Report: ‘Defence for Defenders’

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The Open Dialog Foundation (ODF) of which statutory goal is to provide protection for human rights, democracy, and the rule of law, published a report that examines cases of harassment and attacks on lawyers and attorneys in countries such as Azerbaijan,Kazakhstan, Moldova, Russia, Ukraine, and Turkey, The ODF also arranged a side event at UN 38th Human Rights Council on the topic of the persecution of lawyers.

In the report entitled ‘Defence for Defenders’, cases of lawyers Fevzi Kayacan, Cemalettin Ozer and Mehmet Guzel who are former presidents of Konya, Erzincan and Erzurum Bar Associations were presented. Data and reports that compiled and published by The Arrested Lawyers Initiative quoted in the report by the ODF named ‘Defence for Defenders’

In the report “Turkey has been vigorously prosecuting counsels since the introduction of the state of emergency on 21 July 2016. The state of emergency was introduced following an attempted coup d’état in July 2016 and continues to this day. The Turkish authorities accused the Islamic movement ‘Gülen’ of involvement in the coup attempt. In Turkey, the movement is recognised as a terrorist organisation — (FETÖ). The state of emergency has been prolonged several times. Last time, it was extended for 90 days on 19 April 2018. Since the announcement of the state of emergency, prosecutions of counsels, judges, teachers, police officers, civil servants, etc. have begun. According to the human rights organisation ‘Arrested Lawyers Initiative’, counsels were arrested or detained as part of fabricated criminal investigations in almost all Turkish provinces (77 of 81 provinces). As of May 2018, 1,542 counsels have been subjected to prosecution (they have been prosecuted in court proceedings), 581 have been arrested, while 138 have been found guilty. At least 14 of the detained and arrested counsels were acting or former heads of local bar associations. Most of the prosecuted counsels were accused of having links with FETÖ, and faced charges under articles related to terrorism. The European Parliament called for the cancellation of the state of emergency and the release of a number of human rights defenders from places of detention. The International Bar Association Human Rights Institute (IBAHRI), the Council of Bars and Law Societies of Europe (CCBE), the European Federation of Journalists (EFJ), the European Association of Judges (EAJ), and many other international organisations have called on the Turkish authorities to cease the persistent harassment of counsels, judges, human rights defenders, prosecutors and lawyers. Human rights activists argue that the use of the state of emergency by the Turkish authorities as justification for detentions and illegal arrests contradicts international law. According to the information given by human rights defenders, many people, including counsels, who had been arrested on suspicion of participating in FETÖ, were subjected to torture, inhumane treatment (rape, battery) and threats while in custody. On 1 March 2018, The Law Society of England and Wales, the IBA Human Rights Institute (IBAHRI), the Lawyers for Lawyers (L4L), the Bar Human Rights Committee (BHRC), Union Internationale des Avocats (UIA), Lawyers Rights Watch Canada (LRWC) and Judges for Judges (J4J) issued a joint statement addressed to the UN Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The statement reports the incidents of ongoing and widespread torture in relation to representatives of the legal profession in Turkey. According to human rights activists, these incidents are not being sufficiently investigated. Alongside individual persecutions, a significant restriction of associations of counsels’ right to exist has begun. Since the introduction of the state of emergency, 34 different bar associations have been banned, and their property has been confiscated without any compensation. Following the introduction of the state of emergency, the government issued a number of decrees (Decree Law), which significantly limit the ability of counsels to perform their functions of defence. Human Rights Watch, as well as several other international organisations, have noted that many such decrees contradict human rights obligations assumed by Turkey. For example, according to the decrees, the prosecutor can prohibit a counsel from seeing a detainee for up to five days; the authorities may prohibit a specific counsel from defending a defendant if it transpires that he has allegedly passed information to a terrorist or criminal organisation. In cases involving terrorism or organised crime, the lawyer’s communication with the detainee in the detention facility can be recorded, limited or stopped at the request of the prosecutor. Counsels who are under investigation or have been accused of terrorism, regardless of whether their guilt has been proven, are prohibited from representing the interests of persons who also faced charges under the same articles. In her report, Ms Sabien Lahaye-Battheu, rapporteur of the Council of Europe’s Committee on Legal Affairs and Human Rights, points to mass arrests of counsels who represent or are in any way connected with the Kurdish community. One such counsel has been subjected to torture; another was killed.’ was said.

The right to defence is one of the fundamental human rights that is enshrined in a number of international agreements. The Universal Declaration of Human Rights proclaims the principle of equality of all before the law, the presumption of innocence, and the right to be examined openly and with all the requirements of justice by an independent and impartial court.

In order to exercise their right to defence, prosecuted persons must have full access to legal services provided by independent lawyers and attorneys. According to the UN Basic Principles on the Role of Lawyers, everyone has the right to ask any lawyer for help in defending their rights and protecting them at all stages of criminal proceedings.

According to the opinion of the European Court of Human Rightslawyers play a key role in maintaining public confidence in the judicial system and act as intermediaries between the public and courts. Thus, they are an important element of the rule of law.

As noted in paragraph 16 of the UN Basic Principles on the Role of Lawyers, governments shall ensure that lawyers are able to perform all of their professional functions in an environment free from intimidation and improper interference. Also, lawyers shall not be prosecuted or sanctioned for any acts committed as part of their professional duties.

Unfortunately, in countries where democratic institutions are poorly developed and the rule of law does not work, lawyers and attorneys often become victims of persecution as well as various kinds of pressure and restrictions. This especially concerns those who participate in politically motivated cases.

Lawyers and attorneys are attacked both by state institutions and authorities and by various criminals, against which the state is unable to protect them. This prosecution also involves professional associations that proclaim their aim to protect the rights and interests of lawyers, but are not independent of state bodies.

At the moment, there are no effective mechanisms for monitoring the interference of the state and other entities in the activities of lawyers and attorneys. The solution could consist of adopting a special document that would protect lawyers and attorneys at the international level.

As early as 2000, the Committee of Ministers of the Council of Europe adopted the Recommendation Rec(2000)21 of the Committee of Ministers to member states on the freedom of exercise of the profession of lawyer. However, in practice, it proved to be insufficiently effective, as it is not mandatory for Member States.

In December 2017, the PACE Committee on Legal Affairs and Human Rights accepted the report of the rapporteur Sabien Lahaye-Battheu on the need to adopt a European Convention on the Profession of a Lawyer.  According to the report, the idea of such a convention is justified by the growing pressure on lawyers and the increase in the number of violations of their professional rights in such member states of the Council of Europe as Russia, Ukraine, Turkey, and Azerbaijan. The report noted violations such as murders, disappearances, physical violence, interrogations of lawyers as witnesses in cases of their clients, searches by law enforcement agencies, threats and slanderous campaigns, use of disciplinary proceedings as a method of influencing lawyers, and more.

On 24 January, 2018, PACE approved Recommendation 2121 on drafting a European Convention on the Profession of a Lawyer.

Lawyers and attorneys in these countries continue to be persecuted for their professional duties. They also face various legislative restrictions and practices of law enforcement bodies, such as searches and seizure of materials subject to attorney–client privilege, restriction of access to clients in penitentiary institutions, and abuse of state secrets to limit the possibilities for public protection. These restrictions do not allow lawyers to effectively perform their professional duties.

To download the report click here: DEFENCE for DEFENDERS

Categories: International Advocacy, Reports, Situation in Turkey


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