Examining the Treatment of Lawyers Deprived of their Liberty and Observing Trial Proceedings in Turkey: Report of an Independent International Fact-finding Mission

Between 6 and 10 November 2023, an international delegation representing 27 law societies, bar associations, human rights groups and legal groups (see annex 1 for the list of participating organisations) undertook a fact-finding mission to Turkey to interview eight lawyers who have been arrested and detained in circumstances that raise a range of human rights concerns. The delegation also observed two court hearings, the first concerning the criminal proceedings against twelve lawyers who are members of the Association of Lawyers for Freedom (ÖHD) and the second a review hearing for the pre-trial detention of Ms Gülhan Kaya, a prominent human rights lawyer.

The aim of the mission was to gather first-hand information on the circumstances of the arrest, imprisonment and trial of the lawyers, and their conditions and treatment in detention, and to assess these against Turkey’s obligations under international human rights law and customary law. The delegation also paid their respects at the grave of Ebru Timtik—a lawyer who died in detention in 2020 during a hunger strike in pursuit of the right to a fair trial.

The mission was undertaken due to concerns that lawyers in Turkey have faced interference when practicing their profession and have been identified with their clients and their client’s causes. This has resulted in many lawyers being subjected to intimidation, harassment, arbitrary arrest and detention, unfair trials, torture and other ill-treatment. This has taken place in the context of a crackdown on human rights by the government in the aftermath of a failed military coup attempt in July 2016. Following this event, the government declared a state of emergency, lasting two years, during which it suspended, detained, or fired nearly one-third of the judiciary, who were accused of affiliation with the Gülen movement alleged to have been behind the attempted coup.

The Government has been using overly broad anti-terror laws to restrict a range of fundamental human rights including the rights to freedom of expression, peaceful assembly and association. Lawyers and human rights defenders have found themselves targeted under these laws, including being charged with terrorism offences when taking on human rights cases and conducting their professional duties and advocacy.

The lawyers interviewed during the mission are part of a larger group of lawyers who have been prosecuted on various charges including “being a member of a terrorist organisation” and making “terrorist propaganda”. These lawyers are members of Ҫağdaş Hukukçular Derneği (ҪHD) – the Progressive Lawyers Association, whose legal services involve human rights cases, including the representation of clients who are critical of the government of Turkey. ҪHD was dissolved by governmental decree on 22 November 2016, however the association members remained active. In October 2019 it was reopened, but a case was initiated to close it once more. The ҪHD was finally re-established in 2022. Most have also worked at the Halkın Hukuk Bürosu (HHB) – the Peoples` Law Office. The lawyers have been prosecuted in mass trials commonly known as the ÇHD I and ÇHD II trials.

The ÇHD I trial started in 2013, when 22 lawyers, who were ÇHD members, were arrested and charged with offences under anti-terrorism legislation. In 2017, a second criminal case was filed, the ÇHD II trial, against 20 lawyers. Eight of the lawyers in the second trial, namely Oya Aslan, Naciye Demir, Günay Dağ, Şükriye Erden, Barkın Timtik, Selcuk Kozağaclı, Ebru Timtik, and Özgur Yılmaz, had also faced prosecution in the first trial. Both cases are based on the same evidence and charges, raising concerns that these trials violate the ne bis in idem principle – the right not to be tried repeatedly on the basis of the same offence, act, or facts.

On 29 April 2021, an individual application was lodged at the European Court of Human Rights on behalf of Selçuk Kozağaçlı, Özgür Yılmaz, Barkın Timtik, Engin Gökoğlu, Aycan Çiçek and Aytaç Ünsal, whom the international delegation interviewed, as well as the following lawyers – Yaprak Türkmen, Behiç Aşçı, and Ahmet Mandacı. The application details violations of their rights to freedom of expression, assembly and association, protected under Articles 10 and 11 of the European Convention on Human Rights (ECHR); their right to liberty and security, protected under Article 5 of the Convention; and Article 18 of the Convention, which prohibits the misuse of power. Similar applications to the European Court of Human Rights have been submitted on behalf of all lawyers mentioned in this report.

This report details the objectives and findings of the fact-finding mission. The first section provides information on the detained lawyers who were interviewed, providing details of their work, their membership in professional associations, and the circumstances of their arrest, detention and sentences. The second section sets out Turkey’s obligations under international law. The third section details the observations and findings of the delegation gained through the interviews conducted. The fourth section sets forth the findings from the two court hearings that were observed. The final section provides a series of recommendations drawing on the findings.

Read the full report here: https://bit.ly/3OS3bcu