13 September 2010

The Constitutional Reform Package

The Constitutional reform package has been adopted with a majority of 58 percent of votes cast at a referendum where 77 percent of all eligible voters participated.

The constitutional reform package had been presented to a referendum pursuant to the provisions of the Constitution, due to the failure to achieve the required majority (336 votes instead of 376) at the Turkish Grand National Assembly (TGNA) on 6 May 2010.

While the Constitutional Court rejected an application which requested the annulment of the package as a whole claiming unconstitutionality of the structural changes that would be brought to the Constitutional Court and the Supreme Council of Judges and Public Prosecutors (HSYK), it partially annulled certain articles regarding the system of member-selection to the HSYK and the Constitutional Court.

The adoption of the constitutional reform package in the referendum of September 12 introduced the following changes:

·New rights are granted;

·The scope of the existing constitutional rights is expanded;

·New mechanisms are introduced for the protection of constitutional rights;

·The rule of law is strengthened;

·The Constitutional Court and the HSYK are restructured to align them with their counterparts in the democratic world; and

·Military jurisdiction is restricted.

As a result of the provisions contained in the constitutional amendment package, human rights and fundamental freedoms have been expanded and the Turkish constitutional system is brought in line with its international obligations. The amendments eliminated several shortcomings referred to in the judgments of the European Court of Human Rights (ECtHR), andthe fulfillment of a series of findings and recommendations put forward by the Council of Europe (CoE) Commissioner for Human Rights, the Venice Commission, the European Commission against Racism and Intolerance, the Monitoring Committee of the Parliamentary Assembly of the CoE, the Committee on the Elimination of Discrimination against Women, the UN Committee on the Elimination of Racial Discrimination and several other international supervisory bodies as well as those indicated in progress reports and on other occasions.

Significant improvements made in this context are summarised as follows:

Positive Discrimination

With the amendment to Article 10 of the Constitution entitled “Equality Before the Law”, positive discrimination gains a constitutional basis for persons who require social protection, such as women, children, the elderly and the disabled. The inclusion of positive discrimination in the Constitution is a significant improvement to strengthen the protection of constitutional rights.

With this amendment, it is guaranteed under the constitutional framework that special measures to be taken by the administration in respect of those who require protection shall not be construed to be “contrary to the principle of equality”. As such, the State will be free to take special measures for those in need of protection to ensure equality among all sectors of the society.

This amendment will enable Turkey to better fulfill of its obligations stemming from basic conventions on human rights, primarily the UN Convention on the Elimination of all Forms of Discrimination against Women, the UN Convention on the Rights of Persons with Disabilities, Convention on the Rights of the Child, the European Revised Social Charter and the Recommendation CM/Rec(2007)17 of the Committee of Ministers on Gender Equality Standards and Mechanisms.

This amendment will better ensure the implementation of the general measures aimed at preventing possible future violations found in the framework of the Nahide Opuz judgment of the ECtHR (In the case of Opuz vs Turkey lodged by Nahide Opuz, the daughter of a murdered woman, who had complained to the Turkish authorities that both she and her mother were facing domestic violence, the ECtHR ruled that Turkish authorities failed to exercise due diligence in protecting them from violence and held that there had been violations of Articles 2, 3 and 14).

Protection of Personal Data

With this amendment to Article 20 of the Constitution entitled “Privacy of Individual Life”, protection of personal data now enjoys constitutional guarantees. Everyone shall have the right to the protection of their personal data. This right entitles the individual to be informed of personal data, to access such data, to request their correction or deletion and to learn whether these are being used with the intended purpose.

This amendment comes at a time when improvements in the field of information technology magnified the difficulties and concerns that have emerged in the field of personal data protection. The amendment, which has been prepared in the light of Article 8 of the European Convention on Human Rights and the case-law of the ECtHR (Marper v. United Kingdom, decision of 4 December 2008), will align national legislation with international standards concerning the protection of personal data.

There also exists caselaw of the ECtHR (Ahmet Dağtekin judgment) which found that limiting a person’s right to access to personal data collected by the Government also limits the right to defend oneself. This amendment will provide an important development in preventing such violations in the future.

Rights of the Child

With the amendment to Article 41 of the Constitution entitled “Protection of the Family” (which now reads “Protection of the Family and Children’s Rights”), protection of the rights of the child is provided a constitutional basis, in accordance with universal principles and international conventions to which Turkey is a party. The amendment adds “rights of the child” to the heading of the Article and guarantees children the right to access “adequate protection and care” and to “establish and maintain a personal and direct relationship with his/her parents”.

The principle of the best interest of the child, which is considered an umbrella right of the Convention on the Rights of the Child, has been granted a constitutional safeguard for the first time. This concept requires the protection of the rights of the child and that the child will be heard when deemed necessary, in all decision-making processes involving children, including administrative and legal proceedings as well as legislative and policy-making processes.

It is now a constitutional duty of the State to take the necessary measures for the protection of children against all sorts of child abuse. Hence, certain rights contained in the UN Convention on the Rights of the Child, the Council of Europe Convention on the Exercise of Children’s Rights and similar international instruments have become an integral part of the Constitution.

Freedom of Organization

While the amendment made to Article 51 of the Constitution entitled “Right to Organize Labour Unions”, Article 53 of the Constitution entitled “Collective Bargaining and Right of Collective Bargaining”, Article 54 of the Constitution entitled “Right to Strike and Lockout” and Article 128 of the Constitution entitled “Provisions Relating to Public Servants” restrict the freedom to establish trade unions by business lines, the scope and extent of freedom of organization and especially union rights are broadened by the amendments made such as the abolition of the provision which prohibited becoming a member of more than one union in the same business line; granting of collective bargaining right to civil servants and other public officials in the manner retired civil servants could also enjoy; abolition of unnecessary restrictions imposed on the right to strike and lockout and the ruling that collective bargaining provisions regarding the economic and social rights granted to public servants are reserved.

The provision in Article 51 of the Constitution entitled “Right to Organize Labour Unions”, which prohibited holding concurrent memberships in more than one labour union in the same business line, was abolished, and steps are taken so that the principle of “union plurality” could be put into practice. By these amendments, especially the third paragraph of Article 53 relating to collective bargaining is abolished; collective bargaining right of which procedure and substance would be guaranteed by legal arrangements was granted to civil servants and other public officials by the provisions added to this provision.

With a view to guaranteeing civil servants’’ and other public officials’ enjoyment of the outcomes of the right to collective bargaining that has been granted to them, it is guaranteed by the amendment made to the second paragraph of Article 128 of the Constitution that collective bargaining provisions relating to economic and social rights be reserved in addition to the rule that personal rights of civil servants and other public officials shall be prescribed by law.

The third paragraph of Article 54 of the Constitution entitled “Right to Strike and Lockout” which provided that “the labour union is liable for any material damage caused in a work-place where the strike is being held” is also abolished. By the revocation of the seventh paragraph of Article 54, the prohibitions relating to politically-motivated strike and lockout; sympathetic strike and lockout; general strike and lockout; business place invasion; slowdown; reduction of the output and other resistance are also abolished. Therefore, a considerable restriction regarding the enjoyment of right to strike is abolished. Accordingly, the opportunities for the right to legal remedies in business life on the basis of universal principles required in contemporary democratic societies are increased and a significant step is taken for the development of civil society.

The amendments made in this context have been prepared within the framework of the conventions of ILO (International Labour Organization) regarding the Freedom of Unionization and Protection of the Right to Association and Right to Association and Collective Bargaining and European Social Charter (revised).

Furthermore, the decisions issued by the ECtHR regarding Turkey in 2008 and 2009 (Demir and Baykara, Enerji Yapı Yol Sen judgments) required the extensive usage of the right to organize labour unions and collective bargaining right to be guaranteed. Significant progress is achieved regarding the implementation of said decisions by this amendment.

Freedom of Movement

By the amendment made to Article 23 of the Constitution entitled Freedom of Residence and Movement, the reason of restriction for the provision “A citizen’s freedom to leave the country may be restricted on account of civic obligations, or criminal investigation or prosecution.” was narrowed down and it was amended as “A citizen’s freedom to leave the country may only be restricted on account of criminal investigation or prosecution depending on judicial decision”. Therefore, the ban placed on leaving the country on account of civic duties was removed and freedom of movement was extended. The obligation to obtain a judicial decision in order to restrict the freedom of movement is another positive improvement. It aims to prohibit arbitrary restrictions.
Right of Petition

Due to the amendment made to Article 74 of the Constitution, the right of petition is, for the first time, expressly defined as a constitutional right. Therefore, a right granted and protected by the standards of European Convention on Human Rights, case-law of the ECtHR and United Nations Covenant on Civil and Political Rights (Article 19) gains a constitutional ground.

The Ombudsman Institution

The amendment made to Article 74 of the Constitution entitled “Right of Petition” (which now reads “the right of petition, the right of knowledge acquisition and appeal to public auditor”) forms constitutional basis for Public Auditing system. The unconstitutionality problem that had caused the attempts to form an association of ombudsmen to fail is now overcome with this regulation.

The institution of public auditors which is foreseen to be established contingent to the TGNA will provide a more effective judicial and administrative framework for the preservation of the human rights by investigating the complaints regarding the management of the administration. It is thus enabled to make the administrations acts and actions subject to independent scrutiny.

When considered in conjunction with the entitlement of individual right to appeal to Constitutional Court, this regulation provides an additional means of resolving the matters between an individual and the authorities without having to apply to the European Court of Human Rights.

This amendment conforms to the Committee of Ministers of the Council of Europe decree regarding the “public auditors institution” (R(85)13), dated 23 September 1985.

Establishing an institution of ombudsman was one of the recommendations put forward when Turkey was in the process of being dispensed from the monitoring of the Parliamentary Assembly of the Council of Europe in 2004. Thus, a major step is taken in the way of fulfilling the aforementioned obligation.

Political Parties

By the amendment made to Article 84 of the Constitution, the right to vote and to stand for election is reinforced. The article in question provided that “the membership of a deputy whose statements and acts are cited in a final judgment by the Constitutional Court as having caused the permanent dissolution of his party shall terminate”. The amendment to this provision, which was incompatible with the case-law of the ECtHR, eliminates one of the legal consequences of dissolution of political parties. Thereby, the right to vote and to stand for election has been guaranteed in a stronger way.
Judicial Review of Supreme Military Council Decisions

By the amendment made to Article 125 of the Constitution entitled “Recourse to Judicial Review”, all decisions by the Supreme Military Council concerning exemption from the Turkish Armed Forces became subject to judicial review.

This amendment goes beyond the Court’s case-law and provides the right to an effective remedy. Further, it expands the limits on the scope of the judicial review. This amendment also emphasizes that reviewing the lawfulness of the acts and actions of the administration cannot be exercised by reviewing their expediency. This amendment clearly states that judicial authorities may not exercise the review of expediency and this further puts the emphasis on the separation of powers, which is one of the fundamental elements of the rule of law.

Judicial Review of Disciplinary Decisions

With the amendment introduced to Article 129 of the Constitution, disciplinary decisions against civil servants and other public officials have been subject to judicial review and the exceptions have been lifted. Thus, the legitimacy check for all disciplinary measures has been provided. This constitutional change is important as a requirement of the rule of law principle and in terms of ensuring the right to effective remedy.

Right to Individual Application to the Constitutional Court

The amendment to Article 148 of the Constitution, introduces the right to individual application to the Constitutional Court with regard to the fundamental rights and freedoms enshrined in the Constitution that fall within the scope of the European Convention on Human Rights. The introduction of the individual’s right to apply to the Constitutional Court following the exhaustion of usual domestic remedies is one of the most important changes enacted within the Constitutional reform package.

It is not possible to talk about a uniform practice within the European states in this field. However, this right has been introduced taking into consideration the practices of various developed countries particularly many European Union member states. The aforementioned right not only gives the State another chance to remedy the injustice that arise prior to the application to the European Court of Human Rights - which is considered as the last resort against human rights violations - , but also creates another mechanism for the citizens to claim their rights.

This new mechanism, which was devised within the scope of the opinions (CDL-AD(2004)024 & 034) issued by the Venice Commission upon the Constitutional Court’s request, is in compliance with the international standards.

Establishment and Membership of the Constitutional Court

The amendments to Articles 146, 147, 148 and 149 of the Constitution regarding the organization of the Constitutional Court, termination of membership, its functions and powers and functioning and trial procedure are of great importance for the objectives of judicial reform strategy and especially for strengthening the effective and impartial functioning of the judiciary.

With these amendments, the organization of the Constitutional Court, election of its members and its functioning are improved in the light of the applications in various countries and in accordance with the needs of our country.

The structure of the Constitutional Court and the method of election are changed and the number of its members is increased. Besides, the TGNA is granted the opportunity to elect members for the Constitutional Court. The sections which members belong to are diversified, their experiences and qualifications are enhanced and it is ensured that the legislative organ also has a role in the election of members and the membership is limited to a certain period of time. The representation of especially different elements of the justice mechanism and different segments of the society in the Constitutional Court is strengthened.

This amendment is in conformity with the observations of the Venice Commission dated December 1997 headed "The Composition of Constitutional Courts" (CDL-STD(1997)020).

Supreme Council of Judges and Public Prosecutors (HSYK)

By the amendment made to Article 159 of the Constitution entitled "Supreme Council of Judges and Public Prosecutors", the organization of the Supreme Council of Judges and Public Prosecutors and the authorization to arrange its working procedures and principles, and supervise judges and public prosecutors within the body of the Ministry of Justice is handed over to the Supreme Council of Judges and Public Prosecutors.

The structure of the Supreme Council of Judges and Public Prosecutors is rearranged in a manner which enables a wider participation for an effective functioning of the judiciary and strengthens its independence and tenure of judges. The sources from which the members of the Supreme Council of Judges and Public Prosecutors come from are diversified and a wider and more effective operation and control mechanism is organized. The permanent members of the Supreme Council of Judges and Public Prosecutors shall not be assigned in other positions than the ones provided by law during their term of office. In this way, it is aimed that the members are fully independent while taking decisions. With the Constitutional amendment, the Secretariat General of the Supreme Council of Judges and Public Prosecutors is established. In this way, the criticisms that the Council's using the Ministry of Justice as its secretariat is an application which undermines the independence and impartiality of the judges are set aside.

Supervision of Judges and Public Prosecutors

Article 144 of the Constitution entitled "Supervision of Judges and Public Prosecutors" (it is amended as "Supervision of Judicial Services") provides that the supervision of judges and public prosecutors and inquiry and investigations concerning them shall be made by inspectors of the Council. It is provided that the supervision of authorities lying beyond the scope of judicial activities such as execution, notary and prisons and the supervision of administrative acts and procedures of the public prosecutors shall be carried out by the judicial inspectors with the permission of the Ministry of Justice and internal auditors employed as judges or public prosecutors.

In this way, the supervision of judges and public prosecutors which is still under the authority of the Ministry of Justice is handed over to the Supreme Council of Judges and Public Prosecutors and a progress is made with the regard to independence and assurance and the principle of separation of powers is strengthened. Moreover, The Council decisions regarding dismissals from profession shall be subjected to judicial control and an effective appeal mechanism before domestic courts is provided.

Military Jurisdiction

By the amendments made to Articles 145 and 156 of the Constitution regarding military justice, the scope of authority of the military justice is rearranged. Within this framework, the scope of authority of the military justice is limited to the trial of military offences. It is provided that the offences against the state security, constitutional order and its functioning shall be dealt with by the courts of justice. It is also guaranteed by the Constitution that non-military persons, in other words civilians, shall not be tried by military courts except for time of war.

Provisional Article 15

The Provisional Article 15 of the Constitution which prevented prosecution of the members of the Council of National Security during the "12 September period", the governments formed during this period and members of the Consultative Assembly is repealed.