The Association of Lawyers for Freedom (ÖHD) and Diyarbakir Bar Association published a comprehensive report on the mass detentions in Turkey on 25 April. In the course of the "terror trial" led by the Diyarbakir Chief Public Prosecutor's Office, 191 people were detained across the country in the run-up to the elections.

As a result of the detention of 191 people, including 25 lawyers, artists and journalists, legal processes were followed by the Diyarbakır Bar Association and the Diyarbakır Branch of the ÖHD. They identified the rights violations experienced during the investigation process, which resulted in the arrest of 4 lawyers and the release of 16 lawyers with judicial control, following the deposition and interrogation procedures.

The report documents cases where the investigative authorities criminalized lawyers for the practice of their profession and linked them, without proof, to the crimes against their clients. An evaluation will be made of the existing problems that allow rights defenders to intervene through judicial activities, on the basis of the independence of the judiciary, the right to a fair trial, and the right to freedom and security.

In the report, it is concluded that the targeting of the defense lawyers by the prosecution investigations and prosecutions, which are devoid of legal basis and threatening, undermines an important mechanism that guarantees the right to a fair trial in Turkey. The aim is to report the violations of rights by making the necessary determinations regarding the unfair trial processes, and to make the required national and international legal applications and criminal complaints as a result of the reports created.

Highlights from the report are as follows:

VIOLATIONS OF RIGHTS DETECTED DURING THE INVESTIGATION PROCESS

Fundamental rights and freedoms are interfered with in a very arbitrary way, and there is a process in which rights defenders, especially lawyers, professional organizations and non-governmental organizations are targeted by the judiciary and exposed to criminal threats.

It is observed that the interventions against lawyers, who are among the groups most affected by the repression regime restricting the civil space, have become extraordinarily harsh and widespread. This oppression regime makes lawyers a target in order to hinder the pursuit of rights, to scare and intimidate the society.

Professional activities of lawyers to defend and develop human rights are subject to accusations within the scope of the investigation. Lawyers working in rights-based non-governmental organizations are tried on the basis of their human rights advocacy activities.

JUDICIAL THREAT PRACTICE

The judiciary, which protects the perpetrators responsible for violations of human rights and freedoms with the armor of impunity and covers up the truth about the violations, tries to silence the rights defenders who speak out against rights violations, speak the truth and demand accountability with baseless claims and discourage the struggle for rights and freedom. A pattern of judicial proceedings targeting rights defenders and an unprecedented arbitrary and unlawful process are being run in the functioning of the criminal law system. The legal data examined shows that decisions such as arrest, detention, detention without any concrete evidence, investigations and prosecutions, and sentencing/conviction decisions are made against rights defenders only because of their lawful and legitimate advocacy activities.

Lawyers, including Tahir Elçi, the former President of the Diyarbakır Bar Association, were similarly detained on the basis of the statements of a confessor, with their professional activities as a subject of accusation. Lawyers' offices were illegally searched, and their belongings confiscated. The European Court of Human Rights, in its ELÇİ and Others v. Turkey judgment, affirmed that Turkey committed gross human rights violations, and clearly emphasized the following:

“As a profession, lawyers have a central role in administering justice and maintaining the rule of law. The freedom of lawyers to practice their profession without undue hindrance is one of the essential components of a democratic society and one of the essential prerequisites for the effective implementation of the provisions of the European Convention on Human Rights, particularly the guarantees for the rights to a fair trial and personal security. Therefore, the pressure and harassment of members of the legal profession are blows to the heart of the system established by the Convention. Therefore, allegations of any form of such coercion, particularly the mass detention or detention of lawyers and their offices searched, will be subject to particular scrutiny by the court.” (Application No.: 23145/93 and 25091/94)

The unpredictable practice of judicial authorities makes it almost impossible for rights defenders to know for which actions they may be held criminally responsible and what punishment they may face, and constitutes a serious violation of legal guarantees that prohibit interpreting the scope of existing crimes to include actions that were not previously considered crimes.

INSTRUMENTALIZATION OF THE JUDICIARY FOR POLITICAL PURPOSES

It is seen that the judiciary, which has surrendered to political manipulation more than ever in recent years in Turkey, has become an extension of the political power that wants to regress the human rights struggle due to its dependent and open structure and has turned into a tool of oppression. As stated in the EU progress evaluation report of 2021, there has been a regression in democracy, rule of law, independence of the judiciary, democracy and fundamental rights in recent years, and the judiciary has lost its independence bases due to legal and de facto interventions by the executive and legislature and is completely open to political influences.

ANTI-TERRORIST LAW AND JURISDICTION PRACTICE

Although many revisions have been made in the TMK (Anti-Terrorist Law) within the scope of the harmonization process with the European Union, a judicial practice is applied in which rights defenders are put under pressure due to the fact that the problems arising from the law are not resolved and the practitioners are given a wide margin of appreciation.

CONCLUSION AND RECOMMENDATIONS

The special protection and support of lawyers, who are defenders of rights, is guaranteed by international conventions and documents. Lawyers are seen as indispensable elements of a democratic process that respects human rights all over the world. They have a warning and supervisory function against violations of rights arising from both laws and practices.

Lawyers are criminalized, targeted, faced with administrative or judicial pressure, detained, arrested or sentenced for criticizing the decisions and actions of public authorities and related third parties/institutions, in violation of national and international law, while carrying out their legitimate activities that do not contain any criminal elements. Exposing them to judicial threats is unacceptable.

Rights defenders who continue to be detained unlawfully due to their legitimate and legal advocacy activities should be released.

The judicial practice of being subject to investigation or prosecution, in part or in whole, for the clients they represent or for whom they act as attorneys, or for the activities they perform within the scope of their duties as a lawyer, should be abandoned.

The practice of making arbitrary and unlawful accusations against lawyers, especially in mass lawsuits, in an uncertain, ambiguous and unpredictable manner, such as membership of an illegal organization, should be ended.