Three international law associations made a submission to the United Nations Special Rapporteur on the Independence of Judges and Lawyers and urge the UN to enter into urgent dialogue with the Turkish government with a view to ending the persecution and prosecution of legal professionals in the country.
A 34-page report written by Kirsty Brimelow QC, Stephen Cragg QC, Tony Fisher, Roberta Taveri and the Arrested Lawyers Initiative.
The report entitled “International Law Breaches Concerning the Independence of Legal Profession in Turkey” was submitted to Mr Diego García-Sayán who is the United Nations Special Rapporteur on the Independence of Judges and Lawyers by the Bar Human Rights Committee of England and Wales (BHRC), the International Bar Association’s Human Rights Institute (IBAHRI) and the Law Society of England and Wales on Tuesday in Geneva.
The international law associations requested UN’s García-Sayán to enter into urgent dialogue with the Turkey with a view to ending the persecution and prosecution of legal professionals in the country, by saying that the already dire situation is worsening in Turkey.
The international law associations have also urged UN to send a communication to the Turkish government “to seek to guarantee the independence of the judiciary and the prosecution services, in accordance with the UN Basic Principles on the Independence of the Judiciary and the UN Guidelines on the Role of Prosecutors.
It was said in the report that ‘581 lawyers have been arrested, 1,542 prosecuted and 168 lawyers convicted. Furthermore, some of the lawyers arrested in Turkey since 2016 face enormous pressure and, in some instances, are compelled to testify against their clients, violating the principle of lawyer-client confidentiality.’
The report also stated that since 2010, successive legislative and constitutional reforms have significantly weakened the rule of law in Turkey by undermining the independence of judges and prosecutors. The newly acquired powers enable the government to interfere with the judiciary and the prosecution services by appointing those held in favor by the government to key judicial positions and to other institutions, by reassigning and dismissing others and by arresting and prosecuting thousands of lawyers, judges, prosecutors, and court staff.
“Such measures strongly undermine the independence of the judiciary and the prosecution and contravene the UN Basic Principles on the Independence of the Judiciary (especially Principles 1, 2, 4, 8, and 18 and 20), as well as the UN Guidelines on the Role of Prosecutors (especially Principles 2(a), 4, 8, 21 and 22),” said the report.
Reminding that Turkish citizens filed more than 90,200 petitions to the ECtHR in 2017, but over 25,000 of them were dismissed summarily as being ‘manifestly ill-founded’ by the court since domestic remedies had not been exhausted, the report stated that “Although some cases involving politicians and journalists have now been referred by the ECtHR to the Turkish government, the ECtHR has not yet made any substantive finding that the right of individual petition to the Constitutional Court is ineffective.”
Recommendation as follows made in the report:
“To amend legislative and constitutional provisions that allow the Turkish government to appoint a large number of members of the Council of Judges and Prosecutors (HSK), and the Constitutional Court;
“To guarantee that all applications against dismissal decisions are considered in a fair and public hearing in a reasonable time by a competent, independent and impartial tribunal established by law as provided for in Article 14.1 of the ICCPR, Article 6.1 of the ECHR;
“Regarding all applications against dismissals under consideration by the Inquiry Commission for State of Emergency Measures, ensure that the majority of the members of the Commission are independent and impartial; not appointed by the executive; that applicants have access to case files and grounds for dismissals; that applicants can present evidence and challenge evidence filed against them; that the decisions of the Commission are reasoned, based on evidence presented by both parties, made public, and directly notified to the applicant, and that the Commission is provided enough resources to address its backlog as soon as possible;
“to ensure that lawyers can effectively perform their professional functions in accordance with the guarantees provided for in Article 14 of the ICCPR, the UN Basic Principles on the Role of Lawyers, and Articles 5 and 6 of the ECHR by: Repealing legislation enacting emergency decree laws which impact legal professional privilege, access to a lawyer of one’s choice, and which extend detention periods without access to a lawyer, and Removing any practical obstacles;
“To amend the anti-terror legislation (including the new Anti-Terrorism Bill adopted on 25 July 2018), and provisions in the Criminal Code as recommended by the Council of Europe, the European Court of Human Rights, and the European Union,
“To ensure that lawyers are not identified with their clients or clients’ causes and can perform their duties without intimidation, hindrance, harassment or improper, in accordance with the UN Basic Principles on the Role of Lawyers;
“Immediately end the arbitrary and systematic arrest, prosecution and detention of lawyers, drop the charges against those arbitrarily accused, and release those who are detained, unless credible evidence is presented in proceedings that comply with international fair trial standards;
“To ensure the independent and prompt investigation and prosecution of all cases of torture and ill-treatment of lawyers committed by law enforcement officers, in accordance with applicable international standards;
“Immediately end the interference in and systematic persecution of bar associations and lawyers’ associations and arbitrary arrest and prosecution of their members; and
“To ensure that lawyers are entitled to form and join independent and self-governing professional associations as protected by Principle 24 of the UN Basic Principles on the Role of Lawyers.
In a statement concerning the joint submission ‘Draconian measures introduced during the state of emergency in Turkey have now been incorporated into the country’s permanent legal framework, expanding the powers of the president and restricting access to justice for ordinary citizens. The rule of law and a legal profession independent of government are cornerstones of a healthy democracy in which citizens have access to justice, power can be held to account and lawyers can practise without hindrance or intimidation,’ said Christina Blacklaws, President of the Law Society of England and Wales.
Full report: Joint Submission: International Law Breaches Concerning the Independence of Legal Profession in Turkey”
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