Constitutionality Review

26/1/2022
Press Release No: Constitutionality Review 2/22
Press Release concerning the Decision on the Provisions Regulating the Measure of Dismissal from Public Office and Additional Measures
The Constitutional Court, at its session dated 24 June 2021, decided as follows regarding the request for annulment of certain provisions of the Law no. 7086 on Adoption of the Decree Law on Taking of Certain Measures under State of Emergency (file no. E.2018/81): a. The phrase “… a member of or having a relationship or …” included in the first sentence of Article 1 § 1 thereof was unconstitutional and annulled; b. The remaining part of Article 1 § 1, the phrase “… and/or their status as a public officer…” included in the first sentence of Article 1 § 2, as well as the List no. 1 attached thereto were constitutional, and the request for their annulment was dismissed; and c. The fourth and fifth sentences of Article 1 § 2 were unconstitutional and annulled. |
Contested Provisions
It is laid down in the contested provisions that those who are found to be a member of or having a relationship or link with terrorist organisations or any structure, formation or group found to have committed acts against the national security of the State and whose names are indicated in the List no. 1 be dismissed from public office without any further action, that they be deprived of their status as a public officer, and that their passports be revoked.
Grounds for the Request for Annulment
It was maintained in brief that no objective, impartial and transparent investigation was conducted during the period when the said measures were applied within the scope of the impugned provisions; those undergoing such investigations were dismissed from public office without being afforded the opportunity to exercise their right to defence; the notions “a member of or having a relationship or link” included in the said provisions were vague and unforeseeable; the application of measures based on the decision of the National Security Council (“the NSC”), which was a political and administrative body, would undermine legality; the rules were neither necessary nor proportionate for eliminating the threat to public order, and they were incompatible with the requirements of the state of emergency, as well. It was also asserted that it was at the discretion of the judicial authorities to decide whether a given person was a member of the terrorist organisation or whether a structure or formation was a terrorist organization; accordingly, imposition of a sanction on these persons for their alleged relationship with terrorist organisations, in the absence of a finalised court decision, was in breach of the presumption of innocence; and although the Inquiry Commission on the State of Emergency Measures (“the Commission”) was subsequently established to supervise the expediency of such measures, it failed to afford an effective supervisory mechanism regarding dismissal from public office. It was further argued that although it was stipulated in Article 130 of the Constitution that the university lecturers might not for any reason be dismissed from their office by authorities other than the competent bodies of the universities and the Council of Higher Education, the aforementioned measures were also applied against the university lecturers in spite of the express provision of the Constitution; imposition of the said measures through the state of emergency decree law as an individual measure for the sole reason that they be excluded from judicial review and the adoption of this state of emergency decree law embodying the said measures in the form of a law, , obviously amounted to the usurpation of function; and individuals’ many fundamental rights were violated due to dismissal from public office and implementation of additional measures.
The Court’s Assessment
a. As regards the phrase “… a member of or having a relationship or …” included in the first sentence of Article 1 § 1 of Law no. 7086
The impugned provision was applied only once, upon its publication in the Official Gazette, for the purpose of eliminating the threat underlying the state of emergency, and was effective and bore consequences only at the material time. In this respect, it is not in the form of a general regulation that has been applicable even after the state of emergency period.
Thus, the constitutionality review of the provision should be made under Article 15 of the Constitution. However, at the outset, a review should be made under the relevant constitutional provisions, especially the provision embodying the restricted right, and Article 13 of the Constitution, whereby the regime of restriction of rights and freedoms and the protection afforded with respect thereto in the ordinary period are regulated.
Presumption of innocence is enshrined in Article 38 § 4 of the Constitution, which provides “No one shall be considered guilty until proven so by a court decision”. Besides, it is laid down in Article 36 of the Constitution that everyone has the right to litigation either as plaintiff or defendant and right to a fair trial. It is emphasized within the scope of the legislative intent in incorporating the phrase “fair trial” into the relevant article that the right to a fair trial, which is also safeguarded in the international conventions to which Turkey is a party, has been incorporated into the wording of the article. As a matter of fact, Article 6 § 2 of the European Convention on Human Rights provides “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law”.
In accordance with the contested provision, those whose names are specified in the List no. 1 were dismissed from public office for being a member of or having a relationship or link with terrorist organisations or any structure, formation or group found to have committed acts against the national security of the State. The impugned phrases may cause that the persons whose names are stated in the List no. 1 annexed to the Law -and who have been under a criminal investigation or prosecution for membership of a terrorist organisation, but in respect of whom no final court decision has been issued due to the pending proceedings- be considered as a member of or having relationship with the terrorist organisation. In addition, the said provision contains no explanation as regards the existence of a judicial process concluded with a final judgment in respect of the listed persons. Thus, the impugned provision containing phrases that may incriminate individuals in the absence of a final conviction is in breach of the presumption of innocence.
Accordingly, the impugned provision which imposes restrictions beyond the guarantees provided by Article 13 of the Constitution, in contravention of Articles 36 § 1 and 38 § 4 in the ordinary period, should be examined within the scope of Article 15 of the Constitution.
Although Article 15 of the Constitution allows for the suspension, partially or entirely, of the exercise of fundamental rights and freedoms as well as the derogation from the guarantees enshrined in other provisions of the Constitution under a state of emergency, this authority is not necessarily unlimited. It is set forth in Article 15 § 2 that even under these circumstances, the individual’s right to life and the integrity of his corporeal and spiritual existence shall not be interfered with, and he shall not be compelled to reveal his religion, conscience, thought or opinion, nor be accused on account of them. It is also stipulated therein that no action can be taken in contravention of the principle of non-retroactivity of offences and punishments and the presumption of innocence.
As the contested provision contains phrases which may give the impression that a person is guilty in the absence of a finalised court decision, it has been found to be in breach of the presumption of innocence which is among the inviolable rights and freedoms even under a state of emergency.
Consequently, the contested provision has been found unconstitutional and therefore annulled.
b. As regards the remaining part of Article 1 § 1, the phrase “… and/or their status as a public officer…” included in the first sentence of Article 1 § 2, as well as the List no. 1 attached thereto
It is evident that the measures taken against public officers, who have been found to have relationship or link with terrorist organisations or similar structures and formations posing a clear and imminent threat to the national security in spite of their liability to serve the State with loyalty, are intended for eliminating the threats or risks underlying the declaration of state of emergency.
The measures envisaged in the contested provisions were applied during the aforementioned period, thereby being effective and bearing consequences only at the material time. The fact that the said provisions brought about permanent changes regarding the status of the individuals against whom the impugned measure was applied should not be interpreted as their also covering the period after the state of emergency. The relevant provisions were applied only once, upon their publication in the Official Gazette, and bore consequences in respect of certain persons. Given that they were applied merely with respect to those whose names are indicated in the List annexed to the Law, it is obvious that they have not had a general, abstract and binding effect on everyone, having the prospect of also being applied in the future. In this respect, the impugned provisions are not in the form of a general regulation that have been applicable even after the state of emergency period. Thus, the constitutionality review should be made under Article 15 of the Constitution, whereby the regime of restriction of fundamental rights and freedoms under the state of emergency is regulated.
At the outset, a review should be made under the relevant constitutional provisions, especially the provision embodying the restricted right, and Article 13 of the Constitution, whereby the regime of restriction of rights and freedoms and the protection afforded with respect thereto in the ordinary period are regulated.
The provisions envisaging the dismissal from public office and deprival of status as a public officer, through the declaration of such measures by stating the names of the persons concerned in a list, impose a restriction on the right to respect for private life within the meaning of Article 20 of the Constitution.
Accordingly, the impugned provisions envisaging the application of the aforementioned measures in the absence of procedural guarantees fail to satisfy the legality requirement in the ordinary period within the scope of the right to respect for private life, and impose a restriction in contravention of the wording of the Constitution in so far as they concern the university lecturers. Besides, the application of the impugned measures, in the absence of an individualised approach, is incompatible with the requirements of the democratic order of the society and the principle of proportionality in the ordinary period.
The contested provisions, which impose a restriction on the right to respect for private life beyond the constitutional guarantees applicable in the ordinary period, should be examined within the scope of Article 15 of the Constitution, whereby the suspension and restriction of the exercise of fundamental rights and freedoms under the state of emergency are regulated.
The right to respect for private life is not among the core rights enumerated in Article 15 § 2 of the Constitution, therefore, it may be suspended or restricted during the state of emergency. Accordingly, the constitutional guarantees afforded within the scope of the aforementioned right may be derogated under the state of emergency.
The contested provisions -whereby it is stipulated that those who are found to be a member of or having a relationship or link with terrorist organisations or any structure, formation or group found to have committed acts against the national security of the State and whose names are indicated in the List no. 1 be dismissed from public office on a list-based procedure, which is not among the ordinary procedures, and that they be deprived of their status as a public officer, and that their passports be revoked- aim at fighting against the Fetullahist Terrorist Organisation/Parallel State Structure (FETÖ/PDY) that had staged a coup attempt, thereby posing a clear and imminent threat to the democratic order of the State, as well as against other terrorist organisations. In this regard, given the circumstances underlying the declaration of the state of emergency and especially the existence of the administrative and judicial remedies capable of providing an individualised assessment in respect thereof, these provisions cannot be interpreted as imposing a restriction on the right to respect for private life for the purpose of protecting national security and the democratic constitutional order, going beyond the extent required by the exigencies of the situation.
In addition, in view of the foregoing, the restriction imposed on the right to respect for private life by virtue of the provisions envisaging the dismissal of the university lecturers from public office as well as their deprival of public status, in contravention of the guarantees set forth in Article 130 of the Constitution, has been to the extent required by the exigencies of the situation within the scope of Article 15 of the Constitution.
Besides, in determination of the structures, formations and groups acting against the national security of the State, within the scope of the impugned provision, the NSC’s relevant decision has been taken into consideration; however, the said decision has borne no legal consequences, and the measures stipulated by the provision have become legally applicable only through the Decree Law or by the legislator’s will. In other words, the measures laid down in the said provision are not a direct consequence of the NSC’s decision. Therefore, the impugned provision is, in certain aspects, different from the regulation addressed in the aforementioned decision of the Court.
Accordingly, the fact that the impugned provision envisages dismissal from public office as well as other measures, relying on the determination made by the NSC as regards the structures, formations or groups found to act against the national security of the State does not necessarily attribute an executive function to the decisions of the NSC. Therefore, the function attributed to the NSC within the scope of the contested provision does not exceed the limits of authority provided in Article 118 of the Constitution, and thus it is constitutional.
Consequently, the Court has found the contested provisions constitutional and accordingly dismissed the request for their annulment.
c. As regards the fourth and fifth sentences of Article 1 § 2
The measure stipulated by the contested provisions were applied during the state of emergency period for the purpose of eliminating the threat underlying the declaration of state of emergency, and they were effective and bore consequences only at the material time. The fact that the consequences arising from the application of the said provisions have been effective also after the state of emergency period should not be interpreted as their also covering the period after the state of emergency. The relevant provisions were applied only once, upon their publication in the Official Gazette, and hence albeit having borne effective consequences, they are no longer applicable. Thus, the constitutionality review of the provisions should be made under Article 15 of the Constitution.
Freedom to go abroad can be restricted only for the reasons specified in Article 23 of the Constitution. In other words, it is laid down in the Constitution that the freedom to go abroad may be restricted only by the decision of a judge based on a criminal investigation or prosecution.
The contested provisions impose a restriction on the freedom to go abroad with respect to those who have been dismissed from public office, through an administrative act whereby their passports shall be revoked in the absence of a court decision due to a criminal investigation or prosecution, but upon the notification to made by the relevant ministry and institution.
The provisions enabling the revocation of the passports of those concerned in the absence of a court decision do not comply with the safeguards envisaged in Article 23 § 3 of the Constitution regarding the freedom of travel in the ordinary period. Thus, the contested provisions should be examined under Article 15 of the Constitution, whereby the regime of restriction of fundamental rights and freedoms under the state of emergency is regulated.
Although Article 15 of the Constitution allows for the suspension, partially or entirely, of the exercise of freedom of travel or the derogation from the guarantees enshrined in the Constitution in this regard under a state of emergency, this authority is not necessarily unlimited. It is also specified therein that the said arrangements can be made under the state of emergency to the extent required by the exigencies of the situation. Therefore, in order for the restriction on the freedom of travel to be regarded as not going beyond the extent required by the exigencies of the situation, arbitrary interventions of disproportionate nature should be avoided.
Besides, in determining the scope and limits of the extent required by the exigencies of the situation, the relevant process should be considered as a whole, along with the administrative and judicial safeguards afforded against the measure envisaged by the impugned provisions. Denial of access to an effective legal remedy to challenge a regulation that restricts a fundamental right and freedom, under any circumstances, precludes the proportionality of the measure. This is a requirement of Article 40 of the Constitution, as well as a requisite of the principle of rule of law standing for the absolute supremacy of law against arbitrariness.
Annulment of Additional Article 7 of the Passport Law no. 5682 by the Court’s decision no. E.2019/114, K. 2021/36 of 3 June 2021, which is of relevance to the contested provision, does not enable those whose passports have been revoked in accordance with the aforementioned provisions to avail of the administrative and judicial remedies specified in Provisional Article 4 of the Law no. 7075 on the Adoption, with Certain Amendments, of the Decree Law on the Establishment of the Inquiry Commission on the State of Emergency Measures. Accordingly, those who have been dismissed from public office and whose passports have been revoked have not been provided with an effective supervisory mechanism applicable against the impugned measure.
Therefore, the contested provisions, which stipulate that the passports of those who have been dismissed from public office on the basis of the List where their names are indicated shall be revoked under the circumstances of the state of emergency within the scope of the fight against the terrorist organisations posing a clear and imminent threat to the democratic order of the State through a coup attempt or against any structure, formation or group found to have committed acts against the national security of the State, have introduced a restriction, going beyond the extent required by the exigencies of the situation, on the freedom of travel with respect to those concerned.
Consequently, the contested provision has been found unconstitutional and therefore annulled.
This press release prepared by the General Secretariat intends to inform the public and has no binding effect. |