PRESS SCAN-RADIKAL

RADIKAL [HH] Turkey failed democracy test An academics inquiry about the British Queens gifts revealed how Turkey was different from Britain in terms of transparency and freedom of information, daily Radikal reported yesterday

Dr. Yaman Akdeniz from Leeds University Law Faculty applied simultaneously to Turkish and British government agencies in order to learn what Queen Elizabeth had given to the Turkish president and prime minister and to their wives during her visit to Turkey. According to the freedom of information law, the agencies had to respond to the request within 15 days

While the British Foreign Ministry responded within a month, Akdeniz did not receive a response from either the Turkish presidency or the prime ministry. Britains response said Queen Elizabeth gave a history book and a special frame with her picture to the first ladies

“The incident is distressing in terms of the implementation of freedom of information law,” Akdeniz said, adding that the law was not taken seriously in Turkey. “There is a board within the Prime Ministry that evaluates information requests, but it is ineffective. State polices should be open and transparent.”

“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.

A report prepared by Dr. Yaman Akdeniz entitled Freedom of Information in Turkey: A Critical Assessment of the Implementation and Application of the Right to Information Act 2003 is made available by BilgiEdinmeHakki.Org, a Turkish pressure group on 08 May, 2008.

The report incorporates data and research gathered between 2004-2008, and provides a detailed analysis of the implementation and application of the Right to Information Act in Turkey. High numbers of right to information applications between 2004-2006 (1,886,962 in total) suggest wider awareness of the existence of the law and the availability of a right to information and access to official documents in Turkey.

The report includes an assessment of the work of the Turkish Right to Information Review Council (BEDK) between June 2004 and March 2008 as well as the assessment of the implementation of the law by central and local government agencies. The report further assesses whether the enactment of a freedom of information law in Turkey helped to achieve an open and transparent regulatory process and whether the new law promotes openness and good practice within government institutions in terms of provision of information.

The report highlights both positive and negative observations with regards to the application and implementation of the Right to Information Act and provides a set of recommendations for improvement of the application of the Right to Information Act in Turkey.

The author of the report, Dr. Yaman Akdeniz, stated that “Although the enactment of the Right to Information Act is a very important step towards openness, transparency, and democratisation in Turkey, the report has identified several problems with the application of the law. As the report will show despite Right to Information Review Council decisions and administrative court orders, there is still resistance to give information, and a high number of public authorities are disputing Council decisions, either by ignoring them, or by appealing to administrative courts to challenge such decisions. Therefore, there needs to be significant improvements to the current system to break down the culture of secrecy and resistance to provide information.”

The report is available at http://www.bilgiedinmehakki.org/doc/Turkey_FOI_2008_Report.pdf
For further information see the Turkish Right to Information Blog: http://foia.bilgiedinmehakki.info
Dr. Yaman Akdeniz can be contacted at akdeniz@bilgiedinmehakki.org

Dr. Yaman Akdeniz is a senior lecturer in law at the School of Law, University of Leeds, United Kingdom. Dr. Akdeniz has been following the enactment of the Turkish Right to Information Act 2003 which came into force on 24 April, 2004 since its inception. He has been a freedom of information activist since 1998 and is also the co-founder of the BilgiEdinmeHakki.Org pressure group which monitors the implementation and application of the Turkish law since 2003.

BilgiEdinmeHakki.Org (www.bilgiedinmehakki.org) has been set up as a pressure group on 09 October, 2003, the day the Turkish Government enacted the Right to Information Act 2003 (No: 4982) to ensure that the Act is effectively used by the Turkish citizens and a greater degree of openness and transparency is established in Turkey as part of its democratization. Bilgi Edinme Hakki stands for Right to Information in Turkish, and the name of the organisation is based upon the Turkish Act.

The lack of clarity within the legislation and the related regulations led into some confusion about the cost issue and a decision of the Right to Information Assessment (Review) Council led into an amendment of article 22(1) of the Regulations on the Application of the Right to Information Act in November 2005. It was reaffirmed that there would be no cost on the first 10 pages of documents containing the information requested by the applicants as well as the related postal charges. However, proportionate charges could be applicable for anything beyond 10 pages including for electronic documents if the public authorities had to conduct research, and spend time for copying and reviewing, and compiling the information requested. They can also charge for postage if the documents are sent via post.

The details of the policy were announced in February 2006 when the Ministry of Finance published the tariff and the right to information application charges policy. Subsequently, this policy came into force in March 2006. According to the new policy, there is no obligation to charge, and the public authorities are free to decide whether they would require the applicants to pay for the information requested. However, if the public authorities decide to charge for the right to information requests, they then need to follow the Ministry of Finance policy. The policy clearly establishes that the charges are introduced to recover a proportion of the costs incurred to provide the requested information. The new charges policy was not introduced for the public iauthorities to make a profit, and should, as a matter of policy, not be more than the cost to obtain and gather the information. It is provided that photocopy and printing charges would be 50 Yeni Kuruş (0.5 YTL) per page (both for A4 and A3 size papers) but no charges would be applicable for the first 10 pages of any document.

Additionally, the public authorities may charge for research, reviewing, and compiling, but this should in any case be no more than 5YTL per page (no charges would be applicable for the first 10 pages of any document), and no more than 100YTL in total regardless of the length of the document. The policy also provides that there may be some additional costs if the information requested may not be provided electronically, or on paper. In terms of communication charges, no charges would be applicable for the first 10 pages of any document. However, public authorities may apply relevant postal charges, and 50 Yeni Kuruş (0.5 YTL) per page if the applicants require the documents to be faxed to them.

Finally, and more importantly, the Ministry of Finance policy established that the public authorities will not charge for documents that are provided electronically to the applicants regardless of the length of the documents. However, they may still charge for research, reviewing and compiling.

The application of the Ministry of Finance policy was confirmed in a decision of the Right to Information Assessment (Review) Council in March 2006 with regards to an unreasonable amount asked by an educational authority in Samsun. The Council reminded that the amount of 3,149YTL asked by the authority for research, reviewing, and compiling, was unreasonable and the maximum amount that could be charged in such a scenario was no more than 100YTL subject to no charges would be applicable for the first 10 pages of any document principle as laid down by the Ministry of Finance policy.

State Secrecy Council & State Secrecy High Council

If enacted will introduce a State Secrecy Council as well as a State Secrecy High Council. The former which will be formed by the Permanent Undersecretary for the Prime Minister, and will include as its members the permanent undersecretaries for the Prime Ministry, Ministry of Justice, Ministry of Interior, Ministry of Defence and Ministry of Foreign Affairs, will make the secrecy decisions. On the other hand, the State Secrecy High Council will include as its members the Prime Minister, and the ministers for the Ministry of Justice, Ministry of Interior, Ministry of Defence and Ministry of Foreign Affairs. The Prime Minister will act as the president for the State Secrecy High Council. Therefore, there is no provision for an independent oversight body within the proposed system. The State Secrecy High Council would provide its opinion with regards to court action involving state secret classified documents.

Definition of state secrets and classified information

In terms of what constitutes a “state secret”, documents the disclosure of which would seriously undermine and damage national security, the territorial and constitutional integrity of Turkey, or its foreign relations, would be classified as state secrets by the State Secrecy Council. The draft law also provides that certain documents could be protected as “classified information” by the State Secrecy Council and these would be documents the disclosure of which would seriously undermine the economic well-being of the state, state intelligence, military service, documents pertaining the administrative and judicial investigations and prosecutions, as well as documents which were classified as “secret” or “classified” by relevant authorities. The Prime Minister, the Chief of General Staff, State Ministers, and the National Security Council can ask the State Secrecy Council to issue classify documents that relate to their business as state secrets. Other public authorities can only ask the Council to classify documents as state secrets through the Ministries that they are connected to. According to the proposed law, the President of Turkey himself decides the nature and classification of secrecy with regards to the documents he holds.

Duration

In terms of duration, the proposed law enables time limited classifications as well as indefinite classifications. A maximum period of 75 years is provided by law with regards to time based classifications. The State Secrecy Council can modify the time period on such classified documents, or can de-classify such documents. Indefinitely classified documents are subject to review every 10 years. Classified documents which are classified for more than 10 years are subject to review every 5 years. Indefinitely classified state secrets would automatically cease to be state secrets after 50 years unless the State Secrecy Council decides to the contrary. In terms of the duration of other “classified information” these are limited by half of the time period specified for state secrets.

Criminal Sanctions for disclosure

The proposed law refers to section 258 of the Turkish Criminal Code and reminds that those who publish state secrets would be committing a criminal offence punishable between one to 4 years of imprisonment. However, if the publication and dissemination takes place through the media, or through the Internet, such actions would be seen as an aggravating factor and the penalty would be increased by 50%.

Everyone has a right to obtain information under Article 4 of the Right to Information Act 2003.

All natural and legal persons could apply to the public institutions for exercising their right to information. However, the Act also includes some limitations on this general right to information. Foreigners domiciled in Turkey and the foreign legal entities operating in Turkey can only exercise this right on the condition that the information that they require is related to them or the field of their activities; and on the basis of the principle of reciprocity.

Obligation to Provide Information

All public institutions are required to provide the information requested under article 5. They also have a legal obligation to respond to the applicants.

The public institutions are required to take administrative and technical measures to deal with requests under the 2003 Act.

They have a legal obligation to provide access to information and documents (subject to the exceptions set out in this law) and to review and decide on the applications for access to information promptly, effectively and correctly.