“The moment you expel lawyers from the courtroom, you effectively give up on the quest for justice”

 

The Istanbul Bar Association has condemned removal of the entire defense team of Ahmet Altan and Mehmet Altan at the third hearing of their trial where they face three aggravated life sentences on “coup” charges.

At the hearing held at the Istanbul 26th High Criminal Court on November 13, the presiding judge first ordered removal of lawyer Ergin Cinmen from the courtroom for speaking without permission after Cinmen attempted to speak to convey requests for expansion of the investigation before the judge gives the floor to the prosecutor to submit his final opinion. The judge then ordered expulsion of lawyer Figen Çalıkuşu when she attempted to submit the same requests. At that point, Çalıkuşu requested the judge be removed from the case. The remaining two lawyers of Altan brothers, Ferat Çağıl and Melike Polat were also expelled from the courtroom, leaving Altan brothers without lawyers for the rest of the session. The presiding judge based his decisions to expel the lawyers on Article 203 of the Turkish Criminal Procedure Code (CMK), which gives the mandate to maintain order at the courtroom to the presiding judge.

In a statement published on its website, the Istanbul Bar Association condemned the events of the hearing, without explicitly naming the case and the trial court. Maintaining that denial of the lawyers’ requests to speak has no basis in the law, the Istanbul Bar Association said their removal from the courtroom was a “clear violation of the right to defense.”

“We, as the Istanbul Bar Association, condemn this decision to expel lawyers for requesting to speak as neither lawful nor legal,” said the statement, adding that the Istanbul Bar Association would be monitoring the progress of the trial in terms of the right to fair trial and right to defense.

Full text of an English translation of the statement is as follows:

 

Expelling a lawyer from the courthouse is to expel justice

Yesterday, we witnessed once again the removal of lawyers from the courtroom. This time, what is more, it was caused by the “lawyer’s request to speak”. The [presiding] judge, who rejected the request without any legal basis, ordered the removal of the lawyer, treating his attempt to speak as a violation of the order in the courtroom. After the expulsion of another lawyer who made the same request, sessions of the hearing, which turned the trial into a process of expelling the lawyers one after another – despite the pending request of the lawyers for “removal of the judge from the case” as if such a request was never even made. All four lawyers were eventually expelled from the courtroom.

This “confrontational” stance is a typical manifestation of the judiciary branch’s ever deeper loss of respectability.

It is beyond comprehension that an “arm of the judiciary” disregards the fact that a quest for a version of defense, which does not speak, does not argue and is acquiescent to “their high esteem” would, first and foremost, result in a violation of “fair trial” rights.

A lawyer is present during a trial in order to discuss everything. The lawyer is there not in order to think like the judge or the prosecutor, but mostly because he/she thinks differently. Considering the lawyer’s request to speak as “disruption of the order at the courtroom” and depriving the defendant of counsel would instantly mean that the process underway is no longer a “trial.” A decision by the court to this effect is not only unlawful but also illegal. The court has no such authority. There is no legal provision establishing that lawyers’ request to speak should result in their expulsion from the courtroom. Article 203 of the CMK does not and cannot give the court such authority. This is a clear violation of the right to defense. The court is not an institution made up of the judge and the prosecutor. The term “judicial authorities,” cited in Article 6 of the Turkish Criminal Code (TCK), includes the lawyers as well. A lawyer is a founding element of the judiciary. The moment you expel lawyers from the courtroom, you effectively give up on the quest for justice.

Lawyer having thoughts that vary from those of the judge and differences of opinion resulting from this are inherent to the trial process. If all disagreements are treated as “disruption of order” at the hearing, not only would the right to defense be curtailed but also the very possibility of conducting a trial would be destroyed. This is because the incident in question stemmed not from an act of disrespect, disruptive behavior, inappropriate language, etc., on the part of the lawyers but solely from their “request to speak.” 

The State of Emergency regime that we live in and the significance these trials bear in this respect necessitate extra diligence in these trials. The status of international conventions as defined under the Article 90 of the Constitution should be especially taken into consideration. Even if the current circumstances allow exhaustion of domestic remedies in the absence of lawyers, the European Court of Human Rights cannot be expected to see it as a normal development. It is precisely for this reason that practices that could lead to a conclusion that “fair trial” rights have been violated should be avoided.

We, as the Istanbul Bar Association, condemn this decision to expel lawyers wanting to speak and find it neither legal nor lawful. We will be following the progress of the trial in terms of the right to defense and the right to fair trial.