B Explanatory memorandum
by Mr Thomas Hammarberg and Mr John Howell, co-rapporteurs
1 Introduction
1. The present report derives
from a request for an urgent debate entitled “New
crackdown on political and social opposition in Turkey: how to safeguard
human rights, fundamental freedoms and the protection of Turkish
citizens by the European Court of Human Rights?” tabled on behalf
of the Group of the Unified European Left (UEL), by Mr Tiny Kox
(UEL, the Netherlands). Following the decision of the Standing Committee
of 12 October 2020 to hold an urgent debate on this topic and its
referral for a report to the Committee on Honouring of Obligations
and Commitments by Council of Europe member States (Monitoring Committee),
as co-rapporteurs on Turkey and in accordance with the established
practice we were confirmed as rapporteurs for this report under
urgent procedure by the Committee at its meeting of 16 October 2020.
The Monitoring Committee also approved, at this meeting, the new
title we had proposed for this report.
2. We were appointed co-rapporteurs for the monitoring of Turkey
respectively in June 2019 and January 2020. Owing to the Covid-19
pandemic, we have not yet had the opportunity to pay a fact-finding
visit to the country. This report will therefore rely on existing
authoritative sources of information, opinions and reports of the
European Commission for Democracy through Law (Venice Commission)
and reports from international NGOs and national civil society organisations
as well as exchanges of views organised in the Monitoring Committee.
Our texts of reference include notably
Resolution 2121 (2016) and
Resolution
2156 (2017) of the Parliamentary Assembly on the “Functioning of
democratic institutions in Turkey” and
Resolution 2260 (2019) adopted under urgent procedure, on “The worsening situation
of opposition politicians in Turkey: what can be done to protect
their fundamental rights in a Council of Europe member State?”.
3. This report under urgent procedure does not allow for a comprehensive
analysis of all relevant issues related to human rights, democracy
and rule of law, which ought to be addressed in a full monitoring
report. We expect to prepare the latter as soon as possible. We
believe that the recent crackdown on political opposition and civil
dissent needs to be considered in the overall context and take into
account recent developments that have affected the functioning of
democratic institutions, rule of law and the protection of human
rights in Turkey.
4. During the past months, there were also developments at an
international level involving Turkey. External actions undertaken
by the country, including military operations, in northern Syria,
the East Mediterranean, Libya or Turkey’s reported involvement the
conflict between Armenia and Azerbaijan have raised serious concerns,
including about the compliance of Turkey’s external actions with
Council of Europe obligations. This was also raised by the European
Court of Human rights when it called, in the interim measures of
6 October 2020, on “all States directly or indirectly involved in
the conflict [between Armenia and Azerbaijan], including Turkey,
to refrain from actions that contribute to breaches of the Convention
rights of civilians, and to respect their obligations under the
Convention.”
Note The monitoring report
cannot overlook this dimension, which will be an important component
of our future work. However, in the present report, we have decided
to concentrate on pressing domestic developments, in line with the
spirit of the Standing Committee`s reference. At the same time,
we believe that the compliance of Turkey’s external actions with
Council of Europe standards should be incorporated in our next reports
as part of the monitoring procedure.
2 Crackdown on opposition politicians
and elected representatives, at national and local level, and the functioning
of democratic institutions
5. In its
Resolution 2260 (2019), the Assembly recalled that political opposition in and
outside parliament is an essential component of a well-functioning
democracy and expressed its concerns about the deterioration of
the situation of the rule of law, democracy and human rights in
Turkey, including the stripping of immunity of 154 parliamentarians
in 2016, restricted freedom of expression and media, reduced checks
and balances in the new presidential system or unfair election processes
– which have increasingly diminished, obstructed or undermined the
ability of opposition politicians to exercise their rights and fulfil
their democratic roles, and resulted in (former) opposition deputies
being prosecuted, detained or convicted. Highlighting the clear existence
of strong prerequisites for democracy in Turkish society, including
the citizens’ aspirations for genuine choices between candidates,
parties and political programmes, the Assembly called on the Turkish authorities
to fully respect the rights and fundamental freedoms of opposition
politicians. In particular, the Assembly called on Turkey to guarantee
parliamentary immunity, amend the legislation and constitution in
line with the Venice Commission’s recommendations, lower the 10%
electoral threshold, upgrade freedom of expression and media, implement
the judgments of the European Court of Human Rights, and further
co-operate on these issues with the Council of Europe and the Parliamentary
Assembly in the framework of its ongoing monitoring procedure.
6. In 2019, there were some positive developments with respect
to (former) deputies in detention, notably the release of MP Leyla
Güven on 28 January 2019
Note, the ruling of
the Constitutional Court of 3 October 2019 finding a violation of
the freedom of expression of convicted former MP Sırrı Süreyya Önder
Note of
the Peoples’ Democratic Party (HDP), and the release, on 31 October
2019, of former MP Eren Erdem of the Republican People’s Party (CHP)
after the enactment of the first package of the Judicial Reform
(see below).
7. Unfortunately, new crackdowns on opposition members have taken
place since then. We would like to mention a few recent examples:
- On 18 December 2019, the dismissal
of Burak Oğuz from the CHP party, Mayor of the Urla district in Izmir
District, for his alleged links to the Gülen MovementNote,
and his replacement by a trustee, was a worrying development. The
President of the Congress of Local and Regional Authorities of the
Council of Europe (the Congress) stated on that occasion that “the
excessive recourse to judicial proceedings against local elected
officials in Turkey and their replacement by appointed officials
is seriously undermining the democratic choice of Turkish citizens
and the proper functioning of local democracy in Turkey”.Note
- On 4 June 2020, HDP deputies Leyla Güven and Musa Farisoğulları
and CHP deputy Enis Berberoğlu were stripped of their parliamentary
status. While the arrest of Ms Güven and Mr Berberoğlu afterwards was
brief, Mr Farisoğulları remains behind bars together with former
co-chairs of HDP and four other HDP deputies.
- On 23 June 2020, the appeal court upheld the conviction
of Canan Kaftancioğlu, Chairperson of the Istanbul branch of the
CHP, to nine years in prison owing to a tweet published six years
ago. Her conviction had occurred in the wake of local elections
won by the opposition and was seen as a retaliation for Ms Kaftancioğlu’s
successful management of Ekrem Imamoğlu’s election campaign in Istanbul.
- On 17 September 2020, the Constitutional Court ruled that
the right of (former) CHP Member of Parliament, Enis Berberoğlu,
to stand for election and engage in political activities as well
as his right to freedom and security had been violated. Mr Berberoǧlu
– a former journalist – was sentenced to five years in prison in
2017 for disclosing information about the possible involvement of
Turkey in the Syrian conflict.Note On
15 October 2020, a lower court, however, refused to abide by the
ruling of the Constitutional Court and to give Mr Berberoǧlu a re-trial,
thus preventing him from returning to parliament.
- On 25 September and 1st October
2020, arrest warrants were issued against 101 members and elected representatives
of the HDP, including former deputy Sırrı Süreyya Önder (who was
later released) and former member of the Assembly Nazmi Gür, for
their alleged involvement in the October 2014 Kobane protests violence.Note 17
HDP politicians were arrested including the co-Mayors of Kars (and
replaced by trustees) in what the President of the Congress described
as a “new blow to local self-government”.Note
- On 8 October 2020, Murat İde, press adviser to opposition
party Good Party (İYİ) leader Meral Akşener, was detained one day
for a column he wrote in 2015. These incidents take place in an
environment which is seriously restricting political activities
of opposition parties.
8. In January 2019, the Assembly had already expressed its concerns
about the restriction of the rights of opposition politicians at
local level, in particular those connected to the Kurdish question,
notably the replacement of over 90 elected mayors from the HDP or
its sister party by government-appointed trustees. This took place
during the state of emergency and is in contravention of the European
Charter of Local Self-Government (ETS No. 122). This practice had
also been criticised by the Venice Commission.
Note
9. This trend intensified after the local elections of 31 March
2019. The Justice and Development Party (AK Party) and its allies
of the Nationalist Party MHP won 51% of the votes but lost the majority
in the cities of Ankara and Istanbul. The election of the Mayor
of Istanbul on 31 March 2019 was marked by the highly criticised
annulment of the result by the Supreme Election Council (SEC) and,
eventually, the re-run on 23 June (which led to the election of
the CHP candidate Ekrem Imamoglu, with the support of the HDP).
In its election observation report, the Congress concluded that
the two polls had been conducted in order and were administered
satisfactorily, with a remarkably high turnout. However, urgent
steps were needed to reform the SEC (whose decisions cannot be appealed),
to clarify the electoral legislation and to harmonise all election laws
in order to give them a coherent framework. The Congress also recommended
the removal of overly restrictive limitations of freedom of association,
assembly and expression in order to re-establish an environment
fully conducive to genuinely democratic elections.
Note
10. The dismissal and replacement of elected Mayors (the vast
majority of them belonging to the HDP) resumed after the March 2019
local elections. The Venice Commission issued an opinion on the
replacement of elected candidates and mayors in June 2020
Note, calling on the Turkish government
to repeal decisions that have undermined democratic self-government
in southeast Turkey.
11. According to the latest figures provided by the HDP, 48 mayors
from this party elected in March 2019 (including the Mayors of the
Metropolitan cities of Diyarbakır (Selçuk Mızraklı), Mardin (Ahmet
Türk) and Van (Bedia Özgökçe Ertan) have so far been dismissed owing
to terrorism-related charges and replaced by government-appointed
trustees. In addition, 6 mayors who won the elections in 2019 were
denied their election certificates based on the fact that they had
previously been dismissed from their jobs by emergency rule decrees.
As a result, 54 out of 65 mayors (83%) of the HDP mayors elected
by the voters are not able to run their municipalities.
Note In addition
, between the summer of 2015 and
November 2019
, more than
6 500 HDP officials, members and voters were imprisoned for their
political engagement.
Note We fear that the level and duration
of repression against HDP members and politicians amount to systematic
political oppression which could aim at suppressing this political
party.
12. Political crackdown is a threat to all opposition parties
and thus seriously undermines the functioning of political life
in Turkey. Ensuring free and fair elections – as much as respecting
the will of the voters, at local and national levels – is a cornerstone
for building a sound democracy. Turkey has a vibrant civic and political life,
including women and environmentalist movements, which contribute
to the public and political debate; whether Turkey should have a
presidential or parliamentary system is an issue which continues
to animate political parties from the opposition. New political
parties were recently formed, notably the Future Party created in
December 2019 by former Prime Minister and AK Party member Ahmet
Davutoğlu, while the former Minister of Economy, Ali Babacan, created
a new political formation called the DEVA Party. A Green Party was also
established in September 2020. These developments will enrich political
debates in Turkey. It is one more reason, taking into account previous
election observation reports, for the Assembly to pay greater attention
to the election conditions and environment, but also, more generally
speaking, to enhance the transparency of the legislative process
as well as the integrity of MPs. We hope that the Turkish Parliament
will draft its code of ethical conduct for MPs, as requested by
GRECO in 2019.
Note We also expect the Turkish
authorities to make full use of the Council of Europe’s expertise
when considering the revision of the Law on political parties and election
legislation, including the lowering of the 10% electoral threshold,
which remains the highest in Europe.
3 Rule
of law and functioning of the justice system
3.1 The
situation of lawyers
13. We are concerned by the deteriorating
situation of lawyers in Turkey and the criminalisation of their activities.
On 11 September 2020, 47 lawyers were arrested and their offices
searched. Since July 2016, over 1 500 lawyers have been prosecuted.
We recall that lawyers play a key role in the implementation of democratic
standards and the effective administration of justice. They must
therefore be able to exercise their profession independently and
safely.
Note
14. A high number of lawyers have been detained on terror-related
charges for defending clients charged with terrorism. Fourteen lawyers
from the Progressive Lawyers’ Association (an organisation closed
on 22 November 2016 by a decree issued under the state of emergency)
involved in “terrorism-related” cases or cases deemed sensitive
were sentenced to heavy prison sentences, which were upheld by the
Supreme Court of Cassation on 15 September 2020.
15. Some of these lawyers were forced to resort to hunger strikes,
at the cost of their lives, to demand fair trials. Ebru Timtik was
one of them. She paid the ultimate price for her quest for a fair
trial, while her colleague Aytaç Ünsal was finally released in a
critical state. Ms Timtik’s death added to the death of the music
band Grup Yorum members Helin Bölek and İbrahim Gökçek, as well
as Mustafa Koçak who were also demanding a fair trial but lost their
lives in April 2020 and May 2020.
3.2 Revision
of the Attorneyship Law
16. Not only individual lawyers,
but also their professional organisations are challenged. In July
2020, the parliament adopted the 2020 amendments to the Attorneyship
Law of 1969, which introduced two major changes to the system of
governance of the legal profession in Turkey, allowing the creation
of multiple bar associations in large provincial centres (instead
of a single one, as before)
Note and
changing the relative voting power of bar associations within the
Union of the Turkish Bar Associations (the UTBA). The law was adopted without
proper consultation of the bar associations and was seen as a step
which could jeopardise the position of lawyers in the Turkish justice
system.
17. At the request of the Monitoring Committee, on 9 October 2020
the Venice Commission adopted an opinion on the 2020 amendments
to the Attorneyship Law of 1969.
Note It concluded that it was not clear
how the new system would improve the quality of services or training
provided by the UTBA or the Bar Associations to the attorneys. It
pointed out that “the creation of alternative bar associations may
lead to incoherent practice in disciplinary matters and create administrative
instability”. And there was “a real risk that the creation of multiple bar
associations in the same city, based on voluntary membership, will
lead to further politicisation of the legal profession. This is
incompatible with the neutral role which the attorneys should normally
play. It will also endanger the independence of attorneys, which
is implicitly required by the international human rights treaties, by
the soft law standards, and which is one of the requirements of
the rule of law”. The Venice Commission concluded that the Turkish
authorities should consider alternative solutions while ensuring
“meaningful involvement of the community of Turkish attorneys in
the discussions about any further reforms of the legal profession.”
Note
18. Further to the adoption of the law, a second bar association
was created in Istanbul and was licensed in September. In other
cities however, lawyers failed to collect 2000 signatures in time
to create a second association and send delegates for the UTBA election
scheduled for 11 October 2020. Owing to a new outbreak of the pandemic,
the Ministry of Interior decided to prohibit events (such as elections
and general assemblies) of professional organisations, including
bar associations and NGOs, until 1 December 2020 – while allowing,
at the same time, similar events organised by political parties.
This decision was challenged by the bar associations but upheld
by the Supreme Election Council (SEB). The bar associations argued
that the ban was intended to gain time for the newly formed pro-government
bar associations to send delegates for the UTBA election.
Note
19. We call on the Turkish authorities to revise the Attorneyship
Law as amended in July 2020 in line with the opinion of the Venice
Commission of October 2020 and to authorise, without further delay,
the organisation of the general assembly of lawyers to allow the
regular holding of elections of the UTBA, taking into account the
sanitary requirements in vigour.
3.3 Lack
of separation of powers
20. The justice system still faces
many challenges, especially after the dismissal of a quarter of
its judges and prosecutors after the failed coup. The 2017 constitutional
amendments establishing a presidential system with extensive powers
granted to the President of the Republic, further undermined the
independence of the judiciary and do not guarantee the separation
of powers, as documented by the Venice Commission in 2017
Note and by GRECO in 2018
Note. In particular the composition of
the Council of Judges and Prosecutors, which contradicts Council
of Europe standards, and the suspension of ordinary safeguards and
procedures for the dismissal, recruitment and appointment of judges
and prosecutors has, according to the Commissioner for Human Rights,
Ms Dunja Mijatović, reinforced “the existing tendency of the Turkish
judiciary to put the protection of the State above that of human
rights. The criminal process appears to often be reduced to a mere formality,
especially in terrorism-related cases. In countless other cases,
the judiciary is literally bypassed even for measures seriously
affecting individuals’ core human rights, such as certain travel
restrictions or the right to practise as a lawyer”
Note.
21. We would also like to refer to the comprehensive report issued
by the Commissioner for Human Rights in February 2020, which provides
for an in-depth analysis of the current situation, including the
impact of the presidential system on the protection of human rights.
Ms Mijatović describes the devastating consequences of the measures
taken by the authorities in the aftermath of the state of emergency
on judicial independence and impartiality and on the rule of law
and human rights in Turkey. Numerous long-standing problems, such
as the misuse of detentions on remand, have been exacerbated and
compounded by new shortcomings.
3.4 Announced
reforms of the justice system and expectations
22. The Turkish authorities launched
a new reform of the justice system in May 2019. On 17 October 2019, the
Grand National Assembly of Turkey adopted a Law intending to “improve
the independence, impartiality and transparency of the judiciary;
further strengthen the freedom of expression and press; enhance
the right to a fair trial by setting maximum detention periods;
further strengthen the rights of juveniles and victims of crime;
facilitate access to justice and reduce workload of the judiciary”
Note. Some notable measures adopted include:
the possibility to appeal judgments of (criminal sections of) regional
courts, particularly those with direct effect on freedom of expression;
inclusion of a specific provision in the Anti-terror Law stating
that “the expression of thoughts which do not exceed the limits
of reporting or made for the purpose of criticism shall not constitute
an offence”. Other measures include an amendment to the internet
law introducing a gradual blocking mechanism of websites; definitions
of new time limits for pre-trial detention
Note and reissuance of passports following
an ordinary application assessment by law enforcement authorities
in case of acquittal.
23. The readiness of the authorities to acknowledge, and address,
shortcomings in the judicial system is to be welcomed. The Monitoring
Committee had a chance to discuss the reform of the justice system
and the Action plan for human rights and their expected impact on
freedom of expression and assembly during a hearing organised on
13 November 2019. Some of the measures taken are positive steps.
The dialogue established with the Council of Europe to discuss the
reform strategy and the human rights action plan is also to the
credit of the authorities and should be further strengthened, and
we expect the working group set up by the Ministry of Justice and
the Council of Europe to resume its work. However, there is a shared
feeling among many stakeholders that, despite its good intention,
the strategy failed to address core problems of the justice system:
- A group of opposition political
parties composed of the CHP, the Democrat Party, the HDP, the Saadet (Felicity)
Party and the Turkish Labour Party viewed the judicial reform strategy
paper as failing “to address major judicial problems such as the
independence of the judiciary, freedom of expression and widespread
and systemic violations of rights caused by the state of emergency
decrees”. This political alliance subsequently drafted amendments
to 14 bills focusing on the need to ensure fair trial (as a matter
of urgency), as well as amendments to the Law on meetings and demonstration
rallies of the Press Law. They also called for the establishment
of a parliamentary committee to debate the justice reform.Note
- The Commissioner for Human Rights explained to the authorities
that “this strategy does not address crucial problems, such as the
constitutional framework guaranteeing judicial independence and
self-governance, or many shortcomings concerning the principles
of fair trial, equality of arms and legal certainty”. Ms Mijatović
also rightly pointed out that the implementation of the strategy
depends on “the authorities’ willingness to completely and very
quickly overhaul key legislation, including the Criminal Code, Anti-Terrorism
Law and Code of Criminal Procedure”.Note
24. As highlighted by Council of Europe Secretary General, Ms Marija
Pejčinović Burić, at the launch of the Human Rights Action Plan
on 9 December 2019, “the ambiguity of some legislation, the limited
or narrow interpretation of human rights standards and excessive
limitations on rights and freedoms are still at the origin of many
applications to the European Court of Human Rights”, and changes
in judicial interpretation and further legislative amendments are
needed to overcome these problems.
Note
25. There are pressing and long-lasting issues that should be
addressed seriously and lead to meaningful changes. This Assembly
has, on many occasions, called for a reform of the Anti-terror law
and the Criminal Code, which continue to be interpreted too broadly,
in contradiction with the case law of the European Convention on
Human Rights (ETS No. 5, the Convention), leading to unjustified
prison sentences or pre-trial detentions. In 2019, 36 000 individuals
were prosecuted for “insult to the President”, based on article
299 of the Criminal Code which should be deleted or amended, according
to the Venice Commission.
26. The management of the pandemic resulted in the adoption of
the Turkish Criminal Enforcement Law aiming at conditionally releasing
90 000 prisoners exposed to the virus in prisons) targeting those
detained under terror-related charges: while we welcomed the adoption
of urgently needed measures to safeguard the health of prisoners,
detained persons and prison staff, we deeply regretted that the
Turkish Parliament had not treated in the same manner detained politicians,
journalists, academics and other civil society activists charged with
‘terrorism’ in unfair trials and had not allowed them to enjoy equal
sanitary preventive measures.
Note The main
opposition, the CHP, challenged this law, which they claimed had
characteristics of an amnesty or pardon law (and would have required
a three-fifths majority in parliament). The Constitutional Court
rejected the appeal by a majority, while the President of the Constitutional
Court, Zühtü Arslan, the Deputy President Hasan Tahsin Gökcan and
five members of the Court expressed dissenting opinions to this
decision of rejection.
Note
4 Crackdown
on human rights defenders in the context of the protection of human
rights
4.1 Situation
of human rights defenders and civil society activists
27. Human rights defenders remain
in a difficult position and are subject to political and judicial
harassment. In recent years, the Assembly has expressed its deep
concerns in this regard. Another concern is the Law on meetings
and demonstrations (No. 2911), which is used routinely and arbitrarily
to ban peaceful assemblies and criminalise people’s participation
in them. Many civil society representatives and human rights defenders are
subjected to prosecution and judicial harassment while carrying
out peaceful activities or expressing opinions which might not be
mainstream. We have reacted, together with the General Rapporteur
of the Assembly on the situation of human rights defenders in Council
of Europe member States, Alexandra Louis (France, ALDE), and we
share the concerns expressed by the Commissioner for Human Rights
about “the tightening of an already repressive legal and regulatory
framework, the outright closure of civil society organisations without
any court decision or an effective remedy, toxic political discourse
and smear campaigns in pro-government media, and numerous criminal
proceedings against human rights defenders”.
Note We would like to present
a few examples which, we think are telling of the current situation:
- “Academics for Peace” were charged
with “terror propaganda” after signing a Declaration
of Peace “We shall not be a party to this crime” issued in 2016
in the wake of the military operations conducted in southeast Turkey.
Over 600 of the 2 200 signatories have gone on to be prosecuted
for terrorism, with dramatic consequences for their academic careers
and personal lives. On 26 July 2019, the Constitutional Court of
Turkey ruled that the rights of the Academics for Peace had been
violated, a decision welcomed by the rapporteurs of the Assembly.Note Since then, 522 Academics
for Peace have been acquitted. They, however, face difficulties
reintegrating into their academic positions.Note The ruling of the Court, which
established that this peace declaration was within the boundaries
of freedom of expression, was however challenged by the Minister
of the Interior who criticised the Court’s ruling and stated that
this petition was “a declaration of a terrorist organisation, the
PKK [Kurdistan Workers' Party]”.Note
- We have also been following with great concern the “Büyükada
trial” of 11 human rights defenders, including the honorary chairperson
of Amnesty International, Taner Kılıç, who had participated in a human
rights training on the Prince Islands and were arrested in July
2016 on terror-related charges.Note Taner Kılıç was detained
for allegedly using the encrypted messenger Bylock (allegedly used
by Gülen movement followers and released following expert reports
denying this charge. However, in November 2019, the State prosecutor
requested convictions against Taner Kılıç, Idil Eser, Özlem Dalkıran,
Günal Kurşun, Veli Acu and Nejat Taştan and requested the acquittal
of Nalan Erkem, Ilknur Ustun, Şeyhmus Özbekli, Ali Gharavi and Peter
Steudtner. On 3 July 2020, despite lack of credible evidence Note, the Istanbul 35th High
Criminal Court, by a majority decision, convicted Taner Kılıç of
‘membership of a terrorist organisation’ and sentenced him to six
years and three months in prison. Idil Eser, Özlem Dalkıran and
Günal Kurşun were convicted of ‘knowingly and willingly assisting
a terrorist organisation without being members of it and were sentenced
to one year and 13 months. The remaining seven human rights defenders
were acquitted, but the prosecutor has appealed the acquittals of
two further defenders – Veli Acu and Nejat Taştan. The “Büyükada
trial” which has been on-going for three years, is emblematic of
a pattern of judicial harassment of human rights defenders and of
civil society and unjust conviction of prominent human rights defenders
which sends a chilling message to civil society in an attempt to
paralyse and dissuade it.
- Women’s organisations have also been under pressure. Their
marches have been regularly terminated by the police. The overall
atmosphere is not conducive to promoting women’s rights and gender
equality. Recently there were discussions initiated by Turkish senior
politicians about a possible withdrawal from the Council of Europe
Convention to prevent and combat violence against women and domestic
violence (CETS No. 210, Istanbul Convention). It would be extremely
damageable for Turkish society – if not a blunt backlash – to deprive
the Turkish people, in particular women and girls, of this unique
legal instrument which was promoted by Turkey itself – being the
first country to ratify this Convention in 2012, to its credit.
We also note that this proposal was met with fierce protests from
women’s organisations across political parties, thus demonstrating
the attachment of Turkish people to this Convention and its underlying
principles.Note. We encourage the authorities to remain
committed to the Istanbul Convention, to implement the recommendations
made by GREVIO and the Committee of the Parties in January 2019Note, and to refrain from any negative
stance or piece of legislation which could harm the conditions of
women in Turkey and prevent them from living free from any violence.
Crackdowns on women’s organisations have in particular a regrettable
chilling effect on women’s participation in political and social
life.
- Finally, the management of the Covid-19 pandemic is having
repercussions in Turkish civil society: doctors are facing increased
pressure when debating the accuracy of data about the number of
infected persons. According to official figures of the Ministry
of Interior, as of May 2020, at least 510 people have been taken
into custody over allegedly “baseless” and “provocative” social
media posts about the pandemic and the state’s response to it.Note
4.2 Freedom
of expression and media
28. Journalists continue to be
targeted, prosecuted and arrested for their work, or prevented from
working. We refer to the previous resolutions adopted by the Assembly.
In January 2020, our colleague, Lord Foulkes (United Kingdom, SOC),
presented his report “Threats to media freedom and journalists’
security in Europe to the Assembly”. This report makes several references
to Turkey and lists some of the challenges faced by Turkish journalists
and media, in particular the “excessive or arbitrary anti-terrorist
and anti-crime legislation” coupled with “arbitrary and biased justice”.
Note
29. Investigative journalism is particularly threatened. The case
of exiled journalist Can Dündar, who was sentenced for revealing
state secrets when disclosing that Turkey was sending arms to Syria,
is telling: the İstanbul 14th High Criminal Court decided on 7 October
2020, to formally declare him a fugitive and ordered the confiscation
of his personal assets in Turkey, citing his failure to appear before
court in his ongoing trial, and the appointment of a trustee to
manage his assets. Another recent example is the gag placed by a
Turkish court on the publication of the FinCEN files investigations
Note (including on the business run by
Iranian-Turkish businessman Reza Zarrab and his alleged ties to,
and the alleged involvement of senior Turkish politicians), thus
preventing Turkish media outlets from reporting on some of these
key findings.
30. The Assembly has always stressed that media freedom is a pre-requisite
in a democratic society. In this context, the decision of the Constitutional
Court of Turkey of 26 December 2019, ruling by a vote of 10 to 6
that the full access block to Wikipedia is a violation of freedom
of expression, is to be welcomed. It is regrettable that this decision
was taken almost two years after the introduction of the ban, and
after the lodging of an application to the European Court of Human
Rights.
Note Unfortunately, later developments
did not confirm this trend: on 28 July 2020, the Turkish parliament
adopted a new law on social media requiring foreign social media
sites to appoint Turkish-based representatives to address authorities'
concerns over content, prescribing deadlines for removal of material
and fines that could be imposed on companies such as the blocking
of advertisements, the slashing of their bandwidth by up to 90%,
or blocking access. We fear this law will further restrict freedom
of the media on social networks and prevent Turkish people’s access
to information, as social media remains the main platform that people
use to receive independent news, express their views, criticise
and challenge the government.
Note
31. We note that external military interventions by Turkey have
also resulted in further restrictions of fundamental freedoms (especially
freedom of expression and assembly), as documented in January 2018 “(Operation
Olive Branch”) and October 2019 (“Operation Peace Spring”) for the
military operations conducted in northeast Syria.
Note The support granted by Turkey to Azerbaijan
in its conflict with Armenia has also had adverse effect inside
Turkey, including giving rise to hate speech against the member
of parliament and deputy Chairperson of the HDP Garo Paylan of Armenian
origin, who was targeted by a pro-government think tank, the Center
for Eurasian Strategic Studies (ASAM), after making a call for peace
Note, or intimidation undertaken on 28
September 2020, with a convoy of vehicles waving Azerbaijani flags
and passing through the neighbourhood of Kumkapı, which has a large
Armenian population and is home to the Armenian Orthodox Patriarchate.
Despite the statement made by AK Party Spokesperson Ömer Çelik against
provocations carried out on members of the minority Armenian community
in the country, saying threats and harassments against them will
not be allowed, concerns remain about the situation of Armenians
in Turkey.
4.3 Allegations
of torture and ill-treatment
32. The question of allegations
of torture, especially since the failed coup, has been brought on
many occasions to the attention of PACE co-rapporteurs and the Monitoring
Committee. Allegations of torture were mentioned in the context
of the abduction of alleged members of the Gülen Movement living
abroad
Note, and sent back to Turkey.
Note Media-outlets
have issued reports about alleged ill-treatment of former civil
servants in the Ankara Security Directorate in May 2019
Note, allegations of torture of students
in the Gazi neighbourhood police station (Istanbul)
Note and allegations of assault and torture
against 36 members of the HDP Youth Assembly at the İstanbul Security
Directorate after their arrest for chanting anti-war slogans.
Note The Human Rights Association has
documented many cases of alleged torture and ill-treatment.
Note One of the most
striking cases concerns two farmers from a district of Van, Osman
Şiban and Servet Turgut, who allegedly were dropped from a helicopter
(this seems to be confirmed by hospital reports) after they being
detained and tortured by soldiers. Servet Turgut lost his life while
Osman Şiban suffered loss of memory after heavy torture. An investigation
was launched by the prosecutor’s office.
Note
33. These concerns have been confirmed in the last reports published
by the Committee for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment (CPT): during its visit in 2017, the CPT received
a considerable number of allegations, mostly concerning excessive
use of force at the time of apprehension, and allegations of physical
ill-treatment inside law enforcement establishments. “In a number
of cases, the alleged ill-treatment was of such severity that it
could be considered as amounting to torture”.
Note In 2019, the CPT “gained the impression
that, compared to the findings of the 2017 visit, the severity of
alleged police ill-treatment has diminished. However, the frequency
of allegations remains at a worrying level”. The CPT reiterated
its recommendation that “a clear and firm message of “zero tolerance”
of ill-treatment be delivered to all law enforcement officials,
from the highest political level, namely the President of the Republic”. The
CPT called upon the Turkish authorities to take decisive action
to “curb prison population inflation and to eradicate prison overcrowding”.The
solitary confinement of the prisoners on the İmralı island is considered
as unacceptable. Apart from a few visits from authorities in 2019,
Abdullah Öcalan remains cut off from contacts with the outside world,
prompting the CPT to call for the development of a “sustainable
system of regular visits by family members and lawyers”.
Note
34. While we welcome the publication of the reports prepared by
the CPT in 2017 and 2019, we also reiterate the call made by the
Assembly to authorise, without undue delay, the publication of the
2016 report and implement all CPT’s recommendations. We take these
allegations very seriously and need to inquire into how the Turkish
authorities and institutions have responded to these allegations,
and whether the country remains committed to its “zero-tolerance
policy” concerning torture and ill-treatment.
4.4 Implementation
of the judgments of the European Court of Human Rights
35. In recent months, two rulings
of the European Court of Human Rights finding a violation of Article
18 of the Convention in conjunction with Article 5.1 (right to liberty
and security) drew particular attention:
- The case of former HDP co-chair Selahattin Demirtaş (in
detention since November 2016) was already raised in Resolution 2260 (2019). The Chamber of the European Court of Human Rights,
in its November 2018 ruling (not final), found that it had been
established beyond reasonable doubt that the extension of Mr Demirtaş’s
detention, especially during two crucial campaigns, namely the referendum
and the presidential election, had pursued the “predominant ulterior
purpose of stifling pluralism and limiting freedom of political
debate, which is at the very core of the concept of a democratic
society”. Both parties to the case appealed the judgment. The hearing
in the Grand Chamber took place in September 2019 and the Court
has yet to deliver its final judgment, which we now urgently expect
– Mr Demirtaş having been behind bars since October 2016.
- On 10 December 2019, in a Chamber ruling on the Kavala vs. Turkey case,Note the European Court of Human Rights urged
Turkey to release businessman and activist Osman Kavala (in detention
for more than two years) who was accused of fomenting the 2013 Gezi
protests. The Court unanimously concluded that there had been a
violation of Article 5.1.c (owing to the lack of reasonable suspicion
that the applicant had had violent intentions, and the case file
concerned acts related to the mere exercise of rights guaranteed
by the Convention or normal activism on the part of a human-rights
defender) and a violation of Article 5.4 (due to lack of “speedy”
review of this case by the Constitutional Court). By six votes to
one, the Court concluded that there had been a violation of Article
18, since the extended detention of a human-rights defender pursued
the ulterior purpose of reducing him to silence, with a chilling
effect on civil society, and required his immediate release. The
ruling of the Chamber became final on 13 May 2020 after the Grand
Chamber decided to reject the appeal brought by the Turkish authorities,
which prompted us to call for the immediate release of Osman Kavala,
a call also made by the Committee of Ministers (in charge of the
supervision of the implementation of the Court’s judgments) in September
and October 2020.
36. In both cases, the European Court of Human Rights found violations
of Article 18 of the European Convention on Human Rights
Note in
conjunction with Article 5.1 (right to liberty and security). Violation
of Article 18 is unprecedented for Turkey, and reveals rising concerns
resulting from the administration of the justice system. We reiterate
the call made by the Assembly in January 2019 to fully implement
the rulings of the Court and take all necessary measures, including
legislative changes, to redress the situation.
37. Concerning the case of Mr Kavala, in September 2020, the Constitutional
Court postponed reviewing his individual application claiming on
the grounds that his arrest on "espionage" charges shortly after
the court ruled for his acquittal was not legal. We were appalled
to learn that, on 9 October 2020, a new indictment was prepared
against Mr Kavala, claiming (again) that Mr Kavala had organised
the 2013 Gezi Park protests, with prosecutors seeking aggravated
life imprisonment. This new indictment, based on charges for which
Mr Kavala was already cleared in February 2020, amounts to judicial
harassment, and the charges should be dropped immediately.
4.5 The
long-lasting effects of the state of emergency.
38. Despite the lifting of the
state of emergency
Note in
July 2018, which was welcomed by the Assembly
Note, Law No. 7145 on the
“Amendment to Some Laws and Emergency Draft Laws” was adopted in
July 2018 and incorporated emergency decree provisions in ordinary
laws, with continued restrictive effects on fundamental rights.
For example, provincial governors were granted extra powers to restrict
movement and assemblies in their provinces, citing vague notions
of public order and security concerns, which has disproportionately affected
“demonstrations in or concerning the mainly Kurdish southeast and
assemblies by lesbian, gay, bisexual or transgender (LGBT) groups
throughout the country”.
Note Since the failed coup d’Etat, more
than 77 000 people have been jailed pending trial and about 150 000
civil servants, military personnel and others have been dismissed
or suspended from their jobs, without being able to challenge these
decisions.
39. The Assembly had welcomed 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 moral entities (associations,
foundations, private institutions, media, etc.), enabling them to
challenge measures taken under the decree laws. The Assembly had
stressed the importance of this 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 for those affected by the decree laws”.
Note
40. Over 120 000 applications were lodged. Fifty percent of them
concerned the re-opening of associations, foundations, dormitories,
television channels and newspapers, while the remaining accepted
applications were about the reinstatement of public officials in
their posts. By the end of 2019, the Inquiry Commission had processed
98 300 of the 126 300 appeals registered since its first decision
on 22 December 2017 and had rejected 91,3 % of the applications.
Note In December 2019, the term of office
of the Commission was extended by one year.
41. There were severe consequences for the dismissed persons and
their families: their passports were confiscated, they were banned
from working in public institutions, stigmatised, deprived of access
to the social security scheme, their assets were seized and their
property rights were restricted. In 2017, the Assembly feared that
these dismissed persons would be condemned to a “civic death”
Note, with dramatic and detrimental long-term
effect on Turkish society, the public administration, or in institutions
which have links to the administration. Amnesty International stressed
the need to “ensure the protection of [their] human rights, including
to work, freedom of movement, health, housing and to an adequate
standard of living”
Note. Academics have also been impacted
by these measures. It is estimated that 6 000 academics have been
dismissed under emergency decrees since 2016. In some cases, they
had their passports cancelled and were prevented from working in
the public sector. Three academics resorted to lodging a complaint
with the European Court of Human Rights.
5 Concluding
remarks
42. Prepared in the context of
an urgent debate following a new crackdown on political opposition
and civil dissent, this report intends to highlight some of the
pressing issues that seriously undermine democracy, human rights
and rule of law. The Assembly has been engaged, since 2017, in a
monitoring procedure in respect of Turkey, which provides the necessary
tools to engage in continuous, frank and open discussions with the
Turkish authorities and to discuss how the Assembly and the Council
of Europe could best accompany the Turkish authorities in their
intended improvement of fundamental rights. Furthermore, this procedure
allows the Assembly to articulate its expectations, which would
allow Turkey to leave the monitoring procedure.
43. Without being exhaustive, this report has highlighted a number
of issues that will need to be discussed with the authorities. The
launch of a justice reform strategy and a human rights action plan
are first steps, which need to be reinforced. We also want to discuss
progress in enhancing the independence and functioning of the justice
system, freedom of the media, expression and assembly, fundamental
human rights, women’s rights, or election conditions, which are
serious concerns raised by the Assembly over many years. We should
also recall that many other groups in society are subjected to pressure,
such as women (and the repeated attempts to hinder or undermine
the implementation of the Istanbul Convention) or the doctors, who
have been under pressure during the Covid-19 pandemic.
44. We are confident that Turkey and its vibrant civic and political
life, with a people genuinely committed to democracy, will find
the ways and means to further engage in a much-needed democratisation
process. We hope that the Assembly will provide the necessary support
and political backing to its monitoring co-rapporteurs to keep Turkey,
which is a long-lasting and important member State, on the Assembly’s
agenda, and contribute to fostering inclusive political dialogue.
