'Ideology supplants need for evidence' in new Kavala trial

Civil society leader Kavala to remain as political hostage in prison until February 2021.

Foto: Bianet
PEN Norway’s Court Reporter Writes:

Press attention was high today at the Cağlayan Palace of Justice, Istanbul where many representatives of civil society, diplomatic missions and political parties gathered for the first hearing in a new case against imprisoned human rights defender, Osman Kavala. There were hints of a judicial reform from the government during the past month which in turn raised the expectations for Kavala’s release and possible acquittal on all charges.

The new indictment charges Kavala with “obtaining state information that needs to remain confidential for political and military espionage purposes” and «attempting to overthrow Constitutional order» with reference to the 2016 coup-attempt.

The hearing started precisely on 13:30 as planned. Due to pandemic restrictions, only a few people were allowed into the courtroom: relatives, lawyers and very few press members. Kavala, being still detained in Silivri prison, two hours from Istanbul, attended the case over SEGBIS, the judicial conferencing system.

Those members of the press, diplomats, and legal observers who were not permitted to enter the court room were let through the security gate but had to watch the proceeding through the open doors from the inner hallway, inevitably forming a crowd around the door. Those who did not have press, diplomatic or legal credentials were not allowed in through the security gate.

The hearing started with Kavala’s statement. He criticized the fact that evidence from the previous ‘Gezi’ trial had been recycled in this new case. He pointed out that the indictment failed to prove his connections to Henri Barkey and had no factual basis or concrete evidence.

“The prosecution has intentionally confounded the present activities of civil society organizations that serve to contribute to democracy with the political and ideological activities undertaken during the Cold War Era.” Kavala said. He ended his statement with these words: “I hope this indictment, which includes the most extreme examples of unfounded, non-substantiated, and illogical charges leading to our citizens’ deprivation of their freedom, will be the last one of its kind.”

 The full transcript of his statement has been published on the Free Osman Kavala Campaign website.

Witnesses and Lawyers

Kavala’s statement was followed by statements of 6 witnesses and the defense statements of Kavala’s lawyers: Murat Deha Boduroğlu, Köksal Bayraktar, Deniz Tolga Aytöre. The indictment attempted to connect Kavala and Barkey and accused Kavala of being in the same hotel with Barkey on 15 July 2016 (on the day of the coup attempt), where a meeting took place. All witnesses denied the presence of Kavala. One of the witnesses stated that Barkey knew of the coup-attempt in advance.

Kavala’s lawyers pointed out the lack of evidence in the indictment and that no witness had provided extra evidence connecting Kavala to Barkey. Kavala has been unlawfully imprisoned for 38 months. After the judge stated that Kavala “was not imprisoned for this case”, Lawyer Köksal Bayraktar reminded the decision of the European Court of Human Rights statement that identifies his imprisonment as a continuation of the original detention. The European Court of Human Rights ruled that Turkey should immediately end Kavala’s detention on December 10, 2019. This ruling has been ignored now by multiple judicial panels in their hearings.

Swift decision for continuing detention

After the statements and a 15-minute-long break, the prosecutor requested Leyla Alaton to be ready as witness for the next hearing along with other previously decided witnesses and continuation of Kavala’s imprisonment. Then, the court briefly adjourned again before ruling for the continued imprisonment of Kavala and declared that the next hearing will be held on 5 February 2021, 13:30.

While the Turkish Courts have taught us to keep hopes low on many occasions, this ruling comes as a disappointment for all of those demanding Kavala’s release. The ruling directly ignores resolutions from the European Court of Human Rights, comes despite the new political discourse concerning judicial reform, against the president’s own message on 10 December 2020, Human Rights Day stating that: We carried our country to a much higher level in the field of human rights compared to 18 years ago…”

As Sezgin Tanrıkulu (MP, human rights activist and lawyer) stated right after today’s hearing: “Osman Kavala is still detained unlawfully, despite the European Court of Human Rights resolution, and 3 resolutions from the Council of Ministers” He continues: “This case is a symbolic case concerning the judiciary reform. Despite the binding resolutions by the European Court of Human Rights, Kavala has not been released yet. So “judicial reform” means nothing unless the mentality changes first.”

 «Kavala’s situation has even gone beyond legal harassment, It has become legal torture. There isn’t enough evidence to imprison Kavala even for 1 day, let alone convicting him.» says Sinan Gökçen. (Civil Rights Defenders-Turkey, Solidarity Network for Human Rights Defenders)

The next hearing will take place on February 5th, 2021.

PEN Norway’s reaction to today’s decision

Despite mounting evidence that impartiality and independence of the judiciary in Turkey’s High Criminal Courts is a thing of the past, we at PEN Norway hoped again today, as we did this time last year, that human rights activist Osman Kavala would be released from his illegal detention in Silivri prison and reunited with his freedom.

Although we monitor, report and collate data on the deteriorating state of the rule of law in Turkey we still raise our hopes for justice when an innocent man becomes the subject of such a flimsy legal case.  Our hopes and those of Osman Bey’s family, legal team, and supporters worldwide that justice would finally prevail were yet again dashed by the judicial panel of Istanbul’s 36th High Criminal Court when they ruled to keep Kavala in prison today and to hold the next hearing in February 2021.

The latest outright attack on the judicial system in Turkey can be seen to have begun by the Constitutional changes of 2017 that gave power to the President and Ministry of Justice to appoint every single member of the Council of Judges and Prosecutors, thus giving the executive indirect power in the appointment of every judge and prosecutor in the country.

PEN Norway has attended every hearing in the bogus cases against Kavala since 2018. For those observers who were shocked at the baseless nature of the Gezi trial and its accompanying tome of irrelevance that passed for an indictment, this new trial can only further confirm that the executive in Turkey has no intention of permitting Kavala or his new co-defendant Barkey to have a fair trial.

In a fair trial, the presentation of the utterly evidence-free indictment against Kavala and Barkey would cause a judicial panel to rule for dismissal of the case.

In our Indictment Project – Turkey 2020 we have so far reported on the standards of 8 indictments in recent cases in Turkey.  Not one of those indictments meets Turkish or international standards.  The crisis in the judiciary in Turkey is so great, that only a divorce of the executive from the judiciary and assurance to all judges that they will not be prosecuted for making judgements that may displease the President will suffice to restore faith in this crippled judicial system.  The fact that the highest levels of the executive wish to influence trials is not supposition, it can be heard in the speeches of the President on a regular basis.  Last week Erdoğan stated that he ‘did not expect’ the justice system in Turkey to sanction or support the release of opposition leader Demirtaş. It is time that the Council of Europe chastised Turkey strongly for its willful departure from the tenets of the European Convention on Human Rights.

We report in full on the new Kavala indictment on Tuesday 22, December on our website.

The report by Kevin Dent QC confirms our fears over the lack of evidence against defendants:

‘ It is noticeable that, notwithstanding the seriousness of the allegations, no serious attempt has been made in the indictment to link Osman Kavala to any activity or role in either espionage or the attempted coup. Consequently, given the lack of coherent evidence, it is hard to resist the conclusion that the indictment is a piece of political theatre rather than a legal instrument and one designed to perpetuate the detention of Osman Kavala.’
Kevin Dent, QC. Turkey v Kavala & Barkey Indictment Report.

We at PEN Norway call for an urgent investigation by Turkey’s Ministry of Justice into these pretences of trials that make little effort to convince anyone the intention of judicial panels to uphold the law. We call for the immediate release of Kavala and the dropping of all bogus charges against him.  We call for Turkey to stop wilfully violating Article 6 (Right to a Fair Trial) of the European Convention on Human Rights and to free Osman Kavala.