Judgement in the Belgian Court of Appeal. Status of the PKK.

Unofficial translation of a judgement given by the Court of Appeal of Brussels on 8 March 2019 deciding that the PKK was a party in a non-international armed conflict with the Turkish State and that therefor international humanitarian law applied and not the terrorism provisions of the Belgian Criminal Code

Disclaimer:
1. This Judgement was translated by the Defendants in the case to the best of their abilities and is therefore not an official translation of the Dutch text of the judgment. The full original Dutch text can be obtained on simple request by contacting jan.fermon@progresslaw.net.
2. The judgment is not final on 7 April 2019 as the Federal Prosecutor has appealed the decision before the Court of Cassation.

For more information:

jan.fermon@progresslaw.net

Nr. of decision: 2019/939
IC/Folio: 555
Decision of the Court of Appeal of Brussels
Indictment chamber
Considering the case file of the examining magistrate in the Dutch-speaking Court of First Instance Brussels … (113/2008 – 121/2008 – 30/2009), at the charge of:

1. U
2. K
3. A
4. U
5. A
6. O
7. K
8. E
9. S
10. H
11. M
12. T
13. A
14. T
15. I
16. G
17. G
18. K
19. A
20. S
21. S
22. O
23. T
24. B
25. M
26. E
27. A
28. D
29. A
30. R
31. Y
32. (…)
33. E
34. B
35. Y
36. A
37. C
38. A
39. S
40. Z
41. D

accused,

and on account of:

THE TURKISH STATE, represented by the Minister of Foreign affairs of Turkey, represented by …, ambassador of the Republic Turkey, with offices at 1000 Brussels, Montoyerstraat 4,

Civil Party,

Considering:

– The Civil Party statement of 8 June 2011, for and in name of THE TURKISH STATE, represented by the Minister of Foreign affairs of Turkey, represented by …, ambassador of the Republic Turkey, plaintiff, aforementioned.

– The decision of the Investigative Chamber of the Dutch-speaking Court of First Instance Brussels of 3 November 2016 orders:
– To join the files FD35.98.634/06, FD35.98.502/07 and FD35.98.54/09;
– To dismiss the charges against the first up to and including the forty second accused;
– To discharge the examining magistrate from carrying out further investigation into the unknown perpetrators, in the closing motion of the Prosecution referred to as “X”
– To charge the costs of the judicial procedure, estimated at 381.930,00 EUR against the State.

– The appeal lodged by Master …, lawyer, for and in name of The Turkish State, plaintiff, on 15 November 2016 against aforementioned decision of the Investigate Chamber.
– The appeal lodged by …, federal magistrate, on 8 November 2016 against aforementioned decision of the Investigative Chamber.
– The decision of the Court of Appeal of Brussels, Indictment Chamber, of 14 September 2017.
– The cassation appeal brought by the Federal prosecutor on 26 September 2017 against the aforementioned decision.
– The cassation appeal brought on 28 September 2017 by …, for and in name of the Turkish State, plaintiff, against aforementioned decision.
– The decision of the Court of cassation of 13 February 2018 in which the Court:
– Nullifies the challenged decision of the Indictment Chamber, in so far as it orders dropping the charges of the facts that are subject of the indictment A. Concerning accused 1 up to and including 6, 8 up to and including 16 and 18 (claim of the Federal prosecutor of 15 December 2014 – FD.35.98.54/2009 – OR 30/09) and 37, 38 and 42 (claim of the Federal prosecutor of 11 June 2015 – FD.35.98.634/06 – OR 113/08 – FD.35.502/07 – OR 121/08) and B concerning the accused 1, 7, 17, 19 up to and including 31 and 33 up to and including 36 (claim of the Federal prosecutor of 15 December 2014 – FD.35.98.54/2009 – OR 30/09) and 39 up to and including 41 (claim of the Federal prosecutor of 11 June 2015 – FD.35.98.634/06 – OR 113/08 – FD.35.502/07 – OR 121/08);
– Nullifies the challenged decision of the Indictment Chamber in so far as it orders dropping the charges concerning the facts subject to indictment E with respect to the accused 30.
– Rejects the appeals of cassation for the remainder
– Refers the thus limited case to the Court of Appeal of Brussels, Indictment chamber, composed differently.

Considering the shipping proofs of the convocation by registered mail of 5 March 2018 to the second until the seventh, ninth until thirteenth, fifteenth, seventeenth until twenty seventh, twenty ninth until thirty seventh, forty until forty first accused and to the plaintiff, and by fax of the same date to the first, eight, thirteenth, fourteenth and twenty eight accused on their chosen residence, and to the third, fourth, sixth, eight, ninth, tenth, twelfth, fourteenth, sixteenth, eighteenth, twenty sixth, twenty eight, twenty ninth, thirty third, thirty eight, thirty ninth and forty second accused, through the public prosecutor in Brussels, Portalis – Quatre Brasstraat in 1000 Brussels, and to the respective counsellors, to appear at the session of the Indictment Chamber of this Court of 19 March 2018.

* *

Considering the minutes of the session of 19 March 2018 in which a filing schedule was decided and the case was postponed to the session of 13 September 2018
* *

Given that the third and second accused declare not to speak Dutch, the president appoints, as interpreter (Kurdish/Dutch), …, who swears the following oath: « I swear that I will perform my duties in good conscience, accurately and honestly » .

Heard in the session of 13 September 2018:

– …, federal magistrate, in his report and claims.
– …, attorney of the bar of Leuven, in his means on behalf of the Turkish State, plaintiff. He declares to fully endorse the claim of the Federal Prosecution Office as presented today. He submits a document.
– …, attorney of the bar of Dendermonde, in his means of defence on behalf of the 31st (…) and 34st (…) accused.
* *

The case shall be continued in the session of 27 September 2018 – 14 p.m.

* *

Given that the second (…) and third (…) accused declare not to speak Dutch, the president appoints, as interpreter (Kurdish/Dutch), …, who swears the following oath: « I swear that I will perform my duties in good conscience, accurately and honestly ».

Heard in the session of 27 September 2018:
– …, federal magistrate, in his report and claims.
– …, attorney of the bar of Brussels, in his means of defence on behalf of the 30th accused (…).

* *

The case shall be continued in the session of 11 October 2018 – 14 p.m.

* *

Given that the second (…) and third (…) accused declare not to speak Dutch, the president appoints, as interpreter (Kurdish/Dutch), …, who swears the following oath: « I swear that I will perform my duties in good conscience, accurately and honestly ».

Heard in the session of 11 October 2018:
– …, Federal magistrate, in his report. He presents summary conclusions and a collection of documents.
– …, attorney at the bar of Brussels, in his means of defence on behalf of the 30th accused (…).
– …, attorney at the bar of Brussels, in his means of defence on behalf of the 4th accused (…). Hereby they also use film fragments.

* *

The case shall be continued in the session of 25 October 2018 – 14 p.m.

* *

Given that the second (…) and third (…) accused declare not to speak Dutch, the president appoints, as interpreter (Kurdish/Dutch), …, who swears the following oath: « I swear that I will perform my duties in good conscience, accurately and honestly ».

Heard in the session of 25 October 2018:
– …, federal magistrate, in his report.
– …, attorney at the bar of West-Flanders, in his means of defence on behalf of the 11th accused (…). He submits a document.
– …, attorney at the bar of Brussels, in her means of defence on behalf of the 21st accused (…) that she assists.
– …, attorney at the bar of Brussels, in her means of defence on behalf of the 2nd (…) and the 3rd (…) accused that she assists.
– …, attorney at the bar of Brussels, in his means of defence on behalf of the 4th accused (…).
– …, attorney at the bar of Ghent, in his means of defence on behalf of the 30th accused (…).

* *

The case shall be continued in the session of 17 January 2019 – 9 a.m.

* *

Given that the second (…) and third (…) accused declare not to speak Dutch, the president appoints, as interpreter (Kurdish/Dutch), …, who swears the following oath: « I swear that I will perform my duties in good conscience, accurately and honestly ».

Heard on the session of 17 January 2019 – 9 a.m.:
– …, attorney at the bar of Ghent and …, attorney at the bar in Brussels in their means of defence on behalf of the 30th accused (…). … submits a collection of documents.
– …, attorney at the bar of Antwerp, in his means of defence on behalf of the 17th accused (…);
– …, attorney at the bar of Dendermonde, in his means of defence on behalf of the 31st (…) and 34th (…) accused
– …, attorney at the bar of Brussels, in her means of defence, on behalf of the 2nd (…), 3rd (…), 8th (…), 10th (Haj-Ahmadi), 14th (…), 18th (…), 23rd (…) accused. She refers to the conclusions lodged at the Registry of the Court of Appeal of Brussels on 30 November 2018.
– …, attorney at the bar of Brussels, in her means of defence, on behalf of the 20th () and 22nd () accused. She refers to the conclusions lodged at the Registry of the Court of Appeal of Brussels on 30 November 2018.
– …, attorneys at the bar of Brussels, in her means of defence, on behalf of the 27th () accused. She refers to the conclusions lodged at the Registry of the Court of Appeal of Brussels, on 30 November 2018.
– …, attorneys at the bar of Brussels, in her means of defence, on behalf of the 37th () accused.
– …, attorney at the bar West-Flanders, in his means on behalf of the 11th accused (…). He presents an additional document.
– …, federal magistrates, in their report and claim. … submits a document.
– …, Federal magistrate, in his report and claim. Hereby he also uses film fragments.

* *
The case shall be continued in the session of 17 January 2019 – 14 p.m.. ·

* *

Given that the second (…) and third (…) accused declare not to speak Dutch, the president appoints, as interpreter (Kurdish/Dutch), …, who swears the following oath: «I swear that I will perform my duties in good conscience, accurately and honestly ».

Heard on the session of 17 January 2019 – 14 p.m.:
– … submits a document, after having read the entire text out loud, with request to consider the text as being acted on the session sheet.
– …, Federal magistrate, replicates and argues that he hasn’t acknowledged that evidence 1009857 wasn’t or isn’t available for consultation for the defence and mentions the code: “keke”, that apparently the defence has never tried to consult this piece and didn’t mention damage of interests.
– The plaintiff supports this position.
– …, attorney at the bar of Brussels in his means of defence on behalf of the 30th accused (…).
– …, attorney at the bar of Brussels, in his means of defence on behalf of the 4th accused (…).
– The Public Prosecutor’s Office submits 1 CD-rom, he refers to his conclusions lodged at the Registry of the Court of Appeal of Brussels, on 30 November 2018.
– …, attorney at the bar of Ghent, in his means of defence, on behalf of the 30th (…) accused.
– Sir … (3rd accused) in his means. He submits a conclusion.
– Sir … (2nd accused) in his means.

* *

1. The current saisine of the Indictment Chamber.

Without having been quashed on these points, the Court of Appeal of Brussels, Indictment Chamber has, by the decision of 14 September 2017:
• Declared admissible the appeals of the civil party and the federal prosecutor against the contested decision of the Investigative Chambers of 3 November 2016,
• Determined that de Investigative Chamber has justly joined the files FD.35.98.54/09, FD.35.98.634/06 and FD.35.98.502/07,
• The second ( …) and the third (… ) accused have been declared dismissed from all charges concerning indictment C1,
• The second ( …), the third (… ) and the twenty eight (…) have been declared dismissed from all charges concerning indictment C2,
• The second ( …), the third (… ), the sixth (…), the thirthy fifth (…) and the thirty sixth (…) have been declared dismissed from all charges for indictment C3,
• The second ( …) has been declared dismissed from all charges concerning indictment C4,
• The second ( …) and the third (… ) have been declared dismissed from all charges concerning indictment D,
• The thirty second (STERK PRODUCTIÖNS nv) has been declared dismissed from all charges concerning indictment E.

The Court, Indictment Chamber differently composed, shall take its decision within the limits of cassation and the referral, as defined within the enacting terms of the decision of the Court of cassation of 13 February 2018.

The Federal prosecutor demands as means of conclusion the correction of a number of indictments as defined in closing motion of the Prosecution of 27 February 2018. The claimed corrections are justified. An identical correction, concerning the end of the delict period, also needs to be passed for indictment E.

Thus, at this point of the proceedings a decision should be taken regarding the motion of the Federal prosecutor, as supported by the plaintiff, for referral of:
• The first (…, at least in the period of 1 December 2007 up to and including 30 June 2008), the second (… , at least in the period of 1 May 2006 up to and including 15 December 2014), the third (… , at least in the period of 1 May 2006 up to and including 15 December 2014), the fourth (… , at least in the period of 1 November 2006 up to and including 30 November 2011), the fifth (…, at least in the period of 1 March 2007 up to and including 30 November 2009), the sixth (…, at least in the period of 1 April 2008 up to and including 31 January 2010), the eighth (…, at least in the period of 1 September 2007 up to and including 31 December 2008), the ninth (…, at least in the period of 1 May 2007 up to and including 4 March 2010), the tenth (…, at least in the period of 1 June 2007 up to and including 31 March 2009), the eleventh (…, at least in the period of 15 November 2007 up to and including 4 March 2010), the twelfth (…, at least in the period of 17 October 2004 up to and including 4 March 2010), the thirteenth (…, at least in the period of 1 September 2004 up to and including 31 March 2010), de fourteenth (…, at least in the period of 1 April 2008 up to and including 30 June 2009), the fifteenth (…, at least in the period of 1 September 2007 up to and including 30 April 2008), the sixteenth (…, at least in the period of 1 January 2006 up to and including 4 March 2010), the eighteenth (…, at least in the period of 1 until 31 March 2007), the thirty seventh (…, at least in the period of 1 September 2006 up to and including 20 May 2009) and the thirty eighth (…, at least in the period of 1 September 2006 up to and including 20 May 2009), to:

Indictment A:

In the judicial district of Brussels and/or elsewhere in the state, among others in the judicial district of Antwerp and/or in connection therewith elsewhere abroad, among others in Turkey, at least at the time of the mentioned dates or periods,

In violation of article 139 and 140, § 2, of the Criminal Code, having been a directing person of a terrorist group, being a structured organisation of more than two people that has existed for some time and that acts in mutual agreement to commit offences of a terroristic nature, as mentioned in article 137 of the Criminal Code;

• The first (…, at least in the period of 1 July 2008 up to and including 15 December 2014), the seventh (…, at least in the period of 1 April 2007 up to and including 31 May 2008), the seventeenth (…, at least in the period of 1 October 2004 up to and including 4 March 2010), the nineteenth (…, at least in the period of 1 March 2007 up to and including 30 November 2009), the twentieth (…, at least in the period of 1 November 2007 up to and including 28 February 2008), the twenty first (…, at least in the period of 1 January 2008 up to and including 30 May 2008), the twenty second (…, at least in the period of 8 December 2007 up to and including 1 August 2008), the twenty third (…, at least in the period of 8 January 2004 up to and including 30 October 2008), the twenty fourth (…, at least in the period of 5 February 2010 up to and including 30 April 2011), the twenty fifth (…, at least in the period of 1 January 2009 up to and including 4 March 2010), the twenty sixth (…, at least in the period of 1 January 2008 up to and including 30 June 2009), the twenty seventh (…, at least since 1 December 2007 up to and including 5 March 2010), the twenty eighth (…., at least in the period of 8 June 2004 up to and including 15 December 2014), the twenty ninth (…, at least in the period of 1 January 2009 up to and including 4 March 2010), the thirtieth (…, at least in the period of 8 January 2004 up to and including 15 December 2014), the thirty first (…, at least in the period of 8 January 2004 up to and including 28 February 2009), the thirty third (…, at least in the period of 1 February 2009 up to and including 15 December 2014), the thirty fourth (…, at least in the period of 14 May 2008 up to and including 15 December 2014), the thirty fifth (…, at least in the period of 19 August 2009 up to and including 15 December 2014), the thirty sixth (…, at least in the period of 19 August 2009 up to and including 15 December 2014), the thirty ninth (…, at least in the period of 1 September 2006 up to and including 20 May 2009, the fortieth (…, at least in the period of 1 September 2006 up to and including 20 May 2009) and the forty first (…, at least in the period of 1 September 2006 up to and including 20 May 2009), to:

Indictment B:

In the judicial district of Brussels and/or elsewhere in the state, among others in the judicial district of Antwerp and/or abroad, amongst others in Turkey, on the mentioned dates,

In violation of article 139 and 140, § 1, of the Criminal Code, having participated in any activity of a terrorist group, being a structured group of more than two persons, established over a period of time and acting in concert to commit terrorist offences, as mentioned in article 137 of the Criminal Code, albeit by supplying information or material resources, or by funding its activities in any way, with knowledge of the fact that such participation contributes to the commission of a crime or misdemeanour by the terrorist group;

The thirtieth (…) to:

Indictment E:

In Denderleeuw, and in connection therewith elsewhere in the state and outside the state, between 8 January 2004 (…) up to and including 15 December 2014:

In violation of articles 1, 2, 145 (§ 3bis), 147, 150 and 165 of the law of 13 June 2005 regarding electronic communication (B.S. 2 June 2005) to have used an electronic communications network or service or other means of electronical communication to cause nuisance to his correspondent or cause harm, in this case by using available transmitting devices and -facilities, and thus an electronical communications network or service or other electronical means of communication, to ensure operational and propagandist messaging and ensure communication with regard to and in the organisation of the terrorist group targeted under indictment sub A and B and more specifically in support of the by this group conducted armed struggle, and this with the aim of causing harm.

* *

2. Legal grounds of the indictments A and B

Under the indictment A and B the accused are prosecuted either as directing persons of a terrorist group (indictment A), or for having participated in any activity of such a group (indictment B).

Leadership and participation in the activity of a terrorist group are punishable under the terms of article 140, § 1 and 2, of the Criminal Code. In the version effective during the delict period, this is before the modification induced by article 2 of the law of 14 December 2016 , this clause is as follows:

§ 1
Every person that participates in any activity of a terrorist group, albeit by providing data or material means to a terrorist group or by financing in any form any activity of a terrorist group, while knowing that his participation contributes to committing a crime or misdemeanour by the terrorist group, will be punished with imprisonment of five to ten years and with a fine of one hundred euro to five thousand euro.

§ 2
Every leading person of a terrorist organisation will be punished with imprisonment of fifteen to twenty years and a fine of one thousand to two thousand euro.

A terrorist group is described in article 139 of the same Code as “a structured group of more than two persons, established over a period of time and acting in concert to commit terrorist offences as mentioned in article 137. An organisation whose objective is exclusively political, syndical, humane, philosophical or religious or that strives exclusively for any other just objective, can as such not be considered as a terroristic group in the sense of the first section”.

On grounds of article 137 of the Criminal Code are considered terrorist crimes as the in paragraphs 2 and 3 limitedly defined (whether or not common law) crimes (such as certain forms of manslaughter or assault and battery, certain forms of hostage taking and kidnapping, certain forms of destructions, plane hijackings, certain forms of disruptions of public utilities, … as well as threatening to commit these offences and for a number of offences also the attempts thereof), when that offence, given its nature or context, may seriously damage a country or an international organisation and has been committed deliberately with the purpose of seriously intimidating a population, or unduly compelling a Government or international organisation to perform or abstain from performing any act, or seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation,

However, under article 141bis of the same Code these stipulations are not applicable to actions by armed forces during periods of armed conflict, which are governed by international humanitarian law within the meaning of these terms under that law, and, inasmuch as they are governed by other rules of international law, actions by the armed forces of a State in the exercise of their official duties.

* *

3. Structure of the subsequent analysis

Although neither the motion of the federal prosecutor, nor the initial indictments, explicitly determine so, it appears from the elements of the judicial procedure taken as a whole that the accused are charged with holding, on Belgian territory, a directing position or having participated in the activities of the Turkish-Kurdish organisation PKK/HPG , albeit by raising funds (the so called kampanya), providing trainings, recruiting, providing operational information to the members active in Turkey by means of radio and television,…

Applied to the present case, in order to be able to refer the accused to the trial court, on the basis of indictments A and/or B, there have to be sufficient incriminating elements that:

• The PKK has committed terrorist crimes or had the intention to commit these, i.e.:
o One of the crimes defined in paragraphs 2 and 3 of article
137 of the Criminal Code,
o which, given their nature or context, may seriously damage a country or an international organisation
o and were committed with the aim of seriously intimidating a population, or unduly compelling a Government or international organisation to perform or abstain from performing any act, or seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation;

• The PKK forms a terrorist group in the sense of article 139 of the Criminal Code, that is to say:
o a structured group of more than two persons,
o established over a period of time and
o acting in concert to commit terrorist offences. A structured organisation of multiple people and that isn’t striving for an exclusively political, syndical, humane, philosophical or religious or any other righteous purpose;

• Aforementioned actions are not to be considered as actions by armed forces during periods of armed conflict, which are governed by international humanitarian law within the meaning of these terms under that law.

A referral of the accused is not possible if there are for one of the abovementioned parts insufficient incriminating elements.

Additionally, for each of the accused, depending on if they’re being prosecuted on the basis of the indictments A and/or B, there should be a determination that there are sufficient incriminating elements that he or she during the relevant period:

• Either fulfilled a directing position within the PKK
• Either participated in the activities of the PKK,
o by supplying information or material resources, or by funding its activities in any way,
o with knowledge of the fact that such participation will contribute to the commission a crime or misdemeanour (whether terrorist or not) by this group.

* *

4. The actions of the PKK/HPG concisely held against articles 137 and 139 Criminal Code

The accused that have appeared or were represented in a session of the Indictment Chamber acknowledge explicitly that the PKK/HPG is a substantive organisation that is involved in a major armed conflict with the Turkish state that has lasted for decades in which there have been many thousands of fatalities and in which the PKK/HPG has (at least) carried out attacks on armoured vehicles and tanks of the Turkish army, on Turkish military bases, on army helicopters, … The PKK, still according to the accused, present or represented, possesses a developed command structure, law enforcement services and courts. The purpose of the PKK is to organise an independent Kurdistan that is (partly) located on a part of the current Turkish national territory and the PKK would even have conquered and controlled a part of the current Turkish national territory, in such a way that the Turkish government has no authority in this part what so ever.

Thus presented the PKK may fall under the description in article 139 Criminal Code. Since:
• The PKK is a highly structured organisation with a large number of members that possesses its own central and local command structures and even possesses a wing structured as a military unit (HPG, formerly known as ARGK);
• The PKK is according to the elements of the criminal file established on 27 November 1978 and already had, according to the accused presented conclusion, her fifth congress in 1995; thus, it exists already for some time and the command structures clearly indicate that there is internal consultation;
• The aim of the organisation is to conquer a part of the current Turkish national territory in order to establish a Kurdish state; in other words, the actions aim to destroy or disrupt the current constitutional structure of the Turkish national state;
• The purpose of the PKK/HPG is not purely political, as appears from the elements and as the accused explicitly acknowledge that the PKK/HPG also pursues military goals;
• There are serious indications that the PKK/HPG has conducted actions that correspond to (a part of) the actions described in article 137, §§ 2 and 3, Criminal Code, such as the killing, wounding and destruction of people and their means, and that can, by their nature or context, seriously harm the Turkish State.

It falls first to be investigated whether or not the exclusion described in article 141bis Criminal Code applies in this matter.

* *

5. Exclusion ground in article 141bis Criminal Code

5.1. Ratio legis

The stipulations of terrorist crimes under article 141bis Criminal Code do not apply to
“actions of armed forces during an armed conflict as defined and subject to international humanitarian law”.

An essential feature of international humanitarian law (the so-called law of war) is that it allows lethal violence purely on the status of a person: those who can be qualified as a combatant can be attacked at all times, as long as he or she isn’t “hors de combat” (translation: out of action). On the other hand, civilians cannot be targeted by an attack “unless and for such time” as they “directly partake in the hostilities ”.

The ultimate aim of an armed conflict is after all to triumph over enemy forces. For this reason, it isn’t prohibited for participants in an armed conflict to attack enemy military targets, including people who don’t have protection under international humanitarian law, and it’s even acceptable that an attack on a military target has a “non-excessive” number of civilian victims (so called “collateral damage”). Violence aimed at such targets is allowed, regardless as to whether it comes from a state actor or a non-state actor in the conflict. Violence directly aimed against civilians or civilian targets is however unlawful, regardless of the status of the actor that has used the violence. The protection of civilians that don’t engage in the hostilities, is after all one of the main objectives of international humanitarian law .

The international humanitarian law is first of all applicable to international armed conflicts. Essentially these are conflicts between two or more states. Members of armed forces that participate in hostilities have “combatant’s privilege” (this implies that in principle they can’t be prosecuted by the national criminal judge for violations of the common law unless for violations of international humanitarian law), and are granted certain rights as prisoners of war.

Since the Geneva Conventions of 1949 non-international armed conflicts, such as conflicts between governmental forces and non-governmental forces, occurring within its own territory, are regulated by international humanitarian law. In particular, common article 3 to the Geneva Conventions determines: “In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following stipulations

1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ‘ hors de combat ‘ by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular humiliating and degrading treatment;

(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

(2) The wounded and sick shall be collected and cared for.

An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.
The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.
The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.”

The abovementioned article 3 is common to the 4 Geneva Conventions and is thus ratified by all states in the world. Common article 3 was held by the International Criminal Court to be the minimum standard, applicable both in international and non-international armed conflicts and was by some authors defined as part of “ius cogens”. Common article 3 provides a certain minimum protection in non-international conflicts. It imposes upon parties that are participating in the hostilities the obligation to spare people who don’t participate in the conflict and explicitly prohibits a number of actions, hence directly seen as violations of international humanitarian law.

However, unlike international armed conflicts, members of armed forces involved in a non-international armed conflict don’t benefit from the so-called combatant’s privilege, this implies that in principle they can be prosecuted within the own national state on ground of the relevant legislation. Moreover, in case of capture, they will not be considered as prisoners of war.

The cause of this restriction is the wish to not erode the sovereignty of the contracting states. This rule is explicitly defined in fine of the Second Additional Protocol to the Geneva Conventions, which states that article 3 has no influence on the legal status of the parties in the conflict .

Nevertheless, the International Committee of the Red Cross considers an (international) incrimination is incompatible with the notion that warring parties in an armed conflict have the same rights and obligations on ground of humanitarian law. When a (non-state) party risks to be prosecuted for committing terrorist crimes, while other parties (governmental armed forces) benefit from immunity as long as they don’t violate international humanitarian law, the equality between the warring parties is severely disrupted. Furthermore, there is a concern that qualifying the actions of non-state armed groups as terrorist crimes – regardless of the conformity to humanitarian law – may discourage warring parties from complying with international humanitarian law.

In accordance with this, some states, including Belgium, have added explicit provisions in their national criminal law, in which the primacy of international humanitarian law is defined. In particular this is the case for article 141bis Criminal Code, in which the text equals paragraph (11) of the Council Framework Decision of the Counsel of the European Union of 13 June 2002 on combatting terrorism .

Therefore, the provision of article 141bis of the Criminal Code aims to submit “actions of armed forces during an armed conflict as defined in and submitted to international humanitarian law” only to international humanitarian law, with the exclusion of common criminal law as applied to terrorism.

The reason of the exclusion ground of article 141bis Criminal Code is to avoid overlapping of the provisions that penalise serious violations of international humanitarian law and the provisions that penalise terrorist crimes .

Actions that aren’t prohibited under international humanitarian law cannot, on grounds of article 141bis Criminal Code, be prosecuted and penalised as terrorist crimes in Belgium, inter alia by implementing the international territorial jurisdiction as defined in chapter II of the Preliminary Title of the Code of Criminal Procedures, even though they meet the material definition of the actions endorsed by article 137, § 2 and 3, Criminal Code and even though they were committed with one (or multiple) of the in § 1 of aforementioned article defined objectives.

* *
5.2. The armed conflict as defined in international humanitarian law

5.2.1. Criteria of a non-international armed conflict

Neither article 141bis Criminal Code, nor common article 3 of the Geneva Conventions defines the concept “armed conflict”, irrespective of whether or not it has an international character.

All present parties agree that the hypotheses that has to be investigated is only this of a non-international armed conflict, i.e. armed conflict committed between one or multiple non-state actors and the national authorities or between non-state actors.

As for common article 3, that applies to the non-international armed conflict , it was apparently the intention of the contracting states to differentiate between on the one hand a non-international armed conflict, submitted to international humanitarian law and on the other hand, internal riots or unrests, on which common law and, where appropriate, the law on terrorism is applicable. The violence must, in other words, exceed a certain threshold, i.e. the hostilities must have reached a certain intensity with a certain collective nature, which can be derived from the organisation, discipline and commando structure of the warring parties.

Following the international jurisprudence, that has developed in this area from amongst others the Tribunal for the Former Yugoslavia, and in particular the decision in the case Tadic , the Court of Cassation held “an armed conflict as defined in international humanitarian law” as “armed violence between states or continued armed violence between public authorities and organised armed groups or among such groups within a state” .

In the aforementioned decision of Tadic the Tribunal for the Former Yugoslavia has emphasised that, for the application of common article 3 of the Geneva Conventions to non-international armed conflicts, ongoing violence is required.

Whether there is ongoing violence in which organised armed groups are involved, must be determined mainly, following the same decision of the Court of Cassation, by the intensity of the conflict and the degree to which the involved parties are organised. Other criteria mentioned by the international justice are merely indications that can be used for the completion of the requirements of the intensity of the conflict and the organisation of the parties involved (Cass. 24 May 2016,P.16.0244.N). Moreover, the international Committee of the Red Cross uses the same criteria .

The presence of a certain intensity of the conflict and a certain level of organisation of the partie(s) involved in the conflict however – both criteria determine whether or not there is ongoing armed violence in the sense of international humanitarian law – don’t seem to be cumulative conditions .

As a benchmark for the intensity of the armed conflict, international justice uses amongst others the following criteria: the nature of the weapons used by the parties, the number of victims, the severity of the damage, the frequency of the clashes, the number of victims, the fact that the use of the police force isn’t sufficient to gain control over the violence, etc.

As regards to the degree of organisation of the parties involved, they mainly look into the existence and nature of the commando structure (with a certain form of hierarchy and discipline), the capacity to plan and carry out military operations, the capacity to recruit and train new members, the capacity to issue internal rules and uphold discipline, the occupation of a part of the national territory…

As to whether the ongoing character of the battle forms a third criterion or is an indication of the intensity of the conflict, there is no consensus. The ongoing character is after all a criterion that is mainly verifiable post factum, while the application of the guarantees by the warring parties, assured by common article 3 imposes itself precisely during the conflict itself and not after .

Finally, the fact that a non-state group violates international humanitarian law, doesn’t rule out the existence of a non-international armed conflict: what matters for the required degree of organisation, is whether the group is capable of respecting the rules and enforcing them internally, rather than the actual implementation .

The abovementioned three criteria (ongoing armed violence, intensity of the conflict, degree of organisation) will be examined in light of the elements of the current case.

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5. 2. 2. The ongoing character of the conflict

The Partiya Karkeren Kurdistan, abbreviated PKK, was established on 27 November 1978. From the elements of the criminal file and from the documents presented by the parties, it appears that the hostilities between the PKK/HPG and the Turkish State started in 1984. In the period from 2000 to 2003 the PKK/HPG unilaterally declared a ceasefire, that was suspended in 2004. In 2006 there was another unilateral ceasefire, that stopped in 2009. From autumn 2012 secret peace negotiations took place between the Turkish government and the representatives of the PKK/HPG, that lead again to a ceasefire that lasted until 2015. About the causes and the responsibilities for ending the various ceasefires, the statements of the parties differ completely. The criminal file contains insufficient elements to comment on this, nor to refute the not implausible explanations of the accused that are present.
Besides, within the scope of the saisine of this court that is not required, while the answer to this question cannot lead to any other conclusion than that an armed conflict between the Turkish government and the PKK/HPG existed and lasted for decades.

The fact that there was an absence of a permanent frontline in which all armed incidents exclusively took place, is furthermore of no relevance. Furthermore the position defended by the Public Prosecution’s Office that the PKK/HPG is not carrying out an ongoing battle but confines itself to a number of guerrilla-activities, is contradicted by the resources to which the accused refer, including the declarations of Turkish politicians in Turkish press, indicating that the PKK/HPG controls certain areas for more than 30 years, mainly in the Southern-East region of Turkey, which is the main area where ethnical Kurds live, and where the Turkish national government cannot exercise control.

At least for the defence of this territory there is a frontline where regular hostilities occur. The fact that the PKK/HPG also aims her armed actions against other targets, located elsewhere, does not detract from this.

Consequently, there can be no doubt about the fact that the Turkish government and the PKK/HPG have been engaged in an ongoing armed conflict since 1984, and that therefore the aforementioned “third criterion” is certainly fulfilled. The periods of the various ceasefires, each time followed by a recurrence of the armed violence, does not dismiss the long and ongoing character of the conflict.

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5.2.3. The intensity of the conflict

Regarding the intensity of the armed conflict, firstly reference can be made to the number of combatants used by the non-state actor in the conflict, in this matter the PKK/HPG.
From information provided by the parties and from the elements from the criminal file, it appears that the estimations of the total number of adherents varies to some extent. At the peak of its popularity, the PKK/HPG possibly had around 50.000 combatants. Estimates of the current numbers vary between 3.000 and 5.000.

The fact that the number of armed participants to the conflict is only a fraction of the total Turkish-Kurdish population, isn’t relevant here. The involvement of the many thousands of combatants, only on the side of the non-state actor, during multiple decades of years during an armed conflict, in itself already shows that the level of internal riot and unrest, to which common article 3 of the Geneva Conventions doesn’t apply, is largely exceeded.

What’s more according to the data provided by the present accused, the death toll on both sides, since the beginning of the conflict, is estimated at approximately 40.000.

Since the end of the last cease-fire in 2015 alone, there are, according to the United Nations High Commissioner for Human Rights (Office of United Nations High Commissioner for Human Rights – abbreviated OHCHR), at least 2.000 fatalities. The same source calculated that over the course of the armed conflict more than 3.000 Kurdish villages were destroyed.

Information provided by both parties, shows that both parties use heavy weapons. The Turkish army carried out several offensives in which fighter aircrafts were used, amongst others for carrying out bombings on PKK/HPG-targets. On its part, the PKK/HPG mainly uses weapons that were smuggled in from Iraq to Turkey, such as M-16 machine guns, several explosives such as A-4 explosives, TNT, ammonium nitrate, AK-47 Kalashnikovs, land mines and RPG-7 rocket launchers. They possess communication material that enables them to plan military actions and to coordinate in carrying them out.

From the aforementioned findings it can be deduced that the Turkish government army and the PKK/HPG have been engaged for decades in an armed conflict that corresponds, both in time and intensity, to the criteria that were envisioned by the contracting parties in signing common article 3 of the Geneva Conventions.

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5.2.4. Organisation of the contracting parties to the conflict.

The last criterion to determine whether or not an armed conflict exists is that it has to be about a group with a certain level of organisation that has to be capable of planning and carrying out a military confrontation over a longer period of time. From the data and information affixed by the parties, it seems that the PKK is strictly hierarchical organised according to the principle of democratic centralism with Abdullah Öcalan as its leader .

The HPG, the armed wing of the PKK has its own command structure. The conference of the HPG (HPG Konferansi) meets every two years. It brings together the members of the council and the elected representatives from the local unites. The conference elects the council (HPG Mecllsi) composed of 41 members. The council elects in its turn the command council of 13 members (Komuta Konseyi). The command council elects with a 2/3rd majority the commander in chief of the HPG.

The daily operational command is executed by a general staff (Anakarargah Komutanligi) led by the commander in chief, Murat Karayilan. In addition to this, there are local commando structures.

Furthermore, the PKK and HPG were capable of putting together representative delegates that represented them in the peace negotiations. The fact that certain dissident and/or radical groups that didn’t agree with these negotiations or as a consequence of these negotiations, split off from the PKK/HPG doesn’t change the aforementioned finding.

The HPG and the PKK have adopted regulations and rules of conduct, including regulations for warfare, and have declared to adhere to certain number of international treaties (including the ones concerning the use of child soldiers and land mines).

Furthermore, the PKK/HPG has a system of courts, of which the charters were made public and that can sanction violations, including violations against international humanitarian law.

Moreover, the PKK/HPG appears to have a large network that allows her to recruit new members and organises in Turkey as well as abroad training camps with the aim of preparing recruits to take part in the armed conflict.

As explained above, for several decades already the PKK/HPG controls part of the Turkish territory which in doing so eludes control by the Turkish national government.

The combatants of the PKK/HPG also wear uniforms and have clear identification marks and flags that proclaim their identity.

Aforementioned criteria result in the assessment that the PKK/HPG comply with the criteria to be recognised as an armed force involved in armed conflict as defined by international humanitarian law.

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5.3. Actions of combatants in an armed conflict subject to international humanitarian law

The aforementioned assessment that during the relevant period there was an armed conflict as defined by international humanitarian law was waged between the PKK/HPG and the Turkish national government, is not sufficient to decide that the exclusion ground defined in article 141bis Criminal Code is applicable.

Furthermore, it needs to be investigated if the armed conflict as well as the participants to this conflict and their actions itself, are subject to international humanitarian law.

Therefore it will be discussed whether:
• International humanitarian law can be applicable to the armed conflict between the Turkish national government and the PKK/HPG,
• The by the Public Prosecutor’s Office as terrorist crimes defined actions of the PKK/HPG may be considered as actions of armed forces
• These actions were carried out during the armed conflict.

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5.3.1. Subjected to international humanitarian law

5. 3.1.1 Subject to IHL vs. punishable by IHL

Regarding the question of submission to international humanitarian law the Public Prosecutor’s Office believes that article 141bis Criminal Code should be interpreted in the light of the Council Framework Decision of the Counsel of the European Union of 13 June 2002 on combatting terrorism. After all, article 141bis Criminal Code is literally taken from consideration (11) from said Council Framework Decision. The Public Prosecutor’s Office emphasises as well that the explanatory statement of the draft law that lead to the law of 19 December 2003 concerning terrorist crimes and from which article 8 has implemented aforementioned article 141bis in the Criminal Code, explicitly refers to the treaty of New York on combatting funding of terrorism of 9 December 1999, of which article 21 states: “Nothing in this Treaty affects in any way other rights, obligations and responsibilities of States and people on ground of international law, in particular the objectives of the United Nations Charter, international humanitarian law and other relevant treaties”.

The Public Prosecutor’s Offices position can be accepted when it claims that article 141bis has to be interpreted in a way that corresponds to the Council Framework Decision and aforementioned treaty of New York.

However, the Public Prosecutor’s Office goes even further and states that, since the Belgian State, on ground of the aforementioned Council Framework Decision, is required to criminalise terrorist crimes, with exception of article 141bis Criminal Code and consideration (11) of the Council Framework Decision has to be interpreted in such a restrictive way that an action, that in its own has all the constitutive elements of a terrorist crime, per definition should be punishable. In other words, when such an action isn’t punishable under the relevant international humanitarian law (for example because the contested action was carried out by (a member of) an armed force during an armed conflict and isn’t prohibited by any treaty provision), then at least the terrorism legislation should be applied.

This point of view however cannot be supported. Aforementioned article 141bis Criminal code and consideration (11) of the Council Framework Decision explicitly state after all that the action must be subject to international (humanitarian) law and not that the contested action must be punishable on ground of international humanitarian law. Such a restrictive interpretation would completely erode the meaning of article 141bis Criminal Code, and therefore of international humanitarian law. As explained above this provision aims to separate the area of application of the humanitarian law and the associated penalty provisions on the one hand and the criminal legislation concerning terrorist crimes on the other hand.

Both systems of law have after all, as explained earlier, a fundamental different mission. The international humanitarian law aims, among others, to offer a (minimum) protection during an armed conflict to a number of categories (civilians and combatants). In order to stimulate the parties in this armed conflict to comply with these (minimal) rights, other actions specific to armed conflict are not punishable. For example killing an enemy soldier will not be punishable, even when one is not in a situation of self-defence, while manslaughter under common law or under the legislation concerning terrorism, if applicable, usually is punishable.

If every participant in an armed conflict fights, knowing that he will at least be exposed to prosecution under common law or under the legislation concerning terrorism, every incentive to at least abide by the international humanitarian law is missing.

Furthermore, a simultaneous application of international humanitarian law and the legislation concerning terrorism would strip the former branch of law from any meaning. Clearly every action from a combatant during an armed conflict contains the material elements of a terrorist crime, since it aims to get the military upper hand on the enemy forces by eliminating them by force, at least weaken them, and at least one of the parties aims to undermine the existing constitutional, political or territorial structures of a country. The analysis that was made above concerning the activities of the PKK/HPG illustrates this once again.

The last phrase of said article 141bis Criminal Code, states that the exclusion ground is only valid for “insofar these actions are subjected to other provisions of international law” has to be understood in the same sense. In particular common article 3 of the Geneva Conventions determines what is allowed or prohibited during a non-international armed conflict. Under international humanitarian law allowed actions are therefore also subject to this legislation, even though the action as such isn’t punishable under the same legislation. The Public Prosecutor’s Office, that upholds another interpretation in this matter, cannot be followed.

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5.3.1.2. Binding force of international humanitarian law

Consistent with the introductory part of common article 3 of the Geneva Conventions, every party in a non-international armed conflict that takes place on the territory of a contracting state shall be required to respect at least the in this treaty provision included obligations.

As presented above, every state has ratified this treaty provision, thereby this treaty provision has to be applied in each non-international armed conflict, everywhere in the world.

As soon as there’s a non-international armed conflict, the application of common article 3 is automatic and absolute, as well as for the state as for the non-state parties in the conflict, irrespective of the fact whether or not the non-state party(s) have endorsed common article 3. As such, the principle of equality of the parties in the conflict applies .

The signing and ratification by all states in the worlds did not only bind the states itself, but just as much their citizens. The obligations in common article 3 of the Geneva Conventions belong to the international humanitarian customary law and are therefore by definition binding for state and non-state actors alike .

Since the binding force of common article 3 of the Geneva conventions automatically applies to every action within the conflict area of a non-international armed conflict that shows a significant connection to the conflict, it’s further not relevant to know if the non-state party has subjugated itself to this international rule of law.

Similarly, not important to the application and the binding character of this provision is the answer to the question if all parties in the conflict have complied with the therein mentioned obligations. The reverse would, after all, mean that all parties could withdraw voluntarily from the obligations imposed by the international humanitarian law by an explicit statement or by violating international humanitarian law.

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5.3.2. Actions by armed forces

5. 3.2.1. The by the Public Prosecutor’s Office retained facts.

Relating to this, the Public Prosecutor’s Office refers to a series of attacks that it ascribes to the PKK/HPG or to organisations that, according to the Public Prosecutor’s Office, equate with the PKK/HPG or uphold close relations to it. Specifically, it concerns among others:
• Sabotage actions carried out on the 9th and 11th of August 2011 by members of the HPG on a Iranian-Turkish gas pipeline in Dogubeyazit/Agri (Turkey) and on a dam under construction in Karliova/Bingol (Turkey);
• An act of sabotage (destruction of construction material and office buildings) on a dam under construction in Sirvan/Siirt (Turkey);
• An attack on the 3rd of October 2011 on an airport under construction in which 15 Turkish soldiers lost their life; the exact location isn’t mentioned, but the fact that Turkish soldiers died, shows that the attack was carried out on Turkish territory, the contrary is at least not proven, nor claimed.
• The high jacking of a ferry on the sea of Marmara, that is entirely on Turkish territory, on the 11th November of 2011;
• (An attempted) bombing on a freight train by armed people, dressed in PKK/HPG uniforms and in possession of a HPG flag, as seen on a video seized as a result of a house search at ROJ; date and place unknown, but it’s not argued and there is no reason to believe that the (failed) attack would be outside Turkish national territory;
• Three attacks with carbombs that alledgedly carried out on the 17th of February 2016 in Ankara (Turkey), on 4 March 2016 in Mardin (Turkey) and on 11 April 2016 in Diyarbakir (Turkey) ;
• An attack with a carbomb in Kayersi (Turkey) on the 25th of May 2012 on a police prefecture;
• An armed attack on military and police officials in Sirnak (Turkey) on 2 September 2012;
• A bomb attack on a mine in Bingöl (Turkey) on 16 September 2012;
• An attack on the police prefecture of Sanhurfa (Turkey) on 22 July 2015
• An attack on the prefecture of Mardin (Turkey) on 23 April 2016

From the explained above in the discussion on the level in which the PKK/HPG is organised, it appears that this organisation, without any hesitation, can be defined as an armed force in the sense of article 141bis Criminal Code.
The present or represented accused state not implausible that, under reservation of what follows, for the cited incidents, the choice of the targets is justifiable from a military point of view.
It is indeed not implausible that (divisions of) the Turkish police play an active role in or are regularly deployed during military confrontations between PKK/HPG militias and the armed forces of the Turkish national government. From this point of view Turkish police services could, where applicable, be seen as military targets. The same applies to attacks on means of transport such as pipelines and freight trains. To the extent that it is not implausible that the transported products are (partly) meant as supply for the Turkish national armed forces, it can, also here, not be excluded that these were military targets.

The high jacking of the ferry seems to be an exception to this assessment. The same goes for the suicide attack in a commercial area on 22 May 2007 by (former) PKK-militant Güven Akkus.

The involvement of the PKK/HPG itself in these two incidents however is strongly denied by the present or represented accused.

The criminal file contains insufficient elements to conclude to the direct involvement of the PKK/HPG in this high jacking and suicide attack. Other than what the Public Prosecutor’s Office upholds, from the elements of the criminal file it does not appear that the PKK/HPG has claimed the hostage taking of the passengers of the ferry boat. The article that appeared on the website http://www.hezenparastin.be (that seems to be the “official’ website of the HPG), appears to be rather a reaction to earlier press releases from the Turkish Ministry of Internal Affairs than claiming the action. The press statement mentions that their “PKK comrade”
Mensur Güzèl has stopped a ferry to bring attention for the regime that their leader faces in prison. It further states that he was unarmed, acted alone, didn’t resist but was nevertheless killed by Turkish security units, that it wasn’t the intention to kill people or inflict damage and that such things didn’t happen. Finally, in obscure wording, presumably due to translation, there is a call for understanding for this action.
However, under no circumstances it appears from this text of the statement, nor can be deducted from any other piece, that Mensur Güzel would have acted on orders from the PKK or the HPG. Membership of one of these organisations doesn’t allow to ascribe every action of a member immediately to the organisation itself.

So, the high jacking of the ferry on the sea of Marmara will not be taken into consideration as of here.

The same goes for the suicide attack committed by Güven Akkus. The present or represented accused recognise that the suicide attack was claimed by the Kurdish organisation T.A.K. , however they strongly contest that this organisation can be identified with the PKK/HPG. The present or represented accused state to that effect not implausible that in this case it concerns a radicalised organisation that separated itself from the PKK/HPG due to disagreement with the peace negotiations from PKK/HPG.
The point of view from the accused is certainly not shared by everyone and several foreign judicial decisions have in their considerations come to other conclusions. Nevertheless, this Indictment Chamber is not bound by these considerations included in decisions of foreign courts, nor is a reference to these considerations a sufficient justification to conclude to the presence of sufficient incriminating elements in respect of the accused. In other respects, the criminal file and the presented elements contain insufficient components to refute the not implausible statement of the accused.

Regarding the ties between PKK/HPG on the one hand and the T.A.K. on the other hand, the Public Prosecutor’s Office relies, besides the foreign judicial decisions, mainly on 4 elements that will be analysed hereafter. Firstly, there are the statements on the case made by witness Baris Mete as part of a Turkish criminal investigation, to which the members of the Belgian police have received access within the context of the international request for judicial assistance to Turkey. However, these statements are not convincing. In particular the information with regard to the complete investigation charged to Baris Mete is insufficiently presented to draw unambiguous conclusions from this. Further there is the report of Dr. Walter Posch, a German academic, that concludes that T.A.K. is partly an instrument at the hands of the PKK. Similarly, this element is not convincing as in this case both the methodology as the reliability of the sources can be doubted. The arguments that the present or represented accused have developed in this respect, are insufficiently rebutted by the Public Prosecutor’s Office. The mere claim that the authority of dr. Posch is indisputable and that his analysis is publically available, cannot be sufficient in this case.

The same is true for the reports of the American OFFICE OF THE COORDINATION FOR COUNTERTERRORISM, as regard to the reliability of the sources and the used methodology. Finally conclusions cannot be drawn from the claimed position of the PKK in respect to the actions of the T.A.K.. After all it’s not because one organisation does not constantly explicitly condemn the actions of the other organisation, that it is one and the same organisation.

The other aforementioned cited facts, together with the other reported confrontations between the PKK/HPG and the Turkish national armed forces, are consequently to be considered as acts of armed forces against military or paramilitary targets.

Besides, the military character of a target may be one of the elements to judge whether certain acts are ascribable to an armed force or to another type of organisation, the assessment that a civil target or a target with mainly a civil character are the target of an attack is in no way sufficient to exclude that the responsible organisation is to be considered as an armed force. Where appropriate the responsible, even when they are a member of an armed force in a non-international armed conflict, may be prosecuted on grounds of violations of the requirements of common article 3 of the Geneva Conventions of 12 August 1959, in Belgium inter alia punishable on grounds of article 136quater, § 2, Criminal Code.
In that regard, the answer to the question if and to what extent T.A.K. may or may not be part of the PKK/HPG, is of limited relevance.

The same applies to the question whether or not the attacks in Turkey claimed specifically by this last organisation show sufficient connections to the (what is at stake in) the non-international armed conflict. To the extent that such attacks would be aimed against civil targets, such as the not further specified attacks in the seaside resorts Kusadasi in July 2005 and Manavgat in June 2016, these could potentially be a violation of international humanitarian law and could be punished as such, without that further having any influence on the status of the PKK/HPG as a party in a non-international armed conflict, nor on the automatic application and the binding effect of common article 3 of the Geneva Conventions.

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5.3.2.2. Combatants and civilians in a non-international armed conflict.

The Public Prosecutor’s Office upholds that under international humanitarian law there needs to be distinction between the combatants on the one hand, i.e. those who partake directly in the fights continuously, and the civilians on the other hand, i.e. all people that are not a member of the armed forces.

Article 141bis Criminal Code declares however that title Iter of Criminal Code is only not applicable on armed forces, party to the armed conflict, so not on civilians. Still according to the Public Prosecutor’s Office, the current accused are not direct participants in the conflict, hence they cannot invoke the aforementioned exclusion ground.

However, the position of the Public Prosecutor’s Office cannot be agreed with. To be punishable under the regime of the article 140 Criminal Code, the person on trial must have partaken in the activities of a terrorist group or have fulfilled a directing position. In other words, to be punishable, there should be a terrorist group .

Article 139 defines a terrorist group as “a structured group of more than two persons, established over a period of time and acting in concert to commit terrorist offences as mentioned in article 137”;

Under the previous section the actions were investigated that were described by the Public Prosecutor’s Offices as terrorist crimes, but after investigation by the court were (also) to be described as actions of armed forces. The executors of these actions are by their deeds directly involved in the armed conflict.

Consequently, to the extent that article 140bis Criminal Code precludes to punish these actions under the application of the Belgian terrorism legislation, which will be investigated hereafter, the PKK/HPG will not be considered as a terrorist group because of these actions and the participation in activities of this group or taking up a leading role within this group will also not be punishable.

In other words, and other than what the Public Prosecutor’s office upholds, for the application of article 140bis Criminal Code it is not the deed of participating in activities of a terrorist group, nor the leadership of this group, that needs to show a sufficient clear connection (“nexus”), but the acts that allow the organisation to be seen as a terrorist group, i.e. the criminal acts as described in article 137 Criminal Code.

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5.3.3. Actions carried out during the armed conflict

To conclude that the actions of the PKK/HPG were also conducted during the armed conflict, there should not only be considered the factor time, but also a geographical factor.

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5.3.3.1. The chronologic aspect

Chronologically there can be no doubt that the by the parties described armed incidents took place since 1984 and last until this day. The unilateral declared ceasefire, of which the present and represented accused not implausible claim that these were not accepted, recognised or respected by the Turkish government, have after all not ended the armed conflict, nor the application of common article 3 of the Geneva Conventions .

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5. 3. 3.2. The geographic aspect

5.3. 3. 2. 1. Acts carried out on Turkish national territory

As for the geographical aspect, first of all it needs to be investigated whether the conflict area includes the whole national territory of a state in which an armed conflict takes place, or whether the application of common article 3 of the Geneva Conventions is restricted to the actual conflict area, in this case for example the by the PKK/HPG occupied territory.

Along the lines of the Tadic judgment it must be concluded that once the threshold of the non-international armed conflict is exceeded, the application of common article 3 of the Geneva Conventions immediately includes the complete territory that is controlled by one of the parties. In the case that one of the involved parties is the national state itself, the application of said article 3 includes immediately the complete territory of that state .

However, the previous does not mean that every act is per definition controlled by international humanitarian law. Acts that are not or not sufficiently related to the armed conflict will still be covered by (national) common law. Nevertheless in this case, it was already determined above that the by the Public Prosecutor’s Office invoked armed incidents that took place in Turkey show a direct connection to the non-international armed conflict between the national Turkish state on the one hand and the PKK/HPG on the other hand and are thus considered acts of armed forces involved in this conflict .

Besides, it should not be forgotten that the majority of the acts of the PKK/HPG in Turkey are without a doubt of military nature. This is moreover indisputably demonstrated by the actual actions for which the Public Prosecutor’s Office blames the accused, in which predominantly is referred to the recruiting of combatants, the passing of information about troop movements and flights of military aircrafts.

The fact that the Public Prosecutor’s Office systematically describes the PKK/HPG combatants as guerrilla fighters, does not change this. After all a guerrilla struggle is a typical phenomenon in non-international armed conflicts in which a non-state organisation competes with national forces. The guerrilla fighters, often identified with revolutionary armed forces, can equally be subject to the application of common article 3 of the Geneva Conventions .

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5. 3. 3.2.2. Acts carried out in neighbouring states

The fact that the Turkish national government has conducted military actions against PKK/HPG-installations on Iraqi territory, to where a part of her members has retreated, does not change the fact that the conflict between Turkey and the PKK/HPG still needs to be considered as a non-international armed conflict as envisioned by common article 3 of the Geneva Conventions. Occasional cross-border armed incidents (so called “spillover incidents”) or the fact that one party purposeful aims at targets of the other party of the conflict that are situated on the territory of a neighbouring state (so called “cross border incidents”), don’t prevent that the true nature of the armed conflict is in essence still non-international. The states on whose territory the conflict spills occasionally are after all not involved in the conflict .

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5.3.3.2.3. Acts carried out in Europe

The Public Prosecutor’s Office refers to several foreign court decisions from which would appear that PKK/HPG members have committed attacks on targets situated outside of the Turkish national territory.

In accordance with what is explained before, the application of common article 3 of the Geneva Convention is not eligible for the facts committed outside of the Turkish territory (extended to the areas situated on the territory of neighbouring states to which the non-international armed conflict has occasionally spread). To the extent that facts, to which the terrorism legislation is applicable, were committed outside of the conflict zone and are ascribable to the PKK/HPG, this last organisation in conformity with article 139 Criminal Code, can be considered as a terrorist group and participation to as well as leadership of this group shall both be punishable conform Belgian legislation, at least to the extent that all conditions of (the applicable version of) article 140, §§ 1 and 2 Criminal Code are fulfilled.

The Public Prosecutor’s Office refers to the report it submitted of 2013 drafted by EUROJUST concerning the analysis of “PKK-judgements” given by Italian, French, Danish and German judicial instances and has also added a few foreign judicial rulings.

Italy

As for the Italian decisions (two decisions of the Assize Court of Perugia, in first instance and in appeal, given on 20 December 2006 and 23 January 2008), it shows that three accused were prosecuted for taking part in (the activities of) the Turkish-Kurdish organisations DHPK-C and DHKC, that are described in the report as radical left groups that are known for working together with the PKK. In so far that a collaboration with the PKK would already be proven, this does not show in any way that the PKK/HPG would be guilty of terrorist activities outside the conflict zone in which international humanitarian law is applicable.

Denmark

A Danish ruling of a court in Copenhagen of 10 January 2012 has convicted … and … of supporting and calling for participation of (activities of) the PKK by spreading “one-sided” information. Again, it does not appear that the PKK was involved in actions, carried out outside the conflict area, that comply with the descriptions mentioned in article 137, §§ 2 and 3, Criminal Code. Moreover, nowhere in the report the application of an exemption clause similar to this of article 141bis Criminal Code is mentioned.

Germany

The German rulings investigated by EUROJUST of the Courts of Appeal of Frankfurt Am Main and Düsseldorf, respectively of 10 April 2008 and 31 July 2009, firstly determine that the main goal of the PKK-activities in Europe consists of collecting financial means in support of the “guerrilla fighters” in Turkey and of certain activities of the PKK such as administration, propaganda and recruiting .

The same judgements mention also, according to the report, unspecified facts of violence against Turkish communities in Germany. Under the description “criminal activities” it mentions facilitating illegal access to German territory, collecting contributions or taxes, often with use of violence or threats, and punishing those who refuse to contribute by means of threats, intimidation, deprivation of liberty and inflicting physical injury.

With the exception of inflicting assault and battery, none of the thus described facts, and of which every more detailed description moreover is missing, corresponds to one of the crimes eligible to be qualified as a terrorist crime, from which the exhaustive list is mentioned in article 137, §§ 2 and 3, Criminal Code.

Further it should be noted that on grounds of the available elements the used violence (of which a detailed description is moreover not available) was committed with the intent to collect a contribution or tax, hence the facts should probably be qualified as extortion by means of violence or threats, which however is not included in the aforementioned list of terrorist crimes. Moreover, in these German court rulings, the two accused were convicted for membership and participation in activities of a criminal organisation, and not of a terrorist group. Furthermore, the Public Prosecutor’s Office submits a ruling of the Hanseatisches Oberlandesgericht of 13 February 2013 concerning …, who was sentenced for membership of a foreign terrorist organisation to an imprisonment of two years and six months. An appeal lodged by the accused at the Bundesgerichtshof, was rejected by a decision of 6 May 2014. In aforementioned decision … was charged with fulfilling a leading role in a fraternal organisation of the PKK in Germany, to subsequently join the PKK in Northern-Iraq. Although the decision mentions that the PKK engaged in Germany in terrorist activities , it is not clear on which findings of facts this consideration was supported and detailed information (such as convictions, date of attacks, identity of the perpetrators, circumstances of the attack, targets…) is not provided in this regard. Further only a long list of attacks committed on Turkish territory is mentioned. The PKK/HPG is described as a terrorist organisation and the existence of an international legal justification is investigated but rejected. Odd is however that the acts of the PKK/HPG (and the according to this court associated T.A.K.) on Turkish and Iraqi territory are not examined in the light of common article 3 of the Geneva Conventions. In any case, it can also not be derived from this German case law that the PKK/HPG would be guilty of committing terrorist crimes outside the area of the non-international armed conflict envisioned by aforementioned article 3.

France

As for the French decisions, the report refers to rulings of the Court of First Instance of Paris of 13 January 2009, 12 October 2010 and 2 November 2011. The Public Prosecutor’s Office also refers to other French rulings of the Court of Appeal of Paris of 1 July 2009, 5 April 2011, 6 December 2011, 31 January 2012 and 23 April 2013 as well as to a judgement of the Court of First Instance of Paris of 18 December 2011. The judgement of the Court of First Instance of 13 January 2009, in appeal confirmed by the decision of the Court of Appeal of Paris of 1 July 2009, condemns eleven accused for, amongst other, facts of damaging of real estate (qualified as terrorist crime), possession and carrying of firebombs, battery without causing incapacity to work and collecting funds for the benefit of the terrorist organisation PKK .

From the reading of these decisions, it appears that on 24 April 2007 two people, among them a minor, have broken a window of a pub in order to throw in a molotov cocktail. According to the declarations of one of the parties involved, this fact should be seen within the context of the rivalry that exists between a clandestine group called the “Apoistic youngsters ” on the one hand, from which the name refers to Abdullah Öcalan, known as APO, one of the founders and leaders of the PKK, and the Grey Wolves, a Turkish “ultra-nationalist” association on the other hand.

Eight similar incidents would also have taken place in the period of 4 March to 2 May 2007 in the French cities Bordeaux, Toulouse, Marseille, Marignane and Port-de-Bouc.
To the extent that the violence would have been aimed against a rival organisation (“Grey Wolves”) and thus not against a population, a country, a government or an international organisation, these do not respond to the description of a terrorist crime as determined in article 137 Criminal Code. However, to the extent that the attacks would be aimed against the Turkish population in general or the Turkish community on the territory of the French state, the assessed facts could be eligible to qualify as a terrorist crime. However, nothing shows that the acts committed by a group that calls itself “Jeunesses Apoïstes”, were attributable to the PKK/HPG. The fact that one of the perpetrators would have confessed to be a member or having been a member of the PKK, does not show in any way that the act itself was committed on the orders of or on behalf of this last organisation. There is no indication that the PKK/HPG would have claimed the attacks and from the information that this Court, Indictment Chamber, has gathered during the course of the debates, there does not appear to have been significant contacts with the command structures of the PKK/HPG that would have been an indication for the existence of a direct or indirect order, instructions or suggestions, or material or immaterial support of this organisation to the preparation or execution of these acts, nor afterwards with the accommodation or helping to escape of the perpetrators. For a part of these attacks the perpetrators were not even identified.

A judgement of 18 February 2011, in appeal confirmed by decision of the Court of Appeal of Paris of 5 April 2011 , 6 December 2011 and 31 January 2012, concerns the abduction on 30 September 2005 of … against a payment of 20.000 Euro ransom for the repayment of a debt undertaken by one of his next of kin.

The perpetrators were alledgedly members of the Marxist Leninist Turkish communist party TKP/ML and/or an armed wing of this party, the T.I.K.K.O. From information provided by the German authorities it appears that there were contacts with a member of the Kurdish organisation DHKP-C. The French investigation would have resulted in one document, dated 17 August 2005, from which appears that the TKP/ML and the PKK had a meeting concerning subjects without any connection to the investigated facts. An accused acknowledged to have once participated in a protest that was also organised by the PKK. Other organisations come into focus (ATIK, ATIF, FTIF, ASEP,…) however without exposing any further connection to PKK/HPG. Consequently, the same conclusion with regard to the facts investigated in the judgement of 18 February 2011 applies: there is nothing to indicate that the attacks are ascribable to the PKK/HPG.

A judgement of 12 October 2010 of the Court of First Instance in Paris concerns a ruling resulting from an attack, in Strasbourg on 22 and 23 October 2008, against the premises of the Turkish Delegation at the Council of the European Union. It concerned an attack with Molotov-cocktails, in which nobody was injured, by …, an active member of the PKK, together with three unidentified accomplices. The judgement, that is extraordinarily briefly motivated, does not give the least indication about the involvement of the PKK itself in the attacks. Again, there is no claim by the PKK or instructions from competent bodies of this organisation. … was found guilty of membership of a terrorist organisation, notably the PKK, but the description of the PKK as a terrorist organisation is not motivated besides a reference to the incorporation on the list of terrorist organisations of the Council of the European Union .

The elements presented by the judgement of 12 October 2010 do not allow to conclude that
the PKK/HPG, considered the principles explained above and subject to what still needs to be investigated next, has also to be considered under Belgian law as a terrorist group. In any case it does not appear from abovementioned ruling that the PKK would have committed facts as described in article 137, §§ 2 and 3, Criminal Code outside the higher described conflict zone.

A ruling of 2 November 2011 of the Court of First Instance in Paris, largely confirmed by a decision of the Court of Appeal in Paris of 23 April 2013, concerning facts qualified as participation in a criminal gang established for the purpose of the preparation of a terrorist deed and the funding of a terrorist endeavour. The funding in particular would come from illegal revenues including from selling narcotics. However, in the ruling there is no mention of crimes as described in article 137, §§ 2 and 3, Criminal Code that was committed by the involved parties on French territory.

After having established that neither the incorporation of the PKK on the list of terrorist organisations of the Council of the European Union in 2002, nor the declarations of certain repented are relevant for the investigation to the alleged terrorist nature of the PKK, the court nevertheless concludes that the PKK is indeed to be regarded as a terrorist organisation considering the many attacks committed by her armed wing and claimed in Turkey . As explained above these facts, if proven, are not relevant for the assessment of the question if the PKK under Belgian law, considered the exclusion ground of article 141bis Criminal Code, is to be considered as a terrorist group. Again, it has been determined that from aforementioned ruling it does not appear that the PKK/HPG would have committed facts as described in article 137, §§ 2 and 3, Criminal Code outside the above defined conflict zone.

On appeal the decision of 23 April 2013 does however expand on the history, the organisation and the acts of the PKK. Thereby the Court of Appeal in Paris does not only refer to the attacks ascribed to the PKK in Turkey but also to these, committed on French territory, that were the subject of the aforementioned judgement of 13 January 2009. In relation to this this can be referred to what was explained above. However, the ruling also mentions four attacks committed with Molotov-cocktails on 15, 16, 17 and 18 February 2007 against vehicles and buildings belonging to or used by Turkish companies . These attacks should “according to the information obtained by the French liaison officer in Berlin (Germany)” be ascribed to the PKK. Further information is missing and there is no reference to the judicial rulings in which the connection between the PKK/HPG and these attacks would have been determined.

This rather casual consideration from the French decision of 23 April 2013, from which cannot be verified if this is based on verified information, cannot be sufficient to conclude that the PKK gave the order to or was the perpetrator of these attacks.

Finally, the facts that were at the root of the initial indictments C1, C2 and D should be reconsidered. The fact that the second, third and twenty eighth accused on the basis of these facts have in the meantime been exonerated , does not prevent that by judgement of 4 February 2005 of the Tribunal de Grande Instance de Colmar confirmed by decision of 14 December 2005 of the Court of Appeal in Colmar , two people were convicted for “the subtracting of a minor, without deceit or deception, from his parents which have parental supervision”. Concretely, the accused were charged with having placed three minors from 15 to 16 years old in a training camp of PKK/KADEK in the Netherlands. The crimes for which these people were found guilty were not qualified by the court as a terrorist crime. Moreover, the minor …, born on …, was 16 years old at the time he was subtracted from his parents, namely on 13 April 2003. To be found guilty to the crime described in article 428, § 2, Criminal Code, that according to article 137, § 2, of the same Code is eligible to be qualified as a terrorist crime, the abduction must be executed by means of violence, deception or threat. This circumstance was however not determined in the discussed judgement. Consequently, neither from this ruling it appears that the PKK/HPG is guilty of a terrorist crime outside the conflict zone.

Conclusion

In summary it should be concluded that the submitted elements of the criminal file together with the information provided during the hearing and the by the parties presented elements are not sufficient to conclude that the PKK/HPG is guilty of committing or planning terrorist crimes outside of the conflict area of the ongoing non-international armed conflict between the PKK/HPG and the Turkish national government.

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5.3.3.2.4. Acts carried out on Belgian territory

For this point can be referred to what was explained above under title 5.3.2.2.

The conclusion that the facts for which the accused are being prosecuted, would all have been committed on Belgian territory, i.e. outside of the Turkish territory and by extension outside the conflict zone, does not allow in this case to not apply the exclusion ground of article 141bis Criminal Code.

It needs to be repeated that the accused are “only” being prosecuted for leadership of a terrorist group or participation in the activities of a terrorist group, without being charged with any criminal participation to one of the terrorist crimes described in article 137 Criminal Code. To that extent should be repeated that pursuant to the indictments C1, C2, C3, C4 and D the accused in the meantime have definitively been declared dismissed from all charges.

Consequently, for the criminalisation of the incriminated acts that would have been committed by the accused, it is required that the PKK/HPG itself can be considered as a terrorist organisation. The incriminated acts should therefore not be seen in isolation but should necessarily be seen as acts committed in the framework of an organisation that should qualify to be a terrorist group.

Corresponding to article 139 of the Criminal Code a terrorist group is a structured group of more than two persons, established over a period of time and acting in concert to commit terrorist offences as mentioned in article 137 of the same Code.

The PKK/HPG, of which the leadership or the participation to her activities the accused are charged with, is as mentioned above, a party in a non-international armed conflict and such, for her actions carried out in the conflict area, subjected to the applicable international humanitarian law.

The only acts of the PKK/HPG, for which there were enough objections available within the frame of this case that they could correspond to the material description of one or multiple terrorist crimes envisioned by article 137 Criminal Code, have all been committed within the conflict area and during the non-international armed conflict.

Rightfully the Public Prosecutor’s Office claims that the qualification as terrorist group does not necessarily imply that a terrorist crime has already been committed. The planning of such a crime would already be sufficient on its own. However, there is no information available that the PKK/HPG would have had plans to commit acts that could respond to the description of article 137 Criminal Code outside the conflict area.

Article 141bis Criminal Code excludes nevertheless the application of Title Iter of Book II of the Criminal Code, and therefore the aforementioned acts of the PKK/HPG, according to Belgian national legislation, cannot be qualified as terrorist crimes.

Hence the PKK/HPG can due to these facts not be prosecuted as a terrorist group. The same counts for conducting any activity or fulfilling any directing role within this group, even if these activities would have taken place on the Belgian territory.

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5. 4. Conclusion

On grounds of aforementioned findings, it must be concluded that the PKK/HPG is involved for decades in an ongoing and intense non-international armed conflict between herself and the Turkish national state. The PKK/HPG is as a participant in this conflict to be considered as a (strongly) organised armed force and the acts of this organisation that can be attributed to this organisation and that could respond to the material criteria of terrorist crimes were all carried out within the limits of the conflict area.

On ground of article 141bis Criminal Code is the title Iter of the same Code in this case not applicable and the accused need to be declared dismissed from all charges pursuant to indictment A and B.

The incorporation of the PKK, HPG or other whether or not related organisations in the list of terrorist organisations of the European Union is in this case not relevant and does not prompt in any way to another conclusion.

This administrative act, that moreover already was the subject of many judicial disputes, does not form a hierarchical higher norm above article 141bis Criminal Code and can consequently never be the basis to condemn the accused anyway for participation in the activities and leadership of a terrorist group.

Furthermore, the same applies to foreign judicial decisions in which the PKK or any other Kurdish organisation are described as a terrorist group.

The question whether the PKK/HPG is a terrorist organisation in international norms, is after all not relevant now it is determined that this organisation is not punishable as a terrorist group under Belgian criminal law in the light of the given circumstances.

As for the rest this does not diminish the possibilities of the Belgian state to undertake her international obligations on the fight against terrorism, where appropriate also with regard to the PKK/HPG or organisations that are affiliated to the latter in any way.

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6. Indictment E: Nuisance caused by means of telecommunication

6. 1. The incriminated period

Under indictment E the 30th accused, …, is prosecuted for, in the period of 8th January 2004 up to and including the 15th December 2014, having used “an electronical communications network or service or other means of electronical communication to cause nuisance to his correspondent or cause harm,” and this “by using available transmitting devices and -facilities, and thus an electronical communications network or service or other electronical means of communication, to ensure operational and propagandist messaging and ensure communication with regard to and in the organisation of the terrorist group targeted under indictment sub A and B and more specifically to the benefit of the by this group conducted armed struggle, and this with the aim of causing harm.”

These facts, if proven, are punishable on ground of article 1, 2, 145, § 3bis, 147, 150 and 165 of the law of 13 June 2005 concerning electronic communication, published in the Belgian Official Gazette of 2 June 2005. Initially this provision was incorporated in the law of 13 June 2005 under article 145, § 3, 2°, that was subsequently abolished by art. 189, 3°, of the law of 25 April 2007 (B.S., 8 May 2007) and was replaced by a new paragraph 3bis, inserted in said article 145 of the law of 13 June 2005.

The legislative amendment only applies to the punishment, that following the amendment was put on equal foot with the punishment for the crime of harassment as described in article 442bis Criminal Code, though the description of the punishable behaviour remained unchanged.

As for the relevant period, first of all it should be noted that the Public Prosecutor’s Office under indictment E prosecutes facts with effect from 8 January 2004 on grounds of a legal provision that only entered into force on 12 June 2005. A referral to the Court will only be possible provided that the delict period starts on last mentioned date. With regard to the end of the relevant period for indictment E there is no reason, as for earlier indictment B, to determine the end of the relevant period on 15 December 2014, being the date of the first end claim of the Public Prosecutor’s Office.

* *

6.2. The incriminated acts

The … is a venture under Belgian from which the head office is situated in Denderleeuw. The activities of … are these of a production house: they make television shows that they subsequently sell or make available to TV networks. They make programmes mainly intended for the Kurdish audience.

On ground of the information provided in the criminal file and during the debates it cannot be unambiguously decided that the … is to be identified with ROJ-TV. The last is a television channel that belongs to a Danish venture …. The same is true for radio …, a radio channel that essentially focuses on the Kurdish people. It is for this last radio channel that the – in the meantime definitively declared dismissed from all charges – …, originally accused 32nd, produced radio productions.

It certainly appears from the criminal file the … and … were located in the same buildings, that they partly employed the same staff and that they were not always unambiguous in their communication to the outside world as to the distinction between the production houses and the radio- and television channels. In particular to the crime “Misuse of electronic communications network or service or other electronic means of communication”, … is in this respect charged with:

• Having used certain broadcasts to transfer strategical instructions to the PKK combatants that are in the border area of Northern-Iraq: specifically it concerns providing information about the take-off of Turkish military aircrafts or movements of Turkish army- and police units by listeners that called the radio station during a radio request show.
• Having made broadcasts in which the persona of Abdullah Öcalan was idolised and the activities of the PKK were legitimised and in which youngsters were incited to commit violence and encouraged to join armed groups.

As for the latter, the Public Prosecutor’s Office bases her findings on two documents that were found on two computers that were confiscated during a house search and executed in the offices of the ….

The two Word-files both don’t have the heading of …, nor does it show in any way that these documents represent the official position of the Board of Directors of … or that they were issued from a body that has the authority to represent or manage the venture.
In the first document, titled “GÖSEL YÖNETiMINE” , is indeed stated that showing images of youngster that are throwing molotov cocktails on television would have a canvassing effect.

On the other hand, the author of this document complains that such actions are not broadcasted on television, nor a number of statements that were made by members or representatives of the youngster movement. Consequently, even if the document could be ascribed to …, this shows that they precisely did not engage in inciting youngsters to violent actions.

The same goes for a document titled “.. MAHKEMESI”. Here as well every indication is lacking to prove that the document was issued by (the competent bodies of) ….
This document addresses the judicial procedure in Germany that was conducted by … (i.e. the television channel, to be differentiated from the production house …), in which they challenge a broadcast ban of production house … imposed by the German government due to the spreading of alleged propaganda for the PKK. The document contains a number of recommendations to prevent that the broadcasts of … could be considered as propaganda. Accordingly, it calls for maintaining a more neutral style and focus more on civil subjects rather than military actions. This text also implies that .., and where applicable by extension …, strive to spread (more) objective information.

As for providing strategic instructions to PKK combatants, firstly it must be noted that broadcasts of radio channel … were targeted and thus no television broadcasts produced by …. This last denies firmly to be identified with said radio station and refers specifically to the licence agreement which shows that the radio station is property of the Swedish venture …. The single fact that … is located in the same buildings as … and that certain staff works for both companies, does not allow to conclude that the radio channel and the television production house are one and the same entity. The … can therefore not be responsible for the content of the radio broadcasting for which is not proven that these were (co)created by it.

In so far as necessary it should be reminded that indictment E explicitly targets the misuse of means of telecommunication “to ensure operational and propagandist messages to and within the organisation of a terrorist group envisioned under indictment sub A and B”. However as explained above the PKK/HPG is not punishable under Belgian terrorism legislation and thus strictly speaking cannot be considered a terrorist group in the sense of article 149 Criminal Code. Thus, is concluded that for the facts envisioned in indictment E there were insufficient objections to justify a referral to Court of … on the base of this indictment.

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6.3. Additionally: the crime described in article 145, §3 bis, of the law of 13 June 2005 concerning the electronic communication is not applicable to radio and television broadcasts.

Under indictment E … is charged with having used an electronic communications network or an electronic communications service or other electronic means of communication to cause nuisance to its correspondent or to cause harm.
Article 2, 3 of aforementioned law describes an electronic communications network as “the transmission systems, and where applicable, switching or routing equipment and other resources, including network elements that are not active, which permit the conveyance of signals by wire, by radio, by optical or by other electromagnetic means, including satellite networks, fixed (circuit- and packet-switched, including Internet) and mobile terrestrial networks, electricity nets, to the extent that they are used for signals other than radio and television broadcasting.”

Under article 2, 5° of this law electronic communications services means “services usually provided against remuneration which consists wholly or mainly in the transmission and routing of signals on electronic communications networks, excluding (a) services providing, or exercising editorial control over content transmitted using electronic communications networks and services, excluding (b) the services of the information society as described in article 2 of the law of 11 March 2003 concerning certain judicial aspects of the services of the services of the information society, which consists wholly or mainly in the transmission of signals on electronic communications networks and excluding (c) radio and television broadcasting.”

Consequently, given the specific activity of … as producer of television programmes, it cannot be charged with having misused electronic communications services or an electronic communications network.

Additionally, it needs to be investigated whether the pending charges for the activities envisioned by indictment E could not have been committed by means of other electronic means of communication.

Neither the law of 13 June 2005, nor the Directive 2002/21/EG of 7 March 2002 transposed by the law of 13 June 2005, provide a definition of “the other electronic means of communication” mentioned in article 145, § 3bis. Probably this refers to specific applications as WIFI, ADSL, G4, as well as future means of communication that were not yet known by the legislator at the moment of realisation of this law.

Despite the absence of a clear definition, it must be concluded that radio and television broadcasting neither falls under the scope of these “other electronic means of communication”. To conclude otherwise would after all mean that the by the legislator intended exception for radio and television, as foreseen in articles 2, 3° and 2, 5° of the law 13 June 2005, would go unheeded. Said exceptions would remain completely useless, which could impossibly comply with the ratio legis.

The … will consequently also be declared dismissed from all charges for indictment E.

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Considering the articles:

128, 135, 217 to 227 of the Code of criminal procedure;
11, 12, 13, 16, 24, 31 to 37 and 41 of the law of 15 June 1935 on the use of languages in lawsuits;

FOR THESE REASONS,

THE COURT OF APPEAL,

INDICTMENT CHAMBER,

Judging after cassation and in absentia with regard to the 1st (…), 2nd (…), 6th (…), 7th (…), 8th (…), 12th (…), 13th (…), 15th (…), 16th (…), 19th (…), 24th (…), 25th (…), 26th (…), 28th (…), 29th (…), 33st (…), 35th (…), 36th (…), 38th (…), 39th (…), 40th (…) and 41st (…) accused and after a contradictory procedure for the remaining,

Declares the appeals unfounded,

Confirms the contested decision,

States that the Belgian State and the civil party will each bare their own costs,

Condemns the Belgian State to 1/4th of the cost of the Cassation appeal, estimated on 323,55 euro,

Condemns the Turkish State to 1/4th of the Costs of the Cassation appeal II, estimated on 323,58 euro.

The hearing took place in a closed session.

Only the Dutch language was used, except regarding the translated part.

Done at Brussels, in extraordinary session, on 8 March 2019.

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