Sledgehammer case and ECtHR

Faced with overwhelming and compelling evidence that implicates suspects in the Sledgehammer (Balyoz) trial, in which the defendants are accused of attempting to overthrow the democratically elected government in 2003 by attempting to wreak havoc in Turkey with a series of planned provocations, including but not limited to assassinating non-Muslim minority leaders, triggering a war with neighboring Greece over disputes in the Aegean and bombing major mosques in İstanbul, the suspects in the case fear that they have little chance of surviving the proceedings without a severe punishment in the end. That is the main reason why some defendants and their attorneys drew their last straw to stall the trial by clearly abusing an article in the Code on Criminal Procedure (CMK).

Article 188 of the CMK says defense lawyers must be present in criminal cases where five-plus years of jail time are sought by the prosecutor. Because the judges cannot deliver a ruling in the absence of the lawyers, the goal is to make the case questionable in terms of procedural matters. The letter and intent of Article 188 is to give fair representation to suspects in criminal cases so that their rights are protected rather than to enable defendants and militant lawyers to sabotage the proceedings by refusing to attend hearings in the courtroom. The trial is nearing completion as the prosecutors presented their final legal opinions to the court panel. To break the deadlock in the case due to the absence of defense lawyers, the İstanbul 10th High Criminal Court accepted prosecutor Hüseyin Kaplan’s request to have the court order the İstanbul Bar Association to appoint legal counsel to defendants in the case.

However, the bar association did not comply with the court order, prompting the court to file criminal complaints against bar association officials who refused to provide defendants with lawyers. The complaint was also filed against defense lawyers who refused to attend hearings. The İstanbul Bar Association went so far as to say that its head and 10 other officials would not comply with a summons from a prosecutor for them to testify as suspects on charges of attempting to interfere with the execution of judicial orders.

This does not surprise me, considering how militant the administration of the İstanbul Bar Association is under Ümit Kocasakal, who was barely elected as the chairman of the İstanbul Bar Association in a race in which three-quarters of the lawyers in İstanbul voted against him in 2010. Though he vowed to uphold law and justice at the time, he did everything to make a mockery of courts trying landmark cases like Ergenekon and Sledgehammer and continued to bash judges and prosecutors in his public remarks. Under his administration, the İstanbul Bar Association was heavily criticized for its pro-coup and militarist stance. Looking at his track record, I would not discount earlier claims that Kocasakal has links to the People’s Liberation Army of Turkey (THKO), an illegal and armed Marxist terrorist organization.

By not attending the court hearings, the attorneys and their defendants have dealt a severe blow to their appeal process either in the higher courts in Turkey or in the Strasbourg-based European Court of Human Rights (ECtHR) if it ever ends up being litigated there. A recent decision by the 4th Chamber of the Supreme Court of Appeals about two officials working for the İzmir Bar Association, which refused to appoint defense lawyers for a case in İzmir, may set an example for the İstanbul Bar Association. In 2007, the İzmir Bar Association refused to appoint defense lawyers for a case in which two minors stood trial. The Ministry of Justice asked for a detailed investigation into the two bar officials; the 4th Chamber of the Supreme Court of Appeals recently ruled that these officials failed to fulfill their duties and should be punished in accordance with Article 257 of the Turkish Penal Code (TCK).

I believe the defendants’ attorneys also killed the suspects’ chances of winning a case against the Turkish government in the ECtHR. The case law of the Strasbourg court indicates that the defendants’ demeanor throughout the trial process and uncooperative behavior in the courtroom will void the possible complaint that the criminal proceedings brought against them has been unduly long.

Article 6 of the European Convention on Human Rights (ECHR) asks member states to comply with the “reasonable length” requirement in court proceedings to satisfy fair trial criteria. When examining the reasonableness of the length of proceedings, the Strasbourg court looks into the particular circumstances of the case, how complex it is, and the number of defendants as well as the applicant’s conduct. In the Sledgehammer case, it is obvious to court reporters in Turkey that the suspects’ behavior and their attorneys’ conduct are the main obstacles preventing the judges and prosecutors from completing the proceedings.

These suspects have enjoyed legal representation from the initial stages of police interrogation to depositions in the prosecutors’ offices. They were advised throughout the trial process by their legal counsel. When they realized the court decision might not be in their favor, they decided to sabotage the process. The Sledgehammer trial has already satisfied Article 6 conditions for the right to a fair trial, which was sufficiently “practical and effective.” If there was any restriction to this right, it was the decision of the defendants’ themselves that brought this limitation. Therefore, no matter how hard they try to create a perception of a miscarriage of justice in the case by thwarting the fulfillment of the aims of Article 6, which talks about the equality of arms between the investigating or prosecuting authorities and the accused, it is doomed to fail. The authorities have done everything possible to make sure they were represented. The liability here rests with the defendants and their lawyers.

Moreover, in numerous cases, the Strasbourg court noted that the responsibility of the state is incurred by the actions of their organs. “A lawyer, even if officially appointed, cannot be considered to be an organ of the State,” the court says as a rule. That means, in our case, the Turkish government will not be responsible for the conduct of defendants or their attorneys who decided to boycott proceedings. The court acknowledges, however, that there may be occasions when the government should act and not remain passive when problems of legal representation are brought to the attention of the competent authorities. Looking at the case, the authorities have never remained passive, as prosecutors and the court have reasonably done everything they could.

If these attorneys think that they have a chance of winning a case at the ECtHR using the argument of denial of legal assistance, they will be surprised to find out that there is no strong base here for such an argument. On some occasions (especially Sialkowska v. Poland), the European court has dealt with cases where the attorneys refused to appeal the defendant’s case in courts. In the court’s opinion, the mere fact that a lawyer can refuse to represent a party in proceedings is not tantamount to a denial of legal assistance. The court examines the risk of arbitrariness in such cases. The only arbitrariness I see in the Sledgehammer case is the ill-advised conduct of defendants’ attorneys and the refusal of militant bar association officials to comply with court orders.

As a general principle, the ECtHR says that the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of a fair trial. But this right is not absolute. It even says that the legislature must be able to discourage unjustified absences with sanctions. There are some sanctions available in the law as we saw in the criminal complaints filed against İstanbul Bar Association officials and boycotting attorneys.

But to close loopholes in the law, the government submitted a legislative amendment to CMK Article 188 in Parliament to allow the courts to render their decisions even if there was no legal representation for the defendants in the final hearing. Submitted in the third judicial reform package, the changes envisage that the court can render its decision if the prosecutor has already submitted his final opinion in the case during the presence of the defendant attorney or the defendant’s attorney was notified in advance with the prosecutor’s final opinion in writing. In these cases, the amendment will allow the court to rule if the defendant’s attorney is absent in the courtroom without a justifiable excuse. The change was approved by Parliament’s Justice Commission and will be debated on the general floor before its likely approval.

The ECtHR already ruled against Çetin Doğan, the number one suspect in the Sledgehammer case, in a decision on April 10, 2012, saying that most of the complaints raised by Doğan — in application number 28484/10 and dated May 26, 2010 — are manifestly ill founded. The panel of seven judges agreed that there is overwhelming evidence against him and proceedings are being conducted according to the standards of the ECtHR. All five complaints were rejected with the exception that an effective remedy to challenge the legality of pretrial detention in Turkey is lacking, which is not unique to the Sledgehammer case.

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