Brussels, 9.11.2005

SEC (2005) 1426

Turkey

2005 Progress Report

{COM(2005) 561 final}

{COM(2005) 559 final}

A. Introduction (...)3

1. Preface (...)3

2. Relations between the EU and Turkey (...)4

B. Criteria for membership (...)9

1. Enhanced political dialogue and political criteria (...)9

1.1 Democracy and the rule of law (...)10

1.2 Human rights and the protection of minorities (...)18

1.3 Regional issues (...)40

1.4 General evaluation (...)41

2. Economic criteria (...)43

2.1 Recent economic developments (...)43

2.2 Assessment in terms of the Copenhagen criteria (...)45

2.3 General evaluation (...)54

3. Ability to assume the obligations of membership (...)55

3.1 Chapters of the acquis (...)55

Chapter 1: Free movement of goods (...)55

Chapter 2: Freedom of movement for workers (...)59

Chapter 3: Right of establishment and freedom to provide services (...)60

Chapter 4: Free movement of capital (...)61

Chapter 5: Public procurement (...)63

Chapter 6: Company law (...)64

Chapter 7: Intellectual property law (...)66

Chapter 8: Competition Policy (...)68

Chapter 9: Financial Services (...)70

Chapter 10: Information society and media (...)74

Chapter 11: Agriculture and rural development (...)77

Chapter 12: Food safety, veterinary and phytosanitary policy (...)79

Chapter 13: Fisheries (...)82

Chapter 14: Transport policy (...)83

Chapter 15: Energy (...)85

Chapter 16: Taxation (...)89

Chapter 17: Economic and monetary policy (...)90

Chapter 18: Statistics (...)92

Chapter 19: Social policy and employment (...)94

Chapter 20: Enterprise and industrial policy (...)97

Chapter 21: Trans-European networks (...)100

Chapter 22: Regional policy and coordination of structural instruments (...)101

Chapter 23: Judiciary and fundamental rights (...)103

Chapter 24: Justice, freedom and security (...)110

Chapter 25: Science and research (...)114

Chapter 26: Education and culture (...)116

Chapter 27: Environment (...)118

Chapter 28: Consumer and health protection (...)121

Chapter 29: Customs union (...)124

Chapter 30: External relations (...)126

Chapter 31: Foreign, security and defence policy (...)127

Chapter 32: Financial control (...)131

Chapter 33: Financial and budgetary provisions (...)133

3.2 General evaluation (...)134

C. Accession Partnership: Overall assessment (...)137

STATISTICAL ANNEX (...)141

A. Introduction

1. Preface

Following the conclusions of the Luxembourg European Council in December 1997, the Commission has reported regularly to the Council and the Parliament on progress made by the candidate states in preparing for membership. This Progress Report succeeds the reports that the Commission has published on Turkey during the years 1998 to 2004.

In December 2004, the European Council stated that:

“The European Council welcomes the decisive progress made by Turkey in its far-reaching reform process and expressed its confidence that Turkey will sustain that process of reform[…]. Turkey sufficiently fulfils the Copenhagen criteria to open accession negotiations [...]. The European Council invites the Commission to present to the Council a proposal for a framework for negotiations with Turkey with a view to opening negotiations on 3 October 2005.”

The European Council in June 2005 referred to its conclusions on enlargement of December 2004 and highlighted the need to implement them fully.

On 3 October 2005 accession negotiations were opened with Turkey. When opening the negotiations the EU asserted that:

“The advancement of the negotiations will be guided by Turkey’s progress in preparing for accession, within a framework of economic and social convergence. […]Progress will continue to be closely monitored by the Commission, which is invited to continue to report regularly on it to the Council.”

The Commission has drafted the report in the light of this most recent confirmation of its reporting mandate

The structure of the report is largely the same as that used in previous years. The report:

–describes the relations between Turkey and the Union;

–analyses the situation in respect of the political criteria for membership;

–assesses Turkey’s situation and prospects in respect of the economic criteria for membership;

–reviews Turkey’s capacity to assume the obligations of membership, that is, the acquis as expressed in the Treaties, the secondary legislation, and the policies of the Union;

–briefly examines the extent to which Turkey has addressed the Accession Partnership priorities.

This report takes into consideration progress since the 2004 report. It covers the period to 30 September 2005. It looks at whether planned reforms referred to in the 2004 report have been carried out and examines new initiatives, and assesses the overall level of alignment in each of the areas under consideration.

As in previous reports, “progress” has been measured on the basis of decisions actually taken, legislation actually adopted and measures actually implemented. As a rule, legislation or measures which are in various stages of either preparation or Parliamentary approval have not been taken into account. This approach ensures equal treatment for all countries and permits an objective assessment of each country in terms of their concrete progress in preparing for accession.

The report draws on numerous sources of information. Turkey has been invited to provide information on progress made in preparations for membership since the publication of the last report. Additional sources have been: the information Turkey has provided within the framework of the Association Agreement, the national programme for the adoption of the acquis, and various peer reviews that have taken place to assess its administrative capacity in a number of areas. Council deliberations and European Parliament reports and resolutions have been taken into account in drafting the report. [1] The Commission has also drawn on assessments made by various international organisations, in particular the contributions of the Council of Europe, the OSCE, the international financial institutions, and non-governmental organisations.

2. Relations between the EU and Turkey

Recent developments in bilateral relations

The European Council in December 2004 decided to open accession negotiations with Turkey on 3 October 2005 and set out the framework and the requirements for starting accession negotiations with Turkey. Firstly, Turkey was to bring into force six pieces of legislation enhancing human rights and the functioning of the judiciary and secondly, Turkey was expected to sign the Adaptation Protocol extending its existing Association Agreement with the EU to all new Member States, including the Republic of Cyprus.

Fulfilment of these requirements by Turkey resulted in the opening of accession negotiations on 3 October 2005 as planned - EU-Turkey relations entered a new phase.

In addition to the accession negotiations, two other pillars are designed to provide assistance for Turkey in the pre-accession phase: Reinforce and support the reform process in Turkey and strengthen the political and cultural dialogue.

Therefore, the Commission has provided support and cooperation in order to underpin the political reform process in Turkey. The Commission has continued its regular monitoring of the Copenhagen political criteria - with frequent meetings in Ankara and Brussels. With this Report, the Commission also proposed to update the Accession Partnership. These revised partnerships provide updated priorities for the preparations of Turkey for accession and can be used as a yardstick to measure progress in the reforms. Turkey has developed a National Programme for the adoption of the acquis.

The enhanced political dialogue has continued under the Dutch, Luxembourg and United Kingdom presidencies. Among the items discussed were the political reforms in Turkey, human rights, Cyprus and the peaceful settlement of disputes. Views were also exchanged on wider international issues (see Chapter 31 – Foreign, security and defence policy).

In June 2005, the Commission adopted a communication on the civil society dialogue between the EU and Candidate Countries. This should help to promote dialogue between civil society, in a broad sense, in the EU and Turkey, in order to address issues and concerns relating to enlargement. This communication sets out a general framework on how to create and reinforce links between civil society in the EU and candidate countries. The civil society dialogue should contribute to encourage a societal debate around accession, with a view to allowing a wide participation and information of civil society during the enlargement process. The long-term objective of the dialogue is to prepare civil society from the EU and candidate countries for future enlargement. The dialogue will have a special focus on Turkey, as the state of mutual knowledge is particularly weak with that country and misconceptions and concerns more widespread.

The communication focuses on the broadest and the most inclusive definition of civil society, i.e. all society structures outside of government and public administration (but including local communities). Bilateral exchange projects, aimed at improving mutual knowledge and ensuring collaboration and exchange of expertise, will be a common pattern of projects to be funded. Targets will include NGOs - including women’s rights and equal opportunities organisations - professional organisations and business associations, youth, university, culture and the media. About EUR 40 million will be earmarked for civil society dialogue projects and Community programmes in 2006 for Turkey. The Commission also expects that the communication will encourage public and private institutions and civil society organisations both in the EU and in candidate countries to contribute to the dialogue and increase mutual links in the future

The Association Agreement has continued to work in a satisfactory manner. The Association Council met in April and an Association Committee meeting was held in March. The Joint Parliamentary Committee comprising representatives of Turkey and European Parliament met in February and in June. The Joint Consultative Committee with the Economic and Social Committee met in November 2004 and in June 2005. Eight subcommittees are operational.

The process of legislative scrutiny carried out in the framework of the sub-committees of the Association Agreement has continued. An enhanced programme of working groups, TAIEX seminars and technical meetings on specific subjects supplemented the work of the sub-committees.

The European Council in December 2004 welcomed Turkey's decision to sign the Protocol regarding the adaptation of the Ankara Agreement, taking account of the accession of the ten new Member States. In this light, it welcomed the declaration of Turkey that "the Turkish Government confirms that it is ready to sign the Protocol on the adaptation of the Ankara Agreement prior to the actual start of accession negotiations and after reaching agreement on and finalising the adaptations which are necessary in view of the current membership of the European Union.” The Commission presented the draft Protocol in May 2005. After agreement in the Council on the text the Protocol was signed in July. The Turkish authorities attached a declaration concerning relations with Cyprus. The European Union adopted a declaration on 21 September. The European Parliament decided to postpone the vote concerning its assent to the protocol in September 2005.

Despite the overall success of the Customs Union, there are a number of unfulfilled commitments by the Turkish side (see also chapters 1 - free movement of goods, 7 – intellectual property law, 8 - Competition Policy, 30 -external relations etc.). This applies in particular to technical barriers to trade, state aids, to the enforcement of intellectual property rights and to provisions which discriminate between EU and Turkish operators. Market access for foreign producers in several sectors, including alcoholic beverages is prevented through non tariff barriers and discriminatory treatment. Maintaining import licences is not compatible with the Customs Union, and these should be removed without delay. Turkey should resolve the existing disputes, either bilaterally, or by agreeing to refer the matter to the competent judicial institutions. Turkey has still not taken meaningful steps concerning the Customs Union obligations with regard to state aid. Finally, Turkey has not completed its alignment to the common external tariff. On a number of occasions, the EU urged Turkey remove all restrictions on the free movement of goods, including restrictions on means of transport.

Actions in these areas - combined with greater macro-economic stability - would enable a better exploitation of the potential of the Customs Union and would also contribute to the improvement of the investment climate, fostering foreign direct investment. The negotiations to extend the Customs Union in the area of public procurement and services seem to have lost their momentum, and no negotiations have taken place since 2003. In view of the importance of this issue for both parties, the EU hopes that negotiations can resume soon as soon as possible. Turkey's public procurement law should be aligned with the acquis with a view to ensuring non discriminatory treatment of EU bidders. Some of the required legislative changes include extending its scope of application, removing a large number of exemptions, avoiding discrimination against EC goods and suppliers and lifting the restrictions in competition and full transparency. On services, the main unsolved issues are the scope of the agreement, the type of service providers to be included and the timetable for liberalisation.

Concerning trade, the trade in agricultural products, following a series of consultations on adaptations to be made to the bilateral agricultural trade preferences (under Decision 1/98 of the EC-Turkey Association Council) to take account of EU enlargement in 2004, agreed minutes were signed by negotiators in April 2005. These changes will be implemented in 2006 by means of a new Association Council Decision.

Turkey continued to operate its long-standing ban on imports of live bovine animals, beef and other animal products, which in the view of the Community is not in line with Turkey’s international obligations and which deprives EU exporters of important trade concessions granted under Decision No 1/98 of the EC-Turkey Association Council. In April 2005, Turkey accepted to offer compensations to the EU for the market disruptions caused by the Turkish beef ban, while it remains in place. These compensations are currently being discussed in the way of a set of alternative concessions.

The share of the European Community (EU-25) in Turkey’s foreign trade has continued to increase in 2004, for a third consecutive year. Total trade in goods with the EU-25 in 2004 was 22 % up on 2003 and accounted for 50% of Turkey’s overall trade. In 2004, exports to the EU-25 were 21% up on 2003, accounting for 55% (EUR 27.6 billion) of Turkey’s total export sales. Its main industrial exports to the EU-25 were apparel, textiles, vehicles and automotive parts. Turkey’s main agricultural exports to the EU-25 were fruits, vegetables and nuts, which allowed Turkey to have surplus in trade of agricultural products. In 2004, imports from the EU-25 were up by 23% on 2003, accounting for 47% (EUR 36.5 billion) of Turkey’s total imports. Its main industrial imports were machinery, chemicals, iron and steel.

Currently there are two anti-dumping measures in place against products originating in Turkey on imports of respectively, steel ropes and cables, and of welded tubes and pipes. No new anti-dumping or anti-subsidy measures against Turkey have been imposed or new investigations initiated since 2004. Regarding safeguard measures (erga omnes), the proceeding on imports of farmed salmon (initiated in March 2004) was terminated in April 2005. A safeguard investigation on imports of frozen strawberries was opened in July 2005.

Community assistance

As regards grant assistance, the 2005 pre-accession financial assistance programme consists of a country programme and associated expenditure on multi-country programmes such as TAIEX or SIGMA, communication and management bringing the overall total to EUR 300 million. The key priorities for the 2005 programme, reflecting the Commission recommendation of October 2004 and the conclusions of the Brussels European Council meeting in December 2004, are: the political criteria, including some closely-related subjects in the sector of justice, liberty and security; economic and social cohesion, targeted on the poorest regions in Turkey, and focussing on strategic planning, support for the establishment of Regional Development Agencies in the priority NUTS II regions, and project preparation; implementation of the acquis, with projects being developed in the following sectors: Internal Market; Agriculture (veterinary controls); Environment; the 'network' sectors (Energy, Transport and Telecommunications); Social Policy; Statistics; EU-Turkey Political and Social Dialogue.

The 2005 programme has also addressed a number of cross cutting themes such as gender issues and strategic planning and project preparation, in order to ensure adequate absorption in future programmes; civil society development.

Turkey participates actively in the following Community programmes: Enterprise & SMEs, the 6th Framework Programme on Research, Combating Discrimination, Combating Social Exclusion, Gender Equality, Incentive Measures in the field of Employment, Community Action in the field of Public Health, eContent, Fiscalis 2007, Customs 2007 and IDA (Interchange of Data between Administrations). Turkey continues its participation in the European Environment Agency (EEA) as well as in the education programmes Socrates, Leonardo da Vinci and Youth and made preparations for its participation in Culture 2000 next year. Cooperation with the European Monitoring Centre for Drugs and Drug Addiction is continuing, while preparation of the relevant agreement for full participation is in its final stage. Discussions are under way on possible ways to establish cooperation between Turkey and the new European Aviation Safety Agency (EASA).

In light of the increased assistance budget, Turkey needs to further improve its capacity to manage and use these funds effectively. It is encouraged to establish the necessary institutions needed for the implementation of the IPA (Instrument for Pre-Accession Assistance), which is scheduled to come into force in 2007. Turkey should also make further progress towards extended decentralisation: this will necessitate paying close attention to good governance, and the introduction of an adequate system of Public Internal Financial Control. In order to avoid absorption capacity limitations in the coming years, an improvement in strategic planning is needed. Turkey should also improve the staffing and the institutional anchoring of the Turkish implementing agency (CFCU), as well as the coordination among the ministries involved in programming and implementation. The Union recalls the linkage between project financing and progress made in the harmonisation with the corresponding elements of the acquis. The EU welcomes the fact that the new Framework Agreement has been ratified recently, and urges Turkey to bring into force all the necessary secondary legislation needed for its implementation.

The Joint Monitoring Committee, in its meeting in January 2005, reviewed the status of the implementation of the Community assistance in Turkey on the basis of an independent evaluation report. This report concluded with an average rating (“barely satisfactory”). The report highlighted the general relevance of Community assistance and the expected positive impact of the programmes. It nevertheless also underlined shortcomings in relation to the efficiency and effectiveness of programme implementation, due to delays and contracting backlogs.

As regards lending, the Commission also continues to seek a high degree of complementarity between the pre-accession financial assistance programme and the on-going reform programmes supported by the international financial institutions, particularly the World Bank, in areas such as education, environment, health, agriculture, transport, regulatory reform and public procurement.

Total EIB lending in Turkey stands at EUR 3.6 bn, confirming the Bank’s commitment to support the country’s economic development and European integration through suitable long-term finance. For the period from 2004, and following the enlargement in May, the EIB's external lending mandate has been reviewed. Turkey is no longer included in the EuroMed II Lending Mandate but in a new geographical mandate – the South-eastern Neighbours mandate. Turkey is a full participant in the EIB's Facility for Euro-Mediterranean Investment and Partnership which provides technical assistance for the design of projects and reforms in different economic sectors.

Overall lending to Turkey is projected to increase significantly over the forthcoming period. The EU calls upon to Turkey to assist in the identification and development of viable project proposals, to enhance the planned increase in resources. The FEMIP support fund can assist in this process.

Twinning

One of the main challenges facing the candidate countries is the need to strengthen their administrative and judicial capacity to implement and enforce the acquis. As of 1998, the European Commission began to mobilise significant human and financial resources to help them with this process, using the mechanism of twinning administrations and agencies.

The twinning process makes the vast body of Member States’ public sector expertise available to the candidate countries through the long-term secondment of civil servants and accompanying short-term expert missions and training.

Furthermore, the candidate countries can draw on Member States’ expertise through "Twinning light", an exchange of expertise mechanism to support projects of limited scope.

Twinning is an important element under the 2004 programme, contributing to the results of 22 projects involving 12 Member States (France, Germany, UK, Spain, Austria, Greece, Finland, Netherlands, Sweden, Hungary, Slovakia and Lithuania). These span a broad range of sectors, the most numerous being in the area of Justice, Liberty and Security. In addition, twinning projects are planned in the fields of the internal market, agriculture, environment, transport, the financial sector (including financial control) and customs.

Negotiations and screening

In June 2005 the Commission presented a draft framework for accession negotiations, setting out the method and the guiding principles of the negotiations, in line with the December 2004 European Council conclusions. The framework was adopted by the Council of Ministers on 3 October 2005. The EU-Turkey Intergovernmental Conference met for the first time on 3 October 2005. In parallel, the Commission has launched the analytical examination of the acquis (screening) which forms the first phase of accession negotiations. This process allows candidate countries to familiarise themselves with the acquis and allows the Commission and the Member States to evaluate the degree of preparedness of candidate countries before deciding whether a chapter can be opened for negotiations.

B. Criteria for membership

1. Enhanced political dialogue and political criteria

The political criteria for accession to be met by the candidate countries, as laid down by the Copenhagen European Council in June 1993, stipulate that these countries must have achieved “stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities.” [2] In this section, the Commission also monitors regional issues, including the requirements of Turkey’s commitment to good neighbourly relations and its undertaking to resolve outstanding border disputes; its support for efforts to achieve a comprehensive settlement of the Cyprus problem and progress in the normalisation of bilateral relations with Cyprus.

In its 2004 report, the Commission found that:

“Turkey has achieved significant legislative progress in many areas, through further reform packages, constitutional changes and the adoption of a new Penal Code, and in particular in those identified as priorities in last year’s report and in the Accession Partnership. Important progress was made in the implementation of political reforms, but these need to be further consolidated and broadened. This applies to the strengthening and full implementation of provisions related to the respect of fundamental freedoms and protection of human rights, including women’s rights, trade union rights, minority rights and problems faced by non-Muslim religious communities. Civilian control over the military needs to be asserted, and law enforcement and judicial practice aligned with the spirit of the reforms. The fight against corruption should be pursued. The policy of zero tolerance towards torture should be reinforced through determined efforts at all levels of the Turkish state. The normalisation of the situation in the Southeast should be pursued through the return of displaced persons, a strategy for socio-economic development and the establishment of conditions for the full enjoyment of rights and freedoms by the Kurds.

The changes to the Turkish political and legal system over the past years are part of a longer process and it will take time before the spirit of the reforms is fully reflected in the attitudes of executive and judicial bodies, at all levels and throughout the country. A steady determination will be required in order to tackle outstanding challenges and overcome bureaucratic hurdles. Political reform will continue to be closely monitored.

As regards the enhanced political dialogue, relations with Greece developed positively. A series of bilateral agreements were signed and several confidence building measures adopted. A process of exploratory talks has continued. On Cyprus, over the last year Turkey has supported and continues to support the efforts of the UN Secretary General to achieve a comprehensive settlement of the Cyprus problem. The European Council of June 2004 invited Turkey to conclude negotiations with the Commission on behalf of the Community and its 25 Member States on the adaptation of the Ankara Agreement to take account of the accession of the new Member States. The Commission expects a positive reply to the draft protocol on the necessary adaptations transmitted to Turkey in July 2004.”

The section below provides an assessment of developments in Turkey, seen from the perspective of the Copenhagen political criteria, including the overall functioning of the country’s executive and its judicial system. Such developments are in many ways closely linked to developments regarding Turkey’s ability to implement the acquis, in particular in the domains of anti-discrimination and equal opportunities, judiciary and fundamental rights as well as justice, freedom and security. Specific information on progress in implementing the acquis in these fields can be found in Chapter 19 (Social policy and employment), Chapter 23 (Judiciary and fundamental rights) and Chapter 24 (Justice, freedom and security) of the section dealing with the ability of Turkey to assume the obligations of membership (see below B. 3.).

1.1 Democracy and the rule of law

Parliament

Since the last national elections in November 2002 the Justice and Development Party (AKP) has held a comfortable majority in the Turkish Grand National Assembly. As of October 2005, the AKP has 355 seats in Parliament. The main opposition party the Republican People’s Party (CHP) is represented with 155 deputies.

Several deputies from AKP as well as CHP have changed their party affiliation and in some cases established new parties. As a result, the number of political parties currently represented in Parliament has increased to six. Therefore, some of the parties that did not pass the election threshold of 10% in the November 2002 elections gained seats in Parliament: the True Path Party (DYP) 4, the Social Democrat People’s Party (SHP) 4, the Motherland Party (ANAP) 21 and the People’s Ascension Party (HYP) 1 seat. Six members of Parliament are independent and 4 seats are vacant.

There has been no change to the electoral system, which requires political parties to reach a 10% threshold to achieve representation in Parliament.

After the intensive reforms of the previous two years, Parliament continued its regular legislative work. A total of 184 draft laws have been submitted to Parliament since October 2004. Between October 2004 and June 2005 Parliament adopted 166 new laws.

Since the previous Regular Report, Parliament has adopted several laws which build on the political reform process. The most important are: the Law on the Establishment of Duties and Powers of the Ordinary Courts of First Instance and Regional Courts of Appeal and the Law amending the Code of Civil Procedures (October 2004), the Law on Associations (23 November 2004), the Law on the Enforcement of Sentences and Security Measures (29 December 2004), the Law amending some of the articles of the New Turkish Penal Code (31 March 2005), the Law on the Implementation of the Code of Criminal Procedure and the Law on Misdemeanours (31 March 2005), the Law Amending the Law on the Enforcement and Implementation Procedure of the Code of Criminal Procedure, the Law amending the Law on the Enforcement and Implementation Procedure of the Turkish Penal Code (18 May 2005), the Law amending the Law on Enforcement of Sentences, the Law amending the Law on Judicial Records, the Law amending the Code of Criminal Procedure (1 June 2005).

Since the beginning of the third legislative period in October 2004, the President of the Republic has used his right to return laws to Parliament to be reviewed on thirteen occasions. He has applied eight times to the Constitutional Court for the annulment of certain provisions of laws adopted by Parliament in the second round after the presidential veto.

The EU Harmonisation Committee continued its work, giving its opinion on various EU-related draft laws. There were however complaints that some important EU related legislation was not submitted for the Committee’s opinion, e.g. revisions made in the Penal Code.

A new Committee on Violence Against Women and Children has been established. The Parliamentary Human Rights Investigation Committee has continued its work conducting investigations in cases involving human rights abuses. However, its overall impact is constrained by limited resources and the fact that it currently plays no role in scrutinising legislation.

Government

Since November 2002 the government has been formed by the Justice and Development Party AKP. It has reiterated its commitment to the reform process on several occasions. The main opposition party, CHP, has generally extended its support to this process. Relations with the EU have for the most part remained at the forefront of the political agenda.

The government has reviewed the reform process regularly, assisted by the Reform Monitoring Group, a body responsible for supervising the implementation of the reforms. The Secretariat General for EU Affairs continues to play an important coordinating role as regards the alignment with and implementation of EC norms and standards as well as on the programming of financial cooperation in support of these objectives.

A small cabinet reshuffle took place in June 2005 when the State Minister for Women, the Minister for Public Works and Housing and the Agriculture Minister were replaced. The Minister for Culture and Tourism resigned from his post and his party, taking over the leadership of the ANAP party. The post of Prime Ministry spokesman was established.

A number of senior appointments to the public administration did not receive the approval of the President of the Republic. Of the 2 340 appointments made since the beginning of the current government, 306 were not approved by the President. The government has increasingly made use of temporary appointments to fill administrative posts, including for appointments that had not been vetoed by the President.

Public administration

As regards public administration, there has been some progress in terms of reforms at provincial and local level. However, there have been certain difficulties in pursuing a comprehensive process of reform, especially concerning the central administration, thus leading to a fragmented approach.

The Framework Law on Public Administration adopted in 2004 was vetoed by the President in July 2004 on the grounds that it conflicted with constitutional provisions related to the unitary character of the State. This Law was intended to be the centrepiece of the reform process. In particular, it provided for a new distribution of duties and powers between local and central government, for rationalizing administrative bodies and for an increased responsiveness and transparency vis a vis the citizen. Currently the Parliament is still in the process of reviewing the legislation.

A number of laws were nonetheless adopted as regards local government. The Law on Municipalities was first adopted in 2004 and then vetoed by the President. Subsequently it entered into force in July 2005 with minor amendments. The Law on Special Provincial Administrations was first adopted in 2004 and then vetoed by the President. It subsequently entered into force in March 2005 with some minor amendments. However, the President applied to the Constitutional Court on the basis of possible conflicts with constitutional provisions related to the unitary character of the State.

The Law on Association of Local Governments was adopted in June 2005. Thus, together with the Law on Metropolitan Municipalities which was adopted in 2004, four basic local government reform laws are now in force.

The Law on Municipalities and the Law on Special Provincial Administrations aim at strengthening the capacity of local government to deal with the challenges of rapid urbanization and mass immigration from rural areas. To this end these laws introduce modern public management concepts in order to create efficient, result oriented and transparent local government.

The reforms have introduced, in particular, strategic planning requirements, emergency planning, debt and borrowing limits, performance based budgeting, annual activity reports and the creation of audit commissions. Provisions have also been introduced allowing voluntary participation of local residents in service delivery. Moreover, City councils have been created, with members drawn from civil society, in order to promote participation and consultation.

The Law on Association of Local Governments allows villages, municipalities and special provincial administrations which share common problems to associate themselves to undertake joint projects.

The fact that all these laws have been rewritten at the same time presents significant challenges for the government. In order for the intended objectives to be met, the implementation of these laws will have to be planned and executed effectively. In particular, the necessary secondary legislation will need to be adopted. Issues to be tackled include: enabling full consultation of interested parties through stronger access to information; financial and fiscal implications; human resource requirements; strengthening of financial control and auditing systems.

There has been no progress in establishing an Ombudsman. This office would be a key institution in improving the efficiency of public administration and in detecting corruption.

On 25 May the Prime Minister appointed the State Minister for the Economy Ali Babacan as EU Chief Negotiator. Reporting directly to the Prime Minister, he is also responsible for the Secretariat General for EU Affairs. Further structural changes to the institution and an increase in human resources have been announced by the Prime Minister. In September, the Prime Minister and the Chief Negotiator met a group of 85 NGOs to discuss ways of improving the dialogue with civil society in relation to the accession negotiation process.

Civil-military relations

Further changes have been introduced over the last year in order to align civilian control of the military with practice in EU Member States.

As regards the duties, functioning and composition of the National Security Council (NSC), implementation of reforms adopted in previous years has begun.

In October 2004 the NSC convened for the first time under the chairmanship of the new civilian Secretary General. This institution is currently composed of 7 civilian members and 5 military members. The Secretary General does not have the right to vote. The staff of the NSC Secretariat General decreased from 408 to 305 persons.

As provided for under the reforms, the NSC meets every two months. The minutes of such meetings are not made public. However in practice, a brief press release has generally been given after each meeting. During the last year, subjects discussed included international and security issues such as Iraq and terrorism, Cyprus, energy issues and EU-Turkey relations.

In a press release of 30 December 2004, the NSC, while “welcoming the decision to give a date to Turkey for the opening of accession talks”, emphasised the “importance of eliminating some of the negative elements in the Conclusions of the Summit of December 2004 and of conducting the negotiation process aimed at membership on a sustainable basis, without conditions and discrimination against Turkey”.

With a view to increased transparency, on 30 November 2004 a press briefing was organised for the first time at the NSC headquarters, attended by some 200 Turkish and foreign journalists. A presentation of the NSC’s tasks and organisational structure was followed by a question-and-answer session, which covered a range of issues, including the National Security Document, relations with Greece, Cyprus, Iraq and the fight against terrorism, and domestic security. Since then, press briefings have been taking place at the initiative of the General Staff.

Defence expenditure increased from EUR EUR6 985 billion to EUREUR8 198 billion, raising the share of defence spending in the budget from 6.7% in 2004 to 7.2% in 2005. However, with a share of 9.7% in the state budget, education spending is higher than defence expenditure for the second successive year.

As regards parliamentary oversight of defence expenditures, the amendments to the Law on Public Financial Management and Control (PFMC), which was adopted in December 2003 and entered into force in January 2005, have the potential to improve budgetary transparency concerning military and defence expenditures. Extra-budgetary funds have been included in the general defence budget and will be dissolved by 31 December 2007. The adoption and implementation of appropriate secondary legislation should allow full ex-ante parliamentary oversight over military expenditures.

Legal regulations adopted in May 2004, including a constitutional amendment, have enhanced the ex-post audit of defence expenditure. The Court of Auditors has been authorised to audit defence expenditures on behalf of Parliament. With the amendment to Article 160 of the Constitution the exemption of state property owned by the Turkish armed forces from auditing has been removed. However, since the appropriate enabling legislation has not yet been adopted, the Turkish Court of Auditors is not yet in a position to carry out this task as provided for by Article 160 of the Constitution.

In addition to the reforms to the legal and institutional framework, it is important that the civilian authorities fully exercise their supervisory functions in practice. Further efforts are needed to raise awareness among elected members of Parliament and to continue to build up the relevant expertise among civilians. The question of strengthening parliamentary oversight of defence expenditure has increasingly become a subject of interest for the media and civil society.

As regards the formulation of security and defence policy, work has begun to prepare a new National Security Policy Document (NSPD). The purpose of the document is to identify threats to national security, to determine the priority of threats and to define strategies. The NSPD is drafted by the Secretariat General of the National Security Council with contributions from the Presidency, the Ministry of Interior, the Ministry of Foreign Affairs and the National Intelligence Service. The NSPD is subject to the approval of the Council of Ministers.

In January 2005, the Prime Minister sent a letter to the NSC Secretariat General stressing the responsibility of the government for Turkish national security before Parliament. The Prime Minister asked that the NSPD be restricted to essentials. Members of the General Staff have made statements on their perception of national security. Meanwhile, the definition of national security and defence strategy is increasingly becoming an item for open debate as reflected in the media.

The Turkish Armed Forces Internal Service Law, which defines the role and duties of the Turkish military and which contains articles granting the military a wide margin of manoeuvre, is unchanged.

Article 2a of the National Security Council Law provides a broad definition of national security, which, depending on interpretation, could cover almost any policy field: “National Security means the protection of the constitutional order of the State, its nation and integrity, all of its interests in the international sphere including political, social, cultural and economic interests, as well as the protection of its constitutional law against all internal and external threats”.

The General Staff Military Court has launched proceedings against former high-ranking generals in relation to allegations of corruption. After the General Staff Military Prosecutor’s investigation the case was submitted to the High Military Court on 8 November 2004.

There has been no further progress with regard to the provisions of the Military Criminal Code permitting the trial of civilians before military courts. However, a reduction in the number of civilians tried before military courts can be observed between 2004 and the first five months of 2005.

The Gendarmerie is connected to the General Staff in terms of its military functions, but affiliated to the Ministry of Interior in terms of its law enforcement functions. The control of the Ministry of Interior, of governors and district governors over the Gendarmerie should be strengthened in order to allow full civilian oversight on internal security policy.

The armed forces continue to exercise significant political influence. Individual military members of the NSC as well as other senior members of the armed forces have continued to regularly express their opinion on domestic and foreign policy issues via public speeches and press briefings. These statements concerned in particular Iraq, Cyprus, terrorism, the principle of secularism and EU-Turkey relations. In November 2004, the Deputy Chief of Staff made extensive comments on aspects of last year’s Regular Report. In March 2005, the General Staff issued an official statement reacting to incidents which took place at the occasion of the celebration of the Newroz (marking the beginning of the spring). In April 2005 at the headquarters of the Military Academies Command, the Chief of General Staff delivered a speech consisting of a comprehensive tour d’horizon on foreign policy and domestic issues.

The case against the teachers’ union, Eğitim Sen (see 1.3 Human rights and the protection of minorities, section on freedom of association) was launched under pressure from the General Staff in 2003 which asked the competent authorities to take measures with a view to enforcing Article 42 of the Constitution concerning mother tongue education.

Since 2002, Turkey has made good progress in reforming civil-military relations. It is essential that Turkey consolidates reforms adopted in previous years and remains committed to further reforms in this area. Turkey should work towards greater accountability and transparency in the conduct of security affairs in line with Member States’ best practice. In particular, statements by the military should only concern military, defence and security matters and should only be made under the authority of the government, while the civilian authorities should fully exercise their supervisory functions, in particular as regards the formulation of the national security strategy and its implementation, including with regard to relations with neighbouring countries.

Initiatives such as the Task Force on Governance and the Military, jointly sponsored by the Center of European Security Studies and the Istanbul Policy Center, or the project on Democratic Oversight of the Security Sector promoted by TESEV and the Geneva Center for the Democratic Control of Armed Forces (DCAF) could make an important contribution. It is also important to promote better public understanding of reforms in civil-military relations, both at home and abroad.

Judicial system

The judicial system has been further strengthened via the adoption of structural reforms. Important progress was made with the entry into force on 1 June 2005 of the Penal Code, the Code of Criminal Procedure, the Law on Enforcement of Sentences and the Law on the Establishment of the regional Courts of Appeal.

The entry into force of the Penal Code (as well as the other laws mentioned above), adopted in December 2004, was postponed until 1 June 2005 due to concerns about the provisions concerning both organised crime and freedom of expression. In general, the Code adopts modern European standards in line with criminal law in many European countries. However, despite the introduction of a number of amendments by Parliament, concerns remain regarding articles which may be used to restrict freedom of expression (see 1.3 Human rights and the protection of minorities, section on freedom of expression).

The adoption of a new Code of Criminal Procedure represents a major step forward. It introduces the concept of cross examination of witnesses during trials, which did not previously exist in the Turkish legal system. The Code establishes the concept of plea bargaining. In order to reduce the number of unmeritorious prosecutions, the Code increases the discretion of prosecutors, who are now able to assess the strength of the evidence before preparing an indictment. Moreover, judges are given the power to return incomplete indictments. Under the new Code, criminal investigations must be carried out by a judicial police force under the authority of the public prosecutor. The Chief Public Prosecutor will be responsible for preparing annual evaluation reports on the judicial police under his command. The Code introduces the requirement that certain trials are to be recorded on audio and video tape. Judges and prosecutors throughout Turkey have received training on the Code. However, implementation of the powers to discontinue unmeritorious cases and the operation of the judicial police will need to be assessed.

The new Code of Criminal Procedure provides that defendants and witnesses who cannot speak the Turkish language are to be provided with an interpreter free of charge. However, concerns have been expressed that as there are currently no interpreters trained in legal interpretation between Turkish and other languages used in Turkey, there may be difficulties in ensuring adequate standards of accuracy. Measures should be adopted to address this problem.

There are some concerns related to the provisions concerning the rights of defence and the rights of detainees in the new Code. Of particular concern is a provision restricting lawyers who are being prosecuted for, inter alia, charges related to terrorism, from representing individuals facing prosecution for similar crimes. In practice such a provision could have an impact on the ability of human rights lawyers, themselves often the subject of judicial harassment, to defend their clients (see 1.3 Human rights and the protection of minorities, freedom of association)

Implementing legislation, namely a revised Regulation on Apprehension, Detention and Statement Taking, a Regulation on Judicial and Preventive Search and a Regulation on the Judicial Police, also entered into force on 1 June 2005.

The Law on Enforcement of Sentences, which also entered into force on 1 June 2005, brings clarity to this area by replacing numerous regulations which previously governed the enforcement of sentences. The Law is generally in line with EU best practice and addresses issues such as prisoners’ rights and obligations, order and discipline within prisons, and rehabilitation and reintegration of offenders. The Law establishes the concepts of community service and probation. However, there is a need for further training of prison officers on the content of this Law.

Moreover, it is of concern that this Law provides that, at the request of the public prosecutor, and with the authorisation of an enforcement judge, a law enforcement officer may be present during meetings between prisoners and lawyers. This officer may also examine defence documents where there is a suspicion that the meetings are being used to enable communication with terrorist or criminal organisations. The provision has been criticised for being in contravention of Article 10 of the Turkish Constitution, which concerns equality before the law, and also raises questions in the light of certain international conventions to which Turkey is party. Concern has also been expressed that the provisions regarding juveniles are not fully in line with international standards and that juveniles may be imprisoned in adult prisons. The application of these provisions will need to be assessed.

The Law Establishing the Intermediate Courts of Appeal came into force on 1 June 2005. The establishment of the Courts of Appeal will substantially reduce the case load of the Court of Cassation and enable it to concentrate on its function of providing guidance to lower courts on points of law of general public importance. The Law provides that the Courts are to be established within two years of its entry into force.

Legal amendments adopted in July 2005 provide that juveniles accused of minor offences are to be tried before a single judge instead of before a panel of three judges. This constitutes a welcome development, as it should reduce the current backlog of cases before the juvenile courts. 27 New family courts were established.

The principle of the independence of the judiciary is enshrined in the Turkish constitution but is undermined by several other constitutional provisions. The Constitution provides that judges and prosecutors are attached to the Ministry of Justice in so far as their administrative functions are concerned. The Minister of Justice and the Undersecretary of the Ministry of Justice are members of the High Council of Judges and Prosecutors, which is responsible for the appointment, promotion, transfer, discipline and, broadly speaking, the careers of all judges and prosecutors. Furthermore, the High Council does not have its own secretariat and budget and its premises are inside the Ministry of Justice building. The judicial inspectors, who are responsible for regularly assessing the performance of all judges and prosecutors, are attached to the Ministry of Justice rather than to the High Council. Turkey should ensure the independence of the judiciary, in particular as regards the High Council of Judges and Prosecutors and the appointment of new judges and prosecutors. In the light of the impending recruitment of some 4,000 additional judges and prosecutors, the senior judiciary in Turkey have expressed concern that the influence of the Ministry of Justice in the appointment procedure may undermine the independence of the judiciary.

There is a close relationship between judges and prosecutors; the public prosecutor’s office is not clearly separated from the judge’s, which could create the impression that the prosecutor is able to exert undue influence. A clear institutional and functional separation of the professional rights and duties of judges and prosecutors needs to be established.

A third expert advisory mission on the functioning of the judicial system took place in June 2005 and concluded that further progress had been made since the second visit.

The new Code of Criminal Procedure and the Regulation on Apprehension, Detention and Statement Taking provide for arrested persons to be informed of their rights, including their right to free legal counsel. Legal representation was already compulsory for juveniles accused of criminal offences. The new Code widens the scope of compulsory legal representation by providing that representation by legal counsel is to be mandatory for all offences punishable by more than five years’ imprisonment. Of those accused of serious criminal offences, the number asking for a lawyer increased substantially between 2003 and 2005. However, there are reports that the police and gendarmerie continue to discourage detainees from requesting legal assistance.

Judges and prosecutors have a considerable role to play in the implementation of reforms. Courts have in general continued to apply the European Convention on Human Rights (ECHR). The courts are reported to have referred to the Convention in 224 judgments since 2004. In general, however, it is difficult to discern a clear positive pattern, as provisions of Turkish law and even articles of the ECHR are not interpreted consistently. On the one hand, there are signs that the judiciary is increasingly integrating the new provisions. Several court judgements have been issued suggesting a positive development in areas such as freedom of expression, freedom of religion, and the fight against torture and ill-treatment and honour crimes. This trend also applies to the decisions of the Council of State. On the other hand, courts have issued judgments in the opposite direction in the area of freedom of expression, including against journalists. In the context of the Eğitim Sen case, the Court of Cassation issued a judgment ordering the closure of the trade union unless it made changes to its statute and in so doing, reversed the lower court’s judgements which had made explicit reference to the relevant provisions of the ECHR (see 1.3 Human rights and the protection of minorities, section on freedom of association).

It is of crucial importance that sustained efforts continue with respect to training judges, prosecutors and lawyers and where necessary, that they are reminded by the responsible authorities about their duties and obligations to respect the relevant provisions stemming from International and European conventions in the area of human rights and fundamental freedoms, as required under Article 90 of the Turkish Constitution.

More details on the judicial system can also be found under Chapter 23 – Judiciary and fundamental rights.

Anti-corruption policy

In the last year, some progress has been achieved in adopting anti-corruption measures. However, surveys continue to indicate that corruption remains a serious problem in Turkey.

The new Penal Code punishes corruption-related crimes more seriously and the statute of limitations for such offences has been extended. The Code also introduces the concept of liability of legal persons in cases of corruption and contains provisions concerning corruption in public procurement.

In 2005 two corruption-related commissions were established in parliament to investigate the gasoline smuggling, and illegal public offering (money collection) and misuse of depositors.

The Law on Access to Information which was adopted in 2003 was an important step in enhancing transparency. However, this law needs to be broadened in scope and classified and unclassified public records need to be clearly defined in order to ensure effective implementation.

Turkey has no specific law on financing and auditing of political parties. Although public officials are required to submit asset declarations, there is a need to ensure their proper verification. Currently, many public bodies are exempt from auditing requirements. This should be rectified through extending the mandate of the Court of Auditors.

The Ethical Board for Public Servants has started to operate. A circular was issued in 2004 instructing public bodies to co-operate fully with the Board. A regulation on the code of ethics for public employees entered into force in April 2005. The regulation sets out a detailed code of behaviour for senior public officials and grants members of the public the right to petition the Ethical Board concerning contraventions of the code. It does not apply to other categories such as elected officials, academics, military personnel or the judiciary.

One former Prime Minister and seven former ministers were tried before the High Tribunal on charges of corruption.

The scope of parliamentary immunity has been identified as a significant problem in the context of corruption in Turkish public life. In spite of intensive debate, no development can be reported concerning Parliamentary immunity. No progress has been made concerning the transparency of the financing of political parties. The auditing of political parties remains weak. Although public officials are required to submit asset declarations, there is a need to extend the scope and frequency of declarations.

The efficiency and effectiveness of governmental, parliamentary and other bodies established to combat corruption remains a matter of concern. The consistency of policies and the degree of co-ordination and co-operation is weak. Institutions relevant to the fight against corruption should be strengthened and in particular an overhaul of the inspection system is necessary to increase efficiency in the fight against corruption. In this context an effective leadership and coordination function should be established. Furthermore, dialogue between the government, public administration and civil society needs also to be strengthened. In addition, more action should be taken to raise public awareness of corruption as a serious criminal offence. Continuous support at the highest political level for the fight against corruption would be welcome.

More details on anti-corruption policy can also be found under Chapter 23 – Judiciary and fundamental rights.

1.2 Human rights and the protection of minorities

Observance of international human rights law

Turkey has made further progress with regard to international human rights instruments. In October 2004, the European Agreement relating to Persons Participating in Proceedings of the European Court of Human Rights (ECtHR) was ratified and Protocol No14 to the European Convention on Human Rights (ECHR) (amending the control system of the Convention) and the Revised 1996 European Social Charter were signed. The International Convention on the Protection of the Rights of All Migrant Workers entered into force in January 2005. The First Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), which was signed in February 2004, has not yet been ratified. Turkey signed the Optional Protocol to the UN Convention against Torture (OPCAT) in September 2005 and ratified Protocol No 13 to the ECHR concerning the abolition of the death penalty in all circumstances in October 2005. Turkey has not signed the Framework Convention for the Protection of National Minorities and has not acceded to the Statute of the International Criminal Court.

Turkey has not submitted its first reports under the ICCPR or the International Covenant on Economic, Social and Cultural Rights (ICESCR) to the relevant UN Committees. Consequently, the validity of Turkey’s declarations on and reservations to these covenants has not yet been assessed by these bodies, although their possible practical implications, particularly as they relate to the protection of minorities in Turkey, are of concern (see section on minority rights, cultural rights and the protection of minorities).

Turkey has made progress in relation to the execution of judgments of the European Court of Human Rights (ECtHR). This has been highlighted notably in several resolutions by the Council of Europe’s Committee of Ministers and several other sources, including the Parliamentary Assembly of the Council of Europe rapporteur on the implementation of judgements of the ECtHR in June 2005. Both the Committee and the rapporteur have, however, noted that a number of issues are outstanding. In general, it is important that the Turkish authorities ensure that direct effect is given to the case-law of the ECtHR in the Turkish legal order so as to implement the constitutional, legislative and regulatory framework created by Turkey in response to the Court’s judgments. New Article 90 of the Constitution should encourage domestic authorities to act accordingly.

Since October 2004, the ECtHR has delivered 129 final judgements concerning Turkey. On 120 occasions the Court found that Turkey had violated the ECHR, and 7 friendly settlements were concluded. In 2 cases, it was found that Turkey was not in violation of the ECHR. During this period, 1 812 new applications regarding Turkey were made to the ECtHR. [3]

The two main problems highlighted in recent judgments relate to a lack of government cooperation with the ECtHR in the investigation of cases and the right of return to the villages in the South East. Under Article 38 of the ECHR states have a duty to “furnish all necessary facilities” when the Court conducts an investigation and this is considered to be “of fundamental importance for the proper and effective functioning of the Convention system”. [4] In 2005 the ECtHR found violations of Article 38 of the ECHR in at least one case. [5] In another case, Mamatkulov and Askarov v. Turkey, [6] an unjustified interference with the right of individual petition (violation of Article 34 of the ECHR) was established as Turkey did not respect an indication from the Court that the applicants should not be extradited pending the outcome of the proceedings before it.

In 2005 the Council of Europe also began to consider the case of Dogan and Others v. Turkey, [7] which concerns the issue of the return to villages in the Southeast. In June 2004 the ECtHR ruled in favour of the applicants, who had been expelled from villages in the Southeast in the mid-1990s. The ruling established possession of land and property in the absence of title deeds, which many displaced individuals from the Southeast do not have. A large number of similar applications against Turkey are currently pending before the Court (see section on East and Southeast).

The main developments in the execution situation in respect of problems pending before the Committee of Ministers since before 2005 are the following.

Provisions enabling retrial still do not apply to cases that were pending before the ECtHR prior to 4 February 2003, including the case of Öcalan. [8] The urgency of reopening these cases has been emphasised, in particular, in relation to the Hulki Günes case. [9] As regards the Öcalan case, the Grand Chamber of the European Court of Human Rights delivered a judgement in May 2005 [10] concluding that Turkey was responsible for violating provisions concerning the right to a fair trial. The judgement indicated that the remedial measures might include retrial or the reopening of the case, but left the issue largely to be decided by the Turkish authorities. To date it is not clear what measures the Turkish authorities will take to ensure compliance with the judgement.

As regards the case of Sadak, Zana, Dicle and Dogan, [11] in December 2004 the Committee of Ministers closed its examination of the execution of the Court’s judgment noting the positive developments in the new retrial ordered, including the applicants’ release. The retrial is ongoing.

In June 2005 the Council of Europe’s Committee of Ministers adopted an interim resolution on the group of 74 pending cases relating to the actions of the Turkish security forces. The Resolution notes with satisfaction the important reforms that have been adopted in order to address the different problem areas (unlawful detention, extra-judicial killings; torture and ill-treatment and the destruction of property) identified in the Court’s judgments. The resolution highlights that attention should now focus on implementation of these reforms (see section on torture and ill-treatment).

As regards the group of cases concerning freedom of expression in Turkey the Committee of Ministers has noted the abolition of the old Article 8 of the Anti-terror law and decided to close the cases concerned as soon as all applicants have had their convictions erased. Other cases have not been closed, pending an assessment of the impact of the recent legislative changes, such as the adoption of the new Penal Code, on the development of the relevant case-law (see section on freedom of expression)

As to the case of Cyprus against Turkey [12], in June 2005 the Committee of Ministers adopted an interim resolution, noting that progress has been made in relation to education, military tribunals, freedom of religion and missing persons. The Committee closed its examination of issues pertaining to military tribunals. Still unresolved are issues relating to the restoration of rights and property to displaced Greek Cypriots.

With regard to the promotion and enforcement of human rights, the institutional framework has not been modified. While institutions such as the Reform Monitoring Group, the Human Rights Presidency and the Parliamentary Human Rights Investigation Committee continue to carry out important work, there is an urgent need to consolidate and strengthen the capacity of these institutions.

The Human Rights Presidency has continued to intensify its work to provide training on human rights, process complaints and address specific cases. Efforts have focused, in particular, on increasing awareness of the existence of the Presidency and the provincial Human Rights Boards. Nevertheless, the impact of the Presidency remains low as it has a limited budget, its role in relation to line ministries is poorly defined and it is not consulted on legislative proposals (see also Section B.1.1 Democracy and the rule of law: Parliament). In September 2005, the President of the Human Rights Presidency resigned.

The Human Rights Presidency has held contacts with international partners aimed at inter alia improving the functioning of the Presidency and local boards and creating an independent, adequately resourced national human rights institution which complies with the UN Paris principles [13]. To date these projects have not produced concrete results.

From October 2004 to March 2005, the Human Rights Boards and the Presidency received complaints of human rights abuses from 565 individuals. This figure represents less than one complainant per board, suggesting limited awareness of the existence of the boards and/or low levels of trust. In practice, the boards are under-resourced and their effectiveness varies depending on the approach of the deputy governor chairing them. Two important Turkish human rights NGOs, the Human Rights Association and Mazlum Der have maintained their policy of not participating in these Boards, although in a handful of cases individuals from these NGOs have participated in a personal capacity.

Since the publication of a report on minority rights in Turkey in October 2004, the Human Rights Advisory Board under the Office of the Prime Minister - a body composed of NGOs, experts and representatives from ministries – has not been operating. (see section on minority rights, cultural rights and the protection of minorities).

The Parliamentary Human Rights Investigation Committee continued to collect complaints on human rights violations and, in relation to some high-profile cases, requested that the relevant authorities follow up and redress the situation when necessary. It received 1 307 complaints between October 2004 and June 2005. The Committee conducted an investigation into the alleged extra judicial killing of a 12-year-old boy and his father in Kilzitepe province in November 2004 (see section on torture and ill-treatment).

Since its establishment in 2003, the gendarmerie’s Human Rights Violations Investigation and Assessment Centre has received 162 direct complaints, the majority of which relate to allegations of ill-treatment or unjust detention. To date, disciplinary measures have been taken in 3 cases.

The Ministry of Interior’s Investigation Office, which was established in February 2004, has received 1 003 complaints of human rights abuses from the public. These complaints are assessed by inspectors, who follow them up with the relevant authorities within the ministry at local or central level. Most complaints received have been made against the police. To date, on only one occasion has a complaint led to disciplinary action being taken against a public official. This Office has also carried out inspections of a number of the provincial police disciplinary boards and has inspected detention procedures and places of detention in 26 provinces.

With regard to training on human rights, the Turkish authorities continue to pursue a number of programmes targeting relevant personnel in the Ministries of Interior and Justice, the gendarmerie and the police.

As regards the fight against discrimination, the new Penal Code criminalises discrimination on various grounds. However, no progress has been made on the adoption of further legislation aimed at guaranteeing the effective prohibition of discrimination in employment, as provided for by the EU acquis (see also section on economic and social rights and Chapter 19 - Social policy and employment).

Civil and political rights

With regard to the prevention of torture and ill-treatment, although reports of torture and ill-treatment are still frequent, the broad assessment of international and Turkish NGOs, as well as experts on the ground, such as lawyers and forensic doctors, is that incidence is diminishing. The President of the Council of Europe’s Committee for the Prevention of Torture (CPT) stated in October 2004 that “it would be difficult to find a Council of Europe Member State with a more advanced set of provisions in this area” while adding that, it is nevertheless “right to underline that Turkey needs to pursue vigorously its efforts to combat torture and other forms of ill-treatment”. In particular, further efforts are required to ensure full implementation of existing legislation and to reinforce the fight against impunity.

The new Penal Code, the new Code of Criminal Procedure and their implementing regulations contain provisions which strengthen the fight against torture and ill-treatment. The new Regulation on Apprehension, Detention and Statement Taking, issued in June 2005, introduces additional safeguards, in particular in the context of medical examinations and the right of defence. Furthermore, the Penal Code increases the term of imprisonment for those convicted of torture or ill-treatment and the statute of limitations, which in the past has allowed cases against alleged perpetrators of torture or ill-treatment to be dropped, is increased from ten to fifteen years. However, it is regrettable that the statute of limitations is not repealed for such crimes, as recommended by the UN Committee Against Torture (CAT) in 2003.

Certain recent legislative changes have provoked concerns. This is particularly the case as regards provisions in the new Code of Criminal Procedure and the Law on the Execution of Sentences, which allow for individuals to be transferred from their place of detention or prison to other places for a certain period of time, in the context of aiding onsite investigations. Furthermore, a provision in the Law on the Execution of Sentences permits the presence of a security official during meetings between prisoners and their lawyers in certain circumstances (see section on the justice system). It is also of concern that certain past positive amendments have not been maintained in the context of the Code on Criminal Procedures; most notably, an article limiting the postponement of trials in torture cases does not appear in it and it is not clear whether a regulation stipulating that sentences for crimes of torture/ill-treatment cannot be converted into a fine or suspended sentence is maintained in the context of the new legislation.

In March 2005, the new management board of Izmir’s Bar Association decided to abolish the EU-financed Torture Prevention Group (TPG), which had been carrying out valuable work in this area. Over 1 000 lawyers requested a general assembly to discuss the board’s decision, which was refused by the board, but in July an administrative Court declared this refusal illegal.

As regards implementation, practice varies considerably throughout Turkey, although overall the situation continues to improve and both Bar Associations and NGOs confirm that reports of torture and ill-treatment are diminishing. According to these sources, severe forms of torture and ill-treatment are now rarely used and reports of ill-treatment in places of detention are less frequent than in the past. However, reports of ill-treatment outside of detention centres are still common, in particular, during the transportation of detainees, or in the context of demonstrations. Moreover, the situation in Turkey’s mental health facilities should be urgently examined (see section on rights of the disabled). Of the total complaints received by the Human Rights Presidency between October 2004 and March 2005 a significant proportion continue to relate to “torture and ill-treatment”.

As regards the fight against impunity, a number of cases have been brought against the security forces and trials are ongoing. In June 2005 the Court of Cassation overturned the verdict of a lower court in a murder case on the grounds that inter alia, torture had been used to extract evidence.

Nevertheless, numerous challenges remain in this area. According to official statistics, of the 1 239 cases that were filed against law enforcement officials in the first quarter of 2005, only 447 prosecutions were pursued. Moreover, there are concerns that when cases are pursued, prosecutors still do not conduct timely and effective investigations against those accused of torture. Often such investigations are limited only to an examination of the medical report, despite the necessity – stated in the CPT report on the September 2003 visit – to look beyond the medical reports in the context of such investigations.

Convictions are rare and the courts appear to be unable or unwilling to impose appropriate sanctions on those committing these crimes. In 2004, of the 1 831 cases concluded, 99 led to imprisonment, 85 to fines and 1 631 to acquittals. Notwithstanding efforts to assure the attendance of the accused at trials and recent changes to the penal code, cases against alleged perpetrators of torture and ill-treatment continue to exceed the statute of limitations. Moreover, courts are often reluctant to accept evidence from sources other than the Forensic Medical Institute. Police officers facing trial for such crimes are frequently not removed from duty pending the outcome of the trial.

All detainees are entitled to access to justice (i.e a lawyer) and for juveniles the presence of a lawyer during interrogation is obligatory. Moreover, the new Regulation on Apprehension, Detention and Statement Taking makes the appointment of a defence lawyer obligatory in cases where the alleged crime carries a sentence of more than 5 years’ imprisonment. The percentage of individuals taken into custody for crimes related to smuggling and terrorism who requested a lawyer increased from 52% in 2004 to 64% in the first 5 months of 2005 according to official statistics. However, there are great regional variations in terms of the numbers taking advantage of this right: Bar Associations’ estimates vary from 70% (Diyarbakir) to 5 % (Agri). Moreover, it is not clear that detainees are always made aware of their rights, despite the measures requiring the police to inform detainees. The problem is more acute for persons whose first language is not Turkish.

As regards medical examinations, training in accordance with the Istanbul Protocol for physicians and judicial staff is ongoing and further such training is planned. Currently examinations are routinely conducted, but their quality is not guaranteed throughout the country and full implementation of the Istanbul Protocol is rare. –There is a limited capacity as far as forensic medicine is concerned and most doctors linked to the Forensic Medical Institute are concentrated in Istanbul and other major cities. Although examinations are increasingly conducted outside courthouses, there is a need to speed up the process of transferring them to hospitals and clinics. The fact that these still take place in several different types of location - including forensic clinics, state or university hospitals and local clinics - hampers the achievement of uniform standards. Moreover, it is of concern that the Forensic Medical Institute is not fully independent because of its reporting line direct to the Ministry of Justice.

A number of provincial Human Rights Boards have begun to carry out unannounced visits to places of detention in a number of provinces. Although a positive development, NGOs have raised doubts about the independence of such monitoring and of the Human Rights Boards in general (see section on enforcement of human rights). Nevertheless, it is to be hoped that this monitoring will represent a first step towards establishing fully independent monitoring as recommended by the CPT and the UN. Turkey signed the Optional Protocol to the UN Convention against Torture (OPCAT) in September 2005. This protocol provides for a system of regular visits to places of detention by complementary international and national independent expert bodies.

Allegations of extra-judicial killings have increased, particularly in the context of the deteriorating security situation in the Southeast (see section on East and Southeast). In November 2004, a father and his 12-year-old son were killed by Special Forces during operations in the Kızıltepe district of Mardin. The Parliamentary Human Rights Investigation Committee sent a delegation to Kızıltepe and concluded that the security forces had used excessive force. Following the incident the Deputy Security Director and 3 members of the specialforces were suspended from duty. However, since the start of their trial these individuals have been returned to duty in different provinces. Regional Bar Associations and human rights NGOs have questioned the transparency and fairness of the ongoing trial. Moreover, members of the Human Rights Association are currently standing trial in relation to a report they prepared regarding this incident.

The CPT report on its March 2004 visit to Turkey has not yet been authorised for publication.

With regard to the prison system the major development was the adoption of the new Law on the Execution of Sentences in December 2004. Despite some shortcomings, the Law and its secondary legislation – notably the Law on the Establishment of Probation Centres, adopted in July 2005 - introduces modern concepts such as community service and probation into Turkish law. A regulation on the rules and procedures for visiting convicts and detainees was published in June 2005 (see also section on the justice system). A number of rehabilitation, cultural and social and educational activities are ongoing in prisons.

According to official sources, in May 2005 there were 58 670 persons in prisons and detention houses. Of these, 31 812 were convicted prisoners and 26 858 were prisoners detained on remand. By May 2005, 14 431 prisoners had been released as a result of changes to the law brought about by the adoption of the new Penal Code.

Regarding prison conditions in Turkey, there has been significant progress in recent years, but there is a need to continue expanding best practice to all prisons throughout the country as some remain overcrowded and under-resourced. The Parliamentary Human Rights Investigation Committee published a report on Tekirdag F-type prison in March 2005 and concluded that there were problems with the structure and administration of the prison.

The 131 Monitoring Boards, whose work focuses on living conditions, health, food, education and the rehabilitation of prisoners, continued to carry out inspections. By June 2005, these boards had made 1 247 recommendations, of which 532 had been acted upon. The Boards paid visits to 419 prisons between October 2004 and May 2005. Their composition still does not include a significant representation from civil society and their reports remain confidential.

In the last quarter of 2004, the 141 Enforcement Judges received 830 complaints on actions involving prisoners and detainees. Of these applications, 83 have been accepted and acted upon, 4 have been partially accepted and acted upon, 679 have been rejected and 64 have resulted in other decisions, such as non-jurisdiction of the Enforcement Judges. Training of Enforcement Judges is ongoing.

With regard to freedom of expression, the situation of people sentenced for the expression of non-violent opinion continues to be addressed. The Turkish authorities have reported that a significant number of persons serving prison sentences under articles of the old Penal Code have been set free. Both the authorities and a number of NGOs report that there has been a continued reduction in the number of prosecutions and particularly convictions in cases related to freedom of expression. Nevertheless, there are a number of new cases where individuals expressing non-violent opinions have been prosecuted and convicted, including under provisions of the new Penal Code.

In May 2005 several amendments to the new Penal Code were adopted, which improved certain provisions related to freedom of expression. The aggravated sentences envisaged for a number of offences committed through the media were removed from many, but not all, of the articles including such provisions. Moreover, according to the amendments, acts of expression which have the purpose of providing information and/or which aim at criticism should not be criminalised. The scope of Article 125 on defamation was narrowed slightly. The reasoning associated with Article 305 (offences against fundamental national interests) was deleted. However, a number of articles which have been used to restrict freedom of expression in the past, and remained virtually unchanged in the new Code, were not addressed in the context of the May 2005 amendments. These and other articles still constitute a potential threat to freedom of expression given their broad margin of appreciation.

This is particularly the case with regard to a number of vaguely worded articles which refer to offences against symbols of state sovereignty, the reputation of state organs and national security. In practice, Article 301 of the new Penal Code (formerly Article 159, “insulting the State and State institutions”), has been used by some in the judiciary to prosecute and, in some cases, convict, individuals. This is despite the fact that the article has been amended in such a way as to permit criticism.

In August 2005 a public prosecutor in Istanbul brought a case against the novelist Orhan Pamuk under Article 301 in relation to remarks he had made to a Swiss newspaper regarding the killings of Armenians and Kurds in Turkey. The prosecution was initiated despite the fact that an earlier investigation by another prosecutor had been dropped following a different interpretation of the same article. In April 2005 a sub-governor of Sutçuler (province of Isparta) had ordered the destruction of all Pamuk’s books, but the order was not carried out and the official in question was reprimanded. In October 2005, Hrant Dink, the editor of the bilingual Armenian/Turkish weekly newspaper, Agos,was convicted under Article 301 and given a suspended six month prison sentence in relation to an article he had written on the Armenian diaspora. Dink, who faces a further trial in relation to a speech he gave at a conference in 2002, intends to appeal the court’s decision. In September 2005, Emin Karaca was convicted under Article 301 in relation to an article he wrote which criticised the past actions of the Turkish military. His five month prison sentence was commuted to a fine. Ragip Zarakolu, a prominent writer and publisher, still has a number of outstanding cases against him in connection with his publications on the Kurdish and Armenian issues; two cases relating to publications on the Armenian issue have been brought on the basis of Article 301.

In assessing whether to bring cases which impinge on the right to freedom of expression, the judiciary should consider whether the expression incites violence, armed rebellion or enmity, what the capacity of the individual or group is to influence the public and what kind of opportunity the target of the expression has to respond. There are examples of the judiciary exercising such reasoning: for example, the Court of Cassation overturned the prison sentence of columnist Selahattin Aydarin in October 2004, stating in its decision that it is not an offence to describe people who defend secularism as ‘atheists’.

However, the abovementioned Article 301 cases raise serious concerns about the capacity of certain judges and prosecutors to make decisions in accordance with Article 10 ECHR and the relevant case law of the ECtHR. If the code continues to be interpreted in a restrictive manner, then it may need to be amended in order to safeguard freedom of expression in Turkey. In this context court proceedings based on Article 301 will be closely monitored.

There has been some progress on open and free debate in general. A conference entitled ‘Ottoman Armenians during the collapse of the Empire: Scientific Responsibility and Issues of Democracy’ took place at Bilgi University in late September 2005. The conference, which had initially been due to take place in May 2005 at Bosphorus University, had been postponed by the organisers following a critical speech by the Minister of Justice in the Turkish parliament. Moreover, the location of the delayed conference was changed at a late stage following a decision by an Istanbul administrative court to prevent it from taking place at Bosphorus University. Notwithstanding these obstacles, the fact that this conference was held, with the participation of different viewpoints and the public support of the Prime Minister and government, was an important step.

According to the Turkish Publishers Association, the publication of books related to sensitive issues, such as the Kurdish and Armenian questions, is reportedly easier than in the past and when cases are brought against authors or publishers acquittals are more common. However, books focusing on these issues are in some cases still banned and individuals are occasionally convicted.

Recourse to legal action against cartoonists and satirists, including by the Prime Minister, is of concern. In June 2005, in such case, a journalist was sentenced to 3 months imprisonment.

As regards freedom of the press, there have been some positive developments, such as acquittals and a number of releases, as a result of the adoption of the new Press Law and the new Penal Code, although, as indicated above, journalists continue to face prosecution and are sometimes convicted for the expression of non-violent opinion. According to the Turkish Press Council there are no journalists currently imprisoned in relation to their work.

In addition to the abovementioned problematic articles in the new Penal Code, a number of other articles are retained which are of specific concern to journalists and which could, in particular, create a climate of self-censorship damaging to freedom of the press, information and expression. Several of these articles seem to contradict the new Press Law, which had aimed at “avoiding prison sentences in cases of offences committed through the press.” Article 285 foresees a sentence of four and a half years imprisonment in the case of a “violation of the confidentiality of an investigation”, while Article 277 envisages two to four years in prison for those convicted of attempting to “sway the justice system.” Both articles could be used against journalists covering court proceedings. Under Article 216, defamation through the press with the aim of exposing someone to a judicial investigation is punishable by a one to four-year prison sentence.

In response to fears about restrictions on freedom of the press in the new Penal Code, the Press Council established a new Legal Assistance and Support Service in June 2005. This Service will reportedly provide a lawyer free of charge to journalists facing charges brought against them under provisions of the new Code. The Service will also designate an observer to follow court cases involving journalists. According to International PEN, there are currently an estimated 60 writers, publishers and journalists under judicial process in Turkey.

Journalists still encounter difficulties in their efforts to form a trade union.

With regard to broadcasting, limited progress has been made during the past year. There are still strict time limits for broadcasts in languages and dialects other than Turkish, although programmes continue to be broadcast by the national state broadcasting corporation, TRT. Eleven applications have been made by local broadcasters to broadcast in languages and dialects other than Turkish, but none have received a response from the High Audio Visual Board (RTÜK), which claims that it has not received the necessary documentation to process the applications. Some of these applications have been pending since July 2004.

The Broadcasting Law (RTÜK Law) is still frequently invoked by RTÜK to impose heavy penalties, including fines and the suspension or cancellation of programmes or broadcasting licenses. In May 2005, RTÜK ordered the suspension of various programmes on private TV channels, while a number of others have faced sanctions or warnings. The monitoring of local broadcasts by the police on behalf of RTÜK has continued.

In some cases the courts have overruled RTÜK decisions. For example, in March 2005, RTÜK ordered the closure for 30 days of Radio Dünya (Adana), which had broadcast Kurdish music. However, in April 2005, the Council of State overruled a previous decision by RTÜK against the same station, ruling that it should not face sanctions for broadcasting Kurdish music.

An amendment to Article 133 of the Constitution was adopted in June 2005 by Parliament, with a view to changing the law such that members of RTÜK are elected by the political parties represented in Parliament. In July a new RTÜK board was elected (see Chapter 20: Culture and audiovisual policy).

As regards freedom of association, the new Law on Associations entered into force in November 2004. As outlined in last year’s report, the Law is important in reducing the possibility for state interference in the activities of associations and has already begun to bring a number of practical benefits for associations, thus facilitating the further development of civil society in Turkey.

However, the March 2005 regulation, detailing the implementing rules for this Law, imposes restrictions on the registration of associations whose name and/or objectives are considered to be contrary to the Turkish Constitution. This is of particular concern in relation to constitutional articles referring to the integrity of the state or the interpretation of the principle of secularism. In practice, this means that, in contravention of Article 11 ECHR (freedom of assembly and association), associations whose objective includes promoting a certain cultural identity or a particular religion will still not be able to register. Indeed, there have already been reports of such associations encountering difficulties when seeking to register officially.

The regulation also contains various notification procedures, particularly in relation to the receipt of finances from abroad. In practice, such requirements have created difficulties for some associations, which have encountered significant delays in the receipt of funds. The implementation of such procedures will have to continue to be closely followed in order to assess their compatibility with Article 11 ECHR.

Under the Law on Associations, foundations are subject to the same procedures regarding funding from abroad, meaning that they should no longer require permission to receive such funds. However, according to a January 2005 circular from the Ministry of Interior, their statute must contain a clause granting them permission to receive these funds.

The Department of Associations has now taken over responsibility for associations from the Directorate General of Security in all 81 provinces. While the local associations desks are now located within the governors’ offices, the personnel working for these desks are often the same as those who had previously worked for the Directorate General for Security.

Notwithstanding the remaining restrictions on the registration of associations under the new regulation, some associations established on the basis of race, ethnicity, religion, sect, region, and other minority groups have been able to register. For example, in December 2004 the Ankara Kurdish Democracy, Culture and Solidarity Association was finally registered following an amendment to its statute.

The Kurdish Writer’s association, which faced charges on the grounds that it held a meeting with representatives of the European Commission in May 2004 without seeking prior permission, was acquitted by a court in Diyarbakir in October 2004.

However, the new legislation is not yet being consistently and uniformly implemented. For example, in some regions NGOs complain that they are still required to notify association desks in order to conduct cultural activities, panels or meetings even though this is no longer a legal requirement.

In September 2005, the registration of Kaos GL Gay and Lesbian Cultural Research and Solidarity Organisation was temporarily blocked by Ankara’s Deputy Governor. In a letter to the association and to the local prosecutor, he noted that the Civil Code proscribes the establishment of an association which is “contrary to law and morality”. However, the prosecutor decided not to pursue the case, concluding that homosexuality cannot be equated with immorality.

Human rights defenders continue to encounter significant judicial harassment in practice, as illustrated by the number of open investigations and prosecutions. For example, since August 2004, 50 court cases and 3 investigations have been launched against the Human Rights Association. In the report on her October 2004 visit to Turkey, published in January 2005, the UN Special Representative for Human Rights Defenders “expresses grave concern with the large number of prosecutions filed against human rights defenders and their organizations”. A new article in the Code of Criminal Procedure, preventing human rights lawyers from representing defendants accused of certain crimes if they are themselves being investigated under particular articles of the Turkish Penal Code, is of particular concern in this regard (see section on the judicial system). In April 2005 a number of members of the Human Rights Association received death threats, which are being investigated by the authorities.

Both associations and foundations continue to encounter difficulties if they conduct work that is not considered to be in conformity with their statute, or if their statute is considered to be in contravention of the Constitution. In July 2005, the Kurdish Democracy, Culture and Solidarity Association in Diyarbakir was closed pending the outcome of a trial launched in connection with a statement in its statute relating to education and broadcasting in Kurdish. Moreover, certain foundations have been prevented from using European Commission grants because the project proposal was considered to go beyond the parameters of their statutes.

In May 2005, the Court of Cassation ruled to close the teachers’ union Eğitim Sen, on the grounds that a clause in its statute calling for education in mother tongue languages was in contravention of the Turkish Constitution. The legal action against the union was initiated by the Ministry of Labour and Social Security, under pressure from the General Staff, in June 2003. In September 2004 and February 2005 the Ankara Labour Court ruled in favour of Eğitim Sen, arguing that the Turkish Constitution should be interpreted in accordance with the ECHR, and that a decision to close down the union was not in compliance with Articles 10 (freedom of expression) and 11 (freedom of association) of the Convention. The May 2005 decision of the Court of Cassation reversed this ruling, stipulating that “freedom of association can be limited for the protection of national security, integrity of the country and public order” and that “Turkish citizens cannot be provided education in a language other than Turkish”. The union has withdrawn the clause on mother tongue education pending the outcome of an application to the ECtHRs for an interim measure to block the union’s closure (see also sections on the judicial system and trade unions).

As regards the right to peaceful assembly, while public demonstrations are subject to fewer restrictions than in the past, a number of incidents have raised concerns. In several regions brutality by the security forces has been alleged in the context of demonstrations and outdoor NGO press statements.

During a demonstration marking international Women’s Day in Istanbul on 6 March 2005, police intervened with disproportionate force, using tear gas and truncheons and injuring a number of participants. The government quickly conveyed the message that such behaviour on the part of the police is unacceptable. Following the incident, the Ministry of Interior demoted and fined 6 policemen and reprimanded 3 senior officials. A judicial investigation, launched by the Istanbul Public Prosecutor, is ongoing.

Following this incident, in April 2005 the Ministry of Interior issued a circular, reminding governors of the importance of implementing the August 2004 circular, which sought to prevent the use of disproportionate force by members of the security forces and ensure appropriate sanctions when excessive force is used. The new circular emphasises the need for the inspection body within the Minist