THE PREVENTION OF THE RIGHT TO CONSULT WITH A LAWYER IS A VIOLATION OF THE RIGHT TO A FAIR TRIAL
1. As a requirement of the right to a fair trial, the lawyer may meet with the suspect, except in exceptional cases, within the scope of the right to benefit from the assistance of a lawyer. Although this is the general rule, in practices of recent times, the investigative authorities have been rendering decisions contrary to the mandatory provision of the Law in the detentions made for the crimes specified in this paragraph, especially terrorist crimes, by citing the second paragraph of Article 154 of the Criminal Procedure Code (CCP) numbered 5271.
2. In this context, it was reported in the press that the suspects were not allowed to meet with their lawyers for 5 days in some places. At this point, many lawyers have also shared posts on their social media accounts within this framework. It is seen that the practice is clearly contrary to Article 36 of the Constitution and Article 154 of the CCP.
3. Namely, the right to benefit from the assistance of a lawyer within the scope of the guarantees given by the right to a fair trial, which is guaranteed in Article 36 of the Constitution, is regulated in Article 154 of the CCP. In accordance with the regulation in the article, the suspect can talk to the lawyer at any time and in an environment where others cannot hear what is being said, without seeking a power of attorney. However, pursuant to the regulation in the second paragraph of the State of Emergency Decree Law No. 676, the right of the suspect in custody to meet with his lawyer may be restricted for 24 hours by a judge’s decision, upon the request of the public prosecutor, in terms of crimes within the scope of the Anti-Terror Law and other specified exceptional crimes; statements cannot be taken during this time.
4. During the state of emergency, with the 3rd article of the State of Emergency Decree Law No. 668, it was regulated that the suspect in custody could be restricted from meeting with his lawyer for 5 days with the decision of the public prosecutor. Later, with the amendment made in Article 154/2 of the CCP with the 3rd article of the Decree Law No. 676 and the 3rd article of the Law No. 7070 regarding the adoption of the same provision of the Decree-Law, the restriction period was reduced from 5 days to 24 hours. In addition, there is no regulation regarding the extension of this 24-hour period.
5. However, the provision in Article 3 of the State of Emergency Decree Law No. 668, which is clearly contrary to the right to a fair trial and is considered to be limited to the state of emergency, continues to be applied in practice despite the end of the state of emergency, and the 24-hour restriction period is extended up to 5 days.
6. Judicial authorities do not have the discretion or authority to restrict the fundamental rights in a matter that the law does not authorize. The extension of this 24-hour period, determined by the Law on the restriction of the right to meet with a lawyer, would be contrary to the principle of legality and a clear violation of the right to a fair trial.
7. The ECHR, in the case of Salduz stated that the suspects, as a rule, have the right to meet with their lawyer at the police station and to benefit from the help of a lawyer, and this right can be restricted only if there are compelling reasons. (Salduz v. Turkey, ECHR Grand Chamber, Application No: 36391/02, 27 November 2008) What the compulsory reasons might be and the procedure for restricting this right were explained in the case of İbrahim and Others (İbrahim and Others v. the United Kingdom, ECHR Grand Chamber, Application No: 50541/08, 50571/08, 50573/08 and 40351/09, 13 September 2016).
8. Concerning what should be understood as compelling reasons, the Court made the following determination: If a government can convincingly demonstrate that there is an urgent need to be met in order to prevent serious adverse consequences to life, liberty or physical integrity in a case, compelling reasons for restricting the right to legal counsel may be accepted. (§ 259)
9. According to the ECHR, the right to meet with a lawyer cannot be restricted even in case of the risk of leaking information by the suspects at the police station. The Court’s judgments in Salduz v. Turkey and İbrahim and Others v. the United Kingdom were therefore considered a turning point in the exercise of the right to use a lawyer by suspects in the police station across Europe.
10. Recently, terrorism investigations in Turkey have been used to silence the opposition and to terrorize the conservatives who are not supporters of the government, rather than the fight against terrorism. In addition to all unlawfulness in these so-called terrorism investigations, the most fundamental right of people who are forcibly included in these investigations, is taken away as well as their right to benefit from the assistance of a lawyer.
11. The ECHR has stated that the right to a fair trial cannot be compromised even at a minimum level, even in investigations into terrorist crimes. In this context, the ECHR emphasized in the case of İbrahim and Others that it is not possible to compromise on a fair trial due to the suspicion that individuals have participated in terrorism, and that even in the most difficult times, the states must respect their commitment to human rights and the rule of law and the minimum guarantees in Article 6 of the Convention.
12. In Turkey, in terms of the legal 24-hour restriction in Article 154 of the CCP, it is seen that this restriction is applied for reasons that are far from the purpose of the ECHR and the legislator, such as “the safety of the investigation”. Beyond that, the legislator envisaged only a 24-hour restriction period and did not include a regulation extend this period. On the other hand, it is seen that this period has been extended to 5 days in terrorism investigations in practice. Although there are no concrete threats to life, freedom or physical integrity arising from the suspect, it is seen that the suspects are not allowed to meet with their lawyers arbitrarily, purely for the purpose of pressure and intimidation.
13. It is clear that the suspects were forced to confess under pressure, even though no statement was taken, and that this period was used to complete the illegal interviews held under the name of the preliminary interview. The systematic application of this practice by law enforcement and investigative authorities, who have full control over the suspect and use the exceptional restriction set by the Law for unlawful reasons in order to obtain a confession from the suspect, and unlawfully extend the 24-hour period to 5 days, is the best example of violations of rights in investigations.
14. Consequently, even when fighting against terrorist crimes, States must respect the fundamental guarantees of the right to a fair trial, including the right to meet with and benefit from a lawyer, contained in the European Convention on Human Rights. Terrorizing the law and destroying fundamental rights while fighting terrorism is unacceptable. Therefore, the restriction of the right to meet with the lawyer despite the absence of compelling reasons such as concrete danger to life, freedom or physical integrity and the application of a 5-day period contrary to the 24-hour period stipulated by the law is a violation of the suspect’s right to a fair trial.
15. In addition, CCP clearly regulates the maximum period of 24 hours for the restriction of the right to meet with the lawyer and the ECHR has determined the condition of having compelling reasons for the restriction of the right to meet with the lawyer. Despite these conditions, arbitrary restriction of the right to meet with a lawyer by the judicial authorities is an abuse of duty. This situation clearly requires criminal, legal and disciplinary responsibility.