Day 8 – Trial against Kenan Ayaz: “Satisfaction of Turkish interests”

Trial against Kenan Ayaz: “Satisfaction of Turkish interests” In Cyprus, the trial against Kurdish activist Kenan Ayaz is incomprehensible, next week a group will come to Hamburg for observation. Thursday will show whether the Office for the Protection of the Constitution can contribute to clarification. The trial against Kenan Ayaz (official name: Ayas) has continued in Hamburg. The Kurdish activist, who was extradited to Germany from Cyprus, has been on trial at the Hanseatic Higher Regional Court since the beginning of November on charges of membership of the Kurdistan Workers’ Party (PKK) under Section 129b of the German Criminal Code. Once again, numerous trial observers attended the hearing on Monday, including the Kurdish musician Serhado, who had traveled from Sweden to visit his uncle Kenan Ayaz in prison during his eleven-year imprisonment in Turkey. Lawyer Antonia von der Behrens and Cypriot lawyer Efstathios C. Efstathiou and his colleague Socrates Tziazas were present on behalf of the defense team. In the morning, a former LKA officer from Bremen was questioned as a witness about surveillance of alleged PKK meetings in Bremen and Hamburg in spring 2019. After the break, it was decided not to call Kurdish activist Mehmet D. as a witness because he had informed the court via his lawyer that he would exercise his right to refuse to provide information. Satisfaction of Turkish claims Attorney Efstathiou gave a supplementary explanation of the defense’s objection to the self-reading procedure customary in PKK trials in Germany, emphasizing the specific European and Cypriot perspective. On the one hand, the principle of publicity is anchored in the European Convention on Human Rights, on the other hand, there is a great public interest in Cyprus, the defense lawyer explained. Kenan Ayaz was resident in Cyprus before his extradition to Germany. Efstathiou said that Germany had given him the assurance that he would be able to serve his sentence in Cyprus in the event of a conviction. This case is therefore not an “ordinary” PKK case, of which there have already been many in Germany, but one that has a close connection to the EU member state of Cyprus and is of considerable public interest there. According to the average Cypriot citizen, the criminal prosecution of Kenan Ayaz serves to satisfy Turkish demands and the prevailing view is that “Turkey is effectively blackmailing NATO and Germany in particular due to geopolitical and economic interests”, said the Cypriot lawyer. Will the Office for the Protection of the Constitution contribute to the investigation? The trial against Kenan Ayaz will continue on Thursday, December 14, at 9.30 a.m. with the hearing of employees of the State and Federal Office for the Protection of the Constitution. It is possible that the questioning of witnesses will provide further clues as to how the German authorities operate in the persecution of Kurdish activists as desired by the Turkish state. The defense had already pointed out in its opening statement that the investigation against Kenan Ayaz had been dormant for two years and that an arrest warrant was only suddenly applied for shortly before the NATO summit in 2022. Group from Cyprus arrives to observe the trial A group from Cyprus will travel to the hearings next week to observe the trial. On Tuesday, December 19, expert witness Günter Seufert will continue his presentation on the Kurdish question. The other dates next week are Wednesday, December 20, and Thursday, December 21, both at 9.30 am. The solidarity committee #FreeKenan continues to call for trial observation and, in view of the high expenses for interpreters, asks for donations to Rote Hilfe e.V. OG Hamburg, IBAN DE06 2001 0020 0084 610203, keyword: Free Kenan Full statement by lawyer Efstathiou on the public interest While criminal prosecution in the European Union remains in principle a task for the Member States, the focus of European criminal law is on simplifying cross-border criminal proceedings by strengthening judicial cooperation, particularly in the area of mutual legal assistance. In doing so, the European Union is pursuing the goal that all Member States should form a single legal area, the area of freedom, security and justice. The differences in the criminal law systems of the Member States are not to be abolished, as they are the direct result of state sovereignty and the socio-ethical and cultural values of the respective Member States. On the other hand, the single legal area is to be established through the mutual recognition and enforcement of criminal justice decisions. Accordingly, European criminal law has created a large number of regulations for the mutual recognition and enforcement of decisions. Just as important as formal recognition is that these decisions are also accepted in the respective Member State in which the person prosecuted originally resided and where the sentence is to be enforced in the event of a conviction. Requiring Member States to enforce criminal sentences that are not accepted because they are perceived as contrary to the ethical values of the population can lead to a rejection of European law. One way of ensuring the acceptance of criminal judgments is to conduct proceedings in a transparent and communicative manner, which also takes into account the public’s interest in information and the universal principles of orality and publicity in criminal proceedings. The principle of publicity is also enshrined in Art. 6 para. 1 of the European Convention on Human Rights (ECHR). The Court has emphasized the importance of the principle of publicity: “Publicity contributes to the achievement of the objective of Article 6(1), namely to ensure a fair trial, which is one of the fundamental principles of any democratic society, by making the administration of justice transparent.” (ECtHR Riepan v. Austria, No. 35115/97, judgment of November 14, 2000). According to the case law of the European Court of Human Rights, restrictions on this principle must be necessary and proportionate; this may be the case, for example, in security-related matters or for the protection of juvenile defendants or victims. Finally, Art. 10 ECHR is also affected, which includes the right of the media to report on the court proceedings. Even if the main hearing against Kenan Ayas is open to the public, the order to read out documents in the self-reading procedure means that part of the evidence is taken outside the main hearing and without the public being able to take note of the content of the documents in any other way and without media representatives or other persons present being able to report on this evidence. It is not clear to the public which documents are to be introduced in this way. However, it can be stated that these documents are to be the central pieces of evidence in the prosecution’s case against Kenan Ayas. Bearing these principles in mind, the public interest in the proceedings in other Member States of the European Union must be taken into account in the discretionary decision as to which parts of the taking of evidence should be heard orally and in open court and which should be outsourced to the self-reading procedure. Kenan Ayas was resident in Cyprus before he was handed over to Germany on the basis of the European arrest warrant. In addition, the German side has given assurances that Kenan Ayas will be able to serve his sentence in Cyprus if he is convicted. This trial is therefore not an “ordinary” PKK trial, of which there have already been many in Germany, but one which has a close connection to the EU member state of Cyprus and which is attracting considerable public interest in Cyprus. The importance of these proceedings in Cyprus and the extent to which they are being reported on in all the media there is certainly difficult to imagine from a German perspective, where public attention is very low. The Cypriot news channels (ANT1 Cyprus, Alpha TV, Omega TV, and Sigma TV), including the state broadcaster CYBC, have reported on the Cypriot court proceedings in which the consent to extradition under the European Arrest Warrant was negotiated. The same media are now reporting on the proceedings before the local court. The issue is also constantly present in two of the four largest daily newspapers in Cyprus, namely “Fileleftheros”, a daily newspaper in Nicosia, and “Haravgi”, the daily newspaper with the highest circulation in Cyprus. In addition, the weekly newspaper “Simerini” devotes a lot of space to the case of Kenan Ayas. It goes without saying that the case is receiving a lot of attention on social media. This coverage reflects the particular sensitivity that exists among the Cypriot population for the Kurdish struggle for freedom. This sensitivity is also rooted in the feeling of a significant part of the Cypriot population that, with the extradition of Kenan Ayas to Germany, the Republic of Cyprus has abandoned its own socio-ethical and cultural values and simply bowed to power. In Cyprus – as I said on the second day of the main hearing – the Kurdish movement is seen as an ally and Kenan Ayas as a freedom fighter in the joint struggle against the aggressive and autocratic Turkish regime. The people of Cyprus have a different relationship with Turkey than is evidently the case in Germany due to their own sacrifices during the Turkish invasion and occupation. According to the perception of the average Cypriot citizen, the prosecution of Kenan Ayas therefore serves to satisfy Turkish demands. The prevailing view is that Turkey is effectively blackmailing NATO and Germany in particular due to geopolitical and economic interests. Accordingly, there is also great interest in the criminal proceedings against Kenan Ayas at a political level in Cyprus. With the exception of the far-right ELAM, this applies to all political parties in Cyprus, i.e. AKEL, the Party of the Left, the Green Party, the Socialist Democrats Party and DHKO, the Democratic Centre Party, as well as extra-parliamentary left-wing parties and organizations. All six Cypriot members of the European Parliament are also following the proceedings closely. The principle of public access to judicial proceedings is the result of a century-long struggle, as only through transparency can power be controlled and justice be accepted. This universal principle also serves, as I have shown, to establish a European area of freedom, security and justice. Restricting the principle of orality and publicity and thus accepting a lack of transparency in the present proceedings would have serious consequences for the perception of the proceedings in Cyprus. Such a restriction will give rise to a feeling among large sections of the Cypriot population that something is being concealed and that there is concern about discussing the evidence in public. If Kenan Ayas is convicted, the procedure of introducing all the documents in the self-reading procedure and the resulting lack of reporting on this evidence would make it very difficult for the Cypriot population to develop an understanding and acceptance of the verdict. Ultimately, such an approach would also weaken the trust of the European public and in particular the Cypriot public in the judiciary of the individual Member States. These disadvantages are all the more serious because it is not clear why the introduction of the self-reading procedure is necessary. A necessity in the sense of the case law of the ECtHR is not recognizable. Reading out the text messages should not take much time and, with regard to the reading out of notes and other documents, I agree with my colleagues that a targeted pre-selection could be made during the reading out in the main hearing, which would further increase transparency for the parties to the proceedings. After all, Kenan Ayas also has the right to have all the evidence mentioned in the indictment or used by the court discussed in open court so that he cannot later be accused of not being able to be sure whether he was involved in terrorist acts because the evidence is not known. The fact that Kenan Ayas will be confronted with such suspicions is not an abstract danger, but has already occurred. In Cyprus, a small minority of journalists and politicians have already asked these questions because they simply cannot imagine Germany going to such lengths in terms of extradition, harsh prison conditions and our big trial for a person who is accused of nothing more than coordinating legal demonstrations on behalf of the PKK, attending rallies and supervising fundraisers, all of which would not be punishable in 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