In the morning hours of the 25th of April 2023, during a wide police operation, 191 people, including 25 lawyers and other members of civil society in Turkey were arrested and their houses searched.
Of the 25 lawyers initially arrested, 16 have been released under judicial control, following deposition and interrogation procedures. 4 lawyers are still under dentention. All of these lawyers have been criminalized for the practice of their profession and linked them, without proof, to the crimes against their clients.
Following these events, the Diyarbakir bar association and OHD (the Association of Lawyers for Freedom) have compiled a report, concluding that targeting defense lawyers in investagions of the prosecution, devoid of legal basis, undermines an important mechanism that guarantees the right to a fair trial.
AIM
This report aims at compiling all violations to the right to a fair trial and is to be used as the basis to make the required national and international legal applications and criminal complaints.
March 18 2023 marks the 7th anniversary of the 2016 EU-Turkey Statement. In 2016, Turkey assumed the role of the European Union’s border guard. It received billions of Euros from the EU on the condition that it held migrants in Turkey and received those who were deported back.
Turkey, however, did not hesitate to exploit this position, using migrants as a threat and, whennecessary, as leverage against the EU. On February 6 2023, following the earthquakes in Turkey, living conditions for migrants have deteriorated. Increasing racism has led to violent attacks against migrants; for this reason, the earthquake-affected areas can no longer be considered safe for migrants. As aid policies have excluded migrants from the relief system, migrants have difficulties accessing even basic necessities such as drinking water or shelter. Migrants have been labeled as “looters”, and there have been reports that members of Arabic-speaking communities in the region have been the target of racially-motivated mob attacks.
Representatives of the Turkish state publicly use anti-migrant rhetoric and promote racist sentiment. Further, migrants who survive the attacks may be tortured by law enforcement officers, as has been reported by legal and rights-based organizations working in the region.
The February 6 earthquake affected at least 10 cities in Turkey. These cities also host the highest percentage population of migrants compared to the local population. Migrants, who already constitute one of the most vulnerable sectors of society due to their socioeconomic status, are among the most mistreated subjects post-earthquake. As early as the second day of the earthquake, when thousands of people were still struggling to survive while trapped under the rubble, fake news with a racist, anti-migrant agenda was circulated by government agencies and representatives of political parties. This openly threatened migrants who had survived the earthquake. Not only did state representatives fail to take any precautions to ensure the safety of migrants, they also failed to take the necessary steps to transfer migrants to other cities.
Migrants cannot travel outside their registered cities without travel permits and the lack of issuance of these permits left thousands of people stranded in the aftermath of the disaster. By the beginning of March there were still people in the earthquake zone who could not find a tent, while nightly temperatures dropped below zero. This fact reveals that Turkey has consistently avoided fulfilling its obligation to protect the migrant population.
On the other side of Europe’s border, the Greek Coast Guard and Frontex (the EU’s Border Protection Agency), with bloated budgets increasing further every year, are building up the walls of Fortress Europe, threatening people’s lives by pushing migrants back to Turkey. In Greece, the islands that are close to the Anatolian peninsula are defined as ‘hotspots’ where exceptional procedural rules apply. Here, migrants are portrayed as a threat to the existence of Greece itself. Migrants who do manage to reach these islands after surviving pushback incidents face difficulties in accessing the asylum procedure and health care, and are forced to live in camps that operate as open-air prisons, far from city centers. Many migrants’ applications for international protection are rejected on the grounds that Turkey is a safe third country, citing the EU-Turkey Statement, which also turned the islands into de facto open-air prisons for people who are not permitted to leave.
Moreover, in the Greek border camps, from the EU-Turkey Statement until today, many people have lost their lives trapped there, with no accountability 1from the Greek state and no change in migration policy. On the contrary, the Greek state with the (political and financial) support of the EU is opening new camps. In Greece, the people are being incited against migrants by media and political networks – just as in Turkey. In Greece, the government criminalizes migrants and people who work or stand in solidarity with migrants, launching absurd criminal investigations and convicting people in trials without evidence. By applying criminal provisions on espionage, smuggling and human trafficking, Greece reproduces yet again the climate of fear, which is already well established in Turkey through the extensive use of ‘anti-terror’ legislation.
We, the undersigned organizations, declare that policies of border externalization, and of turning migrants into a cheap labor force, should be stopped immediately. We are against the use of migrants as leverage in domestic and international politics.
We underline that the externalization statements signed between the EU and Turkey or North African countries are against international law. These externalization statements should be immediately revoked, as they violate the responsibilities of the parties to the 1951 Convention Relating to the Status of Refugees.
We, the undersigned organizations, demand: – the immediate termination of the application of the EU-Turkey Statement, as codified in Greek national law and regulations or through international agreements with Turkey, as well as all similar externalization statements with other countries, which have been implemented with a similar motive of preventing migrants from entering the EU; – that the practice of pushbacks between Turkey and Greece, in which the right to life and the prohibition of torture as enshrined in the European Convention of Human Rights are routinely violated, be stopped and remedy mechanisms for the survivors to be implemented immediately; – that regulations assuring that migrants’ rights are respected, ensuring decent living conditions and freedom of movement, be implemented.
Signatures
Academics for Peace / Germany (Barış İçin Akademisyenler Almanya)
Adalet İçin Hukukçular / Lawyers for Justice
Agora Association Izmir (Turkey)
ASGI – Association for Juridical Studies on Immigration
Asociación Americana de Juristas
Association for Mutual Support and Solidarity with Migrants (Göçmen Yardımlaşma ve Dayanışma Derneği) (Turkey)
Avukat Dayanışması / Lawyer solidarity
Campaign Against Criminalising Communities (CAMPACC)
Center for Research and Elaboration on Democracy/Group of International Legal Intervention (CRED/GIGI)
Civic Space Studies Association (Sivil Alan Araştırma Derneği – Türkiye)
Community Peacemakers Teams (CPT) (Greece)
Confederation of European Alevi Unions (Avrupa Alevi Birlikleri Konfederasyonu)
Confederation of Lawyers of Asia & Pacific (COLAP)
Confederation of Public Employees’ Trade Unions (Kamu Emekçileri Sendikaları Konfederasyonu – KESK) (Turkey)
Focus Country of 2023: Mexico Call for Nominations for the Ebru Timtik Award 14 June 2023, Mexico City/Mexico
In 2021, a group of lawyers and lawyers’ organisations came together to establish an annual International Fair Trial Day (IFTD) to be observed every year on 14 June. This initiative is supported by more than 100 legal associations across the world, all of which are committed to the vital importance of the right to a fair trial and the serious challenges to due process rights worldwide. They established a Steering Group for the organization of IFTD. The Steering Group agreed that in each subsequent year, one country –where fair trial rights are being systemically violated– would be chosen as the focus country, and an event would be organized to mark IFTD, as well as a series of activities around the event to draw attention to the situation in that country. The events include holding a conference on systemic fair trial issues and making a public statement with concrete recommendations on how to tackle these. The decision to establish an IFTD was also accompanied by the establishment of the Ebru Timtik Award. Ebru Timtik is a lawyer from Turkey who lost her life on 27 August 2020 as a result of a 238-day hunger strike she undertook to protest against the systemic violations of fair trial rights which people in Turkey are facing. Every year, on the occasion of the IFTD, the Ebru Timtik Award is made by an independent jury to an individual or individuals and/or an organisation who have or which has made a significant contribution to the defence and promotion of the right to a fair trial in the focus country. The first IFTD focus country chosen was Turkey, in 2021. A virtual conference was held on 14 June 2021, to mark the occasion. The first Ebru Timtik Award was granted posthumously to Ebru Timtik herself. The second conference, which focused on the systemic fair trial issues in Egypt, took place in Palermo/Italy on 17-18 June 2022. Mohamed El-Baqer and Haitham Mohammadein, two Egyptian human rights lawyers who were in detention at the time, received the Ebru Timtik Award.
2023 International Fair Trial Day Focus Country: Mexico The Steering Group has expanded since 2021 to include a number of other prominent organisations taking part in the work, all as listed below. Several nominations were received for this year’s IFTD focus country. Following due consideration of the proposals, Mexico has been chosen as the focus country of 2023. This decision is based on the following: Reports on the situation in Mexico illustrate that many parts of the judicial system in the country suffer from systemic corruption, lack of effective protection of due process rights, ineffective and delayed investigations and trials, discrimination, and improper government influence. Accordingly, there are concerns that the judiciary of some courts and regions fail to provide an effective and timely remedy for those who are wrongly accused of violent crimes or who are victims of crimes or human rights abuses. This becomes more striking against the backdrop of an extremely high violent crime rate and impunity. Evidence of corruption within the judiciary and investigative authorities, among other state institutions, remains a fundamental concern. Reports emphasize that the involvement of the state security forces and prosecutors in criminal activities and ‘serious and widespread human rights violations, including torture, enforced disappearances, and extrajudicial killings with near total impunity’ is an acute problem. While Mexico is overall defined as a partially free country in the Freedom House Freedom in the World Report (with a 60/100 ranking), rule of law-related factors in the assessment downgrade Mexico’s ranking. Accordingly, the ‘due process rights protection’ ranking of the country is only ¼, while the ‘judicial independence’ ranking is 2/4. The Global Rule of Law Index of the World Justice Project places Mexico at the rank of 115 out of 140 countries worldwide. Mexico’s ‘criminal justice’ ranking in the Index is 128/140, while the ‘civil justice’ ranking is 131/140. The country is among the worst 10 countries when it comes to ‘corruption,’ ranking 134/140. Enforced disappearances and summary executions remain one of the most important human rights issues in the country, with the state institutions consistently failing to find an effective solution. In 2021 alone, at least 7,698 missing or disappeared person cases were reported, bringing the total number since 1964 to more than 100,000 people. The UN Committee on Enforced Disappearances visited Mexico in 2021 and shared its findings in 2022. These findings drew attention to the urgency and seriousness of the issue and urged the Mexican authorities to, among others, increase their efforts to combat enforced disappearances, take genuine steps to eradicate structural impunity, and facilitate coordination between different state institutions. Mexico is rated as one of the most dangerous countries for human rights defenders working on organized crimes, corruption, and crimes by state agents. They are targeted, face attacks, and, in some cases, are killed, abducted, and tortured for their legitimate human rights activities by members of organized groups or state agents. 15 journalists were killed between January and September 2022, and between January – June 2022, 12 human rights defenders were killed in Mexico. Despite the seriousness of these crimes, the cases often remain unresolved with impunity shielding those who are responsible. Arbitrary, prolonged, and unlawful pretrial detention, in many cases without any charges, is a further systemic issue in the Mexican justice system. Ordering pretrial detention is an obligation for the judicial authorities for those charged with several crimes without any regard to the evidence or circumstances of the case file. The widely criticized arraigo detention that allows prosecutors to obtain detention authorization for up to 40 days without a charge is a further problematic practice used to undermine the due process rights of the accused. These broad powers are extensively used by the judicial and prosecutorial authorities and as a result of their frequent application, prisons are overcrowded and prisoners face systematic human rights abuses and dire prison conditions. In an October 2021 filing of an application to the Inter-American Court on Human Rights, the Inter-American Commission on Human Rights underlined some of these systemic issues, particularly those related to the use of detention, torture, and ill-treatment within Mexico’s criminal justice system, and recommended that Mexico:
‘Adapt the country’s legal system to permanently eliminate the concept of arraigo, including the constitutional and legal norms that uphold this practice. While this is being implemented, ensure that all judicial operators who are called upon to apply the concept of arraigo cease to do so by invoking conventionality control, in light of the corresponding inter-American standards.
Provide appropriate training for officials working at the Office of the Deputy Attorney General of Tlalnepantla concerning the absolute prohibition of torture and cruel, inhuman, and degrading treatment during investigations of all crimes, including those that relate to organized crime, and implement a simple, easily accessible system for reporting any such acts.’ Similarly, in a September 2022 statement, the UN Working Group on Arbitrary Detention called on Mexico to urgently abolish mandatory pre-trial detention provided under the Constitution. According to the Committee, ‘[o]ne of the most serious consequences of mandatory pre-trial detention has been that many Mexicans spend more than a decade deprived of their liberty, awaiting trial, without sentence and in conditions of serious risk to their lives and personal integrity. It also contributes to prison overcrowding.’ In a judgment published in January 2023, the Inter-American Court on Human Rights also condemned the pre-procedural arraigo as well as the pretrial detention regulated in the 1999 Federal Code of Criminal Procedure, contrary to the American Convention on Human Rights. The Court ordered Mexico to: a) annul (dejar sin efecto) the provisions related to pre-procedural arraigo in its domestic law; and b) adapt its internal legal system on pretrial detention. Against this dire background, the Organising Committee of the IFTD agreed that focusing on Mexico in 2023 will help draw more attention to the systemic fair trial violations in the country. It will provide support to many human rights defenders, including lawyers and journalists, and judges who are still being targeted for their legitimate activities, who are arbitrarily prosecuted, detained, and who face trials severely lacking in due process and failing to respect fair trial principles. The IFTD conference will be held on 14 June 2023 in Mexico and will be co-hosted by Mexico-based organisations. Further details of the agenda and the speakers who will participate in the conference will follow over the next few months. For now, we invite you to hold the date.
Call for nominations for the Ebru Timtik Award The Organising Committee of the IFTD would like to also invite you to nominate one or more individual(s) or an organisation for the Ebru Timtik Award from amongst those who have demonstrated outstanding commitment and sacrifice in upholding fundamental values related to the right to a fair trial in Mexico. The individual(s) or organisation nominated for the award must be or have been active in defending and or promoting the right to a fair trial in Mexico through either his/her/their/its recent outstanding piece of work in relation to this fundamental right or his/her/their/its distinguished long-term involvement in fair trial issues.
The deadline for nominations is 2 May 2023.
To nominate, please send your nominations to nominationsetaward@gmail.com in English and kindly include: (1) the candidate’s detailed bio, (2) a letter signed by the nominating organisation/group of individuals explaining the reasons why they/it consider(s) that the candidate should be granted the Award, and (3) one recommendation/supporting letter from an unrelated, external organisation, if the application is submitted by a group of individuals. For the details of the award criteria and process please see the attached “Selection criteria for the grant of the Ebru Timtik Fair Trial Award”. After the deadline, a jury composed of independent individuals who are experienced with the right to a fair trial, including one or more from the focus country, will review and assess the nominations and determine the award recipient(s).
The undersigned organisations deplore the recent arbitrary designation of Günay Dağ as a “terrorist”. Günay Dağ is a lawyer at the International Bureau of the People’s Law Office and a member of the Progressive Lawyers’ Association (ÇHD). On 30 December 2022, he was added to the list called “list of wanted terrorists” published on the official website of the Ministry of Interior. For the past three years, Günay Dağ has been a political refugee. Although Günay Dağ has never been convicted of a criminal act of terrorism by a court, he is now being labelled as a “wanted terrorist” and member of a terrorist organisation. We fear that Günay Dağ is being identified with his clients or his clients’ causes as a result of discharging his professional functions, in contravention of international and universal law and standards relating to the role of lawyers. Alleged “terrorists” placed on the official list are subdivided into five categories: red, blue, green, orange and grey, according to the ascribed level of threat and/or importance. Günay Dağ has been included in the “green category,” with a reward of two million Turkish Liras offered for information leading directly to his arrest. This list published by the Ministry of Interior is solely based on the provisions of the “Regulation on Rewards to be Offered to Those Who Help in Exposing Terrorist Crimes or Seizing Evidence or Arresting Criminal Perpetrators”, which is known as the “rewards regulation”. However, this regulation does not provide any authorisation to the executive power to establish such a list, nor does it explain how the categories are to be determined or administered. Since the five colours have different amounts of monetary award, it is only known that the green category represents the medium level. This list has become an important tool for persecuting and prosecuting those who are considered as political opponents to the government. Critically, the list contains not only those accused of being directly involved with “terrorism”, but also lawyers that are representing them. With such financial incentives for tips leading to an arrest, which can go up to almost five hundred thousand EURO, it appears that the authorities are trying to reach even persons who have fled and are no longer on Turkish territory. The list includes a total of 971 people accused of being members of 19 different alleged “terrorist organisations”. The well-known journalist Can Dündar, who lives in exile, was also put on the list on 30 December 2022, thesame day as lawyer Günay Dağ, Over the course of several years, a number of legal actions have been initiated by State authorities in Turkey against lawyers in violation of the prohibition of identifying lawyers with their clients. (See Article 18 of the UN 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). One of the well-known cases of this type concerns the prosecution of 22 lawyers from the Progressive Lawyers’ Association (ÇHD), which has been ongoing for more than 10 years. Many of the accused ÇHD lawyers have been imprisoned for years, although they have yet to be irrevocably convicted of a criminal offense. Among them are Selçuk Kozağaçlı, the Chair of ÇHD and other colleagues working in the People’s Law Office. Most of them have been acting as lawyers in politically sensitive cases. However, despite the heavy pressure against them, our colleagues who are not yet detained are still trying to pursue their legitimate professional activities as lawyers. Arbitrary listing: The listing entails serious consequences for the person concerned who faces serious risks of imprisonment, stigmatization and other human rights violations. Yet the list lacks a proper legal basis for its implementation. So far, only a decree of the Ministry of the Interior regulates the remuneration for informants. There is no legal provision that regulates who can be put on the list, how persons may be removed from the list nor how the executive authorities may decide establishing such a list, nor how it is managed. The initiation and administration of the list is therefore arbitrary, contravening the principles of legality. Violation of the presumption of innocence, right to a fair trial and right to private and family life: The listing authority does not provide expressly for judicial review, nor does it spell out any procedures for review a judicial authority, despite the fact that listing necessarily results in a serious impairment of the exercise of the rights of those who have been listed. The designation of a person as a terrorist without having been sentenced by a court or tribunal and without due process violates the presumption of innocence and the right to a fair trial. These human rights established under customary international and guaranteed by treaties to which Turkey is a party, including the International Covenant on Civil and Political Rights (ICCPR, articles 9 and 14) and the European Convention on Human Rights (ECHR, articles 5 and 6). In this regard, the European Parliament recently strongly condemned the Turkish government’s disregard for the right to a fair trial in the context of the ECtHR’s 2019 case Kavala v. Turkey. Likewise, sharing personal information openly and illegally on the internet is a violation of the right to private and family life (ICCPR, article 17; ECHR, article 8). INTERPOL blocking Turkey’s list: A Red Notice is a request to law enforcement worldwide to locate and provisionally arrest a person pending extradition, surrender, or similar legal action. It is based on an arrest warrant or a court order issued by the judicial authorities in the requesting country. Member countries apply their own laws in deciding whether to arrest a person. Red Notices are published by INTERPOL at the request of a member country, and must comply with INTERPOL’s Constitution and Rules. In this context, we understand that INTERPOL has rejected most of the requests made by Turkey on the basis of this list, on the grounds that they lacked persuasive evidence and were politically motivated and therefore did not comply with binding INTERPOL regulations. In this regard, the Red Notice request for Can Dündar was rejected by INTERPOL. Conclusion and recommendations: In view of the above, the undersigned organisations call on the Turkish authorities to stop identifying lawyers with their clients or the causes they defend, including by putting an end to their listing as terrorists without due process and a fair trial. Additionally, we urge the Turkish authorities to remove lawyer Günay Dağ and all other lawyers from the “list of wanted terrorists” since their inclusion to this list is based on their legitimate activities as lawyers. Finally, the undersigned organisations call on the Turkish authorities to take all necessary measures to guarantee that all lawyers in Turkey are able to carry out their professional duties without fear of reprisal, hindrance, intimidation or harassment, in order to preserve the independence, integrity of the administration of justice and the rule of law.
This statement was endorsed by Alternative Intervention of Athens’ Lawyers. Asociación Americana de Juristas (AAJ) Association of Lawyers for Freedom (ÖHD) Avocats Sans Frontières (ASF) Center for Research amd Elaboration on Democracy/Group of International Legal Intervention Council of Bars and Law Societies of Europe (CCBE) Défense Sans Frontières – Avocats Solidaires (DSF-AS) European Association of Lawyers for Democracy & World Human Rights (ELDH) European Criminal Bar Association (ECBA) European Democratic Lawyers (AED) Giuristi Democratici Italia Haldane Society of Socialist Lawyers Indian Association of Lawyers Institut des droits de l’homme du barreau de Bruxelles International Association of Democratic Lawyers (IADL) International Bar Association’s Human Rights Institute (IBAHRI) International Commission of Jurists Judicial Reform Foundation Lawyers for Lawyers (L4L, the Netherlands) Lawyers’ Rights Watch Canada National Union of Peoples’ Lawyers (NULP, the Philippines) Progressive Lawyers’ Association (ÇHD, Turkey) Republikanischer Anwältinnen und Anwälteverein (RAV, Germany) The National Association of Democratic Lawyers [South Africa] Vereinigung Demokratischer Juristinnen und Juristen eV (VDJ)
This year, the International Day of the Endangered Lawyer focusses on Afghanistan. As set forth below, the situation confronting Afghan lawyers today is extremely dire. This report first outlines the applicable legal framework, highlighting the United Nations Basic Principles on the Role of Lawyers. Next, the report describes the situation of the justice system and the Bar in Afghanistan. It then illustrates the situation of lawyers and legal professionals through profiles of a number of individuals at risk. It also underscores the responsibility of other States regarding the calls for help coming from the Afghan lawyers. Finally, the report makes demands and recommendations in order to improve the situation of Afghan lawyers in Afghanistan and elsewhere around the world.
As last year, January 24 is the International Day of Endangered Law. This year the Day aims at raising awareness of the situation of lawyers in Aghanistan, after the withdrawal of the US forces and its allies. Exceptionally this year, our work is extended to the situation of judges and prosecutors due to the dire situation the legal institution is facing.
This year the report is directed at international actors and States who took part in the US invasion. It obviously makes no sense to address it to the Taliban government.
These acts and communications have already been confirmed:
1. London, 24 January – Haldane Society of Socialist Lawyers, demonstration 2. Online seminar by the Law Society of England and Wales and Lawyers for Lawyers, 19 January 2023, register here. 3. Dublin Ireland, Jan. 24th 10:30am (Irish time) Afghan Judges Speak, organized by the Bar of Ireland, here. 4. Lille France, Jan. 24, 11am CET, roundtable on Afghanistan and Ukraine organized by the Barreau de Lille, only in person and in French, here. 5. Lyon France:, Jan. 20th 9am CET, OIAD organizes physical and online conference 6. Montpellier, France: Jan. 27th 9am to 5pm CET: Montpellier Bar Association, Syndicat des avocats de France, Institut de droits de l’Homme de Montpellier, Ligue des droits de l’homme are organising a physical and online conference, here. 7. Nantes, France: Jan. 24th 6pm CET, opening of art exhibition, Palais de Justice 8. *US National Association of Women Judges and International Association of Women Judges*: Jan. 24th 6:15pm CET online session, here. 9. *The Hague, 24 January 2023, demonstration in front of the Afghan Embassy* 10. *Brussels, 24 January 2023, 10h00 – 11h30, CCBE, Press conference* 11. *Brussels*: Jan. 24th 1pm CET event organized by SED (via Facebook), here. 12. *Berlin* (RAV, RAK Berlin, VDJ, Strafverteidigervereinigungen, ,24 January, demonstration and seminar, here. 13. *Turkey, 24 January 2023, demonstrations in 6 cities.* 14.- Press Release CCBE – 24th January : International Day of Endangered Lawyers 2023. *To register, please contact our Head of Communication, Karine Métayer, only at the following address*: event@ccbe.eu 15.- Genoa and Venice BAR Associations hold a conference on the 25th January in Genoa. 16.- The BAR of Barcelona will publish the report on its website.
17. *Madrid*, Jan 24 13h30 Demonstration in front of the Ministry of Foreign Affairs.
Since 2010, the Day of the Lawyer in Danger is held on the 24th of January in different cities and countries around the world. This date was chosen because on January 24, 1977, five people, including three lawyers, were murdered in an office on Atocha Street in Madrid, where their law firm was located. Each year, the International Day is organized by the Coalition for the Endangered Lawyer, a network of national and international organizations and bar associations. The objective of this day is to draw the attention of governments, international institutions, civil society, the media and the general public to the plight of lawyers in a given country, in order to raise awareness of the threats they face in the exercise of their profession.
In previous years, the Day has focused on countries such as Colombia (2022 and 2014), Azerbaijan (2021), Pakistan (2020), Turkey (2019 and 2012), Egypt (2018), China (2017), Honduras (2016), the Philippines (2015), the Netherlands/Spain (2013) and Iran (2010). This year, the Day of the Endangered Lawyer focuses on Afghanistan.
On the 27th of January, AED is participating in an educational initiative. The focus will be on the situation of Afghan lawyers, the bar and the judicial system in Afghanistan, and the responsibility of other states to respond to Afghan lawyers’ calls for help. We will discuss the situation of lawyers and legal professionals in the world through the independence of justice and lawyers.
We will discuss the legal framework for the protection of the profession, in particular the United Nations Basic Principles on the Role of Lawyers and the European Convention on the Legal Profession which is currently being drafted.
Trial is an assault on political opposition and democratic norms before elections
[Istanbul: January 9, 2023] Current efforts to dissolve the second-largest
opposition party in Turkey’s parliament ahead of parliamentary and presidential
elections are the latest in a deeply problematic practice in Turkey of forcing
the closure of political parties, a group of 10 international and local non-governmental
organizations, including European Democratic Lawyers said today. Previous
efforts have violated the rights to freedom of association, assembly, and
expression, and to free and fair elections including the rights of voters to
elect their chosen representatives.
The Constitutional Court is currently being asked to order the closure
of the Peoples’ Democratic Party (HDP), a political party with 56 deputies in
Turkey’s parliament. An indictment against the party seeks to ban 451
politicians and party members from organized political activity or membership
of political parties for a period of five years and forfeiture of the party’s
assets. On January 5, the Constitutional Court agreed to a request by the chief
prosecutor of the Court of Cassation for the interim measure of freezing the party’s
bank accounts containing treasury support which political party groups in
parliament are entitled to receive. On January 10, the chief prosecutor is due
to give an oral presentation of the case against the party to the
Constitutional Court, which the HDP will respond to at a later date before the
court convenes to deliberate and then issue a final ruling.
The 10 organizations on October 11, 2022 submitted a third-party
intervention to the Constitutional Court arguing that arbitrary closure of
political parties violates multiple rights.
“International law guarantees the rights of political parties within the
frame of freedom of association,expression, peaceful assembly, and
views the rights of every citizen to take part in the conduct of public
affairs, to vote and to stand for election as core principles of democracy,”
said Philip Leach of the Turkey Human Rights Litigation Support Project. “The
case before Turkey’s Constitutional Court concerning the possible closure of
the Peoples’ Democratic Party is a fundamental test of whether the court will
abide by international law and respect democratic norms. Closing down a
political party without compelling grounds violates multiple rights and is an
attack on democracy.”
The case before
the Constitutional Court is based on a June 7, 2021 834-page indictment that mainly
asserts the HDP’s activities are carried out in line with the aims of the armed
outlawed Kurdistan Workers’ Party/Kurdistan Communities Union (PKK/KCK). According
to the indictment, there is an “organic” link between the PKK/KCK and the HDP’s
activities which the prosecutor claims support separatism by being “in conflict
with… the indivisible integrity of the State with its territory and nation,” a
violation of article 68/4 of Turkey’s Constitution and provisions in the Law on
Political Parties. The indictment accuses the party’s members and sub-bodies
and organs of having taken part in the commission of crimes of this nature or
encouraged them to be committed or praised these crimes and those who committed
them.
The NGOs argued
in their third-party intervention that the case against the HDP should be seen
in the context of Turkey’s long history of party closures which contrasts
starkly with the practice in other Council of Europe member states and has repeatedly
been found to violate the European Convention on Human Rights.
Since 1982, Turkey’s
Constitutional Court has ordered
the dissolution of 19 political parties out of the 40 cases it has reviewed.
The majority of these have been parties representing the interests of Kurds in
Turkey or leftist parties. The vague and widely drawn prohibition of acting “in
conflict with … the indivisible
integrity of the State with its territory and nation” has been the principal
charge. Three parties have been closed down on the equally vague grounds of acting
“in conflict with… the principles of the democratic and secular republic.” In
2008, President Erdogan’s Justice and Development Party itself narrowly escaped
party closure on the latter grounds.
The European
Court of Human Rights (ECtHR) has found that party closure decisions violated
the European Convention on Human Rights in six out of seven of the cases from
Turkey it has examined.
In its case law essentially
developed out of its rulings on those cases, the ECtHR deems restrictions or
closure of political parties to be exceptional and extreme measures. The court’s
criteria for examining the compliance of a party closure decision with the
European Convention on Human Rights is based on three tenets. The court assesses
whether the closure is prescribed by law, whether it pursues a legitimate aim,
and whether it is necessary in a democratic society and proportionate.
The
NGOs emphasized in their submission that in all the cases of parties
representing the interests of Kurds submitted to the ECtHR, the court found that
peacefully advocating the right to self-determination and recognition of
Kurdish language rights or Kurdish identity were not themselves contrary to the
fundamental principles of democracy, and that party closure violated the right
to association. The ECtHR determined
that in most cases the dissolution of those parties could not
reasonably be said to have met “a pressing social need”.
“The Constitutional Court should view the present case against the HDP in light of the repeated rulings of the European Court of Human Rights finding that closure of political parties in Turkey – in particular those representing the interests of Kurdish voters – violates fundamental rights. The extreme measure of closing down a political party serves to stifle pluralism and limit freedom of political debate, which is at the very core of the concept of a democratic society.”
The NGOs also examine the ECtHR’s recent findings in cases concerning
HDP members, a pattern of abuse of criminal proceedings to silence perceived
opponents and critics of the government and the evidence that the Turkish
government systematically interferes with the judiciary.
The NGOs submitting the third-party intervention to the Constitutional
Court are: ARTICLE 19, the Association of Lawyers for
Liberty (ÖHD), the European Association of Lawyers for Democracy and Human
Rights (ELDH), European Democratic Lawyers (AED), the Human Rights Association
(İHD), Human Rights Watch (HRW), the International Commission of Jurists (ICJ),
the International Federation for Human Rights (FIDH), Rights Initiative
Association, and the Turkey Human Rights Litigation Support Project (TLSP).
The Day of the Endangered Lawyer is an initiative started by AED‐EDL in 2010, on behalf of the lawyers of Iran. The date of 24 January was chosen in remembrance of the assassination of 4 trade union lawyers and one employee in Atocha Street of Madrid in 1977 (Massacre of Atocha), during the Spanish transiciòn after the death of the dictator Franco (in 1975).
The countries denounced have been: Iran, Turkey, the Basque country, the Philipines, Colombia, Honduras…
On the 24th of January 2023 our initiative will be dedicated to the plight of Afghan lawyers, especially after the US left the country to the Taliban.
The undersigned bar associations and international lawyers’
organisations call for the Islamic Republic of Iran and its agencies to protect,
promote, and support the following basic rights:
1) the independence of the legal profession;
2) the principle of lawyer-client confidentiality;
3) the right to have access to a legal representative;
4) the right to prepare a defence.
This joint statement has been issued to help secure immediate,
coordinated, multi-sectoral action on legal independence in Iran to guarantee
lawyers practice their profession without fear of repression or persecution.
Since the 1979 Islamic Revolution and increasingly over the years,
the legal profession in Iran has lost its independence and lawyers have been
subjected to detentions, harassments, and persecutions.
Policies and
practices have been established by the regime that restrict and violate the
independence of lawyers and judges, which leave the hands of the state open to
convict those that “deviate” on charges such as “conspiracy against national
security”, “propaganda activities against the Islamic Republic of Iran” and
“cooperation with hostile states”.
Note to Article 48 of Iran’s Code of Criminal Procedure among others[1] is particularly problematic.
Note to Article 48 of the Code of Criminal Procedure states: “In cases of crimes against internal or external security, and in cases involving organized crime, where Article 302 of this code is applicable, during the investigation phase, the parties to the dispute are to select their attorneys from a list approved by the head of the judiciary.” In this note, lawyers are divided into two categories: lawyers who are trusted by the head of the judiciary and those who are not. The criteria on the basis of which trusted lawyers are appointed are set by the head of the judiciary. It is noteworthy that Article 48 of the Code of Criminal Procedure stipulates that: “When a suspect is arrested, he or she can request the presence of an attorney. The attorney, observing the secret nature of the investigation and the negotiations between the parties, should meet with the suspect. At the end of the meeting, which should not last more than one hour, the attorney may submit his or her written notes to be included in the case file.” However, the Revolutionary Courts, where “security-related” cases such as those involving human rights, political, and civil activists, are much less transparent than Public Courts. The judges at the Revolutionary Courts are known to abuse their legal powers. They deny access to legal representation during the investigation phase and prevent lawyers from accessing client files on the basis of confidentiality or that lawyers have insufficient “qualifications” to review certain files.
Systematic pressure: Lawyers in Iran are systematically pressured and harassed
in various ways. Lawyers who undertake cases despite such restrictions are
often threatened, intimidated, and ultimately imprisoned. Bureaucratic
requirements, and even reprisals against lawyers (usually depending on the
nature of their case) often make it extremely difficult for legal professionals
to supply their clients access to adequate defence, and thereby restricts the
ability of defendants to receive and access a fair trial.
Threats and arrests Over the years, restrictions and
threats against lawyers in Iran have caused many in the profession to avoid
defending the people that need it most, including minorities and other
marginalized defendants as these are often the most politicized cases. Since the death of Mahsa Amini, a 22-year-old Kurdish
girl who died in a hospital in Tehran due to injuries sustained by authorities
after she was arrested by the “morality police” for wearing an “improper hijab”,
and start of the nation-wide unrest, more than 430 human rights defenders[2]
have been arrested, including at least 22 lawyers.
Calls of interest
In
line with the basic principles on the role of lawyers, and in consideration of the above, we signatories of this statement call on the Islamic Republic of Iran and all
its related agencies to take
immediate steps aimed at protecting and supporting the independence of the
legal profession and lawyers in Iran.
Considering
some members of the Judiciary including its head are appointed by the Supreme
Leader, both the state and the Judiciary must dissociate themselves from
independent lawyers. The state must ensure all persons are entitled to
call upon the assistance of a lawyer of their choice to protect and establish
their rights and to defend them in all stages of criminal proceedings. This
includes the lawyers, who are now themselves, incarcerated.
Laws and regulations must
be amended, and state practice must be changed to ensure the following:
Lawyers
are able to perform all their professional functions without intimidation,
hinderance, harassment, or improper interference. The state must also ensure
that lawyers do not suffer, or be threatened with, prosecution or
administrative, economic or other sanctions for any action taken in accordance
with recognized professional duties, standards and ethics.
Lawyers
are adequately safeguard by authorities
where their security is threatened as a result of discharging their functions.
Lawyers
are not identified with their clients or their clients’ causes as a
result of discharging their functions.
The
right of an attorney to appear before a court or a public authority shall not
be restricted.
Lawyers
must have access to appropriate information, files and documents in
their possession or control in sufficient time to enable lawyers to provide
effective legal assistance to their clients. Such access should be provided at
the earliest appropriate time.
In the 43 years of the ruling of the Islamic Republic of Iran,
lawyers have been systematically pressured and harassed in various ways. One of
the things that restricts lawyers in the field of defence is the establishment
of rules and regulations that ignore the matter of defence and deprive lawyers
of the freedom to defend their clients. When they do represent their clients
despite such restrictions, they are often threatened, intimidated, and
ultimately imprisoned. Threats against lawyers in Iran continue to grow and
lawyers find themselves under increased surveillance. We, the undersigned, demand that the Islamic Republic and its agencies
respect and support the following:
Immediate release of all lawyers arrested for any action taken in accordance with
recognized professional duties, standards and ethics.
Immediate cease of prosecution of all lawyers prosecuted for any action taken
in accordance with recognized professional duties, standards and ethics.
Complete preservation of the independence of the legal profession.
Right of individuals, lawyers included,
under the rule of law.
Right of the accused to be accorded a fair trial.
Right of the
lawyers to undertakethe representation of clients (including other lawyers) or
causes without fear of repression or persecution.
Signed by:
International Bar Association’s Human
Rights Institute
German Federal Bar
European Association of Lawyers for
Democracy and Human Rights
Association of Lawyers for Freedom (Özgürlük için
Hukukçular Derneği)
Defence Commission of the Barcelona Bar
Association
European Democratic Lawyers
Association of Berlin Defence Lawyers (Vereinigung Berliner
Strafverteidiger)
Republican Lawyers Association (Republikanischer Anwältinnen-
und Anwälteverein)
Montpellier Bar association
Human Rights Institution of Montpellier
Progressive
Lawyers’ Association (Çağdaş Hukukçular Derneği)
Hanseatic Bar Hamburg, Germany (Hanseatische Rechtsanwaltskammer
Hamburg)
[1] Article 191, Article 346, Note to Article 346,
Article 385, Note to Article 297
