October 12, 2020
On October 8, 2020, the bill of indictment against Osman Kavala, who was detained on October 18, 2017 and arrested on November 1, 2017 after 14 days of detainment, was issued. On October 12, 2020, an online press conference held regarding the said indictment where Osman Kavala’s wife, Prof. Ayşe Buğra, and Kavala’s defense counsels, Deniz Tolga Aytöre and Köksal Bayraktar, made a statement and answered the questions of journalists. Below is the translation of the excerpts from the said statements.
Atty. TOLGA AYTÖRE
When Osman Kavala was detained on November 1, 2017, there was only one file prepared against him, yet the file contained two charges. One of these charges was the violation of the Article 309 of the Turkish Penal Code (TPC), and the other was the violation of the Article 312. Only one order of pre-trial detention was given on the basis of these two articles. As the proceedings progressed, the prosecutor’s office split the file into two.
Thus, it split the order of pre-trial detention. All of a sudden, without any interrogation undertaken by a judge, there were two orders of pre-trial detention against Kavala.
Then we started to wait for a bill of indictment to be issued, on the basis of the Article 312, which is also known as the Gezi Park case. After the bill of indictment was issued, the order of pre-trial detention given on the basis of Article 309 was revoked on 11 October 2019 within the scope of the Judicial Reform.
In the meantime, our ECtHR application was concluded on 10 December 2019. The judgment stated that Osman Kavala was placed in pre-trial detention on ulterior motives without any reasonable suspicion, that there has been a violation of rights, and that he must be released immediately. More importantly, the judgment covered both the Article 309 and the Article 312.
Has this judgment been enforced? No, it has not been.
As our legal struggle continued, on 18 February 2020, all the defendants of the Gezi Park Case were acquitted. All of them were released, but one: Osman Kavala.
As Osman Kavala prepared to go home, as he packed his belongings, he was taken to the police headquarters on Vatan Avenue instead of his home. There the police officers told him that this time he was detained on another charge.
When we investigated the situation, they told us that he was detained on the alleged violation of the Article 309, on which an ex-officio order of release was issued on 11 October 2019. We thought that there was a mistake, because he was released ex-officio by the prosecutor’s office pending trial.
On 9 March 2020, another order of pre-trial detention was issued against Osman Kavala. This order was based on the allegation of “obtaining government information that must be kept confidential, with the purpose of spying on political and military affairs” (Article 328 of the TPC), also known as the espionage charge.
The order of release given on 18 February, the order of pre-trial detention given on the same day on the basis of the Article 309, and a new espionage charge brought on 9 March... As we were trying to figure out why all of this happened, an order of release was given on 20 March on the basis of the alleged violation of the Article 309, which previously prevented Osman Kavala from being released.
Since they made a mess of everything, we have no option but to talk about all of this. On 29 September, the Constitutional Court was going to discuss the judgment of the ECtHR. Once again, we got our hopes up. Then, we found out that a bill of indictment was issued on the grounds of the Article 328 on the day of the meeting. Thus, the meeting of the Constitutional Court was postponed.
This is the legal process that we have been through so far. We are unable to explain what happened within the legal framework. These proceedings are a fight against the law to prolong Osman Kavala’s detention.
Moreover, the issued bill of indictment violates the CCP, because in order for a bill of indictment to bring charges, it needs to present sufficient suspicion. And, in our opinion, it does not exist here. Similarly, the suspicion needs to be linked to material evidence, and the bill of indictment fails to establish such a link. Therefore, the bill of indictment does not have any legal value since it does not contain the necessary legal elements.
When we examined the bill of indictment, we have seen many inconsistencies. The bill of indictment refers to an assumed act of espionage. Frankly, we think that the Turkish legal system does not deserve such frivolity. If you charge someone with treason, you have to present evidence instead of simply assuming, implying, or writing fictional stories.
The Gezi Park file is used as a reference in the bill of indictment. Almost half of the indictment was replicated from the Gezi Park file, even though all the defendants, including Osman Kavala, were acquitted in that case. It turns out Osman Kavala’s acquittal is the only information that was missed out from the Gezi Park file.
The prosecution is obliged to collect evidence both in favor and against the defendant; however, no evidence in favor of the defendant has been collected. Even the acquittal decision was not included in the bill of indictment. As lawyers, we thought, “They probably have no other evidence.”
It is a highly dangerous approach to resort to the bill of indictment of the case by leaving the acquittal decision aside and ignoring the reasoning.
It is because the Gezi Park verdict define the evidence in the bill of indictment as “unlawfully-obtained evidence.” Therefore, the bill of indictment issued today requests the second trial of Osman Kavala based on evidence that has been obtained unlawfully.
When you put the Gezi Park file and the newly-issued bill of indictment side by side, you see not only unlawfulness, but also irrationality.
Atty. KÖKSAL BAYRAKTAR
Bayraktar, who said, “We are still witnessing the violation of judicial independence”, reminding that the acquittal decision issued by the Istanbul 30th High Criminal Court is heard in the court of appeal added:
If the court of appeal hears the case, it means that the case ended with an acquittal and is still under the supervision of the Regional Court of Justice.
The prosecution is filing the same lawsuit without presenting any new evidence, even though the previous case has not yet been concluded. Therefore, another principle of law is being violated. In law, a person may only be tried once for an act. Kavala is going to be tried a second time for the same act.
If you try someone with the same accusations on which an acquittal decision was issued, you will make a legal mistake. They say, ‘No, there is no mistake. He is being tried on the basis of another article this time.’ If so, you will be disregarding another important concept in law: actual aggregation. In case an act violates more than one article, the person shall be punished for the most severe violation. The prosecution brings up Articles 309 and 328 of the TPC. They previously brought up Article 312 as well. The violation of all of them requires the same punishment: aggravated life imprisonment.
What they do is to look at an act from one angle and claim that it violates Article 312 of the TPC and then to look at it from another angle and claim that it violates Article 309 of the TPC this time. Then, they also bring up Article 328. This is wrong and unlawful.
Reminding the “judgment finding a violation” issued by the ECtHR on December 2019 regarding Osman Kavala, Bayraktar added:
The ECtHR used an exceptional language in this judgment and ordered the immediate release of Osman Kavala. It stated that he was detained on ulterior motive. The word ‘immediate’ is critical here, because the ECtHR ruled that it is not right that Kavala stays in prison on ulterior motive.
After the ECtHR’s judgment, Turkish judicial bodies said that they had the right to file an appeal against this judgment within 3 months. During this process, the Istanbul 30th High Criminal Court issued an acquittal decision. The Turkish government filed an appeal against the judgment of the ECtHR. The ECtHR dismissed this appeal.
Unfortunately, right after the acquittal decision, another order of pre-trial detention was issued against Osman Kavala.
While Osman Kavala’s detention continued, the Committee of the Ministers of the Council of Europe made an important statement in early September, warned Turkey, and stated that the Constitutional Court must take action to release Osman Kavala. Unfortunately, Turkey did not enforce this decision either. As the decision was not enforced, the Committee of the Ministers said, ‘release Osman Kavala immediately,’ in October. Stating that it will review the issue in December, the ECtHR announced that it will notify the Secretariat of the Council of Europe in the event that Osman Kavala is not released. This means that in the event that Osman Kavala is not released, there will be political consequences.
All of this indicates that from a legal point of view, it is an extremely wrong decision not to release Kavala. We face such errors and chains of mistakes in this bill of indictment.
Prof. AYŞE BUĞRA
As many of those who have been following the case know, my husband, Osman Kavala, has been deprived of his freedom since 17 October 2017. During this period, he was charged on three offences under three different articles of the criminal code. He was acquitted of one of these charges. For the second charge, he was released pending trial, then re-arrested and then released again. Now we encounter this second charge in the bill of indictment issued last Thursday which now includes a third charge: espionage.
I would like everyone to read this latest bill of indictment to understand the nature of the situation we are facing. Since it is a 64-page text, it may seem difficult to read, but it is not that difficult. It includes extensive political analyses and there are many repetitions in the text; those who read it would be able to assess whether it contains any information or documents that may constitute a basis for reasonable doubt. They would be able to assess whether it is possible to issue such a bill of indictment in a State under the rule of law.
You can imagine what we have gone through during this process. However, I would like you to consider, once more, what all of this means to my husband and our family. I would like you to imagine how we were affected by the continuation of his detention after the ruling of the European Court of Human Rights (ECtHR) that found the detention unlawful and ordered his immediate release. I would like you to think what it must be like for a person in prison to prepare his luggage to go home on the day of his acquittal, to actually leave for home, only to be stopped on the way, detained again, and taken back to the prison. I would like you to imagine what it was like to hear that our application to the Constitutional Court regarding his unlawful detention is scheduled to be discussed on a particular day and learn, on that very day, that the discussion is postponed. I would also like you to remember that the meeting of the Constitutional Court and postponement of the discussion on his case coincided with the second meeting of the Committee of Ministers of the Council of Europe where the steps to be taken in the event that the decision of the ECtHR is not enforced are discussed. And I would like you to consider what the allegation of espionage means to a person and his family and how it affects us.
I know that there are many problems with the functioning of the judicial system in Turkey which are discussed every day and that we are not the only ones who are faced with injustice. However, what happened to my husband, who has been under arrest for three years while a suitable offence was being sought to keep him in prison, has made his case a special one which attracts the attention of many people in Turkey and abroad. In this particular situation, unfortunately, it is hard to believe that what we observe is the normal functioning of an independent judicial process. I now think that what my husband, myself and his 94-year-old mother have gone through could well be described as torture. At the same time, I often remember the very well-known Turkish statement “Justice is the foundation of the state”.
In this situation, as a citizen of this country, I feel the need to address not only the press and public opinion, but also the members of parliament who represent us in the Grand National Assembly of Turkey. I would like to address the members of parliament affiliated with all political parties, especially the members of the Justice and Development Party, not to ask for mercy, but to demand justice, justice which is the foundation of the state. But I also wish to appeal to the sentiments of empathy, which I think are important for those who wish to pursue political activity for the benefit of the people. I believe that my situation and the situation of my husband’s mother, who now thinks that she will never be able to see her son again, should be of concern for all members of the parliament and all those engaged in politics, especially female politicians.
It is very difficult for me to talk about this incredibly painful process. It is very difficult especially because I have now begun to think that while we talk about universal legal norms and existing laws, there is no one left trying to explain us that our situation is in conformity with these norms and laws. I have begun to think that no one even feels the need to lie to us anymore.
Thank you for participating and listening to us.