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Resolution 2260 (2019)
The worsening situation of opposition politicians in Turkey: what can be done to protect their fundamental rights in a Council of Europe member State?
1. The Parliamentary Assembly reiterates
that political opposition in and outside parliament is an essential component
of a well-functioning democracy, and that the freedom of expression
of members of parliament is an essential part of democracy. It also
recalls that parliamentary immunity – in accordance with Assembly Resolution 1601 (2008) on
procedural guidelines on the rights and responsibilities of the
opposition in a democratic parliament, and the standards of the
European Commission for Democracy through Law (the Venice Commission)
– is a fundamental protection for the parliamentary institution
and an equally fundamental guarantee of the independence of elected
representatives, which is necessary for them to exercise their democratic
functions without fear of interference from the executive or judiciary.
2. The Assembly recalls the widespread concerns expressed over
recent developments in the democratic situation in Turkey and the
deterioration in the state of the rule of law, democracy and human
rights as reflected in Assembly Resolution 2121 (2016) and Resolution 2156 (2017) on
the functioning of democratic institutions in Turkey, which resulted
in the reopening of the monitoring procedure.
3. The Assembly has notably expressed its concern over 154 parliamentarians
being stripped of their immunity in May 2016, which has affected
disproportionately the Peoples’ Democratic Party (HDP); the impact on
the freedoms of expression, assembly and association, the media
and local democracy of decree-laws passed under the state of emergency
between July 2016 and July 2018; the constitutional reforms of 2017;
the hasty organisation of early presidential and parliamentary elections
in June 2018 and the reform of the electoral law that immediately
preceded them; as well as perennial challenges to freedom of expression,
including the anti-terror law and its broad interpretation, and
Articles 299 and 301 of the Penal Code.
4. The Assembly recalls that the very essence of parliamentary
work is to address all issues of public importance, including those
which are sensitive or controversial but need to be addressed. In
this context, the Assembly expresses its concern about the detention
and imprisonment of parliamentarians and former parliamentarians
from the opposition in Turkey, including former deputy and former
HDP co-chair Selahattin Demirtaş, deputy Leyla Güven, who is also
a former member of the Council of Europe Congress of Local and Regional
Authorities, and former deputy and Assembly member Ertuğrul Kürkçü.
In particular, the Assembly is very concerned that detained member
of parliament (MP) Leyla Güven has been on an indefinite hunger
strike since 8 November 2018 and it deeply regrets that politicians
are forced to resort to such ultimate means to draw attention to
their plight in the absence of genuine political debate and dialogue.
5. The Assembly’s concern about Mr Demirtaş’s detention has been
confirmed by the Chamber of the European Court of Human Rights which,
in its November 2018 ruling (not final), found that it had been established
beyond reasonable doubt that the extension of Mr Demirtaş’s detention,
especially during two crucial campaigns, namely the referendum and
the presidential election, had pursued the “predominant ulterior purpose
of stifling pluralism and limiting freedom of political debate,
which is at the very core of the concept of a democratic society”.
6. The Assembly thus considers that these developments, taken
together, have increasingly diminished, obstructed or undermined
the ability of opposition politicians to exercise their rights and
fulfil their democratic roles both inside and outside parliament.
The action undertaken by the authorities to render opposition parties inoperative,
especially during election campaigns, has further undermined these
parties’ capacity to take part in the democratic debate.
7. In addition, the Assembly reiterates its concerns about the
restriction of the rights of opposition politicians at local level,
in particular those connected to the Kurdish question, notably the
replacement of over 90 elected mayors from the HDP or its sister
party by government-appointed trustees, in contravention of the
European Charter of Local Self-Government (ETS No. 122). This has
seriously undermined the functioning of local democracy, especially
in south-east Turkey. The Assembly calls on the Turkish authorities
to co-operate with the Congress to resolve these issues and implement
Congress Resolution 416 (2017) and Recommendation 397 (2017) on
the fact-finding mission on the situation of local elected representatives
in Turkey.
8. It should be noted that the worsening of the situation of
opposition politicians is taking place in a context marked by continuous
restrictive measures introduced by the authorities with a view to
silencing dissenting voices, notably journalists, judges, prosecutors,
lawyers and academics.
9. The Assembly is nevertheless confident that certain fundamental
prerequisites for democracy remain strong, including a diversity
of opinions in different components of society, Turkish citizens’
willingness to mobilise for their democracy and their aspiration
for genuine choices between candidates, parties and political programmes.
It hopes that Turkey can maintain and build upon this foundation
in the tradition of the pluralistic democracy that prevailed for
most of the almost one hundred years since the Republic of Turkey
was established.
10. The Assembly welcomes the Turkish authorities’ continuing
constructive engagement with the Council of Europe, notably through
the informal working group between the Council of Europe and the
Turkish Ministry of Justice. It is, however, disappointed and concerned
at President Erdoǧan’s assertion that Turkey was not bound by the
Chamber judgment of the European Court of Human Rights in the case
of Mr Demirtaş, despite the obligation to implement Court judgments
set out in Article 46 of the European Convention on Human Rights (ETS
No. 5, “the Convention”).
11. The Assembly therefore calls on the Turkish authorities to:
11.1. Respect fully the rights of
opposition politicians in a democracy, including the freedoms of expression,
association and assembly, and, in particular, to:
11.1.1. protect
and respect parliamentary immunity, in accordance with Assembly Resolution 1601 (2008) on
procedural guidelines on the rights and responsibilities of the
opposition in a democratic parliament and the standards of the Venice
Commission;
11.1.2. release Leyla Güven due to her parliamentary immunity,
until the end of her mandate, in the light of the recent decision
rendered by the Supreme Court of Cassation with respect to the detention
of deputy Enis Berberoǧlu;
11.1.3. release MPs and former MPs whose immunity was stripped
in 2016, in violation of Council of Europe standards, until the
completion of the review of their legal case;
11.1.4. amend the anti-terror law so as to ensure that its implementation
and interpretation comply with the Convention, as interpreted by
the European Court of Human Rights;
11.1.5. repeal Article 299 and further amend Article 301 of the
Penal Code, in accordance with the recommendations of the Venice
Commission;
11.1.6. fully implement the judgment of the European Court of
Human Rights in the case of SelahattinDemirtaş v. Turkey (No. 2);
11.1.7. follow up the recommendations of the European Committee
for the Prevention of Torture and Inhuman or Degrading Treatment
or Punishment (CPT/Inf(2018)11), with regard to Mr Abdullah Öcalan
and other prisoners at Imralı F-Type High-Security Closed Prison;
11.2. revise the electoral legislation in accordance with the
recommendations of the Venice Commission to ensure that elections
are not only free, but also fair and conducted in an environment conducive
to freedom of expression and freedom of the media;
11.3. in that context, lower the 10% electoral threshold, which
impedes the ability of the opposition to be represented in parliament
and undermines the parliament’s pluralistic nature;
11.4. co-operate with the Assembly in organising visits by its
authorised representatives to detained or imprisoned current and
former parliamentarians;
11.5. in close co-operation with the Council of Europe and in
strict compliance with Council of Europe standards:
11.5.1. finalise
and implement the judicial reform strategy so as to ensure the full
independence of the judiciary, including through reform of the Council
of Judges and Prosecutors;
11.5.2. finalise and implement a new Human Rights Action Plan
so as to ensure effective protection of Convention rights and freedoms,
as interpreted by the Court, and prompt and full implementation
of Court judgments.
11.6. review the constitutional reforms of 2017 with a view
to restoring the proper balance of and effective separation between
executive, legislative and judicial powers, on the basis of the
analysis set out in the opinion of the Venice Commission.
12. The Assembly calls on the Turkish authorities to address the
above concerns as a matter of priority and resolves to follow the
progress in the framework of the ongoing monitoring procedure. It
stands ready to co-operate with the Turkish delegation and authorities
on the implementation of all its recommendations, in the framework
of its monitoring procedure.
13. In the event of non-compliance by the Turkish authorities
with the relevant conditions set out in this resolution, the Assembly
commits itself to addressing to the Committee of Ministers a future
recommendation for application of the procedure set out in Article
46.4 of the European Convention on Human Rights with regard to Turkey.