The ICJ’s Centre for the Independence of Judges and Lawyers expresses in its second report its deep concern at the on-going trial of 27 Turkish lawyers who are charged with professional misconduct related to their defense of political prisoners. The ICJ sent a trial observer to the second hearing which took place on 11 July 2002 at No. 1 Ankara Heavy Penal Court. The hearing has been adjourned to 31 October.
TURKEY: REPORT ON THE SECOND HEARING OF 27 LAWYERS
This is a report of the International Commission of Jurists (ICJ) on the trial of 27 lawyers (hereafter “Ankara 27”) who were charged with professional misconduct before No.1 Ankara Heavy Penal Court on 11 July 2002.
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’s observation of the 11 July hearing was a follow-up to his observation of the first hearing on 9 May 2002.
DESCRIPTION OF 11 JULY HEARING
After having been adjourned on 9 May, the trial against the Ankara 27 who were charged with professional misconduct resumed on 11 July at No.1 Ankara Heavy Penal Court. The adjournment was due to the absence of two defendants.
The trial on 11 July was also adjourned to 31 October as one of the defendants, Goskel Arslan, failed to appear. At this hearing, the Ankara Court allowed Goskel Arslan to present his defence on 31 October to the Heavy Penal Court in Istanbul, where he resides. It is expected that the Ankara Court will issue its final ruling on 31 October.
2. GUARANTEE OF FAIR TRIAL STANDARDS
As the trial has not yet terminated, it is not possible to arrive at a final conclusion as to whether or not the Ankara Court has respected binding fair trial standards {{1}}. Nevertheless, based on the observation of the hearing on 11 July, the ICJ has the following interim remarks on certain aspects of fair trial guarantees.
2.1 Right to a Defence
The ICJ welcomes the Court’s decision on 11 July to adjourn the trial so as to allow the defendant Goskel Arslan another opportunity to present his defence. The ICJ also welcomes the decision of that Court not to compel Goskel Arslan to travel to Ankara in order to present his defence.
The ICJ is, therefore, of the opinion that on 11 July, the No. 1 Ankara Heavy Penal Court provided the defendants a satisfactory opportunity to present their defence. Prima facie, during this hearing, the right to defence as provided in article 6(3)(c) of the European Convention on Human Rights has been respected.
2.2 Trial within a Reasonable Time
Pursuant to article 6(1) of the European Convention on Human Rights {{2}}, Turkey is legally obligated to provide the accused a trial within a reasonable time. Furthermore, numerous factors play a role in establishing whether a trial has been concluded within a reasonable time. One of the elements to consider is the bearing of the conduct of the defendant upon the conclusion of a trial. As indicated above, the trial could not be concluded as one of the defendants was unable to appear.
3. ICJ CONCERNS
Comments on the trial of the Ankara 27 must necessarily extend beyond an analysis of the fairness of the proceedings in the courtroom to include the overall context within which criminal charges against the lawyers arose. It is through this optic that,
The ICJ is deeply concerned that the charges against the lawyers have not been withdrawn as recommended by the ICJ in its preliminary report {{3}}.
The ICJ thereby reaffirms its opinion that by bringing criminal charges against the Ankara 27, the Government is harassing lawyers in the discharge of their professional duties. Such criminal charges jeopardise the independence of the legal profession, leaving the door open for further abuses and attacks on the rule of law. Therefore, it is imperative that the charges be immediately withdrawn.
3.1 Identification of lawyers with their clients’ causes
In a meeting on 11 July between the ICJ trial observer and the Chief Prosecutor of Ankara Heavy Penal Court, the latter openly stated that lawyers who represent members of illegal organisations are actually the tools of these organisations and are “terrorist lawyers”. Clearly, this tainted view has a negative impact on the work of lawyers and the right of defence of the accused.
Param Cumaraswamy, the United Nations Special Rapporteur on the independence of judges and lawyers states, “Identifying lawyers with their clients’ causes, unless there is reliable evidence to that effect, could be construed as intimidation and harassment of the lawyers concerned. Governments have an obligation to protect lawyers from such intimidation and harassment”{{4}} .
Furthermore, as indicated in the United Nations Basic Principles on the Role of Lawyers {{5}}:
Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference…(Art. 16); and
Lawyers shall not be identified with their clients or their clients’ causes as a result of discharging their functions. (Art. 18)
Government officials within the Turkish justice system who describe lawyers of political prisoners as “terrorist lawyers” are clearly identifying these lawyers with their clients’ causes. This has resulted in Government harassment and intimidation of a class of lawyers in Turkey {{6}}.
3.2 Videotaping of court procedures and police presence
During the 9 May trial, an unknown person standing outside the courtroom filmed the defendants, their lawyers and members of the public who were present in the waiting area. The ICJ was pleased to observe that at the 11 July hearing, there was no evidence of filming. The ICJ furthermore noted that there were no gendarmes or police present in the public gallery as there had been on 9 May.
4. BACKGROUND INFORMATION
The trial of the twenty-seven lawyers before No.1 Ankara Heavy Penal Court is based upon events that took place during the 5 December 2000 criminal trial of prisoners who were alleged to have committed criminal acts at Ulucanlar prison in September 1999. That trial was presided 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.
It is alleged that during this hearing, several gendarmes present in the courtroom physically attacked the defendants and their lawyers.
Some time later Kemal Tekin, a gendarme captain filed a written complaint with the Office of the Public Prosecutor (the complaint itself is undated). The complaint alleged that the 27 lawyers representing the defendants had, during 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 report of the investigation was completed, the Minister of Justice instructed that charges should be brought 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 {{7}}. The second hearing, which is the subject of the present report, took place on 11 July before the same court. The third, and probably the last, hearing has been scheduled for 31 October 2002.
The 27 lawyers are charged with “professional misconduct”, under which they could face up to three years imprisonment pursuant to Article 240 of the Turkish Penal Code {{8}}.
5. RECOMMENDATIONS
As the Turkish government did not take into account the ICJ’s recommendations pursuant to its report of the 9 May hearing, the ICJ would like to reiterate that:
(1) The charge against the 27 lawyers should be dropped. Any disciplinary measures related to the conduct of the accused lawyers should be brought by an impartial disciplinary committee established by the Turkish legal profession;
(2) The Government should take positive steps to guarantee that the independence and effective functioning of the legal profession will not be jeopardised by cases of harassment of lawyers, similar to this one; and
(3) Government authorities should follow up on the lawyers’ complaints to the Office of the Public Prosecutor regarding alleged physical attacks on prisoners and the lawyers by gendarmes in No. 5 Ankara Heavy Penal Court on 5 December 2000.
[[1]] Turkey ratified the European Convention on Human Rights in 1990. [[1]]
[[2]] 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 […]”. [[2]]
[[3]] International Commission of Jurists, Preliminary Report on the Trial of 27 Lawyers before Ankara Heavy Penal Court, page 6. <https://www.icj.org> [[3]]
[[4]] Report of the Special Rapporteur on the independence of judges and lawyers, Mr. Param Cumaraswamy, UN Doc. E/CN.4/1998/39, 12 February 1998, p. 28. [[4]]
[[5]] Basic Principles on the Role of Lawyers, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Havana, Cuba, from 27 August to 7 September 1990 and welcomed by the General Assembly in Resolution 45/121 of 14 Dec. G.A. Res. 45/121, 45th Session. [[5]]
[[6]] Ibid. The Special Rapporteur on the independence of judges and lawyers states, “Lawyers who repeatedly conduct defences before the State Security Court, in which case they are equated with the defendants’ cause and, as such, are termed ‘terrorist lawyers’ by the police, the public prosecutors and by the courts”. Country Situations: Turkey, p. 26. [[6]]
[[7]] See, International Commission of Jurists, Preliminary Report on the Trial of 27 Lawyers before Ankara Heavy Penal Court <https://www.icj.org> [[7]]
[[8]] Article 240 of the Turkish Penal Code states that, “Apart from situations written in the Act, whatever the reason may be, if a public servant abuses or misuses their duty/responsibility, depending on the degree of the offence, they shall be imprisoned for 3 years. In the event of any mitigating circumstances the penalty shall be between 6 months to 1-year imprisonment and in both circumstances there shall be a heavy financial penalty as punishment. Furthermore, there shall also be suspension or dismissal from being a public employee.” The ICJ noted in its first report that this was the first recorded instance wherein a complaint made by an agent of the state (a gendarme captain) gave rise to criminal proceedings against members of the legal profession under Article 240. See, International Commission of Jurists, Preliminary Report on the Trial of 27 Lawyers before Ankara Heavy Penal Court, p.3. <https://www.icj.org> [[8]]