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The
Turkish Daily News -14 April 2005
The European Court of Human Rights will announce its
decision on complaints filed by PKK leader Öcalan’s
lawyers. What will the decision entail? What will
Turkey be asked to do? I have drawn up a few
scenarios for those interested.
The European Court of Human Rights will most
probably announce its decision on a complaint filed
by Kurdistan Workers' Party (PKK/Kongra-Gel) leader
Abdullah Öcalan's lawyers in the next week or 10
days. Actually, the decision has already been made
but hasn't been officially announced. Öcalan's
lawyers had argued that Öcalan's trial was not fair.
The European Court of Human Rights could make two
decisions.
The first possibility is the court saying, “Öcalan's
right to a fair trial was violated.”
In addition to this decision, sometimes the court
proposes ways to alleviate this violation. For
example, it may say, “The best way to address this
situation is to hold a retrial.” However, this is
just a recommendation. It's not binding. The final
decision on the court decision will be made at the
ministerial conference with all European Council
members, including Turkey, present. This committee
is responsible for the implementation of European
Court of Human Rights decisions. The court behaved
the same way to Italy and other European countries,
and the inclusion of military judges in the State
Security Courts (DGM) was a note of contention. If
the ministerial committee decides that Öcalan's
retrial is necessary, a new process will start for
Ankara.
Turkey will be forced to annul the exception
noted:
The government will find it very hard to cope with
this process because the exception noted in 2003
needs to be annulled.
In 2003, as the fourth harmonization package was
being drafted, an exception was introduced to an
article that said if there was a contradiction
between the European Convention on Human Rights and
national laws, the European Court of Human Rights
decision for a retrial would take precedence. The
exception to the rule was Öcalan. This article did
not cover him. The text of the article reads as
follows: “This article is applicable for European
Court of Human Rights decisions that are finalized
and the applications lodged after February 2003.”
A technical maneuver was used to keep Öcalan out.
Legal experts differ on this issue. The recently
amended Article 90 of the Constitution stipulates
that international laws take precedence. In other
words, the European Court of Human Rights may be
accepted.
This leaves Turkey with two options.
- The exception included in the fourth Harmonization
Package will be annulled and Öcalan will be retried.
- If the exception is retained, Öcalan's lawyers
will use Article 90 of the Constitution to lodge a
new application with the European Court of Human
Rights. This article will make sure they will easily
get the decision for a retrial.
Second possibility would be better for Turkey: There
is also the possibility of the European Court of
Human Rights recommending a reopening of the Öcalan
case. This wwould change the process somewhat. This
will give Öcalan the right to file an petition
arguing he was unfairly tried. It will mean that the
court is recommending Turkey not block such an
application.
This possibility will open the way for the Ankara
Criminal Court, which is looking into the cases left
over from the DGMs, to consider and decide on
Öcalan's application. The court will have the right
to accept or reject it. If the court rejects their
petition, Öcalan's lawyers will have the right to
contest the decision at the Supreme Court of
Appeals. However, the European Court of Human Rights
will care what happens. For it, the right to lodge a
petition with the court will be enough.
Consequently, it will be easier for Turkey to deal
with the second possibility.
Öcalan problem persists: The ruling Justice and
Development Party (AKP) government is aware that the
decision is soon to come and that's why it
approached the opposition Republican People's Party
(CHP), requesting its help in removing the exception
in the fourth harmonization package to open the way
for Öcalan's retrial. According to information we
received, CHP leader Deniz Baykal was not adverse to
the proposal at first, but it appears after the
recent flag incidents, the CHP doesn't want to be
involved in the matter. Many sources even claim that
the recent incidents are being incited by certain
groups to create an opposition block against the
retrial of Öcalan. They say these groups are trying
to hurt the AKP by using the government's obligation
to choose between European law and domestic
political considerations.
We now must wait for the European Court of Human
Rights' decision. The trouble the government will
face will depend on the content of that decision.
www.kurdishinfo.com
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