The court once again ruled for the continuation of Osman Kavala’s pre-trial detention by a majority. Next hearing set for 21 February 2022

 

CANSU PİŞKİN, ISTANBUL

 

The “Gezi trial,” in which 16 civil society figures, including the jailed businessperson Osman Kavala, are being retried for allegedly “organizing and financing” 2013’s Gezi Park protests, resumed at Istanbul 13th High Criminal Court on 17 January 2022. With the addition of 35 defendants who are members of the Beşiktaş football fan group “Çarşı,” who are being retried for allegedly “organizing a plot against the government during Gezi protests,” there are now 52 defendants in the case. The two files were merged last summer.

 

P24 monitored the hearing, which marked the third since the joinder. The hearing was held in the 27th High Criminal Court’s courtroom due to the large number of defendants and lawyers in the case.

 

“Gezi” defendants Mücella Yapıcı, Can Atalay, Tayfun Kahraman, Mine Özerden, Yiğit Ali Ekmekçi, Hakan Altınay and some of the defendants from “Çarşı” case and defense lawyers were in attendance.

 

Kavala, the only jailed defendant in the case, did not attend the hearing. His lawyers were present in the courtroom. Kavala, who has been behind bars since November 2017 as part of the “Gezi” and “15 July coup attempt” investigations against him, had said in a statement issued in October 2021 that he would not be attending hearings anymore because he did not believe this was a fair trial.

 

“The prosecution has to prove its claim”

 

“Gezi” defendant Can Atalay, who is also a lawyer, addressed the court first. Atalay said millions of people who took to the streets during the nationwide Gezi protests were being falsely accused of receiving grants for staging a protest that is part of their constitutional rights.

 

“Neither we nor a single Gezi protester received a single penny but the training seminars attended by the prosecutor who wrote this indictment are funded by the EU. The defendants in the first trial already explained that Gezi was not funded by anyone and that a social uprising of this scale could not be organized through funds as claimed by mind-blowing conspiracy theories. If the prosecution is going to insist on this claim, they have to prove it,” Atalay said.

 

Noting that they are charged with Article 312 of the Turkish Penal Code (TCK) under the section Offenses Against Constitutional Order, Atalay continued: “Do protesting the government with peaceful demonstrations, defending the right to the city, nonviolent action or civil disobedience, as stressed in the indictment, really constitute the crime of attempting to overthrow the government?”

 

Atalay concluded his statement by requesting that the court abide by the European Court of Human Rights (ECtHR) judgment for Osman Kavala.

 

Gezi defendant Tayfun Kahraman addressed the court next: “It was the conscience of the people that took to the streets following the police violence in Gezi Park. The righteous cries of the people who took to the streets across the country cannot be called ‘organized.’ No money or power is strong enough to carry out such an ‘organized’ act. The protests were an outcry for constitutional rights. There is no crime here.”

 

Mücella Yapıcı, one of the defendants in the Gezi trial, said, “We are like extras in a stage play whose ending is already known. These trials are held in order to criminalize Gezi. Judges who acquit us keep disappearing.”

 

Evren İşler, the lawyer who represents Atalay, Kahraman and Yapıcı, noted that the prosecutor who prepared the indictment for the Gezi trial was charged with “fabricating evidence.” İşler asserted that the Gezi indictment, which was prepared by “re-evaluating evidence,” did not set out which evidence had been reevaluated and on which grounds.

 

“We are on trial based on assumptions”

 

Hakan Altınay, another “Gezi” defendant, said: “I said it in the first trial; I never understood what I was accused of and why. I reject the accusations. The indictment should clearly state what the accused is accused of and based on what evidence, leaving no room for doubt. This principle has not been complied with in this indictment.” Altınay demanded to be granted exemption from attending hearings.

 

Altınay’s lawyer Tora Pekin said: “Hakan Altınay is accused based on the Open Society Foundation. If they provided financial support to Gezi protests, this should be among the foundation’s decisions. We ask the court to request the foundation’s 2013 books and records, audit reports showing the projects it funded in 2013 and other relevant documents.”

 

Mine Özerden, another Gezi trial defendant, reminded that her previous requests to be given a clear explanation as to the act and the offense she is charged with have been rejected by the court. “I don’t know how to make a defense statement without knowing what I am being accused of, based on what concrete evidence. Osman Kavala has been in prison for 1539 days, although none of the alleged crimes could be proven. We are being tried based on assumptions. We assume that the ever-changing court panels read the copy-paste indictment that is thousands of pages long. Considering that you will still want to abide by the rule of law despite all the political pressures, I demand my acquittal, the lifting of my travel ban and to be exempt from attending hearings. On a final note, I would like to learn how we victimized the 60th government, whose members are listed as complainants in the indictment.”

 

Özerden’s lawyer Tuğçe Duygu Köksal stated that they will make their defense statement after the evidence is gathered.

 

Yiğit Ali Ekmekçi, another Gezi trial defendant, said the prosecutor was “not concerned about presenting evidence and proving the evidence.” “Unfortunately, the indictment is a figment of the prosecutor’s office,” he said.

 

“51 people put on trial for keeping Kavala behind bars”

 

İlkan Koyuncu, one of the lawyers representing Osman Kavala, addressed the court next. Koyuncu stated that although his client is currently in pre-trial detention on the charge of “espionage,” the court has not even mentioned this accusation in the three hearings held since the joinder.

 

Koyuncu added: “Mücella Yapıcı said in her statement that they were like ‘extras’ in a play. She is right. The remaining 51 defendants in this case are all ‘extras’ in order to prolong Osman Kavala’s detention. This is a political trial.” Koyuncu demanded Kavala’s release.

 

Köksal Bayraktar, another lawyer representing Kavala, addressed the court in relation to the TCK 309 and 312 charges in the indictment. “According to these provisions, the purpose of force and violence must be favorable to prevent the Parliament from performing its job. It is not possible to apply these provisions in the Gezi [trial],” Bayraktar said, adding: “The second indictment declared Osman Kavala a ‘spy.’ The indictment is neither objective nor legal. It is a political indictment.”

 

Bayraktar added that the court has been using the same template as the grounds for their decisions to keep Osman Kavala in pretrial detention in their interim rulings but that this template did not include any justification: “In its interim decisions your court keeps ruling for ‘the continuation of pre-trial detention considering that there has been no change in the legal circumstances; the nature of the alleged crime; … and the fact that judicial control measures will not be sufficient.’ Two other courts that previously oversaw the cases against Kavala used the same templates. But this template does not explain the grounds for the rejection of Kavala’s release request. You have been rejecting our requests for release by simply juxtaposing certain words from the law. According to the ECtHR, it is unlawful to reject release requests without justification. The ECtHR held that there is a violation of Article 18 in Osman Kavala’s application. Violation of this article means that the case is political. On 19 January 2022 the Committee of Ministers of the Council of Europe will be evaluating your decision. If Kavala is not released, the ECtHR will impose sanctions on Turkey. This could lead to expulsion from the Council. If Turkey wants to become an EU member, it has to comply with the judgments of the European Court. End this unlawfulness today and let our client regain his freedom.”

 

After hearing all statements, the prosecutor demanded the continuation of Kavala’s detention and the lifting of judicial control measures imposed on Özerden and Altınay.

 

In its interim decision, the court ruled by a majority to keep Osman Kavala in pretrial detention “considering that there has been no change in the legal circumstances; the nature of the alleged crime; … and the fact that judicial control measures will not be sufficient.” Also ruling for the continuation of the judicial control measures imposed on the other defendants, the court accepted requests by Özerden and Altınay to be exempt from attending hearings and set 21 February 2022 as the date for the next hearing.