To use the right to a fair trial

The following article was published in the December 2020 issue of the International Review of Contemporary Law, the journal of the IADL.

by Aytac Ünsal (see this article also in Turkish)

The Right to a Fair Trial, like every right, has taken its place in the legal texts fertilized by the blood of the people of the world. The people have had to struggle to attain judgments based on the law rather than judgments based on the interests of god rulers, tyrants, kings and sultans. Thousands of heads were laid under guillotines   for the right to a fair trial to reach its present form.. The jurist is obliged to know the historical background of every right and to act  in accordance with its  meaning and an understanding of the sacrifices that led to its establishment. We act  with this responsibility in mind. In our country, Turkey, the right to a fair trial is one of the rights that has not been  inplemented for a very long time. Trials are conducted through political courts, not on the basis of law, but on the basis of the interests of the state. It is impossible to call them judgments.  A trial is legally aimed at distinguishing between what is unlawful and  lawful, right and wrong, lie and truth. In our country, the process called the trial today consists of administrative procedures carried out by political committees.

I have experienced numerous examples of this in my short time  as a lawyer.,  My experience with this problem  began when I completed my internship and before I started my law practice. On June 16, 2013, our phone rang and  my lawyer friend, whom I was interning  with, was called to a hospital in Okmeydanı, Istanbul. His client said  a 14 year old boy, a relative, was shot by police.  When we arrived at   the hospital, we didn’t see anyone   at first. Five  minutes later, a 14-year-old boy entered the hospital emergency room in his  arms. He was unconscious  and there were traces of blood on him. While this boy, whose name was Berkin Elvan, went to buy bread, he encountered the police who were throwing tear gas at people. Berkin Elvan, who was shot in the head with a pepper spray capsule, died after being in a coma for 269 days. Although seven  years have passed, the police who shot  him  have  not been punished.

One of the most important files I followed up with after I started my lawy practice was the case of Halkın Hukuk Bürosu Contemporary Lawyers Association, which was  tried on December 2013.  Nine  lawyer friends were arrested due to their professional activities. During the hearings, it was discussed whether activities such as exercising the right to silence and attending his client’s funeral constituted membership of the organization. I started my profession by witnessing that my colleagues’ rights to a fair trial were violated.  After that, I saw many more examples.  I was the lawyer  for a young woman named Dilek Doğan, who told the police who entered her house illegally, to wear shoe covers and not to dirty  her house, was shot and killed by the police.  There were many  illegalities  during the trial. The  police who were accused of the crime were especially protected by the state. All steps were taken  so that he would not be arrested.

In May 2014, an explosion and collapse occurred in a mine in Soma.  Three hundred and one miners lost their lives after being buried underground.   Our substantial legal actions proved that the mine‘s boss buried the three hundred and one people alive so that 1 ton of coal would be extracted more cheaply  . It was almost certain that the defendants would receive life sentences. The court panel  was also convinced of the facts in the file. Meanwhile, government intervention came immediately. First, the court’s panel of judges was changed. A judge who cleared the bosses in a different mine massacre  was made the court president. Right after that, we, as the lawyers in the case , were arrested. As a result, the boss of the mine was acquitted.

There was a coup attempt in Turkey in 2016,  after which  the government declared a state of emergency. The implementation of the state of emergency was used entirely to liquidate and punish dissidents, socialists, and democrats. Academics and civil servants were dismissed without any legal justification. No legal avenues have been opened to appeal. During this period, the dismissed academic Nuriye Gülmen started protesting  about her job being unlawfully taken away. She was constantly detained for actions she started alone. After the arrests, Nuriye Gülmen alone won the right to hold a sit-in.

She started the protest by sitting alone. Then, an expelled teacher, Semih Özakça, joined her. The actions  of the two instructors  were met with interest by the public. After a while, thousands of people started to come to Ankara Yüksel Street, where the action took place. Those who were expelled turned their eyes to Ankara Yüksel Street. This interest  frightened  the government considerably. The Ministry of Interior printed a leaflet criticizing the two educators. The two  were targeted unlawfully. The Minister of the Interior also made statements to the press about them . Shortly after this targeting, they  were arrested despite their hunger strike. Two days before their first hearing, we as their lawyers, were arrested. As a result, the rights of the two educators to a fair trial were violated. We can  add more cases in which we have defended our clients’ rights to a fair trial, because in Turkey the right to a fair trial is systematically violated  While we were fighting these violations on behalf of our clients, we ourselves suffered   the same violations. We were detained on the grounds that we were fighting for the right to a fair trial and acting as lawyers in the cases mentioned above. We were detained for nine days without any information being given to us. We were subjected to torture. Then, despite the lack of evidence against us, we were arrested. Basically, they were trying to prevent us from doing our job. Even though we were in prison, we continued to be lawyers.

Our client 28-year-old Mustafa Koçak, who was under arrest in Izmir, started a death fast with the demand of a fair trial.  He had received an aggravated life sentence without any evidence. There was only one confessor’s gossip phrase, “he told me he was helping the action at a meatball restaurant”. Another confessor who testified about him admitted that he was threatened by the National Intelligence Agency and the police, so he had to give false testimony about Mustafa. This statement was not considered by the court. Based on a single statement, Mustafa was buried in concrete for life at the age of 28. He did not accept this situation. He asked for the Right to a Fair Trial. He started the death fast. If I hadn’t been in prison, we would have been Mustafa Koçak’s lawyer. We were going to fight this injustice. They took our lawyer‘s robes away from us.   We  decided to defend our clients with our lives and substitute our very lives for the robes that had been taken.

We started the death fast on April 5 to support Mustafa Kocak’s demand for the right to a fair trial and the right of Grup Yorum to perform concerts and the right of all peoples living in Turkey to a fair trial. Our fundamental rights and freedoms were not implemented in our country. None of our rights are guaranteed. Our rights  have been violated by arbitrariness and bullying. We wanted to be turned into unrighteous slaves, the living dead. We refused to be alive, dead. My comrade  in justice who lost her life on a death fast is Ebru Timtik, As  she said, ” I did not choose the death fast. The judicial system has condemned the people’s lawyers to death,  because of the work you are involved in. Professionally and politically, they wanted to kill us. I just decided on the shape of it. Will it be by resisting or going quietly?”

In a three-panel trial, the government said, “We gave you the punishment. That‘s it.” They did not allow any legal appeal. The court of appeals did not say anything concrete in its several-page decision. Social opposition was suppressed by the state terror that had been practiced for years. Making a press statement on the streets and squares was punished with severe penalties. In prison conditions, we had no choice but to resist with our bodies,  the only weapon we had. The Right to Fair Trial, which has been gained at great prices for centuries, now had to be protected at great prices. By starting the death fast, we have seen a very serious support with our struggle for law and Justice. Thousands, millions,  have supported our demands and resistance. This showed how much the right to a fair trial was violated in Turkey.  Our resistance has been supported by lawyers and peoples all over the world. This demonstrated how a current demand, the Right to Fair Trial, is all over the world.

The fact that we, as a people, have the right to resist when our Right to a Fair Trial is taken away from us and our rights are usurped arbitrarily. with millions of people has been reconsidered. The right to resist had found its place in the basic legal texts. It was a right to resist where there was suppression and oppression. We, as lawyers, have exercised that right. We have been reminded that this right is of importance and value  and cannot be taken from us. Yes we died, Yes we got hurt. But we know that no right in history has been earned without paying a price. No rights were protected at no cost. This is a very concrete historical fact. Lawyer Ebru Timtik died to protect our rights. To put it more accurately, she was killed by a political power  unwilling to ensure her Right to Fair Trial. She shook the whole world with her death. It became a symbol. Now lawyer Ebru Timtik  informs lawyers and people with her life which underlines the facts. It reminds me of how important it is to live humanely.  And she asks, will we allow our rights to be usurped one by one without fighting, or will we protect our rights by using our right to resist? The answer to the question and the attitude we  take will show whether we have fulfilled our legal responsibility. We, as all the Democratic, Progressive, revolutionary lawyers of the world, will continue to answer the question using our right to resist. And it is a fact that history and science show: we will win!

Aytac Ünsal, Progressive Lawyers Association

Aytac Ünsal graduated from Ankara Başkent University in 2012 and joined the Ankara Bar Association after his internship. Since then he has worked in the People’s Law Office as a lawyer. He is also an active member of the Progressive  Lawyers Association.

In 2017, he was unlawfully detained and arrested after three years of practicing law. He started a death fast together with a colleague and comrade, Ebru Timtik, demanding a fair trial after three years of unjust imprisonment.  They also demanded a fair trial for all others who were suffering as a result of ongoing injustices. He was conditionally released on the 214th day of his  hunger strike to death. After his release, he suspended his hunger strike on September 4.  He is still being treated in Istanbul and has several health problems due to the long hunger strike. He remains at risk for rearrest when he completes his medical treatment.