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Democracy on Trial

An international observer denied access to the trial of HDP co-chair Figen Yüksekdağ in Turkey recounts her experience.

Figen Yüksekdağ in 2015. HDP / Flickr

Earlier this month the trial of Figen Yüksekdağ, co-chair of the People’s Democratic Party (HDP), began in Turkey’s capital of Ankara. Accused of supporting Kurdish separatists in the country’s southeast, Yüksekdağ has already been stripped of her place in Turkey’s parliament — but now the Erdoğan government is pursuing terrorism-related charges which come with the threat of an eighty-three-year jail term.

Yüksekdağ is represented, symbolically, by 1,200 lawyers, whose numbers represent a political stand against the government’s attacks on opposition politicians. Her lead lawyer, Gülseren Yoleri, argues that stripping her of her seat was illegal, her arrest was dubious, and the entire process resembles a “premeditated” attack on the HDP.

On July 4 I, as part of a delegation of politicians and lawyers from across Europe, attempted to observe the first hearing in the prosecution. The delegation was subjected to police harassment throughout the day and eventually denied entry to the hearing in breach of well-established international legal principles. The hearing took place in the absence of any international observers and was eventually adjourned to September 18 without the granting of bail.

This denial of the right to see justice being done in public was a new development. As a barrister specializing in human rights law I have been asked to observe many hearings in Turkey over recent years and have always been admitted, albeit in intimidating circumstances — having to brave lines of riot police on the way into court. The authorities acted with a confidence, or even arrogance, that there was nothing to hide and that what we would witness would be Turkish justice in the way that they wanted it done.

During the morning of July 4, however, we were stopped and ordered to leave our vehicle in the middle of the highway, close to the Constitutional Court where we were due to attend a press conference. We were held by heavily armed riot police at the side of the road for nearly an hour before being allowed to rejoin our vehicle.

At the court building the hearing was delayed for over two hours while negotiations were conducted with the authorities and European embassies contacted. As this unfolded, the lobby of the court building began to fill up with yet more heavily armed riot police. The atmosphere remained tense as increasing numbers of supporters of Ms Yüksekdağ and the HDP arrived to witness the proceedings and to offer moral support.

Permission to enter the court was eventually granted to five delegates, who duly entered the courtroom. However, it was not long before the Ministry of Justice intervened directly to overrule the judge, demanding that they be ejected. The five delegates were removed after a couple of minutes — and any remaining vestige of the independence of the judiciary in Turkey was dispelled. We were left with the deep concern that Ms Yüksekdağ cannot receive a fair trial given the clear influence of the executive on the proceedings and the consequent inability of the tribunal to take independent decisions in the course of the trial.

It is a long-established principle of law that trials should be held in public, that justice must be seen to be done, before a fair and impartial tribunal. The principle is enshrined in many international human rights instruments to which Turkey is a signatory, including Article 10 of the Universal Declaration of Human Rights. This provides that “everyone is entitled in full equality to a fair and public hearing . . . of any criminal charge against him,” while Article 11 adds that “everyone charged with a personal offence has the right to be presumed innocent until proven guilty according to law in a public trial . . .”.

Moreover, Article 14 of the International Covenant on Civil and Political Rights provides that: “In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.”

Figen Yüksekdağ had been arrested in the early hours of the morning during a police raid at her home in Ankara on November 4, 2016. She remained in custody awaiting her trial on terrorism-related charges. The definition of terrorism in the Turkish legal system is notoriously widely drawn and has been subject to intense criticism by international bodies including the UN Special Rapporteur on the Independence of Judges and Lawyers. The Constitutional Commission of the European Union, for example, has examined criminal law provisions relevant for freedom of expression and found that these articles “provide for excessive sanctions” and that they had been applied too widely, penalizing conduct protected under the European Convention on Human Rights.

Figen Yüksekdağ was an elected member of parliament for the HDP following the two general elections of 2015 in which a pro-Kurdish party managed to break through the 10 percent electoral threshold for the first time. She is an ethnic Turk and longstanding figure on the political left. She and fellow co-chair Selahattin Demirtaş were detained following the deeply contested lifting of parliamentary immunity in Turkey on May 20, 2016.

Ms Yüksekdağ has pleaded not guilty to all charges and her hearing was adjourned to September 18, 2017, without bail. She made an impassioned speech in the course of the hearing in which she stated that if she were to be given a second chance she would do the same again: “They demand one hundred years! If I had more lifetimes, I’d still do the same things. We have a cause of democracy and peace worthy of a century.”

The HDP argues that the continued prosecution of its co-leaders is politically motivated and is aimed at targeting and punishing the legitimate opposition in Turkey. The international delegation was unable to speak to any representatives of the judicial authorities in the course of our visit.

It can only be hoped that this change in policy in relation to the banning of international observers marks a slide in the previous confidence of the authorities. The sense of having nothing to fear may be weakening before a realization that the manner in which what they conduct their judicial proceedings is important, and that there may be accountability for the perpetrators of abuses somewhere down the line.

But, in the meantime, Yüksekdağ’s legal team must deal with the reality of a trial being influenced directly by the government. The prospects for justice in these circumstances are slim. As her head lawyer Gülseren Yoleri has said, “It would be a miracle to have an independent verdict in a dependent justice system.”

Selahattin Demirtaş, from his prison cell, has urged those fighting for justice in this case not to give up: “Even in the most hopeless moments, do not look at your toes but look at the horizon. You will see hope. And if you do not; look again and again until you see it.”

A year on from the attempted coup in Turkey the HDP are keeping their eyes on the horizon, hoping against hope that the international community will take a stand against President Erdoğan; will offer support to an embattled party risking everything in the fight for justice and democracy.

It was chilling to say the least to hear the president call for a return to the death penalty in Turkey for those convicted of plotting against him. It is indisputable now that the coup is being used as pretense for a wholesale attack on the democratic opposition in Turkey. The question is how far this will be allowed to progress with such little international scrutiny.