Print
See related documents
Resolution 2121 (2016)
The functioning of democratic institutions in Turkey
1. Turkey has been under post-monitoring
dialogue with the Parliamentary Assembly since 2004. In its Resolution 1925 (2013) on
the post-monitoring dialogue with Turkey, the Assembly encouraged
Turkey, a founding member of the Council of Europe and a strategic
partner for Europe, to pursue its efforts to align its legislation
and practices with Council of Europe standards and fulfil the remaining
post-monitoring dialogue requirements. Turkey has continued to face
a complex and adverse geopolitical situation with the war in Syria and
in the surrounding countries and terrorist attacks on its territory.
The ongoing conflict in Syria has brought further massive flows
of refugees to Turkey. The Assembly reiterates its appreciation
for the outstanding efforts made by the country since 2011 to host
nearly 3 million refugees (262 000 of whom are in refugee camps),
who are in need of accommodation, education and access to social
and medical care. For over five years, Turkey has been implementing
an “open door policy” to Syrians fleeing the war environment in
their country and, in compliance with its international obligations,
has abided by the principle of non-refoulement.
The Assembly expresses its appreciation for the measures taken by
the Turkish authorities to improve the living conditions of Syrian
refugees, in particular by allocating work permits since 15 January
2016. The Assembly also values the outstanding financial efforts
of the State to address this issue, despite remaining problems,
in particular the lack of access to any education for 400 000 Syrian
refugee children.
2. In August 2014, the country had its first direct election
of the President of the Republic. Parliamentary elections were organised
on 7 June 2015, and early parliamentary elections were held on 1
November 2015. While the Justice and Development Party (AKP) secured
a majority in parliament in November 2015, the Peoples’ Democratic
Party (HDP) – a political party with a pro-Kurdish stance, which
had previously entered parliament though the election of independent
candidates and subsequently formed a party group – entered parliament
for the first time as a political party, despite the 10% electoral
threshold, which the Assembly has repeatedly asked be substantially
lowered.
3. European Union integration remains a strategic objective for
Turkey. In the context of the 2016 EU–Turkey Agreement on the migrant
crisis, and the implementation of a road map towards liberalisation
of the visa regime, the Assembly welcomes the recent ratification
of Protocol No. 15 amending the European Convention on Human Rights
(CETS No. 213); the Council of Europe Convention on Laundering,
Search, Seizure and Confiscation of the Proceeds from Crime and
on the Financing of Terrorism (CETS No. 198) the Council of Europe
Convention on Action against Trafficking in Human Beings (CETS No. 197);
and the Additional Protocol to the Convention on the Transfer of
Sentenced Persons (ETS No. 167). The Assembly reiterates its belief
that the opening of additional chapters of the European Community acquis, in particular Chapter 23
(judiciary and fundamental rights) and Chapter 24 (justice, freedom
and security), would help consolidate the reform process and reinforce
the action undertaken by the Council of Europe for Turkey to align its
legislation and practice with Council of Europe standards. Relations
between Turkey and the European Union, which should be strengthened,
will be of great importance not only for the stability and prosperity
of the two sides, but for the entire region.
4. Recent developments in Turkey pertaining to freedom of the
media and of expression, erosion of the rule of law and the human
rights violations in relation to anti-terrorism security operations
in south-east Turkey have, however, raised serious questions about
the functioning of its democratic institutions. These findings are corroborated
by recent reports adopted by several Council of Europe monitoring
bodies, such as the European Commission for Democracy through Law
(Venice Commission), the Group of States against Corruption (GRECO)
and the Office of the Commissioner for Human Rights, which have
highlighted concurring and serious concerns that Turkey should address
without further delay.
5. The disclosure of corruption cases on 17 and 25 December 2013,
allegedly involving four ministers and the son of the then Prime
Minister Mr Recep Tayyip Erdoğan, marked the beginning of changes
in domestic political processes, in particular the adoption of restrictive
legislation (amendments to the Criminal Code and the Code of Criminal
Procedure in 2014 and the Internal Security Act of March 2015) and
the executive’s increased control over the judiciary (amendments
to the law on the High Council for Judges and Prosecutors in 2014),
the creation of special courts (“criminal peace judgeships”) in
June 2014 and the adoption of Law No. 5651 on the internet in March
2015, increasing the Turkish Telecommunications Directorate’s (TIB)
capacity to block websites.
6. The Assembly regrets that the peace talks to address the Kurdish
issue collapsed in summer 2015, putting at stake the process of
enlarging the cultural and linguistic rights of the Kurdish community,
initiated and advanced in the preceding period, including by its
political representation in parliament after the 2015 parliamentary
and early parliamentary elections. The breakdown of the peace talks
in April 2015 led to increased violence and terrorist attacks by
July 2015, bomb attacks by the PKK and retaliation measures by the
Turkish security forces, including curfews imposed since December
2015 in several districts in south-east Turkey in order to carry
out security operations.
7. In this context, the Assembly is very concerned about the
decision of 20 May 2016 by the Turkish Grand National Assembly to
strip a large number of parliamentarians of their immunity from
prosecution by temporarily suspending Article 83 (first sentence)
of the constitution, thus ruling out a case-by-case examination
based on the facts of the case. Even though MPs from all political
groups are concerned, the Assembly notes with concern that this
decision disproportionately affects the opposition parties, in particular
the HDP, many of whose members have been charged for their statements
under the anti-terror law (No. 3713). The Assembly, reiterating
its call in Resolution
1925 (2013), urges the Turkish Government to revise the
legislation and practices on terrorism in line with European standards,
by narrowing the scope of its definition and introducing a criterion
of proportionality.
8. The Assembly recalls that parliamentary immunity should first
and foremost enable elected representatives to work and express
themselves without fear of harassment by the executive, the courts
or political opponents. It is thus worried about the potential political
consequences of this decision, which could damage parliamentary
life and undermine the healthy political environment that Turkey
needs to tackle today’s challenges, including terrorist threats
and the urgent need to solve the Kurdish issue by political and
peaceful means. As there are allegations about the lack of independence
of the judiciary, the Assembly urges the Turkish authorities to
ensure that the cases brought against parliamentarians are handled
in due compliance with Council of Europe standards on fair proceedings
and trials and respect for freedom of expression, which Turkey has
pledged to uphold.
9. In recent years, Turkey has faced massive and repeated terrorist
attacks perpetrated by the so-called “Islamic State of Iraq and
the Levant” (ISIL/Daesh), the “Kurdistan Workers’ Party” (PKK) and
the PKK-affiliated “Kurdistan Freedom Hawks” (TAK). These attacks
have caused hundreds of casualties in Ankara, Suruç, Istanbul, Bursa
or Diyarbakır. In addition, the border city of Kilis has been targeted
by shelling from Syrian territory. The Assembly unequivocally condemns
these attacks and all terrorist action and violence perpetrated by
the PKK, Daesh or any other organisation, which can on no account
be tolerated. The Assembly stresses Turkey’s right and duty to fight
terrorism and address security issues in order to protect its citizens.
It recalls, however, that those security operations must be carried
out in line with international law, and in accordance with the principle
of proportionality and necessity. The right balance between security
and individual liberties must be found in Turkey.
10. Security operations have dramatically intensified in south-east
Turkey since August 2015. Despite assurances by the Turkish authorities
to keep a balance between freedom and security in the police and military
operations in south-east Turkey, so as to protect citizens’ right
to life, which is the most fundamental right, and to ensure public
security, the Assembly is very worried about the human consequences
of the unprecedented months-long, round-the-clock curfews imposed
in 22 districts, including Sur, Silvan (province of Diyarbakır),
Nusaybin, Dargeçit (province of Mardin), Sirnak Centre, Cizre, Silopi,
Idil (province of Sirnak) and Yüksekova (province of Hakkari). These
curfews affect 1.6 million people and have resulted in the displacement
of at least 355 000 people and in restrictions in access to water,
electricity, education and health care, including emergency medical
care, which has proved fatal for many residents. At least 338 civilians
were reported dead by the Human Rights Foundation of Turkey as at
20 April 2016. According to the Ministry of the Interior, between
July 2015 and 13 May 2016, these operations resulted in 458 security
officers being killed and 3 321 wounded, while the Chief of General
Staff of the Turkish Army announced that 2 583 PKK members had been
killed inside Turkish territory and 2 366 others in Iraq during
air strikes as at 23 May 2016.
11. As explicitly stated in the Venice Commission’s opinion in
response to the request by the Chair of the Monitoring Committee
of the Assembly, “the curfews imposed since August 2015 have not
been based on the constitutional and legislative framework which
specifically governs the use of exceptional measures in Turkey, including
curfew. To comply with this framework, any curfew measure should
be associated with emergency rule, as provided for in Articles 119
to 122 of the Constitution”. According to those articles of the
constitution, curfews can be declared only within the context of
martial law or emergency state rule; both require a parliamentary
decision for implementation, which was never taken. The Assembly
expects Turkey to abide by its own laws and amend its legal framework
in line with the Venice Commission opinion on this issue, dated 13 June 2016.
12. Despite efforts deployed by the Turkish authorities to provide
the displaced persons with food and accommodation, temporary jobs
in State agencies and social aid, including compensation for lost
income, the future of the these people is uncertain. It seems that
large parts of the areas under curfew were destroyed during and
after the curfews, and during the subsequent clearance operations
to remove buried explosive devices. The situation is especially
regrettable in the ancient part of Sur, which was classified as
a UNESCO world cultural heritage site in 2015.
13. There have been allegations of serious human rights violations,
notably in Cizre, which require due and effective investigation,
including the collection of evidence before the areas are cleared.
The Assembly believes that access to information through the increased
presence of the media and accurate and unbiased media coverage of
the situation in south-east Turkey, in addition to transparency
of the procedures and the prosecution of those who committed crimes
or abuses of human rights, would contribute to restoring confidence.
The Assembly notes that Turkey is one of the 116 countries to offer
an open invitation to the Special Procedures mechanism of the United
Nations Human Rights Council since 2001. The Assembly welcomes the
recent visits to south-east Turkey of the United Nations Working
Group on Enforced or Involuntary Disappearances in March 2016 and
of the Council of Europe Commissioner for Human Rights Mr Nils Muižnieks
in April 2016, and the announced visit of representatives of the
United Nations High Commissioner for Human Rights. It invites Turkey
to consider setting up a fact-finding team, including independent
experts and public figures trusted by all sides of Turkish society,
to observe the human rights situation in the affected districts
and publish credible reports. The Assembly further encourages Turkey
to strengthen national independent human rights bodies so as to
increase citizens’ confidence in, and use of, these mechanisms.
14. The Assembly also expresses deep concern over the deaths of
four civilians (Hüseyin Paksoy (16 years old), Serhat Altun, Cihan
Karaman and Orhan Tunç) after being seriously wounded during the
curfew in Cizre. Defying interim measures by the European Court
of Human Rights, the Turkish Government denied these civilians access
to medical aid. The Assembly notes that Ramazan Demir, the lawyer
who appealed to the Court for interim measures to transfer these
and many other wounded civilians to hospitals, was arrested on 4 June
2016.
15. The Assembly notes that administrative investigations have
been initiated against 63 security agents due to their misconduct
during the operations in south-east Turkey. It expects the Turkish
authorities to carry out effective investigations into all other
allegations of misconduct by security personnel during these operations.
Nevertheless, the Assembly is appalled by the preparations for new
retroactive legislation, already adopted by the parliamentary National
Defence Commission, which allows legal prosecution of human rights violations
committed by military personnel with the permission of their superiors
and empowers the military with the authority to conduct security
operations bypassing the jurisdiction of the courts under the pretext
of urgency. The Assembly is deeply concerned that such developments
could further infringe the rule of law.
16. The adoption by the government of an emergency decree on expropriation
on 21 March 2016 related to Sur (Diyarbakır) has raised concern
among displaced persons. The lack of information about legal procedures, future
urban construction projects and the right of displaced persons to
return to live in their neighbourhoods raises many questions. The
lack of transparent information fuels fears and insecurity among
those concerned. The Assembly expects Turkey to take due care of
the needs of the local population and ensure fair compensation for
the losses suffered by civilians in case of expropriation procedures,
which should be conducted in line with Council of Europe standards
while taking account of property rights and their safeguards, as
guaranteed by the European Convention on Human Rights (the Convention,
ETS No. 5).
17. The Assembly is also deeply concerned that the tensions and
clashes could spread to other parts of Turkey. It urges the PKK
to stop its terrorist attacks and lay down its arms. The Assembly
also urges the Turkish Government to use political means to stop
the escalation of violence. The Turkish Parliament, which could provide
a political forum for a peaceful resolution of the conflict, should
consider putting in place mechanisms to reactivate the peace process,
including a joint, cross-party parliamentary commission, or a “truth
and reconciliation” commission that would allow for a fresh impetus
and the healing of past traumas. Political solutions need to be
discussed in parliament by all the political forces involved. A
fair system of parliamentary inviolability – which excludes statements
inciting hatred, violence or the destruction of democratic rights
and freedoms – is thus necessary to ensure that issues of public
interest can be debated by elected representatives without fear
of executive or judicial interference.
18. The Assembly is also worried about the arrest in south-east
Turkey of 21 democratically elected Kurdish mayors and the dismissal
of 31 others on controversial charges of “aiding and abetting a
terrorist organisation”, which has further damaged the already weak
local governments in these conflict areas. The Assembly calls on all
political leaders at central and local levels to adopt a more inclusive
and tolerant approach to resolve existing problems through dialogue
and shared responsibility. Democratic political parties should condemn
and take a firm stance against terrorism in full respect of human
rights, the rule of law and Council of Europe standards.
19. The announced preparation of legislation which would empower
governors to appoint new mayors also raises questions with regard
to the respect of the provisions of the European Charter of Local
Self-Government (ETS No. 122), which Turkey ratified in 1992. The
Assembly reiterates its call for Turkey, in line with the post-monitoring
dialogue requirement, to further pursue decentralisation in full
respect of the territorial integrity of the country and to ratify
the European Charter for Regional or Minority Languages (ETS No.
148) and the Framework Convention for the Protection of National
Minorities (ETS No. 157), which could also contribute to restoring
confidence among communities.
20. With regard to freedom of expression and of the media, the Assembly shares the concerns
of the Council of Europe Commissioner for Human Rights about the
alarming scale of recourse to an overly wide notion of terrorism
to punish non-violent statements and criminalisation of any message
that merely coincides with the perceived interests of a terrorist
organisation. The Assembly urges Turkey to fully comply with its
obligations under all the human rights treaties it has ratified.
The Assembly remains concerned about the extensive interpretation
of the anti-terror law, which contradicts Council of Europe standards.
It thus reiterates the call it made in 2013 for Turkey to further
review its definitions of offences related to terrorism and membership
of a criminal organisation, in line with the Action Plan for the
Prevention of Violations of the European Convention on Human Rights,
adopted by Turkey in February 2014.
21. Recalling its Resolution
2035 (2015) on the protection of the safety of journalists
and of media freedom in Europe, the Assembly is concerned about
the latest developments in the areas of freedom of expression and freedom
of the media, which should be understood in the light of the case
law of the European Court of Human Rights with respect to Article
10 of the Convention. There are concerns that changes in recent
years in ownership of media companies serving business interests
were motivated by, and have resulted in, significant political influence
on the media.
22. The Assembly believes that the abusive application of Article
299 (Insulting the President of the Republic) – there were about
2 000 cases in two years against journalists and academics, but
also ordinary citizens – is leading to an undue restriction of freedom
of expression, considering the case law of the European Court of
Human Rights with respect to Article 10 of the Convention. It recalls
in this respect that defamation cases can be handled under civil
law procedures or under the general provisions of Article 125 of
the Criminal Code on insult.
23. The Assembly condemns the call by the Turkish Ministry for
Foreign Affairs for its citizens residing abroad to report cases
of disrespect to the President of Turkey with a view to filing cases
in foreign countries.
24. The Assembly is deeply concerned about the prosecution of
investigative journalists following their investigations into topics
of general interest. It should be possible to conduct domestic and
foreign investigative journalism on all topics, and in all regions.
The Assembly is appalled by the harsh prison sentences issued against
these journalists. It expects the judiciary to take future decisions
in the light of the well-established case law of the European Court
of Human Rights, and the authorities to harmonise the legislation
and its interpretation by domestic courts with Council of Europe
standards. In this respect, the Assembly praises the important role
played by the Constitutional Court of Turkey to secure freedom of
expression and of the media, and individual applications to the
Constitutional Court, which remain an effective mechanism to protect
rights covered by the European Convention on Human Rights.
25. The prosecution of academics who signed a peace declaration
calling for an end to the military campaign in south-east Turkey
and accusing the government of breaching international law (“We
shall not be part of this crime!”) is another example that raises
serious questions about the scope of the anti-terror law. Of the
initial 1 128 signatories of the declaration, 495 academics are
under investigation. On 14 January 2016, the police reportedly briefly
detained 27 of them. The Council of Europe Secretary General issued,
on 15 January 2016, a statement expressing his concern about these
arrests. Four petitioners (Esra Mungan, Muzaffer Kaya, Kıvanç Ersoy
and Meral Camcı) were arrested and detained on 16 March 2016 on
charges of “terrorist propaganda” (Article 7/2 of the anti-terror
law). The prosecutor in the first hearing decided to drop the charges of
terrorism and considered launching an investigation under Article
301 of the Criminal Code (insulting the State) – subject to the
authorisation of the minister of justice. In the meantime, the four
academics were released on 22 April 2016. Disciplinary and criminal
proceedings had been launched against other petitioners for a statement
calling for an end to the violence, which, for the Council of Europe
Commissioner for Human Rights, fell within the boundaries of free
speech, whether one agreed with their message or not.
26. The Assembly remains concerned about the large number of blocked
websites (110 000) and Twitter takedown requests. Blocking websites
appears to be a highly disproportionate measure which impedes the public’s
right to have access to, and to be provided with, information on
the internet, and negatively affects media pluralism and free expression.
The Assembly urges Turkey to upgrade its legal framework in line
with the European Convention on Human Rights, in particular to review
Law No. 5651 on the internet, in line with the recommendations of
the Venice Commission (to be adopted in June 2016) on the regulation
of publications on the internet and combating crimes committed by
means of such publications.
27. The Assembly recalls that journalists and others who work
in the media make an essential contribution to public debate and
the opinion-making processes needed in a democratic society. Council
of Europe member States have a positive obligation to ensure freedom
of expression, protection of journalists and access to information,
and to create the conditions to enable them to act as public or
social watchdogs and inform the public on matters of general and
public interest. Too many measures currently taken by the authorities, including
investigations, prosecutions and the interpretation of the Criminal
Code by domestic courts, have a chilling effect on the media. Attacks
on journalists and media outlets, seizure of media holdings (which undermines
property rights), pressure on journalists and punishment of journalists
doing their job lead to self-censorship. The Assembly therefore
urges Turkey to guarantee a favourable environment for freedom of expression
as guaranteed by Article 10 of the Convention and to implement Recommendation
CM/Rec(2016)4 of the Committee of Ministers on the protection of
journalism and safety of journalists and other media actors.
28. The Assembly believes that further improving the legal framework
to protect the freedom of expression would help the country to overcome
current restrictions. In the light of the March 2016 opinion of
the Venice Commission, the Assembly invites Turkey to:
28.1. repeal Article 299 of the Criminal
Code (Insulting the President of the Republic);
28.2. repeal Article 301 (Degrading the Turkish Nation, the
State of the Turkish Republic, the Organs and Institutions of the
State) or amend it to ensure that all the notions used in it are
clear, specific and predictable, and that its application is limited
to statements inciting violence and hatred and that its interpretation
by the domestic courts is in line with the case law of the European
Court of Human Rights;
28.3. limit the use of Article 216 and resort to – proportionate
– criminal sanctions only in cases of open incitement to violence,
armed resistance or uprising, and not to punish harsh criticism
against government policies. Moreover, it should only be applied
in extreme cases of religious insults that intentionally and severely
disturb public order, or call for public violence, and not for mere
blasphemy;
28.4. ensure a strict interpretation of Article 314 (Membership
of an Armed Organisation) so as to limit it to cases which do not
involve the exercise of the rights to freedom of expression and
assembly, in compliance with the established criterion in the case
law of the Court of Cassation that acts attributed to a defendant
should show “in their continuity, diversity and intensity” his or
her “organic relationship” with an armed organisation or whether
his or her acts may be considered as committed knowingly and wilfully within
the “hierarchical structure” of the organisation.
29. The Assembly encourages the Turkish authorities to address
these proposals in the framework of the working group on freedom
of expression created in 2016 by the Ministry of Justice and the
Council of Europe, as part of Turkey’s Action Plan for the Prevention
of Violations of the European Convention on Human Rights. It expects
the necessary amendments to the legislation to be prepared and adopted
in consultation with the Council of Europe.
30. It urges Turkey to further co-operate with the Council of
Europe and implement the recommendations by GRECO when carrying
out the judicial reform strategy, which aims at establishing a more
reliable justice system, executing judicial services in an independent
and impartial way and concluding trials within a reasonable time.
It welcomes, as a first step, the adoption of the Action Plan on
Enhancing Transparency and Strengthening the Fight Against Corruption
(2016-2019) on 30 April 2016 to address these issues.
31. With regard to respect for the rule of law, the Assembly is very concerned
about the recent statements made by the President of the Republic
and ministers declaring they would not respect a decision of the Constitutional
Court on the unlawfulness of the pretrial detention of investigative
journalists, which was based on the case law of the European Convention
on Human Rights. The Assembly urges Turkish officials to refrain from
unduly interfering in the judiciary and challenging the rule of
law. It appreciates, however, that all decisions of the Constitutional
Court resulting from individual applications have been implemented.
32. Independence of the judiciary is guaranteed by the constitution.
A number of judicial package reforms have been launched since the
constitutional referendum of 2010. They provide for stronger involvement
of elected judges and prosecutors in the High Council of Judges
and Prosecutors, which is a positive move. However, the recent developments
and amendments to the law on the High Council of Judges and Prosecutors in
2014 raised the issue of the lack of independence of the judiciary
and undue interference by the executive.
33. GRECO noted in its March 2016 report that the appointment
of the elected members of the High Council of Judges and Prosecutors
in 2014, the use of disciplinary proceedings, including the dismissal
of a number of members of the judiciary, and the potential influence
by the executive within this body, have further triggered the debate
concerning the role and the independence of the High Council of
Judges and Prosecutors, which seriously undermines public trust
in judicial institutions. The Assembly shares these concerns and
calls on Turkey to:
33.1. implement
GRECO’s recommendations, in particular to strengthen the security
of tenure of judges and to ensure that evaluations of the performances
of judges and prosecutors, as well as disciplinary procedures against
them, are free from undue influence;
33.2. further revise the law on the High Council of Judges and
Prosecutors to reduce the influence of the executive within the
council.
34. The Assembly also notes that in 2014 the fight against terrorism
was extended to the Gülen Movement (the so-called “parallel State
structure”), a former ally of the AKP. The purge to clear the State
institutions of alleged Gülenist followers raises questions in respect
of procedural guarantees. This move particularly affected the judicial
system, where the large number of transfers, arrests and detentions
of judges and prosecutors could have a deterrent effect on the members
of the judiciary.
35. Finally, while the Assembly welcomes the establishment of
regional courts, it notes that the draft law on the restructuring
of the Court of Cassation and Council of State raises questions.
It therefore asks the Venice Commission for an opinion on this draft
law and the constitutional aspects of the appointments of members
of high judicial bodies. The Assembly moreover invites the relevant
authorities to seek the opinion of the Turkish Constitutional Court
and also to ensure that the adopted law takes into account the recommendations
of the Venice Commission.
36. The Assembly concludes that the latest developments pertaining
to freedom of the media and of expression, erosion of the rule of
law and the human rights violations in relation to the anti-terrorism
security operations in south-east Turkey constitute a threat to
the functioning of democratic institutions of the country and its
commitments to its obligations towards the Council of Europe. The
Assembly will continue to follow closely the issues raised in this
resolution in particular the situation in south-east Turkey with
respect to human rights, on the basis of information provided by
its Monitoring Committee. The Assembly recalls that the Turkish authorities
are invited to fulfil the remaining requirements pertaining to the
post-monitoring dialogue with the Parliamentary Assembly. It reiterates
the readiness of the Council of Europe, in particular the Venice Commission,
to support the Turkish authorities’ efforts in this respect. The
Assembly notes that progress made on all 12 items of the post-monitoring
dialogue, including on the items discussed in the present resolution,
will be assessed in the post-monitoring report to be presented in
2017.