Crimes against state secrets and espionage regulated in the Turkish Criminal Law in the context of fundamental rights

In today's public life, openness is fundamental, confidentiality is exceptional. In this respect, confidentiality is an exceptional legal way that can be applied for protecting legal interest and obtaining public benefit. Confidentiality emerges as a legal institution in many areas such as private life confidentiality, professional and commercial confidentiality, administrative confidentiality and state confidentiality. State confidentiality, which is one of these cases of confidentiality, is defined as "State Secret" in our law, and shows a number of different features from other types of confidentiality in law. In this respect, after mentioning about confidentiality in law and the ways the concept of confidentiality is discussed in different legal disciplines, revealing the concept of state secret and drawing its boundaries will be tried. While secret, as a concept, is the information that is not allowed to be accessed by people other than the ones who need to know, it becomes necessary to attempt to define the unknown with known legal concepts. In this thesis, not only the types of crimes about state secrets and espionage regulated in the Turkish Criminal Law; but also concepts of state secret and espionage in the context of fundamental rights such as the right to information, freedom of thought and opinion, freedom of press, and the right to a fair trial will be addressed. While trying to establish what should be understood from protected information - from the provision to disclosure or espionage activities -, how it should be determined and how it is determined, the difficulty and necessity of clearly drawing the scope and boundaries of the concept of state secret, which emerges as a standard in the context of limitation of fundamental rights will be emphasized. The ways followed by different legal systems in defining and determining the limits of the concept of state secret, which is one of the reasons for restriction in the exercise of fundamental rights will be indicated, and within this context, the concept of "national security", which is frequently used in defining the information that qualifies as a state secret will be tried to be explained. Apart from presenting the features of the concept of "National Security"; what should be understood from the concept of "Crimes Against the Nation and the State" especially in terms of our law and the boundaries of the concepts of "Security of the State", "Internal or External Political Benefits of the State" will be determined. Considering the difficulty in determining the boundaries of these concepts, the problem created by a type of crime prepared with state secrets in terms of the principle of legality in crime and punishment will be tried to be determined. In addition, together with the introduction of the concepts of state secrets in material terms and state secrets in formal terms in our law, the relationship between the concept of state secret in formal terms and administration as one of the direct consequences of the principle of legality in crime and punishment and the prohibition of creating crime and punishment through administrative transactions will be emphasized. On the other hand, with the acceptance that crimes against state secrets are crimes of danger, revealing the features which are posing danger, that can be considered as a common element in terms of Crimes Against State Secrets and Espionage crimes regulated in the Turkish Criminal Law, will be tried. In terms of danger crimes, whether the action of the perpetrator is suitable to pose a danger on the subject of the crime will be interpreted, and especially while examining the freedom of thought and expression or freedom of press in the context of fundamental rights and the disclosure of confidential information together, the acceptability of these crimes as concrete - not abstract – crimes will be discussed. In the third and last part of the thesis, while the way of organizing crimes against State Secrets and Espionage in the Turkish Criminal Law is introduced, some elements of these crimes will be compared to other foreign laws. Keywords: State secret, state secret in material terms, state secret in formal terms, mosaic secret, espionage, national security, national defense, security of the state, whistleblowing