.
“The principal victims of this attack are to be found in the ranks of NGOs, academia and the media, namely the organs of society to which a government should look for partnership in upholding human values and fostering active citizenship.” said the Opinion.
This Expert Council Opinion pinpoints examples of the existence of a legal vacuum, of legal uncertainty, of abuse of power, of impunity, of arbitrariness, of denial of judicial review, of an absence of proportionality, of partiality, of juridical inconsistencies, even on the part of the Constitutional Court of Turkey.
The Opinion stated that “CoE various bodies—as well as other international organizations—have raised concerns over the continuous prolongation of the state of emergency, and urged the Government to bring it to a conclusion.”
The Opinion reminded that on “24 April 2017 the Parliamentary Assembly of the CoE (‘the PACE’) voted to reopen the monitoring mechanism in respect of Turkey until ‘serious concerns’ over respect for human rights, democracy and the rule of law are addressed in a satisfactory manner.”
The Opinion underlines that “the Venice Commission and the Commissioner of Human Rights of the CoE have both raised profound reservations about the overall compatibility of the Decrees with international standards—and indeed, with pertinent domestic legislation.”
The Opinion also states that “vague language of the rationale for the NGOs dissolution however falls short of the requirement for proportionality and government’s obligation to apply the minimum interference necessary to accomplish the legitimate goal.”
Impartiality of Turkish Constitutional Court was called into question
The Opinion stresses that impartiality of the Turkish Constitutional Court (TCC) was called into question when TCC dismissed two of its members invoking the Decree no. 667 and citing “the common conviction” of the members of TCC as well as “the information from the social circle” as sufficient grounds for the dismissal on 4 August 2016.
The Opinion points out that “the Opinion of the Venice Commission also details serious problems with regard to the lack of effective legal remedies, including those for dissolved NGOs and other legal entities.”
Inquiry Commission is under the control of the executive branch
The Opinion underlines that “the composition of the Inquiry Commission for the State of Emergency Measures (“Commission”) does not guarantee its impartiality, given the controlling influence of the executive branch (Government) in this respect. In addition, similar to the administrative courts which are responsible for the review of applications contesting decisions of state authorities, the Commission does not have the power to order a stay of execution for any decision (“transaction”) which originates from the state of emergency. Furthermore, the Decree does not guarantee an independence of the Commission’s members.”
The Opinion expresses profound concern that “while the case log is expected to reach 500.000 applications, that will make it virtually impossible for the Commission to both observe due process and deliver timely justice.”
World leader in jailing journalists
“Following the coup attempt, the government closed down by decree over 160 media outlets, most linked to the Gülen movement or Kurdish media. The number of journalists in pretrial detention on the basis of their writing and journalistic activities surged to 144 by mid-November, making Turkey once again a world leader in jailing journalists. Presenting no evidence of criminal wrongdoing, authorities detained many reporters and columnists employed by media outlets allegedly linked to Gülen.” the Opinion said.
“The foregoing reports therefore suggest that measures taken during the State of Emergency against NGOs and other segments of civil society have gone beyond the requirement of necessity, and give rise to the political vendetta launched against those that are not deemed sympathetic towards the Government/President’s causes.” the Opinion stated.
The Opinion concludes that “Turkey has fallen short of the foregoing commitments. There are serious substantial and procedural concerns with respect to the Emergency Decree No. 667 (‘Decree’) as well as the other emergency decrees affecting NGOs.”
The Expert Council on NGO Law was created in January 2008 by the Conference of INGOs of the Council of Europe. The Expert Council carries out thematic and country studies on specific aspects of NGO legislation and its implementation that seem to pose problems of conformity with international standards, notably the European Convention on Human Rights and Recommendation (2007)14 on the legal status of NGOs in Europe.