Osman Kavala has been behind bars for more than three years. The second application against his detention was rejected by the Constitutional Court. The top court's reasoned judgment was almost as if telling Kavala to “prove he is not a spy” 

 

 

ALİCAN ULUDAĞ

 

 

When businessperson and civil society leader Osman Kavala was arrested on 1 November 2017, he probably did not anticipate that he would fall into such a legal spiral. Imprisoned pending trial since then, Kavala was initially charged with “attempting to overthrow the government” in the Gezi trial. As soon as he was released from prison upon being acquitted, he was re-arrested on the allegation of instigating the failed coup attempt of 15 July 2016. He was further accused of “political or military espionage,” presumably in an effort to guarantee his imprisonment, and hence a third arrest warrant was issued.

 

 

The only scrap of evidence against him that remained constant in all three arrests was Kavala’s alleged contact/conversations with Henri J. Barkey, a Turkey-born US expert on the Middle East. Having their mobile phones emit signals from the same base transceiver station, coming across Barkey once at a restaurant and having three phone conversations with him were enough to constitute the basis of the allegations for “coup attempt” and “espionage.” However, neither the prosecutor’s office that prepared the indictment nor the court that oversaw the subsequent trial managed to demonstrate how exactly Kavala conducted “espionage” during meetings and phone conversations, the content of which remains unknown, what kind of information was provided to which foreign agencies, or precisely the manner in which these “played a role” in the 15 July coup attempt. Furthermore, the European Court of Human Rights (ECtHR) had found Kavala’s detention as part of the Gezi trial unlawful on that exact ground.

 

 

None of these prevented Kavala’s prolonged detention, nevertheless. In fact, the prosecutors who carried out the investigations against him were rewarded with appointments as the Deputy Justice Minister and a member of the Constitutional Court, respectively by the political power.

 

 

The Constitutional Court, on the other hand, ignored all of its established case law, deeming “conversations the content of which is unclear and emitting phone signals from the same base transceiver stations” as strong indications of the alleged crimes with respect to Kavala’s individual application. Jailed for more than three years, Kavala is now striving to prove that he is not a “spy” due to his alleged contact with Barkey, which is not based on any concrete data.

 

 

The case against Kavala constitutes a chain of trials that could potentially go down in the history of the Republic of Turkey. This analysis will endeavor to provide answers to the following questions: “What was Kavala accused of? What was the evidence against him? Who defended which opinions in the decision of the Constitutional Court?” In so doing, the Constitutional Court’s judgments on Kavala’s second application will also be discussed at some length. While explaining the whole process, it is beneficial to elaborate thoroughly on the legal spiral into which Kavala has fallen.

 

 

It all started with Gezi

 

 

On 1 November 2017, Osman Kavala was arrested on the charges of “attempting to overthrow the constitutional order” and “attempting to overthrow the government of the Republic of Turkey and to prevent it from performing its duties.” The prosecutor called for Kavala’s detention based on the Gezi Park protests, which occurred between May and September 2013, and the attempted coup of 15 July 2016.

 

 

After his interrogation, the Istanbul 1st Criminal Judgeship of Peace ordered that Kavala be placed in pre-trial detention for the aforementioned two charges on the same day. According to the court’s minutes, the grounds for Kavala’s detention were as follows:

 

 

* Having regard to the suspect being the leader and organizer of the events known to the public as “Gezi events,” an insurrection in which all terrorist organizations (FETÖ/PDY [Gülenist Terrorist Organization/Parallel State Structure], PKK/KCK [the Kurdistan Workers’ Party/ the Union of Kurdistan Communities], DHKP-C [People’s Revolutionary Liberation Party Front], MLKP [Marxist-Leninist Communist Party]) had actively participated and provided support in conformity with the aim to overthrowing the State and the Government of the Republic of Turkey and preventing them from performing their duties, and providing financial assistance to the persons involved in the demonstrations;

 

 

* With respect to the coup attempt orchestrated on 15 July 2016, there being concrete evidence giving rise to a strong suspicion that [the suspect] has committed the crime of [attempting to] overthrow the constitutional order by use of force and violence through participating in the coup attempt by means of contacting foreign nationals with Henri Barkey, one of the organizers of the coup, during the time of the coup attempt at Büyükada Splendid Hotel on 15-16 July 2016.

 

 

In brief, Kavala was charged with two counts of attempting to overthrow the government due to the Gezi protests and 15 July coup attempt, respectively. The prosecutor’s office included only the Gezi protests as part of the evidence in the preparation of the indictment against Kavala, thus, interestingly, chose not to indict him on the charges relating to 15 July, which was essentially the basis of his initial arrest. Perhaps, it was held “in reserve” for a new case to come.

 

 

Kavala’s defense statement

 

 

When he was brought to court with a request for his arrest, Kavala gave the following answers with reference to all the accusations against him in brief:

 

 

“The people I talked to on the phone during the Gezi events were my wife, friend, assistant, academic and journalist friends. None of these people are suspects, nor are they in any position to commit or organize the deeds by force and violence during the Gezi events. The indictment in question alleges that I spoke to or collaborated with or was involved in a plan with Henri Barkey, who resides in the United States, about the Gezi protests, which are completely unfounded allegations. I happen to know Barkey through various international conferences. His sister (K.B.) and I are working together to put up an exhibition. I have no personal relationship with Barkey whatsoever. To the best of my recollection, it was in a conference in 2011 when we met. He and I, in no way, talked about overthrowing or organizing an action against the government. We bumped into each other at a restaurant after the coup attempt on 18 July. We were sat at different tables. At this encounter, we did not exchange any words except to greet one another briefly. My workplace is on the Cumhuriyet Street, very close to Hilton, Divan, Ceylan and other such hotels. I suppose the fact that Barkey was around those hotels and made phone calls in those zones has led to such a misunderstanding.”

 

 

The Constitutional Court dismisses Kavala’s application

 

 

As he was jailed pending trial in the Gezi Park trial, Osman Kavala lodged an individual application with the Constitutional Court, which subsequently found no violation of the right to personal liberty and security safeguarded by Article 19 of the Constitution on 22 May 2019, holding that there was factual basis in the case file giving rise to a strong suspicion that the alleged offense had been committed. The statement by the Constitutional Court read:

 

 

“It cannot be claimed that it would be arbitrary and unfounded to consider the facts presented by the investigating authorities that the applicant was responsible for the violent incidents during the Gezi events and the desired political outcome  of the events (The investigating authorities have claimed that the ultimate aim of the events was to overthrow the Government.) as a strong indication that the alleged crime has been committed, which is necessary for the detention decision.”

 

 

It was pointed out that the main charge levied against the applicant by the investigating authorities was being the leader and organizer of the Gezi events. The decision also included the following statements:

 

“On the other hand, one of the charges on which the Judgeship based its detention decision was –although it was not included in the indictment-- that the applicant participated in the 15 July coup attempt by contacting Barkey, who was allegedly one of the organizers of the coup attempt and who attended the meeting held at the Büyükada Splendid Hotel on 15-16 July 2016 which was purportedly related to the 15 July coup attempt. This particular charge, which appears to be linked to the coup attempt, was considered to be related to the events that necessitated the declaration of the state of emergency across the country.”

 

 

First order of release on 15 July charges

 

 

In the meantime, the Chief Prosecutor’s Office decided, on its own motion, on the release of Kavala with respect to the detention decision regarding the charges related to 15 July on the account of having contacts with Henri Barkey, which was previously referenced in passing by the Constitutional Court as “although it was not included in the indictment.” The decision was based on the fact that Kavala was already detained as part of the trial where he was tried on charges related to the Gezi Park events and the assessment that “the continuation of the detention measure would no longer be proportionate, having regard to the current state of evidence.”

 

 

ECtHR rules Kavala’s right to liberty and security violated

 

 

While the Gezi trial was ongoing, the European Court of Human Rights (ECtHR) ruled that Kavala’s rights to liberty and security were violated in the case of Kavala v. Turkey (Application no. 28749/18) on 10 December 2019, holding that Turkey should take all necessary measures to put an end to Kavala’s detention, which the Court found to have pursued an ulterior political purpose, and to secure his immediate release. Therefore, it was implicit in the ruling of the ECtHR that the Constitutional Court decision which found no violation in the application of Kavala had been unmerited. However, the Istanbul 30th High Criminal Court which was presiding over the trial did not implement the ECtHR decision due in part to the fact that the Chief Prosecutor’s Office did not hand in the translation of the relevant decision prior to the hearing. Hence, Kavala was not released.

 

 

Acquittal of all charges in the Gezi trial

 

 

The same court would later rule for the acquittal of Kavala of all charges in the Gezi trial on 18 February 2020. In the reasoned judgment in writing, the court stated that the reports on communication records (wiretapping) were not admissible as evidence, manifesting that “A poisonous tree shall bear poisonous fruit.” In addition, it was stated that there was no evidence showing that Kavala had financed the Gezi Park events, that the claim remained abstract and ungrounded, and that there was no evidence demonstrating that the materials purportedly procured by Kavala were in any way used in violent acts.

 

 

As a consequence, the court concluded, in respect of the accused, including the applicant concerned, that “there were not sufficient lawful, concrete and conclusive evidence for conviction that the defendants were engaged in an attempt to hinder the government’s capacity to function by leading, directing or instigating the ‘marginalized groups’ and the ‘illegal left-wing organizations’ which are involved in grave forceful and violent acts against the public order.”

 

 

It is noteworthy that the reasoned judgment in writing made no mention of Kavala’s alleged conversations with Henri Barkey.

 

 

Kavala is re-arrested inside the prison vehicle

 

 

In view of the acquittal, the court ordered the release of Kavala. After he was officially released, Kavala was put in a prison transport vehicle to be taken out of the prison when he was arrested once again, this time by the Istanbul Chief Public Prosecutor’s Office as part of an investigation against the 15 July coup attempt, inside the vehicle, before he even got a chance to set a foot on the ground.

 

 

The course of events in the lead-up to his re-arrest was as follows in his own words, as was recounted by People’s Republican Party (CHP) Deputy Utku Çakırözer who visited Kavala in prison:

 

 

“Following the acquittal, I left the TV and the fridge in my room to fellow inmates, gathered my belongings and was taken out of the Silivri [Prison] by the prison vehicle. Before long, the prison vehicle was stopped on the road. A civilian official approached the vehicle and said there was a new arrest warrant for me. I was taken straight to the police station and then to the courthouse. After the detention ruling, they put me back in the same ward in Silivri.”

 

 

Second detention on the same evidence

 

 

At the Istanbul 8th Criminal Court of Peace where he was brought with an arrest request, Kavala articulated in his defense statement that he was being referred to arrest on the same charge twice, that the ECtHR had previously ruled that his detention as part of the investigation had been unlawful, and that the maximum limit of a two-year detention as part of the investigation within the scope of the relevant file had already expired.

 

 

Once again, the allegation of having contact with Barkey

 

 

On 19 February 2020, the court ruled for the detention of Kavala on the charge of “attempting to overthrow the constitutional order” as part of the investigation against the 15 July coup attempt. Once again, the evidence cited for the detention was an alleged liaison with Henri Barkey, notwithstanding the fact that Kavala had been arrested on the charges relating to the 15 July and was later released, on its own motion, by the prosecutor’s office as part of the Gezi Park investigation.

 

 

The second detention ruling argued that Kavala had participated in the coup attempt in connection with Henri Barkey, one of the alleged instigators of the coup, and other foreign nationals during a gathering held at the Buyukada Splendid Hotel on 15-16 July 2016, as regards the failed coup attempt on 15 July 2016.

 

 

It was also mentioned in the decision that “Kavala could have participated in the decision-making process of the coup attempt on 15 July 2016,” citing that his and Barkey’s mobile phones had emitted signals from the same station at the same time on the basis of the reports from base transceiver stations.

 

Third arrest on the charge of “espionage”

 

 

That, however, was not the end of story. On 9 March 2020, Kavala was arrested as per the request of the Istanbul Chief Public Prosecutor’s Office on the charge of “obtaining information from the state that should be kept confidential for the purposes of political or military espionage.” The ground for this arrest was Kavala’s alleged “contact with Barkey” as in the Gezi and 15 July arrests, citing the reports from the same base transceiver stations and a meeting at a restaurant.

 

 

Meanwhile, the Chief Prosecutor’s Office requested Kavala’s release on the charge of the “coup attempt” on the grounds that “two years have passed since detention,” following Kavala’s arrest on the charge of “espionage” on 20 March 2020, as result of which the Criminal Court of Peace released Kavala, even though Kavala himself had said in his defense statement that he had been arrested and later released on the charge in question as part of the Gezi trial, and that his two-year detention period had expired, when he was detained due to the allegations pertaining to the coup attempt. The prosecutor’s office and the competent court, which did not take Kavala’s statements into account at the time, apparently no longer needed him to be detained for the coup attempt when he was arrested on the charge of espionage.

 

 

The indictment tuned to the Constitutional Court

 

 

Concurrently, the Constitutional Court set a date (29 September 2020) to review the individual application of Osman Kavala. On 28 September, the day before the Court’s scheduled meeting, however, the then Deputy Istanbul Chief Public Prosecutor Hasan Yılmaz issued a surprise indictment against Kavala, seeking three aggravated life sentences for attempting to overthrow the constitutional order and attempting to prevent the government and the parliament from performing their duties, in addition to up to 20 years in prison on the charge of espionage. The indictment, approved by the Chief Public Prosecutor İrfan Fidan, also cited Henri Barkey as a suspect.

 

 

The high court postponed its review of Kavala’s application in the face of this new legal situation. Because if the high court had found a rights violation in the case of Kavala, the competent court might not have implemented their decision as a new indictment was already penned. Following the indictment, Hasan Yılmaz was appointed as the Deputy Justice Minister by President Erdoğan. It was, for all intents and purposes, a reward for Hasan Yılmaz.

 

 

The indictment cited mainly the allegations of conversations with Henri Barkey as evidence of “espionage” and “coup attempt.” Even though Kavala was acquitted of all charges by the relevant court in the Gezi trial, the prosecutor’s office referred to Kavala as “the organizer of Gezi” in the indictment, which included the following statements:

 

 

“It has been established that the suspect Mehmet Osman Kavala, who is the representative of the international speculator George Soros in Turkey, had played an active role in planning and executing the Gezi Insurrection, which was carried out in line with a plan and a well-defined scenario, and deepening its effects by means of spreading it to the entire country; that he controlled the organizations Taksim Platform through the intermediary of Mine Özerden and the Taksim Solidarity through the intermediary of Şerafettin Can Atalay, Tayfun Kahraman and Ayşe Mücella Yapıcı from behind the scenes, both of which prepared the ground for the escalation of violence by infuriating the protesters through provocative posts and calls for action during the time of the insurrection; that he controlled the Forum Coordination activities carried out in order to increase the public support for the insurrection and to ensure the spread of the actions throughout the country through the intermediary of Hanzade Hikmet Germiyanoğlu; that he personally managed all international initiatives related to the insurrection and that the majority of the needs of the protestors therewith was satisfied by Osman Kavala.”

 

 

The routine evidence of having contacts with Barkey

 

 

The indictment cited his contact with Henri Barkey as evidence of Kavala’s alleged participation in the 15 July coup attempt. It was argued that both Barkey’s and Kavala’s mobile phones had received signals from the same base transceiver stations at the same time period, therefore they had been in the same location.

 

 

The indictment mentioned that Barkey left Turkey on 3 July 2016 and re-entered the country in the early hours of 15 July 2016 to keep abreast of the coup attempt, adding that Kavala had also left the country to travel to France shortly after Barkey’s exit, on 6 July 2016.

 

 

“These activities before the 15 July coup attempt intersect with the preparations for the coup attempt in a way that goes against the natural flow of life, which indicates that both suspects were aware of the coup attempt in advance and had established a series of domestic and international connections to build the infrastructure for the coup attempt,” according to the indictment. In contrast, the indictment could not explain what concrete actions Kavala took part in when he was abroad to prepare the infrastructure for the coup attempt.

 

 

It stated, however, that Kavala had phone conversations with Barkey for 28 seconds at 12:18, 36 seconds at 16:06, and 193 seconds at 16:10 on 8 October 2016. It was also stated in the indictment that Kavala had met with Barkey and the individuals S.T. and M.D., who both attended the gathering on Büyükada, at dinner at a restaurant in Istanbul’s Beyoğlu district, shortly after which Kavala went abroad.

 

 

According to the Chief Public Prosecutor’s Office, the lack of direct communication between Kavala and Barkey despite the latter’s short visits to Turkey and their well-established communication was due to Barkey’s extensive knowledge and implementation of intelligence tactics and procedures, and that both parties showed the utmost care in this regard; this claim by the prosecutor’s office per se would eventually be reiterated by the Constitutional Court as well.

 

 

The following riveting comments were made regarding the two in the indictment:

 

 

“It has been determined that Kavala and Barkey had established and ensured the support of non-governmental organizations that are ostensibly legal but in fact serve illegal purposes, in order to analyze the sociological, economic and political base of the country, to identify the nerve endings of the society and to mobilize them when necessary, thereby benefiting from the institutions they utilized as tools to uncover and further deepen the divisions in the society under appropriate conditions.”

 

 

The allegation of “local collaborator”

 

 

It was argued that “Since Barkey has organic ties to foreign state intelligence agencies and acts against Turkey in this regard, his actions constitute forthright the crime of obtaining information from the state that must be kept confidential for the purposes of political or military espionage.” It was alleged in the indictment that Kavala conducted his activities as Barkey’s representative and local collaborator in Turkey, and therefore his actions amounted to the same crime.

 

 

In the indictment, it was stated that Barkey held a gathering called “Iran and Its Neighbors” attended by a total of 15 people at Büyükada Splendid Hotel, Istanbul between 15 and 17 July 2016, adding that the meeting was indeed a front to follow up on the coup attempt. The prosecutor’s office, however, failed to cite the content of the said meeting in the case file, nor the fact that Kavala was not in attendance. In fact, the testimony of a hotel receptionist who was interviewed as part of the investigation, stating that Henri Barkey had gone to the reception and said, “It’s a good thing that the coup attempt was prevented early on. Had it gone unnoticed, it could have been very bad,” was not regarded as a favorable situation on his behalf.

 

 

The Istanbul Chief Public Prosecutor İrfan Fidan who had approved the indictment was rewarded with appointment as a member to the Court of Cassation by the Council of Judges and Prosecutors (HSK) on 27 November 2020. On the fourth day of his membership, before he even opened up a single case file, he ran for membership of the Constitutional Court. İrfan Fidan was among the three candidates with the most votes from the Court of Cassation before 29 December 2020, when the Constitutional Court was scheduled to review the individual application of Osman Kavala. In January, he was appointed as a member of the Court by President Erdoğan.

 

 

The Constitutional Court finds no violation

 

 

At the end of this process, the Constitutional Court reviewed the individual application lodged by Osman Kavala on 29 December 2020. The meeting was critical. The high court concluded, by a majority of 8 votes to 7, that there had been no violation of Osman Kavala’s right to personal liberty and security in response to the claims that his detention was unlawful and exceeded the reasonable period of time.

 

 

Eight members of the Court who found no violation were Kadir Özkaya, Muammer Topal, Burhan Üstün, Recai Akyel, Rıdvan Güleç, Yıldız Seferinoğlu, Selahaddin Menteş and Basri Bağcı, six of whom were appointed to the membership of the court by President Erdoğan.

 

 

The eight-member majority announced their reasoned decision in writing, which disregarded the rather liberal approach of the Court in respect of convictions by then, in March. The arguments and the language set forth in the reasoned decision in writing were like a carbon copy of the indictment. The reasoned decision in writing appeared to have been penned by a prosecutor; it was not authored in the style of a high judge.

 

 

“Espionage is difficult to investigate”

 

 

The reasoned decision in writing discussed whether there was “a strong indication that the crime had been committed” as regards the detention decision. It was as if the high court was acting in line with the logic, “Prove you are not a spy,” towards Kavala.

 

 

“According to the findings and assessments of the investigating authorities, Henri Barkey, with whom the applicant had contacts, is a person who conducts espionage against the interests of Turkey,” said the indictment, adding that Barkey was a person of interest who had connections to the 15 July coup attempt and FETÖ/PDY, the structure behind the coup attempt. The decision also asserted:

 

 

“It should be kept in mind that the investigating authorities are in a very difficult position in detecting the espionage-type crimes committed in secrecy by their nature and in determining the evidence and facts related to them in comparison with other crimes. Furthermore, having regard to the fact that the actions that constitute the subject of such crimes are often carried out in cooperation with the intelligence agencies of other countries and the perpetrators of such crimes have more ability to conceal their actions when compared to other suspects may require the adoption of slightly different criteria regarding the type and level of the evidence sought for, at least at the outset of the investigation or at the stage when preventive measures such as detention are applied.”

 

 

When two signals intersect

 

 

The Constitutional Court decision stated that two allegations could be considered as a “completely strong indication of the crime.” The first was the argument regarding Kavala’s connection to Henri Barkey, cited as “a meeting in a restaurant immediately after the attempt, the intersection of telephone signal information indicating being in the same location on numerous occasions, face-to-face meetings in certain conferences, several phone conversations on the same day.”

 

 

In addition, the decision cited “findings on a flash disk and a mobile phone seized from the applicant” regarding the allegation that Kavala “supported or financed some projects that could be identified with the ideology and assertions of the PKK terrorist organization” with respect to the crime of espionage.

 

 

“Kavala is a flight risk”

 

 

In its assessment of whether the detention measure served a legitimate purpose, the court claimed that Kavala was a flight risk. Noting that the information in the investigation file made it clear that the applicant had connections with a number of people, institutions and organizations abroad, the decision stated:

 

 

“Having regard to the nature of the alleged crime and the applicant’s connections to abroad, it can be said that if released, the possibility of fleeing to another country and continuing his life there is far greater in this case than that of others. Moreover, the nature of the espionage crime in question and the opportunities and capabilities of the persons associated with the crime concerned can be considered as a factor that increases the possibility of obfuscating with evidence. Therefore, it cannot be claimed that there was no factual basis with regard to the grounds for detention, which the investigating authorities and the Criminal Court of Peace, which ruled for detention, recounted as the risk of tampering with the evidence and absconding, emphasizing the nature of the crime with respect to the applicant.”

 

 

The decision made rather subjective assessments as to whether the detention measure was proportionate to the nature of the crime, stating that, “It may be insufficient in terms of a crime of such nature to employ alternative preventive measures other than detention. Accordingly, it was concluded that the detention measure imposed on the applicant was proportionate under the circumstances of the concrete incident in view of the nature and the importance of the crime and the gravity of the sanction as stipulated for the crime in the law.”

 

 

“2 years and 10 months of detention is reasonable”

 

 

The Constitutional Court did not recognize Kavala’s claim that his detention exceeded the reasonable time period for the investigation phase and argued that it had also dismissed an earlier application regarding his detention as part of the Gezi trial. However, the decision concealed the fact that Kavala was later acquitted in the Gezi trial. The decision asserted:

 

 

“The difficulty and the complexity inherent in the investigation conducted against the applicant on the charges of attempting to overthrow the constitutional order and obtaining information from the state that should be kept confidential for the purposes of political and military espionage is obvious compared to other crimes. In this respect, there is no negligence in terms of the investigation process, considering the difficulty of gathering evidence. In this context, it has been concluded that the detention period of approximately 2 years and 10 months was reasonable, given the fact that the reasons for the decisions regarding the continuation of detention against the applicant were relevant and sufficient in terms of providing legitimate grounds for his deprivation of liberty, and that no negligence was detected in the conduct of the investigation/ prosecution process for the alleged crimes in question.”

 

Dissenting opinions refute the Court’s judgment

 

President Zühtü Arslan, Deputy President Hasan Tahsin Gökcan, members Engin Yıldırım, Hicabi Dursun, Celal Mümtaz Akıncı, Emin Kuz and Yusuf Şevki Hakyemez, who dissented with the Court’s decision on the Kavala application, on the other hand, shared the view that Kavala’s detention was unlawful. With the exception of Hakyemez, the other dissenting judges had been appointed as members of the Constitutional Court during the presidency of Abdullah Gül. The dissenting opinions of these members amounted to almost a refuting of the Kavala case and the Constitutional Court’s justifications.

 

The most notable dissenting opinion against the Court’s decision came from President Zühtü Arslan, who referred to the ECtHR judgment that in the absence of reasonable doubt indicating that Kavala committed a crime, Article 5 (1) of the European Convention on Human Rights was violated. Arslan also pointed out that Kavala was released and acquitted of all charges in the Gezi trial.

 

Noting that the detention measure was a severe restriction on the right to liberty and security, Arslan wrote: “Therefore, detention can only be employed in mandatory situations and when legal conditions exist. Otherwise, detention can cease to be a measure to prevent a person from absconding or tampering with evidence, and instead turn into a means of punishment.”

 

 

“Prosecution fails to present concrete data”

 

 

Asserting that the main basis of the accusation in the detention decision was Kavala’s contact with Barkey, Arslan stressed that the investigating authorities failed to present concrete data indicating anything other than Kavala’s statements regarding his connection with Barkey. Arslan stated that both the detention decision and the indictment invoked abstract allegations relying on certain assumptions as facts that the alleged crime had been committed, adding “Beyond that, there is no concrete information regarding the content of the applicant’s reported phone conversations or face-to-face meetings with Barkey.”

 

 

Recalling that the most concrete allegation regarding Kavala’s relationship with Barkey was that they met and had a conversation at a restaurant in Istanbul’s Karaköy district a few days after the 15 July coup attempt, Arslan remarked, “The applicant insisted that there was neither such a meeting nor such a conversation, that he came across Barkey at the restaurant where he went with two experts in the field of cultural heritage, and that Barkey came to the restaurant with another group and sat at a separate table.”

 

 

Arslan pointed out that there was no indication in the investigation documents refuting the defense statement of the applicant or the witness testimony, and said: “Furthermore, even if it is assumed for a brief moment that such a meeting took place, there is no allegation regarding the content of the said meeting. Therefore, it seems unlikely that such a meeting, which is presumed to have taken place, should be considered a strong indication that the applicant had committed the alleged crime of espionage.”

 

 

“Anybody can be a suspect by these standards”

 

Recalling that the applicant was alleged to have come into contact with Barkey on various dates based on the historical traffic search (HTS) reports and base transceiver station records, Arslan argued:

 

 

“Likewise, even if it is assumed for a brief moment that such and such a meeting actually took place, there is no information or even a claim regarding their content. Should the records that suggest a phone conversation with Barkey, born and raised in Istanbul and has conducted numerous academic studies on Turkey, be considered as a strong indication of the crime of obtaining information from the state that should be kept confidential for political and military espionage, it could give rise to a situation that is totally inexplicable in terms of legality where any person who has somehow spoken on the phone with the person concerned would be under strong suspicion of espionage, and hence could be detained.”

 

 

“Therefore, it can only be possible to claim that the persons who had conversations with an academic who allegedly worked for foreign intelligence agencies committed the crime of espionage due solely to these conversations without any assessment of the content of the conversations by hypothetical and abstract assessments,” commented Arslan, “In this context, the most important issue with regard to the present application is that the investigating authorities have failed to raise even a simple suspicion, let alone a strong indication, with regard to the existence of the crime of political or military espionage for which the applicant was detained.”

 

 

“Which confidential information was obtained?”

 

 

Noting that the main question for determining the existence of a strong suspicion of the crime when examining the present case within the scope of this information as regards to the crime of espionage was “What kind of information did the applicant obtain from the state that should have been kept confidential?,” Arslan stated that the answer to this plain question could not be found in either the detention order or the indictment. More importantly, asserting that there was no explanation with regard to what kind of confidential information the applicant obtained, or from whom, how and where he obtained them, Arslan stated, “It is not clear from the investigation documents which confidential information Barkey, who is presumed to have ‘extensive contact’ with him, had and how he managed to obtain them, either.”

 

 

Recalling that the alleged meetings between Kavala and Barkey, who is an academic in the United States and a Middle East analyst and expert at a think tank, were related to the years 2013-2016, Arslan mentioned that the investigating authorities had this information from the outset of the investigation: “Information regarding his contact with Barkey which is cited as evidence of the applicant’s detention for espionage on 9 March 2020 has been in the investigation file in general terms for more than three years. During this period, the authorities have failed to present a new fact regarding the content of the contact in question, which would justify the detention order on the charge of espionage. Therefore, more than three years after the detection of his contact with Barkey, the investigating authorities have failed to present the reason for the continuation of the detention of the applicant on the charge of espionage.”

 

 

Emphasizing that Kavala had been arrested three times, released three times and acquitted once based mainly on the same evidence in the last three years, Arslan stated that Kavala’s alleged relationship with Barkey was included in all three detention decisions from the beginning. Noting that the relationship with Barkey was cited as a “strong suspicion of criminal conduct” in all three detention decisions, Arslan stated that the second and the third detention decisions failed to furnish any new findings regarding the content of conversations with Barkey.

 

 

Arslan said, “As a result, despite the fact that information about the applicant’s relationship with Barkey was known to the investigating authorities more than three years ago, there being no (new) findings as to the nature or the extent of this relationship, and there being two previous detention decisions and most importantly one ex officio release decision due to the same evidence, the acceptance of the same evidence as the basis for detention on the charge of political or military espionage in the present case indicates that the detention measure is disproportionate.”

 

 

“No one can be branded as a spy for travelling abroad”

 

 

Underlining that it should be shown that a given NGO conducts activities that can be described as espionage within the meaning of the relevant law, not relying on abstract and general accusations, but based on concrete information, documents and facts, Arslan said, “Otherwise, any NGO can be rendered ineffective and nonfunctional with similar accusations.” In his opinion, Arslan also made the following inquiries: “It has not been shown how the documentaries seized from the applicant, his support for the filming of a documentary and organizing a gathering on ‘the Armenian events’ were linked to the alleged crime. That the applicant travelled abroad more frequently before the 15 July coup attempt compared to other years was also cited as evidence. However, there was no explanation provided regarding the content of these travels, the contacts made during these travels, and most importantly, their connection with the alleged crimes. Therefore, it is not possible to accept these and other similar accusations as strong indications that the applicant has committed the crime of espionage.”

 

 

“Constitutional guarantees will be rendered void”

 

 

“The acceptance of abstract and general accusations as a strong indication that the crime has been committed based entirely on assumptions with reference to the evaluation that the main feature of the crime of espionage is secrecy can ultimately render the guarantee provided by the Constitution and the law in terms of the right to personal liberty and security meaningless and void,” said Arslan, opposing the opinions of the members in majority.

 

 

Deputy President Hasan Tahsin Gökcan also emphasized that the facts invoked for the accusation and detention of Kavala were not admissible as evidence and that there was no legal basis for detention.

 

 

Member Engin Yıldırım quoted Kafka’s novel The Trial in his dissenting opinion. Recalling that the character of Joseph K. had found himself in a spiral and labyrinth of law one fine morning in the novel, Yıldırım said, “‘Joseph K. lived in a country with a legal constitution...  all the laws were in force...’ In our present case, the applicant being released twice and detained three times on charges based almost entirely on the same facts and without the manifestation of significant new evidence that would raise a strong suspicion is similar to a Kafkaesque legal spiral.”

 

 

“Speculative approach”

 

 

Members Hicabi Dursun and Yusuf Şevki Hakyemez stated in their joint dissenting opinion, “We would like to emphasize that it is not possible for a detention decision given as a result of the adoption of a legal approach that cannot be demonstrated to go beyond being speculative to meet the legal standards in the context of the lawfulness of detention, as set forth both with its scope and meaning in Article 19 of the Constitution and in the established case law of the Constitutional Court to date.” Noting that the allegation of espionage was not supported by credible evidence that could be considered strong, and that the existence of strong indications was not grounded, the members found that “the contents of phone conversations, meeting transcripts or other concrete data between the suspects have not been put forward based on the evidence in the case file regarding the crime of espionage.”

 

 

Member Celal Mümtaz Akıncı remarked, “It is difficult to understand the connection between the documents seized from the applicant, the applicant providing financial support for the filming of a documentary or his arranging an event about the Armenian events and the alleged crimes of attempting a coup and espionage.”

 

 

Member M. Emin Kuz stressed that the applicant had been arrested and then released twice on charges based on the same facts, but that the grounds for this were not sufficiently and consistently put forward in the reasoning of the investigating authorities regarding the proportionality of the third detention decision.

 

 

Retrial of the Gezi protests

 

 

On 22 January 2020, a few weeks after the Constitutional Court reviewed Osman Kavala’s second individual application, the 3rd Criminal Chamber of the Istanbul Regional Court of Justice overturned the acquittals of nine defendants, including Kavala, in the “Gezi trial.” The case file was thereafter remanded to the Istanbul 30th High Criminal Court. The trial will resume on 21 May 2021, after the merging of the case file with the file where Kavala is accused of “coup attempt” and “espionage.” And thus, for Kavala, the case that once ended in his acquittal is being reopened in the perpetual legal spiral.

 

 

In lieu of conclusion

 

 

In view of the continuous legal process regarding Osman Kavala, it becomes clear that the chain of trials, in its entirety, pursues a political purpose, rather than a legal one. Arrest warrants, indictments, release orders and re-arrests demonstrate that a certain “will” wants to keep Kavala behind bars.

 

 

In a legal spiral that saw two trials in which three arrest warrants, three release orders, one acquittal, one ECtHR ruling on rights violation, two Constitutional Court rejections were issued, Kavala was repeatedly faced with the same evidence and the same charges. Despite the non bis in idem principle signifying to the effect that “no one can be prosecuted more than once for the same offense” in criminal law, Kavala’s alleged contact with Barkey was able to bear two counts of charges on “coup attempt” and one on “espionage,” in addition to three arrest warrants.

 

On the other hand, the Constitutional Court, which is mandated to safeguard the fundamental rights and freedoms pursuant to the Constitution, found it lawful to arrest a person on the charge of “espionage” over phone conversations and meetings the content of which remain unknown, in violation of all the established case law of the court.

 

Despite the insistence of seven members in minority, including President Zühtü Arslan, that “the conversations whose content is unclear cannot be considered as a strong indication of the crime,” the eight-member majority refrained from reviewing the individual application lodged by Osman Kavala in a liberal interpretation, which can be considered as a noteworthy indicator of the change in the constitution of the high court.

 

Admittedly, the impact of the appointment of six out of the eight members who found “no violation” to their current positions by President Erdoğan (which totaled up to seven with the arrival of İrfan Fidan) underlies this justification. The majority members of the Constitutional Court acted not in favor of the rights and freedoms, but out of the drive to protect the Erdoğan regime regarding the detention of Kavala, who was accused of being “the financier of Gezi” by none other than President Erdoğan.

 

If a court were to release Kavala “inadvertently” today, it would hardly be a surprise when the prosecutor’s office would take him back into custody immediately. Because the process has not been lawful for a long time.

 

In a country where such a legal spiral is experienced, there can be neither judicial independence and impartiality, nor life safety of the citizens, let alone the legal security.