International Initiative
Freedom for Ocalan Peace in Kurdistan
P.O. Box 100511, D-50445 Koeln
Telephone: +49 221 130 15 59
Fax: +49 221 139 30 71
E-Mail: info@freedom-for-ocalan.com
Url: www.freedom-for-ocalan.com
Cologne, June 2001
INTERNATIONAL INITIATIVE BRIEFINGS:
Interview with Ocalan's domestec lawyers
of Asrin Law Office (Istanbul)
The following text is based on an interview with Mr Ocalan's domestic
lawyers of Asrin Law Office (Istanbul) that appeared in the May
2001 issue of the Istanbul-based youth magazine Genc Bakis. The
text has been updated by staff of Asrin Law Office. Translated by
International Initiative.
Q: Could you please explain to us under what articles the European
Court of Human Rights has declared the case of Mr Ocalan admissible?
A: Following nearly two years of correspondence with the Applicant
and the respondent Government, nearly a thousand pages of written
submissions and an oral hearing in Strasbourg on 21 November 2000,
the European Court has declared the complaint lodged on behalf of
Mr Ocalan admissible under articles 2 (protection of the right to
life), 3 (prohibition of torture and degrading or inhuman treatment
or punishment), 5 (freedom and security of person, a provision entailing
conditions of detention), 6 (the right to a fair trial), 8 (protection
of private and family life), 13 (providing for access to effective
legal remedy), 14 (prohibition of discrimination), 17 (safeguard
against the abuse of rights) and 18 (regulating the extent to which
a state is allowed to interfere with the rights of an individual).
Since discussing all articles the possible violation of which will
be determined in the merits hearings one by one would amount to
a rather technical exercise, we feel that it might be more efficient
to give you a more general assessment. Let us start by saying that
a central characteristic of the Ocalan case is that in it law and
politics are deeply intertwined. We are thus heading for highly
controversial proceedings in the course of which law will have a
direct influence on politics or vice versa, politics will affect
the interpretation and implementation of legal norms. What is more,
these proceedings will have an impact on the EU-Turkish relations
just as much as they will on Turkish-Kurdish relations. Another
feature of the case is its pivotal weight in terms of the implementation
of those principles of international law enshrined in the European
Covention on Human Rights and generally accepted to be protected
by all EU member states, in terms of the question of the concrete
face value of ECHR jurisdiction. This case will be a kind of acid
test as to whether or not the EU is prepared to subject those values
it has declared to protect as fundamental, universal values to the
supervision of an independent jurisdiction without allowing the
political sphere to interfere. Mind you, this case makes it mandatory
to examine not only the violations of an individual's rights but
also the way in which these individual rights have been infringed
and the reasons why such violations have occured.
Q: The hearing originally listed for 31 May 2001 has been adjourned
to 31 August 2001. What will happen at this hearing?
A: The Court will sit on 31 August 2001 to initiate a determination
of the merits of all complaints declared admissible. We can qualify
this hearing as a detailed inquiry into the particular violations
alleged, the start of the substantive examination of the case. So
the Court will sit having regard to the written submissions made
by the Parties, to the file if you like rather than hearing further
oral submissions. Both Parties are entitled to submit further detailed
arguments containing allegations and responses, on the basis of
which the Court will sit.
Q: Is there an opportunity for political defense before the
European Court, or will the problem only be discussed under legal
aspects?
A: The Convention provides for the individual right to petition.
Accordingly, the Court will naturally endeavour to examine the case
from the point of view of violations of specific articles. Having
said that, this case being as extraordinary as it is, the practise
so far shows us that it is everything but impossible to deal with
it within the narrow framework of legal norms. It also possesses
the quality of encapsulating all complaints lodged against Turkey,
especially those concerning the Kurdish areas. This case is the
manifestation in the form of legal rights abuses of a number of
issues with eminently political causes. It would be contradictory
to the essence of the case to only regard it as a legal affair.
It is for this reason that Mr Ocalan shall expose the historic causes
of the emergence of the Kurdish issue by way of presenting it against
the background of three generations of rights. He will put forward
his proposals for a solution of the problem in this framework.
Q: Turkey has been found guilty in a number of European Human
Rights cases and convicted to heavy fines. From what we know, Turkey
is extremely unwilling to implement judgements and decisions of
the Court. The Ocalan case is of major importance for Turkey. In
how far to you expect the outcome of the Strasbourg proceedings
to be binding for Turkey?
A: The Convention obliges a signatory state to respect the right
to individual petition and to comply with the final decision of
the Court in any case the signatory state is Party to. The judgment
is passed on to the Committee of Ministers [of the Council of Europe]
which in turn is authorised to demand its implementation. This provision
is binding for Turkey as much as it is for any signatory state.
Q: Mr Ocalan has mentioned the term of "friendly settlement".
What does it mean?
A: Friendly settlement is provided for in the Covention as a road
to reach an agreement between the Parties on the basis of proposals
that can be brought by the Parties at any stage of the proceedings
after the admissibility decision. Mr Ocalan has for a long time
made shown efforts to arrive at a democratic and peaceful resolution
to the Kurdish conflict on the basis of an equal and free association.
As far as the ECHR proceedings are concerned, he has also indicated
that he would be prepared to contribute to such a solution or settlement
if the government shows the necessary positive efforts in order
to arrive at a solution. Mr Ocalan has emphasised that the conflict
was not one between an individual and a government, the former being
the Applicant and the latter the Respondent, but rather a political
and social problem with a history of two hundred years that has
crystallised in his person; and he would ask the Court to take up
the matter in a way that is conducive to a democratic resolution
of the conflict.
Q: How many lawyers will represent Mr Ocalan at the hearing
on 31 August?
A: Mr Ocalan will be represented by lawyers both from Turkey and
from Europe. But as we said, there won't be an oral hearing on 31
August but the Court after having deliberated with regard to the
material on file will give directions for an oral hearing. The actual
hearings will happen after 31 August.
Q: What will be the gist of your submissions?
A: Well, the main axis of our observations is the abduction of
Mr Ocalan from Kenya to Turkey in a manner flying in the face of
International Law of Extradition - and this process goes back to
the time before he came to Kenya - we will deal with his apprehension,
police custody, detention and trial, right up to the solitary confinement
he is kept in until the present day. We will try and analyse all
of this both in the light of Turkish domestic law and international
legal obligations Turkey is bound to by virtue of treaties she has
signed. We will separately subject article 125 of Turkish Penal
Code (providing for the death penalty for treason) to a closer scrutiny.
Since it closely affects our client in as much as it constitutes
the basis of the case, we shall also attempt to appraise the conditions
under which the PKK emerged, its initial aims and why it has resorted
to armed struggle, the meaning of the concept of defence of necessity
or legitimate self-defence in this case, aims of the PKK at later
stages, unilateral cease-fires etc. Finally, we shall try to assess
the politico-legal process begun after the detention of Mr Ocalan
on Imrali Island and possible outcomes or prospectives.
Q: What kind of defence does Mr Ocalan intend to deliver?
A: Mr Ocalan has started preparations for submissions to the European
Court in his own right. He has repeatedly expressed that he had
been prevented from delivering a sufficiently extensive defence
during his Imrali Island trial [before the Ankara State Security
Court] and that what he did was merely to issue a call for peace
since that was what he regarded as absolutely necessary under the
extraordinary conditions prevailing at that time. Mr Ocalan has
now drafted about 500 pages of what is likely to be a 1000-pages
manuscript. These submissions are going to contain both political
and legal arguments. To be more precise: The submissions are going
to contain his observations as to which powers played their part
in the international conspiracy that led to his abduction, the responsibilities
and obligations of these powers, why they adopted such policies;
underlined with comparable historical events, tragedies the Kurds
went through in their history and the repercussions they had, the
present situation and possible developments etc. He recently spoke
of his draft as "an analysis of civilisation". By way
of summary, Mr. Ocalan will shed light on the Kurdish question in
its historic and its actual, day to day dimensions and present realistic
proposals for a solution in his submissions to the Court.
Q: Is there a chance of Mr Ocalan's participating in the European
Court proceedings in person?
A: Even though it might be impossible for him to come to Strasbourg
in person - since that would be against the Court's practise - given
the fact that Mr Ocalan intends to relate certain information to
the Court in person, there is a good chance of a delegation of the
Court coming to Turkey, most probably Imrali Island, to hear Mr
Ocalan himself. Whether or not this will happen depends on a decision
the Court is to take.
Q: How long do you reckon the proceedings will take? What outcome
do you expect?
A: The proceedings may roughly take two more years from now. There
is a good chance of the proceedings to last for a rather long time
given that the case is highly multi-dimensional, comprises a variety
of violations, and that a number of factual issues need to be determined.
It would be difficult to determine any possible outcome of the case
at the present time. The domestic trial held on Imrali Island was
tainted over and over with rights violations and legal irregularities.
A consistent application of the principles of supra-national law
to this process will show the necessity for a a re-trial. So there
is a chance of the Court ordering a trial de novo, even though it
might be a small chance. Another legal argument is that unlawful
abduction constitutes a bar to trial, i.e. the authority of the
State Security Court to make Mr Ocalan stand trial at all is being
contested. The outcome that Mr Ocalan himself wants to achieve could
best be characterised as a discussion on the Kurdish issue within
the framework of the fundamental rights of the Kurds, against the
background of international law, a discussion that is to result
in a democratic intervention of law on the basis of the fraternity
of the two peoples involved, their freedom and their equal rights.
Mr Ocalan has emphasised that he does not have any personal expectations
in this case but that he does allot it a historic role in the sense
that the underlying question be taken up on the basis of universal
rights.
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