Obligatory Counsel: Duty or Sacrifice?

With further changes made in 2005 under the [EU linked] harmonization of legislation, the concept of obligatory counsel was expanded to include aggrieved children as well as covering adults who would be on trial for offences punishable by a maximum of more than 5 years imprisonment.

Obligatory counsel has been arranged as a guarantee of the "right to defence" for individuals deemed unable to defend themselves sufficiently due to personal conditions (such as being a minor) or being confronted with a judicial problem that could lead to severe consequences for an individual (to be accused of an offence that is punishable by more than 5 years imprisonment).

In summary defendants and victims aged under 18 and individuals accused of an offence punishable by more that 5 years imprisonment cannot be questioned or prosecuted without the "legal assistance" of a lawyer.

This necessity has from the very beginning been understood as the statutory obligation of "the presence of an attorney".

Obligatory counsel is the greatest guarantee of the right to defense

The greatest guarantee of the "right to defence" which itself is guaranteed by the Constitution and international conventions, is obligatory counsel. Because persons who fall in the scope of this institution cannot be put on trial without the legal assistance of a lawyer they choose.

If they cannot assign themselves a counsel, then a counsel will be appointed for them with no obligation to pay for services.

Accordingly, it is the Bar Associations who appoint the counsel and the legal costs have to be covered by the Ministry of Justice. In this context, obligatory counsel services constitute an essential part of legal aid services.

Meaningless debate: Free or not?

This situation is the cause of the "payment" debate that has surfaced on the agenda in the recent days.

Because the Ministry of Justice uses a fund created from duty fees to allocate payments [for the service] through the Union of Bar Associations of Turkey (TBB).

While the scope of the service offered was expanded in 2005, a failure to expand the resources to be channelled to this fund created a situation where the present budget is no longer sufficient enough to cover the cost of the services.

When for approximately a year no solution was found to the situation, Bar Associations announced that as of August 1, 2006 they had halted all obligatory counsel services. Hence the issue of the right to defence became a meaningless debate on whether it was free or not.

Defence right a policy based on sacrifice of lawyers

The vacuum of any sense in the present situation stems from the deep rift between "the guarantee to access legal aid" that is subject to being secured by law and the practical expression of this, which is seen as "the necessity to have a lawyer present".

Whereas the problem is not one about providing the defence service for free. It is the state policy which itself is based on building the "right to defence" on the "sacrifices" of lawyers.

I refer to this as a state policy because it is not the choice of one government alone, but the preference of all governments.

Payments foreseen to cover the service of defence delivered under obligatory counsel have from the very beginning been only as high as half the minimum wage tariff that is set for counsel, leave alone being anywhere close to real lawyer fees.

If one recalls that it is actually outlawed for a counsel to work for a tariff under that set for minimum fees, how can the state's setting of rates so much under the rates for obligatory counsel be explained? What does this mean?

Since the year 1992, by not preparing the required infrastructure for the obligatory counsel service, by wanting the service to continue with low rates and by not [even] paying these, the state has been holding up the appearance that it has actually ensured the right to defence.

Professional organizations acting like the state too

But since 1992, by approving that tariff every year, professional organizations are acting identical to the state and giving the appearance that they ensure the "right to defence".

Only where the payment is not made do they act in a way which will bring some sound, but even then they do it in a way that will prevent citizens from using their right to defence and without creating an infrastructure that will guarantee the right to defence further than just having "the presence of a counsel" under the obligatory counsel service.

As all of these take place, the public opinion and the supposed echo of its voice, the press, see the problem only in summary, as "lawyers don't get paid, because of this no counsel will be appointed".

Guaranteeing equal and wide-spread defence services

Every lawyer is prepared to serve whether or not paid for an individual not to be left without defence.

This is one of the most important guarantees of he right to defence.

But the "right to defence" in a society cannot only be constructed on this professional ethic. To guarantee that everyone benefits from equal and effective defence services is primarily the duty of the state and the organization of defence.

For this to happen, a determination is required to allocated the necessary budget to providing the service in an equal and widespread way, to measure and monitor its effectiveness.

If the government and bar associations displayed this determination, things would of course be easy. But should the society not demand this too?

Can some questions not be raised on the essence of the right to defence? For instance:

* Does benefiting from legal aid eliminate the right of benefiting from a self-assigned [optional] counsel? Because at this moment this is the way the counsel appointing system is working.

* The current system assigns a counsel to anyone who requests it but do those benefiting from this service think they are able to use their "right to defence"?

* Do lawyers believe that in the existing system they can ensure "the right to defence"?

* If sufficient funds are found and the payments foreseen in the tariff are made, would this mean that the problems related to ensuring the "right to defence" have been overcome?

* What social benefits of the society does obligatory defence protect, what social benefits will be harmed if this service is not offered?

* Why don't the people care? What needs to be done for the people to clam this right? Whose duty is this? (SA/TK/II/YE)

* Seda Akco is a lawyer of the Istanbul Bar Association and a leading children rights activist.