Council of Europe asks Turkey to adopt whistleblower law

In a report prepared by the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe (PACE), the European human rights watchdog said Turkey, among other countries, lacks necessary whistle-blower legislation, though it refers whistleblowers to its witness-protection laws when a particular situation calls for that. It said the witness protection laws in Turkey “may not take the place of a broader law covering the protection of all different aspects of whistle-blowing,” though it partially cover some aspects of the protection of whistleblowers.

The report also said there is a problem in appropriately defining the term “whistle-blower” in Turkey, which leads to a wider problem when whistle-blower protection is confused with witness protection laws. The difference between a witness in need of protection and a whistleblower is that the latter will not necessarily wish to, or need to appear in a court of law, considering that whistle-blowing measures are designed to deter malpractice in the first place or to expose it at an early stage, the report underlined.

The secret witnesses law in Turkey was created in compliance with legislation passed in 2008, the Witness Protection Law. The law was part of Turkey’s European Union harmonization efforts regarding the effective combating of terrorism and organized crime. Under the Witness Protection Law, those who testify as witnesses in trials for crimes that call for a sentence from 10 years to life and trials involving organized crime or terrorism can benefit from protective measures.

The law does not offer protections, however, to whistleblowers or journalists who publish stories using whistleblowers as confidential sources in Turkey. Thousands of cases have been filed against newspapers and television stations as well as reporters since the Ergenekon investigation started in June 2007.

Ergenekon is a criminal network accused of working to foment chaos in society, leading to a military takeover.

Justice Minister Sadullah Ergin recently announced that cases had been filed against 4,139 journalists between June 2007 and October 2009 for violating confidentiality, influencing the independence of the judiciary and violating the confidentiality of preliminary investigations. The number of cases filed against journalists covering Ergenekon is estimated to have reached 5,000. Over 20 journalists, including prominent writer Şamil Tayyar, who is best known for columns revealing aspects of the Ergenekon terrorist organization, have already been convicted in these cases.

Many newspapers have also been targeted for publishing articles on Ergenekon. The Zaman daily is currently facing nearly 185 court cases, the Star daily 150 and Yeni Şafak and Taraf 100 court cases each regarding their reports on the Ergenekon probe. These attempts to indict newspapers and journalists covering the Ergenekon case are usually based on Turkish Penal Code (TCK) Article 285, which criminalizes the “violation of confidentiality,” and Article 288, which criminalizes “influencing the independent judiciary.” Hundreds of such cases have been filed by prosecutors against various press organizations.

Journalists’ prosecution violates human rights convention

The Council of Europe, on the other hand, attaches great importance to whistle-blowing, especially when it comes to the protection of journalistic sources, which is linked to the protection of whistleblowers when a disclosure is made public. It noted that “once the disclosure has been made to the media, the journalist should have the right to protect his or her sources. If a whistleblower cannot make a disclosure internally because he/she reasonably fears that such action would result in internal sanctions or that the internal disclosure would not have the desired effect, and therefore decides to use the media as an external avenue to ‘blow the whistle,’ then he/she should benefit from indirect protection in the form of the journalist’s protection of his/her sources.”

During the Ergenekon investigation in Turkey, it has been argued that there is a long list of unconstitutional acts that the military has been at the center of in addition to its heavy involvement in politics. And yet the Turkish Armed Forces (TSK) deplores the leaking of those plans to the media, filing complaints against the papers concerned instead of launching investigations into the allegations. This practice has led to accusations leveled against the chief of General Staff of turning a blind eye to the substance of these allegations and criticism of the military chief for employing tactics of intimidation as regards possible whistleblowers.

Chief of General Staff Gen. İlker Başbuğ explicitly threatened the media last month, warning that many reports that appear in newspapers and on TV related to the military constitute a crime carrying a jail sentence of up to six years. Speaking at a military reception in Ankara on March 15, Başbuğ complained that some news reports aim to undermine relations between officers and their subordinates. “We have not filed criminal complaints against those reports yet, but you can guess the outcome if we do. If you commit such a crime, you will be punished in accordance with Article 95 of the Military Penal Code, which stipulates a jail sentence of between three and six years,” Başbuğ said. The military chief’s remarks, however, were met by indignation by analysts, who accused Başbuğ of making statements on political issues.

Drawing on examples from the rulings of the European Court of Human Rights (ECtHR), the Council of Europe report referred to the 2007 Tillack v. Belgium case, where the court upheld the right of a German journalist working for Stern magazine to protect his sources concerning the articles he had published on alleged irregularities in Eurostat and in the European Union’s anti-fraud office, OLAF. The court found Belgium to be in violation of Article 10 (freedom of expression) of the European Convention on Human Rights (ECHR) because of searches and seizures carried out by the Belgian police at the home and office of the journalist.

The court stressed that the right of journalists to protect their sources is not a “mere privilege to be granted or taken away” but that it is a fundamental component of the freedom of the press. “This judgment should incite lawmakers throughout Europe to also reflect on the importance of the media as an external voice for whistle-blowers,” the Council of Europe report suggested.

The report asked all member states including Turkey to review their legislation concerning the protection of whistleblowers to ensure the legislation protects, from any form of retaliation (unfair dismissal, harassment or any other punitive or discriminatory treatment), anyone who, in good faith, makes use of existing internal whistle-blowing.