Harmonization packages 2002 – 2004

4.3 Harmonization packages 2002 – 2004

We have to note that the decision of the Copenhagen Council in December 2002 to open negotiations with Turkey if the Commission recommends it, did not slowdown the reform process, on contrary fostered the feeling of a real possibility of full EU membership, thus strengthened the credibility of EU conditionality.⁵⁵ Afterwards we can observe process of adopting the changes aiming to improve the most criticized aspects of Turkish democracy.

In the two packages adopted in January 2003 the fight against torture was considerably strengthened. Articles regulating torture and ill-treatment of the Penal Code have been amended under the fourth reform package so as to prevent sentences for torture and ill-treatment from being suspended or converted into fines. The freedom of expression further expanded (this has led to both acquittals and the release of a number of prisoners sentenced for the non-violent expression of opinion). Procedures for setting up associations eased and the restrictions applying in the acquisition of property by non-Muslim community foundations abolished. Retrial of cases on the basis of the decisions taken by the European Court of Human Rights was also made possible (Turkey progress report 2003: 29).

The reform package that entered into force in July 2003 was particularly important mainly because it lifted the Article 8 of the Anti-Terror Law. This reform was crucial, as it was a very broad clause that was most commonly referred to in prosecutions. The article regulates ‘propaganda against the indivisible unity of the state’. The reforms strengthens the previous year’s amendment which introduced the notion of ‘propaganda in connection with the (terrorist) organization in a way that encourages the use of terrorist methods’, by replacing ‘terrorist methods’ with ‘resorting to violence or other terrorist means’. With the reform the length of prison sentences remained at one to five years, as was decided in 2002.

Furthermore, this package included expansion of the freedom of speech, abolition of the death penalty and expansion of broadcasting rights in languages and dialects traditionally used by Turkish citizens.⁵⁶ This is particularly relevant in context of minorities, especially Kurdish minority.⁵⁷ The Kurds make up the most numerous minority in Turkey, but the demands for the recognition of identity were perceived as threats to the territorial integrity of the state and met with hostility by the traditional establishment, especially after the 1980 coup.⁵⁸ In an attempt to foster social peace in the region, parliament adopted a law on ‘social reinsertion’ in August 2003. The law provides of a partial amnesty and reduction in sentences for persons involved in the activities of an illegal organization, namely the PKK.⁵⁹ The law excludes the leaders of the organization as well as those who have committed crimes (Aydın and Keyman 2004: 35).

In the next package, adopted in August 2003 strengthening of the civilian control of the military, exercising of fundamental freedoms and the additional measures to fight against torture were emphasized (Derviş et al. 2004: 19). The article concerning aiding and abetting terrorist organizations was changed as well, by narrowing its scope.⁶⁰ Another important step was taken by approving changes in Article 159 of the Penal Code (insulting the state and state institutions and threats to the indivisible unity of the Turkish Republic). The minimum sentence has been reduced from one year to six months. The amendment confirms the August 2002 revision to the Article, which exempted from punishment the expression of opinions intended only to criticize, and not intended to ‘insult’ and ‘deride’ these institutions (Turkey progress report 2003: 30).

Also the Law on Associations went through considerable changes. The amendment enabled associations to use any language in their non-official correspondence and allowing legal entities (in addition to individuals) to become members of associations. Restrictions on making announcements or distributing publications have been eased. The obligation to forward copies of the documents to the relevant authorities prior to distribution, including to the public prosecutor, has been removed. The restrictions on the activities abroad of associations established in Turkey and the activities in Turkey of foreign associations were eased. Restrictions on the activities of foreign associations in Turkey were further eased by a shift in the permission procedure from the Council of Ministers to the Ministry of Interior. Restrictions on international cooperation between associations were also eased and extended to cover non-profit organizations (Aydın and Keyman 2004: 30).

As the government has committed itself to a zero tolerance concerning torture and ill-treatment, the legislation in the area of fight against torture and ill-treatment has been considerably strengthened in the reforms of 2003. All detained persons, regardless of their suspected offence, now have the formal right of access to a lawyer from the outset of their custody. Amendments were made to prevent sentences for torture and ill-treatment from being suspended or converted into fines. Access to a lawyer and health checks are now guaranteed when detainees are taken out of prisons for interrogation. The decision of a judge, who must see the detainee in question, is required before permission is granted to take individuals fro prisons or detention houses. The investigation and prosecution of torture cases were classified as ‘urgent matters’. In order to reduce the risk of impunity, hearings can be conducted during a judicial recess and cannot be adjourned for more than 30 days, unless there are compelling reasons to do so (Aydın and Keyman 2004: 24).

Concerning the religious minorities in Turkey, the main problems occurring have been the lack of a legal personality of their institutions and the impossibility of acquiring or selling property. The reforms packages have addressed this problem by amending the Foundations Law and allowing non-Muslim minorities to register the property they actually use as long as they can prove ownership.⁶¹ A new paragraph was also added to the article of the Penal Code concerning the minorities that prohibits degrading a part of society in a way that violates human dignity and hence penalizes individuals who express degrading comments about ethnic and religious groups within the country (Aydın and Keyman 2004: 31-32).