TABLE OF CONTENTS

1........... Introduction. 4

1.1........ Preface. 4

1.2........ Context 4

1.3........ Relations between the EU and Turkey. 4

2........... Political criteria and enhanced political dialogue. 6

2.1........ Democracy and the rule of law.. 7

2.2........ Human rights and the protection of minorities. 18

2.3........ Regional issues and international obligations. 35

3........... Economic criteria. 37

3.1........ The existence of a functioning market economy. 37

3.2........ The capacity to cope with competitive pressure and market forces within the Union. 41

4........... Ability to take on the obligations of membership. 43

4.1........ Chapter 1: Free movement of goods. 43

4.2........ Chapter 2: Freedom of movement for workers. 46

4.3........ Chapter 3: Right of establishment and freedom to provide services. 46

4.4........ Chapter 4: Free movement of capital 47

4.5........ Chapter 5: Public procurement 48

4.6........ Chapter 6: Company law.. 50

4.7........ Chapter 7: Intellectual property law.. 50

4.8........ Chapter 8: Competition policy. 52

4.9........ Chapter 9: Financial services. 52

4.10...... Chapter 10: Information society and media. 53

4.11...... Chapter 11: Agriculture. 55

4.12...... Chapter 12: Food safety, veterinary and phytosanitary policy. 56

4.13...... Chapter 13: Fisheries. 57

4.14...... Chapter 14: Transport policy. 58

4.15...... Chapter 15: Energy. 60

4.16...... Chapter 16: Taxation. 62

4.17...... Chapter 17: Economic and monetary policy. 63

4.18...... Chapter 18: Statistics. 64

4.19...... Chapter 19: Social policy and employment 64

4.20...... Chapter 20: Enterprise and industrial policy. 67

4.21...... Chapter 21: Trans European Networks. 68

4.22...... Chapter 22: Regional policy and coordination of structural instruments. 69

4.23...... Chapter 23: Judiciary and fundamental rights. 70

4.24...... Chapter 24: Justice, freedom and security. 75

4.25...... Chapter 25: Science and research. 79

4.26...... Chapter 26: Education and culture. 80

4.27...... Chapter 27: Environment and climate change. 82

4.28...... Chapter 28: Consumer and health protection. 84

4.29...... Chapter 29: Customs Union. 85

4.30...... Chapter 30: External relations. 86

4.31...... Chapter 31: Foreign, Security and Defence Policy. 87

4.32...... Chapter 32: Financial control 89

4.33...... Chapter 33: Financial and budgetary provisions. 91

1. Introduction 1.1. Preface

Following the conclusions of the Luxembourg European Council in December 1997, the Commission has reported regularly to the Council and the Parliament.

This report on progress made by Turkey in preparing for EU membership largely follows the same structure as in previous years. The report:

briefly describes the relations between Turkey and the Union;

analyses the situation in Turkey in terms of the political criteria for membership;

analyses the situation in Turkey on the basis of the economic criteria for membership;

reviews Turkey’s capacity to take on the obligations of membership, that is the acquis expressed in the Treaties, the secondary legislation and the policies of the Union.

This report covers the period from October 2011 to September 2012. Progress is measured on the basis of decisions taken, legislation adopted and measures implemented. As a rule, legislation or measures which are being prepared or awaiting parliamentary approval have not been taken into account. This approach ensures equal treatment across all reports and permits an objective assessment.

The report is based on information gathered and analysed by the Commission. Many sources have been used, including contributions from the government of Turkey, the EU Member States, European Parliament reports[1] and information from various international and non-governmental organisations.

The Commission draws detailed conclusions regarding Turkey in its separate communication on enlargement[2], based on the technical analysis contained in this report.

1.2. Context

The Helsinki European Council of December 1999 granted Turkey the status of candidate country. Accession negotiations with Turkey were opened in October 2005.

The Association Agreement between Turkey and the then EEC was signed in 1963 and entered into force in December 1964. Turkey and the EU formed a customs union in 1995.

1.3. Relations between the EU and Turkey

The Positive Agenda endorsed by the Council in December 2011 was launched. It aims to support and to complement the accession negotiations through enhanced cooperation in a number of areas of joint interest: political reforms, alignment with the acquis, dialogue on foreign policy, visas, mobility and migration, trade, energy, counter terrorism and participation in Community programs. Eight working groups aimed at encouraging alignment with the acquis were set up and six of them had their first meeting. The Commission will assess whether Turkey has met the benchmarks and inform Turkey and the Member States accordingly.

The Council invited the Commission to take steps towards visa liberalisation as a gradual and long-term perspective, in parallel with the signing of the readmission agreement between Turkey and the EU which was initialled in June. It is now crucial that Turkey signs the readmission agreement to allow for a proper roadmap to be finalised, effectively starting the process.

With a view to Turkey’s further development as a potential energy hub and given the common challenges it shares with the EU, Turkey and the Commission also decided to enhance their cooperation on a number of important energy issues.

To prepare for accession negotiations, Turkey’s readiness to start negotiations on individual chapters was assessed on the basis of screening reports. Out of a total of 33 screening reports, nine are pending in the Council while one has yet to be delivered.

So far, negotiations have been opened on 13 chapters (Science and research; Enterprise and industry; Statistics; Financial control; Trans-European networks; Consumer and health protection; Intellectual property law; Company law; Information society and media; Free movement of capital; Taxation; Environment; and Food safety, veterinary and phytosanitary policy), one of which (Science and research) was provisionally closed. The December 2006 Council decision[3] remains in force.

The enhanced political dialogue between the EU and Turkey has continued. Political dialogue meetings were held at ministerial level in March and June 2012 and at political directors’ level in February 2012. These meetings focused on the main challenges faced by Turkey in terms of the Copenhagen political criteria and reviewed the progress made towards fulfilling Accession Partnership priorities. Foreign policy issues relating to regions of common interest to the EU and Turkey, such as North Africa, the Middle East, Western Balkans, Afghanistan/Pakistan and the Southern Caucasus, were also regularly discussed. Turkey has become increasingly active in its wider neighbourhood and is a leading regional player. The Council acknowledged the influential regional role of Turkey in supporting reform, including with regard to recent developments in North Africa. Turkey has also been vocal on Syria, condemning strongly and repeatedly the regime’s violence against civilians and providing vital humanitarian assistance to nearly 100,000 Syrians who fled the country. A number of high-level visits to the European institutions took place during the reporting period.

Turkey decided to freeze its relations with the Presidency of the Council of the EU during the second half of 2012 and not to attend meetings chaired by the Cyprus EU Presidency. The European Council expressed serious concerns with regard to Turkish statements and threats and called for full respect for the role of the Presidency of the Council, which is a fundamental institutional feature of the EU provided for in the Treaty.

Progress on the reform priorities is encouraged and monitored by the bodies set up under the Association Agreement. The Association Committee met in April 2012 and the Association Council in June 2012. Eight sectoral sub-committee meetings have been held since November 2011.

The multilateral economic dialogue between the Commission, EU Member States and Candidate Countries in the context of pre-accession fiscal surveillance continued, including a meeting at ministerial level in May in Brussels.

The EU-Turkey Customs Union continues to boost bilateral trade between the EU and Turkey, which totalled € 120 billion in 2011. Turkey is the EU’s sixth biggest trading partner while the EU is Turkey’s biggest. A bit less than half of Turkey’s total trade is with the EU and almost 75% of foreign direct investment flows in Turkey, with a strong high-technology component, comes from the EU. However, Turkey is not implementing the Customs Union fully and maintains legislation that violates its commitments under the Customs Union. As a result, several trade issues remain unresolved. A number of Turkey’s commitments on removing technical barriers to trade remain unfulfilled, in areas such as import licences, restrictions on imports of goods from third countries in free circulation in the EU, State aid, enforcement of intellectual property rights, requirements for the registration of new pharmaceutical products and discriminatory tax treatment. The Commission is launching an external evaluation to assess the strengths of the Customs Union as implemented so far, its weaknesses (or limitations) and the opportunities arising from its possible modernisation. The EU urged Turkey to remove all remaining restrictions on the free movement of goods, including on means of transport regarding Cyprus, and to implement the Customs Union fully.

As regards financial assistance, € 856 million have been earmarked for Turkey from the Instrument for Pre-accession Assistance (IPA) for 2012. In line with the Multiannual Indicative Planning Document (MIPD) for 2011-2013 importance has been given to further advance a sector-based approach which aims to better focus assistance on political priorities. Support is focused on institutions directly concerned by political reforms in the judiciary and law enforcement services, on adoption and implementation of the acquis in priority areas and on economic, social and rural development. In addition, Turkey is benefiting from a series of regional and horizontal programmes under IPA.

IPA assistance is subject to decentralised management, which means that it is managed by the Turkish authorities following an accreditation process carried out by the Commission. In 2012 progress was made with regard to strengthening the institutional framework for IPA Components as the accreditation process has been finalised for the Operating Structures in the areas of Regional Competitiveness and Human Resources Development programmes. Nevertheless, delays in the implementation of IPA assistance continued to occur and Turkey needs to further strengthen its administrative capacity to address weaknesses in adopting the sector approach in programming, to speed up the implementation process, to improve the quality of programmes and projects and to avoid loss of funds.

Support to civil society continues with the implementation of previously programmed EU financial assistance for civil society capacity building and civil society dialogue between Turkey and the EU, both under the national programme and the Civil Society Facility.In parallel an impact assessment of EU-Turkey Civil Society Dialogue was launched to draw conclusions for future assistance in this area.

Turkey actively participates in the following EU Programmes and Agencies: the Seventh Research Framework Programme, Customs 2013, Fiscalis 2013, the European Environment Agency, the Competitiveness and Innovation Framework Programme (including the Entrepreneurship and Innovation Programme and the Information Communication Technologies Policy Support Programme), Progress, Culture 2007, Lifelong Learning and Youth in Action. IPA funds are used to meet part of the costs of participation in most of these programmes. Turkey has not yet completed ratification for the agreement on its participation in the European Monitoring Centre for Drugs and Drug Addiction.

2. Political criteria and enhanced political dialogue

This section examines progress made by Turkey towards meeting the Copenhagen political criteria, which require stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities. It also monitors compliance with international obligations, regional cooperation and good neighbourly relations with enlargement countries and Member States.

2.1. Democracy and the rule of law

Work on a new constitution started and a democratic and participatory process was put in place. The rest of political life was characterised by limited dialogue and frequent tensions.

Trials of the alleged deep-state criminal network Ergenekon and the ‘Sledgehammer’ trial concerning an alleged coup plan continued. In the ‘Sledgehammer’ trial a first instance court on 21 September sentenced a total of 324 suspects (out of 365), including three former army commanders, to 13-20 years on charges of attempting to remove or prevent the functioning of the government through force and violence. The Court handed down mass verdicts. The judicial process is on-going. In the Ergenekon case, according to official data, the number of defendants has risen to 279, of whom 65 are under arrest. The landmark trial of the 1980 coup perpetrators, made possible by amendments to the constitution in 2010, began in April 2012. Investigations into military intervention in politics, including the 28 February ‘Postmodern Coup’ of 1997 followed. The armed forces’ former chief of staff was arrested in January 2012 on charges of attempting to overthrow the government and of membership of a terrorist organisation.

Concerns persisted over the rights of the defence, lengthy pre-trial detention and excessively long and catch-all indictments, leading to significantly enhanced public scrutiny of the legitimacy of these trials. Offering a chance to strengthen confidence in the proper functioning of Turkey’s democratic institutions and the rule of law, these cases have been overshadowed by real concerns about their wide scope and the shortcomings in judicial proceedings. Moreover, they tend to contribute to the polarisation of Turkish politics.

Judicial proceedings need to be speeded up to ensure the rights of the defence and to promote transparency in these cases. Investigations tend to expand rapidly; the judiciary accepts mainly evidence collected by the police only, or supplied by secret witnesses.

In July 2012, 404 active-duty military personnel were involved in on-going court cases as suspects, 207 of whom were in detention, among whom a former Chief of General Staff.

The Kurdish issue remains a key challenge for Turkey’s democracy. A meeting was held between the Prime Minister and the leader of the main opposition party CHP on the initiative of the latter, looking for opportunities to make progress on the Kurdish issue. There was no follow-up. The 2009 democratic opening, aimed at addressing amongst others the Kurdish issue, was not followed through.

Turkey suffered a significant increase in terrorist attacks by the PKK, which is on the EU list of terrorist organisations. The attacks were strongly condemned by the EU.

The investigation into the Union of Communities of Kurdistan (KCK), the alleged urban wing of the PKK, significantly expanded. Increasing numbers of BDP-affiliated Kurdish politicians, locally elected mayors and members of municipal councils were detained, adversely affecting regional and local democracy.

The killing of 34 civilians in Uludere (Şırnak) in a military air strike in December 2011, and the absence of a transparent public inquiry into the events, also damaged confidence. There has been no discussion of political responsibility.

Due attention needs to be paid to upholding the rule of law in the anti-KCK investigation and to ensuring that an effective and transparent public inquiry into the Uludere air strike takes place. Revision of the constitution provides an opportunity to address a number of long-standing problems in Turkey, in particular the Kurdish issue.

Constitution

Work on a new constitution started with the setting up of a Constitution Conciliation Committee, following inter-party agreement on equal representation and a decision to avoid setting preconditions for the substance of a new text. The committee is composed of three members from each of the four political groups in parliament. Its working principles reflect a commitment to inclusiveness and consultation and provide for unanimity in decision-making and termination of the committee’s mandate if any one party withdraws.

The Conciliation Committee held public consultations with a broad range of stakeholders between November 2011 and April 2012 to receive the views of political parties not represented in parliament, of state bodies, professional associations, trade unions and non-governmental organisations. For the first time ever, representatives of non-Muslim minorities were officially received by parliament. Members of the committee also took part in public events around Turkey organised by civil society platforms. A website was set up to gather written opinions, returning over 25,000 contributions. An abundance of local and national civic initiatives also ensured lively debate among citizens and in the media.

However, it is unclear what the follow-up of the committee’s work will be. The current Constitution (Article 175) only provides for amendment of the existing text. There are some limits on transparency, with submissions to the committee by civil society and others removed from or not published on the internet.

Regarding the substance of the constitution, the key challenges to consensus include views on the separation of powers, state-society-religion relations and the Kurdish issue (citizenship, use of the mother-tongue, and decentralisation). The BDP was the only political party to take a firm position when it presented a detailed note on the fundamental rights and freedoms chapter in July. The possibility of introducing a presidential or semi-presidential system of government was debated.

Further progress in implementing the 2010 constitutional amendments has been limited. The law on civil servants’ trade unions was amended to include provisions on their right to collective bargaining, while laws on collective bargaining, strikes and lockouts for private sector employees and the establishment and duties of the Ministry of Justice, Protection of Personal Data and military justice are still pending.

Overall, positive steps have been taken in terms of work on a new constitution. A democratic and participatory process has been put in place, albeit with some limitations on transparency. The new constitution should cement the stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities and address long-standing problems, in particular the Kurdish issue. Maintaining a spirit of compromise and ensuring the broadest possible consultation remain key for the legitimacy of a new constitution. Further progress in implementing the 2010 constitutional amendments has been limited.

Parliament

The new parliament convened on 1 October 2011 with all parties represented, following a protracted oath-taking crisis over the courts’ refusal to release eight MPs-elect from pre-trial detention. Work on political reforms and the parliament’s ability to perform its key functions of law-making and oversight of the executive continues to be hampered by the persistent lack of dialogue and spirit of compromise among political parties.

The CHP proposed a legislative amendment to the Code on Criminal Procedures to set the MPs-elect free; it was not supported by the majority. An initiative of the Speaker of the parliament to seek consensus among the four political groups on a possible legal solution to the issue did not produce results. Courts rejected the petition of the MP’s elect for release on probation pending trial, submitted further to the adoption of the third judicial reform package in July.

The overall scope of parliamentary immunity remains wide, except in cases concerning MPs freedom of expression, which are subject to a restrictive interpretation of the Constitution (in particular Article 14). This continues to be an issue of concern. A total of 740 requests by prosecutors for the lifting of parliamentary immunity are pending, concerning a total of 101 members of parliament, the majority concerning the BDP-bloc. A BDP-affiliated MP-elect, whose conviction to two years imprisonment for a speech pronounced 6 years ago was upheld by the Court of Cassation, risks permanently losing his seat once the Parliament speaker sets in motion the applicable procedures following such a ruling.

Insufficient preparation and consultation prior to the adoption of key legislation triggered strong criticism. This included the new education law, a law on caesarean section deliveries, a law granting immunity from judicial scrutiny to intelligence officers and public officials assigned specific tasks by the Prime Minister and the abolition of the Serious Crimes Courts.

Regarding the legislative framework, a law to facilitate out-of-country voting— targeting around 2.5 million Turkish voters residing mainly in the EU — was adopted. No further important changes were made to the electoral system. The 10% national threshold for obtaining seats in parliament remains the highest among Council of Europe member states. There has been no progress in aligning the law on the closure of political parties or laws on the financing of political parties and election campaigns with European standards.

Concerning the functioning of parliament, the representation of all mainstream political views following the June 2011 elections and its lead role in work on a new constitution increased the profile of the parliament. An ad hoc committee was set up by consensus among the four main political groups to investigate all coups in the history of the Republic; further parliamentary committees were created to probe the 28 February ‘Postmodern Coup’ and the alleged state violence in Tunceli (Dersim) in 1937-38, and to inquire into the Uludere incident in December 2011.

The Human Rights Inquiry Committee heard numerous experts including prominent Kurds while examining human rights violations linked to terrorism and the fight against terrorism (through the Sub-Committee on Investigating Violations of Right to Life within the Scope of Acts of Terrorism and Violence).

Several important pieces of legislation were adopted, in particular laws on the protection of family and prevention of violence against women, probation, collective bargaining for civil servants, the Ombudsman Institution and the national human rights institution. Nevertheless, in none of these cases did improvements fully bring the necessary alignment with the acquis or with European standards. The EU Harmonisation Committee remains an auxiliary committee with a limited mandate and ability to scrutinise legislation.

The parliament’s role in addressing key policy challenges continues to be limited. Further efforts are needed to achieve systematic consultation with civil society and other stakeholders throughout the process. There was no progress in improving the parliament’s capacity to monitor performance and audit public expenditure, including defence expenditure, despite the improvement in the overall legal framework with the entry into force of the new Law on the Turkish Court of Accounts (TCA) in 2011.

The law on the administrative organisation of parliament was amended in December 2011, partly to transfer responsibility for the parliament’s security from the military to the police. A proposal to set up a parliamentary legislative academy to strengthen expertise was approved. However, more comprehensive reform of the rules and procedures was abandoned, including key elements such as the introduction of planning for the legislative agenda and strengthening the oversight role of the committee system. Few of the capacity concerns identified by the 2010 Parliament/SIGMA peer review have so far been addressed. [4]

Overall, the parliament’s involvement in addressing key policy challenges improved on a few selective topics. However, proper functioning of the parliament, including the parliamentary committees, based on dialogue among all parties, has yet to be ensured. Despite improvements, capacity constraints remain, in particular with regard to public financial management of military expenditure. Due attention needs to be paid to reform of the legislative framework, particularly the laws on elections and political parties and parliament’s rules and procedures, to strengthen parliament’s ability to perform its key tasks including oversight of the executive. Consultation of civil society remains the exception rather than the rule.

President

The President stressed the need for a new constitution and expressed concern over the arrest of journalists, maintaining a conciliatory role across Turkey’s political spectrum in carrying out his functions.

The January 2012 Law on Presidential Elections and the June Constitutional Court ruling on the same issue ended a long-time controversy over the mandate of President Gül. Accordingly, the incumbent president’s term in office is seven years and he is eligible for re-election. The term of office of the new President — to be directly elected in 2014 — will be five years, renewable for one additional term.

Government

In its Annual Plan for 2012 and its Medium-Term Programme for 2012-2013 the government committed itself to further democratisation and political reforms through work on a new constitution intended ‘to meet the aspirations and demands of a modern democracy and represent the interests of all citizens of Turkey’. Judicial reform and the normalisation of civilian-military relations remain priorities of the government.

The government continued to reiterate its commitment to EU accession and frequently criticised the political stalemate in the accession negotiations. The ministerial Reform Monitoring Group met twice.

In a significant symbolic gesture in November 2011, the Prime Minister expressed readiness to account for crimes carried out by the state in the predominantly Kurdish Alevi region of Tunceli (Dersim) in 1937-38.

However, there has been no discussion of political responsibility regarding the Uludere incident and rhetoric on a new government strategy for the Kurdish issue has not translated into progress towards a political solution. (See Situation in the east and south-east)

Key legislation was adopted with insufficient preparation and consultation, triggering strong criticism.

Members of the government reacted virulently to criticism voiced by the media or civil society, and brought court cases on a number of occasions, for instance when criticised for supposed nationalist tendencies.

There was little progress on devolving powers to local government. Administrative decentralisation has not been addressed; in fact, decree-laws issued in 2011 provide for the re-centralisation of some powers, mainly in the fields of land use planning and urban renewal. City councils, designed to encourage citizens’ participation in local government, functioned effectively in only a limited number of cities.

There was no progress on removing administrative tutelage and allowing the use of languages other than Turkish in the provision of public services as recommended by the Council of Europe’s Congress of Local and Regional Authorities, and the courts ruled inconsistently on the use of more than one language by municipal authorities. Despite several non-prosecution and acquittal decisions, judicial proceedings against mayors and municipal councils for the use of languages other than Turkish in the provision of services were reported. The Ministry of the Interior provisionally suspended 55 local government representatives, including the elected mayors of Van, Şırnak, Silopi, İdil, Uludere and Cizre, alongside several members of municipal and provincial assemblies detained in anti-KCK operations. In one case – Siirt – a mayor’s dismissal was suspended following the entry into force of the third judicial reform package (See Situation in the east and south-east)

Overall, the government committed itself to further democratisation and political reforms through work on a new constitution. However, key legislation was presented and adopted with insufficient preparation and consultation. In incidents such as the Uludere killings of civilians, calls on the authorities for effective and swift investigation and a transparent public inquiry have not been met. Local government in the south-east suffered from the detention of numerous local politicians. Further efforts are needed on administrative decentralisation.

Public administration

After consultation with the European and other Ombudsmen the Law on the Ombudsman Institution was adopted on 14 June. The law provides that the Institution is answerable to parliament and that no one shall issue instructions to it. The Ombudsman Institution has a Head Ombudsman and a maximum of five Ombudsmen, a secretary general and staff, and a separate budget. Local offices throughout the country can be established. The Head Ombudsman is elected by parliament in up to four rounds of voting; in the fourth, he or she is elected by simple majority. Implementation of this provision and, in particular, the choice of the first Head Ombudsman is crucial for the credibility of the Institution. The Ombudsman Institution examines complaints and makes suggestions concerning the functioning of the administration with respect to the rule of law and human rights. However, it does not have the right to conduct inquiries on its own initiative. Its mandate covers administrative acts of the Turkish Armed Forces and excludes their military acts. Implementation of this provision is crucial: This relates in particular to who decides on what falls under the Institution’s remit, and on which basis. The law as it stands does not set out any decision-making process of the Ombudsman Institution, but leaves the matter to a regulation to be adopted by its Board. It is essential for the authority and independence of the institution that this decision-making process leaves the final say with the Head Ombudsman.

A comprehensive civil service reform aiming to improve public human resources management and ensuring merit-based advancement is still needed. A decree law of 2011 allows temporary and contract staff to be granted civil service status at a similar rank. It carries the risk of circumventing recruitment procedures, politicising the civil service and weakening the merit system. The increased ministerial powers introduced in August 2011 over the independent regulatory authorities remained, and in at least one instance — in relation to the Energy Directive — run counter to EU legislation.

Administrative simplification and work on providing basic public services online (e-government) continued. A large number of regulations on administrative simplification were adopted in April 2012. However, no progress was made with developing regulatory impact assessments with a view to increasing the quality of legislation. In particular, no regulatory impact assessment was conducted prior to the adoption of certain key legislation, including the education reform of March 2012. There was an increasing tendency to draft and adopt legislation without appropriate consultation of civil society and other stakeholders.

Almost all implementing legislation relating to the revised Turkish Court of Accounts (TCA) Law was adopted. This strengthened external audit. However, further efforts are needed to implement the TCA Law. In particular, parliament needs to ensure follow-up of TCA audit reports. The July 2012 amendments to the law on the TCA seriously curtailed the powers of the TCA and jeopardize the independence and effectiveness of the TCA audit and control. Implementation of the Law on Public Financial Management and Control continued, with the introduction of strategic planning and performance budgeting. All line ministries and major public agencies prepared performance programmes and accountability reports. However, such planning activities need to be better coordinated with the budget. Additional efforts are required to strengthen the capacity of strategy development units and to implement strategy documents. The internal audit system is not effective and continued to suffer from confusion between the objectives, roles and responsibilities of internal audit and inspectorate functions. Additional internal audit staff needs to be recruited.

Overall, progress has been made in legislative reforms with regard to public administration. The establishment of an Ombudsman’s office is an important step in safeguarding the rights of citizens and ensuring that public administration is accountable. External audit and public financial management and control have been strengthened, but recent amendments to the TCA law raise serious concerns regarding the independence and effectiveness of the TCA audit and control. Administrative simplification continued. However, comprehensive civil service reform will require greater political support.

Civilian oversight of security forces

There was further consolidation of civilian oversight of the security forces, and the General Staff generally abstained from exerting direct or indirect pressure on political issues. In January 2012, the national security course given by military officers was removed from the secondary school curriculum. Nonetheless, in January the Chief of General Staff criticised the use of the Kurdish language in public education.

Implementation of the law providing legal remedies to earlier dismissals from the Armed Forces continued.

Ending a lengthy trial process marred by disputes over jurisdiction, the Third High Criminal Court in Van sentenced two non-commissioned officers and a PKK informant to 40 years in prison in the ‘Şemdinli case’ relating to the bombing in 2005 of a bookstore allegedly owned by a former PKK member.

The Counter-Terrorism Coordination Board established under the Undersecretariat of Public Order and Security was convened twice. An Intelligence Assessment Centre was set up in March 2012 to strengthen intelligence sharing and cooperation between civilian and military security institutions.

Progress was made regarding external audits of security institutions under the Turkish Court of Accounts Law, which provides for ex post auditing of military expenditure. A regulation adopted in August made publication of the TCA external audit reports related to security, defence and intelligence institutions subject to parliamentary approval. The regulation also introduces limitations for the publication of these reports on grounds of confidentiality. The Parliamentary Petition Commission requested a special commission of experts to inspect and audit the Turkish Armed Forces Assistance Centre. The General Staff periodically published figures on staffing in the armed forces.

In the ‘Sledgehammer’ trial, 323 retired and active duty military personnel, including three former army commanders, were found guilty by a first instance court of attempting to remove or prevent the functioning of the government through force and violence. Judicial investigations into the 1980 coup and the 28 February ‘Postmodern Coup’ of 1997 were initiated. Eight political parties, including the AKP, CHP and MHP, as well as the Council of Ministers, many non-governmental organisations and nearly 340 individuals requested to become co-plaintiffs in the 1980 coup case.

However, the transparency and accountability of the security sector remained limited. The defence budget was disclosed to the public in a highly aggregated manner with significant off-budget military expenditure not detailed.

In August 2012, the Supreme Military Council decided that 40 officers currently under arrest as part of on-going investigations should retire.

The 2012 amendments to the Law on the National Intelligence Organisation introduced a requirement that the Prime Minister authorise investigations involving members of the intelligence services and public officials to whom the Prime Minister has assigned ‘special tasks’. This provides arbitrary immunity for certain public officials, is open to inconsistent interpretation and excludes legal review.

The Law on Provincial Administrations, used as the legal basis for military operations, was not amended to give civilian authorities broader oversight of military operations. Civilian oversight of the Gendarmerie’s law enforcement activities, in particular, was insufficient. An Independent Law Enforcement Complaints Agency has yet to be set up to investigate complaints of human rights abuses, ill-treatment and wrongdoing by and in Turkish law-enforcement agencies.

The duality between the civilian and military court systems continued. Military judges and prosecutors’ independence was limited by the continued authority of military commanders over them. The legal provisions on the composition and powers of the Supreme Military Council need to be reformed, particularly the legal basis for promotions, to ensure appropriate civilian control. The Chief of the General Staff continued to report to the Prime Minister rather than the Minister of Defence. No change was made to the Internal Service Law for the Turkish armed forces, which defines the duties of the military and contains an article leaving the military significant potential scope for intervention in politics.

Overall, there was further consolidation of civilian oversight of the security forces. The introduction of parliamentary oversight of the defence budget was positive, although this, too, is limited in practice. The General Staff generally refrained from exerting direct or indirect pressure on political issues. Several symbolic steps have been taken towards further democratisation of civil-military relations. Further reforms, particularly of the military justice system and civilian oversight of the Gendarmerie, are needed.

Judicial system (See also Chapter 23 – Judiciary and fundamental rights)

There was some progress in the area of the judiciary.

As regards the independence of the judiciary, the High Council of Judges and Prosecutors established its Strategic Plan 2012-2016. It also continued to fully carry out its functions, publishing 34 circulars related to the work of judges and prosecutors, and organised in-service training and meetings with stakeholders, encouraging their participation in discussions and workshops on the judiciary as a whole.

However, criticisms of the legislation on the High Council, including of the role given to the Minister of Justice and to the Under-secretary of the Ministry, have not been addressed. There was also concern that decisions to suspend prosecutors in the Deniz Feneri case reflected pressure from the executive.

Yargi Sen, a trade union of judges and prosecutors was closed in a case launched by the Governorate of Ankara, on the grounds that the union contravened domestic legislation. European standards provide that judges should be free to form and join professional organisations whose objectives are to safeguard their independence, protect their interests and promote the rule of law.

With regard to impartiality, the individual application procedure introduced by the 2010 constitutional amendments and the Law on the Constitutional Court of 2011 entered into force in September 2012. Anyone who claims that his or her fundamental rights have been violated can apply to the Constitutional Court if other domestic remedies have been exhausted.

The Ministry of Justice is drafting, in cooperation with the Council of Europe, a Human Rights Action Plan, based on the case law of the European Court of Human Rights and expected to address issues raised in judgements of the Court where Turkey was found to violate provisions of the European Convention on Human Rights. The Ministry and the High Council have also conducted, and plan to continue to deliver, human rights training for judges and prosecutors.

However, criticisms of existing legislation on the Constitutional Court have not been addressed. There are still legal provisions and practical arrangements for courthouses and during trials regarding judges, prosecutors and the defence which do not guarantee ‘equality of arms’. In December, members of the Court of Cassation decided to bring a lawsuit against the leader of the main opposition party for his critical remarks about the newly elected members of the court being under the control of the executive. In April, the president of the Constitutional Court stated that the establishment of a new ‘pro-tutelary’ judiciary should not be allowed.

Judges and prosecutors have failed to apply international human rights agreements when they conflict with domestic law, even though the Constitution clearly states that such agreements have precedence. This failure was criticised by the Presidents of the High Courts. In response, the High Council established new criteria for assessing judges and prosecutors which will reward respect for the provisions of the European Convention on Human Rights and the European Court of Human Rights judgments.

The Regulation on the Judicial Police adopted in 2005 under Article 167 of the Criminal Procedure Code has not yet been implemented in accordance with European standards and there are no judicial police units attached to prosecution offices. Prosecutors rely on police units working for the Ministry of the Interior and have to develop their capacity to guide police investigations effectively and keep strict control of police activity.

Access to Court of Cassation decisions is limited, which hinders understanding and awareness of case law. Spokespersons have been appointed at fifteen prosecution offices and courts; however, the system is in its infancy and has yet to reach the point of providing adequate information to the public.

With regard to the efficiency of the judiciary, amendments to the Laws on the Court of Cassation and the Council of State aiming at tackling their backlog of cases started to generate positive results, although the backlog is still considerable. The number of cases before the Court of Cassation was roughly 0.88 million in July 2012, down from 1.12 million in July 2011. As regards the Council of State, the number of pending cases in June 2011 and June 2012 was approximately the same; however, the number of finalised cases increased considerably during the same period. As regards first-instance courts, there were approximately 1.34 million criminal cases pending at the end of 2011, down from 1.40 million at the end of 2010. Similarly, there were 1.11 million civil cases pending at the end of 2011, roughly the same as at the end of 2010, while administrative courts had roughly 170,000 cases pending at the end of 2011, a decrease of 30,000 as compared to those at the end of 2010.

A third judicial reform package was adopted in July 2012. It includes amendments to a number of laws and aims amongst others at accelerating judicial procedures. A Law on Mediation, which should ease the burden on the judiciary, entered into force in June 2012.

The 2012 budget for the judiciary amounted to approximately € 2.69 billion, roughly 0.44% of Turkey’s GDP. The total number of judges and prosecutors at the end of 2011 was 9,456[5]. Women constitute approximately 24% of the judiciary and are underrepresented in prosecutorial and managerial positions. The number of judges and prosecutors increased to 8.30 per 100,000 people, up from 7.66 in 1997. Judges seconded to the Ministry of Justice have been appointed to the Council of Europe, the European Court of Human Rights and Turkey’s permanent representations in Strasbourg and Brussels to represent the Turkish authorities to these institutions.

However, the Ministry and the High Council have yet to develop benchmarks to monitor and assess the performance of the courts, the length of court proceedings and the efficiency and effectiveness of the judicial system.

The third judicial reform package relates also to the Turkish criminal justice system. The specially authorised courts established under (former) Articles 250 – 252 of the Criminal Procedure Code were abolished; instead, regional serious crimes courts were set up under Article 10 of the Anti-Terror Law that will hear the same criminal cases. These courts have specialised judges whose only task is to decide on preventive measures during the investigation phase.

Under the new legislation it will no longer be possible for courts to ban publications; put time limits on defendants and prosecutors in the context of judicial processes; expel the accused or the defence from any future or all hearings on the grounds of behaviour deemed to disturb court order and discipline; limit to one the number of defence lawyers while the suspect’s statement is being taken or during custody; issue notifications through mass media depending on the urgency of the case. The upper three-year limit for judicial control was lifted: under former practice, only those accused for crimes carrying a maximum prison sentence of less than three years could be put under judicial control rather than prison before or during trial. New forms of judicial control were introduced.

Article 101 of the Criminal Procedure Code now clearly provides that (a) a strong suspicion that the offence has been committed; (b) the existence of grounds for arrest[6]; and (c) the proportionality of the arrest with a warrant must all be explicitly documented and explained to the accused. This clarifies the general obligation of judges to reason their opinion. It is not clear, however, whether these provisions apply also to the high-profile cases such as Ergenekon, Sledgehammer, Cage, Oda TV etc., the bulk of which fall under Article 100 of the Criminal Procedure Code. Finally, investigations, criminal proceedings and execution of sentences for offences committed before 31 December 2011 are postponed. This provision applies to offences carrying a maximum prison sentence of five years and relates to opinions expressed publicly provided the crime is not repeated in three years. Overall, these are all steps in the right direction of guaranteeing procedural rights.

The crimes falling under the scope of the abolished legislation (former Article 250 of the Criminal Procedure Code), were broadly investigated and tried without prior permission, irrespective of the status of the accused as government official, ensuring thus equality before the law. Under the revised Article 10 of the Anti-terror Law, however, prior approval of the authorities for government officials is now needed including for crimes committed in the framework of an organisation to gain illegal economic advantage; launder money; or produce or traffic drugs.

A number of provisions have remained the same in the third judicial reform package. This includes the permitted length of pre-trial detention, which remains ten years, an excessively long period in particular if pre-trial detention covers only the period up to the first instance decision. There is conflicting interpretation of the Turkish Court of Cassation on this issue, i.e. whether the pre-trial detention covers the period up to the first instance decision or the final one, which needs to be addressed.

Finally, and more importantly, the third package fails to sufficiently revise problematic areas related to the administration of justice and protection of fundamental rights; it does not address issues related to definitions of criminal offences under either the Criminal Code or the Anti-terror Law that are at the source of a number of problems of the Turkish criminal justice system.

In practice, concerns have been expressed as regards the criminal justice system. Some of these concerns focused on the defence’s limited access to the prosecution file, which did not allow allegations against the accused to be challenged effectively. Other concerns related to decisions to arrest or continue to detain suspects on grounds which were almost always considered to be inadequate because they only repeated the wording of the Criminal Procedure Code. Pre-trial detention was also longer than was strictly necessary in the public interest. Alternatives to pre-trial detention were not considered. Turkey lacks an effective and genuinely adversarial domestic remedy that could offer applicants the opportunity to challenge the lawfulness of their pre-trial detention with reasonable prospects of success. On many occasions there has been criticism of the quality of the indictments and of the indictment process. Leaks of information, evidence and statements continued to raise concerns. In some cases there were reports that cross-examination in criminal trials was not carried out properly. Judges and prosecutors have been given no training in cross-examination. The practical impact of the third judicial reform package, including on pre-trial detention, needs to be further assessed.

The regional courts of appeal which, by law, should have been in operation by June 2007 have not been established yet.

Revision of the Justice Ministry’s 2009 Judicial Reform Strategy, whose objectives were achieved to a large extent, continues, with the participation of all stakeholders, the Turkish legal community and civil society.

Overall, some progress has been made in the area of the judiciary. Legislation has been amended to improve the efficiency of the judiciary and address the increasing backlog of the courts. The third judicial reform package, adopted in July, while failing to sufficiently address problematic areas in the administration of the Turkish criminal justice system, constitutes a step in the right direction. The 2009 Judicial Reform Strategy is being revised. However, further efforts are needed with regard to the independence, impartiality and efficiency of the judiciary, including the criminal justice system and the large backlog of serious criminal cases. The participation rate of women in the judiciary needs to be improved.

Anti-corruption policy (See also Chapter 23 – Judiciary and fundamental rights)

In line with the National Anti-Corruption Strategy, the Executive Committee for Increasing Transparency and Fighting Corruption continued to work on proposals to revise anti-corruption rules. This contributed to changes in the area of incrimination and the financing of presidential candidates. However, further legislative changes are needed to complete the technical work of the Executive Committee. The role of civil society also needs to be strengthened.

The third judicial reform package, adopted in June 2012, includes amendments to provisions on corruption in the Criminal Code, redefining and extending the scope of bribery as an offence, in line with certain recommendations of the Group of States against Corruption (GRECO) on ‘Incrimination’. However, other recommendations of the Third Round Evaluation Report on ‘Incrimination’ and ‘Transparency of Party Funding’ have been implemented only partially or not at all. There has been no progress in limiting the immunity of Members of Parliament (MPs) and senior public officials in corruption-related cases, nor in establishing objective criteria for lifting their immunity.

There has been some progress on political financing. The 2011 amendment to the law on the Constitutional Court, which authorised the Court of Accounts to audit technical aspects of political parties’ finances and to send its audit reports to the Constitutional Court for final decision, reinforced auditing capacity with regard to political party financing. The two biggest parties represented in Parliament published their finances, declaring their income and expenditure in detail.

The Law on Presidential Elections adopted in January 2012 introduced strict rules on transparency of financing for presidential candidates during elections. It also covers prohibited funding sources, donation ceilings, and candidates’ obligations to disclose their assets and to submit specified financial information during the campaign period to the Supreme Election Board for examination within specified timeframes.

However, remaining legal loopholes relating to political financing continued to be a concern. The auditing of political parties remained weak and there was no legal framework for auditing election campaigns or the financing of individual candidates. There was no legislation on campaign financing other than for political parties. Political party candidates, independent candidates for election and elected representatives were not subject to the regulations on financial transparency that apply to political parties. There were not enough checks on assets declared by political figures and public officials.

3707 civil servants working for central and local government received training on ethics between October 2011 and May 2012. However, no progress was made on extending codes of ethics to academics, military personnel or the judiciary.

A track record of investigation, indictment and conviction in corruption cases has not yet been established.

In April 2012, the Ankara Serious Crimes Court accepted an indictment against 20 suspects in a fraud case concerning the Deniz Feneri charity on charges of forgery, abuse of authority and the participation of a public servant in forgery. There was no charge of major organised criminal activity. The prosecutors removed from the investigation in August 2011 were put on trial, accused of forgery of official documents and misuse of authority. This raised concerns about judicial independence.

A corruption investigation involving 130 officials of the İzmir Metropolitan Municipality was started. In January 2012, the İzmir Specially Authorised Chief Public Prosecutor demanded a sentence of 397 years in prison for İzmir’s mayor on 33 charges, including rigging state tenders, abuse of office, bribery, forgery, and embezzlement. The indictment also accused the mayor of forming and leading a criminal organisation, covering up crimes and protecting criminals. Several other corruption cases against municipalities are ongoing.

Overall, limited progress was made on fighting corruption, with some developments on incrimination and transparency in the financing of political parties. Effective implementation of the National Anti-Corruption Strategy requires greater political engagement and broader civil society participation. Political financing needs to be more transparent. The broad scope of parliamentary immunity remains a shortcoming in this area. A track record of investigation, indictment and conviction in corruption cases has not yet been established. There are concerns about impartiality in the processing of anti-corruption cases.

2.2. Human rights and the protection of minorities (See also Chapter 23 – Judiciary and fundamental rights)

Observance of international human rights law

With regard to international human rights instruments Turkey ratified the Council of Europe’s Convention on preventing and combating violence against women and domestic violence on 14 March 2012. Three additional Protocols to the European Convention on Human Rights have not yet been ratified[7].

During the reporting period, the European Court of Human Rights (ECtHR) delivered judgments on 160 applications finding that Turkey had violated rights guaranteed by the ECHR. The number of new applications to the ECtHR went up for the sixth consecutive year, with 8.010 new applications having been made since September 2011. Most concern the right to a fair trial and protection of property rights. In September 2012, 16.641 applications regarding Turkey were pending. Turkey has abided by the majority of rulings, but has not executed all the judgments. Based on the Kaplan v. Turkey ruling, a draft law setting up a commission on long trials has been submitted to the parliament. The draft law aims to provide a domestic remedy for cases in which the right to be tried within a reasonable time is breached. In some cases, rulings have been awaiting follow-up by Turkey for several years. The EU has called on Turkey to enhance its efforts to implement all the judgements of the ECtHR.

In the Cyprus v. Turkey case, the issues of missing persons and restrictions on the property rights of Greek Cypriots displaced or living permanently in the northern part of Cyprus remain pending. In a number of other cases, including Xenides-Arestis v. Turkey, Demades v. Turkey, and Varnava and others v. Turkey, Turkey has yet to fully execute the decision, including paying the ‘just satisfaction’ awarded by the ECtHR to the applicants. Following the Grand Chamber Decision of 5 March 2010 in the Demopoulos v. Turkey case, 3275 applications from Greek Cypriot owners have been lodged with the Immovable Property Commission (IPC), 1776 of them during the reporting period. So far, around 270 cases have been concluded, mainly with friendly settlements and the IPC paid GBP 81,292,225 in compensation (€ 101,706,400).

Regarding promotion and enforcement of human rights, the training of public officials, judges, public prosecutors and police officers continued. The Department of Human Rights in the Ministry of Justice launched a website that provides translations of relevant judgments of the ECtHR.

In line with its amended mandate the parliament’s Human Rights Inquiry Committee can now take the lead on certain draft laws, proposals and bylaws submitted to the parliament, such as the law on the National Human Rights Institution. Following this amendment to its mandate, 23 legislative proposals were referred to the Committee.

The Committee received nearly 4000 petitions in the reporting period, most of which concerned allegations of unfair trial or ill-treatment. It adopted ten reports.

Legislation on an Ombudsman Institution has been adopted (See Public administration). Independent monitoring bodies have not yet been set up in line with the Optional Protocol to the Convention Against Torture. Legislation establishing an anti-discrimination and equality board has not been adopted.

Parliament adopted a law setting up the Turkish National Human Rights Institution in June. The law does not fully comply with the UN Paris principles, in particular as regards the independence of the proposed body. Moreover, the text was not discussed with stakeholders, nor does it sufficiently reflect the concerns and proposals of national and international experts.

The number of high-profile cases, individual criminal proceedings and investigations launched against human rights defenders went up, mostly under terrorism-related legislation. Serious concerns remain as regards the broad definition of terrorism under the Anti-Terror Law. (See Situation in the east and south-east and Freedom of expression)

Overall, some progress was made on the observance of international human rights law, notably through the efforts of the Ministry of Justice and the parliamentary Human Rights Inquiry Committee. However, important reforms are needed to strengthen human rights structures and the number of criminal proceedings brought against human rights defenders is a matter of concern.

Civil and political rights

The government pursued its efforts to ensure compliance with legal safeguards for the prevention of torture and ill-treatment. The downward trend in the incidence and severity of ill-treatment by law enforcement officials continued. Forensic doctors’ reports or reports by universities or independent institutions are now recognised as proof by some courts, in addition to the reports of the Forensic Medicine Council under the Ministry of Justice.

However, excessive use of force during arrest and outside official detention places, as well as in official places of detention and prisons, continues to be a matter of concern. There have been several reports of disproportionate use of force by law enforcement bodies, including fatal shootings.

Turkey has ratified the Optional Protocol to the Convention Against Torture, but has not established a National Preventive Mechanism (NPM) in line with the requirements of the Optional Protocol.

Treatment of migrant detainees in detention centres needs to be further improved.

Regarding the fight against impunity, the Council of State confirmed a court order to the Ministry of the Interior to pay reparations to 16 youths detained in Manisa Province on 26 December 1995 and tortured in the Manisa Security Directorate.

In general, efforts to fight impunity for human rights violations have been insufficient. Prompt, thorough, independent and effective investigation of allegations of torture committed by security and law enforcement officers is often lacking. Moreover, there is no exception from the statute of limitations for torture cases.

Several trials are ongoing concerning allegations of ill-treatment of conscientious objectors in military prisons. The parliamentary Human Rights Inquiry Committee criticised practices in military prisons and stated that the punishment of soldiers should be decided by an independent judicial authority and not by a senior military officer. An ECtHR judgement on this issue remains to be executed.

Law enforcement bodies regularly launched counter-cases against people who alleged torture or ill-treatment. In many instances such cases were given priority by the courts. The absence of prompt, thorough, independent and effective investigations by courts leads to extended trials. Law enforcement officers found guilty of torture, ill-treatment or fatal shootings continued to receive short or suspended sentences.

Politicians from all parties criticized the appointment of a police chief, who had faced charges of torture and rape in the past, to a key position in the anti-terror department in Istanbul. The public debate on this was extensive.

The lack of a judicial police force leads to administrative investigations into allegations of torture or ill-treatment being carried out by fellow police officers, putting at risk the impartiality of the investigation.

There is no comprehensive approach to missing persons, the exhumation of mass graves or thorough and independent investigations into alleged cases of extrajudicial killings by security and law enforcement officers. Mass graves discovered in the south-east have not been adequately investigated.

Overall, there has been a downward trend in torture and ill-treatment in places of detention; however, allegations of excessive use of force continue to be a matter of concern, and there has been little progress on tackling impunity. There is a significant backlog of judicial proceedings, with priority given in several well-documented cases to counter-allegations lodged by the security forces.

Reform of the prison system continued. The case management model developed by the Ministry of Justice to improve rehabilitation services is in operation in five rehabilitation centres for convicts and detainees. The Ministry of Justice started an investigation into allegations of ill-treatment in the Adana Pozantı juveniles’ prison. Implementation of the tripartite protocol between the Ministries of Health, Justice and the Interior began in November 2011, to prevent law enforcement officers being present at medical examinations of prisoners. Its implementation needs to be monitored closely to ensure that it is in line with European standards.

The number of judgments including probation sentences increased, and an amendment of the Law on Conditional Release resulted in a significant number of prisoners being released.

Prison overcrowding remained a serious concern, with 41% of the prison population awaiting final sentencing. The prison system does not have adequate resources. Ill-treatment allegations continue to cause concern, including the tape-recording of prisoners, excessive use of solitary confinement, and excessive strip searches of inmates and visitors.

The number and quality of juvenile correctional facilities remains insufficient. Following the allegations of ill-treatment in Adana Pozantı juveniles’ prison, minors were transferred to a facility in Ankara far from their families. Children, especially girls, are not held separately from adults in all prisons.

The standards for monitoring national prisons are not in line with those of the UN. Prison monitoring boards are not effective and various prisons have no dedicated boards. The boards have neither the right nor the resources to monitor prisons effectively. Some provincial boards carried out random visits, but their reports have not led to changes in practice.

A general statement of principles on prisoners’ rights, incorporating the principles of the European Convention of Human Rights, is lacking. Excessive restrictions continued regarding the availability of newspapers, magazines and books in prisons. The practice adopted in relation to open and closed visits is of concern. Reports of restrictions on the use of the Kurdish language during visits and exchanges of letters persist. Practice varies between prison administrations. A complete overhaul of the complaints system in prisons to make it genuinely available to all prisoners should be carried out, in accordance with the Optional Protocol to the Convention Against Torture.

Many sick and terminally ill convicts lack proper medical treatment. Complaints that conditions in F-type high-security prisons cause physiological and psychological damage have been reported.

Overall, prison overcrowding remains problematic, with a serious impact on sanitation and other physical conditions. A reform of the complaints system in prisons is needed.

There has been limited improvement in access to justice. A Ministry of Justice webpage provides information on legal matters and brochures provide information on the procedures to follow. Bar associations and other civil society organisations also contributed to citizens’ awareness of their rights in terms of access to justice.

However, there is no overall strategy for legal aid. The financial resources allocated are not sufficient and the low fees for legal aid lawyers are not comparable with fees paid by defendants in ordinary cases. This can lead to a decrease in the quality of the services provided. Due to the low fees and the lack of effective monitoring, lawyers appointed by the bar associations do not always provide an effective defence for the accused. The current system gives rise to concerns and needs to be revised.

Public awareness of legal aid is limited in rural areas and among disadvantaged groups. Legal aid is not accessible for a large proportion of prison inmates, women and juveniles. Lack of effective protection still prevents victims of domestic violence from obtaining justice. Misguidedly, defendants continue to believe that requesting a lawyer implies guilt.

Overall, limited progress has been made on access to justice. The scope and quality of legal aid is inadequate. There is no effective monitoring mechanism that would remedy long-standing problems.

As regards freedom of expression, a number of journalists were released pending trial after excessively long periods spent in pre-trial detention. The third judicial reform package prohibits the seizure of written work before publication. It also eases restrictions on media reporting of criminal investigations. There continues to be room for debating some topics perceived as sensitive, such as the Armenian issue or the role of the military, and opposition views are regularly expressed.

However, these reforms fall short of a significant improvement regarding freedom of expression. The increasing incidence of violations of freedom of expression raise serious concerns, and freedom of the media continued to be further restricted in practice. The increasing tendency to imprison journalists, media workers and distributers fuelled these concerns.[8] The European Court of Human Rights received a large number of applications concerning violations of freedom of expression by Turkey.

A large number of cases were brought against writers, academics and journalists writing and working on the Kurdish issue, but also scholars and researchers. Several left-wing and Kurdish journalists were arrested on charges of engaging in propaganda for terrorism, others remained in prison. (See Situation in the east and south-east) More than 2.800 students are in detention, mostly for terrorism related charges. The legal framework on organised crime and terrorism is still imprecise and contains definitions which are open to abuse, leading to numerous indictments and convictions. Moreover, its interpretation by prosecutors and courts is uneven and is not in line with the European Convention on Human Rights or the case-law of the European Court of Human Rights. Turkey needs to amend its penal code and anti-terror legislation to make a clear distinction between the incitement to violence and the expression of nonviolent ideas.

The application of Articles 6 and 7 of the Anti-Terror Law in combination with Articles 220 and 314 of the Turkish Criminal Code leads to abuses; in short, writing an article or making a speech can still lead to a court case and a long prison sentence for membership or leadership of a terrorist organisation.

High-level government and state officials and the military repeatedly turn publicly against the press and launch court cases. On a number of occasions journalists have been fired after signing articles openly critical of the government.

All of this, combined with a high concentration of the media in industrial conglomerates with interests going far beyond the free circulation of information and ideas, has a chilling effect and limits freedom of expression in practice, while making self-censorship a common phenomenon in the Turkish media.

Though very few cases have been initiated on the basis of Article 301 of the Turkish Criminal Code, implementation of two ECtHR judgments on Article 301 are pending.

Website bans of disproportionate scope and duration continued. Since May 2009 the Telecommunications Communication Presidency (TİB) has published no statistics on banned sites. Court cases are ongoing against the You Tube video-sharing website and other web portals. The Law on the Internet, which limits freedom of expression and restricts citizens’ right to access to information, needs to be revised. An Information Technologies and Communication Board (ICTA) decision introducing optional internet filters entered into force. It is essential that it is implemented in line with European standards with regard to the right to receive and impart information and ideas without interference by public authorities.

The Supreme Board of Radio and Television (RTÜK) issued warnings to television stations and imposed fines on them, in particular for representing superstitious beliefs, denigrating morals and national values and the protection of the family, representing obscenity and praising terrorism.

Overall, the increase in violations of freedom of expression raises serious concerns, and freedom of the media was further restricted in practice. The legal framework, especially as regards organised crime and terrorism, and its interpretation by the courts, leads to abuses. Together with pressure on the press by state officials and the firing of critical journalists, this situation has led to widespread self-censorship. Frequent website bans are a cause for serious concern and there is a need to revise the law on the internet.

As regards freedom of assembly, 1 May demonstrations took place in a peaceful atmosphere throughout the country. Several activities including the ‘Armenian Genocide Commemoration Day’ organised by several civil society groups and intellectuals to commemorate the 1915 events also proceeded peacefully.

However, in general there was a shortfall in the implementation of the constitutional right to hold demonstrations and meetings. Excessive administrative restrictions on freedom of assembly persist, such as substantial prior notification requirements for demonstrations, and sometimes the confinement of demonstrations to designated sites and dates that are unsuitable. The Newroz (New Year) ceremonies in the South East were restricted to only one day. On several occasions there were scenes of violence, disruption of demonstrations and disproportionate use of force by security forces against demonstrators — especially in rallies related to the Kurdish issue, students’ rights, the environment, activities of the Higher Education Board (YÖK) and trade union rights. Two students were sentenced to eight years in prison for displaying a banner protesting against tuition fees during a rally attended by the Prime Minister.

In some provinces, press statements by non-governmental organisations and human rights defenders were subject to fines for violating Law No 2911 on demonstrations. Others were fined repeatedly for disobeying orders under the Law on Misdemeanours.

Allegations that members of the security forces have used excessive force have not always been prosecuted or investigated thoroughly. (See section on impunity) Many court cases were launched against human rights defenders and civil society representatives who exercised their right to peaceful assembly. Human rights defenders also faced prosecution and legal proceedings on charges of terrorist propaganda during demonstrations and protest meetings and following their attendance at press conferences.

Freedom of association legislation is broadly in line with EU standards. However, the need to change the legal framework with regard to political parties and trade unions was not met. There were examples of restrictive interpretation of legislation vis-à-vis associations and harassment of their leaders[9]. Freedom of association for trade unions is compromised in practice by police raids, as happened in June with the arrests of more than 70 trade union activists, including the President of KESK, a civil service confederation.

Civil society organisations (CSOs) continued to face fines, closure proceedings, and administrative obstacles to their operation. A decree adopted in November 2011 giving additional authority to the Ministry of Health and creating a Board of Health Professions was criticised by the Turkish Medical Association and the World Medical Association for reducing professional autonomy. Two foreign civil society organisations were refused the right to establish in Turkey.

The trade union for civilian staff working for the military, SIME-SEN, is facing a court action to close it down, as civil servants employed in the Ministry of Defence and Turkish Armed Forces are not allowed to create or join trade unions.

Legislative and bureaucratic obstacles impeding the financial sustainability of CSOs persisted. The collection of domestic and international funds was difficult and bureaucratic procedures cumbersome. There are numerous complaints of discrimination when applying for public benefit status for associations and in getting permission to raise funds.

Overall, regarding freedom of assembly and association, the picture was mixed. Where demonstrations were not authorised there were cases of violence and disproportionate use of force by the security forces, especially but not only in relation to the Kurdish issue. The constitutional right to freedom of assembly and association appears to be interpreted at times in an overly restrictive manner. There is a need to revise the law on demonstrations and meetings, to investigate allegations against members of the security forces for use of excessive force and to prosecute where appropriate. Fundraising rules remains restrictive and discretionary. There were no developments regarding legislation on political parties.

Concerning freedom of thought, conscience and religion, freedom of worship continues to be generally respected. Ecumenical Patriarch Bartholomew celebrated in August, for the third time after almost nine decades, the Divine Liturgy of the Dormition of Theotokos at the Sumela Monastery in the Black Sea province of Trabzon. In September the third religious service since 1915 was held at the Armenian Holy Cross Church on the Akhdamar island in lake Van. A number of crypto-Armenians have started to use their original names and religion. Police protection has been provided to a number of church leaders and several churches receive police protection during services. According to the Turkish authorities the Ecumenical Patriarch is free to use the title ‘Ecumenical’. However, the Patriarchate has received no indication from the authorities to this effect and still uses the title ‘Fener Rum Patrikhanesi’ in its letterhead in Turkish.

As regards conscientious objection, some progress was made on addressing repeated prosecution and conviction, and towards introducing a civilian alternative to military service under certain circumstances. Military courts started to issue rulings in line with judgments of the European Court of Human Rights.

A court of first instance in Ankara rejected a request to ban an association which helped build cem houses, Alevi places of worship. However, this decision was reversed in June by the Court of Cassation. The case has been brought to justice by the Ministry of the Interior. New religious education textbooks containing information on the Alevi faith have been prepared by the Ministry of National Education for the academic year 2012-2013.

Implementation of the August 2011 decree law and the October Regulation amending the February 2008 Law on Foundations continued. (See section on property rights).

However, the 2007 Zengin v. Turkey ECtHR judgment on religious culture and ethics classes, which remain compulsory in primary and secondary schools, has yet to be implemented. Children who did not attend were subject, in several instances, to discrimination. No alternatives were provided for students exempted from these classes.

Non-Muslim communities — as organised structures of religious groups — continued to face problems due to their lack of legal personality, with adverse effects on property rights, access to justice, the ability to obtain work, residence permits for foreign clergy and fundraising. The relevant 2010 Council of Europe Venice Commission recommendations have yet to be implemented.

Restrictions on the training of clergy remain. Neither the Turkish legislation nor the public education system provide for private higher religious education for individual communities. Despite announcements by the authorities, the Halki (Heybeliada) Greek Orthodox seminary remained closed. The Armenian Patriarchate’s proposal to open a university department for the Armenian language and clergy remained pending for a fifth year. The Syriac Orthodox community can provide only informal training outside any officially established schools.

As regards participation in religious elections, in contradiction with European standards Turkish and foreign nationals are not treated equally in terms of their ability to exercise their right to freedom of religion by participating in the life of organised religious communities.

Personal documents such as identity cards include information on religion, leading to some discriminatory practices or harassment by local officials of persons who converted from Islam to another religion and thereafter sought to amend their ID cards. The 2010 ECtHR ruling that indication of religious affiliation on identity cards is in breach of the Convention has yet to be implemented.

Concrete follow-up of the opening made in 2009 to the Alevis is lacking. Cem houses were not officially recognised and Alevis experienced difficulties in establishing new places of worship. Alevis were concerned by the marking of many houses of Alevi citizens in a number of provinces and by incidents against them. Complaints were submitted to the prosecutors’ offices by Alevi associations; judicial and administrative investigations are continuing. A demand to open a cem house in the parliament was rejected on the grounds that Alevi MPs could go to the mosque. Several commemoration ceremonies by Alevis were prevented by police, some through the use of force as was a demonstration against the closure of the Madimak court case. Some Alevis encountered job discrimination in the civil service.

Non-Muslim religious communities reported frequent discrimination, administrative uncertainty and numerous obstacles to establishing or continuing to use their places of worship. Implementation of zoning legislation by local authorities was inconsistent, resulting in arbitrary refusals to issue construction and renovation permits for places of worship. In November, the DG for Foundations declared the Hagia Sophia Museum in Iznik a mosque.

Especially in south-eastern provinces, renewal of foreign clergy permits was denied, without adequate explanation and in an inconsistent manner. Clear criteria for refusals to renew residence and/or work permits need to be established.

Alevis and non-Muslim religious communities have to pay electricity and water bills, whereas the State budget covers such expenses for mosques.

Non-Muslim religious communities reported several instances of hate crimes. Anti-Semitism and hate speech in the media, including in TV series and films, has not been punished. There is a culture of intolerance of minorities. The court case concerning the killing of three Protestants in Malatya in April 2007 continued; allegations of links to the Ergenekon organisation are being reviewed by the court following arrests in 2011. No clear conclusion has been reached yet regarding the killing of father Santoro, a Catholic priest, in Trabzon in 2006. As regards the killing of bishop Padovese in Iskenderun in 2010, the case is continuing.

Missionaries are widely perceived as a threat to the integrity of the country and to the Muslim religion. A classified report by the MIT (National Intelligence Organisation) on missionary activities in east and south-east Anatolia focusing on citizens of Kurdish origin, using discriminatory language against Christian churches and missionaries, was revealed in the media in November. A Diyanet five-year strategy plan also aims to follow and evaluate missionary activities inside and outside the country.

Implementation of the May 2010 prime ministerial circular instructing all relevant authorities to pay due attention to the problems of non-Muslim Turkish citizens was not always consistent.

ECtHR judgments on Turkey regarding conscientious objectors refusing to serve in the military on religious or other grounds have yet to be implemented. Turkey is the only country of the Council of Europe that does not recognise the right to conscientious objection for conscripts.

Overall, there was limited progress on freedom of thought, conscience and religion. There has been some progress on conscientious objection in terms of application of the case law of the European Court of Human Rights. Dialogue with the non-Muslim religious communities continued. However, people professing faith in minority religions or indeed no faith continued to be discriminated against, and were subject to threats from extremists. A legal framework in line with the ECHR has yet to be established to ensure that all non-Muslim religious communities and the Alevi community can function without undue constraints.

Economic and social rights (See also Chapter 19 – Social policy and employment)

Steps have been taken to improve legislation regarding respect for women’s rights and gender equality. The Law on the Protection of Family and Prevention of Violence against Women adopted in March aims to protect family members and those in relationships outside marriage from violence. The procedures for urgent cases are generally positive, as was the inclusive consultation exercise undertaken by the authorities with civil society. A National Action Plan to combat Violence against Women (2012-2015) was adopted by the Ministry for Family and Social Policies. The plan focuses on five areas: legislation, awareness raising and change of attitudes, empowerment of women and preventive services, health care and cooperation among stakeholders.

The Ministry of Family and Social Policies and the Gendarmerie signed a protocol providing for Gendarmerie staff to be trained in the prevention of violence against women and gender equality issues with a view to supporting victims of violence. The Capital Markets Board issued a statement stipulating that at least one board member of publicly traded companies should be female. The Ministry of Family and Social Policies signed a protocol with the Ministry of Labour and Social Security aimed at increasing female employment and labour participation rates, including those of women subject to violence.

The Parliamentary Committee on Equal Opportunities between Men and Women has issued 20 opinions on draft legislation since being set up.

However, there is still room for the Committee to be more involved in mainstreaming gender equality via the legislative process, in monitoring the implementation of laws and circulars issued on gender equality and in engaging with women’s organisations. Gender equality, combating violence against women, including honour killings, and early and forced marriages remain major challenges for Turkey.

Certain last-minute amendments to the Law on the Protection of Family and Prevention of Violence against Women raised concern. Also, substantial efforts are needed to turn this new law, and earlier legislation, into political, social and economic reality. A law on caesarean sections was adopted with insufficient preparation and consultation with civil society, and in particular without hearing the views of women’s organisations. In the debate that preceded this law and a similar debate on abortion, government statements neglected the overall need for increased respect for women’s rights in practical terms.

Women’s participation in the labour market remains low overall, although it has increased slightly. Women are mostly employed as unpaid family workers with no social protection apart from that afforded by other family members. Provision of childcare facilities for working women remained an issue; work on a regulation on parental leave did not proceed. Efforts to increase labour market flexibility do not take into account the need to avoid gender-based labour market segmentation.

The number of women in politics and at senior level in the administration remained very small. Women were underrepresented in the management of trade unions. Several female trade union activists were detained and arrested prior to international women’s day.

The government did not respond to demands by the women’s movement to revise the Law on Political Parties and the Law on Elections so as to make the inclusion of women legally binding on political parties.

Women’s negative portrayal in the media and a male-dominated discourse continued to be a concern.

Detailed statistics on incidents of violence against women, including murder, are not available. Certain court judgments in cases of violence against women raised concern: the rulings attempted to justify violence inflicted on women and sometimes on juveniles with reference to the victim’s family background and attitude.

In some cases, police officers tried to convince domestic violence victims to return to their alleged abusers rather than help them pursue their complaints. There were a number of cases in which the victim of violence sought help in vain from the authorities and ended up being killed. Awareness-raising and training for members of the judiciary and law enforcement officers on new legislation is needed. The capacity of family courts has not increased. As regards domestic violence, the ECtHR judgment in the Opuz v. Turkey case was not implemented. The issue of early and forced marriages remains a serious concern.

The government needs to proactively promote changes in stereotypes and in the perception of gender roles in all spheres. The sustainability of actions, policies and circulars on women’s rights and gender equality supported through national and international resources is critical.

Overall, steps have been taken to improve legislation regarding respect for women’s rights and gender equality. The Law on the Protection of Family and Prevention of Violence against Women is an improvement on previous legislation, protecting family members and those in relationships outside marriage from violence. The procedures for urgent cases are particularly positive, as was the inclusive consultation exercise undertaken by the authorities with civil society, even if NGOs are critical of certain last-minute amendments to the text. However, substantial efforts are needed to turn this new law, and earlier legislation, into political, social and economic reality. Legislation needs to be implemented consistently across the country. There is a need for greater involvement of and participation by women in employment, policy-making and politics. The issue of early and forced marriages remains a concern.

With respect to children’s rights, the ratio of children enrolled in pre-school education reached 44% for the 4-5 years age group, up 1% on the previous reporting period. Efforts to develop a national model for pre-school education services, with relevant quality standards, continued. The number of pre-school teachers increased by around 15%.

Primary and secondary school enrolment rates increased for the 2011-2012 educational year. The net school enrolment rate for the 6-13 years age group was 99.3%. Secondary school enrolment rates reached 67.4%, with the difference between enrolment rates for girls and boys falling to 2.5%. Mobile education services for girls were provided in several provinces, although coverage was limited. Optional courses are offered to secondary education students on living languages and dialects spoken in Turkey as of the academic year 2012-2013. The tendency towards de-institutionalisation of care services for children continued, with the introduction of a support scheme for family-based care.

The Ministry of Labour and Social Security has taken steps to combat child labour, especially in seasonal migrant agricultural work and hazelnut collection. An evaluation of the impact of such measures and an updated survey of the situation of child labour is needed.

However, regional disparities in school enrolment rates persisted, with low enrolment levels in certain provinces in the east of the country. Drop-out and absenteeism rates continued to be high among the children of seasonal agricultural migrant families and Roma families. An effective monitoring and inspection mechanism, covering all types of pre-school education and care services, has yet to be established.

Efforts to fight violence against children do not include an effective mechanism for monitoring and prevention. Awareness-raising efforts on the de-institutionalisation of care services for children were limited. The conditions and administrative capacity of child care institutions need to be improved.

There are little quantitative and qualitative data on child labour. Child labour in seasonal agricultural migrant families persisted despite efforts to improve the situation. There is a need to strengthen administrative capacity in this field and put in place an effective monitoring and inspection system covering the whole of the country.

Despite the June 2010 amendments to the Anti-Terror Law and other criminal legal provisions, juveniles were arrested in many instances on charges of membership of a terrorist organisation, facing heavy penalties. This happened in particular when juveniles resisted law enforcement officials or participated in demonstrations. Ill-treatment during questioning and admission to prisons was reported.

At the end of the reporting period, the total number of serious crimes courts for juveniles was 19, of which nine were operational. The total number of juvenile courts was 86, of which 67 were operational, despite the requirement of the Child Protection Law that courts should be established in all 81 provinces. In provinces where such courts do not exist, children were tried in serious crimes courts for adults.

As of end-July, 1,830 children aged between 12 and 18 were in prison. Of these, 190 were convicted whereas the rest were detained pending, or during trial. There were serious allegations of ill-treatment and sexual assault in Pozanti juvenile prison in Adana, which led to the move of all detainees to Ankara Sincan prison.

Overall, efforts are needed in all areas, including education, combating child labour, health, administrative capacity and coordination. In general, more preventive and rehabilitative measures need to be taken for juveniles. Children are not held in appropriate conditions and additional juvenile courts need to be created in line with current legislation.

Regarding the socially vulnerable and/or persons with disabilities, implementation of the Strategy Paper on Accessibility and the National Action Plan remained limited. A national monitoring mechanism in line with the UN Convention on the Rights of Disabled Persons and the corresponding optional protocol is still not in place. The principle of positive discrimination for the disabled is not properly reflected in concrete policy measures.

Home-based care services for the disabled and the elderly were expanded. A protocol was signed to promote entrepreneurship for people with disabilities. Efforts to increase employment in the public sector continued. However, the employability of people with disabilities in both the public and private sectors needs to be further promoted together with alternative employment methods and incentives for employers, and their access to finance needs to be increased.

Official and reliable data and research on persons with disabilities and mentally ill persons is lacking, which impedes informed policy-making. Difficulties in access to education, health, social and public services continued. Physical barriers to access to public buildings and all relevant facilities still exist. There is no comprehensive investment strategy to overcome this problem. Deadlines for mandatory compliance for public institutions to provide accessible services have been extended and postponed. Inclusive education practices need to increase in coverage and quality, in line with legislation. Private special education and rehabilitation centres have an important role in the current system, but there are deficiencies in the inspection, monitoring and evaluation system, raising doubts as to the centres’ effectiveness. In almost all centres, many children are enrolled (in order to receive government support), but do not actually attend the course. Inspections lack depth and do not cover the content of the services provided. Public awareness needs to be increased to fight prejudice against people with disabilities.

There is still no independent body to monitor and inspect mental health institutions.

Overall, services were expanded for the disabled and the elderly, but important efforts are still needed to protect socially vulnerable persons and persons with disabilities.

Comprehensive anti-discrimination legislation, including on the establishment of an anti-discrimination and equality board, is still lacking. A draft law is before the parliament. The relevant parliamentary committee amended the draft to remove references to discrimination on grounds of sexual identity or sexual orientation. The current legal framework is not in line with the EU acquis. There is discrimination against individuals along ethnic, religious, sexual identity and other lines.

Homosexuality is not a criminal offence in Turkey. However lesbian, gay, bisexual and transgender (LGBT) persons continued to suffer discrimination, intimidation and were the victims of violent crime. LGBT employees and civil servants have been fired on the grounds of sexual orientation. Other reported spheres of discrimination against LGBT individuals include access to housing and to health services (especially in the case of transgender persons). A number of court cases and judicial proceedings are in progress.

Violations of the right to life, torture, ill-treatment and cases of sexual assault that occurred against LGBTs in Turkey during 2011 have been reported. Shortcomings in the investigation and prosecution of crimes against people with a different sexual orientation or gender identity led to impunity for the perpetrators.

Articles of the Turkish Criminal Code on ‘public exhibitionism’ and ‘offences against public morality’ and also articles of the Law on Misdemeanours were widely used to discriminate against and to impose fines on LGBT people. The repeated application of the principle of ‘unjust provocation’ in favour of perpetrators of crimes against transsexuals and transvestites is a major concern. Court cases have been brought against LGBT human rights defenders who accused the police of arbitrary arrests and violence.

High-profile public figures repeatedly used negative stereotyping against LGBT persons. The internal rules of the Turkish armed forces continue to define homosexuality as a ‘psychosexual’ illness and to declare homosexuals unfit for military service.

Substantial government efforts are still needed to effectively protect vulnerable groups, including women, children, and lesbian, gay, bisexual and transgender individuals from societal abuse, discrimination and violence.

As regards labour and trade unions rights, legislation on trade unions and collective bargaining by civil servants was amended, leading to the first collective bargaining exercise in this sector. However, the new legislation is not fully in line with the EU acquis and International Labour Organisation conventions, especially with regard to the right to strike for public servants, the process of collective bargaining and dispute settlement, as well as restrictions on large categories of public servants to form and join trade unions. The draft law on collective labour relations, amending the legal framework for trade unions in the private sector, has not been adopted. In May the Law on Strikes was amended to prohibit strikes in the aviation sector. This takes Turkey’s labour legislation further from EU and ILO standards.

The limited labour rights granted by existing legislation have not always been available to employees, with several cases of dismissal apparently linked to union membership. There was continued state interference in unions’ internal affairs. Industrial action and demonstrations by trade unions were regularly restricted and on occasion broken up by the security services using force. Many unions and union activists faced police raids, criminal charges and imprisonment on allegations of ‘t