The "Law Amending the Law on State Intelligence Services and the National Intelligence Organization" numbered 6532 is a highly controversial piece of legislation that enhances the surveillance powers of Turkey's National Intelligence Organization ("MIT"). The law was enacted by the Turkish parliament on 17 April 2014 and entered into force on 26 April, 2014, following President Abdullah Gül's ratification and its announcement in the official Gazette. The main opposition party (CHP) objected to the law announcing that it will challenge this law by seeking its annulment in the Constitutional Court. The new law raises serious concerns about state accountability, media freedom and the right to privacy by increasing MIT's data collection powers, granting MIT personnel immunity from prosecution coupled with the absence of effective executive and judicial scrutiny. The new legislation thus brings into question Turkey's compliance with obligations under international human rights law. Our analysis in this article will be limited to assessment of the new MIT law from a privacy perspective.
The effects of the new law on the right to privacy mainly stem from expansion of MIT's area of responsibility but especially MIT's wide data collection power. The new law empowers MIT to collect private data, documents and information about individuals without a court order. The data may be collected from sources including, public authorities, professional organizations (such as bar associations, professional chambers, etc.) banks, archives, private companies and other legal persons. The MIT law overrides all other pieces of legislation protecting data privacy, thus removing the option to decline to provide data to the MIT, based on other laws guarding data privacy. The new law also grants MIT access to depositions in investigation
and prosecution proceedings and all kinds of documents and information in relation to certain crimes, such as crimes against the security of the State, the constitutional order and its functioning, national security, state secrets and espionage. The new law also has another provision under which all legal persons -whether public or private- are under the obligation to allocate all of their equipment and devices to the use of the MIT if such allocation seems necessary for the agency to carry out its duties and powers. Private data stored in devices, equipment and information technologies hardware will therefore be directly accessible by the MIT.
Another provision of the new MIT law states that preventing MIT from carrying out its duties and exercising its authority constitutes a criminal offence and is punishable by two to five years in prison. Therefore, those who refuse to provide the documents and information requested by MIT officials risk prison sentences. Accordingly, the law sets forth in another provision that those carrying out any kind of request which the MIT is empowered under this law, will not be held legally or criminally responsible and that the MIT law supersedes all other laws. This legislation which places the MIT law over other legislative acts of the same rank challenges the hierarchy of the system norms, a basic tenet of Turkish legal system. To say the least, this is questionable under the rule of law principle.
The lack of judiciary control over the powers and authorities of MIT is another questionable aspect of the new law that endangers the remedies for possible violations of the right to privacy. Formerly, another contentious amendment was made to the law in 2012, where criminal investigations against MIT members or other civil servants appointed by the Prime Minister to execute a specific duty can only be initiated upon the approval of the prime minister. The new law takes a further step by stating that public prosecutors who receive complaints about MIT's personnel shall first inform the Undersecretary of MIT, the head of the agency. If the Undersecretariat finds the complaints to be related to MIT's duties and activities, the investigations concerned will be suspended and can only be resumed by Prime Minister's approval.
A positive yet insufficient provision was added to the MIT law before it was enacted by the Parliament. According to the additional article, a Security and Intelligence Commission will be established within the Parliament to monitor the activities of the MIT. Monitoring of private data collected during intelligence activities and protection of individual rights and freedoms are within the duties of this Commission. Annual reports issued by the General Directorate of Security (tr. Emniyet Genel Müdürlüğü), the General Commandership of Gendarmerie (tr. Jandarma Genel Komutanlığı), the Financial Crimes Investigation Board (tr. Mali Suçları Araştırma Kurulu Başkanlığı), the Ministry of Internal Affairs, the Ministry of Finance and the MIT will first be sent to the Prime Ministry. Then the Prime Ministry will issue its report based on these several reports and submit it to the Commission. However, this second report cannot contain any information or data that is classified as a state secret. The Commission will finally examine the report within three months and will prepare its own report to submit to the Parliament. Concerns about the effective functioning of this Commission can be categorized under three main points. Remedial measures that the Commission may adopt for the protection of individual rights and freedoms are vague given that its report will not be binding on any person but is simply for information. Secondly, the reports issued by several intelligence and security services may be filtered by the Prime Ministry before their submission to the Commission. Finally, the concept of "state secrets" is open to interpretation and the risk is that everything within MIT's sphere of activity may be interpreted as a state secret.
The new law seems also in flagrant violation of Turkey's obligations under international human rights law, and is especially non-compatible with the protections under the European Convention on Human Rights. According to the well-established precedent of the European Court of Human Rights, as stated in Rotaru v. Romania, intelligence services may legitimately exist in democratic societies on the condition that surveillance of citizens are conducted
in a way compatible with the right to privacy and prove to be necessary for safeguarding the democratic institutions. Even though such interference must be "in accordance with the law", the Court reads law not simply as domestic law but assesses the quality of the "law", requiring it to be compatible with the rule of law principle. Thus, there must be a measure of legal protection in domestic law against arbitrary interferences by public authorities with the right to privacy and especially, where the executive power is exercised in secret. Moreover, since the practice of secret surveillance is not open to scrutiny by individuals or the public at large, granting the executive with unfettered power would violate the rule of law. Consequently, the law must set the scope of such discretion and the manner of its exercise with sufficient clarity to give individuals adequate protection against arbitrary interference. In this respect, the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Mr. Frank La Rue's statement seems to the point, according to which "surveillance of communications must only occur under the most exceptional circumstances and exclusively under the supervision of an independent judicial authority" and "legal safeguards must ensure that surveillance is necessary and proportionate", limit the "nature, scope and duration" of surveillance and provide remedy for unjustified intrusions into privacy.
In conclusion, it is not possible to say that the expansive powers given to MIT are coupled with effective measures to monitor exercise of such authority. The law attracts such criticism because of the following features: (i) use of the ambiguous concept of national security in exercising wide discretion; (ii) inherent lack of transparency in MIT's exercise of its powers that make it nearly impossible for judicial monitoring; and (iii) the fact that the secondary legislation showing the implementation details of the law will be classified as a state secret and will not be available to the public by getting published in the Official Gazette. All in all, the new MIT legislation contributes even more to Turkey's notorious legislative failure to set clear limitations to the retention of and access to personal data. It is likely that the new law will constitute a violation of Turkey's obligations under international human rights law. It is now up to the Constitutional Court to prevent serious breaches of the right to privacy by annulling the violating provisions.
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