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The IBA’s response to the situation in Ukraine
Since the attempted coup on 15 July, Turkey has witnessed a widespread crackdown on state institutions, media outlets and civil society and the government’s decision in early October to extend the state of emergency by a further 90 days has raised renewed concerns over human rights and access to justice in the country.
Immediately following the coup attempt the authorities detained around 2,800 rebel soldiers and at least 2,745 judges and prosecutors with suspected links to US-based Turkish cleric Fethullah Gülen, founder of the Gülen movement which the government blames for the failed coup and has designated a terrorist organisation. Thousands more soldiers, civil servants, judges, prosecutors, journalists, teachers and academics have since been detained, suspended or dismissed.
Sidika Baysal Hatipoglu, managing partner of B+B Law Firm in Istanbul and vice-chair of the IBA European Regional Forum, says the extension of the emergency powers, which enable President Recep Tayyip Erdogan to rule by decree and make decisions that cannot be overturned by the country’s Constitutional Court, has removed detainees’ access to remedy altogether.
‘Of course, you always have rule of law and access to justice issues when there’s a state of emergency because lawyers are not able to see the files while their clients are under arrest, says Baysal Hatipoglu. ‘However, I am worried and curious because there might be some innocent people amongst these judges and prosecutors that have been dismissed, which would create a justice problem. I believe the state of emergency was necessary for the first three months, but I am frankly not sure about the extended version, which gives the authorities even more powers because people will not be able to get an immediate remedy against the decisions taken during these six months.’
Ümit Hergüner, a senior partner at Hergüner Bilgen Ozeke in Istanbul, agrees the decrees have unleashed a worrying chain of events. ‘The significant curtailment of rights under the state of emergency has certainly proved demoralising for Turkish lawyers,’ he says. ‘For instance, emergency decrees have permitted arrest warrants and search warrants to be issued directly by prosecutors if the exigencies of the situation required bypassing the courts. The decrees have also allowed the seizure of otherwise privileged correspondence, such as between a suspect and their lawyer or spouse, even if the correspondence was in the possession of the lawyer or the spouse.’
Sidika Baysal Hatipoglu
Managing partner, B+B Law Firm, Istanbul and vice-chair of the IBA European Regional Forum
Under the state of emergency the Turkish security agencies now have the right to detain individuals for terrorism or coup-related offences for up to 30 days – a huge increase on the standard four-day period – and they are denied access to a lawyer for the first five days in police custody.
Hergüner says these and other moves have severely undermined detainees’ access to justice: ‘Under the decrees, defence counsel’s access to the file against their client could be restricted by the prosecutor if access would undermine the purpose of the investigation; it is indeed widely reputed that evidence that is disclosed to defence counsel is often less than the entirety of the evidence against a particular defendant. Also, the decrees did away with the principle of the privacy of communications with defence counsel if there was assessed to be a threat of secret messages being passed between the lawyer and the client.’
Ayse Bingöl Demir, a human rights lawyer based in Istanbul, says the decrees have severely hampered the judiciary’s ability to act independently and the knock-on effect on the wider legal profession is palpable. ‘What we’re seeing right now after the extension of the state of emergency, the introduction of the decree laws and the way the judiciary has been handling the situation it seems like the judicial system is not functioning properly,’ she says. ‘This means that although there are rules that are supposed to protect lawyers’ practice, they are not necessarily implemented or applied. And most notably most local bar associations have been really reluctant to speak out. Unfortunately the legal profession is alone at the moment and doesn’t have much support, making it very hard for lawyers to continue their work, especially if they are working on sensitive cases.’
Bingöl Demir and others express concern that the return of incommunicado detention risks exposing detainees to torture and mistreatment. ‘Incommunicado detention is something that we are so against because it opens up suspects to torture or mistreatment and we’ve been hearing a lot of allegations about this,’ she says.
Juan Méndez, who recently stepped down from his second term as UN Special Rapporteur on Torture, told Global Insight that the Turkish government postponed his planned visit to the country in September ‘invoking the complications of the post-attempted coup – which of course was the main reason for me to visit, especially given the thousands of detentions resulting from it.’ Méndez said he hoped the invitation would be extended to his successor, Nils Melzer, Human Rights Chair at the Geneva Academy of International Humanitarian Law and Human Rights, before the end of 2016.
In the meantime, lawyers in Turkey are anxious to see the state of emergency brought to an end. ‘Lawyers are mostly concerned about how and when the rule of law will be restored,’ says Hergüner. ‘Just like the public at large, lawyers also want the government’s emergency powers to end fairly quickly. While we all feared what would have happened had the coup succeeded, we are also concerned that the pendulum swinging too much the other way could be just as undesirable. Specifically, lawyers are concerned that the state of emergency has in practice eroded the principle of the separation of powers.’