Use of the Kurdish language in court

In connection with several trials against alleged members of the Union of Kurdish Communities/Turkey Assembly (Koma Ciwaken Kurdistan/Türkiye Meclisi KCK/TMKCK Par lament Turkey ) the use of the Kurdish language in Turkish courts has become an issue under discussion, in particular since the main trial started in Diyarbakir on 18 October 2010. The DTFDemocratic Turkey Forum has taken are closer look into the subject.

International and national provisions

The defence in Diyarbakir and other places has argued that the Treaty and in particular the Convention on Human Rights provided that defendants are entitled to use their mother tongue in their defence.

Article 39 of the Lausanne Treaty provides that

No restrictions shall be imposed on the free use by any Turkish national of any language in private intercourse, in commerce, religion, in the press, or in publications of any kind or at public meetings.

Notwithstanding the existence of the official language, adequate facilities shall be given to Turkish nationals of non-Turkish speech for the oral use of their own language before the Courts.

Article 6 of the European Convention on Human Rights on the right to a fair trial includes the following right(s)

Everyone charged with a criminal offence has the following minimum rights:

to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

...

to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

The Turkish Code of Criminal Procedures (Ceza Muhakemesi Kanunu CMK) as of 1 June 2005 provides in Article 202

(1) if the defendant or victim cannot explain him/herself in Turkish the important points will be translated by an interpreter appointed by the court

(2)...

(3) the provisions of this Article will be applied to suspects, victims or witnesses during the investigation. At this stage the interpreter will be appointed by the judge or the prosecutor.

In the Turkey 2009 Progress Report of 14 October 2010 the European Commission stated: "No measures have been taken to facilitate access to public services for non-speakers of Turkish. While interpretation is possible under the current legislation, it is not consistently applied in practice. Using the Kurdish language in prisons may be problematic, with the situation varying between prison administrations."

The 2005 report of the European Commission expressed concern on the issue by saying: "The new Code of Criminal Procedure provides that defendants and witnesses who cannot speak the Turkish language are to be provided with an interpreter free of charge. However, concerns have been expressed that as there are currently no interpreters trained in legal interpretation between Turkish and other languages used in Turkey, there may be difficulties in ensuring adequate standards of accuracy. Measures should be adopted to address this problem."

Judgements by the ECHR

The European Court of Human Rights (ECHR) has passed some judgements on the allegation that no (adequate) interpreter was present at important stages of the criminal procedures. One such case is that of Amer v. Turkey (Application No: 25720/02) The important parts of the judgement reads:

77. The Court reiterates at the outset that the right guaranteed by Article 6 § 3 (e) of the Convention to the free assistance of an interpreter is not only applicable when making oral statements at hearings in the course of a trial, but also to documentary material and the pre-trial proceedings. This means that, to ensure a fair trial, an accused who cannot understand or speak the language used in court has the right to the free assistance of an interpreter for the translation or interpretation of all those documents or statements in the criminal proceedings which it is necessary for him or her in order to understand or to have rendered into the court’s language (see Luedicke, Belkacem and Koç v. Germany, judgment of 28 November 1978, Series A no. 29, § 48).

82. The Court notes that the applicant is not a native speaker of the Turkish language. However, as submitted by the Government and as accepted by the applicant, he did speak some Turkish. Nevertheless, it is equally important to note the applicant’s undisputed claim that he was unable to read Turkish texts, especially if they were not typed (see paragraphs 41-42 above). In this connection the Court finds that the handwritten statements in question are indeed difficult to decipher, even by native Turkish speakers.

83. In the Court’s opinion, the verification of the applicant’s need for interpretation facilities at the time of his questioning by the police should have been a matter for the domestic courts to adequately examine with a view to reassuring themselves that the absence of an interpreter in police custody would not have prejudiced the applicant’s right to a fair trial (see, mutatis mutandis, Cuscani v. the United Kingdom, no. 32771/96, § 38, 24 September 2002). To that end, sufficient indication had been given to the domestic courts by the applicant and his lawyers as to his inability to read Turkish texts. In this connection it must also be noted that the applicant, when assisted by an interpreter on 22 June 2001, stated that this was the first time he had heard the accusations against him.

84. Having regard to the above considerations, the Court concludes that there has been a violation of Article 6 § 1 of the Convention taken in conjunction with Article 6 § 3 (e).

In the case of Özden v. Turkey (No. 42141/98) the Court held unanimously that there had been a violation of Article 6 § 1 on account of the State Security Court’s lack of independence and impartiality. Having regard to its findings of a violation under this head, the Court considered that it was not necessary to carry out a separate examination of the applicant’s allegations of an infringement of his defence rights (excessive length and no assistance of an interpreter or lawyer).

In the case of ÇİÇEK v. TURKEY (Application No. 25704/94) the applicant invoked Article 14 of the Convention in conjunction with Article 13 of the Convention in that she was denied effective access to judicial process on account of the failure of the Turkish authorities to make adequate provision for the use of Kurdish language before gendarmes, prosecutors and other officials exercising judicial functions. The Government maintained that judicial authorities must use the services of an interpreter whenever an accused or a complainant cannot speak the Turkish language.

The Court observed that the applicant never maintained before the Court that she had asked the assistance of a translator and that this request had been rejected by the Turkish authorities. Although it is clear that the applicant cannot speak Turkish, her daughter Feride Çiçek, who had filed petitions with the Diyarbakır Public Prosecutor had the assistance of a lawyer from the Diyarbakır Human Rights Association to draft these petitions.

In the light of the foregoing, the Court considered the applicant’s allegations to be unsubstantiated. Accordingly, there has been no violation of the Convention under this head of complaint.

Use of the Kurdish language in other trials

The following examples were taken from daily or annual reports of the Human Rights Foundation of Turkey.

The trial launched against Fatma Tokmak (tried with the demand of a death penalty) Raif Damar, Ali Çöker, Vezir Yasar, Abdülcabbar Evin, Seyhmus Yiltas (repentant) on the accusations of "being PKKKurdish Workers' Party members" continued at İstanbul State Security Court (SSCState Security Court ) on 14 January 2000. In the hearing, Fatma Tokmak, who did not speak Turkish, gave her testimony in Kurdish with the help of the interpreter Mülazım Özcan from the Kurdish Institute. In her testimony, Fatma Tokmak repeated that beside herself her son Azat Tokmak (2,5 years old) had also been tortured in detention. When the President Judge asked "How come did you give your testimony in the Security Directorate, if you don’t speak Turkish?", Fatma Tokmak answered, "There was no interpreter there. I spoke Kurdish. However they said, speak, we do understand."

On 8 November 2000 the 9th Chamber of the Court of Cassation conducted a hearing on the appeal case of Naciye Sevuk (20), Ali Adir (56), Gullu Celik (63), Yemis Altintas (63), Emine Kiyancicek (76) and Fatma Sevuk (77) who had been convicted by Malatya SSC for "helping and sheltering PKK members" and sentenced to 3 years, 9 months’ imprisonment. Gullu Celik, Fatma Sevuk, Emine Kiyancicek and Yemis Altintas testified with the help of an interpreter for Kurdish and said that they had been taken to the gendarmerie station after an incident in their settlement and had put their finger-prints under a prepared statement because they did not know Turkish and could not read or write. The Court of Cassation adjourned the session for the announcement of the verdict.

On 28 June 2001 the trial against 15 leading members of the radical Islam organization Hezbollah including Edip Gümüs and Cemal Tutar continued at Diyarbakir State Security Court (SSC). The defendant Sehmuz Kinay testified with the help of an interpreter and rejected the charges.

On 6 May 2002 İstanbul State Security Court (SSC) No. 6 started to hear the case of 92 defendants, on trial for having forwarded petitions for education in Kurdish to the director for national education in Ümraniye, Bağcılar and Küçükçekmece districts. 65 defendants were present. They pleaded not guilty and demanded their release and acquittal. The court did not lift the arrest warrants and adjourned the hearing to 5 August.

On that day some of the defendants testified via an interpreter for Kurdish. They said that they had signed petitions as individuals, because they wanted their children to learn Kurdish. They rejected charges of connection to any party or organization. Defence lawyer Hasip Kaplan pointed at the strange situation that the defendants needed an interpreter, but were charged because they asked for Kurdish lessons. He added that the latest changes in legislation allowed for education in the mother tongue and asked to drop the case. The Court adjourned the hearing, but ordered the release of Ali Canbaba, Ali Dinçer, Mehmet Oran, Mehmet Meriç, Abdullah Akıncı and Mehmet Salih Anğı, who had been in pre-trial detention since 20 January.

On 22 April 2002 Istanbul SSC No. 3 started to hear the case of 38 defendants, charged in connection with petitions they had presented to the directors for national education in Kadıköy, Esenler and Bağcılar districts. Espender Demir from the cleaning staff at court interpreted the testimonies of those defendants, who did not know sufficient Turkish. The court ordered the release of Deniz Topçu and lifted the arrest warrants against Meliha Can, Şükriye Tümüroğlu, Hanım Gülün and Halime Günana and adjourned the hearing to 21 June.

Both trials did not conclude in 2002.

On 22 March 2002 Adana SSC started to hear the case of 81 defendants, 40 of them in pre-trial detention and 10 of them arrested in absentia, who had signed petitions on education in Kurdish addressed to the director for national education in Seyhan on 2 January. During the hearing some defendants testified in Kurdish making use of an interpreter. The court decided to release 21 defendants. The charges were changed from "membership of an illegal organization" (Article 168 TPCTurkish Penal Code ) to "support for an illegal organization" (Article 169 TPC). The trial did not conclude in 2002.

On 11 September 2002 Van SSC No. 2 heard the case of 6 members of the Association of Help for Prisoners’ Relatives (THYY-DER) in Van. Behice Bor, Yasin Orhan, Remzi Özer, Aziz Özer, Hakkı Ersönmez and Gülistan Şen had been arrested on 17 July on charges of supporting the PKK. Behice Bor (37 and mother of 5 children) testified with the help of the doorkeeper as interpreter. She complained to have been tortured at Van Police HQ. The police had forced her to sign a paper, even though she did not know Turkish. The other defendants also complained about torture. The court ordered the release of Behice Bor and Yasin Orhan and adjourned the hearing to a later date.

In March 2005 the public prosecutor in Ankara indicted Abdülmelik Fırat, President of the Party of Rights and Freedoms (Hak-Par) and 12 executives of Hak-Par in connection with the first congress of the party. The indictment stated that invitations in Kurdish had been sent to the State President, the Presidency of parliament and the Prime Minister. Reşit Deli had held the opening speech in Kurdish even after he had been warned by the commissioner of the government. Further speeches had also been held in Kurdish and, although the speeches had contained heavy criticism, there had been no call for hatred or violence.

The indictment asked for sentences according to the Article 81/c and 117 of the Law on Political Parties that prohibits the use of languages apart from the Turkish language. On 25 May Ankara Penal Court No. 3 started to hear the case. Abdülmelik Fırat and another nine defendants testified in Kurdish. The lawyer Sabahattin Korkmaz translated their statement into Turkish. Korkmaz was accepted as interpreter since the statement contained legal expressions. The lawyer resigned from his post as defence lawyer and made an oath for correct interpreting. Another hearing was held on 7 December. The defence asked the court to forward Article 81 of the Law on Political Parties to the Constitutional Court since it was against the Constitution. The demand was rejected and the hearing was adjourned to 2006.

On 30 March 2007 Istanbul Heavy Penal Court No 14 started to hear the case against Mehdi Tanrikulu, owner of Tevn Publishing House, in connection with the book "Kapitalizmin Emperyalist Sürecinde Kürt Özgürlük Hareketi ve PKK'nin Rolü" (Kurdish Liberation Movement in the Imperialist Era of Capitalism and the Role of the PKK)" written by Dr. Ergun Sönmez who lives abroad. Since Tanrikulu wanted to testify in Kurdish the court decided to ask for an interpreter from the Security Directorate and adjourned the hearing to 11 July. The indictment wants Tanrikulu to be sentenced according to Articles 7/2 and 6/2 of the Law on Fight against Terrorism.