The Court of Justice disregarded the CoE’s PKK decision

[Anthea]

PKK’s inclusion in EU Terror Organisations not motivated enough

The case against the inclusion of the PKK in the the European Union List of Terror Organizations which is renewed every 6 months, concluded that the arguments put forward as the reason for the inclusion were not sufficient

After the list compiled on 10 February 2014, complaints were filed against the inclusion of the PKK in the subsequent lists renewed every 6 months until 2017. The Court of Justice said that the arguments had not been properly examined.

In the case of objections against the decisions taken during these 4 years, the Court of Justice concluded that the decisions were wrong.

The court pointed out that a series of incidents and acts were cited as a reason for the inclusion in the list, but that such arguments were not sufficiently legally argued by the EU.

Noting that the PKK’s situation in the new Middle East scenario has not been taken into account, the ruling determines that the reported charges do not constitute enough arguments for the inclusion on the list.

The court is not sure whether the right of defence has been respected at Turkish courts or treated in accordance with case-law with regard to the attacks attributed to the PKK.

According to the court, it is also apparent from the case-law that the Council must, before acting on the basis of a decision of an authority of a third State, verify whether that decision was adopted in accordance with the rights of the defence and the right to effective judicial protection. The Council is, therefore, required to provide, in the statements of reasons relating to those decisions, the particulars from which it may be concluded that it has ascertained that those rights were respected.

Lawyers representing the PKK in the case claimed, inter alia, that the Council took no account of developments regarding the involvement of the PKK in fighting against ISIS.

Remarking that the PKK has unilaterally declared a number of cease-fires since 2009, the Court said; “In addition, although the statement of reasons for Implementing Regulations No 125/2014 and No 790/2014 makes no mention of it, the applicant correctly states that peace negotiations between the PKK and the Turkish Government took place in 2012 and 2013. In particular, on 21 March 2013 Mr Abdullah Öcalan called for the laying down of arms. In a press release dated 21 March 2013, the High Representative of the Union for Foreign Affairs and Security Policy, Mrs Catherine Ashton, and the Commissioner for Enlargement and European Neighbourhood Policy, Mr Štefan Füle, issued a joint statement in which they welcomed Mr Öcalan’s calling on the PKK to lay down arms and to withdraw beyond the Turkish borders, encouraged all parties to work unremittingly to bring peace and prosperity for all the citizens of the Republic of Turkey, and gave full support to the peace process.”

The Council claimed therefore to be obliged to base the retention of the PKK on the lists at issue on more recent material demonstrating that there was still a risk that the PKK was involved in terrorist activities.

Showing a decision regarding the Ahmet Kaya Cultural Center in France, used to motivate the inclusion of the PKK in the list, the Court said such a formulation is ambiguous, arguing that in fact the Ahmet Kaya Kurdish Cultural Centre and the PKK have to be regarded as two distinct entities. “Consequently, the Council has failed to state to the required legal standard the reasons why it considered that those French judicial decisions constituted decisions of a competent authority ‘in respect of the persons, groups and entities concerned’.

Some parts highlighted in the report are as follows;

“As regards the incidents on which the United Kingdom Home Secretary relied in his decision, on 3 December 2014, to reject the request to end the proscription of the PKK, it is clear that, in its statement of modification of 26 May 2015, the applicant expressly disputes the attribution of responsibility for those incidents to the PKK and the adequacy of the information submitted in support of the conclusion that those incidents correspond to the aims set out in Article 1 of Common Position 2001/931 and to the acts of violence set out in Article 1.

Consequently, it must be concluded that the fact that the order of the United Kingdom Home Secretary was confirmed, in December 2014, on the basis of incidents alleged to have been committed by the PKK in May and August 2014, does not suffice to remedy the failure to state reasons identified in paragraph 97.

As regards the incidents on which the United States authorities relied as the basis for adoption or continuation of the FTO and SDGT designations, it is clear that, in its statement of modification of 26 May 2015, the applicant expressly disputes the adequacy of the information submitted in support of the conclusion that those incidents correspond to the aims set out in Article 1(3)(i) to (iii) of Common Position 2001/931 and to the acts of violence set out in Article 1(3)(iii)(a) to (k) of Common Position 2001/931.

It again has to be stated that the statement of reasons for the contested acts specified in paragraph 81 above provides not the slightest indication that the Council actually considered and attempted to establish whether the alleged facts were well founded. The Council has also, in the course of these proceedings, failed to produce anything to establish that those facts are well founded. On the contrary, the Council is incapable of detailing with any certainty the actual and specific reasons on which the FTO and SDGT designations are based. In particular, as regards the annual reports on terrorism of the United States Department of State, the Council expressly states in its rejoinder, ‘while these reports may indeed reflect information on which the [United States] has based [an] FTO designation or decision to maintain a designation’, they ‘do not necessarily do so’ (rejoinder, paragraph 115).

In the light of the case-law cited in the report, the Council cannot, as in this case, do no more than repeat the grounds for a decision of a competent authority while not itself considering whether those grounds are well founded. That applies a fortiori when the decision in question was not taken by a competent authority of a Member State. The statement of reasons for the contested acts specified in paragraph 81 above is such that it is impossible to know whether the Council fulfilled its obligation of verification in that regard and that the Court cannot exercise its power of review as to whether the facts alleged are made out.

As regards there being nothing to support the delisting of the applicant from the lists at issue, it has to be said that the applicant submitted to the Council some information which, in its opinion, could support the delisting of the PKK from the lists at issue, notably in its letter of 6 March 2015 in response to the Council’s letter informing the applicant of its intention to maintain the applicant’s listing in the lists at issue.

According to the case-law, when comments are made by the person concerned on the statement of reasons, the competent European Union authority is under an obligation to examine, carefully and impartially, whether the alleged reasons are well founded, in the light of those comments and any exculpatory evidence provided with those comments.”

The Court said it must be concluded that the Council failed to state to the requisite standard, in the statement of reasons accompanying the contested acts specified in the report, the actual and specific reasons for maintaining the listing of the applicant on the lists at issue.

[Anthea]

Lawyers: The Court of Justice disregarded the CoE’s PKK decision

Case lawyers issued a statement on the European Court of Justice verdict and said, “The Luxembourg Court has ruled that the decisions between 2014-17 for the PKK to remain on the European Union’s terrorist organizations list are to be annulled.”

Following the European Court of Justice verdict on the PKK, case lawyers Marieke van Eik and Tamara Buruma issued a statement.

The European Court of Justice in Luxembourg issued a verdict on Thursday in favor of PKK, but didn’t touch upon the Council of Europe’s current terror list. The ECJ did rule that the biannually renewed lists between 2014 and 2017 are to be annulled. The lists prepared in 2018 onwards have also used the same reasoning, but the court argued that that process is outside the scope of the case and didn’t touch upon the current list.

Case lawyers Marieke van Eik and Tamara Buruma issued a written statement to announce the verdict. The lawyers said, “The Luxembourg Court has ruled that the decisions to keep the PKK in the European Union’s terrorist organizations lists for 2014-17 are to be annulled.”

The written statement pointed out that the Council of Europe doesn’t declare to the public the decrees renewed every month: “The Council of the European Union issues a new decree every six months to include an organization in the terrorist organizations list of the EU.”

Lawyers stated that the court pointed out the 2012-13 peace negotiations in particular and said the decisions can’t be justified and added that the Council has included certain individuals found guilty of supporting the PKK among the reasoning for the inclusion in the list since 2015.

Lawyers pointed out that the court has deemed these reasonings not appropriate either and stated that some attacks attributed to the PKK but which PKK has denied involvement with have been posed as reasoning by the Council, and that the court didn’t consider these a legitimate reason as it is not in a position to confirm the truth of the incidents.

According to the lawyers, the court also ruled that the Council didn’t present enough information about changing conditions like the peace negotiations and the fight against ISIS.

Lawyers concluded by saying, “In light of all these reasons, the court annulled the decisions between 2014 and 2017 regarding the list [of terrorist organizations]. The 2018 decisions have been issued with the same reasoning, but they don’t fall under the current procedure that has been closed before.

Officially, the inclusion in the current list was not affected by the court’s ruling,” adding that the Council of Europe does reserve the right to appeal.

[Anthea]

CJEU rules PKK wrongly on the terror list

Mahmut Şakar said PKK’s complete removal from the EU terror list will make contribution to the democratisation of Turkey and a peaceful and democratic solution in the Middle East

The Court of Justice of the European Union ruled on Thursday that the Kurdistan Workers’ Party (PKK) was wrongly on the list of terrorist organisations between 2014 and 2017.

We publish below an interview with Mahmut Şakar, Co-Chairman of the International Association for Human Rights and Democracy (MAF-DAD), who spoke to Civaka Azad on the decision of the EU Court in Luxembourg. The interview was translated into English by Thomas Schmidt, and first appeared on Peace in Kurdistan Campaign website.

The European Union Court of Justice ruled on Tuesday that the Kurdistan Workers’ Party (PKK) was wrongly on the list of terrorist organisations between 2014 and 2017. The court in Luxembourg declared the underlying decisions of the EU states null and void due to procedural errors. How do you assess this decision and the reasons for it?

I consider the decision of the Court of Justice of the European Union announced on 15 November 2018 to be extremely important and historic. It is the most significant case against the terror list to date. This case was opened against the EU list on 10 February 2014. The six-monthly renewal of the list has also been challenged. Thus the main subject is the listing from 2014 to 2017. The decision shows that all lists in this timeframe were not legal. To date, the Council of the European Union has put forward arguments in four main categories to justify the PKK’s place in the terror list. The Court dealt with all these arguments and declared them null and void. In the Court’s view, there is insufficient justification as to why the PKK is on the list. In this context, I can say that, with this decision, the arguments of the Council of Member States in favour of the PKK’s inclusion on the terrorist list no longer have any legal basis. If this procedure had been initiated before 2014, there would probably have been such a decision for past years as well. I think that, in the long term, the PKK can no longer be included on the EU terror list with this ruling. The Council of Member States is forced to find new arguments for the regulations and decisions that have been declared null and void. Otherwise the PKK list cannot be continued.

What practical consequences does this decision have, if we remember that the EU terror list was the basis for trials against Kurdish activists in European countries?

There are many trials against Kurdish activists and institutions in different European countries. Many trials have been concluded, some are continuing. On the basis of concrete examples that I myself know of, I can say that in most of these trials the EU terror list is the only basis. If the list of terrorists did not exist and the PKK was not listed, a large number of proceedings would not have been initiated in Europe. Because even the most ordinary democratic activities, such as demonstrations and rallies, are included in the terrorist discourse on the basis of the list and turned into offences. With this decision, the legal basis of such proceedings, which were opened between 2014 and 2017, has been abolished and has lost its validity. This would be a legal interpretation of the court ruling and could develop into a legal discussion. The defendants of these proceedings could now initiate new legal proceedings in discussion with their attorneys and with reference to this court ruling. Beyond these practical consequences, I think that with this decision the prohibitions, repressions and efforts to criminalize the democratic actions and struggles of the Kurds in Europe have lost their effect. At least this is legally true, politically these repressions can be continued. But from a legal point of view, I think that these aspirations have lost their validity. I propose that all activists brought to justice in any European country as a result of democratic events or actions should make this decision their defence basis. In this respect, the court ruling is an important judgment in favour of democracy and the rights of the Kurds.

Why is the PKK still on the terror list despite this decision?

The scope of the proceedings includes the lists between 2014 and 2017. Actually, the lawyers also took action against the list from 2018, but the court wanted to limit the proceedings. As long as the proceedings were open, it would have been possible to lodge a complaint for every renewal of the list and this would have made a court decision more difficult. The court itself has basically determined the duration of the proceedings from 2014 to 2017. It has declared no more objections after that time to accept and thus closed the file. She inspected the lists within these three years and declared that the PKK’s leadership in these lists is wrong. However, as the PKK was also included in the list in 2018 and this was not the case, the PKK was not included in the list.

The list from 2018 and in the case of the further listing of the PKK for the next years will be the subject of a new procedure. I would like to emphasise one thing in particular; the four main arguments put forward so far by the Council of Member States for listing the PKK are the same as those put forward for the decision in 2018. If the court had accepted that the 2018 list would also become the subject of the proceedings, then the decision would very probably have been valid for the current list as well. Thus, the legal battle against this 2018 judgment and other judgments will continue separately. The legal basis for the future leadership of the PKK in the terror list is abolished, even if it practically continues.

Two PKK leadership members, Murat Karayılan and Duran Kalkan, were the plaintiffs. Recently, the U.S. has put a bounty on these two politicians. Is there a connection between the two decisions?

On behalf of the PKK, Murat Karayılan and Duran Kalkan brought the case before the court. For four years, lawyers led the trial on their behalf. Recently, the U.S. suspended a bounty on these two plaintiffs and on Cemil Bayik. Of course, there is no legal connection between these proceedings and the decision of the USA. But I think the following can be said about this; the USA has put a bounty on these three politicians through a discourse on terror. The most important pillar of this discourse was, of course, the EU terror list. This ruling by the Court of Justice of the European Union has greatly weakened this terrorist discourse towards the Kurds, Kurdish politics and the PKK. The US decision therefore has a weak basis. Indirectly, the decision of the Court of Justice of the European Union leaves the US approach in vain. I believe that this court ruling is important in this sense, and that it has at least made it clear that the US decision has no legal basis and that the terrorist discourse has no substance.

In the reasoning, the court stated that, although the list is explained by several incidents, these are not sufficiently substantiated by the EU from a legal point of view. The new role of the PKK in the Middle East had not been taken into account. What exactly is meant by the new role of the PKK?

In the court case, the lawyers also expressed the PKK’s transformation process. For example, at the beginning of the trial there was an ongoing negotiation process in Turkey. This process was also supported by official European representatives. The court emphasizes this fact in its decision. In 2012 the PKK was included in the list, but the court questions why this process was not included in the decisions of the European states. What were these changes? First of all, of course, the negotiation process. The PKK has taken very serious steps towards a peaceful solution. Mr Öcalan’s message in 2013, which was read in front of millions of people at the Newroz festival, is also noted by the court. The support of EU representatives for this process is also mentioned. Furthermore, the Islamic State (IS) has emerged during the negotiation process and the PKK has played an effective role in the fight against the IS in Iraq, Shengal, Kirkuk, Makhmur and many other places. In the Middle East it has taken on a new positive role that cannot be overlooked. All this has been taken to court and the court is questioning why the Council of the European Union is ignoring it. These factors were not sufficiently assessed, which would not have indirectly made the PKK’s leadership on the terror list tenable. The Court, with an open and more progressive attitude than politics, has stated that a decision can be revised over time and that changes in the subject matter must be taken into account. The list of terrorists was in itself also harmful for a possible phase of peace in Turkey and democratization of the Middle East. In a very indirect way, the court also raised the issue of a peace phase, a democratisation phase in the Middle East. That is an extremely positive approach. We hope that the Council of the European Union will take this approach into account and refrain from dealing with such an historic issue as the Kurdish question in a terrorist discourse, in which the PKK is completely removed from the list and thus makes its contribution to the democratisation of Turkey and a peaceful and democratic solution in the Middle East.