Diyarbakır, where many civilizations lived and left a permanent mark lasting to date, also appears in front of us as a province keeping cultural heritage in the twilight of history alive and bearing evidence of them. Diyarbakır, where many religious believes and a lot of languages have joined together in the same atmosphere that they were living, forms a cultural pyramid.
Cultural diversity and heritage have been inclined to get lost owing to the fact that awareness to protect the history and culture has not efficiently been developed at present time and these are tried to be destroyed.
It is an unacceptable circumstance that our province officiating as host to many civilizations and people throughout the history and already continuing to embrace such diversity is sacrificed in the cause of political conflicts and that works on protection of this heritage are tried to be prevented.
Implementation of “Multilingual Municipality Service” put by our municipality located in the historical Sur city into practice with the decision of Municipal Council in 2006 in order to protect and serve cultural heritage as well as its works in relation to preserving historical heritage has become a target of attack on the political and legal ground.
Based upon this decision by our Municipal Council, a survey on population and language usage has firstly been conducted within the boundaries of our municipality, and then supplementary service implementation has been decided with regard to such languages.
However, the central political authority has removed us from office, but also criminal actions have been filed about the entire Municipal Council and the Mayor.
Filed actions and background information on developments here of have been presented as follows.
A- Administrative Proceedings about Dismissal;
1-
a- An action has been filed in 8th Department of Council of the State pursuant to the Annexed article 2 appended under the Law No. 3622 of Administrative Jurisdiction Procedures Law No. 2577 with regard to the request “Cancellation of the Municipal Council and Dismissal from the Mayor” on 27.02.2007 made by General Directorate of Local Administrations of Ministry of the Interior of the Republic of Türkiye. In the examination carried out by Ministry of the Interior, it has been requested that acts should be implemented in accordance with the subparagraph (n) of the article 30 of the Municipal Law No. 5393 and with the subparagraph (d) of the article 44 of the same law.
As justification, it has been claimed that the provisions of the article with the heading “Integrity of the State, Official Language, Flag, National Anthem, and Capital” included in the Article 3 of Constitution and the article with the heading “Supremacy and Binding Force of the Constitution” included in the article 11 of Constitution, and the article 2 of “Act No. 1353 of 1 November 1928 on the Adoption and Application of the Turkish Alphabet” have been infringed.
b- 8th Department of Council of the State, with its Judgment with Basis No. 2007/1315 and No. 2007/3101 on 22.05.2007, has given judgment in the direction of the cancellation of the municipal council and dismissal of the mayor by reason of the fact that circumstance for the cancellation of the municipal council and dismissal of the mayor have occurred as included in the articles 30 and 44 of the Municipal Law No. 5393 in compliance with the claim by Ministry of the Interior for acting contrary to the article with heading “Integrity of the State, Official Language, Flag, National Anthem, and Capital” specified by the article 3 of Constitution and the article 2 of “Act No. 1353 of 1 November 1928 on the Adoption and Application of the Turkish Alphabet. However, defenses have been ignored due to the fact that the Mayor and the Vice-President of Municipal Council have not submitted their defense in due time, while such judgment was being given.
2- Upon giving the judgment of the cancellation of the Municipal Council and dismissal of the Mayor, Vice-President of Municipal Council has disputed such judgment on behalf of Abdullah Demirbaş, the Mayor, and Municipal Council on 02.02.2007.
3- Following appeal, Plenary Session of Administrative Law Divisions of Council of the State, with its judgment No. 2007/1686 with Basis No. 2007/1323 on 27.07.2007, has decided to reverse the judgment of 8th Department of Council of the State, which has adjudicated based on the fact that the defense has not been submitted in due time although Vice-President of Municipal Council has submitted their defense before the court in time on behalf of the defendant Mayor and Municipal Council.
4- In spite of continuation of the proceedings, Governor’s Office of Diyarbakır has dismissed the municipal administration based upon the judgment by Council of the State on 27.06.2007 without waiting for the proceedings and the court decision to become final.
Thereupon, Bedri Turan, the Vice President of Sur municipality has brought an action for rescission with the file Basis No. 2007/160 at 1st Administrative Court of Diyarbakır on behalf of Abdullah Demirbaş, the Mayor, and Municipal Council on the grounds of the fact that it is impossible to cancel the municipal council and dismiss the mayor even though such judgment has not become final. The action has already been continuing.
5- Subsequently, the judgment has again been referred to 8th Department Court of Council of the State as contrary to the Annexed article 2 of Administrative Jurisdiction Procedures Law. As a result of examination made by the judges different from the members of 8th Department Court of Council of the State which have given the first judgment, the court has prejudged with its decision Basis No. 2007/5495 and No. 2007/4542 on 08.08.2007 which is same as the first judgment by 8th Department of Council of the State word for word and decided on rescission of the municipal council and dismissal of the mayor.
6- Governor’s Office of Diyarbakır has brought an action for rescission with Basis No. 2007/704 and on 04.06.2007 at 2nd Administrative Court of Diyarbakır for annulment of this act of the municipality in respect of taking decision of “multilingual business of governing of the city”, and such action is still being continued.
7- Upon giving the second judgment by 8th Department of Council of the State that is literally same as its first judgment, an appeal has been raised at Plenary Session of Administrative Law Divisions of Council of the State to appeal against such judgment on 27.08.2007.
8- In its final decision on appeal, Plenary Session of Administrative Law Divisions of Council of the State has made such unlawful judgment final by refusing the objection of appeal raised by Vice-President of Sur Municipal Council on behalf of Abdullah Demirbaş, the Mayor, and Municipal Council. Thus, the final decision on the rescission of Sur Municipal Council and the dismissal of the Mayor of Sur Municipality has been rendered. Legal proceedings shall be started at European Court of Human Rights.
B– Criminal Actions filed in this matter;
1- By reason of the judgment on “ Multilingual Business of Governing of the City” given about Abdullah Demirbaş, the Mayor of Sur Municipality and the Councilors of Sur Municipal Council, criminal action has been filed against totally 21 person, including Abdullah Demirbaş, the Mayor of Sur Municipality, Osman Baydemir, Mayor of the Metropolitan Municipality, and the Members of Sur Municipal Council; İlhan Diken, Bedri Turan, Nakşi Sayar, İ. Halil Sucu, N. Hikmet Akşahin, Nejla Akat, Selehattin Gönül, Yılmaz Dünen, Ramazan Karaşin, M. Ali Altınkaynak, Ali Şimşek, Ali Rıza Çiçekli, Habib Ak, M. Ali Ok, Abdullah Altuntaş, Abidin Kakdaş, Emine Dağ, Gazali Unat Aslan, Yusuf Özgen respectively, with the case file Basis No. 2007/126 of 2nd Criminal Court of First Instance of Diyarbakır, for the crimes of Misfeasance in Office, Unlawful Act to the Law on the Wearing of Hats and the Law on the Adoption and Application of the Turkish Alphabet, and Violating The Indivisible Integrity Of The State, and the first hearing has been made on 07.11.2007 and such action is still continuing. The second hearing of the case will be on 29.02.2008.
2- In the same subject matter once again,
Criminal action has been filed against totally 13 persons, including Abdullah Demirbaş, the Mayor of Sur Municipality, the Councilors of Sur Municipal Council, and M. Sait Güler, Yılmaz Dünen, Ramazan Karaşin, M. Ali Altınkaynak, M. Vecih Aydoğan, Mehmet Maçin, Nihat Çiftçi, Nalşi Sayar, Gazali Unat Aslan, Hurileyin Polat, Muhterem Özgen, Paşa Bingöl trough the employees working at Sur Municipality, with the case file Basis No. 2007/568 of 6th Criminal Court of First Instance of Diyarbakır, for the crime of Misfeasance in Office since they have issued Kurdish publications, based upon the judgment on “ Multilingual Business of Governing of the City”, and the first hearing hereof shall be made on 07.02.2008.
C- Dismissal of the Municipal Administration and criminal actions filed are contrary to the Law.
1- As it may be seen in the public survey administered in 2006 and in the booklet hereof, with regard to Diyarbakır’s social structure owing to dense migrations from the villages to the cities with the effect of the conflict period in the recent years, 72% of the society speaks Kurdish language as daily language, 24% of it speaks Turkish, and 4% of it speaks the other languages (Syriac 3% and Arabic 1%).
In other words, it is necessary to use local languages which are indispensable means in providing municipal services and to provide richness in services. It is only way to ensure participation of the society in the government.
2- In accordance with the Article 127 of Constitution of the Republic of Turkey, Local Administrative Bodies are defined by the provision “Local administrative bodies are public corporate entities established TO MEET THE COMMON LOCAL NEEDS of the inhabitants of provinces, municipal districts and villages, whose decision-making organs are elected by the electorate as described in law, and whose principles of structure are also determined by law” in the Article of our Constitution and when giving this definition, it is expressly stated that local administrative bodies feature “meeting the common local need” as main distinguishing feature in respect of the services to be provided by them.
As you may know, European Charter of Local Self-Government, which is upheld to approve by Turkey under the Law No. 3723 on 08.05.1991 in accordance with the provision of the Article 90 of our Constitution and confirmed with Council of Ministers’ decision No. 92/3398 on 06.08.1992, and that is published and become effective in the Official Gazette on 03.10.1992, has become a Domestic Law norm.
The articles of European Charter of Local Self-Governments as to our subject must be evaluated.
a-) In the article 3/1; when the provision “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” was being enacted, it has expressly been determined that the municipalities have the right to REGULATE AND MANAGE A SUBSTANTIAL SHARE OF PUBLIC AFFAIRS. In this context, it is clearly understood that the Constitution complies with the concept of common local needs.
b-) In accordance with the article 3/2, the matter of the fact that Local Authorities have the right of free entry in the fields of activity available to their own within the boundaries of the law with specifying its duties and authorities under Constitution and laws has been arranged.
c-) In the subparagraph 2 of the Article 4; the provision “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” has been enacted. Within this scope, it is clear that the necessity that duties not conferred to the other public bodies should be performed in care of the municipalities while duty distribution is made amongst the public bodies has been arranged.
d-) in the Article 11, the provision “Local authorities shall have the right of recourse to a judicial remedy in order to secure free exercise of their powers and respect for such principles of local self‑government as are enshrined in the constitution or domestic legislation” has been enacted.
In case that European Charter of Local Self-Government is construed together with its provisions with regard to our subject matter, it is expressly seen that the following matters are brought in the foreground: It has resolved that legal authorities have the right and power to make decisions freely and exercise them for the furtherance of the public welfare under its own responsibilities within the boundaries specified by the laws and HAVE FULL DISCRETION to be going at full blast in respect of all the subjects which they have been charged and which fall within their province or any other authority has not been charged, and that they HAVE THE RIGHT TO USE THEIR OWN POWERS FREELY. Since it has been admitted and come into force by out Country, it has had ability and obligation to be enforced as a domestic law norm.
In conclusion, If we consider such arrangement specified by Constitution of the Republic of Turkey and the Law No. 5393 together with European Charter of Local Self-Government, we come to the conclusion that the Municipalities has undertaken a legal function within the context of meeting local, civil and common requirements of the cities and the Municipalities have full discretion in respect of the usage of their rights and powers for the furtherance of the public welfare and in free manner during the performance of such functions, and that duties which has not been assigned to any other authority must be performed in care of the municipalities.
Diyarbakır Sur Municipality is still lacking an administration and tried to be administered by an officer assigned by the Governor’s Office of Diyarbakır. That is to say, it is tried to provide services with an assigned officer in lieu of the elected.
Although legal term is 60 days (Administration has been dismissed on 27.06.2007), any decision on election has not been taken in spite of the passing 110 days.
It is unacceptable on behalf of any legal and political logic on defending democracy that the Mayor and the entire Municipal Council of Diyarbakır Sur Municipality acting pursuant to legal arguments have been dismissed and criminal actions have been taken against them. 10.11.2007
Appendix: Defenses
Former Mayor of Sur Municipality
Abdullah DEMİRBAŞ
