* Illustration: Tarık Tolunay
Click to read the article in Turkish
The fifth hearing of the lawsuit filed into the Gezi Park protests continued at the İstanbul 30th Heavy Penal Court today (January 28).
Indicating that the testimony of former soldier Murat Papuç, who is cited as an "informer" in the file, was not taken in accordance with the due process of law, the defending attorneys requested recusation. While the court board rejected this request, the attorneys left in protest. Applauding in support of the lawyers, the audience was also ordered out of the court hall.
Main opposition Republican Peoples' Party (HDP) MP Sezgin Tanrıkulu objected when the court board was preparing to announce its interim judgement. The board ordered the MP out of the court hall.
Announcing its interim judgement, the court has ruled that the arrest of Osman Kavala, the only arrested defendant of the case, shall continue.
What happened in the previous hearing?
In its ruling dated December 10, 2019, the European Court of Human Rights (ECtHR) has ruled that Osman Kavala shall be released immediately. However, in the previous hearing of Gezi trial on December 24, the local court rejected the requests for his release on the ground that "the ECtHR verdict on Kavala had not yet been delivered to them."
However, it was understood that the Ministry of Justice sent the Turkish translation of the verdict to the court before the hearing.
On the other side, the court has also accepted the request of police officer Mevlüt Saldoğan and the Ministry of Treasury to intervene in the case on the allegation that "they came to harm" as a result of the protests. Saldoğan was one of the people who caused the death of Ali İsmail Korkmaz during Gezi Park protests in Eskişehir on July 10, 2013.
Businessperson and rights defender Osman Kavala, the only arrested defendant of the case, has been behind bars for 819 days. 16 people, including Anadolu Kültür Executive Board Chair Osman Kavala, the only arrested defendant of the case, are facing aggravated life sentence on charge of "attempting to overthrow the government" for allegedly having organized the Gezi Park protests in 2013.
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Bayraktar: Papuç's testimony is unlawful
Scheduled to start at 10 a.m., the hearing started at 10.45 a.m. after the court board, defendants, lawyers and the audience were seated.
In the fourth hearing of the case, the court accepted the request of former soldier Murat Papuç, who is cited as an "informer" in the file and demanded that his testimony be taken in a hearing with no attendants as he had no security of life. His testimony was taken in a hearing without attorneys.
Addressing the court board and the audience today, Osman Kavala's attorney Köksal Bayraktar spoke for the recusation of the court board. "By hearing witness Murat Papuç, you violated the Law of Criminal Procedure in no less than 7 different aspects", he said. Detailing his demand, Bayraktar stated that Papuç's testimony was unlawful.
Attorney Turgut Kazan also demanded the recusation of the board, commenting on witness Papuç: "The witness sent LinkedIn invitations to defending lawyers. We informed you and the legal experts of this."
Kazan: He sent LinkedIn invitations to attorneys
Attorney Turgut Kazan also indicated that witness Murat Papuç sent LinkedIn invitations to defending lawyers:
"Aren't you supposed to look into the situation of a witness who sent invitations to the defending attorneys and whose testimony was taken under such circumstances? We want to bring it to your attention that this invitation was not only sent to Aslı Kazan, one of the defending attorneys, but to other defending attorneys as well. That Murat Papuç that you heard because he did not have safety of life...
"In this case, where you thought that it would be life-threatening if he was present at court, Murat Papuç apparently knows Aslı Kazan. This situation openly shows how false it was to take the testimony in the absence of others for fear of life safety. Papuç misled the court, the court was misled."
İlkiz: We have nothing to hide
Fikret İlkiz, the attorney of defendants Mücella Yapıcı, Tayfun Kahraman and Can Atalay, also demanded the recusation of the board.
"Regarding Gezi we never said, 'I didn't do this, or see that'. Press statements? Yes, my clients held them. We have nothing to hide from anyone", İlkiz said and added, "I reject your board."
Demir: You violated the law of criminal procedure
Hasan Fehmi Demir, the attorney of defendant Yiğit Ali Ekmekçi, also stated that the court board had violated the Law of Criminal Procedure in the hearing of the witness as well as reading of documents.
Referring to the police officer whose request for involving in the case was previously accepted, attorney Demir further indicated, "Mevlüt Saldoğan is Ali İsmail Korkmaz's murderer. He has received a 13-year-prison sentence. You included him as a complainant too."
Emel Ataktürk Sevimli, another attorney for Yiğit Ali Ekmekçi, said, "Your board's witness hearing procedures are in breach of the Law on Criminal Procedure and the European Convention on Human Rights. We have not been allowed to question the witness."
Family of Ali İsmail Korkmaz objected
* Illustration: Murat Başol
Speaking at the hearing, Ayhan Erdoğan, the attorney of Korkmaz family responded to Presiding Judge Galip Mehmet Perk as follows:
"You said Saldoğan, the murderer, was injured by 'sticks or stones'. Untrue. Saldoğan had a medical report for a toe injury. His kick that killed Ali İsmail was so forceful that he injured his toe -the murder weapon."
Attorneys requested recusation
Following the remarks of defending attorney Hasan Fehmi Demir, Osman Kavala's defending attorney İlkan Koyuncu, Can Atalay and Tayfun Kahraman's defending attorneys Ayhan Erdoğan and Özgür Karaduman, Yiğit Ali Ekmekçi's defending attorney Emel Aktürk Sevimli and Çiğdem Mater's defending attorney Hürrem Sönmez indicated that the court did not abide by the due process of law.
Indicating that they did not recognize the court, the defending attorneys raised a request for recusation.
Requests for recusation rejected
Announcing its desicion after the remarks of Can Atalay, the court board rejected the requests for recusation on the ground that their requests were not raised based on the Law of Criminal Procedure (CMK).
After the court announced its decision, defending attorneys indicated that they did not find the decision acceptable and left the courtroom in protest. As the audience also applauded in protest, the Presiding Judge ordered the complete evacuation of the courtroom.
Prosecutor demanded continuation of arrest
Republican People's Party (CHP) MP Sezgin Tanrıkulu demanded to speak, but the judge refused. "You cannot hear a defendant without his lawyers, you cannot continue the hearing in this manner", he insisted.
The judges ordered Tanrıkulu out of the court hall. CHP MP Sera Kadıgil and Peoples' Democratic Party (HDP) Diyarbakır MP Garo Paylan also objected. The court board abandoned the hall in response.
After the judges returned to the court hall, Osman Kavala indicated that he would not provide a statement in the absence of his attorneys. He also added that the ECtHR ruling was valid and that he was concerned that the court's refusal to abide by it would influence the outcome.
The other defendants also refused to provide their statements in the absence of their attorneys.
Requesting time for the preparation of his opinion as to the accusations, the prosecutor also demanded that the arrest of Kavala continue.
A recess was called for the interim judgement.
Kavala's arrest to continue
While the court board was preparing to pronounce its interim judgement, CHP MP Sezgin Tanrıkulu was once again refused entry into the court room. "A soldier cannot stop me from entering the court room. This remains the court of a state of law", Tanrıkulu protested.
Announcing its ruling after the recess, the court has ruled that the arrest of Osman Kavala shall continue. The court has ruled for the continuation of his arrest on the grounds that the ECtHR verdict on Osman Kavala has not become definite and the Constitutional Court previously concluded that there was no violation of rights in his arrest.
While the file of the case will be sent to the Prosecutor's Office for the preparation of the opinion as to the accusations, the court has rejected the requests for both the extension of the investigation and the recourse of Mevlüt Saldoğan from the case. The request for lifting judicial control measures imposed on the defendants have also been rejected.
The next hearing will be held on February 18, 2020.
Today's hearing has been followed by the following people:
Tarık Beyhan, Batuhan Durmuş, Milena Buyum from Amnesty International; İstanbul Consul of Italy Gabriele Ingrosso; Yonca Verdioğlu from Heinrich Böll Stiftung; Verena Sommerfeld from Goethe Institute; Chief Clerk of Embassy of Germany Paul Amann; Philip Chambers from International Bar Association; Katie Lambert from the Ankara Consulate General of the UK; Emma Sinclair Webb from Human Rights Watch, Sema Kılıçer from Delegation of European Union to Turkey.
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About Gezi Trial
It has been 78 months since an investigation was launched into Gezi Park protests, 26 months since Osman Kavala was arrested and 19 months since the bill of indictment was shared with the public and the trial started.
* Businessperson Osman Kavala, who was on his way back from Antep, was taken into custody at İstanbul Atatürk Airport on October 18, 2017.
* On November 1, 2017, it was announced that Kavala was arrested on charges of "attempting to change the Constitutional order and to overthrow the government." In the official document referring him to court with a request of arrest, it was alleged that Kavala was the head and financier of Gezi incidents.
* While Kavala and his attorneys were prevented from seeing the file of the investigation with restrictions, the content of the file was served to the media.
* On November 16, 2018, a wave of detentions targeted several people, including some executives of Anadolu Kültür Inc. cofounded by Osman Kavala.
* The previously acquitted members of Taksim Solidarity platform were also summoned to depose and it was reported in the news that there was indeed a more extensive list of investigation.
* Imprisoned for 19 months without standing before the judge and without a bill of indictment prepared by the prosecutor's office, even Kavala and his attorneys also had to follow the course of the investigation from the press.
* Almost 1.5 months passed without any judicial processes.
* The bill of indictment prepared the prosecutor's office was announced on February 19, 2019 and accepted by the court on March 4.
* Issued against Gezi incidents from six years ago in 16 months, the indictment demanded life sentence for 16 people.
* The indictment and its annexes were mostly based on wiretapping evidence. It was announced that, mostly consisting of wiretapping evidence, the 657-page indictment also had over 8,000-page additional documents.
* The first hearing of the case was held on June 24, 2019. The defendants presented their statements of defense. Yiğit Aksakoğlu, one of the two arrested defendants of the time, was released.
* Announcing its ruling on the individual application of Osman Kavala on May 22, 2019, the Constitutional Court concluded that there was "no violation" despite the dissenting opinion of its own rapporteur.
* Requests of release for Osman Kavala were rejected in all three hearings on June 24, July 18 and October 9.
* Since the Gezi Trial started, the defendants and audience were faced with three different court boards. The presiding judge who requested the release of Osman Kavala was immediately dismissed from his duty.
* The European Court of Human Rights (ECtHR) announced its ruling on the individual application of Osman Kavala on December 10, 2019.
*Accordingly, the ECtHR has unanimously ruled that there had been a violation of Article 5/1 (right to liberty and security) of the European Convention on Human Rights, and a violation of Article 5/4 (right to a speedy decision on the lawfulness of detention) of the Convention.
The Court has said, "By six votes to one, that there had been a violation of Article 18 (limitation on use of restrictions on rights) taken together with Article 5 § 1, and that the respondent State was to take every measure to put an end to the applicant's detention and to secure his immediate release."
CLICK - ECtHR: His Pre-Trial Detention Not Based on Reasonable Suspicion
* Now, the court is expected to abide by this verdict.
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(TP/HA/SD)
* Source of witness statements: #DefendingGezi
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