brief evaluation of the constitutional amendment package

8/9/2019 Brief Evaluation of the Constitutional Amendment Package

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BRIEF EVALUATION OF THE CONSTITUTIONAL

AMENDMENT PACKAGE WITHIN THE PERSPECTIVE OF

EUROPEAN UNION HARMONISATION PROCESS

Introduction

The harmonisation of the political criteria within the EU acquis requires an approach which

covers political and social changes, particularly in terms of improvement of democracy,

protection of human rights and improvement of the supremacy of the law.

In the light of this approach, the efforts to harmonise the legal and political system of the

Turkish Republic with the contemporary international standards and EU criteria are still in

progress. To this end, the amendment of some provisions of the Constitution with a view to

making it consistent with the contemporary standards should be emphasized.

The existence of the standards of the pluralist societies in Turkish Constitution will pave the

way for the Turkish people to live in contemporary standards and thus will positively

contribute to the EU-membership process.

In this regard, it has been considered beneficial to make a general evaluation on some

provisions in the Constitutional reform package. Throughout this evaluation, reference will be

made to the European Convention on Human Rights to which Turkey is a party, the case-law

of the European Court of Human Rights as well as the other Conventions of the Council of

Europe. Indeed, the above mentioned institutions and documents are the most important

instruments that are regarded as milestones by both EU countries and non-member countries

of the vast European contitent.

PROPOSAL S TO THE CONSTITUTIONAL AMENDMENTS

ARTICLE 1

This proposal is relevant to Article 10 of the Turkish Constitution. It aims to provide

constitutional basis for the possibility of positive discrimination in favour of those who are in

need of special protection, such as children, the women, the elderly and the disabled persons.

REFERENCE IN RELATED EU DOCUMENTS

2008 Accession Partnership Document

Anti discrimination policies

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To provide guarantee in law and in practice for the full enjoyment of human rights and

fundamental freedoms by all individuals, without discrimination and irrespective of language,

political opinion, sex, racial or ethnic origin, religion or belief, disability, age or sexual

orientation.

2009 Progress Report

The principle of anti-discrimination is enshrined in the Constitution and upheld in several

laws. The Government raised public awareness on anti-discrimination and decided that the

first lecture of the school year should be conducted on this issue. However, the legal

framework is not adequately aligned with the EU acquis.

The aim of the proposal is to provide Constitutional Guarantee for those who need special

treatment. Besides this proposal, Turkish Government is drafting two laws: The Law on FightAgainst Discrimination and Equality Board and the Law on Turkish National Human Rights

Board. Studies on the first draft continue under the coordination of Ministry of Interior. The

draft law on Turkish National Human Rights Board is submitted to Turkish Grand National

Assembly.

The proposal is also in line with the Revised European Social Charter, Recommendations of

the Commitee of Ministers of Council of Europe to which our country is a member and with

the other international agreements to which Turkey is a party.

ARTICLE 2

The right of persons to ask their personal data to be protected is guaranteed under the propasal

regarding Article 20 of the Constitution.


Accession Partnership (2008)

Strengthen efforts to align its legislation with the acquis on the protection of personal data

and to establish an independent data protection supervisory authority


With regard to respect for private and family life and, in particular, the right to protection of

personal data, Turkey needs to align its legislation with the data protection acquis, in

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labour. Cases of juveniles tried as adults and facing disproportionate sentences raise serious

concerns.

In parallel to the proposal prepared in the light of the Convention of United Nation on

Protection of Children's Rights and the Convention of Council of Europe on Protection of

Children against Sexual Exploitation, the Parliament and government carry out intensive

activities. The legal amendment contained in the reform package referred to the Parliament on

10 November 2009 for children exploited by the terror organizations and the TAEIX seminar

organized in cooperation with General Secretariat and our Ministry on 13-14 April 2010 as

regards international juvenile justice system are the most current examples in this field.

ARTICLE 5,6 and 13.

Thanks to the proposed amendments related to Article 51, 53, 54 and 128 of Turkish

Constitution, the right to organise, the right to strike and the right to bargain collectively is

ensured.

Accession Partnership(2008)

Labour rights and trade unions:

Ensure that full trade union rights are respected in line with EU standards and relevant ILO

Conventions, in particular as regards the right to organise, the right to strike and the right to

bargain collectively.

Further reinforce social diologue, faciliate cooperation with and encourage EU partners.


Labour Rights and trade unions:

...the efforts to reform trade union legislation did not bear fruit. The current legal framework

including the constitutional provisions on trade union rights is not in line with EU

standards and ILO Conventions, in particular as regards the right to organise, the right to

strike and the right to bargain collectively, for either the private or public sectors. There have

been reports of restrictions on exercise of existing trade union rights and of dismissals due to

trade union membership.

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This recommendations are of great importance in the context of ILO Convention 87 on

Freedom of Association and Protection of Rights to Organise and related Conventions, as well

as of the Revised European Social Charter and the ECHR.

Thanks to the improvement of freedom of association and the extension of the rights related tothe trade unions, strengthtening of civil society will be ensured by the remedies provided in

line with universal principles. As a result, higher standards will be established, establishment

of civil society structures, recommended by EU, will be met

ARTICLE 8 and 10

The proposal regarding Article 69 aimed to introduce a system of permission to be given by

the Turkish National Assembly to launch a closure case against a political party. It was also

aimed that supervision of political parties would be carried out by the Court of Auditors on

fiscal matters. However, this Article was taken out of the package due to the fact that

necessary quorum was not maintaned.

On the other hand, with the proposal on Article 84, the system which envisaged the

deprivation of MP status for those who would lead to closure of his/her parties, has been

lifted. This is in line with mainstream democratic principles, the European Convention on

Human Rights and the case law of the European Court of Human Rights.


Accession Partnership of 2008

Freedom of asembly and association.

Alignment with best practices in EU Member States as regards legislation on political parties


On 14 March 2009 the Venice Commission of the Council of Europe published its opinion on

the Turkish legislation governing the closure of political parties. It concluded that Articles 68

and 69 of the Constitution and the relevant provisions of the Law on Political Parties form a

system which, as a whole, is incompatible with Article 11 of the European Convention on

Human Rights (right to freedom of assembly and association). The Turkish authorities have

not yet amended the legislation accordingly.

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Turkey still needs to bring its legislation on political parties in line with European standards.

Anti-corruption

No progress has been made on adoption of legislation on the financing of political parties

and election campaigns, which would increase transparency. There is no state body with the

authority to audit election campaign financing.

Freedom of Assembly

There is no progress on amendments to the legal provisions on the closure of political parties.

Political parties are indeniable factors of a democratic life in a country where different

thoughts and ideas can be collectively raised. They are also of prominent importance in the

development and stableness of Turkish political life in terms of their establishment

compatible with contemporary democracies in particular best european practices,including

financial matters, judicial supervision on thereof. Having regard to above mentioned

intentions, the constitutional amendment package introduces a democratic control over party

closure cases. It also makes a closure more difficult.

ARTICLE 9

With the proposal on Article 74 of the Constutition, constitutional basis is provided for

establishing an independent Ombudsman.



Fundamental Rights

Constutitional amendment aims at establishing an independent Ombdusman has not yet been

adopted.

Promotion and implementation of human rightsIn relation to establishment of an independent Ombudsman and Human Rights Board, further

efforts are needed so as to strenghten the legal framework for human rights.

As known, the draft law on Establishment of Ombudsman was declared null and void by the

Constitutional Court. The failed law would be one of the important element for the

institutionalisation in the area of human rights.

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With the help of this proposal deemed to meet needs in this field, Turkey will be out of group

of countries where there is no such existing institution. In addition, preliminary works

launched by the Government to establish National Human Rights Board and the Board on

Fight Against discrimination and Equality will also serve as a basis for instutitonalisation for

human rights.

Thanks to the constitutional basis for Ombudsman, it will be ensured that acts and actions of

the administration will be subject to an independent review in terms of good governance and

conformity with the law. Protection of human rights mechanism will also be strenghtened.

This will be an important step to reach the idea of having an effective state with rule of law

as well as to harmonization with EU.

ARTICLE 15 and 23

With the proposals on Article 144 and 159 of the Constitution, composition of the High

Council for Judges and Public Prosecutor (HCJP), qualification and selection of the HCJP's

members, regulation of working methods and principles and transfer of competence of the

Justice Ministry to inspect judges and prosecutors to the HCJP are basicly regulated


Accession Partnership (2008)

To ensure that the judiciary is independent of other state institutions, in particular as regards

the High Council of Judges and Prosecutors and the inspection system. More specifically,

ensure that the High Council of Judges and Prosecutors represents the judiciary as a whole,

Progress Report 2009; Judiciary:

As regards the independence of the judiciary, There has been no progress on the composition

of the High Council of Judges and Prosecutors or on the reporting lines of judicial inspectors.

The composition of the High Council is not representative of the judiciary as a whole; only

senior members of the Court of Cassation and of the Council of State are members of this

Council. The judicial inspectors, who are responsible for evaluating the performance of

judges and prosecutors, are attached to the Ministry, not to the High Council.

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As regards the independence of the judiciary, concerns remain with regard to the procedure

laid down in the Law on judges and prosecutors for the selection of candidate judges and

prosecutors. The main feature of the criticism is that the criteria used for this selection are

open to subjective interpretation.

There has been no progress on the composition of the High Council of Judges and

Prosecutors or on the reporting lines of judicial inspectors.

In the Progress Reports of the EU, regarding the independence of the High Council the issue

that only senior members of the Court of Cassation and of the Council of State are members

of this Council and the issue that the judicial inspectors, who are responsible for evaluating

the performance of judges and prosecutors, are attached to the ministry, not to the High

Council are the matters of criticism.

The regulations included in the Constitutional amendment are essentially among the important

components in the Strategy for Judicial Reform and the Action Plan which have been

prepared by the Ministry of Justice at the end of a comprehensive consultation process that

has been long and well-attended by all related stakeholders and which have been

complemented in international platforms in terms of both preparation process and content.

Implementation of the Strategy for Judicial Reform and the Action Plan is critically important

in terms of having Turkey to own a contemporary judicial system in the process for the EU

membership.

It is evaluated that a broad-based High Council which will represent the judiciary as a whole

will constitute a more effective mechanism of operation and supervision through these

constitutional amendments. Establishment of a more effective, fair and productive judicial

system which is compatible with the examples in the EU countries will constitute an

important improvement in judiciary.

ARTICLE 16

The aim of the proposal on Article 145 of Constitution is that competence of the military

judiciary shall be limited to handling of military offences and that criminal offences

committed against state security, constitutional order and its functioning shall exclusively be

dealt with by civil judiciary in any case. Besides, non-military persons shall not be tried in

military judiciary except in wartime.

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Accession Partnership (2008) Civilian Oversight of the Security Forces

Limitation of judicial authority of military courts to military offences of military staff.

Progress Report (2009) Civilian Supervision of Security Forces

Judicial practice in relation to jurisdiction of military courts shall be compatible with the one

practised in the EU.

This amendment, indeed, constitutes great importance within the context of decisions of the

European Court of Human Rights since it safeguards the right to have a fair trial which is

envisaged in Article 6 of European Convention of Human Rights.

ARTICLES 17, 18 and 20

With these proposals on Articles 146, 147 and 149 of the Constitution, composition, member

selection and merits of operation of Constitutional Court are restructured.

Composition, selection of its members and procedures of operation of Constitutional Court

are improved in the light of practices in various countries especially those of the EU

countries. With these amendments the structure is being modified and the selection regime of

of Constitutional Court as well as the number of members is being increased. With this

amendment the institutions from which the members are selected diversify and the term of

membership is being limited to a certain period. Besides, representation of various elements

of justice mechanism is thus strengthened and the improvement in the reflection of social

change is also maintained. Thus, Constitutional Court will be able to reflect various elementsof democratically pluralist society in a much stronger way.

ARTICLE 19

With this proposal made on Article 148 of our Constitution, the right of individual recourse to

Constitutional Court is introduced.

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brief evaluation of the constitutional amendment package

Documents