The purpose of this report is to provide an overview of whistleblowing law in Turkey.
The report is divided into six sections:
- Background and overview;
- Public Sector protection of whistleblowers;
- Witness protection vs protection for whistleblowers;
- International convention and guidelines adopted by Turkey and relating to the protection of whistleblowers;
- Labor Law protection of whistleblowers; and
- Key players, being organizations within Turkey that advocate greater protections for whistleblowers and/or freedom of speech in general.
Each section includes a discussion on the limitations preventing Turkey from developing a comprehensive and effective body of law for the protection of whistleblowers.
At present, there is no specific protection for whistleblowers under Turkish legislation. Laws are general and apply to all citizens in the public and private sectors.
To some extent whistleblowing is based on the right to petition under Article 74(1) of the Constitution that provides that citizens and foreigners have the right to file an application to the competent authorities and Grand National Assembly of Turkey in relation to requests and complaints affecting their own and/or the public’s interest.
Reporting corruption is not a widespread practice in Turkey, nor is it kept confidential. Article 18 of Law No. 3628 states that the identity of a whistleblower cannot be made public without their consent. However, when denunciation is valid, the identity of the whistleblower can be made public upon the request of the prosecuted person.
Every public institution has an internal discipline and inspection mechanism for investigation of reported cases of undue acts such as corruption. Either the discipline chief, discipline committee or the inspectors from the relevant ministry or Prime Ministry conduct the investigation if requested by the relevant authority or by order of the superior authority. Civil Servants reporting cases to their superiors usually use this mechanism.
The internal discipline and auditing mechanisms in public institutions are limited by the following factors:
- There are no special mechanisms for corruption reporting. A few years ago the government announced the establishment of corruption combating units in every public office. This was never implemented.
- There is no direct funding available for internal audit units in public offices. As a result, inspection apparatus’ often are deficient in staff.
- Lack of authority. Internal auditors often lack authority to conduct broad investigations. Instead, authority is limited to the reporting of undue conduct of superiors. Whether internal discipline mechanisms develop into broader investigations will depend on the political willpower of the relevant authority or of the superior.
In Turkey, an issue in defining the term ‘whistleblower’ has lead to confusion as to the distinction between protection for witnesses and protection for whistleblowers.
Witness Protection Law was passed in Turkey in 2008 (Law No. 5726). The law formed part of Turkey’s European Union Harmonization efforts regarding the effective combating of terrorism and organized crime. Under this law, witnesses testifying in trials for all organized crime and/or acts of terrorism, which attach a sentence of between 10 years and life imprisonment, are entitled to witness protection.
The same protection, however, is not offered to whistleblowers with information on organised crime rings or acts of terrorism that will not necessarily wish to or need to appear in a court of law.
There is a view among Turkish officials that the witness-protection law functions like a whistleblower law when a particular situation calls for it. The law does not offer protections, however, to whistleblowers or journalists who publish stories using whistleblowers as confidential sources.
Articles 285 of the Turkish Penal Code (TPC) criminalizes the ‘violation of confidentiality.’ Article 288 of the TPC criminalizes ‘influencing the independence of the judiciary.’ These Articles have been used to prosecute journalists reporting on the same criminal activities that are the subject of witness protection laws.
For example, in 2007, thousands of cases were filed against journalists for claimed violations of the TPC when reporting on the criminal behavior of the Ergenekon (a criminal network accused of various terrorist activities). Turkish newspapers, the Zaman Daily, the Star Daily and the Yeni Saraf are currently involved in up to 185, 150 and 100 court cases respectively in relation to claimed breaches of confidentiality in reporting on the Ergenekon.
At the Parliamentary Justice Commission in May 2O12, it was recommended that harsher penalties of two to five years imprisonment be adopted for journalists who report on secretly taped voice recordings posted online by whistleblowers.
The Council of Europe attaches great importance to whistleblowing, especially when it comes to the protection of journalistic sources, which is linked to the protection of whistleblowers when a disclosure is made to the public. The Council notes, “once the disclosure has been made to the media, the journalist should have the right to protect his or her sources. If a whistleblower cannot make a disclosure internally because he/she reasonably fears that such action would result in internal sanctions or that the internal disclosure would not have the desired effect, and therefore decides to use the media as an external avenue to “blow the whistle”, the he/she should benefit from indirect protection in the form of journalist’s protection of his/her sources.”
The European Court of Human Rights followed this obiter dicta in the case of Tillack v Belgium (2007). The Court upheld the right of a German journalist working for Stern magazine to protect his sources concerning the articles he had published on alleged irregularities in Eurostat and in the European Union’s anti-fraud office, OLAF. The Court found Belgium to be in violation of Article 10 (freedom of expression) of the European Convention on Human Rights because of searches and seizures carried out by the Belgian police at the home and office of the journalist.
The Court stressed that the right of journalists to protect their sources is not a “mere privilege to be granted or taken away.” The Council of Europe suggested that this judgment should “incite lawmakers throughout Europe to reflect on the importance of the media as an external voice for whistleblowers.”
IV.1 United Nations Convention against Corruptions (UN Convention)
On 9 November 2006, Turkey ratified the UN Convention. Pursuant to Article 90 of the Constitution of the Republic of Turkey, duly ratified international conventions have the force of law. Article 33 of the UN Convention calls for the adoption of national legislation for the protection from unjustified treatment of whistleblowers who report to competent authorities, in good faith and on reasonable grounds, any information regarding offences covered by the UN Convention.
IV.2 International Labour Organisation – Convention Concerning Termination at the Initiative of the Employer, no C158 (ILO Convention)
Turkey ratified the ILO convention on 4 January 1995 and it entered into force under Turkish Law on 4 January 1996. Article 5 of the ILO Convention provides that the filing of a complaint or initiation of proceedings against an employer for violation of laws does not constitute valid reasons for dismissal. Accordingly, a whistleblower whose employment is terminated in these circumstances is entitled to challenge that termination before the labor courts in Turkey. Remedies may include compensation and/or reinstatement of employment.
IV.3 Organisation for Economic Co-operation and Development (OECD) Guidelines
Turkey adheres in principle to the OECD – Guidelines for Multinational Enterprises that aims to prohibit multinational enterprises from taking discriminatory action against employees who report to management, in good faith, or as appropriate, to public authorities on practices that contravene law. An OECD report dated 7 December 2007 stated that Turkey should strengthen measures to protect whistleblowers in the public and private sector from discriminatory practices on the part of employers.
Despite ratifying the UN Convention, Turkey has not passed national legislation for the targeted protection of whistleblowers.
Summary of current legislation
Although no regulations focusing directly on whistleblowing have been adopted in Turkey, employees are protected against invalid or unjust dismissal by the following means:
Article 18(3) of the Labor Law states that pursuing an employer through administrative or judicial avenues in order to enforce an employee’s rights or obligations arising from legislation or contract cannot be considered a valid reason for termination. It will only be valid if an employee makes groundless accusations against the employer that affect its dignity or commits a dishonest act against the employer (Article 25(II)(b) of the Labor Law. Thus, where an employer terminates an employment contract for just or valid cause, the employee will benefit from the provision of the Labor Law which protect against invalid or unjust dismissal, provided that he or she:
- acted in genuine good faith and honesty;
- did not act for personal gain;
- had a reasonable belief that the disclosure was substantially true; and
- first raised the relevant facts internally (unless this could not be reasonably expected).
- Article 10 of the Constitution on the equality principle and Article 5 of the Labor Law on the prohibition of discrimination against employees protect employees from discriminatory or derogatory treatment by their employer following the lodging of any factual complaint or accusation. Penalties for violation of these Articles include compensation (capped at a maximum of 4 months salary) plus any other amounts to which he or she is deprived.
- Law no. 4857 states that labor inspectors should keep secret an employee who reports on the professional, economic or commercial state of the workplace during inspection. This reporting may not necessarily involve a corruption related activity.
The above laws indirectly relate to the protection of whistleblowers.
Furthermore, an article entitled ‘Good Practice in whistleblowing Protection Legislation’ issued by the Anti-Corruption Resource Centre states “in principle, a well run organization has an interest to know what potential wrongdoing with the view to correcting it. People are also more likely to report wrongdoings within an organization when there are appropriate and trusted structures in place that offer difference reporting options for individuals and guarantee absolute confidentiality.” The Council found that most multinational enterprises investing in Turkey are increasingly adopting whistleblowing procedures as an integral part of their employment terms and policies. These internal regulations are being adopted in employee handbooks that form integral parts of the employee contract.
Duty of Fidelity
The intersection between whistleblowing and labour law is the employee’s duty of fidelity. The duty of fidelity is considered an ancillary obligation. Ancillary obligations are mainly related to an employee’s conduct with regard to the protection of his or her employer’s interests, and arise either from the labour law or from the rule of good faith regulated by Article 2 of the Civil Law. In accordance with the law, an employee must fulfill his or her ancillary obligations, as well as performing his or her main duties.
The duty of fidelity includes:
- The non-disclosure to third parties of any information of a confidential nature concerning the company’s business of which the employee may have become aware during the course of his or her employment with the company;
- The avoidance of any conduct which may be detrimental to the employer or the workplace;
- The avoidance of commitment to dishonest acts;
- The notification of any misconduct at the workplace to the employer;
- The performance of duties in a diligent manner; and
- The obligation not to compete.
An employee’s confidentiality obligation becomes an issue when trade or business secrets of which the employee is aware include information regarding illegal acts. For example, in the event that an employee becomes aware of malpractice in relation to tax and accounting issues, notification of such malpractice to his or her superiors in the company, the competent authorities outside the company or the media will not be regarded as a violation of his or her confidentiality obligation arising from the employment relationship. Hence, the employee may disclose his or her company’s confidential information in the event that such information constitutes a crime or if the public interest requires such disclosure. In such cases, the public interest prevails over the employer’s interest in maintaining confidentiality.
Labor law in Turkey is where the most protections for whistleblowers are found. However, limiting the scope of whistleblowing protection to disclosures of employees in the private and public sectors results in the greater public not being afforded such protections. This is rationalized by the fact that although members of the public can also experience reprisals if identified as whistleblowers, employees’ require stronger legal protection as the institutional connection to their employer make them particularly vulnerable. However, whistleblowing protection is increasingly recognized as a key factor in promoting a culture of public accountability and integrity and therefore, its scope should reach beyond the context of Labor Law.
In Turkey, the following organisations are the leading think tanks in the area of whistleblowing protections and freedom of speech in general:
The Turkey Journalists Community protects the profession of journalism, its traditions, and the moral principals in media. Also they promote the freedom of speech by ensuring the public has access to true, reliable information and by improving the political conditions for journalists. In addition, they have been organizing training seminars for local media since 1997.
Helsinki Citizens Assembly (HCA) is a non-governmental organization that promotes the philosophy of fundamental rights and freedoms, peace, democracy and pluralism. The HCA goals are to introduce the basic rights and freedoms accepted in international agreements and outlined by universal standards into daily life, to promote peaceful processes for the resolution of problems through mutual understanding dialogue and peace, to improve pluralist democratic bodies and civil society initiatives, to ensure the supremacy of the law and to defend an economic system that promotes the well-being of human life and the environment. It tries to constitute a chain of contact, dialogue and mutual understanding, leading to cooperation and peaceful co-existence.
The Izmir-based Human Rights Agenda Association (HRAA) believes that human rights are values that are above all political ideologies and views. Therefore, it aims to sensitize the public conscience towards human rights violations and issues reports based on universal human rights. HRAA not only deals with long-standing human rights problems, such as torture and freedom of expression, but also operates in the areas of relatively new issues in Turkey such as minority, economic, social, and cultural rights.
Mazlumder defends human rights and freedom while aiding oppressed people. Based in Ankara, the organization maintains 20 offices throughout Turkey. Mazlumder is not a partisan organization. It defends freedom of expression of all political views and thoughts. Moreover, Mazlumder works to eradicate torture, monitors prison conditions, and promotes freedom of thought, conscience, religion, and belief, including freedom to wear head scarves.
The Turkey Parliamentary Monitoring Committee (TUMIKOM), a volunteer-based organization of 30 provincial branches known as Mikoms, was established in 1996 in Mugla, as Turkey’s first parliamentary watchdog group. TUMIKOM organizes monitoring efforts based on the principles of volunteerism, impartiality, accountability, transparency, rule of law, and democracy. In addition, TUMIKOM serves as an umbrella organization dedicated to nonpartisan monitoring of the legislative activities of members of parliament.
The Ankara based Association for Liberal Thinking (ALT) educates the Turkish public on intellectual traditions that embody the heart of the liberal democratic civilization, as well as, engage in activities that promote understanding and acceptance of values of liberty, justice, peace, human rights, the rule of law, and tolerance. It also encourages development of academic research on liberal themes; and contributes to finding effective solutions to Turkey’s political and economic problems. Other aspects that ALT sets and influences are broader political debates so as to contribute to the liberalization of Turkey in economic and political fields. ALT supports the idea of liberty, free market economy, human rights, and liberal democracy.