Statement by the Defense Counsels of Osman Kavala
09 October 2020
The Bill of Indictment that was issued by the Istanbul Chief Public Prosecutor's Office requesting penalty for Osman Kavala under Articles 309 and 328 of the Turkish Penal Code (TPC) has been admitted by the Istanbul 36th High Criminal Court, and a criminal case has been filed accordingly.
First of all, it should be underlined that the indictment in question does not contain the statutory elements listed under the Article 170 of the Code of Criminal Procedure (CCP), does not contain anything other than “hypothetical fictional narratives” that are not based on concrete evidence, and does not have any legal value. Moreover, the major deficiency of the indictment is the lack of “sufficient suspicion that the crime has been committed,” which constitutes an essential element required by the law.
The indictment, which could not even present any communication interception or physical surveillance report regarding the conversations that were allegedly held by Osman Kavala and that were built as the basis of all allegations, resorted to the Gezi Park File numbered 2015/74 of the Istanbul 30th High Criminal Court. It is alarming to see that the prosecutor has failed to fulfill his duty by almost tucking the existing decision of acquittal away, systematically shifting the focus to the indictment of the Gezi Park File rather than the decision of acquittal of the High Criminal Court, and concealing the judgments and evidence in favor of the defendant.
Furthermore, the indictment, which requested a penalty under Articles 309 and 328 of the TPC, is arbitrary and unlawful in its definition of crime as it fails to present the elements of those crimes.
In addition, as can be seen from the indictment, the only piece of evidence provided for those allegations is the “matching HTS (Historical Traffic Search) base station signals.” Another legal evidence in favor of the defendant was intentionally excluded from the indictment by ignoring not only national legal regulations in this regard, but also the unanimous and finalized judgment of the ECtHR, which stated that “HTS records and data indicating that the mobile phones were sending signals to the same base-station do not have evidential value.”
Another incomprehensible aspect is the admission of such an inadequate indictment by the Istanbul 36th High Criminal Court. It is because in Article 1 of the preliminary proceedings report that has been issued as of today, the High Criminal Court ruled that “the pre-trial detention of Osman Kavala pursuant to Article 309 of the TPC shall continue,” even though there is no decision of pre-trial detention issued against Osman Kavala pursuant to Article 309 of the TPC.
Respectfully submitted to the public attention.
Defense Counsels of Osman Kavala
Atty. Köksal Bayraktar
Atty. Deniz Tolga Aytöre
Atty. İlkan Koyuncu