International Initiative
Freedom for Ocalan – Peace in Kurdistan
P.O. Box 100511, D-50445 Koeln
Telephone: +49 221 130 15 59
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E-Mail: info@freedom-for-ocalan.com
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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.