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EUROPEAN COMMISSION
Brussels, 9 November 2010
SEC(2010) 1327
COMMISSION STAFF WORKING DOCUMENT
TURKEY 2010 PROGRESS REPORT
accompanying the
COMMUNICATION FROM THE COMMISSION
TO THE EUROPEAN PARLIAMENT AND THE COUNCIL
Enlargement Strategy and Main Challenges 2010-2011
EN
{COM(2010) 660}
EN EN
TABLE OF CONTENTS
1. Introduction……………………………………………………..Error: Reference source not found
1.1. Preface…………………………………………………………….Error: Reference source not found
1.2. Context……………………………………………………………Error: Reference source not found
1.3. Relations between the EU and Turkey…………………Error: Reference source not found
2. Political criteria………………………………………………..Error: Reference source not found
2.1. Democracy and the rule of law…………………………..Error: Reference source not found
2.2. Human rights and the protection of minorities………Error: Reference source not found
2.3. Regional issues and international obligations……….Error: Reference source not found
3. Economic criteria……………………………………………..Error: Reference source not found
3.1. The existence of a functioning market economy…..Error: Reference source not found
3.2. The capacity to cope with competitive pressure and market forces within the Union
……………………………………………………………………….Error: Reference source not found
4. Ability to assume the obligations of membership….Error: Reference source not found
4.1. Chapter 1: Free movement of goods……………………Error: Reference source not found
4.2. Chapter 2: Freedom of movement for workers……..Error: Reference source not found
4.3. Chapter 3: Right of establishment and freedom to provide services. . .Error: Reference
source not found
4.4. Chapter 4: Free movement of capital…………………..Error: Reference source not found
4.5. Chapter 5: Public procurement……………………………Error: Reference source not found
4.6. Chapter 6: Company law……………………………………Error: Reference source not found
4.7. Chapter 7: Intellectual property law…………………….Error: Reference source not found
4.8. Chapter 8: Competition policy……………………………Error: Reference source not found
4.9. Chapter 9: Financial services……………………………..Error: Reference source not found
4.10. Chapter 10: Information society and media………….Error: Reference source not found
4.11. Chapter 11: Agriculture……………………………………..Error: Reference source not found
4.12. Chapter 12: Food safety, veterinary and phytosanitary policy.Error: Reference source
not found
4.13. Chapter 13: Fisheries…………………………………………Error: Reference source not found
4.14. Chapter 14: Transport policy………………………………Error: Reference source not found
4.15. Chapter 15: Energy……………………………………………Error: Reference source not found
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4.16. Chapter 16: Taxation…………………………………………Error: Reference source not found
4.17. Chapter 17: Economic and monetary union………….Error: Reference source not found
4.18. Chapter 18: Statistics…………………………………………Error: Reference source not found
4.19. Chapter 19: Social policy and employment………….Error: Reference source not found
4.20. Chapter 20: Enterprise and industrial policy…………Error: Reference source not found
4.21. Chapter 21: Trans-European networks…………………Error: Reference source not found
4.22. Chapter 22: Regional policy and coordination of structural instruments…………..Error:
Reference source not found
4.23. Chapter 23: Judiciary and fundamental rights……….Error: Reference source not found
4.24. Chapter 24: Justice, freedom and security……………Error: Reference source not found
4.25. Chapter 25: Science and research………………………..Error: Reference source not found
4.26. Chapter 26: Education and culture………………………Error: Reference source not found
4.27. Chapter 27: Environment…………………………………..Error: Reference source not found
4.28. Chapter 28: Consumer and health protection………..Error: Reference source not found
4.29. Chapter 29: Customs Union……………………………….Error: Reference source not found
4.30. Chapter 30: External relations…………………………….Error: Reference source not found
4.31. Chapter 31: Foreign, security and defence policy….Error: Reference source not found
4.32. Chapter 32: Financial control……………………………..Error: Reference source not found
4.33. Chapter 33: Financial and budgetary provisions……Error: Reference source not found
Statistical Annex……………………………………………………………Error: Reference source not found
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COMMISSION STAFF WORKING DOCUMENT
2010 Progress Report
1. INTRODUCTION
1.1. Preface
Following the conclusions of the Luxembourg European Council in December 1997, the
Commission has reported regularly to the Council and the Parliament.
This report on progress made by Turkey in preparing for EU membership largely follows the
same structure as in previous years. The report:
– briefly describes the relations between Turkey and the Union;
– analyses the situation in Turkey in terms of the political criteria for membership;
– analyses the situation in Turkey on the basis of the economic criteria for membership;
– reviews Turkey’s capacity to assume the obligations of membership, that is, the acquis
expressed in the Treaties, the secondary legislation, and the policies of the Union.
The period covered by this report is from early October 2009 to October 2010. Progress is
measured on the basis of decisions taken, legislation adopted and measures implemented. As a
rule, legislation or measures which are under preparation or awaiting Parliamentary approval
have not been taken into account. This approach ensures equal treatment across all reports and
permits an objective assessment.
The report is based on information gathered and analysed by the Commission. In addition,
many sources have been used, including contributions from the government of Turkey, the
EU Member States, European Parliament reports1, and information from various international
and non-governmental organisations.
The Commission draws detailed conclusions regarding Turkey in its separate communication
on enlargement2, based on the technical analysis contained in this report.
1.2. Context
The Helsinki European Council of December 1999 granted the status of candidate country to
Turkey. Accession negotiations with Turkey were opened in October 2005.
The Association Agreement between Turkey and the then EEC was signed in 1963 and
entered in force in December 1964. Turkey and the EU formed a customs union in 1995.
1 The rapporteur for Turkey is Mrs. Oomen-Ruijten.
2 Enlargement Strategy and Main Challenges 2010). COM (2010) 660 of 09.11.2010
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1.3. Relations between the EU and Turkey
Accession negotiations with Turkey continued. During the preparatory analytical phase the
level of preparedness to start negotiations on individual chapters has been assessed on the
basis of screening reports. Of a total of 33 screening reports, one has still to be delivered by
the Commission to the Council whilst nine are being discussed in the Council.
So far, negotiations have been opened on thirteen chapters (Science and research, Enterprise
and industry, Statistics, Financial Control, Trans-European Networks, Consumer and health
protection, Intellectual property law, Company law, Information society and media, Free
movement of capital, Taxation, Environment and Food safety, veterinary and phytosanitary
policy) one of which (Science and research) was provisionally closed. The December 2006
Council decision3 remains in force.
The enhanced political dialogue between the EU and Turkey has continued. Political dialogue
meetings were held at ministerial level on 26 November 2009 and 13 July 2010. There was
one political dialogue meeting at political director level on 10 February 2010. These meetings
focused on the main challenges faced by Turkey in terms of the Copenhagen political criteria
and reviewed progress being made towards fulfilment of Accession Partnership priorities.
Foreign policy issues related to regional areas of common interest to the EU and Turkey, such
as Iraq, Iran, the Middle East and the Caucasus, were also regularly discussed. Economic
dialogue took place in a bilateral meeting with the Commission and Turkish senior officials in
February 2010. In addition, the multilateral economic dialogue between the Commission, EU
Member States and Candidate Countries in the context of the pre-accession fiscal surveillance
continued, including a meeting at Ministerial level in May in Brussels. Moreover, a number of
high-level visits from Turkey to the European institutions took place during the reporting
period.
The EU-Turkey Customs Union continues to contribute to the enhancement of EU-Turkey
bilateral trade, which amounted to €80 billion in 2009. Turkey is the EU’s seventh biggest
trading partner while the EU is the biggest trade partner of Turkey. Almost half of Turkey’s
total trade is with the EU while more than two thirds of FDI in Turkey come from the EU.
However, Turkey maintained and introduced legislation and restrictions that are in violation
of its commitments under the Customs Union. A number of Turkey’s commitments on
removing technical barriers to trade such as conformity assessments checks, import and
export licensing requirements, restrictions on import of goods from third countries in free
circulation in the EU, State aid, enforcement of intellectual property rights, requirements for
the registration of new pharmaceutical products and tax discriminatory treatment remain
unfulfilled. No progress can be reported concerning Turkey’s longstanding ban on imports of
live bovine animals, beef meat and other animal products. Turkey needs to fully implement
the Customs Union and to remove a large number of obstacles affecting EU products that are
in free circulation. The EU urged Turkey to remove all remaining restrictions on the free
movement of goods, including restrictions on means of transport regarding Cyprus, and to
fully implement the Customs Union.
The EU provides guidance to the authorities on reform priorities through the Accession
Partnership, adopted in February 2008. Progress on these reform priorities is encouraged and
3 The decision sets out that negotiations will not be opened on eight chapters relevant to Turkey’s
restrictions regarding the Republic of Cyprus and no chapter will be provisionally closed until the
Commission confirms that Turkey has fully implemented the Additional Protocol to the Association
Agreement.
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monitored through the bodies set up under the Association Agreement. The Association
Committee met on 27 March 2010, the Association Council on 19 May 2010. Eight sector
sub-committees have been held since November 2009.
As regards financial assistance, some €654 million have been earmarked for Turkey from the
Instrument for Pre-accession Assistance (IPA) in 2010. The revised Multi-Annual Indicative
Planning Document 2011-2013, which provides the strategic multi-annual framework for all
programmes at national level (covering all five IPA components), has been drafted based on
input from the Turkish institutions and will be presented to the IPA Management Committee
in the beginning of 2011. Support will focus on priority areas such as, fundamental rights and
the rule of law, public administration reform, competitiveness, environment, transport,
energy, social development and agriculture and rural development. In addition, Turkey is
benefiting from support for cross-border cooperation and a series of regional and horizontal
programmes under IPA.
EU financial support has been provided to civil society development under the Civil Society
Facility, in particular to enhance civil society organisationsｴ capacities. Moreover, technical
assistance was provided to the Turkish administration promoting good practices on support of
active citizenship. In 2010 funding was also provided to encourage a civil society dialogue
between Turkey and the EU in the areas of political criteria and media. In addition, Turkey’s
participation in EU programmes and agencies has been co-financed and projects in areas such
as media, youth, academic institutions, local authorities, cultural organisations/centres and
civil society organisations have been supported.
Assistance under IPA is implemented through decentralised management, meaning that
assistance is managed by the Turkish authorities as a result of an accreditation process carried
out by the Commission that was completed for IPA components I-IV in 2009. In 2010 the
main focus has been to start implementation under these components. Turkey needs to
strengthen its capacity to absorb funds, achieve results and implement in a timely manner
components I-IV. Moreover, preparations for the conferral of management responsibility
under the rural development component (V) need to be completed. The supervision by the
National Authorising Officer needs to address system weaknesses, including monitoring and
control, and further improve the quality and efficiency of the project and programme cycles.
2. POLITICAL CRITERIA
This section examines progress made by Turkey towards meeting the Copenhagen political
criteria, which require stability of institutions guaranteeing democracy, the rule of law, human
rights and respect for and protection of minorities. It also monitors compliance with
international obligations, regional cooperation and good neighbourly relations with
enlargement countries and Member States.
2.1. Democracy and the rule of law
The domestic political agenda has been dominated by the constitutional reform package, the
government’s democratic opening to address notably the Kurdish issue and the widening
investigations into alleged coup plans. A confrontational political climate prevailed, marked
by lack of dialogue and spirit of compromise between the main political parties and the
government and strained relations between key political institutions.
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Further judicial investigations were opened into alleged coup plans prepared by military
officers. In July, a criminal court in Istanbul accepted the indictment against 196 suspects
including 19 retired and 28 serving generals and admirals for establishing a structure outside
the military hierarchy and attempting to overthrow the government and constitutional order.
The coup plan, referred to as ‘Sledgehammer’, was allegedly prepared in 2003 under the
auspices of the First Army. Pending the start of the trial on 16 December 2010 all defendants
are free.
The trial against the alleged criminal network Ergenekon is continuing and investigations
have been widened. A total of 270 people, including 116 military officers and 6 journalists,
were charged with trying to overthrow the government and to instigate armed riots under
seven separate indictments. The case concerning the 2006 attack on the Council of State,
which left a senior judge dead, was merged with the Ergenekon case. A coup plan, referred to
as the ‘cage plan’, dated March 2009, was seized by investigators from Ergenekon suspects.
The ‘cage plan’ allegedly aimed at destabilising the country by killing members of non-
Muslim minorities, Former commanders of the air force, navy and army testified in the case
and, for the first time, a full general on active duty, the commander of the Third Army, was
summoned to testify as a member of the Ergenekon network in Erzincan. The investigation
into the coup plan, referred to as the ‘action plan against reactionarism’ begun in 2009
continued.
The time lapse between arrests and the presentation of indictments to the court in these
investigations fuelled concerns about effective judicial guarantees for all suspects. The length
of pre-trial detention raises concern.
In December, the Constitutional Court (CC) ruled unanimously to dissolve the Democratic
Society Party (DTP) and to ban 37 members from party politics for five years, including two
Members of Parliament who thereby lost their parliamentary seats. The ruling was a serious
setback to the government’s efforts at democratic opening. Under Articles 68 and 69 of the
Constitution and the relevant provisions of the Law on political parties, the party was
sentenced as a ‘focus of activities against the indivisible integrity of the State’. Former DTP
Members of Parliament joined the new Peace and Democracy Party (BDP) and created a new
parliamentary group under the BDP.
Overall, the investigation into the alleged criminal network Ergenekon and the probe into
several other coup plans remain an opportunity for Turkey to strengthen confidence in the
proper functioning of its democratic institutions and the rule of law. However, there are
concerns as regards judicial guarantees for all suspects. Turkey still needs to align its
legislation as regards procedure and grounds for closure of political parties with European
standards.
Constitution
The government put forward a number of amendments to the Constitution which were
adopted by parliament in May and approved in a referendum in September with a majority of
58% of the votes and high voter turnout (73%). The key provisions of the package change the
composition of the Constitutional Court and of the High Council of Judges and Prosecutors,
restrict the authority of military courts, allow appeals against expulsion decisions by the
Supreme Military Council to be brought before civilian courts, establish a constitutional base
for the Ombudsman service, introduce the right to collective bargaining for public servants
and allow positive discrimination measures in favour of women, children and the elderly.
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The government established an action plan on legislation necessary for the implementation of
the constitutional amendments, and indicated its intention to consult stakeholders.
Consultations are also ongoing with the Venice Commission of the Council of Europe for
those constitutional amendments regarding the judiciary.
However, one of the key provisions originally included in the package, which would have
made closure of political parties more difficult, was dropped when it failed to secure sufficient
votes in parliament.
The drafting and adoption of the constitutional reforms was not preceded by a consultation
process involving political parties and civil society.
The main opposition Republican People’s Party (CHP) lodged a petition before the
Constitutional Court to annul the entire package. The Court ruled against the annulment
request but amended two provisions relating to the process for appointing members of the
Constitutional Court and of the High Council of Judges and Prosecutors.
Overall, the constitutional amendments are a step in the right direction. They address a
number of priorities of the Accession Partnership in the area of the judiciary, fundamental
rights and public administration. However, broad public consultation involving all political
parties and civil society, with their full engagement, is needed to strengthen support for
constitutional reform. The implementation of the amended constitutional provisions through
legislation, in line with European standards, is key.
Parliament
The confrontational political climate between the main political parties continued to slow
down work on political reforms. The main opposition CHP party elected a new party leader in
May. Apart from the Law amending the Constitution, parliament passed a limited number of
laws covering areas related to the Copenhagen political criteria.
In October, an amendment to the Law on the election of parliamentarians was adopted.
Accordingly, parliamentary elections will be held every four years instead of every five, in
line with an amendment to the Constitution adopted earlier in the year.
In March, the Law on elections and electoral rolls was amended to allow use of languages
other than Turkish for oral and written publicity material during election campaigns. Further
changes to the law aimed at ensuring transparency concerning the income and expenses of
political parties and candidates during campaigns.
No changes were made to the electoral system. The 10% of the national vote required for
representation in parliament, which is the highest threshold in any Council of Europe member
state, remains.
The scope of parliamentary immunities continues to raise concerns. It is too wide in cases of
corruption but at the same time it does not adequately protect the expression of non-violent
opinions. The majority of the DTP/BDP Members of Parliament have been taken to court,
based on an interpretation of Article 14 of the Constitution in favour of restriction of
immunities when crimes against the ‘integrity of the State’ are concerned (see the chapter on
Anti-corruption policy).
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No progress has been made on improving parliament’s rules of procedure. Adoption of the
draft finalised in February 2009 by the Consensus Committee on Rules of Procedure is still
pending, due to lack of consensus between the political parties.
Concerns about the administrative capacity of Turkey’s parliament persist in several fields,
including executive-legislative relations and parliamentary oversight and scrutiny. The
Turkish Grand National Assembly plays a limited role in the formulation and implementation
of Turkey’s accession strategy.
President
The President continued to play an active conciliatory role promoting dialogue between the
main political parties and endeavouring to ensure the sound operation of state bodies.
However, there were concerns expressed concerning the President’s appointments to certain
key State institutions, in particular the judiciary and universities. The President stated his
commitment to addressing the Kurdish issues and kept up his active role in foreign policy.
Government
In January, a new strategy for Turkey’s accession to the EU was prepared with the aim of
speeding up the 3accession negotiations and increasing public awareness and support for
accession. In this context, on 15 March the Turkish Council of Ministers adopted the 2010-
2011 action plan outlining legislation to be enacted and studies to be carried out on each
chapter of the negotiations.
In February, the Reform Monitoring Group (RMG) – made up of the Minister of Foreign
Affairs, the State Minister for EU Affairs and Chief Negotiator and the Ministers of Justice
and of the Interior – met under the chairmanship of the Prime Minister for the first time since
the group was established in 2003, stating the government’s commitment to the EU accession
process. The RMG continued to meet regularly in different parts of the country underlining
the determination of the government to involve the people more closely in the accession
process.
Some of the RMG’s recommendations have been put into practice. A sub-committee on
political affairs, made up of high-level civil servants, has been established to speed up work
on political reforms. A deputy governor in each province has been designated as the EU
contact point. Key reforms relevant to the accession process were included in the package of
amendments to the Constitution.
The State Minister for EU Affairs and Chief Negotiator further streamlined inter-ministerial
coordination for the accession negotiations. The minister frequently met civil society
stakeholders to promote their participation in the accession process.
However, further changes to the legislation, in particular as regards protection of fundamental
rights, is necessary. The special legislative procedure for EU reforms in parliament has not
been adopted, in order to expedite its work related to Turkey’s accession.
Regarding local government, a delegation from the Council of Europe Congress of Local
Authorities visited Turkey in May to follow up on recommendations made in 2007.
Transparency, accountability and participatory mechanisms need to be strengthened,
especially in local government to which further resources and responsibilities have been
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transferred. Strategic plans, performance measures, establishing financial control systems,
project management, crisis management, environmental management and information
technology management remain to be established at local level.
Overall, after a significant slowdown in the reform agenda over the last few years, the
government put forward a number of key constitutional reforms and specific measures, albeit
of limited scope. The strained relations between key state bodies are continuing to have a
negative impact on the smooth functioning of political institutions.
Public administration
An inventory of public services was carried out by the government. Specific public service
standards for procedures, quality, eligibility criteria and complaints were developed. Work on
providing basic public services on-line (e-government) has continued with a view to
improving their quality and to increasing transparency and accountability.
The constitutional reform provides the basis for establishment of an Ombudsman institution.
The amendments to the Constitution introduced protection of personal data and access to
information as constitutional rights.
However, no progress has been made on reforming the civil service system, in particular to
reduce red tape, to develop regulatory impact assessments (RIA) and to ensure transparency
and merit-based advancement and appointments, particularly to high-level positions. Also,
there is a lack of consultation by civil service of relevant stakeholders in the preparation of
policies and legislation. Enforcement of common standards and uniform implementation of
the rules across the civil service remain to be achieved.
With regard to implementation of the public financial management and control (PFMC) law,
an effective internal audit system, in the form of autonomous units within all State
institutions, is not yet operational.
Clear rules for establishing a business company or a corporation to deliver public services by
municipalities remain to be introduced. Such rules will reduce opportunities for partisan
employment and public funding without effective control.
Overall, some progress has been made, in particular towards establishing an Ombudsman
institution, protection of personal data and access to information. Further efforts are needed,
in particular on reforming the civil service and implementing the PFMC law. Increased
political support to the public administration reform is necessary.
Civilian oversight of security forces
In February, the government annulled the secret protocol on Security, Public Order and
Assistance Units (commonly called EMASYA), which allowed military operations to be
carried out without the consent of civilian authorities. Implementation of the annulment
decision remains to be completed.
In February, parliament adopted a law establishing an Under-secretariat for Public Order and
Security under the Ministry of the Interior to develop policies on counter-terrorism and to
serve as secretariat for the Counter-Terrorism Coordination Board. The law also established
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an Intelligence Assessment Centre to strengthen intelligence-sharing between security
institutions.
The constitutional reform limits the jurisdiction of military courts to ‘military service and
military duties’. Under the new system, crimes against state security, the constitutional order
and the functioning of this order will be dealt with by civilian courts.
The amendments to the Constitution opened dismissals of military staff by the Supreme
Military Council to judicial review. The constitutional provision providing immunity for the
perpetrators of the 1980 coup d’騁at was deleted from the Constitution. In addition, the Chief
of General Staff and the commanders of the army, air force, navy and gendarmerie will be
tried before a high tribunal for any offences committed in the course of their official duties.
Progress has been made as regards internal audits, introduced by the public financial
management and control law, in security institutions following the adoption of a regulation on
the internal audit and management of movable properties of the armed forces, the national
intelligence agency and the national policy, in July. The Court of Auditors has launched the
planning phase for auditing the extra-budgetary Defence Industry Support Fund (SSDF).
The case against two non-commissioned officers and an informant from the terrorist group
PKK concerning the bombing of a bookstore in Semdinli4 is still pending. The case is with a
criminal court in Hakkari further to the decision of the Van military court that the defendants
should be charged for homicide and that there is no evidence to prove that they committed the
offence of “Impairing the unity of the state” regulated in article 302 of the Turkish criminal
code. The military court set the accused free pending trial.
Implementation of the regulation on the powers of the police and the gendarmerie in urban
and rural areas has continued. Residential areas in 31 towns with a combined population of
about one million civilians were transferred from the Gendarmerie to the police, which is
under civilian control. However, there has been no progress on civilian control over the
gendarmerie’s law enforcement activities.
The trial of a serving gendarmerie colonel who was allegedly involved in extra-judicial
killings in the south-east in the 1990s continued. The proper conduct of this trial is critical for
the fight against impunity.
There is a decrease in the number of incidents where the armed forces exerted formal and
informal influence on political issues beyond their remit. Nonetheless, on some occasions, the
Chief of General Staff made comments about ongoing court cases and investigations. A
number of criminal complaints were lodged by citizens and NGOs about such statements.
However, there was no judicial follow-up. The selective accreditation by the military of
certain media has continued.
No change has been made to the Turkish Armed Forces Internal Service Law, which defines
the duties of the military and contains an article leaving the military wide room for manoeuvre
to intervene into politics. The Law on the National Security Council provides a broad
definition of ‘security’, which, depending on interpretation, could cover almost any policy
field.
4 The defendants are accused of the November 2005 bombing that killed one person and injured others in
the town of Semdinli in Southeast Turkey.
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No progress has been made concerning parliamentary oversight of the defence budget or on
audit of the properties of the armed forces by the Court of Auditors. The Law on the Court of
Auditors was adopted by the Planning and Budget Committee in May and is awaiting
approval by the plenary.
Overall, progress has been made on civilian oversight of security forces. The jurisdiction of
military courts was limited, the decisions of the Supreme Military Council were opened to
judicial review and arrangements were made for high-ranking officers to be tried by civilian
courts. However, senior members of the armed forces have made a number of statements
going beyond their remit, in particular on judicial issues. No progress was made on
parliamentary oversight over extra-budgetary military funds.
Judicial system
Progress has been made on reforming the judiciary. Implementation of the 2009 judicial
reform strategy has continued. Some of the central pillars of the strategy were put in place by
the amendments to the Constitution.
As regards the independence of the judiciary, the constitutional amendments increased the
number of full members of the High Council of Judges and Prosecutors from seven to twentytwo.
In addition to representatives of the Court of Cassation and the Council of State, the new
members include representatives of first instance judges, the Justice Academy, law faculties
and lawyers. This new membership lays the foundation for making the High Council
representative of the judiciary as a whole.
The amendments to the Constitution open to judicial review decisions by the High Council
dismissing members of the judiciary from the profession. This is a move in the direction of
establishing an effective remedy against decisions by the High Council. A Secretariat-General
established under the High Council provides it with professional and secretarial support.
Previously, professional and secretarial support for the High Council was provided by the
Ministry of Justice. The High Council appoints judges and prosecutors to this Secretariat.
This should reduce the opportunities for the executive to interfere with administration of the
Council.
Judicial inspectors responsible for evaluating the performance of judges and prosecutors
henceforth will report to the High Council and no longer to the Ministry of Justice, thus
giving the High Council a basis for carrying out its work without the risk of political
interference. However, the minister is still President of the High Council and the investigative
authority of the High Council is subject to his approval5.
The Semdinli case is still pending. (See the chapter on Civilian oversight of security forces)
The dismissal of the civilian prosecutor previously in charge of the case, together with the
handling of the case to date, has raised questions about the independence of the High
Council6.
5 The draft Law on the High Council of Judges and Prosecutors proposed by the Ministry of Justice
provides that these decisions of the Minister are subject to judicial review.
6 The civilian prosecutor in this case published the indictment in 2006. It included accusations against
high-ranking military commanders. The General Staff criticised the indictment and urged those bearing
constitutional responsibility to take action. The High Council of Judges and Prosecutors took the
dismissal decision in April 2006.
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With regard to impartiality, constitutional provisions allowing military courts to try civilians
have been taken out of the Constitution and new provisions explicitly prohibit such trials.
Cases related to offences against the security of the state, the constitutional order and the
functioning of this order are to be tried before civilian courts. This followed the annulment by
the Constitutional Court, in January 2010, of provisions of the Criminal Procedure Code
allowing civilian courts to try members of the armed forces in cases of organised crime and
crimes against the state, on the basis that these conflicted with the constitutional provisions at
the time. The new provisions for trial of such cases by civilian courts are positive.
Since the adoption of the amendments to the Constitution, the Constitutional Court will be
made up of seventeen members. Ten will be nominated by the President amongst the
candidates nominated by the Court of Cassation, the Council of State, the Military Supreme
Administrative Court, the Military Court of Cassation and the High Education Board, and
four will be elected directly by the President from among senior administrators, lawyers and
rapporteur judges of the Constitutional Court. The Parliament elects three members of the
Constitutional Court from amongst the candidates proposed by the Court of Auditors and the
Bar Associations. There are three voting rounds in Parliament. In the third voting round the
candidates are elected by simple majority. No alternate members are envisaged. The
involvement of the Turkish parliament in the election of Constitutional Court judges brings
Turkish practice closer to that of EU Member States. However, two of the judges are still
military judges. As constitutional jurisprudence in a democratic system is a civilian matter,
the presence of military judges is questionable. In addition, the amended Constitution
provides that judges should be at least forty-five years of age when elected for a nonrenewable
term of twelve years. This implies that military judges might return to the military
justice system when their term in the Constitutional Court expires, which could raise
questions about their impartiality as Constitutional Court judges.
Senior members of the judiciary and of the military have made statements that could put the
impartiality of the judiciary at risk in important cases.
With regard to the efficiency of the judiciary, use of information technology in the judicial
system has accelerated judicial procedures and facilitated third party access to judicial
proceedings. The number of judicial staff continued to increase. On 20 September 2010 there
were a total of 11,394 judges and prosecutors (11,121 judges and prosecutors on 1 May
2009). Progress has been made as regards juvenile justice. (See the chapter on Children’s
rights)
However, the overall number of vacancies for judges and prosecutors remains significant at
3,299 on 20 September 2010 (3,875 on 1 May 2009). The regional courts of appeal are not
operational yet. By law, they should have been in operation by June 2007.
The regional courts of appeal have not been established yet. By law, they should have been in
operation by June 2007.
The arrest of the Chief Public Prosecutor of Erzincan on the grounds of involvement in
alleged organised crime led the High Council of Judges and Prosecutors to revoke the powers
of the specially authorised public prosecutor who ordered the arrest. Senior members of the
judiciary made public statements in support of this decision by the High Council. This
situation created tensions, both within the judiciary and between the High Council and the
ministry, and raised questions about the ability of the judiciary to conduct a fair trial.
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Investigations in some high-profile cases continued to raise concerns. This points to the need
to improve the work of the police and the gendarmerie but, also, the working relationship
between the police and the gendarmerie on the one hand and the judiciary on the other. The
ECtHR in its Chamber judgement of 14 September 2010 on the case of Dink v. Turkey7
considered that the Turkish authorities had not done everything that could reasonably have
been expected of them to prevent Mr Dink’s assassination and that no effective investigation
had been carried out into the failures which occurred in protecting the life of Mr Dink. There
had therefore been a violation of Article 2 (right to life). In addition, the Court found a
violation of Articles 10 (freedom of expression), and 13 (right to an effective remedy) in
conjunction with Article 2. Turkey indicated that it will not appeal the Chamber’s judgement.
There has been no progress on introduction of a mediation system into civil justice.
Reconciliation, introduced into the criminal justice system in 2005, is not used effectively.
Provision of legal aid is inadequate in terms of either its coverage or the quality of services
provided. The implementation of pre-trial detention is not limited to circumstances where it is
strictly necessary in the public interest. This adds to the overcrowding in prisons, where more
than half of the inmates await trial. Judges do not make effective use of the probation system.
There are concerns about the functioning of the Forensic Medicine Institute. In a number of
cases the institute gave conflicting reports on the same case at different times. The backlog of
the institute leads to delays in judicial proceedings.
A Council of State judgment in 2009 pointed to the overlapping responsibilities for provision
of in-service training between the Training Department of the Ministry of Justice and the
Turkish Justice Academy. Pre-service and in-service training both fall under the responsibility
of the Justice Academy.
Overall, there has been progress in the area of the judiciary. The adoption of the amendments
to the Constitution on the composition of the High Council of Judges and Prosecutors as well
as the limitation of the authority of military courts is a positive step. However, the Minister of
Justice still chairs the High Council and has the last word on investigations. Attention needs
to be paid to establishing an effective dialogue with all stakeholders and to implementing
these reforms in accordance with European standards and in an open, transparent and
inclusive way.
Anti-corruption policy
The government adopted a 2010-2014 strategy for enhancing transparency and strengthening
the fight against corruption in February 2010. A ministerial committee8 was established in
December 2009 together with an executive board made up of representatives of public
institutions, labour unions and the Turkish Union of Chambers and Stock Exchanges (TOBB)
to form further anti-corruption strategies and to direct and monitor their implementation.
The strategy aims at developing preventive and repressive measures against corruption and
improving public governance by introducing more transparency, accountability and reliability
in the public administration.
An action plan setting the timetables for adoption and implementation of each measure was
approved by the ministerial committee in April 2010. Effective implementation could
7 Applications no. 2668/07, 6102/08, 30079/08, 7072/09 and 7124/09.
8 The ministerial committee consists of the Deputy Prime Minister and four ministers (Ministry of
Justice, Ministry of Interior, Ministry of Finance, Ministry of Labour and Social Security).
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contribute to changing behaviour of public administration, so that it promotes and protects
integrity and reduces opportunities for corrupt practices. However, participation by civil
society and its role on the executive board and in implementation of the strategy need to be
strengthened.
By June 2010, Turkey had implemented 15 of the 21 recommendations in the 2005 evaluation
reports by the Group of States against Corruption (GRECO). The GRECO report suggests
further efforts, in particular to broaden the representation of the anti-corruption oversight
body, to enhance the independence of the judiciary and, to reform the system of immunities
and to finally establish the Ombudsman institution. The constitutional amendments provide
the basis for progress on enhancing the independence of the judiciary and an Ombudsman
institution.
In December 2009, the Prime Ministerial Inspection Board was appointed as the counterpart
of the European Anti-Fraud Office (OLAF) and was given the task of Anti-Fraud
Coordination Structure (AFCOS) responsible for investigation of irregularities in the context
of financial cooperation between the EU and Turkey. (See Chapter 32 – Financial control)
In February 2010, the Constitutional Court annulled the provisions of the Law on the Council
of Ethics regarding publication of the names of civil servants who violate the code of ethics,
on the grounds that publishing names without a judicial decision would jeopardise the
presumption of innocence. Ethics training has continued and around 7,000 civil servants
working for central and local governments have been trained between October 2009 and
September 2010. In September, the Government adopted a regulation on the code of ethics
with which investigators and auditors should comply while doing their jobs. However, no
progress has been made on extending ethics rules to academics, military personnel and the
judiciary.
No progress has been made on limiting the immunities of Members of Parliament concerning
corruption-related offences.
Further measures are needed to complete the existing legislation and ensure its effective
implementation to increase transparency on the financing of political parties and election
campaigns. More resources are also required in order to better detect illegal practice, in
particular to extend the current monitoring mechanism to election campaign funding of parties
and candidates.
For the first time, a mayor of a metropolitan municipality (Adana) was suspended from
mayoral duties on March 2010 by the Ministry of Interior because of serious corruption
allegations. Administrative and judicial investigations are continuing.
The investigation begun in 2009 into the charity association Deniz Feneri concerning a fraud
case in Germany is continuing. The police made searches on the premises of the association
and at the homes of the suspects. However, no indictment has been submitted to court yet.
The draft law on the Turkish Court of Auditors, which envisages strengthening the Court and
extending its mandate, was adopted by the Planning and Budget Committee of the Parliament
in May and is awaiting approval by the plenary. (See Chapter 23 – Judiciary and fundamental
rights)
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Overall, progress has been made as regards the development of a comprehensive anticorruption
strategy and action plan and of a body to oversee and monitor its implementation,
thus addressing Accession Partnership priorities. However, effective implementation of the
strategy is necessary to reduce corruption which remains prevalent in many areas. Turkey
needs to develop a track record of investigations, indictments, and convictions.
2.2. Human rights and the protection of minorities
Observance of international human rights law
As for ratification of human rights instruments, ratification of the Optional Protocol to the
UN Convention against Torture (OPCAT) is still pending before parliament. Turkey has not
ratified three additional Protocols to the European Convention on Human Rights (ECHR)9.
The number of rulings of the European Court of Human Rights (ECtHR) finding that Turkey
has violated the ECHR continued to increase. During the reporting period the court delivered
a total of 553 judgements finding that Turkey had violated the ECHR. The number of new
applications to the ECtHR went up for the fourth consecutive year. Since October 2009, a
total of 5,728 new applications were made to the ECtHR. The majority of them concern the
right to a fair trial and protection of property rights. As of September 2010, 16,093 cases were
pending before the ECtHR regarding Turkey. The amendment to the Constitution introducing
the right to submit individual applications to the Constitutional Court is an important step to
reduce the number of applications to the ECtHR.
Turkey has abided by the majority of ECtHR rulings, including payment of compensation
totalling €6.1 million in 2009. Amendments to the Law on enforcement of judgments address
shortcomings in the judicial process that were identified in several ECtHR rulings against
Turkey. However, some rulings have not been followed up by Turkey for several years10. The
government’s announcement that it would address these issues was not followed by action.
In the Cyprus v. Turkey case, the issue of missing persons and restrictions on the property
rights of Greek Cypriots living permanently in the northern part of Cyprus remains pending.
At a meeting in September 2010, the Committee of Ministers decided to postpone
examination of these issues until December 2010. In its Grand Chamber Decision of 5 March
2010 on the Demopoulos v. Turkey case the ECtHR concluded that, for the purposes of the
ECHR, remedies available may be regarded as effective and accessible domestic remedies
which have to be exhausted before applications before the ECtHR can be found admissible.
However, the court stressed that this decision was not to be interpreted as requiring applicants
to make use of the Immovable Property Commission procedure. Applicants could choose not
to do so and await a political solution. Since March the number of applications to the
Immovable Property Commission has increased substantially.
Regarding promotion and enforcement of human rights, the government plans the
establishment of several human rights institutions. In particular, the draft law on the
establishment of the Turkish Independent Human Rights Institution was submitted to
9 Protocols 4, 7 and 12.
10 The non-implementation of the Hulki G・eş, Gmen and Slemez judgments has resulted in
deprivation of liberty for the defendants for several years without due process of law. A legislative
amendment is required to remedy this situation. Furthermore, Turkey has not adopted legal measures to
prevent repetitive prosecution and conviction of conscientious objectors. Other issues awaiting
legislative measures by Turkey concern control of the activities of security forces, effective remedies
against abuse, restrictions on freedom of expression and excessive length of pre-trial detention.
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parliament in February 2010. Opinions from NGOs were discussed by the relevant
parliamentary sub-committee. The draft law before parliament needs to be amended to bring it
into line with the UN framework, in particular as regards the independence and functional
autonomy of this new institution. It is important to conduct this process in close consultation
with NGOs.
The constitutional reform provides the basis for establishment of an Ombudsman institution.
Human rights training for public officials, judges, public prosecutors and police officers
continued. In-service and on-the-job training for the gendarmerie includes training on human
rights together with specialist training on techniques for reviewing allegations of human rights
violations.
The Human Rights Investigation Committee of the Parliament published 13 reports. However,
the Committee has been focussing on policy making and the legislative process.
Human rights defenders have continued to face criminal proceedings. Investigations carried
out as part of the fight against terrorism have raised concerns following the arrests of trade
union and human rights activists. The wide definition of terrorism under the Anti-Terror Law
remains a cause for concern (See the chapter on the Situation in the south-east).
Human rights institutions lack resources, independence and impact.
Overall, some progress was made on observance of international human rights law. However,
a number of reforms have been outstanding for several years. Legislation on human rights’
institutions needs to be brought fully in line with UN principles.
Civil and political rights
The government pursued its efforts to ensure compliance with legal safeguards to prevent
torture and ill-treatment. This policy has continued to produce positive results. Training for
health personnel, judges and prosecutors on effective investigation and documentation of
torture and ill-treatment cases continued with a view to implementation of the Istanbul
Protocol11 in Turkey.
The draft Law on the Establishment of a Monitoring Commission on Security Forces was
submitted to the Parliament in October. The draft foresees the establishment of a Supervisory
Commission for the registration and monitoring of disciplinary procedures and measures
against law enforcement officers.
However, disproportionate use of force by law enforcement bodies continued. Reports to
NGOs of disproportionate use of firearms by security forces resulting in death have increased.
Ratification of OPCAT has been pending since 2005. (See the chapter on Observance of
international human rights law)
Law enforcement bodies frequently launch cases against persons who allege torture or illtreatment.
Such legal proceedings may deter complaints. In many instances these cases are
given priority by Turkish courts.
11 Istanbul Protocol: Manual on the effective investigation and documentation of torture and other cruel,
inhuman or degrading treatment or punishment, submitted to the United Nations Commissioner for
Human Rights, 9 August 1999.
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No forensic doctors are recognised by courts, apart from the Forensic Medicine Council,
which is under the Ministry of Justice. Law enforcement officers are sometimes present
during medical examination of prisoners.
As regards the fight against impunity, the case concerning the death in detention of Engin…
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