In the procedure of getting ready for the accession of Turkey to the European Union (EU) the European Commission suggested Accession Partnership priorities for Turkey to the European Council in Nice in December 2001.
The Accession Partnership can play a crucial guiding role for the improvement of human rights because it breaks down, the Copenhagen political criteria - the precondition for accession negotiations to start - into a set of short and medium term priorities.. So therefore Turkey is expected to complete the short term priorities or take them forward, within one year.
The Turkish Parliament amended 34 articles of the constitution on the 3rd of October 2001 (Law No. 4709). The law entered into force on 17 October 2001. Some of the amendments included are, equality for men and women, some steps to improve human rights in Turkey. Some of the improvements for human rights include the shortening of detention periods before being brought before a judge; obligation of the death penalty for criminal offences; before being brought before a judge; the obligation of the death penalty for criminal offences; right to a fair trial and the lifting of the ban on statements and publications made in Kurdish and of the ban on amnesties and pardons for politically motivated offences committed after the amendments came into force. As some restrictions were lifted, nevertheless, new restrictions were introduced that fall short of Turkey’s international human rights requirements.. What’s more the death penalty was not abolished for war times and “terrorist” crimes.
In the report written by Amnesty international, they specifically empathized their concern on the amendments, stating that these amendments did not include significant guarantees for freedom of expression and safeguard against torture.
Restrictions permitted under the Constitution should not go beyond the margins allowed by the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) to which Turkey is a state party, they must be prescribed by law and necessary in a democratic society. But still numerous articles of the Turkish constitution retain rights restrictions not compatible with these provisions and fall short of the requirement that any restrictions on fundamental rights “must be necessary in a democratic society”.
Freedom of expression has had several amended articles. The amendments of Article 14 on the prohibition of rights abuse introduced a reference to “acts”. The word “act” still seems to be to broad to inhibit restrictions on the right to freedom of expression, because it could be interpreted as including delivering a speech, writing or publishing an article or a book.
But there is a positive step which is the abolishing of Article 26 (3) on freedom of expression and article 28 (2) on freedom of the press which had banned statements and publications “in a language prohibited by law”. These provisions had been targeted at the Kurdish language without mentioning it. The ban on Kurdish had already been lifted in 1991.
Several provisions in Turkish law have been applied to suppress the right to freedom of expression.. For example, article 8 of the Anti-Terror law carries prison terms of between one and three years for so-called “separatist” propaganda without advocating violence. Under this article, for example, the assistant professor of economics Dr Fikret Baskaya was imprisoned in June 2001, also he had been imprisoned before in June 2000 to 16 months for an article he published in the pro-Kurdish newspaper (ozgur politica) on the trial of PKK leader Apdullah Ocalan.
Human Rights defenders, politicians, writers, journalists and many others who refer to Kurd or Islam have increasingly faced trials and convictions under Article 312/2 of the Turkish Penal Code, which contains prison sentences between one and three years for incitement to hatred based on religious or ethnic differences.
So therefore this shows that in Turkey people still get convicted and sentenced solely because of expressing their views.
Akin Birdal a well known human rights activist; President of the Human Rights Association (IHD), until he was forced to resign due to his convictions. He had to serve two one-year sentences in the years 1999-2000. His only crime was to call for a peaceful solution to the armed conflict which had continued between the Turkish security forces and the PKK since 1984, in his speeches.
Another article that has frequently been used to prosecute human rights defenders is article 159 of the Turkish penal code. On 21 March a trial was opened in which women and men who had denounced rape in custody at a conference held in June 2000 were charged with having insulted the security forces. Some of them were also charged with separatist propaganda under article 8 Anti-terror law in a second trial.
I feel that legal and constitutional guarantees for the right to freedom of expression should be strengthened so that they are compatible with the provisions of article 10 of the European Convention of Human Rights. They should ensured that the law can no longer be interpreted in such a way as to restrict this right. I feel this requires a basic change of attitude on the part of the government and the judiciary which would lead to a revision of both law and practice.
I believes that any peaceful expression of views, or regarding the political structure of the state and possible secession should be permitted, and in this regard I feel that the constitutional amendments seem insufficient. The European Court has interpreted restrictions to article 10 very narrowly. Peaceful advocacy of reform, including in relation to matters affecting territorial integrity, may not be restricted even if there is domestic concern about violent separatism.
So we can conclude by saying that, recent constitutional amendments leaves, police, prosecutors and courts with more than enough tools to continue imprisoning writers for expressing their non-violent opinions.
48 hours after the events of constitutional changes, we saw that the term “activities” will be given the widest possible interpretation: a journalist was sentenced to twenty months imprisonment and a magazine was shut down; a book by a Kurdish writer was banned; a local Kurdish politician was detained; trade unionists were indicted for preparing invitations to a meeting in the Turkish and Kurdish languages; and also Turkish Human Rights Association members were detained while making a public call for the release of Yvonne Ridley, the British journalist, from Afghanistan.
Protecting freedom of expression; R v Secretary of State for the Home Department, ex parte Simms [2000] AC 115, in this case Lord Steyn stated:
“ Freedom of expression is, of course, intrinsically important: it is valued for its own sake. But it is well recognised that it is also instrumentally important. It serves a number of broad objectives. First, it promotes the self-fulfillment of individuals in society. Secondly, in the famous words of Holmes J (echoing John Stuart Mill) ‘the best test of truth is the power of the thought to get itself excepted in the competition of the market’: Abrams v US. Thirdly, freedom of speech is the life blood of democracy.”
“Even with the recent constitutional changes, including abolition of the death penalty, and last year’s satisfactorily democratic election, it seems that Turkey was not EU material”
The House of Lords declared on several occasions that it could see no difference between Article 10 and the common law’s approach to the right of freedom of speech; Derbyshire County Council v Times Newspapers Ltd. [1993]; Attorney-General v Guardian Newspapers Ltd. [1990]; Reynolds v Times Newspapers Ltd. [1999].
The right to freedom of expression in Article 10(1) is not limited on the basis of the content of the particular expression at issue. The Court has confirmed that it extends to opinions and ideas that are viewed as offensive by the state, or by a proportion of the state’s population; Handyside v United Kingdom. We can see from previous cases that Turkish State’s opinions and ideas as to what is offensive is higher that of the UK state.
Interference with the right to freedom of expression include, in civil proceedings, a damages award; Tolstoy Miloslavsky v United Kingdom and Bladet Tromso and Stensaas v Norway, the imposition of an injunction; Open Door Counseling and Dublin Well Women v Ireland.
An interference by a public authority includes restrictions upon freedom of expression which are imposed by a private body which is exercising public law functions. In Turkey interference by public authority is seen very often.
Article 15 permits the suspension of various Convention rights in times of war and other public emergencies threatening the life of the nation. Article 15 may be relevant to reporting on wars and, arguably, the Northern Ireland conflict. Even though the language in Art 15 (1) is restricting it to measures that are ‘strictly required’, the Court has recognised a margin of appreciation for the contracting state in assessing whether such an emergency exists and, if so, what steps are necessary to overcome it; Ireland v United Kingdom [1978].
It is unlawful for a public authority to act in a way which is incompatible with a Convention right; Human Rights Act 1998 (HRA), s 6(1).
Abuse on grounds of race has long been recognised as a form of discrimination, (racial discrimination), Race Relations Act 1976. I feel that implementation of the HRA 1998 has had any significant effect on the provisions of UK law, the above act. UK courts, like the Strasbourg Court, will remain ‘particularly conscious of the vital importance of combating racism in all its forms’; Jersild v Denmark.
Unlike Turkey, who has less tolerance against other races, especially against Kurds. For instance now TV Broadcasting in Kurdish is allowed in some parts of Turkey(after the October 2001 amendments), but when we looked at reports by Amnesty International and Human Rights watch, this doesn’t seem to be the case as Turkey still bans programs in Kurdish which are non political in nature, but Turkey sees it as separatism and terrorism.
Where UK follows EC law and its Human Rights Laws (HRA 1998), Turkey should be urged to do the same and make further constitutional amendments and the necessary legal reforms in order to fully comply with international Human Rights standards. Furthermore, these reforms should be applied in practice.
Turkey is a state party to the European Convention on Human Rights and other important human rights standards. However, bodies created under these human rights treaties, including the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) and the UN Committee against Torture, as well as the UN Special Rapporteur on torture, a thematic expert appointed by the UN Commission on Human Rights, have repeatedly called upon Turkey to bring both domestic law and its implementation in line with international standards.
http://www.angelfire.com/mt/savas1/insanhak
Despite recent gestures made by the authorities, the situation regarding freedom of expression remains worrying.
In its July 1999 judgement, the European Court of Human Rights concluded in eleven cases that there had been a violation of the freedom of expression as guranteed by the European Convention of Human Rights. In some of these cases courts referred to the essential role of the press in ensuring the proper functioning of political democracy, as well as to the freedom of artistic expression.
Regarding the freedom of the press, the situation has not substantially changed. Cases of Harassment and police violence against individual journalists have still been reported by domestic and international human rights orginisations.
As far as freedom of religion is concerned, there still exists a difference of treatment between those religious minorities recognized by the Lausanne Treaty and other religious minorities.
Turkey’s constitution, like those of other European Countries, guarantees a long list of human rights and fundamental freedoms. The major codes and enforcement mechanisms of Turkey’s legal system were taken verbatim from various European States in the early 1920’s and almost all actions of the state are subject to judicial review.
There seems to be so many laws within Turkey to protect human rights that it is almost impossible to believe that Erdinc Aslan, a radical leftist, was shot on 5th October 2000 in his home in Adana. Police had previously broken into the flat of his neighbor, Murat Bektas, and shot him in front of his wife and young son. A trial was opened against six police officers, one of whom was held in custody, on 1st December that year.
There are just few examples mentioned in the Amnesty International’s report, there are many reported and even more unreported violations of human rights within Turkey. A democratic country who believes that they have the right to be a member of EU, who gives so many rights to individuals within their constitution and yet torture, death is front row, only implemented because individuals are asking for their basic human rights.
Aslan Gunduz, professor of International Law at Marmara University states that the spotlight is on human rights in Turkey precisely because its government and people aspire to the highest standards of humanity and for full membership in the Western club of nations.
Turkey has always praised itself of being a democratic country. Abraham Lincoln defines democracy as;
“…..that government of the people, by the people, and for the people, shall not perish from the earth”
However, Turkey’s interpretation of democracy is somewhat different to any other definition.
Freedom of Expression, clearly given as a right to every individual in the Turkish Constitution. However, writers, publishers, trade unionists, teachers, local and national politicians, human rights defenders and many others continued to be imprisoned or tried after they exercised their right to freedom of expression. Those particularly targeted had expressed opinions on issues related to the Kurdish question or the role of Islam in politics.
Amnesty International has documented numerous cases of torture in Turkey, but prosecutions for these offences are rare and when convictions are secured they are usually for crimes classified as “ill-treatment”.
Is a law that benefits people convicted of ill treating detainees but does nothing for many prisoners of conscience adequate enough to say that this is a democratic country?
Amnesty International believes that human rights campaigners in turkey are “subject to pressure and harassment which inhibits their work”.
Article 38, of the Vienna declaration and Articles 42 and 43 of the Moscow Document foresee that, non-governmental orginisation and their members shall enjoy the protection under the domestic law and the rights and freedoms, which are provided in the Universal Declaration of Human Rights.
In 2002, a very important legislative activity was made. Laws amending existing various laws were approved under three main harmonisation packages on 6 February (first package), on 26 March (second package) and on 3 August 2002 (third package).
Among amendments, abolition of the death penalty in peace times, teaching in private courses and broadcasting on languages spoken in Turkey other than Turkish, abolition of the phrases "legally banned languages" existed in some laws, restriction of custody periods to four days and enabling foundations to own property and providing the opportunity for renewal of the trial after the decision of the European Court of Human Rights are significant amendments.
The rights of those facing criminal or civil proceedings, arrest, or other penalty are affected by the operation of Articles 5, 6 and 7 and related Protocols.
Article 5(2) makes sure the right of the arrested person to be informed promptley of the reasons for the arrest and charged in a language he/she understands. X v UK [1982].
Anyone arrested should be brought promptly before a judge or other judicial officer and should be tried within reasonbale time or released pending trial. In Brogan and Others v UK [1989], the court held that detention for periods over four days without charge and without being brought before a judge was a breach of Article 5(3). After this case the UK issued a notice of derogation.
Some of laws amended in 2002 were amended again by the fourth harmonisation package which was published in the Official Gazette on 2 January 2003. Majority of the legislative amendments except the death penalty have a significant importance as to the practices of the law enforcement organs (administrative and judicial organs). However, the first thing to be pointed out is the direction of the amendment process.
Some laws in the Turkish Constitution have been subject to amendment more than once. For example, Article 159 of the Turkish Penal Code was included in first and second harmonisation packages, Article 327 of the Criminal Procedures Law and the Article 445 of the Administrative Trial Procedures Law in third and fourth packages, Article 16 of the Law on State Security Courts in first and fourth package, Article 1 of the Foundations Law in third and fourth packages, Articles 5 and 6 of the Associations Law in third and fourth packages. The most striking example is that Articles 11 and 12 of the Associations Law. These two articles were abolished by the second harmonisation package on 26 March 2002, then they were reintroduced with third harmonisation package and finally these two articles were abolished again by the fourth harmonisation package entered into force on 2 January 2003.
This direction clearly reveals that there is an avoidance in taking a clear and determinant position on human rights and democracy. It is clearly seen that some of the amendments are only cosmetic amendments. There is no other meaning of those re-amendments in a very short intervals. Another method followed during this process is the limitation of rights recognised by laws through lower legal arrangements. Two examples can be shown to that. One of them is related to the teaching of languages spoken in Turkey other than Turkish in private courses. The regulation prepared by the Ministry of National Education concerning private courses is an example of how a right recognised by the law can be made unusable in practice. Provisions requiring a separate building, a separate application procedure and qualifications required for personnel gave rise to a conclusion that a single application has not been made to open up a course in the last six months since the introduction of the amendment. The second example is that the regulation concerning the broadcasting in spoken languages other than Turkish on television and radios prepared by the High Council (RTÜK). The RTÜK, by giving the broadcasting authority on spoken languages in Turkey solely to the State-owned Turkish Radio and Television (TRT) has created a monopoly on the spoken languages and prohibited the private radio and televisions. The RTÜK has delegated an authority, which was not foreseen in the law, to an institution which is not under the supervision of the RTÜK. In addition, a time restriction was also made in broadcasting. There are 26 local languages spoken in Turkey. Broadcasting only two hours in a week in televisions and fours a week in radios is already the restriction of the exercise/implementation of the right.
It is not possible to say that radical changes in the implementation have been made for human rights in Turkey in spite of legal amendments. As it is known, since 1999 following the official declaration of Turkey's candidacy to the EU, the Human Rights Association monitors the process in terms of both legal changes and implementation. Within this monitoring two basic human rights categories, prohibition of torture and the freedom of expression, are given a special importance.
However, we need to address one of the unacceptable legal practices. In the field of freedom of expression, when a restrictive article has gained a bad reputation, it is replaced by use of another article in the legislation, as it has already been observed through the shift from Article 8 of the Anti-Terror Law to the Article 312 of the Turkish Penal Code. This continues until that article become known, then another article is brought for use. Article 169 of the Turkish Penal Code is another one. Article 169 of the Turkish Penal Code which prescribes the crime of adding and assisting to the ilegal organisation is applied to individuals who make a petition or make a speech in a panel/conference. Human rights defenders also get their share in the practice of this article. For example, Executives of Ankara Branch of the Human Rights Association are under trial since 3 years due to their work on prisons and death fasts. Chairwoman of Ýstanbul Branch of Human Rights Association, Kiraz Biçici, as she described the 19 December military operation to prisons as massacre, was prosecuted to 3 years and 9 months heavy imprisonment.
In the field of freedom of expression, it is obvious that there is also need to change mentality beside amendments in the legislation.
Osborn’s Concise Law Dictionary, at p.196
Nutshells Human Rights, at p.1
Twenty-second General report, 1989, point 801
Constitutional and Administration Law, at p. 321
European Human Rights Reports 2003, issue 36
Constitutional and Administrative Law, at p. 323
Media Law & Human Rights, by Andrew Nicol QC, Gavin Millar QC & Andrew Sharland, at p. 12
Amnesty International report 2002
Hurriyet Newspaper (Turkish) October 2001
Amnesty International January 2002
Amnesty International, Al Index: EUR 44/007/2002
Human Rights Watch “www.hrw.org/press”
Amnesty International, Al Index: EUR 44/007/2002
Human Rights Watch www.hrw.org/press
Financial Times (U.K. edition) 15 October 2001.
Media Law and Human Rights, Andrew Nicol QC, Gavin Millar QC, P. 4. Blackstone 2001 1st Ed
The Independent Newspaper, 4 March 2003, Mary Dejevsky
Media Law and Human Rights, Andrew Nicol QC, Gavin Millar QC, P.32
Media Law and Human Rights, Andrew Nicol QC, Gavin Millar QC, P. 30
Turkiye Cumhuriyeti Anayasasi, 1982 (Turkish Constitution), Ankara, published in year 2000
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Amnesty International Report on Turkey, 2000
Amnesty International, 4 December 2000
which was approved on 25/06/1993
of the CSCE Humanitarian Conference of 3rd October 1991
Turkey has accepted and signed these declarations.
Nutshells Human Rights by Maureen Spencer, Page 61
, Human Rights Violation in Turkey 2002 Press Release.
, Human Rights Violation in Turkey 2002 Press Release.