The proposed legislation, which is currently in draft form, could threaten individual freedom of expression, academic freedoms and all social, political, economic and technical professional activities

SERCAN KORKMAZ*

A new criminal definition termed “acting as an agent of influence” planned to be added to the Turkish Penal Code has appeared on Turkey’s agenda in recent days.

The “security oriented” approach adopted by official policy makers and implementors with rising populist and authoritarian trends around the world is resulting in pressure being brought to bear on the individual and collective rights and freedoms of societies. State institutions and populist politicians in Europe and the USA are displaying an increasingly security-oriented approach to social order. The view of Russia and China as significant threats by Europe and the USA in particular results in the Western domestic public being beset by oppressive rules and practices. These initiatives may be seen as the security perception of states increasingly falling on the anti-freedoms side of the scale. New legislations using definitions such as “influence operations” may also be viewed in the same context.

The government in Georgia has been making efforts to pass a piece of legislation that is similar to “acting as agents of influence,” which has just recently come to be debated in Turkey. There are many news reports of the strong societal reaction against the proposed law in Georgia. Large crowds, which are concerned that the ratification of the legislation will result in anti-democratic practices, have been protesting on the streets. The article by Ceren Sözeri, titled “Hibrit savaşlar döneminde ‘etki ajanlığı”(‘Influence operations’ in the age of hybrid wars) includes significant points and assessments concerning the situation in Europe, the USA and Georgia.

In Turkey, if the proposed legislation under the 9th Judicial Package is ratified in the form reported by the Anka News Agency on 10 May 2024, it seems we will be “welcoming” practices best described as “authority lies with the crown.” It is entirely possible that “crown” here will be replaced with the “state” or “authorities representing the interests of the state.”

To carry out an assessment of the text, which is currently in draft form, we have to assume that the text will become law and note that there is no publicly available information on a current alternative. As reported in the press, the draft text is as follows:

“Other activities:

“Article 339/A - (1) Those who

a) Carry out or commission research on Turkish citizens, organizations or institutions or foreigners in Turkey and;

b) Commit crimes in Turkey providing that their actions do not constitute the crimes governed by this section and are acting against the security of the State and the domestic or external political interests of the State in line with the strategic interests or instructions of a foreign state or organization are sentenced to between three and seven years of imprisonment. In the event the action constitutes a crime other than those governed by this section, separate sentences are issued for both the current crime and the other relevant crime.

(2) In the event the action is committed during a state of war or jeopardizes the State’s war preparations, warfare activities or military movements, the perpetrator is sentenced to imprisonment of between eight to 12 years.

(3) In the event that the crime is committed by those who are tasked with duties at units which have strategic national security importance or institutions and organizations which supply projects, facilities and services, the sentence is doubled.

(4) Permission by the Minister of Justice is required for the prosecution of this crime.

Before legally analyzing the draft, I should say that my first impression of the text was an out-of-control truck coming in our direction at full speed, carrying tons of cargo. The entire cargo consists of “national security,” “interests of the state,” “national interests,” “strategic significance” and “state security” justifications.

From a legal perspective, this draft is an excellent example of how to prepare a piece of legislation that is unlawful both in terms of letter and spirit. The draft seems to have completely overlooked the legal principles of clarity and predictability. The principle of clarity guarantees that the meaning of the law is of an objective nature, that it will have the same meaning and content for each individual and it will prevent implementors from evaluating it arbitrarily.

The principle of predictability ensures that the law is not open to interpretation in terms of the rights and obligations it instates, and does not change by person or situation. It appears that a special effort was made to avoid the principles of clarity and predictability in the draft text. If enacted in its current state, the cases to be filed based on the articles listed will resemble the witch trials in mediaeval Europe.

Opposition parties, civil society organizations, scientific research and intellectual output could all become criminalized

The concepts of “state security” and “domestic and external political interests” in the first paragraph of the article lack both a clear and predictable content. What is meant by “security,” what “domestic and external interests” are, who will decide what they are, where and how dissenting opinions will be positioned remain in the dark. Current and future governments can make taboos out of domestic and foreign policy and may respond to those opposing these policies or thinking differently with judicial pressure. Furthermore, the emphasis on “the strategic interests or instructions of a foreign state or organization” is also highly problematic and dangerous from a legal security perspective. The opinions of any opposition/alternative initiative or civil society organizations can be evaluated in terms of “for/against whom” they function with no regard to their content and could be considered criminal. Opposition parties, civil society organizations, civilian initiatives, scientific research, intellectual output and criticism of government or state organizations and practices could all be criminalized by asking the question “Who benefits from it.”

That the draft legislation is called “acting as agents of influence” could be conscious and serve a particular end. The word “agent” may have been selected on the assumption that it has negative connotations for the majority of society and thereby to seize the psychological high ground. This in itself may be, tragically or ironically, a case of “acting as an agent of influence.”

The section titled “İstihbarat Sözlüğü” (“Intelligence Dictionary”) on the official website of the National Intelligence Organization (MİT) describes an “agent of influence” as “an agent who carries out influence (impact) operations in enemy territory; who has the capacity to form opinions, strengthen or change existing opinions of individuals or societies through their intellectual composition, career, position of personality.”

The expression “enemy territory” at the beginning of the definition indicates that the state in question should be one officially defined as an enemy. Of major concern is the fact that the act of “form[ing] opinions, strengthen[ing] or chang[ing] existing opinions of individuals or societies” can only take place through the expression of an opinion. Therefore, any text or scientific study you may find in a bookstore or academic publication could be covered by this definition.

How could being influenced by a democratic, pro-liberty opinion constitute a “crime” in a democratic society, beyond being an intellectual activity? The opposite is already defined as a crime in the law and is over-applied. For example, it could be argued that a research article analyzing and criticizing unfettered mining activities which destroy the environment significantly harms the economy of Turkey by creating societal awareness. Or a research article on drug use in Turkey can be defined as “acting as an influence agent” by weakening the pursuit of national interests. Such a law could result in all output containing opinions, analyses or assessments of any issue of interest to society being interpreted as a potential threat, therefore destroying the clarity and predictability of rights and obligations concerning scientific research and the freedom of expression.

The draft legislation is to complement the “Crimes against state secrets and espionage” in the Turkish Penal Code numbered 5237. These crimes are governed by articles 326 through 339. These articles define crimes which involve “The theft, possession, altering, provision to third parties or disclosure of information that should stay secret due to its nature and for the security or domestic and external political interests of the State.” The common emphasis of these articles is that the information or document to be obtained “should be secret.” Secret information and documents include information and documents which have been defined and categorized as secret by state institutions. This means that the articles govern activities concerning information and documents which have been categorized as secret, are not publicly available and cannot be easily accessed by anyone. However, the new draft legislation lacks any such limitations. If it is ratified in its current form, the use of any piece of information in open sources that can be accessed by anyone, or any research and analyses relying on such information may be considered “acting as an agent of influence.”

Government to decide what constitutes a crime

The draft legislation requires obtaining permission from the Ministry of Justice, a political authority, for the prosecution over allegations of such crimes. If it is ratified, the draft legislation will allow the government to decide what constitutes crime through political considerations. The same condition applies to starting investigations for the crime of “insulting the president” and to starting prosecution for the crime of “denigrating the state of the Republic of Turkey, the institutions and organs of state.”

The proposed legislation, which will lead to open violations of individual freedom of expression, could threaten individual freedom of expression, academic freedoms and all social, political, economic and technical professional activities. How academic studies can be carried out freely should this draft be ratified is a mystery. If ratified, any study relying on open sources could be considered a crime. Most strikingly, even academic dissertations published by the Board of Higher Education could potentially be considered “agent operations.”

If the draft legislation is ratified, legal entities such as civil society organizations and associations, which are already under the regulation of the Ministry of Interior, will have to continue their existence and activities in the shadow of this law. Such a legislative text, which will force rights and freedoms into a dark tunnel, produces nothing but anxiety and pessimism.

* Sercan Korkmaz is a human rights lawyer.