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).
1. 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.
2. 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.
3. 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".
4. 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 Kimyongür was not a
mere sympathiser or a member among
other members, but one of the leaders
of the organisation.
5. 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).
6. 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.
7. 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:: "In
the case of hearing testimony under
oath from Birsen Kars to prove inhuman
treatment of political prisoners in
the jails of Turkey and to prove a
case of necessity? The court is of
the opinion that testimony by B. Kars
[who was badly burned during the December
19, 2000 attack on Turkey's prisons,
editor's note] has nothing to do with
the charges against the accused and
it is not necessary to discover the
truth" (page 46).
8. 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)
9. 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.
10. 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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