TABLE OF CONTENTS

1........... Introduction.................................................................................................................... 3

1.1........ Preface........................................................................................................................... 3

1.2........ Context.......................................................................................................................... 3

1.3........ Relations between the EU and Turkey............................................................................. 3

2........... Political criteria and enhanced Political dialogue............................................................... 5

2.1........ Democracy and the rule of law........................................................................................ 6

2.2........ Human rights and the protection of minorities................................................................... 6

2.3........ Regional issues and international obligations................................................................... 21

3........... Economic criteria.......................................................................................................... 46

3.1........ The existence of a functioning market economy.............................................................. 48

3.2........ The capacity to cope with competitive pressure and market forces within the Union........ 48

4........... Ability to assume the obligations of membership............................................................. 53

4.1........ Chapter 1: Free movement of goods............................................................................. 55

4.2........ Chapter 2: Freedom of movement for workers.............................................................. 60

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

4.4........ Chapter 4: Free movement of capital............................................................................. 61

4.5........ Chapter 5: Public procurement...................................................................................... 62

4.6........ Chapter 6: Company law.............................................................................................. 64

4.7........ Chapter 7: Intellectual property law............................................................................... 65

4.8........ Chapter 8: Competition policy....................................................................................... 66

4.9........ Chapter 9: Financial Services........................................................................................ 67

4.10...... Chapter 10: Information society and media.................................................................... 69

4.11...... Chapter 11: Agriculture and rural development.............................................................. 70

4.12...... Chapter 12: Food safety, veterinary and phytosanitary policy......................................... 72

4.13...... Chapter 13: Fisheries.................................................................................................... 74

4.14...... Chapter 14: Transport policy........................................................................................ 75

4.15...... Chapter 15: Energy....................................................................................................... 78

4.16...... Chapter 16: Taxation.................................................................................................... 80

4.17...... Chapter 17: Economic and Monetary policy.................................................................. 81

4.18...... Chapter 18: Statistics.................................................................................................... 82

4.19...... Chapter 19: Social policy and employment.................................................................... 83

4.20...... Chapter 20: Enterprise and industrial policy................................................................... 86

4.21...... Chapter 21: Trans European Networks......................................................................... 87

4.22...... Chapter 22: Regional policy and coordination of structural instruments........................... 88

4.23...... Chapter 23: Judiciary and fundamental rights................................................................. 89

4.24...... Chapter 24: Justice, freedom and security...................................................................... 95

4.25...... Chapter 25: Science and research............................................................................... 103

4.26...... Chapter 26: Education and culture............................................................................... 105

4.27...... Chapter 27: Environment............................................................................................ 106

4.28...... Chapter 28: Consumer and health protection............................................................... 109

4.29...... Chapter 29: Customs Union........................................................................................ 111

4.30...... Chapter 30: External relations..................................................................................... 112

4.31...... Chapter 31: Foreign, Security and Defence Policy....................................................... 113

4.32...... Chapter 32: Financial control...................................................................................... 115

4.33...... Chapter 33: Financial and budgetary provisions........................................................... 117

Statistical Annex....................................................................................................................... 118

1. Introduction 1.1. Preface

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

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

– briefly describes the relations between Turkey and the Union;

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

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

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

This report covers the period from October 2010 to September 2011. Progress is measured on the basis of decisions taken, legislation adopted and measures implemented. As a rule, legislation or measures which are being prepared or awaiting Parliamentary approval have not been taken into account. This approach ensures equal treatment across all reports and permits an objective assessment.

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

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

1.2. Context

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

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

1.3. Relations between the EU and Turkey

Accession negotiations with Turkey continued. During the preparatory analytical phase, the level of preparedness to start negotiations on individual chapters has been assessed on the basis of screening reports. Out of a total of 33 screening reports, one has still to be delivered to the Council by the Commission, whilst nine are being discussed in the Council.

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

The enhanced political dialogue between the EU and Turkey has continued. A political dialogue meeting was held at political director level in July 2011. These meetings focused on the main challenges faced by Turkey in terms of the Copenhagen political criteria and reviewed the progress made towards fulfilling Accession Partnership priorities. Foreign policy issues relating to regions of common interest to the EU and Turkey, such as the Middle East, Western Balkans, Afghanistan/Pakistan and the Southern Caucasus, were also regularly discussed. Turkey has become more active in its wider neighbourhood and is a leading regional player. A number of high-level visits from Turkey to the European institutions took place during the reporting period.

The EU-Turkey Customs Union continues to boost bilateral trade between the EU and Turkey, which totalled € 103 billion in 2010. Turkey is the EU's seventh biggest trading partner while the EU is Turkey's biggest. Almost half of Turkey's total trade is with the EU and almost 80% of FDI in Turkey comes from the EU. However, Turkey is not implementing the Customs Union fully and maintains legislation that violates its commitments under the Customs Union. As a result, several trade issues remain unresolved. A number of Turkey's commitments on removing technical barriers to trade such as import licences, restrictions on imports of goods from third countries in free circulation in the EU, State aid, enforcement of intellectual property rights, requirements for the registration of new pharmaceutical products and discriminatory tax treatment remain unfulfilled. Progress can be reported on Turkey's long-standing ban on imports of live bovine animals, beef meat and other animal products. The EU urged Turkey to remove all remaining restrictions on the free movement of goods, including on means of transport regarding Cyprus, and to implement the Customs Union fully.

The EU is providing guidance to the authorities on reform priorities under the Accession Partnership adopted in February 2008. Progress on these reform priorities is encouraged and monitored by the bodies set up under the Association Agreement. The Association Committee met in March 2011 and the Association Council in April 2011. Eight sectoral sub-committee meetings have been held since November 2010.

The multilateral economic dialogue between the Commission, EU Member States and Candidate Countries in the context of the pre-accession fiscal surveillance continued, including a meeting at Ministerial level in May in Brussels. These meetings focused on the main challenges posed to Turkey by the Copenhagen economic criteria.

As regards financial assistance, some € 781.9 million have been earmarked for Turkey from the Instrument for Pre-accession Assistance (IPA) in 2011. The revised Multiannual Indicative Planning Document (MIPD) for 2011-2013, was adopted by the Commission in June 2011. The new MIPD follows asector-based approach and aims to focus assistance on political priorities better in order to achieve a greater impact. Support is focusing on institutions directly concerned by political reforms in the judiciary and law enforcement services, on adoption and implementation of the acquis in priority areas and on economic, social and rural development. In addition, Turkey is benefiting from a series of regional and horizontal programmes under IPA.

Under both the national programme and the Civil Society Facility, greater EU financial support has been provided to civil society, in particular to strengthen the capacity of civil society organisations and encourage a civil society dialogue between Turkey and the EU. Support has also been given for participation by Turkey in EU programmes and agencies.

Assistance under IPA is implemented by means of decentralised management, which means that it is managed by the Turkish authorities as a result of an accreditation process carried out by the Commission that was completed in 2009 for IPA components I-IV and in August 2011 for component V. In 2011 implementation got under way and absorption of funds started to increase. Nevertheless, delays continued to occur and Turkey needs to strengthen its capacity to deliver results, absorb funds, develop a project pipeline and implement all IPA components in a timely manner. The supervision by the National Authorising Officer needs vigorously to address weaknesses in the system, including monitoring and improving the quality and efficiency of the project and programme cycles.

Turkey actively participates in the following EU Programmes and Agencies: Seventh Research Framework Programme, Customs 2013, Fiscalis 2013, European Environment Agency, Competitiveness and Innovation Framework Programme (including Entrepreneurship and Innovation Programme and Information Communication Technologies Policy Support Programme), Progress, Culture 2007, Lifelong Learning and Youth in Action. IPA funds are used to meet part of the costs of participation in most of these programmes.

The Turkish ratification of the agreement for their participation in the European Monitoring Centre for Drugs and Drug Addiction remains outstanding.

2. Political criteria and enhanced Political dialogue

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

2.1. Democracy and the rule of law

General elections took place on 12 June 2011 with a high turnout. The electoral process was free and fair and was generally marked by pluralism and a vibrant civil society. Voting and counting on election day were mostly calm and professionally managed (See section on Parliament). Over the reporting period, concerns were raised regarding freedom of expression, including media freedom. The prevailing political climate, lacking an adequate dialogue and spirit of compromise between political parties, strained relations between key institutions; this atmosphere hampered the continuation of the reform process. The Sledgehammer trial, the first ever into an alleged coup plan in Turkey, began in December 2010. Following the seizure of evidence at the Gölcük navy headquarters a total of 163 military officers (of whom 106 serving), including several former top commanders, were arrested. They were charged of attempting to overthrow the government through force and violence. Requests for the release of defendants were refused. According to official data, the number of defendants has risen to 224, 183 of whom are under arrest. Restrictions on access to certain evidence referred to in the indictment raised concerns about the rights of the defence and to a fair trial. The failure to give detailed grounds for decisions on detention is another source of concern raised by the defence (See also section on civilian oversight of security forces).

The trial of the alleged criminal network Ergenekon continued. The judicial investigation expanded further and, according to official data, the number of defendants has risen to 238, 53 of whom are under arrest. The investigation into alleged media involvement continued with the detention of a number of journalists, among whom prominent supporters of the investigation into Ergenekon. In March 2011, copies of an unpublished book written by one of the arrested journalists were confiscated on the orders of a court for being a "document of a terror organisation". Confiscation of an unpublished book as evidence of crime raised concerns about press freedom in Turkey and the legitimacy of the case (See section on freedom of expression).

A linkage was made by the judiciary between the Ergenekon case and the murder of three Protestants in Malatya in April 2007. Several people, including the former commander of the gendarmerie in Malatya, were detained in March 2011. This was followed by a search of the homes and offices of several theology professors known for their work on missionary activities in Turkey.

The time lag between the arrests and presentation of indictments, the restricted access by the defence to evidence put forward by the prosecution and the secrecy of investigation orders fuelled concerns about effective judicial guarantees for all suspects. The same applies to the extensive application of arrest-related articles of the Code on Criminal Procedures, which at certain instances can have the same effect as punitive measures. The length of pre-trial detention is a cause for concern (See section on the judicial system).

The three specially authorised prosecutors in the Ergenekon case were reassigned to other duties by the High Council of Judges and Prosecutors (HSYK) in March 2011. The Deputy Director of Intelligence for Istanbul in charge of the Ergenekon enquiry was also moved to a new post. These measures were viewed as reflecting the judicial authorities' and the government's unease with the handling of the investigation.

Concerns about judicial procedures were also reported in connection with the KCK[4] case in which around 2,000 politicians, locally elected representatives and human rights activists in the south-east have been detained since April 2008. The investigation continues to widen. The main KCK trial of 152 defendants (104 of whom are under arrest) charged with membership of an illegal armed organisation started in October 2010. However, the trial came to a standstill after the court refused to hear the defence in Kurdish. Frequent use of arrests instead of judicial supervision, limited access to files, failure to give detailed grounds for detention decisions and revisions of such decisions highlight the need to bring the Turkish criminal justice system into line with international standards and to amend the anti-terror legislation. The detention of elected representatives is a challenge to local government and hampers dialogue on the Kurdish issue.

Overall, the Ergenekon investigation and the investigations into other alleged coup plans remain an opportunity for Turkey to shed light on alleged criminal activities against democracy and to strengthen confidence in the proper functioning of its democratic institutions and the rule of law. However, concerns remain over the handling of investigations, judicial proceedings and the application of criminal procedures putting at risk the rights of the defence. The lack of any authoritative source of information on all these issues of wide public interest from either the prosecution offices or the courts raises similar concerns. All of this raised concerns in the public about the legitimacy of the cases.

Constitution

After the constitutional reform package was approved by referendum in September 2010, the government launched work on implementing it. Priority was given to the reform of judicial structures, with laws on the High Council of Judges and Prosecutors[5] and on the Constitutional Court adopted in December 2010 and March 2011, respectively. These laws addressed a number of priorities of the Accession Partnership and criticisms of the previous system. The Venice Commission of the Council of Europe had been consulted in the process.

Since the September 2010 constitutional referendum and the June 2011 elections, consensus has emerged on the need for a new Constitution to replace completely the 1982 Constitution, which had been adopted following the 1980 military coup. The governing party has pledged a democratic and participatory process with the broadest possible consultation. The Parliament Speaker consulted constitutional lawyers on the process of drafting and adopting a new constitution; he also authorised the launch of a website to function as a forum for public contributions and has started the nomination of three members from each of the four parties present in Parliament for the ad hoc drafting committee. Further concrete steps need to guarantee an inclusive process with the involvement of all political parties and civil society.

However, the adoption of legislation implementing the September 2010 constitutional amendments was not accompanied by broad and effective public consultation involving stakeholders in the country, despite government commitments to this (See section on the judicial system).

Overall, there has been some progress in implementing the 2010 constitutional reform, notably in the field of the judiciary. A new Constitution would cement the stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities and address long-standing problems, including the Kurdish issue. Both the government and the opposition are committed to working on a new Constitution upholding freedoms. Due attention needs to be paid to ensuring the broadest possible consultation in this work, involving all political parties and civil society.

Parliament

The Turkish Grand National Assembly (TGNA) convened for the first time early July 2011 and elected former Deputy Prime Minister Mr Cemil Çicek as its 25th speaker. He was elected in a third round with 322 votes.

Earlier, on 12 June Parliamentary elections had taken place, leading to a major renewal of parliament with 349 first-time MPs (64% of the total). The incumbent AKP remained the leading party with popular support running at 49.1%, ahead of the CHP on 25.9% and the MHP with 13%. The BDP-backed independent candidates received 6.7% of the votes. The AKP secured 326 parliamentary seats, four short of the three-fifths majority needed to put constitutional amendments to a referendum without the support of other parties. The CHP won 135 seats, the MHP 53 and the BDP 36. The number of female parliamentarians increased from 48 to 78. The highest number of female members of parliament is amongst the AKP (45), followed by the CHP (19), BDP-led bloc (11), and the MHP (3).

The elections took place in a generally peaceful atmosphere. For the first time, political parties and candidates were able to purchase broadcasting time for political advertisements. In March 2011 the Supreme Election Board (YSK) ruled that, while political parties and candidates will principally use Turkish in their advertising, use of other languages, including Kurdish, is possible[6]. Various parties tried to target Kurdish voters by running election campaign advertisements on TRT 6, the first national Kurdish language TV station. Their requests to do so were rejected by YSK.

On the one hand, international observers (the OSCE Office for Democratic Institutions and Human Rights (ODIHR)) praised the electoral process as democratic, pluralistic and shaped by a vibrant civil society, on the other they also criticised worrying developments concerning fundamental freedoms, in particular freedom of expression.

However, the campaign was marred by some tension and violence. A terrorist attack killed a policeman escorting governing party officials following a rally in May 2011. Violent incidents causing damage to offices of political parties were also reported across Turkey.

No changes were made to the electoral system. The 10% of the national vote required for representation in parliament, which is the highest threshold in any Council of Europe member state, remains, despite calls by political parties and civil society organisations for it to be lowered. This issue featured prominently during the election campaign.

As regards the functioning of parliament, the TGNA enacted a large number of laws in its final legislative year before going into recess in early April 2011. Several of them covered areas related to the Copenhagen political criteria. These included the implementing legislation adopted following the 2010 constitutional amendments, legislation restructuring the high courts with the objective to decreasing the backlog of cases and the Law on the Turkish Court of Accounts (TCA).

The Law on the TCA was adopted in December 2010. It authorises the Court to audit public expenditure on behalf of parliament, thus strengthening parliamentary oversight. The TGNA's Strategic Development Plan for 2010-2014 addresses key organisational and management issues.

However, the polarisation of the government and opposition hampered work on political reforms, notably in parliament, and was not conducive to holding the executive to account on policy matters. The capacity of parliament to monitor performance and conduct external audits is still insufficient. Closer interactive dialogue and cooperation between parliament and the TCA is needed. There was no progress on improving parliament's rules of procedure. Since 2009 a draft has been pending.

No progress was made on aligning legislation on the procedures and grounds for closing political parties with European standards either. In December 2010, the European Court for Human Rights (ECtHR) found that Turkey had violated the right to freedom of assembly and association[7] in the 2003 ban of the People's Democracy Party (HADEP). This was the ninth judgment against Turkey for banning a political party.

There are concerns about the wide scope of parliamentary immunities, notably from arrest in cases concerning corruption, and also over the selective and restrictive interpretation of the law in cases concerning freedom of expression of members of parliament. The nomination by opposition parties of suspects being tried in the ongoing Ergenekon, Sledgehammer and KCK cases for election to parliament posed a new challenge to the interpretation of Article 14 of the Constitution, which restricts immunities when crimes against the 'integrity of the State' are concerned. This has been invoked against MPs of Kurdish origin in the past.

When the courts refused to release 8 MPs-elect from prison, and the YSK decided to strip one MP-elect of his status, the CHP and BDP MPs-elect refused to take their oath at the constituting session of Parliament. In July, though, the CHP MPs took their oath and in the beginning of October the BDP MPs-elect did so as well. General concerns about long pre-trial detentions and the restrictive interpretation of anti-terror-legislation are thus also highlighted by the number of MPs-elect in prison. The proposal by the main opposition party for a code of ethics for parliamentarians was not followed up. Two former MPs from the closed-down DTP had their ban from political office overturned, but were not reinstated in parliament.

Overall, elections were held in line with international standards. The electorate returned a parliament with 349 first-time MPs (64% of the total). Women and minorities, including non-Muslims and the disabled, were underrepresented. Laws concerning financing of political parties and election campaigns, closure of political parties and parliamentary immunities have yet to be aligned with European standards. Further efforts are needed to strengthen parliament's capacity to perform its functions of law-making and oversight over the executive.

President

The President continues to maintain his conciliatory role in the face of the polarisation prevailing in the country.

He addressed a number of key issues affecting Turkey, with constructive statements and interventions. In December 2010, he paid a visit to Diyarbakir, becoming the first President to visit the BDP-run municipality in ten years. Amid demands for democratic autonomy and bilingualism, he reiterated his commitment to addressing the Kurdish issue. In January 2011, the President instructed the State Supervisory Council (SSC) to conduct a thorough inquiry into the Hrant Dink murder case, acknowledging embarrassment at Turkey's failure to conclude the judicial process in line with a ruling by the ECtHR back in December 2010. On several occasions, he criticised long detention periods in the ongoing alleged coup trials as constituting de facto punishment.

The President continued to play an active role in foreign policy.

There is still ambiguity around the term of office of the President, which may run until 2012 or 2014, depending on how the YSK interprets the October 2007 constitutional amendment, which introduced direct presidential elections for a period of five years.

Government

Three months before the June elections the Prime Minister announced a substantial restructuring of the Turkish administration, targeting primarily the ministerial level.

After the elections, the 61st cabinet of the Turkish Republic was approved by the President on 6 June 2011.

The government decided to establish a Ministry of EU Affairs and appointed an EU Minister for the first time. The new structure assigns responsibility for the accession negotiations to the EU Minister as Chief Negotiator and Head of the Negotiation Delegation.

As regards the functioning of government and local government, the government started implementing its action plan to apply the 2010 constitutional amendments. It submitted draft legislation to parliament on the Turkish Court of Accounts (TCA), the Supreme Board of Radio and Television, military service, the High Council of Judges and Prosecutors and on the restructuring of the Court of Cassation, Council of State and Constitutional Court.

The government reaffirmed its commitment to EU accession on several occasions and, in particular, through the establishment of an EU Ministry after the June elections. The EU Minister and Chief Negotiator continued his efforts to further streamline inter-ministerial work for the accession negotiations and to involve civil society in the process. The Reform Monitoring Group continued to meet. Progress was achieved at provincial level on coordination and dissemination of EU-related information and work, following the designation, in 2010, of a deputy governor in each province responsible for EU affairs.

However, the follow-up to the 2008 National Programme for the Adoption of the Acquis (NPAA) and of the 2010-2011 Action Plan outlining legislation to be enacted needs to be improved.

No progress has been made on devolution of powers to local government, in particular with transferring financial resources to local administrations. Municipalities are thus heavily dependent on centrally allocated revenue. No steps have been taken to implement the 2007[8] Recommendations of the Council of Europe Congress of Local and Regional Authorities to use languages other than Turkish in public services or to reform the Municipality Law to allow mayors and municipal councils to take 'political' decisions without fear of judicial proceedings being launched against them. The continuing detention of several elected mayors and local representatives in the south-east in connection with the KCK case poses a challenge for local government (See situation in the east and south-east).

Overall, the government gave priority to implementing the 2010 amendments to the Constitution. Progress was made prior to the elections, notably in the field of the judiciary. Work on a new Constitution would further advance the reform agenda, including on devolving adequate powers to local government. However, the declared commitment to EU accession was not sufficiently reflected in the implementation of the national programmes.

Public administration

The 2010 amendments to the Constitution introduced access to information as a constitutional right. In line with the new constitutional provisions which pave the way for an Ombudsman institution, a draft law was submitted to parliament in January 2011. The government consulted, and developed a good working relationship with, the European Ombudsman.

The revised Law on the Turkish Court of Accounts (TCA) marks progress on implementing the Public Financial Management and Control Law, by granting the TCA an external audit mandate over most public expenditure. In order to raise awareness on accountability and enhance transparency, these reports are to be public and easily available, with minimum exceptions on grounds of 'national security'.

Progress has been reported in the preparations for strategic plans by public institutions, with almost all institutions adopting such plans that have subsequently been reviewed by the State Planning Organisation.

In February 2011, amendments to the Civil Service Law introduced benefits for temporary and contractual public servants who are disabled, pregnant or parents of newborn babies.

Work on providing basic public services on-line (e-government) continued, with a view to increasing transparency and accountability. Regulatory impact assessments (RIAs) and application of RIA guidelines enhanced the quality of regulations on several projects.

However, the comprehensive civil service reform required to modernise human resources management has yet to materialise. Such a reform would ensure transparency and merit-based advancement and appointments, in particular to high-level positions. Red tape has not been reduced.

A government request for parliamentary authorisation to rule by decree-law on a number of specific issues for a period of six months was granted amid strong criticism by the opposition in April 2011. The declared aim was to facilitate restructuring of the central administration, by establishing, merging or closing ministries. One of the main changes is the introduction of an additional level between the Minister and the undersecretary of "deputy minister" in 20 of the ministries. These posts can be given to officials from outside the parliament, including representatives of the private sector. The parliamentary authorisation also empowered the government to amend the Civil Service Law in order to regulate the principles and procedures for the appointment, promotion, transfer or compulsory retirement of officials, workers and contract personnel employed in public institutions.

The Law establishing the Ombudsman has yet to be adopted. A draft has already been submitted to parliament. It provides for a Head Ombudsman to be elected by parliament. There could be up to four rounds of voting; in the fourth, the Head Ombudsman is elected by simple majority. As the Ombudsman does not issue binding decisions, he or she must be held in high regard by the people and be perceived as non-partisan, fair, impartial and reasonable. In this regard, EU Member States' practice requires consensus and, thus, involves high parliamentary majorities for election of the Ombudsman. The draft also provides that transactions by the army of a military nature do not fall under the powers of the Ombudsman. The practice in most EU Member States is that an Ombudsman oversees the military in one way or another. Other provisions of the draft would empower the Ombudsman to respond to individual complaints and recommend improvements in the way the public administration works. There are no provisions allowing the Ombudsman to conduct inquiries on his or her own initiative. Finally, the draft grants Turkish citizens up to 90 days to submit complaints to the Ombudsman. This is short compared with practice at EU level.

Further efforts are needed to build capacity to implement the revised Law on the TCA and to carry out the full range of government auditing so that the TCA can fulfil its role of ensuring accountability in the public administration. Efforts are also required to implement the Public Financial Management and Control Law, particularly on strengthening internal audit capacity and the strategy development units and implementing strategy documents.

A decree adopted in August 2011 authorises relevant ministers to monitor and inspect all kinds of activities and transactions of independent regulatory authorities established in recent years in line with obligations stemming from the acquis or international standards. This raises concerns as to the independence of the regulatory authorities when carrying out their duties in a number of policy areas such as competition, energy and information society.

No progress can be reported on the decentralisation process. Devolution of powers, in particular transfer of financial revenues to local administrations has not materialised.

Overall, there has been some progress in legislative reforms with regard to the public administration and civil service. Attention needs to be paid to establishment of the Ombudsman institution. Greater political support for public administrative reform and decentralisation is necessary.

Civilian oversight of security forces

In October 2010, the National Security Council approved a revised National Security Policy. This document is not public. It was reportedly prepared mainly by the civilian authorities.

The investigation into the "Sledgehammer" alleged coup case was extended with the arrest of further officers, mostly from the Air Force. Hearings of the case continued before the 10th Istanbul Serious Crimes Court in Silivri. (see section 2.1 Democracy and the Rule of Law) The trial of seven suspects, including a former Kayseri Gendarmerie Brigade Commander and a former Mayor of Cizre, who are charged with twenty murders in the Southeast, is continuing. On the initiative of NGOs and in response to requests from the families of missing persons, excavations of mass graves have started. Calls for a "truth commission" have been rejected. Further to the 2010 constitutional amendments, decisions by the Supreme Military Council concerning dismissals of military personnel have been opened to civilian judicial review. Military officers dismissed from the army now have the right to appeal against their dismissals and retire with benefits or to obtain employment at a state institution. A commission has been set up within the Ministry of Defence to examine applications and decide within a year. Following a decision by the Military Court of Cassation the Şemdinli case[9]is now tried by the Van Serious Crimes Court, a civil court. During the first hearing in July the court accepted a lawyers' request to investigate four high-ranking officers, including a former Chief of Staff.

As regards civilian oversight of military expenditure, good progress was made, in the form of adoption of the Law on the Court of Accounts in December 2010. This provides for external ex-post audits of armed forces' expenditure. It also paves the way for audits of extra-budgetary resources earmarked for the defence sector, including the Defence Industry Support Fund.

The Under-Secretariat for Public Order and Security, established in 2010 to develop and coordinate counter-terrorism policies, and affiliated to the prime Ministry since July 2011, came into operation and served as Secretariat for the Counter-Terrorism Coordination Board. The Board convened for the second time in February 2011.

The number of incidents where the armed forces exerted formal and informal influence over political issues beyond their remit continued to decrease.

On the eve of the Supreme Military Council of August 2011, the Chief of Staff, along with the Force Commanders, requested their retirement. Appointment of the force commanders in the Supreme Military Council meeting without any delay affirmed the government's control over the appointment of top-level commanders. However, promotions continue to be determined by the General Staff with limited civilian control. Further reforms on the composition and powers of the Supreme Military Council, particularly on the legal basis of promotions, still need to materialise.

For the first time, President Gül briefed the Speaker of Parliament and the leader of the main opposition party about the content of the National Security Council after the meeting in August.

However, on some occasions, the armed forces made comments about ongoing court cases and investigations. Civilian oversight needs to be further reinforced, particularly in relation to the law enforcement duties of the gendarmerie and to the military justice system. The gendarmerie does not report to the Ministry of the Interior and disciplinary offences are taken to the General Staff, bypassing both the Ministries of the Interior and Defence. The Law on the provincial administrations, which provided the legal basis for the annulled EMASYA Protocol allowing military operations to be carried out without the consent of local civilian authorities, has yet to be amended. There is a lack of transparency and accountability in institutions in the security sector, particularly those with intelligence duties.

The existing legislation, including the Law on the establishment and proceedings of military courts defining the functions and jurisdiction of these courts has yet to be amended in order to turn the new constitutional provisions into legal reality. These new constitutional provisions include matters related to the jurisdiction of military courts, the trial of the Chief of Staff and the commanders of the armed forces by the Constitutional Court for offences related to their duties and the trial by civilian courts of offences against the security of the State. Finally, the lack of judicial review of all decisions regarding career management by the Supreme Military Council and all other military authorities, remains a concern.

The exclusion of the Foundation for Strengthening the Armed Forces, which controls significant financial expenditure , from the audit mandate of the TCA is a major shortcoming of the revised Law on the TCA. Publication of the external audit reports on defence, security and intelligence institutions will be governed by a regulation yet to be adopted by the Council of Ministers.

No change was made to the Internal Service Law of the Turkish armed forces, which defines the duties of the military and contains an article leaving the military significant scope for intervention in politics. The Law on the National Security Council was not amended and continues to provide a broad definition of security which, depending on interpretation, could cover almost any policy field. The Chief of Staff continues to report to the Prime Minister rather than the Minister of Defence.

The selective accreditation by the military of certain media has continued. The secondary school curriculum continues to include a national security course given by military officers.

Overall, good progress has been made on consolidating the principle of civilian oversight of security forces. The Supreme Military Council of August 2011 was a step towards greater civilian oversight of the armed forces. Civilian oversight of military expenditure was tightened and a revised National Security Plan adopted. In addition, Supreme Military Council decisions were opened to civilian judicial review. However, further reforms - on the composition of the Supreme Military Council, military justice system and the Personnel Law of the Turkish Armed Forces – are still needed. In several instances, legislation intended to increase civilian oversight of the military (the Court of Accounts Law and the draft Ombudsman Law) was amended in parliament, weakening such oversight. On some occasions, the General Staff made comments on ongoing court cases.

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

There has been progress in the reform of the judiciary, notably with implementing the 2010 constitutional amendments.

As regards the independence of the judiciary, a Law on the High Council of Judges and Prosecutors was adopted in December 2010. The government consulted the Venice Commission of the Council of Europe. This law, together with the constitutional amendments approved by referendum in September 2010, established a new composition of the High Council[10] that is more pluralistic and representative of the judiciary as a whole. Sixteen of its judicial full members (out of twenty-two) and all twelve substitutes are now elected directly by judicial bodies.

Ministerial influence has been reduced: the Minister of Justice remains President of the High Council and the Undersecretary remains an ex officio member, but as a result of the enlargement of the Council, the Ministry now accounts for less than 10% of the total membership. The Minister of Justice does not sit in any of the three chambers where work is conducted, nor does he participate in plenary meetings on disciplinary matters. The Minister and the Undersecretary no longer have the possibility to obstruct the decision-making process of the High Council by their mere absence. Previously, they had an 'empty chair' blocking power that they actually used.

The Inspection Board, previously under the Ministry of Justice, has now been transferred to the High Council. Anonymised versions of decisions can be published on the High Council's official website. This promotes legal certainty and confidence in the proper administration of justice. As regards effective remedies, appeals to judicial bodies against decisions concerning dismissal from the profession are now permitted. The newly elected High Council held meetings in provinces with judges and prosecutors to collect information and discuss reform proposals.

Ten full and six substitute members of the High Council were elected by first-instance judges and prosecutors in October 2010. More than 98% of the first-instance judges and prosecutors voted. Participation as candidates was open to all judges and prosecutors, including those working at the Ministry of Justice. The vote was secret and campaigning prohibited. An appeal to the Supreme Election Board (YSK) alleging unfair elections and undue influence by the Ministry of Justice was rejected unanimously. The High Council started to function with its 22 full members in November as a public legal entity with administrative and financial autonomy from the Ministry of Justice.

However, in elections of members of the High Council, every judge and prosecutor has the right to cast as many votes as the number of full and substitute Council members to be elected. In this system imposed by the Constitutional Court, candidates who are voted by the majority could take all the seats, thus excluding those supported by voters from a minority. Nomination of the four non-judicial members of the High Council is left to the discretion of the President of the Republic, whereas the National Assembly is not involved. The current provisions do not ensure permanent representation of members of the Bar in the High Council.

The Minister can veto the launching of disciplinary investigations against judges and prosecutors by the High Council. The judicial review does not cover all first-instance decisions of the High Council, potentially affecting judicial independence or impartiality (e.g. decisions concerning promotions, transfers to another location and disciplinary sanctions). Rules on dismissal of judges and prosecutors from the profession lack clarity and precision. Assessment of the professional performance of judges and prosecutors is over-centralised. Assessment criteria applied by the inspectors need to guarantee judicial independence in practice[11].

In the polarised atmosphere that followed the adoption of the constitutional amendments and relevant legislation by parliament, the presidents and members of the high courts voiced criticism of the judicial reforms. Independent associations of judges and prosecutors expressed concern about the reforms, notably with regard to the independence of the judiciary. Some Bar Associations also expressed concern.

The Semdinli case is still pending (See the chapter on the civilian oversight of the security forces). In April, the current High Council reinstated the civilian prosecutor, previously in charge of the case, into the profession. The dismissal of this prosecutor in 2006 had raised questions about the independence of the judiciary[12].

With regard to impartiality, a Law on the Constitutional Court was adopted in March 2011. The government consulted the Venice Commission of the Council of Europe. This law, together with the constitutional amendments approved by referendum on 12 September 2010, enlarged the normal membership of the Court. This has reduced the relative weight of high courts' representatives and made the Constitutional Court more representative of the legal community and society at large. Under the old system all members of the Constitutional Court were ultimately selected and appointed by the President of the Republic. Now three members (i.e. approximately 18% of the membership) are elected by the Turkish Grand National Assembly.

The powers of the Constitutional Court have been extended by introducing the individual application procedure. Anyone who claims that any of his or her fundamental rights and freedoms guaranteed by the Constitution has been violated by the public authorities can apply to the Constitutional Court, provided he or she has exhausted all ordinary legal remedies. Such individual applications reinforce the right of each individual to be heard by an independent and impartial tribunal enshrined in the Turkish Constitution.

However, there is currently a strict representation ratio for various bodies in the membership of the Court. As a consequence, the Constitutional Court is insufficiently representative of the Turkish legal community as a whole and still over-dominated by the high courts. The influence of the Grand National Assembly over the composition of the Constitutional Court is also inadequate, in terms of both the number of members it elects and the choice of eligible candidates. The current election process in the Assembly[13] does not fully guarantee the Court's political impartiality. At the same time, the President of the Republic plays an over-dominant role in the appointment process.

Judges and prosecutors or members of a body nominating candidates for members of the Constitutional Court can cast as many votes as the number of candidates for full and substitute members to be elected. In this system imposed by a decision of the Constitutional Court itself, candidates who are voted by the majority could take all the seats, thus excluding those supported by voters from a minority. The process of selecting the Bar candidates does not ensure that the list of candidates is adequately representative of the overall membership of the Turkish Bars, while at the same time not completely dominated by the large metropolitan Bars. Finally, the presence of two military members of the Constitutional Court is questionable, as constitutional jurisprudence in a democratic system is a civilian matter.

Practical arrangements at courthouses and during trials regarding judges, prosecutors and the defence do not guarantee that the principle of equality of arms is respected or is perceived to be. This continues to cloud the perception of the impartiality of judges.

Senior members of the judiciary and military made statements that could put the impartiality of the judiciary at risk in key cases.

With regard to the efficiency of the judiciary, the Laws on the Court of Cassation and the Council of State were amended in order to tackle their large and increasing backlog of cases. More chambers have been established, working methods modified and a large number of judges and prosecutors appointed. The appointment procedure conducted by the High Council was transparent: the number of votes received by each judge and the procedure followed during the appointment process were published on the website of the High Council.

Legislation was adopted in March 2011 to reduce the workload of first-instance courts. The main aim is to prevent cases from entering the court system, among other things by decriminalising some offences which are now sanctioned by administrative fines and also by introducing legal fees for applicants to Regional Courts of Appeal and to the Court of Cassation and transferring powers to issue certificates of inheritance from courts to public notaries.

The 2011 budget for the judiciary increased to approximately TL 6,1 billion (1.81% of the state budget) from TL 4,7 billion in 2010 (0.55% of GDP).

However, neither an overall common strategic framework nor reliable indicators and benchmarks have been established by the Ministry of Justice and the High Council for Judges and Prosecutors to assess the performance of courts and of the judicial system as a whole. Such a framework, indicators and benchmarks would allow the authorities responsible to assess the human and material resources needed to address the backlog of old cases and the influx of new ones and would provide the basis for optimum allocation of resources and rationalisation of the court network.

The current fragmentation of the Turkish courts, which each have a separate registry and which are not connected with each other even when they are located in the same courthouse, prevents efficient use of the available resources. The regional courts of appeal have not been established yet. By law, they should have been in operation by June 2007. The number of vacancies for judges and prosecutors equals roughly a third of the current judicial staff.

The Ministry and the High Council have yet to develop benchmarks to monitor and assess the duration of court proceedings and improve the efficiency and effectiveness of the judicial system. The backlog of pending cases at the Turkish courts is increasing and Turkey has a large backlog of pending serious criminal cases. In particular, and as regards first instance courts, there were approximately 1.4 million pending criminal cases at the end of 2010, up from 1.2 million at the end of 2009. Similarly, the pending civil cases were 1.1 million at the end of 2010, up from 1 million at the end of 2009, while those at administrative courts reached 200,000 at the end of 2010, an increase of 40,000 as compared to those at the end of 2009.

Special attention needs to be paid to the duration of cases involving pre-trial detention, by giving them priority and ensuring that the duration of the trial is kept to the minimum compatible with the quality of the judicial process and respect of the rights of the defendant. Arrest-related articles of the Code on Criminal Procedures (CPC) have been used, often extensively, in a way that might have the same effect as punitive measures, whereas alternatives to arrest or detention are under-used. A 2005 amendment to the CPC limiting the detention period entered into force at the end of 2010, resulting in the release of a number of prisoners.

Pre-trial detention is not limited to circumstances where it is strictly necessary in the public interest. In some terror-related cases, defendants and their lawyers have not been permitted access to incriminating evidence early in the proceedings[14]. Frequent use of arrest instead of judicial supervision, leaks of information, evidence or statements, limited access to files, failure to give detailed grounds for detention decisions and revision of such decisions raised concerns. Finally, no authoritative information has been made available from either the prosecution offices or the courts on all these issues of wide public interest. Despite preparatory work conducted by both the High Council and the Justice Academy, spokespersons at prosecution offices or at courts are not yet operational.

There is a need to improve the work of the police and the gendarmerie together with the working relationship between the police, gendarmerie and judiciary in order to address concerns raised during investigations in some high-profile cases. A Regulation on the judicial police, as provided for under Article 167 of the CPC, was adopted in 2005. It came into force on 1 June 2005 together with the CPC but has yet to be implemented. Hence, judicial police units attached to prosecution offices have yet to be established. As a result, prosecutors currently rely on judicial police units operating under the hierarchical control of the Ministry of the Interior.

Mediation is not effectively implemented and judges, prosecutors and lawyers are not trained for the task. The court experts' system does not provide for official lists of experts and fees. Nor does it set deadlines for submitting experts' opinions or make court experts subject to cross-examination. The process of transferring forensic medical examinations to State hospitals or health centres has been slow and has yet to be completed. The backlog of the Forensic Medicine Institute leads to delays in judicial proceedings. Cross-examination in criminal trials is not fully implemented.

A large number of measures in the judicial reform strategy adopted by the government in August 2009 have been implemented by the constitutional amendments and ensuing legislation. There is a need to review the existing strategy in a transparent and inclusive fashion, so that the revised strategy will be owned by the Turkish legal community and the wider public.

Overall, progress has been made in the area of the judiciary. The adoption of legislation on the High Council of Judges and Prosecutors and on the Constitutional Court marks progress in the independence and impartiality of the judiciary. Steps have also been taken to improve the efficiency of the judiciary and address the increasing backlog of the courts. However, further steps are needed on the independence, impartiality and efficiency of the judiciary, including the criminal justice system and the large backlog of pending serious criminal cases. The Minister can veto the launching of disciplinary investigations concerning judges and prosecutors by the High Council. Judicial proceedings need to be made transparent and courts and prosecution offices need to inform stakeholders and the public at large on issues of public interest. The upcoming review of the judicial reform strategy needs to be carried out with the participation of all stakeholders, the Turkish legal community and civil society.

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

In line with the 2010-2014 Strategy and Action Plan[15], an Executive Committee for Increasing Transparency and Fighting Corruption[16] has coordinated working groups preparing proposals on 28 corruption-related issues. The Committee of Ministers on anti-corruption policy approved all the proposals. However, there was no increase in the strength or independence of institutions involved in the fight against corruption, which are not sufficiently staffed. Participation by civil society, particularly in the Executive Committee and in implementing the strategy, needs to be strengthened.

Turkey has implemented 19 of the 21 recommendations made in the 2005 first and second evaluation reports by the Group of States against Corruption (GRECO). There has been no progress in limiting the immunities of Members of Parliament or of senior public officials in corruption-related cases and establishing objective criteria setting the conditions under which their immunity could be lifted. Two major sets of GRECO recommendations on "Incrimination" and "Transparency of Party Funding" remain to be implemented after the third evaluation round adopted in March 2010.

Legislation on political parties imposes some restrictions on the amount and nature of donations parties may receive. However, there has been no progress concerning the transparency of financing political parties. Auditing of political parties remains weak and there is no legal framework for auditing election campaigns or the financing of individual candidates. There is no limit on general party and campaign-related spending. In particular, the legislation contains no specific provisions on campaign financing. Parties declare their campaign-related income and expenditure in their general financial statements as part of their annual report to the Constitutional Court. The Constitutional Court itself focuses primarily on compliance with reporting requirements and with parties' internal regulations. It does not verify the data and source documents submitted or review them for undisclosed income and expenditure.

5928 civil servants working for central and local government received training on ethics between October 2010 and July 2011. However, no progress has been made on extending codes of ethics to academics, military personnel or the judiciary.

The Law on the Turkish Court of Accounts (TCA) adopted in December 2010 should significantly strengthen the transparency and accountability of public administration. However, the exclusion of the Foundation for Strengthening the Armed Forces from the audit mandate of the TCA is a major shortcoming of the revised Law on the TCA (See section on civilian oversight of security forces). There is no administrative act to freeze suspicious assets. No steps have been taken to build up a track record of investigations, indictments or convictions related to corruption cases.

As regards the investigation into the charity Deniz Feneri concerning a fraud case in Germany which started in 2009, the former head of the Radio and Television Supreme Council (RTÜK) and four senior executives of the television network Kanal 7 were detained. No indictment has been submitted to the courts yet. Changes to the prosecutorial team investigating the case raised concerns.

Overall, limited progress has been made on implementing the strategy and the action plan to combat corruption. Effective implementation of the strategy is necessary to reduce corruption which remains prevalent in many areas. The lack of transparency relating to political party financing and the scope of immunities remain major shortcomings. Greater political support for strengthening the legislative framework to fight corruption and the measures taken to implement it is needed. Turkey needs to build up a track record of investigations, indictments and convictions.

2.2. Human rights and the protection of minorities (see also chapter 23 - Judiciary & fundamental rights)

Observance of international human rights law

As for ratification of international human rights instruments, parliament passed legislation to ratify the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse in November 2010. Turkey ratified the Optional Protocol to the UN Convention against Torture (OPCAT) in September 2011. Ratification of three additional Protocols to the European Convention on Human Rights (ECHR)[17] is still pending.

During the reporting period, the European Court of Human Rights (ECtHR) delivered a total of 418 judgments finding that Turkey had violated rights guaranteed by the ECHR. The number of new applications to the ECtHR went up for the fifth consecutive year. Since October 2010, a total of 7,764 new applications have been made to the ECtHR. Most of them concern the right to a fair trial and protection of property rights. In September 2011, 18,432 applications regarding Turkey were pending before the ECtHR. Turkey has abided by the majority of ECtHR rulings, including payment of compensation totalling € 24.5 million in 2010. Some rulings have not been followed up by Turkey for several years[18]. The government's announcement that it would address these issues was not followed through.

In the Cyprus v. Turkey case, the issues of missing persons and restrictions on the property rights of Greek Cypriots displaced or living permanently in the northern part of Cyprus remain pending. In a number of other cases, including the Xenides-Arestis v. Turkey, the Demades v. Turkey, the Varnava and Others v. Turkey cases, Turkey has yet to fully execute the decision, including paying the just satisfaction awarded by the ECtHR to the applicants. Following the Grand Chamber Decision of 5 March 2010 on the Demopoulos v. Turkey case, around 1500 applications from Greek Cypriot owners have been lodged with the Immovable Property Commission (IPC). So far, overall around 200 cases have been concluded, mainly by friendly settlements.

Regarding promotion and enforcement of human rights, the government has submitted draft legislation on the Ombudsman to parliament (See section on public administration).

Public officials, judges, public prosecutors and police officers received training on human rights. A Department of Human Rights has been established within the Ministry of Justice to follow up ongoing cases before the ECtHR and the execution of judgements.

The Human Rights Investigation Committee of parliament received nearly 1500 petitions since October 2010, most of which concerned judicial review and problems related to prisons. It adopted 7 reports since October 2010 and established a sub-committee to probe into the fate of people allegedly disappeared under detention, mainly in the Southeast of the country and in the aftermath of the 1980 military coup.

However, human rights institutions in line with the UN Paris principles, in particular as regards their independence and functional autonomy, have yet to be established. The draft Law establishing the Turkish National Human Rights Institution (NHRI) submitted to parliament in February 2010 does not comply fully with these principles. It is important that the provisions on the mandate, core functions, membership, staffing and funding of the NHRI cannot be amended by implementing legislation, but are set out in law. The NHRI's accountability to the Prime Minister and appointment of its members by the Council of Ministers are not in line with the Paris principles. The funding provisions in the draft law do not ensure that the budget comes from an autonomous source. Requirements for pluralism and gender balance are not explicitly included in the rules on recruitment of staff. The draft law does not specify that there is no restriction on the powers of the NHRI to examine issues arising from any part of the State or the private sector. Greater cooperation with, and involvement of, civil society has yet to be reflected in the draft.

Criminal proceedings were launched against many human rights defenders, with much use made of terrorism-related articles of Turkish legislation. The wide definition of terrorism under the Anti-Terror Law (See the sections on the situation in the south-east and on freedom of expression) was not revised and remains a cause for serious concern.

Overall, some progress was made on observance of international human rights law, notably through the ratification of the OPCAT. However, a number of reforms have been outstanding for several years. Legislation on human rights institutions needs to be brought fully into line with UN principles.

Civil and political rights

The government pursued its efforts to ensure compliance with legal safeguards to prevent torture and ill-treatment and ratified the OPCAT in September 2011. The latter provides for establishment of a national mechanism to prevent torture within one year and regular reports on measures to implement the Protocol (See the section on observance of international human rights law).

The Council of Europe's Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) published the report on its fifth periodic visit to Turkey[19]. The CPT noted a downward trend in both the incidence and severity of ill-treatment by law enforcement officials.

Training courses were given to health personnel, judges and prosecutors on effective investigation and documentation of torture and ill-treatment cases with a view to effective implementation of the Istanbul Protocol on the investigation of torture and ill-treatment in Turkey.

However, law enforcement bodies continued in some cases to apply disproportionate force. Civil society organisations reported disproportionate use of firearms by security forces, resulting in deaths. The CPT's report on its fifth periodic visit to Turkey states that a number of credible allegations of physical ill-treatment were received, which concerned mainly excessive use of force during arrest. With regard to the conditions of immigration detainees, major shortcomings were found in several of the detention centres visited, including severe overcrowding, dilapidated conditions, limited access to natural light, poor hygiene and lack of outdoor exercise.

Law enforcement bodies frequently launched counter-cases against persons who alleged torture or ill-treatment. Such proceedings may deter complaints. In many instances such cases launched by security forces are given priority by the courts.

Under a tripartite protocol which is still in force between the Ministries of Health, Justice and the Interior, law enforcement officers are sometimes present during medical examinations on prisoners.

Efforts to fight impunity for human rights violations have not been sufficient. As noted by the ECtHR, criminal proceedings have still not been finalised against members of the security forces who took part in an operation at Diyarbakir prison on 24 September 1996, which led to the death of ten prisoners and injury of six. Consistent lack of thorough independent investigations into alleged extrajudicial killings by security and law enforcement officers persists. The case against an Istanbul police officer regarding the killing of a Nigerian asylum seeker has not advanced. There is still no independent police complaints mechanism. Administrative investigations into allegations of torture or ill-treatment continue to be carried out by fellow police officers, putting at risk the impartiality of the investigation.

Law enforcement officers found guilty of torture, ill-treatment or fatal shootings received short or suspended sentences. Prosecutions of allegations of torture are often conducted under penal code provisions[20] allowing lighter sentences or the possibility of imposing a suspended sentence.

Cases of ill-treatment, unexplained deaths, torture and the lack of fair trials within the military during military service have been reported. In April, the ECtHR found Turkey in violation of the ECHR with regard to the right to a fair trial in one case before the supreme military administrative court.[21] Several trials are in progress concerning allegations of ill-treatment of conscientious objectors in military prisons.

Overall, there has been little progress in practice, although ratification of the OPCAT is a significant step. The positive trend on prevention of torture and ill-treatment continued. However, disproportionate use of force by law enforcement officials continued to be a concern, particularly outside official places of detention. Reports of torture or ill-treatment in prisons increased, especially in south-eastern provinces. There has been no progress on tackling impunity. There is a significant backlog of judicial proceedings.

Implementation of the prison reform programme continued.

The case management model developed by the Ministry of Justice to improve rehabilitation services is in operation in 4 juvenile prisons.

An amendment to the Code on Criminal Procedures (CPC) entered into force at the end of 2010, limiting the period which can be spent in custody before the final sentencing. This could reduce the prison population.

Architectural changes to some high-security prisons enabled more communal activities.

In terms of access to healthcare, a commission has been established by the Ministry of Justice to improve conditions in prison wards at certain hospitals in line with human and patient rights. By February 2011 the number of rehabilitation centres for convicts and detainees had increased to five.

The number of judgments including probation sentences increased[22].

However, the prison population continued to increase[23]. This leads to overcrowding, puts pressure on staff and other resources and limits the possibility of using newly built prisons to improve conditions for the inmates. One major factor continuing to contribute to over-population in prisons is the length of time it can take to complete a trial and impose a sentence in criminal cases. Some 47% of the prison population has not received a final sentence (See section on the judiciary).

The prison system does not have adequate resources, notably with regard to the number of prison staff and their qualifications, despite the appointment of an additional 4,929 staff in 2010 and the existence of four training centres.

The number of juvenile correctional facilities is insufficient, notwithstanding the launch of juvenile prison-building work by the Ministry of Justice. Children are not fully separated from adults in all prisons. This is especially the case with girls[24] (See section on children's rights).

The standards for monitoring national prisons are still not in line with those of the UN. Prison monitoring boards are not effective and there is not a board for each individual prison. They have neither the right nor the resources to carry out unannounced visits. In some provinces provincial human rights boards carry out random visits, but their reports have not led to changes in practice.

Delays in the work of the Forensic Medicine Institute can lead to damaging delays in trials of sick prisoners. There are serious problems with transferring prisoners to hospitals for treatment. Hospitals regularly used by prisons often have no secure rooms. Complaints were received about medical examinations conducted in the presence of security staff and of prisoners being handcuffed during medical consultations in civilian hospitals.

The authorities have yet to adopt a general statement of principles on restrictions that can be imposed on prisoners' rights, incorporating the principles of the ECHR. Newspapers, magazines and books continue to be forbidden in prisons. The practice adopted in prisons in relation to open and closed visits is a concern. There are still reports of restrictions on use of the Kurdish language in prisons, during visits and exchanges of letters. Practice varies between prison administrations. A complete overhaul of the complaints system in prisons to make it genuinely available to all prisoners should be carried out, in accordance with the OPCAT.

The judicial case focusing on the incidents at Bayrampaşa prison during the "Return to Life" Operation in 2000, when the police violently ended the hunger strike of prisoners who had protested against their transfer to F-type prisons and during which twelve prisoners died, is still pending. In the meantime the ECtHR admitted a case about this operation.

Overall, the increasing prison population is leading to serious overcrowding, which is hampering attempts to improve detention conditions. A complete overhaul of the complaints system in prisons is needed. Implementation of the OPCAT should help tackle some problems. Close attention should be paid to making sure that new arrangements for medical services meet the requirements of the prison environment. An urgent review of the system for dealing with juveniles is needed to minimise the number in prison and the time they spend there and make sure that detention conditions meet the needs of children.

There have been limited improvements in access to justice. The efforts of Bar associations improved citizens' awareness of their rights in terms of access to justice.

However, problems remained in rural areas and for disadvantaged groups. A large proportion of prison inmates, including women and juveniles, have had only limited access to legal aid. Prison inmates are not always aware that legal aid is available. In domestic violence cases, the documentation requested in order to benefit from legal aid has, in practice, delayed protection of victims.

Financial resources allocated for legal aid are not adequate. Lawyer's fees are very low and, in any case, not comparable with the fees paid by defendants in ordinary cases.

Public awareness of legal aid is limited. The Ministry of Justice, the High Council of Judges and Prosecutors and the courts do not publish information relating to judicial proceedings. The courts do not provide parties with forms or models to file petitions and have no information desks. Defendants continue misguidedly to believe that requesting a lawyer implies guilt.

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

As regards freedom of expression, the media and public continued debating openly and freely a wide range of topics perceived as sensitive, such as the Kurdish issue, minority rights, the Armenian issue and the role of the military. Opposition views are regularly expressed.

Following the review of the legal framework on freedom of expression by the Ministry of Justice, a draft law has been submitted to parliament with the aim of changing a limited number of articles of the Turkish Criminal Code, including Articles 285 and 288, which are often used to start procedures against journalists. Few cases have been initiated on the basis of Article 301 of the Turkish Criminal Code (TCC), after it was amended in May 2008.

However, the high number of violations of freedom of expression raises serious concerns. Freedom of the media was restricted in practice. The imprisonment of journalists, and the confiscation of an unpublished manuscript in connection with the Ergenekon investigation, fuelled these concerns. A large number of journalists remain in detention.

A large number of cases were launched against writers and journalists writing on the Kurdish issue. Pressure on newspapers which report on the Kurdish question or publish in Kurdish has continued. Several left-wing and Kurdish journalists were convicted of terrorism propaganda (See section on the situation in the south-east).

A large number of violations of freedom of expression by Turkey were submitted to the ECtHR. In order to comply with the rulings of the ECtHR, legal amendments need to be introduced.[25]

Turkey's criminal legislation remains highly problematic; it is open to disproportionate use to limit freedom of expression. The Press Law and the Law on the protection of Atatürk are also used to restrict freedom of expression. A number of articles of the TCC require revision, such as Article 125 which criminalises defamation, Articles 214, 215, 216 and 220 on protection of public order, Article 226 which outlaws publication or broadcasting of obscene material, Article 285 which protects the confidentiality of investigations, Article 288 which outlaws attempts to influence the judiciary, Article 314 on membership of an armed organisation and Article 318 which makes it an offence to discourage people from performing military service. Restrictions on freedom of expression stemming from a wide definition of terrorism under the Anti-Terror Law continue to be a cause for concern. In particular, Articles 6 and 7 of this law need to be revised.

Another important problem is the lack of proportionality in the interpretation and application of the existing legal provisions by courts and prosecutors, which leads to violations of freedom of expression. The role of prosecutors, including special "press prosecutors", in initiating criminal proceedings affecting freedom of expression without due restraint is particularly important and raises concerns. A large number of draft indictments on grounds of article 301 of the TCC are still submitted by prosecutors to the Minister of Justice for examination, for most of which permission to prosecute is denied.

As highlighted in a report of the Council of Europe published in July 2011, the interpretation of the concept of "incitement to violence" is not compliant with the case-law of the European Court of Human Rights. No defences of truth and public interest exist in the Turkish legal system. Other issues hampering the right to freedom of expression are the excessive length of criminal proceedings and remands in custody and problems concerning defendants' access to evidence against them pending trial. All of this has a chilling effect on freedom of expression in Turkey and has led to wide self-censorship in Turkish media, as do the recurring court cases launched against the press by high-level government and State officials and by the military.

A decision by the Turkish Constitutional Court of 2 May 2011 invalidated Article 26 of the Press Act. Once this decision will have entered into force in July 2012, prosecutors will no longer be bound to certain time restraints if they want to file a case following a publication in a periodical. Currently, the maximum period for filing a case is two months after publication for dailies and four months for weeklies.

The court case on the tax fine imposed in 2009 against the Dogan Media Group, a well-known critic the government, continued. In general, numerous and high fines were imposed on the media. The satiric Harakiri magazine was forced to cease publication after its second issue, following a fine of TL 150,000 imposed by the Prime Ministerial Board for the Protection of Children from Harmful Publications. The Board, which reads books at the request of prosecutors and follows periodicals in Turkey to evaluate them for possible obscenity, has been heavily criticised as regards its composition and the scope of its mandate.

In March 2011, a first-instance court agreed with the Court of Cassation and fined writer Orhan Pamuk in a civil procedure on the grounds that his 2005 remarks on the killing of Armenians and Kurds had insulted the plaintiffs as Turkish citizens.

Regarding hate speech, the Council of Europe recommendation encouraging Turkey and the media to adopt a code of ethics on respect for religious minorities has not been implemented. There is a need for new legislation which would allow effective prosecution of incitement to hatred, including by the media.

The new Law on the establishment and broadcasting principles of radio and TV stations brings only partial improvement as regards the interpretation of certain rules on broadcasting bans and sanctions imposed on broadcasters. The potential fines have been substantially increased. At the beginning of 2011, based on the previous law, the Supreme Board of Radio and Television (RTÜK) issued warnings to television stations and imposed fines on them for failing to respect the privacy of historical characters[26], discussions on homosexuality[27] or homosexual scenes in films or series[28] (See Chapter 10 – Information society and media).

There are still frequent website bans of disproportionate scope and duration. Since May 2009 the Telecommunications Communication Presidency (TİB) has published no statistics on banned sites. A case has been brought against the TİB for not supplying statistics on the banned sites, as this is not in line with the Law on the right to information. Court cases are also ongoing against the You Tube video-sharing website and other web portals. The Law on the Internet, which limits freedom of expression and restricts citizens' right to access to information, needs to be revised. In April 2011 TİB, basing itself on the Internet Law, sent a letter to hosting companies asking them to cancel websites which included certain potentially provocative words. This raised heavy criticism, to which TIB responded that the list of words was intended to assist hosting companies identify allegedly illicit web content.

Reacting to strong criticism, the Information and Communication Technologies Authority (ICTA) amended its February 2011 regulation on the principles and procedures for safe usage of the Internet. The revised version, which was adopted in August 2011, responds to a number of concerns, in particular by making the Internet filters explicitly optional. After a testing phase ending in November 2011 the system will be available to all users. Implementation in line with European standards will be essential.

Overall, open debate, including on issues perceived as sensitive, continued. However, in practice, freedom of expression is undermined by the high number of legal cases and investigations against journalists, writers, academics and human rights defenders and undue pressure on the media, which raises serious concerns. The present legislation does not sufficiently guarantee freedom of expression in line with the ECHR and ECtHR case law and permits restrictive interpretation by the judiciary. Frequent website bans are another cause for serious concern. Turkey's legal and judicial practices, legislation, criminal procedures and political responses are obstacles to the free exchange of information and ideas.

As regards freedom of assembly, there were positive developments. Newroz (New Year) ceremonies in the South East and 1 May demonstrations took place in a generally peaceful atmosphere. This was also the case for demonstrations, inter alia against restrictions on alcohol advertising and consumption, on judicial reform and on the detention of suspects in the alleged coup trials. Several activities, including Armenian Genocide Commemoration Day, organised by intellectuals and civil society representatives to commemorate the 1915 events also proceeded peacefully.

However, demonstrations in the south-east of the country and in other provinces related to the Kurdish issue, students' rights, the activities of the Higher Education Board (YÖK) and trade union rights were marred by violence, including incidents of excessive force used by the security forces. Allegations against members of the security forces for use of excessive force were rarely prosecuted or investigated properly (See section on impunity).

Turkey still needs to apply constitutional provisions guaranteeing the right to hold demonstrations. Many court cases are in progress on charges of opposing the Law on meetings and demonstrations. This law is currently being revised by the Ministry of the Interior. Problems persist with implementation of the Law on the duties and legal powers of the police, especially in the south-east. Civil society organisations and human rights defenders often face prosecution and legal proceedings on charges of terrorist propaganda during demonstrations and protest meetings.

Turkey's legislation on freedom of association is broadly in line with EU standards. However, no moves have been launched to meet the need for changes to the legal framework, including the Constitution, with regard to the closure of political parties. There are many instances of restrictive interpretation of the existing legislation.

The inclusion of civil society organisations (CSOs) in policy processes, while still in a nascent stage, has advanced. CSOs continued to face closure cases plus disproportionate administrative checks and fines. Membership in associations continues to require a Turkish residency permit and foreign CSOs are subject to specific regulations.

Legislative and bureaucratic obstacles impeding the financial sustainability of CSOs persist, e.g. with respect to the collection of domestic and international aid, to obtaining public benefit status for associations and tax exemptions for foundations, etc. The lack of simplified rules creates difficulties for small or medium-sized associations.

The judicial investigation into the Istanbul branch of the Human Rights Association has been pending for two years. The Labour Court ordered the closure of Yargı Sen (the trade union of judges and public prosecutors), established in early 2011, based on the argument that its establishment is contrary to domestic legislation. However, this legal basis needs to be updated in line with the 2010 constitutional amendments and the international obligations of Turkey. The trade union appealed to the Court of Cassation.

More restrictive legislation applied to foreign associations, with the Ministry of the Interior (MoI) having to consult the Ministry of Foreign Affairs (MFA) to allow the opening of a representation. Some foreign civil society organisations were rejected by or received no reply from the MoI without being given specific reasons.

The case against the party leaders and executive members of the Socialist Democracy Party and the Social Freedom Platform is pending. Some of them are still detained for alleged links to the Revolutionary HQ, an illegal organisation.

In December 2010, the ECtHR found Turkey in violation of the rights to freedom of assembly and association in connection with the closure of the HADEP party by the Constitutional Court in March 2003[29].

Overall, as regards freedom of assembly, there has been progress on the ground. However, demonstrations in the south-east of the country and in other provinces related to the Kurdish issue, students' rights, the activities of the higher education supervisory board (YÖK) and trade union rights were marred by disproportionate use of force. Legislation on freedom of association is broadly in line with EU standards. However, disproportionate controls and restrictive interpretation of the law remain; funding rules for CSOs remain restrictive. There were no developments as regards amendment of the legislation on the closure of political parties.

Concerning freedom of thought, conscience and religion, freedom of worship continues to be generally respected. Ecumenical Patriarch Bartholomew celebrated in August, for the second time after almost nine decades, the Divine Liturgy of the Dormition of Theotokos at the Soumela monastery in the Black Sea province of Trabzon. In September the second religious service since 1915 was held at the Armenian Holy Cross church on the Akhdamar island in lake Van. A Protestant church was officially opened in June in the city of Van in Eastern Turkey. The Turkish authorities, including a Deputy Prime Minister, held a number of meetings with the religious leaders of non-Muslim communities, including a visit to the Ecumenical Patriarchate, the first visit by a high-ranking official of the Patriarchate since the 1950s.

Following seven workshops held in the context of the 2009 Alevi opening, a final report was issued in March 2011. The Ministry of National Education has prepared new religious education textbooks containing information on the Alevi faith, too. These are to be used as of the 2011-2012 school year. A small number of municipal councils have recognised de facto Cem houses as places of worship. The government expropriated Madimak Hotel[30] in Sivas. Alevis have demanded that the hotel be turned into a museum.

The 2010 ECtHR judgment in the Özbek and others v. Turkey case about the establishment of the Kurtuluş Protestant Church Foundation in Ankara (violation of Article 11) was implemented.

Legislation amending the February 2008 Law on foundations was adopted in August 2011. The current legal framework broadly provides for the return of properties entered in the 1936 declarations of the non-Muslim community foundations widening, thus, the scope of the 2008 Law. (See section on property rights).

However, under Article 24 of the Turkish Constitution and Article 12 of the Basic Law on national education, religious culture and ethics classes remain compulsory in primary and secondary schools. A 2007 ECtHR judgment[31] regarding compulsory religious education has yet to be implemented. Exemptions from attending such classes are rare and difficult to obtain, particularly if the identity card of the applicant does not list a religion other than Islam or if the religion entry on the card is blank. No alternative classes are provided for students exempted from these classes, and there are reports that students not attending these classes have been given lower marks.

Non-Muslim communities – as organised structures of religious groups – still face problems due to their lack of legal personality. This has implications at least for their property rights, their access to justice and their ability to raise funds. The 2010 Council of Europe Venice Commission recommendations[32] in this regard have yet to be implemented.

Restrictions on the training of clergy remain. Turkish legislation does not provide for private higher religious education for individual communities and there are no such opportunities in the public education system. The Halki (Heybeliada) Greek Orthodox seminary is still closed. The Armenian Patriarchate's proposal to open a university department for the Armenian language and clergy has been pending for four years now. Syriacs can provide only informal training, outside any officially established schools.

The Ecumenical Patriarch is not free to use the ecclesiastical title 'Ecumenical' on all occasions. The Venice Commission's 2010 conclusion that any interference with this right would constitute a violation of the autonomy of the Orthodox Church under Article 9 of the ECHR has yet to be implemented. As regards participation in religious elections held in the patriarchate, Turkish and foreign nationals should be treated equally in terms of their ability to exercise their right to freedom of religion by participating in the life of organised religious communities in accordance with the ECHR and the case law of the ECtHR.

Personal documents, such as identity cards, include information on religion, leaving potential for discriminatory practices. There have been reports of harassment by local officials of persons who converted from Islam to another religion and sought to amend their ID cards. Some non-Muslims maintained that listing religious affiliation on their identity cards exposed them to discrimination. The 2010 Sinan Isik v. Turkey ECtHR judgment, which ruled that indication of religious affiliation on identity cards is in breach of the Convention, has yet to be implemented.

Alevi places of worship are not recognised and Alevis often experience difficulties in opening them. Two refusals by the administration to approve places of worship were taken to courts, which upheld the decisions. One case is now pending before the ECtHR, after exhausting all domestic remedies.

Non-Muslim religious communities report frequent discrimination, administrative uncertainty and numerous obstacles to establishing or continuing to use places of worship. Implementation of zoning legislation by local authorities differs from province to province. This results in often arbitrary refusals to issue construction permits for places of worship. Since the relevant legislation was amended in 2003[33], there has been no construction or designation of a plot for a new Protestant church or a Jehovah's Witness Kingdom Hall. In Mersin a court ordered the closure of a Kingdom Hall that was considered to have violated the zoning law. The case has been taken to the ECtHR.

Jehovah's witnesses have been refused exemption from property taxes in Istanbul and Ankara. A number of court cases are pending on taxation issues. Alevis and non-Muslim religious communities have to pay electricity and water bills, whereas the State budget covers such expenses for mosques.

Missionaries are widely perceived as a threat to the integrity of the country and to the Muslim religion. A court in Silivri found two missionaries not guilty of inciting hatred or insulting Turkishness but guilty of registering personal data[34]. The court case concerning the killing of three Protestants in Malatya in April 2007 continued. No clear conclusion has been reached regarding the killing of Father Santoro, a Catholic priest, in Trabzon in 2006. As regards the killing of Bishop Padovese in Iskenderun in 2010, the indictment was finalised in June 2011. The case is continuing.

The May 2010 Prime Ministerial circular instructing all relevant authorities to pay due attention to the problems of non-Muslim Turkish citizens has yet to produce tangible results. Non-Muslim religious communities reported that hate crimes continued. There have been reports of attacks against churches, synagogues and cemeteries. Anti-Semitism and hate speech in the media, including in TV series and films, have not been sanctioned.

ECtHR judgments regarding conscientious objectors refusing to serve in the military on religious or other grounds have yet to be implemented. No progress has been made on tackling the issue of repeated prosecution and conviction or towards introducing a civilian alternative to military service. Members of the Jehovah's Witness community in particular faced court cases for conscientious objection. On several occasions public statements on the right to object led to judicial investigations and proceedings on the grounds of discouraging the public from fulfilling military service.

Overall, there has been limited progress on freedom of thought, conscience and religion. The dialogue with the Alevis and with the non-Muslim religious communities continued. Members of minority religions continued to be subject to threats from extremists. A legal framework in line with the ECHR has yet to be established, so that all non-Muslim religious communities and the Alevi community can function without undue constraints.

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

Limited progress can be noted on women's rights and gender equality. Efforts have been made to strike a better balance between professional and private life for civil servants, notably in the form of introducing parental benefits. The Parliamentary Committee on Equal Opportunities for Women and Men has issued a number of reports[35] on women's issues and improved its institutional capacity, including with the aid of training. Legislation was adopted in January 2011 (Law on obligations) to address the problem of bullying at work, followed by a Prime Ministerial circular in March 2011. The female participation rate in the labour market increased from 26% in 2009 to 27.6% in 2010. The gender gap in primary education at national level continued to narrow and was virtually closed. The 2011 elections increased women's participation in parliament approximately from 9% to 14% of its membership.

The dialogue with women's NGOs developed since the appointment of the new minister of family and social policies.

However, gender equality, combating violence against women, including honour killings, and early and forced marriages remain major challenges for Turkey. The constitutional amendment providing for positive discrimination in favour of women has yet to produce results.

Women's representation in politics, managerial positions in the public administration, including education[36], at governor level, in political parties or in trade unions remains generally limited, even though polls indicate wide public support for greater participation by women in politics. Research has concluded that women's low political participation cannot be attributed to voter choice or women's traditional family roles alone, but also to the insufficient support given to