‘Intervention against bar association chairs is a violation of rights’

* Photo: Murat Emir / Twitter

Click to read the article in Turkish

The Ombudsman Institution of Turkey (KDK) has concluded that the police intervention against bar association chairs is a violation of rights.

After a bill foreseeing amendments to the Attorneys' Act was submitted to the Parliamentary Speaker's Office last year, the chairs of several bar associations set out for the capital city of Ankara in protest against this amendment that would allow the establishment of multiple bars.

However, the bar association chairs were prevented from entering the city by the law enforcement and they were faced with police intervention.

While the bill was passed into law despite the protests, main opposition Republican People's Party (CHP) MP Mahmut Tanal applied to the KDK and requested that the unlawfulness of the intervention be assessed.

Examining the application of Mahmut Tanal, who is himself a lawyer, the Ombudsman Institution, chaired by lawyer Şeref Molkoç, has concluded that the intervention against the bar association chairs "led to a violation of freedom of assembly and the freedom of expressing opinions."

The Institution has also concluded that recommendations should be made to the Ankara Governor's Office "so that the necessary measures can be taken to prevent similar interventions that might lead to such violations of freedom of assembly and expression" and to the Ministry of Interior "so that legal, administrative and institutional measures can be taken to pave the way for peaceful meetings that do not disturb public order and freedom of expression in compliance with the European Court of Human Rights precedents."

'Intervention into a peaceful demonstration'

In the decision of the Institution, it has been underlined that the frames of freedom of expression and expressing opinions and freedom of assembly and demonstration are clearly set in the Constitution. Accordingly, the Institution has stressed that everyone has the right to hold an unarmed and nonviolent meeting and demonstration without getting prior permission.

The decision of the KDK has noted that this right has also been granted to people by the Law no. 2911 of Meetings and Demonstrations.

Referring to similar ECtHR verdicts indicating that "public authorities shall not intervene in protest demonstrations as long as they are not openly violent or make a call for violence and they maintain their peaceful character," the Institution has stated that the intervention of the law enforcement against the bar association chairs was an intervention against a peaceful demonstration that did not disturb public order to a vital extent.

'Bar chairs marched for a legitimate aim'

The decision of the KDK has also referred to the Attorneys' Act no. 1136, which defines bar association chairs' responsibilities as "protecting the honor of attorneyship and the order of the profession."

The Institution has indicated that the representatives of defense, amid a process of legal amendment concerning themselves, wanted to use their right to organize a protest demonstration, one of the fundamental Constitutional rights, around a highly legitimate aim and subject.

Reminding the related parties that 57 bar association chairs wanted to hold a symbolic march for 250 meters on Eskişehir-Ankara D-200 state road, but were prevented by the law enforcement on the grounds of violation of the Law no. 2911, the Institution has said:

"...all else aside, intervention into a peaceful demonstration which is both peaceful and does not disturb public order on the grounds that it is against the Law no. 2911 is a violation of rights according to both international rules of law and the Article 90 of the Constitution."

Governor's office: No order constituted a crime

On the other side, in the defense sent by the Ankara Governor's Office to the Ombudsman Institution, it was indicated that "the action taken by the Security officers during the protest on June 22 was appropriate and in compliance with the legislation; for this reason, there was no order that constituted a crime since maintaining public order and preventing an existing crime was among the main duties of the police."

About the amended Attorneys' Act

Allowing the establishment of more than one bar in a city, which was previously not the case in Turkey, the Bill on Amendments to the Attorneys' Act and Some Laws has passed into law after it was published in the Official Gazette. As per this law, a bar association can be established by a minimum of 2,000 lawyers if there are over 5,000 lawyers in a city.

According to the figures of the Union of Turkish Bar Associations (TBB), while 17,598 lawyers are registered in Ankara Bar Association, 46,052 lawyers are registered in İstanbul Bar and 9,612 lawyers in İzmir. The total number of registered lawyers across the country is 127,691.

That being the case, the bill "to split bar associations" affects these three bar associations with over 5,000 lawyers. In order for a new bar to be established, 2,000 lawyers must be registered there.

Why should it be annulled?

Speaking to bianet, İzmir Bar Association Chair Özkan Yücel previously stated the following about why this law should be annulled:

"The Constitutional Court has already made decisions on representative justice for professional chambers. With this new law, [bars] that have 40 members and 40,000 members will be equally represented. This inequality leads to injustice in representation and cannot be legally defended."

"Also, with the new regulation, all bar elections will be held in October 2020, but the bar chairs and bar association boards that were elected a year ago are still on duty and they must be on duty for another year [bar boards are elected for two years]. The election was brought forward by an act against the will of voters, which is against the right to vote and to be elected.

"Bar associations are based on the Constitution. We carry out a public duty, including the Law on Criminal Procedures and judicial legal aid services. As there can't be multiple municipalities, multiple sub-governorships, there can't be multiple bar associations."

About the Ombudsman Institution (KDK)

Ombudsman Institution has been established with the adoption of the Act numbered 6328 and published at Official Gazette in 29/6/2012 at number 28338. The Ombudsman Institution, which is attached to the Grand National Assembly of Turkey, has legal personality, has a separate budget and is centrally based in Ankara. The purpose of the Institution is to establish an independent and efficient complaint mechanism regarding the delivery of public services and investigate, research and make recommendations about the conformity of all kinds of actions, acts, attitudes and behaviours of the administration with law and fairness under the respect for human rights. Natural and legal persons including foreign national may lodge complaints to the Ombudsman Institution.

(HA/SD)

TURKEY’S OMBUDSMAN INSTITUTION