Confidentiality of Correspondence with Counsel as a Requirement of a Fair Trial: Turkey—Quo vadis?

Abstract

The attorney-client privilege is extensively provided for under the Turkish Attorneyship Law as an essential component of defence rights. This legal privilege is also guaranteed through numerous provisions in the Turkish Criminal Procedure Code in relation to both the investigation and trial phases. Under Turkish law, the breach of the attorney-client privilege constitutes a crime and, as distinct from other jurisdictions, the law recognises no exception. This state of affairs can be attributed to historical and constitutional developments in Turkey. Significantly, the judgments of the European Court of Human Rights (ECtHR) gave further stimulus to the legislative change in this regard. Yet, with the recent incorporation of emergency decrees in the Turkish Criminal Procedure Code, the attorney-client privilege has been severely restricted. The criteria for these restrictions have been formulated imprecisely and used generally without any objective basis in practice. This approach has had repercussions on the Turkish criminal justice system in many ways, in particular resulting in a dramatic erosion of the defence rights. This chapter provides a general framework for the attorney-client privilege in Turkish law and, in light of the jurisprudence of the ECtHR, examines the recent changes through emergency decrees in Turkish legislation, and their interpretation and implementation in practice.