The new Turkish law (No. 7242) allows Turkish government authorities, including intelligence and law enforcement agencies, to take convicts and detainees out of prison for up to 15 days. This controversial law, which came into effect on April 15, 2020, applies to inmates who were convicted of terrorism and organized crime charges. The reason behind this controversial change and its possible consequences are critical and worthy to investigate. In order to foresee possible answers to this question, it is necessary to look at the historical background of the AKP regime.
The discourse of universal values and democratization, core principles that were centralized by the AKP administration at the onset of its political life, began to swerve after the Constitutional referendum in 2010, and accelerated in the following of Gezi Park events in May 2013, and the corruption operation in December 2013. The process of derailment from the core values gradually gained momentum and peaked after the questionable coup attempt on July 15, 2015. It can easily be seen that the lawless mayhem of the last six years stamped illegality as a central tenet for the long governing force of the country. Although, AKP’s transition from conservative democracy to chaotic dictatorship was seemingly triggered by its effort to cover its crimes, it has always been an eventuality with such a long reign of power and unchecked authority. Therefore, covering crimes with even more crimes was not so hard for this chaotic regime. So much so that by 2020, all kinds of lawlessness and illegality were institutionalized at the center of the Erdogan regime, and systematic torture has become an ordinary part of the criminal investigations against the opponents.
Although this legislation was interpreted in the Turkish media as “MIT (Turkish National Intelligence Agency) is given the authority to take inmates out of prison” the fact that the clause, “the request of the relevant authority,” was left vague in the text of law shows that “any governmental body” can request any inmate from the prison under the control of the AKP regime. This can only mean one thing; the clause was deliberately written in vague language and an encompassing manner, as opposed to pointing to a single entity or opting for a more limiting clause such as “intelligence units” or “law enforcement units.”
At this point, the question that raises concern is that which agencies or who would take inmates out of prison for two weeks. In seeking the answer, Erdogan regime’s interest towards the jihadist groups in conflict regions and its activities in those regions come to mind at first. If we recollect Erdogan’s alternative army, called SADAT, both for the training it provided to the Radical Islamic jihadist groups in the conflict zones, and for the operations they carried out with the jihadist groups they trained in the conflict zones such as Syria and Libya; it is highly likely that, through this law, they would want to take inmates out of prison for training and use them illegally in short-term operations/actions abroad, or even at homeland. The fact that SADAT and similar entities operate directly under Erdogan and there is no judicial or parliamentary control on them. This increases the concerns. Exploting the new law, Erdogan regime can quickly train and organize radical jihadist groups in the conflict zones.
Even if the issued law is interpreted the way it is presented by the Turkish media, that is, if MIT is given the power to temporarily collect inmates from the prisons, an important question comes up that why would an intelligence agency need to take out an inmate for 15 days when it is already possible to carry out an interview at the prison?
The statement “regarding the crimes committed within the framework of terrorism and organizational activity” in the new law clearly shows that the scope of the law is not limited to terrorism, but may also include organized crime (mafia). However, under normal circumstances, counterterrorism and organized crime investigations are carried out by the Police and the Gendarmerie on behalf of the prosecution, in other words, MIT is not a law enforcement unit and has no authority to conduct a judicial investigation. For what reasons can an intelligence agency take an inmate out of prison and what would be its potential consequences?
The concerns about SADAT are also valid for MIT. Similar to SADAT MIT also has an interest and close relationship with the jihadists in the conflict zones. This interest and close relationship can turn into scandals when it cannot be controlled. For example, when the 2012 MIT (February 7) Crisis and the incident of MIT trucks in 2014 are recalled, it is seen that intelligence units can easily slip into illegal activities if they find a ground. For this, multi-perspective and multi-faceted control mechanisms such as judicial and legislative oversight and accountability applies for intelligence activities only in democratic societies. However, the Erdogan regime wants to use intelligence in its illegal activities in line with its own personal and organizational interests and purposes, as well as other state agencies in its journey towards authoritarianism, and in this context, he has eliminated the checks and balances over the intelligence and introduced legal regulations in order to protect those who are involved in illegal practices.
For example, with the legal regulation No. 6532, which came into force on February 26, 2014, both the jurisdiction of intelligence has expanded and become quite ambiguous. The clause “fulfilling the duties assigned by the Council of Ministers in matters related to external security, counterterrorism, and national security,” written in the first article of this law allows the definition of intelligence to be determined by the current government’s council of ministers (not the parliament). This legal arrangement also brought special protection shields to MIT members and exempted them from judicial control by making it possible for prosecutors to open an investigation against intelligence personnel only by obtaining the approval of the very institution that is being investigated. Article 6 of the legal amendment numbered 6532 is as follows;
“When the Public prosecutors receive any denouncement or complaint regarding the duties and activities of MIT or its members, or when they learn about such a situation, they inform the MIT Undersecretariat. If the MIT Undersecretariat states or certifies that the matter is related to its duties and activities, no further judicial action is taken, and no judicial protection measures are imposed.”
After the questionable coup attempt on July 15, 2015, it is known that Erdogan used intelligence units extensively in his illegal activities and violations of rights carried out against his opponents. In this context, when the claims of the lawyers, bar associations, opposition parliamentarians and the allegations in the social media are taken into consideration, the following points become more clear;
– Torture chambers were established within the police departments,
– Many people were tortured during the detention process in police custody,
– In addition to the police personnel, some intelligence personnel also involved in torture
– A total of 28 people have been kidnapped/lost since 2016,
– The abducted persons were taken to the Special Activities Directorate known as the torture farm of MIT,
– These people have been forced to become confessors to crimes they did not commit under torture.
– Some of the kidnapped people were left in front of the police stations with the physical and mental scars of torture, while others are still not heard of,
Although these allegations were continuously reported by the defense counsels of the accused people and by the bar associations with concrete evidences, all these allegations were ignored by the Erdogan regime. The authorities did not even bother themselves for review or investigation. The requests for the establishment of research commissions, which were given to the parliament by the opposition parliamentarians regarding these torture and abduction claims, were also constantly rejected by the Erdogan administration.
If an intelligence agency, which is not subject to any kind of judicial and parliamentary supervision, and operates outside the control of prosecutors and judges and, most importantly, which has many kidnapping and torture allegations against it, is given the authority to remove any inmate of any kind from prison, this power will lead to more torture incidents, not only in the process of police custody but also during the detention process. It is obvious that it will make the systematic torture more prevalent and lead to severe human rights violations. Beyond that, it will give a sense of legal assurance to those who engage in such inhumane and illegal activities under the veil of official duties.
Although the Erdogan regime passed these laws to protect its personnel who are involved in such inhumane and corrupt practices, these legal amendments violate the spirit of the rule of law and the universal values and won’t be able to protect the personnel that engaged in international crimes and torture and authorities. It should be remembered that Turkish Republic had given so much effort to establish democratic values and reach EU standards and there is no doubt that Turkey will turn back to its core values after the Erdogan regime. When that time comes, such legal obstructions won’t be able to stop the questioning of these unjust and illegal activities that are truly contrary to the spirit of the rule of law.