Policy Brief

SETA

S E TA | F o u n d a t i o n f 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 f N o : 6 3

Turkey in 2012: Law and Human Rights

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

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A p r i l , 2013 | Brief No: 63

TURKEY IN 2012: LAW AND HUMAN RIGHTS

Authors: Ylmaz Ensarolu, Yavuz Gtrk,

Hseyin Krmz, Cem Duran Uzun

Translated by Glgn Kozan Kse

CONTENTS ABSTRACT | 3 LEGISLATIVE ACTIVITIES | 4 JUDICIARY | 7 HUMAN RIGHTS IN 2012 | 11 CONCLUSION | 25

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ABSTRACT
In 2012 the government introduced numerous changes and established new mechanisms in order to reinforce the constitutional state, resolve judiciary issues, protect and improve human rights and finally strengthen democracy. Some of the new regulations and institutions cherished hopes; however, people were more cautious about some of the laws enacted in order to lighten the burden of some public institutions or the establishment of some of the new institutions. The number of the judiciary cases pending before the court significantly declined and excessive population density of prisoners relatively decreased. Nevertheless, the reform in the judiciary is still needed. Laws such as the law on mediation in legal disputes, the law on the institution of the ombudsman and the law on the human rights institution in Turkey enabled the resolution of disputes without being submitted to the court and cherished hopes of a more efficient supervision of public administration in terms of human rights. However, appointments to these institutions and work pace of those who have been appointed provoked serious discussions. Regional courts of justice and judicial police offices were not established in 2012; however, new provisions allowed access by individuals to the Constitutional Court as of September 23, 2012. The government could not meet the schedule and complete the constitution-making process at the end of the year. Nevertheless, this process has been considered as a significant experience and the society has never given up hope of a new constitution. Given developments such as the Uludere incident and explosion at an ammunition storage facility in Afyonkarahisar, impunity of security personnel remains a serious concern. There have been significant improvements in the Kurdish issue, freedom of expression, freedom of religion, freedom of association and assembly, prisons, womens rights, childrens rights, torture and maltreatment, rights of the disabled, minorities and refugees among others. Notwithstanding there are still serious unresolved problems. In 2013 framework laws pertaining to discrimination, hate speech and hate crimes which define above-cited notions in line with international standards should be enacted and deterrent sanctions for these kinds of crimes should be imposed.

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TURKEY IN 2012: LAW AND HUMAN RIGHTS

This policy brief covers developments in law and human rights in 2012. In the first two sections constitutional and legislative changes regarding the constitutional state and human rights, and then judiciary developments will be analyzed. In the final section developments in human rights will be evaluated.

LEGISLATIVE ACTIVITIES
Enacted Laws The Turkish Grand National Assembly (TBMM) enacted a total of 98 laws by the closure of 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 for presidential elections and the required qualifications for presidential candidates. In line with the change in the Cheques Act, about 1,500 prisoners who had been sentenced to oneyear terms for 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 officials. The new law on the protection of the family and prevention of violence against women outlines the principles and procedures for the protection of women, children, and family members and the prevention of violence against them. In line with the change in education, compulsory education was extended from eight to twelve years and the education system was reorganized into primary, secondary and high school levels, each consisting of four 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 of supervised liberty was broadened and a higher number of prisoners were given the opportunity to serve part of their term outside prison within the scope of supervised liberty after completing a portion of their prison term. The law on mediation in legal disputes enables mediation by voluntary action by the parties involved in the resolution of civil disputes arising from matters or proceedings, which

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parties from now on will be able to freely resolve. The law on the institution of the ombudsman and the law on the human rights institution in Turkey were also enacted. The law known as the Third Judicial Reform Package covers major reforms in various areas such as enforcement, bankruptcy issues, and criminal justice. The Constitution-Making Process The TBMM took concrete steps towards drafting a new constitution during the last legislative session. The Constitutional Reconciliation Commissionin which three members from each party participatedheld its inaugural meeting on October 19, 2011, under the chairmanship of the speaker of 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 June 12, 2011 September 19, 2011 September 26, 2011 October 19, 2011 April 30, 2012 May 18, 2012 THE CONSTITUTION-MAKING PROCESS Political circles began extensive discussions on drafting a new constitution. It was on the agenda of all political parties in the pre-election period. Speaker iek met with twenty-four professors of constitutional law within the scope of the new constitution-making process. The AK Party sent invitation letters to the CHP and the MHP requesting an appointment to discuss the new constitution. The Constitutional Reconciliation Commission held its inaugural meeting. The commission gathered proposals from individuals and institutions before drafting the new constitution. The drafting process began. First a sub-commission was established and was assigned to draft the text of the new constitution starting from the basic principles of fundamental rights and freedoms. A second drafting commission was established to speed up the constitution-making process. In the first six months, the commission addressed the fundamental rights and freedoms chapter; however, the parties reached a consensus on only ten articles. The commission began to discuss the fiscal, economic and social provisions and legislative powers chapters.

The commissions invitation to the representatives of minorities was highly welcomed.

September 11, 2012 October 26, 2012 November 6, 2012

The commission called on all members of society to contribute to the constitutionmaking process. By April 30, 2012, the commission had listened to the opinions of a total of 426 institutions, including 104 universities, 5 institutes, 58 foundations, 102 associations, 32 platforms 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 official website for six months, which indicates that the commission paid attention to previous criticisms that people had not been allowed to contribute to the process. The commissions invitation to the representatives of minorities was highly welcomed. In fact, the Ecumenical Patriarch of Constantinople stated that it was the first time that minorities received such an official invitation in the history of the Turkish Republic.
1. For more information on the working procedures and principles of the Commission, see Anayasa Uzlama Komisyonunun alma Usulleri, 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.14-15.

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The second step of the drafting process began in May 2012. The commission at first addressed the section entitled Fundamental Rights and Freedoms. Because the commission sought a common consensus, the parties agreed on only ten articles in the first six months while the drafting of 38 articles was suspended due to inter-party disagreement. The commission failed to complete the drafting process by the end of 2012 and is expected to carry out intensive work in 2013. In this sense a great responsibility falls on the shoulders of the political parties in Parliament and their leaders so that the com-

A great responsibility falls on the shoulders of the political parties in Parliament and their leaders so that the commission completes a final draft.

mission completes a final draft. A field study3 indicated that the vast majority of the country wants a constitution in which every segment of the society participated and on which everyone reached a consensus, while a significant portion of people is dissatisfied with the current constitution-making process. Because this new constitution will represent a social contract, everyone must review their opinions and expectations about the new constitution, adopt conciliatory attitudes and find 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 drafts as the primary or secondary committee. In its first year, the committee analyzed seven drafts and proposals and submitted related reports. The committee has not yet completed analyzing an additional 20 proposals and drafts. The committee received about 4000 applications between June 2011 and October 2012. Established in 2012, the sub-committee on prisons pursued inquiries in civil and military prisons of various regions in Turkey and published reports on those inquiries. Another sub-committee, which was established in 2011 to investigate domestic violence, published a report of its research on May 24, 2012. Similarly, another sub-committee, which was established in 2011 to investigate violations of the right to life within the scope of terrorism and violence, examined human rights violations and heard from numerous experts including journalists, authors, scholars, human rights advocates and those who lost their relatives to violence. Another sub-committee established to conduct research on the problems of refugees, asylum-seekers, and illegal immigrants in Turkey published a report on Syrian refugees living in Hatay. The committee also wrote a report on murders committed by neo-Nazis in Germany between 2000 and 2006. On December 28, 2011, thirty-four citizens who were smuggling diesel oil from Iraq were killed in an airstrike carried out by Turkish fighter jets near Ortasu (Roboski) village in Uludere, rnak. On January 9, 2012, a sub-committee was established to look
3. 78.5 percent of the interviewees stated that they expect a constitution where every segment of society participated and on which everyone reached a consensus. When asked whether they are satisfied with the current constitution-making process, 49.9 answered no. For more information see Definitions and Expectations Regarding the New Constitution, TESEV, September 2012, p. 29-30. 4. Ylmaz Ensarolu, Is the Constitution-drafting period ending? Sabah Perspektif, 17.11.2012

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into the Uludere incident and carried out an investigation. A draft report of that investigation was completed at the end of November after the committee listened to those who lost their relatives in the incident, civil and military authorities, and analyzed the video recorded by fighter jets.

JUDICIARY
The Process of Judicial Reform The first and second reform packages were initially adopted in 2011, and Parliament passed the third reform package on July 2, 2012. The law consists of 107 articles abolishing specially-authorized courts and reducing penalties for those who violate the privacy of communication while increasing penalties for those who secretly record conversations without permission. The fourth judicial package is expected to be submitted to Parliament in early 2013. Minister of Justice Sadullah Ergin stated that the latest package is prepared in line with the European Court of Human Rights decisions on human rights violations in Turkey. The draft bill on shortening unduly-long trials is still on the Parliaments agenda. The new regulation outlining compensation procedures aims to reduce the number of cases at the European Court of Human Rights. In September 2012 individual application was introduced into the Turkish legal system through 2010 constitutional amendments and the law on the establishment and judgment procedures of the Constitutional Court. Because the Turkish government met 70 percent of the goals set by the Judicial Reform Strategy and Action Plan, the Ministry of Justice began updating the plan and announced a draft of the new strategy in September 2012. The number of the cases waiting to be heard at the Supreme Court of Appeals dropped from 1,150,000 to 880,000 thus decreasing workload by one-third when compared to 2011. The number of the cases concluded at the Council of State has gradually increased since 2008. Law no. 6352, enacted in July 2012, aims to decrease the heavy workload of the Council of State. In line with this law, some of the cases heard by the Council of State as the court of first instance will be transferred to administrative courts of first instance; the number of cases that the Council of State hears as the appeal authority will decrease and the prosecutors office of the Council of State will undergo further changes. Regional courts of justice, which had been established in fifteen cities, did not come into effect in 2012. The High Council of Judges and Prosecutors decided to combine 102 judicial organizations with other judicial organizations in June 2012. In January 2012 three courts came into effect in the second and third regions while 22 courts came into effect in the first region. Twenty courts stopped working altogether. A total
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The new regulation outlining compensation procedures aims to reduce the number of cases at the European Court of Human Rights.

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of 2,632 judges and prosecutors received in-service training in the first six months of 2012.5 The regulations on the working procedures and principles of the High Council entered into force on July 4, 2012. Regulations on the judicial police, which were enacted in 2005, stipulated the establishment of judicial police offices affiliated with the prosecutors office; however, judicial police offices still were not established in 2012. This is one of the leading problems of the criminal justice system. If the police conduct investigation, carry out security op-

Realizing that their decisions can be brought to the Constitutional Court by individuals, courts will have to be more careful about fundamental rights.

erations, and also function as both the investigative and prosecutorial authorities, then the summary of the proceedings will most often end in indictment, regardless of the guilt or innocence of the suspect.6 This is one of the most crucial obstacles to a fair trial. Individual Access to the Constitutional Court Within the scope of judiciary reforms, new provisions allowed access by individuals to the Constitutional Court as of September 23, 2012. Individual access was added for the first time under the 148th article of the 1982 constitution in line with the reform package adopted in the referendum on September 12, 2010. A long and difficult process, however, was required to put this into practice. Individual access to the Constitutional Court is a mechanism which allows direct application of individuals enjoying fundamental rights and freedoms, and primarily aims to protect those fundamental rights and freedoms. By adopting this mechanism, the state indicates that it will work to prevent and remedy human rights violations by ensuring individual applications. Realizing that their decisions can be brought to the Constitutional Court by individuals, courts will have to be more careful about fundamental rights. Nevertheless, the fact that individual access is limited to the rights only guaranteed under 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 conventions to which Turkey is a party. Although individual access to the Constitutional Court is legally well-founded, the success of individual access depends on whether the Constitutional Court continues to guarantee fundamental rights and freedoms and uses its authorities within the boundaries of the law. Individual access risks being perceived as aiming to decrease the number of applications from Turkey to the European Court of Human Rights. However, the real aim should be to prevent human rights violations in Turkey and the number of the cases brought to the European Court of Human Rights is expected to decrease accordingly.

5. The High Council of Judges and Prosecutors Activity Report for the first 6 months of 2012, July 2012, p. 33-37. 6. Ylmaz Ensarolu: Yargy bir gvenlik arac olarak kurgulamaktan vazgemeliyiz, Mostar, July 2012.

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Specially- Authorized Courts Adopted on July 2, 2012, the third judicial package abolished specially-authorized high criminal courts, which had remained on the agenda due to Ergenekon, Sledgehammer, KCK and match-fixing 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 of already-open cases. Upon the recommendation of the Constitutional Court, terror-related cases, which had previously been heard by the specially-authorized courts, will be assigned to high criminal courts in cities chosen by the High Council of Judges and Prosecutors. These courts will cover more than one city and so regional high criminal courts were established. People criticized the specially-authorized courts primarily on the grounds that the judges and prosecutors of these courts are granted and carelessly use special and extraordinary authorities that limit the right to defense. These courts elicited more criticism on the grounds that they attempt to eliminate opposition groups and limit the political sphere. During the discussions on the abolition of these courts, some argued that suspects will be released if 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 fair trial. The September 12th Case A Turkish court has accepted indictments against Kenan Evren and Tahsin ahinkaya, the only survivors among the five coup leaders in the National Security Council, the highest decision-making body of the military junta that led the 1980 coup. The prosecutors are seeking a penalty of aggravated life sentences. The first court hearing of the case was held on April 4, 2012. By November 11th court hearings had been held but institutions such as the Turkish General Staff, MASAK and MT have not yet submitted most of 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. Large-scale massacres and provocations which were committed before the 1980 coup in order to legitimize it should be investigated within the scope of the case. Systematic torture and maltreatment during and after the coup period should be investigated, and bureaucrats and public servants who committed torture or executed individuals with extreme prejudice should also be brought before the court. However, the current progress of the case does not meet expectations. Let alone expanding the case, the court failed even to bring two suspects to the court and rejected the intervening lawyers demand that suspects testify regarding charges of committing systematic torture and maltreatment. That the pro-coup suspects faced charges only for the crimes they committed against the state and the privileges that they enjoy during their trial deeply hurt public opinion. This case also received criticism from victims and provoked wide-ranging discussions. It is necessary to investi9

It is necessary to deepen this case, expand the investigation and accelerate hearings in order to come to terms with the past.

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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 for committing these crimes. Controversial Cases Launched in 2008, the Ergenekon7 case is coming to an end, but proved to be one of the most controversial cases in 2012. A total of 275 suspects, 67 of whom are under arrest, faced trial and 600 case hearings have been held in the past four years. During the hearings, some

Cases involving unsolved murders and disappearances in the southeast from the 1990s were still open in 2012.

of the defense lawyers stated that the court has not analyzed all of the evidence, which violates the right of defense. A new process began for the Ergenekon case after the court board gave time for the prosecutor to submit his assessment of the accusations. The case regarding the Sledgehammer Security Operation Plan concluded on September 21, 2012 following a trial lasting 21 months. Within the scope of the case, 365 suspects250 of whom were arrestedfaced trial for attempting to overthrow the Turkish government through force and violence. While 34 suspects were released, the other 330 were given prison sentences. Some of the defense lawyers did not, however, even attend the hearing, but instead protested the prosecutors decision to submit a 920-page final opinion to the court without analyzing the evidence and listening to some of the witnesses. The indictment of the postmodern coup investigation against 90 suspects who are members of the West Study Group is expected to be concluded at the beginning of 2013. The suspects face charges for attempting to overthrow the government or for partially or completely rendering the government dysfunctional. Cases involving unsolved murders and disappearances in the southeast from the 1990s were still open in 2012. Among the ongoing cases was the JTEM (Intelligence and AntiTerrorism Unit of the Gendarmerie) case, which was initiated against seven suspects for 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 confessors and four specialized sergeants for deliberate killing in November 2012. The suspects face ten counts of aggravated life imprisonment.8 In addition to the above-cited cases, another JTEM casewhich was launched against 16 suspects for unresolved murders committed in Diyarbakr, Mardin, Batman, and rnak in 1989-1994is currently underway in Diyarbakr High Criminal Court No. 6. The Temizz case and other trials within the scope of this case are significant in the struggle against wrongful immunity from prosecution. Owing to these trials, Turkey is coming terms with its past. Nevertheless, these cases are criticized for several reasons including the statute of limitations, limited scope of investigation, non-application of witness protection, wit7. An investigation was launched after 27 hand grenades, TNT setups and molds were found in the attic of a house in a slum in Umraniye, stanbul on June 12, 2007. Initiated after the first indictment regarding the investigation was accepted on July 25, 2008, the Ergenekon case has been merged with 7 cases including the cases regarding the armed attack on the Turkish Council of State, Cumhuriyet attack and the Union of Patriotic Forces. 8. JTEMin infaz mangasna 10 kez mebbet hapis talebi, Zaman, 28.1.2012.

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nesses retracting their statements, threats to lawyers, and the length of proceedings.9 Turkey should make the necessary legal arrangements so that the statute of limitations does not become an obstacle to holding to account public officials 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 protection of 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 of Hrant Dink, the editor-in-chief of the Agos newspaper, was closed at the 25th hearing on January 17, 2012. Within the scope of the case, twenty suspects, only two of whom were arrested, faced trial at Istanbul High Criminal Court No. 14. The court heard the final testimonies of the suspects and ruled that the assassination was not a premeditated crime. Consequently, Yasin Hayal was sentenced to aggravated life imprisonment for instigating the murder, to three months in prison for threating Orhan Pamuk, and to one year in prison for possessing an unregistered firearm. 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 involving the murder of employees of the stanbul-based publishing house Zirvewhich focused on Christianity-related booksremained unresolved in 2012. Thirteen suspects are still held on remand.

HUMAN RIGHTS IN 2012

Civilian Control of Security Forces There are serious deficiencies in civilian monitoring and control of security forces in Turkey. One of the greatest obstacles to the development of democracy is the failure to carry out effective and transparent investigations of incidents in which security personnel are guilty or negligent. One of the most controversial events addressed in 2012 was the Uludere massacre, which took place on December 28, 2011. Thirty-four civilians were killed in the incident and the prosecutors declared the investigation documents confidential. In its draft report, the TBMM Human Rights Inquiry Committee did not indicate who gave the order and stated instead that local security offices were not informed about the operation. Another controversial incident was the September 2012 explosion at an ammunition storage facility in Afyonkarahisar in which 25 soldiers were killed and 23 others were injured. In the wake of the incident, the public prosecutors office and military prosecutors office launched a judicial investigation while the General Staff and Ministry of National Defense launched administrative investigation into the incident. Nevertheless, results of the investigations have not yet been declared to the public.
9. Time for Justice/ Ending Impunity for Killings and Disappearances in 1990s Turkey, Human Rights Watch, 2012, p. 2-3. 10. The prime suspect of the Hrant Dink assassination, Ogn Samast faced trial at Istanbul 2nd Juvenile High Criminal Court and was sentenced to 22 years and 10 months in prison for premeditated murder and possessing unregistered firearm on July 25, 2011.

One of the greatest obstacles to the development of democracy is the failure to carry out effective and transparent investigations of incidents in which security personnel are guilty or negligent.

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Furthermore, law no. 6085 on the Turkish Court of Accounts, which was originally enacted in December 2010, underwent changes on June 29, 2012. These changes damaged the autonomy of the Court of Accounts and came close to removing the control of expenditures of both military and civilian institutions. TBMM Coup and Memorandum Investigation Commission The TBMM Coup and Memorandum Investigation Commission11 carried out its investigations with seventeen members of parliament in 2012. Moreover 46 experts con-

The report is expected to pave the way for Turkey to come to terms with its past and to confront crimes against humanity committed in the past and coup dtats that damaged democracy.

tributed to the commission. The commission began its investigations on May 2, 2012, and listened to the testimonies of 157 people. The commission asked the opinions of politicians, military officials, bureaucrats, media bosses, and journalists regarding the coup and memoranda. Whereas Kenan Evren and Tahsin ahinkaya, the leaders of the September 12th coup, refused to testify on the grounds that the commission may not subpoena them for information as they acted according to temporary articles of the constitution, although they had already been called twice to testify.12 Commission chair Nimet Ba stated that the National Security Council shared the March 12th and February 28th decisions for the first time. These decisions will not, however, be declared to the media and public as they are still confidential.13 Ba also stated that the General Staff and the National Security Council refused to send certain documents on the grounds that these documents constitute state secrets.14 It is significant that all political parties in the TBMM contribute to the commission. In democratic countries public institutions are willing to testify to a commission established by the parliament; however, in Turkey there are those who easily decline a parliamentary commissions invitation. The report of the commission will be a unique example in many ways. The report is expected to pave the way for Turkey to come to terms with its past and to confront crimes against humanity committed in the past and coup dtats that damaged democracy. Therefore it is necessary to pay attention to the recommendations put forward by the commission. Compliance with international human rights law In the first nine months of 2012 the ECtHR delivered 160 judgments that found Turkey in violation of the European Convention of Human Rights.15 Turkey-related cases constituted 43 percent (30, 887,569 Euro) of ECtHR decisions for compensation (71,889,407

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11. The full name of the Commission: The Parliamentary Investigation Commission for investigating all attempts and processes that disable democracy in our country by means of coups and memoranda and for introducing necessary measures. 12. Darbeciler Anayasalarna Snd, http://www.tbmm.gov.tr/develop/owa/gazete_haberleri.haber_ detay?pkayit_no=1437015, Last Access: 15.11.2012 13. 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 for Turkey, p.18.

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Euro) in 2011.16 At the end of 2012, 17,100 Turkey-related cases were still waiting to be heard. Applications from Turkey to the ECtHR constitute 12.6 percent of the total applications.17 Turkey comes second in the number of applications after Russia. However, Prof. Dr. Il Karaka, a judge at the ECtHR, stated that this ranking is misleading as only 10 percent of the Russian cases will be worth investigating while the Court will investigate 60 percent of the Turkish ones.18 In 2012 the government took a significant step to shorten long detention times, which constitute a significant amount of the applications to the ECtHR. The draft submitted to the TBMM on May 17, 2012, will enable the establishment of a commission on domestic law in Ankara and this commission will deal with three thousand cases related to long detention terms waiting to be heard. This mechanismwhich will function as a compensation commissionaims to eliminate the cases waiting before the ECtHR, to pay cash compensation to victims and to conclude cases within Turkey. As a result the ECtHR suspended Turkey-related cases regarding long jail terms for one year in order to give time to the commission to get prepared. In 2012 Turkey refused to remove its reservations about Protocol No. 1 to the European Convention on Human Rights, including issues such as reservation of ownership, right to education, and free elections. Turkey has yet to become a party to Additional Protocol No. 4, which was signed on October 19, 1992 and ratified February 23, 1994. Protocol No. 7, which Turkey signed on March 14, 1985, has also not been ratified. Turkey did sign the anti-discrimination treaty of the Council of Europe, and Protocol No. 12 to the ECtHR on April 18, 2001; however, it has not yet been ratified the protocol. Signed on May 11, 2011 in Istanbul, the Council of Europe Convention on Preventing and Combatting Violence against Women and Domestic Violence, also known as the Istanbul Convention, entered into force March 8, 2012. The Turkish Parliament was the first parliament in the world to pass the convention.

In 2012 the government took a significant step to shorten long detention times, which constitute a significant amount of the applications to the ECtHR.

16. Supervision of the execution of judgments and decisions of the European Court of Human Rights / Annual report, 2011, Council of Europe, April 2012. 17. ECHR - Pending Applications Allocated To a Judicial Formation, http://www.echr.coe.int/NR/rdonlyres/ D552E6AD-4FCF-4A77-BB70-CBA53567AD16/0/CHART_311092012.pdf, Last Access: 26.11.2012 18. Sedat Ergin, AHMdeki Trk yarg: Durumumuz parlak deil, Hrriyet, 27.11.2012.

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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 from Turkey on three of these recommendations by March 2010 and its fourth and fifth periodic reports in 2011. However, Turkey has yet to submit these reports to the committee. UN Committee on Childrens Rights: Turkey submitted the first periodic report mandated by the committee in 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 Turkey submit its combined fourth and fifth reports on May 3, 2017 and include information about the implementation of current reviews. UN Committee for the Prevention of Torture: The committee reviewed Turkeys third periodic report, submitted after a four-year delay in November 2010. Turkey is obliged to submit its fourth report by November 19, 2014. UN Committee on Economic, Social and Cultural Rights: The committee evaluated Turkeys first periodic report on October 17-18, 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 reportwhich was originally due on December 16, 2004on March 17, 2011.20 The committee will review Turkeys report in 2013. 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 ratified the UN Convention on Disabled Rights on December 3, 2008. A state is required to submit its first report two years after it becomes a party to the convention and submit other routine reports in every four years. Turkey was obliged to submit its first report by October 28, 2011. UN Committee on Migrant Workers: Turkey ratified the convention on the protection of the rights of all workers and members of their families on April 26, 2001. Turkey made a declaration regarding Articles 76 and 77 and stated that it will recognize the competence of the committee at a later time. Turkey has not yet done so.
19 20

Parliament continued to carry out reforms in freedom of expression by adopting judicial packages in 2012.

Institutionalization of Human Rights Turkey took significant steps in the institutionalization of human rights in 2012. The first one was the law enabling the establishment of an ombudsman. On November 27, 2012 Mehmet Nihat merolu was elected as ombudsman by receiving the highest number of votes in Parliament.21 In 2012 another significant development was the establishment of the human rights institution of Turkey. Enacted in June, the law received criticism from civil society organizations on the grounds that they are not given the opportunity to express their opinion during the preparation of the law or when Parliament passed the law. The president, government, YK and presidents of bar associations appointed eleven board members in September under the framework of the law.22 At first, the board will choose a president and a second president among its members and appoint a bureaucrat as vice president. Then the institution will begin working and the Human Rights Presidency of the Prime Ministry of the Republic of Turkey will be abolished. The TBMM Human Rights Inquiry Committeewhich has been in force since 1990 underwent a structural change in 2012. The change in the law of establishment on
19. For the full report, see http://www2.ohchr.org/english/bodies/crc/docs/co/CRC_C_TUR_CO_2-3.pdf. 20. For the full 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 as ombudsman in the election held on November 28, 2012. 22. The President Abdullah Gl appointed Prof. Dr. Serap Yazc and Assist. Prof. Levent Korkut; the Council of Ministers appointed Assoc. Prof. Dr. Abdurrahman Eren, lawyer Fatma Benli, Dr. Hikmet Tlen, mer Vardan, Selamet lday, Ylmaz Ensarolu and Prof. Dr. Yusuf evki Hakyemez as board members. YK appointed Prof. Dr. Nihat Bulut and the President of Artvin Bar, lawyer zzet Varan won the elections held by the Presidents of Bar Associations.

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December 1, 2011 granted the commission the right to analyze bills of law and drafts as the main or secondary commission. After the Optional Protocol to the UN Convention Against Torturewhich Turkey signed in 2005was published in the official gazette and entered into force 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 towards an OPCAT national preventive mechanism, though it was obliged to establish such a mechanism by October 27, 2012. The Ministry of Internal Affairs continued its work on the draft law on establishing a commission for equality and against discrimination in 2012. The draft law on establishing an independent police complaints commission is still on the agenda. Parliament has yet to pass the law. Human Rights Issues Freedom of Expression Parliament continued to carry out reforms in freedom of expression by adopting judicial packages in 2012. The third judicial package banned the confiscation of unpublished works. Nevertheless there are still problems regarding the freedom of expression. The ECtHR received numerous applications regarding violations of freedom of expression in Turkey. Cases against imprisoned journalists and members of 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 for 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 profession but for unrelated criminal acts. Individuals may face trial for writing an article or making a speech under Articles 6 and 7 of the Anti-Terror Law in combination with Articles 220 and 314 of the Turkish criminal code, which are criticized as violations of freedom of expression.24 Laws are not the only obstacles to freedom of the press. One should note that oppression and threats from politicians, public officials, and media bosses have led to the dismissal of some journalists, leading to an increase in self-censorship. Freedom of Religion The concept of secularism in Turkey is authoritarian. Secularism in Turkey means defining the religion. Secularism in Turkey is imposing this religion on everyone. Therefore, this concept of secularism oppresses Muslims whose sense of religion is different from the official one and practically ignores other religious groups. As a matter of fact, there are no religious minorities legally recognized in Turkey apart from Armenian,
23. The report states that the evidence was less clear in the cases of 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.pdf Last Access: 06.02.2013 24. European Commission, 2012 Progress Report for Turkey, p. 22

This concept of secularism oppresses Muslims whose sense of religion is different from the official one and practically ignores other religious groups.

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Greek, and Jewish groups, which were recognized by the Treaty of Lausanne. In 2012 problems related to freedom of religion persisted. Bans on settlement and places of traditional religious groups remained in place; the demands of Alevi and Shiite/Jafari groups have not been met. The majority of universities do not impose a headscarf ban; however, the headscarf issue still exists. Whether a student can wear a headscarf depends on university directors. Some let students wear headscarves while some still impose the ban. The heads-

The status of cemevis was another controversial issue regarding freedom of religion in 2012.

carf is still banned in public institutions. In 2012 the head of Turkeys Directorate of Religious Affairs (Diyanet) visited the Ecumenical Patriarchate of Constantinople for the first time in Republican history.25 The head of the Diyanet also visited cemevis in previous years. His initiatives for dialogue were welcomed but the Directorate of Religious Affairs remained structurally unchanged in 2012. The Directorate of Religious Affairs elicited criticism when it included monitoring missionary activities within the country and abroad in its 2012-2016 strategic plan.26 On the other hand, obstacles for non-Muslims wishing to learn and teach their own religions persist. Though it sparked considerable discussion, the Halki Theological Seminary remains closed. Because non-Muslim groups other than those recognized by the Treaty of Lausanne are not officially recognized (in other words because they are unincorporated) they face 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 of Constantinople celebrated the third mass since 1923 in Smela Monastery in Trabzon. The Holy Cross Armenian Church continues to celebrate its annual mass on Akdamar Island in Lake Van. The status of cemevis was another controversial issue regarding freedom of religion in 2012. The Supreme Court of Appeals 7th Civil Chamber decided to close down the Cemevi Building Association and ruled that only mosques and masjids are considered places of worship.27 Speaker iek rejected MP Hseyin Aygns demand for building cemevis, arguing that Alevism is a formation within Islam and the house of worship for Islam is the mosque.28 Consequently some Alevi groups reacted negatively to these developments. 29 New course books prepared by the Ministry of National Education that include information on Alevism were welcomed in the 2012-2013 academic year. Religious educa25. Balatta Tarihi Buluma, http://www.ntvmsnbc.com/id/25364169, Last Access: 10.12.2012. 26. 2012-2016 Strategic Plan of the Directorate of Religious Affairs 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.alevifederasyonu.org.tr/index.php?option=com_ content&view=article&id=486, Last Access: 10.12.2012.

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TURKEY IN 2012: L AW A N D H U M A N R I G H T S

tion, however, is still compulsory in schools. The decision of the ECtHR in the Zengin/ Turkey case has not been implemented. Similarly, the 2010 decision of the ECtHR that the religious affiliation section on the Turkish identity card violates the European Convention on Human rights has not been implemented, thus provoking criticism. Published in July 2012, the U.S. International Religious Freedom Report for Turkey stated that the government generally respected religious freedom, but also that some constitutional provisions restricted this right, some groups were exposed to pressure due to their religious beliefs and practices, and the government continued to impose limitations, particularly on non-Muslim groups.30 Freedom of Association and Assembly In 2012 one of the significant developments in freedom of association was the amendment 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 confederations to establish international institutions in line with the targets set by their regulations. The state will no longer be able to relocate local representatives of 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 of Health and established the Health Professions Council.31 The Turkish Medical Association and the World Medical Association criticized the law on the grounds that it decreased self-governing powers of the medical association.32 Other operations against trade unions and civil society organizations continued in 2012. Though it is constitutionally guaranteed, freedom of association and assembly is sometimes curtailed in practice. This mainly results from administrative arrangements. Security forces from time to time resort to excessive force in demonstrations on issues such as union rights, the Kurdish issue, and student rights. Prisons Data gathered from the Ministry of Justice33 indicated that in 2011 a total of 128,604 individuals were in prison in Turkey, 92,617 of 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.

In 2012 one of the significant developments in freedom of association was the amendment to the law on public servants trade unions.

30. U.S. International Religious Freedom Report for 2011-Turkey, http://www.state.gov/j/drl/rls/irf/religiousfreedom/index.htm?dlid=192871, Last Access: 10.12.12. 31. The Decree Law Concerning the Organization and Duties of the Ministry of Health and Affiliated Institutions, Official Gazette, No: 28103 02.11.2012. 32. Turkish Government urged to Restore Powers to Medical Association, http://www.wma.net/en/40news/20ar chives/2012/2012_08/index.html, Last Access: 12.12.2012. 33. For more information see Ministry of Justice, Director General of Prisons and Detention Houses http://www. cte.adalet.gov.tr, Last Access: 12.11.2012.

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The most significant development of 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 low-security prison, those who spent one-fifth of their sentence in juvenile detention facilities or those with good behavior who will be released on probation in one year or less were given the opportunity to serve part of their term outside prison within the scope of supervised liberty. After the law was enacted, about eighteen thousand prisoners were released on probation within three months. It is positive that the number of convicted prisoners increased while the number of the prisoners on remand

t is necessary to increase the number of minor training facilities and juvenile prisons in order to prevent torture, sexual harassment and sex abuses.

decreased. Nevertheless the high number of prisoners exceeding the capacity of the facilities is still a big concern despite the change in the law on supervised liberty. Out of 377 detention facilities, only three function as minor training houses while four serve as juvenile prisons and detention centers. It is necessary to increase the number of minor training facilities and juvenile prisons in order to prevent torture, sexual harassment and sex abuses as claimed in Adanas Pozant juvenile prison and children should be separated from adults in prison. In 2012 in total thirteen new penal institutions were opened, seven annex buildings were constructed. The construction of three detention facilities is still underway. 34 Thirteen prisoners burned to death in a fire in the anlurfa E-type prison in June, putting the control of 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 of international control, the European Committee for the Prevention of Torture may visit prisons with or without notice, but must obtain permission from the state in order to publish its report. It is uncertain whether these control mechanisms bring about change in prison conditions. Human rights organizations still have no opportunity to monitor prisons. There are still obstacles to reprieve or amnesty for seriously ill prisoners. The Forensic Medicine Institution is the sole institution responsible for publishing reports on the issue. Therefore giving authority to forensic medicine departments of medical faculties and to forensic medicine departments of hospitals will ease the burden of the Forensic Medicine Institution and remove current obstacles. Moreover this will facilitate the timely response to seriously ill prisoners. Another significant development regarding prisons in Turkey was hunger strikes at the end of 2012. PKK, PJAK and KCK prisoners began hunger strikes on September 12, 2012, demanding an end to Abdullah calans solidarity confinement and Kurdish language rights in education and in court. More than 600 prisoners joined the hunger strikes.

18

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

TURKEY IN 2012: L AW A N D H U M A N R I G H T S

On November 17, 2012, Abdullah calan called on the strikers to stop in a statement issued by his brother Mehmet calan, thus ending a 68-day hunger strike. It is noteworthy that all actors, notably Justice Minister Ergin, successfully managed the crisis. Womens Rights Last year significant legal arrangements were made regarding the prevention of violence against women. The first one is the law on the protection of the family and prevention of violence against women, enacted March 20, 2012. The law aims to protect women, children, family members, and victims of unilateral and persistent stalking and prevent violence against them. Prior to the enactment of the law, the Womens Platform against Violence, consisting of 237 womens organizations, stated deficiencies in the draft law in a letter to members of parliament. The 2007-2010 National Action Plan on Combatting Domestic Violence against Women was updated with contributions from civil society organizations and universities. The 2011 Joint Report of the Monitoring and Evaluation Meeting of the 2008-2013 National Action Plan on Gender Equality was announced in May 2012. Furthermore, on April 12, 2012 the Ministry of Family and Social Policies and General Command of Gendarmerie signed a protocol on providing training to gendarmerie personnel on prevention of violence against women and gender in order to support victims of violence. On March 8, 2012 the Istanbul Convention, the first legally binding instrument in international law to prevent violence against women and domestic violence, entered into force. Turkey had led the drafting process of the convention. In 2012 the scope for womens shelters was broadened and the government took the required initiatives to change related regulations. In the first ten months of 2012, twenty new shelters were opened. There are a total of 103 guest houses/shelters while 35 provinces still have no shelters. The new regulation on women shelterswhich was submitted to the Prime Ministry on November 20, 2012decided that the government will lease independent safe houses for victims of violence with children older than twelve. The Turkish Parliament passed the law on amending the decree laws concerning the organization and duties of the Ministry of Health and affiliated institutions to limit births by cesarean section to cases of medical necessity, thus causing a disagreement between the government and women organizations. Civil society organizations argued that the law was enacted without preparation and discussion. A similar polemic occupied the agenda following the governments statements on abortion. Childrens Rights In 2012 Turkey retained reservations concerning the UN Convention on the Rights of the Child and the Article 2 of Protocol No. 1 to the ECtHR on the right to education on
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In 2012 the scope for womens shelters was broadened and the government took the required initiatives to change related regulations.

S E TA POLICY BRIEF

the grounds that Law No. 430 from May 1924 prohibits the establishment of religious private schools. In 2012 the UN Committee on the Rights of the Child provided the most significant evaluation of childrens rights in Turkey.35 The committee welcomed the amendments to the 2010 counterterrorism law providing for children to stand trial in juvenile courts, and softening penalties for juveniles under the age of eighteen. The law on child protection was enacted in 2005 and legal amendments concerning persons with disabilities (2005) in the area of education, rehabilitation, care and social security of children with disabilities were included. Furthermore, the new Turkish penal code increased the minimum age of criminal responsibility from eleven to twelve. The committee praised Turkey for signing a number of conventions and protocols on the right of the child. On the other hand, the committee criticized Turkey for not removing reservations to the Convention on the Rights of the Child, for not establishing an independent and effective monitoring mechanism, for not prohibiting discrimination against children belonging to minorities not recognized under the Treaty of Lausanne of 1923, and for disparities affecting children living in the eastern and southeastern regions and in rural areas, especially with regard to their access to adequate health and education and for poor conditions in some prisons. The regulation on dress codes of students in schools affiliated with the Ministry of National Education was amended in November 2012.36 The regulation removed the school uniform requirement in pre-school, primary, secondary and high schools. That the regulation lifted the headscarf ban only for Imam Hatip schools and in some elective courses provoked serious criticism. In 2012 some cases provoked debate on measures against child abuse and attitudes of public institutions, judiciary institutions and the media. Torture and Ill-treatment In 2012 human rights organizations constantly criticized Turkey for excessive use of force by security forces in detentions centers and prisons, during detention, and outside official detention centers. The European Commission stated that the number and intensity of the cases of ill-treatment by law enforcement officers have decreased. Human rights organizations argue, however, that the intensity of torture and ill-treatment is rising and that impunity provokes torture.37 It is positive that some courts accept committee reports from the Forensic Medicine Institution (affiliated with the Ministry of Justice,) forensic practitioners, universities or
35. For the full report see http://www2.ohchr.org/english/bodies/crc/docs/co/CRC_C_TUR_CO_2-3.pdf. 36. Regulation on Students Dress Codes in Schools affiliated to the Ministry of National Education, Official Gazette, No: 28480, 27.11.2012. 37. Joint Public Statement of 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 Turkish penal code increased the minimum age of criminal responsibility from eleven to twelve.

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TURKEY IN 2012: L AW A N D H U M A N R I G H T S

independent institutions as evidence. Turkey has not established a national preventive mechanism in line with the Optional Protocol yet, although it ratified the Optional Protocol to the UN Convention against Torture. Allegations of torture and ill-treatment in the Turkish Armed Forces provoked heated debate in 2012. Civil society organizations have intensified their work on these issues in recent years. In their reports, torture and ill-treatment in the army include insults, beating, involuntary excessive physical activity, threats, disproportionate punishment, sleep deprivation, [and] denial of access to proper healthcare.38 It is necessary to swiftly and comprehensively carry out not only judicial but also administrative investigations on allegations of torture by public officials. Impunity remains a concern as administrative investigations on allegations of torture and ill-treatment are incomplete and drawn-out, and prison sentences are most of the time suspended. Moreover, citizens are threatened with obstructing charges when they are willing to file a complaint for torture and ill-treatment. Persons with disabilities On September 28, 2009, Turkey signed the Optional Protocol to the UN Convention on the Rights of Persons with Disabilities under which the UN can receive individual and collective complaints. It had ratified the UN Convention in December 2008 but it has yet to ratify the protocol itself. Therefore individuals cannot apply to the UN for human rights violations of persons with disabilities in Turkey. Turkey also has not established a national implementation and monitoring mechanism though it is a party to the Convention. 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 for people with disabilities. For instance, home-based care services for the disabled have expanded and efforts to promote entrepreneurship for people with disabilities have increased. There are still obstacles to the employment of the disabled in the public sector and people with disabilities still have difficulties in access to education, health, social and public services. There is still no independent body to monitor and inspect mental health institutions.39 Minorities and Cultural Rights In 2012 representatives of non-Muslim minorities were invited to the TBMM to give their opinions during the constitution-drafting process for the first time. The amendment to the regulation of private schools by the Ministry of National Education allows Armenian, Greek and Jewish students who are not citizens of Turkey to receive education 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 for Turkey, p.29.

Turkey has not established a national preventive mechanism in line with the Optional Protocol yet.

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This offers a solution to educational problems of children of Armenian migrants who illegally work in Turkey.40 Furthermore, the government made legislative amendments allowing newspapers published by non-Muslim groups to publish an official announcement in 2012. In 2012 no documented physical attacks against minorities took place in Turkey. Nevertheless, the case concerning assassination of three Protestants in Malatya in April 2007 and the case concerning the assassination of BishopPadovese in skenderun in 2010

2012 has been a year of violence and conflicts, terrorist acts, security operations and securityfocused policies.

are still ongoing. In 2012 the Supreme Court of Appeals decided that 276 thousand square meters of the 1615-year-old Mor Gabriel Monastery in Midyat, Mardin belong to the Treasury. This decision overshadowed reforms in an environment where radical solutions are provided for property issues of Turkeys non-Muslim foundations and groups and it provoked criticisms within the country and abroad. Turkey did not sign the European Council Framework Convention for the Protection of National Minorities and European Charter for Regional or Minority Languages.41 Turkey has retained its reservations about the UN Covenant on Civil and Political Rights in terms of minority rights and reservations about the UN Covenant on Economic, Social and Cultural Rights in terms of right to education. If Turkey removes these reservations and signs and ratifies these covenants, then it will effectively guarantee the rights and freedoms of 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 of violence and conflicts, terrorist acts, security operations and security-focused policies. Turkey witnessed increasing armed conflicts between security forces and PKK militants. Through the end of October, 123 soldiers and more than 300 PKK militants were killed in clashes between security forces and the PKK.42 International public opinion, including the EU, condemned the attacks. The PKK also kidnapped politicians and civilians in addition to security officials thus provoking serious reactions. On December 28, 2011, thirty-four citizens smuggling diesel oil from Iraq were killed in an airstrike carried out by Turkish fighter jets near Ortasu (Roboski) village in Uludere, rnak. People continued to voice concerns and criticisms about the transparency and efficiency of the investigation of the incident. Similarly, the fact that neither the military nor civilian authorities apologized for the incident provoked reactions.
40. MEBden aznlk okullar iin beklenen dzenleme, Agos, 21.03.2012. 41. Turkey is one of the four countries which have not signed the covenant, others being Andorra, France and Monaco See. http://www.coe.int/t/dghl/monitoring/minorities/default_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.

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TURKEY IN 2012: L AW A N D H U M A N R I G H T S

Operations against the illegal urban wing of the PKK, also known as the Koma Ciwaken Kurdistan- Union of Communities in Kurdistan/Assembly of Turkey (KCK/TM), continued in 2012. Long detention of thousands of people including members of the parliament, mayors and representatives of local authorities heightened tension in southeastern Turkey. Within the scope of human rights, the debate about the Kurdish issue focused on the right to education in the mother tongue, which is one of the significant rights guaranteed 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 of a political struggle. Therefore teaching mother tongue in an elective course alone does not guarantee this right. On the other hand, it is positive that the Ministry of National Education offers elective language and dialect courses including Kurdish and Circassian beginning in the 2012-2013 academic year and Kurdish undergraduate and graduate courses and departments were established in universities. These are positive steps towards fully 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 defense in mother tongue in order to defuse a related crisis which arose following 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 of implementation of the lawon the compensation of losses resulting from terrorism and the fight against terrorism was extended by one year in April 2012. Damage assessment commissions received 361,391 applications up to September 2012. Of those, 305,758 were assessed, with compensation paid in 166,158 cases and 139,600 applications rejected.44 There are still some limitations for the use of languages other than Turkish in legislation as well as in the constitution and law on political parties. Furthermore the Council of Europes Congress of 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 reform the municipality law accordingly has
43. Draft law amending the Code of Criminal Procedure and the Law on the Execution of Penalties and Security Measures, http://www2.tbmm.gov.tr/d24/1/1-0708.pdf, Last Access: 10.12.2012. 44. European Commission, 2012 Progress Report for Turkey, p. 35 45. The recommendation emphasized that cultural rights and freedoms of those Turkish citizens who use languages other than Turkish are limited and the measures taken against local authorities for using languages other than Turkish in the provision of public services are not being applied consistently to all languages. For the full text see. Recommandation 229 (2007) Dmocratie locale en Turquie, Conseil de lEurope, 20 Novembre 2007.

Within the scope of human rights, the debate about the Kurdish issue focused on the right to education in the mother tongue.

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not been implemented. The demands of Kurdish people in Turkey, however, are not limited to individual rights and freedomsthey include political demands as well. Therefore a fundamental democratic governance reform based on decentralization which strengthens local authorities through transferring some powers from the central administration to them will meet various demands of Kurdish people. Consequently, it is an obligation to consider projections as to the resolution of the Kurdish issue from the perspective of strengthening local authorities.

Although Turkey ratified the 1951 convention relating to the status of refugees in 1961 and its 1967 protocol in 1968, it has not removed its geographical objections to the Convention.

Refugees In 2012 Turkey took positive steps concerning refugees and asylum seekers. The European Commission stated that there were improvements in treatment and detention conditions in the removal centers and that law enforcement officials and central and local administrations have improved their practices. 46 The draft law on foreigners and international protection, which will shape Turkeys policies on migration and asylum, was accepted unanimously by the TBMM Internal Affairs Committee on June 27, 2012 and referred to the TBMM General Assembly. Work continues on the draft law on combating human trafficking and protecting its victims. Although Turkey ratified the 1951 convention relating to the status of refugees in 1961 and its 1967 protocol in 1968, it has not removed its geographical objections to the Convention. Accordingly, Turkey provides refugee status only to citizens from European countries while it issues temporary residence permits to citizens from non-European countries. Turkey should remove this geographical reservation. Turkey retained its reservations towards Article 40 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, which was approved by the UN on December 18, 1990 and ratified by Turkey on April 26, 2001.47 The UN data indicates that there were 22,640 refugees and asylum seekers in Turkey as of June 2012.48 This does not include asylum seekers from Syria who have fled their country since March 2011 due to civil war. As of 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 refugees are accepted in Turkey under temporary protection and only their fundamental needs are met; they are not subjected to individual applications which are required for other refugees and the UNCHR has not resettled Syrian refugees in a third country.51
46. European Commission, 2012 Progress Report for Turkey, p. 35 47. See http://www2.ohchr.org/english/law/cmw.htm, Last Access: 08.12.2012. 48. http://www.unhcr.org/cgi-bin/texis/vtx/page?page=49e48e0fa7f&submit=GO, Last Access: 08.12.2012. 49. Press Release by the Prime Ministry Disaster and Emergency Management Presidency, http://www.afad.gov. tr/TR/HaberDetay.aspx?ID=12&IcerikID=857, 50. Ban Ki-Moon: Suriye konusunda uluslararas camia ve BM birlikte almal, Zaman, 07.12.2012. 51. Press Release by Coordination of Refugee Rights, http://www.multeci.org.tr/?p=771, Last Access: 08.12.2012.

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TURKEY IN 2012: L AW A N D H U M A N R I G H T S

Although the Coast Guard has taken strict measures, refugees from Africa, the Middle East, and Asia still try to illegally cross the Aegean Sea in order to enter Greece from Turkey. Hate Crimes One of the most significant problems in Turkey is hate speech and hate crimes caused by long-standing polarization and discrimination policies. Intolerance and discrimination against different 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 of hate crimes; on the contrary, they sparked debates on impunity. Unfortunately the government has not introduced any hate crime regulations in 2012. Nevertheless, Parliament worked on various draft laws relating to the issue. Universities and civil society organizations drafted multiple reports and worked to include hate crimes in legislation. Particularly the events in the wake of the release of the movie titled Innocence of Muslimswhich provoked numerous protests around the world on the grounds that it insults Islamic values and Muslimsand debates on Islamophobia caused decisionmakers in Turkey to focus on hate crimes. Parliament is expected to draft new regulations on the issue in 2013. It is imperative that decision-makers put this issue on their agenda and draft a comprehensive regulation without delay.

Intolerance and discrimination against different ethnic and religious groups and disadvantaged groups in recent years have given rise to various hate crimes.

CONCLUSION
In 2012 the government introduced numerous changes and established new mechanisms in order to strengthen the constitutional state, resolve judiciary issues, protect and improve human rights and finally strengthen democracy. Some of the new regulations and institutions cherished hopes; however, people were more cautious about some of the laws enacted in order to lighten the burden of some public institutions or the establishment of some of the new institutions. The number of the judiciary cases pending before the court significantly declined and excessive population density of prisoners relatively decreased. Nevertheless, the judicial reform is still needed. Laws such as the law on mediation in legal disputes, the law on the institution of the ombudsman and the law on the human rights institution in Turkey enabled the resolution of disputes without being submitted to the court and cherished hopes of a more efficient supervision of public administration in terms of human rights. However, appointments to these institutions and work pace of those who have been appointed provoked serious discussions. Regional courts of justice and judicial police offices were not established in 2012; however, new provisions allowed access by individuals to the Constitutional Court as of September 23, 2012. Nevertheless, it is a significant problem that individual access is limited to the rights only guaranteed under the constitution and the European Convention on Human Rights.
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The government could not meet the schedule and complete the constitution-making process at the end of the year. Nevertheless, this process has been considered as a significant experience and the society has never given up hope of the new constitution. Specially-Authorized courts were abolished but the state did not give up the idea of judicial institutions with extraordinary authorities which are against the rule of law and fair trial. Regional courts for terror-related cases replaced these courts. Cases brought against military coups and interventions such as 12 September coup

The government could not meet the schedule and complete the constitutionmaking process at the end of the year.

and 28 February post-modern coup and against illegal organizations such as Ergenekon, Sledgehammer continued in 2012. But the judiciary failed to dismiss speculations about these cases including speculations about long detention terms. Similarly, the government couldnt carry out effective investigations of the incidents in which security personnel in these illegal organizations are guilty or negligent. Given developments such as Uludere incident and explosion at an ammunition storage facility in Afyonkarahisar, impunity of security personnel remains a serious concern. One of the positive developments of 2012 was the report published by the TBMM Coup and Memorandum Investigation Commission. There have also been significant improvements in Kurdish issue, freedom of expression, freedom of religion, freedom of association and assembly, prisons, womens rights, childrens rights, torture and maltreatment, rights of the disabled, minorities and refugees among others. Notwithstanding there are still serious unresolved problems. In 2013 framework laws pertaining to discrimination, hate speech and hate crimes which define above-cited notions in line with international standards should be enacted and deterrent sanctions for these kinds of crimes should be imposed.

26

In 2012 the government introduced numerous changes and established new mechanisms in order to reinforce the constitutional state, resolve judiciary issues, protect and improve human rights and finally strengthen democracy. Some of the new regulations and institutions cherished hopes; however, people were more cautious about some of the laws enacted in order to lighten the burden of some public institutions or the establishment of some of the new institutions. The number of the judiciary cases pending before the court significantly declined and excessive population density of prisoners relatively decreased. Nevertheless, the reform in the judiciary is still needed. Laws such as the law on mediation in legal disputes, the law on the institution of the ombudsman and the law on the human rights institution in Turkey enabled the resolution of disputes without being submitted to the court and cherished hopes of a more efficient supervision of public administration in terms of human rights. However, appointments to these institutions and work pace of those who have been appointed provoked serious discussions. Regional courts of justice and judicial police offices were not established in 2012; however, new provisions allowed access by individuals to the Constitutional Court as of September 23, 2012. The government could not meet the schedule and complete the constitution-making process at the end of the year. Nevertheless, this process has been considered as a significant experience and the society has never given up hope of a new constitution. Given developments such as the Uludere incident and explosion at an ammunition storage facility in Afyonkarahisar, impunity of security personnel remains a serious concern. There have been significant improvements in the Kurdish issue, freedom of expression, freedom of religion, freedom of association and assembly, prisons, womens rights, childrens rights, torture and maltreatment, rights of the disabled, minorities and refugees among others. Notwithstanding there are still serious unresolved problems. In 2013 framework laws pertaining to discrimination, hate speech and hate crimes which define above-cited notions in line with international standards should be enacted and deterrent sanctions for these kinds of crimes should be imposed.

YILMAZ ENSAROLU, Director, Law and Human Rights, SETA Foundation YAVUZ GTRK, Research Assistant, SETA Foundation HSEYN KIRMIZI, Research Assistant, SETA Foundation CEM DURAN UZUN, Researcher, SETA Foundation

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