1. Introduction
1. The Parliamentary Assembly decided, in its
Resolution 1380 (2004) on the honouring of obligations and commitments by Turkey,
to close the monitoring procedure in respect of that country, recognising
the progress made in the reform process and expressing its confidence
in the Turkish authorities to continue and consolidate the reforms,
whose implementation will call for major efforts to adapt laws and
regulations in the years ahead.
2. In June 2008, the Assembly adopted
Resolution 1622 (2008) on the functioning of democratic institutions in Turkey:
recent developments, on the basis of a report presented by Mr Luc
van den Brande (Belgium, EPP/CD)
and dealing in particular with the
issue of the dissolution of political parties.
3. The Assembly decided to continue the post-monitoring dialogue
with the Turkish authorities, via its Committee on the Honouring
of Obligations and Commitments by Member States of the Council of
Europe (Monitoring Committee), on the 12 points which Turkey was
invited to take into account in the context of the reform process
undertaken by its authorities.
4. Having been appointed rapporteur for post-monitoring dialogue
with Turkey on 24 June 2010, I carried out a first fact-finding
visit from 8 to 13 January 2011 in Istanbul, Diyarbakır and Ankara,
took part in the observation of the parliamentary elections on 12
June 2011 and travelled to Van and Diyarbakir for this purpose.
I later paid two visits, from 15 to 19 June 2012 (during which I
visited Silivri prison) and from 5 to 9 November 2012, when I went
to the Hatay Province on the Syrian border to visit the refugee
camps of Yayladağı and Altınözü. During these visits in Turkey,
I met with the highest authorities in the country, including the
President of the Republic, Mr Abdullah Gül. I held lengthy talks
with the Justice Minister, Mr Sadullah Ergin, during each of my
missions, and I would like here to sincerely thank him for authorising
my access to the Silivri prison on 18 June 2012, and facilitating
my contacts with certain important detainees. He also enabled me
to meet high-level judicial representatives. I was also able to
meet many ministers, the Presidents of the Constitutional Court
and the Supreme Court of Cassation, senior officials of the main
political parties, religious leaders, non-governmental organisations
(NGOs) and media officials, and I also insisted on talking to a
range of civil society representatives.
5. I would like to thank the previous chairperson of the Turkish
delegation to the Parliamentary Assembly, Mr Erol Aslan Cebeci,
his successor, Ms Nursuna Memecan, and Mr Haluk Koç, as well as
the members of the Turkish delegation for their valuable contributions
to my work and the preparation of comments on my preliminary draft
report.
6. The principal aim of these fact-finding visits was to verify
the implementation of the 12 action requirements set out in
Resolution 1380 (2004) and which will be discussed at length in this report.
It should be noted, however, that the country is now engaged in
a far-reaching political transition process that is both speeding
up and, above all, changing the course of events.
7. A major aspect is the drafting of a new constitution, which
will both enshrine the new foundations of Turkish democracy and
establish a different system. The work on the constitution will
result in a redefinition of powers, but we also expect to be given
details of the checks and balances to be introduced. This progress report
will therefore highlight actual progress made as well as numerous
major gaps and shortcomings in terms of human rights and the rule
of law. It will only make an initial assessment of the implementation
of the 12 requirements in
Resolution
1380 (2004) – and will necessarily emphasise the context in which
these developments are taking place.
8. This interim report also incorporates the comments and observations
presented by Mr Serhiy Holovaty (Ukraine, ALDE), at the time Chairperson
of the Monitoring Committee, to the committee in April 2009 on the basis
of his fact-finding visit to Turkey from 26 to 28 November 2008.
Furthermore,
this report takes broad account of the extensive comments forwarded
by the Turkish delegation as from November 2011 to the preliminary
draft report prepared in June 2011 and to its revised version of
January 2013.
9. It needs to be reiterated that we have carried out these missions
and produced this report in a crucial period of political transition,
which will come to an initial end with the presidential election
in 2014 and the parliamentary elections in 2015.
2. The internal
political situation and identification of the main problems
2.1. Issues at stake
in and results of the parliamentary elections of 12 June 2011
10. Parliamentary elections were held on 12 June 2011.
I took part in the election observation mission undertaken by an
Assembly delegation. The parties contesting the 12 June 2011 election
were:
- the Justice and Development
party (AKP), a party labelled as “Islamo-conservative” or “stemming
from the Islamic movement” by its opponents, and as “conservative
democrat” by its members, in power since 2002. The Prime Minister,
Mr Erdoğan, was seeking a third term of office. He emerged in a
stronger position following the referendum. Public opinion considers
that significant reforms have been made by the AKP, which secured
50% of the vote in the 12 June 2011 election;
- the Felicity Party (Saadet) officially claims to follow
an “activist political Islamist” line. However, this party has never
obtained more than 5% of the vote;
- the Republican People’s Party (CHP), a secular nationalistic
and social-democrat party, invariably takes as its reference the
founder of the Turkish Republic, Atatürk. It is the main opposition
party. Its new leader, Kemal Kılıçdaroğlu, hoped to win 30% of the
votes in the elections and obtained almost 26%;
- the Nationalist Movement Party (MHP) is a right-wing nationalist
party. This party, which had obtained 14% of the vote in 2007, garnered
13% of the vote in 2011;
- the Peace and Democracy Party (BDP) is a pro-Kurdish opposition
party, the successor of the Democratic Society Party (DTP), dissolved
on 11 December 2009 by the Constitutional Court on the grounds that
it was a focal point for activities undermining the independence
and indivisible integrity of the State. What are its real and direct
links with the terrorist organisation PKK and with which party or parties
could the BDP have then formed a coalition? In Diyarbakır, the largest
city in south-eastern Turkey, many people felt that a coalition
would not be possible with the AKP or with the CHP, which was, in
fact, very nationalistic. Given the election threshold of 10%, the
Kurdish candidates stood as independent candidates, some under the
“Labour, Democracy and Freedom Block” label. The BDP only obtained
6.5% of the vote, and in view of the 10% threshold, it is only represented
in parliament by 35 independent elected representatives, including
Leyla Zana, their emblematic candidate, whom I met on the day of
the elections in Diyarbakir.
11. I note that, in these parliamentary elections, candidates
were able to campaign in a language other than Turkish, which is
a noteworthy step forward.
12. The decision by Turkey’s Supreme Election Board (YSK) on 18
April 2011 to reject 12 independent candidates – and in particular
some emblematic figures for the Kurdish electorate
– because of previous convictions
related to terrorist activities, raised some disapproval. In view
of the outrage this caused not only among Kurdish voters (resulting
in violent rioting and the death of at least one person) but also
throughout the entire political community, including the President
of the Grand National Assembly, Mr Mehment Ali Şahin, the President
of the Supreme Election Board, Mr Em, decided to review this (in
theory irrevocable) decision on the condition that the candidates
produced a certificate to the effect that they were not deprived
of their civic rights after serving a prison sentence. Once this
document had been produced, the YSK decided, on 21 April 2011, to
authorise seven candidates (including Ms Zana, Ms Kışanak, Ms Tuncel
and Mr Dicle) to stand in the 12 June 2011 elections.
13. It should be noted that the Constitutional Court had stated
on 21 April 2011 that previous convictions were not a permanent
obstacle to persons standing for election: “Prison sentences handed
down against individuals by courts do not deprive them for the rest
of their lives of the right to participate in elections.” Prime Minister
Erdoğan also reacted, announcing that the next parliament would
need to review the structure of the YSK as part of a major judicial
reform which would be launched after the 12 June 2011 elections.
14. The Assembly’s pre-electoral delegation sent to Turkey on
18 and 19 May 2011 noted with satisfaction the strong economic progress
made since 2007 and the efficient functioning of the Supreme Election
Board, but voiced fears regarding the operation of the media, which
are “reportedly applying self-censorship for fear of falling victim
to a broad interpretation of the anti-terrorist legislation”, and
mentioned “reports of growing tension, violence, harassment, imprisonment
and detention of Kurdish opposition supporters, including elected officials,
and a loss of life in the east and south-east of the country”, which
were giving rise to grave concerns. The delegation also noted that
the 10% threshold, by far the highest among the Council of Europe
member States, remains the central issue that limits the representative
nature of the legislature. In view of the uproar caused by the rejection,
then re-admission, of certain candidates, the pre-electoral mission
stressed the need for further improvement of the relevant legal
basis.
15. I had set out a number of personal findings from my observation
of the polling stations in south-east Turkey, in Van and Diyarbakir
(including Van prison), a troubled, indeed explosive area:
- the political parties and candidates
had unequal levels of resources: the Prime Minister conducted an aggressive
campaign at all levels, particularly on television;
- the freedom of the press was limited, some 50 journalists
being detained at the time of the election;
- political pluralism is impeded by the electoral threshold
of 10%;
- the police were ubiquitous, even going into the polling
stations.
16. The Assembly’s
ad hoc observation
committee for the elections on 12 June 2011
concluded
that the elections in Turkey had been democratic, properly organised,
pluralistic, and conducted by professional and dedicated members
of the electoral administration. However, it invited Turkey to reinforce
freedom of the press, lower the current 10% threshold – it is “the
highest in Europe [and] is clearly limiting the representative nature of
the legislature in Turkey. It also affects the diversity of political
discourse in the country” – in order to prevent any future distortions
in the representative nature of the legislature, to ensure the exercise
of the voting rights of Turkish citizens residing abroad by organising
voting in the diplomatic and consular missions, to consider adopting
new legislation authorising impartial local observers to participate
in the process, to reinforce female participation and representation
in political life (although it welcomed the improvements made during
this election, with 78 seats held by women as compared with 46 previously)
and to improve voting conditions for persons with disabilities.
17. The ad hoc committee
also urged the new Turkish Parliament to adopt without delay legislation
to improve the electoral system. This procedure should be conducted
in consultation with all the political players involved and, if
necessary, with the help of the European Commission for Democracy
through Law (Venice Commission).
18. The ad hoc committee also considered the issue of eligibility
of candidates and/or the exercise of the mandates of parliamentarians
against whom charges had been brought.
19. The ad hoc committee noted the annulment of the election of
a Kurdish candidate from Diyarbakir, Hatip Dicle, one week after
the election, by the High Electoral Council, which described the
facts as “propaganda in favour of a terrorist organisation” – a
decision confirmed by the Appeal Court.
20. It should also be noted that members of the CHP, MHP and BDP
in pre-trail detention had been authorised to stand in the elections
and were elected, but their applications for release were turned
down, which meant that they could not be sworn in and therefore
could not exercise their mandates. This situation had induced members
of the CHP and BDP to refuse to take the oath on 28 June 2011 and
to boycott parliament until a legal solution could be found for
these MPs. Members of the CHP took their oath of office on 11 July
2011 after a joint AKP-CHP declaration stating that all political
parties and parliamentarians should be in the Turkish Grand National
Assembly. BDP members took their oath of office on 2 October 2011
following the party’s collective decision. I note, however, that
there is still no legal outcome to the pre-trial detention of these
members of parliament for the moment: two CHP MPs and six BDP MPs
are still in custody pending a judicial decision, while the MHP
member, Engin Alan, was sentenced at first instance to 18 years’
imprisonment in connection with the Balyoz case on 21 September
2012. As the ad hoc election observation committee points out, it
is urgent that the Turkish authorities clarify the electoral provisions
in order to prevent similar situations in future.
21. The AKP being almost certain to win the 12 June 2011 legislative
elections, the central issue in these elections was its margin of
victory: would it be enough to give the AKP the two-thirds majority
in parliament (367 seats) needed to revise the Constitution, or
would it force the AKP to work out a deal with the opposition parties before
submitting the constitutional reform to a referendum? Would a broad
AKP victory confirm Prime Minister Erdoğan in his resolve to establish
a presidential system? By winning 327 seats (49.80% of the votes
cast), the AKP consolidated its ruling position, even though it
fell short of the qualified majority of 330 votes (for proposing a
referendum) or 367 votes (for a parliamentary review of the Constitution).
The election results will therefore force the AKP to come to a compromise
with the opposition parties CHP (135 parliamentarians, with 25.98% of
the votes cast) and MHP (53 parliamentarians, with 13.02% of the
vote), as well as the 35 independent parliamentarians (6.59% of
the vote), affiliated with the BDP.
2.2. Recent developments
in Turkey
2.2.1. Economic progress
22. Power would seem to have coalesced around the Justice
and Development Party (AKP), which has been in power for over ten
years. Turkish political life is thus marked by a great deal of
stability combined with a particularly impressive economic boom,
which is undeniably a major success for the AKP, as most of my dialogue
partners confirmed; over the last ten years Turkey has seen an annual
average growth rate of over 5.9%. The country has risen to 17th
place worldwide, and the Prime Minister has set the goal of making
it one of the 10 top economic powers by the year 2023, the centenary
of the foundation of the Turkish Republic.
23. A decade of reforms and economic success has transformed the
country: in economic terms, the government has completed an agreement
with the International Monetary Fund (IMF), cleaned up the banking system
and introduced strict budgetary discipline, restoring confidence
and boosting growth. The country has achieved an annual rate of
over 8% four times within a decade. Gross domestic product (GDP)
per head of population has tripled in 10 years (increasing from
US$3 500 in 2002 to US$10 400 in 2011).
24. Turkish economic growth stood at 8.5% in 2011. The economic
crisis (which has hit the European Union, the country’s main economic
partner) is currently forcing Turkey to downscale its growth forecasts
(3.2% in 2012). Economic expansion has led to a drop in unemployment
(from 11% in 2011 to under 9% in 2012) and a reduction in the current
deficit and the public debt (which accounted for 39% of GDP in mid-2012).
2.2.2. Redefinition of
the role of the army and trials relating to the coups d’état
25. Above and beyond this economic success story, Turkey
has in the past few years launched a process of transition and radical
change after a period of 50 years of successive coups d’état aimed
at military domination. The constitutional referendum of 12 September
2010 (see below) paved the way for redefining the bases of Turkish
democracy, at a time of such major trials as the Ergenekon case,
the redefinition of the role of the army, etc. This transitional
period has been revisiting the past, and has obviously entailed
some excesses and a severe “purging” process.
26. Alongside the judicial proceedings initiated over the last
few years, parliament has set up a “parliamentary commission to
investigate military coups and memorandums”. The following information
was provided by the Turkish delegation: “During its four-month mandate,
the Commission heard testimonies from 165 individuals, including
journalists, media owners, coup victims, former Chief of Staff Yaşar
Büyükanıt and received a written response from Prime Minister Erdoğan.
The Commission submitted its 1449-page report at the end of 2012
to the Speaker of the Parliament, Cemil Çiçek. The report explores
the causes of coups … and concludes with 20 suggestions.”
The rapporteur did not know about this report
during her last visit in November 2012.
27. This recent period has seen the dismantling of the Kemalist
military establishment. Many high-ranking army officials and hundreds
of officers have been arrested and sentenced since 2011 as a result
of the investigations into – real or alleged – conspiracies and
coups d’état.
- On 5 January
2012, the former Chief of Staff (2008-2010), General İlker Başbuğ,
was arrested on suspicion of having approved the creation of 42
websites geared to disseminating propaganda against not only the
AKP but also the Greek and Armenian communities. President Gül and
Prime Minister Erdoğan expressed their surprise at his continued
remand in custody (on 5 August 2012), after his application for
release was turned down despite the new provisions of the Penal
Code.
- In August 2012, the Supreme Military Council (YAŞ, Yüksek
Askeri Şura) decided not to promote the accused officers and to
retire 55 generals, 40 of whom are currently facing charges in conspiracy
cases (Ergenekon, Balyoz, etc.). Members of the General Staff resigned
en bloc in protest at the non-promotion of the generals facing conspiracy
charges.
- Court proceedings were brought against the perpetrators
of the 12 September 1980 coup d'état, leading the prosecutor, in
January 2012, to call for the arrest of the two surviving senior
officers responsible for this military coup, General Kenan Evren (aged 86), the
then Chief of Staff (and a future President), and General Tahsin
Şahinkaya (aged 94), the then Commander of the air force, who were
formally charged. The trial began on 4 April 2012 and is still continuing.
The court decided on 6 April 2012, that the two Generals would not
be arrested but tried under judicial control. In view of their state
of health both defendants were authorised to testify by videoconference.
- In connection with proceedings in the case of the 1997
“postmodern coup”, a former Chief of Staff
of the Turkish army, General Ismail Hakki Karadayi, was arrested
on 3 January 2013 in Istanbul for his presumed role in a coup d'état
in 1997 overthrowing the first Islam-leaning Head of Government
in Turkey (he was subsequently released under judicial supervision
due to the new provisions of the 3rd judicial package). His interrogation
followed the imprisonment in April 2012 of the officer who had been Deputy
Chief of Staff in 1997, General Çevik Bir, considered as the “brains”
behind this putsch, and of almost 20 other officers prosecuted for
“attempted overthrow of the Government or the use of force to partially
or completely prevent the Government from operating”. Çevik Bir
informed the Court of the setting up of the West Study Group (BÇG),
which was alleged, under the 28 February process, to have collected
illegal information on the members of the government. Çevik Bir
contended that General Karadayi had known about the BÇG, while the
latter had denied this before the parliamentary commission of inquiry
into the coups.
2.2.2.1. The Balyoz trial
28. The Balyoz (“Sledgehammer”) trial,
which
began in December 2010, involved 365 army officers charged with
“attempted overthrow of the Government or the use of force and violence
to prevent the Government from discharging its duties”. On 2 and
3 August 2012, General Hilmi Özkök, Head of Staff from 2002 to 2006,
testified during the Ergenekon proceedings and explained that the
Balyoz Plan had been an academic exercise which had gone too far.
The trial was concluded on 21 September
2012 with 20-year prison sentences for three former generals,
16- to 18-year prison sentences
for 214 suspects, including Engin Alan, a MHP MP whom I met at Silivri
prison in June 2012, and acquittals for 34 officers. This was the first
trial of military officers, who had hitherto been regarded as the
guarantors of the foundations of Atatürk’s Republic, to be conducted
by a civilian court. Since the beginning of the period of military
coups in Turkey in 1960, this was the first time that such a coup
attempt was tried in a court case and the perpetrators punished. The
trial was also highly symbolical, in view,
inter
alia, of the number of officers convicted, and of the
severity of the sentences passed. I note that the defence has not
stopped challenging the fairness of the proceedings, particularly
concentrating on the electronic prosecution evidence produced (documents
allegedly produced in 2003 had apparently been drafted in a Windows
2007 environment; CDs had supposedly been produced by companies
which did not exist at the time, etc.).
The convicted officers will be able to
appeal to the Supreme Court of Cassation, then the Constitutional
Court, and finally the European Court of Human Rights (“the Court”).
2.2.2.2. The Ergenekon trial
29. The Ergenekon trial relating to a putative coup d'état
in 2007 involves 275 defendants, 66 of whom have been remanded in
custody, seeking to identify the presumed perpetrators of coups
d'état and conspiracies against the constitutional order. It should
be noted that many sectors of society accused of aiding and abetting the
army action have now been drawn in, including journalists and academics,
among them Professor Mehmet Haberal, a CHP MP, Mustafa Balbay, a
CHP MP and journalist, and Fatih Hilmioğlu, former Vice-Chancellor
of Inönü University in Malatya, whom I met in Silivri prison in
June 2012.
30. Ergenekon is a particularly complex case concerning a clandestine
ultranationalist organisation with multiple ramifications, making
it an “octopus” which has systematically engulfed a wide variety
of public figures. This case came to light thanks to the discovery
of an arms cache (26 assault grenades) during a search carried out
in June 2007 in Ümraniye, a district of Istanbul, and the recovery
of extensive evidence highlighting the organisation’s hierarchical
structure – the military being considered as the main operators
in the organisation, with civilians responsible for providing logistics
and financial resources and ensuring propaganda – as well as its
action plans
for overthrowing the government,
which were found during the various searches.
31. Ergenekon is a very controversial case: “an attempt by Islamo-conservatives
to eliminate pro-secular opponents” for some, “a fight against the
deep State” for others, this case has triggered a great deal of upheaval.
The defendants have constantly denounced the fabricated evidence,
based on fingerprints, and detentions which were deemed excessive
by the persons concerned.
32. In connection with the complaints about the evidence produced,
an application
has been submitted to the European Court
of Human Rights by Ahmet Tuncay Özkan, journalist, owner of the
Kanaltürk television channel and President of the “New Turkey Party”,
concerning his arrest and remand in custody on 23 September 2008.
The Court issued its decision on admissibility on 13 December 2011,
recalling that “it is not normally incumbent on it to impose its
own appraisal of the facts in place of that of the domestic courts,
which are better placed to assess evidence produced before them”.
The Court noted that “the applicant was deprived of his liberty
on suspicion of being one of the active
members
of a criminal organisation called Ergenekon, who were thought to
be engaged in activities aimed at the violent overthrow of the Government”.
The Court observes that the applicant was suspected in particular
of having illegally procured several top-secret documents from various
government departments responsible for national security, of having
founded and directed a TV channel in order to broadcast programmes
devised by the Ergenekon organisation, and of having stocked explosives
at home for the organisation. The Court also notes that items of
evidence such as phone tapping transcripts suggesting that the applicant
had acted in this way on the instructions of military staff in the organisation,
and documents and materials seized during searches, had been gathered
by the prosecution before the applicant’s arrest, on the strength
of suspicions that he had committed the criminal offence in question,
which is severely punished under the Penal Code. It can therefore
be concluded that the applicant can be considered to have been arrested
and detained on the basis of “plausible reasons for suspecting him” of
having committed a criminal offence. The Court therefore considered
that “there is nothing to suggest that in the present case the interpretation
and application of the legal provisions relied upon by the domestic authorities
were arbitrary or unreasonable to the point of making the arrest
of the applicant unlawful”.
33. The 270th hearing in the Ergenekon trial took place on 14
December 2012. Thousands of demonstrators (members of the CHP, left
radical groups and Kemalist organisations) demonstrated noisily
inside and outside Silivri prison, leading to several suspensions
of sittings; outside, demonstrators were dispersed with tear gas. The
prosecutor did not present his final submissions as announced, but
instead read out a fresh indictment. And so the proceedings continue.
34. It is, of course, for each State to take the necessary measures
to combat impunity and to do justice to the victims of coups d’état.
We can understand that the Turkish authorities are adopting all
the requisite measures to ensure that justice is done. As the organisation
Human Rights Watch pointed out in its September 2012 report, they
should do their utmost to tackle the time frames set out in legislation,
the intimidation of witnesses and all the other obstacles to prosecuting
members of the security forces and civil servants for murders, disappearances
and acts of torture.
But, at the same time, given the
complexity of these big trials still conducted by special courts,
it is fundamental that all conditions be assembled to ensure fair
trials and the respect of the rights of the defence. In this respect,
we note the principle of abolition of the special courts after the
amendment of Articles 250, 251 and 252 of the Code on Criminal Procedure,
as part of the 3rd judicial reform package of July 2011. However,
we observe that the big ongoing trials, such as Ergenekon and KCK, continue
to be conducted in special courts.
35. It should also be pointed out that the army’s withdrawal seems
to have been met with a positive response from the public – this
is a move towards reinforcing civilian control. However, some observers
and media are speculating about the deeper implications of this
development – closer alignment with the standards of the western
democracies or a new stage in the reinforcement of the authority
of the regime? – and also point out that all traditional checks
and balances are being gradually eroded – such as the press and
the powers of the judiciary.
2.2.3. Religion and secularism
36. At this historical moment, when some aspects of the
Turkish Republic founded by Atatürk are being redefined, the defence
of secularism remains a significant dividing line in society. Strongly
supported by the Kemalist opposition, part of the population fears
that the adoption of new legislation and measures is a reflection
of a political will to strengthen the position of Islam in society.
The defence of secularism seemed thus to be challenged when the
Higher Education Council (YÖK) asked lecturers not to exclude women
wearing the Islamic headscarf from university (despite the 2008
Constitutional Court decision banning the wearing of the headscarf
in universities, taking the same line as the European Court of Human
Rights in the Leyla Şahin v. Turkey judgment
of 10 November 2005). The newly set up rules of January 2011 regulating
the sale of tobacco and alcohol were also perceived as a new attack
on these freedoms.
37. In addition, the position of religion in the context of the
educational reform has also led to fears and comments, not only
coming from the opposition: this reform has resulted in an increase
in the duration of compulsory schooling, which is now split into
three periods of four years each (the so-called “4+4+4” system
), which
is positive. However, it also allows Turkish pupils to enter “Imam
Hatip” sections from junior secondary level. Although, as the Turkish
delegation indicates, “Imam Hatip schools are official schools that
are subject to the Ministry of Education... and employ the regular
school curriculum designated by the Ministry in addition to offering
extra hours of religious education classes”,
under these circumstances, as the opposition
states and part of public opinion fears, a slow process of strengthening
of Islam could undermine the principle of secularism.
38. The opposition and some sections of society are expressing
fears about growing control of the State. As indicated by the opposition
in its comments, a series of nearly 40 decree laws issued in 2011
could “transform the administration … towards partisanship”, one
example being “the decree law according to which two thirds of the
members of the Academy of Sciences are now appointed by institutions
under direct Government control”.
It
has to be said that some meetings in universities did give this
impression.
39. The nature of the ruling regime, which the Prime Minister
describes as “democratic conservative”, continues to raise questions,
in Europe in particular.
40. The influence of the Gülen Movement – an Islamist movement
led by an imam and scholar, Fethullah Gülen, who is in voluntary
exile in the United States – that is said to have infiltrated public
institutions and to seek to exercise an influence in society, was
an issue raised by many persons with whom I have spoken over the
last two years.
2.2.4. Political prospects
41. The year 2013 will be a pivotal year for Turkey,
in the run-up to the local (2014), presidential (2014) and parliamentary
elections (2015). The AKP in particular will have to give fresh
impetus to the party: many parliamentarians will not be able to
stand in 2015 because of the internal AKP rule limiting the number
of parliamentary mandates to three.
42. Following the 2007 constitutional reform, Turks will for the
first time be electing the President of the Republic by direct universal
suffrage in 2014, which will give him reinforced legitimacy and
authority, whatever the results of the work on constitutional reform.
In June 2012, the Constitutional Court ruled that after his current
seven-year mandate, President Gül will be authorised to stand for
the next elections for a five-year term. Differences of opinion
have emerged between President Gül and Prime Minister Erdoğan over
the past few months on a number of issues, such as the lifting of
the parliamentary immunity of members of parliament, in rivalry
which might reflect presidential ambitions on the part of both politicians.
43. The year 2013 should see the preparation of a draft constitution,
which would be put to referendum. This is a phase which is crucial
for Turkey’s ongoing political and democratic evolution and the
adoption of a civilian-oriented constitution, and which should guarantee
respect for the rights and fundamental freedoms deriving from the
obligations entered into by Turkey, a founding member of the Council
of Europe. One of the options discussed, at the initiative of the
AKP, could be the creation of a “presidential regime”, which would
increase the powers of the President of the Republic.
44. Prospects are currently emerging for settling the Kurdish
question, with the resumption of talks between the secret services
and the PKK leader, Abdullah Öcalan, since December 2012. These
talks seem to be backed by virtually all the political parties,
apart from the nationalist party MHP. This is an opportunity to
lay the foundations for ending this conflict, which has caused tens
of thousands of deaths on both sides. This initiative, politically
spearheaded by the AKP, should also promote a process of appeasement
of the southern and south-eastern populations, given the complicated
situation after the Uludere events.
The
possible lifting of the immunity of BDP parliamentarians following
their encounter with PKK activists in August 2011
could
further raise tensions.
45. Lastly, there is some hope of relaunching Turkey’s European
integration process, which is currently being blocked by several
European Union member States in connection with the opening of new
negotiation chapters. They were halted during the Cypriot presidency
of the European Union in the second semester of 2012, due to the
Turkish boycott. Tangible progress is expected from both sides to
relaunch the process of European integration, to which Turkey remains
attached, despite the procrastination and obstacles which exist in
such rapprochement.
3. International relations
46. In view of Turkey's geopolitical situation, I consider
it worth mentioning, for information, the main thrusts of the country's
foreign policy. This is necessary to define and understand the global
context.
47. Turkey is a regional power that is repositioning itself. Turkish
foreign policy was principally focused on the country's special
relationship with the West (the United States, NATO, the European
Union), and Turkey is a member of the principal Euro-Atlantic institutions.
A turning point came with the arrival in power of the AKP in 2002
and the appointment of Ahmet Davutoğlu as Minister of Foreign Affairs
in May 2009. Turkey became extremely active on a number of fronts,
taking advantage of its geographically strategic location between
the energy producer and consumer countries, its growing prosperity
and its status as a secular, democratic Muslim State to establish
itself as a regional power. Its multilateral foreign policy targets
both West and East. Turkey's doctrine of “zero problems” with its
neighbours was the key to the new strategy and the linchpin of the
role it wished to play at regional level. It is also extending its
co-operation to the countries of Africa.
48. In May 2010, Foreign Minister Ahmet Davutoğlu summarised the
objectives of Turkey's “zero problems” foreign policy for the next
decade: fulfilling all the conditions for European Union accession
and becoming an influential member of the European Union by 2023;
continuing to promote regional integration through security and
economic co-operation; being an influential broker in resolving
regional conflicts; taking an active part in all international forums;
playing a key role in international organisations and becoming one
of the 10 largest economies in the world.
3.1. Changing relations
with the West
49. The special relationship between Turkey and the United
States became strained in 2003 when Turkey refused to allow US troops
to pass through its territory to enter Iraq. The visit by US President
Barack Obama in April 2009 reactivated bilateral relations. However,
relations again became troubled in 2010 when the US Chamber of Representatives
adopted a draft “resolution on the Armenian genocide”. Their relations
also suffered from the position adopted by Turkey on the Iranian
civil nuclear issue: the United States was upset by the Tehran Declaration
and was disappointed at Turkey’s vote in the United Nations Security
Council on 11 June 2010 against the resolution imposing new sanctions
on the Tehran regime. Today, contacts between the United States
and Turkey are intense, especially on regional issues, Syria and
Iraq being the main common concerns.
50. Turkey was the first State with a Muslim majority population
to recognise the State of Israel in 1948. In 1996, a number of strategic
agreements were signed, but relations came under strain after Israel’s
attack on Gaza in 2008. In January 2009, at Davos, Turkey's Prime
Minister publicly condemned the Gaza War. The most serious incident
was the operation launched by the Israeli army on 30 May 2010 against
the humanitarian flotilla of the Free Gaza Movement and the Foundation
for Human Rights and Freedoms and Humanitarian Relief (IHH), which
was seeking to break Israel's blockade of the Gaza Strip. Nine Turkish
citizens were killed by the Israeli army during the raid. This was
followed by the Turkish authorities' firm condemnation of the attack and
a clear shift in relations with Israel.
3.2. Turkey's multilateral
base
51. Turkey has a solid base in multilateral co-operation
as a founder member of the United Nations (1945), the Council of
Europe (1949) and the Organisation for Economic Co-operation and
Development (OECD) (1960), and a member of North Atlantic Treaty
Organisation (NATO) since 1952, of the Organization for Security
and Co-operation in Europe (OSCE) since 1973, of the Black Sea Economic
Cooperation since 1992, of the World Trade Organization since 1995
and of the G20 since 1999. It participates in the Union for the Mediterranean.
52. Recently, Turkey simultaneously presided over two of the Council
of Europe’s bodies: in 2010 and 2011 Mevlüt Çavuşoğlu was President
of the Parliamentary Assembly, and Turkey chaired the Committee
of Ministers from November 2010 to May 2011. President Gül was a
member of the Assembly for almost ten years.
53. Turkey has also been an associate member of the European Union
since 1963. In October 2005, the European Union opened negotiations
to admit Turkey, but, so far, only 13 of the 35 chapters on which negotiations
must take place have been opened, and only one closed. Turkish popular
support for EU accession seems to be waning: whereas 73% of respondents
considered EU membership to be a good thing in 2004, the number
had dropped to 38% in 2010.
In 2013, the discussions could however
resume with the possible opening of Chapter 22 of the accession
negotiations, related to regional policy and co-ordination of structural
instruments.
54. In the second half of 2012, Turkey decided to freeze its relations
with the Cypriot presidency of the European Union and, in particular,
did not participate in any of the meetings chaired by that presidency.
55. On 16 May 2012, the Commissioner for Enlargement launched
the “Positive Agenda” and set up eight working groups to make progress
on the reforms in the areas where there is an agreement between
Turkey and the European Union. Turkey is the only candidate country
not to have been granted visa liberalisation. Brussels is demanding
better border controls and checks on irregular migrants.
56. The European Commission’s 2012 progress report, which is particularly
critical on questions relating to fundamental freedoms, has been
given a less than warm welcome by Turkey, which regards it as biased.
The Minister for European Integration, Mr Egemen Bağış, has, incidentally,
produced his own progress report for 2012.
3.3. Relations with
neighbouring countries
57. The Syrian crisis has led to a number of developments
in Turkey. Its effects are many and varied for Turkey, notably because
it had to face the arrival of 184 585 refugees as at 27 February
2013 (see below), but also from military personnel who have deserted
Syria’s regular army and, in particular, gone to the Apadyn camp,
which has perhaps become a possible fallback base for the rebel
army. [It should be recalled that relations with Syria were originally
poisoned by Syrian support for the Kurdish PKK rebels. In October
1998, already, the two countries were on the verge of a military
clash. The Adana Accords (1998) enabled closer ties to be initiated
in 2001 and 2002. Turkey then became one of Syria’s main economic
partners, Syria opening up a corridor that was very important for
Turkey’s ability to access eastern markets. The two countries also have
similar situations in their population structure: significant Kurdish,
Alawite/Alevite communities. In addition, Syria enabled Turkey to
play the role of broker in talks on the Golan Heights between Israel
and Syria, which have been suspended for the time being following
the Gaza conflict of 2008. The instability and repression in Syria
had an immediate impact on Turkey. When the protests against the
Damascus regime were gathering pace, the Turkish Prime Minister
endeavoured to persuade the Syrian president to meet the population’s
reform aspirations. The rift occurred in August 2011. The criticism
from Ankara then intensified. Turkey subsequently became increasingly
active on the international stage, by hosting a large number of multilateral
meetings, taking in civilian and military members of the Syrian
opposition and doing a great deal to help the Syrian refugees arriving
in large numbers. The downing of a Turkish fighter jet near the
Syrian coast in June 2012 brought further pressure. On 3 October
1992, five Turkish citizens were killed as a result of cross-border
artillery fire on Akçakale by the Syrian army. After both incidents,
the North Atlantic Council was called for consultations by Turkey
under Article 4 of the NATO Treaty. In January 2013, based on the
North Atlantic Council decision of 4 December 2012, NATO began to
deploy Patriot missiles in the south of the country at Turkey’s
request to protect Turkish territory from possible Syrian missile
strikes. The United States, Germany and the Netherlands are taking
part in this operation and sent six Patriot batteries in total together
with relevant military personnel. Turkey
intends to play a key role in talks both with the Syrian opposition
and with Russia to find a transition solution and thus put an end
to the conflict.
58. Since 2009, based on its “zero problems with neighbours” policy,
Turkey established new mechanisms, like “High Level Strategic Cooperation
Councils” with 12 countries (Azerbaijan, Bulgaria, Egypt, Greece,
Iraq, Kazakhstan, Kyrgyzstan, Lebanon, Pakistan, Russian Federation,
Tunisia and Ukraine). Turkey has also lifted visa requirements with
many countries, seeking to ensure more people-to-people contacts.
59. The winds of democracy blew through several countries in the
region (Tunisia, Egypt, Libya, Syria and Yemen) during the Arab
Spring of 2011. This movement is providing Turkey – which is certainly
a major economic power and has developed many political, diplomatic
and commercial ties with these countries
– with an opportunity to reposition
itself. Today, Turkey can be a “source of inspiration” for the Arab
countries, proposing a political model that reconciles religious
belief with a democratic State. Its position in the Middle East
is more than ever that of a regional power which has a vital role
to play.
60. The situation in Cyprus is deadlocked. Since 1974, Turkey
has been occupying 37% of Cypriot territory, north of the Green
Line, and has 40 000 soldiers on the island. The northern portion
of the island was proclaimed an independent republic, the “Turkish
Republic of Northern Cyprus (TRNC)”
in
1983. This zone is entirely dependent on Ankara's political support
and economic aid (US$400 million/year). This zone has received diplomatic
recognition only from Turkey. Turkey wishes to dissociate the issue
of Cyprus from the European Union accession process and considers
that its resolution is a matter for the United Nations. It backed
the Annan Plan of 2004, which was rejected by Greek Cypriots, who
voted 76% “No” in the referendum held in April 2004. Turkey wants
a global solution to the issue under the auspices of the United
Nations. However, in a report of November 2010, the European Commission
noted the lack of progress in normalising bilateral relations with
Cyprus and stated that Turkey had not met its obligation of full,
non-discriminatory implementation of the Additional Protocol to
the Association Agreement and had not removed all obstacles to the
free movement of goods, including restrictions on direct transport
links with Cyprus.
In
2012, the European Commission expressed regret that Turkey had continued
to “issue statements objecting to drilling operations carried out
by the Republic of Cyprus and threatening retaliation against oil
companies that would participate in Cypriot exploration”.
Turkey indicated that they have complained
about violations of Turkish territorial waters in the Aegean sea
by Greek naval/coast guard vessels.
Greece
and Cyprus, for their part, have made a large number of formal complaints
about continued violations of their territorial waters and airspace,
including flights over Greek islands
by Turkish
planes.
61. Relations with Greece have improved since George Papandreou
came to power in 2009. Turkish Prime Minister Erdoğan visited Greece
in May 2010. Exploratory talks with a view to settling the Aegean
Sea disputed areas, the issue of the Greek minority in Turkey and
the Turkish minority in Greece and action against illegal immigration
are ongoing. The last explanatory talks were held on 28 January
2012. The recent meeting between the Turkish Prime Minister, Mr
Erdoğan, and the Greek Prime Minister, Mr Antonis Samaras, on 1 March
2013 in Athens, could paved the way for an enhanced dialogue.
62. The reconciliation process with Armenia has slowed down. The
so-called “football diplomacy” led to reciprocal visits by Presidents
Gül and Sarkisian in 2008. Protocols on “the Establishment of Diplomatic Relations
between Armenia and Turkey” and on “the Development of Bilateral
Relations between Turkey and Armenia” were concluded and signed
in Zurich in October 2009. The setting-up of a committee of Turkish, Armenian
and Swiss historians to study the “events of 1915” (“the Armenian
genocide”) was proposed – but did not happen. However, the ratification
of the protocols is today blocked. Turkey first wishes to see some progress
in the frozen conflict in and around Nagorno-Karabakh involving
Armenia and Azerbaijan.
The
state of relations with the Armenians is closely linked to Turkey's
relationship with Azerbaijan. It should be pointed out that the
historical issue of the “1915 events” (and the recognition of the
“Armenian genocide”) remains a major obstacle in the reconciliation
of Turkey with Armenia.
63. Concerning the relationship with Iraq, many high-level bilateral
visits have taken place in the last few years. Trade between the
two countries has steadily increased. The Turkish authorities and
the Kurdish authorities in northern Iraq have strengthened their
ties in the last few years. Although Ankara believed, before 2009,
that a regional Kurdish government in northern Iraq could reinforce
the Kurds’ strivings for autonomy in Turkey, the self-government
of the Iraqi Kurds and the existence of an autonomous political
entity, as laid out in the Iraqi constitution, named Kurdistan,
are now once and for all recognised by Turkish diplomacy.
64. Relations between Turkey and Iran are sometimes complex. The
countries are two major competing powers and economically interdependent.
Close by are Afghanistan and Pakistan: a supply of natural gas for Turkey
and access to the Black Sea and Europe for Iran. Turkey’s relationship
with Iran is today one of “measured co-operation”. The AKP government
has adopted a positive attitude to Iran that has had tangible results
in terms of trade (US$22 billion in 2012) and human exchanges (1.9
million Iranians travelled to Turkey in 2011). Turkish diplomacy
defends Iran’s right to develop a nuclear programme and has devoted considerable
efforts to keeping alive the prospect of an agreement with the international
community. The 17 May 2010 Turkish-Brazilian declaration
and
the proposals to enrich Iranian uranium came as a surprise, and Turkey
opposed the toughening of sanctions against Iran in the United Nations
Security Council shortly afterwards. In its relations with Iran,
energy is a fundamental issue (30% of Turkish petroleum comes from
Iran, which also supplies a third of the country’s gas). It should
be noted, however, that the deployment of Patriot missiles in January
2013 was considered a provocation by Tehran, which regards this
as a threat.
3.4. Turkey's regional
strategy
65. The authorities have stated their intention to reposition
Turkey at the centre of regional politics in the Middle East, the
Balkans, the Caucasus and Central Asia, to be a “global player”
and to increase the number of its diplomatic representations in
the world.
66. Concerning the Middle East, the aim is to stabilise a region
with multiple problems (the end of the Syrian conflict, the position
of the Hezbollah in Lebanon), to foster the peace process between
Israel and the Palestinians, and to secure access to the Red Sea
and Arabia by reinforcing co-operation with Jordan. Turkey is thus
turning again towards the Muslim world and aiming to position itself
as a leader of Sunni Islam. Turkey has sought to activate a new
dynamic of co-operation and dialogue in the region after the uprisings
of the “Arab Spring”.
67. For Turkey, the Balkans are an important area of influence,
owing to their shared historical heritage and the presence of numerous
minorities of Turkish origin (in Bulgaria, Romania, “the former
Yugoslav Republic of Macedonia”, Kosovo,*
Albania, Bosnia and Herzegovina, etc.).
It therefore has a very strong diplomatic presence and a desire
for economic expansion (significant presence of Turkish companies
on major projects in the region: construction and public works,
building of airports, roads, etc.) and cultural expansion. It supports, either
directly or indirectly, the Balkan countries’ membership of the
European Union and NATO. As far as this area is concerned, it is
also worth noting the improvement in relations with Greece.
68. In the South Caucasus, Turkish policy is aimed at fostering
a balance between Georgia and Russia and the resolution of the region's
“frozen conflicts” (conflict in and around Nagorno-Karabakh involving
Armenia and Azerbaijan). Turkey has very good relations with Azerbaijan
(“two States, one nation”). Energy constitutes an important component
of the bilateral relations, as a result of the implementation of
the two pipeline projects, namely the Baku-Tbilisi-Ceyhan oil and
the Baku-Tbilisi-Erzurum natural gas pipeline projects.
69. Regarding Iran, and the resolution of the nuclear issue, Turkey
has sought to adopt a conciliatory attitude favouring dialogue (see
above).
70. In Central Asia, the Turkish administration's policy has been
a more qualified success. Relations with countries in the area tend
to be bilateral in nature.
71. With regard to the Black Sea, in 1992 Turkey was the instigator
of the Organisation of the Black Sea Economic Cooperation (BSEC),
which has 11 member States.
3.5. A new energy diplomacy
72. Turkey is a major transit country for gas and oil
supplies between East and West. Projects currently under way are
the BTC (Baku-Tbilisi-Ceyhan) gas pipeline, the BTE (Baku-Tbilisi-Erzurum)
oil pipeline, the Nabucco gas pipeline (2009), the trans-Anatolian Pipeline
TANAP (which will transit gas to Europe via the West Nabucco pipeline
or the trans-Adriatic Pipeline TAP (to southern Italy via Greece)),
the Turkey-Greece natural gas interconnector, the Caspian-Austria
link via Turkey, Greece, Bulgaria, Hungary and Romania, the South-Stream
project (a competitor of Nabucco), which is scheduled for implementation
in 2018, supported by the Italians and the Russians and will link
Russia and Bulgaria, the TGI (Turkey-Greece-Italy) gas pipeline
and the TAP pipeline.
73. A new relationship with Russia is being developed, although
rivalry subsists in the Caucasus, Central Asia, the Black Sea region
and even the Balkans. Relations are being stepped up in the field
of energy co-operation.
74. In conclusion to these preliminary observations, it seems
that the closing of the monitoring procedure concerning Turkey in
2004 paved the way for the opening of negotiations with the European
Union, which must be a cause for satisfaction. However, the prospect
of Turkish EU accession has become somewhat blurred in recent years.
A number of factors account for this: the stated reluctance of some
EU member States, enlargement “fatigue” within the Union, the economic
crisis, the deadlock over Cyprus, a sense that negotiations with
the European Union are becoming bogged down and weariness of part
of Turkish public opinion. There could be a risk that the lack of
a prospect of Turkish integration in the European Union as an economic
and political partner will undermine the desire for Europe. It is
to be hoped that this process will be relaunched in 2013, with the
announced opening of a new chapter of the accession negotiations
(chapter 22) with the European Union.
4. Functioning of
democratic institutions
4.1. Constitutional
reform
75. In its
Resolution
1380 (2004) the Assembly invited Turkey to “carry out a major reform
of the 1982 Constitution, with the assistance of the Venice Commission,
to bring it into line with current European standards”.
4.1.1. The constitutional
referendum of 12 September 2010
76. The adoption of the constitutional amendments package
on 12 September 2010 paved the way for:
- the appearance before civil courts of members of the military,
including officers, and persons accused of crimes against the security
of the State or the constitutional order (with the jurisdiction
of military courts henceforward being limited to crimes and offences
committed in the performance of military duties);
- the possibility of appeal for officers dismissed from
the army;
- the opening of the trial of the leaders of the coup d’état
of 12 September 1980;
- increasing the number of members of the Constitutional
Court from 11 to 17, three of whom would be appointed by parliament
and 14 by the President of the Republic;
- increasing the number of members of the High Council of
Judges and Prosecutors (a council supervising the judiciary) from
7 to 21: 4 members of the High Council of Judges and Prosecutors,
and the latter’s Secretary General, are now appointed by the President
of the Republic and 10 members (out of 21) are elected by more than
10 000 judges and prosecutors of first instance;
- granting new rights to civil servants (including the right
to collective bargaining);
- positive discrimination vis-à-vis individuals requiring
social protection, such as women, children and the elderly;
- the establishment of the institution of ombudsman;
- establishing the right of individual appeal to the Constitutional
Court in matters falling under the scope of the European Convention
on Human Rights (ETS No. 5, “the Convention”);
- the restriction of military jurisdiction. Constitutional
guarantee to prevent civilians from being tried by military courts;
- constitutional guarantees for the protection of personal
data;
- constitutional guarantees to protect children’s rights.
77. These amendments were intended to eliminate several shortcomings
referred to in the judgments of the European Court of Human Rights,
and to satisfy a whole series of recommendations put forward by
the Commissioner for Human Rights, the Venice Commission, the European
Commission against Racism and Intolerance (ECRI), the Monitoring
Committee of the Assembly, the United Nations Committee on the Elimination
of Discrimination against Women, the United Nations Committee on
the Elimination of Racial Discrimination and several other international
supervisory bodies as well as those indicated in progress reports and
on other occasions.
78. The adoption of these amendments was followed by an Action
Plan covering the legislative changes required by the constitutional
amendment package that included new laws as well as amendments to
existing laws, concerning
inter alia the
establishment, duties and functioning of the institution of ombudsman,
the creation of the Turkish Human Rights Institute and an anti-discrimination
and equality board (yet to be set up), the law on the High Council
of Judges and Prosecutors (adopted by parliament on 11 December
2010 after consultation of the Venice Commission
), personal data protection, the law on
civil service unions, the law on the establishment and working procedures
of the Economic and Social Council, and the law on the establishment
and procedural rules of the Constitutional Court adopted by parliament
on 30 March 2011. Prime Minister Erdoğan had stated that the provisions
of the new constitution must not fall short of the improvements introduced
via the referendum.
79. This constitutional reform was welcomed by the Council of
Europe, the European Union and the international community. However,
the referendum was not preceded by a wide-ranging consultation process involving
political parties and civil society in the broad sense, a fact which
the European Commission also regretted in its progress report of
November 2010, pointing out the essential need to implement these
reforms in an open and transparent way and in accordance with European
standards and that further significant efforts remain necessary
in the sphere of fundamental rights.
80. The referendum on constitutional reform of 12 September 2010
initiated by the government of Prime Minister Erdoğan resulted in
a 58% vote in favour. The opposition Republican People’s Party (CHP)
rejected the reform as a whole because of its opposition in principle
to two amendments (of the 26 put to a referendum) enlarging the
composition and modifying the functioning of the Constitutional
Court and the High Council of Judges and Prosecutors. Furthermore,
this referendum was not in compliance with the relevant recommendations
of the Venice Commission, insofar as several amendments had been
put to a vote which required a single response.
81. The constitutional amendments of 12 September 2010 constitute
a first positive step – despite the reserves made on the referendum.
A more substantial constitutional reform is already on the political
parties' agenda. In this connection, it can be recalled that, in
its
Resolution 1622 (2008) on the functioning of democratic institutions in Turkey:
recent developments, the Assembly underlined the evident need for
a new constitution, which should give rise to a “broad national
debate involving all actors of society ... guarantee an appropriate
system of checks and balances and give a prominent place to the
protection of human rights and fundamental freedoms, in line with
European standards, in order to fully ensure the democratic functioning
of Turkey’s institutions and the consolidation of its modernisation
and reform process.”
4.1.2. Drafting of a new
constitution: progress of the work
82. The drafting of a new constitution was one of the
key pledges made by the AKP in the 2011 election campaign. A “constitutional
conciliation committee”, chaired by the Speaker of the Turkish Parliament,
Cemil Çiçek, began work on 19 October 2011. I have on more than
one occasion drawn attention to the exemplary composition of this
committee (3 members and 2 experts for each of the 4 political groups
represented in parliament), which set out to prepare a draft constitution
on a unanimous basis by the end of 2012.
83. The conciliation committee has carried out a remarkable consultation
exercise encompassing all the driving forces in Turkish society.
The initial phase of the work of the committee and its three thematic
sub-committees, which ended on 30 April 2012, was used to gather
data and canvas opinions across a wide section of the public.
Nearly
65 000 contributions from citizens or civil society organisations
were submitted to the committee.
84. Since 10 May 2012, the committee has begun drafting the new
constitution. The Prime Minister had set 31 December 2012 as the
deadline. At the end of 2012, the Speaker of the Parliament explained
that the committee had discussed 71 constitutional articles. In
the case of 23 of them, it had been able to reach a consensus. In
the remaining articles, the various options had been placed in brackets
and would be renegotiated. After consulting the leaders of the political
groups, Mr Çiçek announced that the conciliation committee would
continue operating beyond 31 December 2012, for a “reasonable” period
– with mention being made in some quarters of March or April 2013.
The draft constitution should then be submitted to public consultation,
revised by parliament and put to referendum for adoption. On 19
February 2013, the committee decided to increase its working hours
to seven hours per day, five days a week to speed up the drafting process.
85. My contacts with the Chair of the committee (and of Turkey’s
Grand National Assembly) and several members of the committee have
shown me the extent of all committee members’ determination to continue
this work, despite some obvious sticking points and differences
of opinion. Quite understandably, the committee is struggling to
reach a consensus on the key issues that are apt to divide Turkey’s
political parties and/or Turkish society, such as the definition
of citizenship, the place of the family in the Constitution, secularism,
and above all the kind of regime that Turkey would wish to have:
- We note that the pro-Kurdish
party BDP has put forward a proposal for a State based on “democracy autonomy”
and the organisation of the country into 25 “autonomous regions”,
according to a system based on the Scottish model.
- Otherwise, the proposed “presidential system” presented
by the AKP in November 2012, and inspired by the American and French
systems, has provoked strong reactions and brought discussions within
the committee to a standstill, all the opposition parties having
expressed their disapproval. The parameters of such a system, which
has the backing of Prime Minister Erdoğan, still have to be determined
and clarified. The Prime Minister’s statements on 17 December 2012
about the separation of powers, to the effect that this would prevent
the government from providing better services to citizens, have
fuelled some fears.
86. It is for Turkey to define the parameters of its future democratic
system while at the same time ensuring the institutional balance
of powers, the existence of countervailing powers, and respect for
everyone’s fundamental rights and individual freedoms. I can only
commend all political forces in Turkey for their efforts drafting
a new democratic constitution and
encourage the Turkish Parliament to press ahead with its constitutional
work and its consultation exercises, and to work closely with the
Venice Commission to ensure that the draft constitution, which is
submitted to the Turkish Parliament for approval, meets democratic standards.
4.2. Elections
87. In its
Resolution
1380 (2004), the Assembly invited Turkey to “amend the electoral
code to lower the 10% threshold and enable Turkish citizens living
abroad to vote without having to present themselves at the frontier”.
88. I note that the threshold requiring parties to win at least
10% of the votes cast nationally before they can be represented
in parliament has not been modified. I mentioned this in January
2011 to the President of the Constitutional Court and to the Minister
of Justice, who indicated that no change would take place before
the elections in June 2011. When he addressed the Assembly on 13
April 2011, Prime Minister Erdoğan expressed the view that the 10%
threshold “did not call Turkish democracy into question” and it
continued to be applied “for the stability and the security of Turkey”.
He stated that the Turkish Government would reduce the 10% threshold
when the time was right but it was really a decision for the people.
89. The required threshold of 10%, by far the highest among the
47 member States of the Council of Europe, was indeed introduced
to guarantee stability by avoiding excess fragmentation within parliament.
It in fact restricts the representation of political parties in
parliament. Many people believe that it was introduced with the Democratic
Society Party (DTP) – and its mainly Kurdish electorate – in mind,
so as to prevent its election to parliament.
90. In its
Resolution
1705 (2010), while acknowledging that “there is a variety of types
of electoral systems throughout Council of Europe member States
and each of them has advantages and disadvantages”, the Assembly
called on member States to “consider decreasing legal thresholds
that are higher than 3%, and removing other obstacles, including
high financial deposits, which bar minor parties or independent
candidates from being represented in elected bodies”.
91. In its Yumak and Sadak v. Turkey judgment
of 8 July 2008, the European Court of Human Rights examined the
compatibility of the 10% electoral threshold with the right to free
elections (Article 3 of Protocol No. 1) in the context of the 2002
elections. The Court considered that “in general a 10% threshold
appears excessive” and concurred with the Council of Europe bodies
that had stressed the threshold's exceptionally high level and recommended
that it be lowered. It found that “[i]t compels political parties
to make use of stratagems which do not contribute to the transparency
of the electoral process”.
92. In the case before it, however, the Court was not persuaded
that “when assessed
in the light of the specific
political context of the elections in question, and attended
as it is by correctives and other guarantees which have limited
its effects in practice, the threshold has had the effect of impairing
in their essence the rights secured to the applicants by Article
3 of Protocol No. 1” (the emphasis is mine) and found no violation
of this article. In the instant case, therefore, the Court recognised
that States have a margin of discretion
and allowed that the
10% threshold under Turkish law served a legitimate aim (avoiding
excessive parliamentary fragmentation and facilitating the emergence
of a governing majority), attended by guarantees and correctives (the
possibility of standing as an independent candidate, enabling the
election of a number of Kurd members of parliament).
93. In my capacity as a member of the Council for Democratic Elections
of the Venice Commission, I would point out that a threshold of
around 6% has been recommended. I personally consider that in a
democratic society it is essential to respect the voters' will and
hence to guarantee the effective participation of legal political
parties representing them. I would also point out that, when he
addressed the Assembly in 2007, President Abdullah Gül undertook
to reduce the 10% threshold and I regret that no progress has been
made since. I do not have the impression, from my dealings with
the majority party, that any changes are planned in this area, even
though they have been called for by the opposition parties within
the framework of the discussions on the new constitution.
I note that 95% of the votes cast (on
a turnout of 87%) in the June 2011 parliamentary elections resulted
in parliamentary representation and that the 10% threshold does
not apply to independent candidates. Under the Constitution, moreover,
members of parliament do not represent the province or electoral
district where they were elected but rather society as a whole.
It will be up to Turkey to determine its own electoral system. I
note, however, that political representation in Turkey has really
become much more stable over the past 10 years, which should enable
the Turkish authorities to consider lowering the electoral threshold,
as other countries have done,
and
to thus widen the participation of the major political parties –
which play a key role in democracies – within parliament. That would
constitute a strong policy initiative and would clearly send an
important signal vis-à-vis the Kurdish population. I would therefore
invite the Turkish authorities to act on the recommendations of
the Venice Commission and to lower the electoral threshold at the
time of the next constitutional review.
94. Concerning voting by Turkish nationals living abroad, I first
note with satisfaction that this is possible: Article 67 of the
Constitution, and the subsequent Decree 4121 of 23 July 1995, establish
the statutory foundations of practical measures to this end.
As I stated in the report I submitted
to the Council for Democratic Elections on 16 June 2011, granting
this right fosters the development of national and European citizenship
even
if the right to vote abroad is not guaranteed
ipso
facto by Protocol No. 1 of the European Convention of
Human Rights.
95. At the time of the last elections on 12 June 2011, I had regretfully
noted that there were
de facto restrictions
on the exercise of this right granted to Turkish nationals living
abroad since they are required to present themselves at the border
in order to vote. Postal voting was ruled out by the Constitutional
Court in May 2008 on the ground that an amendment to the Elections
and Electoral Lists Act in March 2008 was unconstitutional.
In 2011, the Turkish authorities
had to abandon organising voting in diplomatic missions following
a decision by the Supreme Election Board in late February 2011 that
the infrastructure could not be put in place on time. This decision
was criticised by the AKP, the CHP and civil society groups. I would
also point out that, in January 2011, the Ministry of the Interior
announced that security conditions in diplomatic missions in Germany
prevented the organisation of voting there.
96. In May 2012, the Turkish Parliament enacted amendments to
the Law on Elections to enable more than two million Turkish voters
(that is 5% of the total electorate) living abroad to vote in the
forthcoming presidential elections in 2014. This move is to be applauded
in my view.
4.3. Local democracy
97. In its
Resolution
1380 (2004), the Assembly invited Turkey to “reform local and regional
government and introduce decentralisation in accordance with the
principles of the European Charter of Local Self-Government (ETS
No. 122); as part of the reform, to give the relevant authorities
the necessary institutional and human resources and arrange redistribution
of resources to compensate for the underdevelopment of certain regions, particularly
south-east Turkey”.
98. With regard to development of local and regional democracy,
I refer to Recommendation 301 (2011) adopted by the Congress of
Local and Regional Authorities on 24 March 2011, which draws attention
to many difficulties, including in particular:
c. the way that the existing criminal and anti-terrorism
legislation is being implemented has a disproportionately destructive
effect on the functioning of local and regional democracy in Turkey
and the human rights of local and regional elected representatives;
...
f. the new Villages Law has not yet been finalized despite
the fact that many former municipalities have lost that status and
become villages through the recent Law on Establishing Districts
in the Borders of Metropolitan Municipalities and Making Amendments
in Some Laws No. 5747 of 2008;
g. the law anticipated in 2005 on municipal revenues has
not yet been enacted and the enactment of the more limited Law on
Allocations from Tax Revenues under the General Budget to Special
Provincial Administrations and Municipalities No.5779 has left municipalities
even more heavily dependent upon centrally determined grants and
introduced new financial disciplines;
h. the Special Provincial Administrations still have no
access to any “own resources” for their funding which varies substantially
from one province to another;
i. although the Governor has been removed from the presidency
of the general council, his position remains distinctly anomalous
as the chairman of the Special Provincial Administrations executive committee
and puts the autonomy of provincial government into question in
a situation where the Special Provincial Administration’s chief
executive is, in effect, an appointee of the central government;
j. due to the high degree of involvement of Governors
in Special Provincial Administrations, Governors appear to be the
representatives of their Special Provincial Administrations in the
Union of Special Provincial Administrations;
k. the overlapping roles of officials who hold (or have
held) office in the Ministry but also serve the Union and/or the
Turkish Delegation to the Congress which may be reducing the institutional
distance between the Ministry and municipalities and thus (adversely)
affecting the distinctive relationship between the two;
l. although the decision-making bodies of the Union are
democratically elected and allow different political parties to
be represented, the statutory requirement that all municipalities
be obliged to be members of the national Union of Turkish Municipalities
has been maintained, lending it an undemocratic character in its
removal of choice from individual municipalities and causing legitimate resentment
in municipalities who feel that their particular interests and concerns
are inadequately represented by the majority of member municipalities
whose views they do not share.”
99. In the field of local democracy, despite the reforms undertaken
since 2005 and the projects developed with the European Union to
ensure their implementation,
progress appears to
have been limited for the time being. I can only encourage the Turkish
authorities to implement the recommendations of the Congress as soon
as possible and, in the context of the future constitutional reform,
to consider abolishing the provisions on administrative tutelage
(Article 127 of the current Constitution) and other laws which,
as the Congress says, remain an obstacle to the proposed general
decentralisation in Turkey. I cannot therefore subscribe to the observations
made by the Turkish delegation in its comments, to the effect that
Article 127 of the Constitution as a whole, which also regulates
the exercise of the power
of administrative
tutelage (the emphasis is mine) by the central government
over local governments, is an assurance and not an impediment to
decentralisation, in that it accords constitutional assurance to
local governments.
100. I am also convinced that continuing and increasing decentralisation
will be a key factor in Turkey’s development strategy, and also
in settling the Kurdish question.
101. The next local elections are to be held in spring 2014, when
Turkey is also due to directly elect its president. The AKP had
suggested bringing the local elections forward to autumn 2013, citing
winter weather conditions which make it difficult to conduct an
election campaign. This decision required an amendment to the Constitution.
The opposition was not against the idea, although it did object
to the proposed date. Despite the agreement of the MHP, the AKP
has not managed to obtain the qualified majority needed to get the constitutional
amendment adopted a year before the next elections.
102. While I was in Turkey in November 2012, parliament was considering
the draft law on metropolitan municipalities, adopted on 6 December
2012, which increases the number of metropolitan municipalities
from 16 to 29
and gives them bigger
budgets, the aim being, according to the AKP, to achieve a more
efficient system of municipal governance, expand the coverage of
metropolitan municipalities to 70% of the population and strengthen
municipal revenues. The new legislation involves a major reorganisation
of the local and regional authorities concerned, with municipalities
(belde) and villages in the provinces to lose their legal status as
separate entities and become districts (mahalleler) of the metropolitan
municipalities. The latter will also administer their province,
whose provincial assemblies are being abolished. In provinces where
there are no metropolitan municipalities, municipalities with fewer
than 2 000 inhabitants are being abolished and are to become districts
of municipalities. In the “Departments for Investment Monitoring
and Co-ordination” (Yatırım İzleme ve Koordinasyon Başkanlığı) set
up by the law on metropolitan municipalities, governors will be responsible
for administering the funds transferred by central government.
103. The new legislation, which involves mergers of municipalities
and electoral boundary changes a year before the upcoming local
elections, has provoked sharp protests. This issue will most certainly
be discussed by the Congress of Local and Regional Authorities of
the Council of Europe. I note that the mayor of Şişli has appealed
to the Constitutional Court against the decision to incorporate
three of the town’s neighbourhoods in the adjoining district of
Sariyer.
5. Rule of law
5.1. Reform of the judiciary
104. The Assembly is pleased to note the co-operation
Turkey has entered into with the Venice Commission to modify the
judicial system following the constitutional reform and thereby
bring its legislation into line with current European standards
in accordance with Resolution 1380 (2004), paragraph 23.i.
105. The meetings with the Presidents of the Constitutional Court
and the Supreme Court of Cassation and with the Minister for Justice
I had in January 2011 afforded an opportunity to assess the constitutional
reform approved by referendum on 12 September 2010, and in particular
the reform of the Constitutional Court and the High Council of Judges
and Prosecutors (HSYK) (whose Chair is the Justice Minister). The
Venice Commission had expressed a number of reservations not only
on the draft law on the High Council (passed by parliament on 11 December
2010) but also on Article 159 of the Constitution which sets out
details of the membership and functioning of the High Council. The
opposition fears that the arrangements for appointing members of
the Constitutional Court and the High Council will give the AKP
a strong grip on these bodies and represent a threat to their independence.
The functioning of the judicial system was also discussed, in particular
the excessive length of pre-trial detention and of proceedings,
the overburdening of the courts and the creation of regional appeal
courts. Concerning these last issues, Mr Ergin, the Justice Minister,
announced on 12 January 2011 that nine regional courts would be
set up in 2011, in addition to the three regional appeal courts
which would be financed with European Union aid.
106. With regard to the High Council of Judges and Prosecutors,
the Venice Commission acknowledged in its interim opinion
that the transfer of power from the Ministry
of Justice to the High Council and the broadening of the latter’s
composition and increase in its independence represented a considerable improvement.
However, it made a number of recommendations on revising the draft
law and certain provisions of the Constitution. These were aimed
at ensuring separation of powers between the judiciary and the executive
by replacing the appointment of the four representatives by the
President with appointment by parliament, ensuring a proper distinction
between the functions of judges and prosecutors within the High Council
and establishing a system for electing the members of the High Council
which ensured broad and pluralistic participation, making sure that
the powers of the High Council were exercised impartially and objectively
so as to avoid any suspicions of political control of the institution
and revising the powers of inspection and supervision (laid down
in Article 159 of the Constitution) which were deemed too wide and
too centralised.
108. In addition, diverse socio-professional stakeholders, including
the vice-president of the Association of Judges and Prosecutors
(YARSAV), whom I met in June 2012, routinely raise the issue of
the independence of the judiciary. It should also be noted that
in its official comments, the CHP party said that “two critical
clauses of the referendum rendered the High Council of Judges and
Prosecutors dependent on the government, and the Constitutional
Court gradually [dependent]. Any objective examination [of] the
new rules for the composition of the High Council and the Constitutional
Court can confirm this, and expectations based on promises of improvement
in practice were doomed to fail and indeed failed”. Moreover, “the
MEDEL (Magistrats européens pour la démocratie et les libertés)
report of July 2012 reflects some of the critical problems with
respect to the independent functioning of the justice system”.
109. Measures have been adopted to make the judicial system more
efficient: recruitment of judges; setting-up of regional courts
to begin operating in 2013 in 15 provinces; creation of an electronic
judicial network covering all courts, offices of public prosecutors,
law enforcement offices and the Ministry of Justice, as well as enabling
citizens to track the progress of their cases online, etc. The efficiency
of these measures will have to be assessed.
5.2. Adoption of the
3rd package of judicial reforms in July 2012
110. On 18 January 2012 the Justice Minister, Sadullah
Ergin, announced a package of judicial reforms (a hundred or so
amendments relating inter alia to
the Criminal Code, the Code of Criminal Procedure and the Anti-Terror
Law) designed to make it more difficult for courts to issue detention
orders for suspects before trial, to bring the legislation into
line with the European Convention on Human Rights and to ease congestion
in the courts. It was adopted in June 2012. Under the new legislation,
courts will be required to provide concrete reasoning why detention
is necessary. In 2011, there were about 57 000 inmates in prisons
awaiting trial or final decisions from the Supreme Court of Appeal.
The amendments also relate to Articles 6 and 174 of the Anti-Terror
Law, classify Molotov cocktails as firearms and reduce sentences
by half for those convicted of committing a crime on behalf of a
terrorist organisation without being a member of it. The reforms
have been dismissed by the opposition as ineffective however.
111. A set of reforms (called the “third package of judicial reforms)”
was thus adopted by parliament on 30 June 2012 and enacted in July
2012.
These reforms are also aimed at
easing the judiciary's workload by accelerating and hence shortening
the judicial process. To that end, amendments are being introduced
inter alia to the Criminal Code,
Code of Criminal Procedure, Anti-Terror Law, Enforcement and Bankruptcy
Law, Press Law, Law on the Council of State, Code of Administrative
Procedure, Law on the Institute of Forensic Medicine, Law on the
Court of Cassation, Law on Judges and Public Prosecutors, Law on
Misdemeanours and the Law on Criminal Records.
112. I should list here some of the highlights of this package
of reforms and new measures introduced by the authorities;
the effectiveness of their
application in the immediate and short term, however, will have
to be assessed.
- As regards
freedom of expression and media, the widely criticised Article 6.5
of the Anti-Terror Law was abolished. According to the new legislation,
“no suspension decisions will be given for publications which include
propaganda of a terrorist organisation, praise the offence or the
offender of a crime or publicly incite people to engage in crime
within the framework of a terrorist organisation’s activities”.
Suspects’ access to the investigation files will be widened. Longer
time limits to restore the balance between the rights of the victims
and securing freedom of the press will be introduced. Provisions
ordering an increase of penalties when the offence was committed
through the press or a publication have been annulled. Penalties
will be reduced for persons who are not members of a criminal organisation
but who commit a crime on behalf of that organisation. For the crime
of “violation of confidentiality”, the scope of the term “confidentiality
of investigation” will be narrowed by setting specific criteria
for breach of confidentiality of the investigation. Reporting on
investigations and prosecutions shall not constitute an offence
unless the boundaries of the reporting mission are overstepped,
and the custodial sentence will be replaced by a judicial fine.
The new law addresses any crime related to the expression of a thought or
opinion, or through the press or publications, committed before
31 December 2011 and that is punishable by a fine or a prison sentence
of less than five years: depending on the state of the proceedings,
investigation, prosecution or enforcement of the conviction will
be suspended. If the suspected journalists do not reoffend within
three years, their criminal record will be expunged. Should it not
be the case, the penalty will be imposed or the investigation continue
from where it left off.
- As regards the use of detention and judicial control, in the case of detention orders
and decisions to extend a detention order or to reject an application
for release, judges will be required to emphasise that the existence
of strong suspicion of crime, and the existence of grounds for detention
and the proportionality of the detention must be clearly indicated
and supported by concrete reasoning, case by case. It is now possible
for judges to apply judicial control for all types of crimes, regardless
of the upper limit of sentences imposed.
- As regards the fight against corruption, the law calls
for full compliance with the recommendations of the Group of States
against Corruption (GRECO) and for bribery to be redefined in a
comprehensive way so that acts regarded as an abuse of authority,
which carries a lower penalty, will in future be treated as bribery.
113. According to the Ministry of Justice, nearly 2 million cases
were likely to benefit from the new provisions contained in Law
No. 6352. The 3rd package of judicial reforms has yielded a number
of notable results, such as the release of 30 053 pre-trial detainees
between
July 2012 and January 2013, including, in July 2012, a lecturer
in constitutional law, Ms Büşra Ersanlı (expert in the BDP intra-party
constitutional committee), after over eight months in pre-trial
detention in connection with the KCK trial, the publisher, Ragıp
Zarakolu, and the former co-ordinator of the
Atilim newspaper,
Sedat Senoglu, on 6 September 2012, suspected of links with the MLKP
(Marxist Leninist Communist Party), and who had spent six years
in prison awaiting trial.
114. The 3rd package also aimed to strengthen the presumption of
innocence, and to restrict the grounds on which pre-trial detention
orders may be issued. The authorities have stated that the accused
are placed in pre-trial detention in “only 1% of these 3 million
criminal cases launched every year”. With the introduction of the 3rd
judicial reform package, pre-trial detentions will account for 23.5%
of incarcerations in December 2012.
115. The adoption on 11 April 2012 of Law No. 6291 on Probation,
which paved the way for non-custodial sentences or the release and
electronic tagging of certain prisoners nearing the end of their
sentences, has led to the release of nearly 34 000 persons on probation,
according to information supplied by the authorities in November
2012.
116. The 3rd reform package has not had the impact hoped for, however:
many prominent figures who have contested the grounds for their
incarceration and pre-trial detention (including in some major cases)
have not been released. The members of parliament, for example,
are still in prison.
117. The Minister of Justice has informed me that a 4th package
of judicial reforms was in preparation. It was submitted to the
parliament in March 2013. The aim is to remedy violations of the
European Convention on Human Rights. The new package is expected
to include amendments to the Criminal Code and to reinforce the distinction
between freedom of expression/media freedom and terrorist propaganda.
The package is therefore eagerly awaited and hopefully it will meet
expectations. In the meantime, I was informed that an “action plan on
the prevention of human rights violations” was being prepared by
the Ministry of Justice and should soon be submitted to the Council
of Ministers.
118. In the criminal justice field, the reforms have led to the
closure of 268 institutions which failed to meet international standards,
to the establishment of 68 new penal institutions (with room for
14 500 inmates), 13 of them in 2012, to more frequent use of conditional
sentences,
to the introduction of electronic
tagging or to the deferral of sentences imposed on persons who have
disabilities or are seriously ill. The incidents that occurred in
2012 in a number of prisons, however,
are a reminder that prison
overcrowding remains a problem in Turkey, including notably in the
facility in Urfa. The authorities have stated that increasing prison capacity
will be a priority for the 2013 budget. This issue is likely to
be examined this year by the European Committee for the Prevention
of Torture and Inhuman or Degrading Treatment or Punishment (CPT),
which is due to carry out a periodic visit to Turkey in 2013.
119. The exercise of fundamental rights, in particular freedom
of speech and assembly, is a major concern therefore, despite the
progress that has been made since the entry into force of the 3rd
package. I had long talks with the Minister of Justice, Mr Sadullah
Ergin, whom I applaud for his determination to pursue the necessary
reforms and incorporate the standards and case law of the European
Court of Human Rights.
It should be recalled that there is still
no legal outcome to the pre-trial detention of members of parliament
and local elected representatives. This clearly hampers the exercise
of the mandates given to these elected representatives by citizens
and requires a legislative solution.
120. I also note that the constitutional reform approved on 12 September
2010 paves the way for individual appeals to the Constitutional
Court regarding breaches of the rights enshrined in the European
Convention on Human Rights. This remedy has been available since
24 September 2012 for matters covered by the Convention, and applies
to decisions handed down by Turkish courts after 23 September 2012.
As at 28 February 2013, the Constitutional Court had received 2 967
complaints: 261 were declared inadmissible, 165 were issued an administrative
rejection and 11 were merged. No final decision has yet been made
by the Constitutional Court on the remaining complaints.
121. The Ministry of Justice has developed a “Judicial Reform Strategy”
which aims to increase the efficiency of the system and the accessibility
of justice. The number of judges and prosecutors has increased since
2002, which constitutes an important step in overcoming the problem
of congestion in the courts and excessive length of pre-trial detention
and proceedings. The Parliamentary Assembly highlights, however,
one essential notion of this new strategy, which should “make the
individual rather than the State” the focal point of the justice system.
5.3. Right to conscientious
objection and alternative civilian service
122. In
Resolution 1380
(2004), the Assembly called on Turkey to “recognise the right
of conscientious objection and establish an alternative civilian
service”. In 2009, the Assembly noted that “legislation on alternative
civil service has not yet been introduced … [and] the continuing
imprisonment of conscientious objectors in … Turkey is a matter
of serious concern”.
123. Turkish domestic law does not recognise the right of conscientious
objection and makes no provision for civilian service as an alternative
to military service. Conscientious objectors face criminal prosecution,
are liable to up to three years’ imprisonment and may be subject
to repeated convictions or held in isolation.
124. Under Article 10 of the Constitution, “all individuals are
equal without any discrimination before the law, irrespective of
language, race, colour, sex, political opinion, philosophical belief,
religion and sect, or any such consideration. No privilege shall
be granted to any individual, family, group or class.” Article 72
of the Constitution provides: “National service is the right and
duty of every Turk. The manner in which this service shall be performed,
or considered as performed, either in the Armed Forces or in public
service shall be regulated by law.”
125. In its judgment
Ülke v. Turkey, the European Court
of Human Rights concluded, however, that the many convictions and
prison sentences imposed on the applicant for refusing to do his
military service constituted degrading treatment in violation of
Article 3 of the Convention. The Court held that Turkish law contained
no specific provision regulating the sanctions provided for in the
case of individuals who refuse to do their military service on grounds
of conscience or religion and that the only rules applicable in
this area seemed to be the rules of the Military Criminal Code that
provide for punishments in general terms for disobeying the orders
of a superior.
126. It is pointed out that every State’s obligation under Article 46,
paragraph 1, of the Convention to abide by the Court’s judgments
involves the adoption of individual measures that put an end to
the violations found and remove their effects for the applicant
as far as possible, as well as general measures aimed in particular at
preventing similar violations. In addition, Article 90 of the Turkish
Constitution states that the European Convention on Human Rights
takes precedence over Turkish law.
127. In its Resolution CM/ResDH(2007)109, the Committee of Ministers
urged the Turkish authorities to take without further delay all
necessary measures to put an end to the violation of the applicant’s
rights under the Convention and to adopt rapidly the legislative
reform necessary to prevent similar violations of the Convention.
The
Committee of Ministers, which is responsible for supervising the
execution of Court judgments, noted in September 2012 that “as a
result of the legislation in force, an investigation against the applicant
for desertion is still pending and there is a theoretical possibility
that the applicant could be subjected to further prosecution and
conviction” and urged the Turkish authorities “to take the necessary
legislative measures with a view to preventing the repetitive prosecution
and conviction of conscientious objectors in order not only to exclude
any possibility of the applicant’s further prosecution and conviction
but also to prevent similar violations in the future”,
despite
individual measures taken in the case of Mr Ülke.
128. Any hope of rapid progress on the issue of conscientious objection
did not seem likely during my last visit in November 2012, given
the particular circumstances pertaining to compulsory military service
and the context of a country caught up in a fight against terrorism
and operations in the field. However, I take note that the authorities
indicated, in March 2013, that “consultations between relevant authorities
are ongoing for the general measures to be taken for the full execution
of these judgments”.
Moreover, the recent case law
of the European Court of Human Rights might prompt the Turkish authorities
to reconsider the issues of conscientious objection – I refer here
to the
Bayatyan v. Armenia judgment
of 7 July 2011
–
and of alternative civilian service. In this connection, it should
be noted that, in its
Erçep v. Turkey judgment
of 22 November 2011,
the
Court found that there had been a violation of Article 9 (right
to freedom of thought, conscience and religion) of the European
Convention on Human Rights, and concluded that the absence in Turkey
of an alternative to military service infringed the right to respect
for conscientious objection. I note that a legislative amendment
has now been made enabling male graduates to be exempted from military
service in exchange for payment of a sum of money. But this does
not solve the fundamental problem.
129. Bearing in mind these developments in case law and despite
national security imperatives, I hope that in its efforts to bring
itself into line with the European Convention on Human Rights, Turkey
will make progress on this issue, introduce a right to conscientious
objection and make provision for an alternative civilian service.
5.4. Ratification of
Council of Europe conventions
130. In Resolution 1380 (2004), the Assembly called on
Turkey to “ratify the Convention on Laundering, Search, Seizure
and Confiscation of the Proceeds from Crime, the Framework Convention
for the Protection of National Minorities, the European Charter
for Regional or Minority Languages and the revised European Social
Charter and accept the provisions of the Charter which it has not
already accepted”.
131. The Assembly welcomes Turkey’s ratification of the Convention
on Laundering, Search, Seizure and Confiscation of the Proceeds
from Crime on 6 October 2004 and of the revised European Social
Charter (ETS No. 163) on 27 June 2007, subject to reservations to
Articles 2.3, 4.1, 5 and 6. The representatives of the Ministry
of Labour whom I met in November 2012 told me that Turkey was working
towards lifting these reservations but this was proving difficult,
particularly with regard to the trade union rights of military personnel.
132. On 23 March 2012, Turkey also ratified the Council of Europe
Convention on the Prevention of Terrorism (CETS No. 196), which
came into force on 1 July 2012.
133. For the time being, Turkey has neither signed nor ratified
the Framework Convention for the Protection of National Minorities
(ETS No. 157)
or the European
Charter for Regional or Minority Languages (ETS No. 148)
and the matter would not appear
to be on the agenda. It should be recalled that the definition of minorities
(in this case, religious ones) was established by the Lausanne Treaty
of 24 July 1923, and their rights are enshrined in Articles 10 and
24 of the Turkish Constitution. These communities may manage schools, religious
foundations and charitable organisations belonging to their respective
communities. Non-Muslim communities may also teach their own languages
in their schools.
134. Turkey regularly points out that its situation is similar
to that of France with regard to regional or minority languages,
given the centralised nature of its
government. While Turkey, like France, does not recognise national
minorities within the meaning of the Framework Convention for the
Protection of National Minorities, adjustments in the area of access
to language teaching would nevertheless allow greater account to
be taken of the cultural identity of minorities. In this respect,
I welcome the progress that has been made in recent years in the
use of languages other than Turkish in education or the judicial
system (see below). I note that the current demand of the Kurds
is for teaching in, and not just of, Kurdish, and that this demand
has not yet been satisfied.
5.5. The security forces
and the judicial system
135. In Resolution 1380 (2004), the Assembly called on
Turkey to “continue the training of judges and prosecutors as well
as the police and gendarmerie, with the Council of Europe’s assistance”.
5.5.1. The security forces
136. In 2009, the previous rapporteur noted the fourth
Interim Resolution
on
the execution of the judgments of the European Court of Human Rights,
the progress made and outstanding issues regarding the Court’s 175 judgments
and decisions relating to Turkey delivered between 1996 and 2008.
The Committee
of Ministers had then decided to close the examination of these
issues in view of the measures taken, especially: the improvements
in procedural guarantees during police custody; the improvement
in the training of members of the security forces; the direct effect
of the Convention; the prompt and efficient implementation of the
“Law on Compensation of the Losses Resulting from Terrorism and
from the Measures Taken against Terrorism”, and the training of
judges and prosecutors.
At the same time, with reference
to enhancing the criminal liability of members of the security forces,
the Committee of Ministers considered that Turkish legislation remains ambiguous
regarding the requirement to obtain administrative authorisation
to prosecute members of the security forces in cases involving allegations
of serious breaches of the law other than allegations of torture and
ill-treatment.
137. The previous rapporteur did, however, note an obvious contradiction
between the government’s stated “zero tolerance” policy aimed at
the total eradication of torture and other forms of ill-treatment
and the different testimonies given. At my request, the authorities
provided me with updated information on the measures taken since
2009, including the installation of image and sound recording systems
in 217 detention rooms and 100 interrogation rooms between 2007
and 2013, the organisation of in-service training of security forces
and standardisation of intervention methods (in co-operation with
the relevant authorities in Germany and Austria). The authorities
stressed that the number of trials against persons suspected of
torture and the number of disciplinary decisions against persons
suspected of torture had decreased.
138. In its report published on 31 March 2011 following its 5th periodic
visit (4-17 June 2009), the CPT noted that the downward trend seen
in recent years in both the incidence and the severity of ill-treatment
by law enforcement officials seems to be continuing. Nevertheless,
a number of credible allegations of recent physical ill-treatment
had been received, mainly concerning excessive use of force during
apprehension. The CPT also expressed serious concern about the inadequate
provision of health care to prisoners and a dramatic shortage of
doctors in prisons. As regards conditions of detention, many of
the prisons visited were overcrowded, barely coping with the ever-increasing
prison population. Furthermore, the possibilities for organised
activities (such as work, education, vocational training or sports)
were limited for the vast majority of prisoners, including juveniles.
139. In their response to the CPT’s recommendations, the Turkish
authorities indicated that they had issued a circular to all central
and provincial security units highlighting the need to avoid ill-treatment
and the excessive use of force. They informed the CPT that the unit
for adult males in Edirne had been closed down.
140. In their response, the Turkish authorities also provided information
about the various measures taken to implement the CPT’s recommendations
concerning the above points,
including “training on human rights provided
to the members of the Gendarmerie” and “the installation of surveillance
cameras in detention centres, which is almost completed”.
141. On this point, it should be mentioned that in February 2011,
following the constitutional referendum of 12 September 2010, Turkey
adopted the Optional Protocol to the United Nations Convention against
Torture (OPCAT). The convention, which Turkey ratified in September
2011, requires governments to set up national torture prevention
machinery and report regularly on measures taken to apply the protocol.
The implementation of the measures taken will require a lot of vigilance.
142. It should be noted that in its Chamber judgment of 20 November
2012 (which is not yet final) concerning the case (which occurred
in 2000) of the inmates in Bayrampaşa Prison (Istanbul),
Erol Arikan and Others v. Turkey, the Court
found that there had been a violation of Article 2 (the right to
life). The case related to injuries sustained by the applicants
during the “Return to Life” operation conducted by the security
forces on 19 December 2000 in about 20 Turkish prisons, including
Bayrampaşa Prison, in order to end hunger strikes by prisoners in
protest against a plan for F-type prisons, which provided for smaller
living units for prisoners. The applicants complained about the
manner in which the authorities had prepared and conducted the operation
and alleged that the force used on that occasion had been disproportionate.
They also accused the State of having failed in its obligation to
protect the lives of persons placed under its control.
5.5.2. Training of judges
and prosecutors and application of the European Convention on Human
Rights by judges
143. It should be noted first of all that following its
revision in April 2004, Article 90 of the Turkish Constitution now
provides that international human rights conventions take precedence
over any national legislation incompatible with their provisions.
144. The authorities indicated that the reform process has resulted
in the initiation of training programmes
for officials responsible
for implementing these laws, enforcement officers (police and the
gendarmerie), and the judiciary at all levels. We were told that
some 8 500 judges and prosecutors have been trained through seminars.
145. The failure by Turkey to execute the judgments of the European
Court of Human Rights remains a matter of concern, as highlighted
by Christos Pourgourides (Cyprus, EPP/CD) in his recent report:
some 1 232 cases are pending before
the Committee of Ministers, representing 15% of the Committee’s
case load. The longest-standing ones concern the impossibility of
reopening proceedings for Court judgments delivered prior to 4 February
2003 (following the
Hulki Güneş v. Turkey judgment of 19 June
2003), the repeated imprisonment of Mr Osman Murat Ülke for conscientious
objection (judgment of 24 January 2006),
freedom of
expression, excessive length of detention on remand and the actions
of the security forces and issues concerning Cyprus.
With the newly introduced legislation
in the field of human rights (see supra), the government expects
to reduce considerably the number of cases against Turkey before
the European Court and the Committee of Ministers. In relation to
the execution of the
Hulki Güneş judgment,
a draft law allowing the reopening of proceedings in the applicants’
cases is expected to be brought before the parliament in the framework
of the fourth reform package.
146. It should be noted in this connection that under legislation
which came into force on 1 January 2011, remand prisoners must be
released after five years (10 years in terrorism cases) if their
trials have not taken place. The Minister of Justice, Sadullah Ergin,
has said that 14% of the applications before the European Court of
Human Rights concern the excessive length of proceedings, which
also gave rise to claims for compensation by the applicants.
147. On his visit to Turkey in January 2012, the President of the
Assembly, Mr Mevlüt Çavuşoğlu, pointed out that some effort was
still required to complete the judicial reform and reduce the number
of cases brought before the European Court of Human Rights.
In this connection he called on the
authorities to make full use of the Council of Europe’s legal and
technical expertise, particularly that of the Venice Commission
and other specialised Council of Europe bodies. The reform of the
judicial system, the amendment of several provisions of the Criminal
Code and the anti-terror law (see below) and training for judges
and public prosecutors are all keys to bringing judicial practices
in Turkey into line with European standards.
148. Several measures have been taken to ensure that more account
is taken of the European Convention on Human Rights and that the
implementation of its judgments is properly supervised, including
the following: the establishment in August 2011 of a Directorate
of Human Rights at the Ministry of Justice, charged with preparing
cases brought before the Court in co-operation with the Ministry
of Foreign Affairs and taking the necessary measures for the Court’s
judgments to be executed; the preparation by the Ministry of Justice
of an action plan for the prevention of abuses in the human rights
field designed to reduce the number of cases brought before the
Court; the establishment in March 2012 of a website (inhak.adalet.gov.tr)
providing access to judgments of the European Court of Human Rights
concerning Turkey and other countries translated into Turkish; and
lastly, the adoption of the Law on “settlement of certain cases
brought before the European Court of Human Rights through a compensation
system”, which came into force on 19 January 2013, should make it possible
to offer compensation within nine months for complaints of excessive
lengths of detention or proceedings filed with the Court before
23 September 2012, before they are heard in Strasbourg.
149. Training courses have also been held by the Council of Europe
for military courts. In recent months, 370 civilian judges and 50
military judges, prosecutors and advisers have attended seminars
to raise awareness about the European Court of Human Rights and
its case law. Exchanges of good practices have been arranged between
European countries, and 24 members of the Military Court of Appeal
and 24 members of the Military High Administrative Court (AYİM)
took part in a training seminar.
150. Following a mission by the envoy of the Secretary General
of the Council of Europe, Mr Gérard Stoudmann, the “Project on freedom
of expression and media” was launched by the Council of Europe with funding
from the Council of Europe Human Rights Trust Fund. It was concluded
with a high level conference on freedom of expression on 5 February
2013, notably in the presence of the Ministry of Justice, Mr Ergin,
the high judicial authorities of Turkey and the Secretary General
of the Council of Europe, Mr Thorbjørn Jagland. The project on increasing
respect for freedom of expression in the judiciary (January 2012-December
2013) includes study visits to Germany, the United Kingdom and Spain
for 120 judges, training courses for judges and prosecutors on freedom
of expression, including courses at the Justice Academy and secondments
to the European Court of Human Rights.
6. Human rights
6.1. Revision of the
Criminal Code, freedom of expression and association
151. In its Resolution 1380 (2004), the Assembly called
on Turkey to “complete the revision of the Criminal Code, with the
Council of Europe’s assistance, bearing in mind the Assembly’s observations
on the definitions of the offences of insulting language and defamation,
rape, honour crimes and, more generally, the need for proportionality
arising from the European Court of Human Rights’ case law on freedom
of expression and association”.
152. The authorities underline that the new Turkish Criminal Code
promulgated in 2005 introduced a more liberal approach to freedom
of expression. The enforcement of Article 301 on public denigration
of the Turkish nation, the State, the government, judicial institutions,
parliament, the military or security organisations did, however,
pose certain difficulties, which led to it being amended in May
2008 to remedy them. This recent amendment of Article 301 made enforcement
subject to a dual safeguard: criminal proceedings may only be initiated
with the authorisation of the Minister of Justice; even if authorisation
is granted, the prosecutor has the discretionary power not to prosecute.
In 2009, however, the Assembly noted that “the reform of Article 301
of the Criminal Code has by no means lifted all the restrictions
on the freedom of expression”:
according
to the Turkish authorities, Article 301 of the new Criminal Code
was used to bring 1 072 proceedings between June 2005 and April
2008 and led to the conviction of 192 people,
while, between 2008 to 2012, there
were 2 115 applications for an investigation permit; 114 were allowed,
66 files were closed, 78 cases are still ongoing – and 10 people
were convicted for violating Article 301.
153. The considerable pressure brought to bear on the press by
the authorities (judges, the military and police officers) was carried
out in pursuance of Article 301 of the Criminal Code which sanctions
attacks on the “Turkish identity and nation”, with sentences of
up to three years’ imprisonment. The amendments introduced in 2008
have not brought about sufficient improvement. Moreover, Articles 285
(relating to “breach of confidentiality”) and 288 (relating to attempts
to “influence a fair trial”) of the Criminal Code were additions
to this broad range of legislation restricting the freedom of expression
which needed to be reviewed. The strict observance of the fundamental
and universal human rights enshrined in the European Convention
on Human Rights must be upheld by all Council of Europe member States,
and consequently by Turkey as well.
154. A third package of judicial reforms was introduced, amending
Articles 285 and 288 of the Criminal Code, which are referred to
in most cases in which journalists covering sensitive cases are
detained. Pecuniary penalties may now be imposed instead of prison
sentences and publications may no longer be prohibited. Furthermore,
prison sentences of three to five years imposed in cases of media
offences and crimes of opinion committed before 31 December 2011
have been suspended for a time and will be quashed provided that
the journalists do not offend again during this period. According
to the Turkish authorities, this measure may affect some 5 000 cases
relating to journalists.
155. With regard to Article 301 of the Criminal Code, despite the
amendments adopted in 2008 which restricted the implementation of
this article in practice,
the European
Court of Human Rights found against Turkey in its
Altuğ Taner Akçam v. Turkey judgment
of 25 October 2011. Its view was that “the wording of Article 301
of the Criminal Code, as interpreted by the judiciary, was too wide
and vague and did not enable individuals to regulate their conduct
or to foresee the consequences of their acts. Despite the replacement
of the term ‘Turkishness’ by ‘the Turkish Nation’, there was apparently
no change in the interpretation of these concepts”.
This case law leads us
to request the abolition of Article 301.
156. It should be noted that the third package of judicial reforms
also made it possible to lift the ban on 453 of the 645 books, newspapers
and leaflets which had been censored by the courts or the government
before 31 December 2011. This is a positive development, which will
enhance freedom of expression.
157. The authorities have indicated that many seminars on freedom
of expression have been held for judges and prosecutors since 2004
and in-depth training courses on the enforcement of the Criminal
Code from the angle of the European Convention on Human Rights are
held in co-operation with the European Union and the Council of
Europe.
158. It seems, however, that freedom of assembly and of expression
comes up against serious obstacles. According to the 2010 report
by the Human Rights Protection Monitoring Centre, in late 2009,
1 415 people were in detention and 369 had been arrested and subsequently
released as a result of their taking part in a demonstration. Members
of the opposition, journalists and civil society activists, including
human rights activists, continue to face prosecution and conviction
(in 2009, 355 people were sentenced for the exercise of the right
to freedom of expression, and 18 newspapers were suspended temporarily).
The banning of certain Internet sites (such as YouTube for a period)
and the blocking of 4 662 others also caused for concern.
159. Several measures concerning Internet access have triggered
many reactions: in April 2011, the Information and Communication
Technologies Authority (BTK) decided to introduce filters which
would require Internet subscribers to choose a level of protection.
This decision is being appealed against before the Council of State
on the initiative of the IPS Communication Foundation, an offshoot
of the Bianet alternative website. The measure will apply from 22 August
2011. Moreover, in April 2011, the TIB administrative authority
ordered Internet service providers to remove websites with domain
names contain one of the 138 words
which “generally
suggest that the website is in violation of the eight crimes listed
in Law No. 5651”, according to the authorities.
These
measures had come on top of the blocking of websites under this
law already mentioned above
and
were perceived as censorship in Turkey, sparking strong protests
among sections of the Turkish population, especially young people.
160. The authorities informed me that the concerns expressed by
the public regarding Internet filters had been taken into account
and the Information and Communication Technologies Authority had
amended the regulation of February 2011, a new version of which
had been adopted in August 2011. Amendments had been made so that
filters were now explicitly optional and only persons wishing to
subscribe to a particular service would have to make a request.
If users wished to keep their current standard subscription, they
would not need to do anything. The initial version of the regulation
provided for four types of filter (standard, family, child-proof or
domestic) but this had now been reduced to two – child-proof or
family. The testing phase had been put back and was due to end in
November 2011, when the system was to become available to all users.
161. In its (non-final) Chamber judgment of 18 December 2012 in
the case of
Ahmet Yıldırım v. Turkey, the
European Court of Human Rights found that there had been a violation
of Article 10 (on freedom of expression) of the Convention. It held
that a measure restricting access to the Internet which was not
governed by a strict legal framework regulating the scope of a ban
and affording the guarantee of judicial review to prevent possible
abuses constituted a violation of freedom of expression.
162. The application of anti-terrorist legislation focuses notably,
and primarily, on persons of Kurdish origin and those sympathising
with the Kurds. There is a need to review certain imprecise articles
(Article 7.2 of Law 37/3) which make no distinction between the
fact of expressing agreement with certain political goals (those
of an organisation, the PKK, recognised as a terrorist organisation
by Turkey, the European Union and the United States) and defending
that organisation and its violent methods.
163. The case of the writer, Pınar Selek, is highly symbolic. Part
of Ms Selek’s work as a politically committed sociologist and feminist
had been to conduct research on the PKK. She was arrested and tortured
to force her to reveal her sources, then charged with complicity
in a bombing attack in connection with the explosion on the Egyptian
market in Istanbul in July 1998 (which has been found in expert
reports to have been an accident). She was acquitted in court three
times (in 2000, 2006 and 2011). On each of these occasions the prosecuting authorities
appealed. The trial, which was due to resume on 1 August 2012 in
the 12th Assize Court, was adjourned to 22 November 2012. These
proceedings, which have been going on for 15 years, are tantamount to
judicial harassment of Pınar Selek. On 24 January 2013, Pinar Selek
was given a life sentence by the 12th High Court of Assize (by a
2 to 1 vote), based on some expert reports ordered. The motivation
of the court, including the dissenting opinion of the chief judge,
was published on 6 March 2013. Pinar Selek has appealed and the
proceedings are ongoing.
164. The leaders of human rights associations whom we met – the
Human Rights Joint Platform (IHOP), the Human Rights Association
(in Diyarbakir, Ankara and Antakya), Amnesty International, Helsinki
Citizens Assembly, the Mazlumder and Tum–Bel–San associations in
Diyarbakir and the LGBT association Kaos GL – gave information about
the type of proceedings initiated, the organisations and the individuals
targeted, such as “Mothers for Peace”, conscientious objectors,
lawyers, trade unionists... The Lambaistanbul association which
defends the rights of gay, lesbian and transgender people, which
had been banned in May 2008, was however allowed to continue operating
in April 2009 following a new trial. In the light of these various declarations,
it should be noted that there are recurrent instances of searches,
arrests and detentions of human rights defenders. It is up to us
to pay close attention to this matter.
165. I was also struck by the following information concerning
the situation of journalists, obtained in the course of my visits:
- On 30 September 2010, the Freedom
for Journalists Platform (comprising 14 media associations) set
up that year reported that 50 press workers were being held in prison. The
platform indicated that a gradual increase in the number of investigations,
court cases, physical assaults and threats against journalists,
as well as concerns over the ongoing cases related to the murder
of journalists Hrant Dink and Cihan Hayırsever, and the banning
and confiscating of publications, meant that there were fears that the
crackdown on the media could intensify further in the future.
- In February/March 2011, 10 journalists and writers, including
Ahmet Şık and Nedim Şener, were arrested and their homes were searched.
Three other journalists were arrested later. All are known critics
of the AKP. Mr Şık and Mr Şener are suspected of belonging to the
Ergenekon network, even though they have always denounced the existence
of a “deep state” and of anti-democratic elements in the armed forces.
Copies of the unpublished manuscript of Ahmet Şık’s book on the
Gülen religious community have been confiscated by the police.
- Speaking before the Parliamentary Assembly on 13 April
2011, Prime Minister Erdoğan referred to the cases of 26 journalists
and said that their imprisonment was not related to their journalism
but to their involvement in an attempted coup. Regarding the confiscation
of Mr Şener’s manuscript, the Prime Minister said that when people
threw bombs or committed crimes, the situation was clear, but making lists
of everything that was needed for making bombs, whether in terms
of the explosives or of assembling them, was also a crime. When
there was information about a potential threat, the security forces
surely had a duty to intervene to prevent the crime.
- The indictment against 14 suspects in the Ergenekon case,
including Ahmet Şık and Nedim Şener, was issued on 9 September 2011.
Şık and Şener, who are accused of “assisting an armed terrorist organisation”,
will be tried and could be sentenced to seven and a half to 15 years’
imprisonment. The indictment against Ahmet Şık states that the confiscated
document, entitled “The Imam’s Army” [editor’s note, Imam Fethullah
Gülen] was to be published under the false name of “Sabri Uzun”,
“in keeping with the Ergenekon armed terrorist organisation’s general
strategy to thwart the legal proceedings initiated against it, as
described in the document “National Media 2010”.
- In the ODATV case, the hearing of which I attended in
Istanbul on 18 June 2012, 14 people were charged and the journalist,
Müyesser Yıldız, was released on 18 June 2012. Ahmet Şık and Nedim
Şener were released in March 2012. Soner Yalçin, who is the owner
of the ODATV site, was released (but prohibited from leaving the
country) on 28 December 2012 and questions the influence of the
Gülen movement. The accused journalists claimed that the confiscated
documents had been transferred to their computers by means of a
virus. In January 2012, following expert appraisals carried out
by Turkish and American university institutes in December 2011,
the court ordered, in January 2012, the Scientific and Technological
Research Council of Turkey (TUBITAK) to prepare an independent study.
Its first report submitted in September 2012 was inconclusive so
it was asked to prepare another and, in November 2012, it concluded
that the documents had been transferred by external peripherals
but they were not linked to the viruses found on the computers.
166. In a press statement of 25 August 2011, the Ministry of Justice
stated that it had examined the list of 72 journalists who were
reported by the Turkish journalists’ trade union to have been arrested
and sentenced and found that 3 had not been arrested, 6 had been
released, 36 were facing criminal charges (only four of whom had
been imprisoned for “propaganda for a terrorist organisation” which
could be considered to fall into the category of offences committed
by means of the press) and 18 had been sentenced.
In addition, 27 of these journalists
had been accused of offences which were unconnected with the work
of a journalist such as “membership of a terrorist organisation”.
The Ministry concluded that
59 of the 63 journalists who had been arrested and sentenced had
not been arrested or sentenced for alleged offences committed by
means of the press, in other words for their writings or work as
journalists. They had actually been arrested or sentenced for offences
which had nothing to do with the press.
167. A number of international organisations reacted to the situation
of detained journalists, including the European Commission
and the European Parliament.
168. On 4 April 2011, Dunja Mijatovic, OSCE Representative on Freedom
of the Media, published a study mentioning 57 imprisoned journalists,
noting that 700 to 1 000 journalists were at risk of being imprisoned
and underlining the need to reform the law on the media.
Ms Mijatovic pointed out that most journalists
were imprisoned on the basis of Articles 5 and 7 of the anti-terror
law relating to articles of the Criminal Code on terrorist offences
and organisations, or assisting members of or making propaganda
in connection with such organisations and Article 314 of the Criminal
Code on establishing, commanding or becoming a member of an armed
organisation with the aim of committing certain offences; and that
media outlets were often regarded by the authorities as the publishing
organs of illegal organisations. Reporting about sensitive issues
(terrorism, anti-government activities) was deemed to constitute
support for them and imprisoned journalists were held in F-type
high-security prisons along with the most dangerous criminals.
169. Following the invitation issued on 13 April 2011 by Prime
Minister Erdoğan, the Secretary General of the Council of Europe,
on 30 May 2011, appointed Gérard Stoudmann as his Special Envoy
to assess the situation of freedom of expression in Turkey, which
led to the launch of a number of co-operation programmes with the Council
of Europe.
170. In his report of 10 January 2012 on the effects of the administration
of justice on human rights protection in Turkey, the Commissioner
for Human Rights, Thomas Hammarberg, said he was concerned about
the way certain offences relating to terrorism and membership of
a criminal organisation are defined in Turkish legislation, leaving
room for a very wide interpretation by courts. “Terrorism poses
enormous challenges and difficulties, but it should be fought while
fully respecting human rights. Prosecutors and judges need to be further
sensitised to the case law of the European Court of Human Rights,
concerning in particular the distinction between terrorist acts
and acts falling under the scope of the rights to freedom of thought, expression,
association and assembly”.
171. Furthermore, I was concerned about the decision taken by the
Constitutional Court on 2 May 2011, declaring Article 26 of the
Law on the Press unconstitutional. This article set the deadline
for prosecuting journalists at two months (for daily newspapers)
and four months (for the other media) following publication, respectively.
Revocation of Article 26 is liable to greatly increase the number
of new investigations against journalists (which totalled 4 139
in 2010, according to statistics provided by the Ministry of Justice
in November 2010) and to create a “permanent threat of criminal
lawsuits being initiated against journalists expressing critical
views”, in the words of Dunja Mijatovic, OSCE Special Representative
on Freedom of the Media.
I note that although the repeal
of Article 26, which was originally planned, was abandoned, the
time limit for prosecuting journalists has been increased to four
months (for daily newspapers) and six months (other media).
172. With regard to the amendments to the Criminal Code (in particular
Articles 215, 217, 238, 301 and 314) and the anti-terrorist legislation
(in particular Articles 5 and 7), I reiterate the request made by
the Assembly in 2004. I invite the Turkish authorities, in co-operation
with the Council of Europe, to conduct an in-depth review of the
legal provisions and administrative measures and verify their compatibility
with the case law of the European Court of Human Rights. In this
connection, compulsory in-house training of judges and prosecutors with
a view to ensuring the effective, uniform application of this legislation,
taking into account the case law of the European Court of Human
Rights, seems to me to be essential.
173. Finally, I refer to the requests made by the Assembly to Turkey
in
Resolution 1920 (2013) on the state of media freedom in Europe,
adopted
in January 2013, in particular regarding the abolition of Article
301 of the Penal Code.
174. In its
Resolution
1380 (2004) the Assembly invited Turkey to “undertake, with the
Council of Europe’s assistance, a comprehensive examination of the
legislation dating from the period of the state of emergency, particularly
that relating to associations, trade unions and political parties,
to ensure that as far as possible it reflects the spirit of recent
reforms”.
6.1.1. Dissolution of
political parties
175. Restrictions on freedom of association concern the
dissolution of political parties, most recently the Democratic Society
Party (DTP), which was dissolved in 2009 following a decision by
the Turkish Constitutional Court.
In its
Resolution 1622 (2008) “Functioning of democratic institutions in Turkey: recent
developments”, the Assembly pointed out that the drafting of a new
– civil – constitution had become necessary and called on Turkey
to continue co-operating with the Venice Commission to “envisage
introducing stricter criteria for the dissolution of political parties,
such as condoning or inciting violence or overt threats to fundamental
democratic values”.
176. In an opinion dated 2009, the Venice Commission stated: “It
is for the appropriate Turkish institutions to make the necessary
amendments to the national constitution and legislation ...” so
that “the instrument of party closure is transformed from being
part of the operative constitution to become a genuine safety valve,
to be invoked only in truly extraordinary circumstances.” The Venice
Commission specified that it would “advocate a system under which
the competence of the Public Prosecutor to initiate procedures concerning
party closure is subject to some form of democratic control. Furthermore,
one might want to consider introducing a general threshold in the
form of a strict principle of proportionality and more clearly defined
standards of proof”.
177. During my visit to Ankara on 12 January 2011, I was suprised
to learn that the Constitutional Court not only could easily, though
with a qualified majority, dissolve political parties, but it could
also simultaneously dismiss democratically elected members of parliament.
The members concerned were given their mandate by the people, not
by the party, and they should be able to maintain it until the next
election, whatever the political circumstances. I noted that the
Minister of Justice said that these provisions had been “abrogated
by amendment”. This remains to be clarified and monitored.
178. I regret that the government's attempt to introduce a more
sophisticated procedure for dissolving political parties (which
would have required parliament's authorisation) failed reach a consensus
in the parliament and was not submitted to the voters in the referendum.
I invite the Turkish authorities to re-examine this issue and revise
the legislation, taking into account the Venice Commission's recommendations.
6.1.2. Legislation on
associations and trade unions
179. The authorities have indicated that the constitutional
amendments of September 2010 broaden the scope and the substance
of trade union rights and the right to freedom of association. These
amendments take into consideration the International Labour Organization
conventions concerned and the relevant judgments of the European
Court of Human Rights. Simultaneous membership of several trade
unions will henceforth be possible, and trade-based restrictions
will no longer apply. Article 54 of the Constitution, whereby a
trade union that organises a strike is liable for any material damage,
has been repealed. The right to collective bargaining has been extended
to all civil servants and workers in the public sector. Law No.
6356 on trade unions and collective agreements for civil servants
was adopted on 4 April 2012. As a result of the constitutional amendment,
the Economic and Social Council is now a constitutionally recognised
consultative body.
180. Resolution CM/ResDH(2010)117
on execution of the judgment of
the European Court of Human Rights in the case of
Tüm Haber Sen and Çınar v. Turkey noted
the progress made concerning the foundation of trade unions by civil
servants. Law No. 4688 on civil service unions, as amended by Law
No. 5198 of 24 June 2004, guarantees trade union freedom to civil
servants.
181. The new law on trade unions was adopted on 19 October 2012.
During my talks in November 2012 with the President of the Istanbul
Chamber of Commerce, representatives of the Association of Turkish
Commerce and Industry (TÜSIAD), the President of the Confederation
of Public Service Employees (KESK) and the Secretary General of
the Confederation of Progressive Trade Unions of Turkey (DISK),
I noted that this new law provokes fears both among employers, who
are apprehensive about a more powerful trade union movement, and
among trade unions because of the representativeness thresholds
that are to be gradually introduced. I note, however, how weak the
trade union movement is (in January 2013, 1 million of the country’s 10,8
million employees (ie 9.21%) were trade union members, and 68.17%
of public servants were trade union members).
In
a country in which 95% of businesses are SMEs, trade unions are
required to reach a representativeness threshold of 3% in companies
with 30 employees or more to be entitled to sign a collective agreement
and, as things stand, this excludes 39 trade unions from collective
bargaining. For the moment, 43 trade unions are authorised to sign
collective bargaining agreements. A transition period has been introduced for
these trade unions, during which no threshold requirement will be
applied. The 3% threshold will start to be applied in July 2018
for trade unions that are members of confederations.
182. There are restrictions on trade union rights however. For
instance, in May 2012, the government adopted a law which withdrew
the right to strike from employees in the civil aviation sector.
According to the information sent by the authorities in the meantime,
this article was repealed with the adoption of Law No. 6356 that
entered into effect on 1 January 2013, which limits the restrictions
on strikes to “vital services”.
Some
occupational categories, such as the civilian staff working for
the Ministry of Defence, are not permitted to set up or join trade unions.
The CHP regretted that the new trade union regulations did not address
the issue of compulsory arbitration, prohibitions and restrictions
with regard to the right to strike, particularly the right to general
strikes and sympathy strikes, and that they did not offer any means
of settling the long-term disputes (dating back several years) on
the subject of authorisation.
183. In its 2012 progress report,
the European Commission
also notes that high thresholds for entering into collective bargaining
continue to significantly restrict the possibility of collective
agreements and consequently impede the full exercise of the right
to bargain collectively.
184. With regard to the lifting of reservations to the revised
European Social Charter, representatives of the Ministry of Labour
have confirmed to me that the work is under way to do so, while
admitting that achieving this will be difficult, particularly as
regards the establishment of trade union rights for military personnel.
6.1.3. Children's participation
in protests
185. In its 2010 report, Amnesty International pointed
out that “since 2006, thousands of children in Turkey, sometimes
as young as 12 years old, have been prosecuted under the anti-terrorist
legislation for their alleged participation in demonstrations. These
protests, principally concerning issues of concern to the Kurdish community,
often gave rise to violent clashes with the police. Following their
arrest, many Kurdish minors were detained in centres for adults,
without their detention being registered and without allowing them
access to a lawyer or to notify their families, for periods that
could range from a number of months to a year. These children were
rarely given access to education, health care or leisure activities.
Many of them stated that they had been ill-treated or tortured during
their arrest and detention.”
186. The Council of Europe Commissioner for Human Rights, Mr Thomas
Hammarberg, had already raised this question in a letter sent to
the Minister of Justice, Mr Ergin, on 8 June 2010. In his reply
of 1 July 2010, the minister detailed the amendments being made
to the system, in particular the requirement that all minors should
be brought before the juvenile courts and the measures taken to
prevent the imprisonment of minors found guilty and sentenced.
I note the progress made in this
field with regard to juveniles
and access to education and health
care, according to the information send by the authorities.
187. A delegation of the Council of Europe’s Committee for the
Prevention of Torture and Inhuman or Degrading Treatment or Punishment
(CPT) carried out an
ad hoc visit
to Turkey from 21 to 28 June 2012, the main aim of which was to
examine the treatment and conditions of detention of juveniles held
in prisons, taking into account the recent allegations of ill-treatment
of juvenile prisoners at Pozantı Prison. The delegation visited Ankara-Sincan
Juvenile Prison, to which all the juveniles previously held at Pozantı
Prison had been transferred, as well as Istanbul-Maltepe Juvenile
Prison and the juvenile units of Diyarbakır and Gaziantep E-type
Prisons. The delegation also talked to the Turkish authorities about
the fires which had broken out in June in several prisons in central
and south-eastern Turkey, resulting in a number of severe casualties.
188. In addition, the right of students to demonstrate is often
repressed using tear gas or water cannons, as was the case during
the demonstrations at the Middle East Technical University (METU)
in December 2012. Legitimate questions can be raised about the systematic
and disproportionate use of force to break up and suppress these
demonstrations. I have also talked to the Minister of Justice about
the questions and concerns raised by the indictment of a young Franco-Turkish
and Kurdish student, Sevil Sevimli, arrested and then conditionally
released after three months’ detention pending trial, and required
to remain in Turkey. In November 2012, she could have been given
a long prison sentence (the prosecutor had recommended 32 years’
imprisonment), like other students arrested after participating
in demonstrations, which are often legal (and then charged with
very serious offences such as membership of a terrorist organisation).
On 15 February 2013, Sevil Sevimli was sentenced to five years and
two months in prison for “disseminating propaganda for a terrorist
organisation and committing crimes on behalf of the organisation”.
She was authorised to leave the country, pending her appeal trial.
I expressed my concern at the number of students in prison. In this connection,
the Minister of Justice told me that as of 8 November 2012, only
87 students had been arrested. The figure of 2 800 students in prison
relates to young prisoners who have begun or are continuing their
studies during their imprisonment.
6.2. Institution of
the Ombudsman
190. The Assembly welcomed the fact that the constitutional revision
of 12 September 2010 paved the way for the creation of an ombudsman
institution. For information, a law on the Ombudsman passed by parliament on
28 September 2006 was declared unconstitutional by the Constitutional
Court on 25 December 2008, upon an application by the President
of the Republic. On 14 June 2012, the parliament passed the law
on the creation of the ombudsman institution.
191. On 30 October 2012, the parliament received 25 candidatures
for the post of principal ombudsman, and 783 candidatures for the
five deputy ombudsman posts. A joint committee, composed of members
of the Petitions and Human Rights Committee, drew up a shortlist
of three candidates for the post of principal ombudsman, which was
then submitted to parliament for a vote.
192. On 27 November 2012, Mehmet Nihat Ömeroğlu was elected ombudsman
by the parliament. We would have liked to be in a position to welcome
the completion of the process of creating an institution which is
so important for defending the rights of all citizens; however,
the appointment of Mr Ömeroğlu as ombudsman has, since his election,
given rise to numerous questions and criticisms; in addition to
the procedural objections raised by the opposition (regarding the
selection criteria and transparency), it emerged that Mr Ömeroğlu
was a former member of the Court of Cassation which, in July 2006,
had confirmed the conviction of the Turkish-Armenian writer Hrant
Dink for “denigrating Turkish identity”, under Article 301 of the
Criminal Code. On this issue, the European Court of Human Rights
found
that there had been a violation of the right to freedom of expression
in 2010. The criticism raised by human rights associations and the
opposition regarding the election of this former judge to the position
of Ombudsman, as well as the appointment of his five deputies, who
could be close to the AKP, could well undermine the credibility
of this new institution, which would be extremely damaging.
193. In the coming months, the institutional structures will be
put in place to enable the Ombudsman to carry out his role to the
full. It is to be hoped that, in accordance with Recommendation
R (85) 13 of the Committee of Ministers on the institution of the
Ombudsman,
the necessary
resources will be made available to ensure that the Ombudsman can
fulfil his role in defence of citizens. It should be noted, in this
connection, that a report is being prepared in the Parliamentary
Assembly on “Strengthening the institution of Ombudsman in Europe”
which
will also discuss the establishment of the Ombudsman in Turkey.
194. Two additional bodies have been or are being set up: a “National
Human Rights Institution of Turkey (NHRI), established by parliament
in June 2012, with its members appointed in September 2012, tasked
with carrying out research, drafting recommendations and investigating
human rights violations; and a committee to monitor the law enforcement
agencies – a bill in this connection has been submitted to parliament.
In order to gauge the effectiveness of these new bodies, it will
be necessary to verify the arrangements for appointing its members,
the resources that will be available to them and how independently
they will be able to act.
6.3. Refugees and asylum
seekers
195. In its
Resolution
1380 (2004), the Assembly asks Turkey to “lift the geographical
reservation to the 1951 Geneva Convention relating to the Status
of Refugees and implement the recommendations of the Council of Europe
Commissioner for Human Rights on the treatment of refugees and asylum
seekers”.
196. One of the striking features of recent times has been the
massive arrival of refugees from Syria (more than 180 000 as of
20 February 2013). During my visit to the province of Hatay and
the Yayladağı (5 900 refugees) and Altınözü (1 200 refugees) camps
located 100 km from Aleppo in November 2012, I was able to see for
myself the measures taken by Turkey to accommodate the 110 000 Syrian
refugees then living in the camps. The reception of the refugees
(whom the Turkish call “guests under provisional protection”) is outstanding,
bearing in mind the extremely difficult material conditions (one
of the camps is located in a former tobacco factory with individualised
“containers”, and the other is a tented camp). Considerable effort
has been made and the health and security aspects seem to be well
under control. In particular, I noted the fact that schooling had
been arranged along with care provision for children at all levels.
We should applaud the action taken by Turkey – which is costing
them for the moment over US$600 million – and by the Turkish Red Crescent,
and the exemplary solidarity of the Turkish people.
197. According to UNHCR figures, asylum requests increased by 50%
between June 2011 and July 2012, with 30 000 refugees and asylum
seekers (primarily from Afghanistan, Iraq, Iran and Somalia) having
been registered in Turkey. To these must be added the 150 000 “Syrian
guests” housed in camps, and 70 000 Syrians living on Turkish territory.
The UNHCR estimates that, in all, Turkey could have some 335 000
refugees and asylum-seekers in 2013.
198. Like the Commissioner for Human Rights, Thomas Hammarberg,
I
welcome the adoption of the circulars on “refugees and asylum seekers”
and on “combating illegal immigration” of 19 March 2010, intended to
improve access to asylum procedures, ensure better protection of
vulnerable groups such as children separated from parents, women
victims of gender-based violence and the elderly or disabled, and
to ensure better access for asylum seekers to the labour market,
while encouraging the authorities to satisfy themselves that these
circulars are uniformly applied throughout the territory.
199. The geographical reservation excludes non-European citizens
from the scope of the 1951 Geneva Convention relating to the Status
of Refugees. I take note of the current preparation of a new law
on aliens and international protection, intended to improve further
the conditions for foreigners irrespective of status. This draft
law, drawn up with the UNCHR’s assistance, should result in significant
and systematic improvements, complying with international standards,
based on the principle of non-discrimination and non-refoulement,
and ensuring that asylum seekers have access to medical services,
education and social assistance.
Nonetheless, it became clear from
my talks with the Chair of the Human Rights Committee, Mr Ayhan
Sefer Üstün, that Turkey has no plans to lift its reservation to
the Geneva Convention, in view of the current efforts to improve
the legal framework.
200. Mention should also be made of the reinstatement, on 21 June
2012, of readmission agreements, providing for the return of Turkish
illegal migrants or migrants having transited in Turkey. This, in
the words of Mr Bağış, Minister for European Integration, is a major
step towards the abolition of the visa regime applied to Turkish
citizens by EU member States, which the Turkish authorities regard
as unfair.
The National Action Plan for the
adoption of the EU
acquis in
the field of asylum immigration (Türkiye Ulusal Eylem Planı) signed in
2005 with the European Union, also provides for the suspension of
the geographical reservation to the Geneva Convention.
201. The new law could significantly improve the protection of
asylum seekers and refugees, and I hope that it can be ratified
as soon as possible. I believe Turkey should be supported in its
efforts to improve the reception of these refugees and I urge Turkey
to continue its co-operation with the UNHCR.
202. In its
Resolution
1380 (2004), the Assembly invited Turkey to “move from a dialogue
to a formal partnership with United Nations agencies to work for
a return, in safety and dignity, of those internally displaced by
the conflict in the 1990s”.
203. The programme “return to the villages and rehabilitation plan”
implemented in 14 provinces
from 1994 to
2005 led to the return of 187 861 out of the 386 360 displaced persons,
according to the Minister of Interior.
An
additional programme for the 13 remaining provinces is under consideration,
as action plans.
204. Following the decision of the European Court of Human Rights
in 2004, Law No. 5233 on compensation for damage caused by terrorism
came into force in March 2008. Since then, 247 729 applications
out of 360 660 have been dealt with, almost 140 000 of which have
received a positive response (representing a total of approximately
two million Turkish lira) with 100 000 having been rejected.
The State Security Courts
have been abolished.
205. The return programmes have been accompanied by several programmes
for the socio-economic development of the region (with financial
and tax incentives granted to investors in the region), such as
the South-East Anatolia Project (GAP) in 2012 on irrigation, road
transport, health care, education, business development and women’s
empowerment, accounting for 14.2% of public investment in 2010;
support for 1 000 projects in the field of employment, social inclusion
and culture, targeting disadvantaged groups between 2008 and 2010
under the Social Support Programme (SODES) for the provinces in
the east and south-east; a rural infrastructure support project
(KOYDES) on drinking water, the launch of the project for integrated
rural development in 2007 to regenerate and develop 500 villages
in Diyarbakır, Batman and Siirt, totalling 50 million dollars; and
development of the road network in southern and south-eastern Turkey
(with a network expanding from 580 km of roads in 2002 to 3 586
km in 2010); and the ongoing or completed construction of new airports in
Batman, Bingol, Iğdır, Hakkâri and Şırnak.
206. I welcome Turkey’s efforts to carry on its programme for the
return of displaced persons and encourage the Turkish authorities
to deploy fresh initiatives, which should include promotion of regional
development, to ensure the lasting return of these persons.
6.4. Rights of minorities,
cultural rights and protection of minorities
207. In its
Resolution
1380 (2004), the Assembly invited Turkey to “pursue the policy of
recognising the existence of national minorities living in Turkey
and grant the persons belonging to these minorities the right to maintain,
develop and express their identity and to apply it in practice”.
6.4.1. Minorities recognised
by Turkey
208. In accordance with the Lausanne Treaty of 1923, the
Turkish authorities recognise, as minorities, “Turkish nationals
belonging to non-Muslim minorities”. In fact, Turkey recognises
the Jewish, Armenian and Greek Orthodox communities as “minorities”,
but not the other denominational communities (such as Roman and
Syriac Catholics, Protestants, the evangelical churches, etc.). They do not recognise ethnic differences between
“Turkish nationals” as the definition of another type of minority.
209. The authorities have stressed that Turkish citizens belonging
to the non-Muslim minorities benefit
inter alia from
positive discrimination in education. Educational institutions for
Turkish citizens belonging to non-Muslim minorities are governed
by the law of 2007 on private teaching establishments.
The
property rights of non-Muslims have also been strengthened in the
context of the current reform process. The Turkish Parliament has
passed a new law on foundations, which took effect in February 2008,
consolidating the situation of foundations attached to non-Muslim
communities as regards the international aspects, particularly the
system of donations and financial and/or material assistance from
abroad, registration of their real estate and their representation
in the Council of Foundations − the guiding body of the Directorate
General for Foundations. As a result of this law, 181 real estate
assets were registered in the name of foundations attached to non-Muslim
communities and the land registries related to 150 properties were
corrected.
210. With regard to religious minorities, it should be noted that,
on 13 May 2010, the Prime Minister published a circular, confirming
that all Turkish citizens belonging to the various religious faiths
were an integral part of Turkey, and calling on all administrative
authorities to act with the utmost vigilance to completely eliminate
the problems encountered by non-Muslim minorities.
211. In addition, Section 11 of the law on foundations was amended
on 27 August 2011 in order to improve the situation of foundations
attached to non-Muslim communities with regard to the registration
of their real estate.
212. The amended law provides that the real estate assets of non-Muslim
community foundations registered under the 1936 Declaration with
the “owner” section left empty or registered in the name of the
Treasury, the General Directorate of Foundations, or special municipal
and provincial administrations for reasons other than sale, barter
or expropriation, as well as cemeteries and fountains registered
in the name of public institutions, will be entitled to be registered
in the name of non-Muslim community foundations upon application
of the interested parties. Furthermore, compensation for the real
estate of foundations registered in the name of third parties will
be paid at the market value. Applications for the return of property
under the 2011 law could be submitted up to 27 August 2012. 116
foundations requested the return of 1 560 assets. A total of 111
assets have been returned and compensation paid for 15 other assets.
This process is ongoing. It is worth noting in this connection the
decision of 10 January 2013 by the Council of Foundations (part
of the Directorate-General for Foundations) to return 190 hectares
of land to the Halki Greek Orthodox seminary.
213. The process of return of property continues. Moreover, it
is unreservedly supported by the opposition party CHP. In some cases,
the process comes up against various difficulties, resulting from
the size of the community responsible for administering the assets
in question
or the burden of proof falling
to the foundations and the difficulty in gaining access to the archives,
highlighted by the Hrant Dink Foundation, which nevertheless felt
that the implementation of the 2011 law was a significant step towards
eliminating the discriminatory policies pursued over the years.
I also note, from the talks I had with Mr Vingas, the first non-Muslim
representative elected to the Directorate of Foundations, that there
is considerable hope placed in the constitutional reform process
which should, above all, ensure equality, in law and in practice,
of the rights of all citizens, whatever their religion.
214. Several emblematic gestures made towards religious minorities
are to be welcomed. For the first time since 1952 a Minister of
State, Deputy Prime Minister, Bülent Arınç, visited Greek Orthodox
Patriarch Bartholomew I on 3 January 2011, followed by the visit
of the Foreign Affairs Minister, Mr Davutoğlu, on 3 March 2012.
He said that Turkey was considering the Patriarch’s request to reopen
the Halki Orthodox seminary on Heybeliada Island, which had been
a major centre of theological learning for over a century prior to
its closure in 1971 under a law placing all universities under State
control. The Armenian Church of Van has been restored. Instructional
books in Armenian have been distributed free of charge. Moreover,
Prime Minister Erdoğan has publicly stated that Christians must
not be ill-treated.
Religious ceremonies have been
held in the Sumela monastery in Trabzon since 2010, in Armenian
churches in Akdamar (Van) and Diyarbakır. Representatives of religious
minorities have been invited to contribute to the work of the Conciliation Committee
tasked with drafting the new constitution.
215. It should also be noted that the new law on metropolises of
6 December 2012 added a clause to Law No. 5393 on municipalities,
enabling them to construct, maintain and restore places of worship.
216. It will be recalled that in 2008 the Parliamentary Assembly
adopted
Resolution 1625
(2008) on Gökçeada (Imbros) and Bozcaada (Tenedos): preserving
the bicultural character of the two Turkish islands as a model for
co-operation between Turkey and Greece in the interest of the people
concerned, which the Turkish authorities are invited to implement.
In this respect, the Turkish authorities mentioned notably the reopening
of the Greek elementary school of Gökçeada in January 2012.
217. In March 2010, the Venice Commission adopted an opinion on
the legal status of religious communities in Turkey and the right
of the Orthodox Patriarchy of Istanbul to use the adjective “Ecumenical”.
218. While acknowledging that the recent reforms to Turkish legislation
have improved the lot of the non-Muslim religious communities, the
Venice Commission notes that, according to the European Court of
Human Rights, the fundamental right of freedom of religion secured
by Article 9, read in conjunction with Article 11 of the European
Convention on Human Rights, provides inter
alia the possibility for religious communities as such to
obtain legal personality, whereas in Turkey they may only set up
foundations or associations in support of the religious community.
The Venice Commission points out that the possibility of obtaining
legal personality is important, especially for securing access to
justice and protection of property rights.
219. The Venice Commission further considers that any breach of
the Orthodox Patriarchy’s right to use the title “Ecumenical” would
constitute a violation of the Orthodox Church’s independence under
Article 9 of the Convention. The Commission finds no indication
that the Turkish authorities prevent the Patriarchy from using this
title and that they are under no positive obligation to use it themselves.
The Commission does not, however, see any concrete or legal reasons
which would prevent the authorities from addressing the Ecumenical
Patriarchy by its historic and generally recognised title.
220. Apart from this clarification, several advances are to be
noted, as emphasised by the Commissioner for Human Rights, Thomas
Hammarberg, concerning the return of the former orphanage on Büyükada
Island to the Ecumenical Patriarchate on 20 November 2010, following
the judgment of the Court,
the
religious celebrations in the Monastery of Sumela at Trabzon and
in the Armenian church on Akdamar Island in August and September
2010, the adoption of circular No. 2010/13 instructing the administrative
authorities to pay close attention to the protection of non-Muslim
cemeteries and to the execution of court rulings on property disputes between
non-Muslim foundations and the State, and the instructions issued
to the authorities responsible for instituting proceedings against
publications containing material inciting hatred and hostility towards
non-Muslim communities.
221. During my visit in January 2011, I had an opportunity to meet
representatives of various religious communities (Jewish, Armenian
Turkish, Alevi, Syriac Orthodox). I also met His Holiness Bartholomew
I, the Ecumenical Patriarch, in November 2012.
222. At our talks, the Ecumenical Patriarch expressed his confidence
in the dialogue with the Turkish Government, emphasised the current
government’s openness towards minorities and welcomed the progress made
regarding the granting of Turkish nationality to the Metropolitans
and
the return of certain property. Nonetheless, he expressed regret
that the seminary of Halki, closed since 1971, had not yet reopened.
Lastly, he told me of his hopes for the discussions on the concept
of religious minorities and citizenship and the prospect of equality
between all Turkish citizens being enshrined in the future constitution.
223. The contacts I had with the Jewish community in January 2011
confirmed that the relations cultivated between their community
and the Turkish Government are satisfactory on the whole, despite
a more tense geopolitical context than in 2008. These representatives
again conveyed their anxiety over the rise of anti-Semitism and
sundry acts of vandalism towards the community and the hate speech
broadcast by certain extremist media, conveying indiscriminate parallels
between Israel and Judaism.
6.4.2. The Alevi community
224. The demands of the Alevi community retain their current
relevance. To recapitulate, Alevism, one of the branches of Islam,
is Turkey’s second religious belief after Sunni Islam with 15 to
20 million members, about a third of the Turkish population. In
particular, the implementation of the
Hasan
and Eylem Zengin v. Turkey judgment
of the European Court of Human Rights of 9 October 2007 on the obligatory
teaching of religion and morals was discussed with the Alevi community.
The execution of this judgment was also broached by the Commissioner
for Human Rights, Thomas Hammarberg, in his letter to the Turkish
authorities of 16 December 2010, in which he expresses regret at
the lack of financial aid to the Alevi community and the failure
to recognise Alevi places of prayer (cemevi
)
as places of worship, and stresses that the right to educate Alevi children
in accordance with the religious convictions of Alevi parents must
be respected (following the
Zengin v.
Turkey judgment).
225. The Turkish authorities replied that, in the context of the
interfaith dialogue opened with the representatives of the non-Muslim
communities, seven workshops co-ordinated by the Minister of State, Mr Celik,
had been organised with the Alevi community. A consensus has been
reached that the legal status of the Alevi places of worship needed
to be recognised (a legal committee has been set up and has prepared a
detailed report on the present position and the requisite measures,
now being examined by the Minister of State), and the lesson content
for religious and moral instruction needed to be reviewed: following
the judgment in the case of
Hasan and
Eylem Zengin v. Turkey, religious and moral instruction
was replaced when school resumed in 2007 by a course including references
to the beliefs of the Alevi-Bektashi. However, the consultations
revealed the need to revise the textbooks on religious and moral
instruction. Having regard to the opinions of the representatives
of the Alevi, Jaaferi (Caferi) and Nusayri communities, a new commission
has been created. The revised course, approved by the Minister for
Education on 31 December 2010, was introduced in 2011-2012 and embodies
various themes.
226. The Alevis’ demands were repeated to me during my visit in
November 2012, and related to recognition of a legal status for
their places of worship (cemevi), the teaching of Alevi religious
education by Sunnis, an end to obligatory religious education at
school, the return of confiscated property, the eventual abolition
of the Diyanet (the central administration in charge of cults),
and reform of the electoral system to ensure better representation
of Alevis in parliament. It should be noted that several incidents,
reflected in the press, targeted Alevi families in 2012.
227. In the
Sinan Isik v. Turkey judgment
concerning the “religion” endorsement on identity cards (deemed contrary
to Article 9 of the European Convention on Human Rights on freedom
of thought, conscience and religion),
the European Court
of Human Rights held that removal of the box for religion could
constitute a suitable form of redress ending the violation found.
The Turkish authorities indicated in February 2011 that a revision
of identity cards was in progress.
6.4.3. The Kurdish issue
6.4.3.1. The situation in
south-eastern Turkey until 2012
228. The Turkish authorities, in accordance with the Treaty
of Lausanne of 1923, recognise “non-Muslim Turkish nationals” as
minorities, as indicated in paragraph 208, but they do not recognise
ethnic differences between “Turkish nationals” as the definition
of another type of minority. However, it is on the basis of their ethnic
identity that the Kurds assert their difference and seek recognition.
229. Constitutionally, citizens in Turkey are “Turkish citizens”.
The definition of the term “citizenship” is therefore at the heart
of the Conciliation Committee’s discussions and is perhaps one of
the key issues to be resolved. The Kurdish demands would correspond
to another definition, for instance “citizen of the Republic of Turkey”.
230. The Kurdish problem is the most difficult that the country
has to deal with. The period 2011-2012 was marked by an upsurge
in violence following the June 2011 parliamentary elections. The
increase in PKK terrorist acts and the intensification of military
operations in southern Turkey (particularly in the Şemdinli region (Hakkâri
province), an area which the PKK sought to control), led to hundreds
of deaths on both sides. The think-tank “International Crisis Group”
referred to 700 fatalities in the 14 months of fighting up to September 2012.
The situation is
further aggravated by an international context conducive to a strengthening
of the PKK’s rear bases in northern Iraq and northern Syria.
231. On 28 December 2011, 34 young villagers, who were engaged
in smuggling operations with neighbouring Iraq, were mistaken for
PKK members and were killed in Uludere by the Turkish air force,
which acknowledged its mistake. The authorities expressed their
“deepest sorrow”
over the incident and offered financial
compensation to the families, which was refused. A parliamentary
investigation committee was set up and administrative and judicial
processes continue. For the time being, however, it has not yet
been clearly established where the responsibility lies and these
acts remain unpunished. The whole of Turkey has been shocked by
this tragedy and it is imperative that now, one year later, the
matter be fully elucidated so that justice can be done.
232. On 12 August 2012, a member of parliament from the opposition
party, CHP, and member of the Human Rights Committee, was kidnapped
by the PKK. This was the first abduction of a member of parliament,
joining a long list of teachers, engineers and soldiers kidnapped
by the PKK. The CHP called for an extraordinary parliamentary sitting
on 14 August 2012. Because there was no quorum, as a third of MPs
must be present at the opening, this sitting did not take place.
The AKP and MHP had said that they refused to take part so as not to
encourage the PKK to pursue its terrorist activities.
233. The dissemination on 17 August 2012 of a video showing a meeting
between MPs from the BDP party and PKK militants in south-eastern
Turkey caused considerable agitation. The Prime Minister urged the judiciary
to take all necessary steps to lift the immunity of these MPs. The
matter was referred by the prosecutor to the Ministry of Justice,
and then to parliament. The procedure is still ongoing. Lifting
the immunity of these MPs is the subject of much debate and the
Kurdish MPs from the AKP have made it known that they do not wish
to support this approach. The investigation of case files on lifting
of immunities submitted to the Turkish Parliament has, for the time
being, been postponed due to the ongoing peace process.
234. The Kurdish question has become even more sensitive following
recent developments in Syria: the new stance adopted vis-à-vis the
Massoud Barzani crisis, the closer ties between Iraqi and Syrian
Kurds, and the links which Turkish Kurdish organisations have established
with the PYD, a Syrian Kurdish organisation close to the PKK, in
the north of Syria, are all matters of concern for the Turkish authorities.
235. The “democratic opening” begun by the Turkish Government in
2009 has somewhat run out of steam. It had made it possible to open
up the debate on the Kurdish issue, allowed Kurdish to be used in
the public sphere, in the media and in election campaigns, and had
meant that Kurdish could be taught in universities. Of note, in
this connection, were the following:
- the introduction of Kurdish teaching and private lessons
for learning local languages and dialects in 2003/2004 in Şanlıurfa,
Batman, Van, Adana, Diyarbakır, İstanbul and Kızıltepe (Mardin).
Most of these cities are situated in south-eastern Turkey. However,
all these courses were subsequently closed down by their founders
and owners owing to lack of interest;
- postgraduate education in Kurdish provided by the Mardin
Artuklu University. The Higher Education Board (YÖK) authorised
the opening of a Kurdish Language and Literature Department in Muş
Alparslan University in 2011;
- The broadcasting in languages and dialects used traditionally
by Turkish citizens in their daily lives by Turkish Radio and Television
(TRT) and private television channels and radio stations. Broadcasting
in local languages and dialects includes news, music and documentaries
in Bosnian, Kirmanchi, Zaza, Circassian and Arabic for a maximum
of 60 minutes per day and five hours per week on radio and 45 minutes
per day and four hours per week on television;
- the permission given since 7 March 2006 by the RTUK to
several private radio stations and television channels to broadcast
in Kirmanchi and Zaza. They began broadcasting in these dialects
on 26 March 2006;
- the decision taken by Supreme Audiovisual Council dated
30 May 2006, authorising the broadcast of musical works and films
without any time limit throughout the day;
- the entry into force of the Law on Compensation of Damages
Arising from Terrorism in March 2008.
236. However, the repeated violations of freedom of expression
and assembly (see above), the organisation of mass trials (such
as the KCK trial)
and the resumption
of terrorist acts have undermined this policy of openness. The claims
expressed in Diyarbakır related primarily to the teaching of and
in Kurdish. The rapporteur attempted to meet some of those held
in prison, in particular Muharrem Erbey, Vice-President of the Turkish
Human Rights Association. The request was a little late but was
submitted to all the relevant local authorities, including the prosecutor’s
office and the Governor of Diyarbakır. The request was also sent
on that day to the relevant directorate of the Ministry of Justice
for the attention of the Minister. I did not receive a reply to
my request. This should be noted.
237. My visit to Diyarbakır on 10 January 2011 provided an opportunity
to discuss the Kurdish issue with the authorities and civil society
representatives, at a time coinciding with the resumption of the
trial of 151 human rights activists, elected representatives and
journalists. The tragic events in south-eastern Turkey and the terrorist
acts which have left 40 000 people dead have been traumatic for
Turkey.
238. With regard to the teaching of Kurdish, it emerged from my
exchange of views on 12 January with Mr Hüseyin Çelik, Vice-President
of the AKP and former Minister of Education and Culture, that the
optional teaching of Kurdish in schools was being considered. This
would be an expansion of the freedoms already granted, subject to
the outcome of discussions by officials of this party, which it
would appear they have agreed to enter into – in any case the proposal
was not ruled out. I note that, for the CHP, it is essential that
Turkish remains the official language of the country. On the other
hand, the party believes that the teaching and learning of Kurdish
should be authorised, in line with each individual’s preferences.
239. My own opinion was that the possibility offered to candidates
of conducting an election campaign in a language other than Turkish
was consistent with this process of outreach which must be continued
and enhanced.
240. The claims of the Kurds also concerned the permission for
plaintiffs to use their mother tongue. The adoption, in November
2012, of a law allowing the use of a language other than Turkish,
in which the plaintiffs expresses themselves better, is a positive
response. All the other problems relating to the Kurds fall quite naturally
into the debate on reform of the Constitution and should therefore
find the requisite political response, including in the context
of devolution in accordance with the European Charter of Local Self-Government.
241. Concerning the use of languages at local level, the Congress
of Local and Regional Authorities, in Recommendation 301 (2011),
recommended that the Committee of Ministers invite the Turkish authorities
to “pursue the Government’s Democratic Initiative, and in this context
to implement Congress Recommendation 229 (2007), namely to permit
municipal councils to use languages other than Turkish in providing
public services and to reform the Municipality Law to allow mayors
and municipal councils to take ‘political’ decisions without fear
of proceedings being taken against them” (paragraph 9.e).
242. Moreover, the Congress deplored the fact that “no step had
been taken to implement Congress Recommendation 229 (2007), namely
to permit municipal councils to use languages other than Turkish
in providing public services and to reform the Municipality Law
to allow mayors and municipal councils to take ‘political’ decisions
without fear of proceedings being taken against them”. Moreover,
Turkey had neither signed nor ratified the Additional Protocol to
the European Charter of Local Self-Government on the right to participate in
the affairs of a local authority, the Charter for Regional or Minority
Languages and the Framework Convention on the Protection of National
Minorities.
6.4.3.2. The victims of
terrorist acts of the PKK
243. It should be noted that PKK terrorism has claimed
40 000 lives over the last three decades and traumatised the entire
population, as can be strongly sensed. The PKK has been recognised
as a terrorist organisation by the European Union, NATO and some
countries such as the United States, the United Kingdom and Canada
in particular.
244. We roundly condemn the acts of violence perpetrated by the
PKK, which especially affect the civilian population, including
in schools, and seek to establish a climate of terror among civilians.
The settlement of the Kurdish question presupposes the cessation
of all violence, a precondition for any negotiations.
245. I also note that the violence continues. On 10 January 2013,
three female Kurdish militants, including Sakine Cansiz, the co-founder
of the PKK in 1978 and a close Öcalan associate, were assassinated
at the “Kurdish information centre” In Paris. These assassinations
were unanimously condemned, including by Prime Minister Erdoğan
and the Deputy Prime Minister and government spokesman, Mr Arinç.
It will be the responsibility of the French authorities to investigate
this case. It is my hope that this intolerable violence will not
now jeopardise the continuation of the talks initiated by the Turkish
authorities. Let us call on everyone responsible to do their utmost
to bring about a political solution to this issue and ensure that
this solution is enshrined in the future constitution.
6.4.3.3. The case of Abdullah
Öcalan
246. The state of health of Abdullah Öcalan, held since
February 1999 in the type F closed high-security prison on Imralı
Island, had raised concern among the members of the Assembly
and
received special attention during Mr Holovaty’s last visit to Turkey
in 2008.
It should
be noted that the European Committee for the Prevention of Torture
and Inhuman or Degrading Treatment or Punishment carried out a visit
to the prison on 26 and 27 January 2010. The delegation inspected
the conditions under which Abdullah Öcalan and other inmates were
held, the group activities available to prisoners and the application
of prisoners’ right to receive visits from their close family and
lawyers. All prisoners were interviewed by the delegation. The visit was
made subsequent to the recent provision of new custodial premises
on the island and to the transfer there of five additional prisoners
from other prisons.
247. In its report published on 9 July 2010, and on the basis of
the information gathered, the CPT noted the progress made and concluded
that Abdullah Öcalan’s conditions of detention had improved compared
with those observed in 2007 during the last visit, noting that the
prisoner had been moved to a structure where contacts with other
prisoners and access to a wide range of activities were possible.
The CPT also noted improved access for lawyers and family members
to Imralı Island. The CPT accordingly decided to close the procedure
commenced in March 2008 under Article 10.2 of the European Convention
for the Prevention of Torture and Inhuman or Degrading Treatment
or Punishment while continuing to keep track of the situation of Abdullah
Öcalan and the other Imralı prisoners, and retaining the possibility
of reopening this procedure should the improvements not prove to
be sustained.
248. However, information on the situation of Abdullah Öcalan since
July 2011 has been somewhat worrying and would seem to indicate
that he has once again been placed in solitary confinement, denied
access to his layers, and allowed extremely limited contact with
his family. An end to Öcalan’s solitary confinement was one of the
three demands made by the 700 or so Kurdish prisoners on hunger
strike, which ended after 68 days from September to November 2012,
as a result of an extraordinary appeal from Öcalan. This repositioned Öcalan
in the negotiations for the disarmament of the PKK, with Öcalan
claiming to be the sole speaking partner for continuation of the
negotiations. PKK officials have said that Öcalan’s transfer from
Imralı would undoubtedly be a precondition for any further negotiations.
6.4.3.4. Recent political
initiatives to solve the Kurdish problem since summer 2012
249. In recent months, in view of the resurgence of violence
perpetrated by the PKK and the operations carried out by the army,
several political initiatives have been taken and are worthy of
mention.
250. In June 2012, the CHP opposition party suggested that a multi-party
parliamentary committee be set up, assisted by a group of wise persons,
tasked with discussing how to resolve the Kurdish question by means
of a “road map”. On 6 June 2012, the CHP leader, Mr Kılıçdaroğlu,
was received by Prime Minister Erdoğan, who welcomed the initiative,
leaving it to the CHP to persuade the MHP and the BDP to support
this initiative. This failed.
251. In June 2012, Prime Minister Erdoğan met the MP Leyla Zana,
the symbol of Kurdish political resistance, who expressed her confidence
in the Prime Minister’s commitment to solving the Kurdish question. Nonetheless,
this approach gave rise to criticism within the pro-Kurdish BDP
party.
252. The Speaker of Parliament, Mr Çiçek, had drawn up an 11-point
document aimed at obtaining “a national consensus against terrorism”
to resolve the Kurdish question. However, this did not receive the
hoped-for response among the political class, including among the
members of the AKP.
253. In November 2012, after 68 days on hunger strike, the approximately
700 Kurdish prison inmates involved ended their action following
an appeal by Abdullah Öcalan. The authorities have given consideration to
the three demands of the hunger strikers: 1) the draft law on the
use of a language other than Turkish in courts, even where the accused
are proficient in the official language, should be examined in 2013;
2) the question of teaching Kurdish and the use of a language other
than Turkish in public life has been referred to the work on revision
of the Constitution; 3) with regard to the end to Öcalan’s solitary
confinement demanded by the strikers, the Minister of Justice has
assured me that Abdullah Öcalan would have access to his lawyers for
civil law matters (he takes the view that once tried and convicted,
Öcalan no longer needed to see his lawyers, which the latter refute,
referring to pending cases before the European Court of Human Rights)
and that moreover he has access to his family.
254. During my visits, I spoke to some of the 70 Kurdish AKP MPs,
most of whom had been elected in the eastern and south-eastern regions
of Turkey.
They
told me of the difficulties they faced in carrying out their parliamentary
office, the attacks they were subjected to, and their position vis-à-vis
the Kurdish question. It clearly emerged from these discussions
that these parliamentarians were of the opinion that a proposal
for a solution to the Kurdish question could only come from the
Kurds themselves. I also noted that their position was, within the
AKP, less categorical than that of the Prime Minister, when for
example they raised the issue of lifting the immunity of the 10
BDP MPs who had met PKK activists in summer 2012.
255. I note that Prime Minister Erdoğan had a long meeting on 13
December 2012 with the AKP MPs from 13 provinces in southern and
eastern Turkey. According to information published in the press,
it would appear that agreement had been reached on the use of more
inclusive language vis-à-vis the Kurds, the continuation of reform,
the drawing up of a new road map for the Kurdish question and, with
regard to lifting the immunity of the BDP MPs, the commitment to
avoiding a repetition of a situation which had already occurred
in March 1994.
Following
the escalation of violence in 2011 and 2012, and the hard-line statements
of the Prime Minister and certain members of the government vis-à-vis
the Kurds, this meeting could also seek to lay the foundations of
a repositioning of the AKP in the predominantly Kurdish regions,
with a view to the 2014 and 2015 elections.
256. In December 2012, talks between the Turkish secret services
and Abdullah Öcalan, which were suspended in 2011 at the end of
the failed “Oslo process”, were resumed on the island of Imrali.
The current talks (also known as the “Imrali process”) could result
in the submission of a road map setting out plans for, among other
things, disarming the PKK and the cessation of hostilities and enabling
PKK activists to leave Turkey and settle in third countries other
than members of the European Union or Turkey’s neighbours. As regards
Mr Öcalan's conditions of detention, Prime Minister Erdoğan has
on several occasions ruled out his being placed under house arrest
or allowed to leave the island of Imrali, which is one of the PKK’s
demands. A general amnesty for PKK activists has also been refused,
although the CHP would not seem to be opposed to this provided that
it also covers the people convicted in the Ergenekon and Balyoz
trials.
257. Pursuant to these talks, and for the first time since 1999,
two members of parliament, Ayla Akat Ata of the BDP and Ahmet Türk,
an independent and Co-Chair of the Democratic Society Congress (DTK),
were given permission by the Minister of Justice to visit Abdullah
Öcalan on the island of Imrali on 3 January 2013.
A second delegation consisting of
three BDP parliamentarians, Sırrı Süreyya Önder, Pervin Buldan and
Altan Tan, was authorised to meet Abdullah Öcalan on 23 February
2013.
258. I wish to note that the approach initiated by Mr Erdoğan in
favour of the resumption of talks meets with the approval of the
major players in Turkish political life – especially the CHP and
the BDP – with the exception of the nationalist party MHP. This
is a development that should be monitored and supported.
6.5. Gays, lesbians,
bisexuals and transsexuals (LGBT)
259. We have received information about difficulties encountered
by the gay, lesbian, bisexual and transsexual community (LGBT).
I refer in particular to the report
by Mr Andreas Gross (Switzerland, SOC) on “Discrimination on the
basis of sexual orientation and gender identity”.
For instance, on 10 March 2009, a
recognised transsexual human rights militant, a leading light of
the association Lambda Istanbul, was fatally stabbed. It was the
second recent murder of a member of this organisation. Between January
and May 2009, five murders of transsexuals were reported in Turkey,
incidents which are part of a regular pattern – for example, 15
gay men and transsexuals were reportedly murdered between January
and October 2007.
NGOs
have condemned this atmosphere of violence founded on gender identity
in Turkey. Investigation of the violent acts committed against LGBT
people, prosecution of the suspects and passing of effective legislation for
ensuring equality are essential measures to take in order to end
these murders.
260. I encourage Turkey to take every step, educational measures
included, to combat all forms of discrimination, those founded on
sexual orientation among them, adopt the relevant legal and constitutional provisions,
and finally, ensure their full implementation. In that respect,
I draw attention to Committee of Ministers Recommendation CM/Rec(2010)5
on measures to combat discrimination on grounds of sexual orientation
or gender identity.
6.6. Combating illiteracy
and violence against women
261. In its
Resolution
1380 (2004), the Assembly invites Turkey to “continue efforts to
combat female illiteracy and all forms of violence against women”.
262. Violence against women remains a persistent problem in Turkey,
as in all the Council of Europe member States. According to a study
made by the organisation Human Rights Watch, 42% of women over 15
years of age in Turkey and 47% of country-dwelling women have undergone
physical or sexual violence at the hands of their spouse or partner
at least once in their lives.
263. I should like to commend the major legislative advances achieved
over the last few years: the new 2005 Penal Code prescribing life
imprisonment for the perpetrators of murders prompted by custom/honour.
The General Directorate of Women’s Affairs has launched intensive
programmes and campaigns for training and awareness raising, some
aimed at police officers and magistrates, on gender equality and
violence against women, including “honour crimes”.
264. The 2005 Penal Code contains provisions intended to strengthen
the protection of women, and classifies sexual offences among “crimes
against persons” and no longer “crimes against society”. Sexual
assault on one’s spouse is treated as an offence. There are legislative
provisions against sexual harassment in the workplace. The law on
protection of the family (1998, amended in 2007) and its implementing
decree (2008), as well as the law on combating violence against
women, adopted on 9 March 2012, have extended and diversified protective
measures for women. Two national action plans on the themes “Combating
domestic violence against women (2007-2010)” and “Gender equality
(2007-2013)” are being implemented with the participation of all
stakeholders.
265. I was told of many initiatives in the field of combating violence
against women, in particular the training programmes that have been
run since 2006,
the introduction of a
system for collecting data in police stations on domestic violence,
the signing of an agreement between the Ministry for Family Affairs
and Social Policies and the Ministry of the Interior regarding the
training of gendarmes working in rural areas, including on so-called “honour”
crimes, the activities of the parliamentary Committee on Equal Opportunities
for Women and Men established in 2009, the setting up of violence
prevention and monitoring centres (Şiddet Önleme ve İzleme Merkezleri)
open full-time in 14 pilot provinces
offering legal,
psychological and financial aid to victims and providing rehabilitation
programmes for the perpetrators of violence.
266. There should also be greater capacity to offer victims accommodation.
In February 2013, 95 centres could accommodate 1925 female victims
of violence, but demand is increasing.
The law on municipalities provides
for the creation of women’s shelters in all towns with more than
50 000 inhabitants. The capacity of these centres should be increased
to 3 000 places by 2015.
267. Turkey’s contribution, including that of the Grand National
Assembly, to the Council of Europe Campaign “Stop domestic violence
against women” (2006-2008) deserves commendation. The launching
in 2006 of the parliamentary dimension of the Council of Europe
campaign proceeded under the aegis of the Assembly’s Committee on
Equal Opportunities for Women and Men, chaired at the time by Ms
Gülsün Bilgehan (Turkey, SOC). It was during the Turkish Chairmanship
of the Committee of Ministers that the Council of Europe Convention
on preventing and combating violence against women and domestic
violence was opened for signature. Turkey was one of the first countries
to sign it, in Istanbul on 11 May 2011 – and the first country to ratify
it in March 2012, and was undeniably a prime mover in advancing
the preparation of a European legal instrument designed to protect
women better.
268. The question of violence against women in Turkey was addressed
in the
Opuz v. Turkey judgment delivered
on 9 September 2009
in
which the European Court of Human Rights criticised the authorities’
lack of diligence and the ineffectiveness of the judicial measures
taken against the perpetrator of the violence. It concluded that
the Turkish authorities had failed to preserve the life of the applicant’s
mother (violation of Article 2) and not honoured their obligation
to take protective measures in respect of the applicant in the form
of effective prevention shielding her from the grave bodily injuries
inflicted on her by her ex-husband (violation of Article 3). In
the ambit of Article 14 (prohibition of discrimination), the Court
ascertained for the first time that the applicant had proved that
domestic violence chiefly affected women and that the widespread
and discriminatory inaction displayed by the Turkish courts created
a favourable climate for this violence. Considering the circumstances,
the Court held that the violence inflicted on the applicant and
her mother was to be considered founded on sex and therefore constituted
a form of discrimination against women.
269. Despite the reforms carried out by the Government in recent
years, the overall unresponsiveness of the judicial system and the
impunity enjoyed by the aggressors, as found in the instant case,
indicated that there was insufficient commitment to take appropriate
action to address domestic violence. Thus there was a violation
of Article 14 in conjunction with Articles 2 and 3”. Today Ms Opuz,
still threatened by her ex-husband, is under close protection.
270. Despite the passage of the law on the protection of the family
in 2007, the organisation Human Rights Watch pinpoints numerous
shortcomings: the law excludes from its scope divorced or unmarried
women, the response of the police and justice authorities in the
event of a complaint being lodged is inadequate, and there are too
few shelters for victims of violence and insufficient monitoring
of the measures to keep abusers away from victims.
271. On 9 March 2012, in parallel to the ratification of the “Istanbul
Convention”, a new law to help combat violence against women was
passed by parliament, following consultation with women’s organisations
that were very much involved throughout the legislative process.
This law seeks to improve the effectiveness of the assistance provided
to victims of domestic violence with due regard for human rights
and gender equality, granting temporary financial assistance to
women and their children residing in centres, including financial assistance
for childcare, enhanced protection for the victims of domestic violence
given death threats, steps to rehouse victims and the possibility
of acquiring a new identity, and penalties for civil servants who
fail to take the appropriate measures when informed of instances
of domestic violence.
272. Despite the clearly stated commitment of the Minister, implementation
of these arrangements has so far been inadequate and the law is
not sufficiently applied by judges and prosecutors. It is essential
to strengthen training in this field and to punish any breaches
or lack of diligence on the part of institutions. There are too many
tragedies suffered by women who had asked the authorities in vain
for help.
273. Lastly, I would add that combating violence against women
should be seen in the context of promoting gender equality. Clearly,
progress has been made but women’s participation in parliament (4.4%
in the general elections of 2002, 9.4% in 2007, then 14.2% en 2011),
in local government (0.6%) and on the labour market is still poor.
The government has only one woman, Ms Şahin. Only two of the 81
provinces are governed by women (Tunceli and Aydın). Women’s participation
on the labour market was 30.5% in 2011 (as opposed to 63% in the
European Union).
It is important to ensure the
implementation of the labour code related notably to non-discrimination
and wage equality and to continue the programmes to help people
find employment initiated in recent years (financial aid, tax incentives
for women starting businesses, access to microcredit, setting up
a Women Entrepreneurs Council in the Turkish Chamber of Commerce,
etc.). On this subject, I refer to the Resolution by the European
Parliament, adopted on 22 May 2012, on a 2020 Perspective for Women
in Turkey.
274. Female illiteracy is another major obstacle to women’s participation
in public and economic life, to their empowerment and to their financial
independence. The Minister for Family Affairs and Social Policies
estimates the number of illiterate women to be three million, of
whom 2.3 million are aged 50 or more. Eliminating illiteracy is
one of the stated objectives of the government’s Vision 2023. Financial
aid for girls to attend primary and secondary school (the aid being
paid to mothers) is provided for families most in need and awareness-raising campaigns
for the education of girls aged 6 to 14 have been run in conjunction
with UNICEF. Over one million women and girls attended literacy
programmes between 2008 and 2010, including in the regions of the
south and the south-east where literacy rates among women rose from
60% in 2000 to 70% in 2010. These measures have resulted in an increase
in the primary school attendance rate (from 92.4% in 2001-2002 to
99.3% in 2010).
275. In its awareness-raising campaign
against
early and child marriages,
the
UNFPA highlights the link between poverty, illiteracy, child brides
and the greater risk of girls being exposed to physical, psychological
and sexual violence. Such marriages remain a problem in Turkey:
child marriages account for one in three marriages. In 50% of cases,
these are marriages between illiterate boys and girls. I refer to
the work of the Parliamentary Assembly on this issue,
which
is a clear violation of human rights and children’s rights, and
I welcome the fact that the Conciliation Committee has given thought
to including preventing such marriages in the future constitution.
276. I also note that the Ministry of State for Women and Family
Affairs was replaced in 2011 by the Ministry for Family Affairs
and Social Policies,
emphasising the priority attached
to promoting the family, a key issue often underscored by Prime
Minister Erdoğan. His encouragement for women to have at least three
children and the controversy which erupted in 2012 on the questioning
of the right to abortion,
which have alarmed women’s
associations, call for the utmost vigilance.
277. The Global Gender Equality Gap Report 2012 – which measures
“economic participation and opportunities”, “educational outcomes”,
“health and survival” and “political capabilities” – ranks Turkey
124th out of 135 (slightly up from 2010 when Turkey was ranked 131st).
278. It is to be hoped that the future constitution will establish
gender equality and full respect for women’s rights, and that legislation
will create the conditions for the effective exercise of those rights,
ensuring greater participation in public and economic life, access
to employment through measures making it possible to reconcile motherhood
and a career, and zero tolerance with regard to violence against
women. The constitutional revision of September 2010 now authorises
positive discrimination. It is up to Turkey to seize this legal
opportunity to launch ambitious and innovative initiatives, substantially
improve the position of women in Turkish society, and make gender
equality and women’s contribution to economic life a vehicle for
growth – if Turkey wishes to be ranked among the top ten powers
in the world.
7. Conclusions
279. This progress report, which we present in 2013 following
the resumption of our missions in 2011, must be set in the context
of severe domestic upheaval (the Kurdish problem, the crisis in
Syria) and Turkey’s political transition (revision of the constitution)
which will come to an initial end with the 2014 presidential election
and the 2015 parliamentary elections.
280. We have deliberately emphasised Turkey’s complicated internal
and external political situation as this will make it possible to
gain a better understanding of the current problems. Turkey finds
itself in a transition phase that continues to evolve.
281. It should also be noted that Turkey is a Muslim country that
combines democracy with Islam while affirming respect for the principle
of secularism enshrined in the Constitution, an approach which is
observed with interest, in particular among the countries undergoing
“Arab Spring” revolutions, which are trying to find a way forward.
282. For the moment, we should note the far-reaching reform of
the army and the major trials in progress that affect all key political
and civil players – elected representatives, the press, university
teachers, students, journalists, and, of course, the Kurds. A purge
is taking place.
283. Some requirements set out in
Resolution 1380 (2004) concerning the post-monitoring dialogue with Turkey
have been met, such as the creation of the institution of ombudsman
or the ratification of certain important instruments, such as the
Convention on Laundering, Search, Seizure and Confiscation of the Proceeds
from Crime or the revised European Social Charter. It should also
be noted that Turkey was the first country to ratify the Council
of Europe Convention on Preventing and Combating Violence against
Women and Domestic Violence (the “Istanbul Convention”), and that
is a positive step.
284. While significant progress has been made, there are still
major reforms to be completed which form key points of Resolution 1380
(2004). The following still have to be finalised:
- the reform of the Constitution:
after the 2010 constitutional referendum, this task has been the responsibility
of a “conciliation” committee since 2011. Work is in progress and
the new constitution is eagerly awaited. It will perhaps define
the nature of a new system of governance. This point is therefore vital;
- lowering of the electoral threshold of 10%;
- recognition of conscientious objection;
- ratification of the Framework Convention for the Protection
of National Minorities and the European Charter for Regional or
Minority Languages;
- completion of the reform of the Criminal Code (ongoing
debate about the 4th package of judicial reforms, discussions about
strengthening freedom of expression, repeal of Article 301, etc.);
- continuation of training of judges and prosecutors;
- reform of local and regional government and decentralisation;
- lifting of the geographical reservation to the Geneva
Convention relating to the Status of Refugees.
285. We should, however, emphasise the significant progress made
in the field of justice, with the “3rd package of judicial reforms”
in 2012, the reform of the Penal Code now taking place and the discussions
going on in parliament about the “4th package of judicial reforms”.
The authorities should be encouraged to continue these efforts,
which have been judged insufficient by a public with greater expectations.
286. We note that the adoption of the “4th package of judicial
reforms”, being considered by the parliament, once again arouses
the same expectations. It should help to bring Turkish legislation
into line with the European Convention on Human Rights. The training
of judges, prosecutors and police officers is an absolute priority
for ensuring that these new laws are actually enforced. If these
reforms are to be fully implemented, it will be essential to ensure
that the mindsets and methods of those required to enforce the law
change at the same time.
287. The political system itself is set to change and has yet to
be defined. Will it be presidential? We will know the answer to
this question when the current work on drawing up the constitution
has been completed, and we will then ascertain the extent of the
powers provided for, the situation regarding checks and balances
and the actual nature of the system.
288. Let us remind Turkey that it is imperative for the Turkish
State to protect individual freedoms and make the individual the
focus of its human rights protection system, since this is the very
foundation of a genuine democracy.
289. During this decisive period, it will be necessary to be even
more vigilant and provide Turkey with the assistance it needs. It
will therefore be particularly advisable to have recourse to the
Venice Commission’s expertise, in order to ensure that the institutional
balances and the guarantee of constitutional freedoms comply with
the Council of Europe’s standards.
290. The current events in Syria will have further political, military
and human repercussions in Turkey. Refugees continue to flock to
the south of the country and the province of Hatay, where there
are now more than 180 000 in the accommodation centres. They are
being remarkably well looked after, and Turkey’s efforts, which
cast a different light on our sometimes highly critical view of
this country and its human rights practices, must be applauded.
This gives us good reason to believe and to hope that Turkey is
able to change its current practices in the other areas mentioned
above both with regard to human rights and the handling of certain political
situations.
291. The Kurdish issue is major problem and can only be solved
by political means.
- We firmly
condemn all forms of violence, and we deplore the deaths of 40 000
people and the recent assassination of three Kurdish militants in
Paris.
- We have taken note of the real progress made in terms
of recognising the linguistic and cultural rights of the Kurds.
- We urge that the “Imrali process” negotiations be continued,
as would seem to be the wish of Prime Minister Erdoğan and a majority
of political players. This involves negotiation with all interlocutors
who have to work together to bring about a solution to this problem.
292. It is essential that solutions be found to external problems,
especially that of Cyprus, in what purports to be a united Europe,
and within the Council of Europe, of which the two States concerned
are members. However, the negotiations are currently deadlocked.
It is to be hoped that initiative resumes, notably under the auspices
of the United Nations. Let us hope that the discovery of significant
gas deposits in the eastern Mediterranean will not increase tensions.
Peace in Europe still depends on the stability of the southern Mediterranean
and the entire Balkan area and it will remain fragile for as long
as various latent conflicts (border disputes, ethnic and political
disputes), such as the Cyprus question, are not settled.
293. Turkey, a founder member of the Council of Europe, is a candidate
for EU membership. It should be noted that the accession negotiations
seem likely to resume in 2013. Let us hope that the process leading
to EU membership, to which Turkey aspires, will progress favourably
with the opening of Chapter 22 (Regional policy and co-ordination
of structural instruments) in the negotiations and perhaps the opening
of additional chapters, in particular Chapter 23 (judiciary and
fundamental rights) and Chapter 24 (justice, freedom and security).
That would consolidate the process of reforms in Turkey.
294. As far as foreign policy is concerned, Turkey is having difficulty
in firmly establishing its multilateral position. The “zero problems”
doctrine in respect of its neighbours has its limits. It would seem
that Turkey’s desire to hold an important regional position extends
beyond the Middle East, in particular to the Balkans and Africa.
295. Its strategic position at the crossroads of the main networks
carrying gas and oil resources from neighbouring countries (Caucasus,
central Asia, Iran) leads Turkey to engage in active energy diplomacy.
296. We consider Turkey to be a key regional power. It is a benchmark
for many countries involved in the revolutions triggered by the
“Arab Springs”. Turkey therefore has a duty to push forward and
carry through its democratic reform process.