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DOWNLOAD 2011 EU PROGRESS REPORT ON TURKEY
05 October 2011
*updated on October 12, 2011
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Read the important chapters online
Available chapters: 23, 24, 31
(This section will be frequently updated)
Chapter 23: Judiciary and fundamental rights[wpcol_1half]
There has been progress in the reform of the judiciary, notably with efforts to implement the 2010 constitutional amendments.
As regards independence, a Law on the High Council of Judges and Prosecutors was adopted in December 2010. This law, together with the constitutional amendments approved by referendum on 12 September 2010, established a new composition of the High Council46 that is more pluralistic and representative of the judiciary as a whole. Ministerial influence has been reduced. The Inspection Board, previously under the Ministry of Justice, has now been transferred to the High Council. Concerning effective remedies, appeals to judicial bodies against decisions concerning dismissal from the profession are now permitted.
However, as regards elections of members of the High Council, the system imposed by the Constitutional Court leaves no room for election of minority candidates, because candidates who are elected by the majority of the voters could take all the seats. Nomination of the four non-judicial members of the High Council is left to the discretion of the President of the Republic, whereas the Grand National Assembly is not involved. The current provisions do not ensure permanent representation of members of the Bar in the High Council. The Minister can veto the launching of disciplinary investigations against judges and prosecutors by the High Council.
With regard to impartiality, a Law on the Constitutional Court was adopted in March 2011. This law, together with the constitutional amendments approved by referendum on 12 September 2010, enlarged the normal membership of the Court. This has reduced the relative weight of high courts’ representatives and made the Constitutional Court more representative of the legal community and society at large.
The powers of the Constitutional Court have been considerably extended by introducing the individual application procedure. Anyone who claims that any of his or her fundamental rights and freedoms guaranteed by the Constitution has been violated by the public authorities can apply to the Constitutional Court, provided he or she has exhausted all ordinary legal remedies.
However, the Constitutional Court is insufficiently representative of the Turkish legal community as a whole and still over-dominated by the high courts. The influence of the Grand National Assembly over the composition of the Constitutional Court is also inadequate, in terms of both the number of members it elects and the choice of eligible candidates. As regards elections of members of the High Council, the system imposed by the Constitutional Court itself leaves no room for election of minority candidates, because candidates who are elected by the majority of the voters could take all the seats.
Prosecutors do not have their offices in parts of courthouses separate from that occupied by the judges. They are not required to enter or leave the courtroom by a different door than the one used by judges. Finally, they do not sit in courtrooms on the same level as lawyers. This continues to cloud the perception of the impartiality of judges.
With regard to efficiency, the Laws on the Court of Cassation and the Council of State were amended in order to tackle the increasing backlog of cases. More chambers have been established, working methods modified and a large number of judges and prosecutors appointed. Legislation was adopted in March 2011 to reduce the workload of first-instance courts.
However, neither an overall common strategic framework nor reliable indicators and benchmarks have been established by the Ministry of Justice and the High Council for Judges and Prosecutors to assess the performance of courts and of the judicial system as a whole. The Ministry and the High Council have yet to develop benchmarks to monitor and assess the duration of court proceedings and improve the efficiency and effectiveness of the judicial system, in order to address the backlog of pending cases and, in particular, the large backlog of pending serious criminal cases.
The current fragmentation of the Turkish courts, which each have a separate registry and are not connected with each other even when they are located in the same courthouse, prevents efficient use of available resources. The regional courts of appeal have not been established yet. By law, they should have been in operation by June 2007. The number of vacancies for judges and prosecutors equals roughly a third of the current judicial staff.
Pre-trial detention is not limited to circumstances where it is strictly necessary in the public interest and is not sufficiently justified. In some terror-related cases, defendants and their lawyers have not been permitted access to incriminating evidence early in the proceedings. Frequent use of arrest instead of judicial supervision, leaks of information, evidence or statements, limited access to files, failure to give detailed grounds for detention decisions and revision of such decisions raised concerns. No authoritative information has been received from either the prosecution offices or the courts on all these issues of wide public interest.
There is a need to improve the work of the police and the gendarmerie together with the working relationship between the police, gendarmerie and judiciary in order to address concerns raised during investigations in some high-profile cases. A Regulation on the judicial police, adopted jointly by the Ministries of the Interior and Justice in 2005, has yet to be implemented. As a result, prosecutors rely on judicial police units operating under the hierarchical control of the Ministry of the Interior.
A large number of measures in the judicial reform strategy adopted by the government in August 2009 have been implemented by the constitutional amendments and ensuing legislation. There is a need to review the existing strategy in a transparent and inclusive fashion, so that the revised strategy will be owned by the Turkish legal community and the wider public.
Limited progress can be reported on anti-corruption.
In line with the 2010-2014 Strategy and Action Plan47 , an Executive Committee for Increasing Transparency and Fighting Corruption48 has coordinated working groups preparing proposals on corruption-related issues. The Committee of Ministers on anti-corruption policy approved all the proposals. Turkey has implemented 19 of the 21 recommendations made in the 2005 evaluation reports by the Group of States against Corruption (GRECO). The Law on the Turkish Court of Accounts (TCA) adopted in December 2010 should significantly strengthen the transparency and accountability of public administration.
However, there was no increase in the strength or independence of institutions involved in the fight against corruption, which are not sufficiently staffed. Immunities of Members of Parliament or of senior public officials in corruption-related cases have yet to be limited and objective criteria established setting the conditions under which their immunity could be lifted. Two major sets of GRECO recommendations on “Incrimination” and “Transparency of Party Funding” remain to be implemented. There has been no progress concerning the transparency of financing political parties. Auditing of political parties remains weak and there is no legal framework for auditing election campaigns or the financing of individual candidates. No steps have been taken to build up a track record of investigations, indictments or convictions related to corruption cases.
As regards fundamental rights, there has been progress in some areas, whereas in others a number of concerns were raised, in particular as regards freedom of expression.
Human rights institutions in line with the UN Paris principles have yet to be established. The draft Law establishing the Turkish National Human Rights Institution (NHRI) submitted to parliament in February 2010 has not yet been revised in line with these principles. This is relevant in particular to the independence and functional autonomy of this new institution. It is important to involve civil society organisations in this process. As regardsprohibition of torture and inhumane or degrading treatment or punishment, the ratification of the OPCAT is a significant step. The positive trend on prevention of torture and ill-treatment continued. However, disproportionate use of force by law enforcement officials continued to be a concern, particularly outside official places of detention.
The growth of the prison population is leading to serious overcrowding, which is hampering attempts to improve detention conditions. A complete overhaul of the complaints system in prisons is needed. An urgent review of the system for dealing with juveniles is needed to minimise the number in prison and the time they spend there and make sure that detention conditions guarantee the rights of the child.[/wpcol_1half] [wpcol_1half_end]
With respect to access to justice, the legal aid provided is of inadequate scope and quality. Budgetary provisions are inadequate. There is no effective monitoring mechanism that would remedy long-standing problems.
Regarding freedom of expression, open debate, including on issues perceived as sensitive, continued. However, in practice, freedom of expression is undermined by the high number of legal cases and investigations against journalists, writers, academics and human rights defenders and undue pressure on the media, which raises serious concerns. The present legislation does not sufficiently guarantee freedom of expression in line with the ECHR and the case law of ECtHR, and permits restrictive interpretation by the judiciary. Frequent website bans are another cause for serious concern. Turkey’s legal and judicial practices, legislation, criminal procedures and political responses are obstacles to the free exchange of information and ideas.
As regards freedom of assembly and freedom of association, including the right to form political parties and establish trade unions, there has been progress on the ground. Turkey’s legislation on freedom of association is broadly in line with EU standards. However, demonstrations in the south-east of the country and in other provinces related to the Kurdish issue, students’ rights, the activities of the higher education supervisory board (YÖK) and trade union rights were marred by disproportionate use of force. Disproportionate controls and restrictive interpretation of legislation on associations remain. There were no developments as regards amendment of the legislation on the closure of political parties. Restrictive provisions in the current legal framework on trade unions, which are not in line with EU standards and ILO Conventions, remain.
There has been limited progress on freedom of thought, conscience and religion. Freedom of worship continues to be generally respected. The dialogue with the Alevis and with the non- Muslim religious communities continued. However, members of minority religions continued to be subject to threats from extremists. A legal framework in line with the ECHR has yet to be established, so that all non-Muslim religious communities and the Alevi community can function without undue constraints.
With regard to women’s rights and gender equality, protecting women’s rights, promoting gender equality and combating violence against women remain major challenges. The legal framework guaranteeing women’s rights and gender equality is broadly in place. However, further substantial efforts are needed to turn the legal framework into political, social and economic reality. Legislation needs to be implemented consistently across the country. Honour killings, early and forced marriages and domestic violence against women remain serious problems. Further training and awareness-raising on women’s rights and gender equality are needed, particularly for the police.
As regards children’s rights, efforts need to be stepped up in all areas, including education, combating child labour, health, administrative capacity and coordination. In general, more preventive and rehabilitation measures need to be taken for juveniles. Moreover, there is a need to establish more juvenile courts in line with the legislation in force and to minimise detention of children which, in cases where it is strictly necessary, should take place in appropriate conditions.
With regard to the right to education, the proportion of children in pre-school education increased in 2010-2011 compared to the previous school year. The number of teachers also increased. The primary school enrolment rates (grades 1-8) increased and the gender gap has virtually closed. In secondary education (grades 9-12), the enrolment rates increased for boys from 67.5% to 72.3% and for girls from 62.2 % to 66.1 %, widening thus slightly the gender gap. Turkey signed the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse. However, school drop-outs were a concern, especially among seasonal migrant workers’ families and Roma children. Regional disparities remained wide for both primary and secondary school enrolment.
As regards treatment of socially vulnerable persons and/or persons with disabilities and the principle of non-discrimination, a strategy paper on accessibility and the related national action plan were adopted. However, constitutional changes allowing positive discrimination in favour of the disabled were not turned into specific measures. A national mechanism for monitoring implementation of the UN Convention on the rights of disabled persons and its optional protocol has still not been established. Lack of data and research on persons with disabilities and the mentally ill remain a barrier against informed policy-making. Provisions of the Turkish Criminal Code on ‘public exhibitionism’ and ‘offences against public morality’ are sometimes used to discriminate against LGBT people.
On the right to property, legislation amending the 2008 Law on foundations was adopted in August 2011. This is the fourth attempt of the Turkish authorities since 2002 to restore the property rights of non-Muslim communities. The new legislation provides that non-Muslim community foundations can register in the Land Registry, under their names, immovable property entered in their 1936 declarations for which either the owner entry was left blank, or which are registered in the name of the Treasury, the Directorate-General for Foundations, municipalities and special provincial administrations, or cemeteries and fountains registered in the name of public institutions. Interested parties will have to apply for the return of properties within a twelve-month period from the entry into force of the new legislation. Finally, the market value of foundation properties currently registered with third parties will be paid. This covers properties seized and sold to third parties, and which cannot be returned to the foundations. The Mor Gabriel monastery foundation is covered by the new legislation even though it was registered in 1960. A regulation will define implementation modalities of the new legislation.
As regards respect for and protection of minorities and cultural rights, Turkey has made progress on cultural rights, especially on use of languages other than Turkish by all nationwide radio and television stations and on use of multiple languages by municipalities. The opening of a Kurdish Language and Literature Department in a university has been authorised. However, restrictions remain on the use of languages other than Turkish in political life, in contacts with public services and in prisons. The legal framework on use of languages other than Turkish is open to restrictive interpretations and implementation remains inconsistent. There has been some progress as regards the Roma, in particular on amending discriminatory legislation. However, a comprehensive policy to address the situation of the Roma is missing. Turkey’s approach to minorities remained restrictive. Full respect for and protection of language, culture and fundamental rights, in accordance with European standards, has yet to be fully achieved. Turkey needs to make further efforts to enhance tolerance and promote inclusiveness vis-à-vis minorities. There is a need for comprehensive revision of the existing legislation and to establish protection mechanisms or specific bodies to combat racism, xenophobia, anti-Semitism and intolerance.
With regard to respect for private and family life and, in particular, the right to protection of personal data, the 2010 constitutional amendments introduced the protection of personal data as a constitutional right. Turkey needs to align its legislation with the data protection acquis, in particular Directive 95/46/EC, and, in that context, to set up a fully independent data protection supervisory authority. Turkey also needs to ratify both the CoE Convention for the protection of individuals with regard to automatic processing of personal data (CETS No 108) and the additional protocol to it on supervisory authorities and trans-border data flow (CETS No 181).
Overall, progress has been made in the area of the judiciary. The adoption of legislation on the High Council of Judges and Prosecutors and on the Constitutional Court is a step in the right direction in terms of the independence and impartiality of the judiciary. Steps have also been taken to increase the efficiency of the judiciary. However, significant further efforts are needed in all areas, including the criminal justice system. Limited progress has been made with implementing the strategy and action plan on anti-corruption. Effective implementation of the strategy is necessary to reduce corruption which remains prevalent in many areas. The lack of transparency relating to political party financing and the scope of immunities remain major shortcomings. Turkey needs to build up a track record of investigations, indictments and convictions. As regards fundamental rights, some progress has been made. However, further significant efforts are needed in most areas, in particular freedom of expression and freedom of religion. Turkey has made progress on cultural rights, especially on use of languages other than Turkish. However, Turkey’s approach to minority rights remains restrictive. Turkey needs to make further efforts to enhance tolerance and promote inclusiveness vis-à-vis minorities.
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