chevron-down Created with Sketch Beta.
December 01, 2023

A Case of Denial of the Right to a Fair Trial: Turkish Lawyers Under Indictment

Salvatore Filippini La Rosa

As we all know, respect for the Rule of Law constitutes the backbone on which modern Western democracies are founded and identified. However, in recent years there has been a gradual erosion of the values and constraints that theoretically unite the states of the European Union and condition the admission of new members.

Principles, including the separation of state powers, respect for human rights, and access to justice before independent and partial courts, are increasingly ignored in countries that are characterized by worrying autocratic drifts.

Turkish lawyers in the dock

Many Turkish lawyers have been and continue to be investigated, accused, and often convicted because of their alleged links with associations and parties such as Fetö and PKK, among others. The Arrested Lawyers Initiative, in a report dated December 10, 2021, reported that 474 lawyers were convicted for their alleged belonging to armed terrorist organizations and sentenced to a combined total of 2,966 years in prison. In particular, the trials against the members of the Turkish association CHD - Çaÿdaÿ hukukçular der neÿi (Association of Progressive Lawyers) which was dissolved in November 2016 with the decree law KHK / 677, continue to provoke substantial attention.

The lawyer members of the CHD and defenders of some members of the terrorist organization DHKP-C / Devrimci halk kurtuluÿ partisi-cephesi (the Revolutionary People's Liberation Party-Front) which is also outlawed in the European Union and United States, are accused of belonging to the same organization. This is based on a process of targeted identification between the accused and their lawyers in violation of the legal principles guaranteeing the free exercise of the functions of the lawyer.

For this reason, organizations such as the Union Internationale des Avocats - Institute for the Rule of Law and the European Association of Lawyers for Democracy and World Human Rights, sent their observers to attend the hearings of the trials against the members of the CHD. In addition, they visited them in the maximum-security prisons where they are held, in order to verify and testify as to the violations of the rules of the fair trial in political trials against Turkish lawyers and when possible, the conditions of their detention.

The first trial against the members of the CHD

The first of two trials against Turkish lawyers who are members of the CHD and accused of being leaders or members of a terrorist organization (the so-called CHD-1 trial) began in 2013 in front of the Istanbul Criminal Court. Among the 22 defendants was Ebru Timtik, a lawyer of Kurdish origin who died in prison in 2020 after 238 days of hunger strike demanding a fair trial. Among others are Selçuk Kozaÿaçli, head of the association, and Barkÿn Timtik, sister of Ebru who in January 2022 declared that she was also beginning a hunger strike. They were held at the Silivri maximum security prison, in the district of Istanbul, the largest such institution in Europe.

All the lawyers were accused of having violated art. 314 of the Turkish Penal Code (TCK), which punishes the establishment and management of an armed organization with imprisonment from ten to fifteen years, and for participation, imprisonment ranges from five to ten years. However, these penalties can be increased respectively from a minimum of twenty to a maximum of 22.5 years in prison and from a minimum of 7.5 years to a maximum of twenty years, as established by law 3713 of 1991 and subsequent modifications made to it.

The Prosecutor's Office of the Turkish Republic based its accusations mainly on wiretaps collected between the end of the 1990s and the early 2000s by the Belgian police and the Dutch police. The subject lawyers of the accused never knew the collected content, nor the statements made during the trial by witnesses who were interrogated 'remotely' during some hearings. Testimony was made with the aid of maxi screens and often with distorted features and altered voices, questionably confirming the statements previously made to the judicial police bodies, all without the ability of defendants' lawyers to cross-examine.

In addition to having defended persons accused of terrorist activities, the lawyers allegedly attended the funeral of at least one member of the DHKP-C organization, spoke publicly during demonstrations for women's rights, allegedly had repeated talks with their clients in the police stations and in prison; and in at least one case, advised a client to remain silent during an examination. This trial, characterized by a series of innumerable postponements, highlighted numerous violations of international law guaranteeing the role of the lawyer, as well as the right to a fair trial.

During the hearings, many of which were held in a building adjacent to the Silivri prison, the difficulty surrounding the effective exercise of the right to defense was visible to international observers. In fact, the defendants detained and present in the courtroom, surrounded by a jandarma (the Turkish military police) cordon, could not communicate with their lawyers during the hearings. The statements of the defendants and the pleadings of the lawyers were fierce and passionate, but almost never 'technical', as no mention of specific laws and precedents were offered.

In addition, the deep and declared distrust of the defendants and their lawyers also emerged with respect to the impartiality and independence of all the judges present, considered as adversaries, with no difference between the investigating body and the judicial body, constituting consistent violations of the right to defend all the accused. On the one hand, therefore, the lawyers who had defended terrorists were accused of being themselves terrorists; on the other hand, their lawyers could not have access to the incriminating evidence, nor could they speak with their clients during the hearings.

The foregoing highlights how in this process there was no consideration for the rules that sanction both the free exercise of the legal profession and the right to due process. I refer, first of all, to the Protocol of 1990 on the role of lawyers, adopted in Havana during the eighth United Nations Congress on the prevention of crime and the treatment of criminals. In implicitly recognizing that lawyers are an essential part in the administration of justice, the Protocol indeed refers to the right to a "just and public hearing held by an independent and impartial tribunal", as also enshrined in the Universal Declaration of Human Rights, and provides certain guarantees relating to the exercise of the legal profession.

Pursuant to principles 16, 17 and 18 of that Protocol, Governments must ensure, inter alia, that lawyers:

  • can perform their professional functions without being intimidated, hindered, harassed and without improper interference;
  • can travel and consult freely with their clients in their own countries and abroad;
  • do not suffer - or are not threatened to suffer any administrative, economic or other action or sanction, due to acts performed in accordance with their professional and ethical duties;
  • are adequately protected, where their safety is threatened due to the fulfillment of their functions;
  • are not identified with their clients or their cases for the sole reason of having carried out their professional activity.

The same Protocol, in principle no. 21, also states that the competent authorities of each country must also ensure lawyers can access to information, files, and documents in their possession or under their control, in sufficient time to allow effective assistance to their clients, respecting the confidentiality of all their communications and consultations in the context of their professional relationship.

The conduct during the hearings by the Istanbul Tribunal shows the violation of these rules and questions the consistency of the accusations, apparently in an attempt to discredit and intimidate the lawyers engaged in the defense of persons involved in terrorist activities. The continuing impossibility for the defense teams to interrogate and cross-examine the witnesses, to be in contact with their clients during the hearings, and to have a real access to the incriminating evidence shows the violation of these rules constitutes flagrant disregard for the rule of law.

At the end of the last hearing, held on 7, 8, 9, 10 and 11 November 2022, the Court sentenced Selçuk Kozaÿaçli to 13 years in prison as a member of a terrorist organization (art. 314/2 Turkish Penal Code) and for propaganda activities (art. 7/2 anti-terrorist law); Barkin Timtik to 20 years and six months in prison, as a member of a terrorist organization (art. 314/2 Turkish Penal Code) and for seven episodes of propaganda activity (art. 7/2 anti-terrorist law); Oya Aslan to 16 years and six months in prison, as a member of a terrorist organization (Art. 314/2 Turkish Penal Code) and for six episodes of propaganda activity (Art. 7/2 Anti-Terrorist Law).

In these three cases, no mitigating circumstances were applied, as the defendants showed no sign of repentance. The other defendants faced sentences ranging from 11 years and three months to one year, while the discontinuation of the proceedings against Ebru Timtik was declared.

The second trial against the members of the CHD

Another trial against 20 members of CHD lawyers and HHB (Halkin hukuk burpsu, People's Advocates Office), the so-called CHD-2, started in autumn 2018. Again, the lawyers were accused of being leaders or members of a terrorist organization. It should be noted that the offenses ascribed to some of them were the same in both the proceedings examined here. The evidence on which the accusations were based coincided with those in the CHD-1 trial.

The CHD-2 trial started with a series of arrests carried out between September and December 2017, and unlike the previous one, ended in a short time. The first week of hearings in September 2018 ended with the release of all the lawyers arrested and placed in pre-trial detention. This decision was rooted in consideration of the long duration of their arrest and their role as lawyers. However, following the immediate appeal of the Public Prosecutor's Office, the release order was revoked for fear that the defendants would flee: some lawyers were again arrested and others escaped the arrest, while Selçuk Kozaÿaçlÿ spontaneously surrendered to the authorities.

In addition, as announced by the Turkish Ministry of Justice, the members of the judicial panel who had ordered the release were promptly assigned to new posts and replaced by other magistrates. The CHD-2 trial ended with prison sentences ranging between three years, one month, and fifteen days, for knowingly and voluntarily supporting a terrorist organization (as in the case of lawyers Zehra Odemir and Ahmet Mandaci), and eighteen years and nine months, for having founded and directed a terrorist organization (this is the sentence imposed on Barkin Timtik). In both trials there were violations not only of the aforementioned Havana Protocol, but also of art. 6 and Protocol No. 7 of the European Convention on Human Rights.

In fact, as we all know, art. 6 states that every person has the right to have his case fairly and publicly examined by an independent and impartial court established by law and called to make a decision as to the merits of any criminal accusation, and within a reasonable time. For its part, Protocol No. 7 states the principle of ne bis in idem, so that no one can be prosecuted or criminally convicted, in the same country, for a crime for which he has already been acquitted or convicted with a legitimate and definitive judgement. As a matter of fact, both of these rights have been repeatedly violated in the two trials, being the duration of the first trial and the presence of eight lawyers accused in both trials for the same facts a vulnus to the right of the defendants.

Conclusions

It was quite clear to the author from the beginning, as an observer of the trials, that the management of the trials and the consequent distrust shown by the accused and their lawyers towards the judges did not leave much room for hope for a favorable outcome. However, it will be essential that the international legal community continues to closely monitor and bring their influence to bear in these and all cases of violations of fundamental rights against colleagues, wherever they are.

    Salvatore Filippini La Rosa

    Attorney

    Salvatore Filippini La Rosa is a lawyer and international observer.

    Entity:
    Topic:
    The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.