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Réf. DC 092(2020)

Venice Commission calls on government to repeal decisions that have undermined democratic self-government in South-East Turkey

Strasbourg, 19.06.2020 The Council of Europe’s legal experts of the Venice Commission adopted an opinion following a request from the Congress of Local and Regional Authorities of the Council of Europe concerning decisions on elected candidates and mayors in South-East Turkey which had been taken after the 31 March 2019 local elections.

These decisions denied a number of successful candidates a mayoral mandate and removed from office the mayors of the metropolitan cities Diyarbakır, Mardin and Van and replaced them with Governors of each region as “trustees”.

Based in part on a delegation visit to Turkey in February this year, the opinion adopted today notes that both the decisions by the Supreme Election Council of 11 April 2019 and by the Ministry of the Interior of 19 August 2019 on the replacement of elected candidates and mayors are linked to the measures taken under the state of emergency that had been enacted following the failed coup attempt of 15 July 2016.

In the first situation, candidates banned from public service by virtue of emergency decree law were ex post considered ineligible, although their candidacies had been validated.

In the second situation, mayors were suspended because of terrorism-related charges, on the basis of legal amendments introduced by emergency decree law, although they had been considered eligible at the time of elections when many of the investigations or charges against them had already been initiated.

The Venice Commission is aware of the terrorist threat in the South-Eastern part of Turkey. Such a threat may justify unusual measures, including the removal of elected officials who might use their office to favour terrorist activities. Any such measures must respect relevant legal provisions, be based on evidence, and be proportionate to the aim pursued.

The Venice Commission furthermore acknowledges, as it has done on previous occasions, that in the immediate aftermath of the failed coup attempt, when the Turkish authorities were confronted with a dangerous armed conspiracy, certain extraordinary measures may have been required in Turkey.

That said, the state of emergency ended in 2018. It is a matter of concern that based on the framework of the emergency regime changes of a structural nature to the system of local government in place in Turkey have been introduced on a permanent basis. The necessity for these changes appeared doubtful even during the state of emergency. That concern is of course all the greater now that the state of emergency period is at an end.

The ongoing effects of the previous emergency regime give rise to "serious concerns", according to the opinion. In addition, both sets of decisions are in the Venice Commission’s opinion incompatible with basic principles of democracy – the respect for the free expression of the will of the voters and the rights of elected officials – and of the rule of law – including legality and legal certainty.

The decisions by the Supreme Election Council are inconsistent with international norms and standards and should be reversed. It is crucial for the proper functioning of democracy that the candidates who received the highest number of votes are deemed elected, and not second placed candidates from other political parties.

The decisions by the Ministry of the Interior are based on state of emergency-rooted legislation, which allows for replacement of elected mayors by government officials. They undermine the very nature of local self-government and also should be repealed.

The opinion includes the following recommendations:

A.    Make it clear in the law that ineligibility of an election candidate on the grounds of prohibition from public service requires a final criminal conviction by a court for a serious offence as well as an express decision on the candidate’s ineligibility prior to the elections.

B.    Recognise as elected the six mayoral candidates who had received the highest number of votes during the local elections of 31 March 2019 in the district municipalities of Diyarbakır, Erzurum, Kars and Van but had been denied the mayoral mandate by decision of the Supreme Election Council of 11 April 2019.

C.    Reinstate the mayors of the three metropolitan cities Diyarbakır, Mardin, and Van who had been suspended by decision of the Ministry of the Interior of 19 August 2019; or implement an alternative solution which respects the will of the voters, such as allowing the respective municipal councils to choose a replacement mayor or providing for repeat elections in the electoral zones concerned.

D.    Repeal the amendments to Article 45, paragraph 1 of the Municipality Law which had first been introduced by Decree Law No. 674 and had been approved by Parliament in November 2016.

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