Resistance for information disclosure – Bergama Case No. 2
In a related case to Bergama No. 1, following the 4th Administrative Court of Ankara rejection of the applicants’ stay of execution request in May 2006, the 4th Administrative Court of İzmir issued a judgment (2005/1732 e, 2007/155 K) in favour of the applicants on 28.02.2007. The Court stated that
“the public authorities are obliged to provide every kind of information and documents to those who ask them in accordance with the principles of equality, impartiality and openness which are requisites of transparent and democratic administration in accordance with article 4 of the Right to Information Act.”
The Ministry of Finance received the judgment of the 4th Administrative Court on 24 April 2007. Subsequently, on 11 May 2007 the Ministry of Finance appealed with a stay of execution request. On 20 June 2007, the 10th Chamber of the Supreme Administrative Court rejected the stay of execution request of the Ministry of Finance. On 31 July 2007, the applicants applied to the Ministry of Finance with a request of the execution of the judgment of the 4th Administrative Court of İzmir. On 29 August 2007, the Ministry of Finance sent a letter to one of the applicants stating that the appeal case at the 10th Chamber of the Supreme Administrative Court had not yet been concluded. The Ministry argued that once the notification was received by the Ministry of Finance the necessary action would be taken.
On 29.08.2007, the 10th Chamber of the Supreme Administrative Court dismissed the appeal of the Ministry of Finance concerning the rejection of the request of a stay of execution decision about the judgment of the 4th Administrative Court of İzmir. On 20 September 2007, the applicants once again applied to the Ministry of Finance with a request of the execution of the judgment of the 4th Administrative Court of İzmir. The applicants stated in a petition that the agents of the Ministry have been deliberately blocking the use of the law by not acting in compliance with their duty. The applicants stated that the agents should be prosecuted in accordance with article 237/1 of Turkish Penal Code (negligence of public agents). The applicants argued that subject to section 28, entitled Consequences of Judgments, of the Administrative Procedure Code, (Law no: 2577), the administration must take the necessary actions required by the judgments and stay of execution orders given by the Council of State, regional administrative courts, administrative and tax courts without delay. According to the Administrative Procedure Law, this period can under no circumstances exceed thirty days from the notification of the decision to the administration. However, in the actions concerning the implementation of distraint and sequestration, the act shall be implemented by the administration after the judgment becomes final. The Ministry of Finance did not comply and refused to answer to the applicants’ petition.
Although the Ministry of Finance received the decision of 4th İzmir Administrative Court in April 2007, it did not comply with the decision by September 2007 and refused to provide the requested information. As of writing (May 2008) the Ministry of Finance has not provided the requested information to the applicants. As the applicants had exhausted the domestic ways in connection with their complaints, they took their case and complaint once again to the European Court of Human Rights. The applicants argued an article 6 violation with regards to the non execution of the judgment of 4th İzmir Administrative Court which violates the fair trial clause of the European Convention on Human Rights. The applicants alleged that the State party has repeatedly violated article 6(1) of the Convention by not complying with the requirements of the Right to Information Law as well as the judgment of the 4th Administrative Court of İzmir. The applicants also claimed an infringement of article 10 as their right to receive information under the Right to Information Act was denied despite a Council decision and an Administrative Court decision in their favour. The applicants referred to the European Court’s recent decision in the case of Sdruženi Jihočeské Matky v. Czech Republic, which for the first time explicitly recognized application of Article 10 in cases of a rejection of a request for access to public documents. Finally, as the application of the Right to Information Act was rendered null and void by the public authority’s lack of compliance, the applicants claimed an article 13 violation. This second ECHR complaint was lodged with the Strasbourg court on 25 September 2007 and an admissibility decision is yet to be issued.
The long Bergama saga shows how difficult it can be to obtain information under the Right to Information Act in Turkey as well as difficulties to enforce the decisions of the Turkish Right to Information Review Council, and administrative courts. On the one hand, the applicants in the Bergama saga should be applauded for their determination to obtain the requested information from a public authority and for taking their cases to the European Court of Human Rights. On the other hand, resistance to disclose information by the Ministry of Finance despite a decision of the Council to the contrary approved by an Administrative court should be condemned.
Such a resistive action sends the wrong message in terms of transparency, openness, and democratic values in Turkey. On the contrary, it shows to other public authorities that the Turkish Right to Information Review Council lacks teeth and is incapable of enforcing its judgments, and so far the Council has done nothing to ensure that its decisions are not ignored by public authorities. For example, the Council itself could have taken judicial action by appealing to an administrative court on the behalf of the applicants. It could have sought political action and an inquiry could have been initiatied at the Prime Ministry or Parliament level. The Council could have also made recommendations in terms of amending the existing law so as to enforce its judgments. However, the actions of the Council seems to be politically motivated and the Council prefers to keep silent in terms of serious problems of compliance, and prefers to keep out of the dispute between the applicants and the public authorities once it lays down its decisions.
The above examples also show that despite judicial review and court action at administrative courts, a number of public authorities still do not comply with right to information requests and it has been documented that they do not disclose the requested information. Subsequent complaints and requests for criminal investigations through the State Prosecutors’ Office lead to nowhere. Article 29 complaints in terms of civil servants for crime of duty abuse within the public authorities are also largely ignored, or lead into no punishment or internal investigation.
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