The report, titled The Crackdown, reveals that more than 1,600 lawyers have been arrested and prosecuted while 615 lawyers have been remanded to pretrial detention. Subsequently, 474 lawyers have been sentenced to a total of 2,966 years in prison on the grounds of membership of an armed terrorism organization (Art. 314 of Penal Code) or of spreading terrorist propaganda.
The campaign against the legal profession has targeted 15 provincial bar association presidents including the former presidents of provincial bar associations of Diyarbakir, Konya, Trabzon, Manisa and Siirt.
The persecuted lawyers are being targeted under the notorious anti-terrorism legislation of Turkey, which the European Court of Human Rights found unforeseeable and lacking quality of law.
In the report, the Arrested Lawyers Initiative underlines the opinion of the Commissioner for Human Right of the Council of Europe that: “Laws with an overly broad definition of terrorism and membership of a criminal organisation and the judiciary’s tendency to stretch them even further is not a new problem in Turkey, as attested in numerous judgments of the European Court of Human Rights. … This problem has reached unprecedented levels in recent times. Prosecutors, and increasingly also the courts, consider lawful and peaceful acts and statements protected under the European Convention on Human Rights as proof of criminal activity … what is used as evidence is sometimes so inconsistent and arbitrary … that it has become virtually impossible to foresee in good-faith the legal consequences of actions … this uncertainty discourages legitimate dissent and criticism.”
As part of the crackdown legal safeguards for lawyers such as the right to a fair trial, the principle that lawyers cannot be detained and remanded for pretrial detention or that a lawyer can be prosecuted only if the Minister of Justice gives authorization have all been ignored. Hundreds have been remanded in pretrial detention through a misinterpretation of in flagrante delicto and the abuse of Article 314 of the Penal Code and many more have been prosecuted without the ex-ante authorization that should be given by the Minister of Justice for prosecution.
According to the report, lawyers have particularly been targeted due to identities or affinities of their clients. The United Nations High Commissioner for Human Rights reports that the OHCHR has observed a concerning pattern where lawyers representing individuals who are accused of terrorism offences, are being associated with their client’s real or imputed political views in the discharge of their professional duties; and are consequently prosecuted for the same or other related offences of which their clients are being accused.
The independence of bar associations, which is regarded as a key indicator of human rights infringements and the erosion of the rule of law, have also been diminished through the enactment of laws that seek to reduce their influence, particularly in larger cities. In addition, criminal investigations were launched against the executives of provincial bar associations of Ankara, İzmir, Diyarbakir, İstanbul and Şanlıurfa. For example, in June 2021, the Minister of Justice gave an authorization of prosecution against the chair of Istanbul Bar Association Adv. Mehmet Durakoğlu and four other executives of the bar over their critical comments on a statement of Turkey’s top religious authority Ali Erbaş. Board members of Ankara Bar Association are on trial for the same reason.
In conclusion, the report finds that the Turkish government’s ongoing crackdown breaches the right to liberty and security and freedom of association of lawyers, abolishes safeguards against torture and diminishes the independence of Bar Associations.
The report makes a number of recommendations including a call on the Turkish government to amend the recently enacted anti-terror legislation, to reassert the independence of the judiciary and Bar Associations and allow lawyers to effectively perform their professional duties.
In addition, the report calls for an “immediate end to the arbitrary and systematic arrest, prosecution and detention of lawyers, to drop the charges against those arbitrarily accused, and release those who are detained, unless credible evidence is presented in proceedings that comply with international fair trial standards”.
Quotes & Comments
Mr. Stefan von Raumer, the Chair of the Human Rights Committee of the Council of Bars and Law Societies of Europe (CCBE) stated: “The CCBE, as the voice of European legal profession, is very concerned about the continued derogation of the essential rights of lawyers and the lack of respect of their independence in Turkey over the past years. We have seen a systematic and continuous violation, in hundreds of cases, of several of the UN Basic Principles on the Role of Lawyers, including Principle 18 which clearly states that lawyers should not be identified with their clients or their clients’ cause in the exercise of their functions.”
Dr. Sylvia Ruge, CEO of the German Bar Association (Deutscher Anwaltverein – DAV) stated: “The DAV wants to express its serious concern over the ongoing intimidation of lawyers in Turkey. There is no doubt that in Turkey actually not all lawyers are able to carry out their professional duties without fear of reprisal or harassment. This is a great danger for the indispensable independence of the administration of justice and the rule of law.“
The Law Society of South Africa [LSSA] said: The LSSA as its core is directed by the principle the Rule of Law. Lawyers must be allowed to represent their clients without fear or favour in a Court of Independent Jurists. In Turkey, the LSSA does not believe the above two principles are respected, as Lawyers and Jurists are nor free to implement these basic principles
Catherine Morris, Executive Director of Lawyers’ Rights Watch Canada stated: “The systematic and widespread persecution of human rights lawyers in Turkey since 2016 is increasingly worrying. Turkish authorities have been routinely arresting and jailing human rights lawyers on entirely illegitimate charges. These unfair prosecutions and trials violate the most fundamental principles of human rights. It is alarming that Turkey has been defying the European Court of Human Rights by refusing to comply with its rulings.”
Eleonora Mongelli, Vice President of the Italian Federation for Human Rights (FIDU): “After Turkey’s coup attempt, the Turkish government started an abusive mass prosecution of lawyers across the country. As stated in this important report, hundreds of lawyers have been detained, prosecuted and convicted due to alleged terror-linked offenses. These people are suffering inhumane treatment in overcrowded prisons; they are facing indefinite preventive detention on the basis of vague accusations, and heavy sentences issued after unfair trials, just for doing their job. An example is given by the case of Ebru Timtik, a Turkish lawyer who died in August 2020, after 238 days on hunger strike, demanding a fair trial. The Italian Federation for Human Rights urges the Turkish government to respect universal human rights and to bring its criminal law in line with the standards specified by the European Convention on Human Rights, as well as to safeguard Council of Europe standards. Ensuring that lawyers can effectively perform their professional functions is an essential element of the rule of law.”
Stuart Russell*: “ This major report confirms that the Turkish tragedy continues unabated. The careers of mindboggling numbers of lawyers have been obliterated, along with the end of the rule of law, human rights and democracy. The international community, especially the world’s lawyers, must step up pressure on the Turkish authorities. We demand an immediate end to the war on our colleagues!“”
*Co-chair, Monitoring Committee on Attacks on Lawyers International Association of People’s Lawyers, human rights lawyer, law professor & (ret.) administrative judge.