Written by Margaret Owen (pictured), International Trial Observer and Barrister
On Wednesday 12th December 2018, Solicitor-Advocate Ali Has, Thomas Phillips of Liverpool University, and myself arrive in Ankara to attend the sixth hearing of the case against Selahattin Demirtas, former co-chair of Turkey’s HDP (Peoples’ Democratic Party). Demirtas was arrested on 4th November 2016 together with co-chair Figen Yüksekdağ and seven other MPs. He has been in pre-trial detention at Edirne Prison since his arrest.
This trial is clearly of the utmost importance for the political future of Turkey, and is taking place amidst a backdrop of other significant developments that are creating extreme tensions and challenges, not just for the country but for the EU, and indeed the world. For example, last month the European Court of Human Rights (ECHR) ruled that Demirtas should be immediately released from his lengthy pre-trial detention, pending an appeal of his case. However President Erdogan declared that Turkey was not bound by this ruling, and claimed it was politically motivated.
The EU’s Foreign Affairs Representative, Federica Moghenni, declared that the ECHR does have jurisdiction in Turkey, since it is a Council of Europe member and therefore the ECHR is embedded in Turkey’s domestic law. The consensus from the EU Parliament, the Court and the Council of Europe is that Demirtas’ imprisonment was intended to keep him from competing in the Presidential election in which he was a candidate.
This case against Demirtas consists of 31 summary proceedings, merged together, each involving separate criminal charges. All of these files contain press statements and speeches that Demirtas made as a politician between 2016 and 2017 and which the Prosecutor alleges are evidence of terrorism and supporting the PKK (the Kurdistan Workers’ Party), a militant group.
Furthermore, Demirtas was separately charged with “making terrorist propaganda” and sentenced to 4 years, 8 months in prison. Sentences under 5 years are not eligible for appeal, and a convicted person cannot stand for election to parliament. This case should have been merged with the others addressed today, but by giving him a shorter sentence, the authorities were able to get a rapid conviction and remove Demirtas, they hoped, forever from the political arena as well as circumventing the outcome of the ECHR.
En route to the Silvan F Type Prison complex, an hour’s drive from Ankara, myself and the other international observers are pessimistic about our chances of being allowed entry to the court. We’d already been warned of problems and advised to ask our respective embassies to intercede for us to get accreditation. Upon arrival our wariness is justified. There is a massive police presence, everyone was holding pieces of paper, ID cards, jostling, pushing and trying to get inside the court, and at first we were all turned away.
Then miraculously four of us were granted admission: Ali Has and I from the UK, and two observers from Sweden. We found ourselves in the huge courtroom, which can apparently hold up to 500 people and is built within the comprehensive Sincan Prison complex which houses 20,000. It’s like a city, with buildings for men, women and even children.
The judge, co-judges and prosecutor were positioned so far away from us that we could not make out their expressions. Some 150 defense lawyers lined one side of the room. Masses of police surrounded us. There were some empty seats in the middle of the courtroom for the press, but no journalists were in attendance. This is hardly surprising given that so many independent newspapers have been closed down.
Demirtas himself stood before the court and demanded that the Judge and Prosecutor “withdraw” from this case. He claimed that the prosecution is “Unable to try me in a fair and professional way. You have treated false and fabricated evidence as if truth. These lies are shown in the ECHR files.” Demirtas went on to state that “On other occasions you have denied me access to the courts citing “security reasons”, while other detained MPs have been permitted to attend their trials. You chose the AKP over my freedom. You have shown your total loyalty is to the government, but if I had had my freedom and been outside during the Referendum, your party, the AKP would not have won.”
Demirtas continued throughout the morning to give examples of how deferent the judiciary was in the presence of President Erdogan, apparently “doing up their buttons“ whenever they met him, as a sign of respect. He ended his speech by saying “Even if I reach 90 I will never request a release from you, for I am a political prisoner and you have demonstrated your own lack of independence.”
After the lunch break, sixteen of Demirtas’ lawyers argued, as he had, for a new Judge and Prosecutor. One by one they gave examples of how Turkey is breaching its own laws. Later, after the court had adjourned, we observers learnt that the Judge and Prosecutor would not be withdrawing.
That night, at the HDP office, we had a briefing. We were thanked for our presence, and urged to do all we could to muster support in our own countries for those here struggling for democracy, justice, and freedom.
However the announcement from President Erdogan that in a few days Turkey will attack east of the Euphrates in Syria, cast a further shadow over the future of the country. The resumption of the peace process is what is wanted and needed, and goes to the heart of Demirtas’ hopes and policies.
The next day, Thursday 13th December, myself, my colleagues and the other international trial observers boarded the mini bus that would take us to Sincan. We wondered whether a decision would be made today on the “withdrawal demand”, what will be the defense’s reaction to the refusal, and whether the court will move on to attempt to prove the actual charges against Demirtas on the indictment.
On the way we learn that 50 hunger strikers have been arrested in Diyarbakir. This development, coupled with the government’s plans to attack the Kurds in North East Syria in the next few days, heightens our fears that the politics of the ruling AKP (Justice and Development Party) will direct the course of justice.
As was the case yesterday, upon arrival at the prison compound, eight of our fellow international trial observers were turned away by the police. This was despite our hopes that today would be different.
The judge started off the day’s proceedings by reading out the law that prohibits anybody recording the trial, and then Demirtas’ once again spoke in front of the court. He was angry. Standing before the judge, he rebuked him for his stinginess in writing just one short paragraph in response to the 100 pages of serious legal defence arguments for him and the prosecutor to withdraw from the case.
Demirtas told the Judge that “You act as if nothing has happened. Don’t you understand? You have been judged by the ECHR. You are bound by this verdict. You cannot wait for the Government to decide. You are the judge. It’s up to you.” It was extraordinary to us that the judge allowed such blatant criticism.
Demirtas went on. “You have been convicted long before me (meaning by the ECHR). How can you say you need take no notice of its ruling? You are misusing, abusing your powers. What is more, you are insulting our intelligence by providing no response to our request yesterday. I am not saying you are making procedural errors. No, I say you are committing a crime! You have kept me in unlawful custody to stop me from taking part in two of the most important elections. At least you should now have the courtesy of sending our submissions on your withdrawal to the upper court.”
At this point the judge intervened “So you are objecting to our decision not to withdraw?” “Yes, I am” answered Demirtas. “If I, like you, was to give in to Erdogan, I would be taking tea with him in his palace, made a Government Minister, but I did not give into him. And I will never give in to you. I know well the DNA of the AKP, for I worked closely with them for 5 years over the peace process; I know how they think and what they want. I know how they have conspired to indict me and keep me in prison.”
There was more in this vein for another hour, with Demirtas accusing the court of being a political tribunal, quoting Articles 3 and 18 of the ECHR, and demanding the right to be respected in relation to his position. “My defence is ready and I expect you to resolve this urgent request immediately and not let this case drag on and on into infinity.”
The judge listened impassively to this diatribe, never interrupting, in spite of the many criticisms expressed towards him and Turkey’s justice system in general. Then it was the turn of the defence lawyers (150 of them were present in court). Twenty of them had their chance to support, with more dramatic oratory, Demirtas’ attacks on the judge and prosecutor. They expressed their deep shame at the state of the justice system under Erdogan, its seemingly blatant disregard of ECHR decisions and the abandonment of the Rule of Law for political reasons.
Having listened to all the submissions, the judge gave the last word to Demirtas who repeated his requests. Thereafter it was for the prosecutor to comment on the proceedings. In two sentences he explained that the matter of withdrawing the judges should be referred to the upper court for their consideration and that the detention of Demirtas in custody should continue.
As we left the court, we waved at Demirtas from our seats. Outside we were greeted by his beautiful wife, who thanked us for our presence here.
The judges then adjourned for an hour to consider the applications. We left court not knowing what the verdict would be. A few hours later we learnt that the judge had effectively done as the prosecutor had requested and sent the application to the appeal court. Demirtas of course remains in custody, contrary to the ECHR decision.
The case has been adjourned until the 23rd January 2019. Hopefully then more international trial observers, having got their merited accreditations, will join us in viewing the proceedings.
Image supplied by Margaret Owen