The Human Rights Action Plan revealed by Turkish Pres. Recep Tayyip Erdoğan makes bold claims of progress in human rights, freedom of expression, freedom the press and judicial independence. Yet, instead of proposing legislative amendments, the Action Plan primarily seeks to address practice-related issues and fails to provide any concrete information on the actual scope of its activities. The mere exception in this regard was, however, the promise to introduce new legislation that would raise the bar for imposing detention on remand.
Tightly squeezed by ongoing economic and political concerns, Pres. Erdoğan unveiled the “Human Rights Action Plan” on 2 March 2021.
Drafted by the Ministry of Justice, the government released a 128-page-long action plan with a front cover caption proudly declaring, “Free Individual, Strong Society: A More Democratic Turkey.” But what exactly has the government pledged to society with this plan?
The Action Plan spells out a total of 9 key targets, 63 objectives and 256 activities, and its purported aim is briefly described as a move towards building a more robust “human rights” protection system.
The right to a fair trial, judicial independence, improving the freedom of assembly and religion, safeguarding the right to material and spiritual integrity, and the right to property were among the outstanding targets of the action plan, which also heralded efforts for building up an increased administrative and social awareness on human rights.
Here a discussion under following headings;
The Human Rights Action Plan also sent a signal for the revival of EU accession talks, a subject from which the Erdoğan administration has long ago taken distance. That is, the action plan expressly identified steering efforts towards harmonisation with the EU Acquis, achieving progress in all negotiation chapters, and swiftly opening the remaining chapters once political barriers are removed among its key objectives. In this regard, the Plan further declared that “within the framework of mutual rights and obligations and in view of the need for rejuvenation in the partnership law, the accession process to the European Union shall be resumed resolutely; and in particular, efforts will be accelerated with a view to meet the benchmarks expected to be met within the Visa Liberalisation Dialogue.”
The Action Plan identified its first key target as strengthening the conception of the rule of law based on human rights and stipulated that both the legislation and its practice shall be reviewed on a regular basis and all necessary measures will be taken to this end.
While the Action Plan pledged to introduce necessary amendments to legislation on political parties and elections to enhance democratic participation, it failed to provide details on this matter. Currently, Turkey maintains a 10% electoral threshold political parties must surpass in order to take seats at the national parliament. Yet, AKP and MHP are also considering lowering the electoral threshold and overhauling the electoral system on the side. For this very reason, observers don’t expect the plan to generate any positive outcome for democracy.
Another critical element of the Human Rights Action Plan is the government’s commitment to “assess the implementation of individual application procedure [to the Constitutional Court] over the past nine years and increase its efficiency.” However, the Action Plan is desperately vague as to how such a change could be achieved. Moreover, there was no word about how executive interference attempts with the judicial process at the Constitutional Court would be thwarted. It is no secret the Constitutional Court has drawn the ire of the executive for its judgments under the individual application since 2012. Among others, for instance, in 2015, Pres. Erdoğan publicly avowed he doesn’t “recognise” the Constitutional Court’s rulings on the legality of the detention of journalists Can Dündar and Erdem Gül. Devlet Bahçeli, the leader of Erdoğan’s recent ally, the Nationalist Movement Party (MHP), also suggested the top court should dissolve itself. Finally, and more recently, despite the clear constitutional provisions, lower courts have unlawfully defied the Constitutional Court’s rulings in the cases of Şahin Alpay, Mehmet Altan and Enis Berberoğlu. Yet, in the face of these adversities, the Action Plan failed to incorporate additional safeguards to ensure lower courts’ compliance with Constitutional Court verdicts.
The Action Plan pledges judicial independence and to strengthen the right to a fair trial. Most notably, in the aftermath of the July 15 failed coup, the executive branch significantly extended its influence over the judicial system. While the judiciary continued delivering rulings in favour of the government, prosecutions mostly against dissenters have become all the more visible.
Notwithstanding this grim picture, however, the Action Plan declared additional steps shall be taken to improve judicial independence and impartiality, adding “geographical guarantees and security of tenure for the judges will be strengthened” to this end. Thus, should the government specify and adopt concrete safeguards in this field, judges and prosecutors would be expected to perform without the “fear of exile.” In light of previous examples, this is indeed a critical concern. For instance, Judge Murat Aydın was exiled from Izmir to the province of Trabzon after he appealed to the Constitutional Court of Turkey, challenging a penal provision on insulting the President. Judge Mustafa Karadağ, chair of the Union of Judges, was transferred to the southeastern province of Şanlıurfa for his rulings delivered in Ankara. Karadağ later requested early retirement following the decision. Similarly, Judge Aydın Başar, was exiled from Balıkesir province to the remote eastern province of Erzurum after granting a judgment of acquittal in a case initiated on the charge of insulting the President.
The Action Plan further envisions the repeal of the provision allowing the justice minister to temporarily assign judges to a different jurisdictional zone.
The Action Plan does not introduce any meaningful proposal for the restructuring of the Council of Judges and Prosecutors, a critical matter considered to be the root cause of many lingering problems. Moreover, despite wide criticisms, the justice minister and deputy minister will continue to hold seats at the Council, a significant power allowing the minister, acting in the capacity of a chair, to exert influence and intervene in the work of the Council. This will undoubtedly continue to pose a serious threat to judicial independence.
The Action Plan envisions the restructuring of the promotion scheme for judges and prosecutors on the basis of an objective performance criteria that would include, among other attributes, compliance with the target-time limits, sufficient reasoning in rulings, improved accuracy rates in decisions, and sensitivity to human rights. A full realisation of these criteria has the potential to bring some order into the judicial system, as the Turkish judiciary has, hitherto, failed to show sufficient sensitivity to human rights, and it is, in particular, exceedingly susceptible to the political climate. It isn’t, for instance, easy to recall positive rulings on the cases relating to the freedom of the press and expression, and the freedom of assembly and association. That is, the cases of Cumhuriyet and Sözcü newspapers as well as the Gezi Park trial, where Osman Kavala is among the defendants, are some of the most notorious examples in this regard.
Should the sensitivity to human rights as a performance criterion in the promotion of judges and prosecutors be implemented in a meaningful manner, it could potentially alleviate some of the systematic issues arising from the current state of affairs in the justice system. Yet, as stated before, this requires a full implementation by the Council of Judges and Prosecutors. In the current practice, however, while Akın Gürlek, who is the chairperson of the panel of judges refusing to abide by the verdict of the Constitutional Court in the case of Enis Berberoğlu, held his seat; others delivering judgments that irked the executive were assigned to other locations.
Another major problem in the Turkish judiciary is the lack of sufficient reasoning in their rulings. Thus, the adoption of new measures would be critical to countervail this long-standing challenge. Should the legislator introduce an amendment allowing the Criminal Chambers of Appellate Courts to overturn first instance decisions manifestly lacking sufficient reasoning or impinging on the right to defence, this would help higher courts to quash “politically motivated” verdicts.
The Action Plan also promises higher standards for the freedom of expression and the press. Yet rather than introducing legislative amendments, commitments in the Plan in this regard are solely confined to addressing implementation challenges and organising training programs for the judiciary.
That is, the Action Plan commits to “the provision of regular training for judges, prosecutors, and law enforcement with a view to ensure that an expression of thought not be subject to an investigation if it doesn’t exceed the limits of imparting information or is made for the purpose of criticism.” However, one inevitably recalls while the very same promise has already been pledged in relation to the offence of “disseminating propaganda in favour of a terrorist organisation” in the first judicial reform document adopted by the TGNA in October 2019, many courts remained squarely recalcitrant in applying this assurance in the past two years. This attitude has therefore become yet another indicator proving the key challenge for fundamental rights is the “implementation.”
According to the statistics compiled by the Journalists’ Union of Turkey, 65 journalists are currently imprisoned in the country. The Action Plan, however, vows for “measures to be taken to ensure the “safety of journalists”, a critical component for the freedom of expression and the press, to be the overarching principle and facilitate professional activities of journalists” without spelling out any concrete steps.
Indeed, press perceived as dissenting media has suffered greater administrative and judicial pressure in recent years. Turkey’s official Press Advertisement Agency issued decisions suspending the ability of opposition newspapers, such as Cumhuriyet, Birgün, Evrensel and Sözcü to sell advertisements. The Radio and Television Supreme Council (RTÜK) has frequently levied hefty administrative fines on TV channels including Tele 1, Halk TV, Fox TV and KRT, all perceived as critical of the government. Finally, the Turkish Presidential Communication Directorate has cancelled the press cards of many reporters.
Yet, the Action Plan is mute on which measures would be taken to remove such impediments on the freedom of the press.
The Action Plan states, “necessary measures shall be taken to address practice-related problems which result in blocking access to the whole website rather than the relevant content.” The blocking of internet sites is, in itself, a major concern in Turkey.
While the Law No. 5651 on “Regulation of Publications on the Internet and Suppression of Crimes Committed by means of Such Publication” only allows for imposing a partial block on the URL of content, in practice it is entirely a different story.
For instance, sendika.org, an opposition news portal, was blocked 62 times, forcing its editors to adopt a new domain name after each new blocking order. Moreover, instead of ruling for a blocking order for the related content, the Criminal Peace Judgeship hasn’t lifted the ban on the whole portal for over 4.5 years. Thanks to a Constitutional Court’s decision finding a violation, the portal could only be reopened in 2020.
Another news site, Odatv.com, suffered the same fate. Currently, the news site remains completely blocked after a number of appeals were summarily dismissed. The individual application filed to the Constitutional Court is, however, still pending.
Although the Action Plan pledges for efforts to address practice-related problems, it failed to provide any concrete measure or method to this end. Moreover, Article 8/A of the Law No. 5651 with the title “removal of content and/or blocking of access in circumstances where delay would entail risk” allowing access-blocking for highly ambiguous reasons such as “the protection of national security and public order” still remains in effect.
One of the most critical objectives of the Human Rights Action Plan is the purported aim of introducing new criteria for pre-trial detentions. Turkey has never been reluctant in using pre-trial detention as a means for silencing and intimidating dissenting voices. In spite of European Court of Human Rights (ECHR) rulings in favour of his release, Selahattin Demirtaş, the former co-chair of Peoples’ Democratic Party (HDP), remains in prison. The same goes for Osman Kavala, a human rights defender.
The Action Plan envisions “measures to ensure the use of pre-trial detention as an exceptional preventive measure” and promises for a more robust right to appeal and right to defence.
This amendment is arguably the most palpable component of the Action Plan, expressly articulating one of its goals as the strengthening of the right to liberty and security of a person. That is, the government shall introduce a vertical system of appeals against decisions of Criminal Peace Judgeships ordering pre-trial detention or other preventive measures. The Criminal Peace Judgeships entered into force in 2014. Still to this date, an appeal against a decision ruled by a criminal peace judge could only be filed before a “higher” criminal peace judge, and the decision of the latter would be final. Thus, it is a system of closed and horizontal appeals. Moreover, criminal peace judges appointed by the Council of Judges and Prosecutors, chaired by the justice minister, have consistently failed libertarian rulings.
If realised, the horizontal system of appeals between criminal peace judges would be replaced by a vertical system of appeals to either the criminal courts of first instance or the assize courts, thereby paving the way for a more appropriate judicial review. In addition, decisions of a single order for pre-trial detention would be reviewed by a panel of three judges at the assize courts.
Another critical detail under this subheading is the introduction of a minimum threshold of professional seniority in the appointment of judges to Criminal Peace Judgeships. Currently, there is no rule in this regard which, in turn, results in judges taking these positions despite a lack of sufficient experience.
In line with the principles of “proportionality and necessity” of detention, the Action Plan states the list of the specific catalogue of offences will be narrowed. Currently in practice, the Turkish judiciary doesn’t only order pre-trial detention for offences stipulated in the list of the specific catalogue of offences, but also for other offences, such as insult or public incitement to hatred or hostility, requiring a sentence of imprisonment for which the upper limit is less than two years. Similarly, although “insulting the President” isn’t among offences stipulated in the list, by 2020, a total of 63,000 individuals accused of committing this offence faced prosecutions, and 9,554 of them were convicted. It is important to note as the offence of “insulting the President” requires a sentence of imprisonment for a term of up to 4.5 years, convicted persons are inevitably incarcerated. Moreover, even during preliminary investigations initiated into this offence, judges very often order suspects to be remanded in pre-trial detention.
Thus, narrowing the scope of the list of the specific catalogue of offences, which also constitutes a statutory presumption of the existence of grounds for pre-trial detention under Article 100 of the Turkish Criminal Procedural Code, would be a positive step in favour of fundamental liberties. In practice, a reduced risk of imprisonment would encourage free speech.
The existence of concrete evidence shall be sought for delivering pre-trial detention orders for offences listed under the specific catalogue of offences; and thus, this revision will contribute to a stronger emphasis on the exceptional nature of pre-trial detention as a preventive measure. Under current applicable legislation, the existence of facts giving rise to a “strong suspicion” an offence has been committed suffices in fulfilling the grounds for pre-trial detention. The Action Plan replaces this regulation with the “concrete evidence” requirement. This has the potential to forestall unlawful and arbitrary detentions.
Ill-treatment by law enforcement officials is among one of the most entrenched problems in Turkey. In line with the declared target of “safeguarding the right to material and spiritual integrity of person”, the Action Plan pledges for a diligent implementation of the zero-tolerance policy in torture and ill-treatment cases, and lists the following activities to this end:
- The legislation, including those under the Law on Duties and Powers of the Police, regulating the use of force and weapons will be reviewed in light of international standards.
- Regular trainings will be provided to law enforcement officials and neighbourhood guards on the use of force and weapons as well as on acts and behaviours that could amount to ill-treatment.
- In light of the recommendations of the European Committee for the Prevention of Torture and the UN Committee against Torture, standards, including the physical capacities, of detention and removal centres will be maintained and reviewed on a regular basis.
- The awareness of law enforcement officials will be raised with a view to ensure arrest and detention practices are conducted without any prejudice to human integrity.
Within the context of the zero-tolerance policy for torture, as it had been previously adopted with respect to the criminal offences, the statutory limitation periods with respect to disciplinary infringements will also be abolished. This is indeed a highly critical commitment since under the applicable legislation, should the judicial authorities fail to initiate a criminal prosecution into incidents requiring warnings or written reprimand within one month or into those requiring removal from the office within six months, the statute of limitation applies, resulting in the abatement of the action. Thus, this commitment has the potential to prevent public officials accused of torture from avoiding disciplinary sanctions.
Another commitment of the Action Plan was to increase the efficiency of the Law Enforcement Monitoring Commission to ensure effective, speedy and transparent oversight. Even on paper, this is a critical target since there has been a marked increase in the number of human rights violations, particularly arising from the acts of the police officers. Despite the widespread allegations of ill-treatment occurring during arrest and detention and disproportionate use of force in the policing of demonstrations, authorities have hitherto failed to initiate effective administrative or criminal investigations.
Yet, the Action Plan heralds a promise on this matter: i.e., “In order to ensure an effective administrative investigation process to be launched into the rights violations arising from the acts of law enforcement and other public officials, the current practice will be reviewed in light of international standards.” The Action Plan also pledges for an effective disciplinary procedure against public officials responsible for rights violations.
Recently, the controversy raging over the subject of strip searches of detainees in police stations or prisons has grown exponentially. In this regard, the Action Plan states, “the commitment to ensure that frisk and body searches are performed without any prejudice to human integrity will be maintained and regular trainings provided to law enforcement and staff at the penitentiaries will continue.” Such trainings would be helpful in preventing the arbitrary use of strip searches in police stations and prisons.
The Action Plan also offers a number of targets aiming to improve the rights and entitlements afforded to detainees and convicts in penitentiaries. The Action Plan pledges the establishment of campus libraries at penitentiaries to facilitate access to periodicals and non-periodicals. However, only recently, the legislator adopted a specific provision restricting inmates’ access to non-periodicals by an amendment introduced in April 2020. That is, the said provision incorporated into the Law on Execution of Sentences and Security Measures in 2020 specified “newspapers denied the right to publish official announcements and advertisement by the State Advertisement Agency will not be admitted to the penitentiaries.” The Action Plan, however, remains silent on this provision.
The Action Plan also envisions a “Human Rights Commission for Penitentiary Institutions.” This is an important target whose objective is declared as securing more effective monitoring and follow-up mechanisms for penitentiary institutions in line with international standards. The planned commission will also be independent with the participation of representatives from bar associations, civil society organisations and universities.
The Action Plan further commits to taking a critical step for minors at penitentiary institutions. To this end, the Action Plan aims to institute specifically designated units where convicted mothers accompanied by children between the ages of 0-6 shall serve their sentence, and these mothers will be granted greater opportunities to benefit from the probation system. Currently, at least 600 minors accompany their mothers in penitentiary institutions, living under overcrowded and difficult conditions.
As previously stated, the Action Plan pledges to strengthen the right to assembly and association. To this end, relevant legislation and practices will be reviewed in light of international standards and awareness-raising activities will be tailored for provincial and district governors and law enforcement agencies. Currently, law enforcement in Turkey doesn’t even comply with the Law on Meetings and Demonstrations. Police officials almost virtually encroach upon the right to hold a peaceful assembly. While it is welcoming news that awareness-raising activities will be organised for law enforcement agencies, this activity alone is, however, far from satisfactory in preventing arbitrary exercise of power in assemblies.
The Action Plan commits to guarantee the enjoyment of the freedom of religion and conscience in the widest extent. In line with this objective, relevant legislation and practices will be reviewed in light of international human rights standards. Regardless of their religion, all public and private sector employees as well as students will be granted leave of absence on their holidays. Regular meetings with representatives of non-Muslim communities are also planned to identify and resolve problems. Finally, provisions will revise the Regulation on Foundations on the composition of and election for executive boards of non-Muslim foundations.
Yet, despite the loudly articulated objective of guaranteeing the enjoyment of the freedom of religion and conscience, the Action Plan appears to give no hint as to whether such assurances will encompass citizens observing the Alevi faith. To this day, compulsory religious classes for Alevi citizens are in force. Similarly, the State remains recalcitrant in granting legal status to cemevi, meeting houses, as places of worship, and measures have yet to be taken to extend the system of granting exemptions - which mosques enjoy - from payment of electricity and water bills for places of worship under Turkish law to cemevis.
“Increasing the Effectiveness of the Fight against Hate Speech and Discrimination” is also among goals set under the Action Plan, where authorities pledge for “an effective fight against hate speech and discrimination based on language, religion, race, colour, sex, political view, philosophical belief, sect, or similar other grounds.” The Action Plan further vows to take another concrete step to introduce a new provision to the Turkish Penal Code with respect to discrimination and hate crimes.
Currently, Article 122 – entitled “hatred and discrimination”– of Turkish Penal Code reads as follows: “Any person who (a) Prevents the sale, transfer or rental of a movable or immovable property offered to the public, (b) Prevents a person from enjoying services offered to the public, (c) Prevents a person from being recruited for a job, (d) Prevents a person from undertaking an ordinary economic activity on the ground of hatred based on differences of language, race, nationality, colour, gender, disability, political view, philosophical belief, religion or sect shall be sentenced to a penalty of imprisonment for a term of one year to three years.”
Furthermore, Article 216 of the Turkish Penal Code classifies “public incitement to hatred or hostility” as an offence and requires a penalty of imprisonment for a term of six months to one year for any person who publicly degrades a section of the public on grounds of social class, race, religion, sect, gender or regional differences. The same article also states any person who publicly degrades the religious values of a section of the public shall be sentenced to a penalty of imprisonment for a term of six months to one year.
Another target set under the Human Rights Action Plan is to increase the effectiveness of combating domestic violence and violence against women. Yet, this promise corresponded to a time when Turkey pulled out of the Istanbul Convention by a presidential decision issued by Pres. Erdoğan.
The Plan, however, envisions aggravating circumstances prescribed for offences committed against a spouse to become applicable to those committed against a divorced spouse, while stalking will also be regulated as a separate offence.
In a similar vein, in order to secure effective access to legal remedies for women victims of violence, lawyers shall be assigned to cases involving the offences set under Article 234 of Turkish Penal Code, and conditions for benefiting from state-funded legal aid programs will be eased.
In order to prevent property right violations, the Expropriation Act and other relevant legislation, including provisions on immediate expropriations, shall be reviewed, and measure will be taken to ensure the “public interest” decision in the expropriations is explained in a clear, foreseeable, and comprehensible manner. Currently, lands or houses can be immediately expropriated by presidential decree.
As announced, the Action Plan will be implemented in the next two years, with a purported aim of providing strong support for efforts towards a new constitution. Yet, the question as to whether all these measures would yield any positive result is intrinsically contingent upon the government’s willingness in adopting a libertarian attitude.
In conclusion, despite Pres. Erdoğan’s promise for more “freedom” to citizens, ensuing developments showed the country is heading in the opposite direction. Only shortly after Devlet Bahçeli, Turkey’s Nationalist Movement Party’s (MHP) leader and Erdoğan’s ally, called for the HDP to be banned, the Chief Prosecutor of the Court of Cassation submitted an indictment to the Constitutional Court of Turkey for its closure. Moreover, Ömer Faruk Gergerlioğlu, a member of parliament for the HDP representing the Kocaeli, was convicted over a retweet of a T24 news story. Turkish Court of Cassation swiftly upheld the conviction and sentence of two years and six months in prison. Following this decision, the speaker of the parliament stripped Gergerlioğlu of his parliamentary seat by reading out the notification of his conviction in the general assembly of the parliament. Gergerlioğlu is currently imprisoned.
Another shocking development was the President Erdoğan’s move to unilaterally quit the Istanbul Convention without seeking the consent of Parliament. Students at Bogazici University, on the other hand, also continued to face a harsh police response amid their protests.
Thus, these developments are clearly at odds with the Action Plan’s pledges. In other words, what happened in the aftermath was far from libertarian, but merely a progressive intensification of the already-existing crackdown on the society.