Human rights defenders on trial in Diyarbakir

The Human Rights Joint Platform (İnsan Hakları Ortak Platformu IHOP) released the KCKUnion of Communities in Kurdistan (Union of Kurdistan Communities) Trial Monitoring Report at a press conference in Ankara on 15 April 2011. The report was prepared within the framework of IHOP's studies focusing on the rule of law.

Lawyers Hüsnü Öndül, Murat Dinçer and Kerem Dikmen examined the KCK case and prosecution on the basis of international human rights law, including the European Convention on Human Rights, associated additional protocols, and decisions adopted by the European Court of Human Rights.

You can download the complete report in pdf (255kB) from the website of IHOP.

Background

Several members of the Peace and Democracy Party (BDPPeace and Democracy Party ), along with mayors, municipal officers, executive members of trade unions and several other associations, were detained in operations starting in April 2009. Many of them were arrested and put on trail. For the time being, there are 151 defendants on trial and 103 of them are held in pre-trial detention. Most of them are mayors elected to local government as DTP/BDP candidates, former mayors from the DTP, local government personnel, and leaders and members of non-governmental organizations. All are residents of the region, well known for their social activities. Among the defendants are Muharrem Erbey, a lawyer and Deputy Chairperson of the Human Rights Association (IHD), and executive members of the Diyarbakir Branch of IHD, Roza Erdede and Aslan Özdemir.

Executive members of the Human Rights Association Muharrem Erbey, Roza Erdede and Aslan Özdemir have been subjected to investigations mainly because of their work as human rights defenders. They were subsequently arrested in the course of an operation that began in April 2009. This practice, which can be called “judicial pressure” on human rights defenders, is a form of political persecution that is totally unacceptable in a democratic society. Many of the defenders who appeared in court are persons who work within legal and legitimate platforms such as municipalities, associations, trade unions and political parties. No one should be subjected to investigation, detention or arrest because of the work they perform at legal, legitimate and peaceful organizations, nor should these activities be brought against them as if they were crimes. Such practices show a lack of judicial security and damage the principle of the rule of law.

The principle of the rule of law, which is one of the key principles for the protection and promotion of human rights and liberties, guarantees effective monitoring and protection of personal rights and liberties against intervention by public officials. This protection and oversight is the duty of the judiciary, which should be independent and impartial.

The Human Rights Joint Platform (IHOP) monitors the trial with respect to the right to “personal liberty and security” and the right to a “fair trial”.  In particular, IHOP monitors the proceedings against the human rights defenders Muharrem Erbey, Roza Erdede and Aslan Özdemir within the framework of the UN Declaration on Human Rights Defenders.

Human Rights Defenders

ROZA ERDEDE

Roza Erdede is a board member of the Diyarbakir Branch of Human Rights Association (IHD), and the ninetieth defendant in the indictment. In part 64 of the indictment, in pages 96 to 100 and 1 to 16 it is claimed that Roza Erdede is involved in organizational activities within the GABB (Union of South-eastern Anatolia Municipalities) together with evidence and statements presumed to support this claim. In part 64, page 96, it is stated that a secret witness code named "Daisy" has provided statements concerning Roza Erdede and it is also mentioned that there is a document demonstrating that Erdede was involved in training activities.

The indictment gives the following as evidence supporting the charge against Erdede: music files in a computer; telephone conversations with iHD branch chair Muharrem Erbey; telephone conversation between Reyhan Yalcindag, the former President of iHD, and Lawyer Muharrem Erbey about the detention of Roza Erdede, and other records of telephone conversations.

Roza Erdede refutes these allegations and has emphasized that her tasks in IHD and GABB have been project design and implementation of approved projects, including development of a project on "preventing domestic violence" for Kibele, which was supported by the Embassy of the Netherlands and is now completed; presentation of a project for preventing child abuse to the European Union, which passed the preliminary test for proposals; and completion of a project to transfer information and documents in the archives of IHD-Diyarbakir to an electronic form, again with the support of the Embassy of the Netherlands.

In her defence presented to the court under the title "My Defence", Erdede says," What I was trying to do was to develop and implement social projects on low socio-economic status and disadvantaged groups (the disabled, elderly and children). In this way, was trying to be an individual contributing to their society."

ARSLAN ÖZDEMiR

Arslan Ozdemir too is a board member of the Diyarbakir Branch of the Human Rights Association (IHD), and eighty-seventh defendant in the indictment. In part 63 of the indictment, in pages 94 to 100 and in part 65 (pages 1-16) it is claimed that Arslan Ozdemir works in the GABB as a training expert as assigned by the illegal organization and uses this post to sustain organizational relations and contacts. Evidence supporting this allegation includes the following: statements by two secret witnesses code named "Daisy" and "Lens"; participation in protest marches and press conferences; Kurdish music, videos and training notes found, all presumed to support the charges brought against Özdemir.

Arslan Özdemir rejects all these allegations, stating that he is a human rights defender acting as a board member of IHD Diyarbakir Branch. He says he is an educationist, having served as teacher and education expert in various educational institutions; working in the GABB Training Centre as a sociologist and education expert and conducting legitimate and legal education activities; as iHD board member and observer he took part in various outdoor meetings with his identity tag as can be seen clearly in photographs taken during these events.

Arslan Özdemir says he is called "Aslan Hoca" since "Hoca" is a term frequently used for teachers. He asserts that no inculpatory document or material was found when his residence was searched and it was no offence to keep some music cassettes as well as various writings and publications.

MUHARREM ERBEY

Muharrem Erbey is the Vice President of IHD and chair of the Association's Diyarbakir Branch, appearing as the 132nd suspect in the indictment. Charges relating to Erbey can be found on pages 74-100 in part 74 and pages 1-26 in part 75 of the indictment. According to these charges, Muharrem Erbey raised project funds from an EU member country only to channel these funds to the illegal organization; delivered speeches in parliamentary groups of such countries as Sweden, Belgium and Britain which denigrated Turkey; took part in constitution drafting work within the Democratic Society Congress; was in frequent contact with Diyarbakir Mayor Osman Baydemir as his lawyer; served as unpaid lawyer to defendants in trials concerning the organization; made statements on Roj TV; took part in various demonstrations and rallies to build up motivation and instigate people while demeaning the security forces and other official authorities, etc.

All these charges are based on the statements made by secret witnesses, on wire-taps and documents stated as having been obtained during searches conducted in the IHD office, and Erbey's home and office.

Erbey refuted all allegations regarding his organizational affiliation and stated that without committing any offence, he had always worked as a lawyer and human rights defender. In relation to Erbey, there was first a search in his room in the Diyarbakir Branch of the Human Rights Association (IHD) and a court decision for a search of other rooms at the association was instantly produced. Computers, CDs and cassettes and many documents found in the office were seized.

In interviews made with the leaders of the IHD for preparing the present report, it was stated that the seized materials had not been returned to the IHD since December 2009. Following this search, there was no criminal investigation concerning the Diyarbakir Branch of the Association. The IHD was not informed about any legal implication of the search conducted.

International rules

The UN Declaration on the Protection of Human Rights Defenders was adopted by the UN General Assembly on 9 December 1998. Article 1 of the declaration states that it is the right of each and every person to protect and exercise human rights. Article 5 is about the right to organize meetings at national or international level and to have contacts with various associations and persons, governmental or non-governmental organizations for protecting human rights. Article 12 underlines the obligation of States to protect human rights defenders.

The articles are as follows:

Article 1: Everyone has the right, individually and in association with others, to promote and to strive for the protection and realization of human rights and fundamental freedoms at the national and international levels.

Article 5: For the purpose of promoting and protecting human rights and fundamental freedoms, everyone has the right, individually and in association with others, at the national and international levels:

(a) To meet or assemble peacefully;

(b) To form, join and participate in non-governmental organizations, associations or groups;

(c) To communicate with non-governmental or intergovernmental organizations.

Article 12:

1. Everyone has the right, individually and in association with others, to participate in peaceful activities against violations of human rights and fundamental freedoms.

2. The State shall take all necessary measures to ensure the protection by the competent authorities of everyone, individually and in association with others, against any violence, threats, retaliation, de facto or de jure adverse discrimination, pressure or any other arbitrary action as a consequence of his or her legitimate exercise of the rights referred to in the present Declaration.

In this connection, everyone is entitled, individually and in association with others, to be protected effectively under national law in reacting against or opposing, through peaceful means, activities and acts, including those by omission, attributable to States that result in violations of human rights and fundamental freedoms, as well as acts of violence perpetrated by groups or individuals that affect the enjoyment of human rights and fundamental freedoms. The United Nations, European Council and European Union have adopted various resolutions to protect human rights defenders, established human rights mechanisms within and issued publications and directives.

In the Fact Sheet No.29 titled "Human Rights Defenders: Protecting the Right to Defend Human Rights it is stated that:

"Human rights defender" is a term used to describe people who, individually or with others, act to promote or protect human rights."

The UN Secretary-General designated a Special Representative for the Protection of Human Rights Defenders. Special Representative Hina Mani visited Turkey in September 2004 and prepared a report. The Council of the European Union adopted and declared the Guiding Principles in protecting human rights defenders on 14 June 2004. The European Union draws attention to the special position of human rights defenders in its progress reports concerning individual countries. The 2010 Progress Report for Turkey, for example, points to legal prosecution which human rights defenders are subjected to.

In its circular o. 139 (2004) titled "Guide for Human Rights Defenders", the Turkish Ministry of Interior too states that it attaches specific importance to the issue.

In these instruments shortly mentioned above, States declare that they recognize human rights defenders, respect their role in the protection and promotion of human rights and facilitate the work of human rights defenders. Having the activities of human rights defenders subject to criminal prosecution as the activities of illegal organizations is simply unacceptable under the national human rights instruments briefly mentioned above. Keeping human rights defenders under judicial pressure is one of the methods employed by authoritarian systems.

CONCLUSION

In Turkey and in other parts of the world, human rights organizations defend human rights and freedoms. Law requires predictability and openness. Safeguarding of law is a precondition for the rule of law. In this respect and in the context of the ongoing KCK case, consideration that working in legal organizations — i.e. municipalities, trade unions, associations and political parties — constitutes an "offence", and designating legal and peaceful press conferences, workshops and demonstrations as offences committed upon the instructions of illegal organizations, runs counter to the principle of the rule of law.

Moreover, designating as crimes fully legal and peaceful activities may pose a threat to freedoms of expression, association, peaceful gathering and demonstration which are all enshrined in international human rights documents. In the present case, there are aspects that may be problematic in the context of Article 11 in the European Convention on Human Rights. Criminalization of peaceful indoor or outdoor gatherings, prosecution of a specific political party and its local units and the arrest of many politically active figures are all points of deep concern in the context of freedom of association. It is worth noting that all these developments take place in the period leading to general elections scheduled for 12 June 2011. Criminalization of activities resulting from the exercise of rights and freedoms enshrined in international human rights instruments is an obstacle to the establishment and promotion of human rights and democratic standards.

It is a safeguard for people that procedural rules are observed in legal inquiries. And truth can be reached only by complying with these rules. Article 5 of the European Convention on Human Rights that provides for individual freedom and safety is to be respected by all authorities and organs. Freedom and safety of persons can be ensured only this way.

All law enforcement authorities should in the first place comply with the principles of protection of private and family life and privacy of communication as envisaged by Article 8 of the European Convention on Human Rights. The principle of the rule of law is expressed as follows by the European Court of Human Rights (EcHR) in its judgement on the case of Silver and others v United Kingdom (25 March 1983): "One of the principles underlying the Convention is the rule of law, which implies that an interference by the authorities with an individual's rights should be subject to effective control." It is the independent and impartial judiciary that is supposed to translate the principle of the rule of law into practice. The fact that personal communication and environments are placed under surveillance and conversations recorded for a period of three years suggests that interventions in personal liberty are not subject to any effective legal scrutiny and nobody is safe in this sense. Yet, procedural laws and legal scrutiny are crucial and legal safeguarding of liberties can be ensured only through an effective legal scrutiny.

With respect to rights and freedoms mentioned above, in the Diyarbakir KCK case there have been serious breaches of law by the investigating authorities and the judiciary. There are serious breaches, for example, in respect to the continuing confinement of defendants. A common feature of collective trials (with a large number of defendants) is the practice of arresting and remanding to prison suspects en masse. While there is need to assess the situation on the basis of each person concerned, there may be court rulings to keep all the accused in confinement on the basis of generalized and abstract reasons. Unfortunately, Turkey has yet to overcome this problem. Respect for human liberty unequivocally requires sound justification for the continuance of any state of confinement. In this respect, there is a need to fully observe the provisions of Article 5 of the European Convention.

It is absolutely unacceptable for human rights defenders to be subjected to criminal prosecution on allegations that their human rights activities have been carried out under instructions given by an illegal organization. Human rights abuses are not a matter to be regarded as a country's domestic issue. Thus, human rights defenders stand up against human rights violations in all parts of the world.

Given this, human rights defenders cannot be accused of informing foreigners about human rights problems in their country. Such accusations cannot be accepted. Human rights defenders are persons campaigning for the rights and freedoms of others and undertaking risks for that. Forcing human right defenders to work under the pressure of the police and judiciary runs counter to the UN Declaration on the Protection of Human Rights Defenders and the European Union Guiding Principles.

General findings

1. Human rights defence under threat of criminal investigation:

Rights defenders are of course not immune from prosecution and penalty and their status as human rights defenders cannot be taken as the sole indicator of their innocence. Rights defenders too may be involved in offences, but the investigation and prosecution of such offences cannot be used as a way of restricting the defence of human rights. However, examining the indictment in this specific case, it is observed that the prosecutor has viewed as an offence the activities and recorded communications of the chair and board members of the Diyarbakir Branch of Human Rights Association, which cannot be construed in any other terms but as normal associational activities, and a part of their mission as human rights defenders. This necessarily leads to the inference that defending human rights constitutes an offence and consequently that activities in the defence of human rights are threatened and termed criminal acts. This is a violation of the state’s national and international obligations to human rights defenders.

2. Humiliating treatment at the stage of interrogation:

Violations such as torture and ill-treatment were not mentioned during interviews conducted while preparing the present report. Nevertheless, lining up handcuffed suspects before security units during the first wave of detentions is considered as humiliating treatment.

3. Length of pre-trial detention violates the presumption of innocence:

Pre-trial prison detention is a precaution not a punishment. Since it deprives persons of their liberty, this is considered as the most serious measure available and should be resorted to only if alternative measures are not available. As all the evidence in this case has already been collected the prolongation of prison detention at this stage must be considered a breach. Furthermore, the argument that there is serious breach here is further supported by the fact that some defendants in the trial charged with the same offence on the basis of the same articles of the Penal Code are at liberty.

4. The accused cannot use their native language:

Many persons accused have stated that their own language is Kurdish and that they wish to defend themselves in that language. This request has been turned down by the court. The fact that the use of own language can be the subject of a request itself indicates that there is a breach of human rights here. The use of one’s own language is essential. The court’s refusal in this respect is a violation of a right.

5. No evidence in favour of the defendants can be collected:

The right of the accused to defend themselves has been restricted in this case. Procedural regulations do not provide that bringing an expert before the court to submit evidence requires authorization. Yet, the court did not allow Professor Baskin Oran, whom defence lawyers had invited to testify before the court, to submit the opinion that legal defence in own language is provided for by international conventions to which Turkey is a State Party. This situation means the violation of the principle pertaining to collecting ex culpatory evidence for the accused.

6. Freedom of expression violated:

Examining the indictment, it is found that even peaceful expressions are made the subject of criminal prosecution, which amounts to the violation of freedom of expression.

7. Rights granted by the state made subject to prosecution:

The right to petition the state, to peaceful assembly and demonstration, among other rights, are safeguarded by the state. However, in the KCK case the exercise of these rights is criminalized. This situation threatens the exercise of the right to demonstrate. Furthermore, many activists in the fields of women’s rights and environmental rights and their activities in the civil sphere face criminal investigation regardless of the content. A right is a gain where effective exercise is as important as formal entitlement. Making the forms of exercising these rights subject to judicial examination is tantamount to cancelling out the positive recognition of these rights. Investigation and prosecution of the members of women’s and environmental organizations just for their activities is considered as a violation of rights.

8. Privacy of communication under threat:

Interviews conducted suggest that the State failed to fulfil its negative and positive obligations in relation to the interception and recording of telephone conversations and other communications.