NEWS
  • Modified Date : 22.07.2016 15:07
  • Created Date : 22.07.2016 15:05
  • Activity Date : 22.07.2016

STATE OF EMERGENCY IS CONSTITUTIONAL AND LEGAL, BUT SHALL NOT LEAD TO AN “EXTRAORDINARY” REGIME AND PRACTICES IN TERMS OF FUNDAMENTAL RIGHTS AND FREEDOMS

As previously expressed in our statements, an externally-supported, serious and grave coup attempt, the scenario of which was created by imperialism, was made against the existence, constitutional system, parliamentary regime of the State of the Republic of Turkey. This attempt was prevented by the Turkish Armed Forces Turkish Police and the Turkish Nation while our country survived a serious crisis.  

Within this framework, legal actions should be taken against these people, who are the members of this dark organization and have misused some certain state authorities in the name of this organization, and this dark structure should be removed from the capillary vessels of the state.

Following this raving attempt, state of emergency was declared by the Council of Ministers with the recommendation of the National Security Council. Within this framework:

Though state of emergency is a private legal regime regulated under Articles 120 and 121 of our Constitution, this is not a state that allows the elimination and “suspension” of fundamental rights and freedoms, right to life, right to be free from torture and ill-treatment, presumption of innocence and right to defense, in particular. Likewise, this does not allow the implementation of unlawful practices.

The attitude of the political power concerning compliance with the Constitution and law not in time of emergency, but in ordinary times,  the “democracy record” of the political power raises serious concern with respect to what extent they will act in compliance with law in this time of the state of emergency. The Prime Minister’s statement that the European Convention on Human Rights has been “suspended” during the state of emergency- that lacks a legal content- raises our concern.

However, this point has been clarified as “[any High Contracting Party may take measures derogating from its obligations under [ the] Convention […] provided that [derogatory] measures are not inconsistent with “proportionality” and  its other obligations under international law” under paragraph 1 of Article 15 of the European Convention on Human Rights. Likewise, principles of right to life, prohibition of torture and ill-treatment, slavery, lawfullness in crime and penalty have been explicitly defined as the princles that shall not be derogated (that are untouchable) even in this regime in accordance with paragraph 2 of the referred Article.  This article does not mean that the European Convention on Human Rights can be suspended.

Therefore, the state of emergency that was declared should serve its purposes and should be implemented proportionally. This should not be considered as a basis or a “blank check” for some certain political purposes and practices, fundamental rights and freedoms should be safeguarded, all actions should be taken in line with the rules of a state governed by the rule of law.

An opposite action may damage the legitimacy of the actions taken while this may also make the citizens concerned about the regime in such a time when unity and  solidarity is mostly needed.

However, as we have previously expressed, anti-thesis and antidote of the aims of coups and coup plotters is the follow-up of this, no matter how grave the incident and the attempt is, in a determined manner in line with [the principles of] a state governed by the rule of law.

In this period, it is obligatory and will serve the interest of all to protect fundamental rights and freedoms, to respect the rule of law and legal rules putting political aims aside, to act with “state mind”, free from hatred and anger, and most importantly in line with law.  As Istanbul Bar Association, our expection is that the conditions will return to normal as soon as possible, and absolute democracy and the state governed by the rule of law with all its institutions and rules will be secured and strenghtened.

      PRESIDENCY OF ISTANBUL BAR ASSOCIATION

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