Turkey must uphold Ocalan's right to defense
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Rights Group Demands Fair Trial for Ocalan
OCALAN TRIAL MONITOR
Backgrounder on Turkey's State Security Courts
On February 15, 1999, Abdullah Ocalan, leader of the Kurdish Workers' Party (PKK), was apprehended in Kenya and transported to Turkey, where he has been held ever since on the prison island of Imrali. Ocalan's trial is scheduled to begin before the Ankara State Security Court on May 31, and will take place on the island of Imrali. Based on its observation of many State Security Court trials, Human Rights Watch believes that such a trial will almost certainly fall short of international standards. Indeed, the nine days of incommunicado detention imposed after Abdullah Ocalan's initial abduction, in addition to the intimidation and obstruction of his defense counsel, have already put the proceedings in doubt.
State Security Courts are a creature of the military. Heirs to the infamous martial law courts, they were established under Article 143 of the constitution promulgated under the military junta in 1982 "to deal with security offenses against the indivisible integrity of the State with its territory and nation, the free democratic order, or against the Republic whose characteristics are defined in the Constitution, and offenses directly involving the internal and external security of the State."
Just as the constitution established a channel for military supervision of the government through the National Security Council, the influence the armed forces was built into the structure of the State Security Courts by placing one military judge together with two civilian judges on each court panel. The prosecutor may also be a serving army officer.
The European Court of Human Rights, in its decision Incal vs Turkey (1998), concluded that the presence of a military judge in Turkey's State Security Courts was in violation of the principle of the independence and impartiality of the judiciary, safeguarded by Article 6 of the European Convention on Human Rights. In its verdict, the Court stated that:
[T]he applicant could legitimately fear that because one of the judges of the Izmir National Security Court was a military judge it might allow itself to be unduly influenced by considerations which had nothing to do with the nature of the case...In conclusion, the applicant had legitimate cause to doubt the independence and impartiality of the Izmir National Security Court. There has accordingly be a breach of Article 6(1).
In the intervening twelve months, no steps have been taken to address the concerns raised by the European Court of Human Rights.
There are State Security Courts in eight cities in Turkey, dealing with thousands of cases brought under the Anti-Terror Law. The definition of "terror" contained in this law is so broadly drawn that alongside cases of political arson and murder, a State Security Court may try respected politicians, journalists, human rights campaigners, and schoolchildren. Defendants branded as terrorists by conviction in State Security Courts include Recep Tayyip Erdogan, mayor of Istanbul, currently serving a ten-month sentence for quoting a poem that had been approved by the Ministry of Education but was deemed as provocation to religious hatred by the court, and Yasar Kemal, Turkey's most prominent novelist, arraigned for writing about the Kurdish minority in a German magazine.
Violations of the defendant's rights begin from the first moment a person is arrested for any offense under the jurisdiction of a State Security Court. The Turkish Criminal Procedure Code provides that the defendant can be held without access to a lawyer for four days, during which time the defendant's next of kin are not even informed that he or she is in custody. The Turkish authorities simply ignore the calls by the United Nations and Council of Europe bodies for an end to incommunicado detention, as well as a number of judgments at the European Court of Human Rights that have ruled that such provisions are in breach of the European Convention on Human Rights. State Security Court prosecutors and judges exercise little or no supervision over the initial police interrogation, apparently preferring to give the police a free hand.
As a consequence, police and gendarmerie often abuse detainees during the detention period. Almost without exception, State Security Court detainees emerge from police custody protesting that they have been subjected to ill-treatment or torture. Under the U.N. Convention against Torture, a court is required to investigate allegations that a statement has been extracted under duress. No statement found to have been made as a result of torture can be admitted as evidence against the person who made the statement. Nevertheless, State Security Court judges almost never initiate investigations into allegations of torture - even when the victims are able to show physical injuries to corroborate their claim - and routinely permit statements to be admitted into evidence that the defendant has retracted and has claimed were extracted under duress.
Trials in State Security Courts are normally scheduled in a series of relatively brief hearings over the course of one or more years. Defense counsel is routinely relegated to an inferior position in the proceedings. While the prosecutor sits on the court podium next to the bench, the defense counsel is placed back in the body of the court. This junior position is strongly echoed in the conduct of State Security Court trials - defense counsel requests for evidence to be produced or for witnesses to be summoned are commonly ignored. The defense counsel has no right to cross-examine, but may suggest questions to the bench which then decides whether to address the questions to the witness.
For many of those tried by State Security Courts -- those convicted of carrying out armed attacks on behalf of illegal political organizations -- the mandatory sentence is execution. There are currently forty-two prisoners whoBackgrounderon Turkey's State Security Courts
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