Statement by Osman Kavala

at the 6th hearing of Gezi Trial - 18 February 2020 

Mr. President and the Members of the Panel,                                                    

The European Court of Human Rights decision demanding my immediate release underlines the absence of evidence in the case file and the indictment regarding my use of coercion or violence, launching or coordinating violent protests or supporting those engaging in activities considered as a crime.

The Decision determined the following:

  • In the absence of facts, information or evidence showing that he had been involved in criminal activity – that the applicant could not reasonably be suspected of having committed the offense of attempting to overthrow the Government, within the meaning of Article 312 of the Criminal Code.
  • The facts in the indictment are not sufficient to raise suspicions that the applicant had sought by force and violence to organize and fund an insurrection against the Government.
  • The authorities are unable to demonstrate that the applicant’s initial and continued pre-trial detention were justified by reasonable suspicions based on an objective assessment of the acts in question.

ECtHR also underlines that it is the responsibility of the court to demonstrate objectively the suspicion behind the decision to deny one’s freedom. The President of the Constitutional Court, Zühtü Arslan pointed at the need to “bring signs that indicate a linkage between the applicant and the criminal aspects of the events to court’s attention,” and thus, their absence in the case.

ECtHR underscored that doubt, even in good faith, does not constitute grounds for arrest. The suspicion needs to be within reason and for that, it needs to be justifiable with objectively convincing facts and information pointing at the applicant as the suspect.

Which brings me to the need for the Prosecution and the Members of the Panel to put themselves in the position of objective observers to show the link between the defendant and the criminal acts of which he is accused. This is an indispensable condition to ensure their doubt is within reasonable suspicion. In the absence of this condition, the strong feeling of suspicion and conviction of the Prosecutor or the Judge does not qualify as reasonable suspicion.

The ECtHR Judges analyzed the information and facts provided in the case from this perspective, that of an objective observer, and concluded the aforementioned decisions. The ECtHR is not only the highest jurisdiction recognized in our Constitution but also a court that is independent from external factors to the case, such as the political views of the government or the defendant, since it does not handle the case directly and is competent and qualified to hold the position of an objective observer and judge accordingly. Their findings and decisions should be acknowledged even simply for these reasons.

The conspiratorial fiction that suggests events surrounding Gezi is an attempt to overthrow the government, planned and coordinated from a single center is not derived from the facts in the indictment. There is no information or document to convince an objective observer of that. The Analysis Report drafted by the Department of Anti-smuggling and Organized Crime Bureau laid the foundation of this fiction, which based its claims on a text published online, without presenting any other evidence.

The Prosecutor considers this political conspiracy theory that aims to discredit the agency of the protestors and the Gezi Protests as fact and uses this fiction to assign hidden meanings to certain phenomena and findings, contrary to the logic of an objective observer. 

You may have a personal tendency towards an explanation of a social phenomenon. You may even think that the discourse suggesting that the events surrounding Gezi were part of a plot to overthrow the government is reasonable. Although you may hold these personal views, it does not free you from the responsibility to analyze events and facts from the point of view of an objective observer. This, in fact, is a responsibility towards the public.

For the most obvious example of how the concrete facts are distorted by this conspiracy theory, one can look at an interpretation of the conversation I had with Memet Ali Alabora, included in the Opinion. I would like to examine this example - reserving our objection to the transcripts of the intercepted communication.

There is an allegation against me for I have asked Memet Ali Alabora: “Each time I see Europeans, they are asking how Gezi is going to change the political climate. Do you think we could gather a couple people and talk about it?” The allegation is such that “this conversation indicates that all protests were taking place as planned, with the ultimate goal to change the government through chaos and disorder like those we have observed in Arab countries.” It is not possible to reach the conclusions of the Prosecutor from this exchange. The question at hand is about the future and to suggest that it is explicative of the past goes against not only objectivity but also the rules of logic required for analysis. At the end of this conversation, Alabora states that he is not available and declines the invitation. If there were a plan to overthrow the government, could the implementor of the plan decline such a request from someone above him?

Unfortunately, almost all the conversations included in the indictment were subjected to such treatment: assigning or distorting meanings.

In their Dissenting Opinion, the President and the Vice-President of the Constitutional Court reported examples of evidence in my favor, where I state my hope for the transformatory energy created through Gezi to continue as a democratic pressure mechanism and my discontent with methods that attempt to corner the government through an economic crisis. These were discarded and not included in the assessment of the evidence.

Since no facts in the indictment have been established to have a direct relationship with the acts deemed a crime, the Prosecution in the Opinion concludes that “an overall analysis of the evidence” points at my culpability. An overall perspective of the evidence can only serve a subjective analysis. For an objective conclusion, details of facts and events need to be considered. Increasing the number of information and findings that do not qualify as evidence does not make them evidence.

During the previous hearing, I have stated how ignoring the ECtHR decision and legal findings that qualify as jurisprudence reflecting the norms of European Convention of Human Rights make the Court look like it is breaching the norms of the Convention and ultimately making it impossible for us to believe that the trial is fairly conducted.

The problem we are encountering is not just that the Court tries to postpone the implementation of ECtHR decision by putting procedural grounds forward and end the case by disregarding this decision.

The main problem is that the Prosecutor and the Members of the Panel are reluctant to evaluate the facts as an objective observer, and they do not regard the rule that no one shall be deprived of their liberty unless there is clearly demonstrated reasonable doubt as binding.

In order to understand whether a case is being tried fairly, we should be able to see that the fundamental legal norms are adhered to besides that the rules of procedure are complied.

Although I know it is too late, I invite the Court to treat events and facts not as imposed by political discourses, but as an objective observer.