A Commission to review the actions taken under the scope of state of emergency was established 25.01.2017

THE DECREE-LAW,  NO: 685 CONCERNING THE ESTABLISHMENT OF A COMMISSION TO REVIEW THE ACTIONS TAKEN UNDER THE SCOPE OF STATE OF EMERGENCY ENTERED INTO FORCE ON 23.01.2017

This Decree-Law is related to the establishment of a Commission to Review the Actions Taken under the Scope of State of Emergency.

A Commission to Review the Actions Taken under the Scope of State of Emergency has been established to assess and decide upon applications lodged against actions including expulsion from the profession, dissolution of respective organizations and institutions, termination of one's studentship and cancelling the ranks of retired personnel which have been taken directly on the basis of the provisions of Decree-laws, in the absence of any other administrative action, on the grounds of attachment to, or affiliation or connection with terrorist organizations.

The Commission will consist of seven members and will decide by majority vote. Abstentions are prohibited.  

The mission of the Commission is two years and it is possible to extend it for one year every time. Members will be elected for two years. If its term of office is extended, the same members can be reassigned or new members can be elected.

The Commission may obtain all the information and documents it requires from all institutions and organizations, in accordance with the legislation on State secrets and the confidentiality of investigation proceedings.

Applications may be lodged, through governorates or the institution in which they were most recently employed, within sixty days as from the date on which the Commission starts to receive applications. As for Decree-laws issued after the date on which the Commission announced it would receive applications, applications pertaining to those Decree-laws may be lodged within sixty days as from the date of publication.

The Commission will conduct its reviews by carrying out a preliminary examination on the files in terms of primarily formal requirements.

Upon the reinstatement decision of the Commission, the State Personnel Presidency will launch procedures to appoint the relevant individual to another institution with the same post and grade, without prejudice to his acquired rights.  In the absence of a similar post in another institution, the concerned individual will be appointed to his previous institution. Those removed from office when holding a managerial post shall be subject to an appointment that is compatible with their previous position.

On the other hand, those who would like to appeal against the decisions of the Commission will be able to file cancellation proceedings at Ankara administrative courts to be designated by the High Council of Judges and Prosecutors (HSYK).

As for the members of the judiciary who have been expelled from the profession by HSYK and high courts in accordance with Decree Law No. 667; They have been granted the right to file a lawsuit at the Council of State within 60 days, as from the finalization of the decision, and as from the date of publication of this Decree-law in the case of decisions finalized previously.  The provisions of this decree-law may also apply in respect of those who have already filed a lawsuit previously and even those for whom a decision has already been taken.

The freedom to seek one’s right and --in this context-- the right to have access to judiciary are fundamental rights and freedoms, which have not only been guaranteed under our constitution but also under those human rights conventions to which our country is a party. Different from other regimes, the State of Emergency, which has been proclaimed in the aftermath of the 15/7 coup attempt and the real aim of which is to annihilate the whole democratic know-how, values and institutions of our country, has been declared in order to swiftly and effectively cleanse the terrorist locus nested itself in the functioning of the State [but] not in the societal life. However it is clear that, when normalization is ensured in our country, there will be need for a means of legal remedy, that can be pursued under ordinary times, whereby one can seek one’s rights in the face of the measures [taken in the SoE period].

Starting off with this need, and in view of the constructive demands  taken in the framework of the fight against FETO and other relevant terror organizations, an effective domestic legal remedy has been established with respect to the actions initiated or to be initiated pursuant to the Decree-laws. This domestic remedy includes a transparent way not only with regard to the decision-making mechanism but also with respect to the implementability of the decisions. This entails a detailed procedure as to how the Commission decisions will be executed. Commission decisions are open legal remedy, and can be appealed before the administrative judiciary.

On the other hand, real and legal persons against whom a procedure had been launched pursuant to a decree-law have also not been aggrieved, and from their stand-point, too, the date of the establishment of the Commission has been taken as the basis for application. From the stand point of judges and public prosecutors, a domestic remedy at the level of the Council of State has been defined in relation to the decisions on ‘dismissal from profession’; hence they have been given a new opportunity to re-file a lawsuit related to previous [cases brought to] the administrative judiciary and even with regard to those rejection rulings. The previous judicial remedy that already existed with regard to the ‘dismissal from profession’ of judges and public prosecutors, has been reinstated in the same manner for Decree-law actions.

That judicial remedy is opened up for the decisions of the Commission, will provide the opportunity for the expelled [personnel] or closed down institutions and organizations to voice their defenses in front of an impartial judiciary. In this manner, they will have the right to fair trial before an impartial court. Apart from this, the ay to objection, appeal and individual application with the constitutional Court, too, has been opened.

Turkey is determined to protect her democracy by again staying within the boundaries of democracy and to resolve her problems within the framework drawn by the principles of a State governed by the rule of law. Our country is one where everyone has the liberty to seek their rights, where persons and institutions can approach administrative and judicial review mechanisms with regard to any action or procedure having ramifications concerning them. The measures taken in the scope of the State of Emergency against the threat of coup and terror, too, have been taken in order to make sure that Turkey can remain a country as described.

Turkey has demonstrated its will to increase the civil liberties to the extent the threat decreases.

Find below the English translation of the Decree - Law

DECREE- LAW NO:685 DATED 23 JANUARY 2017 ON ESTABLISHMENT OF THE COMMISSION ON EXAMINATION OF ACT ESTABLISHED UNDER THE STATE OF EMERGENCY

The establishment of the Commission on Examination of Act Established Under the State of Emergency (hereinafter “the Commission”) within the scope of the state of emergency has been decreed by the Council of Ministers meeting under the chairpersonship of the President of the Republic of Turkey on 2 January 2017 pursuant to Article 121 of the Turkish Constitution and Article 4 of the State of Emergency Act (Law no. 2935, dated 25 October 1983).

Formation of the Commission

ARTICLE 1- (1)  The Commission on Examination of the State of Emergency Procedures has been established in order to carry out an assessment of, and render a decision on, applications related to acts established directly through the decree-laws, without any other administrative acts being carried out, within the scope of the state of emergency declared under Article 120 of the Turkish Constitution and approved by the Resolution (no. 1116, dated 21 July 2016) issued by the Turkish Grand National Assembly, on the ground of membership of, or have relation, connection or contact with terrorist organizations, or structures/entities, or groups established by the National Security Council as engaging in activities against the national security of the State.

(2) The Commission shall be composed of seven members. Three members shall be assigned  by the Prime Minister from among public officials; one member shall be assigned by the Minister of Justice from among judges and prosecutors who hold office in central organization of the Ministry of Justice and related and affiliated institutions; one member shall be assigned by the Minister of Interior from among personnel held the class of civil administration; and two members shall be assigned by the Supreme Board of Judges and Prosecutors from among seconded judges who hold office in the Court of Cassation or in the Council of State. The Commission shall elect a president and a deputy president from among its members through an election to be held.

(3) The quorum for meetings and decisions of the Commission shall be four members. Members cannot abstain from voting.

Duties of the Commission

ARTICLE 2- (1) The Commission shall carry out an assessment of and render a decision on the following act established directly through the decree-laws under the state of emergency:

a) Dismissal or discharge from the public service, profession or organization being held  office.

b) Dismissal from studentship

c) Closure of associations, foundations, trade unions, federations, confederations, private medical institutions, private schools, foundation higher education institutions, private radio and television institutions, newspapers and periodicals, news agencies, publishing houses and distribution channels.

ç)  Annulment of ranks of retired personnel.

(2) The scope of duty of the Commission shall also contain acts that do not fall within the scope of paragraph 1 and that are directly regulated with respect to the legal status of natural or legal persons by the decree-laws that are brought into force under the state of emergency.

(3) In relation to the acts mentioned this article, no separate application shall be lodged for the additional measures introduced by decree-laws  put into force under the state of emergency and for the acts  subject to judicial review.

Term of Office of the Commission

ARTICLE 3- (1) The Commission shall exercise its functions for a period of two years from the date of the entry into force of this Decree-Law. The Council of Ministers may extend this period for a period of one year per each extension, if deems necessary.

(2) First appointed members of the Commission shall hold office until the expiry of two years. If it is decided that the period should be extended, new members shall be determined in accordance with the procedure set out in paragraph 2 of Article 1. Members who have previously held office may be reassigned.

Guarantees and rights of members

ARTICLE 4- (1) Members cannot be dismissed on any account before their terms of office expire. However, a member shall be dismissed by the Commission, if it is found that;

a) the member fails to attend a total of five Commission meetings within one calendar year, without any reason that could be accepted by the Commission,

b) it is documented by a medical board report that the member is unfit to work due to a serious disease or disability,

c) the conviction pronounced in respect of the member due to offences he/she has committed related to his/her duties becomes final,

ç) the total duration of the member’s temporary unfitness for work lasts more than three months,

d) an investigation or prosecution is initiated against the member for offences listed in Articles 302, 309, 310, 311, 312, 313, 314 and 315 of the Turkish Criminal Code (Law no. 5237, dated 26 September 2004),

e)  an administrative investigation against the member is initiated by the Prime Ministry or a permit for investigation against the member is issued on the ground that the member concerned is a member of, or have relation, connection or contact with terrorist organizations, or structures/entities, or groups established by the National Security Council as engaging in activities against the national security of the State.

New members shall be assigned, in accordance with the procedure set out in paragraph 2 of Article 1, within two months at the latest for membership that becomes vacant due to death, resignation or any other reasons.

(2) Members shall continue to obtain their financial and social rights from their institutions. The Prime Ministry shall separately pay to members each month, as an additional payment, the difference between the total amounts that are paid to members by their institutions in a month pursuant to their financial rights and the amounts to be calculated by multiplying the indicator number of 142,000 by the civil servant’s salary coefficient, without being subject to any tax and deduction, except for the stamp tax, and in proportion to their terms of office.   

(3) Conduct of an investigation against the members of the Commission shall be subject to the permission of the Prime Minister or a Minister assigned by the Prime Minister pursuant to the Law no. 4483 on Prosecution of Civil Servants and Other Public Officials (dated 2 December 1999). The Council of State shall decide on objections filed against a decision granting or not granting permission for investigation.

Power to request information and document

ARTICLE 5- (1) The Commission may request all kinds of information and documents related to its scope of duty from the relevant bodies.

(2) Without prejudice to the provisions of the legislation related to the confidentiality of investigation and the State secrets, public institutions and organizations as well as judicial organs are obliged to submit to the Commission all kinds of information and documents it needs within the scope of its duties, without delay, or to enable them for an on-site examination.

Confidentiality          

ARTICLE 6- (1) Members and those, who are assigned with respect to the Commission works, may not disclose to anyone, except for organs that are legally granted authority on the subject, any confidential information, personal data, trade secrets and the related documents, belonging to the public, to those concerned or to third parties, that they obtain during their performance of their duties, and they may not use them for their own interests or for the interests of third parties. This obligation shall continue to exist after the expiry of their terms of office.

Procedure and Time-limit for Applications

ARTICLE 7- (1) The applications to the Commission shall be lodged through the Governor’s Office. Those, who are dismissed or discharged from public service, profession or organization in which they hold office, may also submit to the last institution in which they hold office. The date on which an application is lodged with the Governor’s Office or the institutions concerned shall be deemed as the date of the application. The Governorships and the institutions concerned shall communicate the applications lodged with them to the Commission without any delay. Repeated applications shall not be put into process.

(2) Provisions of paragraph 2 of Article 10 of the Code of Administrative Procedure (Law no. 2577, dated 6 January 1982) shall not apply to the applications lodged within the scope of this Decree-Law.

(3) The applications which are not lodged within sixty days as from the date of receiving of applications with regard to the decree-laws which entered into force before the date when the Commission starts to receive applications shall not be put into process. For the applications with regard to the decree-laws which enter into force after the date when the Commission starts to receive applications,  those which are not lodged within sixty days as from the date of publication on the Official Gazette of a decree law shall not be put into process, either.

Preliminary examination

ARTICLE 8- (1) The applications lodged with the Commission shall be subject to preliminary examination in terms of compatibility with the requirements sought. Following the preliminary examination, the applications which were not lodged within the prescribed period, in which the applicant has no legal interest in respect of the issue, which do not fall within the scope of this Decree-Law and which do not bear the other procedural requirements shall be dismissed. The procedures and principles concerning the application of this Article shall be determined by the Commission.

Examination and decision

ARTICLE 9- (1) The Commission shall perform its examinations on the basis of the documents in the file. The Commission may, following the examination, dismiss or accept the application.

Execution of the decisions

ARTICLE 10- (1) In case of acceptance of the application concerning those who were dismissed from public service, the decision shall be notified to the State Personnel Presidency. The appointment proposals of the personnel notified in this manner shall be made, within fifteen days, by the State Personnel Presidency, having regard to province they reside in, for the positions appropriate to their former status and titles in the public institutions and organizations apart from the institutions in which they were employed; except for those whose assignments in other institutions are not possible due to their status, titles and the duties they performed. Among those who have been reinstated in the public office under this paragraph, with respect to the appointments of the persons who were dismissed from the public service when they were serving as an administrator, the former cadre and position titles held by them before serving as administrator  shall be taken into account. The cadres and positions regarding the personnel under this head shall be considered as having been established, allocated and endorsed, regardless of the provisions of other laws and without the need for any other action, as from the date of receiving of approvals for appointments concerning the relevant persons by the public institutions and organizations to which appointment proposals were made. The cadres and positions considered as having been established, allocated and endorsed shall be regarded as having been included in the relevant part of the tables annexed to the Decree-Law no. 190 on General Cadre and its Procedure, dated 13 December 1983.

(2) In cases of acceptance of the applications concerning the closed institutions and organizations, the relevant provisions of the decree-law shall be considered null and void along with all of its effects and consequences in respect of the institution and organization in question, as from the publication of the decree-law at issue. The actions thereof shall be performed by the Ministry of Interior, the Ministry of Finance, the Ministry of Health or the Directorate General for Foundations, where relevant.

Judicial Review

ARTICLE 11- (1) The action for annulment against the decisions of the Commission may be filed with the Ankara administrative courts which are identified by the High Council of Judges and Prosecutors.

(2) Those who were considered to be inappropriate to perform their duties and who were dismissed from their duties under Paragraph 1 of Article 3 of the Decree-Law no. 667 of 22 July 2016 on the Measures Taken within the Scope of the State of Emergency and Paragraph 1 of Article 3 of the Law no. 6749 of 18 October 2016 on Amendment and Acknowledgement of the Decree-Law on the Measures ;Taken within the Scope of the State of Emergency, may file an action with the Council of State as the first-instance court, within sixty days as from the date on which the decision becomes final.

Secretariat

ARTICLE 12- (1) The secretariat services of the Commission shall be carried out by the Prime Ministry. A sufficient number of personnel shall be allocated to the Commission for performance of these services.

(2) The Prime Ministry shall make an additional monthly payment to those assigned for the secretariat within the scope of the Commission works, provided that it does not exceed the amount to be calculated by multiplication of (11,000) indicator with monthly coefficient regarding the public officer. Additional payment shall not be subjected to any tax or deduction, except for the stamp tax. The additional payments shall be made in line with the procedures and principles to be set forth by the President of the Commission, regard being had to criteria in payment such as the class, cadre title, manner of appointment of the assigned personnel, the importance and difficulty of their duty and their term of office. No further payment for overtime work shall be disbursed to these personnel under any head.

Procedures and principles

ARTICLE 13- (1) The procedures and principles concerning the applications and the functioning of the Commission shall be set out and announced by the Prime Ministry upon the proposal of the Commission.

Transitional Provisions

PROVISIONAL ARTICLE 1- (1) The first members to be assigned to the Commission shall be selected within a month as from publication of this Article.

(2) Within the scope of this Decree-Law, the date on which the Commission will start to receive the applications shall be announced by the Prime Ministry, not later than six months as from the date of publication of this Article.

(3) With respect to those who previously lodged an application with a judicial authority or filed an action for the matters which fall within the scope of duty of the Commission, the procedure and periods of time set out in Article 7 shall be applied.

(4) Those who were considered to be inappropriate to perform their duties and who were dismissed from their duties pursuant to Paragraph 1 of Article 3 of the Decree-Law no. 667 and Paragraph 1 of Article 3 of the Law no. 6749 prior to entry into force of this Decree-Law, may file an action within sixty days as from the date of entry into force of this Decree-Law, on the basis of the provisions set out in Paragraph 2 of Article 11. In this regard, the cases pending before the administrative courts shall be transferred to the Council of State. The provisions of this paragraph shall apply to the cases which were filed and concluded before the date of entry into force of this Decree-Law.

Enforcement

ARTICLE 14- (1) This Decree-Law shall enter into force on the date of its publication.

Execution

ARTICLE 15- (1) The provisions of this Decree-Law shall be executed by the Council of Ministers.

Judiciary of Turkey