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ANALYSIS
OF THE SEVENTH HARMONIZATION PACKAGE With
the enactment of the Seventh Harmonization Package, the following progress has
been achieved in fulfilment of the Copenhagen Political Criteria. Freedom of Thought and
Expression
To enhance the
exercise of the right of freedom of thought and expression:
· In order to meet the criteria sought by the European Court of Human Rights in this area, the expression ”(incitement to) violence” has been incorporated into the text of Article 7 of the Anti-Terrorism Act, which deals with aiding and abetting terrorist organizations. As such, propaganda that incites to terrorism and other forms of violence continues to be a criminal offence. Freedom and Security of the Individual and the
Prevention of Torture To increase the
freedom and security of the individual:
For the prevention
of torture:
·
According
to the provisions of Supplementary Article 7, which has been added to the Code
of Criminal Procedure, the investigation and prosecution of cases of torture
and maltreatment are to be considered as urgent matters and as priority cases,
are to be treated without delay. Unless
absolutely necessary, hearings may not be adjourned for more than thirty days
at the most, and these hearings will also be held during the judicial
recess. The aim of this amendment is to
ensure the speedy conclusion of the investigation and prosecution of cases of
torture and maltreatment. The Prosecution of Civilians at
Military Courts With the amendment to Article 11 of the Act on
the Establishment and Trial Procedures of Military Courts, if criminal offences
such as inciting soldiers to mutiny and disobedience, discouraging the public
from military duty and undermining national resistance, are committed by
civilians in times of peace, these cases are not to be held in military
courts. Also with another amendment to
the article, the jurisdiction of military courts over civilians has been
narrowed. Public Expenditures and Transparency To ensure
transparency of public expenditures: The supplementary article added to the Act on
the Court of Accounts introduces provisions that allow the Court of Accounts,
to audit accounts and transactions in all areas where public means are used,
including those of all kinds of institutions, organizations, funds,
establishments, companies, cooperatives, unions, foundations, associations and
similar bodies which benefit from public resources, upon the request of the
Turkish Grand National Assembly, regardless of whether these are subject to
auditing by the Court. According to the second amendment to this article, the
principles and procedures to be observed when auditing State property in the
possession of the Turkish Armed Forces are to be established with a bylaw that
will be approved by Council of Ministers, and the Presidency of the Republic is
to be outside of the scope of this article. The Rights of the Child Article 6 of the Act on the Establishment,
Duties and Trial Procedures of Juvenile Courts has been amended to further
enhance the rights of children, in line with the provisions of the Convention
on the Rights of the Child, so that the term “child “ in this article refers to
anyone who is “below the age of eighteen years” whereas the previous expression
was “below the age of fifteen years”.
With this amendment, exceptions in the jurisdiction of Juvenile Courts
are removed. The Rights Related to Associations,
Peaceful Assembly and Demonstration and
Foundations Amendments
to the Act on Associations To
enhance the exercise of the right to establish associations:
·
Provisions
have been incorporated into Articles 1 and 4 of the Act on Associations that allow
legal persons to establish associations. Articles 8 and 31 of the Act on
Associations have been amended to align procedures with the amendments to
Article 1 and 4. The amendment to
Article 4 further reduces restrictions on the establishment of associations. In this context, the prohibition on the
establishment of association for a specific period of time for those who have
been convicted of criminal offences stipulated in Article 312 of the Turkish
Penal Code has been lifted. To enhance
the exercise of the right to become members of associations:
·
Amendment
to Article 16 of the Act on Associations reduces the restrictions on
membership. The provision which
prohibited persons convicted under Article 312 of the Turkish Penal Code from
becoming members of associations for a specific period of time was lifted. The amendment to Article 38 of the Act on
Associations broadens the right to establish associations by students
registered at institutions of higher education, by allowing associations also
on art, culture and science.
·
According
to the amendment to Article 10 of the Act on Associations, the maximum period
in which the Ministry of the Interior may conclude its evaluation of the
charter and the regulations of the association has been reduced from “ninety”
days to “sixty” days, thereby speeding up procedures in this area. To
enhance the exercise of rights related to associations:
·
Article
31 of the Act on Associations was amended to allow all associations to
establish more than one branch in provinces, central townships, townships and
villages. Also, persons establishing these branches are no longer required to
have prior six-months residency in the locale of this
branch. Amendments
to the Civil Code To
enhance the exercise of rights related to associations: Amendments to Articles 56, 64 and 82 of the
Civil Code provide for the establishment of associations by legal persons and
align procedures with the changes introduced by the amendment. The amendment to
Article 66 of the same act repeals the requirement for a member to submit six
months prior notice of the intention to terminate the membership. With another
amendment, the second paragraph of Article 94 of the Civil Code, which is
identical to the provision in Article 31 of the Act on Associations, requiring
persons establishing branches to reside for six months in the locale of this
branch, has also been repealed. Amendments
to the Act on Assembly and Demonstrations To
further extend the exercise of the right to peaceful assembly and demonstrations:
·
Articles
15 and 16 of the Act on Assembly and Demonstration Marches have been amended so
that if there is more than one assembly or demonstration to be held within the
boundaries of a province or in the provinces under the jurisdiction of a
regional governorate, the maximum period of time that some of these assemblies
or demonstrations may be postponed has been reduced from “thirty” to “ten”
days.
·
With
the amendment to Article 17 of the same act, assemblies and demonstrations may
only be banned where there is a “clear and present danger that a criminal
offence will be committed”. The maximum period of time for which a meeting may
be postponed or banned has been reduced from “two months” to “one month”.
·
With
the amendments to Article 19 of this act, the competence of the governor to ban
all assemblies and demonstrations in the province or districts for specific
reasons has been restricted to cases where “there is a clear and present danger
that a criminal offence will be committed”. The maximum period for postponement
and banning has been reduced from “three months” to “one month.” Amendment
to the Decree Law on the Establishment and Duties of the Directorate General
for Foundations The procedure to be followed by foundations to
obtain permission to undertake activities abroad has been simplified with the
amendment to the Supplementary Article 3 to the Decree Law on the Establishment
and Duties of the Directorate General for Foundations. Whereas permission to establish foundations
was formerly granted by the Council of Ministers, following a three-tier
permission process, the amendment designates the Ministry of Interior as the
final authority, in consultation with the Ministry of Foreign Affairs.
Cultural Rights and Freedoms Article 2 on the Act on Foreign Language
Education and the Learning of Different Languages and Dialects by Turkish
Citizens has been amended so that the learning of different languages and
dialects used traditionally by Turkish citizens in their daily lives may be
undertaken at the facilities of existing language courses. Previously, such
courses could only be initiated in new premises. In the context of enhancing the functionality
of the executive, the provision on obtaining the views of the National Security
Council when determining which foreign languages will be taught and learned in
Turkey, was deleted from the text of the article, leaving the Council of
Ministers as the sole relevant authority. Functionality of the Executive Article 4 of the Act on the National Security
Council (NSC) and the Secretariat General of the National Security Council has
been amended to revise the duties and competences of the NSC. The duties of the NSC were previously defined
in much detail, which allowed for misinterpretation of its advisory role. Articles
9 and 14 of this act, which gave the Secretariat General specific executive powers were repealed, and the Article 13 was amended, so
that the duties and competences of the Secretariat General fit in with those of
the NSC as a consultative body. Previously, the Secretariat General was given
broad powers that overlapped with the executive branch. The new text limits the
duties of the Secretariat General to the functions of a secretariat of the NSC.
With the amendment to Article 5 of this act,
the NSC will meet regularly
“every two months.”
According to the amendment, the NSC may also be convened upon the
proposal of the Prime Minister or be directly called to meeting by the
President. Previously, the Chief of the
General Staff also had the prerogative to convene a meeting. The amendment to Article 15 of this act revises
the procedure for the appointment of the Secretary General of the NSC. The
Secretary General will now be appointed upon the proposal of the Prime Minister
and the approval of the President, allowing for a non-military person to serve
in this office. The views of the Chief
of General Staff are to be obtained in case a member of the Turkish Armed
Forces is to be appointed to this post. Article 19, which provided that “the
Ministries, public institutions and organizations and private legal persons
shall submit regularly, or when requested, non-classified and classified
information and documents needed by the Secretarial General” of the NSC, was
repealed. Provisional Article 4, which has been added to
the Act, stipulates that a new bylaw on the rules and procedures regarding the
Secretariat General of the NSC is to be issued within three months of the
publication of the Seventh Harmonisation Package. (Unofficial by EUSG)
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