Turkey: The arrest, detention and prosecution of Filiz Kalayci | Letter

Re: The arrest, detention and prosecution of Filiz Kalayci

To: President Abdullah Gül; Prime Minister Recep Tayyip Erdogan; and others

From: John Cotter, LRWC Member

Date: 2009-10-27

LRWC has been informed of a serious situation involving a lawyer and human rights defender in Turkey. LRWC is asking for your immediate attention to the matter of Ms. Filiz Kalayci, a lawyer and member of the Executive Committee Human Rights Association, Ýnsan Haklari Derneði (IHD) who remains arbitrarily detained since her arrest on May 28, 2009. As her next court appearance is November 9, 2009, in the 11th District High Criminal Court in Ankara, quick action by authorities, including by your office, is critical.

LRWC calls on your offices to ensure that Ms. Kalayci is immediately released and that all charges against her are dismissed with a commitment by the various agencies of the Government of Turkey that it will take no further such unjustly punitive actions against her.

LRWC understands that the official justification for the arrest on Ms Kalayci on May 28, 2009, and for her continued detention and prosecution, is that she allegedly “aided illegal organisations”. However, information available to LRWC indicates that the arrest, detention and prosecution of Ms Kalayci is aimed at preventing and punishing her lawful and professional human rights advocacy on behalf of prisoners.

This arrest followed other actions apparently aimed at deterring Ms. Kalayci and her fellow lawyers from continuing to represent prisoners with complaints against state agents. On May 12, 2009, in Ankara, the offices and homes of Ms. Kalayci, Mr. Hasan Anlar, Mr. Halil Ýbrahim Vargün and Mr. Murat Vargün—all of these persons being lawyers linked to IHD and involved in the defence of the rights of prisoners—were raided by officers of the police Anti-Terror Unit. The Unit had a search warrant and a detention order directed against these lawyers. They were immediately arrested, and then placed in police custody in the Anti-Terror Forces Unit detention centre; they were later released, on the night of May 14, 2009. It was after their release that the Public Prosecutor then took steps to appeal, and so issued the warrant on May 25, 2009, that resulted in Ms. Kalayci’s arrest.

These arrests occurred after the publication on 6 February 2009 of the ÝHD report detailing human rights violations against prisoners by state agents and were clearly made in retaliation for the report and the other advocacy of Ms. Kalayci and her colleagues that has exposed wrongdoing by government officials.

Such retaliatory actions against Ms Kalayci and her colleagues by state agents (or by others), violates Turkey’s domestic and international legal obligations to protect the right of individuals, including prisoners to be represented by counsel and to also protect counsel’s right to provide representation independent of influence and coercion by state agents or others.

The right and duty of lawyers to both (a) vigorously defend the rights of their clients (in this case: prisoners alleging rights violations) and (b) take part in public discussion on matters concerning the law—such as prisoners’ rights—are protected by many international instruments. The Basic Principles on the Role of Lawyers (adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990) obliges the Government of Turkey to protect these rights and duties on the part of lawyers as a part of Turkey’s duty to ensure access to effective legal representation. The latter duty is required by the International Covenant on Civil and Political Rights to which Turkey is a party (23 December 2003). Article 16 of the Basic Principles provides, “Governments shall ensure that lawyers…shall not suffer, or be threatened with, prosecution or …other sanctions for any action taken in accordance with recognized professional duties…” Article 23 of the Basic Principles provides, “Lawyers …have the right to take part in public discussion of matters concerning the law.”

Advocating justice for prisoners alleging rights violations is indubitably part of Mr. Kalayci’s professional duties as a lawyer, as is investigating and reporting on such allegations.

We note that in every modern and mature society, a key aspect of lawyers’ work involves exposing and seeking remedies for excesses and abuses by state agents. It is only when lawyers are free to perform this duty for clients that the integrity of legal systems can be adequately maintained. Concomitant with this duty is the obligation on the part of the state to refrain from prosecuting or in any way harassing or intimidating lawyers fulfilling this duty and instead to protect them.

LRWC calls on the Government of Turkey to ensure:
1. the immediate and unconditional release of Ms. Kalayci; and,
2. withdrawal of all charges against Ms Kalayci; and,
3. the immediate termination of harassment and intimidation of Ms. Kalayci and her colleagues by state agents, including actions undertaken by the Public Prosecutor.
4. full compliance by state officials with the requirements of the UN Declaration of Human Rights Defenders, including most particularly Articles 1, which states that “everyone has the right, individually and in association with others, to promote and to strive for the protection and realisation of human rights and fundamental freedoms at the national and international levels”, and 12.2, which requires that “the State shall take all necessary measures to ensure the protection by the competent authorities of everyone, individually and in association with others, against any violence, threats, retaliation, de facto or de jure adverse discrimination, pressure or any other arbitrary action as a consequence of his or her legitimate exercise of the rights referred to in the present Declaration”;

LRWC also urges you to ensure official governmental respect for human rights and fundamental freedoms in accordance with international and regional human rights standards.