Nowadays, the Draft Law on Internal Security constitutes an important item on Turkey’s agenda. The main discussions about the package focus on the changes that this law would lead and on whether the package complies with the EU standards or not. While the opposition parties consider that “the Package is not in compliance with EU standards”, the government argues that it was prepared according to EU standards.

While the discussions were taking place within TGNA General Assembly, an important development occurred on 12 March 2015. The TGNA General Assembly decided to withdraw the part covering 63 articles, from Article 68 to Article 130 from the package that comprises in total 5 sections with 132 articles As a result, the enactment of the first three sections of the package which also contains the 10 most controversial articles present in the first session is foreseen. On the other hand, the fourth and fifth sections of the package that will strengthen Turkey’s position in its visa-free dialogue with the EU and in the Progress Reports will be reconsidered by the Commission. These parts in question foresee that the passport procedures will be run by General Directorate of Civil Registration and Nationality, all personal data collected during the passport application process will only be served by civil units that are specialized in this particular area and also personal data will be saved electronically.

THE INTERNAL SECURITY PACKAGE AND EU STANDARDS IN THE LIGHT OF PROGRESS REPORTS

It should be stated in the first place that it is not possible to talk about an integrated common European policy in the area of internal security. However, it goes without saying that the norms of the European human rights regime must be respected. Therefore, any integrative EU policy cannot be found in regard to the implementation that covers a wide range of subjects in the package. Although there is already a certain standard with regards to internal security at macro level, the matters concerning internal security enter the jurisdiction of the Member States since they are determined by their own national legislation. Although the implementation can vary from one country to another; all EU Member States must respect the norms and standards of the European human rights regime in this matter.

 “POSITIVE STEPS IN THE FIGHT AGAINST DRUGS”

The European Commission asks Turkey to develop a strategy to fight against drugs as noted in the Progress Reports on Visa Liberalisation Dialogue According to the fifth article in the draft law, disincentive measures are foreseen against the production, traffic and use of synthetic cannabinoids and its derivatives.

This will be reflected as a positive development in the related chapter in the progress reports prepared by the European Commission. It is important to remind that similar criteria will also be taken into account in the roadmap of visa-free regime in regard to the fight against drugs. The article concerning the “bonsai” had been approved quickly by the opposition and ruling party during the Parliamentary Session discussing on the Package.

 “NEW ERA IN BORDER SECURITY”

Some of the regulations within the framework of the Internal Security Package are designed with the perspective of alignment with the criteria related to border management, cooperation among the cross border authorities and visa policies which were defined in the block on the migration management of the Roadmap towards the Visa-Free Regime.

Another measure expected by EU to be taken by Turkey within its visa liberalisation dialogue process conducted with the EU concerns  increase in civil monitoring and capacity of the border controls through the integration of the border control units of the Turkish Armed Forces (establishments of Gendarmerie and Coast Guards) within the Ministry of Interior.  

Depending on the successful enactment of  the articles in the draft law, It is expected that the European commission will reflect this progress in the Second Progress Report on Visa Liberalisation Dialogue that will be published in October 2015 .,

WHAT DO PROGRESS REPORTS ON TURKEY CONTAIN REGARDING CONTROVERSIAL ARTICLES

Equality of Arms and Power of the Civilian Authorities:  Equality of arms principle or in other words, equal rights of the prosecution and defence parties as well as efficient and impartial regulations regarding prosecutors remain as a main priority for European Commission regarding right to a fair trial. Evaluations within the progress reports encourage further enhanced supervision of prosecutors over law enforcers. However, the foreseen measures in the package that would lead to increased power of civilian administrative authorities over judicial matters might result in a critical response from European Commission in the near future.

Power of the Police Officers during the Investigation and Prosecution Procedures: As indicated in the 2014 Progress Report, safeguards introduced in relation to pre-trial detention orders, search orders, seizing assets, the interceptions of communications and the appointment of undercover agents need to be followed up closely, as they risk creating insurmountable problems during the investigation phase. Consequently, after the implementation of the relevant measures foreseen within the package, efficient supervision of police searches with the verbal order of law enforcement commanders and phone recordings for up to 48 hours before submitting the decision to the approval of Ankara Criminal Court Judge is mandatory to prevent criticism of the EU bodies.

Interventions during Demonstrations: European Commission emphasizes in the 2014 Progress Report as Turkish legislation and its implementation concerning the right to  assembly and association and regarding intervention by law enforcement officers during demonstrations are still to be brought in line with European standards. As regards to freedom of assembly, the Constitution recognizes the right of citizens to assemble and demonstrate without having to obtain any prior authorization, but the legislation provides an ample margin of appreciation to the authorities and significantly restricts this freedom in practice.

INTERNAL SECURITY PACKAGE WITHIN THE ­FRAMEWORK OF ECHR AND COURT RULINGS

According to the standards ECHR set out, law enforcement officers are allowed to intervene in public meetings and demonstrations in only limited occasions. Lawful intervention during demonstrations by law enforcement officers in line with ECHR shall be exercised only if intervention is prescribed by law; necessary in a democratic society; in pursuit of a legitimate aim. Therefore in practice, intervention of law enforcement authorities could be allowed if only violent actions occur. It is not the role of law enforcement officers to disapprove of a political idea.

Fundamental criteria based on article 8 (right to privacy) of the ECHR exist regarding the regulations related to phone tapping and control of the communication. After the amendments concluded in the package that authorize the police to record and listen to private phone conversations without a court order up to 48 hours must align the following standards, the regulations must be in accordance with law; accessible to the citizen; must be sufficiently precise to enable the citizen reasonably to foresee the consequences which a given action may entail; provide effective safeguards against arbitrary interference.

Finally it is useful to share the following data: According to 2014 statistics published by ECHR; 45 of the 101 ECHR judgments against Turkey were related to right to freedom and security (Article 5), 24 of those judgments against Turkey were related to freedom of expression (Article 10). On the other hand, when the judgments against Turkey between 1959 and 2014 have been observed, it is seen that, with 63 violation judgments, Turkey is considered as a country that violated the right to assemble and associate most, among all contracting parties to ECHR. Lastly, all foreseen measures within the package that are planned to be implemented in the near future should be designed with the perspective of preventing the violations of rights mentioned above.