27 June 2007
Screening report
Turkey
Chapter 23 – Judiciary and fundamental rights
Date of screening meetings:
Explanatory meeting: 7-8 September 2006
Bilateral meeting: 12-13 October 2006
Turkey: chapter 23 – Judiciary and fundamental rights
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I.
CHAPTER CONTENT
According to Article 6 (1) of the EU Treaty, the Union is founded on the principles of liberty,
democracy, respect for human rights and fundamental freedoms, and the rule of law. These
principles are common to the Member States and need to be complied with by candidate
countries.
The rule of law principle and the right to a fair trial, as enshrined in Article 6 of the European
Convention on Human Rights (ECHR) and Article 47 of the Charter of Fundamental Rights of the
European Union, provide that the
judiciary must be independent and impartial. The content of
these notions has been clarified in the jurisprudence of the European Court of Human Rights
(ECtHR), which is an accepted reference for the EU
acquis under Article 6 (2) of the EU Treaty.
In particular, Courts must be established by law; there shall be no discrimination in the
appointment procedures of judges; the judiciary must not be influenced in its decision-making by
either the executive or the legislature; judges must act impartially and be seen to do so; their
conditions of tenure must be adequately ensured by law; the grounds for disciplinary action or
removal from the post must be limited and laid down in the law.
Furthermore, it is a general principle of EU law that the judiciary must have sufficient means to
work efficiently; judges are expected to respect high ethical standards in the performance of their
duties in accordance with the law. The Council of Europe (COE) Committee of Ministers
Recommendation N° R (94) 12 on the Independence, Efficiency and the Role of Judges provides
further clarifications. Similarly, the European Guidelines on Ethics and Conduct for Public
Prosecutors (the Budapest guidelines) offer useful guidelines about a common European standard
in the field.
Article 29 of the EU Treaty mentions that preventing and combating
corruption contributes to the
establishment of an area of freedom, security and justice. The 1995 Convention on the Protection
of the EC's Financial Interests and the 1997 Convention on the Fight against Corruption involving
Officials of the EC or the Member States imply that "effective, proportionate and dissuasive"
criminal law penalties are required to fight corruption. The Council Framework Decision on
Combating Corruption in the Private Sector of 2003 defines active and passive corruption in the
private sector as a criminal offence and prescribes the responsibility of legal persons for both
active and passive corruption. Candidate countries are expected under the Communication from
the Commission on a Comprehensive EU Policy against Corruption of 2003 to maintain strong
political commitment at the highest level, develop and improve investigative tools and allocate
more specialised staff to the fight against corruption, pursue training and specialisation,
implement strategies and legislation in an effective manner and become fully aligned with the
relevant international instruments.
According to Article 6 (2) of the EU Treaty and the case-law of the Court of Justice, the Union
respects
fundamental rights, as guaranteed by the ECHR and as they result from the
constitutional traditions common to the Member States, as general principles of Community law.
Thus, they are binding on the Union institutions in the exercise of their powers and on the
Member States when they implement Community law (Article 51 of the Charter of Fundamental
Rights of the EU). In the interpretation of fundamental rights, the Court of Justice has mainly
drawn on the provisions of the ECHR and, occasionally, on several other international sources
such as the UN International Covenant on Civil and Political Rights. In its judgement of 27 June
2006 on the "family reunification" Directive1, the Court of Justice also relied on the Charter of
Fundamental Rights of the EU in order to clarify the scope of the EU fundamental rights
acquis.
1 Case C 540/03
European Parliament v. Council of the EU; judgement of 27 June 2006, recital n° 38.
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The list of fundamental rights covers traditional civil rights, such as the right to life, the
prohibition of torture and degrading treatment, the right to security and liberty imposing strict
limits on pre-trial detention, the freedom of religion, freedom of speech and freedom of
association and assembly. The Union also protects the fundamental right to privacy and
guarantees the protection of personal data. Directive 95/46/EC of the European Parliament and of
the Council on the Protection of Individuals with regard to the Processing of Personal Data and on
the Free Movement of Such Data is the basic instrument at the EC level. The Directive gives
substance to, and amplifies the principles of the protection of the rights and freedoms of
individuals contained in other data protection agreements, in particular the COE Convention of 28
January 1981 for the Protection of Individuals with regard to Automatic Processing of Personal
Data and its Additional Protocol 181. It provides for the free movement of such data within the
EU/EEA for both the public and the private sectors under certain conditions such as legitimacy,
good data quality, and observance of the finality principle.
The EU's human rights list also contains a number of guarantees to secure equality. There is a
general prohibition of discrimination on a variety of grounds; equality between men and women
must be ensured; cultural, religious and linguistic diversity is to be respected. Furthermore, the
rights of the child need special protection; the contents of these rights may be drawn from the UN
Convention on the Rights of the Child ratified by all Member States. Children have, in particular,
the right to survival; development; protection from harmful influences, abuse and exploitation;
and full participation in family, cultural and social life.
Moreover
, the EU Framework Decision on
Combating the Sexual Exploitation of Children and Child Pornography of 2003 calls upon
Member States to ensure that in their legal systems certain conduct is punishable; relevant
sanctions need to be effective, proportionate and dissuasive.
According to Article 21 of the Charter of Fundamental Rights of the EU, members of national
minorities shall not be discriminated against. Article 1 of the Framework Convention for the
Protection of National Minorities confirms that human rights include minority rights. The latter
include the right to non-discrimination of a person belonging to a national minority; the freedom
of association, to assembly, of expression; the freedom of religion; the right to use one's language;
and the effective participation in public affairs. Measures against racism and xenophobia
cover
areas such as anti-Semitism, Islamophobia, anti-gypsism. The importance of preventing and
combating these phenomena is stressed in Article 29 of the EU Treaty. The Council adopted, in
1996, a Joint Action to combat racism and xenophobia.
Finally, the Union
acquis in the field of fundamental rights contains a number of important
judicial guarantees. Everybody has the right to a fair trial and the right to an effective remedy.
Legal aid should be given if the person charged does not have sufficient means; this initially
concerned criminal cases but has been extended, under certain conditions, to civil ones when the
interest of justice so requires. Furthermore, the principles of legality and proportionality of
criminal offences and penalties need to be observed. The accused must also benefit from a
presumption of innocence and enjoy defence rights.
The
EU citizens' rights regard the right to vote and stand as a candidate in elections to the
European Parliament and in municipal elections; the right to move and reside freely within the
European Union; and diplomatic and consular protection.
II. COUNTRY ALIGNMENT AND IMPLEMENTATION CAPACITY
This part summarises the information provided by Turkey and the discussion at the screening
meeting.
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Turkey indicated that it can accept the
acquis regarding Judiciary and Fundamental Rights.
Turkey indicated that it does not expect any difficulties with implementing the
acquis by
accession.
II.a JUDICIARY
Independence
According to Article 2 of the Turkish Constitution Turkey is a democratic, secular and social state
governed by the rule of law. Article 9 mentions that judicial power is exercised by independent
courts. Article 138 provides for the independence of the judiciary and, in particular, that judges
should consider legal cases on the basis of the Constitution, the law, and their personal
convictions conforming to the law. Article 138 also provides that the executive and legislative
bodies should comply with court decisions. Similar provisions to those of the Constitution on the
independence of judges are included in the Law on Judges and Prosecutors 2802 of 1983.
The establishment of the courts, their functions and competence are regulated only by law (Article
142 of the Constitution). Law 5235 on the Establishment of First Instance Courts and Courts of
Appeal regulates the establishment of all civil and criminal courts and courts of appeal. Article 37
of the Constitution states that no one may be tried by judicial authority other than the legally
designated court. Article 37 also provides that extraordinary tribunals with jurisdiction that would
in effect remove a person from the jurisdiction of his legally designated court should not be
established. Under Article 145 of the Constitution military justice is exercised by military courts;
these have jurisdiction to try military personnel for military offences, for offences committed by
them against other military personnel or in military places, or for offences connected with military
service and duties. Law 353 on the Establishment and Proceedings of Military Courts defines the
functions and jurisdiction of these Courts.
The above-mentioned law 2802 together with secondary legislation define the procedure for the
selection of judges and prosecutors. Law school graduates may sit for the competition to enter the
Judicial Academy and, eventually, become judges or prosecutors. The Student Selection and
Placement Centre, an institution that organises tests for the Turkish civil service, conducts the
written test. The successful candidates have to then sit an interview with a five member panel
composed of senior judges seconded to the Ministry of Justice. The Undersecretary of the
Ministry (or his deputy) is one of the five members. The candidates who are also successful at the
interview enter the Judicial Academy. At the expiry of a two year training period, the trainees sit a
graduation test. The High Council of Judges and Public Prosecutors takes the final decision on the
nomination of the successful trainees as judges or prosecutors. This body is composed of three
regular and three substitute members of the Court of Cassation, two regular and two substitute
members of the Council of State, the Minister of Justice (chairman) and the Under-secretary of the
Ministry of Justice. It is responsible for the appointment of members of the Court of Cassation
and of the Council of State, admission of judges and prosecutors to the profession, appointments,
transfers, removal from office and disciplinary sanctions.
The Constitution (Article 139) and Law 2802 (Article 44) provide guarantees for judges and
prosecutors including that they should not be dismissed or forced to retire early, and that they
should not be deprived of their salaries, allowances or rights relating to their status, even as a
result of abolition of a court or a post. Article 140 of the Constitution provides that promotions of
judges and prosecutors are regulated by law. Law 2802 (Article 18) provides that the competent
authority for promotions is the High Council of Judges and Prosecutors. Criteria for promotion are
Turkey: chapter 23 – Judiciary and fundamental rights
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mainly the assessment of the work of each member of the judiciary by high courts, their efficiency
in treating incoming cases, and appraisal files by judicial inspectors2.
Investigations against judges or prosecutors can take place in cases where they have allegedly
committed offences in the course of their duties or their attitude is not in conformity with their
status (Constitution). The initiation of such investigations is subject to permission of the Ministry
of Justice (Article 82 of Law 2802). In case of disciplinary sanctions, the Ministry of Justice
submits a file to the High Council for Judges and Prosecutors. If it is decided that a criminal
investigation is opened, the file is sent to the prosecutor. Judges and prosecutors may appeal the
decisions of the Ministry of Justice before an Administrative Court or the Council of State.
Impartiality
The Civil and Criminal Procedure Codes, together with the Law on Judges and Prosecutors,
provide for the exclusion of judges and prosecutors from cases where there might be either a
conflict of interest or a reasonable doubt about the impartiality of the judge or prosecutor.
As regards anti-corruption provisions for the judiciary, the Turkish Criminal Code contains
provisions to counter attempts to unduly influence judicial bodies, misconduct in office,
counterfeiting of official documents, embezzlement, extortion and bribery. Under the law on
Declaration of Assets, Fight against Bribery and Corruption (Law 3628 of 1990), all judges and
prosecutors should declare their own and their family's property every year. The Law on Judges
and Prosecutors provides for measures against specific acts of corruption.
According to the Constitution (Articles 10 and 138) and the Criminal Code (Article 3), there
should be no discrimination before the law on the basis of language, race, colour, gender, political
opinion, philosophical belief, religion or sect, and judges should exercise their duties on the basis
of their personal conviction, in conformity with the law.
With respect to judicial ethics, the Bangalore principles3 were adopted through a decision of the
High Council of Judges and Prosecutors in 2006. These principles have been published in the
Justice Journal, their translation into Turkish is published on the web-site of the Ministry of
Justice, and they are included in the curriculum of the Judicial Academy. The High Council also
agreed to recognise the Budapest Principles adopted by the Conference of Prosecutors General of
Europe.
Professionalism/Competence
The Judicial Academy plays a central role in the provision of training to the judiciary. It was
established by law in October 2003 and its main task is provision of pre-service and in-service
training programmes to judges, prosecutors, notaries and auxiliary court staff.
Pre-service training normally extends over a two-year period. However, the two-year term has
been reduced to one year taking into account the existing and expected vacancies further to the
introduction of the regional courts of appeal initially planned for 1 June 2007. The normal two-
year period will be re-introduced in five years time. Pre-service training covers both practical and
theoretical matters. Courses are delivered by academics, members of high courts, judges and
prosecutors. The Academy organises courses also on human rights, EU law and judicial ethics.
2 Judicial inspectors are judges seconded to the Ministry of Justice. A new Regulation on judicial inspectors entered
into force on 24 January 2007. This new Regulation needs to be reviewed and assessed.
3 Bangalore Principles of Judicial Conduct adopted by the Judicial Group on Strengthening Judicial Integrity, as
revised by the Round Table of Chief Justices held in The Hague, November 2002.
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In-service training is organised by the Judicial Academy, the Ministry of Justice and the High
Courts of Appeal. The Judicial Academy will ultimately take over the training responsibilities
from the Training Department of the Ministry of Justice; in the meantime, they work in parallel.
The High Council for Judges and Prosecutors has to give its consent to the training programmes
developed by the Ministry of Justice. The latter organises courses on EU law, anti-corruption,
human rights and foreign languages. In addition, the Ministry cooperates with third parties (EU
Member States, COE, etc.) to provide training to judges and prosecutors on human rights and
foreign languages. It also provides financial support to judges and prosecutors for language
training in the form of private courses.
Efficiency
The Constitutional Court, the Court of Cassation, the Council of State and the Ministry of Justice
have their own budgets. The Ministry's budget includes the budget for the remainder of the
judiciary (including prisons) other than the courts mentioned above. There has been a steady
overall increase in the budget allocated for the judiciary over the period 2004 to 2006. Thus, in
2005 for the first time ever the total budget allocated for the judiciary exceeded 1% of the total
state budget.
The National Judiciary Network Project (UYAP) is an information system, an e-justice system. It
covers the whole judiciary and is planned to be completed by the end of 2007. Apart from
allowing members of the judiciary to communicate amongst themselves, it allows them to send
and receive information to and from other departments of the civil service, the Notaries' Unions
and Bar Associations. In terms of premises, 66 Court houses have been constructed since 2003
while 26 more are under construction.
The approximate total number of judges and prosecutors is 9,500 whereas that of candidate judges
and prosecutors is 1,800. Vacancies for both professions are approximately 5,500. In addition,
there are approximately 30,000 judicial personnel. According to available statistical data over the
four-year period 2002 to 2005, both the workload and the average duration of trials have
increased. Although the situation is not the same for every category of courts, it could be said that,
as regards the workload, both the new cases and the cases transferred from the year before have
increased. Measures taken by the authorities to decrease the number of pending cases and the
average trial period include the recruitment of judges, prosecutors and judicial personnel, the
completion of the National Judiciary Network Project (UYAP), the introduction of Regional
Courts of Appeal and the construction of new Court houses and training.
Enforcement officials must be law school (or equivalent) graduates and are recruited following an
examination. They receive initial training and sign a contract providing for, among other things,
that they shall work for the benefit of the public without discriminating on the basis of language,
religion, gender, etc.
Judicial
reform
As regards new legislation, the Turkish Grand National Assembly adopted a number of laws
including the Law on the Establishment of Courts of Appeal and First Instance Civil and Criminal
Courts, the Criminal Code, the Criminal Procedure Code, the Civil Code, the Law on the Public
Inspection Authority, etc. Draft legislation submitted to the National Assembly includes a
Commercial Code and an International Private and Procedural Law. Other pieces of draft
legislation have been sent to public institutions for their views (e.g. draft Civil Procedure Code)
whereas the Ministry of Justice is in the process of finalising draft legislation on issues such as the
Law on the Union of Judges and Prosecutors4.
4 This was the state of play on 12-13 October 2006.
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A number of projects for the modernisation of the judiciary have been launched or are in the
process of being prepared. The former includes the National Judiciary Network Project (UYAP)
described above; the latter, projects to construct new Court houses.
In terms of enhancing the capacity of judges and prosecutors, the authorities conduct training
activities in cooperation with international organisations. Areas they try to focus on include
human rights, the ECHR and the jurisprudence of the ECtHR.
There is no overall National Reform Strategy for the Judiciary or any plan to implement such a
Strategy.
II.b ANTI-CORRUPTION
Policy and domestic institutions
The Turkish authorities have stated that corruption is a significant issue that has to be dealt with
and that they have the political will and commitment to fight it. Turkey adopted an Action Plan on
Enhancing Transparency and Improving Governance in the Public Sector in 2002. This Plan
aimed at improving effectiveness in the civil service, judiciary, health care, fight against money
laundering, campaign financing and asset disclosure. A Parliamentary Investigation Committee on
Causes and Dimensions of Corruption issued its report in 2003 portraying aspects of corruption
and suggesting remedies.
There is a wide range of bodies responsible for anti-corruption activities. The Parliament has the
power to set up special investigation commissions. Parliamentary committees have looked into
corruption matters and produced reports including recommendations on measures to be taken by
public institutions. The Presidency (State Supervisory Council) is empowered to conduct audits in
all public institutions. The Ministry of Interior acts through the police in the urban areas and the
gendarmerie in the rural areas. There are inspectorates at the Prime Minister's Office, line
Ministries and major Agencies. Public prosecutors are organised in provinces, each headed by a
Chief Prosecutor.
There is no overall National Anti-corruption Strategy or any plan to implement such a Strategy.
Domestic
legal
framework
The Law on Declaration of Assets and the Fight against Corruption of 1990 provides for
disclosure of assets by a range of elected officials, Ministers, civil servants and owners of media.
It also empowers the authorities to review such declarations. The Law on Access to Information
of 2003 gives institutions 15 days within which they have to provide information to the public,
upon demand. This law was amended in 2006 to allow citizens to dispute decisions of the
administration refusing to provide information. In 2005, 87% of a total of 600,000 applications
was responded to positively. The Law on the Establishment of the Civil Servants Ethics Board of
2004 provides that the Board is responsible for setting the Code of Ethics and overseeing its
implementation. In this context, the Regulation on Principles of Ethical Behaviour for Civil
Servants was published in 2005. To increase awareness, Turkish authorities established 25 May as
the Day of Ethics and conducted training programmes. Legislation on public procurement of
2003, on public financial management and control of 2006, on banking of 2004 and on local
government of 2004 includes provisions against corruption. The Law on the Press of 2004
abolished penalties such as imprisonment, temporary shutdown, seizure of press devices, etc. for
offences committed through the press. According to the Turkish authorities, legislation reducing
red tape and recruitment of civil servants through a test organised nation-wide reduce possibilities
for corruption. Law 2820 on political parties requires them to hold accounts of income and
expenditure and prohibits them from conducting business activities.
Turkey: chapter 23 – Judiciary and fundamental rights
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The Criminal Code provides for the offences of extortion (through coercion or persuasion);
bribery (active and passive); fraud; embezzlement; fraud in public tenders; fraudulent bankruptcy;
misinformation about companies; counterfeiting; abuse of official power; trading in influence;
illicit enrichment; smuggling; embezzlement in banks. All these offences lead to imprisonment
and, possibly, to fines. In the case of commission of these offences in an organised manner, the
offence as such is punished in addition to that of establishing a criminal organisation. Public
officers who either intentionally ignore embezzlement or extortion, or fail to perform their control
duty, facilitating thus the commission of embezzlement or extortion, are sentenced to
imprisonment. Legal persons can also be held responsible for offences of corruption. The
Criminal Code also includes provisions against the bribery of foreign public officials. As regards
corruption in the private sector, the Criminal Code's provisions on active and passive bribery are
applicable to persons acting on behalf of professional organisations (chambers, bar associations,
trade unions), companies and foundations owned by public institutions, associations serving the
public interest, cooperatives, and joint stock companies whose shares are traded on the Stock
Exchange. Breach of trust and failure to inform authorities of offences that have been committed
lead to imprisonment. Turkish courts have jurisdiction over all the offences defined in the
Criminal Code committed within the Turkish territory by Turkish nationals and foreigners.
Confiscation and deprivation of instruments and proceeds of crime are dealt with by the Code.
The law on civil servants provides that those members of the public who have been sentenced to
at least 6 months imprisonment and those who have committed the crimes of embezzlement,
bribery, extortion, robbery, fraud, breach of trust, smuggling, fraud in public tenders and revealing
classified information are not eligible to be recruited into the civil service. These crimes also
constitute reasons for the dismissal of a civil servant from service. Disciplinary sanctions range
from warning to termination of employment. A disciplinary procedure does not prevent the
initiation of criminal proceedings.
International legal framework and institutions
Under Article 90 of the Turkish Constitution international agreements duly put into effect bear the
force of law.
The UN Convention against Corruption became binding on Turkey, further to ratification, in
2006; the COE Criminal Law Convention on Corruption and the Civil Law Convention on
Corruption in 2004; and the OECD Convention on Combating Bribery of Foreign Public Officials
in International Business Transactions in 2000.
Turkey participates in the CoE's Group of States against Corruption (GRECO) and INTERPOL; it
became a member of INTERPOL in 1930. The Ministry of Interior assigned the INTERPOL
Department as the National Bureau to ensure communication, exchange of information and
cooperation between the Turkish authorities and INTERPOL and OLAF.
Aspects related to money laundering are dealt with in chapter 4 – Free Movement of Capital;
aspects related to public procurement are dealt with in chapter 5 – Public Procurement; aspects
related to the fight against organised crime are dealt with in chapter 24 – Justice, Freedom and
Security.
II.c FUNDAMENTAL RIGHTS
General
Fundamental rights are guaranteed in the Turkish Constitution. The latter provides that everyone
possesses inviolable and inalienable fundamental rights and freedoms (Article 12). These may be
restricted only by law and in conformity with reasons included in the Constitution without
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infringing upon their essence (Article 13). Article 14 mentions that none of the rights and
freedoms embodied in the Constitution shall be exercised with the aim of violating the indivisible
territorial and national integrity, or of endangering the existence of the democratic and secular
order of the Turkish Republic. According to Article 90 (4) of the Constitution, in case of
contradictions arising from different provisions on the same issue regarding basic rights and
freedoms between, on the one hand, approved international agreements and, on the other,
domestic laws, the provisions of international agreements take precedence.
Turkey has ratified UN human rights conventions such as the ICCPR, the First and Second
Optional Protocols to the ICCPR5, the International Covenant on Economic, Social and Cultural
Rights, the Convention on the Elimination of All Forms of Discrimination against Women, and
the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
It is also party to a number of COE Conventions and Protocols such as the ECHR together with a
large number of its Protocols. Turkey has signed but not ratified the Optional Protocol to the UN
Convention against Torture (OPCAT). Three Additional Protocols to the ECHR have been signed
but not ratified, including Protocol No 12 on the general prohibition of discrimination by public
authorities, signed in 20016.
The institutional structure established for monitoring the human rights situation in general
includes the Human Rights Presidency at the Office of the Prime Minister; the Human Rights
Provincial and Sub-provincial Boards (931 in total) in which civil society representatives
participate (both the Presidency and the Boards carry out investigations on allegations of human
rights violations); the Human Rights Advisory Board under the Office of the Prime Minister,
composed of NGOs, experts, and representatives from Ministries; and the Human Rights Inquiry
Commission of the Parliament.
Aspects related to the fight against terrorism are dealt with in chapter 24 – Justice, Freedom and
Security; this chapter deals with the possible impact of anti-terrorist legislation on human rights.
Human
rights7
•
Right to life and to the integrity of the person
Article 38 of the Constitution provides that no one shall be sentenced to death. Turkey is party to
Additional Protocols 6 and 13 of the ECHR. According to Article 17 of the Constitution, everyone
has the right to life and the right to develop, physically and spiritually. The Criminal Code states
that intentional homicide is punished with life imprisonment and that qualified intentional
homicide is punished with aggravated life imprisonment. Examples of qualified intentional
homicides are homicides against pregnant women, homicides by means of fire, biological or
chemical weapons or moral/custom homicides. A person who encourages, assists or empowers the
decision of another person to commit suicide is sentenced to 2 to 8 years of imprisonment.
Euthanasia is not regulated in Turkish legislation. The Criminal Code, further, prohibits abortion
after the tenth week of pregnancy, or the twentieth week of pregnancy where the woman is a
victim of rape. Perpetrators of genocide are sentenced to aggravated life imprisonment and there
is no statute of limitations, while perpetrators of crimes against humanity are sentenced to 8 years
to aggravated life imprisonment. Article 90 of the Turkish Criminal Code includes provisions
regarding experiments on humans, Article 91 on organ or tissue trading and Article 101 on
sterilisation. Article 287 of the same Code covers unauthorised genital examinations and Article
5 The First Protocol was ratified in November 2006; it became binding on Turkey in February 2007. The Second
Protocol was ratified in March 2006 and became binding on Turkey in June 2006.
6 The other two Protocols are N° 4 (signed in 1992) and N° 7 (signed in 1985).
7 Human dignity is a horizontal principle that characterises the entire chapter and is, thus, not developed separately.
Turkey: chapter 23 – Judiciary and fundamental rights
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75 of the Criminal Procedure Code deals with the physical examination of the suspect or the
accused and the extraction of biological material from his/her body.
•
Prohibition of torture and inhuman or degrading treatment or punishment
Under Article 17 of the Constitution no one shall be subjected to torture, or to penalties or
treatment incompatible with human dignity. According to Article 94 of the Criminal Code any
public officer who causes severe bodily or mental pain, or loss of consciousness or the ability to
act, or humiliation shall be sentenced to imprisonment. Article 95 of the same Code provides for
penalties for torture aggravated by its consequences, and Article 256 for use of force by a public
officer exceeding the limits of competence. Article 92 of the Criminal Procedure Code mentions
that the chief public prosecutors shall inspect and/or review detention premises, interrogation
rooms, the situation of persons in detention, the reasons for and duration of detention. Article 148
of this Code deals with prohibited methods in statement taking and interrogation and clarifies that
any physical or psychological intervention that would hamper free will – such as ill-treatment,
torture, the administration of medicines or drugs, and the infliction of fatigue, deception, the use
of compulsion or threat, and the use of certain equipment is prohibited; also, that statements taken
through the prohibited methods shall not be used as evidence notwithstanding that they were
given with the person's consent.
Turkey has adopted a "zero tolerance" policy on torture. The institutional structure established for
monitoring the human rights situation in general is also applicable to torture in particular. The
Turkish authorities have indicated that the Ministry of Justice and the Ministry of Interior have
issued circulars aiming at ensuring consistency of implementation of the legislation and that they
have organised training for the judiciary and the police respectively.
Turkey is party to a number of international agreements both in UN, and COE8 and OSCE fora. It
has signed but not ratified the Optional Protocol to the UN Convention against Torture (OPCAT).
•
Prohibition of slavery, servitude, and forced or compulsory labour
Article 18 of the Constitution provides that no one shall be forced to work and that forced labour
is prohibited. According to Article 117 of the Criminal Code any person who employs defenceless
persons without payment or with low wage or forces him/her to work and live under inhuman
conditions shall be sentenced to imprisonment.
Aspects related to labour law are dealt with in chapter 19 – Social Policy and Employment.
•
Respect for private and family life and communications
Article 20 of the Constitution guarantees an individual's right to a private and family life. Article
21 provides for the inviolability of the domicile of an individual and Article 22 for the right to
freedom and secrecy of communications. Article 41 states that family is based on the equality of
spouses. The Criminal Code prescribes prison sentences in case of violation of the immunity of
private dwellings and of their unlawful search. It also provides for prison sentences in cases of
prevention of communications, violation of the secrecy of communications, unlawful publication
or disclosure of the contents of communication between persons, taping and recording of
conversations between persons; and recording of conversations in meetings closed to the public
without the consent of the participants.
8 Turkey became party to the European Convention for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment in February 1989 thereby recognising the competence of CPT, the Convention's monitoring
body.
Turkey: chapter 23 – Judiciary and fundamental rights
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•
Right to marry and right to found a family
Article 41 of the Constitution states that family is the foundation of the Turkish society and that it
is based on the equality of spouses. The Civil Code, which sets the legal framework regarding
marriage and divorce, provides for the legal age of marriage. Under the same Code, in case a
married person is married a second time, the second marriage is null and void; spouses manage
the household together; both men and women are given equal status within the marriage and are
both able to represent the family on legal matters. Other provisions of the Civil Code ensure that
children born outside the marriage have the same legal status as children born within the marriage.
The Criminal Code provides that married persons who conclude a second marriage or persons
who conduct a religious marriage before a legal marriage has taken place are sentenced to prison.
Family Courts are established by law and are competent to decide on matters related to family
law. They are first instance courts with a single judge, to which the Ministry of Justice has
assigned psychologists, pedagogues and social workers. The institutional structure that ensures
monitoring of the implementation of Article 41 of the Constitution includes the Directorate
General for Family and Social Research, the Directorate General on the Status of Women and the
Agency for Social Services and Child Protection.
•
Freedom of thought, conscience and religion
Article 24 of the Constitution guarantees the freedom of religion and conscience; Article 25
guarantees freedom of thought and opinion. Article 24 provides that everyone has the right to
freedom of conscience, religious belief and conviction and that acts of worship are conducted
freely provided they do not violate the provisions of Article 149 of the Constitution. Article 24
further provides that religious culture and moral education classes are compulsory in the curricula
of primary and secondary education and conducted under state supervision. There is no legislation
on conscientious objection.
According to the Civil Code, adults are free to choose their religion. The Criminal Code states that
discrimination on grounds of, among other things, political ideas, philosophical beliefs and
religion is punishable by imprisonment. Forcing an individual to express or change, or preventing
him/her from expressing or disseminating his/her religious thoughts and beliefs constitutes an
offence. There is a religion section in the registry and on identity cards. This is completed,
changed or left blank in conformity with the person's written statement. As regards construction of
places of worship, first the land must be reserved for such use according to construction law;
second, permission has to be granted by the head of the provincial authority; third, construction
and use permits have to be issued by the local administration. Places of worship may be
constructed by individuals, associations or foundations. The property rights of places of worship
are with the persons, natural or legal, that have supported their construction. Mosques are
managed by the Presidency of Religious Affairs whereas non-Muslim places of worship by their
associations or foundations.
Article 136 of the Constitution provides that the Presidency of Religious Affairs is part of the
central administration. Law 633 of 1965 clarifies that the Presidency is established under the
Prime Ministry and oversees matters related to belief, worship and ethics in Islam, including the
9 "None of the rights and freedoms embodied in the Constitution shall be exercised with the aim of violating the
indivisible integrity of the state with its territory and nation, and endangering the existence of the democratic and
secular order of the Turkish Republic based upon human rights.
No provision of this Constitution shall be interpreted in a manner that enables the State or individuals to destroy the
fundamental rights and freedoms embodied in the Constitution or to stage an activity with the aim of restricting them
more extensively than stated in the Constitution …"
Turkey: chapter 23 – Judiciary and fundamental rights
11
administration of places of worship. More specifically, the law confirms that the Presidency does
not represent any sect or school of Islam and that it is expected to provide opinions on the history
of the Muslim religious experience in the light of reason and science, and views on current
religious issues taking into account modern life. The Presidency is thus, according to the Turkish
authorities, not a religious organisation like a Church, does not have a religious hierarchy, and its
civil servants do not represent a spiritual authority.
•
Freedom of expression including freedom and pluralism of the media
Article 26 of the Constitution provides for the right to express and disseminate thoughts and
opinions by speech, in writing or in pictures or through other media, individually or collectively.
This does not preclude subjecting transmission by radio, television, cinema and similar means to a
system of licensing. In addition, the exercise of these freedoms may be restricted in order to
protect national security, public order and safety, to safeguard the territorial and national integrity
of the country, to protect the reputation, rights and private and family life of others, or to ensure
the proper functioning of the judiciary. Under Article 28 the press is free and shall not be censored
and the establishment of a printing house is not subject to prior permission.
The Criminal Code includes restrictions on the exercise of the right to freedom of expression. As
regards offences against dignity, Article 125 provides that defamation is punishable by either a
prison sentence or a fine. With respect to offences against public peace, prison sentences and fines
are foreseen under Article 215 for praising of an offence or an offender; under Article 216 for
inciting a section of the population to hostility and hatred that causes a clear and imminent danger
to public safety, or for humiliating a section of the population; under Article 217 for inciting to
disobey the law if the incitement disturbs public peace; under Article 220 for making propaganda
either for an organisation that has been established in order to commit crimes or for its objectives.
With respect to offences against public morals, prison sentences and fines are foreseen under
Article 226 for displaying obscene material to children; for broadcasting or publishing obscene
material or acting as an intermediary for this purpose; and for using children in the production of
obscene material. As regards offences against the judiciary, prison sentences are foreseen under
Article 277 for influencing judicial officials; under Article 285 for breaching the confidentiality of
an investigation and the confidentiality of statements or images; for publishing during prosecution
or trial images that label persons as guilty; under Article 288 for public statements to influence the
judiciary before the conclusion of a trial. With respect to offences against symbols of state
sovereignty and reputation of its administrative organs, prisons sentences and fines are foreseen
under Article 299 for insulting the President of the Republic; under Article 300 for insulting the
Turkish flag or the national anthem; under 301 for insulting Turkishness, the Republic, the Grand
National Assembly; for public denigration of the Government, the judiciary, the military or the
security services. Paragraph 4 of Article 301 states that expressions of thought intended to
criticise shall not constitute a crime. As regards the offences against state security, prison
sentences and fines are foreseen under Article 304 for inciting foreign states to wage war against
Turkey or for supporting organisations established to commit crimes against the Turkish state;
under Article 305 for Turkish citizens or foreign residents in Turkey for gaining material
advantage from foreigners or foreign organisations for acts contrary to the independence,
territorial integrity and national security of Turkey. With regard to the offences against national
defence, prison sentences are foreseen under Article 318 for discouraging people from performing
their military service. The anti-terror law provides for prison sentences for persons that reveal the
names of civil servants or informers in charge of combating terrorism or for disseminating
propaganda for terrorist organisations.
The press law (5187 of 2004) provides that the press is free and that this freedom includes the
right to acquire and disseminate information, to criticise, interpret and create works. Restrictions
to this freedom may result on grounds of protecting the reputation and rights of others, national
Turkey: chapter 23 – Judiciary and fundamental rights
12
security, public order and safety, safeguarding the indivisible integrity of national territory,
preventing crimes, protecting information classified as a state secret, and ensuring the authority
and impartial functioning of the judiciary. Amendments to the anti-terror law were adopted in
June 2006. They allow the suspension of periodicals whose contents openly encourage the
commission of crimes within the framework of the activities of a terrorist organisation, praise the
crimes committed and its offenders or make propaganda for the terrorist organisation. They also
introduce the liability of chief editors and of press and media owners for publishing terrorist
propaganda or praise in press or media, and establish aggravated penalties for propaganda and
praise of terrorism. In August 2006 President Sezer applied to the Constitutional Court for the
cancellation of Articles 5 and 6 providing for such restrictions. These Articles are currently in
force since no suspension of their execution has been requested from the Court. Last, some other
pieces of legislation contain provisions restricting freedom of expression.
In October 2006 there were 23 national TV channels, 16 regional and 214 local, and 36 national
radio stations, 101 regional and 954 local. There were a total of 4,252 periodical publications.
A number of training activities have been undertaken regarding the enforcement of these
provisions and the incorporation of the ECtHR case law into the Turkish legal system.
Aspects related to broadcasting and audio-visual policy including regulatory bodies in these areas
are dealt with in chapter 10 – Information Society and Media.
•
Freedom of assembly and association, including freedom to form political parties,
the right to establish trade unions
Under Article 34 of the Constitution everyone has the right to hold peaceful meetings and
demonstration marches; this right can only be restricted by law on grounds of national security,
public order and prevention of crime, protection of public health and morals or protection of the
rights and freedoms of others.
Law 2911 on Assemblies and Demonstration Marches provides for the same right and that public
authorities must be notified by the organisers for all assemblies and demonstration marches. A
notification has to be submitted to the authorities by a committee of seven individuals 48 hours
before the beginning of the assembly or the demonstration. A Government representative is
assigned to confirm that the event is conducted in accordance with the law. The law provides for
time limits and unauthorised places (e.g. motorways, places of worship, public buildings, etc.) for
holding meetings and demonstrations. It also enumerates the cases in which an assembly or a
demonstration march could be considered unlawful. These include attending a meeting with
material that can be used for violence and when no permission has been obtained for the
organisation of a meeting with foreign participants. Assemblies organised by political parties,
occupational institutions, trade unions, foundations, associations, corporations, assemblies held
according to traditions and customs, assemblies with a sporting or scientific character or those
held for commercial purposes, fall outside the scope of law 2911. Comparable rules apply during
electoral campaigns where the High Board for Elections is in charge of regulating political
meetings.
According to Article 33 of the Constitution everyone has the right to form associations, become a
member of an association or withdraw from membership; this freedom may only be restricted by
law on grounds of national security, public order and prevention of crime, or protection of public
health and morals. Restrictions may be imposed on members of the armed and security forces, and
on civil servants to the extent that their duties so require. Associations may be dissolved or
suspended from activity by a decision of a judge as prescribed by law. The same provisions apply
for foundations.
Turkey: chapter 23 – Judiciary and fundamental rights
13
Articles 56 – 100 of the Civil Code on associations provide that a court may decide to dissolve an
association if its objectives are not compatible with the legislation and public morals. Foreign
nationals that reside in Turkey may establish or join an association. The Law on Associations of
2004 reiterates the provision of the Constitution that natural or legal persons with capacity to act
have the right to establish associations without permission; also, that restrictions may be imposed
by special laws on members of the armed and security forces or on civil servants. Further, Article
30 of the law stipulates that associations shall not, among other things, engage in education and
training activities preparing for the military service or national security and law enforcement
services, or establish camping sites or training premises towards that objective, or use uniforms
for their members. Article 5 provides that associations may engage in international cooperation,
establish branches or join associations abroad. Foreign associations, upon permission of the
Ministry of Interior and the Ministry of Foreign Affairs, may engage in cooperation and establish
branches or associations in Turkey.
Article 68 of the Constitution grants citizens over the age of 18 years the right to form, without
prior permission, political parties, and to join or withdraw from them. The Article further
stipulates that the statutes and programmes of the parties shall not be in conflict with the
independence of the state, its territorial and national integrity, human rights, equality before the
law and the rule of law, sovereignty of the nation, and the principles of a democratic and secular
republic. Political parties shall not aim to protect a class or to establish a dictatorship. Members of
the judiciary, civil servants, public servants who are not considered to be workers by virtue of the
services they perform, and members of the armed forces may not join political parties. The Law
on Establishment of Political Parties of 1983 provides that only Turkish citizens may form parties
and that every Turkish citizen may become a member of, or withdraw from, a party. Citizens
cannot be members of more than one political party at the same time and it takes at least thirty
citizens to form a party. Parties must have their Headquarters in Ankara. In October 2006, there
were 51 political parties in Turkey.
Aspects related to Trade Union rights are dealt with in chapter 19 – Social Policy and
Employment.
•
Treatment of socially vulnerable and disabled persons and the principle of non-
discrimination
Under Article 10 of the Constitution all individuals are equal without any discrimination before
the law, irrespective of language, race, colour, gender, political opinion, philosophical belief,
religion and sect, or any similar considerations; also, that no privilege may be granted to any
individual, family, group or class. There are no specific provisions on anti-discrimination on
grounds of age or sexual orientation. State institutions are expected to act in compliance with the
principle of equality before the law in all their proceedings. The Criminal Code provides for
prison sentences or fines for those practicing discrimination on the grounds mentioned in the
Constitution.
The Law on the Agency for Social Services and Child Protection of 1983 governs protection and
care services for, among others, the socially vulnerable. Elders are considered those individuals
that are at least 60 years old. The Agency runs 67 Homes for the Elderly, and Care and
Rehabilitation Centres for the Elderly providing boarding for 5,702 people. The Agency has
issued permits for a further 10,737 beds in 141 Homes for the Elderly belonging to private and
public institutions.
Aspects related to people with disabilities and to EU anti-discrimination legislation are dealt with
in chapter 19 – Social Policy and Employment.
•
Right to education
Turkey: chapter 23 – Judiciary and fundamental rights
14
Article 42 of the Constitution provides that no one may be deprived of the right to education and
that primary education is compulsory for boys and girls and free of charge in state schools. Article
130 provides for the establishment of universities and their autonomy in teaching.
The Basic Law of National Education of 1973 foresees that educational institutions are open to all
regardless of language, race, gender or religion and that men and women have equal opportunities
and means of education. The Law on Primary Education of 1961 provides that parents preventing
their children from attending schools are subject to fines and, in cases of prolonged absence, to
imprisonment. Education is considered to be national, republican, secular, having a scientific
foundation, and being functional and modern.
According to information provided by the Turkish Ministry of National Education10, every year
approximately 1.3 million students start school in Turkey. They are almost equally split between
boys and girls. Education statistics indicate that approximately 10% of the Turkish children in the
compulsory education age group (6 to 14) are not enrolled in school. Nearly three-fourths of these
children are girls. The schooling rate is the lowest in the Eastern and South-eastern regions of
Anatolia.
The authorities have implemented a number of programmes to deal with the situation. These
include the 1997 Basic Education Programme and the "Support to Basic Education" projects
financed in part by the WB and the EU; the "100% Support to Education Programme" providing
tax incentives to the private sector for investments in education; and the campaigns "Child
Friendly Schools" and "Girls, Let's Go to School” together with UNICEF. The latter started in
2003 and targeted girls of the 6-14 age group who either never started primary school or left
school or had not been attending regularly. Further to home visits by the campaign teams,
approximately 273,500 girls were identified as falling under these categories. Of these,
approximately 223,000 have been schooled by the academic year 2006-2007.
As of 2006 disabled persons up to 18 years of age are entitled to special education. In this context,
the state meets their educational expenses in special public schools; € 210 are paid per child per
month when these children attend special private schools.
New primary education curricula have been developed for up to the 8th grade. The 1st through to
6th grade programmes are being implemented in the academic year 2006-2007. The 7th and 8th
grade programmes are piloted and their implementation is planned by 2009. The Turkish
authorities have indicated that in the process of revision of the textbooks, discriminatory language
is being eliminated.
Aspects related to cooperation in the field of education policies, Community programmes and
access to education of EU citizens are dealt with in chapter 26 – Education and Culture.
•
Right to property
The right to own property is enshrined in Article 35 of the Constitution. It may be limited by law
only in view of the public interest. Expropriation is possible in accordance with the law provided
compensation is paid. Private enterprises performing public services may be nationalised when
this is in the public interest and compensation is paid on the basis of actual value. The coast is
under the sovereignty of the state. The Civil Code provides that everyone has the right to own,
use, manage and bequeath movable and immovable property.
10 January 2007.
Turkey: chapter 23 – Judiciary and fundamental rights
15
Under the (draft) Law on Foundations11 the latter can own and manage their property without
prior permission. A court decision should be issued when foundations sell immovable property or
rights acquired at their establishment whereas only the decision of the competent body of the
foundation is needed to sell immovable property or rights acquired at a later stage. Foundations
can establish companies and commercial bodies and can participate in existing companies with a
view to realising their objectives and generate income for themselves. The draft Law allows non-
Muslim community foundations to register under their names in the Land Registry Records
immovable property which is either stated in their 1936 Declarations under figurative or fictitious
names or purchased by or bequeathed or donated to community foundations after their 1936
Declarations but registered under the name of the testator or of the donator or of the Treasury or
of the Directorate General for the Foundations because of restrictions in owning property.
Donations of immovable property to foundations cannot be seized or mortgaged12. Properties
which are no longer used, partly or in whole, for their original purpose, can be transferred to
another foundation of the same community or leased. These issues, and pending the adoption of
the law, remain open. The issue of properties seized and sold to third parties is not covered under
the draft law.
Under the Land Registry Law 2644, citizens of third countries can inherit real estate in Turkey
provided Turkish citizens can inherit real estate in these countries (principle of reciprocity). When
there is no reciprocity, properties are liquidated after their transfer transaction is performed.
Special legislation governs the acquisition of property by foreign companies incorporated outside
Turkey.
•
Gender equality and women's rights
Article 10 of the Constitution provides for equal rights between men and women and Article 41
for the equality of spouses. The Convention on the Elimination of All Forms of Discrimination
against Women (CEDAW) became binding on Turkey in 1986 and its Optional Protocol in 2003.
The Penal Code provides for prison sentences or fines for sexual assault or harassment; for
deprivation of freedom; for prevention of education and training; for discrimination on grounds
of, amongst other things, gender; for encouragement or facilitation of prostitution; for
maltreatment; for violations of obligations derived from family law; and for unauthorised genital
examination. The Law on Enforcement of Penalties and Security Measures of 2004 foresees the
establishment of separate detention institutions for female convicts or, if this is not feasible, for
separate locations from male convicts; delays of imprisonment due to pregnancy or giving birth;
and the sheltering of dependant children (up to six years of age) of female convicts. Under the
Law on the Protection of Family of 199813 a spouse may not act violently against the other
11 Law 5555 was adopted by the Turkish Grand National Assembly on 9 November 2006. Nine (9) Articles of the law
were vetoed by the President of the Republic later in the month on the grounds that certain rights granted to
foundations were contrary to the Turkish Civil Code, the Constitution and the Lausanne Treaty. Until its adoption,
Law 2762 of 3 June 1935 governs these matters.
12 On 9 January 2007 the ECtHR held unanimously that there had been a violation of Article 1 of Protocol N° 1
(protection of property) to the ECHR in the case of the foundation
Fener Rum Erkek Lisesi Vakfi vs. Turkey
(application N° 34478/97). In 1952 the foundation received a gift of part of a building in Istanbul and purchased
another part of that building in 1958. These properties were registered at a later stage with the Land Registry. The
Istanbul High Court had granted in 1996 a request of the Turkish Treasury that this registration be cancelled on the
basis of a Court of Cassation decision of 1974 that foundations whose membership is made up of religious minorities
as defined by the Treaty of Lausanne and whose constitutive documents did not contain a statement that they had the
capacity to acquire immovable property were precluded from purchasing or accepting a gift of such property. The
Court of Cassation had confirmed the decision of the Istanbul High Court in the same year.
13 This law was amended in May 2007 through Law 5636. The latter covers all individuals in the family including
those living separately (note: in order for the previous law to be enforced in cases of domestic violence, the couple
had to live under the same roof); enforcement of court decisions is monitored by the law enforcement bodies
including the police, gendarmerie and the village guards; and fees required for applying to courts and for enforcing
court decisions are abolished.
Turkey: chapter 23 – Judiciary and fundamental rights
16
spouse; may not approach the house or the work place of the other spouse after being banned from
the common house; and, may not disturb the other spouse by insisting on communicating with
him/her. According to the Civil Code married women may keep their maiden name; a spouse does
not need the consent of the other spouse when selecting a job; single persons can adopt provided
they are at least thirty years of age; custody of children of a married couple is shared equally
between husband and wife and, if they are not married, the custody belongs to the mother. The
Municipality Law of 2005 provides for the establishment of shelters for women in metropolitan
municipalities and in municipalities with a population of 50,000 people or more. The by-law on
the Principles and Procedures of Radio and Television Broadcasts of 2003 does not allow
broadcasts that portray individuals as sexual objects or legitimise violence inside the family,
sexual harassment, rape, or ignore the rights of women. In July 2006 a Prime Ministry Circular
was issued on “The Measures to be Taken on the Prevention of Violence against Women and
Children, and Honour and Custom-Motivated Crimes” further to the report of an
ad hoc parliamentary commission established to investigate the issue in 2005. A Protocol was signed14
between the Ministry of Interior and the State Ministry in charge of women and family issues to
train police on violence against women.
A number of activities and projects have been undertaken to promote gender equality. These are
aimed at, among other things, institutional capacity building, combating domestic violence against
women, providing shelters for women subjected to violence, raising awareness to change
traditional societal attitudes including within the Army, and providing in-service training to
judges, public prosecutors and the police.
The Directorate General on the Status of Women, affiliated to the Office of the Prime Minister,
was established in 1990 and reorganised in 2004. Its remit is to protect women’s rights and to
strengthen their social, economic and political status; it has 40 staff. Its responsibilities include the
development of strategies, plans and programmes; contributions to policy making; the assessment
of laws and administrative regulations from a gender equality perspective; the prevention of all
forms of violence; promotion of gender equality; and the contribution to the development of
gender statistics. The Consultative Committee on Women’s Status was established in late 2004,
includes public institutions, NGOs and universities, and aims at furthering gender equality. There
is a total of 30 shelters for women subjected to violence of which 19 are affiliated to the Agency
for Social Services and Child Protection (capacity: 368), 9 foundations/units/departments belong
to private and public institutions, and 2 shelters in Ankara and Istanbul are established by NGOs
for victims of human trafficking.
Employment aspects of gender equality are dealt with in chapter 19 – Social Policy and
Employment.
•
Rights of the child
The UN Convention on the Rights of the Child became binding on Turkey in 1995. Turkey is
party to the two optional Protocols to this Convention, the Protocols on the Sale of Children,
Child Prostitution and Child Pornography (since 2002), and on the Involvement of Children in
Armed Conflict (since 2004).
Further to amendments to the Criminal Code, every person below 18 years of age is a child; this is
in line with the UN Convention. The Criminal Code defines sexual exploitation of the child as a
separate crime. It also stipulates aggravated sentences for sexual crimes committed against
14 The Protocol on the Role of the Police in Eliminating Violence against Women and Procedures to be Pursued was
signed on 26 December 2006 in line with the Prime Ministry Circular of July 2006. A total of 40.400 policemen and
policewomen are to receive in-service training on domestic violence, gender issues, assistance to victims and
legislation.
Turkey: chapter 23 – Judiciary and fundamental rights
17
children and outlines cyber crimes against children. The Criminal Procedure Code foresees the
appointment of legal counsel for children that are victims of crime. The Child Protection Law of
2005 aims at integrating international standards into the procedures and principles regarding
children in need of protection. In particular, it establishes a legal framework aimed at
safeguarding the rights and well-being of both children with particular problems and children
under legal investigation or who have been convicted of crimes.
The Agency for Social Services and Child Protection is the coordinating institution responsible
for monitoring the implementation of the UN Convention on the Rights of the Child. The
Ministries of Interior, Justice, Education and Foreign Affairs are the main institutions involved in
the protection of the rights of the child while an Inter-sectoral Child Committee has been
established in the framework of cooperation of the Turkish Government with UNICEF. Child
Right Committees and Centres have been constituted within 55 Bar Associations within the
country.
Efforts have been made through projects, symposia, and other fora to promote the rights of child,
to fight against violence in schools and substance addiction, to remove street children exploited
through forced labour and place them in proper training programmes, and to promote family-
rather than institutional care. Turkish authorities estimate that economic reasons lead
approximately 60% of children in institutional care to children’s homes, orphanages, care and
rehabilitation centres. Of these, 1,839 children returned to their families and 5,990 children
avoided being put in institutional care in 2005 further to the support provided to their families by
the authorities. Services for rehabilitation of girls of 11-18 years of age exposed to sexual
exploitation are provided at two Istanbul Child and Youth Centres and the number of girls reached
to date is 421.
Aspects related to child labour are dealt with in chapter 19 – Social Policy and Employment.
Procedural
safeguards
•
Liberty and security
Article 19 of the Constitution enshrines the right to personal liberty and security. Deprivation of
liberty can only take place in cases, and under conditions, defined by law. The Article further
provides that information to the person arrested and detained about arrest and detention should be
provided; that the arrested or detained person should be brought before a judge at the latest within
48 hours (in cases of offences committed collectively at the latest within 4 days); and that a next
of kin of the arrested or detained person should be notified immediately.
As regards arrest, the Criminal Procedure Code foresees that law enforcement officials are
authorised to arrest a person as provided under the law; and that anyone may temporarily arrest a
person if the offence is committed in his/her presence, there is a possibility that the offender may
escape and it is not possible to establish the offender’s identity. Further, that law enforcement
officials immediately inform the arrested person of his/her rights. More specifically, under the By-
law on Arrest, Detention and Statement Taking of 2005 the arrested person shall be informed of
the reason for his/her arrest, the allegations against him/her, his/her right to remain silent and to
refer to the services of a defence lawyer, the right to object to the arrest and the right to appeal.
The arrest may be appealed and the appeal should be communicated to the competent judge in the
fastest way. The Criminal Procedure Code stipulates that if the person arrested upon warrant of
arrest cannot be brought to the competent court within 24 hours, he/she will be brought before the
closest judge of the criminal court of peace. All aspects of the arrest procedure are recorded in
writing. The By-law on Arrest, Detention and Statement Taking of 2005 stipulates that when force
is used, the arrested person is examined by a physician and his/her health at the moment of arrest
is documented.
Turkey: chapter 23 – Judiciary and fundamental rights
18
As regards detention, Article 91 of the Criminal Procedure Code provides that the detention
period shall not exceed 24 hours, excluding the time necessary for transfer to the judge or court
closest to the place of arrest; the latter shall not exceed 12 hours. The By-law on Arrest, Detention
and Statement Taking of 2005 foresees that if the matter is under the competence of the courts
that have jurisdiction over the crimes specified in paragraph 1 of Article 250 of the Criminal
Procedure Code, the detention period shall be up to 48 hours. A person is taken into custody only
if this is necessary for the investigation and there is circumstantial evidence suggesting that he/she
has committed an offence. In the case of a collective offence, when there are difficulties in
collecting evidence or where there is a large number of suspects, the prosecutor may give a
written order extending the detention period for up to 3 days provided that each time the extension
does not exceed 1 day. The By-law on Arrest, Detention and Statement Taking of 2005 foresees
that if the matter is under the competence of the courts that have jurisdiction over the crimes
specified in paragraph 1 of Article 250 of the Criminal Procedure Code, the detention period for
the persons arrested in regions under a state of emergency15 may be extended by up to 7 days
upon request of the prosecutor and with a court decision. The detained person may challenge his
detention and the judge shall decide within 24 hours from submission of the appeal. The
prosecutor inspects the detention and interrogation premises, the situation of detainees, the
reasons for, and duration of, the custody, and all records and procedures related to custody.
Relatives of, or persons designated by, the detainees are notified of the detention or extension of
the detention period without delay by order of the public prosecutor. The By-law on Arrest,
Detention and Statement Taking of 2005 stipulates that in case of health controls of the detainees,
the law enforcement officers carrying out the investigation and those taking the detainee to
medical examination should be different officers. Further, that if the physician finds indications of
torture, he/she reports immediately to the prosecutor. During the medical examination, the
physician and the detainee are alone within the context of the doctor-patient relationship. If the
physician evokes personal security concerns, a law enforcement officer may be present. In such a
case, a defence lawyer may also be present upon the request of the detainee. The Detention Room
Record Book includes information about the suspect’s identity, entry transactions, procedures
related to the suspect, and exit procedures. Amendments to the anti-terror law adopted in July
2006 provide that during detention period, the suspect's right to meet a defence lawyer may be
restricted for a period of 24 hours upon the prosecutor's request and judge's decision; however, his
statement cannot be taken during this period. The amendments also foresee that, in case of
findings and documents that the defence lawyer liaises with members of a terrorist organisation,
and upon the prosecutor's request and judge's decision, security officers may attend meetings
between suspects and their lawyers or check the documents the defence lawyer exchanges with
the suspect.
The Criminal Procedure Code describes the grounds for pre-trial detention; these are (a) evidence
that the accused may abscond; (b) behaviour of the suspect or accused that cause strong suspicion
for the possible eradication, hiding or changing of evidence, and (c) attempt to apply pressure on
witnesses, victims or other persons related to the offence. Further, the Code lists offences such as
genocide, intentional homicide, sexual assault, torture, etc. that may lead to pre-trial detention.
During the prosecution phase, the decision for pre-trial detention of the suspect is taken by the
judge of the criminal peace court upon request of the prosecution. During trial, the decision to
detain the accused is taken by the court upon request of the prosecution. The reasons for pre-trial
detention, extension of periods of such detention or rejection of requests for release should be
documented. The pre-trial detention can last for a period of up to 6 months. This may be extended
for a period of up to 4 months, when adequately justified. In cases falling within the jurisdiction
of the heavy criminal courts, pre-trial detention can last for a period of up to 2 years. Where there
are compelling reasons, this period may be extended for up to 1 year. The prosecutor or the
suspect may appeal decisions for judicial supervision. All orders for pre-trial detention or for
15 Currently, there are no regions under a state of emergency in Turkey.
Turkey: chapter 23 – Judiciary and fundamental rights
19
extension of such periods should be notified without delay, by order of a judge, to a relative of, or
a person designated by, the person under pre-trial detention. The Ministries of Justice, Interior and
the General Directorate for Security have issued Circulars to facilitate the implementation of the
new legislation.
•
Right to a fair trial
Article 36 of the Constitution safeguards the right to a fair trial. Article 37 stipulates that no one
may be tried by any judicial authority other than the legally designated court. Article 38 sets out
principles related to offences and penalties and, in particular, that the latter shall be prescribed by
law, that no one shall be considered guilty until proven guilty in a court of law, that findings
obtained through illegal methods shall not be considered as evidence in court, and that criminal
responsibility is personal. Article 138 deals with the independence of the courts; Article 139 with
the security of tenure of judges and public prosecutors; Article 140 with the profession of judges
and public prosecutors and, in particular, defines that all matters related to their career are
regulated by law in accordance with the principles of the independence of the courts and the
security of tenure of judges; Article 141 with the publicity of hearings and the justification of
verdicts and provides, in particular, that it is the duty of the judiciary to conclude trials as quickly
as possible and at minimum cost; and Article 142 provides that the establishment, functions and
jurisdiction of the courts, their functioning and trial procedures are prescribed by law.
The Civil Procedure Code includes provisions regarding the right to a fair trial in civil law.
Among others, that judges cannot reach a judgement without hearing both sides of a case; that
trials are held publicly except when decided otherwise in the interest of social morals or national
security; and that copies of the trial records are available to both sides and their lawyers. Article
465 of the Code defines that those who cannot afford court expenses without jeopardising their
families’ livelihood, and submit adequate evidence to support their case, benefit from legal aid.
Article 466 enumerates what this legal aid might include: temporary exemption from court
expenses; advance payment by the state of expenditures of witnesses and experts; exemption from
the deposit of court expenses; postponement of notification expenses; in case of need of a lawyer,
provision of a lawyer whose fees would be paid later; postponement of the fees and advance
payment of compulsory expenses by the state; temporary exemption from all stamp duties; and
temporary exemption from the fees and taxes for the documents that are issued by notaries. The
court decides on the granting of legal aid and can also review its decision on the basis of new
information. It is not possible for the party receiving legal aid to choose his or her lawyer. The
fees which are paid to the lawyers for legal assistance are based on minimum fee tariffs which are
lower than the fees a lawyer could charge otherwise. Foreign nationals applying for legal aid have
to prove that legal aid is provided to Turkish citizens in their countries of origin (principle of
reciprocity). Similar provisions apply for commercial and administrative law with respect to legal
aid.
In the framework of criminal law, as regards the fair and public hearing within a reasonable time,
the Criminal Procedure Code provides that hearings are open to the public except when decided
otherwise in the interest of social morals or national security. The Criminal Code provides for
prison sentences for attempting to unduly influence judicial bodies or a fair trial. Further, the
Criminal Procedure Code provides for the return of the indictment to the prosecutor when the trial
court, after having examined the indictment within 7 days from its submission, finds it
incomplete. The court, on this occasion, points to the omissions and errors of the indictment and
the investigation file. In this way, delays at the trial stage are avoided. Persons who consider that
they have suffered damage because they were not brought before the trial court or did not receive
a judgement within a reasonable period of time may claim compensation. As regards the
independent and impartial tribunals established by the law, the Law on the Establishment, Duties
and Jurisdiction of First Instance and Appeal Courts of Justice of 2004 provides for all such
Turkey: chapter 23 – Judiciary and fundamental rights
20
criminal and civil courts. The establishment, duties and jurisdiction of high courts (Constitutional
Court, Court of Cassation, Council of State, Court of Disputes) and administrative courts are
arranged by their special laws. As regards presumption of innocence, under the Criminal Code
prison sentences are foreseen for broadcasting images of persons causing them to be perceived as
guilty before a decision is reached by the court. As regards the prompt provision of information in
a language that the person understands, the Criminal Procedure Code provides that if the accused
or the victim does not speak Turkish adequately, during the hearing the essential points of the
prosecution and defence are interpreted to the accused or the victim by an interpreter appointed by
the court. These provisions also apply (a) during the investigation phase with the difference that,
in this case, the interpreter is appointed by the judge or the prosecutor and (b) in cases where the
accused or victim is handicapped. As regards the defence, the Criminal Procedure Code provides,
among other things, that the defence lawyer may, in principle, examine the full content of the file
during the investigation phase; and that the suspect or accused may meet or correspond with the
defence lawyer. With respect to trials
in absentia the Criminal Procedure Code specifies that,
without prejudice to exceptional conditions prescribed by law, trials are not conducted in the
absence of the accused. In general, all criminal procedure and court expenses are met by the state
budget; however, court costs are covered by the accused if he or she is sentenced to a penalty or
security measure. The only legal aid matter in this field is providing lawyers (legal assistance) for
the suspect, accused, victim or the complainant. The Criminal Procedure Code stipulates that
during statement taking or interrogation of the suspect or the accused, the latter is informed that
he/she has the right to appoint a lawyer and that the lawyer may be present during statement
taking or interrogation. A defence lawyer is appointed for the suspect or the accused if the latter
declares that he/she would wish to benefit from the services of a lawyer but is not in a position to
appoint one.
Minority rights and cultural rights
Under Article 10 of the Constitution all individuals are equal without any discrimination before
the law, irrespective of language, race, colour, gender, political opinion, philosophical belief,
religion and sect, or any such considerations; the state shall ensure that this equality exists in
practice. As per Article 67 of the Constitution, all Turkish citizens participate in the political
process on an equal footing. The Law on Political Parties prohibits discrimination on,
inter alia,
religious and racial grounds and safeguards the principle of equality before the law. Section III:
Protection of Minorities, Articles 38-45 of the Lausanne Treaty of 1923 contains the term non-
Muslim minority. Without prejudice to the provisions of this Treaty, Turkish authorities consider
Turkish citizens as individuals having equal rights before the law rather than individuals
belonging to the majority or minorities.
There are 196 places of worship, 42 maternal, primary and secondary schools, 5 hospitals and 9
newspapers belonging to non-Muslim minorities. Children learn their language and religion in
their minority schools. A Minority Issues Assessment Board, chaired by the Ministry of Interior
and composed of the representatives of the Ministries of Foreign Affairs, National Education and
other related institutions has been set up.
Without prejudice to the provisions of international treaties concerning the organisation of the
education of certain minorities, Article 42 of the Constitution provides that no language other than
Turkish shall be taught as mother tongue to Turkish citizens at educational institutions. The rules
to be followed by institutions conducting education in a foreign language are determined by law16.
16 Under Law 5580 of 2007 both foreign and Turkish citizens can attend
foreign schools. These existed at the time of
the signature of the Lausanne Treaty in 1923 and have since continued their operation. Courses are taught in
languages other than Turkish.
International private educational institutions provide education exclusively to
foreigners. They can be opened by foreign natural or legal persons or through a partnership of such persons with
Turkish natural or legal persons. The opening of such schools is free.
Minority schools are those schools of maternal,
Turkey: chapter 23 – Judiciary and fundamental rights
21
According to Article 63 of the Constitution, the state ensures the conservation of the historical,
cultural and natural assets and wealth.
The Law on the Establishment of Radio and Television Corporations and their Broadcasts
(Broadcasting Law) of 1994 provides that there may be broadcasts in languages and dialects used
traditionally by Turkish citizens in their daily lives and that such broadcasts shall not contradict
the territorial or national integrity of the country. The Radio and Television Supreme Council
(RTUK) determines, and supervises the implementation of, the principles and procedures for such
broadcasts. The By-law on Radio and Television Broadcasts in Different Languages and Dialects
traditionally used by Turkish citizens in their daily lives of 2004 stipulates that broadcasts shall be
for 5 hours per week without exceeding 60 minutes per day for radio channels, and 4 hours per
week without exceeding 45 minutes per day for television channels. RTUK decided on 30 May
2006 that broadcasts of music and cinematographic works can be made without any time limits
during the whole day. News, music, culture, public health, environment, economy, sport,
agriculture, etc. can be the subject of these broadcasts; on TV, programmes should be broadcast
with Turkish subtitles or followed by their translation into Turkish, and on radio programmes
should be followed by their translation into Turkish. This does not apply to music broadcasts.
The public broadcaster, Turkish Radio and Television Corporation (TRT), started on 7 June 2004
television and radio programmes on weekdays in Bosnian, Arabic, Circassian, Zaza and
Kirmanchi. To date, two private TV channels (Diyarbakir Gun TV and Diyarbakir Soz TV) and
one radio channel (Urfa Medya FM Radio) have obtained broadcasting authorisation and started
broadcasting on 26 March 200617.
The By-law on the learning of different languages and dialects traditionally used by Turkish
citizens in their daily lives of 2003 defines the conditions for learning such languages and dialects.
These can be learned only in private courses.
Measures against racism and xenophobia
Under Article 10 of the Constitution all individuals are equal without any discrimination before
the law irrespective of, among other things, race; the state has the obligation to ensure that this
equality exists in practice and that the administration acts in compliance with the principle of
equality before the law in all its proceedings. Article 122 of the Criminal Code provides for prison
sentences or fines for persons practising discrimination on grounds of, among other things, race.
According to Article 216 prison sentences are foreseen for persons that openly incite groups of the
population to breed enmity towards one another on grounds of, amongst other things, race, when
this might constitute a clear and imminent threat to public order; that openly denigrate part of the
population on grounds of, among other things, race; that openly denigrate the religious values of
part of the population and this act is likely to distort public peace. The above-mentioned
Broadcasting Law of 1994 provides that broadcasts shall not, in any manner, humiliate or insult
people for, among other things, their race and shall not encourage the use of violence or incite
feelings of racial hatred.
In addition to the judiciary, the Human Rights Presidency at the Office of the Prime Minister, the
Human Rights Provincial and Sub-provincial Boards, and the Human Rights Inquiry Commission
of the Parliament receive and review complaints of alleged racism; if sufficient ground is found,
they refer the cases for further processing.
primary and secondary education that operate under the relevant Articles of the Lausanne Treaty. They can be
attended by children of Turkish citizens who are members of non-Muslim minorities.
17 Diyarbakir Cagri FM obtained authorisation on 23 March and started broadcasting on 17 April 2007.
Turkey: chapter 23 – Judiciary and fundamental rights
22
Turkey is involved in the work of the OSCE in the field of promoting tolerance and non-
discrimination. A Turkish Ambassador nominated by the Turkish Government was appointed in
December 2004 as one of the three Personal Representatives of the OSCE Chairman-in-Office on
Combating Intolerance and Discrimination. Turkey also participates in the relevant work of the
COE. The Turkish authorities have stated that the country is supportive of the work of the
European Committee against Racism and Intolerance (ECRI) in its efforts to combat racism,
xenophobia, anti-Semitism and intolerance across Europe.
Aspects related to anti-discrimination on the grounds of race are dealt with in chapter 19 – Social
Policy and Employment.
The EU Fundamental Rights Agency
On 15 February 2007 the Council upon Commission proposal adopted Regulation (CE) N°
168/2007 establishing a European Agency for Fundamental Rights (FRA). The Agency came into
existence on 1 March 2007, replacing the European Monitoring Centre on Racism and
Xenophobia (EUMC).
The Agency will also be open for participation of candidate countries – including Turkey – as
observers, after a decision of the relevant Association Council, which will indicate in particular
the nature, extent and manner of this country's participation in the Agency's work, taking into
account the specific status of each country.
Protection of personal data
Under Article 20 of the Constitution everyone has the right to demand respect for his/her private
and family life and that the privacy of the individual or family life cannot be violated. Article 22
provides that everyone has the right to freedom of communication and that the secrecy of
communication is fundamental. Exceptions common to both Articles are foreseen on the basis of a
decision duly passed by a judge on the grounds of national security; public order; prevention of
crime; protection of public health and public morals; and, protection of the rights and freedoms of
the others. The Criminal Code stipulates prison sentences for any person who (a) unlawfully
records data relating to political, philosophical or religious beliefs of an individual, his/her racial
origin, ethical tendencies or health conditions; (b) delivers unlawfully data to another person,
publishes or acquires the same through illegal means; and (c) keeps within a defined system data
after the expiry of the legally prescribed period for its storage. The Criminal Procedure Code
stipulates that only the authorised judge is entitled to decide on whether or not a molecular genetic
examination will be conducted; the results thereof are qualified as personal data. The Law on the
Right of Access to Information provides for restrictions of this right when the information
concerns, among other things, privacy, private life or communication. The By-law on processing
of personal data and the protection of confidentiality in the telecommunication sector has been
adopted in order to, according to the Turkish authorities, harmonise the Turkish legal framework
with Directive 2002/58/EC.
Turkey has ratified the ECHR, signed in 1981 the Convention 108/81 for the Protection of
Individuals with regard to Automatic Processing of Personal Data, and in 2001 the Additional
Protocol to the Convention regarding supervisory authorities and trans-border data flows. The
Turkish authorities have stated that ratification of the last two instruments is under consideration.
II.d EU CITIZENS RIGHTS
Right to vote and stand as a candidate in elections to the European Parliament
Turkey: chapter 23 – Judiciary and fundamental rights
23
Under current arrangements, foreigners may vote in polling stations set up in the resident
embassies and consulates in Turkey for the elections in their home countries provided public order
is not violated, election campaigns are not conducted and voting takes place in the confines of
designated places. These conditions would apply with regard to participation of EU citizens in
elections to the European Parliament in the event a request is made. Implementation of this right
requires alignment of the current legislation.
Right to vote and stand as a candidate in municipal elections
The current Turkish legal framework provides that only Turkish citizens are eligible to vote and
stand as candidates in local elections. Implementation of this right requires alignment of the
current legislation.
Right to move and reside freely within the European Union
Citizens of Germany, France, Denmark, Sweden, Czech Republic, Greece, Finland, and
Luxembourg are exempt from obtaining a visa on their tourist visits to Turkey of up to 90 days.
There are no visa requirements for Latvian citizens for transit and for stay of up to 30 days per
semester. Citizens of other EU Member States travelling to Turkey may receive visas at the
Turkish border gates.
Passport Law (No 5682) and the Law on Residence and Travel of Aliens in Turkey (No 5683)
govern the movement and residence of aliens in the country. EU citizens may initially obtain a
three-year residence permit upon their arrival. These permits may be extended for five-year
periods and are issued on the following grounds: employment; studies; scientific research;
business contacts; family reunification; tourism and settlement; and, medical care. As of 2005,
180,000 foreigners were legal residents in Turkey. According to the above-mentioned law 5638,
the following professions are reserved for Turkish citizens: lawyer; security staff; customs broker;
customs counsellor assistant; stock exchange broker; professional tourist guide; manager of travel
agency; public notary; independent accountant, financial advisor, certified public accountant;
captain and seaman; board member of cooperative society; nurse; doctor; dentist; midwife; patient
care taker in hospital; pharmacist; private hospital manager; and veterinarian. EU citizens benefit
from the provisions of the Turkey-EU Association Council instruments on the basis of reciprocity.
Implementation of this right requires alignment of the current legislation.
Diplomatic
and
consular protection
Turkey is party to the Vienna Convention on Diplomatic Relations of 1961 and Vienna
Convention on Consular Relations of 1963. EU Member States may invoke provisions of these
two instruments to provide diplomatic and/or consular protection for their citizens. Foreign
diplomatic missions in Turkey may also request consular cooperation on the basis of bilateral
agreements concluded in this field. Implementation of this right requires alignment of the current
legislation.
III.
ASSESSMENT OF THE DEGREE OF ALIGNMENT AND IMPLEMENTING CAPACITY
III.a JUDICIARY
Independence
Articles 2, 9, 37, 138, 139, 140 and 142 of the Turkish Constitution, Law 2802 on Judges and
Prosecutors and Law 5235 on the Establishment of First Instance Courts and Courts of Appeal
provide for the independence of the judiciary.
Turkey: chapter 23 – Judiciary and fundamental rights
24
The composition of the High Council, described in part II of the report, is, however, not
representative of the judiciary as a whole: only senior members of the judiciary from the Court of
Cassation and the Council of State are members of this Council. While the presence of members
of the executive branch of government may be understandable for financial and administrative
matters, it is less clear why they have a right to vote on decisions relating to the careers of, or
disciplinary action against judges. Further to the publication in March 2006 of the indictment on
the Semdinli bombing18, which included accusations against the Land Forces Commander and
other high-ranking military commanders, the General Staff issued a statement criticising the
indictment and urging those bearing constitutional responsibility to take action. In April of the
same year the High Council dismissed the Semdinli prosecutor from office applying the highest
disciplinary sanction. The disproportionate character of this decision raised questions on the
independence of the High Council from other state institutions.
Finally, the judicial inspectors, who are responsible for evaluating the performance of judges and
prosecutors, are attached to the Ministry rather than the High Council. This is questionable to the
extent that the executive branch of government may thereby influence the factual basis of the
High Council decisions regarding the career of the members of the judiciary.
Impartiality
Articles 10 and 138 of the Turkish Constitution and a number of pieces of legislation (Law 2802
on Judges and Prosecutors, Law 3628 on Declaration of Assets, Fight against Bribery and
Corruption, the Criminal Code and the Civil and Criminal Procedure Codes) provide for the
impartiality of the judiciary. The adoption by the High Council of Judges and Public Prosecutors
of the Bangalore Principles of Judicial Conduct, together with the recognition of the Budapest
Principles adopted by the Conference of Prosecutors General of Europe, contributes to the
enhancement of judicial ethics.
Two Circulars issued in January 2006 by the Ministry of Justice on the Investigation and
Prosecution Procedures regarding Corruption Cases and on the Investigation and Prosecution
Procedures about Judges and Public Prosecutors facilitate the implementation of the above-
mentioned legislation. Efforts should be intensified in this direction.
Professionalism/Competence
The Judicial Academy and the Ministry of Justice provide extensive training on the new Penal
Code and the Criminal Procedure Code, on prevention of torture and ill-treatment, freedom of
expression and effectiveness of the judicial process. Training is also provided on foreign
languages and on EU and Human Rights law. This includes opportunities for training abroad.
The Judicial Academy should develop into a strong and independent training provider for the
whole of the judiciary, including at regional level. Emphasis should continue to be put on training
judges and prosecutors on Human Rights law and the law of the EU.
Efficiency
Considerable efforts have been made to ensure the efficiency of the judiciary. These concern the
budget available for the judiciary as a whole, the physical infrastructure both in terms of premises
and use of IT, and the enforcement of Court decisions. In addition, the Ministry has issued a
number of interpretative circulars in an effort to facilitate the implementation of the new Criminal
Procedure Code and of the Law on Enforcement of Sentences.
18 This bombing of November 2005 killed one person and injured others in the town of Semdinli in Southeast Turkey.
Turkey: chapter 23 – Judiciary and fundamental rights
25
These efforts should be sustained in particular in order to ensure consistent interpretation of legal
provisions related to human rights and fundamental freedoms by all judiciary authorities in line
with the ECHR and the case-law of the ECtHR; also, in order to complete criminal investigations
before the application of the statute of limitations, to decrease the number of pending cases and to
ensure a reasonable average trial period. Delays in filling the approximately 5,500 vacancies for
judges and prosecutors would have a negative impact on the efficiency of the judiciary in
particular given that both the workload and the average duration of trials have increased. Efforts
are also needed to complete the establishment of the regional intermediate courts of appeal.
Judicial
reform
A large volume of legislation has been introduced and projects have been launched relating to the
reform of the judiciary. All these efforts go in the right direction.
However, there is no overall National Reform Strategy for the Judiciary or a plan to implement
such a Strategy.
III.b ANTI-CORRUPTION POLICY
Policy and domestic institutions
Overall, corruption remains a serious problem in Turkey. The Turkish authorities have
acknowledged that corruption is a significant issue that has to be tackled. They have also declared
their readiness and commitment to combat it. However, anti-corruption policies are weak and the
country has no comprehensive anti-corruption strategy or a plan to implement such a strategy.
The administrative set-up dealing with corruption is fragmented and the authorities responsible
are weak. There is a need for better coordination and, preferably, for designation of a single body
with sufficient independence responsible for designing and monitoring the implementation of
strategies and measures by all relevant state institutions. This body should have the full political
support at the highest level of the Government.
The Parliament established two Inquiry Committees on gasoline smuggling and on illegal public
offerings that completed their work in 2006. Both cases showed a wide range of corruption
activities. Five Investigation Committees were also established at the end of 2003/beginning 2004
to look into corruption allegations and possible criminal responsibility of a former Prime Minister
and seven former Ministers. On the basis of the recommendations of these Investigation
Committees, Parliament approved that they be brought to justice.
Domestic
legal
framework
The legislative framework against corruption includes the Law on Declaration of Assets and the
Fight against Corruption, the Law on Access to Information, the Law on the Establishment of the
Civil Servants Ethics Board together with the Regulation on Principles of Ethical Behaviour of
Civil Servants. Legislation on financing and auditing of political parties needs to be improved.
The wide scope of parliamentary immunity is also a matter that has to be dealt with. Turkey
should ensure that the application of parliamentary immunity does not unduly restrict the
application of Turkey's criminal law on corruption in a way that the country cannot meet the
requirements of the 1997 Convention. Public awareness of corruption as a serious criminal
offence should be enhanced.
Efforts are needed to ensure consistent implementation of the legislation and its monitoring.
International legal framework and institutions
Turkey: chapter 23 – Judiciary and fundamental rights
26
Turkey has aligned itself with the major international instruments against corruption in the course
of the last few years.
Turkey should ensure consistent implementation of these instruments.
III.c FUNDAMENTAL RIGHTS
General
Overall, the Turkish legal framework includes a comprehensive set of guarantees of fundamental
rights. This legal framework should be further improved including in areas such as freedom of
expression, freedom of religion, right to property, and minority and cultural rights. Turkey is
encouraged to continue ratifying international human rights agreements.
Turkey has a considerable number of cases pending before the COE Committee of Ministers for
execution control regarding, among other things, actions of security forces and cases of freedom
of expression. Many of these cases are related to the events that took place against the background
of the fight against terrorism in the 1990s. Turkey has already taken a number of steps such as
introducing Article 90 of the Constitution acknowledging the precedence of international human
rights agreements over national legislation, new Criminal and Criminal Procedure Codes and the
Law on Compensation for those who sustained damage to their property in the Southeast of the
country. Despite difficulties faced by the State in the fight against terrorism, the means used in
this regard must respect Turkish obligations under the ECHR as clarified by the ECtHR. Full
execution of judgements of the ECtHR with regard to all provisions of the ECHR needs to be
ensured.
Implementation of legislation adopted is a key issue: overall, significant efforts need to be made
and Turkey needs to ensure a track record of continuous progress. These efforts should have
political support at the highest level. Turkey also needs to upgrade the human rights institutional
framework described in Part II of this report. The Human Rights Presidency combines a number
of functions: it provides human rights training to public officials, carries out research on human
rights issues, contributes to raising awareness and receives, examines and investigates allegations
of human rights violations. With respect to the latter function, which seems to be comparable to
that of an Ombudsman19, it lacks independence from the Government. In addition, it is not clear
how the Presidency and the Provincial and Sub-provincial Boards interface with the responsible
departments of the administration and of the prosecution in case of enquiries that might involve
disciplinary or penal consequences respectively. The Human Rights Advisory Board has not been
operating since the publication of a report on minority rights in Turkey in October 2004. This
report led to criminal proceedings being launched against the president and the vice-president of
the Board. The Parliamentary Human Rights Committee plays an active role in collecting
complaints on human rights violations and conducting fact-finding visits to the regions. It has no
legislative role and is, thus, not consulted on legislation affecting human rights.
Overall, the institutional framework is fragmented, has limited resources available and has had no
significant impact to date. Turkey needs to establish an independent, adequately resourced
national human rights institution in accordance with relevant UN principles, to monitor human
rights cases, including on the basis of sound statistical data, and to train law enforcement bodies
on human rights issues and investigation techniques.
19 Further to the adoption by the Parliament of the Law on Ombudsman on second reading after it was vetoed by the
President of the Republic, the latter applied to the Constitutional Court. The Court suspended the implementation of
the law on 1 November 2006 pending the Court's final decision on the appeal of the President. Under this draft law,
the Ombudsman handles petitions from natural and legal persons in relation to administrative acts.
Turkey: chapter 23 – Judiciary and fundamental rights
27
Finally, in addition to legal provisions and institutional structures, Turkish authorities need to
work in order to establish in the country an atmosphere of tolerance conducive to full respect of
fundamental rights. Whereas statements of high officials, in particular on the occasion of tragic
events such as those witnessed in the beginning of 200720, go in the right direction, there are
others relating, for instance, to minorities or religion, that do not. The education system also plays
a crucial role. If no action is taken to change the current atmosphere, the country runs the risk of a
repetition of the tragic events of early 2007 and of the ensuing
de facto restriction of fundamental
rights.
Human
rights
•
Right to life and to the integrity of the person
Articles 17 and 38 of the Constitution and the Criminal Code provide for the right to life. Articles
90, 91, 101 and 287 of the Turkish Criminal Code together with Article 75 of the Criminal
Procedure Code provide for the integrity of the person.
Although this right is generally respected, in some instances such as (a) extrajudicial killings not
properly investigated, (b) impunity from torture, and (c) crimes in the name of honour and
suicides committed by women that are not always properly investigated, Turkey falls short of its
positive obligation to investigate promptly and bring to justice perpetrators of acts, violating, thus,
the right to life and to the integrity of the person.
•
Prohibition of torture and inhuman or degrading treatment or punishment
Article 17 of the Constitution, Articles 94, 95 and 256 of the Criminal Code, and Articles 92 and
148 of the Criminal Procedure Code provide for the prohibition of torture and inhuman or
degrading treatment or punishment. The European Committee for the Prevention of Torture and
Inhuman or Degrading Treatment or Punishment (CPT) has acknowledged the good level of the
country's legislation. However, Turkey is expected to ratify the Optional Protocol to the UN
Convention against Torture (OPCAT) which provides for the establishment of independent
national mechanisms for the prevention of torture.
CPT has also acknowledged progress in practice. However, cases of ill-treatment continue to be
reported regularly especially outside detention centres. Further, there are reported cases of
impunity: the number of those brought to justice is insufficient and the trials of the alleged
perpetrators are often lengthy. This has led on occasions to dropping the cases due to the statute of
limitations.
As regards prison facilities, conditions have improved but progress should continue. Cases of ill-
treatment by prison staff have been reported. CPT has found that material conditions of detention
in F-type prisons are of a good standard but that communal activity programmes should be
developed and health care resources should be increased. A welcome development in this context
is that the Ministry of Justice through a Circular21 doubled from 5 to 10 hours a week the time
prisoners can meet and increased the number of prisoners interacting from 4 to 10 persons in
prison social facilities. Turkey needs to continue the implementation of its "zero-tolerance"
policy on torture, guarantee the independence of the Forensic Medicine Institute, strengthen the
efforts to implement the Istanbul Protocol22 throughout the country and continue efforts aimed at
improving prison conditions.
20 These include the killing of Hrant Dink in January 2007 and of three Protestant Christians in April 2007.
21 Dated 22 January 2007.
22
Istanbul Protocol: Manual on the effective investigation and documentation of torture and other cruel, inhuman or
degrading treatment or punishment, submitted to the UN Commissioner for Human Rights, August 1999.
Turkey: chapter 23 – Judiciary and fundamental rights
28
•
Prohibition of slavery, servitude, and forced or compulsory labour
Article 18 of the Constitution and Article 117 of the Criminal Code provide for the prohibition of
slavery, servitude, and forced or compulsory labour.
No significant problems in relation to the prohibition of slavery, servitude, and forced or
compulsory labour have been reported in practice.
•
Respect for private and family life and communications
Articles 20, 21, 22 and 41 of the Constitution together with the Criminal Code provide for the
respect for private and family life and communications.
No significant problems in relation to the respect for private and family life and communications
have been reported in practice.
•
Right to marry and right to found a family
The Constitution and the Civil Code provide for the right of a man and a woman to marry and the
right to found a family.
No significant problems in relation to the right to marry and the right to found a family have been
reported in practice.
•
Freedom of thought, conscience and religion
Articles 24 and 25 of the Constitution together with the Civil Code provide for the freedom of
thought, conscience and religion. However, the current Turkish legal framework does not regulate
adequately the issue of conscientious objection and exposes those who refuse to perform their
military service on conscientious or religious grounds to the risk of repetitive and unlimited penal
sanctions. The cumulative effect of these sanctions has been found by the ECtHR23 to constitute
degrading treatment (violation of Article 3 of the Convention). Turkey should consider the
adoption of the necessary legislation24.
The mandatory indication of religious affiliation in some personal documents, such as ID-cards,
was abolished in April 2006; nevertheless, such documents still include an entry on religion,
leaving potential for discriminatory practices. Under ECtHR case-law, ID cards cannot be
considered a means to manifest one's religion and the removal of the entry on religion from these
cards complies with the ECHR.
Freedom of worship in Turkey is generally respected. However, non-Muslim religious
communities encounter difficulties in practice and Alevis face difficulties in opening their places
of worship (Cem houses). These are not recognised as places of worship and, thus, do not benefit
the way recognised places of worship do in terms of either financial benefits or authorisation of
their construction.
As outlined in Part II of this report, religious culture and moral education classes are compulsory
in the curricula of primary and secondary education and conducted under state supervision. This
23 See paragraphs 61 and 62 of final judgement
Ülke v. Turkey of 24 April 2006, application n° 39437/98.
24 The COE Committee of Ministers at its 997th (DH) meeting of June 2007, with regard to the
Ülke v. Turkey judgement of the ECtHR, noted that a draft law is being prepared, which, once adopted, would prevent repetitive
prosecutions and convictions of those who refuse to perform military service for conscientious or religious reasons on
grounds of persistent disobedience of military orders. The Committee plans to examine the issue at its October 2007
meeting in the light of the information to be provided on the adoption of the draft law.
Turkey: chapter 23 – Judiciary and fundamental rights
29
religious instruction fails to acknowledge the specificity of the Alevi children. Children belonging
to the non-Muslim religious communities receive religious education in the framework of the
minority schools (for detail see text under Minority Rights in Part II of this report). However,
currently, there is no religious higher education in the country for the non-Muslim minorities:
there are no such possibilities within universities and Turkish legislation does not provide for
private higher religious education. As a consequence, non-Muslim religious communities cannot
train their clergy in Turkey. The Greek Orthodox Halki (Heybeliada) seminary has remained
closed since 1971. Turkey needs to ensure that, within the country's education system, appropriate
and adequate religious education and training can be provided to the non-Muslim religious
communities including training of their clergy; this would also help sustain these communities
beyond the current generation. In this context, the re-opening of the Halki seminary would lead to
Turkey meeting this obligation as regards the Greek Orthodox community.
According to the Turkish authorities, foreign clergy can work in the country and facilitated
procedures are applied for the award of work visas to clergy from EU Member States; hundred
and twenty two (122) foreign clergy worked in Turkey in 200625. However, administrative
difficulties have been reported with respect to the ability of foreign clergy to work in the country
or to be elected as heads of their religious communities. Turkey needs to treat equally Turkish and
foreign nationals as regards their ability to exercise the right to freedom of religion through
participation in the life of organised religious communities in accordance with the ECHR and the
case-law of the ECtHR26.
Turkey does not recognise religious communities as organised structures of religious groups. The
Ecumenical and the Armenian Patriarchates, together with other non-Muslim religious
communities, continue to seek granting of legal personality. Turkey needs to ensure that non-
Muslim religious communities can acquire legal personality and exercise their rights in
accordance with the ECHR and the case-law of the ECtHR (
for further detail see text under
Freedom of Association in Part III of this report). The Greek Orthodox Patriarchate continues to
request the public use of the ecclesiastical title of Ecumenical. Although there is no Turkish legal
provision banning the use of the title, Turkish officials and the media do not use it. The
Patriarchate uses the title
Fener Rum Patrikhanesi for correspondence with the Turkish authorities
and Ecumenical Patriarchate for other purposes. This situation must not result in practical
interference with the rights guaranteed under the ECHR and in particular freedom of religion and
freedom of association and the Patriarchate should be free to use the ecclesiastical title
Ecumenical.
•
Freedom of expression including freedom and pluralism of the media
Article 26 of the Constitution provides for freedom of expression and Article 28 for freedom of
the media. Overall, despite the intensification of the debate in recent years in Turkish society on a
wide range of issues, freedom of expression is not fully guaranteed by the present legal
framework as described in Part II of this Report and its implementation. Turkey needs to ensure
the exercise of the freedom of expression, including the freedom of the press, in line with the
ECHR and the case-law of the ECtHR.
There have been a number of prosecutions and convictions for the expression of non-violent
opinions under provisions restricting freedom of expression of the Penal Code but also of the
press law, the anti-terror law and other pieces of legislation. Indictments raised in 2006 are almost
25 According to information provided by Turkish authorities in January 2007, the breakdown of the 122 foreign clergy
is as follows: 56 from Italy, 18 from France, 16 from the USA, 6 from Austria, 4 from Romania, Sweden and Iraq
each, 3 from Germany, 1 from Greece, etc.
26 ECtHR judgement,
The Moscow Branch of the Salvation Army v. Russia, Application N° 72881/01, 5 October
2006.
Turkey: chapter 23 – Judiciary and fundamental rights
30
double those raised in 2005. More than half of these indictments were raised under the Criminal
Code; Article 301 of the Code which penalises insulting Turkishness, the Republic as well as the
organs and institutions of the state has been used as the legal basis for almost two thirds of the
indictments raised under the Criminal Code. Although this Article includes a provision that
expression of thought intended to criticise should not constitute a crime, it is used to prosecute
non-violent opinions; this, together with threats received by journalists, writers, publishers,
academics and human rights activists creates an atmosphere which is not conducive to exercising
freedom of expression and may contribute to self-censorship. The General Assemblies of the Civil
and Penal Chambers of the Court of Cassation established restrictive jurisprudence on Article 301
by confirming a six-month suspended prison sentence for journalist Hrant Dink27 for insulting
Turkishness on a series of articles he wrote on Armenian issues. Article 301 has been used to
prosecute expression of opinion on, among other things, Armenian and Kurdish issues and the
role of the military. Articles 215, 216, 217 and 220 criminalising offences against public peace
have been used in relation to Kurdish issues. Given that under the new anti-terror legislation the
list of what constitutes a terrorist offence has been extended and a wide definition of terrorism
maintained, there is a risk of a negative impact of this new law on freedom of expression.
Legislation limiting the freedom of expression needs to be brought into line with European
standards. Turkey needs to ensure the follow-up and improvement of the situation in both
legislation and practice.
•
Freedom of assembly and association, including freedom to form political parties,
the right to establish trade unions
As regards freedom of assembly, Article 34 of the Constitution provides for the right to hold
peaceful meetings and demonstration marches. Law 2911 on Assemblies and Demonstration
Marches reiterates the right to freedom of assembly and provides for prior notification
requirements.
In practice, public demonstrations are subject to fewer restrictions than in the past. Nevertheless,
there are cases when security forces use excessive force, especially when the demonstrations were
carried out without permission. Following such incidents, there have been cases where
administrative investigations have been completed and penalties imposed. However, this is still
not the standard pattern and there are cases of investigations which are not completed in a
reasonable period of time. This reinforces the feeling of impunity. Turkish authorities need to
ensure that all such reported cases are investigated and tried properly.
As regards freedom of association, Article 33 of the Constitution provides for the right to form an
association.
Civil society organisations have become more vocal and better organised. There is an increased
variety of organisations in Turkey including approximately 80,000 registered associations, and
several hundred unions and chambers. This includes vocational and professional associations such
as YARSAV, an association of judges and prosecutors. However, the requirement to notify the
authorities in each case of receipt of funds from abroad results in difficulties and cumbersome
procedures for NGOs. Furthermore, unlike associations, foundations still need permission before
applying for projects outside Turkey which are funded by international organisations. Some
difficulties related to the registration of associations remain. A Court in Diyarbakir ordered the
closure of a Kurdish association on the grounds that its statute included the objectives of setting
up a Kurdish archive, museum and library and that its activities would be carried out also in
Kurdish language; these were found to violate provisions of the Law on Associations and of the
27 Hrant Dink was assassinated in January 2007.
Turkey: chapter 23 – Judiciary and fundamental rights
31
Constitution. As regards gay and lesbian associations, these have encountered fewer difficulties
than in the past but are occasionally subject to court proceedings.
Foundations and associations are of importance to religious communities. Foundations can be
established under Article 101 of the Civil Code as propertied communities with legal personality.
Paragraph 4 of the Article prohibits, among other things, the establishment of religious
foundations, i.e. foundations aiming at meeting religious needs of communities. This prohibition
has been confirmed by Turkish Courts. In practice, foundations are usually limited to managing
property of religious communities. As outlined in Part II of this report,
associations can be
established under the Law on Associations of 2004 and their establishment may be restricted by
law on grounds of protecting national security and public order, public morals and public health or
preventing the commission of crimes. These restrictions are included in Article 30 of the Law on
Associations of 2004. Article 30 has replaced Article 5 of the previous law on associations which
prohibited explicitly the establishment of religious associations. This has been a positive
development. Five religious associations have been established to date. Further to disagreement
on its statute with the Turkish administration, the registration of another association with openly
religious purpose in its statute is currently being examined by the Courts. This case might be a test
case on whether religious communities can establish associations under the current legal
framework and have, thus, legal personality.
As regards political parties, despite some alignment of the Turkish Law on Establishment of
Political Parties with EU standards, parties are not allowed to use languages other than Turkish.
Turkey needs to amend further the Law on Political Parties to ensure that these are permitted to
operate in line with the standards established by Article 11 of the ECHR and the case law of the
ECtHR28.
•
Treatment of socially vulnerable and disabled persons and the principle of non-
discrimination
Article 10 of the Constitution together with the Criminal Code provide for the prohibition of
discrimination. Turkey has not ratified Protocol No 12 to the ECHR on the general prohibition of
discrimination by public authorities.
Efforts to revise curricula and textbooks (described in Part II of this report under Right to
Education) such that, among other things, discriminatory language is eliminated, should be
continued and strengthened.
•
Right to education
Article 42 of the Constitution and the Basic Law on National Education of 1973 provide for the
right to education for all regardless of language, race, religion or gender.
However, in practice access to education of children, particularly girls, remains a problem despite
progress achieved to date. Efforts should be sustained to improve access to education in particular
for girls and in the areas of the East and Southeast of the country where schooling rates are the
lowest.
•
Right to property
28 On 3 May 2007, in the case
DKP and Elçi v. Turkey, the ECtHR concluded unanimously that there had been a
violation of Article 11 of the ECHR (freedom of association) noting that DKP's programme contained an analysis of
the Kurdish question in Turkey and criticism of the manner in which the Government was fighting against separatist
activities. The Court accepted that the principles defended by the DKP were not, as such, contrary to the fundamental
principles of democracy as the DKP did not seek to justify the use of force for political ends.
Turkey: chapter 23 – Judiciary and fundamental rights
32
Article 35 of the Constitution together with the Civil Code provides for the right to property. The
draft Law on Foundations, once adopted and enforced, would provide solutions to a number of
problems - outlined in part II of this report - involving non-Muslim communities. In any case, the
current draft does not provide for, among other things, compensation for properties confiscated
since 1974 and which were then sold to third parties. Turkey needs to adopt legislation on
foundations in line with the ECHR and the case law of the ECtHR.
Under Article 35 of the Land Registry Law29, foreigners can inherit property in Turkey provided
the condition of reciprocity is met. In order to comply with the principle of legality under Article
1 of the First Additional Protocol to ECHR, the application of this law should be based on the
substantiated existence (or otherwise) of the right of Turkish citizens to inherit property in EU
Member States30.
•
Gender equality and women's rights
Article 10 of the Constitution, the Penal and Civil Codes, the Law on the Protection of Family of
1998 and the Municipality Law of 2005 provide for gender equality.
However, despite this satisfactory legal framework, the efforts undertaken by the authorities to
deal with the situation (outlined in Part II of this report and including the Prime Minister's
Circular on measures for the prevention of violence against women, training of police, etc.) and
the growing public attention to women’s rights, the latter are not fully respected in practice,
particularly in the poorest areas of the country. The level of participation of women in the
parliament and in local representative bodies remains very low. Despite the provisions in the new
Penal Code that lists moral/custom killings as an aggravating circumstance for the crime of
murder, sentences issued by courts reflect a mixed picture. Crimes in the name of honour and
suicides committed by women due to the influence of the family continue to occur, especially in
the regions of the East and the Southeast of the country. These crimes are not always properly
investigated. There is still a lack of reliable data, in particular of data further to the adoption of the
new Penal Code, on such crimes as well as domestic violence more generally. The provisions of
the Law on Municipalities, in particular on shelters, are not yet fully implemented and
municipalities do not have the necessary financial resources. In parts of the East and the
Southeast, girls are not always registered at birth. This hampers the fight against under-age and
forced marriages and crimes in the name of honour since these girls and women cannot be
properly traced. Women remain vulnerable to discriminatory practices, due largely to a lack of
education and a high illiteracy rate despite the positive results achieved through the campaigns
organised by the authorities, UNICEF and the private sector. Turkey needs to tackle these
problems and implement existing legislation effectively. Enforcement of existing provisions on
gender equality should be assisted by sound gender-segregated statistical indicators.
As regards institutional capacity, the Directorate General for the Status of Women suffers from a
lack of staff. The Consultative Committee on Women's Status has not convened for a long period
of time. The institutional framework needs to be strengthened and given a higher profile such that
it can perform its tasks and the gender mainstreaming approach becomes effective.
•
Rights of the child
The Turkish Criminal Code, the Criminal Procedure Code and the Child Protection Law of 2005
provide for the rights of the child. The Child Protection Law extended the competence of juvenile
courts to cases relating to offences committed by children under the age of 18 years whereas
29 This law has been amended by Law 5444 of 29 December 2005; reciprocity is kept also under the amendments.
30 ECtHR Case
Apostolidis and others v. Turkey, Judgement, Application N° 45628/99, 27 March 2007, paragraphs
72-78.
Turkey: chapter 23 – Judiciary and fundamental rights
33
previously the age limit was set at 15 years of age. This is in line with the UN Convention on the
Rights of the Child. However, the Anti-Terror Law extends the scope of High Penal Courts to
terrorist offences committed by minors31.
Despite efforts to implement existing legislation described in part II of the report, the issue of
street children and child poverty remain significant. In 2005, ill-treatment of children in an
orphanage of the Social Services and Child Protection Institution (SHCEK) in Malatya revealed
the shortcomings of the child protection system in the country. Allocation of adequate resources
remains critical for the successful implementation of Juvenile Courts throughout the country. The
specialisation of judicial personnel needs to be pursued as well as that of personnel assigned to
juvenile detention centres. Turkey needs to implement fully the UN Convention on the Rights of
the Child and the Child Protection Law of 2005.
Procedural
safeguards
•
Liberty and security
Article 19 of the Constitution, the Criminal Procedure Code and the By-law on Arrest, Detention
and Statement Taking provide for the right to liberty and security. It is welcome that Turkey
respects the right of those arrested or detained to be brought promptly before a judge by providing
strict time limits (48 hours / four days) at the constitutional level. Turkey has also provided for the
right of
habeas corpus during pre-trial detention and limited the period to a reasonable level of up
to six months. In that context it is of utmost importance that extensions of pre-trial detention are
carefully justified and can never be extended beyond the maximum period of two years.
Furthermore, the health controls on detainees need to be conducted properly and the right to
access to a lawyer safeguarded. The 2006 amendments to the anti-terror law reduce procedural
safeguards for suspects of terrorist offences.
In terms of implementation of the legal framework, the notification to a relative of a detained
person and the right of access to a lawyer are generally guaranteed in practice although not
applied uniformly. Medical examinations of persons in police or gendarmerie custody comply
with previous recommendations of the European Committee on the Prevention of Torture and
Inhuman or Degrading Treatment or Punishment (CPT). However, their confidentiality and
quality are not always ensured. Turkey needs to further work on the consistent implementation of
the legal framework on liberty and security throughout the country.
•
Right to a fair trial
Articles 36, 37, 38, 138, 139, 140, 141 and 142 of the Constitution and the relevant Codes
regulating the establishment and functioning of the Courts provide for the right to a fair trial in
Turkey. Trials are to be conducted in a reasonable time before independent and impartial tribunals
established by law. Turkey has provided good precautions to uphold the presumption of innocence
in criminal cases. It is positive that the accused is notified promptly of charges against him/her,
can choose a lawyer and may examine witnesses against him/her; also, that free of charge
interpretation is provided between Turkish and languages used by non-Turkish speaking citizens.
Legal assistance is provided; however, parties are not able to choose their lawyer and the low
level of fees paid by the state to lawyers might lead to a low quality of such assistance. It is
difficult to assess the functioning of the Turkish legislation in practice due to the lack of statistical
information about the number of cases in which legal assistance has been granted or its outcome.
31 Article 9 – Offences within the scope of this law shall be tried in Heavy Penal Courts mentioned in Article 250/1 of
Law 5271 of December 2004 regarding the Criminal Procedure Code. Cases filed against minors above 15 years of
age on account of such crimes shall be tried in these courts as well.
Turkey: chapter 23 – Judiciary and fundamental rights
34
As regards implementation, a number of issues discussed under the Efficiency of the Judiciary
may also have an impact on the individual right to fair trial. Furthermore, the rather new
possibility to cross-examine witnesses of the prosecution is sometimes met by resistance from
judges. Turkey needs to ensure that the right to defence is well accepted in its court-practice as an
essential element of the right to a fair trial.
Minority rights and cultural rights
Article 10 of the Turkish Constitution guarantees the equality of all individuals irrespective of
language, race, colour, gender, political opinion, philosophical belief, religion and sect, or any
such considerations; it provides that the state shall ensure this equality in practice. According to
the Turkish authorities, under the 1923 Treaty of Lausanne, minorities in Turkey consist
exclusively of the non-Muslim religious communities of Jews, Armenians and Greeks. Without
prejudice to this Treaty, the Turkish authorities consider Turkish citizens as individuals having
equal rights before the law rather than individuals belonging to the majority or minorities.
However, this approach that provides for full equality of all citizens should not prevent Turkey
from granting specific rights to certain Turkish citizens on the basis of their ethnic origin, religion,
language, so that they can preserve their identity. Turkey needs to ensure respect for and
protection of the language, culture, freedom of association, assembly and expression, freedom of
religion and effective participation in public life for all its citizens, irrespective of their
background or origin, in accordance with European standards.
Turkey is party to the International Covenant on Civil and Political Rights (ICCPR) whose Article
27 provides that persons belonging to ethnic, religious or linguistic minorities shall not be denied
the right to enjoy their own culture, to profess and practise their own religion or to use their own
language. However, Turkey has put a reservation to the Covenant which, among other things,
aims to reduce the scope of Article 27 to the minorities recognised by the 1923 Treaty of
Lausanne32. Lastly, Turkey has not signed the COE Framework Convention for the Protection of
National Minorities or the European Charter for Regional and Minority Languages.
The work of the OSCE High Commissioner on National Minorities (HCNM) has not been
followed up yet despite a number of visits. This follow-up should include language issues,
participation in public life and education for all citizens in the country irrespective of their
background or origin. This would facilitate Turkey’s further alignment with international
standards and best practice in EU Member States.
There are discriminatory provisions against Roma in the Law on Movements and Residence of
Aliens. Roma experience discriminatory treatment in access to adequate housing, education,
health and employment. There are forced evictions in the context of urban regeneration projects
that have led to their displacement. The Greek minority continues to encounter problems related
to education and property rights. The management of minority schools including the dual
presidency is an open issue. With respect to the islands of Gökceada (Imvros) and Bozcaada
(Tenedos), Turkey needs to provide detailed information on the protection of the rights of the
Greek minority, in particular the right to property and the right to education, and ensure that these
rights are respected according to European standards.
The permission granted to the two local TV and one radio channels in Diyarbakir and to one radio
in Sanliurfa to broadcast in Kurdish is accompanied with time restrictions with the exception of
32 Part of the reservation reads “The Republic of Turkey reserves the right to interpret and apply the provisions of
Article 27 of the ICCPR in accordance with the relevant provisions and rules of the Constitution of the Republic of
Turkey and the Treaty of Lausanne of 1923 and its Appendixes.” This reservation has been objected to by a number
of EU Member States which considered that Turkey is under the international obligation to apply minority rights not
only to the Lausanne minorities but to all its minorities.
Turkey: chapter 23 – Judiciary and fundamental rights
35
films and music programmes. Public educational programmes teaching Kurdish languages are not
allowed. The duration and scope of the Turkish Public Television TRT’s national broadcasts in
locally used languages are limited. Currently, there are no possibilities in practice to learn Kurdish
languages spoken in Turkey, because there are no private educational institutions providing such
courses and children whose mother tongue is not Turkish cannot learn their mother tongue in the
Turkish public school system. Furthermore, with the exception of the justice system, there are no
measures taken to facilitate access to public services for those who do not speak Turkish.
Measures against racism and xenophobia
Article 10 of the Constitution, Articles 122 and 216 of the Criminal Code, and the Broadcasting
Law of 1994 provide for a legal framework against racism and xenophobia. Apart from the above-
mentioned legislation, there are no specific legal measures prohibiting discrimination on grounds
of racial or ethnic origin outside the employment field. As regards implementation of legislation
and in order to prepare for accession, Turkey should monitor and evaluate the implementation of
its laws, including through the collection of data.
The EU Fundamental Rights Agency
The nature, extent and manner of Turkey's participation in the Agency's work will be decided by
the EU-Turkey Association Council.
Protection of personal data
Turkey needs to ratify the Convention for the Protection of Individuals with regard to Automatic
Processing of Personal Data and its Additional Protocol. Also, Turkey needs to adopt a general
law on the protection of personal data and, in that context, Turkey needs to set up a fully
independent data-protection supervisory authority as a key component of the institutional
framework for the enforcement of personal data protection rules.
III.d EU CITIZENS RIGHTS
Right to vote and stand as a candidate in elections to the European Parliament
Upon accession Turkey needs to have adopted legislation that would allow EU citizens to vote
and stand as candidates in elections to the European Parliament.
Right to vote and stand as a candidate in municipal elections
Upon accession Turkey needs to have adopted legislation that would allow EU citizens to vote
and stand as candidates in municipal elections.
Right to move and reside freely within the European Union
Upon accession Turkey needs to have adopted legislation that would allow EU citizens to move
and reside freely within Turkey.
Diplomatic
and
consular protection
Upon accession Turkey needs to have adopted legislation that would ensure for EU citizens access
to diplomatic and consular protection as foreseen by the
acquis.
Turkey: chapter 23 – Judiciary and fundamental rights
36
IV. CONCLUSIONS AND RECOMMENDATIONS
In view of the above, in particular the findings presented in Part III, Turkey cannot be considered
to be sufficiently prepared for negotiations on this chapter. Therefore, the Commission does not
recommend at this stage the opening of accession negotiations with Turkey on chapter 23 –
Judiciary and Fundamental Rights.
Specific gaps remain to be addressed in relation to the judiciary, anti-corruption and fundamental
rights. In view of the current situation as assessed above, it is recommended that this chapter be
opened for negotiations once the following benchmarks are met:
• Turkey provides the Commission with a Judicial Reform Strategy with a view to further
strengthening the independence, impartiality and efficiency of the judiciary. The Strategy
should outline concrete measures for ensuring the achievement of the objectives set. It
should also include the timeframe for implementation of the measures together with the
resources necessary and specify the bodies responsible for follow up and how their
effective coordination will be ensured.
• Turkey provides the Commission with an Anti-corruption Strategy with a view to
establishing an effective legal and institutional framework for further fighting corruption.
The Strategy should outline concrete measures for ensuring the achievement of the
objectives set and should include an analysis of the effectiveness of legislation on
financing of political parties and election campaigns in addressing corruption. It should
also include the timeframe for implementation of the measures together with the resources
necessary and specify the bodies responsible for follow up and how their effective
coordination will be ensured.
• Turkey provides the Commission with an Action Plan for the further implementation of
legislation on fundamental rights with a view to achieving full observance of these rights
in practice. The Action Plan should include measures that would ultimately secure the full
respect of the rights and freedoms guaranteed under the ECHR and the case-law of the
ECtHR including legislative measures, as necessary. Turkey should also provide evidence
of a track record of progress on fundamental rights.
• Turkey establishes both an Ombudsman system and an independent, adequately resourced
national human rights institution in accordance with relevant UN principles.
• Turkey revises its legislation on freedom of expression and on foundations in line with the
ECHR and the case law of the ECtHR.
• Turkey ratifies the Optional Protocol to the UN Convention against Torture (OPCAT).
Turkey: chapter 23 – Judiciary and fundamental rights
37
Document Outline