Parliamentary Assembly

Draft resolution

1Turkey has been under post-monitoring dialogue with the Parliamentary Assembly since 2004. In its Resolution 1925 (2013), the Assembly encouraged Turkey, a founding member of the Council of Europe and a strategic partner for Europe, to pursue its efforts to align its legislation and practices with Council of Europe standards and fulfil the remaining post-monitoring dialogue requirements. Turkey has continued to face a complex and adverse geopolitical situation with the war in Syria and in the surrounding countries and terrorist attacks on its territory. The ongoing conflict in Syria has brought further massive flows of refugees to Turkey. The Assembly reiterates its appreciation of the outstanding efforts made by the country since 2011 to host nearly 3 million refugees (of which 262 000 are in refugee camps), who are in need of accommodation, education and access to social and medical care. For over five years, Turkey has been implementing the “open door policy” to the Syrians who fled from the war environment in their country and, in compliance with its international obligations, has abided by the principle of non-refoulement. The Assembly expresses its appreciation of the measures taken by the Turkish authorities to improve the living conditions of Syrian refugees, in particular by allocating work permits since 15 January 2016. The Assembly also values the outstanding financial efforts of the State to address this issue, despite remaining problems, in particular the lack of access to any education for 400 000 Syrian child refugees.

2In August 2014, the country had the first direct election of the President of the Republic. Parliamentary elections were organised on 7 June 2015, and early parliamentary elections were held on 1 November 2015. While the Justice and Development Party (AKP) secured a majority in parliament in November 2015, the Peoples’ Democratic Party (HDP) – a political party with a pro-Kurdish stance, which had previously entered parliament though the election of independent candidates and subsequently formed a party group – entered parliament for the first time as a political party, despite the 10% electoral threshold, that the Assembly has repeatedly asked be substantially lowered.

3European Union integration remains a strategic objective for Turkey. In the context of the 2016 EU-Turkey Agreement on the migrant crisis, and the implementation of a roadmap towards liberalisation of the visa regime, the Assembly welcomes the recent ratification of Protocol No. 15 amending the European Convention on Human Rights (CETS No. 213); the Council of Europe Convention on Action against Trafficking in Human Beings (CETS No. 197); the Additional Protocol to the Convention on the Transfer of Sentenced Persons (ETS No. 167) and the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism (CETS No. 198). The Assembly notes that European Union integration remains a strategic goal for Turkey. It therefore reiterates its belief that the opening of additional chapters, in particular Chapter 23 (judiciary and fundamental rights) and Chapter 24 (justice, freedom and security), would help consolidate the reform process and reinforce the action undertaken by the Council of Europe for Turkey to align its legislation and practice with Council of Europe standards. Relations between Turkey and the European Union, which should be strengthened, will be of great importance not only for the stability and prosperity of the two sides, but for the entire region.

4Recent developments in Turkey pertaining to freedom of the media and of expression, erosion of the rule of law and the alleged human rights violations in relation to anti-terrorism security operations in south-east Turkey have, however, raised serious questions about the functioning of its democratic institutions. These findings are corroborated by recent reports adopted by several Council of Europe monitoring mechanisms, such as the European Commission for Democracy through Law (Venice Commission), the Group of States against Corruption (GRECO), and the Commissioner for Human Rights, which have highlighted concurring and serious concerns that Turkey should address without further delay.

5The disclosure of the corruption cases on 17 and 25 December 2013 allegedly involving four ministers and the son of the then Prime Minister Mr Recep Tayyip Erdoğan, marked the beginning of changes in domestic political processes, in particular the adoption of restrictive legislation (amendments to the Criminal Code and the Code of Criminal Procedure in 2014 and Internal Security Act of March 2015) and enhanced control of the executive over the judiciary (amendments to the Law on the High Council for Judges and Prosecutor in 2014), the creation of special courts (“criminal peace judgeships”) in June 2014 and the adoption of Act No. 5651 on the Internet in March 2015, increasing the Telecommunications Directorate’s (TIB) capacity to block websites.

6The Assembly regrets that the peace talks to address the Kurdish issue collapsed in summer 2015, putting at stake the process of enlarging the cultural and linguistic rights of the Kurdish community, initiated and advanced in the preceding period, including by its political representation in parliament after the 2015 parliamentary and early parliamentary elections. The breakdown of the peace talks in July 2015 led to increased violence, bomb attacks by the PKK and retaliation measures by the Turkish security forces, including curfews imposed since December 2015 in several districts in south-east Turkey in order to carry out security operations.

7In this context, the Assembly is very concerned about the decision of 20 May 2016 by the Turkish Grand National Assembly to strip a large number of parliamentarians of their immunity from prosecution by temporarily suspending Article 83 (first sentence) of the Constitution, thus ruling out a case-by-case examination based on merit. Even though MPs from all political groups are concerned, the Assembly notes with concern that this decision disproportionately affects the opposition parties, in particular the People’s Democratic Party, some of whose members are facing terrorism-related charges for statements they have made.

8The Assembly recalls that parliamentary immunity should first and foremost enable elected representatives to work and express themselves without fear of harassment by the executive, the courts or political opponents. It is thus worried about the potential political consequences of this decision, which could damage parliamentary life and undermine the healthy political environment that Turkey needs to tackle today’s challenges, including terrorist threats and the urgent need to solve the Kurdish issue by political and peaceful means. While there are allegations about the lack of independence of the judiciary, the Assembly urges the Turkish authorities to ensure that the cases brought against parliamentarians are handled in due compliance with Council of Europe standards on fair proceedings and trials and respect for freedom of expression, which Turkey has pledged to uphold.

9In recent years, Turkey has faced massive and repeated terrorist attacks perpetrated by the so-called “Islamic State of Iraq and the Levant” (ISIL/Daesh), the “Kurdistan Workers' Party” (PKK) and the PKK-affiliated “Kurdistan Freedom Hawks” (TAK). These attacks caused hundreds of casualties in Ankara, Suruç, Istanbul, Bursa or Diyarbakır. In addition, the border city of Kilis has been targeted by shelling from Syrian territory. The Assembly unequivocally condemns these attacks and all terrorist action and violence perpetrated by the PKK, Daesh or any other organisation, which can on no account be tolerated. The Assembly stresses Turkey’s right and duty to fight terrorism and address security issues in order to protect its citizens. It recalls, however, that those security operations must be carried out in line with international law, and in accordance with the principle of proportionality and necessity. The right balance between security and individual liberties must be found in Turkey.

10The Turkish authorities are trying to keep a balance between freedom and security in the counter-terrorism operations in south-east Turkey, so as to protect citizens’ right to life, which is the most fundamental right, and to ensure public security. Security operations have dramatically intensified in south-east Turkey since August 2015. The Assembly is very worried about the human consequences of the lengthy, round-the clock curfews imposed in 22 districts, including Sur, Silvan (province of Diyarbakır), Nusaybin, Dargeait (province of Mardin), Sirnak Center, Cizre, Silopi, Idil (province of Sirnak) and Yüksekova (province of Hakkari). These curfews are affecting 1.6 million people and have resulted in the displacement of 355 000 people and in restrictions in access to water, electricity, education and health care, including emergency medical care, which has proved fatal for many residents. At least 338 civilians were reported dead by the Human Rights Foundation of Turkey as at 20 April 2016. According to the Ministry of the Interior, between 20 July 2015 and 13 May 2016, these operations resulted in 458 security officers being killed and 3 321 being wounded.

11The legal basis for these repeated and lengthy curfews, and their compatibility with Council of Europe standards, have raised doubts. The Assembly expects Turkey to amend its legal framework in line with the Venice Commission opinion on this issue, to be adopted in June 2016.

12Despite efforts deployed by the Turkish authorities to provide the displaced persons with food and accommodation, temporary jobs in State agencies and social aid, including compensation for lost income, the future of the displaced persons is uncertain. It seems that large parts of the areas under curfew were destroyed during and after the curfews, and during the subsequent clearance operations to remove buried explosive devices. The situation is especially regrettable in the ancient part of Sur, which was classified as a Unesco world cultural heritage site in 2015.

13There have been allegations of serious human rights violations, notably in Cizre, which require due and effective investigation, including the collection of evidence before the areas are cleared. The Assembly believes that access to information through the increased presence of the media and accurate and unbiased media coverage of the situation in south-east Turkey, transparency of the procedures, as well as the prosecution of those who committed crimes or abuses of human rights, would contribute towards restoring confidence. The Assembly notes that Turkey is one of the 116 countries offering an open invitation to the United Nations Special Procedures since 2001. The Assembly welcomes the recent visit of the United Nations Working Group on Enforced or Involuntary Disappearances in March 2016, of Mr Nils Muižnieks, Council of Europe Commissioner for Human Rights, to south-east Turkey in April 2016 and the announced visit of representatives of the United Nations High Commissioner for Human Rights. It invites Turkey to consider setting up a fact-finding team, including independent experts and personalities trusted by all sides of Turkish society, to observe the human rights situation in the affected districts and publish credible reports. The Assembly further encourages Turkey to strengthen national independent human rights bodies so as to increase citizens’ confidence in, and use of, these mechanisms.

14The Assembly notes that administrative investigations have been initiated against 63 security personnel due to their misconduct during the operations in south-east Turkey. It expects the Turkish authorities to carry out effective investigations into all other allegations of misconduct by security personnel during these operations.

15The adoption by the government of an emergency decree on expropriation on 21 March 2016 related to Sur (Diyarbakır) has raised concern among displaced persons. The lack of information about legal procedures, future urban construction projects and the right of displaced persons to return to live in their neighbourhoods poses many questions. Lack of transparent information fuels fears and insecurity among those concerned. The Assembly expects Turkey to take due care of the needs of the local population and ensure fair compensation for the losses suffered by civilians in case of expropriation procedures, which should be conducted in line with Council of Europe standards and taking account of property rights and their safeguards, as guaranteed by the European Convention on Human Rights.

16The Assembly is also deeply concerned that the tensions and clashes could spread to other parts of Turkey. It urges the PKK to stop its terrorist attacks and lay down its arms. The Assembly also urges all those involved to resort to political means to stop the escalation of violence. The Turkish Parliament, which could provide a political forum for a peaceful resolution of the conflict, should consider putting in place mechanisms to reactivate the peace process, including a joint, cross-party parliamentary commission, or a “truth and reconciliation” commission that would allow for a fresh impetus and the healing of past traumas. Political solutions need to be discussed in parliament by all the political forces involved. A due system of parliamentary inviolability – which excludes statements inciting hatred, violence or the destruction of democratic rights and freedoms – is thus necessary to ensure that issues of public interest can be debated by elected representatives without fear of executive or judicial interference.

17The Assembly is also worried by the lack of political dialogue in the region and the arrests and destitution of democratically elected mayors in south-east Turkey on charges of “aiding and abetting a terrorist organisation”. The Assembly calls on political figures to refrain from acts and statements that could be perceived as further fuelling the tensions.

18The announced preparation of legislation which would empower Governors to appoint new mayors also raises questions with regard to the respect of the provisions of the European Charter of Local Self-Government (ETS No. 122), which Turkey ratified in 1992. The Assembly reiterates its call on Turkey, in line with the post-monitoring dialogue requirement, to further introduce decentralisation in full respect of the territorial integrity of the country and to ratify the European Charter for Regional or Minority Languages (ETS No. 148) and the Framework Convention for the Protection of National Minorities (ETS No. 157), which could also contribute to restoring confidence among communities.

19With regard to freedom of expression and of the media, the Assembly shares the concerns of the Council of Europe Commissioner for Human Rights about “the alarming scale of recourse to an overly wide notion of terrorism to punish non-violent statements and criminalisation of any message that merely coincides with the perceived interests of a terrorist organisation”. The Assembly urges Turkey to fully comply with its obligations under all the human rights treaties it has ratified. The Assembly remains concerned about the extensive interpretation of the Anti-Terror Law, which contradicts Council of Europe standards and leads to the criminalisation and prosecution of human rights defenders and lawyers. It thus reiterates the call it made in 2013 for Turkey to review its definitions of offences related to terrorism and membership of a criminal organisation in line with the case law of the European Court of Human Rights.

20Recalling its Resolution 2035 (2015) on the protection of the safety of journalists and of media freedom in Europe, the Assembly is concerned about the latest developments in the field of freedom of expression and freedom of the media, which should be understood in the light of the case law of the European Court of Human Rights with respect to Article 10 of the Convention. There are concerns that changes in recent years in ownership of media companies serving business interests were motivated by, and have resulted in, significant political influence on the media.

21The Assembly believes that the abusive application of Article 299 (Insulting the President of the Republic) – there were about 2 000 cases in two years against journalists and academics, but also ordinary citizens – is leading to an undue restriction of freedom of expression, considering the case law of the European Court of Human Rights with respect to Article 10 of the Convention. It recalls in this respect that defamation cases can be handled under civil law procedures or under the general provisions of Article 125 of the penal code on insult.

22The Assembly is deeply concerned about the prosecution of investigative journalists following their investigations into topics of general interest. It should be possible to conduct domestic and foreign investigative journalism on all topics, and in all regions. The Assembly is appalled by the harsh prison sentences issued against these journalists. It expects the judicial institutions to take future decisions in the light of the well-established case law of the European Court of Human Rights, and the authorities to harmonise the legislation and its interpretation by domestic courts with Council of Europe standards. In this respect, the Assembly praises the important role played by the Constitutional Court of Turkey to secure freedom of expression and of the media, and individual applications to the Constitutional Court, which remain an effective mechanism to protect rights covered by the European Convention on Human Rights.

23The Assembly remains concerned about the large number of websites blocked (110 000) and Twitter takedown requests. Blocking websites appears to be a highly disproportionate measure, which impedes the public’s right to have access to, and to be provided with, information on the Internet, and negatively impacts media pluralism and free expression. It urges Turkey to upgrade its legal framework in line with the European Convention on Human Rights, in particular to review Act No. 5651 on the Internet, in line with the recommendations of the Venice Commission (to be adopted in June 2016) on the regulation of publications on the Internet and combating crimes committed by means of such publications.

24The Assembly recalls that journalists and other media actors make an essential contribution to public debate and the opinion-making processes needed in a democratic society. Council of Europe member States have a positive obligation to ensure freedom of expression, protection of journalists and access to information, and to create the conditions to enable them to act as public or social watchdogs and inform the public on matters of general and public interest. Too many measures currently taken by the authorities, including investigations, prosecutions and the interpretation of the Penal Code by domestic courts, have a chilling effect. Attacks on journalists and media outlets, seizure of the media (which undermines property rights), pressure on journalists and punishment of journalists doing their job lead to self-censorship. The Assembly therefore urges Turkey to secure a favourable environment for freedom of expression as guaranteed by Article 10 of the Convention and to implement Recommendation CM/Rec(2016)4 of the Committee of Ministers on the protection of journalism and safety of journalists and other media actors.

25The Assembly believes that further improving the legal framework would help the country to overcome current restrictions to freedom of expression. In the light of the March 2016 opinion of the Venice Commission, the Assembly invites Turkey to:

25.1repeal Article 299 of the Penal Code (Insulting the President of Republic);

25.2repeal Article 301 (Degrading the Turkish Nation, the State of the Turkish Republic, the Organs and Institutions of the State) or amend it to ensure that all the notions used in it are clear, specific and predictable, and that its application is limited to statements inciting violence and hatred and that its interpretation by the domestic courts is in line with the case law of the European Court of Human Rights;

25.3limit the use of Article 216 and resort to – proportionate – criminal sanctions only in cases of open incitement to violence, armed resistance or uprising, and not to punish harsh criticism against government policies. Moreover, it should only be applied in extreme cases of religious insults that intentionally and severely disturb public order, or calls for public violence, and not for mere blasphemy;

25.4ensure a strict interpretation of Article 314 (Membership of an Armed Organisation) so as to limit it to cases which do not involve the exercise of the rights to freedom of expression and assembly, in compliance with the established criterion in the case law of the Court of Cassation that acts attributed to a defendant should show “in their continuity, diversity and intensity” his or her “organic relationship” with an armed organisation or whether his or her acts may be considered as committed knowingly and wilfully within the “hierarchical structure” of the organisation.

26The Assembly encourages the Turkish authorities to address these proposals in the framework of the working group on freedom of expression created in 2016 by the Ministry of Justice and the Council of Europe, as part of Turkey’s Action Plan to prevent violations of the European Convention on Human Rights. It expects the necessary amendments to the legislation to be prepared and adopted in consultation with the Council of Europe.

27It urges Turkey to further co-operate with the Council of Europe and implement the recommendations by GRECO when carrying out the Judicial Reform Strategy, which aims at establishing a more reliable justice system, executing judicial services in an independent and impartial way and concluding trials within a reasonable time. It welcomes, as a first step, the adoption of the “Action Plan on Enhancing Transparency and Strengthening the Fight Against Corruption (2016-2019)” on 30 April 2016 to address these issues.

28With regard to respect for the rule of law, the Assembly is very concerned about the recent statements made by the President of the Republic and ministers not to respect a decision of the Constitutional Court on the unlawfulness of the pretrial detention of investigative journalists, which was based on the case law of the European Convention on Human Rights. The Assembly urges Turkish officials to refrain from unduly interfering in the judiciary and challenging the rule of law. The Assembly appreciates however that all decisions of the Constitutional Court resulting from individual applications have been implemented.

29Independence of the judiciary is guaranteed by the Constitution. A number of judicial packages have been launched since the constitutional referendum of 2010. They provide for stronger involvement of elected judges and prosecutors in the High Council of Judges and Prosecutors, which are positive moves. However, the recent developments and amendments to the Law on the High Council of Judges and Prosecutors in 2014 raised the issue of the lack of independence of the judiciary and undue interference by the executive.

30GRECO noted in its March 2016 report that the appointment of the elected members of the High Council of Judges and Prosecutors in 2014, the use of disciplinary proceedings, including the dismissal of a number of members of the judiciary, and the potential influence by the executive within this body, have further triggered the debate concerning the role and the independence of the High Council of Judges and Prosecutors, which seriously undermines the trust of the public in its judicial institutions. The Assembly shares these concerns and calls on Turkey to:

30.1implement GRECO’s recommendations, in particular to strengthen the security of tenure of judges and to ensure that evaluations of the performances of judges and prosecutors, as well as disciplinary procedures against them, are free from undue influence;

30.2further revise the Law on the High Council of Judges and Prosecutors to reduce the influence of the executive within the Council.

31The Assembly also notes that in 2014 the fight against terrorism was extended to the Gülen Movement (the so-called “parallel State structure”), a former ally of the AKP. The purge to clear the State institutions of alleged Gülenist followers raises question in respect of procedural guarantees. This move particularly affected the judicial system, where the large number of transfers, arrests and detentions of judges and prosecutors could have a deterrent effect on the members of the judiciary.

32The Assembly concludes that the latest developments pertaining to freedom of the media and of expression, erosion of the rule of law and the alleged human rights violations in relation to the anti-terrorism security operations in south-east Turkey constitute a threat to the functioning of democratic institutions and the country’s commitments to its obligations towards the Council of Europe. The Assembly will continue to follow closely the issues raised in this report, in particular the situation in south-east Turkey with respect to human rights, on the basis of information provided by its Monitoring Committee. The Assembly recalls that the Turkish authorities are invited to fulfil the remaining requirements pertaining to the post-monitoring dialogue with the Parliamentary Assembly. It reiterates the readiness of the Council of Europe, in particular the Venice Commission, to support the Turkish authorities’ efforts in this respect.