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31. The Basic Principles and the Choice of Government System in the New Constitution

Author:
Levent Köker
Publication Date:
10-2013
Content Type:
Special Report
Institution:
Turkish Economic and Social Studies Foundation (TESEV)
Abstract:
“The Basic Principles and the Choice of Government System in the New Constitution,” authored by Levent Köker, is the fourth monitoring report published by TESEV under the umbrella of its constitution monitoring project, Turkey Constitution Watch (turkeyconstitutionwatch.org). The report offers a comparative analysis of the presidential and parliamentary system proposals that are discussed in the Constitutional Reconciliation Commission. It also deals with the basic principles (such as rights and freedoms, independence and impartiality of the judiciary, and local autonomy) that should form the basis of system discussions in Turkey.
Topic:
Human Rights, Law, Constitution, Civil Rights, Justice, and Judiciary
Political Geography:
Turkey and Middle East

32. The High Council of Judges and Prosecutors in Turkey: Roundtable Discussion on Its New Structure and Operations

Author:
Onur Bayramoğlu
Publication Date:
01-2013
Content Type:
Special Report
Institution:
Turkish Economic and Social Studies Foundation (TESEV)
Abstract:
One of the most critical areas of reform in Turkey’s recent history involves the judiciary, which has served to corroborate the tutelary regime. With a discourse emphasizing that the judiciary itself must also be bound by the “rule of law”, the Justice and Development Party (JDP) took a number of steps toward reforming the administration of supreme judiciary bodies, as well as the judiciary in general. The constitutional amendments brought to the ballot in the referendum of 12 September 2012 essentially represented an initiative to transform the judiciary. The amendments package was intended to equip the Constitutional Court and the High Council of Judges and Prosecutors (HSYK) with a more pluralist structure. This report titled “the High Council of Judges and Prosecutors in Turkey: Roundtable Discussion on its New Structure and Operations” is based on discussions of the roundtable meeting attended by representatives from judges and prosecutors professional associations such as YARSAV (The Association of Judges and Prosecutors) and Demokrat Yargı (Democratic Judiciary Association), which adopted divergent positions over the course of the referendum; one representative from HSYK, the direct addressee in the debate; and experts with diverse opinions. With the roundtable, we intended to generate direct discussion by experts and practitioners of the field in a small group affording sufficient time for speakers. As a result, we treated the current situation and practice through an insider’s perspective and in detail. This also provided a shared platform where parties coming from varying political positions exchanged opinions regarding both the HSYK and several contested aspects of the judiciary reform. The roundtable ensured that critiques were communicated to and discussed with the directly relevant parties through face-to-face conversations.
Topic:
Democratization, Law, Rule of Law, Justice, and Judiciary
Political Geography:
Turkey and Middle East

33. Healing the Legacies of Conflict in Afghanistan: Community Voices on Justice, Peace and Reconciliation

Author:
Emily Winterbotham
Publication Date:
01-2012
Content Type:
Working Paper
Institution:
Afghanistan Research and Evaluation Unit (AREU)
Abstract:
This paper synthesises the findings from AREU's Legacies of Conflect research project from across the Bamiyan, Ghazni and Kabul research sites, in search of broadly acceptable approaches to address the legacies of conflict and support reconciliation in the country. It also examines the political context for transitional justice and reconciliation and considers which policies might need to be changed or adopted. The research found that many Afghans continue to struggle with the legacies of their wartime experiences. They usually saw peace and justice as complementary, and not as alternatives to each other. Justice was often widely conceived to include processes of recognition and recompense, and not simply criminal trials or punitive measures. There was a widespread desire for a strong and caring government that could drive a justice process and also negotiate for a peace that would not only end the insurgency, but reconcile Afghanistan’s different groups. However, a widespread pessimism prevailed about the prospect of this occurring in the near future. In the meantime, certain initiatives—whether locally-driven or at the national level—have the potential to provide a measure of comfort to conflict victims while paving the way for a more enduring peace.
Topic:
Conflict, Peace, Justice, and Reconciliation
Political Geography:
Afghanistan and Middle East

34. Monitoring Report Making of a New Constitution in Turkey: October 2011-January 2012

Author:
Ferhat Kentel, Levent Köker, Mehmet Uçum, and Özge Genç
Publication Date:
02-2012
Content Type:
Special Report
Institution:
Turkish Economic and Social Studies Foundation (TESEV)
Abstract:
The redefinition of relations between state, society and individuals in the framework of a new state philosophy in Turkey and the transformation of the mentality of both the state and society along this line will carry Turkey onto a more democratic, pluralist and conciliatory political sphere. One of the milestones of this process is the making of a new constitution, that is initiated by the Turkish Parliament following the general elections of June 12, 2011, and expected to culminate in the adoption of a new founding document. An ideal constitutional process should be based on the demands and contributions of social groups and individuals and groups should be empowered to engage in politics in a way that has not yet been possible during the preparation of any other constitution in Turkey. On the other hand, presently, it is obvious that on a societal level there is an environment of lively yet stifled debate regarding the new constitution, as well as a number of flaws and issues in terms of how the process is functioning. However, the Constitutional Reconciliation Commission, formed in October 2011 with equal participation from all political parties represented in the parliament, and its members who have reached a consensus on the commitment to establish a new constitution with apparently genuine effort, create the expectation that the preparation of a new constitution will soon make headway. In the subsequent stages, political actors, civil society and media should play a significant role in terms of both contribution to and monitoring of the process. The Turkish Economic and Social Studies Foundation (TESEV) Democratization Program aims to actively engage in the creation of a new constitution through monitoring, documenting and reporting on the process undertaken with the objective of meeting society’s expectations. Within the scope of this project, the role, contribution and performance of the parliament, political parties, non-governmental organizations and the media are monitored and both positive and negative developments are documented. Solution-oriented interventions that provide guidance will also be made whenever the process comes to a deadlock throughout the project. Via parallel projects, the Democratization Program will also be conducting scientific, informative, and solution oriented work regarding issues that obstruct the reform process and contributing to create a platform of democratic debate in Turkey.
Topic:
Law, Constitution, Justice, and Judiciary
Political Geography:
Turkey, Middle East, and Mediterranean

35. “Mills That Grind Defendants”: Criminal Justice System in Turkey from a Human Rights Perspective

Author:
Cüneyt Doğrusözlü
Publication Date:
03-2012
Content Type:
Special Report
Institution:
Turkish Economic and Social Studies Foundation (TESEV)
Abstract:
As Turkey continues to call herself a democracy, in reality she is still a country that strives to become democratic. It is only recently that we have recognized the structure of Republic as a tutelary regime, and have accordingly oriented ourselves towards a mindset required to deliver the desired changes in this structure. Presumably, the most important difference between democracy and a tutelary regime materializes in the concept of “the rule of law”. This principle requires all governmental bodies, including the judiciary, to be subject to law while taking into consideration the universal rights and freedoms. In Turkey, however, and also because of its privileged position created by the present coup d’état constitution, the judiciary sees itself as the definer of the law. Seen in this light, judicial reform emerges as one of the most critical steps that needs to be taken in moving ahead with the democratization process. With this insight, judiciary has been one of the key areas on which TESEV has focused its research activities in the last four years. In studies led by Mithat Sancar, the perspectives of first judges and prosecutors, and then of the society regarding the judicial system and its function, were scrutinized. These studies were all compiled in a book and published in May 2009. In March 2010, another study was published; authored by Meryem Erdal, the study explored into the media coverage by various organizations of some specific litigations, as well as the general approach of those same organizations to the judiciary. Thereby an opportunity was created to discuss the problems of perception surrounding the judiciary system. Democratization of the judicial system, however, requires carrying out a policy of “reform” and sharing this policy with the public. Such a reform would need to evolve around two pillars: First requires reconsidering the concepts of “independence”, “impartiality” and “legitimacy” in the context of the system in its entirety and the position of the judiciary, with the aim of ensuring that they are compatible with the international norms. In this context, the relationship between the executive branch and the judiciary, the position of the judiciary between the official ideology and universal law, and election system of higher judicial bodies appear as major problematic areas. The report titled, “A Judicial Conundrum: Opinions and Recommendations on Constitutional Reform in Turkey” edited by Serap Yazıcı and released in May 2010, discussed these issues that also constitute the subject matter of the government’s judicial reform, from the point of view of universal democratic criteria, and provided a meaningful basis for the direction and framework of the reform. On the other hand, the judiciary needs not only a systemic reform, but also a new perspective as a mechanism in order to meet citizens’ need for justice. The report titled, “Access to Justice in Turkey: Indicators and Recommendations” authored by Seda Kalem and released in June 2011, explored one of the major issue areas of demand by the citizens from the judiciary: the problem of “access to justice”. TESEV Democratization Program’s third policy report on Judicial Reform titled, “Mills that Grind Defendants: Criminal Justice System in Turkey from a Human Rights Perspective”, authored by Osman Doğru delves into the problematic aspects of the criminal justice system in Turkey with a comparative approach through European Human Rights Convention’s legal framework and implementations. The report focuses on the following problematic aspects of the defendants’ rights in Turkey: detentions without indictments; prolonged pre-trial detentions and lengthy trials; prevention of defendants’ access to legal counsel and the issuance of indictments based on unlawfully obtained evidences. In addition, Osman Doğru’s report critically evaluates the treatment of this issue in the Judicial Reform Strategy, produced by the Ministry of Justice and puts forth specific policy recommendations. We hope to conduce toward covering essential elements that have to be pointed out for a judicial reform, and respond to the public need for information and discussion of the matter.
Topic:
Democratization, Human Rights, Law, Reform, Criminal Justice, Justice, and Judiciary
Political Geography:
Turkey, Middle East, and Mediterranean

36. Disrupting the Shield of Impunity: Security Officials and Rights Violations in Turkey

Author:
Mehmet Atılgan and Serap Işık
Publication Date:
03-2012
Content Type:
Special Report
Institution:
Turkish Economic and Social Studies Foundation (TESEV)
Abstract:
This report addresses the issue of impunity, which has virtually become the norm, as far as the rights violations committed against citizens by law enforcement units in Turkey are concerned. As the authors of this study, Mehmet Atılgan and Serap Işık reveal the issue of impunity stems from a complicated penal law structure whose existence still prevails in administrative, legal and practical areas. In addition, as pointed out in the “Just Expectations: Compilation of TESEV Research Studies on the Judiciary In Turkey” report (2011), the state institutions’ protection by the judiciary in Turkey is an outcome of a certain mentality. Not only have the members of the judiciary but also many actors among the media and the civil society in Turkey demonstrate this statist mentality. Considering the multi-layered socio-political landscape of Turkey, it is not realistic to expect that the issue of impunity will be resolved in the short run or quickly. Hence, a stronger and more extensive struggle awaits the social actors who want to eliminate the issue of impunity. In Turkey, there are many dedicated lawyers and human rights organizations carrying out this struggle either through collectively organized campaigns or through individual efforts. In order to understand the structure of the struggle in this area and to produce solutions to rectify the shortcomings, TESEV Democratization Program (DP) held three meetings between November 2010 and April 2011 with a group of lawyers experienced in defending the rights of victims in lawsuits related to human rights violations committed by law enforcement units. In addition, the project team also attended the December 2010-July 2011 hearings of the court case of Temizöz and Others being administered at the Specially Empowered 6th Heavy Penal Court of Diyarbakir. Court cases that reverberated in the public domain, such as the Hrant Dink Murder, Engin Çeber and JİTEM (the Intelligence and Anti-Terrorism Unit of the Gendarmerie) cases were also addressed within the scope of this report. Of course, in terms of the issue of impunity, these court cases are nothing more than striking examples, as similar instances can be seen in the near future of Turkey. The state officials who are being tried as defendants in these lawsuits are charged with serious offences such as establishing an armed organization, committing torture in detention, unsolved murders, and enforced disappearance of persons. A significant part of these crimes are related to the extrajudicial executions known to be carried out against civilian Kurdish citizens in 1990s as part of the security policy of the state. Hence, these court cases are also of vital importance in a quest for the resolution of the Kurdish Question in a peaceful way. Additionally, these are court cases where the dissident intellectuals, revolutionist dissidents, and the asylum seekers whose rights are deprived of any guarantees under the national laws are also victimized. On the other hand, these cases are very important in terms of the civilian oversight of security institutions in Turkey, and the civilianization process which gained pace in 2000s but still seems to be at a far distance on Turkey’s horizon. The quest for justice through these lawsuits can only be successful if supported by the victims and witnesses of such cases. It is our hope that the studies carried out by TESEV DP will bring more public visibility to these court cases and encourage a wider population to seek their rights.
Topic:
Security, Human Rights, Law, Accountability, Transparency, Justice, and Judiciary
Political Geography:
Turkey, Middle East, and Mediterranean

37. Just Expectations: A Compilation of TESEV Research Studies on the Judiciary in Turkey

Author:
Eylem Ümit Atılgan, Meryem Erdal, Mithat Sancar, and Suavi Aydın
Publication Date:
02-2011
Content Type:
Special Report
Institution:
Turkish Economic and Social Studies Foundation (TESEV)
Abstract:
Since the European Union membership process has gained a central position in politics, Turkey has become focused on reforms and change. However, this requires not only political will but also social acceptance, as Turkey’s drawbacks originate also from the social mentality as much as from the state tradition. Therefore, how social perception is changing in the areas expected to go through restructuring and how ready the society is for the possible reforms is a very important question. TESEV studied this issue within the scope of a research on “Social Perceptions and Mentality Structures” a few years ago and presented the results of this research to the public in the format of four separate books. In addition to ideological frameworks such as religiousness, secularism and nationalism, these studies addressed the general approach to the state and the patriarchal environment evident in families, and revealed how perceptions are changing at the individual and collective level. However, there is another very important stratum between political will and social ownership, and Turkey’s need for reform perhaps shows itself most keenly at this point. This stratum is the state institutions. It looks like it is a must for virtually the entire bureaucracy, and mainly the armed forces, the judiciary and the police, to restructure in terms of mentality, organization and functions. Taking this into consideration, Turkish Economic and Social Studied Foundation (TESEV) Democratization Program (DP) decided to continue its studies on “Perceptions and Mentalities” with bureaucratic institutions and address the judiciary as the first institution. One of the main reasons behind this choice was that there were very few studies on the judiciary, an institution that is in a central position in terms of democratization, law, and state-citizen relations in Turkey. Taking this shortcoming into account, a research series comprised of three separate studies that complement each other were prepared with the aim to inform and guide the public debate on the judiciary in Turkey. Based on these research projects conducted between early 2007 and mid-2009, TESEV DP published three separate books on the judiciary in Turkey. It should be noted that the study does not cover the developments taking place in the judiciary after the first half of 2009. The first book authored by Mithat Sancar and Eylem Ümit Atılgan attempted to shed light on the mentalities of judges and prosecutors and how they approach 2 the concepts of state, justice and rights. The second book authored by Mithat Sancar and Suavi Aydın aimed to determine the perception of justice in the society and the functionality attributed to the judiciary as an institution in the public mind. The book demonstrates that terms such as equity and criminality are interpreted within a pragmatic framework, and reveals the social perceptions that hamper the establishment of an understanding of law based on universal principles. The third book authored by Meryem Erdal takes a look at the press as an essential area that functions as a bridge between the judiciary as a bureaucratic institution and the way justice and law are perceived in the society. This is mainly because the support of a powerful media is a requirement for the institutional transformation of the judiciary based on democratic principles and norms as well as for the formation of the social perception that seeks a transformation as such. This English edition consists of an extensive summary of each of these three books with the aim to present their core findings in one volume. Turkey’s requirements in its democratization process are the formation of a citizenship in conformity with the universal norms recognized today, along with its administrative mechanisms. The bureaucracy of law and, hence, the judiciary are in a central position as the indispensible guarantees of such a transformation. We hope that this study will make serious contributions to discussions on the reforms that will be made in such an important area...
Topic:
Democratization, Law, European Union, Media, Justice, Judiciary, and Society
Political Geography:
Europe, Turkey, and Middle East

38. Towards Turkey’s New Constitution

Author:
M. Murat Erdoğan and Serap Yazıcı
Publication Date:
04-2011
Content Type:
Special Report
Institution:
Turkish Economic and Social Studies Foundation (TESEV)
Abstract:
Turkey’s need for a new constitution is accepted by almost everyone today. In fact, this was a need that has been in existence since the day the 1982 Constitution was made, for the 1982 Constitution was not only antidemocratic in terms of the method it was made, it also did not fit the ideal of a democratic and pluralist-liberalist society in terms of its content. Indeed, with characteristics such as its official ideology, its hierarchical model that renders the society subject to the state, its unionist-uniformist structure that sees differences and diversity illegitimate and its sacrificing freedom for authority, the 1982 Constitution is far from the standards of today’s democracies, and goes against the structure and needs of the society in Turkey. Since the day it came into effect, various amendments have been made in the 1982 Constitution, essentially as a result of this need. Yet, although these amendments, particularly those made in 2001 and 2010, made considerable contributions to the liberalization and democratization of our society, this situation has not removed Turkey’s need to make a completely new constitution. Moreover, these amendments have also disturbed the current constitution’s integrity within itself. On the other hand, in the face of the will of voters revealed in the 2010 referendum on the constitutional amendments, making a new constitution has now become an urgent task that can no longer be ignored. During the last few years in Turkey, the method that should be pursued in making the new constitution has been broadly debated in the public. Foreseeing that political parties would open to public debate their own views and suggestions on the new constitution during their election campaigns, our working group had already announced to the public that the parliament formed at the end of this election would have the power to make the new constitution. Since then, various civil initiatives and formations have carried out activities to collect the demands of the people on the matter of the constitution, or opened their own suggestions to public debate. Meanwhile, news that some major political parties were also in similar preparations appeared in the media. As a result, in line with our own expectations and foresights, it is understood that this election campaign will also become a constitution campaign and that the new parliament formed after the June 2011 elections will embark on the task of making a new constitution. Accordingly, this situation has made it urgent for TESEV, a non-governmental organization, to share with the public its main views and suggestions regarding the new constitution.
Topic:
Law, Reform, Constitution, Justice, and Judiciary
Political Geography:
Turkey, Middle East, and Mediterranean

39. Justice and Home Affairs Issues in Turkish-EU Relations

Author:
Kemal Kirisçi
Publication Date:
01-2002
Content Type:
Special Report
Institution:
Turkish Economic and Social Studies Foundation (TESEV)
Abstract:
Turkish-EU relations entered a new era with the decision to declare Turkey a candidate country for membership at the Helsinki summit of December 1999. i Since then the adoption of the Accession Partnership Document (APD) issued by the EU in December 2000ii and the National Programme issued in April 2001iii by the Turkish government have set an agenda of issues to be addressed in preparing Turkey’s accession. In general, considerable public attention has been given to the reform s that Turkey must introduce to meet the Copenhagen criteria and to foreign policy issues such as the question of Cyprus. One aspect of both documents that has received little attention is Justice and Home Affair (JHA) issues. JHA is an area of the European integration process that has not yet become supranational. Instead, member countries have preferred to address issues to do with JHA through intergovernmental cooperation. Nevertheless, an impressive level of EU acquis has been developed and candidate countries are expected to harmonise their legislation and practice to it. Central to JHA issues is asylum, irregular migration and visas. Once the geography of the EU became borderless for the citizens of member countries, the questions of common asylum and immigration policies acquired heightened importance. The need to coordinate policy increased and the EU has gradually edged toward a common asylum and immigration policy. The 1997 Treaty of Amsterdam includes a commitment by member states to develop such a policy within five years. Once this is achieved the development of common immigration and asylum policies will come under the Council of Ministers’ power.
Topic:
International Relations, Immigration, European Union, Justice, and Asylum
Political Geography:
Europe, Turkey, Middle East, and Mediterranean