Zaman, Turkey
May 14 2005

Ocalan Should be Retried, but…

ERHAN BASYURT
05.14.2005 Saturday – ISTANBUL 16:37

Turkey’s sentence has been finalized by the European Court of Human
Rights (ECHR) one more time. It has been confirmed that the head of
the Kurdistan Workers’ Party (PKK) terrorist organization, Abdullah
Ocalan, did not receive a fair trial and that he was denied his right
to defense.

Turkey being sentenced in such an important case, in which the eyes
of the whole world were on us and the ECHR path was open for us, is
“dishonorable” for our legal system. It has been witnessed once again
that the basis of property justice was not maintained at the
appropriate level, according to the criteria of the European
Convention on Human Rights.

For sure, the political dimensions of the decision taken can be
discussed. Among members of the Grand Chamber, which has 17 judges,
there is one Armenian, one Greek and one Greek Cypriot. But in the
voting on the violation of the right to defense, it is reported that
Turkish judge Riza Turkmen also voted against Turkey. That is to say,
besides politics, there were also issues of negligence, limitations
that are not legal.

The ECHR is an interesting point in which globalization has dragged
Turkey into. It can be considered as a period of protecting the
independence the judiciary and its supervision over above
nation-states. Among judges who heard the Ocalan appeal, were a
member each from East bloc countries such Georgia, Poland and Ukraine
and from countries like Sweden, Switzerland, Denmark, Britain,
Germany, France, Spain and Ireland. The decisions they made bind
Turkey. To be more precise, if Turkey does not carry out a fair
trial, most probably, it will come face to face with double pressure
from the European Council and European Union (EU). As in the [Titina]
Louzidou case, sooner or later, Turkey will be left with no choice
but to implement this decision.

It would be more appropriate for Turkey, with self-confidence, to
take appropriate steps and ensure the perfect realization of justice
rather than act under pressure from Western countries and the EU.
Even if the person to be retried is a blood-stained terrorist, he
must be able to exercise his right to defense as stipulated by the
law. The ECHR decision makes no comments on the punishment given to
Ocalan anyway. It also admits that there was no negligence in the
detention conditions. Therefore, the best thing to is take over this
new trump card Ocalan has in hand and then sentence him to the
punishment he deserves with a fair trial.

Hence, the PKK can be stopped from using the ECHR decision as a
verdict of “innocence” and exploiting it for terrorist activities.
There are claims that the terrorist organization has imported
something like 750 kg. of C-3 and C-4 explosives, into the country
recently. The terrorist group using these explosives as blackmail,
for “its leader to be granted a fair trial,” can also be blocked.

It wouldn’t be the right method, as the opposition claims, to try
hinder retrial attempts by the Ministerial Committee of the European
Council. Since the negligence in defense determined by the ECHR about
the procedure cannot change the decision relating to the case itself,
ways of escaping should not be sought but rather ways of making
amends. It is possible for the retrial of Ocalan to be exploited by
some circles but it makes no sense for the Justice and Development
Party (AKP) to act so defensively over a period that has nothing to
do with the party itself.

Finally, the Ocalan verdict is only one of the thousands of decisions
the ECHR has made on Turkey. Ankara has experienced shocks because of
flawed trial decisions in many verdicts so far. Furthermore, huge
sums have been paid as compensation to those wronged. Instead of
constantly giving political messages and triggering a crisis, those
at the top of the Turkish judiciary should try to introduce methods
that would clear up this bad image on the Turkish legal system. Then
neither the citizens nor the big guns in the judiciary would need to
take refuge in the ECHR as a last resort.

It should not be forgotten that what harms Turkey is not the retrial
of Ocalan, but our legal infrastructure which lays the foundation for
this.