Following the elections of April 1999, and the establishment of a new coalition under Bülent Ecevit, prospects began to improve. Ecevit supported a strongly nationalist line on the Cyprus question, but was committed to the widening of human rights in Turkey for domestic reasons, quite irrespective of its effects on Turkey’s foreign relations. His coalition partners in the Nationalist Action Party led by Devlet Bahçeli, have been classified as ‘defensive nationalists’ in the sense that, nominally, they did not oppose the idea of EU accession, but
were ill-prepared to accept the political adjustments – especially on the Kur- dish question – that would make it possible. The Motherland Party, as the third coalition partner supported both EU accession and political and econ- omic liberalization.20 Among the EU states, also, the defeat of the German
Christian Democrats in the 1998 elections and their replacement by a Social Democrat (SPD)–Green coalition under Gerhard Schröder, substantially improved the chances of a successful dialogue between Turkey and the EU, since the new German government seemed anxious to turn over a new leaf in Germany’s relations with Turkey. When the European heads of government assembled in Helsinki on 9 December 1999, the uncertainties were overcome and the main EU governments, which by this stage clearly favoured Turkey’s candidature, carried the day. Turkey was thus placed as a candidate for acces- sion, along with the eastern European applicants, plus Cyprus and Malta, and on the basis of the same criteria as those applied to other candidate states. Important conditions were laid down to allow accession talks to begin. The EU would begin an‘enhanced dialogue’ with Turkey on human rights, and Turkey would need to produce ‘a pre-accession strategy to stimulate and support its reforms’ so as to meet the Copenhagen criteria.21Like other candidate countries,
Turkey was urged to settle all its border disputes with other countries (in this case, with Greece) failing which they should be brought to the International Court in The Hague.22
Among the Helsinki decisions, two crucial extra conditions affected the Cyprus dispute. In thefirst place, Turkey was required to support the efforts of the UN Secretary-General to reach a settlement, although no such obligation was placed on the Cypriot side.23 Second, the Council conceded that if no
inter-communal settlement had been reached by the time accession negotiations had been concluded, then ‘the Council’s decision on accession will be made without the above being a precondition. In this the Council will take account of all relevant factors’ (what these might be was left entirely vague).24 This
turned out to be a fatal mistake by the EU leaders since, by assuring the Greek Cypriots they could be admitted to the Union anyway, they provided them with no incentive to reach a settlement with the Turks. How a country could be admitted if about 20 per cent of its population were left outside the EU was unexplained. As a later EU Commissioner for external relations, Chris Patten, confided to a US diplomat in 2004, ‘Cyprus … probably should not have been admitted… but the Greeks insisted on Cypriot admission as the price of agreeing to some of the northern European candidates’ (presumably, the Baltic republics).25
The conditions regarding Cyprus and relations with Greece evidently caused some misgivings on the Turkish side, and the EU had to send its representative for foreign affairs, Javier Solana, on a last-minute trip to Ankara to explain the details and overcome objections. However, Bülent Ecevit and his colleagues would have found it hard to give the EU an outright refusal, and the Prime Minister confirmed that Turkey had accepted the invitation late on 10 December. The following morning, Ecevit flew to Helsinki to join the assembled EU
leaders and formally accept the offer. In Helsinki, he conceded that Turkey still had much ground to cover in improving its human rights regime, but said that these problems could be overcome, ‘given the dynamism of the Turkish people and their attachment to democracy’.26
In line with the Helsinki decisions, in November 2000 the EU Commission issued its ‘Accession Partnership Document’, laying down in more detail the political reforms – in particular, the widening of civil liberties – that Turkey would have to implement before accession negotiations could start. Since Turkey could meet most of the economic requirements of the Copenhagen criteria relatively easily, this political reform programme became the most problematic part of the Turkey–EU agenda over the following decade, making Turkey’s internal politics (notably, its constitutional and legal struc- tures) a crucial factor in its external relations. It thus became hard to draw a clear dividing line between internal and external policies.
The‘Accession Partnership Document’ was accepted by EU leaders at the meeting of the European Council in Nice in December 2000.27In the short term
(that is, before the end of 2001), the Commission stipulated that the govern- ment should ‘strengthen legal and constitutional guarantees for the right to freedom of expression’ as well as freedom of association and peaceful assembly. In the medium term (of an unstated duration) it would need to ‘guarantee the enjoyment by all individuals, without any discrimination … of all human rights and fundamental freedoms’. On the critical issue of minority rights, in the short term Turkey was required to‘remove any legal provisions forbidding the use by Turkish citizens of their mother tongue in TV/radio broadcasting’ (in effect, to allow broadcasting in Kurdish) and later to ‘ensure cultural diversity and guarantee cultural rights for all citizens irrespective of their origin. Any legal provisions preventing the enjoyment of those rights should be abolished, including in the field of education’. The ‘State of Emergency’ regime in the south-eastern provinces, which severely restricted human rights in the affected areas, should also be withdrawn. As a short-term measure, the government should ‘undertake all necessary measures to reinforce the fight against torture’, which was regularly resorted to by the police as a means of extracting confessions from suspects, and to maintain the existing de facto moratorium on capital punishment, which had been in effect since 1984.28 In
the longer term, Turkey was required to abolish the death penalty entirely, and sign and ratify Protocol 6 of the European Convention on Human Rights (this allows signatory states to retain the death penalty only ‘in respect of acts committed in time of war or of imminent threat of war’).29 Finally, the
government would need to enact constitutional and legal changes to reduce the independent political role of the military – in particular by bringing the powers and functions of the military-dominated National Security Council into line with the practice of EU member states. For the Ecevit government, these goals were not easy to achieve. Within the ruling coalition, Devlet Bahçeli’s Nationalist Action Party (MHP) strongly opposed anything seen as a con- cession to Kurdish nationalism, which its members tended to interpret
as surrender to terrorism by the PKK. This affected the party’s attitude to such questions as freedom of expression, as well as abolition of the death penalty or the granting of cultural rights to the Kurds. Hard-line conservative attitudes, which had to be overcome, were also common in parts of the state bureaucracy, the police and the military.
The government’s first reaction to the Accession Partnership Document came in March 2001, when it issued its‘National Programme for the Imple- mentation of the Aquis’. On paper, this appeared to meet most of the EU’s requirements, but was notably vague on such crucial questions as the full abolition of the death penalty and whether permission would be given for broadcasting or education in Kurdish.30 An important step towards imple-
menting these reforms was taken some seven months later, on 4 October 2001, when parliament passed a package of 34 amendments to the constitution.31
Under Article 76 of the constitution, constitutional amendments can only be passed by a two-thirds majority in parliament (that is, 367 votes) or a three-fifths majority (330 votes) plus approval in a national referendum. At the time, the government parties had around 340 seats, so they needed the support of the opposition parties to secure these changes without resorting to the cumbersome and possibly risky process of a referendum. Fortunately, this was secured, with relatively few backbench defections, since the opposition parties– including the pro-Islamist Felicity Party (Saadet Partisi, or SP) and the newly-formed Justice and Development Party (AKP)– did not wish to be presented as opponents of democratization. As part of this, the AKP took a clear step to abandon Muslim exceptionalism in favour of western-style liberalism, as the best way of protecting itself against the authoritarian secularist state establishment. In this way, a cross-bench alliance of pro-reform parties was put together.32
On the question of general restrictions of expression and association, the constitutional amendments of October 2001 were encouraging.33 In
particular, the new versions of Articles 13 and 14 of the constitution provided that basic rights and freedoms could only be limited for reasons stated in the constitution, and in accordance with‘the requirements of a democratic social order’, but could not be used to justify actions ‘with the aim of destroying the indivisible integrity of the state with its territory and nation, or abolishing the democratic and secular Republic depending on human rights’. This replaced the far wider (and at points dangerously vague) restrictions contained in the previous versions of these Articles, and brought the Turkish constitution into reasonably close correspondence with Article 10 of the European Convention on Human Rights.34 The previous provision that ‘No language prohibited
by law shall be used in the expression and dissemination of thought’ was removed from Article 26 of the constitution, with the similar restriction affecting the media being deleted from Article 28. However, this did not by itself allow Kurdish language broadcasting, which was separately forbidden under the broadcasting law.35Under an amendment to Article 38, the death
penalty was abolished except in cases of‘war, the imminent danger of war, or
terrorist crimes’. This brought the constitution into line with Protocol 6 of the European Convention, with the significant addition of ‘terrorist crimes’ – reflecting the refusal of the MHP to prevent parliament ordering the execution of the PKK leader Abdullah Öcalan, who was still in prison under sentence of death (p145). Finally, in an amendment to Article 118, civilians were given a majority of the seats in the National Security Council. Under the new wording, the Council was to submit its‘advisory decisions’ to the government, which would then ‘evaluate’ them. This was far more restrictive than the previous wording, under which the government had been obliged to ‘give priority consideration to the decisions’ of the Council, although whether the military would instantly adopt a purely advisory role and purely on questions of national defence, as in western European democracies, remained questionable.
These changes brought about a qualified approval from the EU, although doubts were expressed as to whether the government would give effect to them, by altering the existing legal statutes affecting human rights. At the European Council meeting held in Laeken, Belgium, on 14–15 December 2001, the European heads of government welcomed the amendments, adding that the beginning of accession negotiations with Turkey had‘drawn nearer’.36
More specifically, the annual ‘Regular Report on Turkey’s Progress Towards Accession’, which was issued by the EU Commission on 13 November 2001, described the constitutional amendments as a ‘significant step towards strengthening guarantees in the field of human rights and fundamental free- doms’. Nevertheless, Turkey still failed to meet the Copenhagen criteria, in the Commission’s judgement.37In response, at the end of January 2002 Ecevit’s
government began the task of altering the laws affecting freedom of expres- sion, by tabling amendments to Articles 312 and 159 of the Penal Code, as well as Article 8 of the‘Law for the Struggle against Terrorism’ of 1991. After fierce disagreements between the MHP and the other parties in the coalition, according to the new version of Article 312, supposedly ‘separatist’ or anti- secularist statements would only be punishable if they were also issued‘in a manner which could be dangerous for public order’. However, Article 159, which critics argued could be used to punish anyone making critical statements about the armed forces or the government, remained virtually unchanged, but for a reduction in the maximum sentences allowed. Similarly the punishments specified under Article 8 of the ‘Law for the Struggle against Terrorism’ were reduced (these affected ‘propaganda’ deemed to be directed ‘with the objective of destroying the indivisible integrity’ of Turkey).38Later,
on 26 March 2002, a second package of legal changes brought some liberal- ization of the laws affecting the press, the activities of associations and the closure of political parties, as well as the penalization of police officers found guilty of torture.39 Nonetheless at a meeting of the Turkish–EU Association
Council in April 2002, the EU side emphasized that Turkey still had to allow Kurdish broadcasting and other cultural rights, to abolish the death penalty in law and to withdraw the emergency regime in the south-eastern provinces,