The honouring of obligations and commitments by Türkiye
- Author(s):
- Parliamentary Assembly
- Origin
- Assembly
debate on 12 October 2022 (30th sitting) (see Doc. 15618 and Doc. 15618
Add., report of the Committee on the Honouring of Obligations
and Commitments by Member States of the Council of Europe (Monitoring
Committee), co-rapporteurs: Mr John Howell and Mr Boriss Cilevičs). Text adopted by the Assembly on
12 October 2022 (30th sitting).
1. In April 2017, the Parliamentary
Assembly decided to place Türkiye under the monitoring procedure. Since
then, it has closely followed the developments in the country in
a spirit of dialogue and co-operation with the Turkish authorities.
The Assembly has paid particular attention to the unaddressed structural
deficiencies in the functioning of Türkiye’s democratic institutions,
as identified by the Council of Europe’s monitoring mechanisms.
The Assembly has undertaken to make a mid-term review of the monitoring
procedure, focusing specifically on the implementation of the judgments
of the European Court of Human Rights (the Court), the judiciary
and challenges to the rule of law, as well as on the preparation
of the 2023 parliamentary and presidential elections.
2. Significant political developments have occurred since the
adoption of the 2017 report: constitutional amendments establishing
a presidential system were adopted in 2017 by 51.4% of the voters
and a new political system was put in place. In recent years, worrying
political developments have impacted the functioning of democratic
institutions. In particular, it has become challenging for members
of the political opposition to exercise their elected mandates in
a free and safe environment.
3. In reaction to these developments, the Assembly organised
three debates under urgent procedure: the first in January 2019
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?” (see
Resolution
2260 (2019)); the second in October 2020 on the “New
crackdown on political opposition and civil dissent in Turkey: urgent
need to safeguard Council of Europe standards” (see
Resolution 2347 (2020));
and the third in April 2021 on “The functioning of democratic institutions
in Turkey” (see
Resolution
2376 (2021)).
4. Issues of concern identified by the Assembly include the lack
of independence of the judiciary, the separation of powers and checks
and balances, restrictions on freedom of expression and of the media,
the overly broad interpretation of anti-terror legislation, the
implementation of judgments of the European Court of Human Rights,
restrictions on the protection of human rights and the infringement
of the fundamental rights of politicians and (former) members of
parliament from the opposition, as well as of lawyers, journalists, academics
and civil society activists.
5. The Assembly also remains vigilant about the safeguarding
of women’s rights and gender equality in Türkiye. In this context,
it regrets the decision of the President of the Republic to withdraw
from the Council of Europe Convention on Preventing and Combating
Violence against Women and Domestic Violence (CETS No. 210, the
Istanbul Convention) in March 2021 and sincerely hopes that a way
will be found for Türkiye to reintegrate the Istanbul Convention,
which has become the gold standard in the fight against violence
against women and domestic violence.
6. The Assembly acknowledges that Türkiye has faced and is still
facing various and serious terrorist threats in a region that is
unstable. However, the response to these threats must be in compliance
with standards of human rights, the rule of law and democracy.
7. Moreover, Russia’s aggression against Ukraine has added new
concerns for regional security and stability. In this respect, the
Assembly welcomes the mediation efforts undertaken by Türkiye with
a view to resolving the conflict and commends the role played by
Türkiye in facilitating the signature of the United Nations-brokered
Black Sea Grain Initiative of 22 July 2022.
8. Concerning the execution of the judgments of the European
Court of Human Rights:
8.1 While
acknowledging that Türkiye has implemented an important number of
European Court of Human Rights rulings, the Assembly recalls that
the implementation of all rulings of the Court is at the core of
the protection of fundamental rights in all member States; the findings
of the Court should be respected and not disregarded. In this context,
the Assembly calls on Türkiye to adopt a constructive approach and
abide by its obligations in a spirit of good faith and in accordance
with the principle of the rule of law.
8.1.1 In this respect,
the Assembly was appalled by the aggravated life sentence given
to philanthropist Osman Kavala on 25 April 2022 by the 13th High
Criminal Court, this notwithstanding that the European Court of
Human Rights had urged the Turkish authorities to release Mr Kavala
having found his pre-trial detention unlawful and pursuing an ulterior
purpose – namely to silence him and dissuade other human rights
defenders.
8.1.2 On 2 February 2022, the Committee of Ministers decided
to bring infringement proceedings against Türkiye over its failure
to implement this ruling of the European Court of Human Rights –
a rare procedure which had only been triggered once. While the Turkish authorities
argued that Mr Kavala had been released in February 2020, the Court
confirmed, on 11 July 2022, that Türkiye had failed to implement
the judgment by re-arresting Mr Kavala on charges based on facts
that were similar, or even identical, to those that the Court had
already examined in its judgment.
8.2 Reiterating its call on Türkiye to implement the Court’s
judgments, the Assembly will follow with close attention the activities
of the Committee of Ministers with respect to the follow-up of the infringement
proceedings under Article 46.4 of the European Convention on Human
Rights (ETS No. 5, the Convention). It calls on the support of member
States to the Committee of Ministers to ensure that decisions in
this respect will not undermine or jeopardise the effectiveness
of the system of protection of fundamental rights and the credibility
of the Court, as this could open the way to a dangerous and detrimental
trend for other Council of Europe member States.
8.3 In this respect, the Assembly welcomes the decision of
the Ministers’ Deputies of 22 September 2022 related to the implementation
of the Kavala judgment and its reference to the Assembly. It invites the
President of the Assembly and the Chair of the Committee of Ministers
to maintain close contacts and make full use of the means at their
respective disposal, if Türkiye’s failure to comply with its obligations
should persist.
8.4 Noting that domestic procedures are still ongoing, the
Assembly underscores that the solution to the Kavala case lies in
the hands of the Turkish judicial system. The latter has the capacity
to find a legal solution and show a more diligent interpretation
of the Court judgment, in compliance with its ruling and with international
law. In the meantime, the Assembly reiterates its call for the release
of Mr Kavala.
8.5 The Assembly also continues to follow the implementation
of the Court judgment of December 2020 relating to the detention
of opposition leader Selahattin Demirtaş (who has been in detention
since 2016) and its supervision by the Committee of Ministers. The
Court had also concluded that Article 18 of the Convention had been
violated and that Mr Demirtaş’ detention sought an ulterior purpose,
namely to stifle political debate. The Assembly reiterates its call
for Mr Demirtaş’ release. The Assembly also urges the authorities
to ensure that Mr Demirtaş’ individual application challenging his
current detention, which has been pending before the Constitutional
Court since 7 November 2019, be examined rapidly and in a manner
compatible with the spirit and conclusions of the Court’s judgment,
including in particular its reasoning under Article 18 of the Convention,
as recalled by the Ministers’ Deputies on 22 September 2022.
8.6 The Assembly has highlighted, in its previous resolutions,
the restrictive environment for civil society organisations. In
this respect, the Assembly is shocked by the conviction of Mr Kavala’s
co-defendants in the Gezi trial – all renowned persons, including
architects, intellectuals, prominent civil society activists, including
the Director of the Council of Europe School of Political Studies
– to 18 years of prison. The Assembly calls for their immediate
release and for their charges to be dropped.
9. Concerning the independence of the judiciary:
9.1 The Assembly recalls that the
European Commission for Democracy through Law (Venice Commission),
in its 2017 opinion, had concluded that the constitutional amendments
establishing a presidential system did not guarantee the separation
of powers and the independence of the judiciary, notably due to
the composition of the Council of Judges and Prosecutors.
9.2 Despite steps taken by the authorities – including the
adoption of an Action Plan on Human Rights in March 2021 and the
fourth judicial package in July 2021 – the authorities have not
been able to address and redress some of the systemic issues which
seriously undermine the functioning of the justice system:
9.2.1 The right to a fair trial (which represents 70% of the
violations found by the Constitutional Court in individual application
cases lodged since 2012) and, in particular, the right to a trial
within a reasonable time (the violation of which was found in 90%
of the rulings of the Constitutional Court in 2020 and 2021) should
be secured. Noting that the Constitutional Court has launched a “pilot
judgment procedure” and suspended these cases, the Assembly urges
the authorities to take all necessary legal steps requested by the
Constitutional Court to reduce the length of procedures.
9.2.2 In this context, the Assembly stresses the important role
of the Constitutional Court in promoting the protection of fundamental
freedoms, including the right to a fair trial, notably through the
mechanism of individual applications, and calls for the strengthening
of the Constitutional Court’s independence. The Assembly urges the
authorities to ensure more effective and systematic implementation
of its rulings by lower courts and welcomes the co-operation established
with the Council of Europe to find common solutions.
9.2.3 The Assembly also remains concerned about the situation
in prisons and calls on the authorities to implement the recommendations
of the European Committee for the Prevention of Torture and Inhuman
or Degrading Treatment or Punishment (CPT) and to authorise the publication
of all its reports. It welcomes the commitment by the authorities
to a zero-tolerance policy towards ill-treatment and torture, but
nonetheless urges them to take more resolute and credible action
to investigate thoroughly serious allegations of ill-treatment and
torture. It also urges the authorities to pay attention to the situation
of seriously ill prisoners, including former member of parliament
Aysel Tuğluk.
10. Concerning the upcoming presidential and parliamentary elections
scheduled in 2023:
10.1 The Assembly
values the commitment of the Turkish people to democratic processes
through their high level of participation in elections and a vibrant
political scene.
10.2 The Assembly however remains very concerned by the ongoing
crackdown on members of the political opposition, including the
procedures seeking to lift parliamentary immunity (overwhelmingly
of opposition parties), and more generally acts of violence suffered
by opposition politicians which have put political pluralism and
the functioning of democratic institutions at risk. The case against
Canan Kaftancıoğlu, Head of the Republican People’s Party (CHP)
provincial branch of Istanbul, convicted to nearly five years in
prison (and released under supervision), based on old tweets and
for, inter alia, allegedly
“insulting the President”, and the ban on her participating in political
life are further examples of this restrictive and punitive environment
in which opposition members are operating.
10.3 The Assembly will closely follow the ongoing procedure
related to the attempt to close the Peoples’ Democratic Party (HDP)
– which is the third largest party in the parliament – and to ban
451 HDP politicians from political life. The Assembly recalls that
the “dissolution of political parties is a drastic measure which
should only occur as a last resort”. As already stressed in its
Resolution 2376 (2021), “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 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”.
10.4 The Assembly notes that the Turkish Parliament adopted,
on 25 April 2022, amendments to the electoral law, regrettably without
extensive consultations or debates and failing to reach a political consensus,
as highlighted by the Venice Commission and the Office for Democratic
Institutions and Human Rights of the Organization for Security and
Co-operation in Europe (OSCE/ODIHR) in their joint opinion (CDL-AD(2022)016)
adopted in June 2022.
10.4.1 The Assembly welcomes the lowering
of the electoral threshold from 10% to 7% – a long-lasting request
from the Assembly – as well as new arrangements facilitating the participation
of visually impaired persons in elections.
10.4.2 However, other provisions of this law are problematic:
the Venice Commission raised concerns, inter
alia, about the criteria required from political parties
to qualify to stand for elections, which favour “larger and well-established
political parties”, and about the new composition of the district
and provincial electoral boards: their judicial members will no
longer be the three most senior judges in the province but determined
“by drawing lots” from eligible judges. For the Venice Commission,
this “potentially makes appointment more susceptible to political pressure
and manipulation” in light of the limited safeguards in the judicial
appointment system to ensure the independence of judges. This new
regulation is also a major source of concern for the opposition.
10.4.3 Changes were also made in the legal provisions concerning
the misuse of office in election campaigns; the Venice Commission
recommended that “the President does not stand outside the party
system but, rather, is part of it, there is no reason why s/he should
not be subject to the restrictions in the same ways as other high
public officials to prevent conflicts of interest and misuse of
administrative resources”.
10.4.4 In light of the recommendations made by the Venice Commission,
the Assembly urges the Turkish authorities to proceed to the proposed
changes or, at the least, to implement the legislation in a spirit
that will be conducive to a level playing field. The electoral legal
framework should ensure equal opportunities for all political players,
and this will constitute an important criterion to assess the fairness
of the upcoming elections.
10.5 Another essential component of political debates and elections
campaigns is freedom of expression. However, there are serious concerns
about ongoing restrictions and legal proceedings hampering the exercise
of this right. Recalling its previous requests and the Venice Commission’s
2016 opinion, the Assembly calls on Türkiye to, notably, amend Article
301 (Degrading Turkish Nation, State of Turkish Republic, the Organs
and Institutions of the State) and Article 125 (Insulting public
officials), as well as to abrogate Article 299 (Insulting the President
of the Republic) in accordance with emerging European consensus
towards decriminalisation of defamation of the head of State, and
taking into account the judgment of the Court in the Vedat Şorli v. Turkey case and the
Court’s case law.
10.6 In particular the overly broad interpretation of the anti-terrorism
law has undermined freedom of expression and fundamental rights.
The Assembly reiterates its concerns that such interpretation of
the law has been used as a tool to stifle political debate and the
activities of civil society. Drawing inspiration from the amendment
of Article 7 of the Anti-Terrorism Law in October 2019, the Assembly
encourages the authorities to amend further articles of the Anti-Terrorism
Law and the Criminal Code which have led to violations of the right
to freedom of expression, to clarify that the exercise of the right
to freedom of expression does not constitute an offence, in the
same way that Article 7 now states that expressions of thought that
do not exceed the boundaries of reporting or for the purpose of
criticism shall not constitute criminal activity.
10.7 Media play an important role in election campaigns. Freedom
of media, however, remains a challenge. The Assembly notes that
long-standing issues remain problematic, such as attacks against journalists,
the control of media by the State and the use or withholding of
advertising funds as a means to marginalise and criminalise media
critical of the regime. The Assembly is concerned by the draft amendment
of Article 217/A to the Turkish Criminal Code that would criminalise
the dissemination of “false or misleading information” and lead
to prison sentences. For the Venice Commission, such an amendment
would amount to an interference with the freedom of expression which
“would be neither ‘necessary in a democratic society’ nor proportionate
to the legitimate aims of prevention of disorder and protection
of national security, of health and of rights of others”. Beside
its potential detrimental impact, namely a chilling effect and increased
self-censorship, this amendment could cause irreparable harm to the
exercise of freedom of speech before elections. The Assembly is
therefore very concerned about the possible consequences of this
legislation in view of the presidential and parliamentary elections
planned in 2023 and urges the Turkish authorities, in light of the
Venice Commission’s urgent opinion of October 2022, not to enact
this draft amendment to the Criminal Code.
10.8 The Assembly stresses that transparency and accountability
are key for democracies and that transparency of party funding is
important to ensure fair electoral competition. The Assembly regrets
the lack of progress concerning the implementation of the recommendations
of the Group of States against Corruption (GRECO) and urges the
authorities to take action to increase transparency of party funding, to
adopt a law on ethical conduct for members of parliament, to ensure
transparency of the legislative process and to adopt measures to
ensure the integrity of parliamentary members. The Assembly also recalls
GRECO’s previous concerns about the weakened judicial independence,
which impacts on the fight against corruption.
11. The Assembly notes that the change of the political system
adopted in 2017 – while being a sovereign right of any member State
– has seriously weakened the democratic institutions in Türkiye
and made the system of checks and balances dysfunctional and deficient.
The Assembly expresses the urgent need for reforms to restore the
full independence of the judiciary and effective checks and balances.
The Turkish authorities need to ensure that all conditions will
be met to guarantee free and fair elections, including the ability of
the opposition to operate and journalists to work in an independent
way. The Assembly remains at the disposal of the authorities to
pursue a constructive dialogue. It resolves, in the framework of
the monitoring procedure for Türkiye, to continue to follow the
developments in the country concerning democracy, the rule of law
and human rights.
