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Belgian case of 7 revolutionaries sentenced for “terrorism”: supreme judicial authority to decid

27. March 2007

by the Committee for the Freedom of Expression and of Association

What is at stake…

On 7 November seven people – all charged with belonging to the Turkish revolutionary group DHKP-C – received heavy prison sentences (4 to 7 years without parole).

Their defense counsels filed an appeal with the higher court called ‘cassation’ against the judgment of the Ghent Court of Appeal. The outcome of their appeal will be announced on March 27. They may take the case to the European Court of Human Rights in Strasbourg.

In September 1999, three members of the DHKP-C (“Revolutionary Front – Party for the People’s Liberation”) were arrested in Knokke (a seaside resort town): the police found several weapons and many political papers in the cars they had been using and in the flat where they had been staying.

The first inquiry was soon taken off the hands of the judge initially in charge, and charges against the arrested individuals were artificially extended by the Federal public prosecutor’s office: to the crime of conspiracy were added the charges of belonging to a “criminal organization” and to a “terrorist group.” As support for this charge, facts dating back to 2004 were added to the file, including the diffusion of a press release on a failed attack in Turkey.

We want to underline that, as a political movement, the DHKP-C is essentially involved in a democratic process in Turkey (which is not without risk, given the nature of Ankara’s current regime). However, this public form of activism is secondarily supported by armed attacks which are always targeted (against representatives of power: police torturers, mafiosos used by the secret service to assassinate opponents, military officers charged with repressing the left…). These armed attacks made in self-defense have always been limited to Turkey: the DHKP-C has not committed a single act of violence in Belgium, a fact confirmed by Belgium’s national security agency (la Sà»retà© de l’à‰tat).
For very serious reasons, all human rights defenders should be concerned by this “terrorist affair” and the verdict of the Ghent Court of Appeal.

Together with the GICM (the Moroccan Islamic Combatant Group) case, decided on January 19, 2007, the “Erdal and company” case constitutes the first Belgian application of the anti-terrorist law effected on December 19, 2003, one of the most controversial pieces of legislation…

It is an understatement to say that the trial has given rise to a series of disturbing moves.

— According to the defense, because the case concerns political offenses, only the Cour d’Assise (the Crown Court) has jurisdiction over this matter, citing Article 150 of the constitution. The Court of Appeal rejected this argument on the grounds that the offenses committed by the DHKP-C “do not directly harm Turkish political institutions”: “Committing acts of terrorism against individuals (principally police officers, judges, industrialists and ordinary citizens) and buildings (police stations, tribunals, shopping centers, etc.) is not in and of itself an attack on the actions and organization of legislative political institutions or a threat to the organization of the state. The simple fact of being the head or a member of the association, a criminal terrorist organization which commits such attacks and claims responsibility for them, is even less of an attack on the actions and organization of Turkey’s legislative political institutions or a threat to the organization of the Turkish state.” (November 7, 2006 decision, page 35)

However, in the same November 26, 2006 decision, it is specified, a number of times, that the goal of this organization is, in fact, to “overthrow the Turkish state by way of armed struggle.”

As in the initial proceedings (where the affair was, supposedly, not political and could thus only be heard by the criminal court), the Court of Appeal continues to develop – over pages and pages – politically charged developments, qualifying (in order to better disqualify) the DHKP-C as an “extremist” Communist or Marxist-Leninist movement. Here are some examples characteristic of the a-political discourse upheld and continually reinforced by the Court:
Page 127: “It could not be clearer that the systematic and successive commission of terrorist attacks against Turkish political figures, military personalities, magistrates and business men, and on public buildings has had serious consequences for the organization and the administration of the country (…). The exercise of armed struggle, by its nature, seriously attacks and disorganizes the country’s fundamental constitutional structure.”

Page 186: “With the concretization of its principles in destructive acts and bloody violence, and for the sole reason that people represent the capitalist establishment and the authorities, the DHKP-C is an extremely dangerous organization and a terrorist group – which in and of itself signals a dangerous state of mind even of those who simply want to be part of it.”

Page 130: “It is their Marxist-Leninist ideology that drives them to these terrorist attacks.”

Page 128: “In this sense, the far left and the far right are two aspects of the same evil.”

As for the Ghent Court of Appeal? It is constantly occupied with denying the essentially political nature of the case on which it had to rule. All the while, using political grounds to discredit the defendants’ ideology.

— The defense had also invoked a “state of necessity,” arguing that the accused and their political movement in Turkey led a violent struggle in reaction to state-sponsored violence: that of a regime dominated by the army. In fact, since the Second World War, Turkey has experienced three military coups (the most recent established an unbearable dictatorship which, during the eighties, led to the arrest of 650,000 people). In reality, behind a democratic faà§ade, the military is still holding the reins of power. Turkey holds the record for violations of the European Convention on Human Rights (75% of the complaints handled by the Court of Justice in Strasburg concern Turkey) and still has thousands of political prisoners being held in its prisons. The judges in Ghent did not concur: “That certain Turkish authorities would clearly be using illegal methods to take their revenge (…) is not to be unearthed for the judgment of the facts with which the accused are charged.” (page 44)

However, the refusal to recognize this state of necessity, and the justifications that were given for it, is probably the most revolting element that figures in the Court of Appeal’s ruling (page 127): “The fascist coup d’à©tat (…), the repression of the Turkish state constitute a reaction to the demonstration of force by the labor party.” Thus, according to the Court (which is not a political activist), the fascist repression can be considered a (legitimate) reaction to the labor movement’s struggle. And because all of the disarray can be attributed to the labor movement (which would be, in some sense, guilty of wanting to see its rights triumph), evoking a so-called “state of necessity” is in this case unseemly, incongruous, and should thus be excluded. Historically speaking, it should however be noted that it is these very arguments that justified and honored all of the fascist takeovers – from Mussolini to Pinochet, not forgetting Franco and the Greek colonels.

Following the same scandalous logic, the Court also rejected all requests formulated by the defense to take into consideration the situation in Turkey during the period 1997-2004 (a period of incriminating facts): “It is futile to further investigate the possible wrongdoings of the Turkish powers and the human rights violations in Turkey.” (page 42)

On one hand, the real political context in Turkey was completely abstracted. But on the other, the Court gave itself permission to judge the actions claimed by a political organization acting in a country that is more than 3,000 kilometers from Belgium. On the ethical level, this ruling gives you chills.

— The Court considers that the defendants belong to a criminal organization, which should also be qualified as being a “terrorist” group. These concepts were introduced into the Belgian penal code in 1999 and 2003, respectively. Thus, the “Erdal and Company” case serves as a test for these recently defined incriminations. It should be remembered that at the time that these two bills were presented to the Parliament, a large protest movement developed out of the fear that these incriminations could be used to reprimand certain political movements and problematic unions.

The political aspect of the law concerning criminal organizations, presented as a weapon for fighting terrorism (this was in 1996, thus well before September 11, 2001), was at that time abandoned by the legislator. The initial project was profoundly modified. The concept of “terrorist attacks on political institutions” was set aside and it was specified that movements whose goals were exclusively political would not be affected by this law. The criminal court of Bruges had thus, quite rightly, accepted that the law regarding criminal organizations could not apply to the DHKP-C. The Court of Appeal, on the other hand, did not. It jeopardized not only the text but the spirit of the law (as they were intended by the legislator) by applying it to incriminate a criminal organization. This decision constitutes a dangerous precedent since, in this same manner, the law could be applied against all legal movements (political or unionist) if crimes were committed in their name. According to the Court, the DHKP-C is guilty of committing “extortion to procure membership dues.”

The Court’s broad application of the concept of an offense committed by a “terrorist” group is also very dangerous. Two of the seven defendants were found guilty of such an offense on the grounds that they supposedly distributed a press release on a failed terrorist attack in Turkey through a news bureau. The press release did not claim responsibility for the attack, but presented the group’s excuses to the victims of the accident. The DHKP-C has had a news bureau in Brussels since the beginning of the 1990s and it had always operated without problems. From one day to the next, this freedom of expression magically became “participation in a terrorist group,” as the antiterrorist law came into effect. However, the Belgian law concerning terrorist offenses contains a disposition that stipulates that this incrimination should not threaten the right to free speech. The fears and warnings expressed at the time of the discussion of the bill by some democrats, who feared that dissident political opinions could be considered as crimes, have now become reality.

— During the Erdal trial, the defense also denounced the fact that it was considered special case. A special tribunal had effectively been set up. The tribunal’s independence was contested on the grounds that Judge Freddy Troch had come especially from Bruges to hear the trial. He had been chosen on the advice of the “Parquet” (the public prosecutor’s office of the Ghent Court of Appeal), which is a party in the trial just as the defendants. One party contributed to determining who would judge its trial. For the defense, this was unacceptable. However, the Court of Appeal rejected this argument. The defense will probably take this question to Strasburg (after having turned to the Final Court of Appeal) on the grounds that this is a violation of Article 6 of the European Convention on Human Rights (the right to a fair trial).

It was considered a special case because, to demonstrate that the DHKP-C is a “terrorist” organization, the Court did not hesitate to use events and elements that happened in other countries (Turkey, Germany, the Netherlands…) and before the infraction period (for example, events going back to the 1970s, when some of the defendants were not yet born or were still children). Or else it was events that took place at times when the crimes of a criminal organization or a terrorist group were not even defined by Belgian law. According to the defense, this was an explicit violation of the court’s “entitlement to jurisdiction,” in other words of the principle according to which the court can only be called upon to judge events that have taken place during the period and on the territory specified by the summons (in this case, Belgium).

This is also a special case because none of the demands for a complimentary investigation made by the defense were accepted (even the simple request to hear witnesses at the trial was turned down…): “It is thus not the Turkish state that is on trial and, consequently, investigations that tend to demonstrate the guilt of a third party (including the Turkish state and its representatives) do not serve to determine the truth about the events for which the defendants have been reproached in the framework of these criminal proceedings.” (page 42)

Lastly, this case is special because the public nature of the debates was seriously jeopardized – people wishing to attend the proceedings had to present a form of identification at the entrance and were subjected to repeated searches, which is clearly off-putting and discourages people from attending the trial.

— Three of the condemned were immediately arrested and held in custody after the pronouncement of the first instance verdict in Bruges. The exceptional nature of this case is illustrated here as well, in the special detention conditions to which these three detainees were subjected: isolation (no contact with the other detainees, no possibility of working in the prison …), stringent control (of their correspondence, family visitation …) and humiliating treatment (strip searches, a light in the cell that stays on all night …). The attorneys representing Sukriye Akar, Musa Asoglu and Kaya Saz had to submit up to five consecutive appeals to the chamber court in Brussels against these arbitrary conditions on the basis that it violated the individuals’ basic human rights. The judge entirely or partially agreed with the attorneys – concluding, with good reason, that the “terrorism” label should not automatically lead to shameful penal conditions. To be more precise: these illegal, inhumane, and degrading detention conditions were conducted and, in each case, reinforced by the ministry of Justice with the sole objective of humiliating the prisoners and breaking their spirit.

— One of the most troublesome episodes took place outside the purview of the trial. In April 2006, Bahar Kimyongür, one of the accused, was arrested in the Netherlands because Turkey had asked for his extradition. Belgium could not respond to this injunction since Kimyongür holds Belgian nationality and countries do not extradite their own citizens. The Netherlands, on the other hand, could. The Turkish international arrest warrant was based on a peaceful protest that took place in November 2000 (during the visit of Foreign Affairs Minister Ismail Cem to the European Parliament in Brussels), and on the crime of belonging to the DHKP-C (as affirmed by the criminal court in Bruges). In early July 2006, the Dutch judiciary refused to extradite Kimyongür and he was given his freedom. On September 19, 2006, the newspaper Le Soir revealed that a secret meeting had been held a few days before Kimyongür’s arrest in the Netherlands on Laurette Onkelinx’s initiative with high-ranking officials of the three ministerial Cabinets, of the police and security forces, and of the federal attorney’s office (including Johan Delmulle, who brought the charges against the defendants in the DHKP-C case…). What is most troubling about this episode is the active collaboration of the government and the federal prosecutor’s office to assure the complete success of this attempt at extradition, all the while knowing that Kimyongür was at risk of torture or even assassination in Turkey… On the parliamentary ecologist Josy Dubià©’s insistent request, Anne-Marie Lizin (President of the Commission for the monitoring of the permanent committee controlling services and information) had to order a report from Committee R in order to investigate the ins and outs of this affair. Held by the Office of the Senate since late January, this important document is inaccessible to all members of Parliament. Except those belonging to the aforementioned Commission. And even then, those members are forbidden from making partial or complete copies or divulging the contents to third parties.

Conclusions? In this clearly political case we have dangerously changed the limits of the state of law and of a fair trial in the name of the so-called “war on terrorism.”
In this shocking affair, the judicial battle is not yet over (far from it), but it is already clear that it is a test-case, expressing a dangerous step back: it is now judges who will determine what political action must do… to be reasonable, legitimate and tolerated.

That is why Clea is calling for:

—A denouncement of this iniquitous decision and the exhaustion, by mobilization, of all the paths of recourse to challenge a judgment of pure complaisance, made, in rapid succession, by two Belgian courts “under pressure!”

—A contestation of the security laws which, in our country as in the whole of European Union, are in the process of attacking the democratic freedoms won by a century and a half of social struggle!

—A show of solidarity with the political, unionist and associative forces which fight authoritarianism, despotism and State-sponsored violence which is seen in the nature of the regime in Ankara!