My testimony at the parliament phone-tapping commission

I was in Ankara yesterday as a witness at the Parliament’s research sub-commission on illegal phone tapping.

In the meeting headed by Justice and Development Party (AK Party) Elazığ deputy Şuay Alpay, I presented a detail assessment about those holes that exist in the legal framework as well as problems I see with the practice. In this framework, I especially indicated my views on possible improvements. My main points were as follows:

- At the end of the 1990s, there was a full-fledged legal hole in Turkey on the subject of prevention of crimes about the violation of freedom of communication and the right to privacy. In the meantime, in 15 years, despite the fact that several steps have been taken regarding legislation, it is difficult to say that problems have totally been solved.

- One of the most important holes in legislation is that the whole text of the transcript obtained after legal tapping, done with a court order, is included in the indictment, without eliminating the parts of the conversations that are not relevant to the crime, that are directly associated to the suspect’s private life, thus exposing them to public scrutiny. This practice is a serious violation of rights and is against the court practices of the European Court of Human Rights (ECHR).

- In the Law Number 4422 on Fighting Organized Crime that came into effect in 1999, there was an open clause in the practice guide that in the tapping transcripts, those sections that were not relevant to the investigation were to be destroyed. Unfortunately, in the system brought about by Law Number 5237, the Code of Criminal Procedure (CMK) in 2004, which replaced 4422, this clause regarding filtering was removed. The hole that emerged here constitutes a situation that is against the interests of citizens. This hole needs to be closed by legal amendments urgently. The ECHR has declared some complaints coming from Turkey on this matter as worthy of investigation. We should be prepared for violation rulings coming from Strasbourg in the next term.

- Another problematic area in phone tapping is that there are two parallel systems, both legal, in Turkey. This constitutes a “gray area” that is used against the citizen. Those recordings that are obtained through intelligence tapping should not be used as evidence. With a clause included in the Third Justice Package that was approved by the Parliament last year, legal grounds for intelligence tapping were removed. In any case, this duality should be terminated in the phone tapping regime. It is essential that intelligence tapping be brought under control.

- Another essential problem is that some judges immediately approve of tapping demands coming from security and prosecutors without showing the required attention. In certain cases, extremely broad powers are given. There are also cases when the state units, especially the National Intelligence Organization (MİT), mislead the judges while they process a demand. These permissions should be regulated to prevent violations of rights.

- The CMK states that when no crime is intercepted at the end of phone tapping, then the records should be destroyed, also the citizen has to be informed on the subject. However, in practice, it is difficult to say that prosecutors are respecting the requirements of the law.

- Violations in the field of freedom of communication victimize all segments. Each political party has been subject to these violations. For example, even private conversations of Prime Minister Recep Tayyip Erdoğan found their way to indictments. Consequently, there has to be a principled mentality, above parties. If consensus is sought while suggestions are made at the end of the work of the commission, no doubt, this will strengthen social support in further works in this field.

- We have to overcome the reflexes of the former period on the subject of respecting freedom of communication and the right to privacy. Responsibility falls on to security forces, the judiciary and indeed the press. The press also needs to act more carefully than in the past, with regards to respecting citizens’ rights.

Sedat Ergin is a columnist for daily Hürriyet in which this piece was published on April 12. It was translated into English by the Daily News staff.