FECL 14 (April 1993):

THE MAKING OF A "TERRORIST ASSOCIATION" - THE POLITICAL TRIAL OF THE WORKERS PARTY OF KURDISTAN

Since three and a half years, members of the Workers Party of Kurdistan, PKK, the largest armed resistance movement of the Kurds in Turkey, are on trial in Germany accused of "membership in a terrorist association". The trial described by the former Federal Prosecutor, Kurt Rebmann, as Germany's "biggest terrorist trial so far" is a chilling illustration of how "anti-terrorist" provisions can undermine fundamental rights of the accused and the defence and allow for the political criminalisation of entire minorities.
Yet, after five years of detention on remand for some of the accused and one of the most expensive procedures in post-war Germany, the Federal Office of Prosecution (Bundesanwaltschaft) seems farer away then ever from its goal to label the PKK as a terrorist organisation. The last remaining witness of the accusation, the "repenter" Ali Cetiner, has been granted the right to refuse testimony by the court on the grounds that he would risk self-incrimination.

Originally, 23 Kurds were accused in two procedures, in Düsseldorf and Celle. At present, a mere five are still on trial (4 in Düsseldorf, 1 in Celle). Against 8 Kurds the case has been dismissed, one accused was acquitted and 4 were sentenced for minor offences. All of the latter were freed on the day of the judgement as the prison terms did not exceed their detention on remand. Thus, after the conclusion of two thirds of the cases, nobody has been convicted according to para 129a [on "terrorist associations"] of the German penal code.

The trials are based on the Federal Prosecutor's assumption that the accused were members of an alleged special branch within the PKK in charge of internal security and disciplin which had harrassed and - in some cases - even liquidated fellow countrymen suspected by the party leadership of beeing dissidents or spies.

There are, indeed, indications that the PKK - just as other resistance movements - tended to act quite ruthelessly against presumed "traitors", at least during a period.

More than 300'000 Kurds, many of them sympathisers of the PKK, live in Germany. Against this background and considering rising anti-foreigner sentiments in the country, the German prosecution authorities' and the medias' pointing out at the PKK as possibly responsible for a number of punitive actions including murder could not fail to have a devastating effect on the situation of the Kurdish community in Germany as a whole. In the opinion of the PKK and some German political observers, the deliberate triggering of anti-refugee sentiments in the population by the criminalisation of an ethnic minority, together with Germany's desire to satisfy demands of its Turkish ally were in fact the central aim of the the trials in Düsseldorf and Celle.

According to German legal practice, para 129a is not appliccable to foreign organisations that do not have their seat in Germany. In a noted decision the German Federal Court (Bundesgerichtshof) earlier quashed a terrorism sentence against the ill-famed mainly German paramilitary nazi group "Wehrsportgruppe Hoffmann", because, as a precaution, the organisation had at short notice transferred its "seat" to another European country.

In the PKK case however, the Federal Prosecutor made use of his own fairly hypothetical assumption, according to which the PKK had set up a separate "disciplinary" branch in Germany called the "popular tribunal of Cologne", which thus was punishable according to German law. This legal trick did not prevent the accusation from extensively mentioning the PKK's "terrorist" activities in Turkey and to formally accuse two defendants of involvment in killings in Lebanon. In the view of the defence attorneys this is a breach of international law.

 

Turkey's role in the trial

From the very beginning of the PKK case, the German judiciary authorities sought assistance from Turkey. For obvious reasons, the Turkish regime is interested in obtaining the PKK's judicial criminalisation by a Western European country as a terrorist group. Through the Ankara office of Interpol, Turkey regularly provided information on the defendants. Many of the records originate from military governors in the Kurdish provinces and, in an obvious effort to support the Federal Prosecutor's theory on the existence of a special "German" branch of the PKK, they often conclude with the assertion that "he [the defendant] is a member of the popular tribunal of Cologne".

In the meantime, however, even the Prosecutor General was forced to admit that there is no objective evidence proving the existence of such a tribunal and this charge has been dropped by the accusation.

 

Little evidence for a big trial

Originally, the accusation in the PKK case was mainly based on the declarations of two witnesses of the prosecution. Both had presented themselves to the police in February 1988 asserting that they had barely escaped punishment by a "popular tribunal" of the PKK. But both later retreated after getting increasingly entangled under cross interrogation by the defence. One of the two refused testimony after 4 months of hearing, when he suddendly remembered that he was a relative of one of the accused. The vanishing of these two main witnesses led to a sensational turning in the trial with the dismissal of the case against 8 defendants who had before been presented as extremely dangerous terrorists justifying months of isolated detention on remand and the erection of a special high security court with shot proof glass cages at a cost of 7,5 million Deutsch Marks.

 

The "repenter" Ali Cetiner

The hasty retreat of its two main witnesses confronted the prosecution with a serious problem of lacking evidence that threatened to expose the then Prosecutor General Rebmann who had made the PKK case the trial of his career to public ridicule. A new witness had to be found at once, and it was found in the person of Ali Cetiner.

In the bill of indictment, Cetiner was only briefly mentioned as a possible suspect in a murder case, but was not among the accused.

Cetiner's story is interesting. After living in Germany for several years, he abruptly moved to Sweden in early 1988, where he at once obtained political asylum - an unusual privilege for Kurds in Sweden. It later surfaced that the Swedish intelligence, SÄPO, had encouraged Cetiner to change his residence by offering him immediate political asylum, free housing, income and permanent care by the police. As a matter of fact, the SÄPO too was in bad need of witnesses in its effort to prove PKK involvment in the murder of the late Prime Minister Olof Palme.

By some way, both Swedish and German intelligence seemed to have come to the same conclusion that Cetiner might be willing to cooperate in denouncing the PKK.

In Sweden, Cetiner, known there as "source A" at once took a leading role in the Palme murder investigation with ever more spectacular declarations on the PKK and alleged traces of Syrian and Iranian involvment in the Prime minister's assassination. But after some time, Cetiner's obviously flourishing phantasy only drew sarcastic comments from the Swedish media and the whole theory of Kurdish involvment in Palme's assassination crumbled in the wake of revelations indicating that Swedish intelligence circles together with Hans Holmér, the high ranking police officer then in charge of the Palme case had deliberately biased the investigation by focusing exclusively on the PKK trace.

"Source A" was no longer a useful reference in Sweden and in February 1989 he was extradited to Germany as a main suspect in the murder of a Kurd in Berlin in 1984.

The sudden rediscovery of Ali Cetiner by the German judiciary is remarkable in view of the fact that Cetiner seems to have drawn the interest of German police and security before his departure to Sweden. Indeed, in summer 1987 large scale police raids against presumed PKK-members in Germany were officially justified on the grounds of threats against the life of Cetiner.

Later, it came to light, that the Office of the Federal Prosecutor had appoached Cetiner in the late 80ies making him offers and guarantees including furnishing him with a new identity and a new life in a foreign country against his willingness to testify against the PKK.

After Cetiner's extradition to Germany, the representative of the Federal Prosecutor worked on the Berlin court trying Cetiner for murder in order to obtain a minimal sentence. Cetiner was found guilty and condemned to a five year prison term instead of a life-time sentence. This could happen thanks to the "repenter regulation" (Kronzeugenregelung), a provision which had just been introduced into the German code of penal procedure. The regulation allows for a massive reduction of sentences of repenters turned state witnesses. [The "repenter regulation" was recently prolonged by three years despite strong objections of the acting Minister of Justice, Mrs. Leuthäuser-Schnarrenberger. Together with many German jurists, the minister believes that the use of repenters, rather than improving criminal investigation, frequently leeds to miscarriage of justice.]

Ali Cetiner was set free after three years of imprisonment (2/3 of the sentence) and in the midst of his 10 months long interrogation as a witness at the Düsseldorf trial. However, just as in Sweden, he graduously got entangled into contradictions and manifest lies. Towards the end of the hearing, Cetiner ever more often pleaded his right to refuse self-incriminating testimony.

 

The "repenter" falls silent

Since, Cetiner has completely "vanished" from the PKK trials. In last December, the "repenter", now appearing as the only witness against the last remaining defendant at the second PKK trial in Celle, chose no longer to subject himself to increasingly unpleasant questions of the defence, by simply and suddenly falling silent. The defence vigourously protested against what it called an unadmissible restriction of the fundamental right of the defence to question the witnesses of the accusation. Yet, on 5 January 1993 the court formally conceded Cetiner the right to all out refuse testimony on the grounds that the repenter was suspected of having participated as a member of the PKK's European leadership in the persecution and punishment, including murder, of party dissidents. By giving further testimony the court said, he would be likely to produce evidence for his own terrorist activity and, moreover, expose himself to the risk of penal prosecution due to "false testimony or false insinuation".

In other words: Should Cetiner be further questioned it could come to light that he incriminated innocent co-defendants and that he himself might have carried out the crimes he is accusing others of.

 

Whose agent is Cetiner?

The stunning acknowledgment of the Celle court gives rise to a lot of questions which are likely to remain without answer after Cetiner's disappearance. They are raised in the German daily "Frankfurter Rundschau" by the reknowned journalist Eckart Spoo: Was Cetiner the principle responsible of the crimes on German soil the PKK is charged with? If so, on whose instruction was he acting? Was he already in contact with German intelligence at that time? Whose agent was Cetiner, when he moved to Sweden and at once benefitted from the protection of the SÄPO? How did German and Swedish intelligence cooperate?

As a matter of fact, Lothar Senge, a representative of the Federal Prosecutor admitted in Celle that he had contacted Swedish authorities through "a German agency", as he put it, while Cetiner was staying there and that he had "conversations" with the SÄPO. When questioned about the content of these talks and about contacts with German secret services, Mr. Senge refused to comment on the grounds that his office had not authorised him to testify on these subjects.

 

Can a "repenter" be a credible witness?

The final outcome of the trials in Düsseldorf and Celle now almost depends of the ruling judges' assessment of the credibility of witness Cetiner, who continuously changed his declarations in crucial points until the day he preferred to hold his tongue.

The psychiatric expertise on Cetiner, made at the occasion of his Berlin trial is not likely to be of great help to the increasingly cornered prosecution authorities. It describes the "repenter" as at the "limit of feable-mindedness", of "limited intelligence", "caught in claptrap". The psychiatrist further noted that Cetiner was a "weak person" unable of independant reflexion but good at "learning by heart" and "very suited as a victim of indoctrination".

What can be expected of such a witness?

In any case, 5 defendants further remain in detention on remand and an end to the trials is not in view.

However their outcome may be, their effect not only on German law and practice, but on German society as a whole is a devastating one.

For years, it has served as a justification for further undermining the rights of the accused and the defence, among others by the introduction of the "repenter regulation", it has held alive a hysteria of terrorism which was beginning to fade away and spectacularly linked the terrorism issue to the politically sensitive issues of foreigners and, in particular, refugees.

The encouraging aspect of this otherwise dark story is the role of the defence attorneys. They had to confront a massive public campaign led by the former Federal Prosecutor, Kurt Rebmann, depicting the PKK as Germany's "public ennemy number one". The Federal Office of Prosecution also tried to intimidate the defense itself by opening penal or court of honour procedures against every single defense attorney. But so far, the prosecution has not achieved its central aim - the formal, judicial criminalisation of an entire foreign resistence movement.

N.B.

 

Sources: Interview with Hans-Eberhard Schultz, defense attorney at the Düsseldorf trial, by Jürgen Kräftner, Ulenspiegel No.217, 2.3.93, and No.218, 9.3.93; "Die Quelle A sprudelt auch in Celle nicht mehr", article by Eckart Spoo in Frankfurter Rundschau, 16.1.93; The trial of 20 Kurds in West Germany, doumentation by C.E.D.R.I. (C.P.2780, CH-4002 Basle), 1989.

 

Contact: RA Hans-Eberhard Schultz, Lindenstr.14, D-2820 Bremen 70, Tel:+49/421 663090, Fax:+49/421 656533.