Ocalan case now under international jurisdiction

Hasip Kaplan

Ocalan Legal Team

5 May 1999.

During the period between the 16 February 1999, when Abdullah Ocalan was brought to Imrali Island and today, the impediments facing the defense have reached the level of physical attacks. All the domestic remedies we have applied to for the securing of the right to a fair trial and the defense rights are still without any result.

Our applications and appeals to the President of Turkey, to the Prime Minister, the Minister of the Interior (Home Office), the Minister of Justice, the Chief Prosecutor of the State Security Court in Ankara and the President of the Second Chamber of the Court (SSC Ankara), in the same way as the appeals put forward by the Istanbul Bar Association and the All-Turkey Bar Association, have not brought any result.

Although our client had given the power of attorney to European lawyers earlier on, he has expressed the wish to be defended in the European Court of Human Rights by lawyers from Turkey and has invested us with special powers for that end. We went through the necessary formalities and handed in an application to the Court in Strasbourg on 8 April 1999.

We, the lawyers, have shown the necessary commitment to make best possible use of this last chance for Turkey to finally enter into a peace process and find a "democratic solution" to the Kurdish problem, and we will continue to do so. However, nothing has been done to respond to the interim measures the Court decreed on 4 March 1999 and to its decision that a fair trial be ensured and that the impediments to the defense be lifted.

The attacks on the defense team have been increasing day by day. Our demand for "immediate and efficient" measures that was the basis of our application handed in at Strasbourg on 21-22 April for the above mentioned reason was heard on 29 April. Our demands were accepted and the government was requested to respond by 30 June.

What is requested from Turkey in its response is details of its explanation on each and every one of the violations of law starting from Ocalan's apprehension in Kenya, until his detention on Imrali and the trial in the Second Chamber of the SSC Ankara. Taking into account the comment that we are requested to give on this response of Turkey immediately, the acceptability of the case will be decided upon. If the case is being accepted, the stage of an amicable solution between Ocalan and Turkey will begin and if this does not happen, the Court will start to hear all the witnesses in the trial.

What this means is that while on the national level the trial at the State Security Court begins on Imrali, the international Court proceedings at Strasbourg will have begun.

The second international court case we are preparing is going to be a suit against Greece, Italy, Germany, the Netherlands and Turkey together as far as appeals to domestic remedies concerning asylum, extradition, torture, violation of the right to life, security and freedom of the person and discrimination are being obstructed in each respective country.

This case during the course of which we aim to call all those persons and foreign secret services that were involved in the apprehension, from D`Alema to Simitis, from Demirel to Ecevit, will also be the subject of a case at the European Court of Human Rights in Strasbourg in the framework of the Council of Europe.

Concerning those countries which lie outside the jurisdiction of the bodies of the Council of Europe such as Kenya, the USA and Israel we are preparing an application to the UN Human Rights Commission in cooperation with lawyers from Turkey and abroad.

The Ocalan case is one with international dimensions. His trial will also be an international one. These proceedings have started. Each of the states, with all its rights and wrongs, will be seated in the place it deserves in history.

Translated from the Turkish original.

----- Restrictions Imposed on Legal Defense Abdullah Ocalan's Defense Team 5 May 1999.

Dear Members of the Press

For more than two months we have been involved in the defense of Abdullah Ocalan. This case has justly been called the "trial of the century", and is notable not only for the measures taken against Mr. Ocalan but also for those measures which have confronted lawyers involved in the defense.

From the very first day that we took on the task of defending Abdullah Ocalan, we have faced problems regarding the grave measures which affect the physical and mental health of our client and the de facto and legal obstructions designed to prevent us carrying out our legal duties. We have made formal complaints to the Turkish President and Prime Minister and to the State Security Court and State Prosecutor, but have yet to receive a reply from any of these offices.

As Abdullah Ocalan's lawyers, we experience problems arising from violations of the right of defense on an almost daily basis. Until today we have been waiting for a response to our complaints.

However, the events which occurred on 30 April when the eighteen lawyers were attacked by police inside and outside the court in Ankara and again after the hearing on being taken by bus to the Yenisehir district, have pushed us to the point of taking a fundamental decision.

We would now like to detail our demands regarding the conducting of the trial; demands which have been constantly ignored by state officials.

Violations of the pre-trial investigation process

The confidentiality of the pre-trial investigation is a fundamental rule that has been comprehensively violated in the case. This process began on the plane bringing Ocalan to Turkey. The interrogation which took place on the aircraft was broadcast the next day in Turkish TV channels. This illegal practice was then openly continued by state security court prosecutors leaking all information regarding the investigation to the press on a daily basis. A few days ago chief state security court prosecutor Volkan Vural accused his fellow prosecutors of leaking the indictment to the press, and in so doing of violating the press law of behaving "unethically". Volkan Vural, who violated the same "ethical rules" by announcing the indictment at a press conference, has brought the prosecution under suspicion, although the fact that no subsequent action has been taken is thought provoking.

Unfortunately almost the entire media has participated in this illegality. We ask once more: Who leaked the documents concerning the investigation to the press and how and why did they do this?

The legal system envisages suspects against whom arrest warrants have been issued being brought a judge as soon as they are arrested, and then remanded in custody. However, despite the existence of an arrest warrant issued in his absence Ocalan was detained for 7 days by the gendarmerie and interrogated.

Violations of the Presumption of Innocence

Another fundamental principle of law is that a suspect is innocent until a verdict against them becomes definite. From the beginning, state officials, the media and Turkish public opinion, as a result of the direction it has been given, have violated this principle by defaming Abdullah Ocalan, calling him "baby killer", "monster", "separatist leader" and other such names. State officials, the media and public opinion have also handed down the death sentence to Ocalan and declared that this sentence will be carried out. A different decision cannot now be expected from the court. A judge that took such a verdict would be labeled "Apo's lackey" and his life would be in danger.

Abdullah Ocalan has not been placed in a legal remand prison

Abdullah Ocalan spent 7 days in detention on Imrali island and was then formally arrested on the same island. When we first saw Ocalan on 25 February 1999 he was still in the same building where he had been detained and was in the hands of military personnel from the Special Warfare Department who had interrogated him. Two men wearing ski masks were present and, when I demanded that they leave, they confirmed that they were military personnel by saying that they could not go unless they received an order from the Regimental Commander. A judge from Mudanya was also present and kept a record of this incident. This demonstrated the fact that Abdullah Ocalan was being held in an interrogation center belonging to the General Staff after being formally arrested. The only change that has been made following our complaint is that these men have taken off their ski masks and uniforms and donned prison officers' uniforms. Abdullah Ocalan is still being interrogated by secret service operatives, called the "Commission of Investigation" on an almost daily basis.

It is an offense for Abdullah Ocalan not to have been placed in a remand prison in spite of being formally arrested and this invalidates the case against him.

Violations of other Rights of Defense

The laws envisage meetings between a lawyer and his client taking place at a site where no one can over hear what passes between them. However, at every meeting we have had with Abdullah Ocalan there have been one or two men present to listen to what is being said. We are also not permitted to take anything with us to the meeting place, not even a pen and blank paper. We have to use pen and paper provided by the authorities. In such a case involving dozens of files we have no chance of carrying out a productive meeting with our client.

Our brief cases and private documents are searched. We are subjected to a body search which on occasions includes removing our shoes and socks. We are treated like detainees, having our fingerprints taken and are forced to sign documents that infringe our dignity because the island is a so- called military zone. The complete isolation of our client from the outside world is effecting his mental health in addition of being a violation of the right of defense. Despite all our applications not one document regarding the case, or a newspaper, radio or television has been made available to Abdullah Ocalan. (except a few books reflecting official ideology which have recently been given to him).

Restrictions imposed on the frequency of visits and the time of meetings, and also occasional cancellations, also contravene the law.

The gravest violation of the right of defense is the lack of security of the life of the lawyers who have undertaken to defend Abdullah Ocalan. From the beginning there have been demonstrations against us on our way to and back from Imrali.

In Ankara the police beat us up in the street. This attack was recorded on film, but lack of any action against the perpetrators will only encourage the assailants, and present a bad image of Turkey.

We wish to draw attention to the fact that at no time in the history of the Turkish Republic, not during the Independence Tribunals, nor the periods immediately after the military coups of 1960, 1971 and 1980, have defense lawyers been subjected to such attacks.

Despite the decision of European Court of Human Rights warning Turkey, which says it respects the rule of law, it is not possible for us to carry out our defense duties. We informed the Istanbul Bar of this situation on 3 May 1999.

There is no place for revenge and anger in law. Internal conflict has existed in Turkey for 15 years and the pain and losses of the parties are considerable. Government officials must avoid making provocative statements and this also applies to the media. As we stated at the outset we wish this trial to serve to reconstruct peace and brotherhood, not vengeance and war between the two communities. There is no other way to realize a more democratic, prosperous Turkey.

Our client Abdullah Ocalan has stated he will make a contribution to peace and fraternity. We wish to act as defense lawyers for peace and brotherhood as well as Abdullah Ocalan. We expect the same sensitivity from the prosecution.

As we mentioned above, the media has a responsibility to contribute to this process. As it can be clearly understood from the file we have presented to the esteemed members of the press here today, in a normal situation we would have to give up this case after the attacks which has taken place. However, to take such a decision at this stage would adversely affect efforts to secure peace and fraternal relations. We therefore announce that, given the date of the hearing, if our conditions are not met in a reasonable time we will have no alternative but to withdraw from the case or suspend our involvement in it.

These are our conditions:

1- Our client must be removed from his state of isolation and placed in a remand prison. Permission must not be given to anyone other than the court to carry out investigations. Measures which have an adverse effect on his health must be ended and we must be informed of all measures taken so far regarding his health. The proposals of the Committee for the Prevention of Torture should be followed and our client allowed copies of the file, books, newspapers, radio and television to enable him to prepare his defense.

2- Restrictions introduced to meetings with lawyers should be withdrawn, meetings should be taken place in conditions according to law and no one should be allowed to listen to what is said.

3- Searches and confiscation of lawyers' documents etc. and all offensive treatment should be ended.

4- Precautions should be taken to prevent hearings being turned into lynch mob demonstrations.

5- A fair trial and right of defense should be ensured, as called for by the decision of the ECHR on 4 March 1999.

6- Legal action should be taken against these who have attacked defense lawyers, and the government and media should stop issuing provocative statements.

7- Replies should be given to all written applications made by the defense.