BRUSSELS (ANF) – A court in Brussels has made what looks like a landmark decision against the prosecution of Kurdish officials and associations on terrorism charges.
In 2006 an investigation was begun by the Belgian Federal prosecutor against Kurdish politicians and associations for alleged membership and support to the Kurdistan Workers’ Party (PKK).
Kurdish politicians and officials of the Kurdistan National Congress based in Brussels, Remzi Kartal, Zubeyir Aydar and Adem Uzun as well a Kurdish television channel and cultural associations in the country were under investigation. A total of 36 people were included in the indictment with the case beginning in October 2015.
A decision by the court today ended the trial with the judge making a landmark decision.
Saying that an armed conflict was going on in Turkey, the judge decided the terrorism law could therefore not be used in the case.
The prosecution against the Kurdish television channel was also dropped on the grounds it could be a violation of the right to freedom of speech the judge said.
A statement by the Kurdistan National Congress (KNK) stated, “The court decision recognizes that a war is going on in Turkey and that the allegations of the Turkish state, saying that the Kurds are terrorists, is false.”
Commenting on the case, KNK official Adem Uzun tweeted, “The terror case against the Kurds has been dropped. Belgian court decided in favour of Kurds. It said this was an armed struggle and could not be prosecuted as terror.”
The decision will go to the Federal prosecutor who has the right to overturn it.
Turkish media reported the development as a “scandalous decision” by a Belgian court.
Translation of Court’s ruling
The article 141 bis from the Belgian criminal law says that if there is an armed conflict, the terrorism law can not be applied.
The fact whether yes or no there is an armed conflict somewhere should be judged on basis of facts.
It is not sufficient to say that the PKK is on the list of terrorist organizations because those lists are inspired by geopolitical reasons and we have to face the fact that there are countries who do not agree with the fact that some organizations are on the list.
So to decide whether yes or no there is an armed conflict, we have to check the intensity of the conflict and how well organized the actors of the conflict are..
The main condition whether a conflict is existing is based on the Geneva conventions their protocols and the statute of Rome.
The statute of Rome speaks about long going armed conflicts between authorities and organized armed groups.
During the discussion in front of the court the history of the PKK was given by the defense lawyers, the way of working of the PKK, the political arm of the PKK and the army. The lawyers of the persons who are prosecuted spoke also about the PKK since the seventies and about the armed struggle since 1984.
The defense lawyers also spoke about a lot of other incidents, the fact that heavy weapons are used and the fact that there is a structure of command who make it possible that military operations are carried out.
The defense also refers to important sources as there are the red cross etc.. those sources speak about armed conflict.
The defense also refers to the fact that the PKK undersigned the Geneva convention protocols and other international agreements as there are not using child soldiers.
As for a lot of other conflicts it is clear that there is an evolution. Maybe in the beginning there could not yet be spoken about an armed conflict but in the mean time you can clearly speak about an armed conflict.
Also, we can not deny the fact that the Kurdish movements are now fighting in the Syria conflict and the conflict against Daesh.
The fact that Abdullah Ocalan, the spokesperson of the PKK, made an appeal in march 2013 to have a cease fire and told the armed groups to withdraw from the Turkish land, shows that they were controlling part of the Turkish land and that shows also the scale (proportion) of the Kurdish force in the region. it is unimaginable that the Turkish state would have peace negotiations with a pure/mere/sole terrorist organization.
So the court comes to the conclusion that there is an armed conflict in the sense of the international humanitarian law.
So the Belgium terrorism law cannot be applied.
For the television, he adds the following arguments. The article 141 ter of the Belgian criminal law says that the terrorism laws can not be used to violate the fundamental rights as there are freedom of organizations of speech, freedom of press etc…
We have to ask ourselves if prohibiting of making propaganda should not be considered as a violation of the freedom of speech.
The court considers that it is making propaganda, but since it is an armed conflict, that propaganda can not be considered as terrorism. The judge says also that the prosecutors do not give enough elements to show that the television is inciting to commit terrorist acts.