Reports
Perspectives on the Accession Negotiations Between the EU and TurkeyPERSPECTIVES ON THE ACCESSION NEGOTIATIONS BETWEEN THE EU AND TURKEY
The EU Turkey Civic Commission (EUTCC) would like to present its views on the perspectives of the accession negotiations between the European Union and Turkey. The EUTCC is genuinely supportive of Turkey’s aspirations to become a member of the EU. We believe this is the best opportunity Turkey will have to become a truly democratic country, with full respect for the rule of law and human rights. However, it is obvious that Turkish membership must be conditional on the full implementation of all accession criteria, including respect for and protection of minorities There must be no bargaining or reductions in the standards of compliance for geopolitical or other extraneous reasons. After some observations on the 2005 Progress Report, the present paper limits itself to discussing five main problem areas, which in many ways represent an acid test for Turkey’s aspirations to membership of the European Union: · Torture
The 2005 Progress Report describes in some detail both the achievements and shortcomings with regard to Turkey’s progress towards implementation of the accession criteria. The EUTCC does realise that the EU and the Government of Turkey are operating within the framework of normal diplomatic relations. This understandably colours the language of the Progress Report, which tends to give the reader the impression that the overall progress has been substantial, and that the remaining problems are limited, primarily relating to improved implementation. This is also how the Report has been interpreted in the media and the political circles in Turkey. However, when reading all the cases where no or only limited progress has been achieved, the rather rosy language in many parts of the Report is not substantiated by the hard facts on the ground. Even less rosy is the picture when one realises that the cases referred to in the Report are just examples, the tip of an iceberg. Generally speaking, it is primarily at the level of adoption of legislation that some real progress has been achieved. And even at that level, much remains to be done. In fact, in some cases, there has been regression rather than progress. This includes what was proclaimed to be the big step forward: the new Penal Code. However, the reality is that there has been a rush among members of the judiciary to clamp down on freedom of expression, based on authoritarian legislation such as the new Article 301. It is noteworthy that most of the recent cases where the Turkish judiciary has failed blatantly in recognising and following European human rights standards, are related to the situation of “non-Turkish citizens”. This applies particularly to the situation of the greatest non-Turkish population, the Kurds. The cases have revealed and emphasized, again and again, how deep-rooted and sensitive the Kurdish issue is in a strongly nationalistic state. The EUTCC believes that this will prove to be the major hurdle on the way to a genuine acceptance and implementation of European values and standards. Freedom of expression can be accepted generally in Turkey, as long as it does not touch the raw nerve: the nationalistic ideology and its sequel, the Kurdish problem. The Ottoman empire, with its multi-ethnic/cultural and political structure gave the Kurdish people a great degree of autonomy. In the new Turkish republic, the Kurdish people were not able to find a place either as a minority or as a cultural-political identity group. The discrimination against the Kurds and the assimilation policies led to uprisings and unrest, which have continued until our time. In turn, this reinforced anti-democratic and authoritarian political structures, hampering the development of a genuine democratic society. In the Turkish society, Kurdish women are the most vulnerable to the often uncontrolled persecution and harassment by state officials, security, police and prison personnel. Special emphasis should be placed on improving their situation within the reform process, and monitored closely by the EU. The EUTCC believes there can be no progress in resolving the Kurdish problem, unless the Turkish political establishment, as well as major parts of the public, accept the rights of the Kurdish population. This issue is not focused on adequately and clearly in the Progress Report. As a result, Turkish authorities, media and large sectors of the population, were triumphant when reading the Progress Report and discovering that the Kurds were not described as a minority. Nationalistic elements are using this as a shield to protect their views, denying the identity and the rights of 15 million Kurds. The Turkish authorities have had little difficulty so far in accepting the Copenhagen criteria, which specifically obliges Turkey to ensure “respect for and protection of minorities”. However, Turkey has officially made it abundantly clear that this acceptance is limited to those people who are defined as minorities in the 1923 Lausanne Treaty. In other words, Turkey claims the exclusive right for itself to determine the extent of its commitments to the EU and its standards and values. So far, this has not been challenged explicitly by the EU. Instead of describing the Kurdish problem as a main problem that Turkey must face and resolve, the Report refers to “the situation in the Southeast”, the expression favoured by Turkey. Only the Greeks are directly referred to as a “minority”, again in line with the Turkish official position, although the Report does state that under relevant international and European standards, “other communities …. could [emphasis added] qualify as minorities”. This ambiguous terminology lends itself to misleading the people of Turkey, including many within the political establishment. Reading the Report, they believe that the EU does not consider or does not insist that the Kurdish population have rights under international and European law and standards, whether the Kurds are conceived as a “people”, a “nation” or as a “minority”. A genuine implementation of the Copenhagen criteria can only come about after the Kurdish problem has been both recognised and resolved. The Human Rights Advisory Board under the Prime Minister’s office was asked to produce a report to propose democratic and human rights reforms. The report created an uproar when it was published in 2004. The mistake the authors made, was to urge the government to “grant more rights to minorities”, both religious and ethnic.The report described as “paranoia” the idea that granting cultural rights to minorities could lead to the country’s break-up. It said Turkey’s understanding of minority rights had fallen behind universal norms, and proposed far-reaching reforms in the Constitution and other laws. The public prosecutor promptly brought charges against the chairman and the author, for insulting Turkishness and “inciting hatred and enmity”, with its “inflammatory” and “treasonous” contents. The government disowned the report, and has not taken any action on it, thus reinforcing the suspicion that the appointment of the Board was just a window-dressing, prior to the decision on Turkey’ EU member candidacy. The case against the two professors responsible for the report is pending before the courts. They face up to five years in prison if found guilty. Prime Minister Erdogan said in September 2005 that he recognised the “Kurdish issue”, and that it must be resolved through “more democratization”. His statements could have given some degree of hope, and to many Kurds it did. On the other hand it gave rise to a wave of loud protest among nationalistic circles, including critical comments from the military. This shows the admittedly difficult balancing act that the Government must perform between the reforms required by the EU and the demands of the established nationalistic ideology and its proponents, including the military. This is probably the reason why, half a year later, no steps have been taken, not even at the verbal level, towards a resolution of the Kurdish problem. This lack of progress in at least making some serious attempts to resolve the most difficult problem Turkey is facing, is not acceptable. It shows the face of a government that is not serious about carrying out reforms that it has promised again and again to implement. The EU must insist on a realistic “roadmap” to solve the Kurdish problem.
Although there are conflicting reports and views, it appears that torture has become less wide-spread than it used to be until recent times. This is particularly the case at detention centres. On the other hand there are increasing reports of torture or degrading treatment outside of the detention centres, e.g. during apprehension or transportation to detention centres. A complete picture of the situation on the ground is for obvious reasons not easy to gather and document. The Turkish authorities are not particularly forthcoming in this regard. It is illustrating to read in the report of 08.12.2005 from the European Committee for the Prevention of Torture (CPT): “Not for the first time during a CPT visit, the Committee’s delegation found that certain law enforcement establishments which (according to the custody registers) regularly hold a considerable number of detainees were practically if not totally empty [emphasis added] during the time of the delegation’s visit.” (Paragraph 6 of the Report). In other words, these detention centres had been emptied before the visit of the CPT to prevent embarrassing situations for the Turkish authorities! Nonetheless, the CPT report refers to “numerous persons” alleging ill-treatment, e.g.: · “blows to the body, including on occasion falaka)”, The CPT also expressed its regret that “the Turkish authorities have not provided replies to a number of issues” raised by the CPT during its visit in 2004, some of which “were clearly of an urgent nature”. The CPT also complained about “inadequate or incomplete” response to its report on the September 2003 visit. The CPT was in particular concerned about the failure to implement existing regulations concerning the medical inspection of detainees. The CPT stated that in many cases, the law enforcement officers were present during the medical examination, which in many cases was very perfunctory. The picture emerging from the CPT report is of a systematic and deliberate procedure to evade the responsibilities of the Turkish authorities, and to protect those who are guilty of torture. The reports of Turkish and international NGOs are also not indicating much progress. According to the records of the Human Rights Foundation of Turkey (HRFT), in its annual report dated 29.12.2005: · 5 persons died in detention in 2005, The training of police and security forces does not appear to have had the desired effects. There are too many reports of police brutality, particularly connected with public demonstrations. The beating and spraying with pepper gas of men and women on the International Women’s Day in March are just one of many examples. It was not helpful that Prime Minister Erdogan criticized the press for having made critical comments on the case. It is sad to observe that the system of extra-judicial executions performed by the state’s security forces or with their collusion has not disappeared. There have been various incidents, notably the Semdinli affair, where it appears clear that security forces have been guilty of executions and killings. The Progress Report notes that the security situation has worsened, and blame this entirely on “the resumption of violence by the PKK”. It does note with concern that “the security forces sometimes respond inappropriately”. However, incidents like Semdinli indicate that this is not a question of an “inappropriate” response to attacks by PKK. The reality is that certain organized groups within the state have carried out planned attacks on civilians and then tried to hold PKK responsible for these attacks. Members of the Parliamentary Commission investigating the Semdinli incident have vociferously expressed their disquiet at what they perceive as efforts to manipulate the presentation of relevant evidence. These incidents have resulted in protests and clashes between civilians and security forces, during which several people were killed and many more injured. The situation is volatile. Some Turkish media have speculated that “elements in the ‘deep state’ are trying to provoke instability in order to win a freer hand in the South East” (Turkish Daily News [TDN], 17/01/2006). The military and other parts of the “deep state” continue to accuse the PKK of organising and carrying out all these killings.
The Progress Report optimistically predicts a “continued reduction in the number of prosecutions and particularly convictions” in freedom of expression cases, although it notes that there remain various provisions in the laws which are a “potential” threat to freedom of expression. Foreign Minister Abdullah Gul proclaimed proudly to the Turkish parliament on 21 December that there was no person in Turkish prisons convicted for the expression of non-violent thoughts (HRFT annual report, 29/12/2005). At the end of 2005, the situation on the ground looks much bleaker. It has become clear that several articles of the new Penal Code are not only “potential” threats, but are part of the daily reality in Turkey. The present report would become far too voluminous if all the individual cases were to be discussed here. Some of them are widely known, others do not reach the headlines in the media. The most illustrious example is perhaps the infamous new Article 301 of the Penal Code. Rather than widening the freedom of expression, it has been used as a powerful tool of repression. According to a recent report from “Reporters without Borders”, this article has been used to charge or convict at least 22 journalists and writers since June 2005. The latest conviction was on 27 December, when Zulkuf Kisanik got a six months prison sentence for writing a book investigating the destruction of Kurdish villages. A realistic and sad picture of the Government’s priorities is given by the Justice Minister’s attitude relating to the Pamuk case. Firstly, he refused to consider prompt action to remedy the obvious anomaly, saying he needed to see how the new article would be applied in practice. 22 cases in six months were obviously not sufficient for him to discover the anomaly. Secondly, he criticized Pamuk for not making “conciliatory remarks” and hinted that such a move “would have prevented his prosecution”. He advised Pamuk to state publicly: “I apologize to the nation”! (TDN, 07/01/2006). As if that was not enough, the Justice Minister, while admitting the flaws in the justice system, added that “Pamuk was also guilty”(Zaman, 27.01.2006). According to the Turkish Publishers Union 2005 report, 37 writers were tried in 2004-2005, and cases initiated against 43 books and 4 compilations from 25 publishing houses. According to the HRFT, (29/12/2005) only in the month of December there were trials in cases against: · 2 executives of political parties, Not a single private broadcaster has so far been permitted to broadcast in Kurdish (HRW, Annual Report 2005). There are some new and disturbing developments in freedom of expression cases. One is the trend of nationalistic groups and individuals (often with connections to the “deep state”) to file complaints and urge the prosecutors to “do their duty”! This has resulted in several cases being opened, which are manifestly unfounded under European standards (one of the cases referred to the newly coined expression: “the deep judiciary”!). In addition, these nationalistic groups interfere with an orderly conduct of the trials,which the judges seem unable to control. The training provided by the EU to the judiciary (15 mill € allocated for 2005) seems to have had only limited effect so far. Another trend is based on a bizarre interpretation of the article that prohibits attempts to influence the decisions of the judiciary, as an alternative crime to “insults” against the court. These provisions are now being construed so as to stifle any negative comments on decisions within the judiciary, in cases that are uncomfortable for the nationalistic ideology. For Turkey the goal seems to be to ensure that radio and TV programs in Kurdish are fully controlled by the state. Not surprisingly, no prosecution has been initiated or proposed against Prime Minister Erdogan for having condemned in strong words several court decisions. Nor was General Büyükanit investigated for having declared immediately after one of his men had been arrested in connection with the Semdinli affair, that the man could not possibly have committed any crime. Not surprisingly, he said he believed the PKK was behind the Semdinli bombing. Some examples of recent freedom of expression cases are: · the charges made against Hrant Dink and four other persons for “attempting to influence the judiciary” (FIDH-HRA-HRFT, 28/12/2005. Their offence was to criticize the sentence against Dink in October for “denigrating the Turkish identity”. The charge followed a complaint by the nationalistic Union of Jurists.
Although some reforms have been made in the legislation, the harassment of associations that are critical of government policies continues in multiple forms. There is also a need for further reforms in the legislation, e.g. to remove the ban on political parties “using languages other than Turkish” (read: Kurdish). The new law on associations and its implementing regulations have not prevented the authorities from intervening in the internal affairs, and placing obstacles for their registration, etc. From November 2004 to December 2005, 55 cases and six investigations were initiated against the executives of 14 branches of the Human Rights Association (HRA). The chairman and board members of the Bingöl branch of the HRA were subjected to some 92 investigations and 51 court cases since the branch was opened in 2001. (HRFT, 29/12/2005). With a record like this, one may wonder how the HRA has time and resources to carry out its important task in the Turkish society. The case against the teachers’ trade union, Egitim-Sen, is also illustrative of the methods employed to control associations. Faced with a threat of being closed down after a long battle in the courts, Egitim-Sen had no choice other than deleting from its statutes the reference to its objectives including the teaching of mother tongues. Its application to the European Court of Human Rights will take a long time to be decided, and in the meanwhile the Turkish state ideology will prevail, in spite of critical remarks from the EU and other European institutions. The case against the pro-Kurdish party DEHAP is continuing, although its functions have been assumed by a new political party, in the traditional response by party members to attempts by the authorities to close down parties critical to the prevailing ideology. Other examples of restrictive, harrassing and repressive practices are: d) The Judiciary By now, many efforts have been made by the EU to aid the Turkish authorities in securing compliance, or at least better compliance, with European standards, at great expense to European taxpayers. Thousands of the members of the judiciary and the security forces have been given training, manuals and directives about the requirements of European standards. Even those who have not still participated in formal training programs must by now have become aware that, for example, the European Convention on Human Rights is a binding part of Turkish domestic law, and even takes precedence over domestic law that may be in contradiction with domestic law and jurisprudence. Against this background, it is disturbing, to say the least, that prosecutors and judges (with a few honourable exceptions) act as if they had no notion of the stipulations of the Convention. For example, the courts fail to distinguish between critical, but peaceful opinions, and opinions inciting to violence. Another “technique” is to assume that a defendant who has expressed an opinion, e.g. on mother tongue teaching, which coincides with statements by the PKK, is himself a terrorist or at least a supporter of terrorism. With this kind of “jurisprudence” and precedents, no peaceful discussion is possible about important problems in society. It is also troublesome to observe cases where the judiciary, instead of applying clear precedents from the Strasbourg courts, follow signals from the military and other nationalistic elements of the “deep state”. Given all the training and information available to the judiciary, it cannot be for lack of knowledge that they so often, for various reasons, deliberately choose to follow the “deep state” logic. Paradoxically, it may be said that the judiciary is too independent of the Government, which after all has given many signals that it wishes the judiciary to comply with European standards. The few selected cases referred to above give witness to this contradiction. They also demonstrate that the task of change is enormous and that a resolution most of all requires the uprooting of the nationalistic ideology. As mentioned above, the numerous cases which shock the European public are just the tip of an iceberg. Orhan Pamuk will never have to go jail. What is really worrying is the huge amount of cases that do not catch the attention of the media, the politicians and the EU. These are the thousands who daily suffer torture and degrading treatment at the hands of the security forces, harassment by the police and prosecutors, unjust sentencing and cruel and inhuman treatment in prisons and detention centre. Take the example of the man, apparently somewhat mentally disturbed, who had spray-painted a few statues of Atatürk in some school yards. The sentence for this crime against “the memory of Atatürk” was 22 years in prison! More than many other cases, this one illustrates a judiciary gone blind by an authoritarian and outdated ideology. It also illustrates the need to eliminate this paranoia, which it must be hoped is not indicative of the sentiments of the vast majority of the people of Turkey. It is an unworthy and unacceptable situation that Turkish and international NGOs, as well as the EU itself, have to play the role of some kind of a “guardian of the court” in the numerous cases where freedom of expression has been denied or punished. The Turkish authorities themselves have demonstrated that they are unable, or unwilling, to prevent, or even to rectify, human rights violations. This failure is partly due to an unwillingness to change the nationalistic ideology, and partly to strong pressures from the “deep state” and other nationalistic elements. Whatever the reasons, the situation may be summarized, as it was done recently by Hurriyet columnist Bekir Coskun: “We all know justice doesn’t exist” (quoted in TDN 25/01/2006), or by TÜSIAD Chairman, Ömer Sabanci, complaining about “courts making decisions as if there have been no changes made in the laws concerning freedom of expression and cultural rights” (TDN 27/01/2006). This appalling situation should not be allowed to persist. Europe must now demand that Turkey must take much more vigorous steps than it has so far been able or willing to take, in order to put its house in order. The Turkish system of justice must be brought up to European standards, as a matter of urgency. To take those steps is not the task of Europe, but of Turkey itself. Failure to take such steps should have consequences for the accession negotiations.
Although on paper the privileged, political role of the military has been reduced to some extent, the realities remain much the same. The military obviously still feel free to intervene in the political agenda, with public statements and other, more subtle forms of pressure. Various cases against persons expressing opinions contrary to the military ideology have been opened by prosecutors, eager to follow clear signals from the military. A recent article in Foreign Affairs (January/February 2006) spells it all out quite clearly. The article is written by a Turkish professor and two majors of the Turkish Armed Forces. The article points out the cohesive nature of the Armed Forces (TGS) and that the military “speaks with one voice”. The authors have not even inserted the traditional caveat that the views expressed are their own personal views. One can therefore safely assume that the article represents the official view of the military. The article raises (and attempts to answer) the question: How much further will the TGS go? Among the many interesting statements of the TGS position are the following: · “None of the reforms the EU still requires of the Turkish government can be achieved without the military’s backing”. In other words, the TGS retains ultimate control and veto over Turkey’s foreign policy. One may safely assume that this article is representative of TGS policy, and that the TGS will never negate its message. It reveals, in a coherent manner, a military that has not wanted to understand what a democratic society is. For the EU, it must be difficult to continue negotiations with the Turkish Government, when it has been explained so explicitly by the “ultimate guardian” of Turkey that the Government may say what it wishes in the negotiations, but the decisions are at the end of the day taken, not by the Government but by the military.
The EUTCC believes that: * Considerable progress has been achieved by Turkey towards meeting the Copenhagen criteria.
Jon Rud |