Procedures and Principles Regarding the Functioning of the Commission on Examination of the State of Emergency Procedures 14.07.2017

PROCEDURES AND PRINCIPLES REGARDING THE FUNCTIONING OF THE COMMISSION ON EXAMINATION OF THE STATE OF EMERGENCY PROCEDURES

 

Purpose and scope

ARTICLE 1 – (1) The purpose of these Procedures and Principles is to regulate the issues regarding the applications submitted to the Commission on Examination of the State of Emergency Procedures and the works of the Commission.

(2) These procedures and principles shall include the issues regarding the examination of the applications submitted to the Commission and the functioning of the Commission in accordance with the Decree Law No. 685 dated 2 January 2017 on the Establishment of a Commission on Examination of the State of Emergency Procedures.

 

Grounds

ARTICLE 2 – (1) These Procedures and Principles have been laid down by taking Article 13 of the Decree Law No. 685 as basis.

 

Duties of the Commission

ARTICLE 3 – (1) The Commission shall make assessments and take decisions on the applications regarding the following procedures stipulated directly by decree laws under the state of emergency:

a) Discharge of a person from public office, a profession or an organization in which he/she serves or severance of his/her connection with such.

b) Severance of the connection of a person with studentship.

c) Closure of associations, foundations, unions, federations and confederations, private healthcare organizations, private educational institutions, foundation higher education institutions, private radio and television outlets, newspapers and magazines, news agencies, publishing houses and distribution channels.

ç) Degrading of retired personnel.

(2) The procedures which are directly regulated by the decree laws put into force under the state of emergency, with regard to the legal status of real or legal persons and which do not fall within the scope of the first paragraph shall be also within the remit of the Commission.

(3) No application shall be made separately in terms of additional measures provided in the decree laws put into force under the state of emergency, depending on the procedures stated in this article, and the procedures, against which legal remedy is possible.

 

Applicants

ARTICLE 4 – (1) Those who are discharged from public office, a profession or an organization in which they serve or whose connection with such is severed, those whose connection is severed with studentship and the retired personnel who is degraded shall be entitled to submit an application personally, through their legal representative or attorney.

(2) Those who are authorized by law to represent a closed institution or organization shall be entitled to submit an application on behalf of the closed institution or organization, as of the date of closure. Those who are not authorized shall not submit an application on grounds of membership or any other grounds.

(3) In the applications made through a legal representative or an attorney, if the certificate of representation or the warrant of attorney becomes invalid during the examination process, this shall not prevent the application from being examined and concluded.

(4) In cases where the applicant dies while the examination of the application is ongoing, the present application shall be examined and concluded without need for a new application by the legal inheritors of the relevant person.

(5) In cases where the person who is entitled to make an application dies before the period of application commences or ends, one of his/her legal inheritors shall be entitled to file an application within sixty days as of the date of death, on condition that the certificate of inheritance is submitted.

 

Application period

ARTICLE 5 – (1) The period of application to the Commission shall be sixty days;

a) as of the date the applications start to be received with respect to the procedures stipulated in the decree laws put into force before the date the Commission starts to receive the applications,

b) as of the date of publication of the relevant decree law on the Official Gazette with respect to the procedures stipulated in the decree laws to be put into force after the date the Commission starts to receive the applications.

(2) The date of application shall be deemed as the date the application is filed to a governorate or an institution. For  persons who are detained or convicted in penal execution institutions and detention centres, the date of application shall be the date the application is filed to the directorate of the institution.

 

Application procedure

ARTICLE 6 – (1) The applications shall be submitted in writing, to a governorate or to the last institution in which the applicant served, together with their annexes, if any, by filling out the application form published on the website "https://ohalkomisyonu.basbakanlik.gov.tr" formed by the Commission and included in the annexes 1 and 2 of these Procedures and Principles and by signing the printed form.

(2) No direct application shall be filed to the Commission. No procedure or examination shall be carried out for such applications.

(3) Detainees and convicts in penal execution institutions and detention centres shall manually fill out the form annexed to these Procedures and Principles and hand it in to the official in charge in the institution in which they are kept. The relevant public official shall fill out the form published on the website, taking the filled form as basis, shall have the applicant sign the printed form and submit it to the directorate of the institution. The directorate of the institution shall complete the necessary procedures, shall give a proof of receipt to the applicant and send the Commission the application form and, if any, the petition and its annexes, through the Office of Chief Public Prosecutor to which it reports to. 

(4) The governorates and relevant institutions shall send the application document to the Commission without delay.

(5) The provisions of the second paragraph of Article 10 of the Law No. 2577 dated 6 January 1982 on the Procedure of Administrative Justice shall not apply for the applications filed within the scope of these Procedures and Principles.

(6) The other issues regarding the applications shall be laid down and announced by the Commission.

 

Application form

ARTICLE 7 – (1) The application form shall be filled out electronically. The form shall be printed, signed by the applicant, his/her legal representative or attorney and submitted to the relevant governorate or institution, together with its annexes.

(2) The following issues shall be included in the application form, with respect to real persons:

a) The name and surname, the identity number, the date and place of birth, the address and, if any, the telephone number and the e-mail address of the applicant.

b) In the applications submitted by a legal representative or attorney, the name and surname, the identity number, the date and place of birth, the address and, if any, the telephone number and the e-mail address of the legal representative or the attorney.

c) The last institution in which the applicant served, his/her registration number and title.

ç) In respect of persons whose connection has been severed with studentship, the last educational institution in which they were enrolled and their student numbers or registration numbers.

d) The number and date of the decree law by which a procedure was carried out with respect to the applicant and the list including the name of the applicant and the item number of the applicant in the list.

e) The statements of the applicant or of his/her legal representative or attorney with respect to the application.

f) The signature of the applicant or his/her legal representative or attorney.

(3) The following issues shall be included in the application form, with respect to institutions or organizations.

a) The name, the title, the MERSIS (central registration system) number, the tax identification number, the registration number of the institution or organization, the institutional code for private educational institutions, the register number for associations, the central register number for foundations, the address and, if any, the telephone number and the e-mail address. 

b) In the applications submitted by a legal representative or attorney, the name and surname, the identity number, the date and place of birth, the address and, if any, the telephone number and the e-mail address of the legal representative or attorney.

c) In cases where the owner of the closed institution or organization is a real person, the name and surname, the identity number of such person and, if any, the title of the legal person to which this institution or organization reports to, the tax identification number, the MERSIS number or the register number.

ç) The number and date of the decree law by which a procedure was carried out with respect to the institution or organization and the list including the name of the relevant institution and organization and the item number of the relevant institution and organization in the list.

d) The statements of the legal representative or attorney applying on behalf of the institution or organization, with respect to the application.

e) The signatures of the legal representative or attorney applying on behalf of the institution or organization.

(4) If any, other applications previously submitted to judicial or administrative authorities shall also be indicated in the application form.

 

Information and documents required in the application

ARTICLE 8 – (1) It shall be obligatory to submit the following information and documents in the applications filed against the procedures regarding those who are discharged from public office, a profession or an organization in which they serve or whose connection with such is severed, those whose connection is served with studentship and the retired personnel who is degraded.

a) The application form for real persons. (Annex-1)

b) The copy of the identity card of the applicant.

c) If the application is filed by a legal representative or an attorney, the copy of the certificate of representation or of the warrant of attorney.

ç) If any, the original copy of the documents submitted in the application or the copy approved by a notary public or the relevant public institution or organization.

(2) It shall be obligatory to submit the following information and documents in the applications filed against the procedures regarding the closed institutions or organizations:

a) The application form for institutions or organizations (Annex-2)

b) The copy of the identity card of the person applying on behalf of the institution or organization.

c) The approved copy of the decision, the circular of signature, the letter of attorney or of other official documents stating that the person applying on behalf of the institution or organization is legally authorized to represent the institution or organization as of the date of closure. 

ç) If any, the original copy of the documents submitted in the application or the copy approved by a notary public or the relevant public institution or organization.

(3) The statements written under the section "Applicant's Petition" in the application form shall be prepared to be legible and to include concise information on the application. In cases where the statements written in the form take more than ten pages, an additional petition including the summary of the events should be added to the application form.

(4) The governorate or institution receiving the application shall check whether the application forms have been filled out completely and whether the necessary documents have been attached. In cases where it is established that the application form and the documents submitted in the application are not complete, the relevant governorate or institution shall give a definite period of fifteen days to the applicant in order to complete the form or documents. After the form or the documents are completed, the documents shall be submitted to the Commission.

(5) A proof of receipt showing that the application has been received shall be given to the applicant. (Annex-3)

 

Registration and filing

ARTICLE 9 – (1) Each application submitted to the Commission shall be given a date and a number.

(2) Each application shall be registered with a file number pertaining to it. The information and documents sent by the relevant institutions to the Commission and other documents regarding the examination of the application shall be registered in the file to which they are pertaining.

(3) The applications previously submitted to the institutions with respect to the files arriving in the Commission shall be joined.

 

Preliminary examination

ARTICLE 10 – (1) The applications shall be subject to preliminary examination in terms of compliance with the requirements stipulated in these Procedures and Principles and the Decree Law No. 685.

(2) Preliminary examination shall be carried out by the personnel assigned as rapporteur by the President.

(3) In case of establishment of one of the situations indicated below as a result of the preliminary examination, the application shall be rejected by the Commission:

a) The application does not fall within the remit of the Commission.

b) The application is not duly made.

c) The application is not made in writing, personally or by a legal representative or an attorney.

ç) The application is made by those who are not legally authorized to represent the institutions or organizations, on grounds of membership or on other grounds.

d) The applicant has no legal interest.

e) The application is about the procedures which have not been carried out directly by the decree laws put into force under the state of emergency.

f) The application is about the additional measures such as the seizure of the gun license or the cancellation of the passport of the relevant person whose name is included in the decree laws put into force under the state of emergency and the eviction of such from public houses or foundation lodgements.

g) The subject of the application is about the procedures against which legal remedy is possible.

ğ) The application has not been made in accordance with the other requirements.

(4) In cases where the issues enumerated in the third paragraph are established after the preliminary examination, it shall be decided to reject the application.

 

Completion

ARTICLE 11 – (1) In cases where it is established that the application form and the documents submitted during the application are not complete, the situation shall be notified to the governorate or institution receiving the application. The relevant governorate or institution shall give a definite period of fifteen days for the completion of the form or the documents. After the form and the documents are completed, the documents shall be sent to the Commission. In cases where the form or the documents are not completed within the given period of time, the situation shall be notified to the Commission. The date of application shall be deemed as the date of the first application filed to the governorate or institution.

 

Authorization to request information and documents

ARTICLE 12 – (1) The Commission may request information, documents, findings, facts and convictions regarding the discharge of a person from public office, a profession or an organization in which he/she serves or the severance of his/her connection with such, or the severance of the connection of a person with studentship or the degrading of a retired personnel, from the last Ministry or institution in which the relevant person served.

(2) Information, documents, findings,  facts and convictions regarding the closed institutions and organizations may be requested;

a) from the Ministry of Interiors, in respect of closed associations,

b) from the Ministry to which the Directorate General of Foundations reports, in respect of foundations,

c) from the Ministry of National Education, in respect of foundation higher education institutions and private educational institutions, private student dormitories and student hostels,

ç) from the Ministry of Labour and Social Security, in respect of unions, federations and confederations,

d) from the Ministry of Health, in respect of private healthcare organizations,

e) from the Ministry with which the Supreme Council of Radio and Television is in connection, in respect of radio and television outlets,

f) from the Ministry to which the Directorate General of Press and Information reports to, in respect of closed newspapers, magazines, publishing houses, distribution channels and news agencies.

(3) Provided that the legislation provisions regarding the confidentiality of the investigation and state secrets are reserved, public institutions and organizations and judicial authorities shall be obliged to send the Commission any kind of information and documents required within the scope of the duties of the Commission, within the given period of time or to enable such information and documents to be examined on the spot upon the decision of the Commission.

(4) The institutions and authorities in this article shall send the Commission any information and document, including those of the nature of intelligence, which constitutes a ground for the conviction that the applicants are members of, affiliated with, related to or connected with terror organizations or any structure, entity or group that the National Security Council has deemed to act contrary to the national security of the State, within the given period of time, upon request and together with  an official letter.

 

Meeting procedure and voting

ARTICLE 13 – (1) The procedures shall be examined and concluded in the Commission meeting, in the order stipulated on the agenda.

(2) The President of the Commission shall allow those who wish to speak to express their views. Open voting shall be held after the meeting ends.

(3) The quorum of meeting and of decision shall be four. No one shall abstain from voting.

(4) The President of the Commission shall take necessary measures which will ensure that the meeting will be held and concluded in a certain order and discipline.

 

Examination in essence and decision

ARTICLE 14 – (1) The Commission shall examine the file and decide to reject or approve the application.

(2) The Commission shall conduct the examination with respect to the membership, affiliation, relation or connection of persons with terror organizations or any structures, entities or groups which the National Security Council has deemed to act contrary to the national security of the State.

(3) The requests to testify orally or call witness shall not be taken into consideration.

 

Notification of decisions and transfer of files

ARTICLE 15 – (1) The following procedures and principles shall be applied in the notification of the Commission decisions and in the transfer of files.

a) The decisions on the approval of the application regarding those who are dismissed from public office, a profession or an organization in which they serve or those whose connection with such is severed shall be notified to the State Personnel Department.

b) The decisions on the approval of the application regarding those whose connection is severed with studentship shall be notified to the Ministry of National Education.

c) The decisions on the approval of the application regarding the retired personnel who is degraded shall be notified to the last institution in which the relevant person served.

ç) The decisions on the approval of the application regarding the closed institutions or organizations shall be notified to the relevant Ministry or institution.

(2) The Commission shall transfer the files regarding the applications it has concluded to the institutions and organizations enumerated below:

a) The last institution or organization in which the relevant person served, in respect of those who are discharged from public office, a profession or an organization in which they serve or whose connection with such is severed and for degraded retired personnel.

b) The Ministry of National Defence, in respect of those who are discharged from the Turkish Armed forces, including public officials and workers.

c) The Ministry of Interiors, in respect of those who are discharged from the organizations of the General Command of Gendarmerie, the Directorate General of Security and the Coast Guard Command.

ç) The Ministry of National Education, in respect of those whose connection is severed with studentship.

d) The Ministry of Interiors, in respect of closed associations.

e) The Directorate General of Foundations, in respect of closed foundations.

f) The Ministry of Labour and Social Security, in respect of closed unions, federations and confederations.

g) The Ministry of Health, in respect of closed private healthcare organizations.

ğ) The Ministry of National Education, in respect of closed foundation higher education institutions, private educational institutions, private student dormitories and student hostels.

h) The Supreme Council of Radio and Television, in respect of closed private radio and television outlets.

ı) The Directorate General of Press and Information, in respect of closed newspapers, magazines, publishing houses, distribution channels and news agencies.

i) The Ministry of Interiors, in respect of the personnel of security forces who has been obliged to become retired ex officio, has retired on his/her own will, has been discharged from profession or  public service or has been deemed resigned in accordance with the provisions of the Disciplinary Code of Security Forces and who has then been degraded.

(3) The Commission decisions on the approval or rejection of the application shall be delivered, by the institutions to which the file has been transferred, to the address notified by the applicant, in accordance with the provisions of the Notification Law No. 7201 dated 12 February 1959.

 

Legal remedy

ARTICLE 16 – (1) An action for annulment may be brought before Ankara administrative courts to be designated by the Council of Judges and Prosecutors, against the decisions of the Commission, to the detriment of the institutions or organizations stated in Article 11 and Additional Article 1 of the Decree Law No. 685, within sixty days as of the notification of the decision. In such cases, no hostility shall be expressed additionally for the Prime Ministry and the Commission.

 

Assignment of personnel, secretariat and offices

ARTICLE 17 – (1) An adequate number of personnel shall be assigned by the Prime Ministry for the Commission works. Such personnel shall serve under the supervision and control of the President of the Commission.

(2) Rapporteurs and those who will provide secretariat services shall be assigned by the President of the Commission, from among the personnel.

(3) The necessary offices shall be formed by the President of the Commission.

(4) The work division and distribution of duties among the offices and the personnel shall be carried out by the President of the Commission. 

 

Use of information systems

ARTICLE 18 – (1) In the procedures falling into the remit of the Commission, any kind of data, information and document flow and documentation procedures, and any kind of recording, filing and storing procedures regarding such, and any kind of procedures to be performed with the external departments with which harmony and cooperation has been secured may be carried out electronically.

 

Applications to be submitted by institutions to the Commission

PROVISIONAL ARTICLE 1 – (1) With regard to the applications made before the date of publication of these Procedures and Principles, after the expiry of the period in which applications are received by the Commission, the institutions to which any application was previously made shall send the Commission the petition of the previous application and its annexes, the name of the last institution in which the relevant person served, the name and surname of the applicant, his/her identity number and the list including the number of the decree law, by which the procedure was performed.

(2) In cases where the same person files a new application on the matters falling within the scope of the Decree Law No. 685 within the sixty-day period of application announced by the Prime Ministry according to these Procedures and Principles, the application petition and its annexes submitted by the institutions to the Commission shall be joined with this application and shall be examined. In cases where no new application is made, the application which was previously made to the institutions shall be put in process by the Commission.

(3) The petitions filed to the institutions by those who do not have the right of petition under Article 4 of these Procedures and Principles shall not be sent to the Commission.

(4) The applications made to the institutions before the date of publication of these Procedures and Principles shall also be subject to preliminary examination in respect of the terms set out in Article 10.

(5) The date the Commission will start receiving the applications shall be announced by the Prime Ministry.

 

Applications to be submitted by judicial authorities to the Commission

PROVISIONAL ARTICLE 2 – (1) In cases where an application was made or an action was brought previously before any judicial authority on the matters falling within the remit of the Commission, a final decision shall be taken through the file, stating that there is no need for judicial authorities to take a decision on these files and that the expenses incurred by the parties are to be paid by themselves and no decision shall be taken in respect of the counsel's fee. These files shall be sent to the Commission after the expiry of the period in which the applications are received by the judicial authorities under these Procedures and Principles. In cases where the same person files a new application, the file sent shall be joined with this application.

 

Entry into force

ARTICLE 19 – (1) These Procedures and Principles shall enter into force on the date of their publication.

 

Enforcement

ARTICLE 20 – (1) These Procedures and Principles shall be enforced by the Prime Minister.

Judiciary of Turkey