Türkiye: Convictions of Osman Kavala & four others needs urgent international response

The prosecution of human rights defender Osman Kavala and four co-defendants in connection with mass protests a decade ago has been unfair and essentially a political show trial from the beginning, a group of nine non-governmental organisations including Amnesty International, said today ahead of an urgent debate at the Parliamentary Assembly of the Council of Europe, calling for Kavala’s release.

On September 28, 2013, Türkiye’s Court of Cassation, its top appeals court, upheld the convictions, notwithstanding that the European Court of Human Rights has previously found no basis for detention or trial, and ordered Kavala’s immediate release.

“By ignoring these judgments and Türkiye’s human rights obligations, the Court of Cassation is doubling down on the deep injustice of this case that dramatically demonstrates how far Türkiye has deviated from the rule of law,” said Helen Duffy of the Turkey Human Rights Litigation Support Project.
“The trial has not only led to grave violations of the rights of Kavala and the others, but it provided a chilling example of how Türkiye’s justice system has become a tool of political repression.”

Although President Recep Tayyip Erdogan and Turkish government officials repeatedly state that Turkish courts are independent, the trial of Kavala and his codefendants exposes those claims for the falsehood they are, and demonstrates how in key cases of interest to the president, prosecutors and courts blatantly do his bidding.

Kavala was sentenced to life in prison without parole, convicted of attempting to overthrow the government on false allegations that he organized and financed the 2013 Istanbul Gezi Park protests against a government urban development project. Four co-defendants – Çiğdem Mater, Can Atalay, Mine Özerden and Tayfun Kahraman – received 18-year sentences for allegedly aiding Kavala, while the court quashed the 18-year sentences of Mücella Yapıcı, Hakan Altınay and Yiğit Ekmekci, and ordered Yapıcı and Altınay’s release pending retrial.

“This trial cynically opened six years after the Gezi Park protests with the malevolent intent of casting them as the outcome of a grand conspiracy by one man, Osman Kavala,” said Hugh Williamson, Europe and Central Asia director at Human Rights Watch.

“To achieve this the prosecution and the courts blatantly had to ignore all the evidence of spontaneous mass protests in which the vast majority of protesters committed no violence and exercised their lawful rights to freedom of expression and assembly.”

The Court of Cassation’s 78-page verdict simply reiterates the prosecution’s allegations in the February 2019 indictment, though the European Court of Human Rights ruled twice that the indictment offered insufficient evidence to justify Kavala’s detention, prosecution or conviction, and by inference, the other defendants’.

Notably, in a striking rebuke to the European Court of Human Rights, Council of Europe, and Türkiye’s human rights obligations, the Cassation Court makes no reference to the repeated findings against Türkiye in this case. In December 2019, the European Court ordered Kavala’s immediate release, and in February 2022 the Committee of Ministers of the Council of Europe, the body responsible for overseeing implementation of European Court judgments, took the almost unprecedented step of triggering infringement proceedings against Türkiye for its refusal to comply.

This led to a second European Court judgment condemning Türkiye’s failure to carry out the first, and the failure of the Turkish court convicting Kavala and others on April 25, 2022 to recognize the European Court’s judgment. The Court of Cassation decision doubled down on that rejection of the European Court’s role, with no mention of that judgment.
Türkiye’s European and international allies, both unilaterally and through intergovernmental organizations, including the Council of Europe, the European Union and the United Nations, should address this injustice as a matter of urgency. They should treat the case as a priority human rights matter in their mutual relations with Türkiye, and push for the swift and full implementation of the European Court’s’ judgments, including for the defendants’ immediate release.

They should firmly condemn the abuse of criminal law against activists, human rights defenders, journalists and others in politically motivated cases. Robust efforts are essential to ensure that Türkiye respects and abides by its human rights obligations and rule of law principles, which are currently being flouted with impunity.

In turning a blind eye to the Strasbourg court’s rulings, the Court of Cassation is also ignoring its constitutional obligation to ensure that Türkiye adheres to binding decisions of the European Court,, which take precedence over rulings in Türkiye’s domestic courts.

“If the rule of law were at work here, the Court of Cassation would respect the European Court of Human Rights judgment ordering Kavala’s immediate release,” said Temur Shakirov, Europe and Central Asia Director (interim) at the International Commission of Jurists.

“Instead, and flying in the face of the evidence, the court has decided it is better to follow President Erdogan’s view, repeated in speech after speech, that Kavala is guilty.”
The court’s flawed reasoning

In its September 29 decision, the Court of Cassation relies on a chronology of events from the February 2019 indictment that the prosecution argues constituted the preparation for the Gezi protests. This included making a short video with a group of actors in 2011 called “Rise up Istanbul,” production of a play in Istanbul about a dictator, which ran from 2012-13, and the 2012 establishment of the civil society platform, Taksim Solidarity, focused on the highly contested plan to develop Taksim Square and Gezi Park. The court fails to show any causality between these lawful activities and any crime or to provide any evidence that these activities showed that Kavala and the other defendants were involved in a conspiracy.

The court decision makes reference to the protests and popular uprisings in various Middle Eastern countries that predated the Gezi protests and came to be known as the Arab Spring, and non-violent civil disobedience movements such as OTPOR in Serbia a decade earlier, without showing their relevance to the case.

The decision names civil society organizations and alleges they “supported and directed” the Gezi Park protests without providing any evidence. Chief among them is the Open Society Foundation, set up by the US financer and philanthropist George Soros, and its affiliated but independent (and now dissolved) philanthropic foundation in Türkiye (Açık Toplum Vakfı). Kavala was a founding member of the group, and Altınay served for a period well before the Gezi Park protests as director of the board.

The court repeats a conspiracy theory, informed by antisemitic tropes, from the original indictment that Soros’s organizations aimed to overthrow governments in various countries by encouraging uprisings, and that the Turkish Open Society Foundation and Kavala were involved in this process under the guise of innocent-looking philanthropic activities.
Kavala’s own civil society group, Anadolu Kültür A.Ş., which supports the arts, was also named. The other defendants were linked to Kavala through their participation in that organization: film producer Çiğdem Mater, employed as an advisor, Mine Özerden, a member of the board, and Yiğit Ekmekçi, deputy head of the board. Taksim Solidarity is named as the group in which three defendants – lawyer Can Atalay, city planner Tayfun Kahraman and architect Mücella Yapıcı – participated actively.

The Court of Cassation endorses the indictment’s inclusion of Kavala’s contacts with bodies such as the European Commission, members of the European Parliament, diplomats, diplomatic missions and international human rights groups, as evidence of alleged efforts to influence international opinion against the Turkish government.

#A section on the alleged protest financing cites the Open Society Foundation’s funding of the Turkish Open Society and Anadolu Kültür, but it omits that a formal investigation into the funding cited in the indictment (the MASAK report) found no evidence of unaccounted for money transfers. Instead, the court relies on examples drawn from wiretapped conversations, of Kavala once bringing people camped in the park a few bread rolls, talking about obtaining a plastic table for use in the park, and where to buy masks and goggles to protect from police tear gas.

The court decision also allows as admissible evidence a mass of random wiretapped conversations between the defendants and others that were illegally obtained. Far from revealing any criminal activity, the conversations show that the defendants were lawfully engaged in civil society organizations and non-violent activism, and were exercising their rights to free speech, association and assembly. Such activities are strictly protected under international law, including treaties to which Türkiye is a party such as the European Convention of Human Rights and the International Covenant on Civil and Political Rights, as well as in Türkiye’s own laws.

The decision rejects parliamentary immunity from prosecution for one of the defendants, Atalay, a lawyer and activist who won a seat in the May 2023 parliamentary elections on behalf of the Workers’ Party of Türkiye. The Court of Cassation decided that he was not protected by parliamentary immunity under article 83 of Türkiye’s Constitution in relation to this case confirming its own July 13 decision on the matter, and upheld his conviction. In reaching this conclusion, the Court of Cassation rejects the case law of the Constitutional Court, given under identical conditions, in judgments related to other jailed parliament members, Ömer Faruk Gergerlioğlu and Leyla Güven, which held that they do have immunity and that arresting, prosecuting, and detaining them constitute very serious violations of that immunity.

The urgent debate at the Parliamentary Assembly of the Council of Europe will take place on 12 October.

For Amnesty’s reaction to the Court of Cassation decision see – Türkiye: Upholding sentence against Osman Kavala and four other Gezi defendants a ‘devastating politically-motivated blow’ – Amnesty International

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