Advokatforeningens menneskerettighetsutvalg har skrevet rapport om rettssaken mot Figen Yuksekdag

4. juli 2017 ble Figen Yuksekdag, en av lederne for det tyrkiske opposisjonspartiet HDP, stilt for retten under anklage om oppfordring til voldsutøvelser og spredning av propaganda for en terrororganisasjon. Maria Hessen Jabobsen fra Advokatforeningens menneskerettighetsutvalg deltok som observatør under rettssaken. Hun har skrevet en rapport om sine observasjoner under rettssaken.

Her kan du lese hele rapporten.

«Based on our experience from the attempted observation on July 4th and the available reports concerning the situation in Turkey, the Human Rights Committee of the Norwegian Bar Association has the following observations and concerns: Several highly regarded international human rights organs have expressed grave concerns over the last year on the Turkish government’s seemingly arbitrary dismissals, detentions and convictions of politicians, journalists, judges, lawyers and prosecutors. The Human Rights Committee of the Norwegian Bar Association shares these concerns, and wishes to express deep concern on being denied observation of a public trial contrary to well established international human rights standards.

Summed up, the Norwegian Bar Association’s main concerns in Mrs. Yuksekdag’s case are as follows:

• The charges and conviction seems based on law not meeting the required standards of lex certa. The ECHR (Grand chamber) has described the requirement of foreseeability in Vasiliskauskas v. Lithuania 35343/05 2015: “Offences and the relevant penalties must be clearly defined by law (…) This requirement is satisfied where the individual is able to determine from the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation of it, what acts and omissions will make him criminally liable.”

• The statements of Mrs. Yuksekdag that make up evidence in the cases against her seems to fall well within the scope of freedom of expression (ECHR article 10, ICCPR article 19 and Turkish Constitution article 26). The detention, conviction and criminal charges against her for these statements constitutes a violation of her freedom of expression as they are not – to our knowledge – proved to be necessary to protect the rights of others, not necessary in a democratic society (ECHR), or necessary for the protection of national security. Neither are the severe violations of Mrs. Yuksekdag´s basic rights and freedoms – to our knowledge – proven to be strictly required by the exigencies of the situation (ICCPR article 4 and ECHR article 15). The same applies regarding the freedom of association (ECHR article 11, ICCPR articles 21 and 22 and Turkish Constitution article 33).

• The actions against Mrs. Yuksekdag and her fellow party members must be seen in context of the right not to be accused on account of one’s thought or opinions (Turkish Constitution article 25). This right is non-derogable under article 15 of the Turkish Constitution. Observations and concerns

• The judiciary does not seem to meet the criteria for independence (ECHR article 6 § 1 and ICCPR article 14 no.1), and there are serious concerns on the separation of powers and the rule of law in Turkey.

The ECHR has regard to the following in determining whether a body can be considered independent:

1. The manner of appointment of its members
2. The duration of their term of office
3. The existence of guarantees against outside pressure
4. Whether the body presents an appearance of independence

Neither criteria seem to be met. See sections above on mass dismissals, the constitutional reform’s shift of power over the judiciary and the mentioned UN reports. There can be little doubt that there are reasons to fear the objectiveness in the judiciary’s examination of decrees of men to whom the judges owe their positions. See also the briefing paper by ICJ 2016.25 Given that the final order to exclude observers from the trial – as we were told – came from the Ministry of Justice, this action serves as further evidence of the judiciary’s lack of independence. In addition to sections above, see the ECHR judgement (Grand Chamber) Incal v. Turkey 22678/93 and the recent dismissal of Mercat v. Turkey.

• The abovementioned will necessarily have impact on the overall fairness of the trial (ECHR article 6 § 1, ICCPR article 14 no.1 and Turkish Constitution article 36). • We do not possess sufficient information to draw conclusions on the detention/deprivation of liberty or the conditions of detention itself, but as the charges seem to be based on domestic legislation that does not meet the well established standards and violations of the freedom of expression seems to be unwarranted, the asserted grounds for deprivation are likely to be incompatible with Turkey´s international human rights undertakings.

• Provided that the information on supervision of lawyer-client conversations is a fact, this raises deep concerns regarding the overall fairness of the proceedings. Confidentiality between lawyer and the client is fundamental to the effective defence of persons accused. (ECHR article 6 § 3 (c) “practical and effective” legal assistance and ICCPR article 14 no. 3 b and d.)

• Denying access to the venue of the scheduled press conference seemed unnecessary, as the attendees (comprised of journalists, politicians, observers and lawyers) were a peaceful group. The number of heavily armed police forces in riot gear as such seemed disproportionate. The denial of access to the venue seems an unnecessary interference with the freedom of assembly and of expression.

• Denying attendance of international observers causes deep concern. Public criminal proceedings are one of the fundamental guarantees of a fair trial, as it amongst others secures confidence in the courts and the judiciary.

ECHR article 6 § 1 states that “In the determination of (…) any criminal charge against him, everyone is entitled to a (…) public hearing (…)”. Exclusion of attendance by press or public may be permitted under article 6 in “the interest of morals, public order or national security” or “to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice”. ICCPR article 14 likewise. Neither exceptions can be relied on in Mrs. Yuksekdag’s hearing. The reasons given for denial of access were lack of necessary applications with state bodies, which is both unnecessary and far from the scope of allowed exceptions.

The “Trial observation manual for criminal proceedings” by the ICJ expressly recommends that observers notify state bodies of their intended observation.26 This was regrettably not the case, but is no legal requirement. Indeed, both the court and prosecutor’s office had to my knowledge been notified of my name, position and organizational affiliation several days prior to the hearing, and the judges had accepted the attendance. The UN General Assembly has expressly recognised the right of trial observers “[t]o attend public hearings, proceedings and trials so as to form an opinion on their compliance with national law and applicable international obligations and commitments”.

The hearing had numerous attendees, and to exclude only the international observers on the said grounds renders the decision of denial arbitrary and does little to promote confidence in the judiciary’s independence.»