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Resolution 1622 (2008) Final version
Functioning of democratic institutions in Turkey: recent developments
1. The Parliamentary Assembly recalls
that, in its Resolution
1380 (2004) on honouring of obligations and commitments
by Turkey, it decided to close the monitoring procedure for Turkey,
acknowledging the progress achieved in the reform process and confident
that the Turkish authorities would pursue and consolidate these reforms,
the implementation of which would require considerable changes to
its legislation and regulations in the years to come. The Assembly
decided to continue the post-monitoring dialogue with Turkey, through
its Committee on the Honouring of Obligations and Commitments by
Member States of the Council of Europe (Monitoring Committee), with
regard to 12 issues that Turkey was invited to address as part of
the reform process undertaken by its authorities.
2. The Assembly notes with satisfaction that the Government of
Turkey, led by Prime Minister Erdogan, has stood, for over five
years, for strong economic growth and political reforms, which has
allowed the country to attract the support of investors thanks to
its continuing macro-economic stability and its pursuit of privatisations,
and made possible the opening of accession negotiations with the
European Union in October 2005. Since then, Turkey has made continuous
efforts to meet the Copenhagen criteria, including the need to achieve
“stability of institutions guaranteeing democracy, the rule of law
and human rights”, in line also with the statutory obligations incumbent
on it as a Council of Europe member state.
3. However, reforms were halted in spring 2007 when a political
crisis erupted as a result of the failure of the Turkish Grand National
Assembly (hereafter “the parliament”) to elect a new President of
the Republic. This crisis led to early parliamentary elections in
July 2007, considered by the Assembly and other international observers
as generally in compliance with Turkey’s commitments as a member
state of the Council of Europe and European standards for free and
fair elections. The Assembly notes that the high voter turnout confirmed that
confidence in the democratic process exists in Turkey.
4. Having obtained 46.6% of the votes at the July 2007 elections,
the Justice and Development Party (hereafter AK Party) of Prime
Minister Erdogan ensured a large absolute majority. The Assembly,
while regretting the Turkish authorities’ failure to comply with
its previous calls to lower the 10% electoral threshold, notes that
the current parliament is more representative of the country’s political
diversity than the previous one, representing about 90% of the opinions
of the electorate.
5. However, a fresh crisis followed the adoption by the parliament
on 9 February 2008 of changes to the constitution and the law on
higher education which would ease the Muslim headscarf ban at universities.
The amendments were considered contrary to secular principles and
declared unconstitutional by the Constitutional Court on 5 June
2008.
6. In the meantime, on 14 March 2008, judicial proceedings were
instituted by the Chief Prosecutor of the Supreme Court of Turkey
to dissolve the ruling AK Party on the grounds that the party had
become a “centre of anti-secular activities” and ban 71 of its members,
including President Gül and Prime Minister Erdogan, as well as 39
members of parliament, from politics for five years. The case is
pending before the Constitutional Court.
7. The Assembly stands firm for state secularity in the Council
of Europe member countries. However, the criteria of secularism
cannot be applied to political parties, as political parties inspired
by the moral values of a religion are widespread in most Council
of Europe member countries. When such a party is in government and the
government passes anti-constitutional decisions, legal action should
be taken against those decisions and not against the political party
behind them.
8. The Assembly is concerned that, regardless of its outcome,
the lawsuit against the ruling party, as well as the Prime Minister
and the President of the Republic, is seriously affecting political
stability in the country, as well as the democratic functioning
of state institutions, and is delaying urgent economic and political
reforms.
9. At the same time, the Assembly underlines that effective separation
of powers and the independence of the judiciary are fundamental
principles of a democracy based on the rule of law which should
be fully guaranteed by all state institutions. No influence should
be exercised on the Constitutional Court of the country. In this
respect, the Assembly is confident that the latter will apply European
standards regarding the dissolution of political parties resulting
from the case law of the European Court of Human Rights (the Court)
on Articles 10 (freedom of expression) and 11 (freedom of assembly
and association) of the European Convention on Human Rights (the
Convention – ETS No. 5) and the Guidelines on prohibition and dissolution
of political parties and analogous measures, adopted by the European
Commission for Democracy through Law (Venice Commission) of the
Council of Europe in December 1999.
10. The Assembly notes that respect for the principle of proportionality
is of special importance with regard to the dissolution of political
parties in view of their essential role in ensuring pluralism and
the proper functioning of democracy. It recalls that the Court has
repeatedly stated that the dissolution of a political party, accompanied
by a temporary ban prohibiting its leaders from exercising political
responsibilities, is the most drastic measure; a measure of such
severity should be applied only in the most serious cases.
11. The Assembly also recalls its Resolution 1308 (2002) on restrictions
on political parties in the Council of Europe member states, in
which it underlined that, although democracies have the right to
defend themselves against extremist parties, the dissolution of
political parties should be regarded as an exceptional measure to be
applied only in cases where the party concerned uses violence or
threatens civil peace and the democratic constitutional order of
the country.
12. The Assembly notes that Turkey has a legacy of political party
closures, almost all of which have resulted in findings of violations
of Article 11 of the Convention. In its Resolution 1380 (2004) closing the
monitoring procedure for Turkey, the Assembly, emphasising that
the frequency with which political parties were dissolved was a
real source of concern, expressed the hope that in future the constitutional
changes of October 2001 and those introduced in the legislation
on political parties would “limit the use of such an extreme measure
as dissolution”.
13. It further notes that, in the light of these same reforms,
the Committee of Ministers in 2007 closed the supervision of the
execution of the Court judgments in all cases concerning the dissolution
of political parties in Turkey between 1991 and 1997, as it was
satisfied that the relevant judgments had been appropriately executed.
In so doing, the Committee of Ministers strongly encouraged the
Turkish authorities to pursue their efforts to give direct effect
of the Court’s case law in the implementation of Turkish law.
14. The current proceedings against the AK Party, regardless of
their outcome, spark a renewed debate about the legal basis for
the closure of political parties in the country and show that, despite
the above-mentioned reforms, the issue of dissolution of political
parties in Turkey is not closed. The Assembly notes that it has
become clear that further constitutional and legislative reforms
in this respect are necessary.
15. A full revision of the 1982 Constitution which, despite repeated
revisions, still bears the marks of the 1980 military coup d’état, and a comprehensive
review of the law on political parties are required in order to bring
these texts fully into line with European standards. In pursuing
such reforms, the Turkish authorities should in particular envisage
introducing stricter criteria for the dissolution of political parties,
such as condoning or inciting violence or overt threats to fundamental
democratic values, in line with the above-mentioned guidelines of
the Venice Commission.
16. The Assembly recalls that, when adopting Resolution 1380 and
closing the monitoring procedure for Turkey, it had invited Turkey,
as part of its reform process, to “carry out a major reform of the
1982 Constitution, with the assistance of the Venice Commission,
to bring it into line with European standards”. The need for a new,
civil constitution has now become more evident than ever.
17. In this regard, the Assembly notes the government’s initiative
to draft a new constitution and considers that this opens a window
of opportunity for a broad national debate involving all actors
of society. It encourages the government to finalise this process
in close co-operation with the Venice Commission. The new constitution should
in particular guarantee an appropriate system of checks and balances
and give a prominent place to the protection of human rights and
fundamental freedoms, in line with European standards, in order
to fully ensure the democratic functioning of Turkey’s institutions
and the consolidation of its modernisation and reform process.
18. At the same time, the Assembly, emphasising the importance
of effective separation of powers, urges all state institutions
to respect each other’s competences and join efforts to pursue,
with renewed vigour, the much-needed economic and political reforms
that will turn Turkey into a modern democracy.
19. All institutions in the member states are bound by the obligations,
commitments and principles of the Council of Europe. Taking into
account the separation of the judicial and the political powers,
the Assembly underlines that the judicial authorities also have
to respect these standards and principles and to act accordingly.
20. The Assembly asks its Monitoring Committee to intensify its
post-monitoring dialogue with Turkey, closely follow the development
of the democratic functioning of its state institutions and, in
particular, the constitutional drafting process, and if need be
seriously consider the possibility of re-opening the monitoring procedure
for Turkey.