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Current Norms on Police Identification

BELGIUM There is a generalized obligation for police officers to carry a nameplate with a name, level and police unit. This norm is not always respected and disciplinary sanctions are envisaged for those who do not wear the nameplate.

FRANCE Since the 01/01/2014 the general obligation exists to wear a white stripe with a number composed of 7 digits.
The are now sanctions envisaged for those do not wear the identification.
The recent introduction of the norm does not permit to monitor its effects.

GERMANY The Federal Police does not posses any identification number, but in the different states (Länder) legislation varies.
In most of the German Länder police officers are free to decide to wear an identification label.

In Berlin, police officers are obliged to wear a name tag or an identification number.

In Sachsen-Anhalt the general obligation exists, but the special units in charge of demonstrations are exempted from this general obligation.

HOLLAND Police officers in uniform are obliged to carry a nameplate on the uniform. During public order policing they wear a number on the helmet.
The nameplate is part of the uniform, but it is possible to hide it in certain circumstances.
There are no particular sanctions for those who do not carry an identification.

ITALY There is no norm containing a system of identification of police forcers.
A proposal exists for a law concerning the identification of police officers during their public order policing.

SPAIN There is a general obligation to wear the nameplate, except during public order policing. The law is not always abided, but no sanctions are envisaged for those who do not wear the identification.
There are significant regional differences.

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On Legalteams

The EDL, in the course of a bureau meeting in Istanbul on the 18th of October 2014, has decided:

Whereas:

  • In the course of a trial taking place in Turin, Italy, against dozens of citizens, who have actively demonstrated for years in defence of the territory of the Valley of Susa threatened by the construction of a devastating and useless high speed train, the Public Prosecutor has requested high penalties. During the hearing of the 14th October 2014, the lawyer defending the State affirmed:

“The so-called Legal Team was present on the scene on the 27th of June and the 3rd of July. This trial, which has lived of filmed images, has given us the possibility of seeing these lawyers in places where crimes were being enacted…the moment has come, where one has to choose between the Legal Team jacket or the Lawyers’ robe because wearing both is difficult and the credibility of the lawyer is at stake”

  • Since the G8 in Genoa in 2001, in all mass demonstrations, lawyers in all Europe have worn the legal team jacket and taken to the streets in support of the free demonstration of opinion and following the principle that fundamental rights are not only defended in the courts of justice but everywhere where they are under threat.
  • The grave statements of the lawyer representing the state, given the context and place where they were pronounced, constitute an unacceptable form of intimidation of defence lawyers in this particular trial, as well as of lawyers working for citizens under trial for opposing the destruction of the environment and living conditions of people.

Now, therefore:

The EDL expresses its greatest outrage at the attacks against the freedom of organization of lawyers and the attempt to intimidate the defence lawyers, undermining the guarantees of the defence within and outside the trial.

The EDL expresses its solidarity to the Legal Team Italy and to the courageous lawyers of Turin who work under particularly difficult circumstances.

The EDL reiterates that the activity of Legal Team is part of the heritage of democratic struggle and a legitimate exercise of lawyers’ professional activity.

The EDL appeals to all institutions of self-government of lawyers and magistrates, as well as to all citizens to intervene to avoid attacks on democratic lawyers and the rights of the defence.

 

Bureau of the EDL

Istanbul, 18/10/2014

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Arrest of three Basque Lawyers

PRESS RELEASE

London, Düsseldorf, Farciennes 21 July 2014

The European Lawyers Associations AED and ELDH have received information concerning several situations of grave concern in relation with the pressure and persecution Basque lawyers are suffering.

First, we express our concern over the arrest and imprisonment of the three Basque lawyers Jon Enparantza, Arantza Zulueta and Jose Campo, arrested six months ago who still remain under preventive detention since then. The restrictive security measures to which they are subjected involve a high degree of isolation.

The cases of Arantza Zulueta and Jon Enparantza cause particular concern. In the case of Zulueta, she is suffering a situation of extreme isolation in the prison Puerto III, 980 km far away from the Basque Country, and living a lifestyle that is not compatible with her rights1. These conditions threaten her physical and mental integrity. She has not been convicted and this is incompatible with the presumption of innocence. Jon Enparantza is exactly under the same situation in the prison of Segovia, 410 km away from Donostia, where he lives with his family.

Second, we express our concern concerning the information recently leaked to the media, which could be considered to be part of an operation against a specific group of lawyers. Without having any news other than that leaked to the media, we are led to believe that the conditions described are not compatible with the exercise the right to a defence.

1

The routine she is facing at present is as follows: since entering in prison she has been in the isolation module, alone, with no contact with any other prisoner. Now she is in a special isolation module withe no human contact, she has 4 hours in the yard which measures 15 x 5 steps in the morning or in the afternoon, at the discretion of the prison officers.

She is subjected to daily personal body searches on going to the yard, and often while in the yard, her cell is turned upside down, and she can receive phone calls only when prison officers arbitrarily decide and they remain in her presence. This situation is quite irregular and contrary to the regime officially applied to prisoners.

In the cell she is only allowed to have two books and some clothes. All her belongings are retained by the authorities and even the letters received must be returned, once read, to be stored with the rest of her retained belongings. All her letters are intercepted, both incoming letters that take about two weeks to arrive, and her own letters, in addition to having the number of letters that can be sent reduced to two people, per week.

2

We therefore declare:

First. The fact that our lawyers colleagues have been arbitrarily detained must be admitted, and their right to physical and mental integrity should be safeguarded.

Second. These lawyers should be released from custody in accordance with international standards. Their release is urgent, because the lawyers are suffering a particularly severe isolation regime, away from their homes and away from their families, and the presumption of innocence to which they are entitled is being violated.

Therefore, we demand their immediate release awaiting prosecution and trial. The full and effective enjoyment of all human rights and fundamental freedom should be restored to them, in particular, those corresponding their capacity as lawyers and human rights defenders.

Third. Their prosecution before a special court (Audiencia Nacional) should be terminated, and the use of special courts for the suppression of terrorism is not justified.

Fourth. The Spanish State should instruct the Guardia Civil that police operations based only on exceptional reports such as those which have led to the detention of these three lawyers must end.

Fifth The right of full and adequate defence must be guaranteed, to be exercised freely and without any pressure or constant threats.

ELDH – European Association of Lawyers for Democracy and World Human Rights, Platanenstraße 13, 40233 Düsseldorf, Germany, www.eldh.eu

EDL – European Democratic Lawyers, Rue Albert Ier, 236, 6240 Farciennes, Belgium, http://www.aeud.org/

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Aide Légale en Europe

Schermata 2015-10-31 alle 17.00.52

 

par: Gilberto Pagani

Dans tous les textes constitutionnels et dans la Charte des droits Fondamentaux de l’Union Européenne, le droit à la justice et à l’aide juridictionnelle est consacré comme droit fondamental.
Sur le mur de toutes les salles d’audience est écrite la phrase qui devrait représenter ce principe: la loi est égale pour tous.

Ces mots ont un sens double : d’une part, les lois s’appliquent sans aucune distinction à tous les citoyens, de l’autre, tous les citoyens sont égaux devant la loi.
Mais demandons-nous: au-delà des pétitions de principe, tous les citoyens sont-ils vraiment égaux devant le procès?

Déjà dans les années ’50, le grand avocat et juriste italien Piero Calamandrei observait que

quand le pauvre s’aperçoit que, pour invoquer l’égalité de la loi à sa défense, l’aide de cette richesse qu’il n’a pas lui est indispensable, alors cette phrase, la loi est égale pour tous, semble une mauvais plaisanterie à sa misère.
Notre tradition constitutionnelle et procédurale voit le rapport entre le citoyen et la justice comme réduit aux deux figures de la justice imposante et majestueuse, et du citoyen soumis à la puissance de la loi et à la force punitive de l’Etat.

Mais c’est une vision rhétorique et contraire à la réalité, parce que le citoyen ne se défend pas tout seul (parce que d’autres règles constitutionnelles imposent l’assistance d’un avocat) et il ne pourrait pas se défendre tout seul parce que, évidemment, il ne possède pas les instruments techniques nécessaires pour affronter un procès, pas plus que le détachement indispensable par rapport aux émotions qui constellent un procès.

Alors nous pouvons dire tranquillement que la différence de traitement des citoyens devant la loi dérive de la possibilité plus ou moins grande d’avoir à son côté un bon avocat. À l’égalité de la loi, à l’égalité d’indépendance du juge, à l’égalité des systèmes, la différence est faite par l’avocat.

Le système de l’aide légale devrait être le mécanisme qui permet aux pauvres d’avoir une tutelle procédurale efficace avec un avocat de confiance.
Nous verrons au cours de nos travaux si et comment ce système fonctionne et s’il est vraiment apte à s’acquitter de son devoir.

Il est de toute façon évident que, au moment où viennent à manquer les ressources pour garantir un certain niveau de welfare, diminuent aussi les fonds pour le parrainage des pauvres.
Une des conséquences de la fin du rêve du bien-être pour tous est que sont venus à manquer les instruments de médiation sociale qui prévenaient la montée des conflits. Cela signifie que le conflit ne trouve pas de débouchés institutionnels; un nombre énorme de travailleurs dont les droits ne sont pas défendus n’ont plus aucune possibilité de se

prémunir par la voie judiciaire.
Des millions de chômeurs, de travailleurs précaires, de travailleurs étrangers et leurs familles se trouvent dans une zone de non-droit dès lors qu’ils n’ont pas, objectivement, la possibilité de faire appel à un juge, la législation néolibérale ne les défendant d’aucune manière.
Au contraire, la désagrégation sociale et le manque de structures sociales laissent ces gens isolés ou à l’intérieur de groupes sociaux restreints et marginaux et cela provoque l’augmentation de la criminalité prédatrice, des comportements déviants et, par voie de conséquence, de la prison comme instrument de contrôle social.
Nous ne pouvons penser que le renversement de cet état de choses dépende du bon fonctionnement de l’aide légale.
Mais nous devons nous engager, dans l’attente d’un avenir meilleur, pour que cette institution ne se réduise pas à un simulacre, à une simple fictio juris.
Un des sujets de ce séminaire est l’alternative pro bono ou aide légale, les droits contre la charité.
Nous tous travaillons souvent pro bono, et souvent aussi malgré nous.
Mais le pro bono des grands cabinets d’avocats n’est pas la même chose que l’activité de volontariat et de solidarité sociale qui a vu ces dernières années l’apparition d’associations d’avocats qui assistent gratuitement les gens sans logement, sans papier, les migrants, les minorités de tous types et leur fournissent gratuitement une assistance juridique de qualité.
Je rappelle l’expérience des legal teams qui, depuis Gênes 2001, engagent dans les rues et dans les salles d’audience des centaines ou peut-être des milliers d’avocats qui procurent une assistance aux gens frappés par la répression parce qu’ils manifestent pour la protection des droits fondamentaux.
Le pro bono des grands cabinets d’avocats est avant tout un “asset”, une vitrine qui permet à un cabinet qui d’habitude met ses capacités au service de spéculateurs ou de “white collar criminals” de prendre le masque de la philanthropie.
D’autre part, il faut se garder de tendances qui voudraient voir l’avocat des pas riches, l’avocat commis d’office, comme une espèce de fonctionnaire public qui rend possible par sa présence le déroulement constitutionnel d’un procès mais n’est pas une entrave à l’efficacité du système.
Du reste, il existe des idées et projets qui prévoient un fonctionnaire public comme défenseur d’office et ceci toujours avec le but de rationaliser la justice et en diminuer les coûts.
Nous devons affirmer que le droit à un procès juste est le droit avant tout à une assistance juridique de qualité; cela comporte des coûts, comme le fonctionnement des hôpitaux publics ou les logements sociaux.
Mais ce qui ne peut être mis en cause, c’est la liberté des avocats.
A cette fin, le système de l’aide légale est le seul qui se rapproche d’un accès réel à la justice.
Pour conclure je voudrais rapporter une donnée qui concerne l’Italie.
Le nombre de jeunes avocats est en diminution constante, c’est absolument un nouveau phénomène. Les avocats inscrits au barreau diminuent aussi.
Notre profession n’apparaît plus comme un métier qui permette une entrée dans le monde du travail, difficile et dure mais possible.
Les coupes dans les ressources destinées à l’aide légale, comme l’augmentation des frais de justice, frappe en particulier les jeunes avocats, qui sont les plus pénalisés par cet état de

choses.
Ces dernières années, avec les collègues de l’aed, je me suis toujours étonné des énormes différences existant entre les systèmes juridiques européens.
Nous connaissons toutes les difficultés énormes que rencontre le processus d’intégration européenne.
Les choix néolibéraux ont conduit à l’intégration monétaire totale, à la rationalisation du marché et à l’unification de l’antiterrorisme et des politiques répressives avec le mandat d’arrêt européen.
Au-delà de l’abolition partielle des frontières (Schengen), il n’apparaît pas que se soient faits de grands pas pour l’unification des droits au niveau le plus haut possible et ensuite pour une unité européenne réelle.
En particulier, il n’apparaît pas qu’il ait y eu des efforts pour rendre plus semblables les procédures, pas plus que pour rendre plus homogène le rôle des avocats.
Les seuls progrès dans ce sens sont arrivés par la jurisprudence des Cours Européennes, qui ont opéré de manière efficace et pénétrante pour obvier au manque d’intégration entre des systèmes juridiques différents, dans les limites qu’impose une législation inefficace et partielle.
Mais la défense et le développement d’un droit réel à l’accès à la justice doit être soutenu principalement par les Conseils de l’ordre et par les associations d’avocats, qui ont le devoir de conjuguer le principe du droit à l’assistance légale pour les pauvres avec le principe toutautantintangibledelalibertédel’avocat.

Gilberto Pagani
Avocat à Milan
Président d’honneur de Avocats Européens Démocrates

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Trial Observation: ISTANBUL – 23rd to 26th December 2013

In Istanbul, during Christmas, as international observer in a trial starting on the 24th of December against 22 Turkish lawyers of the ÇHD group. I go, sent by EDL (European Democratic Lawyers) a European association regrouping democratic lawyers’ associations in diverse European countries, sent also by LTI (Legal Team Italy), a small group of Italian lawyers (adhering to the EDL) whose experience begun during the demonstrations in Genoa, in July 2001, and whose work has been characterized especially by being present with its members in nearly all demonstrations, in which violations of rights are conceivable, sent as well by the UCPI (Unione delle Camere Penali), the largest and most representative lawyers’ association in Italy, even if it only regroups lawyers working on criminal law.

At the trial, around a dozen foreign lawyers and journalists are present, accredited by associations similar to those who have accredited me. There is a Spanish colleague of the EDL as well, a Belgian lawyer of renowned Progressive Lawyers Network, which has called for participation to observe the trial, and other German, French, Austrian and Dutch.

THE CONTEXT:

If you want a precise and synthetic idea of the relationship between Turkish lawyers and the government, it is sufficient to visit the office of the President of the Bar Association of Istanbul, look up and ask about the hole on the ceiling. “It was a bullet from a machine gun”, says the Dean, “it was shot by a military helicopter. It missed me by a few centimetres, while I was working at my desk. An aim capable of making American drones jealous.

On a larger scale, things do not get better. There are at least 4 inquiries lately concerning a great number of lawyers. There is trial at the moment (the hearings took place mid December) against 46 Kurdish lawyers, accused of defending their clients (members of the PKK) in their own language and therefore accused of membership in the PKK themselves. The above mentioned Dean of the Bar Association of Istanbul is also confronted with a trial starting on the 7th of January, together with 12 members of his board for abuse of authority, because they did not assume disciplinary sanctions against lawyers of his Bar Association as the government pretended. The lawyers we have all seen in a video last June, as they were dragged out of the Court of Istanbul, who were arrested and detained for days, were luckier: a judged decided there was not sufficient material to take them to trial. And finally, there are the 22 lawyers of the ÇHD for whom the three hearings during Christmas are held.

To give an idea how much the Turkish government appreciates real lawyers, on the 23rd December, a Dutch lawyer was expected from Amsterdam, as international observer, but she was sent back as “persona non grata”. The reason? Back in 1999 this lawyer won a trial in front of the EHRC concerning the composition of the special court, which condemned Oçalan, and which was composed also of military. After 14 years she is still “non-grata” for having defended well her famous client and having won the European trial.

THE ÇHD AND THE ACCUSATION AGAINST 22 COLLEAGUES

The ÇHD (Progressive Lawyers Association) is an association of lawyers, not only criminal lawyers, active in the whole national territory, with headquarters in Ankara and sections all over the place. The lawyers of this group (around 2200) defend demonstrators, house squatters, people whose homes are requisitioned in favour of real state speculation, labour procedures, sometimes under the aegis of trade unions, to summarize, as is usually said, they defend “the last”, from a social point of view. They define themselves “socialist revolutionaries” and they were founded in 1974, but were banned from 1976 to 1990 by the military regime. Currently, in front of the special court in Sivrili their principal error is to have defended members of the group DHKP/C, which committed a serious of violent attacks years ago. In January 2013, the Public Prosecutor of Istanbul ordered a blitz against them and put some of them in jail, amongst them, the President of the association, Selgiuk Kozacagli, and Presidents of other sections. The accusation is of membership in a terrorist association, the DHKP/C, of which some of them have assumed the defence. Sometimes even outside Turkey. In Belgium, in the mid 2000, a trial against international terrorism took place with totally favourable results for them. During the blitz, their headquarters in Istanbul were entered and searched. The Dean of Istanbul assisted the search, for his office is in front of the ÇHD headquarters. The police destroyed computers and documents, and took away everything they found. Lawyers who were simply there were attacked and dispersed with the aid of pepper spray. Some dozen lawyers were detained in jail and released a month later[1]. 9 of them are still in custody, those who had the major responsibilities in the association.

The accusation against the 22 lawyers of the ÇHD is 625 pages long, and includes not only indications on the violations but also elements that sustain this accusation. The crimes could be defined as “membership”, “support” or “external membership” in the terrorist organization DHKP/C, crimes with the penalty of 5 to 10 years of imprisonment, in one case a colleague is pointed out as instigator (from Belgium, where she resided at the time) of two homicides, for her, they have asked for a double life sentence.

The elements of material evidence of the accusation reside fundamentally on the declarations of “secret witnesses”. The “secret witness” is a well-known figure in these trials. His declarations are put together by the police, often under torture or intimidation and then transferred into the files of the investigation. The Public Prosecutor does not know their identity and neither does it appear in the files. The defence does not know their identity and neither does the judge. In general these declarations are very long, sometimes even hundreds of pages, and totally impossible to verify. The institution of the “secret witnesses” was introduced by an anti-terrorist law (Witness Protection Law), which gives the judge the faculty of taking precautions for the protection of witnesses. Even though the secrecy of witnesses constitutes an extrema ratio, it has become ordinary praxis. It is true that no condemnation can be based exclusively on the declarations of “secret witnesses”, but they constitute the axis of the accusation, to which other elements are added. These elements are often very marginal and to the eyes of a common observer, of little significance. In this case, the membership of the lawyers in the terrorist organization is supposed to be proven, for example, by the fact that some of them have attended the funeral of their clients, victims of clashes, or because they have protested for the health conditions of their detained clients, by the fact there are photos of them together, because they opposed the entrance of police agents who had no search warrant, or by their participation in international seminaries or conferences on political or juridical themes and especially by the fact that their clients decided to use their right not to declare in front of the police, prosecutor or judge[2].

Additionally, the accusation is based on some international documents from the years 1999 and 2003, which have appeared in the trial against members of the ÇHD in Belgium around 2005. The lawyers in this trial were absolved. These documents (evidently not of special significance) have been decreed “secret” in Belgium and therefore cannot be verified by the defence, so their origin, composition and the modality of transfer from Belgium to Turkey remains unknown[3].

All this evidence of the accusation is given to us by very active members of the ÇHD in a briefing the day before the trial, in a meeting held in the Bar association. They explain not only the accusation against their colleagues but also the composition of the special court, the anti-terrorist legislation and other useful information for the trial the next day.

THE DEMONSTRATION

After a press conference, to which we have also participated as international observer and the above mentioned briefing, a demonstration took place, not only on occasion of the trial of the following day, but also to protest against the continuous intimidation and the illegal treatment the lawyers suffer. The demonstration leaves at 19h from the headquarters of the Bar Association in the centre, on Istiklal Avenue and some 2000 lawyers participate in their robes, with leaflets, banners and torches. The demonstration is opened by members of the Bar association holding a banner, reading “They will not keep us quiet”. Slogans shouted: “Shoulder to shoulder against fascism”, “We are revolutionary and we are proud”, “We will not be quiet”. Shouting them, are very young lawyers, who do not look especially “revolutionary”. We walk up Istiklal Street up to Taksim Square (the one where the Gezi Park unrests took place) but halfway the police block us. They do not attack us, so we do not have to use the strange concoction of dishwashing liquid and limestone removal some young colleagues give us against teargas and pepper spray.

There is some tension, all the area –as we later notice- is full of policemen in their anti riot gear, but the President of the Bar Association stands on the top of a light van and holds a strong speech, which is highly applauded, not only by the lawyers but also by passers-by (it is rush hour in this central shopping area). “We will not arrive to Taksim, but Taksim is here, in each one of us”, this was one of the slogans during the Gezi Park protests. The policemen are shouted “take off your helmet, no pepper spray and then we can talk”.

I think it is appropriate here to introduce a consideration on the composition of these lawyers (although it merits much more space).

In Istanbul there are some 1300 lawyers: not many for a city of 15 millions inhabitants, if compared to Italian or Spanish lawyers. Some are young, many are women. The participation to the demonstration, as well as to the trial is massive. Massive was also the defence of the Gezi Park demonstrations. These young people[4] are very prepared and very determined to claim guarantees for their clients and rights for their profession. They do not seem to care too much for the form: under the robe there is hardly ever a tie. The experience of this trial, as well as those around the protest in Gezi Park certainly constitute an endowment, to be remembered in the future[5]. It is interesting to underline the tight relationship between ÇHD, a free and private association, and the Bar Association, of institutional nature: the policy of the government concerning justice is menacing for lawyers and the bar association realizes this as well.

Afterwards, we end the day with a wonderful dinner of mezze and kebab in a good restaurant, all together, invited by the Bar association.

THE HEARINGS

The colleagues of the ÇHD (those who are not imprisoned obviously) have organized well. We leave Taksim at 8 o’clock with busses in direction of the village of Sivrili, one and half hour away from the city in the direction of Edirne. We arrive in a hilly region, controlled by the military. The first controls (on the bus) take place quarter of an hour before our arrival to the court. The court is in the periphery of a detention centre, surrounded by a barbed wire fence and watchtowers. To give an idea, take the Roman prison of Rebibbia and multiply by 20.

The building of the court is new and well devised. The controls –at least for the lawyers- are not particularly severe. It is forbidden to take photos, but it can be easily bypassed. There is a big bar and a big canteen, wonderful toilets. The court is enormous with three judges and the Public Prosecutor on the side (but at the same height). An incongruous ionic gable in plaster surrounds the court, and there are two big flags on the side and two big screens a little further up. The accused are in what we could call the stalls area, the audience facing the judges on the opposite side, and the lawyers are on small stands on the two sides. The trial starts more or less punctually with the roll call of the accused. Of the nine detainees, five are women. Then it is the turn of the lawyers: it takes a long time because the present lawyers amount to five or six hundred, each declares the bar association to which he/she belongs as well as the fact they defend “the lawyers”, playing on the fact that the accused are lawyers but that they are also defending the status of lawyers. This is possible because there is no limit in Turkey to the number of lawyers each accused can have. Around 2000 lawyers had registered as defenders of the 22 colleagues, and there are at least 500 in the court (it will not get any less crowded in the following hearings). We, international observers get called as well, together with the different associations we belong to and we are made to sit in the stalls area, behind the accused. This is a privileged position to follow the trial. The ÇHD provides us with translators from Turkish to English, French or German: there is one every two observers and they change every 20 to 30 minutes.

The indications and agreements for these first three hearings are not to loose time in preliminaries and go directly ahead to the self-defence of the accused. In fact, in Turkey the trial begins with the version of the accused. In this case it is even more relevant because they are lawyers. So the defending lawyers ask that the 600 pages of the accusation be declared read. But the courts intends to give a short summary of the long document, underlining elements as the fact the orders arrived from outside Turkey for ÇHD as well, that these lawyers worked without hardware, but only from CD or external usb keys, or that they participated in international conferences paid by the organization, that as members of the ÇHD they were also members of the outlawed PKK, that the president visited a client in hospital because of his hunger strike, that even if not all were defended for free, the organization covered the fees of some of them. Of particular importance is the fact that in the past some of them belonged to the PLO (People’s Law Office- code name: bakery) considered the legal cover of the DHKP/C, which decided whom to assist, but also with which lawyers[6]. The relationship between ÇHD and PLO is the most critical point of the strategy of the accusation and it is worth to explore this element, even if it does not relate to most accused.

After lunch, President Selgiuk starts to talk, with some 300 pages in front of him, he talks well into the next morning. Other 8 detainees continue after him, with speeches that are more or less long. It is evidently a collective self-defence with a division of tasks as to not repeat the argumentation. Selgiuk is great orator, who refers to the bastions of occidental culture (from Dostoyevsky to Shakespeare, from Babeuf to Luis Blanc and many others) trying to convey the special role of the court[7]. “Everybody remembers the name of Socrates and Galileo, but nobody remembers the name of their judges” he says very efficiently. But it is also very efficient when he reads out all striking judiciary horrors since the Ottoman times, or when he describes with lively details of tortured detainees who were buried at night, so other detainees would not see the torture and death which derived from it. Or the story of two lawyers assassinated and how their arrest was a real kidnapping. He also cites constitutional principles[8]. The most efficient point is his summary: “The prosecution asks for a penalty and needs to construct a crime. This is its tragedy. Do not let it be your tragedy. We defy you to demonstrate your independence”. The issue of the theoretical construction to legitimate the raid against the lawyers of the ÇHD and afterwards to justify their detention and trial is in essence the issue of this case, which qualifies it as a real political issue, of particular importance because centred around lawyers.

The other 8 detainees talk more or less around the same line, but each one of them describes different areas (right to work, right to housing, right to demonstrate etc) giving the precise idea that the association aimed at a more extensive aim than just occasionally defending members of a terrorist association. Even if, I must admit, it had not happened to me for the longest time, to hear so many times the concepts of “capitalism”, “colonialism”, “bourgeoisie” and all the ideological concepts that we find somehow out-dated. It does not matter, for the defence seems efficient and well founded: the demand to be able to confront the secret witnesses is made with force: the claims regarding the role of the lawyer are also forceful. “You accuse us of making 175 of our clients use the right not to respond, but the accused were 400: who made the other 225 talk?”.

The third day of the hearings, the last 9 detainees speak, then around a dozen of the 500 defenders present. These interventions are short, and ask for the liberation of the clients[9] and to fully reclaim the role of defender as an independent role, ruled by internal rules, controlled by the bar associations. “You accuse 22 colleagues of not working correctly in certain trials” argues a defender, member of a Bar Association and host of the dinners offered by the Bar, “well, I have followed the same trials in the same way they have. Why am I not amongst the accused?”

All the interventions are followed in silence and attentively not only from the audience, mainly composed of family and fans, but also by the hundreds of colleagues, some parts are underlined with applauses. The President of the court calls twice not to shout slogans, but the atmosphere is warm in relation with the detainees: they are saluted, and kissed from a far, all the colleagues present participate. You get the impression it is a very important and significant trial for the Turkish lawyers. Not only is the President of the Istanbul Bar Association present, but also the Dean of the one in Ankara, Smirne, Adana and other cities. All of them talk briefly. The Public Prosecutor takes up the word but limits himself to consenting the liberation of six of the detainees.

The court retires at 19h. It only has to decide on the liberation of the detainees, it is not empowered to reformulate or reject the accusation, on which the main hearings will deal[10].

The three days of the trial (the next hearings will take place after many months) have taken place, while outside in the media and the streets some economic scandals echoed (very Italian, you might say), as sons, parents and friends of a Minister in charge were found with their hands’ in the cookie jar while the took bribes (the television shows the machine with which they counted the amount of money of the bribes, not even Ligresti did this here!) Ten ministers have to go, and the government of Erdogan seems weakened. There are demonstrations in all big cities, as at the time of Gezi Park, asking for the resignation of the whole government. In this context of uncertainty, might a special court, based on political criteria, like the one in Sivrili, not consider it convenient to distance itself from the lame governmental duck? Or will it come at its rescue with a strict decision?

The court enters at 21h: there is tension and agitation in the audience and amongst the lawyers. Four of them are freed, and five in jail, amongst them naturally President Selgiuk: there is general disappointment and the audience shouts slogans. A partial satisfaction for the experts, and I include the international observers, because the accusation has been somehow dimensioned.

A FIRST ASSESSMENT

Naturally, and even if they put at our disposition a very relevant quantity of information, it is difficult to assess a trial you do not know. I will try to clarify some points:

  • 1)  We are surely dealing with a political trial, based on a theoretical construction with the political aim of levelling the defence without taking account of the complexity of the subject accused: ÇHD association.
  • 2)  The trial is political because it takes place in front of a special organ like the Special Court, politically designed[11].
  • 3)  The trial, because of the modalities of construction of the evidence (secret witness with no cross-examination, electronic documents with no expertise, declarations given under torture etc) is far from the principles of a fair trial.
  • 4)  This trial is turning into an important moment in the construction of an awareness of the role of the defence and of his rights, therefore of the guarantees of the citizen. Around a free and private association of lawyers, a consensus of Turkish criminal lawyers is being created; It is clear for all what is at stake in this trial and the lawyers do not intend to see themselves loose rights and functions.
  • 5)  Amongst Turkish criminal lawyers grows the awareness of the need to obtain a really independent judge, away from the prosecution, which although formally independent, is only an extension of the government through the police. On the other hand, the need for a trial with rules permitting the verification of the evidence presented by the accusation.
  • 6)  The trial, this trial especially seems to me to be halfway between old and new (even if the old prevails), as somehow happens in Turkish society as well, which is cut across by the drive towards innovation (economic and social in every direction) but is continually brought back to models and values which are old and antidemocratic, especially by the political caste.
  • 7)  The role in this dynamic that lawyers have and in future might have (specially the criminal lawyers is fundamental and clear, for good or for bad, and for all deployments in the field[12]).

 

[1] In Turkey the position of a detainee in pre-trial detention is examined monthly.

[2] Pre-trial detention is not based on a decree, the evidence can be known months afterwards. In the case of the ÇHD lawyers, arrested in January, this evidence was given in July.

[3] The most specific evidence has been given to me by the Belgian colleague Jan Fermon, at the time defence lawyer and currently international observer.

[4] You can become a lawyer after studying for 4 years and an internship of a year, 6 months with a judge and 6 months in a legal bureau, afterwards you can demand entry into the bar association, where after a screening, generally positive, you can start practising. There is no specialization.

[5] It is worth to reflect (and I think it has not been done) on the role of lawyers in the new fights to affirm democracy in the whole Mediterranean area (Tunisia, Egypt, Turkey). If now you find in the first rows a new generation of lawyers, the older ones are no cowards either. This fact is new and extremely interesting.

 

[6] It is true that some members of the ÇHD have collaborated with the PLO in the past for short periods, but no one has doubted the legality of the association.

[7] The court is in fact a special court, even if it is provided for in the law and designated by the Superior Council of the Judiciary. Its competence includes terrorism, organized criminality and in general crimes committed in the national territory. It is worth reminding that the Turkish High Council of Magistrates and Prosecutors, HSYK, is composed of 22 members, amongst which, and by law, the Minister of Justice, who is the president, as well as undersecretary of the same minister. Of the rest only 5 are magistrates. This council decides on the careers, appointment and dismissal of judges and prosecutors. This composition is the result of a novelty of the Erdogan goverment and since then the interference of politics in the affairs of justice is stronger than before. The composition of this special court is one of the most delicate activities of the council.

[8] In Turkey, the current Constitution is the one enacted in 1980-82 during the military regime, with successive modifications, irrelevant and not particularly progressive.

[9] None of the detainees has asked directly to be set free, because in their opinion, this would have meant the recognition of the authority of this special court, and thus the request has been made in the technical terms of the defence.

[10] The court, like it used to happen in Italy until 1989, knows all the documents of the investigation, which are put at the disposal by the accusation.

[11] See note 7.

[12] Subjective side note: the trip was a tremendous backbreaker. Even someone like me, who is skilful, especially when travelling, in the difficult art of joining business with pleasure, has had to capitulate. We wake up at 6h30 to be in Taksim by 8h and take the bus to Sivrili, which takes an hour and a half to reach the Sivrili compound. The hearing starts at 9h30 and goes on to six, seven, even nine o’clock at night, interrupted only by a sandwich in the cafeteria, and then the trip back. The only pause, useful to talk with Turkish colleagues and the other observers in a relaxed manner, is diner. Afterwards you go to bed dead tired to wake up the next morning early.

But the greatest fatigue comes, I assure you, in following a hearing during 8 or 9 hours with the interpreter murmuring in your ear. You would like to ask some questions, and try to during the pauses, and you want to take notes and elaborate them to ask more questions. In summary, killed during Christmas. I also took some significant photos I can show you if the occasion arises.

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Observation Mission to Istanbul (22nd to 27th December 2013)

Issue: Anti-terrorist trial against 22 lawyers of the Turkish ÇDH association (Progressive Lawyers’ Association).

Venue: Silivri Internment Centre (1h30 away from Istanbul by bus)

Accreditation: accredited as observer by the EDL (European Democratic Lawyers) and the Bar Association of Barcelona.

INDEX

I.-        General Considerations.

II.-       The ÇHD.

III.-      The Trial.

IV.-      Preparation of the Trial

V.-       Concerning the trial and the court

VI.-      On the hearings

VII.-     Assessment and Conclusions

 

I.- General Considerations: The situation in Turkey is extremely difficult for lawyers, specially for Human Rights defenders, as well as for those who defend political causes. The internal political situation is very delicate due to the fight for power between different factions (Needless to say that one of the problems lies in the process of Islamization of the country). We witnessed a clear example during our trip, when the police repeatedly refused to obey the orders of the Public Prosecutor in the framework of an operation against corruption, in which members of the government where under investigation.

In Istanbul, 12 members of the council of the Lawyers’ Bar Association (amongst them, the Dean) are under trial because they refused to adopt disciplinary sanctions against lawyers defending those accused for events surrounding the demonstrations of Gezi Park, as the government and the judicial power demanded them to do.

A blatant fact, and which somehow synthesizes the situation: in the past days, the Dean of Istanbul, Umit KOCASAKAL, suffered an attack in his own office in the Bar Association, when a military helicopter shot a bullet that hit his desk. The dean preserves the bullet as proof of the event, because obviously nothing has been made known, nor has there been a serious investigation into the event. The international observers visit the office where it happened.

There are various trials against lawyers in Turkey. A few days before our observation mission, various hearings were held in the trial against 46 Kurdish lawyers accused of membership in the PKK: These lawyers have defended members of the PKK, and have tried to do so in Kurdish.

Concretely, the trial against 22 lawyers of the ÇHD is part of a large offensive against left opposition forces in the country in the framework of a rapidly progressing Islamization of Turkey. In this context, the ally of the government until now, Imam Fethullah Gülen (one of the allies of the AKP, Erdogan’s party), who oddly lives in the USA but has an enormous influence in internal politics, has begun to oppose the government’s policies.

The Islamization of society is reaching the army, which since the 20s (with Kemal ATATÜRK’s government and his Occidentalised constitution) was the guarantor of secularism in the State. This is the army, which, as they say in Turkey, attempts a coup d’état every 10 years. The last attempt ended with the trial of 200 militaries, which were judged in the same court in Silivri, in which currently the 22 lawyers of the ÇDH are under trial. All of this, in the midst of a society, which has thrown itself into wild capitalism and corruption, and the increase of Islamist charity/solidarity nets that make up for the shortages in goods and services caused by government policies. At first glance, there are enormous luxurious constructions in the outskirts of Istanbul with no access to services or urbanization of the land.

 

II.- The ÇHD: The 22 lawyers (9 of them have spent a year in jail in a severe regime of isolation) are members of the ÇHD. This association was founded on the 12th of March 1971. Its aim is “to develop law in the light of the historical evolution of humanity, on the basis of human emancipation and democracy, the construction of a judicial system based of social consciousness, to work to avoid any attack on fundamental rights, the right to life and dignity”. The ÇHD has 12 territorial sections and around 2500 registered members. Its areas of work are: the defence of workers’ trade unions, of workers criminalized for reclaiming their loan, of students excluded from educational centres, of political activists assassinated or mutilated because of a lost bullet of the police, as well as the defence of the families of these victims, of the victims of torture in the street or under detention, of the oppressed Kurdish people, of Kurdish politicians, and of Kurdish lawyers who cannot work. The ÇHD also follows environmental trials, like the HES projects (hydroelectric power), or the trials against enterprises of gold extraction with the aid of cyanide, the principal enterprises of cement and nuclear energy, and the defence of those who live in marginalized neighbourhoods and who end in the street because of so called urban development, the defence of victims of honour crimes and sexual abuses. The ÇHD further follows the trial against de Hrant Dink, an Armenian journalist who was assassinated six years ago (the responsible are free), they defend religious and ethnic minorities, socialists, revolutionaries and democrats, as well as those who have a different ideology and suffer oppression because of their opposition to the dominating system.

 

III.- The trial: The police, in the course of an operation ordered by the Public Prosecutor, entered and searched in the early hours of the 18th of January 2013 more the 15 law offices and homes, as well as the offices of the ÇHD in Ankara and in Istanbul. Finally, the following lawyers were detained: Selçuk KOZAGACLI, President of the ÇHD, Oya ASLAN, Zeki RÜZGAR, Taylan TANAY, President of the ÇHD in Istanbul, Güclü SEVIMLI, Guraya DAG, Gulvin AYDIN​​, Serhan ARIKANOGLU, Efkan BOLAC, Ebru TIMTIK, Barkin TIMTIK, Naciye DEMIR, Günay DAG, Sukriye ERDEN, Vangolu KOZAGACLI and Özgür YILMAZ. At the time of the operation, the President of ÇHD Selçuk KOZAGAÇLI was in Syria. When he found out what was happening, he voluntary came back on the 01/21/13 and was detained while still on the plane.

They were accused of membership in the DHKP/C organization (Front for the Liberation of the Revolutionary People), of profiting from the privileges of lawyers, as well as of training terrorists in their offices. The judicial investigation was closed on the 18th of July 2013. The 22 lawyers risk high prison sentences, as an example:

– Ebru TIMTIK, life sentence

– Selcuk KOZAGACLI, from 16 and 23,5 years of prison

– Taylan Tanay , from 21,5 to 42 years of prison .

The Turkish bar association has publicly protested against this trial.

The accusation of the Public Prosecutor is full of references to the professional work of the lawyers and they are identified with their clients and the activities of these. The lawyers were accused of “defending a great number of members of the DHKP/C organization“. The Security Division has tried to prove these allegations on the basis of statistics. As an example, and according to police sources, between 2010 and 2012, 288 of the 470 persons detained for belonging to the DHKP/C, were defended by the People’s Legal Office (HHB). All of them made use of their existing fundamental right not to declare in police headquarters.

The publication of articles by these lawyers in several legal journals is considered evidence of their membership in the organization (diverse articles and information on Selçuk Kozağaçlı were published in two diaries of the DHKP/C association and in other media).

In the context of this judicial logic, the accusation identifies perfectly legitimate activities of these lawyers with actions of terrorist character. This identification/assimilation is prohibited under article 18 of the Basic Principles of 07/09/90 adopted by the 8th Congress of the United Nations on the Prevention of Crime and the Treatment of Offenders in La Habana: “Lawyers will not be identified with their clients or their clients’ causes as a result of their professional work”.

The politics of the government and the intoxication of public opinion violate the presumption of innocence. The police in Istanbul have released information on the private sphere of the lawyers detained.

The accusation is based on documents –mostly electronic- given to the Turkish authorities by the Belgian judicial authorities, and their exact origin or address is unknown. They were written in 1999 and 2003 and are called “the Dutch and Belgian documents”: These documents were sent to Turkey on the 5th of February of 2007. Nevertheless, no inquiry was opened against the People’s Legal Office (HDD) until 2012, after having this information for 6 years. The author of these writings is unknown and code names are used, which are deciphered without reference to the system applied. Obviously such ambiguous material evidence, produced in the trial in an irregular way cannot be taken into account by legal judges.

The searches were also irregular, because the 130th section of the Law of Criminal Procedure (CMK) requires a “court” for the entry into law offices. This particular disposition is also contained in the code of Turkish lawyers. The search warrants were unclear and imprecise without indication of the allegedly accused person. The house searches were carried out without the presence of a lawyer, Public Prosecutor, or Dean of the lawyers’ bar association present. The presence of the Dean in these house searches is mandatory. Equally, during the house search in the ÇHD offices, the Dean of Istanbul was denied entry.

The access to the file has not been permitted neither to the defence nor the accused until the end on the inquiries. Art. 153.2 of the Law of Criminal Procedure permits the restriction of the rights of the defence and in particular to access certain elements of the declaration, but only in cases were an absolute need of the investigation justifies it.

In jail, there are cameras installed in the cells filming 24h a day. The lawyers are under a regime of isolation. The men are in high security prisons, while the women are in “normal” jails.

The situation being as it is, it is to be clearly stated that the regime in jail, the investigation, as well as the accusation violate basic principles of the defence and preclude a fair trial.

 

 

 

  1. – Preparation of the Trial:
  2. – The trial is held in the 23rd section of the High Criminal Court of Silivri (Criminal Court Campus) against 22 members of the ÇAĞDAŞ HUKUKÇULAR DERNEĞI (ÇHD): Selçuk KOZAĞAÇLI, Taylan TANAY, Barker TİMTİK, Ebru TİMTİK, Oya ASLAN, Günay DAG, Naciye DEMIR, Şükrüye ERDEN, Nazanin BETULIA, Vangölü KOZAĞAÇLI, Özgür YILMAZ, Avni Güçlü SEVİMLİ, Guraya DAG, Gülvin AYDIN​​, Efkan BOLAÇ, Serhan ARIKANOĞLU, Zeki RÜZGAR, Mumin Özgür GİDER, Metin NARIÑO, Sevgi SONMEZ, Alper Tunga SARALA, Rahim YILMAZ and Selda YILMAZ.
  3. – Foreign Observers: present are a German lawyer (Thomas Schmidt) of the ELDH, 2 lawyers (Dúndar Gürses and Hans Langenberg) of the Dutch association Lawyers for Lawyers, a Belgian lawyer (Jan Fermon) secretary of the AIJD, an Italian lawyer (Ezio Menzione) of the EDL (European Democratic Lawyers), Legalteam Italia and Vicepresident of the UCPI (Unione Camere Penali Italiane), a French colleague member of the council of the Bar association of Paris (Carbon de Sèze) and other lawyers from Germany and Austria in personal capacity.

C.- Briefing in the Bar Association in Istanbul: The 23rd of December, the lawyers involved in the trial provide us with a technical explanation on the trial and on Turkish anti-terrorist law. The Turkish law of 1991 gives a very abstract definition of terrorism, in which glorification of terrorism is included and that remits to General Criminal Law when the action contended is not contained.

The court (3 magistrates) constitutes a special/exceptional jurisdiction and is the heir of the State Security Court (2 judges and a military judge).

The elements of evidence of the accusation can be defined as highly irregular:

1.- Secret witnesses (who have no basis in Turkish law), and can only be verified by the court. They have declared in other courts without any defence present and they will not declare in the hearings. Thus, the defence has not been able to question them under the principles of immediacy and contradiction. This evidence is crucial.

2.- Included in the accusation are documents sent by mail from Belgium (the Dutch and Belgian documents), dated back to 1999 and 2003, without any mention of source or reception and the treatment they have received after 6 years in the hands of the police. The originals are not available. These documents served as evidence in another trial in Belgium, where part of the accused were absolved of membership in a terrorist organization (ne bis in idem). According to the accusation the names of the accused appear in code. The system used to decipher them is unknown.

D.- Before the briefing, a press conference is held in the Bar association of Istanbul with a very active participation of the Dean. Afterwards, a demonstration takes place with hundreds of lawyers in robes, which is blocked by a disproportionate police presence long before arriving to its formal destiny, Taksim Square. The Dean of Istanbul, who participates together with members of the council, holds a very enraged speech concerning the role of lawyers in defence of liberties from the top of a car in the middle of the street and in front of the Police, accusing them of defending fascism.

 

  1. – On the trial and the court:

The judges are seated under enormous golden letters: JUSTICE IS THE BASIS OF THE STATE (Adalet Mülkün Temelidir). This is a specially authorized court (Özel Yetkili Mahkeme). The president of the trial seems especially appeasing from the outset and the fear arises that this might be but an interested way of acting, because the executive has already written the sentence beforehand.

One of the elements creating debate and complaint, for it represents an attack to the division of powers, is the form, in which the members of the court are chosen in this type of trial. They are chosen by the High Council of Judges and Prosecutors (HSYK), which is composed by 22 members: the Minister of Justice (President), a member of the Secretariat of the Minister of Justice, 10 Judges of the first stage of proceedings, 3 Judges of the Appeal courts, 2 members of the State Council, a member of the Academy of Justice of Turkey, and finally 4 jurists or lawyers chosen by the President of Republic.

The gravest accusations are those of assassination of policemen, injuries and membership in a terrorist group (also outside Turkey). One of the evidence is based on the fact that the accused appear under code names in the Dutch and Belgian documents of 1999 and 2003. These have been deciphered without us knowing by whom or how, but they are the basis of the accusation of being the political arm of the DHKP/C organization.

The idea of the accusation is simple: to transform into solid facts a multitude of small facts, insignificant and without any connexion or incrimination. The fact of attending demonstrations, to chant in them constitutes an incriminatory fact. Attending the funeral of their clients, accused of membership in terrorist organizations is supposedly an incriminatory fact. Other evidence is based in the entrance and search of the law offices, where allegedly a poem was found, which talked about lawyers and terrorists. The fact of assisting their clients to make use of their right not to declare (this right is recognized by Turkish law) in front of the police is further considered suspicious. In the accusation, one of the suspicious facts committed by the President of the ÇHD is described as: proposing a strategy in the terrorist organization because of declarations as: “Torturing an injured person is illegal, independently of the accusation. We follow these events with attention”. According to the accusation to say that “torture is a crime” is an act that proves membership in a terrorist organization.

It is not allowed to film or record in the Court.

 

VI.- On the hearings:

On the 24th: all the accused are present. The special courtroom is of enormous dimensions and can contain more the 500 defence lawyers on both sides (in Turkey there is no limit to the number of defence lawyers for each accused). With the help of a microphone, which turns in the room, all the defence lawyers introduce themselves quickly to the court (this operation alone takes 1h30). The court and the public prosecutor are in the highest position in the courtroom. The international observers are made to stay – after consulting the court- together with their translators in the space of the public and therefore prevent the presence of the audience in the small place dedicated to it (150 persons). The area for the accused can contain up to 200 persons (some months before, some 200 militaries were judged for an alleged coup d’état – the Ergenekon case). During the first pause, the Court permits international observers to place themselves in the middle of the room, behind the accused. Even so, they are far away. There are also various observers from different Turkish bar association.

The accused renounce to the reading of the accusation (625 pages). In spite of this, the court proceeds to read a summary of the accusation, which it has written up itself. This act gives the impression of partiality of the court and could have contaminated it. Finally, the President, declares that the fact the accusation has not been read in its entirety will not be considered a reason for appeal and that the parliament is already legislating in that sense. All the accused have asked their lawyers for a political and not a technical defence. Subsequently, the first accused Selçuk KOZAGAÇLI takes his turn to speak. His defence statement is 10 hours along and continues the next day. It is a heated discourse against misery, death, impunity and capitalism. He denounces the social situation in Turkey and the prosecution of dissidence, the attacks against lawyers because of the impossibility of detaining all his clients. He does not recognize the legitimacy of the courts, but at the same time he directs his speech at it. He affirms the right to revolt when the State attacks or does not defend its citizens, because the Constitution itself affirms the Right to Resist. He denounces the State crimes and includes his detention and kidnapping. He considers he is paying a high price for his professional and political activity. He expresses his interest in class war and not in official history. He accuses Justice for giving up and letting itself be humiliated by the State (especially in the Kurdish case). His speech makes constant reference to European intellectuals and politicians (the Antigone myth, Mark Roberts, Louis Blanc, Heidegger, Hegel, etc.).

After him, during the second and third day of hearings, the rest of the detained take their turn to speak. The speeches, less dense and extensive, continue with the denunciation of the situation of the disadvantaged and the illegality of the trial. They relate the case of a political prisoner tortured in the prison of Ankara, whose parents were not able to recognize due of the state of the corpse. Since the AKP (the Erdogan party) is in power more than 2000 people have died in jail. When the police kill somebody in the street, they extract the bullets of the corpse in public. They denounce the grave and lethal absence of security in the work of minors.

Once the defence statements are finished, at the end of the third day, the lawyers of the defence take their turn to speak. Around 15 of them intervene for around 15 minutes. Amongst these interventions, it is worth noting for its symbolic value, the intervention of the Deans of the different bar associations.

– End of the hearings: The three days of hearings conclude on the 26th of December at around 20h00. The court retires and around two hours later, they announce their decision to liberate four of the accused. The foreign lawyers comment that the trial might be taking another orientation and that the gravest accusations might start to loose entity.

 

VII.- Assessment and Conclusions:

Currently, Erdogan’s government suffers from important political instability and there are incidents in all big cities.

The absence of division of powers in Turkey is clear. The judiciary responds regularly and naturally to the decisions of the executive.

The police act with total impunity and corruption is a fact of the every day life of the Turkish people.

The internal institutional tension makes the social and political situation highly conflictive.

Days before, and because of protest against this trial and another one against 40 lawyers, those who demanded the liberation of their colleagues where evacuated of the enormous Palace of Justice in Istanbul with the help of teargas.

Currently, one of the most important points in the international agenda of the Turkish government is its (economic) intervention in the defence of jihadists fighting in Syria. The accused lawyers have all actively participated in denouncing this policy, together with the associations they integrate or defend. The three days of hearings (and other hearings, which will be held in the next months) are held with an enormous security device outside and inside the courtroom. In spite of this police presence, the foreign observers did not suffer any anomalous or in any way difficult situation. We were identified on the first day, and afterwards were free to move (we did not even have to pass the metal control).

Some important points:

1) Doubtless, this is a political trial based on the political aim of neutralizing Human Rights defenders. They are acting at the same time directly against the ÇHD for its socialist views, as well as for defending armed groups. The accusation includes declaration of secret witnesses and other people, who declared between 2011 and 2012. At the time, some of these witnesses presented a complaint against the General Direction of the Police in Istanbul for organizing a conspiracy. It is known that some of these secret witnesses have said, in the presence of a judge, that in the General Direction of the Police they were made to sign their confession under pressure, even if this point is still not clear. All of this is not included in the accusation.

2) The trial is also political because it takes place in front of an exceptional body, like the Specially Authorized Court, which is politically put together.

3) The trial is completely irregular in all that concerns the construction of material evidence: “secret texts”, which are not discussed in the courtroom, electronic documents, which are not available for an expert opinion, declarations obtained under torture, secret witnesses, who do not declare in trial etc. The confidentiality of the lawyer-client relationship has been violated with the use of methods of illegal investigation methods as phone tapping and secret witnesses. Eight months after the detentions, which took place on the 21st of January 2013, the Office of the PM in Istanbul opened the case by copying the police file. This contained a lot of rumours and distorted information. The material evidence has been mainly obtained through illegal methods. The construction of the trial in its totality is far from the principles of the criminal trial as it is described in art. 6 ECHD (Turkey is member of the Council of Europe since 1949).
5) It is considered necessary to obtain an independent court, especially from the accusation, for despite its formal independence, it is in reality an extension of the government and the police. The other underlying idea is that it is necessary to create certain rules to be able to verify in court the evidence presented by the public accusation. Furthermore, the way of choosing the naturally competent court is totally perverted by the intervention of the executive (the High Council of Judges an PM – HSYK) in this process.

6) The trial reflects Turkish society, with a great drive towards economic and social innovation, but continuously impregnated by oligarchies and undemocratic models and values.

7) The criminalization of lawyers: as evidence, the accusation provides graphics relating to the political tendencies of the clients of the lawyers. Furthermore, they use statistics concerning the number of clients who used their fundamental right not to declare. The accusation is based on the fact, not sustained by material evidence, that there exists an organic relationship between the People’s Legal Office (HHB) and the DHKP/C. They consider that the HHB is a under unity of the organization in the legal area, and therefore the accused lawyers would be part of the organization.
8) The investigation is characterized by numerous illegalities: in this trial there have been unjustified and grave restrictions of the right to a defence (in violation of art. 6 of the ECHR.

 

9) The degrading and inhuman treatment of these lawyers during police detention. In addition, the police took saliva samples of the accused as well as a blood sample from the colleague Selçuk KOZAĞAÇLI without reason, the accusation had not asked for them and it is currently unknown for which crimes it might serve as evidence (violation of art. 5 of ECHR).

10) It can be affirmed according to the this trial observation, that since the start of the trial there have been systematic violations of the right to the presumption of innocence and that the work of the lawyers accused has been illegally criminalized on the one hand because of the intromission of the executive power in the judiciary and on the other hand, because of the impunity with which the Turkish security forces act.

Barcelona, ​​27th of January 2014.

Robert Sabata i Gripekoven

lawyer

annex:

– list of the accused with specification of the crimes they are accused of and of the corresponding articles of the Turkish criminal code (in English).

Note: the trip was hard and exhausting. The hearings are never ending in a context, which is dense in all senses, and it is very difficult to understand the simultaneous translations (murmured in the ear) in spite of the good work of the translators.

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TO THE SPANISH AUTHORITIES

PETITION
WITH URGENT REQUESTS TO THE SPANISH AUTHORITIES
PRESIDENT OF THE GOVERNMENT OF SPAIN, MR. MARIANO RAJOY BREY AND ALL MEMBERS OF THE SPANISH GOVERNMENT

3rd day of the Endangered Lawyers – 24th January 2013
European lawyers demand: Basque lawyers in Spain must enjoy the free exercise of their professional duties

During the last two decades more than 20 Basque lawyers in Spain have been kept in pre-trial detention, several of them up to almost 2 years. All the arrested lawyers were charged with terrorist crimes connected with ETA, or with insulting the Spanish state. All of them were either defence lawyers or human rights lawyers representing alleged members or supporters of ETA organisations. Later it turned out that most of these arrests were unfounded and unlawful. In almost all of the above mentioned cases the suspected lawyers were acquitted afterwards, or the cases were dismissed.

By arresting these lawyers the Spanish state not only prevented them from exercising their professional duties but also denied their clients the right to be represented by a lawyer of their choice. Both acts were a violation of human rights, under the European Convention of Human Rights Art. 6, Para 2, c and the UN Basic Principles on the Role of Lawyers, 1. ” All persons are entitled to call upon the assistance of a lawyer of their choice”, 18. “Lawyers shall not be identified with their clients or their clients’ causes as a result of discharging their functions.”

The organisations signing below have been informed that Basque lawyers, in politically sensitive cases were identified with their clients. In several cases where they had clients who were accused of ETA activities, the lawyers themselves were persecuted, arrested, detained and put under high pressure. Arrested lawyers were even detained incommunicado and could not even be advised and assisted by a lawyer of their own choice, on the days immediately after their arrest.

Spain is one of the countries where lawyers appear to be threatened because of the fact that some police officers, some media and even juridical authorities suggest that lawyers have to be persecuted in the same way as their clients. This is not only against the law and a threat to the Rule of Law, but it also creates the high risk that even lawyers falsely suspected of supporting ETA as well as real supporters are prevented from having a fair trial.

Therefore the organisations signing below ask that you pay close attention to these abovementioned violations of the rights of the defence – as guaranteed in many international and European Treaties (International Covenant on Civil and Political Rights, European Convention for the Protection of Human Rights and Fundamental Freedoms, Charter of Fundamental Rights of the European Union) ratified by Spain -, which are also a grave violation of the UN Principles on the Role of Lawyers, as adopted in Havana. AED and ELDH want to express their concern about the fact that these persecutions of lawyers which are continuing for many years have a structural character. We demand

1. The full implementation of all International and all European law ratified by Spain concerning the right to a fair trial, i.e. Art. 14 International Covenant on Civil and Political Rights, Art. 6 European Convention on Human Rights.

2. The full implementation of the Basic Principles on the Role of Lawyers i.e. Art. 7, 8, 16, 18

  •  That all persons arrested or detained, with or without criminal charge, shall have prompt access to a lawyer, and in any case not later than forty-eight hours from the time of arrest or detention.
  •  All arrested, detained or imprisoned persons shall be provided with adequate opportunities, time and facilities to be visited by and to communicate and consult with a lawyer, without delay, interception or censorship and in full confidentiality. Such consultations may be within sight, but not within the hearing, of law enforcement officials.
  •  That lawyers shall not be identified with their clients or their clients’ causes as a result of discharging their functions.
  •  The Spanish State shall ensure that lawyers ( a ) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; ( b ) are able to travel and to consult with their clients freely both within their own country and abroad; and ( c ) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.
  1. Full implementation of the conclusions in the reports of the European Committee for the Prevention of Torture and the UN Special rapporteurs.
  2. To abolish the use of incommunicado detention, cf. Art. 3 ECHR
  3. To stop the disproportionate use of pre-trial detention and pre-trial detention without a full

    consideration of whether detention is proportionate.

  4. To end the practice of secret legal proceedings, which severely restrict access to the details of

    the case, including the charges and evidence in the case until up to 10 days before the closing of the investigative phase. For example :refusal to explain the charges against the arrested and refusal to hand over the files)

  5. An independent commission to investigate the violation of the rights of lawyers in Spain, in particular of those who have been or are still are ,or will be kept in detention.
  6. The release of all lawyers whose detention is found unjustified by this commission and a compensation for human rights violations which they have suffered.

Prof. Bill Bowring, barrister, President of ELDH, London (UK)

www.eldh.eu

Mr. Frédéric Ureel, advocate, President of AED-EDL, Farciennes (Belgium)

www.aed-edl.net

FOR MORE INFORMATION :

  • Mr. Hans Gaasbeek, advocate, Vice President of AED, Haarlem, Netherlands, Phone 0031 6 52055043, hgaasbeek@gaasbeekengaasbeek.nl
  •  Mr. Thomas Schmidt, advocate, ELDH Secretary General, Düsseldorf, Germany, Phone 0049 211 444001, thomas.schmidt@eldh.eu

     

     

     

     

     

    Note–The Day of the Endangered Lawyer is a project, launched in 2010 by the commission defence de la defence of the AED/EDL (European democratic lawyer confederation). The goal is to direct once in a year international attention towards the worldwide harassments, persecutions killings and threatening of lawyers, while performing their professional duties. Since 2012 this is a joint project of AED and ELDH. Other Lawyers and Human Rights organisations are welcome to join.

Posted on

Great success of the day of the endangered lawyer

On the 24th of January, hundreds of lawyers demonstrated in front of Turkish embassies and consulates all over Europe to protest against the attacks suffered by Turkish lawyers.

Around fifty lawyers were arrested in Turkey in November 2011. They were accused of complicity with their clients who are part of the KCK network (Turkish civil society) and are accused of terrorism. Thirty six lawyers are still in prison.

Three lawyer- and jurist-associations in Europe – European Democratic Lawyers, European Association of Lawyers for Democracy and World Human Rights, and the Human Rights Institute of European Lawyers- have organized this protest on the anniversary of the assassination on the 24t h of January 1977 of lawyers in Madrid.

The rallies of lawyers in their professional gowns took place in front of Turkish embassies and consulates in La Hague, Amsterdam, Brussels, Paris, Rome, Milan, Berlin, Hamburg, Düsseldorf, Madrid, Barcelona, Bern and Athens. Lawyers gathered in Athens were questioned by the police for some hours.

The three associations have addressed to the Turkish authorities, through its diplomatic representations, a demand to repeal the current anti-terrorist legislation, a legislation which is contrary to Human Rights and Civil Liberties. Moreover, the lawyers demanded the Turkish authorities to stop the attacks and intimidation of lawyers and to authorize the presence of legal observers in political trials.

27th of January 2012