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The Rule of Law and Human Rights in Turkey

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The Rule of Law and Human Rights in Turkey Human Rights and the Rule of Law in Turkey A Scoping Report British Institute of International and Comparative Law December 2015 Human Rights and the Rule of Law in Turkey – A Scoping Report Executive Summary This Scoping Report on Human Rights and the Rule of Law in Turkey has been produced by the British Institute of International and Comparative Law (BIICL), the foremost independent research and discussion body in the United Kingdom. BIICL is unaffiliated to any university, and is one of the leading such bodies in the world. It undertakes high quality research, publications, events and training on issues of international and comparative law around the globe. The content of this Scoping Report covers the current human rights and rule of law situation in Turkey. It first sets the scene by providing a contextual background, which includes some of the major constitutional and political developments since the establishment of the republic. Key domestic facts are also part of this introductory section of the Report, including demographic information, education and literacy, economy, minority groups, domestic security and foreign relations. It also entails some information regarding what is known as the Hizmet (or Cemaat) movement. The second section of the report focuses on the government structure. It presents the executive power with the role of the President and the Council of Ministers before discussing their relationship with the military. The legislature and the current position of the ruling political party are then explained. This section ends with a presentation of the judiciary, including its structure and key institutions, the way judges are appointed, as well as judicial remedies and judicial review. The third section considers the application of the rule of law to the Turkish context. In doing so, it consider six key rule of law principles: accessible laws and legislative process; non-discrimination and equality before the laws; prohibition of arbitrariness; access to justice before independent and impartial justice system; human rights within the rule of law; and compliance with international obligations. The fourth section is dedicated to the current human rights situation in Turkey. It first considers how human rights are protected under the Turkish domestic legal system, including its constitutional framework and other relevant norms, such as criminal law provisions. It also considers the possible limitations and derogations to human rights’ obligations under the domestic system. The applicable international legal framework is then explained, presenting the relevant case law before the regional and international human rights system, i.e. the European Court of Human Rights and the United Nations Treaty Bodies. The Scoping Report concludes by highlighting some of the key outstanding human rights concerns in Turkey, especially with regard to violations of the right to freedom of expression and freedom of assembly, violations of the right to life and the prohibition of torture and ill-treatment, violations of the prohibition of discrimination and minority rights. The report also supports a number of international recommendations, as well as provide additional suggestions in order for the rule of law to be upheld in Turkey and for human rights to be further respected, protected and fulfilled by Turkey in future. 2 Human Rights and the Rule of Law in Turkey – A Scoping Report Research Team The BIICL research team which produced this Scoping Report consisted of Kristin Hausler, Alice Lam, Elif Mendos Kuşkonmaz, and Nikolaos Pavlopoulos. Internal reviews were conducted by Professor Robert McCorquodale and Dr Lawrence McNamara. 3 Human Rights and the Rule of Law in Turkey – A Scoping Report Contents Executive Summary ............................................................................................... 2 Research Team ..................................................................................................... 3 1. INTRODUCTION: CONTEXTUAL BACKGROUND ............................................... 6 1.1. Key Constitutional and Political Developments ............................................. 6 1.2. Key Domestic Facts ...................................................................................... 11 Demography ................................................................................................... 11 Education and Literacy ..................................................................................... 11 Economy ......................................................................................................... 12 Minority Groups .............................................................................................. 13 Domestic Security ............................................................................................ 14 Foreign Relations ............................................................................................. 17 The Gülen / Hizmet Movement ........................................................................ 19 2. GOVERNMENT STRUCTURE .............................................................................. 23 2.1. Executive ..................................................................................................... 23 The President and the Council of Ministers ....................................................... 23 Relationship between the Executive and the Military .......................................... 24 2.2. Legislature .................................................................................................. 25 The Rule of the AKP ......................................................................................... 25 2.3. Judiciary ..................................................................................................... 29 Structure and Key Institutions ........................................................................... 30 Appointment of Judges .................................................................................... 31 Judicial Remedies ............................................................................................ 34 Judicial Review ................................................................................................ 39 3. THE RULE OF LAW IN TURKEY ........................................................................... 40 3.1. Accessible Laws and Legislative Process ........................................................ 40 Law Making Process ........................................................................................ 41 Legislation ....................................................................................................... 42 Court Judgments ............................................................................................. 42 3.2. Non-discrimination and Equality before the Laws ......................................... 42 Prohibition of Discrimination on the Basis of Disability ...................................... 43 Prohibition of Discrimination on the Basis of Sexual Orientation or Gender Identity ....................................................................................................................... 44 Prohibition of Discrimination against Minorities ................................................ 45 Prohibition of Discrimination under Criminal Law ............................................. 46 Exemptions and Immunities before the Law ...................................................... 47 Systematic Enforcement of the Law ................................................................... 47 4 Human Rights and the Rule of Law in Turkey – A Scoping Report 3.3. Prohibition of Arbitrariness ........................................................................... 47 Government Accountability .............................................................................. 48 Anticorruption Legislation and Policy ................................................................ 51 Investigations into Bribery ................................................................................ 53 Civil Society Participation in the Exercise of Power ............................................. 54 Electoral Process .............................................................................................. 55 3.4. Access to Justice before an Independent and Impartial Justice System ........... 57 Independent Justice System .............................................................................. 57 Impartial Justice System ................................................................................... 59 Accessible Justice System ................................................................................. 61 Individual Access to the Constitutional Court .................................................... 61 Criminal Justice System ................................................................................... 63 Judicial Reforms .............................................................................................. 64 3.5. Human Rights within the Rule of Law ............................................................ 66 National Human Rights Institution .................................................................... 66 3.6. Compliance with International Obligations ................................................... 69 4. HUMAN RIGHTS IN TURKEY .............................................................................. 74 4.1. Domestic Human
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