Tony Fisher, member of the Law Society’s Human Rights Committee, has written a report after observing the most recent hearing in the case of Abdullah Ocalan’s lawyers, who were arrested in November 2011 following simultaneous police raids across several Turkish cities. The arrest of these 45 lawyers, all of them members of Ocalan’s legal team, formed part of the so-called ‘KCK operations’, in which over 8,000 people have been arrested for alleged membership to the Kurdistan Communities Union, the KCK.
Report of hearing at Çağlayan Justice Palace 7th May 2015
TRIAL OF KURDISH LAWYERS – ISTANBUL 7th May 2015
Background to this case
For the last two years and a half years the Human Rights Committee of the Law Society of England and Wales has, along with lawyers from a number of other countries in the EU and the US, been observing the trial of 45 mainly Kurdish lawyers who have been on trial in Istanbul, Turkey. This report should be read in conjunction with previous reports, in particular the report in relation to the hearing in November 2014, which gives a detailed narrative of the charges against the lawyers, the evidence relied upon, and a brief summary of the socio- political background of the “Kurdish issue” in Turkey. That report is attached.
The Hearing on 7th May 2015
As with all previous hearings, the day consisted for the most part of a series of representations by the Defendants lawyers, after the defendants themselves had been summoned to appear in front of the judge. A dwindling number of defendants have been present at successive hearings, and on 7th May this figure had fallen to just two defendants (out of 45) present in court. A series of reasons including illness and other commitments in other cases were read out by the judge to explain the absence of the other defendants. The team of UK international observers was also reduced. In fact I was the only lawyer present from the UK whereas there had been not less than four and up to 8 at previous hearings. There was still strong representation of the French bar however, and a number of other lawyers present from the Dutch and German bars.
A significant development had occurred during the days before the hearing. Two members of the judiciary had been arrested following their recent rulings for the release of a leading member of the media. Also dozens of police who were in pre-trial detention were released. This has led to criticism from members of the judiciary (including the former Supreme Court Appeals President) stating that they, the judiciary, are moving towards a situation where they have to take orders from the government. The Judges and Prosecutors Association, which represents both judges and prosecutors, also criticised the move as being a message intended to intimidate the judiciary when considering the release or acquittal of defendants who the government wanted to remain locked up. Clearly these arrests have important implications in relation to adherence to the rule of law in Turkey.
Another important fact was that all of the judges at this hearing were new. Despite the fact that the case had run for almost four years, none of the judges who had dealt with the case previously were present.
The principle arguments advanced on behalf of the defendants were as follows:-
- Firstly that they should all be acquitted on the basis that the whole trial had been pursued as a result of a fatally flawed and unfair procedure. An argument put many times before;
- That the prosecution was invalid anyway because permission had not been obtained to commence it, as required by Turkish domestic law; and
- That the abolition of the old “specially empowered” courts without any transitional provisions being implemented in relation to the cases which were ongoing in those courts had led to a situation where it was unconstitutional to continue with the trial, especially since, after this latest hearing, 11 judges had dealt with the case.
A new and novel argument was advanced at the hearing based on the fact that members of the judiciary were also now being arrested and charged in relation to terrorist offences after releasing unpopular defendants. Various advocates had pleaded at previous hearings that “one day you will be accused of being terrorists.” These representations had been dismissed at the time. However, bearing in mind the fact that two judges and four prosecutors had been arrested and charged over the previous few days, it was put to the judges that these early representations had been “visionary” and not an “advocate’s trick.” It was also alleged that some of the police officers who had carried out the investigations against the defendant lawyers in the current case had now been arrested and charged with falsifying evidence in other cases.
Outcome and Commentary
The application made for acquittal was refused on the basis that the judges were not in a position to acquit. No reasons were given for this decision. Neither was the case transferred to the Constitutional Court. It was adjourned to 22nd October 2015 with a “request” to the Constitutional Court to make the court in this case aware of its final decision with regard to similar cases which had been transferred from the courts abolished in February 2014. As with previous hearings the prosecutor remained passive throughout save for a one-line statement that the conditions did not exist for acquittal.
Continuing developments in the socio/economic and political environment which may impact on the continued progress of the case
The latest hearing has taken place after the United National Universal Periodic Review concerning Turkey’s human rights record which had an open session in Geneva in January 2015. The UN Country Team reported, as part of that review, that the Special Rapporteur on Judges had emphasized that lawyers exercising their professional duties in terrorism-related or organized crime cases should be able to perform all their professional functions without intimidation, hindrance, harassment or improper interference. Lawyers should have access to appropriate information and relevant files and documents. None of these principles have of course been respected in the present case and the position regarding the judiciary has been further weakened as a result of recent events.
The latest hearing has also taken place as the country steels itself for another general election in June. The President, Mr Erdogan, has become increasingly critical of the west, and there have been a substantial number of prosecutions of journalists, cartoonists and others who have made comments critical of him since he became President in August 2014. There have even been successful prosecutions of journalists who have “liked” adverse comments on Mr Erdogan on Facebook, or re-tweeted such comments, sometimes leading to prison sentences of up to two years. Meanwhile reports that the government has been arming jihadists in Syria have been banned, and two prosecutors who had been investigating illegal arms shipments to Syria (which it is alleged had been secretly sanctioned by the government) were arrested and charged with terrorism offences in the days leading up to the hearing. The government has strengthened its hold over the judiciary while the country’s intelligence agency and the police have been given wider powers (the former now having a secret budget under government control, and having wide powers of surveillance without judicial oversight). Mr Erdogan is said to be hoping to secure a large enough majority of representatives in the parliament after the election to enable him to amend the constitution and give himself wider executive powers. The economic performance of the country has waned as this more restrictive regime has gained momentum and economic growth has fallen to below 3% after a number of years (over the period 2002 to 2007) when it touched 7%. Corruption scandals have been a constant feature of the social and political landscape over the last few years, whilst the central bank has been under attack from the government for failing to reduce interest rates in accordance with its wishes. Institutional decay seems to be accelerating.
Notwithstanding this, efforts to get Turkey’s application for EU membership back on track are continuing. These had a very beneficial effect in the mid 2000’s in terms of encouraging reforms which built institutional strength, established greater judicial independence and improved Turkey’s human rights record. However substantial problems clearly still exist. In its October 2014 Progress Report the EU indicated:-
“The response of the government following allegations of corruption in December 2013 has given rise to serious concerns regarding the independence of the judiciary and separation of powers. The widespread reassignments and dismissals of police officers, judges and prosecutors, despite the government’s claim that these were not linked to the anti-corruption case, have impacted on the effective functioning of the relevant institutions, and raise questions as to the way procedures were used to formalise these. It is crucial that the investigations into corruption allegations are properly conducted in full transparency and the operational capabilities of the judiciary and the police are assured. Attempts to ban social media, later overturned by the Constitutional Court, and pressures on the press leading to a widespread self-censorship, reflect a restrictive approach to freedom of expression. The approach taken in the area of freedom of assembly remains restrictive. Turkish legislation and its implementation concerning the right to assembly and intervention by law enforcement officers will need to be brought in line with European standards.”
Further concerns were expressed with regard to the reforms to the court system and other provisions introduced in March 2014, the lack of consultation with regard to these and other reforms, and lack of transitional arrangements introduced to deal with pending cases in the courts which had been abolished. The general appetite amongst government authorities and the public for EU membership is also in doubt, with many people I talked to being of the opinion that there is more enthusiasm now for re-engaging with former “Ottoman” partners in order to expand trade than to join the poorly performing trading block of the EU.
Whilst all of this is going on, although it has been stalled on a number of occasions, the dialogue between the President Mr Erdogan and Mr Ocalan, the leader of the PKK, in relation to the Kurdish issues continues. Some progress has been made in terms of some issues such as the recognition of the Kurdish language, but as identified in my previous report, progress has been complicated by the conflict in Syria and Iraq where the PKK has been fighting alongside allied forces against ISIL.
Overall, civil society, lawyers, judges and journalists appear to have become increasingly embattled, with a judiciary afraid to make decisions which displease the government; a media which is self-censoring its output for fear of prosecution; and police and other security forces who are in some instances being provided with wider powers which could be used for further oppressive purposes on behalf of the government. This reluctance to engage with contentious issues seems to have extended into academia since despite a group of European lawyers having resolving after the last hearing to commission an independent report from an independent expert in Turkish Constitutional Law with regard to the case, it has not been possible to do so mainly due to a reluctance on the part of those experts approached to become involved.
Wider effects on legal practice in Turkey
On this trip I made arrangements to meet with UK lawyers who have experience of practicing in Turkey, both in relation to civil and criminal proceedings and in relation to general commercial practice. I wanted to determine whether, and to what extent, these rule of law issues were impacting on their day to day practice.
These discussions highlighted the following issues:-
- In terms of the civil justice system, this is suffering as a result of the numerous re-arrangements and transfers made amongst the judiciary. Historically, Turkish civil cases have been heard by a panel of three judges. This changed a few years ago, when in lower value cases a single judge was appointed to hear cases in order to expedite the hearings. However, after the changes made in 2014 the rules reverted back and a panel of three judges now sits again, principally it seems to ensure that decisions made do not result from any political prejudice on the part of any single judge. In terms of the administration of justice however this has led to increasing delays in disposing of civil cases, which were coming to trial in 12-18 months but which are now taking three years or more to be disposed of. Similar problems exist with regard to the enforcement of judgments, including UK judgements which are registered for enforcement in Turkey.
- Tensions within the judiciary have also become more apparent as their own position has been weakened. This is evidenced by a reluctance to finally dispose of cases for fear of incurring criticism for exercising the judicial function in a way which displeases the prosecuting authorities, the police, or the government. Recent arrests and prosecutions of two judges who exercised judicial discretion in this way to release defendants suggest that these fears are well founded.
- In view of the number of prosecutions which are being pursued, there is apparent evidence that many cases proceed without the prosecutor being present or being represented in court when many more minor offences are disposed of. This further hampers the effective disposal of cases, many of which now run on for many years.
- Commercial lawyers are complaining of delays and evidence of corruption in the trade registries which are slowing down company registrations and applications for other permissions or authorities necessary to pursue commercial transactions. One practitioner, whose firm also operates in other Asian countries, described the situation as becoming worse than in countries (such as Indonesia) which are ranked far below Turkey in terms of the prevailing practice of corruption. Another also described ways in which it appears that corrupt payments are being “legitimised” by describing them, for instance, as donations to charitable foundations.
- The situation outside the major metropolises such as Istanbul and Ankara is described as being worse. Pursuit of “local” defendants in local courts is described as much more difficult because of perceived “cronyism” on the part of local judges. The lack of any form of summary procedure to obtain judgement or strike out where spurious defences or claims are made, are exacerbating these problems.
Fears concerning the background of corrupt practice have been increased as a result of a decision via Turkish customs authorities to allow more or less unlimited amounts of cash to be brought into the country by those seeking business opportunities or to buy property. This has obvious implications with regard to the ability of the authorities to effectively monitor and enforce money laundering provisions.
The consensus amongst those I spoke to was that these practices and tensions are starting to have a negative effect on confidence amongst their Western European and American clients in the ability of the Turkish justice system to uphold the rule of law in an efficient and independent fashion. If left unchecked this in turn is likely to have adverse effects on those considering investing in, or continuing to operate, businesses in Turkey.
The overall picture concerning the rule of law and the administration of impartial justice in Turkey is clearly not looking favourable. The direction of travel seems very much towards a more authoritarian regime where the separation of powers necessary for the rule of law to prevail is not respected. How much further this goes, and the question of whether recent trends can be reversed, to a large extend depends on the outcome of the forthcoming elections. There do however appear to be a number of opportunities for the Law Society of England and Wales to engage with and support Turkish and Kurdish lawyers in Turkey involved in criminal and civil practice. It might also be possible to support those UK lawyers who are engaged in commercial practice in Turkey. Provision of training in trial preparation and cross examination, perhaps with some related human rights training for Turkish lawyers would certainly show solidarity with the lawyers trying to support their own colleagues in the KCK and other trials of lawyers in Turkey. Similar training was delivered in Diyarbakir in South East Turkey in 2013, and this could be offered (perhaps jointly with the British Turkish Lawyers Association) to the Istanbul Bar. From discussions with one of the lawyers it appears that the British Consul might make the venue available for no charge if funding could be found for travel and subsistence for the trainers. The UK lawyers could perhaps be supported by informal lobbying concerning practice in the trade registries. Further discussion could also identify additional ways in which the Law Society could help.
As stated, the KCK case has now been adjourned to October 2015. As has been the case throughout this trial the international legal community has a duty to stand by these lawyers to try and do whatever we can to secure that they ultimately receive a fair trial and a just outcome.
Human Rights Committee/International Issues Committee
Law Society of England and Wales
18th May 2015
 See Turkey Progress report at http://ec.europa.eu/enlargement/pdf/key_documents/2014/20141008-turkey-progress-report_en.pdf . Despite the Constitutional Court decisions regarding social media it has been reported that over 50,000 websites are now no longer accessible from Turkey.
 Between 2010 and 2013 the rule of law “Worldwide Governance Indicator” for Turkey published by the World Bank dropped from 59.2 to 55.9 (the indicator for the UK in 2013 was 93.89 by way of comparison).