Lawyers on trial: Report on the KCK hearings

On 16 – 19 July 2012, thirty-six Kurdish lawyers, representatives of imprisoned Kurdish leader Abdullah Ocalan, were tried at Istanbul High Criminal Court. They were arrested in November 2011 and charged under the Anti-Terror Act of ‘being a member of an illegal organisation’ and ‘passing orders of Abdullah Ocalan’.  Margaret Owen OBE, barrister, human rights lawyer and patron of Peace in Kurdistan campaign travelled to Istanbul with other international colleagues to observe the mass trial. She has written a report on her observations, which you will find below. The report is also available for you download (Word doc).

MASS TRIAL OF 36 KURDISH LAWYERS

Report on trial of the 36 lawyers at the Istanbul High Criminal Court, 16 – 19 July 2012

by Margaret Owen OBE, Barrister

Introduction

In June, the Peace and Democracy Party (BDP) appealed for international delegates to monitor the trial of 36 Kurdish lawyers, all members of the BDP, who were arrested in November 2011 in ongoing police operations against the Kurdish Communities Union (KCK). Ali Has, a Kurdish lawyer from the UK, and I joined other international delegates from across Europe in response to the appeal. We spent three days observing the mass trial in the Special Criminal Court in Istanbul, Turkey. [1]

This trial is one of a series in which elected political leaders, human rights activists, journalists, trade unionists and students are being tried for alleged connections to the KCK and by extension, for committing ‘terrorist offences’. In reality, Turkey’s widely criticised and extremely broad anti-terror law has been used to nullify and suppress the movement for Kurdish rights in Turkey. This wave of arrests and prosecutions, which has led to around 8,000 people being imprisoned since 2009, has been taking place in conjunction with continuing military operations in southeast Turkey.

The defendants were acting as Abdullah Ocalan’s defence lawyers at the time of their arrest. Significantly, Ocalan himself has been confined in near complete isolation on the prison island of Imrali for over a year since July 2011, without access to his lawyers, friends or family. It appears self-evident that the arrests and prosecutions of Ocalan’s legal team are part of a broader strategy on the part of the Turkish government to isolate Ocalan from the people he represents.

The lawyers are charged under the Anti-Terror Act of ‘being a member of an illegal organisation’ and ‘passing orders of Abdullah Ocalan’. They are also accused of managing an illegal association named the Leadership Committee.

Background

This trial is one of a series against the KCK, which the Turkish state regards as the urban arm of the Kurdistan Workers’ Party (PKK).[2] However, this is the first trial to target lawyers and accuse them of supporting terrorism simply because they are defending Abdullah Ocalan, founder and leader of the PKK and widely considered the political representative of the Kurdish people, who has been incarcerated on Imrali since he was kidnapped in Nairobi more than twelve years ago.

The lawyers, all but two of whom were refused bail, have been in pre-trial detention in Kocaeli prison, a two hour drive from Istanbul, since their arrest eight months ago.  These arrests have aroused intense protest not just among all Kurdish lawyers, but among members of the Turkish bars of Ankara and Istanbul, as well as condemnation from lawyers from many countries across the world, and representatives of international bar and human rights associations.  For it is an absolute right for anyone accused of a crime to defend himself or herself and be represented by a lawyer. The lawyers were simply “doing their job” as professionals. This harassment and persecution of the lawyers represents a further initiative of the AKP government to destroy all activities and efforts by the Kurdish population to obtain their fundamental human rights – rights to equality before the law, freedom of association, expression, rights to use their own language, to be represented in national and local government and to find a peaceful resolution of the conflict through dialogue and diplomacy, and not through violence. It affronts all principles of fairness and democracy to accuse a lawyer of crimes simply through association with the accused he or she is representing.

Until fairly recently, before 2009, there seemed to be hope that Turkey would start to explore how to resolve the Kurdish question by peaceful means, rather than repressing its Kurdish citizens through the force of guns and arbitrary arrests. Ocalan had repeatedly asked for cease-fires, also agreed by the PKK. The Oslo peace talks also gave grounds for optimism. It was when the AKP withdrew and these talks broke down that the harassment of Kurdish parliamentarians, elected mayors, lawyers, and civil society activists intensified and mass arrests of Kurdish men, women and even children began to increase alarmingly.  This trial of the lawyers is part of this policy.

Some Criteria for Fair Trials

To comply with international standards and especially obligations under such conventions as the International Covenant on Civil and Political Rights (ICCPR), with the European Court of Human Rights (ECHR), and indeed with Turkey’s own constitution, everyone is entitled to a fair trial.

There should be no arbitrary arrests and those detained should know the reasons for their arrests.  Bail should be given where there is no evidence that the accused will flee the country, is a threat to the public or may suborn witnesses.  Regretfully, the proceedings we observed during the three days we were in Istanbul’s Special Criminal Court, and what we learnt about the circumstances of the arrests and pre-trial procedures did not conform to these standards. Furthermore, Turkey’s own domestic law was breached, since the 1926 Lawyers Act requires the Ministry of Justice to give permission for any prosecution of a lawyer. No such permission was ever requested in this case.  The lawyers’ offices were raided and their files and computers confiscated, violating their rights to confidentiality and privacy.  Several of the lawyers were beaten whilst in police detention.  In the eight months they have been in prison they were not allowed to see the indictment which runs to some 100,000 pages, with 200 extra files.  A request to install PCs and internet facilities in the prison so that the suspects could at least prepare their defences for the trial was refused.

Moreover, it seems that the Prosecutor has invented a new charge that does not appear in any existing Turkish law:  Talking with Ocalan.   Even so, the charges are groundless since the interviews the lawyers had with their client were always in the presence of a state official, and in any case the state bugged and taped the conversations, both face to face with Ocalan on the island and on the phone.  Such taping and recording are unlawful acts: a defendant and his lawyer have a right to privacy and confidentiality. Therefore this evidence is both spurious and at the same time should be inadmissible. As for the charge that the lawyers were engaged in establishing a Leadership Committee, there is no evidence for this allegation. The only person who could give evidence on this charge is Ocalan himself, who, then, in the interests of fairness, should be summoned as a witness.  But this request was also refused.

The Hearing

The Istanbul Special Criminal Court is housed in the largest court building in Europe. It was anticipated that a large courtroom would be needed since so many lawyers from all over Turkey would want to attend the trial, in addition to the numerous representatives of international delegations, together with the 36 defendants, their relations, and their 60 lawyers as well as armed security guards.  The BDP therefore suggested that the big Conference Hall be adapted for the hearing. This proposal was rejected. Instead, the hearing took place in a small stuffy room, without any air-conditioning or adequate audio equipment. It was so hot and cramped that it was difficult to either hear or see what was going on. Many of the lawyers who had crowded into the court by pushing and squeezing to enter through the narrow door, stood on chairs and even on each other’s shoulders to get a glimpse of the judge, his two co-judges, the prosecutor, the suspects and their lawyers, until they were slapped down by the armed security guards who also filled the court room. In the sticky heat tempers were frayed and easily lost, including that of the judge who seemed quite incapable of controlling his own court.

The Proceedings

The hearing should have commenced at 11 am on the Monday, but such was the chaos of the corridors outside the courtroom that the Judge did not take his seat till well after midday. First the defendants were asked to give their names.  They each answered in Kurdish, “Ez I virim”  (I am here). Unlike the Amed (Diyarbakir) KCK trial judge who turned off the microphone when Kurdish suspects spoke noting “he spoke in an unknown language”[3], this Judge let the defendants use their mother tongue but their lawyers agreed to argue their case in Turkish. But first each of the sixty defending lawyers had to give their name and that of their client. Most of them said “I represent them all”. But once that register had been taken, the other Kurdish lawyers in the court (during the three day hearing about 400 lawyers had visited the courtroom) raised their hands asking for the microphone and each one said his or her name and “I represent them all.”  We learnt later that some 860 lawyers had signed a power of attorney for those lawyers accused of supporting terrorism.

Before the judge prepared to read a summary of the 100,000 page indictment, the defendants’ lawyers introduced a petition which stated that the court was itself unconstitutional, had no jurisdiction in this matter, it was soon to be abolished, and the Judge himself could not be regarded as impartial since it was he who first authorized the detentions eight months previously.   He was asked “To drop all charges and release all the suspects immediately.”  Near pandemonium broke out at his refusal. The judge also stood up and in a rage, shouted “Do not instruct me how to run my court. Do not push me too far!” At which one of the lawyers responded, to loud applause and laughter “You will regret what you said today when you are in your retirement for this court will soon close down”.

The hearing then continued until early evening with impassioned speeches by the lawyers, one of whom likened the trial, in its historical significance for the Kurdish people, to the traumatic forced expulsions from their mountain villages over two decades ago.  “This trial is important for it will determine whether the deadlock on the Kurdish problem will be resolved or continue”.  Another said, “This case is all about the Kurdish people and has no legal standing. It’s a trial of freedom and democracy.  We are not here as lawyers to protect the State but to protect the citizen from the State.”  And a third lawyer stood up and said “This case is historic because it can allow the courts to contribute to a positive solution to the Kurdish problem or it can disregard truth and endorse criminal sanctions”.

Conclusion

On the third and last day the Judge released nine defendants from detention, mainly on health grounds, but placed them under “judicial control” which means regular reporting to the police and restrictions on their mobility.  Perhaps this small act of leniency was meant to impress the large international gathering that the Turkish justice system was capable of delivering some small morsels of justice, but few of us, if any, came away from this trial without grave concern for the imprisoned lawyers, for the Kurdish people, and for all the citizens of Turkey forced to live with a justice system that falls so far beneath international standards and cannot, in its present state, deliver real justice.  This was most clearly a political trial, not a legal one.  Its judiciary is not independent, and judges and prosecutors are clearly agents of the state.   The trial must terminate this year since this court of special authority is due to be abolished.   It is predicted that when the hearing resumes the 27 remaining lawyer detainees will receive sentences of between 6 and 10 years.  But this trial is not merely of importance to the Kurds.  It is of great significance for all the citizens of Turkey as it has revealed deep structural flaws that prevent the democratisation of the country. It demonstrates clearly how far the Turkish state will manipulate the law in order to continue its persecution of the Kurds.

Turkey claims to have no political prisoners; instead, the government uses broad anti-terror laws, which allow prosecutors and judges to jail anyone who is a ‘potential threat’, to arrest and convict those who oppose the government’s policies. This had lead to Turkey having a third of the world’s convicts for terror offences, over 12,000 people.[4] What hypocrisy then for it to demand of Syria that she release her political prisoners and stop killing her citizens.  People who live in glass houses shouldn’t throw stones.

The international delegations, from some 18 countries, need to send representatives back to observe the final hearing of this case in November 2012 and in the meantime report what they have observed to the UN Special Rapporteurs on Human Rights Defenders and on the Independence of Judges.

I call on the Turkish government to release the lawyers and ensure that they are properly compensated and helped to rebuild their family lives and their professional practices.  There will be further hearings on this case in October and November, and I call on more international monitors to attend these hearings in support of those on trial.[5]

Footnotes

[1] Margaret Owen, a graduate of both Cambridge and the LSE, is a barrister and international human rights lawyer with a focus on women’s rights and access to the justice system. Her particular interest is in the status of widows in developing countries and particularly in those afflicted by armed conflict, civil wars and revolution.  She is the founder and Director of the international NGO Widows for Peace through Democracy and in that capacity regularly holds meetings at the UN Commission on the Status of Women.  She is a member of the UK Bar Human Rights Committee.  She has travelled widely researching gender and human rights issues, and is also a Founding Member of GAPS -UK (Gender Action on Peace and Security). For more than a decade Margaret has been intensely engaged in work to bring about a peaceful solution to the Kurdish issues in Turkey and elsewhere in the region. She has often visited Turkey, to observe trials, to monitor elections, and to provide training to Kurdish women’s associations on how to use the international human rights mechanisms, such as the CEDAW (UN Convention on the Elimination of All Forms of Discrimination against Women); other human rights treaties and conventions; the human rights council and UN Security Council Resolution 1325. For several years she was Women’s Rights Advisor to the KHRP (Kurdish Human Rights Project). She is a Patron of the Peace in Kurdistan Campaign and the campaign’s adviser on Kurdish women’s and children’s human rights. She is well known as a writer, broadcaster, and activist on feminist issues both in the UK and globally.

[2] Raids, arrests and prosecutions against individuals deemed to be affiliated with the KCK, which has been designated an illegal organisation by the Turkish state, have been continuing since 2009. These include a mass trial of 151 Kurdish human rights defenders and political leaders, which began in October 2010, and another at Silivri prison of over 200 defendants, most of whom are members of the Peace and Democracy Party (BDP), which began in June 2012. 35 journalists also accused of being members of the KCK will take place this September 2012.

[3] I have been part of previous delegations supported by Peace in Kurdistan campaign to monitor the trial of 151 political leaders and human rights activists in 2010 and 2011 in Amed (Diyarbakir). View the delegation reports.

[4] The Associated Press carried out a survey in 2011 which showed that of the 35,117 people convicted of terrorist crimes across the world since 2001, 12,089 of those convicts are in Turkey. This figure is significantly higher than the next country on the list, China, which has 7,000.

[5] The dates for the upcoming KCK hearings are as follows:

KCK Aydın Trial (29 defendants including 9 arrestees) in Ozmir: 5 September
Kurdish Journalists’ trial (44 defendants including 36 arrestees) in Istanbul: 10 – 14 September
KCK Main Trial (152 defendants including 104 arrestees) in Amed: 29 September
BDP Politics Academy Trial (205 defendants including 140 arrestees) in Istanbul: 1 – 9 October
KCK Adana Trial (47 defendants including 35 arrestees) in Adana: 22 October
Kurdish Lawyers’ Trial (50 defendants including 36 arrestees) in Istanbul: 6 November
KCK Şırnak Trial (61 defendants including 43 arrestees) in Amed: 2 December

The UK delegates are supported by Peace in Kurdistan Campaign, Haldane Society of Socialist Lawyers, Bar Human Rights Committee, South Lanarkshire UNISON and UNITE, London North West Branch 9708

 

For further information contact:

Margaret Owen: director.wpd@gmail.com

Or

Peace in Kurdistan
Campaign for a political solution of the Kurdish Question
Email:
estella24@tiscali.co.uk
http://www.peaceinkurdistancampaign.wordpress.com
Contacts Estella Schmid 020 7586 5892 & Melanie  Sirinathsingh – Tel: 020 7272 7890
Fax: 020 7263 0596

 

Appendices

Appendix 1.

Open letter to the Turkish Authorities on the arrests of the lawyers in November 2011, 25 November 2011.

 

European Democratic Lawyers (AED-EDL)

European Association of Lawyers for Democracy and World Human Rights (ELDH)

Joint declaration of AED and ELDH

Haarlem, Dusseldorf, Rome, London

25 November 2011

OPEN LETTER WITH URGENT REQUESTS TO THE TURKISH AUTHORITIES

TURKISH PRIME MINISTER RECEP TAYYIP ERDOGAN

TURKISH PRESIDENT ABDULLAH GUL

AND ALL MEMBERS OF THE TURKISH GOVERNMENT

The AED and ELDH , which represent lawyers’ associations in 16 European countries, are united in their deep concern at news of the arrest on one day of 51 Turkish lawyers during raids, which were simultaneously carried out in many Turkish cities and provinces.

The AED and ELDH carry out their work on the basis of the Preamble on the Function of the Lawyer in Society, adopted by the CCBE (Council of the Bars and Law Societies of the European Union).

This provides that every lawyer must serve the interests of justice, as well as the interests of those whose rights and liberties he or she is entrusted to defend.

Respect for the professional function of lawyers is an essential condition for the rule of law and democracy in every society.

These arrests are the latest step following on from the very recent threats by the Turkish prosecutors and courts, to persecute the large number of lawyers who are defending 152 accused in a mass trial in Diyarbakir. This trial is due to be continued on 6 December 2011.

In this trial the lawyers took the principled position that they were not able to defend their clients any further after the Diyarbakir Court ordered that the accused were not permitted to speak their own native, Kurdish language, in their trial.

All the defence lawyers, as a group, and also the Leader of the Diyarbakir Bar, were threatened in strong terms in advance by the Prosecutors, and by the Court itself, that they would be persecuted if they did not immediately continue to defend their clients in the Turkish language.

We respectfully draw the attention of the Turkish authorities to the fact that the arrests and threats constitute grave violations of every human rights treaty to which Turkey is a party.

Furthermore, it would appear that the Basic Principles on the Role of Lawyers, adopted by the UN Congress in Havana in September 1990 do have not been respected at all.

According to these principles, governments are obliged to ensure that lawyers are able to perform all of their professional duties without intimidation, hindrance, harassment or improper interference.

Governments must also guarantee that lawyers do not suffer persecution or threats of persecution or any sanctions for carrying out their duties as lawyers.

Unfortunately, the Turkish Government appears to be acting contrary to these Principles.

Therefore we call upon the Turkish authorities to implement the following measures without delay:

  • the immediate release and reinstatement in their duties as lawyers of all the lawyers who have been arrested or threatened
  • the restoration of the full and free exercise of their independent advocacy role

The AED and ELDH respectfully inform the Turkish authorities that they and their members in 16 European countries will continue to follow the mass trial closely.

The AED and ELDH also urge the Turkish authorities to respond as soon as possible with a full and positive response to the serious matters raised in this letter,

Yours respectfully

Prof. Bill Bowring, President of ELDH

WWW.ELDH.EU

Mr Gilberto Pagani President of AED

WWW.AED-EDL.NET

Mr. Thomas Schmidt, Secretary General of ELDH

Mr Hans Gaasbeek

Vice president of AED

Coordinator of the commission defence for the defence

 

Appendix 2.

Press statement by Margaret Owen and Ali Has, The mass trial of 36 defence lawyers, 20 July 2012.

We, the members of the UK delegation observing the trial, at the High Criminal Court of Istanbul, on July 16-18th, of the 36 lawyers on terror charges, issue this statement:

This was clearly a political trial whose purpose was to repress the Kurdish people and destroy their hopes for obtaining their fundamental rights, for equal treatment before the law and a solution to the conflict through dialogue and peaceful negotiations. It lacked the very basic principles of a Fair Trial. The defendants were never given the full indictments so that they could prepare their cases.  The interviews they held with their client were always in the presence of a Ministry of Justice official, and in any case the conversations were unlawfully recorded and taped, so that there was no confidentiality.  These lawyers have been in prison for the last eight months, when, according to international standards, they should have been bailed.

The defendants are lawyers representing the Kurdish leader, Abdullah Ocalan, who following his kidnap twelve years ago has been incarcerated on the Island of Imrali. It is an absolute right for anyone accused of a crime to be defended and these lawyers were simply doing their job.

Although the authorities were well aware that there would be many lawyers including those from international delegations, attending the trial, as well as the relatives of the accused, they rejected the request to hear the case in the large conference room. Instead the trial took place in a very small courtroom, without air conditioning and with poor audio equipment.  It was often impossible to hear, let alone see, what was going on. The proceedings were rowdy, at times either explosive or lapsing into near farce, as the defendants’ lawyers argued that the court itself was illegal and the judge had no right to try the case, for the proceedings and charges were a breach of the constitution.

Turkey has imprisoned more lawyers than any other country in the world.  While this trial demonstrates the State’s determination to suppress its Kurdish population, using the courts to endorse criminal sanctions, its brazen attack on lawyers has revealed dramatically the grave defects in its justice system which will be of concern to all Turkish citizens, not just the Kurds.  Also the injustices and irregularities of this trial have united the entire legal profession in Turkey.

This trial is important because it will determine whether the deadlock on the Kurdish problem will be resolved, or will continue. It also illustrates how far Turkey has to go before it can claim to be a democratic country with respect for the Rule of Law.

On Wednesday the 18th July nine out of 36 jailed lawyers of Kurdish people’s leader Abdullah Öcalan have been released on conditions of judicial control and ban on leaving the country. The inference is that the Judge wished to demonstrate, in view of the large numbers of international observers present, that the system was capable of delivering justice. But no one should be deceived by these acquittals.  At the least and in accordance with international standards, all 36 lawyers should have been bailed, but this was refused again this week.

We, as independent observers, demand that the detained lawyers are released and the prosecutions against them are discontinued with immediate effect; that their legal status as defence lawyers is reinstated and any restrictions on their ability to practice are lifted.

*) Margaret Owen OBE, barrister & Ali Has, Solicitor-Advocate

NOTE:

The UK delegates are supported by Peace in Kurdistan Campaign, Haldane Society of Socialist Lawyers, Bar Human Rights Committee, South Lanarkshire UNISON and UNITE, London North West Branch 9708

Appendix 3.

FIDH – Worldwide Human Rights Movement joint statement from international delegates to the trial, 20 July 2012.

International Federation for Human Rights (FIDH); Union Internationale des Avocats (UIA) Conférence Internationale des Barreaux de Tradition Juridique Commune (CIB);; Fédération des Barreaux d’Europe (FBE); European Democratic Lawyers (EDL / AED); European Lawyers for Democracy and Human Rights; International Association of People’s Lawyers Solicitors International Human Rights Group (UK); Lawyers for Lawyers (Netherlands); Lawyer’s Rights Watch Canada (LRWC); Democratic Lawyers of Switzerland Fair Trial Watch (Netherlands); Progress Lawyers Network (Belgium); Lawyers Without Borders (Sweden); Conseil National des Barreaux (France); Netherlands Bar Association; Conférence des Bâtonniers de France et d’Outre-Mer Fédération Nationale des Unions de Jeunes Avocats (FNUJA); Syndicat des Avocats de France (SAF); Berliner Anwaltskammer; Ordre français des Avocats du Barreau de Bruxelles; Barreau de Grenoble; Barreau de Montpellier; Barreau de Paris; Barreau de Rennes; Institut des Droits d l’Homme du Barreau de Bruxelles; Institut des droits de l’Homme du Barreau de Grenoble; Institut des Droits de l’Homme du Barreau de Montpellier.

 

From July 16 to 18, 2012, our organisations attended in Istanbul the opening of the trial indicting 46 lawyers, 3 legal staff and 1 journalist.

We recall that identifying a lawyer with his client amounts to an unacceptable criminalization of the lawyers’ profession.

Our organisations denounce a mass trial that targets lawyers, who seem to be identified with their clients or their clients’ political opinions. We are concerned by the resort to provisional detention against 36 of the accused lawyers, as well as by the fact that all requests for their release from pre-trial detention have been systematically rejected for 8 months, without providing any reasons.

The defence lawyers raised multiple procedural irregularities and introduced several petitions, pointing notably to:

–       the lack of jurisdiction of the Heavy Penal Court to entertain these cases ;

–       the lack of definition of the constitutive elements of the charges ;

–       the lack of individualisation in the proceedings;

–       the violation of the right to cross-examine the main witness presented by the Prosecution.

Some petitions were dismissed, for the most without providing any reasons and while decisions on the others will be rendered at the next hearing.

It was further noticed that the material conditions in which the hearings were held are not worthy of the principles which govern the right to a fair trial:

–       the capacity of the courtroom prevented many of the defendants’ lawyers, as well as their families, to attend the hearing;

–       the lawyers who could access the courtroom had to work in particularly precarious conditions, which were incompatible with the normal practice of defence.

Our organisations take note of the fact that 9 of the sued lawyers were provisionally released after these three days of hearings. We nevertheless express our concern about the fate reserved to the 27 lawyers who remain in detention, and affirm our intention to follow with the utmost attention the development of these proceedings until their conclusion.

We are also concerned by the decision of the Court to resume the hearing only on November 6, 2012, and recall that the European Convention on Human Rights compels Turkey to adopt a decision within a reasonable time frame – especially when the defendants are detained – in order not to unnecessarily extend their detention.

Our organisations thereof intend to express, at the end of these three days of hearings, their deepest concern about the way the trial is conducted, as well as about the respect of the fundamental guarantees of the rights of the defence. They call upon the Turkish authorities to take prompt action in order to remedy the previously noticed irregularities, as well as to ensure that the rules of a fair trial are complied with.

 

 

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