There should be no doubt that the proposed law will be a potential weapon to be deployed at any time to render the press and civil society organizations nonfunctional should it pass into law

KEREM DİKMEN*

The proposed law known publicly as the “agents of influence” appeared on the agenda of civil society immediately after the 2024 local elections. We learned about the draft from the special report by the Anka News Agency and there were plans to ratify it before parliament entered summer recess. Although the proposal then somehow dropped off the agenda, it has been submitted once more to the speaker of parliament on with a petition signed only by governing AKP MPs 18 October 2024. 

 Civil society organizations in Turkey, which could predict what legislation on “agents of influence” would mean for themselves in the future from the closely monitored examples of Russia and Georgia, objected to the proposal from day one. The most comprehensive civil society reaction was a statement released by 80 democratic society organizations, including associations, foundations, bar associations and labor unions, calling for the proposal not to be accepted by the parliamentary plenary. The statement emphasized that the proposal carried the risk of criminalizing the legitimate activities of civil society organizations such as documenting human rights violations committed by state and non-state actors and included hefty punishment, including long-term imprisonment.

Sezin Öney’s article, which was published on P24 in May 2024, describes how the global anti-human rights conservative wave targets narrowing the civilian field through various iterations of “agents of influence” legislation. When it first appeared on the agenda, the issue was hot not only in Turkey but also in Georgia. The article by Zeynep Şahin, published on Teyit, shows how the issue contains pitfalls for components of civil society other than rights advocacy. Before that, the European Court of Human Rights merged around 700 applications and took up a similar legislative arrangement in Putin’s Russia, which targets human rights advocates and civil society.

A closer look at the contents of the proposal submitted with the Grand National Assembly of Turkey will give us a better understanding of the current situation in Turkey. The proposed article reads as follows: 

Crimes against the security of the state or its political interests  

Article 339/A

 (1) With the exception of crimes governed by this article, those committing crimes to the detriment of the security or, internal or external interests of the State in line with the strategic objectives, or directives of a foreign state or organization are sentenced to imprisonment from three to seven years. Perpetrators are sentenced separately for the crime governed by this article and the crime they committed. 

(2) If the act is committed during a time of war or jeopardizes the war preparations or war effectiveness of the State, perpetrators are sentenced to imprisonment of from eight to 12 years. 

(3) The sentence is doubled if the crime is perpetrated by those serving at units of importance for national security, as well as institutions and organizations providing projects, facilities and services of importance to national security.

(4) Prosecution of this crime requires the permission of the Minister of Justice.  

Although not widely discussed in public debate, the article’s first sentence is worth paying special attention to as it contains a significant threat. This is because the actions listed in section seven of the Turkish Penal Code (TCK) titled “Crimes Against State Secrets and Espionage,” where the proposed law will be added if ratified, already foresees sentencing for the actions described there. Among them are the articles used as a weapon by Gulenist prosecutors in “military espionage” set-up trials. The proposal essentially leaves this section out to introduce sentencing for all actions in all sections other than section seven in the event they are committed “to the detriment of the security, or internal or external interests of the State in line with the strategic objectives or directives of a foreign state or organization.” The justification for the article reads “the proposal requires that actions which constitute a crime and are committed against the internal and external political interests of the State to be additionally punished as per this article.” 

Therefore, a court ruling concerning any criminal action defined in the TCK to the effect that it was committed “to the detriment of the security, or internal or external interests of the State in line with the strategic objectives or directives of a foreign state or organization” will result in the defendant being issued the sentence in the article governing the actual crime as well as the sentence in article 339/A. 

As an example, assume that a person is sentenced for the crime of “inciting the people to hatred and enmity or denigration.” As per article 216 of the TCK, this crime is punishable by a minimum of one year of imprisonment. However, if the court decides that the action of the defendant was committed to the detriment of the security, or internal or external interests of the State in line with the strategic objectives or directives of a foreign state or organization, the defendant will also be punished by a minimum of three years of imprisonment as per article 339/A. 

The most important quality of penal law norms is that they allow for people to be able to predict the meaning and consequences of their actions, should they carry them out. Someone who injures or steals the property of another person can predict that they will be punished as a consequence of this action.  

The text of the article makes it a punishable crime to commit actions to the detriment of the security, or internal or external interests of the State in line with the strategic objectives or directives of a foreign state or organization.

In the justification of the article, the concept of “security of the State” is defined as “protecting the existence of the State and safeguarding it from risks.” The justification then states, “Actions that may jeopardize the existence of the State violate the security of the State. It is well established that there is a close relationship between the internal and external political interests of the State and its security.”

The justification also states that “For the crime to form, the perpetrator must be acting in line with the strategic objectives or directives of a foreign state or organization. A foreign organization is an organization that was not founded or established as per the stipulations of Turkish law. Foreign organizations may be subject to foreign states or they may not be subject to any state.”

Grant beneficiary CSOs targeted

So, why does or should civil society object to all this?

In May, when the proposal was first revealed, Feti Yıldız of the Nationalist Movement Party (MHP) wing of the governing coalition made it abundantly clear that the target of the proposed law was CSOs receiving grants from abroad in a social media post. Given that following the ratification of a similar law in Georgia, posters with the expression “grant feeders” pasted on photos of administrators of the Media Development Foundation were posted at the entrance of the building where the foundation has its premises, it is clear that the use of the word “grant” in Yıldız’s post was no accident.

But what are grants and which functions do they serve for civil society in Turkey?

Although elections are essential for political participation, they are not the only means of societal participation by any stretch. Professionals’ organizations, labor unions, associations, foundations and groups which are not legal entities are just some components of civil society. Although CSOs in Turkey are relatively lacking in ability to exert pressure compared to their counterparts in Western democracies, they have historical background and some amount of power. They serve as a “public watchdog” to inform the public about the policies and actions of decision-makers which may affect them and serve to warn the public. Human rights defenders in Turkey, which are mostly organized under associations, monitor and report on Turkey’s obligations arising from national documents such as the Constitution and regional or international conventions such as UN or Council of Europe conventions. Monitoring and reporting on violations, laws and policies is a method of identifying whether states are fulfilling their obligations.

Civil society in Turkey does not have means to secure its own resources in today’s economic and political crisis. The state has put CSOs in a financial pincer and has placed significant limits on their ability to engage in income-generating activities through the donations collection legislation. Therefore, for CSOs active in Turkey and working in the field of human rights applying to foreign grants and funds is more of an imperative than a preference. These funds, or specifically “grants,” may be secured from organizations subject to the law of foreign states or from organizations which are not subject to the law of any state, as described in the justification for the proposed law. Turkish civil society may receive financial support from institutions such as the European Union or the Council of Europe, as well as the development agencies of foreign states, similarly to how the Turkish Cooperation and Coordination Agency (TİKA) provides support in foreign countries.

Thus, we arrive at the essence of the proposed law, which is hardly hidden. This is to render organizations, persons and journalists who conduct research into and monitoring of the state’s adherence to its Constitution and international conventions incapable of carrying out their activities, just as it is happening in Russia and Georgia. Although the removal of the expression in the first draft “those conducting or having conducted research into Turkish citizens, institutions, organizations or foreign citizens in Turkey” from the current draft may be seen as eliminating a further point of uncertainty, there is no guarantee that the law will not be used to interpret research as a criminal action if ratified in its current form.

A new blow against the press

Above all, “the security of the state” and “actions committed to the detriment of the internal and external interest of the state” invoked in the draft proposal are vague and not easily identifiable. What are internal political interests and what are external political interests? The concept of “political interests” is frequently used in section seven of the TCK, to which the proposal of agents of influence is to be added. The justification for the article defines political interests as “other interests such as those in the economic, financial, military, national defense, public health, public safety, public order, technological, cultural, transportation, communications, cyber-space, critical infrastructure and energy fields.” However, the justification for article 327 on “Obtaining information pertaining to the security of the State” in the law currently in force introduces a limitation by stating, “This article considers ‘political’ interests among State interests and therefore documents and copies pertaining to economic, cultural and similar interests do not constitute the subject of this crime. e.g. Interest in maintaining good foreign relations of the State [constitutes a subject of this crime].”  

Therefore, although the concept of “political interest” did not include the economic, cultural and similar interests before the proposal, the current proposal considers these to be the motivations of the crime of acting as an influence agent.

Why does this matter? For example, journalist Metin Cihan has been reporting on and documenting the fact that the Israel policy of the state of the Republic of Turkey does not align with statements by government officials and that while the government appears to be critical of Israel, state customs allow the export of many goods to Israel which can be used in the defense sector. By sheer coincidence, the pro-government Yeni Şafak newspaper has presented Cihan as a target and accused him of being an agent of influence for Israel. This is a concrete example of what the proposed law is aiming for. Given that the reporting in question is about financial and economic matters and that the state derives benefits from the trade, it is clear that the press, already constrained by the “disinformation law” stands to suffer a new blow from the proposed article. 

To return to the issue of civil society, grants and agents of influence, another example may be given about the potential consequences of the proposed legislation without engaging in far-fetched speculation.  

The Republic of Turkey has been putting its anti-LGBTI+ rights policies in writing for a while now and has been tasking line ministries such as the ministries of the Interior, National Education and Family and Social Services. At present, state institutions describe an anti-LGBTI+ rights stance as a cultural interest. In fact, activity 2.2 under strategic target 2 titled “Strengthening the fight against violence, harmful movements and habits which threaten the family” in the Protection and Empowerment of the Family 2024-2028 Vision and Action Plan document published by the Ministry of the Family and Social Services in May 2024 is described as “The preparation of a strategy document which identifies standards for fighting global de-sexualization movements.” Action 2.2 tasks all ministries as well as the Presidency of Religious Affairs and CSOs as implementors. Therefore, combating so-called de-sexualization projects, that is to say, the very existence of the LGBTI+, is now a strategic target of the state 

This makes it clear that the activities of associations which work in the field of LGBTI+ rights or cover this among other fields will be a conspicuous target for the law on agents of influence. To exemplify, at present many CSOs in Turkey receives financial support from the Swedish International development Cooperation Agency (Sida). As described on Sida’s website, “Sida is a government agency that works on behalf of the Swedish Parliament and Government. Swedish development cooperation and humanitarian assistance is guided by government strategies. The strategies set the objectives for Swedish development cooperation.” 

It follows that an activity in the field of LGBTI+ rights by a human rights organization in Turkey which is supported by Sida or similar organization and its statements or work connected to this activity may easily be considered an activity to the detriment of the cultural interests of the state, which in turn may be means the organization may be accused of acting to the detriment of political interests. 

The above scenario is just one example. Any civil society or alternative media organization which works on the themes of freedom of expression, cultural rights, minority rights etc. or with a focus on spaces such as prisons, shelters, student housing and universities and is supported by grants or other funding by foreign organizations may become a natural target of the legislation on agents of influence, should it be ratified. 

Unfortunately, with its already muted voice, objections from civil society to the proposal are not enough alone. The issue has not appeared on the agenda of political parties. It has also received attention from only a few bar associations. Yet, there should be no doubt that the proposed law will be a potential weapon to be deployed at any time to render the press and rights advocate civil society organizations nonfunctional should it be ratified.

* Human rights advocate, lawyer