For nearly seven years, the Turkish Government has been cracking down on lawyers, particularly those with alleged links to the Gulen Movement or those who did not fully support Erdogan after the failed coup attempt. More than 1600 lawyers have been arrested, and 551 have been sentenced to a total of 3356 years in prison on terrorism-related charges, predominantly for membership in a terrorist organization. It is distressing to think that, even after so long, certain Turkish lawyers are still persecuted merely for representing individuals associated with the Gulen Movement.
The Ankara Regional Appeal Court on 27 December 2023 ruled on the appeal of scores of lawyers previously sentenced to between 6 and 9 years and who had served part of their sentences. The Appeal Court dismissed their appeals and re-sentenced them to a total of more than 125 years, with individual sentences ranging from 6 to 8 years. The case is now set to be considered by the Court of Cassation.
Evidence Against These Lawyers
Evidence against the lawyers includes being members of the Lawyers’ Association, which was lawfully incorporated at the relevant time, the identities of their clients, use of the ByLock app, being customers of Bank Asya, the choice of private hospitals and hotels for treatment and accommodation, making donations to a specific relief organization which was honored by Parliament, and possession of certain books, among others. In fact, the alleged ‘criminal activities’ that have led to the conviction and imprisonment of many lawyers are such that, in any other jurisdiction, they would not constitute a crime and would likely be commended instead.
The indictment, prepared by the Ankara Chief Public Prosecutor’s Office, accused these lawyers of being executive or ordinary members of Hukuk & Hayat (Law & Life), a lawyers’ association in Ankara that was shut down by decree-law during the state of emergency declared after the failed coup. The association, which provided professional training and social events, and offered assistance to trainees and junior lawyers, was charged with “membership of an armed terrorist organization” based on its members’ list obtained from the Governorship’s office. Notably, a police report concluded that the association committed no offence.
According to the indictment, the only evidence that Hukuk & Hayat was directly linked to the Gulen Movement was that it was shut down by a decree law. The court did not think it was necessary to look beyond that. The public prosecutor did not offer a shred of evidence as to how exactly such a professional organisation was being run by the Gulen Movement. The prosecutor seems to have an interesting approach when linking individual lawyers to the Gulen Movement. Sometimes the prosecutor uses the identity of a particular board member and his clients to link Hukuk & Hayat to the Gulen Movement. Then he links its ordinary and board members to the Movement and charges them with membership to an armed organisation.
Turkish Constitution and the European Convention of Human Rights enshrine the freedom of association. On the other hand, according to Articles 23-24 of the UN Basic Principles of the Role of Lawyers, lawyers are entitled to “freedom of association and assembly” and to “form and join self-governing professional associations to represent their interests, promote their continuing education and training and protect their professional integrity”. They shall have the right to join or form local, national or international organizations and attend their meetings, without suffering professional restrictions because of their lawful action or their membership in a lawful organization.
The lawyers have been identified with their clients
According to Article 18 of the UN Basic Principles on the Role of Lawyers, lawyers may not be identified with their clients or their clients’ causes as a result of discharging their functions. Despite the clear prohibition to do so however prosecutor and the Ankara Appeal court have relied on such lawyers’ client lists. Having represented the individuals who are prosecuted under anti-terror laws or entities such as schools, associations or companies which were closed down or confiscated by decree-laws was held as incriminating evidence.
Using a particular messaging app
Being allegedly Bylock users, which was an encrypted messaging app like WhatsApp and Signal, is also another decisive evidence against some of the lawyers. The lawyers during the entire prosecution challenged this evidence and asked for a digital copy of evidence against them as well as an expert panel examination to address the inconsistencies in the Bylock material, however, all of these requests were denied and the Court exclusively relied on police report stating that they are Bylock users.
Other Evidence
The other evidence included that the defendants, their spouses and fathers had bank accounts in Bank Asya, a bank which operated lawfully under the supervision of Turkey’s banking authority until it was confiscated by the state for its alleged links to the Gulen Movement was cited as evidence, the schools which the defendants’ children attended were cited as evidence, the hospitals they chose for treatment, the hotels they accommodated.
The court found that the defendant’s organizing their efforts to represent certain people during police interviews were criminal activity carried out to “show the state in a bad light” or “show that the investigations and criminal proceedings which followed were unlawful”. The evidence against every defendant includes a list of their clients. If any one of their clients was a person or a company allegedly associated with the Gulen Movement, it was used to convict them. For instance, the fact that the clients of a defendant included a teachers’ union which was closed down by a decree law was considered incriminating evidence.
But probably the most bizarre of them all is a law book which was found in the office of one of the lawyers. The book was titled “Rights and Restrictions in Union Actions”. The book was seen as incriminating because it was published by a trade union that had been closed down by an emergency decree, even though the book was only about the provisions of the Turkish constitution on trade unions and freedom of assembly.
In fact, the so-called “criminal activities” that led to the conviction and imprisonment of so many lawyers are such that they would not only not constitute a crime in any jurisdiction, but would probably be praised. Yet this did not stop the Ankara Court of Appeal from sentencing them to more than 125 years in prison.
Total disregard for ECHR rulings
In justifying its decisions as described above, the court explicitly ignored the rulings of the European Court of Human Rights (ECHR), even though these rulings were repeatedly cited as precedents by the defendants’ lawyers.
Most importantly, the Ankara Regional Appeal Court ignored the ECHR Grand Chamber’s September 2023 judgment in Yüksel Yalçınkaya v. Turkey. In this judgment, the ECHR found that the conviction under Article 314 of the Turkish Penal Code (membership of an armed terrorist organization) for using Bylock violated the principle of no punishment without law and the right to a fair trial. This conclusion is consistent with similar findings by the UN Human Rights Committee in the cases of İsmet Özçelik et al. (CCPR/C/125/D/2980/2017, 23 September 2019) and Mukadder Alakuş v. Turkey (CCPR/C/135/D/3736/2020, 26 July 2022). The ECHR ruled that this judgment applied to all cases involving Bylock allegations and therefore ordered Turkey to take general measures to prevent similar potential 100,000 applications. In the same judgment, the ECHR ruled that it’s a violation of freedom of association to use someone’s membership in associations or trade unions that were closed down by decrees issued during the 2016-2018 state of emergency. The Court held that membership in and activities of those associations and trade unions should be presumed to be lawful, as they were legally established at the material time. (Identical findings: Nazlı Ilıcak v Turkey (No. 2) App No. 1210/17, 14 December 2021; Taner Kılıç v Turkey App No. 208/18, 31 May 2022).
However, the Ankara Regional Appeal Court, in complete disregard of the facts and the law, stated: “Although some of the defendants and their legal counsels have claimed in their oral and written submissions that the judgment of the ECHR in Yüksel Yalçınkaya v. Turkey constitutes a precedent for them, there is no final judgment of the ECHR regarding the violation of the European Convention on Human Rights (ECHR) and its additional protocols concerning the defendants. In light of the ECtHR judgment in Yüksel Yalçınkaya v. Turkey, … it has been concluded that the violations referred to in that judgment relate only to the finding of violations specific to the application in that particular case and that the violations of the principles of the right to a fair trial under Article 6 ECHR and the principles of legality in criminal matters and punishment under Article 7 ECHR referred to in the judgment are not applicable to the defendants”. (Ankara Regional Appeal Court’s 22nd Criminal Chamber, 27 December 2023)
Conclusion
In light of this decision by the Ankara Regional Appeal Court, it is clear that there is a marked reluctance within the Turkish judiciary to comply with the rulings of the European Court of Human Rights (ECHR), despite the fact that these rulings are binding on them. The decision by the Ankara Court of Appeal to ignore clear precedents set by the ECHR is a worrying indicator of the current state of judicial independence and respect for international law in Turkey.
This situation underlines the immediate and urgent need for the Council of Europe to take a bolder stance on the enforcement of ECHR judgments in Turkey. The Council’s role is crucial in upholding the integrity of human rights in its member states, and a more assertive approach is needed to ensure that these rights are not only recognized but actively upheld. Without such enforcement, ECHR judgments risk being reduced to symbolic gestures with no real impact on the protection and promotion of human rights within the jurisdiction of its member states.
Categories: Turkey Human Rights Blog, Unjust / Wrongful Convictions