Following is Lawyers Committee's letter to Prime Minister Bulent Ecevit outlining concerns on treatment of Abdullah Ocalan's lawyers: May 26, 1999

Dear Prime Minister Ecevit,

The Lawyers Committee for Human Rights remains seriously concerned about the treatment of lawyers representing detained Kurdish guerrilla leader, Abdullah Ocalan, and by official interference in Mr. Ocalan's right to mount an effective legal defense. We respectfully urge you to ensure that Mr. Ocalan's lawyers are permitted to carry out their legitimate, professional duties free from the type of harassment, intimidation and official obstruction that they have regrettably endured to date; and to ensure that Mr. Ocalan's right to a legal defense is fully respected.

As was noted in a public statement issued by the Union of Turkish Bar Associations on May 2, 1999, "the right to a legal defense is a fundamental right," and the infringement of this right for anyone "opens dangerous doors" for the whole of Turkish society. It is essential that you and other political leaders stand by this fundamental principle of the rule of law at a time when Turkish justice is under an international spotlight, and passions have been inflamed against a defendant who is seen by many in Turkey as responsible for a debilitating conflict in which more than 35,000 people have lost their lives in the last fourteen years.

Abdullah Ocalan faces serious criminal charges related to his activities as leader of an outlawed organization that has taken up arms against the state, and which has been responsible for the deaths of many civilians. If convicted, Mr. Ocalan faces a sentence of death. Under Turkish and international law criminal defendants are entitled to a number of minimum legal rights designed to ensure that they get a fair trial. Of special concern to the Lawyers Committee for Human Rights is Mr. Ocalan's right to legal counsel. This is the only guarantee that the defendant will be able to avail himself of the procedural protections guaranteed under international and domestic law. Article 6 (3) (b) of the European Convention on Human Rights provides everyone charged with a criminal offense with the right "to have adequate time and facilities for the preparation of his defense." Article 6 (3) (c) of the Convention provides those facing criminal charges with the right "to defend himself in person or through legal assistance of his own choosing..."

Mr. Ocalan's lawyers have repeatedly complained that their efforts to prepare a legal defense for their client are being impaired by official obstruction and interference. Principle 16 (a) of the U.N. Basic Principles on the Role of Lawyers states, "Governments shall ensure that lawyers are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference." While the European Court of Human Rights has permitted states to impose restrictions on the right of access to counsel for good cause, including in cases where terrorism is a factor, the types of restrictions faced by Mr. Ocalan's lawyers have exceeded the bounds of permitted restrictions.

For example, immediately after Mr. Ocalan's detention on February 14, 1999, he was held incommunicado, without access to his lawyers, for nine days. During that time, he was interrogated and made statements to his interrogators without the benefit of legal counsel which are now being used in evidence against him. A period of detention without access to a lawyer in excess of seven days exceeds the limit established in Turkish law for crimes falling under the jurisdiction of State Security Courts. The UN Basic Principles on the Role of Lawyers stipulate in Principle 7 that: "Governments shall further ensure that all persons arrested or detained, with or without criminal charge, shall have prompt access to a lawyer, and in any case not later than forty-eight hours from the time of arrest or detention." The European Court of Human Rights has ruled repeatedly that the right of access to counsel does apply to the preliminary investigation phase of the detention (Murray vs. UK, Imbriosca vs. Switzerland).

This complete denial of access to counsel in the first nine days of his detention, while Mr. Ocalan was undergoing interrogation, constitutes a serious violation of his right of access to legal counsel. This initial violation is being compounded by the denial of access for the lawyers to the written record of these interrogation sessions, even though alleged extracts from Mr. Ocalan's "confessions" have appeared in the Turkish press. We understand that these allegedly incriminating statements may form an important part of the prosecution case against Mr. Ocalan. It is generally accepted that confessions extracted in such circumstances are not reliable.

In addition to having only partial access to the written material included in the prosecution case file, lawyers complain that their visits, limited to one hour twice weekly, are insufficient to enable them to prepare properly for a trial of this magnitude and complexity. Moreover, contrary to the requirements of Article 144 of the Turkish Penal Procedure Code, Mr. Ocalan's meetings with his lawyers do not take place in a private setting, nor are lawyers allowed to take notes during the interviews, or to show documents to their client. Principle 8 of the U.N. Basic Principles on the Role of Lawyers states: "All arrested, detained or imprisoned persons shall be provided with adequate opportunities, time and facilities to be visited by and to communicate and consult with a lawyer, without delay, interception or censorship and in full confidentiality. Such consultations may be within sight, but not within the hearing of law enforcement officials." Lawyers complain that monitoring by the security forces of their meetings with Mr. Ocalan is extremely obtrusive, and that it interferes with their ability to carry out their professional duties.

The Turkish state may be entitled to some margin of appreciation in a case in which there are clearly pressing concerns of national security. Nevertheless, the draconian conditions imposed on the Ocalan defense team's access to their client go beyond what the European Convention on Human Rights would regard as legitimate security precautions in that they interfere with its ability to mount an effective defense. Principle 21 of the U.N. Basic Principles on the Role of Lawyers states: "It is the duty of the competent authorities to ensure lawyers access to appropriate information, files and documents in their possession or control in sufficient time to enable lawyers to provide effective legal assistance to their clients. Such access should be provided at the earliest appropriate time." Mr. Ocalan's lawyers have a right of access to the evidence compiled against their client by the prosecution, especially the transcript of statements he is alleged to have made while in detention. The frequency and duration of their visits should be increased, and they should be permitted to take notes during the interviews. The need for lawyers' access to their client and to case information will only increase once the trial is in session after May 31, 1999. Such official supervision as is deemed necessary for security purposes should be carried out unobtrusively, and without damaging the lawyers' ability to prepare a defense for their client.

Over and above the procedural obstacles confronting Mr. Ocalan's lawyers, the atmosphere of menace and intimidation in which they are required to carry out their duties has been permitted to reach unacceptable levels. At a preliminary court hearing in the case in Ankara on April 30, 1999 Mr. Ocalan's fifteen person defense team was forced to run a gauntlet of protesters who pelted them with stones and other projectiles, and were even able to beat some of the lawyers. The police did not adequately protect the lawyers from this assault. Indeed, police officers are reported to have joined in the beating themselves, and to have incited passers-by to assault the lawyers. This type of mob violence has no place in proceedings conducted in accordance with the rule of law. Principle 18 of the UN Basic Principles on the Role of Lawyers requires: "Lawyers shall not be identified with their clients or their clients' causes as a result of discharging their functions."

The Lawyers Committee respectfully calls on you to issue a clear public statement that Mr. Ocalan's lawyers are carrying out their professional duties and should be treated with respect by all parts of society. In particular, it should be made clear that assaults and intimidation against the lawyers by members of the security forces will not be tolerated. In addition, we urge that an investigation be carried out into the incidents at the hearing on April 30, 1999 and that any members of the security forces implicated in assaulting a member of the legal team should be subject to disciplinary action or prosecution. The Turkish government should do everything in its power to ensure that Mr. Ocalan's legal team are protected from future threats, intimidation and violent assaults.

Mr. Ocalan has the right to receive a fair trial from the Turkish legal system. This will only happen when he is accorded fully his right to a legal defense. We urge you and your government to take all necessary measures to ensure that Mr. Ocalan's lawyers are able to carry out their duties without further official obstruction, and free from threats, intimidation and physical attack.

Sincerely,

Michael Posner

Executive Director