US embassy cable - 03ANKARA5217

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. 
 
 
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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. 
 
 
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...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. 
 
 
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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. 
 
 
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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. 
 
 
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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. 
 
 
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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