Wide-ranging immunity hurts transparency, accountability in Turkey

National Intelligence Organization Undersecretary Hakan Fidan (R) shakes hands with Prime Minister Recep Tayyip Erdoğan in this Jan. 12 photo. Fidan came to the spotlight in February when an İstanbul prosecutor surprisingly summoned him to testify on the ongoing KCK terrorism probe. (PHOTO aa)

February 26, 2012, Sunday/ 11:11:00

While the new legislative change adopted last week brought an exceptionally broader immunity for the employees of intelligence organizations in Turkey, dealing a major blow to accountability and transparency, the existing laws on the books also provide a host of protections for a number of public employees in the country, mostly stemming from the military-era dictated constitution of the last three decades.

For example, Article 129 of the Constitution states, “The prosecution of public servants and other public employees for alleged offenses shall be subject, except in cases prescribed by law, to the permission of the administrative authority designated by law.”

Atilla Yayla, the political scientist and advocate of liberal values, finds that immunities provided to public officials stand in contrast with democratic principles. “Everybody is equal before the law,” he said in a phone interview with Sunday's Zaman this week. “The mere fact that some public officials were tasked with specific job should not hinder judicial review of their conduct,” he added.

A detailed report published this week by the State Audit Institution (DDK) on what went wrong in the trial of the murderers of Armenian-Turkish journalist Hrant Dink in 2007 blamed the protections bestowed upon public employees for preventing effective prosecution of negligence in his murder.

“A ruling by the European Court of Human Rights [ECtHR] dated Dec. 14, 2010, regarding the Dink v. Turkey case, concluded that the applicant's right to life was not effectively protected by Turkey, the right to a fair trial was breached, an effective investigation into the failure to protect his right to life was not carried out and relevant remedies were not properly offered,” the report said, adding, “In the face of this, allegations against public servants that they acted negligently in this case were verified, and criticisms were raised suggesting that the negligent public servants were favored during this process that resulted in the murder of Dink; and this made the content and outcomes of the administrative investigations into the murder questionable.”

Reşat Petek, a retired public prosecutor, told Sunday's Zaman that in democratic countries governed by the rule of law no person or institution can be unaccountable. “If you erect barriers in front of the prosecutors -- especially in investigations into organized crime and terror groups -- it would be difficult to pursue a comprehensive and reliable judicial probe,” he warned.

Petek was also critical of the recent amendment to the law on the National Intelligence Organization (MİT), which now makes it a prerequisite to seek special permission from the Prime Ministry to investigate MİT personnel as well as public officials specially tasked by the prime minister to complete a job.

Petek pointed out the possible negative consequences that might arise in practice regarding the amendment.

The ruling Justice and Development Party (AK Party) was criticized about double standards by the opposition parties because the government expanded immunities recently, breaking its promise that the AK Party government would clamp down on wide-ranging immunities and protections, including those given to members of Parliament. Many commentators find the government move cynical, saying that the AK Party politicians who promised to introduce transparency and accountability at election rallies are now acting quite contrary to their promises.

The government hastily arranged an amendment last week in Parliament, after an İstanbul prosecutor summoned five MİT officials, including the organization’s current undersecretary, Hakan Fidan, who was appointed to the post by Prime Minister Recep Tayyip Erdoğan, to testify in the investigation into terrorist network the Kurdish Communities Union (KCK) as suspects. The change is likely to protect many MİT agents who have had shady dealings that often fell well outside the law. Yayla said the amendment approved in a rush did not look very good for the government.

But the problem over immunities goes beyond MİT. The DKK report actually pinpointed the root of the problem as a century-old state preference in the country. The DDK inspectors stated that in this country you cannot bring those who acted on behalf of the state to trial. It all originated with members of the ultranationalist Committee of Union and Progress (CUP) who raided the seat of government, known as the raid of Bab-ı Ali, in January 1913. On Feb. 13, 1913, they bypassed Parliament to adopt an interim law on the trying of civil servants, exempting civil servants from being tried for offenses they had committed. The law has remained in effect for 86 years -- despite the fact that it was created by the coup stagers who bypassed the parliamentary process. In 1999, it was converted into the Immunity of Government Officials Law 4483. In fact, this was a slightly revised version of the former one because the immunity of civil servants was also preserved. Immunity is actually spelled out in a much stronger fashion in the 1982 Constitution. Petek said that the problem lies in the mentality of state institutions. He also pointed out the disagreements on where to draw the line with respect to crimes committed by public officials and how to define offenses that fall within the scope of official duty.

“I think shielding public officials from all arrest, detention or prosecution for offenses unrelated to their official duties without the consent of their superiors in the government administration would be simply wrong,” Petek said. “They should be tried just as regular citizens if they commit a crime that has nothing to do with their job description,” he added.

Pointing to this anomaly in the judicial system, the DDK report recommended some changes to remove the ambiguity. For example, it stated: “The system that requires prosecutors to ask for the permission of the administration to launch a judicial investigation of public officials facing certain charges is currently being implemented so broadly that this undermines the public’s sense of justice and cannot be reconciled with contemporary legal norms. In this regard, a method should be developed to eliminate the current inconveniences of the judicial guarantee system and to ensure greater harmony with contemporary legal norms.”

Faik Tarımcıoğlu, a retired military judge, also criticizes what he calls protective shields layered at different levels within the Turkish state structure. “There are hundreds of barriers that have existed for years in each ministry and agency, shielding officials from prosecution with impunity. The republic established itself on the basis of bureaucratic tutelage by empowering public officials with broad immunities,” he told Sunday’s Zaman. Apart from immunity for politicians and members of the judiciary and the military, several professional groups also benefit from immunity. Among them are general directors, board members, governors, members of city councils who are employed under the Law on Trial of Civil Servants and Other Government Officials, mayors, civil servants and other municipal employees and village heads.

Police officers, gendarmes, night guards in rural area, coast guards, forest guards and civil servants and managers at the State Waterworks Authority (DSİ), the General Directorate of Highways, the Social Services and Child Protection Agency (SHÇEK), the State Meteorology Bureau, the Turkish Statistics Institute (TurkStat), the Turkish Atomic Energy Agency (TAEK), the Religious Affairs Directorate and the İstanbul Waterworks Authority (İSKİ) can be tried only if their superiors approve the cases.

Members of the judiciary and the military also have immunity, enshrined in the Law on the Supreme Court of Appeals and the Law on the Military Supreme Court of Appeals. Rectors cannot stand trial without the permission of the Higher Education Board (YÖK), and academics cannot stand trial without the approval of rectors. The 1982 Constitution disallowed the prosecution of the 1982 coup generals based on temporary Article No. 15, which was removed with a constitutional amendment adopted in a public referendum in 2010. Politicians, however, cannot escape trial once their parliamentary immunity is lifted. A deputy stands trial as soon as s/he loses his/her status as a deputy. Tarımcıoğlu sees an opportunity to overhaul these wide-ranging immunities for public officials amid the controversy over MİT. “I think Turkey is moving toward the direction of becoming a state governed by the rule of law. There are so many unnecessary protections in the laws and the Constitution. Now we can review them all,” he explained.

Immunity protections become invalid, however, if prosecutors decide that a public official commits a major crime like a terrorist act, organized crime or coup against the constitutional order. These officials are tried by specially authorized courts in line with Article 250 and 251 of the Code on Criminal Procedure (CMK). The investigations launched over the past several years into shadowy incidents, unsolved murders, coups and coup plans in Turkey’s recent history has shown how specially authorized courts have been instrumental in clearing major obstacles to Turkish democracy, giving the chance for the first time to the country to bring its “untouchables” before the judiciary.

In fact, when prosecutors summoned MİT Undersecretary Hakan Fidan and four others to testify in the ongoing investigation into the KCK, they based their allegations on crimes that they say do not fall under the protection of immunities that are normally provided to intelligence agents doing their duties. The prosecutors’ office announced that the suspects overstepped their authority as defined by the law regulating the intelligence agency. But the government disagreed with that interpretation, prompting a new legislative change that put the agency out of the scope of Article 250.

Turkey has seen retired generals jailed in coup cases over the past few years, but retired Gen. İlker Başbuğ, the former chief of General Staff who retired in 2010, is the highest-ranking officer to be involved in legal proceedings thus far. Başbuğ is jailed at Silivri Prison, where most of the coup suspects have been sent. Now many in Turkey wonder what is so special about Mr. Fidan, close confidant of the Turkish prime minister, that the government had to pull out all the stops to make him invincible in the eyes of the law with an emergency bill.

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