Turkey

   

Quality of Democracy

#41
Key Findings
With the scars of the post-coup state of emergency still fresh, Turkey takes the SGI 2020’s bottom spot (rank 41) with regard to democracy quality. Its score on this measure has declined 1.9 points relative to its 2014 level.

The country is undergoing an unsettled political transformation, with the executive system transitioning from a state of emergency to a presidential system. The new system was imposed by decree, and the restructuring of the public administration will take some time and increase uncertainty. Numerous unconstitutional regulations have been adopted by parliament or issued by the executive.

Opposition party officeholders face the threat of being removed from office by presidential decree. Journalists and media organizations critical of the government have faced threats, physical attacks and fines. Many journalists who have refused to “adapt to the new political period” have been fired. Online media censorship remains significant.

Judicial staff are still being dismissed or forcibly transferred. The recruitment of a large number of inexperienced judges and prosecutors using fast-track procedures has further undermined judicial independence. The Constitutional Court has not performed consistently in terms of defending political stability, and human and civil rights. Corruption remains widespread.

Electoral Processes

#41

How fair are procedures for registering candidates and parties?

10
 9

Legal regulations provide for a fair registration procedure for all elections; candidates and parties are not discriminated against.
 8
 7
 6


A few restrictions on election procedures discriminate against a small number of candidates and parties.
 5
 4
 3


Some unreasonable restrictions on election procedures exist that discriminate against many candidates and parties.
 2
 1

Discriminating registration procedures for elections are widespread and prevent a large number of potential candidates or parties from participating.
Candidacy Procedures
5
The legal groundwork for fair and orderly elections and the prevention of discrimination against any party or candidate are provided for in the Turkish constitution, Law 298 on the basic principles of elections and the electoral registry, Law 2839 on deputies’ elections, and Law 2972 on local-administration elections. However, the relative freedom given to each political party’s central executive committee in determining party candidates (by Law 2820 on political parties, Article 37) renders the candidate-nomination process rather centralized, anti-democratic and exclusionary. The parliament weakened the centralization of political parties’ leadership to some extent in 2014 with the passage of a law permitting co-leadership structures. However, administrative courts and the Council of State stopped the co-mayoral practices of the HDP. Parties’ executive boards typically determine their parties’ candidate lists, with the exception of the Republican People’s Party, which holds a primary-election vote. An independent candidate who secures a majority of votes in his or her electoral district is allowed to take a parliamentary seat without regard to the nationwide threshold. The Supreme Board of Election (YSK) authorizes the final list of candidates for presidential, parliamentary and local elections in accordance with the eligibility rules prescribed by the constitution (Articles 76 and 101), and the presidential election, deputies election and local administration elections laws. Eligibility criteria include a prescribed level of education (i.e., primary school for parliamentary and local elections, and higher education for presidential candidates), legal capacity and criminal records (e.g., having been sentenced to prison for certain crimes). Each citizen can object to presumptive candidates within the period announced by the YSK, which makes the final decision on any objections.

The nationwide 10% electoral threshold for parliamentary elections (Law 2839 on deputies’ elections, Article 33) is a major obstacle for all small political parties. In 2008, the European Court of Human Rights (ECHR) found the 10% electoral threshold to be excessive, but not in violation of the European Convention on Human Rights’ Protocol 1 Article 3. As of November 2019, there were 75 registered political parties. The Party Law (Article 90/2) was amended in order to enable parties to form pre-electoral alliances in March 2018. The share of the representation of valid votes rose to 98% and resulted in overrepresentation of big parties (8%) and underrepresentation of small parties (6%) in this parliament.

According to the constitutional amendments of 2017 (Article 101/3), political parties that either individually or as a coalition gained at least 5% of the total votes in the last parliamentary election can nominate a presidential candidate. In addition, independents can run as a presidential candidate if they collect at least 100,000 signatures for which notarization is not required in the 2018 elections.

During the state of emergency period, dozens of elected HDP mayors (mainly heads of local administrations in provincial capitals, districts and smaller localities) were ousted from office by presidential decree and replaced by state officials. As of December 2018, prior to the post-state of emergency local elections, 50 of them remained in prison. In 2019, HDP mayoral and local council candidates continue to face the threat, if elected, of being removed from office by presidential decree. This practice by state authorities may have led some potential candidates to abstain, informally undermining the fairness of elections.

Citations:
Seçimlerin Temel Hükümleri ve Seçmen Kütükleri Hakkında Kanun İle Bazı Kanunlarda Değişiklik Yapılmasına Dair Kanun, 16 March 2018, http://www.resmigazete.gov.tr/eskiler/2018/03/20180316-28.htm, (accessed 27 October 2018)

Selahattin Demirtaş v. Turkey, https://hudoc.echr.coe.int/eng-press#%22itemid%22:[%22003-6255331-8141045%22] (accessed 20 November 2018)

SBE, Decision 3237, 12 July 2014, http://www.ysk.gov.tr/ysk/content/conn/YSKUCM/path/Contribution%20Folders/Kararlar/2014-3237.pdf (accessed 5 November 2014)

SBE, Decision 543, 12 November 2013, http://www.ysk.gov.tr/ysk/docs/Kararlar/2013Pdf/2013-543.pdf (accessed 5 November 2014)
Faaliyette olan siyasi partiler, https://www.yargitaycb.gov.tr/documents/ek1-1567773818.pdf (accessed 1 November 2019)

OSCE – ODIHR, Early Presidential and Parliamentary Elections Republic of Turkey 24 June 2018, ODIHR Election Observation Mission Final Report, https://www.osce.org/odihr/elections/turkey/397046?download=true (accessed 27 October 2018)

“Danıştay’dan “eş başkanlık” uygulamasının durdurulmasına onay,” 23.03.2016, http://www.haberturk.com/gundem/haber/1213998-danistaydan-es-baskanlik-uygulamasinin-durdurulmasina-onay
(accessed 7 October 2017)

Al-Monitor.com (2019) How the Kurdish factor had a boomerang effect in Erdoğan’s election defeat, 11 April 2019, https://www.al-monitor.com/pulse/originals/2019/04/turkey-kurdish-factor-boomerang-effect-in-election.html

To what extent do candidates and parties have fair access to the media and other means of communication?

10
 9

All candidates and parties have equal opportunities of access to the media and other means of communication. All major media outlets provide a fair and balanced coverage of the range of different political positions.
 8
 7
 6


Candidates and parties have largely equal opportunities of access to the media and other means of communication. The major media outlets provide a fair and balanced coverage of different political positions.
 5
 4
 3


Candidates and parties often do not have equal opportunities of access to the media and other means of communication. While the major media outlets represent a partisan political bias, the media system as a whole provides fair coverage of different political positions.
 2
 1

Candidates and parties lack equal opportunities of access to the media and other means of communications. The major media outlets are biased in favor of certain political groups or views and discriminate against others.
Media Access
1
According to Law 3984 on the establishment of radio and television enterprises and broadcasts, “equality of opportunity shall be established among political parties and democratic groups; broadcasts shall not be biased or partial; broadcasts shall not violate the principles of election bans which are determined at election times.” However, legislation regulating presidential elections and referendums does not ensure equal access for political parties and candidates to public and private media. The Supreme Board of Elections’ (SBE) ability to penalize those who violate electoral regulations was repealed using the state of emergency decree (No. 687) issued in January 2017. The existence of this impunity mechanism facilitated several violations in the June 2018 elections that went unpenalized.

Currently, most mainstream media companies, including the state-owned radio and television company (TRT), are either directly or indirectly controlled by the government, or self-censor. Privately owned media outlets face either judicial or financial investigations, and media freedom is thus being placed at risk in an unconstitutional manner.

During the 2019 campaigns for local administration elections, the People’s Alliance (comprised of the AKP and MHP) received 61% of the airtime allotted for political parties by the state-run TRT 1 and TRT news outlets. These two channels broadcast a total of 77 hours of negative news targeting the Nation Alliance (comprised of the CHP and IYI parties) and the Peoples’ Democratic Party (HDP).

The state-run Anadolu Agency stopped updating election results toward midnight on 31 March 2019 when the CHP İstanbul mayoral candidate began to catch his AKP rival. After not updating figures for 13 hours, Anadolu Agency finally declared CHP ahead in the İstanbul elections.

International observers stressed that candidates in the 2018 and 2019 elections did not compete on an equal basis. Notably, access to the media for political parties campaigning in the elections was unequal, which was reflected in excessive coverage of pro-government parties by government-affiliated public and private media.

Citations:
European Commission, Turkey 2019 Report, Brussels, 29.5.2019, https://ec.europa.eu/neighbourhood-enlargement/sites/near/files/20190529-turkey-report.pdf (accessed 1 November 2019)

OSCE – ODIHR, Early Presidential and Parliamentary Elections Republic of Turkey 24 June 2018, ODIHR Election Observation Mission Final Report, https://www.osce.org/odihr/elections/turkey/397046?download=true (accessed 27 October 2018)

“AA’nın seçim sonuçları “yanlışlıkla” seçimden 4 gün önce yayınlandı,” https://odatv.com/aanin-secim-sonuclari-yanlislikla-secimden-4-gun-once-yayinlandi-21061823.html (accessed 27 October 2018)

“State-Run AA Declares CHP Ahead in İstanbul Elections After 13-Hour Silence,” 1 April 2019, http://bianet.org/english/politics/207014-state-run-aa-declares-chp-ahead-in-istanbul-elections-after-13-hour-silence (accessed 1 November 2019)

Uluslararası Şeffaflık Derneği, 2019 Yerel Seçim Raporu, http://www.seffaflik.org/wp-content/uploads/2019/04/Yerel-Se%C3%A7im-%C4%B0zleme-%C3%87al%C4%B1%C5%9Fmas%C4%B1-10.pdf (accessed 1 November 2019)

Ö. F. Gençkaya, “Financing political parties and electoral campaigns in Turkey,” S.Sayarı, P. Ayan-Musil and Ö. Demirkol (eds), Party Politics in Turkey, Routledge: Oxon and New York, 2018.

To what extent do all citizens have the opportunity to exercise their right of participation in national elections?

10
 9

All adult citizens can participate in national elections. All eligible voters are registered if they wish to be. There are no discriminations observable in the exercise of the right to vote. There are no disincentives to voting.
 8
 7
 6


The procedures for the registration of voters and voting are for the most part effective, impartial and nondiscriminatory. Citizens can appeal to courts if they feel being discriminated. Disincentives to voting generally do not constitute genuine obstacles.
 5
 4
 3


While the procedures for the registration of voters and voting are de jure non-discriminatory, isolated cases of discrimination occur in practice. For some citizens, disincentives to voting constitute significant obstacles.
 2
 1

The procedures for the registration of voters or voting have systemic discriminatory effects. De facto, a substantial number of adult citizens are excluded from national elections.
Voting and Registration Rights
5
All Turkish nationals over the age of 18 can exercise the right to vote (Constitution, Article 67). The Supreme Election Board (SEB) is the sole authority in the administration of Turkish elections (Law 298, Article 10). The General Directorate of the Electoral Registry, a part of the SBE, prepares, maintains and renews the nationwide electoral registry.

The ban on military students and conscripts, and the blanket restriction on voting rights for prisoners are disproportionate and at odds with Turkey’s international obligations (e.g., Turkey’s OSCE commitments). About six million young people waiting to vote in November 2019 could not vote because early elections were held in June 2018.

In 2008, the parliament passed a law facilitating voting for Turkish citizens who are not living or present in Turkey during elections (Law 5749). In the 2018 early parliamentary and presidential elections, about 1.5 million votes, or half of the registered voters in total, were cast abroad. The distance of polling stations from residents’ homes and the comparatively short voting period can be considered as potentially major obstacles to voting.

Turkey has a passive electoral registration system maintained by the SBE. Despite the recent revision of the national electoral registry based on an address-registration system, critics have noted that the number of registered voters and the number of eligible citizens registered in the address system do not match. Similar irregularities were claimed by some citizens during the rerun Istanbul metropolitan municipality election. Disabled voters sometimes face difficulties, as many polling stations lack appropriate access facilities.

Parliamentary and local elections are conducted by local election boards under the supervision of the SBE. These local boards verify election returns and conduct investigations of irregularities, complaints and objections, with the national board providing a final check. According to an independent report, during the 2018 elections, 127 attacks were organized, four people were killed and 90 people were injured, while 387 people were detained and 15 people were jailed.

Inconsistency in electoral results were examined by some NGOs, including Oy ve Ötesi and the Chamber of Computer Engineers. These reports underlined some insignificant errors. In order to double check the election results published by the SBE, the CHP organized a “fair election mobilization” system. However, this system proved to be ineffective.

Citations:
OSCE – ODIHR, Early Presidential and Parliamentary Elections Republic of Turkey 24 June 2018, ODIHR Election Observation Mission Final Report, https://www.osce.org/odihr/elections/turkey/397046?download=true (accessed 27 October 2018)
Temiz Seçim Platformu, 2007-2015 Seçim Hileleri Raporu, 1 Mayıs 2015, TUİK ile YSK’nın Türkiye Listelerinin Karşılaştırılması, temizsecim.org/2007-2014-secim-hileleri-raporu.html (accessed 27 October 2018)
24 Haziran 2018 Milletvekili Seçim Sonuçları – Yurt dışı, http://www.hurriyet.com.tr/secim/24-haziran-2018-secimleri/yurtdisi-milletvekili-secim-sonuclari (accessed 27 October 2018)
Seçim Döneminde HDP’ye 93 Ayrı Müdahale, https://m.bianet.org/bianet/siyaset/198468-secim-doneminde-hdp-ye-93-ayri-mudahale (accessed 27 October 2018)
23 Haziran seçimleri: İstanbul’da seçmen kayıtları siliniyor mu? Muhtarlar ve iddia sahipleri konuştu, 14 May 2019, https://tr.euronews.com/2019/05/13/istanbul-da-secmen-kayitlari-siliniyor-mu-euronews-muhtarlar-ve-iddia-sahipleriyle-konustu (accessed 1 November 2019)
“Oy ve Ötesi 24 Haziran Seçimleri Ön Değerlendirme Raporu ile YSK Kesin Sonuçları Karşılaştırmalı Veri Analizi,” https://odatv.com/images2/2018_11/2018_11_13/oyveotesiverianalizi.pdf (accessed 27 October 2018)

To what extent is private and public party financing and electoral campaign financing transparent, effectively monitored and in case of infringement of rules subject to proportionate and dissuasive sanction?

10
 9

The state enforces that donations to political parties are made public and provides for independent monitoring to that respect. Effective measures to prevent evasion are effectively in place and infringements subject to effective, proportionate and dissuasive sanctions.
 8
 7
 6


The state enforces that donations to political parties are made public and provides for independent monitoring. Although infringements are subject to proportionate sanctions, some, although few, loopholes and options for circumvention still exist.
 5
 4
 3


The state provides that donations to political parties shall be published. Party financing is subject to some degree of independent monitoring but monitoring either proves regularly ineffective or proportionate sanctions in case of infringement do not follow.
 2
 1

The rules for party and campaign financing do not effectively enforce the obligation to make the donations public. Party and campaign financing is neither monitored independently nor, in case of infringements, subject to proportionate sanctions.
Party Financing
4
Article 60 of Law 2820 requires political-party organs at every level to keep a membership register, a decision book, a register for incoming and outgoing documents, an income and expenditure book, and an inventory list. According to Article 73 of Law 2820, political parties must prepare yearly statements of revenues and expenditures, at both the party-headquarters and provincial levels. However, Turkish law does not regulate the financing of party or independent-candidate electoral campaigns. Presidential candidates’ campaign finances are regulated by Law 6271; these candidates can legally accept contributions and other aid only from natural persons having Turkish nationality. However, the Supreme Election Board (SEB) has allowed political parties to organize campaign activities and purchase advertisements for their candidates in a way unregulated by law. Thus, the state aid provided to the political parties can be used indirectly for presidential-campaign activities. The SEB has not published the accounts of Turkey’s main parties since 2015. Therefore, it is unknown how much political parties spent on campaigning over the last two presidential elections. Excluding Erdoğan, presidential candidates collected about €5.3 million (TRY 32 million) in donations from eligible people.

The cap on donations to political parties from private individuals is reviewed each year. In 2018, the limit was approximately €7,072 (TRY 42,434). However, donations are rarely properly and systematically recorded. For example, cash donations and in-kind contributions to, and expenditure on behalf of parties or candidates during elections are not recorded. The funds collected and expenditure incurred by elected representatives and party candidates (e.g., during election campaigning) are not included in party accounts. There is no legal ceiling on campaign spending. The finances of candidates in local and parliamentary elections are not regulated by law. There is no specific reporting obligation for campaign contributors, apart from a general requirement, based on the Tax Procedure Code, for individuals to declare expenses (which could include political contributions) to the tax authorities.

Party accounts published in the Official Gazette provide only general figures and potential infringements. The accuracy of the financial reports posted by political parties online needs to be examined. Pursuant to Article 69 of the constitution, Article 74 of Law 2820 stipulates that the Constitutional Court, with the assistance of the Court of Accounts, examines the accuracy of information contained in a party’s final accounts and the legality of recorded revenues and expenditures on the basis of information at hand and documents provided. Only three out of approximately 800 auditors of the Court of Accounts are mandated to audit party and campaign finance.

Citations:
GRECO, Fourth Interim Compliance Report on Turkey, 4-8 December 2016, https://rm.coe.int/third-evaluation-round-fourth-interim-compliance-report-on-turkey-incr/1680792e28 (accessed 27 October 2018)
OSCE – ODIHR, Early Presidential and Parliamentary Elections Republic of Turkey 24 June 2018, ODIHR Election Observation Mission Final Report, https://www.osce.org/odihr/elections/turkey/397046?download=true (accessed 27 October 2018)
Ö. Faruk Gençkaya, “Financing of Political Parties and Electoral Campaigns in Turkey,” S. Sayarı, P. Ayan-Musil and Ö. Demirkol, Party Politics in Turkey: A Comparative Perspective, Routledge, 2018.
“İşsizlik Sigortası Fonu Seçimler İçin Kullanılıyor,” 21 June 2018, https://m.bianet.org/bianet/siyaset/198366-issizlik-sigortasi-fonu-secimler-icin-kullaniliyor (accessed 27 October 2018)
Ç. Bircan and O. Saka, “Lending Cycles and Real Outcomes: Costs of Political Misalignment,” LEQS Paper No. 139/2018 December 2018.

Do citizens have the opportunity to take binding political decisions when they want to do so?

10
 9

Citizens have the effective opportunity to actively propose and take binding decisions on issues of importance to them through popular initiatives and referendums. The set of eligible issues is extensive, and includes national, regional, and local issues.
 8
 7
 6


Citizens have the effective opportunity to take binding decisions on issues of importance to them through either popular initiatives or referendums. The set of eligible issues covers at least two levels of government.
 5
 4
 3


Citizens have the effective opportunity to vote on issues of importance to them through a legally binding measure. The set of eligible issues is limited to one level of government.
 2
 1

Citizens have no effective opportunity to vote on issues of importance to them through a legally binding measure.
Popular Decision-Making
2
According to Article 67 of the constitution, all citizens over 18 years old have the right to take part in referendums. Referendums are held in accordance with the principles of free, equal, secret and direct universal suffrage, with votes counted publicly. In recent years, referendums were held to amend the 1982 constitution. Paragraph 3 of Article 175 of the constitution reads that, if the parliament adopts a draft constitutional amendment referred by the president by a two-thirds majority, the president may submit the law to a referendum. Laws related to constitutional amendments that are the subject of a referendum must be supported by more than half of the valid votes cast in order to be approved.

If a law on an amendment to the constitution is adopted by at least a three-fifths majority but less than a two-thirds majority of the total number of members of the Grand National Assembly, and is not sent back to the Assembly for reconsideration by the president, it is then published in the Official Gazette and submitted to a referendum.

A law on a constitutional amendment adopted by a two-thirds majority of the Assembly directly or upon the return of the law by the president may be submitted to a referendum by the president.

Turkey’s constitutional system has an appropriate framework for participatory public policymaking. However, there is no comprehensive policy framework or pre-defined set of principles. ICT-based participatory mechanisms, such as “common sense,” are being promoted.

Popular decision-making is also possible at the local level. Law 5593 on municipalities (Article 76) enables city councils to implement policies for the benefit of the public. However, these units are not wholly effective, as they depend upon the goodwill of the local mayor, and some councils only exist on paper and have yet to be established in practice. Law 6360, in effect since 2014, has paved the way for more centralized decision-making processes, including in urban planning and on local matters. Some municipalities conducted local referendums on traffic management, strategic planning for 2015 to 2019 and environmental planning.

Citations:
World Justice Project, Rule of Law Index 2019, https://worldjusticeproject.org/sites/default/files/documents/ROLI-2019-Reduced. pdf (accessed 1 November 2019)

H. Akay, Yerel Yönetimlerde Katılımcı Mekanizmalar ve Süreçler, Istanbul: Türkiye Avrupa Vakfı, 2016.

E. B. Karakitapoğlu, Public participation in EIA process of small hydro power plants (HES) in Turkey, University of Uppsala, 2015.

S. Karaman (2013), How do Turkish citizens participate in decision-making? 4 August 2013, https://www.opendemocracy.net/can-europe-make-it/semanur-karaman/how-do-turkish-citizens-participate-in-decision-making (accessed 1 November 2018)

H. Yerlikaya, Kamu Politikalarının Oluşturulmasında Katılımcılık ve Bilgi ve İletişim Teknolojileri, Ankara, 2015.

Access to Information

#41

To what extent are the media independent from government?

10
 9

Public and private media are independent from government influence; their independence is institutionally protected and fully respected by the incumbent government.
 8
 7
 6


The incumbent government largely respects the independence of media. However, there are occasional attempts to exert influence.
 5
 4
 3


The incumbent government seeks to ensure its political objectives indirectly by influencing the personnel policies, organizational framework or financial resources of public media, and/or the licensing regime/market access for private media.
 2
 1

Major media outlets are frequently influenced by the incumbent government promoting its partisan political objectives. To ensure pro-government media reporting, governmental actors exert direct political pressure and violate existing rules of media regulation or change them to benefit their interests.
Media Freedom
1
The constitutional guarantees of freedom of the press and freedom of expression are rarely upheld in practice. The current legal framework and practice are restrictive and do not meet EU standards. The government appoints the general director of the country’s public broadcaster, Turkish Radio and Television (TRT). In doing so, it essentially exercises tutelage over the public-media organization’s administration. Several TRT channels regularly broadcast pro-government programs, and invite experts allied with the government party to appear on these programs. Transparency and accountability of the board meetings of TRT, the state-run audio-visual media, were eliminated by an amendment to the relevant regulation just before the early presidential and parliamentary elections in April 2018.

Journalists, who have reported on allegations of corruption in government and the judiciary, have become targets of judicial investigations (facing possible imprisonment) for “bringing the economy into disrepute.” In a three-month period during 2019, at least 40 journalists, columnists and editorial office personnel were fired or forced to resign. Many media organizations of various political tendencies have parted ways with long-time columnists who refused to “adapt to the new political period.” In November 2019, 45 journalist and media workers were dismissed from Hürriyet daily newspaper as a reaction to unionization.

Most concerning for many observers have been the unprecedented expansion in the range of reasons given for journalists’ arrests, the massive phone-tapping campaign and the contempt shown for source confidentiality. Intimidating statements by politicians and lawsuits launched against journalists critical of the government, combined with the media sector’s ownership structure, have led to widespread self-censorship by media owners and journalists. In some cases, journalists have simply been fired.

Journalists and media organizations critical of the government have faced threats, physical attacks and fines. TV and radio channels have been closed, and access to airtime has been restricted. As of November 2019, a total of 115 journalists and other media workers had been imprisoned. Some of the convicted journalists (e.g., Ahmet Altan and Nazlı Ilıcak), many detained during the 2016 to 2018 state of emergency, were released from jail for various reasons, although several were immediately detained again.

The 2019 judicial reform package added a new provision to anti-terror law (Article 7), which states that “statements of opinion that do not exceed the limits of reporting or for the purpose of criticism shall not constitute a crime.” This is considered a mark of progress for freedom of expression.

According to an amendment to the Law No. 5651 on Regulation of Publications on the Internet and Combating Crimes Committed by Means of Such Publication (also known as the Internet Law), authorized access blocks should be imposed on a specific URL rather than an entire website. However, when placing an access block on a specific URL is technically impossible, an entire website can be blocked.

New regulations will enable the Supreme Board of Radio and Television (RTÜK) to control online broadcasters, threatening the existence of online broadcasters through a costly and opaque licensing regime.

As of September 2019, RTÜK had started to monitor online broadcasting and online broadcasters must be licensed. In 2018, 2,950 online news reports, 77 Twitter posts, 22 Facebook posts, five Facebook videos and 10 websites were blocked; three broadcast bans (one temporary) were issued. Throughout 2018, eight newspapers, two TV channels, two letters, one report, one TV series and one interview were censored. During the first nine months of 2019, RTÜK banned 21 broadcasts, and fined 48 TV channels for the news reports, films or programs they had broadcast. In addition, Wikipedia continues to be censored; one newspaper was banned; and one website, one TV program, one advertising movie and one election propaganda video were censored. The RSF 2019 Index ranks Turkey 157 out of 180 countries, with a score of 52.81.

Under the existing political, regulatory and market conditions, Turkish media cannot act as an independent and critical force for democratic and sustainable societal development. Consequently, media remains the least trusted institution in public opinion polls.

Citations:
European Commission, Turkey 2019 Report, Brussels, 29.5.2019, https://ec.europa.eu/neighbourhood-enlargement/sites/near/files/20190529-turkey- report.pdf (accessed 1 November 2019)

Reporters Without Borders, 2019 World Press Freedom Index, https://rsf.org/en/ranking (accessed 1 November 2019)

2019 Edelman Trust Barometer Global Report, https://www.edelman.com/sites/g/files/aatuss191/files/2019-03/2019_Edelman_Trust_Barometer_Global_Report.pdf (accessed 1 November 2019)

N. Newman and et al., Reuters Institute Digital News Reports 2019, https://reutersinstitute.politics.ox.ac.uk/sites/default/files/2019-06/DNR_2019_FINAL_0.pdf (accessed 1 November 2019)

Freedom House, Freedom and the Media 2019: A Downward Spiral, https://freedomhouse.org/sites/default/files/FINAL07162019_Freedom_And_The_Media _2019_Report.pdf (accessed 1 November 2019)

“4 soruda internete RTÜK denetimi düzenlemesi,” 22 March 2018, https://www.bbc.com/turkce/haberler-turkiye-43494950 (accessed 1 November 2018)

BİA Media Monitoring Report 2018: One Year of Journalists, Media, https://bianet.org/english/media/205640-bia-media-monitoring-report-2018-one-year-of-the-journalist-and-the-media (accessed 1 November 2019)

Judicial Reform Package on Pretrial Detention, Freedom of Expression Passes in Parliament, BİANET, 17 October 2019, http://bianet.org/english/politics/214573-judicial-reform-package-on-pre-trial-detention-freedom-of-expression-passes-in-parliament (accessed 1 November 2019)

BİANET Media Monitoring reports 2019 (first three-quarters), http://bianet.org/english/media (accessed 1 November 2019)

“Resmi Gazete’de yayımlanan yargı reformu paketi neleri kapsıyor?” 26 October 2019, https://tr.euronews.com/2019/10/26/yarg-reformu-paketi-resmi-gazete-de-yayimlandi (accessed 1 November 2019)

“Türkiye’de internet yayınlarına RTÜK denetimi başladı,” 2 September 2019,https://www.dw.com/tr/t%C3%BCrkiyede-internet-yay%C4%B1nlar%C4%B1na-rt%C3%BCk-denetimi-ba%C5%9Flad%C4%B1/a-50261311 (accessed 1 November 2019)

To what extent are the media characterized by an ownership structure that ensures a pluralism of opinions?

10
 9

Diversified ownership structures characterize both the electronic and print media market, providing a well-balanced pluralism of opinions. Effective anti-monopoly policies and impartial, open public media guarantee a pluralism of opinions.
 8
 7
 6


Diversified ownership structures prevail in the electronic and print media market. Public media compensate for deficiencies or biases in private media reporting by representing a wider range of opinions.
 5
 4
 3


Oligopolistic ownership structures characterize either the electronic or the print media market. Important opinions are represented but there are no or only weak institutional guarantees against the predominance of certain opinions.
 2
 1

Oligopolistic ownership structures characterize both the electronic and the print media market. Few companies dominate the media, most programs are biased, and there is evidence that certain opinions are not published or are marginalized.
Media Pluralism
1
Turkey has some level of preparation in the area of information society and media. The lack of transparency in media funding, the growing influence of political interests on editorial policies, the concentration of media ownership, the shrinking space for pluralism, the increasing restrictions on freedom of expression and the lack of independence of regulatory authorities remain key concerns.

Turkey Report, a media monitor, finds that there are high risks for three indicators of media pluralism (regulation, political independence and social inclusiveness) and a medium risk to market plurality. On the other hand, a free and independent media is one of the components of non-governmental checks on governmental power.

While small-scale digital-born brands continue to provide alternative perspectives, they have not managed to achieve significant reach. Many showcase stories from international brands (e.g., BBC Turkish, DW and Euronews) as they have limited staff to generate original content. Other perspectives are provided by foreign media outlets, such as Russian-backed Sputnik and a new Turkish version of the (UK-based) Independent, financed and run by the Saudi Research and Marketing Group, which has close links to the Saudi royal family.

Critics of the government – including media companies, businesspeople and political opponents – argued that this has had a negative effect on the overall business environment. This has sparked concern for media pluralism in Turkey. Most critical private media groups have been turned through opaque or coerced changes in ownership into pro-government trustees by means of the ruling party’s direct and indirect pressure. The sale of the Doğan media outlet to Demirören media group, which has shown a pro-governmental business profile, reshuffled the outlet’s structure. Moreover, Habertürk and Vatan, due to reduced sales and rising costs, stopped the print edition and started only publishing content online in mid-2018 in order to avoid closing down or being sold to pro-government outlets.

Bianet Report found that media ownership lacks transparency and no information is available about the concentration of media ownership. The economic interests of media owners constitute a key problem for media freedoms. Although Article 29 of Law 3984 restricts media owners’ shareholder rights, owners with stakes in other business sectors have still used media coverage to promote their outside business interests. The number of outlets belonging to the so-called Pool Media (Havuz Medyası) – media owned by government-allied businesses, which the government can use – has expanded. Adopted in 2011, Law 6112 increased the maximum allowable foreign-ownership stake in media companies from 25% to 50%, with the condition that a single foreign investor cannot invest in more than two enterprises. Foreign companies still cannot be majority stakeholders in domestic media companies.

Citations:
BİANET Media Monitoring reports 2019 (first three-quarters), http://bianet.org/english/media (accessed 1 November 2019)

European Commission, Turkey 2019 Report, Brussels, 29.5.2019, https://ec.europa.eu/neighbourhood-enlargement/sites/near/files/20190529-turkey- report.pdf (accessed 1 November 2019)

Media Pluralism Monitor Results 2016, Turkey, http://cmpf.eui.eu/media-pluralism-monitor/mpm-2016-results/turkey/ (accessed 1 November 2017)

N. Newman and et al., Reuters Institute Digital News Reports 2019, https://reutersinstitute.politics.ox.ac.uk/sites/default/files/2019-06/DNR_2019_ FINAL_0.pdf (accessed 1 November 2019)

Y. İnceoğlu et al., Monitoring Media Pluralism in Europe: Application of the Media Pluralism Monitor 2017 in the European Union, FYROM, Serbia & Turkey, Country Report: Turkey, https://cmpf.eui.eu/wp-content/uploads/2018/11/Turkey_MPM2017_country-report.pdf (accessed 1 November 2019)

“Türkiye’de medyayı kim kontrol ediyor?” https://tr.euronews.com/2019/05/03/medya-sahipligi-turkiye-de-medyayi-kim-kontrol-ediyor- (accessed 1 November 2019)

To what extent can citizens obtain official information?

10
 9

Legal regulations guarantee free and easy access to official information, contain few, reasonable restrictions, and there are effective mechanisms of appeal and oversight enabling citizens to access information.
 8
 7
 6


Access to official information is regulated by law. Most restrictions are justified, but access is sometimes complicated by bureaucratic procedures. Existing appeal and oversight mechanisms permit citizens to enforce their right of access.
 5
 4
 3


Access to official information is partially regulated by law, but complicated by bureaucratic procedures and some poorly justified restrictions. Existing appeal and oversight mechanisms are often ineffective.
 2
 1

Access to official information is not regulated by law; there are many restrictions of access, bureaucratic procedures and no or ineffective mechanisms of enforcement.
Access to Government Information
4
Access to information rights and complaint mechanisms are not used effectively. A total of 1.733 million applications for information based on Law 4982 were submitted to public institutions in 2018. According to official information, 82% of requests resulted in the full provision of the requested information, 7.8% resulted in partial information or a negative response, and 7.6% were rejected. Of the rejected applications, 783 were taken to court on appeal. A total of 35,875 applications were found to concern state secrets or private issues, while 192,840 applications were referred to other organizations. The government’s annual report on access to information requests does not include details about the subject of the applications.

The Board of Review for Access to Information, which is attached to the presidency, examines administrative decisions rendered under Law No. 4982 (Articles 6 and 17). The board received a total of 1,159 objection applications in 2018. Of the applications, the board rejected 563 because the relevant public institutions had provided a proper response to the applicants. Meanwhile, 40 applications were accepted, 74 were partially accepted and 107 procedurally accepted.

Following the abolishment of the Prime Minister’s Office in July 2018, the Prime Minister’s Communication Center (BİMER) was united with CİMER (Presidential Communication Center) on 10 July 2018. Since July 2018, the center has received about 3 million applications, of which 49% are complaints.

Citizens’ rights to administrative justice and right to seek compensation remain problematic, and the backlog of cases has increased as a result of the measures taken under the state of emergency. The WJP 2019 report scored Turkey 0.42 for the right to information, which is above global average. Though for complaint mechanisms, Turkey scored below average.

Citations:
European Commission, Turkey 2019 Report, Brussels, 29.5.2019, https://ec.europa.eu/neighbourhood-enlargement/sites/near/files/20190529-turkey- report.pdf (accessed 1 November 2019)

World Justice Project, Rule of Law Index 2019, https://worldjusticeproject.org/sites/default/files/documents/ROLI-2019-Reduced. pdf (accessed 1 November 2019)

TBMM Başkanlığı Basın, Yayın ve Halkla İlişkiler Başkanlığı Bilgi Edinme Hakkının Kullanılması Bakımından 2018 Yılına İlişkin Değerlendirme,
https://www.tbmm.gov.tr/bilgiedinme/2018_raporu_baskanlik_aciklamasi.pdf (accessed 1 November 2019)

Türkiye Büyük Millet Meclisi Başkanlığı, 2018 Yılı Bilgi Edinme Genel Raporu, https://www.tbmm.gov.tr/bilgiedinme/2018_yili_degerlendirme_raporu.pdf (accessed 1 November 2019)

CİMER’e 1 yılda 3 milyona yakın başvuru yapıldı, 24 July 2019, https://www.trthaber.com/haber/gundem/cimere-1-yilda-3-milyona-yakin-basvuru-yapildi-424254.html (accessed 1 November 2019)

Civil Rights and Political Liberties

#41

To what extent does the state respect and protect civil rights and how effectively are citizens protected by courts against infringements of their rights?

10
 9

All state institutions respect and effectively protect civil rights. Citizens are effectively protected by courts against infringements of their rights. Infringements present an extreme exception.
 8
 7
 6


The state respects and protects rights, with few infringements. Courts provide protection.
 5
 4
 3


Despite formal protection, frequent infringements of civil rights occur and court protection often proves ineffective.
 2
 1

State institutions respect civil rights only formally, and civil rights are frequently violated. Court protection is not effective.
Civil Rights
3
While Article 10 of the constitution guarantees equality before the law, and Article 12 enshrines fundamental rights and freedoms, concerns over shortcomings in judicial proceedings remain, including limited access by defense attorneys to prosecution files, lengthy pretrial detentions, and excessively long and catch-all indictments. This relates especially to numerous cases involving Kurdish activists, journalists, union members, students, military officers, and policy and security personal being tried for alleged violations of the Anti-Terror Law.

Article 148 of the constitution states that anyone who believes his or her human or civil rights, as defined in the European Convention on Human Rights (ECHR), have been infringed upon by a public authority has the right to apply to the Constitutional Court, after exhausting other administrative and judicial remedies. Individual applications must be filed within 30 days after the notification of the final proceeding that exhausts other legal remedies. Since September 2012, the Constitutional Court has accepted individual petitions, if the right to a fair trial has been violated. Between September 2012 and December 2018, a total of 212,665 individual applications were received and 172,800 applications were concluded by the court. However, the court found that in only 7,140 applications had at least one right been violated. In 2018, the number of applications reached 38,186 and, in total, 35,395 applications were concluded violations, of which the court decided 1,197 cases involved a violation of the right to a fair trial. The cost of making an individual application was about €58 in 2019.

The European Court of Human Rights received a total of 290 cases against Turkey between January 2018 and September 2019. In total, 836 remained pending and 528 cases had been closed by the court as of September 2019. The court fined Turkey a total of €3 million in 2018 and 2019. Historically, Turkey is the country most condemned by the court for violating freedom of thought and expression, and ranked second after the Russian Federation overall.

According to the annual report of the OHAL Transactions Review Commission published in January 2019, 131,922 measures were adopted under the state of emergency decree laws. As a result of these measures, at least 125,678 public officials were dismissed, 270 student scholarships were canceled, 2,761 institutions and organizations were closed, and 3,213 government administrative staff were demoted. In addition, a total of 204 media organizations were shut down during the state of emergency. According to research on the social costs of the state of emergency, the actual number of those victimized by Decree Law 693 exceeded 250,000.

The National Human Rights and Equality Institution (NHREI) and the Ombudsman institution were established to deal with citizens’ complaints including human rights violations. However, they are in the process of being improved in accordance with international standards. Turkey is a signatory to most international human rights conventions, but has not signed some significant optional protocols in this area (e.g., a third optional protocol to the Convention on the Rights of the Child).

The 2019 Judicial Reform Strategy, which was prepared by the Ministry of Justice with the participation of other parties, consists of nine objectives, 63 targets and 256 activities. The strategy was announced to the public on 30 May 2019. The Law on Criminal Procedure No. 7188 and the Law on Amendments to Certain Laws, which details some of the arrangements for realizing objectives and targets defined in the 2019 Judicial Reform Strategy, was published in the Official Gazette on 24 October 2019.

Citations:
European Commission, Turkey 2019 Report, Brussels, 29.5.2019, https://ec.europa.eu/neighbourhood-enlargement/sites/near/files/20190529-turkey- report.pdf (accessed 1 November 2019)

World Justice Project, Rule of Law Index 2019, https://worldjusticeproject.org/sites/default/files/documents/ROLI-2019-Reduced. pdf (accessed 1 November 2019)

TC Anayasa Mahkemesi Bireysel Başvuru Kararları (23.09.2012-31.12.2018), https://www.anayasa.gov.tr/media/5601/bb_istatistik_2018.pdf (accessed 1 November 2019)

ECHR, Country Fact Sheet Turkey, https://rm.coe.int/1680709767 (accessed 1 November 2019)

Olağanüstü Hal İşlemleri İnceleme Komisyonu Kararları Hakkında Duyuru (25.10.2019), https://ohalkomisyonu.tccb.gov.tr/ (accessed 1 November 2019)

“Türkiye, AİHM tarihinde düşünce ve ifade özgürlüğünden en fazla mahkum olan ülke,” 10 July 2019, https://tr.euronews.com/2019/07/10/turkiye-aihm-de-dusunce-ve-ifade-ozgurlugunden-en-fazla-mahkum-olan-ulke-oldu (accessed 1 November 2019)

“Verilerle 15 Temmuz sonrası ve OHAL süreci,” https://tr.euronews.com/2019/07/12/verilerle-15-temmuz-sonras-ve-ohal-sureci (accessed 1 November 2019)

To what extent does the state concede and protect political liberties?

10
 9

All state institutions concede and effectively protect political liberties.
 8
 7
 6


All state institutions for the most part concede and protect political liberties. There are only few infringements.
 5
 4
 3


State institutions concede political liberties but infringements occur regularly in practice.
 2
 1

Political liberties are unsatisfactory codified and frequently violated.
Political Liberties
2
On 24 October 2019, the parliament passed the first law proposal prepared by the Ministry of Justice with the participation of related parties, which addresses the objectives and targets defined in the 2019 Judicial Reform Strategy. The law introduces important regulations to strengthen the rule of law. A provision added to the Anti-Terror Law provides that statements of opinion, which do not exceed the limits of reporting or are made for the purpose of criticism, should not constitute a crime. The maximum periods of pretrial detention have been revised. The period of pretrial detention is limited to six months if the offense is not within the jurisdiction of the higher criminal court, and one year if the offense falls within the court’s jurisdiction. For some offenses (e.g., terrorism), this period can be six months to one year, which can be extended for an additional six months on the basis of justification for adults. Though the period of detention allowed for children is shorter.

The Action Plan for the Prevention of Violations of the European Convention on Human Rights, which was adopted in 2014, expired in 2019. The preparation of a new Human Rights Action Plan continues with the participation of related parties under the coordination of the Ministry of Justice.

The constitutional amendment to parliamentary immunities adopted in May 2016 lifted immunity for a large number of deputies, and resulted in the detention and arrest of several HDP members of parliament, including the two party co-chairs in November 2016. The subsequent emergency rule saw the further arrest thousands of HDP members as well as 16 HDP lawmakers. In the case of Selahattin Demirtaş, the pro-Kurdish Peoples’ Democratic Party (HDP) co-chair and 2018 presidential candidate, who had been detained since 4 November 2016, the ECHR found Turkey guilty of stifling pluralism and limiting freedom of political debate, and unanimously demanded that the Turkish government take all necessary measures to end the applicant’s pretrial detention. Demirtaş was subsequently convicted of terrorism, and sentenced to four years and eight months in prison in December 2018, and to a further one year and three months in prison in October 2019. Though the latter punishment has since been abrogated. Eren Erdem, a former Republican People’s Party (CHP) lawmaker, was sentenced to four years and two months in prison for supporting a terrorist organization, but was released on 30 October 2019.

The Ombudsman, the National Human Rights and Equality Institution, prosecutors’ offices, criminal courts and parliament’s Human Rights Commission are authorized to investigate reports of abuses perpetrated by the security forces, including killings, torture, mistreatment and excessive use of force. However, the enforcement of rights is undermined by the fragmentation and limited independence of public institutions responsible for protecting human rights and freedoms, and by the lack of judicial independence.

Citations:
European Commission, Turkey 2019 Report, Brussels, 29.5.2019, https://ec.europa.eu/neighbourhood-enlargement/sites/near/files/20190529-turkey- report.pdf (accessed 1 November 2019)

UN OHCHR, Turkey: Report on the impact of the state of emergency on human rights in Turkey, including an update on the South-East, January – December 2017, March 2018, https://www.ohchr.org/Documents/Countries/TR/2018-03-19_Second_OHCHR_Turkey_Report.pdf (accessed 1 November 2018)

TC Cumhurbaşkanlığı Strateji ve Bütçe Başkanlığı, 100. Yıl Türkiye Planı, 11. Kalkınma Planı (2019-2023), http://www.sbb.gov.tr/wp-content/uploads/2019/11/ON_BIRINCI_KALKINMA-PLANI_2019-2023.pdf (accessed 1 November 2019)

World Justice Project, Rule of Law Index 2019, https://worldjusticeproject.org/sites/default/files/documents/ROLI-2019-Reduced. pdf (accessed 1 November 2019)

TBMM İnsan Hakları İnceleme Komisyonu, 26. Yasama Dönemi II. Devre Faaliyet Raporu 6 Aralık 2017 – 24 Haziran 2018, https://www.tbmm.gov.tr/komisyon/insanhaklari/docs/2018/ihik_faaliyet_raporu_25072018.pdf (accessed 1 November 2018)

“Verilerle 15 Temmuz sonrası ve OHAL süreci,” 15 July 2019, https://tr.euronews.com/2019/07/12/verilerle-15-temmuz-sonras-ve-ohal-sureci (accessed 1 November 2019)

The Human Rights Watch, Turkey Events of 2018, https://www.hrw.org/world-report/2019/country-chapters/turkey (accessed 1 November 2019)

Freedom House, Freedom in the World 2019, Turkey Profile https://freedomhouse.org/report/freedom-world/2019/turkey (accessed 1 November 2019)

Freedom House, Freedom and the Media 2019: A Downward Spiral, https://freedomhouse.org/sites/default/files/FINAL07162019_Freedom_And_The_Media_2019_Report.pdf (accessed 1 November 2019)

Freedom House, Freedom on the Net 2018, Turkey Profile, https://freedomhouse.org/report/freedom-net/2018/turkey (accessed 1 November 2019)

“Eren Erdem hakkında tahliye kararı,” Birgün dailynewspaper, 31 October 2019, https://www.birgun.net/haber/eren-erdem-hakkinda-tahliye-karari-274657 (accessed 1 November 2019)

How effectively does the state protect against different forms of discrimination?

10
 9

State institutions effectively protect against and actively prevent discrimination. Cases of discrimination are extremely rare.
 8
 7
 6


State anti-discrimination protections are moderately successful. Few cases of discrimination are observed.
 5
 4
 3


State anti-discrimination efforts show limited success. Many cases of discrimination can be observed.
 2
 1

The state does not offer effective protection against discrimination. Discrimination is widespread in the public sector and in society.
Non-discrimination
4
While Article 10 of the constitution guarantees equality before the law, irrespective of language, race, sex, political opinion or religion, the political reality in Turkey differs significantly from this constitutional ideal. Gender disparities still exist in areas such as decision-making, employment, education and health outcomes. Gender-based violence is widespread. The Türkiye İnsan Hakları ve Eşitlik Kurumu (NHREI), which is in charge of applying anti-discrimination legislation, finalized only 35 decisions between January 2018 and October 2019. Hate crime legislation is not in line with international standards and does not cover hate offenses based on sexual orientation. Turkey has ratified the Council of Europe Istanbul Convention on preventing and combating violence against women, domestic violence and gender-related violence. However, hate speech and discrimination against LGBT communities, who do not have any legal protections, are serious problems.

The executive’s political discourse discriminates and insults opposition groups, including the CHP (the main opposition party), the HDP (the pro-Kurdish party), journalists, academics and LGBT communities. Insulting the president is a crime punishable by up to four years in prison. In 2018, 2,462 persons were convicted of “insulting” President Erdoğan. During the last four years, a total of 5,683 persons were found guilty of this “crime.”

The principle of non-discrimination is not sufficiently protected by law nor enforced in practice. Turkey did not ratify Protocol 12 of the ECHR, prohibiting discrimination. The definition of hate crime is excessively narrow, while the Criminal Code does not explicitly provide that racist, homophobic or transphobic motivations constitute an aggravating circumstance. Core elements of the anti-discrimination law are not in line with recommendations from the European Commission against Racism and Intolerance.

The use of Kurdish and some other languages in formal education is gradually becoming more common. However, there are no anti-discrimination employment or social policy strategies or action plans in place.

The Ministry for Family and Social Policies adopted a national action plan to combat violence against women. Recently, the ministry announced the Strategic Document and Action Plan for Strengthening Women. However, despite rising public awareness, the incidence of violence against women in Turkey has undergone a dramatic and rapid increase over the last decade.

On the rights of persons with disabilities, Turkey continues to promote inclusive education services. The challenges of child poverty, child labor and child marriage persist. Similarly, gaps in access to quality education, and protection from violence and abuse persist, particularly for the most vulnerable groups, including Roma.

Citations:
European Commission, Turkey 2019 Report, Brussels, 29.5.2019, https://ec.europa.eu/neighbourhood-enlargement/sites/near/files/20190529-turkey- report.pdf (accessed 1 November 2019)

Türkiye İnsan Hakları ve Eşitlik Kurumu, 2018 ve 2019 Kararları, https://www.tihek.gov.tr/kategori/2019-kurul-kararlari/page/3 (accessed 1 November 2019)

World Justice Project, Rule of Law Index 2019, https://worldjusticeproject.org/sites/default/files/documents/ROLI-2019-Reduced. pdf (accessed 1 November 2019)

Freedom House, Freedom in the World 2018, Turkey Profile https://freedomhouse.org/report/freedom-world/2018/turkey (accessed 1 November 2018)

Şiddetten Ölen Kadınlar İçin Dijital Sayaç, anitsayac.com/ (accessed 1 November 2019)

Kadının Güçlenmesi Strateji Belgesi ve Eylem Planı (2018-2023), https://ailevecalisma.gov.tr/ksgm/ulusal-eylem-planlari/kadinin-guclenmesi-strateji-belgesi-ve-eylem-plani-2018-2023/ (accessed 1 November 2019)

Hate Speech Report: Jews, Armenians and Syrian Refugees Most Targeted Groups in 2018, 13 September 2019, http://bianet.org/english/minorities/213010-hate-speech-report-jews-armenians-and-syrian-refugees-most-targeted-groups-in-2018 (accessed 1 November 2019)

Cumhurbaşkanına Hakaret Hükmü, https://www.dogrulukpayi.com/bulten/2018-yilinda-cumhurbaskanina-hakaretten-kac-kisi-sanik-oldu (accessed 1 November 2019)

Rule of Law

#40

To what extent do government and administration act on the basis of and in accordance with legal provisions to provide legal certainty?

10
 9

Government and administration act predictably, on the basis of and in accordance with legal provisions. Legal regulations are consistent and transparent, ensuring legal certainty.
 8
 7
 6


Government and administration rarely make unpredictable decisions. Legal regulations are consistent, but leave a large scope of discretion to the government or administration.
 5
 4
 3


Government and administration sometimes make unpredictable decisions that go beyond given legal bases or do not conform to existing legal regulations. Some legal regulations are inconsistent and contradictory.
 2
 1

Government and administration often make unpredictable decisions that lack a legal basis or ignore existing legal regulations. Legal regulations are inconsistent, full of loopholes and contradict each other.
Legal Certainty
3
Turkey is in an unsettled state of political transformation, as the executive system transitions from a state of emergency to a presidential system.

Under the state of emergency, 36 decrees were issued, which restricted civil, political and defense rights, and expanded powers for the police and prosecutors. These decrees facilitated the dismissal of more than 152,000 civil servants, including academics, teachers and public officials. The transition to a presidential institutional model was introduced by a series of decrees (i.e., state of emergency decrees and presidential decrees) rather than through legislation, as is required by the constitution. The restructuring of public administration will take some time and increase uncertainty.

Following the state of emergency and during the ongoing transition toward presidentialism, the absence of a law concerning general administrative procedures, which would provide citizens and businesses with greater legal certainty, complicates administrative procedures and exacerbates administrative burdens. The main factors affecting legal certainty in public administration are a lack of issue-specific regulations, the misinterpretation of regulations by administrative authorities (mainly on political grounds) and unconstitutional regulations that are adopted by parliament or issued by the executive. In addition, the large number of amendments made to some basic laws under certain circumstances have led to a lack of consistency. High-profile prosecutions can follow unpredictable courses. For example, after prisoners associated with the clandestine Ergenekon network were released, they were called back for retrial. Legal as well as judicial instruments are sometimes used against government opponents, especially those in the media.

The number of cases annulled by the Constitutional Court has been increasing since 2015. In 2018, the court annulled 87 out of 119 cases. Unconstitutional laws cause double standards and lead to unfair practices in daily life.

Citations:
European Commission, Turkey 2019 Report, Brussels, 29.5.2019, https://ec.europa.eu/neighbourhood-enlargement/sites/near/files/20190529-turkey- report.pdf (accessed 1 November 2019)

TC Anayasa Mahkemesi Yıllık Rapor 2018, https://www.anayasa.gov.tr/tr/yayinlar/yillik-raporlar/ (accessed 1 November 2019)

World Justice Project, Insight on Access to Justice 2019, https://worldjusticeproject.org/sites/default/files/documents/WJP-A2J-2019.pdf (accessed 1 November 2019)

“TÜSİAD’dan yeni vergilere tepki: Eşitlik ve adalet ilkesine uygun değil,” Milli Gazete, 13 November 2019, https://www.milligazete.com.tr/haber/3306324/tusiaddan-yeni-vergilere-tepki-esitlik-ve-adalet-ilkesine-uygun-degil (accessed 1 November 2019)

To what extent do independent courts control whether government and administration act in conformity with the law?

10
 9

Independent courts effectively review executive action and ensure that the government and administration act in conformity with the law.
 8
 7
 6


Independent courts usually manage to control whether the government and administration act in conformity with the law.
 5
 4
 3


Courts are independent, but often fail to ensure legal compliance.
 2
 1

Courts are biased for or against the incumbent government and lack effective control.
Judicial Review
4
Several articles in the Turkish constitution ensure that the government and public administration act in accordance with legal provisions, and that citizens are protected from the state. Article 36 guarantees citizens the freedom to claim rights and Article 37 concedes the guarantee of lawful judgment. According to Article 125, administrative procedures and actions are subject to administrative review.

The European Commission’s 2019 report observes that judicial staff are still being dismissed or forcibly transferred, and that this risks engendering widespread self-censorship among judges and prosecutors. This may weaken the judiciary as a whole, its independence and the separation of powers. No measures were taken to restore legal guarantees to ensure the independence of the judiciary from the executive or to strengthen the independence of the Council of Judges and Prosecutors. No changes were made to the institution of criminal judges of peace, which risks becoming a parallel system. The recommendations from earlier reports therefore remain valid. There is no human resources strategy in place for the judiciary, which struggles to effectively perform its tasks in the wake of a substantial reduction in experienced personnel. The recruitment of a large number of inexperienced judges and prosecutors using fast-track procedures without adequate pre-service and in-service training has failed to remedy these concerns.

In 2018, the Council of State – which consists of 15 departments, two plenary sessions (one for administrative law divisions and one for the tax law chambers) and the country’s highest administrative court – reviewed 135,368 cases, while a further 165,079 cases remain pending for 2019. The average length of time spent on each case was estimated to be 565 days. Compared to 2017, this long duration was due to problems in integrating new members and a lack of sufficient senior judges. As of November 2019, the cumulative number of administrative cases – transferred from 2018 and new cases arrived in 2019 – reached 514,292, of which 266,129 are still pending. Over the same period, a total of 443,791 administrative cases were reviewed. The Council of State’s 2018 report admits to major weaknesses in administrative jurisdiction, including a lack of qualified legal personnel, lengthy trials, the unpredictability of trial periods and excessive workload.

The Constitutional Court, as the Supreme Court, dealt with a total of 204 cases (annulments and objections) and concluded 119 cases in 2018. The court received 87 annulment cases, of which six were approved, 41 were rejected and one was united. The court rejected 54 out of 77 objections, annulled 11 and united six. The total number of individual fair trial appeals reached 38,186 in 2018, of which 35,395 were concluded. The cumulative number of pending applications is 39,285.

According to the amended constitution (Article 105), a parliamentary investigation can be opened against the president if an absolute majority in the parliament votes that the president has likely committed a crime. Criminal investigations against the general chief of staff and other army commanders can be initiated with the prime minister’s approval. Moreover, the trial of the undersecretary of the National Intelligence Service (MİT) is subject to the approval of the president. Acts within the president’s area of competence, decisions of the Supreme Military Council (excluding acts relating to promotion or retirement), and decisions of the Council of Judges and Public Prosecutors (except for dismissals of public officials) are open to judicial review.

The Justice Academy of Turkey was re-established by presidential decree, after it had previously been closed under the state of emergency.

Citations:
European Commission, Turkey 2019 Report, Brussels, 29.5.2019, https://ec.europa.eu/neighbourhood-enlargement/sites/near/files/20190529-turkey- report.pdf (accessed 1 November 2019)

European Commission for Democracy Through Law (Venice Commission) Turkey Opinion on the Amendments to the Constitution Adopted By the Grand National Assembly on 21 January 2017 and to Be Submitted to A National Referendum on 16 April 2017, http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=cdl-ad(2017)00 5-e (1 November 2018)

European judicial systems Efficiency and quality of justice CEPEJ STUDIES No. 26, 2018 edition (2016 data), https://rm.coe.int/rapport-avec-couv-18-09-2018-en/16808def9c (accessed 1 November 2019)

TC Anayasa Mahkemesi Yıllık Rapor 2018, https://www.anayasa.gov.tr/tr/yayinlar/yillik-raporlar/ (accessed 1 November 2019)

TC Danıştay Başkanlığı 2018 Yılı İdari Faailyet Raporu, https://www.danistay.gov.tr/upload/2018-Yilii-Idare-Faaliyet-Raporu.pdf (accessed 1 November 2019)

TC Danıştay Başkanlığı 2018 Yılı Sonuçlanan ve 2019 Yılına Devreden Dosya Sayıları, https://www.danistay.gov.tr/upload/istatistikler-2016-2017-2018/2018/2018-1.pdf (accessed 1 November 2019)

TC Yargıtay Başkanlığı 2018 Yılı Faaliyet Raporu, https://www.yargitay.gov.tr/documents/ek1-1557233459.pdf (accessed 1 November 2019)

Yargıtay Ceza ve Hukuk Daireleri İle Cumhuriyet Başsavcılığının 2018 Yılına Ait İş Durumunu Gösterir Çizelge, https://www.yargitay.gov.tr/documents/2018.pdf (accessed 1 November 2019)

HSK 2018 Yılı Faaliyet Raporu, http://www.hsk.gov.tr/Eklentiler/Dosyalar/2018-FAALiYET%20RAPORU.pdf (accessed 1 November 2019)

03.09.2019 Tarihi İtibariyle Hakim ve Savcılara İlişkin İstatistiki Bilgiler, https://www.hsk.gov.tr/Eklentiler/Dosyalar/a062014e-6b7b-4ff7-bc47-4ba6a4478b6b. pdf (accessed 1 November 2019)

YOK, Number of Students & Teachiıng Staff By Educatıonal Institutions, 2018 – 2019 https://istatistik.yok.gov.tr/ (accessed 1 November 2019)

To what extent does the process of appointing (supreme or constitutional court) justices guarantee the independence of the judiciary?

10
 9

Justices are appointed in a cooperative appointment process with special majority requirements.
 8
 7
 6


Justices are exclusively appointed by different bodies with special majority requirements or in a cooperative selection process without special majority requirements.
 5
 4
 3


Justices are exclusively appointed by different bodies without special majority requirements.
 2
 1

All judges are appointed exclusively by a single body irrespective of other institutions.
Appointment of Justices
3
To be appointed to the Constitutional Court, a candidate must be either a member of the teaching staff of an institution of higher education, senior administrative officer, lawyer, first-degree judge or Constitutional Court rapporteur who has served at least five years; be over the age of 45; have completed higher education; and have worked for at least 20 years. Constitutional Court members serve 12-year terms and cannot be re-elected. A recent scholarly article stated that the Constitutional Court is highly politicized, its reviews have an ideological bias and its judges are not independent, as can be also seen in previous recruitment patterns. The appointment of Constitutional Court judges does not take place on the basis of general liberal-democratic standards, such as cooperative appointment and special majority regulations. The Constitutional Court has 17 members, as outlined by Article 146 of the 2010 constitutional referendum, whose members are nominated or elected from other higher courts by the country’s president, the parliament and professional groups. Under current conditions, this creates opportunities for the president and his political network to directly influence the executive, the parliament and the judiciary. In addition, the armed forces continue to wield influence over the civilian judiciary, as two military judges are members of the Constitutional Court.

Following the 2017 constitutional amendments, four members of the new Council of Judges and Prosecutors (HSK) were appointed directly by the president and seven members were elected by parliament. The HSK does not offer adequate safeguards for the independence of the judiciary and considerably increases political influence over the judiciary.

Since the coup attempt of 2016 and the subsequent transition from a state of emergency (OHAL) toward presidentialism, the Constitutional Court has not performed consistently in terms of defending political stability, and human and civil rights. The court declared its non-jurisdiction over presidential decrees during OHAL, and cases in which it failed to defend the rights of detained journalists and other oppositional forces went viral. In the case of the detained journalist Ahmet Altan, the European Court of Human Rights delivered a landmark decision in April 2019, which strongly disagreed with the Constitutional Court’s justification of Altan’s arrest.

Citations:
European Commission, Turkey 2019 Report, Brussels, 29.5.2019, https://ec.europa.eu/neighbourhood-enlargement/sites/near/files/20190529-turkey- report.pdf (accessed 1 November 2019)

Yargı Reformu Strateji Belgesi 2015, http://www.sgb.adalet.gov.tr/yargi_reformu_stratejisi.pdf (accessed 27 October 2015)

European Commission for Democracy Through Law (Venice Commission) Turkey Opinion on the Amendments to the Constitution Adopted By the Grand National Assembly on 21 January 2017 and to Be Submitted to A National Referendum on 16 April 2017, http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=cdl-ad(2017)005-e (accessed 1 November 2018)

HSK 2018 Yılı Faaliyet Raporu, http://www.hsk.gov.tr/Eklentiler/Dosyalar/2018-FAALiYET%20RAPORU.pdf (accessed 1 November 2019)

03.09.2019 Tarihi İtibariyle Hakim ve Savcılara İlişkin İstatistiki Bilgiler, https://www.hsk.gov.tr/Eklentiler/Dosyalar/a062014e-6b7b-4ff7-bc47-4ba6a4478b6b.pdf (accessed 1 November 2019)

T. Çetin and A. Pişkin, “Judicial Independence under Political Conflict: An Empirical Investigation of Constitutional Review in Turkey,”, January 2018, https://www.academia.edu/35753423/Judicial_Independence_under_Political_Conflict_An_Empirical_Investigation_of_Constitutional_Review_in_Turkey (accessed 1 November 2019)

Al-Monitor.com (2019) Turkish Constitutional Court caught red-handed, 24 April 2019, https://www.al-monitor.com/pulse/originals/2019/04/turkey-turkish-constitutional-court-caught-red-handed.html

To what extent are public officeholders prevented from abusing their position for private interests?

10
 9

Legal, political and public integrity mechanisms effectively prevent public officeholders from abusing their positions.
 8
 7
 6


Most integrity mechanisms function effectively and provide disincentives for public officeholders willing to abuse their positions.
 5
 4
 3


Some integrity mechanisms function, but do not effectively prevent public officeholders from abusing their positions.
 2
 1

Public officeholders can exploit their offices for private gain as they see fit without fear of legal consequences or adverse publicity.
Corruption Prevention
2
Both the legal framework and the institutional structure continues to allow undue executive influence in the investigation and prosecution of high-profile corruption cases, and need to be improved in line with international standards. The limited accountability and transparency of public institutions remains a matter of concern. The absence of a robust anti-corruption strategy and action plan is a sign of the lack of political will to decisively tackle corruption. The Council of Europe’s Group of States against Corruption (GRECO) recommendations have not been implemented.

An amendment to legislation relating to the audit court has limited the degree to which state expenditures can be audited. Public-procurement safeguards have been undermined by legislation that allows municipalities to operate in a less than transparent fashion. There are no codes of conduct guiding members of the legislature or judiciary in their actions. Conflicts of interest are not broadly deemed a concern and there is no effective asset-declaration system in place for elected or appointed public officials.

Law No. 657 on Civil Servants and Law No. 5393 on Municipalities, among other laws, include principles and rules of integrity. The asset-declaration system was established in 1990 by Law No. 3628 on Asset Disclosure and Fighting Bribery and Corruption. All public officials (legislative, executive and judicial, including nationally and locally elected officials) must disclose their assets within one month of taking office and renew their declaration every five years. However, these declarations are not made public unless there is an administrative or judicial investigation. The Regulation on Procedure and Basis of Application of the Civil Servants Ethical Behavior Principles defines civil service restrictions, conflicts of interest and incompatibilities. The Council of Ethics for Public Officials, which was attached to the Presidency of the Republic of Turkey in July 2018, lacks the power to enforce its decisions through disciplinary measures. Codes of ethics do not exist for military personnel or academics. Legal loopholes (e.g., regarding disclosure of gifts, financial interests and holdings, and foreign travel paid for by outside sources) in the code of ethics for parliamentarians remain in place.

There is a high risk of corruption in public procurement. Tender notices and business opportunities are published on the website of the Public Procurement Authority. Companies are recommended to use a specialized public procurement due diligence tool to mitigate corruption risks related to public procurement in Turkey. Procurement legislation has been amended 186 times since 2002.

Impunity for corrupt officials is widespread. Turkey’s land administration has made progress in terms of reducing corrupt processes – although most corruption allegations relate to construction projects, for which bids are rigged, permits are illegally awarded and bribes are paid by developers to government officials.

Turkey’s Financial Crimes Investigation Board (MASAK), established in 1996, is a main service unit of the Ministry of Finance within the scope of Law No. 5549 on Prevention of Laundering Proceeds of Crime and Financing of Terrorism. In 2018, based on suspicious transaction reports, 35,649 financial transactions with a total value of approximately TRY 800 million were suspended. The National Risk Assessment Report was prepared in compliance with Financial Action Task Force (FATF) methodology and submitted to FATF Secretariat at the end of 2018.

Turkey is a signatory to the United Nations Convention Against Corruption (UNCAC), the OECD Anti-Bribery Convention, and the Council of Europe’s Criminal Law Convention on Corruption and Civil Law Convention on Corruption. The UNCAC and the Council of Europe conventions are not effectively used. Turkey is a member of GRECO, but its recommendations are not fully implemented. Turkey’s authorities do not have an established track record of successfully prosecuting high-level corruption. Turkey needs to adopt an anti-corruption strategy, which reflects the political will to effectively address corruption, and is underpinned by a credible and realistic action plan.

Citations:
European Commission, Turkey 2019 Report, Brussels, 29.5.2019, https://ec.europa.eu/neighbourhood-enlargement/sites/near/files/20190529-turkey- report.pdf (accessed 1 November 2019)

TC Hazine ve Maliye Bakanlığı MASAK Faaliyet Raporu 2018, https://ms.hmb.gov.tr/uploads/2019/09/FAAL%C4%B0YET-RAPORU-v7.pdf (accessed 1 November 2019)

World Justice Project, Rule of Law Index 2019, https://worldjusticeproject.org/sites/default/files/documents/ROLI-2019-Reduced. pdf (accessed 1 November 2019)

Transparency International, Corruption Perception Index 2018, https://www.transparency.org/country/TUR (accessed 1 November 2019)

HSK Kararı, Türk Yargı Etiği Bildirgesi, https://www.resmigazete.gov.tr/eskiler/2019/03/20190314-4.pdf (accessed 1 November 2019)

Business Anti Corruption Portal, Turkey Corruption Report, https://www.ganintegrity.com/portal/country-profiles/turkey/ (accessed 1 November 2019)

The Global Competitiveness Report 2019, http://www3.weforum.org/docs/WEF_TheGlobalCompetitivenessReport2019.pdf (accessed 1 November 2019)

TBMM Yolsuzluk Soruşturma Komisyonu Raporu’nun tam metni, 12 January 2015, http://odatv.com/tbmm-yolsuzluk-sorusturma-komisyonu-raporunun-tam-metni-1201151200.html (accessed 1 November 2017)

Sayıştay’ın yayınladığı rapor AKP’li belediyelerin borçlarını ortaya çıkardı, 10 October 2017, http://siyasihaber3.org/sayistay-in-yayinladigi-rapor-akp-li-belediyelerin-borclarini-ortaya-cikardi (1 November 2018)

GRECO, Third Evaluation Round Fourth Interim Compliance Report on Turkey ”Incriminations (ETS 173 and 191, GPC 2)” ”Transparency of Party Funding 4-8 December 2017,” https://rm.coe.int/third-evaluation-round-fourth-interim-compliance-report-on-turkey-incr/1680792e28 (1 November 2018)

T.C. Başbakanlık Kamu Görevlileri Etik Kurulu, 2017 Yılı Faaliyet Raporu, http://etik.gov.tr/faaliyetraporu_2017.pdf (1 November 2019)

Ö. F. Gençkaya, Conflict of Interest in Turkish Public Administration, 2009, https://www.researchgate.net/publication/304332439_Conflict_of_Interest (1 November 2019)

Ö.F. Gençkaya, “New Public Management Approach and Ethical Issues in Local Administrations in Turkey,” in New Public Management in Turkey: Local Government Reform, Y. Demirkaya (ed.), New York
&London, 2016, 157-76.

“The new scandal in Isle of Man’s documents: The court, unable to say ‘fake,’ decided ‘no evidence’,” http://www.cumhuriyet.com.tr/haber/turkiye/1032616/Man_Adasi_belgelerinde_yeni_skandal___Sahte__diyemeyen_mahkeme__delil_olmaz__karari_verdi.html (accessed 1 November 2018)

“Turkey’s Halkbank Faces U.S. Charges as Tensions Mount,” 16 October 2019, https://www.bloomberg.com/news/articles/2019-10-15/halkbank-charged-in-six-count-indictment-with-fraud-laundering (1 November 2019)

“Kamu İhale Yasası 16 yılda 186 kez değişti, yasaya göre mi ihale, ihaleye göre mi yasa!” 18 May 2018, http://t24.com.tr/haber/kamu-ihale-yasasi-16-yilda-186-kez-degisti-yasaya-gore-mi-ihale-ihaleye-gore-mi-yasa,638392 (accessed 1 November 2018)
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