GIVING BACK: Lawyers under Attack in Turkey

Vol. 31 No. 1

By

Richard Pena (richard@rpenalaw.com) is a former President of the American Bar Foundation and the State Bar of Texas and served on the Board of Governors of the ABA. He was the recipient of the ABA GPSolo Division’s 2010 Difference Makers Award and is currently on the Division’s Pro Bono and Public Service Committee. A previous version of this article was published in the State Bar of Texas Blog (tinyurl.com/odw4ftv). The opinions expressed in this article are the author’s and do not necessarily reflect the positions of the American Bar Association or its Solo, Small Firm and General Practice Division.

Whether a lawyer is opening a law office or has been practicing law for many years, the issue of doing pro bono usually gets back to the same bumps in the road. The two main reasons given by lawyers for not helping those in need are (1) “I don’t have time” or (2) “I lack the expertise or skills that would be needed.”

Through the 37 years that I have practiced law, I have learned that you can find the time to do pro bono, and if you graduated from law school and passed a bar exam, you have or can learn the skills.

A valid real-world obstacle to doing pro bono is that you need to pay the bills. But one of life’s lessons I have learned along the way is that if you do the right thing, the cases and money will come. Pro bono gives us all the opportunity to do the right thing.

Recently, I led a delegation of U.S. lawyers to Turkey. We went as an international exchange and met with lawyers, professors, law students, and leaders in local bar associations. What started out as a mission of understanding and an exchange quickly turned into a very real drama having to do with the lawyers of Turkey and their standing up for the rule of law and fair trials. After learning of their plight, I realized I would never again look at pro bono the same way. Below is a brief account of what the lawyers in Turkey are facing. Perhaps after reading about their situation, you will realize that doing pro bono is the least we can do for preserving the rule of law.

At this writing the president and board members of the Istanbul Bar Association are scheduled to go on trial January 7, 2014. They are facing two to four years in prison, as well as disbarment. They are being charged for the actions of asking a judge, in open court, to permit a fair trial for defendants in a high-profile case. The technical charge is “attempting to influence a member of the judiciary.” Many are concerned that this prosecution is one in a long line of attempts by the government to intimidate lawyers in Turkey.

This was surprising to me because Turkey is a democratic and stable country, as well as a member of NATO. It is rich in natural resources and by geography is in one of the most sensitive regions of the world. There is no question that Turkey is a country that is powerful in its region, just as there is no question that Turkey is at a crossroads. On the one hand is a secular, democratic state. On the other is the slide toward a religious state and suppression of freedoms, individual and human rights, and the rule of law.

During our eight days in Turkey, we went to law schools, bar associations, and a courthouse. We met and discussed rule of law issues with numerous lawyers, law school professors, students, bar association officers who are also lawyers, and other nonlegal people. Again and again we were told the same thing. Lawyers in Turkey are being arrested and detained because they are fulfilling their duty to their clients and to the justice system.

The charges and upcoming trial of the president and board of directors of the Istanbul Bar Association are a good example. The Istanbul Bar Association is a voluntary bar of approximately 30,000 lawyers, and as such one of the largest bar associations in the world. At first it was difficult to comprehend their struggle. My first reaction was to doubt that this suppression was occurring. But after listening to similar accounts by all the people we spoke with, the truth became evident. There is disturbing systematic and ongoing activity by the government to criminalize lawyers in Turkey. This takes the form of detention, prosecution, and imprisonment of lawyers who dare to stand up for the rights of their clients, fair trials, and the rule of law. We were told that the government could bring charges against anyone. The government is very concerned with opposition and broadly categorizes activity it views as a threat.

We were told that the courts are used to prosecute lawyers, journalists, and others who disagree with the prime minister. Lawyers are being arrested and detained while their confidential client files and other property are being seized. These cases are pending before the “special” courts, which have jurisdiction over terrorism proceedings. There is no question that lawyers are being targeted. There is deep concern about the arrest of at least 51 lawyers pursuant to raids simultaneously carried out throughout Turkey. These actions came after threats by prosecutors and courts against the many lawyers defending 152 individuals in a mass trial. Many cases that are deemed political are diverted into “special” courts where there is no limit on how long it can take to go to trial. Quite possibly it can be up to 30 years. Additionally, one can be held in jail up to ten years without charges being filed. Some who are charged are found innocent and released after serving five to ten years in prison. Others are released from prisons after lengthy stays because of lack of evidence. In these “special” courts there is no bail. Bail is used in regular court.

Nine of 15 lawyers arrested on January 18, 2013, for representing unpopular clients remained in custody this past summer without charges or access to the legal justification for their arrests. Police raided the offices of a progressive lawyer’s organization, and 12 officers or members were violently detained under terrorism-related allegations. It is not unusual that those who disagree with the government are classified as terrorists.

This past summer thousands of protesters gathered peacefully at Gezi Park in Istanbul. Those who were protesting came from all walks of life; many were students. These people came together to protest the government’s policies. The reports in the media and the stories of those I spoke with tell of frightening scenes of police tear gas, beatings, and people being dragged out of the park. I spoke with one law student who was peacefully assembled with her 70-year-old father when the tear gas started. She described sheer panic as she and her father were unable to breathe and were thrown to the ground. Fifty of the lawyers who issued a statement objecting to the mass detentions were arrested and dragged on the ground by riot police. Many lawyers were injured before they were released ten hours later, and nearly 3,000 lawyers gathered at the courthouse to protest the detentions. We were told that demonstrations for democracy occurred throughout the provinces.

We were also told that many protesters, especially students, continue to be arrested and charged as terrorists. Some are charged because they were carrying gas masks and swim goggles as protection from the tear gas. One story for which lawyers can be proud involves one mass detention of students. We were told that lawyers had gathered at the courthouse and as each student was being charged, the question was asked if the student had a lawyer. A lawyer, unknown to the student, would stand and announce that he/she represented the student protester. It went on and on. When I heard this story from a group of lawyers, I thought I would never look at pro bono the same again.

Lawyers from throughout the country vow to appear at the courthouse on January 7, 2014, in support of the Istanbul Bar Association president and board of directors. Shakespeare tells us in Henry VI that the first step to taking over a country is to “kill all the lawyers.” In Turkey, the lawyers are putting their lives and careers on the line to stand up for justice, fair trials, and the rule of law. Next time you are trying to decide whether to sign up for the pro bono clinic, or help that client who cannot afford to pay you anything, remember the sacrifices being made by the lawyers of Turkey. I certainly will. 

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