CHAPTER 23: CHAPTER OF JUDICIARY AND FUNDAMENTAL RIGHTS

 

The extent of the Chapter of Judiciary and Fundamental Rights covers all issues with respect to the functioning of judiciary, and human rights. The Draft Post-Screening Report regarding this chapter has been prepared and it is on the EU Council of Ministers’ agenda for approval. The Post-Screening Report regarding Chapter 23, for which our ministry is responsible, has not been officially submitted yet. There are 6 benchmarks which were not reported yet officially in this chapter:

1. Preparation of a Judicial Reform Strategy Paper aiming to strengthen the independence, impartiality and effectiveness of judiciary

Preparation of Judicial Reform Strategy as part of the EU negotiations is one of the benchmarks of Chapter 23. Therefore, the Judicial Reform Strategy and Action Plan has been accepted by the Council of Ministers in 2009 and submitted to the organs of the EU. An update of the Judicial Reform Strategy was decided due to the realization of most of the goals foreseen in the First Strategy Paper. Update studies are still in progress, which were initiated to include the implementation status of the Strategy Paper which has a substantial function in the ongoing actions in jurisdiction, to solve problems occurring during the implementation and to reflect on the document the recent developments in the world and in our country. Lately, a comprehensive joint workshop has been made in the Judges’ House of Ankara in July 14-15, 2014, with the participation of all stakeholders. The process of inclusion of the decisions taken during the workshop into the Paper are still ongoing. The finalization of the works is expected in November- December 2014.

2. Establishment of the Ombudsman Institution and Independent Human Rights Presidency

A) Establishment of the Ombudsman Institution

Law no. 6328 on Ombudsmanship has been enacted by the Grand National Assembly of Turkey in 06/14/2012, and it has been published in the Official Gazette in 06/29/2012 with no. of 28338.

B) Legislation Preparation Regarding the Amendments in the Law of “Human Rights Institution of Turkey”

The Human Rights Institution of Turkey has been established by the Law no. 6332 in 06/21/2012. The Institution began its work after making its first meeting on the 23rd of January 2013, following the accomplishment of the member selection process of the Human Rights Committee. Turkey ratified the Optional Protocol of the “United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment” regarding the audit of all detention places by means of periodical visits with the Decree of the Council of Ministers numbered 2011/1962. According to this Protocol, it has been undertaken that each of the signatory countries shall establish one or more national prevention mechanisms on national scale for preventing torture and other cruel, inhuman or degrading treatment or punishment. Under the given pledge, it has been decided with the Decree (dated 12/09/2013) of the Council of Ministers published in the Official Gazette in 01/28/2014 that the Human Rights Institution of Turkey shall be designated as the national prevention mechanism in order to execute the duties and exercise its authority that is anticipated in the Optional Protocol to the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Being the national prevention mechanism brought up the need to strengthen the structure of provincial organization and increase the number of personnel and to improve the qualification of the institution of the Human Rights Presidency, therefore, the “Draft Law on Amending the Law of the Human Rights Institution of Turkey” has been prepared. At present, technical work on the law has been completed after gathering the comments of the relevant ministries for the draft and the Draft has been submitted to the Prime Ministry.

3. Preparation of an Action Plan For Ensuring Better Implementation of the Fundamental Rights

Department of Human Rights was established within the structure of our Directorate General of International Law and Foreign Relations. Inspecting the types of the cases that we were sentenced before the ECtHR, the Draft for the Action Plan on the Prevention of ECHR Violations was adopted by the Council of Ministers in 02/24/2014 and published in the Official Gazette in 03/01/2014. Also, the Draft Law on the Solution of Some of Applications Made to the ECtHR By Paying Compensation has been prepared and become law in the Grand National Assembly of Turkey in 01/09/2013, and entered into force after it was published in the Official Gazette in 01/19/2013.

A) Implementation of the Action Plan on Prevention of Violations of the European Convention of Human Rights

The Action Plan on Prevention of ECHR Violations, which was prepared by The Human Rights Department of the Directorate General of International Law and Foreign Relations of our Ministry, was accepted with the Decree of the Council of Ministers in 02/24/2014 and was published in the Official Gazette dated 03/01/2014 and numbered 28928.

Following the acceptance of the action plan by the Council of Ministers, the process of monitoring the scheduled activities by the responsible institutions will be carried out by the Human Rights Department of the Directorate General of International Law and Foreign Relations of the Ministry of Justice. The responsible institutions will report the Human Rights Department every six months during this monitoring period. Implementation reports related to the action plan will be submitted annually to the Prime Ministry by the Ministry of Justice.

In this context, a copy of the action plan was sent to various ministries/institutions signed by our Minister of Justice Mr. Bekir BOZDAĞ by the date of 05/20/2014, to guarantee the determination of the responsible unit(s) for implementation of the action plan and to assign two responsible persons in each unit one of whom must be at least a Head of Department. Also, internal units of our ministry were sent formal letters ordering the notification of the liaison personnel, and Deputy Directorate of Council of Europe and Human Rights of the Ministry of Foreign Affairs and the Directorate for Political Affairs of Ministry for EU Affairs were informed about the process due to their relevance.

At the time being, all responsible units are expected to deliver their initial reports, and after the evaluation of these reports a meeting with the related units is planned within December.

B) Participation to the EU Agency for Fundamental Rights

The EU Agency for Fundamental Rights was established as an independent institution on the purpose of prevention and development of the fundamental rights within the administrative structure of the EU, with the Regulation dated 02/15/2007 and numbered 2007/168/EC. Candidate countries can participate as observers in the agency which is located in Vienna.

Main duties of the agency are briefly as follows;

- gathering and analysing objective and solid data, including the information given by member states, union institutions and NGO’s.

- establishing the standards and methods on the credibility and the objectivity of the data

- executing studies of research upon the demand of the union institutions

- preparing annual reports on fundamental rights.

The coordination through the process of participation in the EU Agency for Fundamental Rights is carried out by the Ministry of EU Affairs. The process of participating in the Agency for Fundamental Rights is expected to proceed with the receipt of the comments of the institutions; in case the majority of the comments are positive for participation, determination of the possible costs (national amount of contribution) for joining the committee; receipt of the comments of the institutions related to the costs; in case the majority of the comments are positive, communicating the “Intent of Participation” to the Commission. It is expected that the annual cost of participation to the agency will be about 800.000 to 1.000.000 Euros, and that there is a chance of discount on the final amount if demanded.

C) Establishment of the Law Enforcement Monitoring Committee

The aim of the “Law on Establishment of the Law Enforcement Monitoring Committee” to enhance the liability, develop the transparency, obtain a faster and more effective complaint system is to monitor and record in a central system the actions and operations which shall be carried out by administrative units resulting from their actions, attitudes and manners which require disciplinary punishment or alleged crimes of general law enforcement officers. Also it is aimed to ensure the establishment of the Law Enforcement Monitoring Committee and to determine the way it operates, the missions and the authority of the committee, the methods and procedures of other administrative measures.

The mentioned draft has been sent to the Presidency of the Grand National Assembly of Turkey in 03/05/2012. The Internal Affairs Committee in charge of the draft issued its related report in June 2012. The draft is currently on the agenda of the Grand National Assembly of Turkey.

D) Crime Victims

In order to offer post-crime psychological support and guidance, prevent the unjust treatments, provide financial assistance and serve in such ways (especially to the victims of the vulnerable group such as infant victims, domestic violence victims and sexual crime victims), the Department of Victim Rights was established within the body of General Directorate of Penal Affairs of the Ministry of Justice with the approval from the Minister in 11/18/2013. A Scientific Committee has been established with the approval of the Minister in 02/18/2014, in order to prepare the “Draft for Victim Rights Act”. Within the extent of the draft law preparations which is coordinated by the General Directorate of Laws of the Ministry of Justice and the Victim Rights Department of the General Directorate of Penal Affairs, the Turkish translations of the relevant international texts on victim rights (starting with the European Parliament and Council Directive dated 10/25/2012 and numbered 2012/29) were obtained and evaluated, and the implementations of other countries on the subject have been scrutinised lately by an international symposium which took place in 10/30-31/2014. Preparation of the draft is still in progress and it is planned to be delivered to the Prime Ministry in the soonest time.

E) Protection of the Personal Data

Early studies on the Draft Law of Protection of the Personal Data were initiated in 1989 and various draft laws were prepared until the 2000’s, but these were not finalized. Protection of the Personal Data has been handled independently under the Chapter 23 “Judiciary and Fundamental Rights” for which our ministry is directly responsible. It is also a subject that the EU Commission frequently focuses on and it is discussed in the meetings of chapters such as “Information Society and Media” and “Consumer and Health Preservation” and other chapters relating with the transfer, preservation and process of the data, under the title of police cooperation in Chapter 24.

Personal data is all the information of a specific or unspecific person; such as name, address, telephone number, sicknesses, bank account numbers, financial records, penalties, friends and relatives.

There are no clear and adequate legal arrangements for the process of personal data in our country. Uncontrolled process of these data violates some fundamental rights.

Personal Data Protection is considered in the Progress Report of 2008, Accession Partnership Document, Chapter 23 Post-Screening Draft Report amongst the areas that Turkey must primarily adapt to.

Concerning the respect for private and family life and the protection of the personal data, Turkey is required to adapt its regulations to the acquis of data protection and especially to the Directive no: 95/46/EC, and in this context, is required to institute a fully independent data protection audit authority. Turkey shall also approve the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (CETS No:108), and the Additional Protocol to this Convention regarding Supervisory Authorities And Transborder Data Flows (CETS No:181). Turkey signed the Convention numbered 108 in 1981, but still did not approve it. The draft which was worked on for years, has been amended and sent to the Prime Ministry in 02/04/2014, and handled in the Council of the Ministers once again in 11/03/2104. The draft was sent back to our ministry in need of some amendments, and studies are now complete. The draft is expected to be sent to the Council of Ministers in order to be submitted to the Grand National Assembly of Turkey.

E) Anti-Discrimination and Equity Act

The draft Law for the Anti-Discrimination and Equity was prepared in the purpose of implementing the principal of equity and the restriction of discrimination effectively which are present in the 10th Article of the Constitutional Law, preventing the victimizations caused by discrimination, performing the responsibilities originating from the international conventions of which Turkey is a contracting state, and assuring the adaptation to the EU Acquis.

Works on the Draft Law for Anti-Discrimination and Equity are conducted by the Ministry of Internal Affairs. The draft has been updated according to the comments from the related institutions. The draft is presently at the approval stage of the Minister and is expected to be sent to the Prime Ministry soon.

4. Review of the Legislation on Freedom of Expression and Foundations in line with the European Convention on Human Rights and ECHR jurisprudence

A) Democratization Package

“Law no: 6529on Amending Some Laws for the Development of the Fundamental Rights and Liberties”, which was addressed by the Prime Minister in 09/30/2013 and known as “the Democratization Package” by the public, was accepted in the Grand National Assembly of Turkey in 03/02/2014 and published in the Official Gazette in 03/13/2014. With this Law, widening the use of the right to elect and be elected and the right to congregate and demonstrate and the prevention of discrimination of a person which is a fundamental right, are aimed.

B) Meetings and Demonstration Marches

Major amendments have been made to the “Law no:2911 on Meetings and Demonstrations” (known as “the Democratization Package” by the public) with the “Law no:6529 on the Amendments in Some Laws for the Development of the Fundamental Rights and Liberties” and was published in the Official Gazette in 03/13/2014. Through these changes, the influence of the government commissioners and state organs on the beginning, routes, management and the termination of the meetings, has been decreased; a participatory scheme has been ensured through taking comments of NGO’s (political parties, vocational organizations and unions) and revision of government commissioners’ powers by the regulatory board. This has laid the groundwork for use of the right to assemble and protest under democratic conditions. Action Plan for the Prevention of Violations of the European Convention on Human Rights which was approved on February 24th 2014 by UHDİGM’s Department of Human Rights and target no. 12.2 on “Preventing Intervention and Prosecution to Meetings and Protests which do not Promote Violence or Involve Violence” under goal no. 12 on Removing Obstacles on Freedom of Meeting and Organizing which was published in the Official Gazette no. 28928 on March 1st 2014 and it has been a crucial step for widening the scope of right to assemble and demonstration.

C) Dialogues with Citizens from Various Beliefs

In order to lift a number of obstacles that especially congregational foundations face on property ownership, reformatory measures have been taken since 2002. Additional liberties have been given to non-Muslim communities in management of their foundations, through the Law no. 5737 which was published on the Official Journal in February 2008 (receiving donations, performing financial acts and etc.). Decree Law no. 651 on returning property of congregational foundations and Provisional Law no. 11 on compensation for the property that have passed to third persons has been added to the Law of Foundations, which aims to fully compensate the mistakes that are possible in practice. In order to exercise their rights, foundation representatives need to submit concrete data and documents on concerned real estates. In this framework, out of 1560 submissions, 1493 were concluded and submissions on 67 real estate units are still under examination. Also, a new regulation is being developed on election of congregational managers’ election.

D) Changes that Judicial Reform Packages

Brought Majority of the issues on this subject have been addressed, especially by, Judicial Reform Packages no. 3 and 4. Aforementioned Packages have provided comprehensive amendments to the relevant Articles of Turkish Criminal Law (Articles 132, 133, 134, 215, 220, 318) and Anti-Terror Law (Articles 6 and 7).

In this framework;

Concerning freedom of press and expression in the scope of the 3rd Judicial Reform Package, cases and sentences for crimes that are committed through press or expressing other ideas may be postponed. In the scope of freedom of expression and press, amendments in Turkish Criminal Law have eliminated provisions which allow increasing of sentence in cases that the crime has been committed through press. Moreover, increasing sentences in cases that crimes are committed through press is prevented and publishing news on investigation and prosecution, provided that they do not exceed legal limits, shall not constitute crime. Sentence of ceasing broadcast temporarily, regulated under Article 6 of Anti-Terror Law, titled “Expression and Publishing”, is phased out. Provisional clause is added to the Press Law no. 5187 in order to ensure freedom of expression and press, in accordance with ECHR provisions and ECtHR decisions, provisions on recall concerning many written works, some of which later destroyed, that were made by various courts, were nullified.

In the framework of the 4th Judicial Reform Package, crucial developments have been made in order to enhance human rights standards, especially concerning freedom of expression and press. In this framework, crime of praising crime and criminals has been revised. In order for such act to constitute a crime, there needs to be a clear and immediate danger for public order. Publication and statements of terrorist organizations to which do not justify force, violence or threat are no longer considered a crime. It has been clearly adjudged that individuals who are not members to terrorist organizations and publish or distribute terrorist organizations’ declarations and statements shall not additionally be prosecuted for being members of terrorist organizations.

5-Submitting the Corruption Prevention Strategy to the Commission in order to develop efficient legal and institutional framework to combat corruption

Studies are conducted within Investigation Board of Prime Ministry. With developing and changing conditions in mind, studies were completed on Strategy of Enhancing Transparency and Reinforcing Fight against Corruption (2010-2014) no. 2010/56, which was adopted on 01/02/2010 and published on the Official Journal dated 22nd February 2010 and no. 27501, in order to eliminate elements that prevent transparency and feed corruption, for a more fair, accountable, transparent and reliable management system. Reports and draft legislations concerning measures (Declaration of Property, revision of provisions on declaration of property and other practices in Law on Fighting Bribery and Corruption and developing regulation which shall protect individuals who report corruption in public institutions, private companies and NGO’s) for which our Ministry as appointed as the responsible institution are adopted by Strategic Management Board and Commission and; our Ministry has fulfilled its duties that Strategy Plan has laid upon it.

6-Approval of Optional Protocol to the Convention against Torture

Draft Law on Approval of Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment was adopted on 23/02/2011 under the Law no. 6167. In the scope of aforementioned protocol, it was decided that Turkey Human Rights Institute shall be designated as a national prevention mechanism in order to fulfil the duties foreseen in the OPCAT and exercise its powers with the decision of Cabinet Council of 09/12/2013 which was published on the Official Gazette on 28/01/2014.

23. List of 23rd chapter acquis list

Guide on Chapter for Judiciary and Basic Rights in the process of European Union Negotiations

 


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