This record is a partial extract of the original cable. The full text of the original cable is not available.

C O N F I D E N T I A L SECTION 01 OF 03 ANKARA 002525 
 
SIPDIS 
 
DEPARTMENT FOR EUR/SE 
 
E.O. 12958: DECL: 05/03/2015 
TAGS: PGOV PREL PHUM TU PKK
SUBJECT: OCALAN LIKELY TO GET RETRIAL 
 
REF: A. 03 ANKARA 1578 
 
     ¶B. 02 ANKARA 8881 
     ¶C. 02 ANKARA 6116 
 
Classified by Polcouns John Kunstadter; reasons 1.4 b and d. 
 
¶1. (U) Summary: The European Court of Human Rights (ECHR) is 
expected to rule on May 12 that Abdullah Ocalan, jailed 
leader of the Kurdistan Workers Party (PKK), did not receive 
a fair trial when he was convicted in 1999.  Contacts say 
such a verdict would likely lead to a retrial in a Turkish 
court.  Re-convicting Ocalan should be simple from a 
technical standpoint, but the court would have to address 
ECHR due process concerns to avoid international criticism. 
A retrial of the terrorist leader could spark social unrest. 
End Summary. 
 
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Ocalan Retrial Expected 
----------------------- 
 
¶2. (U) The ECHR has announced that it will issue its ruling 
in the Ocalan case on May 12.  Our contacts say they expect 
the court to rule that Ocalan did not receive a fair trial 
following his 1999 arrest.  They say the ruling will likely 
lead to a retrial for the terrorist leader. 
 
¶3. (U) The ECHR initially ruled against Turkey in the case in 
March 2003 (reftel A), when the court determined that 
elements of Ocalan's detention and trial violated the Council 
of Europe's Convention for the Protection of Human Rights and 
Fundamental Freedoms.  The court cited the following 
violations: 
 
-- The three-judge State Security Court that tried Ocalan 
initially included a military judge; 
 
-- the GOT improperly denied Ocalan access to an attorney for 
seven days while he was held in police custody, during which 
time he made several incriminating statements; 
 
-- Turkish authorities improperly held Ocalan for seven days 
before bringing him before a judge; 
 
-- security forces attended meetings between Ocalan and his 
attorneys; 
 
-- following the first two attorney visits, Ocalan was 
permitted only two hours per week for consultations with 
attorneys; and, 
 
-- prison authorities prevented attorneys from providing 
Ocalan with certain legal documents. 
 
¶4. (C) The GOT appealed the 2003 ruling to the ECHR Grand 
Chamber, whose final decision is now expected.  Koksal 
Toptan, chairman of the parliamentary Justice Committee, told 
us the Turkish judge on the ECHR recently discussed the case 
with Justice Minister Cicek.  Toptan averred that the judge 
did not indicate how the court would rule; however, Toptan 
said that, based on the initial verdict, he anticipates the 
court will again rule against Turkey.  Sema Kilicer, 
political officer at the European Commission Representation 
to Turkey, said she did not have any information on the ECHR 
ruling.  However, she said press reports anticipating a 
ruling against Turkey are probably correct, noting that past 
leaks about pending ECHR verdicts have proven accurate. 
 
----------------------------------------- 
Ocalan Excluded in Initial Retrial Reform 
----------------------------------------- 
 
¶5. (U) As part of the GOT's EU reform drive, Parliament in 
2002 and 2003 adopted legislation allowing defendants to 
apply for a retrial in a Turkish court if the ECHR rules in 
their favor (reftels B-C).  The legal amendments were 
carefully crafted to provide a loophole designed to prevent 
Ocalan from obtaining a new trial.  The right to retrial was 
applied to cases in which the ECHR had ruled prior to the 
passage of the Turkish legislation, as well as to cases 
brought to the ECHR following passage.  It did not, however, 
apply to cases under ECHR review at the time of passage. 
Ocalan's case, as well as those of approximately 300 other 
convicts, fell into this third category. 
 
¶6. (C) Nevertheless, a number of Turkish attorneys have 
argued that Ocalan is entitled to apply for a retrial thanks 
to a 2004 constitutional amendment under which Turkey's 
international agreements take precedence over national law. 
Toptan maintains that the constitutional amendment would 
enable Turkey to retry Ocalan without the need to make 
further legal adjustments.  He rejected the arguments of 
Constitutional Court Vice Chairman Hasim Kilic, a 
conservative (Islamist) who has said publicly that Turkey 
would have to amend legislation to enable Ocalan to be 
retried.  Some attorneys have also argued that the loophole 
in the legislation would not withstand a legal challenge, 
because it arbitrarily establishes different rights to 
defendants based on the dates of their ECHR appeals. 
 
¶7. (U) A retrial would not be automatic -- a three-judge 
Turkish high penal court would review an application and vote 
on whether to approve it.  If the court rules against 
retrial, Ocalan's attorneys could appeal to the High Court of 
Appeals (Yargitay).  If that fails, they could take the 
matter back to the ECHR.  However, both Toptan and Yusuf 
Alatas, president of the Human Rights Association, predicted 
that the court will grant a retrial, to demonstrate its 
willingness to accept the ECHR's authority.  They said timing 
is difficult to predict.  Ocalan's attorneys will have one 
year from the date of the ECHR ruling to apply for retrial, 
although they are likely to act quickly; there is no deadline 
for the court to rule on the application, and the judges may 
decide to delay a decision for several months. 
 
-------------------------- 
Trial Could Raise Tensions 
-------------------------- 
 
¶8. (C) Toptan predicted that in a retrial Ocalan would again 
be convicted and given the maximum sentence (Ocalan was 
sentenced to death in the original trial, but the sentence 
was converted to life imprisonment when Turkey abolished the 
death penalty).  But Toptan, echoing the comments of other 
contacts with deep connections to the State, acknowledged 
that the trial could become a rallying point for nationalists 
and Kurdish separatists looking to stir up trouble. 
Moreover, he worried that the EU will make "unreasonable 
demands" on Turkey regarding the conduct of the trial.  He 
accused the EU of applying a "double standard" to Turkey, 
asserting that while EU officials harshly criticized Turkey 
for the violent crackdown on demonstrators by Istanbul police 
in March, they have remained silent following similar 
incidents in France.  He averred that Turkey's critics in the 
EU could use the trial to smear the GOT. 
 
¶9. (C) Alatas, attorney for left-wing Kurdish activist and 
PKK sympathizer Leyla Zana and her co-defendants, also said a 
court should have no trouble re-convicting Ocalan.  He said 
Ocalan openly admitted in the original trial that he was the 
head of the PKK, so there is no question about his guilt. 
Moreover, Alatas averred that the Turkish public is not 
inclined to overreact to the matter.  When Turkey lifted the 
death penalty, he noted, there were only minimal protests, 
despite the fact that the reform spared Ocalan's life. 
Alatas said he doesn't expect significant unrest unless 
"elements of the State" decide to exploit the trial for their 
own interests. 
 
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Comment 
------- 
 
¶10. (C) From a technical, judicial standpoint, retrying 
Ocalan should not present a difficult challenge.  There is 
ample evidence of Ocalan's guilt, which by all accounts he 
did not try to deny in the initial trial.  But the Turks will 
have to do it right this time.  Ocalan was initially tried in 
the (now abolished, in name at least) State Security Court 
system, where defendants were presumed guilty and little 
effort was made to evaluate evidence.  The Leyla Zana retrial 
was the first retrial allowed pursuant to an ECHR ruling 
under the new reforms.  It did not go well.  The court 
repeated the pro-prosecution practices utilized in the 
original trial, which had led to the ECHR ruling against 
Turkey.  Attorneys and defendants spent the proceedings 
making speeches bearing no apparent relation to the charges 
at hand.  As anticipated, the court repeated its initial 
conviction, which an appeals court promptly overturned.  The 
defendants are now being tried again.  A court re-trying 
Ocalan will have to make a serious effort to address the 
concerns of the ECHR to avoid a similar embarrassment. 
 
¶11. (C) There is also a potential for social unrest in 
connection with a retrial.  Many close contacts tell us 
nationalism, on the rise in Turkey, is being stoked by 
various elements of the deep state, as reflected in the 
recent "flag burning" hysteria.  Turks are beginning to 
become more skeptical about the EU's intentions toward 
Turkey, and suspicious of its motives.  The retrial is likely 
to take place in an already supercharged political atmosphere. 
EDELMAN