On the evening of the 7th of September 2018 at around 7.30pm having returned to my hotel room in Istanbul I happened to have a news channel on. I noticed as part of the headline news feed running across at the bottom of the screen, the following; “former co-chair of the HDP (Peoples Democratic Party) Sellahattin Demirtas has been sentenced to 4 years and 8 months for the propaganda of a “terrorist” organisation. There was no other commentary about it apart from this simple banner.
What was interesting about this method of reporting was that it deliberately gave no room for context and or analysis for the piece of “news” in question. Based on the backdrop of a complete media embargo on reporting the various prosecutions against Mr. Demirtas it is difficult to therefore regard this as ‘news’. It was rather a continuation of the campaign to criminalise the former pro-Kurdish leader of the HDP, the third largest political party in Turkey and through him an entire people. Unfortunately, this level of misinformation and deployed methods of criminalisation is exactly how the Kurdish civil society movement for peace and human rights is being marginalised by being portrayed as the criminal “other”. My immediate thoughts about the banner ‘news’ was how it completely resonated with the Courts approach and the injustices that we personally observed.
What did in fact happen at trial on the 7th of September 2018 at which I was personally present along with Margaret Owen as human rights lawyers from the UK to observe the trial?
I must say from the outset, that as a lawyer of over 15 years’ experience in the justice system, I have never witnessed such a blatant betrayal of the rule of law, the right to a fair trial, justice and all recognised international legal principles of fairness and due process from fellow professionals whom form part of our wider profession (judges and prosecutors). I was embarrassed to be sharing, what is said have been a Court room, which bore more resemblance to a football stadium, in both size and seating arrangements. Clearly designed for mass political trials, the room was approximately 40 meters by 65 meters. We, the international observers were allocated seats in the middle, but this was nowhere near enough to clearly see and hear the proceedings unfold. From where we were sitting, it was difficult to make out the figures of the judge, his two co-judges, the prosecutor and the group of defence lawyers. Mr. Demirtas’ supporters were corralled into the very back of the court, but in the centre and front, were scores of police and jandarma. Huge video screens were placed on either side of the podium. On the screens we could dimly make out the figure of Mr. Demirtas sitting at a table.
I was embarrassed to be sharing the legal profession with prosecutors and judges whose conduct was simply devoid of any integrity toward our common profession and the very basic principles on which it was founded to defend. I was professionally embarrassed for the judges and prosecutor who simply lacked the very basic requirement of fairness in such proceedings; independence.
The defence lawyers began by repeating and insisting on their submissions that this trial is conducted with immense administrative and procedural irregularities since the charges of under terrorism legislation were never put to the defendant in court, contravening Turkish Penal Code. The full indictment was never read in open court so that the defence could answer to it. Mr. Demirtas is said to have provided a full defence to the court, when in fact he has only provided one to the administrative and procedural irregularities. The lawyers further asserted that the poor quality of the video link makes it unfit for a fair trial and that their client should have been produced in person. They further contended that their client had only received the prosecutors alleged findings and questions two days prior to this hearing, when they could have sent them weeks, even months earlier, giving him proper time to respond. To this end, their first application for an adjournment to allow him time to prepare was refused. Any further insistence by the defence lawyers of this irregularity was met harshly by the judge whom ordered them to “sit down” and only talk when asked to.
How we long to report back with a proper legal analysis of our observations, but this simply is not possible when the proceedings are without doubt politically motivated show trials.
The charges stem from a speech that Mr. Demirtas made during the historic Newroz celebrations in 2013. The context in which the speech was made was significantly a build up from the ongoing peace talks between the Turkish government and Kurdish representatives for a peaceful resolution to the Kurdish question. It was the first time in the Turkish republics history that any government had reached terms of agreement between the parties and pronounced them publicly through a televised signing ceremony. Again, significantly Mr. Demirtas and the HDP (then HDK (Democratic Peoples’ Congress)) were instrumental in brokering the negotiations between the PKK and the Turkish government. Whilst the entire country including the ruling elite, media and all concerned parties were speaking of a peaceful resolution and pronouncing these ideals publicly for the first time, Mr. Demirtas some 5 years later is now facing a trial for supposedly inciting violence by making propaganda for a “terrorist” organisation during his said speech. He is said have remarked;
“Have you ever guarded a watchtower at midnight in Şırnak? I would like to invite those who say they will flatten Kandil; let them put a G3 weapon on their shoulder and stay on watch at the Gabar Mountain for one night and then see whether Kandil can be flattened (or razed to the ground) or not?”
Whereas in fact Mr. Demirtas said this in reaction to the MHP (Nationalist Front Party) party’s leader’s remarks aimed at ending the peace talks; “we will flatten the Kandil mountains if necessary”. Mr. Demirtas was essentially stating that it’s the children of the poor that are suffering and dying as soldiers on the mountains and they are calling for peace. If you think it’s easy, then I invite you to go to the mountains and added “are you a politician or a bulldozer operator”.
Not only are these remarks in fact in defence of the then peace process, all the concerned parties including the ruling elite were inviting the MHP leader to resign. This remark however is now deliberately being misconstructed by a ‘Court of law’ so as to lend meaning to a more sinister context, in that Mr. Demirtas was making propaganda for the PKK, which naturally leads us to question as to why Mr. Demirtas would advocate violence when he and his party had worked tirelessly for a peaceful resolution? It is simply nonsensical for Mr. Demirtas’s words to be misconstructed to have a sinister meaning.
When it was Mr. Demirtas’ turn to speak, he explained for well over an hour and produced newspaper after newspaper reporting on his 2013 Newroz speeches, which at the time were in line with President Erdogan’s own policies promoting the peace process. Again, and again, Mr. Demirtas denounced the Court for totally ignoring the context in which his 2013 speeches were given. Mr. Demirtas stated that “It’s not my wish to attack the court system, but you have so manipulated and exploited the court rules and mechanisms to destroy my chances of having a fair trial”. Indeed, the judge stopped Mr. Demirtas twice in his tracks whilst delivering his speech and stated that he had been given enough time.
A further misconstructed term is the use of the acronym HDK, when during the said speech, “we as the HDK” (i.e. the then People Democratic Congress) is now being interpreted as “we as the PKK” for the purposes of this prosecution.
Despite numerous written and oral submissions by the defence the Court has rejected without reason requests for an independent expert to have the said speech analysed and transcribed independently. Whilst this is a flagrant breach of the defendants right to a fair trial, the Court, has simply preferred the fabricated transcripts transcribed by police officers to make out an offence.
This in fact forms the crux of the prosecution case and in the face of rigorous defence submissions for the appointment of an independent expert the prosecutor, at a previous hearing, agreed with the defence in that the recording should be independently transcribed. Despite this however, the Court has simply ignored all such submissions and requests. As a result, the defence decided to play the recording which they had requested from a national TV channel in open Court at the final hearing. The judges listened to the recording through which it was made plain that the police transcripts were indeed fabricated. Notwithstanding this the Court once again refused permission for an independent expert and proceeded to a finding of guilt and passing of a prison sentence.
Instead of preserving the rule of law and ensuring the delivery of a fair trial, so eager was the Court to move swiftly to a finding of guilt and sentencing that they set aside a mere 10 minutes to purportedly read at least 4 dossiers prepared by the defence containing Mr. Demirtas’ 150 page defence, numerous domestic and international precedent case law, numerous newspaper exhibits highlighting and supporting the efforts of Mr. Demirtas and the then peace process and numerous statements by the members of the ruling elite again in support of the peace process. Whilst it would be an insult of anyone’s inelegance to suggest that the said material was in fact read and considered adequately within 10 minutes, the reality was more likely to be a predetermined decision and the said 10 minutes a necessary process of the show trial.
It was the shared view of the defence lawyers that the sentence passed on Mr. Demirtas was purposefully kept below the five-year fresh hold as a method of creating a legal bar for him to seek legal redress at the Constitutional Court.
When asked whether he had any final remarks before the judgement and sentence was passed, Mr. Demirtas stated that “this trial is clearly an appeasement of the current collision partners, the MHP and therefore revenge for the peace process and our efforts during the negotiations for peace. I stand by what I said and would echo the same speech now, as I am not in favour of violence and bloodshed. I am in favour of peace and a democratic resolution to the Kurdish question”. “Fascism will not win” he said and continued his remarks by likening fascism to a “candle with a flame on top; as the fire burns, fascism will melt away, the fire is not a beam of light for fascism, it is us and our determination to defeat and melt fascism to its knees”.
The flagrant breaches of the very basic established legal principles have meant that justice was not only not delivered in this trial but presented a scandalous disregard for the need for a sense of justice. In a country that has a questionable legal system, the manner in which this case was conducted simply adds further embarrassment.
No matter what political or other belief a person happens to advocate, everyone has the fundamental right to be tried fairly by an independent court of law. This is a key ingredient of democracy and democratic process.
I hope and trust this account provides the necessary context and analysis for the shameful ‘news’ headline banner reporting the result of this case the justice it deserves.
Av. Ali Has