Masarykova univerzita V brně Fakulta sociálních studií
Developments in the years 2005 – 2008
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- 4.5 Institutional framework
4.4 Developments in the years 2005 – 2008Freedom of expression is the area where probably the most intense struggle between the reformist and conservative sides is taking place in Turkey. Legislative reform in this field, most particularly through the new Penal Code,62 has begun to be applied in practice and a significant number of people jailed under the old Penal Code have been set free. There has been a continued reduction in the number of prosecutions, and particularly convictions, in cases that fall within the scope of freedom of expression. Article 301 of the new penal Code is currently the major tool used by the anti-reform elements in the country to file complaints regarding expression of opinions. It regulates offences that involve ‘insulting Turkishness, the Republic, the Parliament and state institutions’ and in fact constitutes a revised version of the infamous Article 159 of the old Penal Code by considering those statements that are not intended to ‘insult’ but criticize’ as being outside its jurisdiction.63 The vaguely-worded Article 301 is significant, but not the only, mechanism through which freedom of expression is curtailed. (Keyman and Düzgit 2007: 78). In April 2008 the Turkish parliament adopted amendments to Article 301 with the intention of strengthening the safeguards for freedom of expression. The amendments changed the wording of the article to “A person who publicly degrades the Turkish nation, the State of the Republic of Turkey, the Turkish Grand National Assembly, the Government of the Republic of Turkey and the judicial bodies of the State, shall be sentenced to a penalty of imprisonment for a term of six months to two years’. The expression of opinion for the purpose of criticism does not constitute an offence (Turkey progress report 2008: 16). In March 2005 a regulation was adopted that detailed the implementing rules for the Law on Associations (which entered into force in November 2004). It imposes restrictions on the registration of associations whose name and/or objectives are considered to be contrary to the Turkish Constitution. This is of particular concern in relation to constitutional articles referring to the integrity of the state or the interpretation of the principle of secularism (Turkey progress report 2005: 27). The legal framework further improved with the amendments to the Law in February 2008. The scope of the new Law extends to all existing foundations. The new provisions relax the conditions for establishing a foundation and ease the regulatory framework for their activities, in particular on selecting board members, acquiring or selling assets, receiving funds from abroad and co-operating with foreign foundations. The previous ban on foreigners establishing foundations in Turkey has been replaced by the principle of reciprocity. The Law provides for the establishment of the Foundations Council as the highest decision-making body for foundations (Turkey progress report 2008: 18). Besides the new Penal Code also Code of Criminal Procedure came into force in 2005. Its amendment from December 2006 introduced a new system for commissioning of a defence lawyer. Under the new system, the range of offences qualifying for compulsory commissioning of a defence lawyer might be more limited as compared to the past. The efforts regarding fight against torture were pursued by strengthening the system for the medical examination of alleged cases of abuse, and by increasing the number of forensic medicine centers (Turkey progress report 2007: 13). As regards the educational rights of minorities, the Law on Private Educational Institutions which entered into force in February 2007 reconfirms the right of non-Muslim minorities associated by the authorities with the Treaty of Lausanne to hold minority schools (Turkey progress report 2007: 21). 4.5 Institutional frameworkBesides the legislative reforms the measures taken for ensuring their effective implementation are no less important. Turkey established a number of bodies with responsibilities connected to the human rights policy. The Human Rights Presidency, established in 2000 is intended to monitor the implementation of legislation in the area of human rights. At the same time the High Human Rights Board was established. It is and inter-ministerial committee responsible for making proposals intended to promote and to strengthen human rights protection in Turkey. The Human Rights Consultation Board is designed to serve as a permanent forum of exchange of views between the Government and NGOs. The Investigation Boards has the task to conduct on the spot investigations with respect to alleged human rights abuses (Turkey progress report 2001: 21). Human Rights Boards have been established in 2001. They are composed of the representatives of non-governmental organizations, professional organizations, academic institutions, media, local administrations and the government. The boards are responsible for handling human rights complaints and referring them to the prosecutor’s office. A Human Rights High Council, chaired by the deputy prime minister (the minister responsible for human rights) and composed of the undersecretaries of various ministries was established with the task of acting upon the reports submitted by the Human Rights Advisory Council, a subordinate body that consists of high-level government officials as well as representatives of NGOs. The Advisory Council drafts recommendations for the government in matters of human rights policy and matters related to implementation. A Human Rights Violations Investigation and Assessment Centre was established within the Gendarmerie Command in 2003 (Turkey progress report 2003). The Reform Monitoring Group established in 2003 is responsible for identifying difficulties experienced in the practical implementation of the reforms. The group is also entrusted with the task of ensuring that allegations of human rights violations are investigated. Parliamentary Human Rights Inquiry Commission functions basically as a national monitoring mechanism, alleges violations of human rights and produce reports which are forwarded to the relevant institutions. The members of the commission conduct on-site inspections of detention centers and prisons and present their findings to competent government offices (Aydın and Keyman 2004: 22-23). At parliament level, the Human Rights Investigation Committee has established two sub-committees to investigate torture and ill-treatment in prisons and detention centers and the murder of journalist Hrant Dink.64 The establishment of the Ombudsman has been outstanding since 2006, following the application of former President Sezer to the Constitutional Court for the annulment of some provisions of the Law.
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