Pişkin v. Turkey: Observations on the failure of the Lawfulness Test and the Engel Criteria within the context of the Turkish Purge

By Hakan Kaplankaya, former Turkish diplomat, jurist, INSTITUDE member

On 15 December 2020, the European Court of Human Rights (ECtHR/the Court) delivered its first judgment regarding the purge of a public employee as per the first of the notorious emergency legislative decrees adopted by the Turkish government in the aftermath of the controversial coup attempt staged on July 15, 2016. The government had blamed the Gülen Movement for orchestrating the coup attempt and enacted various emergency measures with no regard for constitutional and statutory imperatives, including the dismissal of 130 thousand public servants. However, the purge was not limited to Gülenists, but also affected other ‘disloyal’ public servants such as academicians who signed a petition asking for peace for the Kurdish problem. The dismissed officials were also subjected to other punitive measures including the cancellation of their passports, a ban on performing certain professions besides the life-long prohibition of public service, as well as other administrative practices preventing them from finding jobs in the private sector, which – all combined – could be argued to amount to a civil death.

Facts

The applicant had been working under a labor contract with the Ankara Development Agency, a public institution. Shortly after the failed coup, his contract was terminated by the Agency based on the decree-law no. 667. No concrete ground was mentioned in the dismissal notification. Arguing that the removal was unfair and invalid, he challenged this measure using domestic remedies. However, his efforts for the reinstatement yielded no result before Turkish judiciary despite the fact that the Office of Ankara Chief Prosecutor decided not to prosecute him on his alleged links to a terrorist organization.

Judgment

The applicant lodged an application with the ECtHR alleging that his dismissal amounted to a treatment contrary to Article 3 of the European Convention on Human Rights (the Convention) as he was labeled as a ‘terrorist’. The applicant argued that his right to fair trial in judicial proceedings concerning his dismissal had been violated. He also complained that his rights under article 6 had been breached, including article 6§§2-3, which are applicable to criminal procedures.

The applicant only complained of a violation of his right to fair trial under article 6. Since he was not aware of the the applicability of other limbs of article 6 or the violation of his right to respect for private life under Article 8, he did not submit any observations regarding those articles. Nevertheless, the Court decided to examine the applicability of both the civil and the criminal limb of article 6 in regard to the dismissal measure, as well as the applicant’s ill-treatment complaint under article 8. Third party interveners submitted their arguments concerning article 6, but their joint third-party submission remained silent on questions related to article 8. The Court unanimously ruled that the right to a fair trial, and respect for private life, of the applicant have been violated. The Court stated that although the domestic courts theoretically held full jurisdiction to determine the dispute, they failed to examine all questions of facts and the legislation applicable to the applicant’s case. Thus, the Court concluded that the applicant was not actually heard by the domestic courts, which, therefore, failed to guarantee the applicant’s right to a fair trial within the meaning of Article 6 § 1 of the Convention.

The Court applied the Engel criteria, and discussed the legal characterization and actual nature of the offence and the degree of the severity of the penalty inflicted through the dismissal measure. It concluded that the criminal limb of the article 6 of the Convention is not applicable in this case with regard to the emergency decree-law no. 667. With this conclusion, the Court also closed the door to possible claims, in future cases of the same nature, of alleged violations of article 7 of the Convention.

As for the right to respect for private life, the Court scrutinized the lawfulness of the decree-law no. 667 that established the emergency measures to be taken against certain public employees. For the accessibility criterion, the Court sufficed to state it was uncontroversial that this condition had been satisfied for this case. The Court referred to the Venice Commission’s opinion (§§119-120 of the opinion) to argue that there was a reasonable ground of foreseeability for dismissal measures. The Court highlighted that it was incumbent on the domestic courts to afford legal protection against arbitrary interference taking account of their interpretational role in ensuring the foreseeability of legal provisions. As for the existence of the legitimate aim, in absence of any argument from the applicant, the Court concluded again that the parties did not dispute, in substance, that the interference with the applicant’s right to respect for his private life had pursued several legitimate aims for the purposes such as the protection of national security and the prevention of disorder and crime. Analysing the necessity of the interference in a democratic society, the Court reminds us of the principles relevant to the case, namely a Member State’s legitimate interest in regulating employment conditions in the public service and the loyalty requirement of civil servants to the constitutional order. The Court underlines the Turkish government’s margin of appreciation in its initial assessment of the necessity of the interference which subject to the Court’s final evaluation. As regards to the supervision of those principles, the Court states that it will merely ascertain whether the decision-making process leading to the applicant’s dismissal was surrounded by safeguards against arbitrary action and whether the applicant benefited from these procedural guarantees.

Through application of this novel scrutiny method, the Court unanimously found a violation of the applicant’s right to respect for private life on the basis that the domestic courts failed to scrutinize the reasons why the applicant’s employment contract had been terminated and that the judicial review of the impugned measure was inadequate. Thus, the Court assessed that the applicant did not benefit from the minimum degree of protection against arbitrary interference required by article 8 of the Convention. However, in the context of this analysis, the Court did not express a clear position regarding the necessity of the interference in a democratic society. Nevertheless, as a consequence of the course of the logic in the judgment, it is understood that the emergency measure has passed the lawfulness test before the Court.

Judge Koskelo’s concurring opinion

Judge Koskelo raises substantial oppositions to the method of the Court’s analysis in this case. First, as for the article 6 violation, she argues the Court’s finding that the characteristics of the judicial review, in principle, was ‘sufficiently satisfied’ is not quite suited to the circumstances of the case given the actual weakness of the domestic judicial review.

Secondly, she observes that the Chamber concludes, albeit not firmly, that the requirements of ‘lawfulness’ as such were not infringed in this case and that the standard criteria for the determination of the ‘quality of the law’ were not met in the present case with regard to emergency legislative decree no 667. She considers that a more rigorous review should have been undertaken in terms of the ‘lawfulness’ test, in line with the Court’s case-law. She notes that the case-law of the Court has established general principles for the assessment of the ‘quality of the law’, which are pertinent in the present context but are neither mentioned nor addressed in the judgment. After summarizing the relevant jurisprudence, she notes that the emergency decree-law was worded very vaguely as far as the grounds for dismissal are concerned. She adds that it is difficult to see how such a legal basis for measures that entailed dramatic and, in principle, permanent consequences for the individuals concerned could be considered consonant with the standards developed in the Court’s case-law. She also refers to the Venice Commission’s concerns regarding the formulation of the emergency decree-laws’ relevant provisions and its finding that the dismissals were not based on individualised reasoning which made any meaningful ex post judicial review of such decisions virtually impossible.

Moreover, she underlines that as regards the judicial review and the relevant requirements of judicial independence, one should not lose sight of the fact that all the members of the judiciary were themselves subject to the threat of dismissal under the same emergency measures. Thus, she considers the quality of the legal framework, including the relevant safeguards, appears highly problematic from the point of view of the established Convention standards.

Commentary

Ignoring the main factual background of the purge mechanisms set up and conducted by the Turkish government immediately following the coup attempt, I think the Court’s conclusion in Pişkin is wrong under both facts and law, -with regards especially to both the application of the criminal limb of article 6 and the lawfulness test under article 8 of the Convention. I elaborate the arguments below to support my conclusion.

Criminal nature of the measures taken against Pişkin

Despite what the Court found in this judgment, there are many indications that persons dismissed on the basis of decree-laws are subjected to criminal charges and consequences. Pişkin himself was discharged from his position through an administrative decision based on the emergency decree-law no. 667, deviating from the ordinary procedure typically carried out under the Labor Code. The decree-laws cite the terms ‘membership to’ or ‘relation, connection or contact with’ a terrorist organization as possible bases for the dismissals. However, the public agencies punished all victims in the most severe way possible, without making any distinction with regard to the intensity of their alleged relations with ‘illegal structures’. Furthermore, prosecutors opened investigations against all dismissed civil servants, including Pişkin, on the ground of suspicion of membership to a terrorist organization.

The nature of the accusation – an element of Engel criteria, – made against purged employees through decree laws demonstrates the criminal charge therein. The ulterior purpose of the dismissal measures was to cleanse the public institutions from individuals who are believed to be disloyal to the state, or indeed to the ‘ruling party’. Among the reported indicators of disloyalty that merits a sanction are: having an account in a legal bank named BankAsya, subscribing to Zaman daily, using the ByLock mobile app downloaded from the Google Play Store, and enrolling children to legally operating schools linked to Gülenists. The predominant majority of people who exhibit one or more of these indicators have been prosecuted for membership of a terrorist organization. Thus, the criteria applied for the purge obviously aim to punish people who are considered ‘undesirable’ by the incumbent government and to deter the entire Turkish society from engaging in such relations with any dissident groups or structures in the future.

In addition to the dismissal from public service, these persons are also disqualified from performing some other professions requiring licenses or administrative authorisations, such as attorney, teacher in private schools or private security guard. It should also be noted that the life-long ban on re-occupying a public position imposed on the dismissed Turkish officers is actually a punitive measure taken by assize courts against culprits of severe crimes under Turkish Criminal Code. Furthermore, their passports and pilot’s licenses were canceled and they were evicted from state-sponsored accommodations. Moreover, the special notes and codes recorded in the State’s digital social security systems display their status of dismissal and, as such, constitute additional impediments to finding jobs and maintaining their social welfare. On top of these, the state officials’ provocative and defamatory language towards the dismissed persons renders the social atmosphere unbearable for them.

Against this backdrop, it can reasonably be inferred that, regardless of the respective bases for each employee dismissed, almost all of them have been treated as members of a terrorist organisation and suffered the heaviest set of punitive consequences laid down in the decree-laws. Therefore, the punitive provisions of decree-laws, in practice, fulfil a function to penalise the purge victims for their presupposed link to an armed terrorist organization. This means that the decree-laws are, in fact, of criminal character. Having regard to the foregoing considerations, the Court should have found article 6 of the Convention including the criminal limb applicable to the present case.

Unlawfulness of the decree-laws in terms of article 8  

Another controversial finding of the Court in the Pişkin judgment concerns the lawfulness of the measures adopted through the emergency decree-laws in terms of article 8 of the Convention. The Court seems to consider that the Turkish purge mechanism passes the lawfulness test. However, the Court’s finding in this test was reached through a rather cursory scrutiny and does not fit with its established case-law.

Since the relevant decree-laws contain vague and undefined terms and concepts such as ‘membership, connection or contact with a terrorist organization’, it is almost impossible to clearly comprehend their range and demarcate the exact boundaries of these dismissal grounds. In the absence of clear criteria to define these new terms that did not previously exist in Turkish criminal law, those terms cannot be interpreted correctly, and the public authorities will keep failing to apply them properly. The scholarly community and the judiciary have not had an opportunity to define those terms either. These facts were also mentioned by Judge Koskelo in her concurring opinion, as well as by the Venice Commission in its Opinion on Emergency Decree-Laws (§§ 128-131). Under these circumstances, the decree-law should not be qualified as accessible.

With regard to the foreseeability of the decree-laws, it suffices to note that they penalise acts which the concerned persons performed prior to the attempted coup. In other words, the decree-laws have been applied retroactively in a way that violates the principle of ex post facto law prohibition. Furthermore, as Muiznieks affirms in his capacity of Commissioner for Human Rights of the Council of Europe, ‘the acts that are supposedly indications of membership to a ‘terrorist organization’ are indisputably lawful activities at the time of commission.’

Whereas the Court refers to the Venice Commission’s opinion to sustain the foreseeability of the emergency measure, it remains silent regarding the necessity to establish a clear point in time from which the state officials accountable can be held accountable for their alleged relations with the concerned group. Besides, the Court does not refer to the very next paragraph (§121) of the same opinion, which waives the liability on the victims of the purge.

On top of that, the individuals removed from public office did not stand a chance to refrain from any acts and conducts proscribed by the decree-laws, as they could not be expected to have been aware that these would be arbitrarily classified as terrorism-related activities many years later. Furthermore, all of these ‘punishable’ activities, such as holding a bank account with a legally operating bank, subscription to a daily newspaper known as part of Gülenist press, attending religious circles, reading Gülen’s books, assisting charitable activities, membership to a particular trade union or association that were founded and operating fully in accordance with law, fall under the protection of the Convention.

Retroactive application of the decree-laws also implies that the dismissals relied upon the profiling lists that had been compiled and created by state authorities long before the actual coup attempt. Therefore, it is untenable to assert that emergency decree-law no. 667 has the quality of law.

Is the interference necessary in a democratic society?

The Court evaluates the necessity of the interference in a democratic society as part of the legitimate interests of the State in regulating employment conditions. However, such a starting point is wrong as the case does not relate to a prospective recruitment policy change. Rather, it regulates the rules on the dismissal of public employees through unforeseeable emergency legislative measures without providing them with any safeguards such as the right to defense.

It can fairly be argued that states inherently have the right to take certain measures against public servants who engage in undesired relations with structures posing a threat to national security. But these measures should be designed to meet pressing social needs and be tailored to serve the purposes for which the measures are taken. In this context, the Turkish purge practice may be justified under certain conditions, as the Court endorses in the 125th paragraph of the judgment, such as ‘(…) immediate dismissal of civil servants or other civil-service employees who had clearly been involved in the failed military coup of 15 July 2016’.  Needless to say, the Court is rigorously refraining from using any expression which could be considered as questioning the official narrative around the coup attempt. Nevertheless, the Court should have scrutinized the legitimate aim and the necessity of the legislative decrees with a view to taking into account the fact that the predominant majority of the purgees have never been involved in any act of violence throughout their entire life – let alone the issue of their participation to the attempted coup.

In this regard, it is noticeable that, in the Pişkin case, the Court did not examine the existence of the balance of necessity between all the measures that were taken – including dismissal, cancellations and further prohibitions – and the legitimate aim invoked by the state party.  The dismissal of an ordinary public employee in this sense is not to be justified unless a convincing explanation as to how her dismissal might be important to the preservation of national security is provided.

Furthermore, the Court seems to have missed out on the proportionality test regarding the decree-law no. 667. In its reasoning, the Court refers to the 84th paragraph of the Venice Commission’s opinion, which endorses the need to conduct a swift purge of persons clearly implicated in the coup from the State apparatus. But it overlooks the subsequent paragraph (§85) of the opinion, which reserves that ‘the same result may be achieved by employing temporary measures, and not permanent ones’. Taking into account the political sensitivity of the legitimate aim and imperative social need criteria, the Court’s ‘sailing in safe waters’ approach might be understandable. However, as Tom Ruys and Emre Turkut noted in their article which examines the conventionality of the ‘Turkish purification process’, dismissal of a public servant with a life-time ban is clearly not proportionate. Besides, an entire set of punitive and excessive measures that go much beyond the loss of job, as elucidated above, is highly unlikely to be proportionate to the objectives of the decree-law. But the Court has failed to ascertain whether the measures taken against Pişkin were necessary in a democratic state, paying almost no regard to the permanent and far-reaching impact of the measures upon the victims.

The Court’s finding of violations in the Pişkin judgment is of the utmost importance for the Turkish purge mechanism, owing to the fact that it is likely to set a precedent for subsequent cases concerning public servants purged through the identical legal framework. On the other hand,this judgment fails to rectify many deficiencies of the purge mechanism operated by the Turkish government and the legal framework driving it, particularly arising from the lack of legal and procedural safeguards associated with criminal nature of the dismissals and from severe flaws concerning the foreseeability and accessibility of decree laws.

The aforementioned shortcomings in the Pişkin judgment are unfortunately likely to sustain the legal framework of the Turkish purge mechanism, as argued by renowned Turkish human rights lawyer Kerem Altıparmak. Besides, the Court appears to endorse the entire legal framework stemming from the infamous decree laws. In doing so, the Court puts the blame squarely on the Turkish judiciary for the violation of the Convention rights by advancing that they failed to provide appropriate reasoning. It is, however, wishful thinking to assume that Turkish courts would be able to carry out proper scrutiny for purge cases which were predicated on controversial emergency decrees, given especially the fact that the judiciary has been the main victim of the very same purge.

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