NEW YORK – The New York City Bar Association, the largest Bar Association in the United States, released a statement on July 20 concerning the continued retaliation by the Turkish government against lawyers, judges and bar associations in Turkey.
The statement follows:
The New York City Bar Association condemns the Turkish government’s continued attacks on lawyers, judges, and bar associations in Turkey as the world marks the fourth anniversary of the 2016 attempted coup. Since the June 11, 2013 arrest of lawyers at Çaglayan Courthouse in Istanbul during the period of the Gezi Park protests, the Turkish government has escalated its attacks on lawyers and judges as well as its interference with the judicial process.
The government was significantly emboldened by the failed coup d’état of July 15, 2016, and has intensified its efforts to undermine the independence of the judiciary and retaliate against lawyers and judges whom it perceives to be opposed to its political agenda and policies. The anniversary of the failed 2016 coup affords Turkey an opportunity to assess its commitments to its judiciary, its people, the rule of law, and the international community.
The New York City Bar Association, international organizations and non-governmental organizations, and many other members of the international community and human rights defenders across the globe have catalogued numerous instances of harassment, attacks, arrests and imprisonment of lawyers and judges in Turkey. Since the 2016 failed coup, and the overbroad exercise of the resultant emergency powers granted to the Turkish government, countless lawyers and judges have been disbarred, arrested, prosecuted and imprisoned, often due to vague and unconfirmed connections with the Gülenist movement.
As of February 2020, the Arrested Lawyers Initiative reported that, since 2016, the Turkish government has prosecuted more than 1,500 lawyers and arrested another 605 lawyers. Moreover, 345 lawyers were sentenced to a collective 2,158 years in prison on the grounds of membership in an armed terrorism organization or for spreading terrorist propaganda. Fourteen of these lawyers are presidents or former presidents of their respective regional bar associations. All 345 lawyers were sentenced on terror-linked offenses. Reports of the United States Department of State confirm these and other apparent abuses.
Police and prosecutors have targeted lawyers for criminal investigation and arbitrary detention, frequently associating defense lawyers with their clients’ alleged crimes. Courts and judges have been intimidated into sentencing lawyers to lengthy prison terms on charges of terrorism and other unproven crimes. In contravention of Article 61 of the Code of Lawyers, some 600 lawyers have been detained through misinterpretation and abuse of Article 314 of the Turkish Penal Code. The government prosecuted more than 1,500 lawyers without the ex ante authorization required from the Minister of Justice.
Turkey has repeatedly failed to implement the recommendations of the U.N. Special Rapporteur on the Independence of Judges and Lawyers. In 2014, the U.N. Special Rapporteur issued a general warning concerning instances where “lawyers have been sanctioned because of political activities, advocacy work, confusion between the lawyer’s cause and his/her client’s cause, and involvement in the legal representation of clients in sensitive cases.”
She further called on governments, like Turkey, to refrain from using criminal conviction or disbarment as a tool for silencing attorneys, preventing them from engaging politically, or obstructing their representation of their clients.
Turkey’s actions have been in contravention of these principles and of others advanced by the United Nations. In 2017, the Office of the U.N. High Commissioner on Human Rights observed a “pattern of persecution” of lawyers in Turkey representing individuals accused of terrorism offenses, such as being “associated with their clients' cause (or alleged cause)” in the course of their professional duties and, subsequently, being charged with the same crime as their clients. State anti-terror laws—introduced during the State of Emergency declared in 2016 and subsequently incorporated into Turkey’s Criminal Procedure Code—continue to curtail legal protections of lawyers and their clients and render a robust defense of clients accused of terrorism charges nearly impossible.
A. The Turkish Government’s Recent Criminal Investigations of Bar Associations
In a recent incident, the Turkish government commenced criminal investigations of bar associations that criticized statements made by Turkey’s President of the Directorate of Religious Affairs, Professor Dr. Ali Erbas, who had spoken out against Turkey’s LGBTQIA+ community. On April 24, 2020, while delivering his Friday sermon (khutbah), Dr. Erbas denounced LGBTQIA+ people and people living with HIV, insinuating that these groups are to blame for diseases, including the COVID-19 outbreak. President Recep Tayyip Erdogan’s spokesperson immediately voiced support for Dr. Erbas and praised his homophobic statements. Hate speech, like that of Dr. Erbas, is illegal in Turkey. In response to his sermon, the Ankara, Diyarbakir, Istanbul, and Izmir Bar Associations joined a criminal complaint filed by the Ankara Branch of the Human Rights Association (IHD) on April 27, 2020, condemning Dr. Erbas for coopting a religious space and using his sermon to incite hatred towards and discrimination against the LGBTQIA+ minority. The complaint alleged Erbas’s remarks met the elements of “hate speech,” and constituted a provocation to hatred and hostility in violation of Turkish Penal Code Article 216/2. The next day, the Ankara Public Prosecutor's Office, in apparent retaliation, opened a criminal investigation against the Ankara Bar Association on the grounds of "insulting religious values that a part of the society has embraced,” and later extended the investigation to include the Bar Association of Diyarbakir on the same grounds. Shortly thereafter, President Erdogan commented, “An attack on [the President of the Directorate of Religious Affairs] is an attack on the state.” This crackdown on some of Turkey’s largest bar associations is troubling, given that the Ankara and Diyarbakir Bar Associations were acting in accordance with both their own bylaws and with Turkey’s Attorneyship Law, which provides that the President of a bar association is required to defend the “dictates of the law and profession. . . in matters involving the honor and independence of the profession.”29 In bringing this criminal complaint, Turkish Bar Association Presidents were upholding their duty to defend the dictates of the law by ensuring its appropriate and adequate enforcement. Moreover, Turkey ratified the Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence and the European Convention on Human Rights, both of which prohibit discrimination. Furthermore, homosexuality has been legal under Turkish domestic law since the country’s founding in 1923.
Turkey is also a signatory to the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR) which prohibit discrimination. The Turkish Constitution specifies that international treaties concerning fundamental rights, once ratified and given effect by the Grand National Assembly of Turkey, shall be given priority over domestic law. Turkish courts and the Executive are bound to uphold and give effect to the provisions of these treaties. For these reasons, the government’s crackdown on Turkey’s largest bar associations—which were merely carrying out their mandate to defend the law— appears to be an abuse of power.
B. The Turkish Government’s Introduction of Legislation Dilutes the Power of Turkey’s Largest Municipal Bar Associations – One of the Government’s Harshest Critics Almost immediately after the Turkish government launched its retaliatory criminal investigations of the bar associations, in May 2020, President Erdogan announced his government’s intention to interfere with Turkish bar associations’ ability to hold elections for their leadership and governance, stating that he would seek amendments to Turkey’s “Attorneyship” Law—with the goal of altering the process of bar association elections. Erdogan’s Justice and Development Party (AKP) quickly introduced a bill into Parliament. The Turkish Parliament’s Justice Commission approved the bill on July 5, 2020, and it was passed by the full Parliament on July 11, 2020. Fifty bar associations across Turkey immediately expressed deep concern over the proposed legislative changes. Representatives of 29 provincial bar associations entered Ankara on June 22nd and 23rd to protest the draft Bill and the Government’s interference with lawyers and judges. Numerous international bar associations and human rights organizations joined in opposition to the proposed bill. Turkey’s main opposition political parties also opposed the AKP’s draft bill. Ultimately, all 80 existing bar associations in Turkey opposed the legislation. To date, Turkey has had a single national-level bar association—the Union of Turkish Bar Associations (TBB)—representing the 79 “provincial” bar associations located in provinces and major cities. Membership in the TBB is compulsory for all practicing attorneys in Turkey; and the larger provincial bar associations, located in Turkey’s major cities, have proved to be one of the last vestiges of a free civil society in Turkey since the failed 2016 coup. The new law changes the election system of the provincial bar associations via proportional representation and opens the way to the establishment of multiple new bar associations in Turkey’s major provinces and cities, thereby effectively decreasing the influence of the largest existing associations, which have been openly critical of the ruling government’s legal transgressions. “In the provinces with bar associations that have more than 5,000 members, an additional association will be able to be formed if 2,000 members come together and decide to do so. This mainly affects cities such as Istanbul, Izmir, and Ankara, due to their large numbers of lawyers. For instance, in Istanbul, there could be five different bar associations at the same time under the new law.” The new law, moreover, incentivizes the breakup of the bar associations that were large enough to effectively voice concerns of their constituents by disproportionately diminishing the representation of each attorney in a larger bar association. The breakup of larger associations undermines their ability to effectively give voice to the objections of a unified constituency to the administration’s actions and unnecessarily splits oversight of the profession. The new law, especially in light of the December 2020 election of a new President to the TBB, will effectively allow Turkey’s president to influence who heads the national TBB, dilute the influence of Turkey’s largest provincial and municipal bar associations, and impair the ability of bar associations to protect the rights of minorities and monitor government compliance with laws. The dilution of attorney representation in Turkey’s most populous cities calls into question the legitimacy and representative capacity of any newly-elected president of the TBB as well as threatens its continued existence.
The New York City Bar Association urges the Turkish government to immediately cease and desist its persecution of lawyers and judges, and its interference with the activities and governance of Turkish bar associations. The Association urges the President of Turkey to respect Turkey’s international treaty obligations and the U.N. Basic Principles on the Role of Lawyers, including ensuring that lawyers are able to effectively represent and gain access to their clients unimpeded by threats, retaliation and intimidation. The Association and its membership stand in solidarity with our Turkish colleagues and will continue to closely monitor the Turkish government’s treatment of lawyers, bar associations and judges.
About the Association The mission of the New York City Bar Association, which was founded in 1870 and has 24,000 members, is to equip and mobilize a diverse legal profession to practice with excellence, promote reform of the law, and uphold the rule of law and access to justice in support of a fair society and the public interest in our community, our nation, and throughout the world. www.nycbar.org.