THE SECRECY OF EAVESDROPPING

Fikret İLKİZ

According to the justification; “…the determination in advance of the forward looking strategies of the terrorist organizations within an action seek to disrupt the indivisible integrity of the state with its country and society, the Constitutional order and general security, the safety and security, the security of life and property of our community and the democratic process which our country is included and the prevention of eventual provocative events which may happen concerning the deputyship general elections ,aimed at transcribing the possible actions in planning and preparation phase, especially by reason of the use of GSM phones to activate the bombs in bombing actions…” it has been asked for a court decision in order to take a phone detail registrations by the police. According to another justification; “the determination in advance of the possible actions of notably the terrorist organization PKK/KONGRA GEL and the other organized crime organizations within the area of responsibility, the prevention of events which may happen, their disclosure in planning and preparation phase, with the view to take immediate preventive and protective measures…” this time the gendarmerie has demanded the monitoring of the phone calls to the Court…

In both requests, it’s not clear why it will be listened and why it will be registered.

On the other hand, what kind of “registration” both police forces have requested from the Court in order to hear all kind of communication? Except the information concerning the public institutions’ and organizations’ phone calls and their means of communication, it has been demanded a decision from the court to take all the detailed information (the received calls, the dialed calls and the Cell ID) of the fixed line or mobile (NMT), Turkcell, Vodafone (TELSİM) operated by Türk Telekom A.Ş., the communication made on the phone by Avea A.Ş, included international phone calls, to take the user’s and device information, the GPRS connections and the internet connections over GPRS, the inbox and outbox of the SMS, the DATA transfer over the internet and the communication information over the DATA line, the fax information, the detail registration of the subscriber’s information (name, address, identity, copy of the identity, where and when the sim card has been bought), to take the data concerning the detail registration online, all from the Court.

This is called “technical pursuance”. The police’s and the gendarmerie’s request is accepted by the Courts each 3 months and by extension. This means everybody can be listened. Everybody has been listened. Moreover, you can be fastened to listening while the other person is resting… With this kind of bugging permitted with the court’s decision and which abandons the liberties in behalf of security, everybody’s “communication” is monitored and registered.

As we know from the press, among the court’s decision given upon this kind of requests, the decision given about the gendarmerie has been rejected by the Ministry of Justice in written order but not the decision about the police’s request. Only at that time we learned that everybody is being listened and is listened.

 The penal department no.9 of the Supreme Court has decided, with its judgment docket no. 2008/874, judgment number 2008/7160 and dating from 4.6.2008, to reverse the Ankara 11^th High Criminal Court’s judgment number 2007/6522 dated from 19.12.2007 which has decided on the “technical pursuance”. According to the decision of the penal department no.9 of the Supreme Court; as per the article 22 of the Constitution, everybody has the freedom of communication and this should be preserved. The secrecy of communication is a basis. It has been indicated in the continuation of the decision that based on the reasons of national security, public order, prevention of committing crimes, protection of the general health and general morale or the protection of the other’s right and freedom, the secrecy rule can be suspended with the judge’s decision. In article 8 of “the European Convention for the Protection of Human Rights and Fundamental Freedoms” which we become party and we include it in domestic law legislation by approving it, everybody has the right to have its communication respected and that a public authority’s intervention to this right is possible in a democratic society only to a necessary extent and on condition that it is prescribed by law in order to protect the national security, the public security, the economic welfare of the country, to protect peace and order, to prevent the commitment of crimes, to protect the health, the morale and the right and freedoms of the others.

The Supreme Court, in its judgment, has aliened the legal arrangements regarding in which circumstances the communication will be detected. In these laws, the Supreme Court allows the detection, the listening and the registration of the communication in the framework of determined limits and limited to the police forces’ own area of responsibility and with the judge’s decision. Whatever the aim of the legal arrangements are, the Penal Department number 9 of the Supreme Court has concluded that no institution is entitled to listen-monitor-register the communication in a way to comprise the country-wide by suspecting people living in the Turkish Republic which is a democratic state of law. The police units which have demanded it can apply to high criminal courts which are entitled by the place where they are located. The penal department number 9 of the Supreme Court has ordered that the judges of that court member can give decisions about only their own judicial locality. In this way the Penal Department number 9 has reversed the judgment due to adjudication which cannot be given regarding “the listening of the communication after its detection by means of giving an unlimited authority”.

Therefore according to the penal department number 9 of the Supreme Court our phone calls have been listened, the fax, name, identity information including in which distributor the line has been bought, the internet connections have been listened-monitored-registered for six months throughout Turkey between December 2007 and June 2008.

The decision of the Penal Department number 9 of the Supreme Court has been checked with its revealed justification but has very important deficiencies. It has made a decision not to entitle the judges member of the High Criminal Court to give decisions about “tapping lines throughout Turkey”.  But even though there isn’t any clearance concerning the law enforcement officers’ demand about which person, with which phone, for what reason will be listened; the police units can demand this kind of “tapping” from the entitled Courts by the places where they are or their “area”. This kind of demand is unlawful. A decision shall not be given regarding the listening of Turkey according to the Supreme Court’s decision. The judges do not have this kind of “authority”. These demands shall be rejected; but is it possible to accept this kind of demand if the local and the person who will be listened are announced? According to us, it shouldn’t be accepted. First the secrecy of the communication shall not be violated in terms of “basis” and on behalf of just security. A decision of listening shall not be given by ignoring the fundamental rights and freedoms. The adjudication given to eavesdropping shall not cause the violation of a right. Offending against Law is not an excuse in a state of law.

The secrecy of eavesdropping shall be removed through law. Without assuring a legal legitimacy of eavesdropping, every intervention to communication is unlawful. Every justification which will be submitted and the fact the state of law’s is democratic are nothing but talk…

June 23th 2008