Istanbul Bar Association reacts to Minister Gürlek's 'statement exceeding authority': Aimed at restricting the right to defense

The Bar Association reacted to Minister Gürlek's statement regarding a "legislative gap" in detainees' meetings with their lawyers, stating that the right to defense cannot be restricted. Emphasizing that current legal regulations are clear, the Bar stated that the problem does not stem from legislation, but from practices in prisons and overcrowding. The written statement from the Istanbul Bar Association regarding the matter is as follows:

"Last night, a statement exceeding authority was made by the Minister of Justice, aimed at restricting the right to defense. In the statement, it was claimed that there is a 'legislative gap' in detainees' meetings with their lawyers and the transmission of notes; it was stated that legal regulations would be made on this matter. However, there is no such legal gap. Pursuant to Article 154 of the Criminal Procedure Code, a suspect or defendant may meet with their defense counsel at any time, without the need for a power of attorney, in an environment where others cannot hear what is being said. Correspondence between these individuals and their defense counsel cannot be subject to inspection.

"THE PROBLEM IS NOT IN THE LEGISLATION, BUT IN THE PRACTICE"

The right to a fair trial and the presumption of innocence, guaranteed under Article 36 of the Constitution, necessitate the confidentiality and continuity of the relationship between the detainee and their defense counsel. The right to meet with a lawyer is not a privilege granted to the lawyer; it is an essential element of the citizen's right to defense. The right to defense is valid at all times, in all places, and for everyone. Furthermore, it must be stated that in accordance with Article 26 of the Constitution and Article 10 of the ECHR, everyone has the right and freedom to express their thoughts, and to receive and impart information. It is indisputable that detainees, whose right to vote is even under constitutional guarantee, also possess freedom of expression. The state of detention and conviction is a measure that limits a person only in terms of their liberty; it is not a 'punishment' that eliminates freedom of expression. In short, the problem is not a 'gap', but the practice of restriction. The problem is not in the legislation, but in the practice. Especially in many prisons, including Silivri, a de facto meeting restriction is being applied, causing lawyers to wait all day due to the housing of prisoners far beyond capacity and the lack of a sufficient number of meeting booths.

The de facto restriction of the right to defense under conditions of extreme overcrowding should be resolved not by legislative change, but by prioritizing the constitutional principle that detention should be the exception. According to the UN Mandela Rules and the UN Basic Principles on the Role of Lawyers, known as the Havana Rules, states are obligated to guarantee the confidentiality and effectiveness of lawyer-client communication. The ECHR considers practices that prevent the effective use of the right to defense as a violation under Article 6 of the Convention.

"WE EMPHASIZE ONCE AGAIN"

We would also like to emphasize that no person or body can exercise a state authority that does not derive its source from the Constitution. The Grand National Assembly of Turkey (TBMM), as the holder of legislative power, can only make limitations regarding rights and freedoms if they are clearly foreseen in the Constitution, and in accordance with the letter and spirit of the Constitution (Art. 13). In this respect, even the TBMM cannot restrict the right to defense, which is inherent to the right to a fair trial. As the Istanbul Bar Association, we state that we will stand against any attempt to narrow the right to defense, and we emphasize once again that detainees' access to their lawyers is a legal and democratic necessity."