This week a UK delegation of six barristers and solicitors travelled to Istanbul to observe the sixth hearing of the KCK trial of lawyers, a major anti-terror trial in which 46 lawyers representing Kurdish leader Abdullah Ocalan are being tried on mass for their association with him as their client.
In this hearing the final 16 defendants whose case had not yet been heard were able to present their defence. None were released on bail, and so must endure continued imprisonment on top of the 22 months they have already spent in pre-trial detention until the next hearing, scheduled for 19 December.
The delegates included international human rights barristers Margaret Owen OBE, Hugo Charlton, and Mark Jones of St Ives Chambers, as well as Tooks Chambers’ Bronwen Jones and Law Society Human Rights Committee member, Tony Fisher and Ali Has, solicitor and representative of the Law Society Human Rights Committee International Action Team.
We will bring you reports and statements by the delegates in the near future. In the meantime, Margaret Owen has written three blog posts giving her observations of the highly political hearing, which are below.
All of our delegates reports and statements on the trials, as well as our actions here in the UK to bring the issue to wider attention, can be found on the International Observation of the KCK trial of Kurdish Lawyers page.
Blog 1: Monday 16th September 2013
We, five UK lawyers forming the UK delegation to observe and report on the trial of the Kurdish lawyers, have once more arrived in sunny Istanbul, to attend its 6th hearing, tomorrow, Tuesday.
This evening we will be gathering, with the other lawyer delegations from several European countries – notably, France, Germany, the Netherlands – at the offices of the Istanbul Bar Association to be briefed by the defendants’ lawyers on developments since we were last here in June. And to learn from them what are the most likely outcomes from the proceedings in the Prison Court at Silivri Prison. A long hot two hour drive from the city.
The 45 Kurdish lawyers, whose client is the Kurdish leader, Abdullah Ocalan (incarcerated for the last 13 years on the island of Imrali) are charged under the anti-terror law, accused of being members of an underground terrorist “Leadership Committee”‘ headed by the Kurdish leader. But, as I have written in previous blogs, these hearings are in fact political trials; the evidence is extremely flimsy, indeed, as the defendants’ lawyers continually demonstrate, totally fabricated.
What is deeply shocking about these trials, and common to so many trials under the Turkish judicial system, is the common practice of pre-trial detention. It is now nearly 2 years since these lawyers were arrested and imprisoned. Although over a long series of short hearings, several lawyers are bailed each time, still 16 lawyers remain in prison.
Again and again, at each hearing (only one day is allowed for this case and adjournments are at 3 monthly intervals), the lawyers defending the lawyers argue for the immediate release on bail of all those in detention, and they will argue again on the same grounds tomorrow.
The use of pre-trial detention has until now been a side issue in the hearings. We predict that tomorrow the lawyers’ lawyers will make it a central one, and ever more robustly demand the release of all the remaining detainees, either on bail, or, better still, the dropping of all the charges and the acquittal of all the 45, so that they can return to their professional work, and be again united with their families.
But this week the geo-political scenario is hugely changed, and may well have some bearing on how the judge, of course a servant of the State and the AKP government, will determine this long on-going case.
The oppression, arrests, detentions of the Kurdish lawyers representing the Kurdish leader, the detention of over 10,000 political prisoners, clearly breach international human rights laws. But right now the AKP government is supposed to be in peace talks with Ocalan, and on his instructions, the PKK has started to withdraw its militias back to Northern Iraq. If Turkey’s Prime Minister Erdogan is serious about making peace, then his party would have to implement their side of the agreement: inter alia, to release the political prisoners; to reform, in consultation with the BDP and Kurdish civil society organisations, the Constitution; to change the electoral “threshold”, permit education in the Kurdish language, and curb the excessive oppressiveness and violence of its police force that has acted so viciously in the last months against peaceful protesters across Turkey. Turkey also needs a total overhaul of its medieval justice system which is quite incapable of delivering justice and where judges and prosecutors are far from independent.
But Istanbul today already looks a different place to the city we were in last June. One is aware of the many Syrian refugees among the crowds. Also of the change in the behaviour, attitudes of the remaining protestors as a consequence of the increased violence and oppressive practices of the police.
They are using pepper-spray rather then water-cannon to clear the streets of those protesting the killing of 22 year old Ahmet Atakan on September 10th in Antakya. We have learnt that there has been a clear shift in policing, with “scorpions” (small tank-like cars from whose roofs an armed policeman can shoot) now able to chase protestors into small side streets and residential areas.
We all hope that the peace process will not be interrupted. In spite of the complexities of the Syrian crisis and Turkey’s problem in relation to the Syrian Kurds, attacked by both the Assad regime and many of the diverse groups in the Syrian opposition supported by Turkey.
I realise as I write that these contextual factors are not legal, but political but they do have a bearing on how the state-employed judge and prosecutor will decide tomorrow’s trial, so I cannot avoid these References. This is after all a Political Trial. Lawyers in these circumstances are made powerless, and discredited. Which is why it is so important that we have international lawyer delegations to observe and report as we will do tomorrow.
Blog 2: Monday evening, September 16th 2013
At the office of the Istanbul Bar, this evening, the international delegations were addressed by the defence lawyers and from one of the bailed lawyer defendants about what we can expect from the court tomorrow.
Only one of 16 detained defendants has not yet had his defence put before the court. His lawyer will argue his defence first, followed by the presentation of the defences of 11 bailed defendants whose defences still need to be heard. The defences of the remaining 34 lawyers have been dealt with, although the judge has given no indication of his verdict.
Once the defence lawyers have stated their case, they will again repeat the request they have made in previous hearings: that the appearance in the court of the chief witness, Abdullah Ocalan is speedily facilitated. Up till now the judge has postponed answering this question, so the lawyers will repeat their demand in the strongest terms at the close of the proceedings.
According to defence lawyer, Rezzan Sarcj, the defence team will also challenge the new law regarding Kurdish interpreters and translators as being “unconstitutional”, on the grounds that it requires that Kurdish defendants “pay” for these services. In all other cases where interpreters are required in Turkey’s courts the service is free, and the service providers are selected from a court list. The defence will asking for leave to make an application to the Constitutional Court to change the law on this issue.
Several of the imprisoned lawyers are, we heard, refusing to pay for translators. At the June hearing the new law had not been formerly enforced, but translators were appointed as a temporary measure. There is likely to be some heated arguments about the discrimination in this recent legislation. The President of the Court had, it is said, earlier agreed that the defendants could bring their own interpreters to the hearings. This controversy needs to be resolved if the trial is to proceed at all with at least a tiny semblance of fairness.
But, apart from the question of translation and interpretation, there are so many other defects in the procedures that deprive the defendants of justice.
No new evidence has been submitted by the Prosecutor to support the indictments; no further witnesses have been called. There has been no due process. And since this Judge refuses to give more than one day to the hearings, it is unlikely that the trial will be completed tomorrow. So yet further adjournments.
The economic and social plight of the defendants is acute. Those on bail are prohibited from practicing their profession, and until recently have been banned from leaving the country. Where the bail conditions have been relaxed, the lawyers are not allowed to act in ”political” cases. Who decides what cases are political and which are not is unclear. In Turkey everything is political.
The bailed lawyers also speak of continual police harassment, bugged telephone lines, and other forms of interception of communications with colleagues, clients, friends and family. They say they are ”followed” in all their ordinary activities. Potential or former clients are also threatened by the police.
With the government making no moves to play their promised part in the peace process, although this week Erdogan has declared he will announce a “reform package” to improve relations with its Kurdish population, it seems unlikely that the Judge will respond in any positive way to the defence arguments.
There could be yet another stalemate. The case dragging on and on, along with other trials indicting lawyers in Diyarbakir as well as in Istanbul. If only Penal Code Article 304 would be repealed, all the political prisoners could be released. We will see what happens tomorrow.
Blog 3: Tuesday September 17th 2013
Some 30 lawyers from seven European countries (UK, France, Germany, Greece, Holland, Spain, Switzerland), crowd into buses at Taksim Square in Istanbul, taking us to the now familiar huge court house in the Silivri prison complex. We surrender our passports, mobile phones, iPads, and are screened to enter the building that is heavily guarded by armed Jandarma.
We meet again the many relatives of the defendants, men and women of all ages. At this 6th hearing, unlike the previous one, there are hardly any small children. But always attending is the young son of two defendants: his father is one of the 16 lawyer defendants who have been in detention since November, 2011, while his lawyer mother, after a short period in prison last year, was bailed on compassionate grounds for the sake of the child and today was speaking in her own defence.
The courtroom is vast, almost larger than an Olympic swimming pool. But we, the observing international delegation and the relatives are confined in the section at its very back so that it is impossible to see (unless one was equipped with binoculars) the judge, his two assistant judges, the prosecutor, the lawyers or the defendants. They are all so far away from us. Except that at the start, before and after the intervals, and at the end of the hearing those accused move up to the back end of their barrier, before being marshalled down the steps to the cells, to wave to their family members and friends. And to us. Several of the lawyer defendants we know well, we too wave back to them energetically to demonstrate our support and concerns.
We are, however, partially assisted by two huge screens which enable us to see the faces of those defendants and lawyers addressing the Judge. But the camera is never turned on the Judges and Prosecutors as it was last year.
The judge is so difficult to see at this great distance that we cannot note his body language or expression, when he apparently rises in wrath – as he does during this hearing – and gives vent to his anger at particular defence requests, the repeated criticism of his court, the Turkish justice system, and the political persecution of its Kurdish population in general. The positioning of the international delegation so far from the action of the court, is seen by some of us as a professional discourtesy, and more importantly, a failure to acknowledge the legitimate concerns of the international legal community.
However, the defence advocates and the defendants who are on bail warmly welcomed us in the Advocates’ room, and formerly in the court. Several of them, during the proceedings, thank us for not abandoning them in their struggle for justice and the right to undertake their professional work in freedom and without harassment.
It is announced that there is now not only a new Prosecutor, but also two new assistant judges (one of whom is a woman). We have concerns regarding these appointments made at such a late stage in the proceedings. Will the Prosecutor be sufficiently informed, having not been at the previous hearings, to make relevant legal submissions on the evidence and has he had adequate time to absorb all the details of the defence arguments? The appointments of two new judges, also concerns us for similar reasons. Is this just another ploy to delay the proceedings further?
Of the 46 lawyers on trial under the anti-terror laws, accused of being members of a so-called “Leadership Committee”, which is said to form part of larger KCK network affiliated to the PKK in the mountains and thereby to Abdullah Ocalan, only 28 are present in court, and hold up their hands as their names are read out in court. The other 18 having made their defences did not appear.
All the remaining 16 defendants in detention and their lawyers are finally able to argue their cases. The main requests to the Judge, which have been constantly repeated throughout the recent months are that:
a) all the charges to be dropped on the grounds that there is no case to answer.
b) if this is refused, the remaining 16 defendants still held in custody to be released on bail.
c) the production of the chief witness, Abdullah Ocalan, from his prison cell on Imrali Island, to this court. (This request has been made at each of the 6 hearings, but the judge always postponed his response), and
d) Submissions are made on the issue of payment for translation services, with applications being made to refer the issue to the Constitutional Court as was suggested last night at the pre-trial meeting we had with the defence advocates.
Throughout the long hot day defendants and their lawyers, sometimes speaking in Kurdish (as they are now permitted to with translators), and at other times in Turkish, challenged the collective indictments of all the defendants. They declare they were acting professionally as Ocalan’s lawyers, and never as his agents in the “fictional “ organisation dreamt up by the police and prosecution and named the “leadership committee”. They refute the accusations that the lawyers were messengers of their client, conveying terrorist-linked messages to the PKK, and plotting against the interests of the Turkish state.
Again and again, it was argued that there was no evidence for any of the charges. That in any case the great bulk of the dossier accusing the defendants of crimes was based on unlawful interceptions of e-mails, telephone conversations, the unlawful seizure of computers, hard drives, confidential and privileged correspondence and files relating to the lawyers’ work in relation to their obligations as lawyers to represent their clients. The most innocent of overheard eavesdropped telephone conversations were given the most bizarre and sinister interpretations. Even had this information been admissible as evidence, the lawyers argued that it would still not have proved any of the Prosecution case. It was argued that 99% of the prosecution case, was simply highly subjective police opinions.
Occasionally the Judge asked a question. For example, he addressed one of the defendants “why did you go to visit Ocalan in July, 2009? What legal basis had you for going to the island? What did you talk about?” Such questions seemed pointless since the authorities had bugged and overheard almost every conversation their prisoner had held with his lawyers during the period they were still permitted to visit him in his Island cell. Besides, conversations between lawyers and their clients should be confidential and privileged.
One of his lawyers, a women advocate, answered “I visited him as his lawyer. I naturally had concerns about all aspects of his life in such a long incarceration including his physical and mental health. These rights are, after all, enshrined in the ECHR. We took no orders nor did we communicate any orders to any illegal organisation.”
Other defendants highlighted the hypocrisy in criminalising all contacts and conversations they had with the Kurdish leader, who was their client, while representatives of the government, and with its permission, BDP members could visit him without censure!
The lawyers attempted to draw the judge’s attention to the Turkish domestic law – the Turkish Lawyers’ Codes which define the roles and rights of lawyers. They suggested that he should not be posing the questions he asked, and that the way he manages this trial shames the Turkish justice system in the eyes of the international community, and the legal profession across the world.
At this point, the judge rose from his seat and responded in fury “You cannot speak like that to me”. In a similar outburst he shouted at one of the advocates, “Sit in your place. Stop interrupting me!” And in a further “contretemps” when criticised for his refusal to respond to the defence arguments or key requests he again exploded, shouting “We will not be taught a lesson here! You may not comment on my approach or my manners in this court!”
Throughout the day there were inevitably long speeches decrying the procedures of the police, prosecutor and judge as being “fascist, with the characteristics of a police state”, and several of the lawyers launched into the history of Turkey’s persecution of its Kurdish citizens over nearly a hundred years. References were made to the killings, the disappearances, the forced evictions from mountain villages, the seizure or destruction of homes, farms, livestock and property, the ban on language rights, culminating in these violent actions to destroy even the rights of Kurds to be legally represented by placing so many Kurdish lawyers in detention. For there are other trials of Kurdish lawyers going on contemporaneously with this one in Diyarbakir and in Istanbul.
But, to the dismay of all the defendants, their lawyers, the relatives and us, the international delegation, when the Judge returned after a short recess to give us his decision, there was simply a short “No”.
“No” to the request to have Ocalan brought to the court as the key witness for the defence. “No” to the dropping of all charges for lack of evidence. And “No” to the release on bail of any of the 16 lawyers in pre-trial detention for the last 22 months. The case is now adjoined till December 19th.
Contrary to the requirements of Article 6 of the ECHR a judge must give reasons for his decisions. Here no reasons were given, which denies the defence the opportunity of formulating any grounds of appeal. The Prosecutor has not made any legal submissions on the evidence, apart from addressing the court for no more than 15 seconds and requesting the continued incarceration of the defendants and dismissal of defence requests.
There has been such a failure of due process, that, on so many grounds, that this was yet again another example of an “unfair trial” breaching all the norms of standard practice under Turkish, international, and European law. The practice of pre-trial detention, without any reasons, is also a violation of human rights.
It is important that we, the international lawyer delegations, return yet again to the Siliviri court in December so that these injustices are widely reported, and Turkey is made fully aware of its failings to comply with international standards of justice.
We can only hope that by then the peace process will have resumed, in spite of the present problems that have halted it, and that progress in this sphere will result in the judge, finally acknowledging there is no evidence to support the indictments, will release all the lawyers so they can return to practice in their profession in freedom and without fear.
Margaret Owen