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.

 

 

 

 

 

 

WE WILL NOT BE A PART OF THIS CRIME!

Once again, Erdoǧan is using refugees as political pawns. Once again, human rights defenders from different fields and countries are witnessing an illegal and inhuman situation at the border between Greece and Turkey.

Official numbers are not available, however, it is clear that thousands of refugees, including a large number of minors, have been manipulated by Erdoǧan and are now stuck between two borders without the chance not only to access asylum procedures, but even proper food, clean water and a place to stay. There are serious reports about violence against migrants and it is also known that around a hundred people who have crossed the border have already been arrested by Greek authorities. Besides this new situation, the unacceptable situation in the Greek hotspots is still on going and people are dying in the Mediterranean Sea.

Once again it is necessary to remind European Governments of their obligation to adhere to the principles of international laws and human rights.

The current plight of migrants at the border between Turkey and Greece is not just the responsibility of these two countries. The European States are directly responsible for this crisis, in addition to the dire situation in Greek hotspots and/or the Mediterranean Sea. This disaster is a direct outcome of the unlawful and unofficial EU-Turkey Statement. This Statement should be cancelled immediately. There is no doubt that Turkey is not a safe country for migrants and declaring it safe third country is a clear violation of human rights. The “Safe zones” in Syria suggested by the Turkish state are contrary to international law.

A solution can only be found in Europe and without the participation of the Turkish Government. National politicians and EU representatives should immediately set xenophobia, populism and racism aside. These approaches lead to fascist solutions that are incompatible with our European values.

The right to seek protection and the right to live in dignity is the fundamental right of every single person whose life is under threat. European States have to provide access to international protection, not just out of humanistic sensitivity, but because they are legally complied to do so.

Therefore, the EU states and international organisations should not provide any support to the measures adopted by the Greek Government to suspend registrations of applications for international protection and deport without registration all persons entering Greece illegally. These acts violate international refugee and human rights law and find no support in the decision of ECHR in N.D. N.T. v. Spain (Applications nos. 8675/15 and 8697/15). Such manipulation of laws and reading of judgements endangers the rights of every European citizen and democracy and poses a fatal attitude towards persons in need of protection.

Greek courts have announced convictions of those arriving in Evros these days with up to 4 years imprisonment without suspension. These measures violate the Geneva Convention and raise serious questions in relation to due process and fair trial. European governments and international organisations should act.

 

Since the situation is worsening daily:

  • We are calling Greece to open the borders and stop using police violence against the refugees immediately.
  • We are calling for the immediate relocation of refugees from Greece to other states in Europe. The “take charge” system of the Dublin III Regulation could be used immediately, as well as other relocation mechanisms. In this regard EU budget should be used for these ends and not for FRONTEX operations aiming at intercepting and pushing back refugees and asylum seekers from the Greek sea and land borders.
  • We call for the cancellation of all criminal charges brought against refugees whose crime is to cross the border.
  • We ask European states to respect international and European law and human rights charters.
  • We call for the immediate abrogation of the unlawful EU-Turkey Statement.
  • We call upon everybody to take a position in this dramatic situation.

 

Yiota Masouridou, vice-president of AED, Athens states: “Since the adoption of the EU-Turkey Statement in 2016 EU Member States are collectively violating the principle of non refoulement. A human rights solution needs to be implemented now, by accepting refugees and asylum seekers in EU territory. Short term political solutions that disgrace Europe’s legal culture should be abandoned.“

And Turkish lawyer Ceren Uysal adds: “We are witnessing a crime against humanity. We strongly believe that it is necessary to act, protest and fight against the erosion of the rule of law and the violations of human rights”.

 

There is an on-going crime and we will not be a part of this crime!

 

Athens, Istanbul, Berlin, Amsterdam, Paris, Brussels, Rome, Madrid, Barcelona, 02nd of March, 2020,

 

 

Contact:

Giota Massouridou, Vice-President of the AED-EDL: massouridoup@yahoo.gr

Download the Statement

 

Signatories:

Avocats Européens Démocrates  Borderline Europe, Iuventa10,  Mission Lifeline , SeaWatch e.V., Alarmphone, Dutch Organization for Asylum Lawyers, Medico international e.V , Borderline Europe, The Dutch League for Human Rights, Foundation of the Day of the Endangered Lawyer, Lawyers’ Association for Freedom (ÖHD), Progressive Lawyers’ Association (CHD), Republikanischer Anwaltsverein (RAV), LegalteamItalia, ALA – Madrid, The German Association of Democratic Lawyers (Vereinigung Demokratischer Juristinnen und Juristen e. V./ VDJ), European Association of Lawyers for Democracy & World Human Rights (ELDH) Europäische Vereinigung von Juristinnen und Juristen für Demokratie und Menschenrechte in der Welt, Kritnet, Swiss Democratic Lawyers

WE ARE HERE SINCE 1974

After years of persecution and resistance, the CHD has decided to renew
the association.

 

ÇAĞDAŞ HUKUKÇULAR DERNEĞİ ORDINARY GENERAL ASSEMBLY

CONCLUDING STATEMENT

“WE ARE HERE SINCE 1974”

Our Association was closed down by the government in 2016. We had then announced that this was not a legitimate decision for us; we would not accept it. When our offices were looted, and the doors of our offices were locked up and sealed, “ÇHD does not exist merely in the offices”, we said. As we account for the hard process we have gone through we have the honor to keep to our word.

We are honored, that is correct. However, we are not surprised with the seamless will to struggle of our Association as well as its attitude in the face of the contemporary of state of affairs in our country. For this outcome comes naturally out of the power and legitimacy of our tradition. It is equally the immediate result of our faith in and aspiration for a just, free, classless world that does not welcome exploitation. In this process, some of our valued Bu members were held captive; they were tortured; they were convicted to ten year-long imprisonment. But we have persisted to convey to our friends and foes, to Turkey and to the whole world that another lawyering practice is possible and that ÇHD will never and ever withdraw from opting for this practice.

The Conference that we organized within the scope of the Ordinary General Assembly, on January 18, 2020 was turned into a vibrant platform for struggle where our decisiveness, our will to solidarity and resistance came to the fore, showing the impossibility to end the ÇHD by despotic measures.

The Ordinary General Assembly also showed that the ÇHD is not alone in its struggle; that it has hundreds of comrades who would join the struggle for a just world. The messages of friendship and solidarity, sent by many lawyers’ organizations to our Association are examples of this. The messages that we received from the workers in the tents of struggle, from the families of Soma miners, from the families of Çorlu train massacre, from the families of our friends who were taken from us in the October 10 Train Station massacre and in Gezi resistance once more confirmed the historical importance of the lawyering practice of the ÇHD. The messages of friendship, comradeship and solidary that we received from our colleagues in Italy, Portuguese, United States, Phillippines, Netherlands, Germany, Switzerland, Asia-Pacific countries, Catalonia, Greece who struggle with similar faith and decisiveness also showed the extent of our reach throughout the world, that we are part of a global comradeship. In this respect, the first conclusion that we have is as follows: We claim each and every concern of social opposition in the world, in general, and in Turkey, in particular! We claim the concern of each and every resistance tent, strike, boycott, the demands of a body, vanishing for justice, the demands of women, resisting on the streets, the demands of our colleagues in France, throwing their robes, the claims of the lawyers in Pakistan – our comrades who were killed – all our claims, too! They claim ours! The hope for free, just and bright features lies in such true solidarity.

“The Crisis of Capitalism, the Crisis Law”

The Ordinary Constitutive Assembly that we held under the title, “Crrisis of Capitalism, the Crisis Law” opened a space where we could underline the social dynamics of the present historical period and discuss the agendas of social opposition – to which the ÇHD has been a historical party – and the requisites brought in by these agendas. Many members of our Association have contributed significantly to these discussions with their presentations.

Assessing the presentations and discussions together we reached the following conclusions:

  • We are at a critical historical phase not only in Turkey but throughout the world. On the one hand, we observe the aggressive imperialist policies that increase with the deepening economic crisis. On the other hand, we witness the rise of resistance in different parts of the world. These developments point at the main lines of struggle and possible alliances in the coming years.
  • ÇHD, is the name for a certain practice of lawyering. In the process ahead of us, it should be the main mission of all its members to carry this practice of lawyering, developed by the ÇHD laboriously into the new period. ÇHD is the organization of the lawyers who are the workers of struggle, turning the law into a means for justice – and not those lawyers who approach the law as a technical asset. With such awareness we cite the following topics to be included in the agenda of the ÇHD:
  • ÇHD started its Ordinary General Assembly in the absence of our dear Chair, Selçuk Kozağaçlı, and our respectable members Behiç Aşçı, Aytaç Ünsal, Aycan Çiçek, Ebru Timtik, Barkın Timtik, Oya Aslan, Ayşegül Çağatay and Engin Gökoğlu since they were imprisoned. The first item of the ÇHD in the past, present and future shall be the freedom of their colleagues who were taken prisoner, who were taken hostage. It is certain that ÇHD should organize effective actions for the freedom of our colleagues who are imprisoned. It is also important that the ÇHD should also adopt an effective working style in matters listed below for the strengthening of social opposition – which is also significant for the freedom of our imprisoned colleagues. We shall not step back from the maxim, “Freedom to Imprisoned Lawyers”, until our last imprisoned comrade gains her/his freedom.
  • ÇHD shall continue to take sides with the workers and labor in the face of all attacks against the working class. It is clear that it should be the capitalists to pay for the crisis, not the workers. ÇHD believes in the legitimacy of the working class struggle; we shall not reduce the working class struggle to the laws and the courtrooms. We shall be in solidarity with the working class on this basis; we shall struggle in solidarity with the working class. We shall continue to be in solidarity with the working class whenever and wherever they are attacked, whenever and wherever they are hurt, whenever and wherever they stand up.
  • The suicides that span through the country is a concern for the ÇHD. ÇHD does not approach the suicides as individual cases; it knows that anti-capitalist struggle is the only bulwark against the increase in the number of suicides due to the crisis of capitalism.
  • The process of the State of Emergency (Olağanüstü Hal, OHAL) was used as a grounds to dissolve the public space and to continue with the neoliberal transformation. ÇHD acknowledges that its our duty to keep up with solidarity with the public workers who were dismissed from public service and who were almost pushed to die civil death.
  • The power bloc in Turkey is accelarating its attacks and violent practices against the Kurdish people. ÇHD, as its also stated in our by-laws shall defend the right of nations to self-determination. Pursuant to this principle we shall put solidarity with Kurdish people in every sphere and at every level among our prior duties in the coming period. ÇHD defines the imprisonment of the political representatives of Kurdish people and the appointment of trustees to the elected municipal administrations as part of colonial politics and a matter of political injustice. Our Association shall continue its stance against the war against the Kurdish people that involve occupation and annihilation in our country as well as across the borders. ÇHD shall stand against all kinds of aggressiveness by Turkey, of all reactionary-fascist countries in the region and cross-border imperialist forces against the will of the Kurdish people.
  • It is obvious that the region is under attack of the aggressive imperialist policies that are aimed to reshape it; to open up space for wars that would bring in evermore blood, hunger, poverty to the peoples in the region. It shall be one of the main duties of the ÇHD to adopt the maxim, mperyalist talan ve saldırganlık politikaları karşısında “war against the palaces, peace to the cottages” to be an active party to the anti-imperialist struggle that would enhance solidarity with the peoples in the region.
  • The environmental plunder, the right to the environment, and climate rights are the topics that concern us. ÇHD takes sides with all struggles against Channel İstanbul, hydroelectric power plants and similar practices that are environmentally destructrive.
  • Today in Turkey, the average number of women who are killed in domestic violence daily is five. The OHAL process brought in a period when violence against women and the LGBTIQ+ was increased and reinforced by the conservative rhetoric that has been circulated by the government. In the meantime, the courts have been functioning as mechanisms of impunity in cases of violence and rape. One of the topics in the ÇHD’s agenda for struggle in the new period is to eliminate the current impunity in the juridication concerning cases of gender-based violence.
  • Gender equality is one of the main topics of concern for ÇHD. This was true yesterday, and it still is true today. We shall develop the means for ensuring gender equality in every social sphere and to struggle against sexism.
  • Prisons shall be one of the main concerns for ÇHD’s struggle. This was the case in past; it shall be the case today. Today it is obvious that illegality is the norm; thus the prisons are filled with political prisoners. In our country, political prisoners are involved in actions, extending from hunger strikes to death fasts in order to defend and/or claim their most basic rights. ÇHD shall continue to work to defend the rights of the political prisoners and stand by them. All political prisoners who are imprisoned due to their claim to a classless, free and just world where exploitation is eliminated are ÇHD’s clients, friends and comrades.
  • ÇHD shall also follow the attacks against the profession. Lawyers are impoverished increasingly, lawyers-as-workers try hard to make ends meet, they are exploited. We shall not forget our colleague Gökhan Vural Arı who committed suicide. We shall keep struggling for our colleagues’ economic and social rights as one of the main topics of concern of the ÇHD.
  • The licences of legal apprentices are usurped. This usurpation is realized in an arbitrary fashion and a group of legal apprentices are tried to be prevented by the power-holders at the very initial stages of their career, since they are perceived to be “threats”. This attack grows out of a futile fear, but it has serious consequences. Eliminating against this attack shall be one of the main topics in ÇHD’s new period.
  • Enhancing the solidarity with the migrants and refugees shall clearly be a main topic of concern for ÇHD. Millions of migrants who have been turned into objects of bargaining by Turkey and the power-holders in Europe are also victims of racism that has been deliberately provoked by the same power-holders. ÇHD shall approach the rights and liberties of the migrants and refugees on an equal stand with the rights and liberties of citizens’ rights and liberties.
  • There is no jurisdiction in Turkey. Criminal jurisdicion is conducted directly by command; thousands are deprived of the right to just jurisdiction; their right to defence are restricted; they are imprisoned. In this period when coursehouses fall short of ensuring justice, it is the ÇHD’s duty to take sides with the rights struggles of the oppressed, repressed and whose rights are violated.
  • ÇHD is aware of the significance of the international solidarity of progressive lawyers. In this respect, it shall further develop the activities that it has already been pursuing. In this respect, we shall support our colleagues who are in resistance in France. In the meantime, we shall look for ways and methods to stand by the Pakistani democratic lawyers, to whom the Day of the Endangered Lawyers is dedicated in 2020. One step in this regard shall be active participation in the international action that will take place on January 24, 2020.

In the light of these statements and decisions, our General Assembly considers the letter sent by Selçuk Kozağaçlı as a statement and announces the following decisions:

From now on, ÇHD shall continue with its solidarity acts in the past, and “shall take its place in strike tents, in front of the morgues, in the faculty boycotts, behind the barricades, in front of the queues. ÇHD shall concern not to be more intelligent than the ones with whom we struggle together but to turn the potential to fight together, to trust to each other into action in order to weave an axis of struggle.”

ÇHD Ordinary General Assembly is determined to show that, “to be nuts is preferable than to be obedient”! For it us who claims the reputation to be the nuts, to pursue the impossible and not to hesitate to tresspass; we shall not turn it over to anyone!

ÇHD IS HERE; IT WILL ALWAYS BE HERE!

Stop Police and Judicial Cooperation with the Turkish Republic!

Press release, 26.11.2019

 

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

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

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

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

We demand:

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

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

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

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

 

Kontakt:

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

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

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

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

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

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

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

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

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

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

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

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

Represented organisations:

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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.

A travesty of justice – 18 Turkish lawyers sentenced to long prison terms, 159 Years, 1 Month, 30 Days in Total

On Wednesday 20 March 2019, the İstanbul 37th Heavy Penal Court in Silivri Courthouse announced its verdict in the case of the ÇHD (Çağdaş Hukukçular Derneği, Association of Progressive Lawyers). The lawyers have been sentenced to prison terms between 2 years, 13 months, and 15 days and 18 years and 9 months. The Court delivered its judgment without taking into account the lawyers defence.

The allegations and sentences:
For alleged “founding and managing a terrorist organization”:

▪ Barkın Timtik: 18 years and 9 months
For alleged “membership in a terrorist organisation”
▪ 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

For alleged “willingly and knowingly aiding a terrorist organization,”:
▪ Ayşegül Çağatay, Yağmur Ereren, Didem Baydar Ünsal, Yaprak Türkmen: 3 years 9 months
▪ Ahmet Mandacı, Zehra Özdemir: 2 years 13 months, and 15 days

Numerous lawyers from European and non-European countries observed the trial from the outset. Among them were representatives of the International Association of Democratic Lawyers (IADL), the European Association of Democratic Lawyers (AED-EDL), the European Association of Lawyers for Democracy and World Human Rights (ELDH), Lawyers for Lawyers, Avocats sans Frontières – Avocats Solidaires (ASF AS), Bar Associations from Belgium, France and Norway, the Italian Democratic Lawyers, the Italian Association of Criminal Lawyers, and Legal Team Italy.

After the court had issued the verdict the observers held a press conference to declare “We are convinced that at this point this trial is completely null and void. Protesting against the heavy prison terms inflicted we insist on the immediate acquittal of all defendants, to be attained through all possible judicial and legal means. We express our solidarity to the defendants in the name of the common struggle for upholding justice and rule of law.”

Milena Buyum, Amnesty International’s Senior Campaigner on Turkey, who observed the trial hearing, commented: “Today’s convictions are a travesty of justice and demonstrate yet again the inability of courts crippled under political pressure to deliver a fair trial.”

From the beginning the trial observers had the impression that the defendants were only accused for practising their legal profession according to the Turkish, European and International rules. This impression was confirmed when the court released 17 lawyers from pre-trial detention on 14 September 2018 only for them to be rearrested one day later after the judge was replaced. On [date?] the presiding judge expressed his decision not to admit any new evidence or any other applications of the defence lawyers. Finally he excluded the defence lawyers from the trial.

Other courts in Turkey or in Europe will have to decide if they accept this blatant violation of the rule of law and of the principles of a fair trial.

In the view of ELDH, the verdict is politically motivated by the state of emergency, despite the fact that the state of emergency was lifted a few months ago. The present charges have all the hallmarks of intimidation of lawyers, and the sentences will prevent them from carrying out their professional duties.

ELDH, AED-EDL, ASF AS, Norwegian Bar Association – Human Rights Committee demand

– the immediate acquittal of all 18 lawyers
– respect for the UN “Basic Principles on the Role of Lawyers”, in particular Art. 16 “to ensure that lawyers are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference” and Art. 18 “Lawyers shall not be identified with their clients or their clients’ causes as a result of discharging their functions”
– respect for Art. 6 ECHR and Art.14 International Covenant on Civil and Political Rights (right to a fair trial)