From: DHKC <[EMAIL PROTECTED]> Date: Mon, 07 Jan 2002 15:50:54 +0200 To: [EMAIL PROTECTED] Subject: ATTITUDE OF THE BAR ASSOCIATION ATTITUDE OF THE BAR ASSOCIATION The administrative boards of the Ankara, Antalya, Istanbul and Izmir Bar Associations assessed the draft laws concerning the amendments of the �Turkish Penal Code� and the administrations of prison and detention houses. These two matters were submitted to the Turkish Grand National Assembly. Both matters have seen on their agenda since. With this in mind the boards have made an appeal for the hunger strike and death fasts to come to an immediate end. The Bar Associations have proposed a 2 point plan. Their proposal is in short an end to complete isolation. The proposal aims to achieve prisoners access with others, thus bringing the death fast to an end. The board therefore calls upon the ministry of justice, the government, the hunger strikers and the death fasters �We call upon you and propose the following �3 doors� �3 locks� By way of unlocking 3 locks and enabling the opening of 3 doors we believe that this will be the beginning of the end of the deaths. PRESS STATEMENT -Here is the joint minutes taken at the press meeting of the chairmen of the Bar Associations of Ankara, Antalya, Istanbul and Izmir. The meeting was held in Istanbul on the 07/11/2001 and was regarding the draft laws and proposals of the administrations of persons and detention houses Honoured press members The draft laws concerning the Turkish Penal Code and the administration of prisons and detention houses submitted to the Turkish Grand National Assembly is still awaiting to be passed. The boards of the Bar Associations of Ankara, Antalya, Istanbul and Izmir feel it their duty to inform the public of the proposed draft laws as the proposals have been put forward in a manner which is contrary to the rules of a state of law, which puts a blow in the democratic organization of a society thus leading to restlessness in civil society. 1) One of the important aspects, which separate a democratic state from a totalitarian state is the �professional respect of confidentiality of a lawyer�. In no aspect should a lawyer be forced into breaching the confidentiality of his/her client, the information the lawyer obtains from his/her client should not be forcibly obtained even by a judge�s ruling. This basic principle of law should be undisputed and not be breached in any way what so ever. �Confidentiality is not only the guarantee of a lawyer or a client but is the elementary right of every individual and citizen. In accordance with articles 89 and 144 of CMUK (The Turkish Code of Criminal Procedure) the right of confidentiality is an absolute right. Furthermore this right is also granted under article 36 of the defense law, thus securing confidentiality. However under articles 6 and 11/3 which were amended and ratified by the Ministry of Justice, Ministry of the Interior and the Health Ministers in an open triple protocol signed on the 17th January 2000 the right to confidentiality between a lawyer and a client was legally breached as the amended laws gave power to prison officials and gendarmes, the authority to confiscate and have search powers. The new articles further allowed legally unqualified persons to decide weather documents relating to clients and lawyers were for defense purposes. Following an appeal call from the union of the Turkish Bar Associations, lawyers and the chairmen of each Bar Association gathered in Ankara and decided unanimously that the triple protocol was in breach of the law. The triple protocol in fact in a way took away the right to a defense. The Ministry of Justice stated that we should await the draft laws submitted to the Turkish Grand National Assembly in respect of the legal professional laws and that should this be passed he would remove articles 6 and 11/3 of the triple protocol from the legal system. The law regarding defense changed on 02/05/2001 and article 58 now states that the premises of the lawyer be it his house or office may only be searched by obtaining a search warrant from the courts, under the supervision of a state prosecutor and in the company of a representative of the Bar Association can such searches be made. Article 58 also prohibits the body searching of lawyers unless there is a suspicious reason for doing so which may result in severe punishment. We would like to stress that this article only applies to lawyers and not clients for instance documents may still be confiscated and clients searched if there are suspicious circumstances such as direct acts of crimes or attempts to acts of crimes. Despite the amendments and changes of the defense law the triple protocol still exists and is practiced contrary to the legal system, the Turkish Code of the Criminal procedure (CMUK), the defense laws and implications of the ECHR. This triple protocol breaches fundamental laws. Every person who continues and practices the rules of the triple protocol is committing an offence and should therefore be punished accordingly. Article 6 of the draft law which is awaiting to be passed by the Turkish Grand National Assembly prepares the foundations for practicing of the triple protocol. According to article 6 of the draft laws defense and lawyers who attend punishment execution institutes have to declare in writing documents and files brought in. Declared documents will not be searched. However in principle documents such as witness statement which have not be amended or checked should not be made to be declared. Further documents specifically relating to clients should not be declared as all declared documents listed in writing are passed on to the prison administration. This is a breach of article 36 relating to lawyer client confidentiality and should strongly be opposed and appealed. It is seen as totally against the rights to a fair defense. The draft laws enable lawyers documents and files to be searched in situations where judges and public prosecutors believe documents may be filed late or in situations where objections are being made. In such situations prosecutors will gain access to defense files. This is therefore seen as a threat to defense rights. The draft laws are also in breach of articles 89 and 144 of the Turkish Code of Criminal procedures (CMUK) and articles 36 and 58 of the defense laws (solicitors code of conduct). Thus preparing a legal undercoat for the application of the triple protocol. It is not possible to accept the attempted legalization of the draft laws which are in breach of law, civil society and especially the undivisible democratic organizing of a society. 2. Article 5 of the draft laws permits forced medical intervention of prisoners on hunger strike or death fast. The law permits the prison administration to forcibly impose this upon whom are conscious, against their free will. Where they feel that there exists a situation of danger to health or life, the prison administration further can impose this without a doctors opinion or decision. However the universal understanding of forced medical intervention only applies when prisoners are unconscious and where there is a decision obtained from a medical professional. Where a person is conscious intervention is not permitted. Only with a doctor�s decision can intervention be imposed and it should be noted that doctors should also not be put under pressure to make such decisions. In the general justifications of the proposal of article 5 of the draft laws, examples given in support of the law have not been quoted correctly. They have been misinterpreted and tampered with. For example the French laws do not state the necessity of intervention, in the case that the hunger strike passed 7 days, but foresees that the prison director informs the general director of the prisons about the situation. Intervention is only possible if a prisoner on hungerstrike is unconscious and only with the decision of the doctor. This regulation in the French law is fitting in article 36 of the Medical Deontology Rules. The human rights commission has stated that forced intervention is not in contrary to article 3 of the ECHR (which is the prevention of torture, degrading and ill-treatment). However this can not be justified, as the act of intervention is against a person�s will. Thus being contrary to article 3. The council of Europe�s Ministerial Committee have stated in the proposed recommendation decision (98/7) that article 5 has no angle to justify or carry any legality. 3. In article 2, with the obligation 307/b which was added to article 307 of the Turkish Criminal Law, the bill opens the possibility improvement and education programes for the prisoners, and oblige them to participate in communial activities. It is a violation of the individual right to force a prisoner out of his wish and will to participate in any improval or education program. The same time, to make the communial activities an obligation, aims to create a market of cheep workers and by that to turn the prisons to production units of employers, industrials. 4. As a result of the hungerstrikes which turned out into death fast and started with the discussions on the F-type prisons, tens of people have died, tens remained handicapped and tens of people are at the threshold to death. The society doesn't want to accept death as solution. And we, the boards of the Bar Associations of Ankara, Antalya, Istanbul and Izmir call upon the Minister of Justice, to bring to speech the demand of the public and the democratic cercles, and call upon those on hungerstrike and death fast to end their hungerstrike and death fast. We propose: the Ministry of Justice should guarantee and declare to guarantee without any architectoral and security change in the F-type prisons, that the doors of three rooms side by side, each for three persons, are opened and 9 people can be together inside that unit, and that they can benefit from the available common facilities at certain hours. Those on hungerstrike and death fast should recognize and accept this application as end of isolation, end their hungerstrike and death fast and announce that they'll end it. The opening of the locks of three doors will save tens of lifes. To keep open the locks of three doors will push ahead the death from the agenda. The Minister of Justice, the government have shown their determination. The prisoners showed their determination. We, the public, the democratic cercles of the society, call upon the Minstry of Justice, the government, those on hungerstrike and death fast and propose: three doors, three locks, the opening of three locks of three doors This should be the beginning of the end of deaths. Chairman of the Chairman of the Bar Association of Ankara Bar Association of Antalya Sadik ERDOGAN, lawyer G�rkut ACAR, lawyer Chairman of the Chairman of the Bar Association of Istanbul Bar Association of Izmir Y�cel SAYMAN, lawyer Noyan �ZKAN, lawyer _________________________________________________ KOMINFORM P.O. Box 66 00841 Helsinki Phone +358-40-7177941 Fax +358-9-7591081 http://www.kominf.pp.fi General class struggle news: [EMAIL PROTECTED] subscribe mails to: [EMAIL PROTECTED] Geopolitical news: [EMAIL PROTECTED] subscribe: [EMAIL PROTECTED] __________________________________________________
