Eighth High Level Meeting of the Chief Justices/Presidents of the African Constitutional and Supreme Courts and Constitutional Councils

“The Turkish Constitutional Court's Experience with the State of Emergency”

Cairo/Egypt
27 January 2025

 If a man wants to live long, he must be just.

This also applies to States.

Being just prolongs life.

Honourable Chief Justice of the Supreme Constitutional Court of the Arab Republic of Egypt, Mr. Boulos Fahmy Iskandar,

Distinguished Chief Justices and Members of the Supreme Courts,

Esteemed Colleagues,

Dear Participants,

Ladies and Gentlemen,

Let me extend my warmest greetings and highest regards to each and every one of you.

At the outset of my words, I would like to express my sincere gratitude to my fellow counterpart, Mr. Boulos Fahmy Iskandar, for kindly inviting us and hosting this organisation. 

Let me congratulate the Chief Justice, the members of the Court, as well as all those involved in this organisation on such a successful and great event. It is a great pleasure to be here and address such eminent participants.

I sincerely believe that the organisation would yield rewarding outcomes in terms of cooperation and also in the academic aspect.

During the first session on “The Nature of the Risks Facing the African Continent in Exceptional Circumstances” of the meeting with the main theme of “The Role of the Judicial Constitutional Review in the Development of Peoples”, I will try to provide a very general and succinct insight into the Turkish Constitutional Court's experience with the state of emergency.

As is well known, constitutions are social contracts that guarantee fundamental rights and freedoms, thus designating the exercise of sovereign power within the framework of democratic principles. 

Constitutional courts are institutions founded to realise the common goal of ensuring both individuals and the State to live on an equitable basis. Accordingly, the constitutional courts are primarily tasked with ensuring the functionality of constitutions, so-called social contracts that determine the exercise of sovereign power in the light of democratic principles by securing fundamental rights and freedoms.

As such, the theme of the state of emergency are of particular importance for constitutional jurists and practitioners because it directly relates to the exercise of fundamental rights and freedoms on the one hand, and to the State and the social order on the other.

Distinguished participants,

As is known, states of emergency are put in place to swiftly eliminate the causes of the situations in which ordinary procedures are or would be insufficient due to extraordinary circumstances. They are exceptional regimes that are resorted to in cases where the State, or public life, or public order is under grave threat or danger. When these regimes (state of emergency administrative procedures) are in place, measures that restrict fundamental rights and freedoms to a greater extent than is allowed for in the ordinary procedures may be taken to eliminate such threats or dangers. However, they are not extrajudicial regimes or, so to speak, regimes where the law is bypassed. These are regimes of an exceptional nature, albeit operating within legal framework, in which the statutory provisions relating to states of emergency are applied, and the employed practices are subject to judicial review.

The Turkish Constitutional Court has several times had occasion to highlight this point in its decisions. As expressed by the Court, “extraordinary procedures of the state of emergency do not mean arbitrary administration that excludes the law. The administrations during state of emergency are regimes that originate from the Constitution, are put into effect in accordance with constitutional provisions, and are subject to the supervision of the legislative and judicial bodies. Moreover, such administration should aim at protecting and upholding the constitutional order. Therefore, despite granting significant powers to the executive and restricting rights and freedoms to a great extent, it is ultimately a legal regime¹.

The Turkish Constitution, stating that everyone enjoys fundamental rights and freedoms, which are personal, inviolable and inalienable, enumerates these rights and freedoms, along with the inherent guarantees. It explicitly points out the principles and procedures relating to the restriction of these rights and freedoms under ordinary and extraordinary circumstances².

As laid down in Article 15 of the Turkish Constitution, in times of “war”, “mobilization”, “a state of emergency”, fundamental rights and freedoms may be restricted regardless of the guarantees provided for ordinary periods, which must, however, be to the extent required by the exigencies of the situation and comply with the obligations under international law. Nevertheless, it should be notably emphasised that according to the Turkish Constitution, even in times of “war”, “mobilization”, “a state of emergency”, “the right to life and the integrity of one’s corporeal and spiritual existence shall be inviolable; and no one shall be compelled to reveal his/her religion, conscience, thought or opinion, nor be accused on account of them. No offence and penalty shall be made retroactive; and nor shall anyone be held guilty until so proven by a court decision.” In this sense, the so-called core rights enshrined in the international conventions come to the forefront³.

Accordingly, even in the event of a state of emergency threatening the life of the nation, no one may be held in slavery or servitude, imprisoned solely for failing to fulfil her/his contractual obligations, or retried or punished for an offence for which she/he has been convicted or acquitted with a final judgment. Moreover, even during such periods, everyone has the right to recognition everywhere as a person before the law, and any measures to be taken during the state of emergency must not involve discrimination on grounds such as “race”, “colour”, “sex”, “language”, “religion” or “social origin”.

The most recent state of emergency regime in Türkiye was implemented in the aftermath of the coup attempt of 15 July 2016. The treacherous terrorist organisation known as the FETÖ staged a coup attempt with a heinous attack against our nation and state on 15 July 2016. This attempt was thwarted by the determined stance and resistance of our nation under the leadership of our state institutions. However, given that the said treacherous organization had infiltrated public institutions for years and it had atypical structure as well as crypto tactics, a much more comprehensive and rigorous fight was necessary.

In this regard, on 20 July 2016 a state of emergency was declared nationwide by the Government exercising the authority granted by the Constitution, within the scope of the State of Emergency Law, starting from 21 July 2016 until 18 July 2018. During this period, the declaration of a state of emergency enabled the implementation of extraordinary measures aimed at neutralizing the existing threat and purging the terrorist organisation from within the State.

As I stated above, these measures were taken and implemented in accordance with constitutional rules and principles. All branches of the State, including the executive, legislative, and judicial bodies, have performed their duties, which have been conferred upon them by the Constitution and laws, in compliance with these legal instruments. Although the decree-laws introducing the state of emergency measures were not subject to judicial review, they were subject to constitutionality review after they had been submitted to the Grand National Assembly of Türkiye (GNAT) for approval, thereby obtaining the status of law. Therefore, the state of emergency measures were introduced within a legal framework and subject to judicial review.

The Court has rendered significant judgments regarding the state of emergency measures, both in constitutionality review and individual applications. At this point, I would like to draw attention to an important point. It is set forth in the Constitution of the Republic of Türkiye that presidential decrees (decree laws before the constitutional amendment) issued during a state of emergency or in time of war shall not be brought before the Constitutional Court alleging their unconstitutionality as to form or substance⁴. Therefore, by virtue of the aforementioned provision, the Court did not examine the actions for annulment against the state of emergency decree-laws on their merits and dismissed them⁵. However, when it comes to the actions for annulment brought after the state of emergency decree-laws were granted the status of law following their submission to the GNAT for approval, the said decree-laws have been subject to constitutionality review, and then many annulment decisions have been rendered. In this regard, it should be noted that all decree-laws issued during the state of emergency period after 20 July 2016 have been enacted as law, and all of them have been subject to constitutionality review.

In addition, another significant point needs to be mentioned in this context. While the Court was unable to review a state of emergency decree-law regarding a state of emergency measure through constitutionality review, it was entitled to examine, within the scope of individual application, the implementation of the measures on concrete and individual basis⁶.

In the period after 20 July 2016, the Court first determined the procedure and the constitutional principles it would apply when addressing the restriction of fundamental rights and freedoms during the state of emergency periods, in its judgment of Aydın Yavuz and Others, no.  2016/22169, 20 June 2017. The matter was examined in detail in the said judgment⁷.

The rules, principles and procedures established in this judgment, together with the sub-principles later determined on the basis of rights, were subsequently applied in the examination of all individual applications, as well as in the constitutionality review process.

According to the case-law of the Court, in order for Article 15 of the Constitution to be applicable —in other words, for an interference with a fundamental right or freedom to be considered within the scope of the state of emergency regime— there must first be a state of emergency, which has been duly declared. However, the Court has no authority to review a duly declared state of emergency. Nevertheless, the Court is expected to examine whether emergency measures interfering with fundamental rights and freedoms are “to the extent required by the exigencies of the situation”, which is a very important principle.

The measure must be related to the state of emergency and must be aimed at eliminating the threats or dangers that led to the declaration of the state of emergency. In cases where such a relation cannot be established, Article 15 of the Constitution will not be applicable in the examination of applications regarding a measure constituting an interference with fundamental rights and freedoms, even if it has been taken during a period when extraordinary administrative procedures have been employed.

Following its judgment in the case of Aydın Yavuz and Others, the Court has introduced an additional principle in its subsequent constitutionality review decisions concerning this matter. According to this principle, the measure must be limited to the duration of the state of emergency⁸.

As previously emphasised, state of emergency measures must be “to the extent strictly required by the exigencies of the situation”. The Court has held that measures which allow for arbitrariness cannot satisfy this criterion. Furthermore, when assessing proportionality, it is essential to reach a conclusion by considering all the particular circumstances of each concrete case⁹.

During the state of emergency, nearly every measure implemented was brought before the Constitutional Court through individual application mechanism. The Court refined the general principles it had established in the case of Aydın Yavuz and Others by applying them to the specific measures contested under various rights and freedoms. In doing so, it effectively developed a substantial body of case-law pertaining to the restriction of fundamental rights and freedoms in a state of emergency.

Dear fellows,

As I conclude my remarks, I wish for the shared future of humanity a just and continuous peace across every corner of the world, a swift return to moral values and justice on the Earth and that justice prevails everywhere. As I emphasised at the beginning of my speech, a person seeking a long life must be just; if a state aspires to endure, let it uphold justice. Justice is the cornerstone of longevity.

As I finish my words, I would like to express my sincere hope for an end to all actions against human dignity in our world. On behalf of myself and the members of the Constitutional Court of the Republic of Türkiye, I extend my respectful greetings to you all. May you and your loved ones have a blessed and long life with good health, peace, and prosperous.

Thank you for your attention.

¹ See the Constitutional Court’s decision, no. E.2016/167, K.2016/160, 12 October 2016, § 4.

²  II. Restriction of fundamental rights and freedoms

Article 13- (As amended on 3 October 2001 by Article 2 of Act No. 4709)

Fundamental rights and freedoms may be restricted only by law and in conformity with the reasons mentioned in the relevant articles of the Constitution without infringing upon their essence. These restrictions shall not be contrary to the letter and spirit of the Constitution and the requirements of the democratic order of the society and the secular republic and the principle of proportionality.

IV. Suspension of the exercise of fundamental rights and freedoms

ARTICLE 15- 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.

Even under the circumstances indicated in the first paragraph, the individual’s right to life, the integrity of his/her corporeal and spiritual existence shall be inviolable except where death occurs through acts in conformity with law of war; no one 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 ruling.

³ For instance, Article 4 § (2) of the International Covenant on Civil and Political Rights and Article 15 § 2 of the European Convention on Human Rights, as well as Article 4 of Protocol no. 7 to the European Convention on Human Rights stipulate that certain rights and freedoms that are not included in Article 15 of the Turkish Constitution cannot be subject to derogation. 

⁴ See Article 148 of the Constitution.

⁵ See the Constitutional Court’s decision no. E.2016/166, K.2016/159, 12 October 2016, §§ 12-23.

⁶ The Court has considered that Article 148 of the Constitution does not preclude individual applications challenging state of emergency measures, nor does it prevent the Court from examining them (see Aydın Yavuz and Others ([Plenary], no. 2016/22169, 20 June 2017, § 80). In this regard, it should be noted that a significant number of individual applications have been filed against state of emergency measures, and the Court has rendered many violation judgments in these cases.

⁷ In the aforementioned judgment of Aydın Yavuz and Others, the characteristics of the FETÖ terrorist organization, which is considered to be the perpetrator of the coup attempt of 15 July (the terrorist organization behind the coup attempt), were set out in detail, and these findings were later referenced by national and international authorities, notably the European Court of Human Rights.

⁸ Measures that extend beyond the duration of the state of emergency, even if they were implemented during that period, cannot be classified as state of emergency measures. See Constitutional Court’s decision, E.2016/205, K.2019/63, 24 July 2019, §§ 15-17.

⁹ See Aydın Yavuz and Others, §§ 196-202.