No Fair Trial In Turkey

The European Court’s decision in the Ocalan case

An interview with Mr. Ocalan’s lawyer Irfan Dündar

by John Tobisch-Haupt

On 12 March 2003 the European Court of Human Rights (ECHR) announced its decision in the Ocalan case. According to the decision your client did not get a fair trial. Turkey immediately said it would appeal against the decision. You also expressed discontentment with the judgement. What will be your next steps?

You are correct. On 12 March 2003 the lower chamber of the ECHR announced its decision and both Turkey and we as Mr Ocalan's lawyers have already signalled that we will appeal against the decision.

Overall, this judgement represents a step forward; however, we are not satisfied with the result. The chamber has not tapped the full potential of what was possible. It has not sufficiently accounted for the complexity of the case. In particular, it has ignored the illegal circumstances of our client's abduction. We are convinced that the European Convention on Human Rights was violated in twelve different points and this is why we had filed an application with the European Court. The Court, however, granted only some rather technical points. The background to this complicated and complex case was largely blanked out. Therefore we find the decision insufficient. We will therefore be looking into the chances of an appeal against this decision. If it is admitted, this appeal will then be heard by the Grand Chamber. We are confident that this will be the case. As to the duration of these proceedings, we can only speculate at present.

You have already indicated why you find the decision unsatisfactory. Can you explain in more detail?

Following proceedings lasting three years, the European Court for Human Rights has announced its decision in the Ocalan case. It has condemned Turkey for violations of Articles 3, 5 and 6 of the Convention; that is for torture and degrading treatment, for violation of the right to freedom and physical integrity, and the right to a fair trial. The remaining points were either dismissed or the court considered that they belonged within the context of the articles already cited.

Thus, for instance, Abdullah Ocalan's inhumane solitary confinement might have been judged as psychological torture and degrading treatment, forbidden under Article 3 of the Convention. However, the court only saw that there was a violation of this article in the applicant's lasting uncertainty concerning the execution of his death sentence, which it considered to be incompatible with humane treatment. The court did not question either the prison conditions or the death penalty itself. The same holds for the applicant's right to an adequate defence where the court did not find fault with the systematic prevention of our meetings with our client, which we consider to be a violation of the convention. On the other hand, the court found thaat there was a violation in the duration of the time our client was held incommunicado after his abduction and the time before he was allowed to see a lawyer.

Although we regard the decision generally as a step in the right direction, it is insufficient with a view to the circumstances of the illegal abduction of our client to Turkey which the court did not take into consideration. This operation was a breach of European law, under Article 5, paragraph 2 of the Convention. We will not accept this; on the contrary, this will be a central point in our appeal, which also will comprise Article 8 (protection of privacy), Article 9 (Freedom of conscience), and Article 10(Freedom of expression).

Our opinion is that the decision has not sufficiently accounted for the social background underlying the Imrali trial.

Although applications to the European Court are only admissible on an individual basis, it is at least questionable whether this may serve as a reason for completely ignoring the social context. The Imrali trial was necessarily a political trial by which our client was exclusively held responsible for an unresolved conflict. Therefore, the trial is also a result of the unsolved Kurdish question. The court cannot make up for unsatisfactory politics; however it could be expected to at least take the political dimension of this case into its considerations when reaching a decision - and to name the conflict. This would have been a contribution to a democratic solution of the problem. Our client takes the same view. This is why he repeatedly demanded a renewed trial before an international court.
In short: The court did not live up to its potential. Therefore the decision is unsatisfactory and we will file an appeal. Rightfully, we have to observe that the admission of the application, as well as the interim measure suspending the execution of the death sentence, were in favour of a positive development of the case and have thus contributed to the abolition of capital punishment in Turkey. In this respect, it is an enrichment of both Turkish and international case law.

A judgement of the European Court is binding on all member states of the European Council, including Turkey. Hence the Ocalan case would have to be retried. Is this a realistic prospect?

In recent years there have been adjustments to European law made by the individual member-states of the Council. This is not true for Turkey, however. In our opinion such speculation appears quite premature at present as we have not yet tapped the full potential of the European Court. Only if and when this decision becomes legally binding we will have to make observations in this direction. Whether a retrial in Turkey would be fairer than the first one is at least questionable.There is not much elbowroom for this considering the political situation in Turkey.
As soon as Abdullah Ocalan is concerned, the principles of law seem to stop being of much importance.
Any objective assessment of the Ocalan case is de facto impossible. A retrial would necessarily be influenced by political considerations, at least partially owing to the Turkish legal system. Let me only refer to Article 125 of the Turkish penal code, which is a counterpart to the Italian penal code of the Mussolini era. This article stipulates that the death penalty should be used in cases involving attempts to secede from the Turkish state.

Abdullah Ocalan on his part, however, has repeatedly asserted that there was no such intentions and that he had only demanded the rights of his people. Nonetheless he was sentenced to death for high treason.
In view of such an undemocratic legal system it is doubtful whether a fair trial in accordance with the rule of law is possible at all.

The point is that what is needed is not a reassessment of some formal errors but a guarantee of the principle of fairness, which does not exist in the present situation.

Since he was delivered to Turkey Abdullah Ocalan has been kept prisoner on the island of Imrali in degrading conditions. These conditions have been increasingly tightened, even since the last quarter of 2002. After four months of total isolation you were allowed to see your client again for the first time on 13 March 2003. What was your impression, what is his mental and physical state? How did he react to the judgement of the European Court?

Our client has been exposed to strict solitary confinement for four years. Even before his prison conditions became so severe there were arbitrary obstructions put in the way of his legal visits, and visits from his family were also hindered. Since November 2003 these have been completely prevented.
This is an act in violation of all legal principles. Officially the reason is always given as "adverse weather conditions."

Obviously, however, it is for political reasons that he is isolated. Although we were able to see him on 13 March, just only one week later the old practice was resumed and we were again not allowed to the island.

On 13 March we got a quite positive impression. He seems to be mentally stable and his state of health has not worsened, although this does not mean it is satisfactory.
Owing to the solitary confinement our client has lost his sense of smell. His concentration has weakened, and he suffers from an allergic irritation to the mucous membranes, which has in part led to massive difficulties in breathing.

Though our client sees a doctor regularly he is only examined superficially. No thorough medical examinations are carried out.

We had the opportunity to discuss with him the possibility of a retrial as well as the decision of the European Court. Though Turkey has enacted a new law allowing for retrials after a corresponding decision of the European Court - as in the case of Leyla Zana - pending proceedings were deliberately excepted.
Hence a retrial does not seem possible in the Ocalan case. This is, of course, a major obstacle.

Understandably, our client regards the ECHR decision as unsatisfactory for the reasons stated.
He therefore authorised us to file an appeal.