Turkey became a candidate for E.U. membership in 1999, but the E.U. has said that Turkey must meet its 1993 Copenhagen criteria before membership negotiations can begin in earnest. The criteria require that all applicant states demonstrate "stability of institutions guaranteeing democracy, the rule of law, human rights, and respect for and protection of minorities." Turkey's failure to meet this test in past years has kept its application for membership lagging behind the twelve other applicants. But with the recent enactment of important reforms abolishing the death penalty and recognizing minority language rights, and a new initiative to tackle torture, Turkey hopes to finally clear the hurdle and get the E.U.'s December Copenhagen summit to set a date for membership negotiations to begin.
This backgrounder summarizes Human Rights Watch's assessment of Turkey's human rights performance since the E.U. issued its last regular report in October 2001. Key points Human Rights Watch expects to find in the October 2002 regular report include:
- Recognition of Turkey's abolition of the death penalty.
- Recognition of Turkey's removal of restrictions on broadcasting and education in minority languages, including Kurdish.
- Recognition of steps taken in recent days to implement the recommendation of the European Committee for the Prevention of Torture (CPT) that police should provide all detainees with immediate access to a lawyer.
- Concern about continued restrictions on free expression contained in Turkish law and exacerbated by the Turkish judiciary's failure to adhere to the European Convention on Human Rights.
- Concern about the continued imprisonment of Kurdish former parliamentarians Hatip Dicle, Orhan Dogan, Selim Sadak, and Leyla Zana after what the European Court of Human Rights has determined was an unfair trial.
- Concern about restrictions contained in the Law on Associations and the continued persecution of human rights defenders.
- Concern about the continued crisis in Turkey's F-Type prisons and a call for implementation of CPT-recommended weekly opportunities for prisoners to gather for group activities.
- Concern about the poor progress on return of displaced persons to their homes in southeastern Turkey and endorsement of U.N. and Council of Europe recommendations that an international meeting be called to help reshape the return program in line with international human rights standards, and in particular, the United Nations Guiding Principles on Internal Displacement.
- Concern about the continued restrictions on the rights of refugees and violations of the principle of non-refoulement.
Turkey and the E.U. Accession Process
Turkey became an official candidate for E.U. membership at the E.U.'s 1999 Helsinki summit. In 2000, as with all applicant states, the E.U. drew up an "Accession Partnership" document, detailing the steps it expected Turkey to take in the economic as well as political sphere. In March 2001, Turkey responded with its own "National Program for the European Union Accession Partnership Agreement." Though intended to map out how Turkey would meet E.U. expectations contained in the Accession Partnership document, Turkey's own program substantially watered down those commitments.
For more information on the Accession Partnership for Turkey and Turkey's Accession Program, see Human Rights Watch, "Turkey: Human Rights and the European Union Accession Partnership" (2000) and "Comments on Turkey's National Program for the European Union Accession Partnership Agreement" (2001).
Turkey's aspiration to join the E.U. provided a powerful incentive for reform, but in the first two years, progress was slow, characterized by superficial half-measures that brought about little fundamental change. For Human Rights Watch's assessment of progress as of 2001, see http://www.hrw.org/press/2001/09/turkey0928.htm.
In a potentially significant turnaround, however, the E.U. accession process has over the past year begun to reap real results in the human rights situation, though important tasks remain.
Major strides in 2002
The year since the last E.U. Regular Report on Turkey's progress toward accession has brought more substantial human rights improvement than any since the 1980 coup. Instead of the recurrent tiny grudging steps, we have seen two major strides and the promise of a third: abolition of the death penalty, removal of many constraints on minority language education and broadcasting, and the Ministry of Justice's very recent draft law, which, if passed by parliament and properly implemented, would ensure prompt access to legal counsel for all detainees, an important safeguard against torture.
These changes are the more significant because they suggest a possible transformation of the Turkish state's view of itself and its relationship with the citizens it is supposed to serve.
Many Accession Partnership tasks remain outstanding, however. These include the protection of refugees; thoroughgoing reform of the Law on Associations, which shackles the development of civil society; resolution of the problems in the prison system; and support for the return of the hundreds of thousands of people displaced during the fifteen-year conflict between government security forces and the armed Kurdish Workers' Party (PKK).
But there are two areas in particular where Turkey must act in order to demonstrate that it has conclusively broken with its history of human rights abuses: torture and freedom of expression.
Continuing torture-and an initiative to end it
Turkish police and gendarmes still commonly torture their detainees. Intergovernmental bodies, including the European Committee for the Prevention of Torture (CPT), the U.N. Committee against Torture, and the U.N. Special Rapporteur on Torture, agree that detention without access to a lawyer is the key factor in the persistence of torture in Turkey.
In the Accession Partnership, the E.U. called on Turkey to "undertake all necessary measures to reinforce the fight against torture … and align legal procedures concerning pre-trial detention with the provisions of the European Convention on Human Rights and with the recommendations of the Committee for the Prevention of Torture." (Article 4.1) In its national program, the Turkish government responded with an undertaking to align legal practices with CPT recommendations.
Until now, Turkey has not fulfilled this undertaking. In February 2002, the Turkish parliament passed measures to provide access to a lawyer for those detained on common criminal charges, but left in place provisions authorizing the police to detain those subject to state security court jurisdiction without giving them access to a lawyer for up to two days.
Consequently, torture has continued. In August, Human Rights Watch wrote to the Turkish Justice Minister about thirty-one reports of alleged torture involving fifty-five individuals, including four children and juveniles. The allegations included reports that police had beaten detainees, stripped them naked, sexually assaulted them, hosed them with cold water and subjected them to electric shocks. All the cases were reported to have taken place since the February 2002 reforms were passed.
Although common criminals have a theoretical right to legal counsel from the first moments of detention, in practice this right is usually denied. The persistence in law of detention without access to legal counsel for State Security Court detainees increases the risk of torture for common criminal detainees. Police officers have been known to threaten common criminal detainees, saying that they will add a political element to an alleged offense if the detainee insists on his right to legal counsel. More importantly, the denial of access to legal counsel to one group of detainees works against the establishment of a clear routine for police units to follow in all detentions: immediate contact with the family and legal counsel. Provision of access to a lawyer for this group of detainees is therefore a much-needed step.
In a welcome development, on October 7, the eve of the Regular Report release, Human Rights Watch received a copy of a draft amendment to the penal code, submitted by the Justice Minister for the Prime Minister's signature. The amendment strikes out the provision that delays State Security Court detainees access to legal counsel.
The draft is not yet law, and even a law will not protect detainees if it is not implemented. In order for this proposed reform to have an impact on the E.U.'s December decision, the new government that forms following the November 3 elections must pick up the draft and introduce the legislation as a task of utmost urgency.
Until that time, the present administration will have an opportunity to demonstrate its new-found commitment to end torture by ensuring that police and prosecutors scrupulously observe detainees' existing right of access to legal counsel, such as they are. Permitting state security court detainees access to their lawyer from the first moments of detention would be an even more convincing token of good faith.
The CPT has also recommended that Turkey abolish its practice of blindfolding detainees, but the Turkish authorities have not yet explicitly prohibited this practice. Detainees who have been tortured are very frequently required to sign sheaves of paper while blindfolded, including, apparently, a waiver of their right to legal counsel. When the CPT visited Diyarbakir Police Headquarters in March 2002, it found that over the preceding months hundreds of detainees were recorded as having relinquished their right of access to a lawyer over the preceding months.
In sum, if the draft is followed through with legislation and thorough implementation in the next months, Turkish police stations will no longer be a no-go area for lawyers and the system that has long permitted torture could be effectively broken.
Human Rights Watch expects the 2002 Regular Report to welcome the draft law providing access to legal counsel to all detainees, to urge early legislation and implementation, and to call for improved application of safeguards in the intervening months. The Regular Report should call on the Turkish government to issue a circular or decree prohibiting blindfolding of detainees and ensuring that reports of blindfolding will be investigated and that any officer found guilty of the abuse will be punished.
Continuing violations of freedom of expression
Successive Turkish parliaments have amended the laws that criminalize peaceful expression. Some changes have been notable moves forward, others merely gestures.
This year several Turkish citizens were imprisoned for expressing their non-violent opinions. Particularly at risk were those who expressed trenchant ideas about the roles of religion and ethnicity in politics, or views that courts found "insulting" to state institutions.
Ahmet Ünlü, for example, was imprisoned on a two-and-a-half-year sentence in January this year. His crime was to describe the 1999 earthquake in Western Turkey as a "heavenly warning" to a society that had departed from Islamic principles, commentary deemed impermissible under article 312 of the penal code, which criminalizes "incitement to religious hatred." Tayyar Tas, a Kurdish villager, was arrested in July under article 159 of the criminal code for "insulting" the military by accusing them of burning his village. Many others are threatened with imprisonment on similar charges.
There is recognition at high levels of government that the limits imposed on free expression are unacceptable. Ahmet Necdet Sezer, a judge and former president of the constitutional court, was elected president of the Turkish Republic in May 2000 after making a series of bold speeches calling for the legal system to be "cleansed" of its repressive features. In his inaugural speech, he continued this theme: "We cannot meet the demands of a modern society without abandoning the structure and regulations redolent of a police state."
Yet, it appears unlikely that parliament will in the near future succeed in extensive reform of the criminal code and the hundreds of other articles of legislation that inhibit free expression. Moves to do so have been branded by powerful opposition within parliament as a compromise with "separatism," "religious extremism" or a near-treasonable betrayal of the state. For the time being, this leaves the task with the judiciary, which has a poor record on protection of free expression and has rarely demonstrated convincing independence.
The courts are not necessarily bound by Turkey's restrictive domestic legislation. Article 90 of the Turkish Constitution provides that international treaties take precedence over Turkish domestic law. Judges could therefore reflect the European Human Rights Convention in their judgments, incorporating the jurisprudence of the European Court of Human Rights. Were the courts to do so, it would be a powerful deterrent to prosecutors contemplating bringing politically motivated cases involving freedom of expression.
Human Rights Watch expects the 2002 Regular Report to refer clearly to the outstanding shortcomings regarding freedom of expression in Turkish legislation and judicial decisions, and to urge the judiciary to incorporate the European Convention on Human Rights and ECHR jurisprudence in its judgments.
Other priority human rights issues
The E.U.'s regular report is expected to survey a number of other key issues in Turkey's human rights record.
Long-term arbitrary detention. The report should criticize the continued long-term arbitrary detention of persons held for the peaceful expression of their political beliefs, specifically Kurdish former deputies Hatip Dicle, Orhan Dogan, Selim Sadak, and Leyla Zana. Turkey has ignored the decision of the European Court of Human Rights (ECHR) that they were convicted following an unfair trial. The July reform gave those who win such a judgment from the ECHR the right to a new trial, but with the former parliamentarians clearly in mind, the Turkish parliament restricted this right to those who gain ECHR judgments in the future, denying this remedy to past plaintiffs, including the jailed former parliamentarians.
Restrictions on freedom of association. Human Rights Watch expects the report to highlight continued problems with freedom of association and, in particular, unlawful restrictions and the use of force against human rights defenders. Throughout the past year, police and local governors have continued to prohibit or intervene to disperse meetings and peaceful demonstrations by civil society organizations that criticize the state. Legislative reform enacted in August included small amendments to the Law on Associations, but it remains an extremely cumbersome and restrictive law, often used by the authorities to curb civil society activities.
Prison conditions. The report should also note the continued stalemate in Turkey's high security F-Type prisons, where state security court prisoners are held in one or three-person cells with limited opportunities for out-of-cell association and activities. A hunger strike in protest of the conditions has claimed sixty-four lives so far. The Justice Ministry this year belatedly announced a program of out-of-cell activities and weekly opportunities for association, but limited implementation has left most prisoners in potentially harmful isolation.
Plight of internally displaced persons. The E.U. report should record the government's continued failure to facilitate the return of at least 200,000 villagers who were displaced by the conflict in the southeast. Though active hostilities ceased in 1999, few villagers have ventured home. Government statistics on return are contradictory and unreliable. Human Rights Watch investigations indicate that a substantial proportion of those who have returned were communities of government-supported paramilitary village guards. The majority of the displaced continue to live in very difficult circumstances of overcrowding and poverty in towns and cities throughout the country. U.N. Special Representative of the Secretary General on Internally Displaced Persons Francis Deng visited Turkey this year and recommended an international meeting to develop a return plan that meets international standards.
Treatment of refugees. The E.U. report should also critique Turkey's treatment of refugees. Contrary to E.U. demands, Turkey has failed to lift its geographical reservation on the 1951 Convention Relating to the Status of Refugees, under which it does not recognize non-European refugees. Its procedures for protecting such refugees are substandard and raise serious concerns that refugees are frequently returned by Turkey to countries where their life or freedom is threatened.
The foregoing is not an exhaustive survey of E.U. Accession Partnership expectations from Turkey with regard to human rights. In fact, there are a number of issues not mentioned in the Accession Partnership that the European Commission persistently overlooks in its yearly report on progress: the thousands of young women denied higher education because they choose to wear the headscarf for religious reasons, for example, and the right of conscientious objection to military service.
In view of the very strong opposition to change shown by elements of Turkey's leadership, the progress that Turkey has made during 2002 deserves considerable credit. In addition to the landmark abolition of the death penalty and language reforms, this year has brought the progressive lifting of the state of emergency, the withdrawal of derogation from Article 5 of the European Convention of Human Rights (liberty and security), and a promising initiative to safeguard detainees from torture. The Turkish government must quickly follow through on that promise, and, in concert with the judiciary, do whatever is necessary to ensure that prisoners of opinion are released and that its citizens are never again jailed for expressing their non-violent views.
The E.U.'s regular report will be most effective in addressing these outstanding concerns if it provides a very detailed list of legislative and practical steps for Turkey to take during the remainder of the accession process.