Court merges Osman Kavala’s ‘espionage’ case with Gezi trial

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Arrested again despite a ruling of acquittal and release in the Gezi trial and now standing trial for "changing the Constitutional order" and "obtaining confidential information of the state for purposes of political or military espionage", businessperson and rights defender Osman Kavala had his second hearing at the İstanbul 36th Heavy Penal Court today (February 5).

Behind bars for 1,193 days, Kavala attended the hearing from Silivri Prison at the outskirts of İstanbul via Audio and Visual Information System (SEGBİS). His attorneys Köksal Bayraktar, Tolga Aytöre and Deha Boduroğlu were present in the courtroom. His spouse Ayşe Buğra was also there.

MPs Ahmet Şık, Ali Şeker, Züleyha Gülüm and Sezgin Tanrıkulu as well as representatives from consulates also watched the hearing. As the representatives from consulates were admitted into the courtroom before journalists, press members could not find a place to sit during the hearing. They had to cover the hearing on foot for almost one and a half hours.

Leyla Alaton refuted Bozkurt's statement

The hearing started with the witness statements. Leyla Alaton, the daughter of Alarko Holding's founder İshak Alaton, who lost his life on September 11, 2016, testified against the allegations of coup made by Cem Fadıl Bozkurt.

She said that Bozkurt was a general manager and shareholder of their company, but they cut all ties with him in March 2015 as he cheated them. She also noted the trial over his fraud was still continuing, adding that he was casting aspersions on her and her father for this reason.

Noting that she knew both Osman Kavala and Henri Barkey, two defendants of the trial, Leyla Alaton said that while her father sometimes met them, she never saw Kavala and Barkey together.

After Alaton made her statement, the personnel of the Büyükada Splendid Hotel, where Henri Barkey, charged with plotting the coup attempt, was staying on the day of the coup on July 15, 2016, testified as witnesses.

Testifying at the hearing, hotel personnel Leman Özbay, Fili Çapangil, Gamze Coşkun and Osman Ereli confirmed that Henri Barkey had stayed at the hotel and Osman Kavala had never come there.

Kavala: They are aware that accusations are baseless

Taking the floor after the witnesses, Osman Kavala said that he had been arrested for 39 months, speaking about his unlawful arrest and the burden of this arrest on him. Kavala briefly said the following:

"I have been arrested for 39 months on fabricated, unreal charges against me. I was charged with organizing Gezi incidents and the July 15 coup before. I am facing charges as conversations that are based on unlawful wiretapping and do not constitute a crime are accepted as evidence.

"The prosecution is aware that these accusations are baseless, as also shown by the fact that I was released twice on July 15-related charges.

"It is beyond comprehension that an impartial observer who evaluates the incidents and facts objectively cannot understand that the charge of espionage, which is used in a manner against its definition in the law, is used to invalidate the judgement of the European Court of Human Rights."

'Unreal possibilities that have no touch with reality'

Kavala noted that "the prosecution, in the absence of concrete evidence that could underpin the accusations, was trying to create a certain impression and, thereby, direct the judiciary by intertwining some conspiracy theories and accusations as if they were the evidence of one another."

Further in his statement, Osman Kavala also said that "the risk of spoliation of evidence, put forward to reject his request for release, was not a reasonable suspicion," adding that "it was an unreal possibility that had totally lost its touch with reality to think that the evidence which could not be found because they did not exist could be exploited."

He underlined that everytime his request for release was rejected, the violation of his rights got more aggravated.

Aytöre: Please show me a single piece of evidence

After Kavala made his statement, his attorneys took the floor. Attorney Tolga Aytöre said that the witness statements of Leyla Alaton made the witness status of Cem Fadıl Öztürk against Kavala null and void.

He also noted that the attempts to join the case with the Gezi trial were "efforts to make the arrest of Kavala permanent."

"Please, can you show me a single piece of evidence that proves that Osman Kavala met Henri Barkey," asked Aytöre, adding that "the only de facto and de jure connection between the indictments was the fact that both of them were issued by prosecutor Hasan Yılmaz."

Koyuncu: Court has already given its ruling

Attorney İlkan Koyuncu talked about the witness statements, the document added to the file and the release of Kavala.

Noting that either Leyla Alaton or Cem Fadıl Bozkurt was lying, Koyuncu requested that a criminal complaint be filed against Cem Fadıl Bozkurt on charges of misstatement under oath and fraud.

He also said that the statements of Alaton refuted his statements.

Attorney Aytöre stressed that "it was meaningless to make defense." Addressing the court board, he said, "After the court of appeals gave its ruling, your court addressed an official letter to the İstanbul 30th Heavy Penal Court so that the two files could be combined. You have pronounced the ruling. You have withdrawn from the file."

Lastly, he said, "I do not have a request for release."

Bayraktar: Your request for assent is unlawful

Taking the floor afterwards, attorney Köksal Bayraktar criticized the court as it requested assent from the 30th Heavy Penal Court for joining the case with that of Gezi. Noting that the opinions of Kavala's attorneys were not asked, he underlined that it was wrong in terms of the criminal law.

Reading out the Article 16/2 of the Code of Criminal Procedure (CMK), Bayraktar said, "Your request for assent, which we learned from the National Judiciary Informatics System (UYAP), is against the law."

Articles 16/1 and 16/2 of the CMK say:

"A copy of the documents regarding the crime or crimes, which are the subject of reconciliation that is included in the investigation file, and that are required for reconciliation and approved by the public prosecutor shall be submitted to the reconciler.

"The public prosecutor shall notify the reconciler that he/she is obliged to act in compliance with the principle of confidentiality of investigation."

Court doesn't consider attorneys' statements

After the statements were completed, the prosecutor of the hearing demanded the continuation of Kavala's arrest.

After the recess, the court board convened again to pronounce the judgement. However, after Köksal Bayraktar said that the prosecutor did not act in accordance with the due procedure of law, which paved the way for retrial, the board recessed the hearing again.

Pronouncing its ruling after the recess, the court board, despite the witness statements and strong defense of the defendants, has ruled that Osman Kavala shall remain arrested and the file of "espionage" case shall be combined with that of the Gezi trial. (HA/SD)