Q&a On State Of Emergency And Right Of Derogation To Echr

Zagreb Büyükelçiliği 04.08.2016

  1. Why is the state of emergency declared?

The developments unfolded in Turkey was a despicable
coup attempt by a group of plotters in the military, linked to the Fethullahist Terrorist Organization (FETÖ), to overthrow the democratically-elected Government together with the President


and the constitutional order in Turkey. Terrorist plotters
opened fire onthe civilian people, murdered those democracy defenders on the streets under tank palettes, attacked the Presidency and bombed the Grand National Assembly of Turkey (GNAT).They also attempted to assassinate the President. In this turmoil, 246 Turkish citizens lost their lives and 2185 were wounded.In the face of grave and barbaric attacks against national security and FETÖ terrorist organization’s infiltration everywhere, as bitterly revealed during its coup attempt on 15 July 2016, the declaration of the State of Emergency was deemed necessary.

The Council of Ministers of Turkey decided on 20 July 2016 to declare a nationwide state of emergency as from July 21, 2016 for a period of ninety days, pursuant to Article 120 of the Constitution and Article 3 § 1 (b) of the Law on the State of Emergency (Law no. 2935).

The Council of Ministers took this decision in its meeting under the chairmanship of President Recep Tayyip Erdoğan, in view of the recommendation dated 20 July 2016, no. 498 of the National Security Council. The decision was approved by the Turkish Parliament on 21 July 2016.


The purpose of the declaration of the State of Emergency, is neither to restrict fundamental rights and freedoms of our citizens, nor to compromise democracy or the rule of law, but to take required measures in the most speedy and effective manner in the fight against FETÖ terrorist organization in order to save our nation from this raving terror network and return to normalcy as soon as possible. In this process, utmost care will continue to be shown to uphold democracy, the rule of law and the fundamental rights of our citizens, as always.

Although the State of Emergency has been declared for a period of 90 days, all extraordinary measures will be terminated once the result in the fight against the FETÖ terrorist organization is successfully attained.


2. What is the legal basis for the state of emergency?

State of Emergency is a measure envisaged by the Turkish Constitution and regulated by relevant national legislation. The Constitution includes explicit provisions on the state of emergency and provides necessary safeguards through setting out clear conditions, rules and procedures for the declaration of the state of emergency as well as the general principles to be observed during the state of emergency.

State of Emergency is also a practice permissible under international human rights law, including European Convention on Human Rights. Article 15 of the ECHR provides the Member States with the right to take measures derogating from their obligations under the Convention, in public emergency situations.

The Council of Ministers of Turkey decided on 20 July 2016 to declare a nationwide state of emergency as from July 21, 2016 for a period of ninety days, pursuant to Article 120 of the Constitution and Article 3 § 1 (b) of the Law on the State of Emergency (Law no. 2935).

The Council of Ministers took this decision in its meeting under the chairmanship of President Recep Tayyip Erdoğan, in view of the recommendation dated 20 July 2016, no. 498 of the National Security Council. The decision was approved by the Turkish Parliament on 21 July 2016.


Turkey is not the only country who resorted to declare State of Emergency in such circumstances. Many democratic countries did the same when facing similar or even against limited security threats. France, a member of the EU and the CoE, also declared the State of Emergency on 14th November 2015 and has extended it for another 6 months. In this context, France declared that it may take measures derogating from its obligations under the European Convention on Human Rights in accordance with Article 15.

3. Has Turkey suspended the European Convention on Human Rights?

No. Turkey has resorted to the right of derogation as prescribed by the European Convention on Human Rights (ECHR).
Article 15 of the Convention allows the Contracting Parties to take measures derogating from their obligations under the Convention, in extraordinary circumstances such as a state of emergency.

Availing itself of this right Turkey informed the Council of Europe that a state of emergency was declared in accordance with its Constitution and relevant law for a duration of ninety days and that measures taken in the context of this process may involve derogation from the obligations under the Convention.

As it is clearly stated in the Convention, a derogation is not a suspension of rights. It may bring certain limitations to the exercise of certain rights under certain conditions. ECHR does not allow any derogation from a number of Conventional rights, such as the right to life, prohibition of torture, prohibition of slavery, and prohibition from punishment without law.

Many members of the Council of Europe, most recently France, have also made use of this flexibility allowed by the ECHR.

This provision allows States to take necessary measures without delay for the protection of human rights in cases of emergency threatening the life of the nation.

Contracting parties to the ECHR are able to take these measures to the extent strictly bound by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law.

These measures that Turkey may resort to under the State of Emergency, will conform with
the principles of necessity and proportionality laid down in the ECHR and will be compatible with the level of maturity reached by our democracy and our attachment to the rule of law based on human rights.

While taking these measures under Article 15, the States parties naturally continue to be subject to the supervision of the European Court of Human Rights (ECtHR).

4. Are there any legal remedies for the acts and measures taken pursuant to Decree Law no. 667 enacted in the context of the execution of the state of emergency?

Yes. Lawsuits may be filed with the competent courts against all kinds of acts and measures taken within the context of the Decree Law.

Legal remedies are available, including the right of individual application to the Constitutional Court.

5. Is it possible to request stay of execution against the acts and measures taken pursuant to Decree Law no. 667?

To avoid interruptions in the fight against terrorism within the context of the Decree Law, in taking the required measures in the most speedy and effective manner, stay of execution orders cannot be ruled during the state of emergency period. Nevertheless,


a stay of execution against such measures can still
be ruled once the state of emergency period is over, if the conditions still exist.

6. Can dismissals from public service be qualified as a purge?

No. Since the FETÖ is a terrorist network that has infiltrated into state organs for the purpose of taking over the legitimate and democratic state regime, it is urgently necessary to take prompt measures to remove from public institutions those who are


considered to be a member of, or have relation, connection or contact with the terrorists.

Within this framework, the Decree Law No. 667 allows that public officials who are deemed to be members of or have links to terrorist organizations be dismissed from public service. Accordingly, through the boards existing or to be established within their higher bodies, each public institution or organization shall be empowered to dismiss staff from office when their ties to terrorist organization have been found.

Yet, lawsuits may be filed with the competent courts against all kinds of acts and measures taken within the context of the Decree Law.

Legal remedies are available, including the right of individual application to the Constitutional Court. Moreover,

a stay of execution against such measures can also be ruled once the state of emergency period is over, if the conditions still exist.


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