The Crime of Disclosing Classified Information for Espionage Purposes

The security of states and the protection of their domestic and foreign political interests are ensured through strong legal mechanisms, particularly against the unauthorized disclosure of sensitive and confidential information. The disclosure of prohibited information for political or military espionage purposesis one of the most severely punished crimes under the Turkish Penal Code (TCK). This is because such disclosure jeopardizes not only state security but also international relations, public order, and social stability.

This article will explain the social and legal dimensions of crime by examining the regulations and elements in the Turkish Penal Code, the case law of the European Court of Human Rights, Supreme Court decisions, and current issues experienced in the digital age.

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Legal Basis of the Crime

Article 329 of the Turkish Penal Code states:
“A person who discloses information that should remain confidential for reasons of state security or internal or external political interests shall be punished with imprisonment from fifteen to twenty years.”

This provision is a continuation of the crime of "obtaining prohibited information for espionage purposes" regulated in Article 328 of the Turkish Penal Code. If this obtained confidential information is disclosed to third parties, foreign states, or the public, the more serious crime under Article 329 is committed.

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Elements of the Crime

1. Perpetrator:
Anyone can be the perpetrator of this crime. However, the penalty may be increased if this crime is committed by public officials who have access to state secrets.

2. Subject of the Crime: The subject of the crime is "information that must remain confidential" relating to the security, defense, diplomatic activities, or foreign policy of the state . Confidentiality is defined when the competent authorities determine that disclosing this information would harm national security.

3. Verb:

• Disclosure, release, or sharing of information with third parties through the press, digital media, or any other means of communication.

• The purpose of the statement "political or military espionage .

4. Mental Element:
A crime can only intent . The perpetrator must act knowing that the disclosure will harm state security or be used to the benefit of a foreign power.

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The Crime of Making Statements in Supreme Court Decisions

The Court of Cassation meticulously evaluates the elements of this crime based on the specific circumstances of the case

• 2021/2345 E., 2022/1789 K. , the 16th Criminal Chamber of the Supreme Court of Appeals stated that leaking military base plans to the press, even without espionage intent, constitutes a threat to national security and should therefore be punished severely.

• 2020/4761 E., 2021/3875 K. , the 9th Criminal Chamber of the Court of Cassation acquitted the defendants because the disclosed information did not constitute a "state secret" and was information that could be obtained from publicly available sources.

These precedents demonstrate that not all information is considered "prohibited," and that the level of confidentiality must be proven in a concrete and technical manner.

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Freedom of Expression and State Secrets in Light of ECHR Judgments

The European Court of Human Rights seeks to strike a delicate balance between state secrets and freedom of expression.

• the Stoll v. Switzerland decision, the ECHR stated that the disclosure of diplomatic documents could harm the security and foreign relations of a state, and therefore proportionate restrictions are legitimate.

• The Guja v. Moldova decision emphasized that whistleblowers who disclose information in the public interest should be protected under certain conditions. However, this protection does not apply to disclosures made for espionage purposes.

• the Hadjianastassiou v. Greece decision, it was ruled that the disclosure of military secrets would directly endanger national security, and therefore criminal sanctions were not contrary to Article 10 of the ECHR.

These decisions the importance of distinguishing whether information disclosure is done in the public interest or for espionage purposes .

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Espionage and Information Leaks in the Digital Age

The advancement of technology and the fact that a large amount of information is stored digitally has made the security of state secrets more vulnerable than ever before.

• Cyberattacks, data breaches, and hacker groupshave become the primary tools used to leak state secrets.

• The disclosure of government documents through international platforms like Wikileaks has brought the digital dimension of this crime to the forefront.

For example, the leaking of diplomatic correspondence can lead to crises in international relations. Therefore, it is important that the regulations in the Turkish Penal Code are interpreted to include digital data security.

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Penalties and Sanctions

According to Article 329 of the Turkish Penal Code:

• Anyone who discloses prohibited information for espionage purposes imprisonment for 15 to 20 years .

• The penalties are further increased if the act is committed during wartime or in a way that would seriously harm the military interests of the state.

• If the crime is committed by a public official or a person with access to state secrets, the penalty may be imposed at the maximum level.

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Social Debates and Current Issues

• Freedom of the Press vs. State Security: The classification of certain information disclosed by journalists in the public interest as state secrets has sparked considerable debate.

• Lack of Whistleblower Protection: While individuals disclosing information in the public interest are protected to a degree in European countries, there is no clear legal regulation on this matter in Turkey.

• Digital Security Vulnerabilities: Flaws in government data security systems can make it easier to commit espionage crimes.

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Conclusion and Evaluation

The disclosure of prohibited information for political or military espionage purposes is one of the most serious crimes, directly threatening national security. Preventing this crime requires both an effective legal framework and a sophisticated information security infrastructure.

While Supreme Court rulings emphasize that the level of confidentiality of the information must be clearly defined for the crime to occur, ECHR rulings demonstrate that penalties must be proportionate and applied in a way that does not violate freedom of expression.

The increase in information leaks and the diversification of international espionage activities in the digital age have further increased the importance of this crime. In the future, new regulations will be needed in both national and international law "information security - public interest - freedom of expression" .