Problem concerning right to respect private life

One of the remarkable news stories of last week was that former football player and Justice and Development Party (AK Parti) Istanbul deputy Hakan Şükür sued the former deputy head of the Turkish Football Federation, Göksel Gümüşdağ, who happened to resign Jan. 31.

The reason for the court case is that while Gümüşdağ was speaking on the phone to former federation head Hakkı Özgener, he used swear words about Hakan Şükür. 

We have learned what Gümüşdağ said about Şükür because the transcripts of his phone conversations that were recorded legally within the context of the investigation into match fixing were appended to the indictment. 

Well, is there an element in the conversation between Gümüşdağ and Özgener about Şükür that supports the accusations or constitutes evidence in support of the prosecutor’s claims? 
Not really. Even though they are not featured as legal evidence, because the transcripts have been appended to the indictment in their raw form, without any filtration – regardless of how much unpleasant they are – a topic that should have stayed within the bounds of a private communication between two people have been made known to all of Turkey. 

When the government condones degradation 

This incident is not a first and it will not be the last. According to the judicial reform draft prepared by Justice Minister Sadullah Ergin, this practice, from now on, will continue to be based on an even stronger platform from the legal point of view. 

The essence of the problem lies in the fact that a clause that said, “wire-tapping transcripts that are not relevant to the investigation will be destroyed,” was removed from the legislation while legal amendments were being made on telephone tapping by the AK Parti government in 2004.

It is the result of this that the entire conversations of those suspects whose phones were intercepted are publicized with all its bareness, as private conversations that belong to citizens who have happened to converse with the suspects but having nothing to do with the case are scattered around and people are blatantly being degraded. 

Doctrine of unlimited freedom to prosecutors 

The government has preferred to observe this practice as a spectator up until today, an option they have consciously chosen. In the most recent judicial reform, they went beyond being a spectator and institutionalized the practice. In the draft, while punishments for publicizing “illegal” tapping records are increased, full legal freedom is introduced for publicizing “legal” tapping records at the stage of court proceedings.

In the justification, it is first stated that “there is no crime committed when the phone tapping is done legally,” and continued as such: “Parts of this content are included in the investigation file and submitted to the consideration of the subjects of the investigation and subsequently, after the indictment is accepted, are open to the public. In such cases, the crime defined in the second paragraph of Article 132 of the Turkish Penal Code [which focuses on the illegal publicizing of content] has not formed.” As seen, with this doctrine formulated in the justification of the draft, the freedom for prosecutors to act as they wish on the subject of telephone tapping is acknowledged.
 
Council of Europe also uncomfortable 

Such unlimited freedom to this extent complies with neither the Constitution nor universal law. 
If the Constitution and laws protect the right to privacy and guarantee communication, then legal phone tapping should be arranged in such a way that they do not shadow this guarantee. The legislator has to find the balance between the “tapping need” of the state and constitutional assurances that protect citizens’ rights in this field. 

Recently, courts were issuing verdicts punishing the publicizing of private life in legal phone-tapping records. The condemning order given to the prosecutors who appended the private conversations of Ergenekon case suspect writer İlhan Selçuk – in which he said he was frequently watching the Fashion-TV channel at home – to the indictment, thus publicizing the conversations, is only one of them. The verdict is at the appeals stage at the Supreme Court of Appeals. 

Moreover, this matter is making the Council of Europe uncomfortable. 

In the recently issued report prepared by Council of Europe Commissioner for Human Rights Thomas Hammarberg, in which serious criticisms against the Turkish legal system were made, one of the topics he was criticizing was the non-filtering of wire-tapped telephone conversation records. 

Hammarberg, in his report, said, “A further problem in this respect is that wiretap records presented to the courts do not systematically exclude private communications, including with persons who can legally refuse testimony against the accused, leading to concerns under Article 8 of European Convention on Human Rights [the right to respect the private life/freedom of correspondence].” 
In this respect, the AK Parti government has to make a choice between European values and its commitments to the European Court of Human Rights, and the normlessness of the Third World.