President of Istanbul Bar Association Attorney-at-Law Mehmet Durakoğlu warned about the threat of political favoritism in the judiciary. Durakoğlu referred to Bertolt Brecht "Justice is the bread and water of the people. Therefore, struggle is a must."
Journalist Canan Coşkun from Cumhuriyet Newspaper made an interview with the President of Istanbul Bar Association Atty. Mehmet Durakoğlu concerning the concept of "justice" which has been the reason for the recent marches. Fulfilling the presidency of Istanbul Bar Association, which is the largest bar association worldwide, and practicing legal profession at the same time, Durakoğlu presented crucial statements concerning various issues during this interview varying from the passivization of attorneyship profession to the decisions made by the Constitutional Court, which made its existence questionable.
Canan Coşkun: Trust of people in the justice system due to incrimination of irrelevant people first in Ergenekon and Sledgehammer, and now in FETÖ investigations. What kind of a liability is it to chair Istanbul Bar Association in such a chaotic environment.
Av. Mehmet Durakoğlu: A serious liability, indeed. I think Turkey is going through the most serious judicial crisis of its history. This is far beyond a statement. We see that trust of people in judiciary does not even reach up to 30% when asked. I believe that the turning point for this is the referendum held in 2010. The referendum in 2010 was held by the political power in order to set up their own cadre in judiciary. Unfortunately, we could not succeed in understanding this fully at that time. As Istanbul Bar Association, we strived hard during that referendum, and we made a great effort to make people say "no". However, we could not achieve this. This resulted first in Ergenekon and Sledgehammer investigations which aims at defamation of the Turkish Armed Forces, then in political favoritism in judicial offices. In the aftermath of July 15, one third of the existing judges and prosecutors were dismissed from their duties while one fourth were jailed. This is final point we arrived at as a result of the referendum in 2010. If Turkish people had not voted for "Yes" in 2010 referendum, Turkey would not have gone through the coup attempt of July 15.
It is everyone's duty to struggle for justice
CC: What should Istanbul Bar Association and other relevant legal organizations do in such a period when law is disregarded to such an extent.
MD: They need to struggle. Everyone set on their feet. The issue of justice, which has long been our issue of concern, has been an issue which relates to the public as a whole. Bertolt Brecht says "Justice is the bread and water of the people" . This is what it is. Justice is a vital need just like bread and water. In our society, people wants food, work, bread and water, but they do not ask for justice. We need to change this point of view. Though to a limited extent, recent developments drags the society to a point where a sensitivity for justice could be achieved. We are trying to contribute to this process. It is of utmost importance for us to be involved in this process. Sensitivity towards the concept of "independence of judiciary" should be developed within the society. It is considered that it is lawyers, judges and prosecutors' duty to provide independence of judiciary. However, this is not the case. Independence of judiciary means leading a humane and dignified life, it means legal security. Independence of judiciary is walking tall. It means it is only the dairyman who knocks on the door at 6 in the morning. Turkey has today lost its characteristic of being a state governed by the rule of law and the reason for this is OHAL [state of emergency] process that was initiated after July 15, the KHKs [governmental decrees] issued due to that and Turkey’s Constitutional Court decisions which gave up doing the constitutional monitoring of KHKs. Before these qualities are gained again, I believe it is not possible for the rule of law and democracy to function again in Turkey. In this respect, we go on with our struggle to this end.
CC: How does it feel like to practice as an attorney-at-law along with your office as the President of Istanbul Bar Association while the concept of justice is being emptied by the political power and thereby the courts?
MD: Attorneyship (legal) profession is the most harmed profession by OHAL among the elements of judiciary because we are able to fulfill our defense duty only to a limited extent due to restrictions brought by the governmental decrees. Restrictions were brought before access of the lawyers even to file numbers in the ongoing investigations. I do not know a single lawyer who could start the new judicial year in hope. We are concerned whether the new judicial year could "even be worse". We are a part of a picture where all the rooms of the courthouse, which are supposed to be full of justice, were carefully closed, locked and where there is a conscious effort to "nullify justice". However, what falls on us is always to give a struggle.
CC: Uniform dress code to be imposed on the defendants is on agenda..
MD: There is the right against self-incrimination for the people who do not have a finalized punishment to a great extent and for the people whose were detained as a precaution. I might be going under criminal proceedings, I might be jailed. You make me wear specific clothes and you make me appear in the court in that outfit in such a period when detentions are made so easily. It might be the case that I may be acquitted. If so, what happens to the right against self-incrimination? How will I explain myself within that process? Human rights are for living in dignity. Judgment cannot be made while human rights are violated.
We support 'Justice Watch'
CC: As we referred to the demand for justice, there is also a 'Justice Watch' started by the lawyers in Istanbul Courthouse directly with this demand. What is your insight about this 'Justice Watch'?
MD: In its essence, it looks like a watch which comes out as a result of what is done to Cumhuriyet newspaper. However, when its content is taken into consideration, this reveals itself as an example of an effort to set forth Turkey's need and sensitivity for justice concretized by lawyers.
CC: Justice Watch has started instinctively just after Cumhuriyet indictment. Police and security forces attacked [lawyers] in the first day of the Watch, which resulted in bone fractures in two lawyers, one in nose, one in foot. What lies beneath your participation this Justice Watch on its 10th week?
MD: The decisions to start Justice Watch has not been made by the bar association. It is something decided by a group of lawyers. On that day, there was an interesting development. The first day of Justice Watch coincided with Berkin Elvan trial. I have been in touch with the security forces from the very first day of the Watch. I was trying trying to contact them. They were claiming that Berkin Elvan case and the Justice Watch are interlinked. I tried to explain that this is no the case. I said "Lawyers have "no such a concern". There is no link between this ongoing trial and the Justice Watch." These two occurred coincidentally on the same day. While considering the possibility that some things might occur concerning Berkin Elvan case, security forces were thinking that this movement [Justice Watch] would increasingly go towards this trial. Therefore, we were concerned by the picture that came out as a result. I strived hard in order for the event that broke out on that very day not to finalize in the way it did, however, I could not succeed in it. Justice Watch is not a demonstration of the bar association. That is something developed within the lawyers per se. However, it has been supported by the bar association. We are a part of this picture and this struggle. Police intervention to the lawyers in the courthouse on that day is by no means acceptable.
CC: What is the way to overcome the crisis in the judiciary?
MD: Political favoritism in setting up cadres should be avoided. Political power should avoid setting up its own cadres within the judiciary. It is not only FETÖ that believes its own leader (sheikh) is the mahdi. If political favoritism is done in favor of another religious community while removing FETÖ community, this would have grave results. Principle of merit should revive, an understanding of merit should be developed. Organizations should be made mostly based on merit in bureaucracy.
CC: What is the reason of existence of the Constitutional Court, or AYM?
MD: OHALIK (State of Emergency Inquiry Commission) has been established for the victims of OHAL (state of emergency). After pending the files for 1.5 years, Constitutional Court addressed these to OHALIK. We have started witnessing that access to justice has already been blocked in Turkey when the estimates that the first decision will be made after 5 years earliest at best. Access to justice is one of the principles that is commonly held through universal law. It seems that especially the decision of the European Court of Human Rights that addresses to OHALIK reveals that this Commission has been established as a result of a settlement of the government with the Venice Commission. Therefore, at the point of access to justice, we see that neither the European Court of Human Rights nor the Venice Commission acts in adequate fairness. I think that the stance of the Constitutional Court at this very point is of utmost importance. Here, I ask "What is the reason of existence of the Constitutional Court?" If the citizens are deprived of the constitutional guarantees which are to secure a state to be governed by the rule of law, and if the Constitutional Court remains silent to this, why does it exist?