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Year One: Reflections on Turkey’sLegal Responses to the COVID-19PandemicBa#ak Çal# 2021-03-16T09:00:00Ever since the first officially reported COVID-19 case in the country in March in 2020,Turkey, like most of the world, has taken measures to control the pandemic. Themeasures taken by Turkey included limitations on freedom of movement, closingschools and moving to online teaching at schools as and universities, restrictionson business opening hours, cessation of prison and detention visits, prohibition ofresignation for healthcare staff, and, more stringently, the introduction of curfews.Turkey’s legal response to the pandemic has had four key features in the first year.First, these wide-ranging responses have primarily been regulated by centralizedexecutive measures in the forms of presidential circulars, ministerial circulars andpublic announcements alongside the decisions of provincial public health boards andprovincial pandemic boards. Second, restrictions on fundamental rights in Turkeyhave followed a differentiated response in law and practice. The measures in placehave differentiated between individuals based on their ages and between businessesbased on the nature of the businesses. The application of measures has also variedin practice: for example, whilst some public gatherings in closed and open spaceshave been banned, others were allowed to take place. Third, there has been almostno Parliamentary involvement in, and very limited judicial oversight so far of, thesemeasures. Finally, those who have criticized the legality and the adequacy of themeasures have been subject to criminal legal proceedings.Legal Basis of Turkey’s Pandemic MeasuresAs soon as the first coronavirus case was reported in Turkey in early March 2020,the Government rapidly resorted to wide ranging extraordinary administrativemeasures. Unlike other countries, in particular those states in the Council of Europe,the Government did not take the path of declaring a state of emergency as providedfor under Article 119 of the Constitution. Instead, it relied on the provisions of existingpieces of law, most notably  the Law on Public Health No. 1593 (LPH) and the Lawon Provincial Administration No. 5442 (LPA) to justify the wide range of executivemeasures restricting fundamental rights.Under the Turkish Constitution, limitations to constitutional rights must be eitherenacted directly through an act of Parliament in the shape of a statute or basedon the express authorization of such statute. The government’s direct and indirectreliance on already existing laws, therefore, have raised questions as to the legalbasis of wide-ranging restrictions fundamental rights under the Constitution.- 1 -Of these laws, the LPH, dates back to 1930. It is not a piece of law that has seenmuch practical application in the past ninety years and can best be qualified as‘rusty’ to meet a pandemic erupting in 2020. Specifically, the law allows for takingmeasures with respect to individuals ‘who are infected, suspected of being infected,or have been determined to be contagious,’ rather than measures affecting thepopulation as a whole. This has raised concerns as to whether this legislation canbe the legal basis of extensive actions restricting constitutional rights by treatingeveryone as “suspected of being infected” to combat the pandemic.The Law on Provincial Administration of 1949 — most recently amended in 2018 —on the other hand confers wide ranging powers on Turkish provincial administrativeauthorities to take all necessary measures to maintain public safety and order,including the power to prohibit anyone (suspected of being a safety danger)from entering and exiting provinces of Turkey for fifteen days, and the power totemporarily close public places. Here, too, it has been noted that treating everyoneliving in Turkey as a safety danger requires an extraordinarily broad interpretation.Even then, this law does not have a clear legal basis for the authorization of curfewsor the imposition of inter-city travel bans for longer periods of time, or to restrictbusiness hours.Despite these important concerns as to the legal basis of the restrictions as requiredby the Constitution, Turkey saw the adoption of countless ministerial circular ordersto handle the pandemic. Some of the measures taken cannot be justified in any wayunder the legal frameworks above. For example, the mortarium on the resignationof healthcare staff is a measure can only be taken when a state of emergency isdeclared. However, the governance of the pandemic has so far proceeded by wayof adoption of ‘state of emergency’-like measures, by way of executive decisionsand circulars, despite the explicit Constitutional law requirements in place for theintroduction of rights restrictions.Differentiated Responses Across Age and RiskGroups, Types of Business, Gatherings andAssembliesThe Turkish response to the pandemic so far has been based on the introductionof differentiated measures of rights restrictions, based on the age and vulnerabilityof individuals. At the start of the pandemic, Turkey became the first country in theworld to impose a 24-hour curfew on all individuals over the age of 65. This meantthat the population over 65 were unable to leave their homes for weeks on end,even for a short stroll. Subsequently, this differentiated response was recalibrated.Currently, those over 65 are not able to leave their homes save for a three-hourwindow during the day and they require special permits for inter-city travel. Similarmeasures have been put in place restricting the movement of individuals underthe age of 20. At the same time, Turkey imposed weekend curfews requiring thewhole population to remain indoors at the weekends. Whilst the executive circularsmake clear who cannot leave their homes, the framework in place for how the stateauthorities will support those locked in and in need is less clear. This differentiated- 2 -response primarily aims to keep the Turkish economy going, as those in the activeworkforce are not affected by the restrictions. The restrictions also do not apply torestricted age groups if they are members of the workforce.The authorities have also pursued a differentiated response to business openinghours with the aim of keeping businesses open as much as possible or closingsome (such as restaurants and cafes),but keeping others open (such as hotels andshopping malls). Some of these decisions have been criticized on grounds thatthey favor the wealthy segments of the society. For example, during the winter of2020, hotels received special exemptions to remain open and admit customers overweekends. This has meant that whilst the whole population was under a curfewand face heavy fines (ranging from 392 to 3.150 TL – roughly 45 to 367 EUR) ifthey leave their homes, those individuals with reservations in ski resort hotels wereexempted from the country-wide weekend curfew.Differentiation in responses also extended to the enforcement of restrictions inpractice. This has been most visible in the case of freedom of assembly. In manyinstances, authorities issued bans on peaceful protests by rights activists includinglawyers, healthcare workers and students, and arrested protesters. However, despiteall the legal restrictions in place, the Turkish Government itself did not shy away fromorganizing a number of mass gatherings over the past year. The inaugural Fridaypublic prayer in Hagia Sophia after its conversion to a mosque in July 2020 saw over350,000 people attending. More recently, the ruling Justice and Development Party(AKP) has organized a large number of party congresses in multiple cities, wheresocial distancing rules were not enforced and attendance was praised.Whilst the legitimate aim of all the enforced differentiated responses is the protectionof public health, they all raise questions concerning the proportionality of themeasures with the legitimate aim alongside concerns of discriminatory enforcementof rules to government supported activities and others. With regard to the long-term lock-in measures for over 65s, a central question is whether this is the mostsuitable response to protect individuals from the risk of the pandemic given the risksto physical and mental health posed by long term confinement. As we see in thesection below, however, the legal appraisal of these executive measures from theperspectives of legality, proportionality and non-discrimination by Turkish courts hasbeen limited in the first year.Lack of Legislative Oversight and Limited JudicialOversightThe pandemic measures in Turkey are marked by the lack of an oversight role forthe legislature and the courts. Already with the coming-into-force of Turkey’s newpresidential system in 2018, which is organized around vast presidential powers atthe expense of the other branches of government, there has been regression in theParliament’s legislative and oversight functions. Under the pandemic, this regressionof oversight and accountability of the executive deepened. Presidential decrees havebeen the main mechanisms of rule-making.- 3 -One exception to parliamentary activity with respect to the pandemic was theintroduction of an early release legislation to reduce the chronic overcrowding inTurkey’s prisons. But this law deliberately excluded thousands of prisoners chargedunder overly broad terrorism offences. The law was passed in April 2020 withoutany significant amendments despite persistent calls from opposition parties and civilsociety groups to broaden its scope.There has not been a flurry of legal challenges before Turkish courts regarding thewide-ranging measures taken to address the pandemic in the first year. An individualapplication (Senih Özay) lodged before the Turkish Constitutional Court (TCC)challenging the legal basis of the pandemic-related curfews imposed on citizens over65 was found inadmissible in June 2020. In its decision, the TCC noted that curfewin its nature is an administrative measure and that the applicant should seek remedybefore the administrative courts. As reported in Turkish media in January this year,an Istanbul-based association has now turned to the Istanbul Administrative Courtfor the annulment of the curfew on senior citizens alleging its conflict with Article 23of the Turkish Constitution (freedom of movement).Some individuals, however, have successfully challenged the hefty fines imposedon them by the police for breaking COVID-19 rules on the ground that these fineslacked a clear legal basis. For example, in one case, the Turkish Court of Cassationstruck out an administrative fine imposed by the police on an individual for allegedlybreaking COVID-19 rules by not wearing a mask on the ground that they do notpossess such authority under the provisions of LPH and the LPA in conjunction withthe Turkish Misdemeanor Law. Invoking this decision, a Turkish peace court laterinvalidated another fine issued by the police to an individual for breaching the curfewrules. These decisions, however, do not alter the fine regime, but merely instruct theexecutive to point to other legal provisions when issuing fines.A key area of administrative law litigation was the central government’s decision tolimit the ability of the mayors of the three metropolitan cities of Turkey — Istanbul,Ankara and Izmir, respectively —to maintain local services and distribute socialassistance to those in need due to COVID. Significantly, these mayors are allmembers of the opposition party, CHP. Several initiatives taken by the CHP mayorsto fundraise for families-in-need affected by the lockdown received harsh criticismby President Erdogan, who accused the mayors of trying to create ‘a state within astate’. Following the president’s cue, in an effort to prevent opposition municipalitiesfrom raising funds, the Turkish Interior Ministry issued another circular, banningthe fundraising campaigns, blocking the collected funds in state-owned banks andinforming the CHP mayors that they need clear authorization from local governorsto carry out COVID-related social projects. The opposition mayors petitioned theTurkish Council of State (TCS) requesting for an order of stay of execution ofthis circular, however the TCS dismissed the request. The Court is expected toissue a full judgment in this case later this year. This litigation points to the lack ofintolerance to any positive measures that are not co-ordinated by the ruling partythrough the new presidential system.- 4 -Criminalization of Responses to Criticism ofMeasures Taken and Increase in Rights RestrictingLawsSince March 2020, there have been increasing concerns as to how COVID-19has been handled in Turkey. The contradicting numbers released by Governmentofficials and the under-reporting of coronavirus cases/deaths have raised seriousconcerns alongside government’s the organization of or attendance to superspreader events. The Turkish government put considerable effort into containingthe flow of information about the level of COVID-19 cases and targeted thosewho challenged the government’s official line on the pandemic. Under the guiseof combating ‘fake news’, ‘incitement’ or ‘spreading fear and panic’, hundreds ofindividuals including social media users, journalists, doctors, and others who werediscussing the pandemic responses online have been investigated pursuant tocriminal law provisions including under Article 213 (threats to create fear and panicamong the people), Article 216 (public incitement to enmity and hatred) and Article217 (public incitement to break the law) of the Turkish Criminal Code.Looking AheadThe impacts of the strategy of keeping risk groups, the elderly and children offthe streets, (whilst keeping the workforce on the streets) on the full range of theenjoyment fundamental rights, including the impacts on right to heath, right toeducation, women’s rights, rights of the elder persons alongside intersectional formsof discrimination in is yet to be fully studied in Turkey. There is some evidencethat there has been a rise in domestic violence, the data of the Istanbul SecurityDirectorate in mid-2020, for example, revealed a 32.8%  increase in domesticviolence compared to 2019. The impact of lack of Internet access or propertechnological devices on the right to education, in particular of those children comingfrom lower socio-economic backgrounds also  is a major concern in the face ofdifferent remote learning policies adopted by the Turkish Ministry of Education (foradditional problems, see here). According to a recent report, the number of studentswho lack access to ‘remote education’ stands at 6 million – around one third ofTurkey’s student population. Whilst the positive impacts of the rollout of CoronaVacvaccine, developed by the Chinese vaccination firm Sinovac, since 14 January2021 are keenly awaited to return to some sense of normalcy, there have also beentransparency concerns as to Turkey’s choice of a single vaccine roll out.Overall, the pandemic in the first year has been a magnifying glass of the ongoingprocess of executive aggrandizement in Turkey under its new Turkish stylepresidential system. This was reflected not only in the means and methods usedto fight the pandemic determined centrally by the executive team of the Presidentwith no or very limited oversight by the parliament, courts, but also in the selectiveapplication of rules to the government and its critics and legal harassment of those,including doctors and health workers, who have criticized the measures takenand asked for more transparency. In addition, whilst the Parliament was sidelined- 5 -in addressing the pandemic, it has been active in introducing a wide range oflaws restricting rights in contexts not related to the pandemic in the first year. Forexample, one piece of legislation adopted in summer 2020 tightened governmentalgrip over social media platforms — allowing state authorities to remove contentfrom these platforms (rather than blocking) and requiring social media giants toappoint a local representative to address authorities’ concerns. At the end of 2020,the Parliament further approved a law, which places onerous oversight rules oncivil society organizations, including on the ability of the Turkish Internal Ministry toreplace the leaders of such organizations who face terrorism charges. As the firstyear of the pandemic comes to an end, a post pandemic normalcy does not bodewell for fundamental rights and rule of law.- 6 -

Year One: Reflections on Turkey’s Legal Responses to the COVID-19 Pandemic

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Year One: Reflections on Turkey’s Legal Responses to the COVID-19 Pandemic

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