Violation Of The Right To Respect For Private Life Due To Prohibition Of Intervention
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 organization, but he was not allowed to attend the testimony. The Chief Public Prosecutor’s Office requested that the applicant be banned from acting as an advocate for 1 year due to the ongoing criminal proceedings against him for membership of an armed terrorist organization. The criminal court of peace accepted the request and decided to ban the applicant from acting as a defense counsel for a period of 1 year, limited to the offense under prosecution. The applicant’s appeal against this decision was rejected with finality on the grounds that it 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 defense 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 defense 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 defense 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 defense 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 organization crimes such as establishing an organization for the purpose of committing a crime and being a member of an organization, and Article 314 regulates the crimes of establishing and leading an armed organization and being a member of an armed organization. Accordingly, in order for a decision to be made to ban a lawyer from the duty of defense counsel, the person for whom the lawyer has undertaken the duty of defense counsel must first be a suspect, defendant or convicted of an organization, an armed organization or terrorism crimes. The second condition for the lawyer to be banned from acting as a defense counsel is that an investigation or prosecution has been initiated against the lawyer for the aforementioned crimes.
According to the aforementioned regulation, it is not necessary for the suspect/accused/convicted person and the lawyer to be under investigation or prosecution for the same offense in order to issue a prohibition decision. According to paragraph (4) of the aforementioned article, in order to issue a prohibition decision, the public prosecutor must first make a request in this regard. The court or judge is not authorized to issue a ban ex officio. The aforementioned paragraph also stipulates that an objection can be filed against the banning decisions.
In the event that acceptable situations such as organizational communication, which may be considered as abuse of the duty of defense 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 defense counsel is a measure that is conducive to achieving the goal within the scope of combating terrorist crimes and organizational crimes and in this context, 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 emphasized 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 defense counsel must contain relevant and sufficient justification in a way that is suitable for supervision.
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 defense counsel for the crimes subject to prosecution for a period of 1 year on the grounds that there is an ongoing prosecution against him for being a member of a terrorist organization. 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 a defense counsel, nor was there any determination in this direction. In addition, considering that the prohibition is not foreseen exclusively for 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 to cover 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 defense counsel, which would require a general prohibition, but only the fact that the applicant is being prosecuted. The appeal authority also conducted a limited review limited to whether the conditions for the prohibition decision were fulfilled, and did not check whether the judge exercised his 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.
For the reasons explained, the Constitutional Court held that the right to respect for private life was violated.