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Cologne, 1 November 2005

INTERNATIONAL INITIATIVE BRIEFINGS:

(Produced in collaboration with the Trial of the Century office in Istanbul, which represents Abdullah Ocalan)

The Ocalan Laws – a litmus test for Turkish justice

Since 1 June 2005 Abdullah Ocalan’s lawyers have had no contact with their client. And his relatives have been arbitrarily prevented from visiting him for three months. According to Ocalan’s lawyers his health had deteriorated in the first six months of the year. Because of the complete isolation in which he is now being held, there is no information as to his current condition.

The reforms of the Turkish criminal law designed to bring it into line with EU law gained international recognition and indeed praise. But few people are aware of the special regulations that were introduced in the wake of the EU reforms, or of the fact that they actually put a question mark over the genuineness of the reforms themselves. Their nature is particularly clear in the case of Ocalan:

1.It is true that as part of the reform of the criminal law the legal preconditions for the implementation of the judgements of the European Court of Human Rights were created. A paragraph was added to Section 327, 2006, in which reference was made to their being legally binding. But in the new Penal Code, 5353, s.311, para.2 there is a restriction under which the rule is valid only for cases after 4 February 2003. So under the new Turkish Penal Code there can be no retrial of the Ocalan case as had been demanded by the European Court of Human Rights. And a further 90 people are affected by this special rule, known by the public in Turkey as the “Ocalan Loophole”.

2. Changing ss.22 and 151 of the new Penal Code has a direct effect upon the abilities of lawyers to carry out their profession. These sections relate to defence lawyers whose client is being prosecuted for or has been convicted of “terrorist acts”. A vague suspicion of “assisting” is sufficient to trigger a criminal investigation of the lawyer in question, and a simple application by the relevant public prosecutor is all that is required. For the duration of the investigation the lawyer’s brief to represent his client is in addition officially withdrawn, which implies that the normal legal presumption of innocence is suspended. While the investigative process runs its course the lawyer is not allowed to visit his client or act on his behalf in any way.

Considering the timing, that these legislative changes were brought into force before judgement was given by the ECHR in Ocalan’s case, and considering what was said in the debate on the issue in the Turkish Parliament, it seems reasonable to conclude that Ocalan’s case played a significant part in the considerations of those who formulated the legislative changes and the special rules, which came into force on 1 June 2005. A few days later six of Ocalan’s lawyers had their brief to represent him withdrawn. In the meantime, in an unprecedented development, twelve lawyers are in effect banned from working in their professional field.

3. Also the following changes in Turkey’s penal system and code of criminal procedures are clearly connected to the case of Abdullah Ocalan. For example, article 5 of the new law reforming the Turkish penal system (no. 5351) issued on 25 June 2005 abolishes the basic principle of legal confidentiality between lawyer and client. According to the confidentiality principle, the client has the right to meetings with his/her lawyer without the interference of official supervision as well as the general confidentiality of the relevant documents concerning his/her case. With the introduction of the legal reform, the vague suspicion of ‘abetment’ is enough to allow meetings between lawyers and clients only under supervision by an official, all conversations being recorded and relevant documents of the legal defence being copied or confiscated. This new measure is suppose to prevent alleged coordination and cooperation between those ‘terrorists’ already imprisoned and those still running free. A simple request by the public prosecutor to the judge in charge is all that is required. It is for this judge to decide on the recording of meetings and confiscation of material as well as on the return of confiscated documents. This new legal measure has been enforced once so far. The meeting between Abdullah Ocalan and his team of lawyers on 1 June 2005 took place under official supervision. All conversations between lawyers and Ocalan were recorded and all the lawyer's documents were confiscated. The extent to which the Turkish government's reforming Turkey’s legal and penal system has been fixed on the case of Ocalan and the unresolved Kurdish question is demonstrated by a speech given by a member of the Turkish parliament and member of the governing party AKP, Ersonmez Yarbay. During the parliamentary debate of the new laws concerning Turkey’s penal system and criminal code, he proposed a special law covering the prison island of Imrali only rather than a general law which massively interferes with the basic civil rights of all citizens. There was no open parliamentary majority for a Lex Ocalan. At the end, it came under the cloak of reform.

(Translation from German original by Peace in Kurdistan Campaign)