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Attorney/Lawyer and Monopoly in Profession of Attorneyship
Attorney/lawyer and attorneyship are the most important safeguard mechanism of the right to defence. Freedom of expression and a special reflection of it, right to defence are accepted as a fundamental right by the attorneys in all legal systems.
Under its legal system, each country has its own attorneyship law regulating the procedures of attorneyship. Depending on the decision of the country, attorneys in foreign countries may also try cases of certain types. However, as a principle, each country grants the attorneys enrolled in its bar association the monopoly to carry out the profession. In other words, nobody other than the attorneys meeting certain criteria is allowed to exercise their power to defence stipulated in the law. Monopoly granted to attorneyship provides a safeguard mechanism for the sound conduct of the profession, by ensuring that an attorney has certain qualifications and by allowing those with certain rights to work as an attorney/lawyer.
Power of Foreign Law Offices to Practice Attorneyship in Turkey
As a rule, in order to act as an attorney/lawyer in Turkey, one should be graduated from the faculty of law, do his apprenticeship and then get registered in one of the bar associations located within any province. In line with the Turkish legislation, those who act as attorneys by exercising the powers exclusive to attorneys although not authorized to act as such, are punished with imprisonment and pecuniary penalties. However, foreign law offices are allowed to practice attorneyship in certain fields. In accordance with the Attorneyship Law, foreign law offices may only operate in Turkey by providing consultancy services in the fields of foreign laws and international law. Lawyers working at foreign law offices may only render consultancy services in the field of foreign laws and international law despite being citizens of the Republic of Turkey. An attorney/lawyer registered to a bar association, is not allowed to offer attorneyship services in the fields except for those mentioned herein above after being employed in a foreign law office.
It is observed that, in practice, foreign law offices offer attorneyship services beyond consultancy services and that they particularly act as attorneys to settle the legal problems encountered by the companies in the field. Foreign law offices render these services indirectly via self-employed lawyers who are registered to bar associations.
Can Only Criminal Lawyers be Employed at International Courts?
Criminal lawyer is a title colloquially given to the attorney who provides legal assistance to defendant or plaintiff during legal proceedings. The legal proceedings must be of criminal nature in order to request legal assistance from a criminal lawyer.
International courts function within the framework of the aims laid down through their conventions of establishment. Thus, whether a criminal lawyer or another lawyer working in another field of law should defend the case, must be decided in accordance with the aim of the court and its field of jurisdiction. For instance, since the International Criminal Court is established to carry out criminal jurisdiction, it will be appropriate to be represented through a criminal lawyer. However, for the cases heard before International Court of Justice, it is better to prefer international legal experts instead of serious crimes lawyer. It may be beneficial to include a criminal lawyer in the defence team for these kinds of cases. On the other hand, during the cases heard at International Court of Justice which is in charge of disputes among states, legal experts who have a command of technical aspects of international law will be able to make a more effective defence in comparison to the criminal lawyers providing legal assistance.
Lawyers'/Attorneys’ Power to Act at the European Court of Human Rights (ECtHR)
The European Court of Human Rights (ECtHR) which is located in France is a supra-national court functioning under Council of Europe. All 47 member states of the Council of Europe have recognised the jurisdiction of the ECtHR. Upon the application of anyone, being either a citizen of a contracting member state or not, the Court examines whether there is a violation of the rights recognised through European Convention of Human Rights.
The applicant may both lodge his application to ECtHR via a lawyer and participate in the hearings with his lawyer. It is up to the applicant to decide on the lawyer from whom he/she will receive legal assistance, being located in his own country or another. For instance, the applicant may prefer to be represented by a lawyer from Turkey although he/she is a German citizen. Countries cannot insert restrictive provisions in their legislation, regarding the attorneyship at ECtHR.
Lawyers'/Attorneys’ Power to Act at International Criminal Court
International Criminal Court (ICC) is located in the Hague in the Netherlands. Treaty for the establishment of ICC was adopted by 139 states, and 123 states have ratified it up to date. Lawyers are considered as a significant pillar of the Court since the Court internationally prosecutes the serious crimes such as genocide, crimes against humanity, war crimes and aggression.
Rome Statute which is the treaty establishing the International Criminal Court, stipulates that the accused is entitled to receive legal assistance of a lawyer during the proceedings. In accordance with the Article 67 of Rome Statute, the accused have the right to defend himself/herself through the lawyer he/she chooses. If the accused lacks sufficient means to pay for a legal assistance or he/she does not have any access to a lawyer, he/she may ask the court to assign one.
Lawyers'/Attorneys’ Power to Act at International Court of Justice
The International Court of Justice is an international court functioning as the principal judicial organ of the United Nations, and its seat is located at The Hague in the Netherlands. The International Court of Justice is only in charge of settling the legal disputes among the states; it is not authorised to settle the disputes between persons and the states or the disputes between the persons. During the proceedings in these courts, the acts of lawyers are of vital importance for the states. This is due to the fact that the lawyer represents the state which is a party to the dispute. The function of the lawyer during this process may be determinant in terms of presenting the issue in legal aspects since the legal disputes are carried out by addressing rather specific issues.
Why Lawyers are Required at International Arena?
Issues emerging in an international field may sometimes be concluded so as to affect the whole community. Legal proceedings carried out at international courts may lead to political conclusions. Therefore, lawyers have assumed significant roles during these proceedings particularly for the last half century.
The functions of the lawyers at international and supranational courts increase gradually. Human relations spreading to international arena and complex relations of states make it compulsory to resort to the assistance of a lawyer. Attorneyship, like other professions, becomes both more and more specialised and professional in order to respond to the demands accordingly.
Havana Principles and the Attorney/Lawyer
Havana Principles were adopted during the UN Conference held in Havana in 1990. Havana principles include the professional principles of attorneyship that may be applied to as a safeguard mechanism while performing this profession. Laying down the universal standards of attorneyship, Havana Principles provide for certain obligations to the public authorities to safeguard the independence of lawyers.
Right to Access to Lawyer/Attorney and Legal Services
First section of Havana Principles refers to access to lawyers and legal services. It is enshrined in this section as a principle that all persons are equally entitled to call upon the assistance of a lawyer. On one hand, the governments are made liable to ensure that access to lawyers are provided for all persons, on the other, professional associations are made liable to inform the public about their rights to access to lawyers. Governments and professional associations are responsible for working collectively to ensure that all persons exercise the right to access to lawyers. In the case of poor and disadvantaged persons, governments and professional associations should be organised so as to enable them benefit from this right.
It is underlined in second section of Havana Principles that governments are obliged to provide all persons arrested or detained with all opportunities to have a lawyer of their own choice or to communicate with their lawyers.
Qualifications and Training of the Attorneys/Lawyers
Third section of Havana Principles regulates the training of attorneys. The lawyer may efficiently provide legal assistance via his legal knowledge and qualifications. Havana Principles make both professional associations and governments liable to take all measures so as to ensure that lawyers are appropriately trained and educated. During the professional training, it should be ensured that the lawyer is aware of human rights and fundamental freedoms recognised by international law. Moreover, it should be ensured that there is no discrimination against a person with respect to entry into practice within the legal profession.
Duties and Responsibilities of an Attorney/Lawyer
Third section of Havana Principles also explains the duties and responsibilities of an attorney. Lawyers are obliged to maintain the honour and dignity of their profession at all times. Lawyers should always inform their clients transparently, take legal actions to protect the rights of the clients and respect the interests of their clients. Lawyers should assist the rights of their clients before administrative, legal and judicial bodies.
Guarantees for the Professional Activities of the Lawyers
It is stipulated in Havana Principles that governments are liable to provide for certain guarantees for lawyers while they are performing their profession (Art.16-22). Lawyers should perform their profession without any intimidation, hindrance and harassment. Governments should take all measures to provide that the lawyers do not suffer any intimidation or hindrance for any case filed.
When their security is threatened, the lawyers and their families should adequately be safeguarded by the governments in accordance with their existing situation.
Lawyers should freely make statements before administrative, judicial or other bodies. They enjoy civil and penal immunity for their allegations and expressions in their professional appearances before these bodies. This right conferred on the lawyers is called “functional immunity for the defence”.
Istanbul - Turkey Lawyer Baran Dogan