Notice of Derogation from the ECHR (August 1990)

DEROGATIONS FROM THE ECHR

Turkey

PERMANENT REPRESENTATION OF TURKEY TO THE COUNCIL OF EUROPE

06 August 1990

NOTICE OF DEROGATION IN CONFORMITY WITH ARTICLE 15 OF THE EUROPEAN CONVENTION OF HUMAN RIGHTS

1. The Republic of Turkey is exposed to threats to its national security in South East Anatolia which have steadily grown in scope and intensity over the last months so as to (sic) amounting to a threat to the life of the nation in the meaning of Article 15 of the Convention.

During 1989, 136 civilians and 153 members of the security forces have been killed by acts of terrorists, acting partly out of foreign bases. Since the beginning of 1990 only, thenumbers are 125 civilians and 96 members of the security forces.

2. The threat to national security is predominantly occuring (sic) in provinces (*) of South East Anatolia and partly also in adjacent provinces.

3. Because of the intensity and variety of terrorist actions and in order to cope with such actions, the Government has not only to use its security forces but also take steps appropriate to cope with a campaign of harmful disinformation of the public, partly emerging from other parts of the Republic of Turkey or even from abroad and with abuses of trade-union rights.

4. To this end, the Government of Turkey, acting in conformity with Article 121 of the Turkish Constitution, has promulgated on May 10, 1990 the decrees with force of law No. 424 and 425. These decrees may in part result in derogating from rights enshrined in the following provisions of the European Convention for (sic) Human Rights and Fundamental Freedoms: Articles 5, 6, 8, 10, 11 and 13. A descriptive summary of the new measures is attached hereto. The issue of their compatibility with the Turkish Constitution is presently pending before the Constitutional Court of Turkey.

5. The Government of Turkey will inform the Secretary General of the Council of Europe when the measures referred to above have ceased to operate.

6. This notification if (sic) given pursuant to Article 15 of the European Convention on Human Rights

(*) The provinces are Elazig, Bingol, Tunceli, Van, Diyarbakir, Mardin, Siirt, Hakkari, Batman, Sirnak. ----------

DESCRIPTIVE SUMMARY OF THE CONTENT OF THE DECREES WHICH

HAVE THE FORCE OF LAW No. 424 and 425

A.By virtue of the decrees having force of Law No. 424 and 425 on the state of emergency region, the state of emergency region governorship has been empowered with the following additional powers.

1.The Ministry of Interior, upon the proposal of the Governor of the state of emergency region can temporarily or permanently ban the publication (regardless of the location of the printing press), which is prone to cause a serious disruption in the public order of the region or excitement of the local people or to handicap the security forces in performing their duties by misinterpreting the regional activities. This also includes, if necessary, the power to order the closure of the printing press concerned.

2. The Governor of the state of emergency region can order persons who continuously violate the general security and public order, to settle at a place to be specified by the Ministry of Interior outside the state of emergency region for a period which shall not exceed the duration of the state of emergency. At their request, the persons concerned may receive financial aid from the Development and Support Fund. The particulars for this assistance shall be determined by the Ministry of Interior.

3. The Governor of the state of emergency region (or the delegated provincial Governor) can suspend (up to 3 months) or require prior permission for certain labor disputes related activities like strike and lockout.

4. The Governor can also ban, or take preventive measures against certain activities like destruction, looting, boycotting, slowing down of work, restricting the freedom of work and closing down of business.

5. The Governor of the state of emergency region can order the temporary or permanent evacuation, change of place, regrouping of villages, grazing fields and residential areas for reasons of public security.

6. The Governor of the state of emergency region can order the relevant public institutions in the state of emergency region to transfer permanently or temporarily to other positions their public officials who are deemed to be harmful to general security and public order, the concerned public official shall remain subject to the provisions of the special law on civil service applicable to him.

B. No legal claims of criminal, pecuniary or legal nature can be brought against, nor can any legal steps be taken with the judicial authority for this purpose in respect of any decision taken or any act performed by the Minister of Interior, the Governor of the emergency region and other governors, when exercising the power under the decree No. 424 having force of law.

C. No interim decision to suspend the execution of an administrative act can be taken during proceedings of an administrative suit which has been filed against the act(s) performed when exercising the power given by the law of emergency No. 2935 to the Minister of Interior, the Governor of the state of emergency region and the provincial governors.

D. The suit of nullity can not be filed against administrative acts performed by the Governor of the emergency region when exercising the power given to him under the decree having force of law No. 285.