State of Emergency and Turkish Constitutional Court
Ozen Ulgen AdadagAfter the attempted coup d’état in 15 July 2016, the Council of Ministers, chaired by the President declared a state of emergency which was extended seven times and will last until 18 July 2018. During this period, the Council of Ministers, chaired by the President issued thirty-two emergency decrees. This study examines the jurisprudence of the Turkish Constitutional Court on the measures in a state of emergency. In the first part, the decisions of the Constitutional Court on normative control are discussed. The second part focuses on the decisions of the Constitutional Court on individual applications. In both cases, the main problem of the Constitutional Court is to delay the examination of the applications. Therefore, the question of the effectiveness of the Court in emergency period has become controversial.
L’état d’urgence et la Cour Constitutionnelle Turque
Ozen Ulgen AdadagPendant la dernière proclamation de l’état d’urgence, à la suite de la tentative avortée du coup d’État militaire du 15 juillet 2016, le régime d’état d’urgence en Turquie a démontré ses limites et ses insuffisances, au premier rang desquels l’absence d’un contrôle judiciaire effectif. Cet article a pour but d’examiner l’approche de la Cour constitutionnelle turque de l’état d’urgence et analyser en quoi elle constitue ou non une voie effective pour la protection des libertés et l’état de droit durant et après cette période. En se basant sur les deux modes de voies de recours devant le juge constitutionnel, cet article s’articulera autour de deux axes d’analyse : la jurisprudence rendue dans le cadre d’un contrôle normatif a posteriori des normes et celle rendue dans le cadre du recours individuel. On a constaté que le principal problème de la Cour constitutionnelle est de retarder l’examen des requêtes.
Olağanüstü Hâl ve Türk Anayasa Mahkemesi
Ozen Ulgen Adadag15 Temmuz darbe girişiminin ardından, Cumhurbaşkanı başkanlığında toplanan Bakanlar Kurulu, yedi kez uzatılan ve 18 Temmuz 2018’e kadar süren bir olağanüstü hâl ilan etmiştir. Bu süre içerisinde, Cumhurbaşkanı başkanlığında toplanan Bakanlar Kurulu otuziki olağanüstü hâl kanun hükmünde kararnamesi yayımlamıştır. Bu çalışma Anayasa Mahkemesinin olağanüstü hâl tedbirlerine yönelik içtihadını incelemektedir. Birinci kısımda, Anayasa Mahkemesinin norm denetimi sonucunda verdiği kararlar ve özellikle Mahkemenin yerleşmiş içtihadından dönmesinin sonuçları, ikinci kısımda ise bireysel başvurular üzerine verdiği kararlar ele alınmıştır. Her iki durumda, Anayasa Mahkemesinin temel sorununun başvuruları incelemeyi geciktirmesi olduğu tespit edilmiştir. Bu nedenle, olağanüstü hal döneminde Anayasa Mahkemesinin etkililiğinin tartışmalı hale geldiği sonucuna ulaşılmıştır.
After the attempted coup d’état on 15 July 2016, the Council of Ministers, under the chairmanship of the President of the Republic, declared state of emergency which was extended seven times and would last until 18 July 2018, approximately two years. The Turkish constitution distributes the powers of state of emergency between the legislative and the executive with a concentration of power in favor of the latter but excludes effective judicial review thereof. This study examines the case law of the Turkish Constitutional Court (TCC) on the emergency measures and analyzes how it constitutes or not an effective way for protection of rights and freedoms and the rule of law during and after this period. A year after the end of the state of emergency, it may be easier to understand the stance of the TCC on the emergency regime.
In the first part, the decisions of the Constitutional Court on normative control are discussed. During this period, the Council of Ministers, chaired by the President, issued thirty-two emergency decrees. According to the Constitution, executive power was entitled to issue emergency decrees without authorization of the parliament but these decrees should be submitted to the Turkish Grand National Assembly on the same day for approval. There was a time limit for approval (30 days) in the Rules of Procedure of the Assembly, but no consequences were prescribed for non-compliance with this rule. Thus, parliamentary control over emergency decrees was not effective. Moreover, the Constitution (art. 148) excludes the emergency decrees from judicial review by the TCC.
However, before the last state of emergency, the TCC qualified all norms it examined notwithstanding their denominations. According to the TCC, the scope of emergency decrees should be limited with the purpose, region and the duration of the state of emergency proclamation. If they exceeded these limits, they would be qualified as ordinary decrees and be subject to constitutional review. The most important result of this approach was to prevent emergency decrees from amending ordinary legislation. Unfortunately, the TCC departed from its previous case law and ruled that it did not have the authority to control emergency decrees even if they exceeded constitutional limits. The new approach of the TCC may be controversial, but it is only a question of preference in the method of interpretation. The literalistic approach favored by the TCC caused the deterioration of legal order. Within the same emergency decree or statute, some provisions are meant for the ordinary period while others are for the period of emergency, but it is unclear which.
On the other hand, the TCC is entitled to control these decrees if they are approved by Turkish Grand National Assembly and become law. Only five laws approving the emergency decrees were published in the Official Gazette in 2016. Most of the remaining approval laws were published in the Official Gazette on 8 March 2018. By its inaction or omission, whether intentional or not, the Parliament merely delayed the constitutional review of the measures taken by emergency decrees. Since Turkish law does not impose any procedural time limit on constitutional judges to examine and decide on actions for annulment, the Court remained silent for a long time. One year after the end of the state of emergency, in July 2019, the TCC examined five of the submitted laws and annulled some of their dispositions. However, two months later, none of these judgments were published in the Official Gazette.
The second part focuses on the judgments of the Constitutional Court on individual applications. According to the Constitution, “everyone may apply to the Constitutional Court on the grounds that one of the fundamental rights and freedoms within the scope of the ECHR which are guaranteed by the Constitution has been violated by public authorities. In order to make an application, ordinary legal remedies must be exhausted.” As an ordinary remedy, a new ad hoc administrative commission was created by emergency decree no. 685 of 2 January 2017. Although this Commission issued its first decision on 22 December 2017, the TCC, as early as July 2017, rejected all applications lodged directly before it on the ground that the applicants had not exhausted ordinary remedies. Thus, according to statistics, 86 percent of the individual applications lodged during the state of emergency were examined by the TCC. Lastly, judgments of the TCC in individual applications are analyzed in comparison with the case law of the ECtHR as to their timing and content.
In both legal remedies, the main problem of the Constitutional Court was delaying the examination of the applications. Therefore, the question of the effectiveness of the Court during emergency period has become controversial.
