Trial Observation: ISTANBUL – 23rd to 26th December 2013
In Istanbul, during Christmas, as international observer in a trial starting on the 24th of December against 22 Turkish lawyers of the ÇHD group. I go, sent by EDL (European Democratic Lawyers) a European association regrouping democratic lawyers’ associations in diverse European countries, sent also by LTI (Legal Team Italy), a small group of Italian lawyers (adhering to the EDL) whose experience begun during the demonstrations in Genoa, in July 2001, and whose work has been characterized especially by being present with its members in nearly all demonstrations, in which violations of rights are conceivable, sent as well by the UCPI (Unione delle Camere Penali), the largest and most representative lawyers’ association in Italy, even if it only regroups lawyers working on criminal law.
At the trial, around a dozen foreign lawyers and journalists are present, accredited by associations similar to those who have accredited me. There is a Spanish colleague of the EDL as well, a Belgian lawyer of renowned Progressive Lawyers Network, which has called for participation to observe the trial, and other German, French, Austrian and Dutch.
If you want a precise and synthetic idea of the relationship between Turkish lawyers and the government, it is sufficient to visit the office of the President of the Bar Association of Istanbul, look up and ask about the hole on the ceiling. “It was a bullet from a machine gun”, says the Dean, “it was shot by a military helicopter. It missed me by a few centimetres, while I was working at my desk. An aim capable of making American drones jealous.
On a larger scale, things do not get better. There are at least 4 inquiries lately concerning a great number of lawyers. There is trial at the moment (the hearings took place mid December) against 46 Kurdish lawyers, accused of defending their clients (members of the PKK) in their own language and therefore accused of membership in the PKK themselves. The above mentioned Dean of the Bar Association of Istanbul is also confronted with a trial starting on the 7th of January, together with 12 members of his board for abuse of authority, because they did not assume disciplinary sanctions against lawyers of his Bar Association as the government pretended. The lawyers we have all seen in a video last June, as they were dragged out of the Court of Istanbul, who were arrested and detained for days, were luckier: a judged decided there was not sufficient material to take them to trial. And finally, there are the 22 lawyers of the ÇHD for whom the three hearings during Christmas are held.
To give an idea how much the Turkish government appreciates real lawyers, on the 23rd December, a Dutch lawyer was expected from Amsterdam, as international observer, but she was sent back as “persona non grata”. The reason? Back in 1999 this lawyer won a trial in front of the EHRC concerning the composition of the special court, which condemned Oçalan, and which was composed also of military. After 14 years she is still “non-grata” for having defended well her famous client and having won the European trial.
THE ÇHD AND THE ACCUSATION AGAINST 22 COLLEAGUES
The ÇHD (Progressive Lawyers Association) is an association of lawyers, not only criminal lawyers, active in the whole national territory, with headquarters in Ankara and sections all over the place. The lawyers of this group (around 2200) defend demonstrators, house squatters, people whose homes are requisitioned in favour of real state speculation, labour procedures, sometimes under the aegis of trade unions, to summarize, as is usually said, they defend “the last”, from a social point of view. They define themselves “socialist revolutionaries” and they were founded in 1974, but were banned from 1976 to 1990 by the military regime. Currently, in front of the special court in Sivrili their principal error is to have defended members of the group DHKP/C, which committed a serious of violent attacks years ago. In January 2013, the Public Prosecutor of Istanbul ordered a blitz against them and put some of them in jail, amongst them, the President of the association, Selgiuk Kozacagli, and Presidents of other sections. The accusation is of membership in a terrorist association, the DHKP/C, of which some of them have assumed the defence. Sometimes even outside Turkey. In Belgium, in the mid 2000, a trial against international terrorism took place with totally favourable results for them. During the blitz, their headquarters in Istanbul were entered and searched. The Dean of Istanbul assisted the search, for his office is in front of the ÇHD headquarters. The police destroyed computers and documents, and took away everything they found. Lawyers who were simply there were attacked and dispersed with the aid of pepper spray. Some dozen lawyers were detained in jail and released a month later. 9 of them are still in custody, those who had the major responsibilities in the association.
The accusation against the 22 lawyers of the ÇHD is 625 pages long, and includes not only indications on the violations but also elements that sustain this accusation. The crimes could be defined as “membership”, “support” or “external membership” in the terrorist organization DHKP/C, crimes with the penalty of 5 to 10 years of imprisonment, in one case a colleague is pointed out as instigator (from Belgium, where she resided at the time) of two homicides, for her, they have asked for a double life sentence.
The elements of material evidence of the accusation reside fundamentally on the declarations of “secret witnesses”. The “secret witness” is a well-known figure in these trials. His declarations are put together by the police, often under torture or intimidation and then transferred into the files of the investigation. The Public Prosecutor does not know their identity and neither does it appear in the files. The defence does not know their identity and neither does the judge. In general these declarations are very long, sometimes even hundreds of pages, and totally impossible to verify. The institution of the “secret witnesses” was introduced by an anti-terrorist law (Witness Protection Law), which gives the judge the faculty of taking precautions for the protection of witnesses. Even though the secrecy of witnesses constitutes an extrema ratio, it has become ordinary praxis. It is true that no condemnation can be based exclusively on the declarations of “secret witnesses”, but they constitute the axis of the accusation, to which other elements are added. These elements are often very marginal and to the eyes of a common observer, of little significance. In this case, the membership of the lawyers in the terrorist organization is supposed to be proven, for example, by the fact that some of them have attended the funeral of their clients, victims of clashes, or because they have protested for the health conditions of their detained clients, by the fact there are photos of them together, because they opposed the entrance of police agents who had no search warrant, or by their participation in international seminaries or conferences on political or juridical themes and especially by the fact that their clients decided to use their right not to declare in front of the police, prosecutor or judge.
Additionally, the accusation is based on some international documents from the years 1999 and 2003, which have appeared in the trial against members of the ÇHD in Belgium around 2005. The lawyers in this trial were absolved. These documents (evidently not of special significance) have been decreed “secret” in Belgium and therefore cannot be verified by the defence, so their origin, composition and the modality of transfer from Belgium to Turkey remains unknown.
All this evidence of the accusation is given to us by very active members of the ÇHD in a briefing the day before the trial, in a meeting held in the Bar association. They explain not only the accusation against their colleagues but also the composition of the special court, the anti-terrorist legislation and other useful information for the trial the next day.
After a press conference, to which we have also participated as international observer and the above mentioned briefing, a demonstration took place, not only on occasion of the trial of the following day, but also to protest against the continuous intimidation and the illegal treatment the lawyers suffer. The demonstration leaves at 19h from the headquarters of the Bar Association in the centre, on Istiklal Avenue and some 2000 lawyers participate in their robes, with leaflets, banners and torches. The demonstration is opened by members of the Bar association holding a banner, reading “They will not keep us quiet”. Slogans shouted: “Shoulder to shoulder against fascism”, “We are revolutionary and we are proud”, “We will not be quiet”. Shouting them, are very young lawyers, who do not look especially “revolutionary”. We walk up Istiklal Street up to Taksim Square (the one where the Gezi Park unrests took place) but halfway the police block us. They do not attack us, so we do not have to use the strange concoction of dishwashing liquid and limestone removal some young colleagues give us against teargas and pepper spray.
There is some tension, all the area –as we later notice- is full of policemen in their anti riot gear, but the President of the Bar Association stands on the top of a light van and holds a strong speech, which is highly applauded, not only by the lawyers but also by passers-by (it is rush hour in this central shopping area). “We will not arrive to Taksim, but Taksim is here, in each one of us”, this was one of the slogans during the Gezi Park protests. The policemen are shouted “take off your helmet, no pepper spray and then we can talk”.
I think it is appropriate here to introduce a consideration on the composition of these lawyers (although it merits much more space).
In Istanbul there are some 1300 lawyers: not many for a city of 15 millions inhabitants, if compared to Italian or Spanish lawyers. Some are young, many are women. The participation to the demonstration, as well as to the trial is massive. Massive was also the defence of the Gezi Park demonstrations. These young people are very prepared and very determined to claim guarantees for their clients and rights for their profession. They do not seem to care too much for the form: under the robe there is hardly ever a tie. The experience of this trial, as well as those around the protest in Gezi Park certainly constitute an endowment, to be remembered in the future. It is interesting to underline the tight relationship between ÇHD, a free and private association, and the Bar Association, of institutional nature: the policy of the government concerning justice is menacing for lawyers and the bar association realizes this as well.
Afterwards, we end the day with a wonderful dinner of mezze and kebab in a good restaurant, all together, invited by the Bar association.
The colleagues of the ÇHD (those who are not imprisoned obviously) have organized well. We leave Taksim at 8 o’clock with busses in direction of the village of Sivrili, one and half hour away from the city in the direction of Edirne. We arrive in a hilly region, controlled by the military. The first controls (on the bus) take place quarter of an hour before our arrival to the court. The court is in the periphery of a detention centre, surrounded by a barbed wire fence and watchtowers. To give an idea, take the Roman prison of Rebibbia and multiply by 20.
The building of the court is new and well devised. The controls –at least for the lawyers- are not particularly severe. It is forbidden to take photos, but it can be easily bypassed. There is a big bar and a big canteen, wonderful toilets. The court is enormous with three judges and the Public Prosecutor on the side (but at the same height). An incongruous ionic gable in plaster surrounds the court, and there are two big flags on the side and two big screens a little further up. The accused are in what we could call the stalls area, the audience facing the judges on the opposite side, and the lawyers are on small stands on the two sides. The trial starts more or less punctually with the roll call of the accused. Of the nine detainees, five are women. Then it is the turn of the lawyers: it takes a long time because the present lawyers amount to five or six hundred, each declares the bar association to which he/she belongs as well as the fact they defend “the lawyers”, playing on the fact that the accused are lawyers but that they are also defending the status of lawyers. This is possible because there is no limit in Turkey to the number of lawyers each accused can have. Around 2000 lawyers had registered as defenders of the 22 colleagues, and there are at least 500 in the court (it will not get any less crowded in the following hearings). We, international observers get called as well, together with the different associations we belong to and we are made to sit in the stalls area, behind the accused. This is a privileged position to follow the trial. The ÇHD provides us with translators from Turkish to English, French or German: there is one every two observers and they change every 20 to 30 minutes.
The indications and agreements for these first three hearings are not to loose time in preliminaries and go directly ahead to the self-defence of the accused. In fact, in Turkey the trial begins with the version of the accused. In this case it is even more relevant because they are lawyers. So the defending lawyers ask that the 600 pages of the accusation be declared read. But the courts intends to give a short summary of the long document, underlining elements as the fact the orders arrived from outside Turkey for ÇHD as well, that these lawyers worked without hardware, but only from CD or external usb keys, or that they participated in international conferences paid by the organization, that as members of the ÇHD they were also members of the outlawed PKK, that the president visited a client in hospital because of his hunger strike, that even if not all were defended for free, the organization covered the fees of some of them. Of particular importance is the fact that in the past some of them belonged to the PLO (People’s Law Office- code name: bakery) considered the legal cover of the DHKP/C, which decided whom to assist, but also with which lawyers. The relationship between ÇHD and PLO is the most critical point of the strategy of the accusation and it is worth to explore this element, even if it does not relate to most accused.
After lunch, President Selgiuk starts to talk, with some 300 pages in front of him, he talks well into the next morning. Other 8 detainees continue after him, with speeches that are more or less long. It is evidently a collective self-defence with a division of tasks as to not repeat the argumentation. Selgiuk is great orator, who refers to the bastions of occidental culture (from Dostoyevsky to Shakespeare, from Babeuf to Luis Blanc and many others) trying to convey the special role of the court. “Everybody remembers the name of Socrates and Galileo, but nobody remembers the name of their judges” he says very efficiently. But it is also very efficient when he reads out all striking judiciary horrors since the Ottoman times, or when he describes with lively details of tortured detainees who were buried at night, so other detainees would not see the torture and death which derived from it. Or the story of two lawyers assassinated and how their arrest was a real kidnapping. He also cites constitutional principles. The most efficient point is his summary: “The prosecution asks for a penalty and needs to construct a crime. This is its tragedy. Do not let it be your tragedy. We defy you to demonstrate your independence”. The issue of the theoretical construction to legitimate the raid against the lawyers of the ÇHD and afterwards to justify their detention and trial is in essence the issue of this case, which qualifies it as a real political issue, of particular importance because centred around lawyers.
The other 8 detainees talk more or less around the same line, but each one of them describes different areas (right to work, right to housing, right to demonstrate etc) giving the precise idea that the association aimed at a more extensive aim than just occasionally defending members of a terrorist association. Even if, I must admit, it had not happened to me for the longest time, to hear so many times the concepts of “capitalism”, “colonialism”, “bourgeoisie” and all the ideological concepts that we find somehow out-dated. It does not matter, for the defence seems efficient and well founded: the demand to be able to confront the secret witnesses is made with force: the claims regarding the role of the lawyer are also forceful. “You accuse us of making 175 of our clients use the right not to respond, but the accused were 400: who made the other 225 talk?”.
The third day of the hearings, the last 9 detainees speak, then around a dozen of the 500 defenders present. These interventions are short, and ask for the liberation of the clients and to fully reclaim the role of defender as an independent role, ruled by internal rules, controlled by the bar associations. “You accuse 22 colleagues of not working correctly in certain trials” argues a defender, member of a Bar Association and host of the dinners offered by the Bar, “well, I have followed the same trials in the same way they have. Why am I not amongst the accused?”
All the interventions are followed in silence and attentively not only from the audience, mainly composed of family and fans, but also by the hundreds of colleagues, some parts are underlined with applauses. The President of the court calls twice not to shout slogans, but the atmosphere is warm in relation with the detainees: they are saluted, and kissed from a far, all the colleagues present participate. You get the impression it is a very important and significant trial for the Turkish lawyers. Not only is the President of the Istanbul Bar Association present, but also the Dean of the one in Ankara, Smirne, Adana and other cities. All of them talk briefly. The Public Prosecutor takes up the word but limits himself to consenting the liberation of six of the detainees.
The court retires at 19h. It only has to decide on the liberation of the detainees, it is not empowered to reformulate or reject the accusation, on which the main hearings will deal.
The three days of the trial (the next hearings will take place after many months) have taken place, while outside in the media and the streets some economic scandals echoed (very Italian, you might say), as sons, parents and friends of a Minister in charge were found with their hands’ in the cookie jar while the took bribes (the television shows the machine with which they counted the amount of money of the bribes, not even Ligresti did this here!) Ten ministers have to go, and the government of Erdogan seems weakened. There are demonstrations in all big cities, as at the time of Gezi Park, asking for the resignation of the whole government. In this context of uncertainty, might a special court, based on political criteria, like the one in Sivrili, not consider it convenient to distance itself from the lame governmental duck? Or will it come at its rescue with a strict decision?
The court enters at 21h: there is tension and agitation in the audience and amongst the lawyers. Four of them are freed, and five in jail, amongst them naturally President Selgiuk: there is general disappointment and the audience shouts slogans. A partial satisfaction for the experts, and I include the international observers, because the accusation has been somehow dimensioned.
A FIRST ASSESSMENT
Naturally, and even if they put at our disposition a very relevant quantity of information, it is difficult to assess a trial you do not know. I will try to clarify some points:
- 1) We are surely dealing with a political trial, based on a theoretical construction with the political aim of levelling the defence without taking account of the complexity of the subject accused: ÇHD association.
- 2) The trial is political because it takes place in front of a special organ like the Special Court, politically designed.
- 3) The trial, because of the modalities of construction of the evidence (secret witness with no cross-examination, electronic documents with no expertise, declarations given under torture etc) is far from the principles of a fair trial.
- 4) This trial is turning into an important moment in the construction of an awareness of the role of the defence and of his rights, therefore of the guarantees of the citizen. Around a free and private association of lawyers, a consensus of Turkish criminal lawyers is being created; It is clear for all what is at stake in this trial and the lawyers do not intend to see themselves loose rights and functions.
- 5) Amongst Turkish criminal lawyers grows the awareness of the need to obtain a really independent judge, away from the prosecution, which although formally independent, is only an extension of the government through the police. On the other hand, the need for a trial with rules permitting the verification of the evidence presented by the accusation.
- 6) The trial, this trial especially seems to me to be halfway between old and new (even if the old prevails), as somehow happens in Turkish society as well, which is cut across by the drive towards innovation (economic and social in every direction) but is continually brought back to models and values which are old and antidemocratic, especially by the political caste.
- 7) The role in this dynamic that lawyers have and in future might have (specially the criminal lawyers is fundamental and clear, for good or for bad, and for all deployments in the field).
 In Turkey the position of a detainee in pre-trial detention is examined monthly.
 Pre-trial detention is not based on a decree, the evidence can be known months afterwards. In the case of the ÇHD lawyers, arrested in January, this evidence was given in July.
 The most specific evidence has been given to me by the Belgian colleague Jan Fermon, at the time defence lawyer and currently international observer.
 You can become a lawyer after studying for 4 years and an internship of a year, 6 months with a judge and 6 months in a legal bureau, afterwards you can demand entry into the bar association, where after a screening, generally positive, you can start practising. There is no specialization.
 It is worth to reflect (and I think it has not been done) on the role of lawyers in the new fights to affirm democracy in the whole Mediterranean area (Tunisia, Egypt, Turkey). If now you find in the first rows a new generation of lawyers, the older ones are no cowards either. This fact is new and extremely interesting.
 It is true that some members of the ÇHD have collaborated with the PLO in the past for short periods, but no one has doubted the legality of the association.
 The court is in fact a special court, even if it is provided for in the law and designated by the Superior Council of the Judiciary. Its competence includes terrorism, organized criminality and in general crimes committed in the national territory. It is worth reminding that the Turkish High Council of Magistrates and Prosecutors, HSYK, is composed of 22 members, amongst which, and by law, the Minister of Justice, who is the president, as well as undersecretary of the same minister. Of the rest only 5 are magistrates. This council decides on the careers, appointment and dismissal of judges and prosecutors. This composition is the result of a novelty of the Erdogan goverment and since then the interference of politics in the affairs of justice is stronger than before. The composition of this special court is one of the most delicate activities of the council.
 In Turkey, the current Constitution is the one enacted in 1980-82 during the military regime, with successive modifications, irrelevant and not particularly progressive.
 None of the detainees has asked directly to be set free, because in their opinion, this would have meant the recognition of the authority of this special court, and thus the request has been made in the technical terms of the defence.
 The court, like it used to happen in Italy until 1989, knows all the documents of the investigation, which are put at the disposal by the accusation.
 See note 7.
 Subjective side note: the trip was a tremendous backbreaker. Even someone like me, who is skilful, especially when travelling, in the difficult art of joining business with pleasure, has had to capitulate. We wake up at 6h30 to be in Taksim by 8h and take the bus to Sivrili, which takes an hour and a half to reach the Sivrili compound. The hearing starts at 9h30 and goes on to six, seven, even nine o’clock at night, interrupted only by a sandwich in the cafeteria, and then the trip back. The only pause, useful to talk with Turkish colleagues and the other observers in a relaxed manner, is diner. Afterwards you go to bed dead tired to wake up the next morning early.
But the greatest fatigue comes, I assure you, in following a hearing during 8 or 9 hours with the interpreter murmuring in your ear. You would like to ask some questions, and try to during the pauses, and you want to take notes and elaborate them to ask more questions. In summary, killed during Christmas. I also took some significant photos I can show you if the occasion arises.