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Draft Third National ProgrammeFrom ReportsHRFTEvaluation Report of the Draft Third National Programme by the Human Rights Foundation of Turkey INTRODUCTIONHuman Rights Foundation of Turkey (HRFT) is a non-governmental and independent organisation, established by the Human Rights Association and 32 human rights defenders in 1990 in accordance with the Turkish Civil Code. The statute was published in the Official Gazette No.20741 and enforced on 30.12.1990. HRFT, being a non governmental organization, carries out its work in the light of all international covenants be them signed by the Republic of Turkey or not. The Headquarter being located in Ankara, the HRFT has representatives in İzmir, Adana and Diyarbakır. As a matter of principle, the HRFT does not accept donations from the governments, and those persons and institutions that violate human rights. The HRFT;
The HRFT, whose Raison D’être is defending, empowering and advancing human rights, has evaluated the “(draft) Turkish National Programme For The Adoption Of The EU Acquis” in accordance with this objective and made its opinion into a report. Chapters of Evaluation Looking at the text of the (draft) Third National Programme, we see that it is composed of four main chapters- introduction, political criteria, economic criteria, and the capacity to assume obligations for membership- and the emphasis is on the last two chapters. Human rights is given place only in 8 pages under the political criteria of the 410-page-draft programme, which gives a clue about the main problems in the approach to the issue. As far as we could observe in the prescribed time, although it is stated in the Introduction that “participative democracy, rule of law, human rights and fundamental freedoms are not only universal humanitarian values, but also are the most reliable bases of economic and political stability and development”[1], the whole text in general, and the last two chapters in particular does not reflect this statement. However the issues raised under the “economic criteria” and “capacity to assume obligations for membership” that seem separate and autonomous from human rights influence human rights directly or indirectly and constitute its basis. Although the term human rights and other related terms are widely given place under “Introduction” and “political criteria” chapters, how and when the planned amendments will be realized are not mentioned in the text. For instance, the immediate ratification of the Optional Protocol, which is given place in statement that “the ‘Optional Protocol to the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment’ will be ratified at an opportune moment” in the (draft) text of the Third National Programme (p. 7, para.10), has been insisted upon by the HRFT for many years. Certainly we are aware that the National Programmes reflect the “general tendencies” such as Accession Partnership Document, as a response to which the National Programmes are prepared. But, we believe that the public should be informed about when and how the modifications and legal amendments will be made. Moreover, it is noteworthy that under the chapter “capacity to assume obligations for membership” the dates of the prospective legal and administrative regulations are given as until 2013, yet there is no date about the issues on human rights. Since it is within the direct sphere of interest of the HRFT, we would like to emphasize that the following issues, which are not raised in the (draft) text of the Third National Programme, should be included in the mentioned text: the issue of preparing a new Constitution which has been kept on the agenda by wide sections for decades, Kurdish question on which we believe that concrete steps should be taken, and isolation in prisons, negative consequences of which we have been observing concretely in the applicants to our Foundation. We believe that the (draft) text of the Third National Programme, which is written with the perception that there is no problem of democracy and human rights in Turkey, would not serve democratisation of Turkey. MethodologyHRFT evaluated the (draft) text of the Third National Programme from the human rights perspective as much as the prescribed time allows, and found it convenient to embody its opinions with this report. In this report, the opinions in the draft text are listed under several titles; firstly these opinions are given as they exist in the (draft) text of the Third National Programme, afterwards the opinions and recommendations of the HRFT are given with indentation. In the last part of this report, we gave place to our recommendations as a whole, aiming to make it easy to read. Torture and Ill TreatmentIn the (draft) text of the Third National Programme it is stated that;
Evaluationa) these abstract and popular expressions in the (draft) Third National Programme do not reflect the reality of the country and is far from a comprehensive approach that can actually prevent torture and ill treatment. Because these expressions are products of an understanding that assumes that there is no torture in Turkey. However, the below listed data and facts indicates that “zero tolerance” policy has not played a preventive role yet, and that torture and ill treatment cases are ongoing with all seriousness. While, the number of ill treated/ tortured applicants to HRFT for treatment was 337 in 2006, this number rose to 452 in 2007. The corresponding number for the first 8 months of 2008 was 287, 165 of whom were subjected to torture and ill treatment in the same year. The number of applicants to HRFT who were tortured within the same year was 320 and 222 in 2007 and 2006 respectively. The response of the Minister of Justice Mehmet Ali Şahin to a question on 30 July 2008, raised by Democratic Society Party Batman Deputy Ayla Akat Ata, confirms the HRFT data. As a matter of fact, according to an evaluation of the investigations for the Article 94-which regulates ‘torture’-, Art. 95 –which regulates ‘heavy torture’- and Art. 256 –which regulates use of excessive force by the public officials who have the authority to use force on duty- of the Turkish Penal Code in 2006 and 2007, there have been 6.234 torture survivors, 471 of whom are children. Moreover, there is a serious annual increase in the number of victims: while the number of victims was 2895 in 2006, this rose to 3339 in 2007.
Again, according to 2007 data, soft tissue trauma, and other heavy trauma cases such as breaks, organ injuries and losses as a result of brutal and violent behaviours are physically observed among the HRFT applicants. Moreover several psychological disorders are detected among the applicants such as acute stress disorder and post traumatic stress disorder.
In 2005 the Turkish Penal Code (TPC) and Code of Criminal Procedure (CCP), in 2006 Anti Terror Law (ATL) were amended. In 2007 the Police Duties and Authorities Law (PDSL) was amended. Again in 2007, a regulation preventing the deputies from visiting the prisons was prepared (Regulation on Visiting the Sentenced and Detainees). It is significant that this regulation, that causes serious problems in its implementation, is not listed among the legislation to be re-amended in the (draft) Third National Programme (p.4). Especially with the Anti Terror Law (ATL), the rights of detainees are limited to a great extend, thus increasing the risk/ probability of torture. For instance many limitations are brought to the right of detained suspects to access a lawyer. Accordingly, a suspect detained for a terrorist crime allegation can enjoy the legal assistance of only one advocate and this assistance can be delayed up to 24 hours with the request of the prosecutor and decision of the judge. (ATL, Art. 10, Sub-para B, the amendment enforced on 29 June 2006). Again according to the ATL, the detained suspect may have to have a “controlled meeting” with his/ her advocate in the existence of an officer – as against the principle of confidentiality-, with the decision of a judge, and the documents of the advocate may be confiscated and investigated. The amendment of the Police Duties and Authorities Law increased the authority of the police and increased their legal protection. This caused a serious increase in the torture and ill treatment cases. As a matter of fact, the increase reflected in the 2007 data of the above mentioned response of the Ministry of Justice is an indicator of this fact. Despite all of these, the security forces complain that detention periods are too short and that the legislation is weakening their authority; thus they repeatedly claim that the relatively positive legislation enacted between 1999-2005 should be revised and that the security forces should be granted more authority. The statement of the İstanbul Chief of Police, Celalettin Cerrah that “detention period is 42 days in UK. If we had more time, we could have worked more”. The statement that took place on the media on 17 June 2008 is a proof of this. In such as case, it should be thought upon how convincing and realistic these expressions in the (draft) Third National Programme are: “Circulars are issued in order to make the public officials more conscious, in the frame of preventing torture” or “(…) we will continue to implement the measures approved in the frame of the ‘zero tolerance’ to torture and ill treatment policy embracing all public officials (…)”.
The samples of impunity are experienced in practice as follows:
g) As Manfred Nowak, the UN Special Rapporteur on torture states; “transparency is the key tool in combating torture”. The ‘Optional Protocol to the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment’ aims at furnishing transparency by opening those detention places to monitoring, which are isolated and far from monitoring. The ‘Protocol’ is very important in combating torture and it was signed by Turkey in 2005. In 2006, necessary procedure was completed and the ‘Protocol’ came into force at the international sphere. It is incomprehensible that the ‘Protocol’ was signed but not ratified, notwithstanding the “zero tolerance” policy. The Optional Protocol should be ratified immediately in order to bring the torture allegations to an end, and the independent and neutral monitoring mechanisms, qualifications of which are described in the Protocol, should be established.
Today, torture remains to be a serious issue in Turkey, and it has been gaining more weight recently. Today, anybody in Turkey, of any age, sex, occupation, social status, political view and belief, whether has committed a crime or not, still has the risk of being tortured anytime and anywhere. As the official data shows, there is a striking increase in the number of victims and perpetrators of torture cases. The sociological meaning of this increase is that torture has become collective. Because if torturing and being tortured, such experiences that degrade one’s dignity and deteriorate the health of a society as a whole, is into numerous people’s life, then this results in normalisation of torture. This way, torture ceases to be an anti-social act, and becomes part of social life, thus becomes legitimate. Indeed, according to a public survey conducted by the University of Maryland, and announced on 24 June 2008, there is a striking increase in the permission/ condone to torturing “terrorists” in many part of the world. The rise of this percentage from 24% to 51% in a few years time indicates the scope of this legitimisation in Turkey, which means that the “zero tolerance” policy is nothing more than a hollow slogan. Briefly, it is not sufficient only to conclude international conventions and to enact laws and circulars in domestic law. In order to properly implement the content of the laws and conventions at issue, it is necessary to take many other legal, juridical, administrative, educational and cultural measures altogether and comprehensively. For instance, one of the most positive and hopeful expressions in the (draft) Third National Programme is the Istanbul Protocol training programme initiated by the Ministries of Justice and Health, aiming at training 4000 medical doctors, 1000 prosecutors and 500 judges. Yet, it is obvious that, if necessary measures are not taken in other fields as a whole, the training will not be as beneficial as it is expected. The recommendations of HRFT in the realm of torture and ill treatment: In addition to the Human Rights Foundation of Turkey, many human rights organisations, mainly the Human Rights Association and the Amnesty International, recommend to realize the following tasks immediately, without the any of the listed items being in priority to one another, in order to prevent torture and realize the “zero tolerance” policy:
Freedom of ExpressionIn the (draft) text of the Third National Programme it is stated that;
EvaluationDuring the interval between the Second and Third National Programmes, the only legal amendment to verify partly the expression of “The Freedoms of Thought, Expression and of the Press are enlarged” is the amendment of the Art.301 Turkish Penal Code on 30 April 2008. The old and new Art. 301 will neither be compared here nor the problems occurred/ may occur during its implementation will be discussed upon. The Human Rights Foundation of Turkey has shared its opinion on the Art 301 and Freedoms of Thought and Expression in general with the public on all occasions and has emphasized the “need to abolish the Art. 301 as a first step in creating a fundamental change in the dominant mentalities which restrict the freedoms”. We are concerned about reducing the problem to Art. 301. As the Human Rights Foundation of Turkey, we have been emphasizing that in Turkey there are “problems with Freedoms of Thought and Expression”, which is not limited to Art. 301, but is more extensive and deeper. In this country, which aims at becoming an EU member and a democratic society, the Freedoms of Thought and Expression are limited and there is a big cost of enjoying these freedoms, despite the entire make up on the legislation. As a matter of fact, the Minister of Justice, Cemil Çiçek made the following comment on the discussions on the Art 301 of the Turkish Penal Code on 1 February 2007 published on a newspaper. “Some say that ‘this article should be abolished completely’. Articles 141, 142, 163 were abolished in the past. Did the crimes regarding these articles disappear when those articles were abolished? What is more important, if the Art. 301 is abolished, would not the judge find another article and punish the alleged for another article? If the Art. 301 abolished, then he/ she will use Art. 216 (related to inciting people to hatred and hostility and insulting). What is important is whether the crime under this article is committed or not.” Only in the Turkish Penal Code, there are at least 15 articles which can be used interchangeably and which may constitute obstacles in front of the Freedoms of Thought and Expression. These are Articles 84., 125., 132., 133., 134., 215., 216., 218., 285., 286., 288., 299., 301., 305. and 318 of the Turkish Penal Code. In addition to these, some other laws also restrict Freedoms of Thought and Expression such as: Anti Terror Law, Law on Protecting Ataturk, Press Law, Law on Radio and Television Higher Council, Law on Political Parties, In fact, in addition to articles one by one, the whole legislation is restrictive of Freedoms of Thought and Expression. For instance, many disciplinary regulations, regulating the internal functioning of the institutions, are restrictive of Freedoms of Thought and Expression. This situation is the most obvious in the regulations abolishing the academic freedoms. On the other hand, adding the institutional functioning of the judiciary, mentality and internal structure to the stalemate of the current legal system about independence of the judiciary, the exercise of jurisdiction itself is an obstacle in front of the Freedoms of Thought and Expression. Thus, in the page 8 of the (draft) text of the Third National Programme, for “protecting the enjoyment of Freedom of Expression, including the Freedom of Press, in compliance with the with the provisions of the “European Convention of Human Rights’” (ECHR) and the judgments of “European Court of Human Rights”(ECtHR)” as you expressed, what needs to be done today is to create a fundamental change in the dominant mentality which restrict freedoms. For this, the habits, institutional functions and even the massive legislation need to be changed. To see the gravity of the problem, it is enough to have a look at the “Human Rights Report 2007” prepared by the HRFT Documentation Centre. The data compiled by our Documentation Centre using the pressed and visual media on the freedoms of thought and expression are as follows: The web sites banned completely or partly : 11 Recommendations of HRFT on Freedom of Expression1. If the political will is sincere about the “participative democracy” as frequently stressed in the (draft) text of the Third National Programme, the legal arrangements hindering the above said Freedoms of Thought and Expression should be evaluated as a whole and rearranged from another perspective, widening the freedoms. 2. Insults to legal personalities should not be deleted from the penal law. 3. Necessary steps should be taken for legal independence. 4. The authoritarian mentality which is prevalent in the society should be aimed to be transformed in the long run. Freedom of Religion and ConscienceIn the (draft) text of the Third National Programme it is stated that;
The statement in the Second National Programme “(…) that realizes laicism, freedom of religion and conscience at the international standards” is in extenso given place in the text of the Third National Programme, which can be read as “that realizes the freedom of religion and conscience only of the Sunni people”. There can be a short term regulation on this issue, which is not given pace in the Draft. As it is known, the European Court of Human Rights convicted Turkey on 10 October 2007 in the case of Eylem Zengin-Turkey, case no: 1448/ 04 for violating right to education (ECHR art.2, para1) by making the course of “Religion Culture and Ethics” at schools. Turkey should immediately harmonize its education system and curriculum with the ECHR, taking into consideration this judgment of ECtHR. The problem in the field of education is not only the “Religion Culture and Ethics” being a must course and its content covering only one religious sect. A project conducted by the Turkish History Foundation, contributed by the HRFT, reviewed the school books in terms of human rights. The study put the mentality behind concretely. According to the results of the said study, the existing school books, therefore the curriculum in use; is dogmatic, defines universal values with reference to ethnic Turkishness , is essentialist, sexist, discriminative, violates the right to peace by glorifying death, and emphasizing inescapability of war, blesses violence, has a permanent perception of threat from abstract internal and external enemies, produces a culture of obedience based upon glorifying and blessing authority, highlights duties and responsibilities more than rights and freedoms, makes restriction of freedoms as if its ordinary, makes militarism as if its usual, with the values attributed to the Turkish Armed Forces and military service, produces xenophobia, presents difference not as a richness but as a problem, does not orient students to research but tries to convince them. The recommendations of HRFT on Freedom of Religion and Conscience1. The Department of Religious Affairs should be abolished as a requirement of a secular regime. 2. The course on Religion Culture and Ethics should cease to be a must course. 3. “Cemevi”should be seen as in the same status with other worship places, and the difficulties faced during opening of “Cemevi” should be eliminated. 4. As a requirement of the statement of “strengthening the efforts to eliminate the matters in the school books and curriculum that cause discrimination” (p. 9) under the “Policies against Discrimination” title of “The Accession Partnership Document 2007” the expressions, in which authoritarian, nationalist, Sunni perspective is dominant, that are sexist and that promote discrimination, should be removed. Freedom of Assembly and AssociationIn the (draft) text of the Third National Programme it is stated that;
The problems related with Freedom of Association have increasingly accrued in the recent years. Even the attitude of the financial and public institutions to the Democratic Society Party, which is a political party with a Parliamentary group, is sufficient to indicate this situation. The existence of the said party is ignored at the state level and the Part is tried at the Constitutional Court for closure. The attacks to its members and provincial and sub-provincial branches are continuous. In the page 242 of the (draft) text of the Third National Programme, it is stated that the Law on Turkish Judges and Prosecutors Union will be enacted in the 4th quarter of 2008. This law is in the scope of “meeting mutual need of judges and prosecutors, facilitating their vocational activities and ensuring development of this vocation in accordance with the general interests.” The law anticipates termination of (YARSAV)- Judges and Prosecutors Union, which was established and which functions in accordance with the current legislation of the Turkish Republic. Thus, the (draft) Third National Programme is a forerunner of aggravation, not of improvement. In 2008, many associations were convicted, as every year. On 29 May 2008, the İstanbul Beyoğlu 3rd Court of First Instance decided for the closure of Lambdaİstanbul Lesbian, Gay, Bisexual, Travesti, Transsexuel (LGBTT) Solidarity Association in accordance with the Art. 17 of the Law on Associations, No: 5253 and Art. 60/ 2 of the Turkish Civil Code, because the name of the Association is not in Turkish and there is no amendment in this direction and that an association against morals can not be established. The Freedoms of Assembly and Demonstration, which are indispensable components of Freedom of Association, are also problematic, that come out time to time. This came out during the Labour Day in Istanbul and Newroz celebrations in 2008, lastly. During Newroz, thousands of people were made face to face with security forces, many of them were beaten at the streets, and unfortunately four citizens, namely Zeki Erik, İkbal Yaşar, Ramazan Dal, Fahrettin Şedal, lost their lives. On the Labour Day in Istanbul, the approach of the political power was to blockade the whole metropolis. The security forces who were granted extraordinary authority after the Police Duties and Authorities Law, pressed pepper gas and pressured water to the headquarter of the Federation of Progressive Labour Unions (DISK) and intervened with truncheons by early in the morning. Workers, public servants, advocates were beaten, some press members’ arms were broken, and everyone who were around there somehow got their share. Briefly, on the Labour Day, torture and ill treatment was on the streets. The recommendations of HRFT on Freedom of Assembly and Association1. Necessary measures should be taken in order to prevent security forces from using excessive power. For acceptance of ethical code and to ensure better accountability, an independent and effective complaint mechanism covering all the security forces should be established. 2. The Law on Associations and the Law No 2911 on Assembly and Demonstrations should be amended so as not to allow arbitrary practices. 3. The legislation on the political parties should be amended towards widening and strengthening Freedom of Association. Combating DiscriminationThe Kurdish question is a pile of problems, that affect the economical, social, cultural lives of the citizens of the Turkish Republic directly, and it can not be discussed only under the sub-title “Combating with Discrimination”. As the titles related with the said question are given indirectly under the title “Combating with Discrimination” of the Accession Partnership Document 2007, the HRFT finds it convenient to lean over the issue as much as it is discussed in the mentioned texts. In the (draft) text of the Third National Programme, it is observed that there is not a comprehensive approach to the Kurdish question. In the Draft, there is neither the statement “situation in the East and Southeast”, nor the word Kurd. However the Turkish Accession Partnership Document 2007, to which the Draft is written as a response, states that “Develop a comprehensive approach to reduce regional disparities, and in particular to improving the situation in Southeast Turkey, with a view to enhancing economic, social and cultural opportunities for all Turkish citizens, including those of Kurdish origin.” (p 9) and it recommends “abolishing the village guard system in the Southeast”. However it seems in the “Reducing Regional Disparities” sub-title (p.10) in the Draft text that, village guard system, which is one of the most important obstacles before the “Return to Villages and Rehabilitation Project”, is insisted upon. Certainly a comprehensive programme needs to be developed for democratic and peaceful solution of the Kurdish question. The Right to Education and Publication in Different LanguagesIn the (draft) text of the Third National Programme it is stated that;
The fourth sentence of the Art. 4 of the Law No: 3984 on Establishment and Broadcasts of Radio and TV, titled “broadcasting principles” was amended in accordance with the Art.14 of the Law No: 4928, which came into force on 15 July 2003, to become “Moreover, broadcasts can be made in different languages and dialects traditionally used by the Turkish citizens in their daily life”. Together with this, the Regulation No: 25357, dated 25 January 2004, about broadcasting in different languages, namely “Regulation on the radio and television broadcasts in different languages and dialects traditionally used by the Turkish citizens in their daily life” subjugates the said broadcasts to the permission of the Radio and Television Supreme Council and brings many restrictions (RTÜK)by Art.5. The restrictions are: “broadcasts of news, music and presentation of the traditional culture can only be made for adults”; “the broadcasts for teaching these languages are not allowed”; “Radio and television broadcasting institutions with public or private licences can broadcast in other languages and dialects, including the repeating programmes; radio companies 5 hours a week, not exceeding 60 minutes a day, television companies 4 hours a week, not exceeding 45 minutes a day. “Including the repeating programmes in these languages and dialects, Television companies are entitled to subtitle the broadcasts exactly the same as the original in terms of duration and content and must broadcast it dubbed in Turkish right after; radio broadcasting companies are entitled to broadcast the Turkish translation, following the programmes.” This example shows that there are obstacles before broadcasting in different languages and dialects, which are difficult to overcome, and that education in the said languages by the modern media such as radio and television are forbidden. Beyond this, there remain serious obstacles in the use of “different languages and dialects traditionally used by the Turkish citizens in their daily life”. Relevant articles of the "Law on the Adoption and Implementation of the Turkish Alphabet" No. 1353, the Law on Political Parties, and the Law on Elections constitute obstacles before the use of languages other than Turkish. A recent example was on the Radikal newspaper dated 19 August 2008: “Diyarbakir Governorship forbade Kayapınar Municipality to give Kurdish names to the new parks. The letter, signed by the Governor Hüseyin Avni Mutlu and sent to the Municipality on 10 June 2008, stated that the other names given by the Municipal Council were not approved for “not being compatible with Art. 24 of the Regulation on Addresses and Numbering”. In the Regulation it is stated that “they can not be fixed as against the fundamental principles of the Constitution, the existing legislation, general morals and as potentially discriminative and separatist”. However the one of the forbidden names, “Berfin” (which means snow white, snowdrop, snow flake) was given to a park in 2005 by the Yenişehir Municipality and it was approved by the Diyarbakir Governorship. In the (draft) Third National Programme, there is a dominant understanding that finds it sufficient for the people to learn their languages with their own demand. Additionally, there is no concrete objective to eliminate the obstacles before the right to broadcast of the private broadcasting companies. Ottawa ConventionIn the (draft) text of the Third National Programme it is stated that;
This expression, given under the “Reducing Regional Disparities” title is hopeful, yet it is not clear how it will contribute to reducing regional disparities alone. Opening those fields cleaned from landmines for agriculture may not function for reducing regional disparities alone. Moreover Turkey is one of the three countries which did not fulfil its obligation to remove anti-personnel landmines in its stocks within the prescribed period -1 March 2008 for Turkey- in accordance with the Art. 4 of Ottawa Convention to which Turkey became a party on 1 March 2004. The other countries are Belarus and Greece. According to the report prepared by Turkey, there exists 2.866.818 anti-personnel landmines in the stocks of Turkey, and it is not stated when they would be annihilated.[2] It would be good if this is clarified in the Third National Programme. The recommendations of HRFT on Combating with Discrimination1. A comprehensive approach should be brought into the Kurdish Question and this should be reflected on the text. 2. Village Guard system should be abolished. 3. Access to Radio and TV broadcasts in other languages than Turkish should be improved, and remaining legal obstacles should be removing. 4. Necessary measures should be taken for promoting foreign languages. Concrete objectives and programmes regarding education of and in mother language should be given place. 5. As a requirement of the Ottawa Convention, annihilation of the stocked landmines should be scheduled and the deadline for annihilation of the buried landmines, which is 2014 should not be waited for. Human Rights BoardsIn the (draft) text of the Third National Programme it is stated that;
EvaluationIt seems that the role of the Human Rights Advisory Board to serve a dialogue between the state and civil society given in the Second National Programme is assumed by the provincial and sub-provincial human rights boards in the (draft) text of the Third National Programme. In the Second National Programme dated 2003 under the “political criteria” chapter, it is stated that “Human Rights Advisory Board is activated as a strong dialogue platform between the state and civil society in the realm of human rights”. However, according to the Art. 6[3] of the “Regulation on the Establishment, Duties and Working Principles of Provincial and Sub-provincial Human Rights Boards” No. 25298, enforced on 23 November 2003, this board should meet three times a year. Yet it has not been meeting since February 2005. It needs to find out who is responsible for not meeting of the Board, because is committing a crime according to this legal regulation. As it can be explicitly understood from its name, the Human Rights Advisory Board was established as a consultancy unit. Despite this, the only issue that the government requested opinion from the Board was evaluation of the EU Harmonization Report on 08.12.2003 in the frame of human rights and political criteria. There has been no single consultation to the board for a bill during its short term of activities, before the Board was abrogated against the law. Instead of the statement in the Para.6 of the sixth page of the Turkish Accession Partnership Document dated 26 February 2008, that “establishment of an independent national human rights institute with sufficient resources in accordance with the relevant UN principles, following the lawsuits on human rights with statistical data”, the (draft) text of the Third National Programme (p.5, para.2) states that “Restructuring of the Human Rights Presidency of the Republic of Turkey in the frame of the Paris Principles will be concluded.” Approved by the UN Human Rights Commission on 3 March 1992 with Resolution No 1992/54 and by the UN General Assembly on 20 December 1993 with Resolution No 48/134, the “Principles On The Status And Functioning Of National Institutions For Protection And Promotion Of Human Rights”, also known as the “Paris Principles”, aim at ensuring the autonomy of national institutions established for working on human rights and for combating discrimination from other governmental institutions and the political power. In this frame, sitting of a national mechanism to be established on an constitutional basis should ensure its personnel’s and financial independence, the job security of its members, clearly identify the appointment procedures, membership criteria and member composition, enjoy the unlimited authority to conduct visits without prior notice, have accountability through reporting and enjoy the authority to make recommendations. Otherwise the mechanism to be established will become similar to the existing ones, and will in no way carry the quality of the envisaged mechanism. What is more, it will not be reliable. Restructuring of the Human Rights Presidency of the Republic of Turkey, under which are the provincial and sub-provincial human rights boards, in accordance with the Paris Principles, as stated in the (draft) text of the Third National Programme is not possible. Thus, neither the National Institution given in the accession partnership document can be compared to the restructuring initiatives of the Human Rights presidency under the Prime Ministry, nor the latter can substitute the former. Moreover, this initiative may cause worrying developments with regards to human rights. The said institution defines itself as: “the most extensive regulation within the state organisation regarding institutionalisation on human rights was realized with the Law No. 4643 dated 12.04.2001, which amends the Law No. 3056. With the said law, a ‘Human Rights Presidency’, as a main service unit, was established under the central organisation of the Prime Ministry”[4]. Moreover, the Presidency refers to the “military” metaphor[5] when defining itself, which connotes discipline and obedience. The Ankara Public Prosecutor filed a lawsuit against the President of the Human Rights Advisory Board Prof. Dr. İbrahim Kaboğlu and President of the sub-commission Prof. Dr. Baskın Oran for 5 years imprisonment for “inciting hatred and hostility” and “insulting the judiciary bodies explicitly” with their thoughts in their Minorities and Cultural Rights Report. The case, which ended with acquittal of İbrahim Kaboğlu and Baskın Oran, should be considered in this frame. Together with this, the fact that, human rights NGOs do not participate in the provincial and sub-provincial human rights boards to the required extent is stated in the Human Rights Presidency, 2007 Human Rights Report.[6] Thus, the dialogue between the state and civil society, which is claimed to have strengthened, may actually have not occurred at all, or have remained very limited. A publication of the HRFT; A Consensus In Prevention Of Torture[7] written by Kerem Altıparmak and Hülya Üçpınar, about the national institutions, states the following guiding findings and approaches between the pages 80-83. Like in the whole world, there exist many human rights units within the public administration in Turkey for a long time. In Turkey, in addition to a ministry on human rights, there are several head of departments, divisions, etc. within the administrative hierarchy. Currently, the Ministry of Justice, Ministry of Interior, Security General Directorate, Gendarmerie General Commandership, Ministry of Foreign Affairs and National Security Council general Secretariat have various administrative units such as Vice –Directorate General, head of departments, branches, divisions. However none of these units were designed to overcome the contradiction that the violator is at the same time the protector. Thus what is meant by the national human rights institutions is not any administrative unit, but human rights institutions organized to overcome the said contradiction. In other words, they are organisation models, independent of administrative hierarchy and that can monitor it from outside. It is controversial; to what extent this objective can be realized. Yet it is possible to say that such an objective has more capacity in overcoming administration paradigm, than an administrative unit within the hierarchy. It is for this reason that, Paris Principles have made national mechanisms an international issue in terms of the general qualifications of the organisation of human rights. Nonetheless, these documents do not present the golden rule of the human rights organisations. There is not concrete description of how human rights can be protected the best via administrative ways that can be implemented in every country. As a matter of fact, Vienna Declaration and Action Plan draw attention to the necessity of taking into consideration the Paris Principles and accept “the right of every state to choose the structure which is the most convenient to its needs.” This statement does not mean that one can make a decision as against the aims of protection and promotion of human rights. On the contrary, they put forward the need to take measures that will empower and develop the existing guarantees. What is mentioned here should be understood not as an unlimited discretionary power, but as increasing the means in proportion to the needs, and eliminating the obstacles before the objectives. The Paris Principles, which were approved by the UN General Assembly in 1993 in designation of universal standards of these institutions, should be referred to in the establishment of national institutions. Together with this, none of these texts can replace a political will, which aims at ensuring an effective control in the realm of human rights. National mechanisms established in Turkey without such a will, are far from fulfilling the requirements of international criteria, as explained above, and they have not made any contribution to promotion of human rights in Turkey. Moreover, as in the case of the Human Rights Advisory Board, they engender the human rights defenders becoming a target. The organisation work carried out so far in Turkey have been done in the name of proving that there has been progress in the realm of human rights, in the context of EU relations. Within the process, the human rights organisations and experts were not listened; the alternatives for solution were not discussed upon. Additionally, there has not been followed a different method in the initiatives for changing the existing structure and establishing a national institution. This endeavour was stopped only thanks to the effective opposition of the human rights organisations. At the reached point, whether the government will follow the same policy or not carries a much more critical meaning. The Accession Partnership document published by the Council of the European Union on 18 February 2008, lists the short term priorities to be realized in 1-2 years period, among which is also the establishment of an independent National Human Rights Institution, for which sufficient financial resources are provided in accordance with the UN Principles. What is more, the same document requests implementation of the measures taken in the frame of zero tolerance to torture policy in the short term. In this frame, it is evident that Turkey, which has signed the Optional Protocol, would not delay its ratification much, to complete the process. On the basis of all these developments, it is not difficult to guess that national institutions will be established very soon. However, there is no clue that the above mentioned will which was not existent in the previous organisation process, has awaken in the new process. In other words, the government has not started a transparent and open discussion process yet, and did not show the will of including different actors of the human rights community. Probably, it will finish its own preparation and expect the others to support it. It would be too much optimistic to expect that a national structure in compliance with the sprit of the Paris Principles will emerge out of this process. The magical formula for the national mechanisms is not the institution itself, but the process. A realistic and healthy national mechanism can only be the product of a long-lasting and well attended study. The recommendations of HRFT on Human Rights Boards1. The Human Rights Advisory Board should be made functioning in accordance with its objective immediately. 2. The Boards should be redesigned with a wide participation, in order to ensure the autonomy of the National Human Rights Boards in accordance with the Paris Principles. 3. As stated in the Prevention of Torture part, the Optional Protocol to the UN Convention against Torture should be ratified, and establishment of an independent body, which will conduct visits to all the detention places, where those deprived of their liberty are kept, without prior notice, should be considered in this frame. The Status of the International Criminal CourtIn the (draft) text of the Third National Programme it is stated that;
EvaluationIt is better to give place to the International Criminal Court under the Chapter 31 “Foreign, security and defence policy” of the (draft) Third National Programme, than not to mention it at all. The ICC was established on 17 July 1998 with the Roma Status of the International Criminal Court, which defined how the ICC would work and what the states should do for cooperation with the Court. The ICC started to function on 11 April 2002. As of 15 July 2008, the Roma Status was signed by 139 states and ratified by 107 states. The ICC is a court, established with the aim of creating a mechanism so as not to leave any perpetrators of genocides, crimes against humanity and war crimes unpunished. Its success depends on the extent of the support of all states in the world. Roma Status is an important first step of a global order where any understanding and initiative, which regards security as its own monopoly, tries to eliminate the responsibilities emerging from its acts with its economical and military power, thus constitutes a threat against humanity, will not remain unpunished. Through this mechanism, the party states ensure that they will effectively punish those who commit the said crimes within their territory, and otherwise the ICC will take over in order to punish such crimes. Therefore, these states will strengthen their own legal systems against those crimes. Being a party to the Rome Status is an important step towards accepting the rule of law at the universal level, beyond the borders. All the party states that attain this title accept that they will not commit genocide, and crimes against humanity, that they will avoid war crimes and will contribute realisation of peace and well being within their borders and at the universal level. The recommendations of HRFT on the Status of the International Criminal Court Turkey should become a party to the Roma Status immediately. CONCLUSIONTHE RECOMMENDATIONS OF THE HUMAN RIGHTS FOUNDATION OF TURKEYThe existing Constitution, which is a product of the 1982 military coup, should be revised with a comprehensive perspective and with as large a participation as possible. And a new constitution should be prepared, that;
The recommendations of HRFT on torture and ill treatmentThe following tasks should be followed immediately, without the any of the listed items being in priority to one another, in order to prevent torture and realize the “zero tolerance” policy:
Recommendations of HRFT on Freedom of Expression
Recommendations of HRFT on Freedom of Religion and Conscience
Recommendations of HRFT on Freedom of Assembly and Association
Recommendations of HRFT on Combating Discrimination
Recommendations of HRFT on Human Rights Boards
Recommendations of HRFT on the Status of the International Criminal CourtTurkey should become a party to the Roma Status immediately. Footnotes
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