Now they do not need evidence, they create secret witnesses

It is Friday 16^th November and Belma and her daughter Zerya are attending Silivri high security court outside Istanbul. Zerya is six and half months old and was born while her father, Ismail, was in prison awaiting trial.

Silivri court is guarded by riot police, water cannon trucks, and ‘Jandarma’ the military police. The court itself is a cavernous building with visible ventilation ducts in the ceiling and seating in the public gallery for around 350 people. There are huge screens on which the indictment is shown as it is read out. The court is like an industrial warehouse. It is used for industrial scale ‘justice.’

Rumours are circulating among the public gallery about Turkish government concessions to Kurdish hunger strikers.

It is 66 days since the national hunger strike of Kurdish prisoners started. The Turkish prime minister has said that prisoners will not be allowed to die. But Kurdish news sources say that one man has been taken to hospital and that the health of the hunger strikers is deteriorating.

A few days before, the government had finally introduced measure to allow Kurds to speak Kurdish in court – one of the three demands of the hunger strikers.

People in the public gallery say that the boats which are needed to bring lawyers to Imrali island, where the leader of the Kurdish Workers Party (PKK), Abdullah Öcalan is imprisoned, are now going to be taken over by the Ministry of Transport. This may mean that Öcalan’s isolation is now over – the first demand of the hunger strikers. Previously the reason for not allowing lawyers to speak to Öcalan had been that the boats were not available or the weather.

Ismail Yildiz, Zerya’s father, is a journalist. Belma hopes that Ismail will be released. Unusually Ismail was allowed to speak in court.

Belma recites what he said to the judges: “I want you to be a human being. I would like you to hear my voice. I am also human. I want you to give me permission to see my daughter more closely during today’s trial.” Ismail worked for legal news agencies deemed to be pro-Kurdish. Writing about or supporting views which happen to coincide with those of an outlawed organisation is ‘terrorism’ in Turkey. Ismail was arrested on 20th December 2011. 44 journalists are on trial; 33 are still in prison.

The judges did not hear Ismail’s voice or his humanity. Only two of the 33 journalists still detained were released. Just before the announcement of the judge’s decision someone circulated among the crowd whispering: “Whatever the decision, smile and raise your hands.” Belma walked out of the court upright, head high, without a sound coming from her lips.

The hunger strike had been going on since 12 September. This date has significance in Turkey. It was on 12 September 1980 that Turkey’s bloodiest coup d’etat was unleashed. Thousands of people were arrested, tortured or ‘disappeared.’ The legacy still remains in the wording of the constitution created at that time and in the culture of impunity of those with power.

One defendant, GuneÅŸ Unsal, told us that she felt that the situation was worse now than in the period after the 1980 coup d’etat. “At that time they needed to have evidence, now they do not need evidence. They create secret witnesses.” She says that before in the 1990s, if they could not force you to sign a false confession, they had to release you. She complains that the European Union are uninterested in the current situation and points out that this is the fifth hunger strike. The one in 2000 ended with over 100 deaths due to the security force’s violence or starvation.

It is Saturday 17^th November in Sultangazi, a Kurdish area of Istanbul. Couches and comfortable chairs are being dragged into the park. A stove is set up and lit. Kurdish women in traditional clothes are starting a 48 hour solidarity hunger strike under a covered area as dusk falls. Giligin Isbert, a member of the BDP Party Assembly says that most Kurdish prisoners have now joined the hunger strike and that: “The police do this to suppress democratic protest. In prison there are about 10,000 who are on hunger strike. We are expecting [the prime minister] to respond to our demands.” A few hours before, police had pepper sprayed the people and taken away all the equipment for the planned 48 hour solidarity hunger strike. Two other planned solidarity hunger strikes in Istanbul were also broken up by the police.

The Kurdish news channels talk of the violent police response across Turkey to the planned 48 hour solidarity hunger strike. Then suddenly the news breaks that Öcalan’s brother was allowed to visit him after 16 months of nearly total isolation and has returned with a message calling on hunger strikers to stop their hunger strike as they had achieved their aims.

It is Sunday 18^th November and the press announce that the hunger strike has ended.

Although the hunger strike is over, the trial of Ismail and his colleagues is one of the many ‘terrorism’ trials which fill the prisons of Turkey with imprisoned and accused. The question of Kurdish autonomy and freedom, which was highlighted by the foundation of the PKK in 1984 and has endured throughout 28 bloody years, has not been resolved.

The International Crisis Group, a respected NGO whose current President is Louise Arbour, former UN High Commissioner for Human Rights, published a report on Turkey and Kurdish autonomy in September. The report estimates that about 7,000 people are currently detained, charged with belonging to, publicising the views of, or attending meetings of a terrorist organization. This includes those charged with involvement in left wing groups as well as Kurdish organisations.

In addition, the International Crisis Group also points out that the armed conflict has increased since the last national elections in June 2011. 711 people have been killed since June 2011, which is four times the total of deaths from military/PKK confrontations in 2009.

The steady drumbeat of televised funerals of young conscript soldiers feeds nationalism on the Turkish side while, on the other, the deaths of PKK fighters recruit more young men and women to ‘go to the mountains’ to join the PKK.

There were hopes of a solution to the issue of Kurdish autonomy in 2009. The authoritarian unitary state structure founded by Mustafa Kemal Atatürk in 1923 was beginning to come under attack by the religious governing party, the Peace and Development Party (AKP), which had been in power since 2002. Secret negotiations took place between the PKK and the government. International Crisis Group reports that subsequent leaks showed that both sides accepted that there could be no military solution to the Kurdish demand for autonomy. But the peace negotiations came to nothing. Since then, arrests and trials have increased and the rhetoric has become more extreme and uncompromising – particularly after the AKP’s strong election win in 2011.

There are currently many trials most based on charges relating to membership or support for the Union of Kurdish Communities (KCK) the alleged urban wing of the PKK. Amongst these are: 46 lawyers detained in November 2011; 44 journalists detained in December 2011; 205 defendants from the Peace and Democracy party (BDP) a legal pro-Kurd party; 71 trade unionists arrested in two sets of raids in February and June; 270 BDP elected officials and members of the Turkish parliament; and at least 2,820 students. Most of these accused remain in prison while awaiting trial as the judiciary rarely grants bail prior to, or during, a trial.

The justice system in which these accused are now trapped has been heavily criticised in a series of decisions by the European Court of Human Rights and by Thomas Hammarberg, the Commissioner for Human Rights of the Council of Europe in a report in January 2012.

Hammarberg states that Turkey’s terrorism laws are so wide that they criminalise even making comments supporting the aims of an outlawed organisation or participating in a demonstration which is also supported by an illegal organisation. So campaigning, demonstrating or declaring support for mother tongue education in schools or free university education or Kurdish autonomy becomes ‘terrorism’ as these are political views which illegal organisations advance.

So, in the last hearing of the trial of the 205 BDP members, the prosecutor accused defence lawyers of making propaganda for terrorist organisations in their defence speeches for their clients. He indicated that that he would look at the transcripts of the trial to assess whether the lawyers should be charged with terrorism.

Hammarberg also notes that in the Turkish justice system police arrest before there is an investigation and charges. Few detainees get bail. This leads to very long periods in prison on remand to allow the prosecution and police to gather the evidence and write the long indictments. For example, the journalist’s trial is based on an indictment of over 800 pages which has to be read out in court. The majority of the accused journalists have been detained for nearly one year.

In relation to the trial procedure itself, Hammarberg voices concern that defence lawyers are frequently refused sight of the evidence before the trial. This makes challenges to long pre-trial detention almost impossible.

He notes also that the right of cross examination is rarely permitted in Turkish courts and that the testimony of expert witnesses is often read out in court without the expert being present and available for cross examination by defence lawyers. This is also the case with ‘secret witnesses’ who are not named, not present and not subject to cross-examination by defence lawyers. There is, in his view, no ‘equality of arms’ in the court procedure.

He notes also that human rights law and the case-law of the European Court of Human Rights are not included as subjects within the entrance examinations for the profession of judge or prosecutor. He is critical of the traditional ‘statist’ view of the judiciary which appears to regard the protection of the state as more important than the human rights of those who appear before it. He says:

“One of the major factors hampering progress seems to have been the established attitudes and practices followed by judges and prosecutors at different levels giving precedence to the protection of the state over the protection of human rights.”

Will Zerya be visiting her dad behind a security glass window in a high security prison for half an hour each week for years to come, or will she have her father back to take care of her as she takes her first steps in life? Will Turkey continue to follow the authoritarian traditions of Atatürk and the 1980 coup d’etat or will it reach a negotiated settlement with Kurds and overhaul its defective justice system?

Tim Baster and Isabelle Merminod

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This post was written by Tim Baster and Isabelle Merminod