US embassy cable - 03ANKARA3738

C O N F I D E N T I A L SECTION 01 OF 02 ANKARA 003738 
 
SIPDIS 
 
 
DEPARTMENT FOR EUR/SE 
 
 
E.O. 12958: DECL: 06/10/2008 
TAGS: PGOV, PREL, PHUM, TU 
SUBJECT: PROSECUTOR OPENS TWO CASES AGAINST WRITER FOR 
10-YEAR-OLD WORKS 
 
 
REF: A. 02 ANKARA 6116 
     B. ANKARA 2909 
 
 
(U) Classified by acting Politcal Counselor Nicholas S. Kass. 
 Reason: 1.5(b)(d). 
 
 
1. (C) Summary:  An Ankara prosecutor has opened two cases 
against writer and scholar Fikret Baskaya for works 
originally published 10 years ago.  One of the cases involves 
a book for which Baskaya was convicted and imprisoned in 
1994; the European Court of Human Rights later ruled in 
Baskaya's favor in the case.  A Justice Ministry contact said 
Minister Cicek opposes the indictments; he also averred that 
training programs and precedent-setting appeals court rulings 
will gradually prevent such cases in the future. 
Nevertheless, a human rights attorney argued that despite 
such good intentions, the GOT judicial bureaucracy is 
unwilling to discipline prosecutors who abuse their 
authority.  End Summary. 
 
 
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Prosecutor Opens Two Cases Against Writer 
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2. (U) An Ankara State Security Court (SSC) prosecutor in May 
opened two separate court cases against Fikret Baskaya: 
 
 
-- One case is related to the new edition of Baskaya's book, 
"Collapse of the Paradigm: An Introduction to the Criticism 
of the Official Ideology."  Baskaya in 1993 was convicted for 
the original publication of the book, and served 15 months in 
prison in 1994-95.  The European Court of Human Rights (ECHR) 
later ruled that Baskaya's conviction violated the European 
Convention on Human Rights and ordered compensation.  As in 
the 1993 trial, Baskaya is now charged with violating Article 
8 of the Anti-Terror Law, which outlaws "written and oral 
propaganda...aimed at damaging the indivisible unity of the 
State."  If convicted, he could be sentenced to 2-5 years 
imprisonment. 
 
 
-- The other case is related to the re-publishing of an 
article Baskaya wrote in 1993 about the Sivas Massacre, which 
took place that year (involving the deaths of some 37 Turkish 
Alevis in a hotel fire set by rioting Sunnis).  The article 
is included in a new book of selected writings.  Baskaya was 
not charged when the article was first published in 1993, but 
now stands accused of violating Article 159 of the Turkish 
Penal Code, which forbids speech that insults the State or 
its institutions.  If convicted, he could be sentenced to 1-6 
years imprisonment. 
 
 
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Embassy Raises Concerns 
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3. (C) On June 6 we raised concerns about these cases with 
Abdulkadir Kaya, Ministry of Justice Director General for 
International Relations.  We noted that the GOT has adopted 
wide-ranging legal reforms over the past two years in its 
efforts to qualify for EU membership.  Outside observers were 
encouraged by these efforts, and had hoped that these types 
of speech cases would end.  Unfortunately, the charges 
against Baskaya raise doubts about the depths of the reforms 
related to free speech.  Baskaya is being charged for works 
published years ago, and is being retried for his "Paradigm" 
book despite having won his case in the ECHR.  We noted that 
the GOT revised Article 159 in August 2002 (reftel A) and was 
considering revoking Article 8 (reftel B), but prosecutors do 
not appear to have changed their practices. 
 
 
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MOJ: Reforms Need Time 
---------------------- 
 
 
4. (C) Kaya said he is "puzzled" by the indictments, 
particularly in light of the ECHR ruling.  He noted that the 
GOT has been criticized for failing to abide by ECHR rulings 
and this case will only complicate matters.  Kaya said he 
discussed both cases with the prosecutor, who asked him for a 
Turkish translation of the ECHR ruling.  He said judges and 
prosecutors in Turkey are generally uninformed about the 
latest reforms and ECHR rulings.  The Justice Ministry is 
addressing the problem with a series of seminars, focused 
particularly on SSC judges and prosecutors, but it will take 
time to change attitudes.  He said the SSC will likely 
convict Baskaya, but predicted the rulings will be overturned 
on appeal.  He said appeals court judges tend to be more 
attuned to the reform process, and their rulings gradually 
set precedents for the lower courts.  In the immediate term, 
"there is not much the Justice Ministry can do," he said. 
"Prosecutors and judges are independent" and there is no 
restriction against prosecuting someone for writings 
published years ago, regardless of ECHR decisions. 
 
 
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Human Rights Lawyer: Prosecutors Should be Held Accountable 
--------------------------------------------- -------------- 
 
 
5. (C) Yusuf Alatas, attorney and Human Rights Association 
vice chairman, had a different view when we discussed the 
Baskaya cases with him June 9.  Alatas argued that "judicial 
independence does not mean prosecutors and judges are 
responsible to no one."  He noted that the Supreme Board of 
Judges and Prosecutors has the formal authority to sanction 
judicial officials who act improperly, and averred that the 
Board could prevent these types of "harassment" cases if it 
so chose.  The problem, he said, is due primarily to two 
factors: 1) the Board is dominated by "nationalist" jurists 
-- along with, he asserted, a significant "Islamist" minority 
-- and its members tend to oppose EU membership and human 
rights reform; and 2) the Justice Minister and his 
Undersecretary, who are Board members, have the power to 
change the Board's approach, but are unwilling to use it. 
 
 
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Comment 
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6. (C) These two, simultaneous cases against Baskaya are the 
latest reminder that the GOT's impressive legislative reforms 
have not changed the practices of a powerful bureaucracy 
obsessed with perceived threats to the State.  The case 
against the "Paradigm" book is particularly troubling because 
it reflects a continued disregard for the ECHR among Turkish 
judges, an attitude that in the past has raised doubts about 
Turkey's EU qualifications. 
PEARSON