THE BUREAU OF THE CONGRESS
Strasbourg, 18 September 2007
LOCAL DEMOCRACY IN TURKEY
SITUATION IN SUR / DIYARBAKIR
(SOUTH-EAST ANATOLIA, TURKEY)
REPORT OF THE
CONGRESS FACT-FINDING MISSION TO TURKEY
(8 - 10 AUGUST 2007)
of: - Anders KNAPE (Sweden, L, EPP/CD)
- Hans-Ulrich STÖCKLING (Switzerland, R, ILDG)
- Irina PEREVERZEVA (Russian Federation, L, SOC)
Document examined and made public by the Bureau of the Congress on 17 September 2007
1. At its meeting in Tromsø, Norway on 2 July 2007, the Bureau of the Congress decided to send a delegation to Turkey on a fact-finding mission to clarify the situation regarding mayors and municipalities of the South East Anatolia Region of the country. The delegation would be composed of Mr Anders KNAPE (Sweden, L, EPP/CD), Vice-President of the Congress; Mr Hans Ulrich STÖCKLING (Switzerland, R, ILDG), Vice-President of the Congress; Mrs Irina PEREVERZEVA (Russian Federation, L, SOC), Vice-President of the Congress Institutional Committee; and Professor Chris HIMSWORTH, United Kingdom, expert. The delegation would be accompanied by two members of the Congress Secretariat: Mr Jean-Philippe BOZOULS, Executive Secretary of the Chamber of Local Authorities and Mr Tim LISNEY, Deputy to the Executive Secretary of the Chamber of Local Authorities.
2. The immediate background to the Bureau’s decision included concerns raised by two letters from Mr Osman Baydemir (mayor of Diyarbakir and president of the Union of South East Anatolia Municipalities) of 18 September 2006 (to Mr Skard, President of the Congress) and 14 March 2007 (to Mr Bohner, Secretary General of the Congress). The concerns related to legal proceedings mayors and municipalities notably: a case against 56 mayors for supporting Roj TV (a station broadcasting in the Kurdish language) in a letter to the Prime Minister of Denmark; a case against Mr Baydemir for a press conference given by him; and a case against the Mayor and Council of the Sur Municipality (in Diyarbakir) for decisions taken to provide information in Kurdish. These letters had been followed by a decision on 14 June 2007 to remove the Sur Mayor (Mr Abdullah Demirbas) from office and to dissolve the Council; a letter of 19 June from Mr Wim Deetman, Mayor of the Hague and President of the “City Diplomacy” Committee of the UCLG to Mr Skard requesting that a Congress delegation visit Turkey; and a visit by Mr Demirbas to Strasbourg on 26 June to meet members of the Congress Secretariat.
3. The delegation’s visit to Turkey took place during 8-10 August 2007, with two days of meetings in Diyarbakir and a further day in Ankara. Details of the programme are in Appendix 1 to this Report. The delegation would like to express their very warm thanks for the welcome they received in Diyarbakir and Ankara, the hospitality offered, and the information and other assistance received from those they met in the two cities. The mission had been delayed because of the General Election held in Turkey on 22 July. The election results strengthened the ruling (AKP) party and at the same time brought over 20 DTP MPs into Parliament.
4. It will already be apparent that a number of issues have arisen in recent months in South East Anatolia which, on their face, are within the domain of the Congress. A principal focus of this report, however, is on the facts relating to the dismissal of the Mayor of Sur and the dissolution of the Council. This is in part because of the very high importance of any removal of elected local officials and members and in part because of the immediacy of the case to the delegation’s visit. During the visit, court decisions were issued which have led to the final removal from office of the Mayor and Council and to the need for new elections. Whilst most attention is given to the Sur case, however, the delegation had the benefit of much other information which not only assists with the understanding of that case but also throws light on other recent events in South East Anatolia. The Bureau should also be reminded that this is not the first time that the Congress has responded to concerns about the position of mayors and municipalities in the region. In particular, the suspension and dismissal of mayors (or threatened suspensions and dismissals) led to a delegation by Mr KNAPE and Mr STÖCKLING (together with Professor HIMSWORTH) to Ankara and Diyarbakir in October 2001 which led in turn to a Congress Information Report of 22 November 2001 (CG/INST(8)27) and a further Opinion published by the Congress on 29 November 2002 (CPL/INST(9)14).
Section B of this Report contains a brief analysis of the case of the Sur Municipality; section C contains a preliminary conclusion on the case; section D provides a summary of the arguments which have surrounded that case and provides an opportunity to refer to information about other cases and events which should provide an understanding of the more general situation in South East Anatolia as it affects local democracy in that region and more broadly. Section E contains a summary of the conclusions reached by the delegation, its provisional recommendations, and the decisions taken at this stage by the Congress Bureau.
5. This report was submitted to the Congress Bureau on 17 September 2007. The Bureau decided to make the report public and to transmit it to the Turkish authorities and the various parties that the delegation met during its mission.
B. THE CASE OF THE SUR MAYOR AND COUNCIL
6. On 6 October 2006 the Council of the Municipality of Sur made a decision (confirmed by the Mayor) to issue information regarding the provision of certain public services in Kurdish, Armenian, Syriac, English and Arabic as well as in Turkish. The resolution was entitled “Multilingual Municipality Service”. Because it was suspected that the decision might be a violation of the law and constitution of Turkey, the Governor of the Diyarbakir invited the Ministry of the Interior to intervene by appointing an inspector to investigate1. In the light of the inspector’s report, proceedings were commenced (27 February 2007) in the 8th Division of the Council of State (Supreme Administrative Court) and, in due course, the Court issued a decision (22 May 2007) against the Sur Municipality and ordered that the Council be dissolved and the Mayor dismissed. In outline, the basis of the decision was that:
a. Turkish municipalities are not permitted to take decisions on “political matters” unrelated to their duties.
b. If such decisions are taken, the law requires dissolution/dismissal.
c. According to Art 3 of the Constitution, the Turkish State, with its territory and nation, is an indivisible entity. Its language is Turkish.
d. The provision of services by municipalities is permissible only where not incompatible with other duties.
e. The acknowledged right (of municipalities) to provide courses in languages other than Turkish cannot be arbitrarily expanded. Municipalities cannot indirectly substitute other languages for the official language of the State. Such a right to extend language use was established neither by the Turkish Constitution nor by the European Charter on Local Self-Government.
7. Subsequently, the Municipality appealed against the decision - an appeal which was upheld by the Council of State on 27 July 2007, but only on procedural grounds. The case duly returned to the 8th Division which upheld (on 9 August) its initial decision on the substance of the case. In the meantime, however, in reliance on the initial court decision, the Governor had ordered (on 25 July) the appointment of Vice-Governor Ahmet Yilmaz, Secretary General of the Diyarbakir Special Provincial Administration, to be Mayor of Sur and the appointment of four officials to perform the functions of the dissolved Council.
8. In addition, it is understood that, although there may yet be a further appeal, the period of 60 days within which elections must be held for a new mayor and new council has now commenced. The elections must, therefore, be held before the middle of October. The former mayor and councillors are understood to be permitted to be candidates in the election and it is widely predicted that, if they stand, they will be re-elected. At the same time it is recognised that, following the Congress investigation in 2001 of dismissals of mayors in Turkey, the law was changed so that decisions for dismissal of mayors and dissolution of municipal councils must now be taken by the State Council, on notification by the Ministry of the Interior, and are no longer taken by the Ministry itself (Articles no 30 and 43 of Law No 5393).
C. A PRELIMINARY CONCLUSION ON THE SUR MUNICIPALITY CASE
9. For the Congress and for the maintenance of high standards of local authority autonomy, the dismissal of elected local government officials by means other than a popular vote is plainly a matter of the highest importance. It is well-known that the text of the European Charter of Local Self-Government 1985 does not address this issue directly, although it is also plain that the spirit of the Charter as a whole - reinforced by the text of Art 7 (1) “free exercise of functions” and of Art 8 (1) “administrative supervision” - is opposed to the undemocratic dismissal of elected officials.
10. This is a position which has been made clear in Congress Recommendations in circumstances where the issue has arisen. In, for instance, Recommendation 12 (1995) on local democracy in Romania referred to the need for proportionality in the supervision of elected representatives; for their suspension only in cases of latent, repeated offences or “at the express request of the judicial authorities in the context of a criminal investigation, to the extent that suspension is truly necessary to the enquiry”; all other remedies should be exhausted before resorting to the extreme solutions of suspension and dismissal of mayors (para. 11.3.3-4). In Recommendation 20 (1996) on monitoring the implementation of the Charter, para 3(d)(i) declared that: although dismissal, suspension and dissolution procedures are not incompatible with the Charter, they must be measures of last resort, only applied in the event of repeated and established violations of the constitution or other legislation enacted by Parliament or in prolonged circumstances that make it impossible for them to carry out their functions.
11. Although it was not the delegation’s task to reach a concluded view on whether or not the Sur case and the constitutional and legislative regime on which it was based demonstrates a breach of Charter standards, it is our provisional view that this must indeed be the case. The circumstances do not demonstrate ‘repeated and established violations’ or a proportionate response justifying such an intrusive intervention into the autonomy of the local authority.
D. BROADER CONTEXTUAL CONSIDERATIONS
12. In reflecting on how to respond to the specific instance of the Sur Municipality, the Bureau may wish to take account of some broader considerations which may contribute to an understanding of the context within which the Sur case occurred - and is continuing to develop. What follows are some thoughts based on documentary material supplied to the delegation and on the discussions held in Diyarbakir and Ankara. They reflect the diversity of views within Turkey about the political and constitutional context; views on the general state of local democracy in Turkey; interpretations of the history of the SE Anatolia region and the Kurdish people; views on the status of Kurdish as a language - both in general and in the Turkish political context; views on the relevance of the recent history of violence and conflict in SE Anatolia; views on official measures recently taken to enforce restrictions on the use of the Kurdish language; and views on the circumstances in which it is, or should be, legitimate for local authorities to provide their populations with information in any languages other than Turkish (i.e. not just Kurdish) about the services which the authorities provide.
13. Together, these differences of view produce important differences in the attitudes adopted towards whether or not the Sur Municipality acted appropriately in testing the law in the way they did (and might again) and also, more significantly, about whether or not Turkish law should be changed in such a way as to permit municipalities to engage in activities such as those which brought dismissal and dissolution on the Sur Municipality.
(a) It was frequently argued (by Kurdish language activists and by politicians), at the delegation’s meetings in Diyarbakir and in written material presented to us, that the specific case for dismissal of the mayor and council of Sur is only one of a much wider pattern of enforcement activity against the alleged illegal use of the Kurdish language2: the mayor and council of Sur (together with the mayor of Diyarbakir) face criminal prosecution in November 2007 to add to the administrative court proceedings already brought; during 2006-2007 there have been criminal prosecutions of individual politicians and others giving speeches (and singing songs) in Kurdish; the former Mayor of Sur was investigated in relation to the alleged conduct of a marriage ceremony in Kurdish; there have been prosecutions for the use of the forbidden “w” letter on official communications; the Mayor of Diyarbakir has been prosecuted for sending greetings cards (“Happy New Year”) in Kurdish; 56 mayors were prosecuted for “abetting and aiding an armed organisation” on the basis of their letter to the Danish Prime Minister concerning the possible closure of Roj TV.
(b) We were presented with arguments strongly supportive of the general principle of a local authority’s right to promulgate information to their population in languages spoken by the people. Some 72% of the population of Sur are Kurdish speaking. Because of the influx of population from surrounding villages (especially in the 1990s) large numbers of residents are familiar only with the Kurdish language. The point was compellingly made to us that the population of Diyarbakir - and especially the women - are suffering from a lack of communication of relevant information in Kurdish. The health of women and children has been badly affected. No doubt other factors are relevant, but the need for Kurdish language communication by both private and public bodies was very strongly made.
(c) It was pointed out to us that the practice of local authorities adapting their language to local conditions was not only common in other parts of Europe (e.g. Germany (in languages including Turkish), Switzerland (including Turkish and Kurdish), and the UK) but also in Turkey itself. Many local authorities in the west of the country are known to use languages such as English and German to communicate with residents.
(d) Some argued that the differences within Turkey were explained by the fact that those other authorities had simply adopted their “other” language use as a matter of administrative practice rather than, as in Sur, by formal resolution. Others saw the differences as evidence on the part of law enforcers of discrimination specifically against Kurdish. Views differed (including within the Ministry of the Interior) on what the reaction of central government or the courts would be if, for instance, the Sur municipality were to promulgate information in Kurdish without a formal resolution to do so3. It was stated by the temporary mayor of Sur that he has not requested the municipality’s telephone operators to cease to use Kurdish in response to calls in Kurdish.
(e) It was widely conceded that in many circumstances “public” bodies do use the Kurdish language in the course of information communication with the population of SE Anatolia. In particular, parliamentary candidates openly used Kurdish in the July 2007 electoral campaign, although it was illegal to do so.
(f) One distinction strongly made to us within the Ministry of the Interior between the use by local authorities of Kurdish and ‘other’ languages was that those other languages were ‘internationally recognised’. Kurdish was not so recognised and had a doubtful pedigree and legitimacy. It was described instead as only an ‘ethnic’ language. Despite evidence of the use of Kurdish in newspapers, books and journals, it was argued that Kurdish was not a sufficiently settled language for formal communication. Against this, it was argued that Kurdish does indeed have a developed character, with a long history and is in very wide popular use.
(g) From a different perspective it was argued (in Ankara) that tendencies in the direction of the public use of Kurdish could not be dissociated from the “special sensitivities” which derived from the political geography of SE Anatolia. Individuals were always free to communicate in Kurdish but, although this was strongly denied by the former mayor and council of Sur, the dissemination of material in Kurdish was viewed as an indirect attempt to add a second “official” language in Turkey. This was contrary to the spirit of the Constitution. It was also indistinguishable politically from the separatist elements which were a major problem in SE Anatolia and which, in turn, could not be wholly distinguished from the violent conflict which had left many thousands dead in that area. The Turkish army had recently lost several of its personnel in the conflict. Public opinion on these matters across Turkey had to be considered.
(h) These considerations, no doubt along with others, produced differences of opinion about (i) the appropriateness of the Sur resolution in the light of the current state of the law and (ii) the appropriateness of bringing forward proposals to amend the existing law. On (i), representatives of the central government in particular argued that, in a ‘rule of law’ state such as Turkey, the current law should be observed and upheld by public authorities and should not be challenged by them. Parliament might, in due course, change the law but, unless and until that happened, it should not be the role of public authorities to contest the law in legal proceedings, especially where it took them into “political matters”. If there were differences of view these should be resolved in discussion between the different parties and, even from some local government representatives, there was no substantial sympathy for certain elected local officials seeking what others saw as special treatment. That approach was, of course, contested by the former Sur representatives. On (ii), there was a marked division between views expressed to the delegation in Diyarbakir and Ankara. In Diyarbakir we were given the clear impression that there was no strong conviction to defend the present state of the law. Local representatives, for instance, of the ruling AK Party, whilst not committing to specific legal amendments, pointed out that the Party’s manifesto in the recent elections had campaigned for a new “civilian consensual constitution”, containing new rights and a new social contract - which, they implied, might bring with it an amendment of the language laws. In Ankara, however, we found no such unity of view. Many, including those in government, were much more defensive of the existing rules and showed no particular sympathy for any legislative change.
(i) Although opinions on EU accession no doubt vary very greatly in Turkey, there can be little doubt either that, among those the delegation met, people were well aware that the Sur case and others raising the combined issues of language freedom and local democracy were directly relevant to the accession debate – both inside and outside Turkey.
E. CONCLUSIONS AND PROVISIONAL RECOMMENDATIONS
15. We have already indicated (para 10 above) our provisional conclusions on the Sur case. It seems to us, therefore, that a natural step forward would be in the direction of (a) the expression of the concern of the Congress about the current laws which can produce such an outcome; and (b) the communication to the Turkish government of a wish to see a very early amendment of the law. We understand that the principal targets for amendment would be Articles 30 and 44 of the Municipality Law (No 5393 of 2005). However, it will also be necessary to amend the Constitution.
16. In our view, the current law, in both its substantive and its procedural aspects, is so flawed as to be unsustainable. There is the asserted but fraught distinction between ‘international’ and ‘ethnic’ languages; there is the confusion over what exactly constitutes a ‘political’ abuse of power by public authorities; there is uncertainty about the distinction between those things done under the authority of an official resolution and those done as a matter of administrative practice; there is uncertainty, evidenced by the procedures in the Sur case itself, about the procedural protections available to the mayor and councillors when legal measures are taken against them; and, perhaps above all, we are unhappy about the apparently arbitrary way in which the law may be invoked and enforced against different instances of alleged breach of the law. We have some sympathy with claims that abrupt action was taken against Sur in circumstances where other authorities have been left unscathed It is, therefore, our view that, rather than simply undertaking a narrow reform of the Municipality Law in isolation, a broader review of existing law should also be adopted.
17. In addition, however, it is also the view of the delegation that, whatever reforms are to be suggested to the laws and Constitution of Turkey, the legal programme should be integrated into a broader political initiative. Turkey currently stands at a point of significant political opportunity. The July elections have produced a strong majority for the ruling (AKP) Party, a Party committed to political and constitutional change. It is also a Party which has drawn on substantial electoral support form the Kurdish population. But the elections have also brought representation in Parliament of the DTP, bringing opportunities for an important new and democratic diversity in Turkish politics. The Parliament has a new Speaker. The State has a new President, who has expressed the desire to introduce new constitutional measures. These developments have the possibility of producing the momentum for the sort of broad political change which could readily encompass the Kurdish language-related reforms of both law and policy which are so clearly needed. The Congress should, we believe, express its confidence in the commitment and capacity of the new political leadership of Turkey to make substantial progress in this direction.
18. In this spirit, the Congress decided to extend an invitation to Prof. Dr. Beşir ATALAY, the new minister of the interior, to address the Congress, on the occasion of its November autumn session in Strasbourg, and outline the policy that the new government of Turkey intends to follow with regard to these issues. Moreover the Congress could encourage the Turkish government, as it ventures on a new phase of reform and modernisation, to underpin its commitment to diversity and pluralism by signing the European Charter for Regional or Minority Languages and the Framework Convention for the Protection of National Minorities. The Congress, for its part, could stress that it remains at the disposal of the Turkish authorities and would be willing to undertake a further mission to Turkey, should this be appropriate.
19. The Congress instructs its Institutional Committee to prepare a recommendation to the Committee of Ministers of the Council of Europe, for the intention of the Turkish authorities, to underline the concerns highlighted in this report.
Congress fact-finding mission to Turkey
8 - 10 August 2007
Wednesday 8: Diyarbakir
- Delegation meeting at hotel
- Mr Abdullah Demirbas, Mayor of Sur, and the members of Municipal Council
- Meeting with NGOs
- Diyarbakir Bar Association
- Human Rights Association
- Kurdish Institute
- Dicle-Fırat Cultural Center
- DİKASUM (Diyarbakir Metropolitan Municipality Centre for Women's Issues)
- KÜRDİ-DER (Association for Research into the Kurdish Language)
- Egitim-Sen (Teachers' Union)
- Mr Efkan Ala, Governor of Diyarbakir
- Mr Ahmet Yilmaz, Vice-Governor in charge of Sur Municipality
- Democratic Society Party representatives
Thursday 9: Diyarbakir
- Seven mukhtars (representatives of urban districts) and Chair of Association of Mukhtars
- Justice and Development Party (AKP) representatives
- Mr Osman Baydemir, Mayor of Diyarbakir Metropolitan Municipality
- Media representatives
Friday 10: Ankara
- Ministry of the Interior
- Mr Murat Zorluoğlu, Head of Department, Secretary of Congress delegation
- Mr Bülent Kilinç, General Director of the General Directorate for Local Authorities
- Mr Zekeriya Şarbak, Deputy Undersecretary
- Professor Rusen Keleş, member of the Congress Group of Independent experts
- Mr Yavuz Mildon, Mr Yusuf Ziya Yilmaz and Mr Menderes Turel, Turkish
Delegation to the Congress
- Meeting with diplomatic missions in Ankara (Canada, Denmark, France, Germany, Norway, Sweden, Switzerland, United Kingdom, United States, European Union)
- Union of Municipalities of Turkey, (Mr Adem Esen, Mayor of Selcuklu, Konya and Mr Nihat Zeybekci, Mayor of Denizli)
- Ms Gultan Kisanak and Mr Akin Birdal, members of Parliament (Democratic Society Party)
Mr Anders KNAPE, Vice-President of the Congress, President of the Swedish Association of Local and Regional Authorities
Mr Hans Ulrich STOCKLING, Vice-President of the Congress, Member of the Government of the State of St Gallen, Switzerland
Mrs Irina PEREVERZEVA, President of the Institutional Committee of the Chamber of Local Authorities, Mayor of Kostroma City, Russian Federation
Professor Chris HIMSWORTH, University of Edinburgh, expert
Mr Jean-Philippe BOZOULS, Executive Secretary of the Congress Chamber of Local Authorities
Mr Tim LISNEY, Deputy to the Executive Secretary of the Congress Chamber of Local Authorities
Ms Serap Ruken SENGUL
Ms Aslı ONAY
Eighth Division of the Supreme Administrative Court
of the Republic of Turkey
22 May 2007
File No: 2007/1315
Decision No: 2007/3101
Requesting party: Ministry of the Interior
Respondents: 1. Sur municipal council, Diyarbakır
2. Abdullah Demirbaş
Counsel for the respondents:
1. Mustafa Ayzit and Cihan Aydın, lawyers
Ali Emri 5. Sok. Yılmaz 2000 Apt. Kat 1-4 - DİYARBAKIR
2. Hasip Kaplan, lawyer
İstiklal Cad. Kallavi Sok. No. 6/4 – Beyoğlu/ İSTANBUL
Summary of the request:
Request for the requisite measures to be taken under Section 30, paragraph 1.b of Law No. 5393 in respect of the municipal council of the first-tier municipality of Sur, Diyarbakır province, on the grounds that the council decided to engage in “multilingual municipal management” in the provision of municipal services, and under Section 44, paragraph 2.d of the same law in respect of mayor Abdullah Demirbaş, who took part in this decision.
Summary of the defence submissions:
The defence submissions were not filed within the statutory time-limit.
Opinion of the Supreme Administrative Court reporting judge Melek ŞENDİL YAN:
As the conditions laid down in Sections 30 and 44 of Law No. 5393 are fulfilled, the Court should decide to dissolve the municipal council and remove the mayor from office.
Opinion of the Public Prosecutor at the Supreme Administrative Court, Radiye TİRYAKİ:
By letter No. B050MAH1006001/521.2007.21.05/5735-57216, the Ministry of the Interior’s Directorate General of Local Authorities requests that the municipal council of the first-tier municipality of Sur, Diyarbakır, be dissolved on the grounds that it took a decision on political issues unrelated to the functions conferred on the municipality, in accordance with sub-paragraph b. of Section 30 of Law No. 5393 on Municipalities, entitled “Dissolution of the municipal council”, and that Abdullah Demirbaş, Mayor of the first-tier municipality of Sur, Diyarbakır, who took part in this decision, be removed from office on the grounds that he took part in activities and procedures causing the dissolution of the municipal council, in accordance with Section 44, paragraph 2.d of Law No. 5393.
Section 30.b of Law No. 5393 provides that “if the municipal council takes decisions on political issues unrelated to the functions conferred on the municipality, it shall be dissolved by decision of the Supreme Administrative Court after the latter has been notified by the Ministry of the Interior”. Section 44, paragraph 2.d provides that “if the mayor takes part in activities and procedures that cause the dissolution of the municipal council, he shall lose the office of mayor by decision of the Supreme Administrative Court further to an application by the Ministry of the Interior”.
Article 3 of the Constitution of the Republic of Turkey, in the part entitled “General principles”, provides that “the Turkish state, with its territory and nation, is an indivisible entity. Its language is Turkish”; Article 4 of Section IV entitled “Irrevocable provisions” provides that “…the provisions of Article 3 shall not be amended, nor shall any proposal be made for their amendment”; Article 11 of Section XI of the “General principles”, entitled “Supremacy and binding force of the Constitution”, provides that “the provisions of the Constitution are fundamental legal rules binding legislative, executive and judicial organs, administrative authorities, other agencies and individuals. Laws shall not be contrary to the Constitution”; and Article 42 entitled “Right to education and duty to educate” provides that “no language other than Turkish shall be taught to Turkish citizens as their mother tongue in educational establishments”.
Article 127 of the Constitution provides that local authorities are public corporations established to meet the common local needs of the inhabitants of provinces, municipalities or villages, that the principles governing their structure shall be regulated by law and that their decision-making organs, also prescribed by law, shall be elected by the electorate.
Section 2 of Law No. 1353 on the Adoption and Application of the Turkish Alphabet makes the adoption and use of documents written in the Turkish alphabet mandatory in all state offices and institutions and in all companies, associations and private institutions as from the date of publication of the law.
Likewise, in its decision of 19.3.1996 on the closure of a political party (File No. 1995/1, Decision No. 1996/1), the Constitutional Court held that in accordance with constitutional provisions, official procedures and correspondence must be in the Turkish language, official documents must be drawn up in Turkish and education and the national culture must be based solely on Turkish.
Examination of the case file shows that on 6.10.2006 Sur municipal council, Diyarbakır, adopted the following decision No. 61 by 17 votes in favour (including that of the mayor), 7 votes against and 1 abstention: “as the municipality comprises citizens with different languages, religions and cultures, public surveys of the town’s population have been conducted; 24% of the local population have been found to speak Turkish, 72% Kurdish, 4% Arabic and 3% Syriac and Armenian; in order that all the municipality’s activities may reach people of different ethnic origins more effectively, future work must be organised with this factor in mind, on the basis of the scientific findings obtained. …In order to deliver municipal services to the public more reliably and make educational, cultural and artistic activities easier to understand, current and future work must be done according to a participatory view of municipal service provision and a “multilingual municipal management” approach. As of now, the municipality’s work will therefore be conducted on a multilingual basis”.
Sur municipality is a public corporation responsible for and tasked with the provision of common local services in accordance with Article 127 of the Constitution, and is one of the first-tier municipalities whose functions and responsibilities are set out in Section 7 of Law No. 5216; the fact that in the provision of municipal services and the conduct of educational, cultural and artistic activities it uses local languages spoken by the town’s population, other than Turkish, the official language, allegedly in order to deliver municipal services to the public more reliably and make educational, cultural and artistic activities easier to understand, is clearly a violation of the constitutional and legislative provisions quoted above, and is also inconsistent with the realities of our country.
As the language of education in our country is Turkish, and as literate Turkish citizens can read and write Turkish, there can be no reasonable justification for providing municipal services in languages other than Turkish.
That being so, as Sur municipal council took a decision on political issues unrelated to the functions conferred on the municipality and as the mayor took part in this decision, it is my opinion that the municipal council will have to be dissolved under Section 30, paragraph 1.b of Law No. 5393 and that the Mayor of Sur, Abdullah Demirbaş, will have to be removed from office under Section 44, paragraph 2.d of the same law.
ON BEHALF OF THE TURKISH NATION
After deliberation, the Eighth Division of the Supreme Administrative Court decided as follows:
The request is for the requisite measures to be taken under Section 30, paragraph 1.b of Law No. 5393 in respect of the municipal council of the first-tier municipality of Sur, Diyarbakır province, on the grounds that the council decided to engage in “multilingual municipal management” in the provision of municipal services, and under Section 44, paragraph 2.d of the same law in respect of mayor Abdullah Demirbaş, who took part in this decision.
Article 127 of the Constitution provides that objections to the acquisition by elected local government organs of their status as organs shall be decided by the courts, which shall also supervise their loss of such status.
Section 24 of Law No. 2575 indicates, in paragraph 1, the cases to be dealt with at first instance by the Supreme Administrative Court, then provides in paragraph 2 that the Supreme Administrative Court shall examine and decide on requests concerning the loss by elected organs of municipalities and special provincial authorities of their status as organs. Additional Section 2 of the same law provides that files sent to the Supreme Administrative Court by the competent authorities concerning the loss by elected organs of municipalities and special provincial authorities of their status as organs shall be considered complete either on receipt, within fifteen days, of the defence submissions of the mayor if the file concerns a request to remove the mayor from office, or of the vice-chair of the municipal council if the file concerns a request to dissolve the council, or, if no defence submissions are received within that time-limit, on the date on which the time-limit expires; that the statutory time-limits for decision shall begin to run as of that date; that the Court shall decide on the basis of the file; that objections to these decisions may be lodged with the Mixed Administrative Division within fifteen days of the day following that on which the decision is served; that a decision shall be given on the objection within one month and that the decision concerning the objection shall be final.
As required by the fact of elections and the principles of democracy and the rule of law, the judicial supervision provided for by the above-mentioned constitutional and legislative texts, concerning the loss by elected local government organs of their status as organs, has been established as a special method unconnected with the concept of court case. The judicial process does not exhibit the characteristics of an administrative case; at the outset there is no administrative measure or plaintiff whose legal interests are affected by this measure. On receiving a file compiled by the head office of the civil service department concerned, whether pursuant to a request from the public authorities or because of a decision taken by the local government organs concerned, the Supreme Administrative Court decides whether or not to dismiss from office or dissolve elected local government organs.
Judicial supervision concerning the loss by local government organs of their status as organs is therefore not in the nature of a court case, but rather of a special request and method; consequently, the Court has not granted the applications to intervene filed by Muhlis Çapa and Ahmet Mikdat Güneş, members of Sur municipal council, nor the application for a reasonable period to be granted for the defence filed by the deputy mayor on 29.3.2007 after letting the time-limit for defence submissions expire, whereas the request for defence submissions was served on 13.3.2007 under the above-mentioned legal rule; nor has it granted the application for a hearing filed by the deputy mayor on 9.4.2007.
Section 30, paragraph 1.b of Law No. 5393 on Municipalities provides that if the municipal council takes decisions on political issues unrelated to the functions conferred on the municipality, it shall be dissolved by decision of the Supreme Administrative Court after the latter has been notified by the Ministry of the Interior. Section 44, paragraph 2.d of the law provides that if the mayor takes part in activities and procedures that cause the dissolution of the municipal council, he shall lose the office of mayor by decision of the Supreme Administrative Court further to an application by the Ministry of the Interior.
Part I, Article 3 of the Constitution provides that the Turkish state, with its territory and nation, is an indivisible entity and that its language is Turkish; Part II details fundamental rights and duties; Article 10 provides that everyone is equal before the law irrespective of language, race, colour, sex, political opinion, philosophical belief, religion, sect or other status, and that organs of state and administrative authorities are required to comply in all instances with the principle of equality before the law; Article 11 provides that the provisions of the Constitution are fundamental legal rules binding legislative, executive and judicial organs, administrative authorities, other agencies and individuals; Article 42 of Chapter III entitled “Social and economic rights and duties” provides that no language other than Turkish shall be taught to Turkish citizens as their mother tongue in educational establishments; and Article 66 of Chapter IV entitled “Political rights and duties” provides that everyone bound to the Turkish state by the bond of citizenship shall be Turkish.
Article 127 of the Constitution provides that local authorities are public corporations established to meet the common local needs of the inhabitants of provinces, municipalities or villages, that the principles governing their structure shall be regulated by law, that their decision-making organs, also prescribed by law, shall be elected by the electorate and that the structure, functions and powers of local authorities shall be regulated by law in accordance with the principle of local self-government.
Section 2 of Law No. 1353 on the Adoption and Application of the Turkish Alphabet makes the adoption and use of documents written in the Turkish alphabet mandatory in all state offices and institutions and in all companies, associations and private institutions as from the date of publication of the law.
Section 7 of Law No. 5216 on Metropolitan Municipalities establishes the functions and powers of metropolitan municipalities and district and first-tier municipalities; Section 14 of Law No. 5393 on Municipalities establishes the functions and responsibilities of municipalities; Section 13 provides that everyone is a citizen of the town in which they live and that citizens are entitled to take part in municipal decisions and services, to receive information on municipal activities and to receive assistance from the municipal authority.
Article 3 of the European Charter of Local Self-Government provides that local self-government denotes the right and the ability of local authorities, within the limits of the law, to regulate and manage a substantial share of public affairs under their own responsibility and in the interests of the local population; Article 4 provides that the basic powers and responsibilities of local authorities shall be prescribed by the constitution or by statute, that local authorities shall, within the limits of the law, have full discretion to exercise their initiative with regard to any matter which is not excluded from their competence nor assigned to any other authority, and that their powers may not be undermined or limited by another, central or regional, authority except as provided for by the law; and Article 8 provides that any administrative supervision of the activities of local authorities shall normally aim only at ensuring compliance with the law and with constitutional principles, and that administrative supervision shall be exercised in such a way as to ensure that the intervention of the controlling authority is kept in proportion to the importance of the interests which it is intended to protect. Thus the Charter does not give local authorities a full and independent sphere of activity, but makes them subject to administrative supervision.
Examination of the case file shows that on 6.10.2006, by 17 votes in favour and 7 against, with the participation of the mayor, the municipal council of Sur municipality, a first-tier municipality within the boundaries of Diyarbakır metropolitan municipality, adopted decision No. 61 on “multilingual municipal management”, in accordance with the report of the Education, Culture, Sport and Tourism Committee; on account of this decision and of the steps taken to that effect, civil-service inspectors conducted an investigation; and in view of the points that emerged as a result of the inspection, the matter was referred to our Division under Sections 30 and 44 of Law No. 5393.
In the matter under consideration, the report of the Education, Culture, Sport and Tourism Committee, which formed the basis for Sur municipal council’s decision, stated the following: public surveys of the town’s population had been conducted and had established that 24% of the local population spoke Turkish, 72% Kurdish, 1% Arabic and 3% Syriac and Armenian; in order that all the municipality’s activities might reach citizens of different ethnic origins more effectively, future work would have to be done with this factor in mind, on the basis of these findings; in order to deliver municipal services to the public more reliably and make educational, cultural and artistic activities easier to understand, current and future work would have to be based on a participatory and multilingual municipal management approach.
Combined examination of the information and documents filed by the Mayor of Sur and the Vice-Chair of Sur municipal council, and of the documents submitted by the Ministry of the Interior, reveals the following as regards both the implementation of the above-mentioned decision and the municipality’s activities prior to the decision:
- A thousand copies of a book entitled “Sur Municipality Survey” were printed in Turkish, Kurdish and English;
- Two thousand brochures entitled “Sur Municipality Activity Report, April 2004- April 2006”, describing the activities of Sur municipality, were distributed in Turkish and Kurdish, and five hundred Kurdish-language CDs were made of the Sur municipality activity report for the same period;
- Five thousand copies of a children’s magazine entitled “Shemamok” were distributed in Turkish and Kurdish;
- Twenty thousand brochures were distributed in Turkish, Kurdish, Syriac, Russian, Arabic and English, as well as twenty thousand brochures on keeping the town clean in Turkish and Kurdish;
- Five thousand copies of the municipal newsletter printed in Turkish and Kurdish were distributed free of charge;
- a CD was produced on the activities of Sur municipality;
- the Kurdish operating system entitled “Ubuntu” containing Kurdish software was downloaded onto two computers in the Directorate of Cultural and Social Affairs and five hundred CDs containing this software were publicised and distributed.
Under the legal rules quoted above, the services that municipalities are required to provide are intended to meet common local needs, and municipalities are responsible for ensuring that everyone benefits from these services equally and fairly, without any form of discrimination. As dictated by the concept of the rule of law, it is essential to afford this type of legal certainty to the beneficiaries of public services. It is therefore mandatory to safeguard fundamental rights.
In working to ensure that, in the light of local conditions, citizens who speak different languages and dialects benefit more reliably from municipal services and are informed about them, municipalities must not overstep the rules laid down by the Constitution and legislation. And the exercise of this right must remain within the limits established by the Constitution and legislation.
The decision in question and the manner in which it was implemented must be assessed in terms of the constitutional and legislative provisions quoted above and the rules laid down in the European Charter of Local Self-Government.
The rules governing the fundamental rights and freedoms enshrined in our Constitution are parallel to those set out in the Universal Declaration of Human Rights and the European Convention on Human Rights, and numerous international standards have been incorporated into domestic law by means of legislative amendments introduced at various times. In this way continuous efforts are made not only to prevent violations of the rights embodied in the treaties signed, but also to fulfil the positive obligations arising from those treaties by taking the necessary measures to protect rights and freedoms.
The status of international treaties in our domestic law is determined by the following rules set out in Article 90 of the Constitution: international treaties duly put into effect shall have the force of law; no application may be lodged with the Constitutional Court on the grounds that they are unconstitutional; in the event of disputes arising from the fact that international treaties and legislation concerning fundamental rights and freedoms, duly put into effect, contain different provisions on the same subject, the provisions of the international treaties shall take precedence.
Where practices relating to fundamental rights and freedoms are concerned, the basic principle is the existence of a concrete rule; if there is no such rule, the practice must be assessed in terms of existing rights and in the light of the legal rules determining the social order. In other words, a right not provided for in the existing rules can be requested, or a service resulting in the exercise of such a right can be provided to the public, only within the bounds of the existing rights and legal rules and on condition that it is not contrary to them. Otherwise, it will be a matter of the unlimited exercise of rights in breach of legal rules. This approach is stated and explained in international treaties, including the Universal Declaration of Human Rights, in articles entitled “Restriction of rights” and “Prohibition of the abuse of rights”; thus, limits are set on the exercise of the fundamental rights and freedoms provided for by international treaties and texts. These rules are embodied in Articles 13 and 14 of our Constitution.
Legal rules (in Laws Nos. 2923 and 3984) enable public and private radio and television companies to broadcast in the different languages and dialects traditionally used by Turkish citizens in their daily lives, and allow private courses to be opened for the teaching of these languages and dialects; the fact of an official institution arbitrarily broadening the scope of these rules and making [these languages and dialects] official instead of Turkish, under the guise of a language of information or on the pretext of “multilingual municipal management”, is clearly a violation of constitutional and legislative rules. Accordingly, in view of its content, the impugned municipal council decision cannot be regarded as the exercise of a right covered either by constitutional and legislative provisions or by the European Charter of Local Self-Government.
From this point of view, bearing in mind the municipal council decision concerned and the manner in which it was implemented, it is apparent that in exceeding the scope and purpose of the rights whose exercise is secured by the above-mentioned Laws Nos. 2923 and 3984 and in including the municipality’s activity report and software for the municipality’s computer in the scope of those rights, the municipality enabled a language other than the official language of the state to be used in official matters and procedures. In other words, the multilingual municipal management approach described in the municipal council decision is obviously inconsistent with constitutional and legal rules. It is therefore our conclusion and opinion that the decision exceeds the exercise of the fundamental rights and freedoms embodied and safeguarded by the Constitution and international treaties, and is contrary to the purpose and vision of those rules.
It is consequently clear that the decision taken by the municipal council is political in content, that the Mayor of Sur took part in this decision by signing it and that the conditions laid down in Sections 30 and 44 of Law No. 5393 are fulfilled. The request submitted by Muhlis Çapa and Ahmet Mikdat Güneş, members of Sur municipal council, that their membership of the council be allowed to continue on the grounds that they voted against the council’s decision has not been granted because Section 30 of Law No. 5393 on Municipalities, which regulates the dissolution of the municipal council, does not include a provision making this possible.
The Vice-Chair of Sur municipal council and the Mayor of Sur have filed applications claiming that the allegations concerning the mayor are unfounded because of the Diyarbakır 4th Assize Court’s judgment acquitting him in the matter; however, the offence with which he was charged, as indicated in the judgment, was “promoting a terrorist organisation or its purpose in the press”, and this bears no substantive or legal relation to the impugned municipal council decision.
For the reasons stated above, it was unanimously decided on 22.05.2007 to grant the request and dissolve Sur municipal council and remove the Mayor of Sur from office.