DAV in Turkey: No guarantee for fair proceedings

More than 350 lawyers are still in prison in Turkey. From the Turkish legal profession's point of view, the key problem is that fair proceedings are not guaranteed in Turkey. The German Bar Association has been supporting the Turkish Bar since 2017 in its fight for an independent and free legal profession. A DAV delegation travelled to Ankara in Turkey from 17 to 19 June 2019. In conclusion, international attention is of great help to the Turkish legal profession.

The DAV delegation led by DAV President Edith Kindermann had been invited to Ankara by the President of the Union of Turkish Bar Associations (UTBA) Prof. Dr. Metin Feyzioğlu to discuss the right to a fair trial according to Art. 6 of the European Convention on Human Rights (ECHR). Kindermann was accompanied by the two human rights experts Dr. Ulrich Karpenstein (member of the DAV Executive Board) and Stefan von Raumer (chairman of the DAV Human Rights Committee). Following a round table discussion, the DAV delegation spoke with the German Ambassador in Turkey Martin Erdmann and the Turkish lawyer Veysel Ok.

Judicial reform in Turkey: progress or eyewash?

At the beginning of the Roundtable meeting with the UTBA, Metin Feyzioğlu stressed that Turkey is in a difficult process, but that there is still reason for hope. He thus specifically addressed the judicial reforms for Turkey recently announced by Turkish President Tayyip Erdoğan, which UTBA in principle welcomed as a first step. Feyzioglu explained that it was important for the process to be accompanied constructively by the legal profession. The announcements must now also be implemented promptly.

A positive aspect of the 356 individual measures of the reform package is the fact that judges and prosecutors will no longer be able to be unexpectedly relocated to other parts of the country against their will. This would eliminate a sanction mechanism that had previously been significant.

Metin Feyzioğlu also explained, however, that there could be no independent judiciary in Turkey without a change in the current composition of the Turkish Council of Judges and Prosecutors. This "Council of Judges" is responsible for the appointment of Turkish judges. The influence of the Turkish president on the "Council of Judges" was massively widened during the 2017 constitutional reform. An independent judiciary is, however, "conditio sine qua non" for a functioning constitutional state, says Metin Feyzioğlu.

Edith Kindermann added that minimum standards under the rule of law also require an independent and free legal profession. Under no circumstances should lawyers be identified with the actions their clients are accused of. Lawyers must not be subject to criminal prosecution solely for the exercise of their professional duties. Since this is not certain in Turkey, both the UTBA and the DAV see an urgent need for action beyond the announced judicial reforms.

What constitutes a fair criminal trial?

Prof. Dr. Feridun Yenisey from Istanbul spoke at the meeting about Turkish criminal procedural law, which is largely based on the German Code of Criminal Procedure. In this context, Dr. Fahri Gökçen Taner addressed the highly problematic introduction of video statements of defendants in Turkish criminal proceedings.

The German contributions focused on the guarantee of a fair trial under the ECHR. Dr. Ulrich Karpenstein addressed central aspects of substantive law, in particular the comprehensive right to access to documents as a mandatory prerequisite for equality of arms and the protection of the lawyer's duty of confidentiality. Stefan von Raumer analysed the major problems with regard to exhaustion of legal remedies as a criterion for admissibility for actions before the European Court of Human Rights (ECtHR).

This led to a fruitful and open professional exchange, in the spirit of the friendship agreement concluded two years ago between UTBA and DAV.

Freedom of expression for lawyers - not granted in Turkey

At the invitation of the German Ambassador to Turkey, Martin Erdmann, the DAV delegation discussed the situation of the judiciary and the legal profession in Turkey at the German Embassy in Ankara on the following day. Afterwards, a meeting with the Turkish lawyer Veysel Ok took place, who is known in Turkey as a defence lawyer in cases of freedom of the press and freedom of expression and in Germany particularly well-known as the lawyer of Deniz Yücel. In addition, he is co-founder and co-director of the Media and Law Studies Association (MLSA), which is particularly committed to Turkish journalists and freedom of expression.

Veysel Ok himself is subject to ongoing criminal proceedings for insulting the judiciary, after he claimed in a newspaper interview in December 2015 that the Turkish judiciary was "uniformly coloured" and spoke "with one voice". However, a decision expected in the proceedings on June 20, 2019 was postponed again a few days earlier.

Conclusion of the DAV delegation trip: The Turkish legal profession still needs the support of independent lawyers' organisations outside Turkey. The principles of the rule of law and the essential role of the legal profession must be defended every day anew. In view of the intensive German-Turkish relations and many people with Turkish citizenship living in Germany, this is an important issue.

All those involved are now eagerly awaiting the forthcoming repetition of the local elections in Istanbul in June. Regardless of the outcome of this election, the professional exchange of lawyers remains an important instrument to strengthen the close relations between Turkey and Germany. Further joint projects are to follow.