Stop Police and Judicial Cooperation with the Turkish Republic!

Press release, 26.11.2019

 

We call for the immediate Stop of Police and Judicial Cooperation with the Turkish Republic!

Turkey’s recent history has been marked by the destruction of internal standards of the rule of law and external aggression and war crimes contrary to international law. Neither the bombing of its own civilian population in 2015 and 2016 nor the transformation of the Turkish state into a presidential authoritarian regime in subsequent years resulted in a decisive reaction from our Governments. Neither the dismissal of more than one hundred thousand civil servants, the imprisonment of hundreds of journalists and lawyers, the draconian persecution and punishment of those who exercised their democratic rights, election manipulations, nor the non-recognition of election results Erdoğan did not like, as well as the attack on the Syrian-Kurdish region Afrin, which violated international law, were grounds for our Governments to question the cooperation with the Erdoğan regime. An unspeakable reason for this silence is the alliance formed with Erdoğan to prevent the further migration of refugees to core Europe.

In view of the current events in Northern Syria, we demand from our Governments to finally draw the long overdue consequences given the violations of human rights and international law by the Turkish authoritarian regime.

Athens-based lawyer Yiota Massouridou of AED-EDL explains: »The Turkish state has openly justified its aggression against the North-Syrian Kurds, which is contrary to international law, with the aim of exchanging the current population. A state which propagates ethnic ›cleansing‹, in which fundamental civil and human rights do not apply, in which arbitrariness prevails and which commits crimes against international law must not be treated as a partner by any European government«.

We demand:

  • the immediate cessation of police and judicial cooperation with Turkey
  • the termination of the so-called refugee deal and
  • the revocation of any powers of persecution in State security proceedingsrelating to Turkey. The Turkish state in its current constitution can neither be a partner in refugee policy nor an object of protection under criminal law.

In view of the political persecution of any opposition, the violent oppression of the Kurdish minority and the obvious cooperation of the Turkish state with terrorist organizations such as the Islamic State, police and judicial cooperation with the Republic of Turkey bears the real danger of the involvement of European authorities in oppression, torture and state terrorism.

Berlin-based Lawyer Stefan Kuhn of the Organisationsbüro der Deutschen Strafverteidigervereinigungen clarifies: »Only by strictly refraining from judicial and police cooperation with Turkish authorities, it can be ruled out that repressive measures, torture and unjust judgments are carried out in Turkey through information provided by any European authority. Conversely, courts and authorities in EU member states may not use any information suspected of having been obtained by methods contrary to the rule of law. The EU Governments must not support a criminal regime«.

Avocats Européen Démocrates / European Democratic Lawyers (AED/EDL)
European Association of Lawyers for Democracy & World Human Rights (ELDH)  Komitee für Grundrechte und Demokratie e.V.
Organisationsbüro der Strafverteidigervereinigungen
Republikanischer Anwältinnen- und Anwälteverein e.V. (RAV)
Vereinigung Demokratischer Juristinnen und Juristen e.V. (VDJ)

 

Kontakt:

Republikanischer Anwältinnen- und Anwälteverein Geschäftsstelle
kontakt@rav.de
www.rav.de

Tel. +49 (0)30 41 72 35 55

Statement on the Judgement of the Spanish Supreme Court on the Catalan Referendum Case

in English:

Berlin, on the 23rd of November 2019

 

The AED was part of the dozens of international organizations monitoring the Trial on the Catalan Referendum Case in Madrid. In a statement this February we warned of the lack of procedural guarantees and the danger of violating human rights if there were a conviction.

On Monday, the 14th of October, the Spanish Supreme Court issued an unprecedented ruling in Europe, condemning the Catalan political and social leaders to a total of 100 years in prison. In this sentence, peaceful demonstrations or peaceful resistance represented the crime of sedition (“public uprising and tumultuary“). This sentence clearly restricts the exercise of freedom of expression, the right to peaceful assembly, as well as public political participation.

The Court dropped the State Prosecutor’s charges of rebellion, but issued severe sentences for the crimes of sedition, embezzlement of public funds, and disobedience, in the context of the Referendum on the Independence of Catalonia, on the 1st of October 2017.

The AED recalls that the referendum was a non-violent act of civil disobedience, organized peacefully to allow the voices of many Catalans to be heard. The only violence on the 1st October was perpetrated by the Spanish Police, in actions of disproportionate violence.

AED considers:

– These have been political proceedings, putting people on trial for their political ideas.

– The prison sentences imposed represent a historical error, which, far from solving the problem, worsens it.

– The powers of the Spanish Kingdom have done nothing to resolve this situation, which should have been solved politically through dialogue, and not through the involvement of the judicial power and therefore with the intervention of the State Prosecutor’s Office, directly appointed by the Spanish Government.

– Far from providing any solution, the verdict against the political prisoners shifts the conflict to the European arena and the international courts of Justice, which will not solve the problem either. If the international community, particularly the European Union, does not play an active role in helping resolving the conflict, an international call for dialogue and a peaceful and democratic solution is needed.

AED condemns the violation of Human Rights (civil and political rights listed and recognized by Treaties and Conventions dully signed by the Kingdom of Spain), the violation of criminal and procedural principles, as well as the criminal law principles of fragmentation, proportionality and last resort, by the criminal proceedings and its sentence of last 14th of October 2019.

The grave violation of the abovementioned rights and principles in this sentence and its logic, renders it impossible to analyze from a strictly legal point of view. Any earnest attempt at interpreting this sentence based on technical and legal concepts, such as sedition, uprising, violence or fundamental right becomes partially unsuccessful. The reason is because it is an ideological resolution aimed at replacing the political solution that is needed in the conflict in Catalonia.

AED asks the executive powers of both the Spanish and Catalan governments to seek through dialogue and compromise to end the criminal response to the underlying political problem, to put an end to the repression by police, to free the prisoners and bid the safe return of the exiles and, instead, finally seek to start a negotiation to find a political solution to the conflict based on dialogue and respect.

 

in French:

Motion sur l’arrêt de la Cour suprême espagnole sur l’affaire du référendum catalan

Berlin, le 23 novembre 2019

L’AED a participé avec dizaines d’organisations internationales dans l’observation du procès sur l’affaire du référendum catalan. Dans une déclaration faite en février dernier nous avons mis en garde contre l’absence de garanties procédurales et le risque de bafouer les droits de l’homme des accusés en cas de condamnation.

Lundi 14 octobre, la Cour suprême espagnole a rendu un arrêt sans précédent en Europe, condamnant les dirigeants politiques et sociaux catalans à 100 ans de prison au total. Dans cette arrêt, les manifestations pacifiques ou la résistance pacifique représentaient le crime de sédition (“soulèvement public et tumulte”). Cette phrase restreint clairement l’exercice de la liberté d’expression, le droit de réunion pacifique, ainsi que la participation politique publique.

La Cour a abandonné les accusations de rébellion portées par le Procureur de la République, mais a prononcé des peines sévères pour les crimes de sédition, de détournement de fonds publics et de désobéissance dans le cadre du référendum sur l’indépendance de la Catalogne, le 1er octobre 2017.

L’AED rappelle que le référendum était un acte non violent de désobéissance civile, organisé pacifiquement pour permettre à de nombreux Catalans de faire entendre leur voix. La seule violence du 1er octobre a été perpétrée par la police espagnole, dans des actes de violence disproportionnée.

L’AED observe que

  • Il s’agit de procédures politiques, de poursuites judiciaires contre des personnes pour leurs idées politiques.
  • Les peines d’emprisonnement imposées représentent une erreur historique qui, loin de résoudre le problème, l’aggrave.
  • Les pouvoirs du Royaume d’Espagne n’ont rien fait pour résoudre cette situation, qui aurait dû être résolue politiquement par le dialogue, et non par la participation du pouvoir judiciaire et donc par l’intervention du Procureur, directement nommé par le gouvernement espagnol.
  • Loin d’apporter une solution, le verdict contre les prisonniers politiques déplace le conflit vers l’arène européenne et les tribunaux internationaux de justice, ce qui ne résoudra pas non plus le problème. Si la communauté internationale, en particulier l’Union européenne, ne joue pas un rôle actif dans la résolution du conflit, un appel international au dialogue et à une solution pacifique et démocratique est nécessaire.

 

L’AED condamne la violation des Droits de l’Homme (droits civils et politiques énumérés et reconnus par les Traités et Conventions dûment signés par le Royaume d’Espagne), la violation des principes pénaux et procéduraux, ainsi que les principes de fragmentation, de proportionnalité et de dernier recours du droit pénal, par cette procédure pénale et l’arrêt du 14 octobre 2019.

La violation grave des droits et principes susmentionnés dans cette phrase et sa logique rendent impossible une analyse d’un point de vue strictement juridique. Toute tentative sérieuse d’interprétation de cette phrase fondée sur des concepts techniques et juridiques, tels que la sédition, le soulèvement, la violence ou les droits fondamentaux, échoue partiellement. La raison en est qu’il s’agit d’une résolution idéologique visant à remplacer la solution politique nécessaire dans le conflit en Catalogne.

L’AED demande aux pouvoirs exécutifs des gouvernements espagnol et catalan de chercher, par le dialogue et le compromis, à mettre fin à la réponse criminelle au problème politique sous-jacent, à mettre fin à la répression policière, à libérer les prisonniers et à demander le retour des exilés en toute sécurité et, enfin, à entamer une négociation pour trouver une solution politique au conflit basée sur le dialogue et le respect.

 

 

 

European Fact-finding mission to clarify the circumstances leading to the conviction of 18 Turkish lawyers

A group of 15 lawyers from 7 European countries met in Istanbul from 13 till 15 October 2019 for a fact-finding mission to clarify the legal circumstances that led to the conviction of 18 Turkish lawyers by the 37th High Criminal Court in March of this year, resulting in long prison sentences.

There are currently two mass trials in Turkey against members of the Turkish lawyers’ organisation ÇHD Çagdas Hukukçular Dernegi (Progressive Lawyers Association). In the first trıal, which opened in 2013, 22 lawyers are accused (CHD I proceedings). In the second, which was opened in autumn 2018, 20 lawyers have been accused (CHD II proceedings). Eight of the lawyers accused in both cases are identical, with the same accusation of being a member of a terrorist group. In the second trial in March 2019, 18 defendants were sentenced to between 3 and 18 years and 9 month imprisonment.  The chairman of the ÇHD was sentenced to 11 years and 3 months. All lawyers were convicted for activities connected with their professional functions and were identified with their clients’ causes. Istanbul Regional Court has rejected the appeal without an oral hearing. All of them will seize the Supreme Court.

The European lawyers come from Belgium, Catalonia/Spain, Greece, Germany, France, UK, Italy and Austria. They represent, among others, two international association of lawyers, two European lawyers’ organisations, the European umbrella association of bar associations, various national and regional bar associations and lawyers’ organisations.

Most of the European lawyers have already participated as observers in the mass trials of lawyers in Turkey and other politically motivated proceedings. Their main focus was on the question of whether Turkish and European law was violated in the proceedings. The results of these observations were recorded in reports.

The observations of the two CHD trials as well as numerous other politically motivated trials in Turkey, raised serious concerns about the respect for the rights of the accused and the defence lawyers. This was particularly the case with the 37th Heavy Criminal Court in Istanbul. Among other cases, it was in charge of the proceedings against Selahattin Demirtaş (one of the two HDP presidents), Canan Kaftancioglu (the Istanbul CHP president), Ahmet Altan (writer and journalist), Şebnem Korur Fincancı (the president of the Human Rights Foundation of Turkey and one of the academics for peace), İhsan Eliaçık (theologian and author).

During their stay in Istanbul, the European lawyers held talks with the defence lawyers of the 18 Turkish lawyers convicted, with 4 lawyers imprisoned in Silivri, including the chairman of the Turkish lawyers’ organisation CHD, Selçuk KOZAGAÇLI, with defence lawyers from other politically motivated trials before the 37th High Criminal Court (see above), with the President of the Istanbul Bar Association, and with members of the Turkish Parliament.

They have also examined the question, taking into account the reasons for the judgement,

  • the extent to which the independence of the court was respected in the proceedings
  • whether the principle that no one should be tried twice for the same offence has been respected (ne bis in idem)
  • whether the principles of a fair trial applicable under Turkish and European law have been respected
  • whether the evidence satisfied the legal requirements

Following their visit, the observers will record the results of their visit in a report, draw the necessary legal conclusions and ask the Turkish Minister of Justice for an interview to present the results of their visit and their conclusions.

Represented organisations:

  • ELDH – European Association of Lawyers for Democracy and World Human Rights
  • AED-EDL – European Democratic Lawyers
  • The foundation The Day of the Endangered Lawyer
  • IADL – International Association of Democratic Lawyers
  • Progress Lawyers Network
  • Giuristi Democratici
  • CCBE The Council of Bars and Law Societies of Europe
  • French National Bar Council
  • OIAD – Observatoire International des Avocats (The International Observatory of Endangered Lawyers)
  • Unione Camere Penali Italiane
  • Consiglio Nazionale Forense (Italian National Bar Association) .
  • DSF AS – Défense Sans frontière – Avocats Solidaires
  • UIA (International Association of Lawyers);
  • OBFG/Avocats.be (Association of French speaking Bars of Belgium)
  • Paris Bar Association
  • Athens Bar Association
  • Barcelona Bar Association
  • Berlin Bar Association
  • Brussels (French-speaking) Bar Association
  • Brussels (Dutch-speaking) Bar Association (NAOB)
  • Liège Bar Association
  • Vienna Bar Association

 

This is a link from the web site of Pir News Agensa which participated the press statament (only in Turkish) It includes the video recording of the conference.

No to the aggression of the people of North-East Syria (Rojava)

The AED-EDL expresses its firm condemnation of Turkish military
operations aiming at the invasion of Northern Syria-Rojava.

This invasion has the sole purpose of putting an end to the experience
of the North-East Syrian Democratic Autonomous Administration, and will
cause suffering and mourning primarily in the civilian population.

The Autonomous Administration was born of the common struggle of the
people of North-East Syria, in all their ethnic and religious components
(not only Kurds but also Arabs, Armenians, Turkmen, Chechens, Yazidi,
Alevi, Muslims, Christians) against ISIS while experimenting a new model
of real democratic coexistence.

The invasion of the Turkish troops with the consent of the American
President, aims to annihilate this political project while terrorizing
and massacring, not only those who valiantly fought and beat the ISIS
but also the civilian population.

This invasion risks returning the area to a reconstitution of the
Islamic State.

Realpolitik cannot justify the inertia towards this crime of countries
that proclaim themselves democratic.

We strongly ask that the European Governments:
– Condemn the aggression of the people living in this region: Kurds,
Arabs, Armenians, Turkmen, Chechens, Yazidi, Alevi, Muslims, Christians
– Impose with immediate effect a ban on arms trade with Turkey

As peace and justice are under threat as result of this military
operation, we demand:
– the immediate suspension of the EU-Turkey agreement, because Turkey is
not a safe third country;
– the resettlement of refugees from Turkey to Europe

We express our solidarity with our Kurdish and Turkish colleagues whose
working and living conditions will be even worse in a state of war. We
also want to show our solidarity to all the Turkish citizens who in
spite of the new wave of repression, protest against this military
aggression. Furthermore, we express our solidarity to the people of the
region, asking from now for an international investigation of the facts.

Amsterdam, Athens, Barcelona, Berlin, Brussels, Colmar, Madrid, Milan,
Paris, Rome, Toulouse, Turin….2019

International Statement of Solidarity

4 October 2019 – We, the undersigned organizations, are deeply shocked by the brutal killing of our Dutch colleague Derk Wiersum. We extend our deepest condolences to Mr. Wiersum’s family, friends, colleagues and all others affected by his death.

Mr. Wiersum, a well-respected lawyer and deputy judge, was shot in broad daylight right outside his house in Amsterdam in the early morning of 18 September 2019. He was representing a crown witness in the so-called Marengo-trial, a high-profile criminal case against members of an organization accused of several murders and attempted murders in the last couple of years. Although the events are still being investigated, it is assumed and highly likely that the death of Mr. Wiersum is related to his work as a lawyer.

This killing of a lawyer, apparently in connection with his work, raises serious concerns for the safety of lawyers and poses a threat to the proper functioning of the rule of law and the adequate protection of rights, including the right to remedies and fair trial.

Lawyers, as well as judges and prosecutors, should be able to do their work freely and independently. The UN Basic Principles on the Role of Lawyers specify that “[w]here the security of lawyers is threatened as a result of discharging their functions, they shall be adequately safeguarded by the authorities” (principle 17).

We welcome the prompt and public condemnation of this crime and the immediate measures taken by the Dutch authorities to initiate an investigation, which should lead to the identification and prosecution of the perpetrators. We also welcome that measures were taken promptly and immediately to protect lawyers and all others who need protection in the Marengo-case. We expect that the Dutch authorities will do everything in their power to ensure that lawyers can do their work safely, freely, and independently in all circumstances.

We stand in solidarity with all colleague-lawyers, judges and prosecutors in the Netherlands, who are at risk for simply doing their job.

Organizations

 

Download the press statement here

 

DECLARATION

Haarlem, September 18, 2019

 

The Board and the Coordinator of the Foundation Day of the Endangered Lawyer are deeply shocked by the horrifying murder attack this morning in Amsterdam on the human rights lawyer Derk Wiersum, based in Amsterdam, the Netherlands. Our thoughts are with his family members and friends.

 

Our Foundation notes that this murder is also an attack on the State of Law and the Rule of Law. We wonder how the protection or the safety of this very fine colleague was taken care of by the State, especially because he had been threatened recently as a lawyer in the ‘crown witness case’.

We wonder how it is possible that the fact that our wonderful colleague gave legal aid can lead to this murder attack?

The United Nations principles on the role of lawyers not only strongly condemn all attacks on lawyers who perform their professional duty, but also urge states to guarantee the safety of lawyers and take all necessary measures to reach that goal. Furthermore, we see the attack on our colleague as very inhumane and urge the Dutch government to start a thorough investigation to those who ordered and committed this murder.

 

THE PHILIPPINES: ATTACKS AGAINST LAWYERS ESCALATING

Texte en français

17 September 2019

We, the undersigned organizations, lawyers, and members of the legal profession, express deep concern over the increasing attacks against lawyers in the Philippines and the oppressive working environment they face since the start of President Duterte’s administration. We call on the Duterte Government to adequately protect the safety and independence of lawyers and end the culture of impunity in which these attacks occur.

Extrajudicial killings and harassment of lawyers

Since President Duterte took office on June 30, 2016, the number and intensity of attacks against lawyers have increased significantly. At least 41 lawyers and prosecutors were killed between July 2016 and 5 September 2019, including 24 practicing lawyers. Lawyers are also harassed and intimidated. They are subjected to (death) threats, surveillance, labelling, and other forms of attacks. In addition, at least five judges and retired judges have been murdered since July 2016, bringing the total number of jurists extrajudicially killed in the Philippines to at least 46 in the same period. Eight jurists survived attacks on their life.

Lawyers at risk

Most killings and attacks of lawyers took place as a result of discharging professional duties or are believed to be otherwise work-related. Especially at risk are lawyers representing people accused of terrorist or drug related crimes, or government critics, such as journalists, political opposition leaders, and human rights defenders. Lawyers providing legal representation in high-profile cases impacting established interests, such as land reform, or lawyers taking part in public discussion about human rights issues, also face reprisals.

Grave implications of threats and labelling

United Nations High Commissioner for Human Rights, Michelle Bachelet, recently noted that senior officials of the Government of the Philippines have threatened lawyers and others who have spoken out against the administration’s policies, and she added that this “creates a very real risk of violence against them, and undermines rule of law, as well as the right to freedom expression”.

Prior to being attacked, some lawyers were labelled as “communist” or “terrorist” by state agents. The practice of labelling (i.e. classifying persons as “enemies of the state” or otherwise) combined with the culture of impunity was identified by national and international fact-finding missions as one of the main root causes of extrajudicial killings in the Philippines in the past and continues unabated.

Sharp deterioration of human rights

The attacks against lawyers, prosecutors and members of the judiciary and the extrajudicial killings of other human rights defenders in the Philippines during the past three years have occurred within the context of the so-called war on drugs and are being carried out across the country in an apparent climate of institutional impunity.

Concerned with the sharp deterioration of the human rights situation, eleven UN human rights experts, in a 7 June 2019 press release, called on the UN Human Rights Council to establish an independent investigation into human rights violations committed in the Philippines. “

Culture of Impunity

The UN experts also noted that “the Government has shown no indication that they will step up to fulfil their obligation to conduct prompt and full investigations into these cases, and to hold perpetrators accountable in order to do justice for victims and to prevent reoccurrence

Consequences

The attacks against and extra-judicial killings of lawyers and the impunity shielding perpetrators impair the ability of lawyers to provide effective legal representation, make lawyers increasingly wary of working on sensitive cases, and consequently severely undermine the proper functioning of the rule of law and the adequate protection of rights, including the right to remedies and fair trial.

International obligations

According to the United Nations Basic Principles on the Role of Lawyers (Basic Principles), States should ensure that all persons within their jurisdiction have effective and equal access to lawyers of their own choosing, and that lawyers are able to perform their professional functions without intimidation, hindrance, harassment or improper interference. The Basic Principles require that lawyers are adequately protected when their security is threatened because of carrying out their legitimate professional duties, and not be identified with their clients or their clients’ causes. The Basic Principles affirm that lawyers, like other citizens, are entitled to freedom of expression and assembly. The duty to respect and guarantee these freedoms forms an integral part of the Philippines’ international legal obligations under the International Covenant on Civil and Political Rights.

Recommendations

In view of the above, the undersigned organizations and individuals urge the Government of the Philippines to:

  1. Investigate promptly, effectively, thoroughly and independently all extrajudicial killings and attacks against lawyers, and other jurists, with the aim of identifying those responsible and bringing them to justice in proceedings that respect international fair trial standards;
  1. Take all reasonable measures to guarantee the safety and physical integrity of lawyers, including the provision of adequate protection measures, in consultation with the persons concerned;
  2. Consistently condemn all forms of threats and attacks against lawyers publicly, at all political levels and in strong terms; and,
  3. Fully comply with and create awareness about the core values underlying the legal profession, amongst others by bringing the UN Basic Principles on the Role of Lawyers to the attention of relevant stakeholders, especially members of the executive, police, and the military.

Download the press statement

PHILIPPINES: ESCALADE DES ATTAQUES CONTRE LES AVOCATS

17 Septembre 2019 –

Nous, les organisations, avocats et membres des professions juridiques soussignés, exprimons notre profonde préoccupation face aux attaques croissantes contre les avocats aux Philippines et à l’environnement de travail oppressif auquel ils sont confrontés depuis le début de l’administration du président Duterte. Nous appelons le gouvernement Duterte à protéger de manière adéquate la sécurité et l’indépendance des avocats et à mettre fin à la culture d’impunité dans laquelle ces attaques se produisent.

Assassinats extrajudiciaires et harcèlement d’avocats

Depuis l’entrée en fonction du président Duterte le 30 juin 2016, le nombre et l’intensité des attaques à l’encontre d’avocats ont considérablement augmenté. Au moins 40 avocats et procureurs ont été tués entre juillet 2016 et le 29 juillet 2019, dont 24 avocats en exercice. Les avocats sont également harcelés et intimidés. Ils sont soumis à des menaces (de mort), à une surveillance, à un étiquetage et à d’autres formes d’attaques. En outre, au moins cinq juges et juges à la retraite ont été assassinés depuis juillet 2016, ce qui porte le nombre total de professionnels du droit tués de manière extrajudiciaire aux Philippines à au moins 46 au cours de la même période. Sept juristes ont survécu à des attaques visant leur vie.

Les avocats en danger

La plupart des assassinats et des attaques contre les avocats ont eu lieu dans le cadre de l’exercice de leurs fonctions professionnelles ou sont apparemment liés à leur profession. Les avocats représentant des personnes accusées de crimes liés au terrorisme ou à la drogue, ou critiquant la politique ou le comportement du gouvernement, tels que les journalistes, les dirigeants de l’opposition politique et les défenseurs des droits de l’homme sont particulièrement exposés. Les avocats assurant une représentation juridique dans des affaires très médiatisées ayant un impact sur des intérêts établis, tels que la réforme agraire, ou les avocats prenant part au débat public sur des questions relatives aux droits de l’homme, sont également victimes de représailles.

Graves implications des menaces et de l’étiquetage

La Haut-Commissaire des Nations Unies aux droits de l’homme, Michelle Bachelet, a récemment noté que de hauts responsables du gouvernement philippin avaient menacé des avocats et d’autres personnes qui s’étaient exprimés contre les politiques de l’administration. Elle a ajouté que cela “crée un risque très réel de violence contre eux et une atteinte à l’État de droit, ainsi qu’au droit à la liberté d’expression ».

Avant d’être agressés, certains avocats ont été qualifiés de « communistes » ou de
« terroristes » par des agents de l’État. La pratique de l’étiquetage (c’est-à-dire la classification des personnes comme « ennemi de l’État » ou similaire) combinée à la culture de l’impunité a été identifiée par les missions d’enquête nationales et internationales comme l’une des principales causes des exécutions extrajudiciaires perpétrées aux Philippines dans le passé et qui continue à exister sans relâche.

Forte détérioration des droits de l’homme

Les attaques contre des avocats, ainsi que des procureurs et des membres du système judiciaire, ainsi que l’assassinat extrajudiciaire d’autres défenseurs des droits de l’homme aux Philippines au cours des trois dernières années se sont déroulés dans le cadre de la

prétendue guerre contre la drogue lancée à travers le pays dans un climat apparent d’impunité institutionnelle.

Préoccupés par la forte détérioration de la situation des droits de l’homme, onze experts des droits de l’homme des Nations Unies ont, dans un communiqué de presse du 7 juin 2019, exhorté le Conseil des droits de l’homme des Nations Unies à ouvrir une enquête indépendante sur les violations des droits de l’homme commises aux Philippines. « Au lieu d’ [le gouvernement] envoyer un message fort que ces assassinats et ce harcèlement sont inacceptables, il y a une rhétorique croissante contre les voix indépendantes dans le pays et des actes d’intimidation et d’attaques continues contre des voix qui critiquent le gouvernement, y compris les médias indépendants, les défenseurs de droits de l’homme, avocats et journalistes “, ont déclaré les experts.

Culture de l’impunité

Les experts des Nations Unies ont également noté que « le gouvernement n’a montré aucun signe indiquant qu’il s’acquitterait de son obligation de mener rapidement des enquêtes approfondies sur ces affaires et de tenir les auteurs présumés responsables afin de rendre justice aux victimes et d’éviter que les violations ne se reproduisent. »

Conséquences

Les attaques et les exécutions extrajudiciaires d’avocats et l’impunité qui protège les auteurs compromettent la capacité des avocats de représenter efficacement leurs clients, ce qui rend les avocats moins enclins à travailler sur des affaires délicates et ce qui porte donc gravement atteinte au bon fonctionnement de l’État de droit, au respect du droit et à la protection adéquate des droits, y compris le droit à un recours et à un procès équitable.

Obligations internationales

Selon les Principes de base des Nations Unies relatifs au rôle du barreau (Principes de base), les États devraient veiller à ce que toutes les personnes relevant de leur juridiction aient un accès effectif et égal aux avocats de leur choix et à ce que ces derniers puissent exercer leurs fonctions professionnelles sans intimidation, entrave, harcèlement ou ingérence indue. Les Principes de base exigent que les avocats soient protégés de manière adéquate lorsque leur sécurité est menacée en raison de l’exercice de leurs obligations professionnelles légitimes, et ne soient pas identifiés à leurs clients ou aux causes de leurs clients. Les Principes de base affirment que les avocats, comme les autres citoyens, ont droit à la liberté d’expression et de réunion. L’obligation de respecter et de garantir ces libertés fait partie intégrante des obligations juridiques internationales des Philippines en vertu du Pacte international relatif aux droits civils et politiques.

Recommandations

Au vu de ce qui précède, les organisations et personnes soussignées exhortent le gouvernement des Philippines à :

  • Enquêter rapidement, efficacement, de manière approfondie et indépendante sur tous les meurtres extrajudiciaires et les attaques contre des avocats et autres juristes, dans le but d’identifier les responsables et de les traduire en justice dans le cadre d’une procédure respectant les normes internationales en matière d’équité des procès.
  • Prendre toutes les mesures raisonnables pour garantir la sécurité et l’intégrité physique des avocats, y compris par la mise en place de mesures de protection appropriées, en consultation avec les personnes concernées.
  • Condamner systématiquement et publiquement toutes les formes de menaces et d’attaques dirigées contre les avocats, à tous les niveaux politiques et avec force, et
  • Respecter pleinement les valeurs fondamentales de la profession juridique et créer une sensibilisation, notamment en attirant l’attention des parties prenantes concernées, en particulier des membres de l’exécutif, de la police et de l’armée, sur les Principes de base des Nations Unies sur le rôle du barreau.

Sea Watch 3 and European Rights adrift

The grave case of the ship Sea Watch 3, which has been denied access to Italian ports after rescuing 42 migrants at sea and waiting for more than 14 days between Libya and Sicily for more than 14 days, is the case of fundmental rights in Europe.

Maritime laws requires the rescue of those in danger at sea through the identification of a place of safety.

 

The European Convention on Human Rights prohibits collective expulsions and inhuman and degrading treatment.

 

The Convention on the status of refugees imposes the principle of non-refoulement to a place where the person would be at risk of persecution.

 

The Universal Declaration of Human Rights states that everyone has the right to leave a country.

All these international treaties and conventions are violated for political interest.

In this case as in many other cases, people, at risk of dying at sea, escaping from war and Libyan concentration camps, are used as pawns in political negotiations and as instruments of propaganda.

By denying the landing in the port of Lampedusa, the Italian government violates these conventions and the rights of people; turning to the other side, the European governments and the European Union itself violate those conventions and the rights of those people.

The European Court of Human Rights, by not applying precautionary measures, is not justifying this situation,it is merely saying that it was not certain if  Italian jurisdiction was applicable because the Sea Watch 3 was still in international waters. Furthermore it decided there was no imminent danger to the lives of the people. Whether this decision is correct or not, it does not state that it is permissible to leave them at sea. Nor does it say that the Italian Minister of the Interior is right when he states that Lybia is a safe haven. The reports of all international organizations and UNHCR have long established that migrants in Libya are locked up in real concentration camps, tortured, mistreated, killed.

One day there will be a Nuremberg of the Sea, which will condemn those who today refused to help and legitimized torture in Libya, but we can not wait for this day.

As lawyers and as jurists, we strongly demand that human rights, the principles of international law and law be restored as soon as possible in Europe and in each of its Member States.

We demand

 

that Sea Watch and all ships working to save lives from shipwrecks and avoiding that migrants return  to Libya,

 

that shipwrecked people be allowed to go ashore and seek protection in Europe,

 

that it be recognised that those who save migrants at sea obey the rules of the natural right of solidarity, and  have committed no crime.

 

Il caso della Sea Watch 3 e la deriva dei diritti in Europa

 

Il gravissimo caso della nave Sea Watch 3, da oltre 14 giorni in mare tra la Libia e la Sicilia dopo aver salvato 42 migranti, alla quale è negato l’approdo nei porti italiani, ci interroga sul rispetto dei diritti fondamentali in Europa.

Il diritto del mare che obbliga al salvataggio di chi è in pericolo in mare e all’individuazione il più preso possibile di un place of safety, la Convenzione Europea dei Diritti dell’Uomo che vieta le espulsioni collettive e i trattamenti inumani e degradanti, la Convenzione sullo status dei rifugiati che impone il principio di non refoulement verso un luogo ove la persona sarebbe a rischio di persecuzione, la stessa Dichiarazione Universale dei Diritti dell’Uomo che sancisce che ogni individuo ha diritto a lasciare qualunque paese, sono calpestate per interessi politici e propagandistici.

In questo come in molti altri casi persone che rischiavano di morire in mare, fuggite dalla guerra e dai campi di concentramento libici, sono usate come pedine di trattative politiche e come strumenti di propaganda.

Negando l’approdo nel porto di Lampedusa il Governo italiano viola quelle convenzioni ed i diritti di quelle persone; girandosi dall’altra parte i Governi europei e la stessa Unione Europea violano quelle convenzioni e i diritti di quelle persone.

La Corte Europea dei Diritti dell’Uomo, non applicando misure cautelari, non giustifica tutto questo: essa si limita a dire che non vi è certezza della giurisdizione italiana sulla situazione in cui si trovava la nave (con una decisione presa quando la Sea Watch era in acque internazionali) e che non vi sarebbe un pericolo imminente per la vita di quelle persone. Corretta o meno che sia questa decisione, non dice che è lecito lasciarli in mare. Tantomeno dice che ha ragione il Ministro dell’Interno italiano, quando dice che un porto sicuro c’era ed era in Libia. I rapporti di tutte le organizzazioni internazionali e dell’UNHCR hannno da tempo accertato che in Libia i migranti sono rinchiusi in veri campi di concentramento, sottoposti a torture, maltrattamenti, uccisi.

Ci sarà un giorno una Norimberga del mare, che condannerà chi oggi ha rifiutato aiuto e ha legittimato le torture in Libia; ma non possiamo aspettare questo giorno.

Come avvocati e come giuristi chiediamo con forza che venga rispristinato al più presto in Europa e in ognuno degli Stati membri il rispetto diritti umani, dei principi del diritto internazionale, del Diritto.

Chiediamo che venga autorizzato l’approdo della Sea Watch e di tutte le navi che operano per salvare le vite umane dai naufragi e dal rischio di respingimento in Libia, che venga concesso ai naufraghi di scendere a terra e di chiedere protezione in Europa, che venga riconosciuto che chi li ha salvato ha obbedito alle regole del diritto naturale della solidarietà, e non ha commesso alcun reato.

 

 

RIGHTS AT THE BORDERS

RIGHTS AT THE BORDERS

INDEPENDENT LAWYERS’ ACCOUNT OF THE INTERNAL AND EXTERNAL EU BORDERS

Saturday 8 June Colloquium AED Athens

Venue: Athens Bar Association, Akadimias str. 60, Athens

Language: English ***professional consecutive interpretation provided only for the Turkish speakers for Turkish – English and vice versa)

 

PROGRAMME

11:00 Welcome

Introduction: Robert Sabata Gripekoven (European Democratic Lawyers AED) and Harry Ladis (Lawyers’ union for the Defense of Human Rights LUDHR)

 

 

11:30 – 13:15   1. FIRST SESSION: External borders of the European Union

Moderator: Yianna Kourtovik, (LUDHR)

Turkey: N. D.  (Progressive Lawyers Association ÇHD)

Greece: Yiota Masouridou. (LUDHR)

Italy: Laura Martinelli, Legal Team Italia (Legal Team Italia LTI)

Spain: Adria Font (ACDDH- Catalonia) and Natanael Tejerina Ortega, (Free  Association of Lawyers ALA- Madrid)

13:15- 14:00         LUNCH

14:00 – 14:50     2. SECOND SESSION: Internal borders of the European Union

Moderator: Carsten Gericke (Republican Lawyers Association RAV)

Italy – France: Laura Martinelli, (LTI)

France – Italy/Spain: Flor Tercero, (French Lawyers’ Union SAF)

Germany: Berenice Böhlo (RAV)

The Netherlands: Andrea Pool (Dutch Social Lawyers’ Union- VSAN)

15:00 – 15: 10     3. THIRD SESSION: Non state actors/ EU Agencies: Frontex and Easo

Moderator Berenice Böhlo (RAV)

Yiota Masouridou, (LUDHR)

Carsten Gericke (RAV) Legal struggles against EU Agencies

15:10 – 16:00          4. Discussion and Final Declaration

Download the programme here

The arbitrary detention and long-term imprisonment of 18 lawyers

The AED has co-signed a letter directed at the UN denouncing the arbitrary detention and long-term imprisonment of 18 lawyers. We publish it here to explain the mechanisms of their judicial situation:

 

FOR THE ATTENTION OF:

  • Special Rapporteur on the independence of judges and lawyers
  • Special Rapporteur on the situation of human rights defenders
  • Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression
  • Special Rapporteur on the promotion and protection of human rights while countering terrorism

 

Dear Madam/Sir:

 

URGENT ACTION: The arbitrary detention and long-term imprisonment of 18 lawyers from Halkın Hukuk Bürosu (HHB, the Peoples’ Law Office) and Ҫağdaş Hukukçular Derneği (ҪHD, the Progressive Lawyers Association) in violation of fair trial principles and of their rights to freedom of expression.

BACKGROUND

  1. On 15 July 2016, a faction of Turkey’s armed forces staged a violent coup attempt which resulted in the deaths of over 200 and injuries to over 2,000 people.[1] Following the attempted coup, the Government of Turkey (Government) declared a three-month state of emergency to commence on 21 July 2016. The state of emergency was later extended seven times (by three month increments each time) and eventually ended on 19 July 2018.[2] The state of emergency exacerbated the “purge” of State organs and civil society of those allegedly connected to the “Gülen movement”[3] (who were blamed by the Government for the coup attempt) and supporters of the opposition critical of the Government. Mass dismissals of public servants took place without due process amounting to hundreds of thousands including judges, prosecutors, police, military personnel and academics as well as forced closures of media outlets, civil society organisations, universities and trade unions.[4] Human rights defenders (including lawyers), journalists and NGO members who had sought to expose rights violations have been persecuted and often arbitrarily detained and imprisoned.[5] The common thread is, under the guise of national security arguments, the suppression and criminalization of all expression or association of those who are perceived to potentially express, inspire or support criticism of state action or expose state wrongdoing.
  2. The independence and impartiality of the judiciary has been substantially undermined by legislative and constitutional amendments (both pre and post-coup) which have increased executive influence over the judiciary. The judiciary now lacks the capacity to ensure a robust system of justice and uphold the rule of law, especially with reference to remedies for human rights violations by state actors flowing from the state of emergency measures.[6]
  3. Further eroding the rule of law and justice, the Government has adopted a sustained practice of targeting members of the legal profession and interfering with their ability to perform their roles as a key part of the justice system.[7] The Government has prevented lawyers from performing their legitimate duties as lawyers by restricting access to case files and indictments, limiting clients’ access to their lawyers and committing breaches of legal professional confidences including by observing and recording confidential meetings with clients.[8] Lawyer/client visits have also been restricted.
  4. The rights of individuals accused of terrorist crimes to retain legal counsel while in pre-trial detention and to prepare their defence have been largely restricted since the coup attempt, including the right to privileged communication with their lawyer. As stated recently by a lawyer interviewed for a report on the situation of lawyers in Turkey,“[a]s a lawyer you meet your client in prison, and you have no possibility of confidential communication since there’s a prison guard present, a microphone and a camera.[9] Concerns have also been raised regarding the principle of equality of arms between the prosecution and the defendant as the defendant’s lawyers’ role is significantly subverted and almost reduced to the simple formality of appearing at the court proceeding.
  5. The Government has also interfered with the legal profession through the persecution of lawyers, both by way of intimidation but also through arbitrary arrests, detention, imprisonments and ill-treatment.[10] Several lawyers interviewed for the report mentioned above reported threatening remarks from police officers when they visited detainees in police station such as: “Watch out. Representing these suspects could be bad for you” and “It’ll be your turn next”.[11]
  6. Targeted lawyers (and many other members of civil society) have been charged with terror related offences such as membership in a terrorist organisation, forming and leading a terrorist organisation and aiding and abetting a terrorist organisation under Articles 314 and 220 of the Turkish Penal Code. The overly broad language and criteria used in these Articles has led to arbitrary convictions and arbitrarily imposed terms of imprisonment preventing the lawyers from carrying out their role effectively as one of the main pillars of the justice system.[12]
  7. The Office of the High Commissioner for Human Rights (OHCHR), among other bodies, has “identified a pattern of persecution of lawyers representing individuals accused of terrorism offences”.[13] The principle of non-identification of lawyers with their clients and their causes required by the UN Basic Principle on the Role of Lawyers[14] has been undermined by the Turkish authorities. A lawyer described this situation by stating that “If a lawyer defends a Kurd these days that makes him a Kurdish nationalist. If he defends a FETÖ suspect, he is a FETÖ member”.[15]
  8. The UN Special Rapporteur for the Promotion and Protection of Human Rights while Countering Terrorism, following a 2006 visit in Turkey, had criticized the vague definition of terrorist crimes for not being in line with international norms and standards and warned that “only full clarity with regards to the definition of acts that constitute a terrorist crime can ensure that the crime of membership, aiding and abetting and what certain authorities refer to as ‘crime of opinion’ are not abused for purpose other than fighting terrorism.”[16] Since the 2016 coup attempt, these overly broad and vague laws have been used to illegitimately investigate, prosecute and/or convict upwards of 402,000 individuals as of January 2019. [17] Among those individuals, lawyers were specifically targeted: 1,546 lawyers have been prosecuted under these provisions, 598 arrested and 274 convicted and sentenced to long term prison sentences ranging from 2 to 18 years.[18] There have been recent reports that this persecution of lawyers has now been extended to covert State investigations into those lawyers’ families, including their children and spouses.[19] Lawyers in Turkey are being persecuted for simply performing their constitutionally protected roles peacefully and lawfully. They are prosecuted, and often convicted, based on vague definitions of terrorism and related acts. The arbitrary application of these laws to silence and intimidate human rights defenders and lawyers lawfully exercising their right to freedom of expression, among other fundamental human rights, has been vividly present.[20] Following the declaration of the state of emergency, 1,719 human rights, humanitarian, and lawyers’ associations, foundations and NGOs were permanently closed by the Government.[21] This threatening and harassing climate has subsequently compelled human rights NGOs to exercise self-censorship.[22]

 

CASE STUDY

  1. In 2016, ҪHD, which was a lawyers’ organization well known for speaking out against State repression, practices of torture and other human rights violations,[23] was forced to close by virtue of a state of emergency decree (Statutory Decree No. 677). On 12 September 2017, sixteen lawyers from HHB and ҪHD, Didem Baydar Ünsal, Şükriye Erden, Ayşegül Çağatay, Ebru Timtik, Aytaç Ünsal, Zehra Özdemir, Yağmur Ereren, Engin Gökoğlu, Süleyman Gökten, Aycan Çiçek, Naciye Demir, Behiç Aşçı, Barkın Timtik, Özgür Yılmaz, Ahmet Mandacı and Ezgi Gökten were taken into custody on the basis of allegations that they were members of or leading members of the Revolutionary People’s Liberation Party-Front (DHKP-C), a Turkish Marxist-Leninist Party which Turkey considers an armed terrorist organization.[24] All sixteen lawyers were representing Nuriye Gülmen and Semih Özakça, an academic and a teacher respectively, who had engaged in public protests and went on a hunger strike objecting to dismissals from their jobs facilitated by a state of emergency decree. The defence lawyers were arrested two days before Gülmen and Özakça’s trial started. Fifteen out of the sixteen lawyers were remanded in custody on 21 September 2017. The chair of ÇHD, Selçuk Kozağaçlı, was arrested on 8 November 2017 and remanded in custody on 13 November 2017.[25] Yaprak Türkmen was taken into custody on 18 December 2017 under the same investigation file; she was kept in custody for 2 days and her pre-trial detention was ordered on 20 December 2017 by an Istanbul Criminal Judgeship of Peace.[26]
  2. In total, twenty lawyers were accused of being members or leaders of DHKP-C and the pre-trial detention of 17 was ordered. An indictment was then prepared by the Istanbul Public Prosecutor and issued on 22 March 2018. On 14 September 2018, the Istanbul 37th Heavy Penal Court ordered the release of all 17 detained lawyers, Ahmet Mandacı, Aycan Çiçek, Ayşegül Çağatay, Aytaç Ünsal, Barkın Timtik, Behiç Aşçı, Didem Baydar Ünsal, Ebru Timtik, Engin Gökoğlu, Naciye Demir, Özgür Yılmaz, Selçuk Kozağaçlı, Süleyman Gökten, Şükriye Erden, Yağmur Ererken, Yaprak Türkmen and Zehra Özdemir. However, less than 24 hours after their release, the Prosecutor’s Office objected to the release of the lawyers.[27] The court panel issued a new arrest warrant for 12 of the 17 lawyers who were previously released. By the second week of December, six of them were arrested again.[28] On 19 September 2018, two judges of the court that had ordered pre-trial release on 14 September 2018, including the presiding judge, were replaced by two new judges.
  3. The “trial” of the lawyers, six of whom had been held in pre-trial detention, occurred in three hearings. The third and final hearing was held between 18 March and 20 March 2019 at the Istanbul 37th Heavy Penal Court in Silivri Courthouse. The lawyers were convicted of terrorism offences linked to DHKP-C and sentenced to prison terms. The court reaffirmed the Public Prosecutor’s conclusion, that by providing legal representation to individuals charged with links to the outlawed DHKP-C, the lawyers became themselves members of the illegal group.[29]
  4. The names of the lawyers, the charges they faced and the subsequent sentences they received are as follows:
  • For “willingly and knowingly aiding a terrorist organization,” under Articles 314(3) and 227(2) of the Turkish Penal Code: Ayşegül Çağatay, Yağmur Ereren, Didem Baydar Ünsal, Yaprak Türkmen: 3 years 9 months; Ahmet Mandacı, Zehra Özdemir: 2 years 13 months, and 15 days imprisonment.
  • For “membership of a terrorist organization” under Article 314(2) of the Turkish Penal Code: Ebru Timtik, Özgür Yılmaz 13.5 years; Behiç Aşçı, Sukriye Erden: 12 years; Selçuk Kozağaçlı (ÇHD President): 11 years and 3 months; Suleyman Gokten, Aytaç Ünsal, Engin Gökoğlu: 10.5 years; Aycan Çiçek, Naciye Demir: 9 years; Ezgi Cakir: 8 years imprisonment.
  • For “founding and managing a terrorist organization” under Article 314(1) of the Turkish Penal Code: Barkın Timtik: 18 years and 9 months imprisonment.
  1. The trial was plagued by a distortion of procedural process and lack of respect for universally accepted elements of a fair trial which have been criticised by Amnesty International as “a travesty of justice [that] demonstrate yet again the inability of courts crippled under political pressure to deliver a fair trial”.[30] Such concerns included arguments by the prosecution based on digital records which were not in the case file and not made available to the defence, and the judge not allowing the defence to speak or to engage in any effective manner to challenge evidence and refusing a request to facilitate the collection of further evidence and investigation.[31] The judges also interrupted a request by the defence for the recusal of the presiding judge, they did not allow them to finish their submission and then had all the defendants and their lawyers removed from the court. The sentences were issued the following day without the defendants and their lawyers being allowed to return to court to submit their final defence statements and participate further in the proceedings.[32]
  2. Representatives of bar associations in Turkey, as well as a number of international lawyers’ organisations, attended the final hearing.[33] Subsequently, a statement formulated by 39 bar associations across Turkey condemned what they referred as “repeated violations of the right to a fair trial, of the criminal procedure code and of principles of the law by the court.”[34] The international monitors drafted reports similarly criticizing the way the trial had been conducted by the court.[35]

 

TURKEY’S OBLIGATION UNDER DOMESTIC AND INTERNATIONAL LAW

Right to Liberty and Security and Right to a Fair Trial

  1. Domestic law: The right to liberty and security, protecting an individual’s right not to be arbitrarily deprived of liberty, is recognised under the Constitution of Turkey (Constitution).[36] Article 19 of the Constitution protects everyone’s right to liberty and security: according to paragraph 3, conditio sine qua non for a lawful arrest is the presence of strong evidence of the commission of a crime. Article 90 of the Constitution provides that international agreements concerning fundamental rights and freedoms, such as the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights (ECHR), “duly put into effect carry the force of law.”
  2. Moreover, under Article 100 of the Turkish Code of Criminal Procedure,[37] a pre-trial detention can be carried out only if facts show the existence of a strong suspicion of a crime and one of the listed grounds for arrest is present. Such grounds are as follows: specific facts supporting the suspicion that the suspect or accused is going to flee; suspicion that the suspect or the accused will attempt to destroy, hide or alter the evidence, or will attempt to put pressure on witnesses, victims or other individuals.
  3. International law: The right to liberty and security is protected under existing human rights law instruments, both at an international and at a regional level. Article 9 of the Universal Declaration of Human Rights (UDHR),[38] Articles 9 and 14 of the ICCPR,[39] and Article 5 of the ECHR[40] guarantee everyone’s right to liberty and security and prohibit any arbitrary violation of such rights, with Article 14 of the ICCPR laying out fair trial standards.
  4. The main aim of the abovementioned provisions is to protect individuals from arbitrary deprivation of liberty. Thus, any substantive grounds for arrest or detention must be “prescribed by law” with sufficient precision to prevent arbitrariness. Even if an arrest or detention has legal basis and is administered following the procedures established by domestic law, it may still be arbitrary unless it is reasonable, necessary and proportionate. The notion of “arbitrariness” therefore is a broader concept which includes “elements of inappropriateness, injustice, lack of predictability and due process of law, as well as elements of reasonableness, necessity and proportionality.”[41] The UN Human Rights Committee notes that detention as punishment for the legitimate exercise of the rights of freedom of opinion and expression, freedom of assembly or freedom of association is considered to be arbitrary. Similarly, deprivation of liberty pursuing an aim of intimidation or reprisal against a person is also arbitrary.[42]
  5. Application of the law: The arrest and subsequent detentions of the lawyers detailed above are unlawful both under Turkey’s domestic laws and the State’s international human rights obligations. In light of the State rhetoric[43] surrounding the lawyers’ defence of Nuriye Gülmen and Semih Özakça and other work criticising the Government’s human rights violations, this trial and resulting imprisonments seem to be a tool to harass lawyers, as they are being prosecuted and punished merely for carrying out their professional obligations. In addition, their arrests, detention and sentencing constitute an unlawful interference with the rights of their clients to petition the ECtHR under the ECHR. The lawyers are being charged and have been imprisoned for their legal activities as members of their respective associations; these are legitimate activities carried out in the course of discharging their professional duties. Moreover, legal representation cannot be used as a tool to identify lawyers with their clients or their clients’ causes.[44] To allow lawyers to be identified with their clients’ alleged causes is certain to discourage lawyers from defending many accused persons, thereby depriving many accused individuals of their fundamental right to a proper legal defence. The lawyers in this case have been impermissibly identified with their clients and consequently prosecuted.
  6. The absence of due process rights and fair trial standards in the procedure followed against the lawyers amounts to violations under Article 14 of the ICCPR, and, regarding arbitrary detention, under Article 9 of the ICCPR. Such fair trial deficiencies include the failure to allow the defence to examine prosecution evidence and witnesses and the refusal by the judge to even hear certain defence arguments (including a request that the judge be recused).[45] Under Article 14 (1) of the ICCPR, there must be equality of arms between the parties in a proceeding.[46] This principle was undermined significantly in the trial as the lawyers’ defence teams were prevented from cross-examining witnesses, as provide for under Article 14 (3)(e) of the ICCPR,[47] from accessing and actioning investigations into prosecution evidence (contrary to Article 14 (3)(b) of the ICCPR) and by the court refusing to hear defence legal arguments and then later expelling them from proceedings.[48] Article 14 3(d) of the ICCPR ensures that the accused be present during their trial and be able to defend themselves through legal representation of their choosing. The court, by removing all defendants and their legal representation towards the end of the trial and from the sentencing portion has violated this right without any objective and reasonable basis.[49] There are therefore violations of Articles 9, 14 and 19 of the ICCPR in relation to the detention and prosecution of the 18 lawyers.

 

Rights of Lawyers and Rule of Law

  1. International Law: At an international level, the rights of lawyers, including their right to liberty and security, are protected by a number of instruments including the 1990 United Nations Basic Principles on the Role of Lawyers,[50] the Draft Universal Declaration on the Independence of Justice, paragraph 7 of UN Resolution No. 2004/33/19, and Recommendation No. 21 of the Committee of Ministers to Member States on the freedom of exercise of profession of lawyer adopted by the European Council in 2000. These instruments clearly recognise the fundamental role of the legal profession in the administration of justice and maintenance of the rule of law.
  2. The Basic Principles on the Role of Lawyers state that lawyers’ enjoyment of the rights and freedoms recognised under international human rights instruments and relevant to their professional conduct must be respected. Accordingly, States are obliged to recognise and uphold the independence of lawyers. Principle 16 states that Governments are under obligation to ensure that no restrictions, influences, inducements, pressures, threats or interference are to be imposed on lawyers while they are discharging their professional duties. States must enable lawyers to carry out their professional activities freely, diligently and fearlessly, without any inhibition or pressure. Lawyers shall enjoy the right to take full and active part in the political, social and cultural life of their country. According to Principle 23, lawyers are entitled to freedom of expression, opinion and association. Moreover, lawyers have the right to take part in public discussions of matters concerning the upholding of international human rights “without suffering professional restrictions”.[51] Due to the increased incidents of harassment, threats and attacks against lawyers in a number of Council of Europe countries, including Turkey, and undue interference with their legitimate activities, the Parliamentary Assembly of the Council of Europe has recommended the drafting of a binding Convention for the protection of lawyers in member states,[52] taking its previous recommendation a step forward.[53]
  3. Furthermore, Article 9 of the United Nations Declaration on Human Rights Defenders states that “everyone has the right […] to offer and provide professionally qualified legal assistance or other relevant advice and assistance in defending human rights and fundamental freedoms”;[54] and Article 11 imposes an obligation on States to ensure everyone’s right “to the lawful exercise of his or her occupation or profession”.[55] Lastly, according to Principle 18 of the UN Basic Principles on the Role of Lawyers, “lawyers shall not be identified with their clients or their clients’ causes as a result of discharging their functions”.[56]
  4. Application of the law: The apprehension and detention of the 18 Turkish lawyers constitutes a serious interference with their rights and freedoms, as stipulated under the above-mentioned international instruments. By arresting and sentencing these lawyers, the Government not only prevents them from exercising their professional duties but also denies prospective or actual clients the right to be represented by a lawyer of their choice. These acts constitute a violation under both Article 6(2) of the ECHR and Article 14 of the ICCPR, as well as the above-mentioned principles stipulated under the UN Basic Principles on the Role of Lawyers including Principle 1 stating that “all persons are entitled to call upon the assistance of a lawyer of their choice”.
  5. This case raises issues in relation to a number of other rights and freedoms including the right to freedom of expression, association and peaceful assembly, and the right to respect for private life and correspondence of lawyers. In this submission, however, the focus has been on the above-mentioned aspects of the violations resulting from unlawful detention and prosecution of the 18 lawyers.
  6. Turkish State authorities are using arrests and detentions as tools to prosecute lawyers and other human rights activists for working on cases that shed light on possible human rights violations perpetrated by the Government. Such conduct by the Turkish State constitutes a breach of Turkey’s international obligation to ensure that lawyers are not being prevented from performing their professional functions freely.

 

ACTIONS REQUESTED

  1. We request the Special Rapporteurs urge the Turkish authorities to facilitate the immediate acquittal of lawyers Ayşegül Çağatay, Yağmur Ereren, Didem Baydar Ünsal, Yaprak Türkmen, Ahmet Mandacı, Zehra Özdemir, Ebru Timtik, Özgür Yılmaz, Behiç Aşçı, Sukriye Erden, Selçuk Kozağaçlı, Suleyman Gokten, Aytaç Ünsal, Engin Gökoğlu, Aycan Çiçek, Naciye Demir, Ezgi Cakir and Barkın Timtik; and the urgent release of those in detention pending appeal.
  2. We further request the Special Rapporteurs urge the Turkish authorities to stop all forms of harassment, including judicial harassment, against these individuals as well as other lawyers and human rights defenders in Turkey, and allow them to perform their professional and lawful functions without intimidation or improper interference.
  3. We request the Special Rapporteurs intervene in these serious matters and raise these issues, as a matter of priority, with the Turkish authorities. In particular, the Special Rapporteurs are requested to communicate – if possible, jointly – the concerns outlined in relation to the detention of the 18 lawyers.
  4. We request the Special Rapporteurs urge the Turkish authorities to immediately stop using oppressive methods against individuals, particularly lawyers and other human rights defenders, who are critical of the human rights violations perpetrated by the State authorities including the security forces.
  5. We request the Special Rapporteurs urge the Turkish authorities to ensure the independence of the judiciary by law and practice and to prevent judges, prosecutors and lawyers from undue interferences.
  6. We request the Special Rapporteurs call on the Government of Turkey to comply with the provisions of the ICCPR, the UN Basic Principles on the Role of Lawyers, the UN Declaration on Human Rights Defenders and other international instruments on the protection and promotion of fundamental rights and freedoms.
  7. We would be grateful if you would kindly confirm what action you will be taking and to inform us of any response received from the Turkish authorities.
  8. Finally, we would be grateful for your acknowledgement of receipt of this letter.

 

Yours faithfully,

 

[1]Amnesty International, No End in Sight, Purged Public Sector Workers Denied a Future in Turkey, 2017, https://www.amnesty.org/en/documents/eur44/6272/2017/en/, accessed 29 March 2019.

[2] On 9 August 2018, the lifting of the state of emergency and end of the derogation period was notified by the Turkish Government to the Secretary General of the UN, https://treaties.un.org/doc/Publication/CN/2018/CN.378.2018-Eng.pdf, accessed 29 March 2019.

[3]This movement is a collective term for those followers of the now US-based Islamic cleric Fethullah Gulen who the Turkish Government blamed for orchestrating the 2016 coup attempt.

[4]Human Rights Joint Platform, Updated Situation Report- State of Emergency in Turkey, 21 July 2016 – 20 March 2018, http://www.ihop.org.tr/en/wp-content/uploads/2018/04/SoE_17042018.pdf>\, accessed 29 March 2019.

[5] Amnesty International, Turkey: NGOs unite to defend civil society from destruction, 27 February 2019, https://www.amnesty.org/en/latest/news/2019/02/turkey-ngos-unite-to-defend-civil-society-from-destruction/, accessed 29 March 2019.

[6] See. International Commission of Jurists, Turkey: the Judicial System in Peril : A briefing paper, https://www.icj.org/wp-content/uploads/2016/07/Turkey-Judiciary-in-Peril-Publications-Reports-Fact-Findings-Mission-Reports-2016-ENG.pdf; Council of Europe Group of State Against Corruption (GRECO), Fourth Evaluation Round Turkey: Corruption Prevention In Respect of Members of Parliament, Judges and Prosecutors, 15 March 2018, https://rm.coe.int/fourth-evaluation-round-corruption-prevention-in-respect-of-members-of/1680792de8; Parliamentary Assembly of the Council of Europe, The worsening situation of opposition politicians in Turkey: what can be done to protect their fundamental rights in a Council of Europe member State?, Resolution 2260 (2019), 24 January 2019, http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-EN.asp?fileid=25425&lang=en, accessed 29 March 2019.

[7]Human Rights Watch, World Report 2019, https://www.hrw.org/world-report/2019/country-chapters/turkey, accessed 5 April 2019.

[8] The Law Society of England and Wales, Bar Human Rights Committee of England and Wales, International Bar Association Human Rights Institute, Joint Submission to the Special Rapporteur on the Independence of Judges and Lawyers concerning International Law Breaches Concerning the Independence of Legal Profession in Turkey, 18 September 2018, p.18-30, http://www.barhumanrights.org.uk/wp-content/uploads/2018/09/bhrc-ibahri-lsew-joint-submission-turkey-final2.pdf, accessed on 5 April 2019.

[9] Human Rights Watch, Lawyers on Trials; Abusive Prosecutions and Erosion of Fair Trial Rights in Turkey, April 2019, p.6 and 8, https://www.hrw.org/sites/default/files/report_pdf/turkey0419_web.pdf, accessed 18 April 2019.

[10] Ibid.

[11] Human Rights Watch, Lawyers on Trials; Abusive Prosecutions and Erosion of Fair Trial Rights in Turkey, April 2019, p.7, https://www.hrw.org/sites/default/files/report_pdf/turkey0419_web.pdf, accessed 18 April 2019.

[12] European Commission for Democracy Through Law, Opinion on Articles 216, 299, 301 and 314 of the Penal Code of Turkey, Adopted at 106th Plenary Session, Venice, 11-12 March 2016, Opinion No. 831/2015, 15 March 2016, https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2016)002-e, accessed 29 March 2019; Council of Europe Commissioner for Human Rights, Third party intervention by the Council of Europe Commissioner for Human Rights, 10 October 2017, https://rm.coe.int/third-party-intervention-10-cases-v-turkey-on-freedom-of-expression-an/168075f48f, accessed 29 March 2019.

[13] UN Office of the High Commissioner for Human Rights (OHCHR), Report on the Impact of the State of Emergency on Human Rights in Turkey, Including an Update on the South-East, March 2018, https://www.refworld.org/docid/5ab146c14.html, accessed 29 March 2019.

[14] UN Basic Principles on the Role of Lawyers, 1990, principle 18, http://www.ohchr.org/EN/ProfessionalInterest/Pages/RoleOfLawyers.aspx, accessed 5 April 2019.

[15] Human Rights Watch, fn no. 11, p.6.

[16]Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism on his mission to Turkey (April 16-23, 2006), November 16, 2006, §90, https://documents-ddsny.un.org/doc/UNDOC/GEN/G06/149/42/PDF/G0614942.pdf?OpenElement, accessed 1 April 2019.

[17] The Arrested Lawyers Initiative, New Report: Incarceration of Turkish Lawyers: Unjust Arrests and Convictions (2016-2018), 1 April 2019, p.33, https://arrestedlawyers.files.wordpress.com/2019/04/report9.pdf, accessed 10 April 2019.

[18] Ibid., p.1.

[19] Ibid, p. 31.

[20] OHCHR, Report on the impact of the state of emergency on human rights in Turkey, fn no. 13.

[21] Ibid, p. 3, §13

[22] Ibid. p. 22, §92.

[23] Stockholm Center for Freedom, Lawyers association: Imprisoned Gülen followers subject to rape, nail extraction, object insertion, January 18, 2017, https://stockholmcf.org/lawyers-association-imprisoned-gulen-followers-subject-to-rape-nail-extraction-object-insertion/, accessed 1 April 2019.

[24] Bianet, 14 Detained Attorneys of Gülmen, Özakça on Hunger Strike Arrested, 21 September 2017, https://bianet.org/english/law/190006-14-detained-attorneys-of-gulmen-ozakca-on-hunger-strike-arrested.

[25] Bianet, Progressive Legist Association Chair Kozagacli Arrested, 14 November 2017,       http://bianet.org/english/law/191498-progressive-legists-association-chair-kozagacli-arrested.

[26] European Association of Lawyers for Democracy & World Human Rights (ELDH), Summary of Trial Against 20 Lawyers, https://eldh.eu/wp-content/uploads/2019/03/SUMMARY-OF-TRIAL-AGAI%CC%87NST-20-LAWYERS.pdf, accessed 3 April 2019.

[27] A similar example was seen in a case where 29 journalists were tried for being members of a terrorist organization aftermath of attempted coup d’état. Journalists were rearrested after courts had ordered their release and the judges and a prosecutor of the case were suspended by the Supreme Board of Judges and Prosecutors (HSYK), http://www.hurriyetdailynews.com/turkeys-board-of-judges-prosecutors-temporarily-suspends-four-for-ordering-release-of-gulen-suspects-111576.

[28] Bianet, 18 Lawyers Sentenced to Prison for 159 Years, 1 Month, 30 Days in Total, 20 March 2019, https://bianet.org/english/law/206630-18-lawyers-sentenced-to-prison-for-159-years-1-month-30-days-in-total, accessed 16 April 2019.

[29] Human Rights Watch, fn no. 11, p.34.

[30] ELDH, 18 Turkish lawyers sentenced to long prison terms, March 20 2019, https://eldh.eu/2019/03/21/18-turkish-lawyers-sentenced-to-long-prison-terms/, accessed 3 April 2019.

[31]ELDH, Summary of Trial Against 20 Lawyers, fn no. 23.

[32] Ibid.

[33] Human Rights Watch, fn no. 11, p.34; Statement by the Paris Bar Association calling for the release of the lawyers, http://www.avocatparis.org/turquie-18-avocats-condamnes-jusqua-18-ans-de-prison-le-barreau-de-paris-appelle-leurliberation, accessed 18 April 2019.

[34] Statement to the media on the trial of ÇHD members by the heads of 39 bar associations, http://www.diyarbakirbarosu.org.tr/39barodanchduyesimeslektaslarimizinyargilanmasinailiskinortakbasinaciklamasi- /1564, accessed 18 April 2019.

[35] See for example, https://eldh.eu/en/2019/03/21/18-turkish-lawyers-sentenced-to-long-prison-terms/; https://eldh.eu/wp-content/uploads/2019/03/CCBE-EN_HRL_20190326_Turkey_Sentencing-of-18-human-rights-lawyers.pdf.

[36] Constitution of Turkey, http://www.hri.org/docs/turkey/part_ii_2.html, accessed 3 April 2019.

[37]Turkish Code of Criminal Procedure,

http://www.google.co.uk/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0ahUKEwi5kovg44vMAhUHbBoKHSo0BwMQFggdMAA&url=http%3A%2F%2Fwww.legislationline.org%2Fdocuments%2Fid%2F17788&usg=AFQjCNH0fibE4WxXgabmIwqOjukpyOXObA&sig2=gCxh2IWoP9XMjelh0cdrWQ&cad=rja, accessed 4 April 2019.

[38]UN General Assembly, Universal Declaration of Human Rights, 10 December 1948,

http://www.refworld.org/docid/3ae6b3712c.html , accessed 3 April 2019.

[39]UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 171, http://www.refworld.org/docid/3ae6b3aa0.html, accessed 19 April 2016). Turkey ratified the ICCPR on 23 September 2003 with one reservation and ratified the Optional Protocol to the International Covenant on Civil and Political Rights on 24 November 2006 and the Second Optional Protocol to the International Covenant on Civil and Political Rights on 2 March 2006. Both Optional Protocols entered into force on 24 February 2007.

[40]Council of Europe, European Convention on Human Rights, 4 November 1950,http://www.refworld.org/docid/3ae6b3b04.html, accessed 4 April 2019.

[41] CCPR Human Rights Committee General comment no.35 on Article 9 concerning liberty and security of a person, adopted on 16 December 2014, para.12.

[42] Ibid, paras.17 and 53.

[43] Platform Peace & Justice, Right to Defence is Abolished under the State of Emergency in Turkey, 14 September 2017, http://www.platformpj.org/opinion-right-defence-abolished-state-emergency-turkey/, accessed 10 May 2019.

[44] UN Basic Principles, fn o. 14, principles 16-18.

[45] ELDH, fn no. 23.

[46] UN Human Rights Committee (HRC), General comment no. 32, Article 14, Right to equality before courts and tribunals and to fair trial, 23 August 2007, CCPR/C/GC/32, para 13, https://www.refworld.org/docid/478b2b2f2.html, accessed 10 May 2019.

[47]Avocats Barreau Paris, Turkey: 18 lawyers sentenced to 18 years in prison, the Paris Bar calls for their release, 21 March 2019, http://www.avocatparis.org/turquie-18-avocats-condamnes-jusqua-18-ans-de-prison-le-barreau-de-paris-appelle-leur-liberation, accessed 10 April 2018.

[48] Diyarbakir Barosu, 39 Joint Press Release Regarding the Trial of ÇHD Member Colleagues, 21 March 2019, http://www.diyarbakirbarosu.org.tr/39barodanchduyesimeslektaslarimizinyargilanmasinailiskinortakbasinaciklamasi-/1564, accessed 10 April 2019.

[49] Human Rights Watch, Case Against 20 Lawyers for Membership of the Revolutionary People’s Liberation Party-Front, 10 April 2019, https://www.hrw.org/report/2019/04/10/lawyers-trial/abusive-prosecutions-and-erosion-fair-trial-rights-turkey, accessed 10 April 2019.

[50]UN Basic Principles, fn no. 14.

[51]UN Basic Principles, fn no. 14, Principle 23.

[52] http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-EN.asp?fileid=24296&lang=en.

[53] Council of Europe, PACE Recommendation no (2000) 21 of the Committee of Ministers of member states on the freedom of exercise of the profession of lawyer, 25 October 2000, https://www.asianajajaliitto.fi/files/19/R2000-21_Freedom_of_exercise_of_the_profession_of_lawyer.pdf.

[54]UN General Assembly, Resolution No. A/RES/53/144, 8 March 1999

<http://www.ohchr.org/EN/Issues/SRHRDefenders/Pages/Declaration.aspx> accessed 4 April 2019

[55]Ibid.

[56]UN Basic Principles, fn no. 14, Principle 23.