Turkey Announces Human Rights Reform

On 2 March 2021, President Erdogan of Turkey announced a series of reforms to be made in the next two years, aiming to align Turkey’s current human rights law and practices with international standards. This “Human Rights Action Plan” consists of nine overarching aims and almost 400 action points.

The nine overarching aims of the Human Rights Action Plan are:

  1. A more robust human rights protection system,
  2. Independence of the judiciary and strengthening the right to a fair trial,
  3. Legal foreseeability and transparency,
  4. Strengthening the protection of freedom of expression, association, and religion,
  5. Strengthening the right to liberty and security,
  6. Protection of the right to physical and moral integrity and the right to private life,
  7. Effective protection of the right to property,
  8. Protection of vulnerable groups and strengthening social welfare,
  9. High-level administrative and social awareness of human rights.

While the implementation calendar is yet to be announced, the action points under the overarching aims require decisions to be taken by administrative authorities as well as amendments to be made to existing laws in Turkey. This article will provide a snapshot of the action points that are most relevant to companies and individuals that do business in Turkey.

Better Investment Conditions Through Strengthening the Rule of Law and Property Rights

One of the main themes of the Human Rights Action Plan is improving  business and investment conditions for investors. In this regard, an Investment Ombudsman will be established to address disputes between the administrative authorities and investors, resolving any such disputes in a  timely manner, while staying independent and impartial.

Administrative peaceful settlement procedures will also be introduced as a new form of alternative dispute resolution, covering disputes between the state and legal or natural persons. Moreover, the plan pledges to prevent violation of property rights in (i) expropriation practices, (ii) enforcement and trial proceedings, (iii) zoning practices, and (iv) administrative actions.

First High-Level Mention of the UN Guiding Principles on Business & Human Rights in Turkey

The Human Rights Action Plan states that Turkey will prepare national guiding principles and conduct awareness-raising activities in line with the UN Guiding Principles on Business & Human Rights (“UNGPs”). The UNGPs is a non-binding international law instrument that provides a coherent legal framework to ensure that businesses respect human rights in their operations.

In our previous articles, we have pointed out Turkey’s lack of engagement with the UNGPs compared to other developed countries. In this regard, the mention of the UNGPs in a high-level national human rights document, announced by Turkey’s President, will certainly accelerate developments in business’ respect for human rights in Turkey. Therefore, it would not be a surprise to see Turkey develop its first National Action Plan in line with the UNGPs in the next two years.

Harmonization of Turkey’s Current Personal Data Protection Law with the European Union’s GDPR

The right to privacy has been a hot legal topic in Turkey since the introduction of the Personal Data Protection Law (Law no. 6698) in 2016. While it certainly improved Turkey's data protection practices, experts noted that Law no. 6698 falls short of GDPR.

Under the Human Rights Action Plan, Law no. 6698 will be harmonized with EU standards to ensure the protection of private life in the processing of personal data. Moreover, the administrative fines issued by Turkey’s Data Protection Board will be challenged before administrative courts, as opposed to criminal peace judgeships and this way appeal reviews will be possible.

Improved Judicial Proceedings and Transparency

With the acceleration of digitalization due to the pandemic, Turkey recently introduced electronic trials, in which proceedings take place in a virtual setting, in a few selected courts. Under the plan, the e-trial procedure will be extended to all civil courts, including commercial courts.

Also, in relation to the digitalization of judicial proceedings, the Human Rights Action Plan pledges to introduce artificial intelligence practices in the judiciary in line with the recommendations of the Council of Europe and without prejudice to human rights.

Furthermore, all first instance and appeal court decisions will be made available to the public. Until now, only Constitutional Court judgments and a number of Court of Cassation judgments were publicly available, making this a significant step towards improving the rule of law through transparency and judicial accountability.

Improved Efficiency of Individual Applications Before Turkish Constitutional Court

Since the constitutional amendments of 2010, the Turkish Constitutional Court has accepted individual applications regarding human rights violations. Both legal entities and natural persons can lodge individual applications, and this process serves as the final domestic remedy in human rights cases in Turkey before an application can be lodged at the European Court of Human Rights.

As part of the Human Rights Action Plan, Turkey’s President pledged to boost the effectiveness of the individual applications to the Turkish Constitutional Court. Although specific details of the reform are yet to be announced, under the plan, lawyers will be able to file individual applications before the Constitutional Court electronically instead of physically mailing applications, which could add up to hundreds of pages.

Also, to address the backlog of individual applications before the Constitutional Court, a human rights compensation commission will be established under the plan to compensate individuals for lengthy trials without the need to apply to the Constitutional Court.

Addressing the Issue of Insufficiently Reasoned Judgments

In recent years, insufficiently reasoned judgments from Turkish courts have posed a significant problem regarding the fair adjudication of justice in Turkey. Abstract, general, and stereotyped judgments from lower courts have resulted in violations of the right to a fair trial in numerous cases before the Turkish Constitutional Court and the European Court of Human Rights. Even following these standard-setting judgments from apex human rights courts, however, the issue of insufficiently reasoned judgments persists in Turkey.

In an attempt to address this issue, the new Human Rights Action Plan contains the following action points:

  1. Whether decisions are sufficiently reasoned will be considered, inter alia, in the promotion of judges and prosecutors,
  2. Judges and prosecutors will go through training to provide sufficiently reasoned decisions in line with Turkish Constitutional Court and European Court of Human Rights case law,
  3. Criminal chambers of regional courts of appeal will have the authority to overrule lower court judgments for undue restriction of defense rights and insufficient reasoning,
  4. In administrative proceedings, reasoned decisions will be written within 30 days of the judgment, as opposed to 60 days.

Amending the Review System of Criminal Peace Judgeship Decisions

Without much detail, the Human Rights Action Plan states that criminal peace judgeship decisions will be reviewed in a “vertical” manner. This means that higher courts will be able to review criminal peace judgeship decisions, which may include criminal courts of first instance and heavy penal courts.

For the last seven years, criminal peace judgeships have been operating in a closed-circuit system, meaning that an objection to a criminal peace judgeship decision could only be reviewed by the next criminal peace judgeship within the same court.

This closed-circuit system has received significant criticism from international human rights organizations and experts because criminal peace judgeships have a far-reaching mandate. This includes the authority to block online content, approve search and seizure requests, and most importantly, the authority to decide on or review the detention of suspects during an investigation phase. In this respect, the vertical review of criminal peace judgeship decisions is the most significant change brought by the new plan, which has the potential to improve the rule of law in Turkey if implemented properly.

What Impact Will Turkey’s Human Rights Action Plan Have?

One should be aware that the new Human Rights Action Plan does not exist in a vacuum. As Turkey’s President stated, it is closely tied to Turkey’s renewed effort to meet criteria for Turkish citizens’ visa-free travel to the EU and its commitment towards fulfilling EU membership criteria.

Turkey’s new Human Rights Action Plan is, undoubtedly, a progressive step towards better protection of internationally recognized human rights standards in Turkish law and practice. With that said, many of the action points reiterate existing constitutional provisions or are not specific enough to be fully assessed.

In this context, the plan's implementation will be more crucial than the announcement of proposed amendments. Turkey is a Council of Europe member state that has committed itself to democracy, rule of law, and human rights. But making improvements to these fundamental principles takes time and long-term effort. In this sense, the new Human Rights Action Plan should be seen as an initial step in the right direction for Turkey, that will be tested by time through implementation.