Mr Mehmet Ali Sahin, Minister of Justice
Ministry of Justice,
TC Adalet Bakanligi
06659 Kizilay/Ankara
Turkey

18 December 2007

Dear Minister Mehmet Ali Sahin,

We are writing on behalf of the International Bar Association’s Human Rights Institute (IBAHRI) to express our concern about reported threats to the independence of legal profession in Turkey.

In its role as a dual membership organisation, comprising 30,000 individual lawyers and over 195 Bar Associations and Law Societies, the International Bar Association (IBA) influences the development of international law reform and shapes the future of the legal profession. Its Member Organisations cover all continents. The IBAHRI works across the association, helping to promote, protect and enforce human rights under a just rule of law, and to preserve the independence of the judiciary and the legal profession worldwide

Our concerns relate to a series of alleged violations of the rights of judges, lawyers and prosecutors involved in different stages of the prosecution of two members of the military intelligence unit and one former member of the Kurdistan Workers Party (PKK). The case followed the bombing of a bookshop in the town of Semdinli in November 2005.

The IBAHRI has learnt that the local court ruling that found the two members of the military intelligence unit and the former member of the PKK guilty of the bombing was overturned by the Supreme Court of Appeal, who requested that the case be transferred to a military court. The local court judges responsible for the guilty verdict expressed their disapproval at this request, claiming that the trial should remain under their jurisdiction. The local court judges involved have since been assigned to other provinces or demoted; it is reported that the judges who replaced them immediately approved the transferral of the Semdlini case to the military courts.

The IBAHRI is further concerned at a related investigation into eight lawyers who expressed similar dissatisfaction at the way the Semdlini case was handled. As provided for under Turkish domestic law, the eight lawyers launched a third party intervention, criticising the decision of the Supreme Court of Appeal and expressing disapproval at the then Public Prosecutor, Sezgin Kaymaz and his office. The Public Prosecutor filed a plea over these statements and called for an investigation into the eight lawyers. The lawyers have been named as Ayhan Çabuk, head of the Bar in Van; Murat Timur, member; Bekir Kaya; Kerem Akdoğan; Cüneyt Caniş; Selçuk Kozağaçlı, Ankara Bar; Bahattin Özdemir, İzmir Bar; and Mehmet Ekici, registered with the Bar in Hakkari. The Ministry of Justice has recently approved the investigation and the lawyers have allegedly been threatened with the possibility of being taken to court and disbarred.

The IBAHRI also received reports that the local public prosecutor involved in the Semdinli case, Mr Ferhat Sarikaya, was dismissed from his duties by the Supreme Board of Prosecutors and Judges (HSYK) in April 2006 for allegedly exceeding his authority. The prosecutor had reportedly suggested that the bombing was a deliberate attempt to undermine Turkey's democratization process by stirring up Kurdish unrest. There is no possibility of appeal against the decisions of the HSYK.

The IBAHRI would like to draw your attention to principles 16 and 20 of the United Nations Basic Principles on the role of Lawyers. Article 16 upholds that lawyers are ‘able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference’ and shall 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’. Article 20 further provides that lawyers ‘shall enjoy civil and penal immunity for relevant statements made in good faith in written or oral pleadings or in their professional appearances before a court, tribunal or other legal or administrative authority’.

We would also like to express our concern at the treatment of the local court prosecutor Mr Ferhat Sarikaya and the alleged removal and demotion of judges from the same court.  In this regard the IBAHRI would like to draw your attention to the United Nations Guidelines on the Role of Prosecutors. Article 4 states that prosecutors are ‘able to perform their professional functions without intimidation, hindrance, harassment’ and Article 15 states that ‘prosecutors shall give due attention to the prosecution of crimes committed by public officials, particularly corruption, abuse of power, grave violations of human rights and other crimes recognized by international law and, where authorized by law or consistent with local practice, the investigation of such offences’. Furthermore, Article 2 of the United Nations Basic Principles on the Independence of Judiciary states that ‘The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason’.

The IBAHRI is also concerned that procedures of the HSYK do not provide judges and prosecutors  the right to a fair trial due to the lack of the right to appeal against  its decisions. In this respect we would like to remind Turkey of its obligations under the European Convention on Human Rights (ECHR) and the United Nations International Covenant on Civil and Political Rights (ICCPR). Article 6 of the ECHR provides that ‘everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’. This principle is also protected under Article 14 of the ICCPR which adds that ‘everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law’.

The IBAHRI respectfully recommends that a full investigation be carried out into the above allegations. We further request an independent and impartial review of the findings of the HSYK against prosecutor Mr Ferhat Sarikaya. All results of such investigations should be made public. Further we should like to receive your assurances that the rights to fair trial encompassed under international law and under Turkey’s Constitution are respected for all citizens, including members of the legal profession. We would welcome your response to the concerns of the IBAHRI.

Yours sincerely,

Ambassador Emilio Càrdenas                         
Justice Richard Goldstone
Human Rights Institute Council Co-Chairs

CC:  H.E. Mr Mehmet Yiğit Alpogan, Turkish Ambassador to Britain;
        President, Ankara Bar Association;
        President, Izmir Bar Association;
        President, Van Bar Association;
        President, Hakkari Bar Association;
        President, Turkish Bar Association.