Current Situation of Human Rights Defenders in Turkey
08.02.2011
The Vice-President of IHD Headquarters Office and Chair of Diyarbakır Branch, Lawyer Muharrem Erbey and board members of Diyarbakır Branch of IHD, Roza Erdede and Arslan Özdemir are being remanded under the file no 2010/444 of the 6. Special Competent and Incumbent Heavy Criminal Court of Diyarbakır since 14 April 2009. Erbey and Özdemir are in Diyarbakır D Type Prison and Erdede is in Diyarbakir E Type Prison at the moment.
This case has been launched against 152 Kurdish politicians, ex-mayors, mayors who were elected during local elections of 29 March 2009, board members of NGOs, lawyers, human rights defenders.
In the formal criminal charge of the public prosecutor who launched the case, the clients‟ all professional works and activities relating to defending human rights were showed as “illegal activities”. Our friends are accused by being member of “illegal armed organization” and making “illegal demonstrations”.
The IHD is a human rights organization which aims to advance culture and awareness of human rights in Turkey since its establishment in 1986. Still, it is the biggest and the most widespread human rights organization in Turkey. The IHD is also one of the locomotive powers within the Turkey human rights movement.
Since 1994, the IHD prepares regularly annual reports and balance sheets of human rights violations of Turkey. Such annual reports and balance sheets are showed reference by the entire world. The IHD is in contact with international organizations such as initially UN, European Commission and EU and countries which prepare reports on human rights issues which are important elements to design foreign policies. The IHD also prepares special reports on specific human rights violations and presents research and investigation reports about various communal and social events.
All the activities of the IHD are aimed to eradicate problems of democracy and human rights in Turkey in critical means. Thus, the State bureaucracy and governments install illegal harassments towards the IHD board members and members by the judiciary. In this light, I would like to state that this fact is the main reason constituting that our colleagues are under arrestment.
The UN published a declaration regarding all obstacles faced by human rights defenders all over the world. According to this declaration, the UN Human Rights Commission admitted and declared this declaration in the meeting dated 3 April 1998 in regard to responsibilities of civil society organizations, groups and individual in defending and advancing internationally recognized human rights and fundamental freedoms. In order to implement this declaration in Turkey, the Private Secretariat of the Ministry of Internal Affairs issued a circular letter numbered 2004/139. Yet, in this trial, it was not followed according to the sanctions of this circular letter. Rather than works of our friends as human rights defenders must not be prevented by the legal enforcement, it is intended to declare such works as illegal.
Human rights are international. So, no matter where it is violated, the world needs to deal with it. Considering the fact that these prosecuted people are human rights defenders, this trial must be monitored by the entire world showing necessary opposition to the public.
The Fact of Special Competent and Incumbent Heavy Criminal Courts in Turkey
The civil jurisdiction in Turkey is divided into two parts caused by the existence of special competent and incumbent heavy criminal courts and public prosecutors. Such special jurisdiction types must not exist in a democratic state of law. Such special jurisdiction systems are used often to oppress civil society organizations which do not „behave‟ in accordance with official state attitudes. It is seemed in the official reports of the Grand National Assembly of Turkey (TBMM) that Turkey abolished the State Security Courts (DGM) in 2004 with the aim to regulate the jurisdiction system of Turkey in accordance with the European measures as response to expectations stated in EU Accession Partnership Document in 2003 and the Progress Report in 2003. Yet, the AKP government totally forgot about all commitments taken as regard to the decision starting the process of EU full membership in the Brussels Submit on 17 December 2004 through replacing old DGM system with a new CMK system. Moreover, in the Constitution the Articles 37 and 38 state that it must not establish special competent authorities of jurisdiction and the natural judge principle is admitted.
The existence of special competent and incumbent Heavy Criminal Courts and public prosecutors are against the Constitution and international law. There are lots of heavy criticisms on style of the works of such courts. For example, in the recommendation part of the Erzurum – Erzincan survey report dated 2 March 2010 prepared by the Democratic Jurisdiction Association, it is stated that „….immediately the Special Competent and Incumbent Heavy Criminal Courts must be abolished because the State itself creates such special jurisdiction against its own „enemies‟, which becomes threat towards juridical equality of the nationals before the courts. We should also look at the practice/implementation of jurisdiction of such courts. According to the official data of the Ministry of Justice, the numbers of perpetrators and trials opened under the Anti-Terror Law No 3713 under such courts are sincerely meaningful. By end of 2002, 472 trials were opened and 975 people are being tried under these courts during that year. By end of 2008, the number of the trials opened reached to 2,754 and the number of people tried in such courts increased to 6,851. The rate of increase is 702%.
Illegalities / lawlessness Occurred During The Investigation Process in 6. Special Competent and Incumbent Heavy Criminal Court in Diyarbakır
Total number of prosecuted people in this trial is 152, 103 of them are under arrested (in the prison). Among people who are under arrested, there are mayors, ex-mayors, lawyers, human rights defenders and board members of DTP and BDP.
1- When we look at the official criminal charge, the prosecutor decided to determine, to wiretap and to record communication along with determining signal detections of communication tools under article 135 of the Criminal Procedure Law upon request made by the Diyarbakır Security Directorate stating that they had information against the suspected people. That is contrary to the article 135 of CPL states that; „determination of communication can be done (wiretapping) if there is a strong suspicion of committing crime and in case of impossibility to find proof for the crime‟. Such decision on the telephone tapping was taken unlawfully. It was aimed to present the evidence directly over the perpetrators.
2- During the process of the investigation, it is based on „Statements of Secret Witness‟ which were not taken due the process of law. Such statements must be recorded during investigation of secret witnesses by the judge although accepting reasonable justification of keeping their identities in secret according to the article 58 of the Criminal Procedure Law.
Yet, in this trial all the statements of secret witnesses were recorded by the policemen. According to the article 58 of Criminal Procedure Law, this is an unlawful procedure. The
police officers recorded a script. It found secret witnesses suitable with this script. That is all the case.
3- All the search and seizure procedures within this case are almost maintained not due the process of law. It needs to state that the decision of the judge to search the office of the Diyarbakır Branch of IHD was clearly ordered. When a discussion happened during search of the room of Muharrem Erbey, immediately the public prosecutor who came to the Diyarbakır Branch of IHD issued a legal decision to search the entire bureau of the IHD office. This showed us how the investigation is being maintained arbitrarily. Just regarding the Chair of the Branch is being under an investigation searching the entire bureau of a branch of the Human Rights Association to where tens of people apply every day and confiscating all the documents by putting them into files are totally law scandals. Yet, Muharrem Erbey is being charged by several documents that were confiscated during that investigation and are all irrelevant to this trial.
4- This trial also was ordered to be launced under the 6. Heavy Criminal Court. There are three courts which carry on such cases in Diyarbakır. The public prosecutor sent this case file to the 6. Heavy Criminal Court by justifying the existence of a case related to one person. Due to process of the law, this trial must have been sent to any special competent and incumbent heavy criminal court. A trial persecuting 152 people cannot be sent to another court just because one trial related to one person is still continuing. This fact shows us that this judgment is not being maintained according to even minimum standard rules.
5- The official criminal charge was delivered to the Court on 09 June 2010. It contains 7,578 pages with addition of 376 files; approximately total page number is 130.000 pages. The 6. Heavy Criminal Court admitted the official criminal charge on 18 June 2010. So, the court read 7,578 pages and examines 130,000 pages added within 9 days. That is totally impossible. During the process of opening the trial, the official criminal charge must have been denied according to article 175 of Criminal Procedure Law. Because, this official criminal charge was not prepared in accordance with the equality of arms principles and occupied it with too many details to make the defendant sides implead.
6- The preliminary investigation was being maintained “secretly” by the decision of Public Prosecutor Office until the day of acceptance of the official criminal charge by the Court number 6 on 18 June 2010. This also violates the right to defense. The investigation started in 2007. The first arrestments occurred in April 2009. One year after the period of the investigation with arrest, the trial was opened. During this period, the suspected people could not demand for release because the investigation was secret that caused impossibility
of examining the evidences. All it is an arbitrary, unlawful and false imprisonment.
7- In the official criminal charge, none of the suspects are accused of committing to make armed actions or actions of violence. Despite of non-existence of action or means of violence and lack of evidences in this trial, the perpetrators are charged with being member of an illegal armed organization. All the actions of all perpetrators must have been evaluated within the frame of the freedoms of expression and association and right to demonstration and meeting. Thus, this trial should have not been opened or have been opened under the Criminal Court of First Instance where all the trials related to petty crimes are tried.
Concrete Accusations Related to Our Colleagues
1-MUHARREM ERBEY
Muharrem Erbey is Vice-President of the Human Rights Association and holding the Chair of the IHD Diyarbakır Branch. In the official criminal charge, he has been charged with such crimes:
– Obtaining funding in terms of project implementation in behalf of the IHD from the EU member statea for the “illegal organization” as financial source.
– Insulting the Turkish State while making speeches in front of the group in the parliaments of Sweden, Belgium and England.
– Participating to the Constitution studies made in the Democratic Society Congress.
– Advocating Osman Baydemir who is Mayor of Metropolitan Municipality of Diyarbakır and meeting often with him.
– Following the trials voluntarily, giving free legal service to the victims of serious human rights violations.
– Making speeches at the ROJ TV.
– Attending to several press releases and demonstrations that were humiliating security forces through encouraging the illegal organization and provoking the public opinion.
All these accusations are grounded on the statements of “secret witnesses”, wiretappings, some documents that were acquired during the searches at the IHD Diyarbakır Branch, his house and bureau. As is seen, all the events and facts that constitute bases of the accusations are just his professional works and those related to defending the human rights. There are no concrete and convincing evidences about being member to illegal organization. Yet, Muharrem Erbey is a lawyer. Judges and public prosecutors know him well. He helped in many cases to find out the truth to the Chief Public Prosecutor‟s Office. Remanding such person with arrest makes no sense.
2- ARSLAN ÖZDEMİR
Arslan Özdemir is a board member of the Diyarbakır Branch of IHD. In the official criminal charge, he is charged with giving several trainings and meetings relating to the illegal organization at the Local Municipalities Training Center opened by the Association of Southern Eastern Anatolian Municipalities (GABB). These accusations are grounded on the statements of secret witnesses, wiretappings, some documents that were acquired during the searches at the IHD Diyarbakır Branch, his house and bureau. Showing Sociologist Arslan Özdemir‟s training works as illegal cannot be acceptable.
3- ROZA ERDEDE
Roza Erdede is a board member of the Diyarbakır Branch of IHD. In the official criminal charge, she is charged with giving trainings to the illegal organization and directing Muharrem Erbey to find funding and financial sources for the illegal organization from the consulates. These accusations are grounded on the statements of secret witnesses, wiretappings, some music CDs that were acquired during the searches at the IHD Diyarbakır Branch, his house and bureau. As a board member of the Branch and speaking in English, she was participating to the works of the project. Being charged grounded on the music CDs is totally scandal.
The Hearings of the Trial
The first hearing was held on 18 October 2010. The eighteenth hearing was held on 28 January 2011. The perpetrators demanded to make their defenses in Kurdish stating that most of them are Kurdish politicians charging with their politician identities. The Court did not accept these demands. It recorded that they were speaking in „an unknown language‟ in the first trials records when the perpetrators spoke in Kurdish. After the complaints of the lawyers, it was recorded as “we assume that it is Kurdish‟ in later hearings. The Court mocked with the Kurdish language by not recognizing it officially. This event caused all the perpetrators tend to speak in Kurdish to protect their mother language.
By ending the eighteenth hearing, just the identities were determined and still it did not listened to the defenses. They could not plead because the Court prevented them to plead in Kurdish. In this hearing, the perpetrators decided not to come to the hearings in order to protest against the illegalities happened in the Court. After deciding such decision, the lawyers also decided not to attend to the hearings. In the nineteenth hearings of the trials on 1st of February 2011, the perpetrators were not released and decided to hold the next hearing on 19 April 2011.
Why the Perpetrators Are Not Released?
In the beginning of the investigation, the fact that decision of the perpetrators making their defenses in Kurdish according to the article 202 of CMK was not accepted by the Court made the judgment locked and prolonged. So, still the defenses have not been listened. This demand of the perpetrators is legal according to the right to speak in mother tongue. Moreover, the Article 39 of the Lausanne Agreement allows speaking in mother tongue.
Not listening to the defenses of the perpetrators means missing chance to make evaluation of detention situations of the perpetrators before the Court. As stated above, the evidences against the perpetrators were collected not due the process of the CPL. So, none of these evidences should not have been taken before the Court. So, there are no enough evidences to charge our friends with a crime. According to the principles of the Criminal Procedure Law, if there are suspicions towards the perpetrator, such suspicion is evaluated in favor of the perpetrator. It is called „Presumption of Innocence‟. In this trial, this principle was totally ignored. The court practices of the ECHR related to the detention is not implemented insistently. This trial was taken to the ECHR because of false imprisonment. The pursuance of the application no 34922/10 titled „Turgay and others vs. Turkey‟ is still continuing. At the end of the trial, it is highly likely to release our friends because of nonexistence of illegal activities except the human rights and professional activities. Element of the crime was not constituted. Additionally, there is no spoliation made by our friends. All the evidence acquired from the searches and records of wiretappings are collected. Our friends have constant addresses and are professionals. They have no position to escape. In spite of all these facts, not releasing them is totally a law scandal. In this trial, the law was destroyed. The jurisdiction became political and behaves in accordance with the state political opinion. The government takes human rights defenders along with the Kurdish politicians, so to say, as hostages.
If there are illegalities happened before the court in such country which is a member of the UN and Chair of the Council of Europe, the world is supposed to question it. The human rights are international. The international public opinion cannot turn their blind eye to violations of right to personal security and freedom, right to fair trial, freedoms of expression and association and non-recognition of the Kurdish language. Necessary reactions must be shown immediately and necessary initiatives must be taken to release our friends.
Öztürk Türkdoğan
President of the IHD