Expression Interrupted

Journalists and academics bear the brunt of the massive crackdown on freedom of expression in Turkey. Scores of them are currently subject to criminal investigations or behind bars. This website is dedicated to tracking the legal process against them.

ANALYSIS Gezi Park trial: A portrait of unlawfulness

ANALYSIS Gezi Park trial: A portrait of unlawfulness

Whatever is claimed by the prosecution, whatever judgment comes out at the end of this trial, the innocence of Gezi Park protests in the public conscience and its dignified place in social memory will remain

HÜRREM SÖNMEZ*

The “Gezi Park Trial,” where 16 defendants were tried by the Istanbul 30th Assize Court, started with the court’s acceptance of the indictment dated 19 February 2019, which was filed by Prosecutor Yakup Ali Kahveci on 4 March 2019.

Osman Kavala, a businessperson known for his civil society work in the human rights field, was the number one suspect in the investigation file. He was taken into custody on 18 October 2017 at the airport upon his return from a trip. On 1 November 2017, he was jailed pending trial on the charges of “attempting to overthrow the constitutional order” and “attempting to overthrow the government of the Turkish Republic or to prevent it from fulfilling its duties.” The arrest warrant for Kavala alleged that he “masterminded and organized the Gezi protests in which all terrorist organizations (FETÖ/PYD, PKK/KCK, DHKP-C, MLKP) actively participated and supported” and that “he participated in the coup attempt of 15 July 2016.” 

During the year following Kavala’s detention on remand, all objections against his pre-trial detention and requests for his release were rejected. However, during this time, no one, including Kavala himself or his lawyers, knew what the grounds of the charges brought against him were. About a year later, on 16 November 2018, a new operation was carried out with a 20-person detention list. Thirteen persons were taken into custody, including Professors Turgut Tarhanlı and Betül Tanbay, film producer Çiğdem Mater, and Meltem Aslan, the executive director of Anadolu Kültür Inc., founded by Kavala. These persons were questioned about the Gezi protests of 2013 during their police interrogation. In a statement by the Istanbul Police, it was claimed that they were “working in a hierarchical order with Kavala to deepen and spread the Gezi protests."

Fifteen of the 16 civil society figures who were taken into custody as part of the operation were released after their statements were taken. Yiğit Aksakoğlu, on the other hand, was detained on 17 November 2018 and remained in pre-trial detention for seven months, until the first hearing of the Gezi Park trial, on 24 June 2019, when the court ordered his release pending trial.

Fifteen months after the beginning of Kavala’s pre-trial detention and three months after the other suspects were taken into custody, Turkish media reported that the prosecution had issued the indictment. 

Based on the indictment dated 19 February 2019, a criminal case was launched against Osman Kavala, Ali Hakan Altınay, Ayşe Mücella Yapıcı, Ayşe Pınar Alabora, Can Dündar, Çiğdem Mater Utku, Gökçe Yılmaz, Handan Meltem Arıkan, Hanzade Hikmet Germiyanoğlu, İnanç Emekçi, Memet Ali Alabora, Mine Özerden, Şerafettin Can Atalay, Tayfun Kahraman, Yiğit Aksakoğlu and Yiğit Ali Ekmekçi. The defendants were accused of “attempting, by the use of force and violence, to abolish the government of the Republic of Turkey or to prevent it, in part or in full, from fulfilling its duties” under Article 312/1 of the Turkish Penal Code No. 5237 (TCK) seeking aggravated life imprisonment. The prosecutor also filed additional charges against the defendants, such as damage to property, qualified damage to property, possession or exchange of hazardous substances without permission, damaging places of worship and cemeteries, violating the Law on Firearms and Knives and Other Tools, qualified robbery, aggravated injury, and violating the Law on the Protection of Cultural and Natural Properties.

The indictment listed 746 persons as victims, including Recep Tayyip Erdoğan, who was prime minister at the time, and ministers from his Cabinet -- Bülent Arınç, Ali Babacan, Beşir Atalay, Bekir Bozdağ, Emrullah İşler, Binali Yıldırım and Muammer Güler. During the course of the trial, some of these victims submitted petitions stating that they did not have any complaints. It later became apparent that some of the names listed among victims were not even aware of the trial and that they were included in the indictment by the prosecution based on claims filed at the time of the protests for damages with insurance companies or police stations.

Although the indictment was filed by Prosecutor Yakup Ali Kahveci, the investigation was initiated by Prosecutor Muammer Akkaş in June 2013, and the police inquiry report was drafted by the Director of the Department of Anti-Smuggling and Organized Crime, Nazmi Ardıç.

Prosecutor Akkaş, who was dismissed during the “17-25 December corruption probes,” was detained in 2015 as part of an investigation against the “parallel structure.” 

Illegal evidence in the indictment

Informer and witness testimonies, historical traffic search (HTS) reports, court orders and reports on communication records and technical surveillance were listed among evidence in the indictment. 

The evidence at the trial stage will be mentioned below, but it is useful to make a reminder here about the preparation process of the indictment.

The communications of suspects were ordered to be recorded as part of a police inquiry report drafted by Nazmi Ardıç and the investigation carried out by Muammer Akkaş. As a matter of fact, the reports on communication records have an essential place as evidence in the case file. It is also noteworthy that all decisions regarding the recording of communication were issued after July 2013, after the Gezi protests ended. There is no logical explanation as to how some phone calls -- made after the protests ended -- by suspects accused of organizing, spreading and deepening the Gezi protests could prove this claim. In other words, it cannot be explained how the claim that they masterminded a protest, which had already ended, could be based on these communications. Another critical issue is that orders for recording the communications of suspects were rendered by Judge Süleyman Karaçöl and Judge Menekşe Uyar, both of whom were later dismissed from the profession. Both were tried and convicted for their illegal and unlawful recording orders.

The fact that the public servants who were on duty at the time of the investigation and who collected the evidence to have later faced charges that they were part of a criminal organization means that the indictment based on the evidence collected by these persons has lost its legal basis. Therefore, presumably in an effort to eliminate doubt, a paragraph was added in the conclusion of the indictment, saying that the communication records were “reevaluated”: “It was deemed necessary to make an explanation that all evidence, especially those collected after 2016, and all communication records in particular, were reevaluated by our public prosecutors’ office. For this reason, contrary to the allegations, all external influences on the case file, including the effects of the said organization’s militants, have been eliminated.” A procedure that has no place in the Turkish criminal procedure law, one that we have never even heard before, was in question. Although it was claimed that “traces of the organization had been erased by this procedure,” this does not alter the fact that the records of communication, which were taken on the basis of orders rendered by two judges, who had been involved in illegal phone tapping scandals, are illegal evidence. 

None of the acts listed in the indictment that allegedly demonstrate that the defendants committed the crimes they are accused of, included the elements of the crime of “attempting, through the use of force and violence, to abolish the government of the Republic of Turkey or to prevent it, in part or in full, from fulfilling its duties” under Article 312/1 of the TCK. In order for this crime, regulated under the title of “Offences against the Constitutional Order and its Functioning,” to occur, actions involving force must have been undertaken with appropriate means, and these actions must be suitable for achieving the intended result. The provision itself defines the material element of the crime by the statement of “use of force and violence.”

However, six years after the Gezi protests, and despite the fact that some of the defendants had already been acquitted before, in an effort to criminalize the protests, the prosecution developed a conspiracy theory that the protests were imported from abroad, and financed and organized by someone, by associating the protests with foreign persons and organizations, such as George Soros and Otpor/CANVAS. By turning this conspiracy theory into an indictment, a legal basis was established for the trial.

According to the prosecution, by bringing some methods theorized by Gene Sharp in his 1973 book titled “The Politics of Nonviolent Action” and previously used in Georgia or in Arab countries during the Arab Spring, to Turkey, the defendants planned and organized the Gezi Park protests, during which three-and-a-half million people took to the streets!

Following are the alleged acts attributed to suspects in the indictment;

“Organizing meetings in venues belonging to Anadolu Kültür, such as DEPO and Cezayir to deepen and spread the Gezi Park protests,”

“Bringing activism trainers, facilitators, and professional protestors from abroad (Standing Man, the Piano Player, Woman in Red) to ensure the continuity of the Gezi Park protests under the name of Civil Disobedience and Nonviolent Action,”

“Engaging in activities to establish a new media and creating an agenda via their own media for the continuation of the Gezi Park protests and for possible similar protests in the future,”

“Working towards the prohibition of tear gas during the Gezi Park protests, and to prevent its import into Turkey by consulting with institutions and persons in Europe.” 

The prosecutors who prepared this indictment should have known that peaceful gatherings and demonstrations is a constitutional right and media activities are directly related to the right of society to receive news and are part of the freedom of thought and expression. But more interestingly, some of the defendants did not take part in the acts cited by the prosecution as evidence for the occurrence of crimes: for instance, contrary to the allegations, they did not actually attend a meeting they were claimed to have attended, no media was established, no documentary film was shot. Many of the defendants, who, according to the prosecution, allegedly orchestrated the Gezi Park protests, actually saw each other for the first time in the courtroom.

Hearings

The first hearing of the trial was held on 24 June 2019. This two-day hearing, where the defendants were questioned, ended with interim rulings regarding the continuation of the detention of Osman Kavala and Yiğit Aksakoğlu’s release pending trial. In the second hearing on 19 July, the presiding judge demanded house arrest for Kavala. However, the court ruled by a majority to continue his imprisonment. The next hearing saw an interesting development: the panel of judges was changed and a new judge was appointed to replace the presiding judge, who voted to end Kavala’s detention. Before the hearing of 24 December, the European Court of Human Rights ruled on 10 December 2019 that Osman Kavala should immediately be released, that his detention violated his rights, that the evidence in the case file was insufficient for an accusation, and that the acts alleged to constitute a crime were within the scope of rights and freedoms guaranteed by the European Convention on Human Rights. However, Kavala was not released, on the grounds that the European Court of Human Rights’ judgment had not yet been finalized. In addition, considering the “classification of the offense, that is among ‘catalogue crimes,’” and that the measure of detention was proportionate, the trial court justified its decision to keep Kavala in detention. Another interesting development took place in the same hearing with the acceptance of the request of witness Murat Papuç to be heard in the absence of lawyers and defendants on the grounds that he had no life safety. The court implemented a very restrictive and unprecedented practice in terms of the right to defense by hearing this witness in a closed session. While Papuç’s testimony did not prove that the defendants had committed the crimes attributed to them, the defense lawyers requested the panel to be recused because of this irregularity on the grounds that judges have lost their impartiality. However, the court rejected this request. Subsequently, the prosecutor's final opinion on the case was prepared in an accelerated manner and notified to the parties. In the opinion, there was no different issue than the indictment, and the prosecution asked the court to convict the defendants as charged. In the face of the court’s effort to speed up the trial and the repeated rejection of defense lawyers’ requests, the final hearing began under extremely tense conditions. At the end of the final hearing on 18 February 2020, the court ruled to acquit all defendants, except those who were abroad, and to release Kavala.

Reasoned judgment

The court stated in its reasoned judgment in writing that the evidence in the case file was illegal, and that there was no information in witness testimonies about the violent acts attributed to the defendants, and that in the Financial Crimes Investigation Board (MASAK) report, which was added to the file upon the allegations that Kavala had financed the Gezi protests, no evidence demonstrating that the protests were financed through Anadolu Kültür and Open Society Foundation was submitted. The court concluded that “with the evaluation of evidence other than the illegal evidence of communication records, which could not be taken as a basis to establish a judgment, it has not been possible to establish that the defendants attempted to hinder the government's enforcement ability by managing, directing, or persevering ‘marginal groups’ and ‘illegal leftist organizations’ that engaged in violent acts against the functioning of the public order.” Accordingly, the court acquitted the defendants since “sufficient, legal, concrete and precise evidence could not be obtained for their convictions.”

Some of the victims, as well as the prosecution, appealed the verdict. The prosecution asserted in its 90-page petition that the defendants attempted to overthrow the government and to prevent it from doing its duty, and repeated the request for their conviction.

In June 2013, millions of people exercising their constitutional rights participated in the Gezi Park protests through their free will, without any instruction from anyone. Whatever is claimed by the prosecution, whatever ruling comes out when this trial ends, the innocence of Gezi protests in the public conscience and its dignified place in social memory will remain. According to the collective memory of this society, Gezi protests have taken place as a democratic reaction based on justified demands.

In the face of the prosecution associating the Gezi protests with examples such as the Arab Spring or the revolutions in Georgia or Ukraine and claiming that it was orchestrated "by the same dark hands,” it is useful to make a reminder with this brief quote:

“We must understand this very well: There is no government in history that has managed to survive through oppression and fear. In every period of history, sooner or later, human dignity broke all the chains, destroyed all the walls, and the oppressed prevailed even if it was late. Governments that close their eyes, hearts and ears to the people cannot last. No yearning, no call of the people remains unrequited. No power can stand against the will of the people. States are for the people. They gain meaning with the presence, will, and support of the people. Whatever we want for ourselves, we want for our friends and brothers. Democracy and freedom are not a boon, but a human right.”

These words do not belong to one of the defendants in the Gezi Park trial. This statement, which cannot be denied by anyone who believes that the peaceful Gezi protests were a constitutional right and part of a democratic culture, is part of a speech by President Recep Tayyip Erdoğan, the number one victim in the Gezi Park trial as the Prime Minister of the Turkish Government at the time, delivered during a group meeting at the Parliament on 2 February 2011, about the civil unrest in Egypt at the time.

 

* Hürrem Sönmez is a lawyer and a columnist for diken.com.tr.

 

Top