24 January The Day of the Endangered Lawyers

A Review on the Legal Status of the Profession of Lawyer and the Defense Office in Turkey

Justice Uphold Law and Human Rights Platform is a human rights platform founded by lawyers who had to flee their country due to political oppression in Turkey. As Justice Uphold, we are trying to raise social awareness by preparing publications, expert opinions and reports through our website and social media channels; organizing social media campaigns and supporting campaigns organized in this direction. By publishing in four different languages on our website, we aim to bring the social awareness we are trying to create to the international public.

In this article, we have focused on the importance of January 24th Lawyers in Danger Day and tried to examine the meaning of this day and to address the pressures and rights violations that lawyers are subjected to in Turkey.

January 24 is commemorated as “the day of the endangered lawyers” in order to draw attention to the pressure and attacks against lawyers around the world. The emergence of this commemoration day was triggered by a tragic event that took place in Spain on January 24, 1977. In Spain, after the dictator Franco regime, a fascist group raided a law office in Madrid called Atocha and murdered five people, four of whom were lawyers, simply for practicing their profession. This tragedy went down in history as the Atocha Massacre. Every year for years after this event, a country is specially selected and this day is dedicated to that country to draw attention to the threats faced by lawyers in that country. January 24, Lawyers in Danger Day has been commemorated by European Democratic Lawyers (AED-EDL) since 2010. It is jointly organized by European Democratic Lawyers (AED-EDL), the European Lawyers’ Association for Democracy and World Human Rights (ELDH), the Institute for Human Rights of the European Bar Association (IDHAE) and the Endangered Lawyers’ Day Foundation.(1)

In 2012 and 2019, this commemoration day was dedicated to lawyers in Turkey who have been subjected to repression, arrested and prevented from practicing their professional activities.(2) This year, it is dedicated to our colleagues practicing law in Belarus.(3) In this article, we first commemorate our colleagues living in Belarus, where January 24th Lawyers in Danger Day is dedicated, who are under systematic harassment and repression, and then try to examine the current situation in Turkey.

Lawyers are one of the cornerstones of the justice system. Under Article 36 of the Constitution, everyone has the right to a fair trial before the judicial authorities. Lawyers play a vital role in enabling individuals to effectively exercise this right. However, the increasing unlawfulness in Turkey following the alleged coup attempt on July 15, 2016 has deeply affected those practicing the legal profession.

After July 15, many lawyers have been detained, arrested and dismissed from the profession on groundless allegations as a result of the State of Emergency (SoE) and the Decree Laws (KHK) issued during and after the SoE. According to data from the Ministry of Justice between 2016 and 2019, a total of 854 lawyers faced license revocation.(4) In this process, lawyers were identified with their clients and associated with the accusations against the people they defend. They have also been penalized for their professional activities; lawyers, particularly those active in human rights cases, have been subjected to political repression and confronted with all the regime’s instruments of force and intimidation.

Lawyers, who are an integral part of the adversarial judiciary and the principle of equality of arms, have been prevented from practicing their profession by political decisions; they have found themselves in prison on unlawful allegations when they should have been present in the courtroom to fulfill the duty assigned to them by the Constitution. For this reason, in some instances, High Criminal Trials have taken place in the absence of the lawyer, in violation of the law and the Constitution. These trials resulted in heavy convictions. Sometimes, new lawyers who took over the defense duty in place of lawyers who were intimidated by threats or who withdrew from the file for the reasons mentioned above, could not fulfill this duty properly due to these political pressures.

Lawyers who did not want to be punished for political reasons could not mount an effective defense against the prosecution’s indictments, which were prepared with allegations and so-called evidence that were not defined as crimes in the law and did not even have the value of evidence. This pressure on lawyers has led to many unlawful acts in the proceedings. Many people have been sentenced to heavy penalties for acts that are not defined as crimes in the Turkish Penal Code, but are considered normal acts all over the world, in violation of the principle of “nullum crimen, nulla poena sine lege” (no crime and punishment without law). In the absence of lawyers, the prosecution and court authorities took arbitrary decisions and engaged in unlawful practices. As a result, there have been piles of files in the Regional Courts of Appeal, the Court of Cassation and the Constitutional Court due to violations; in fact, the number of files to which Turkey is a party to the European Court of Human Rights (ECHR) has far exceeded the total number of files of many countries. In relation to this issue, it was announced by the court that as of the end of February 2024, 35 out of every 100 cases pending at the ECHR consisted of applications by Turkish citizens. As of February 29, 2024, there were 67,300 pending cases in total, 23,550 of which were applications against Turkey. Turkey is followed by Russia with 10,750 applications in terms of the total number of applications.(5)

As of the first months of 2025, the number of cases pending before the European Court of Human Rights (ECtHR) to which Turkey is a party is 26,384. This information is easily accessible on the court’s current website. Turkey’s legal record is also an important indicator explaining this picture. According to International IDEA’s 2023 Global State of Democracy report, Turkey ranked 148th out of 173 countries in the rule of law. In Europe, Belarus was the only country out of 45 that Turkey was able to overtake.(6)

Law No. 1136 on Lawyers regulates in detail the duties and responsibilities of lawyers, as well as the procedures necessary for an investigation to be opened against them and for this investigation to turn into a prosecution, in order to protect the defense. Articles 58, 59 and 60 of the Law include these regulations.(7) In violation of the relevant articles of the current Law on Attorneys No. 1136, the presumption of innocence has been trampled upon with unlawful searches and seizures of lawyers’ offices and homes during detention procedures. The media coverage of detained lawyers and its use as a weapon has led to the targeted lawyers being declared guilty in advance. Lawyers in this situation have become unable to effectively defend themselves both before the courts and the public. Considering that even lawyers are unable to defend themselves, it is not difficult to understand what kind of an enforcement function the courts have.

For example, the news reports in the national media about 47 lawyers who were detained in an Ankara-based operation clearly show the political pressure on lawyers to practice their profession.(8) At the same time, when it is seen that the trial on the murder of Diyarbakır Bar Association President Lawyer Tahir Elçi, who was killed under suspicious circumstances in 2015, ended in 2024 with the acquittal of all defendants,(9) it becomes clear that it has become impossible for a lawyer to take on case files to prevent rights violations and ensure the enforcement of the law. When the news that 8 lawyers, including lawyer Selçuk Kozağaçlı, who were following the Soma case, were beaten and detained in Soma was reported in the national media(10), it can be seen that taking on the defense role as a lawyer to stand against injustice can be seen as a situation that should be avoided due to the pressures and attacks to be faced.

Unfortunately, this political atmosphere has caused and continues to cause serious and irreversible violations of rights. Therefore, in the current system, it is incumbent on lawyers to attend the hearings, remain silent on the sentence requested by the prosecutor and approve the sentence to be handed down by the judge. Otherwise, the defense is at serious risk from lawyers opposing the government and defending the rule of law, due to the uncontrolled interpretation and unlawful expansion of the Anti-Terror Law. This law paves the way for lawyers to be labeled as terrorists and detained even during court hearings by plainclothes police officers who should not be present in courts. Examples of this situation can be seen in various news sources.

The number of lawyers trying to perform their duties under this climate of fear has remained very limited. Many of the remaining lawyers, unfortunately, have bowed to the pressures of the political authority and abandoned their duty as defense counsel, siding with the prosecution and establishing bribery wheels on the files.(11) As a result, the defense counsel has been confined within a narrow mold and the legal profession has gone far beyond the law and order and started to act in a manner contrary to them.

As a result of this situation of the legal profession in Turkey, which has become dysfunctional due to political pressures, unlawful trials have been and continue to be held all over the country. These cases, which have accumulated before the higher courts, have been brought before the authorities to which Turkey is a party in international legal institutions and organizations, and material and moral damages have been awarded several times.(12) Repeated violations of the principle of “pacta sunt servanda” (the principle of fidelity) have been frequently mentioned by observers responsible for the implementation of these conventions. For example, the ECtHR has convicted Turkey under Articles 6 and 7 of the European Convention on Human Rights (the right to a fair trial and the principle of no punishment without law).(13) Currently, as detailed above, it can be seen from the statistics published by the Ministry of Justice and the European Court of Human Rights that most of the cases before the ECtHR belong to Turkey.

The crackdown on lawyers representing the defense not only threatens their professional independence, but also undermines public and international confidence in the impartiality of the right to defense and judicial processes in Turkey. Justice can only be fully realized in a legal system where the defense is free. Therefore, political pressure on the defense at the national and international level should be ended and lawyers should be allowed to fulfill their duties and responsibilities set out in the Constitution and laws without being under any pressure. The professional independence and security of lawyers must be guaranteed and their place in courts and proceedings must be restored as required by law. Otherwise, there will be no end to the increasing number of unlawful trials and arbitrary practices will continue. As a result, it will not only be the lawyers who will be victimized, but the entire justice system and, by extension, the whole of Turkey.

Uphold Justice

Law and Human Rights Platform

Legal Support Commission

Bibliography:

24 January The Day of the Endangered Lawyers

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