The functioning of democratic institutions in Turkey
- Author(s):
- Parliamentary Assembly
- Origin
- Assembly
debate on 22 April 2021 (14th sitting) (see Doc. 15272, report of the Committee on the Honouring of Obligations
and Commitments by Member States of the Council of Europe (Monitoring
Committee), co-rapporteurs: Mr Thomas Hammarberg and Mr John Howell). Text adopted by the Assembly on
22 April 2021 (14th sitting).
1. Since Turkey was placed under the
parliamentary monitoring procedure in April 2017, the Parliamentary Assembly
has been closely following the developments in this country in a
spirit of dialogue and co-operation with the authorities. Regrettably,
a number of issues of concern have remained unaddressed by the Turkish authorities,
despite the recommendations based on the findings of the Council
of Europe monitoring mechanisms. Notably, the European Commission
for Democracy through Law (Venice Commission) had identified structural
deficiencies in the constitutional amendments that established the
presidential system in 2017. The most serious issues of concern
include the lack of independence of the judiciary, the lack of sufficient safeguards
for the separation of powers and checks and balances, restrictions
on freedom of expression and the media, the abusive interpretation
of the anti-terror legislation, the non-execution of judgments of
the European Court of Human Rights (the Court), the restrictions
applied to the protection of human rights and women’s rights and
the infringement of the fundamental rights of politicians and (former)
members of parliament from the opposition, lawyers, journalists,
academics and civil society activists.
2. In recent years, the Assembly has been concerned about the
constant deterioration of the rights of opposition politicians and
their ability to exercise their elected mandates, thus seriously
undermining the functioning of democratic institutions in Turkey.
The Assembly resorted to organising three debates under urgent procedure
entitled “The worsening situation of opposition politicians in Turkey:
what can be done to protect their fundamental rights in a Council
of Europe member State?” (
Resolution
2260 (2019) of January 2019), “New crackdown on political
opposition and civil dissent in Turkey: urgent need to safeguard
Council of Europe standards” (
Resolution
2347 (2020) of October 2020) and the present debate on
the functioning of democratic institutions in Turkey. This debate
was triggered by worrying developments in recent months, notably
the lifting of parliamentary immunity, the attempt to dissolve the
Peoples’ Democratic Party (HDP) and the decision to withdraw from
the Council of Europe Convention on Preventing and Combating Violence against
Women and Domestic Violence (CETS No. 210, the Istanbul Convention)
announced by the President of Turkey.
3. On 20 March 2021, the President of the Republic signed a presidential
decision withdrawing from the Istanbul Convention. This convention
was opened for signature during the Turkish Presidency of the Committee
of Ministers in Istanbul ten years ago. The Turkish Grand National
Assembly, by a unanimous vote, was the first parliament in Europe
to ratify it in 2012, thus playing a pioneering and leading role
in promoting this convention across Europe. The convention has become
the gold standard in the fight against violence against women and
domestic violence. In Turkey, the ratification of the Istanbul Convention
was a push factor leading to the adoption of Law No. 6284 on Protection
of Family and Prevention of Violence Against Women in 2012 by the
Turkish Parliament.
4. The Assembly deeply regrets that this presidential decision
was taken without any parliamentary debate and on account of misleading
narratives which run counter to the very objective of the Istanbul
Convention. It underlines that there is an urgent need to hold a
discussion on the Istanbul Convention that is based on facts – not
on politically motivated misconceptions and myths. The Assembly
stresses that parliaments are the forums in which societal and human
rights issues must be debated in Council of Europe member States.
The Istanbul Convention has therefore ensured that parliaments are
directly involved in the monitoring of the convention, as well as
its implementation. In respect to Turkey, the Assembly notes that
all major opposition parties, including the Republican People’s
Party (CHP), the aforementioned HDP and the Good Party (IYI), in addition
to women’s organisations and individual citizens have expressed
their attachment to seeing their country remain part of the Istanbul
Convention by seizing the State Council to annul the presidential
decision of 20 March 2021.
5. Without prejudice to the decision of the State Council, the
Assembly encourages the Turkish Grand National Assembly to engage
in a meaningful debate in parliament, liaise with civil society
organisations active in this field, remain committed to combating
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 gender equality, as required
by the positive obligations of member States under the European Convention
on Human Rights (ETS No. 5, the Convention). In this respect it
welcomes the creation, on 9 March 2021, of an ad hoc parliamentary
committee on researching the causes of violence against women to determine
the necessary policies.
6. The Assembly underlines that, even though 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.
The withdrawal also sends a message to the international community
about a deprioritisation of the fight against violence against women. The
Assembly sincerely hopes that a way will be found for Turkey to
reintegrate the Istanbul Convention.
7. The Assembly recalls that violence against women is widespread
in all societies and cannot be justified on any grounds. It concerns
all segments of society, beyond political and societal lines. Recalling
its
Resolution 2289 (2019) “The
Istanbul Convention on violence against women: achievements and
challenges”, the Assembly, for its part, reaffirms its commitment
to promoting the ratification and implementation of the Istanbul Convention
in Europe and beyond, notably through its Parliamentary Network
Women Free from Violence, and reiterates its full support for civil
society organisations promoting and protecting women’s rights. For
the Assembly, withdrawing from a human rights based convention ratified
(unanimously) by the parliament constitutes a step backwards for
the country. At the European level, such a measure weakens the multilateral co-operation
promoted by the 47 Council of Europe member States and prevents
the country in question from benefitting from the added value of
an independent monitoring mechanism (the Group of Experts on Action against
Violence against Women and Domestic Violence – GREVIO).
8. The Assembly notes with concern that the unilateral decision
by the President of Turkey to withdraw from an international treaty
without any consultation with parliament or society has triggered
speculative debates about possible withdrawal from other international
treaties, including the European Convention on Human Rights. This
could affect the country’s legal stability and predictability. While
the ratification and denunciation of treaties are a matter of national
sovereignty, the Assembly however notes that the unprecedented withdrawal from
a major Council of Europe convention has raised many questions and
concerns about its democratic processes. In light of these developments,
a reflection should be undertaken about standards that should govern
the ratification of and withdrawal from international treaties in
democratic societies, beyond the minimal legal and constitutional
conditions. The Assembly therefore asks the Venice Commission to
prepare a comparative study and possible guidelines about the modalities
that should govern the ratification and withdrawal from Council
of Europe conventions.
9. Another adverse development relates to the weak framework
for the protection of parliamentary immunity in Turkey, already
highlighted in previous Assembly resolutions. The Assembly notes
with concern that one third of the parliamentarians in Turkey are
currently targeted by legal proceedings and could see their immunity
lifted. The overwhelming majority of these procedures concern opposition
parliamentarians, and parliamentarians from the HDP Party are disproportionally
targeted – they account for 75% of the proceedings, most of which
are based on terrorism-related charges; three members of the HDP
lost their mandates in 2020 and 2021 following final convictions
for terrorism, while nine HDP parliamentarians currently face aggravated life
sentences for their alleged organisation of the “Kobane protests”
in October 2014.
10. On a positive note, the Assembly welcomes the return to the
parliament of CHP parliamentarian Enis Berberoğlu following two
rulings of the Constitutional Court, which found that his right
to be elected and engage in political activities had been violated.
The Assembly recalls that, in a country governed by the rule of
law, lower courts must abide by rulings of the Constitutional Court.
It deplores, however, the new proceedings which were launched in
the meantime to again strip Mr Berberoğlu of immunity.
11. At the same time, the Assembly is appalled by the sentencing
of HDP parliamentarian Ömer Faruk Gergerlioğlu to two and a half
years in prison for “making propaganda for a terrorist organisation”
after re-tweeting a news article – which was not subject to legal
proceedings – in August 2016. The conviction was upheld by the Turkish
Court of Cassation in February 2021 and, contrary to customary practice,
the execution of the sentence was not suspended until the end of
Mr Gergerlioğlu’s mandate. As a result, Mr Gergerlioğlu lost his
mandate after the sentence was read out in parliament on 17 March
2021 and he was detained on 27 March 2021.
12. The Assembly regrets that the Constitutional Court did not
have the possibility to review the pending individual application
lodged by Mr Gergerlioğlu before the execution of the sentence became
effective, thus resulting in a loss of parliamentary mandate with
immediate effect. The Assembly asks the Turkish authorities to ensure
harmonised judiciary practice pertaining to the execution of convictions
of members of parliament, with due respect to their parliamentary
immunity, and to ensure a speedy examination of individual applications by
the Constitutional Court which, in the past, has been instrumental
in redressing the violation of rights of parliamentarians and allowing
their return to parliament.
13. The Assembly is concerned that opposition parliamentarians
seem to routinely face being stripped of immunity on the basis of
their statements or publications. The Assembly notes with great
concern that one third of parliamentarians, including the leaders
of the two main opposition parties in parliament, are subject to
such procedures. This is highly problematic and prejudices the sound
functioning of a parliament. In addition, it has a chilling effect
which discourages the dynamic debate essential for a properly functioning
democracy. The Assembly therefore urges the Turkish authorities
to put an end to the judicial harassment of parliamentarians and
refrain from submitting numerous summaries of proceedings seeking
the undue lifting of their immunity, which gravely impedes the exercise
of their political mandate.
14. The Assembly cannot but reiterate its concerns about restrictions
to freedom of expression, which impede the exercise of political
mandates. It regrets that no progress was made regarding the interpretation
of the anti-terrorism legislation, which is not in line with the
case law of the European Court of Human Rights. As a result, a high
number of convictions are based on an overly broad interpretation
of this legislation or of controversial provisions of the Criminal
Code. The Assembly urges the Turkish authorities to address the “pervasive
problems regarding the independence and impartiality” of the judiciary
system noted by the Committee of Ministers in March 2021 and prevent
politically motivated rulings that contradict Council of Europe
standards.
15. The Assembly underscores the primordial role played by political
parties in a democratic regime. It is therefore extremely concerned
about the steps taken by the Court of Cassation, at the request
of the Nationalist Movement Party (MHP), to dissolve the second
largest opposition party in the Turkish Parliament and to ban 687
HDP members for their alleged ties to the Kurdistan Workers’ Party
(PKK). The Assembly notes that the indictment of 17 March 2021 was
referred back to the Court of Cassation by the Constitutional Court
on 31 March 2021 due to serious deficiencies.
16. The Assembly recalls that it had opposed the dissolution of
the ruling party (the Justice and Development Party – AK Party)
in its
Resolution 1622
(2008) “Functioning of democratic institutions in Turkey:
recent developments”, in which it stressed that “the dissolution
of political parties should be regarded as an exceptional measure
to be applied only in cases where the party concerned uses violence
or threatens civil peace and the democratic constitutional order
of the country”.
17. The Assembly also recalls 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 on Human Rights. Dissolution of political parties is
a drastic measure which should only occur as a last resort in strictly
defined situations. The Assembly remains confident that the Constitutional
Court will be guided by the strict regulations governing the dissolution
of political parties in Turkey, the case law of the European Court
of Human Rights – in which the exceptions set out in Article 11
are strictly construed, with a limited margin of appreciation for
contracting States – and by the “Guidelines on prohibition and dissolution
of political parties and analogous measures” adopted in 1999 by
the Venice Commission.
18. Whatever the outcome of this pending procedure, the Assembly
underscores that the initiation of legal proceedings against the
second largest opposition party, combined with continuous harassment
and arrests of its members, elected representatives and leaders,
is in itself an alarming signal which reflects the difficulties faced
by the opposition. This seriously undermines the functioning of
democratic institutions and political pluralism at national and
local levels. In this respect, the Assembly regrets the lack of
any progress in the reinstatement of the 48 mayors (out of 59) from
the HDP elected in March 2019, who were dismissed in contradiction
with Council of Europe standards, or in revising the legislation
so as to ensure its compliance with the European Charter of Local
Self-Government (ETS No. 122).
19. The Assembly recalls that the proper functioning of democratic
institutions in a representative democracy requires fair election
procedures, a sound legal basis and a safe environment for the functioning
of political parties, the safeguarding of the freedoms of expression
and of the media that allow for the expression of views by the opposition
and the democratic transition of power. The Assembly notes that
reforms of the Law on political parties and of the electoral legislation
are envisaged. It encourages the Turkish authorities to seize this
opportunity to address the long-standing issues of concern raised
by the Assembly and the Venice Commission in previous years:
19.1 concerning the electoral law,
the Assembly welcomes the intention expressed by the authorities to
lower the election threshold (presently 10%), which is the highest
in Europe. This has been a long-lasting request from the Assembly.
The Assembly asks the Turkish authorities, when revising the electoral
legislation, to take into account the need to ensure fair electoral
processes, conducted in an environment conducive to freedom of expression
and freedom of the media;
19.2 at the same time, the Assembly recalls that a genuinely
pluralistic democracy requires that parties across the political
spectrum are able to operate and to reflect the opinions of voters
in all their diversity, including minorities;
19.3 in order to increase good governance and a level playing
field in politics, the Assembly encourages the Turkish authorities,
in line with the recommendations contained in the two compliance reports
published by the Group of States against Corruption (GRECO) in March
2021 (third and fourth rounds of evaluation), to improve the legal
and regulatory framework and, in particular, to:
19.3.1 take
resolute action to strengthen transparency in the financing of political
parties and election campaigns, where considerable progress is yet
to be made;
19.3.2 improve the prevention of corruption in respect of members
of parliament, judges and prosecutors, in particular by adopting
a law on ethical conduct for members of parliament, thus enhancing
the transparency of the legislative process;
19.3.3 introduce structural changes which would ensure judicial
independence, including the revision of the composition of the Council
of Judges and Prosecutors, which does not comply with European standards
with regard to an independent self-governing body of the judiciary
and allows the executive to have a strong influence on a number
of key matters regarding the running of the judiciary.
20. The Assembly recalls the concerns already highlighted with
respect to freedom of expression and the media and to the situation
of journalists. The Assembly remains concerned about the high number
of journalists who remain in prison, are prosecuted for working
as journalists or resort to self-censorship. In this context, the Assembly
draws attention to some meaningful developments:
20.1 the Assembly welcomes the decision
of the Constitutional Court of 8 April 2021 repealing an article
in a statutory decree that set the basis for the closure of media
outlets on the ground that they posed “a threat to national security”
and reversing a provision that paved the way for the seizure of
the properties of those media outlets that were to be shut down;
20.2 the Assembly welcomes two Chamber rulings (not yet final)
of the European Court of Human Rights of 13 April 2021 related to
the cases Ahmet Hüsrev Altan v. Turkey and Murat Aksoy v. Turkey. The cases
concerned two journalists arrested for their alleged preparation
of the failed coup as a result of their publications and their alleged
membership of the Gülen movement. While Murat Aksoy was released
from pre-trial detention in 2017, the renowned journalist and novelist,
Ahmet Altan, has remained in jail since 2016. The Court found, notably,
a violation of both plaintiffs’ rights to freedom of expression,
liberty and security due to lack of evidence, lack of reasonable
suspicion and lack of access to their files. The Assembly welcomes
the swift decision taken by the Court of Cassation to release Ahmet
Altan on the day following delivery of the judgment.
21. The Assembly expects the Turkish authorities to undertake
the necessary reforms to address the above-mentioned concerns. It
takes good note of the launch of the Human Rights Action Plan on
2 March 2021, prepared in consultation with the Council of Europe
and other relevant international bodies. This action plan aims notably
at strengthening the right to a fair trial; protecting and strengthening
freedom of expression, association and religion; and promoting legal
predictability and transparency. The Assembly encourages the authorities
to fine-tune the scope of this action plan so as to address pressing
issues relating to human rights and the rule of law, including the
strengthening of the independence of the judiciary, revision of
the anti-terror law, which is too widely interpreted, and the protection
of human rights defenders, in co-operation with the Council of Europe.
The Assembly also invites the authorities to ensure that the action
plan will be accomplished by a detailed road map indicating specific
actions to be taken in order to achieve its goals.
22. In the meantime, the Assembly expects the Turkish authorities
to take concrete and meaningful steps and thus abide by its obligations
arising from their Council of Europe membership. In particular,
the Assembly urges the immediate release of former HDP co-chair
Selahattin Demirtaş and philanthropist Osman Kavala, in application
of the rulings of the European Court of Human Rights of 2020 and
subsequent decisions of the Committee of Ministers, which is supervising
the implementation of these rulings. The Assembly recalls that the
Court ruled that there had been, in both cases, a violation of Article
18 of the Convention and that the convictions were pursuing an ulterior
purpose: Mr Demirtaş’s detention sought to stifle pluralism and
limit freedom of political debate, while Mr Kavala’s detention aimed
at silencing him and deterring other human rights defenders.
23. The Assembly also insists that civil society activists need
to be able to operate in a safe and free environment. It remains
concerned by ongoing procedures targeting human rights activists
and calls upon the authorities to:
23.1 drop the charges against the members of the “Büyükada
trial”, Öztürk Türkdoğan, Chair of the Human Rights Association
and, in general, ensure that human rights activists, including lesbian,
gay, bisexual, transgender (LGBT) activists and women’s activists,
can exercise their freedom of expression and assembly without undue
judicial pressure;
23.2 refrain from incriminating, prosecuting and arresting
peaceful demonstrators, students and LGBT people, in particular
those protesting against the appointment of the rector of Boğaziçi
University or the withdrawal from the Istanbul Convention;
23.3 repeal or revise, in line with the relevant recommendations
of the Venice Commission, the provisions contained in the 2020 Law
on the Prevention of Financing of the Proliferation of Weapons of Mass
Destruction, which provides for the possible temporary suspension
of leaders of non-governmental organisations (NGOs) facing terror-related
investigations and their replacement by government-appointed trustees,
which further restrict NGO activities and their freedom of association
in the name of counter-terrorism, as highlighted by the Council
of Europe Commissioner for Human Rights.
24. The Assembly strongly reiterates its call on the Turkish authorities
to put an end to laws and practices that contravene democratic standards,
to revise its legislation and constitutional framework in order
to ensure the separation of powers, to restore freedom of speech
and media freedom, to restrict the interpretation of its anti-terror
legislation and to implement the judgments of the European Court
of Human Rights.
25. The Assembly strongly encourages the Turkish authorities to
make use of Council of Europe expertise in order to prepare and
implement the reforms needed to restore the independence of the
judiciary and reinstate proper checks and balances, which are an
essential condition in a democratic society governed by the rule
of law. The Assembly expects the Turkish authorities to live up
to the democratic aspirations of a vibrant civil and political society,
genuinely committed to democracy, to be able to act and speak out
freely and safely.
26. The Assembly also resolves, in the framework of the monitoring
procedure for Turkey, to follow the developments in the country
concerning democracy, rule of law and human rights. It urges the
Turkish authorities to engage in a meaningful and constructive dialogue
and to assess the progress made in a comprehensive monitoring report
to be presented in the course of a future part-session of the Assembly.
