Strasbourg, 22 November 2001

Information Report on Local and Regional Democracy in Turkey

Rapporteurs: Mr Anders KNAPE (Sweden), Mr Hans-Ulrich STÖCKLING (Switzerland)

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INFORMATION REPORT

1. INTRODUCTION

1.1 Under the terms of Resolution 31 (1996) of the Congress and, more recently, Statutory Resolution 1 (2000) of the Committee of Ministers, the Congress of Local and Regional Authorities of Europe has been conducting a systematic programme of monitoring reports on the state of local and regional democracy in member states of the Council of Europe. So far some 30 countries have been investigated. The normal procedure is for an investigation to be conducted by a team led by a rapporteur or rapporteurs appointed by the Institutional Committee of the Congress or of a Chamber. The report of the investigation is placed before a Plenary Session of a Chamber or a Chamber and a Recommendation is made. The investigation is conducted and the report and Recommendation are formulated in the light of the principles and standards established by the European Charter of Local Self-Government of 1985 and the spirit of the draft European Charter of Regional Self-Government drawn up by the CLRAE in 1997.

1.2 On 30 May 2001, the Bureau of the Congress appointed Mr Anders Knape (Sweden) as the Congress rapporteur to conduct an investigation and to prepare a report on local and regional democracy in Turkey. Subsequently, Mr Hans-Ulrich Stöckling (Switzerland) was appointed as a second rapporteur representing the Chamber of Regions.

2. THE TURKISH INVESTIGATION

2.1 This report on local and regional democracy in Turkey, although carried out as a part of the general programme of the Congress, has certain special characteristics. The most important special feature of this investigation is that its principal purpose was to monitor the implementation of the earlier Recommendation 29 (1997) of the Congress. Turkey has already been the subject of a report under the programme and that Recommendation was the outcome. The circumstances of the original investigation, the context of the report and Recommendation, together with developments which have taken place since Recommendation 29 (1997) are all outlined in section 3 below. Although some general background commentary is provided, we have sought not to duplicate material already provided in the earlier report and Recommendation.

2.2 A second special feature of the investigation leading to this report is that the delegation were asked to look into the complaint concerning the suspension and/or dismissal of four mayors in south eastern Turkey lodged by the World Federation of United Cities.

2.3 A visit to Turkey was conducted during 3-7 October 2001 by the two rapporteurs who were accompanied by Professor Chris Himsworth (United Kingdom) as consultant, Mr Ulrich Bohner (Deputy Head of the Congress Secretariat) and Mr Daniil Khochabo (Deputy Secretary of the Institutional Committee). Two days were spent in Ankara and one day in Diyarbakir. Details of the programme of the visit are set out in the Appendix I to this report.

2.4 The rapporteurs and their team would like to thank the Turkish authorities in Ankara and Diyarbakir and Turkish delegation to the CLRAE for their valuable help during the preparation of this visit and contribution to this report. Special thanks should also be addressed to the Swedish and Swiss Ambassadors to Turkey and to the UNDP and EU representatives in Turkey who provided the rapporteurs with relevant information and their views on the state of local and regional democracy in Turkey.

3. THE GENERAL SITUATION IN TURKEY : RECOMMENDATION 29 (1997) AND SUBSEQUENT DEVELOPMENTS

3.1 The Republic of Turkey ratified the Charter of Local Self-Government on 9 December 1992, with accession taking effect on 1 April 1993. Turkey declared herself bound by the following Articles of the Charter:

Article 2

Article 3, paragraphs 1 and 2

Article 4, paragraphs 1, 2, 3, 4 and 5

Article 5

Article 6, paragraph 2

Article 7, paragraphs 1 and 2

Article 8, paragraphs 1 and 2

Article 9, paragraphs 1, 2, 3, 5 and 8

Article 10, paragraph 1

3.2 In the course of 1996, arrangements were set in place for the report on local and regional democracy in Turkey with Mr Halvden Skard (Norway) as the rapporteur. The visit of the monitoring group to Ankara took place during 4-8 December 1996 and their report was debated and the Recommendation adopted by the Congress on 3 June 1997.

3.3 Although it is apparent from the report that the monitoring group had received information about specific allegations about the treatment of the Kurdish population in the south-east of Turkey - in particular, allegations about the destruction of villages and cases of the harassment or dismissal of mayors and councillors, their investigation and report were, in fact, confined to more general matters, as these allegations were, in fact, dealt with by other Council of Europe organs, and in particular, the European Court of Human Rights.

3.4 As a background to their investigation, the group relied upon information in the CDLR Report on the "Structure and Operation of Local and Regional Democracy in Turkey" (1994) and also in a report on "Local Authorities in Turkey" (December 1996) prepared by the Turkish Ministry of the Interior and which they appended to their own report. The group did not present their own detailed description of the current system of local and regional government. Importantly, the monitoring group noted "on the part of the Turkish authorities and most of its interlocutors, a genuine wish for dialogue concerning prospects for local government reform" (Report, para.7). The group also noted that it "shared the views of quite a number of Turkish discussion partners that genuine local and regional government reform would, even if applied in the same manner to the whole of the country, contribute to create conditions for better exercise of democratic rights, including the Kurdish-speaking population in the South-East of the country. Without establishing any direct link between such a reform of local and regional government and terrorism, the Working Group felt that the reforms might help to wipe out frustrations that in some cases could be used as a basis for terrorist action. On the other hand, it is obvious that the Group shared the view of the Turkish authorities that no democratic state can accept terrorist action on its territory and that such action is, in itself, a major threat to the functioning of democratic institutions in general but, in particular, at local level." (para.8). The monitoring group went on to note two principal factors which might make reform of local and regional government in Turkey more difficult. On the one hand, long-standing traditions and also the laws of local government went back to the days of the Ottoman Empire or the early days of the Turkish Republic. In particular, the tradition of a highly-centralised unitary state might stand in the way of reforms needed by the modern Turkish state and society (para. 9(i)). Secondly, the weakness of the political system in Turkey reflected in the recent succession of governmental crises might obstruct progress (para. 9(ii)).

3.5 Nevertheless, the monitoring group saw the opportunity for a future dialogue between the Congress and the Turkish authorities on reforms which might be undertaken. It was hoped that the views of the monitoring group on the reforms then being proposed by the Ministry of the Interior which were subsequently appended to Recommendation 29 (1997) together with other more general observations and recommendations would form the basis of that dialogue. The Appendix to the Recommendation contained a substantial series of proposals for the improvement of local and regional government in Turkey. Some were linked directly to proposals already being made by the Ministry of the Interior. Others ranged more widely. The list of proposals cannot be repeated in full here but they recommend inter alia much fuller provision for village government; increased funding for local government; the need to end the “trusteeship” principle contained in Art. 127 of the Constitution; new provision for staffing of local authorities; the need to transfer powers from Governors to local authorities and democratic control of Governors; the transfer of state land to local authorities; the lifting of voting restrictions imposed by Art. 67 of the Constitution and many other recommendations.

3.6 It will also be helpful to take note of some other important developments concerning local government in Turkey which have taken place during the period between the 1997 Recommendation and the current investigation. In relation to local government, there have been two principal matters to report:

(a) Meeting of the Standing Committee of the Congress (Mini-Session) of 4 March 1999.

The business of this meeting was to receive a statement by Mr Muammer Türker (Director of Section in the General Directorate of Local Authorities, Turkish Ministry of the Interior) and for discussion. Mr Türker's statement (appended to the minutes of the meeting) focused mainly on proposals for local government and other administrative reform contained in the text of a draft law then awaiting debate in a plenary session of the Grand National Assembly. The statement noted that amendments of the Constitution were not proposed "owing to the lacking political power to assure a qualified majority needed". A provision (Art. 127(4)) which undermined the realisation of the ideal of local self-government - ie the provision authorising the Ministry of the Interior temporarily to remove organs (or members) of local and regional authorities - would remain.

(b) Draft Decree on the Modifications in Various Laws on Sharing Competences between Central Government and Local Authorities and the Principles concerning the Service Relationships

A draft of this Decree issued by the Turkish Council of Ministers was published by the Congress (CPL/INST(7)4) together with a legal opinion on the draft prepared by Professor Rusen Keles (CPL/INST (7)3) on 13 October 2000. As explained in that opinion, a decision to proceed by way of Decree rather than by way of a Law was taken to give the Government "a certain flexibility to realize its aims concerning local authorities more easily without being faced by the obstruction of the opposition parties in the Parliament" (Opinion,para.1). The draft Decree was intended (Art 51) to come into force on the date of its publication, with the exception of Art 26 (Amendment of Rules relating to the Revenue of Local Administration) which was to come into force on 1 January 2001.

The Decree consisted of ten Parts:

Part One (Arts 1-3) made provision for the general "distribution of duties" including provision for the duties of the central administration (Art 1), the principles of service relations ie between central and local administrations (Art 2), and for the establishment of a Local Administration Joint Committee (Art 3).

Part Two (Arts 4-14) contained a series of amendments to the Law of Municipalities (No 1580 of 3 April 1930).
Part Three (Arts 15-20) would have amended the Law of Large City Municipalities (to be renamed the Law of Metropolitan Municipalities) (No 3030 of 27 June 1984).

Part Four (Arts 21-25) would have amended the Law of Special Provincial Administrations (No 0000 of DATE).

Part Five (Arts 26-29) would have amended a number of laws relating to the revenue of local administrations.

Part Six (Arts 30-37) contained various amendments to laws relating to civil construction, shanty towns, the protection of cultural and material wealth and other matters.

Part Seven (Arts 38-39) would have amended the Law of State Tenders (No 2886 of 8 September 1983).

Part Eight (Arts 41-49) contained various further amendments, including int al provision for the training of local administration personnel (Art 40).

Part Nine and Ten (Arts. 50-52) contained various supplementary provisions.

In the event, however, the draft Decree was not issued. It is understood that the time-limited authority vested in the Council of Ministers under which the Decree would have been made was terminated before the Decree could be promulgated. There might also have been difficulties about using a Decree to create new criminal offences or to impose new taxes.

More recently a successor draft law has been published and introduced into the Turkish Grand National Assembly. The draft is considered below.

3.7 Another more general development has been Resolution 1256 (2001) of the Parliamentary Assembly of the Council of Europe on the Honouring of Obligations and Commitments by Turkey. This resolution was adopted by the Assembly at its 23rd Sitting on 28 June 2001 and was based on a Report prepared by Mr András Bársony (Hungary) and Mr Benno Ziever (Germany). The Resolution noted a commitment to the adoption by Turkey of the acquis communautaire including a programme for the honouring and commitments of Turkey as a member state of the Council of Europe. The resolutions recognised that much progress had been made but noted also a number of areas of continuing concern e.g. freedom of political opinion, the continuing state of emergency in south-east Turkey, the desirability of ratifying the Framework Charter for the Protection of National Minorities and the European Charter for Regional or Minority Languages; and the recent banning of the Virtue Party.

4. LOCAL DEMOCRACY IN TURKEY

4.1 It will be apparent from what has been said already that the report and Recommendation 29 of 1997 were written in the expectation that new legislation on local self-government, which had already been anticipated for some years, might follow quite quickly. It will also be apparent, however, that such legislation has not yet been enacted, although enactment may now be imminent. We consider below the prospects of what a new local government law might bring but we should preface that analysis with some remarks about the general circumstances in Turkey in which the reform of local government is being considered.

4.2 We have no doubt at all that the political environment in Turkey has changed greatly since 1997. The atmosphere in which the reform of governmental institutions including local government is being discussed is very different in 2001. Serious discussion of new legislation has been going on for some 10 years but it is only in the last two or three years that the atmosphere has become much more positive. There is a shared sense that the central government does really want to see reforms happen. Reluctant acquiescence in the need for change has been replaced by enthusiasm and commitment. Complete central domination of the reform agenda has been replaced by signs of a much greater dialogue with those outside central government. There is a much greater transparency in the conduct of public affairs.

4.3 No doubt these new conditions derive from a number of different factors but it is clear that big improvements in the security situation in the country are one factor. There are now only 4 provinces out of 81 subject to emergency powers. Probably dominating the reasons for change, however, is the enthusiasm of the government and many outside government for EU accession and the strong realisation that a pre-condition of eventual admission to the Union is substantial legal and institutional change. This means that not only should the acquis communautaire be incorporated but also that there should be a wider stream of reforms in the direction of human rights and democracy.

4.4 Whilst local government reform is an important element in this process, the most significant sign so far of commitment to change has been the programme for reform of the Turkish Constitution itself. In the week beginning 1 October 2001, 34 out of 37 reforms contained in a first package of proposals were successfully carried by large majorities in the Turkish Grand National Assembly and it is understood that a second package of amendments will be presented shortly. The amendments passed so far do not bear directly upon local government and Articles 73 and 127, both of which were criticised in the Recommendation 29 (1997) (and see further below) remain in place. Furthermore, it is understood that a proposed constitutional amendment which would have raised the status of treaties and conventions (including, presumably, the European Charter of Local Self-Government) within the Turkish legal system was one of the three in the first package which was not approved. On the other hand, there is no doubting the significance for local government, as well as other aspects of the operation of democracy in Turkey, of the lifting of the restrictions on political thought and expression and the use of languages other than Turkish. It remains important that Articles 73 and 127 are amended and it remains desirable (as also recommended in Recommendation 29 (1997)) that local self-government is given special recognition in the Constitution itself.

4.5 Another development of general significance has been the signature and ratification by Turkey of the European Outline Convention on Transfrontier Cooperation between Territorial Communities or Authorities. This should assist border communities to seek solutions to common problems.

4.6 The new spirit of reform is well-represented in the efforts currently being made to ensure the enactment of the most recent draft law on local government. Initially introduced into the TGNA in April 2001 and again in July 2001 the draft law began its legislative progress in August. It has already been widely publicised and discussed. The draft has been published on the web; it has been subject to expert scrutiny; it has been debated at public meetings; it has been adjusted in the light of representations made ; and it appears likely to receive serious attention from parliamentarians in the TGNA. An offer of drafting assistance from the Congress has been made, should opportunities for such an input arise.

4.7 Although an English translation of the draft law has not been available to us, our understanding is that it is based closely upon the text of the draft decree of 1999 referred to above. The law would first of all redefine the functions of and the relationships between the central government of the Republic, provincial governors, the special provincial administrations and municipalities both by general provisions and by specific amendments to earlier legislation. It is understood that the law would provide new opportunities for representatives of civil society to participate in municipal affairs; there would be new sources of local revenue (including a share of a tax on TV reception) and a significant increase in the overall funding of municipalities by central government; and the powers and responsibilities of municipalities would be extended. There is no doubting the enthusiasm for the law shown by representatives of the Ministry of the Interior and by most representatives of municipalities whom we met. Even if knowledge of the specific provisions of the draft law might be lacking in some cases, there was a commitment to the need for the law to be passed and implemented as a major first step in the direction of greater decentralisation and local democracy. Whilst predictions were always uncertain, it appeared that there was a good chance that the law would be passed by the TGNA by about the end of 2001.

4.8 In addition to the formal progress being made towards the new legislation, there are other signs of important developments relating to local government in Turkey - in particular programmes currently being pursued under the auspices of the UNDP and the EU. The UNDP’s project started from Local Agenda 21 generated by the Rio Conference in 1992 and has led to the creation of an active network of representatives of civil society in many Turkish municipalities forming ‘platforms’ for the debate of initially mainly environmental matters but extending now into matters of more general concern in their localities. The EU initiative would, we understand, be a programme for local government too. The rapporteurs believe that the Council of Europe should strongly support such initiatives and could be associated with them through its own network.

4.9 Whilst there are indeed all these signs of a developing positive atmosphere within which the reform of Turkey’s political structures and, in particular, local government may take place, there are also clear reasons for caution in our assessment. The programme of constitutional reforms is proceeding but it is recognised that actual implementation of the changes, in many cases involving substantial consequential amendment of related laws, is a long way off. There is much more legislative reform required and, in the light of Turkey’s tradition of fragile parliamentary coalitions, progress may be very slow. As noted above, Resolution 1256 (2001) on the Honouring of Obligations and Commitments by Turkey records many areas in which there is much progress still to be made.

4.10 In relation to local government itself, there is little reason to adjust the account contained in Recommendation 29 (1997) as a description of the current position. The general picture is one of a continuation of Turkey’s historic tradition of highly centralised government. The municipalities are, in most cases, lacking in significant powers and are badly under-resourced - a position made greatly worse by the recent reduction of the qualifying population for municipal status to 2000 (a figure intended to be raised by the new law to 10,000). There is, as a result, a substantial subordination of municipalities to the Governor and to central government. As one of our informants said: “If Ankara does not get smaller, we cannot grow.” And another: “Government cannot be managed at regional and local levels by shouting from Ankara”. We heard of smaller municipalities unable to undertake functions without central consent and finance and with significant barriers, especially delay, in the way. At the same time, municipalities lack transparency in their activities. Meetings and decisions receive inadequate publicity and the democratic accountability of mayors is very weak. At the provincial level, democracy is imperfect with the governors, though perhaps benignly, dominant. Village government outside the municipalities and affecting roughly a quarter of the population of Turkey remains extremely weak and lacking both structure and finance.

4.11 Nor can the changes to be made by the new law on local government be expected to bring about the fundamental reforms which will be required. The current draft is weaker than at least one of its predecessors - a draft of 1998 was mentioned to us as a stronger law. It is no longer formally described as a law on local government reform. Even to be effective in its own terms, there will be a need for much consequential amendment to related laws. We understand that otherwise a lot of contradictory provisions will remain on the statute book, pending further attention from the government and the TGNA.

4.12 And the new law’s own provisions, although widely welcomed for their symbolic value and their launch of what may become a sustained programme of real reform, do not address most of the main issues of local democracy. The law is to be seen much more as a move to the greater deconcentration of power rather the democratic decentralisation of power. In particular, it is expected that the strengthening of the powers of governors will bring much decision-making down to the provincial level. But governors are appointed by the state and, although they may acquire a commitment and loyalty to their provinces, their primary loyalty will always be to the state. Their political accountability to the province will remain weak. As far as the municipalities are concerned, the deconcentration of power to governors may improve lines of communication, and a reduction in the need for constant contact with Ankara may speed up administration. This will not, however, end the present conditions of administrative tutelage (still assured under Art. 127 of the Constitution) nor directly improve local democracy and accountability. The acute democratic deficit at this level will remain. Furthermore, although the draft law is welcomed because of its promise of greater financial empowerment for municipalities, judgement should be suspended until actual implementation. It is doubtful whether guarantees of greater funding (and resulting higher levels of staffing and service provision) can be taken at face value whilst a national financial crisis rages across Turkey.

4.13 Nor will the new law have a significant impact on village government. The expanded powers of the governor may bring greater efficiencies but there will be no reform of the weak structures of local self-government at the village level. Proposals to create “village unions” will not bring radical change.

4.14 All this suggests that the passing of the new law will be only a first step. Much more will remain to be done by way of implementation, further legislative measures and then significant work by local authorities themselves. One point which was impressed upon us is that authorities, although formally of uniform design and status, vary greatly on the ground. No doubt the impact of the new law will also vary in similar ways.

5. THE SUSPENSION AND DISMISSAL OF MAYORS

5.1 During our visit to Turkey, we were able to pursue our enquiries in relation to the complaints lodged about the suspended and dismissed mayors. Our informants were extremely helpful but our progress was restricted by the lack of access to full documentation (both the relevant laws and the administrative and judicial decisions in individual cases) in English translation and also by the lack of sufficient time. We are, however, able to make some observations at this stage on, first, the general principles and the general state of the law and then, secondly, on the four specific cases brought to our attention.

5.2 The legal provision of highest profile is Art.127 (4) of the Constitution. Against the background of earlier provisions in the Article to the effect that questions about the status of elected organs must be resolved by the judiciary, this provides that “as a provisional measure, the Minister of Internal Affairs may remove from office those organs of local administration or their members against whom investigation or prosecution has been initiated on grounds of offences related to their duties, pending judgement”. Other relevant provisions would be, however, contained in article 93 of the Municipalities Law (as amended) which provide powers to remove mayors from office. There are also relevant provisions in other laws. For instance, the law governing elections defines the qualification and disqualifications for the holding of elected positions and a disqualification under that law may result in the need for a mayor to be “dismissed”. Other provisions are contained in the Penal Code where conviction of certain specified offences results in disqualification from public office, either automatically or at the discretion of the court. Many of these provisions are not confined to the position of elected mayors. They extend to (or parallel provision is made for) other public offices. As we have said, our conclusions in this area have to be very provisional because our understanding of the precise terms of the laws is restricted. We can, however, state that

(a) There is a very broad recognition by all to whom we spoke of the high respect to be accorded to elected office. Only for the strongest of reasons should there be justification for the suspension or dismissal of elected personnel, including mayors.

(b) Similarly there was a recognition that the circumstances in which a suspension or dismissal can take place should be very clearly defined by law. It is our provisional view that there is room for greater clarity and, therefore, for a systematic investigation of all laws and their re-enactment in revised form. There appears to be uncertainty, for instance, about what it means for an offence to be “related to” a mayor’s duties. There is also doubt about the stage in criminal proceedings when a conviction takes effect for the purposes of justifying dismissal.

(c) There was also a recognition that the decision to suspend or dismiss a mayor should be the result of a decision by an impartial judge or prosecutor. Such a decision should not be that of a political entity such as the Governor or Minister of the Interior and for that reason we found no one who dissented from the proposition that Art.127(4) of the Constitution should be removed. It had no support.

(d) There was, however, an acknowledgement that the Minister of the Interior’s role of implementing the decision of a court can be justified. On the other hand, it is essential that there is, in a state committed to the rule of law, unrestricted access to the courts to challenge an allegedly improper use of that power, including, for instance, delay in the termination of a suspension when the justifying conditions have ended. The views of our informants varied on the crucial question of whether ministerial decisions might sometimes have been an abuse of power. No one doubted that suspect decisions should be challengeable in a court.

5.3 As to the individual cases, our views are as follows:

(a) Huseyin YILMAZ, Mayor of Agri.

Here the claim made is that the mayor who was elected on 18 April 1999 but suspended and then removed from office by the Minister of the Interior has not been reinstated despite a finding by the Court of Cassation and then the Ankara Security Court that the mayor’s conviction and imprisonment were “cancelled” by the effect of an amnesty. It had further been claimed that the suspension/removal did not relate to an offence related to his duties as was required by the Constitution and the Law on Municipalities. We were, however, unable to assess the strength of these claims since English texts of relevant documents were not available and, in any event, a decision on the mayor’s own challenge to the legality of the Minister’s failure to reinstate was still pending in the Administrative Court.

(b) Zeynel BAGIR, Mayor of Lice

Here the complaint was that the High Electoral Council had disqualified the mayor elected in April 1999 on the grounds of a criminal conviction in 1989 despite the fact that the High Council had earlier approved the mayor’s candidature and that the mayor had not, in any event, lost his civic rights by virtue of the conviction.

Again we were unable to make a final assessment. Further enquiry must be made into the legislation on which the High Electoral Council’s decision was based and a translation of the decision (not available to us) and the reasons behind it needs to be studied.

(c) Mehmet Salih AKTAR, Mayor of Ozalp

In this case, the claim was made that the mayor’s suspension from office was ended by his reinstatement after a delay of six months from the date of a decision in his favour by the Danistay (Administrative Court). The suggestion was further made that the reinstatement was effected only after the mayor had resigned from one political party (HADEP) and joined another (Motherland Party). In the time available to us, we were unable to discover whether the reinstatement of the mayor had indeed been unduly delayed; if so, for what reason; and whether the decision to reinstate had been affected by a switch in the mayor’s political allegiance. There is a need for further investigation.

(d) Ferman OZER, Mayor of Semdinli

The issue here was whether the suspension and removal from office were improper on the grounds that the offence for which the measures were imposed was not, as required, “misconduct in the performance of his duties”. This requires further investigation. We were left in doubt, in the absence of thorough legal argument and advice, about how the law should be applied and whether it had been applied correctly in this case.

5.4 One other investigation we were able to begin but could not carry through to a conclusion was how these four cases fitted into the broader picture of suspensions and dismissals of mayors in recent years. Figures supplied to us showed that some 23 mayors in 2000 and 21 (to August) in 2001 had been the subject of decisions by the Minister. Of these, the largest numbers fell into the category of “investigation on corruption” or “arrest by the judiciary”. Four in 2000 and two in 2001 were categorised as “supporting terrorist organisations”. We also took note of the fact that suspensions and dismissals were distributed across nine different political parties.

6. CONCLUSIONS

6.1. It will be evident from the terms of our report that, although the visit to Turkey was extremely valuable in throwing much light on the subject matter of our enquiries, we are able to draw only provisional conclusions. On the general state of local self-government, the new draft law seems to be about to make rapid progress through the TGNA and it has raised expectations of long-awaited reform. On the other hand, the extent of its eventual impact remains very hard to assess because its final text is uncertain and the pace of further progress on the reform programme is not yet known. On the suspension and dismissal of mayors, we are satisfied that the case for the removal of Art.127(4) of the Constitution has again been convincingly made and that, almost certainly, in this extremely sensitive area there is a case for the wider reform of the law in the interests of guaranteeing the rights of elected officials and clarity and certainty in the rules to be applied.

6.2 We, therefore, conclude with the following recommendations:

a) On local self-government in general and on political context

The rapporteurs noted the positive atmosphere and frank dialogue that presided over the discussions both with the government and the local elected representatives.

Reform of local self-government has been on the political agenda for almost 10 years and now the Turkish Grand National Assembly (TGNA) is currently examining a new draft law on this subject. The rapporteurs renew the Council of Europe’s offer to assess the draft law in due time if the Turkish authorities make a request in this respect.

The rapporteurs noted with satisfaction that the UN Habitat II conference, held in Istanbul in June 1996, had a positive effect on the commitments of the Turkish authorities in the field of local democracy. Since 1997 there has been a rise in awareness in public opinion with regard to local authorities and the new draft law has been widely discussed with NGO’s, in the newspapers and amongst the political parties.

There seems to be political consensus on the necessity to achieve real reform.

Moreover, the Turkish Association of Municipalities has closely worked with the politicians both in Parliament and the government on this draft law.

b) on the Constitution

The rapporteurs welcome recent amendments to the Turkish Constitution voted by the TGNA which although do not deal directly with local authorities would indirectly influence them. They note that so far no amendment has been tabled as to Articles 73 and 127 of the Constitution, which contain provisions on local authorities and taxes. They hope that a second package of amendments which is going to be introduced to the Parliament will include proposals as regards Article 127 in line with Recommendation 29 (1997) of the Congress.

It is widely felt in Turkey that changes in the Constitution can gradually improve the state of local democracy.

It should be recalled that the Congress suggested amending Article 127 of the Constitution in Recommendation 29 (1997). A clear reference in the Constitution could be made to the principle of subsidiarity, if possible by making reference to the European Charter of Local Self-government. The Constitutional guarantees for local self-government could include items such as finance, property and staff.

c) on the new draft law

The Committee should give a positive welcome to the changes so few proposed in the current draft law and give its strong support to their enactment and implementation.

The new draft law seems to be a step forward toward local democracy in many respects although some important issues have not been addressed in the draft. The new draft law seems to aim to provide a wider framework for the functioning of local authorities without reducing the central government’s powers (especially those of the governors) and would still keep a rather tight control over local authorities. Even though the new draft law would seem not to be completely adequate it has raised the expectations of local authorities.

It is widely felt that the draft law would bring more deconcentration than political decentralisation and would mainly serve to shorten bureaucratic channels.

The Committee should offer any additional assistance that might be helpful to the reform process, in particular to guide towards compliance/compatibility of new laws with the European Charter on Local Self-Government.

d) on participation at local level and transparency

The rapporteurs welcome the new draft law’s provisions aimed at strengthening public confidence in local authorities, building closer links between local authorities and local communities and at enhancing transparency.

The rapporteurs put on record in particular that under the draft law:

- Minutes of municipal council meetings can be given to anyone who requests them with a certain fee;

- Quarterly financial tables will be made public at the Ministry of the Interior as well as in the municipalities.

Some technical issues also seem to be clarified concerning the planning process, transport coordination and urban development.

The rapporteurs share the view that partnership on a local level is as important as legislative changes and both should be put into practice simultaneously.

They feel that today there is a need in Turkey to convince people to support local democracy and the reforms designed to develop their role. They consider that after acceptance of Turkish candidacy to the EU awareness has risen in Turkey about European standards on local democracy and primarily those laid down in the European Charter of Local Self-government.

The rapporteurs also noted that the Ministry of Interior wants to increase the democratic spirit of local councils, to make civil society and muhtars (villages’ headmen) participate more actively in local affairs.

The rapporteurs were positively impressed by the ongoing programmes in the field of local democracy carried out by the UNDP and the European Union and believe that the Council of Europe should support such actions as valuable contributions to the development of local democracy in Turkey.

As pointed out in Recommendation 29 (1997) the increasing attendance of local community’s representatives at provincial and municipal councils is a significant element of transparency and accountability. However, this should not hamper the normal decision making process which should be reserved to democratically elected representatives.

e) on transfrontier co-operation

The rapporteurs consider the signature and ratification by Turkey of the European outline convention on transfrontier co-operation as a positive step toward more democratic local authorities and hope that this instrument will allow border communities to seek solutions to common problems.

f) on control of local authorities

The rapporteurs think that control by central authorities over local authorities still remains too strong. “Trusteeship” remains in practice from a legal point of view.

The rapporteurs would like to recall that the Congress has already pointed out in Reccommendation 29 (1997) the “trusteeship” mentioned in Article 127 of the Constitution should be abolished in general and maintained only for the question of conformity of local and regional government’s act with the Constitution and the law.

g) on local and provincial authorities’ powers

According to information gathered by the rapporteurs it seems that it is intended in the new draft law to amend the list of municipalities powers so as to allow them to provide a limited number of new services, namely rescue and relief activities at the time of disasters, emergency, sports, and health. Municipalities would be allowed to be involved in housing and real estate activities including the expropriation, purchase, sale and allocation of land. It also seems that local authorities, under the draft law, would be able to be involved in other activities, such as education, culture, health, social aid, sports by providing land and equipment for other public agencies, as well as, construction and maintenance of these facilities. However, it would seem that the management will not be left to local administrations alone and that co-operation with all public agencies is encouraged and supported.

As stressed in Reccommendation 29 the transfer of powers to governors brings central administration closer to citizens and is therefore a positive step. However, in the long run this deconcentration can in no way replace a transfer of powers to the democratically elected local and regional authorities.

The rapporteurs share the concern of many Turkish local elected representatives that in the draft law a few new powers are given to municipalities and many of them are already being performed by public agencies.

h) on local and provincial authorities’ finances

The rapporteurs are aware that municipalities in Turkey have been affected by the economic crisis and a large part of current allocations serve to pay debts.

The rapporteurs welcome the fact that in the draft law it is foreseen to increase the total expenditure of local authorities from 5,5% to 20%.

They share the view of Turkish counterparts that source production capacity of raising resources locally, which seems to be limited for the time being, should be increased. The councils could be granted the right to levy local taxes.

New sources of revenue of local authorities have not been allocated so far and local authorities would not be entitled to change taxes rates under the new draft law, which actually requires a constitutional change. In this respect, it might be necessary to amend Article 73 of the Constitution.

The rapporteurs welcome the fact that transfer of State land to municipalities is foreseen in the draft law.

i) on Governors’ powers

The rapporteurs note that governors who are appointed by central government for an unlimited period of time and act as the executive of special provincial administrations have a strong say in economic and social fields in the provinces and have important resources to perform their duties.

Under the draft law more powers would be transferred to the governors than to elected provincial councils and municipalities. Until now the governor’s powers have not been reduced. Some reductions would be foreseen in the draft law but the draft seems however to enhance governor’s powers.

No suggestion to elect governors has been put forward, so far.

The Governors represent both central government and local authorities but the rapporteurs believe that they act more as representatives of the State. As it has been already underlined in Recommendation 29 (1997) their decision-making power is delegated by the central government without democratic control at local level. The rapporteurs believe that provinces should be able to elect the executive responsible to provincial councils.

j) on villages

Although the new draft law seeks to achieve certain economies of scale in municipalities as far as villages are concerned, it seems that this issue is not addressed. As pointed out in Recommendation 29 it is to be regretted that the endeavours for reform of local government in Turkey do not foresee a thorough reform of the Village Act dating back as far as 1924 (Law No. 442).

Allowing villages to function in a genuine system of local democracy could also constitute a contribution to stopping the heavy trend of migration out of villages and into major urban areas.

k) on Councils and Executive committees

Provincial and local councils seem still have limited powers and tools in the decision-making process in comparison with governors’ and mayors’ powers.

As it was underlined in Recommendation 29 (1997) in the so-called “executive committees” which are responsible for running the local affairs civil servants seemed to be in majority. In the rapporteurs’ view, civil servants should be present at meetings of the executive committees only in a consultative capacity.

l) on training

The rapporteurs consider that training activities for local elected representatives and municipal staff is of particular importance in the context of reform. They welcome the fact that the Turkish Munipalities Association has held 18 seminars so far with a view to training local officials.

The rapporteurs express their strong support of EU and UNDP programmes aimed at raising public awareness on local issues.

m) on suspension

The rapporteurs believe that the procedure of suspension by the Minister of the Interior of local elected representatives should be amended. The judiciary should play a decisive role in suspending those local elected representatives who have infringed the Constitution or the law in the exercise of their functions. The Constitutional reform should therefore also deal with the right of the Minister to suspend or remove from office organs of local administration. As already pointed out in Recommendation 29 (1997) such a decision should be left to the judiciary which should be able to make quick provisional decisions, at the request of the competent administrative organs.

The rapporteurs recall that as pointed out in Recommendation 20 (1996), in accordance with Article 11 of the Charter, there is a right of recourse to judicial remedy, without prejudice to the rules laid down in the European Convention for the Protection of Human Rights and Fundamental Freedoms, and that respect for elected members’ right to exercise freely their functions should, in general, imply that, pending the outcome of any appeal, no action shall be taken, except in the case of exceptional and duly justified circumstances.

n) on local elections

The citizens should be given the opportunity to form local lists to stand for local or provincial elections. At the same time, local or regional political parties should be granted the right to present their lists at local or provincial elections without being necessarily recognised at national level.

o) on South-Eastern Anatolia

In the last two years there has been an improvement in the situation in South-Eastern Anatolia. Pressure from the security forces seems to have weakened. However, people have not completely returned to their homes in villages. Those who have returned seem not to completely enjoy freedom of movement.

The rapporteurs understood that the state of emergency which is still applied in four provinces of South-eastern Anatolia would soon be lifted.

The rapporteurs hope that recent constitutional changes namely in Articles 26 and 28 would promote cultural and linguistic rights in Turkey¹.

7. FURTHER ACTIONS

a) The rapporteurs suggest that the Congress should keep the reform process under review and, for this purpose, it should commit to an early full-scale review of local democracy in Turkey, once the new law has been enacted and in the latest in 2003. At that point, a better assessment of the situation could be made of the extent of change since Recommendation 29 (1997) and generally;

b) The rapporteurs suggest that the Committee or the Bureau of the Congress renew rapporteurs offer to assess in due time and before enactment the new draft law;

c) If the new draft law were adopted quickly by the TGNA, the Bureau of the Congress might consider inviting the Minister of the Interior to the next plenary session or an upcoming mini-session;

d) The rapporteurs suggest that all necessary enquiries should be made to resolve the cases of the four specific suspensions/dismissals already referred to the Congress (see the Appendix II). To that end, it is recommended sending an expert team to Ankara at a later stage to discuss specific procedures enforced in these cases.

e) It is also recommended making this report public and transmitting it officially to the Committee of Ministers, Parliamentary Assembly, EU, OSCE and UNDP.

f) The rapporteurs ask the Committee to approve these conclusions and endorse the above-mentioned proposals.

APPENDIX I
CLRAE Rapporteurs visit to Turkey

4-6 October 2001

CLRAE delegation

Mr Anders KNAPE (Sweden) Vice-Mayor of Karlstad, Chamber of Local Authorities, Rapporteur

Mr Hans-Ulrich STÖCKLING (Switzerland) State Minister of the County of St-Gallen, Chamber of Regions, Rapporteur

Prof. Chris HIMSWORTH (United Kingdom) Consultant, Law School, University of Edinburgh, member of the Group of Independent Experts on the European Charter of Local Self-Government

Mr Ulrich BOHNER Deputy Head of the CLRAE Secretariat

Mr Daniil KHOSHABO Deputy Secretary of the Institutional Committee of the CLRAE

Mrs Dilek ÖNAY Interpreter

Programme

APPENDIX II

Congress of Local and Regional Authorities of Europe

Please quote: CPLRE/ao

Strasbourg, 11 October 2001

Dear Mr Kavas,

I should like to refer to our meeting held in Ankara on 4th October last and on behalf of the CLRAE delegation to thank you once again for the opportunity which the delegation was given to have open discussions on the state of local and regional democracy in Turkey. It is important to underline that the spirit of our discussions proves the commitment of the Turkish authorities to pursue dialogue with the CLRAE on the progress made as regards Recommendation 29 (1997).

I should like to express our gratitude to the Ministry for its warm hospitality during our stay in Turkey, in particular to put on record the valuable co-operation of Mr Muammer TÜRKER, National Secretary to the Turkish delegation to the CLRAE, and thank all the Ministry staff involved in the preparation of our visit.

The CLRAE delegation welcome the open atmosphere and frank dialogue which presided over our discussions and allowed CLRAE rapporteurs to better understand Turkish government plans to amend the current legislation and to further step up reforms in the field of local democracy.

We were also pleased to hear that the package of constitutional amendments voted by Parliament on the eve of our visit to Ankara would have a positive, if indirect effect on local authorities in Turkey.

In order to strengthen our co-operation I should like to formally renew the CLRAE offer to prepare an assessment of the new draft law currently examined by the Turkish Grand National Assembly with a view to analysing its compliance with the European Charter of Local Self-government. The Council of Europe stands ready to provide such an expertise if the Turkish authorities make such a request.

Mr Kayhan KAVAS

Director General of Local Authorities

Ministry of Interior

Ankara, TURKEY

c/o Mr Muammer Türker, Secretary of the Turkish delegation to the CLRAE, Head of International Relations Division, General Directorate of Local Authorities, Ministry of Interior of Turkey, fax + 90 312 425 37 69

cc Prof. Dr Yilmaz Büyükersen, President of the Turkish delegation to the CLRAE,

Mr Yavuz Mildon, Vice-President of the CLRAE

As you know the rapporteurs are due to present an information report at the next Institutional committee meeting which will take place in Strasbourg on 7th November next. The report will deal with all issues discussed during our visit to Turkey. Upon the presentation of the report the Committee may recommend preparing a full scale report for the next plenary session of the Congress (4-6 June 2001).

The Secretariat will of course keep you informed about any further developments with regard to the report.

You will remember that one of the particular issues discussed during the visit was related to the suspension of four mayors in south-eastern Anatolia, namely mayors of Agri, Lice, Özalp and Semdinli. The Ministry has already provided the delegation with some general information on that issue. However, in order to better understand the procedures enforced in each case and the current situation of the four mayors, the rapporteurs would appreciate receiving from the Ministry comments on the information gathered by the delegation in the course of the visit. We would be obliged if you could provide such comments before the Institutional committee meeting of 7th November so as to enable the rapporteurs to report back to the Committee in due time.

Yours sincerely,

Ulrich BOHNER

Deputy Head of the Congress Secretariat

Appendix Summary of information gathered by the rapporteurs on suspension of the mayors of Agri, Lice, Özalp and Semdinli.

APPENDIX III

Information provided

by the Ministry of the Interior of Turkey

with regard to suspension

of the mayors of Agri, Lice, Özalp and Semdinli

1. Huseyin YILMAZ, Mayor of Agri

Mr Yilmaz was elected Mayor of Agri in the municipal elections held on 18 April 1999. He was suspended from office by decision of the Ministry of the Interior based on Article 127/4 of the Constitution and Article 93 of Law No. 1580 of 24 February 2000 on municipalities.

Mr Yilmaz was sentenced to 3 years and 9 months’ imprisonment by the second division of the Ankara Security Court in proceedings that had begun before his election and were only concluded in 2000. The Ministry of the Interior based its decision to suspend Mr Yilmaz on the Ankara Security Court’s judgment. Mr Yilmaz had lodged an appeal on points of law against the Security Court’s decision and the trial was not over when he was suspended from office. In this case, however, the decision was based on a case predating the election of Mr Yilmaz as mayor. In its decision of 23 January 2001, the Court of Cassation granted Mr Yilmaz’s appeal and set aside the Security Court’s judgment based on a recent law (No 4616) enacted on 22.12.2000 which prescribes conditional release and postponement of certain cases. So far and following the Court of Cassation decision, Mr Yilmaz has not been reinstated in office and lodged an appeal before Administrative Court against the Minister’s decision to suspend him from office. The Administrative Court of Erzurum refused his appeal for suspension of execution on 20.06.2000 and for annulment on 21 September 2000. Mr. Yilmaz took the former decision to the Regional Administrative Court and his case was refused by this court on 12 July 2000. He took the latter decision to the Council of State (Supreme court on administrative cases, namely Danistay) and this, too, was refused on 22 February 2001.

The decision of any court does not automatically enables mayors or other elected representatives to be reinstated in office. Even if a Ministerial decision is cancelled by verdict of the Council of State, the Minister has to make a further decision in line with the verdict within 30 days.

2. Zeynel BAGIR, Mayor of Lice

Mr Bagir was elected Mayor of Lice in the municipal elections held on 18 April 1999 and took office on 21 April 1999. Following a decision by the High Electoral Council on 19 June 1999, he was definitively removed from office.

He is accused of not being eligible to stand for election following a conviction in 1989. In order to stand in the municipal elections, Mr Bagir followed the necessary procedure in March 1999 and obtained the authorisation to stand from the High Council.

Mr Bagir’s appeals to the High Electoral Council have been unsuccessful.

As stated in the High Electoral Council’s decision dated 19 June 1999, the decision was based on the article 11/e of the Elections Law (no 2839) which is referred by articles 9 and 36 of the Local Elections Law (no 2972). Above articles briefly states that deletion of any person’s criminal records does not entitle that person the right to stand for elections. The copies of above mentioned articles are also appended.

3. Mehmet Salih HAKTAN, Mayor of OZALP

On 12 June 2000, Salih Haktan was suspended from office by the Minister of the Interior on the grounds of events that took place after he had taken office as mayor. There were four different allegations against him which were all related to misconduct of responsibilities as a mayor, i.e abuse of power and embezzlement. He took the Ministerial decision which gave permission for his trial to the Council of State. The Council of State annulled the two out of four decisions of the Ministry which he had been suspended on the grounds of and which gave permission for prosecution. That is to say, The State Council’s decision was not completely in favour of Mr.Haktan and the permission for prosecution for two of the allegations against him were still valid.

Furthermore, apart from these ministerial actions, a criminal case against him was also launched by the Criminal Court of Van for embezzlement. This crime is dealt within a different law (No 3628) which aims to fight against various forms of corruption including embezzlement. According to that law, Ministerial permission is not needed for bring suit against the suspect. When an accusation is made or any supervisor or inspector comes across sound evidence of corruption, they have to notify the public prosecutor and then the issue is dealt with by the judiciary.

In Mr. Haktan’s case, the public prosecutor was informed by the Ministry’s inspectors on the grounds that there was evidence about embezzlement. Following that, the Criminal Court of Van launched a lawsuit against Mr Haktan and decided to continue without him being arrested. The Court informed the Ministry about the proceedings on 11 December 2000. The case is still pending.

In general, the Ministry reinstates a local elected representative in office:

if he/she is cleared by a court’s decision (if the decision is made by an administrative court, then necessary action in line with it has to be taken by the executive body within 30 days. For decisions of criminal courts, there are no such regulations regarding time limits).

if the Ministry, having evaluated all circumstances, concludes that there is no ground for suspension any longer.

As far as Mr Haktan is concerned, his case is still pending before the Criminal Court of Van, and the decision of the Council of State was not completely in favour of him. Therefore, it is not fair to state that there is a six months gap between a decision and returning him in office. In addition, he never lodged an appeal against the Ministerial decision for his suspension. However, after considering all circumstances including the Governor’s proposal in the same line which took into account of local circumstances, the Ministry returned him in office.

According to our records and also information gathered from the Governorship of Van, on 4 July 2001 Mr Haktan left his former political party, HADEP, which he stood for elections on 18 April 1999. However, he hasn’t joined any political party since then, and remains independent.

4. Ferman ÖZER, Mayor of Semdinli

Mr Özer was arrested and placed under court supervision on 12 October 2000 following accusations of harbouring members of terrorist organisations. Although Mr Ozer was not sent to prison, the Ministry of the Interior decided to suspend him from office on 22 December 2000, basing its decision on Article 127/4 of the Constitution and Article 93 of the Law on municipalities. The Ministry’s decision took into consideration of the accusations which are regarded as very serious and dealt with according to the Anti-Terrorism Act (No 3713). The case is still pending.

Mr Özer lodged an appeal before the Administrative Court of Van against the Ministry’s decision on 17 January 2001. The case is also still pending.

General comments

Article 127/4 of the Constitution and Article 93 of Law No. 1580 on municipalities provide that the Minister of the Interior may suspend a mayor from office for misconduct in the performance of his or her duties. Article 93 of Law No 1580 repeats the Constitutional provision on suspension covering all kind of local elected representatives in such a way that it covers exclusively elected representatives of municipalities.

The Ministry suspends a local elected representative if a serious judicial or administrative action is taken against him/her in relation to his/her duties, and there is a risk that he/she could remove evidences when he/she remains in office. The procedure might be initiated by either an administrative investigation or directly a lawsuit. In both cases, the investigation eventually has to be dealt with by the judiciary for suspension to take place.

Articles 91 and 92 of Law No 1580 were abolished by the Constitutional Court on 8 February 1989, while article 93 is still in force. As it can be seen from the original copy of the article 93, it repeats the Constitutional provision on suspension in its penultimate paragraph (this is actually the only provision in this law about suspension of mayors by the Ministry). In the last paragraph, it prescribes that mayors are permanently removed from office by the judiciary if they do not go to work for more than 20 days continuously with no reason.

Article 127 is the one which is about local authorities in the Constitution (not in the Law on Municipalities, No 1580). However, paragraphs about suspension both in article 127 of the Constitution and article 93 of Law No 1580 are in parallel.

Article 91 and 92 of Law No 1580 have not been in force since their abolition in 1989.

The conditions that candidates must fulfil in local elections are stated in article 9 of the Local Elections Law (No 2972). According to the article, any Turkish citizen having completed the age of 25 can stand in elections to be mayor or member of provincial and municipal councils provided that he/she must fulfil the conditions laid down in article 11 of General Elections Law (No 2839).

The Ministry or the Minister of the Interior has nothing to do with electoral arrangements (In fact, the Ministry of the Interior is one of the three ministries, together with the Ministries of Justice and of Transportation, that have to be left by members of the ruling party/parties to independent ministers a certain time before the election in order to ensure fair implementation of the legislation). By Constitution, both local and general elections are held under the direction and supervision of the judiciary, i.e. through district and provincial electoral councils and the High Electoral Council.