Print
See related documents
Addendum to the report | Doc. 14282 Add. | 24 April 2017
The functioning of democratic institutions in Turkey
Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee)
1. Introduction
1. At its meeting on 8 March 2017,
the Monitoring Committee approved a report and adopted a draft resolution
on the functioning of democratic institutions in Turkey with a view to its presentation
at the April 2017 part-session. At that meeting, we announced that
we would prepare an addendum to our report, in order to take account
of the latest developments in the country, the opinions of the European
Commission for Democracy through Law (Venice Commission) adopted
on 10 and 11 March 2017, the
resolution and recommendation of the Congress of Local and Regional
Authorities of the Council of Europe adopted on 29 March 2017 and
the first findings of the ad hoc committee of the Parliamentary
Assembly, chaired by Mr Cezar Florin Preda (Romania, EPP/CD), which
observed the referendum of 16 April 2017 on the constitutional amendments.
2. Since the publication of our report, a package of 18 constitutional
amendments was adopted by a majority of voters (51.4%) in favour
of an executive presidency (with a turnout of 85,32%), after a speedy parliamentary
procedure. While the purges continue, the
state of emergency was extended for the third time, and for another
three months, on 18 April 2017. Following the arrest of HDP MP Çelik
Özkan on 19 April 2017 and the release of HDP MPs Nursel Aydoğan
and Meral Danış Beştaş on 21 April, there are still 12 members of
parliament in detention.
2. Constitutional referendum of 16 April 2017: preliminary findings of the Assembly’s ad hoc observation committee
3. As co-rapporteurs, we participated
in the observation of the 16 April 2017 referendum in Turkey with
a 20-member ad hoc committee. While the technical aspects during
election day were generally well administrated, the findings of
the joint observation mission of the Parliamentary Assembly and
the Office for Democratic Institutions and Human Rights (ODHIR) confirmed
the concerns expressed by the Monitoring Committee since January
2017 about the context in which this referendum took place (under
a state of emergency, with members of parliament and journalists
in detention, fundamental freedoms restricted and populations displaced
in south-east Turkey). We also identified a number of shortcomings
during the referendum campaign, such as unbalanced media coverage,
misuse of administrative resources, restricted fundamental freedoms,
an inadequate legal framework to hold a genuinely democratic process,
etc.
4. In addition, the Supreme Board of Elections (SBE) issued instructions
late on voting day that “significantly changed the ballot validity
criteria”, thus removing “an important safeguard” and contradicting
the electoral law as amended in 2010, as noted by the Parliamentary
Assembly/ODIHR observation mission. The appeals made by the opposition
parties CHP and HDP, as well as by hundreds of individual citizens,
to the SBE requesting the annulment of the referendum in view of
the alleged irregularities were rejected by the SBE on 19 April
2017. Pro memoria, decisions
of the SBE are final and cannot be appealed – an issue which has been
repeatedly criticised by previous Assembly election observation
missions.
5. Our ad hoc committee concluded that “the referendum did not
live up to Council of Europe standards”. The report of the ad hoc
committee will be presented to the Standing Committee in May 2017.
In the light of the uneven campaign and the decision of the SBE
during voting day, serious questions can be raised about the legitimacy
of the outcome of the referendum.
6. In view of the “close result of the referendum”, the Secretary
General of the Council of Europe Mr Thorbjørn Jagland invited the
Turkish leadership to “consider the next steps carefully”, adding
that “it is of utmost importance to secure the independence of the
judiciary in line with the principle of rule of law enshrined in
the European Convention on Human Rights”.
7. For our part, we take note of the outcome of the referendum.
At the same time, we reiterate our position that the newly adopted
constitutional changes raise a number of issues, which have been
substantiated by the constitutional experts of the Venice Commission,
as detailed in section 3 of this addendum with respect to the constitutional
amendments and media freedom under the state of emergency.
8. Three constitutional provisions will be implemented immediately:
the right of the President of the Republic to be a member of a political
party; the restructuring of the High Council of Judges and Prosecutors (all
13 members being now appointed by the parliament and the President)
and its replacement by a “Council of Judges and Prosecutors”, as
well as the abolishment of military courts – which was welcomed
by the Venice Commission (see below).
9. We remain committed to working with the Turkish authorities,
including its parliament, and with our Council of Europe partners,
in particular the Venice Commission, through the preparation of
constitutional amendments if need be, to ensure that the constitutional
framework and its implementation comply with Council of Europe standards.
In the light of the electoral deficiencies identified during the
observation of recent elections, due attention should also be paid
to the election framework. The monitoring procedure should provide
us with the necessary framework to follow up the expected co-operation
on constitutional and electoral matters.
3. Constitutional amendments for a presidential system submitted to referendum on 16 April 2017
3.1. Opinion by the Venice Commission on the constitutional amendments
10. The opinion by the Venice Commission on the amendments to the Constitution
relates to the establishment of what the Turkish authorities have
described as a “Turkish-style presidential system”. This opinion
confirms the concerns we expressed at the end of our visit to Turkey
(9-13 January 2017), and which were later shared by the Monitoring
Committee in its declaration of 26 January 2017 and the report adopted on
8 March 2017. These findings concern:
0.1. The procedure of adoption of
the constitutional amendments: the Venice Commission
stresses that “the breach of the secrecy of vote cast a doubt on
the genuine nature of the support for the reform and on the personal
nature of the deputies’ vote. Regrettably, the parliamentary procedure
did not provide a genuine opportunity of open discussions with all
the political forces present in parliament” (paragraph 131).
0.2. The advisability of holding
a referendum under a state of emergency: the Venice Commission considers
that “whether permanent constitutional change should occur during
a state of emergency is dependent on whether the circumstances are
such that democratic principles will prevail” (paragraph 36). Recalling
that “constitutional reform is a process which requires free and
open public debate, and sufficient time for public opinion to consider
the issues and influence the outcome”, it considers
that it is “highly doubtful that the constitutional referendum scheduled
for 16 April 2017 could and would meet the democratic principles
of the European democratic tradition. In addition, even if these standards
were respected, the credibility of the results of a referendum held
during a state of emergency that has been declared to consolidate
government power would be compromised” (paragraph 41).
0.3. The Venice Commission underlined that this whole process
was taking place during the state of emergency, “when very substantive
limitations on freedom of expression and freedom of assembly are in
force. In particular the extremely unfavourable environment for
journalism and the increasingly impoverished and one-sided public
debate that prevail in Turkey at this point question the very possibility of
holding a meaningful, inclusive democratic referendum campaign about
the desirability of the amendments” (paragraph 132). In another
opinion, the Venice Commission recalled the essential role of a
free media environment to openly discuss political matters when
a major constitutional reform is launched.
0.4. The compliance of the constitutional
amendments, in substance, with European standards with respect
to:
0.4.1. The
separation of powers and checks and balances: The Venice
Commission noted that “a presidential regime requires very strong
checks and balances, and especially a strong, independent judiciary”
as controversies between the executive and the legislative branches “often
end up in courts” in presidential systems (paragraph 44). Under
the new Constitution, the President of the Republic would be at
the same time the head of State and the head of the government.
The Venice Commission showed that the proposed amendments made to
the Constitution would not guarantee, in practice, the separation
of powers in view of:
0.4.1.1. the “invasive
influence” of the President of the Republic – who would have ties
with his/her political party – over the parliament in a system when
presidential and parliamentary elections are held at the same time,
with the phenomenon of attraction of presidential elections over
parliamentary elections. “The President will have the power to appoint
and dismiss ministers, choosing some of them from among members
of the legislature. This will give him or her effective source of
patronage over the legislature” (paragraph 62). “This creates a
danger of the President taking control of the legislative agenda”
(paragraph 52). The President would also be able to issue presidential
decrees (except, if the country is not under a state of emergency,
on certain issues related to human rights); even though the law
should in theory prevail over presidential decrees when there are
conflicting areas;
0.4.1.2. the President’s power to nominate and dismiss high-level
State officials according to procedures defined by himself/herself
as well as ministers and vice-ministers (with the parliament exercising
no control over these nominations) (paragraph 68). Despite not being
elected, vice-presidents and ministers would enjoy parliamentary
immunity (paragraph 63) and, in case the President would not be
in a position to exercise his/her mandate, a Vice-president would
be able to rule the country without democratic legitimacy, and for
unlimited time (except for the length of the mandate itself) (paragraph 66).
0.4.2. The weakening of the independence
of the judiciary: the Venice Commission pointed out that
the composition of the “Council of Judges and Prosecutors” – which
would replace the “High Council of Judges and Prosecutors” – would
be problematic, as all 13 members would be appointed by either the
President (4+2 ex officio members,
i.e. the Minister of Justice and the Undersecretary of Justice,
appointed by the President) or the parliament (7), which contradicts both
the positions of the Venice Commission and Committee of Ministers
Recommendation CM/Rec(2010)12 on judges: independence, efficiency
and responsibilities. In
addition, because the President would be engaged in party politics,
his/her choice of the members of the Council of Judges and Prosecutors
“will not have to be politically neutral” (paragraph 119). In addition,
the appointment procedure of the members of the Supreme Court of
Cassation and the Council of State by the Council of Judges and
Prosecutors also influences the composition of the Constitutional
Court.
11. The Venice Commission also explained at length the system
of “bilateral” renewal of the elections: the President can dissolve
the parliament on any grounds whatsoever – and the parliament can
also dissolve itself on any ground (and with a three-fifths majority).
In either of these two cases, the presidential and parliamentary elections
would be held simultaneously. The President is limited to two mandates,
unless the parliament dissolves itself during the second mandate
of the President, which would then pave the way for his/her third mandate.
The Venice Commission also considered that holding elections simultaneously
“means in practice that usually the President controls the parliamentary
majority … It makes it unlikely that there will be meaningful separation
of powers … It rather follows a concept of unity of power which
is characteristic for not so democratic a system”.
12. The Venice Commission concluded that the constitutional amendments
would lead to “an excessive concentration of executive power in
the hands of the President and the weakening of parliamentary control
of that power. … The democratic accountability of the President
is virtually absent during the mandate; it only comes into play
if the President runs for a second mandate. … The [Turkish Grand
National Assembly] may not hold a vote of confidence in the President.
There is no possibility of interpellations. Only written questions are
allowed and must be addressed to Vice-presidents and ministers (amended
Article 98(5)). In addition, the President will benefit from a general
immunity for any criminal act besides those committed in the exercise
of the presidential functions, for which he or she may be subject
to a very complex procedure of impeachment with the final judgment
being made by the Constitutional Court, whose members are appointed
directly or indirectly by the President” (paragraph 47). In addition,
the constitutional amendments will reinforce the veto power of the
President, who can decline to promulgate a law and send it back
to the parliament, which could override this veto provided that
the absolute majority of the members of parliament vote in favour.
13. While welcoming the abolition of the military courts and the
provision that the presidential emergency decrees automatically
lose their validity if they are not approved by the Grand National
Assembly within three months, the Venice Commission assessed that
the proposed constitutional amendments would introduce in Turkey
a presidential regime “which lacks the necessary checks and balances
required to safeguard against becoming an authoritarian one” (paragraph
130). It concluded that “the substance of the proposed constitutional
amendments represents a dangerous step backwards in the constitutional
democratic tradition of Turkey”, stressing “the dangers of degeneration
of the proposed system towards an authoritarian and personal regime.
In addition, the timing is most unfortunate and is itself cause
of concern: the current state of emergency does not provide for
the due democratic setting for a constitutional referendum”.
3.2. Opinion of the Venice Commission on measures provided in the recent emergency decree laws with respect to freedom of the media
14. At the request of the Committee
on Political Affairs and Democracy, the Venice Commission also analysed
the measures provided in the recent emergency decree laws with respect
to freedom of the media, in particular the liquidation of medias,
the confiscation of property, the use of criminal justice against
journalists in the light of European standards and the case law
of the European Court of Human Rights.
15. The Venice Commission concludes that the media cannot exercise
its public watchdog role in a context marked by “severe interference
with freedom of expression and the media caused by the emergency
decree laws” , while “the ability
to openly discuss political matters in the media becomes even more
crucial when the state of emergency had been prolonged”.
16. The Venice Commission also emphasises, in line with previous
findings of Council of Europe monitoring mechanisms, that pretrial
detention of journalists under the [vague] heading of “membership”
of terrorist organisations (and alike) are problematic, it should
be necessary to produce “relevant and sufficient” reasons for the
detention of journalists in case they are prosecuted because of
their writings, while detention “should remain an exception”.Ibid., paragraph 93.
17. We fully share the concerns expressed by the Venice Commission,
and we would like to suggest one amendment to emphasise our expectations
towards the “Inquiry Commission on State of Emergency Measures”
with respect to freedom of the media, which is a cornerstone of
democracy and should urgently be restored in Turkey (see proposed
amendment 3).
4. Regarding the reintroduction of the death penalty
18. We noted, with great dismay,
that the issue of the reintroduction of the death penalty was once
again raised during the campaign by Mr Erdoğan, who reiterated his
readiness to promulgate any such law passed by the parliament. As
already noted in our report and stressed by the Assembly in its
Resolution 2149 (2017), the introduction of the death
penalty is not compatible with membership of the Council of Europe.
19. The day after the referendum, President Erdoğan again signalled
that he would approve a parliamentary bill reintroducing the death
penalty, or organise a referendum on this subject if opposition
MPs would not support such a bill.
20. We recall that Turkey abolished the death penalty in 2004
as part of its reform process. It ratified Protocol No. 6 (ETS
No.114 concerning the abolition of the death penalty) in 2003
and Protocol No. 13 to the European Convention on Human Rights (ETS
No.187 concerning the abolition of the death penalty in all
circumstances) in 2006. The reintroduction of the death penalty
would require Turkey to denounce these two protocols, and thus also
the European Convention on Human Rights (ETS No. 5) as such. As
noted by Yves Cruchten (Luxembourg, SOC), Parliamentary Assembly
General Rapporteur on the abolition of the death penalty, the reintroduction
the death penalty “would be simply incompatible with Turkey’s continued
membership of the Council of Europe” and that the Assembly would
“not accept any backsliding on turning Europe into a death penalty-free
continent”.
21. We deem it necessary to stress, once again, the position of
the Assembly on this matter, and propose to reaffirm our commitment
to this Council of Europe acquis by
means of an amendment and to highlight the parliament’s specific
responsibility to refrain from any move that could jeopardise Turkey’s
membership of the Council of Europe (see proposed amendment 1).
The Assembly remains at the full disposal of the Turkish National
Grand Assembly to exchange with parliamentarians and the Turkish
authorities on this issue.
5. Functioning of democratic institutions at local level: position of the Congress of Local and Regional authorities of the Council of Europe
22. Both in the Assembly’s June
2016 Resolution 2121
(2016) and in our report of 8 March 2017, we pointed to
the serious problems faced in southeast Turkey in the wake of the
security operations which have been conducted there since August
2015.
23. In his report of 10 March 2017, the United Nations
High Commissioner for Human Rights, Zeid Ra'ad Al Hussein, highlighted
human rights violations and documented “numerous cases of excessive
use of force; killings; enforced disappearances; torture; destruction
of housing and cultural heritage; incitement to hatred; prevention
of access to emergency medical care, food, water and livelihoods;
violence against women; and severe curtailment of the right to freedom
of opinion and expression as well as political participation”.
24. This report also depicted the impact of the state of emergency
measures that “appear to have largely targeted dissent in general
and political parties of the opposition in particular, disproportionately
affecting citizens of Kurdish origin. Of particular concern is the
massive scale of dismissals of public officials, especially of school
teachers; the mass arrests of members of parliament belonging to
the People’s Democratic Party (HDP) and of municipal mayors in majority
Kurdish areas; and the closure of almost all Kurdish language local and
national media outlets and the arrests of their journalists”.
25. On 29 March 2017, the Congress of Local and Regional Authorities
debated the report “Fact-finding mission on the situation of local
elected representatives in Turkey” submitted by Anders Knape, Sweden
(L, EPP/CCE) and Leendert Verbeek, Netherlands (R, SOC). The Congress
deplored that one member of the Turkish delegation, Nurhayat Altun,
Co-Mayor (HDP) of Tunceli, has been detained in the Kocaeli F-type
prison since 17 November 2016, while another member, Serra Bucak
(DBP) was also prevented from attending the 2017 spring session
of the Congress in Strasbourg.
26. The Congress adopted Resolution
416 (2017), as well as Recommendation
397 (2017) which notably asked the Committee of Ministers to invite
the Turkish authorities to:
- “rescind the legislative measures on ‘mayors appointed by the central authorities’ and restore the capacity of municipal councils to choose a replacement mayor, if the mayor is removed from office;
- ensure that the arrest of a local elected representative is a decision duly substantiated in domestic law, taken in conformity with the standards of the Council of Europe;
- examine, with a view to their release, the situation of local elected representatives currently in pretrial detention in order to ensure that it is in conformity with the European Convention on Human Rights and, where appropriate, proceed with their immediate release;
- revise the ministerial instructions of 11 November 2016 with a view to decriminalising the appointment of co-mayors;
- revise the Turkish legislation to align its definition of terrorism with European standards, notably the case law of the European Court of Human Rights”.
27. The Congress also requested an opinion of the Venice Commission
on the constitutionality of the measures in Decree Law No. 674 which
concern the exercise of local democracy in Turkey.
28. Together with the Congress, we encourage the monitoring mechanisms
of the Council of Europe, in particular the Council of Europe Commissioner
for Human Rights, the European Committee for the Prevention of Torture
and Inhuman or Degrading Treatment or Punishment (CPT) as well as
the Group of Experts on Action against Violence against Women and
Domestic Violence (GREVIO), to continue to pay close attention to
democratic developments at local level. We would like to echo the
recommendations made by the Congress, which are fully relevant in
respect to the functioning of democratic institutions in Turkey,
in our upcoming resolution (see proposed amendment 2).
6. Conclusions
29. On the basis of the information
provided in this addendum, the Monitoring Committee could decide
to table the following amendments to the draft resolution on the
functioning of democratic institutions in Turkey:
0.1. Amendment
A: After paragraph 7, insert the following paragraph:
“In this context, the Assembly recalls that the reintroduction of
the death penalty would be incompatible with membership of the Council of
Europe and urges the Turkish Grand National Assembly to refrain
from any move that could lead to the reintroduction of capital punishment
and thus jeopardise Turkey’s membership of the Council of Europe”;
0.2. Amendment B: At
the end of paragraph 11, add the following: “The Assembly deplores
that these detentions have suspended the practical exercise of local
democracy in that region, led to a disproportionate supervision
of local administrations through the appointment of trustees and
reduced local public services, in contravention of the European
Charter of Local Self-Government (ETS No. 122). The Assembly urges
the Turkish authorities to release, where appropriate, the mayors
currently in pretrial detention and fully restore local democracy
in south-east Turkey, in line with Resolution 416 (2017) and Recommendation
397 (2017) of the Congress of Local and Regional Authorities.”
0.3. Amendment C: After
paragraph 26.4, insert the following paragraph: “ensure that the
Inquiry Commission on State of Emergency Measures will be fully
operational without further delay and with the power to restore
the status quo ante and/or,
where appropriate, provide adequate compensation, grant priority
treatment to the most urgent applications, including those introduced
by the media outlets, and issue reasoned individualised decisions
in line with the recent opinions of the Venice Commission;”;
0.4. Amendment D: replace
paragraph 28 with the following paragraph: “The Assembly takes note of
the adoption of a package of 18 constitutional amendments by the
parliament on 21 January 2017 and by 51.4% of the voters during
the constitutional referendum on 16 April 2017, which will result
in a profound change and a shift from a parliamentary to a presidential
system, granting the President of the Republic extensive powers
while drastically reducing the supervisory role of the parliament.
The Assembly emphasises that it is the sole right of the Turkish
citizens to decide on the democratic political system they wish
to have, provided that sufficient information is given to the voters
and that enough time is left for public debate.
0.5. Amendment E: after
paragraph 30, insert the following paragraph: “In the light of the
preliminary findings of the international referendum observation
mission of the Parliamentary Assembly/Office for Democratic Institutions
and Human Rights (ODIHR), the Assembly deeply regrets that the referendum was
contested on an uneven playing field, thus preventing the two sides
in the campaign from having equal opportunities. Furthermore, the
decision of the Supreme Board of Elections in the course of the voting
day – allowing the validation of unsealed ballot papers in contradiction
with the 2010 election law – has raised serious questions about
the legitimacy of the outcome of the referendum. The Assembly also
expects the Supreme Board of Elections to thoroughly investigate
all alleged election irregularities.”
0.6. Amendment F: after
paragraph 31, insert the following paragraph: “In the light of the
March 2017 recommendations of the Venice Commission on the constitutional
amendments, the Assembly resolves to follow the institutional developments
and to work with the Turkish authorities, possibly through the preparation
of constitutional amendments, to ensure that the constitutional
framework and its implementation comply with Council of Europe standards.”
0.7. Amendment G: delete
paragraph 34.8 [about the organisation of the constitutional referendum].