The United Nations General Assembly defines acts of terrorism as “activities aimed at the destruction of human rights, fundamental freedoms and democracy, threatening the territorial integrity and security of States, destabilizing legitimately constituted Governments, undermining pluralistic civil society and having adverse consequences for the economic and social development of States” (17 December 1999, Resolution No. 54/164).
It is the responsibility of all States to bring those who are suspected of perpetrating, organizing and sponsoring terrorist attacks before the courts (12 September 2001, UN Security Council Resolution No. 1368). To this end, the Security Council called on States for urgent cooperation. According to this call, States should endeavour to eliminate reasons creating terrorism.
“Guidelines on Human Rights and the Fight Against Terrorism” adopted by the Committee of Ministers of the Council of Europe on 11 July 2002 at its 804th Meeting, which stress that “the imperative duty of States [is] to protect their populations against possible terrorist attacks”, is an important document in respect to the fight against terrorism.
Parliamentary Assembly Resolution No. 1258, “Democracies Facing Terrorism”, dated 26 September 2001, called on States to “renew and generously resource their commitment to pursue economic, social and political policies designed to secure democracy, justice, human rights and wellbeing for all people throughout the world”.
As a country where many deaths occur due to the unresolved Kurdish problem, it is an indisputable fact that we all have a responsibility in the prevention of terrorism and maintenance of peace.
On 15 January 2010, then current Minister of the Interior Besir Atalay held a press conference about the “Democratization” efforts within the scope of the “National Unity and Brotherhood Project”.1 At this press conference, he reiterated certain points, summarized below:
• The Regulation enabling detained and convicted persons to speak with relatives in their native language entered into force.
• State television channel, TRT 6, began broadcasting in different languages and dialects.
• The “Institute of Living Languages in Turkey” was founded within the framework of the Higher Education Council (YOK) resolutions towards establishment of Research Institute Centers operating in different languages and dialects within universities.
• Steps were being taken that would normalize the daily lives of citizens, but in a manner that would not disrupt the fight against terrorism. Measures had been taken to reduce road checks and minimize bans on plateaus.
• That the foundation of the “Turkish Human Rights Institution” and “Anti-Discrimination and Equality Board”, the ratification of the “Optional Protocol to the UN Convention Against Torture” and the establishment of the national mechanism foreseen therein2 had been targeted were issues mentioned during same press conference.
According to Atalay’s statement, efforts within the scope of the National Unity and Brotherhood Project had two main objectives: One was ending terrorism and the other was increasing the level of the standard of democracy and expanding the sphere of fundamental rights and freedoms.
Atalay said “If these two objectives are attained, it is clear that all members of our nation, who have shared a common fate throughout history, will live in a more peaceful, secure and free country. If these objectives are attained, all of us will live in this country as brothers, in wealth and under better conditions.” Meanwhile, he described the session held by the Turkish Grand National Assembly on 13 November 2009 as a “historic session”, mentioning that short, mid and long-term steps under the “Democratic Initiative” project were announced.
In his speech, Atalay stated that they would continue to take short, mid and long-term measures aimed at reaching democratic and human rights standards within the framework of democratization and the fight against terrorism. According to him, measures will relieve not only one part, but the whole country, for they believe that democratization will only be successful if it covers all segments of the community. He even said, “For this reason, the slogan of the democratic initiative is ‘More freedom for all’. We say more rights, freedom and democracy for everyone. This would not weaken Turkey; on the contrary, would strengthen it”.
The same day, Ahmet Turk declared his opinion on behalf of the Democratic Society Party (DTP) at the Turkish Grand National Assembly, stating that the process initiated by the Government under the title “Kurdish Initiative” and then changed to “National Unity Project” was far from presenting a solution. His proposal was the setting up of a commission where all parties in the Grand National Assembly would be represented, which would investigate economic and political dimensions and produce a solution to the Kurdish problem.
Turk, who stated that the Turkish public had a right to learn all the facts surrounding the Kurdish problem, explained that it would be unrealistic to expect public support for the process without knowing the truth and they expected democratic proposals from the commission that would be set up under the Grand National Assembly. Turk stressed that with proper management of this process, Turkey would be the one to gain and he stated, “Democratization of Turkey would pave the way for peace and democracy in the Middle East. With a resolution of the Kurdish problem, Turkey would lead the democratization process in the region. The inhumane suffering in Turkey and the Middle East would end. Democratization in Turkey would mean democratization in the Middle East.”3
The process, which drew attention with the arrest of 53 people in Diyarbakir on 14 April 2009, is known by Turkey’s public as the KCK cases.
The talks at the Grand Assembly and the democratic initiative process seven months after these detentions did not bring anyone more freedom. On the contrary, the number of cases and detained increased and KCK cases continue to influence Turkey’s agenda.
In addition to the KCK cases in Diyarbakir, there are similar cases pending in Adana, Erzurum, Van and Izmir.
After Diyarbakir, the most striking cases are the three separate KCK cases pending in Istanbul.
The significant feature of these cases is that the majority of those who were investigated, are being investigated, and tried are executives, members and mayors of DTP (Democratic Society Party) or its successor, Peace and Democracy Party (BDP), or similar circles.
Some of the facts subject to the investigations and pending cases are closely related to freedom of speech, freedom of association, organizing in associations, trade unions, chambers, political parties or participating in political party activities in local elections, being a candidate, engaging in local administrations, attending meetings and protest marches, exercising political and civil rights as mentioned in the petition.
The main subject of this article is providing information regarding the KCK cases and assisting in the determination and comprehensibleness of the legal situation
The goal is not seeking an answer to the question of how the Kurdish problem can be resolved.
Instead, it is to reflect upon the KCK cases and the criminal justice system in conjunction with the accusations put forth in the indictments.
Similarity of the indictments and KCK
The indictments prepared before July 5, 2012 by the Office of the Authorized Chief Public Prosecutors pursuant to Article 250 of the Criminal Procedure Code, which was repealed by Law Number 6352, contain similar features and duplications.
Many legal problems were encountered due to extensively long indictments in the cases known as Ergenekon and Balyoz. Many suspects are accused and tried under multi-paged, long and similar indictments regarding KCK. An example of this practice can be seen in the indictment dated March 19, 2012, File No. 2012/59, prepared by the Office of the Authorized Chief Public Prosecutor of Istanbul. The case initiated with this indictment is referred to as “the main Istanbul KCK case”.
According to the indictment, “‘A quadruple international project…’ under the control of PKK with participation of the KCK Turkish Council, Party for Freedom and Life in Kurdistan (PJAK) in Iran, Kurdistan Democratic Solution Party (PCDK) in Iraq and Democratic Union Party (PYD) in Syria, and an ‘independent state structure’” is being targeted (Page 70).
According to the indictment, this target, in other words “each organization” under the KCK’s name, has a “mission” “in the country where it is located”, meaning Turkey, Iran, Iraq and Syria.
The indictment explains KCK’s mission as follows: “…[KCK] undertakes the mission of creating a basis for the structure referred to as a united and independent Kurdistan and that existence of citizens of foreign countries within the PKK terrorist organization should be evaluated in this respect, and activities that are engaged in initially aim at an autonomous structure and, finally, a state under the name of Kurdistan occupying lands of the four states”.
The indictment explains the underlying reason for frequent name changes: “…due to the fact that the terrorist organization PKK’s more than 30 years of terrorist activities face a deadlock from time to time, a name change was needed. For this reason, names such as KADEK, KONGRA-GEL were used.” The indictment determines that the “organizations KCK and Democratic Society Congress are political movements”, “and KCK and DTK, which initiated the physical division of the country, attempted to legitimize themselves in this way” and, in conclusion, PKK and KCK are identical organizations and when referring to the organization it was referred to as the “PKK/KCK terrorist organization”.
From page 69 onwards of the indictment, the history of PKK/KCK is outlined. Explanations of its activities continue until page 550. Thereafter, suspects are investigated individually and accusations explained. Explanations of the accusations are completed on page 2073.
According to the indictment, the PKK/KCK terrorist organization held its “5th General Assembly Meeting” 16-22 May 2007 with participation of 213 members. After the said general assembly meeting, its name was changed from Kurdistan Democratic Confederalism/Koma Komelan Kurdistan (KKK) to Kurdistan Democratic Union/Koma Civaken Kurdistan (KCK).
Thereafter, KCK decided to run activities inside Turkey as Kurdistan Democratic Union /Turkish Council (KCK/TM). “Consequent to the meeting held on 12-13 January 2008 in Diyarbakir, which was presented to the pro-organization media as the “Confederation of the Democratic People’s Council”, an organizational document titled ‘Democratic Community Agreement’ was approved”. It is included in the historical progress section of the indictment that “in the document prepared by taking ‘The “KCK Agreement’ as basis, which is the terrorist organization’s constitution, the structure of the KCK/TM is described as “Turkey and North Kurdistan Democratic Society Co-federalism”.
Some of the determinations in the indictment can be grouped together under certain main headings and summarized as:
* Recently, the terrorist organization was named “KCK”.
* KCK adopted a structuring model comprising Turkish-Iraqi-Syrian-Iranian lands. The terrorist organization runs its operations in Turkey through the KCK/TM organization.
* KCK is the main structure of the terrorist organization PKK/KCK.
*Issues such as the structure of KCK, the manner of how its system is managed and roles of its organs are handled in detail in the KCK Agreement, comprised of 14 sections.
* KCK aims to run activities in Turkey through a strategy it calls “all-out defense”.
* Its recent strategy, “a strategy characterized by the organization as the ‘Kurds’ period of defending their existence and provision of freedom’, which commenced on 31 May 2010, ‘a strategy based on ‘social construction efforts which contains armed and political aspects’, and whose mainstay is constituted by democratic autonomy”.
* In this scope, the organization accelerated its violent, mass actions and politicization activities and commenced a complete existence campaign.
The indictment of the main Istanbul KCK case places special importance on “Political Academies”. The indictment explains “Political Academies”, their role and purpose as follows:
“Political Academies serve to accelerate terrorist organization’s activities in the political arena and revive politics in parallel with the organization’s ideology and objectives. At the same time, infusion of staff, which will be educated and trained in the organizational ideology, will be realized through these academies. Construction of a new society is intended in this way. Due to the fact that the achievement of this goal is possible through the establishment of educational centers under the name Political Academies, they were established in different provinces under various names.”
According to the indictment, overthrowing the government in Egypt as a result of the civil uprising in Tahrir Square is shown as an example at KCK meetings. It is alleged that the intention was to turn Diyarbakir into Tahrir. And, KCK, DTK and the Political Academies are the supports of the project to divide the state through descending into public and civil uprisings.
From May 2007 onwards, the organization established the KCK structure to attain the objective of a “United and Independent Kurdistan”. Taking its principal basis from the KCK Agreement, this structure represents a unified state structuring model comprising legislative, executive and judicial elements under the presidency of the Leadership (organizational leader Abdullah Ocalan).
Between pages 2388 and 2399, all accusations regarding KCK, Political Academy and DTK are summarized under the heading “IN CONCLUSION”.
KCK cases and those on trial
It may be possible to determine how many are being tried in the KCK cases according to the indictments and cases initiated, but this could be misleading. If one considers the other cases joined in the cases initiated, it is hard to estimate the exact number of suspects across Turkey. Minister of Justice Sadullah Ergin responded to BDP Diyarbakir MP Emine Ayna’s parliamentary question regarding the number of suspects who are being tried in court. Accordingly, there are 113 criminal cases pending within the scope of KCK investigations, which began on 14 April 2009. 2146 suspects are being tried in these cases. 992 of them are arrested. According to information given by Ergin, 274 of the suspects consist of local administrators, provincial and district presidents of political parties, members of municipal assemblies and MPs. The Ministry of Justice’s response based on information obtained through correspondence with Office of the Chief Public Prosecutor of Ankara, Istanbul, Izmir, Adana, Malatya, Erzurum, Diyarbakir and Van appeared in the daily press.4
However, it is possible to determine the number of suspects in cases pending in Diyarbakir and Istanbul based on the indictments, taking into account the margin of error.
Following the investigation, which began on 14 April 2009, the first case initiated is the one pending in Diyarbakir. 151 individuals were named as suspects under the indictment dated 9 June 2010, consisting of 7587 pages (Indictment No. 2010/1072).
According to the indictment of the first case in Istanbul, dated 19 March 2012 (Indictment No. 2012/123), in which BDP provincial and district executives and known figures such as Busra Ersanli, Ragip Zarakolu, Ayse Berktay are being tried, 193 people are named as accused. The indictment of this case is 2401 pages.
The first trial in this case was held on 2 July 2012. Held before the court in Silivri, it lasted until 13 July 2012. Due to the request of some suspects for arraignment, the indictment is continuing to be read in the on-going trials. Requests for submitting Kurdish identity details and defense in Kurdish were denied. 352 pages of the indictment had been read before the hearing on 13 July 2012. At the hearing held on 13 July 2012, 16 individuals were released, including Prof. Ersanli. Trials in this case will continue on 1 and 9 October 2012.
According to the indictment of 3 April 2012 of the second case in Istanbul, publicly known as “Istanbul KCK Attorneys”, 50 individuals are named as suspects (Indictment No. 2012/168). The indictment is 891 pages. Trials in this case were held 16-18 July 2012 at the Istanbul Caglayan Courthouse. Requests for submitting defense in Kurdish were denied. The court decided for the release of some suspects. Trials were postponed to November. Due to a lack of courtrooms, trials will be held in Silivri.
According to the indictment of the third case, publicly known as the “KCK case regarding journalists”, dated 27 April 2012, 44 individuals are being tried. The first trial in this case will be held in September. The indictment consists of 800 pages.
Therefore, considering the criminal case pending in Diyarbakir, the KCK main case in Istanbul, the second and third cases in Istanbul regarding attorneys and journalists respectively, 438 individuals are being tried in the said four cases. The total number of pages of the indictments in these cases is 11,679.
Is it normal that 2146 are being tried
According to Ergin’s statement, 438 individuals are subject to criminal proceedings in Istanbul alone. We should accept that given these statistical data we are facing an alarming situation. No one can say, “Perpetrators of crimes should not be tried or punished”. What is expected is a fair and lawful trial process. Undoubtedly, in relation to the authority of the judiciary, every criminal case is expected to be concluded in a short period of time, pursuant to the right to a fair trial.
Detentions, arrests and the trial process within the scope of KCK operations and investigations suddenly became an ordinary part of life. As a result, a process of internalizing extraordinary trials has been experienced, and this is a continuing process, which is essentially the worrying issue. When initiatives such as the “Democratic Initiative” or political proposals such as the “National Unity and Brotherhood Project” and the criminal cases initiated are considered together, the inconsistencies between the legislative, executive and judiciary become apparent. The inconsistencies encountered in practice damage the trust towards politics and law and therefore, the sincerity of political solutions are being questioned.
Principally, a debate on democracy should not be engaged in over numerous criminal cases, long indictments or long periods of imprisonment. Such issues do not occupy agendas of countries where principles of democratic constitutional states are in place. If we want to solve such issues in our country, democracy should be used as an instrument because man is the objective, not the instrument. Judicial authorities and courts do not have a duty to resolve the issue of terrorism. Courts adjudicate, and if there is a crime committed, make a determination and decide upon a sentence. For this reason, a perception by the legislative, executive organs and/or politicians that the judiciary has a different duty creates a problem in the judiciary. Therefore, any regulation to resolve these issues results in the emergence of other problems. As a result, continuing the adjudication of extraordinary periods creates problems, not solutions. A legal system where extraordinary powers and duties are pursued is not the norm.
What is expected from criminal law
What is your outlook on criminal law? What is your preference? Do you have a philosophy about criminal law? You have to answer all these questions and be brave.
Turkish criminal law is experiencing a reversion to “panic legislation”. Everyone is making statements regarding the law. Criminal proceedings have come to dominate our lives. Now we have proceeded on to talk regarding crimes such as “forming and being a member of an armed terrorist organization” and/or “aiding and abetting a terrorist organization”.
Everyone is acting as a “party”, but the important thing is to side with the law and exercise one’s conscience. Now everyone has his/her own law and trial. The cases have a “name” that they are referred to. In conclusion, the Turkish criminal law system is about to be “diverted” and is dealing with constantly increasing problems.
In short, because “detention” prescribed by the Criminal Procedure Law is not operating as a fair notion, but operating like a constantly malfunctioning mechanism, issues such as restriction of freedoms and the right to a fair trial continues to deeply influence the public.
First, a “problem” is created consistent with the law. Then a law is enacted to solve the problem created. As this solution is created in the name of “democracy”, it pretends the problem is being resolved. “Politics” are then pursued over new problems created with “legal amendments”, which are determined to be solutions. The latest example of this is the “Law Regarding Amendments to Certain Laws to Promote Judicial Services and Postponement of Proceedings and Sentences in Relation to Crimes Committed Through the Press”, Number 6352, adopted 2 July 2012. When this law entered into force, published in the Official Gazette on 5 July 2012, Numbered 28344, trials of the main Istanbul KCK case were ongoing and the second case, the prosecution of attorneys, had not started yet.
According to Law Number 6352, justifications must be recorded for the continuation of detention, which should be based on substantial facts between the crime attributed to the accused and his acts. Strong suspicion of guilt was recognized as sufficient grounds for detention. It was the legislator’s intention to implement judicial control measures instead of detention. The sentence period condition foreseen in the former law for judicial control decisions instead of detention was abrogated. It became possible to decide on judicial control measures instead of detention decisions.
While KCK trials were ongoing at the Specially Authorized Court, which - quoting the records - has an “independent entrance” next to the Silivri Penitentiary, the Ergenekon and Balyoz trials were ongoing in other courts also held at Silivri. Adoption of Law Number 6352 during the trials of the KCK main case on 2 and 13 July 2012 aroused “hopes” that detentions would end. Based on this law, it was submitted to the court that the high criminal court’s duty terminated, that it was invalid, and that continuation of duty pursuant to the provisional article was unconstitutional. However, the court rejected these submissions. Living in a judicial system based on detention and living in a country where politics are pursued over individuals’ freedom affect everyone’s lives.
Now, problems created through fear, intimidation and an unconscientious legal system create tension and panic in society. The search for justice and rule of law wounds the conscience.
Yet, there are very simple solutions. The UN General Council adopted the Basic Principles on the Independence of the Judiciary in 1985. The source of these principles is the Universal Declaration on Human Rights. These fundamental principles are: equality before the law, presumption of innocence and the right to a fair and public hearing by a competent, independent and impartial tribunal established by law. International Covenants on Economic, Social and Cultural Rights and Civil and Political Rights (twin covenants) guarantee the exercise of these rights. Not just in Turkey, but throughout the world, there is regrettably a huge divide between the judiciary and independence of the judiciary, protection of fundamental human rights and freedoms due to the failure to implement those principles. To eliminate this divide and prevent creation of new ones, the Basic Principles on the Independence of the Judiciary should be adopted and applied in practice.
According to Principle 5 of the Basic Principles on the Independence of the Judiciary, “Everyone shall have the right to be tried by ordinary courts or tribunals using established legal procedures”.
Criminal law aims to ensure individuals live together in peace and safety. Where it is not possible to protect the legal rights of individuals and society with less severe or other legal and socio-political measures, states can resort to criminal law to protect citizens. Criminal law should be a last resort when other legal regulations fall short. Relieving each disruption in social order through criminal sanctions does not coincide with principles of a constitutional state. For this reason, criminal law is not and should not be a law of sanctions. Criminal law should protect the fundamental and other rights of individuals. The legislator cannot create crimes that violate human rights. Freedoms such as freedom of speech, freedom of association and freedom to participate in political life exist to be exercised, not restricted. Therefore, criminal law and criminal sentences should be a last resort (ultima ratio), not the first resort (solo ratio).
KCK cases and investigations should be screened with this perspective.
It is imperative that a society attain not just a “legal system”, but a “legal system based on ethics”. For this reason, individuals should be accepted as subjects and not be instrumentalized in order to attain a public order that does not instrumentalize individuals. The object should be individuals.
Therefore, the judiciary’s relationship with suspects in the KCK cases, even justice and the rule of law, should be considered from this perspective.
Are the KCK cases in fact cases for the BDP’s closure
As understood from the indictment of the main Istanbul KCK case, audio surveillance was conducted on individuals and investigative authorities were informed of their being a member of “KCK” or engaging in activities for the terrorist organization. According to the indictment, “Upon receiving information that meetings were held at BDP Istanbul Provincial and District Head Offices by KCK/TM, which constitutes high level management of the terrorist organization and those meetings were attended by the organization’s high level managers and core staff, audio surveillance was conducted…”. Thus, evidence was gathered in this way.
A striking piece of information is on the last page of the indictment of the main Istanbul KCK case: “[This] manifestly reveals the organic relation and unity of purpose between PKK/KCK terrorist organization and BDP. Additionally, as understood, given the fact that Social Academies are being established under the legal personality of BDP and being used as terrorist organization’s training camps, a copy of the indictment will be forwarded to the Office of the Chief Public Prosecutor of the Court of Appeals for evaluation of the said party’s legal situation”.
These “two separate investigation” procedures, which may arise from this decision, may lead to future legal problems.
Pursuant to Article 68 of the Constitution, political parties are founded without pre-authorization. They engage in activities in conformity with the Constitution and law. BDP is a political party and represented at the Grand National Assembly. Citizens have the right to establish political parties, join political parties according to procedures and terminate memberships. Besides the regulation under Article 68 of the Constitution, principles that political parties should adhere to are stated under Article 69. Paragraph 4 of Article 68 states the permissible content of statutes and permissible activities of political parties and those that are banned. Activities, internal regulations and operations of political parties should adhere to democratic principles and implementation is regulated by law.
Closure of political parties is decided upon by the Constitutional Court in proceedings initiated by the Chief Public Prosecutor of the Court of Appeals. If a political party’s statute and program is determined to be against Paragraph 4 of Article 68 of the Constitution, the Constitutional Court decides for the permanent closure of the party. With this in mind, preparing an indictment and initiating action would create a legal consistency given the fact that being a member of BDP, engaging in activities, visiting party buildings, participating in democratic social protests organized by the party, a democratic right was exercised. If an accusation is brought against the legal entity of a political party, then it is unnecessary to accuse individuals. An environment that can lead to a criminal case against individuals to pave the way for closure and termination of the legal entity of a party cannot be created. This is because accusation of individuals would be unlawful in the face of accusations of a political party constituted and operated in accordance with the law.
This issue was submitted to the court. However, the request that the case should be heard by the Constitutional Court was denied on grounds that it was not BDP’s legal entity, but the suspects, or individuals, who were on trial.
In lieu of conclusion
The Kurdish problem cannot be solved through criminal cases initiated regarding the KCK.
2. At the General Assembly of the Turkish Grand National Assembly held February 23, 2011 (23rd Term 5th Legislative Year 70th Sitting) “The Law Authorizing Adoption of the Additional Optional Protocol to the United Nations Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment” was passed by open vote of 203 MPs. The Approval Law of the Convention dated 23 February 2011, No. 6167 was published in the Official Gazette on 12 March 2011, No. 27872.
3. Term 23, Legislative Year 4. Journal of Turkish Grand National Assembly, Volume 53, 18th Sitting, 13 November 2009.
4. Radikal Newspaper, 4 August 2012: KCK Balance Sheet (KCK Bilancosu), by Tarik Isik, (http://m.radikal.com.tr/NewsDetail.aspx?ArticleID=123751&CategoryIDs=1); Milliyet, August 4, 2012: Ergin: Number of suspects in KCK is 2146 (Ergin: KCK’dan yarg›lananlar›n say›s› 2 bin 146).