- Modified Date : 24.11.2016 18:39
- Created Date : 25.11.2016 14:22
- Activity Date : 25.11.2016
ISTANBUL BAR ASSOCIATION WARNS : THAT DOES NOT WORK IN THAT WAY!
The Decree-Laws no 675 and 676 which came into effect by being published on the Official Gazette on Saturday, October 29, 2016 show that the warnings which we have tried to point out since the beginning of OHAL (state of emergency-SoE) have, unfortunately, not been taken into consideration. However, these approaches which contain the legal principles each of which was made reach to general consent by the universal law are "sine qua non" in a state governed by the rule of law.
SoE practice is restricted in terms of its location, time and scope. With the Decree-Laws issued as required by SoE, only the regulations which remain within the same scope can be recommended. However, the regulations made do not mean anything except for the indicator of that SoE will be made permanent.
In accordance with the principles introduced with the Article 90 of the Constitution, the declaration of SoE within the framework of the article 15 of the European Convention of Human Rights does not make the new regulations introduced with the Decree-Law no 676 rightful. It is understood that it is thought that the European Convention of Human Rights "which is considered to have been suspended" is not in force any more. However, this opinion is fundamentally wrong. The non-observance of the criteria set forth in the article 15 of the Convention will have serious outcomes.
In this regard, the presumption of innocence should be evaluated meticiously. To enter into such transactions that result in conviction with the subjective evaluations without any judicial decision is not the judicial methods of a civilized world.
The civilized countries may not disregard the right to fair trial. With neither SoE nor the Decree-Laws issued within that framework, the right to a fair trial may be restricted. Fair trial is a right, is a must.
The civilized country is a country which allows for access to justice. Ensuring the access of the citizens to justice and eliminating the obstacles in front of it are not a principlism which can be given up due to SoE.
The fundamental right in which all of these rules come into existence is the right of defense. The restriction of the right of defense is the most fundamental obstacle disabling the proceedngs. The activity which is performed by restricting the right of defence may not be "proceeding".
All of the rules underlined above were completely disregarded within the process of SoE and Decree-Laws. This points out the severity of the course. It is not possible to execute the course with this perception.
Let alone that many regulations which were introduced with the previous decree-laws and which we specifically requested to be amended were amended, that they were reinforced further and fortified with new applicable articles is the fundamental reason for our concerns.
We have been mentioning that these provisions should be immediately removed by drawing the attention to the restrictions imposed on the negotiations which the lawyers will make with the suspect for a long time. We characterized this situation as the crippling of the proceedings at the investigation stage and pointed out that the suspects of today may bring breach decisions from the European Court of Human Rights tomorrow due to these regulations only by using accusing expressions in order to draw the attention further.
It is understood that these warnings of us are not taken into account, as well. The new provisions introduced add new severities to the current situation.
1. Whether the persons having the capacity of "lawyer" can take charge in that proceeding or not can be decided without any judicial decision.
2. The meetings which the convict can make with their lawyers in the penal institutions can be extended for quarterly periods for many times and can be recorded as sound or video with a technical device. An officer can be present during the meeting, no document exchange can be made between the convict and his/her lawyer, even they can be seized and the day and time of the negotiations can be restricted.
3. The number of lawyers to be present in the hearing may not exceed 3.
4. It shall be possible to initiate an investigation/prosecution also against the lawyer due to his/her approaches during his/her advocacy duty.
5. In the cases where the presence of a lawyer is mandatory in accordance with the Code of Criminal Procedure, although the realization of this requirement is also under the liability of the state in a state governed by the rule of law, the mandatory right of the defendant to request for a lawyer shall not be revoked and this state shall not be deemed as obstacle for the continuation of the trial just due to the reason that the lawyer does not appear in the trial without an excuse.
6. In addition to these, the right of the suspect in custody to negotiate with the lawyer can be restricted for a period of twenty four hours with the decision of the judge upon the request of the public prosecutor by reviving the article 10 of the Anti-Terror Law, which was abolished. Within this time frame, that no statement can be taken shall not prevent allowing for unlawfulness.
7. The office of chief public prosecutor can request from the bar administration to replace the lawyer notified by the bar.
IT IS NOT POSSIBLE TO ACT AS A LAWYER UNDER THESE CONDITIONS; THE INDIVIDUAL'S RIGHT TO TAKE ADVANTAGE FROM THE ASSISTANCE OF A LAWYER IS UNREASONABLY ELIMINATED.
The rights which we, as the lawyers, claim are the claims within the context of the realization of the people's right to legal remedies. It should not be considered that we claim a professional privilege. We completely request for the implementation of the requirements of the universal law which the State of the Republic of Turkey, as a leader state, is required to protect and the European Convention of Human Rights of the European Council of which we are a honourable member and party within the process of SoE.
It should be remembered that OHAL (State of Emergency) is an exceptional situation within the law order. However, it should be remembered that it is a law institution as well as it exhibits the exceptionalism and tentativeness characteristics and it should be recalled and known that it does not allow for arbitrariness.
Those who wrote these regulations should know that the rules which they take the risk of breaching will be paid back as new legal lessons tomorrow. This warning of Istanbul Bar Association which run the risk of fighting with this community and paid the price within the period in which they are the most powerful is for the application of the universal law rules the enforcement of which it takes care only.