With regard to completing revision of the Criminal Code (in
particular, respect for the need for proportionality arising from
the case law of the European Court of Human Rights on freedom of
expression and association), examination of the legislation dating
from the period of the state of emergency and the training of judges
and prosecutors as well as the police and gendarmerie:
11.1 the Assembly underlines that
Turkey has implemented judicial reforms to bring its legislation
into line with the European Convention on Human Rights, in particular
with the adoption of the “3rd package of judicial reforms” in July
2012 and the “4th package” in April 2003. In particular, the aim
of these reforms was to strengthen the presumption of innocence
and restrict pre-trial detention. It has to be said that, in spite
of some releases on bail or under court supervision, the short-term
results have not matched expectations. Persons being held in pre-trial
detention, including elected members of parliament, still account
for 23% of prisoners;
11.2 the Assembly welcomes the ratification, in September 2011,
of the United Nations Optional Protocol to the Convention against
Torture and other Cruel, Inhuman or Degrading Treatment or Punishment
(OPCAT) and invites Turkey to introduce a national torture prevention
mechanism;
11.3 while the Assembly notes the reforms undertaken in the
area of juvenile justice, it is nevertheless awaiting the conclusions
of the European Committee for the Prevention of Torture and Inhuman
or Degrading Treatment or Punishment (CPT) concerning the treatment
and conditions of detention of juveniles. The Assembly also urges
the authorities to improve conditions in all Turkish prisons, in
line with Council of Europe standards and practice;
11.4 in terms of freedom of expression, which is a very crucial
issue, while underlining the reforms carried out under the “3rd package”
to relax restrictions, the Assembly refers to
Resolution 1920 (2013) on the state
of media freedom in Europe. It reiterates its explicit request that
Turkey conduct an in-depth review of the legal provisions and administrative
measures relating in particular to the provisions of the Criminal
Code and anti-terrorism legislation. Legislation concerning the
Internet also needs to be clarified, in order to verify its compatibility
with the case law of the European Court of Human Rights;
11.5 the Assembly welcomes the adoption on 11 April 2013 of
the “4th package of judicial reforms”. The amendments of, in particular,
the Criminal Code and the anti-terrorism legislation should help
to bring Turkish legislation into line with the case law of the
European Court of Human Rights, as requested. They should also help
to clarify the distinction between freedom of expression and terrorist propaganda,
as expected. The Assembly renews its request for Article 301 of
the Criminal Code to be repealed, as well as Article 125 of the
Criminal Code which criminalises defamation. The Assembly also calls
for a review of the definitions of offences related to terrorism
and membership of a criminal organisation in line with the case
law of the European Court of Human Rights;
11.6 the Assembly notes that the adoption of the “4th package
of judicial reforms” should make possible the abolition of the statute
of limitation for torture cases and the reopening of the trials
in the cases in which the European Court of Human Rights has found
a lack of effective investigations, in violation of the European
Convention on Human Rights;
11.7 the Assembly also invites Turkey to continue the reforms
undertaken in order to protect all fundamental and individual freedoms
so that protecting the individual is made the focus of its human rights
system;
11.8 the Assembly notes that the educational reform (the “4
+ 4 + 4 system”) increases the duration of compulsory schooling,
which is a positive move. There is, however, some concern about
the introduction of religious education from lower secondary level,
as sections of “Imam Hatip schools” have been re-established there.
This measure seems to be a departure from the principle of secularism
based on respect for all religions, a principle endorsed by the
prime minister. The Assembly will follow the implementation of the
new system;
11.9 with regard to respect for the rights of lesbian, gay,
bisexual and transsexual (LGBT) persons, the Assembly asks Turkey
to take every step, educational measures included, to combat all
forms of discrimination and adopt appropriate legal and constitutional
provisions. The Assembly hopes that these reforms concerning sexual
orientation and gender identity will be fully implemented, in accordance
with Committee of Ministers Recommendation CM/Rec(2010)5 on measures
to combat discrimination on grounds of sexual orientation or gender
identity;
11.10 the Assembly cannot but note that several human rights
and fundamental freedoms issues remain problematic:
11.10.1 the
Assembly deplores the fact that there has still been no legal outcome
to the pre-trial detention of large numbers of members of parliament,
mayors and local elected representatives. This situation clearly
hampers the exercise of the mandates given to these elected representatives
by citizens and requires an urgent legislative solution;
11.10.2 the Assembly calls on Turkey to respect fully the rights
of the defence in the major trials (Ergenekon, Balyoz, KCK) which
are being conducted by courts with special powers. These trials are
simultaneously affecting elected representatives, members of the
armed forces, university teachers, students, journalists and Kurds.
The Assembly is concerned by the high number of these trials;
11.10.3 in addition, the Assembly notes that arrests and pre-trial
detention, notably of journalists, young people and students, raise
serious concerns. It urges Turkey to adopt, without further delay,
the necessary legislation to guarantee freedom of expression and
the right to demonstrate, and to ensure that police action, if it
is necessary, remains proportionate;
11.11 with regard to the dissolution of political parties, the
Assembly invites Turkey, in line with the Venice Commission’s 2009
recommendations, to renew efforts, in the context of the work on constitutional
reform, to introduce a properly elaborated procedure based on strict
criteria, such as condoning or inciting violence or overt threats
to fundamental democratic values;
11.12 in terms of trade union rights, the Assembly takes note
of the law adopted on 19 October 2012. It notes the low number of
unionised employees (less than 10%), namely 1 million out of 10 million.
It draws attention to the high threshold of over 3% unionised employees
in firms with over 30 employees for trade unions to be entitled
to enter into collective bargaining. At present, this would mean
that barely half of trade unions would be able to do so. The measure
appears to be gradual, however, and is not due to be applied in
full until 2018. The Assembly therefore asks Turkey to make sure
that the new trade union legislation genuinely guarantees the exercise
of the right to bargain collectively. It encourages Turkey to continue
its discussions with the socio-economic partners and trade unions
in order to lift the reservations entered into in respect of Articles 2.3,
4.1, 5 and 6 of the revised European Social Charter;
11.13 the Assembly underlines the obvious need to train judges
and prosecutors. It encourages the authorities to continue and step
up the programmes of compulsory in-service training for law-enforcement
officers. This is vital for ensuring that the new legislative measures
are implemented effectively and account is taken of the case law
of the European Court of Human Rights. The training of justice and
law-enforcement personnel must be accompanied by an absolutely necessary
change in attitudes. The Assembly strongly urges Turkey to continue
the co-operation established with the Council of Europe in these
areas.
