London-based barrister Bronwen Jones was one of the observers at the KCK trial of lawyers currently taking place in Istanbul. The trial has been on going since the defendants, most of whom had acted as legal representatives of jailed Kurdish leader Abdullah Öcalan, were arrested in November 2011.

Bronwen attended the trial for the second time on 17 September as an international observer and was accompanied by a strong UK delegation, which included international human rights barristers Margaret Owen OBE, Hugo Charlton, and Mark Jones of St Ives Chambers, as well as and Law Society Human Rights Committee members Tony Fisher and Ali Has.
The next hearing of this trial will take place on 19 December. Peace in Kurdistan Campaign will be coordinating the next delegation.

In his long and detailed report (the full text can be found here) barrister Bronwen Jones wrote about several issues of concern. For example on the use of intercept evidence he had this to say:

"In addition to audio and video recordings of Abdullah Öcalan’s conferences with his lawyers, the prosecution’s evidence has been obtained from telephone intercepts, search warrants for business and personal premises, analysis of publications/translations and interviews with media and “technical searches” via telephone signals to identify a defendant’s geographical location, and information from hard disks and physical case files.

Sections 135 and 140 of Turkish Law on Criminal Trials provide that, subject to first obtaining judicial authority, communications of a subject or defendant can be traced if an investigation reveals good reason to suspect an offence has been committed and if the evidence cannot be obtained through other methods.  The authority can cover sound, audio-visual records and monitoring the person’s behaviour in public areas.

In the Öcalan lawyers’ trial, an application for judicial authority was made but the defending lawyers have repeatedly submitted that the authority given was exceeded and that the basis of the order giving authority is questionable.

Section 135 TLCT takes into account freedom of communication, which is enshrined in Article 22 of the Turkish Constitution, and thus imposes many restrictions on tracing communications for a criminal investigation.  These are based on proportionality, practicability and the ability to obtain evidence by other means – so this sort of evidence should be a “last resort” and can only be used at trial if obtained lawfully".

As to the quality of evidences the London-based barrister said:

"some of the evidence includes personal conversations between lawyers and their spouses which have no relevance to the trial; some consists of conversations between the lawyers and clients other than Abdullah Öcalan; some is of legitimate articles published by the defendants in magazines and newspapers, works translated or interviews given, arguably contravening Art 10 ECHR. The dubious sources of the evidence aside, the contents of the indictment are frequently vague and it is arguable whether they disclose any offence".

The concerns under UN Basic Principles on the Role of Lawyers, adopted in 1990 are according to the barrister the following:

18 – “Lawyers shall not be identified with their clients or their clients’ causes as a result of discharging their functions.”
22 – “Governments shall recognize and respect that all communications and consultations between lawyers and their clients within their professional relationship are confidential.”

The multiple procedural flaws identified above, in addition to the politicisation of this trial and the weakness of the evidence, leads this observer to conclude that the charges underlying this trial are in violation of these Articles.