MESOP EU / TURKEY REPORT 2016 – COMMISSION STAFF WORKING DOCUMENT – Turkey 2016 Report Accompanying the document
Mezopotamian Development Society (Registered) GERMANY
EN EN EUROPEAN COMMISSION – Brussels, 9 November 2016
COMMISSION STAFF WORKING DOCUMENT – Turkey 2016 Report
Accompanying the document – Communication from the Commission to the European Parliament, the Council, the
European Economic and Social Committee and the Committee of the Regions
2016 Communication on EU Enlargement Policy 2
Table of Contents
- INTRODUCTION …………………………………………………………………………………………. 4
1.1. Context …………………………………………………………………………………………………… 4
1.2. Summary of the report ……………………………………………………………………………… 5
- POLITICAL CRITERIA AND ENHANCED POLITICAL DIALOGUE ……………… 8
2.1. Democracy ……………………………………………………………………………………………… 8
2.2. Public administration reform……………………………………………………………………. 14
2.3. Rule of law ……………………………………………………………………………………………. 17
2.4. Human rights and the protection of minorities …………………………………………… 24
2.5. Regional issues and international obligations …………………………………………….. 30
- ECONOMIC CRITERIA ………………………………………………………………………………. 31
3.1. The existence of a functioning market economy ………………………………………… 32
3.2. The capacity to cope with competitive pressure and market forces within the Union ………………………………………………………………………………………………………….. 37
- ABILITY TO ASSUME THE OBLIGATIONS OF MEMBERSHIP …………………. 40
4.1. Chapter 1: Free movement of goods …………………………………………………………. 40
4.2. Chapter 2: Freedom of movement for workers …………………………………………… 41
4.3. Chapter 3: Right of establishment and freedom to provide services ……………… 42
4.4. Chapter 4: Free movement of capital ………………………………………………………… 42
4.5. Chapter 5: Public Procurement ………………………………………………………………… 43
4.6. Chapter 6: Company law …………………………………………………………………………. 45
4.7. Chapter 7: Intellectual property law ………………………………………………………….. 45
4.8. Chapter 8: Competition policy …………………………………………………………………. 46
4.9. Chapter 9: Financial services …………………………………………………………………… 47
4.10. Chapter 10: Information society and media ……………………………………………… 48
4.11. Chapter 11: Agriculture and rural development ………………………………………… 49
4.12. Chapter 12: Food safety, veterinary and phytosanitary policy ……………………. 50
4.13. Chapter 13: Fisheries…………………………………………………………………………….. 51
4.14. Chapter 14: Transport policy …………………………………………………………………. 51
4.15. Chapter 15: Energy ………………………………………………………………………………. 53
4.16. Chapter 16: Taxation …………………………………………………………………………….. 55
4.17. Chapter 17: Economic and monetary policy …………………………………………….. 56
4.18. Chapter 18: Statistics…………………………………………………………………………….. 57
4.19. Chapter 19: Social policy and employment ……………………………………………… 58
4.20. Chapter 20: Enterprise and industrial policy …………………………………………….. 60
4.21. Chapter 21: Trans-European networks …………………………………………………….. 60
4.22. Chapter 22: Regional policy and the coordination of structural instruments …. 61
4.23. Chapter 23: Judiciary and fundamental rights ………………………………………….. 62
4.24. Chapter 24: Justice, freedom and security ……………………………………………….. 77
4.25. Chapter 25: Science and research …………………………………………………………… 85
4.26. Chapter 26: Education and culture ………………………………………………………….. 85
4.27. Chapter 27: Environment and climate change ………………………………………….. 86
4.28. Chapter 28: Health and consumer protection ……………………………………………. 88
4.29. Chapter 29: Customs union ……………………………………………………………………. 89
4.30. Chapter 30: External relations ………………………………………………………………… 90
4.31. Chapter 31: Foreign, security and defence policy ……………………………………… 91
4.32. Chapter 32: Financial control …………………………………………………………………. 92
4.33. Chapter 33: Financial and budgetary provisions ……………………………………….. 95 3
Annex I – Relations between the EU and Turkey ………………………………………………………….. 96
Annex II – Statistical Annex ………………………………………………………………………………………. 98 4
1 This report covers the period from October 2015 to September 2016. It is based on input from a variety of sources, including contributions from the government of Turkey, the EU Member States, European Parliament reports and information from various international and non-governmental organisations. As a rule, legislation or measures which are under preparation or awaiting parliamentary approval have not been taken into account.
Turkey remains a key partner for the European Union. Turkey has been linked to the EU by an Association Agreement since 1964 and a customs union was established in 1995. The European Council granted the status of candidate country to Turkey in December 1999 and accession negotiations were opened in October 2005. At the EU-Turkey Summit of 29 November 2015, the EU and Turkey decided to reinvigorate and deepen their relations in all key areas of joint interest.
The EU strongly and immediately condemned the attempted coup of 15 July 2016, which represented a direct attack on democracy in Turkey, and expressed its solidarity to the Turkish democratic institutions.
Given the subsequent scale and collective nature of measures taken since the coup attempt, the EU called on the authorities to observe the highest standards in respecting the rule of law and fundamental rights, in line with Turkey’s international commitments and status as a candidate country.
Within the framework of accession negotiations, 16 chapters have been opened so far and one of these was provisionally closed. The preparatory documents were submitted to the Council for chapters 15, 26 and 31, without prejudice to Member States’ positions in accordance with the existing rules. Preparatory documents for chapters 23 on judiciary and fundamental rights and 24 on justice, freedom and security are in the process of being finalised. Turkey can accelerate the pace of negotiations by advancing in the fulfilment of the benchmarks, meeting the requirements of the negotiating framework and by respecting its contractual obligations towards the EU.
The EU and Turkey continued to enhance dialogue and cooperation in the areas of joint interest, which support and complement the accession negotiations, including with a number of mutual visits at the highest level. Turkey and the EU enhanced their dialogue on foreign and security policy, including counter-terrorism, Syria, Libya and Iraq, notably on the occasion of two High Level Political Dialogues in January and September 2016. The fight against terrorism was recognised as a priority at the EU-Turkey Summit of 29 November 2015 and was also addressed at the EU-Turkey Counter-Terrorism Dialogue in June 2016, against the background of several large-scale deadly terrorist attacks by PKK and Da’esh and Turkey stepping up its involvement in the Global Coalition to Counter ISIL/Da’esh.
In this context, the cooperation on migration was stepped up on the basis of a Joint Action Plan activated at the EU-Turkey Summit of 29 November 2015 and following the EU-Turkey Statement of 18 March 2016, with the aim to end the irregular migration from Turkey to the EU, in full compliance with EU and international standards. The handling of the massive influx of mostly Syrian refugees has continued to be a priority issue for the Turkish authorities, with outstanding efforts to provide shelter to about 3 million refugees from Syria, Iraq and other countries, by dedicating significant financial resources and by broadening the legislation on temporary protection and enabling access to the labour market. Significant steps have been taken to decrease deaths at sea and reduce the numbers of migrants leaving Turkey for Greece. Turkey accelerated work on fulfilling the benchmarks of the visa liberalisation roadmap. Visa requirements will be lifted once Turkey meets all benchmarks. The EU’s Facility for Refugees in Turkey became operational in February 2016. Out of EUR 3 billion of the total funding for 5
2016 and 2017, EUR 2.2 billion have already been allocated for actions in support of refugees and host communities in Turkey, of which 1.2 billion have been contracted and 677 million have been disbursed.
Turkey and the EU further developed their cooperation in the areas of energy and economy and trade, supported by high level dialogues. Both sides advanced their preparations for negotiation on the modernisation and extension of the Customs Union.
1.2. Summary of the report
A military coup attempt on the night of 15 July left 241 casualties and 2 196 people wounded. The Turkish government with the support of the entire Turkish political spectrum and society, succeeded in overcoming the coup attempt. The Turkish Grand National Assembly symbolically held a special session already on 16 July and adopted a declaration approved by all parties represented in Parliament. The government attributed the organisation of the coup attempt to the Gülen movement.
The EU strongly and immediately condemned the attempted coup, which represented a direct attack on democracy in Turkey as such, and reiterated its full support to the democratic institutions of the country.
On 20 July a state of emergency was declared across Turkey for three months, further extended for another three months on 3 October. Significant legislative amendments were introduced by decree. Turkey notified the Council of Europe of a derogation from its obligation to secure a number of fundamental rights protected by the European Convention on Human Rights. Following the coup attempt, very extensive suspensions, dismissals, arrests and detentions took place over alleged links to the Gülen movement and involvement in the attempted coup. The measures affected the whole spectrum of society with particular impact on the judiciary, police, gendarmerie, military, civil service, local authorities, academia, teachers, lawyers, the media and the business community. Multiple institutions and private companies were shut down, their assets seized or transferred to public institutions.
In the wake of the post-coup measures, the EU called on the authorities to observe the highest standards in the rule of law and fundamental rights. While a relationship of trust and loyalty should exist between civil servants and the state and measures can be taken to ensure that, any allegation of wrongdoing should be established via transparent procedures in all individual cases. Individual criminal liability can only be established with full respect for the separation of powers, the full independence of the judiciary and the right of every individual to a fair trial, including through effective access to a lawyer. Turkey should ensure that any measure is taken only to the extent strictly required to the exigencies of the situation and in all cases stands the test of necessity and proportionality. The measures taken under the state of emergency are undergoing scrutiny by the Council of Europe. Turkey should urgently address the recommendations of the Commissioner for Human Rights of the Council of Europe of October 2016.
With regard to the political criteria, prior to the coup attempt the Parliament engaged in a heavy legislative agenda in order to implement the ambitious government reform action plan for 2016 and the legislative requirements of the visa liberalisation roadmap. However, several key pieces of legislation adopted regarding the rule of law and fundamental rights were not in line with European standards, such as the law on data protection. Political confrontation continued to beset the work of the legislative. The adoption in May of a law allowing the immunity of a large number of deputies to be lifted and the ensuing detentions and arrests of several HDP Members of Parliament, including the two Co-Chairs, in November is a matter of grave concern.
The situation in the south-east remained one of the most critical challenges for the country. Turkey saw a continued very serious deterioration in the security situation, leading to heavy 6
casualties following the collapse of the Kurdish settlement process in July 2015 and was struck by several large-scale deadly terrorist attacks by PKK and Da’esh. The authorities pursued their extensive anti-terror military and security campaign against the Kurdistan Workers’ Party (PKK), which remains on the EU list of terrorist organisations. Serious allegations of human rights violations and disproportionate use of force by the security forces in the south-east were increasingly reported. Many elected representatives and municipal executives in the south-east were suspended, removed from their duties, or arrested under terrorism-related charges, some of them on the basis of decrees under the state of emergency following the coup attempt. However, anti-terror measures need to be proportionate and must respect human rights. The settlement of the Kurdish issue through a political process is the only way forward; reconciliation and reconstruction are also becoming key issues for the authorities to address.
Civil society made what efforts it could to remain active and involved in public life. Independent civil society organisations are rarely involved in law- and policy-making processes. Some of their representatives, including human rights defenders, have been detained and there were credible claims of intimidation. A large number of organisations were closed as part of the post-coup measures taken by the government for alleged links to the Gülen movement.
Turkey is moderately prepared in the area of public administration reform with a strong commitment to an open, responsive administration. However, there has been backsliding in the area of public service and human resources management in particular in the aftermath of the coup attempt. The structural impact on the functioning of the civil service of the measures taken after the coup attempt remains to be assessed.
Turkey’s judicial system is at an early stage/has some level of preparation. There has been backsliding in the past year, in particular with regard to the independence of the judiciary. The extensive changes to the structures and composition of high courts are of serious concern and are not in line with European standards. Judges and prosecutors continued to be removed from their profession and in some cases were arrested, on allegations of conspiring with the Gülen movement. This situation worsened further after the July coup attempt, following which one fifth of the judges and prosecutors were dismissed and saw their assets frozen. The judiciary must work in an environment allowing it to perform its duties in an independent and impartial manner, with the executive and legislature fully respecting the separation of powers. Under the state of emergency, Turkey has further extended for certain offences the pre-trial detention to 30 days without access to a judge against ECtHR case law and an important part of the judiciary is subject to these measures.
The country has some level of preparation for the fight against corruption. Corruption remains prevalent in many areas and continues to be a serious problem. The adoption of a new strategy and anti-corruption action plan is a step forward even if it remains rather limited in scope. The legal framework continues to suffer from important gaps and the executive’s influence on the investigation and prosecution of high-profile corruption cases remains a major source of concern. Corruption perception remains high.
Turkey has achieved some level of preparation in the fight against organised crime. Institutional capacity was increased and new strategies and action plans were adopted. However, statistics on the number of final convictions and other important indicators are not available. Financial investigations remain underused. Precautionary freezing of assets is rarely applied and the level of assets confiscated is low. In the fight against terrorism, a comprehensive legal framework on terrorism financing is in place. The anti-terror law is not in line with the acquis with regard to its scope and definitions and its application raises serious fundamental rights concerns. Both the criminal and anti-terror legislation should be aligned with ECtHR case-law, without reducing the capacity of Turkey to fight terrorism. The proportionality principle must be observed in practice. 7
The Turkish legal framework includes general guarantees of respect for human and fundamental rights, which need to be further improved. The enforcement of rights stemming from the European Convention on Human Rights (ECHR) and the case-law of the European Court of Human Rights (ECtHR) is not yet ensured. Many allegations of serious violations of the prohibition of torture and ill-treatment and of procedural rights were reported in the immediate aftermath of the coup attempt. Yet, all measures taken must be in line with the principles of proportionality and respect for human rights. The new Law on the Human Rights and Equality Institution of Turkey is a step in the right direction. It contains provisions on prohibiting discrimination on a large number of grounds, but does not explicitly cover sexual orientation. There is still a need to adopt a fully comprehensive dedicated law on combating discrimination. A legal vacuum exists on human rights cases as the new National Human Rights and Equality institution has not yet been established. The rights of the most vulnerable groups and of persons belonging to minorities should be sufficiently protected. Gender-based violence, discrimination, hate speech against minorities, hate crime and violations of human rights of lesbian, gay, bisexual, transgender and intersex (LGBTI) persons continue to be a source of a serious concern.
There has been serious backsliding in the past year in the area of freedom of expression. Selective and arbitrary application of the law, especially of the provisions on national security and the fight against terrorism, is having a negative impact on freedom of expression. Ongoing and new criminal cases against journalists, writers or social media users, withdrawal of accreditations, high numbers of arrests of journalists as well as closure of numerous media outlets in the aftermath of the July attempted coup are of serious concern. Freedom of assembly continues to be overly restricted, in law and practice.
Turkey continued to express support for the talks on the Cyprus settlement between the leaders of the two communities, and for the efforts of the UN Secretary-General’s Special Adviser. Turkey’s commitment and contribution in concrete terms to this comprehensive settlement remains crucial. However, Turkey has still not fulfilled its obligation to ensure full and non-discriminatory implementation of the Additional Protocol to the Association Agreement and has not removed all obstacles to the free movement of goods, including restrictions on direct transport links with Cyprus. There was no progress on normalising bilateral relations with the Republic of Cyprus. The conclusions on Turkey that were adopted by the Council (General Affairs and External Relations) on 11 December 2006 and endorsed by the European Council in December 2006 remain in force. They stipulate that negotiations will not be opened on eight chapters2 relating to Turkey’s restrictions regarding the Republic of Cyprus and no chapter will be provisionally closed until the Commission confirms that Turkey has fully implemented the Additional Protocol to the Association Agreement.
2Free movement of goods, right of establishment and freedom to provide services, financial services, agriculture and rural development, fisheries, transport policy, customs union, and external relations.
Turkey needs to commit itself unequivocally to good neighbourly relations, international agreements, and to the peaceful settlement of disputes in accordance with the United Nations Charter, having recourse, if necessary, to the International Court of Justice. In this context, the EU has expressed once again serious concern and urged Turkey to avoid any kind of threat or action directed against a Member State, or source of friction or actions that damages good neighbourly relations and the peaceful settlement of disputes.
Regarding the economic criteria, the Turkish economy is well advanced and can be considered a functioning market economy. Still, the large external deficit makes the Turkish economy vulnerable to financial uncertainty, changes in global investors’ sentiment and political risks. The central bank cut interest rates even though inflation remained well above the official target. The business environment continued to deteriorate due to targeted actions against critical media and business people and political opponents through the active use of the tax authority, the 8
financial crimes unit and courts. The implementation of structural reforms to improve the functioning of the markets for goods, services and labour has stalled. Overall, there was backsliding.
Turkey has a good level of preparation in achieving the capacity to cope with the competitive pressure and market forces within the EU. Some progress was made in a number of areas, most notably through further liberalising the energy sector. Significant problems remain as regards the quality of education. There are also problems of access to education for girls. The lira’s real appreciation has reduced the economy’s price competitiveness.
Regarding its ability to assume the obligations of membership, Turkey has continued to align with the acquis. With the positive exception of the visa liberalisation related work, efforts continued at a limited pace. Turkey is well advanced in the areas of company law, trans-European networks and science and research and it has achieved a good level of preparation in the areas of free movement of goods, intellectual property law, financial services, enterprise and industrial policy, consumer and health protection, customs union, external relations and financial control. Turkey is only moderately prepared on public procurement as important gaps remain in its alignment. Turkey is also moderately prepared in the area of statistics and transport policy where further significant efforts are needed across the board. Turkey has only reached some level of preparation in environment and climate change where more ambitious and better coordinated policies still need to be established and implemented. In all areas, more attention needs to be given to enforce legislation whilst many areas require further significant progress to achieve legislative alignment with the EU acquis.
- POLITICAL CRITERIA AND ENHANCED POLITICAL DIALOGUE
Attempted coup of 15 July
A military coup attempt began on the evening of 15 July and was aborted the following day, leaving 241 casualties and 2 196 people wounded. There were heavy clashes in Ankara and Istanbul with several locations hit by airstrikes, including a direct attack on the Turkish Grand National Assembly. The coup failed thanks to large parts of the security forces and the army that remained loyal to the government, backed by hundreds of thousands of civilians who opposed the rebel soldiers in the streets and squares across the country, following calls from President Recep Tayyip Erdoğan. The Turkish Grand National Assembly symbolically convened a special session already in the night from 15 to16 July and adopted a declaration approved by all parties represented in Parliament. The government attributed the organisation of the attempted coup to the Gülen movement.
The EU strongly and immediately condemned the attempted coup, which represented a direct attack on democracy in Turkey as such, and reiterated its full support to the democratic institutions of the country.
On 20 July a state of emergency was declared across Turkey for three months, further extended for another three months on 3 October. On 21 July, Turkey notified the Council of Europe of a derogation from its obligation to secure a number of fundamental rights protected by the European Convention on Human Rights (ECHR), in line with the provisions of Article 15. The Turkish Constitution however lists inviolable rights that cannot be suspended under the state of emergency, including the right to life, integrity of corporal and spiritual existence, protection from retroactive criminal laws, and the presumption of innocence. The state of emergency allows the Council of Ministers under the chairmanship of the President to govern by legislative decree. Ten decrees have been issued so far. They introduced a wide range of measures including extending the pre-trial detention period to 30 days for a number of 9 offences, closure and seizure of institutions and media outlets, dismissals in the military and the civil service for suspected links to the Gülen movement, substantive reorganisation of the Turkish armed forces, the police, the gendarmerie and the military academies, changes to the appointment procedure of university rectors, as well as important restrictions to the right of defence. They introduced amendments to key pieces of legislation which will continue to produce effects beyond the state of emergency.
In the wake of the post-coup measures, the EU called on the authorities to observe the highest standards in the rule of law and fundamental rights. While a swift reaction to that imminent threat against the Turkish state and its democracy was legitimate, the decrees raise questions as to the proportionality of the measures taken and the access to and effectiveness of judicial remedies. They also affect key rights under the ECHR, in particular the right to a fair trial, the right to an effective remedy and the right to protection of property.
Following the attempted coup, very extensive suspensions, dismissals and arrests took place over alleged links to the Gülen movement and involvement in the attempted coup. There were reports of serious human rights violations, including alleged widespread ill-treatment and torture of detainees. The crackdown has continued since and has been broadened to pro-Kurdish and other opposition voices. The measures affected the whole spectrum of society, with a particular impact on the judiciary, police, gendarmerie, military, civil service, local authorities, academia, teachers, lawyers, the media and the business community. Overall, as of the end of September 2016, some 40 000 people had been detained and more than 31 000 remain under arrest, including 81 journalists. 129 000 public employees remain either suspended (66 000) or have been dismissed (63 000). Over 4 000 institutions and private companies were shut down, their assets seized or transferred to public institutions. Additional 10 000 civil servants were dismissed by decrees under the state of emergency at the end of October and further media outlets closed and journalists detained. Turkey also reached out to a number EU Member States concerning, for example the closing of schools and other institutions allegedly linked to the Gülen movement. In this context, there are reports of members of the Turkish diaspora living in these Member States being under pressure to report on other members of these communities.
The broad scale and collective nature of these measures raised a number of very serious questions. There are serious concerns with regard to the vagueness of the criteria applied and evidence used for determining alleged links to the Gülen movement and establishing individual liability, applied in a non- transparent and indiscriminate manner, leading to a perception of ‘guilt by association’. While a relationship of trust and loyalty should exist between civil servants and the state and measures can be taken to ensure that, any allegation of wrongdoing should be established via transparent procedures in all individual cases and ensure the right to respect for private and family life. It is important that the recently created ad hoc appeal commission becomes an effective administrative review mechanism for suspended or dismissed civil servants. Furthermore, any individual criminal liability must be examined with due process, full respect for the separation of powers and the full independence of the judiciary. The right of every individual to a fair trial, including through effective access to a lawyer, is a central element of the rule of law.
The measures taken under the state of emergency are undergoing scrutiny by the Council of Europe. Turkey should urgently address the recommendations of the Commissioner for Human Rights of the Council of Europe of October 2016. Turkey should ensure that any measure is taken only to the extent strictly required to the exigencies of the situation and in all cases stands the test of necessity and proportionality. Turkey should pay particular attention so as to ensure in all cases that basic principles governing the rule of law are not set aside, including the full respect of the presumption of innocence, the individual criminal responsibility, legal certainty, the right to defence and equality of arms. 10
Prior to 15 July, the Parliament, elected through repeat elections on 1 November 2015, had worked on a busy legislative agenda stimulated by an ambitious government reform programme and the visa liberalisation dialogue. Political confrontation, however, continued to beset the work of the Parliament. Some key legislation was adopted without proper consultation. Significant legislative amendments were introduced by decree under the state of emergency, without prior consultation of Parliament, although some limited form of consultation of opposition parties was organised. In line with Article 120 of the Constitution, decrees taken under the state of emergency are sent to Parliament for approval within 30 days. The establishment of a parliamentary commission that will include representatives of all four parties and will receive opinions on the decree laws issued during the state of emergency is being considered. The adoption in May of a law allowing the immunity of a large number of deputies to be lifted and the ensuing detentions and arrests of several HDP Members of Parliament, including the two Co-Chairs, in November is a matter of grave concern. There was no progress in aligning the legal framework on elections and political parties with European standards. A code of ethics for members of Parliament should be adopted. Comprehensive reform of Parliament’s rules and procedures needs to be prioritised to improve the inclusiveness, transparency and quality of law-making and effective oversight of the executive.
In the face of the attempted coup, all parties stood united in its condemnation. More consensual cross-party work was initiated on that occasion between AKP and opposition parties, except HDP, which led to a consensus, in the framework of a dedicated commission, on a number of constitutional changes, particularly on restructuring judicial bodies.
The Parliament elected on 1 November 2015 engaged in a heavy legislative agenda in order to implement the ambitious government reform action plan for 2016 and the legislative requirements of the visa liberalisation roadmap, re-energised following the EU-Turkey summit on 29 November 2015. However, several key pieces of legislation which were adopted regarding the rule of law and fundamental rights were not in line with European standards, e.g. the law on data protection.
The constitutional reform process put on hold in December 2013 was revived in February 2016. However, the discussions in Parliament’s Conciliation Committee, established with the participation of the four political groups represented in Parliament, soon collapsed due to a stalemate on a possible shift to a presidential system of governance proposed by the ruling party. In the aftermath of the attempted coup, a commission set up by AKP and opposition parties CHP and MHP, with the exception of HDP, came to a consensus on a number of constitutional changes, particularly on restructuring judicial bodies. These changes are yet to be adopted.
Parliament’s ability to perform its key functions of law-making and oversight of the executive continued until 15 July to be affected by political confrontation. Legislation was often prepared and adopted without sufficient debate in Parliament and without consultation with stakeholders. Following the declaration of the state of emergency and its extension, Parliament’s role in the law-making process was limited. The influence of the Committees on Human Rights Inquiry and on EU Harmonisation remained limited even on draft laws with a significant impact on fundamental freedoms. There was no progress on reforming parliamentary rules and procedures. Media accreditation and the rules for inviting stakeholders to committee meetings continue to be applied selectively.
Parliamentary oversight of the executive remained weak. There was insufficient follow-up by the executive whenever Parliament uses instruments such as parliamentary questions and committees of inquiry. The work and reports of committees of inquiry received good media coverage; however, Parliament failed to set up committees of inquiry on some critical developments, including the rapid deterioration of the security situation. In the absence of 11
a specialised committee with sufficient technical expertise to deal with reports from the Court of Accounts there was no improvement in parliamentary oversight of public spending.
The Turkish Grand National Assembly was severely damaged by airstrikes during the attempted coup on the night of 15 July. On 16 July all political parties represented in Parliament issued a joint declaration, unanimously condemning the attempt to overthrow the democratically elected institutions. The setting-up of a special parliamentary commission, agreed by all parties, to probe the coup attempt of 15 July is an important step towards thorough investigation of these tragic events. Meetings between the President, Prime Minister and opposition party leaders, with the noticeable exception of HDP, initially raised hopes that party politics could become more consensual. Cross-party dialogue should include all parties represented in Parliament. The 20 July declaration of the state of emergency led to significant legislative amendments being adopted by decree without prior consultation of Parliament, although some limited form of consultation of opposition parties was organised. In line with Article 120 of the Constitution, decrees taken under the state of emergency are sent to Parliament for approval within 30 days. The establishment of a parliamentary commission that will include representatives of all four parties and will receive opinions on the decree laws to be issued during the state of emergency is being considered. The main opposition party CHP has appealed to the Constitutional Court concerning the relevance of some of the issued decree laws to the necessities of the state of emergency.
There was no progress in aligning the legal framework on elections and political parties with European standards. The 10 % threshold for parties to be represented in Parliament is still in place. There were no further improvements to the rules on the closure of political parties following the 2010 constitutional amendments. Funding for political parties and election campaigns remains to be addressed in line with the recommendations of the Council of Europe’s Group of States against Corruption (GRECO). Following the general elections in November 2015, four parties obtained a representation in parliament. 82 women members were elected in the 550-seat Parliament. A law aiming at comprehensive ethical regulations for members of Parliament, such as declarations of assets and rules on conflict of interest, has yet to be adopted. Measures are required to ensure that parliamentary immunity is not used as a means to hinder criminal investigations against members of Parliament suspected of corruption or other misconduct. The system of parliamentary immunity should specify objective criteria for taking decisions on lifting immunity. On 20 May, Parliament adopted an amendment to the Constitution providing for a one-off lifting of the immunity of a large number of members of Parliament who had requests for prosecution pending against them. This piece of legislation, introduced by the ruling AKP, affected MPs from all parties but was widely seen as directed more particularly against the HDP as more than 350 cases were brought against 50 of its MPs. Individual members of Parliament unsuccessfully challenged the amendment in the Constitutional Court. Its implementation was put on hold after the attempted coup, except for cases involving the HDP. On 4 November, several Members of Parliament from the HDP, including the party’s two Co-Chairs, were detained and/or arrested on charges alleging support for terrorist activities.
A restrictive interpretation of guarantees provided for by the Constitution and shortcomings in the anti-terror legislation continue to pose a direct risk to the freedom of expression of members of Parliament. Freedom of expression of members of Parliament is an essential part of democracy and should be protected also when they speak outside Parliament.
The President continued to be actively engaged in key domestic and foreign policy issues. In May, a new government was appointed. The debate on a possible shift to a presidential system of governance increased and had an impact on the political agenda. The deteriorating security 12
situation in the south-east and the continued fight against the Gülen movement, particularly after 15 July, dominated the work of the government.
President Erdoğan continued to be actively engaged in key domestic and foreign policy issues. He frequently convened the Council of Ministers to map out the government’s line, most notably on a new Constitution, the fight against terror and the alleged influence of the Gülen movement over the state structures. The President’s central role was further reinforced in the aftermath of the attempted coup of 15 July, as the power to govern by decree was given under the state of emergency to the Council of Ministers under the chairmanship of the President. In addition, he convened several meetings of the National Security Council.
In May, following the resignation of Prime Minister Ahmet Davutoğlu, a new government under the leadership of Mr Binali Yıldırm was appointed. The government maintained continuity in key policy areas, including on the EU accession process. The security situation remained the principal challenge for the two successive governments. Turkey was severely hit by several terrorist attacks with numerous casualties among civilians and security forces. The security situation in the south-east gravely deteriorated. Both governments announced special plans for improving the socioeconomic situation of the south-east. A sustained political solution to the Kurdish issue is urgently needed (see Situation in the east and south-east).
Both the Davutoğlu and Yıldırm governments continued to tackle the alleged influence of the Gülen movement over the state structures and society. Judicial investigations targeting alleged members of this organisation expanded significantly even before 15 July and peaked exponentially following the attempted coup attributed to the Gülen movement. In May, the President and the government announced that the Gülen movement was formally included in the list of terrorist organisations kept but not disclosed by the National Security Council. The events of 15 July led to the arrest, suspension or dismissal of tens of thousands of individuals allegedly linked to the Gülen movement. Any allegation of wrongdoing needs to be examined with due process, transparent procedures, and the right of every individual to a fair trial or equitable administrative process should be safeguarded.
With regard to local government, many elected representatives and municipal executives in the south-east were detained or arrested under terrorism-related charges, some of them following the coup attempt. It will be crucial that citizens of the municipalities concerned will be represented again by local officials elected in accordance with Turkish law. Fiscal decentralisation remained limited despite the 2012 amendment to the Law on Metropolitan Municipalities, which redrew municipal boundaries and extended the scope of the municipalities’ responsibilities. Municipalities need the necessary financial resources to carry out the responsibilities transferred to them.
The track record of the activities of the Ombudsman is positive with a total case-load of 22 648 applications until end August 2016, for which 21 546 decisions were taken. The public administration’s follow-up to his recommendations increased steadily. However, in the absence of powers to initiate investigations and to intervene in cases with legal remedies, the Ombudsman remained silent on certain human rights concerns, most notably on human rights violations in the east and south-east. The limited powers of the Ombudsman reduce the effectiveness of his potential contribution to the fields of human rights and good governance.
The legal framework insufficiently protects Turkey’s eight independent regulatory authorities from undue political interference. Their work needs to become more transparent.
Civil society remained active and involved in public life under difficult circumstances. Human rights defenders were subject to intimidation and detentions. A large number of organisations were closed as part of the post-coup measures taken by the government. Systematic and inclusive mechanisms for consulting civil society, notably on new legislation, need to be put in 13
place and consistently used. The legal, financial and administrative environment needs to be more conducive to the development of civil society.
An empowered civil society is a crucial component of any democratic system and should be recognised and treated as such by the state institutions. Civil society organisations (CSOs) made what efforts they could to remain active and involved in public life. The EU-Turkey civil society dialogue programmes have now involved 1 774 Turkish CSOs together with their counterparts in the EU. These programmes contribute to the development of civil society and enable greater recognition of CSOs at local level. However, there is no overall government strategy in place for cooperation with civil society. In the absence of formal arrangements for their participation, independent civil society organisations are rarely involved in law- and policy-making processes.
Human rights defenders were subject to several ongoing court cases, new investigations and intimidation through public statements of high-level officials. The investigation into the killing in November 2015 of human rights defender and chairperson of the Diyarbakır Bar Association, Mr Tahir Elçi, has not progressed. On 21 July a large number of CSOs were closed following the attempted coup. Restrictions on freedom of assembly remained a problem. Systemic difficulties, such as restrictions on registration and procedures for the authorisation and functioning of associations, have continued. A number of CSOs have seen their regular operations challenged through closure cases, penalties, restrictions or discriminatory practices. Current legislation, including taxation law, is not conducive to encouraging private donations to non-governmental organisations (NGOs). Civil society remains financially vulnerable and dependent on public project grants. At the same time, public funding has not been sufficiently transparent.
Civilian oversight of the security forces
The Turkish government with the support of the entire Turkish political spectrum and society, succeeded in overcoming a military coup in July. In addition to measures taken in the aftermath of the attempted coup against those suspected of participation to the coup, including high numbers of dismissals and arrests, the legal framework for civilian-military relations underwent significant changes. In a positive development, the powers of civilian institutions over the military expanded decisively, thereby strengthening civilian oversight over the military. However, the amendments to the law on the personnel of the Turkish armed forces raise concern as they give extensive legal protection to the personnel with counter-terrorism duties. The military and intelligence services continue to lack sufficient accountability in Parliament.
A part of the military, including a number of high ranking officers, engaged in the 15 July coup attempt which was eventually defeated, after one night of heavy fighting, thanks to a majority of security and armed forces that had remained loyal to the government. The huge mobilisation of civilians across the country to resist the coup attempt and act as civilian guardians was proof of a major shift across Turkish society which massively rejected this attempt by parts of the military to seize power.
The legal framework for civilian-military relations underwent significant changes in the aftermath of the attempted coup. The third decree of 31 July following the declaration of the state of emergency introduced considerable changes to the organisational and educational structure of the Turkish armed forces. The force commanders were attached to the Ministry of National Defence and the civilian executive was granted the power to give orders to top commanders without observing the chain of command. In addition, the decree also introduced changes to the composition of the Higher Military Council (YAŞ). The Prime Minister’s deputies and the ministers of justice, foreign affairs and interior were made members of the YAŞ. This increased the number of civilian members to ten, while the number of military members fell from 12 to four. 14
Serious allegations of human rights violations and disproportionate use of force by the security forces in the south-east were increasingly and credibly reported. The track record of judicial and administrative examination in these cases remains poor. The Law on Provincial Administrations was referred to as the basis for imposing long-lasting, open-ended curfews and involving the armed forces in domestic security operations with limited civilian oversight. A law-enforcement oversight commission was set up in May but lacks independence from the executive and powers to launch its own investigations.
Parliamentary, administrative and judicial oversight and accountability of security and intelligence forces remains inadequate. The requirement that the Prime Minister and Minister of Interior authorise any prosecution of the Chief of the General Staff or force commanders for offences committed while on duty remains in effect. The amendments to the law on the personnel of the Turkish armed forces adopted in June expand the armed forces’ legal and operational responsibility for command of domestic security operations and provide shelter from prosecution for armed forces personnel involved in counter-terrorism operations. This raises concerns about the reduced judicial and administrative oversight of military personnel. The parliamentary security and intelligence committee continued to have a very limited oversight mandate. The legal framework for overseeing military expenditure has yet to be improved. Access to audit reports by the Turkish Court of Accounts on the security, defence and intelligence agencies remains restricted. Parliament was not involved in the adoption under the state of emergency of decrees that introduced significant changes to the military.
2.2. Public administration reform
Turkey is moderately prepared with the reform of its public administration. There has been backsliding in the area of public service, and human resources management in particular, in the aftermath of the coup attempt. The use of regulatory impact assessments is now better regulated following the adoption of a new regulation. However, implementation still needs to be improved. Otherwise there has been little follow-up to the Commission’s recommendations of 2015. There is still no comprehensive reform strategy and political ownership. The continued politicisation of the administration and the low level of female representation in the higher echelons of bureaucracy, despite a slight increase in 2016, continue to be of serious concern. The structural impact of the measures taken in the aftermath of the attempted coup attempt of 15 July on the functioning of the civil service remains to be assessed; as of end of October, 139 000 public employees had been either suspended (76 000) or dismissed (63 000), including in the education sector and academia. In the coming year, Turkey should in particular:
→ ensure that any allegation of wrongdoing is examined with due process, transparent procedures and safeguard the right of every individual to a fair trial or equitable administrative process;
→ prepare changes to its legislation to introduce merit-based, competitive recruitment for the senior managerial positions of the civil service;
→ start to systematically conduct impact assessments for planning documents and legislative proposals, in line with the revised legal framework.
Policy development and coordination
Turkey has a coherent policy-making system. Policy coordination among central government institutions is generally strong, whereas annual planning and monitoring of whole-of-government performance has been lacking so far. Limited progress was made on reform, as the government only developed its first annual reform action plan in December 2015. A monitoring mechanism headed by a deputy prime minister was established and quarterly implementation reports were published. A website (www.reformlar.gov.tr) was launched to enable the public to monitor progress on reform. However, the planning process can be further improved, with more participation of stakeholders, to ensure that objectives are better formulated and targets are 15
properly quantified. Lack of systematic link between policy and fiscal planning jeopardises the implementation of strategies, reform programmes and legislation.
Concerning European integration–related issues, the Ministry for EU Affairs, together with EU departments in relevant ministries, has set up a well-functioning system to steer alignment with the acquis. However, legislation and policy formulation do not systematically result from inclusive and evidence-based policy development process, even for acquis alignment. Despite legal requirements, draft policies and laws are often not subject to public consultations. The legal requirement to produce medium-term cost estimates and fiscal impact assessments for draft policies and laws is not systematically respected. Regulatory impact assessments are often not sent to Parliament or published. A new by-law was adopted in March to ensure that regulatory impact assessments are carried out systematically by all public institutions. Its implementation remains to be assessed.
In the absence of effective parliamentary scrutiny by specialised legislative committees, the recent steps taken by the government to improve policy planning and monitoring of the government’s performance should be complemented with ex post results-oriented reports enabling better public scrutiny of government work.
Public financial management
Turkey is continuing with reforms in various public finance areas, but there is no overarching public financial management reform programme that would ensure a holistic approach. The medium-term programme for 2016-2018 includes provisions to improve public finances, but it does not provide any baselines, targets or indicators to measure progress. The annual budget is prepared as part of the medium-term budget framework. Overall, fiscal discipline is ensured despite the absence of an independent fiscal council.
Budget transparency needs to be further addressed at various levels. While annual budgets are published and annual reports on budget implementation are produced, their structure does not allow comparison with or analysis against the original budget. In-year reporting is insufficient and needs to be improved. Transparency of public investment programmes and state assets is weak. Participation by civil society in the budgetary process is poor. Revolving funds have been a specific cause of concern, as they are not included in the annual budget or in the Treasury single account. The medium-term programme 2016-2018 includes provisions to ensure an open, transparent and accountable administrative and fiscal environment.
Public service and human resources management
The Law on Civil Servants defines public service in a way that is extremely broad, including different categories of public servants such as contractual civil servants, temporary staff and other workers who do not fall under the same legislation. Women are slightly better represented in the public service than before, at 37.1 % in 2016 compared with 36.5 % in 2015. However, the percentage of women in senior managerial positions was only 10.4 % in July 2016 compared with 9.7 % in 2015. Progress has been made in employing disabled staff (rising from 40 655 in 2015 to 43 151 in 2016), but is still short of the 3 % quota.
The civil service legal framework does not fully guarantee neutrality, continuity or merit-based recruitment and promotion procedures, although the law requires a centralised examination. The first phase of external recruitment for entry-level positions is based on merit, whereas the oral interview phase remains poorly regulated and thus is open to political patronage. In addition, the large scale conversion of temporary contracts into permanent civil servants positions circumvents the merit principle. Access to top civil service positions is not always merit-based, and appointments are not subject to competition.
Whereas the legal framework guarantees uniform criteria for demotion, dismissals and disciplinary measures, with provision for appeal, there has been a continuously high annual 16
turnover in managerial positions with 28.6 % in 2015, 52.7 % in 2014 and 8.2 % in 2013. The conditions and structural impact of the large-scale dismissals and suspensions that followed the 15 July coup attempt are a source of serious concern. By end-October, over 76 000 public employees remained suspended and about 63 000 had been dismissed, including in the education and health sectors. Turkey has a total number of 3.4 million public employees. In September, an administrative review mechanism was set up under the Prime Ministry to review the applications of the dismissed and suspended civil servants; it already received 70 000 individual claims. Its functioning remains to be evaluated. Transparent procedures and due process need to be applied and any allegation of wrongdoing needs to be evidenced on an individual basis. Turnover of staff in the administration will also need to follow transparent procedures in order to safeguard the principle of neutrality of the state apparatus. Allegations of entry exams having been rigged by the Gülen movement to secure an increased presence of staff under its influence in the civil service should also be investigated.
The State Personnel Presidency, reporting to the Ministry of Labour and Social Security, has the central coordination responsibility for human resources management (HRM). Human Resources units are in place in various services, but apply different policies and approaches. The State Personnel Presidency lacks the necessary coordination and monitoring capacity to ensure implementation of modern HRM policy and standards. The lack of a modern HRM information system, which would provide real-time data for the entire public service, is another obstacle to an efficient HRM system. The civil service remuneration system is not fully transparent. Training strategies and plans are in place to ensure professional development. Integrity in public service is boosted by ethics committees and an ethics board, set up in the Prime Ministry, but there are no integrity plans in place.
Accountability of the administration
The state administration is organised in a hierarchical and rational way, ensuring appropriate lines of accountability. Public administration agencies are supervised by parent ministries, which in turn report to the Council of Ministers. State institutions are required to submit annual accountability reports on the use of resources to achieve targets, but the Council of Ministers does not ensure systematic follow-up to these reports. Some institutions have a culture of managerial accountability and delegation of responsibilities (see chapter 32).
The citizens’ right to good administration is ensured through relevant internal and external oversight arrangements, but they need to be better protected. The role of oversight institutions such as the Ombudsman remained limited in the absence of ex officio powers (see Governance). Right to access public information is regulated by the law on the right to information. The law allows for broad exemptions on grounds of protecting state secrets, commercial secrets and personal data. No centralised independent body oversees implementation. Easy online access led to more than 2 million applications a year for access to information both in 2015 and 2016. The percentage of requests refused remained small, approximately 3.7 % up to June 2016 compared with 3 % in 2015. In line with provisions in the Constitution, the right to administrative justice and the right to seek compensation in cases of wrongdoing are protected. Implementation is ensured by administrative, tax and regional administrative courts and the Council of State. The courts are considered to be efficient, but there is no evidence of how these rights are upheld in practice, as there is no institution responsible for collecting the relevant data.
Service delivery to citizens and businesses
Strong commitment to a user-oriented administration has led to the expansion of e-government services and provision of smart identity documents. Significant progress has been achieved in e-government. The number of registered users exceeded 27.5 million (up from 25.2 million in 2015). The number of services provided through the e-government gateway has almost doubled in the last two years. Public services are accessible to a great extent. Ambitious 17
e-government strategy and action plan for 2016-2019 were adopted in July 2016 aiming at further developing such e-services across Turkey. However, access for disabled citizens to services including public buildings remained low. Further expansion of one-stop-shops and points of single contact for citizens, particularly at local level, is needed.
Uniform public services are being delivered to a great extent, and the institutions publicise the standards of public services within their own legal remit. User satisfaction surveys, however, are not regularly used, and there is no institution responsible for overall promotion or measurement of the quality of public services. Work on simplifying administrative procedures and cutting red tape is hindered by the lack of a law on general administrative procedures to give citizens and businesses greater legal certainty. The legal framework is fragmented, as administrative procedures are covered in a variety of sectorial laws.
Strategic framework for public administration reform
Turkey has no overarching strategy or planning document dedicated exclusively to public administration reform. Although there are various planning documents and sub-strategies relating to some aspects of Public Administration Reform, the lack of political support and of administrative ownership hinders a comprehensive approach. There is no cross-cutting system for monitoring and reporting on the various related planning documents, which are not centralised. The department for strengthening the administration, in the Prime Ministry, has a legal mandate but lacks the necessary capacity to coordinate design, implementation and monitoring. The financial sustainability of overall public administration reform is not guaranteed, as the key planning documents do not specify the expected costs.
2.3. Rule of law
Functioning of the judiciary
Turkey’s judicial system has reached an early stage/some level of preparation. There has been backsliding in the past year, in particular with regard to the independence of the judiciary which represents a significant challenge to the overall functioning of the judiciary. The extensive changes to the structures and composition of high courts are of serious concern as they threaten the independence of the judiciary and are not in line with European standards. Judges and prosecutors continued to be removed from their profession and in some cases were arrested, on allegations of conspiring with the Gülen movement. The situation worsened further after the July coup attempt, following which one fifth of the judges and prosecutors were dismissed and saw their assets frozen. There was no progress on the outstanding issues identified in previous reports and the recommendations made last year can therefore largely be restated:
→ create a political and legal environment that allows the judiciary to perform its duties in an independent and impartial manner, strengthen its responsibilities, with the executive and legislature fully respecting the separation of powers;
→ limit the role and influence of executive power within the High Council of Judges and Prosecutors and provide sufficient guarantees against transfers of judges against their will;
→ introduce further safeguards against any interference by the High Council of Judges and Prosecutors in judicial proceedings.
→ limit any suspension of a judge, as a major infringement of guaranteed judicial independence under the Constitution, to cases of well-founded suspicion of serious misbehaviours; ensure that the system of disciplinary proceedings is guided by objective criteria without undue influence from the executive power; 18
→ with regard particularly to the measures taken against suspected persons following the attempted coup, ensure that any allegation of wrongdoing or crime is subject to due process based on evidence and fully transparent procedures under the authority of an independent judiciary and in full respect of fundamental rights, including procedural rights, notably as regards the respect of the presumption of innocence, individual criminal responsibility, legal certainty, the right to defence, the right to a fair trial, equality of arms and right to an appeal.
Turkey is implementing a Judicial Reform Strategy covering the period 2015-2019. The Strategy Development Department of the Ministry of Justice acts as the central monitoring body and secretariat for implementation of the judicial reform strategy in close cooperation with the High Council of Judges and Prosecutors (HSYK) and the Judicial Academy.
The HSYK is the key institution managing the judiciary. The Council is independent in managing a budget of EUR 18.5 million. There was no progress in solving the persistent problem of the influence of the executive over the HSYK, in particular following the legislative changes of 2014 strengthening the powers of the Minister of Justice within the HSYK and the subsequent staff changes in the HSYK. As ex officio members, the Minister of Justice, acting as President of the Council, and his undersecretary continue to have substantial influence over the work of the HSYK. The HSYK is therefore widely perceived to be the executive’s main means of controlling the judiciary. More transparency in the HSYK’s work and strict adherence to procedures are needed to strengthen not only the Council’s credibility but also public trust in the judiciary.
Following the coup attempt, the general assembly of the HSYK excluded five of its judge members (out of 22 members), who then faced prosecution.
Independence and impartiality
Judicial independence and impartiality are enshrined both in the Constitution and in legislation. Nevertheless, in practice, there are numerous reports on selective justice and political interference in court cases. There are serious concerns about direct interference by the executive in cases (e.g. through public comments) which continue to undermine the credibility of the judiciary as a whole. The application of the principle of immovability of judges remains highly problematic. Transfers of judges and prosecutors against their will were frequent and were not open to judicial review. A number of disciplinary and criminal cases against judges and prosecutors have not seen due process, being sometimes solely based on the indictments and rulings pronounced by these same judges and prosecutors in the exercise of their functions. This contradicts basic principles of the rule of law and considerably undermines trust in the judiciary and its independence.
The law changing the structure and composition of the Court of Cassation (CoC) and the Council of State (CoS) as adopted in July also raised serious concerns as to it impact on the independence of the judiciary. Frequent changes to the internal organisation of judicial bodies and to the court network, in particular the criminal court system, are creating legal uncertainty.
Comments by representatives of the executive and the legislative branches on ongoing judicial cases, challenging among others decisions taken by the Constitutional Court, have continued as a regular practice. In the days and weeks following the attempted coup, 3 508, i.e. one fifth of the total number of judges and prosecutors were suspended by HSYK and 3 390 subsequently dismissed. 2 386 judges and prosecutors have been detained: 2 229 of first instance, 109 from Court of Cassation, 41 from Council of State, two members of the Constitutional Court, and five members of the HSYK. Following the coup attempt, a large number of new judges were appointed only within two weeks. The magnitude and rapidity of the measures taken raise 19
questions on criteria applied. These large-scale dismissals as well as large-scale recruitments of new judges and prosecutors raise a serious challenge to the performance and independence of the judiciary.
While all lawyers have to abide by the rules set by the Union of Turkish Bar Associations, there is no code of ethics for judges and prosecutors. Integrity training is part of the curriculum for initial training but neither a criterion in the initial selection and nomination process, nor for appointments to senior positions. Disciplinary proceedings are initiated and decisions on disciplinary and ethical matters are taken by the HSYK Inspection Board. Official statistics put the number of judges and prosecutors dismissed following the above procedure at 12 in 2013, 4 in 2014, 9 in 2015 and 13 in 2016, prior to the July coup attempt. The disciplinary system is perceived as a tool to exclude certain judges and prosecutors for political reasons. The declaration of assets is obligatory for all high court judges, including members of the HSYK, but not for prosecutors.
Professionalism and competence
Candidate judges and prosecutors are recruited for pre-service training by means of a written examination and an oral interview. The HSYK does not play any role in this process. The interview is conducted by a board of seven members: five senior officials from the Ministry of Justice and two from the Justice Academy. The formal appointment and transfer of judges and prosecutors are exercised by the HSYK. The HSYK is also responsible for evaluating the performance and for promoting judges and prosecutors. Assessment criteria for promotion are published in the Official Gazette. The dismissal of a judge or prosecutor requires a decision by the HSYK, which is subject to judicial review. In the reporting period, the HSYK has been criticised for a lack of consistency in applying the dismissal procedure.
The authority leading and taking decisions on the recruitment and careers of judges should be independent from the executive and the legislative powers. Such decisions should always be grounded on objective, merit-based, uniform and pre-established criteria.
Following the mass dismissals of judges and prosecutors in the aftermath of the attempted coup, the appointment of new recruits in large numbers within two weeks has raised concerns about the selection procedure and their professional quality.
Quality of justice
The Justice Academy is responsible for pre-service and in-service training of candidate judges and prosecutors. Since the February 2014 legislative changes, the President of the Academy and deputies have been appointed by the executive, which is threatening the independence of the Judicial Academy. The human and financial resources of the judiciary seem proportionate to the challenges it faces.
While mediation and various other alternative dispute resolution mechanisms are in place, they are scarcely used. Overall, the quality of judicial decisions has improved in recent years. However, the weak reasoning and poor quality of some indictments — without appropriate selection and assessment of supporting evidence — remain a serious problem for the criminal justice system, in particular in terrorism-related cases.
Courts all over the country normally have modern information and communication technology equipment. In all courts, an electronic case allocation system is in place as part of the national judicial network project, UYAP. This system offers lawyers and parties protected access to important information about judicial proceedings, and is used for statistical reporting. However, courts do not publish regular activity reports. 20
In general, the Turkish judicial system has enough capacity to handle its caseload. The establishment of the Court of Appeals from 20 July 2016 will contribute to ensuring the consistency of case-law and help reduce the backlog of the Court of Cassation. The length of proceedings has been a long-standing issue. The backlog of civil, criminal and administrative cases, which had been reduced in 2012, increased again markedly in the following years and more particularly in 2016. The judicial network is complex and, while there are enough support staff, there is no human resources management strategy.
Fight against corruption
The country has some level of preparation for the fight against corruption. Some progress has been achieved in the past year. Corruption remains prevalent in many areas and continues to be a serious problem. The adoption of a new strategy and anti-corruption action plan is a step forward even if it remains rather limited in scope. The legal framework continues to suffer from important gaps and the executive’s influence on the investigation and prosecution of high-profile corruption cases remained a major source of concern.
Corruption perception remains high. A broad political consensus, strong political will and a long-term strategic vision are required to start tackling corruption properly. In addition to addressing the shortcomings outlined below, in the coming year the country should in particular:
→ establish a functionally independent anti-corruption body, in line with the United Nation’s Anti-Corruption Convention;
→ ensure an effective follow-up to the recommendations issued by the Council of Europe’s Group of States against Corruption (GRECO), including by adopting the necessary legislation;
→ ensure full independence of prosecution and law enforcement bodies, particularly those in charge of high-level corruption investigations.
Turkey’s track record of investigation, prosecution and conviction in high-level corruption cases remained poor. A number of investigations of cases of corruption involving public officials, e.g. in local administration, public construction, health and the higher education sectors, resulted in their conviction. Control and inspection units continue to send small numbers of potential corruption cases to the prosecution service. Public procurement, land administration, energy, construction and transportation, including when implemented via public-private partnerships, remain particularly vulnerable to corruption.
Political influence on judges and prosecutors and law enforcement officers continued to raise serious concerns. This was demonstrated on a number of occasions by the removal and suspension or subsequent prosecution of judges, prosecutors and law enforcement officers who had led high-profile corruption cases implicating political figures.
Financial investigations are not required in cases of corruption and organised crime. A new regulation adopted in April further strengthened the legal framework for freezing and confiscating alleged criminal assets providing for a precautionary freezing mechanism under certain conditions. The level of detection and investigation of foreign bribery offences remained limited. With few exceptions, such as in the case of tender-rigging often handled with deferred pronouncement of sentences, the sentences handed down are a deterrent.
The track record of control of the financing of political parties and electoral campaigns demonstrates very low system effectiveness. Constitutional Court decisions on external financial audits are seriously delayed. During the last five years, no major political party has 21
been referred to the Public Prosecutor on grounds of breaching the party financing provisions of the Law on Political Parties.
Despite repeated political commitments, no new legislation revising the system of asset declaration and disclosure has been adopted. The existing system has been ineffective due to its limited scope, control mechanisms and measures preventing disclosure. As regards conflicts of interest, the most common breaches include misuse of discretionary powers, favouritism in personnel recruitment, extravagance in spending public funds, financing gifts and reimbursing personal expenses from public funds. Whistle-blowing remained rare given the inadequate protection offered by the current legislation.
For the prevention of corruption, there is still no permanent, functionally independent anti-corruption body. The lack of a body in charge of fighting corruption, and inadequate coordination of the various institutions, are major impediments to policy effectiveness. The Prime Ministry Inspection Board coordinates preventive anti-corruption measures, but it is not independent and has no independent investigation powers. The Prime Ministry Communications Centre (BIMER) is the main body in charge of reporting on corruption and maladministration. Anti-corruption awareness-raising campaigns have not been conducted on a regular basis. There is no comprehensive policy in place to prevent corruption in the private sector.
As regards law enforcement and prosecution, the country still lacks a specialised prosecution service to lead anti-corruption investigations. There are also few specialist courts. The current legal framework compromises the independence of the HSYK and officers acting as judicial police and prevents them from carrying out effective investigations. An information-sharing system between the police and the Financial Intelligence Unit exists and electronic access to databases for the relevant agencies is at a moderately prepared level.
Although passive and active bribery are defined in the criminal code, the definition of active bribery is still not in line with the international conventions to which Turkey has acceded or with GRECO recommendations. With few exceptions, sentences do have a deterrent effect.
The legislation on the financing of political parties is weak as Turkey has not yet implemented all GRECO’s recommendations on the transparency of party funding, a benchmark of the visa liberalisation roadmap. The 2015 elections took place in a legal and institutional context in which individual party and independent candidates’ campaigns were not subject to any transparency regulations
The many exceptions inserted in the initial public procurement law have left public tenders extremely vulnerable and prone to corruption. Amendments to the Turkish criminal code in 2013 reduced the penalties imposed on tender-rigging to a level that is no longer proportionate to the potential damage to the public interest. Currently, suspects convicted of tender-rigging charges can take advantage of deferred judgments.
The anti-corruption legislation contains largely inadequate provisions on prevention, prosecution and sanctioning of conflicts of interest as well as the declaration, verification and disclosure of assets. Existing penalties are not deterrent for these offences and enforcement remains weak. The country has no legislation governing lobbying. Turkey’s anti-corruption legislation would benefit from comprehensive and in depth scrutiny to identify and address loopholes. 22
Most of the measures enshrined in the anti-corruption strategy and action plan for 2010-2014 were not implemented. An updated action plan for increasing transparency and strengthening the fight against corruption was adopted in April but is limited in scope.
Fight against organised crime
Turkey has achieved some level of preparation in the fight against organised crime. Some progress has been made over the past year to increase institutional capacity and adopt new strategies and action plans in the field.
However, statistics on the number of final convictions and other important indicators are not available. Financial investigations remain underused. Precautionary freezing of assets is rarely applied and the level of assets confiscated is low. In the coming year, Turkey should in particular:
→ revise and implement data protection legislation in line with European standards to create the conditions for efficient and effective international police and judicial cooperation, including with Europol and Eurojust;
→ take measures to improve its track record, in particular by dismantling criminal networks and confiscating criminal assets;
→ collect and use appropriate aggregate statistics to facilitate threat assessment, policy development and implementation.
Turkey further developed its track record of final convictions in cases related to organised crime. However, the track record on anti-money laundering measures remained insufficient. Financial investigations are still only conducted at the discretion of the prosecution service; there is no policy of systematically running financial investigations, only provision for specific cases in the criminal procedure law. The prosecution service is requesting more financial investigations in money laundering and terrorism financing cases. Precautionary seizure of assets in the initial phase of the investigation is being used.
Institutional and operational capacity
Prior to the July attempted coup Turkey had 271 564 police and 166 002 gendarmerie officers (including conscripts). In the aftermath of the attempted coup, more than 18 000 police and gendarmerie officers have been suspended and more than 11 500 have been dismissed, while over 9 000 remain detained. Initial and in-service training is provided by the police academy. However, the academy’s capacity to provide specialised training is limited.
There is a move towards further specialisation in law enforcement agencies. For example, new departments for the fight against drugs, migrant smuggling and human trafficking have been set up. Specialisation and effectiveness need to be further developed through training and staff retention in the relevant units. In terms of equipment, law enforcement bodies generally have appropriate modern vehicles, radio communication systems, software, hardware, and premises. Most databases are in place, though they are not always interconnected.
Cooperation on the ground between law enforcement bodies needs to be built up further, in particular between the police and the gendarmerie. Courts need greater specialisation in organised crime cases.
There is no operational cooperation agreement with Europol as the data protection legislation is not yet in line with European standards. However, Turkey has a strategic agreement with Europol, in force since July 2004. In March 2016, Turkey signed an agreement with Europol on the appointment of a Turkish liaison officer in The Hague, who was subsequently seconded to 23
Europol from May until September 2016. A new Liaison Officer has been selected and will start in November 2016 (see also chapter 24 – Justice, freedom and security).
Turkey has a Law on Witness Protection, and witness protection units have been established in 81 provinces under the national police and the gendarmerie’s General Command. The legislation contains some important flaws that still need to be addressed to ensure a more effective witness protection policy.
In the fight against cybercrime, Turkey set up a 24/7 contact point under the national police. The Internet Law, which allows the Telecommunications Presidency to remove or block access to content without a court order, remains a matter of concern (see also chapter 23 — Judiciary and fundamental rights).
A financial intelligence unit is in place under the Financial Crimes Investigation Board (MASAK). The number of suspicious transactions analysed by the board has been rising every year. MASAK and law enforcement services continued to work in coordination with access to certain databases. Information on suspicious transactions is used to help improve threat assessments and the development of national policies and strategies. The board has increased the number of investigation staff and is upgrading its IT infrastructure.
The criminal code is to a large extent in line with the acquis and covers a range of specific types of crimes. However, some arrangements are necessary in relation to special investigation methods, including the timeline and detailed arrangements for their use. The investigative powers of the border police and customs remain very limited and highly dependent on the police. Some improvements need to be made to the legislation on cybercrime and witness protection. Rules on third-party confiscation, on extended confiscation and on precautionary freezing of assets need to be aligned.
The legislation to combat money laundering and financing of terrorism is largely in line with the recommendations of the Financial Action Task Force. The law on the confiscation of criminal assets is partially aligned with the acquis. Alignment with the acquis is still required as regards criminal law directives covering various forms of serious and organised crime, including on the confiscation of criminal assets and asset management.
Turkey is providing input to the serious and organised crime threat assessment (SOCTA), although it has not yet adopted Europol’s reporting methodology. It also has a new strategy for combating organised crime (2016-2021) and an action plan (2016-2018).
Turkey is implementing a number of sectoral strategies and action plans, such as the drugs national strategy and action plan for 2016-2018, which entered into force in April. A national cybersecurity strategy and action plan (2016-2019) were adopted in February. A comprehensive multidisciplinary and victim-oriented approach to human trafficking remains to be developed.
Fight against terrorism
Turkey was struck by several large-scale deadly terrorist attacks attributed to PKK and Da’esh in the reporting period. The EU condemns all acts of terrorist violence and deplores the casualties that these attacks have caused. Turkey has a legitimate right to defend itself against such terrorist violence, but the measures taken need to be proportionate (see Situation in the east and south-east). In its efforts to fight terrorism, Turkey has been giving priority to the PKK, particularly following a severe surge of violence in the country since July 2015. The PKK remains on the EU’s list of terrorist organisations. Turkey has addressed the terrorist threat from Da’esh more vigorously. It joined the Global Coalition to Counter ISIL/Da’esh in September 2014. Following the terrorist attacks by Da’esh, Turkey strengthened its 24
engagement with the coalition and launched several air strikes and ground operation “Euphrates Shield” against Da’esh positions in Syria. It also maintained an agreement with the United States of America on the use of the Incirlik base for the coalition forces. Turkey has been seriously affected by the phenomenon of foreign terrorist fighters transiting through the country and is a source of terrorist fighters. It has improved its means of combating the financing of terrorism. Turkey’s active counter-terrorism cooperation with the EU has continued with the latest counter-terrorism dialogue being held in June, where particular attention was paid to the issue of foreign terrorist fighters. The phenomenon of foreign terrorist fighters needs a dedicated approach by the intelligence and law enforcement community and a consistent judicial policy. Turkey should pursue its efforts to effectively prevent and counter radicalisation. This needs to be done in close cooperation with religious leaders and communities, social workers, the education system and youth organisations.
2.4. Human rights and the protection of minorities
The Turkish legal framework includes general guarantees of respect for human and fundamental rights, which need to be further improved. The enforcement of rights stemming from the European Convention on Human Rights (ECHR) and the case-law of the European Court of Human Rights (ECtHR) is not yet fully ensured. Turkey has taken some positive steps to address systemic problems by adopting an action plan on prevention of ECHR violations in 2014. However, its general approach and lack of any robust monitoring mechanism seriously hinder its implementation and impact. The legislative scope of the action plan needs to be widened to cover all rights and relevant ECtHR case-law. Monitoring of its implementation should be also improved.
Last year’s recommendations still need to be addressed. There has been serious backsliding in the past year in the area of freedom of expression. Respect for human rights also deteriorated in the east and south-east in the context of the fight against terrorism and this continues to be a matter of serious concern. Turkey has a legitimate right to fight terrorism but it needs to ensure that anti-terror measures are proportionate, that it respects all human rights and that it fulfils its international obligations. Enforcement of rights is hindered by the fragmentation, limited independence and limited human and financial resources of public institutions responsible for human rights and by limited awareness among their staff of some fundamental rights and freedoms. Independent civil society organisations are rarely involved in law- and policy-making processes.
Following the coup attempt of 15 July, a state of emergency was declared on 20 July across Turkey for three months and extended for another three months on 3 October under which measures curtailing fundamental rights were taken, including in regards to pre-trial detention and freedom of expression. Turkey notified the Council of Europe of its temporary suspension of the ECHR, in line with its Article 15 derogation provision. The Turkish Constitution however lists inviolable rights that cannot be suspended under the state of emergency, including the right to life, integrity of corporal and spiritual existence, protection from retroactive criminal laws, and the presumption of innocence. Many allegations of serious violations of the prohibition of torture and ill-treatment and of procedural rights were reported in the immediate aftermath of the attempted coup of 15 July. The prohibition of torture and ill-treatment and procedural rights of suspected and accused persons need to be fully observed in law and in practice, in line with the country’s international obligations, in particular the European Convention of Human Rights.
Turkey should urgently address the recommendations of the Commissioner for Human Rights of the Council of Europe of October 2016 and ensure that any measure is taken only to the extent strictly required to the exigencies of the situation and in all cases stands the test of necessity and proportionality. 25
Shortcomings particularly affect the following areas:
- In addition to issues in the area of freedom of expression exposed further below, concerns remain regarding the full respect for fundamental rights and freedoms. There are also insufficient measures to fight against impunity.
- Freedom of assembly continues to be overly restricted, in law and practice, in particular through disproportionate use of force in policing demonstrations and a lack of sanctions and investigations of law enforcement officers.
- Non-discrimination is still not sufficiently enforced, in law or in practice. The rights of the most vulnerable groups and of persons belonging to minorities should be sufficiently protected. Gender-based violence, discrimination, hate speech against minorities, hate crime and violations of human rights of lesbian, gay, bisexual, transgender and intersex (LGBTI) persons continue to be a source of a serious concern.
- The anti-terror law and its implementation are not in line with the acquis. The criminal and anti-terror legislation and their interpretation should be aligned with ECtHR case-law, without reducing the capacity of Turkey to fight terrorism. The proportionality principle must be observed in practice.
- There are strong concerns about the suspension of key procedural rights under the state of emergency. It is essential that any allegation of wrongdoing or crime is subject to due process based on evidence and fully transparent procedures under the authority of an independent judiciary and in full respect of fundamental rights, including procedural rights, notably as regards the respect of the presumption of innocence, individual criminal responsibility, legal certainty, the right to defence, the right to a fair trial, equality of arms and right to an appeal.
For a detailed analysis of developments on other human rights and the protection of minorities, see chapter 23 — Judiciary and fundamental rights. For developments in the areas of trade union rights, non-discrimination and equal opportunities, see also chapter 19 — Social policy and employment.
Freedom of expression
The country is at an early stage in the area of freedom of expression, the media and the internet. In the past year, serious backsliding continued and gave rise to growing concern. Last year’s recommendations were not followed and can therefore be restated. Legislation and practice do not comply with ECtHR case-law. Freedom of expression has come under serious strain. Ongoing and new criminal cases against journalists, writers or social media users, withdrawal of accreditations as well as closure of or appointment of trustees to numerous media outlets are of serious concern. Selective and arbitrary application of the law, especially provisions on national security and the fight against terrorism, is having a negative impact on freedom of expression. The Internet Law and the general legal framework continue to enable the executive to block content without a court order on an unduly wide range of grounds.
The high number of arrests of journalists in the aftermath of the July attempted coup is of serious concern. Any alleged wrongdoing or crime should be subject to due process, and respect of the principle of presumption of innocence should be guaranteed.
In the coming year, Turkey should in particular:
→ refrain from undue restrictions on freedom of expression, including in relation to anti-terrorism operations, in line with the Guidelines of the Committee of Ministers of the Council of Europe on protecting freedom of expression and information in times of crisis; 26
→ act against and refrain from the practice exercised in various forms by both state and non-state agents of intimidating, interfering with and putting pressure on the media;
→ ensure that criminal law provisions, in particular articles on defamation and other similar offences, are not used as a means of putting pressure on critical voices, by ensuring that courts apply ECtHR case-law;
→ ensure that existing legislation, especially the anti-terror law, criminal code, the Internet Law are revised to comply with European standards and are implemented in a manner which does not curtail freedom of expression and ensures proportionality and equality before the law.
Intimidation of journalists
A high number of arrests, hearings, detentions, prosecutions, censorship cases and layoffs occurred, as the Government kept the media under heavy pressure. An increasing number of international journalists were deported or refused entry to the country. Frequent threats and various types of intimidation from state and non-state agents against journalists and media outlets continue to be a serious concern. Investigative journalists face charges for reporting on the activities of law enforcement agencies or intelligence services. A number of physical attacks on media outlets and journalists took place and no major progress was made on identifying perpetrators related to old cases of killings and assaults on journalists, including from the 1990s. The closure of media outlets and the appointment of trustees to control media groups, leading to a change in editorial policy, restrict pluralism and the right of citizens to be informed and intimidate other media outlets. Prior to the 15 July coup attempt, there were 36 journalists in prison, many of whom were charged with crimes under the anti-terrorism law. In the aftermath of the coup attempt, by the end of October, some 90 journalists were arrested bringing the total to more than 130. Decrees taken under the state of emergency also brought the closure of some 170 media outlets.
The trend of prosecutions of journalists, writers, social media users and other citizens, even juveniles, for insulting the President of Republic continued. Such cases often end with prison sentences, suspended sentences or punitive fines. This restrictive and intimidating environment leads to increased self-censorship and is not in line with the emerging European consensus on decriminalising defamation of heads of state or limiting this offence to the most serious forms of verbal attacks while restricting the range of sanctions to exclude imprisonment. On a positive note, in the aftermath of the coup attempt, the President and the Prime Minister have announced that they dropped a large number of cases brought for insulting them, but not those brought against HDP members.
The current legal framework and practice do not guarantee the exercise of freedom of expression, of the media and the internet. The Constitution permits restrictions to freedom of expression and a number of laws are not in line with European standards.
The legislative provisions on anti-terrorism, the Internet Law and the Law on the National Intelligence Agency severely impede freedom of expression. Provisions in these laws that run counter to European standards, ECtHR case-law and the recommendations of relevant international institutions should be revoked. The recommendations of the Venice Commission should be implemented.
The wide powers granted to the Telecommunications Communication Presidency (TIB) to block or remove internet content, upon the request by the government, continue to raise concerns. The judicial control for requests relating to content takedowns or blocking content is within the remit of the individual decision of Criminal Judges of Peace. Political influence on the judiciary and communication authorities to implement restrictive blocking of websites or take down content should be prevented in practice. 27
The lack of clear procedures for accreditation and their uneven application continued to be a problem. Under the criminal code, prosecution for insulting high-level politicians, including the President, and insulting religion and blasphemy are criminal offences carrying prison sentences. In addition to prison terms, high fines have a deterrent effect on media reporting. The legislation on hate speech is not in line with ECtHR case-law. Neither the law on the registration and accreditation of journalists nor the law on access to information are fully in line with international standards.
Media blackouts of information considered sensitive, including reporting on terrorist attacks, are a recurrent trend. Criminal legislation on defamation against the state, its institutions, employees or other symbols of statehood is extensively used against journalists, lawyers and users of social media critical of the government. Application of this provision should be limited to statements inciting violence and hatred. The recurring practice of taking down content and blocking links to social media sites has increased exponentially in recent years and should be curtailed. Monitoring by civil society organisations indicate that as of June close to 111 786 websites have been banned, of which only 2.6 % following a court decision. Twitter also lists Turkey as the by far leading country in the world in terms of request for removal of accounts or content, with more than 3 200 requests received in 2015.
Public service broadcasters
Regarding the regulatory framework, while the work of the Radio and Television Supreme Council (RTÜK) is fairly transparent, with decisions being published together with the supporting expert reports, there are concerns about its independence and neutrality. Members are elected by Parliament without the involvement of civil society or professional organisations. Regulation of the public service broadcaster is not in line with European standards. The editorial policy of the public service broadcaster, the Turkish Radio and Television Corporation (TRT), displays a significant pro-government line. Changes to the election procedure for members of the RTÜK and Telecommunications Communication Presidency would minimise the risk of political pressure and improve the perception of independence.
The lack of transparency of media ownership casts doubt on the independence of editorial policies. A small number of media groups dominate the media market. They often belong or remain affiliated to businesses with interests in energy, construction, real estate, trade, finance and tourism. Media outlets are vulnerable to economic pressure from major customers, including the state.
The takeover of media outlets and the appointment of trustees to control media groups has a negative economic impact with loss of hundreds of jobs. A decree taken under the state of emergency also brought the closure of a large number of media outlets.
State-sponsored advertising is not fairly and transparently distributed. This distorts the market and adds to the economic pressure on some media outlets. Independent and sustainable financing of the public service broadcaster is not ensured. The broadcasting law does not ensure fair competition as it does not prevent monopolisation.
Professional organisations, professional conditions
The representation of journalists continues to be divided between the professional journalists’ associations and the pro-government union. Journalism is an increasingly precarious profession with low wages, the risk of judicial harassment and lack of job security. Working conditions, insufficient trade union rights and application of labour legislation, the difficulty of obtaining a 28
press card and arbitrary accreditation decisions remain major concerns. Some foreign news correspondents have not been granted an extension of their press accreditation.
|Situation in the east and south-east The situation in the south-east remained one of the most critical challenges for the country. Following the collapse of the Kurdish settlement process in July 2015, the south-east saw a further serious deterioration of the security situation, leading to heavy casualties, large-scale internal displacement and extensive material devastation. Government anti-terror operations, reinforced by extended blanket curfews, were conducted across urban centres against an insurgency led by the PKK and PKK-affiliated groups. War-like conditions prevailed in some provinces. Systematic serious violations of human rights were extensively reported. The scale of internal displacement from curfew zones and lack of access to basic services in those areas are also sources of major concern.
The rapid deterioration in the security environment has taken its toll on the local economy. The government also used post-coup measures to suspend many municipal counsellors and mayors and teachers and to close a number of Kurdish-language media outlets. In November, several HDP Members of Parliament, including the two Co-Chairs, were detained and/or arrested on charges alleging support for terrorist activities. The settlement of the Kurdish issue through a political process is the only way forward; reconciliation and reconstruction are also becoming key issues for the authorities to address.