İHD Report on the “New Human Rights Action Plan”

Human Rights Department at the Ministry of Justice has been working on “A New Human Rights Action Plan” since 2018. The action plan was announced to the public by the Turkish Presidency within the scope of its second 100-day action plan. It was indicated that a new initiative was underway based on the “Action Plan for the Prevention of Violations of the European Convention on Human Rights” which was actually published in the Official Gazette of 1 March 2014. İHD should, however, underline that the action plan of 2014 was not enforced.

Human rights organizations were invited to a workshop at the Human Rights Department of the Ministry of Justice on 14 February 2019 in Ankara, Turkey in order to offer their assessments and recommendations within the scope of drafting of a New Human Rights Action Plan. İHD participated in this workshop and presented its opinions both in person and in writing and to the Ministry of Justice.[1]

Authorities had reconfirmed the drafting of a Human Rights Action Plan at the time when the Judicial Reform Strategy Document was publicized. İHD issued its report on the document incorporating its opinion and recommendations on 4 October 2019 and presented the report to the Ministry of Justice as well.[2]

In order for Turkey to deliver a new human rights action plan, the current state of affairs in terms of human rights should firstly be presented in its constitutional and legal dimensions.

Turkey is a country conducting accession talks with the EU. The EU Progress Reports reveal that these negotiations are at a de facto halt. Turkey made commitments under “democracy, rule of law, human rights and minority rights,” also known as the Copenhagen political criteria, while undertaking these negotiations. Within this process, however, a conception of anti-democratic government which was dubbed as the “Ankara criteria” has replaced those of Copenhagen. The perspective on human rights, too, has been thoroughly molded within the framework of security-based policies and enforced in the “first security then human rights” fashion. Therefore, Turkey needs to put forward a political will that will re-demonstrate its commitment to the Copenhagen political criteria.

Turkey is the only country in the Council of Europe against which political monitoring procedure was re-initiated with the Parliamentary Assembly of the Council of Europe (PACE) Resolution 2156 (2017) of 25 April 2017.[3] Unless Turkey complies with the recommendations of the Council set forth in its political monitoring resolution, the adoption of the government’s human rights action plan does not seem possible. Thus Turkey firstly needs to enact constitutional and legislative amendments and eliminate violations in practice to get out of the political monitoring process.

State of emergency (SoE) was declared on 20 July 2016 although the failed coup attempt of 15 July 2016 was quenched merely a day after, on 16 July 2016. Turkey has been governed under the SoE regime for two years. 32 SoE decree laws, all of which were signed into laws, were issued during this term. SoE decree laws introduced permanent amendments to hundreds of fundamental laws and thousands of articles. Turkey should assuredly amend and withdraw these decree laws that restrict rights and freedoms, particularly those that give way to impunity.[4]

Law No. 7145, which entered into force on 31 July 2018 after the lifting of the SoE, introduced many an amendment in current laws making some SoE practices continue to be in effect for another 3 years. The extension of the period of police custody up to 12 days, granting governors the authority to declare curfews for 15 days, enabling public institutions to dismiss public employees from their posts for another three years through a specialized commission, restrictions on peaceful assemblies and protests have virtually extended the SoE permanently for 3 years. Thus the amendments introduced by Law No. 7145 should be revoked without fail.[5]

Turkey introduced substantial amendments to its Constitution on 16 April 2017 under the reign of SoE and its political regime was replaced by one based on a one-man government known by the public as the “Turkish-Type Presidency.” All these constitutional amendments fully entered into force after the presidential and general elections of 24 June 2018.

Council of Europe Venice Commission’s “Opinion on the Amendments to the Constitution Adopted by the Grand National Assembly on 21 January 2017 and to be Submitted to a National Referendum on 16 April 2017”[6] of 13 March 2017 (No. 875/2017) contains quite significant points and recommendations. The Venice Commission stated, in paragraph 130 of this report, that the proposed constitutional amendments would introduce in Turkey a presidential regime which lacked the necessary checks and balances required to safeguard against authoritarianism. İHD would, therefore, like to state that it is necessary to meet Venice Commission’s fundamental critical points on constitutional amendments and to draft a new constitution necessarily dependent on the principle of separation of powers, committed to the principle of rule of law, based on human rights guaranteeing all kinds of minority rights. İHD would also like to note that the political will to be announced to the public about the drafting of a new constitution would be very important.

Further, two basic issues in the current constitution that would prevent the enactment of a judicial reform should immediately be dealt with until the commencement of the process for a new constitution. As the Venice Commission stated in its report, the president’s powers on the judiciary should be reviewed and modifications that would contribute to the formation of an independent judiciary should be materialized (e.g. assignments to the Board of Judges and Prosecutors and the Constitutional Court), and the president’s power to enforce legislative regulations in economic, social and cultural rights through presidential decrees should be revoked.

When one analyzes the political climate of Turkey, the significance of the deadlock in the solution of the Kurdish issue is revealed. Within the framework of the principles[7] adopted by the UN General Assembly in 2006 and updated thereupon, Turkey needs to go through a genuine conflict resolution process. İHD would, therefore, like to underline the importance of deliverance of a political will and Turkey’s accession into a genuine peace process to resolve the country’s main problems. Turkey needs to put an end to the ongoing conflict process and develop new policies that will resolve problems via peaceful dialogue for its very own democratization and to minimize its human rights problems.

İHD believes that the political power should first of all prioritize cleaning up the path without delay in order to materialize its new human rights action plan. İHD, thus, considers it a necessity to remove the restrictions upon the right to liberty and security of the person through substantial amendments to the penal legislation.[8] To achieve this, particularly laws on the rights to freedom of expression and freedom of association should be amended and restrictions on freedoms should be removed. The process should be prepared by improvements in such fundamental laws as the Turkish Penal Code (TPC), Anti-Terror Code (ATC), Code of Criminal Procedure (CCP), and the Code on the Execution of Sentences (CES). İHD is of the opinion that substantial changes should be introduced, especially to the CES, taking into consideration the current over-population, isolation-related problems and other allegations of rights violations in prisons.

For instance, the Judicial Reform Strategy announced by the Ministry of Justice has been drafted without consulting social opposition and opposition political parties. It is, however, of utmost significance to consult social segments that face such cases of injustice the most. Besides, about one third of members of the judiciary were dismissed due to the SoE which, in turn, gave way to the inauguration of persons accounting for about half of the current members of the judiciary. It should be remembered that even the best laws in the hands of poor practitioners do not serve justice. Securing good practices committed to the case laws of the European Court of Human Rights (ECtHR) and the Constitutional Court should be provided for. It should also be noted that many current problems, notably those in freedom of expression cases, arise from practice.

İHD is of the opinion that the dialogue practice seen in the human rights action plan should also be implemented within the process of judicial reform. İHD believes that paths for effective dialogue should be opened up during the course of drafting bills on judicial reform by the Ministry of Justice and reasonable requests in line with human rights law aiming to realize Turkey’s international commitments should definitely be incorporated into the bills. Otherwise our participation as a “human rights body” would merely be for keeping up appearances and nonfunctional, risking instrumentalization.

To start with, İHD would like to state that the problems in practice would be minimized if Turkey introduces necessary amendments to domestic regulations which will implement the provisions of the UN Declaration on Human Rights Defenders, adopted by the General Assembly Resolution A/RES/53/144 on 9 December 1998, and issues a presidential circular letter to this end.

Further İHD would like to point out that holding regular meetings between the Ministry of Justice and human rights organizations and professional bodies would enhance the human rights approach and contribute to the effectiveness of the dialogue.

Click 20200121_İHD Report_Human Rights Action Plan_EN for the full report in English (29,393).

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[1] https://ihd.org.tr/en/report-on-the-new-human-rights-action-plan/

[2] https://ihd.org.tr/en/ihd-report-and-recommendations-on-the-judicial-reform-strategy-document/

[3] See “The Functioning of Democratic Institutions in Turkey.” http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=23665&lang=en

[4] See Human Rights Joint Platform’s “State of Emergency in Turkey: Updated Situation Report” for an overall assessment and balance sheet of decree laws issued during this period. http://www.ihop.org.tr/en/wp-content/uploads/2018/04/SoE_17042018.pdf

[5] See İHD’s report of 1 August 2018 entitled“Regarding Law No. 7145 Regulating Permanent State of Emergency.” https://ihd.org.tr/en/regarding-law-no-7145-regulating-permanent-state-of-emergency/

[6] https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=cdl-ad(2017)005-e

[7]https://peacemaker.un.org/sites/peacemaker.un.org/files/GuidanceEffectiveMediation_UNDPA2012%28english%29_0.pdf

[8] See “İHD Report and Recommendations for the Elimination of Injustice in Penal Legislation”: http://ihd.org.tr/en/index.php/2018/09/26/ihd-report-and-recommendations-for-the-elimination-of-injustice-in-penal-legislation/