Businessperson Osman Kavala was taken into custody on 18 October 2017 at Istanbul’s Atatürk Airport upon returning from Gaziantep following a meeting about a joint project his Anadolu Kültür Inc. was planning to implement with the Goethe Institut. On 1 November 2017, Kavala was referred to a criminal judgeship of peace on the allegation that he had “orchestrated the Gezi Park protests.” He was subsequently jailed pending trial on the charges of “attempting to overthrow the constitutional order” and “attempting to overthrow the government” under Articles 309 and 312 of the Turkish Penal Code (TCK) and sent to the Silivri Prison.
Kavala’s lawyers filed an individual application with the Constitutional Court in December 2017, claiming that his unlawful detention, the restriction of access to the investigation file and the regular reviews of continuation of detention to be held without a hearing before a court violated his right to liberty and security. Kavala’s lawyers also filed an individual application with the European Court of Human Rights on 8 June 2018.
Gezi Park indictment and Constitutional Court judgment
It later became clear that two separate investigations had been launched against Kavala, one in connection with the Gezi Park protests and the other with the 15 June 2016 coup attempt, although the latter did not immediately evolve into a case file. The Gezi Park investigation, however, resulted in an indictment, where Kavala and 15 others were accused of “attempting to overthrow the government of the Turkish Republic” under Article 312 of TCK. The indictment dated 19 February 2019 was accepted on 4 March 2019 by the 30th High Criminal Court of Istanbul.
On 22 May 2019, about a month before the first hearing of the Gezi Park trial, the Constitutional Court’s Plenary rejected Kavala’s individual application through a majority vote of 10 to five.
HSK replaces judges on court panel
The first hearing in the Gezi Park trial took place on 24-25 June 2019 in a courtroom near the Silivri Prison complex. The judges who oversaw the first two hearings of the trial on 24-25 June and 18 July were removed from the case by the HSK. The presiding judge Mahmut Başbuğ had written a dissenting opinion in the interim ruling issued at the end of the fist hearing that Kavala should have been released under house arrest. On 29 July, the HSK appointed a second panel of judges to the 30th High Criminal Court of Istanbul and assigned two judges from the new panel with the Gezi Park trial: Galip Mehmet Perk replaced Başbuğ as the presiding judge of the first panel and Talip Ergen replaced one of the judges. Judge Ahmet Tarık Çiftçioğlu, who voted for the continuation of detention of both Kavala and Yiğit Aksakoğlu, the second jailed defendant in the case, remained on the panel overseeing the Gezi park trial.
No release order despite ECtHR judgment
On 10 December 2019, the ECtHR ruled that Kavala’s pre-trial detention was in violation of his right to liberty and security and his right to a speedy decision on the lawfulness of his detention, and that Turkey should secure his immediate release. However, the trial court refused to release Kavala despite the ECtHR’s judgment in the next two hearings that followed in December 2019 and January 2020, saying the ECtHR’s judgment was not final.
On 6 February 2020, the prosecution submitted their final opinion of the case, asking the court to convict Kavala and two of his co-defendants, Yiğit Aksakoğlu and Mücella Yapıcı, of “attempting to overthrow the government through force and violence” under TCK Article 312, seeking aggravated life imprisonment for all three. The prosecutor also requested the continuation of Kavala’s detention, citing “flight risk.”
At the end of the final hearing of the trial on 18 February 2020, in a highly unexpected move, the court panel acquitted Kavala and eight other defendants in the case of all charges and ordered Kavala’s release.
Acquittal in Gezi Park trial and re-arrest on “coup” charge
Several hours after he was acquitted in the Gezi Park trial, a new arrest warrant was issued for Kavala. Upon leaving the Silivri Prison, Kavala was taken into custody and brought to the Istanbul Police Department. It became clear later that night that Kavala was arrested as part of the investigation in connection with the 15 July 2016 coup attempt, for which a release order had been issued for Kavala on 11 October 2019. After spending one day in custody, he was referred to a criminal judgeship of peace on 19 February 2020, which ordered his imprisonment on the charge of “attempting to overthrow the constitutional order” under TCK Article 309.
The same day, the HSK ordered an inquiry against the judges of the 30th High Criminal Court of Istanbul, who acquitted Kavala and his eight co-defendants.
Arrest on “espionage” charge in coup investigation
On 9 March 2020, one day before Turkey objected to the ECtHR’s judgment concerning Osman Kavala, the Istanbul Chief Public Prosecutor's Office filed new charges against Kavala in the coup investigation, citing new evidence, alleging that Kavala’s mobile phone sent signals from the same cellular base station as US academic Henri J. Barkey’s mobile phone on the same day, and that Barkey and Kavala came together at a restaurant several days after the 2016 coup attempt. The alleged “evidence” was based on testimony by an employee of a hotel in Istanbul where Barkey allegedly stayed at at the time of the attempted coup.
The prosecution asked the criminal judgeship of peace on duty to imprison Kavala pending trial based on “new findings from additional research suggesting that Barkey did intelligence work for foreign governments.”
Several days before the new imprisonment order, Kavala’s lawyers objected to his detention on remand, asserting that the period of maximum detention on remand for their client was about to expire as per the amendments introduced with the 1st judicial reform package.
On 9 March 2020, the prosecution referred Kavala to Istanbul’s 10th Criminal Judgeship of Peace for imprisonment pending trial on the charge of “political or military espionage” under Article 328 of TCK. Kavala addressed the judgeship from the Silivri Prison via the judicial video-conferencing system SEGBİS. After hearing Kavala’s statement in response to the new allegation, the judgeship ruled for Kavala’s imprisonment pending trial, citing “strong suspicion of crime.”
Release on “coup” charge
On 20 March 2020, another criminal judgeship of peace ruled for Kavala’s release on the charge of “attempting to overthrow the constitutional order” due to the expiry of the two-year maximum pre-trial detention period for the initial charge. Despite the ruling by the Istanbul 3rd Criminal Judgeship of Peace, Kavala remained in detention on remand on the charge of “political and military espionage.”
ECtHR judgment becomes final
In May 2020, the European Court of Human Rights rejected Turkey’s request for the chamber judgment in Osman Kavala’s application to be referred to the Grand Chamber, finalizing the 10 December 2019 judgment which held that Kavala’s detention on remand violated his right to liberty and security and that Turkey should secure his immediate release.
Second application with Constitutional Court and new indictment on "coup" and "espionage" charges
Kavala's lawyers filed a new application with the Constitutional Court in 2020 against his re-arrest on "coup" and "espionage" charges.
The First Section of the Constitutional Court announced that it would review this application on 29 September 2020. However, the prosecutor conducting the investigation against Kavala issued an indictment at the last minute. Saying the new indictment should also be reviewed along with Kavala’s application, the Court postponed its review until a later date.
The new indictment against Kavala was submitted to the Istanbul 36th High Criminal Court.
In the indictment, Kavala and US academic and former State Department official Henri Barkey are charged with "attempting to overthrow the constitutional order" under TCK 309, "attempting to abolish the Turkish Grand National Assembly or to prevent, in part or in full, the fulfilment of its duties” under Article 311 and “attempting to overthrow the Turkish government or to prevent, in part or in full, the fulfillment of its duties” under Article 312. Each provision carries an aggravated life sentence. They are also charged with “political or military espionage” under Article 328, which carries up to 20 years in prison.
The indictment alleges that Barkey maintains “deep connections with terrorist groups” while describing Kavala as Barkey’s “local collaborator.”
Accepting the indictment, the Istanbul 36th High Criminal Court set 18 December 2020 as the date for the first heairng of Kavala's new trial.
At the end of the first hearing, the Istanbul 36th High Criminal Court ruled for the continuation of Kavala’s pre-trial detention and adjourned the trial until 5 February 2021.
Acquittal in "Gezi Park trial" reversed
On 22 January 2021, the 3rd Criminal Chamber of the Istanbul Regional Court of Justice overturned the acquittals of nine defendants in the Gezi Park trial. The trial court’s judgment was appealed by the prosecution.
The Chamber held that the trial court did not take into account all the evidence in the indictment in the reasoning of its judgment of February 2020. Ruling that the trial court should reconsider their judgment in light of excluded evidence, the Chamber remanded the case to the 30th High Criminal Court of Istanbul.
The regional court held that a copy of the file against Kavala and Henri Barkey should be included in the Gezi Park file and that the trial court should render its judgment after considering merging the two files.
"Coup" case merged with "Gezi trial"
At the second hearing of Osman Kavala’s trial on “coup” and “espionage” charges, held on 5 February 2021, the 36th High Criminal Court of Istanbul ruled to merge the case with the Gezi Park trial and ordered the continuation of Kavala’s detention.
The Gezi Park trial resumed on 21 May 2021. Issuing an interim ruling at the end of the hearing, the Istanbul 30th High Criminal Court decided to wait for the execution of the arrest warrants for defendants who have failed to attend hearings so far; to review the case file for the “Çarşı trial” to decide on whether to merge with the present case; and by a majority ordered the continuation of Kavala’s detention. The presiding judge gave a dissenting opinion concerning Kavala’s detention, saying he should be released pending trial because all evidence has been collected. The court set 6 August 2021 as the date for the next hearing.
Gezi trial merged with Çarşı trial; hearing set for 6 August canceled
On 15 June 2021, the Istanbul 30th High Criminal Court, which oversees the Gezi trial, asked the court overseeing the Çarşı trial if they would assent to merging the two case files. The 13th High Criminal Court agreed to merge the two files on 28 July 2021. Mahmut Başbuğ, the judge presiding over the Istanbul 30th High Criminal Court panel overseeing the Gezi trial, was also appointed to the temporary panel of the 13th High Criminal Court due to the judicial summer vacation and was on the panel that assented to the merging of the two trials.
Less than a week later, on 2 August 2021, the Istanbul 30th High Criminal Court held an ex parte hearing, during which it officially ruled to merge the case with the Çarşı trial. The court also ordered the continuation of the detention of Osman Kavala. İlkan Koyuncu, one of the lawyers representing Kavala, told Expression Interrupted that the court canceled the hearing that was originally set for 6 August and decided that the merged trials will be overseen by the Istanbul 13th High Criminal Court. The next hearing of the merged trials was set for 8 October, when 35 members of the Beşiktaş football fan group Çarşı were to go on retrial for allegedly “organizing a plot against the government during the Gezi Park protests.” Their acquittals were overturned in April 2021 by the Supreme Court of Appeals.
Kavala is currently jailed pending appeal in the Silivri Prison in Istanbul.
Speaking in his defense via judicial videoconferencing system (SEGBİS), Osman Kavala stated that he was not acquainted with the defendants in the Çarşı case either before or during the Gezi events. He said: “People from different circles and of various views participated in the Gezi protests. I have never organized mass protests and no one has ever demanded financial support from me for any mass protest. As far as I know, nowhere in the world have the supporters of a football team taken action to change the government.”
Kavala said that the charges pressed against him were not based on tangible evidence. He continued: “The charge of taking part in the coup attempt of 15 July against me, like the charge of spying that was fabricated afterwards, is slander that is completely devoid of evidence, it is an assassination attempt on my reputation. That the prosecutor has listed activities carried out with minority groups as evidence of the crime of spying reminds one of spying charges based on the treason law of Nazi Germany, where people were defined based on race, and minorities were viewed as potential criminals. The prolongation of my imprisonment pending trial on weak excuses is summary execution of judgement, it is an attempt at manufacturing perceptions and to circumvent the ECtHR decision.”
At the first hearing of the merged Gezi and Çarşı case, the panel of judges ruled by a majority for Kavala to be kept behind bars on grounds of “no changes in the legal situation” and “strong suspicion of crime” and adjourned the trial until 26 November 2021.
Osman Kavala did not attend the second hearing on 26 November 2021. Issuing a statement through his lawyers before the hearing, Kavala said that his belief in the law had been weakened and he no longer enjoyed the right to a fair trial due to President Erdoğan’s statements targeting him and that he would no longer attend hearings or defend himself.
Speaking at the third hearing on 17 January 2022 which Kavala did not attend, his lawyer İlkan Koyuncu claimed that the Gezi and Çarşı cases had been merged to prolong his client’s time in remand. He said: “The 51 people named in this file are in the role of extras to prolong Osman Kavala's remand. This is a political case.” Ruling to keep Kavala in remand, the court adjourned the trial until 21 February 2022.
Merged Gezi and Çarşı cases separated
Osman Kavala did not attend the fourth hearing on 21 February 2022. Lawyers representing defendants in the Çarşı case and Kavala’s lawyers demanded the separation of the Gezi and Çarşı cases, which were not connected in terms of acts or perpetrators.
Deniz Tolga Aytöre, one of Kavala’s lawyers stated that although Kavala was imprisoned pending trial on charges of “spying” the indictment contained no evidence. Aytöre requested that the panel of judges recuse itself from the case, stating: “For four hearings now, there has been no interim decision regarding Kavala. He is on trial over three charges. Neither the panel of judges, nor the prosecutor has asked a single question. This is because we are on trial at the weekly meetings of political parties and in press statements. The court has become party to a political view. For this reason, we request it to recuse itself.”
The prosecutor for the hearing requested that the Çarşı case defendant’s file be separated due to the presence of defendants in remands and the stage of trial and for the Gezi case file to be submitted to the prosecution for the preparation of the opinion as to the accusations. The court rejected Osman Kavala’s lawyers’ request for recusal on the grounds it was “intended to prolong the trial.” It further ruled to separate the Çarşı case and to continue it on a new basis of accusations and the Gezi file to be submitted to the prosecution for the preparation of the opinion as to the accusations. Ruling to keep Kavala imprisoned pending trial by majority vote, the panel of judges adjourned the trial until 21 March 2022.
Call for life imprisonment
Prosecutor for the hearing Edip Şahiner presented their opinion as to the accusations on 4 March 2022, before the upcoming hearing of the “Gezi case” on 21 March. The prosecutor called for aggravated life imprisonment for businessperson Osman Kavala and architect Mücella Yapıcı for “attempting to destroy the government of the Republic of Turkey or to prevent it from fully or partially undertaking its duties by use of coercion and violence” (TPC 312). The indictment claimed that the defendants’ actions fell within the scope of “coercion and violence,” which is the legal element of the impugned crime. Describing the Gezi Park protests as an “uprising” in the indictment, prosecutor Şahiner claimed that all defendants had received training long before the Gezi Park events took place.
Osman Kavala attended the hearing on 21 March 2022 from Silivri Prison, where he is in remand, through SEGBİS. Köksal Bayraktar, one of Kavala’s lawyers, argued that following the separation ruling, the case should have been submitted to the İstanbul 30th High Criminal Court, which was the original court in charge. Requesting expansion of inquiry, Bayraktar said “The court has refused our request for release based on cell tower and HTS records. The appellate court has ruled that HTS records are not certain evidence. Despite this, the court has not asked which hotel Henri Barkey stayed in. It is said ‘They met at a restaurant.’ The court has not asked which restaurant. It did not call up the waiters from that restaurant. The court of appellate has overturned a ruling for a file in which witnesses and plaintiffs were not heard. It is not right to pronounce a ruling under these circumstances. I request that you submit the case to the original court and if that request is denied, I request that the hotel in which Henri Barkey stayed and the restaurant where they met be identified.”
The prosecutor stated that they would abide by the court’s decision regarding the expansion of inquiry and demanded that Kavala be kept imprisoned pending trial on grounds that the “imprisonment pending trial is proportionate to the degree and nature of the crime”.
Speaking on the request for his release, Osman Kavala said “I was arrested over two separate charges after my acquittal. The first was the 15 July coup attempt, from which I was acquitted ex officio, and then the spying charge. No tangible information or document has been produced to support the spying charge or the meeting with Henri Barkey. As the indictment does not mention the spying charge, it has become completely clear that my imprisonment over the spying charge is unlawful.”
Kavala’s lawyer Deniz Tolga Aytöre said that while the prosecutor had been requesting extension of imprisonment for the past two years for “spying” (TPC 328), he had not mentioned that charge in the indictment. Lawyer Bayraktar criticized the prosecutor’s decision to extend imprisonment and said “The prosecutor says imprisonment pending trial is a proportionate measure. How can a measure against a person who has been kept in remand for four and a half years be proportionate if this person does not know what crime he is alleged to have committed? The European Court of Human Rights has stated that proportionality is established according to the act. So which act has our client committed? ‘The degree and nature of the crime’ says the prosecutor. The degree and nature of which crime? We are on trial here for three separate charges.” Bayraktar requested Kavala’s release.
The court ruled to continue Kavala’s imprisonment based on HTS records and cell tower information. Denying the expansion of inquiry requests on grounds that it would not contribute to the case, the court ruled to grant time to defendants and their lawyers for the preparation of the defense against the accusations for the final time and adjourned the trial until 22 April.
Ruling: Life imprisonment
The final hearing in the Gezi-15 July trial with 17 defendants took place at the İstanbul 13th High Criminal Court between from April 22 to 25 April 2022. Attending the hearing from prison via SEGBİS, Osman Kavala said “The judicial process has become deformed under political influence and has become an act of depriving people of their freedom through the abuse of public authority.”
İlkan Koyuncu, one of Kavala’s lawyers, said “Regarding 15 July, Osman Kavala was arrested twice, released twice and interrogated twice. Not a single soul asked ‘Where was Kavala on 15 July?’ Spying is such a well-defined crime that its elements are either established or not. We thought ‘How could they arrest him for spying without the established elements’ and the indictment listed civil society work as spying activity.”
Asked for his final statement following the defense statements by lawyers, Kavala said “It is not legal to call for an aggravated life imprisonment sentence for me over evidence which is not actually evidence, when none of the evidence provided against me after the European Court of Human Rights’ rights violation decision has connected me with any crime or established reasonable suspicion. Just as in the second indictment, this is an act of assassination using the judiciary.”
Announcing its ruling following defendants’ final statements, the court decided to sentence Kavala to aggravated life for “attempting to destroy the government) (TPC 312) and to acquit and release him of “spying” as no adequate evidence had been provided. The court sentenced other defendants Mücella Yapıcı, Can Atalay, Tayfun Kahraman, Çiğdem Mater, Ali Hakan Altınay, Mine Özerden and Yiğit Ali Ekmekçi to 18 years of imprisonment each and ruled for their imprisonment pending trial.
The panel of judges took the decision with the majority voting for, and one member judge dissenting. The dissenting judge argued in his reasoned decision that the phone tap records in the file were “illegal and unlawful evidence” and “constituted banned evidence” and even if they were acceptable, they were “not by themselves sufficient to convict the defendants of the impugned crime,” that there was “no other tangible, certain, credible evidence beyond reasonable doubt that would be sufficient to convict the defendants of the impugned crime” and argued that all defendants should have been acquitted and Kavala released.
The ECtHR finds Turkey in violation
Following the violation process initiated by the Council of Europe Committee of Ministers against Turkey, the Kavala case had been submitted with the ECtHR to establish whether Turkey had violated the European Convention on Human Rights. Announcing its judgment on 11 July 2022, the ECtHR’s Grand Chamber ruled that Turkey had been in violation of article 46 of the European Convention on Human Rights as it had not implemented the Court’s 2019 judgement on Kavala’s imprisonment. The Grand Chamber reached its judgment with 16 votes for and one against. The only vote against the judgment was that of Saadet Yüksel, the ECtHR judge from Turkey.
In its judgment, the Grand Chamber stated that the “spying” charge that led to Kavala being arrested for the second time was based on “similar and indeed the same” facts as the facts that had been examined by the Court in 2019.
The Grand Chamber further stated that Turkey had submitted action plans and steps for the implementation of the ECtHR’s Kavala judgment in 2019, but these were not sufficient for the Court to consider Turkey to be acting in “good faith” and “in keeping with the spirit and consequences of the Kavala judgment.”
The case was re-submitted to the Council of Europe Committee of Ministers for the identification of sanctions appropriate to the violation process framework.