“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.

Subsequently, during March 2005 the applicants appealed to the Right to Information Assessment Council. In June 2005, the Council issued its decision in favour of the applicants and rejected the reasons raised by the Ministry of Finance. The Council decided that 12 out of the 14 questions should have been answered and the requested information should have been provided to the applicants. The Council, in its decision, rejected the confidentiality arguments put forward by the Ministry of Finance by stating that the Ministry is under obligation to provide the information requested under the Right to Information Act 2003. According to the Council, article 5 of the Tax Procedure Law is not compatible with the subsequently enacted Right to Information Act. Article 5(2) of the Right to Information Act states that “the contradictory provisions of other codes [and laws] can not be applied after the date this law came into force.” According to the Council, article 5 of the Tax Procedure Law is one of those inapplicable provisions and cannot be used as an excuse to deny information to the applicants. Based on the principles of openness and transparency, the Council unanimously held that there was no legitimate excuse in not disclosing the information requested and this kind of information should be in the public domain, and is in close interest of the public.

Although it was expected that the Ministry of Finance would comply with the Council decision, the Ministry decided not to comply and the applicants were denied information for the second time in July 2005. In their response letter, the Ministry cited the same excuse based on article 5 of the Tax Procedure law. The applicants contacted the Right to Information Assessment Council for the second time on 27.07.2005 and informed the Council that the Ministry of Finance was ignoring its decision and was not complying with the Right to Information Act.

In August 2005, the Council issued a statement by writing to the applicants and stated that there was no need for the Council to render another decision on the same topic. The Council advised the applicants to submit a complaint petition against the responsible civil servants to the Ministry of Finance and ask the Ministry to take disciplinary action under article 29 of the Right to Information Act. Furthermore, the Council advised that the applicants can file a criminal complaint petition to a competent State Prosecutor’s Office against the responsible civil servants. The Council also reminded that the applicants can take an action before an administrative court in order to review the actions of the Ministry of Finance.

The applicants took an action before the Ankara Administrative Court for a judicial review of the decision of the Ministry of Finance dated 13.07.2005 No. 32509. Furthermore the applicants requested the court to issue a stay of execution decision as to the denial of information decision of the Ministry of Finance on the grounds that the information requested was in the public interest. On 04.05.2006 the 4th Administrative Court of Ankara rejected the applicants’ stay of execution request.

On 07.09.2005 the applicants filed a complaint petition against Mr. Savaş Balkan who is the highest civil servant of the Group Presidency of the Revenue Administration of Ministry of Finance on the grounds that Mr. Balkan committed a crime of duty abuse by not complying with the decision of the Council and by violating the provisions of the Right to Information Act by not disclosing the information requested. The complaint petition was sent to the head of the Ministry of Finance. However, this complaint action led to nowhere as a non-prosecution decision was issued by the Presidency of the Revenue Administration on 06.12.2005. However, the applicants appealed against the decision not to prosecute before the Ankara Regional Administrative Court on 20.12.2005. The applicants pointed out the value of rule of law and democratic culture in a democratic society where citizens have access to information without any unnecessary criteria. On 08.05.2006 the Ankara Regional Administrative Court dismissed the applicants’ appeal application without giving any reasoning for the questions raised by the applicants. Therefore, there were no punishment or investigation in terms of the highest civil servant who was responsible for the non-disclosure of the requested information.

The dismissal decision of the regional Administrative Court is absolute in nature in accordance with the Turkish domestic law. In other words, the applicants exhausted the domestic ways in connection with their complaints, and decided to take their case and complaint to the European Court of Human Rights by arguing an article 6 violation as they were obstructed to access a fair and just court trial.

The applicants alleged in their European Court of Human Rights application that the Turkish Administrative court, without making any merit examination about the applicants’ allegations, endorsed the decision of the institution where the suspect is employed. The applicants allege that the Regional Administrative Court without holding any hearing or requesting any observation from the applicants issued its judgment. The applicants argued that the administration and the judicial system have to issue their decisions by referring to the facts and the questions raised by parties in order to enable them to understand why their application is dismissed. The applicants also alleged that the current Turkish system concerning the investigation and prosecution of civil servant does not have impartial and independent standards. Therefore, the applicants alleged that the current system concerning the investigation and prosecution of the civil servants is absolutely ineffective. Accordingly the applicants state that article 13 of the European Convention was violated by the State Party. The applicants also argued that they were well aware of the tendencies of the government and of its agents in protecting the operations of the mine in Bergama. The application concerning Özkan and Others v. Turkey was lodged with the European Court of Human Rights on 03.10.2006 and an admissibility decision is yet to be made.

According to a report on queries made by individual citizens to public agencies in 2007 prepared by the Prime Ministry’s Council on Information Acquisition (BEDK), higher judicial organs have been the most resistant of all state institutions to comply with a law governing the right to information.

Those agencies reluctant to respond to requests for information in the first few years after the law’s enactment were much more responsive to queries in 2007. Another report released in May of this year compiled by Yaman Akdeniz, a senior lecturer in law at the University of Leeds, assessing the implementation of the Right to Information Act, agrees that agencies have been more responsive, but highlights that resistance still remains in place.

The most notable example, however, is undoubtedly the Constitutional Court, which received 3,389 requests and rejected 2,367 of them. None of the inquirers appealed the court’s rejection. Nearly 1 million requests were made to public agencies across the country last year and only about 7 percent were rejected. The Constitutional Court’s rejection rate last year stood at 69.8 percent.

The Supreme Court of Appeals rejected all 154 inquiries made to it last year and the Council of State rejected 115 out of 146 requests. The law went into force on April 24, 2004 as a necessary means to ensure a democratic and transparent administration. The BEDK was set up when several agencies refused to respond to queries from citizens.

Under the law, if an agency refuses to respond to a request for information, the inquirer has the right to appeal the agency’s refusal by turning to the BEDK, which decides whether an agency can provide the information sought or not.

Akdeniz’s report, released in May, incorporates data and research gathered between 2004 and 2008. It suggests that higher numbers of right to information requests in the latter years after the law went into force suggest broader awareness of the existence of the law and the right to information and access to official documents in Turkey. However, the right to information is not being completely complied with, Akdeniz’s report found.

At the time of the release of the report Akdeniz said: “Although the enactment of the Right to Information Act is a very important step towards openness, transparency and democratization, the report has identified several problems with the application of the law. As the report will show, despite the BEDK’s decisions and administrative court orders, resistance to give information remains and a high number of public authorities dispute the council’s decisions either by ignoring them or by appealing to administrative courts to challenge them. Therefore, there needs to be significant improvements to the current system to break down the culture of secrecy and resistance to provide information.”

Akdeniz, a freedom of information activist since 1998, is also the co-founder of the BilgiEdinmeHakki.org lobby group, which has monitored the implementation and application of this law since 2003. The full report can be acquired from their Web site.

The BEDK report

According to the BEDK report released last week, 395,557 queries were made to public agencies around the country in 2004 compared to a total of 998,442 applications demanding information in 2007. About 5 percent of the queries were denied an answer in 2004 and 7 percent in 2007.

The report found that the attitude of security-related institutions was changing positively on the right to information. For example, the National Intelligence Organization (MİT), which put up some resistance in the beginning, was one of the most responsive public agencies last year. No queries were made to the Military High Administrative Court and the Military Supreme Court of Appeals. The Constitutional Court received 3,389 queries while the General Staff received 8,405 requests for information. Only 89 requests were made to the National Security Council (MGK), a sharp fall from 128 queries in 2004 when the MGK had not yet been reformed to become a more civilian institution.

The General Staff responded to 6,100 out of the 8,405 queries it received, partially responded to 91, refused to respond to 1,654 and redirected 549 to other public agencies. Only four inquirers appealed rejected queries last year. In comparison, of the 2,017 requests made in 2004 to the General Staff, only 278 inquiries received a response, 365 received a partial response, 139 were rejected and 638 were unanswered, with the involved agency citing classified or sensitive information as the reason.

In 2007 MİT replied to 2,388 queries out of the 3,398 it received. It gave a partial response to 85 and refused to give any information at all to 837 queries. It redirected 88 queries to other public agencies. In 2004 MİT replied to 4,260 out of 6,185 questions and rejected 1,797.

In 2007 Parliament received 1,865 queries, 18.5 percent less than the year before. Nearly 70 percent of these queries received a full response while 17 percent were rejected. Parliament redirected 228 queries that should have been addressed to other institutions to the relevant public agencies.

• Total No. appeal applications to the Council between 24/05/2004 – 19/02/2008: 4,042
• Total Number of Council decisions: 3,539
• Total number of decision books: 93
• Number of decision books published: 38
• Number of unpublished decision books: 55
• Number of decisions published: 757 (21%)
• Number of unpublished decisions: 2,782 (79%)
• No of decisions cleared for publication but not yet published: 0
• Number of decision books cleared for publication but not yet published: 0
• Number of applications proceeded: 3,893
• Number of applications non-processed: 149
• Total Number of successful appeals: 1,453
• Total Number of partially successful appeals: 601
• Total number of rejected appeals: 1,391
• Total number of appeals in which further review was necessary: 24
• Total number of appeal applications to be discussed by the Council: 95

As can be seen above, majority of the Council decisions (2,782 (79%)) remain unpublished, an there is no “clear” indication in terms of when these decisions will be published by the Turkish Council (BEDK).

The detailed statistics obtained from the Council in September 2007 reveal the following:

➢ Total No. appeal applications to the Council between 24/05/2004 – 28/08/2007: 3,413
➢ Total Number of Council decisions: 3,205
➢ Total number of decision books: 81
➢ Number of decision books published: 28
➢ Number of unpublished decision books: 53
➢ Number of decisions published: 641 (20%)
➢ Number of unpublished decisions: 2564 (80%)
➢ Number of decisions cleared for publication but not yet published: 332
➢ Number of decision books cleared for publication but not yet published: 10
➢ Number of applications proceeded: 3,264
➢ Number of applications non-processed: 149
➢ Total Number of successful appeals: 1,210
➢ Total Number of partially successful appeals: 501
➢ Total number of rejected appeals: 1120
➢ Total number of appeals in which further review was necessary: 20
➢ Total number of appeal applications to be discussed by the Council: 208

As can be seen above, only 20% of the 3205 decisions of the Council were publicly made available as of September 2007 and no further decisions were published since March 2007.

Currently available decisions of the Turkish Council can be obtained (in Turkish I am afraid) through the BilgiEdinmeHakki.Org pages.

The detailed statistics obtained from the Council in March 2007 reveal the following:

➢    Total No. appeal applications to the Council between 24/05/2004 – 26/02/2007: 2,676
➢    Total Number of Council decisions: 2,475
➢    Total number of decision books: 69
➢    Number of decision books published: 28
➢    Number of unpublished decision books: 41
➢    Number of decisions published: 641 (25%)
➢    Number of unpublished decisions: 1,834 (75%)
➢    Number of applications proceeded: 2,321
➢    Number of applications non-processed: 355
➢    Total Number of successful appeals: 977
➢    Total Number of partially successful appeals: 419
➢    Total number of rejected appeals: 888
➢    Total number of appeals in which further review was necessary: 10
➢    Total number of appeal applications to be discussed by the Council: 213

I have received further statistics through the Council in August 2007, and more recently in March 2008. I will publish these on these pages within the next few weeks together with some analysis. However, as can be seen above, only 25% of the 2475 decisions of the Council were publicly made available as of February 2007 and these 641 decisions were published following pressure from BilgiEdinmeHakki.Org through a number of right to information requests.

Until March 2007, while a total of 2475 decisions were laid down by the Council, only 71 of these were made public between 2004-2006! Following yet another request made in February 2007 by BilgiEdinmeHakki.Org the Council decided to change its policy in terms of the publications of its decisions. It was revealed that the Council would start publishing all its decisions from 09 March, 2007, the day the Council’s decision was sent to BilgiEdinmeHakki.Org.

The Council is composed of 9 members, and the Council members serve for four years. The names of the members of the Council were announced by the Prime Ministry on 27 May, 2004. The Council of Ministers appointed two members amongst the four candidates nominated by the General Board of the Court of Appeals and the Council of State from their members; three members, each amongst the scholars of criminal, constitutional and administrative law who bear the title of Professor or Associate Professors; one member among the two candidates that have the qualifications to be elected as chief of Bar and are nominated by the Turkish Bar Association, two members amongst those who have been serving as general director; and a member among judges in service of the Ministry of Justice as recommended by the Minister.

It is required under article 14 that the Council convenes at least once a month or anytime upon the call of the President when there is need. The Council can set up commissions and working groups and in addition may invite representatives from the ministries, non-governmental organisations and other institutions to participate in the meetings as it finds appropriate.