Jailed Kurdish leader Demirtaş stumped by Turkey’s ‘empty’ indictment - Demirtaş’s lawyer

Selahattin Demirtaş, the former leader of Turkey’s second-largest opposition party who has been in prison since 2016, is facing new charges related to a series of street protests in 2014, along with at least 108 members of his pro-Kurdish Democratic Peoples’ Party (HDP).

Demirtaş and his co-chair at the time, Figen Yüksekdağ, are each facing 38 counts of life in prison and an additional 19,680 years in prison for allegedly inciting the Kobani incidents in October 2014, when security forces and protestors clashed during mass protests in Turkey's majority-Kurdish southeast, killing at least 37 people. The protests were against Ankara’s inaction towards an Islamic State (ISIS) siege on the Syrian Kurdish town of Kobani.

The 3,530-page indictment that was accepted by a penal court in Ankara charges almost all Kurdish organisations in Turkey, legal and outlawed alike, of involvement in the protests. It lists 2,676 people as having suffered damages.

The indictment was a compilation of “Google search results”, Ramazan Demir, one of Demirtaş’s lawyers, told Ahval.

“They included any and all news stories, press statements by politicians and non-politicians alike – everything to blow it up,” Demir said. “There are no crimes listed in the indictment, it doesn’t specify who committed which crime in what manner. These factors are not concrete, or properly characterised.”

Demir continued: “When you say Selahattin Demirtaş is facing 150 years in prison, you are working to create an idea in people’s minds that he has committed a great crime. That is why indictments are trumped up in such cases: so people will think the accused must have done many things, based on how long the indictment is.”

The indictment also levies accusations against prominent Kurdish women politicians and former lawmakers Sebahat Tuncel, Gültan Kışanak and Aysel Tuğluk. They face charges of murder, looting, battery and assault and inducing miscarriages along with several other suspects, Demir said. Demirtaş and fellow HDP co-chair Yüksekdağ are also accused of inciting murder, battery, looting and robbery.

“From the perspective of penal law theory, accusations need to comply with human logic,” Demir said. “You can’t ask for an illogical or impossible sentence. Here they dole out 50 life sentences. This makes no physical or logical sense. There is no logic to it, and it doesn’t correspond to anything in terms of penal law.”

More than 2,000 pages in the indictment recount the history of the Kurdistan Workers’ Party (PKK), Demir said, describing it as “an attempt to criminalise all institutions and prominent figures among Kurds, and all of their diverse agendas”.

“This indictment is not bothered with pursuing and trying to uncover the material truth,” Demir said.

Turkish President Recep Tayyip Erdoğan first said there were 55 people dead from the Kobani incidents, the lawyer said.

“Then he went down to 50. At one point they said 49 people died, then lowered that to 43. In the end, the indictment cites 37 people who were killed during the protests,” Demir said.

“Every statement used a different death toll, because they didn’t know how many people actually died, and their goal was to adjust the public perception and say Demirtaş was responsible for however many deaths.”

The deaths were not thoroughly investigated because most of the people who died were HDP members, Demir said. The indictment on Kurdish politicians included killings by ISIS and another in Colombia, he said. “Nobody says anything because no legal body inspects the job the prosecutor is doing.”

“Frankly, Demirtaş himself was not expecting such an empty indictment,” Demir said. Demirtaş, a lawyer himself, has been reading the indictment against him. “He wasn’t expecting such an empty, baseless, contradictory text … He was upset that the activities of the peace process were criminalised in this way.”

Between 2013 and 2015, Turkey and the PKK continued a peace process to resolve a four-decade-old conflict over what rights Kurds hold in the country. Many issues that would have led to terrorism investigations before were open for discussion.

In the more open atmosphere, committees of HDP politicians visited PKK bases in the Qandil mountains in northern Iraq and the prison on İmralı Island in Turkey’s northwestern Marmara Sea, where PKK leader Abdullah Öcalan has been serving a life sentence for treason and terrorism since 1999, as interlocutors to relay messages back and forth with parliament and the general public. Years later, they found themselves accused of terrorism for their activities at the time.

“This was disregard for thousand-year-old traditions,” Demir said.

“You establish a peace process, to resolve an issue. You send messengers and envoys. The president, the prime minister, all ministers work to achieve something. You pass laws to protect these people. Then six years later, you criminalise these actions. This is grave.”

Turkey passed the Law No.6551 to End Terrorism and Ensure Social Integration in 2014 to regulate the peace process and define roles for the government and political actors through it. The law also removed criminal liability for persons involved with the process.

“The indictment has ignored this law,” Demir said. “HDP members went to Qandil and İmralı on the state’s demand, with requests and approval from the president and government. What is criminal for HDP members will be criminal for all. Those who sent them bear legal responsibility.”

Demir said “anybody involved in the process may one day be accused of treason” – which will rob the state of all credibility for future peace efforts. “Nobody will believe you anymore to embark on any new initiative.”

The acts listed in the indictment were not covered by criminal law at the time, Demir said. “This is what the European Court of Human Rights (ECHR) also said. You can’t take something that wasn’t a crime at the time it occurred and use it as a crime six years later for political benefit.”

PKK members had walked through cities freely at the time as they withdrew from Turkish territories, Demir said. “Did you see one among them get arrested? No, because that’s how a peace process works, with bilateral trust and shows of good faith. Not like timed traps as seen in this indictment.”

In 2009, Turkey detained some 10,000 people affiliated with civil society organisations and pro-Kurdish political parties that preceded the HDP faced arrest on charges of being members of the Kurdistan Communities Union (KCK), a self-defined umbrella group that sought to harmonise all Kurdish political actors in Turkey. Some of those detainees were released during the peace process.

Demir wondered if the Kobani indictment would create a similar stock of people who could be released from prison in another peace process.

“That is speculation, but not entirely wrong,” Demir said. “People were released from KCK trials depending on how the process continued.”

Turkey’s decision not to include political prisoners among those who were released from prisons as part of preventative coronavirus measures was one way the government has strengthened its hand for a future negotiation table, he said. “It isn’t ethical to use humanitarian values, human rights and freedoms as bargaining chips, but this is what is done most often.”

In the interview, Demir also spoke about Osman Kavala, a Turkish philanthropist and businessman who spent several years in pre-trial detention for allegedly inciting anti-government protests in 2013. Despite being acquitted last year in the infamous Gezi Trials, Kavala was not released as he was charged with espionage immediately afterwards.

The Turkish Court of Appeals overturned the acquittal verdict on Friday.

Kavala’s continued pre-trail detention is a bargaining chip against Europe, Demir said. “This is outright blackmail over a human life. This, of course, isn’t how a state with rule of law should be, but Turkey has come to a point of pride over such things. Everybody acts like this is our norm.”

In 2019, the ECHR ruled that Kavala’s detention took place in the absence of evidence to support a reasonable suspicion of offence. The European Union in December called on the Turkish judiciary to implement the ECHR ruling and release the philanthropist immediately.

The ECHR and members of European Parliament have also recently called for Demirtaş’s immediate release.

The top human rights court “did something it never did before in its Demirtaş ruling”, Demir said. “It issued a ruling that covered the second case file as well.”

According to the ECHR’s assessment, Demirtaş was arrested on inconclusive evidence in 2016 and was kept in prison over the same pieces of evidence with a new arrest order. “That is why the court said it didn’t accept the current arrest and ordered his release,” Demir said. “This was a first in ECHR’s history.”

Turkey will have to implement the ruling sooner or later “as the ECHR ruling leaves nothing ambiguous”, but, in the meantime, the indictment could be used to shut down the HDP, Demir said.

This month, leader of Turkey’s far-right Nationalist Movement Party (MHP) Devlet Bahçeli, the junior partner to Erdoğan’s government, called for the HDP to be shut down, saying the Kobani incidents were “part of a plan to divide Turkey”. If the courts don’t move to shut the party down, MHP will take action, Bahçeli said.

MHP deputy chairman Feti Yıldız told Sözcü shortly after that the MHP had been preparing a case against the HDP for the last two years.

“As a whole, there is an effort to connect any and all Kurdish institutions, political movements and all Kurdish thought to violence,” Demir said. “The worst part is that it is not very well formulated. (The indictment) is a document that is weak, unsuccessful and wishful thinking on (the government’s) part. This document doesn’t go beyond what they keep shouting from the television screens every day.”

Future generations will look at the indictment and see how the law was instrumentalised in Turkey during this period, Demir said.

The opinions expressed in this column are those of the author and do not necessarily reflect those of Ahval.