US embassy cable - 05ANKARA2821

C O N F I D E N T I A L ANKARA 002821 
 
SIPDIS 
 
DEPARTMENT FOR EUR/SE 
 
E.O. 12958: DECL: 05/18/2015 
TAGS: PGOV, PREL, PHUM, TU, OSCE 
SUBJECT: TURKEY WRESTLES WITH ECHR RULING QUESTIONING DUE 
PROCESS IN CONVICTION OF PKK TERRORIST LEADER OCALAN 
 
REF: A. ANKARA 2726 
     B. ANKARA 2525 
 
(U) Classified by Polcouns John Kunstadter; reasons E.O. 
12958 1.4 b and d. 
 
1. (C) Summary: Confusion and attempts to pass the buck among 
branches of government and between GOT and the Turkish State 
mark the Turkish reaction to European Court of Human Rights 
(ECHR) ruling that Turkey did not observe due process in 
interrogating and trying PKK terrorist leader Ocalan in 1999. 
 It is too soon to see which avenue the Turkish authorities 
will choose to respond to the ECHR ruling, but the lack of 
clarity reflects how far Turkey still is from rule of law and 
how much it remains mired in law of rule.  End summary. 
 
2. (C) In the wake of the May 12 ruling by the European Court 
of Human Rights (ECHR) Grand Chamber that convicted PKK 
terrorist leader Abdullah Ocalan did not receive a fair trial 
(reftels), it remains unclear how the Turkish authorities 
will handle the case.  Speculation has focused on a section 
of the ECHR's ruling that refers to "a retrial or a reopening 
of the case" as a judicial remedy.  Attorney contacts say 
there is no provision in Turkish law for "reopening" a case, 
and that such language has not been included in previous ECHR 
rulings against Turkey.  It is widely rumored that judge Riza 
Turmen, Turkey's ECHR representative, is responsible for 
including the reference. 
 
3. (U) According to some legal interpretations, a reopening 
of the case would not be significantly different from a 
retrial.  The court would hold sessions with witnesses, 
attorneys, and spectators.  The only difference would be that 
Ocalan would maintain the legal status of a convict, rather 
than a suspect with a presumption of innocence.  Other 
attorneys, however, argue that a court could meet the ECHR's 
requirements by reopening the case without holding a court 
session.  Under this scenario, judges would examine the case 
file to determine whether the violations noted by the ECHR 
could have changed the outcome of Ocalan's 1999 trial.  If 
they determine that the outcome would not have changed, the 
case would be closed.  Turmen seemed to be pointing in this 
direction during a May 16 TV interview in which he said a 
court could reopen the case without holding a trial. 
 
4. (U) Ocalan's attorneys have not yet applied to the Ankara 
Heavy Penal Court for a retrial; they have a one-year 
deadline to do so.  There is no official time limit for the 
court to respond to the application, meaning that Turkish 
authorities can delay the process while determining how to 
handle the case. 
 
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Comment 
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5. (C) A long-standing member of the Council of Europe, 
Turkey should theoretically be prepared to handle such a 
ruling.  But until 2002 it was not even possible to get a 
retrial in Turkey based on an ECHR ruling.  Opponents of the 
ruling AK Party (AKP), including the opposition Republican 
People's Party (CHP), President Sezer, and the military, are 
keen to use the ruling against AKP.  All have been making 
public statements portraying the ruling as a political attack 
on Turkey or trying to pin responsibility for action on AKP. 
 
6. (C) Conscious of the severe political and social tension 
that could grip Turkey if Ocalan gets a re-trail and uses the 
stand as a bully pulpit, AKP leaders are wary of 
acknowledging flaws in the 1999 trial or openly supporting 
the ECHR's authority to overrule Turkish courts.  AKP is 
trying to pass the buck to the judiciary.  Members of AKP's 
Islamist base are disturbed by the ruling, which they view as 
evidence that the court has political aims.  Noting that the 
ECHR has upheld the ban on headscarves in educational 
institutions and the closing of Islamist parties, they argue 
that the court favors Kurdish separatists but not Muslims. 
In short, the legal and political unease sparked by the 
Ocalan verdict reveals how far Turkey is from rule of law and 
how deeply the country is still mired in law of rule. 
EDELMAN