‘Influence Agent’ regulation: ‘We may encounter more cases like Osman Kavala’

The Bill on Amendments to Certain Laws, known in the public as the “9th Judicial Package,” has been passed by the Grand National Assembly of Turkey and enacted into law. Criminal law expert Dr. Erdi Yetkin explained the risks that the “Influence Agent” regulation, which appeared on the agenda under the heading “Other activities” in Article 22 of the Judicial Package, will create to 12 Punto point by point.

“THERE ARE EXISTING VIOLATION RULINGS ISSUED AGAINST RUSSIA”

Explaining how the “Influence Agent” regulation is implemented in countries where it has been put into effect, Yetkin began his remarks as follows:

“This issue came to the world's agenda after the regulation in Russia. Subsequently, its recent adoption in Georgia was significant and a controversial issue with the protests in Georgia, but we see the existence of various regulations not only in Eastern Bloc countries or countries that were historically in the Eastern Bloc, but also in Anglo-Saxon countries, for example in the UK, the USA, and Australia. These also need to be divided into two: one is criminal regulations and the other is administrative obligations. For example, we see registration, reporting obligations, or obligations to declare that they are under foreign influence and to operate while reporting if there is an activity in cases where journalists, newspapers, or press organizations receive foreign funding or if there is an activity carried out under foreign influence. Russia, in particular, is accused of exerting pressure on NGOs and the press with regulations under the name of foreign influence, and there are existing violation rulings issued against Russia by the ECHR.”

“RECEIVING FUNDING MAY BE BANNED”

Stating that the issue has two dimensions, Yetkin said, “There are two dimensions: criminal provisions and administrative law provisions. We are currently working on the criminal law dimension. However, as far as I know, it was being discussed recently that an MHP deputy had submitted a legislative proposal for press organizations that receive money from foreign funds to register or disclose this situation, similar to the one in Russia. In other words, if the regulation regarding influence agents passes, I think that a regulation regarding declaring that they are under such foreign influence, submitting reports, or banning the receipt of funding, especially for press organizations or NGOs, similar to those in Russia or similar countries, or in Georgia, could also come as a type of crime in the near future.”

“THERE IS NO PERMISSION REQUIREMENT TO OPEN AN INVESTIGATION”

Touching upon the points of the regulation that cause concern, Yetkin explained the possible dangers by saying, “Of course, expressions such as foreign agent or influence agent do not appear in any of the laws or headings. For example, let's think of a journalist in Turkey. If such an investigation is conducted against them, I am not talking about being convicted, but even if an investigation is conducted against them, it will probably be very difficult for them to carry out their profession or participate in institutional discussions due to this labeling, that is, the labeling as a foreign agent or influence agent. This effect is much more intense in crimes where the political nature is dominant. Therefore, a person will face the danger of being labeled as a foreign influence agent. Let us note that there is no permission requirement to open an investigation. Therefore, we see that the law does not contain a guarantee in this regard either.”

WHY WAS THIS REGULATION NEEDED?

Stating that “what is actually intended with the regulation here is not known very much,” Yetkin said regarding the purpose of the regulation entering the judicial package, “It is said that the National Intelligence Organization made such a request, but it is not known why they made such a request. What gaps were there in practice, in which situations did people go unpunished for not complying with such a norm, and did problems arise in terms of intelligence activities? Therefore, there is a serious problem in determining the purpose here. This situation is already reflected in the discussions. We see neither the government fully stating why it needs this norm nor the opposition opposing concrete dangers. My opinion is that I think the security bureaucracy, in particular, has a demand for such a norm to come to Turkey. I am of the opinion that the ruling party probably made such a regulation because they wanted it, thinking it could be useful in terms of their own political thoughts.”

“COURTS WILL MAKE ARBITRARY EVALUATIONS”

Stating that the regulation has legal deficiencies and problems, Yetkin warned, “When we look at the problems of the norm, the ambiguity of the norm comes first. Concepts mentioned in the norm such as internal and external political interest, state security, strategic interests of a foreign state and organization, and the war effectiveness of the state are ambiguous. It is even such that the explanations in the justification regarding internal and external political interests are inconsistent even with the explanations in the justification of Article 326 of the TCK, which is another espionage crime. Now, if such ambiguous concepts are used, courts will be forced to make arbitrary evaluations that are not legal, not legally clear, and political. Even if the adopted norm is applied with complete good faith, differences in application will definitely occur.”

“IT DOES NOT CONTAIN A GUARANTEE REGARDING FREEDOMS”

Touching upon another problem, Yetkin stated, “We have a crime of committing a crime on behalf of an organization. A person who commits a crime on behalf of an organization without being a member of the organization is included in the 6th paragraph of Article 220 of the TCK. There are very serious discussions within the framework of this paragraph. In particular, there are violation rulings issued by the ECHR, and furthermore, there are rulings by the Constitutional Court that there is a need for legality and that the requirement has not been met. Afterwards, we see that this norm was canceled by the Constitutional Court. Subsequently, our legislative body went and regulated the regulation once again almost at the same time. Within the framework of this norm, in what situation a crime will have been committed on behalf of an organization, or it does not contain a guarantee against problems in terms of security and freedoms.”

“WE MAY ENCOUNTER MORE CASES LIKE KAVALA”

Explaining that many concepts in the regulation have not been concretized, Yetkin concluded his words by saying, “Even if this is an espionage regulation, even if it is regulated as a crime of committing a crime, it should have been limited. A concreteness regarding the relationship with a foreign power must be sought. When we look at the norm, we see that concreteness is provided only by instruction. Apart from this, we see that there is no condition such as assignment, agreement, obtaining benefits, cooperation, or active participation of a foreign power in the process. In particular, this concreteness was pointed out in the justification of the British regulation. Again, in the crime called treason in Austria, cooperation with foreigners in the preparation of the crime is mentioned in the crime regarding the preparation of treason. However, there is no such concreteness in the draft regulation in Turkey. The danger of this situation is here; for example, if you have committed a crime related to freedom of expression, the way for you to be punished for this crime as well may be opened. A person will be able to be convicted both for the crime they committed and for this influence agency. There is no limitation on this. For example, the Osman Kavala case is known to everyone. We may now encounter more cases like Osman Kavala.”