US embassy cable - 03ANKARA1578

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. 
 
 
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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). 
 
 
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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. 
 
 
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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. 
 
 
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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