Leyla Güven is HDP MP for Hakkari, co-chair of the Democratic Society Congress and former mayor of the municipality of Viranşehir in the Şanlıurfa Province of Southeast Anatolia of Turkey, where she represented the former Democratic Society Party
11 January 2021
Interview translated from T24
Your client Leyla Güven was sentenced to 22 years and 3 months of imprisonment. Receiving an arrest warrant alongside a sentence is not quite common. What warrants this course of action? Is it appropriate in the case of Leyla Güven as she attends her depositions and hearings; someone whose address is known?
Even with all the unlawfulness Ms. Güven has faced throughout her career in politics, these last three years still contain certain “firsts”. The most recent involving the order of detention she received during her sentencing hearing, which is not in line with the existing criminal procedure law. Normally, to be in accordance with the constitution’s 19th and European Convention on Human Rights’ 5th clause, they should have abided by the “equality of arms” and “adversarial jurisdiction” principle. However, this arrest warrant was given in Ms. Güven’s absence, without consulting the prosecutor’s opinion and without hearing our plea against it which is against Act No:5271 of Criminal Procedure Code. Besides, Ms Güven was exempted from attending trial and in the last month, has made two pleas for two continuing cases in Batman, whilst staying put. Moreover, she has not made an attempt to relocate even when her status as MP was unlawfully removed on 4th of June. Therefore, the decision to issue an arrest warrant with the sentence lacks legal basis. We had already objected to the arrest and received notification of its denial on January 4th. Date of the verdict was December 31st. This is another generic dismissal for them. Without considering the files we have prepared or discussing the legality of the arrest we were presented with a one-line rejection. We are preparing to make a personal appeal to the Constitutional Court.
As her lawyer you have been following this case from the start. Before discussing the trial, I want to ask, were you expecting this charge?
Since Ms. Güven is co-president of DTK (Democratic Society Congress) she was put on trial solely on her press releases and political speech. Due to the abandonment of all law principals in the past 6 years; we, including Leyla Güven, were predicting an illegitimate decision. She has experienced similar injustice in the past as Mayor of Viranşehir, by being exposed to Union of Kurdistan Communities (KCK) trials and receiving a prison sentence. Also we are all aware of the witch hunt regarding Democratic Regions Party (DBP) and Peoples’ Democratic Party (HDP) related representatives, politicians, NGO representatives attending DTK meetings; essentially anyone exercising their rights to organize. There were signs indicating there was not going to be a fair trial and the decisions made would be unfair and unjust. However, it is the first time they have given such a long prison sentence as well as issuing an arrest warrant with their decision. Due to the joint arrest warrant and sentence, Ms. Güven experienced another first by being detained at the Counter Terrorism branch for a night. If proper procedure were followed, Ms. Güven would have been taken to the courthouse to receive the arrest warrant in person. Not only was this not the case, we were prevented from accompanying her the next day when she was brought to the courthouse after her detention; and Güven was immediately sent to prison after a simple identification check.
As a legal expert you have been closely witnessing the controversial developments in Turkey’s judicial system. Could you please elaborate on the controversy in regard to Leyla Güven’s trial?
I have been in criminal and human rights law for 24 years. I have experienced the 90’s and the judge advocates of the military during State Security Court (DGM) trials yet, the situation is more dire now for they do not comply with written law or legal legislation. During that era there were terrible violations; villages were burnt and emptied, people in custody were lost, murders whose perpetrators were hidden. People were still tried and arrested for their ideologies, Democracy Party (DEP) PM’s lost their title and were imprisoned for ten years. Currently, nonetheless, we are facing a jurisdiction that feels no need to abide by written legislation and the Constitution. The law exercised for the opposition, the defiance, for the politicians they want to eliminate merely because of doing politics on behalf of Kurds is not lawful. It is called “enemy law” in criminal law.
You state the case that got Güven convicted is comprised of speeches and press statements. What kind of speech and announcements have laid the grounds for her punishment?
First, I would like to remind everyone of Güven’s first detention. Güven was detained for issuing a press statement on January 18th about Turkey’s new military operation in Afrin. The freedom of speech supposedly protected by the Constitution and European Human Rights Convention was ignored. She exercised her right to freedom of speech by criticizing the situation which is her main duty as a female politician. According to European Court of Human Rights her right to political freedom of expression is held at a higher regard. This freedom was ignored, and her detention was followed through. Later that same year, the government declared early election and Güven, who was in prison at the time, was nominated as a member of parliament and upon her election we applied to the court and demanded her release. The court accepted and decided to release her on bail with an international travel ban. We went to escort our client upon release, meanwhile the prosecutor objected to the court’s release order, and immediately this objection was accepted by the following court -10. The Heavy Penal Court- and her arrest warrant was reissued. At the time, we were unaware of this and waiting for her release in the courtyard of the prison she was kept at. Her new arrest warrant was declared to her without any of her lawyers present. To be honest, even though the court has grounds to object to the continuation of detention, there was no ground to deny bail. Our first experience with this implementation occurred January 2017 with İdris Baluken, an HDP MP at the time. Mr. Baluken was granted bail at his first hearing but was unlawfully arrested again upon objection from prosecutor via different court. Later this procedure was legalized by the Decree-Law. All these violations are being registered at ECHR. We will all see in the next few months that ECHR will come to a decision regarding the unlawfulness experienced by all of the detained representatives. As a result, the 27th time electee Ms. Güven was released on bail 25th of January 2019 and was unable to represent her electors, could not participate in legislative activities or exercise her constitutional right to political party activity, during that 7-month period. Another injustice Ms. Güven faced throughout this trial is in regards to combining cases from similar offences. Although the Batman Penal Court of First Instance has requested the combining of the files three times in last month, Diyarbakır 9th Heavy Criminal Court did not respond and for this reason, no time was given to us at the decision hearing. Therefore, a political decision was made hastily without any defense on the merits. The reasonings of appeal that we have made in terms of rules and procedures are quite comprehensive; however, how much will these unlawfulness be evaluated during the appeal phase; we will see together.
What does this mean? Are you saying Güven was penalized multiple times for the same offense during her trial?
Yes, Leyla Güven’s trial contradicted the “Not being tried and punished twice for the same crime” principle. She was penalized multiple times for the same offense. Güven is experiencing an immense injustice. What the HDP and Peace and Democracy Party (BDP) politicians have been facing for the past 5 years is a political attack from the hands of the judiciary system.
During the trial almost none of your requests were met, during the final hearing you were denied extra time. What did you feel as a lawyer throughout these proceedings?
The law carelessly exercised in the last 6 years, especially towards HDP related politicians has made its mark. These injustices occur so openly and often and are only covered by the opposition’s media outlets. Whereas, Ms Güven calls for peace and statements about a democratic solution for the Kurdish problem were met with attacks from the government and its media related supporters. Therefore, Ms Güven was targeted by the government’s anti-democratic and discriminatory approach multiple times. Throughout this recent period that led to her heavy imprisonment sentence she was also singled out, threatened, and insulted. But she never gave up on defending her beliefs and trying to bring to life the politics she believes in by defending her people as a Kurdish woman. Ms. Güven has been stating from the start of her trials that she is not facing the jurisdiction but rather the diplomacy. She was proven right with time. Because neither our experience throughout nor the final decision has got anything to do with law. We are talking about a process where we as lawyers were not even given the chance to defend.
What kind of process is next?
The reasoned decision was notified to us. We will issue a comprehensive objection. The objection to the arrest is also continuing. I hope and wish, even after all the unlawfulness we faced that this violation of personal safety and rights is not prolonged and Leyla Güven is released soon. Because after ECHR’s latest decision about Demirtaş it is undoubtedly proven that DTK is legal.
How will the decision of European Court of Human Rights affect Leyla Güven and the rest who were charged with DTK activity?
The result is a summary of the injustices faced in the last 6 years. The breach of the freedom of speech, the discriminatory arrests regarding Kurdish politicians, the sentences and observations about DTK make up a big part of it. They have clearly stated that DTK is a legal organisation. Because among the evidence presented to the ECHR file, there were official invitation that Cemil Çiçek, speaker of the Grand National Assembly of Turkey at that period, have sent to DTK for Constitutional Reconciliation Commission studies and DTK’s written opinions containing the constitutional amendment. We put the same evidence in Ms. Güven’s file too, but as I mentioned, due to this being a purely political trial rather than a legal one, they were dismissed. ECHR Grand Chamber decisions are final and binding; therefore Güven should not only be granted bail but even acquitted. The decision that should be made urgently at the appeal stage should only be to abolish this decision of the court of instance.
What does it mean that Güven and the others who were charged with the same offenses are still in prison even with this decision in place?
Every second Ms. Güven spends in prison is a violation of her right to freedom. She needs to be let out and acquitted as soon as possible. We have announced our request for her release to appropriate ECHR divisions. The culprits of the 2009 KCK trials of Kurdish mayors and Democratic Society Party (DTP) directors are known. The whereabouts of judicial members who initiated the operations, proceeded their trials, who signed thousands of rulings, are known. The picture we’re facing today is the continuation of a situation that has gotten progressively worse over the last 6 years. We used to say that jurisdiction had gotten political but now we are facing something even more dire. A governmental politics that does not abide by ECHR rulings, who rule over the jurisdiction and don’t even bother with trying to cover it up. At best we can call this the legalisation of politics. Everyone opposing them is declared a “member of a terrorist organization”, lynched. They go as far as to declare anyone who is not their supporter, a criminal. We are not without options though and we will not abandon our struggle for our rights. We know and believe that truth has a way of coming out. The last ECHR decision has revealed the truth. They are just trying to stall, that is it.