EU Commission: Progress Report 2008
COMMISSION OF THE EUROPEAN COMMUNITIES
Brussels, 05.11.2008
SEC(2008) 2699 final
COMMISSION STAFF WORKING DOCUMENT[1]
TURKEY 2008 PROGRESS REPORT
The DTFDemocratic Turkey Forum presents some key quotes from the report:
page 9/10: Judicial system
... Concerns remain about the impartiality of the judiciary. On some occasions senior members of the judiciary made public political comments which may compromise their impartiality in future cases. As regards independence, there has been no progress on the composition of the High Council of Judges and Prosecutors[2] or on the reporting lines of judicial inspectors[3] (See also Chapter 23 – Judiciary and fundamental rights).
page 11: 2.2. Human rights and the protection of minorities
Observance of international human rights law
page 12: Turkey abided by the final judgment of the ECtHR in the majority of cases. However, a considerable number of ECtHR judgments are awaiting enforcement by Turkey. This is sometimes because general legislative measures are required. For instance, the legal provision preventing the re-opening of domestic proceedings in certain circumstances following a judgment by the ECtHR remains in force. The Committee of Ministers of the Council of Europe indicated that continuation of this situation amounts to a manifest breach of Turkey's obligation under the ECHR. Furthermore, Turkey has not adopted legal measures to prevent repetitive prosecution and conviction of conscientious objectors. Other cases pending before the Committee of Ministers awaiting adoption of the necessary implementing measures relate to control of the activities of security forces, effective remedies against abuses and restrictions on freedom of expression.
page 13: Human rights defenders have faced criminal proceedings because of their work. Some faced
threats from extremist groups, and were subsequently placed under police protection.
Overall, the institutions for the promotion and enforcement of human rights lack independence and resources. The introduction of an Ombudsman is overdue and is of key importance to prevent tensions in society. Furthermore, threats to personal safety and occasional criminal proceedings have an adverse effect on the work of human rights defenders.
page 14: Civil and political rights
Contents |
Torture
In comparison of the previous report 2007 and the current report 2008 the following was said on torture and ill-treatment (highlighting by the DTF).
| 2008 Report | 2007 Report |
| The rights of detainees are protected by a comprehensive set of safeguards which serve to prevent cases of torture and ill-treatment in custody. This includes medical examinations of detainees in police custody. Efforts are ongoing to ensure compliance with these provisions. They include training for judges, prosecutors and forensic experts with a view to better implementation of the Istanbul Protocol, which provides guidance on effective investigation and documentation of torture and ill-treatment cases. | The legislative safeguards introduced by the zero tolerance policy on torture continue to have positive effects. The downward trend in the number of reported cases of torture and ill-treatment was confirmed. The reforms regarding access to lawyers have shown positive results (See access to justice). Turkey pursued its efforts to strengthen the system for the medical examination of alleged cases of abuse. The number of forensic medicine centres in Turkey has been increased, and the Council for Forensic Medicine started a project to strengthen the implementation of the Istanbul Protocol.[4] |
| However, the number of applications to NGOs in relation to cases of torture and ill-treatment has increased, in particular outside official places of detention, notably during apprehension, transfer, or in the open with no detention registered. Furthermore, there are cases where the legal safeguards in place failed to prevent or stop the occurrence of torture and ill-treatment while in custody or in prison. These developments are a matter of concern. | However, cases of torture and ill-treatment are still being reported, especially during arrest and outside detention centres. There is no independent monitoring of places of detention by independent national bodies, pending the adoption of the Optional Protocol to the UN Convention against Torture. |
Later in the 2008 Progress Report formulations of the 2007 Progress Report are found again:
page 69:
As regards prohibition of torture and inhuman or degrading treatment or punishment, the downward trend in allegations of torture and ill-treatment in the anti-terror departments of police stations continued. The legal safeguards introduced by the government's zero tolerance policy on torture are having a positive effect. However, the number of appeals to NGOs concerning cases of torture and ill-treatment, in particular outside official places of detention, has increased. Pending ratification of the Optional Protocol to the UN Convention against torture, there is no independent national mechanism in place for monitoring places of detention. Furthermore, more efforts are needed to fight impunity.
Basically unchanged remained the following remarks (page 13)
- The use of statements obtained in the absence of legal counsel or not confirmed before a judge is prohibited by the Criminal Procedure Code. However, the Court of Cassation ruled that the ban on use of such statements does not apply retroactively. There have been cases where lower courts have not removed such evidence from the case file, although allegations of ill-treatment were made by the defendant.
- Medical reports established upon admission to and exit from police custody are sometimes inaccurate due to lack of resources or expertise. Furthermore, for their own security, the legal framework allows doctors to request the presence of a law enforcement officer during medical examinations of detainees. However, in some reported cases, law enforcement officers were present during examinations without the request of the doctor in charge.
- Victims of torture and ill-treatment rely essentially on rehabilitation services provided by NGOs. This is partly due to the lack or inaccessibility of State-sponsored services for victims of torture and ill-treatment.
Impunity
This section (page 14) was expanded:
As concerns impunity, the Minister of Justice expressed a public apology for a recent case of death following torture in detention. However, impunity for human rights violations is a cause for concern. There is a lack of prompt, impartial and independent investigation into allegations of human rights violations by members of security forces. None of the 70 complaints submitted to the prosecutor in relation to the Diyarbakir incidents in March 2006 have been closed so far. Furthermore, judicial proceedings into allegations of torture and ill-treatment are often delayed by the lack of efficient trial procedures or abuse of such procedures.
Overall, there have been limited efforts as regards the prevention of torture and ill-treatment. A comprehensive set of safeguards is in place. However, allegations of torture and ill-treatment during detention or outside official places of detention are a cause for concern. The efforts to prevent torture and ill-treatment need to be enhanced. The ratification of the OPCAT and the fight against impunity are key in this context.
Prison conditions
This section (pages 14/15) became a little more detailed but similar in tone
As regards prison conditions, the physical infrastructure of prisons continued to improve. Twelve new prisons have been completed and a further 22 new prisons are under construction.
Staff training continued to improve...
Restrictions on prisoners' correspondence and inadequate health/psychiatric resources remain a problem. The total number of prisoners is 95,551 for a total prison capacity of 90,558. Prisons in big cities are especially faced with the problem of overcrowding. Implementation of the circular on high-security F-type prisons has failed to remedy the shortcomings as regards communal activities for inmates...
Provisions allowing solitary confinement of persons sentenced to aggravated life imprisonment remain in force. In its 2006 report on Turkey, the Council of Europe Committee for the Prevention of Torture indicated that such rules need to be applied for as short a time as possible and must be based on an individual risk assessment of the prisoner concerned. Cases of ill-treatment by prison staff have been reported, but few lawsuits have been launched to probe these allegations.
Overall, good progress was made on improving infrastructures and on training of staff. However, shortcomings as regards restrictions on prisoners' conditions, on solitary confinement and on occasional ill-treatment remain to be addressed.
Freedom of expression
Open debate continues in the Turkish media on a wide range of issues, including those perceived as sensitive by Turkish society. In April, the Turkish parliament adopted amendments to Article 301 of the Turkish Criminal Code with the intention of strengthening the safeguards for freedom of expression in Turkey. The amendments changed the wording of the article[5], lowered the upper limit of the penalty and abolished the higher penalty for insults in a foreign country. Furthermore, the amendments introduce a requirement for permission to be obtained from the Justice Minister in order to launch a criminal investigation. A circular on implementation of the amended article was issued on 9 May 2008[6].
Following the adoption of the amendments to Article 301, Turkish courts had forwarded, by September, 257 cases to the Minister of Justice for prior authorisation. This requirement concerns cases at the investigation stage or for which judicial proceedings have started. By September, the Minister had reviewed 163 cases and refused to grant permission to proceed in 126 cases.
However, the wording of Article 301 remains largely the same and the prior authorisation requirement opens up the possibility that the article will become subject to political consideration. So far, the Minister of Justice authorised the criminal investigations to continue in 37 cases...
Other legal provisions that restrict freedom of expression remain a cause of concern. For example, Articles 215, 216 and 217 of the Turkish Criminal Code, that criminalise offences against public order, and the Anti-Terror Law have been applied to prosecute and convict those expressing non-violent opinions on Kurdish issues... Moreover, press articles on ongoing judicial proceedings have led to prosecutions and convictions under Article 288 (attempt to influence a fair trial) of the Turkish Criminal Code or under the Press Law. Similarly, public statements on the right to conscientious objection are prosecuted under Article 318 (discouraging the people from military service) of the Turkish Criminal Code.
Overall, with the amendment of Article 301 there has been some progress in the efforts to strengthen the safeguards for freedom of expression, which is a priority of the Accession Partnership. However, only a consistent track record of implementation will show whether or not the revised article is adequate...
Other issues
Refugees and internally displaced persons
The process of compensation of losses due to terrorism and the fight against terrorism continued to make progress. By May 2008, 313 829 cases had been filed under the relevant Law. Some 40% of these, i.e.126 945 cases have been finalised, out of which 82 893 obtained a favourable response. The deadline for applications for compensation expired on 31 May 2008.
However, despite the efforts made by the Government to improve the situation, reports on shortcomings in implementation of the Law, in particular as regards uneven and inequitable calculation of compensation between provinces, have continued. Furthermore, due to lack of resources and the heavy workload of the Damage Assessment Commissions, progress in the assessment and payment of compensation has been slow.
The situation of IDPs in urban areas remains a cause for concern. IDPs suffer from economic and social marginalisation and have little or no access to social, educational and health services. Return of IDPs is prevented by a number of factors. These include mainly the security situation, but also the lack of basic infrastructure, lack of capital, limited employment opportunities and the threat posed by the village guard system...
Arbitrary cases of refoulement, although not numerous, remain a high concern. There are reports that one of them ended in life loss. (For the situation of asylum seekers and refuges see chapter 24, Justice, Freedom and Security).
The Judiciary
page 67
However, there have been no developments on establishment of the regional courts of appeal. This is a matter of concern. Under the law, these should have been operational by June 2007. In addition, provisions introduced under the Criminal Procedure Code, such as return of the indictment, mediation and cross-examination, have not been used sufficiently in practice.
There have been some developments in the area of judicial reform. In spring 2008, the Ministry of Justice put a draft strategy on its website. This comprehensive document covers issues related to the independence, impartiality, efficiency and effectiveness of the judiciary, enhancement of its professionalism, the management system and measures to enhance confidence in the judiciary, to facilitate access to justice and to improve the penitentiary system.
Asylum
page 73
In the area of asylum, limited progress has been made. Turkey continues to impose its geographical limitation on the 1951 Convention relating to the status of refugees and the related 1967 Protocol. The Ministry of Interior continued to work with the UNHCR to train officials in preparation for decentralisation of decision-making. The department for foreigners, borders and asylum in the Turkish National Police has started to prepare to take over the country of origin information system. Extensive work is underway to improve administrative capacity and streamline asylum procedures. The Ministry of Interior has also initiated the internal administrative procedures to set up an asylum management unit, as the first step towards a dedicated authority able to manage both reception and integration issues.
In 2007, 5 846 requests for asylum were made, a 65% increase compared to 2006 (3 541 applications). In the first eight months of 2008 another 2 364 applications were registered. The total number of applications being processed (investigation phase) increased to 15562 (6 622 Iraqis, 5 449 Iranians, 1 260 Somalis, 1 279 Afghans among others). So far, 44 applicants have been granted refugee status. The Turkish government spent the equivalent of USD 550 000 in 2007 (compared with USD 135 000 in 2006) to cover the basic needs of all asylum seekers – recognised refugees and “temporary asylum seekers” or “guests”.
Footnotes:
- ↑ You can find current and past reports on the progress achieved in Turkey in English, German and French under http://ec.europa.eu/enlargement/how-does-it-work/progress_reports/index_en.htm
- ↑ The composition of the High Council is not representative of the judiciary as a whole: only senior members of the judiciary from the Court of Cassation and the Council of State are members of this Council.
- ↑ The judicial inspectors, who are responsible for evaluating the performance of judges and prosecutors, are attached to the Ministry rather than to the High Council.
- ↑ Istanbul Protocol: Manual on the effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, submitted to the United National Human Rights Commissioner for Human Rights, 9 August 1999.
- ↑ The amended article 301 reads as follows:
- A person who publicly degrades the Turkish nation, the State of the Republic of Turkey, the Turkish Grand National Assembly, the Government of the Republic of Turkey and the judicial bodies of the State, shall be sentenced to a penalty of imprisonment for a term of six months to two years
- A person who publicly degrades the military or security organisations of the State shall be sentenced to a penalty in accordance with the first section
- The expression of an opinion for the purpose of criticism does not constitute an offence.
- The conduct of investigation for such offence shall be subject to the permission of the Minister of Justice.
