The trial against Kenan Ayaz (official spelling: Ayas) has begun at Hamburg Higher Regional Court amid great public interest. The Kurdish activist is accused of being a member of the Kurdistan Workers’ Party (PKK) in accordance with sections 129a/b of the German Criminal Code (StGB). Ayaz was arrested at Larnaca Airport in Cyprus in March 2023 on the basis of a European arrest warrant requested by the Federal Court of Justice and extradited to Germany at the beginning of June. Since then, he has been detained in Hamburg’s Holstenglacis remand prison under stricter prison conditions.
Solidarity with Kenan Ayaz from Cyprus
At the start of the trial, the ‘Free Kenan’ solidarity committee called for the immediate release of Kenan Ayaz at a rally in front of the Hamburg Higher Regional Court. In a speech, Giorgos Koukoumas (AKEL), a member of parliament who had travelled from Cyprus, pointed out the political background to the trial and said that Kenan Ayaz was not accused of any acts of violence. The AKEL politician reported on the great solidarity with Ayaz and the protests against his extradition to Cyprus. He called for the PKK to be removed from the EU list of terrorist organisations and expressed his full support for the Kurdish people’s struggle for dignity.
Great public interest
The hearing was observed by numerous media representatives and dozens of other people, including Cypriot MP Koukoumas, the co-chair of the Hamburg Left Party parliamentary group, Cansu Özdemir, as well as former HDP MPs Selma Irmak and Nihat Akdoğan, who are living in exile in Germany. Not all those interested were allowed into the auditorium due to a lack of space, and queues formed outside the courtroom due to the court’s poor planning.
Kenan Ayaz greeted with standing ovations
The defendant flashed the victory sign as he entered the courtroom and was greeted with standing ovations by the trial observers. During the identification procedure, the defendant, who was born in Midyad in the province of Mêrdîn (tr. Mardin), stated that the spelling of his surname as ‘Ayas’ and his date of birth (1 April 1974) had been incorrectly registered with the Turkish authorities. His mother had told him that he was only born in 1975, Ayaz explained and took the opportunity to greet the large audience.
Assignment of second public defender rejected
At the beginning of the trial, Kenan Ayaz’s defence demanded the appointment of a second public defender. In her counter-submission, lawyer Antonia von der Behrens argued that the criminal defence senate is made up of three judges and that the prosecution is represented by two people. Due to the size of the case file (44 volumes of TKÜ and 56 volumes of structural files), an effective defence could not be managed by a single lawyer. Presiding judge Wende-Spors refused to appoint a second defence lawyer, Stephan Kuhn. In addition to von der Behrens and Kuhn, the defence team also includes Cypriot lawyer Efstathios C. Efstathiou.
Not charged with violent offences
The indictment does not accuse Kenan Ayaz of committing an act of violence. The indictment is based solely on the fact that he communicated and met with a large number of people in northern Germany and North Rhine-Westphalia between 2018 and 2020 on behalf of the PKK, some of whom are also categorised as members of the PKK by German law enforcement authorities. He is also alleged to have organised legal demonstrations and rallies and participated in fundraising activities.
Politically motivated criminal proceedings
After the indictment was read out, the defence made a detailed opening statement in which the political nature of the proceedings was made clear. The defendant is expected to make a statement on the political charges against him on 13 November. Two witnesses have been summoned for the next day of the trial on 7 November. The other hearings are scheduled for 16 November, 23 November, 24 November, 27 November, 30 November, 5 December, 7 December, 11 December, 14 December, 19 December, 20 December and 21 December 2023, starting at 9.30 a.m. each day.
Opening statement of the defence for Kenan Ayaz
In the opening statement, the defence lawyers Antonia von der Behrens, Stephan Kuhn and Efstathios C. Efstathiou stated the following facts:
The representative of the Federal Public Prosecutor General stated in the indictment that, in the view of the Federal Public Prosecutor’s Office, the PKK is a foreign terrorist organisation and that Mr Ayas was the responsible cadre of this organisation for the PKK region and the PKK area of Hamburg from September 2018 to June 2019 and is alleged to have had a corresponding responsibility for the North Rhine region and the Cologne area from July 2019 to June 2020, which constitutes criminal conduct under Section 129b(1) of the German Criminal Code (StGB).
Mr Ayas is therefore being accused of one of the most serious charges of all, namely terrorism. He is accused of a crime, punishable by a minimum sentence of one year.
The situation in Turkey, the Kurdish movement and the Turkish-Kurdish conflict have changed fundamentally between the first conviction of a Kurd in 2013 by the Hamburg Higher Regional Court under Section 129b of the German Criminal Code and today. However, these substantial changes have not led to any moderation in the actions of the Federal Public Prosecutor’s Office and the Federal Criminal Police Office against alleged members of the PKK. On the contrary, prosecution is being systematically extended to people who are not even labelled as cadres by the prosecution authorities, and ever higher penalties are being demanded.
This approach is incomprehensible from the point of view of the principle of guilt that governs German criminal law and also in terms of legal policy. After all, the last ten years have clearly shown that, on the one hand, Turkey under Erdogan is an autocratic regime with dictatorial traits, in which human lives are worth nothing and which cruelly persecutes Kurds, including by means contrary to international law, and that, on the other hand, the Kurdish-patriotic movement is an ally both with regard to the democratisation of Turkey and in the fight against the Islamic State and Islamic fundamentalism.
Turkey has openly supported the Islamic State against the Kurds in Syria and Iraq: inside in Syria and Iraq, the Turkish security authorities have watched as IS has planted bombs in Turkey against peace demonstrators and Kurdish election rallies, Erdogan has allowed the peace negotiations with the PKK to fail in the interests of maintaining his power and has had all those involved in the negotiations on the Kurdish side imprisoned, at the latest since the failed coup attempt, he has installed an autocratic regime with dictatorial traits that mercilessly persecutes any opposition and imprisons large numbers of elected Kurdish mayors and people from Kurdish civil society, he has changed the constitution and had himself elected as an almost omnipotent president and is waging wars of aggression against the Kurds in Syria and Iraq that violate international law: inside Syria and Iraq, using poison gas, killing countless Kurdish civilians and destroying civilian infrastructure with bombs and drones in these countries, threatening Greece with an invasion and recently even openly supporting the terrorist organisation Hamas.
At the same time, the PKK and the Kurdish movement have made great efforts to reach a peace agreement with Turkey and have made major concessions to this end, including being prepared to lay down their weapons. The YPG/YPJ, supported by fighters from the HPG, i.e. the PKK, have fought IS in Syria and Iraq and saved many Yezidis in the Sincar Mountains from the genocidal jihadist gangs. The USA is still fighting alongside the YPG/YPJ in Syria against IS and recently even shot down a Turkish drone. At the same time, the Kurdish movement in Rojava has built a community based on the principles of democratic confederalism in a war situation, in which discrimination based on gender, religion, ethnicity or language is prohibited. In Iran, it was the Kurdish women who led the democratic uprising and became known worldwide with the slogan ‘Jin, Jiyad, Azadî’ and in Turkey it was the HDP, the legal Kurdish party, in which Armenians, LGBTQ people and Turkish leftists are represented alongside Kurds, on which great hopes for the democratisation of Turkey were and are also placed abroad. And yes, the PKK is still engaged in an armed struggle with Turkey, but unlike Turkey, it does not indiscriminately attack civilians, but defends itself against Turkey’s attacks, which violate international law, and its attempts to destroy Kurdish autonomy in Rojava. It defends itself by attacking military targets or structures supporting the military and engages in battles with the Turkish military. The HPG publishes press releases on the fighting and attacks that have taken place and gives casualty figures. The guerrillas are therefore not hiding, they operate openly like an army, so that the indictment of the Federal Public Prosecutor General can be based very significantly on the publications of the Kurdish movement.
In Germany, the Kurdish movement is or could be an ally in the fight against the Islamic State and other fundamentalist terrorist organisations and movements. It is clearly not in the interests of the Federal Republic of Germany or the EU to continue persecuting a movement rooted in Turkey and the Middle East and strongly represented in Europe, for which the equality of all religions and all genders is a central issue, as terrorist in today’s world.
The explanation for the fact that Kurds in Germany continue to be intensively persecuted as alleged members of the PKK as terrorists and that considerable resources are spent on this can only be that these criminal proceedings are not in Germany’s domestic but in its foreign policy interests. In short, the ongoing and even increasing criminal prosecution of Kurds under Section 129b of the German Criminal Code is due to the pressure exerted by Turkey on Germany and other EU member states to prosecute alleged supporters of the PKK without restraint.
The fact that criminal proceedings can be conducted at the request and in the interests of a foreign autocratic state is due to the special nature of the offence under Section 129b StGB, which criminalises membership of a foreign criminal or terrorist organisation. Criminal proceedings under Section 129b StGB against alleged members of a foreign criminal or terrorist organisation can only be conducted if a so-called authorisation to prosecute has been granted. The granting of authorisation to prosecute is a purely administrative decision taken by the Federal Ministry of Justice following consultations with the Federal Foreign Office and the Federal Chancellery, among others. According to the Federal Government, foreign policy interests also play an explicit role in the decision of the Federal Ministry of Justice at its ‘discretion’. If Turkey did not have such a favourable geostrategic position and were not a member of NATO, the authorisation to prosecute the PKK would certainly not be granted, just as it is not granted for other foreign militant groups, as there is no interest in prosecuting them.
The proceedings here are therefore originally political, as they are based on a political decision, the authorisation to prosecute. Without this decision, Mr Ayas would not be in the dock today. Not only the decision to prosecute Mr Ayas is a political one, but also the accusation for which he is being prosecuted is that he has been politically active for certain political goals in a legal manner. This has nothing to do with ordinary criminal proceedings and that makes it very difficult for Mr Ayas to defend himself against the accusations.
Mr Ayas is a political person, a political Kurd. He has suffered massive political persecution in Turkey. He has already been unjustly imprisoned twice in Turkey. He was arrested in 1993 at the age of 18, severely tortured and sentenced to 15 years in prison solely on the basis of his false and unsubstantiated statement that he had been a member of a PKK committee in Alanya for two months, of which he had to serve eleven years in the worst possible conditions. After his release he did not leave Turkey, but took part in legal Kurdish educational work and in the election campaign of the legal Kurdish party, for which he was imprisoned again for six months and subsequently acquitted by the Turkish judiciary in 2007, but not compensated. In 2010, Mr Ayas was charged in Turkey with alleged membership of the KCK on the basis of his educational work in Diyarbakir. He is one of 151 defendants in the main KCK trial, a pilot trial designed to criminalise and marginalise Kurdish civil society in its entirety. Although Mr Ayas was able to flee to Cyprus and was recognised there as a political refugee, the Turkish regime is still looking for him and wants to convict him on the basis of the KCK indictment.
Mr Ayas himself will make a detailed statement about his personal circumstances. The offences of which Mr Ayas is accused are of a political nature.
The indictment here accuses Mr Ayas exclusively of social and political behaviour that is not punishable in Germany and is protected by fundamental rights. In the indictment, this behaviour, which is legal in itself, becomes an ‘act of activity’ within the meaning of § 129 b StGB, because he is alleged to have carried out the individual acts in the interests of the PKK. Specifically, he is accused of being involved in the organisation of demonstrations, communicating and meeting with people who are also alleged to be PKK members, sending people to visit the hospital and taking an interest in collecting donations. He is not accused of a single act of violence or any other offence punishable as such in Germany. Participation in the organisation of a legal and registered meeting, for example by organising a music system or providing a room, becomes a terrorist activity according to the completely unrestricted understanding of German criminal law on association solely because the person is alleged to have carried out these activities in the interests of the PKK and as part of the PKK hierarchy. It is not recognisable from the act itself whether it could be an act of activity or not. When is a request to visit a person in hospital a humane gesture and when is it a terrorist act? When is the co-organisation of legal assemblies an exercise of a fundamental right and when is it an act of terrorism? This type of reinterpretation of legal behaviour raises questions with regard to the principle of certainty, which applies not only under the German Basic Law but also under the ECHR.
The proceedings here are not only political because of the authorisation to prosecute, but must also be seen as such for Mr Ayas for another very specific reason. This is because of the date on which the European arrest warrant was applied for against him. For an objective observer, this point in time must give the impression that the prosecution of Mr Ayas was very specifically in the interests of the Turkish regime.
As is generally known, the Turkish regime took advantage of the Russian war of aggression against Ukraine and the endeavours of Finland and Sweden to join NATO to de facto force Sweden, Finland and the entire NATO states to take tougher action against the PKK and other organisations classified as terrorist by Turkey. For months, German media coverage was dominated by Erdogan’s stalling and demands. Specifically, at the NATO summit in Madrid on 29/30 June 2022, at which the accession of Finland and Sweden was officially negotiated for the first time, Erdogan demanded that Sweden in particular change its laws and make otherwise legal and peaceful acts, insofar as they could benefit the PKK, punishable in Sweden in the future. In contrast to Germany, it was and still is not a criminal offence in Sweden, Cyprus, Switzerland and Belgium to carry out legal acts that are (also) in the interests of the PKK.
After considerable pressure and bluster from Erdogan, Sweden complied with this obvious interference in its domestic affairs in June 2023 with a very far-reaching amendment to the law. It remains to be seen whether all Kurdish people, whose political activities were previously completely legal, will now also be prosecuted as terrorists. At the very least, it is clear that an EU state has allowed its security policy and the content of its criminal law to be dictated by an autocratic regime with dictatorial tendencies. In this sense, Germany is also prepared to accommodate Turkey by prosecuting the political activities of Kurds.
From 5 to 7 July 2022, just a few days after the NATO summit, the German Attorney General Dr Frank met not only with the Turkish Attorney General and the President of the Court of Cassation, but also with Turkish President Erdogan, in a meeting that was completely inappropriate for the level. It is not known why this meeting took place so soon after the NATO summit and during the Turkish regime’s ongoing massive media and foreign policy efforts to take tougher action against the PKK. Even in its answer to a minor parliamentary question in the German Bundestag, the German government did not provide any reason for this meeting or what the specific subject of the discussion was.
These circumstances must give Mr Ayas the impression that the decision to apply for a European arrest warrant against him was motivated by foreign policy. As explained, Mr Ayas has been one of the 151 defendants in the main KCK trial since 2010; even if the accusations are unfounded and are based solely on his Kurdish educational work, this nevertheless shows the Turkish regime’s interest in his person.
Applying for and issuing a European arrest warrant in Germany on the charge of being a member of the PKK is nothing unusual in itself. In recent years in particular, the Federal Public Prosecutor’s Office has increasingly used this instrument to extend the German concept of criminal prosecution of politically active Kurds to all EU member states.
What is striking in the case of Kenan Ayas, however, is that the investigations did not suggest applying for a European arrest warrant and that this was only applied for two years after the de facto conclusion of the investigations and at the height of the discussions about the accession of the aforementioned states to NATO and shortly before the Federal Public Prosecutor General’s visit to Erdogan.
In detail:
The first and last status report of the Federal Criminal Police Office in the investigation proceedings against Kenan Ayas is dated 25 May 2020. Covert investigative measures had expired by the end of April 2020 at the latest. There were no more alleged findings about Kenan Ayas and, as far as can be seen from the file, no attempt was made to generate them until March 2021. According to a note from the BKA, Kenan Ayas was allegedly subjected to an undercover identity check in Cologne on 21 November 2019 and identified himself with a Cypriot travel document for refugees valid until 28 September 2020. Since then, the BKA has known that Kenan Ayas had connections to Cyprus and should have returned there by September 2020 at the latest to renew his travel document. The aforementioned status report of 25 May 2020, which summarised the investigations carried out up to that point, did not recommend the issuing of a (European) arrest warrant and the Federal Public Prosecutor’s Office also failed to act. The investigations had simply not generated any urgent suspicion against Kenan Ayas; the status report stated that he was ‘presumably’ the regional manager of North Rhine. If, on the other hand, there had been an urgent suspicion from the point of view of the prosecution authorities, it would have been obvious to apply for a European arrest warrant at that time, which would have been applied if Kenan Ayas had had to return to Cyprus because his passport had expired.
However, as far as can be seen from the file available to us, the investigations were simply suspended for around ten months. The BKA only became active again on 4 March 2021 and asked the Federal Office for the Protection of the Constitution whether it had any new information about Kenan Ayas. In response, the Federal Office reported on 23 April 2021 that ‘Kenan Ayaz’ was ‘active in a leading role for the PKK’ in Switzerland. In a memo dated 28 May 2021, the BKA noted that there was no longer any information about Kenan Ayaz in Germany, but that the police exchange of information with Cyprus had revealed that he regularly travelled to Cyprus or was there. No further measures were suggested, in particular the issuing of a (European) arrest warrant. From the point of view of the Federal Criminal Police Office and the Federal Public Prosecutor’s Office, the investigations clearly did not give rise to any urgent suspicion of an offence at this time either.
Subsequently – as far as can be seen from the files – nothing happened in the investigations for another eleven months. For reasons that are not apparent from the file, the investigating public prosecutor began reviewing the file in mid-April 2022 and on 11 May 2022 applied for a European arrest warrant, which was issued by the investigating judge of the Federal Supreme Court on 31 May 2022 in accordance with the application. The evidentiary basis on which the arrest warrant was now applied for had not changed since the first and only status report of 22 May 2020. In May 2022, there was also no other evidence or findings – apart from the official testimony regarding Switzerland, which, however, plays no role in the allegation of the offence. So while two years earlier there had clearly been no urgent suspicion of an offence, this was now the case almost two months before the NATO summit in Madrid and the Attorney General’s visit to Erdogan. And the arrest warrant applied for at this time concerned a person who not only had a long history of persecution in Turkey, but is also a defendant in the main KCK trial. If this is all just a coincidence, which is of course also possible, the Federal Public Prosecutor’s Office would have to explain why the European arrest warrant was only applied for on an unchanged basis of evidence immediately before these events and at a time when Erdogan was putting massive pressure on the NATO states to persecute the PKK and the Kurdish movement.
Finally, the political nature of the proceedings is also reflected in the fact that the evidence base is extremely weak and the evidence is to be based to a large extent on unverifiable intelligence service information and general allegations about how the PKK is generally organised in Germany, from which conclusions are drawn about the person of Mr Ayas without further evidence.
The case of Mr Ayas is not unique. In the ten years during which section 129b proceedings have been conducted for membership of the PKK, there has been a massive lowering of the standard of proof. Against this lowered standard of proof, it is de facto impossible to defend oneself in silence, which is why this constitutes a violation of Art. 6 ECHR.
This lowered standard of proof means that official testimonies from the Office for the Protection of the Constitution and/or a few text messages or telephone calls are sufficient for a conviction for alleged membership of the PKK, from which a position of the communicating person in the PKK hierarchy is supposed to emerge. If connection A sends a text message saying ‘Organise an action for Afrin’ and connection B replies ‘Yes, Abi’, then from the point of view of the German law enforcement authorities this should already constitute evidence that the person addressed as ‘Abi’ is a higher-ranking cadre – an area or regional leader – who has given an instruction to a cadre or so-called front worker under him. Such an alleged instruction is then considered a criminal offence. If connection A sends and receives several text messages of this kind and invites people who are considered to be PKK cadres to a meeting, this is sufficient for a conviction to a prison sentence for membership of a foreign terrorist organisation, with the consequences that the person concerned, if they do not have a German passport, loses their refugee status, is deported and, if the authorities so wish, is also deported to Turkey, unless the administrative courts prohibit this in good time.
In the case of Mr Ayas, the alleged evidence for the accusations made is also very poor. The evidence cited in the indictment consists almost exclusively of text messages, a small number of telephone calls and information from the domestic intelligence services. The attribution of the text messages and phone calls to Mr Ayas is largely based on the fact that in some phone calls the owner of the connection attributed to him was addressed as ‘Kenan’. However, Kenan is a very common name and there is also at least one other Kenan in the intercepted phone calls. In the phone calls and text messages attributed to him, he is said to have called for or helped organise demonstrations, made appointments with people, sent people to visit him in hospital or talked about food. According to the investigating authorities, the supposedly high status of the speaker or text message writer is indicated by the fact that he was sometimes addressed as ‘Abi’.
The investigations appear to have been very superficial and with a clear objective in mind. The aim was to find individual conversations or data that could support the theory that Kenan Aya’s regional manager had been in two places. In contrast, the content of the text messages and telephone conversations that speak against this thesis were omitted.
A clear omission here is any discussion of the fact that it does not fit in with Mr Ayas’ alleged high position that he is said to have appeared under his real first name. The prosecution attempts to reinterpret this by referring to his real first name as the ‘alias Kenan’. However, according to the findings of higher regional courts in other proceedings concerning membership of the PKK, even cadres at regional level have so-called ‘code names’ and even more so those who are said to have been in a higher position.
Likewise, the prosecution does not address the fact that, with regard to Mr Ayas’ alleged positions in Hamburg, the investigations have revealed a large amount of contradictory information as to which person or persons were actually the PKK leader(s) for the Hamburg area and the Hamburg region in 2018/2019.
In particular, in the judgement of another senate of the Higher Regional Court of Hamburg, which sentenced Mustafa Celik as area leader for Bremen for the year 2018/2019, the name of Mr Ayas is not mentioned as the alleged cadre superior to Celik, but rather the higher cadres are said to have been called ‘Zozan’ and ‘Yasar’. It therefore appears that from the large number of telephone calls and text messages that were monitored, only those that supposedly supported the Office for the Protection of the Constitution’s claim about Kenan Ayas were selected and information that contradicted this thesis was omitted.
Despite the considerable difficulties to which Mr Ayas is exposed by the aforementioned conduct of the investigation and proceedings, and which correspond with the refusal to appoint a second public defender, he will exercise his right to defend himself in silence, but he will not remain silent about the political accusations.