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28 June 1994
Doc. 7112
REPORT
on the consequences of the dissolution
of the Party for Democracy (DEP) in Turkey
(Rapporteur: Mr JURGENS,
Netherlands, Socialist Group)
I. Draft resolution
1. The Assembly recalls its Resolution 1030 (1994) of 13 April 1994 on the arrest and detention of six members of the Turkish Grand National Assembly on 2 and 3 March 1994 in which it
i. impressed on its Turkish parliamentary delegation and on the Turkish authorities, that the arrest, detention and prosecution of members of the Grand National Assembly for their political views because these views are - in the opinion of these authorities - of a criminal nature, is a possible threat to the very essence of parliamentary democracy, and that such a prosecution - if it is necessary - should be conducted with the greatest concern for parliamentary rights and civil liberties;
ii. called on the Turkish authorities to withdraw the existing charges before the State Security Court against the six members of Parliament which are based on political statements that are allegedly treasonable, as it cannot reasonably be treasonable to advocate constitutional change by parliamentary means;
iii. called on the Turkish authorities to withdraw their request before the Constitutional Court to "close" the DEP party on the grounds of treasonable aims (that is separatism), this request being based solely on one single document and on two statements which urge changes within the Turkish Constitution, and therefore seem to fall within the limits of free speech, certainly for a parliamentary party;
iv. called on the Turkish authorities to make use of the possibility of preparing its case against the six DEP deputies - if the authorities insist on pursuing the prosecution - without holding them in detention, as this makes their work as representatives of the people impossible;
v. called on the Turkish authorities to take initiatives for a peaceful and political solution to "the Kurdish question" within its frontiers, including the repeal of all legislation which makes normal political discourse and free speech about specific changes in the constitution (in this case "the indivisibility of the state") a treasonable offence;
vi. called on all its members to use every opportunity to raise the case of their six Turkish colleagues with the Turkish authorities;
vii. urged especially its Turkish parliamentary delegation to create a political middle-ground in the Turkish Parliament for a dialogue that recognizes the existence of "the Kurdish question" and seeks a peaceful political solution for it.
2. The Assembly considers that, since the adoption of its Resolution 1030 (1994) the situation has worsened, especially following, firstly, the decision of the Constitutional Court in Ankara of 17 June to "close", i.e. to declare unconstitutional, the DEP Party which had - apart from the six who were already detained since 2/3 March - thirteen members in the Grand National Assembly and, secondly, the filing on 21 June last of the indictments with the State Security Court against the six deputies, in which the death sentence has been demanded.
3. The Assembly is concerned that, as a result of the decision of the Constitutional Court, legal proceedings will be initiated against the others as well.
4. The Assembly notes that applications were filed with the European Commission of Human Rights by or on behalf of the imprisoned members of the Grand National Assembly.
5. The Assembly is convinced that a solution to the serious problems and the grave situation in South-East Turkey must be found by peaceful means, and that - apart from other considerations - the Turkish authorities make a considerable political error in eliminating the elected representatives of a part of the Turkish people rather than trying to establish a dialogue with and through them, and with others seeking a peaceful, political solution to the Kurdish problem within Turkey.
6. The Assembly stresses the danger of the measures against the DEP deputies escalating into further breaches of the rule of law and of human rights in a democratic society, now advocacy in the public debate of changes in the Constitution (in this case urging a measure of (cultural) autonomy for the Kurdish provinces) is being construed by the authorities as a form of aiding and abetting acts of separatism and terrorism.
7. The Assembly reiterates its abhorrence of any kind of terrorism, and wishes to stress the importance of articles 10 and 11 of the European Convention on Human Rights, which grant freedom of expression, of assembly and of association - rights which take a particular dimension for members of parliament.
8. In conclusion, the Assembly therefore
i. urges the Turkish Grand National Assembly, the Turkish authorities and the parliamentary delegation from Turkey to comply immediately with the proposals made in its Resolution 1030 (1994);
ii. instructs its Bureau to arrange for a delegation headed by its President to visit Ankara in the very near future to make yet further and, hopefully, positive contacts with the Turkish authorities regarding a situation which is of such immediacy as to cause considerable distress; and
iii. expresses the wish that Turkey receive CSCE delegations to implement the human rights mechanisms set up by that organisation.
II. Explanatory memorandum
by Mr JURGENS
1. In my report of 12 April 19941 I described the arrest and detention on 2/3 March 1994 of six members of the Turkish parliament belonging the DEP Party. I also predicted that around 1 June 1994 the Constitutional Court would hand down a decision on the procurator-general's petition for banning the DEP Party as a whole.
The report was accepted by the Committee on Legal Affairs and Human Rights and formed the basis for Resolution 1030 (13 April 1994), in which separatism and terrorism were condemned, but the Turkish authorities, and the Turkish delegation to the Assembly, were urgently requested to desist from the persecution of the DEP Party, the legal basis of which persecution was deemed to be contrary to the rule of law and to European constitutional traditions, because verbal advocacy of autonomy for Kurdish provinces within Turkey by members of parliament cannot reasonably constitute high treason, as the Turkish authorities claim.
On 13 April the indictments against the Six had not yet been filed with the State Security Court. This has now taken place on 22 June. On 17 June the Constitutional Court decided to ban the DEP Party, on the basis of the "Peace Now" declaration (published in the Appendix to report 7067) and two other declarations by leading members of the DEP, which all do no more than plead for a political solution to the Kurdish problem, while advocating measures of autonomy for the Kurdish provinces.
The report stressed the necessity for creating a middle-ground for a political debate on the problem of Kurdish (cultural) autonomy, as an alternative to the present policy of military repression. Banning parties that could help create that middle-ground is highly counterproductive to this aim.
2. The Turkish delegation to the Assembly, on 13 April, published a statement2 in which it denounces Resolution 1030 (1994) as this decision "would have no other interpretation but an encouragement for ... a terrorist organisation", on the basis of which the Turkish colleagues declared Resolution 1030 to be "null and void". The Turkish authorities have not reacted in any way to the Assembly resolution, except that the procedures against the DEP and the Six have continued unabated.
3. The banning of the DEP has dire consequences for the members of parliament belonging to this party. From the moment of the official publication of the Court decision the deputies lose their seats in parliament ipso iure, and their immunities. Considering public pronouncements by the procurator-general of the State Security Court it is to be expected that some or all of them will be indicted like the Six have been.
A number of DEP deputies left Turkey before 17 June. They are staying in Brussels. I have asked the Chairman of the Committee on Legal Affairs and Human Rights by letter of 21 June to allow a delegation of these DEP (now ÖzDEP) members to be received in hearing by the Committee during the June Plenary.
4. Your rapporteur has not had the occasion to study the indictments against the Six which were published on 21 June (480 pages!). A short summary in the newspaper Milliyet of 22 June indicates that - as the report already indicated would be the case - the indictments are based on statements by the Six, concerning the Kurdish autonomy, the history of "Kurdistan", the PKK, the situation in South-East Turkey, the unity of the Turkish nation and people, etc., statements which - considering the necessity of a robust debate within a democratic society - would, for the most part, be regarded as being a normal part of their function as representatives of the people. In fact the procurator-general has asked for the death penalty against the Six, the only penalty that art. 125 of the Penal Code (high treason) allows for.
5. The conclusion which these new events lead us to is that in Turkey a dangerous escalation has developed in the attitude of the Turkish authorities towards DEP and towards all others who advocate a political solution, instead of a military one, towards the wish of Kurdish Turks to have some (cultural) autonomy within the Turkish state.
This escalation is cause for grave concern, as vital issues of parliamentary democracy, free speech and the rule of law, i.e. the very essence of what the Council of Europe stands for, are at stake. The Assembly cannot sit back and wait while such developments are taking place within a member State of the Council of Europe. It is our moral and legal obligation to take the matter up again with our Turkish colleagues and friends, and with the Turkish authorities.
On 10 June the Chairman of the Legal Committee, Lord Kirkhill, sent a letter to the President of the Assembly asking for a delegation to be sent to Ankara headed by the President "to make yet further and, hopefully, positive contacts with the Turkish authorities regarding a situation which is of such immediacy as to cause considerable distress".
I would suggest that the Committee on Legal Affairs and Human Rights request the Assembly to formally mandate, with urgency, a delegation for such a mission headed by the President.
A P P E N D I X
DECLARATION
by Members of the Turkish Parliamentary Delegation
(Strasbourg, 13 April 1994)
As members of the Turkish parliamentary delegation of the Parliamentary Assembly of the Council of Europe, we did not oppose to discuss the "lifting of the parliamentary immunities of certain Turkish parliamentarians". For we were confident that a constructive debate on the subject would have been a worthwhile contribution by our Assembly as well as giving us an opportunity to inform our colleagues on the subject.
The contents of the Resolution prepared by the Rapporteur of the Committee on Legal Affairs and Human Rights, Mr Jurgens, has not met our expectations.
The Turkish Delegation as a whole has decided to stand against the Resolution for the following reasons:
1. The lifting of parliamentary immunities is a parliamentary act which exists in all democratic societies. The will of the majority of the Turkish Grand National Assembly responded to the expectations of Turkish public opinion by voting in favour of the lifting of the parliamentary immunities of some of its members. This is a democratic act which is in conformity with the rule of law. It is rightly expected that the other member States respect this parliamentary decision as such.
2. The judicial organs of a member State of the Council of Europe are independent. It is one of the basic principles of the constitutional law in democracies. So it is rightly expected that this principle be respected by other member States.
3. It has been unanimously accepted in the Council of Europe and in other international fora that terrorism has no justification. The said Resolution tends to encourage terrorist activities against the territorial integrity and political unity of Turkey by a terrorist organisation which has the sole objective of establishing an independent state on the territories of the Republic of Turkey. It is only the legitimate right of every country to defend its territorial integrity. This is a principle which has been accepted by all of us, not only in the Council of Europe but in all international organisations. Turkey is determined to defend her territorial integrity and no international document which contains decisions or any provision to the contrary, could deter Turkey from her determination.
At last it should be fair to accept that it is regrettable that, while a member State tries to eradicate a terrorist organisation within its territories, the Council of Europe has taken a decision which would have no other interpretation but an encouragement for such a terrorist organisation. It is all the more regrettable that such a resolution has been taken against a country actively contributing to European cooperation in the Council of Europe since its inception, in spite of all the difficulties engendered by its geographical location.
Therefore we consider the resolution null and void.
signed: MM ÇilolğluD
Demiralp
Gül
Gündoğdu
Güner
Inönü
Kiratlioğlu
Kiliç
Maruflu
Mimaroğlu
ÖzverŞ
ŞenbaşS
Soysal
Yürür
Reporting committee: Committee on Legal Affairs and Human Rights
Budgetary implications for the Assembly: cost of the proposed delegation
Reference to committee: Assembly decision on 28 June 1994
Draft resolution adopted by the committee on 28 June 1994 with 17 votes in favour, 2 against and no abstentions
Members of the Committee: Lord Kirkhill (Chairman), MM Schwimmer, Jansson, (Vice-Chairmen), Amaral, Andriukaitis, Arnalds, Bentkowski (alternate: Bartodziej), Berti, Bindig, Borg, Bučar, Candal, Columberg, Croze, Deasy, Espersen, Fogaš, Franck, Frunda, Fry, Fuhrmann, Galanos (alternate: Hadjidemetriou), Ghigo, Guenov, Hagċrd, Mrs Haller, Mrs Holand, MM Hunault, Inönü, Mrs Jaani, MM Jaskiernia, Karas, Karcsay, Kempinaire, Mrs Lentz-Cornette (alternate: Mrs Err), MM Loutfi, van der Maelen, Maginas, Rathbone, Robles Fraga, Rodeghiero, Rokofyllos, Salvi, von Schmude, Severin, Mrs Soutendijk-van Appeldoorn, MM Soysal, Stoffelen (alternate: Jurgens), Tabajdi, Trojan, Vinçon, Vogel, Mrs Wohlwend, Mr Zapatero.
N.B. The names of those members who took part in the vote are printed in italics.
Secretaries to the committee: Mr Plate, Ms Coin and Mrs Kleinsorge.
2 2 Appendix I.