Events
The applicant, who is a lawyer, wanted to attend the testimony of his client after he was taken into custody for being a member of an armed terrorist organisation, but he was not allowed to attend the testimony. The Chief Public Prosecutor’s Office requested that the applicant be banned from acting as a defence lawyer for 1 year due to the ongoing criminal proceedings against him for membership of an armed terrorist organisation. The criminal court of peace accepted the request and decided to ban the applicant from acting as defence counsel for a period of 1 year, limited to the offence subject to prosecution. The applicant’s objection to this decision was rejected with finality on the grounds that the decision was in accordance with the procedure and the law.
Allegations
The applicant claimed that his right to respect for private life was violated due to the decision to ban him from acting as a defence counsel.
Assessment of the Court
Considering that the restriction on professional life subject to the application has a serious impact on the applicant’s private life and that this impact has reached a certain level of gravity, it has been understood that the applicant’s allegations can be examined as a whole within the scope of the right to respect for private life based on the result. In this context, the prohibition from the duty of defence counsel is regulated in Article 151 of the Code of Criminal Procedure No. 5271. Paragraph (3) of the aforementioned article, as it was in force on the date of the incident, states that the lawyer who undertakes the duty of defence counsel or attorney for those who are suspected, accused or convicted of the crimes listed in Articles 220 and 314 of the Turkish Criminal Code No. 5237 and terrorist crimes may be banned from undertaking the duty of defence counsel or attorney if there is an investigation or prosecution against him due to the aforementioned crimes. Article 220 of the Law No. 5237 regulates organisation crimes such as establishing an organisation for the purpose of committing a crime and being a member of an organisation, and Article 314 regulates the crimes of establishing and leading an armed organisation and being a member of an armed organisation. Accordingly, in order for a decision to be made to ban a lawyer from acting as a defence counsel, the person he/she is acting as a defence counsel must be a suspect, defendant or convicted of an organisation, an armed organisation or terrorism offences. The second condition for the lawyer to be banned from acting as a defence counsel is that an investigation or prosecution has been initiated against the lawyer for the aforementioned offences.
According to the aforementioned regulation, it is not necessary for the suspect/accused/convicted and the lawyer to be under investigation or prosecution within the scope of the same offence in order to issue a prohibition decision from acting as a defence counsel. According to paragraph (4) of the aforementioned article, in order to issue a prohibition decision, it is mandatory for the public prosecutor to make a request in this regard. The court or the judge is not authorised to issue a ban ex officio. This paragraph also stipulates that an objection may be lodged against the decision to ban a person from acting as a defence counsel.
In the event that acceptable situations such as organisational communication, which may be considered as abuse of the duty of defence counsel, are determined according to the concrete conditions of each case; it can be said that temporarily banning the lawyer, who is being prosecuted for the aforementioned crimes, from the duty of defence counsel is a measure that is conducive to achieving the aim within the scope of combating terrorist crimes and organisational crimes and in this context, it is in accordance with the requirements of democratic society. However, in terms of an interference with the right to respect for private life, the reasoning of the decision of the courts of first instance is of great importance in determining whether a fair balance has been achieved between the burden to be borne by the applicant and the public interest. The courts of first instance have the obligation to demonstrate with a relevant and sufficient justification that the interference with fundamental rights and freedoms corresponds to a compelling need and is proportionate. In this context, in the concrete case, it should be emphasised that the discretionary power granted to the court/judge by the Law in the context of the application of the measure of prohibition from acting as a defence counsel must contain relevant and sufficient justification in a way to be suitable for inspection.
When the case in question is evaluated within the framework of all these explanations, it is seen that the applicant, who is a lawyer, was banned from acting as a defence counsel for 1 year for the crimes subject to prosecution on the grounds that there is an ongoing prosecution against him for being a member of a terrorist organisation. In the aforementioned decision, it has been observed that there was no examination of the applicant’s misconduct or actions that would adversely affect the investigation in which he acted as defence counsel, nor was there any determination in this direction. In addition, considering that the prohibition is not specific to the investigation file in which the applicant wants to participate in the testimony of the applicant, it is understood that the prohibition may have consequences in a way that covers all the files in which the applicant acts as a lawyer.
It is understood that neither the request of the public prosecutor nor the decision of the judgeship contains a determination regarding the performance of the applicant’s duty of defence counsel, which would require a general prohibition, and that it is based only on the fact that the applicant is being prosecuted. The appeal authority also conducted a limited examination limited to whether the conditions of the prohibition decision were fulfilled or not, and did not check whether the judgeship exercised its discretionary power in accordance with the law when making the prohibition decision. In this case, the relevant judicial decisions did not provide a relevant and sufficient justification that the measure subject to the complaint corresponds to a compulsory need and is proportionate according to the circumstances of the concrete case.
The Constitutional Court decided that the right to respect for private life was violated for the reasons explained.
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