Report: Legal Report on Indictment – Adana Bar Association
Lawyers for Lawyers has authored a report for the PEN Norway Turkey Indictment Project. The report is titled “Legal Report on Indictment: Adana Bar Association” and examines and reflects upon the flaws of the 2018 indictment issued against seven lawyers of the Adana Bar Association (Adana BA) in light of Turkish domestic legislation and international human rights laws and herewith shows serious concern for the guarantees of fairness and transparency of judicial proceedings in Turkey.
About the seven lawyers from the Adana BA
In November 2016, three lawyers that represented the Cumhuriyet Newspaper were unlawfully arrested. Consequently, ‘Justice Watch’, an initiative against the unlawful arrests, was launched in April 2017 in support of the imprisoned lawyers. In Adana, the Justice Watch was organised by the Adana BA, the Progressive Lawyers Association (ÇHD), and other legal groups. The action included a sit-in and a press release that was read out loud, to support and ask for the release of the imprisoned lawyers. The Governor of Adana introduced new measures consisting of an order that any kind of assembly including press releases in front of the Court house or close by were forbidden. However, it was unclear what activities were specifically forbidden. Nevertheless, ‘Justice Watch’ kept on publicly reading out press releases and protesting the unlawful arrest of the lawyers. The Adana police officers told the participants of the Justice Watch that they were committing a crime, as organising and reading a press release out loud was prohibited. The police informed the lawyers that they would initiate a criminal investigation against every individual who joined the Justice Watch. Seven lawyers, all registered with the Adana BA, well-known for their human rights work and members of the Progressive Lawyers Association, were indicted for acting contrarily to the Government’s measures on 5 April 2018.
Analysis and findings of the report
The report focusses on the indictment rather than the conviction and highlights several shortcomings of the quality of the indictment, recommends steps that can be taken to improve the quality, and urges the Ministry of Justice of the Republic of Turkey to abolish or review the wording of Article 301 of the Turkish Penal Code (TCK).
The report clearly points out that the indictment is poorly written and states: “The indictment is rather short. Nevertheless, it is difficult to comprehend. The indictment is poorly written and does not entirely fulfil the basic purpose of an indictment. Namely, to give the suspects an understanding of the accusation, the legal basis and the relevant evidence that supports it.”[i] The report sets out that the indictment does not provide the defense council with enough information and herewith makes the preparation for the defense difficult and not in accordance with Article 6 of the European Convention on Human Rights (ECHR). Furthermore, the indictment violates the freedom of expression outlined in Article 10 of the ECHR, the freedom of assembly (Article 11 ECHR), the United Nations (UN) Principles on the Role of Prosecutors, and is contrary to the UN Basic Principles on Role of Lawyers.
The analysis in the report is concluded by stating and recommending that “the flaws in the indictment of the suspects cause serious concern for the guarantees of fairness and transparency of judicial proceedings in Turkey, as protected by the European Convention on Human Rights. We therefore urge the Turkish Ministry of Justice to take our recommendations into consideration, by training public prosecutors about the conditions set out in Article 170 TCPC. Additionally, we note that the ultimate outcome of these cases (i.e., acquittals) should be communicated throughout the Turkey Ministry of Justice, so that prosecutors are made aware of these precedents and the low success rate of the indictments issued.”
About the PEN Norway Turkey Indictment Project
PEN Norway is studying journalist and civil society-related cases from the last six years
in Turkey by examining the foundation document of the case: the indictment. Since January 2020, with an international team of judges, lawyers and scholars PEN Norway has been examining indictments in prominent media and civil society cases, including Cumhuriyet, Büyükada and the Gezi Park trials. Each report focuses on one indictment. A group of legal and human rights experts from six different countries will have assessed 22 indictments’ compliance with local regulations and international standards by the end of 2021. The objective is to provide a tangible ground for discussions concerning the crisis of rule of law in Turkey and support dialogues that aim to improve the standards and put in place training in indictment-writing for Turkey’s prosecutors and judges.
[i] Pen Norway (2021) Legal Report on Indictment: Adana Bar Association, p. 6.
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