Venice Commission calls curfews in Turkey ‘unconstitutional’

The commission completed drafting its opinion on the compatibility of the legal framework governing curfews in Turkey with European standards. The opinion was requested by the chair of the Monitoring Committee of the Parliamentary Assembly of the Council of Europe (PACE) on March 15 and the commission prepared to submit it in its plenary session in June.

“The commission [therefore] notes that the curfews imposed since August 2015 have not been based on the constitutional and legislative framework which specifically governs the use of exceptional measures in Turkey, including curfew. To comply with this framework, any curfew measure should be associated with emergency rule, as provided for in Articles 119 to 122 of the constitution,” said the commission in its draft opinion obtained by Hürriyet Daily News.

Article 119 of the Turkish constitution on extraordinary administration procedures covers the “declaration of state of emergency because of natural disaster or serious economic crisis,” while Article 122 outlines “martial law, mobilization and state of war.”

“In the Venice Commission’s opinion, the Provincial Administration Law, on which decisions imposing curfews were based, and the decisions themselves do not meet the requirements of legality enshrined in the constitution and resulting from Turkey’s international obligations in the area of fundamental rights,” said the draft.

The Venice Commission has listed certain recommendations “in particular” for the Turkish authorities to implement in order to “remedy” this situation.

 
To Ankara: ‘No longer use Provincial Administration Law as a legal basis’

Accordingly, the Venice Commission invited Ankara to “no longer use the provisions of the Provincial Administration Law as a legal basis for declaring curfews and to ensure that the adoption of all emergency measures including curfews is carried out in compliance with the constitutional and legislative framework for exceptional measures in force in Turkey, showing due regard for the relevant international standards and complying with national rules and international obligations with regard to the protection of fundamental rights; to review the legal framework on states of emergency to ensure that all exceptional decisions and measures such as curfew taken by the authorities when a state of emergency is formally declared are subject to an effective review of legality including, in particular, consideration of their necessity and proportionality; and to introduce all the necessary amendments to the State of Emergency Law so that there is a clear description in the law of the material, procedural and temporal arrangements for the implementation of curfews, particularly the conditions and safeguards to which they must be subject (including parliamentary and judicial supervision).”

The Venice Commission noted they remained at the disposal of the Turkish authorities for any assistance they may require.