KCK LAWYERS TRIAL – Trial Observation Report / Hearing of 28th March 2013
Tony Fisher – Report of hearing at Silviri Court Istanbul
• In November 2011 mass arrests of some 46 Kurdish and Turkish lawyers took place in raids carried out simultaneously in many Turkish cities and provinces.
• The arrest of these lawyers is linked with many thousands of other arrests which have taken place, mainly of Kurdish Turkish nationals, since 2009. Most of those arrested have allegedly had some connection with a Kurdish organisation established by Kurdish leader Abdullah Ocalan, namely the union of Communities in Kurdistan (otherwise known as the KCK).
• The trials of these individuals, including the lawyers’ trial, have become known as the KCK trials. In all some 8,000 defendants have been charged with terrorist offences. They include politicians, journalists, academics and other human rights defenders as well as the lawyers.
• The factual link between the lawyers arrested and charged in this case is that they have all, at various times, and for various lengths of time, acted as representatives of Mr Ocalan. Previous hearings have taken place in July 2012, on 6th November 2012, and 3rd January 2013.
• the essence of the case against each of the defendants is essentially the same i.e. that in their capacity as lawyers for the PKK leader Mr Ocalan they effectively acted as “mediators” who provided members of an illegal organisation with “information and direction” from Mr Ocalan and as such were involved in the “strategy and management” of an illegal organisation as part of a leadership committee.
• The hearings have been attended by members of the international legal community who have prepared various reports criticising apparent breaches of articles 5, 6 and 8 of ECHR, (both in relation to the defendants themselves and in relation to the breach of confidentiality of other clients of the accused lawyers); and under article 8 (in relation the invasion of family life resulting from searches of the defendants homes and intercepts of their private conversations with their professional colleagues, their clients and their families). There has also been much criticism of the government’s failure to respect the United Nations Basic Principles on the Role of Lawyers adopted in 1990, and the apparent identification of the lawyers with the clients they represent.
• Methods used to collate evidence, including the use of telephone intercepts, search warrants in relation to both office and personal accommodation, and detailed analysis of publications made and interviews given by various defendants to the media, have also received international censure. Other forms of surveillance (including “technical searches” making use of telephone signals to identify the geographical location of defendants) were also used in collating evidence. Items confiscated and examined included hard disks containing confidential client information with regard to other clients, together with the Defendants’ physical case files. These were subject to detailed scrutiny by the police. Evidence of the contents of confidential client files has been used against the lawyers to try to establish their own involvement in terrorist activities. Efforts to secure that such evidence, tainted with alleged illegality, is excluded from the case, have failed.
• The majority of the lawyers have now been in custody for nearly 500 days. Of the 46 initially arrested 28 remained in custody at the time of the March hearing.
Events since previous hearing
At the time of the previous hearing in January 2013, a dialogue had just begun between government representatives and Mr Ocalan in a further attempt to broker a peace process in relation to the Kurdish issues in Turkey. Those discussions have continued during the intervening months and it appears that progress has been made. In the weeks prior to the latest hearing Mr Ocalan issued a statement, widely circulated by the government, announcing a cease fire by the PKK. A mood of greater optimism has therefore developed with regard to the prospects of a lasting peace. It remains very early days in this respect.
A further significant development has been the passing of a new law which allows Defendants to conduct their defence in their native tongue. Whilst it is an imperfect implementation of the right to use the Kurdish language (since Defendants have to provide and pay for their own interpreters) it is nevertheless felt to be progress.
Despite these positive signs of progress, there have been further arrests and detentions of lawyers since the previous hearing. On 18th January 2013, during raids carried out in seven cities spread across Turkey, another 15 lawyers were arrested and detained. Most were members of the Progressive Lawyers Association and/or worked for the People’s Legal Aid Bureau, organisations whose lawyers are known for their work on human rights and torture issues. On 24th January four Ankara lawyers were sentenced to imprisonment for long periods for alleged membership of a terrorist organisation. There are further allegations of mis-treatment and the unauthorised taking of intimate DNA samples from many of these lawyers. Nine of the lawyers arrested on 18th January 2013 were appointed as defence lawyers in the present case.
The international legal community has responded forcibly to these events. Amongst the many reports and submissions made is a letter written by the President of the Law Society of England and Wales to Prime Minister Erdogan on 8th February 2013 calling for:
1. The immediate release of the arrested lawyers on bail whilst their cases are progressed ;
2. Steps to be taken to ensure generally that lawyers are able to perform their professional duties without intimidation, hindrance, harassment or improper interference including those who represent individuals accused of terrorism or other criminal activities aimed at the government;
3. Steps to be taken to ensure that prosecuting authorities do not identify lawyers with their clients or their clients’ causes as a result of discharging their functions;
4. The Prime Minister to secure the full implementation of all International and all European obligations ratified by Turkey concerning the right to a fair trial, i.e. Art. 14 of the International Covenant on Civil and Political Rights, Art. 6 European Convention on Human Rights, and the full respect in Turkey for the UN Basic Principles on the Role of Lawyers; and
5. Steps to be taken to ensure police and judicial officers are provided with education and training about the rights guaranteed by the ICCPR and ECHR and Turkey’s legal obligations to ensure effective protection of those rights for all.
Further representations have been made to the Turkish government from the Office of the United Nations High Commissioner for Human Rights. On 2nd February, the High Commissioner wrote a letter to the Turkish Prime Minister, Mr Erdogan, signed by no less than five high ranking members of the Office, namely three Special Rapporteurs together with the Chair-Rapporteur of the Working Group on Arbitrary Detention and the Independent Expert on minority issues. In the letter concern is expressed:-
“that the arrests, charges and criminal proceedings brought against the lawyers in the present case are mainly linked to the contacts they had with their clients within the scope of their professional duties and the legitimate exercise of their profession.”
Concern was also expressed (as it has been before by the UN) about the broad definition and interpretation of the crime of terrorism and the notion of “membership of an illegal organisation” within Turkey and its impact upon fundamental rights such as the right to liberty and the right to freedom of expression.
Other evidence of pressure being put on lawyers representing “unpopular” defendants is also available. It is not a purely Kurdish issue. The government has opened an investigation against the President of the Istanbul Bar Association for criticisms made of judges in their handling of the KCK trials. Despite political differences concerning certain Kurdish issues, the members of the Istanbul Bar Association have given substantial support to the defence of the lawyers in the present trial and also given invaluable assistance to myself and other members of the international legal community who have attended the hearings as observers. Many have put themselves at risk in order to protect the fundamental freedoms of the Defendants.
The Hearing on 26th March 2013
The hearing was again conducted at Silivri, in a courtroom within a prison complex outside Isanbul. This time the hearing took place in a smaller court than that used in January. Since a larger contingent of international lawyers attended the March hearing, conditions were very cramped. In all roughly 40 observers were present from the United Kingdom, France, the Netherlands, and Germany. Similar security arrangements were in place as had been seen in November although with a reduced “headcount” of security personnel.
The Hearing
The day consisted for the most part of a series of representations by the Defendants themselves in answer to the charges brought against them, and the evidence upon which the prosecutor relied. In all, 20 Defendants were heard. As before, I do not intend to name individual defendants, but a number of themes were followed with various intensity by the Defendants:-
• Use of the Kurdish language – Since the law providing for Defendants to choose the language in which they conducted their defence had now been passed, the majority of Defendants spoke through an interpreter. Comments such as “for 100 years I have been waiting for this day. For the first time I can express my mother tongue in a court room” were frequently made. This was regarded as a very important step forward, and allowed for the trial to continue in some semblance of normality.
• A common theme amongst all defendants was their conviction that they were being prosecuted because they were “doing their job” of being lawyers. That they were being judged because of the client/lawyer relationship between themselves and Mr Ocalan. “The government are talking to Ocalan but we are prosecuted for doing so” was a frequent plea. Others claimed that the trial was essentially throwing aside their identity as lawyers whilst they were protecting the fundamental position that any client can choose a lawyer and any lawyer can choose a client.
• Various representations were made calling for the independence of the judiciary from government pressure. Strong criticism was made of the judges for their previous refusal to exclude evidence illegally obtained. “If we are not judged on clear undisputed evidence then the Fruit of the Poisonous Tree principle is engaged and the trial will not be legitimate” was the cry of one of the defendants. Further criticisms were made of the judges’ refusal at previous hearings to hear evidence in Kurdish despite the fact that a law allowing for this was passing through parliament.
• Numerous complaints were made concerning the political motivations behind the prosecutions. “We feel that we are hostages of this process so that we can be used as leeway in negotiations with Ocalan” was one cry. Others made strong political statements themselves concerning the position of the Kurdish population generally in Turkish Society.
• Much of the advocacy was interspersed with classical references – “Aristotle said humans are thinking beings, that is what separates us from the animals. That is why we pursue the truth.” Even William Shakespeare was quoted. “the first thing we will do, let’s kill all the lawyers” (from Henry The Sixth Part 2 Act 4, given as an example of the government’s approach to the prosecution of lawyers representing unpopular defendants).
• Numerous speeches commenting on the evidence claimed that legitimate articles written in legal journals, mainstream newspapers, together with speeches given at conferences which themselves were perfectly legal were used as evidence against the defendants in the indictment. In one case even journalistic work undertaken by a relative of the accused overseas was being used against him as evidence. Much of this evidence had resulted from google searches made against the Defendant’s names by the police.
• Three of the defendant’s claimed that they had been previously charged with the same offences arising out of the same facts and had been acquitted. Clearly there are issues with regard to the double jeopardy principles in these cases.
• One lawyer only represented Mr Ocalan in ECtHR cases and had never even seen him, and neither had he been included in any emails referred to in the indictment
• A number of defendants questioned the role of the police in the indictment. The police were accused of usurping the role of the prosecutor and substituting their own opinions. It was claimed that the prosecutions did not result from the independent decisions of the prosecutor. The police reports had become the indictment
Commentary
This was the first hearing during which direct statements from Defendants had been heard. They spoke with one voice with regard to their conviction that they had all been prosecuted only because of their legitimate role as legal advocates for Mr Ocalan. As with their own representatives, the majority of speeches directly addressed the evidence but political and cultural issues were inextricably linked with legal issues and principles. Notwithstanding the difficulty of translation, many clearly spoke with great eloquence, with passion, and without fear of the consequences for themselves. Whatever else they are, these men and women appear brave, determined, and dedicated to their professional calling.
For western lawyers struggling to make sense of this apparent persecution of their professional colleagues in Turkey their determination is inspirational. They deserve our continued support. Their plight is a chilling illustration of how far things can go wrong if the role of the lawyer is not protected, the normal checks and balances against abuse of power by prosecutorial authorities are not respected, and those checks and balances are not enforced by an independent judiciary.
At the end of the day four further defendants were released on bail. 24 remain in custody.
The trial resumes on 20th June 2013
Tony Fisher – Human Rights Committee – Law Society of England and Wales
2nd April 2013