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The Ocalan laws: a litmus test for Turkish
justice
2.11.2005
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November 1, 2005
INTERNATIONAL INITIATIVE BRIEFINGS: (Produced in
collaboration with the Trial of the Century office
in Istanbul, which represents Abdullah Ocalan).
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his client is in addition officially withdrawn,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")
www.dozame.org
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