US embassy cable - 02ANKARA8881

C O N F I D E N T I A L SECTION 01 OF 03 ANKARA 008881 
 
SIPDIS 
 
 
DEPARTMENT FOR EUR/SE 
 
 
E.O. 12958: DECL: 12/10/2007 
TAGS: PGOV, PREL, PHUM, TU 
SUBJECT: GOT'S LATEST REFORM PACKAGE - SCORECARD AND 
ANALYSIS 
 
 
REF: A. ANKARA 8586 
     B. ANKARA 7290 
     C. ANKARA 6116 
     D. ANKARA 8569 
 
 
Classified by DCM Robert Deutsch; reasons 1.5 b and d. 
 
 
1. (U) Summary: The GOT has prepared extensive legislative 
reforms designed to crack down on torture and remove barriers 
to free expression, association, and fair trial.  Parliament 
will likely pass the reforms quickly, possibly before or 
during the December 12-13 EU Summit in Copenhagen.  The 
reforms will bring Turkey significantly closer to meeting EU 
membership criteria.  End Summary. 
 
 
2. (U) The new GOT administration has completed its list of 
proposed legislative reforms; during Cabinet review the 
original 36-article draft (Reftel A) was broken into two 
packages, with a few controversial measures separated from 
the rest.  The parliamentary Constitutional and Justice 
committees will review the packages December 10 and the full 
Parliament is scheduled to take them up December 11.  GOT 
officials say they expect both packages to be approved in 
December, and hope the first can be passed before or during 
the December 12-13 EU Summit. 
 
 
3. (U) The following is a summary and analysis of the key 
elements of the two packages: 
 
 
------------- 
FIRST PACKAGE 
------------- 
 
 
4. (C) Torture: In torture cases, judges will not have the 
authority to suspend sentences or convert prison sentences to 
fines.  In cases where a civil servant is accused of torture, 
it will no longer be necessary to receive permission from the 
civil servant's supervisor in order to investigate. 
 
 
-- Analysis: Eliminates two important elements of the climate 
of impunity for torturers and sends a very strong signal that 
the GOT is getting serious about the problem.  In current 
practice, it is extremely difficult to investigate police 
accused of torture, and even when police are tried and 
convicted they rarely do jail time. 
 
 
5. (U) Non-Muslim Foundations: Non-Muslim foundations will be 
able to acquire property with the permission of the General 
Directorate of Foundations.  Currently, foundations must 
receive permission from the Cabinet. 
 
 
-- Analysis: Addresses one of the shortcomings of the recent 
legislation on non-Muslim foundations, but not others.  For 
example, existing regulations appear to apply only to the 
minority groups traditionally recognized under the Lausanne 
Treaty -- Greek Orthodox, Armenian Orthodox, and Jews (Reftel 
B). 
 
 
6. (U) Press: It will not be possible to force the owners of 
media outlets to disclose news sources. 
 
 
-- Analysis: The amendment refers to "owners," and it is 
unclear how broadly it would be applied.  A human rights 
attorney told poloff he believed it would also cover 
reporters. 
 
 
7. (C) Parliamentary/Political Party Eligibility: The list of 
criminal convictions rendering someone ineligible to be 
elected to Parliament or join a political party will be 
shortened.  Most importantly, convictions under Penal Code 
Article 312, relating to illegal speech, will no longer 
constitute an ineligibility.  Persons will generally be 
ineligible to join a political party if they have been 
sentenced to five or more years imprisonment, up from the 
current standard of more than three years.  Anyone convicted 
of committing "terrorist acts" will be barred from Parliament 
and political parties. 
 
 
-- Analysis: Article 312 is one of the measures most commonly 
used by the State to limit free expression and keep 
"threatening" figures (Islamists, leftists, Kurdish 
activists) out of politics.  Recep Tayyip Erdogan, leader of 
the ruling AK Party, is currently prevented from assuming the 
title of Prime Minister because of a 312 conviction.  One 
flaw in this amendment: there is no definition of "terrorist 
acts," a charge that has been applied broadly to include such 
acts as chanting slogans in Kurdish or demanding education in 
Kurdish. 
 
 
8. (U) Party Closure: A three-fifths majority of the 
11-member Constitutional Court will be required to close a 
political party; the law currently requires only a simple 
majority.  Also, it will be possible to close parties only 
for reasons stated in the Constitution; current law also 
allows for closure under the more extensive reasons cited in 
the Political Parties Law.  While the wording of the 
Constitution is designed to outlaw party activities that 
threaten the "independence and territorial integrity of the 
State," the Political Parties Law cites a long list of 
specific prohibitions, for example against parties that "rest 
on the foundation of region," "engage in activities abroad," 
or use languages other than Turkish. Parties will have the 
right to appeal closure rulings. 
 
 
-- Analysis: Closure, or the threat of closure, has been used 
repeatedly against Islamist and pro-Kurdish parties, and some 
of the measures have been approved by a simple 6-5 majority. 
 
 
9. (C)  Associations: A number of restrictions on 
associations will be removed.  It will be possible to create 
associations for any purpose not in violation of the 
Constitution or laws pertaining to national security, public 
health and order, and the liberty of others.  Current law 
includes a list of specific purposes for which associations 
cannot be created.  Associations will be required to use the 
Turkish language only in written communication with official 
GOT institutions; currently they are required to use Turkish 
for all communication.  Associations will no longer be 
required to notify a local government official 24 hours in 
advance of releasing a statement.  Turkish associations will 
have more freedom to establish branches abroad and interact 
with international associations, and international 
associations will have more freedom to operate in Turkey. 
 
 
-- Analysis: Eliminates a series of highly restrictive 
measures that have been used to restrict the free expression 
of various groups.  The current notification requirement for 
statements serves as a form of censorship -- local officials 
often ban statements before they are released.  These 
restrictions have damaged Turkey's international image, 
particularly due to their impact in foreign organizations. 
 
 
 
 
10. (U)  Attorney Access: Suspects charged in State Security 
Courts, which generally handle terrorist and separatist 
cases, will have the right to immediate attorney access. 
Currently they are entitled to see an attorney after 48 
hours.  Suspects accused of ordinary crimes are already 
allowed immediate attorney access. 
 
 
-------------- 
SECOND PACKAGE 
-------------- 
 
 
11. (C) Retrial Pursuant to ECHR Rulings: Defendants 
convicted in Turkish courts will be able to apply for a 
retrial if the European Court of Human Rights (ECHR) 
rules/has ruled in their favor.  This amendment will apply to 
cases in which the ECHR has ruled prior to the passage of the 
legislation, as well as to cases brought to the ECHR 
following passage.  However, it will not apply to cases under 
ECHR review at the time of passage.  A more limited measure 
passed in August (Reftel C) applies only to cases brought to 
the ECHR starting in 2003. 
 
 
-- Analysis:  The EU's Copenhagen Political Criteria require 
Turkey to address the issue of prisoners currently jailed for 
non-violent political activity, something the August 
amendment failed to do.  Thus, this measure removes one of 
the more substantial arguments against Turkey's EU candidacy. 
 This opens the door to a retrial in the high-profile case of 
Leyla Zana, former parliamentarian from the pro-Kurdish DEP 
Party, as well as an estimated 300 other current prisoners. 
The dubious exception for cases currently under ECHR review 
is designed to prevent jailed PKK leader Abdullah Ocalan from 
seeking a retrial.  This legal sleight of hand is unlikely to 
draw much protest from the EU -- local European diplomats 
tell us their governments do not want to see a new trial for 
Ocalan. 
 
 
12. (C) Student Suspensions:  Students suspended from 
universities for wearing Islamic head covering or for 
demanding education in Kurdish will have their suspensions 
erased and their disciplinary records annulled. 
 
 
-- Analysis: The new GOT has generally been downplaying 
Islamic issues to avoid alarming those concerned about AK 
Party's perceived Islamist roots.  Combining the headscarf 
issue with Kurdish language rights is a smart move -- it 
places the headscarf controversy in a broader context and may 
win points with a Kurdish community generally suspicious that 
AK will focus exclusively on Islamic rights at their expense. 
 
 
------------------------- 
COMMENT - WHAT'S MISSING? 
------------------------- 
 
 
13. (C) The AK Government has done everything possible, given 
the short period since it took power Nov. 18, to carry out 
human rights reform and enhance Turkey's EU prospects at 
Copenhagen.  AK has also indicated a desire to tackle more 
deeply rooted obstacles to reform, which will require far 
more than legislation.  AK leaders are now trying to build a 
broad consensus in favor of dismantling and reforming the 
restrictive State apparatus that has been a focal point of EU 
and western criticism.  In pursuing this agenda, AK is likely 
to draw substantial support from a Turkish public eager for 
change.  Nevertheless, it will face stiff resistance from 
bureaucratic and other elements of the State interested in 
maintaining the status quo -- and their privileged place in 
it.  The key obstacles that need to be addressed are: 
 
 
-- Redrafting Laws: The GOT packages are informed by a 
constitution, written under the direction of the military 
after the 1980 coup, that has been an obstacle to 
democratization.  PM Gul has announced his Government's 
desire to draft a new, more flexible and open constitution. 
However, AK will have to be careful to avoid charges that it 
is "undermining Kemalism" -- explicitly prohibited by the 
current constitutional framework -- or promoting 
"reactionary" Islam. 
 
 
-- The Southeast: The GOT has lifted the state of emergency 
in the southeast, but has no "post war" plan for developing 
the region (Reftel D).  The EU's Copenhagen Criteria require 
Turkey to develop such a plan. 
 
 
-- Civil-Military Relations: The GOT has increased the number 
of civilian members of the National Security Council, but the 
military still plays an often dominant role in government, a 
fact often cited by European diplomats skeptical of Turkey's 
EU candidacy (septel).  The Copenhagen Criteria specify the 
need to limit the NSC to its formal, advisory role. 
DEUTSCH