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|The KCK Trial in Diyarbakir (Turkey)|
For the second time we travelled with two colleagues from the Schoolplein Advocaten, Utrecht, to Diyarbakir in Turkey in order to attend, as international observers, the 21st hearing of the mass trial against 152 defendants: the so-called KCK trial in Diyarbakir. This time, with the delegation was the Dutch journalist Vijdan Yildirim, who accompanied us a translator.
When we arrive, on the evening before the hearing, our contact person, the lawyer Gul Altay, awaits us together with her local colleague from Diyarbakir. We are briefed about the progress of the trial since January, and informed about the current political situation. As regards the latter, there is little hopeful news. Very recently it was announced that members of the legal Kurdish political party are not allowed to stand as a candidate in Turkey's parliamentary elections of June 14th. The ‘independent’ electoral commission banned seven Kurdish candidates - some of whom are currently members of the Turkish parliament for the pro-Kurdish BDP Party - from running for the upcoming national election set in June. To us this is all very unusual, yet in ‘modern’ Turkey it is apparently common practice.
Tuesday, 19 April 2011
The next morning we walk from our hotel to the Court, The Diyarbakir 6th High Criminal Court (6. Agir Ceza Mahkemesi). The hovering army helicopters, the presence of armored vehicles and especially the atmosphere in the streets, remind us of January. Then they broke up the protest with tear gas and water cannons. There's a massive Kurdish demonstration. The closer we get to the court, the more protesters appear. Our contact person awaits us at the court and leads us past the first checkpoint. Before we enter the garden of the court premises, we are searched. Purses are turned inside out. Again, it is remarkable how careful security is with its inspection of the non-lawyers. Our names are written down and we are allowed to pass. The second checkpoint, at the entrance of the court building, resembles the ones in the Netherlands. You pass through a small gate, without belts and metal items which you hand to the security people. Since the building is being rebuilt, the court looks like a construction site. The ceiling is still open and the unfinished sanitation makes it look like the construction has only recently started. We are taken to a small room, only for lawyers, where we get a cup of coffee from the caretaker. On either side, lawyers sit on chairs, some of them already wearing their black robe with red collar. Unlike in the Netherlands, the robes are not buttoned up, but worn open. Several defense lawyers recognize us and come to welcome us. Cihan, lawyer in Diyarbakir and also the coordinator of this trial gives us an update of the most recent developments. It seems that every single briefing starts with bad news. A couple of minutes ago the lawyers were told that not all defendants will appear for trial today. 104 out of the 152 defendants are in pre-trial detention, some of them for almost 2 years. Cihan says: “They only bring in 6 detainees to appear for trial today. We've been told just now.” He excuses himself and leaves in a hurry, while consulting some other lawyers. Lawyer Gul asks a colleague whether there is a robe left for her to wear.
Around 10.00 am we are asked to follow and take our positions at the observer stand. Once again there is an extensive check, the third, where even our writing equipment is taken apart, as if they might be real pen guns developed by Q.
80 lawyers present
In the court room, there's around 11 ‘jandarma’ positioned around the six suspects. The gendarmes stay in their positions for the entire hearing. In the back of the room, in front of the observer stand, there are nine policemen and even the members of the ‘secret’ service can be distinguished. After some counting, it appears that there are around 80 lawyers present, divided over the chairs at the left and right side of the defendants. The ones who will take the most time to speak, the majority, is on the left side of the judge.
A gentleman signals us. He heard we are from the Netherlands and wants to introduce us to a representative of the Dutch embassy. She also attends the trial today as an observer. She was present at the start of the trial in October 2010 as well. Today she attends once again, because in the Dutch parliament questions were asked about the trial. We decide to sit together, as ‘Dutch delegation’.
The case is reopened. It is the 21st hearing of the trial. The names of the present suspects are read. Next, the lawyers present themselves, one by one. Some of them explicitly state that they defend the present detainees, while others state that they defend all detainees who have been charged.
Without consulting the defense, the Court came up with the decision to split up the 152 defendant into groups and assign different hearings dates for each group of defendants. The decision was taken unilaterally,- without consulting the defense and without any explanation or clarification as to what criteria this is based on. Today 6 defendants in pre-trial detention, and one suspect who is not in detention but has appeared voluntarily, are ‘summoned’. The coordinator of the defense informs us that the selection criterion is probably the fact that these are supposed to be ‘strong’ cases of the Prosecution.
The president of the Court starts the hearing with a motivated rejection of the recusal (‘disqualification of judges’), submitted in January, and declares that the Court does not have any influence on the situation in which suspects have to wait during the hearings.
Defense in Kurdish denied
The case of the suspect appearing voluntarily, Songul Erol Abdil, the former mayor of the city Tunceli, is dealt with first. The President of the Court is obliged to read out the incriminating evidence that has been collected by the Prosecution: found documents, wiretaps of telephone conversations, recordings from eavesdropping in public buildings. Material that proves the involvement of the suspect in the terrorist organization, according to the Judge. The suspect is told of her rights. Then she speaks in Kurdish, announcing briefly that she wrote her defense on paper. This document is brought to the President, who says that the document will not be added to the file, since it is written in Kurdish. Her lawyer fiercely advocates that the Kurdish document should in fact be added to the file but the President still rejects as it has not been written in the Turkish language.
Several lawyers now have their say and sharply criticize this dismissal. The defense wants to know the legal basis to reject the document. More than half of the recorded wiretaps of telephone conversations actually are in Kurdish. How come those constitute as legitimate parts of the incriminating evidence? Other arguments put forward by the lawyers, are noted by the Court: the (im)partiality of the Court is criticized. Moreover, it is a violation of fundamental legal principles to deny suspects the right to address the Court in their own language; the equality of arms is at risk. One of the lawyers remarks that, as a former employee at the Turkish consulate in Germany, he cannot conclude otherwise than that the entire trial is inadmissible. The Judge sometimes interrupts the lawyers, asking the lawyer to state his or her name for the record.
Defense lawyers gagged
The entire trial is shown on large video screens and thus also recorded. Despite all arguments and protests, the President sticks to his dismissal and calls upon a defendant, still in pre-trial detention, to listen carefully to the incriminating materials in his case, and then gives him the floor. The suspect reads a statement in Turkish, addressing the fact that candidates for the Kurdish political party are not allowed to stand as a candidate for the upcoming elections. The statement is then signed by the present suspects. The President adds it to the file.
The next suspect starts his defense in Kurdish, following which the President, like in January, turns off the microphone.
One of the defense lawyers takes the floor and elaborates in a well-established line of argument on the fundamental inequality in the treatment of the Kurds and Turks. He emphasizes that also in this trial, the inequality comes to the fore, time and again. This political trial has nothing to do with ‘the course of justice’. He finalizes with a political statement, declaring that sooner or later, the Kurds will free themselves from the Turkish yoke. The trial denies the Kurdish reality, a fact noted by the Registrar before, and thus included in the file.
There is some commotion in court when the door is opened and an important Kurdish member of parliament enters the room, and takes a seat as an observer. She sits close to the president of the BDP, Selahattin Demirtas.
In their increasingly sharp pleadings, the lawyers call the members of the Court to account, because of their doggedness on denying suspects the right to speak in their own language. In addition, the decision to split up the case is heavily criticized. Some lawyers, among whom the well-known human rights activist and lawyer Eren Keskin, emphasize in their pleadings that it is unacceptable that the lawyers and family members are not informed about when their case is dealt with, making the right to a defense (fair trial?) a farce.
One of the lawyers, also chairman of a human rights organization, unequivocally declares that the officially abolished secret courts apparently still exist within the system today. He claims that the Court knows very well that they don’t have a solid case, and that this trial is meant to obscure the human rights violations of the Turkish government. That the Court proves ever more that it has its own ‘political’ agenda, and that this is why the pre-trial detention, after almost 2 years, still continues.
The morning session is finalized with an ultimatum by the - meanwhile - 150 lawyers present. In the ultimatum, the lawyers have formulated three demands, to be answered during the afternoon session:
1. All suspects are to stand trial simultaneously.
2. All documents and statements in Kurdish are to be included in the file.
3. The case is to be referred to a court that can review the competence of this Court to deal with the case.
The judge adjourns the hearing till after noon.
We head towards a restaurant for lunch. Although the restaurant is not far from the Court, we have to cross the road that passes court and town hall. The unrest further down the road towards our hotel, has now turned into popular anger and the sound of sirens and explosions of tear gas grenades are mixed with the yelling and singing of protesters. We decide not to get any closer to watch, with memories from January still in mind. We are accompanied by some of the lawyers during our lunch. We are told that the Court will have to accept their demands. Otherwise the defense will withdraw. Afterwards we seize the opportunity to visit one of the board members of the bar of Diyarbakir, in order to ask some questions about the behavior of the President of the Court during the morning session. Especially the fact that direct insults addressed to the President did not seem to bother him, surprised us. The coordinator affirmed our observation that the President accepts and allows a lot. He reckons that this is due to the enormous media attention and the presence of international observers. He asserts, however, that the President has been consistent in his decision-making so far. This afternoon, after a few days of standing on the sidelines, the Prosecution will have to give a response to the demands of the defense. In Turkey, the Prosecution certainly is not active regarding the provision of exculpatory evidence, which explains why the two prosecutors, apart from the first hearing, have not taken the floor many times thus far.
During the conversation we regularly walk to the windows, where we see how dozens of heavy armed riot police run through the alleys towards the place of the protest. The explosions of the tear gas grenades and the increasing noise of the hovering helicopter can be heard loud and clear over the yelling and singing protesters.
The afternoon session
We quickly return to the entrance of the Court, and three security checks later we sit on our positions at the observer stand once again. The lawyers are restless and the other observers are waiting the response of the Prosecution to the earlier demands. One of the lawyers takes the floor and requests a response from the Prosecution. The President’s attitude gives away that the Court is inclined not to decide on the matters and the Prosecution shows no intention to respond.
The lawyer continues and briefly states that, as there has not been any decision, it is impossible for him and his colleagues to represent and defend their clients in a fair manner. He declares that he withdraws from the case. All lawyers immediately start collecting their files and walk towards the exit. For a brief moment, we believe there is a glance of surprise and incomprehension on the face of the President but it soon disappears as he takes off his robe and suspends the session untill further notice. Soon afterward, we are politely, yet urgently, requested by the police to leave the court room. A remarkable ending of the 21st hearing of the 6th High Criminal Court in Diyarbakir. Turkish law says that suspects have to be represented by a lawyer, the more so because the minimum penalty in this kind of cases is 5 years imprisonment. According to the coordinator of the defense lawyers, the Court will now have to request the district’s dean to appoint other lawyers. It seems very unlikely that other lawyers from this district will be prepared to take over the defense, meaning that the new lawyers must come from other districts. It is doubtful that many lawyers will want to take over this case in Diyarbakir, It could even lead to a schism among Turkish lawyers.
Riots outside the Court
We can see that there are still riots on the streets. There are Kurdish protesters everywhere, women and men, old and young, while the riot police is prepared, behind the armored vehicles. We look at red colored water on the ground, apparently meant for ‘marking’ the protesters. The protesters are sprayed with red water, so that they can be recognized later.
When we reach our hotel, one of us asks whether it is possible to get a drink at the balcony of our rooms. They tell us it is not a problem at the back of the hotel. At the front, however, they do not serve because of the risk of being hit by a wandering rubber bullet. At the back of the hotel, from our balcony, we can hear how the skirmishes continue. Especially the sound of that hovering helicopter, low above the city, continues to indimidate us. In the evening, when we are watching the local news, it becomes increasingly clear how surreal everything really is - especially so because of the many police interventions and the dozens of people who have been arrested again. The fierce protests by the people on the streets are not only because of the trial but also and especially because of the veto decision by the electoral commission against the seven candidates for the upcoming parliamentary elections.
Boy killed by police bullet
The next morning, we are told that there will be no more hearings. In the evening, it is announced that in Bismil, not far from Diyarbakir, a Kurdish boy has been killed by a police bullet. The protest continues until the next day. On Thursday morning, when we drive towards the airport of Diyarbakir, the cab driver tells us that, as a protest, all shopkeepers have closed their shop for the day. “It is a protest against the death of the young boy from Bismil”, the taxi driver says. We leave Diyarbakir as the city throbs with dramatic vibrations from the protests. We return to Amsterdam with Turkish Airlines. Later, in The Netherlands, we hear that the lawyers did not attend the session of Tuesday April 26th either. As a protest, they sat down in front of the entrance of the Court. Apparently the defendants in detention have agreed to the course of action, like the coordinator told us.
The main question remains: how is the Court going to organize the right of suspects to representation by a lawyer, especially considering the fact that the bar in Diyarbakir does not wish to ignore the lawyers’ protest?