Turkey in 2012 Law and Human Rights

7/30/2019 Turkey in 2012 Law and Human Rights

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S E T A | F o u n d a t i o n o r P o l i t i c a l , E c o n o m i c a n d S o c i a l R e s e a r c h | A p r i l , 2 0 1 3 | w w w . s e t a v . o r g | B r i e N o : 6 3

Turkey in 2012:Law and Human Rights

Ylmaz Ensarolu, Yavuz Gtrk, Hseyin Krmz, Cem Duran Uzun

Policy BriefSETA


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P O L I C Y B R I E F

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Authors: Ylmaz Ensarolu, Yavuz Gtrk,Hseyin Krmz, Cem Duran Uzun

Translated by Glgn Kozan Kse

A p r i l , 2 0 13 | B r i e N o : 6 3

TURKEY IN 2012:

LAW AND HUMAN RIGHTS

2 0 1 3 A l l R i g h t s R e s e r v e d

S E T A | N e n e h a t u n C a d d e s i N o : 6 6 G a z i o s m a n p a a / a n k a y a 0 6 7 0 0 A N K A R A T R K Y EP h o n e : + 9 0 3 1 2 . 5 5 1 2 1 0 0 | F a x : + 9 0 3 1 2 . 5 5 1 2 1 9 0 | w w w . s e t a v . o r g | i n o @ s e t a v . o r g

CONTENTS

ABSTRACT | 3

LEGISLATIVE ACTIVITIES | 4

JUDICIARY | 7

HUMAN RIGHTS IN 2012 | 11

CONCLUSION | 25


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L A W A N D H U M A N R I G H T S

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ABSTRACT

In 2012 the government introduced numerous changes and established new mechanisms in order

to reinorce the constitutional state, resolve judiciary issues, protect and improve human rights and

nally strengthen democracy. Some o the new regulations and institutions cherished hopes; however, people were more cautious about some o the laws enacted in order to lighten the burden o

some public institutions or the establishment o some o the new institutions. The number o the

judiciary cases pending beore the court signicantly declined and excessive population density o

prisoners relatively decreased. Nevertheless, the reorm in the judiciary is still needed. Laws such as

the law on mediation in legal disputes, the law on the institution o the ombudsman and the law on

the human rights institution in Turkey enabled the resolution o disputes without being submitted

to the court and cherished hopes o a more ecient supervision o public administration in terms o

human rights. However, appointments to these institutions and work pace o those who have been

appointed provoked serious discussions.

Regional courts o justice and judicial police oces were not established in 2012; however, newprovisions allowed access by individuals to the Constitutional Court as o September 23, 2012. The

government could not meet the schedule and complete the constitutionmaking process at the

end o the year. Nevertheless, this process has been considered as a signicant experience and the

society has never given up hope o a new constitution. Given developments such as the Uludere

incident and explosion at an ammunition storage acility in Ayonkarahisar, impunity o security

personnel remains a serious concern.

There have been signicant improvements in the Kurdish issue, reedom o expression, reedom

o religion, reedom o association and assembly, prisons, womens rights, childrens rights, torture

and maltreatment, rights o the disabled, minorities and reugees among others. Notwithstanding

there are still serious unresolved problems. In 2013 ramework laws pertaining to discrimination,

hate speech and hate crimes which dene abovecited notions in line with international standards

should be enacted and deterrent sanctions or these kinds o crimes should be imposed.


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This policy brie covers developments in law and human rights in 2012. In the rst two

sections constitutional and legislative changes regarding the constitutional state and

human rights, and then judiciary developments will be analyzed. In the nal section

developments in human rights will be evaluated.

LEGISLATIVE ACTIVITIES

Enacted LawsThe Turkish Grand National Assembly (TBMM) enacted a total o 98 laws by the closure

o the administrative year ending December 10, 2012. The leading legislative activities

regarding the constitutional state, human rights and democratization included among

other items the presidential election law, which addresses the procedures or presiden

tial elections and the required qualications or presidential candidates. In line with the

change in the Cheques Act, about 1,500 prisoners who had been sentenced to one

year terms or issuing bad checks were released. Owing to this change, an additional six

hundred thousand cases were dropped. The amendment to the law on MT personnel

requires the prime ministers permission to investigate intelligence ocials. The new

law on the protection o the amily and prevention o violence against women outlines

the principles and procedures or the protection o women, children, and amily mem

bers and the prevention o violence against them. In line with the change in education,

compulsory education was extended rom eight to twelve years and the education sys

tem was reorganized into primary, secondary and high school levels, each consisting o

our years. The amendment to the law on public servants trade unions granted public

servants the right to sign collective agreements and the law on collective agreement

was enacted. The scope o supervised liberty was broadened and a higher number o

prisoners were given the opportunity to serve part o their term outside prison within

the scope o supervised liberty ater completing a portion o their prison term. The lawon mediation in legal disputes enables mediation by voluntary action by the parties

involved in the resolution o civil disputes arising rom matters or proceedings, which

TURKEY IN 2012:

LAW AND HUMAN RIGHTS


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The commissionsinvitation to therepresentativeso minorities washighly welcomed.

parties rom now on will be able to reely resolve. The law on the institution o the om

budsman and the law on the human rights institution in Turkey were also enacted. The

law known as the Third Judicial Reorm Package covers major reorms in various areas

such as enorcement, bankruptcy issues, and criminal justice.

The Constitution-Making Process

The TBMM took concrete steps towards drating a new constitution during the last leg

islative session. The Constitutional Reconciliation Commissionin which three mem

bers rom each party participatedheld its inaugural meeting on October 19, 2011,

under the chairmanship o the speaker o the TBMM, Cemil iek. The commission

makes decisions by consensus, and the issues on which the commission cannot reach

a consensus will be reconsidered at a later time.1

CHRONOLOGY THE CONSTITUTION-MAKING PROCESS

June 12, 2011 Political circles began extensive discussions on drating a new constitution. It was onthe agenda o all political parties in the preelection period.

September 19, 2011 Speaker iek met with twentyour proessors o constitutional law within the scopeo the new constitutionmaking process.

September 26, 2011 The AK Party sent invitation letters to the CHP and the MHP requesting an appointment to discuss the new constitution.

October 19, 2011 The Constitutional Reconciliation Commission held its inaugural meeting.

April 30, 2012 The commission gathered proposals rom individuals and institutions beore dratingthe new constitution.

May 18, 2012 The drating process began. First a subcommission was established and was assigned to drat the text o the new constitution starting rom the basic principles oundamental rights and reedoms.

September 11, 2012 A second drating commission was established to speed up the constitutionmakingprocess.

October 26, 2012 In the rst six months, the commission addressed the undamental rights and reedoms chapter; however, the parties reached a consensus on only ten articles.

November 6, 2012 The commission began to discuss the scal, economic and social provisions andlegislative powers chapters.

The commission called on all members o society to contribute to the constitution

making process. By April 30, 2012, the commission had listened to the opinions o a

total o 426 institutions, including 104 universities, 5 institutes, 58 oundations, 102 as

sociations, 32 platorms and 19 other NGOs, 21 public institutions, 21 political parties,

34 occupational organizations, and 30 trade unions in addition to individuals.2 In order

to ensure broader participation, the commission met with some individuals, accepted

written proposals and provided people with the opportunity to write on the ocial

website or six months, which indicates that the commission paid attention to previous

criticisms that people had not been allowed to contribute to the process. The commis

sions invitation to the representatives o minorities was highly welcomed. In act, the

Ecumenical Patriarch o Constantinople stated that it was the rst time that minorities

received such an ocial invitation in the history o the Turkish Republic.

1. For more inormation on the working procedures and principles o the Commission, see Anayasa UzlamaKomisyonunun alma Usul leri, https://yenianayasa.tbmm.gov.tr/calismaesaslari.aspx, Last Access: 22.11.2012

2. TBMM 24th Term 1st and 2nd Legislative Year Activity Reports (June 12, 2011 July 4, 2012) p.1415.


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The second step o the drating process began in May 2012. The commission at rst ad

dressed the section entitled Fundamental Rights and Freedoms. Because the commis

sion sought a common consensus, the parties agreed on only ten articles in the rst six

months while the drating o 38 articles was suspended due to interparty disagreement.

The commission ailed to complete the drating process by the end o 2012 and is ex

pected to carry out intensive work in 2013. In this sense a great responsibility alls on

the shoulders o the political parties in Parliament and their leaders so that the com

mission completes a nal drat. A eld study3 indicated that the vast majority o the

country wants a constitution in which every segment o the society participated and

on which everyone reached a consensus, while a signicant portion o people is dis

satised with the current constitutionmaking process. Because this new constitutionwill represent a social contract, everyone must review their opinions and expectations

about the new constitution, adopt conciliatory attitudes and nd solutions that are

easy to implement. 4

TBMM Human Rights Inquiry Committee

In 2012 the TBMM Human Rights Inquiry Committee was granted the right to analyze

legislative proposals and drats as the primary or secondary committee. In its rst year,

the committee analyzed seven drats and proposals and submitted related reports. The

committee has not yet completed analyzing an additional 20 proposals and drats. Thecommittee received about 4000 applications between June 2011 and October 2012.

Established in 2012, the subcommittee on prisons pursued inquiries in civil and mili

tary prisons o various regions in Turkey and published reports on those inquiries. An

other subcommittee, which was established in 2011 to investigate domestic violence,

published a report o its research on May 24, 2012. Similarly, another subcommittee,

which was established in 2011 to investigate violations o the right to lie within the

scope o terrorism and violence, examined human rights violations and heard rom

numerous experts including journalists, authors, scholars, human rights advocates and

those who lost their relatives to violence. Another subcommittee established to conduct research on the problems o reugees, asylumseekers, and illegal immigrants in

Turkey published a report on Syrian reugees living in Hatay. The committee also wrote

a report on murders committed by neoNazis in Germany between 2000 and 2006.

On December 28, 2011, thirtyour citizens who were smuggling diesel oil rom Iraq

were killed in an airstrike carried out by Turkish ghter jets near Ortasu (Roboski) vil

lage in Uludere, rnak. On January 9, 2012, a subcommittee was established to look

3. 78.5 percent o the interviewees stated that they expect a constitution where every segment o society par

ticipated and on which everyone reached a consensus. When asked whether they are satised with the currentconstitutionmaking process, 49.9 answered no. For more inormation see Denitions and Expectations Regarding the New Constitution, TESEV, September 2012, p. 2930.

4. Ylmaz Ensarolu, Is the Constitutiondrating period ending? Sabah Perspekti, 17.11.2012

A greatresponsibility alls

on the shoulders othe political parties

in Parliament andtheir leaders so that

the commissioncompletes a nal

drat.


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into the Uludere incident and carried out an investigation. A drat report o that inves

tigation was completed at the end o November ater the committee listened to those

who lost their relatives in the incident, civil and military authorities, and analyzed the

video recorded by ghter jets.

JUDICIARYThe Process of Judicial Reform

The rst and second reorm packages were initially adopted in 2011, and Parliament

passed the third reorm package on July 2, 2012. The law consists o 107 articles abol

ishing speciallyauthorized courts and reducing penalties or those who violate the

privacy o communication while increasing penalties or those who secretly record

conversations without permission. The ourth judicial package is expected to be submitted to Parliament in early 2013. Minister o Justice Sadullah Ergin stated that the

latest package is prepared in line with the European Court o Human Rights decisions

on human rights violations in Turkey.

The drat bill on shortening undulylong trials is still on the Parliaments agenda. The new

regulation outlining compensation procedures aims to reduce the number o cases at

the European Court o Human Rights. In September 2012 individual application was in

troduced into the Turkish legal system through 2010 constitutional amendments and the

law on the establishment and judgment procedures o the Constitutional Court.

Because the Turkish government met 70 percent o the goals set by the Judicial Re

orm Strategy and Action Plan, the Ministry o Justice began updating the plan and

announced a drat o the new strategy in September 2012.

The number o the cases waiting to be heard at the Supreme Court o Appeals dropped

rom 1,150,000 to 880,000 thus decreasing workload by onethird when compared

to 2011. The number o the cases concluded at the Council o State has gradually in

creased since 2008.

Law no. 6352, enacted in July 2012, aims to decrease the heavy workload o the Coun

cil o State. In line with this law, some o the cases heard by the Council o State as the

court o rst instance will be transerred to administrative courts o rst instance; the

number o cases that the Council o State hears as the appeal authority will decrease

and the prosecutors oce o the Council o State will undergo urther changes.

Regional courts o justice, which had been established in teen cities, did not come

into eect in 2012. The High Council o Judges and Prosecutors decided to combine

102 judicial organizations with other judicial organizations in June 2012. In January2012 three courts came into eect in the second and third regions while 22 courts

came into eect in the rst region. Twenty courts stopped working altogether. A total

The new regulationoutliningcompensationprocedures aims toreduce the numbero cases at theEuropean Court oHuman Rights.


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o 2,632 judges and prosecutors received inservice training in the rst six months o

2012.5 The regulations on the working procedures and principles o the High Council

entered into orce on July 4, 2012.

Regulations on the judicial police, which were enacted in 2005, stipulated the estab

lishment o judicial police oces aliated with the prosecutors oce; however, judi

cial police oces still were not established in 2012. This is one o the leading problems

o the criminal justice system. I the police conduct investigation, carry out security op

erations, and also unction as both the investigative and prosecutorial authorities, then

the summary o the proceedings will most oten end in indictment, regardless o the

guilt or innocence o the suspect.6 This is one o the most crucial obstacles to a air trial.

Individual Access to the Constitutional Court

Within the scope o judiciary reorms, new provisions allowed access by individuals to

the Constitutional Court as o September 23, 2012. Individual access was added or the

rst time under the 148th article o the 1982 constitution in line with the reorm pack

age adopted in the reerendum on September 12, 2010. A long and dicult process,

however, was required to put this into practice.

Individual access to the Constitutional Court is a mechanism which allows direct appli

cation o individuals enjoying undamental rights and reedoms, and primarily aims toprotect those undamental rights and reedoms. By adopting this mechanism, the state

indicates that it will work to prevent and remedy human rights violations by ensuring in

dividual applications. Realizing that their decisions can be brought to the Constitutional

Court by individuals, courts will have to be more careul about undamental rights.

Nevertheless, the act that individual access is limited to the rights only guaranteed un

der the constitution and the European Convention on Human Rights provoked harsh

criticisms. Due to this limitation, individual application is not allowed regarding rights

which are not guaranteed under the constitution and the European Convention on Human Rights although these rights are guaranteed under other human rights conven

tions to which Turkey is a party. Although individual access to the Constitutional Court

is legally wellounded, the success o individual access depends on whether the Con

stitutional Court continues to guarantee undamental rights and reedoms and uses its

authorities within the boundaries o the law. Individual access risks being perceived as

aiming to decrease the number o applications rom Turkey to the European Court o

Human Rights. However, the real aim should be to prevent human rights violations in

Turkey and the number o the cases brought to the European Court o Human Rights is

expected to decrease accordingly.5. The High Council o Judges and Prosecutors Activity Report or the rst 6 months o 2012, July 2012, p. 3337.

6. Ylmaz Ensarolu: Yargy bir gvenlik arac olarak kurgulamaktan vazgemeliyiz, Mostar, July 2012.

Realizing that theirdecisions can be

brought to theConstitutional

Court byindividuals, courts

will have to bemore careul about

undamental rights.


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Specially- Authorized Courts

Adopted on July 2, 2012, the third judicial package abolished speciallyauthorized high

criminal courts, which had remained on the agenda due to Ergenekon, Sledgehammer,

KCK and matchxing cases and which provoked criticism similar to the state security

courts. It was decided that these courts will continue hearing ongoing cases but will

not be given any new ones with the conclusion o alreadyopen cases. Upon the rec

ommendation o the Constitutional Court, terrorrelated cases, which had previously

been heard by the speciallyauthorized courts, will be assigned to high criminal courts

in cities chosen by the High Council o Judges and Prosecutors. These courts will cover

more than one city and so regional high criminal courts were established.

People criticized the speciallyauthorized courts primarily on the grounds that thejudges and prosecutors o these courts are granted and carelessly use special and ex

traordinary authorities that limit the right to deense. These courts elicited more criti

cism on the grounds that they attempt to eliminate opposition groups and limit the

political sphere. During the discussions on the abolition o these courts, some argued

that suspects will be released i these courts are abolished, which in turn provoked

criticisms that these courts are thought to serve other special purposes rather than

securing justice or ensuring a air trial.

The September 12th

CaseA Turkish court has accepted indictments against Kenan Evren and Tahsin ahinkaya,

the only survivors among the ve coup leaders in the National Security Council, the

highest decisionmaking body o the military junta that led the 1980 coup. The pros

ecutors are seeking a penalty o aggravated lie sentences. The rst court hearing o

the case was held on April 4, 2012. By November 11th court hearings had been held but

institutions such as the Turkish General Sta, MASAK and MT have not yet submitted

most o the documents requested by the Ankara 12th High Criminal Court.

It is necessary to deepen this case, expand the investigation and accelerate hearings in

order to come to terms with the past. Largescale massacres and provocations which

were committed beore the 1980 coup in order to legitimize it should be investigated

within the scope o the case. Systematic torture and maltreatment during and ater the

coup period should be investigated, and bureaucrats and public servants who commit

ted torture or executed individuals with extreme prejudice should also be brought be

ore the court. However, the current progress o the case does not meet expectations.

Let alone expanding the case, the court ailed even to bring two suspects to the court

and rejected the intervening lawyers demand that suspects testiy regarding charges

o committing systematic torture and maltreatment. That the procoup suspects aced

charges only or the crimes they committed against the state and the privileges thatthey enjoy during their trial deeply hurt public opinion. This case also received criti

cism rom victims and provoked wideranging discussions. It is necessary to investi

It is necessaryto deepen thiscase, expand theinvestigation andaccelerate hearingsin order to cometo terms with thepast.


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gate grave human rights violations, notably torture, which were committed during this

period without delay, to issue a second indictment, and put those who carried out the

coup on trial or committing these crimes.

Controversial Cases

Launched in 2008, the Ergenekon7 case is coming to an end, but proved to be one o the

most controversial cases in 2012. A total o 275 suspects, 67 o whom are under arrest, aced

trial and 600 case hearings have been held in the past our years. During the hearings, some

o the deense lawyers stated that the court has not analyzed all o the evidence, which

violates the right o deense. A new process began or the Ergenekon case ater the court

board gave time or the prosecutor to submit his assessment o the accusations.

The case regarding the Sledgehammer Security Operation Plan concluded on Sep

tember 21, 2012 ollowing a trial lasting 21 months. Within the scope o the case, 365

suspects250 o whom were arrestedaced trial or attempting to overthrow the

Turkish government through orce and violence. While 34 suspects were released, the

other 330 were given prison sentences. Some o the deense lawyers did not, however,

even attend the hearing, but instead protested the prosecutors decision to submit a

920page nal opinion to the court without analyzing the evidence and listening to

some o the witnesses. The indictment o the postmodern coup investigation against

90 suspects who are members o the West Study Group is expected to be concludedat the beginning o 2013. The suspects ace charges or attempting to overthrow the

government or or partially or completely rendering the government dysunctional.

Cases involving unsolved murders and disappearances in the southeast rom the 1990s

were still open in 2012. Among the ongoing cases was the JTEM (Intelligence and Anti

Terrorism Unit o the Gendarmerie) case, which was initiated against seven suspects or

twenty unresolved murders committed in Cizre, rnak, between 1993 and 1995 when

Cemal Temizz served as Cizre Gendarmerie Colonel. Another case was brought against

Temizz, three conessors and our specialized sergeants or deliberate killing in No

vember 2012. The suspects ace ten counts o aggravated lie imprisonment.8 In addi

tion to the abovecited cases, another JTEM casewhich was launched against 16 sus

pects or unresolved murders committed in Diyarbakr, Mardin, Batman, and rnak in

19891994is currently underway in Diyarbakr High Criminal Court No. 6. The Temizz

case and other trials within the scope o this case are signicant in the struggle against

wrongul immunity rom prosecution. Owing to these trials, Turkey is coming terms with

its past. Nevertheless, these cases are criticized or several reasons including the statute

o limitations, limited scope o investigation, nonapplication o witness protection, wit

7. An investigation was launched ater 27 hand grenades, TNT setups and molds were ound in the attic o a house

in a slum in Umraniye, stanbul on June 12, 2007. Initiated ater the rst indictment regarding the investigation wasaccepted on July 25, 2008, the Ergenekon case has been merged with 7 cases including the cases regarding thearmed attack on the Turkish Council o State, Cumhuriyet attack and the Union o Patriotic Forces.

8. JTEMin inaz mangasna 10 kez mebbet hapis talebi, Zaman, 28.1.2012.

Cases involvingunsolved

murders anddisappearances in

the southeast romthe 1990s were still

open in 2012.


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nesses retracting their statements, threats to lawyers, and the length o proceedings.9

Turkey should make the necessary legal arrangements so that the statute o limitations

does not become an obstacle to holding to account public ocials who are believed to

have violated human rights. Similar to the Ergenekon case, witness protection measures

should be taken. The state should provide the necessary resources to ensure the protec

tion o both witnesses and lawyers, and then Turkey will be able to come to terms with

these grave human rights violations and eradicate impunity.

The case on the 2007 assassination o Hrant Dink, the editorinchie o the Agos news

paper, was closed at the 25th hearing on January 17, 2012. Within the scope o the case,

twenty suspects, only two o whom were arrested, aced trial at Istanbul High Criminal

Court No. 14. The court heard the nal testimonies o the suspects and ruled that theassassination was not a premeditated crime. Consequently, Yasin Hayal was sentenced

to aggravated lie imprisonment or instigating the murder, to three months in prison

or threating Orhan Pamuk, and to one year in prison or possessing an unregistered

rearm. Erhan Tuncel was sentenced to ten years and six months in prison but given

his long detention period, he was released.10 Launched in April 2012, the case involv

ing the murder o employees o the stanbulbased publishing house Zirvewhich o

cused on Christianityrelated booksremained unresolved in 2012. Thirteen suspects

are still held on remand.

HUMAN RIGHTS IN 2012Civilian Control of Security Forces

There are serious deciencies in civilian monitoring and control o security orces in

Turkey. One o the greatest obstacles to the development o democracy is the ailure

to carry out eective and transparent investigations o incidents in which security per

sonnel are guilty or negligent. One o the most controversial events addressed in 2012

was the Uludere massacre, which took place on December 28, 2011. Thirtyour civil

ians were killed in the incident and the prosecutors declared the investigation docu

ments condential. In its drat report, the TBMM Human Rights Inquiry Committee did

not indicate who gave the order and stated instead that local security oces were not

inormed about the operation. Another controversial incident was the September 2012

explosion at an ammunition storage acility in Ayonkarahisar in which 25 soldiers were

killed and 23 others were injured. In the wake o the incident, the public prosecutors

oce and military prosecutors oce launched a judicial investigation while the Gen

eral Sta and Ministry o National Deense launched administrative investigation into

the incident. Nevertheless, results o the investigations have not yet been declared to

the public.

9. Time or Justice/ Ending Impunity or Killings and Disappearances in 1990s Turkey, Human Rights Watch, 2012,

p. 23.10. The prime suspect o the Hrant Dink assassination, Ogn Samast aced trial at Istanbul 2nd Juvenile HighCriminal Court and was sentenced to 22 years and 10 months in prison or premeditated murder and possessingunregistered rearm on July 25, 2011.

One o the greatestobstacles to thedevelopment odemocracy is theailure to carryout eectiveand transparentinvestigations oincidents in whichsecurity personnelare guilty or

negligent.


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Furthermore, law no. 6085 on the Turkish Court o Accounts, which was originally en

acted in December 2010, underwent changes on June 29, 2012. These changes dam

aged the autonomy o the Court o Accounts and came close to removing the control

o expenditures o both military and civilian institutions.

TBMM Coup and Memorandum Investigation Commission

The TBMM Coup and Memorandum Investigation Commission11 carried out its inves

tigations with seventeen members o parliament in 2012. Moreover 46 experts con

tributed to the commission. The commission began its investigations on May 2, 2012,

and listened to the testimonies o 157 people. The commission asked the opinions o

politicians, military ocials, bureaucrats, media bosses, and journalists regarding the

coup and memoranda. Whereas Kenan Evren and Tahsin ahinkaya, the leaders o theSeptember 12th coup, reused to testiy on the grounds that the commission may not

subpoena them or inormation as they acted according to temporary articles o the

constitution, although they had already been called twice to testiy.12 Commission chair

Nimet Ba stated that the National Security Council shared the March 12th and February

28th decisions or the rst time. These decisions will not, however, be declared to the

media and public as they are still condential.13 Ba also stated that the General Sta

and the National Security Council reused to send certain documents on the grounds

that these documents constitute state secrets.14

It is signicant that all political parties in the TBMM contribute to the commission.

In democratic countries public institutions are willing to testiy to a commission es

tablished by the parliament; however, in Turkey there are those who easily decline a

parliamentary commissions invitation. The report o the commission will be a unique

example in many ways. The report is expected to pave the way or Turkey to come to

terms with its past and to conront crimes against humanity committed in the past and

coup dtats that damaged democracy. Thereore it is necessary to pay attention to the

recommendations put orward by the commission.

Compliance with international human rights law

In the rst nine months o 2012 the ECtHR delivered 160 judgments that ound Turkey

in violation o the European Convention o Human Rights.15 Turkeyrelated cases con

stituted 43 percent (30, 887,569 Euro) o ECtHR decisions or compensation (71,889,407

11. The ull name o the Commission: The Parliamentary Investigation Commission or investigating all attemptsand processes that disable democracy in our country by means o coups and memoranda and or introducingnecessary measures.

12. Darbeciler Anayasalarna Snd, http://www.tbmm.gov.tr/develop/owa/gazete_haberleri.haber_

detay?pkayit_no=1437015, Last Access: 15.11.201213. 28 ubat halk renmeyecek, Milliyet, 04.09.2012.

14. TSK ve MT baz belgeleri vermedi, Milliyet, 15.11.2012.

15. European Commission, 2012 Progress Report or Turkey, p.18.

The report isexpected to pave

the way or Turkeyto come to termswith its past and

to conront crimesagainst humanity

committed inthe past andcoup dtats

that damaged

democracy.


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Euro) in 2011.16 At the end o 2012, 17,100 Turkeyrelated cases were still waiting to be

heard. Applications rom Turkey to the ECtHR constitute 12.6 percent o the total ap

plications.17Turkey comes second in the number o applications ater Russia. However,

Pro. Dr. Il Karaka, a judge at the ECtHR, stated that this ranking is misleading as only

10 percent o the Russian cases will be worth investigating while the Court will investi

gate 60 percent o the Turkish ones.18

In 2012 the government took a signicant step to shorten long detention times, which

constitute a signicant amount o the applications to the ECtHR. The drat submitted

to the TBMM on May 17, 2012, will enable the establishment o a commission on do

mestic law in Ankara and this commission will deal with three thousand cases related

to long detention terms waiting to be heard. This mechanismwhich will unction as acompensation commissionaims to eliminate the cases waiting beore the ECtHR, to

pay cash compensation to victims and to conclude cases within Turkey. As a result the

ECtHR suspended Turkeyrelated cases regarding long jail terms or one year in order

to give time to the commission to get prepared. In 2012 Turkey reused to remove its

reservations about Protocol No. 1 to the European Convention on Human Rights, in

cluding issues such as reservation o ownership, right to education, and ree elections.

Turkey has yet to become a party to Additional Protocol No. 4, which was signed on

October 19, 1992 and ratied February 23, 1994. Protocol No. 7, which Turkey signedon March 14, 1985, has also not been ratied. Turkey did sign the antidiscrimination

treaty o the Council o Europe, and Protocol No. 12 to the ECtHR on April 18, 2001;

however, it has not yet been ratied the protocol.

Signed on May 11, 2011 in Istanbul, the Council o Europe Convention on Preventing

and Combatting Violence against Women and Domestic Violence, also known as the

Istanbul Convention, entered into orce March 8, 2012. The Turkish Parliament was the

rst parliament in the world to pass the convention.

16. Supervision o the execution o judgments and decisions o the European Court o Human Rights / Annual

report, 2011, Council o Europe, April 2012.17. ECHR Pending Applications Allocated To a Judicial Formation, http://www.echr.coe.int/NR/rdonlyres/D552E6AD4FCF4A77BB70CBA53567AD16/0/CHART_311092012.pd, Last Access: 26.11.2012

18. Sedat Ergin, AHMdeki Trk yarg: Durumumuz parlak deil, Hrriyet, 27.11.2012.

In 2012 thegovernment tooka signicant stepto shorten longdetention times,which constitute asignicant amounto the applicationsto the ECtHR.


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ASSESSMENT OF TURKEY BY UNITED NATIONS INSTITUTIONS

UN Universal Periodic Review Mechanism: No evaluation conducted in 2012. UN Committee on Racial Discrimination: Turkey was evaluated in 2009. The committee announced its

recommendations under 24 headings and requested an interim report rom Turkey on three o these recommendations by March 2010 and its ourth and th periodic reports in 2011. However, Turkey has yet tosubmit these reports to the committee.

UN Committee on Childrens Rights:Turkey submitted the rst periodic report mandated by the committeein 2007 combined with the second and third periodic reports in 2009. The second and third reports were reviewed by the committee in its sessions held May 29June 15, 2012.19 The committee demanded that Turkeysubmit its combined ourth and th reports on May 3, 2017 and include inormation about the implementation o current reviews.

UN Committee for the Prevention of Torture: The committee reviewed Turkeys third periodic report, submitted ater a ouryear delay in November 2010. Turkey is obliged to submit its ourth report by November19, 2014.

UN Committee on Economic, Social and Cultural Rights: The committee evaluated Turkeys rst periodicreport on October 1718, 2012. Turkey is obliged to submit its second report by June 30, 2016.

UN International Covenant on Civil and Political Rights: Turkey submitted the mandated reportwhichwas originally due on December 16, 2004on March 17, 2011.20 The committee will review Turkeys report in2013. Turkey is obliged to submit its second report by October 31, 2016.

UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW): Turkey submitted its interim report on July 2012. It is obliged to submit the new periodic report by July 31, 2014.

UN Convention on Disabled Rights: Turkey ratied the UN Convention on Disabled Rights on December 3,2008. A state is required to submit its rst report two years ater it becomes a party to the convention and submit other routine reports in every our years. Turkey was obliged to submit its rst report by October 28, 2011.

UN Committee on Migrant Workers: Turkey ratied the convention on the protection o the rights o all workers and members o their amilies on April 26, 2001. Turkey made a declaration regarding Articles 76 and 77and stated that it will recognize the competence o the committee at a later time. Turkey has not yet done so.

1920

Institutionalization of Human RightsTurkey took signicant steps in the institutionalization o human rights in 2012. The

rst one was the law enabling the establishment o an ombudsman. On November

27, 2012 Mehmet Nihat merolu was elected as ombudsman by receiving the high

est number o votes in Parliament.21 In 2012 another signicant development was the

establishment o the human rights institution o Turkey. Enacted in June, the law re

ceived criticism rom civil society organizations on the grounds that they are not given

the opportunity to express their opinion during the preparation o the law or when

Parliament passed the law. The president, government, YK and presidents o bar as

sociations appointed eleven board members in September under the ramework o

the law.22

At rst, the board will choose a president and a second president among itsmembers and appoint a bureaucrat as vice president. Then the institution will begin

working and the Human Rights Presidency o the Prime Ministry o the Republic o

Turkey will be abolished.

The TBMM Human Rights Inquiry Committeewhich has been in orce since 1990

underwent a structural change in 2012. The change in the law o establishment on

19. For the ull report, see http://www2.ohchr.org/english/bodies/crc/docs/co/CRC_C_TUR_CO_23.pd.

20. For the ull report see http://www.ccprcentre.org/doc/HRC/Turkey/CCPR.C.TUR.1_en.doc

21. Serpil akn, Mehmet Elkatm, Zekeriya Aslan, Muhittin Mhak and Abdullah Cengiz Makas were elected asombudsman in the election held on November 28, 2012.

22. The President Abdullah Gl appointed Pro. Dr. Serap Yazc and Assist. Pro. Levent Korkut; the Council o Ministers appointed Assoc. Pro. Dr. Abdurrahman Eren, lawyer Fatma Benli, Dr. Hikmet Tlen, mer Vardan, Selametlday, Ylmaz Ensarolu and Pro. Dr. Yusu evki Hakyemez as board members. YK appointed Pro. Dr. Nihat Bulutand the President o Artvin Bar, lawyer zzet Varan won the elections held by the Presidents o Bar Associations.

Parliamentcontinued to

carry out reormsin reedom oexpression by

adopting judicialpackages in 2012.


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December 1, 2011 granted the commission the right to analyze bills o law and drats

as the main or secondary commission.

Ater the Optional Protocol to the UN Convention Against Torturewhich Turkey

signed in 2005was published in the ocial gazette and entered into orce on March

12, 2011, Turkey was obliged to establish a national preventive mechanism in line with

the Optional Protocol within one year. However Turkey has not taken any initiative to

wards an OPCAT national preventive mechanism, though it was obliged to establish

such a mechanism by October 27, 2012. The Ministry o Internal Aairs continued its

work on the drat law on establishing a commission or equality and against discrimi

nation in 2012. The drat law on establishing an independent police complaints com

mission is still on the agenda. Parliament has yet to pass the law.

Human Rights Issues

Freedom of Expression

Parliament continued to carry out reorms in reedom o expression by adopting judi

cial packages in 2012. The third judicial package banned the conscation o unpub

lished works. Nevertheless there are still problems regarding the reedom o expres

sion. The ECtHR received numerous applications regarding violations o reedom o

expression in Turkey.

Cases against imprisoned journalists and members o the press sparked widespread

discussion in 2012. The Committee to Protect Journalists argued that 76 journalists are

in prison; at least 61 are jailed in direct reprisal or their journalism, according to the

organizations October 2012 report.23 The government, on the other hand, has argued

that detained or convicted journalists are not jailed due to their proession but or un

related criminal acts. Individuals may ace trial or writing an article or making a speech

under Articles 6 and 7 o the AntiTerror Law in combination with Articles 220 and 314

o the Turkish criminal code, which are criticized as violations o reedom o expres

sion.24 Laws are not the only obstacles to reedom o the press. One should note that

oppression and threats rom politicians, public ocials, and media bosses have led tothe dismissal o some journalists, leading to an increase in selcensorship.

Freedom of Religion

The concept o secularism in Turkey is authoritarian. Secularism in Turkey means de

ning the religion. Secularism in Turkey is imposing this religion on everyone. There

ore, this concept o secularism oppresses Muslims whose sense o religion is dierent

rom the ocial one and practically ignores other religious groups. As a matter o act,

there are no religious minorities legally recognized in Turkey apart rom Armenian,

23. The report states that the evidence was less clear in the cases o the 15 other journalist being held but CPJ continues to investigate. See Turkeys Press Freedom Crisis, Special Report by the Committee to Protect Journalist,http://cpj.org/reports/Turkey2012.English.pd Last Access: 06.02.2013

24. European Commission, 2012 Progress Report or Turkey, p. 22

This concepto secularismoppresses Muslimswhose sense oreligion is dierentrom the ocialone and practicallyignores otherreligious groups.


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Greek, and Jewish groups, which were recognized by the Treaty o Lausanne. In 2012

problems related to reedom o religion persisted. Bans on settlement and places o

traditional religious groups remained in place; the demands o Alevi and Shiite/Jaari

groups have not been met.

The majority o universities do not impose a headscar ban; however, the headscar

issue still exists. Whether a student can wear a headscar depends on university direc

tors. Some let students wear headscarves while some still impose the ban. The heads

car is still banned in public institutions.

In 2012 the head o Turkeys Directorate o Religious Aairs (Diyanet) visited the Ecumeni

cal Patriarchate o Constantinople or the rst time in Republican history.25 The head othe Diyanet also visited cemevis in previous years. His initiatives or dialogue were wel

comed but the Directorate o Religious Aairs remained structurally unchanged in 2012.

The Directorate o Religious Aairs elicited criticism when it included monitoring mis

sionary activities within the country and abroad in its 20122016 strategic plan.26

On the other hand, obstacles or nonMuslims wishing to learn and teach their own re

ligions persist. Though it sparked considerable discussion, the Halki Theological Semi

nary remains closed. Because nonMuslim groups other than those recognized by the

Treaty o Lausanne are not ocially recognized (in other words because they are un

incorporated) they ace various problems concerning their property rights, when they

resort to jurisdiction or when they want to obtain resident permits. In August 2012, the

Ecumenical Patriarch o Constantinople celebrated the third mass since 1923 in Smela

Monastery in Trabzon. The Holy Cross Armenian Church continues to celebrate its an

nual mass on Akdamar Island in Lake Van.

The status o cemevis was another controversial issue regarding reedom o religion

in 2012. The Supreme Court o Appeals 7th Civil Chamber decided to close down the

Cemevi Building Association and ruled that only mosques and masjids are considered

places o worship.27 Speaker iek rejected MP Hseyin Aygns demand or buildingcemevis, arguing that Alevism is a ormation within Islam and the house o worship or

Islam is the mosque.28 Consequently some Alevi groups reacted negatively to these

developments. 29

New course books prepared by the Ministry o National Education that include inor

mation on Alevism were welcomed in the 20122013 academic year. Religious educa

25. Balatta Tarihi Buluma, http://www.ntvmsnbc.com/id/25364169, Last Access: 10.12.2012.

26. 20122016 Strategic Plan o the Directorate o Religious Aairs Ankara, 2012, p.90.

27. Cami ve mescit dnda bir ibadethane olamaz, Star, 28.08.2012.28. slam dininin ibadet yeri camidir, Vatan, 09.07.2012.

29. Cemevleri Alevilerin badet Merkezidir!, http://www.aleviederasyonu.org.tr/index.php?option=com_content&view=article&id=486, Last Access: 10.12.2012.

The statuso cemevis

was anothercontroversial issueregarding reedomo religion in 2012.


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tion, however, is still compulsory in schools. The decision o the ECtHR in the Zengin/

Turkey case has not been implemented. Similarly, the 2010 decision o the ECtHR that

the religious aliation section on the Turkish identity card violates the European Con

vention on Human rights has not been implemented, thus provoking criticism.

Published in July 2012, the U.S. International Religious Freedom Report or Turkey

stated that the government generally respected religious reedom, but also that some

constitutional provisions restricted this right, some groups were exposed to pressure

due to their religious belies and practices, and the government continued to impose

limitations, particularly on nonMuslim groups.30

Freedom of Association and AssemblyIn 2012 one o the signicant developments in reedom o association was the amend

ment to the law on public servants trade unions. Enacted April 4, 2012, the new law

granted public servants the right to sign collective agreements and enabled trade

unions and conederations to establish international institutions in line with the tar

gets set by their regulations. The state will no longer be able to relocate local represen

tatives o trade unions against their will. The postponed and controversial law on trade

unions and collective agreement was enacted on October 18, 2012.

The decree law, dated November 2011, gave additional authority to the Ministry o

Health and established the Health Proessions Council.31 The Turkish Medical Associa

tion and the World Medical Association criticized the law on the grounds that it de

creased selgoverning powers o the medical association.32 Other operations against

trade unions and civil society organizations continued in 2012. Though it is constitu

tionally guaranteed, reedom o association and assembly is sometimes curtailed in

practice. This mainly results rom administrative arrangements. Security orces rom

time to time resort to excessive orce in demonstrations on issues such as union rights,

the Kurdish issue, and student rights.

Prisons

Data gathered rom the Ministry o Justice33 indicated that in 2011 a total o 128,604 in

dividuals were in prison in Turkey, 92,617 o whom were convicted and 35,987 were held

on remand. Justice Minister Sadullah Ergin announced on October 24, 2012 that there

are currently 126,872 prisoners in all, 94,830 convicted and 32,042 held on remand.

30. U.S. International Religious Freedom Report or 2011Turkey, http://www.state.gov/j/drl/rls/ir/religiousreedom/index.htm?dlid=192871, Last Access: 10.12.12.

31. The Decree Law Concerning the Organization and Duties o the Ministry o Health and Aliated Institutions,Ocial Gazette, No: 28103 02.11.2012.

32. Turkish Government urged to Restore Powers to Medical Association, http://www.wma.net/en/40news/20archives/2012/2012_08/index.html, Last Access: 12.12.2012.

33. For more inormation see Ministry o Justice, Director General o Prisons and Detention Houses http://www.cte.adalet.gov.tr, Last Access: 12.11.2012.

In 2012 one othe signicantdevelopmentsin reedom oassociation wasthe amendment tothe law on publicservants tradeunions.


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The most signicant development o 2012 in the prison system took place in April

2012. Owing to a change in the law, those who completed their last six months in a

lowsecurity prison, those who spent oneth o their sentence in juvenile detention

acilities or those with good behavior who will be released on probation in one year

or less were given the opportunity to serve part o their term outside prison within

the scope o supervised liberty. Ater the law was enacted, about eighteen thousand

prisoners were released on probation within three months. It is positive that the num

ber o convicted prisoners increased while the number o the prisoners on remand

decreased. Nevertheless the high number o prisoners exceeding the capacity o the

acilities is still a big concern despite the change in the law on supervised liberty.

Out o 377 detention acilities, only three unction as minor training houses while ourserve as juvenile prisons and detention centers. It is necessary to increase the number

o minor training acilities and juvenile prisons in order to prevent torture, sexual ha

rassment and sex abuses as claimed in Adanas Pozant juvenile prison and children

should be separated rom adults in prison. In 2012 in total thirteen new penal institu

tions were opened, seven annex buildings were constructed. The construction o three

detention acilities is still underway.34

Thirteen prisoners burned to death in a re in the anlura Etype prison in June, put

ting the control o prisoners on the agenda once again. Today judges and auditors,

state and regional human rights committees, prison monitoring boards and the TBMM

Human Rights Inquiry Committee hold administrative control over penal institutions.

Within the scope o international control, the European Committee or the Prevention

o Torture may visit prisons with or without notice, but must obtain permission rom

the state in order to publish its report. It is uncertain whether these control mecha

nisms bring about change in prison conditions. Human rights organizations still have

no opportunity to monitor prisons.

There are still obstacles to reprieve or amnesty or seriously ill prisoners. The Forensic

Medicine Institution is the sole institution responsible or publishing reports on the issue. Thereore giving authority to orensic medicine departments o medical aculties

and to orensic medicine departments o hospitals will ease the burden o the Foren

sic Medicine Institution and remove current obstacles. Moreover this will acilitate the

timely response to seriously ill prisoners.

Another signicant development regarding prisons in Turkey was hunger strikes at the

end o 2012. PKK, PJAK and KCK prisoners began hunger strikes on September 12, 2012,

demanding an end to Abdullah calans solidarity connement and Kurdish language

rights in education and in court. More than 600 prisoners joined the hunger strikes.

34. The Minister o Justice, Sadullah Ergins speech at TBMM Planning and Budget Committee http://www.sgb.adalet.gov.tr/duyurular/2012/2013YiliButce%20SunusKonusmasi.pd, Last Access: 06.12.2012.

t is necessaryto increase the

number o minortraining acilities

and juvenileprisons in order to

prevent torture,sexual harassment

and sex abuses.


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On November 17, 2012, Abdullah calan called on the strikers to stop in a statement

issued by his brother Mehmet calan, thus ending a 68day hunger strike. It is note

worthy that all actors, notably Justice Minister Ergin, successully managed the crisis.

Womens Rights

Last year signicant legal arrangements were made regarding the prevention o vio

lence against women. The rst one is the law on the protection o the amily and pre

vention o violence against women, enacted March 20, 2012. The law aims to protect

women, children, amily members, and victims o unilateral and persistent stalking and

prevent violence against them. Prior to the enactment o the law, the Womens Plat

orm against Violence, consisting o 237 womens organizations, stated deciencies in

the drat law in a letter to members o parliament.

The 20072010 National Action Plan on Combatting Domestic Violence against Women

was updated with contributions rom civil society organizations and universities. The

2011 Joint Report o the Monitoring and Evaluation Meeting o the 20082013 National

Action Plan on Gender Equality was announced in May 2012. Furthermore, on April 12,

2012 the Ministry o Family and Social Policies and General Command o Gendarmerie

signed a protocol on providing training to gendarmerie personnel on prevention o

violence against women and gender in order to support victims o violence.

On March 8, 2012 the Istanbul Convention, the rst legally binding instrument in inter

national law to prevent violence against women and domestic violence, entered into

orce. Turkey had led the drating process o the convention.

In 2012 the scope or womens shelters was broadened and the government took the

required initiatives to change related regulations. In the rst ten months o 2012, twenty

new shelters were opened. There are a total o 103 guest houses/shelters while 35 prov

inces still have no shelters. The new regulation on women shelterswhich was submit

ted to the Prime Ministry on November 20, 2012decided that the government will

lease independent sae houses or victims o violence with children older than twelve.

The Turkish Parliament passed the law on amending the decree laws concerning the

organization and duties o the Ministry o Health and aliated institutions to limit

births by cesarean section to cases o medical necessity, thus causing a disagreement

between the government and women organizations. Civil society organizations ar

gued that the law was enacted without preparation and discussion. A similar polemic

occupied the agenda ollowing the governments statements on abortion.

Childrens RightsIn 2012 Turkey retained reservations concerning the UN Convention on the Rights o

the Child and the Article 2 o Protocol No. 1 to the ECtHR on the right to education on

In 2012 the scopeor womensshelters wasbroadened andthe governmenttook the requiredinitiatives tochange relatedregulations.


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the grounds that Law No. 430 rom May 1924 prohibits the establishment o religious

private schools.

In 2012 the UN Committee on the Rights o the Child provided the most signicant

evaluation o childrens rights in Turkey.35 The committee welcomed the amendments

to the 2010 counterterrorism law providing or children to stand trial in juvenile courts,

and sotening penalties or juveniles under the age o eighteen. The law on child pro

tection was enacted in 2005 and legal amendments concerning persons with disabili

ties (2005) in the area o education, rehabilitation, care and social security o children

with disabilities were included. Furthermore, the new Turkish penal code increased the

minimum age o criminal responsibility rom eleven to twelve. The committee praised

Turkey or signing a number o conventions and protocols on the right o the child.On the other hand, the committee criticized Turkey or not removing reservations to

the Convention on the Rights o the Child, or not establishing an independent and

eective monitoring mechanism, or not prohibiting discrimination against children

belonging to minorities not recognized under the Treaty o Lausanne o 1923, and or

disparities aecting children living in the eastern and southeastern regions and in rural

areas, especially with regard to their access to adequate health and education and or

poor conditions in some prisons.

The regulation on dress codes o students in schools aliated with the Ministry o

National Education was amended in November 2012.36 The regulation removed theschool uniorm requirement in preschool, primary, secondary and high schools. That

the regulation lited the headscar ban only or Imam Hatip schools and in some elec

tive courses provoked serious criticism.

In 2012 some cases provoked debate on measures against child abuse and attitudes o

public institutions, judiciary institutions and the media.

Torture and Ill-treatment

In 2012 human rights organizations constantly criticized Turkey or excessive use o

orce by security orces in detentions centers and prisons, during detention, and outside ocial detention centers. The European Commission stated that the number and

intensity o the cases o illtreatment by law enorcement ocers have decreased. Hu

man rights organizations argue, however, that the intensity o torture and illtreatment

is rising and that impunity provokes torture.37

It is positive that some courts accept committee reports rom the Forensic Medicine

Institution (aliated with the Ministry o Justice,) orensic practitioners, universities or

35. For the ull report see http://www2.ohchr.org/english/bodies/crc/docs/co/CRC_C_TUR_CO_23.pd.

36. Regulation on Students Dress Codes in Schools aliated to the Ministry o National Education, Ocial Gazette, No: 28480, 27.11.2012.

37. Joint Public Statement o HRFT and IHD on 10 December 2011, http://www.ihd.org.tr/index.php?option=com_content&view=article&id=2606, Last Access:10.12.2012.

The new Turkishpenal code

increased theminimum age

o criminalresponsibility rom

eleven to twelve.


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independent institutions as evidence. Turkey has not established a national preventive

mechanism in line with the Optional Protocol yet, although it ratied the Optional Pro

tocol to the UN Convention against Torture.

Allegations o torture and illtreatment in the Turkish Armed Forces provoked heated

debate in 2012. Civil society organizations have intensied their work on these issues

in recent years. In their reports, torture and illtreatment in the army include insults,

beating, involuntary excessive physical activity, threats, disproportionate punishment,

sleep deprivation, [and] denial o access to proper healthcare.38

It is necessary to switly and comprehensivelycarry out not only judicial but also admin

istrative investigations on allegations o torture by public ocials. Impunity remainsa concern as administrative investigations on allegations o torture and illtreatment

are incomplete and drawnout, and prison sentences are most o the time suspended.

Moreover, citizens are threatened with obstructing charges when they are willing to

le a complaint or torture and illtreatment.

Persons with disabilities

On September 28, 2009, Turkey signed the Optional Protocol to the UN Convention on

the Rights o Persons with Disabilities under which the UN can receive individual and

collective complaints. It had ratied the UN Convention in December 2008 but it has

yet to ratiy the protocol itsel.Thereore individuals cannot apply to the UN or humanrights violations o persons with disabilities in Turkey. Turkey also has not established

a national implementation and monitoring mechanism though it is a party to the Con

vention. Various people and institutions, notably the UN Human Rights Committee,

have called on Turkey to establish an appropriate research commission in the TBMM.

On the other hand, there are considerable improvements in services or people with

disabilities. For instance, homebased care services or the disabled have expanded

and eorts to promote entrepreneurship or people with disabilities have increased.

There are still obstacles to the employment o the disabled in the public sector and

people with disabilities still have diculties in access to education, health, social andpublic services. There is still no independent body to monitor and inspect mental

health institutions.39

Minorities and Cultural Rights

In 2012 representatives o nonMuslim minorities were invited to the TBMM to give

their opinions during the constitutiondrating process or the rst time. The amend

ment to the regulation o private schools by the Ministry o National Education allows

Armenian, Greek and Jewish students who are not citizens o Turkey to receive edu

cation in schools belonging to Armenian, Greek and Jewish groups as guest students.

38. Zorunlu Askerlik Srasnda Yaanan Hak hlalleri, askerhaklari.com, October 2012.

39. European Commission, 2012 Progress Report or Turkey, p.29.

Turkey has notestablished anational preventivemechanism in linewith the OptionalProtocol yet.


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This oers a solution to educational problems o children o Armenian migrants who

illegally work in Turkey.40 Furthermore, the government made legislative amendments

allowing newspapers published by nonMuslim groups to publish an ocial announce

ment in 2012.

In 2012 no documented physical attacks against minorities took place in Turkey. Never

theless, the case concerning assassination o three Protestants in Malatya in April 2007

and the case concerning the assassination o Bishop Padovese in skenderun in 2010

are still ongoing. In 2012 the Supreme Court o Appeals decided that 276 thousand

square meters o the 1615yearold Mor Gabriel Monastery in Midyat, Mardin belong

to the Treasury. This decision overshadowed reorms in an environment where radi

cal solutions are provided or property issues o Turkeys nonMuslim oundations andgroups and it provoked criticisms within the country and abroad.

Turkey did not sign the European Council Framework Convention or the Protection o

National Minorities and European Charter or Regional or Minority Languages.41

Turkey has retained its reservations about the UN Covenant on Civil and Political Rights

in terms o minority rights and reservations about the UN Covenant on Economic, So

cial and Cultural Rights in terms o right to education. I Turkey removes these reserva

tions and signs and raties these covenants, then it will eectively guarantee the rights

and reedoms o minorities in Turkey.

Kurdish Issue

In 2012 the Kurdish issue was again among the most controversial human rights issues.

Furthermore, 2012 has been a year o violence and conficts, terrorist acts, security op

erations and securityocused policies. Turkey witnessed increasing armed conficts

between security orces and PKK militants. Through the end o October, 123 soldiers

and more than 300 PKK militants were killed in clashes between security orces and the

PKK.42 International public opinion, including the EU, condemned the attacks. The PKK

also kidnapped politicians and civilians in addition to security ocials thus provokingserious reactions.

On December 28, 2011, thirtyour citizens smuggling diesel oil rom Iraq were killed in

an airstrike carried out by Turkish ghter jets near Ortasu (Roboski) village in Uludere,

rnak. People continued to voice concerns and criticisms about the transparency and

eciency o the investigation o the incident. Similarly, the act that neither the military

nor civilian authorities apologized or the incident provoked reactions.

40. MEBden aznlk okullar iin beklenen dzenleme, Agos, 21.03.2012.41. Turkey is one o the our countries which have not signed the covenant, others being Andorra, France andMonaco See. http://www.coe.int/t/dghl/monitoring/minorities/deault_en.asp, Last Access: 09.12.2012.

42. 2002: 6 ehit, 2012: 123 ehit, http://www.ntvmsnbc.com/id/25404614, Last Access: 09.12.2012.

2012 has been ayear o violence

and conficts,terrorist acts,

security operationsand security

ocused policies.


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Operations against the illegal urban wing o the PKK, also known as the Koma Ciwaken

Kurdistan Union o Communities in Kurdistan/Assembly o Turkey (KCK/TM), contin

ued in 2012. Long detention o thousands o people including members o the parlia

ment, mayors and representatives o local authorities heightened tension in southeast

ern Turkey.

Within the scope o human rights, the debate about the Kurdish issue ocused on the

right to education in the mother tongue, which is one o the signicant rights guar

anteed by international conventions. Right to education in mother tongue should be

addressed as a pedagogical and humanitarian issue concerning child development

rather than an instrument o a political struggle. Thereore teaching mother tongue in

an elective course alone does not guarantee this right. On the other hand, it is positivethat the Ministry o National Education oers elective language and dialect courses in

cluding Kurdish and Circassian beginning in the 20122013 academic year and Kurdish

undergraduate and graduate courses and departments were established in universi

ties. These are positive steps towards ully guaranteeing the right to education in the

mother tongue and additional steps along these lines should be taken.

The government addressed regulations on the right to deense in mother tongue in

order to deuse a related crisis which arose ollowing KCK cases in 2009. The TBMM

Justice Commission and Human Rights Inquiry Committee addressed the regulation43

and Parliament put it on its agenda in December 2012. This regulation was among the

promises given at the AK Party Grand Congress and the government accelerated the

regulation due to the prison hunger strikes.

Another positive development was that the period o implementation o the law on

the compensation o losses resulting rom terrorism and the ght against terrorism

was extended by one year in April 2012. Damage assessment commissions received

361,391 applications up to September 2012. O those, 305,758 were assessed, with

compensation paid in 166,158 cases and 139,600 applications rejected.44

There are still some limitations or the use o languages other than Turkish in legisla

tion as well as in the constitution and law on political parties. Furthermore the Council

o Europes Congress o Local and Regional Authorities Recommendation 229 (2007)45

to permit municipal councils to use languages other than Turkish in the provision on

public services when appropriate and to reorm the municipality law accordingly has

43. Drat law amending the Code o Criminal Procedure and the Law on the Execution o Penalties and SecurityMeasures, http://www2.tbmm.gov.tr/d24/1/10708.pd, Last Access: 10.12.2012.


45. The recommendation emphasized that cultural rights and reedoms o those Turkish citizens who use languages other than Turkish are limited and the measures taken against local authorities or using languages otherthan Turkish in the provision o public services are not being applied consistently to all languages. For the ull textsee. Recommandation 229 (2007) Dmocratie locale en Turquie, Conseil de lEurope, 20 Novembre 2007.

Within the scopeo human rights,the debate aboutthe Kurdish issueocused on theright to educationin the mothertongue.


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not been implemented. The demands o Kurdish people in Turkey, however, are not

limited to individual rights and reedomsthey include political demands as well.

Thereore a undamental democratic governance reorm based on decentralization

which strengthens local authorities through transerring some powers rom the central

administration to them will meet various demands o Kurdish people. Consequently, it

is an obligation to consider projections as to the resolution o the Kurdish issue rom

the perspective o strengthening local authorities.

Refugees

In 2012 Turkey took positive steps concerning reugees and asylum seekers. The Euro

pean Commission stated that there were improvements in treatment and detention

conditions in the removal centers and that law enorcement ocials and central andlocal administrations have improved their practices. 46

The drat law on oreigners and international protection, which will shape Turkeys poli

cies on migration and asylum, was accepted unanimously by the TBMM Internal Aairs

Committee on June 27, 2012 and reerred to the TBMM General Assembly. Work contin

ues on the drat law on combating human tracking and protecting its victims.

Although Turkey ratied the 1951 convention relating to the status o reugees in 1961

and its 1967 protocol in 1968, it has not removed its geographical objections to the

Convention. Accordingly, Turkey provides reugee status only to citizens rom European countries while it issues temporary residence permits to citizens rom nonEurope

an countries. Turkey should remove this geographical reservation. Turkey retained its

reservations towards Article 40 o the International Convention on the Protection o

the Rights o All Migrant Workers and Members o their Families, which was approved

by the UN on December 18, 1990 and ratied by Turkey on April 26, 2001.47

The UN data indicates that there were 22,640 reugees and asylum seekers in Turkey

as o June 2012.48 This does not include asylum seekers rom Syria who have fed their

country since March 2011 due to civil war. As o November 2012, there were 123,747

Syrian citizens in Turkey.49 The UN and the international community have expressed

their appreciation that Turkey provides humanitarian aid to Syria50 while civil society

organizations have criticized that Syrian reugees are accepted in Turkey under tempo

rary protection and only their undamental needs are met; they are not subjected to

individual applications which are required or other reugees and the UNCHR has not

resettled Syrian reugees in a third country.51


47. See http://www2.ohchr.org/english/law/cmw.htm, Last Access: 08.12.2012.

48. http://www.unhcr.org/cgibin/texis/vtx/page?page=49e48e0a7&submit=GO, Last Access: 08.12.2012.

49. Press Release by the Prime Ministry Disaster and Emergency Management Presidency, http://www.aad.gov.tr/TR/HaberDetay.aspx?ID=12&IcerikID=857,

50. Ban KiMoon: Suriye konusunda uluslararas camia ve BM birlikte almal, Zaman, 07.12.2012.

51. Press Release by Coordination o Reugee Rights, http://www.multeci.org.tr/?p=771, Last Access: 08.12.2012.

Although Turkeyratied the 1951

convention relatingto the status o

reugees in 1961and its 1967

protocol in 1968, ithas not removedits geographical

objections to theConvention.


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T U R K E Y I N 2 0 1 2 :


25

Although the Coast Guard has taken strict measures, reugees rom Arica, the Middle

East, and Asia still try to illegally cross the Aegean Sea in order to enter Greece rom

Turkey.

Hate Crimes

One o the most signicant problems in Turkey is hate speech and hate crimes caused

by longstanding polarization and discrimination policies. Intolerance and discrimina

tion against dierent ethnic and religious groups and disadvantaged groups in recent

years have given rise to various hate crimes. These crimes have not been punished

within the scope o hate crimes; on the contrary, they sparked debates on impunity.

Unortunately the government has not introduced any hate crime regulations in 2012.

Nevertheless, Parliament worked on various drat laws relating to the issue. Universities and civil society organizations drated multiple reports and worked to include hate

crimes in legislation.

Particularly the events in the wake o the release o the movie titled Innocence of Mus-

limswhich provoked numerous protests around the world on the grounds that it

insults Islamic values and Muslimsand debates on Islamophobia caused decision

makers in Turkey to ocus on hate crimes. Parliament is expected to drat new regula

tions on the issue in 2013. It is imperative that decisionmakers put this issue on their

agenda and drat a comprehensive regulation without delay.

CONCLUSIONIn 2012 the government introduced numerous changes and established new mecha

nisms in order to strengthen the constitutional state, resolve judiciary issues, protect

and improve human rights and nally strengthen democracy. Some o the new regu

lations and institutions cherished hopes; however, people were more cautious about

some o the laws enacted in order to lighten the burden o some public institutions or

the establishment o some o the new institutions. The number o the judiciary cases

pending beore the court signicantly declined and excessive population density o

prisoners relatively decreased. Nevertheless, the judicial reorm is still needed. Laws

such as the law on mediation in legal disputes, the law on the institution o the om

budsman and the law on the human rights institution in Turkey enabled the resolu

tion o disputes without being submitted to the court and cherished hopes o a more

ecient supervision o public administration in terms o human rights. However, ap

pointments to these institutions and work pace o those who have been appointed

provoked serious discussions.

Regional courts o justice and judicial police oces were not established in 2012; how

ever, new provisions allowed access by individuals to the Constitutional Court as o

September 23, 2012. Nevertheless, it is a signicant problem that individual access islimited to the rights only guaranteed under the constitution and the European Con

vention on Human Rights.

Intolerance anddiscriminationagainst dierentethnic andreligious groupsand disadvantagedgroups in recentyears have givenrise to various hatecrimes.


26/28

S E T A


26

The government could not meet the schedule and complete the constitutionmaking

process at the end o the year. Nevertheless, this process has been considered as a sig

nicant experience and the society has never given up hope o the new constitution.

SpeciallyAuthorized courts were abolished but the state did not give up the idea o

judicial institutions with extraordinary authorities which are against the rule o law and

air trial. Regional courts or terrorrelated cases replaced these courts.

Cases brought against military coups and interventions such as 12 September coup

and 28 February postmodern coup and against illegal organizations such as Er

genekon, Sledgehammer continued in 2012. But the judiciary ailed to dismiss specu

lations about these cases including speculations about long detention terms. Similarly,

the government couldnt carry out eective investigations o the incidents in whichsecurity personnel in these illegal organizations are guilty or negligent. Given devel

opments such as Uludere incident and explosion at an ammunition storage acility in

Ayonkarahisar, impunity o security personnel remains a serious concern.

One o the positive developments o 2012 was the report published by the TBMM

Coup and Memorandum Investigation Commission. There have also been signicant

improvements in Kurdish issue, reedom o expression, reedom o religion, reedom

o association and assembly, prisons, womens rights, childrens rights, torture and

maltreatment, rights o the disabled, minorities and reugees among others. Notwith

standing there are still serious unresolved problems. In 2013 ramework laws pertain

ing to discrimination, hate speech and hate crimes which dene abovecited notions in

line with international standards should be enacted and deterrent sanctions or these

kinds o crimes should be imposed.

The governmentcould not meet

the scheduleand complete

the constitutionmaking process at

the end o the year.


27/28


28/28

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P h : + 9 0 3 1 2 . 5 5 1 2 1 0 0 | F a x : + 9 0 3 1 2 . 5 5 1 2 1 9 0w w w . s et av. or g | in o@ s et av. or g

S E TA | W a s h i n gt o n D . C . O f f i c e

1 0 2 5 C o n n e c t i c u t A v e n u e , N . W . , S u i t e 1 1 0 6W a s h i n g t o n, D . C . , 2 0 0 3 6

P h : 2 0 2 2 2 3 9 8 8 5 | F a x : 2 0 2 2 2 3 6 0 9 9t d | i @ t d

In 2012 the government introduced numerous changes and established newmechanisms in order to reinorce the constitutional state, resolve judiciaryissues, protect and improve human rights and nally strengthen democracy.Some o the new regulations and institutions cherished hopes; however, people were more cautious about some o the laws enacted in order to lightenthe burden o some public institutions or the establishment o some o thenew institutions. The number o the judiciary cases pending beore the courtsignicantly declined and excessive population density o prisoners relativelydecreased. Nevertheless, the reorm in the judiciary is still needed. Laws suchas the law on mediation in legal disputes, the law on the institution o the

ombudsman and the law on the human rights institution in Turkey enabledthe resolution o disputes without being submitted to the court and cherished hopes o a more ecient supervision o public administration in termso human rights. However, appointments to these institutions and work paceo those who have been appointed provoked serious discussions.

Regional courts o justice and judicial police oces were not established in2012; however, new provisions allowed access by individuals to the Constitutional Court as o September 23, 2012. The government could not meet theschedule and complete the constitutionmaking process at the end o theyear. Nevertheless, this process has been considered as a signicant experience and the society has never given up hope o a new constitution. Givendevelopments such as the Uludere incident and explosion at an ammunitionstorage acility in Ayonkarahisar, impunity o security personnel remains a

serious concern.There have been signicant improvements in the Kurdish issue, reedom oexpression, reedom o religion, reedom o association and assembly, prisons, womens rights, childrens rights, torture and maltreatment, rights o thedisabled, minorities and reugees among others. Notwithstanding there arestill serious unresolved problems. In 2013 ramework laws pertaining to discrimination, hate speech and hate crimes which dene abovecited notionsin line with international standards should be enacted and deterrent sanctions or these kinds o crimes should be imposed.

YILMAZ ENSAROLU, Director, Law and Human Rights, SETA FoundationYAVUZ GTRK, Research Assistant, SETA FoundationHSEYN KIRMIZI, Research Assistant, SETA Foundation

CEM DURAN UZUN, Researcher, SETA Foundation

Documents

Turkey in 2012 Law and Human Rights