COMMISSION STAFF WORKING DOCUMENT TURKEY 2010 PROGRESS REPORT

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EUROPEAN COMMISSION
Brussels, 9 November 2010
SEC(2010) 1327

COMMISSION STAFF WORKING DOCUMENT
TURKEY 2010 PROGRESS REPORT accompanying the COMMUNICATION FROM THE COMMISSION

TO THE EUROPEAN PARLIAMENT AND THE COUNCIL

Enlargement Strategy and Main Challenges 2010-2011

EN {COM(2010) 660}

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TABLE OF CONTENTS

1. Introduction……………………………………………………..Error: Reference source not found
1.1. Preface…………………………………………………………….Error: Reference source not found
1.2. Context……………………………………………………………Error: Reference source not found
1.3. Relations between the EU and Turkey…………………Error: Reference source not found
2. Political criteria………………………………………………..Error: Reference source not found
2.1. Democracy and the rule of law…………………………..Error: Reference source not found
2.2. Human rights and the protection of minorities………Error: Reference source not found
2.3. Regional issues and international obligations……….Error: Reference source not found

3. Economic criteria……………………………………………..Error: Reference source not found
3.1. The existence of a functioning market economy…..Error: Reference source not found
3.2. The capacity to cope with competitive pressure and market forces within the Union

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4. Ability to assume the obligations of membership….Error: Reference source not found
4.1. Chapter 1: Free movement of goods……………………Error: Reference source not found
4.2. Chapter 2: Freedom of movement for workers……..Error: Reference source not found
4.3. Chapter 3: Right of establishment and freedom to provide services. . .Error: Reference

source not found

4.4. Chapter 4: Free movement of capital…………………..Error: Reference source not found
4.5. Chapter 5: Public procurement……………………………Error: Reference source not found
4.6. Chapter 6: Company law……………………………………Error: Reference source not found
4.7. Chapter 7: Intellectual property law…………………….Error: Reference source not found
4.8. Chapter 8: Competition policy……………………………Error: Reference source not found
4.9. Chapter 9: Financial services……………………………..Error: Reference source not found
4.10. Chapter 10: Information society and media………….Error: Reference source not found
4.11. Chapter 11: Agriculture……………………………………..Error: Reference source not found
4.12. Chapter 12: Food safety, veterinary and phytosanitary policy.Error: Reference source

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4.13. Chapter 13: Fisheries…………………………………………Error: Reference source not found
4.14. Chapter 14: Transport policy………………………………Error: Reference source not found
4.15. Chapter 15: Energy……………………………………………Error: Reference source not found
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4.16. Chapter 16: Taxation…………………………………………Error: Reference source not found
4.17. Chapter 17: Economic and monetary union………….Error: Reference source not found
4.18. Chapter 18: Statistics…………………………………………Error: Reference source not found
4.19. Chapter 19: Social policy and employment………….Error: Reference source not found
4.20. Chapter 20: Enterprise and industrial policy…………Error: Reference source not found
4.21. Chapter 21: Trans-European networks…………………Error: Reference source not found
4.22. Chapter 22: Regional policy and coordination of structural instruments…………..Error:
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4.23. Chapter 23: Judiciary and fundamental rights……….Error: Reference source not found
4.24. Chapter 24: Justice, freedom and security……………Error: Reference source not found
4.25. Chapter 25: Science and research………………………..Error: Reference source not found
4.26. Chapter 26: Education and culture………………………Error: Reference source not found
4.27. Chapter 27: Environment…………………………………..Error: Reference source not found
4.28. Chapter 28: Consumer and health protection………..Error: Reference source not found
4.29. Chapter 29: Customs Union……………………………….Error: Reference source not found
4.30. Chapter 30: External relations…………………………….Error: Reference source not found
4.31. Chapter 31: Foreign, security and defence policy….Error: Reference source not found
4.32. Chapter 32: Financial control……………………………..Error: Reference source not found
4.33. Chapter 33: Financial and budgetary provisions……Error: Reference source not found
Statistical Annex……………………………………………………………Error: Reference source not found

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COMMISSION STAFF WORKING DOCUMENT
2010 Progress Report

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.

The period covered by this report is from early October 2009 to October 2010. Progress is measured on the basis of decisions taken, legislation adopted and measures implemented. As a rule, legislation or measures which are under preparation 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. In addition, many sources have been used, including contributions from the government of Turkey, the EU Member States, European Parliament reports1, and information from various international and non-governmental organisations.

The Commission draws detailed conclusions regarding Turkey in its separate communication on enlargement2, 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 in force in December 1964. Turkey and the EU formed a customs union in 1995.

1 The rapporteur for Turkey is Mrs. Oomen-Ruijten.
2 Enlargement Strategy and Main Challenges 2010). COM (2010) 660 of 09.11.2010 

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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. Of a total of 33 screening reports, one has still to be delivered by the Commission to the Council whilst nine are being discussed in the Council.

So far, negotiations have been opened on thirteen 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 decision3 remains in force.

The enhanced political dialogue between the EU and Turkey has continued. Political dialogue meetings were held at ministerial level on 26 November 2009 and 13 July 2010. There was one political dialogue meeting at political director level on 10 February 2010. These meetings focused on the main challenges faced by Turkey in terms of the Copenhagen political criteria and reviewed progress being made towards fulfilment of Accession Partnership priorities.

Foreign policy issues related to regional areas of common interest to the EU and Turkey, such as Iraq, Iran, the Middle East and the Caucasus, were also regularly discussed. Economic dialogue took place in a bilateral meeting with the Commission and Turkish senior officials in February 2010. In addition, 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. Moreover, 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 contribute to the enhancement of EU-Turkey bilateral trade, which amounted to €80 billion in 2009. Turkey is the EU’s seventh biggest trading partner while the EU is the biggest trade partner of Turkey. Almost half of Turkey’s total trade is with the EU while more than two thirds of FDI in Turkey come from the EU. However, Turkey maintained and introduced legislation and restrictions that are in violation
of its commitments under the Customs Union. A number of Turkey’s commitments on removing technical barriers to trade such as conformity assessments checks, import and export licensing requirements, restrictions on import 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 tax discriminatory treatment remain unfulfilled. No progress can be reported concerning Turkey’s longstanding ban on imports of live bovine animals, beef meat and other animal products. Turkey needs to fully implement the Customs Union and to remove a large number of obstacles affecting EU products that are in free circulation. The EU urged Turkey to remove all remaining restrictions on the free movement of goods, including restrictions on means of transport regarding Cyprus, and to fully implement the Customs Union.

The EU provides guidance to the authorities on reform priorities through the Accession Partnership, adopted in February 2008. Progress on these reform priorities is encouraged and 3 The decision sets out that negotiations will not be opened on eight chapters relevant to Turkey’s
restrictions regarding the Republic of Cyprus and no chapter will be provisionally closed until the Commission confirms that Turkey has fully implemented the Additional Protocol to the Association Agreement.

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monitored through the bodies set up under the Association Agreement. The Association Committee met on 27 March 2010, the Association Council on 19 May 2010. Eight sector sub-committees have been held since November 2009. As regards financial assistance, some €654 million have been earmarked for Turkey from the Instrument for Pre-accession Assistance (IPA) in 2010. The revised Multi-Annual Indicative Planning Document 2011-2013, which provides the strategic multi-annual framework for all programmes at national level (covering all five IPA components), has been drafted based on input from the Turkish institutions and will be presented to the IPA Management Committee in the beginning of 2011. Support will focus on priority areas such as, fundamental rights and the rule of law, public administration reform, competitiveness, environment, transport, energy, social development and agriculture and rural development. In addition, Turkey is benefiting from support for cross-border cooperation and a series of regional and horizontal programmes under IPA.

EU financial support has been provided to civil society development under the Civil Society Facility, in particular to enhance civil society organisationsｴ capacities. Moreover, technical assistance was provided to the Turkish administration promoting good practices on support of active citizenship. In 2010 funding was also provided to encourage a civil society dialogue between Turkey and the EU in the areas of political criteria and media. In addition, Turkey’s participation in EU programmes and agencies has been co-financed and projects in areas such as media, youth, academic institutions, local authorities, cultural organisations/centres and civil society organisations have been supported. Assistance under IPA is implemented through decentralised management, meaning that assistance is managed by the Turkish authorities as a result of an accreditation process carried out by the Commission that was completed for IPA components I-IV in 2009. In 2010 the main focus has been to start implementation under these components. Turkey needs to strengthen its capacity to absorb funds, achieve results and implement in a timely manner components I-IV. Moreover, preparations for the conferral of management responsibility under the rural development component (V) need to be completed. The supervision by the National Authorising Officer needs to address system weaknesses, including monitoring and control, and further improve the quality and efficiency of the project and programme cycles.

2. POLITICAL CRITERIA

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 The domestic political agenda has been dominated by the constitutional reform package, the government’s democratic opening to address notably the Kurdish issue and the widening investigations into alleged coup plans. A confrontational political climate prevailed, marked by lack of dialogue and spirit of compromise between the main political parties and the government and strained relations between key political institutions.

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Further judicial investigations were opened into alleged coup plans prepared by military officers. In July, a criminal court in Istanbul accepted the indictment against 196 suspects including 19 retired and 28 serving generals and admirals for establishing a structure outside the military hierarchy and attempting to overthrow the government and constitutional order.

The coup plan, referred to as ‘Sledgehammer’, was allegedly prepared in 2003 under the auspices of the First Army. Pending the start of the trial on 16 December 2010 all defendants are free.

The trial against the alleged criminal network Ergenekon is continuing and investigations have been widened. A total of 270 people, including 116 military officers and 6 journalists, were charged with trying to overthrow the government and to instigate armed riots under seven separate indictments. The case concerning the 2006 attack on the Council of State, which left a senior judge dead, was merged with the Ergenekon case. A coup plan, referred to as the ‘cage plan’, dated March 2009, was seized by investigators from Ergenekon suspects.

The ‘cage plan’ allegedly aimed at destabilising the country by killing members of non- Muslim minorities, Former commanders of the air force, navy and army testified in the case and, for the first time, a full general on active duty, the commander of the Third Army, was summoned to testify as a member of the Ergenekon network in Erzincan. The investigation into the coup plan, referred to as the ‘action plan against reactionarism’ begun in 2009 continued.

The time lapse between arrests and the presentation of indictments to the court in these investigations fuelled concerns about effective judicial guarantees for all suspects. The length of pre-trial detention raises concern. In December, the Constitutional Court (CC) ruled unanimously to dissolve the Democratic Society Party (DTP) and to ban 37 members from party politics for five years, including two Members of Parliament who thereby lost their parliamentary seats. The ruling was a serious setback to the government’s efforts at democratic opening. Under Articles 68 and 69 of the 

Constitution and the relevant provisions of the Law on political parties, the party was sentenced as a ‘focus of activities against the indivisible integrity of the State’. Former DTP Members of Parliament joined the new Peace and Democracy Party (BDP) and created a new parliamentary group under the BDP. Overall, the investigation into the alleged criminal network Ergenekon and the probe into several other coup plans remain an opportunity for Turkey to strengthen confidence in the proper functioning of its democratic institutions and the rule of law. However, there are concerns as regards judicial guarantees for all suspects. Turkey still needs to align its legislation as regards procedure and grounds for closure of political parties with European standards.

Constitution

The government put forward a number of amendments to the Constitution which were adopted by parliament in May and approved in a referendum in September with a majority of 58% of the votes and high voter turnout (73%). The key provisions of the package change the composition of the Constitutional Court and of the High Council of Judges and Prosecutors, restrict the authority of military courts, allow appeals against expulsion decisions by the Supreme Military Council to be brought before civilian courts, establish a constitutional base for the Ombudsman service, introduce the right to collective bargaining for public servants and allow positive discrimination measures in favour of women, children and the elderly.

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The government established an action plan on legislation necessary for the implementation of the constitutional amendments, and indicated its intention to consult stakeholders.

Consultations are also ongoing with the Venice Commission of the Council of Europe for those constitutional amendments regarding the judiciary.
However, one of the key provisions originally included in the package, which would have made closure of political parties more difficult, was dropped when it failed to secure sufficient votes in parliament.

The drafting and adoption of the constitutional reforms was not preceded by a consultation process involving political parties and civil society.
The main opposition Republican People’s Party (CHP) lodged a petition before the Constitutional Court to annul the entire package. The Court ruled against the annulment request but amended two provisions relating to the process for appointing members of the Constitutional Court and of the High Council of Judges and Prosecutors. Overall, the constitutional amendments are a step in the right direction. They address a number of priorities of the Accession Partnership in the area of the judiciary, fundamental rights and public administration. However, broad public consultation involving all political parties and civil society, with their full engagement, is needed to strengthen support for constitutional reform. The implementation of the amended constitutional provisions through legislation, in line with European standards, is key.

Parliament

The confrontational political climate between the main political parties continued to slow down work on political reforms. The main opposition CHP party elected a new party leader in May. Apart from the Law amending the Constitution, parliament passed a limited number of laws covering areas related to the Copenhagen political criteria.

In October, an amendment to the Law on the election of parliamentarians was adopted. Accordingly, parliamentary elections will be held every four years instead of every five, in line with an amendment to the Constitution adopted earlier in the year. In March, the Law on elections and electoral rolls was amended to allow use of languages other than Turkish for oral and written publicity material during election campaigns. Further changes to the law aimed at ensuring transparency concerning the income and expenses of political parties and candidates during campaigns. 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.

The scope of parliamentary immunities continues to raise concerns. It is too wide in cases of corruption but at the same time it does not adequately protect the expression of non-violent opinions. The majority of the DTP/BDP Members of Parliament have been taken to court,
based on an interpretation of Article 14 of the Constitution in favour of restriction of immunities when crimes against the ‘integrity of the State’ are concerned (see the chapter on Anti-corruption policy).

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No progress has been made on improving parliament’s rules of procedure. Adoption of the draft finalised in February 2009 by the Consensus Committee on Rules of Procedure is still pending, due to lack of consensus between the political parties. Concerns about the administrative capacity of Turkey’s parliament persist in several fields, including executive-legislative relations and parliamentary oversight and scrutiny. The Turkish Grand National Assembly plays a limited role in the formulation and implementation of Turkey’s accession strategy.

President

The President continued to play an active conciliatory role promoting dialogue between the main political parties and endeavouring to ensure the sound operation of state bodies. However, there were concerns expressed concerning the President’s appointments to certain key State institutions, in particular the judiciary and universities. The President stated his commitment to addressing the Kurdish issues and kept up his active role in foreign policy.

Government

In January, a new strategy for Turkey’s accession to the EU was prepared with the aim of speeding up the accession negotiations and increasing public awareness and support for accession. In this context, on 15 March the Turkish Council of Ministers adopted the 2010- 2011 action plan outlining legislation to be enacted and studies to be carried out on each chapter of the negotiations.

In February, the Reform Monitoring Group (RMG) – made up of the Minister of Foreign Affairs, the State Minister for EU Affairs and Chief Negotiator and the Ministers of Justice and of the Interior – met under the chairmanship of the Prime Minister for the first time since the group was established in 2003, stating the government’s commitment to the EU accession process. The RMG continued to meet regularly in different parts of the country underlining the determination of the government to involve the people more closely in the accession process. Some of the RMG’s recommendations have been put into practice. A sub-committee on political affairs, made up of high-level civil servants, has been established to speed up work
on political reforms. A deputy governor in each province has been designated as the EU contact point. Key reforms relevant to the accession process were included in the package of amendments to the Constitution.

The State Minister for EU Affairs and Chief Negotiator further streamlined inter-ministerial coordination for the accession negotiations. The minister frequently met civil society stakeholders to promote their participation in the accession process. However, further changes to the legislation, in particular as regards protection of fundamental rights, is necessary. The special legislative procedure for EU reforms in parliament has not been adopted, in order to expedite its work related to Turkey’s accession. Regarding local government, a delegation from the Council of Europe Congress of Local Authorities visited Turkey in May to follow up on recommendations made in 2007.

Transparency, accountability and participatory mechanisms need to be strengthened, especially in local government to which further resources and responsibilities have been
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transferred. Strategic plans, performance measures, establishing financial control systems, project management, crisis management, environmental management and information technology management remain to be established at local level. Overall, after a significant slowdown in the reform agenda over the last few years, the government put forward a number of key constitutional reforms and specific measures, albeit of limited scope. The strained relations between key state bodies are continuing to have a negative impact on the smooth functioning of political institutions.

Public administration

An inventory of public services was carried out by the government. Specific public service standards for procedures, quality, eligibility criteria and complaints were developed. Work on providing basic public services on-line (e-government) has continued with a view to improving their quality and to increasing transparency and accountability.
The constitutional reform provides the basis for establishment of an Ombudsman institution. The amendments to the Constitution introduced protection of personal data and access to information as constitutional rights. However, no progress has been made on reforming the civil service system, in particular to reduce red tape, to develop regulatory impact assessments (RIA) and to ensure transparency and merit-based advancement and appointments, particularly to high-level positions. Also, there is a lack of consultation by civil service of relevant stakeholders in the preparation of policies and legislation. Enforcement of common standards and uniform implementation of the rules across the civil service remain to be achieved. With regard to implementation of the public financial management and control (PFMC) law, an effective internal audit system, in the form of autonomous units within all State
institutions, is not yet operational. Clear rules for establishing a business company or a corporation to deliver public services by municipalities remain to be introduced. Such rules will reduce opportunities for partisan
employment and public funding without effective control. Overall, some progress has been made, in particular towards establishing an Ombudsman institution, protection of personal data and access to information. Further efforts are needed, in particular on reforming the civil service and implementing the PFMC law. Increased
political support to the public administration reform is necessary.

Civilian oversight of security forces
In February, the government annulled the secret protocol on Security, Public Order and Assistance Units (commonly called EMASYA), which allowed military operations to be carried out without the consent of civilian authorities. Implementation of the annulment decision remains to be completed.

In February, parliament adopted a law establishing an Under-secretariat for Public Order and Security under the Ministry of the Interior to develop policies on counter-terrorism and to serve as secretariat for the Counter-Terrorism Coordination Board. The law also established 
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an Intelligence Assessment Centre to strengthen intelligence-sharing between security institutions. The constitutional reform limits the jurisdiction of military courts to ‘military service and military duties’. Under the new system, crimes against state security, the constitutional order and the functioning of this order will be dealt with by civilian courts.

The amendments to the Constitution opened dismissals of military staff by the Supreme Military Council to judicial review. The constitutional provision providing immunity for the perpetrators of the 1980 coup d’騁at was deleted from the Constitution. In addition, the Chief of General Staff and the commanders of the army, air force, navy and gendarmerie will be tried before a high tribunal for any offences committed in the course of their official duties.
Progress has been made as regards internal audits, introduced by the public financial management and control law, in security institutions following the adoption of a regulation on the internal audit and management of movable properties of the armed forces, the national intelligence agency and the national policy, in July. The Court of Auditors has launched the planning phase for auditing the extra-budgetary Defence Industry Support Fund (SSDF). 

The case against two non-commissioned officers and an informant from the terrorist grop PKK concerning the bombing of a bookstore in Semdinli4 is still pending. The case is with a criminal court in Hakkari further to the decision of the Van military court that the defendants should be charged for homicide and that there is no evidence to prove that they committed the offence of “Impairing the unity of the state” regulated in article 302 of the Turkish criminal code. The military court set the accused free pending trial.

Implementation of the regulation on the powers of the police and the gendarmerie in urban and rural areas has continued. Residential areas in 31 towns with a combined population of about one million civilians were transferred from the Gendarmerie to the police, which is under civilian control. However, there has been no progress on civilian control over the gendarmerie’s law enforcement activities.

The trial of a serving gendarmerie colonel who was allegedly involved in extra-judicial killings in the south-east in the 1990s continued. The proper conduct of this trial is critical for the fight against impunity.

There is a decrease in the number of incidents where the armed forces exerted formal and informal influence on political issues beyond their remit. Nonetheless, on some occasions, the Chief of General Staff made comments about ongoing court cases and investigations. A number of criminal complaints were lodged by citizens and NGOs about such statements.

However, there was no judicial follow-up. The selective accreditation by the military of certain media has continued. No change has been made to the Turkish Armed Forces Internal Service Law, which defines the duties of the military and contains an article leaving the military wide room for manoeuvre to intervene into politics. The Law on the National Security Council provides a broad definition of ‘security’, which, depending on interpretation, could cover almost any policy field.

4 The defendants are accused of the November 2005 bombing that killed one person and injured others in the town of Semdinli in Southeast Turkey.

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No progress has been made concerning parliamentary oversight of the defence budget or on audit of the properties of the armed forces by the Court of Auditors. The Law on the Court of Auditors was adopted by the Planning and Budget Committee in May and is awaiting approval by the plenary. Overall, progress has been made on civilian oversight of security forces. The jurisdiction of military courts was limited, the decisions of the Supreme Military Council were opened to judicial review and arrangements were made for high-ranking officers to be tried by civilian
courts. However, senior members of the armed forces have made a number of statements going beyond their remit, in particular on judicial issues. No progress was made on parliamentary oversight over extra-budgetary military funds.

Judicial system

Progress has been made on reforming the judiciary. Implementation of the 2009 judicial reform strategy has continued. Some of the central pillars of the strategy were put in place by the amendments to the Constitution.
As regards the independence of the judiciary, the constitutional amendments increased the number of full members of the High Council of Judges and Prosecutors from seven to twentytwo. In addition to representatives of the Court of Cassation and the Council of State, the new members include representatives of first instance judges, the Justice Academy, law faculties and lawyers. This new membership lays the foundation for making the High Council
representative of the judiciary as a whole.

The amendments to the Constitution open to judicial review decisions by the High Council dismissing members of the judiciary from the profession. This is a move in the direction of establishing an effective remedy against decisions by the High Council. A Secretariat-General established under the High Council provides it with professional and secretarial support.

Previously, professional and secretarial support for the High Council was provided by the Ministry of Justice. The High Council appoints judges and prosecutors to this Secretariat. This should reduce the opportunities for the executive to interfere with administration of the Council. 

Judicial inspectors responsible for evaluating the performance of judges and prosecutors  henceforth will report to the High Council and no longer to the Ministry of Justice, thus giving the High Council a basis for carrying out its work without the risk of political interference. However, the minister is still President of the High Council and the investigative authority of the High Council is subject to his approval5.

The Semdinli case is still pending. (See the chapter on Civilian oversight of security forces) The dismissal of the civilian prosecutor previously in charge of the case, together with the handling of the case to date, has raised questions about the independence of the High Council6.

5 The draft Law on the High Council of Judges and Prosecutors proposed by the Ministry of Justice provides that these decisions of the Minister are subject to judicial review. 
6 The civilian prosecutor in this case published the indictment in 2006. It included accusations against high-ranking military commanders. The General Staff criticised the indictment and urged those bearing constitutional responsibility to take action. The High Council of Judges and Prosecutors took the dismissal decision in April 2006. 

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With regard to impartiality, constitutional provisions allowing military courts to try civilians have been taken out of the Constitution and new provisions explicitly prohibit such trials. Cases related to offences against the security of the state, the constitutional order and the functioning of this order are to be tried before civilian courts. This followed the annulment by the Constitutional Court, in January 2010, of provisions of the Criminal Procedure Code
allowing civilian courts to try members of the armed forces in cases of organised crime and crimes against the state, on the basis that these conflicted with the constitutional provisions at the time. The new provisions for trial of such cases by civilian courts are positive. Since the adoption of the amendments to the Constitution, the Constitutional Court will be made up of seventeen members. Ten will be nominated by the President amongst the
candidates nominated by the Court of Cassation, the Council of State, the Military Supreme Administrative Court, the Military Court of Cassation and the High Education Board, and four will be elected directly by the President from among senior administrators, lawyers and rapporteur judges of the Constitutional Court. The Parliament elects three members of the Constitutional Court from amongst the candidates proposed by the Court of Auditors and the
Bar Associations. There are three voting rounds in Parliament. In the third voting round the candidates are elected by simple majority. No alternate members are envisaged. The involvement of the Turkish parliament in the election of Constitutional Court judges brings Turkish practice closer to that of EU Member States. However, two of the judges are still military judges. As constitutional jurisprudence in a democratic system is a civilian matter, the presence of military judges is questionable. In addition, the amended Constitution provides that judges should be at least forty-five years of age when elected for a nonrenewable term of twelve years. This implies that military judges might return to the military justice system when their term in the Constitutional Court expires, which could raise
questions about their impartiality as Constitutional Court judges.

Senior members of the judiciary and of the military have made statements that could put the impartiality of the judiciary at risk in important cases. With regard to the efficiency of the judiciary, use of information technology in the judicial system has accelerated judicial procedures and facilitated third party access to judicial proceedings. The number of judicial staff continued to increase. On 20 September 2010 there were a total of 11,394 judges and prosecutors (11,121 judges and prosecutors on 1 May 2009). Progress has been made as regards juvenile justice. (See the chapter on Children’s rights)

However, the overall number of vacancies for judges and prosecutors remains significant at 3,299 on 20 September 2010 (3,875 on 1 May 2009). The regional courts of appeal are not operational yet. By law, they should have been in operation by June 2007. The regional courts of appeal have not been established yet. By law, they should have been in operation by June 2007.

The arrest of the Chief Public Prosecutor of Erzincan on the grounds of involvement in alleged organised crime led the High Council of Judges and Prosecutors to revoke the powers of the specially authorised public prosecutor who ordered the arrest. Senior members of the judiciary made public statements in support of this decision by the High Council. This situation created tensions, both within the judiciary and between the High Council and the ministry, and raised questions about the ability of the judiciary to conduct a fair trial.

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Investigations in some high-profile cases continued to raise concerns. This points to the need to improve the work of the police and the gendarmerie but, also, the working relationship between the police and the gendarmerie on the one hand and the judiciary on the other. The ECtHR in its Chamber judgement of 14 September 2010 on the case of Dink v. Turkey7 considered that the Turkish authorities had not done everything that could reasonably have
been expected of them to prevent Mr Dink’s assassination and that no effective investigation had been carried out into the failures which occurred in protecting the life of Mr Dink. There had therefore been a violation of Article 2 (right to life). In addition, the Court found a violation of Articles 10 (freedom of expression), and 13 (right to an effective remedy) in conjunction with Article 2. Turkey indicated that it will not appeal the Chamber’s judgement.
There has been no progress on introduction of a mediation system into civil justice.

Reconciliation, introduced into the criminal justice system in 2005, is not used effectively. Provision of legal aid is inadequate in terms of either its coverage or the quality of services provided. The implementation of pre-trial detention is not limited to circumstances where it is strictly necessary in the public interest. This adds to the overcrowding in prisons, where more than half of the inmates await trial. Judges do not make effective use of the probation system. There are concerns about the functioning of the Forensic Medicine Institute. In a number of
cases the institute gave conflicting reports on the same case at different times. The backlog of the institute leads to delays in judicial proceedings.

A Council of State judgment in 2009 pointed to the overlapping responsibilities for provision of in-service training between the Training Department of the Ministry of Justice and the Turkish Justice Academy. Pre-service and in-service training both fall under the responsibility of the Justice Academy.

Overall, there has been progress in the area of the judiciary. The adoption of the amendments to the Constitution on the composition of the High Council of Judges and Prosecutors as well as the limitation of the authority of military courts is a positive step. However, the Minister of Justice still chairs the High Council and has the last word on investigations. Attention needs to be paid to establishing an effective dialogue with all stakeholders and to implementing these reforms in accordance with European standards and in an open, transparent and inclusive way.

Anti-corruption policy

The government adopted a 2010-2014 strategy for enhancing transparency and strengthening the fight against corruption in February 2010. A ministerial committee8 was established in December 2009 together with an executive board made up of representatives of public institutions, labour unions and the Turkish Union of Chambers and Stock Exchanges (TOBB) to form further anti-corruption strategies and to direct and monitor their implementation. The strategy aims at developing preventive and repressive measures against corruption and
improving public governance by introducing more transparency, accountability and reliability in the public administration.

An action plan setting the timetables for adoption and implementation of each measure was approved by the ministerial committee in April 2010. Effective implementation could 7 Applications no. 2668/07, 6102/08, 30079/08, 7072/09 and 7124/09.

8 The ministerial committee consists of the Deputy Prime Minister and four ministers (Ministry of Justice, Ministry of Interior, Ministry of Finance, Ministry of Labour and Social Security).

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contribute to changing behaviour of public administration, so that it promotes and protects integrity and reduces opportunities for corrupt practices. However, participation by civil society and its role on the executive board and in implementation of the strategy need to be strengthened.

By June 2010, Turkey had implemented 15 of the 21 recommendations in the 2005 evaluation reports by the Group of States against Corruption (GRECO). The GRECO report suggests further efforts, in particular to broaden the representation of the anti-corruption oversight body, to enhance the independence of the judiciary and, to reform the system of immunities and to finally establish the Ombudsman institution. The constitutional amendments provide the basis for progress on enhancing the independence of the judiciary and an Ombudsman institution.

In December 2009, the Prime Ministerial Inspection Board was appointed as the counterpart of the European Anti-Fraud Office (OLAF) and was given the task of Anti-Fraud Coordination Structure (AFCOS) responsible for investigation of irregularities in the context of financial cooperation between the EU and Turkey. (See Chapter 32 – Financial control) In February 2010, the Constitutional Court annulled the provisions of the Law on the Council
of Ethics regarding publication of the names of civil servants who violate the code of ethics, on the grounds that publishing names without a judicial decision would jeopardise the presumption of innocence. Ethics training has continued and around 7,000 civil servants working for central and local governments have been trained between October 2009 and September 2010. In September, the Government adopted a regulation on the code of ethics
with which investigators and auditors should comply while doing their jobs. However, no progress has been made on extending ethics rules to academics, military personnel and the judiciary.

No progress has been made on limiting the immunities of Members of Parliament concerning corruption-related offences. Further measures are needed to complete the existing legislation and ensure its effective implementation to increase transparency on the financing of political parties and election campaigns. More resources are also required in order to better detect illegal practice, in particular to extend the current monitoring mechanism to election campaign funding of parties and candidates. For the first time, a mayor of a metropolitan municipality (Adana) was suspended from mayoral duties on March 2010 by the Ministry of Interior because of serious corruption allegations. Administrative and judicial investigations are continuing.

The investigation begun in 2009 into the charity association Deniz Feneri concerning a fraud case in Germany is continuing. The police made searches on the premises of the association and at the homes of the suspects. However, no indictment has been submitted to court yet. The draft law on the Turkish Court of Auditors, which envisages strengthening the Court and extending its mandate, was adopted by the Planning and Budget Committee of the Parliament in May and is awaiting approval by the plenary. (See Chapter 23 – Judiciary and fundamental
rights)

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Overall, progress has been made as regards the development of a comprehensive anticorruption strategy and action plan and of a body to oversee and monitor its implementation, thus addressing Accession Partnership priorities. However, effective implementation of the strategy is necessary to reduce corruption which remains prevalent in many areas. Turkey needs to develop a track record of investigations, indictments, and convictions.

2.2. Human rights and the protection of minorities
Observance of international human rights law As for ratification of human rights instruments, ratification of the Optional Protocol to the UN Convention against Torture (OPCAT) is still pending before parliament. Turkey has not
ratified three additional Protocols to the European Convention on Human Rights (ECHR)9.

The number of rulings of the European Court of Human Rights (ECtHR) finding that Turkey has violated the ECHR continued to increase. During the reporting period the court delivered a total of 553 judgements finding that Turkey had violated the ECHR. The number of new applications to the ECtHR went up for the fourth consecutive year. Since October 2009, a total of 5,728 new applications were made to the ECtHR. The majority of them concern the right to a fair trial and protection of property rights. As of September 2010, 16,093 cases were pending before the ECtHR regarding Turkey. The amendment to the Constitution introducing the right to submit individual applications to the Constitutional Court is an important step to reduce the number of applications to the ECtHR.

Turkey has abided by the majority of ECtHR rulings, including payment of compensation totalling €6.1 million in 2009. Amendments to the Law on enforcement of judgments address shortcomings in the judicial process that were identified in several ECtHR rulings against Turkey. However, some rulings have not been followed up by Turkey for several years10. The government’s announcement that it would address these issues was not followed by action.
In the Cyprus v. Turkey case, the issue of missing persons and restrictions on the property rights of Greek Cypriots living permanently in the northern part of Cyprus remains pending.

At a meeting in September 2010, the Committee of Ministers decided to postpone examination of these issues until December 2010. In its Grand Chamber Decision of 5 March 2010 on the Demopoulos v. Turkey case the ECtHR concluded that, for the purposes of the ECHR, remedies available may be regarded as effective and accessible domestic remedies which have to be exhausted before applications before the ECtHR can be found admissible.

However, the court stressed that this decision was not to be interpreted as requiring applicants to make use of the Immovable Property Commission procedure. Applicants could choose not to do so and await a political solution. Since March the number of applications to the Immovable Property Commission has increased substantially.

Regarding promotion and enforcement of human rights, the government plans the establishment of several human rights institutions. In particular, the draft law on the establishment of the Turkish Independent Human Rights Institution was submitted to 9 Protocols 4, 7 and 12.

10 The non-implementation of the Hulki G・eþ, Gmen and Slemez judgments has resulted in deprivation of liberty for the defendants for several years without due process of law. A legislative amendment is required to remedy this situation. Furthermore, Turkey has not adopted legal measures to prevent repetitive prosecution and conviction of conscientious objectors. Other issues awaiting legislative measures by Turkey concern control of the activities of security forces, effective remedies against abuse, restrictions on freedom of expression and excessive length of pre-trial detention.

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parliament in February 2010. Opinions from NGOs were discussed by the relevant parliamentary sub-committee. The draft law before parliament needs to be amended to bring it into line with the UN framework, in particular as regards the independence and functional autonomy of this new institution. It is important to conduct this process in close consultation with NGOs.

The constitutional reform provides the basis for establishment of an Ombudsman institution. Human rights training for public officials, judges, public prosecutors and police officers continued. In-service and on-the-job training for the gendarmerie includes training on human rights together with specialist training on techniques for reviewing allegations of human rights violations.

The Human Rights Investigation Committee of the Parliament published 13 reports. However, the Committee has been focussing on policy making and the legislative process. Human rights defenders have continued to face criminal proceedings. Investigations carried out as part of the fight against terrorism have raised concerns following the arrests of trade union and human rights activists. The wide definition of terrorism under the Anti-Terror Law
remains a cause for concern (See the chapter on the Situation in the south-east).

Human rights institutions lack resources, independence and impact. Overall, some progress was made on observance of international human rights law. However, a number of reforms have been outstanding for several years. Legislation on human rights’ institutions needs to be brought fully in 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. This policy has continued to produce positive results. Training for health personnel, judges and prosecutors on effective investigation and documentation of torture and ill-treatment cases continued with a view to implementation of the Istanbul

Protocol11 in Turkey.

The draft Law on the Establishment of a Monitoring Commission on Security Forces was submitted to the Parliament in October. The draft foresees the establishment of a Supervisory Commission for the registration and monitoring of disciplinary procedures and measures against law enforcement officers. However, disproportionate use of force by law enforcement bodies continued. Reports to NGOs of disproportionate use of firearms by security forces resulting in death have increased. Ratification of OPCAT has been pending since 2005. (See the chapter on Observance of international human rights law) Law enforcement bodies frequently launch cases against persons who allege torture or illtreatment. Such legal proceedings may deter complaints. In many instances these cases are given priority by Turkish courts.

11 Istanbul Protocol: Manual on the effective investigation and documentation of torture and other cruel, inhuman or degrading treatment or punishment, submitted to the United Nations Commissioner for Human Rights, 9 August 1999.

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No forensic doctors are recognised by courts, apart from the Forensic Medicine Council, which is under the Ministry of Justice. Law enforcement officers are sometimes present during medical examination of prisoners.

As regards the fight against impunity, the case concerning the death in detention of Engin ﾇeber12 was brought to conclusion in June 2010. The court sentenced three prison guards and the deputy director of the prison to life in prison for murder. Two police officers received 7.5 year prison sentences and one police officer received 2.5 year in prison. This is the first verdict where a court has convicted a senior prison official. However, the efforts to fight
impunity for human rights violations have not sufficiently addressed the backlog of judicial proceedings. The ECtHR found that the criminal proceedings were still not finalised as regards members of the security forces who took part in an operation at Diyarbakir prison on 24 September 1996, which had led to the death of eight prisoners and injured six. The ECtHR condemned Turkey, on several accounts including the lack of an effective investigation into
this case (article 3 of the ECHR). In 2009 the Human Rights Committee of the TGNA found that very few lawsuits filed against police officers for ill-treatment or torture resulted in a conviction13. Administrative investigations into allegations of torture or ill-treatment are still carried out by fellow police officers. Overall, the positive trend on prevention of torture and ill-treatment continued. Some highprofile cases of human rights violations have resulted in convictions. However, disproportionate use of force by law enforcement authorities continued and is of concern. The efforts to fight impunity for human rights violations have not sufficiently addressed the backlog of judicial proceedings. There has been some improvement in access to justice in rural areas. However, access to free
legal aid was limited, especially in the south-east. The Istanbul bar boycotted the legal aid scheme from June 2009 to March 2010 and no legal counsel was appointed during that period at Istanbul courts. There is evidence that a large number of prison inmates have never received any legal aid or knew that they could benefit from the services of a legal counsel had they requested one. There is no monitoring of implementation of the relevant legislation in
terms of either its coverage or the quality of services provided by legal aid lawyers. Hence, there is no assessment of whether the funds available and fees charged are adequate. In addition, there is no body, either independent or within the government, responsible for monitoring this issue.

Overall, little progress has been made. Provision of legal aid is inadequate in terms of either its coverage or the quality of services provided. There is no effective monitoring mechanism that would ensure that problems are addressed. The prison reform programme continued. The four training centres organised courses for 8249 prison staff in 2009 and an additional 4929 staff have been appointed. 

12 Engin ﾇeber was arrested for distributing a legal journal on 28 September 2008. ﾇeber died as a result of injuries sustained during torture in a police station in Istanbul and Metris prison on 10 October 2008. 

13 The Human Rights Investigation Committee noted that none of the 35 lawsuits filed against 431 members of the Istanbul police for ill-treatment or torture resulted in a conviction. The committee concluded that this gives rise to suspicions about the effectiveness of proceedings initiated against law enforcement agents. According to the same report, only 2% of police officers accused of ill-treatment or torture are subject to disciplinary sanctions as a result of an administrative investigation into allegations of torture or ill-treatment. The committee concluded that such investigations should not be carried out by fellow police officers.

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Use of languages other than Turkish in prisons was extended. If the prisoner or his visitor does not know Turkish, use of another language is allowed. The Law on enforcement courts strengthens defendant’s rights in case of the application of disciplinary sanctions against prisoners.

The Ministry of Justice is developing a case management model to be brought into operation for juveniles first and then extended to all prisons. This improves rehabilitation services. Architectural changes to some high-security prisons enabled more communal activities to be carried out. The Ministry of Justice has started to build juvenile prisons. However, the high proportion of prisoners in pre-trial detention is still a significant problem. Close to half of those imprisoned in Turkey are either awaiting trial or awaiting a final verdict on their cases14. The situation is even more worrying as regards juveniles in penitentiaries. Only 12% are serving prison sentences, the rest are awaiting trial. The number of juvenile reformatories is insufficient. Children are not fully separated from adults in all prisons. This is especially the case with girls, who are usually imprisoned with women.

The inadequate resources of prisons continue to raise concerns. The rapid increase in the number of inmates, which has doubled in a few years, led to a growing overcrowding problem. The number of prison staff and their qualifications are still inadequate. There are 7981 vacancies.

The standards of monitoring of national prisons have not been improved to UN standards. The inadequate health services for prisoners remain a concern. The protocol signed between the Ministries of Justice and Health in April 2009 transferring responsibility for health care services in prisons to the Ministry of Health has had limited impact. The number of permanent physicians is insufficient.

Overall, the implementation of the prison reform programme continues. However, the high proportion of prisoners in pre-trial detention remains one of the most significant problems. Health services in prisons need to be improved.
As regards freedom of expression, an increasingly open and free debate continued on a wide scale in the media and public on topics perceived as sensitive, such as the Kurdish issue, minority rights, the Armenian issue and the role of the military. There are few cases initiated on the basis of Article 301 of the Turkish Criminal Code (TCC),
after it was amended in May 200815. However, a high number of violations of freedom of expression by Turkey are still being submitted to the ECtHR.
14 Currently there are 119,145 people in prisons in Turkey, 56.557of whom have not yet been sentenced,
according to Ministry of Justice statistics.

15 According to the Ministry of Justice, since the amendment to Article 301 of the Turkish Penal Code, a decrease in the number of cases opened has been observed. The figures below cover examinations concluded between 1 January 2010 and 31 July 2010: 369 files examined, 270 files for which permission was denied, 10 files for which permission was granted, 3.57% files for which permission was granted

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Defamation is a criminal offence under Turkish law. Article 125 of the TCC provides that defamation is punishable by either a prison sentence or a fine. There are many ongoing cases and convictions under this provision. Insults against the Turkish nation are still criminalised under Article 301 of the TCC. Other provisions of the TCC16, the Anti-Terror Law and the Press Law are also used to restrict freedom of expression.

The high number of cases initiated against journalists who have reported on the Ergenekon case is a cause for concern17. They face prosecutions and trials for violating the principle of confidentiality of an ongoing judicial process. This could result in self-censorship.

Pressure on newspapers discussing the Kurdish question or publishing in Kurdish increased. In the course of the year, publication of the Azadiya Welat newspaper in Diyarbakýr was banned several times and its journalists were sentenced in prison under terrorism propaganda charges. In its ruling on the Ürper and others v. Turkey case, the ECtHR ruled that Turkey should revise Article 6(5) of the Anti-Terror Law.

The review carried out by the Ministry of Justice on the legal framework on freedom of expression was not finalised. Regarding hate speech, the Council of Europe18 recommended Turkey to encourage the media to develop a code of ethics on respect for religious minorities and to prosecute incitement to hatred passed on by the media.
In October, the Court of Cassation ruled that Nobel Prize winner Orhan Pamuk can be sued for remarks made in 2005, when he was quoted in a Swiss magazine commenting on the Kurdish and Armenian issues.

The interpretation of certain articles of the broadcasting law and the sanctions imposed on broadcasters raised concerns (See Chapter 10 – Information society and media). There are frequent website bans, which are disproportionate in scope and duration. Youtube was officially inaccessible in Turkey from May 2008 to November 2010, after publication of videos which allegedly violated the Law on crimes against Atat・k. Other court cases are still ongoing against the video sharing website and other mainstream web portals have been banned for several years. Law nｰ5651 on the Internet limits freedom of expression and restricts citizens’ right to access information.
As regards freedom of the press, concerns remain as regards political attacks against the press. The court case on the tax fine ordered in 2009 against Dogan Media Group, critical of the government, continues. The press exercises self restraint when reporting following the initiation of this case.