Judicial scrutiny of Turkey’s spy agency

The Venice Commission of the Council of Europe published an excellent analytical piece titled “Report on the Democratic Oversight of the Security Services” in June 2007. The overriding theme of the commission’s report is that control of the intelligence community by the courts is essential for the functioning of a democracy based on the rule of law. It warns, however, that “the ordinary courts, to the extent their formal competence to review decisions in this field is not blocked by procedural devices (immunity, secrecy of documentation etc), are often faced with great difficulties reviewing in practice the large discretion which is given to the government in this area.”

In other words, the Venice Commission advocates the idea of having specialized prosecutors and judges oversee cases involving intelligence services because of the expertise required to deal with them. It is safe to presume that the commission, when asked, will reject calls to abolish special courts in Turkey because of their valuable experience in dealing with high profile terrorism, coups and organized crime cases. There is a body of case law at the European Court of Human Rights (ECtHR) to back up that assumption. The report stresses that “in order for judicial control to be effective, the judges must be independent and possess the necessary expertise.” It further states “The administrative/legal structures of internal security services must allow for an adequate judicial control of their activities.”

When compared against this benchmark, it could be claimed that last week the governing Justice and Development Party (AK Party) failed to meet expectations in promoting democracy and transparency in Turkey when it effectively thwarted public prosecutors’ attempts to obtain testimony from the country’s top spy agency officials in an ongoing investigation. Not only that, but the AK Party government also submitted an emergency draft law to Parliament on Friday night to amend relevant articles of Law No. 2937 — which regulate the activities of the National Intelligence Organization (MİT) — seeking blanket protection from legal prosecution for the secret service. When they become law in the middle of this week, the new rules will make it extremely difficult to hold the intelligence community accountable for their actions.

The controversy erupted when specially authorized prosecutors in İstanbul summoned current and former heads of the spy agency, among others, to testify in an ongoing case. The government balked at the request, with Prime Minister Recep Tayyip Erdoğan citing executive privilege. Many jurists believe the government erred in its judgment, however, saying that under Article 250 of the Code on Criminal Procedure (CMK), anyone accused of terrorism-related crimes loses any legal protection their position usually affords them in the course of investigations into crimes not related to terrorism. Since spy head Hakan Fidan, along with four other MİT officers, faces charges of collaborating with the Kurdish Communities Union (KCK), a terrorist network that prosecutors say controls the terrorist Kurdistan Workers’ Party (PKK), he cannot enjoy immunity. There are many precedents in Turkish jurisprudence supporting this legal point of view.

Article 26 of Law No. 2937 describes the conditions for trying intelligence officers, underlining that special protections are only applied when officers have been performing their supposed roles — protecting the state from internal and external threats by gathering intelligence. As close confidant of Erdoğan — who appointed him as the head of the MİT only a year ago — Fidan may be completely innocent and unaware of what is going on in the spy agency under his watch. But the buck stops with him in the eyes of the law. He must step up to the plate, clear the air and prove that he dealt with rogue agents effectively and immediately. He must let the independent judicial probe take its due course. Hiding behind government secrecy and legal immunity will further fuel suspicions about the long-running claims of the spy agency’s involvement in dirty dealings with terror organizations.

We do not know how compelling the evidence is against MİT. But, judging from the leaks to the press, we understand that prosecutors allege some MİT agents who infiltrated the KCK had actually committed crimes or become accessory to the murders of soldiers and police officers when they did not report attacks and plots they knew were occurring. Some undercover agents apparently crossed the line by directing terror plots, leaking sensitive information to terror groups and, as such, jeopardizing counterterrorism efforts while putting the lives of Turkish men and women at risk. Instead of lending political support to the judicial probe, the government now gives the impression that it is trying to cover up alleged unlawful actions by public officials.

It looks like the high criminal court in İstanbul agreed with the prosecutors’ request to summon MİT officials for questioning based on the broad investigative powers given by the laws relating to terror and organized crime. When the officers summoned failed to appear, the court had no choice but to grant a request by the prosecutor to issue a bench warrant for the arrest of all of them except Fidan, whose petition for “no jurisdiction” is still pending. The draft on the parliamentary agenda is a kind of insurance policy for the government to strengthen its case in a court of law, if its choice to bar MİT officers from testimony is challenged by the Council of State, which has the authority to review executive decisions.

Unfortunately, it did not look good for the government to reassign senior police officers who were closely involved with terror and organized crime cases in İstanbul in a rather abrupt and hasty decision made only hours after prosecutors summoned the MİT officers. The removal of prosecutor Sadrettin Sarıkaya, one of the two prosecutors who had summoned Fidan, from the case also fueled suspicions of government interference with the judiciary in order to avoid embarrassment and legal woes. This violates the very essence of the principle that in a democratic state based on the rule of law, the judicial system should be able to pursue the perpetrators of criminal acts even if those perpetrators happen to be agents of the executive.

Turkey also risks being labeled as non-compliant with the Council of Europe’s legal and political guidelines. The Council of Europe issued a strong resolution on the issue three months ago, based on a report by Swiss deputy Dick Marty of the Committee on Legal Affairs and Human Rights. Adopted on Oct. 6, 2011, the resolution noted that secret services and intelligence agencies must be held accountable for human rights violations and should not be shielded from scrutiny by unjustifiably resorting to a doctrine of immunity justified by the protection of state secrets. It warned that these agencies must not become a “state within the state,” exempted from being held accountable for their actions. “Such a lack of accountability leads to a dangerous culture of impunity, which undermines the very foundations of democratic institutions,” Marty warned in the report.

The resolution advocates the position that secret services should not be shielded from judicial or parliamentary scrutiny under the guise of protecting “state secrets.” “In democratic systems, parliaments, as representatives of the people, have a right and duty to know what the government is doing, and the justice system has a duty to prosecute and punish the perpetrators of criminal acts, including, where appropriate, agents of the executive,” Marty said. “The principles of separation of power and ‘checks and balances’ shouldn’t just be quoted in nice speeches; they must above all be implemented,” he added.

But if the AK Party government is strong enough to legislate strong protection in Parliament for its spies — who may have committed serious crimes — thereby halting judicial review in its tracks, it can certainly stop Parliament from setting up special commissions to review the actions of the intelligence services by invoking its clear parliamentary majority. This is a shame for a country that wants to raise its standards to those of the European Union, while touting itself as an inspiration and model for countries participating in the Arab Spring. I just hope the AK Party government realizes how high the stakes are.

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