by Abdullah Bozkurt
In a landmark decision, the European Court of Human Rights (ECtHR) has ruled that Turkey’s notorious National Intelligence Organization (MİT) violated the fundamental rights of Turkish citizens by invading their privacy in catchall wiretapping activities without any evidence of a crime or valid justification.
The ruling deals a huge blow to the armor of impunity provided to the intelligence agency by Turkish President Recep Tayyip Erdoğan, who uses the intel services to plot, threaten, blackmail and hunt down his critics and opponents in Turkey and abroad. In the case of Mustafa Sezgin Tanrıkulu v. Turkey, the European rights court decided on July 18, 2017 that the interception of the communications of everyone in Turkey by MİT constituted a violation of Article 8 of the European Convention on Human Rights (ECHR) to which Turkey is a party and obligated to comply with.
Article 8 of the ECHR states that “everyone has the right to respect for his private and family life, his home and his correspondence” and “there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The case originated when MİT obtained a warrant from a Diyarbakır court on May 6, 2005, to intercept all domestic and international telephone calls and communications that go through public and private telecommunication companies and Internet firms on the pretext of finding evidence, preventing a crime and catching terrorists. Yet, the warrant did not specify the names of any suspect or indicate the date, location or address of people whose communications would be intercepted. It did not provide any justification as to why the wiretapping of all people in Turkey was required. The judge did not bother himself with such details, prompting plaintiff Tanrikulu, the head of the bar association in Diyarbakır at the time and now a lawmaker from the main opposition party, to challenge the decision in national courts.
Criminal complaints against MİT officials were filed with the offices of chief public prosecutors in Diyarbakır and Ankara, but the prosecutors decided to drop the complaints and not pursue a prosecution against MİT officials. A local court in the town of Siverek dismissed the challenge by the plaintiff, who accused the prosecutors of dereliction of duty by not pursuing the matter. The Justice Ministry decided not to take any action against the prosecutors or the judges for failing to pursue the matter, either.
The Council of State, Turkey’s top administrative court, ruled in June 2008 that a blanket warrant to eavesdrop on everybody in Turkey is against the rule of law. It said “irrespective of the motives behind it, a nationwide authorization [for the preventive interception of communications] in which every person in Turkey was regarded as a suspect shall not be granted to any institution in Turkey, a democratic state based on the rule of law.” Nevertheless, the Erdoğan government continued to thwart protections in the constitution and disregarded case law, pushing a series of amendments to Law no. 2937 (Law on Intelligence Services of the State and MİT) through the Turkish Parliament in 2012 and 2014. In August 2017, the government issued decree-laws without even going to Parliament to further empower the intelligence agency. The changes provided MİT with sweeping powers and expanded the immunity of the organization against any criminal probes. The deposition of MİT members even as “witnesses” by prosecutors was banned unless an authorization was obtained in advance from the intelligence chief.
In the Strasbourg court, the Turkish government defended the blanket authorizations for the intelligence agency to eavesdrop on everybody in Turkey, claiming initially that there was no interference in the right to respect for the privacy that is protected by the ECHR. When that argument failed to sway the court, it claimed that the interference had been in accordance with the law and necessary in a democratic society for the protection of national security and the prevention of disorder or crime. Shamelessly, the government defended the court warrant that authorized the wiretapping of all in Turkey as suspects.
The European rights court did not buy that argument, either. First, it said, Turkish law itself required that an interception authorization had to specify the persons who are suspected of committing crimes listed in the law. Secondly, the authorization required some sort of evidence that indicated the commission of a crime so that the interception warrant can be justified. Thirdly, no explanation was provided as to why other and less intrusive methods were not used to identify suspects and reveal the crime. All these requirements were noted in Turkish law, but the government did not seek to satisfy any of these requirements in the first place.
What is more, the ECtHR found that there is no provision in Turkish law that actually regulated MİT when it came to the preventive interception of telephone communications. In other words, MİT was acting unlawfully when it sought a warrant to authorize eavesdropping. The Turkish government was found to be in breach of not only Article 8 but also Article 13, which states that “everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
What this ECtHR ruling means is that it shed light and set a precedent for how Turkey’s intelligence agency acts in violation of Turkish law and the convention articles. That is why the German government rebuffed Turkey when the intelligence chief, Hakan Fidan, handed over a list of Erdoğan’s critics to his German counterpart, Bruno Kahl, in March 2017 in the hope that people living in exile in Germany would be monitored by the German intelligence agency. There was no probable cause, no justification and no evidence suggesting these people were actually involved in a crime. Instead, the government warned the profiled Turks not to travel Turkey to avoid imprisonment on false charges.
If Turkey is governed by the rule of law, the ECtHR ruling should have serious legal and legislative repercussions as the convention must be upheld and respected, just like the articles of the Turkish Constitution. But the Erdoğan government does not care about the rule of law, and the ECtHR ruling would serve nothing except the naming and shaming of Turkey, which is important in and of itself, but not enough to force Erdoğan to change tack. The Turkish president will continue using MİT to wiretap and eavesdrop on his critics and opponents and even order Turkish courts to use these illegal wiretaps as if they were duly authorized and collected evidence in politically motivated cases.
By the way, this is not the only tactic used by MİT to wiretap unsuspecting citizens in Turkey. It was revealed that MİT actually secured a warrant to intercept communications of critical journalists Ahmet Altan, Mehmet Altan and others under fake foreign names and made-up charges. The İstanbul 11th and 14th High Criminal Courts authorized the intelligence agency to wiretap the phones of journalists between 2008 and 2009, when the motion did not specify their names instead provided fake aliases to cover their identities. When the scandal was revealed in 2012, the victimized journalists filed criminal complaints that led to charges against MİT. But the Erdoğan government saved the day and protected the intelligence agency by not allowing the prosecution to move forward.
The Altan brothers are currently in jail in Turkey over critical articles they had written about the Erdoğan government and face long years of jail time if they are convicted on trumped-up charges brought by the Turkish government. Their unlawful detentions are also pending before the ECtHR. The Strasbourg court cannot force the Erdoğan government to enforce its judgments, but it can at least expose this 21st century European dictator for what he is with judgments like this. Instead of tossing the ball back to the national courts, which are now fully controlled by this man, the ECtHR will take up cases from Turkey without even waiting for the exhaustion of domestic remedies. Turkey represents a special case where extraordinary circumstances have led to the jailing of over 50,000 people in the last year alone and the dismissal of more than 150,000 on unproven terror charges.