By LEVENT YILDIRIM
Only one day before their court hearings, lawyers of Nuriye Gulmen and Semih Ozakca, the jailed hunger strikers of Turkey, have been arrested. The warrants were issued for 18 lawyers, all members of two law offices defending the teachers.“The detention of our colleagues today is an attempt in vain to leave Gulmen and Ozakca defenceless,” a lawyer representing the pair told Reuters.
Although a race is going on to violate the rights and freedoms during the investigations and prosecutions that have been conducted in Turkey for more than a year now, one of the most violated rights during this time has been the right to defence. The right of defence is secured under both national law and the Constitution and the European Convention on Human Rights.
Public prosecutors are authorised to file criminal prosecutions and represent the public in criminal procedures. In other words, when a victim files a complaint against someone, the case is not automatically opened against the accused. First the public prosecutor completes his/her investigation, and if s/he reaches a conclusion that there is a strong suspicion of a crime, s/he files a public prosecution and s/he represents the public at the court. The victim, on the other hand, if there is a risk of being harmed by the crime, can only attend the court hearings and will have the right to take legal steps. Filing a case does not mean that the accused is counted guilty. By filing a case, the prosecutor asserts a claim against the accused and requests the court impose a penalty on the accused. In response to this, the accused defend themselves against the claims.
The court hears both the prosecution and the defence. Based on the presented evidence, if the court reaches an absolute result, it will issue a verdict. That is, in judicial procedures, while the prosecutor is one foot of the trivet, who represents the public, the defence is another foot. While the law has given broad authorities to prosecutors, it also entitled the accused some broad rights. Most important ones of these rights are the right of defence and the right of benefitting from legal counsel -the right of choosing a lawyer.
Despite the fact that it is held very significant and explained in the laws in full detail, the right of defence is being ruthlessly trampled in recent times. Although the Constitutional Court had been issuing hundreds of decisions about infringements of rights even for tiny irregularities, today, the right of defence is being taken severely and recklessly away from the accused and the suspects.
With the Emergency Law Decrees issued during the current state of emergency; the laws are unlawfully and arbitrarily changed, innocent people are not only detained and victimised, they are also stripped of their rights of defence. As soon as the investigations are started, access to all the files are blocked and on the basis of the amended law, public prosecutors are now able to issue orders of secrecy without needing a court order.
The way that all of the public prosecutors in all the court houses of the country are giving orders of secrecy for all of the investigation files launched against more than 150 thousand people; the way that the investigations are conducted and the legal procedures are implemented, quite clearly show that the orders of secrecy are issued as a result of an executive order given from the government centre. As if unlawfully dismissing innocent people from their jobs, arresting, and then putting them under detention are not enough, by issuing unjustified, baseless, high-handedly written orders of secrecy, the investigation files are hidden away from the accused right from the start; and people are kept in prisons for months, not knowing even what they are accused of. The contents of the case files are kept very secretive, as if they are filled with many hard evidence, and many of the documents are not uploaded onto UYAP (national judicial network project) because they are not scanned, and those that are scanned are uploaded as confidential files. Especially when the individuals, who have no knowledge about law and do not know how to prepare their statements, require to hire a lawyer, they face with various difficulties. Many lawyers have been tried or even imprisoned just because they wanted to defend the suspects of these cases.
With another change in the law conducted with the Emergency Law Decree, now they can apply bans on lawyer visits. In other words, there are cases where an arrested person is unquestioningly kept under detention for days, without being able to see their family members or lawyers, and being deprived of most fundamental needs.
The right violations that have peaked during the investigations are also continued during the prosecutions. These right violations carry on even after the orders of secrecy are removed when the indictments are accepted by the courts and the people can have access to their case files. Especially those who financially cannot afford to hire a private lawyer, request lawyer from the bars which is obliged to appoint a lawyer to people who cannot afford. During the Ergenekon & Balyoz Trials, Ümit Kocasakal, Istanbul Bar President, had been present at every court hearing and witnessed the trials as observer, ignored his position as being an observer, incited and organised other lawyers at the courtroom against the court members.
However, despite the fact that appointing a lawyer is legally mandatory when a defendant requests so, Ümit KOCASAKAL has replied the requests for lawyer appointment with these words: “Am I that stupid to appoint lawyer to the suspects of Fetö! Of course, we did not appoint anyone for them, and we will not!”
After using such statements under normal judicial circumstances, he should have been immediately disbarred let alone being allowed to remain as the head of a Bar. In many places, for both interrogations and statutory defence duties, solutions are sought to find lawyers by writing to the bars. The reason why the lawyers do not want to take the defence of these cases is not because of the situation of the accused or the suspects, or the content of the files, but it is because of the systematic pressure, and the fear of falling into trouble. Nevertheless, the violations do not end for the accused even if they manage to find a private lawyer, or accepted the lawyer appointed by the bar association.
Requests by many accused for being personally present at the courtroom where the hearing is held are rejected despite the existence of very serious accusations against them, and the rights violations and long arbitrary detentions they are facing with. They are forced to make their oral statements over an online audio-visual system. Because of the technical problems of this system, not all of the oral statements of the accused is recorded into minutes, while, when their speech is found too long, the volume of the system is turned down. On the other hand, they are not able to face with the claimed evidence or ask questions to the witnesses present at the court hearing, nor can have an interview with their lawyers. As for many courts, statements of the witnesses are taken with orders, and they are not faced with the accused at all, and the accused persons are denied the right to ask questions to the witnesses. Meanwhile, in order to make it more difficult for the accused to prepare their defence statements, some bans are imposed in the prisons and on the social media, under the name of “necessary measures”. In prisons, books are banned for ridiculous reasons, and letters of application and petition samples that are sent to the prisons, are rejected and not allowed to be taken into prisons. When the detainees -who cannot reach the books, law texts and other legal documents they need- are also denied to reach the documents sent by their family members, they are then left completely stripped of their rights to defend themselves. Access to many social media links, which provide samples of statements and application letters, is denied with written and reasonless orders.
All these preventions and similar restrictions are elaborately planned and systematically applied in order to hinder the people from claiming their rights and defend themselves, and prevent the committed violations from being uncovered. In order to run the investigations and interrogations with executive orders, and to preclude the revealing of the very seedy outlawry, they are trying to hurriedly finish the trials against the accused, convict them and close the files as quick as possible.
Thinking of the possibility of the cases to be re-opened and the perpetrators of these unlawful treatments to be brought into account and used as evidence against them in future, they are trying to prevent these unlawful acts from being mentioned in the court files by systematically restricting the use of the right of defence. The fact that different members of the judiciary in all around the country committing the same unlawful acts shows that such procedures are performed with an order given from one centre.
Although the members of the judiciary, who are carried away by the influence of the power holders and yielded themselves to the period of outlawry and ingratiation, and issued every type of unlawful decrees, seemed to have secured their positions today. However, when all these unlawful activities and treatments will be disclosed and the violations of rights will be declared with the decrees of the national and international courts, they will not be able to hide behind any excuses and will be held responsible for all the material and moral damages they had caused. Although they are acclaimed as heroes by the biased media today, when the law and democracy is re-established in the country, due to the harms they had given to the country and the victimisations they inflicted upon innocent people, they will be convicted in the court of conscience, will lose their credit in public’s eye and fall into disgrace.
- [OPINION] Right to Defence is Abolished Under The State of Emergency in Turkey - 14/09/2017
- [OPINION] Sad Story of Independence and Objectivity ofthe 16th Penal Chamber of the Court of Cassation - 13/09/2017
- [OPINION] Statement of Judicial Council (HSK) Board of Inspectors Chairman: Investigation Procedure for Judiciary and End of Judicial Independence in Turkey - 29/07/2017