Resolution 1380 (2004)1
Honouring of obligations and commitments by Turkey
1. Turkey has been a member of the Council of Europe since 1949 and as such
has undertaken to honour the obligations concerning pluralist democracy,
the rule of law and human rights arising from Article 3 of the Statute. It
has been the subject of a monitoring procedure since the adoption, in 1996,
of Recommendation 1298 on Turkey’s respect of commitments to constitutional
and legislative reforms.
2. On 28 June 2001, in Resolution 1256 concerning the honouring of obligations
and commitments by Turkey, the Parliamentary Assembly welcomed the progress
made by Turkey but decided to continue the monitoring process and review
progress, pending a further decision to close the procedure.
3. The Assembly notes that, despite a serious economic crisis in 2001, the
political instability that led to early elections in November 2002 and the
uncertainties caused by the war in Iraq, the Turkish authorities have not
deviated from their efforts to implement the reforms necessary for the country’s
modernisation. Turkey has achieved more reforms in little more than two years
than in the previous ten.
4. The Assembly welcomes the adoption in October 2001 of important changes
to the constitution, seven reform packages approved by parliament between
February 2002 and August 2003 and numerous other laws, decrees and circulars
to implement these reforms. It also welcomes the changes made to the constitution
in May 2004, which paved the way for the ratification of the Statute of the
International Criminal Court.
5. It notes with satisfaction that, despite initial concern in November
2002 about the accession to power of the Justice and Development Party, led
by Mr Erdogan, the new government, with the unstinting support of the only
opposition party, the Republican People’s Party (CHP), has so far made
good use of its absolute majority in parliament to expedite and intensify
the reform process.
6. With regard to pluralist democracy, the Assembly recognises that Turkey
is a functioning democracy with a multiparty system, free elections and separation
of powers. The frequency with which political parties are dissolved is nevertheless
a real source of concern and the Assembly hopes that in future the constitutional
changes of October 2001 and those introduced by the March 2002 legislation
on political parties will limit the use of such an extreme measure as dissolution.
The Assembly also considers that requiring parties to win at least 10% of
the votes cast nationally before they can be represented in parliament is
excessive and that the voting arrangements for Turkish citizens living abroad
should be changed.
7. With regard to institutional arrangements, the Assembly congratulates
Turkey on reducing the role of the National Security Council to what it should
never have ceased to be, namely a purely consultative body concerned with
defence and national security. The amendment to Article 118 of the constitution
and those to the legislation governing the National Security Council and
its secretariat represent fundamental progress that is to be welcomed. With
the changes made to the constitution in May 2004, Turkey completed this reform
by taking the necessary steps to exclude army representatives from civil
bodies such as the Higher Education Council (YÖK) and
to establish parliamentary supervision of military activities, particularly
from a financial standpoint. The Assembly also calls on the Turkish authorities
to exclude any army representatives from the Supreme Board of Radio and Television (RTÜK).
Despite Turkey’s geostrategic position, the Assembly also demands that
Turkey recognise the right of conscientious objection and introduce an alternative
civilian service.
8. The Assembly welcomes the fact that the maximum period of police custody
for collective offences has been reduced from fifteen to four days and that
all detained persons are entitled to see a lawyer from the first hour of
police custody.
9. The Assembly also welcomes the Turkish authorities’ decision to
abolish the state security courts, following the abrogation of Article 143
of the constitution in May 2004. It strongly urges Turkey, as it did in 2001,
to draw on the experience of the Venice Commission for any further constitutional
revisions. It believes that the 1982 Constitution, which has already been
frequently modified, would gain in coherence and clarity from a complete
overhaul. The Assembly also welcomes the fact that the Turkish authorities
have started to consider granting individuals direct access to the Constitutional
Court.
10. The Assembly also calls on the Turkish authorities to finalise without
delay the draft proposal to create an ombudsman institution and congratulates
Turkey on the steps taken to improve dialogue with NGOs, particularly via
the new composition of regional human rights councils and the more flexible
legislation on associations. NGOs’ freedom of action nevertheless needs
to be strengthened.
11. The Assembly welcomes Turkey’s determination to fight corruption,
particularly through the establishment of several parliamentary committees
of inquiry, its approval in January 2003 of an emergency anticorruption plan
and its ratification of the Council of Europe Criminal and Civil Law Conventions
on Corruption (ETS Nos. 173 and 174) in September 2003 and March 2004 respectively.
It hopes that Turkey will shortly submit the instruments of ratification
of the Convention on Laundering, Search, Seizure and Confiscation of the
Proceeds from Crime (ETS No. 141), already ratified by the Turkish Parliament
on 16 June 2004.
12. The Assembly welcomes the significant advances in women’s rights
resulting from the constitutional revisions of October 2001 and May 2004,
the entry into force in January 2002 of the new Civil Code and the August
2002 Job Security Act, and welcomes the fact that Article 10 of the constitution,
as amended in May 2004, now expressly stipulates that the state has a duty
to guarantee equality between men and women. Modern states must provide for
equality between all their citizens, particularly as regards access to employment,
public and elective offices, health and education. It calls on the Turkish
authorities to introduce programmes to eradicate female illiteracy, which
is essential for women to be able to exercise their rights. The Assembly
has noted with satisfaction that the Criminal Code was amended in July 2003
to make it impossible to plead mitigating circumstances for honour crimes.
It calls on the authorities to take a clear stand against honour crimes and
domestic violence and to offer women support, particularly by increasing
the number of refuges.
13. Regarding fundamental freedoms, the Assembly congratulates Turkey for
finally abolishing the death penalty, by ratifying Protocol No. 6 of the
European Convention on Human Rights in November 2003 and signing Protocol
No. 13 in January 2004. Following the changes made to the constitution in
May 2004, Protocol No. 13 should be ratified very shortly.
14. It also congratulates Turkey for its commitment to combating torture
and impunity – the authorities’ zero tolerance policy is starting
to bear fruit. Improvements to conditions of police custody, greater safeguards
for the rights of the defence and entitlement to a medical examination have
been welcomed by the European Committee for the Prevention of Torture and
Inhuman or Degrading Treatment or Punishment (CPT), whose recommendations,
including those relating to detention conditions, have been systematically
implemented. Although the latest report published by the CPT on 18 June 2004
recognises that important progress has been achieved, the Assembly agrees
with the CPT that the Turkish authorities must remain vigilant and ensure
that their instructions are followed throughout the country.
15. The Assembly considers that, as part of the fight against impunity,
abolishing the requirement to secure prior administrative approval to prosecute
officials charged with torture or inhuman or degrading treatment, removing
the power to suspend prison sentences or commute them into fines, making
it obligatory to investigate complaints from victims as a priority and requiring
prosecutors to conduct investigations personally all represent considerable
progress. It also notes that considerable efforts have been made to improve
police and gendarmerie training, with Council of Europe assistance.
16. The Assembly takes note of important measures to liberalise the legislation
on freedom of expression: Section 8 of the Anti-Terrorism Act has simply
been repealed, Articles 312, 159, 169 of the Criminal Code and Section 7
of the Anti-Terrorism Act have been amended to make them more compatible
with the case-law of the European Court of Human Rights and the legislation
on press-related offences has also been amended. However, the Assembly still
awaits progress on the offences of defaming or insulting the principal organs
of state, which should no longer be liable to imprisonment.
17. The Assembly notes that important progress has been made regarding freedom
of association. Under the amended Article 33 of the constitution, only the
courts may refuse to register associations’ statutes or dissolve or
suspend their activities. The 1983 Associations Act has been considerably
revised, particularly as regards prior scrutiny of associations’ activities.
Concerning freedom of assembly, meetings can now only be banned if they pose
a clear threat to public order.
18. Turning to freedom of religion and the treatment of religious minorities,
the Assembly congratulates the Turkish authorities for amending the legislation
on religious foundations and on constructions, which will now allow the bodies
concerned to buy and sell property and build new places of worship.
19. Turkey is a secular Muslim state. This unique state of affairs is evidence
of its attachment to European democratic values, based on tolerance and mutual
respect. Turkey must ensure that the state’s neutrality continues to
be respected and that the religious sphere does not interfere with the principles
of governance of a modern society.
20. The Assembly welcomes the lifting of the state of emergency in the remaining
four south-eastern provinces where it was still in force, and the passing
of the Reintegration Act in July 2003, which has permitted the release, among
others, of several thousand Turkish citizens of Kurdish origin and a return
to normal life for hundreds of other people who have given themselves up
to the authorities. The Assembly also hopes that parliament will shortly
approve the draft legislation to compensate the victims of terrorism or of
measures taken by the government to combat terrorism. Nearly five years after
the end of hostilities, the Assembly believes that the time has come to invest
more in the economic and social reconstruction of the south-east. It notes
the Turkish authorities’ commitment to developing the “village
return” programme, with the assistance of the World Bank and the United
Nations. The Assembly also welcomes the recent adoption of the law encouraging
investments in provinces with low per capita income.
21. The Assembly regrets that Turkey has still not ratified the Framework
Convention for the Protection of National Minorities (ETS No. 157) and the
European Charter for Regional or Minority Languages (ETS No. 148). Nevertheless,
it considers that the first steps have been taken towards recognising the
cultural rights of members of different ethnic groups and notably of persons
of Kurdish origin. The constitution has been revised and no longer bans the
use of languages other than Turkish; it is now possible to open language
schools for studying the Kurdish language or languages, radio and television
broadcasts are now authorised in Kurdish and parents may choose Kurdish first
names for their children. The Assembly strongly encourages the Turkish authorities
to continue promoting cultural and linguistic diversity, and hopes that the
measures will have a real impact on the daily lives of those concerned, particularly
their access to the judicial and administrative authorities and the organisation
of health care.
22. The Assembly notes that the points it made in Resolution 1256 have been
dealt with satisfactorily:
i. it congratulates the Turkish authorities for introducing the necessary
changes to domestic legislation in 2002 and 2003 to permit the retrial
of cases following findings by the Court of a violation of the Convention,
which in particular has permitted the reopening of the trial of Leyla Zana
and three other members of parliament in the Ankara Security Court. Nevertheless,
the Assembly deeply regrets the decision handed down by the Ankara Security
Court on 21 April 2004, at the end of the retrial, upholding the prison
sentences they were given in 1994. It invites the Turkish Court of Cassation
to examine with the utmost care the complaints currently before it concerning
the way in which the trial was conducted and is pleased to note the court’s
decision of 9 June 2004 to release them in the meantime;
ii. it also notes that more than five years after the judgment awarding
Ms Loizidou just satisfaction, and in accordance with Article 46 of the
Convention by which, like all the other parties to the Convention, it is
bound, Turkey has finally agreed unconditionally to make the required payment.
It reminds the Turkish authorities that they must still execute the judgment
on the merits in the same case, delivered in 1996, and in particular adopt
general measures to avoid repetition or continuation of the violations
found by the Court. It asks Turkey to continue to co-operate fully with
the Committee of Ministers in its difficult task of securing the proper
implementation of judgments, particularly in the Cyprus v. Turkey inter-state
case.
23. The Assembly therefore invites Turkey, as part of its authorities’ current
reform process, to:
i. carry out a major reform of the 1982 Constitution, with the assistance
of the Venice Commission, to bring it into line with current European standards;
ii. amend the electoral code to lower the 10% threshold and enable Turkish
citizens living abroad to vote without having to present themselves at
the frontier;
iii. recognise the right of conscientious objection and establish an alternative
civilian service;
iv. establish the institution of ombudsman;
v. ratify the Convention on Laundering, Search, Seizure and Confiscation
of the Proceeds from Crime, the Framework Convention for the Protection
of National Minorities, the European Charter for Regional or Minority Languages
and the Revised European Social Charter and accept the provisions of the
Charter which it has not already accepted;
vi. complete the revision of the Criminal Code, with the Council of Europe’s
assistance, bearing in mind the Assembly’s observations on the definitions
of the offences of insulting language and defamation, rape, honour crimes
and, more generally, the need for proportionality arising from the European
Court of Human Rights’ case-law on freedom of expression and association;
vii. undertake, with the Council of Europe’s assistance, a comprehensive
examination of the legislation dating from the period of the state of emergency,
particularly that relating to association, trade unions and political parties,
to ensure that as far as possible it reflects the spirit of recent reforms;
viii. reform local and regional government and introduce decentralisation
in accordance with the principles of the European Charter of Local Self-Government
(ETS No. 122); as part of the reform, to give the relevant authorities
the necessary institutional and human resources and arrange redistribution
of resources to compensate for the underdevelopment of certain regions,
particularly south-east Turkey, and move from a dialogue to a formal partnership
with United Nations agencies to work for a return, in safety and dignity
of those internally displaced by the conflict in the 1990s;
ix.continue the training of judges and prosecutors as well as the police
and gendarmerie, with the Council of Europe’s assistance;
x. lift the geographical reservation to the 1951 Geneva Convention relating
to the Status of Refugees and implement the recommendations of the Council
of Europe Commissioner for Human Rights on the treatment of refugees and
asylum seekers;
xi. pursue the policy of recognising the existence of national minorities
living in Turkey and grant the persons belonging to these minorities the
right to maintain, develop and express their identity and to apply it in
practice;
xii. continue efforts to combat female illiteracy and all forms of violence
against women.
24. The Assembly considers that over the last three years Turkey has clearly
demonstrated its commitment and ability to fulfil its statutory obligations
as a Council of Europe member state. Given the progress achieved since 2001,
the Assembly is confident that the Turkish authorities will apply and consolidate
the reforms in question, the implementation of which will require considerable
changes to its legislation and regulations, extending beyond 2004. The Assembly
therefore decides to close the monitoring procedure under way since 1996.
25. The Assembly will continue, through its Monitoring
Committee, the post-monitoring dialogue with the Turkish authorities on the
issues raised in paragraph 23 above, and on any other matter that might arise
in connection with Turkey’s obligations as a Council of Europe member
state.
1 Assembly
debate on 22 June 2004
(18th Sitting) (see Doc.
10111, report of the Committee
on the Honouring of Obligations and Commitments by Member States of the
Council of Europe (Monitoring Committee), co-rapporteurs: Ms Delvaux-Stehres
and Mr Van den Brande).
Text adopted by the Assembly on 22 June 2004 (19th Sitting).
