New York City Bar Association Condemns the Continued Retaliation by the Turkish Government against Lawyers and Judges and Bar Associations in Turkey

The New York City Bar Association¹ 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 Çağlayan Courthouse in Istanbul during the period of the Gezi Park protests,² 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, 2016,³ 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.⁴

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.⁵

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.⁶ 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.⁷ 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.⁸ Fourteen of these lawyers are presidents or former presidents of their respective regional bar associations.⁹ All 345 lawyers were sentenced on terror-linked offenses.¹⁰ Reports of the United States Department of State confirm these and other apparent abuses.¹¹

Police and prosecutors have targeted lawyers for criminal investigation and arbitrary detention, frequently associating defense lawyers with their clients’ alleged crimes.¹² Courts and judges have been intimidated into sentencing lawyers to lengthy prison terms on charges of terrorism and other unproven crimes.¹³ 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.¹⁴

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.” ¹⁵ 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.¹⁶ 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.¹⁷

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 ¹⁸ and render a robust defense of clients accused of terrorism charges nearly impossible.¹⁹

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 Erbaş, who had spoken out against Turkey’s LGBTQIA+ community.²⁰

On April 24, 2020, while delivering his Friday sermon (khutbah), Dr. Erbaş denounced LGBTQIA+ people and people living with HIV, insinuating that these groups are to blame for diseases, including the COVID-19 outbreak.²¹President Recep Tayyip Erdoğan’s spokesperson immediately voiced support for Dr. Erbaş and praised his homophobic statements.²²

Hate speech, like that of Dr. Erbaş, is illegal in Turkey.²³ 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 co- opting a religious space and using his sermon to incite hatred towards and discrimination against the LGBTQIA+ minority.²⁴    The complaint alleged Erbaş’s remarks met the elements of “hate speech,” and constituted a provocation to hatred and hostility in violation of Turkish Penal Code Article 216/2.²⁵

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,”²⁶ and later extended the investigation to include the Bar Association of Diyarbakir on the same grounds. Shortly thereafter, President Erdoğan commented, “An attack on [the President of the Directorate of Religious Affairs] is an attack on the state.”²⁷

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,²⁸ 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 Violence³⁰ and the European Convention on Human Rights, both of which prohibit discrimination.³¹ Furthermore, homosexuality has been legal under Turkish domestic law since the country’s founding in 1923.³²

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.³³ 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.³⁴ 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 Erdoğan 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” Law³⁵—with the goal of altering the process of bar association elections.³⁶ Erdoğan’s Justice and Development Party (AKP) quickly introduced a bill into Parliament. The Turkish Parliament’s Justice Commission approved the bill on July 5, 2020,³⁷ and it was passed by the full Parliament on July 11, 2020.³⁸

Fifty bar associations across Turkey immediately expressed deep concern over the proposed legislative changes.³⁹ 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.⁴⁰ Numerous international bar associations and human rights organizations joined in opposition to the proposed bill.⁴¹ Turkey’s main opposition political parties also opposed the AKP’s draft bill.⁴² Ultimately, all 80 existing bar associations in Turkey opposed the legislation.⁴³

To date, Turkey has had a single national-level bar association—the Union of Turkish Bar Associations⁴⁴ (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.⁴⁵ “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.”⁴⁶   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.⁴⁷ 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,⁴⁸ 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.⁴⁹   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.

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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,⁵⁰ 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

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1 Since its founding in 1870, the New York City Bar Association has fiercely advocated for the independence of lawyers and judges.  The New York City Bar Association is the largest municipal bar association in the world with over 25,000 members from New York and across the nation, and from over 50 countries.

2 Turkey violence intensifies as police try to clear Taksim Square – as it happened, THE GUARDIAN (June 11, 2013 11:24    p.m.),    https://www.theguardian.com/world/2013/jun/11/turkey-police-move-into-taksim-square.

3 “Erdoğan instigated a crackdown on political opponents and critics following the coup attempt and thousands of people…were arrested and imprisoned in the aftermath. Two years on, Erdoğan remains in charge and is more powerful than ever.” Turkey Lifts State of Emergency, but nothing much has changed analysts warn, CNBC (July 19,    2018),    https://www.cnbc.com/2018/07/19/turkey-lifts-state-of-emergency-but-nothing-much-has-changed-   analysts.html.

4 See, e.g., Human Rights Watch, Turkey: State of Emergency Ends, but Not Repression: New System Expands President’s Power (January 17, 2019), available at https://www.hrw.org/news/2019/01/17/turkey-state-emergency-   ends-not-repression (hereinafter, “HRW: State Emergency Ends”).

5 See, e.g., Mass Prosecution of Lawyers in Turkey: Unjust Arrests & Convictions, The Arrested Lawyers Initiative (Feb. 2020), https://arrestedlawyers.files.wordpress.com/2020/04/report_2020_february.pdf (hereinafter, “Arrested Lawyers Initiative: Mass Prosecution”); Erosion of Judicial Independence and Attacks on Lawyers in Turkey, INT’L ASS’N (Nov. 21, 2019), https://www.ibanet.org/Article/NewDetail.aspx?ArticleUid=70009cfe-707b-448f-86eb- c6a461a4cfdb; Joint Stakeholder Submission to the UN Human Rights Council’s Universal Periodic Review – TURKEY, International Coalition of Legal Organisations 35th Session, SOC’Y OF ENG. AND WALES (Jul. 18, 2019), available at https://communities.lawsociety.org.uk/download?ac=90006 (“As of April 2019, 4260 judges and prosecutors had been dismissed. Many judges and prosecutors have also been arrested and are in pre-trial detention or serving prison sentences after conviction. The number of convicted judges and prosecutors on terrorism charges reached 634 as of 26 April 2019.”); Lawyers on Trial: Abusive Prosecutions and Erosion of Fair Trial Rights in Turkey, HUM. RTS. WATCH (Apr. 10, 2019), available at https://www.hrw.org/report/2019/04/10/lawyers-  trial/abusive-prosecutions-and-erosion-fair-trial-rights-turkey (hereinafter, “HRW: Lawyers on Trial”).

6 The Gülen movement (Turkish: Gülen hareketi), referred to as FETO by the current Government of Turkey and as Hizmet by its participants, is a transnational socially-conscious Islamic movement with political overtones, inspired by the writings and preachings of Fethullah Gülen, a Turkish Islamic preacher who has lived in the United States since 1999. See Wikipedia, “Gülen Movement,” available at: https://en.wikipedia.org/wiki/Gülen_movement (last accessed, July 13, 2020).

7    Arrested Lawyers Initiative: Mass Prosecution, supra note 5 at 1.

8 Id.

9 Id. at 2.

10 Id. at 3.

11 “Since the 2016 coup attempt, [Turkish] authorities have dismissed or suspended more than 45,000 police and military personnel and more than 130,000 civil servants, dismissed one-third of the judiciary, arrested or imprisoned more than 80,000 citizens, and closed more than 1,500 nongovernmental organizations (NGOs) on terrorism-related grounds, primarily for alleged ties to the movement of cleric Fethullah Gulen, whom the government accuses of masterminding the coup attempt, and designated by the government as the leader of the ‘Fethullah Terrorist Organization’ (‘FETO’).” 2019 Country Reports on Human Rights Practices: Turkey, at Executive Summary (U.S. Department of State, March 11, 2020), https://www.state.gov/reports/2019-country-reports-on-human-rights-  practices/turkey/.

12 Id. at 4, HRW: Lawyers on Trial, supra note 5.

13 Arrested Lawyers Initiative: Mass Prosecution, supra note 5 at 5-6.

14 Id. at 5-6.

15 U.N. General Assembly, Human Rights Council, Report of the Special Rapporteur on the independence of judges and lawyers, Gabriela Knaul 13 (Apr. 28, 2014), available at https://digitallibrary.un.org/record/771914?ln=en.

16 Id.

17 U.N. Office of the United Nations High Commissioner for Human Rights, January -December 2017, Report on the impact of the state of emergency on human rights in Turkey, including an update on the South-East 14 (March 2018), available at, https://www.ohchr.org/Documents/Countries/TR/2018-03-  19_Second_OHCHR_Turkey_Report.pdf.

18 The absence of legal representation is particularly damaging given that up seventeen percent of Turkey’s prison population (44,930 individuals out of the total prison population of 260,144) consisted of inmates either convicted of or on trial for terrorism offenses according to Human Rights Watch’s analysis of a report by the Turkish Ministry of Justice. HRW: Lawyers on Trial.

19 Laws instituted during the state of emergency have impeded attorneys’ ability to appropriately represent clients including: removing privilege protections for communications between attorneys and clients (Law on the Execution of Penalties and Security Measures (no.5275) article 59/5); barring attorneys from representing terrorism-based offenses for up to two years when the attorneys, themselves, face criminal investigations for prosecution (under Criminal Procedure Code, CPC, article 151/3-4); preventing attorneys from accessing investigatory files in terrorism-related charges; permitting prosecutors to authorize police to restrict lawyers from meeting with clients for the first 24 hours of their police custody (CPC article 154/2); limiting the number of lawyers permitted to represent a client in court in a terrorism case to just three (CPC article 149/2); granting courts the power to carry out hearings and issue verdicts without lawyers present if the court deems they have not provided reasons for their absence (CPC articles 188/1 and 216/3); granting courts the power to reject lawyers requests to hear witnesses if the court rules the aim is to prolong the trial (CPC article 178), permitting courts to hear some protected witnesses remotely, altering their voices or screening their faces, rather than bringing them to court hearings where they could be cross- questioned in person (CPC article 139/3); and allowing courts to prohibit incarcerated defendants from attending their court hearings in person and, instead, having them join remotely by video linkup (known in Turkey as Ses ve Görüntü Bilişim Sistemi, SEGBIS) to the prison (CPC article 196/4). A more in-depth analysis of the regulations prohibiting effective practice of law is available in HRW: Lawyers on Trial.

20 Bar Associations of Ankara and Diyarbakir Under Investigation, LAWYERS FOR LAWYERS (Apr. 30, 2020), available at    https://lawyersforlawyers.org/en/bar-associations-of-ankara-and-diyarbakir-under-investigation-for-  their-statements-regarding-top-mufti/.

21 Id.

22See @ikalin1, TWITTER (Apr. 26, 2020), https://twitter.com/ikalin1/status/1254556483892764676; Presidential spokesperson, using the hashtag, “Ali Erbaş is not alone,” tweeted that Erbaş was giving voice to the “Divine Judgment,” making the administration’s position clear at an early stage. Turkish ruling party, lawyers clash over cleric comments on homosexuality, REUTERS (Apr. 27, 2020), available at https://www.reuters.com/article/us-  turkey-rights-homosexuality/turkish-ruling-party-lawyers-clash-over-cleric-comments-on-homosexuality- idUSKCN2291LE.

23 Penal Code Art. 216. (Turk.)

24 Joint Statement: End hate speech and targeted attacks against LGBTQIA+ people in Turkey, INTERNATIONAL LESBIAN, GAY, BISEXUAL, TRANS AND INTERSEX ASSOCIATION (May 8, 2020), available at https://ilga-

europe.org/resources/news/latest-news/joint-statement-end-hate-speech-and-targeted-attacks-against-lgbti- people?fbclid=IwAR3y-rbfUkl6vmGuaJUqb3jStBXtVKamkVZ869vxib4iJU9guGsE9cYU5RM#_ftn7.

33 International Covenant on Civil and Political Rights, March 23, 1976, available at  https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx.

34 Const. Art. 90 (Turk.) (stating, as follows, “In the case of a conflict between international agreements, duly put into effect, concerning fundamental rights and freedoms and the laws due to differences in provisions on the same matter, the provisions of international agreements shall prevail.”).

35 1136 Attorneyship Law. (Turk.), supra note 27.

36 Turkish bar associations unite against government interference, Arab News (May 12, 2020), available at  https://www.arabnews.com/node/1673261/middle-east (last accessed June 23, 2020).

37 See “Turkish Parliament’s Justice Commission passes bill on bar associations,” The Daily Sabah, available at:  https://www.dailysabah.com/politics/legislation/turkish-parliaments-justice-commission-passes-bill-on-bar-  associations (last accessed July 8th, 2020).

38 See “Turkish parliament passes disputed bar associations law,” Reuters (July 11th, 2020) available at:  https://www.reuters.com/article/us-turkey-lawyers/turkish-parliament-passes-disputed-bar-associations-law-  idUSKCN24C08L (last accessed July 12th, 2020); see also “Turkey’s Parliament passes contentious bar associations bill”, The Daily Sabah (July 11th), available at: https://www.dailysabah.com/politics/legislation/turkeys-parliament-  passes-contentious-bar-associations-bill (last accessed July 12th, 2020).

39 Turkish bar associations unite against government interference, Arab News (May 12, 2020), available at  https://www.arabnews.com/node/1673261/middle-east (last accessed June 23, 2020).

40 See Turkey Allows Top Lawyers to March Ending Standoff, San Diego Union-Tribune (June 23, 2020), available at  https://www.sandiegouniontribune.com/news/nation-world/story/2020-06-23/turkey-allows-top-lawyers-to-  march-ending-standoff; Police Block Turkish Lawyers Marching to Ankara to Protest Gov’t Meddling in Bar Associations, STOCKHOLM CENTER FOR FREEDOM (June 22, 2020), available at https://stockholmcf.org/police-block-   turkish-lawyers-marching-to-ankara-to-protest-govt-meddling-in-bar-associations/; Bar Associations say their  March to Ankara is ‘Against Darkness’, DUVAR ENGLISH (June 21, 2020), available at  https://www.duvarenglish.com/politics/2020/06/21/bar-associations-say-their-march-to-ankara-is-against-darkness/; “Heads of 29 provincial bar associations march to Ankara over yet-undefined proposal”, The Daily Sabah (June 22nd, 2020) available at: https://www.dailysabah.com/politics/legislation/heads-of-29provincial-bar-associations-  march-to-ankara-over-yet-undefined-proposal (last accessed 14 July 2020).

41  See e.g., “Turkey: Independence, integrity and freedom of expression of the legal profession at stake,” The Council of Bars and Law Societies (the “CCBE”)(June 29th, 2020)  https://www.ccbe.eu/fileadmin/speciality_distribution/public/documents/Pressreleases/2020/EN_HR_20200629_PR

_0320.pdf

42 See “AK Party to visit opposition parties to discuss bar association regulation”, The Daily Sabah (June 24th, 2020), available    at    https://www.dailysabah.com/politics/legislation/ak-party-to-visit-opposition-parties-to-discuss-bar-  association-regulation (last accessed June 29th, 2020).

43 See “Turkey’s Parliament passes contentious bar associations bill”, The Daily Sabah (July 11, 2020), available at https://www.dailysabah.com/politics/legislation/turkeys-parliament-passes-contentious-bar-associations-bill.

44 The Türkiye Barolar Birliği (TBB) was established in 1969 and is an organization for Turkish lawyers, uniting over 70,000 lawyers in 79 provincial-level Turkish bar associations. See, https://www.barobirlik.org.tr/en/tbb-  history, (last accessed on June 29th, 2020).

45 Turkish bar associations unite against government interference, supra note 36.

46 See “Heads of 29 provincial bar associations march to Ankara over yet-undefined proposal,” The Daily Sabah (June 22nd, 2020), available at: https://www.dailysabah.com/politics/legislation/heads-of-29provincial-bar-  associations-march-to-ankara-over-yet-undefined-proposal (last accessed June 29, 2020).

47 E.g., The Reform of Bar Associations in Turkey: Questions and Answers, HUM. RTS. WATCH (July 7, 2020) (“Under the new law, all bars will be allowed to send four delegates to the union, and then one delegate more for every 5000 members. As a result, the smallest bars will gain much greater power than they currently have and together will exercise greater influence over the activities of the union. For example, a provincial bar association with less than 100 lawyers…will be able to send 4 delegates, where it used to be able to send 3, but a bar association…with over 9500 lawyers, which used to be able to send 35, will now be able to send just 5 delegates. A delegate from [the smaller association] would, therefore, represent less than 25 lawyers, while a delegate from [the larger association] would represent approximately 1900.”), available at  https://www.hrw.org/news/2020/07/07/reform-bar-associations-turkey-questions-and-answers.

48 Id.

49 See “Heads of 29 provincial bar associations march to Ankara over yet-undefined proposal, supra note 46.

50 Basic Principles on the Role of Lawyers, Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba (27 August to 7 September 1990), available at  https://www.ohchr.org/EN/ProfessionalInterest/Pages/RoleOfLawyers.aspx.