ECHR RULING: OCALAN TRIAL UNFAIR, PRISON

C O N F I D E N T I A L SECTION 01 OF 02 ANKARA 001578 SIPDIS DEPARTMENT FOR EUR/SE E.O. 12958: DECL: 03/12/2008 TAGS: PGOV PREL PHUM TU OSCE PKK SUBJECT: ECHR RULING: OCALAN TRIAL UNFAIR, PRISON CONDITIONS ACCEPTABLE REF: A. ANKARA 1303 ¶B. ANKARA 972 ¶C. ADANA 44 ¶D. 02 ANKARA 8881 Classified by Polcouns John Kunstadter; reasons 1.5 b and d. ¶1. (C) Summary: The European Court of Human Rights ruled that jailed PKK leader Ocalan did not receive a fair trial, while also determining that his prison conditions are acceptable. Both the GOT and Ocalan's attorneys plan to appeal the ruling. Regardless of the outcome of the appeal, Ocalan will not be eligible for a re-trial. The ruling is consistent with longstanding U.S. and European criticisms of Turkey's State Security Court system, where Ocalan was tried. End Summary. ¶2. (U) The European Court of Human Rights (ECHR) March 12 issued its decision in a case filed against the GOT on behalf of PKK leader Abdullah Ocalan, who was arrested in 1999 and is now held in a special prison on Imrali Island in the Sea of Marmara. Ocalan was convicted and sentenced to death, but his sentence was commuted to life in prison after the GOT in August abolished the death penalty during peacetime. The ECHR found the GOT in violation of certain articles of the Council of Europe's Convention for the Protection of Human Rights and Fundamental Freedoms, while rejecting the applicant's claims regarding other articles. The ECHR awarded Ocalan 100,000 Euros. -------------- Violations: -------------- ¶3. (U) The court found the following violations: -- Applicant was not tried before an independent and impartial tribunal and was not given a fair trial (Article 6.1). -- Applicant was sentenced to death following an unfair trial (Article 3). -- Applicant was not brought promptly before a judge (Article 5.3). -- Applicant's detention was not quickly reviewed by a judge (Article 5.4). -------------- Non-Violations: -------------- ¶4. (U) The court found the following non-violations: -- The circumstances of applicant's transfer to Turkey and detention conditions were not unlawful (Article 3). -- Applicant's arrest and detention were not unlawful (Article 5.1). -- Applicant's right to life and protection from ill treatment had not been violated (Articles 2 and 3). -------------- GOT, Defense Will Appeal -------------- ¶5. (U) The MFA issued a terse statement promising an appeal to a higher ECHR board. Kaan Esener, head of the MFA Council of Europe Department, told Poloff he was surprised and disappointed by the ruling, particularly the court's determination that the Ankara State Security Court (SSC) where Ocalan was tried had not been independent and impartial. (Note: SSCs are special courts that handle crimes such as terrorism, drug smuggling, and threats to the State. They are permitted to hold closed hearings and admit testimony obtained during police interrogation in the absence of counsel. End Note). Esener said the GOT has three months to prepare an appeal to a higher ECHR body, which will render a final decision. He said he was concerned that Ocalan's supporters might use the ruling to stir trouble. Ocalan attorney Aysel Tugluk told Emboff she welcomed the ECHR's determination that the trial was unfair. But she argued the court should have determined that Ocalan's arrest and transfer to Turkey violated extradition rules and constituted a kidnapping. She also said Ocalan's sentence violated his right to life, regardless of the subsequent abolition of the death penalty. She said the defense will file an appeal. Ahmet Turan Demir, chairman of the pro-Kurdish HADEP Party, said the verdict presents a chance for the GOT to review its judiciary system and improve its relations with the Kurdish community. ¶6. (C) Regardless of the outcome of the appeal, Ocalan will not be eligible for a retrial. As reported Reftel D, recent GOT reforms allowing for retrial pursuant to ECHR rulings were carefully designed to leave out Ocalan. -------------- -------------- Detention and Trial Flawed, Prison Conditions Lawful -------------- -------------- ¶7. (U) The seven-judge ECHR panel criticized the GOT for initially including a military judge on the three-judge SSC that tried Ocalan. The SSC replaced the military judge with a civilian early in the trial, but the ECHR determined that measure inadequate. (Note: The lone Turk on the panel filed a partially dissenting opinion defending the SSC. End Note.). The court also determined the GOT had improperly denied Ocalan access to an attorney while he was held in police custody from February 16-23, 1999, during which time Ocalan made several incriminating statements. Authorities improperly held Ocalan for seven days before bringing him before a judge. Subsequent attorney visits were held in the presence of members of the security forces. After the first two visits, Ocalan's contact with attorneys was limited to two hours per week. Prison authorities prevented attorneys from providing Ocalan with certain legal documents. ¶8. (U) On the other hand, the court determined that Ocalan's prison conditions do not constitute inhuman or degrading treatment. Ocalan is the sole prisoner held on Imrali Island. Kurdish activists argue that the GOT is isolating him inhumanely and have demanded he be transferred to a mainland prison. Jandarma officials prevented attorneys and relatives from visiting Ocalan, supposedly due to stormy weather (reftels),for a three-and-a-half-month period ending March 12, drawing angry protests. The court also ruled that the conditions of Ocalan's arrest and transfer from Kenya to Turkey were not unduly humiliating. -------------- COMMENT -------------- ¶9. (C) This ruling should come as no surprise to the GOT, as U.S. and European observers have long argued that the SSC system sacrifices individual rights to the interests of the State. The most serious SSC abuses are not in legitimate terrorist cases like Ocalan's, but rather in the numerous cases brought against human rights workers, Kurdish rights advocates, journalists, and others charged with threatening the State for expressing their views. There is talk in Parliament about introducing a bill that would drastically reform the SSCs. The GOT could significantly improve its human rights record, and bring Turkey closer to EU membership, by re-making the SSCs into a legitimate forum for trying terrorists and dangerous criminals, rather than a tool for silencing dissent. PEARSON