Turkey : Submission of an alternative report on lawyers in Turkey to the Universal Periodic Review
The OIAD, together with the Law Society of England and Wales and twelve other organizations, submitted an alternative report on the situation of lawyers and judges in Turkey as part of the third cycle of the Universal Periodic Review of the United Nations Human Rights Council.
Find the full report here.
Find the Summary of Stakeholders’ submissions on Turkey here.
The situation of lawyers in Turkey
Since the attempted coup in 2016, the situation of lawyers and judges in Turkey has worsened. About 599 lawyers were arrested and detained; 1546 lawyers were prosecuted and 311 were sentenced for a total of 1,967 years in prison.
Decree-laws adopted during the state of emergency seriously undermine the independence of the judiciary and lead to violations of the right to a fair trial. In particular, they have led to the closure of 34 lawyers’ associations and multiple interferences in the functioning of the bars.
Criminal law and anti-terrorism legislation are used to criminalize the legitimate professional activities of lawyers. Prosecutions of lawyers are often politically motivated, based on offences with a vague definition and in the absence of evidence. Lawyers are equated with their clients and their clients’ cases, in violation of the 1990 United Nations Basic Principles on the Role of the Bar.
Lawyers are subject to multiple obstacles in their professional practice such as: -difficulties in accessing files, including indictments;
- restrictions on access to customers;
- the violation of professional secrecy between lawyers and their clients.
Restrictions on lawyers’ professional practice constitute violations of the right to a fair trial and seriously restrict access to justice for all citizens of Turkey.
Find the complete information sheet here.
What is the UPR?
The Universal Periodic Review (UPR) was established by United Nations General Assembly resolution 60/251, adopted on 15 March 2006, which established the Human Rights Council.
The UPR is a review of the achievements of all UN Member States in the field of human rights. It is a state-led process, under the auspices of the Human Rights Council, which operates on a four-and-a-half year cycle. Each State has the opportunity to present the measures it has taken to improve the human rights situation on its territory and to fulfil its obligations in this respect.
The UPR process involves all relevant stakeholders, including non-governmental organizations (NGOs), national human rights institutions (NHRIs) and regional mechanisms.
Civil society actors, national human rights institutions and regional mechanisms may submit written information for the report containing a summary of information submitted by other stakeholders, which is considered during the review.
Recommendations from the 2014 cycle
Turkey’s last review took place on 27 January 2015. During the two previous cycles of the UPR, in 2010 and 2015, Turkey committed itself to strengthening the independence of the judiciary and accepted all the recommendations made in this regard.
The following recommendations made during the second cycle of the UPR are particularly relevant and have all been supported by Turkey in the context of the recommendations it considers already implemented or under implementation:
- Guarantee the independence and impartiality of the judiciary, including by refraining from undue interference by the executive branch (A/HRC/29/15 149.22, 149.23, 149.24 149.25, 149.26, 149.28 and 149.29 – supported)
- Consult civil society, the Office for Democratic Institutions and Human Rights of the Organization for Security and Cooperation in Europe and the Venice Commission on any judicial reform (A/HRC/29/15, 148.107 – supported)
The non-implementation of these and other recommendations has had a negative impact on human rights in the country.
Therefore, as part of the third round of the UPR, the international coalition of legal organizations made the following recommendations to Turkey:
- Introduce measures that will guarantee the independence of the judiciary and the prosecution services, in accordance with the UN Basic Principles on the Independence of the Judiciary and the UN Guidelines on the Role of Prosecutors;
- Amend legislative, constitutional, and other provisions that allow the Turkish government to appoint a large number of members of the HSK and the Constitutional Court to ensure the separation of powers;
- Introduce measures that will guarantee that all applications against dismissal decisions regarding members of the legal profession are considered in a fair and public hearing in a reasonable time by a competent, independent and impartial tribunal established by law as provided for in Article 14.1 of the ICCPR and Article 6.1 of the ECHR;
- Introduce measures that will ensure that lawyers can effectively perform their professional functions in accordance with the guarantees provided for in Article 14 of the ICCPR, Articles 5 and 6 of the ECHR, and the UN Basic Principles on the Role of Lawyers, specifically by:
- Repealing legislation and other provisions which hinder professional confidentiality, timely access to a lawyer of one’s choice, prompt and detailed notice of the nature and cause of charges, access to the case file, the examination of witnesses, adequate time and facilities to prepare a defence, and which extend detention periods without access to a lawyer;
- Amend the anti-terrorism legislation (including the Anti-Terrorism Law adopted on 25 July 2018), and provisions in the Criminal Code, including Articles 314 and 220, as recommended by the Council of Europe, the European Court of Human Rights, and the European Union, to align these with international standards and define offences sufficiently precisely so that arbitrary application of these laws is prevented;
- Introduce measures that will ensure that lawyers are not identified with their clients or clients’ causes and can perform their duties without intimidation, hindrance, harassment, or improper interference, in accordance with the UN Basic Principles on the Role of Lawyers;
- Immediately end the arbitrary and systematic arrest, detention, and prosecution of lawyers, judges, and prosecutors; drop the charges against those arbitrarily accused, and release those who are detained, unless credible evidence is presented in proceedings that comply with international fair trial standards;
- Introduce measures that will ensure the independent and prompt investigation and prosecution of all cases of torture and ill-treatment of lawyers, judges, and prosecutors committed by law enforcement officers, in accordance with applicable international standards;
- Implement decisions rendered by the European Court of Human Rights regarding members of the legal profession, including judges, as well as judgments rendered in cases where fair trial rights such as access to clients and professional confidentiality have been violated;
- Immediately comply with recommendations for the release of individuals made by the UN Working Group on Arbitrary Detention and other UN bodies;
- Immediately end the interference with bar associations and the arbitrary arrest and prosecution of their officials and members; and
- Ensure that lawyers are entitled to form and join independent professional associations, as protected by Principle 24 of the UN Basic Principles on the Role of Lawyers.