International Initiative
Freedom for Ocalan – Peace in Kurdistan
P.O. Box 100511, D-50445 Koeln
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Url: www.freedom-for-ocalan.com

Cologne, 30 May 2005

INTERNATIONAL INITAITIVE BRIEFINGS:
Against all reason: Turkey tries to play for time in Ocalan case

In the past, Turkey has always tried to play for time when facing judgements that were critical of it, but has never been able to avoid them. When it has tried to impose its will in international law through political actions, employing the same methods as it uses domestically, it has not worked. In the European Human Rights Court (ECHR)’s judgement of the case of Mr Öcalan we can see the same behaviour and the same results.

For example, no one in Turkey questioned the high price of the DSP-ANAP-MHP coalition government’s decision to drag out the payment of compensation after the 1998 ECHR judgement in the Loizou case (which related to Cyprus). As might be recalled, though he did not agree with the decision to award £ Cyp.320,000 ($US 500,000 in those days), Turkey’s Permanent Representative to the Council of Europe, Mr Numan Hazar, later, in 2003, had to write a cheque for $m1.5 for the General Secretary of the Council, Mr Walter Schwimmer. This was the only way to resolve a case which put Turkey’s membership of the Council of Europe at risk. It looks as if Turkey is trying to do the same for the judgement in the Öcalan case. But it should realise that it may end up as the loser once again. Because even if the judgement by the ECHR appears to be ambiguous, it is in fact quite clear and binding. It said that because Turkey did not try Öcalan before an impartial and independent tribunal, he did not get a fair trial.

As a result, the March 2003 judgement of the ECHR lower court has been confirmed by the ECHR Grand Chamber on the 12 May 2005. But because the judgement is difficult to understand, it creates problems and leads to misinterpretation.

I was present at the announcement of the Court’s judgement and although I discussed it with the experts there I cannot say that I understand it completely, but then neither do the experts. This is why yesterday I rang the officials at the ECHR and discussed it with them. I asked one of the senior officials why the Court gave a judgement which is open to misinterpretation, how they envisage it being carried out, and whether a retrial would really be insisted on. The answer was in fact quite clear:

1. Judgements of the ECHR, despite some interpretations, are binding. Article 46 of the Convention says “Parties to the Convention, commit themselves to the definite judgements of the Court where they are the parties to the case”.
2. This judgement is different from other judgements regarding violation of Article 6 of the Convention in that it recommends a re-trial. Hence this judgement sets a precedent.
3. The ECHR recommends retrial as a proper means to remedy the unfair trial in the Öcalan case but it leaves the judgement to be implemented by the Council of Ministers due to the peculiarity and sensitivity of this case.
4. At the same time the Council of Ministers, as a political body, will decide how to implement the judgement after consultations with the Government of Turkey.

In other words, the ECHR has given a “political” judgement that also shows the limits of the ECHR itself. It is the first time that the Grand Chamber of the ECHR has made a judgement which seeks to remedy the injustice persons are subjected to and in general to prevent the repetition of such violations in this way. This is why it is most probable that the Council of Ministers will abide by the judgement. This is the expectation of the European Union as well. The Commissioner for Expansion, Mr Olli Rehn has said “Turkey is required to comply with the ECHR judgement because it is a member of the European Council and a candidate for the European Union”.

The Grand Chamber of the ECHR, as is usual, has sent the judgement to the Council of Ministers, which will have the issue on its agenda at its 933rd meeting between 5 and 6 July 2005 and will presumably give a decision after hearing the view of the Turkish delegation. Until this date Mr Öcalan’s lawyers will be continuing with their work. But the AKP government cannot avoid resolving this issue whether or not it wants to.


This article was published under the title “Council of Ministers has the last word” in the pro-Kurdish daily Ozgur Politika on 19 May 2005.

Translated and edited by Peace in Kurdistan Campaign