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Resolution 2156 (2017)
The functioning of democratic institutions in Turkey
1. On 15 July 2016, Turkey suffered
a failed coup d’état initiated
by a group within the Turkish armed forces, which resulted in 248
people being killed and 2 000 wounded. The Parliamentary Assembly
has firmly condemned this attempt to overthrow the country’s democratically
elected institutions, in particular the Turkish Grand National Assembly,
which was bombarded that night, and fully acknowledges that these
events were traumatic for Turkish society. It expressed its support
and praised the Turkish people for uniting to reject this attempted
military coup, thus demonstrating their democratic maturity. The
Turkish authorities declared that members of the Gülen movement
were behind the attempted coup. This prompted the authorities to
launch a vast purge in the State institutions. There seems to be
a widely accepted view in Turkish society that the above-mentioned
institutions had been infiltrated by the movement.
2. That night, Turkey faced a dangerous armed conspiracy, which
gave the president a legitimate reason to declare a state of emergency
and give extraordinary powers to the government. In line with Article
15 of the European Convention on Human Rights (ETS No. 5), Turkey
derogated from certain human rights standards. The three-month state
of emergency has been prolonged three times since then, in October
2016, January 2017 and April 2017, with the parliament’s agreement.
3. While keeping in mind that a state of emergency aims at re-establishing
public order, the Assembly stresses that this situation should remain
within the limits set by the constitution and the domestic and international
obligations of the State. The state of emergency should thus be
strictly limited in time and effect, and be lifted as soon as possible.
4. The Assembly is fully aware that Turkey is facing multiple
threats and challenges due to its adverse geopolitical situation:
the ongoing conflict in Syria has forced 3 million refugees to Turkey,
whose efforts to accommodate and take care of these refugees should
again be commended.
5. 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, Diyarbakır, Kayseri and other cities
in Turkey. In addition, the border city of Kilis was 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 by no means
be tolerated.
6. The Assembly stresses Turkey’s right and duty to fight terrorism
and address security issues in order to protect its citizens and
its democratic institutions. It recalls, however, that the fight
against terrorism nationwide, as well as the security operations
conducted in south-east Turkey, must adhere to the principles of
rule of law and human rights standards, which require any interference
with basic human rights to be defined in law, necessary in a democratic
society and strictly proportionate to the aim pursued, in accordance
with international obligations, which includes the revision of legislation
and practices on terrorism in line with European standards.
7. Unfortunately, eight months after the attempted coup, the
situation has deteriorated and measures have gone far beyond what
is necessary and proportionate. The authorities have been ruling
through decree laws going far beyond what emergency situations require
and overstepping the parliament’s legislative competence. The Assembly
is also concerned that most of the decree laws have so far not been
approved (as required by the constitution), or their implementation
monitored by the parliament, which it considers to be a serious democratic
deficiency.
8. In this context, the Assembly underlines that the reintroduction
of the death penalty would be incompatible with membership of the
Council of Europe and urges the Turkish Grand National Assembly
to refrain from any move that could lead to the reintroduction of
capital punishment and thus jeopardise Turkey’s membership of the
Council of Europe.
9. The Assembly recalls its Resolution 2121 (2016) on the functioning
of democratic institutions in Turkey, adopted in June 2016, prior
to the failed coup, according to which the developments pertaining
to freedom of the media and of expression, erosion of the rule of
law and the alleged human rights violations in relation to the anti-terrorism
security operations in south-east Turkey constituted a threat to
the functioning of democratic institutions and the country’s commitment
to its obligations to the Council of Europe. The Assembly regrets
that none of the issues identified have been addressed. The Assembly
has, on the contrary, noted that the harmful developments observed
in June 2016 have accelerated and worsened since the failed coup,
as graphically evidenced by the February 2017 report of the Office
of the United Nations High Commissioner for Human Rights and three
successive reports by the Council of Europe Commissioner for Human
Rights in October and December 2016 and February 2017.
10. The Assembly is in particular concerned about the stripping
of the immunity of 154 members of parliament (MPs) in May 2016,
which the European Commission for Democracy through Law (Venice Commission)
described in October 2016 as an ad hoc, “one-shot” and ad hominem measure, as well as a misuse
of the constitutional amendment procedure, thus not in line with
Council of Europe standards. It further condemns the ongoing detention
of 12 parliamentarians since November 2016, and is dismayed by the requests
from the Public Prosecutor’s Office for respectively 142 years and
83 years of imprisonment for the People’s Democratic Party (HDP)
co-chairs, Selahattin Demirtaş and Figen Yüksekdağ.
11. The Assembly concludes, with great concern, that such lifting
of immunity has seriously undermined the democratic functioning
and position of the parliament. In addition, this decision has disproportionally
affected the opposition parties and in particular the HDP, with
55 out of 59 (or 93%) of its members stripped of their immunity.
This has had a deterrent effect and led to serious restrictions
to democratic debate in the run-up to the constitutional referendum
of 16 April 2017 to establish a presidential system. It also paved
the way for the arrest and the current detention of 12 HDPMPs, including
the two co-chairs of the party, and also the arrest of hundreds
of HDP officials, which has rendered the party inoperative. The
Assembly deeply regrets that its delegations were repeatedly denied
access to these detained parliamentarians.
12. At the same time, the Assembly is concerned about the situation
of local administrations in south-east Turkey. It notes with concern
that trustees appointed by the government have taken over the administration
of two thirds of the municipalities which were governed by pro-Kurdish
political parties. Dozens of their mayors are currently in prison.
The Assembly deplores that these detentions have suspended the practical
exercise of local democracy in that region, led to disproportionate
supervision of local administrations through the appointment of
trustees and reduced local public services, in contravention of
the European Charter of Local Self-Government (ETS No. 122). The
Assembly urges the Turkish authorities to release, where appropriate, the
mayors currently in pretrial detention and fully restore local democracy
in south-east Turkey, in line with Resolution 416 (2017) and Recommendation
397 (2017) of the Congress of Local and Regional Authorities of the
Council of Europe.
13. The Assembly considers that these developments amount to a
serious deterioration of the functioning of democratic institutions
in the country, particularly by weakening the role of the elected
representatives and undermining the legislative and supervisory
functions of the parliament. Recalling its Resolution 2127 (2016) “Parliamentary
immunity: challenges to the scope of the privileges and immunities
enjoyed by members of the Parliamentary Assembly” and the 2016 Venice
Commission opinion on the suspension of the second paragraph of
Article 83 of the constitution (Parliamentary inviolability), the
Assembly therefore calls on the Turkish authorities to:
13.1. authorise Parliamentary Assembly
and international parliamentary delegations to visit the detained
parliamentarians;
13.2. restore the inviolability of the immunity of the MPs who
have been stripped of their immunity, based on the conclusions of
the Venice Commission;
13.3. release the detained parliamentarians, unless they are
convicted after a fair trial with due process guarantees.
14. The Assembly expresses its deep concern about the scale and
extent of the purges conducted in the public administration and
the judiciary, and many other public institutions, targeting alleged
members of the Gülen movement. The Assembly recalls its Resolution 2121 (2016) and
notes that the Gülen movement, a former ally of the ruling party
operating legally until 2014, was later labelled as the “Fethullahist
Terrorist Organisation”/“Parallel State Structure” and considered
a terrorist organisation. According to the Venice Commission, while
civil servants have an obligation to be loyal to the State and not
to take instructions from external sources, it is the duty of the
State to clarify to all public servants when a hitherto well-established organisation
is subsequently considered a “threat to the national security” –
and becomes thus incompatible with public service – to avoid lack
of information and clarity which could lead to “unjust dismissals
which may be seen as retroactive punishment”.
15. These measures have had a serious impact on the functioning
of the State institutions: a quarter of judges and prosecutors,
a tenth of the police force and 30% of the staff in the Ministry
of Foreign Affairs have been dismissed, not to mention the nearly
5 000 academics dismissed since July 2016, which is impeding the running
of universities.
16. The Assembly is extremely worried about the high number of
individuals arrested and kept in custody waiting indictment, without
access to their files. The Assembly expects the Turkish authorities
to resort to pretrial detention only as a last resort and on valid
grounds.
17. The Assembly is also dismayed by the social consequences of
the measures applied in the framework of the state of emergency.
The civil servants who were dismissed have had their passports cancelled.
They are banned from ever working again in the public administration,
or in institutions which have links to the administration. They
have no access to a social security scheme and their assets have
been seized – which raises the question of the protection of property
rights. Their families have also been affected by these measures.
The Assembly fears that these measures amount to a “civil death”,
for those concerned. This situation will have a dramatic and detrimental
long-term effect on Turkish society, which will need to find the means
and mechanisms to overcome this trauma.
18. The Assembly welcomes the decision taken on 23 January 2017
to establish a national administrative commission (Inquiry Commission
on State of Emergency Measures) to ensure an effective national
judicial remedy for individuals or legal entities (associations,
foundations, private institutions, media, etc.) to challenge measures
taken under the decree laws. The Assembly is concerned that the
members of this commission have not yet been appointed and the commission
is not operating. The Assembly deems it important that the decisions
of this commission are subject to judicial review by the competent
administrative courts, whose decisions may be further challenged
before the Constitutional Court and, as a last resort, before the
European Court of Human Rights, which will then decide whether a
remedy is effective or not. The Assembly will closely follow the
work of this commission and the effective access, within a reasonable
time, to legal remedies of those affected by the decree laws.
19. The Assembly also notes that the Constitutional Court has
not yet reached a decision on whether or not it should examine the
50 000 individual applications pending in relation to the publication
of the emergency decree laws. The Assembly underlines in this respect
that the right to individual petition introduced in 2010 has proved
to be an effective means for the Constitutional Court to redress
human rights violations in recent years. It therefore invites the
Constitutional Court to confirm this practice.
20. The Assembly remains worried about respect for fundamental
rights under the state of emergency. Considering the scale of the
operations undertaken, the Assembly is concerned that the state
of emergency has been used not only to remove those involved in
the coup from the State institutions, but also to silence any critical
voices and create a climate of fear among ordinary citizens, academics,
independent non-governmental organisations (NGOs) and the media,
jeopardising the foundations of a democratic society.
21. In this respect, the Assembly welcomes the willingness expressed
by the Turkish authorities to continue the dialogue with the Council
of Europe, and values the efforts of the joint working group established
by the Turkish Minister of Justice and the Secretary General of
the Council of Europe. The adoption of three decree laws on 23 January
2017, restoring access to lawyers from the first day of custody
and limiting police custody to seven days (renewable once at the
request of the Public Prosecutor in certain cases), is a positive
result of this co-operation. The Assembly now expects these first
steps to be followed by others in order to address the remaining
procedural shortcomings resulting from the decree laws and upgrade
the human rights situation and domestic redress mechanisms. The
failure to do so will certainly result in the European Court of
Human Rights facing tens of thousands of applications from Turkish
citizens in the coming years.
22. In the light of the serious concerns and established violations
of human rights under the state of emergency, as highlighted by
the Venice Commission and the Council of Europe Commissioner for
Human Rights, the Assembly also urges the Turkish authorities to:
22.1. lift the state of emergency
as soon as possible;
22.2. put an end to the collective dismissal of civil servants
through decree laws, which negate procedures based on individual
cases that are respectful of the presumption of innocence;
22.3. take all necessary steps to ensure that the newly created
Inquiry Commission on State of Emergency Measures starts its work
rapidly and with adequate human and financial resources; ensure that
its decisions are taken quickly, independently and transparently
in order to start a judicial review procedure, so as to ensure that
any wrongdoing is properly redressed with due diligence;
22.4. redress the procedural shortcomings under the state of
emergency, in particular with respect to the duration of detention
and effective access to lawyers;
22.5. abolish the provision providing for the stripping of citizenship
in cases of trials in absentia,
which is contrary to international legal instruments and may result
in statelessness;
22.6. amend the decree laws to ensure that all transfers of
property to the State are temporary, subject to final adjudication
at the end of the state of emergency, and in full compliance with
Article 6.1 of the European Convention on Human Rights;
22.7. ensure that the right to education, as set out in Article
2 of the Protocol to the European Convention on Human Rights (ETS
No. 9), is fully protected.
23. The Assembly reiterates its deep concern about the situation
in south-east Turkey, which has been subjected to security operations
since August 2015. It shares the concerns expressed by the Council
of Europe Commissioner for Human rights and the United Nations High
Commissioner for Human Rights about violations of fundamental rights
in the region, including property rights, access to education and
lack of effective investigations into alleged human rights violations.
The Assembly is also shocked by the investigations launched against
human rights organisations which reported on alleged human rights
violations – deemed credible – in Cizre.
24. In this context, the Assembly is appalled to learn about the
adoption of the 2016 Law on the Legal Protection of Security Forces
Involved in the Fight against Terrorist Organisations, which could
encourage impunity. It nevertheless notes that the authorities seek
to pursue a zero-tolerance policy with respect to torture and ill-treatment.
It thus urges the Turkish authorities to:
24.1. repeal the 2016 Law on the Legal Protection of Security
Forces Involved in the Fight against Terrorist Organisations; ensure
that effective investigations into allegations of unlawful acts
are carried out in order to guarantee that those responsible are
held accountable, including for ill-treatment, excessive use of
force or any other abuse of power;
24.2. establish an effective and independent complaints mechanism
to combat impunity, as suggested by the Council of Europe Commissioner
for Human Rights;
24.3. authorise, without undue delay, the publication of the
most recent reports prepared by the Committee for the Prevention
of Torture and Inhuman or Degrading Treatment or Punishment (CPT)
and implement the CPT’s recommendations.
25. With respect to freedom of the media and of expression, the
Assembly is alarmed by the repeated violations of the former, the
large number of journalists currently detained and the pressure
exerted on critical journalists: these are unacceptable in a democratic
society. Council of Europe member States have a positive obligation
to ensure freedom of expression, the protection of journalists and
access to information, and to create conditions enabling the media
to act as public or social watchdogs and inform the public on matters
of general and public interest.
26. The Assembly recalls in particular its Resolution 2121 (2016) on the functioning
of democratic institutions in Turkey, and Resolution 2141 (2017) on attacks
against journalists and media freedom in Europe. It remains concerned
about the situation of the media in Turkey and the extensive interpretation
of the Anti-Terror Law, which contradicts Council of Europe standards,
seriously undermines the democratic foundations of the country and
leads to the criminalisation and prosecution of human rights defenders
and lawyers. It reiterates its call on the Turkish authorities to
repeal, revise or ensure a strict interpretation of Article 216
(criminalising public incitement to hatred or hostility and degrading
sections of the public), Article 299 (insulting the President of
the Republic of Turkey), Article 301 (degrading the Turkish nation,
the State of the Turkish Republic, the organs and institutions of
the State) and Article 314 (membership of an armed organisation)
of the Penal Code, as well as Law No. 5651 on the Internet, in accordance
with the opinions of the Venice Commission of 2015.
27. The Assembly thus calls on the Turkish authorities to:
27.1. release all detained journalists
(more than 150) and human rights defenders;
27.2. put an end to the unacceptable policy of the criminalisation
of dissenting voices, and protect media freedom, in line with the
European Convention on Human Rights and the case law of the European
Court of Human Rights; review the attitudes and practices of members
of the justice system, in particular prosecutors and peace judges,
so as to discard the “consistent pattern of judicial harassment
with a clear chilling effect that stifles criticism” (as described
by the Commissioner for Human Rights) and to achieve a more Convention-compliant
interpretation of Turkish legislation;
27.3. amend the anti-terror law so as to ensure that its implementation
and interpretation comply with the European Convention on Human
Rights;
27.4. refrain from applying sweeping measures, including against
the media, academics and NGOs, on the basis of vague criteria of
alleged “connection” to a terrorist organisation without evidentiary grounds
and in the absence of judicial decisions;
27.5. ensure that the Inquiry Commission on State of Emergency
Measures will be fully operational without further delay and with
the power to restore the status quo ante and/or,
where appropriate, provide adequate compensation; grant priority
treatment to the most urgent applications, including those introduced
by the media outlets; and issue reasoned, individualised decisions
in line with the recent opinions of the Venice Commission;
27.6. create an environment conducive to media freedom and pluralism,
notably by strengthening the editorial independence of the Turkish
Radio and Television Broadcasting Company, and implementing an effective
monitoring mechanism to ensure that the media abides with regulations,
in line with Council of Europe standards.
28. In the light of the backsliding with respect to freedom of
expression and of the media observed in recent years – and which
has worsened under the state of emergency – the Assembly considers
that Turkey is failing to comply with this obligation and urges
the authorities to take urgent measures to restore freedom of expression
and of the media, based on the February 2017 conclusions of the
Commissioner for Human Rights and on the relevant opinions issued
by the Venice Commission in 2016 and 2017.
29. The Assembly takes note of the adoption of a package of 18
constitutional amendments by the parliament on 21 January 2017 and
by 51.4% of the voters during the constitutional referendum on 16
April 2017, which will result in a profound change and a shift from
a parliamentary to a presidential system, granting the president
extensive powers while drastically reducing the supervisory role
of the parliament. The Assembly emphasises that it is the sole right
of the Turkish citizens to decide on the democratic political system
they wish to have, provided that sufficient information is given
to the voters and that enough time is allowed for public debate.
30. In this context, the Assembly notes with concern that the
constitutional amendments were adopted in parliament after a rapid
procedure (six weeks in all), marked by tense debates, infringement
of the secrecy of votes, absence of continuous broadcasting of all
the parliamentary debates on television and no public consultation
on the proposed changes. It is also concerned about the planned
system of checks and balances, the separation of powers and the
independence of the judiciary. The advisability of holding a referendum
under a state of emergency, with 500 000 persons displaced in the
wake of the curfews and security operations in south-east Turkey
since August 2015, also raises serious questions.
31. The Assembly is also worried about recent changes in the election
legislation made through decree laws that strip the Supreme Board
of Elections (SBE) of its ability to sanction any media which makes
biased political propaganda, and allow unlimited political advertising
on private radio and television channels. This is a step backwards
and will not be conducive to fair access to the media and balanced
media coverage during elections or referendums. The Assembly underlines
that citizens have the right to be duly informed about the issues
at stake and to be provided with comprehensive information on all
views, including dissenting voices, in a timely manner. It thus
urges the Turkish authorities to amend its electoral legislation
accordingly and address the remaining electoral shortcomings identified
by the Assembly in previous election observation reports.
32. In the light of the preliminary findings of the Parliamentary
Assembly and the international referendum observation mission of
the Office for Democratic Institutions and Human Rights of the Organization
for Security and Co-operation in Europe (OSCE/ODIHR), the Assembly
deeply regrets that the referendum was held on an uneven playing
field, thus preventing the two sides in the campaign from having
equal opportunities. Furthermore, the decision of the SBE in the
course of the voting day – allowing the validation of unsealed ballot papers
in contradiction with the 2010 election law – has raised serious
questions about the legitimacy of the outcome of the referendum.
The Assembly also expects the SBE to thoroughly investigate all
alleged election irregularities.
33. The Assembly appeals to the Turkish authorities to take all
due measures to ensure that the right to vote freely and in full
security is upheld for all Turkish citizens. It reiterates its call
to allow civil society organisations to be accredited as domestic
election observers; this would contribute to the transparency of
the election process.
34. The Assembly welcomes the fact that, in coherence with democratic
principles, the military courts, which are constantly criticised
for judicial independence, have been abolished by the constitutional
amendments and that members with military backgrounds in the Constitutional
Court have been removed.
35. In the light of the March 2017 recommendations of the Venice
Commission on the constitutional amendments, the Assembly resolves
to follow the institutional developments and to work with the Turkish authorities,
possibly through the preparation of constitutional amendments, to
ensure that the constitutional framework and its implementation
comply with Council of Europe standards.
36. The Assembly has on numerous occasions underlined that Turkey
is a strategic partner for the Council of Europe, and has repeatedly
called for a constructive dialogue with Turkey, one of its oldest
members and one of the first signatories of the European Convention
on Human Rights, in 1950. It thus welcomes the ongoing constructive
dialogue with the Organisation, which should continue to be based
on mutual trust and lead to further results.
37. The Assembly is determined to continue dialogue and co-operation
with Turkey, and to offer its support in the difficult times faced
by the country. In the wake of the failed coup, which revealed serious
dysfunctions within Turkey’s democratic institutions, the Assembly
believes that the post-coup developments, including the implementation
of the state of emergency, have had large-scale, disproportionate
and long-lasting effects on the protection of fundamental freedoms,
the functioning of democratic institutions and on all sectors of
society. It notes that the disproportionate measures taken (150 000
civil servants, military officers, judges, teachers and academics
dismissed; 100 000 individuals prosecuted and 40 000 of them detained),
the prevailing legal uncertainty despite recent steps taken by the
authorities, and the consequences of the emergency decree laws on
individuals and their families have created a climate of suspicion
and fear which is detrimental to social cohesion and stability.
38. The Assembly wishes to strengthen and intensify its monitoring
of the developments in Turkey and its dialogue with all the forces
in the country on these developments in order to ensure that the
serious concerns it has expressed about the respect for human rights,
democracy and the rule of law are addressed. The Assembly therefore
decides to reopen the monitoring procedure in respect of Turkey
until its concerns are addressed in a satisfactory manner. In particular,
it expects Turkey, as a matter of priority, to:
38.1. lift the state of emergency
as soon as possible;
38.2. in the meantime, halt the publication of emergency decree
laws which bypass parliamentary procedures, unless strictly needed
under the state of emergency, and put an end to the collective dismissal
of civil servants through emergency decree laws;
38.3. release all the detained parliamentarians and co-mayors
pending trial;
38.4. release all the imprisoned journalists pending trial;
38.5. establish, and launch the work of, the Inquiry Commission
on State of Emergency Measures to ensure an effective national judicial
remedy for those dismissed through emergency decree laws;
38.6. ensure fair trials with respect for due procedural guarantees;
38.7. take urgent measures to restore freedom of expression
and of the media, in line with Assembly Resolution 2121 (2016) and Resolution 2141 (2017),
and with the recommendations of the Commissioner for Human Rights
and the Venice Commission;
38.8. implement as soon as possible the recommendations of the
Venice Commission concerning the constitutional amendments.
39. The Assembly resolves, in the framework of the monitoring
procedure for Turkey, to assess progress made in a report to be
presented in the course of the Assembly’s 2018 session.
40. In the aftermath of the failed coup attempt, the Assembly
welcomes the fact that high-level political contacts and technical
co-operation between Turkey and the Council of Europe have intensified.