This preliminary report reflects the concerns of the ICJ based on its trial observation of the first hearing of 27 lawyers (hereafter “Ankara 27”) charged with professional misconduct on 9 May 2002 before No.1 Ankara Heavy Penal Court.
The trial observer, Mr. Paul Richmond, Barrister of England and Wales, was appointed by the ICJ and was charged with reporting directly to the ICJ. Mr. Richmond will be observing the second hearing on 11 July and a final report on both hearings will be issued shortly.
Based on the trial observation on 9 May 2002, the ICJ expresses its concerns in relation to two main issues: the prosecution of lawyers and the need to guarantee fair trial standards throughout the trial.
1. PROSECUTION OF LAWYERS
The ICJ believes that the criminal charge against 27 lawyers before No.1 Ankara Heavy Penal Court is in reality a form of harassment of lawyers in the discharge of their duties.
“Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (…) (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognised professional duties, standards and ethics.” Principle 16 of the United Nations Basic Principles on the Role of Lawyers.
To enable any legal profession to effectively perform its role in the defence of individuals, lawyers must be able to counsel and represent their clients in accordance with their established professional standards and judgement free from any influence, pressure, threat or undue interference.
A legal obligation to protect the role of lawyers is implicit within the right to a fair trial as guaranteed by Article 6 of the European Convention on Human Rights and Fundamental Freedoms to which Turkey is a party.
The right of every accused to be legally represented in the conduct of his/her defence can only be said to be fully effective when lawyers can, without fear, fulfil their duties towards their clients. Where such conditions are not present and the personal security of lawyers is an issue, the effectiveness and the integrity of the lawyers’ work are potentially compromised.
The existence of threats against lawyers is often the result of the identification of lawyers with their clients’ causes. Lawyers representing accused persons in politically sensitive cases are often subjected to accusations of holding the same views and opinions as their clients.
As stated in Principle 18 of the United Nations 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.”
Identifying lawyers with their clients’ causes, unless there is reliable evidence to that effect, could be construed as an intimidation and harassment of the lawyers concerned. Governments have an obligation to protect lawyers from such intimidation and harassment.
In order to effectively analyse the Ankara 27 trial, it is necessary to take into consideration the historical challenges faced by the legal profession in the discharge of professional duties in Turkey.
Turkey has been the target of much criticism over a long period of time by human rights organisations , United Nations Human Rights Mechanisms and the European Court of Human Rights on the issue of harassment of lawyers carried out by or with the acquiescence of state authorities.
In Turkey, lawyers who repeatedly conduct defences before the State Security Court are considered to share the political views of their clients and, as such, are referred to as “terrorist lawyers” by the police, public prosecutors and the courts.
Harassment of lawyers can take various forms. For example, threats or actual infliction of violence, intentional disruption of the lawyer’s work, disrespectful or threatening treatment of lawyers by members of the security forces, including unnecessary searches, verbal abuse and interception of telephone calls, identification of lawyers with their clients’ views and criminal prosecution for the legitimate performance of their duties can be considered as a form of harassment.
In the present case, the 27 lawyers have been charged with “professional misconduct”, a criminal offence contrary to Article 240 of the Turkish Penal Code.
According to the indictment dated 27 November 2001, the particulars of the alleged offence are: “… at a hearing before No. 5 Ankara Heavy Penal Court on 5 December 2000 in which persons convicted of membership of the DHKP-C and TKIP appeared to answer charges arising from the Ulucanlar Prison rebellion of 26 September 1999, the lawyers representing the said defendants shouted slogans against the gendarmes and incited persons present in the courtroom to resist the gendarmes.”
The ICJ has knowledge that Article 240 of the Turkish Penal Code was originally enacted in order to provide a complaint mechanism for Turkish citizens who are dissatisfied with the conduct of any public employee instructed to act on their behalf. The ICJ is aware that the courts do have experience of criminal prosecutions of lawyers on charges of professional misconduct, however, in all cases, the criminal proceedings have been commenced as a result of a complaint made by an ordinary citizen against the lawyer instructed to act on his/her behalf. The ICJ understands that the trial of the Ankara 27 is the first recorded occasion on which a complaint made by an agent of the state (a Gendarme Captain) has given rise to criminal proceedings against a member of the legal profession under Article 240 of the Turkish Penal Code.
Many aspects surrounding the Ankara 27 case and facts evidenced during the observation of the hearing on 9 May 2002 can support ICJ’s allegations. Firstly, the charge was not initiated by the public prosecutor who was in charge on the date of the incident, 5 December 2000, but by a written complaint filed with the Office of the Public Prosecutor by Kemal Tekin, a Gendarme Captain , who was not present in court on the said day. Secondly, no incident report was filed by the police present in the courtroom on the day of the alleged incident . Thirdly, some of the accused claim that they were not present in court at the moment of the incident. Fourthly, the political nature of this trial can also be supported by the fact that immediately prior to the hearing, the defendants, their legal representatives and those attending the hearing were filmed by an individual who refused to reveal his identity and who stated that he was acting “under orders”. Finally, after an elapse of an 11-month period for investigation of the charge, at the time of the hearing on 9 May 2002, the court file contained no statement from any witnesses present at the time of the alleged incident.
The criminal prosecution of the 27 lawyers who represented some Uluncalar prisoners on 5 December 2000 amounts to harassment of members of the legal profession for the legitimate exercise of their duties. Such unprecedented action by Government authorities jeopardises the independence of the legal profession and leaves the door open for future abuse.
The ICJ is of the opinion that there are other possible channels to redress any improper conduct of lawyers who were present in court on 5 December 2000. Discipline of lawyers is normally dealt with by an impartial disciplinary committee established by the legal profession . The ICJ requests that any inquiry into the conduct of the 27 lawyers in question be channelled to the appropriate Bar Association.
2. GUARANTEE OF FAIR TRIAL STANDARDS
Based on our observation of 9 May hearing, the ICJ is concerned that basic fair trial standards to which Turkey is bound are not being respected and are at risk of being neglected throughout the eventual continuation of the proceedings.
Turkey is bound by the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), having ratified it in 1954. In addition, Turkey has recently signed but not ratified the International Covenant on Civil and Political Rights.
Article 6 of the European Convention on Human Rights provides:
“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. (…)
3. Everyone charged with a criminal offence has the following minimum rights:
a. to be informed promptly, in a language which he understands and in detail, of the nature of the accusation against him; b. to have adequate time and facilities for the preparation of his defence; c. to defend himself in person through legal assistance of his own choosing or, if he has not sufficient means to pay for legal counsel, to be given it free when the interests of justice so require; (…)
The ICJ is deeply concerned that the right of the accused lawyers to be informed of the charge against them has not been respected in the present case.
2.1 Right to be Informed of the Charge
An accused should be informed of the charge that s/he is facing. The rationale for this right is to provide sufficient information to allow the preparation of the defence. In order to safeguard this guarantee, the information forming the basis of the charge needs to be promptly given, must include the nature (exact legal description of the offence) and cause (the facts upon which the allegation is based) of the charge.
The indictment against the lawyers provides the legal basis for the charge by indicating that the conduct of the accused amounted to “professional misconduct” under article 240 of the Turkish Penal Code. The indictment further provided that the accused “shouted slogans”, but there is no particularisation of what each accused is alleged to have said and therefore no indication as to whether what they shouted, if indeed they did shout, was in fact a “slogan”.
According to the court record, the accused consistently brought to the court’s attention the fact that the charge lacked essential information. This issue was addressed in the statement handed out in court on behalf of 15 of the 27 accused and it was then reiterated by accused Selcuk Kozagacli.
The ICJ is of the opinion that the lawyers’ right to be informed of the charge against them has not been fully respected as factual details relating to the charge have not been provided. Turkey is not acting in accordance with its international obligations under article 6(3)(a) of the ECHR. This then has further compromised the right of the 27 lawyers to prepare a proper defence.
3. BACKGROUND INFORMATION
The trial of the 27 lawyers before No.1 Ankara Heavy Penal Court is based on events that took place during court proceedings before No. 5 Ankara Heavy Penal Court on 5 December 2000.
The trial of prisoners alleged to have committed criminal acts during the incident at Ulucanlar Prison on the 26 September 1999 resumed before No.5 Ankara Heavy Penal Court on 5 December 2000. The trial was presided over by Judge Necdet Yaman, Judge Abdurrahman Kelesoglu and Judge Inci Ozden. The Public Prosecutor was Sadi Aslan.
According to the official court minutes of the hearing on 5 December 2000, the following defence lawyers were in attendance: Zeki Ruzgar; Kazim Bayraktar; Filiz Kalayci; Betul Vangolu; Sevim Akay; Belgun Culhaoglu; Mecit Engeci; Huseyin Yukselbicen; Nurten Caglar; Oya Aydin; Vedat Aytac; Nuray Ozdogan; Sevil Ceylan; Keles Ozturk; Medine Ayhan; Goksel Arslan; Gulizar Tuncer; Aytul Kaplan; Haci Ali Ozhan; Ertugrul Cem Ilhan; Dilek Midik; Devrum Karakulah; Ibrahim Ergun; Ozgur Sariyildiz; Riza Karaman; Gaye Dincel and Selcuk Kozagaci.
During the hearing on 5 December 2000, it is alleged that gendarmes present in the court physically attacked the defendants and their lawyers.
Some time later a written complaint was filed with the Office of the Public Prosecutor by Kemal Tekin, a Gendarme Captain (the complaint itself is undated and therefore it is not clear when it was made) alleging that the 27 lawyers representing the defendants during the 5 December 2000 hearing had, during the court proceedings, “shouted slogans” and “incited those persons present in the courtroom to resist the gendarmes”.
The complaint was then forwarded to the Minister of Justice who, on 25 April 2001, instructed the Office of the Public Prosecutor to commence an investigation into the conduct of the lawyers in attendance on 5 December 2000. After the investigation report was completed, the Minster of Justice instructed that charges should be prepared and legal proceedings commenced against the 27 lawyers.
From 27 November 2001 to 9 May 2002, there were written submissions by the prosecution and the defence. The first hearing took place on 9 May 2002 before No. 1 Ankara Heavy Penal Court. The second hearing is to take place on 11 July before the same court.
The events that took place at the hearing of 5 December 2000 are the subject of the present proceedings against the 27 lawyers.
The ICJ recommends that:
(1) the charge be immediately withdrawn and, if necessary, any enquiry and/or disciplinary measures related to the conduct of the accused lawyers on 5 December 2000 be brought by an impartial disciplinary committee established by the Turkish legal profession; (2) Government authorities follow up on the lawyers’ complaint to the Office of the Public Prosecutor regarding the conduct of the gendarme officers present in No. 5 Ankara Heavy Penal Court on 5 December 2000; and (3) the Government take positive steps to guarantee that the independence and the effective functioning of the legal profession will not be jeopardised by cases of harassment of lawyers, similar to this one.
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