DHKP-C case in Belgium: defence arguments in successful appeal
(Four people convicted of DHKP-C membership have been released from prison after the appeal judge on April 19 noted serious irregularities in their trial, presumably taking into account the defence arguments outlined here, in the website of CLEA, a Belgian civil liberties organisation. The prosecutor is in trouble, it seems, as he influenced the choice of judge, thereby ensuring that the defendants did not get a fair trial.)
From www.leclea.be
Translated from French
The judgement of the Final Court of Appeal in the "DHKP-C affair" will be rendered on Thursday 19 April at noon in the Brussels Palace of Justice
Here are the main arguments advanced by the lawyers of those who were convicted:
As you know: through a scandalous and disgraceful appeal judgement on November 7, 2006, seven presumed members of the DHKP-C were sentenced to heavy prison terms – for membership of an organisation described by the tribunal as "fanatical, criminal and terrorist". So four of the accused (among them Fehriye Erdal) were sentenced to four years; Bahar Kimyongur was given five years of close imprisonment; Musa Asoglu and Dursun Karatas (translator's note: the latter is DHKP-C leader and was not in court) were given seven years.
As the two trials of their clients had been marred by a number of irregularities, their lawyers pursued the case to the Final Court of Appeal. In their deposition, issued just 14 days after the verdict, the lawyers Carl Alexander (for Kimyongur), Paul Bekaert (for Erdal), Jan Fermon (for Asoglu), Raf Jespers (for Erdal), Nadia Lorenzetti (for Akar) and Ties Prakken (for Karatas and Sari) – put forward no less than 20 reasons for the verdict to be quashed.
(Caption to photo in original website) On March 27, Sukriye Akar was handcuffed throughout the hearing. On Tuesday April 17, when the police refused to remove her leather waist harness which resembled a torture instrument she decided to leave the court, so as not to attend the trial and show her disapproval of such a decision.
Here in summary are the main objections the lawyers put to the president of the tribunal of secondary instance J. Logghe and to the two assessors T. Denys and J. Libert (understanding well that had been supported whenever they hit below the belt by the federal
magistrate Johan Delmulle).
— The Court of Appeal of Ghent had been completely wrong to ratify the establishing of an extraordinary tribunal at Bruges. The happened through letting the judge Freddy Troch of Termonde preside over it in the first instance, as judge and as president of the correctional
tribunal.
To be sure that the tribunal of the first instance would succeed in establishing a judicial reality at its most implacable, a section of the senior magistrates of Flanders actually made themselves accomplices in a major power grab: to make the 14th chamber of the penal tribunal at Bruges into an extraordinary special court. This was achieved the order dated November 4, 2005 from the first president of the Ghent Court of Appeal (Jean-Paul De Graeve) by designating Freddy Troch, judge at Termonde, to preside over "trying the Erdal affair", to give it the required twist and degree of tension desired.
From that point on, the independence of the tribunal was highly dubious: the judge Freddy Troch, had copme specially to Bruges to preside over this business, and had been appointed on the advice of the Floor (the procurator-general of the Ghent Court of Appeal), who was in charge of the prosecution and so a party to the case, just as much as the defendants. So one party was contributing to deciding by whom the case would be judged. This was unacceptable to the defence. What is more, in its response to the predictable complaints voiced by the lawyers of the accused, the judgement of the appeal dared to
claim (page 37), against all common sense that the _expression tijdelijk (which means "temporarily") "carries the implication, according to Article 98,of "provisionally", which can apply as well to a particular term as to a particular trial (sic)»… An interpretation evidently unfounded.
— Neither at Bruges nor at Ghent was the public character of the hearing guaranteed. Ultra-high security measures were brought in by the police which undoubtedly deterred people who would otherwise have come to attend the trial. Through these unusual security measures, the press and TV could not follow the sessions of the trial, either in the first instance or in the Court of Appeal.
So at the first hearing in Ghent, on Monday, September 11, 2006, more than a hundred sympathisers were right away obliged to pass through a metal detector. Some had to remove their shoes, or remove necklaces or bracelets. Then they were required to hand in their ID cards (which were photocopied twice)… About 100 people whose seats in the hall were designated by the police on ethnic grounds: Turks, or those who appeared to be, at the back; whites in front, in the first seven rows. You would think it was a dream, but it wasn't.
— The Court of Appeal at Ghent and the Correctional Tribunal of Bruges were completely wrongly declared to be competent venues for a purely political trial. Only the Court of Assizes should have been used.
According to the defence, since it was about crimes of an eminently political nature, article 150 of the Constitution stipulated that only the Court of Assizes was competent to judge them. The Court of Appeal rejected this argument on the grounds that the crimes of the
DHKP-C "have not directly affected Turkish political institutions". "The fact of carrying out attacks on persons (principally police officers, judges, industrialists) and buildings
(police stations, courts etc…) do not in themselves affect the action and organisation of political and legislative institutions or menace the organisation of the state" (page 35).
However, in the same judgement of November 7, 2006, on various occasions it is specified that the aim of this organisation is to "overthrow the Turkish state by means of armed struggle".
From www.leclea.be
Translated from French
The judgement of the Final Court of Appeal in the "DHKP-C affair" will be rendered on Thursday 19 April at noon in the Brussels Palace of Justice
Here are the main arguments advanced by the lawyers of those who were convicted:
As you know: through a scandalous and disgraceful appeal judgement on November 7, 2006, seven presumed members of the DHKP-C were sentenced to heavy prison terms – for membership of an organisation described by the tribunal as "fanatical, criminal and terrorist". So four of the accused (among them Fehriye Erdal) were sentenced to four years; Bahar Kimyongur was given five years of close imprisonment; Musa Asoglu and Dursun Karatas (translator'
As the two trials of their clients had been marred by a number of irregularities, their lawyers pursued the case to the Final Court of Appeal. In their deposition, issued just 14 days after the verdict, the lawyers Carl Alexander (for Kimyongur), Paul Bekaert (for Erdal), Jan Fermon (for Asoglu), Raf Jespers (for Erdal), Nadia Lorenzetti (for Akar) and Ties Prakken (for Karatas and Sari) – put forward no less than 20 reasons for the verdict to be quashed.
(Caption to photo in original website) On March 27, Sukriye Akar was handcuffed throughout the hearing. On Tuesday April 17, when the police refused to remove her leather waist harness which resembled a torture instrument she decided to leave the court, so as not to attend the trial and show her disapproval of such a decision.
Here in summary are the main objections the lawyers put to the president of the tribunal of secondary instance J. Logghe and to the two assessors T. Denys and J. Libert (understanding well that had been supported whenever they hit below the belt by the federal
magistrate Johan Delmulle).
— The Court of Appeal of Ghent had been completely wrong to ratify the establishing of an extraordinary tribunal at Bruges. The happened through letting the judge Freddy Troch of Termonde preside over it in the first instance, as judge and as president of the correctional
tribunal.
To be sure that the tribunal of the first instance would succeed in establishing a judicial reality at its most implacable, a section of the senior magistrates of Flanders actually made themselves accomplices in a major power grab: to make the 14th chamber of the penal tribunal at Bruges into an extraordinary special court. This was achieved the order dated November 4, 2005 from the first president of the Ghent Court of Appeal (Jean-Paul De Graeve) by designating Freddy Troch, judge at Termonde, to preside over "trying the Erdal affair", to give it the required twist and degree of tension desired.
From that point on, the independence of the tribunal was highly dubious: the judge Freddy Troch, had copme specially to Bruges to preside over this business, and had been appointed on the advice of the Floor (the procurator-general of the Ghent Court of Appeal), who was in charge of the prosecution and so a party to the case, just as much as the defendants. So one party was contributing to deciding by whom the case would be judged. This was unacceptable to the defence. What is more, in its response to the predictable complaints voiced by the lawyers of the accused, the judgement of the appeal dared to
claim (page 37), against all common sense that the _expression tijdelijk (which means "temporarily"
— Neither at Bruges nor at Ghent was the public character of the hearing guaranteed. Ultra-high security measures were brought in by the police which undoubtedly deterred people who would otherwise have come to attend the trial. Through these unusual security measures, the press and TV could not follow the sessions of the trial, either in the first instance or in the Court of Appeal.
So at the first hearing in Ghent, on Monday, September 11, 2006, more than a hundred sympathisers were right away obliged to pass through a metal detector. Some had to remove their shoes, or remove necklaces or bracelets. Then they were required to hand in their ID cards (which were photocopied twice)… About 100 people whose seats in the hall were designated by the police on ethnic grounds: Turks, or those who appeared to be, at the back; whites in front, in the first seven rows. You would think it was a dream, but it wasn't.
— The Court of Appeal at Ghent and the Correctional Tribunal of Bruges were completely wrongly declared to be competent venues for a purely political trial. Only the Court of Assizes should have been used.
According to the defence, since it was about crimes of an eminently political nature, article 150 of the Constitution stipulated that only the Court of Assizes was competent to judge them. The Court of Appeal rejected this argument on the grounds that the crimes of the
DHKP-C "have not directly affected Turkish political institutions"
(police stations, courts etc…) do not in themselves affect the action and organisation of political and legislative institutions or menace the organisation of the state" (page 35).
However, in the same judgement of November 7, 2006, on various occasions it is specified that the aim of this organisation is to "overthrow the Turkish state by means of armed struggle".
— The Court of Appeal in its judgement undermined freedom of _expression, freedom of association and freedom to assemble.
The law on criminal organisations adopted in 1999 created (in an unprecedented manner) a crime of membership. Even if you have committed no act contrary to the laws, the simple fact of belonging to an organisation declared to "criminal" makes you a criminal who can serve a prison term.
Moreover, for the crime of membership peculiar to the law on criminal organisations, the legislation on terrorist crimes (December 2003) substitutes to a degree a crime of "sympathy" that is even more pernicious: any act of "solidarity" can serve to establish your
undoubted membership of an organisation banned by the judiciary. So the judicial system worked hard, in the case of Bahar Kimyongur for example, to establish undeniable membership of the DHKP-C, a movement described as a "band of malefactors, a criminal association and a terrorist organisation". So appeals to local authorities prior to holding public demonstrations (denouncing the conditions of detention to which political prisoners are subjected in Turkey) were not treated as using a legal and democratic right: these repeated appeals (moreover, received and accepted) were interpreted by the court as indubitable proof that Kimyongur was not a mere sympathiser or a member among other members, but one of the leaders of the organisation…!
— The Court of Appeal at Ghent notably found the defendants guilty of acts not committed in Belgium and not committed by themselves. Amongst other things, they were condemned for actions which happened decades or more before. Some of the accused had not even been born or were very young children at the time of the acts.
To prove that the DHKP-C is a "terrorist" organisation, the court did not hesitate to use actions or elements occurring in other countries (Turkey, Germany, the Netherlands…) and periods of time other than those covered in the period people were being tried for (for example, acts which took place in the 1970s, when some of those charged had not been born or were still children). For the defence, this is a manifest violation of the tribunal's "scope", that is to say, the principle that the tribunal only deals with actions committed during a particular period and on the territory relevant to the citation (here, Belgium).
— The court used penal laws which did not exist at the time of the acts.
Moreover, for the crime of membership peculiar to the law on criminal organisations, the legislation on terrorist crimes (December 2003) substitutes to a degree a crime of "sympathy" that is even more pernicious: any act of "solidarity" can serve to establish your
undoubted membership of an organisation banned by the judiciary. So the judicial system worked hard, in the case of Bahar Kimyongur for example, to establish undeniable membership of the DHKP-C, a movement described as a "band of malefactors, a criminal association and a terrorist organisation"
— The Court of Appeal at Ghent notably found the defendants guilty of acts not committed in Belgium and not committed by themselves. Amongst other things, they were condemned for actions which happened decades or more before. Some of the accused had not even been born or were very young children at the time of the acts.
To prove that the DHKP-C is a "terrorist" organisation, the court did not hesitate to use actions or elements occurring in other countries (Turkey, Germany, the Netherlands…) and periods of time other than those covered in the period people were being tried for (for example, acts which took place in the 1970s, when some of those charged had not been born or were still children). For the defence, this is a manifest violation of the tribunal's "scope", that is to say, the principle that the tribunal only deals with actions committed during a particular period and on the territory relevant to the citation (here, Belgium).
— The court used penal laws which did not exist at the time of the acts.
The law on criminal organisations was adopted in January 1999 and the legislation on terrorist crimes was adopted in December 2003. Like all legislation, these cannot be applied retroactively.
— Judicial investigation was entirely in favour of the prosecution. The court rejected all petitions for investigation favourable to the accused. So the trial could hardly be called "fair".
In reality, judicial investigation rather quickly left the hands of the judge in Bruges and was taken up by the gendarmerie and the federal procurator. This was reflected in the way the file was closed, when all the duties of investigation were accomplished by Judge Buysse. Just before the file was sent to the Chamber of Council, it – also sent to the parties and to the public ministry – went on to be completed by the federal magistrate: Johan Delmulle
added his own remarks and as regards the charge against the defendants as an association of malefactors, he added eight words: "… in view of carrying out attacks in Turkey". This last minute reformulation (which gave the Turkish state an opening to be counted as a civil party) had an immediate result: it introduced a distortion in the proceedings, manifestly undermining their regularity. Because investigations had not included investigation in Turkey, the reformulation is not impartial, because it is partial.
In the appeal judgement, the judges in Ghent fostered this instrumentalising of procedures and the alleged impossibility of carrying out supplementary investigation:
— The court totally removed acts from their context. The court obstinately refused to examine human rights in Turkey and include these in their judgement.
The defence cited a "case of necessity", arguing that the accused and their political movement in Turkey conducts a struggle, in part violent, in reaction to the violence of the state – a regime dominated by the Army. Since the Second World War, Turkey has experienced three military coups (the last introduced a terrifying dictatorship which led to 650,000 people being arrested in the 1980s). In reality, behind a democratic façade, the military still hold the reins of power. Turkey holds the record for violations of the European Convention on Human Rights (75% of complaints to the court in Strasbourg concern this country) and it has thousands of political prisoners in its jails. The judges in Ghent did not want to think about that: "That certain Turkish authorities would resort to illegal means to avenge themselves… is not relevant to the judgement of the acts the accused have been charged with". (page 44)
— Both the Correctional Tribunal in Bruges and the Court of Appeal in Ghent gave vent to thoroughly political opinions (respectively in their judgement and in the appeal judgement).
The appeal court went on to develop – over entire pages – a thoroughly partial viewpoint, describing the DHKP-C (with a view to discrediting it) as an "extremist" Communist or Marxist-Leninist movement.
The Court of Appeal in Ghent constantly sought to deny the essentially political nature of the matter it had to judge. While using political considerations to disparage the ideology of the
accused.
— The Turkish state could not be a civil party
To let Kris Vincke plead – from the start of the trial to the Appeal stage – in the name of Turkey (while in its judgement of February 28, 2006, the Bruges tribunal had finally declared its constitution as a civil party unfounded "The Turkish state has not incurred individual damages")…? This was favoured by Judge J. Logghe –instituting a court of appeal with three judges and (a real first) two procurators. In fact, within the tribunal the federal magistrate represented the general interest, society. Now the Turkish state had not bothered to detail the damage it had incurred, Vincke was a second magistrate for it, defending "the general interest". Which could not be.
In reality, for its position as civil party to be accepted, the Turkish state not only had to make a demand ofr reparation but also had to show how it had been "personally" affected. The demand by a physical or a legal person cannot be accepted if that person does not
have a personal and direct interest to be valued. In fact Turkey never explained in a case by case way what damage in particular (direct damage, material or moral) it had suffered through acts to be laid to the charge of the accused, or to the organisation they were
accused of leading or of being its members.
The defence cited a "case of necessity", arguing that the accused and their political movement in Turkey conducts a struggle, in part violent, in reaction to the violence of the state – a regime dominated by the Army. Since the Second World War, Turkey has experienced three military coups (the last introduced a terrifying dictatorship which led to 650,000 people being arrested in the 1980s). In reality, behind a democratic façade, the military still hold the reins of power. Turkey holds the record for violations of the European Convention on Human Rights (75% of complaints to the court in Strasbourg concern this country) and it has thousands of political prisoners in its jails. The judges in Ghent did not want to think about that: "That certain Turkish authorities would resort to illegal means to avenge themselves… is not relevant to the judgement of the acts the accused have been charged with". (page 44)
— Both the Correctional Tribunal in Bruges and the Court of Appeal in Ghent gave vent to thoroughly political opinions (respectively in their judgement and in the appeal judgement).
The appeal court went on to develop – over entire pages – a thoroughly partial viewpoint, describing the DHKP-C (with a view to discrediting it) as an "extremist" Communist or Marxist-Leninist movement.
The Court of Appeal in Ghent constantly sought to deny the essentially political nature of the matter it had to judge. While using political considerations to disparage the ideology of the
accused.
— The Turkish state could not be a civil party
To let Kris Vincke plead – from the start of the trial to the Appeal stage – in the name of Turkey (while in its judgement of February 28, 2006, the Bruges tribunal had finally declared its constitution as a civil party unfounded "The Turkish state has not incurred individual damages")…? This was favoured by Judge J. Logghe –instituting a court of appeal with three judges and (a real first) two procurators. In fact, within the tribunal the federal magistrate represented the general interest, society. Now the Turkish state had not bothered to detail the damage it had incurred, Vincke was a second magistrate for it, defending "the general interest". Which could not be.
In reality, for its position as civil party to be accepted, the Turkish state not only had to make a demand ofr reparation but also had to show how it had been "personally" affected. The demand by a physical or a legal person cannot be accepted if that person does not
have a personal and direct interest to be valued. In fact Turkey never explained in a case by case way what damage in particular (direct damage, material or moral) it had suffered through acts to be laid to the charge of the accused, or to the organisation they were
accused of leading or of being its members.
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