The chief ombudsman in Turkey

My worries about the effectiveness of the Ombudsman’s Office in Turkey after its jurisdiction in the law was unnecessarily trimmed with an amendment to its enabling legislation that excluded the military from oversight last year were somewhat quelled when I talked to Chief Ombudsman Mehmet Nihat Ömeroğlu for three hours in his office recently. He struck me as a man of justice who knows the case law of the European Court of Human Rights (ECtHR) very well and pays utmost attention to what the court in Strasbourg says about Turkey. I believe the court’s rulings are a critical reference point for judicial overhaul in Turkey and a benchmark to determine whether it is progressing in the right direction. It is a promising accomplishment, for example, when in a short period of time, Turkey dropped to third place from second in terms of the number of cases originating from member states of the Council of Europe.

Ömeroğlu talked at length about the ECtHR ruling on the case of Confederation of Revolutionary Workers’ Unions (DISK) and Confederation of Public Sector Trade Unions (KESK) v. Turkey, launched by the union groups in Strasbourg after the government banned May Day rallies in 2008 and he drew an analogy to the recent Gezi Park protests in Turkey. He made it clear that the response of the security forces was excessive and disproportionate in the initial days of the small-scale demonstration that started with a dozen environmentalists and later morphed into a nationwide protest with violent clashes in many Turkish cities. He even revealed that he personally wanted to meet some of the protesters whom he found through social media to listen their concerns. But the abrupt intervention into the sit-in by municipal inspectors backed by the police disrupted his plans to meet with protesters. Showing me the infamous picture of the lady in red whom a police officer is spraying directly in the face with pepper spray, he said, “This can’t be justified,” within the rules and norms of the ECtHR.

Another encouraging sign is that the chief ombudsman is keen to foster ties with his European counterparts and welcomes the expertise and experience of peer agencies in other countries, inspiring more hope of being able to realign Turkey’s standards with those of Europe to deliver justice in government bureaucracy. He has already sent his teams to interact with ombudsman offices in European countries and his office has a twinning program running with Spain as part of an EU-funded project. There is a big conference coming up in Turkey to which he invited top ombudspersons from other countries to discuss Turkey’s state of affairs.

Ömeroğlu, a former senior judge at the Supreme Court of Appeals, knows the culture and mentality in the Turkish judiciary and the government bureaucracy intimately. He has the courage to face up to his past, during which he admitted that he might have made a mistake in overlooking individual freedoms and fundamental rights in the early days of his career, just as many of his colleagues did at the time. During our conversation, he made clear that he will also look into court cases where the delivery of justice is unreasonably delayed, although he acknowledged that the primary function for that oversight belongs to Turkey’s judicial council, the Supreme Board of Judges and Prosecutors (HSYK). “If a judge delays the announcement of his/her reasoned decision for too long after a preliminary ruling, this is misconduct of a public official and I have a right to review his/her behavior if a complaint is filed with my office,” he explained.

His expertise in the public sector, acquired as a senior judge also allowed him to cultivate an influential network in the government, which may be grounds for some to question his credentials. He may be close to the government, as he was nominated by the ruling Justice and Development Party (AK Party), some claimed. Whether that is the case or not, his track record as the chief ombudsman will better explain where he stands on fundamental freedoms and individual liberties. My sense is that he will push the limits of the government to get what he wants to rectify a violation filed by a citizen. His office is only responsible to the Parliament and his budget is independent of any interference from the government. His network within the government actually helped him to set up the office in just three months’ time so that the office could start accepting complaints quickly. In contrast, the Constitutional Court was given one-and-a-half years to start to receive individual complaints at its inception. Ömeroğlu spent personal capital and convinced senior officials in government agencies to reshuffle legal experts to his office so that he has enough manpower to review complaints.

Though the law limited his office’s power to investigate the military, which many saw as a blow to the democratic credentials of the AK Party government, the chief ombudsman argued that he has enough jurisdiction to go after complaints in the military, as long as those grievances are not directly related to a task of a strict military nature. He seems eager to use a narrow interpretation of that exclusion provided to the military in the letter of the law and it seems he hopes to expand the spirit of the law to its widest sense in order to go after any complaint that originates in the military but has an impact on civilians. Recalling that there was a special division set up in the Ministry of Defense to handle requests from the Ombudsman’s Office, Ömeroğlu actually thinks there will be fewer complaints about the military than government agencies.

The chief ombudsman also vowed to fight violations of privacy in Turkey which may come as a source of relief for many that are concerned about growing government intrusion into their private lives. The issue has come to the forefront recently with the revelations that the National Intelligence Organization (MİT), Turkey’s spy agency, had signed a series of secret protocols with government institutions to be able to harvest data – everything from travel itineraries to the medical records of private citizens — without the need to have any reasonable suspicion that a crime is actually involved. Just the other day, the Environment and Urban Planning Minister Erdoğan Bayraktar verified that MİT has online access to land registry records. Ömeroğlu said he will look into these allegations when there is a complaint filed by a citizen claiming that his/her privacy was violated by the act of a government agency, in this case either by MİT or its collaborating agency.

Ömeroğlu is very much aware of the serious vacuum left, unfortunately for too long, in terms of monitoring and supervising the conduct and activities of the intelligence agency. There is no commission in Parliament that actually oversees the spy agency. Its budget was not discussed at length and was approved pretty much as a rubber stamp function of Parliament. There is also no independent commission that looks into alleged misconduct or wrongdoing in the spy agency. By law, the agency and its head are responsible to the Prime Ministry. Since Prime Minister Recep Tayyip Erdoğan appointed his close confidante, Hakan Fidan, as the head of intelligence, the monitoring of the agency by the government is politically not possible. In fact when Fidan was asked to come in for questioning by prosecutors in Istanbul in connection with an ongoing case last year, the government rushed an amendment to the MİT law through Parliament to save him from legal woes. Now any judicial probe into any member of the intelligence agency must acquire the prime minister’s personal permission. So far, Erdoğan has only allowed a couple of intelligence agents to be investigated while refusing the bulk of requests from prosecutors.

Therefore, in a country where judicial, independent, governmental or parliamentary oversight of the intelligence activities is not possible, the Ombudsman’s Office appears to be probably the only venue for citizens to bring their grievances. Ömeroğlu is very much aware of this and may use his office as kind of watchdog agency in reviewing alleged violations committed by the intelligence agency. He underlined that the government cannot hide behind the notion of maintaining official state secrets if there is any violation of the fundamental human rights of citizens. “We may not share the classified government documents with the public, but government agencies — including MİT — need to cooperate with us,” he noted. The chief ombudsman is also keen to see the draft bill on the protection of personal data adopted in Parliament soon, in line with the requirement of the constitutional amendments approved in the 2010 public referendum.

The establishment of the office of the ombudsman is an important milestone in Turkish democracy. If its record matches the pledges and promises made by Ömeroğlu, we will have more reason to be optimistic for the future of this country.

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