Aziz Kamil CanEnglish

PASSPORT UNLAWFULNESS AND THE DESPERATES SAILING TO DEATH

By Aziz Kamil CAN

When many children lost their lives in the capsized boat tragedies in Aegean Sea, one of the pro-government pool media columnists criticized and accused the victims of the crackdown on the Gulen Movement. This columnist, ignorant of the realities in Turkey, is angry with the parents of these children who lost their lives on high seas, does not hesitate to insult their parents and asks them why they commit such a suicide instead of sending their kids abroad through legal ways.

However, in Turkey throughout the last two years under state of emergency, it was stated by the relevant ministry that more than 400 thousand people were subjected to legal proceedings on terrorism charges. Among these people, travel bans to abroad were issued for those who were lucky enough not to be arrested or released on bail. Worse than that, in line with an emergency decree-law, even the passports of the family members of those detained were canceled or their passport requests were refused although they are not involved in legal proceedings. In particular, assets and bank accounts of those detained or arrested were freezed even if these people were released later. These people who lost their jobs were left to hunger in the country as they were labeled and were not able to find jobs even in the private sector.

At the end of the two years, it was announced by senior officials that passport restrictions were lifted for about 150 thousand people when state of emergency rule was over. However, shortly after, it was understood that this statement did not reflect the reality. It was revealed that passports restrictions were either not lifted or reimposed a few days after they had been lifted. Although it was denied by the government sources, in practice the restrictions are still valid in contradiction with the Constitution, national legislation and all international human rights documents.

Because of such unlawfulnesses Turkey has been downgraded at an incredible speed in the last 7-8 years in the global rule of law index. This shows that laws are implemented in the country arbitrarily rather than in conformity to the constitution and laws.

Freedom of travel, which is the main topic of this article, has been regulated by the article 23th of the Constitution as follows: “The citizen’s right to travel abroad can only be restricted by a court decision on the basis of crime investigation.”

We will discuss how this right is being restricted today without court decision and how such an implementation contradicts the laws. We would like to make a brief reference to the provisions of the international documents about the freedom of travel by which Turkey is abide according to article 90 of the Constitution.7

Article 2 of the Additional Protocol No. 4 of the European Convention on Human Rights provides that & 2. Everyone shall be free to leave any country, including his own. 3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a demcratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.& This provision has become part of the national law as it was ratified by Turkey (since the ratification document has not been submitted yet, Turkey is not a party to this Protocol. However, with respect to the principles of presumption of innocence and individual responsibility enshrined in the article 6 of the Convention, private life in article 8 and other relevant articles, Turkey’s responsibility is clear.)

In addition, Article 13 of the Universal Declaration of Human Rights and Article 12 of the International Covenant on Civil and Political Rights (1966) are other international conventions securing this (×abovementioned×) freedom.

Article 22 of the Passport Law has been indicated as the basis of passport restriction used as a tool for pressure, threat and punishment during the period of the SOE (State of Emergency). The phrase that “People whose departure from the country is deemed………… inappropriate for the general security by the Interior Ministry are not given passport or travel document” stipulated in this regulation has become void after 2010 constitutional amendment.

Because, according to constitutional protection, freedom of travel can only be prohibited by a court decision, not by discretion or a decision of the Ministry which is an administrative authority. In 2010, Beşir Atalay, Interior Minister at that time, by emphasizing the amendment, made the following statement: ” we are annulling the international travel bans which lack court decision, without making any amendment in the laws, because the Constitution has a definite provision on it. At this moment, we have abolished the international travel bans, which are not based on a judicial decision.”

“Nonconformity with the Constitution” in the Passport Law, has been taken one step further with Article 5 of SOE Law No. 667 (Law No. 6749). According to this article, the passports of those who are identified as harmful can be revoked by the Ministry, moreover even if they are not identified as harmful, the passports of their spouses can also be revoked if deemed necessary by the Ministry. Unfortunately this article has been applied to hundreds of thousands of people. This regulation, which was made by a Decree Law for the period of the SOE, has been enacted as law and continues to be in force after the SOE period.

Even in this unlawfulness which resulted in unjust sufferings of hundreds of thousands and dragged many to death, a concrete justification was required. It is required by the Article 22 of the Law no. 5682 that, those whose departure from the country is deemed as prejudicial for the general security; and by the article 5, paragraph 2 of the law no. 6749 that, when there is concern with regard to the general security, only then a travel ban can be imposed by the administrative discretion. This means that only identification of concrete grounds can lead to such an administrative act and in the absence of those grounds, no restriction can be imposed on the person in question.

Being a spouse of the persons mentioned in the article 5 paragraph 1 of the Law no. 6749 cannot be solely regarded as a reason for a travel restriction according the second paragraph of the same article. It is required by law to clearly set forth what risks/prejudices for the general security is to emerge when a spouse of a prosecuted person travels abroad. In its judgement of the case of Riener v. Bulgaria, the ECHR has put emphasis on the `proportionality` principle between the desired result and the means to achieve this result. To assume proportionality, the existence of sub-principles of `convenience`, ‘necessity’ and `proportionateness ` must also be separately proved. Therefore, in compliance with the article 90 of the Constitution, even if there had been no Constitutional Amendment in 2010, administrative decision for travel ban must be lifted in accordance with the international conventions to which Turkey is party.

Despite the fact that the members of the Constitutional Court, who had been appointed by the political will, have declared that emergency decree laws are not in the scope of scrutiny, in the still-valid article 15/1 and 15/2 of the Constitution, describing `the core domain (of rights) that is considered as inviolable even under emergency state`, it is ensured that `nobody shall be held guilty until so proven by a court ruling` and also `the obligations under international law are not violated`. Consequently, the freedom of movement (i.e. freedom to leave the country), which is referred to and ensured by both the Constitution and international laws, may be restricted only by the decision of a judge. Accordingly, and as Prof. Kemal Gozler very rightly puts, the last regulation, even if it was brought by an emergency decree law, certainly falls within the scope of Constitutional Court’s examination.

Contrary to the Constitutional Court, which, in practice, considers bowing to the political will as duty and refrains itself from conflicting with the Ministry of Interior by turning a blind eye to such a constitutional breach, the Council of State, the highest of the administrative courts, revealed in 2013 the constitutional breach in the Passport Law:

In its order, dated 31/2/2013, file no: 2008/921 and order no: 2013/314, the Council of State said: The plaintif was arrested and later acquitted of the accusations of the membership of an illegal organization and separatist propaganda. Moreover, he has never been convicted by a court. It is understood that he was denied of issuance of a passport for the reason that he had been kept under constant surveillance by the law enforcement units. However, according to the Article 23(5), which was amended by the Article 3 of the Law no. 5982, the right to leave the country may only be restricted by a decision of a judge in accordance with the necessities of a judicial investigation or prosecution. The provisions of the Constitution which broaden the individual rights and freedoms and of which the individuals are beneficiaries, may be implemented retrospectively. In this framework, it is decided that the administrative act and the ruling of the Administrative Court, which rejected the application for the removal of the restriction of freedom to leave the country, i.e. issuance of a passport, do not conform the laws.

The regulation in question contradicts Article 90 of the Constitution with respect to the international conventions and it is in conformity with Article 23 of the Constitution because of the the reasons discussed above. It also contradict the Article 38 of the Constitution. Emphasizing that criminal responsibility is personal, Article 23, in line with international human rights, ensures that a person cannot be punished for someone else’s crime even though he or she is related to the accused. Spouse or family members of the person who is under investigation, on trial or even convicted cannot be stripped of their constitutional rights for the crimes of the perpetrator.

In a country where the constitution is not respected, and law is deemed worthless, accusing the parents who are fleeing to save their lives, with the murder of their children is no longer seen as strange.

Nevertheless -regardless of anything- fight against unlawfulness and in this context, to file suits against the administration for damages and criminal actions and to pursue these to the last authority is of vital importance.

It should not be forgotten that “to show affection to a hungry monster only increase its appetite, not its mercy. It also makes it to ask for the fee of tooth and nail that it uses to tear you apart as a compensation for its wear and tiredness”.

This is the situation of our country which is covered with dead soil. Our county is full of mute evils (masses who are careless of all atrocities) and people who cannot or doesnot claim their rights. We should always remember that acquiescence to illegality shall only worsen the situation and bring about new ones.

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