Neither Just, nor Legal: The Case of Osman Kavala
It’s been more than four years since Osman Kavala’s detention. On October 18, 2017, the day he was taken into custody, we all thought that “they probably won’t arrest him” and on November 1, when he was arrested we said to each other “they probably won’t keep him for long.” Today, 10 December 2021, marks the 1501st day of Osman Kavala’s detention and exactly the second year since ECtHR has ruled it a human rights violation. The ECtHR gave its verdict two years ago on Human Rights Day.
Osman Kavala has long been a target due to his solidarity with the politicians, journalists and academics whom the government tries to silence; and his support for the nongovernmental organizations working in the field of human and civil rights; and the projects he carried out through Anadolu Kültür, which he founded with the aim of increasing the production and sharing of culture and art works, emphasizing cultural diversity and cultural rights, supporting local initiatives and strengthening regional and international collaborations; and for spearheading the projects that establish dialogue with Armenia and create spaces for the Kurdish language and culture. He was a target because what he did demonstrated that all these could still be done. He symbolized the belief that there could still be law in this country. And exactly for this reason, his detention and arrest signify the criminalization of all these civilian and democratic activities and the persons and institutions that partake in them. By arresting him, the government wants to browbeat everyone who claims their rights and particularly those who work in the field of civil society and culture and arts.
Following his detention Osman Kavala was accused of various crimes by Erdoğan himself as well as by media outlets close to him. It took 16 months for the official indictment to emerge. It seems that the ruling power could not decide how to frame him for a long while. In the end, he was accused of allegedly planning, financing and organizing the Gezi Park protests. A 657-page long indictment seeking an aggravated life imprisonment for 16 defendants including Kavala was accepted on March 4, 2019 by the Istanbul 30th High Criminal Court. The indictment was scandalous and did not make any attempt to establish a causal link between the alleged evidence cited and the heavy charges against him.
The first hearing took place on June 24, 2019, 18 months after his arrest. Six hearings were held between June 2019 and February 2020. All the hearings were like battles where the lawyers had to teach the basic principles of law and justice to a panel of judges and a public prosecutor. Throughout the process, the judiciary itself has been violating the laws at different levels, ranging from listening to a witness without the lawyers’ presence to not applying the verdict of the European Court of Human Rights.
The ECtHR announced its verdict on December 10, 2019 and demanded the immediate release of Osman Kavala. To delay the process the local court dismissed the decision by saying it should be finalized after the application to the Ministry of Justice and used this unlawful excuse in two hearings.
In the final hearing on February 18, 2020, the court ordered the acquittal of Osman Kavala and the other defendants. We were not expecting this verdict since all of the demands submitted by the lawyers were rejected by the panel of judges and the atmosphere was quite tense. We were shocked but at the same time extremely happy! Family, friends and colleagues of Osman, as well as a group of journalists, went off to wait for him at a recreational facility on the road to Silivri Prison; others waited in town for his return. After several hours, we learned that there was a new arrest warrant for Osman Kavala regarding the same investigation. The vehicle which was going to bring him to his loved ones went directly to Police Headquarters and the day after he was arrested again and sent back to Silivri. This was a total frustration. However, we were not so surprised as President Erdoğan targeted not only Osman Kavala and Gezi in the party group meeting but also the judges who acquitted him.
At the very beginning of his predicament, on November 1, 2017 Osman Kavala was arrested based on accusations of violating both article 312 (that is the use of force and violence, to abolish the government of the Republic of Turkey or to prevent it, in part or in full, from fulfilling its duties / Gezi) and article 309 (attempting to abolish, replace or prevent the implementation of, through force and violence, the constitutional order of the republic of Turkey / 15 July coup attempt). The judicial process concerning the article 312 is as summarized above. For the case on 309, he was given a release order in October 2019. Based on recent legal changes, which limit the maximum pretrial detention period to two years, they could not extend his imprisonment from 309 and released him again on March 20, 2020. Besides, the verdict of the ECtHR was covering both articles 309 and 312. So, in order to circumvent the national law and the verdict of the ECtHR, he had to be arrested once again on the basis of a new accusation, and this time with the more absurd charge of “espionage,” from article 328. Notably, Osman Kavala has never been questioned by a public prosecutor in connection to any of the allegations made against him.
Osman Kavala had to wait for another 7.5 months for the new indictment covering both articles 309 and 328. None of the charges in this indictment were based on any facts, evidence, or objective evaluation of any concrete criminal act. The indictment recycles unsubstantiated accusations, which previously circulated in the pro-government Turkish media, that Osman Kavala and Henri Barkey were involved in espionage and in the 2016 attempted military coup. The indictment provides no credible evidence linking them with any criminal activities.
A thorough reading of the whole indictment reveals that the intention of the Istanbul Deputy Public Prosecutor – who was appointed as Deputy Minister of Justice one week after the release of the indictment to the public – is to discredit civil society organizations and to present their work as dangerous and divisive. In the indictment Osman Kavala was accused of managing activities which trigger social disintegration by supposedly funding divisive projects directed at citizens, particularly those from Kurdish, Armenian, Greek, Christian, Jewish, Assyrian or Yezidi backgrounds.
The first hearing of this new case took place on December 18, 2020, and in his defense, Osman Kavala criticized the conspiracy theories surrounding his civil society engagements. The second hearing of this new case took place on February 5, 2021, and the court ruled the continuation of Osman Kavala’s detention and accepted the merging of two cases (Gezi and espionage). As there was not much to do with this absurd “espionage” accusation, the judiciary could continue with the Gezi case as the acquittal decision was sent back by the First Degree Appeals Court. It became obvious that the “espionage” case was used as a “bridge” just to be able to keep him in prison.
In the following hearing on May 21, the Court ruled that the detention of Kavala on the charges of “espionage” shall continue. The Court also requested the Gezi file regarding the Çarşı group be sent to the Court and returned upon review regarding the consideration of the merger of the case files. The next hearing of the trial was scheduled to be held in Çağlayan Courthouse on 6 August 2021.
Even though the next hearing by the Istanbul 30th High Criminal Court had been scheduled on 6 August, the Court scheduled a hearing on August 2 and decided by a majority of votes to merge the case with the ongoing case at the Istanbul 13th High Criminal Court and to continue the detention of Osman Kavala. The next hearing was on October 8. The case became much more complicated combining three separate lawsuits with 52 suspects. Combining lawsuits related to different acts is a convenient method to create a perception of conspiracy in political cases. The Çarşı law suit, which previously ended in acquittal, was reversed by the Court of Cassation, in order to keep Osman Kavala in detention. In his statement at the hearing on May 21, Osman Kavala says: “Charges against me keep altering … as if a baton handed over in a relay race, various judges and courts have been carrying over my arrest, refraining from dropping it to the ground.”
In the hearings of the combined Çarşı and Gezi trials held on October 8 and November 26, the court decided to continue the detention and the question “Where is the evidence of espionage?” that was asked persistently by the lawyers remained unanswered.
The European Court of Human Rights rejected Turkey’s objection to its decision on Osman Kavala on 12 May 2020. Therefore, the decision became effective, and Osman Kavala’s lawyers applied for their client’s release, stating that he was being kept in prison on the same grounds as in the ECtHR’s decision, which was deemed a violation. In the finalized ECtHR decision, it was stated that the fact used in the last arrest “does not constitute a reasonable doubt showing that he has committed a crime.”
Although Turkey constantly objected to this, claiming that “the applicant is kept in detention under article 328, not article 309 and 312,” the decision also included detention for the espionage charge, which in a situation where there was a violation of article 18, such maneuvers were of no value. Therefore, the Committee of Ministers of the Council of Europe, which is responsible for monitoring the implementation of the ECtHR decisions, has so far made seven decisions and two interim decisions for Turkey to immediately release Osman Kavala. The second interim decision taken at the meeting of 30 November – 2 December was that a “violation procedure” would be initiated against Turkey on the grounds that it did not comply with the ECtHR decision on Osman Kavala. Ankara has been granted a delay until 19 January to indicate how the ECtHR decision will be implemented. The next court hearing is on January 17.
Ten days after the hearing on 8 October, the ambassadors of ten countries, seven European Union members, including Germany and France, and the USA, Canada and New Zealand, in a joint statement called for Osman Kavala to be “released” and immediately prompted the government’s reaction followed by Erdoğan’s insulting expressions against Osman Kavala. Erdoğan had previously targeted him on various occasions, and those statements were among the reasons for the violation of Article 18 in the ECtHR decision. Osman Kavala stated that it was not possible to hold a fair trial under these circumstances and announced that he would no longer attend the hearings and would not make a defense.
On 29 December 2020, the Constitutional Court of Turkey ruled that Kavala’s detention does not violate his right to liberty and security guaranteed under the Article 19 of the Constitution by 8 to 7 votes. The President of the Constitutional Court as well as 6 Court justices clearly put forward that the charges and the detention are incompatible with our Constitution and the norms of ECtHR. Chief Justice Zühtü Arslan said: “Let alone the strong indication of the existence of a charge of political or military espionage on which the applicant was arrested, not even a simple suspicion could be presented.”
The story of Osman Kavala’s detention is a remarkable example of the politicization of the judiciary and its use for political purposes. It is an example of the attempts to create crimes according to the person who is sought to be punished. It clearly shows how conspiracy theories can be used instead of evidence, ignoring not only legal norms but also the rule of reason.
Despite all sorts of injustice and adversity against him, Osman Kavala never gives up on his kindness or prioritizes his own situation, but keeps on drawing attention to the importance of judicial independence and rule of law. Although he has been held hostage for exactly four years for baseless, unjust and absurd reasons, he continues to fight wholeheartedly for the ideas he believes in. Even from the prison, he stays engaged and works together with us and keeps on doing good deeds.
I truly wish that he will soon be free and this injustice will come to an end.
Asena Günal – Anadolu Kültür, executive director
This piece was originally published in Turkish here.