Gezi Trial: Arrest of Osman Kavala to Continue

*Illustration: Özge Kepenek

Click to read the article in Turkish / Kurdish 

The second hearing of the case against 16 people for organizing the 2013 Gezi Park protests has been held at the İstanbul 30th Heavy Penal Court in Silivri district.

All the defendants completed their statements in the previous session of the trial, the first hearing of which began on June 24. The prosecutor's office requested the continuation of the arrests of Kavala and Yiğit Aksakoğlu. The court released Aksakoğlu in an interim verdict. Businessperson Osman Kavala, on the other hand, has been behind bars for 625 days.

The defense attorneys gave their statements in today's (July18) hearing. After the statements, the prosecutor demanded the continuation of Kavala's arrest. The court decided by a majority of votes that his arrest shall continue.

The next hearing will be held on October 8 and 9.

Fikret İlkiz: Did you go from evidence to suspect?

Fikret İlkiz, the attorney of Mücella Yapıcı, Tayfun Kahraman and Can Atalay, spoke first. He read some parts of the indictment to "introduce his criticism."

"We have to talk about the language of the indictment. This is a matter we have made an effort to understand, the Turkish used here is difficult to comprehend. Years ago, on TV, a Minister of Justice said, 'Indictments are of low quality'.

"For instance, the indictment says, 'Although at the time, regarding the indictment and the investigation, the suspects and press outlets claimed that the investigation was initiated by FETÖ [Fethullahist Terrorist Organization]; a reevaluation of all evidence was carried out, thus all external influence has been removed.

"If you wish, you may want to briefly and clearly explain to me: Who carried out this reevaluation? We always said from the very start what FETÖ was. Now you say that the unlawfully gathered wiretapping evidence has been re-evaluated.

"So what exactly does this reevaluation mean? Where is the new value in this indictment written in 2018? We do not understand the language of the indictment when it says these. But we do understand, very well, its philosophy and logic.

"Heidegger said: 'Language is the house of being.' The limits of language are the limits of the world. We have seen the limits of this indictment's world. So let us now speak in the limits of our own world, in our own language.

"If laws must be clear, then it is our right to expect an indictment that complies with laws. You have to speak in the language of the law, in the language of the Convention on Human Rights, in the language of laws that accept resistance as a right.

"The defendants, in this case, are knowledgeable about the political and economic structure of this country. And on the other hand, they are skillful people. We know their value. We recognize the value of people.

"The Supreme Court of Appeals states, in a ruling, that 'an indictment must be detailed, the defendant must understand what s/he is charged with, and the right to defense must not be restricted.

"In brief, this indictment is against the ruling of the Supreme Court of Appeals General Assembly dated 20.11.2007. According to the Charter of Judges and Prosecutors, you swore an oath to 'respect human rights, protect human dignity and treat everyone equally'.

"I propose that you question this 657-page-indictment by asking: 'Did you go from evidence to suspect? In your evaluation, did you establish a causal link between the action and the law?' No, you didn't, that's why this indictment was written in this manner.

"Since you went back to 2013 to carry out this reevaluation, did you not see the penal case filed against 26 people including Mücella Yapıcı and Tayfun Kahraman in 2014? Can Atalay and Turgut Kazan were their attorneys.

"There was no mention of 'sui generis' events, but there was an indictment that established a causal link. And all defendants, including Mücella Yapıcı and Tayfun Kahraman, were acquitted.

"There is no evidence showing that Taksim Solidarity is a criminal organization. The 33rd Court of First Instance rejected an indictment that alleged this.

"If there is a case already filed for one action, there can be no second prosecution. It is a violation of the right to a fair trial. You cannot try someone twice for the same alleged crime. Nor can you sentence them!

"What we can say for Mücella Yapıcı is to repeat her words in her defense: 'You asked these questions 5 years ago, I was tried. And if, 5 years later, you claim to have carried out a reevaluation, then, our own reevaluation will be exactly the same.

"You cannot keep a threat of punishment hanging over the heads of people like the Sword of Damocles. There are existing rulings on the same investigation. I feel ashamed to say you disregard them. Even verdicts of conviction prohibit you from writing such an indictment.

"Where does the money come from to print books on Judicial Reform, or on freedom of expression, for symposia, training, or to send prosecutors to Strasbourg? There are 21 completed projects in the field of the judiciary, with a total budget of 96 million euros.

"All the books carry the EU logo. Constitutional Court symposia, Strasbourg training, they are all funded by the EU. The Ministry of Justice is the leading beneficiary of the funding. And in the indictment, you accuse people of using funding, although they didn't.

"The Gezi protests have already taken their place in history. Is a judicial act necessary for us to ascertain this? The prohibition of the abuse of law also involves opposition to the values of the European Convention on Human Rights.

"Do you have the right to abuse the law in this way, in the context of such a historical event like Gezi? We don't think you do. Ultimately, from our viewpoint, your indictment is an indictment that fails to recognize the value."

Öztürk Karaduman: We have lived with a perception of political paranoia

Öztürk Karaduman, the attorney of Tayfun Kahraman and Can Atalay spoke.

"The recent history of Turkey is the history of the citizens' democratization struggle against the state, through legal means.
This indictment is significant for Turkey's near future as well.

"We here face a trial based on a re-evaluated indictment, initially prepared by FETÖ, while the coup attempt by this same organization, which was once in a political alliance with the government, is discussed outside.

"If the current political authority truly claims to fight against FETÖ, then this indictment should not be re-evaluated, it should be rejected.

"Seriousness is the most important aspect of the law. Yet, on page 29 of this indictment, there is a reference to a post by an anonymous writer at an online forum called Uludağ Sözlük, as one of the sources of information of this indictment.

"That is the measure of how serious this indictment is. One of the sources of your re-evaluated indictment is an online forum where bored teenagers chat and write.

"Although Gezi was acquitted 6 years ago, since the Pastor Brunson case, we have lived with a perception of political paranoia claiming that foreign powers prevent Turkey's success. We here face a trial reminiscent of the paranoid thinking of the McCarthy era.

"The link between the Gezi resistance and the purported organizers of Gezi has not been proven, yet it is claimed that there is a link between Gezi and imperialistic forces.

"If anyone is looking for a link to imperialism, it is the government that has to place itself under scrutiny.

"In Turkey, in today's political atmosphere, where every activity is conducted by imperialist forces; it is baseless, unfounded and against current political realities to claim that act of freedom by citizens have links with imperialist forces.

"This indictment is an indictment of conspiracies. It aims to erase the distinct resistance methods of forces of opposition. Other than that aim, there is no answer to the question: 'Why has this case been opened after 6 years?

"What this case actually says is 'If you don't remain within boundaries drawn by the government, you will face trial again and again, even after 5 or 10 years.'

"This indictment has been re-evaluated and used after six years, in order to narrow down potential opportunities for dissent. It has gone down in history as an indictment that negates its own claims.

"We demand the rejection of this indictment, and for it to go down in history as an indictment without any value whatsoever."

Evren İşler: Why did you wait for six years?

"You are carrying out judicial proceedings with an indictment written 6 years after Gezi. If there truly was a crime committed against the government would it be possible for prosecutors to wait 6 years to act?

"Even this indictment that we have criticized so severely describes the Gezi resistance as non-violent action. It cannot show any evidence that the defendants used force or violence. In fact, it does not even claim this.

"The indictment contradicts itself in terms of the crime it brings as an allegation. And in addition to all its mistakes, it displays a great lack of seriousness when making legal descriptions.

"You cannot write an indictment just by adding the word 'indictment' at the top of a document. What we read in the indictment are the views of the chief prosecutor.

"Nowhere in the indictment do we find any relationship between evidence and perpetrator. 'It has been understood, it has been shown, the impression has arisen, it is striking that, it has been seen that' that is the wording repeated throughout the indictment.

"And that is not all. The indictment accuses the defendants of acting insolently. It also uses a religious term, şirk koşmak, practicing shirk [a term used to describe the sin of worshipping anyone other than God], within the context of the constitutional order.

"According to the Code of Criminal Procedure, a verdict can only be given about the act and the perpetrator. It must indicate the charge, the act considered a crime and the exact time of the act. Such information must be precise so the defendant knows the charge.

"We can say that the indictment has failed to realize this in the case of our clients. It is impossible to reach a verdict on the basis of this document.

"Gezi is the use of constitutional and democratic rights to voice demands. Gezi is about the right to assembly and freedom of expression. The people have a right to objection and a right to resistance.

"Even the fact that this indictment was accepted by your court serves the obstruction of these rights.

"This indictment is an example of the concept of antagonism as discussed in logic and philosophy.

"The indictment first states several theories about non-violent action, but then it says 'the defendants should be punished for an act of violence'.

"The Open Society Foundation is a legal foundation. There is a claim that it is one of the organizations that financed Gezi. Yet this organization has legal records audited by the Directorate General of Foundations. These audits revealed no negative evaluation.

"There is no legal basis to claim a link between the Open Society Foundation and the Gezi events, and then to issue an arrest warrant against my client. You may even later return a verdict of acquittal. I demand the arrest warrant be lifted."

Aytunç Tuncel Yazgan: You rejected our request for letters rogatory prodecures

Aynur Tuncel Yazgan, the attorney of İnanç Ekmekçi, spoke next.

"My client lives in Germany. At the last hearing, we asked to begin letters rogatory procedures but you rejected our request.

"We repeat our request, because, as you know, the right to freedom and security is a very important, fundamental right. I have also submitted my written request for the collection of further evidence. I demand that this request, too, is considered.

Akın Atalay: Can Dünar has no security of life

Akın Atalay, defense attorney of Can Dündar, spoke next:

"My client Can Dündar has been living abroad for 3 years. He faced oppression for a news report he published. He still faces many cases of prosecution.

"Every month, periodically, the ruling party and its extensions make public statements claiming he is a spy. It is clear today that he has no security of life. He faced an armed assault following the final hearing of the first case filed against him.

"It is under such conditions that my client is asked to return. The Code of Criminal Procedure allows for his statement to be taken by letters rogatory. We present our relevant request for your assessment."

Hürrem Sönmez: My client faces charges for shooting a documentary

Hürrem Sönmez, defense attorney of Çiğdem Mater, spoke next.

"There is no concrete evidence regarding the actions of my client and the harm faced by the complainants. My client faces charges for shooting a documentary and providing medicine for people affected by tear gas.

"Under normal circumstances, that would be the end of my defense. However, considering the charges, I need to highlight the contradictions in the indictment.

"The evidence has been collected in an unlawful manner. There is no element of crime in these documents. To say that it was only 16 people that organized it is to smear the millions of people who were on the streets during Gezi.

"We can't show you the documentary that is mentioned in the indictment because it was never shot. My client here faces charges of aggravated life imprisonment for a movie that she never shot.

"Besides, it is contradictory that the indictment mentions the disproportionate use of force during the Gezi events; while my client faces these charges for providing medication to people hurt by tear gas."

İlhan Koyuncu: Sorry but this is a judicial monstrosity

İlhan Koyuncu, the attorney of Osman Kavala, spoke next.

"I apologize for saying it, and it is the first time ever that I use this term, but I must describe the circumstances we are in as a judicial monstrosity.

"My client was arrested by a Criminal Court of Peace on 1 November 2017, and first entered your presence on 25 June 2019. He has seen no other judge, and there is no other arrest verdict. There has been only one arrest verdict.

"On several instances, decisions have been made for the continuation of his detention. We thank you for your dissenting, minority opinion to the decision at the first hearing on 28 May, but we don't agree with house arrest either.

"Judicial control should be sufficient. Kavala is under arrest for another file. He has only seen a judge once. I am forced therefore to use the term judicial monstrosity.

"We don't know, we are not sure whether Kavala would be able to leave prison if a decision to release him is passed here today. If you lift the decision of the Criminal Court of Peace then he should be released, but then what about the other file?

"We believe that your panel can sort this out and that if you lift the decision of the Criminal Court of Peace, Kavala can be released."

(EMK/VK)

Source: Defending Gezi