Dr. Mehmet Özcan & Dr. Ercüment Tezcan printable version send your friend

As it is well known that the relations between EU and Turkey rooted from the first application of Turkey in 1959 and acquired a legal basis with Ankara Treaty signed in 1963. But during the years, Turkey's accession request wasn't accepted until 1999. But with the decision taken at Helsinki Summit, 1999 Turkey was accepted as a candidate country. After this course of time, the relations between EU and Turkey have gradually increased and EU has begun to take legally binding decisions having a characteristic of road map for Turkey.

As it is well known that the relations between EU and Turkey rooted from the first application of Turkey in 1959 and acquired a legal basis with Ankara Treaty signed in 1963. But during the years, Turkey's accession request wasn't accepted until 1999. But with the decision taken at Helsinki Summit, 1999 Turkey was accepted as a candidate country. After this course of time, the relations between EU and Turkey have gradually increased and EU has begun to take legally binding decisions having a characteristic of road map for Turkey.

In 2001, accession partnership document (AP) was signed by two sides. In order to fulfil the requirements in AP, Turkey published the first national program in the same year and both of these documents were revised in 2003.

Since 1998 European Commission has prepared annual progress reports for all candidate countries and on 6 October of 2004, issued both progress, recommendation and impact reports. European Commission declared with these reports that Turkey fulfilled political criteria of Copenhagen which is the requirement of the full membership. The decision taken by Council of Europe at the summit to be held on 17 October of 2004 will determine the date of membership negotiations with Turkey.

Since 1998 European Commission has prepared annual progress reports for all candidate countries and on 6 October of 2004, issued both progress, recommendation and impact reports. European Commission declared with these reports that Turkey fulfilled political criteria of Copenhagen which is the requirement of the full membership. The decision taken by Council of Europe at the summit to be held on 17 October of 2004 will determine the date of membership negotiations with Turkey.

In the light of these given data, legality of the said Report will be taken in hand and Recommendation Report that arranges the judicial police will be mentioned.

 First of all, it should be underlined that EU' decisions and recommendations for member and candidate countries are not the ones that are fully adaptable for each country. All issues in Accession Paper and National Program are open to negotiations. What is more important is that aspects of these decisions should be transferred and adapted to the national internal law in convenient way.

1.      The EU outlines the arrangements it wishes to have been made by a candidate country. It definitely does not interfere how these arrangements are adapted to the domestic law and in which institutional structure they are to be included. This is a totally antripodal practice to the subsidiarity principle which is one of the basic principles of the EU. For example, regarding the state aid which are included under the important subjects within the EU-Turkey relations, EU wants that these aids are performed transparently, obviously and accountable. It does not indicate under which institution this should be done in Turkey. Turkey may perform this transparency under the Ministry of Finance, State Planning Organization, Treasury Undersecretaries or another institution, whatever it prefers. In the same way if a Judicial Police Organization is to be established the EU definitely does not interfere under which ministry or under which institution it is to be organized. Besides the fact that in our country a judicial police is present and that the Police Academy Security Sciences Faculty students graduate from the Judicial Police department should not be forgotten.

2.      There is no arrangement in the EU documents (2001 Accession Partnership Certificate and National Program and the Accession Partnership Certificate and National Program Reviewed in 2003), which have a legal binding regarding the Judicial Police.  The EU request of a subject not included in these certificate legally DO NOT BIND Turkey.

3.      Arrangements regarding Judicial Police are included at two places. First, under the Regular Report 2004 on page 16 under the title "Developments since Helsinki" the following is said "A draft new Code of Criminal Procedure and draft Laws on the Establishment of the Judicial Police and on the Execution of Punishments remain to be adopted."

4.      Regular Report is arranged according to the Accession Partnership Certificate and National Program. An arrangement not included in these documents does not bind the candidate country. Because the aim of the Regular Reports are to explain the arrangements, deficiencies, the things to be done by the said country during the EU process in parallel to Accession Paper and National Program after the previous report. Regular Reports cannot exceed these two basic documents. And these statements have been arranged in the 2004 Regular Report under the title Developments since Helsinki. If the performance of the arrangement is mandatory it should have been under the title of Interior Affairs and Justice. In this document another statement relating to the judicial police is mentioned on page 27. Here it is said that the prosecutors, in practice, often exercise little or no supervision over police and gendarmerie. But there is no statement regarding the establishment of the judicial police. Besides in order to remove this deficiency there is no need to establish a judicial police organization. The prosecutors may exercise their powers granted by the laws effectively not with the establishment of a judicial police organization but through exercising the existing powers (Provisions of CMUK 154 and other related legislation render this possible.)

5.      The second statement included with the same sentence in the EU documents regarding the establishment of a Judicial Police Organization is repeated in the Recommendation Report issued together with the 2004 Regular Report and whose addressee are the EU Parliament and Council. In this document a statement regarding the judicial police is as follows: "A draft new Code of Criminal Procedure and draft Laws on the Establishment of the Judicial Police and on the Execution of Punishments remain to be adopted."

6.      First of all one should look at the legal quality of this report. Is this document legally binding Turkey? Definitely no. Because the addressee of this document are the EU institutions, not Turkey. From this point of view, acting from this document which is legally not binding to make a change which could have very important results in Turkey is not a subject which, according to our opinion, cannot be evaluated within the EU reforms.  If Turkey feels the need to make a reform in this area, the decision should be taken wholly based on domestic law and necessities, after discussion on a large scale with related institutions and politicians.

It will be useful to handle the said Recommendation within the EU legislation. As expressed obviously in article 249 of the European Communities Treaty recommendations are not binding. This status is confirmed in the EU Constitution signed in Rome on 29 October. In article I-33 of the Constitution the legal tools used in the EU legislation are handled. In the last sentence of the 1. paragraph of this article the following is said: Recommendations and opinions shall have no binding force.

CONCLUSION:

If sum up these assessments, we should mentioned that how an issue is undertaken in Regular Report while this is not stated in Accession Partnership Paper and National Program. Because, this is contrary to EU logic of making arrangement. Moreover, a document of not boundary from the point of EU law aspect is in conflict with EU fundamental norms. If there is a necessity in modification, principally an arrangement to be done have to be incorporated into Accession Paper and National Program.

Ass.Prof. Dr. Mehmet Özcan
Lecturer at Police Academy.

Head of International Strategic Research Organisation EU Research Centre

Ass.Prof. Dr. Ercüment Tezcan
Galatasaray University
Head of ISRO International Affairs Law Research Centre & EU  Scholarship Adviser