The legal status of Abdullah Öcalan, who was brought to Turkey on 16 February 1999, keeps its uncertainty in different aspects such as: a)the place where he is being held, b ) access to the lawyer and his family members, c)his legal status with regard to the place of arrest, d) judiciary assurances.
İmrali Island where Abdullah Öcalan is being kept, has been announced as forbidden zone by the decision of the Cabinet, and approach distances to the Island from air, sea and land were declared. Afterwards, a communique by the National Defence Ministry which was published in the Official Newspaper on 27 February 1999, has proclaimed the İmrali Island as no-entry military zone.
A Crisis Management Centre Regulation was published in the Official Newspaper on 9 January 1999 and put into force. According to this Regulation, Crisis Management Center Office was opened in Bursa under the presidency of the governor and on the same day a connected communication office in Mudanya was opened. Within this context, anyone who wants to go to İmrali Island should be allowed by the Crisis Management Centre to go and those who get permission will go to the Island through the office in Mudanya. By which means will those who receive permission will go to the Island? And at what times on which days will they be able to travel? This is uncertain. No such arrangement has been made.
According to the Law on Criminal Procedures No: 1412, an arrested accused can have access to his lawyers and be in contact with him/her any time he wants. Meeting one‘s legal counsel does not require any permission of any official institutions or any law-enforcement officials such as judge, prosecutor, governor, and also authorities from military and/or police organizations. No official position is authorized to give such permission. Contacts of the accused and the lawyer are a natural right. The only exception is that during the period until indictment preparation is completed, a judge will be present in such contacts.
There has been a court action brought against Abdullah Öcalan by the Ankara State Security Court No: 2. the arrest decision taken by the Ankara SSC in his absence has been repeated in his face. The date of the trial is 24 March 1999. Therefore, the exceptional implementation of the Law on Criminal Procedures cannot be practiced for Öcalan. A judge and some other officials cannot be present while having access to his lawyers. The SSC prosecutors, who are responsible to prepare the additional indictment, say that they would prepare the indictment within 45-50 days. In case that the presence of a judge while he meets his legal counsel and recording of the statements of lawyers and inmates continue, this practice will become a common rule and that therefore defense statements will be prepared in a condition which is limited by the permission. For example, for the reason that all access of the lawyers to their client will be done by the present of a judge and by the permission, the Court and the prosecutor will be aware on how the defense will be carried out and on the context of the defense statement.
Since Öcalan is being held in a place which its legal status is not determined and since the lawyers will have to go to the no-entry Military Zone, lawyers who want to meet Abdullah Öcalan will have to get permission from the governmental authorities. Thus, an authorization which is not regulated by the law will be used by governmental agents. For instance, when a lawyer wants to go to İmrali Island he/she will have to get permission from the Governor of Bursa province. In fact, lawyers access to their clients is an act, related to the judiciary process. No one can accept that governor or any other officials to get involved with this process. According to the statements of the governor of Bursa, appeared in mass media, the governor, himself, cannot use his authority; he has to ask for written permission received from the Court in Ankara. Authorization confusion have been created, the duty of defense has become a subject to permission. The Court or the governmental bodies can make intervention to those who will defense the accused and can decide who will defense him. An opportunity of any lawyers who wants to take the responsibility of defending Abdullah Öcalan and the opportunity to go to İmrali island are being lifted by these unlawful and arbitrary practices.
There are also some other indications which can be regarded as restrictions to the right to defense. Governmental authorities provide political party allies‘ to gather and up their hands with wolf sign and also to incite people. This creates lynch scenes against lawyers who take responsibility to defense Öcalan. Views on TVs appear along with the racist fascist circles symbols. However, the governor of Bursa province regards these views as natural reflection of the people. It is clear that the defense party is under pressure and subject to threat.
It has also not been stated when and how Öcalan’s lawyers and family could meet him. It has not been clarified that how a notary could go to the İmrali Island (who will allocate for the notary a ship to go the Island) and how the notary could arrange power of attorney. Any arrangement on these matters has not been made by the governmental authorities.
İmrali Island where Abdullah Öcalan is being held is announced as forbidden zone. But the place, where he is being kept, is not determined as either prison, hospital or an interrogation place. According to the Turkish laws, prisoners can be held in two places: a) in prisons, b) in hospitals. A place where a person is being held must be announced by the Justice Ministry as prison and it must have its director and other necessary personnel, a prosecutor responsible for that place, and also a chief prosecutor. Justice Ministry has not announced anywhere in İmrali Island as the prison and other requirements have not been provided. But in terms of legal status, Abdullah Öcalan is arrested. Therefore, he should have the rights recognized to all prisoners and should enjoy these rights. It becomes clear (this is understood by the statements of the medical military doctors statements who went to the Island and examined him and also by the records of the judge) that Abdullah Öcalan is not being held in a prison, is under the supervision of officials from the General Staff and is permanently being interrogated by them. In this case, Öcalan’s legal status is in contradiction with his de facto situation. This situation should immediately be changed. Within the framework of the principal of equality of the Turkish Constitution and international standards, Öcalan should be held in a legally determined place in accordance with the above mentioned standards.
It is not clear where the hearing (envisaged to be held on 24 March 1999) will be heard and who (either as defenders of each two parties or as audiences) will be able to attend the hearing. It is also possible for the SSC delegation to take a sudden decision and to go to the İmrali Island and hold the hearing there. According to Öcalan‘s lawyer‘s observations, he has been isolated, has not been allowed to have newspapers, magazines, books etc. and has not received the indictment and also has no paper to write his defense statement to the Court. Under these circumstances it is not possible to say that he has been facilitated necessary conditions for writing his statement.
The Human Rights Association (HRA) issued a press release on 19 February 1999 and expressed its concerns on the right to avoid torture, right to individual freedom and safety, right to fair trial and death penalty. HRA has also tried to take the attention of the authorities and to inform the public on the judiciary practices which has been experienced for the last 10 days, in addition to the above mentioned problematic matters.
Hüsnü Öndül
Secretary General