Identifier
Created
Classification
Origin
05ANKARA2525
2005-05-03 14:54:00
CONFIDENTIAL
Embassy Ankara
Cable title:  

OCALAN LIKELY TO GET RETRIAL

Tags:  PGOV PREL PHUM TU PKK 
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This record is a partial extract of the original cable. The full text of the original cable is not available.
C O N F I D E N T I A L SECTION 01 OF 03 ANKARA 002525 

SIPDIS

DEPARTMENT FOR EUR/SE

E.O. 12958: DECL: 05/03/2015
TAGS: PGOV PREL PHUM TU PKK
SUBJECT: OCALAN LIKELY TO GET RETRIAL

REF: A. 03 ANKARA 1578


B. 02 ANKARA 8881

C. 02 ANKARA 6116

Classified by Polcouns John Kunstadter; reasons 1.4 b and d.

C O N F I D E N T I A L SECTION 01 OF 03 ANKARA 002525

SIPDIS

DEPARTMENT FOR EUR/SE

E.O. 12958: DECL: 05/03/2015
TAGS: PGOV PREL PHUM TU PKK
SUBJECT: OCALAN LIKELY TO GET RETRIAL

REF: A. 03 ANKARA 1578


B. 02 ANKARA 8881

C. 02 ANKARA 6116

Classified by Polcouns John Kunstadter; reasons 1.4 b and d.


1. (U) Summary: The European Court of Human Rights (ECHR) is
expected to rule on May 12 that Abdullah Ocalan, jailed
leader of the Kurdistan Workers Party (PKK),did not receive
a fair trial when he was convicted in 1999. Contacts say
such a verdict would likely lead to a retrial in a Turkish
court. Re-convicting Ocalan should be simple from a
technical standpoint, but the court would have to address
ECHR due process concerns to avoid international criticism.
A retrial of the terrorist leader could spark social unrest.
End Summary.

--------------
Ocalan Retrial Expected
--------------


2. (U) The ECHR has announced that it will issue its ruling
in the Ocalan case on May 12. Our contacts say they expect
the court to rule that Ocalan did not receive a fair trial
following his 1999 arrest. They say the ruling will likely
lead to a retrial for the terrorist leader.


3. (U) The ECHR initially ruled against Turkey in the case in
March 2003 (reftel A),when the court determined that
elements of Ocalan's detention and trial violated the Council
of Europe's Convention for the Protection of Human Rights and
Fundamental Freedoms. The court cited the following
violations:

-- The three-judge State Security Court that tried Ocalan
initially included a military judge;

-- the GOT improperly denied Ocalan access to an attorney for
seven days while he was held in police custody, during which
time he made several incriminating statements;

-- Turkish authorities improperly held Ocalan for seven days
before bringing him before a judge;

-- security forces attended meetings between Ocalan and his
attorneys;

-- following the first two attorney visits, Ocalan was
permitted only two hours per week for consultations with
attorneys; and,

-- prison authorities prevented attorneys from providing
Ocalan with certain legal documents.


4. (C) The GOT appealed the 2003 ruling to the ECHR Grand
Chamber, whose final decision is now expected. Koksal
Toptan, chairman of the parliamentary Justice Committee, told

us the Turkish judge on the ECHR recently discussed the case
with Justice Minister Cicek. Toptan averred that the judge
did not indicate how the court would rule; however, Toptan
said that, based on the initial verdict, he anticipates the
court will again rule against Turkey. Sema Kilicer,
political officer at the European Commission Representation
to Turkey, said she did not have any information on the ECHR
ruling. However, she said press reports anticipating a
ruling against Turkey are probably correct, noting that past
leaks about pending ECHR verdicts have proven accurate.

--------------
Ocalan Excluded in Initial Retrial Reform
--------------


5. (U) As part of the GOT's EU reform drive, Parliament in
2002 and 2003 adopted legislation allowing defendants to
apply for a retrial in a Turkish court if the ECHR rules in
their favor (reftels B-C). The legal amendments were
carefully crafted to provide a loophole designed to prevent
Ocalan from obtaining a new trial. The right to retrial was
applied to cases in which the ECHR had ruled prior to the
passage of the Turkish legislation, as well as to cases
brought to the ECHR following passage. It did not, however,
apply to cases under ECHR review at the time of passage.
Ocalan's case, as well as those of approximately 300 other
convicts, fell into this third category.


6. (C) Nevertheless, a number of Turkish attorneys have
argued that Ocalan is entitled to apply for a retrial thanks
to a 2004 constitutional amendment under which Turkey's
international agreements take precedence over national law.
Toptan maintains that the constitutional amendment would
enable Turkey to retry Ocalan without the need to make
further legal adjustments. He rejected the arguments of
Constitutional Court Vice Chairman Hasim Kilic, a
conservative (Islamist) who has said publicly that Turkey
would have to amend legislation to enable Ocalan to be
retried. Some attorneys have also argued that the loophole
in the legislation would not withstand a legal challenge,
because it arbitrarily establishes different rights to
defendants based on the dates of their ECHR appeals.


7. (U) A retrial would not be automatic -- a three-judge
Turkish high penal court would review an application and vote
on whether to approve it. If the court rules against
retrial, Ocalan's attorneys could appeal to the High Court of
Appeals (Yargitay). If that fails, they could take the
matter back to the ECHR. However, both Toptan and Yusuf
Alatas, president of the Human Rights Association, predicted
that the court will grant a retrial, to demonstrate its
willingness to accept the ECHR's authority. They said timing
is difficult to predict. Ocalan's attorneys will have one
year from the date of the ECHR ruling to apply for retrial,
although they are likely to act quickly; there is no deadline
for the court to rule on the application, and the judges may
decide to delay a decision for several months.

--------------
Trial Could Raise Tensions
--------------


8. (C) Toptan predicted that in a retrial Ocalan would again
be convicted and given the maximum sentence (Ocalan was
sentenced to death in the original trial, but the sentence
was converted to life imprisonment when Turkey abolished the
death penalty). But Toptan, echoing the comments of other
contacts with deep connections to the State, acknowledged
that the trial could become a rallying point for nationalists
and Kurdish separatists looking to stir up trouble.
Moreover, he worried that the EU will make "unreasonable
demands" on Turkey regarding the conduct of the trial. He
accused the EU of applying a "double standard" to Turkey,
asserting that while EU officials harshly criticized Turkey
for the violent crackdown on demonstrators by Istanbul police
in March, they have remained silent following similar
incidents in France. He averred that Turkey's critics in the
EU could use the trial to smear the GOT.


9. (C) Alatas, attorney for left-wing Kurdish activist and
PKK sympathizer Leyla Zana and her co-defendants, also said a
court should have no trouble re-convicting Ocalan. He said
Ocalan openly admitted in the original trial that he was the
head of the PKK, so there is no question about his guilt.
Moreover, Alatas averred that the Turkish public is not
inclined to overreact to the matter. When Turkey lifted the
death penalty, he noted, there were only minimal protests,
despite the fact that the reform spared Ocalan's life.
Alatas said he doesn't expect significant unrest unless
"elements of the State" decide to exploit the trial for their
own interests.

--------------
Comment
--------------


10. (C) From a technical, judicial standpoint, retrying
Ocalan should not present a difficult challenge. There is
ample evidence of Ocalan's guilt, which by all accounts he
did not try to deny in the initial trial. But the Turks will
have to do it right this time. Ocalan was initially tried in
the (now abolished, in name at least) State Security Court
system, where defendants were presumed guilty and little
effort was made to evaluate evidence. The Leyla Zana retrial
was the first retrial allowed pursuant to an ECHR ruling
under the new reforms. It did not go well. The court
repeated the pro-prosecution practices utilized in the
original trial, which had led to the ECHR ruling against
Turkey. Attorneys and defendants spent the proceedings
making speeches bearing no apparent relation to the charges
at hand. As anticipated, the court repeated its initial
conviction, which an appeals court promptly overturned. The
defendants are now being tried again. A court re-trying
Ocalan will have to make a serious effort to address the
concerns of the ECHR to avoid a similar embarrassment.


11. (C) There is also a potential for social unrest in
connection with a retrial. Many close contacts tell us
nationalism, on the rise in Turkey, is being stoked by
various elements of the deep state, as reflected in the
recent "flag burning" hysteria. Turks are beginning to
become more skeptical about the EU's intentions toward
Turkey, and suspicious of its motives. The retrial is likely
to take place in an already supercharged political atmosphere.
EDELMAN