B Explanatory memorandum
by Mr Thomas Hammarberg and Mr John Howell, co-rapporteurs
1 Introduction
1. In March 2021, the leaders
of the five political groups of the Parliamentary Assembly tabled
a request for an urgent debate on “The
functioning of democratic institutions in Turkey”. On 15 April 2021,
this request was formally supported by the Monitoring Committee.
The Assembly decided on 19 April 2021 to hold an urgent procedure
debate on the subject and referred it 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 19 April 2021.
2. This request for an urgent procedure debate is the third one
in three years, reflecting the renewed concerns of this Assembly
pertaining to democracy, rule of law and human rights in Turkey.
In January 2019, the Assembly adopted
Resolution
2260 (2019) “The worsening situation of opposition politicians in
Turkey: what can be done to protect their fundamental rights in
a Council of Europe member State?” Six months ago, the Assembly
debated the “New crackdown on political opposition and civil dissent
in Turkey: urgent need to safeguard Council of Europe standards”
and adopted
Resolution
2347 (2020) on 23 October 2021. Furthermore, the Standing Committee
organised, on 19 March 2021, a current affairs debate on “recent developments
concerning parliamentary democracy in Turkey” which highlighted
the concerns of many members of the Assembly with respect to the
functioning of democratic institutions.
3. Since the adoption of the last resolution on Turkey, the Monitoring
Committee has followed the developments in the country very closely.
It organised a hearing on the situation of dismissed and replaced mayors
with the participation of members of the majority and the opposition,
governmental and non-governmental experts, as well as members of
the European Commission for Democracy through Law (Venice Commission)
and the Congress of local and regional authorities of the Council
of Europe in November 2020 and on the “The follow-up to
Resolution 2347 (2020): recent developments with respect to the rights of the opposition”
on 15 April 2021, with the participation of Philippe Dam, Advocacy
Director, Europe and Central Asia Division, Human Rights Watch,
Professor Osman Can, University of Marmara, Faculty of Law, Department
of Constitutional Law and Mustafa Tayyip Çiçek, Deputy Director
General of International Relations and EU Affairs, Ministry of Justice.
The President of the Assembly paid a three-day official visit from 30
March to 1 April 2021 where the President stressed the need to make
progress.
Note
4. We have decided to focus this report on major recent developments
which are relevant to the functioning of democratic institutions,
the rule of law and the protection of human rights in Turkey, in
particular the issue of parliamentary immunity, the attempts to
close the Peoples' Democratic Party (HDP), the continued pressure on
dissenting voices and the withdrawal from the Council of Europe
Convention on Preventing and Combating Violence against Women and
Domestic Violence (
CETS
No.210, the Istanbul Convention). This report under urgent
procedure does not seek to provide for a comprehensive analysis
of all relevant issues related to human rights, democracy and the
rule of law, which ought to be addressed in a full monitoring report.
5. In this report, we have taken the stance to focus on some
domestic developments and their compliance to Council of Europe
standards, with special attention paid to the parliament. We note
with concern that the presidential system established in 2017 has
weakened the role of the parliament. In addition, opposition parliamentarians
have been under pressure; their parliamentary immunity might be
lifted for their (critical) views; restrictions on freedom of expression
and media impacts the exercise of their mandates. In addition the parliament
has been bypassed on issues that have a major impact on society
and which ought to be debated in parliament – such as the fight
against violence against women and domestic violence, as highlighted
by the presidential decision to withdraw from the Istanbul convention.
The Assembly has always stressed that “a political opposition in
and outside parliament is an essential component of a well-functioning
democracy”
Note.
In the current circumstances, the opposition finds it difficult
to “evaluate, oversee and criticise the work of the ruling government,
ensure transparency of public decision and efficiency in the management
of public affairs, thereby ensuring the defence of the public interest
and preventing misuse and dysfunction”.
Note
2 The
issue of parliamentary immunity
6. In its
Resolution 2347 (2020) of October 2020 (following an urgent procedure debate),
the Assembly strongly condemned the new crackdown on political opposition
and civil dissent in Turkey, which infringed the fundamental rights
of local politicians and (former) members of parliament from the
opposition, lawyers, journalists and civil society activists. In
particular it stressed that the lifting of parliamentary immunity
of MPs on terror-related charges and the dismissal and replacement
of dozens of mayors from the opposition after the March 2019 elections,
disregarded the voters’ will and further jeopardised the functioning
of democratic institutions. The Assembly therefore called on Turkey
to put an end to laws and practices that contravened democratic
standards, revise its legislation and constitutional framework in
order to ensure the separation of powers, restore freedom of speech
and media freedom, restrict the interpretation of its anti-terror
legislation and implement the judgments of the European Court of
Human Rights. The Assembly also called on Turkey to secure conditions
allowing its vibrant civil and political society, genuinely committed
to democracy, to act and speak out freely and safely.
7. This Assembly has, on many occasions, stressed that parliamentary
immunity needs to be better protected in Turkey in order to allow
parliamentarians to exercise their political mandate, and to express
their opinions within the boundaries of freedom of speech as understood
by the European Court of Human Rights.
8. We are concerned that almost a third of all parliamentarians
are currently subject to summaries of proceedings aiming at lifting
parliamentary immunity. These requests target disproportionally
the opposition: as of 1 March 2021, 90 % of the 192 MPs who had
summaries of proceedings under the review of the Joint Parliamentary
Constitutional and Justice Committee were from opposition parties
(Republican People's Party (CHP), Peoples' Democratic Party (HDP)
and Good Party (IYI)). Out of a total of 1 267 summaries, 955 (75 %) have
been prepared against 59 HDP deputies (about 10 % of the parliament);
245 summaries (about 20 %) have been prepared against 97 deputies
of CHP, and there are only 13 summaries against ruling Justice and Development
Party (AKP) deputies, 8 against Nationalist Party (MHP) deputies,
and 15 against İYİ Party deputies.”
Note In addition, 47
MPs from the HDP elected in 2018 (out of 59) are now being threatened
to be banned from politics following the procedure launch to close
the HDP party (see below).
9. Request for lifting of immunity of – overwhelmingly opposition
– members of parliament by the Turkish presidency is becoming a
routine exercise: on 15 April 2021, new motions were filed to lift
the parliamentary immunity of eight CHP and two HDP deputies, including
main opposition CHP leader Kemal Kılıçdaroğlu. The summary of proceedings
against the CHP deputies concerns the party's brochure named “The
Political Leg of FETÖ
Note in 21 Questions.” These
proceedings add to those initiated against eleven other HDP and
Democratic Regions Party (DBP) deputies weeks before, and other
ones concerning 25 members of opposition, 22 of them being from
the HDP, including PACE members Hişyar Öszoy and Feleknas Uca, who
are prosecuted on terror charges, and 3 MPs from the CHP. Three
HDP parliamentarians lost their mandates due to terror-related conviction.
In addition, 9 parliamentarians from the HDP, including its co-chair
Pervin Buldan, face aggravated life sentences for having allegedly
organised the deadly “Kobane protests” in October 2014.
Note To
date, over 200 MPs (one third of the MPs) face losing their immunity.
10. On a positive note, we had welcomed the return to parliament
of opposition MP Enis Berberoğlu (from the CHP), after a long political
struggle: Mr Berberoğlu was originally sentenced to 5 years and
10 months in prison in October 2017 for disclosing secret State
information, following the publication of a news report on “MİT
Trucks” in the Cumhuriyet newspaper. Mr Berberoğlu was re-elected
MP in June 2018 while in pre-trial detention. A ruling by the Supreme
Court of Cassation upheld his parliamentary immunity and suspended
the execution of his sentence during his parliamentary mandate.
In June 2020 however, he was unexpectedly stripped of his parliamentary
immunity and detained. He was then put under house arrest in September
2020 due to the Covid-19 prison regulations. After Turkey’s Constitutional
Court twice ruled that his rights to be elected and engage in political
activities had been violated, a lower court in Istanbul finally
held a re-trial, which paved the way for his return to parliament.
Note We were however informed that new
summaries of proceedings had been sent to parliament last month,
seeking again the lifting of Mr Berberoğlu’s immunity.
11. Another striking example concerns the stripping of immunity
and loss of mandate of HDP parliamentarian Dr Ömer Faruk Gergerlioğlu.
Note Dr Gergerlioğlu has a conservative
background, he was a human rights activist in the Mazlum-Der organisation.
He was a physician but was dismissed from the medical profession
by a decree issued under the state of emergency on 7 January 2017
and could not work in either public or private medical facilities.
Elected in 2018 in parliament, he has remained a vocal human rights advocate.
In 2016, he was convicted of “making propaganda for a terrorist
organisation” and sentenced to 2,5 years in prison after re-tweeting
a news story (reporting that the leadership of the armed Kurdistan
Workers’ Party (PKK) had called on the Turkish State to take a step
towards peace) which was published by the news agency T24. This
news agency was not prosecuted for this publication,
Note which makes Dr
Gergerlioğlu’s conviction dubious, if not spurious. The Supreme
Court of Cassation upheld his conviction and sentence of two years
and six months in prison on February 2021. Dr Gergerlioğlu lodged
an individual application to the Constitutional Court
Note (which does not have a suspensive
effect) to challenge the grounds of the conviction. However, the
parliament proceeded with the reading of his conviction on 17 March
2021, leading to the automatic loss of his seat.
Note Dr Gergerlioğlu started a “justice watch”
in parliament to protest his loss of mandate, was evicted, arrested
on 21 March 2021 after an investigation was launched following his
“refusal to leave the Parliament” and released, and was finally
detained on 3 April 2021 despite being hospitalised.
12. The constitution provides that final convictions lead to automatic
loss of mandate. The Constitutional Court is not an appeal court
of the Supreme Court of Cassation and lodging individual applications
to the Constitutional Court does not have a suspensive effect. However,
in recent times, we note that several rulings of the Constitutional
Court found a violation of rights covered by the European Convention
of Human Rights (ETS No. 5). This led to re-trials of the parliamentarians,
and eventually their return to parliament. Rulings of the Constitutional
Court have therefore played a decisive role in restoring MPs’ immunity.
This was the case for Mr Berberoğlu in 2020 and 2021 (see above),
or MP Sırrı Süreyya Önder in 2019. In addition, as in Mr Berberoğlu’s
case, the execution of prior sentences are (or can be) suspended
until the convicted parliamentarians complete their mandate, with
due respect of their parliamentary immunity. That was not the case
for Dr Gergerlioğlu.
13. It is also striking that many opposition parliamentarians
could see their parliamentary immunity due to their statements or
publications falling under the scope of the anti-terror law, or
under provisions of the Criminal Code (notably article 299 dealing
with “insult to the president”) which the Assembly and the Venice
Commission deemed as problematic. It is worth recalling that the
Venice Commission considers that “freedom of expression of Members
of Parliament is an essential part of democracy. (…) Only speech
that calls for violence or directly supports the perpetrators of
violence can lead to criminal prosecution. (…) The European Court
of Human Rights case law shows that Turkey has a problem with safeguarding
freedom of expression, not least with respect to cases considered
as propaganda for terrorism. This is partly due to the fact that
(…) the scope of several provisions of the Criminal Code is too
wide. This endangers freedom of expression in general but notably
also freedom of expression of members of the National Assembly(...).
In the opinion of the Venice Commission, the system of parliamentary
immunity in Turkey should not be weakened, but reinforced, in particular
in order to ensure the freedom of speech of Members of Parliament”.
Note We
cannot but reiterate this recommendation from the Venice Commission.
3 Attempts
to close the Peoples' Democratic Party (HDP)
14. As noted in previous Assembly
resolutions, pressure against opposition politicians has intensified
these past years. The Assembly had stressed that this repression
affects disproportionally the HDP and its members at local and national
level and could render the party inoperative. The European Court
of Human Rights established, in 2020, that the arrest and detention
of former co-leader of the HDP, Mr Demirtaş, in 2016 had pursued
the ulterior purpose of stifling pluralism and limiting freedom
of political debate.
15. In recent weeks, a new crackdown on HDP members and MPs happened
after the dreadful execution of 12 Turkish citizens and one Iraqi
citizen who were found dead (after being executed) during a failed
rescue operation launched by the Turkish army in Gara, in northern
Irak, on 10 February 2021. The hostages had been abducted by the
PKK in 2015 and 2016. The circumstances of this military operation
raised questions; the requests tabled by the parliamentary opposition
to establish an investigation committee were rejected. But two days
later, over 700 HDP members were arrested and over 130 of them were
detained as of mid-February.
16. On 17 March 2021, following the request from the MHP, the
Supreme Court of Cassation’s Chief Public Prosecutor Bekir Şahin
Note sent an indictment to the Constitutional
Court seeking the closure of the party on the basis that HDP members
aimed “to destroy and eliminate the indivisible integrity of the
State with its nation” via acting as an extension of the PKK and
“the terrorist groups linked to it” in parliament. The prosecutor
also claimed that the deputies “acted in a way that contradicted
the rules of democratic and universal law” and sought a political
ban of 687 HDP members, including former co-chairs Figen Yüksekdağ
and Selahattin Demirtaş (in prison), Assembly members Hiszyar Oszoy,
Feleknes Uca, Tayip Temil, former Assembly member Filiz Kerestecioğlu
and honorary Assembly member Ertuğrul Kürkçü. In total, 47 MPs who
were elected on the HDP list in 2018 are included in this list.
17. Provided that the HDP is found to be in the “center” of activities
deemed contrary to the Constitution, sanctions could include the
closure of the party, and the ban of HDP members (these members
would be prevented from being founders, members, executive or inspectors
of another political party for five years). Financial sanctions
could also be applied to the party (without being closed), by depriving
the party of financial aid from the Treasury. These decisions require
a qualified majority of two-thirds by the (15) members of the Constitutional
Court.
18. On 31 March 2021, the Constitutional Court returned the indictment
to the Court of Cassation over “procedural deficiencies and omissions”.
In its reasoned decision (published on 15 April 2021), the Constitutional
Court indicated that the Court of Cassation chief prosecutor had
failed to prove the relation between the HDP and the acts listed
in the indictment, according to the justification: the inclusion
of the relevant peoples' acts in the indictment [was] not enough
(…) and the party 'becoming a center' to these acts also [needed]
to be revealed.
Note
19. The issue of party closures is recurrent in Turkey. Since
1961, 25 parties have been closed. Since the first pro-Kurdish party
was represented in parliament (1991), five pro-Kurdish parties have
been closed.
NotePresident
Erdoğan and the AK Party have expressed, on several occasions, being
opposed to the closure of political parties. The European Court
of Human Rights has underlined the primordial role played in a democratic
regime by political parties enjoying the freedoms and rights enshrined
in Article 11 (freedom of assembly and association) and also in
Article 10 (freedom of expression) of the European Convention on Human
Rights. Concerning political parties, it considers that contracting
states have a limited margin of appreciation. Except in one case
(concerning the prohibition of the Refah Party), the Court had found
a violation of article 11 of the Convention (freedom of assembly
and association) in the cases related to the closure of Turkish
political parties, namely the People’s Labor Party (HEP), the Freedom
and Democracy Party (OZDEP), the People’s Democracy Party (HADEP)
and the Democratic Society Party (DTP).
Note
20. The AK Party was subject to a procedure of party closure in
2008.
Note The Assembly had debated this question before
the ruling of the Constitutional Court; in its
Resolution
1622 (2008) “Functioning of democratic institutions in Turkey: recent
developments”, the Assembly had stressed that “regardless of its
outcome, the lawsuit against the ruling party, as well as the Prime
Minister and the President of the Republic, is seriously affecting
political stability in the country, as
well
as the democratic functioning of State institutions (emphasis added).
Following the procedure, the AK Party was not dissolved (10 out
of the 11 judges found that the AK Party had exploited religious
feelings for the sake of political interests and had become the
focus of activities contradicting the principles of a democratic
and secular republic but only a majority of 6 judges (instead of
the 7 required for the qualified majority) had voted for the dissolution
of the party, which was nevertheless subject to a financial sanction
(the Constitutional Court withdrew half of its public financial
support for the period of one year).
Note
21. The attempt to close the HDP appears as the culmination of
a process of continued pressure exerted against the HDP party. The
procedure is going on. Regardless of its outcome, it is a worrying
development which has raised the question of its political motivation
ahead of the next presidential and parliamentary elections planned
in 2023.
Note We
stress that political parties enjoy the freedoms and rights enshrined
in Article 11 (freedom of assembly and association) and Article
10 (freedom of expression) of the European Convention of Human Rights.
Closures of political parties are a drastic measure which should
only occur as a last resort. We remain confident that the Constitutional
Court will be guided by the strict regulations governing the closure of
political parties in Turkey, the case-law of the European Court
of Human Rights – where exceptions set out in Article 11 need to
be construed strictly, with a limited margin of appreciation of
Contracting States – and by the 1999 Guidelines on prohibition and
dissolution of political parties and analogous measures of the Venice Commission.
4 The
withdrawal of the Istanbul Convention: national and international
challenges
22. On 20 March 2020, the President
of the Republic signed, at midnight, a decision withdrawing Turkey from
the Council of Europe Convention on preventing and combating violence
against women and domestic violence
(CETS
No.210), also known as the “Istanbul Convention”. This convention
was opened for signature during the Turkish Presidency of the Committee
of Ministers in Istanbul ten years ago. This presidential decision
triggered huge reactions in Turkey, in Europe and beyond, including
a statement of the Secretary General of the Council of Europe, Marija
Pejčinović Burić, in which she deplored the “devastating news” and
a “huge setback to these efforts [compromising] the protection of
women in Turkey, across Europe and beyond”.
Note In their joint statement,
the President of the Assembly, Rik Daems, and the Chair of the Committee of
Ministers German Minister of Foreign Affairs, Heiko Maas, recalled
that Turkey had been the first member State “to ratify in 2012 the
Council of Europe Convention on preventing and combating violence
against women and domestic violence, opened for signature in Istanbul
during the Turkish Chairmanship of the Organisation 10 years ago.
And it did so by a unanimous vote at the Grand National Assembly”,
deeply regretted the decision of the President of Turkey to withdraw
from this “widely supported” Convention in the country.
Note
23. The withdrawal decision was taken without any parliamentary
debate.This is all the more regrettable
in that the Grand National Assembly had played a leading and pioneering
role in promoting the ratification of the convention. This ratification
was also a push factor for the adoption of Law No. 6284 on Protection
of Family and Prevention of Violence Against Women in 2012 by the
Turkish parliament (which we see is now challenged by people close
to the New Welfare Party
Note).
24. It should also be noted that the Istanbul Convention was the
first Council of Europe convention to include, in its article 70,
a parliamentary involvement in the monitoring of the implementation
of the convention. The Assembly and its Parliamentary Network Women
Free from Violence
Note have adopted numerous reports highlighting
the crucial role of parliamentarians and parliaments in addressing
a societal issue which prevails in all Council of Europe member
States – gender-based violence-, fighting domestic violence and
violence against women and overseeing public policies needed to
eradicate this scourge.
25. We also deeply regret that the justification of this withdrawal
relied on misleading narratives, claiming that the convention had
been “hijacked by the LGBT community” to “normalise homosexuality”
which was seen as “incompatible with Turkey's social and family
values”.
Note Such messages blatantly run counter to
the very objective of the convention, which is to protect women
from violence, including domestic violence. We also heard that withdrawing
from the convention would secure better protection of women thanks
to the possible adoption of domestic legislation. Even though the
Turkish national legislation may be sufficient to combat violence
against women, withdrawing from the Istanbul Convention implies
that Turkey can no longer benefit from its provisions relating to
international co-operation in criminal matters and seek co-operation
from other states parties to bring the perpetrators of crimes against
women to justice. In addition, being part of the convention provides
for an assessment by an independent monitoring body, the Group of
Experts on Action against Violence against Women and Domestic Violence
(GREVIO).
26. The modalities of this withdrawal also raised questions among
civil society activists and opposition political parties. A coalition
of NGOs called on the Council of Europe to reject the notification
sent by the Turkish authorities
Note – this request is however not admissible,
as denunciation of conventions are “notified” to the Secretary General
of the Council of Europe (article 80 of the Convention). The denunciation
was notified on 22 March 2021. It will become effective on 1st July
2021.
27. There were also objections raised as to the fact that the
Istanbul convention had been ratified by the parliament in 2012
(while there was a parliamentary system) and should therefore be, mutatis mutandis, denounced by the
parliament. We understand that there are different legal views on
this issue, and we leave legal considerations to the academic community.
However, we would like to stress that, from a political point of
view, it would have been meaningful to consult the parliament and
civil society organisations active in this field prior to taking
a decision which will affect millions of women and girls in Turkey.
The scope of the convention covers a wide range of human rights
and was widely supported in society. We note moreover that the presidential
decision to withdraw is not based on a consensus in society: as
a matter of fact, all major opposition parties, including the CHP,
the HDP and the IYI, women’s organisations and individual citizens expressed
their attachment to the Istanbul Convention and decided to seize
the State Council to annul the presidential decision of 20 March
2021. It is also appalling to see that women who demonstrated in
favour of the Istanbul convention faced police violence and were
even arrested.
28. In this vein, and with no prejudice to the decision of the
State Council, we expect the Turkish Grand National Assembly to
engage in meaningful debates in parliament: it is urgent to hold
a discussion on the Istanbul Convention that is based on facts –
not on politically motivated misconceptions and myths. The parliament
should also work closely with civil society organisations active
in this field, remain committed to the fight against violence against
women and domestic violence and ensure that all measures are taken
to protect the victims, prosecute the perpetrators, prevent violence
against women and promote equality between women and men, as required
by the positive obligations of member States under the European
Convention of Human Rights. A positive step was taken with the creation
of an ad hoc parliamentary committee on “Researching the causes
of violence against women to determine the necessary policies” on
9 March 2021 following a unanimous vote by the plenary. This committee
includes 19 MP’s from all political parties and will work for 3 months
(with a possible one-month extension). We note that this decision
however followed numerous unsuccessful attempts of opposition parties
to establish such an ad hoc parliamentary commission in view of the
rising feminicides and violence against women. Since June 2018,
opposition parties have tabled tens of motions (the CHP alone 23
of them) which were either not put on the agenda in the General
Assembly or rejected by the ruling majority.
29. We acknowledge that ratifications and denunciations of international
treaties are a matter of national sovereignty. However, we consider
that withdrawing from a human-rights based convention which had
been – unanimously – ratified by the parliament – and with the same
ruling party in power at the time of the ratification and denunciation
– is very surprising and can only constitute a step backwards for
the country. We also fear that, at the European level, it weakens
the multilateral co-operation promoted by the 47 Council of Europe member
States in 2011.
30. We have also noted that the unilateral decision of the president
to withdraw from an international treat without any consultation
of the parliament or the society has triggered speculative debates
on the (legal) possibility for the president to unilaterally decide
to withdraw from any other international treaty, including the European
Convention of Human Rights or other conventions.
Note This “possibility”
could affect the country’s legal stability and predictability. This
leads us to think that we should engage in a reflection about the
standards that should govern the ratification and withdrawal from
international treaties in democratic societies, beyond the minimal
legal and constitutional conditions required. In this respect, the
expertise of the Venice Commission would be useful to provide us
with a comparative study, and possibly guidelines, on the modalities
of the ratification of, and, withdrawal from Council of Europe conventions.
5 Other
recent developments related to human rights and rule of law
5.1 Non
implementation of the European Court of Human Rights judgments in
the cases of Mr Demirtaş and Mr Kavala.
31. There has been no progress
regarding the execution of the judgments of the European Court of
Human Rights concerning former HDP co-chair Selahattin Demirtaş
and philanthropist Osman Kavala, two cases where the Strasbourg
Court found a violation of article 18 of the Convention. The Committee
of Ministers, which is supervising the execution of the European
Court’s judgments, met on 9-11 March 2021.
32. It again urged the Turkish authorities to immediately release
Selahattin Demirtaş,
Note recalling that
his arrest and pre-trial detention (since 2016) especially during
two crucial campaigns pursued an ulterior purpose, namely to stifle
pluralism and limit freedom of political debate (violation of Article
18 taken in conjunction with Article 5) and decided to resume its
examination of the individual measures at its next meeting of June
2021 in the event that the applicant has not been released by then.
33. The Committee of Ministers also examined the implementation
of the Court ruling
Kavala v. Turkey,Note following
the interim resolution adopted in December 2020. It recalled the
Court’s findings that the applicant’s arrest and pre-trial detention
took place in the absence of evidence to support a reasonable suspicion
he had committed an offence (violation of Article 5.1 of the Convention)
and these had an ulterior motive, namely to silence him and dissuade
other human rights defenders (violation of Article 18 taken in conjunction
with Article 5.1). The Committee of Ministers reiterated its deep
concern and called to release Osman Kavala, while waiting for the
reasoned decision of the Constitutional Court (which found that
Kavala’s detention was lawful) and decided to send a letter to the
Minister of Foreign Affairs and discuss this issue at each of its
regular and human rights meetings.
34. The Committee of Ministers also concluded that “the Court’s
findings in this case, in particular under Article 18 of the Convention, and the
subsequent events which gave rise to the above-mentioned presumption that
this violation is continuing, supported by the findings of other
Council of Europe bodies,
reveal pervasive problems
regarding the independence and impartiality of the Turkish judiciary; invited
therefore the authorities
to take adequate
legislative and other measures to protect the judiciary and ensure
that it is robust enough to resist any undue influence, including
from the executive branch”.Note (emphasis
added).
35. It is very discouraging to see that there is no progress on
these files, on the contrary. In December 2020, the Constitutional
Court ruled, by 8 votes against 7, that Kavala's continued detention
did not violate his rights to liberty and security despite the Court
ruling. Judge Engin Yıldırım branded Kavala's imprisonment as “a Kafkaesque
legal spiral” in his dissenting opinion: “the applicant's release
twice and arrest three times, under almost the same accusations
and without the manifestation of new pieces of evidence that result
in strong suspicions, resembles a Kafkaesque legal spiral”.
Note Amnesty International’s Europe Director,
Nils Muižnieks, recalled that the continued detention of Osman Kavala
and Selahattin Demirtaş, who had been arbitrarily and unjustly deprived
of their liberty for years, despite the binding Court decisions
that they be released, “makes a mockery of President Erdoğan’s government’s
attempts to whitewash systemic human rights abuses by unveiling
a meaningless Human Rights Action Plan [on 2 March 2021]. Turkish
authorities must release Kavala and Demirtaş, allow human rights
defenders to do their work and stop putting undue pressure on their judges.”
Note
5.2 Freedom
of expression and media
36. We wish to recall that the
Assembly has in various resolutions called on the Turkish authorities
to improve the situation of the media, and upgrade freedom of expression
and the media. Unfortunately, the situation has not improved much.
It seems that there are slightly fewer journalists in prison as
compared to previous years. However, journalists remain exposed
to “an escalating range of sanctions that includes fines, withdrawal
of advertising and reduction in the bandwidth available to them”
Note and to judicial harassment, notably
under terror-related charges. In Reporters Without Borders 2020
World Press Freedom Index, Turkey ranks 154th out of 180 countries
(compared to 157th in 2019). Amnesty
International, for its part, is alarmed that “the crackdown on dissenting
voices has brought independent journalism in Turkey to the edge
of the precipice”.
Note Two
recent developments in relation to media freedom are mentioned in
the paragraphs below:
37. The European Court of Human Rights, in a Chamber’s ruling
Note (not final) of 13 April 2021, found
that the rights to freedom of expression and security and liberty
of journalist and novelist Ahmet Altan – who has spent more than
four years in prison – had been violated due to lack of evidence,
lack of “reasonable suspicions” and lack of access to his file.
Mr Altan had been arrested in 2016 after the failed coup on terrorism
charges, for his alleged ties to the Gülen Movement and was sentenced
to 10 years and 6 months in prison for “attempting to overthrow
the Government of Turkey”, then “knowingly and willingly aiding
a terrorist organisation despite not being included in its hierarchical
structure”. The Court assessed that the incriminated articles were
written “as part of journalistic activity and cannot be construed
as grounding a reasonable suspicion that the applicant had committed
the offences in question. The applicant’s criticisms of the president’s
political approach cannot be seen as an indication that he had prior
knowledge of the attempted coup of 15 July 2016”.
Note
38. On 14 April 2021, the Supreme Court of Cassation ruled that
Mr Altan should be released based on his prolonged imprisonment
of over four-and-a-half years. We welcome this swift move and verdict
of the Supreme Court of Cassation to redress Mr Altan’s rights violations
and release him. However, this should not obliterate neither the
many years he spent in prison after the failed coup – for his alleged
membership to the Gülenist Movement and for articles he had written
– nor the fact that many journalists remain detained.
39. On 8 April 2021, the Constitutional Court decided to repeal a
statutory decree article that had set the basis for the closures
of media outlets on the ground of “posing a threat to national security”
and to reverse a provision that paved the way for the seizure of
the properties that were shut down. During the state of emergency
declared following the failed coup on 15 July 2016, some 204 media
outlets and distribution companies were closed down by nine statutory
decrees; 179 media outlets are still closed. The Assembly and the
Venice Commission
Note had, at that time, expressed their
concerns about these provisions which would seriously damage the
media landscape and undermine freedom of expression and the media.
We therefore welcome the decision of the Constitutional Court, though
it will take time to redress the damage caused and require proper
compensation to media outlets concerned.
Note
5.3 Dissenting
and critical voices under pressure
40. We continued to pay attention
to Turkey’s vibrant civil society which aspires to the full exercise
of its fundamental rights. As established in previous Assembly resolutions,
dissenting or critical voices, in particular in civil society, are
being silenced. We were shocked to learn about the arrest of Öztürk
Türkdoğan, Chair of the Human Rights Association on 19 March 2021
in a wave of anti-PKK arrests, which also targeted HDP officials.
Mr Türkdoğan was later released under judicial control, with an
international travel ban. Mr Türkdoğan assumed that this arrest
was linked to the position he had taken after the killing of Turkish
hostages in Gara (see above), and the subsequent speech made by
the Minister of Interior, Mr Sülyeman Soylu, who referred to the
Human Rights Association as a “cursed association.”
41. The legal environment has also deteriorated. In December 2021,
we had reacted to the adoption of the Law on the Prevention of Financing
of the Proliferation of Weapons of Mass Destruction,
Note which provides
for the possibility to “temporary suspend” NGOs whose leaders are
facing terror-related investigations and replace them with government-appointed
trustees, for more controls imposed on NGOs' fundraising activities
and donations from foreign countries. The authorities failed to
convince us when explaining that this law aimed at fighting money-laundering.
This legislation does send a strong and chilling signal to civil
society organisations and further undermines the foundations of
the democratic functioning of Turkish society. The Commissioner for
Human Rights, Ms Dunja Mijatović, called on the Turkish authorities
to “refrain from further restricting NGOs activities and freedom
of association in the name of counter-terrorism” in a letter sent
to the Ministers of justice and interior, published on 10 March
2021. She asked the authorities to refrain from implementing this
legislation which, in fact, could undermine NGO’s rights.
NoteNote
42. We are also following other legal proceedings and issues that
NGOs are subject to. In the case of the Büyükada trial (where 11
human defenders attending a human rights seminar on the Büyükada
island had been prosecuted on terrorism related charges in 2017),
we are appalled to learn that the prosecutor at the Supreme Court
of Cassation requested the confirmation of the conviction of former
and now honorary chair of Amnesty International Turkey, Taner Kılıç,
while the other three human rights defenders’ convictions were requested
to be overturned. In view of the (lack of) evidence brought against
Mr Kılıç, this amounts to judicial harassment of a human rights
defender, with obvious chilling effects on other ones. We urge the
Turkish authorities to carefully review this case and drop the charges.
43. We have also been looking at the management of the peaceful
demonstrations organised, without discontinuity, since the appointment
of Professor Bulu as the Bogaziçi University rector by President
Erdoğan on 2 January 2021. This appointment – and subsequent appointments
of deans of the newly created faculties – is challenged both by
the student and the academic communities. As co-rapporteurs, we
have had consultations with students, professors, as well as representatives
of the Higher Council of Education (YÖK), the Ministry of justice
and interior, to whom we expressed our concerns about the arrests
and detention of students, the restrictions to their freedom of
expression and assembly, disproportionate use of police violence, homophobic
statements made by officials and fears expressed with respect to
academic freedoms and democratic processes concerning appointment
procedures. The authorities stated that all procedures were legal
and that police intervention had been proportionate. However, we
note that this conflict, which has lasted over 100 days, is deeply
rooted. We call on the authorities to engage into dialogue with
all stakeholders, take into account the legitimate aspiration for
democratic processes and good governance of universities and find the
means to end this crisis.
5.4 The
electoral environment: challenges and perspectives
44. Judicial and economic reforms
have been initiated by the authorities in 2021 to restore confidence
of the investors and address major economic challenges due to the
Covid-19 pandemic, high inflation and unemployment and a plunging
of Turkish Lira. In this context, the Human Rights Action Plan was
unveiled on 2 March 2021 by President Erdoğan, encompassing 9 goals,
Note 50 targets and nearly 400 activities
that should be implemented over the next two years. They should
notably seek to “strengthen the right to a fair trial”, “protect
and strengthen freedom of expression, association and religion”
and promote “legal predictability and transparency”. This Plan was
met with great scepticism by the opposition and NGOs while, on the
same day, the procedure to close down the HDP was launched by the
Supreme Court of Cassation. For our part, we hope that the Turkish
authorities will seize the opportunity of this Action Plan to take
meaningful steps and make progress in redressing the structural
deficiencies related to human rights and the rule of law, including
the independence of the judiciary and the revision and stricter
interpretation of the anti-terror legislation.
45. Important political reforms have been announced in the wake
of the publication of the Human Rights Action Plan, including the
revision of the law on political parties, of the electoral law and
the drafting of a “civilian constitution”. Concerning the election
law, it is envisaged to lower the electoral threshold (10% for the
time being, the highest in Europe), which would be welcomed: this
is a long-lasting request of the Assembly. The revision of these
pieces of legislation should also, in our view, seek to strengthen
political pluralism, so as to, (and we quote the Venice Commission)
“promote pluralism as a means of guaranteeing participation by all persons
and groups, including minorities, in public life, which should also
allow for the expression of opposition viewpoints and for democratic
transitions of power”.
46. We hope that the Turkish authorities will also seize this
opportunity to address some transparency and integrity issues highlighted
by GRECO in its March 2021 compliance reports (3rd and
4th round), where GRECO urged Turkey
to ensure full judicial independence, integrity standards for MPs
and transparency of party funding.
Note
47. GRECO concluded that no tangible results were reached on strengthening
transparency in the financing of political parties and election
campaigns (which has been discussed since 2010), with a few exceptions,
such as the adoption of legislation on campaign funding of presidential
candidates. A draft bill
Note has
been in preparation since 2014. For GRECO “the current situation
is not satisfactory; considerable progress is yet to be made in
respect of transparency of political financing in Turkey. Only one
recommendation out of nine has been fully implemented over the last
10 years. Resolute action was expected from the Turkish authorities towards
increased transparency of political financing, including in connection
with elections”. Concerning the prevention of corruption in respect
of MPs, judges and prosecutors GRECO regretted the absence of a
law on ethical conduct for members of parliament and the lack of
measures to ensure MPs’ integrity and stressed the need to enhance
the transparency of the legislative process.
48. The Assembly has stressed in many of its previous reports
the need to increase the independence and impartiality of the judiciary,
as recommended by the
Venice
Commission in its 2017 opinion, the Strasbourg Court rulings and
the recent decision of the Committee of Ministers pointing to “the
pervasive problems regarding the independence and impartiality of
the Turkish judiciary system”. In its March 2021 reports, GRECO
noted that over the years, “the fundamental structural changes have
weakened judicial independence and have also led the judiciary to
appear even less independent from the executive and political powers”:
“the Council of Judges and Prosecutors (CJP) is made up of members
appointed by the president of the republic and the GNAT and that
none are elected by judges and prosecutors themselves, runs counter
to European standards of an independent self-governing body of the
judiciary. The executive has kept a strong influence on a number
of key matters regarding the running of the judiciary.”
Note
6 Some concluding
remarks
49. This report is the third one,
in three years, depicting serious deficiencies in the functioning
of democratic institutions of Turkey. The conclusions reached in
January 2019 by our predecessors remain valid: “The [June 2018]
elections took place in an atmosphere of limited space for pluralistic,
democratic debate, unequal campaigning opportunities and media coverage,
and misuse of administrative resources. As a result, Turkey now
has an executive president with very extensive powers, a parliament
with insufficient powers as a counter-weight, whose majority comes
from the President’s party and its ally, and a judiciary whose independence
has been curtailed. Freedom of expression, assembly and association
is restricted, and independent media and civil society are under
severe pressure. The scope for opposition politicians to play a
meaningful role in public life, whether inside or outside parliament,
has become extremely limited.”
Note Four
years after their adoption, in light of the findings of several
Council of Europe monitoring mechanisms, we have to acknowledge
that the implementation of the 2017 constitutional amendments have
considerably weakened the separation of powers and checks and balances,
leading to undue interference of the executive branch in the judiciary
system with devastating effects on the functioning of democratic
institutions, both at national and local level.
50. We reiterate our strong conviction that the monitoring procedure
must be based on trust, co-operation and frank dialogue. This is
an essential component of our work, and we would like to thank the
Turkish delegation for its readiness to assist us in our work and
exchange with us and with the Monitoring Committee. At the same
time, this procedure should also end in genuine co-operation between
the Assembly and the Turkish authorities, aiming at achieving progress.
51. In this context, we appreciate each step taken and efforts
made to promote our standards. The drafting of the Human Rights
Action Plan is one of them and we hope that its implementation will
achieve tangible results. At the same time, however, the developments
that we are observing blatantly contradict these displayed intentions.
It is not acceptable that one third of the parliamentarians, overwhelmingly
from opposition parties, including the leaders of the two main opposition
parties in parliament, face losing their mandates, mostly due to
their statements. It does not allow the sound and proper functioning
of a parliament. The same observation applies to part of the judiciary
institutions, which have lost their independence and might be expected
to render politically motivated verdicts, which is extremely damaging
to the rule of law and democracy.
52. We trust that the current trends can be reversed. As a first
step, the democratic situation could dramatically improve provided
that the silencing of dissenting opinions ends. Investigation and
prosecution of journalists, NGOs, human rights defenders, academics,
students, and other critics of the government should no longer be
customary practice. Judicial harassment of opposition parliamentarians
(through the submission of numerous summaries of proceedings seeking
the lifting of their immunity or attempts to close their party) should
no longer be routine practice. These developments gravely endanger
parliamentary democracy, and even question the very role and function
of the opposition, if not of the parliament. How does it contribute
to the democratic functioning of the State if it is not perceived
as the place where different and critical opinions should be expressed
and articulated, or issues concerning the whole society, such as
women’s rights, should be debated in order to draft improved legislation
in line with international standards? The unilateral decision of
the president of the republic to withdraw from the Istanbul Convention
– which makes a difference in the lives of millions of women in
Turkey – was a sad and worrying illustration of this dangerous tendency.
53. We encourage the Turkish authorities to engage in an inclusive
consultations process and assess the functioning of their democratic
and judicial institutions in light of the democratic aspiration
of the Turkish people and taking into account its diversity. The
Turkish authorities should take advantage of the announced drafting of
a new constitution to seek the co-operation of the Council of Europe,
notably its Venice Commission, to ensure that the constitutional
framework provides again for the separation of power and the checks
and balances and that election legislation meets the required conditions
to ensure fair electoral processes and guarantee political pluralism.
54. As co-rapporteurs, we will remain committed to a meaningful
and constructive dialogue with the authorities and plan to assess
progress made in a comprehensive monitoring report to be presented
in the course of a future part-session. In the meantime, our Assembly
should continue to closely follow the developments in the country
concerning democracy, the rule of law and human rights, strengthen
its co-operation and provide all assistance needed.