Attorneys: Indictment against Osman Kavala nothing more than 'hypothetical fiction'

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Attorneys of businessperson and civil society figure Osman Kavala have released a written statement after the İstanbul 36th Heavy Penal Court accepted an indictment demanding an aggravated life sentence for him.

CLICK - Prosecutor demands aggravated life sentence for Osman Kavala, Henri Barkey

"First of all, we state that the indictment in question does not have the legal elements in Article 170 of the Law of Criminal Procedures, it is nothing more than 'hypothetical fictions' and does not have any legal value for us. Moreover, the most important deficiency of the indictment is the absence of 'adequate suspicion that the crime has been committed', which is sought by the law," said the statement by attorneys Tolga Aytöre, İlkan Koyuncu and Köksal Bayraktar.

The indictment did not include any recordings of communication or physical surveillance, which the allegations are based on, and turned to the indictment of the Gezi Park trial, where Kavala faced attempted overthrow but acquitted, said the statement.

By "concealing" the verdict of acquittal and provisions and evidence in favor of the defendants, the prosecutor failed to perform his duty, according to the attorneys.

While the prosecutor's office demands Kavala be sentenced according to Articles 309 and 328 of the Turkish Penal Code, it did not reveal the elements of the crime, the statement further said.

As well as accepting the indictment, the heavy penal court ruled for the continuation of Kavala's arrest as per Article 309 of the Turkish Penal Code, the attorneys noted, saying that there was not an arrest order against their client based on that article.

What happened?

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 he was the head and financier of Gezi.

The sixth and final hearing of the lawsuit filed into Gezi resistance was held at the İstanbul 30th Heavy Penal Court in Silivri on February 18, 2020.

Announcing its ruling after the statements of defendants and their attorneys, the court board has ruled that Osman Kavala, Mücella Yapıcı, Can Atalay, Tayfun Kahraman, Ali Hakan Altınay, Yiğit Aksakoğlu, Yiğit Ali Ekmekçi, Çiğdem Mater Utku and Mine Özerden shall be acquitted as "there was no concrete and material evidence as to the committal of the offenses charged." The court has also ruled that businessperson and rights defender Osman Kavala, the only arrested defendant of the case, shall be released.
Osman Kavala was the only arrested defendant in the 16-defendant Gezi Trial, which started on June 24, 2019. Having been acquitted in this trial, Kavala was arrested again, this time on the charge of "political or military espionage." Kavala is still held in Silivri Prison in İstanbul.

Announcing its ruling on Kavala on December 10, 2019, the ECtHR concluded that his rights were violated by his imprisonment.
The ECtHR concluded that the European Convention on Human Rights was violated on the grounds that Kavala was arrested without any reasonable suspicion and with political motives and that the Constitutional Court did not examine his application within a reasonable period of time.

This ruling became final on May 12, 2020. While this ruling has not yet been put into effect, the Committee of Ministers of the Council of Europe made a call to Turkey about the final ruling of the ECtHR and urged Turkey to implement the ECtHR's ruling of right violation and to release him.

What do the laws say?

Article 309 - Violation of the Constitution

(1) Any person who attempts to abolish, replace or prevent the implementation of, through force and violence, the constitutional order of the republic of Turkey shall be sentenced to a penalty of aggravated life imprisonment.

(2) Where any other offences are committed during the commission of this offence, an additional penalty for such offences shall be imposed according to the relevant provisions.

(3) Legal entities shall be subject to security measures specific to them for the commission of offences defined in this article.

Article 328 - Political or Military Espionage

(1)A person who secures information that, due to its nature, must be kept confidential for reasons relating to the security or domestic or foreign political interests of the State, for the purpose of political or military espionage, shall be sentenced to a penalty of imprisonment for a term of fifteen to twenty years.

(2) In the offense is committed:

a) to serve the interest of a country at war with Turkey, or

b) During wartime or such that it jeopardises the State's preparations for war or effectiveness in war or its military movements, the offender shall be sentenced to a penalty of aggravated life imprisonment.

(HA/VK)