KCK lawyers trial: Report by Melanie Gingell

The following is the latest in a series of personal reports written by members of a recent UK delegation to Istanbul. The delegation observed the continuation of the lawyers KCK trial, and included solicitor Ali Has, human rights lawyer Margaret Owen OBE, the Law Society’s Tony Fisher, and Bronwen Jones and Melanie Gingell, of Tooks Chambers, London. Here, Melanie Gingell gives her impressions of the trial and her concerns about how the trial is proceeding.

Tony Fisher, member of the Human Rights Committee of the Law Society, also participated in the delegation and wrote this report last week.

We will bring you further reports in the coming weeks.

KCK TRIALS ISTANBUL 6TH NOVEMBER 2012

In response to an invitation from a Kurdish solidarity campaign PIK, I attended the trial of 47 lawyers in Istanbul on 6th Nov 2012.

I was part of a 5 person delegation comprising 3 barristers and 2 solicitors from the UK. Legal delegations from France, Switzerland, Germany, Canada also attended the trial.

BACKGROUND

On the 5th November 2012 we attended a briefing meeting conducted by Istanbul Lawyers. They provided the following background to the case.

In November 2011, 47 Turkish and Kurdish lawyers were arrested and charged under anti-terrorist legislation with membership of a proscribed organization and of other related charges involving the communication of orders from jailed leaders. Thirty- eight of them have been held in custody awaiting trial. Nine have been granted bail with strict reporting conditions. They all deny the charges.

The common factor linking these lawyers is that each of them had at some time had dealings with cases involving Kurdish issues. Some of them had represented Ocalan the jailed leader of the PKK. Some of them had conducted cases before the ECHR. Others had been involved in asylum-based cases. There was a coordinated wave of arrests of these lawyers.

The prosecution evidence consists of the covert recordings of conferences between the lawyers and their clients. The lawyers’ houses and offices were subsequently searched and computers confiscated.

The prosecution of lawyers in Turkey requires the permission of the Ministry of Justice, which has not been obtained in this case.

This trial is linked to a series of trials being held in relation to other groups including academics, politicians, journalists and other human rights defenders who are involved in political activity with the legal Peace and Democracy Party which campaigns on Kurdish issues. They are all accused of being members of the illegal Union of Communities in Kurdistan (the KCK) hence the trials being popularly referred to overall as The KCK trials.

THE TRIAL

The adjourned hearing on 6th November took place in a large court room attached to a prison in Silivri situated approximately an hours drive from Istanbul. There was a heavy military presence at the court with soldiers in full riot gear with batons and shields.

The international legal delegations were allowed access to the court without any problems.

The courtroom was big enough to hold the defendants, their representatives, the international observers and a large contingent of observing lawyers from Istanbul. Two Kurdish members of parliament were also observing the proceedings.

There was not sufficient room to accommodate the defendants’ relatives who were allowed into an anteroom with a video screen to view the proceedings.

As we waited for the trial to begin we heard a fight break out in the anteroom, which was quickly dealt with.

The judge and prosecutor entered court and both sat at the bench. The defending lawyers sat in the well of the court, which is the normal arrangement in Turkey. The defendants entered court at the front and greeted their colleagues who are now representing them.

There were submissions on behalf of the defendants about the difficult prison conditions, about the hunger strikes underway in the connected groups of trials and, at most length, requesting permission to make submissions in Kurdish. There were also calls for the end of the solitary confinement of Ocalan, the Kurdish political leader, to enable peace talks to resume.

It was then announced that the lawyer defendants were joining the hunger strike.

There was a request for the relatives to be allowed into the court.

Each defendant then stood and requested permission to speak in Kurdish.

After the lunch adjournment the judge rejected the submissions in relation to the Kurdish language. This resulted in the representing lawyers walking out of court in protest to be greeted by the cheering relatives.

The trial resumed in the absence of the representatives. The defendants were again called individually and replied in Kurdish. The microphone was turned off in each case. During a short adjournment the relatives were allowed into the court. They talked to the defendants and children were handed over to them to hold.

The case was finally adjourned until 3rd January 2013 with very little progress having been made over the course of the day. No further bail applications had been acceded to although there was some relaxation of the reporting conditions of those already on bail.

CONCERNS

The conduct of the trial appears to be in breach of a number of the rights that are supposedly guaranteed by the European Convention on Human Rights. In particular I would identify the following as potentially amounting to violations:

Detention: The article 5(3) right to “trial within a reasonable time or to release pending trial” can hardly be met by the current situation of delay and uncertainty as these accused lawyers remain in custody.

Delay: Whilst neither the Convention itself or the jurisprudence of the European Court defines any specific period as amounting to a breach of the article 6(1) right to “trial within a reasonable time”, it seems to me that the arrest and detention in November 2011 and the lack of progress since must be outside any sensible understanding of a “reasonable time”.

Right to privacy and family life: The investigation process in this case involved a series of searches and phone-taps into the homes and the private and professional communications of these lawyers. It is hard to see the justification for those intrusions.

In addition, there is the obvious and general concern to ensure that these defendants and their relatives are treated humanely whilst the hunger strike continues.

CONCLUSION

The backdrop to this trial appears highly politicized with the arrests taking place after the peace talks between the PKK and the Turkish government are said to have collapsed in Oslo. The defense also appears very political with the submissions concentrating on issues of Kurdish identity and community rights. The hunger strike has spread with many hundreds of Kurdish defendants now taking part.

There is a feeling that political uncertainty is increasing in Turkey in relation to the Kurdish question. There has been a retreat from the move towards European integration and the human rights strategy that has been connected with that. The impact of the conflict in Syria is also being felt.  These factors make it particularly important to maintain an international presence at the trials to try to ensure that fundamental freedoms are not a casualty of this uncertainty.

by Melanie Gingell, Tooks Chambers

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