Turkish legislation still not clear on ‘state secrets’

The search is being conducted as part of an investigation into allegations of an assassination plot against Deputy Prime Minister Bülent Arınç. It has encountered difficulties as command members are resisting giving the specially authorized civilian prosecutors access to a large number of documents on the grounds that they are “state secrets.”

Turkey is, however, not clear on which documents and information constitute state secrets, as the government has failed to pass a number of bills on the issue in recent years. The bills, drafted in 2007, were aimed at clarifying what constitutes classified information and documents. Among these laws are bills on state secrets, banking secrets and customers’ private information.

If approved, the drafts would become law and Parliament, courts and prosecutors would have the authority to request any information or documentation deemed necessary. Those who disclose confidential information or documents illegally would face terms of imprisonment ranging from one to three years. However, the drafts were never passed due to opposition.

The bills on trade secrets, bank secrets and customer secrets would introduce changes to the circumstances in which public servants are authorized to disclose sensitive information or documents. They also sought to end the current practices under which institutions sometimes fail to provide critical information due to restrictions on confidentiality.

In addition to redefining the Turkish concept of state secret, the bills would institute a time limit on the confidentiality of such secrets -- a maximum of 75 years. They would also help shed light upon a number of scandals that have lapsed into obscurity, experts said.

Turkey’s chronic problems with state secrets returned to the country’s agenda after two officers of the Tactical Mobilization Group were captured last week as they stood watch near Arınç’s house in Ankara’s Çukurambar neighborhood.

The General Staff released a statement saying the two officers had been running security checks on a military officer living in the neighborhood who was suspected of leaking information. However, more detentions came on Friday, and civilian prosecutors, suspecting there could be attempts at obscuring evidence at the Special Forces Command, launched a search.

Ahmet Faruk Ünsal, the chairman of the Association of Human Rights and Solidarity for Oppressed Peoples (MAZLUM-DER), said state institutions do not have the right to be “mysterious” with state secrets. “Parliament is a state body that decides whether to declare war [against a country], but is denied the right to access state secrets. This is against the Constitution. If state documents are hidden from Parliament, then people who have access to those documents see themselves as superior to Parliament,” he noted.

Ünsal also said hiding documents on the grounds that they constitute state secrets increases suspicions over the institutions that hide the documents.

Mehmet Elkatmış, who headed a parliamentary committee set up in 1996 to investigate a hidden network of relationships between unlikely individuals -- such as a police chief and an international criminal -- exposed by a traffic accident, thinks that Turkey needs to redefine “state secrets” in a transparent way. “In a place where there is no transparency, democracy cannot reign. No light can be shed light on crimes unless state secrets are clarified,” he remarked.

Elkatmış also said the state should prevent people from arbitrarily terming any document a state secret. “If this is not the case, the notion of a ‘state secret’ can be frequently abused, crimes can be hidden and chaos can reign in the country. To prevent this, state secrets should be redefined, and they should be given a legal basis,” he added.

In April 2008 Turkey moved to establish a Higher State Secret Board (DSK) -- an ultimate authority for deciding what constitutes classified information and documents. The DSK was to be chaired by the prime minister and was charged with determining which documents and pieces of information are state secrets. The board would designate information and documents depending on their nature to be state secrets or fall another confidentiality classification.

In the past, debates over agreements between Turkey and other nations have also been affected by state secrets provisions. For example, debate over the price of natural gas sold by Russia to Turkey was stalemated when former Energy Minister Cumhur Ersümer, on trial by the Supreme State Council on corruption charges, said the agreement concluded with the Russians contained a special provision prohibiting the disclosure of the pricing. Similarly, defense agreements concluded between Turkey and Israel in the past have been criticized for confidentiality provisions contained therein.

In addition, the formerly established Susurluk, Şemdinli and Türkbank parliamentary commissions were all denied access to information and documents they needed on grounds that the requested information contained state secrets or trade secrets. A bureaucrat at the Finance Ministry also leaked personal information about Prime Minister Recep Tayyip Erdoğan, Finance Minister Kemal Unakıtan and several political party leaders to the media. No legal action was taken against those who leaked the information.