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Turkey: More Emergency Decrees Issued

(Sept. 8, 2017) On August 25, 2017, the Turkish government issued two new emergency decrees, numbers 693 and 694. Decree Law 693 continues the pattern in earlier decrees of providing for

  • the dismissal of public servants and the closure of institutions and organizations deemed to be a threat to national security or affiliated with terrorist organizations;
  • the reinstatement of those persons or institutions/organizations cleared of such charges; and
  • the stripping of privileges of certain retired armed forces personnel. (Olaganüstü Hal Kapsaminda Bazi Tedbirler Alinmasi Hakkinda Kanun Hükmünde Kararname [Decree on Some Measures to Be Taken During the State of Emergency], KHK No. 693, RESMÎ GAZETE, No. 30165 (Aug. 25, 2017) (click on KHK 693 hyperlink to view text).)

The names of the individuals and organizations/institutions are set forth in six attached lists. (Id.)

The extensive Decree Law 694, in 205 articles, amends over 100 laws and decrees, “substantially [altering] 12 critical laws,” including those on the state intelligence service, judges and prosecutors, the Turkish Armed Forces, foreigners, the organization of the military and military schools.  (Metin Gurcan, Erdogan Hastens Executive Presidency with New Decree, AL-MONITOR (Aug. 30, 2017).)  Other important amended laws affect civil servants, the duties and organization of the Ministry of National Defense and of the gendarmerie, health organizations, and the administrative structure of the state.  (Oya Armutçu, New Turkish State of Emergency Decrees Ties Intelligence Agency to President, HÜRRIYET DAILY NEWS (Aug. 25, 2017); Olaganüstü Hal Kapsaminda Bazi Düzenlemeler Yapilmasi Hakkinda Kanun Hükmünde Kararname [Decree Law on Some Arrangements to Be Made During the State of Emergency], KHK No. 694, arts. 60-78, RESMÎ GAZETE [OFFICIAL GAZETTE], No. 30165 (Aug. 25, 2017) (click on KHK No. 694 hyperlink to view text).)

The Decree significantly adjusts the state intelligence and security bureaucracies and provides for the recruitment of “thousands of police and judiciary personnel.” (Gurcan, supra.)   Moreover, it is described as hastening the process of the transformation of the state to an executive presidency.  (Id.)

Particularly noteworthy are the major changes to the organizational structure of Turkey’s National Intelligence Agency (MÄ°T) made under Decree Law 694 through the amendment of the Law on State Intelligence Services and National Intelligence Organization. For example, the Decree Law brings the Agency under the authority of the President of Turkey.  (Armutçu, supra; KHK No. 694, arts. 60-78;Devlet Ä°stihbarat Hizmetleri ve Milli Ä°stihbarat Teskilati Kanunu [Law on State Intelligence Services and National Intelligence Organization] (Nov. 1, 1983, as last amended effective Sept. 1, 2016), Law No. 2937, MÄ°T website.)  Thus, the Prime Minister will no longer oversee the MÄ°T undersecretary; instead, the President, currently Recep Tayyip Erdogan, will directly appoint not only the undersecretary but MÄ°T’s deputy undersecretaries and other top management officials.  (Armutçu, supra.)  Other changes in regard to MIT include the following:

  • The President will now have to first approve any investigation undertaken and any testimony given by the MÄ°T undersecretary. (Id.)
  • MIT is re-authorized to gather intelligence on the Turkish Armed Forces, its personnel, and personnel of the Defense Ministry; that function had been removed on November 28, 2011, after having been instituted in 1997 when an assassination attempt targeting then Chief of General Staff Hüseyin Kıvrıkoğlu that occurred in the Turkish Republic of Northern Cyprus “revealed deficiencies about intelligence gathering within the military, … .”   (Id.) An MÄ°T circular will be issued, after being confirmed by the President, to prescribe the procedures and principles on intelligence gathering activities, along with the duties of other institutions. (Id.) To avoid damage to the mutual trust between MÄ°T and the Armed Forces, a protocol may be signed by them in relation to the changes. (Id.)
  • The National Intelligence Coordination Board (Milli Ä°stihbarat Koordinasyon Kurulu, MÄ°KK), which has been under the MÄ°T, will also come under presidential authority, with the president now authorized to preside over it. (Id.)  The MIKK’s duties are defined under the new Decree Law as “providing a coordination regarding the fulfillment of the duties and obligations of the ministries and other public institutions and establishing and implementing basic principles of the directives of intelligence work,” and “[t]he secretariat duties of the board will be implemented by the [MÄ°T] undersecretary.” (Id.)
  • Anyone who discloses the position, duties, or activities of MÄ°T personnel or the identities of MÄ°T staff and their families will face prison terms of between three and seven years. (Id.)
  • MÄ°T personnel who “have been unable to adjust … to the conditions and qualifications” of the MÄ°T will be reported to the state personnel directorate for a ten-day reassignment process, with dismissal from the MÄ°T to occur within a maximum of 17 days. (Id.)

Two Other Recent Decrees

The Turkish government had also issued additional emergency decree laws in June and July 2017. Among other changes, Decree Law No. 691 of June 22, 2017, in 12 articles, adds Additional Article 10 to the Military Service Law, prescribing that “those who are members or have a relation to terrorist organizations or organizations that participate in actions against the state’s national security … will be taken under arms [sent to perform military service]” if they had previously been exempted.  (New Decree Law in Turkey Imposes Military Service on Terror Convicts, HÜRRIYET DAILY NEWS (June 23, 2017); Olağanüstü Hal Kapsaminda Bazi Düzenlemeler Yapilmasi Hakkinda Kanun Hükmünde Kararname [Decree Law on Some Arrangements to Be Made During the State of Emergency], KHK No. 691, art. 2, RESMÎ GAZETE, No. 30104 (2. Mükerrer) (June 22, 2017); Askerlik Kanunu [Military Service Law], Law No. 1111 (June 21, 1927, as last amended effective Aug. 25, 2017), MEVZUAT.)

According to Minister of Defense Fikri Isık, the new measure also was aimed at police officers who were exempted from military service, which otherwise is obligatory for all male Turkish citizens. He noted that if police officers leave their positions before completing their tenth year in force, they must fulfill the military service obligation.  In some cases, however, police officers had been exempted from that obligation.  The new Decree Law is aimed at those officers who had been exempted, making military service mandatory for them.  (New Decree Law in Turkey Imposes Military Service on Terror Convicts, supra.)

The June Decree Law also changes the protocol for detecting obstacles to helicopters by prescribing that information about any buildings, facilities, and any similar structures to be constructed or removed in Turkey that may affect flight safety is to be confirmed by the institutions and organizations that make, install, remove, construct, or permit the removal of these buildings and facilities and sent to the Map General Command.  Those institutions and organizations are also responsible for ensuring that the information is updated regularly and sent to the Map General Command, which will publish this information electronically.  The Ministry of National Defense will issue regulations that specify the principles and procedures for the implementation of this measure.  (Id.; KHK 691, art. 1, adding Additional Article 5 to the Map General Command Law; Harita Genel Komutanligi Kanunu [Map General Command Law], Law No. 657 (Apr. 22, 1925, as last amended effective June 22, 2017), MEVZUAT.) This new provision comes in the wake of a deadly May 31 crash of a helicopter that hit a high-voltage transmission line, killing 13 persons.  (New Decree Law in Turkey Imposes Military Service on Terror Convicts, supra.)

The June Decree Law additionally amends some provisions in Turkey’s criminal laws related to terrorist crimes. The Decree Law states, for example, that if a cautionary judgment has been made about the property of real and legal entities in cases involving crimes against the state and terrorism, but the court lacks grounds for legal action, the caution will now be lifted in two years, rather than the previously established one year.  (Id. art. 7, amending art. 20A ¶ 1 of the Anti-Terror Law; Terörle Mücadele Kanununun [Anti-Terror Law], Law No. 3713 (Apr. 12, 1991, as last amended effective Aug. 25, 2017), MEVZUAT.)   Furthermore, in cases involving crimes against the state, participation in a coup attempt, or terrorism, if a defendant’s address is unavailable “the court will only have to declare the summary of the case in a national newspaper with a circulation of over 50,000.  No further notification will be made to inform the defendants.”  (New Decree Law in Turkey Imposes Military Service on Terror Convicts, supra; KHK 691, art. 7, adding a new paragraph after art. 20A ¶ 1 of the Anti-Terror Law.)

In an amendment to the Military Criminal Code, the June Decree Law prescribes that soldiers who have stayed outside of Turkey for more than three days without official permission “will be considered ‘fugitive’ and punished accordingly.” (New Decree Law in Turkey Imposes Military Service on Terror Convicts, supra; KHK 691, art. 3, amending the Military Criminal Code (May 22, 1930, as amended), No. 1632, art. 67 ¶ 1A; Askerî Ceza Kanununun [Military Criminal Code], Law No. 1632 (May 22, 1930, as last amended effective Aug. 25, 2017), MEVZUAT.)  Turkey’s Constitutional Court had previously decided to cancel the prison terms of soldiers who were abroad without permission.  (New Decree Law in Turkey Imposes Military Service on Terror Convicts, supra.)  Isik stated that this provision is aimed at ensuring that there are no legal loopholes for fugitive members of the Fethullahist Terror Organization who have fled abroad.  (Id.)

The July 14, 2017, Decree Law No. 692, in eight articles and seven appended lists, provides for the dismissal from their jobs of more than 7,000 people and the reinstatement of 312 public workers to their posts. (Olaganüstü Hal Kapsaminda Bazi Tedbirler Alinmasi Hakkinda Kanun Hükmünde Kararname [Decree on Some Measures to Be Taken During the State of Emergency], KHK No. 692, RESMÎ GAZETE, No. 30124 (Mükerrer) [Duplicate] (July 14, 2017); Turkey Dismisses over 7,000 Police, Soldiers, Ministry Officials with New Emergency Decree, HÜRRIYET DAILY NEWS (July 15, 2017).)  As in the case of dismissals under previous decrees, those let go were persons deemed to have a link with terrorist organizations or with groups determined to have been acting against Turkey’s national security.  (Turkey Dismisses over 7,000 Police, Soldiers, Ministry Officials with New Emergency Decree, supra.)

The largest number of those dismissed, 2,303 individuals, were policemen. The lists also include 1,486 dismissals from the Interior Ministry, 789 from the Ministry of Health, 551 from the Religious Affairs Directorate (Diyanet), 546 from the Naval and Air Forces, 418 from the Ministry of Justice, 356 from the Higher Education Board, 102 from the Ministry of Education, and 45 from the Foreign Ministry.  (Id.)  Among the dismissed was former Istanbul Governor Hüseyin Avni Mutlu.  (Id.)  Decree No. 692 also stripped the ranks and grades of 342 retired Turkish Armed Forces personnel and the sports medals of former footballers Hakan Sükür and Arif Erdem.  (Id.)

The July Decree Law only granted one previously shut-down institution the right to re-open and only re-instated one discharged student. (New Emergency Decree in Turkey Orders for More Dismissals, BÄ°RGÜN DAÄ°LY (last updated July 15, 2017).)