Turkish Constitutional Court upholds the impunity provisions introduced with emergency decrees

 

Impunity provisions enacted with Decree Law nos. 667, 668, 696

During the state of emergency rule between 2016 and 2018, the Turkish Government enacted thirty-two emergency decrees which were later approved by the Turkish Parliament and have become ordinary laws. Decree Law nos. 667, 668, and 696 have provided for impunity clauses for public servants and civilians for any acts committed with the aim of suppressing the coup attempt and the terrorist activities that took place on July 15, 2016 and actions that can be deemed as the continuation of these.

Decree Law no. 667: Liability, Article 9 – (1) Legal, administrative, financial and criminal liabilities shall not arise in respect of the persons who have adopted decisions and fulfil their duties within the scope of this Decree Law.

Decree Law no. 668: Liability, Article 37- (1) Legal, administrative, financial and criminal liabilities of the persons who have adopted decisions and executed decisions or measures with a view to suppressing the coup attempt and terrorist actions performed on 15/7/2016 and the ensuing actions, who have taken office within the scope of all kinds of judicial and administrative measures and who have adopted decisions and fulfilled relevant duties within the scope of the decree laws promulgated during the period of state of emergency shall not arise from such decisions taken, duties and acts performed.

(2) (Added with Decree Law no. 696, Article 121) Provisions of paragraph 1 shall also be applicable to those individuals who acted with the aim of suppressing the coup attempt and the terrorist activities that took place on July 15, 2016 and actions that can be deemed as the continuation of these, without having regard to whether they held an official title or were performing an official duty or not.”

Decree Law nos. 667, 668, and 696 have provided for immunity for the public servants and civilians who acted with the aim of suppressing the coup attempt and the terrorist activities that took place on July 15, 2016 and actions that can be deemed as the continuation of these. Under these provisions, public prosecutors have given non-prosecution decisions on criminal complaints that were filed for alleged murder and torture incidents. (See) (See)

The very first Emergency Decree (no. 667, Art. 9§1) stipulated that “legal, administrative, financial and criminal liabilities shall not arise in respect of the persons who have adopted decisions and who fulfill their duties within the scope of this Decree Law”. Emergency Decree no. 668 (Art. 37) has further expanded this principle of impunity, specifying that there will be no criminal, legal, administrative or financial responsibility for those making decisions, implementing actions or measures, or assuming duties as per judiciary or administrative measures for suppressing coup attempts or terror incidents, as well as individuals taking decisions or fulfilling duties as per State of Emergency Executive Decrees. By Emergency Decree no. 696 (Art. 121), the impunity provided to public servants under Emergency Decrees nos. 667-668, was also extended to civilians. More precisely, it was stipulated that those civilians acting to suppress the coup attempt of 15/7/2016 and the ensuing events will have no legal, administrative, financial or criminal responsibility. What is more, all these three decrees were approved by the TGNA and have become ordinary laws (Law Nos. 6749, 6755 and 7079). Under these provisions, public prosecutors have given non-prosecution decisions on criminal complaints that were filed for alleged murder and torture incidents. The Trabzon Prosecutorial Office thus gave a non-prosecution decision under Article 9 of Emergency Decree no. 667 regarding a complaint filed by an alleged torture victim. Likewise, the Istanbul Prosecutorial Office gave a non-prosecution decision on a complaint that was filed by the family members of a military cadet who was tortured and murdered by civilians during the coup attempt. (See: Did Turkey’s Recent Emergency Decrees Derogate from the Absolute Rights?

Turkish Constitutional Court (TCC) upholds the impunity provisions

In two separate judgments, TCC upheld these provisions which have resulted in a de facto derogation of the right to life, and to the prohibition of torture, which is clearly illegal under the Constitution, the ICCPR and the ECHR.

In a judgment (Docket No: 2018/31, Decision No: 2020/38) published on the Official Gazette on 11 November 2020, the TCC concluded that impunity provision which provides for criminal, civil and administrative immunity to the civilians who committed crimes during acting against the botched coup of 2016 did not breach the Constitution.

Similarly, TCC previously upheld (Docket No: 2016/205, Decision No: 2019/63) the provision that ‘Legal, administrative, financial and criminal liabilities shall not arise in respect of the persons who have adopted decisions and fulfil their duties within the scope of this Decree Law.’ TCC said such impunity clauses were necessary to encourage the public servants so they could perform their duties effectively to overcome the threats arose out of the state of emergency.

Both actions for annulments had been filed by the Main Opposition Party, CHP.


Related: Joint Report | Impunity: An Unchanging Rule in Turkey



Categories: Torture and Impunity

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