2. Relations between the EU and Turkey

Recent developments in bilateral relations

The European Council in December 2004 decided to open accession negotiations with Turkey on 3 October 2005 and set out the framework and the requirements for starting accession negotiations with Turkey. Firstly, Turkey was to bring into force six pieces of legislation enhancing human rights and the functioning of the judiciary and secondly, Turkey was expected to sign the Adaptation Protocol extending its existing Association Agreement with the EU to all new Member States, including the Republic of Cyprus.

Fulfilment of these requirements by Turkey resulted in the opening of accession negotiations on 3 October 2005 as planned -EU-Turkey relations entered a new phase.

In addition to the accession negotiations,  two other pillars are designed to provide assistance for Turkey in the pre-accession phase: Reinforce and support the reform process in Turkey and strengthen the political and cultural dialogue.

Therefore, the Commission has provided support and cooperation in order to underpin the political reform process in Turkey. The Commission has continued its regular monitoring of the Copenhagen political criteria - with frequent meetings in Ankara and Brussels. With this Report, the Commission also proposed to update the Accession Partnership. These revised partnerships provide updated priorities for the preparations of Turkey for accession and can be used as a yardstick to measure progress in the reforms. Turkey has developed a National Programme for the adoption of the acquis. 

The enhanced political dialogue has continued under the Dutch, Luxembourg and United Kingdom presidencies. Among the items discussed were the political reforms in Turkey, human rights, Cyprus and the peaceful settlement of disputes. Views were also exchanged on wider international issues (see Chapter 31 – Foreign, security and defence policy).

In June 2005, the Commission adopted a communication on the civil society dialogue between the EU and Candidate Countries. This should help to promote dialogue between civil society, in a broad sense, in the EU and Turkey, in order to address issues and concerns relating to enlargement. This communication sets out a general framework on how to create and reinforce links between civil society in the EU and candidate countries. The civil society dialogue should contribute to encourage a societal debate around accession, with a view to

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allowing a wide participation and information of civil society during the enlargement process. The long-term objective of the dialogue is to prepare civil society from the EU and candidate countries for future enlargement. The dialogue will have a special focus on Turkey, as the state of mutual knowledge is particularly weak with that country and misconceptions and concerns more widespread.

The communication focuses on the broadest and the most inclusive definition of civil society,

i.e. all society structures outside of government and public administration (but including local communities). Bilateral exchange projects, aimed at improving mutual knowledge and ensuring collaboration and exchange of expertise, will be a common pattern of projects to be funded. Targets will include NGOs - including women’s rights and equal opportunities organisations - professional organisations and business associations, youth, university, culture and the media. About EUR 40 million will be earmarked for civil society dialogue projects and Community programmes in 2006 for Turkey. The Commission also expects that the communication will encourage public and private institutions and civil society organisations both in the EU and in candidate countries to contribute to the dialogue and increase mutual links in the future

The Association Agreement has continued to work in a satisfactory manner. The Association Council met in April and an Association Committee meeting was held in March. The Joint Parliamentary Committee comprising representatives of Turkey and European Parliament met in February and in June. The Joint Consultative Committee with the Economic and Social Committee met in November 2004 and in June 2005. Eight subcommittees are operational. 

The process of legislative scrutiny carried out in the framework of the sub-committees of the Association Agreement has continued. An enhanced programme of working groups, TAIEX seminars and technical meetings on specific subjects supplemented the work of the sub­committees.

The European Council in December 2004 welcomed Turkey‘s decision to sign the Protocol regarding the adaptation of the Ankara Agreement, taking account of the accession of the ten new Member States. In this light, it welcomed the declaration of Turkey that "the Turkish Government confirms that it is ready to sign the Protocol on the adaptation of the Ankara Agreement prior to the actual start of accession negotiations and after reaching agreement on and finalising the adaptations which are necessary in view of the current membership of the European Union.” The Commission presented the draft Protocol in May 2005. After agreement in the Council on the text the Protocol was signed in July. The Turkish authorities attached a declaration concerning relations with Cyprus. The European Union adopted a declaration on 21 September. The European Parliament decided to postpone the vote concerning its assent to the protocol in September 2005. 

Despite the overall success of the Customs Union, there are a number of unfulfilled commitments by the Turkish side (see also chapters 1 - free movement of goods, 7 – intellectual property law, 8 - Competition Policy, 30 -external relations etc.). This applies in particular to technical barriers to trade, state aids, to the enforcement of intellectual property rights and to provisions which discriminate between EU and Turkish operators. Market access for foreign producers in several sectors, including alcoholic beverages is prevented through non tariff barriers and discriminatory treatment. Maintaining import licences is not compatible with the Customs Union, and these should be removed without delay. Turkey should resolve the existing disputes, either bilaterally, or by agreeing to refer the matter to the competent judicial institutions.  Turkey has still not taken meaningful steps concerning the Customs Union obligations with regard to state aid. Finally, Turkey has not completed its alignment to the common external tariff. On a number of occasions, the EU urged Turkey remove all restrictions on the free movement of goods, including restrictions on means of transport. 

Actions in these areas - combined with greater macro-economic stability - would enable a better exploitation of the potential of the Customs Union and would also contribute to the improvement of the investment climate, fostering foreign direct investment. The negotiations to extend the Customs Union in the area of public procurement and services seem to have lost their momentum, and no negotiations have taken place since 2003. In view of the importance of this issue for both parties, the EU hopes that negotiations can resume soon as soon as possible. Turkey‘s public procurement law should be aligned with the acquis with a view to ensuring non discriminatory treatment of EU bidders. Some of the required legislative changes include extending its scope of application, removing a large number of exemptions, avoiding discrimination against EC goods and suppliers and lifting the restrictions in competition and full transparency. On services, the main unsolved issues are the scope of the agreement, the type of service providers to be included and the timetable for liberalisation.

Concerning trade, the trade in agricultural products, following a series of consultations on adaptations to be made to the bilateral agricultural trade preferences (under Decision 1/98 of the EC-Turkey Association Council) to take account of EU enlargement in 2004, agreed minutes were signed by negotiators in April 2005. These changes will be implemented in 2006 by means of a new Association Council Decision. 

Turkey continued to operate its long-standing ban on imports of live bovine animals, beef and other animal products, which in the view of the Community is not in line with Turkey’s international obligations and which deprives EU exporters of important trade concessions granted under Decision No 1/98 of the EC-Turkey Association Council. In April 2005, Turkey accepted to offer compensations to the EU for the market disruptions caused by the Turkish beef ban, while it remains in place. These compensations are currently being discussed in the way of a set of alternative concessions. 

The share of the European Community (EU-25) in Turkey’s foreign trade has continued to increase in 2004, for a third consecutive year. Total trade in goods with the EU-25 in 2004 was 22 % up on 2003 and accounted for 50% of Turkey’s overall trade. In 2004, exports to the EU-25 were 21% up on 2003, accounting for 55% (EUR 27.6 billion) of Turkey’s total export sales. Its main industrial exports to the EU-25 were apparel, textiles, vehicles and automotive parts. Turkey’s main agricultural exports to the EU-25 were fruits, vegetables and nuts, which allowed Turkey to have surplus in trade of agricultural products. In 2004, imports from the EU-25 were up by 23% on 2003, accounting for 47% (EUR 36.5 billion) of Turkey’s total imports. Its main industrial imports were machinery, chemicals, iron and steel. 

Currently there are two anti-dumping measures in place against products originating in Turkey on imports of respectively, steel ropes and cables, and of welded tubes and pipes. No new anti-dumping or anti-subsidy measures against Turkey have been imposed or new investigations initiated since 2004. Regarding safeguard measures (erga omnes), the proceeding on imports of farmed salmon (initiated in March 2004) was terminated in April 2005. A safeguard investigation on imports of frozen strawberries was opened in July 2005.

Community assistance

As regards grant assistance, the 2005 pre-accession financial assistance programme consists of a country programme and associated expenditure on multi-country programmes such as TAIEX or SIGMA, communication and management bringing the overall total to EUR 300 million. The key priorities for the 2005 programme, reflecting the Commission recommendation of October 2004 and the conclusions of the Brussels European Council meeting in December 2004, are: the political criteria, including some closely-related subjects in the sector of justice, liberty and security; economic and social cohesion, targeted on the poorest regions in Turkey, and focussing on strategic planning, support for the establishment of Regional Development Agencies in the priority NUTS II regions, and project preparation; implementation of the acquis, with projects being developed in the following sectors: Internal Market; Agriculture (veterinary controls); Environment; the ‘network‘ sectors (Energy, Transport and Telecommunications); Social Policy; Statistics; EU-Turkey Political and Social Dialogue. 

The 2005 programme has also addressed a number of cross cutting themes such as gender issues and strategic planning and project preparation, in order to ensure adequate absorption in future programmes; civil society development. 

Turkey participates actively in the following Community programmes: Enterprise & SMEs, the 6th Framework Programme on Research, Combating Discrimination, Combating Social Exclusion, Gender Equality, Incentive Measures in the field of Employment, Community Action in the field of Public Health, eContent, Fiscalis 2007, Customs 2007 and IDA (Interchange of Data between Administrations). Turkey continues its participation in the European Environment Agency (EEA) as well as in the education programmes Socrates, Leonardo da Vinci and Youth and made preparations for its participation in Culture 2000 next year. Cooperation with the European Monitoring Centre for Drugs and Drug Addiction is continuing, while preparation of the relevant agreement for full participation is in its final stage. Discussions are under way on possible ways to establish cooperation between Turkey and the new European Aviation Safety Agency (EASA). 

In light of the increased assistance budget, Turkey needs to further improve its capacity to manage and use these funds effectively. It is encouraged to establish the necessary institutions needed for the implementation of the IPA (Instrument for Pre-Accession Assistance), which is scheduled to come into force in 2007. Turkey should also make further progress towards extended decentralisation: this will necessitate paying close attention to good governance, and the introduction of an adequate system of Public Internal Financial Control. In order to avoid absorption capacity limitations in the coming years, an improvement in strategic planning is needed. Turkey should also improve the staffing and the institutional anchoring of the Turkish implementing agency (CFCU), as well as the coordination among the ministries involved in programming and implementation. The Union recalls the linkage between project financing and progress made in the harmonisation with the corresponding elements of the acquis. The EU welcomes the fact that the new Framework Agreement has been ratified recently, and urges Turkey to bring into force all the necessary secondary legislation needed for its implementation.

The Joint Monitoring Committee, in its meeting in January 2005, reviewed the status of the implementation of the Community assistance in Turkey on the basis of an independent evaluation report. This report concluded with an average rating (“barely satisfactory”). The report highlighted the general relevance of Community assistance and the expected positive impact of the programmes. It nevertheless also underlined shortcomings in relation to the efficiency and effectiveness of programme implementation, due to delays and contracting backlogs.

As regards lending, the Commission also continues to seek a high degree of complementarity between the pre-accession financial assistance programme and the on-going reform programmes supported by the international financial institutions, particularly the World Bank, in areas such as education, environment, health, agriculture, transport, regulatory reform and public procurement.

Total EIB lending in Turkey stands at EUR 3.6 bn, confirming the Bank’s commitment to support the country’s economic development and European integration through suitable long-term finance. For the period from 2004, and following the enlargement in May, the EIB‘s external lending mandate has been reviewed. Turkey is no longer included in the EuroMed II Lending Mandate but in a new geographical mandate – the South-eastern Neighbours mandate. Turkey is a full participant in the EIB‘s Facility for Euro-Mediterranean Investment and Partnership which provides technical assistance for the design of projects and reforms in different economic sectors. 

Overall lending to Turkey is projected to increase significantly over the forthcoming period. The EU calls upon to Turkey to assist in the identification and development of viable project proposals, to enhance the planned increase in resources. The FEMIP support fund can assist in this process.

Twinning

One of the main challenges facing the candidate countries is the need to strengthen their administrative and judicial capacity to implement and enforce the acquis. As of 1998, the European Commission began to mobilise significant human and financial resources to help them with this process, using the mechanism of twinning administrations and agencies.

The twinning process makes the vast body of Member States’ public sector expertise available to the candidate countries through the long-term secondment of civil servants and accompanying short-term expert missions and training.

Furthermore, the candidate countries can draw on Member States’ expertise through "Twinning light", an exchange of expertise mechanism to support projects of limited scope.

Twinning is an important element under the 2004 programme, contributing to the results of 22 projects involving 12 Member States (France, Germany, UK, Spain, Austria, Greece, Finland, Netherlands, Sweden, Hungary, Slovakia and Lithuania). These span a broad range of sectors, the most numerous being in the area of Justice, Liberty and Security.  In addition, twinning projects are planned in the fields of the internal market, agriculture, environment, transport, the financial sector (including financial control) and customs.

Negotiations and screening

In June 2005 the Commission presented a draft framework for accession negotiations, setting out the method and the guiding principles of the negotiations, in line with the December 2004 European Council conclusions. The framework was adopted by the Council of Ministers on 3 October 2005. The EU-Turkey Intergovernmental Conference met for the first time on 3 October 2005. In parallel, the Commission has launched the analytical examination of the acquis (screening) which forms the first phase of accession negotiations. This process allows candidate countries to familiarise themselves with the acquis and allows the Commission and the Member States to evaluate the degree of preparedness of candidate countries before deciding whether a chapter can be opened for negotiations.  

B. CRITERIA FOR MEMBERSHIP

1. Enhanced political dialogue and political criteria

The political criteria for accession to be met by the candidate countries, as laid down by the Copenhagen European Council in June 1993, stipulate that these countries must have achieved “stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities.”² In this section, the Commission also monitors regional issues, including the requirements of Turkey’s commitment to good neighbourly relations and its undertaking to resolve outstanding border disputes; its support for efforts to achieve a comprehensive settlement of the Cyprus problem and progress in the normalisation of bilateral relations with Cyprus.

In its 2004 report, the Commission found that: 

“Turkey has achieved significant legislative progress in many areas, through further reform packages, constitutional changes and the adoption of a new Penal Code, and in particular in those identified as priorities in last year’s report and in the Accession Partnership. Important progress was made in the implementation of political reforms, but these need to be further consolidated and broadened. This applies to the strengthening and full implementation of provisions related to the respect of fundamental freedoms and protection of human rights, including women’s rights, trade union rights, minority rights and problems faced by non-Muslim religious communities. Civilian control over the military needs to be asserted, and law enforcement and judicial practice aligned with the spirit of the reforms. The fight against corruption should be pursued. The policy of zero tolerance towards torture should be reinforced through determined efforts at all levels of the Turkish state. The normalisation of the situation in the Southeast should be pursued through the return of displaced persons, a strategy for socio-economic development and the establishment of conditions for the full enjoyment of rights and freedoms by the Kurds.

The changes to the Turkish political and legal system over the past years are part of a longer process and it will take time before the spirit of the reforms is fully reflected in the attitudes of executive and judicial bodies, at all levels and throughout the country. A steady determination will be required in order to tackle outstanding challenges and overcome bureaucratic hurdles. Political reform will continue to be closely monitored.

As regards the enhanced political dialogue, relations with Greece developed positively. A series of bilateral agreements were signed and several confidence building measures adopted. A process of exploratory talks has continued. On Cyprus, over the last year Turkey has supported and continues to support the efforts of the UN Secretary General to achieve a comprehensive settlement of the Cyprus problem. The European Council of June 2004 invited Turkey to conclude negotiations with the Commission on behalf of the Community and its 25 Member States on the adaptation of the Ankara Agreement to take

In the meantime, through the entry into force of the Treaty of Amsterdam in May 1999, the political criteria defined at Copenhagen have been for the most part enshrined as a constitutional principle in the Treaty on European Union. Article 6(1) of the consolidated Treaty on European Union reads: "The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms and the rule of law." Accordingly, Article 49 of the consolidated Treaty stipulates that "Any European State which respects the principles set out in Article 6(1) may apply to become a member of the Union." These principles were emphasised in the Charter of Fundamental Rights of the European Union, that was proclaimed at the Nice European Council in December 2000.

account of the accession of the new Member States. The Commission expects a positive reply to the draft protocol on the necessary adaptations transmitted to Turkey in July 2004.”

The section below provides an assessment of developments in Turkey, seen from the perspective of the Copenhagen political criteria, including the overall functioning of the country’s executive and its judicial system. Such developments are in many ways closely linked to developments regarding Turkey’s ability to implement the acquis, in particular in the domains of anti-discrimination and equal opportunities, judiciary and fundamental rights as well as justice, freedom and security. Specific information on progress in implementing the acquis in these fields can be found in Chapter 19 (Social policy and employment), Chapter 23 (Judiciary and fundamental rights) and Chapter 24 (Justice, freedom and security) of the section dealing with the ability of Turkey to assume the obligations of membership (see below

B. 3.).

1.1 Democracy and the rule of law

Parliament

Since the last national elections in November 2002 the Justice and Development Party (AKP) has held a comfortable majority in the Turkish Grand National Assembly. As of October 2005, the AKP has 355 seats in Parliament. The main opposition party the Republican People’s Party (CHP) is represented with 155 deputies. 

Several deputies from AKP as well as CHP have changed their party affiliation and in some cases established new parties. As a result, the number of political parties currently represented in Parliament has increased to six. Therefore, some of the parties that did not pass the election threshold of 10% in the November 2002 elections gained seats in Parliament: the True Path Party (DYP) 4, the Social Democrat People’s Party (SHP) 4, the Motherland Party (ANAP) 21 and the People’s Ascension Party (HYP) 1 seat. Six members of Parliament are independent and 4 seats are vacant.

There has been no change to the electoral system, which requires political parties to reach a 10% threshold to achieve representation in Parliament.

After the intensive reforms of the previous two years, Parliament continued its regular legislative work. A total of 184 draft laws have been submitted to Parliament since October 2004. Between October 2004 and June 2005 Parliament adopted 166 new laws.

Since the previous Regular Report, Parliament has adopted several laws which build on the political reform process. The most important are: the Law on the Establishment of Duties and Powers of the Ordinary Courts of First Instance and Regional Courts of Appeal and the Law amending the Code of Civil Procedures (October 2004), the Law on Associations (23 November 2004), the Law on the Enforcement of Sentences and Security Measures (29 December 2004), the Law amending some of the articles of  the New Turkish Penal Code (31 March 2005), the Law on the Implementation of the Code of Criminal Procedure and the Law on Misdemeanours (31 March 2005), the Law Amending the Law on the Enforcement and Implementation Procedure of the Code of Criminal Procedure, the Law amending the Law on the Enforcement and Implementation Procedure of the Turkish Penal Code (18 May 2005), the Law amending the Law on Enforcement of Sentences, the Law amending the Law on Judicial Records, the Law amending the Code of Criminal Procedure (1 June 2005).

Since the beginning of the third legislative period in October 2004, the President of the Republic has used his right to return laws to Parliament to be reviewed on thirteen occasions.

He has applied eight times to the Constitutional Court for the annulment of certain provisions of laws adopted by Parliament in the second round after the presidential veto. 

The EU Harmonisation Committee continued its work, giving its opinion on various EU-related draft laws. There were however complaints that some important EU related legislation was not submitted for the Committee’s opinion, e.g. revisions made in the Penal Code. 

A new Committee on Violence Against Women and Children has been established. The Parliamentary Human Rights Investigation Committee has continued its work conducting investigations in cases involving human rights abuses. However, its overall impact is constrained by limited resources and the fact that it currently plays no role in scrutinising legislation.

Government

Since November 2002 the government has been formed by the Justice and Development Party AKP. It has reiterated its commitment to the reform process on several occasions. The main opposition party, CHP, has generally extended its support to this process. Relations with the EU have for the most part remained at the forefront of the political agenda.

The government has reviewed the reform process regularly, assisted by the Reform Monitoring Group, a body responsible for supervising the implementation of the reforms. The Secretariat General for EU Affairs continues to play an important coordinating role as regards the alignment with and implementation of EC norms and standards as well as on the programming of financial cooperation in support of these objectives. 

A small cabinet reshuffle took place in June 2005 when the State Minister for Women, the Minister for Public Works and Housing and the Agriculture Minister were replaced. The Minister for Culture and Tourism resigned from his post and his party, taking over the leadership of the ANAP party. The post of Prime Ministry spokesman was established. 

A number of senior appointments to the public administration did not receive the approval of the President of the Republic. Of the 2 340 appointments made since the beginning of the current government, 306 were not approved by the President. The government has increasingly made use of temporary appointments to fill administrative posts, including for appointments that had not been vetoed by the President. 

Public administration

As regards public administration, there has been some progress in terms of reforms at provincial and local level. However, there have been certain difficulties in pursuing a comprehensive process of reform, especially concerning the central administration, thus leading to a fragmented approach.

The Framework Law on Public Administration adopted in 2004 was vetoed by the President in July 2004 on the grounds that it conflicted with constitutional provisions related to the unitary character of the State. This Law was intended to be the centrepiece of the reform process. In particular, it provided for a new distribution of duties and powers between local and central government, for rationalizing administrative bodies and for an increased responsiveness and transparency vis a vis the citizen. Currently the Parliament is still in the process of reviewing the legislation. 

A number of laws were nonetheless adopted as regards local government.  The Law on Municipalities was first adopted in 2004 and then vetoed by the President.  Subsequently it entered into force in July 2005 with minor amendments.  The Law on Special Provincial Administrations was first adopted in 2004 and then vetoed by the President.  It subsequently entered into force in March 2005 with some minor amendments.  However, the President applied to the Constitutional Court on the basis of possible conflicts with constitutional provisions related to the unitary character of the State. 

The Law on Association of Local Governments was adopted in June 2005. Thus, together with the Law on Metropolitan Municipalities which was adopted in 2004, four basic local government reform laws are now in force. 

The Law on Municipalities and the Law on Special Provincial Administrations aim at strengthening the capacity of local government to deal with the challenges of rapid urbanization and mass immigration from rural areas.  To this end these laws introduce modern public management concepts in order to create efficient, result oriented and transparent local government.

The reforms have introduced, in particular, strategic planning requirements, emergency planning, debt and borrowing limits, performance based budgeting, annual activity reports and the creation of audit commissions.  Provisions have also been introduced allowing voluntary participation of local residents in service delivery. Moreover, City councils have been created, with members drawn from civil society, in order to promote participation and consultation.

The Law on Association of Local Governments allows villages, municipalities and special provincial administrations which share common problems to associate themselves to undertake joint projects.

The fact that all these laws have been rewritten at the same time presents significant challenges for the government.  In order for the intended objectives to be met, the implementation of these laws will have to be planned and executed effectively. In particular, the necessary secondary legislation will need to be adopted.  Issues to be tackled include: enabling full consultation of interested parties through stronger access to information; financial and fiscal implications; human resource requirements; strengthening of financial control and auditing systems.

There has been no progress in establishing an Ombudsman. This office would be a key institution in improving the efficiency of public administration and in detecting corruption.

On 25 May the Prime Minister appointed the State Minister for the Economy Ali Babacan as EU Chief Negotiator. Reporting directly to the Prime Minister, he is also responsible for the Secretariat General for EU Affairs. Further structural changes to the institution and an increase in human resources have been announced by the Prime Minister. In September, the Prime Minister and the Chief Negotiator met a group of 85 NGOs to discuss ways of improving the dialogue with civil society in relation to the accession negotiation process.

Civil-military relations

Further changes have been introduced over the last year in order to align civilian control of the military with practice in EU Member States.

As regards the duties, functioning and composition of the National Security Council (NSC), implementation of reforms adopted in previous years has begun.

In October 2004 the NSC convened for the first time under the chairmanship of the new civilian Secretary General. This institution is currently composed of 7 civilian members and 5 military members. The Secretary General does not have the right to vote. The staff of the NSC Secretariat General decreased from 408 to 305  persons.

As provided for under the reforms, the NSC meets every two months. The minutes of such meetings are not made public. However in practice, a brief press release has generally been given after each meeting. During the last year, subjects discussed included international and security issues such as Iraq and terrorism, Cyprus, energy issues and EU-Turkey relations. 

In a press release of 30 December 2004, the NSC, while “welcoming the decision to give a date to Turkey for the opening of accession talks”, emphasised the “importance of eliminating some of the negative elements in the Conclusions of the Summit of December 2004 and of conducting the negotiation process aimed at membership on a sustainable basis, without conditions and discrimination against Turkey”.

With a view to increased transparency, on 30 November 2004 a press briefing was organised for the first time at the NSC headquarters, attended by some 200 Turkish and foreign journalists. A presentation of the NSC’s tasks and organisational structure was followed by a question-and-answer session, which covered a range of issues, including the National Security Document, relations with Greece, Cyprus, Iraq and the fight against terrorism, and domestic security. Since then, press briefings have been taking place at the initiative of the General Staff. 

Defence expenditure increased from EUR EUR6 985 billion to EUREUR8 198 billion, raising the share of defence spending in the budget from 6.7% in 2004 to 7.2% in 2005. However, with a share of 9.7% in the state budget, education spending is higher than defence expenditure for the second successive year. 

As regards parliamentary oversight of defence expenditures, the amendments to the Law on Public Financial Management and Control (PFMC), which was adopted in December 2003 and entered into force in January 2005, have the potential to improve budgetary transparency concerning military and defence expenditures. Extra-budgetary funds have been included in the general defence budget and will be dissolved by 31 December 2007. The adoption and implementation of appropriate secondary legislation should allow full ex-ante parliamentary oversight over military expenditures.

Legal regulations adopted in May 2004, including a constitutional amendment, have enhanced the ex-post audit of defence expenditure. The Court of Auditors has been authorised to audit defence expenditures on behalf of Parliament. With the amendment to Article 160 of the Constitution the exemption of state property owned by the Turkish armed forces from auditing has been removed. However, since the appropriate enabling legislation has not yet been adopted, the Turkish Court of Auditors is not yet in a position to carry out this task as provided for by Article 160 of the Constitution.

In addition to the reforms to the legal and institutional framework, it is important that the civilian authorities fully exercise their supervisory functions in practice. Further efforts are needed to raise awareness among elected members of Parliament and to continue to build up the relevant expertise among civilians. The question of strengthening parliamentary oversight of defence expenditure has increasingly become a subject of interest for the media and civil society.

As regards the formulation of security and defence policy, work has begun to prepare a new National Security Policy Document (NSPD). The purpose of the document is to identify threats to national security, to determine the priority of threats and to define strategies. The NSPD is drafted by the Secretariat General of the National Security Council with contributions from the Presidency, the Ministry of Interior, the Ministry of Foreign Affairs and the National Intelligence Service. The NSPD is subject to the approval of the Council of Ministers.

In January 2005, the Prime Minister sent a letter to the NSC Secretariat General stressing the responsibility of the government for Turkish national security before Parliament. The Prime Minister asked that the NSPD be restricted to essentials. Members of the General Staff have made statements on their perception of national security. Meanwhile, the definition of national security and defence strategy is increasingly becoming an item for open debate as reflected in the media.

The Turkish Armed Forces Internal Service Law, which defines the role and duties of the Turkish military and which contains articles granting the military a wide margin of manoeuvre, is unchanged. 

Article 2a of the National Security Council Law provides a broad definition of national security, which, depending on interpretation, could cover almost any policy field: “National Security means the protection of the constitutional order of the State, its nation and integrity, all of its interests in the international sphere including political, social, cultural and economic interests, as well as the protection of its constitutional law against all internal and external threats”.

The General Staff Military Court has launched proceedings against former high-ranking generals in relation to allegations of corruption. After the General Staff Military Prosecutor’s investigation the case was submitted to the High Military Court on 8 November 2004.

There has been no further progress with regard to the provisions of the Military Criminal Code permitting the trial of civilians before military courts. However, a reduction in the number of civilians tried before military courts can be observed between 2004 and the first five months of 2005.

The Gendarmerie is connected to the General Staff in terms of its military functions, but affiliated to the Ministry of Interior in terms of its law enforcement functions.  The control of the Ministry of Interior, of governors and district governors over the Gendarmerie should be strengthened in order to allow full civilian oversight on internal security policy.

The armed forces continue to exercise significant political influence. Individual military members of the NSC as well as other senior members of the armed forces have continued to regularly express their opinion on domestic and foreign policy issues via public speeches and press briefings. These statements concerned in particular Iraq, Cyprus, terrorism, the principle of secularism and EU-Turkey relations. In November 2004, the Deputy Chief of Staff made extensive comments on aspects of last year’s Regular Report. In March 2005, the General Staff issued an official statement reacting to incidents which took place at the occasion of the celebration of the Newroz (marking the beginning of the spring). In April 2005 at the headquarters of the Military Academies Command, the Chief of General Staff delivered a speech consisting of a comprehensive tour d’horizon on foreign policy and domestic issues.

The case against the teachers’ union, Eğitim Sen (see 1.3 Human rights and the protection of minorities, section on freedom of association) was launched under pressure from the General Staff in 2003 which asked the competent authorities to take measures with a view to enforcing Article 42 of the Constitution concerning mother tongue education. 

Since 2002, Turkey has made good progress in reforming civil-military relations. It is essential that Turkey consolidates reforms adopted in previous years and remains committed to further reforms in this area. Turkey should work towards greater accountability and transparency in the conduct of security affairs in line with Member States’ best practice. In particular, statements by the military should only concern military, defence and security matters and should only be made under the authority of the government, while the civilian authorities should fully exercise their supervisory functions, in particular as regards the formulation of the national security strategy and its implementation, including with regard to relations with neighbouring countries.

Initiatives such as the Task Force on Governance and the Military, jointly sponsored by the Center of European Security Studies and the Istanbul Policy Center, or the project on Democratic Oversight of the Security Sector promoted by TESEV and the Geneva Center for the Democratic Control of Armed Forces (DCAF) could make an important contribution. It is also important to promote better public understanding of reforms in civil-military relations, both at home and abroad.

Judicial system

The judicial system has been further strengthened via the adoption of structural reforms. Important progress was made with the entry into force on 1 June 2005 of the Penal Code, the Code of Criminal Procedure, the Law on Enforcement of Sentences and the Law on the Establishment of the regional Courts of Appeal.

The entry into force of the Penal Code (as well as the other laws mentioned above), adopted in December 2004, was postponed until 1 June 2005 due to concerns about the provisions concerning both organised crime and freedom of expression. In general, the Code adopts modern European standards in line with criminal law in many European countries. However, despite the introduction of a number of amendments by Parliament, concerns remain regarding articles which may be used to restrict freedom of expression (see 1.3 Human rights and the protection of minorities, section on freedom of expression).

The adoption of a new Code of Criminal Procedure represents a major step forward. It introduces the concept of cross examination of witnesses during trials, which did not previously exist in the Turkish legal system. The Code establishes the concept of plea bargaining. In order to reduce the number of unmeritorious prosecutions, the Code increases the discretion of prosecutors, who are now able to assess the strength of the evidence before preparing an indictment. Moreover, judges are given the power to return incomplete indictments. Under the new Code, criminal investigations must be carried out by a judicial police force under the authority of the public prosecutor. The Chief Public Prosecutor will be responsible for preparing annual evaluation reports on the judicial police under his command. The Code introduces the requirement that certain trials are to be recorded on audio and video tape. Judges and prosecutors throughout Turkey have received training on the Code. However, implementation of the powers to discontinue unmeritorious cases and the operation of the judicial police will need to be assessed. 

The new Code of Criminal Procedure provides that defendants and witnesses who cannot speak the Turkish language are to be provided with an interpreter free of charge. However, concerns have been expressed that as there are currently no interpreters trained in legal interpretation between Turkish and other languages used in Turkey, there may be difficulties in ensuring adequate standards of accuracy. Measures should be adopted to address this problem.

There are some concerns related to the provisions concerning the rights of defence and the rights of detainees in the new Code. Of particular concern is a provision restricting lawyers who are being prosecuted for, inter alia, charges related to terrorism, from representing individuals facing prosecution for similar crimes. In practice such a provision could have an impact on the ability of human rights lawyers, themselves often the subject of judicial harassment, to defend their clients (see 1.3 Human rights and the protection of minorities, freedom of association)

Implementing legislation, namely a revised Regulation on Apprehension, Detention and Statement Taking, a Regulation on Judicial and Preventive Search and a Regulation on the Judicial Police, also entered into force on 1 June 2005. 

The Law on Enforcement of Sentences, which also entered into force on 1 June 2005, brings clarity to this area by replacing numerous regulations which previously governed the enforcement of sentences. The Law is generally in line with EU best practice and addresses issues such as prisoners’ rights and obligations, order and discipline within prisons, and rehabilitation and reintegration of offenders. The Law establishes the concepts of community service and probation. However, there is a need for further training of prison officers on the content of this Law. 

Moreover, it is of concern that this Law provides that, at the request of the public prosecutor, and with the authorisation of an enforcement judge, a law enforcement officer may be present during meetings between prisoners and lawyers. This officer may also examine defence documents where there is a suspicion that the meetings are being used to enable communication with terrorist or criminal organisations. The provision has been criticised for being in contravention of Article 10 of the Turkish Constitution, which concerns equality before the law, and also raises questions in the light of certain international conventions to which Turkey is party. Concern has also been expressed that the provisions regarding juveniles are not fully in line with international standards and that juveniles may be imprisoned in adult prisons. The application of these provisions will need to be assessed.

The Law Establishing the Intermediate Courts of Appeal came into force on 1 June 2005. The establishment of the Courts of Appeal will substantially reduce the case load of the Court of Cassation and enable it to concentrate on its function of providing guidance to lower courts on points of law of general public importance. The Law provides that the Courts are to be established within two years of its entry into force.

Legal amendments adopted in July 2005 provide that juveniles accused of minor offences are to be tried before a single judge instead of before a panel of three judges. This constitutes a welcome development, as it should reduce the current backlog of cases before the juvenile courts. 27 New family courts were established.

The principle of the independence of the judiciary is enshrined in the Turkish constitution but is undermined by several other constitutional provisions. The Constitution provides that judges and prosecutors are attached to the Ministry of Justice in so far as their administrative functions are concerned. The Minister of Justice and the Undersecretary of the Ministry of Justice are members of the High Council of Judges and Prosecutors, which is responsible for the appointment, promotion, transfer, discipline and, broadly speaking, the careers of all judges and prosecutors. Furthermore, the High Council does not have its own secretariat and budget and its premises are inside the Ministry of Justice building. The judicial inspectors, who are responsible for regularly assessing the performance of all judges and prosecutors, are attached to the Ministry of Justice rather than to the High Council. Turkey should ensure the independence of the judiciary, in particular as regards the High Council of Judges and Prosecutors and the appointment of new judges and prosecutors. In the light of the impending recruitment of some 4,000 additional judges and prosecutors, the senior judiciary in Turkey have expressed concern that the influence of the Ministry of Justice in the appointment procedure may undermine the independence of the judiciary.

There is a close relationship between judges and prosecutors; the public prosecutor’s office is not clearly separated from the judge’s, which could create the impression that the prosecutor is able to exert undue influence. A clear institutional and functional separation of the professional rights and duties of judges and prosecutors needs to be established. 

A third expert advisory mission on the functioning of the judicial system took place in June 2005 and concluded that further progress had been made since the second visit. 

The new Code of Criminal Procedure and the Regulation on Apprehension, Detention and Statement Taking provide for arrested persons to be informed of their rights, including their right to free legal counsel. Legal representation was already compulsory for juveniles accused of criminal offences. The new Code widens the scope of compulsory legal representation by providing that representation by legal counsel is to be mandatory for all offences punishable by more than five years’ imprisonment. Of those accused of serious criminal offences, the number asking for a lawyer increased substantially between 2003 and 2005. However, there are reports that the police and gendarmerie continue to discourage detainees from requesting legal assistance. 

Judges and prosecutors have a considerable role to play in the implementation of reforms. Courts have in general continued to apply the European Convention on Human Rights (ECHR). The courts are reported to have referred to the Convention in 224 judgments since 2004. In general, however, it is difficult to discern a clear positive pattern, as provisions of Turkish law and even articles of the ECHR are not interpreted consistently. On the one hand, there are signs that the judiciary is increasingly integrating the new provisions. Several court judgements have been issued suggesting a positive development in areas such as freedom of expression, freedom of religion, and the fight against torture and ill-treatment and honour crimes. This trend also applies to the decisions of the Council of State. On the other hand, courts have issued judgments in the opposite direction in the area of freedom of expression, including against journalists. In the context of the Eğitim Sen case, the Court of Cassation issued a judgment ordering the closure of the trade union unless it made changes to its statute and in so doing, reversed the lower court’s judgements which had made explicit reference to the relevant provisions of the ECHR (see 1.3 Human rights and the protection of minorities, section on freedom of association).

It is of crucial importance that sustained efforts continue with respect to training judges, prosecutors and lawyers and where necessary, that they are reminded by the responsible authorities about their duties and obligations to respect the relevant provisions stemming from International and European conventions in the area of human rights and fundamental freedoms, as required under Article 90 of the Turkish Constitution.

More details on the judicial system can also be found under Chapter 23 – Judiciary and fundamental rights.

Anti-corruption policy

In the last year, some progress has been achieved in adopting anti-corruption measures. However, surveys continue to indicate that corruption remains a serious problem in Turkey. 

The new Penal Code punishes corruption-related crimes more seriously and the statute of limitations for such offences has been extended. The Code also introduces the concept of liability of legal persons in cases of corruption and contains provisions concerning corruption in public procurement.

In 2005 two corruption-related commissions were established in parliament to investigate the gasoline smuggling, and illegal public offering (money collection) and misuse of depositors.  

The Law on Access to Information w