Expression Interrupted

Journalists and academics bear the brunt of the massive crackdown on freedom of expression in Turkey. Scores of them are currently subject to criminal investigations or behind bars. This website is dedicated to tracking the legal process against them.

Academics denied reinstatement despite Constitutional Court judgment

Academics denied reinstatement despite Constitutional Court judgment

According to academics and lawyers, who evaluated the recent rejection decisions from the State of Emergency Procedures Investigation Commission, the timing of the decisions is related to the process before the ECtHR

 

MELTEM AKYOL

 

“We are not in a position to get permission from those so-called academics. They need to know their limits.” Following these words of President Recep Tayyip Erdoğan in January 2016, a process filled with investigations, dismissals, exiles and international travel bans has begun for the academics, who signed the statement "We will not be a party to this crime." Moreover, all legal remedies for academics were closed. The only door left open was the State of Emergency (OHAL) Procedures Investigation Commission. However, with the decisions announced in the last days, the Commission rejected the applications of Peace Academics to return to their jobs one by one. Thus, at the end of five years, it was back to square one. Administrative court cases will now begin.

 

Let's remember the process and then lend an ear to academics and lawyers.

 

From June to November: The five months that shook Turkey

 

Let's remember the run-up to Turkey’s 7 June 2015 elections. The words of President Erdoğan, who was running the election campaign, "Give us 400 deputies and this matter will be resolved peacefully," seemed to be the precursor of what was to come. Turkey went to that election in the shadow of the bomb attack on the rally organized by the Peoples' Democratic Party (HDP) in Diyarbakır on 5 June. Five people were killed and nearly 400 injured in the attack, which was claimed by ISIS. It was clear that it would not be resolved "peacefully," as the Justice and Development Party (AKP) won 40.8 percent of the votes in that election, losing its parliamentary majority for the first time since 2002. Tensions were rising as the coalition discussions continued.

 

After the attack in Diyarbakır, another attack took place in Şanlıurfa. On 20 July 2015, 33 people lost their lives and more than 100 were injured as a result of the suicide bomb attack by ISIS in the Suruç district. Only two days after the Suruç massacre, an attack took place that brought the end of the resolution process and has not been shed light on yet. In Ceylanpınar, two police officers were shot in the head and killed in their homes. The PKK first made a statement claiming responsibility, but later announced that they had nothing to do with the incident. And after that date, the tension continued, turning into conflicts. The news of the deaths was followed by the "self-governance" declarations.

 

And curfews came one after another. This time, the people gathered in Ankara to call for "peace" were targeted while the conflict was going on. On 10 October 2015, 103 people were killed and hundreds were injured in the suicide bombing attack by ISIS. In the November 1 elections held in this atmosphere, the AKP came out of the ballot box as the sole ruling party with 49.5 percent of the votes and 317 deputies.

 

“We will not be a party to this crime”

 

While the curfews continued, on 11 January 2016, a group of academics published a statement titled "We Will Not Be a Party to This Crime." The declaration, which was signed by 1,128 academics, demanded that civilian deaths be stopped and peace be ensured. The very next day, President Erdoğan described the signers of the declaration as “a mob that calls itself academics” and “intellectual spoofs” and accused them of “treason.” Signatory academics made headlines in the media close to the government and were targeted. The Interuniversity Council Presidency made a statement regarding the declaration that "academic freedom cannot be abused as a means of threatening the existence, security and perpetuity of a country." This statement was followed by counter-declarations made by many universities. After that, universities started administrative proceedings against the signatory academics, and investigations were launched by the prosecution offices immediately afterwards.

 

As part of the investigations, some academics were taken into custody. Some of them were suspended by the administrations of the universities where they worked. Meanwhile, the number of academics, who supported the declaration increased from 1,128 to 2,212. After the declaration of the state of emergency in July of the same year, the expulsion period began for the signatory academics, this time with the decrees (KHK). Hundreds of signatory academics were expelled from the institutions they worked with the state of emergency decrees, their passports were confiscated, and they were banned for life from working in the public sector and practicing their profession as academics.

 

Trials against 822 academics: Different sentences for the same statement

 

Criminal trials against the signatories known as "Peace Academics," began on 5 December 2017. Academics were accused of "making propaganda for a terrorist organization." Although there was only one declaration, academics were tried before different courts. Of the two thousand 212 people, who signed the declaration, 822 people faced accusations. In 204 cases that were concluded, academics, who were tried for the same statement, were given different prison sentences, ranging from 1 year and 3 months to 3 years.

 

Violation decision by the Constitutional Court

 

The Constitutional Court finally decided on the individual applications of the sentenced academics on 26 July 2019. It was ruled that convicting the academics for signing the declaration was a violation of their freedom of expression. Subsequently, acquittals began to emerge one after the other from the courts that had previously given prison sentences for “Peace Academics.” With those acquittals, the academics were absolved from guilt before the judiciary, however they could not return to their job yet. For this reason, eyes turned to the OHAL Procedures Investigation Commission, which evaluates the applications regarding the dismissals during OHAL that 460 dismissed academics brought their complaints.

 

The OHAL Procedures Investigation Commission announced on 28 September 2021 that it had decided on 118,415 out of 126,758 applications concerning dismissals with KHK, and that 103,365 of them were rejected. Ahsen Deniz Morva, Hakan Ongan, Ertan Ersoy, Erhan Keleşoğlu, Nail Dertli and Onur Can Taştan, who signed the statement "We will not be a party to this crime,” were among the names whose applications were rejected.

 

“Rejection or acceptance, both would be political decisions, not legal”

 

One of the signatories, Dr. Onur Can Taştan was a research assistant at Ankara University, Faculty of Political Sciences (SBF), Department of Labor Economics and Industrial Relations. Taştan, one of the persons in the second group signing the declaration, eight months after he signed, he was dismissed with the Decree No. 672 issued on 1 September. Four years after his application to the OHAL Procedures Investigation Commission for a decision of giving back to duty, in 2017, his application was rejected.

 

Taştan, whom we talked to after the rejection, thinks that the decision of the Commission is political, not legal.

 

Taştan says, “I will say at the beginning what I will say at the end, whether the decision is rejection or acceptance, it would be a political decision,” and thinks that the decision is related to the ongoing process before the European Court of Human Rights (ECtHR).

 

“Of course, we had our senses and predictions about when the decision would come out. We partly knew that the Commission would make a decision when it was approaching the end of its term, and that the last files it would examine would be ours. From this point of view, I was expecting that the process would take a while, frankly,” said Taştan, adding: “But of course, there is an ongoing ECtHR process. I think it is very likely that the explanation of this timing is the ECtHR process; the ECHR demanded a defense from Turkey, and these refusals were given immediately afterwards. Obviously, the government will make a defense to the ECtHR saying that "the Commission has taken such a decision of refusal and thus domestic remedies have not been exhausted.”

 

Evaluating the applications of 81 academics in 43 applications, the ECtHR asked the government a defense regarding these applications in July. The ECtHR requested information from the government on issues such as whether the OHAL Procedures Investigation Commission is an effective remedy and especially considering the length of the review process, whether it is possible to reinstate the loss of applicants even if their applications are accepted.

 

According to Taştan, the judgment of the Constitutional Court emphasizes that the declaration is not only a matter of freedom of expression, but also of academic freedom: "The Constitutional Court did not just say 'this is a matter of freedom of expression,' but went beyond that and said 'this is a matter of academic freedom, any sanction against it is a problem of freedom of expression.' In other words, it also guided the OHAL Procedures Investigation Commission. But the Commission did not take this into account, as we are already in a country where the judgments of the Constitutional Court are not implemented much. In this case, can it be said that the decision is legal?”

 

“Five years later, we are batting zero”

 

Taştan says that the judicial process will start again after the rejection decision. “We saw that a rejection decision was made in the system, but the decision has not been communicated to us yet. Of course, we will file a lawsuit after it is done, but the process is clear. It has been five years since our dismissal and four years since our application to the Commission. Now we are back to the beginning,” says Taştan.

 

Taştan went to Sweden with his wife, who, like himself, is a dismissed academic, with various research scholarships. He is currently in Germany with his wife. His wife is working and he is unemployed.

 

“We will see after five years if it is written in the decision about what we are accused of”

 

Dr. Nail Dertli was also dismissed from the Faculty of Political Sciences of Ankara University on 1 September 2016 with the Decree No. 672. According to the Decree, he was accused of "having affiliations with terrorist organizations," but during the past five years, he could not find out what was the basis for this accusation. Dertli begins by telling the process: “We asked Ankara University, 'with which terrorist organizations do you associate us.' From there, we were not given any answer, nor was there an explanation. We filed a lawsuit in the administrative court, the OHAL Procedures Investigation Commission had not been established. When the Commission was established, the process before the administrative court stopped. We were asked to present a defense to the Commission, but no charges were brought against us. We gave a letter to the Commission in which we stated that there were no charges against us and that we were not "members of a terrorist organization." It has been more than four years since the Commission was established, it has been five years since our dismissal. We were punished, without a decision, without a justification. And in this process, we were prevented from using legal remedies.”

 

Dertli explains that the principle of presumption of innocence was violated during this process, and that they were not only associated with terrorist organizations but also could not learn what the charges against them were for five years. “This includes this decision,” Dertli says, referring to the Commission's refusal. He says, “It has not been communicated yet, let's see, when the Commission decision reaches us – if it is written in the decision of course – we will be able to see for what reason we were dismissed after five years.” Stating that the rejection decision is political, Dertli says: “The Constitution has been suspended for a very long time, and the provisions of the Constitution have almost no application in our daily lives anymore. These issues now depend on the word 'one man.' Now the judicial process will begin. I hope to at least see the accusations and respond to that."

 

Reminding that the pressure on the activities of scientists at Ankara University started long before the dismissals, Dertli notes that the pressure increased especially after the Gezi Park protests. “All of this was actually an effort to build an oppressive, conservative, market-based university system. Yes, this has always existed, but it has increased with the AKP, it has become systematic,” says Dertli: “We are living in a period when trustees can be appointed even to a university like Boğaziçi. But despite this, around two thousand academics stood behind the demand for peace and academic freedom. This goes down in history.”

 

The judgment of the Constitutional Court is binding for every institution

 

What will happen next, what kind of process awaits academics, moreover, how does the OHAL Procedures Investigation Commission reject the requests for reinstatement when the Constitutional Court has ruled that freedom of expression has been violated? According to Attorney Meriç Eyüboğlu, the rejection decisions are part of the non-implementation problem of the Constitutional Court's decisions.

 

Eyüboğlu says: “We have been living in a period where the decisions of the Constitutional Court are not implemented by the courts. Another institution has been added to the courts, now we see that the decisions of the Constitutional Court are not taken into account by the OHAL Procedures Investigation Commission. However, the law is very clear, the decisions made by the Constitutional Court are binding on everyone, which includes the judicial authorities and the OHAL Procedures Investigation Commission. Therefore, after the decision of the Constitutional Court of July 2019on the declaration ‘We will not be a party to this crime’ where it was held that ‘it is the use of freedom of expression and prosecution of the academics, who signed this declaration constitutes a violation of rights,’ all legal processes against academics, who were dismissed from their positions in public and private universities, should have been closed. Because the decision has established that there is no crime here, so the reason for dismissal is legally wrong and meaningless.”

 

"Sham fight"

 

Eyüboğlu is also of the opinion that the timing of the rejection decisions is related to 43 applications pending before the ECtHR. Stating that all of the applications rejected by the commission are related to the applications pending before the ECtHR, against which a defense is requested from the government, Eyüboğlu comments on this issue as follows:

 

“We waited for the procedure to be carried out, we got acquittal decisions, we applied to the OHAL Procedures Investigation Commission with these decisions. When the examination processes were not concluded, we applied to the Constitutional Court once again, saying that "Despite the Constitutional Court's violation decision and acquittals, the OHAL Procedures Investigation Commission has been keeping the applications pending." We did not receive any results from this application. While the time was running like this, the ECtHR asked the government to present a defend regarding 43 applications lodged with it. Within the time given to the government for its defense, decisions about the academics, who were included in these 43 applications, started to come out from the OHAL Procedures Investigation Commission. This timing is certainly not a coincidence. It's an understatement to say it's not just a coincidence, we're dealing with a very sham fight. Because the rejection of the applications before the State of Emergency Procedures Investigation Commission means that a new legal process awaits us. Now, it is necessary to file a case before the Administrative Court in Ankara for the reversal of this rejection decision. Therefore, we will have passed into another phase in terms of the government's argument that 'domestic remedies have not been exhausted.'

 

“Opportunity to beat about the bush for the ECtHR”

 

According to Eyüboğlu, this situation is also favorable for the ECtHR: “With this step, the government has acquired a defense argument before the ECtHR, but the ECtHR tends to turn a deaf ear as well. Because in any of the applications regarding OHAL, I do not talk only about those that belong to academics, we could not get a positive decision from the ECtHR in all the applications since 2016. Each time it returned the applications, pointing to the domestic law, so to speak, got rid of them. Therefore, this process both gave the government a defense argument, but also gave the ECtHR an opportunity to beat about the bush.”

 

Eyüboğlu reminded that during the four-year period with the dismissals that started in September 2016, applications have been made to the administrative courts, the Constitutional Court and the ECtHR, and said, “The Constitutional Court has already given a decision of violation, the Council of State and the administrative courts have said that they are not competent, that is, the dismissed academics were left with no other legal remedy than to apply to the OHAL Procedures Investigation Commission”.

 

Eyüboğlu concludes her words as follows: “Since 406 signatory academics were dismissed due to this declaration, the Constitutional Court's decision of violation shows that those dismissals themselves have no legal basis. Therefore, the legal situation is very clear, but we are faced with a tremendous arbitrary practice. We do not yet know the reason for the rejection, we do not know whether we will see the reason when we file a case with the administrative court. I am very curious about what excuse they will use for refusal despite the decision of the Constitutional Court.”

 

Facts that numbers do not show

 

The academics we spoke to avoided going into their own personal experiences, saying, "There are people in Turkey who have bigger problems than us because of the dismissals." However, although they do not tell, recent studies give important clues about the cost of this process.

 

Let's conclude with a few quotes from the Human Rights Foundation of Turkey (TİHV) Academy's reports "The State of Emergency of the University: A Study on the Destruction of the Academic Environment" and "Expulsions of Academicians: Rights Violations, Losses, Trauma and Empowerment Processes":

 

* Domestic and international academic assignments of the signatory academics were canceled, research permits, incentives and publication supports were not given. Scientific research projects were canceled. Associate professorship applications have been suspended. Classes were canceled without any official decision, or they were not actually opened, and no staff was given.

* Academics for Peace, whose working rights have been violated, and, who have been directly targeted by people starting from the top political actors and spreading widely, were forced to do more than one job in order to earn their living and maintain their lives.

* Many of the academics experienced relocations that directly affected their social lives, such as changing districts, neighborhoods, and living with their families after their dismissal.

* Of the academics who were dismissed for signing the peace declaration and whose rights were violated, 68.8 percent had sleep problems, 61.9 percent had difficulty concentrating and attention, 58.3 percent had emotional withdrawal or depression, 17.4 percent is experiencing shortness of breath.

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