Germany’s unlawfulness against Kurds taken to ECHR

When the appeals to Germany’s Federal Constitutional Court to end increasing pressure and lawsuits against Kurds failed, the matter is now being taken to the ECHR. Lawyer Theune said the conflict must be considered in the framework of international law.

The PKK ban declared by the government at the time led by Kohl on November 26, 1993 was the first in the world. The 53-page bulletin announcing the ban didn’t have a single sentence on the Turkish state crimes in Kurdistan, and heavily criminalized the Kurds who were holding protests to let the world know what was happening in their country. Since that day, Kurds who fled the oppression and tyranny of colonial states in Kurdistan to seek refuge in Germany have been fighting an intense legal struggle.

Faced with the strong organization of the Kurdish Freedom Movement, Germany enacted new concepts and new bans with every term like the Turkish state did. In 2010, Germany included PKK in a list of “foreign terrorist organizations” on the Ministry of Justice’s demand. With this decision, it became very easy to launch investigations against Kurds without any evidence. Appeals were filed in the Federal Constitutional Court to end this.

The legal amendment known as the “129b Act” resulted in dozens of investigations being launched against Kurdish politicians. More than 10 Kurdish politicians and activists who had had their asylum claims approved by Germany were issued prison sentences, treated like “terrorists”. There has been a significant spike in the number of investigations in recent years.

According to data from the Federal Prosecutor’s Office, there were 15 PKK investigations in 2013. The number of investigations remained at around 20 for 2014 and 2015, but 2016 saw 40 investigations while in 2017 the number rose to 130. A similar increase was seen in the first two months of 2018. In January and February, 50 new investigations were added to those related to the Kurdish Freedom Struggle.

Lawyer Lukas Theune, who participated in a conference held in Berlin last week for the 25th anniversary of the PKK ban, said there are discussions in the judicial levels about these investigations. According to Theune, some authorities say the issue doesn’t concern them, but there are others who favor more investigations. Theune pointed out that the decision for investigations and trials of Kurdish politicians is taken directly by the Justice Ministry and the Federal Government, and added: “There can only be a political struggle against such a political decision.”

ANF spoke to Lukas Theune, who defends several Kurdish politicians on trial in Germany, about the background of the PKK ban, the arrests and pressure against Kurds, the appeal to the Federal Constitutional Court to exempt the Kurdish Freedom Movement from the 129b act.


-Why do you think the German state banned PKK’s activities 25 years ago, even though the PKK doesn’t have an official organization in this country? Why do you think they insist on it?

It’s difficult to give a precise answer to that question, because there are multiple factors in the enactment of the PKK ban. One of them is Germany’s cooperation and friendship with geopolitically important Turkey that has continued for over a century. We must remember that Turkey has always been a good partner to Germany. For instance, Germany played a role in the Armenian genocide. That genocide was implemented through the cooperation of the two states. I believe this is not the only reason. Germany also has special policies in place for leftists and socialist activists. The German state wants to pressure and end these structures as well. The Kurdish Freedom Movement has an anti-capitalist line, and Germany, an important capitalist coutry, sees this as a threat. I believe that the Kurdish Freedom Movement is criminalized by the German state for wanting to create an alternative society as well.

-Comparing today with 1993, what is the picture we see?

We can’t compare today with 1993. The ban policy and pressure sometimes rises, and sometimes falls. But there are similarities. For example, in the 1990s Kurdish politicians were put on trial, like today. But the ban against symbols has been expanded, bans against Öcalan posters and photographs has increased in particular. YPG and YPJ flags have also been criminalized. And, the police have consistently increased harsh attitudes and violence in demonstrations since last year.


-We see that pressure and bans against Kurds have increased in Germany in recent years. Does this have anything to do with the war the Turkish state is waging against the Kurdish people?

I don’t think the recent increase in Germany’s pressure and arrests is connected to the Turkish state’s war against the Kurdish people. For instance, we saw that the pressure in Germany rose significantly during the peace process from 2013 to 2015. There was an expectation that pressure would decrease due to the peace and solution process, but that wasn’t what happened. I think the increase or decrease in the pressure and arrests are due to discussions within the state. For instance, an official from the Federal Prosecutor’s Office says “The source of this matter is the conflict between the Turkish state and the Kurds, we shouldn’t get involved,” and another says, “No, this does concern us, and the PKK is dangerous for Germany as well”. There are some ideas that occasionally come out on top. Of course we say this is a resistance, these people have not harmed Germany in any way, and that the trials must end.

-There have been demonstrations, conferences and petitions to lift the PKK ban for years. What else can be done?

We are trying to fight the necessary legal battle in Germany as lawyers. And lawyers in Amsterdam are submitting an appeal to the European Court of Justice to remove the PKK from the terrorist organizations list of the European Union. But we must never forget that the PKK ban is a political decision, and can only be lifted through political pressure. The pressure and reaction from the streets and squares must be so high that the federal government shouldn’t be able to stand against it, deciding to lift the ban. This is not just a legal battle, a political battle must also be waged.


-You have been defending Kurdish politicians and activists in courts for years. What do you think the background of these trials are?

I have taken on the defense for Kurdish activists many times. They were accused of “membership to foreign terrorist organizations” as per the Article 129 Section B of the constitution. There was something that didn’t make sense here, because my clients weren’t on trial for crimes they personally committed. They were on trial for, for example, organizing a demonstration, or a Newroz celebration, or transportation for Kurdish cultural festivals. None of these events or demonstrations were banned, they all took place as per the right to demonstrations recognized by the constitution. The Article 129 Section A and B have this absurd situation, you can be tried and sentenced without ever committing a crime.

The second matter is the developments in Northern Kurdistan coming up during the trial process. Most of my clients have stayed in Turkish state prisons, they have been tortured there and they almost all have at least one relative lost in the war. We voiced all these in the courts, but we saw that the courts are overwhelmed. German courts had to take a stand for the resistance against the policies of denial and annihilation a state imposed upon a people. For instance, in the trial of one of my clients, HDP MP Faysal Sariyildiz spoke of what happened in Cizre.

-How did German judges and members of the court react when they heard what happened?

We saw then that the German judges had no information on the massacres in Cizre. When they were told that a city was surrounded and the Turkish army bombed it with tanks and jets, the court gave evasive responses like “So who can we put on trial now?” We saw that the German judiciary has no information on the developments in Northern Kurdistan. Nobody from the court had ever been to Kurdistan, or seen anything with their own eyes. These were details that stood out in the trials.


-There is a perception around the world that the German judiciary is independent. Could this be seen in the trials of Kurdish politicians?

The German judiciary isn’t independent when it comes to these cases, it is guided by the politics. This can be seen especially clearly in detentions and arrests before state officials visit. For instance, whenever Erdogan (or Davutoglu before him) would visit Germany, or during Foreign Minister Heiko Maas’s visits to Turkey, Kurdish politicians are taken into custody and pressure against Kurds intensifies. Because they are aiming for a good collaboration with Turkey.

The German Justice Ministry also decides who will be included in the penal act against “foreign terrorist organizations”. I stress this once more, the courts don’t determine this. The Justice Ministry and the government decides they will punish this act and not punish the other. I want to state clearly that this is a political decision, made by politicians, and that the content of the cases is political.

-You had appealed to the Federal Constitutional Court to exempt the Kurdish Freedom Movement and Kurdish politicians from the Article 129 Section B. What is the latest situation?

We appealed to the Federal Constitutional Court under several titles and voiced our complaints. We appealed the Justice Ministry’s arbitrary position determining who would be put on trial or not. We demanded that the confidentiality orders be lifted from the case files and that the Justice Ministry and the Federal Government grant our right to see the correspondence that led to the arrests. The Federal Constitutional Court rejected our appeals. As a next step, we will take this unlawfulness to the ECHR. Because the conflict between the Turkish state and the PKK must be considered in the framework of international law, and not “anti-terrorism” laws. We saw that the German judiciary can’t issue a verdict on this matter, and we decided to go to the ECHR in the end.