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The Unlikely Threat: How a Sanitation Worker Became a Symbol of Constitutional Turmoil

Dr. Mustafa Yasar Demircioglu

How can a sanitation worker, whose entire day is spent sweeping the streets, become the number one threat to the constitutional order?

Following the process of July 15, 2016, in Turkey, the social genocide carried out against public employees through the decrees law entered its 8th year, and there is no concrete sign of solving this problem in the near future through political power and judicial bodies. Meanwhile, a case that the government and judicial bodies have high hopes for, related to the purge process created by the decrees, continues to quietly wait in front of the ECtHR.

One of these files is the 2018/10286 C.A. application, where the Turkish Constitutional Court attempts to legitimize the injustice done to those dismissed by the decrees within the framework of the ‘State’s Right to Purge/Lustration Principle’. The Constitutional Court has centered all public employees’ illegitimate practices by the government on the principle of ‘Lustration/Purification’.

“Sweeping the streets” is not a terrorist act! The case in question involves a sanitation worker from Antalya Mediterranean Municipality, whose contract was terminated due to membership in a closed association; the Constitutional Court intends to extend the principles it accepted in this case to all public employees dismissed by decree. The Constitutional Court, which sees even a sanitation worker, whose only job is to sweep the streets and collect garbage, as a threat to the security of the state and nation, if accepted by the ECtHR, it will not be possible for any employees terminated by decrees to be employed in a public institution anymore. It seems unlikely that the judicial system, which treats a sanitation worker in this manner, will decide to reinstate any other public employees dismissed by decrees, regardless of their duty and title, including military personnel, police, judges, prosecutors, academic staff, etc.

The dispute subject to the individual application involves C.A., a sanitation worker at the Mediterranean Municipality, whose duty, according to his statements, is to sweep the streets and avenues all day long. He has also worked in road construction and pavement works, and while working through a subcontractor, he was made permanent along with other workers in the municipality. He used to meet with friends some evenings at the association he was a member of, engage in religious talks, read the Quran, and listen to religious talk tapes. Apart from these activities, no other political or similar activities have been witnessed. However, due to the record of ‘ByLock’ on his mobile phone, he was sentenced to 6 years and 3 months in prison by the decision of the Mersin Heavy Penal Court, and there is no other evidence related to terrorist organization activities in his file.

The ‘Purification Principle’ is being abused In this dispute before the Constitutional Court, evaluations were made within the framework of the violation of the ‘right to respect for private life’ of the individual applicant who was dismissed from duty/terminated. The Constitutional Court attached great importance to this case for the future dismissal cases and turned this individual application into a decision of inadmissibility unanimously by all 16 members of the Constitutional Court.

The Turkish Constitutional Court based all its judicial reasons on the ‘Lustration/Purification’ principles, which were aimed at preventing the threat to the emerging democracy in the ‘Iron Curtain’ countries after the collapse of the Communist Bloc by preventing former KGB agents and senior communist party members/bureaucrats from being employed in public duties for certain periods. The ECtHR’s reversal/contrary interpretation of the basic principles in the ‘Lustration/Purification’ cases and ignoring these basic principles in this decision is a clear indication of how ECtHR decisions can be abused and misused.

Can a sanitation worker threaten the existence of the state? A sanitation worker, whose job is merely sweeping the floors all day long, has been elevated to such a level of threat to Turkish democracy and the constitutional order that how the 16 members of the Constitutional Court could interpret the basic principles of ‘purification’ cases set forth by the ECtHR and the Council of Europe in this way is a separate topic for examination. This case, being a pilot case, is exemplary in reflecting the views of the judges in the Turkish judiciary bureaucracy towards the KHK issue and also holds great significance in whether the KHK victims can have any hope in the Turkish judicial organs.

However, according to the ECtHR jurisprudence and the principles of the Council of Europe, the basic principles in ‘Purification/Lustration’ cases are as follows:

The State’s Right to Purge/Lustration; are applicable measures against public employees who pose a threat to the democratic constitutional order, potentially being effective in decision-making processes. Purification is a temporary measure that can be applied for 5 or 10 years depending on the title and position of the public officer, and it is not possible to apply it in a way that would prevent them from entering public duties for life. The way in which public officers subjected to Purification have violated fundamental human rights, their role in torture, maltreatment, etc., must be clearly demonstrated. Purification practices cannot be based on membership in a group or being in office during a certain period. It cannot be turned into a form of collective punishment or sanction, the individualization of crimes is essential, and it must be demonstrated how the person’s actions and operations pose a threat to the constitutional democratic order. Purification measures cannot be applied contrary to the principle of innocence. The judicial organs must prove the individual/personal role of the public officer in past injustices. Purification proceedings must be a mandatory measure that must be applied to an individual to protect the constitutional democratic order. The individual must be posing a threat to the democratic constitutional order if not removed from public office. How can a sanitation worker hinder the protection of the Constitutional order? If we apply the above basic principles to the C.A. case, which the Constitutional Court is waiting for a decision from the ECtHR and which will be exemplary for all KHK victims, what result can we obtain? How can a sanitation worker, whose entire day is spent sweeping the streets and for whom no concrete criminal act has been proven other than being a member of an association and gathering in the association a few evenings a week to read the Quran and chat, become the number one threat to the constitutional order? Is there proportionality or necessity in this measure? How can this sanitation worker negatively affect the decision-making processes of the democratic order and hinder the protection of the constitutional order?

Research assistants, veterinarians, doctors, drivers, sanitation workers, nurses, and hundreds of thousands of public employees were declared guilty of attempting to overthrow the constitutional democratic order and membership in a terrorist organization, and were indefinitely dismissed from their duties through KHK social genocide. The Constitutional Court, which tries to legitimize these dismissals through a sanitation worker, will continue to be remembered with shame and this decision will definitely be overturned by the ECtHR.

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