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Resolution 1925 (2013) Final version
Post-monitoring dialogue with Turkey
1. In 2004, the Parliamentary Assembly
decided to close the monitoring procedure concerning Turkey and open
a post-monitoring dialogue, stating that it was confident that the
Turkish authorities would continue the process of reform and implement
the reforms that had been adopted. The Assembly notes that Resolution 1710 (2010) on
the term of office of co-rapporteurs of the Monitoring Committee
now requires the Assembly to debate in plenary the implementation
of Resolution 1380 (2004) on
the honouring of obligations and commitments by Turkey.
2. There has been co-operation with Turkey in the framework of
the post-monitoring dialogue in order to verify the implementation
of the 12 action requirements set out in paragraph 23 of Resolution 1380 (2004), namely:
reforming the 1982 Constitution; lowering the electoral threshold
of 10%; recognising the right of conscientious objection; establishing
the ombudsman institution; ratifying the Convention on Laundering, Search,
Seizure and Confiscation of the Proceeds from Crime (ETS No. 141),
the Framework Convention for the Protection of National Minorities
(ETS No. 157), the European Charter for Regional or Minority Languages (ETS
No. 148), the revised European Social Charter (ETS No. 163) as well
as accepting the provisions of the Social Charter not already accepted;
completing the revision of the Criminal Code (in particular, respect
for the need for proportionality arising from the case law of the
European Court of Human Rights (“the Court”) on freedom of expression
and association); examining legislation dating from the period of
the state of emergency; implementing the reform of local and regional
government, and decentralisation; managing the return of persons
internally displaced by the conflict in the 1990s; training of judges
and prosecutors as well as the police and gendarmerie; lifting the
geographical reservation to the Geneva Convention relating to the
Status of Refugees; pursuing a policy of recognising the existence
of national minorities living in Turkey and granting them the right
to maintain, develop and express their identity and to apply it
in practice; and continuing efforts to combat female illiteracy
and all forms of violence against women.
3. The Assembly underlines that the process of major reforms
is taking place against an extremely complex background in both
domestic and external terms. Over the last ten years, since the
Justice and Development Party (AKP) came to power, Turkey has entered
a period of political transition characterised by redefinition of the
role of the army; repositioning of the various branches of power
(such as the judiciary); the opening of major trials (Ergenekon,
Balyoz, “Union of Communities in Kurdistan” (KCK) that are having
a profound effect on society and the key political, military and
civil players as well as the Kurdish question in Turkey and the
conflict between the Turkish State and the Kurdistan Workers’ Party
(PKK) that has claimed over 40 000 victims. The Assembly also notes
that, in an unstable Middle East, the Syrian conflict has far-reaching
consequences in Turkey. The country has taken in over 220 000 refugees
since 2011, in a remarkable display of solidarity.
4. The Assembly notes that the accession negotiations between
Turkey and the European Union started in 2005. It welcomes the resumption
of the discussions and the possible opening of new chapters of the negotiations,
including Chapter 22 on regional policy and co-ordination of structural
instruments in the negotiations in 2013. It believes 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 underpin the action of the Council
of Europe.
5. The Assembly draws attention to the very significant economic
achievements made in a context of global crisis. This is confirming
Turkey’s position as a regional power which is engaged multilaterally
and has a vital role in strategic and energy terms. These are all
factors which make the stability of Turkey vital to the whole of the
eastern Mediterranean.
6. The Assembly also notes with interest that the “Arab Spring”
revolutions have affected almost all the Muslim countries of the
southern Mediterranean. Now, however, Turkey is the “benchmark”
for these countries which are experiencing great instability. Hence
the particular importance of continuing the expected reforms and
bringing them to a successful conclusion.
7. The Assembly points out that although many reforms were carried
out during the initial phase of the post-monitoring dialogue (2004-2010),
they responded only partially to some of the 12 action requirements
of Resolution 1380 (2004).
In this context, the Assembly notes the following advancements:
7.1. the ad hoc reform of certain
articles of the Criminal Code in 2005, and in particular amendment of
Article 301 punishing attacks on the “Turkish identity and nation”,
the complete repeal of which is requested;
7.2. the launch of training programmes for judges and prosecutors,
mainly concerning the 2005 Criminal Code;
7.3. the 2007 constitutional reform, which has paved the way
for the election of the president of the republic by direct universal
suffrage from 2014;
7.4. the adoption, since 2007, of measures to combat torture
and degrading treatment and to train the security forces;
7.5. the reinforcement of the provisions of the Criminal Code
concerning efforts to combat violence against women, the development
of major training programmes since 2006 and the adoption of the
law on the protection of the family in 2007;
7.6. the adoption of the Foundations Act, which came into force
in February 2008;
7.7. the adoption of the Act on Compensation for Damage arising
from Terrorism and Combating Terrorism, which came into force in
March 2008, and the launch of programmes for the return of displaced
persons and several socio-economic development programmes in south-eastern
Turkey;
7.8. the initiative “democratic opening” towards the Kurdish
community launched in 2009, which in particular opened up debate
about the Kurdish question, expanded the use of the Kurdish language
in the media and election campaigns and allowed the teaching of
Kurdish in universities;
7.9. the holding of a constitutional referendum in September
2010, which led to the opening of the trials of the leaders of the
coup d’état of 12 September 1980; reforming the procedures for the appearance
before civil courts of members of the military, including officers,
and persons accused of crimes against the security of the State;
increasing the number of members of the Constitutional Court and
the High Council of Judges and Prosecutors; adoption of the principle
of the establishment of the institution of ombudsman; introducing
the right of individual appeal to the Constitutional Court in matters falling
within the scope of the European Convention on Human Rights (ETS
No. 5); and broadening the scope and the substance of trade union
rights and the right to freedom of association;
7.10. the ratification of the revised European Social Charter
in 2007.
8. The Assembly underlines that all the measures adopted must
now be fully and rapidly implemented.
9. The Assembly therefore wishes to take a detailed look at the
implementation of Resolution 1380
(2004) and analyse the reforms carried out over the subsequent
period (2010-13), and the announced reforms.
10. With regard to the reform of the constitution, the electoral
threshold and enabling Turkish citizens living abroad to vote:
10.1. the Assembly takes note of the
establishment by parliament on 19 October 2011 of a 12-member “conciliation
committee” with equal representation of the four parties in parliament.
It is chaired by the Speaker of the Grand National Assembly, Mr Cemil
Çiçek. Its purpose is to revise the constitution inspired by the
military following the 1980 coup d’état. The Assembly underlines
in particular the exemplary nature of the membership of the committee
and the consensus rule adopted for decision making. It also welcomes
the consultation of all the driving forces in Turkish society initiated
by the conciliation committee, but nevertheless notes the difficulties
in reconciling different positions on some fundamental principles
such as citizenship and some key political issues such as decentralisation.
While the initial intention and determination were commendable,
the exercise is challenging. The Assembly expects the reform of
the constitution to be consistent with the standards set by the
Council of Europe;
10.2. it is up to the institutions and citizens of Turkey to
define the country’s future democratic system and type of governance.
The Assembly nevertheless invites the Turkish authorities to draw
on the expertise of the European Commission for Democracy through
Law (Venice Commission) before finalising the draft constitution.
It is essential to safeguard the institutional balance of powers
and the independence of the judicial system, clearly specify the
appropriate checks and balances and affirm respect for fundamental
rights and individual freedoms, while ensuring compliance with Council
of Europe standards;
10.3. the Assembly reiterates its call on the Turkish authorities
to take account of the Venice Commission’s recommendations on lowering
the electoral threshold of 10% – by far the highest in the 47 member
States of the Council of Europe – so as to widen the participation
in parliament of political parties, which play a key role in democracies;
10.4. the Assembly welcomes the fact that the Turkish authorities
have taken the necessary measures to implement the parliament’s
decision of May 2012 and enable Turkish voters living abroad to
vote in the 2014 presidential and 2015 parliamentary elections,
and in future elections.
11. With regard to completing revision of the Criminal Code (in
particular, respect for the need for proportionality arising from
the case law of the European Court of Human Rights on freedom of
expression and association), examination of the legislation dating
from the period of the state of emergency and the training of judges
and prosecutors as well as the police and gendarmerie:
11.1. the Assembly underlines that
Turkey has implemented judicial reforms to bring its legislation
into line with the European Convention on Human Rights, in particular
with the adoption of the “3rd package of judicial reforms” in July
2012 and the “4th package” in April 2003. In particular, the aim
of these reforms was to strengthen the presumption of innocence
and restrict pre-trial detention. It has to be said that, in spite
of some releases on bail or under court supervision, the short-term
results have not matched expectations. Persons being held in pre-trial
detention, including elected members of parliament, still account
for 23% of prisoners;
11.2. the Assembly welcomes the ratification, in September 2011,
of the United Nations Optional Protocol to the Convention against
Torture and other Cruel, Inhuman or Degrading Treatment or Punishment
(OPCAT) and invites Turkey to introduce a national torture prevention
mechanism;
11.3. while the Assembly notes the reforms undertaken in the
area of juvenile justice, it is nevertheless awaiting the conclusions
of the European Committee for the Prevention of Torture and Inhuman
or Degrading Treatment or Punishment (CPT) concerning the treatment
and conditions of detention of juveniles. The Assembly also urges
the authorities to improve conditions in all Turkish prisons, in
line with Council of Europe standards and practice;
11.4. in terms of freedom of expression, which is a very crucial
issue, while underlining the reforms carried out under the “3rd package”
to relax restrictions, the Assembly refers to Resolution 1920 (2013) on the state
of media freedom in Europe. It reiterates its explicit request that
Turkey conduct an in-depth review of the legal provisions and administrative
measures relating in particular to the provisions of the Criminal
Code and anti-terrorism legislation. Legislation concerning the
Internet also needs to be clarified, in order to verify its compatibility
with the case law of the European Court of Human Rights;
11.5. the Assembly welcomes the adoption on 11 April 2013 of
the “4th package of judicial reforms”. The amendments of, in particular,
the Criminal Code and the anti-terrorism legislation should help
to bring Turkish legislation into line with the case law of the
European Court of Human Rights, as requested. They should also help
to clarify the distinction between freedom of expression and terrorist propaganda,
as expected. The Assembly renews its request for Article 301 of
the Criminal Code to be repealed, as well as Article 125 of the
Criminal Code which criminalises defamation. The Assembly also calls
for a review of the 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;
11.6. the Assembly notes that the adoption of the “4th package
of judicial reforms” should make possible the abolition of the statute
of limitation for torture cases and the reopening of the trials
in the cases in which the European Court of Human Rights has found
a lack of effective investigations, in violation of the European
Convention on Human Rights;
11.7. the Assembly also invites Turkey to continue the reforms
undertaken in order to protect all fundamental and individual freedoms
so that protecting the individual is made the focus of its human rights
system;
11.8. the Assembly notes that the educational reform (the “4
+ 4 + 4 system”) increases the duration of compulsory schooling,
which is a positive move. There is, however, some concern about
the introduction of religious education from lower secondary level,
as sections of “Imam Hatip schools” have been re-established there.
This measure seems to be a departure from the principle of secularism
based on respect for all religions, a principle endorsed by the
prime minister. The Assembly will follow the implementation of the
new system;
11.9. with regard to respect for the rights of lesbian, gay,
bisexual and transsexual (LGBT) persons, the Assembly asks Turkey
to take every step, educational measures included, to combat all
forms of discrimination and adopt appropriate legal and constitutional
provisions. The Assembly hopes that these reforms concerning sexual
orientation and gender identity will be fully implemented, in accordance
with Committee of Ministers Recommendation CM/Rec(2010)5 on measures
to combat discrimination on grounds of sexual orientation or gender
identity;
11.10. the Assembly cannot but note that several human rights
and fundamental freedoms issues remain problematic:
11.10.1. the
Assembly deplores the fact that there has still been no legal outcome
to the pre-trial detention of large numbers of members of parliament,
mayors and local elected representatives. This situation clearly
hampers the exercise of the mandates given to these elected representatives
by citizens and requires an urgent legislative solution;
11.10.2. the Assembly calls on Turkey to respect fully the rights
of the defence in the major trials (Ergenekon, Balyoz, KCK) which
are being conducted by courts with special powers. These trials are
simultaneously affecting elected representatives, members of the
armed forces, university teachers, students, journalists and Kurds.
The Assembly is concerned by the high number of these trials;
11.10.3. in addition, the Assembly notes that arrests and pre-trial
detention, notably of journalists, young people and students, raise
serious concerns. It urges Turkey to adopt, without further delay,
the necessary legislation to guarantee freedom of expression and
the right to demonstrate, and to ensure that police action, if it
is necessary, remains proportionate;
11.11. with regard to the dissolution of political parties, the
Assembly invites Turkey, in line with the Venice Commission’s 2009
recommendations, to renew efforts, in the context of the work on constitutional
reform, to introduce a properly elaborated procedure based on strict
criteria, such as condoning or inciting violence or overt threats
to fundamental democratic values;
11.12. in terms of trade union rights, the Assembly takes note
of the law adopted on 19 October 2012. It notes the low number of
unionised employees (less than 10%), namely 1 million out of 10 million.
It draws attention to the high threshold of over 3% unionised employees
in firms with over 30 employees for trade unions to be entitled
to enter into collective bargaining. At present, this would mean
that barely half of trade unions would be able to do so. The measure
appears to be gradual, however, and is not due to be applied in
full until 2018. The Assembly therefore asks Turkey to make sure
that the new trade union legislation genuinely guarantees the exercise
of the right to bargain collectively. It encourages Turkey to continue
its discussions with the socio-economic partners and trade unions
in order to lift the reservations entered into in respect of Articles 2.3,
4.1, 5 and 6 of the revised European Social Charter;
11.13. the Assembly underlines the obvious need to train judges
and prosecutors. It encourages the authorities to continue and step
up the programmes of compulsory in-service training for law-enforcement
officers. This is vital for ensuring that the new legislative measures
are implemented effectively and account is taken of the case law
of the European Court of Human Rights. The training of justice and
law-enforcement personnel must be accompanied by an absolutely necessary
change in attitudes. The Assembly strongly urges Turkey to continue
the co-operation established with the Council of Europe in these
areas.
12. With regard to establishing the institution of ombudsman and
recognising the right of conscientious objection and establishing
an alternative civilian service:
12.1. the
Assembly notes with satisfaction the establishment of an ombudsman,
following the constitutional referendum of 12 September 2010 and
the adoption of the law of 14 June 2012, thereby honouring a specific
request by the Assembly set out in the 12 action requirements. It
nevertheless invites the Turkish Parliament to review the criteria
for the selection and election of the ombudsman and deputy ombudsmen
so as to ensure the credibility and effectiveness of this newly
established institution and its funding;
12.2. the Assembly also welcomes the determined efforts by the
Ministry of Justice to ensure that more account is taken of the
case law of the European Court of Human Rights, improve supervision
of the implementation of the Court’s judgments and prevent repetitive
violations of articles of the Convention. In particular, it welcomes
the establishment of a compensation system in cases of excessive
length of detention or proceedings, as well as the account taken
of compliance with the Court’s case law in the promotion of judges;
12.3. the Assembly welcomes the possibility opened up by the
2010 constitutional revision for individual appeals to the Constitutional
Court regarding breaches of the rights enshrined in the European Convention
on Human Rights and implemented since September 2012;
12.4. given that it was one of the 12 action requirements, the
Assembly is disappointed that no steps have been taken to establish
a legislative framework for conscientious objection and an alternative civilian
service in order to comply with the recent case law of the European
Court of Human Rights on the matter.
13. With regard to implementation of the reform of local and regional
government and decentralisation and the return of displaced persons:
13.1. the Assembly is convinced that
continuing and increasing decentralisation will be a key factor
in Turkey’s development strategy, and also a possible response for
resolving the Kurdish question. In this context, it urges Turkey
to implement Recommendation 301 (2011) adopted by the Congress of
Local and Regional Authorities of the Council of Europe on 24 March
2011 and to continue the reforms in the area of decentralisation,
in accordance with the European Charter of Local Self-Government (ETS No. 122),
ratified by Turkey in 1992;
13.2. the Assembly notes with satisfaction the entry into force
in March 2008 of Law No. 5233 on Compensation for Damage arising
from Terrorism and combating Terrorism. It encourages Turkey to continue
its economic and social programmes for the lasting return of displaced
persons, as provided for in the 12 action requirements.
14. With regard to the Council of Europe legal instruments mentioned
in Resolution 1380 (2004):
14.1. the
Assembly welcomes Turkey’s ratification of the Convention on Laundering,
Search, Seizure and Confiscation of the Proceeds from Crime on 6 October
2004 and of the revised European Social Charter on 27 June 2007,
in accordance with Resolution 1380
(2004);
14.2. the Assembly notes that Turkey has neither signed nor
ratified the Framework Convention for the Protection of National
Minorities or the European Charter for Regional or Minority Languages,
as requested by the Assembly in 2004. It urges Turkey to now consider
signing these legal instruments;
14.3. the Assembly welcomes the adoption of the March 2010 circulars
intended to improve access to asylum procedures, ensure better protection
of vulnerable groups and provide better access for asylum seekers
to the labour market. Furthermore, the Assembly welcomes the adoption,
on 4 April 2013, of the Foreigners and International Protection
Act, which constitutes a significant step forward in the protection of
the rights of foreigners, irrespective of their status. It urges
Turkey to continue its co-operation with the Office of the United
Nations High Commissioner for Refugees (UNHCR) and reiterates its
call to lift the geographical limitation to the 1951 Geneva Convention
relating to the Status of Refugees. It also urges the international
community to support Turkey’s efforts to improve the reception and
integration of refugees;
14.4. the Assembly is pleased to note the ratification, on 23 March
2012, of the Council of Europe Convention on the Prevention of Terrorism
(CETS No. 196). It also takes the opportunity to reiterate its total
condemnation of all acts of violence and terrorism. With regard
to the terrorist acts related to the PKK, the Assembly reiterates
that a political solution must be found to the Kurdish question
and calls for the cessation of all violence – a precondition for
any negotiations.
15. With regard to pursuing the policy of recognising the existence
of national minorities living in Turkey and granting persons belonging
to these minorities the right to maintain, develop and express their
identity and to apply it in practice:
15.1. the Assembly points out that Turkey refers to the definition
of minorities established by the Treaty of Lausanne of 24 July 1923,
which considers minorities to be “Turkish nationals belonging to
non-Muslim minorities”. In addition, the Assembly notes that only
the Jewish, Armenian and Greek Orthodox religious communities are
in fact recognised as minorities by Turkey;
15.2. the Assembly welcomes the stepping up of dialogue with
the religious communities and the recent measures to eliminate the
problems encountered by non-Muslim minorities. The Assembly also notes
the contribution made by the minorities to the work on the revision
of the constitution, which should ensure equality, in law and in
practice, of all Turkish citizens, whatever their religion;
15.3. the Assembly welcomes the amendment of the Foundations
Act on 27 August 2011 aimed at facilitating the registration of
real estate. It invites the Turkish authorities to finalise the
process of return of property to religious communities;
15.4. with reference to the Venice Commission’s opinion of
March 2010 on the legal status of religious communities in Turkey
and the right of the Orthodox Patriarchy of Istanbul to use the
adjective “Ecumenical”, the Assembly is pleased to note the discussions
under way on the reopening of the Halki Orthodox seminary on Heybeliada
Island;
15.5. while acknowledging that the recent reforms to Turkish
legislation have improved relations with the non-Muslim religious
communities, the Assembly nevertheless urges Turkey to implement
the requirements of paragraph 19.2 of Assembly Resolution 1704 (2010) on freedom
of religion and other human rights for non-Muslim minorities in
Turkey and for the Muslim minority in Thrace (eastern Greece) and
the recommendations of the Venice Commission included in its Opinion
No. 535/2009 adopted in March 2010, in order to guarantee the fundamental
right of freedom of religion, particularly through recognising the
legal personality of non-Muslim religious communities, which would
secure access to justice and protection of property rights;
15.6. in this context, the Assembly urges the launching of a
conclusive dialogue with the Alevi community, in particular regarding
the recognition of the legal status of the Alevi places of worship
(Cem evleri), teaching about the Alevi religion in schools and investigations
into confiscated property claims;
15.7. the Assembly also welcomes the substantial progress made
since 2004 in terms of promoting the cultural and linguistic rights
of the Kurds, including the use of languages other than Turkish
in education, the media and election campaigns since 2011, and the
option available since 2012 to choose the language used for defence
purposes in court. While underlining its unequivocal condemnation
of terrorism, the Assembly nevertheless notes that the imprisonment
of thousands of Kurds – including local elected representatives
and journalists – for alleged terrorism offences is weighing heavily
on the settlement of the Kurdish question. The Assembly hopes that
the ongoing judicial and constitutional reforms will produce a political
solution here;
15.8. the Assembly welcomes the Turkish authorities’ official
resumption, in December 2012, of exploratory talks with the PKK
leader. It also welcomes the peace process, which it believes is
obviously the way forward in ending violence and creating a peaceful
environment for the solution of the Kurdish issue. The Assembly
is aware that the process is fragile and should be accompanied by
the withdrawal of the PKK militants from Turkey. A “Committee of
Wise People”, made up of 63 members, has been put in place. The
Assembly would like it to be representative of all actors of society
and of the different political forces to bring the initiative to
a successful conclusion;
15.9. while acknowledging the importance of minority schools
for the preservation of the identity of the national minorities,
the Assembly nevertheless regrets that the 2007 Private Teaching
Establishments Act does not reflect the requirements set forth in
paragraph 19.14 of Assembly Resolution
1704 (2010). Therefore, the Assembly urges Turkey to
adapt the legislation so as to allow children from non-Muslim minorities,
but without Turkish nationality, to be admitted to minority schools.
In this regard, the Assembly, while taking into account the reciprocity
practice applied in certain cases, notes that ad hocsolutions are not a sufficient
remedy for the problem;
15.10. the Assembly notes that Turkey has not sent a reply to Resolution 1704 (2010).
It invites Turkey to send a reply to the outstanding questions within
two months.
16. With regard to continuing efforts to combat female illiteracy
and all forms of violence against women:
16.1. the Assembly welcomes the advances in legislation made
since 2005 and the reform of the Criminal Code with regard to combating
violence against women, namely in terms of legislative provisions
and awareness-raising measures. It praises Turkey’s action in the
preparation of the Council of Europe Convention on Preventing and
Combating Violence against Women and Domestic Violence (Istanbul
Convention, CETS No. 210). The Assembly notes that Turkey was the
first country to ratify it in March 2012 without any reservation
and to adopt a corresponding law. It has to be said, however, that violence
against women remains a real problem;
16.2. the Assembly therefore underlines the need to make sure
that the legislation is properly implemented, in particular through
training for health-care professionals, police officers, prosecutors
and judges, and to punish any breaches or lack of diligence on the
part of institutions;
16.3. the Assembly encourages Turkey to continue its efforts
to combat female illiteracy, which is a major obstacle to women’s
participation in public and economic life and means a greater risk
of girls being exposed to physical, psychological and sexual violence.
In this context, the Assembly urges Turkey to combat early and child
marriages, in accordance with Assembly Resolution 1468 (2005) on forced
marriages and child marriages. It also calls for vigilance concerning
the preservation of women’s right to abortion;
16.4. the Assembly hopes that Turkey will reassert its commitment
to strengthening de facto gender equality.
It welcomes the inclusion of positive discrimination in favour of
women in the 2010 constitutional amendments. The Assembly hopes
that Turkey will enshrine full gender equality in its future constitution and
continue to be a benchmark in the region.
17. In conclusion, the Assembly underlines that Turkey is currently
going through a period of political change and that the geopolitical
context is particularly sensitive. The Assembly notes, however,
that the process of legislative reform and institutional change
is ongoing but incomplete as regards some key requirements of Resolution 1380 (2004).
This process could lead to the drafting of a new constitution and
the definition of a new political system, which the Assembly will
assess in due course. It also assures Turkey of its full support
in intensifying these democratic reforms.
18. Having regard to the local elections in 2014, the first election
of the president of the republic by direct suffrage in 2014 and
the parliamentary elections in 2015, the Assembly resolves to follow
developments in Turkey and present a comprehensive report on the
post-monitoring dialogue with Turkey after those events. It reiterates
the willingness of the Council of Europe, in particular the Venice
Commission, to support the Turkish authorities’ efforts.