THE LEGISLATIVE PROPOSAL ON MIT (NATIONAL INTELLIGENCE ORGANIZATION OF TURKEY) IS A BIG THREAT TO FUNDAMENTAL RIGHTS AND FREEDOMS
The legislative proposal on legal amendment in the law on MIT (National Intelligence Organization of Turkey), prepared by AKP Çorum deputy İdris Şahin and AKP Niğde deputy Alpaslan Kavaklıoğlu, is accepted with small changes in TBMM (The Grand National Assembly of Turkey) Affairs Commission and taken on the agenda of the General Assembly.
Turkey, is a country which wants to solve the issues by means of democratization in accordance with the both EU accession negotiations and solution process of Kurdish issue. This country has experienced military coups and lived for 54 years with the constitution made by the people who made the military coup. Turkey, after being a member of NATO, is also known as a country of sabotages, murders, assassinations and massacres committed by intra-state illegal structure/s called as counter-guerrilla similar with European Gladio. In addition to counter-guerrilla, we struggle against lots of intra-state illegal structure/s or parallel organizations like Jitem, Hizbulkontra and Ergenekon. Coming to terms with the problematic past has yet to be experienced in this country. The truth and justice commissions are still yet to be founded. The intra-state illegal structure/s could not been judged by political power and didn’t give an account to public. In the light these facts, the amendment in the MIT Law which will provide MIT a position over the Constitution, threatens both citizens and political power. This fact should be well understood.
When we examine the legislative proposal;
1- The authorization of MIT to gather information, document, data and record from all types of public institutions and organizations,professional organizations under the category public institutions, all types of public institutions and organizations under banking law and all the organizations whether have a legal entity or not and to benefit from their archives, electronic data processing centers and communications infrastructures and the authorization to contact them is clearly contrary to the Article 20 of the Constitution and the principle of the protection of private and family life guaranteed by the Article 8 of the ECHR and principle of protection of personal data. If this proposal passes into law, in Turkey, no one’s, institute’s or organization’s private information and personal data, whether have a legal entity or not, will not be under protection. With this law Turkey is going to be a state which MIT is in control of everything.
2- With this legislative proposal, prosecutors cannot conduct investigations of crimes against state security, crimes against the constitutional order and functioning of this order, crimes against national defense and espionage crimes and should give files to MIT if requested. This means; an intelligence agency under the Prime Minister can gather information about the detentions of people from the government party or its members and report this information to Prime Minister’s Office and cause evidence to be blacked out and suspects to escape. This case is clearly contrary to the Article 38 of the Constitution and the Article 6 of the ECHR. If this proposal passes into law, in investigations and prosecutions of all offenses specified, right to a fair trial would be violated.
3- With this legislative proposal, for the intelligence activities, new fake legal entities will be established and conditions open to all kinds of manipulation will be created. For example; fake newspapers, associations, companies will be established and information of them will be published as if real information. Therefore, the public would often be manipulated and public’s right to get information would be breached in this way.
4- With this legislative proposal, MIT members, in all Turkey can take judicial decisions that MIT needs, by a member of Ankara Heavy Penal Courts which will only be determined by HSYK (Supreme Council of Judges and Public Prosecutors). This case is contrary to the principle of natural judge and the Article 37 of the Constitution. Before the law about the abolition of special authorized courts comes to force, the implementation of special authorized judges forms a major contradiction.
5- With this legislative proposal, investigations and prosecutions of MIT members will be almost impossible. In accordance with the existing law MIT members are protected related to their duties yet the proposal shall provide them an absolute immunity. Thus, the 38. Article of the Constitution and every criminal procedure related to crime and punishment are violated. In the proposal the public prosecutors should contact MIT to investigate MIT members.andit is an absolute legal scandal. With this legal regulation everybody in Turkey is at risk of exposure to arbitrary applications of MIT officials. Considering there is impunity policy in Turkey, such kind of a proposal means to repeal the Constitution. As the public does not trust MIT and its membersproviding an absolute immunity to such an organization will turn Turkey into an intelligence state. If political power does not want its staff to be touched by justice, the only action to be taken will be appointing any of these staff to MIT. This situation will threaten social peace. Political power do not have a right and authorization to legislate such a law. This article is the most dangerous article in this law and should be removed from the proposal. After MIT has been caught for its activities in neighbouring countries, providing absolute immunity to MIT with this proposal will increase “the potentiality of Turkey to be in a war”. Shipping arms and sending militants to a neighbouring country to make terrorist acts, definedprescribed in international conventions, are also major crimes in terms of Turkey’s security. Taking the perpetrators of these crimes under protection is completely contrary to law. In the future, whole Turkey society may be under suspicion because of the crimes of several MIT members.
6- With this legislative proposal, it is foreseen repatriation of non-Turkish prisoners and detainees with prisoners and detainees in another country. This provision is contrary to the Article 38 of the Constitution. Crimes and punishments are personal. Perpetrators of crimes have to serve their sentence. There is no restriction in the proposal regarding only MIT can make repatriation transaction. This increases our doubts. With this provision, MIT will ease the repatriation process of the international militants and the people helping them. In Turkey, there are still non-Turkish criminals. Inserting provisions about repatriation of these non-Turkish criminals, is unacceptable for victims of these crimes.
7- With this legislative proposal, it is foreseen to imprison people who publish the documents leaked from MIT in written, visual or social media. This is contrary to the principle of the freedom of press. Of course, leaking documents and information from MIT must be punished. But it is contrary to the Article 10 of the ECHR to punish the press members who are performing for the public’s right to get information.
8- With this legislative proposal, it is specified that, in the context of the duties and power given to MIT, every demand will be fulfilled primarily, people fulfilling these demands will not have any legal responsibility and in the case of different provisions in other laws regulating the same subject, new MIT law’s provisions will be implemented. This will turn the rule of law upside-down. With this provision the Article 38 of the Constitution will be repealed. Putting such provisions can cause people to commit offenses in cooperation with MIT. This is a quite dangerous provision.
9- The regulation about MIT members -they cannot stand as witnesses in the context of MIT’s duties and activities- means; MIT members, who have authorities over the Constitution with this legislative proposal, are thought to be informed about everything and by restraining their witness they want to dissemble every crime and penalty. This is contrary to the norms of criminal law matters and also disables the justice organization.
10- With this legislative proposal, it is specified that, in cases where national security and interests of the country require, MIT can directly contact every Turkish or non-Turkish organizations, formations and people and can perform appropriate coordination methods. The political power cannot define peace and solution process. The political power does not negotiate to make the process permanent but approaches to the problem as security-oriented. In this regard, the MIT committee which talks with the PKK leader Abdullah Öcalan, who is in prison in Imralı Island for 16 years, will be secured but Abdullah Öcalan himself, the BDP-HDP committees, the authorities of KCK, the press members and NGO representatives who interview with KCK authorities, the people who worked for the wise people committee, and every organizations, institutions, natural and legal people who work for the solution of Kurdish Issue, will be left out of this security. The most important thing that the Government should do is to make a law of peace and negotiation and secure the process at least. Consequently, this provision is not in favour of peace and solution process. The Government continues its unwilling behaviour in the process.
In conclusion, this legislative proposal abolishes the Constitution dated 1982 which we regarded with disfavour. The proposal transforms the State into an intelligence state and wants to bring the political power in a position in which theGovernment can liquidate its oppositions by the ability of MIT. Parliamentarians, especially those who will vote in favour of the proposal, should remember that if this legislation proposal is accepted they will breach the fundamental rights and freedoms of citizens. Mr. President should think very carefully before his decision to approve or send back this law proposal. If approved, the Constitutional Court should make an urgent decision to stop the implementation of this law which abolishes the Constitution. Without these, Turkey is going to become a state where the security of law is completely destroyed.
Human Rights Association