Constitutional Reform in Turkey Gives Hope for Better Respect for Human Rights

Chairwoman Hautala addressed a “Turkey in Europe” meeting of Greens/EFA Group in Istanbul on 1.11.2010.[:] 



In my speech I underlined that while the improvement in the human rights situation in the country is very much likely after the constitutional referendum, the key to achieving any development depends on effective implementation of the new provisions. I also expressed my pleasure for improvements in the human rights overall situation in the country but underlined that much has to be done before the situation can be considered even remotely satisfactory.

On the basis of our discussion in Istanbul and our recent hearing at the Subcommittee on human rights situation in Turkey, I would like to share some further thoughts on the human rights picture and the recent reforms.

The constitution reform package was approved on 12 September 2010. This envisages changes in 24 articles of the 1982 Constitution and abolishes a provisional article.  These changes have invited hopes throughout the world for more democracy and better respect for human rights in Turkey.
However, despite progress there is still much to do. Latest resolution by the European Parliament on the Commission annual report, from 10 February 2010, criticised the insufficient implementation of legislation relevant to the Copenhagen political criteria.

European Parliament Subcommittee on Human Rights discussed the human rights situation in Turkey on 25th of October. The Constitutional reform was heartily welcomed by the Members of the European Parliament. Many issues were however considered in urgent need of attention; rights of minorities, freedom of speech and media, treatment of prisoners and freedom of religion.

It is important to take careful note of the impact of the Constitution on human rights and democracy;

The EU welcomed the constitutional changes that, among many other things, prohibit gender discrimination and strengthen rights to privacy and civil liberties in general. Indeed, the European Parliament has repeatedly stressed in its resolutions the importance for Turkey to proceed with major constitutional reform.

Even in any democratic countries, these are not straightforward issues. There are numerous cases in the European Court of Human Rights concerning discrimination, privacy and violations of civil liberties in the EU member states.

However, with delays and some missteps the EU member states have gradually improved their record. While the member states keep working on their own standards they are entitled to expect this from their partners.

Indeed, the Constitution reform matters greatly for human rights. In addition to crucially enhancing non-discrimination, privacy and civil liberties, the amendments provide for more accountability for human rights violations.

For example, as we have learned, there is already great interest amongst the public for pressing charges against Kenan Evren, the general who led the 1980 coup. After overthrowing of the government, over half a million Turks were tortured and 51 murdered by hanging. Amendments to the Constitution now allow for the prosecution of those generals who are responsible for these crimes.

Most importantly, the amendments to the Constitution ensure a major overhaul of the judiciary. Aim is to enhance its independence, neutrality, efficiency and competency. Again, this is another sore spot in many democratic and undemocratic countries. All too often our Subcommittee receives reports of judicial harassment, interference by the authorities in the investigation and conduct of the trial and outright fabricated sentences by the court to silence vocal critics.

Transparent appointment of judges and prosecutors is key element in ensuring the independence of the judiciary. The amendments to the Constitution strengthen this.
Constitutional courts are vitally important in guarding the balance of interests in any society and it is hearting to see that the amendments have increased the size of this court and the judicial body in charge of appointments.

The reform also establishes an institution for the Ombudsman. This institution plays a key role in upholding the rule of law and its creation is thus most welcome.

Vitally important is also the commitment to establish a national human rights institution in line with Paris Principles. This institution will serve also as the national preventive mechanism under the OPCAT.

In particular, it is to be welcomed that discrimination on grounds of sexual identity, disability and ethnic origin has been now included. Many think that the reform falls short on the rights of minorities, however. The calls from largest pro-Kurdish party, Peace and Democracy (BDP), to boycott the referendum were heeded in large numbers. The Peace and Democracy party considers that the referendum failed to address the issues of greater political and cultural autonomy that they have been asking for. This dispute is, of course, only a reflection of a bigger, underlying problem of the rights of Kurdish minority in Turkey. Until the Kurdish problem is resolved, all progress remains, at best, feeble.

Against this background, it is necessary to take not of the overall human rights situation in the country;

At its Universal Periodic Review on 10th of May, the delegation of Turkey emphasised that important steps in the protection of human rights had been taken over the past decade and, while noting the need for further legal and administrative measures, expressed its determination and its political will to pursue its efforts.

Indeed, according to the EC progress report 2009 on Turkey, the situation of human rights still requires a major effort by the Turkish authorities.

Freedom of expression is the cornerstone of any democracy and must thus be given due assessment;

Vibrant public debate is the single most important guarantee of the progress in any society. While the debate in Turkey is increasingly open and critical, criminalisation of opinion remains overarching obstacle in realization of human rights in Turkey.

Despite the revision of the 301 (criminalisation of “denigrating Turkish identity in public”) of the Turkish Criminal Code (TCC) and decline in prosecutions, it remains an immense restriction on freedom of speech in Turkey. Furthermore, a number of other provisions of the Turkish Criminal Code are used to restrict freedom of expression still, concerning very loose concepts such as dignity and public order.

Turkish legal framework still fails to provide sufficient guarantees for exercising freedom of expression in line with the European Convention on Human Rights (ECHR) and the ECtHR case law.

This legal uncertainty can force journalists, academics and other publishers to exercise harsh self-censorship in fear of unpredictable prosecution and even conviction.

Indeed, the situation of journalists seems most distressing. Over 700 Turkish journalists are facing law suits, with the threat of imprisonment. Recently the Turkish Journalists Union (TGS) asked for the immediate and unconditional release of more than 40 journalists. Newspapers still face temporary closures.

There is also a widespread blockage on access to websites such as YouTube since May 2008, while Court cases are pending against Facebook, Google, and other sites.

Torture remains a crucial concern in Turkey;

I am aware that the government has made efforts to ensure that legal safeguards to prevent torture are complied with.

These are clearly not enough. The Subcommittee on Human Rights has received deeply distressing reports over the continuing police brutality and ill-treatment during arrest and in places of detention, despite the fact of least allegations of torture and ill-treatment in its history in 2009.

According to the Turkish Human Rights Foundation’s (TİHV) 2009 report “only” 532 people claimed that they were tortured in 2009 and six of them died in custody. In the first six months of 2010, 145 people filed applications concerning torture or ill treatment.

In addition, concerning alleged abuse, no independent forensic medical doctors are recognised by courts, which prevents development of independent forensic services in Turkey. Neither are lawyers allowed to attend forensic examinations.

Turkey is not a member to the UN Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) and in strongest terms I urge the authorities to ratify this without delay. Turkey is planning to ratify the optional protocol after this has been delayed since 2005. 

But most importantly, Turkish courts have been too reluctant to hold members of the security and police force responsible for abuse and ill-treatment of civilians. Fizzling away with the charges of abuse and misconduct against the security personnel feed into the climate of impunity and will ensure that the torture will continue.

It is equally important to pay attention to the rights of minorities in Turkey;

I am compelled to raise this matter as at the hearing in the Subcommittee on Human Rights on 25th of October, the Members seemed clearly very much concerned and frustrated with the current stagnation concerning the rights of minorities in Turkey.

Government’s announcement to Turkish parliament in November 2009 that it is committed to upholding the human rights of Kurds in Turkey, was widely welcomed as a sign of hope for progress.

Turkey’s approach, however, remains restrictive.

Turkey is a party to the UN International Covenant on Civil and Political Rights, but its reservations regarding the rights of minorities are causes for concern. Reservations concerning right to education to the UN Covenant on Economic, Social and Cultural Rights are similarly distressing.

Of great disappointment is the fact that Turkey has not signed the Council of Europe Framework Convention for the Protection of National Minorities or the European Charter for Regional or Minority Languages.

While broadcasting in Kurdish has increased, I cannot but condemn in strongest terms that pending criminal convictions against DTP members for using the Kurdish in political life. The use of any language other than Turkish in political life is illegal under the Law on Elections and Political Parties, but cases are rarely launched. The cases of these DTP members are unfortunately accurately indicative of the multiple challenges Kurdish speaker still faces in Turkey at work, in school and in hospital.

It is equally inexcusable that in July 2009, the Deputy Chief Prosecutor of the Court of Cassation applied for the removal of the parliamentary immunity of several DTP members. The charges against them include using the Kurdish language in Parliament.




All in all, it will take time to see the full effect of the Constitutional reform. We can wholeheartedly welcome its provisions supporting human rights in Turkey. The key is now, however, to implement its many great ideas. As we have learned, there is much to do – and much to not do. In good cooperation with its European partners Turkey can achieve concrete progress in human rights field. We, the Subcommittee on Human Rights, are willing to engage to achieve these improvements together.