The Turkish government's response to the threat from the coup attempt
The State of Emergency
The lethal violence underpinning the coup attempt of 15 July 2016 represents a denial of the most basic of human rights and freedoms, as well as of the values of democracy. As the FCO repeated to us, the UK supports Turkey's right and obligation to defend itself against such threats, and to punish the perpetrators.173 At the same time, Turkey accepts—as an intrinsic part of its values—legal limitations to the way in which a state can respond to such threats, so as to protect the values, rights, freedoms that are threatened by terrorism, coups, and other crimes.174
On 21 July 2016, after the 15 July coup attempt, Turkey declared a State of Emergency. In the formal notification that Turkey provided to the Council of Europe, under the terms of the European Convention on Human Rights (ECHR), Turkey said that its basis for declaring the Emergency was not just the coup attempt, but also the threat from terrorism:
The coup attempt and its aftermath together with other terrorist acts have posed severe dangers to public security and order, amounting to a threat to the life of the nation in the meaning of Article 15 of the Convention for the Protection of Human Rights and Fundamental Freedoms.175
The State of Emergency was extended by the Turkish parliament for a further three months in October 2016 and then for a second time for another three months, in January 2017.
Under the terms of Turkey's Constitution,176 a State of Emergency enhances the powers of the Turkish state in order to counter threats to national security and stability. One of its most salient features is its granting to the President, supported by the council of ministers, the power to issue legislative decrees that have the status of law without being passed by parliament.
At the same time, the State of Emergency also suspends or reduces some of the rights and freedoms that are conventionally guaranteed to the citizen under the Turkish constitution, including some of those with regard to dismissal from employment, detention, freedom of speech, and freedom of assembly.177 International law takes account of the existence of a State of Emergency, and the declaration of an Emergency alters some of Turkey's international obligations.
The ECHR permits the declaration of a State of Emergency under the provisions of its Article 15, "in time of war or other public emergency threatening the life of the nation", and this is the clause that Turkey applied to the coup attempt and its aftermath and to terrorism.
Article 15 of the ECHR nevertheless applies with specific restrictions: certain provisions of the ECHR remain in place even under a State of Emergency, including the right to life except in respect of deaths resulting from lawful acts of war (Article 2), the
prohibition of torture (Article 3), and the principle of 'no punishment without law' (Article 7).178 Governments must remain bound by their other commitments under international law. And any actions taken by the Government under a State of Emergency must be "strictly required by the exigencies of the situation".
This latter point means that a State of Emergency should over time be self-correcting, because the measures taken under it should remove the circumstances that justify their existence. In light of this, witnesses expressed a number of concerns to us about the basis of the State of Emergency in Turkey. These concerns were summarised to us by Dr Alan Greene, a Lecturer in Law at Durham University:
The application of the Emergency by Turkey to the coup attempt, its aftermath, and terrorism is broad, and Turkey's definition of terrorism—not least the one that it applies to the Gülenists, as discussed in Chapter 3—is vague.
Making the provision even broader still, the Council of Europe reports that Emergency powers can target not only those who are members of a terrorist organisation but also those who support such an organisation.179 The wide application of these powers will likely make the "exigencies of the situation" harder to resolve, thus lengthening the time taken to do so and the period for which the Emergency powers apply.180
Article 15 of the ECHR contains no specific time limit as to the duration of a State of Emergency. A permanent state of emergency is not, technically, a contravention. It is nevertheless unprecedented for the European Court of Human Rights (ECtHR) to pressure a state into ending a State of Emergency, and Dr Green told the Committee that "to date, the Court has never found that an emergency did not exist in a state that declared one".181
Turkey has a history of extending States of Emergency for prolonged periods. Dr Greene writes that "in 1987, for example, Turkey declared a State of Emergency in the face of escalating terrorist attacks. This was to remain in force until it was lifted on the last two provinces in November 2002—a period of 15 years."182 The AK Party cancelled this State of Emergency after first being elected to government in 2002.
In terms of Turkey's legal obligations under the State of Emergency, the submission from the Turkish Embassy said:
In the face of grave and violent attacks against the national security and FETO terrorist organisation's infiltration everywhere, the declaration of the State of Emergency was deemed necessary. The Republic of Turkey adheres to its obligations stemming from international conventions to which it is a party and strongly adheres to democracy, human rights, the principle of rule of law.
and measures to be taken within the context of the State of Emergency, including individual application to Constitutional Court. The supervision of the European Court of Human Rights remains valid.183
Referring to Article 15 of the ECHR, the Embassy also told us that Turkey's response was necessary and proportionate.184 The FCO said that the UK emphasised to Turkey the importance of complying with these obligations:
Ministers have also made clear the importance of ensuring measures taken under the State of Emergency are measured and proportionate, upholding democratic principles and Turkey's international human rights obligations.185
Terrorism and coup attempts are a denial of the most basic of human rights and freedoms, as well as of the values of democracy. It would be naïve to assume that any country would go through a coup such as the one Turkey went through and not see significant changes made in order to protect its democracy and the rule of law.
The UK is right to support Turkey's defence of itself against future threats from coups and terrorism. However, Turkey must demonstrate its commitment to upholding its international legal obligations during its response to these threats, and the UK has an important role to play in ensuring Turkey's compliance.
The State of Emergency in Turkey significantly expands the power of the executive, while also curtailing some of the rights and freedoms of the citizen. While the implementation of the State of Emergency is understandable given the events of the July coup attempt, the Turkish government needs to provide the international community with a clear indication that it is seeking a path to normalise the security situation. States of Emergency should be self-correcting, as the powers that they allow should address the threat that permits them.
The threat to which they apply should be specific. Although permissible under, and guided by, the provisions of Article 15 of the European Convention in Human Rights (ECHR), a broad and vague application of the State of Emergency in Turkey, in a way that extends far beyond addressing the causes of the coup attempt, risks a prolonged period of Emergency rule, and that raises the risk of people's rights being abused.
The FCO should press Turkey to ensure that
the provisions of Turkey's State of Emergency, and the actions taken under them, are proportionate to the exigencies of the circumstances that triggered the Emergency's declaration, and that these exigencies are given as narrow a definition as possible
the State of Emergency is temporary, not prolonged, and is lifted as soon as possible
That Turkey complies fully with its ECHR obligations.
183 Turkish Embassy TUR0012 p 7
184 Turkish Embassy TUR0043 Q1
185 Foreign and Commonwealth Office TUR0010 para 8