A Prison Regulation That Disregards the Right of Defence

Assoc. Prof. Dr. Murat Volkan Dülger^* & Attorney-at-Law Ruhsar Köse^*

The Regulation concerning the new arrangements to be introduced in respect of the Law on the Execution of Sentences and Security Measures was quietly published in the Official Gazette on 29 March 2020 and entered into force. When we examine the provisions contained in the Regulation, we see that a provision which is incompatible with the principle of the rule of law, which restricts the lawyer’s rights of defence in their entirety and which, moreover, was previously found unconstitutional and annulled by the Constitutional Court – a provision we shall address in detail below – has been brought into the new regulation.

Under paragraph 2 of Article 72 of the Regulation, entitled “Right to meet with a lawyer and a notary”,

sub-paragraph (e): “In the relations with their lawyers of convicted persons who have been sentenced for the offences defined in Article 220 of Law No. 5237 and in Chapters Four, Five, Six and Seven of Part Four of Book Two of the same Law, or for offences falling within the scope of the Anti-Terror Law No. 3713 of 12.04.1991, the documents and files which the lawyer declares to relate to the defence may be physically searched. The provisions of this sub-paragraph shall also apply to the records which reflect the conversations held during the meeting between lawyers and the convicted person in the institution and which are kept by hand by the lawyer in person”.

During the state of emergency (OHAL), too, a similar provision was introduced by Article 6¹ of Law No. 7070 on the Making of Certain Arrangements within the Scope of the State of Emergency, in a controversial manner; however, an action for annulment was brought before the Constitutional Court by the Republican People’s Party, and the restriction on the meetings of convicted persons who have been convicted of offences falling within the scope of the Anti-Terror Law and are being investigated for another offence, and who meet with their lawyer in the capacity of suspect or accused, was found unconstitutional and annulled. Accordingly, the Court annulled the part of the article reading “may be recorded in sound or vision by technical device; an officer may be present at the meeting in order to monitor the meetings between the convicted person and the lawyer; the documents or copies of documents and files given by the convicted person to his or her lawyer or by the lawyer to the convicted person, and the records they keep of the conversations between them, may be seized”.

This provision was introduced during the state of emergency and annulled after its unconstitutionality had been accepted by the Constitutional Court as well; it is wholly contrary to the lawyer’s rights of defence guaranteed by the Constitution and to the universal norms laid down in Art. 6 and Art. 8 of the European Convention on Human Rights (ECHR). That it has been put into force in the difficult period we are going through – and by a Regulation at that, in furtive haste – is a heavy blow to our fundamental rights and freedoms.

It must be stated that, in a state governed by the rule of law, interference with the rights and freedoms of the individual

is the exception, and any exceptions that do exist must without fail be laid down in conformity with the general conditions set out in Article 13 of the 1982 Constitution and by provisions of statute. According to Article 13 of the 1982 Constitution, “Fundamental rights and freedoms may be restricted only by law and only on the grounds specified in the relevant articles of the Constitution, without infringing upon their essence. These restrictions shall not be contrary to the letter and spirit of the Constitution, the requirements of the democratic order of society and of the secular Republic, and the principle of proportionality”. As will be seen, in order for a restriction to be imposed on a right or freedom, the article first of all requires the existence of a specific ground for restriction in the provision of the Constitution governing that right or freedom. In the absence of such a ground, it is not possible to restrict the fundamental right or freedom by law either.

The Regulation is not only unconstitutional; it is also plainly contrary to the Law on the Execution of Sentences. Paragraph 4 of Article 59 of the Law states: “During the meeting, the documents or copies of documents and files given by the convicted person to his or her lawyer or by the lawyer to the convicted person, and the records which they themselves keep of the conversation between them, may not be examined; the convicted person’s meeting with his or her lawyer may not be listened to or recorded.” Paragraph 5 of the same article, in turn, provides that, as an exception to this and in respect of the catalogue offences, this may be done where information, findings or documents are obtained indicating that a terrorist organisation is being directed, that orders and instructions are being given or that coded messages are being transmitted, and upon the request of the Chief Public Prosecutor’s Office and by decision of the execution judge. The Regulation, however, without requiring these conditions at all and by also including the documents and files which the lawyer declares to relate to the defence, provides that the search may be carried out. As it stands, it is unacceptable for a restriction that is not contained in the Law, and a rule that is contrary to the Law, to be extended by a Regulation; moreover, the provision in question also amounts in its entirety to a violation of the rights of the defence guaranteed by Art. 36 of the Constitution.

According to Article 36 of the 1982 Constitution, “Everyone has the right, by availing himself or herself of legitimate means and procedures, to make claims and to defend himself or herself as plaintiff or defendant before the judicial authorities, and the right to a fair trial. No court may refuse to hear a case that falls within its jurisdiction and competence”. According to Article 13, fundamental rights and freedoms may be restricted only by law and only on the grounds specified in the relevant articles of the Constitution, without infringing upon their essence. Thus, for the rights of the defence, which are a fundamental right and freedom, to be restricted, the existence of a law is not sufficient; the specific grounds set out in the relevant articles of the Constitution, on which the law is based, are also required. At this point we wish to state that, because the rights of the defence are restricted by the Regulation, it also violates Articles 5 and 6 and Article 8 of the European Convention on Human Rights and the right to a fair trial.

In accordance with Art. 6 ECHR and the judgments delivered in this regard by the European Court of Human Rights (ECtHR), a person against whom a charge has been brought may defend himself or herself in person and also has the right to defend himself or herself with the assistance of defence counsel. From the first stage of the investigation at the police onwards, the person charged has the right to communicate with defence counsel “out of the hearing of third persons”². This right, which applies from the first contact with the police,³ also continues throughout the entire proceedings. Otherwise the public function of the defence cannot be performed. Indeed, the fact that lawyers are subject to a strict duty of confidentiality under Art. 36 of the Attorneyship Law also serves this purpose. Indeed, the ECtHR has held that even a restriction requiring a detained person’s meetings with defence counsel to take place before the investigating judge, on suspicion of tampering with evidence, may give rise to a violation⁴. In connection with the right to a fair trial, the Court has also emphasised the sensitivity of lawyer–client confidentiality by its assessment⁵ that “… it must be borne in mind that, where a lawyer is involved, an encroachment on professional secrecy may have repercussions on the proper administration of justice and hence on the rights guaranteed by the right to a fair trial under Article 6 of the Convention.”

Indeed, in cases concerning the monitoring of communications between lawyer and client, the ECtHR has found Art. 8 applicable and has stated that professional or business conversations must also benefit from the protection of the right to respect for correspondence. Likewise, the Constitutional Court has stated that the concept of communication also covers lawyers’ correspondence with their clients and that the seizure of lawyers’ correspondence with their clients must therefore be examined within the framework of a violation of the freedom of communication⁶. We must stress, however, that interference with and restriction of this right are possible only in accordance with specific criteria and on a foreseeable statutory basis.

The Constitutional Court has in any event expressed this point clearly: “Giving effect to the freedom to seek one’s rights provided for in Article 36 of the Constitution requires that every facility be afforded to the professional work of lawyers and to the service of the defence. One of the ways of achieving this is to ensure that the accused meets with the lawyer in an environment free from the fear of being overheard by others”⁷.

The precondition for pre-trial detainees and convicted persons being able to exercise their right to legal assistance in prison is that they are able to meet with a lawyer of their own choosing. For the essence of the rights of the defence to be protected, it is fundamental that the lawyer–client meeting be inviolable and confidential. Otherwise an arbitrary area of interference of indeterminate limits emerges which removes this confidentiality, and this will be in absolute contradiction with the universal principles and foundations of law and with the international conventions to which we are a party.

In our opinion, in view of the sanctity of the rights of the defence and of the requirement to treat the person charged fairly, this provision – which allows the physical search of the meetings of the detainee, who stands charged and in particular faces the danger of being punished, and of defence counsel, of their information and documents relating to the defence, and of the records and files which, by reason of their content, must remain confidential and may be regarded as covered by lawyer–client confidentiality – must be annulled as soon as possible.

Indeed, the Istanbul Bar Association has applied to the administrative courts for the annulment of this provision of the Regulation in question, which is wholly unlawful. Yet such conduct aimed at restricting the defence is neither the first of its kind nor will it be the last. It must never be forgotten, however, that a confidential meeting with a lawyer is something anyone may one day need.