Press releases
EUTCC Appeal to the European Parliament2 August 2006 Dear Distinguished Chairpersons of the Political Groups of the European Parliament, Re: European Parliament’s draft report on Turkey’s progress to accession The EUTCC seeks to promote the accession of Turkey as a member of the EU, in order to guarantee respect for human and minority rights and a peaceful, democratic and long-term solution to the Kurdish situation. To this end, it monitors and conducts regular audits of the European Union’s performance in ensuring Turkey’s full compliance with the accession criteria, as defined within the meaning of the accession agreements. We therefore submit an assessment of the implementation gaps that exist in Turkey’s domestic law that includes comments on the content of the draft parliamentary report which we believe you will find to be useful in light of the upcoming debate. In order that Turkish accession retains credibility and fulfils its potential as a force for democratisation in Turkey, it is vital that the process is consistent with the human rights criteria lain out in Copenhagen in 1993. As the Council of Europe openly acknowledged in its Parliamentary Assembly in 2004, EU membership is predicated on a just resolution to the Kurdish question and attainment of democratic standards equivalent to those in other EU member states. Mounting evidence suggests that since the opening of accession negotiations a sense of complacency has pervaded the Turkish government’s attitude towards full implementation of the reforms. The EUTCC is concerned that without pressure from the EU on Turkey to keep the promises it has made, the human rights situation in the country will remain fundamentally unchanged. Torture Despite Deputy Prime Minister Abdullah Gül’s encouraging statement in 2003 that Turkey has a “zero tolerance” policy towards torture, the legal amendments that have thus far been enacted have fallen short of this goal. Instances of torture in Turkey continue to be widespread in the Kurdish areas and little has been done to end the culture of impunity that purveys amongst security personnel. Encouragingly, during 2005, courts investigated numerous allegations of torture by state security forces. There were 232 convictions out of the 531 cases that actually went to full verdict. Meanwhile a staggering 1005 were acquitted. Of the convictions, only 37 carried jail sentences, and the rest received fines or other reprimands; statistics which are not encouraging for the 34 preparatory investigations that were launched in June against police officers in Diyarbakir alleging torture of children and adults during and after the disturbances in the city at the end of March 2006. Paragraph 7 of the draft report does go some way to expressing some of our concerns at the high rate of instances of torture. However, we consider it crucial that the report highlights the failings in Turkish law which is allowing these practices to continue. Turkey has made great strides in abolishing incommunicado detention by guaranteeing detainees immediate access to a lawyer. All this work will be undone once the new Anti-terror law comes into force (discussed further below). Article 9 states that during detention, the detained suspect’s right to meet with a lawyer can be restricted for a period up to 24 hours – the period when the detainee is at the greatest risk of being tortured. These concerns are amplified by the apparent contempt security agents have shown to the rights of detainees. Reports suggest that lawyers’ access to clients has been restricted until a statement is signed, and arrests are often registered at the Police station several hours —and sometimes days— after taking place in order to extend the detention period. As the practice of torture is prevalent outside of detention centres , Turkey must monitor more closely the practical effect of provisions in the new Code of Criminal Procedure and the Law on the Execution of Sentences, which allow the transfer of detainees from a detention centre, to see if they are permitting torture. Effective medical examinations of detainees are crucially important in the fight against torture, as security forces have adopted methods which do not leave any physical signs on the body to avoid detection to circumvent the legal amendments. The medical examinations are, though, inadequate; they are usually brief and informal, and detainees have been refused access to a second examination by the authorities. More training of medical practitioners is needed as only 300 out of the 80,000 doctors in Turkey have the forensic skills to diagnose instances of torture. Minority rights We welcome the points raised by paragraphs 14 to 20 of the draft report regarding the protection of minorities in Turkey. Our concern is that this section contains little reference, other than in paragraph 20, to the treatment of the Kurds as a minority in Turkey. The fundamental problem is that Turkish law does not afford recognition to ethnic groups as a “minority” under law, as the Turkish constitution follows the strict definition under article 39 of the Treaty of Lausanne which states that only the rights of Turkish nationals belonging to “non-Moslem minorities” will benefit from legal protection. Articles 14, 26, 27 and 28 of the constitution allow Turkish authorities to criminalise non-violent expression of ethnic identity simply on the basis that they are contrary to the constitutional definition of “Turkish” and a danger to the integrity of the state. The ramifications of this are evidenced by the trial of Professor Baskın Oran and Professor İbrahim Özden Kaboğlu who were prosecuted for simply arguing, in a report commissioned by the Prime Minister’s own office, that “Turk" is an identity of only one ethnic group and that Turkey also includes other ethnic groups such as "Kurd" or "Arab". Even commonplace expressions of identity, that are taken for granted in other European states, are subject to restriction. The Kurds were unable to officially register non-Turkish names for years in Turkey. The Registration Act now allows children to be given names that do not “offend the public” but this has been used in practice to refer to names only using the Turkish language’s alphabet. Kurdish names with the letters “w”, “x” and “q” cannot be officially recognised and used, effectively prohibiting their usage altogether. In addition, article 49(9) of the constitution continues to maintain that no language other than Turkish can be taught as mother tongue to Turkish citizens at institutions of training or education. The lack of any constitutional recognition of cultural, ethnic or linguistic minorities makes addressing access to minority rights impossible. We believe that the amendments that Turkey has made to its constitution do not go far enough. The European Parliament must urge Turkey in paragraph 12 of the report to address these constitutional concerns in order to offer meaningful protection to the rights of minorities. Freedom of expression We support wholeheartedly paragraph 6 of the draft report which calls on Turkey to amend the provisions of the revised Turkish penal code (TCK) in order to protect the right to free expression as enshrined by article 10 of the European Convention on Human Rights. Prosecutions continue to be frequently instigated despite the revision of the TCK in 2005, with over 60 free expression cases being pursued in the last year. In the first week of June 2006 alone, courts in Istanbul heard 6 cases involving the freedom of expression. We believe, however, that the wording of the draft report’s conclusion in paragraph G that the acquittal of Professor Ibrahim Kaboglu and Professor Baskin Oran is a “positive development” is misleading. Even the instigation of a criminal prosecution against individuals expressing a legitimate opinion tears at the heart of the right to free expression enshrined by article 10. The fact that the charges in most free expression cases are often dropped once the case provokes international condemnation does not negate the “chilling effect” that they have on free speech. Prosecutions, no matter how spurious, taint the work of human rights defenders with the smear of illegality and criminality, undermining their work in the eyes of the public. Court appearances are time consuming, inhibiting human rights defenders, and those organisations that rely on them, from carrying out their work and slowing down the progress of society on every level. With financial support from the EU, the Turkish government has started a program of human rights training for judges, prosecutors and lawyers but the continuing frequency of prosecutions and convictions of writers and journalists in Turkey would suggest that this program needs to be pursued with more vigor as fundamental human rights principles have failed to fully take hold in the adjudication process. It is crucial that international and European human rights instruments are fully assimilated into the Turkish legal consciousness. Turkey must review its training process and monitor judicial decisions more closely to fully assess its success. Democracy and the rule of law We welcome the reference in paragraph 11 of the draft report which calls for Turkey to reform its electoral law which is discriminatory towards the Kurds and their political representation and remains one of the fundamental impediments to Turkey attaining true democratic status. Until the ten percent threshold rule is amended, the Kurds as a minority group do not and cannot have any political representation in parliament which can represent their interests and put forward their agenda. Turkey must also amend its Political Parties law so that political parties that include Kurdish Rights in their platform are able to discuss these issues in Kurdish. Leaders of Hak-Par (the Rights and Freedoms Party) appeared before a court in June for speaking Kurdish at their party congress. We believe it is imperative that the report states that Turkey must amend the Political Parties law which forbids political parties from using any other language other than Turkish in written material, public meetings or in video or audio cassettes. In this regard, it is vital that Turkey addresses article 140 of the Constitution which ties the administrative functions of the judiciary to the Ministry of Justice, creating a direct link between the judiciary and the executive, and undermining the former’s independence. Turkey must also address the unduly restrictive legal regime that governs the relationship between a lawyer and their client if it is to adhere to standards of due process and the right to a fair trial under article 6 of the European Convention on Human Rights. The work of defence lawyers is impeded by restrictions on client confidentiality and by the risk of being exposed to a criminal investigation. A lawyer can be immediately suspended before any guilt is established and he or she cannot visit or contact their client. Human rights defenders who are often subject to and specifically targeted for prosecution can be permanently prevented from representing their clients, as the Code of Criminal Procedure prevents lawyers who have been prosecuted for an offence from representing clients who have been charged with similar crimes. These provisions seem to be designed to unduly frustrate the work of the defence team, placing the principle of “equality of arms” in jeopardy. Security situation in the Kurdish areas of Turkey The EUTCC strongly believes that the resolution of the conflict in the southeast is central to the establishment of a stable and democratic Turkey and to bringing about an end to human rights violations in the region. We commend the European Parliament for calling on the Turkish government to pursue a democratic solution to the conflict and for recognising that the problem in the Kurdish areas has political and economic dimensions (paragraph 24). We are, however, concerned with wording of paragraph 21 of the draft report. It fails to acknowledge the inflammatory and provocative effect that the human rights violations committed by state security forces have on the level of violence in the region. As we have mentioned above, instances of torture are still prevalent in the region. Security forces have shown a hard-line attitude towards unarmed civilians and aggressive dispersal tactics during pro-Kurdish protests. There have been a number of violent clashes between police and civilians, with reports of police firing on civilians and children. A fact finding mission sent by Kurdish Human Rights Project (a founder member of the EUTCC) to the southeast region in April 2006 found that the rule of law was clearly put aside during the security forces’ handling of the violence that sparked following the funerals of PKK guerrillas at the end of March 2006. Police used indiscriminate, disproportionate and lethal force, clearly condoned by their superiors, chillingly reminiscent to many of the security force’s behaviour under the state of emergency during the 1990s. Ten civilians lost their lives, including three children; hundreds of civilians were detained, many of whom have alleged that there were tortured during their detention. The report must provide an impartial view of the situation in the Kurdish areas of Turkey to maintain the EU’s political objectivity. We urge the European Parliament to acknowledge that violence from both parties has contributed to the resurgence in hostilities, which must be halted in order for a democratic solution to be reached. The draft report also neglects to mention that the ongoing conflict has also impacted women severely, leading to the use of sexual violence by state security forces as a means to humiliate and weaken the Kurdish community. The violence in the region also dissuades communities from abandoning traditional practices that violate human rights. The ongoing conflict and continuing spiral of violence can be directly linked to the rise in incidences of domestic violence, honour crimes and the number of female suicides. The EUTCC commends the Turkish government for enacting the Law on Compensation for Damage Arising from Terror and Combating Terror (Law No. 5233). However, paragraph 25 of the draft report makes no mention of the inherent flaws in the scheme which will mean that the majority of IDPs will not receive the compensation they are owed for the losses they have incurred within the context of the conflict. The compensation scheme will not offer redress to those who left their homes of their own “free will” or compensate for losses sustained before 1987. The documentation requirements for receiving compensation are burdensome, requiring the production of deeds to property which are impossible for many IDPs to lay claim to. The scheme has also awarded sums of money that are below what is recommended by the European Court of Human Rights. The new anti-terror law The draft report must be stronger in its condemnation of the amendments to the 1991 Law on the Fight against Terrorism (Act 3713) that have recently been passed by the Turkish Parliament. The language used in paragraph 4 of the draft report which states that the European Parliament “expects that the new Anti-Terror Law will not further restrict the exercise of fundamental rights and freedoms” is disingenuous. The EUTCC believes that these amendments are fundamentally flawed, are clearly a threat to rights and freedoms in Turkey and will undo the good work that the reform process has already achieved. The anti-terror law is an affront to the rule of law. The poor drafting of the legislation means that it will be difficult for the ordinary, law-abiding individual to regulate his/her behaviour so as to avoid criminal liability. The likely result will be that individuals will be prosecuted for “terrorist” acts without having any real links to the terrorist organisation itself. Article 6 has the potential to label anyone who expresses an idea contrary to the official state ideology as a “terrorist”, as its ambiguous terms will almost assuredly lead to legitimate criticism being incorrectly labelled as “terrorist propaganda”. In addition, the offence of “financing terror” contained in article 7 is couched in vague and confusing language, criminalising those who “willingly” provide funds “directly or indirectly” knowing they would “entirely or partially” be used to commit terror crimes. This offence could potentially apply to overly broad number of crimes and their funding. The amendments also disproportionately punish behaviour that, to the layman, would not constitute “terrorism”. Under article 6, the types of activity that will be deemed to be a “terrorist offence” are broadened to include the carrying of an emblem, signs or placards of a terrorist organisation and attempting to conceal your own identity during a demonstration. It must be pointed out to Turkey that extending the list of terrorist offences carries the risk of diverting police time away from the real threat posed by individuals who utilise violent means to further their cause. Conclusion Despite our unease at the stalling reform process in Turkey, the EUTCC continues to support the accession process in Turkey. We are convinced that accession, with its attendant enforceable standards on human and minority rights, remains by far the best hope for mainstreaming Kurdish concerns and bringing human rights reform and the Kurdish issue to the fore of political debate in Brussels and beyond. This anticipation is based on the belief that the institutions of the EU will ensure that the prospect of EU membership remains a powerful incentive for change in Turkey by adopting a robust approach to ensuring Turkish compliance with accession standards. We would therefore be grateful if you could raise the issues discussed in this letter during the debate in the European Parliament so that they may be included in the final draft of the report and be presented to the Turkish administration. Yours faithfully, Kariane Westrheim |