‘Ministers Committee cannot Change EHRC Verdict’
By Selcuk Gutasli, Ali Ihsan Aydin

Saturday 14, 2005
zaman.com

Opposition rises from Brussels to the comments that The European Court
of Human Rights (ECHR) left the conclusive verdict on the re-trial of
terrorist leader Abdullah Ocalan to the European Council Ministers
Committee.

According to diplomatic sources talking to Zaman, the Court wanted a
re-trial for Ocalan. The same sources, who said that the duty of the
Ministers Committee is not to comment on EHCR verdicts, warned: “the
EHCR Grand Chamber advised Turkey to re-try him or re-open the
case. This does not mean that the end result will differ in the case
of a re-trial.” But it is noted that Turkey can extend the process at
the Ministers Committee as it did before in the Titina Loizidou case,
and if the verdict is not applied, the European Council willexert
pressure on Turkey. The diplomatic sources in Brussels agree that the
best scenario for Turkey at this point is to re-try the PKK leader as
soon as possible. Reportedly, there have been comments such as ‘if
Turkey lobbies at the Ministers Committee and avoids trying him again
this will empower those opposed to in Europe’. Amanda Akcakoca, a
Turkey specialist at the European Policy Center (EPC), a highly
esteemed think tank in Brussels, claims that the best choice for
Turkey is to try Ocalan again as soon as possible It is disadvantageous
to even attempt to make the Ministers Committee make a different
decision. Akcakoca said that Turkey’s interpreting the EHCR verdict
as “not to try him again” or trying to make the Committee decide in
this way will lead people to think that “Turkey does not want to judge
anyone fairly.” She also said that Turkey has already lost prestige
over the Armenian Genocide and Cyprus issues. Akcakoca says there is
nothing to be afraid of since the verdict will not change even if
Ocalan is tried again and added that not retrying him will suggest
that nationalism is increasing in Turkey, and that it will not be seen
favorably European public opinion. She used Croatia as an example. The
EU delayed negotiations with Croatia because it did not surrender war
criminal GeneralGotovina and did give weight Zagreb’s claims that
surrendering him would increase nationalist sentiment in Croatia and
decrease support for EU membership. Diplomatic sources in Brussels say
that the best choice for Turkey is to try Ocalan as soon as
possible. A diplomat hinted that it is rather difficult for the
Ministers Committee to make a decision different from the EHCR and
that if Turkey tried for a different decision it would definitely not
work.

Two possibilities appeared in the process

1- Applying to the High Criminal Court in accordance with the decision
of ECHR, Ocalan’s lawyers demand continuation of the case (restitution
of the trial). The authority to decide (excluding some exceptions)
belongs to the court given the previous decision. Hereupon the High
Criminal Court decides if the restitution of the trial is admissible
or not “without a court hearing”. Ifthe Court decides to overrule the
claim, the terrorist leaders’ lawyers can give a “fast bill of
exception”. The method is provided in the Turkish Code of Criminal
Procedure (CMUK). Therefore, it will be sent to one of the Ankara High
Criminal Courts. The decisions arrived upon the rejection are
irrevocable. (In other words, in such a case Ocalan will be able to go
to the ECHR because he has used up the domestic legal options. If the
court decides the admission of the verdict, the case will be opened
then. The trial will restart and the decisions reached after the
trial, the aspects of which the ECHR mentioned will be taken into
consideration, will pass the regular process; its appeal will be
possible. Among these technical methods, there is one more possible
situation: If the demand for the restitution of the trial because of
ECHR’s verdict is rejected in the High Criminal Court due to the
exception item of CMUK and this rejection is approved in the court,
which will discuss this rejection of objection, Ocalan will then be
able to go to ECHR directly.

2- If the local court or the other high criminal court, which will
discuss the overruling the objection, brings the suit in the
Constitutional Court by claiming violation of article 90, this process
will be held to end. If the Constitutional Court approves the claim,
since the subject CMUK decision will be cancelled, the path to retrial
will be opened. In this case the trial will be operated in the frame
of the items in the first section. If the Constitutional Court decides
that there was no violation, the demand to continue the case will be
overruled by the local court, and in accordance with this verdict,
Ocalan’s lawyers will be able to go to the ECHR again.

International law expert Professor Rusen Ergec from ULB University in
Brussels warned the officials not to make statements like “he is
guilty anyway” about Ocalan while a possible retrial is a current
issue. Noting that no legal problem will occur if Ocalan is re-tried
by eliminating the procedural mistakes determined by the ECHR, found
guilty and given the same punishment, Ergec said: “If the authorities
state that about the person to be re-tried is guilty, this may give
rise to the claim of the violation of the second paragraph of article
6 of the European Convention on Human Rights. Then in the case
thatOcalan receives the same sentence again, it may be rejected
concerning this article.”

Brussels, Strasbourg

From: Emil Lazarian | Ararat NewsPress