7th November, 2023

Day 2 – PKK trial: Kenan Ayaz is considered a freedom fighter in Cyprus

Trial report from the 2nd main hearing day in the proceedings against Kenan Ayaz before the Hamburg Higher Regional Court (report by ANF from 07.11.2023) (https://anfdeutsch.com/aktuelles/pkk-prozess-auf-zypern-gilt-kenan-ayaz-als-freiheitskampfer-39726)

PKK trial: Kenan Ayaz is considered a freedom fighter in Cyprus

Two witnesses for the prosecution were summoned for the second day of the trial. Prior to the examination of the witnesses, Cypriot lawyer Efstathios C. Efstathiou, who is defending Kenan Ayaz together with Antonia von der Behrens from Berlin and Stephan Kuhn from Frankfurt am Main, commented on the intended order of the “self-reading procedure” by the Hamburg State Security Senate. The self-reading procedure is a common procedure in PKK trials in Germany to shorten the hearings, as a large part of the evidence introduced by the public prosecutor’s office consists of wiretap transcripts. Documents that are introduced in self-reading proceedings in accordance with Section 249 (2) of the Code of Criminal Procedure are not read out in the public main hearing, but only by the court and the parties to the proceedings. The public does not have the opportunity to take note of their content.

High information interest of the Cypriot public

“The self-reading procedure therefore involves a restriction of the principle of publicity,” stated lawyer Efstathiou and continued: “This circumstance weighs particularly heavily in the present proceedings. There is a very considerable interest of the Cypriot public in these criminal proceedings against Kenan Ayas. Since the acts of which Kenan Ayas is accused are not punishable in Cyprus, the Cypriot public has an interest in finding out how the evidence is presented in Germany. In contrast to the German public, the Cypriot public is not familiar with this type of procedure, which is why the interest in information is particularly high.”

European arrest warrant: Germany exports its definition of terror

According to Efstathiou, this is also of great importance in connection with the European arrest warrant against his client. Kenan Ayaz was arrested in Cyprus in March on the basis of an European arrest warrant requested by the German Federal Prosecutors Office. The European arrest warrant enables a particularly simplified handover of suspects wanted in a Member State within the European Union, explained lawyer Efstathiou: “In the case of criminal charges relating to terrorism, for example, the otherwise necessary examination of mutual criminality is excluded. The European arrest warrant is thus an instrument that allows any Member State to export its definition of a terrorist organization and to demand the surrender of alleged members of these terrorist organizations – even if the conduct in question is not considered terrorist or even punishable in the requested Member State. It is therefore likely that European extradition requests in the area of terrorism will attract considerable public attention and controversy in the requested state to the extent that the alleged conduct is not punishable by law in the requested state and is not perceived as terrorist.”

Acts of activity for the PKK only a criminal offense in Germany

This situation arises, among other things, in the prosecution of alleged members of the PKK by German law enforcement authorities, the lawyer explained in his statement: “The otherwise legal and peaceful acts prosecuted in Germany as punishable acts of activity for the PKK are not punishable in other European states, for example in Switzerland, Belgium or the Republic of Cyprus. The instruments of the European arrest warrant can therefore also be used to demand the transfer of persons from these countries in the event of terrorism charges. This circumstance harbors the possibility that the transfer will be very controversial in the requested member state and cause corresponding controversial discussions there.”

Lack of understanding and protests in Cyprus

On the “historical significance” of the extradition and criminal proceedings, lawyer Efstathios C. Efstathiou explained that the arrest of his client on March 15, 2023, was met with great incomprehension among the population, politicians and the media in Cyprus: “In Cyprus, people live with the reality of a divided island and a de facto occupation of the north of the island by Turkey due to the Turkish invasion in 1974. They are exposed to aggressive, verbal and physical Turkish provocations and attacks. For this reason, there is very broad sympathy with the Kurdish patriotic movement and accordingly Kenan Ayas has not only been granted asylum in Cyprus but has received widespread support following his arrest. There were large demonstrations against his extradition, the media constantly reported on the court hearings in which the extradition was decided, and politicians from almost all parties represented in parliament publicly spoke out against his handover to Germany. And the proceedings before this court are now also being watched very closely by the Cypriot media and politicians. There is a great deal of media interest in the proceedings. These proceedings are of historical significance for the Republic of Cyprus, an EU member state, and are also important for society as a whole.”

The principle of publicity cannot be curtailed

The defense assumes “that the principle of publicity, which is of paramount importance in German criminal proceedings, cannot be curtailed without taking into account the European public. Even beyond Cyprus, the public has a great interest in how the different application of criminal law on terrorism is structured, despite the principles of EU and pan-European law”.

Cypriot MP attends the opening of the trial

There was already a strong Cypriot presence inside and outside the court at the start of the trial last Friday. In addition to lawyer Efstathios C. Efstathiou, Member of Parliament Giorgos Koukoumas (AKEL) also traveled from Cyprus.

Today, the defense filed a motion on behalf of Kenan Ayas to dismiss the panel of three judges because they showed bias against Kenan Ayas.

 

The defense had no choice but to make this extraordinary request because the court showed bias against Kenan Ayas by rejecting the defense’s request. The defense had requested that the newspaper article quoting Turkish President Recep Tayyip Erdoğan’s statement about Kenan Ayas’ trial be considered as evidence and read in court.

 

The well-known German daily Frankfurter Allgemeine Zeitung (FAZ) had summarized Erdoğan’s remarks in an article published on November 19 as follows: “The visit to the German capital had ‘opened a new chapter in our deep relations,’ Erdoğan said. He expressed his delight at a criminal trial at the Hamburg Higher Regional Court against an alleged official of the Kurdish terrorist group PKK. The man was arrested in Cyprus and extradited to Germany on the initiative of the Federal Prosecutor’s Office.” (See the press release of the defense from November 30, 2023).

 

The court rejected the request for the second time, arguing that Erdoğan’s statement had no relation to the case of Kenan Ayas. It was the second time that the defense had asked the court to allow this article to be part of the evidence. The defense had argued that Erdoğan’s statements showed that the extradition and trial of Kenan Ayas was in the interest of Turkey and that Kenan Ayas could be in danger after his release from prison because of the known habit of the Turkish secret service to operate outside of Turkey. In regard to both motions, the Public Prosecutor’s Office did not oppose the request but supported it by stating that there was an obvious connection between the article and the trial.

 

Despite the statement of the prosecution, the judges showed their determination not to deal with the Turkish influence on the trial. The judges have continuously tried to keep anything out of the trial that could indicate the political nature of the extradition request for Kenan Ayas and the charges against him.

 

Now another chamber of the Hamburg Higher Regional Court hast to decide on the motion to dismiss the judges. Until this decision is made, the trial will continue as scheduled.

 

 

Hamburg/Frankfurt/Nicosia, February 6, 2024

 

 

Attorney Antonia von der Behrens, Berlin

Attorney Stephan Kuhn, Frankfurt am Main

Attorney Efstathios C. Efstathiou, Nicosia, Cyprus

 

The FAZ article “Return to Turkey: Erdoğan calls Scholz the ‘other'” from November 19, 2023 can be found here:

https://www.faz.net/aktuell/politik/rueckkehr-in-die-tuerkei-so-sieht-erdogan-seinen-besuch-in-berlin-19324031.html