ArticlesEnglishNuri Sungur

THE OHAL COMMISSION AS A DELAYING TACTIC

 

Introduction

The Commission on Examination of the State of Emergency Procedures (the Commission) was established with Legislative Decree No. 685, published on the Official Gazette on 23 January 2017. The decree in question stipulated the establishment, jurisdiction and purpose, and working principles and procedures of the Commission. Moreover, a Prime Ministry Circular published on the Official Gazette No. 30122 (Mukerrer), dated 12 July 2017 added detailed regulations with regard to working principles and procedures of the Commission. After three amendments, Legislative Decree No. 685 was ratified into Law No. 7075 on 1 February 2018.

The purpose of the Commission is to decide on objections to individual practices undertaken directly through legislative decrees. Individuals removed from public service with lists appended to legislative decrees, due to the government’s assessment that they have some sort of connection with the groups “proscribed” by the government could lodge appeals before the Commission. Actually, it is estimated that such appeals constitute 90% of all applications to the Commission.

This article examines the structure and working procedures of the Commission in order to determine whether it is independent of the executive, satisfies the applicants’ legitimate expectations and international human rights standards, and thus, constitutes an effective remedy.

The Commission, due to its Structure, is not Independent of the Executive

The Commission is composed of seven members, three of which were appointed by the Prime Minister (later, the President), one by the Minister of Justice, one by the Minister of Interior and two by the Council of Judges and Prosecutors (CJP).

Regular term of office for commission members are two years. Yet, according to relevant provisions, any member against whom an administrative or judicial investigation is initiated with the suspicion of him having “membership, affiliation, connection or links” to any of the proscribed groups could be dismissed immediately.

The Venice Commission stated that the special temporary body responsible for the review of the state of emergency measures should be independent and impartial.[1]

However, the Commission cannot possibly be independent of the executive, given its composition and the fact that its members do not enjoy security of tenure. Five of its seven members are appointed directly by the executive, while the remaining two are appointed by the CJP, which is under severe influence of the government.

More importantly, initiation of a mere “administrative” investigation is sufficient to dismiss members of the Commission, which demonstrates how insecure their tenure is.

It is clear that these provisions on appointment and dismissal of Commission members have direct effects on decision-making processes.[2] It is simply impossible to argue that members of the Commission are immune to pressure by the government, given that the government itself appoints them.

The Commission Fails to Present an Effective Remedy to Applicants

According to working principle and procedures of the Commission, applicants have no right to give oral testimony or call on a witness. Moreover, before or even after their appeal, applicants have no right to examine allegations or evidence against them. Appeals are decided upon the Commission’s unilateral assessment on the case files.

Persons dismissed with legislative decrees also had to appeal to the Commission without first knowing allegations against them, since legislative decrees mentioned general ties with protracted groups rather than individual reasonings. Therefore, they had to guess as to on which grounds they were dismissed. Any appeal requesting information on reasons for dismissal within the context of right to information was rejected on the grounds that measures taken during the state of emergency were outside the scope of the Law on Right to Information.

It goes without saying that the working principles and procedures of the Commission fall critically behind when compared to the current Turkish standards. For instance, Article 129/2 of the Constitution stipulates that public servants and other public officials shall not be subjected to disciplinary penalties without being granted the right to defence. In addition, according to Article 129 of the Law on Public Servants, any public servant whose expulsion from public office is sought shall have a right to examine investigation files, call on witnesses, and written and oral defence. The Commission grants none of these rights.

Working procedures of the Commission bar applicants from understanding allegations against them and preparing an effective objection. Reducing applicants to file objections without sharing grounds for their dismissals de facto forces applicants to defend themselves against ambiguous and general accusations.[3]

This also demonstrates that the Commission does not have access to all relevant information to issue a fair judgement, as in current state of affairs, all appeals are evaluated on the basis of the information provided by the government on applicants’ ties with protracted groups.[4]

The Commission is a Rubber-Stamp for the Government’s Arbitrary Decisions

The Prime Ministry Circular on the OHAL Commission states that the Commission shall assess appeals only with regards to applicants’ membership, affiliation, allegiance, connection or links with proscribed groups. Accordingly, the Commission has no jurisdiction to examine the conformity of government’s actions with the domestic or international law.

In fact, there is no clarity as to what exactly constitutes “membership, affiliation, allegiance, connection or links” with proscribed groups as well as how the Commission interprets this terminology.

Amnesty International examined more than a hundred rejected appeals and discovered that some applicants were found to have “links”, while others both “links” and “connections” with proscribed groups.

The Commission regarded actions that were perfectly lawful at the time of their undertaking as evidence proving “links and connection with the proscribed groups”. These actions are:

  • Cash deposits to “Bank Asya” after 25 December 2013,
  • “ByLock” -a smartphone application- usage,
  • Membership to certain unions alleged to be affiliated with the Gulen movement,
  • Subscription to media outlets alleged to be affiliated with the Gulen movement,
  • Donations to “Kimse Yok Mu?” Foundation,
  • Employment at institutions and companies alleged to be affiliated with the Gulen movement,
  • Enrolment of children to private schools alleged to be affiliated with the Gulen movement.

All banks, unions, institutions, schools, companies and media outlets were legally-established entities with relevant permits in-place and had operated in accordance with law until 15 July 2016. All these institutions were shut down by the government in the aftermath of 15 July 2016 with legislative decrees. There is simply no official finding that these institutions acted illegally or their actions were unlawful, until 15 July 2016.

However, the Commission attaches no importance to the fact that these actions were perfectly lawful at the time they were undertaken. The Commission assumes that such actions were conscious and with terrorist intent. Therefore, the Commission seeks no evidence in regards to intent or unlawfulness of these acts. Any of the above-mentioned acts are regarded as sufficient proof for dismissal. For instance, membership to a union that operated legally but was proscribed after the declaration of state of emergency is considered enough evidence, on its own, to justify a dismissal.

In short, the commission regards any sort of interaction with certain institutions, which was legal in recent past, enough to declare applicants as having links with proscribed groups. For instance, an applicant who received a judgement of nolle prosequi was turned down by the Commission on the grounds that he was employed by Surat Cargo, Logistics and Distribution Co. between 2005 and 2008. The decision reads as follows: “The fact that the applicant worked at an institution that was shut down due to its allegiance, connection or links with FETO/PDY demonstrates his links with the said organization.[5]

Moreover, the Commission even considered treatment at a medical clinic alleged to have connections with the Gulen movement as sufficient reason for rejection.[6]

It is also observed that the Commission sometimes refers to a “survey of social circle” or “personnel information dossier” in rejecting appeals. As an example, the Commission rejected an appeal on such grounds: “in a personnel information dossier sent by the applicant’s former employer, it is stated that the applicant’s last department possessed a survey of social circle based on trustworthy sources indicating that the applicant has ties with FETO/PDY and it is the institution’s conviction after internal investigations that the applicant has connections with FETO/PDY.[7]

Such information obviously does not qualify legally as evidence and mostly comprised of profiling reports prepared by institutions on their employees or intelligence reports. However, the Commission bases its decisions on these illegal profiling reports and regards them higher even than judicial rulings. In another decision, the Commission rejected another appeal due to a conviction of his former employer, even though the applicant received a judgement of nolle prosequi.[8]

The Commission implements such a low threshold for evidence, the applicants are left with the burden to prove their innocence.[9]

Although the Commission appears to be issuing reasoned judgements, these are in fact stereotype clauses. In “evaluation of the appeal” section of decisions, the Commission uses almost identical texts and do not refer to any specifics of any individual case.

For example, in all 62 cases examined by Amnesty International, wherein deposits to Bank Asya after 25 December 2013 was regarded as evidence, the Commission automatically concluded that “[the applicant] deposited money following the orders of the organization’s leader, as financial support”. In none of these 62 decisions takes the Commission issue with whether the applicant was aware of the alleged directive of Gulen or had any other intent in depositing money.

Conclusion

The Commission received a total of 125 thousand appeals. As of October 2018, the Commission decided on 42 thousand cases, with only 3 thousand in favour of the applicant, while 83 thousand cases are still pending.[10]

This shows that in over a year after its inception on 12 July 2017, the Commission, which was intended to have a mandate of two years, concluded only 33% of the cases, while only 7% of those concluded resulted in favour of the applicant.

In sum, while, in appearance, established to present a remedy to persons dismissed from public office, the Commission offers no effective remedies to applicants and functions as a rubber stamp for the government in its actions taking lawful and unharmful activities as evidence of having links to “proscribed groups”. By this way, the Commission does not only act as a rubber stamp for the government’s illegal actions undertaken through legislative decrees, but also delays victims to resort to effective remedies in their efforts to assert their rights.

[1] The Venice Commission, Opinion on Emergency Decree Laws Nos. 667-676 Adopted Following the Failed Coup of 15 July 2016, 12 December 2016, para. 222.

[2] https://www.amnesty.org/download/Documents/EUR4492102018ENGLISH.PDF

[3] https://www.amnesty.org/download/Documents/EUR4492102018ENGLISH.PDF

[4] Ibid.

[5] The Commission Decision No. 2018/30153: https://www.memurlar.net/haber/782258/ohal-komisyonundan-10-yil-oncesi-surat-kargo-calismasi-icin-karar.html

[6] https://twitter.com/gergerliogluof/status/1064391169411567617

[7] The Commission Decision No. 2018/34945: https://www.memurlar.net/haber/783287/ohal-komisyonu-ndan-dosyasinda-sadece-kurum-kanaati-olan-personel-hakkinda-karar.html

[8] https://www.memurlar.net/haber/773373/ohal-komisyonu-takipsizlik-dosyalarinda-kurum-kanaatine-nasil-yaklasiyor.html

[9] https://www.amnesty.org/download/Documents/EUR4492102018ENGLISH.PDF

[10] http://www.hurriyet.com.tr/amp/gundem/ohal-komisyonu-3-bin-kisi-goreve-iade-edildi-41013488

Show More

Leave a Reply

Your email address will not be published. Required fields are marked *

Close
Close