Is it a political trial or a trial of criminals? This line is the main axis.
Recently, the new Minister of Justice Akın Gürlek made a statement and announced that “I gave instructions”: A new regulation on the sharing of information and letters during lawyer meetings is on the way.
Following this announcement, the Union of Turkish Bar Associations, particularly the bar associations, stated that they would file a lawsuit against the regulation and made statements emphasizing the sanctity of the right to defense.
First of all, Minister Gürlek stated that letters, notes and instructions were being taken out of the prison through lawyers in violation of the legislation. He stated that the processes that should be under the supervision of the prison administration have turned into a de facto “postal service”.
Is he right? Yes, this points to a concrete problem.
And how does this affect the right to defense?
Are instructions and letters an instrument of defense?
The current legal situation and the discussed “gap”
For detainees (not yet convicted), Article 154/1 of the Code of Criminal Procedure is clear: The suspect or accused may consult with his/her defense counsel at any time and in a place out of earshot of others, without the need for a power of attorney. His/her correspondence with his/her counsel cannot be subject to inspection.
Letters of regular prisoners are subject to prison inspection. However, any notes, letters and instructions given during the lawyer meeting can be taken out without supervision. The fact that the lawyer can stay in prison for long hours effectively extends this situation.
For convicts, Article 59 of the Execution Law contains stricter provisions. In cases of terrorism and organization crimes, if there is concrete evidence, interviews can be recorded, monitored, documents can be confiscated, time limits can be imposed and even a temporary ban on the lawyer can be imposed by a judge's decision.
This is exactly what the Ministry calls a “legislative gap”: For detainees, a completely unsupervised traffic of instructions through the lawyer seems possible. This situation creates controversy in terms of prison discipline and public security rather than the right to defense.
What is the right to defense and what is not?
The right to defense (Constitution Art. 36, ECHR Art. 6, Criminal Procedure Code Art. 149/3) includes
- Confidential interview with the client,
- Legal strategizing,
- Evidence review,
- Access to the file.
But the right to defense;
- Don't send operational instructions out of prison,
- Transmitting organizational orders,
- Witness influence,
- Using the lawyer as a safe courier
does not include the right to.
The right of defense is not absolute; it cannot be used to continue committing crimes.
In the context of terrorism and organized crime, the European Court of Human Rights has also found proportionate and judicially reviewable restrictions to be lawful. The principle of confidentiality is for legal assistance, not for the continuation of criminal activity.
Real-life debate
In organized crime and terrorism cases, there are numerous investigations and convictions on the transmission of instructions from prisons. Such cases are sometimes defended with the argument of “political cases”; however, judicial decisions are based on concrete criminal allegations.
Bar associations object to the possibility of arbitrary restrictions. This concern is important. Disproportionate interference with the right to defense is unacceptable. However, to say that no regulation can be made is to ignore possible abuses.
What kind of arrangement?
A possible and balanced arrangement should include the following principles:
Keeping meeting times within reasonable limits,
Physical notes and documents are subject to inspection, except in the context of legal defense only,
Establishing a limited and measured supervision mechanism in organized crime with a judge's decision,
All practices are open, auditable and under judicial guarantee.
Such an arrangement does not abrogate the right to defense; it aims to reduce the possibility of abuse. The presumption of innocence is preserved; the person continues to meet with his or her lawyer, but a clear line is drawn between the defense and the traffic of instructions.
Conclusion:
The right to defense is sacred, but not the right to commit crimes.
The rule of law must strike a balance between security and freedom.
The debate is not about the essence of the right to defense, but whether this right has been abused.
The point is not to generalize the issue with the rhetoric of “political trials” but to set clear boundaries within the framework of the law.