NEWS
  • Modified Date : 04.08.2016 16:46
  • Created Date : 02.08.2016 18:27
  • Activity Date : 02.08.2016

STATE OF EMERGENCY CANNOT BE MAINTAINED WITH NEGLIGENCE AND VIOLATION OF RIGHT TO DEFENSE. JUSTICE CANNOT POSSIBLY BE ESTABLISHED IF RIGHT TO DEFENSE IS NEGLECTED AND BREACHED.

Even before traitors of the attempted coup on July 15 became clear, we have announced on our website at 01.25 a.m. that we are against the coup and we are bound up with democracy and constitutional system as Istanbul Bar Association and we have indicated the urgent need for the removal of this dark structure, which turned ou to be a malignant tumor, from the capillary vessels of state. We have also underlined the importance of a determined struggle with the externally-supported puppet of imperialism, which is a national security problem to be dealt without delay  for the existence, survival and continuity of the state. We keep our determined stance.

Evaluating the state of emergency in its legal perspective, we have expressed our concerns arising from some previous practices of the political power and we have expressed our regrets arising from the rightness of our concerns in our recent statements.

This time, we have witnessed that recent regulations introduced under the statutory decree issued are beyond the level of our concerns and the provisions interspersed throughout these regulations are threatening for the right to defense.

To summarize the recent regulations:

1.     The meeting of the prisoners with their lawyers shall be recorded audio-visually with technical equipments.

2.     A staff shall stand by to monitor the meetings of the prisoners with their lawyers.

3.     All documents and copies of documents handed by the prisoner to his lawyer and by the lawyer to the prisoner can be seized.

4.     Day and time of visit for the lawyers can be restricted to a certain day and time for each prisoner.

5.     Law offices can be searched and documents can be seized without the warrant by a judge in absence of the prosecutors.

6.     The documents belonging to the other clients of the lawyer (whose office is searched) can be seized even if objection is raised.

7.     Authority of the defense counsel to review the content of the file and to take copies of the documents can be restricted with the prosecutor’s decision. 

8.     Right to confer with a lawyer of the detained suspect can be restricted for up to 5 days with the prosecutor’s decision.

As a legal organization, we have to note down in the legal history the exremely serious and grave results of each of these new provisions restricting right to defense, preventing the lawyer to fulfill his duty, and even jeopardizing the position and existence of the lawyers, and we have to make our warnings thereupon. These restrictions may lead to discussions over torture and ill treatment, allegations concerning violations of right to fair trial, violations of the rights guaranteed under Article 15 of the European Convention on Human Rights (ECHR) and discussions over legitimacy. In other words, these regulations  carry extraordinary features, even with respect to the state or emergency. While these regulations are jeopardous with respect to the state governed by the rule of law, they are threatening the state governed by the rule of law.  

If it is expected that the grave results of the coup attempt figured within the legal definition would be achieved by breaching right to defense, we would like to warn in advance that totally reverse results, contrary to what is expected by a large majority of the society, may inevitably be the case.   Constitution of  proper proceedings with all its elements is possible through the belief that right to defense is divine and irrevocable, independent from the gravity of the offebnse and the identity of the offender,  not only for a distinction between damp and dry [innocent and guilty]. Law and justice cannot be established by neglecting and violating the defense.

The rights the lawyers are entitled to are not privileges. Moreover, these rights are not peculiar to the lawyers. Restriction of lawyers’ rights has a direct impact on right to fair trial. “Crippling” of these vital proceedings, which will undoubtedly be an important milestone in our history, yet at the investigation phase,  may damage the values which are protected. These recent regulations render the existence of lawyers during investigation phase redundant and meaningless and abolish his [the lawyer’s] function. These provisions are unacceptable and cause professional trauma and deformation with respect to the lawyers whose sole goal is to exercise right to defense and justice.  

We would like to reiterate that anyone who belongs to this dark structure and supports it in one way or another should be held accountable before the law no matter what their title and position is and they shall pay the price to “law”. However, law, the state governed by the rule of law, right to defense and the lawyer as the representative of this right should not be made to pay this price.

We go on with our expectation and support for the removal of this dark structure and for the coup plotters to be held accountable before the law in a determined manner.

Our struggle is for the compliance with law against the possibility that coup-plotters and their supporters may distort and reconstitute the [current] process. This will strenghten the legitimacy and effectiveness of the investigation and proceedings in the eye of the society and will be a decisive response to this desperate attempt.  

Therefore, the political power and the judiciary should aim at an understanding of struggle that remains within the boundaries of law.

Respectfully released to the public.

             PRESIDENCY OF ISTANBUL BAR ASSOCIATION

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