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A. Draft resolution
(open)
Report | Doc. 15618 | 26 September 2022
The honouring of obligations and commitments by Türkiye
Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee)
Summary
In a mid-term review of the monitoring procedure for Türkiye, the Monitoring Committee focuses on the judiciary, the implementation of judgments of the European Court of Human Rights and the preparation of the 2023 presidential and parliamentary elections.
In this respect, the ongoing crackdown on members of the political opposition, the attempt to close the Peoples' Democratic Party (HDP), restrictions on freedom of expression and of the media and the overly-broad interpretation of anti-terror legislation remain worrisome. While welcoming the lowering of the electoral threshold from 10% to 7%, the committee is however concerned about other recent electoral amendments and calls on the Turkish authorities to secure all conditions for free and fair elections.
Furthermore, urgent reforms are needed to restore the full independence of the judiciary and an effective system of checks and balances.
The committee concludes that the change of the political system adopted in 2017 by Türkiye – while being a sovereign right of any member State – has seriously weakened its democratic institutions and made the system of checks and balances dysfunctional and deficient. The committee therefore invites the Parliamentary Assembly to continue to follow the developments concerning democracy, rule of law and human rights in the framework of the monitoring procedure for Türkiye.
A. Draft resolution 
(open)1. In April 2017, the Parliamentary
Assembly decided to place Türkiye under the monitoring procedure. Since
then, it has closely followed the developments in the country in
a spirit of dialogue and co-operation with the Turkish authorities.
The Assembly has paid particular attention to the unaddressed structural
deficiencies in the functioning of Türkiye’s democratic institutions,
as identified by Council of Europe monitoring mechanisms. The Assembly
has undertaken to make a mid-term review of the monitoring procedure,
focusing specifically on the implementation of the judgments of
the European Court of Human Rights, the judiciary and challenges
to the rule of law, and the preparation of the 2023 parliamentary
and presidential elections.
2. Significant political developments have occurred since the
adoption of the 2017 report: constitutional amendments establishing
a presidential system were adopted in 2017 by 51,4% of the voters
and a new political system was put in place. In recent years, worrying
political developments have impacted the functioning of democratic
institutions. In particular, it became challenging for members of
the political opposition to exercise their elected mandates in a
free and safe environment.
3. In reaction to these developments, the Assembly organised
three debates under urgent procedure. The first in January 2019
on “The worsening situation of opposition politicians in Turkey:
what can be done to protect their fundamental rights in a Council
of Europe member State?” (see Resolution
2260 (2019)), the second in October 2020 on the “New crackdown on
political opposition and civil dissent in Turkey: urgent need to
safeguard Council of Europe standards” (see Resolution 2347 (2020)) and the third in April 2021 on “The functioning of
democratic institutions in Turkey” (see Resolution 2376 (2021)).
4. Issues of concern identified by the Assembly include the independence
of the judiciary, the separation of powers and checks and balances,
restrictions on freedom of expression and of the media, the overly-broad interpretation
of anti-terror legislation, the implementation of judgments of the
European Court of Human Rights, restrictions on the protection of
human rights, and infringement of the fundamental rights of politicians and
(former) members of parliament from the opposition, and also lawyers,
journalists, academics and civil society activists.
5. The Assembly also remains vigilant about the safeguard of
women’s rights and gender equality in Türkiye. In this context,
it regrets the decision of the President of the Republic to withdraw
from the Council of Europe Convention on Preventing and Combating
Violence against Women and Domestic Violence (CETS No. 210, the
“Istanbul Convention”) in March 2021 and sincerely hopes that a
way will be found for Türkiye to reintegrate the Istanbul Convention,
which has become the gold standard in the fight against violence
against women and domestic violence.
6. The Assembly acknowledges that Türkiye has faced and is still
facing various and serious terrorist threats in a region that is
unstable. However, the response to these threats must be in compliance
with human rights, rule of law and democracy standards.
7. Moreover, Russia's aggression against Ukraine has added new
concerns for regional security and stability. In this respect, the
Assembly welcomes the mediation efforts undertaken by Türkiye with
a view to resolving the conflict, and commends the role played by
Türkiye in facilitating the signature of the United Nations-brokered
Black Sea Grain Initiative of 22 July 2022.
8. Concerning the execution of the judgements of the European
Court of Human Rights:
8.1. While
acknowledging that Türkiye has implemented an important number of
European Court of Human Rights rulings, the Assembly recalls that
the implementation of all rulings of the Court is at the core of
the protection of fundamental rights in all member States; the findings
of the Court should be respected, and not disregarded. In this context,
the Assembly calls on Türkiye to adopt a constructive approach and
abide by its obligations in a spirit of good faith and in accordance
with the principle of the rule of law.
8.1.1. In this respect, the Assembly was appalled by the aggravated
life-sentence given to philanthropist Osman Kavala on 25 April 2022
by the 13th High criminal court, this, notwithstanding
that the European Court of Human Rights had urged the Turkish authorities
to release Mr Kavala having found his pre-trial detention unlawful
and pursuing an ulterior purpose – namely to silence him and dissuade
other human rights defenders.
8.1.2. On 2 February 2022, the Committee of Ministers decided
to bring infringement proceedings against Türkiye over its failure
to implement this ruling of the European Court of Human Rights –
a rare procedure which had only been triggered once. While the Turkish authorities
argued that Mr Kavala had been released in February 2020, the European
Court confirmed, on 11 July 2022, that Türkiye had failed to implement
the judgment by re-arresting Mr Kavala on charges based on facts
that were similar, or even identical, to those that the Court had
already examined in its judgment.
8.2. Reiterating its call on Türkiye to implement the court
judgements, the Assembly will follow with close attention the activities
of the Committee of Ministers with respect to the follow-up of the infringement
proceedings under Article 46.4 of the European Convention on Human
Rights (ETS No. 5). It calls on the support of member States to
the Committee of Ministers to ensure that decisions in this respect
will not undermine or jeopardise the effectiveness of the system
of protection of fundamental rights and the credibility of the Court,
as this would open the way to a dangerous and detrimental trend for
other Council of Europe member States.
8.3. Noting that domestic procedures are still onward going,
the Assembly underscores that the solution to the Kavala case lies
in the hands of the Turkish judicial system. The latter has the
capacity to find a legal solution and show a more diligent interpretation
of the Court judgement, in compliance with its ruling and with international
law. In the meantime, the Assembly reiterates its call for the release
of Mr Kavala.
8.4. The Assembly also continues to follow the implementation
of the Court judgement of December 2020 relating to the detention
of opposition leader Selahattin Demirtaş (who has been in detention
since 2016) and its supervision by the Committee of Ministers. The
Court had also concluded that Article 18 of the Convention had been
violated, and that Mr Demirtaş’ detention sought an ulterior purpose,
namely to stifle political debate. The Assembly reiterates its call
for Mr Demirtaş’ release.
8.5. The Assembly has highlighted, in its previous resolutions,
the restrictive environment for civil society organisations. In
this respect, the Assembly is shocked by the conviction of Mr Kavala’s
co-defendants in the Gezi trial – all renowned persons, including
architects, intellectuals, prominent civil society activists, including
the Director of the Council of Europe School of Political Studies
– to 18 years of prison. The Assembly calls for their immediate
release and for their charges to be dropped.
9. Concerning the independence of the judiciary:
9.1. The Assembly recalls that the
European Commission for Democracy through Law (Venice Commission),
in its 2017 opinion, had concluded that the constitutional amendments
establishing a presidential system did not guarantee the separation
of powers and the independence of the judiciary, notably due to
the composition of the Council of judges and prosecutors.
9.2. Despite steps taken by the authorities – including the
adoption of an Action Plan on Human Rights in March 2021 and the
Fourth Judicial Package in July 2021 – the authorities have not
been able to address and redress some of the systemic issues which
seriously undermine the functioning of the justice system:
9.2.1. The right to a fair trial (which
represents 70% of the violations found by the Constitutional Court
in individual application cases lodged since 2012) and, in particular,
the violation of the right to a trial within a reasonable time (which
was found in 90% of the rulings of the Constitutional Court in 2020
and 2021) should be secured. Noting that the Constitutional Court
has launched a “pilot judgment procedure” and suspended these cases,
the Assembly urges the authorities to take all necessary legal steps
requested by the Constitutional Court to reduce the length of procedures.
9.2.2. In this context, the Assembly stresses the important role
of the Constitutional Court in promoting the protection of fundamental
freedoms, including the right to a fair trial, notably through the
mechanism of individual applications, and calls for the strengthening
of the Constitutional Court’s independence. The Assembly urges the
authorities to ensure more effective and systematic implementation
of its rulings by lower courts and welcomes the co-operation established
with the Council of Europe to find common solutions.
9.2.3. The Assembly also remains concerned about the situation
in prisons and calls on the authorities to implement the recommendations
of the European Committee for the Prevention of Torture and Inhuman
or Degrading Treatment or Punishment (CPT) and to authorise the publication
of all its reports. It welcomes the commitment by the authorities
to a zero-tolerance policy towards ill-treatment and torture, but
nonetheless urges them to take more resolute and credible action
to investigate thoroughly serious allegations of ill-treatment and
torture. It also urges the authorities to pay attention to the situation
of seriously ill prisoners, including former MP Aysel Tuğluk.
10. Concerning the upcoming presidential and parliamentary elections
scheduled in 2023:
10.1. The Assembly
values the commitment of the Turkish people to democratic processes
through their high participation in elections and a vibrant political
scene.
10.2. The Assembly however remains very concerned by the ongoing
crackdown on members of the political opposition, including the
procedures seeking to lift the parliamentary immunity (overwhelmingly of
opposition parties), and more generally acts of violence suffered
by opposition politicians which have put political pluralism and
the functioning of democratic institutions at risk. The case against
Canan Kaftancıoğlu, Head of the Republican People's Party (CHP)
provincial branch of Istanbul, convicted to nearly 5 years in prison
(and released under supervision) based on old Tweets, and for, inter alia, allegedly “insulting
the President”, and the ban on her participating in political life,
is yet another example of this restrictive and punitive environment
in which opposition members are operating.
10.3. The Assembly will closely follow the ongoing procedure
related to the attempt to close the Peoples' Democratic Party (HDP)
– which is the third largest party in parliament – and to ban 451
HDP politicians from political life. The Assembly recalls that closures
of political parties are a drastic measure which should occur only
as a last resort. As already stressed in its Resolution 2376 (2021), the Assembly remains confident that the Constitutional
Court will be guided by the strict regulations governing the closure
of political parties in Türkiye, the case law of the European Court
of Human Rights – where exceptions set out in Article 11 need to
be construed strictly, with a limited margin of appreciation of Contracting
States – and by the 1999 “Guidelines on the prohibition and dissolution
of political parties, and analogous measures” of the Venice Commission.
10.4. The Assembly notes that the Turkish Parliament adopted,
on 25 April 2022, amendments to the electoral law, regrettably without
extensive consultations and debates and failing to reach a political consensus,
as highlighted by the Venice Commission in June 2022 in its joint
opinion (CDL-AD(2022)016) with the Office for Democratic Institutions and Human
Rights of the Organization for Security and Cooperation in Europe
(OSCE/ODIHR).
10.4.1. The Assembly
welcomes the lowering of the electoral threshold from 10% to 7%
– a long-lasting request from the Assembly – as well as new arrangements
facilitating the participation of visually impaired persons in elections.
10.4.2. However, other provisions of this law are problematic:
the Venice Commission raised concerns, inter
alia, about the criteria required from political parties
to qualify to stand for elections, which “favours larger and well-established
political parties”, and the new composition of the district and
provincial electoral boards: their judicial members will no longer
be the three most senior judges in the province but determined “by
drawing lots” from eligible judges. For the Venice Commission, this
“potentially makes appointment more susceptible to political pressure and
manipulation in light of the limited safeguards in the judicial
appointment system to ensure the independence of judges”. This new
regulation is also a major source of concern for the opposition.
10.4.3. Changes were also made in the legal provisions concerning
the misuse of office in election campaigns; the Venice Commission
recommended that “the President does not stand outside the party
system but, rather, is part of it, there is no reason why s/he should
not be subject to the restrictions in the same ways as other high
public officials to prevent conflicts of interest and misuse of
administrative resources”.
10.4.4. In light of the recommendations made by the Venice Commission,
the Assembly urges the Turkish authorities to proceed to the proposed
changes or, at the least, to implement the legislation in a spirit
that will be conducive to a level playing field. The electoral legal
framework should ensure equal opportunities for all political players,
and this will constitute an important criterion to assess the fairness
of the upcoming elections.
10.5. Another essential component of political debates and elections
campaigns is freedom of expression. However, there are serious concerns
about ongoing restrictions and legal proceedings hampering the exercise
of this right. Recalling its previous requests and the Venice Commission’s 2016 opinion, the Assembly calls on Türkiye to, notably, amend Article
301 (Degrading Turkish Nation, State of Turkish Republic, the Organs
and Institutions of the State) and Article 125 (insult to officials),
as well as to abrogate Article 299 (Insult to the President) in
accordance with emerging European consensus towards decriminalisation
of defamation of the Head of State, and taking into account the
judgment of the Court in the Vedat Şorli v.
Turkey case and the Court’s case law.
10.6. In particular the overly-broad interpretation of the anti-terrorism
law has undermined freedom of expression and fundamental rights.
The Assembly reiterates its concerns that such interpretation of
the law has been used as a tool to stifle political debate and the
activities of civil society. Drawing inspiration from the amendment
of Article 7 of the Anti-Terrorism Law in October 2019, the Assembly
encourages the authorities to amend further articles of the Anti-Terrorism
Law and the Criminal Code which have led to violations of the right
to freedom of expression, to clarify that the exercise of the right
to freedom of expression does not constitute an offence, in the
same way that Article 7 now states that expressions of thought that
do not exceed the boundaries of reporting or for the purpose of
criticism shall not constitute criminal activity.
10.7. Media play an important role in election campaigns. Freedom
of media, however, remains a challenge. The Assembly notes that
long-standing issues remain problematic, such as attacks against journalists,
the control of media by the State, the use or withholding of advertising
funds as a means to marginalise and criminalise media critical of
the regime. The Assembly is concerned by the draft bill criminalising
“disinformation” that could lead to prison sentences and could potentially
lead to censoring online media. The Assembly asks for its withdrawal,
pending an opinion from the Venice Commission.
10.8. The Assembly stresses that transparency and accountability
are key for democracies and that transparency of party funding is
important to ensure fair electoral competition. The Assembly regrets
the lack of progress concerning the implementation of the recommendations
of the Group of States against Corruption (GRECO) and urges the
authorities to take action to increase transparency of party funding, to
adopt a law on ethical conduct for members of parliament, to ensure
transparency of the legislative process and to adopt measures to
ensure parliamentary members’ integrity. The Assembly also recalls GRECO’s
previous concerns about the weakened judicial independence, which
impacts on the fight against corruption.
11. The Assembly notes that the change of the political system
adopted in 2017 – while being a sovereign right of any member State
– has seriously weakened the democratic institutions in Türkiye
and made the system of checks and balances dysfunctional and deficient.
The Assembly expresses the urgent need for reforms to restore the
full independence of the judiciary and effective checks and balances.
The Turkish authorities need to ensure that all conditions will
be met to guarantee free and fair elections, including the ability of
the opposition to operate, and journalists to work in an independent
way. The Assembly remains at the disposal of the authorities to
pursue a constructive dialogue. It resolves, in the framework of
the monitoring procedure for Türkiye, to continue to follow the
developments in the country concerning democracy, rule of law and
human rights.
B. Explanatory memorandum, by Mr John Howell and Mr Boriss Cilevičs, co-rapporteurs
(open)1. Introduction
1. In April 2017, the Parliamentary
Assembly decided to place Türkiye under
the monitoring procedure. Since then, it has closely followed the
developments in the country in a spirit of dialogue and co-operation
with the Turkish authorities. The Assembly has paid particular attention
to the unaddressed structural deficiencies in the functioning of
Türkiye’s democratic institutions, as identified by Council of Europe
monitoring mechanisms. These issues of concern include the independence
of the judiciary, the separation of powers and checks and balances,
restrictions on freedom of expression and on the media, the overly-broad
interpretation of anti-terror legislation, the implementation of
judgments of the European Court of Human Rights, restrictions on
the protection of human and women’s rights and infringement of the
fundamental rights of politicians and (former) members of parliament
from the opposition, lawyers, journalists, academics and civil society
activists.
under
the monitoring procedure. Since then, it has closely followed the
developments in the country in a spirit of dialogue and co-operation
with the Turkish authorities. The Assembly has paid particular attention
to the unaddressed structural deficiencies in the functioning of
Türkiye’s democratic institutions, as identified by Council of Europe
monitoring mechanisms. These issues of concern include the independence
of the judiciary, the separation of powers and checks and balances,
restrictions on freedom of expression and on the media, the overly-broad
interpretation of anti-terror legislation, the implementation of
judgments of the European Court of Human Rights, restrictions on
the protection of human and women’s rights and infringement of the
fundamental rights of politicians and (former) members of parliament
from the opposition, lawyers, journalists, academics and civil society
activists. 2. Since then, co-operation between the Monitoring Committee,
the Assembly monitoring rapporteurs and Türkiye has remained intense,
despite the changes of rapporteurs and the Covid-19 pandemic
which seriously hampered the normal work of the rapporteurs. In
2018, the Assembly monitors Ms Marianne Mikko (Estonia, SOC) and
Mr Nigel Evans (United Kingdom, EC/DA) issued an information note
following their March 2018 visit, which dealt, inter
alia, with the consequences of the failed coup and the
disproportionate measures (including the dismissal of massive numbers
of officials and numerous closures of media and civil society associations)
taken under the state of emergency; the setting up of an Inquiry
Commission on State of Emergency Measures to provide legal remedy
for applications of dismissed civil servants or entities forced
to close; and the preparation of the 2018 parliamentary and presidential
elections as well as the 2019 local elections. The rapporteurs agree
that Türkiye faces a significant level of terrorism which the country
has a legitimate right to fight, but they have also examined
whether the legislation has been drafted too loosely in a way which
has a deleterious effect on human rights.
and the Covid-19 pandemic
which seriously hampered the normal work of the rapporteurs. In
2018, the Assembly monitors Ms Marianne Mikko (Estonia, SOC) and
Mr Nigel Evans (United Kingdom, EC/DA) issued an information note
following their March 2018 visit, which dealt, inter
alia, with the consequences of the failed coup and the
disproportionate measures (including the dismissal of massive numbers
of officials and numerous closures of media and civil society associations)
taken under the state of emergency; the setting up of an Inquiry
Commission on State of Emergency Measures to provide legal remedy
for applications of dismissed civil servants or entities forced
to close; and the preparation of the 2018 parliamentary and presidential
elections as well as the 2019 local elections. The rapporteurs agree
that Türkiye faces a significant level of terrorism which the country
has a legitimate right to fight, but they have also examined
whether the legislation has been drafted too loosely in a way which
has a deleterious effect on human rights.3. In recent years, worrying political developments have impacted
the functioning of democratic institutions, and in particular the
ability of members of the political opposition to exercise their
elected mandates in an environment conducive to genuine political
and open debates which characterise a democratic society. As a result,
the Assembly organised three debates under urgent procedure entitled
“The worsening situation of opposition politicians in Turkey: what
can be done to protect their fundamental rights in a Council of
Europe member State?” in January 2019 (see Resolution 2260 (2019)); “New crackdown on political opposition and civil dissent
in Turkey: urgent need to safeguard Council of Europe standards”
in October 2020 (see Resolution 2347
(2020)); and “The functioning of democratic institutions in
Turkey” in April 2021 (see Resolution
2376 (2021)).
4. Significant political developments have occurred since the
above-mentioned 2017 report: constitutional amendments establishing
the presidential system were adopted in 2017 by 51,4% of the voters
through a referendum held under the state of emergency. On 24 June
2018, President Erdoğan was re-elected with 52% of the vote, while
the Justice and Development Party (AKP) - Nationalist Movement Party
(MHP) coalition won the majority of seats in parliament. The Assembly
election observation mission assessed that these elections had provided
voters with a genuine political choice but that there were unequal
campaign conditions, giving an undue advantage to the incumbent
President and ruling party. In March 2019, the local elections
marked a turning point, with the opposition winning major cities,
including Istanbul and Ankara.
In March 2019, the local elections
marked a turning point, with the opposition winning major cities,
including Istanbul and Ankara.5. During this period, the country faced many challenges, both
at national and international levels, including economically. The
situation is marked today by high inflation – the annual inflation
rate of 80% in August 2022 was the highest in the last 24 years, rising unemployment,
a plunging Turkish lira and the presence of nearly four million
refugees. Türkiye launched several military interventions (in northern
Syria, Iraq, Libya) and external operations (in the East Mediterranean),
and recently announced a new military operation in Syria (with which
the country shares a 900-kilometer border) to form a 30 kilometre-wide
buffer zone along Türkiye’s border, the main objective
of this operation, as described by the authorities being to “eliminate
terrorist formations along Türkyie’s borders”. We
also bear in mind that the instable regional context, and the fact
that the country is hosting 4,5 million refugees. New
developments concerning the resolution of the Cyprus conflict are
also followed by the rapporteurs for the monitoring of Türkiye (this
question falls within the remit of the Sub-Committee on Conflicts
concerning Council of Europe Member States) and the Committee on
Political Affairs and Democracy. The Russian aggression
against Ukraine was another challenge, as the country has relations
with both Russia and Ukraine: Türkiye supports Ukraine’s territorial
integrity but does not apply the sanctions against Russia, since
Türkiye’s general policy is not to join unilateral sanctions. The
country has remained committed to the 1936 Montreux convention regarding
the Regime of the Straits and closed the Bosphorus Strait to military
ships; moreover it offered its mediation securing a meeting between
the Russian and Ukrainian ministers of foreign affairs on 10 March
2022 in the margins of the Diplomatic Forum of Antalya, hosted direct
negotiations between the two countries in İstanbul on 29 March 2022,
facilitated the signing of the UN-brokered Black Sea Grain Initiative
of 22 July 2022 (which enabled the resumption of commercial food exports
from three key Ukrainian ports) and the opening of a the Joint Coordination
Centre in Istanbul to implement this agreement. As a member of the
North Atlantic Treaty Organization (NATO), Türkiye expressed its
stance on the application of Sweden and Finland to join NATO due
to their alleged “ongoing propaganda and support to recruitment
and financing activities of terrorist organisations in these countries”. On
28 June 2022, Turkiye, Finland and Sweden signed a Trilateral
memorandum under the auspices of NATO, to address security concerns
raised by Türkiye and pave the way for Finland and Sweden to become
NATO members.
rising unemployment,
a plunging Turkish lira and the presence of nearly four million
refugees. Türkiye launched several military interventions (in northern
Syria, Iraq, Libya) and external operations (in the East Mediterranean),
and recently announced a new military operation in Syria (with which
the country shares a 900-kilometer border) to form a 30 kilometre-wide
buffer zone along Türkiye’s border, the main objective
of this operation, as described by the authorities being to “eliminate
terrorist formations along Türkyie’s borders”. We
also bear in mind that the instable regional context, and the fact
that the country is hosting 4,5 million refugees. New
developments concerning the resolution of the Cyprus conflict are
also followed by the rapporteurs for the monitoring of Türkiye (this
question falls within the remit of the Sub-Committee on Conflicts
concerning Council of Europe Member States) and the Committee on
Political Affairs and Democracy. The Russian aggression
against Ukraine was another challenge, as the country has relations
with both Russia and Ukraine: Türkiye supports Ukraine’s territorial
integrity but does not apply the sanctions against Russia, since
Türkiye’s general policy is not to join unilateral sanctions. The
country has remained committed to the 1936 Montreux convention regarding
the Regime of the Straits and closed the Bosphorus Strait to military
ships; moreover it offered its mediation securing a meeting between
the Russian and Ukrainian ministers of foreign affairs on 10 March
2022 in the margins of the Diplomatic Forum of Antalya, hosted direct
negotiations between the two countries in İstanbul on 29 March 2022,
facilitated the signing of the UN-brokered Black Sea Grain Initiative
of 22 July 2022 (which enabled the resumption of commercial food exports
from three key Ukrainian ports) and the opening of a the Joint Coordination
Centre in Istanbul to implement this agreement. As a member of the
North Atlantic Treaty Organization (NATO), Türkiye expressed its
stance on the application of Sweden and Finland to join NATO due
to their alleged “ongoing propaganda and support to recruitment
and financing activities of terrorist organisations in these countries”. On
28 June 2022, Turkiye, Finland and Sweden signed a Trilateral
memorandum under the auspices of NATO, to address security concerns
raised by Türkiye and pave the way for Finland and Sweden to become
NATO members.6. Another major – and regrettable – development relates to the
decision of President Erdoğan to withdraw Türkiye from the Council
of Europe Convention on Preventing and Combating Violence against
Women and Domestic Violence (CETS
No. 210, the “Istanbul Convention”). This withdrawal became
effective on 1st July 2021. This decision
triggered a strong reaction, at national and international levels,
and was covered by the previous Assembly report on Türkiye debated
under urgent procedure. Since then, civil society and women’s organisations
have continuously challenged this decision and expressed their attachment
to the Istanbul Convention – which has become the gold standard
in the fight against violence against women and domestic violence
– while insisting that the new law on violence against women adopted
in April 2022 by the parliament (and published in the Official Gazette
on 27 May 2022), would be insufficient to prevent feminicides. The authorities
claimed that the denunciation of the Convention did not affect the
legal and administrative structure established in Türkiye for the
protection, support and empowerment of victims of violence, notably
Law No. 6284 on Protection of Family and Prevention of Violence
against Women, which is in effect since 2012 and includes all the
measures of İstanbul Convention. They also stressed Türkiye’s commitment
to show zero tolerance to violence against women. This is to be welcome.
Nevertheless, we underline how important it is to safeguard and
reinforce women’s rights and gender equality in Türkiye and reiterate
the Assembly sincere wish expressed in its Resolution 2376 (2021) that a way will be found for Türkiye to reintegrate
the Istanbul Convention. We would like to underline the importance
of international co-operation and exchange of good practices in
this area, which is only possible within an international framework
such as the Istanbul Convention and could further strengthen the
effectiveness of Turkiye's efforts to combat domestic violence.
The authorities
claimed that the denunciation of the Convention did not affect the
legal and administrative structure established in Türkiye for the
protection, support and empowerment of victims of violence, notably
Law No. 6284 on Protection of Family and Prevention of Violence
against Women, which is in effect since 2012 and includes all the
measures of İstanbul Convention. They also stressed Türkiye’s commitment
to show zero tolerance to violence against women. This is to be welcome.
Nevertheless, we underline how important it is to safeguard and
reinforce women’s rights and gender equality in Türkiye and reiterate
the Assembly sincere wish expressed in its Resolution 2376 (2021) that a way will be found for Türkiye to reintegrate
the Istanbul Convention. We would like to underline the importance
of international co-operation and exchange of good practices in
this area, which is only possible within an international framework
such as the Istanbul Convention and could further strengthen the
effectiveness of Turkiye's efforts to combat domestic violence.7. Since March 2021, over 200 applications have been lodged with
the Council of State by civil society organisations and political
leaders, such as Ms Meral Akşener, Chairperson of the IYI (Good)
Party, challenging the legality of the presidential decision to
withdraw from the Istanbul Convention. In a 3-to-2 vote, the 10th
Chamber of the Council of State rejected the demands for a stay
of execution. However, the two dissenting opinions of the judges
and those of the Council of State prosecutors stated that the President
did not have the authority to withdraw from international treaties. On
28 April 2022, the Council of State prosecutor reiterated his position
that the President’s decision was unlawful after the first hearing
on six of these cases. The same position was reiterated on 7 June
2022 in the hearing concerning fifteen other applications to the
Council of State. On 19 July 2022, the 10th Chamber of the Council
of State ruled, by a 3-2 vote, that the presidential decree on the
withdrawal was lawful and was not in violation of the Turkish Constitution
and laws. The verdict can be appealed. We will continue to monitor
this, together with the Assembly General rapporteur on violence
against women, Ms Zita Gurmai (Hungary, SOC).
On
28 April 2022, the Council of State prosecutor reiterated his position
that the President’s decision was unlawful after the first hearing
on six of these cases. The same position was reiterated on 7 June
2022 in the hearing concerning fifteen other applications to the
Council of State. On 19 July 2022, the 10th Chamber of the Council
of State ruled, by a 3-2 vote, that the presidential decree on the
withdrawal was lawful and was not in violation of the Turkish Constitution
and laws. The verdict can be appealed. We will continue to monitor
this, together with the Assembly General rapporteur on violence
against women, Ms Zita Gurmai (Hungary, SOC).8. Many other issues related to democracy, human rights and the
rule of law in Türkiye deserve to be examined in the framework of
this monitoring report on Türkiye, the first since the country was
returned to the monitoring procedure. However, in agreement with
the Monitoring Committee, we propose, given the current context,
to issue an initial, interim report and focus on three main issues
which have had a significant impact on the functioning of democratic
institutions, namely challenges to the rule of law, the implementation
of the decisions of the European Court of Human Rights and the preparation
of the 2023 parliamentary and presidential elections.
9. This report is based on the findings of the Council of Europe
monitoring mechanisms and other major international and national
non-governmental organisations, on the work carried out by the Monitoring Committee
since the previous rapporteurs’ last visit in 2018 (namely four
exchanges of views on recent developments and three hearings on
the 2019 local elections, the reform of the justice system and the
situation of dismissed and replaced mayors) and of our activities
as rapporteurs: online meetings were organised in 2021 with students,
academics, representatives of the Council for Higher Education,
the Ministry of the Interior and the Ministry of Justice with regard
to the protests at Bosphorus University. We also paid a regular
fact-finding visit to Türkiye in March 2022. Following the aggravated
life sentence handed down to Osman Kavala, despite an earlier ruling
from the European Court of Human Rights calling for his release,
the Monitoring Committee asked us to pay an ad
hoc visit in May 2022 to follow the developments and
report back. On 8 August 2022, we received the comments to the preliminary
draft report from the Turkish Delegation to the Assembly in co-operation
with the competent authorities of Türkiye. These comments included contributions from
the authorities and the ruling party, and from the opposition parties,
the Republican People’s Party (CHP), the Peoples’ Democratic Party
(HDP) and the IYI Party, which have provided useful and constructive
input to this report.
These comments included contributions from
the authorities and the ruling party, and from the opposition parties,
the Republican People’s Party (CHP), the Peoples’ Democratic Party
(HDP) and the IYI Party, which have provided useful and constructive
input to this report.10. We have continuously underscored that it is essential to engage
in open and constructive discussions with the Turkish authorities.
In this respect, we would like to thank the Turkish delegation to
the Assembly for its excellent co-operation and readiness to provide
all necessary support and assistance to the rapporteurs in fulfilling
their mandate.
2. Rule of law
2.1. Rule of law and the independence of the justice system in the current constitutional framework
11. As documented in previous resolutions
and opinions of the European Commission for Democracy through Law
(Venice Commission), long-standing concerns subsist about the independence
of the judiciary in Türkiye. This
question has become even more acute since 2017, when the constitutional
amendments establishing an executive presidency were adopted on
16 April 2017 by a majority of voters (51.4%) (with a turnout of
85,32%), after a speedy parliamentary procedure and under the state
of emergency. While the constitutional amendments provided for the
abolition of military courts – which the Assembly welcomed, at the same
time they introduced some negative measures. In this respect, it
is worth recalling the issues highlighted by the Venice Commission
in its 2017 opinion on these constitutional amendments, in
relation to the functioning of the justice system in what the Turkish
authorities then described as a “Turkish-style presidential system”.
Let us briefly recall some of the concerns raised at that time:
This
question has become even more acute since 2017, when the constitutional
amendments establishing an executive presidency were adopted on
16 April 2017 by a majority of voters (51.4%) (with a turnout of
85,32%), after a speedy parliamentary procedure and under the state
of emergency. While the constitutional amendments provided for the
abolition of military courts – which the Assembly welcomed, at the same
time they introduced some negative measures. In this respect, it
is worth recalling the issues highlighted by the Venice Commission
in its 2017 opinion on these constitutional amendments, in
relation to the functioning of the justice system in what the Turkish
authorities then described as a “Turkish-style presidential system”.
Let us briefly recall some of the concerns raised at that time:12. Concerning 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. 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. In addition, 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”.
13. Concerning the weakening of the
independence of the judiciary: the Venice Commission
pointed out that the composition of the Council of Judges and Prosecutors
(CJP) would be problematic, as all 13 members would be appointed
by either the President (four+two ex
officio members, namely the Minister of Justice and the
Undersecretary of Justice, appointed by the President) or the parliament
(7), which contradicts both the position of the Venice Commission
and Committee of Ministers Recommendation CM/Rec(2010) 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”.
“No member of the Council would be elected by peer judges anymore.
On account of the Council’s important functions of overseeing appointment,
promotion, transfer, disciplining and dismissal of judges and public
prosecutors, the President’s control over the Council would extend
to all the judiciary. Control over the Council of Judges and Prosecutors
would also indirectly enhance the President’s control over the Constitutional
Court”.
and the
Undersecretary of Justice, appointed by the President) or the parliament
(7), which contradicts both the position of the Venice Commission
and Committee of Ministers Recommendation CM/Rec(2010) 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”.
“No member of the Council would be elected by peer judges anymore.
On account of the Council’s important functions of overseeing appointment,
promotion, transfer, disciplining and dismissal of judges and public
prosecutors, the President’s control over the Council would extend
to all the judiciary. Control over the Council of Judges and Prosecutors
would also indirectly enhance the President’s control over the Constitutional
Court”. 14. Furthermore, the constitutional amendments increased the influence of the Executive over the Constitutional
Court following the changes made regarding the manner
of appointment of the members of the CJP: “the CJP is responsible
for the elections of the members of the Court of Cassation and the
Council of State. Both courts are entitled to choose two members
of the Constitutional Court by sending three nominees for each position
to the President, who makes the appointments”. The President’s
control over the Council of Judges and Prosecutors would therefore
also indirectly enhance the President’s control over the Constitutional
Court.
The President’s
control over the Council of Judges and Prosecutors would therefore
also indirectly enhance the President’s control over the Constitutional
Court. 15. These conclusions were also confirmed by GRECO in its latest
report. Recalling that the new composition of the CJP runs counter
to European standards for an independent self-governing body of
the judiciary, it noted that “the executive has kept a strong influence
on a number of key matters regarding the running of the judiciary:
the process of selecting and recruiting candidate judges and prosecutors; reassignments
of judicial officeholders against their will; disciplinary procedures;
and training of judges and prosecutors. As regards the training
of judges and prosecutors, lectures on the Judicial Ethics Declaration
have started but GRECO recommended more practical training based
on more detailed guidance, and separate training for judges and
prosecutors. We were informed that the
CJP adopted on 8 March 2022 a “Social Media Usage Guideline” and
works on a guideline, which includes concrete examples of the implementation
of the Declaration of Ethics for Turkish Judiciary. The Justice
Academy of Türkiye also organises trainings on judicial ethics organised
for the candidate and serving judges and prosecutors which
should be encouraged, taking however into account GRECO’s recommendations.
We were informed that the
CJP adopted on 8 March 2022 a “Social Media Usage Guideline” and
works on a guideline, which includes concrete examples of the implementation
of the Declaration of Ethics for Turkish Judiciary. The Justice
Academy of Türkiye also organises trainings on judicial ethics organised
for the candidate and serving judges and prosecutors which
should be encouraged, taking however into account GRECO’s recommendations.16. Concerning the prevention of corruption in respect of members
of parliament, judges and prosecutors (Fourth Round), GRECO’s latest
compliance report of March 2022 concluded
that no progress had been made by Türkiye: the level of implementation
remained the same as in the previous report published in 2020. The parliament has not yet been seized
or examined a draft Law on Ethical Conduct for Members of Parliament;
transparency of the legislative process and measures to ensure MPs’
integrity are still lacking. GRECO has also recalled that “the underlying
reasons for GRECO’s recommendations remain the fundamental structural
changes which have weakened judicial independence and also led the
judiciary to appear even less independent from the executive and
political powers than at the time of the adoption of the Evaluation
Report”. This worrisome delay in
implementing the recommendations of the GRECO should be urgently
addressed to improve the anti-corruption framework, and the transparency
and accountability of State institutions.
concluded
that no progress had been made by Türkiye: the level of implementation
remained the same as in the previous report published in 2020. The parliament has not yet been seized
or examined a draft Law on Ethical Conduct for Members of Parliament;
transparency of the legislative process and measures to ensure MPs’
integrity are still lacking. GRECO has also recalled that “the underlying
reasons for GRECO’s recommendations remain the fundamental structural
changes which have weakened judicial independence and also led the
judiciary to appear even less independent from the executive and
political powers than at the time of the adoption of the Evaluation
Report”. This worrisome delay in
implementing the recommendations of the GRECO should be urgently
addressed to improve the anti-corruption framework, and the transparency
and accountability of State institutions.17. In 2017, the Venice Commission had assessed that the proposed
constitutional amendments would introduce in Türkiye a presidential
regime “which lacks the necessary checks and balances required to safeguard
against becoming an authoritarian one”. It had concluded that “the
substance of the proposed constitutional amendments represents a
dangerous step backwards in the constitutional democratic tradition of
Turkey”. In short, the Venice Commission concluded that the 2017
constitutional amendments establishing the presidential system did
not guarantee the separation of powers. For its part, the Assembly
has, in several resolutions, called for the revision of these constitutional
provisions to restore the separation of powers.
18. The presidential system has introduced profound changes in
the Turkish institutional system, and remains an issue of political
debate. The united opposition parties (see below) have vowed to
reintroduce the parliamentary system, should they win the next elections.
In light of the above assessments made in previous years by the
Venice Commission and GRECO, the main opposition party CHP shared
with us its assessment of the current functioning of the political
system:
- The CHP assesses that “the oversight powers of the legislature have become dysfunctional. With the decree power granted to the president, the legislative authority that had belonged exclusively to the parliament has become vested in the president, disrupting the separation of powers to the benefit of the executive. The legislative checks on the executive have been effectively obliterated. The authority to censure and pose verbal questions to ministers has been abolished. Besides, the parliamentary investigations, which had constituted one of the most effective checks for the legislature, have been rendered inoperable due to an increase in the quorum. Furthermore, the inalienable budgetary right exercised by the legislature on behalf of the nation has been abolished. This right has been transferred to the president, with the previous year's budget taking effect should the budget drafted by the president be rejected. Thus, the negotiations in the parliament and the rejection of the budget have no practical consequence for the executive”;
- The CHP added that “the fact that the Constitutional Court is under pressure and being threatened by the government and that almost all its members are to be appointed directly or indirectly by the president undermines the independence and impartiality of the high court. Appointments to the Constitutional Court are carried out with political motives. The aim is to have a Constitutional Court that is subjected to the executive. The verdicts of the Constitutional Court are not implemented because of the pressure of the executive and the Council of Judges and Prosecutors do not impose sanctions against the lower court judges who do not respect the verdicts being mentioned. These judges are even rewarded by the Council. Such developments obliterate the principle of constitutional state."
19. Commenting our report, the IYI Party has also emphasised that
“Türkiye is a democratic state of the law with 150 years of parliament
and 100 years of republican tradition”: the IYI would implement
a “strengthened parliamentary system” after an election win, with
“a state administration based on values such as democracy, human
dignity, freedom, rule of law and human rights”.
2.2. Issues of concern in light of the current functioning of the justice system
20. The rule of law and the independence
of the judiciary are essential to ensure that fundamental freedoms are
protected through fair trials and procedural safeguards. The number
of trials which concern freedom of expression, freedom of the media
or the deprivation of liberty is worrying. Current and previous
Assembly monitoring rapporteurs have reacted on several occasions to
what the Assembly called a judicial harassment of those expressing
dissenting or critical opinions – which are fully legitimate in
a democratic society – from a large spectrum of groups in society
(this includes politicians, journalists, academics, students, civil
society activists, etc). This trend disregards the democratic principles
enshrined in the Turkish Constitution and the European Convention
on Human Rights (ETS No. 5) (which, in line with article 90 of the
Constitution, prevails over national legislation in Türkiye).
to
what the Assembly called a judicial harassment of those expressing
dissenting or critical opinions – which are fully legitimate in
a democratic society – from a large spectrum of groups in society
(this includes politicians, journalists, academics, students, civil
society activists, etc). This trend disregards the democratic principles
enshrined in the Turkish Constitution and the European Convention
on Human Rights (ETS No. 5) (which, in line with article 90 of the
Constitution, prevails over national legislation in Türkiye).21. We have raised these concerns with the authorities. In reply,
they recalled that the Constitution provides for the independence
of the judiciary. They also recalled that the mass dismissal of
over 4 000 judges and prosecutors for their alleged allegiance to
the Gülen movement – which is referred to as the “Fetullahist Terrorist
Organization (FETÖ)” by the Turkish authorities –
has had consequences on the functioning of the justice system, with
the recruitment of junior judges and prosecutors, and that the decisions of courts should be
handled within the Turkish judicial system.
–
has had consequences on the functioning of the justice system, with
the recruitment of junior judges and prosecutors, and that the decisions of courts should be
handled within the Turkish judicial system.22. In this respect, the pre-trial detention of judges and prosecutors
following their mass dismissal has been found to be in violation
of Council of Europe standards by the Venice Commission and the
Assembly. More recently, the European Court of Human Rights issued
a ruling concerning the Turan and others
v. Turkey cases, which concerned
the arrest and pre-trial detention of 427 of these judges and prosecutors
on suspicion of their membership of the Gülen movement in the aftermath
of the attempted coup of 15 July 2016. In this case, the Court concluded
the violation of Article 5.1 of the Convention on account of the
unlawfulness of the initial pre-trial detention of the applicants
who were ordinary judges and prosecutors and members of the Court
of Cassation or the Supreme Administrative Court at the time of
their detention. The Court confirmed its judicial stance and case
law concerning the unlawfulness of the pre-trial detention of the
members of the judiciary and the unreasonable interpretation by
Turkish courts of the notion of in flagrante
delicto with a view to evading procedural safeguards.
The Court’s position has been previously established in the similar applications
of dismissed members of the Constitutional Court, Alparslan Altan
and Erdal Tercan and of a purged judge Hakan Baş.
which concerned
the arrest and pre-trial detention of 427 of these judges and prosecutors
on suspicion of their membership of the Gülen movement in the aftermath
of the attempted coup of 15 July 2016. In this case, the Court concluded
the violation of Article 5.1 of the Convention on account of the
unlawfulness of the initial pre-trial detention of the applicants
who were ordinary judges and prosecutors and members of the Court
of Cassation or the Supreme Administrative Court at the time of
their detention. The Court confirmed its judicial stance and case
law concerning the unlawfulness of the pre-trial detention of the
members of the judiciary and the unreasonable interpretation by
Turkish courts of the notion of in flagrante
delicto with a view to evading procedural safeguards.
The Court’s position has been previously established in the similar applications
of dismissed members of the Constitutional Court, Alparslan Altan
and Erdal Tercan and of a purged judge Hakan Baş.23. With reference to some cases which we have been closely following,
a number of issues were discussed with the authorities:
24. We recalled the need for the lower
courts to comply with the decisions of higher courts (including
the Constitutional Court), in compliance with the Turkish
constitution. We remain concerned by the fact that decisions of
the Constitutional Court – as was the case of the (former) MP Mr Enis
Berberoğlu – were not immediately
complied with by lower courts. This was also reflected by the Committee
of Ministers (supervising the implementation of cases related to
the violation of freedom of expression) which noted that “the prosecutors and
the lower courts do not follow the case law of the higher courts
and continue to initiate prosecutions or convict journalists and
others, for activities that should be tolerated as the exercise
of freedom of expression as protected by Article 10” and requested
“information on the relevant practice of prosecutors and lower courts to
allow the Committee to assess the present situation”.
– were not immediately
complied with by lower courts. This was also reflected by the Committee
of Ministers (supervising the implementation of cases related to
the violation of freedom of expression) which noted that “the prosecutors and
the lower courts do not follow the case law of the higher courts
and continue to initiate prosecutions or convict journalists and
others, for activities that should be tolerated as the exercise
of freedom of expression as protected by Article 10” and requested
“information on the relevant practice of prosecutors and lower courts to
allow the Committee to assess the present situation”. 25. The issue of fair trials is
prominent, as documented by the Constitutional Court, where individual applications
can be lodged since 2012 regarding breaches of the rights enshrined
in the European Convention on Human Rights. In ten years, the Constitutional
Court has received 392 758 complaints. 90% were rejected (either
on administrative grounds (4%) or for being inadmissible (86%).
80% of all cases have been processed. In 28 402 cases (namely 9,1%
of all complaints received), the Court found at least one violation.
In 70,8% of these cases, the Court found that the right to a fair
trial was violated. In 2021,
60 000 individual applications were made, as many as the European
Court of Human Rights received that same year, as the President
of the Constitutional Court noted. This trend was
confirmed in recent years: since 2020, the Court has been receiving
a significant number of applications deriving from “the right to
trial within reasonable time” (more than 39 000 in the first semester
2022 alone); in almost 90% of its judgments issued in 2020 and 2021,
the Constitutional Court found a violation of this right. Therefore,
on 5 July 2022, the Court applied a “pilot judgment procedure” and
decided to postpone the related cases for a period of time on the
condition that the legislators take measures required to enforce
the judgment. We can but ask the authorities
to swiftly proceed to the expected reforms in order to address this
systemic issue.
In 2021,
60 000 individual applications were made, as many as the European
Court of Human Rights received that same year, as the President
of the Constitutional Court noted. This trend was
confirmed in recent years: since 2020, the Court has been receiving
a significant number of applications deriving from “the right to
trial within reasonable time” (more than 39 000 in the first semester
2022 alone); in almost 90% of its judgments issued in 2020 and 2021,
the Constitutional Court found a violation of this right. Therefore,
on 5 July 2022, the Court applied a “pilot judgment procedure” and
decided to postpone the related cases for a period of time on the
condition that the legislators take measures required to enforce
the judgment. We can but ask the authorities
to swiftly proceed to the expected reforms in order to address this
systemic issue.26. The recourse to secret witnesses has
also been a matter of concern. Anonymous witnesses have been a controversial
issue in political trials in Türkiye since they were introduced
in 2008. The European
Court of Human Rights had ruled on 13 October 2020 that, unless
a conviction is based on other solid evidence, secret witness testimony
alone cannot be grounds for lawful conviction.
The European
Court of Human Rights had ruled on 13 October 2020 that, unless
a conviction is based on other solid evidence, secret witness testimony
alone cannot be grounds for lawful conviction. 27. The issue of the impartiality of
the justice system also needs to be addressed. In the
light of the Kavala case, which we became acquainted with during
our last visit, we were concerned by several issues raised by the
lawyers and family of the plaintiffs, which seriously challenged
the impartiality of several judges and prosecutors who had been
dealing with the case since 2013, and which have seriously undermined
their trust in the procedure and expectation of a fair trial. We
would like to highlight some of the issues raised in this case:
- The prosecutor who originally carried out the investigation and wiretapped the human rights defenders, Muammer Akkas, was dismissed as part of an investigation into the anti-corruption operations carried out on 17-25 December 2014 [by alleged members of the Gülen movement]. He has fled the country. His evidence was however included in the file;
- One of the judges who handed down the aggravated life sentence on Mr Kavala and sentenced his co-defendants to 18 years in prison had been a candidate to become a deputy for the ruling AKP Party in 2018 (while the plaintiffs, in Osman Kavala’s case, were members of the Cabinet of then Prime minister Mr Erdoğan).
28. The Kavala case also raises questions about decisions made
by the Council of judges and prosecutors:
- in June 2019, Galip Mehmet Perk, the judge who voted against the continued arrest of Mr Kavala and Mr Aksakoğlu, was reassigned by the Council of judges and prosecutors to another court;
- The three judges who acquitted the defendants in February 2020 – a decision openly criticised by President Erdoğan – were investigated by the Council;
- While disregarding its own principle that "judges who do not comply with Constitutional Court rulings cannot be promoted”, the Council promoted Akın Gürlek – who has issued many controversial contentious sentences
29. The authorities explained that some of these issues were currently
addressed in different action plans: a strategy of justice reform
was launched in 2019. On 2 March 2021, President Erdoğan unveiled
the Action Plan on Human Rights, identifying 9 goals, 50 targets
and nearly 400 activities that should be implemented over the next
two years. They aimed at “strengthening the right to a fair trial”,
“protect and strengthen freedom of expression, association and religion”
and promote “legal predictability and transparency”. The monitoring and
evaluation board was established by a Presidential Circular on 30
April 2021. The
authorities provided us with detailed information about its content
and implementation and indicated that 40% of the activities foreseen
had been implemented. We refer to the specific information received
by the authorities and will follow its implementation. We also note
that the annual report should be considered by the parliament.
The
authorities provided us with detailed information about its content
and implementation and indicated that 40% of the activities foreseen
had been implemented. We refer to the specific information received
by the authorities and will follow its implementation. We also note
that the annual report should be considered by the parliament.30. The Turkish authorities also adopted the Fourth Judicial Package
on 8 July 2021, including the amendment to Article 100 of the Code
of Criminal Procedure which introduced the requirement of concrete evidence
justifying strong suspicion to detain persons. This amendment was
welcomed by the Committee of Ministers, but in “view of the increasing
number of new judgments examined within the framework of the Nedim Şener group of cases”, it
urged the authorities to “take further measures to ensure that judicial
authorities rely on concrete evidence justifying strong suspicion
when placing individuals in detention and to provide information
on the current judicial practice”.
31. Again, on the positive side, the Turkish authorities and the
Council of Europe are implementing several co-operation programmes
aimed at addressing relevant issues of concern and improving the
legal practice, which is key to enhancing the independence and impartiality
of the judiciary. We welcome for example the project on ‘Supporting
the Effective Implementation of Turkish Constitutional Court Judgments
in the Field of Fundamental Rights’, which could promote a more
effective implementation of Constitutional Court rulings by lower
courts. This technical co-operation
is a good example of how the Council of Europe and various stakeholders
representing the Turkish authorities can exchange and look for solutions
to address structural deficiencies.
This technical co-operation
is a good example of how the Council of Europe and various stakeholders
representing the Turkish authorities can exchange and look for solutions
to address structural deficiencies.2.3. Impact of the justice administration on the situation in prisons
32. The functioning of the justice
system was also adversely impacted by the consequences of the failed coup
in 2016 which was followed by mass detentions. Since then, arrests
of individuals for their alleged membership in the Gülen movement
have continued in the police, the army, and other State institutions. According
to the statement of 22 November 2021 by the Minister of the Interior,
Mr Soylu, 99 962 persons were arrested in operations against supporters
of the Gülen movement since the coup attempt. 22 340 people with alleged
links to the movement are currently in prison, including both those
who are serving sentences and those in pre-trial detention. A further
25 026 individuals are currently wanted on terrorism charges.
33. These developments contributed to making the situation in
prisons even more difficult. There are currently 319 587 people
detained. In
the Council of Europe’s Annual Penal Statistics on Prison Populations for
2021 (so-called SPACE I study ) and taking into account countries
with more than 300 000 inhabitants, Türkiye was the country with
the second highest incarceration rates on 31 January 2021 (325 inmates
per 100 000 inhabitants) after Russia (328). Türkiye reported a
prison density of more than 105 inmates per 100 places (108 – as
a matter of fact, this being an indicator of “serious overcrowding”).
While the SPACE study noted that the Covid-19 pandemic had contributed
to reducing the prison population in Europe in 2020, consolidating
a ten-year-long trend in most European States, Türkiye was the only
country (with more than 300 000 inhabitants) that had a higher prison
population in 2021 than in 2011.
In
the Council of Europe’s Annual Penal Statistics on Prison Populations for
2021 (so-called SPACE I study ) and taking into account countries
with more than 300 000 inhabitants, Türkiye was the country with
the second highest incarceration rates on 31 January 2021 (325 inmates
per 100 000 inhabitants) after Russia (328). Türkiye reported a
prison density of more than 105 inmates per 100 places (108 – as
a matter of fact, this being an indicator of “serious overcrowding”).
While the SPACE study noted that the Covid-19 pandemic had contributed
to reducing the prison population in Europe in 2020, consolidating
a ten-year-long trend in most European States, Türkiye was the only
country (with more than 300 000 inhabitants) that had a higher prison
population in 2021 than in 2011. 34. The Human Rights Association İstanbul Branch Prisons Commission
considers that around 15-20% of these nearly 300 000 prisoners were
arrested for political reasons and face serious rights violations ;
they are subjected to longer deprivation of freedom than other prisoners
serving the same time and harsher conditions of execution such as
isolation.
;
they are subjected to longer deprivation of freedom than other prisoners
serving the same time and harsher conditions of execution such as
isolation. 35. Despite the introduction of early release measures due to
the pandemic (which however excluded those convicted or detained
for “terror-related charges”, including, inter
alia, many intellectuals, journalists, members of parliament,
elected mayors, civil society representatives or ordinary citizens
in detention for expressing critical views), prisons remain overcrowded.
During the Covid-19 pandemic the Criminal Enforcement Law adopted
on 14 April 2020 had allowed the early or conditional release of
90 000 prisoners to prevent the spread of the Covid-19 pandemic
in overcrowded prisons. We
have been informed that this legislation was extended until 31 July
2023. In January 2022, the Turkish Presidency has allocated 2 billion
Turkish liras to build 36 new prisons in 2022, in addition to the
383 currently existing. This could, however,
significantly increase Türkiye’s already high incarceration rate.
We
have been informed that this legislation was extended until 31 July
2023. In January 2022, the Turkish Presidency has allocated 2 billion
Turkish liras to build 36 new prisons in 2022, in addition to the
383 currently existing. This could, however,
significantly increase Türkiye’s already high incarceration rate.36. In the meantime, we continue to receive information about
allegations of torture and ill-treatment, as reported by the Human
Rights Association, which recently documented that prisoners suffer
from trauma after strip searches (now renamed “detailed search” ),
torture, mistreatment and various other rights violations. Other allegations
stem from the Platform for an Independent Judiciary which has repeatedly
and openly alerted about the brutal assaults on and ill-treatment
of imprisoned Turkish judges and prosecutors. The
refusal of the Ankara Bar Association to release the report on alleged
torture in police custody against Gülenists prepared by the Bar's
Human Rights Centre further fuelled concerns about the extent of
this problem.
),
torture, mistreatment and various other rights violations. Other allegations
stem from the Platform for an Independent Judiciary which has repeatedly
and openly alerted about the brutal assaults on and ill-treatment
of imprisoned Turkish judges and prosecutors. The
refusal of the Ankara Bar Association to release the report on alleged
torture in police custody against Gülenists prepared by the Bar's
Human Rights Centre further fuelled concerns about the extent of
this problem. 37. We shared our concerns with the Chair of the parliamentary
inquiry committee on human rights, which carries out inspection
visits to prisons, and which could play a positive role in addressing
issues of concern related to detention conditions. We also understand
that the authorities could, in the framework of the implementation
of the 2021 Action Plan on Human Rights, work at strengthening the
Human Rights and Equality Institution in order to allow it to meet
the Paris Principles and be accredited as a National Mechanism for
the prevention of torture. We were later informed that the application
process launched in July 2021 by the Human Rights and Equality Institution
should be examined by the Sub-committee on Accreditation Secretariat of
the Global Alliance of National Human Rights Institutions in the
second semester 2022.
38. In the Council of Europe, allegations of torture and ill-treatment
in places of detention are monitored by the CPT. The CPT
paid a regular visit to Türkiye in January 2021 to examine the treatment
and safeguards afforded to persons detained by law enforcement agencies
as well as the treatment and conditions of detention of persons
held in prisons. The CPT also discussed the follow-up of its previous
recommendations regarding the situation of the prisoners being held
in Imralı F-type High-Security Prison. We encourage the
Turkish authorities to implement the recommendations of the CPT,
to address the issue of isolation of prisoners, and to authorise the publication
of its report. We have also taken note of the authorities’ reiterated
commitment to a zero-tolerance policy against torture, which,
however, requires determined action and a firm stance. In this respect,
there was a noteworthy unanimous decision of the Constitutional
Court on 9 August 2022 following the death of 19-year-old Ali İsmail
Korkmaz in 2016, who had been beaten to death by police officers
and civilians during the 2013 Gezi Park protests. Mr Korkmaz’s family
had lodged an individual application to the Constitutional Court,
which ruled that Mr Korkmaz had been “subjected to torture” in violation
of the Constitution's Article 17 on the prohibition of torture.
It also ordered the State to pay compensation to the family and
ordered the retrial of police officer Hüseyin Engin who was previously
acquitted. The Court also stressed that “law enforcement officers
must respect human dignity under all circumstances”.
The CPT
paid a regular visit to Türkiye in January 2021 to examine the treatment
and safeguards afforded to persons detained by law enforcement agencies
as well as the treatment and conditions of detention of persons
held in prisons. The CPT also discussed the follow-up of its previous
recommendations regarding the situation of the prisoners being held
in Imralı F-type High-Security Prison. We encourage the
Turkish authorities to implement the recommendations of the CPT,
to address the issue of isolation of prisoners, and to authorise the publication
of its report. We have also taken note of the authorities’ reiterated
commitment to a zero-tolerance policy against torture, which,
however, requires determined action and a firm stance. In this respect,
there was a noteworthy unanimous decision of the Constitutional
Court on 9 August 2022 following the death of 19-year-old Ali İsmail
Korkmaz in 2016, who had been beaten to death by police officers
and civilians during the 2013 Gezi Park protests. Mr Korkmaz’s family
had lodged an individual application to the Constitutional Court,
which ruled that Mr Korkmaz had been “subjected to torture” in violation
of the Constitution's Article 17 on the prohibition of torture.
It also ordered the State to pay compensation to the family and
ordered the retrial of police officer Hüseyin Engin who was previously
acquitted. The Court also stressed that “law enforcement officers
must respect human dignity under all circumstances”. 39. Another concern that should be urgently addressed is the situation
of ill prisoners in Türkiye. According to the statement of the Human
Rights Association Prisons Commission of 14 December 2021, at least
59 ill prisoners have lost their lives since early 2020, including
seven who died shortly after deferment of the execution of their
sentences. And according to the Human Rights Association’s statement
of 19 November 2021, there are at least 1 569 ill prisoners, 591
of whom are seriously ill. The number of ill prisoners has multiplied
by six in ten years. The authorities informed us that Türkiye has
in the meantime put into service R Type Closed Penitentiary Institutions
in Metris, Menemen and Elazığ so as to accommodate, rehabilitate
and treat ill, dependent convicts and detainees.
40. One of these seriously ill prisoners is former MP Aysel Tuğluk,
who has been detained since 2016 and suffers early-onset dementia
(see below). Sadly, the number of prisoners who have lost their
lives in Türkiye's prisons has increased by nine in just the past
three months. The HDP has also expressed its concern and documented
the worsening situation of ill-prisoners in Türkiye, which
needs to be urgently addressed by the authorities.
which
needs to be urgently addressed by the authorities.3. Implementation of judgements of the European Court of Human Rights
41. Türkiye was among the first
States to join the Council of Europe and has played a leading role
in the Organisation. However, the developments of the past few years
have raised concerns about whether the country is fulfilling its
obligations. These include implementation of the judgements of the
European Court of Human Rights (which is supervised by the Committee
of Ministers), which is essential to ensure the effectiveness of
the protection of fundamental freedoms and human rights. In February
2022, the Committee of Ministers launched an infringement procedure
for non-compliance with the ruling of the Court in the case of Osman
Kavala.
42. The issue is clear. The Turkish authorities argue that by
releasing Mr Kavala they have complied with the judgment of the
European Court of Human Rights even although he was subsequently
rearrested. Most other observers believed the Court judgement applies
to the evidence on which the original judicial decision was based
and that these elements are substantially lacking. On 11 July 2022,
the European Court has clarified the matter and confirmed that Türkiye
did not implement this judgment.
3.1. Some facts and figures
43. In 2021, Türkiye represented
21,7% of the number of applications (compared to 15,7% in 2019 and
19% in 2020) and 7% of the judgements delivered by the European
Court of Human Rights (Court) in 2021. As of 31 December 2021, 70 150 applications
were pending before a judicial formation.
As of 31 December 2021, 70 150 applications
were pending before a judicial formation.44. In its report on the implementation of the Court judgments
(2020), the Assembly rapporteur Mr Constantinos Efstathiou (Cyprus,
SOC) had noted that Türkiye remained “the second country having
the highest number of non-implemented Court judgments and still
faces serious structural or complex problems, some of which have
not been resolved for over ten years. This might be due to deeply
rooted problems such as persistent prejudice against certain groups
in society, inadequate management at national level, lack of necessary
resources or political will or even open disagreement with the Court’s
judgment”. By the end of 2019, Türkiye
had 21 leading cases pending for more than 5 years under enhanced
supervision.
By the end of 2019, Türkiye
had 21 leading cases pending for more than 5 years under enhanced
supervision. 45. The Turkish authorities stressed that Türkiye had a high rate
of implementation of rulings of the Court (88%). They also disagreed
with what they see as double standards being applied, as other member
States have not executed their judgments for years either. They
specifically referred to three judgments of the Court against Greece regarding
the dissolution and the denial of registration of associations (bearing
the word “Turkish” in their names) established by persons belonging
to the Turkish community in Western Thrace. The authorities stressed
that, In these three cases, the Court found, in 2007 and 2008, a
violation of freedom of association guaranteed under Article 11
of the European Convention on Human Rights. Despite the fact that the
rulings were issued more than ten years ago, their implementation
by Greece is still pending.
regarding
the dissolution and the denial of registration of associations (bearing
the word “Turkish” in their names) established by persons belonging
to the Turkish community in Western Thrace. The authorities stressed
that, In these three cases, the Court found, in 2007 and 2008, a
violation of freedom of association guaranteed under Article 11
of the European Convention on Human Rights. Despite the fact that the
rulings were issued more than ten years ago, their implementation
by Greece is still pending. 46. However, we consider that the cases of Mr Demirtaş and Mr Kavala,
who are in detention since 2016 and 2017 respectively, are of a
different nature and are characteristic of the human rights situation
in general. These pre-trial detentions were unlawful due to the
lack of concrete evidence. At the same time, they concealed an ulterior
purpose (the Court found a violation of article 18 of the Convention),
thus very seriously undermining the functioning of a democratic
society: Mr Demirtaş’s detention sought to stifle pluralism and
limit freedom of political debate, while Mr Kavala’s detention was
aimed at silencing him and deterring other human rights defenders.
This has prompted the Assembly and its rapporteurs to repeatedly
call for their immediate release. These two cases have become
emblematic of deficiencies in Türkiye’s judicial system.
These two cases have become
emblematic of deficiencies in Türkiye’s judicial system.47. In one of the cases against Mr Demirtaş, the Constitutional
Court found on 20 July 2022 that Mr Demirtaş’ rights had been violated
when he was prosecuted for attending a demonstration in 2011 in
which slogans in support of the Kurdistan Workers' Party (PKK) were
chanted. The Court stated that Mr Demirtaş’ sole attendance to the
meetings did not automatically mean that he was the organiser or
manager of the meeting, nor that he was complicit in the activities
of those who acted against the law. The launch of such lawsuit could
not be legitimate in the first place (despite suspended legal proceedings
against him at that time) on the grounds that “some demonstrators
chanted slogans and unfurled the terror organization's [PKK] flag when
[Mr Demirtaş] was at the meeting”.
48. Looking at the latest statistics of the execution of the judgements
(March 2022), some additional criteria should be taken into account
to have an objective picture of Türkiye’s compliance with its obligations.
The situation differs with regard to the implementation of leading
cases (which require legislative and other measures from member
States to prevent the same violation taking place again and are
more difficult to close) and the implementation of repetitive cases:
following the new approach adopted by the Committee of Ministers in
2018 repetitive cases are closed when no individual measure is required
or can be taken (prosecution being time-barred for example). From
that perspective, while overall Türkiye closed 88% of all cases
(the country ranks 23rd among 47 member
States), 91 % of them were repetitive cases (at the 25th rank)
but only 63% were leading cases (39th among
47 States).
49. In addition, the dismissal of thousands of civil servants
(about 130 000) after the failed coup, for their alleged ties to
the Gülen movement, is expected to trigger numerous applications
to the Strasbourg Court. These civil servants were dismissed after
the coup on the basis of emergency decrees. They could challenge these
decisions before the Inquiry Commission on the State of Emergency
Measures (these challenges were, in a vast majority of cases, not
successful) and domestic courts, which has paved the way for the
exhaustion of domestic remedies. The European Court might have to
face numerous cases which could seriously hamper its functioning.
50. We have shared our views with the Turkish authorities and
stressed that the implementation of the Court’s judgments is at
the core of the protection of fundamental rights, and that these
judgements need to be respected by the authorities, including all
branches of the judiciary. As a positive example, we should recall
that the Court of Cassation decided to release renowned journalist
and novelist Ahmet Altan (who had been in jail since 2016) on 14
April 2021, the day after the European Court Chamber found, in two
rulings, that the rights to freedom of expression, liberty and security
of Ahmet Altan and Murat Aksoy had been violated due to lack of
evidence, lack of reasonable suspicion and lack of access to their
files. We
also note that, in the wake of the Kavala case, the opposition has
called for the implementation of the Court judgements.
We
also note that, in the wake of the Kavala case, the opposition has
called for the implementation of the Court judgements. 3.2. The case of philanthropist Osman Kavala: ruling of the European Court of Human Rights, infringement procedure and domestic procedure
3.2.1. Background information about the case of Mr Kavala and his co-defendants in the context of the Gezi protests
51. The case of Mr Kavala and his
co-defendants originates in the Gezi protests that took place in
2013. Millions of people demonstrated for weeks in the streets,
initially against an urban development plan affecting the Gezi Park
on Taksim square, then against a wide range of concerns, including
freedom of the press, of expression and of assembly. Some demonstrations
turned violent, with disproportionate use of force by the police.
11 people were killed, and thousands injured. In July 2013, 26 people
– including Mücella Yapıcı from the Chamber of Architects and Ali
Çerkezoğlu from the İstanbul Medical Chamber – were arrested, and
later acquitted. In March 2014, however, they faced a lawsuit for
“founding and leading an organisation” (of protests). The complainant
aggrieved parties in this case were the members of the 61st term
cabinet formed in 2011.
52. Philanthropist Osman Kavala was arrested in 2017 and detained.
He was charged, in 2019, for allegedly organising and financing
the 2013 Gezi protests (based on article 309 of the Criminal Code,
attempt to overthrow the government). The 657-page indictment defined
the Gezi protesters “an insurrection for coup”, while the defendants
were accused of “organising and funding the protests”, charged with
“attempting to overthrow the government”, “damaging property”, “damaging
places of worship and cemeteries”, “violating the Law on Firearms,
Knives and Other Tools”, “aggravated plunder” and “violating the
Law on Protecting Cultural and Natural Assets.”
53. On 18 February 2020, all defendants (except those who were
abroad) were acquitted of all charges (based on article 312 related
to the Gezi events). Mr Kavala was released, but immediately re-arrested
after the Istanbul Chief Public Prosecutor's Office issued, on the
same day, a detention warrant on charges of espionage this time
(article 309 of the Criminal Code) as part of an investigation into
the failed coup attempt in July 2016. The İstanbul 8th Penal Judgeship
of Peace remanded him in custody on 19 February 2020. On 23 January
2021, the court of appeal overturned the verdicts of acquittal in
the Gezi trial, explaining that pieces of evidence such as the defendants'
social media posts, press statements and slogans chanted had not
been considered in handing down the ruling.
54. As a consequence, a retrial was organised. On 25 April 2022,
the 13th High Criminal court sentenced Osman
Kavala to an aggravated life sentence, without parole, for financing
the Gezi protest. He was acquitted on the charge of espionage. Seven
of his co-defendants – namely Mücella Yapıcı, Çiğdem Mater, Mine Özerden,
Ali Hakan Altınay, Can Atalay, Tayfun Kahraman and Yiğit Ekmekçi
– were sentenced to 18 years of prison for “attempting to overthrow
the government by force” in connection with the Gezi Park anti-government protests
in 2013, and imprisoned in the Silivri and Bakirkoy prisons in Istanbul.
On 10 May 2022, the Istanbul 14th High Criminal Court unanimously
rejected the co-defendants’ objections against their detention and
found that there were no flaws – either on legal or procedural grounds
– in the ruling of 25 April 2022. These
co-defendants are all renowned architects, intellectuals, prominent
activists of the civil society, not politicians. One of the co-defendants,
Ali Hakan Altınay is the Director of the Council of Europe School
of Political Studies of Istanbul, which was created in 2014 under
the auspices of the Council of Europe. His conviction and detention is
therefore even more shocking.
These
co-defendants are all renowned architects, intellectuals, prominent
activists of the civil society, not politicians. One of the co-defendants,
Ali Hakan Altınay is the Director of the Council of Europe School
of Political Studies of Istanbul, which was created in 2014 under
the auspices of the Council of Europe. His conviction and detention is
therefore even more shocking.3.2.2. Infringement procedure: background information and state of play
55. Osman Kavala seized the European
Court of Human Rights in 2018. In its ruling of 10 December 2019 (final
in May 2020), the Court found that this arrest and pre-trial detention
took place in the absence of evidence to support a reasonable suspicion
he had committed an offence (violation of Article 5.1 of the Convention)
and that it pursued an ulterior purpose, namely to silence him and
dissuade other human rights defenders (violation of Article 18 taken
in conjunction with Article 5.1). The Court in addition held that
the length of time taken by the Constitutional Court to review the
applicant’s complaint about his detention (one year, four months
and 24 days) was insufficiently “speedy”, given that his personal
liberty was at stake (violation of Article 5.4).
56. On 1st September 2021, a court
decided to prolong the detention of Mr Kavala despite six decisions
and an interim resolution from the Committee of Ministers calling
for his release, which the Commissioner for Human Rights, Dunja
Mijatovic, saw as showing contempt for human rights and the rule
of law.
57. On 2 February 2022, the Committee of Ministers of the Council
of Europe decided to bring infringement proceedings against Türkiye
over its failure to implement the European Court of Human Rights
ruling on Kavala and referred the case to the European Court of
Human Rights. The decision of the Committee of Ministers to trigger
the infringement procedure is rare – it was only used once, in the
case of Ilgar Mamadov, who was, however, released during the procedure
– and reflects how serious this case has become.
58. During our regular fact-finding visit to Türkiye in March
2022, we discussed the implementation of the Kavala ruling with
several interlocutors. The officials were of the opinion that the
Court ruling had been implemented (as Mr Kavala had been released
in February 2020). However, there was a certain consensus or understanding
that a solution, meeting the legal requirements, needed to be found
in order to solve this case within the Turkish judicial system in
order to avoid a painful infringement procedure.
59. The decision of 25 April 2022 by the 13th High
criminal court to sentence Mr Kavala to life imprisonment, therefore
came as a shock; the Assembly President Tiny Kox, called for the
immediate release of Mr Kavala. The verdict of 18 years in prison
handed down to Mr Kavala’s co-defendants and their immediate detention was
also shocking. As a consequence, the Monitoring Committee decided
on the following morning to postpone its meeting which was scheduled
to take place in Ankara on 23-24 May 2022 and asked the rapporteurs
for the monitoring of Türkiye to carry out a visit to the country
and to report back to the committee at its next meeting on the developments
in this case.
The verdict of 18 years in prison
handed down to Mr Kavala’s co-defendants and their immediate detention was
also shocking. As a consequence, the Monitoring Committee decided
on the following morning to postpone its meeting which was scheduled
to take place in Ankara on 23-24 May 2022 and asked the rapporteurs
for the monitoring of Türkiye to carry out a visit to the country
and to report back to the committee at its next meeting on the developments
in this case.60. During our ad hoc visit
to Istanbul and Ankara from 18 to 20 May 2022, we met the lawyers
of Mr Kavala and his co-defendants, his family members, as well
the Vice-minister of justice. We regret that we were not able to
go to the Silivri prison to meet Mr Kavala and hear his views. We
expressed our dismay at the aggravated life sentence given to him
on 25 April 2022, which blatantly defies the 2019 ruling of the
European Court of Human Rights. The authorities argued that the
ruling had been implemented, as Mr Kavala had been released (on
19 February 2020). However, having heard the legal arguments on
both sides, we find it difficult to subscribe to this narrative:
it seemed clear to us that the same evidence deemed insufficient
by the European Court to justify even a pre-trial detention had
nevertheless been used in the second case as the basis for the harshest
possible sentence at first instance level. This amounted to a clear
disregard for the findings of the European Court of Human Rights;
the Court’s judgment also applied to the subsequent indictment on
the basis of which he was re-arrested. At the same time, we also
noted that there were no complaints about prison conditions.
61. On 2 February 2022, the Committee of Ministers referred the
case to the European Court of Human Rights to assess whether the
ruling in the Kavala case has been implemented or not. On 11 July
2022, the European Court of Human Rights issued its second judgment
in the Kavala case, ruling that “Türkiye has failed to fulfil its
obligation under Article 46.1 [binding force and execution of judgments]
to comply with the judgment delivered on 10 December 2019, which
called on the Government to end the applicant’s detention and secure his
immediate release. The Court stressed that “with regard to this
new charge of military or political espionage (Article 328 of the
Criminal Code), it appeared from the order of 9 March 2020 returning
Mr Kavala to pre-trial detention and the bill of indictment of 28
September 2020 that the espionage suspicions
had been based on facts that were similar, or even identical, to
those that the Court had already examined in the Kavala judgment. The
Court therefore concluded that neither
the decisions on Mr Kavala’s detention nor the bill of indictment contained
any substantially new facts capable of justifying this new suspicion.
As during Mr Kavala’s initial detention, the investigating authorities
had once again referred to numerous acts which were carried out entirely
lawfully to justify his continued pre-trial detention, notwithstanding
the constitutional guarantees against arbitrary detention.” (emphasis
added).
62. The Court noted that Türkiye had taken some steps towards
executing the Chamber judgment of 10 December 2019 and had also
presented several Action Plans. It noted, however, that on the date
on which the Committee of Ministers had referred the matter to it,
and in spite of three decisions ordering his release on bail and
one acquittal judgment, Mr Kavala had still been held in pre-trial
detention for more than four years, three months and fourteen days.
The Court considered that the measures indicated by Türkiye did
not permit it to conclude that the State Party had acted in “good
faith”, in a manner compatible with the “conclusions and spirit”
of the Kavala judgment, or in a way that would have made practical
and effective the protection of the Convention rights which the
Court had found to have been violated in that judgment.”
63. In a joint statement delivered on the same day, Ireland’s
Minister for Foreign Affairs and Chair of the Council of Europe’s
Committee of Ministers, Simon Coveney, the Assembly President Tiny
Kox, and the Secretary General of the Council of Europe, Marija
Pejčinović Burić, welcomed this judgment which clarified the question
of the implementation of the Kavala judgement, renewed their call
for the immediate release of Mr Kavala and urged Türkiye, as a Party
to the Convention, “to take all necessary steps to implement the judgment”.
64. Mr Kavala believed that this decision would “give strength
to those members of the Turkish judiciary who continue to act in
accordance with the rule of law despite political pressures.”
65. The Turkish authorities however disregarded this ruling and
considered the European Court of Human Rights had acted “as if it
was a court of first instance by disregarding the ongoing domestic
proceedings and did not assess the matter on a fair basis. Thus,
the Court once again called into question the credibility of the European
human rights system”. They also stressed that Mr Kavala’s conviction
of 25 April 2022 is not final and is currently under judicial review;
independent domestic legal proceedings should be respected and any acts
that could interfere with it must be avoided.
66. Until the judgment is final, these individuals remain detainees
and have not been finally convicted. The defendants were awaiting
the reasoned judgement of the court to appeal (regional court of
appeal, Court of Cassation, and possible application to the Constitutional
Court). We stressed that the solution to the Kavala case lies in
the hands of the Turkish judicial system, which has the capacity
to find a legal solution which complies with the ruling of the European
Court of Human Rights – in compliance with international law and reached
without political pressure or undue interference. We also expressed
our hope that higher courts will show a more diligent interpretation
of the European Court judgement. In
the meanwhile, we will follow the work of the Committee of Ministers.
In
the meanwhile, we will follow the work of the Committee of Ministers.67. Likewise, we will closely follow the cases of Mr Kavala’s
co-defendants who were sentenced to 18 years of prison in relation
to Mr Kavala’s case. Three of his co-defendants – Tayfun Kahraman,
Mücella Yapıcı and Can Atalay – had applied to the Constitutional
Court. On 18 August 2022, the Court ruled that the applicants' right
to freedom of expression, right to hold demonstration and freedom
of organisation had not been violated, saying that the applicants’
arguments were “manifestly ill-founded.” The applicants’ lawyers
challenged the lawfulness of the decision, as it has been signed
by İrfan Fidan (who had prosecuted several important cases including
the Gezi Park trial itself) and Selahaddin Menteş (a former undersecretary
of the Justice Ministry).
3.3. The case of Selahattin Demirtaş
68. The Assembly has also followed
the case of former HDP co-chair Selahattin Demirtaş, who has been
in prison since 2016 on terror-related charges. In December 2020 ,
the Grand Chamber ruled that Mr Demirtaş was detained in the absence
of evidence to support a reasonable suspicion he had committed an
offence (violation of Article 5.1 and 5.3) and that his arrest and
pre-trial detention pursued an ulterior purpose, namely, to stifle
pluralism and limit the freedom of political debate (violation of
Article 18 taken in conjunction with Article 5).
,
the Grand Chamber ruled that Mr Demirtaş was detained in the absence
of evidence to support a reasonable suspicion he had committed an
offence (violation of Article 5.1 and 5.3) and that his arrest and
pre-trial detention pursued an ulterior purpose, namely, to stifle
pluralism and limit the freedom of political debate (violation of
Article 18 taken in conjunction with Article 5).69. In March 2022, the Committee of Ministers recalled that the
Court had held that Türkiye had to take all necessary measures to
secure the applicant’s immediate release, but also had to perform
its role under Article 46.2 of the Convention with due regard to
the applicant’s evolving situation. In this context, it took note
“of the new evidence and allegations referred to by the authorities
and relied on by the domestic court to maintain the applicant in
detention on the grounds that this new evidence and allegations
were in substance different from those examined by the Court in
its judgment; considered in these circumstances that further information
on this issue is needed before the Committee can make its decisive
assessment on the individual measures required to remedy the violations
found by the Court; encouraged the authorities to take all possible
steps to ensure that the Constitutional Court makes its determination concerning
the applicant’s ongoing detention in the shortest possible timeframe
and with full regard to the Court’s findings in this case, particularly
its reasoning under Article 18 of the Convention.”
70. In June 2022, in light of the “new evidence and allegations
referred to by the authorities”, the Committee of Ministers required
further information before it could make its “decisive assessment
on the individual measures required to remedy the violations found
by the Court” and reiterated its requests concerning the examination
of Mr Demirtaş’ complaint by the Constitutional Court “without further
delay and in a manner compatible with the spirit and conclusions
of the Court’s judgment, including in particular its reasoning under Article
18 of the Convention”. The Committee of Ministers also urged the
authorities to take “effective measures to strengthen the structural
independence of the Council of Judges and Prosecutors to ensure the
full independence of the judiciary, in particular from the executive
branch, taking inspiration from the relevant Council of Europe standards”
and to adopt “concrete legislative and other measures capable of
strengthening freedom of political debate, pluralism, and the freedom
of expression of elected representatives, especially of members
of the opposition”. Notwithstanding
the current discussions in the Committee of Ministers, we believe
that Mr Demirtaş should be released.
Notwithstanding
the current discussions in the Committee of Ministers, we believe
that Mr Demirtaş should be released.3.4. Implementation of the court rulings concerning parliamentary immunity
71. The Court has also ruled in
Demirtaş’ case that the lifting of the applicant’s parliamentary
immunity and the way the criminal law was applied so as to penalise
him for political speeches were not foreseeable and prescribed by
law (Article 10) and that his consequent detention made it effectively
impossible for him to take part in the activities of the National
Assembly (Article 3 of Protocol to the Convention, ETS No. 9). This issue refers to the
lifting of the immunities of 139 deputies following the adoption
of a constitutional amendment on 20 May 2016, a decision criticised
by the Venice Commission and the Assembly. Previously, the Court
had ruled in a case concerning our former Assembly member, Filiz
Kerestecioğlu Demir, that the lifting of the applicant’s parliamentary
immunity violated her right to freedom of expression (Article 10).
This issue refers to the
lifting of the immunities of 139 deputies following the adoption
of a constitutional amendment on 20 May 2016, a decision criticised
by the Venice Commission and the Assembly. Previously, the Court
had ruled in a case concerning our former Assembly member, Filiz
Kerestecioğlu Demir, that the lifting of the applicant’s parliamentary
immunity violated her right to freedom of expression (Article 10). 72. In February 2022, the Court issued another important ruling,
concerning the lifting of the parliamentary immunities of 40 HDP
MPs, confirming
that Article 10 (freedom of expression) had been violated in the
cases of these MPs whose parliamentary immunities had been lifted,
leading to criminal proceedings being brought against them. 14 were
remanded in custody.
confirming
that Article 10 (freedom of expression) had been violated in the
cases of these MPs whose parliamentary immunities had been lifted,
leading to criminal proceedings being brought against them. 14 were
remanded in custody.73. We hope that the Turkish authorities will implement these
rulings and redress the consequences of the violations of the Convention,
which have had a major impact on Türkiye’s political life.
3.5. Implementation of rulings concerning freedom of expression and provisions of the Criminal Code
74. Another area that needs to
be looked into concerns the rulings delivered by the European Court
of Human Rights with respect to freedom of expression. This issue
has been a recurring source of concern and was raised by the Assembly
in various resolutions denouncing the restrictions suffered by politicians
and, more generally, those expressing dissenting opinions. Prosecution
and convictions were often based on provisions of the Criminal Code
which were deemed problematic by the Venice Commission, as well as by the overly broad interpretation
of the Anti-Terrorism Law. The Committee of Ministers, which is
supervising many of these cases, strongly urged the authorities,
in March 2022, to “once again, amend Article 301 of the Criminal
Code in light of the Court’s clear case law and “consider further
legislative changes of the Criminal Code and the Anti-Terrorism
Law, such as extending the 2019 amendment of Article 7 of the Anti-Terrorism
law to other provisions, to clarify that the exercise of the right
to freedom of expression does not constitute an offence”.
as well as by the overly broad interpretation
of the Anti-Terrorism Law. The Committee of Ministers, which is
supervising many of these cases, strongly urged the authorities,
in March 2022, to “once again, amend Article 301 of the Criminal
Code in light of the Court’s clear case law and “consider further
legislative changes of the Criminal Code and the Anti-Terrorism
Law, such as extending the 2019 amendment of Article 7 of the Anti-Terrorism
law to other provisions, to clarify that the exercise of the right
to freedom of expression does not constitute an offence”. 75. The Committee of Ministers also urged the Turkish authorities,
“in view of the worrying numbers of prosecutions and convictions
under Articles 125 and 299 of the Criminal Code and the emerging European consensus towards decriminalisation
of defamation of the Head of State” (our emphasis) to
“consider amending Article 125 and abrogating Article 299 in accordance
with the Court’s case law”.
76. Ensuring the implementation of the Court’s rulings is an important
push factor for the upgrading of the standards of the country, and
possibly for the restoration of rights which were violated. The
decision of Türkiye not to comply with the Kavala and Demirtaş rulings
has sent a very negative signal. It undermines the effectiveness
of the system of protection of fundamental rights and the credibility
of the Court, which would open the way to a dangerous and detrimental
trend for other Council of Europe member States.
4. Preparation of the 2023 presidential and parliamentary elections
77. Presidential and parliamentary
elections will be held in 2023, in a year when the Republic of Türkiye
will celebrate its 100th anniversary.
It is important that these elections be held in free and fair conditions.
In previous election observation mission reports, the Assembly praised
the high turnout in elections (over 80%) – which is part of Türkiye’s
history of democracy and State tradition and demonstrates Turkish
people’s commitment to democracy and their trust in the electoral
system – and a vibrant political scene, but also pinpointed several problematic
issues mainly pertaining to the fairness of the electoral process,
which begins well before election day. Therefore, in April 2021,
the Assembly asked the Turkish authorities “to take into account
the need to ensure fair electoral processes, conducted in an environment
conducive to freedom of expression and freedom of the media” when
revising the electoral legislation. This section of the report intends
to look at issues that we consider as having a meaningful effect
on the fairness of the electoral process. The issues addressed here
are not exhaustive but refer to the concerns previously identified
by the Assembly.
4.1. Recent political developments
78. In recent years, new parties
have emerged and a coalition formed. The AK Party and the MHP formed a
ruling coalition in parliament following the 2018 elections.
79. Six opposition parties namely: the Republican People's Party
(CHP), İYİ (Good) Party, the Felicity Party (SP), the Democrat Party
(DP), the Future Party (founded on 12 December 2019 by Ahmet Davutoğlu, former Minister of
Foreign Affairs and Prime Minister) and the Democracy and Progress
Party (DEVA Party, founded on 9 March 2020 under the leadership
of Ali Babacan, a former Minister of Economy under the AKP) have
agreed to join forces.
80. On 28 February 2022, they signed a “Memorandum of Understanding
on Reinforced Parliamentary System”, committing themselves to re-establish
the parliamentary system which was in place from 1923 until 2017.
They envisage reducing the election threshold to 3%, reinforcing
the supervisory role of the parliament, reducing the quorum in parliamentary
investigations, limiting presidential terms to one term of seven
years, restoring judicial independence, abolishing the Council of
judges and prosecutors (and replacing it with two distinct bodies),
improving individual rights and freedoms (ending the pressure on
freedom of expression, meetings and demonstrations, and association),
abolishing the Higher Education Council, revising the legislation
pertaining to donations made to political parties and candidates,
etc. They intend to present a joint candidate at the presidential
election. Since February 2022 the six parties have declared a common
roadmap regarding the steps they will take to push for a fair and
free election and restructure the State institutions upon their
election into power.
4.2. Crackdown on the opposition
81. The last reports debated under
urgent procedure related to the crackdown on members of the political opposition.
The Assembly expressed concern about the procedures seeking to lift
the parliamentary immunity of one third of the parliamentarians
(overwhelmingly from opposition parties), the attempt to close the
HDP and the banning of 451 HDP politicians from political life,
the continued crackdown on its members and more generally the political
violence targeting opposition politicians which has put political
pluralism and the functioning of democratic institutions at risk.
In its Resolution 2376
(2021) of 22 April 2021, the Assembly called on the Turkish
authorities to reverse these worrying trends, seize the opportunity
of implementing the Action Plan on Human Rights released on 2 March
2021 to take meaningful steps to revise the legislation on elections and
political parties, put an end to the judicial harassment of opposition
and dissenting voices, improve freedom of expression and of the
media and to restore the independence of the judiciary, in line
with Council of Europe standards.
82. Recently, Türkiye’s Constitutional Court took position on
some of these cases. In July 2022, it ruled that former HDP co-chair
Figen Yüksekdağ’s rights had been violated when she was stripped
of her parliamentary immunity in 2016, in breach of her rights to
freedom of thought and expression, as well as to be elected. The Constitutional
Court ordered the State to pay her 30 000 Turkish liras in compensation.
83. The case against Canan Kaftancıoğlu, Head of the CHP provincial
branch of Istanbul, is another example of judicial harassment against
members of the opposition – and in this case, against a prominent female
politician who had managed a successful electoral campaign in 2019,
leading to Ekrem İmamoğlu becoming Mayor of Istanbul. We were dismayed
by the decision of the Court of Cassation of Türkiye, which upheld
most of the sentences against her and convicted her to nearly 5
years in prison and a ban on participating in political life. This
punishment, based on old tweets, for, namely allegedly “insulting
the President”, was yet another blow to Türkiye's democracy and
its vibrant political scene, and is all the more worrying in the
run-up to the general elections scheduled for 2023. It showed, once
again, how urgent it is to revise those controversial provisions
of the Criminal Code which are contrary to European standards and
which lead to abusive judicial procedures. Due to the law on the
execution of sentences, Ms Kaftancıoğlu went to the Silivri prison
on 31 May 2022. However, she was released under supervision on the
same day. Nevertheless, she remains subject to a political ban,
which will bar her from running for elected positions and from participating
in elected assemblies. This is a very worrying development.
This
punishment, based on old tweets, for, namely allegedly “insulting
the President”, was yet another blow to Türkiye's democracy and
its vibrant political scene, and is all the more worrying in the
run-up to the general elections scheduled for 2023. It showed, once
again, how urgent it is to revise those controversial provisions
of the Criminal Code which are contrary to European standards and
which lead to abusive judicial procedures. Due to the law on the
execution of sentences, Ms Kaftancıoğlu went to the Silivri prison
on 31 May 2022. However, she was released under supervision on the
same day. Nevertheless, she remains subject to a political ban,
which will bar her from running for elected positions and from participating
in elected assemblies. This is a very worrying development.84. Turkish political life has also been marked by acts of political
violence, which have resulted in dramatic casualties. We cannot
but deplore the assassination of the young party activist, Deniz
Poyraz, in Izmir on 17 June 2021: she was shot by an assailant who
attacked the HDP office in İzmir despite police protection in front
of the building; on
14 July 2021, an assailant with a shotgun attacked another HDP office
in the Marmaris district and fired more than 100 bullets; in August
2021, the head of the Good party in Istanbul was attacked, to mention just
a few cases. We are also concerned about a series of deadly attacks
against Kurdish families which took place this summer (including
the assassination of a family of seven in the province of Konya,
who were seemingly attacked by members of the “grey wolves”, an
ultranationalist organisation reportedly close to the MHP). These
acts, again, require thorough investigation and punishment of perpetrators.
on
14 July 2021, an assailant with a shotgun attacked another HDP office
in the Marmaris district and fired more than 100 bullets; in August
2021, the head of the Good party in Istanbul was attacked, to mention just
a few cases. We are also concerned about a series of deadly attacks
against Kurdish families which took place this summer (including
the assassination of a family of seven in the province of Konya,
who were seemingly attacked by members of the “grey wolves”, an
ultranationalist organisation reportedly close to the MHP). These
acts, again, require thorough investigation and punishment of perpetrators. 85. Previous Assembly reports have referred to the detention of
thousands of HDP members since 2015. One of the major ongoing legal
cases is the “Kobanî trial” over the incidents and protests that
happened on 6-8 October 2014 and which claimed at least 43 lives.
The court has handed down its interim ruling against 108 politicians.
22 were arrested, including the former Co-Chairs of the HDP and
the former members of its Central Executive Board. The HDP has denounced
many procedural deficiencies in this trial and
recalled that the Grand Chamber of the European Court of Human Rights
did already review these Twitter messages in detail (which are part
of the evidence used in the HDP closure case, see below). The Court
concluded, in its judgment of December 2020, that “these calls remained
within the limits of political speech, in so far as they cannot
be construed as a call for violence. The acts of violence that took
place between 6 and 8 October 2014, regrettable though they were,
cannot be seen as a direct consequence of the tweets in question
and cannot justify the applicant’s pre-trial detention in relation
to the offences in question”. We trust that the Constitutional
Court will take into account these conclusions of the European Court
of Human Rights in its ongoing closure case.
and
recalled that the Grand Chamber of the European Court of Human Rights
did already review these Twitter messages in detail (which are part
of the evidence used in the HDP closure case, see below). The Court
concluded, in its judgment of December 2020, that “these calls remained
within the limits of political speech, in so far as they cannot
be construed as a call for violence. The acts of violence that took
place between 6 and 8 October 2014, regrettable though they were,
cannot be seen as a direct consequence of the tweets in question
and cannot justify the applicant’s pre-trial detention in relation
to the offences in question”. We trust that the Constitutional
Court will take into account these conclusions of the European Court
of Human Rights in its ongoing closure case.86. Former MP Aysel Tuğluk was one of the politicians arrested
in the Kobanî case. She was sentenced on “terrorism charges” for
attending meetings and funerals as vice-chair of the defunct Democratic
Regions Party (DBP). Her prosecution however was postponed for three
years, during which time she remained in detention. She was eventually
sentenced to 10 years in prison. Ms Tuğluk’s health is today in
a critical condition, she suffers from early-onset dementia; her
requests to be released (or to have her sentence deferred) due to
her health condition have been rejected so far, despite a medical
report from the Forensic Medicine Institute in Kocaeli, later contradicted
by those of the Istanbul Forensic Medicine Institute.
87. Following her individual application, the Constitutional Court
ruled on 25 May 2022 that Ms Tuğluk’s detention, ensuing the decision
to postpone the prosecution, should be regarded as an interference
with and violation of her right to hold meetings and demonstration
marches, which is guaranteed in Article 34 of the Constitution.
This paves the way to a re-trial “in order to eliminate the consequences
of the violation”. Ms Tuğluk will be paid 13 500 Turkish liras of
non-pecuniary compensation”. The
decision of the Constitutional Court is welcomed and a swift re-trial,
in compliance with this decision, should be held, given Ms Tugluk’s
health condition. The HDP noted for its part that, at the same time,
the Constitutional Court recently rejected an application by Ms Tuğluk
against her arrest in the Kobanî investigation without examining the
case "on the merits."
The
decision of the Constitutional Court is welcomed and a swift re-trial,
in compliance with this decision, should be held, given Ms Tugluk’s
health condition. The HDP noted for its part that, at the same time,
the Constitutional Court recently rejected an application by Ms Tuğluk
against her arrest in the Kobanî investigation without examining the
case "on the merits."88. The crackdown on the opposition has also taken place at local
level, and the situation of dismissed mayors remains unaddressed.
The Minister of interior has justified these moves by the [alleged]
ties of the mayors with a terrorist organisation. Over 150 elected mayors had been
dismissed and replaced with appointed governors in HDP-run municipalities
since 2016. The HDP informed us that many of these mayors have been
imprisoned, some released later, and many others had to leave the
country and are currently living in European countries as refugees
or asylum seekers. Currently, 22 mayors elected in 2014 and 7 mayors elected
in 2019 are still behind bars. The Congress
of local and regional authorities of the Council of Europe in its
last report deplored that the government continued to suspend mayors
when a criminal investigation is opened against them – based on
an overly-broad definition of terrorism – and replaces them with
non-elected officials. Unfortunately,
there are no signs of progress in this area and the Assembly will
continue to closely follow this situation and the functioning of
democratic institutions at local level, which is an essential part
of a democratic system.
Over 150 elected mayors had been
dismissed and replaced with appointed governors in HDP-run municipalities
since 2016. The HDP informed us that many of these mayors have been
imprisoned, some released later, and many others had to leave the
country and are currently living in European countries as refugees
or asylum seekers. Currently, 22 mayors elected in 2014 and 7 mayors elected
in 2019 are still behind bars. The Congress
of local and regional authorities of the Council of Europe in its
last report deplored that the government continued to suspend mayors
when a criminal investigation is opened against them – based on
an overly-broad definition of terrorism – and replaces them with
non-elected officials. Unfortunately,
there are no signs of progress in this area and the Assembly will
continue to closely follow this situation and the functioning of
democratic institutions at local level, which is an essential part
of a democratic system.4.3. Attempt to close the Peoples' Democratic Party (HDP)
89. In March 2021, the Chief Prosecutor
of the Court of Cassation sent his indictment to the Constitutional Court
seeking the closure of the HDP and the banning of 687 HDP members
for their alleged ties to the PKK. On 31 March, the Constitutional
Court returned the indictment to the Court of Cassation over “procedural deficiencies
and omissions”.
90. On 7 June 2021, the Court of Cassation re-submitted the indictment
to the Constitutional Court, which accepted it on 21 June 2021. The indictment seeks the HDP's closure,
a political ban on 451 HDP politicians and a cautionary judgement
on the party's bank account. The case is currently pending at the
Constitutional Court. The timing of the issuance of its decision
will be crucial in view of the electoral calendar and the need for
political parties to get organised before the next elections, taking
into account the latest electoral amendments adopted (see below).
The indictment seeks the HDP's closure,
a political ban on 451 HDP politicians and a cautionary judgement
on the party's bank account. The case is currently pending at the
Constitutional Court. The timing of the issuance of its decision
will be crucial in view of the electoral calendar and the need for
political parties to get organised before the next elections, taking
into account the latest electoral amendments adopted (see below).91. In its Resolution
2376 (2021), the Assembly recalled that “political parties enjoy
the freedoms and rights enshrined in Article 11 (freedom of assembly
and association) and Article 10 (freedom of expression) of the European
Convention on Human Rights. Dissolution of political parties is
a drastic measure which should only occur as a last resort. The
Assembly remains confident that the Constitutional Court will be
guided by the strict regulations governing the dissolution of political
parties in Turkey, the case law of the European Court of Human Rights
– in which the exceptions set out in Article 11 are strictly construed,
with a limited margin of appreciation for contracting States – and
by the “Guidelines on prohibition and dissolution of political parties and
analogous measures” adopted in 1999 by the Venice Commission. Since
1993, six pro-Kurdish political parties were dissolved and outlawed,
on the same terrorism-related charges. As already highlighted in
the Assembly previous report on the functioning of democratic institutions,
except in one case (concerning the prohibition of the Refah Party),
the European Court of Human Rights had found a violation of article
11 of the Convention (freedom of assembly and association) in all
these cases related to the closure of Turkish political parties.
92. It added that “whatever the outcome of this pending procedure,
the Assembly underscores that the initiation of legal proceedings
against the second largest opposition party, combined with continuous harassment
and arrests of its members, elected representatives and leaders,
is in itself an alarming signal [...] which seriously undermines
the functioning of democratic institutions and political pluralism
at national and local levels”.
4.4. Recent changes in the electoral framework
93. Under the presidential system,
as explained by the Venice Commission, there is a 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 grounds (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 the eligibility for
his/her third mandate. The Venice Commission 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”.
94. The election law proposed by the AKP and the MHP and adopted
on 16 March 2018 gave political parties the possibility to form
pre-election coalitions, a novelty in the Turkish election system,
leading the AKP and the MHP to form a coalition for the parliamentary
elections. Shortcomings identified by the Assembly observers in recent
years in the field of media coverage, blurring of State and party
resources or funding of political parties remain unaddressed. In this respect GRECO urged for
more progress on the issue of transparency of party funding and
stated its disappointment at the very low level of progress achieved;
it regretted that, over the past 10 years, only one recommendation
out of nine had been fully implemented. GRECO urged the Turkish authorities
to give new impetus to their legislative efforts towards increased
transparency of political financing, including in connection with
elections, in accordance with GRECO’s recommendations. A Draft Bill
on the Amendment of Certain Laws for the Purpose of Ensuring Transparency
in the Financing of Elections had for example been prepared in 2014
but never made it to the parliament’s agenda, said GRECO.
In this respect GRECO urged for
more progress on the issue of transparency of party funding and
stated its disappointment at the very low level of progress achieved;
it regretted that, over the past 10 years, only one recommendation
out of nine had been fully implemented. GRECO urged the Turkish authorities
to give new impetus to their legislative efforts towards increased
transparency of political financing, including in connection with
elections, in accordance with GRECO’s recommendations. A Draft Bill
on the Amendment of Certain Laws for the Purpose of Ensuring Transparency
in the Financing of Elections had for example been prepared in 2014
but never made it to the parliament’s agenda, said GRECO.95. On 26 April 2022, the parliament adopted amendments to the
electoral law. They lowered the electoral threshold from 10% to
7% which is to be welcomed, as Türkiye has had the highest threshold
in Europe for years. This has been repeatedly criticised by the
Assembly. The electoral amendments also included provisions related
to the allocation of seats within coalitions, to changes in the
composition of the district electoral board or to eligibility criteria
established for political parties to compete in elections. In
view of the technicality of these changes, the monitoring committee
requested an opinion from the Venice Commission, which adopted its
Joint opinion on 17-18 June 2022.
In
view of the technicality of these changes, the monitoring committee
requested an opinion from the Venice Commission, which adopted its
Joint opinion on 17-18 June 2022. 96. The Venice Commission and ODHIR noted that these amendments
– which were expected after the transition from the parliamentary
to the presidential system of government – were adopted “within
a few weeks in a process that was not fully inclusive as the involvement
of the opposition was limited and civil society was excluded from
the process”. The Law therefore “does not represent a political
consensus. Interlocutors also noted a pattern of amending the electoral
legislation prior to each electoral cycle, without due procedural safeguards,
which could undermine the credibility of the electoral process and
the stability of the legal framework”.
97. The Venice Commission and ODIHR welcomed the decrease of the
election threshold from 10% to 7% (which, however, remains among
the highest in Europe even after its decrease) as well as a new
arrangement facilitating the participation of visually impaired
persons in elections, thus addressing previous opinions and ODIHR
election observation reports. Turkish authorities are encouraged
“to consider, after an extensive public debate, the possibility
of decreasing the threshold even further”.
98. Concerning the issue of seat allocation, which had been discussed
during our visit in Türkiye in March 2022, the Venice Commission
explained that “Law No. 7393 has changed this system, replacing
the two-stage allocation with a single-stage
allocation, in which the seats are distributed among all parties
regardless of whether they are part of any electoral alliance, and
independent candidates using again the d’Hondt method. (…) The use
of a single-stage allocation, when combined with the high electoral
threshold, risks operating in clear disfavour of smaller parties
belonging to an electoral alliance, thus limiting the impact of
the creation of this alliance”.
with a single-stage
allocation, in which the seats are distributed among all parties
regardless of whether they are part of any electoral alliance, and
independent candidates using again the d’Hondt method. (…) The use
of a single-stage allocation, when combined with the high electoral
threshold, risks operating in clear disfavour of smaller parties
belonging to an electoral alliance, thus limiting the impact of
the creation of this alliance”.99. The amendments now set one single requirement for political
parties in order to qualify to stand for elections, namely having set up their organisation
in at least half (41) of the provinces at least six months prior
to election day and having held party congresses; the Venice Commission
and ODIHR note that “the single condition favours larger and well-established
political parties, while on the contrary making it difficult for smaller
and newer parties to establish themselves and find their way to
the Parliament”. In addition, the law seems to require two party
congresses to have taken place at national, provincial and district
levels to allow a party to take part in the next parliamentary elections
to take place the year after the entry into force of the revised
legislation, which is “an excessive burden”. In addition, it would
make it “nearly impossible” for the members and supporters of the
HDP to establish a new political party, meet the single condition
foreseen and run in the upcoming 2023 elections, should the Constitutional
Court decide to dissolve the party. The Venice Commission therefore
recommended that the law “makes clear that it does not introduce
changes to the conditions for eligibility of political parties to
participate in the elections that de
facto are not possible to meet in the time between adoption
of the amendments and the next election and therefore potentially
make some parties ineligible.”
namely having set up their organisation
in at least half (41) of the provinces at least six months prior
to election day and having held party congresses; the Venice Commission
and ODIHR note that “the single condition favours larger and well-established
political parties, while on the contrary making it difficult for smaller
and newer parties to establish themselves and find their way to
the Parliament”. In addition, the law seems to require two party
congresses to have taken place at national, provincial and district
levels to allow a party to take part in the next parliamentary elections
to take place the year after the entry into force of the revised
legislation, which is “an excessive burden”. In addition, it would
make it “nearly impossible” for the members and supporters of the
HDP to establish a new political party, meet the single condition
foreseen and run in the upcoming 2023 elections, should the Constitutional
Court decide to dissolve the party. The Venice Commission therefore
recommended that the law “makes clear that it does not introduce
changes to the conditions for eligibility of political parties to
participate in the elections that de
facto are not possible to meet in the time between adoption
of the amendments and the next election and therefore potentially
make some parties ineligible.”100. The amendments revisit the composition of the district and
provincial electoral boards, which the representatives of the opposition
parties and of non-governmental organisations considered as the
most problematic part of the amendments (this triggered a complaint
by the CHP to the Constitutional Court to annul three of its articles,
including on the composition of election boards .):
“Prior to the amendments, the three most senior judges in the province
were automatically appointed as members of provincial boards, whereas the
most senior judge in a district was automatically appointed the
chair of the respective district-level board. The amendments have
replaced this seniority system with a lottery system, under which
judicial members of the boards shall be determined “by drawing lots”
from eligible judges”. The Venice Commission considers that “in
light of the limited safeguards in the judicial appointment system
to ensure the independence of judges, as underlined in prior Venice
Commission assessments, as well as of the large-scale dismissal
of judges that followed the attempted coup in 2016 and the deficiencies
in the administration of lottery procedures for selecting civil
servants for ballot box committees identified by the ODIHR election
observation mission in 2018, the newly established system does not
appear to improve the integrity of the election administration,
compared to its previous composition. The system’s foreseeability
has deteriorated, and potentially makes appointment more susceptible
to political pressure and manipulation.”
.):
“Prior to the amendments, the three most senior judges in the province
were automatically appointed as members of provincial boards, whereas the
most senior judge in a district was automatically appointed the
chair of the respective district-level board. The amendments have
replaced this seniority system with a lottery system, under which
judicial members of the boards shall be determined “by drawing lots”
from eligible judges”. The Venice Commission considers that “in
light of the limited safeguards in the judicial appointment system
to ensure the independence of judges, as underlined in prior Venice
Commission assessments, as well as of the large-scale dismissal
of judges that followed the attempted coup in 2016 and the deficiencies
in the administration of lottery procedures for selecting civil
servants for ballot box committees identified by the ODIHR election
observation mission in 2018, the newly established system does not
appear to improve the integrity of the election administration,
compared to its previous composition. The system’s foreseeability
has deteriorated, and potentially makes appointment more susceptible
to political pressure and manipulation.”101. Other changes concerned the voters registration and voters’
request for change of address: district electoral board chairpersons
become entitled to “reject a request for changing the registration
address from one constituency to another during the period of public
scrutiny, if they consider that the request to change the registration
is ‘suspicious’”. However, the law “does not detail what criteria
shall be applied towards such applications and what a “suspicious
application” may encompass, which might lead to arbitrary or inconsistent decisions”.
The Venice Commission and ODIHR therefore recommend amending the
law to make it more precise, though welcoming that “a rejected request
to change the address will not freeze the voter’s record, as was
previously the case, but the voters will retain their previous constituency
of registration”.
102. Finally, the amendments also deal with the legal provisions
concerning the misuse of office in election campaigns and deleted
references to the Prime Minister (whose position was abolished in
the presidential system) from Articles 65, 66 and 155 of Law No.
298. These provisions “impose restrictions on the participation in
electoral campaigns of ministers and public officials and foresee
sanctions for those who would disrespect such restrictions”. They
are meant to ensure that “all political parties and candidates can
benefit from equal opportunities and that some of them would not
be favoured by having public resources (official vehicles, official banquets;
welcoming and protocol meetings, etc.) used in their support.” The
Venice Commission and ODIHR recommend including the reference to
the President explicitly in Articles 65, 66 and 155 of Law No. 298,
as the President “does not stand outside the party system but, rather,
is part of it, there is no reason why s/he should not be subject
to the restrictions in the same ways as other high public officials
to prevent conflicts of interest and misuse of administrative resources”.
103. While we commend the authorities for decreasing the threshold
from 10 to 7% as a first step, we would appreciate to receive information
from the authorities concerning the swift implementation of the
above-listed recommendations of the Venice Commission in view of
the upcoming 2023 elections.
104. In accordance with Article 67 of the Constitution, «Amendments
to the electoral laws shall not apply to the elections to be held
within one year from the entry into force date of the amendments”.
President Erdogan announced on 8 June 2022 that the next presidential
and parliamentary elections would be held in June 2023, and that
he would be the presidential candidate of the People's Alliance
(of the AKP and the MHP).
4.5. Freedom of expression
4.5.1. Decriminalisation of defamation
105. The overuse of Article 299
of the Criminal Code (“Insult to the President”) is still a reality:
according to official figures, by the end of 2020, more than 160
000 people had been investigated for alleged insults against President
Erdoğan and more than 38 000 people have been tried in court for
the same reason since 2002 during Erdoğan’s time as Prime Minister
and then President. In 2020 alone, a
total of 946 522 criminal investigations were conducted under Article
125 of the Criminal Code, whereas 31 297 were conducted under Article
299. In view of the worrying numbers
of prosecutions and convictions under Articles 125 (insult to officials)
and 299 of the Criminal Code, the Committee of Ministers has urged
the authorities to consider amending Article 125 and abrogating
Article 299 in accordance with the Court’s case law”, noting that
there is an “emerging European consensus towards decriminalisation
of defamation of the Head of State”.
In 2020 alone, a
total of 946 522 criminal investigations were conducted under Article
125 of the Criminal Code, whereas 31 297 were conducted under Article
299. In view of the worrying numbers
of prosecutions and convictions under Articles 125 (insult to officials)
and 299 of the Criminal Code, the Committee of Ministers has urged
the authorities to consider amending Article 125 and abrogating
Article 299 in accordance with the Court’s case law”, noting that
there is an “emerging European consensus towards decriminalisation
of defamation of the Head of State”. 106. Several PACE resolutions have called for the decriminalisation
of defamation, and in particular Assembly Resolution 1577 (2007). The Venice Commission also confirmed in its 2016 opinion that this provision of the Criminal Code was contrary
to the Council of Europe standards.
107. On 19 October 2021, the European Court of Human Rights issued
for the first time a ruling concerning Article 299 of the Criminal
Code (“insult to the President”): in the case Vedat
Şorli v. Turkey, the Court
found that convicting the applicant to a prison sentence (the execution
of which was suspended) on account of two posts shared on his Facebook
account was a violation of his right to freedom of expression. The
Court considered that “by its very nature, such a sanction inevitably
has a dissuasive effect on the willingness of the person concerned
to speak out on matters of public interest, particularly given the
effects of the conviction”.
the Court
found that convicting the applicant to a prison sentence (the execution
of which was suspended) on account of two posts shared on his Facebook
account was a violation of his right to freedom of expression. The
Court considered that “by its very nature, such a sanction inevitably
has a dissuasive effect on the willingness of the person concerned
to speak out on matters of public interest, particularly given the
effects of the conviction”. 4.5.2. Fighting terrorism in compliance with human rights standards
108. Each country has a legitimate
right to fight terrorism. Türkiye is facing various and serious
terrorist threats in a region that is unstable. We understand that
this is a sensitive issue for the Turkish society. However,
the response to these threats must be in compliance with human rights
standards.
However,
the response to these threats must be in compliance with human rights
standards.109. The broad interpretation of the anti-terror legislation however
is a major problem that has been pinpointed, notably by the European
Court of Human Rights on many occasions. It has led to unlawful prosecutions
and unfounded sentences. The overly broad definition of terrorism
remains a matter of concern. The Assembly has repeatedly called
for restricting the use of the anti-terror law within the boundaries of
freedom of expression, including in its Resolution 2381 (2021) “Should politicians be prosecuted for statements made
in the exercise of their mandate?” . This has also impacted the functioning
of local democracy and justified the suspension of mayors with a
criminal investigation being opened against them and their replacement
with non-elected officials.
The overly broad definition of terrorism
remains a matter of concern. The Assembly has repeatedly called
for restricting the use of the anti-terror law within the boundaries of
freedom of expression, including in its Resolution 2381 (2021) “Should politicians be prosecuted for statements made
in the exercise of their mandate?” . This has also impacted the functioning
of local democracy and justified the suspension of mayors with a
criminal investigation being opened against them and their replacement
with non-elected officials. 110. The Committee of Ministers noted, as regards the Öner and
Türk group of cases, that “the problem of the disproportionate use
of the criminal and anti-terror law in Türkiye for expressing critical
or unpopular opinions has been pending before the Committee in relation
to various judgments for over 20 years”. In its 2021 Annual Report,
the Court indicated that it had found a total of 418 violations
of Article 10 of the Convention against Türkiye, 31 of them in 2021
alone. It also “strongly urged the authorities to consider further
legislative changes to the Criminal Code and the Anti-Terrorism
Law to clarify that the exercise of the right of freedom of expression
does not constitute an offence.
111. Some provisions of the Criminal Code are also problematic,
in particular Article 220.6 and 220.7 of the Criminal Code, which
provide that anyone who commits a crime on behalf of an illegal
organisation or who knowingly and willingly aids and abets an illegal
organisation shall be sentenced as a member of that organisation.
Based on these provisions, most of the applicants in this group
of cases were sentenced to several years of imprisonment for membership
in an illegal organisation for having, for example, peacefully participated
in a demonstration called for by an illegal organisation, or expressed
a positive opinion about such an organisation, without the prosecution
having to prove the elements of actual membership. The Court criticised
in particular the wording of the provisions and their extensive
interpretation by domestic courts which did not provide sufficient
protection against arbitrary interference by the public authorities
and therefore lacked predictability and had a chilling effect (violations
of Articles 10 and 11).
112. In October 2019, Türkiye amended Article 7 of the Anti-Terrorism
Law, so that it provided that “expressions of thought that do not
exceed the boundaries of reporting and those made for the purpose
of criticism shall not engage criminal activity”. This was considered
an improvement, that could limit the application of Article 7. As
a result, the Committee of Ministers also suggested that the authorities
“could be encouraged to consider extending this amendment to other
articles of the Anti-Terrorism Law and the Criminal Code which have
led to violations of the right to freedom of expression, to clarify
that the exercise of the right to freedom of expression does not
constitute an offence.” Extending
the 2019 amendment of Article 7 of the Anti-Terrorism Law to other
provisions, as recommended by the Committee of Ministers, would
also help to clarify that the exercise of right to freedom of expression
does not constitute an offence.
Extending
the 2019 amendment of Article 7 of the Anti-Terrorism Law to other
provisions, as recommended by the Committee of Ministers, would
also help to clarify that the exercise of right to freedom of expression
does not constitute an offence. 113. We also expressed the hope that the new Action Plan on Human
Rights would provide an opportunity to tackle some of these issues
– and bring some real changes in the practice of law. We were informed
that some of the changes that had been introduced in the Anti-terrorism
Law would also be included in the Criminal Code. A regulation of
the 4th Judicial Package should avoid the sentencing of “those who
make propaganda for the terrorist organisations, who print and publish
the leaflets or declarations of the terrorist organisations, and
those who participate in the illegal meetings and demonstration
marches” of being “members of a terrorist organisation”. It
is important to ensure that mere criticism is not treated as a criminal
or terror-related offense.
It
is important to ensure that mere criticism is not treated as a criminal
or terror-related offense.114. We regret that the provisions contained in the 2020 Law on
the Prevention of Financing of the Proliferation of Weapons of Mass
Destruction, providing for the possible temporary suspension of
NGO leaders facing terror-related investigations and their replacement
by government-appointed trustees, have not been repealed. The
law is pursuing a legitimate goal, by introducing effective measures
to combat terrorism, including measures against its financing, in
compliance with the recommendations of the Financial Action Task Force.
However, the Venice Commission found that some provisions of this
law go “beyond that scope, since the new provisions apply to all
associations, irrespective of their goals and records of activities,
and lead to far reaching consequences for basic human rights, in
particular the right to freedom of association and expression and
the right to a fair trial”. It also reminded the Turkish authorities
that even in such circumstances member States have to comply with
all their obligations under international law, in particular international
human rights law, international refugee law, and international humanitarian
law, while taking any steps to counter terrorism. Respect for human
rights and the rule of law are an essential part of any successful
counterterrorism effort”.
The
law is pursuing a legitimate goal, by introducing effective measures
to combat terrorism, including measures against its financing, in
compliance with the recommendations of the Financial Action Task Force.
However, the Venice Commission found that some provisions of this
law go “beyond that scope, since the new provisions apply to all
associations, irrespective of their goals and records of activities,
and lead to far reaching consequences for basic human rights, in
particular the right to freedom of association and expression and
the right to a fair trial”. It also reminded the Turkish authorities
that even in such circumstances member States have to comply with
all their obligations under international law, in particular international
human rights law, international refugee law, and international humanitarian
law, while taking any steps to counter terrorism. Respect for human
rights and the rule of law are an essential part of any successful
counterterrorism effort”. 115. Regrettably, the anti-terrorism motivation has also been used
as grounds to launch legal procedures against human rights defenders
and civil society activists. The Assembly has urged the authorities
to drop the cases against the Chair of the Human Rights Association,
Öztürk Türkdoğan, who was prosecuted on multiple charges, including
“membership of a terrorist organization” (article 314/2 of the Criminal
Code), for which he was eventually cleared. Other legal cases are ongoing.
Other legal cases are ongoing.116. Another disturbing case was the prosecution and conviction
of Taner Kılıç, Honorary Chair of the Turkish branch of the NGO
Amnesty International, who was arrested in June 2017 on suspicion
of belonging to the Gülen movement. He was released in August 2018. In
its Chamber’s ruling of 31 May 2022, the European Court found a
violation of Taner Kılıç’s rights to liberty and security (Article
5.1, 5.3 and 5.5) and freedom of expression (Article 10). The
Court did not find a violation of article 18, noting that “in the
context of its assessment of the applicant’s complaints under Article
10 of the Convention, [it] had taken sufficient account of the applicant’s
position as leader of an NGO and a human-rights defender.”
He was released in August 2018. In
its Chamber’s ruling of 31 May 2022, the European Court found a
violation of Taner Kılıç’s rights to liberty and security (Article
5.1, 5.3 and 5.5) and freedom of expression (Article 10). The
Court did not find a violation of article 18, noting that “in the
context of its assessment of the applicant’s complaints under Article
10 of the Convention, [it] had taken sufficient account of the applicant’s
position as leader of an NGO and a human-rights defender.” 117. Unfortunately, the misuse of anti-terrorism legislation and
its broad interpretation have undermined fundamental freedoms and
continue to be used as a tool to stifle political debate and the
activities of civil society.
4.6. Freedom of media
118. Freedom of media has been a
longstanding concern. During an electoral campaign, access to media and
media coverage is crucial to provide voters with pluralistic information.
Unfortunately, the last election observation reports issued by the
Assembly have highlighted serious problems in this context.
119. In the 2022 World Press Freedom Index of Reporters Without
Borders (RSF), Türkiye ranks 149th out of 180 countries (compared
to its rank 153 in 2021, and 157 in 2018). There is a slight improvement: Türkiye is
no longer the country which has the highest number of imprisoned
journalists, however the risk of imprisonment and the fear of being
subjected to judicial control or stripped of one’s passport is ever-present. RSF
noted “the ‘hyper-presidency’ of Recep Tayyip Erdoğan and his authoritarianism
accompanied by a denial of freedom of the press and interference
in the judicial system.” However, “some judges have recently come out
against ‘this repression that goes too far’: journalists have been
acquitted of abusive charges such as ‘insulting the president’,
‘belonging to a terrorist organization’, or ‘propaganda’. Judicial
review now takes precedence over the imprisonment of journalists”.
This is a trend to be welcomed.
There is a slight improvement: Türkiye is
no longer the country which has the highest number of imprisoned
journalists, however the risk of imprisonment and the fear of being
subjected to judicial control or stripped of one’s passport is ever-present. RSF
noted “the ‘hyper-presidency’ of Recep Tayyip Erdoğan and his authoritarianism
accompanied by a denial of freedom of the press and interference
in the judicial system.” However, “some judges have recently come out
against ‘this repression that goes too far’: journalists have been
acquitted of abusive charges such as ‘insulting the president’,
‘belonging to a terrorist organization’, or ‘propaganda’. Judicial
review now takes precedence over the imprisonment of journalists”.
This is a trend to be welcomed.120. However, RSF notes that "verbal attacks and political hostility
towards outspoken journalists have increased steadily in Türkiye
since the 2019 local elections, exacerbating the existing climate
of impunity and encouraging those suspected of links to corruption
to attack local reporters who cover corruption.” Two journalists
have been murdered in recent months: in March 2021, Hazım Özsu,
presenter of a programme on Radio Rahmet FMin Bursa, was gunned
down by one of his listeners who did not appreciate his comments about
religion. His alleged murderer, Halil Nalcaci, was arrested six
days later and sentenced to life imprisonment by the court. On 19
February 2022, Güngör Arslan, owner and managing editor of a local newspaper
in Kocaeli, was targeted in an armed attack on his office. Ten persons
were arrested, including Ersin Kurt who had been accused by Mr Arslan
in a series of articles recently published before his passing away
of winning tenders from the Kocaeli Metropolitan Municipality, thereby
violating the attorney's act.
121. Additional structural issues undermine media pluralism. RSF
findings show that “the government controls 90% of national media
by means of regulators such as the Radio and Television Supreme
Council (RTÜK), while the Press Advertising Council, which allocates
State advertising, and the Presidential Directorate for Communications,
which issues press cards, use clearly discriminatory practices in
order to marginalise and criminalise media critical of the regime. In a landmark ruling of 10 August
2022, Türkiye’s Constitutional Court ruled that the fines issued
by the Press Advertising Agency, the State body responsible for
regulating publicly funded advertisements in the media, to dailies
Cumhuriyet, Evrensel, Sözcü and Birgün were in violation of freedom
of press and expression and has sent a copy of its ruling to the
parliament for a regulation to be undertaken with regards to this
issue.
In a landmark ruling of 10 August
2022, Türkiye’s Constitutional Court ruled that the fines issued
by the Press Advertising Agency, the State body responsible for
regulating publicly funded advertisements in the media, to dailies
Cumhuriyet, Evrensel, Sözcü and Birgün were in violation of freedom
of press and expression and has sent a copy of its ruling to the
parliament for a regulation to be undertaken with regards to this
issue.122. There is tight control of internet; international social media
platforms failing to appoint a legal representative in Türkiye or
failing to apply the censorship decisions taken by Türkiye’s courts
are exposed to an escalating range of sanctions that include fines,
withdrawal of advertising and reduction in the bandwidth available
to them.
123. Finally, on 26 May 2022, the ruling coalition submitted a
bill criminalising “disinformation”. Those who are “spreading false
information with regards to the country's domestic and external
security, public order and general health in a way that that is
suitable to disrupt the public peace, with the purpose of creating
concern, fear or panic among the people” could face prison sentences
of one to three years. Online news outlets will be required to remove
“false” content, and the government may block access to their websites
more easily. According to the authorities, this draft law aims at
“regulating and enhancing the online media platforms just like the
European Union’s upcoming Digital Services Act, which aims to remove
illegal content, increase transparent advertising, and improve the
fight against disinformation. The European Union’s digital regulations force
tech giants like Google and Meta to police illegal content on their
platforms, which is similar to the provisions of Türkiye’s upcoming
laws on the same issue.”
124. This draft law, however, has alarmed Turkish media professionals,
who fear that it is aimed at silencing media, and to “tame” online
media platforms where there is alternative and critical reporting”,
meaning that “the simplest political objection in the media would
be “deleted” by the judiciary, which is under the influence of the ruling
power”, according to RSF representative Erol Önderoğlu. This draft law was
also criticised for being vaguely worded, and could put additional
pressure on journalists. The main opposition
party CHP assesses this bill as an attempt to censor online media,
should this bill be passed in its current version, and the CHP plans
to take this draft law to the Constitutional Court to seek its annulation.
This draft law was
also criticised for being vaguely worded, and could put additional
pressure on journalists. The main opposition
party CHP assesses this bill as an attempt to censor online media,
should this bill be passed in its current version, and the CHP plans
to take this draft law to the Constitutional Court to seek its annulation. 125. Finally, a new trend seems to be emerging, with fines imposed
by the RTÜK on channels that display comments from opposition members.
In the wake of the verdict in the Kavala case, media who had broadcast the
comments of two opposition deputies, Özgür Özel (from the CHP) and
Ahmet Şık (from the Workers’ Party of Türkiye), who had condemned
the conviction of Osman Kavala and his co-defendants, received a
fine from the RTÜK amounting to 3% of their monthly advertisement
revenues on 10 May 2022. In
addition, an investigative journalist, İsmail Saymaz, faced investigation
by the Anti-Terror and Organized Crime Bureau of the İstanbul Police
Department after stating that the wife of one of the judges in the
Gezi Trial who handed down the aggravated life sentence had been
named a suspect in an investigation against followers of the Gülen movement.
Later, the demonstrations celebrating the 9th anniversary of the
Gezi demonstrations were restricted.
In
addition, an investigative journalist, İsmail Saymaz, faced investigation
by the Anti-Terror and Organized Crime Bureau of the İstanbul Police
Department after stating that the wife of one of the judges in the
Gezi Trial who handed down the aggravated life sentence had been
named a suspect in an investigation against followers of the Gülen movement.
Later, the demonstrations celebrating the 9th anniversary of the
Gezi demonstrations were restricted.126. More recently, fines were imposed on four TV channels for
airing opposition CHP leader Kemal Kılıçdaroğlu's speech in which
he claimed that President Erdoğan was preparing to flee Türkiye
with his family members if he lost the elections. The authorities
claim that the fines issued by RTÜK “are not aimed to ‘punish’ or
‘restrict’ media platforms, but to make them responsible, to divert
their attention from fake news and to increase the quality of the
national media” and that “RTÜK’s fine against the false statements
of an opposition politician was a measure to protect the democracy
in Türkiye from subversive disinformation attacks”. This is
a highly sensitive issue which could have detrimental effects on
freedom of expression. An opinion from the Venice Commission would
be helpful to assess the compatibility of this draft law with our
standards.
This is
a highly sensitive issue which could have detrimental effects on
freedom of expression. An opinion from the Venice Commission would
be helpful to assess the compatibility of this draft law with our
standards.127. In conclusion, the conditions for the preparation of the 2023
elections should be improved to allow political parties to operate
and to campaign freely.
5. Concluding remarks
128. Five years since the Assembly
decided to place Türkiye under the monitoring procedure, we sought
to prepare a mid-term review of this procedure, focusing specifically
on the implementation of the judgments of the European Court of
Human Rights, the judiciary and challenges to the rule of law, and
the preparation of the 2023 parliamentary and presidential elections.
129. Despite some steps taken in the Action Plan on Human Rights
of the 4th Judicial package, issues of concerns
identified in previous resolutions of the Assembly have been insufficiently
addressed by the authorities, We can but encourage Türkiye to further
engage into a meaningful, result-oriented co-operation with the
Council of Europe and its monitoring mechanisms to address them
and find common solution. The Constitutional Court, through the
mechanism of individual application, has an important role to play
to secure fundamental rights.
130. One major recent development was the launch of an infringement
procedure in February 2022, following Türkiye’s failure to implement
the Kavala judgment. We have on several occasions stressed that
the solution to the Kavala case lies in the hands of the Turkish
judicial system. The latter has the capacity to find a legal solution
and show a more diligent interpretation of the European Court judgement,
in compliance with its ruling and international law. The Assembly
should therefore follow with close attention the activities of the
Committee of Ministers with respect to the ongoing infringement
procedure. We also expect the support of member States to the Committee
of Ministers to ensure that decisions in this respect will not undermine
or jeopardise the effectiveness of the system of protection of fundamental
rights and the credibility of the Court. We therefore strongly encourage
the Turkish authorities to abide by the Court rulings, and we reiterate
our call to release Mr Kavala and also Mr Demirtaş.
131. We have also observed that since the political system was
changed in 2017 by referendum – which is a sovereign right of any
member State – and established a presidential system, the democratic
institutions in Türkiye were weakened, and the system of checks
and balances made dysfunctional and deficient. There is an urgent
need for reforms to restore in the first place the full independence
of the judiciary and effective checks and balances, following the
recommendations of the Venice Commission. This includes the need
to revise the Constitution to restore the separation of powers.
132. Another crucial issue concerns the preparation of the presidential
and parliamentary elections in 2023, which should be observed by
the Assembly. The lowering of the electoral threshold from 10% to
7% – a long-lasting request from the Parliamentary Assembly – is
a welcome development. However, the state of the overall electoral
environment, including challenges to freedom of media and level
playing field, could seriously undermine the fairness of electoral
processes. In this respect, we remain worried about the crackdown
on opposition members, and the ongoing closure case against the
HDP, which would be an alarming sign. We hope that the Constitutional
court will take a decision in compliance with European standards
and the case law of the European Court of Human Rights. The Turkish
authorities also need to ensure that all conditions will be met
to guarantee free and fair elections, including the ability of the
opposition to operate, and journalists to work in an independent
way. Some of the recent changes in the electoral legislation (as
highlighted by the Venice Commission) and the draft bill on disinformation
are, in this context, of serious concern.
133. In this context, the Assembly should remain at the disposal
of the Turkish authorities to pursue a constructive dialogue and
should continue to follow the developments in the country concerning
democracy, rule of law and human rights.
Appendix Appendix
(open)Dissenting opinion presented by Mr Ahmet Yıldız (Türkiye, NR), Chairperson of the Turkish Delegation to the Assembly, pursuant to Rule 50.4 of the Rules of Procedure
There are issues we have raised during the preparation phase of the report, which unfortunately have not been reflected in full or at all in the current report. Also, our proposals for amendments have not been adopted by the Monitoring Committee. We therefore take this opportunity to submit this dissenting opinion in order to do justice to the report.
While the report draws attention to the unique situation of Türkiye with regard to her fight against terrorism, it is seen that the problems and difficulties Türkiye faces and the methods it has to follow to maintain public order and security are not fully acknowledged. Türkiye's will and efforts towards promoting and protecting human rights and the rule of law while countering terrorism are not sufficiently taken into account, as well. Türkiye exerts the utmost effort to fulfil its international obligations while addressing threats to its security. In this context, PKK should be referred to as a terrorist organisation as recognised by the courts, countries and international organisations.
Further, it is evident that the damages caused by a terrorist organisation such as FETÖ is not adequately understood and reflected in the report. It is unacceptable to still refer to FETÖ as “Gülen movement”, which is a terrorist organisation that has been disclosed and admitted to be a terrorist organisation by its own members, carried out many criminal activities, and going further, attempted to stage a coup to overthrow the constitutional order and the democratically elected government, which left 251 people dead and more than 2 000 wounded.
With regard to criticisms in the context of the implementation of the European Court of Human Rights’s (ECtHR) judgments, it should be noted that Türkiye has demonstrated its commitment to the European Convention on Human Rights by being the country that closed the highest number of cases in the last three years, namely 732 cases in 2019, 168 cases in 2020 and 222 cases in 2021. Türkiye has executed 2 850 judgments in the last 10 years, and the total number is approaching 4 000. While Türkiye has implemented such a large number of judgments, it is not fair and appropriate that only certain judgments are brought to the fore. There are countries that have not implemented the ECtHR’s judgments for more than a decade, but despite this, they are not subject to pressure while Türkiye is. Thus, a double standard is applied and also included in the report.
Additionally, as a related issue, the report should have refrained from making comments and calls on the ongoing legal proceedings, as they are to be respected, and any acts that could interfere with them should be avoided.
Last but not least, the concerns regarding the upcoming elections are unfounded. Türkiye has an established tradition of free, fair, transparent and democratic elections. There can be no doubt that within the framework of legislation, which reflects this tradition, and also international obligations, the 2023 parliamentary and presidential elections will be held in a democratic environment and a transparent manner.