Specially authorized wiretapping regime continues

There are two types of eavesdropping regimes in effect in Turkey today, based on different legislation. The first one is the category called “judicial wiretapping.” This monitors activity conducted to discover a criminal act and to document it within the framework of an ongoing investigation. This eavesdropping is authorized in the Turkish Code of Criminal Procedure (CMK) of 2004, Articles 135, 136, 137 and 138. For instance, the recordings in the graft investigations that have locked Turkey’s agenda are in this category of judicial wiretapping.

There is also intelligence wiretapping. This is also called “deterrent wiretapping.” In intelligence wiretapping, the aim is to prevent a possible crime or directly collecting intelligence.

For intelligence wiretapping, there was a huge void in legislation in the past. However, in 2005 a new separate law was approved for it. Law No. 5397 regulated the eavesdropping activities of the police, gendarmerie and the National Intelligence Organization (MİT), to a certain extent.

However, these regulations have inevitably created a dualism. Moreover, since intelligence wiretapping does not stand out as much as judicial wiretapping it falls into a gray area further away from control.
The most recent bill actually widens the gap in this dualism further. Let me explain with examples.

The first major difference is about who makes the decision. In judicial eavesdropping, it is the prosecutor who decides the monitoring at the initial stage. But it is also obligatory that within 24 hours a judge has to rule for this, otherwise the monitoring is stopped. In intelligence wiretapping, on the other hand, the activity can start with a bureaucratic practice. With a “written order” from a police general manager, a head of the intelligence unit, a commander of the gendarmerie force, or a head of intelligence, the undersecretary or his deputy in the MİT can start the process. However, a judge has to make a decision within 24 hours.

The second difference is in wiretapping periods. For the current judicial wiretappings the initial permission is for three months. Then it can be extended for three more months, after which monthly extensions are needed for an unlimited time. In the government’s new bill, the initial permit is down to two months, then this can be extended for a month, and then it can be extended for a maximum three months with monthly renewals (making a total of six months). In the current intelligence eavesdropping, initially, a three-month permit is given. This permit can be extended three times for three-month periods, and next this can be extended “numerous” times.

While discipline is introduced to judicial wiretapping by ending the limitless monitoring regime, the old order will still continue exactly as it is because the package does not include intelligence wiretapping.

There is a serious dualism in all respects. As a matter of fact, in former times, serious violations of rights occurred in intelligence wiretappings. Is there a strong assurance that they are not occurring today? The scandal of the MİT is being prosecuted when, very recently, it showed fake names to the judge to obtain eavesdropping permits for certain famous journalists.

Intelligence wiretapping being subject to a “more flexible” regime will make the citizens more vulnerable to such violations of rights. If it is sincere in its justifications of the bill, the government is obliged to regulate the intelligence wiretappings too.

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