Conclusion

Following the coup attempt of July 15, 2016 a total of 37 State of Emergency executive decrees were issued: The first one was the Executive Decree 667 published on the Official Gazette dated July 23, 2016 and the last one was the Executive Decree 703 published on the Official Gazette dated July 8, 2018.

These executive decrees have defined a new offense, dismissing over one hundred thousand public employees, closing down hundreds of companies, associations, foundations, trade unions, universities, schools, hospitals, TV channels and newspapers, and confiscating the assets of these entities, for membership, connections or links to terror organizations or to structures, formations or groups considered by the National Security Council to engage in actions against national security. State of Emergency executive decrees, not only took measures to limit fundamental freedoms and rights, but also made important and permanent changes to numerous laws.

A large portion of the amendments made via State of Emergency executive decrees concern defense and security. These amendments restructure military - civilian relations, ending or sharply restricting certain powers granted by various laws to the General Staff, Force Commands and other military institutions, and concentrating these powers in the hands of the Ministry of National Defense, Ministry of Interior, Prime Minister’s Office and President’s Office. As indicated by other commentators, these amendments, together with the constitutional changes of the year 2017, are designed to establish the President’s monopoly of control over military forces. For instance Metin Gürcan1 has described this process as “monopolistic civilianization”, that is, “an approach that favors the concentration of power in one civilian / elected position (the president of state)”. As such, it is not possible to talk about a democratic civilianization process where the powers of supervision and control are distributed among the civilian actors (such as the President, government, parliament, NGOs). Ümit Cizre2 also defines the current approach as “a single party control model”.

One of the most important changes in this field is the subordination of the Land, Naval and Air Force Commands to the Minister of National Defense. On the other hand, the President and Prime Minister have been granted the power to give direct orders to force commanders. Ministry of National Defense’s organization structure has been separated from those of the General Staff and Turkish Armed Forces. With various measures and amendments, the military schools were closed down and military education has been entrusted to the National Defense University placed under the authority and control of the Ministry of National Defense. Supreme Military Council’s membership structure has been changed to include the Ministers of Justice, Foreign Affairs and Interior, and to exclude the army commanders, General Commander of the Gendermarie, Commander of the Navy and other four-star generals and admirals of the Armed Forces. As such, civilians have come to control the Council. The meeting frequency of the Supreme Military Council has been reduced. The authority and influence of the Chief of General Staff and Deputy Chief of General Staff have been restricted, while those of the Prime Minister and Minister of National Defense have been expanded. : Executive Decree 703, which was the last executive decree, abrogated Law no. 1612 on the Structure and Duties of the Supreme Military Council. Changes have been made in the two important institutions of defense industry, giving the President a determining role or significantly strengthening his hand. Undersecretariat of Defense Industry, which used to report to the Ministry of National Defense, has been subordinated to the President and important powers have been granted to the President in this respect. Turkish Armed Forces Foundation will now be run by a board of trustees chaired by the President. In military justice, the Law of Military Judges, Law of Military Court of Appeals, and Law of Military High Administrative Court have been abrogated. These were indeed a natural result of the abrogation of the Military Court of Appeals, Military High Administrative Court, and other military courts with the Referendum on the Revision of the Constitution dated April 16, 2017. The judges serving in these courts have been transferred to the Ministry of National Defense. Changes to the Law on Turkish Armed Forces Internal Service have enhanced the authority of civilian superiors, granting them the power to impose disciplinary sanctions.

Gendarmerie General Command and Coast Guard Command have been redefined as no longer a military or security force, but a law enforcement force, and have been subordinated to the Ministry of Interior. Their ties to the Turkish Armed Forces and General Staff have been either completely severed, or limited to military mobilization and war. Gendarmerie and Coast Guard Academy has been established under Ministry of Interior in order to meet the military education requirements of the Gendarmerie General Command and Coast Guard Command personnel.

It is no longer necessary to have served as force commander in order to become Chief of General Staff. The Chief of General Staff has been redefined as the commander of Turkish Armed Forces in war (that is, not in peace). The boundaries of the General Staff’s structure, foundation, and staff positions have been redrawn, making it incapable of controlling the entire Turkish Armed Forces. First, the Chief of General Staff’s duties, powers and responsibilities were radically restricted, and later some of these were returned, without limiting those of the Ministry of National Defense. However, amendments limited the powers of the Chief of General Staff, from the appointment of the force commanders right down to the approval of overseas leaves of commissioned and noncommissioned officers. The force commanders also saw their powers limited. These powers were shifted to the Ministry of National Defense, or in cases of the Gendarmerie General Command and Coast Guard Command to the Ministry of Interior. Executive Decree 703, the last executive decree, abrogated Law no. 1324 on the Duties and Powers of the Chief of General Staff.

Training hospitals of the Gülhane Military Medical Academy, and all other military health institutions have been transferred to the Ministry of Health. The higher education units of the Gülhane Military Medical Academy have been transferred to the Health Sciences University under the Ministry of Health.

In order to overcome the huge lack of personnel resulting from mass dismissals from the Turkish Armed Forces and to meet the demand for personnel owing to the restructuring, facilitating measures have been taken as regards personnel procurement, terms of office and age limits, etc. Furthermore, special amendments have been made to recruit new pilots, paratroopers, submarine personnel etc.

In another important amendment, the National Intelligence Service, now reporting directly to the President, has been authorized to conduct the security investigations of the personnel of Ministry of National Defense, affiliated agencies and institutions, as well as military personnel in or outside troop duty.

As for developments in the field of security, since telecoms, Internet, and technical and immediate intelligence are seen as strategically important fields, amendments have been made to strengthen the control on these areas. Presidency of Telecoms and Communication (TİB) was closed down, and Information and Communication Technologies Authority (BTİK) has been set up as the sole authority in this field. In recruitments to the Police Special Operations Department, candidates now have to go through a physical aptitude exam and interview, instead of the KPSS exam. The Police Special Operations Department has been redefined as a separate department within the central state organization. The scope of passport suspension via administrative decisions has been expanded, while the duty of issuing passports, driver’s licenses etc. has been shifted from the General Directorate of Security to the General Directorate of Population and Citizenship Affairs. Ministry of Interior has been given the power to establish its overseas organization. Requirements for becoming a private security guard have been tightened, and it became possible to conduct security investigations and archive checks at any time. A total of 14,500 new neighborhood and marketplace guard positions have been opened.

National Intelligence Service, which has a crucial place in the state’s security apparatus, has been subordinated directly to the President with an executive decree after the 2017 referendum, without waiting for the presidential elections of 2019. The Prime Minister’s powers in this context have been transferred to the President. The Organization has been restructured so as to weaken its ties to the military.

Following the constitutional amendments of the April 16, 2017 referendum, Turkey transitioned to a type of presidential regime called “Presidential Government System”. Recep Tayyip Erdoğan was elected the first President of this new system on June 24, 2018, and took office with the inauguration ceremony dated July 9, 2018. The State of Emergency ended on July 19, 2018. Executive Decrees issued just before the State of Emergency ended aligned the legislative corpus with the Presidential Government System by amending thousands of articles to transfer the authorities previously granted to the Council of Ministers and Prime Minister to the President. Among these are the Law on Turkish Armed Forces Personnel, Law on Coast Guard Command, and Law on the Police Force. The twelve presidential executive decrees issued in the ten-day period between the inauguration of the President and the termination of the State of Emergency, based on the powers granted by the new system, introduced radical changes to the entire public administration structure. The presidential executive decrees that we take up in the final section of the report also introduced dramatic changes to the field of defense. Some of these changes simply confirm the alterations already made by the State of Emergency executive decrees, while others introduced brand new amendments. Accordingly, in the field of defense, General Staff and Force Commands were subordinated to the Ministry of National Defense and the President was granted the authority -whenever he deems necessary- to receive direct information from and give direct orders to the Chief of General Staff, Force Commanders and their subordinates -and the said orders are to be implemented without the approval of any other post. National Security Council General Secretariat, National Intelligence Organization and Directorate of Defense Industry were subordinated directly to the President’s Office. Amendments concerning the promotions and appointments of Turkish Armed Forces personnel gave critical authorities to the President as regards the appointment of the senior level personnel. The Supreme Military Council’s sphere of activity was limited to designating and revising the military concept, and more weight was given to the civilians with the addition of more ministers to the Council. It was stipulated that the Council shall be chaired by the Vice President, and when he deems necessary, by the President himself.

State of Emergency executive decrees have also made structural changes in the judiciary system, affecting the defendant’s right to due process in criminal justice, personal rights and freedoms, and the privacy of personal life. It has become easier to interfere with a series of rights protected by the Constitution as well as the international agreements signed by Turkey: For instance, the periods of detention and custody were extended; the public prosecutors’ power to decide on investigative measures such as search, confiscation and tracking have been expanded, and the judiciary control over these powers has been limited; the right to adjudication with hearing, the right to representation by attorney, and the principle of equality of arms in justice have been restricted. Prohibition of suspensions of execution for measures under the scope of State of Emergency executive decrees, the impunity for public officials who take decisions in the scope of executive decrees, and impossibility of judicial appeal against state of emergency measures such as dismissal from public office have all sharply limited the freedom to defend one’s rights, making it harder to hold public officials accountable for State of Emergency measures, and almost creating an aegis of impunity around these measures. The cassation review and various other methods of appeal have been redefined; the procedures for the investigation and prosecution of governors, district governors, MPs, judges and prosecutors have been changed radically. As such, the amendments thus passed have limited individuals’ basic rights and freedoms in a disproportionate way, and have seriously impacted the functioning of the judiciary system and judiciary guarantees.

As for the media, the regulatory authority, namely Radio and Television Supreme Council has been granted the power to impose temporary, and under certain conditions permanent broadcast bans, thereby enhancing Radio and Television Supreme Council’s control over media outlets. Furthermore a new rule has been introduced as regards the media coverage of terror attacks, stipulating that such coverage should not lead to “consequences that serve the purposes of terror.” The ambiguity of this expression will certainly have a deterrent effect on journalists covering political issues. Radio and Television Supreme Council has also been granted an almost unlimited discretionary power for rejecting the license applications of media outlets, for national security and public order concerns. These amendments introduce disproportionate sanctions that could create immense pressure on media outlets, that could extend even beyond the State of Emergency. Another amendment via executive decree removed Supreme Election Board’s power to supervise and punish those media outlets that breach its general principles and objective broadcasting criteria, thus granting impunity to unjust and biased broadcasts during elections. The most recently published Executive Decree 703 brought Turkey Radio and Television Corporation (TRT) under the authority of the President.

During the State of Emergency, various executive decrees have been issued touching upon corporate activities, banking sector, employment, investments and other economic issues. Over one thousand companies and commercial enterprises have been confiscated by the state until date, and important amendments have been made concerning the control of their revenues and their liquidation. The scope of the Turkey Wealth Fund’s resources and finances has been expanded with executive decrees. Postponement of bankruptcy applications were banned during the State of Emergency, in an attempt to delay ongoing economic problems. With various executive decrees, the Unemployment Insurance Fund continued to be used outside of its scope, with a view to providing support to employers. A number of measures were taken with executive decrees to boost the construction sector, which has been losing steam.

State of Emergency executive decrees have also introduced comprehensive changes in social security and social policy. Radical amendments have been made to the social rights of security personnel, village guards and village mukhtars. The scope of strike bans has been expanded; it became possible to postpone a strike for economic reasons and for protecting “financial stability”. Dramatic changes have also been made in the management and functioning of public hospitals.

Provisions concerning education have further strengthened the state’s control and supervision over especially private education institutions and student dorms. The government assigned a special role to Turkey Maarif Foundation in the restructuring of education, by granting it new powers and authorities. On the other hand, a number of amendments were passed to limit the rights and freedoms of national education and higher education employees. In addition to these, significant powers were granted to Higher Education Council and the President’s Office as regards faculty members’ annual leaves, overseas trips, and disciplinary investigations, further restricting the autonomy of universities. It has been stipulated that university presidents shall be appointed directly by the President in state and foundation-owned universities, and that in foundation-owned universities, the candidates shall be nominated by the board of trustees.

All these permanent and structural legal measures, which are unrelated to ‘the restoration of public order’ that was the pretext of the declaration of State of Emergency after the July 15, 2016 coup, have transformed the legal and administrative regime radically. Such that, large swathes of the public space, such as education, justice, internal security, national defense, economy, heath, social security and public personnel regime have started being regulated and managed via State of Emergency executive decrees, issued by the government which now has a de facto monopoly on legislative power.

However, the Constitution’s Article 121 (3) grants the Council of Ministers chaired by the President to issue executive decrees only in “issues necessitated by the State of Emergency” and only “during the State of Emergency”. Furthermore, as a rule, the State of Emergency measures and provisions are limited to the duration of the State of Emergency. Once the State of Emergency is over, these measures must be abrogated, since the reasons prompting the declaration of State of Emergency cease to exist. In the past, the Constitutional Court ruled that, although the Constitution prohibits the judiciary control of State of Emergency executive decrees on certain issues, annulment actions can be brought against the decrees according to certain criteria. According to the Constitutional Court, State of Emergency executive decrees can introduce only “specific measures designed to eliminate the conditions prompting the declaration of State of Emergency” and shall be “limited to the issues necessitated by the State of Emergency, and the reasons and purposes of the State of Emergency.”

In the same ruling, the Constitutional Court also stated that State of Emergency executive decrees can apply only during the State of Emergency: “Executive decrees on issues necessitated by the state of emergency or martial law apply only in the regions they cover and only during the duration of these. The provisions of the executive decrees cannot apply once the state of emergency ends. As such, state of emergency executive decrees cannot make amendments to laws. If the aim is to make sure that the state of emergency executive decrees and the rules therein apply outside these regions and after its duration, then such provisions must be passed by law. Because, issues that extend outside the state of emergency regions or beyond its duration cannot be issues necessitated by the state of emergency.”

As is seen, permanent provisions which will apply after the State of Emergency ends can only be passed by law. However, the Constitutional Court reneged on this ruling in the annulment actions brought against the Executive Decrees 668, 669, 670 and 671, and unanimously declared itself to be unauthorized as regards State of Emergency executive decrees.

Nonetheless, the Constitution’s Article 121 and European Charter of Human Rights Article 15 stating that basic rights can be limited only “as required by the exigencies of the situation” under a state of emergency are still in force. Limitations of rights and freedoms that are not related to eliminating the danger prompting the state of emergency cannot be seen as limitations required by the exigencies of the state of emergency. However, some of the executive decrees passed after the State of Emergency have granted public authorities vast powers of limiting, blocking or banning basic rights, which are totally unrelated to the declaration of the State of Emergency.

An analysis of the executive decree amendments passed after the July 15 coup attempt as listed in detail in this study reveals that the vast majority of these are not temporary, but permanent provisions going beyond the duration of the State of Emergency. A few cases in point would be the subordination of Force Commands to the Ministry of National Defense, closure of the Presidency of Telecoms and Communication (TİB) and its replacement with Information and Communication Technologies Authority (BTİK), the permanent transformation of the criminal procedure via amendments to the Criminal Procedure Code, restructuring of the higher judiciary organs, creation of the Wealth Fund and Turkey Maarif Foundation, appointment of special administrators to replace mayors accused of aiding and abetting terror organizations, or the subordination of the National Intelligence Service to the President’s Office. Passing such comprehensive measures which transform the functioning of institutions so radically and in a way that will apply after the State of Emergency as well, without any debate in the Turkish parliament which is in charge of the legislation function, and through methods normally limited to the purposes of the State of Emergency, goes clearly against the legal security principle, inviolability of the legislative power, and the principle of the separation of powers.

The European Commission for Democracy through Law (Venice Commission) emphasizes that such changes based on concepts developed in the context of the State of Emergency according to the needs of this period damage the regular legislation, which can potentially make exceptional rules permanent and damage the normal democratic political process. The Commission states that the real purpose of the State of Emergency is to restore the democratic legal order and that State of Emergency executive decrees should not make permanent structural changes in legal institutions, procedures and mechanisms, except in situations clearly set forth in the Constitution in a clear and overt manner.

Such structural changes must be carried out only in the regular legislative process, through transparent discussions and in the framework of democratic conventions. Otherwise, the State of Emergency logic and procedures will de facto become the norm. Such a situation poses huge risks for human rights, parliamentary democracy and the rule of law.

1. Metin Gürcan, Never Again! But How? State and The Military In Turkey After July 15, İstanbul Policy Center, 2016, s. 3.

2. Ümit Cizre, “Turkey in a Tailspin: The Foiled Coup Attempt of July 15”, http://www.merip.org/mero/mero081016, 2016.