Venice Commission - Observatory on emergency situations
www.venice.coe.int
Disclaimer: this information was gathered by the Secretariat of the Venice Commission on the basis of contributions by the members of the Venice Commission, and complemented with information available from various open sources (academic articles, legal blogs, official information web-sites etc.).
Every effort was made to provide accurate and up-to-date information. For further details please visit our page on COVID-19 and emergency measures taken by the member States: https://www.venice.coe.int/WebForms/pages/?p=02_EmergencyPowersObservatory&lang=EN
1. Are there specific provisions in the constitution of your country applicable to emergency situations (war and/or other public emergency threatening the life of the nation)?
Article 119 of the Constitution provides that in the event of war, rebellion, widespread acts of violence etc., or in the case of occurrence of natural disasters, outbreak of dangerous epidemic diseases or emergence of a serious economic crisis the President of the Republic may declare state of emergency in one region or nationwide for a period not exceeding six months.
2. Do organic/constitutional or ordinary laws regulating the state of emergency exist in your country?
The state of emergency regime is regulated by the Constitution (see Q1).
3. Do organic or ordinary laws on health risks or other public emergency exist in your country?
Management of epidemies is regulated by Law No. 1593 on Protection of Public Health dated 24/4/1930. This law includes provisions for the protection and administration of public health, the fight against diseases, ensuring public health in general, the fight against infectious diseases and the necessary measures to be taken for public access to health services.
4. Was a state of emergency declared in your country due to the Covid-19 pandemic? By what authority and for how long?
A state of emergency was not declared in Turkey due to the Covid-19 pandemic. Emergency measures were taken by regulatory acts of President and the executive authorities based on the powers given to those authorities by the ordinary legislation on health risks, police powers of the regional governors etc.
5. Was the declaration subject and submitted to parliamentary approval (if it was taken by the executive)?
The state of emergency has not been declared and, hence, has not been submitted to Parliament
6. Was the declaration subject and submitted to judicial review? Was it found justiciable?
No such declaration of a state of emergency was made.
7. Are derogations to human rights possible in emergency situations under national law? What are the circumstances and criteria required in order to trigger an exception? Was a derogation under Article 15 ECHR or under any other international instrument made? Does national law prohibit derogation from certain rights even in emergency situations? Is there an explicit requirement that derogations should be proportionate, that is limited to the extent strictly required by the exigencies of the situation, in duration, circumstance and scope?
Article 15 of the Constitution (entitled “Suspension of the exercise of fundamental rights and freedoms” provides that “in times of war, mobilization, a state of emergency, the exercise of fundamental rights and freedoms may be partially or entirely suspended, or measures derogating the guarantees embodied in the Constitution may be taken to the extent required by the exigencies of the situation, as long as obligations under international law are not violated."
8. Which human rights have been limited/derogated from in your country, in the context of the Covid-19 pandemic?
The Turkish authorities took certain measures to ensure social isolation, to maintain social distance and to control the rate of spread of the pandemic in accordance with the recommendations developed by the Scientific Board and of the Ministry of Health. These measures were taken on the basis of ordinary legislation on health hazards.
9. If a declaration of state of emergency was not made, did the Executive enjoy additional powers under the ordinary legislation on health risks or another public emergency? Did it decide to impose exceptional restrictions on human rights based on these laws?
Declaration of the state of emergency was not made in connection with the COVID-19 crisis.
10. Are the possibilities for the Executive to derogate from the normal division of powers in emergency circumstances limited in duration, circumstance and scope?
Since no emergency was declared in relation of COVID-19, the Government was using powers provided by the ordinary legislation.
11. Were the sessions of parliament suspended during the Covid-19 pandemic? If so, for how long? Were specific rules on the functioning of parliament during the emergency adopted? By parliament or by the executive?
Parliamentary work has not been suspended from the date of the first Covid-19 case seen in Turkey (March 11, 2020). After completing the discussions of issues on its on the agenda, the Grand National Assembly decided not to meet on 21, 22, 28, 29, 30 April 2020 and decided to take a break for ten days, starting from 5 May 2020. No specific rules regarding the functioning of Parliament during the Covid-19 pandemic were adopted at the General Assembly of the Turkish Grand National Assembly. In the offices of the General Assembly normal activities continued, accompagnied by taking sanitary measures (such as social distancing, wearing of masks etc.), in accordingace with the Scientific Board's suggestions.
12. Were the judicial sessions of the Constitutional Court or court with equivalent jurisdiction and/or other courts be suspended during the Covid-19 pandemic? If so, for how long? Were specific rules on the functioning of these courts during the emergency adopted? By parliament or by the executive?
Under provisional Article 1 of the Law No. 7226 on Amendments to Some Laws, judicial deadlines for the proceedings before the Constitutional Court have been suspended until April 30, and this suspension was later extended until June 15. The deadlines for lodging individual applications to the Constitutional Court of Turkey were also suspended until that date. The Court continued to receive individual applications during this time. In particular, applications requesting interim measures were examined. Other individual applications were also examined, but rather in slow pace. In the Court, members and rapporteur judges switched to teleworking. The regular plenary and sections sessions have been suspended; however, online plenary meetings have been held when necessary. As regard to personnel, a minimum number of staff (1 employee per unit) is working by rotation in each department, and others are encouraged to work remotely. During the pandemic, the Court held one plenary session through video-call. Thereafter, the Court continued to have regular sessions of the Plenary and Sections by employing social distancing and other disinfection and sterilization measures.
13. Was legislation on the state of emergency or on the emergency amended or adopted to deal with the Covid-19 pandemic?
The legislation on the state of emergency was not amended during the COVID-19 crisis
14. Was this additional legislation subject to judicial review?
No additional legislation was taken and therefore subject to judicial review
15. Was the state of emergency prolonged? For how long? Was the prolongation subject and submitted to parliamentary control? Was it subject and submitted to judicial review?
The state of emergency was not declared (and, consequently, not extended) - the executive authorities used powers given to them by the current legislation and by the amendments introduced by Parliament during the crisis
16. What are the legal remedies available against general measures and/or individual taken under the state of emergency? What are the legal remedies for measures taken in application of ordinary legislation on health crisis? Has any change to the available legal remedies been decided on account or brought about by the state of emergency? Were any emergency measures invalidated and for what reasons (competence, procedure, lack of proportionality etc.)
The Constitutional Court has not delivered any judgement on the measures relating to the pandemic.
17. If parliamentary and/or, where applicable, presidential elections were scheduled to take place during the Covid-19 emergency: were they held? Were special arrangements made, and if so, which arrangements? Was it necessary to amend the electoral legislation? What was the turnout? How was it compared to the previous elections? If they were postponed, what was the constitutional or legal basis for doing so? Who took the decision? For how long were they postponed? Was this decision subject and submitted to parliamentary control or judicial review?
Not applicable - no parliamentary or presidential elections were scheduled during the COVID crisis
18. Same questions as under 17), mutatis mutandis, as regards local elections and referendums.
Not applicable - no local elections were scheduled during the COVID crisis
Turkey
This declaration shall be submitted for approval to the Grand National Assembly of Turkey on the same day. If the Grand National Assembly of Turkey is in recess, it shall be immediately summoned.
The Grand National Assembly may extend the period for a maximum of four months each time at the request of the President of the Republic. In the event of war, this time-limit shall not apply.
In the event of state of emergency, the President of the Republic may issue presidential decrees on matters necessitated by the state of emergency. Limitations set forth in the second sentence of the seventeenth paragraph of the Article 104 (for example not to regulate by decrees issues of fundamental rights or matters which are within the exclusive competency of the legislator or regulated by law) are inapplicable during the emergency. Such decrees which have the force of law shall be submitted for approval to the Grand National Assembly of Turkey on the same day.
Except in the case of inability of the Grand National Assembly of Turkey to convene due to war or force majeure events, presidential decrees issued during the state of emergency shall be debated and decided in the Grand National Assembly of Turkey within three months. Otherwise presidential decrees issued during the state of emergency automatically lose effect.
In addition, it is regulated by the Law on State of Emergency of 25 September 1983 (No. 2935). This law includes provisions regarding
- declaration of state of emergency,
- financial, material and labour obligations to be imposed on citizens where state of emergency declared in cases of natural disasters, dangerous epidemic diseases or serious economic crisis,
- the manner of restriction and temporary suspension of fundamental rights and freedoms to be valid separately for each type of emergency situations,
- how and in what manner the measures required by the situation will be taken,
- what competences the public service officers will be given,
- what changes will be made in the positions of the officers, and
- administration of state of emergency.
For the unofficial English translation of the Law click here
Article 3 repeats the provisions of the Constitution on the declaration of the state of emergency; in addition, it requres the President to consult with the National Security Council before declaring the state of emergency or extending it. It also specifies that the reasons for taking the decision, the region and the duration of the state of emergency shall be announced through the Turkish Radio and Television Corporation and other means if deemed necessary by the President.
As regards COVID-19 crisis, the state authorities used powers given to them by ordinary legislation, not within the framework of the state of emergency legislation (see Q3)
There are also provisions in the Turksih legislation regarding the emergency situations in the following laws:
- Law No. 5902 on Organization and Functions of the Disaster and Emergency Management Presidency
- Law No.7269 on Measures and Assistances to Be Put into Effect Regarding Disasters Affecting the Life of the General Public
- Law No. 4123 on Execution of Services Related to Damage and Disruption Caused by Natural Disasters
- Law No. 7126 on Civil Defence
- Law No. 6306 on Restructuring of Areas Under Risk of Disasters
- Law No. 7402 on Destruction of Malaria
- Law No. 5368 on Fight against Tuberculosis
- Law No. 2548 on Ship Health Charges
- Law No. 3359 Basic Law on Health Services
- Law No. 5442 on Provincial Administration
In particular, the Law on Provincial Administration gives the governor of a province the power to take necessary measures to provide peace, security, and public well-being, which may include measures prohibiting certain people from entering or exiting certain places. The Law on the Protection of Public Health authorizes Public Health Councils, established in all provinces, to take necessary measures against a pandemic, including introduction of a quarantine regime, medical checkups, closure of public places etc. These provisions were applied by the State authorities in dealing with the COVID-19 crisis
Certain rights are inviolable even during the state of emergency (Article 15 paragraph 2): the right to life, the physical and spiritual integrity (except where death occurs through acts in conformity with law of war). Noone shall be compelled to reveal his/her religion, conscience, thought or opinion, nor be accused on account of them; offences and penalties shall not be made retroactive; nor shall anyone be held guilty until so proven by a court.
Under Article 119 of the Constitution, the financial, material and labour obligations to be imposed on citizens, the manner of restriction and temporary suspension of fundamental rights and freedoms in line with the principles of the Article 15, and the provisions to be applied and actions to be carried out in the event of state of emergency shall be regulated by law.
Some of the measures taken in the context of the said legislation are as follows:
- Measures taken for all entrances / exits to a certain number of cities determined to be at risk,
- Measures targeting people at risk, such as elderly, children, pregnant women and those with chronic illnesses,
- Measures related to public recreational venues such as restaurants, cafes, picnic areas, swimming pools, sports centres, shopping malls, district bazaars etc,
- Measures related to performing prayers collectively in mosques,
- Measures for continuing education and training activities using remote/online education methods at levels of basic, secondary and higher education.
More specifically, for example, the Ministry of Interior authorised local authorities to impose a curfew for elderly people (over 65) and people with a chronic illness. A circular of the Ministry of Health suspended all the resignations of the health workers.
Decisions regarding the relevant measures were taken and implemented by the competent authorities in accordance with Article 11/C of the Provincial Administration Law and Articles 27 and 72 of the Law No. 1593 on Protection of Public Health.
Pursuant to Article 11 / C of the Provincial Administration Law;
“Providing peace and security, personal immunity, safety, public well-being and the competence of preventive law enforcement within the provincial borders are among the tasks and duties of the governor. To ensure these, the governor shall take the necessary decisions and measures.
In the event that public order or security has been deteriorated in a way that will stop or interrupt ordinary life, or if there are serious indications that it will deteriorate, the governor may restrict the entrance and exit to certain places in the province for no more than fifteen days, for those who are suspected to disrupt public order or public safety; may regulate or restrict people's wandering, gathering, driving of vehicles in certain places or hours, and may prohibit the carriage and transportation of all kinds of weapons and bullets, even if they are licensed.
The provisions of Article 66 shall apply to those who do not comply with the decisions and measures taken and announced under this paragraph.”
Articles 27 and 72 of the Law No. 1593 on Protection of Public Health regulate the powers of the public hygien councils, which may take measures to improve the sanitary condition of the city and towns and the villages and to eliminate the existing disadvantages by always paying attention to
the sanitary condition of the region. The councils collect information about infectious and epidemic diseases, enlighten the public about ways to prevent infectious and internal diseases and the benefits of sanitary life, and in case of an infectious disease, they help to perform the measures taken to eliminate the disease.
Under Article 72, if one of the diseases mentioned in Article 57 occurs or if its occurrence is suspected, the following measures are applied:
1 - The isolation and observation of people by health officials in their homes or in special places [...]
2 – Application of serum or vaccine to patients or those exposed to the disease.
3 - Cleaning of persons, belongings, clothes, laundry and buildings and all other substances that are found to have been exposed to the disease
4 - Culling of pests and animals that spread the disease
5 - Examination of people travelling in the country where necessary and cleaning of their belongings
6 - Prohibition of the use and consumption of foodstuffs that cause the contamination and spread of the disease
7 - Closure and evacuation of public areas where infectious and epidemic diseases occur, until the danger passes
In theory, during the state of emergency, the President may issue emergency decree laws on matters which cannot be regulated by the Presidential decrees in normal conditions.
It appears that the Constitutional Court declared itself incompetent to evaluate the scope of the presidential emergency decrees, in the context of the post-coup emergency regime of 2016 (click here)
As regards ordinary courts, measures were taken to postpone hearings and judicial inspections of the first instance civil and administrative courts, and to continue all other judicial activities and proceedings. Priority was given to detention orders, investigation and prosecution of cases that are close to the period of limitation, requests for suspension of execution, and other proceedings considered as urgent.
These measures were taken by the Council of Judges and Prosecutors (for the lower courts), as well as by the regional courts of appeals and regional administrative courts, in accordance with the provisional article 1 of the Law No. 7226 on Amendments to Some Laws.
In the courthouses measures such as social distance, mask wearing and hygiene rules were in place, and staff was encouraged to telework.