13 January 2011. Today, Diyarbakir, a city with 1,2 million citizens in south-east Turkey, will be witnessing a mass trial. In this trial, 151 persons are accused of links to the Kurdistan Communities Union, or KCK. The prosecutors claim that the KCK is the urban wing of the banned Kurdistan Workers’ Party PKK, and accuse the suspects of membership of an outlawed (because ‘terrorist’) organization, spreading terrorist propaganda, and undermining the state’s unity. Eleven Kurdish politicians could face life imprisonment, while the indictment calls for jail terms ranging from 15 to 36,5 years in prison with regard to the other 140 persons who stand accused. The trial is very controversial for several reasons. The evidence is obtained through statements of anonymous witnesses, and by using intercept evidence, such as wiretapping telephone conversations and eavesdropping in public buildings. Moreover, the trial does appear to be politically motivated. The accused are people who have been democratically elected to represent the DTP (Demokratik Toplun Partisi – Democratic People’s Party) and who were actively involved in promoting the Kurdish cultural and political rights. Among the accused are members of parliament, mayors and members of city council. Itgives the impression that the trial is an attempt to suppress the legally organized political movement of the Kurdish people in Turkey through the judicial system. Occasion for the ‘international community’ to closely observe the proceedings.
As a delegation from The Netherlands, three lawyers from the law firm Schoolplein Advocaten in Utrecht, a legal advisor and a law student, we arrive this morning at the court to attend the trial as international observers. In total, there are 28 international observers, including lawyers from different countries, a delegation from left-wing political parties of the European Parliament, a representative of PEN International, several human rights organizations and a representative of the British catholic church.
Outside the court it’s still quiet. Inside the court, security checks are hectic. Cameras are not allowed. Fortunately we are accompanied by a lawyer from the west of Turkey, who is attending the trial in solidarity with the accused, and who is, like one of the members of our own delegation, a member of the International Association of People’s Lawyers (IAPL). She helps us survive ‘chaos’. Although the trial should have started at 10.00 a.m., at 11.15 a.m. we are still standing in a crowded hall, looking around us. On the walls there are portraits of Atatürk. It’s basically all the decoration in the hall, but it can be doubted whether the people present actually appreciate it. Feeling lucky that his camera miraculously slipped through security, one of the delegation members tries to capture the atmosphere in the hall. Less than five seconds have passed when he gets a tap on the shoulder, an evil look and a ‘kind’ request to hand in his camera. Are we being watched by the Secret Service? With all these police officers in civil clothes in and around the courthouse you automatically get suspicious. Who is what? At 11.15 a.m. we may enter the courtroom. After a final check, and having handed over our telephones, we walk through a small corridor before entering the astounding courtroom. The courtroom has been built especially for this occasion, and it looks impressive. From our seats in the back we have a perfect view of the whole courtroom. On the other side of the room are the prosecutors and the judges. Behind the judges one can read the words “adaletmülküntemelidir”: (a slogan that is difficult to translate since the word ‘mülkün’ means ‘property’ or ‘possession’ as the foundation of the law. Left-wing politicians thus criticize this slogan) “justice is the foundation of the state”. Beautiful words, hopefully to be practiced in the upcoming trial. At the left and right side of the courtroom the lawyers have their seats, 200 to 225 in total. And in the centre of the room are the suspects, surrounded by a large number of ‘Jandarma’, the military. Intimidating. There is a large screen in the back of the courtroom, and with a Turkish speaking delegation member in our midst we can adequately follow the proceedings. The trial is about to begin.
Although we are all familiar with the phenomenon of trials, it is an understatement to say that the opening is not very inspiring. After reciting the names of all 151 suspects and introducing all the lawyers present, the mainstream TV watcher would most likely have zapped away from this ‘courtroom drama’, yet even a historical trial like this has to abide by procedures. After the judge read out a short version of the indictment, one of the lawyers requested an investigation into theconditions under which the suspects had to wait before the actual start of the trial, in a cold, unheated room under the court building. No such investigation was accepted, but it was decided that the accused would be allowed to stay in the courtroom when the trial was adjourned. Then, at last, the time has come for the suspects to give a statement. When the first suspect speaks, however, commotion breaks out. Just like in the earlier trial days in October 2010, the suspect answers in Kurdish. In October the trial was suspended because the defendants made a request to give their statement in Kurdish. When one of the defendants answered in Kurdish, the judge said that he spoke “an unknown language”. Today is no different. The judge interrupts the defendant: “It is understood that the defendant made his defence in a language that I don’t know but consider to be Kurdish”. A small promotion, so to speak, since this time the language is identified as such. The judge continues: “There have been requests insisting on a defence in Kurdish. We have made a decision. If there are persons who wish to make their statement in Kurdish, it will be noted in the minutes. But I do not speak Kurdish. If defendants give their statement in a different language than Turkish I will give the microphone to another defendant.” At least we know what to expect. In the course of the morning, 31 defendants were asked to give a statement, all answered in Kurdish and were interrupted. Each time the microphone was switched off after a few Kurdish words. In between, the lawyers take the floor. They understand what has been said in Kurdish and they request that the fact that the microphone was switched off when their clients were about to make their statement in Kurdish is filed in the minutes. One of the lawyers explains that millions of people speak Kurdish (in Turkey the estimated Kurdish population is between 13 and 15 million Kurds), and concludes that not allowing this language in court is not a legal, but a political decision. So far, the lawyers’ speeches are mainly of a political character. There is little attention for legal arguments. At 2.30 p.m. the judge adjourns the trial. Time for a lunch break.
When we return for the continuation of the trial, little reminds of the calm outside the courthouse this morning. Reportedly 50 thousand Kurdish protesters demonstrate against the mass trial and for their culture and identity. The courthouse is separated from the mass by a group of heavy armed riot police, while helicopters hover overhead. It is a threatening atmosphere, and no one is surprised when moments later the situation escalates. An explosion of green and red flares announces a tear-gas attack by the riot police, and we are lucky to find shelter in the courthouse before the cloud of white, eye-burning smoke really reaches us. During the afternoon proceedings we can hear that the situation outside the courthouse remains turbulent until late afternoon.
Initially the trial continues where it left off. The defendants are asked to make a statement, speak Kurdish, are interrupted, and the microphone is switched off. After all defendants have given their ‘statements’, some of the lawyers take time to elaborate further on their defence. One urgent question addressed to court concerns the rumours that the Turkish authorities have organized an internal conference before the start of the trial where the content of the indictment was allegedly discussed. In addition, foreign embassies were reportedly informed about the upcoming trial through a CD containing information from the indictment.
Once more, the speeches of the lawyers are highly political. One of the lawyers even compares the Kurdish issue in Turkey with the Indians/Native Americans in the US, and with the Jews in Nazi-Germany. Loaded words. Other lawyers try to convince the judges with a more legal argumentation. One lawyer mentions the fact that some of the defendants have been in pre-trial detention for almost 2 years, without any ‘reasonable suspicion of having committed an offence’. Moreover, ‘everyone arrested or detained shall be entitled to trial within a reasonable time or to release pending trial’. These considerations suggest a violation of Article 5 of the European Convention on Human Rights (ECHR). Moreover, the lawyer has considerable doubts about the grounds for the pre-trial detention, which usually include the likelihood of the suspect to flee justice, destroy evidence or intimidate witnesses. The lawyer argues that there is no convincing evidence that justifies keeping the accused in custody. Next, he contends that Article 100 of the Turkish Code of Criminal Procedure is inconsistent with Article 5 ECHR, and should thus be set aside. Other rights of the defendants he considers to be violated: the right to an interpreter, the right to examine or have examined witnesses against him, the right to be informed promptly of the nature and cause of the accusations against him (according to the lawyer the official reports of the proceedings in October 2010 have still not been provided to the defendants’ lawyers), all violations of Article 6 ECHR. In his speech the lawyer discussed many arguments against the prosecutors’ case, some stronger and more convincing than other. The lawyers that subsequently take the floor largely adopt similar lines of reasoning. One argument that receives little attention is the manner of gathering evidence. Apparently this issue has been discussed elaborately during the earlier days of the trial. The prosecutors are accused of construing evidence after the arrest of the suspects, instead of the other way around. At 6.00 p.m. the judge decides it has been enough for the day. Tomorrow, the trial will continue, and there will be a decision regarding the continuation of the pre-trial detention. Late afternoon the delegation from The Netherlands meets with a representative of the defence. A pleading letter on the use of anonymous witnesses, and eavesdropping on telephones and in public buildings in relation to Article 8 ECHR, written by our delegation at the request of the defence, will be submitted by the defence to be used in trial.
14 January 2011. Outside the courthouse the calm has returned. It is hard to believe that yesterday here was a clash between police and protesters. The police is still present in large numbers around the courthouse. There are scattered groups of people, who are awaiting the decision of the court regarding the request of the defence to terminate the pre-trial detention. Also inside the courthouse it is not as hectic as yesterday. At the start of the proceedings there are around 50 lawyers present, and more lawyers join in the course of the day. The proceedings start at 10.00 a.m. sharp. The prosecutors maintain their demands regarding the continuation of pre-trial detention. Then the lawyers take the floor again. Just like yesterday we are listening to a mix of political and legal arguments. Yet, the speeches seem more coordinated. Clearly the defendants’ lawyers and the lawyers present in solidarity have gathered for consultation. In his speech, one of the lawyers emphasizes the procedural aspects of a fair trial. He givesa thorough historical overview, starting with the Magna Charta, then citing the Kurdish PKK leader Öcalan, and explaining that in his view Atatürk’s political philosophy did leave room for Kurdish autonomy. He calls on the current president, in a reaction to the president’s words in the media on the eve of the trial, to stop treating the Kurds as insurgents. “This is not an insurgency, this is the beginning of democratization”. The lawyer elaborates on the principles of the rule of law, such as the principles of equality and non-discrimination, the presumption of innocence, and several procedural assumptions, and advocates how these central principlesof democracy are dishonoured in this trial. The evidence is unlawful, the minimum requirements of a fair trial mandate that the defence must know the content of the minutes (“I presume you know these articles”), and he pleads that pre-trial detention cannot be justified on the basis of the cited laws, because it requires the purpose of an ‘armed conflict’, while the purpose is ‘democratization’. A reference in the press by the Turkish prime minister to an arrest of the European Court of Human Rights regarding the use of the French language in Polynesia is, the lawyer contends, legally, ethnically and technically an incorrect comparison. Another lawyer declares with a straight face that there are numerous falsified documents in the case file. He claims to have 360 maps with counterevidence. Yet another lawyer focuses on the prohibition of the Kurdish political party DTP. He argues that the DTP was a constitutional and legal party until 2009, and as such deserves protection within a democratic state governed by the rule of law. The lawyer asserts that the charges against the suspects all concern activities that took place before the prohibition of the DTP. As a result, the lawyer argues, the court lacks competence in this matter. Finally, the defencestresses that the fact that the accused were not allowed to make a statement in Kurdish regarding the ‘facts’ he or she has been charged with, gives rise to a flagrant violation of the fair trial principle (Article 6 ECHR). The trial continues, different lawyers take the floor, but it seems that everything has been said. At the end of the day it is decided that the suspects remain in pre-trial detention. The trial has only just begun. *(The lawyers have informed us that it has been decided that the trial will continue in April 2011. Then, the trial will continue with the merits of the case. A request for the disqualification of judges has been directed to another court. Depending on the decision on that request, we decide whether we will attend the proceedings in April 2011 as international observers.)
It is critical that this trial is, and will continue to be, attended by international observers. The trial is expected to take days, weeks, even months. In Turkey, nobody doubts that there will ultimately be a conviction. The fact that Turkey can run such a political trial, while the world is watching, is unacceptable. This trial has to be brought to the attention of people, and the world must know: the Kurdish people are denied fundamental human rights.
Counsel mr. J.M. Langenberg
Counsel mr.  R. Vleugel
Counsel mr.   D. Gurses
Legal advisor mr.   H.H.G.M. Prince
Student International Law V. Vleugel