Even after the State of Emergency ended, further restrictions were announced by emergency decrees and subsequently accepted by Parliament. The Regulation on the Management of Penal Institutions and the Execution of Sentences and Security Measures,53 published in the Official Gazette on March 29, 2020, contains a number of provisions that lack any legal basis and violate the principle of confidentiality of communication between lawyer and client, and the lawyer’s legally founded duty of confidentiality. Article 72 of the Regulation contains two critical provisions which demonstrate this violation: ■ Article 72(2d) states lawyers who come to prison to see their convicted client must declare in writing whether the documents and files they bring with them are related to the defence. The law requires that documents and files “related to the defence” are not to be examined under any circumstances; and ■ However, Article 72(2e) of the Regulation contradicts the previously described provision. It states that in meetings between lawyers and those convicted of crimes within the scope of Article 220 and Book 2, Part 4, Sections 4, 5, 6 and 7 of the Turkish Criminal Code and the Anti-Terror Law, documents and files the lawyer declares to be pertinent to the defence as well as handwritten notes taken by the lawyer during the meeting can be searched. These two provisions contradict the essence of the right of defence and the confidentiality of the lawyer-client relationship laid down in international human rights jurisprudence.54 Twenty Bar Associations applied to the Council of State for the suspension of the regulation.55 There has been no development with regards to the objection at the time of this report’s publication. 53 Regulation on the Management of Penal Institutions and the Execution of Sentences and Security Measures (29.03.2020): https://www.mevzuat.gov.tr/MevzuatMetin/21.5.2324.pdf STATE OF EMERGENCY MEASURES More than 50 thousand people were arrested subsequent to the 2016 coup attempt. Although there are no exact figures about the number of lawyers; one study states that 1500 lawyers were tried; 605 were arrested and 441 were convicted.56 Those arrested were also restricted in their right of defence. Their right of confidential access to a lawyer was restricted since these meetings were accompanied by government officials. Moreover, all of the lawyers’ meetings with their clients were recorded. Consequently, investigations were opened against lawyers as a result of to these meetings. On November 11, 2017, the Turkish Bars Association (TBB) organised a conference on the “Restriction of Lawyers’ Defence Rights in Investigations and Prosecutions under the State of Emergency.” At the conference, which was attended by 121 lawyers from 70 bar associations, the unlawful occurrences in the process from custody to arrest during the State of Emergency, and the rights violations against the lawyers themselves and their relationship with their clients were summarised in 25 points.57 Below are some of the prominent issues identified by the lawyers: ■ During investigations, spaces were searched without search warrants, which were obtained post factum. Moreover, lawyers’ objections during searches either did not enter the record or there was unwillingness to record them. Lawyers were also prevented from contacting prosecutors, or there were attempts to do so; ■ The existing legislation was not abided by during searches against lawyers. 54 See for example European Court of Human Rights, S. v. Switzerland, App. Nos. 12629/87 13965/88 (Judgment of 28 November 1991) paragraph 48; and Campbell v. the United Kingdom, App. No. 13590/88 (Judgment of 25 March 1992), 56 Mass Prosecution of Lawyers in Turkey (August 2020; The Arrested Lawyers Initiative): https://arrestedlawyers.files. paragraph 46. 12 Mariya Alekhina and others v. Russia, App. No. 3804/12 (Judgment of 17 July 2018), para. 168 wordpress.com/2020/07/mass-prosecution-of-lawyers-in-turkey-aug-2020.pdf 55 20 baro, avukatın savunmaya ilişkin belgelerinin fiziki olarak aranmasını sağlayan yönetmelik için iptal başvurusu 57 OHAL Sapsamındaki Soruşturma ve Kovuşturmalarda Avukatların Savunma Haklarının Kısıtlanması Konulu Arama yaptı (Bursa Bar Association): https://www.bursabarosu.org.tr/tr/gundem-haberler-20-baro-avukatin-savunmaya-iliskin- Konferansı Sonuç Raporu (11.11.2017; Turkish Bars Association): http://d.barobirlik.org.tr/2017/20171127_ohalsonucraporu. belgelerinin-fiziki-olarak-aranmasini-saglayan-yonetmelik-icin-iptal-basvurusu-yapti.html pdf 28 A DEFENSELESS DEFENSE S TAT E O F E M E R G E N C Y M E A S U R E S 29