The “agents of influence” bill, which contains many ambiguous terms such as “strategic interests,” “directives,” “organization” and the “internal and external political interests of the State” is not predictable precisely for this reason. What we can predict with certainty though, is that it will result in severe violations of fundamental rights

MELTEM AKYOL

 

The controversial proposed law, which is commonly referred to as the “agents of influence” bill, first appeared on Turkey’s agenda in spring 2024. The first reporting on the proposal, which passed through the Parliamentary Justice Commission in October and is expected to be brought before the plenary soon, appeared in the pro-government Yeni Şafak newspaper. 

 

The news item dated 6 May read: “Minister of Justice Yılmaz Tunç had signaled new legislation concerning the trial of spies. According to information obtained by Yeni Şafak, measures are to be taken against ‘agents of influence’… The 9th Judicial Package which will be brought to the Grand National Assembly of Turkey before the end of the legislative year will contain new provisions for new types of espionage crimes. ‘Agents of influence’ which is a new dimension of the fight on the espionage front will be added to the Turkish Penal Code (TCK). 'Agents of influence’ will be added as a new term to the terms ‘espionage’ and ‘spying,’ which are already in the TCK. Focus will be on agents of influence who appear to serve the interests of Turkey, but actually form public opinion against it through propaganda.” 

 

With other news and statements on the following days, the debate intensified. There was no judicial package to speak of, but details of the new provisions circulated with reference to “official sources.” Once objections arose, officials from the Justice and Development Party (AKP) issued statements that the “agents of influence” legislation was not included in the package. As disputable statements continued, the 9th Judicial Package was submitted to parliament on 3 July. “Agents of influence” legislation was not included. 

Proposal flies from the 9th Judicial Package, lands in the Law on Notaries Public Package

It is common knowledge that if you have a gun on the wall in act one it should be fired in the second act. And so it was. The proposed law, which disappeared from the 9th Judicial Package as soon as it had appeared, rematerialized, with some changes, among the 23 articles of the “Proposed Law on Amendments to the Law on Notaries Public and Some Other Laws,” which was submitted to the Parliamentary Justice Commission on 22 October. Then it passed through the commission in two days. 

 

The article to be added to the section of the TCK on “Crimes Against State Secrets and Espionage” is as follows:

 

“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.

 

“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 from eight to 12 years.

 

“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.

 

“Prosecution of this crime requires the permission of the Minister of Justice.” 

 

“The essence of the proposal is still there, the danger has not lifted”

 

The final version of the draft no longer includes the expression “those conducting or having conducted research against Turkish citizens, institutions, organizations or foreign citizens in Turkey are punished with from three to seven years of imprisonment” from the previous version. 

 

According to lawyer Kerem Altıparmak, “The current draft gives the appearance of having ameliorated the risks in the previous drafts.” It “gives the appearance” because it is not exactly so. As Altıparmak explains it: 

 

"The previous text started by saying ‘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’ -and that part is still the same – and continued with ‘or those conducting or having conducted research against Turkish citizens, institutions, organizations or foreign citizens in Turkey are punished with from three to seven years of imprisonment.’ To put it simply, the old draft made it a crime to carry out research about foreigners or about Turkey itself, even if there were no other crime. This was on the condition that it should be carried out ‘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.’ This part on research is absent from the current draft. What remains is ‘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 – it is the same up until this point - are sentenced to imprisonment of from three to seven years.’ You will have noticed that in the first draft ‘committing a crime’ was not a necessary condition, conducting research could be considered a crime. In the current draft that part has been removed and it is stated that this new crime can only form if another crime has been committed. This appears to be a good thing at first and it indeed is.”

 

So, can we conclude that those conducting research or writing reports will not be punished, with punishment reserved for those committing crimes? Altıparmak thinks that the change was made to make people think this way. He continues, “The essence of the proposal is still there, the danger has not lifted.” 

 

“Other charges will be the cherry on top”

 

Altıparmak gives an example: “Let’s say you are writing a report about human rights violations in Turkey and mention the responsibility of the president. You are writing this report on behalf of an international organization. Or perhaps you are researching and evaluating this situation at a media organization that is funded by an international organization. You are then investigated on suspicion of ‘insulting the president.’ Remember that the article states ‘those committing crimes in line with the strategic objectives or directives of a foreign state or organization are sentenced to imprisonment of from three to seven years. Perpetrators are sentenced separately for the crime governed by this article and the crime they committed.’ Why is this important? Because currently the crime of insulting the president is punishable by up to four years of imprisonment and the crime of insulting a public official is punishable by up to two years. However, should these crimes be considered under the draft article, the sentencing begins from three years and goes up to seven years. An investigation which would normally result in a ruling to defer the sentence could put someone in prison when it is merged with the proposed article. Given what a wide catalogue crimes relating to the freedom of expression there are in Turkey, this will be the cherry on top of writing or saying something, expressing an opinion and everything else that is made subject to accusations. Perhaps it is more accurate to say that the other crimes will be the cherry on top of this one. Let me give another example: Let’s say you are an academic going abroad on a research grant. You write something on the freedom of faith in Turkey and are investigated for ‘provoking one section of the public against another.’ Now, with the new law, it is possible that you may be told you have received money, you have written what you did in line with the strategy of a funding organization or another country.’ This is often said especially of LGBTI+ organizations. But it may be brought up more often from now on.”

 

“Its use is limited only be implementors’ imagination”

 

Terms used in the proposed law, such as “strategic interests,” “directives,” “organization,” and the “internal and external political interests of the State” are very ambiguous. Therefore, it is unclear what awaits if the proposal is ratified. Journalist and political scientist Sezin Öney has pointed out this “unpredictability.” According to Öney, “For all its unpredictability, the groups the legislation will be of primary concern to are journalists, opinion formers and civil society activists.” Öney mentions that even before the new provisions had been ratified, journalist Metin Cihan, who revealed that trade between Turkey and Israel continues despite the situation in Gaza had been accused of being an “agent of influence” and adds, “Metin Cihan is being accused of being an ‘Israeli agent’ despite questioning the ongoing trade between Turkey and Israel.” 

 

According to Öney, although the “agents of influence” proposal appears to be of primary concern to journalists and activists, it could be used to the detriment of almost anyone: “How such an ambiguous piece of legislation can be used is limited only by the implementors’ imagination. You may include anything and everyone in it.”

 

More like Russia and Georgia than Europe

 

Officials from the National Intelligence Agency and the Ministry of Justice attending the sessions of the Parliamentary Justice Commissions have likened the proposed legislation to provisions in effect in Europe. Öney says that on the contrary, such provisions in Europe and other Western countries target foreign organizations which are active there and openly engage in lobbying and adds, “Of course, those provisions are not without their problems, but the ‘agents of influence’ proposal in Turkey is far more ambiguous and is concerned more with the citizens of Turkey than foreign citizens.”

 

Meanwhile, Russia and Georgia present a much different example. A recently ratified law in Georgia requires civil society organizations, which derive a certain proportion income from abroad, to register as “organizations serving the interests of foreign nations.” When the law came into effect on 1 August 2024, CSOs refused to register themselves as such in protest. The results of the 26 October 2024 election in Georgia were contested. The incumbent Georgian Dream party refused to step down, claiming they had won the election, while the opposition claimed that the ballot had been tampered with, stealing their victory. According to Öney, “This situation makes one think whether it is possible to hold free and fair elections in which the opposition can be elected to government in countries where legislation on such matters as ‘influence agents’ is ratified.”

 

Russia first ratified its law on “foreign agents” in 2012. According to Öney, ambiguous concepts such as “political activity,” “foreign financing” and “foreign influence” have been used ever since to label CSOs foreign agents. These ambiguous legal terms allow executive branch officials and courts to interpret the law as widely as they would like and arbitrarily decide who is to be considered a foreign agent. 

 

In Russia, organizations which are labelled ‘foreign agents’ cannot implement educational activities in state schools, hold events open to the public, produce or distribute educational materials for children. In authoritarian countries, groups which are labelled foreign agents are openly stigmatized, buried in paperwork and subjected to bureaucratic harassment. Furthermore, the scope of these laws is constantly widened. In Russia, in addition to CSOs, media organizations came under the legal risk of being labelled foreign agents in 2017 and those publishing, broadcasting or expressing opinions on social media in 2019. Since 2021, those expressing opinion on any subject pertaining to the military and security forces have been under risk of being considered “agents.” The censorship laws enacted in 2022, with the start of the war in Ukraine, have merged with the “foreign agent” laws. Anyone who is opposed to war, who questions Russian war gains, who is a detractor or expresses an opinion that is in some way contrary to the Kremlin line faces a judicial threat.

 

ECtHR’s Russia judgment: Violation of the principles of freedom of expression, freedom of association and right to privacy

 

In addition to what Öney has said, the European Court of Human Rights has recently issued a significant judgment concerning the “foreign agents” law in Russia and ruled that the law was a violation of the principles of freedom of expression, freedom of association and right to privacy. 

 

Lawyer Kerem Altıparmak says the following about the situation in Russia in addition to what Sezin Öney recounted: “In Russia, things have gotten completely out of hand. Very small sums, we are talking about a few euros, can lead to being labelled as an agent. The ECtHR has found this to be a violation of the freedom of expression. As for Turkey, let us say a publisher which derives its main income from other sources also receives a small amount in funding or support. Any publication produced by that publisher can be considered to fall within the scope of the proposal because it has received such an amount from such a source. It is unclear how the ‘strategic interest’ or ‘directives’ in question here are to be identified. What is the internal or external political interest at stake, whose internal or external political interest? These are also unpredictable. The provision invites arbitrary decisions. It is very difficult to answer the question of what you might do that could make you an influence agent. Remember that in Russia the matter has become so trivial that anyone who receives a few Euros is considered an agent. It is not even questioned whether this can be done at all with a few euros.”

 

 

A new addition to laws used as weapons

 

While the proposal is expected to be brought before the parliamentary plenary, the timing is not yet clear. Parliamentary sources indicate that the proposal might be discussed at the plenary soon or wait until the end of the budget talks. Although it is uncertain when the proposal may be ratified, the prevailing expectation is that this law too will be added to the array of laws (e.g. “law on disinformation”) which are kept at hand to be used when needed.

 

According to RSF Turkey representative and bianet media freedom rapporteur Erol Önderoğlu, this proposal will also serve to limit the freedom of the press. 

 

“This much viciousness is unwarranted”

 

Önderoğlu says, “Whatever justification or arguments may be given for the proposal on ‘agents of influence,’ it will serve the aim of silencing critical voices in journalism, similar to the damage wrought by the ‘law on disinformation’ which entered into effect two years ago. He adds, “Reporting on a Nationalist Movement Party (MHP) MP proposing a law for ‘denying resources to the funded media’ makes it clear as day that this proposal targets media that publishes and broadcasts with resources provided by Western organizations. Let’s not fool ourselves with concepts like ‘modern espionage.’ We see these determined efforts as part of attempts at weakening what remains outside 85 percent of the national media, which acts within the boundaries of government discourse. At RSF, our main concern is that this legislation, which contains ambiguous concepts that are not grounded in the law will make journalists open targets through the use of hostile expressions such as ‘espionage.’ This much viciousness against the already impaired multi-vocality of the media in Turkey is unwarranted. This is because free journalism not only serves a transparent society; it is security itself."