AYTAÇ ÜNSAL has to be released

Berlin, Barcelona, Madrid, Utrecht, Paris, Rome, Brussels, Athens, 16th December 2020

It is unacceptable that lawyer Aytaç Ünsal, convicted in an unfair trial, has been tortured and sent to prison despite his health conditions. Our colleague has to be released immediately.

People’s Lawyer Aytaç Ünsal, was taken into custody in Edirne in the evening of the 9th of December 2020. Previously, on the 3rd of September 2020, he had been released by the Court of Cassation, which postponed the execution of his sentence due to the deterioration of his health as a result of his long hunger strike (213 days) demanding the right to a fair trial. The other lawyer who went on hunger strike with him, Ebru Timtik, died from her prolonged fast.  

Recently, on the 23rd of November, police raided the house where Aytaç Ünsal was being treated. The raid put him on high risk of infection due to the Covid-19 pandemic and the collapse of his already weak immune system. Furthermore, Aytaç Ünsal’s colleagues, who were present in the house during the police raid, were also detained and their belongings plundered.

Aytaç Ünsal, in very fragile health conditions as a result of the hunger strike, was tortured by the political police when he was taken into custody in Edirne. Our colleague was taken off the vehicle and laid on the ground, stepped on, and his head hit the asphalt ground. Due to this fall, Aytaç Ünsal’s face and various parts of his body were injured.

AED/EDL calls on the Turkish authorities to restore the rule of law and stop the practice of targeting lawyers. By aggressing the Defence, personified in this case by Aytaç Ünsal, Turkish authorities are in fact attacking the rule of law and human rights in Turkey.

It must be highlighted that Aytaç Ünsal has been attacked in his role as a human rights defender and we therefore call on the Turkish authorities to let him, as well as all other lawyers, to work freely and safely.

The international community is alarmed by the way Turkish judiciary displays, especially in terrorism-related cases, unprecedented levels of disregard for even the most basic principles of law, such as presumption of innocence, the necessity of a crime to justify a punishment, the non-retroactivity of crimes and the principle of non bis in idem (that is, not being judged for the same facts twice, as is the case in two ÇHD trials). At the same time, procedural guarantees such as adversarial proceedings, equality of arms and the right to a lawyer, are clearly and permanently eroded in these trials against lawyers.

Therefore, we call on the Turkish authorities to guarantee the independence of lawyers, and to protect procedural fair-trial guarantees. Furthermore, we raise concerns about recent developments jeopardising the effectiveness of the defense of human rights in Turkey. We stress the importance of civil society organisations and human rights defenders in a democratic society, as a vital and fundamental body for the defence of fundamental rights.

Finally, AED/EDL would like to draw attention to the worrying information we have received concerning the arrest and detention of human rights lawyers working for the non-governmental organization People’s Law Office (HALKIN HUKUK BÜROSU) under accusations of membership in a terrorist organization.

According to the information received:

We express grave concern regarding the allegations of arrest and prosecution under accusation of membership in a terrorist organization of the above-mentioned lawyers of the People’s Law Office. Moreover, serious concern is expressed at the mounting number of human rights defenders and lawyers under investigation for alleged links to terrorist organizations in Turkey, which seems to evidence a pattern of using this type of offence to target individuals and organizations legitimately expressing dissent with the policies of the current Turkish Government.

We declare the detention of this Human Rights defendants arbitrary, and we demand the Turkish Government to take all necessary measures to guarantee their right not to be deprived arbitrarily of their liberty and to ensure fair proceedings before an independent and impartial court, in accordance with articles 9, 10 and 14 of the International Covenant on Civil and Political Rights (ICCPR), ratified by Turkey on 23 September 2003.

We would also like to draw attention to the Basic Principles on the Role of Lawyers, which stipulate that governments have the duty to ensure that lawyers are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference, and that lawyers 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 (Principle 16).

We would lastly like to highlight the fundamental principles set forth in articles 1 and 2 of the UN Declaration on Human Rights Defenders, which provide for the right to promote and to strive for the protection and realization of human rights and fundamental freedoms.

In view of the urgency of the matter, we urge the Turkish authorities to safeguard the rights and life of lawyer Aytaç Ünsal, in compliance with international instruments and to free him immediately.

We urge the Turkish authorities to provide clear information on the measures adopted to respect the fundamental rights and life of Aytaç Ünsal.

Founded in 1987, the Association of European Democratic Lawyers (AED) is a confederation of trade unions and lawyers’ organizations with the same democratic, modern and humane ideals in Europe. The AED intends to defend the rights of citizens by preserving the independence of lawyers with regard to any political, social, economic or ordinal power. As a professional organization, its international purpose is to ensure respect for the rights of the defense and, in particular, to safeguard the physical integrity and political and economic freedom of lawyers. The association also works to ensure that all individuals have access to national and international judicial appeals, particularly those who are in the most precarious situations and whose basic rights are not recognized or poorly recognized.

MEMBER ASSOCIATIONS:

– Syndicat des Avocats de France (S.A.F.- France)

– Republikanischer Anwältinnen und Anwälteverein (RAV – Germany)

– Associació Catalana per a la Defensa dels Drets Humans (A.C.D.D.H- Catalonia)

– De Vereniging Sociale Advokatuur Nederland (VSAN – Holland)

– Syndicat des Avocats pour la Démocratie (S.A D. – Belgium)

– Asociación Libre de Abogados y Abogadas (ALA – Madrid)

– Legal Team Italia (L.T.I. – Italy)

– Çağdaş Hukukçular Derneği (ÇHD – Turkey)

– ΕΝΩΣΗ ΔΙΚΗΓΟΡΩΝ ΓΙΑ ΤΗΝ ΥΠΕΡΑΣΠΙΣΗ ΤΩΝ ΘΕΜΕΛΙΩΔΩΝ ΔΙΚΑΙΩΜΑΤΩΝ (Greece)

– Komaleye Hıquqnasên ji bo azadiyê (ÖHD – Kurdish)

http://www.aeud.org

https://www.facebook.com/aed.edl1987/

twitter: @AED_EDL

telegram: https://t.me/AED_EDL

Joint Statement -LAWYER NASRIN SOTOUDEH

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We, the undersigned 26 Bar Associations, Law Societies, and organisations supporting the legal profession of over 14 countries, stand in solidarity with our Iranian colleague Nasrin Sotoudeh and other lawyers in Iran who are being persecuted by their Government for carrying out their profession diligently and in accordance with the law.

On 13 June 2018, Ms. Sotoudeh was arrested at her home in Tehran and taken to Evin prison. On 30 December 2018, she was tried in absentia and without access to a legal representative of her own choosing by the Revolutionary Court in Tehran on charges that included: “assembly and collusion against national security;” “propaganda against the state;” “encouraging corruption and prostitution;” and “appearing at the judiciary without Islamic hijab”. She was sentenced to 33 years in prison and 148 lashes.

Previously, in September 2016, Ms Sotoudeh had also been sentenced in absentia to 5 years imprisonment without access to a legal representative. She was only informed of her conviction two years later. Prior to that, in 2010, Nasrin Sotoudeh was also convicted and sentenced to 11 years imprisonment, was banned from practising as a lawyer, and had a travel ban imposed on her. In September 2013, after 3 years in prison, Ms Sotoudeh was released.

These repeated legal proceedings brought against Ms Sotoudeh constitute judicial harassment and are in clear violation of Iran’s international legal obligations. It is evident that Nasrin Sotoudeh is being punished by Iranian authorities for carrying out her legitimate professional duties, in particular as a legal representative of women’s rights defenders, religious minorities, and minors at risk of receiving the death penalty. The actions taken against Nasrin Sotoudeh also deprive her clients of their right to access justice in Iran.

Earlier this year, the Islamic Republic of Iran temporary released thousands of prisoners due to the Covid-19 pandemic. Overcrowding, lack of medical attention, and unsanitary prison conditions put prisoners at greater risk of contracting the virus. However, many human rights defenders and lawyers in Iran were excluded from such release and remain in detention. Ms. Sotoudeh began a hunger strike on 11 August 2020 in Evin prison to call for the release of prisoners held for political motives at risk of catching Covid-19. She was hospitalised due to her deteriorating health condition on 19 September 2020 and sent back to Evin prison on 23 September 2020 where she did not receive appropriate medical care. She ended her hunger strike on 25 September 2020 and was subsequently transferred to Qarchak prison on 20 October 2020. On 7 November 2020, she was temporarily released on house arrest on medical grounds. She has been suffering from low blood pressure, fluctuating blood sugar levels, and rapid weight loss and seems to have contracted Covid-19 in prison. On 1 December 2020, Nasrin was sent back to Qarchak prison

Iran ratified the International Covenant on Civil and Political Rights on 24 June 1975, which establishes binding obligations to respect and guarantee the right to be free from torture and ill-treatment, the right to liberty and security of the person, and the right to a fair trial. The UN Basic Principles on the Role of Lawyers establish that no lawyer should be hindered in carrying out his or her professional duties. Lawyers should be free to practise their profession and legally represent their clients without external interference and without being identified with their clients or their clients’ causes. 

We call on the authorities in Iran to:

  1. Immediately and unconditionally release Nasrin Sotoudeh and withdraw all charges against her, vacate any convictions and sentences imposed on her, and put an end to all acts of harassment against her; and
  • Comply with Iran’s international obligations to ensure that members of the legal profession can carry out their professional functions without harassment and improper interference, including judicial harassment.

The Law Society of England and Wales

International Bar Association’s Human Rights Institute

Abogacía Española – Consejo general

Council of Bars and Law Societies of Europe (CCBE)

Paris Bar

Conseil national des barreaux

International Observatory for Lawyers in Danger

Lawyers for Lawyers

Lawyers’ Rights Watch Canada

UIA-IROL (Institute for the Rule of Law of the International Association of Lawyers)

Bar Human Rights Committee of England and Wales

Geneva Bar Association

German Bar Association

Raoul Wallenberg Centre for Human Rights

European Association of Lawyers for Democracy and World Human Rights (ELDH)

Solicitors International Human Rights Group (SIHRG)

New York City Bar Association

Arrested Lawyers Initiative

Progressive Lawyers Association

Avocat.e.s Européen.ne.s Démocrates / European Democratic Lawyers (AED/EDL)

AIJA International Association of Young Lawyers

Human Rights Embassy (Moldova)

The European Criminal Bar Association

Défense sans frontière – Avocats Solidaires

Forum Penal – Associação de Advogados Penalistas

Syndicat des Avocats pour la Démocratie

OBITUARY – Ebru Timtik will always be in our minds and hearts!

Ebru passed away yesterday after 238 days on Hunger Strike. She fought until her last breath for the right to a fair trial and independence of lawyers. The Turkish State is responsible because it ignored her claims.

Last October we visited her and the other colleagues of the ÇHD in Silivri hight security prison (near Istanbul) with an International Delegation of lawyers, we spoke with her about her determination to continue denouncing all forms of injustice.

We know that the right to a fair trial has been violated in the so called ÇHD2 Case. We have seen, observing the trial, that the Court was unfair. The lawsuit was a masquerade (not enforcing procedural rules, nonsense statements of a secret witness were the base of the decision, and the verdict was given before the right of defence was exercised). The international delegation of Lawyers, in which AED-EDL and the Foundation Day of Endangered Lawyer participated monitoring the trial, has been expulsed from the Courtroom before the last statement was given by the defence lawyers and before the final decision.

The denying of the demand Ebru made for a fair trial made her choose the way of a hunger strike. This hunger strike was not meant as a special request for herself but for the whole profession of lawyers and for the Kurdish and Turkish people. When her situation was already very grave on the 14th of August a request to release Ebru and her colleague Aytaç Unsal was denied by the Constitutional Court of Turkey.

Everyone has to know that the death of Ebru could have been prevented. For all of us, her death will be remembered as a shame for the Turkish Judiciary.

The lesson we can obtain of Ebru’s death is that we must be more conscious to fight for fundamental Rights in Turkey and other Countries. Her action will help and motivate us to defend the right to a fair trial.

Ebru, your life was brilliant, your death is very sad, and your example is a light in this time of troubles in Turkey!

 

Rest in peace, our sister.

 

28.08.2020

Fact-Finding Mission on CHD Trials in Turkey

 

Breach of a fair trial, independence of the judiciary and principles on the role of Lawyers.

October 2019, Istanbul

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 the following 18 Turkish lawyers by the 37 High Criminal Court of Istanbul in March 2019:

– For “founding and leading a terrorist organization” – Barkin TIMTIK: 18 years and 9 months For “membership of a terrorist organization” – Ebru TIMTIK and Özgür YILMAZ: 13 years and 6 months – Behiç ASÇI and Sükriye ERDEN: 12 years – Selçuk KOZAGACLI (President of the ÇHD) : 11 years and 3 months – Engin GÖKOGLU, Aytac ÜNSAL and Süleyman GÖKTEN : 10 years and 6 months – Aycan ÇIÇEK and Naciye DEMIR: 9 years – Ezgi CAKIR: 8 years

– For “willfully and knowingly aiding a terrorist organization” – Aysegül CAGATAY, Yagmur EREREN, Didem Baydar ÜNSAL and Yaprak TÜRKMEN: 3 years 9 months – Zehra ÖZDEMIR and Ahmet MANDACI: 3 years, 1 month and 15 days (sentence reduced because of their presence at the hearing on 20 March 2019, unlike the other defendants).

The European lawyers of the monitoring team came from Austria, Belgium, Catalonia/Spain, Greece, Germany, France, and Italy. They represented, among others, two international associations of lawyers, two European lawyers’ organizations, the European umbrella association of bar associations, various national and regional bar associations and lawyers’ organizations.

These are their findings: REPORT

The lawyers of the monitoring team represented the following organizations:

  • 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
  • CNB – French National Bar Council (Conseil national des barreaux)
  • OIAD – Observatoire International des Avocats en Danger (The International Observatory
    of Endangered Lawyers)
  • UCPI – Unione delle 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 (NOAB)
  • Liège Bar Association
  • Vienna Bar Association

Covid-19 – No time to lose ! – Why imprisoned lawyers must be released immediately

The European Association of Lawyers for Democracy and Human Rights (ELDH) and the European Democratic Lawyers (AED-EDL) are European lawyers’ organisations with members in over 20 European countries, including Turkey. Both organisations have been monitoring court cases in Turkey for many years, especially the mass trials against lawyers of their two member organisations ÇHD – Çagdas Hukukular Dernegi – (Progressive Lawyers Association) and ÖHD – Ozgurlukcu Hukukcular Dernegi – OHD (Association of Lawyers for Freedom). The foundation The Day of the Endangered Lawyer’s goal is to promote the unobstructed practice of the lawyers’ profession anywhere in the world who, under repressive regimes come to the defence or support of clients whose human rights are at stake.

Currently, 7 lawyers of the CHD are detained (Selçuk Kozağaçlı, Behiç Aşçı, Engin Gökoğlu, Aytaç Ünsal, Aycan Çiçek, Barkın Timtik, Oya Aslan, Ebru Timtik; Sulçuk Kozağaçlı is the ÇHD President, a human rights attorney who received several Human Rights Awards. and Doğukan Ünlü, Halil İbrahim Vargül, Semra Özbingöl Çelik are lawyers of the ÖHD.

The worldwide spread of the C-19 epidemic does not stop at the prison gates. On the contrary, the overcrowding of prisons increases the risk of proliferation among prisoners and staff. The Turkish government has therefore rightly decided to release almost a third of the more than 300,000 prisoners from prison or place them under house arrest. However, those accused of supporting, being a member of or leading a terrorist organization are excluded from this measure. This decision also affects lawyers who, in the exercise of their professional duties, have represented alleged terror supporters in court.

The lawyers began a hunger strike on Feb. 3 in protest of the lengthy jail sentences imposed on them for terrorism charges and after the 30th day of the hunger strike, 4 of them announced a break. Presently 4 lawyers (Ebru Timtik, Barkın Timtik, Oya Aslan, Aytaç Ünsal), who are all members of the Progressive Lawyers’ Association (ÇHD), are on a hunger strike in prison, demanding a fair trial and justice for themselves and for their clients. All the lawyers were arrested in a September 2018 operation. Two of the lawyers have announced to start fasting to death on the 5th of April, that is the Day of Lawyers in Turkey.

Lawyers around the world and human rights representatives of international organisations have repeatedly appealed to the all governments to release prisoners as far as possible.

  • The UN High Commissioner for Human Rights urged governments and relevant authorities to work quickly to reduce the number of people in detention.
  • 32 Turkish bar associations demanded on 19 March 2020 that the Turkish government takes appropriate measures to protect the lives of the detainees from the spreading C-19 epidemic and to release them. The bar associations explicitly mentioned lawyers who have been imprisoned for political reasons.
  • Last week, more than 70 lawyers from all over the world followed the call of the International Association of Democratic Lawyer (IADL), of the two European Lawyers Associations ELDH, AED-EDL, and of the Haldane Society of Socialist Lawyers (England) for a video conference in solidarity with lawyers imprisoned for political reasons in Turkey, with interventions from Ayşe Bingöl of the Turkey Human Rights Litigation Support Project, Barbara Spinelli of Giuristi Democratici, and Şerife Ceren Uysal, of the Progressive Lawyers Alliance (ÇHD). The lawyers unanimously called for the immediate release of the lawyers detained in Turkey.

The Turkish Government should bear in mind:

  • Although the official number of victims of C-19 in Turkey is still relatively low, Turkey is the country with the fastest increase in the number of victims.
  • The lives of the imprisoned lawyers, including 8 lawyers of the ÇHD and 3 lawyers of the ÖHD, are acutely endangered by the spreading C-19 Pandemic and the prison conditions in Turkey.
  • Because of Ebru Timtik’s hunger strike against unjustified conviction, which has already lasted 90 days for (over 60 days for 3 of them) , her organism is weakened and the risk of death in case of infection is significantly increased. This also applies to the other 2 lawyers who have announced to start the fasting to death on April 5, 2020
  • Many observers of the trials against ÇHD and ÖHD lawyers came to the conclusion that the accusations lack any factual basis and were based on incorrect assessment of the evidence. They expressed severe doubts concerning compliance with the fair trial standards of the ECHR and the independence of the tribunals.
  • Even the competent Turkish court, initially had no reservations about releasing the defendants from custody during the ongoing proceedings. They were released. Only after a questionable exchange of judges was detention ordered again. There is therefore no justification for endangering the lives of the lawyers by the increased risk to them in detention.
  • The lawyers concerned have not yet been finally convicted. They have all appealed against their conviction. As long as the proceedings continue, they must not be treated as if their guilt had been finally adjudicated.

Under these circumstances, the immediate release of the detained lawyers is the imperative for the government if it is not to be responsible for serious damage to the health or even death of the detainees.

 

———-

European Association of Lawyers for Democracy and World Human Rights (ELDH),Thomas Schmidt (lawyer), Secretary General , Platanenstrasse 13, 40233 – Düsseldorf, Germany
PHONE +49 – 211 – 444 001, MOBILEPHONE +49 – 172 – 6810888, Email thomas.schmidt@eldh.eu, Web www.eldh.eu
Day of the Endangered Lawyer Foundation , Hans Gaasbeek, International coordinator Nieuwe Gracht 5a, NL 2011 NB Haarlem, Netherlands, Telephone: +31 (023) 531 86 57,,Email: hgaasbeek@gaasbeekengaasbeek.nl, Web: http://dayoftheendangeredlawyer.eu/
European democratic lawyers federation (AED-EDL), Robert Sabata Gripekoven,
Col·legiat 20381 ICAB C/ Provença, 332, 3er, 08037 – Barcelona
tel / fax (+34) 93 457 83 58, mòbil (+34) 619 30 43 77, http://www.aeud.org/ , robertsabata@icab.cat

Imprisoned Lawyers in Turkey: how can we show solidarity?

 

How to show solidarity with the situation of lawyers in Turkey? Most of the initiatives of the next months have been cancelled or postponed, to explore the possibilities of continuing our political work you are invited to participate in a zoom conference on Thursday 2nd of April.

 

 

 

 

 

 

CRIMINALIZATION OF JURISTS FOR THEIR PUBLIC DENUNCIATION OF TORTURE AND MISTREATMENT

The AED-EDL has been informed of the trial against Lorena Ruiz-Huerta, which has taken place on the 10th of February 2020. Lorena Ruiz-Huerta is accused of slander for statements she made on television in 2014, when she was a practicing lawyer and member of ALA, in which she stated that during her professional work as a legal aid lawyer she was aware of the usual praxis of wrongful acts against the rights of detainees by police corps. The lawyer was denounced and accused of the crime of slander by the Unified Police Union, the Union of the Guardia Civil and the Federal Union of Police, as well as by the Public Prosecutor’s Office.

Further, the AED-EDL has also learnt about the complaint of three prison-agents’ trade-unions in Catalonia against Iñaki Rivera, Director of the Observatory of the Criminal System and Human Rights (OSPDH), and the SIRECOVI project of the University of Barcelona, professor of law and researcher, for having stated in a television program that in the prisons of Catalonia there was torture, ill-treatment and abuse. This jurist who defends human rights has deserved the support of the International Federation of Human Rights (FIDH) and the World Organisation Against Torture (OMCT) in a joint statement on the 21st of December 2018. In their statement, they warned that the misuse of criminal law against statements and messages protected by freedom of expression and information had an inhibiting effect. On the 16th of September 2019 the World Organisation Against Torture (OMCT) issued a new urgent appeal.

The AED-EDL supports both professionals and denounces the criminalization of lawyers and jurists in the exercise of their profession and in their action to denounce the violation of human rights and fundamental freedoms, including the practice of torture and ill-treatment by public officials. The critical disclosure of these practices is part of the commitment of the legal profession to the promotion of human rights and fundamental freedoms and is protected by the freedom of expression and information, thus helping to inform the public and the public debate on the functioning of State institutions, according to point 23 of the Basic Principles on the Role of Lawyers (8th UN Congress on the Prevention of Crime and the Treatment of Offenders – Havana, 27 August to 7 September 1990) and as proclaimed, among others, by the Grand Chamber of the European Court of Human Rights in the case of Morice v. France.

Barcelona, on the 15th of February 2020

 

LA CRIMINALIZACION DE LOS JURISTAS POR SU LABOR DE DENUNCIA DE LAS TORTURAS Y MALOS TRATOS

La AED ha tenido conocimiento que el día 10/2/2020 tuvo lugar el juicio por delito de calumnias contra Lorena Ruiz- Huerta por unas declaraciones en televisión en el 2014, fecha en que era abogada en ejercicio y miembro de ALA, en las que manifestó que en el ejercicio de su profesión como letrada del Turno de Oficio había tenido conocimiento de la práctica habitual de actuaciones lesivas contra los derechos de las personas detenidas por parte de los cuerpos policiales. La abogada fue denunciada y acusada por el delito de calumnias, por parte del Sindicato Unificado de Policía, la Unión de Guardias Civiles y la Unión Federal de Policía, así como de la Fiscalía.

Por otro lado, la AED también ha tenido conocimiento de la denuncia de tres sindicatos de funcionarios de prisiones de Catalunya contra Iñaki Rivera, Director del Observatori del Sistema Penal i dels Drets Humans (OSPDH), y del proyecto SIRECOVI de la Universidad de Barcelona, profesor de Derecho e investigador, por haber manifestado en un programa televisivo que en las prisiones de Cataluña existía la práctica de la tortura, los malos tratos y las vejaciones. La criminalización de este jurista defensor de los derechos humanos, mereció el apoyo de la Federación Internacional de Derechos Humanos (FIDH) y de la Organización Mundial Contra la Tortura (OMCT) en un pronunciamiento conjunto de 21/12/2018. En él, alertaron del efecto inhibitorio del uso indebido del derecho penal contra las declaraciones y los mensajes protegidos por la libertad de expresión e información. El 16/9/2019 la Organización Mundial de la Tortura (OMCT) realizó un nuevo llamado urgente.

La AED muestra su apoyo a ambos profesionales y denuncia la criminalización de los abogados y de los juristas en el ejercicio de su profesión y de su acción de denuncia sobre la vulneración de derechos humanos y libertades fundamentales, incluida la práctica de la tortura y de los malos tratos por parte de funcionarios públicos. La divulgación crítica de estas prácticas forma parte del compromiso de la abogacía con la promoción de los derechos humanos y las libertades fundamentales y está amparada por la libertad de expresión y de información, colaborando a informar la ciudadanía y al debate público sobre el funcionamiento de las instituciones del Estado, según el punto 23 de los Principios Básicos sobre la Función de los Abogados (VIII Congreso de NNUU sobre Prevención del Delito y Tratamiento del Delincuente –La Habana, 27 de agosto a 7 de septiembre de 1990-) y como proclama, entre otras, la STEDH de la Gran Cámara en el caso Morice contra Francia.

Barcelona a 15 de febrero de 2020

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.

Harcèlement des Avocats

Les avocats européens démocrates (A.E.D.) expriment leur préoccupation et indignation face au harcèlement que subissent les avocats Paul Bekaert (Belgique), Michèle Hirsch (Belgique), Christophe Marchand (Belgique) et Gonzalo Boye (Espagne) en guise de représailles pour leur défense performante de l’ancien président catalan Carles Puigdemont et des membres de son gouvernement Clara Ponsati, Lluis Puig, Meritxell Serret et Antoni Comín.

 

Après avoir eu accès aux informations relatives à cette affaire, il est apparu que les avocats concernés ont été victimes de manifestations de haine et déclarations diffamatoires portant ateinte à leur réputation et à l’indépendance avec laquelle ils doivent exercer leur profession. Des menaces contre leur intégrité physique ont également été proférées.

 

Ces actes constituent une atteinte intolérable à l’exercice des Droits de la défense et aux droits reconnus par les articles 11.1 de la Déclaration Universelle des Droits de l’Homme, 14.3.b) et d) du Pacte international relatif aux Droits civils et politiques et 6 de la Convention européenne de sauvegarde des Droits de l’Homme et des Libertés Fondamentales.

 

Ils portent atteinte en outre, aux Principes de base relatifs au rôle du barreau, adoptés par le huitième Congrès des Nations Unies pour la prévention du crime et le traitement des délinquants tenu à La Havane du 27 août au 7 septembre 1990 (Garanties liées à l’exercice de la profession d’avocat:

16. Les pouvoirs publics veillent à ce que les avocats a) puissent s’acquitter de toutes leurs fonctions professionnelles sans entrave, intimidation, harcèlement ni ingérence indue; b) puissent voyager et consulter leurs clients librement, dans le pays comme à l’étranger; et c) ne fassent pas l’objet, ni ne soient menacés de poursuites ou de sanctions économiques ou autres pour toutes mesures prises conformément à leurs obligations et normes professionnelles reconnues et à leur déontologie.

 

17. Lorsque la sécurité des avocats est menacée dans l’exercice de leurs fonctions, ils doivent être protégés comme il convient par les autorités.

 

18. Les avocats ne doivent pas être assimilés à leurs clients ou à la cause de leurs clients du fait de l’exercice de leurs fonctions.).

 

La Recommandation n° R(2000)21 du Comité des Ministres aux États membres sur la liberté d’exercice de la profession d’avocat s’est prononcée en faveur des mêmes principes

(Principe I – Principes généraux concernant la liberté d’exercice de la profession d’avocat 1. Toutes les mesures nécessaires devraient être prises pour respecter, protéger et promouvoir la liberté d’exercice de la profession d’avocat sans discrimination ni intervention injustifiée des autorités ou du public, notamment à la lumière des dispositions pertinentes de la Convention européenne de Droits de l’Home.).

 

En effet, les Droits de la défense ne sont pas seulement garantis par la présence d’un avocat, mais aussi et surtout par son libre choix et la garantie qu’il pourra exercer sa mission sans être menacé, perturbé, contraint ou dénoncé pour avoir déployé la stratégie de défense qu’il considère la plus appropriée au cas et au moment concret.

 

L’A.E.D. exige que ce genre d’attaques cesse et s’adresse aux Barreaux correspondants pour exhorter les autorités espagnoles à adopter les mesures appropriées pour que ces avocats soient protégés dans l’exercice de leur profession.

 

Colmar, 3 septembre 2018.


La Abogados Europeos Demócratas (A.E.D.) expresan su preocupación y indignación frente al acoso que sufren los abogados Paul Bekaert (Bélgica), Michèle Hirsch (Bélgica), Christophe Marchand (Bélgica) y Gonzalo Boye (España) en guisa de represalia por su eficiente defensa del ex Presidente Catalán Carles Puigdemont y los miembros de su gobierno Clara Ponsati, Lluis Puig, Meritxell Serret y Antoni Comín.

 

Tras haber tenido accesos à informaciones relativas a este asunto, se ha podido comprobar que los abogados concernidos han sido víctimas de manifestaciones de odio y declaraciones difamatorias atacando su reputación y la independencia con la que deben ejercer su profesión. Amenazas contra su integridad física han sido igualmente proferidas.

 

Estos actos constituyen un ataque intolerable contra el ejercicio de los Derechos de la defensa y contra los derechos reconocidos en los artículos 11.1 de la Declaración Universal de Derechos Humanos, 14.3.b) y d) del Pacto Internacional de Derechos Civiles y Políticos y 6 del Convenio Europeo para la Protección de los Derechos Humanos y de las Libertades Fundamentales.

 

Estos hechos atentan además contra los Principios Básicos sobre la Función de los Abogados, aprobados por el VIII Congreso de Naciones Unidas sobre Prevención del Delito y Tratamiento del Delincuente, celebrado en La Habana, del 27 de agosto al 7 de septiembre de 1.990 (Garantías para el ejercicio de la profesión:

16. Los gobiernos garantizarán que los abogados a) puedan desempeñar todas sus funciones profesionales sin intimidaciones, obstáculos, acosos o interferencias indebidas; b) puedan viajar y comunicarse libremente con sus clientes tanto dentro de su país como en el exterior; y c) no sufran ni estén expuestos a persecuciones o sanciones administrativas, económicas o de otra índole a raíz de cualquier medida que hayan adoptado de conformidad con las obligaciones, reglas y normas éticas que se reconocen a su profesión.

 

17. Cuando la seguridad de los abogados sea amenazada a raíz del ejercicio de sus funciones, recibirán de las autoridades protección adecuad) no sufran ni estén expuestos a persecuciones o sanciones administrativas, económicas o de otra índole a raíz de cualquier medida que hayan adoptado de conformidad con las obligaciones, reglas y normas éticas que se reconocen a su profesión.

 

18. Los abogados no serán identificados con sus clientes ni con las causas de sus clientes como consecuencia del desempeño de sus funciones.).

a.Los abogados no serán identificados con sus clientes ni con las causas de sus clientes como consecuencia del desempeño de sus funciones.).

La Recomendación N° R(2000)21 del Comité de Ministros sobre la libertad de ejercicio de la profesión de abogados se ha pronunciado en favor de los mismos principios (Principio I – Principios generales sobre la libertad de ejercicio de la profesión del abogado 1. Se deben tomar las medidas necesarias para respetar, proteger, y promover la libertad de ejercicio de la profesión de abogado sin discriminación y sin interferencias impropias de las autoridades o del público en general, en particular a la luz de las disposiciones relevantes del Convenio.).

En efecto, el Derecho de defensa no sólo se garantiza mediante la presencia de un abogado sino, también y especialmente, a través de su libre elección y la garantía que podrá ejercer su misión sin ser amenazado, perturbado, limitado o denunciado por haber desplegado la estrategia de defensa que considere más apropiada en el momento concreto.

La A.E.D. exige que cesen este tipo de ataques y se dirige a los Colegios de la Abogacía correspondientes para que insten a las autoridades españolas la adopción de las medidas oportunas para que estos abogados sean protegidos en el desempeño de su ejercicio profesional.

 

Colmar, 3 de setiembre de 2018.