Istanbul, 8 January 2014
The trial of the President and the Council of the Istanbul Bar Association was resumed on 7 January 2014 in the Silivri courthouse. In reality this was not a resumption because the first hearing on 17 May 2013 had been abandoned before it started owing to lack of space in the courtroom. It was re-scheduled for 12 October 2013 and then postponed once again to 7 January 2014. These adjournments were not requested by the defence. The hearing on 7 January 2014 ended in a further adjournment which was vigorously opposed by the defence.
It will be recalled that the indictment charges the accused of illegally influencing the court in the “Balyoz” or sledgehammer trial of certain military personnel who were accuse of plotting to overthrow the government. The defence is that the accused were acting as required by law in reminding the court of the rights of the defence and of defence counsel, which had been repeatedly infringed up to that point.
On 7 January 2014 the defence presented its arguments. Perhaps strangely the accused, all nine of them, presented argument themselves, despite the presence of defence counsel for each of them. In the course of their submissions they produced a video and sound recording of the intervention in the Balyoz trial. This and the legal argument led made it clear beyond any possible doubt that the accused had committed no criminal offence. The case was thus ready for judgment, the only issue being a legal one.
Once the defence had closed its case the judge asked the prosecution to present argument in rebuttal. The prosecutor explained that he was a substitute, that he had not had time to read or familiarise himself with the file and that he needed an adjournment. The judge initially gave him two hours, over the lunch break, but ultimately he granted an adjournment to 24 February 2014, despite the well reasoned protests of defence counsel, who took the floor at this point. Essentially by turning up unprepared the prosecution avoided a judgment on the day of the trial.
Up to that point the trial had proceeded properly, and not without a little humour. The defence was well prepared and brought the case to the point where judgment could have been delivered. Indeed, under the rules of procedure, that is what should have happened. In addition, one would have expected the judge to have reminded the prosecution of its duties to the court, to have upbraided it for not being in a position to present argument and have delivered judgment. Instead it deferred to the prosecution. The heavy hand of the state was apparent in the peremptory and arrogant way in which the substitute prosecutor demanded an adjournment and in the judge’s docile acceptance of this demand, as if the defence had no rights. In other words the judge did not have the courage to criticise or to resist the prosecution.
Delay suits the state, because it keeps the indictment alive and the accused under fire which for practising lawyers is already a sanction. Since it is manifest, from this case and others, that the state wishes to discourage opposition to or criticism of any of its policies or actions the further delay in this case is in fact a positive outcome for the state, which on the merits is wholly unjustified. It may be noted in passing that although the trial had been fair up to that point, the granting of the adjournment flouts the principle of equality of arms because it gives the state or the prosecution an advantage to which, because of its improper conduct, it was not entitled. Had the defence come unprepared the outcome would have been wholly different.
At the close of proceedings, the Istanbul Bar Association held a press conference on the courtroom steps for the international observers. The European Criminal Bar Association spoke first and roundly condemned the adjournment as a breach of defence rights and this was supported by other international observers from the Netherlands, Germany, Italy and France. The spokesperson from Germany accused the prosecution of deliberately substituting the prosecutor at the last minute so as to cause further delay, the previous delays also having been engineered deliberately, she said, to the detriment of the defence.
As usual the international observers were made very welcome by the Istanbul Bar. Somehow they found space for them in a courtroom so overcrowded that those standing had difficulty in shifting their weight from one foot to another. Or rather they recognise that the presence of international observers from other jurisdictions is vital to ensure that the trial is fair and so the Istanbul Bar makes sure that their foreign colleagues are seen by the judge to the point of causing a commotion to get them within sight of the bench.
There is little to be added to the report of the session, save perhaps to say that the atmosphere in the courtroom was relaxed up to the point where the prosecution played its joker. This contrasts starkly with the atmosphere on 17 May 2013, where there was palpable fury that a wholly inadequate courtroom had been provided and that a wholly incompetent substitute judge had been put on the bench at the last minute, so necessitating the first adjournment.
What is surprising to the foreign observer from northern European jurisdictions is the fact that the judge does not control the courtroom, which gives the impression of chaos. But in fact proceedings just carry on despite shouts to open the windows or to let more people in and despite the perambulations of the court usher who does not seem to need the judge to tell him how and when to navigate around the well of the court.
Proceedings did stop momentarily, however, when the public applauded the pleas of each of the accused, not least the one which reminded the court that Turkey was being watched by the world at large and by the EU in particular and that if the indictment in this case is anything to go by Turkey is far from fulfilling the Copenhagen criteria. Applauding arguments in court is rare, even in Turkey, apparently.
A few concluding remarks are necessary. This case is not over, although it should been brought to a close and should actually never have been brought in the first place. The presence of international observers will be required on 24 February 2014, for the reasons stated and known. In addition, despite an improvement this is not yet a fair trial, because the court is not independent, the proof being that it lets a woeful prosecution dictate procedure.
It is also worth noting that lawyers are being prosecuted in other cases and in many instances are in detention pending judgment, which given the aptitude for adjournment and the number of pending prosecutions, could be for some considerable time yet. And it will be recalled that there are more journalists in jail in Turkey than in Russia or China.
The prosecution of lawyers (and journalists) is a warning sign, a seismograph of pressures in the illiberal country in question. Thus the prosecution of lawyers in Turkey indicates major tremors ahead unless the pressure is reduced and the fault lines repaired. This can only be done by restoring the rule of law in Turkey and for this national, international and supranational action is necessary.
Scott Crosby
Advocate
Human Rights Officer of the European Criminal Bar Association
