Justified Ruling in Gezi Trial: Evidence is Against the Law

* Illustrations: Murat Başol

Click to read the article in Turkish

The court announced its justified ruling in Gezi trial today (February 24). Concluding that the orders for wiretapping and tracking with technical devices were unlawfully issued, the court has ruled that a criminal complaint shall be filed against the acquitted defendants for "organizing unlawful meetings and demonstrations and resisting security forces."

In the sixth hearing of Gezi trial on February 18, 2020, the İstanbul 30th Heavy Penal Court has ruled that defendants Osman Kavala, Mücella Yapıcı, Can Atalay, Yiğit Aksakoğlu, Tayfun Kahraman, Çiğdem Mater Utku, Mine Özerden, Yiğit Ekmekçi, Ali Hakan Altınay shall be acquitted and the files of seven defendants currently abroad shall be separated from others.

The court has also ruled for the release of businessperson and rights defender Osman Kavala, the only arrested defendant of Gezi trial.

CLICK - Osman Kavala Arrested Again

'Phones unlawfully tapped, it is forbidden evidence'

In its justified ruling dated February 24, the court has listed the reasons for its verdict and indicated that the majority of evaluations and findings cited in the indictment were based on wiretapped phone conversations.

Referring to the legal requirements for wiretapping, the justified ruling has referred to the wiretapped phone calls in the file as "forbidden evidence":

"There are 53 wiretapping orders in our file. It has been concluded that the first wiretapping order was given with regards to the offense of 'establishing and leading a criminal organization", not to 'crimes against the government'; the article 312 of the Turkish Penal Code (TCK) on crimes against the government was added when the requests and orders for extending the wiretapping were made; however, the article 312 of the TCK was not among the offenses subject to legal wiretapping as per the article 135/8 of the Law on Criminal Procedure (CMK); no order for wiretapping was issued after that date; that being the case, the wiretapped records are evidence against the law; and when the legal precedents of the Court of Cassation are taken into consideration, the wiretapped phone records are forbidden evidence.

'Tracking with technical devices against the law'

"Within the scope of our file, it has been concluded that the orders for Tracking with Technical Devices issued in the phase of investigation in the same unlawful manner as per the Article 140 of the CMK no. 5271 is also against the law on the same grounds."

'Previous verdicts of acquittal'

The justified ruling has also referred to the verdicts of acquittal previously given for five defendants of Gezi trial, including Mücella Yapıcı.

Reminding that a criminal case was opened at the İstanbul 33rd Penal Court of First Instance on charge of "establishing an organization with the aim of committing crimes and opposing to the Law no. 2911 on Meetings and Demonstrations", the justified ruling has indicated that the actions of the defendants were considered within "the Constitutional right of assembly and organization and freedom of expression" and no evidence that proved that Taksim Solidarity was a criminal organization was found.

Within this context, the justified ruling has reminded that all five defendants were separately acquitted without appeals on June 1, 2015.

'Lawsuit into Dolmabahçe incidents'

In the indictment of Gezi trial, it was also claimed that a group gathered in front of the Prime Ministry Office in Dolmabahçe and attacked the security forces assigned with protecting the Office by using several methods such as throwing stones, attacking them with sticks, molotov cocktails, stun grenades, fireworks, slings and marbles. According to the indictment, these actions also fell within the scope of the article 312 of the TCK.

The justified ruling has reminded that criminal cases were opened against other defendants who were put on trial at the İstanbul 13th Heavy Penal Court and allegedly committed the act in question and they were charged with establishing and leading a terrorist organization, attempting to overthrow the government of the Republic of Turkey or to prevent it from fulfilling its duties, establishing or leading an armed terrorist organization.

Against the above background, the justified ruling has indicated that while some of the defendants have been separately acquitted on the above charges, the process of appeal still continues for some of them.

'Witness Papuç made no concrete statement'

The ruling has also referred to the statements of Murat Papuç, who was heard by the court without the audience and defending lawyers.

The court has concluded that "no concrete findings, information or documents could be obtained in the witness statement:

"When he was asked about his information and views as to the actions attributed to the defendants with regards to Gezi incidents, it has been seen that he made no concrete or tangible statements..."

'Financing Gezi an allegation without evidence'

The justified ruling has referred to the alleged financing of Gezi incidents by Osman Kavala briefly as follows:

"Upon the allegations that Osman Kavala was the financier of Gezi incidents, a report on financial crimes was received and when the financial crimes report dated January 18, 2018 is examined, it has been understood that no evidence suggesting that Gezi incidents were financed through Open Society Foundation and Anadolu Kültür Inc. was presented...

"...It could in no way be explained what kind of fund was provided to whom before and after Gezi incidents as alleged by the indictment, the findings were explained in an unfounded manner and it was indicated that the evidence and discretion would be evaluated by the prosecutor's office..."

'There is no such account number'

Within this context, the justified ruling has also indicated that "the indictment has no findings or evaluations as to whether these organizations have links with any crimes or terrorist organizations and, for that reason, the allegation that he funded Gezi incidents has remained abstract..."

Accordingly, it has been concluded, "Though it was alleged in the indictment that Kavala financed the persons who joined the Gezi incidents, he had a bank account opened to provide the materials to be used in the protests, he provided them with tables, sound system and food in aid and it was detected in the wiretapped voice records, it has been understood that in the wiretapped phone records that we have considered illegal evidence, no concrete findings were cited about the above-mentioned acts, no opened bank account has been detected and no information or documents suggesting the use of these objects in violent actions were found."

'Defendants shall be acquitted as...'

Indicating that "it has handed down a judgement against the defendants based on the evidence except for the wiretapped phone conversations out of its legal obligation", the court has ruled for the acquittal of defendants as no lawful, concrete and definite evidence could be obtained as to their actions that could affect the execution of the government by leading, directing or instigating 'marginal groups" and 'illegal leftist organizations' which committed grave actions of violence and force against public order."

The court has also ruled that a criminal complaint shall be filed against the acquitted defendants, namely Mücella Yapıcı, Tayfun Kahraman, Can Atalay, Mine Özerden, Osman Kavala, Ali Hakan Altınay, Yiğit Aksakoğlu, Yiğit Ekmekçi and Çiğdem Mater Utku, on charge of "organizing unlawful meetings and demonstrations and resisting security forces." (DB/HA/SD)