Statement by Osman Kavala’s Attorneys Regarding the Decision of the Committee of Ministers of the Council of Europe dated 2 February 2022
2 February 2022
Regarding Osman Kavala’s detention of more than four years, the public was mainly concerned with the non-execution of the judgment of the ECtHR and the resulting infringement proceedings initiated by the Council of Europe. However, the content and form of the judicial practices after the decision of acquittal issued in the Gezi Trial do not only constitute a failure to execute the judgment of the ECtHR, but also represent a series of violations that could not be ignored even if this judgment had not been issued.
On 18 February 2020, when he was acquitted in the Gezi Trial, Osman Kavala was taken into custody and re-arrested on the allegation of participating in the attempted coup of July 15, on which he had previously been tried and released.
28 months after the first detention order against him, he was arrested for the third time, this time on the charge of espionage, which was fabricated based on the same investigation file using the same evidence.
Even though the trials of Osman Kavala had previously been separated as it was ruled that there was no legal or actual relationship between the allegations of organizing the Gezi Park Event and supporting the attempted coup of July 15, they were later consolidated despite involving different charges. Then, these trials and the Çarşı Trial, which concerned different charges and different individuals, were consolidated.
Two bills of indictment were issued with serious allegations against Osman Kavala. Before issuing these bills of indictment, the Public Prosecutor's Office did not ask Kavala a single question about the allegations. Osman Kavala has never been interrogated by the Public Prosecutor at any stage.
Even though it was revealed that the allegations made against Osman Kavala in the first indictment regarding the Gezi Park events were made by public prosecutors and police officers who were tried for being members of FETO/PDY and that his phone was wiretapped by the same prosecutors and police officers, the second indictment included baseless statements by the public prosecutor that Osman Kavala was “found” to be in contact with the officers of FETO/PDY.
Despite the HTS records proving that there was no phone conversation between Osman Kavala and Henri Barkey, and the lack of information about any meeting between them, except for their random encounter at a restaurant, the allegation that Kavala was in intense cooperation with Barkey was presented as the main piece of evidence for the allegation of supporting the attempted coup of July 15 and the charge of espionage. The lack of concrete information about the contact between them was attributed to the assumption that Henri Barkey made special effort in this sense.
As there was no other evidence, the charge of espionage was fabricated without making any claims about the classified information that may constitute a state secret, how and from where it was obtained, to whom it was transferred, and for what purpose it was used, and therefore without complying with the definition of the charge of espionage in the law. This trial, which should have ended in a decision of acquittal, was prolonged by being consolidated with other trials, which laid the groundwork for the extension of the detention on this charge until other trials are finalized.
It is a deliberate and calculated act of misusing laws by separating them from their content in order to prolong the detention as a punishment and circumvent the judgment of the ECtHR. Therefore, it constitutes an unlawful exercise of public authority.
In Kavala’s application to the Constitutional Court regarding the last detention order, 7 members of the Constitutional Court, including the President and Deputy Presidents, who voted against the majority decision that the detention was not unlawful provided sound reasons for their dissenting votes.*
We strongly believe that these reasons shall also be confirmed by the ECtHR. Osman Kavala’s pre-trial detention for four years and three months is a disgrace to the judiciary. We hope that this will not happen again in our country.
Osman Kavala's Defence Counsels
*
“More importantly, there is neither any explanation regarding what state secrets the applicant has obtained, from whom he has obtained them, how and where he has obtained them nor can it be deduced from the investigation documents as to what secret information H.J.B., with whom the applicant is assumed to have “intensive contact”, has in his possession and how he has acquired it.” Zühtü Arslan
“In this case, if it has not been possible to demonstrate which confidential information constitutes the subject matter of the criminal offence in the detention order, then it should be concluded that there is absence of the material subject of the criminal offence… There is no mention of a state secret provided by the applicant in the charge laid against the applicant. Nor is it alleged that a concrete secret was delivered to the person [whom the applicant] allegedly had conversations (HJB)… Essentially, if the subject matter of the criminal offence does not exist, there is no need to investigate further.” Hasan Tahsin Gökcan
“The fact that the mobile phone of the applicant and that of H.J.B. intermittently transmitted via the same cell tower may not be considered as evidence of a strong suspicion of the offence of espionage… In the absence of detailed evidence, presenting the fact that the applicant’s phone transmits via the same cell tower as H.J.B.’s as a proof of the espionage charge may give rise to worrisome situations as regards human rights.” Engin Yıldırım
“The most important shortcoming in the detention order on espionage charges in respect of the strong indication of an offence, which is a prerequisite for detention, is that of acting upon an assumptive evaluation which has no basis whatsoever in any concrete information or documents about the content matter of a conversation or meeting between the applicant and H.J.B.” Hicabi Dursun - Yusuf Şevki Hakyemez
“No explanation is given as to which classified state information the applicant has allegedly acquired by means of NGOs or activities in civil society, what constitutes the element of "confidentiality", and what the origin of the confidentiality is… Such a claim may very well lead to the branding as espionage activities of similar work done by all other non-governmental organisations. Collecting information on sociological, economic, and political subjects and disclosing this information and findings to the public are among the basic goals and activities of non-governmental organisations.” Celal Mümtaz Akıncı