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European Commission 2014 Turkey Progress Report

Content Regarding Civil Society in Turkey

The following document does not reflect TUSEV’s opinions but includes the content relevant to civil society in Turkey in the European Commission 2014 Turkey Progress Report. 

1.    INTRODUCTION

1.1.  Preface

The Commission and Turkey established priorities for financial assistance under the new Instrument for Pre-accession Assistance (IPA II), set out in the Indicative Strategy Paper for Turkey for the period 2014-2020. This key document was presented to the IPA committee in July and adopted on 26 August. Reforms relating to the rule of law and fundamental rights, home affairs, and civil society are to receive increased funding compared to IPA I. Other priorities include education, employment and social policies. In the sectors of environment, transport, and energy, IPA II will focus on promoting development towards a resource efficient, low carbon economy and on increasing inter-connectivity between Turkey and the EU. In the areas of agriculture and rural development, work will focus on food safety, veterinary and phytosanitary policy and agriculture and fisheries. These priorities will be used as the basis for sector programmes promoting structural reforms, allowing more targeted assistance and improving the impact of financial assistance.

Turkey participates in the following EU programmes: the Seventh Research Framework Programme, Customs, Fiscalis, the Competitiveness and Innovation Framework Programme, Progress, Culture, Lifelong Learning and Youth in Action. Turkey has also recently concluded or is in the process of concluding new agreements for a number of programmes, including: Horizon 2020, Erasmus+, Competitiveness of Enterprises and Small and Mediumsized Enterprises, Creative Europe and Employment and Social Innovation. Turkey participates in the European Environmental Agency and in the European Monitoring Centre for Drugs and Drug Addiction.

2.    POLITICAL CRITERIA AND ENHANCED POLITICAL DIALOGUE

2.1.  Democracy and the rule of law

Constitution

The parliamentary Conciliation Committee achieved preliminary consensus on close to 60 of approximately 170 articles for a new constitution. Following persistent lack of consensus, the ruling Justice and Development Party (AKP) pulled out of the committee in November 2013. The committee was formally dissolved in December. Civil society and business organisations called on all parties to act responsibly and continue the process. Minutes of all of the committee’s deliberations, covering almost 300 sessions, were published on parliament’s website.

There was no progress on adopting laws implementing provisions on protection of personal data, military justice, or laws introducing affirmative-action measures to promote gender equality, which have been pending since the relevant 2010 constitutional amendments were adopted.

Overall, constitutional reform process was put on hold. Yet, it would constitute the most credible avenue for advancing further democratisation of Turkey, providing for the separation of powers and adequate checks and balances guaranteeing freedom, democracy, equality, the rule of law and respect for human rights, including the rights of people belonging to minorities. Future work should build on the democratic and inclusive process, involving broad consultation that characterised the work of the parliamentary Conciliation Committee. Active consultation with the Venice Commission should be pursued.

Parliament

The pattern of insufficient preparation and consultation before adopting key legislation continued. Government- and AKP-sponsored legislation amending laws on the internet, the judiciary, the closure of Dershanes and the National Intelligence Service, were adopted without proper parliamentary debate or adequate consultation of stakeholders and civil society.

An inclusive and consultative approach to law-making remains the exception rather than the rule. The transparency of the legislative process and consultations with all relevant stakeholders needs to become a regular practice.

Ombudsman

Following a number of complaints received on use of force by police officers during the Gezi protests, the Ombudsman issued a report in which it found disproportionate use of force. The report also made a number of recommendations related to i.a. the harmonisation of the Turkish legal framework with European standards, the gradual and proportionate use of force, only when it is essential and under supervision, and the continuous training for law enforcement officers.

Overall, the work of the Ombudsman Institution contributed to raising awareness of citizens’ fundamental rights. The Ombudsman delivered recommendations in line with ECtHR rulings on key issues, such as freedom of assembly and preventing disproportionate use of force by law enforcement officers. The institution needs to contribute pro-actively to raising awareness and continue consolidating civil society’s trust in it. Work is needed to ensure that the institution has the right to act upon its own initiative and to conduct on-the-spot checks.

Measures to ensure adequate follow-up of recommendations by the national administration should be adopted, as well as parliamentary follow-up.

Civil society

The development of an active civil society in Turkey continued. The Ministry of the Interior consulted civil society actors when preparing a law on the collection of aid for associations and other significant reforms. However, apart from such ad hoc consultations, there are no structured participatory mechanisms whereby civil society organisations are able to take an active part in legislative and policymaking process. Government-civil society and parliament civil society relations should be improved through systematic, permanent and structured consultation mechanisms at policy level, as part of the legislative process and with regard to non-legislative acts at all levels of administration.

Civil society organisations continued to be subject to disproportionate state supervision affecting their operations, in particular through auditing. Other legislation continued to be interpreted restrictively vis-à-vis civil society organisations. Concentrating such functions as the registration of associations, fiscal supervision and prevention of illegal activities in a single department of the Ministry of the Interior may lead to restrictive drafting and interpretation of the relevant legislation.

Instead of encouraging domestic private funding of civil society organisations through measures like tax incentives, Turkey continued to complicate their financial management through often disproportionate accountancy requirements. At the same time, public funding for civil society organisations was not sufficiently transparent and rule-based, as tax exemption and public benefit status were granted to a very limited number of civil society organisations by the Council of Ministers, using unclear criteria. Public funds were allocated to civil society organisations via ministries and through project partnership mechanisms, and rarely through grant allocations or service contracts.

The EU-Turkey Civil Society Dialogue programmes continued, contributing to civil society development and a greater recognition of civil society organisations at local level. Overall, there is a growing rights-based civil society in Turkey insisting that the citizen is prioritised in policymaking and administration and that the exercise of fundamental rights is guaranteed by law. Government- and parliament-civil society relations should be improved through systematic, permanent and structured consultation mechanisms at policy level, notably as part of the legislative process. The legal, financial and administrative environment for civil society needs to better support an open society, encouraging active citizenship.

Fight against corruption

Implementation of the 2010-14 national anti-corruption strategy and action plan continued but no information was given to parliament or civil society on the resulting impact. Civil society organisations had very limited opportunities to contribute. Turkey has to decide whether it will adopt an anticorruption strategy and action plan for the period after 2014. Greater political will and civil society involvement are needed if results are to be achieved on the ground so as to establish a track record of investigations, indictments and convictions.

2.2.  Human rights and the protection of minorities

Positive steps were taken with the adoption of the Action Plan on Violations of the Human

Rights and a reduction in the length of pre-trial detention, following which many journalists were released from custody. However, legislation further limiting freedom of expression, including on the Internet, was adopted and the effective exercise of this freedom, and press freedom, was restricted in practice. The blanket bans on YouTube and Twitter raised serious concern, even if later annulled by the Constitutional Court. Intimidating statements by politicians and cases launched against critical journalists, combined with the ownership structure of the media sector, led to widespread self-censorship by media owners and journalists, as well as sacking of journalists.

Turkish legislation and its implementation concerning the right to assembly and regarding intervention by law enforcement officers are still to be brought in line with European standards. The unlawfulness of a demonstration, rather than its non-peaceful nature, is the basic criterion for the use of force to disperse participants, which is not in line with ECtHR case-law. Improvements in the legal framework more strictly regulating the use of force need to be complemented by appropriate training for law enforcement officers. Non-respect of the June and July 2013 circulars from the Ministry of the Interior on the use of tear gas by the riot police and on courses of action in cases of social unrest should be consistently and immediately penalised. Turkish legislation on the right to association still needs to be improved in order to be brought in line with European standards. Legislative and administrative obstacles hindered the financial sustainability of civil society organisations.

On property rights, the implementation of the 2008 Law on Foundations, revised in 2011, continued. Under this legislation, 116 minority community foundations applied for the restitution of a total of 1 560 properties. By April, the Foundations Council had approved the return of 318 properties and the payment of compensation for 21 properties. 1 092 applications were found to be ineligible. Assessment of the remaining applications continued.

4.      ABILITY TO TAKE ON THE OBLIGATIONS OF MEMBERSHIP

4.10. Chapter 10: Information society and media

The Law on Regulation of Publications on the Internet and Combating Offences Committed by Means of such Broadcasts was amended by granting excessive powers to TIB and introducing further restrictions on the freedom of expression online. In March TIB banned access to Twitter and You Tube, which later was restored

4.23. Chapter 23: Judiciary and fundamental rights

Fundamental rights

The ‘Action Plan for the Prevention of Violations of the European Convention on Human

Rights’, adopted in March, represent a significant step towards bringing Turkey’s legal framework in line with ECtHR case-law. The Plan covers 14 main areas of human rights, including key areas like preventing violation of the right to life, preventing of ill-treatment, ensuring effective access to courts, ensuring a trial within reasonable time, freedom of expression and media, as well as freedom of assembly. Civil society was not involved in the drafting of the Action Plan. An overall fundamental rights action plan is still needed. The EU has called on Turkey to enhance its efforts to implement all the judgments of the European Court of Human Rights.

There are at least 15 ongoing individual criminal proceedings and as many ongoing investigations against human rights defenders— mostly under anti-terrorism legislation and the Law on Demonstrations and Marches. Some human rights defenders were released following the adoption of a law in February that reduced the maximum pre-trial detention period from ten to five years.

In a report published in November, the Council of Europe Human Rights Commissioner criticised the Law on Powers and Duties of the Police, noting that it allows the dispersal of any demonstration which has been deemed unlawful, without taking into account whether or not it is peaceful. The report stated that legislation imposes undue or disproportionate punishment for participation in unlawful demonstrations. The Commissioner called for more transparency and dialogue between police and organisers of demonstrations, and for the adoption of clear and binding rules on the proportionate use of force regarding demonstrations, in line with the relevant Committee for the Prevention of Torture recommendations and ECtHR case-law.

Two circulars issued in 2013 by the Ministry of the Interior, governing the use of tear gas and pepper spray by the police, were not implemented consistently. The ECtHR has previously criticized Turkey for heavy-handed intervention of law enforcement officers during demonstrations, including use of tear gas and pepper spray (Ataman v. Turkey group of cases).

Investigations into the authorities’ handling of the 2013 Gezi protests, which resulted in the death of seven protestors and a police officer, were hampered by a loss of evidence (in the Ali İsmail Korkmaz case), obstruction — including counter claims launched against protestors — and reportedly refusal to investigate claims of sexual harassment. During the ongoing court case on the deaths of protestors during the Gezi protests, one of the two police officers accused of causing the deaths remained on active duty. In total 329 investigations into disproportionate use of force during Gezi events were launched. Most of them are still pending. In September one police officer was sentenced to 7 years and 9 months in prison for shooting dead a protestor. The sentence was issued in the first instance and is pending an appeal. Independent, prompt and effective investigations into all allegations need to be ensured.

As regards freedom of assembly, the Constitution recognises the right of citizens to assemble and demonstrate without having to obtain any prior authorisation, but the legislation provides an ample margin of appreciation to the authorities and significantly restricts this freedom in practice. In March, amendments to the law extended the time periods within which demonstrations may be held and provided that the authorities would consult stakeholders on the venue and route for demonstrations and on monitoring and terminating demonstrations. The amendments also provided for the recording of all demonstrations, with the possibility of using these recordings to identify suspects and as criminal evidence.

Turkish legislation and its implementation concerning the right of assembly and regarding intervention by law enforcement officers are still to be brought in line with European standards. The peacefulness of a rally is not used as the basic criterion for the use of force to disperse participants; this is not in line with ECtHR case-law. Recurrent and structural problems in policing demonstrations are widely documented in the more than 40 ECtHR judgments against Turkey and the more than 100 pending applications. The June and July 2013 Ministry of the Interior circulars on the use of tear gas by riot police — a matter for which Turkey has been criticised by the ECtHR (Abdullah Yaşa and Others v. Turkey case) — and on courses of action in cases of social unrest were applied inconsistently.

The March 2014 Action Plan for the Prevention of Violations of the European Convention on

Human Rights provided that the Law on Demonstrations and Marches would be revised in line with ECtHR jurisprudence in the short term and also provided for training for security forces on ECtHR jurisprudence.

Kurdish Newroz celebrations took place peacefully. No action was taken in response to speeches made in Kurdish, signalling the further normalisation of the use of Kurdish in public. Lesbian, gay, bisexual, transgender and intersex (LGBTI) pride parades went ahead without disruption in major cities, with the right to assembly being respected.

However, on numerous occasions, demonstrations critical of government policies were subject to excessive use of force by the police. Force was used to break up numerous Kurdish related gatherings in the south-east, protests relating to Gezi events, as well demonstrations in Taksim Square in Istanbul. A workers’ rally following the Soma mine disaster was violently dispersed by the police.

Civil society organisations reported that they were prevented from holding meetings and rallies on several occasions, and that they were issued fines. A number of human rights defenders continued facing legal proceedings on charges of breaking the law and of making propaganda for terrorism as a result of their presence at demonstrations and meetings and following their attendance at press conferences. For the second consecutive year the 1 May march in Taksim Square was not allowed.

Concepts such as ‘general morality’, ‘Turkish family structure’, ‘national security’, and ‘public order’ were used widely and allowed too large a margin of discretion to authorities, hindering the respect in practice of freedom of association. Two LGBTI associations faced closure requests based on ‘general morality’. Court cases are pending regarding the closure of five associations dealing with human rights, and Kurdish issues in particular. Discriminatory practice was reported regarding the frequency, duration and scope of audits for rights-based associations.

One international NGO has been waiting six years for its registration, and another has an ongoing court case. A number of other international NGOs wishing to provide assistance to Syrian refugees in Turkey or in Syria found their work blocked for reasons unclear to them. In September 2013, a temporary registration status was introduced and applied to just three international NGOs.

Legislative and bureaucratic obstacles hindered the financial sustainability of civil society organisations. There were complaints of discrimination against associations applying for public benefit status and permission to raise funds. Receiving public benefit status (for associations) or tax-exempt status (for foundations) was complicated by the need for the decision to be taken by the Council of Ministers. The total number of organisations having such status amounted to less than 1 % of all civil society organisations. Value added tax (VAT) exemption procedures for rights-based NGOs remained burdensome. The collection of domestic and international funds was difficult and bureaucratic procedures were cumbersome. Organisations received permission to collect funds for only monthly or quarterly periods each time and the criteria to obtain this permission were not clear.

Cases based on terrorism legislation charges lodged against the confederations of trade unions

KESK (Confederation of Public Workers Unions) and DISK (Confederation of Progressive

Trade Unions) and associated trade unions continued. Court cases also continued against many trade unions and their representatives (see below — labour and trade union rights).

The minority representative on the Foundations Council in the Directorate General for Foundations resigned over the lack of a legal framework allowing religious foundations to elect their management boards. Although he later withdrew his resignation, the issue over which he resigned was not resolved.

Caveats such as ‘national security’ and ‘public health’ were used disproportionately to ban strikes. Court cases against trade unionists and police intervention in trade union activities continued. Use of excessive force persisted against routine trade union activities such as strikes, press announcements, protests and demonstrations that were deemed illegal, even if non-violent in nature (see above — freedom of association).