ATTORNEY FOR LEYLA ZANA ACCUSES COURT OF BIAS

C O N F I D E N T I A L SECTION 01 OF 02 ANKARA 005217 SIPDIS E.O. 12958: DECL: 08/15/2008 TAGS: PGOV PREL PHUM TU SUBJECT: ATTORNEY FOR LEYLA ZANA ACCUSES COURT OF BIAS REF: A. ANKARA 2056 ¶B. ANKARA 1362 ¶C. 02 ANKARA 8881 (U) Classified by Polcouns John Kunstadter; reasons 1.5 b and d. ¶1. (C) Summary: Lead defense attorney in the new trial of Leyla Zana and three other Kurdish former MPs accused the court of bias for refusing to release the defendants from prison during trial and consistently rejecting defense requests regarding witness testimony. Our European contacts share this view, as do we. The biased conduct of the court in this case reflects a judicial system designed to favor the prosecution. End Summary. -------------- Attorney Charges Court With Bias... -------------- ¶2. (U) August 15 Yusuf Alatas, lead attorney for Kurdish activist Leyla Zana and her co-defendants (serving sentences for separatism since 1994),accused the Ankara State Security Court (SSC) re-trying the case of bias. Speaking at the sixth hearing of the trial, Alatas criticized the three-judge panel for consistently siding with the prosecutor and rejecting defense requests. For example, he said, the court: -- Refused repeated requests for the release of the defendants pending the outcome of the trial (reftels); -- Rejected requests to have witness testimony audiotaped; -- Generally prevented defense attorneys from directly questioning witnesses; when defense attorneys have tried to relay questions through judges, the court has generally sustained the prosecutor's objections against such questioning. -------------- ...As Does International NGO -------------- ¶3. (U) Alatas argued that the SSC should have disregarded the verdict in the original 1994 trial, which the European Court of Human Rights (ECHR) determined in a 2001 ruling to have been unfair. Instead, he claimed, the court has used the original verdict as a basis for the retrial. He further noted that the Geneva-based International Commission of Jurists (ICJ) has criticized the SSC's conduct in the current trial, and he submitted a Turkish translation of an ICJ report. He said he would refrain from making further requests, as to do otherwise would appear to lend legitimacy to the hearings. ¶4. (U) The court did not respond to Alatas' comments. -------------- Problems Continue Despite Special Efforts -------------- ¶5. (C) Witness testimony is not normally taped in Turkish courts; the chief judge summarizes witnesses' comments for the (typewritten) record. Attorneys and prosecutors are not generally allowed to question witnesses directly. Ironically, the SSC in this case went to unusual lengths to make witnesses available for questioning. Traditionally, witnesses in Turkish court cases can testify at the court nearest to their residence. However, the ECHR determined that this practice had unfairly prevented attorneys from questioning witnesses in the original trial, and the SSC therefore took the unprecedented step of requiring all witnesses in this case to testify at the Ankara court. -------------- Chief Judge Opposed Retrial -------------- ¶6. (U) The defendants in the case -- Leyla Zana, Hatip Dicle, Orhan Dogan, and Selim Sadak, all former MPs from the (now banned) pro-Kurdish Democracy Party -- were convicted in a controversial trial of membership in an illegal organization (the PKK). They were arrested and charged after making a series of public statements asserting their Kurdish identity; Leyla Zana also took her oath of parliamentary office in Kurdish. Their new trial, which began March 28, marks the first retrial granted in accordance with reform measures adopted by Parliament in January (reftel C),which allow for a second trial in a Turkish court for defendants who win ECHR appeals. The SSC voted 2-1 to allow a retrial in this case, with the chief judge dissenting. At the opening session, the defense called for the replacement of the chief judge on these grounds, but the court overruled. -------------- Europeans Critical -------------- ¶7. (C) EU membership criteria require the GOT to address the issue of prisoners held for non-violent speech, and EU diplomats have made it clear that they consider this high-profile case to be a test of the GOT's commitment to reform. A number of European diplomats, who have been attending the hearings, told us they consider this to be a "show trial" designed to give the appearance of complying with the ECHR. -------------- Comment -------------- ¶8. (C) Pro-prosecution bias is literally built into the Turkish court system -- the prosecutor sits alongside the three judges on an elevated platform beneath a bust of Ataturk, while defense attorneys sit below at ground level. The prosecutor, like the judges, has a computer allowing him to read the court record; defense attorneys do not. When defense attorneys and witnesses speak, the chief judge paraphrases their comments for the record; the statements of prosecutors and their witnesses are transcribed verbatim. Furthermore, from our observations, the court in this case appears hostile to the defense. The chief judge has often interrupted defense attorneys' comments and flustered defense witnesses with aggressive questioning. At the May 23 hearing, a prosecution witness played a Turkish translation of a recorded telephone conversation in Kurdish supposedly incriminating the defendants. The court refused the defense request for access to the original recording. ¶9. (C) Turkish convicts normally serve three-quarters of their sentences, which for these defendants would mean release in 2005. In this case, judging by the court's conduct to date, our contacts think the judges are setting the stage for a guilty verdict, which they would use to sentence the defendants to time served. In this way, the court will seek to relieve international pressure by releasing the defendants, while standing by its original guilty verdict. EDELMAN