An Analysis from inside the Courtroom by Asst. Prof. Adrien Deloro

Asst. Prof. Adrien Deloro from Institut de Mathématiques de Jussieu Université Pierre et Marie Curie has written an article based on his observations about the hearings of Academics for Peace. The following article covers the hearing helf before 36th Assize Court of Istanbul on January 10, 2019.

 

 

On the Hearings of January 10, 2019 before the 36th Assize Court (“The Turkish State vs. Academics for Peace”)

 

By: Adrien Deloro – January 2019

 

 On January 10, 2019, I attended as an observer the second hearings in the trials of five Turkish academics charged with terrorist propaganda after sign- ing the “Academics for Peace” petition. This is a report on the hearings.

 

Context elements

This section contains background material intended for people unfamiliar with the state of affairs.

Context—the observer. Adrien Deloro, 37, an assistant professor at Sorbonne University. I am neither a Turkish citizen nor a member of any international organisation related to the case or the events. I happen to know defendant No. 3 personally as we are close colleagues. Therefore I also knew some people in the audience.

I do not speak Turkish. The account of speeches below is based on (non-sworn) real-time translation which was provided to me in the courtroom. Background exposition reflects my personal understanding of the situation. In particular the decision to include references to the newspaper The Guardian, to the ngo Amnesty International, to the Academics for Peace website, and (albeit for very different reasons) to the ANFnews agency is my sole responsibility.

Context—the petition. The crumbling of the cease-fire between the Turkish State and pkk in July 2015 led to renewed violence in the south-east of Turkey. Tensions became even worse after the assassination of Tahir Elçi[i]. While pursuing wide military operations, the government imposed round-the-clock curfews in many cities of the region, also reportedly cutting off water and electricity supply in some cases[ii][iii][iv].

On January 11, 2016, a petition signed by around a thousand Turkish academics was an- nounced at a press conference. After this announcement the first signatories were quickly followed by another thousand. The petition was a call for peace in Kurdish provinces, more specifically demanding among other things:

  • that the Turkish State lift the curfews;
• that Turkish law and international treaties be respected and enforced; • that international observers be sent;
• that a roadmap to a lasting peace be created.

The full text of the petition is available in various languages at the following link: https: //barisicinakademisyenler.net/node/63.

Institutional response against the signatories was swift. Four of them denounced the starting criminalisation process of their initiative during a second press conference in March 2016; they were arrested a few days after and held in pre-trial detention until their first hearing, on April 22; which was also the date of the first trial against the Academics for peace. These criminal investigations were the first of a growing series[v].

Context—five trials among many. The five academics whose hearings I attended are, like many of their co-signatories, charged with making propaganda for a terrorist organisation—a crime punishable by imprisonment of one to five years (see Article 7/2 of the law on fight against terrorism of Turkey[vi]).

In the bill of indictment, the prosecution aims at establishing the following connection to a terrorist organisation.

On December 22, 2015, roughly three weeks before the petition was made public on January 11 of the following year, the Firat News Agency[vii]quoted kck Executive Council Co-President Besê Hozat/Hülya Oran who called on young Kurdish people to wage armed rebellion[viii]. The chronological vicinity of this call to Kurdish youth with the release of the petition is put forth by the prosecution as evidence that academics are actively helping the rebellion and supporting the pkk.

Also, the prosecution aims at proving that the petition is written in a style typical of pkk, alleging that it uses the controversial phrase “Kürdistan illeri” (Kurdistan provinces)[ix]. As the observer could see, the bill of indictment is based on a prosecution-made translation back into Turkish, of the official, Academic-made translation into English, of the Turkish original text of the petition. It is interesting to note that where the bill of indictment has “Kürdistan illeri”, the official English translation has “Kurdish provinces”, in a paragraph where the Turkish original(the only one endorsed by the signatories) uses no such phrase.

If the trial is to be based on admissible evidence, one of its important aspects is thus to determine whether the defendants (and more generally the signatories) were on orders from the terrorist group pkk.

And some subsidiary questions are left open by the act of indictment, as for instance whether academics of another country would be able to accuse their homeland of perpetrating “massacres”. More information in English, and in particular a translation of the bill of indictment, can be retrieved from the (non-neutral) site: https://afp.hypotheses.org/documentation/bill-of-indictment.

 

January 10, 2019, 14:30—Before the 36th Court

Stage directions. The Çağlayan Courthouse in Istanbul is commonly monumental: urban highway, dismal plaza, fake marble.

The inside of Courtroom No. 36. In the back, on the wall, a stylized portrait of Mustafa Kemal adjoins a flat cctv panel reflecting the room. On the stage, the three judges seem to hide behind their computer screens. Only the president (middle) will speak; throughout, the other two remain surprisingly silent and still. Sitting at their right hand (left, for the audience), and on the same raised platform, the prosecutor seems to hide as well. At parterre level, on the other side, sits the lawyer[x]. In the centre of the box, the court clerk and the defendant are almost face to face. The audience may use a few parallel benches by the entrance door.

The impression is neither solemn nor austere: the room has all the features of a soon lost modernity.

The hearings. The hearings took place in the Istanbul Çağlayan Justice Hall, before the 36th Court.

All five defendants were prosecuted for the same charges, by the same prosecutor, and shared the same lawyer. Although the afternoon technically consisted of five distinct cases, similarities are beyond obvious.

The judges were Hakan Özer (president), Onur Engin Deniz, and Merve Akyüz; the prosecutor, Hasan Adalı. Lawyer Meriç Eyüboğlu[xi]defended the five academics.

It was the second hearings in their cases. The first hearings (where the bills of indictment were read, and no defence was given) had taken place on October 31, 2018; no foreign observer was then present. On January 10 an audience of some forty persons exceeding the nominal capacity of the room. Except for a brief technical problem with the transcription system, there was no incident to report in a noticeably well-oiled procedure; nor was there any peculiar display of emotions besides brief laughter at one moment. The defendants were allowed to sit amidst the audience until called before the Court.

Initially scheduled for January 10 at 14:20, the hearing of the first defendant started at 14:30. Being called to the dock, he gave his defence. After him the lawyer spoke, followed by the prosecutor. Then the second defendant was called; after whose defence the lawyer remained silent, and the prosecutor read exactly the same prosecution charges. And so on for the next three.

It must be borne in mind that the lawyer spoke only once, after the first accused gave his defence, insisting that the indictment was the exact-same in the five different cases: whereas the prosecutor did read the exact-same bill of indictment five times. For simplicity this report therefore treats the cases unseparately. Also, I shall render the lawyer’s defence before the defendants’ speeches, and the prosecutor’s summing up for the prosecution after.

As said above, the account of all speeches below is based on real-time translation which was provided to me in the courtroom.

The lawyer’s speech. The lawyer shared by all defendants, Meriç Eyüboğlu, delivered her speech only once, after the first accused gave his defence (which I shall also sum up below). Ms. Eyüboğlu insisted that due to remarkable similarities in the five cases, there was little reason to repeat herself.

The speech lasted some twenty minutes.

The lawyer demanded the consolidation of actions, and underlined how thin the record was. She requested in particular the following.

  • Material proof that the December 2015 declarations by Hozat were orders given to the signatories, and if so, that these orders were followed. The only evidence sketched by the prosecution is chronological; there is in particular no proof of any contact. As a matter of fact, she continued, in the 15 entirely similar cases already judged by the 36th Court (which ended up in suspended sentences of 15 months), there was not the slightest evidence supporting this aspect of the indictment. 
At the moment of asking “Why don’t you finally show us your evidence?”, Ms. Eyüboğlu was addressing the judges, not the prosecutor; which managed to give the observer a second of doubt on how distinct were the roles on stage. 

  • Context elements on civil life in the south-east of Turkey in the end of 2015. 
The search for historical truth is possible only if freedom of expression is fully guaranteed; and freedom of expression includes the right to a legitimate, albeit harsh, criticism of the State, as in the strikingly parallel case of Dmitrievsky v. Russia[xii]. 


  • The historical question of what really happened during the curfews thus bears critical importance for the trial. Associations such as the uno, the ue, Doctors without Borders msf, all provided reports on the situation. Apparently, the Turkish government also ordered a report, which has not been made public. This, added the lawyer, raises legitimate questions on the nature of the 2015, south-east events.

Yet Ms. Eyüboğlu concluded her speech by recalling that in the past, Judge Özer had already dismissed these requests.

Judge Özer dismissed the requests.

The defences. The five academics on trial based their defences on their professional expertise and methods.

  • Defendant No. 1 gave a brief defence. He insisted that he always rejected any form of violence, but that in conscience had to sign, after receiving notice of the violations of human rights, and the killing of civilians. 
[The judge asked whether Defendant No. 1 would accept a possible suspension of sentence (I shall elaborate on this below); the defendant used his right to decide only later.] 
[Only then did the lawyer give her speech above, followed by the prosecutor whose is below.] 

  • Defendant No. 2 spoke for fifteen minutes. An expert in childhood education, she felt compelled to sign since she was informed that the events had resulted in numerous violations (notably in terms of access to education) of the Convention on the Rights of the Child, and Turkey was a party to this convention. She had done her duty as a citizen, not on any orders, and requested immediate acquittal. 
[At some point the lawyer took the opportunity to ask that reports issued by the Diyarbakır Bar Association[xiii]be included in the record.] 
[Then the lawyer added nothing to her first speech. The prosecutor gave his exact same.] 

  • Defendant No. 3 gave the longest defence, involving logic, epistemology and history. As a professional mathematician, she criticised the lack of evidence in the bill of indictment, which confuses correlation and causality. The burden of proof of inexistenceof any impact of Hozat’s declarations should not be shifted to the defendants. 
She also mentioned that the situation of academics or intellectuals calling for peace, at the cost of criticising their government, is not unprecedented: the French 121, during the war in Algeria; Harvard University, during the Vietnam war; then Israel academics after the “Nation-State” law was first proposed. Charges, if any, were always dropped. 
Summing up, she had acted in conscience and found insulting the mere suggestion that she could abdicate her critical spirit to the orders of someone she did not even know. 
An English translation of her defence can be found at this link.
[The lawyer added nothing to her first speech. The prosecutor gave his exact same.] 

  • As an artist, Defendant No. 4 opted for a non-verbal defence: a pull-over on which she had painted the word “peace” in a dozen languages. Peace was the only thing she had ever wanted, and she asked for acquittal. 
[The lawyer added nothing to her first speech. The prosecutor gave his exact same.] 

  • Defendant No. 5 spoke some twenty minutes. She first commented on the fact that the country was steadily regressing in terms of human rights indicators. Then she underlined the comparison with the events in the nineties: a citizen’s duty is to remember, and to speak. While also mentioning the damage on urban cultural heritage and history, she insisted on all deprivations resulting from the curfews, with the consequent civilian losses. It was therefore her citizen’s right to sign, and she cannot accept the charges. 
[The lawyer added nothing to her first speech. The prosecutor gave his exact same.]

Summing up for the prosecution. Each time, in response, the prosecutor read a short text. It began with a brief story of the Kurdish guerilla and its aims. Then in 2015 came an uprising and declarations of self-governance; to which the State had to put order. Turkish security forces were acting legally, and the accused called this legal action a “crime”, even using the term “massacre”. The petition, thus serving the pkk’s interests, fell under Article 7/2 of the law on the fight against terrorism of Turkey.

The lawyer observed and had put on record that the prosecutor responded to each of the five defences by reading the exact same text, thus hardly taking the defences and specifics of each case into account.

Speculations on the outcome. The third hearings are scheduled on April 2nd.
As the observer understands, the most common outcome in similar cases[xiv], hence also the most likely in this one, is that it will then be the final hearing and the trial will come to a conclusion. It is likely that the five academics will be sentenced to 15 months of jail, and will be offered suspension of the sentence (this is a technical possibility in Turkish law for a sentenceless than 2 years).
To accept suspension would mean notto serve any time in prison, to keep their criminal

records empty, and thus to be able to keep their (civil-servant) academic positions—provided they would not be convicted of a similar crime within the next five years. It would also imply losing the right to appeal the sentence; there would remain the possibility to appeal to the Turkish Constitutional Court, but this would not break the verdict.

This outcome is likely not only because the sentence has already been pronounced 69 times in the Çağlayan Courthouse, where 18 distinct Courts deal with quite comparable cases (Istanbul only; we are not counting provincial Courts). It is likely because the 36th Court itself has already given this exact sentence 15 times. And the said 36th Court still has 55 entirely similar cases to judge.

At least this forecast was discussed while the defendants and a large fraction of the audience (including the observer) were enjoying a glass of tea, in a restaurant facing the monumental courthouse.

As of January 11, 2019, that is on the third anniversary of the petition, 571 signatories are or have been on trial. This amounts so far to a total 1080 hearings; so far 130 sentences have been pronounced.

Taking suspensions and deferments into account, the result is already more than a hundred years of jail for the “Academics for Peace”[xv][xvi].

[i]https://www.theguardian.com/world/2015/nov/29/turkish- human- rights- lawyer- shot- dead- during- press- conference

[ii]https://www.theguardian.com/world/2015/dec/14/seven- people- killed- in- turkey- amid- protests- against- curfews

[iii]https://www.amnesty.org/en/latest/news/2016/12/turkey- curfews- and- crackdown- force- hundreds- of- thousands- of- kurds- from- their- homes/

[iv]https://www.amnesty.org/en/documents/EUR44/3178/2016/en/

[v]https://www.theguardian.com/world/2016/jan/15/turkey- rounds- up- academics- who- signed- petition- denouncing- attacks- on- kurds

[vi]https://www.legislationline.org/documents/id/16875


[vii]Amsterdam-based, Kurdish news agency ANFnews is often regarded as close to pkk, or even pro-pkk.

[viii]https://anfturkce.com/guncel/hozat- demokrasi- gucleri- ayaklanarak- oz- yonetimlere- sahip- cikmali-60795 (not available in English)


[ix]There no longer is a law forbidding use of the word “Kurdistan” in Turkish. But Article 1 of the law on fight against terrorism (see footnote No. 6) includes in its definition of terrorism “any criminal action conducted by one or more persons belonging to an organisation with the aim of [. . . ] damaging the indivisible unity of the State with its territory and nation […]”.

[x]The echr has repeatedly confirmed that this symbolic staging (which is not specific to Turkey) is not contrary to the principle of equality of arms.

[xi]An interview of whom, in her quality of a lawyer, can be read here: https://afp.hypotheses.org/218.

[xii]A reader not familiar with the case may have a quick glance at http://www.omct.org/human- rights- defenders/defend- defenders/StanislavDmitrievsky- portrait- of- a- Human- rights- defender- in- /, https://www.fidh.org/en/region/europe- central- asia/russia/russian- federation- end- of- the- judicial- harassment-faced-by-mr-stanislav-13625 and http://hudoc.echr.coe.int/eng?i=001-177214

[xiii]The association is currently under investigation based on Article 301 of the Turkish Penal Code: it is illegal to “insult Turkey, the Turkish nation, or Turkish government institutions”—https://en.wikipedia.org/wiki/ Article_301_(Turkish_Penal_Code).

[xiv]Added on proof, February 1st—one should read footnote No. 16.


[xv]https://barisicinakademisyenler.net/node/314

[xvi]Added on proof, February 1st—figures increase dramatically, not only because more sentences are given. There are now instances of 25 month sentences, a term which technically rules out the possibility of a suspension. Worse: on January 24th, after a stormy hearing, one signatory was sentenced to three years. The defence claims that they were not allowed to speak. Even from a non-neutral website, the following report is alarming: “After an argument with Demir’s attorney Meriç Eyüboğlu, the presiding judge ordered the attorney out of the court hall.” More details on (non-neutral) http://bianet.org/english/freedom-of-expression/204814-3- year- prison- sentence- not- deferred- we- gave- a- 2- year- sentence- then- increased- it- to- 3- years.

 


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