April 10, 2019 – Lawyers on Trial – Abusive Prosecutions and Erosion of Fair Trial Rights in Turkey

Lawyers march in Istanbul on January 24, 2019 Day of the Endangered Lawyer. The banner reads: “To silence the lawyer’s voice is to deprive the citizen of breath.” Summary :

Since the July 2016 coup attempt, Turkey has seen mass arrests and trials on terrorism charges of thousands of people not involved in any violent act. Among them are journalists, human rights defenders and opposition politicians tried in proceedings which rights groups have documented as politicized and unfair. While lawyers always have a critical role to play in protecting the rights of suspects in police custody and defendants in court, their role in protecting the rule of law and human rights is all the more fundamental in the context of the current crackdown in Turkey. Yet, or more likely because of that, as this report demonstrates, authorities have also targeted lawyers, in particular criminal defense lawyers.

The report examines a pattern of prosecutors investigating and opening cases against lawyers. It documents cases in which prosecuting authorities have criminalized lawyers for activities undertaken to discharge their professional duties and have associated them without evidence with the alleged crimes of their clients. Some of these prosecutions appear to have come about in reprisal for their efforts to document police abuse and other human rights violations and to protect the rights of their clients. The report also documents cases where police have threatened and intimidated lawyers, obstructing and interfering in their professional duties. The report concludes that the authorities’ unwarranted and abusive targeting of lawyers for prosecution has undermined a key guarantor of the right to a fair trial in Turkey.

The majority of those on trial for terrorist offenses in Turkey at time of writing are charged as members of what the courts and government term the “Fethullahist Terror Organization” (commonly abbreviated to FETÖ) because they accuse the movement, connected with the US-based Muslim cleric Fethullah Gülen, of being responsible for the attempted coup. The second largest group facing terrorism charges are prosecuted as members of the armed Kurdistan Workers’ Party (PKK). A smaller number of people have been charged with terrorism offences for links to smaller outlawed leftist groups and the extremist group Islamic State (IS).

In November 2018, Ministry of Justice figures revealed that 17 percent of Turkey’s entire 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 offences and facing sentences typically in the range of seven and a half to twelve and a half years for membership of a terrorist organization to much higher sentences for those facing multiple charges. Tens of thousands more individuals being prosecuted for terrorism offenses are at liberty. In the period since the attempted coup, the authorities have considerably widened the already overly broad and vague definition of terrorism.

The majority of lawyers on trial for terrorism are charged with being FETÖ members and a smaller number are on trial for PKK membership or links to outlawed leftist groups. In the case of those prosecuted for PKK membership or links to leftist groups, the prosecution is often based on statements they gave to the media or their participation in press conferences or demonstrations. A civic group, the Arrested Lawyers Initiative, reported in April 2019 that 1,546 lawyers have been prosecuted, with 274 among them convicted in first-instance courts of membership of a terrorist organization, and 598 having been held in pretrial detention for varying periods.

In the months after the July 15, 2016 attempted coup, detainees accused of being members of FETÖ often had difficulty getting lawyers to represent them, with delays even in getting enough compulsory legal aid lawyers to be present during their interrogation by prosecutors and appearance before courts. Antipathy to the Gülen movement in Turkish society as a whole may account for some of the reluctance of lawyers to step up and be involved in FETÖ cases, but lawyers were also concerned they themselves could be prosecuted for taking on these cases. This report shows that such concerns were justified.

The increase in cases of lawyers being threatened and prosecuted has occurred in a context where the Turkish authorities have also imposed rigorous restrictions on the right of individuals in pretrial detention accused of terrorist crimes to benefit from legal counsel and to prepare for defending themselves in court.

Several measures introduced under the state of emergency by decree and subsequently made law and incorporated permanently into Turkey’s Criminal Procedure Code (CPC) and Law on the Execution of Sentences and Security Measures undermine the right of a suspect to legal counsel and a defense. For example, prosecutors have the power, routinely invoked, to authorize police, with post facto court approval, to restrict lawyers from meeting with clients during the first 24 hours of their police custody. Lawyers’ privileged communication with their clients in pretrial prison detention has been effectively abolished as authorities are permitted to record and monitor all communications between lawyer and client, and the number of lawyers permitted to represent a client in court in a terrorism case is limited to three.

Lawyers can find themselves barred from acting for a client facing a terrorism investigation for up to two years, if they themselves are under investigation for terrorism; and courts can restrict named lawyers from accessing investigation files of individuals in police custody on suspicion of terrorism offenses. Police also regularly use such court decisions to prevent named lawyers from meeting with detainees. Measures that undermine equality of arms and the adversarial elements of trial proceedings inherent to building a defense, also include allowing courts to conduct hearings and issue verdicts without lawyers present if they rule the lawyers have not provided reasons for their absence; to reject lawyers’ requests to hear witnesses if they deem the aim is to prolong the trial; and to hear some protected witnesses remotely, with their voices altered or faces screened, so they cannot be cross-questioned in person in court. Similarly, another provision has led to courts routinely barring defendants in prison from attending their court hearings in person but rather having them join remotely by video linkup to the prison (known in Turkey as Ses ve Görüntü Bilişim Sistemi, SEGBIS).

Lawyers interviewed by Human Rights Watch reported that, in terrorism trials, courts have become increasingly unresponsive to their petitions to have evidence critically examined or tested and to hear witnesses for the defense. Lawyers said they were little more than “extras” in court hearings. Equality of arms between the prosecution and the defendant cannot be preserved if the defendant’s lawyer is with no valid justification barred from mounting an effective defense and if the adversarial elements of proceedings become little more than a formality.

In addition, under the state of emergency the government closed down many lawyers’ organizations, most notably three which have a strong focus on human rights cases and supporting the rights of defendants in terrorism cases, namely the Contemporary Lawyers Association, the Free Lawyers Association and the Mesopotamian Lawyers Association.  Scores of other lawyers’ associations, such as the Ankara-based Law and Life Association (Hukuk ve Hayat Derneği), were closed under first state of emergency decree in July 2016 accused of having Gülenist affiliations.

All the lawyers interviewed for this report told Human Rights Watch that the Union of Turkish Bars, the professional body to which all Turkey’s provincial bar associations are affiliated, was reluctant in the post-coup period to offer a robust defense of the principles of the right to a fair trial and the right to legal counsel for all suspects and defendants. Similarly, they argued, bar associations and the Union of Turkish Bars have failed for the most part to employ their institutional strength and authority to uphold the rights of lawyers in a principled and impartial way. They have been unwilling to support lawyers faced with serious obstacles in discharging their professional duties and have often failed to support lawyers subjected to arbitrary investigation and prosecution.

Methodology

Research for this report was carried out in July 2018 and between November 2018 and February 2019. A Human Rights Watch researcher conducted interviews with 35 lawyers either in person in Ankara, Urfa and Istanbul, or by phone. In all the criminal cases against lawyers discussed the case file numbers are included and lawyers mostly named. In some cases, the names of lawyers interviewed were withheld at their own request but are known to Human Rights Watch. All interviews were conducted in Turkish. Human Rights Watch also examined written records such as prosecutors’ indictments and supplementary dossiers of evidence, records of court hearings and first-instance court decisions, where they were available.

I. Background

For courts to see no distance between a lawyer and their client is a new development. If a lawyer defends a Kurd these days that makes him a Kurdish nationalist. If he defends a FETÖ suspect he is a FETÖ member. As a lawyer you meet your client in prison and you have no possibility of confidential communication since there’s a prison guard present, a microphone, and a camera. In court, the judges accept none of your requests, such as hearing independent expert witnesses. We are seeing eight-hour trial hearings which are purely symbolic and in which nothing is taken seriously. The courts are completely unresponsive to lawyers. There is no equality of arms left, no possibility of being able to look the judge in the eye.^[1]
– Ankara lawyer, July 2018

In the aftermath of the failed July 15, 2016 military coup in Turkey, legitimate efforts by the authorities to prosecute those who planned and were involved in the violent events have often been obscured amidst a much more widespread crackdown on critics, dissidents and political opponents of the government. Alongside the trials of military personnel, thousands of civilians not involved in any violent act have found themselves prosecuted and jailed for terrorism.

The majority of those on trial for terrorist offenses in Turkey at time of writing are charged as members of what the courts and government term the “Fethullahist Terror Organization” (commonly abbreviated to FETÖ) because they alleged the movement which they designate a terrorist organization headed by  US-based cleric Fethullah Gülen, was responsible for the attempted coup.[2] The second largest group facing terrorism charges are prosecuted as members of the armed Kurdistan Workers’ Party (PKK). A smaller number of people have been charged with terrorism offences for links to smaller outlawed leftist groups. In November 2018, the Minister of Justice announced statistics showing that 17 percent of Turkey’s entire prison population consisted of inmates either convicted of or on trial for terrorism offences.[3]  Tens of thousands more individuals under prosecution for terrorism offenses are at liberty. While all professional groups in Turkey have been affected, this report focuses on the prosecution and targeting of lawyers. As with other groups, the majority of lawyers on trial for terrorism face the charge of being FETÖ members while others are on trial for PKK membership or links to outlawed leftist groups.[4] For the latter two groups it is often their statements to the media or participation in press conferences or demonstrations that has led to their prosecution.[5]

Several lawyers Human Rights Watch spoke to while preparing this report reported accounts of police threatening them or making semi-threatening remarks to them, such as “Watch out. Representing these suspects could be bad for you,” and “It’ll be your turn next”, when they went to police stations to see detainees. In the months after the July 15, 2016 attempted coup, FETÖ detainees often had difficulty getting lawyers to represent them. In addition to antipathy to the Gülen movement within Turkish society, a key reason for this was the concern that in taking on these cases lawyers could themselves be criminalized. This report shows that such concerns were justified.

The threatening and prosecution of lawyers is occurring in a context where the Turkish government has also imposed rigorous restrictions on the rights of individuals accused of terrorist crimes to benefit from legal counsel while in pretrial detention and to prepare their defense for court. For example, under the state of emergency imposed following the coup attempt, President Erdoğan’s cabinet restricted the rights of defendants in detention to privileged communication with their lawyers. When the state of emergency was lifted in July 2018, the restrictions remained in place because parliament had made them law and at time of writing they are a permanent part of Turkey’s Criminal Procedure Code and Law on the Execution of Sentences and are routinely applied.

Lawyers have reported to Human Rights Watch that, in terrorism trials, courts have also become increasingly unresponsive to their petitions to have evidence critically examined or tested and to hear witnesses for the defense. They often see themselves as little more than “extras” in court hearings. Equality of arms between the prosecution and the defendant is severely undermined when the role of the defendant’s lawyer is unduly restricted and the adversarial aspects of trial proceedings are little more than a formality.

In addition, under the state of emergency the government closed down many lawyers groups, most notably three which have a strong focus on human rights cases and on supporting the rights of defendants in terrorism cases, namely  the Contemporary Lawyers Association, the Free Lawyers Association and the Mesopotamian Lawyers Association.[6]  Scores of other lawyers associations, such as the Ankara-based Law and Life Association (Hukuk ve Hayat Derneği) were closed down under the first state of emergency decree, accused of having Gülenist affiliations.[7]

All the lawyers interviewed for this report told Human Rights Watch that the Union of Turkish Bars, the professional body of which all Turkey’s provincial bar associations are members, were reluctant in the post-coup period to offer a robust defense of the principles of the right to a fair trial and the right to legal counsel for all suspects and defendants. Similarly, they argued, bar associations and the Union of Turkish Bars failed for the most part to employ their institutional strength and authority to uphold the rights of lawyers in a principled and impartial way. They have been unwilling to support lawyers faced with serious obstacles in discharging their professional duties and have often failed to support lawyers subjected to arbitrary investigation and prosecution.

In a rare exception to this trend, bar associations from around the country and the head of the Union of Turkish Bars condemned accusations against the Diyarbakır Bar by the minister of interior, Süleyman Soylu. In June 2018, in the run up to presidential and parilamentary elections, Soylu accused the Diyarbakır Bar and other civil society groups of supporting the PKK, and even threatened legal action against the Diyarbakır Bar.[8] In response, the bar lodged a formal complaint that the Interior Minister’s comments were inciteful, exposed the bar to risk of attacks, were defamatory and a misuse of the minister’s position.[9] However, in December 2018, media reported that following complaints against the Diyarbakır Bar Association, the Diyarbakır prosecutor was investigating the former board of the Diyarbakır Bar for public statements in the period 2016-18 which “insulted the Turkish nation, the state and state institutions and organs” under article 301 of the Turkish Penal Code.[10]

Several lawyers complained that in southeast Turkey the police very often label lawyers on the basis of the clients they represent and that this can be a serious obstacle to the right to an adequate legal representation. One lawyer from Diyarbakır told Human Rights Watch:

I attempted repeatedly to visit my client in police custody but they didn’t let me see him and told me that he didn’t want me to represent him anymore and that they had called a legal aid lawyer from the bar. Ten days later, after my client was released, he visited me to tell me the police had said to him, “Your lawyer works for the PKK and it will be bad for you to be represented by him. My client had agreed to have a legal aid lawyer from the bar instead because of what the police had said about me.[11]

This report first looks briefly at the government’s move to widen the definition of terrorism.  Then it analyzes the legislative changes restricting the right to legal counsel. Finally, the report focuses, at greater length, on actual prosecutions of lawyers and the readiness of prosecutors and courts to treat the activities connected with discharging professional duties as a lawyer as though they were a crime.

II. Widening the Definition of Terrorism

Under the state of emergency imposed after the failed July 15, 2016 military coup in Turkey, the president and cabinet issued a series of decrees which dismissed over 130,000 public officials, closed down media outlets, schools and civil society organizations, and changed many existing laws.[12] The main target of the crackdown was the Fethullah Gülen movement, an extensive religious network led by US-based Sunni Muslim preacher of that name, whom authorities in Turkey say was behind the coup. While the measures in the decrees should have been limited to the period of the state of emergency, they became permanent when, after October 2016, parliament, controlled by the President Erdoğan’s Justice and Development Party (AKP), passed legislation incorporating them into Turkey’s regular law.

Before considering the restrictions in the legislation imposed on the right to a legal defense, it is important first to describe how the government greatly increased the scope for prosecuting people for links with terrorism.

Turkey’s Anti-Terror Law (law no. 3713) has been in place since 1991 and has been revised multiple times. The UN Special Rapporteur for the Promotion and Protection of Human Rights while Countering Terrorism criticized the law following a country visit to Turkey in 2006. In particular, the special rapporteur recommended that the definition of terrorist crimes be brought in line with international norms and standards “including defining more precisely what crimes constitute acts of terrorism and confining them to acts of deadly or otherwise grave violence against persons or the taking of hostages”. The special rapporteur warned that “only full clarity with regard to the definition of acts that constitute terrorist crimes can ensure that the crimes of membership, aiding and abetting and what certain authorities referred to as ‘crimes of opinion’ are not abused for purposes other than fighting terrorism.”[13]

The UN special rapporteur’s report has gone unheeded in Turkey where, over many years, authorities have misused terrorism laws to criminalize and incarcerate individuals who have not committed violent acts, incited others to violence, or provided logistical support to armed groups. Various studies have demonstrated the misuse of terrorism laws. Human Rights Watch itself has documented the use of terrorism charges  against protesters, political activists, rights defenders and academics.[14] The Council of Europe Commissioner for Human Rights has criticized Turkey’s use of terrorism charges to restrict freedom of expression.[15] The designation of armed groups as terrorist organizations is formally dependent on decisions of Turkey’s top court of appeal, although in practice it appears merely to rubber stamp the government’s proposed designations.