Attorneys of Kavala: Courts disregard ECtHR, Council of Europe

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Attorneys of Osman Kavala, a businessperson and rights defender who has been arrested since October 2017, have released a statement after two court decisions against him.

On December 29, the Constitutional Court ruled that his right to personal liberty and security was not violated because of his imprisonment.

On January 22, an appeals court overturned the acquittal of Kavala and eight others in the case of the 2013 Gezi Park protests.

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"The İstanbul Court of Appeal overturned the verdict of acquittal and, in doing so, stated that cases in which people who are not related to one another and charged because of different acts should be heard together," said attorneys Köksal Bayraktar, Deniz Tolga Aytöre and İlkan Koyuncu.

"As a result, the groundwork has been laid for a new legal debate that will last for years and serve to keep political allegations on the agenda.

"The important point to be known here is that the Gezi file and the file containing the charge of 'violating the constitution' were examined by the European Court of Human Rights (ECtHR) and a decision of unfair arrest was given."

The ECtHR judgment was followed by three CoE Committee of Minister decisions inviting Turkey to abide by the European court ruling, the attorneys noted.

"When giving these decisions, the Committee of Minister stated that the allegations in the two files and as well as the 'espionage' charge in the case in which Kavala is still remanded in custody 'concerned the same allegations and actions' and the ongoing arrest of Osman Kavala is related to the 'continuation of a single file' of the same nature," says the statement.

The Constitutional Court ruling against Kavala came after the Committee of Minister decision, they noted. "Disregarding the right to live freely, which is guaranteed by the Constitution of the Republic of Turkey, with this decision given by eight to seven votes, is extremely worrying."

"While the ECtHR stated that three articles of the European Convention on Human Rights were violated with the arrest of Osman Kavala, it also mentioned that the arrest was intended to silence rights advocacy.

"The verdict given by the İstanbul Court of Appeals last week is a verdict that doesn't take into account the content of the ECtHR decision and that supports the concerns about political court rulings.

"As seen, the common point of all verdicts about Osman Kavala is that these verdicts were given despite the ECtHR and the Committee of Ministers decision and by 'disregarding' these institutions and decisions."

What happened?

Businessperson Osman Kavala, who was on his way back from Antep, was taken into custody at İstanbul Atatürk Airport on October 18, 2017.

On November 1, 2017, it was announced that Kavala was arrested on charges of "attempting to change the Constitutional order and to overthrow the government." In the official document referring him to court with a request of arrest, it was alleged that he was the head and financier of Gezi.

The sixth and final hearing of the lawsuit filed into Gezi resistance was held at the İstanbul 30th Heavy Penal Court in Silivri on February 18, 2020.

Announcing its ruling after the statements of defendants and their attorneys, the court board has ruled that Osman Kavala, Mücella Yapıcı, Can Atalay, Tayfun Kahraman, Ali Hakan Altınay, Yiğit Aksakoğlu, Yiğit Ali Ekmekçi, Çiğdem Mater Utku and Mine Özerden shall be acquitted as "there was no concrete and material evidence as to the committal of the offenses charged." The court has also ruled that businessperson and rights defender Osman Kavala, the only arrested defendant of the case, shall be released.

Osman Kavala was the only arrested defendant in the 16-defendant Gezi Trial, which started on June 24, 2019. Having been acquitted in this trial, Kavala was arrested again, this time on charge of "political or military espionage." Kavala is still held in Silivri Prison in İstanbul.

Announcing its ruling on Kavala on December 10, 2019, the ECtHR concluded that his rights were violated by his imprisonment.

The ECtHR concluded that the European Convention on Human Rights was violated on the grounds that Kavala was arrested without any reasonable suspicion and with political motives and that the Constitutional Court did not examine his application within a reasonable period of time.

This ruling became final on May 12, 2020. While this ruling has not yet been put into effect, the Committee of Ministers of the Council of Europe made a call to Turkey about the final ruling of the ECtHR and urged Turkey to implement the ECtHR's ruling of right violation and to release him.

On the other side, the Constitutional Court added Kavala's file to its agenda on September 29, 2020; however, it then postponed the session where the individual application of Osman Kavala would be discussed.

On the same day, it was announced that the indictment lodged by İstanbul Deputy Chief Public Prosecutor Hasan Yılmaz was presented to the İstanbul 36th Heavy Penal Court and accepted by the court.

The new indictment prepared against Osman Kavala charged him with "obtaining state information that needs to remain confidential for political and military espionage purposes" and "attempting to overthrow Constitutional order." The indictment also alleged that Prof. Henri Barkey, an academic and a former US diplomat, "plotted" the July 2016 coup attempt.

The first hearing of this trial was held on December 18 and the local court ruled for the continued imprisonment of Osman Kavala in its interim ruling.

(HA/VK)