Margaret Owen observes 6th hearing of the KCK trial of lawyers, 17 September 2013

This week a UK delegation of six barristers and solicitors travelled to Istanbul to observe the sixth hearing of the KCK trial of lawyers, a major anti-terror trial in which 46 lawyers representing Kurdish leader Abdullah Ocalan are being tried on mass for their association with him as their client.

In this hearing the final 16 defendants whose case had not yet been heard were able to present their defence. None were released on bail, and so must endure continued imprisonment on top of the 22 months they have already spent in pre-trial detention until the next hearing, scheduled for 19 December.

The delegates included international human rights barristers Margaret Owen OBE, Hugo Charlton, and Mark Jones of St Ives Chambers, as well as Tooks Chambers’ Bronwen Jones and Law Society Human Rights Committee member, Tony Fisher and Ali Has, solicitor and representative of the Law Society Human Rights Committee International Action Team.

We will bring you reports and statements by the delegates in the near future. In the meantime, Margaret Owen has written three blog posts giving her observations of the highly political hearing, which are below.

All of our delegates reports and statements on the trials, as well as our actions here in the UK to bring the issue to wider attention, can be found on the International Observation of the KCK trial of Kurdish Lawyers page.

Blog 1: Monday 16th September 2013

We, five UK lawyers forming the UK delegation to observe and report
on the trial of the Kurdish lawyers, have once more arrived in sunny
Istanbul, to attend its 6th hearing, tomorrow, Tuesday.

This evening we will be gathering, with the other lawyer delegations
from several European countries – notably, France, Germany, the
Netherlands – at the offices of the Istanbul Bar Association to be
briefed by the defendants’ lawyers on developments since we were last
here in June.  And to learn from them what are the most likely
outcomes from the proceedings in the Prison Court at Silivri Prison.
A long hot  two hour drive from the city.

The 45 Kurdish lawyers, whose client is the Kurdish leader, Abdullah
Ocalan (incarcerated for the last 13 years on the island of Imrali)
are charged under the anti-terror law, accused of being members of an
underground terrorist “Leadership Committee”‘ headed by the Kurdish
leader. But, as I have written in previous blogs, these hearings are
in fact political trials; the evidence is extremely flimsy, indeed, as
the defendants’ lawyers continually demonstrate, totally fabricated.

What is deeply shocking about these trials, and common to so many
trials under the Turkish judicial system, is the common practice of
pre-trial detention.  It is now nearly 2 years since these lawyers
were arrested and imprisoned. Although over a long series of short
hearings, several lawyers are bailed each time, still 16 lawyers
remain in prison.

Again and again, at each hearing (only one day is allowed for this
case and adjournments are at 3 monthly intervals), the lawyers
defending the lawyers argue for the immediate release on bail of all
those in detention, and they will argue again on the same grounds tomorrow.

The use of pre-trial detention has until now been a side issue in the
hearings.  We predict that tomorrow the lawyers’ lawyers will make it
a central one, and ever more robustly demand the release of all the
remaining detainees, either on bail, or, better still, the dropping of
all the charges and the acquittal of all the 45, so that they can
return to their professional work, and be again united with their
families.

But this week the geo-political scenario is hugely changed, and may
well have some bearing on how the judge, of course a servant of the
State and the AKP government, will determine this long on-going case.

The oppression, arrests, detentions of the Kurdish lawyers
representing the Kurdish leader, the detention of over 10,000
political prisoners, clearly breach international human rights laws.
But right now the AKP government is supposed to be in peace talks with
Ocalan, and on his instructions, the PKK
has started to withdraw its militias back to Northern Iraq.  If
Turkey’s Prime Minister Erdogan is serious about making peace, then
his party would have to implement their side of the agreement: inter
alia, to release the political prisoners; to reform, in consultation
with the BDP and Kurdish civil society organisations, the
Constitution; to change the electoral “threshold”, permit education in
the Kurdish language, and curb the excessive oppressiveness and
violence of its police force that has acted so viciously in the last
months against peaceful protesters across Turkey. Turkey also needs a
total overhaul of its medieval justice system which is quite incapable
of delivering justice and where judges and prosecutors are far from
independent.

But Istanbul today already looks a different place to the city we were
in last June. One is aware of the many Syrian refugees among the
crowds.  Also of the change in the behaviour, attitudes of the
remaining protestors as a consequence of the increased violence and
oppressive practices of the police.

They are using pepper-spray rather then water-cannon to clear the
streets of those protesting the killing of  22 year old Ahmet Atakan
on September 10th in Antakya. We have learnt that there has been a
clear shift in policing, with “scorpions” (small tank-like cars from
whose roofs an armed policeman can shoot) now able to chase
protestors into small side streets and residential areas.

We all hope that the peace process will not be interrupted.  In spite
of the complexities of the Syrian crisis and Turkey’s problem in
relation to the Syrian Kurds, attacked by both the Assad regime and
many of the diverse groups in the Syrian opposition supported by
Turkey.

I realise as I write that these contextual factors are not legal, but
political but they do have a bearing on how the state-employed judge
and prosecutor will decide tomorrow’s trial, so I cannot avoid these
References. This is after all a Political Trial.  Lawyers in these circumstances
are made powerless, and discredited.  Which is why it is so important
that we have international lawyer delegations to observe and report as
we will do tomorrow.

 

Blog 2: Monday evening, September 16th 2013

At the office of the Istanbul Bar, this evening, the international
delegations were addressed by the defence lawyers and from one of the
bailed lawyer defendants about what we can expect from the court
tomorrow.

Only one of  16 detained defendants has not yet had his defence put
before the court.  His lawyer will argue his defence first, followed
by the presentation of the defences of 11 bailed defendants whose
defences still need to be heard.  The defences of the remaining 34
lawyers have been dealt with, although the judge has given no
indication of his verdict.

Once the defence lawyers have stated their case, they will again
repeat the request they have made in previous hearings:  that the
appearance in the court of the chief witness, Abdullah Ocalan is
speedily facilitated. Up till now the judge has postponed answering
this question, so the lawyers will repeat their demand in the
strongest terms at the close of the proceedings.

According to defence lawyer, Rezzan Sarcj, the defence team will also
challenge the new law regarding Kurdish interpreters and translators
as being “unconstitutional”, on the grounds that it requires that
Kurdish defendants “pay” for these services.  In all other cases where
interpreters are required in Turkey’s courts the service is free, and
the service providers are selected from a court list.  The defence
will asking for leave to make an application to the Constitutional
Court to change the law on this issue.

Several of the imprisoned lawyers are, we heard, refusing to pay for translators.  At the June hearing the new law had not been formerly enforced,
but translators were appointed as a temporary measure. There is
likely to be some heated arguments about the discrimination in this
recent legislation. The President of the Court had, it is said,
earlier agreed that the defendants could bring their own interpreters
to the hearings.  This controversy needs to be resolved if the trial
is to proceed at all with at least a tiny semblance of fairness.

But, apart from the question of translation and interpretation, there
are so many other defects in the procedures that deprive the
defendants of justice.

No new evidence has been submitted by the Prosecutor to support the
indictments; no further witnesses have been called. There has been no
due process. And since this Judge refuses to give more than one day to
the hearings, it is unlikely that the trial will be completed
tomorrow.  So yet further adjournments.

The economic and social plight of the defendants is acute.  Those on
bail are prohibited from practicing their profession, and until
recently have been banned from leaving the country.  Where the bail
conditions have been relaxed, the lawyers are not allowed to act in
”political” cases.  Who decides what cases are political and which are
not is unclear.  In Turkey everything is political.

The bailed lawyers also speak of continual police harassment, bugged
telephone lines, and other forms of interception of communications
with colleagues, clients, friends and family. They say they are
”followed” in all their ordinary activities.
Potential or former clients are also threatened by the police.

With the government making no moves to play their promised part in the
peace process, although this week Erdogan has declared he will
announce a “reform package” to improve relations with its Kurdish
population, it seems unlikely that the Judge will respond in any
positive way to the defence arguments.

There could be yet another stalemate. The case dragging on and on,
along with other trials indicting lawyers in Diyarbakir as well as in
Istanbul.


If only Penal Code Article 304 would be repealed, all the political prisoners
could be released.

We will see what happens tomorrow.

 

Blog 3: Tuesday September 17th 2013

Some 30 lawyers from seven European countries (UK, France, Germany,
Greece, Holland, Spain, Switzerland), crowd into buses at Taksim
Square in Istanbul, taking us to the now familiar huge court house in
the Silivri prison complex.  We surrender our passports, mobile
phones, iPads, and are screened to enter the building that is heavily
guarded by armed Jandarma.

We meet again the many relatives of the defendants, men and women of
all ages. At this 6th hearing, unlike the previous one, there are
hardly any small children.  But always attending is the young son of
two defendants: his father is one of the 16 lawyer defendants who have
been in detention since November, 2011, while his lawyer mother, after
a short period in prison last year, was bailed on compassionate grounds
for the sake of the child and today was speaking in her own defence.

The courtroom is vast, almost larger than an Olympic swimming pool.
But we, the observing international delegation and the relatives are
confined in the section at its very back so that it is impossible to
see (unless one was equipped with binoculars) the judge, his two
assistant judges, the prosecutor, the lawyers or the defendants. They
are all so far away from us. Except that at the start, before and
after the intervals, and at the end of the hearing those accused move
up to the back end of their barrier, before being marshalled down the
steps to the cells, to wave to their family members and friends. And
to us. Several of the lawyer defendants we know well, we too wave
back to them energetically to demonstrate our support and concerns.

We are, however, partially assisted by two huge screens which enable
us to see the faces of those defendants and lawyers addressing the
Judge. But the camera is never turned on the Judges and Prosecutors
as it was last year.

The judge is so difficult to see at this great distance that we
cannot note his body language or expression, when he apparently rises
in wrath – as he does during this hearing – and gives vent to his
anger at particular defence requests, the repeated criticism of his
court, the Turkish justice system, and the political persecution of
its Kurdish population in general. The positioning of the
international delegation so far from the action of the court, is seen
by some of us as a professional discourtesy, and more importantly, a
failure to acknowledge the legitimate concerns of the international
legal community.

However, the defence advocates and the defendants who are on bail
warmly welcomed us in the Advocates’ room, and formerly in the court.
Several of them, during the proceedings, thank us for not abandoning
them in their struggle for justice and the right to undertake their
professional work in freedom and without harassment.

It is announced that there is now not only a new Prosecutor, but also
two new assistant judges (one of whom is a woman). We have concerns
regarding these appointments made at such a late stage in the
proceedings. Will the Prosecutor be sufficiently informed, having not
been at the previous hearings, to make relevant legal submissions on
the evidence and has he had adequate time to absorb all the details of
the defence arguments? The appointments of two new judges, also
concerns us for similar reasons. Is this just another ploy to delay the proceedings further?

Of the 46 lawyers on trial under the anti-terror laws, accused of
being members of a so-called “Leadership Committee”, which is said to form part of larger KCK network affiliated to the PKK in the mountains and thereby to Abdullah Ocalan, only 28 are present in court, and hold up  their hands as their names are read out in court. The other 18 having made their
defences did not appear.

All the remaining 16 defendants in detention and their lawyers are
finally able to argue their cases. The main requests to the Judge,
which have been constantly repeated throughout the recent months are
that:

a) all the charges to be dropped on the grounds that there is no case to answer.

b) if this is refused, the remaining 16 defendants still held in
custody to be released on bail.

c) the production of the chief witness, Abdullah Ocalan, from his
prison cell on Imrali Island, to this court. (This request has been
made at each of the 6 hearings, but the judge always postponed his
response), and

d) Submissions are made on the issue of payment for translation services,
with applications being made to refer the issue to the Constitutional Court as
was suggested last night at the pre-trial meeting we had with the
defence advocates.

Throughout the long hot day defendants and their lawyers, sometimes
speaking in Kurdish (as they are now permitted to with translators),
and at other times in Turkish, challenged the collective indictments
of all the defendants.  They declare they were acting professionally
as Ocalan’s lawyers, and never as his agents in the “fictional “
organisation dreamt up by the police and prosecution and named the “leadership
committee”. They refute the accusations that the lawyers were
messengers of their client, conveying terrorist-linked messages to the
PKK, and plotting against the interests of the Turkish state.

Again and again, it was argued that there was no evidence for any of
the charges. That in any case the great bulk of the dossier accusing
the defendants of crimes was based on unlawful interceptions of
e-mails, telephone conversations, the unlawful seizure of computers,
hard drives, confidential and privileged correspondence and files
relating to the lawyers’ work in relation to their obligations as
lawyers to represent their clients. The most innocent of overheard
eavesdropped telephone conversations were given the most bizarre and
sinister interpretations. Even had this information been admissible
as evidence, the lawyers argued that it would still not have proved
any of the Prosecution case.  It was argued that 99% of the
prosecution case, was simply highly subjective police opinions.

Occasionally the Judge asked a question. For example, he addressed
one of the defendants “why did you go to visit Ocalan in July, 2009?
What legal basis had you for going to the island? What did you talk
about?” Such questions seemed pointless since the authorities had
bugged and overheard almost every conversation their prisoner had held
with his lawyers during the period they were still permitted to visit
him in his Island cell. Besides, conversations between lawyers and
their clients should be confidential and privileged.

One of his lawyers, a women advocate, answered “I visited him as
his lawyer. I naturally had concerns about all aspects of his life in
such a long incarceration including his physical and mental
health. These rights are, after all, enshrined in the ECHR. We took no
orders nor did we communicate any orders to any illegal
organisation.”

Other defendants highlighted the hypocrisy in criminalising all
contacts and conversations they had with the Kurdish leader, who was
their client, while representatives of the government, and with its
permission, BDP members could visit him without censure!

The lawyers attempted to draw the judge’s attention to the Turkish
domestic law – the Turkish Lawyers’ Codes which define the roles and
rights of lawyers. They suggested that he should not be posing the
questions he asked, and that the way he manages this trial shames the
Turkish justice system in the eyes of the international community, and
the legal profession across the world.

At this point, the judge rose from his seat and responded in fury “You cannot speak like that to me”. In a similar outburst he shouted
at one of the advocates, “Sit in your place. Stop interrupting me!”
And in a further “contretemps” when criticised for his refusal to
respond to the defence arguments or key requests he again exploded,
shouting “We will not be taught a lesson here! You may not comment
on my approach or my manners in this court!”

Throughout the day there were inevitably long speeches decrying the
procedures of the police, prosecutor and judge as being “fascist,
with the characteristics of a police state”, and several of the
lawyers launched into the history of Turkey’s persecution of its
Kurdish citizens over nearly a hundred years. References were made to
the killings, the disappearances, the forced evictions from mountain
villages, the seizure or destruction of homes, farms, livestock and
property, the ban on language rights, culminating in these violent
actions to destroy even the rights of Kurds to be legally represented
by placing so many Kurdish lawyers in detention. For there are other
trials of Kurdish lawyers going on contemporaneously with this one in
Diyarbakir and in Istanbul.

But, to the dismay of all the defendants, their lawyers, the relatives
and us, the international delegation, when the Judge returned after
a short recess to give us his decision, there was simply a short “No”.

“No” to the request to have Ocalan brought to the court as the key
witness for the defence. “No” to the dropping of all charges for
lack of evidence. And “No” to the release on bail of any of the 16
lawyers in pre-trial detention for the last 22 months.  The case is
now adjoined till December 19th.

Contrary to the requirements of Article 6 of the ECHR a judge must
give reasons for his decisions. Here no reasons were given, which denies the defence the opportunity of formulating any grounds of appeal. The
Prosecutor has not made any legal submissions on the evidence, apart from addressing the court for no more than 15 seconds and requesting the continued incarceration of the defendants and dismissal of defence requests.

There has been such a failure of due process, that, on so many grounds, that
this was yet again another example of an “unfair trial” breaching all
the norms of standard practice under Turkish, international, and
European law. The practice of pre-trial detention, without any
reasons, is also a violation of human rights.

It is important that we, the international lawyer delegations, return
yet again to the Siliviri court in December so that these injustices
are widely reported, and Turkey is made fully aware of its failings to
comply with international standards of justice.

We can only hope that by then the peace process will have resumed, in
spite of the present problems that have halted it, and that progress
in this sphere will result in the judge, finally acknowledging there
is no evidence to support the indictments, will release all the
lawyers so they can return to practice in their profession in freedom
and without fear.

Margaret Owen

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