ISTANBUL — After 819 days in pretrial detention, Turkish philanthropist Osman Kavala was sent back to prison Tuesday on terrorism charges despite a Dec. 10 ruling by the European Court of Human Rights calling for his immediate release.
The decision came after a tense court hearing in Silivri, in which about 50 defense lawyers staged a mass walkout in protest of the judges’ refusal to recuse themselves after allegations of legal misconduct.
Observers said the proceedings were evidence Turkish courts lacked independence and lengthy pretrial detentions continue to be used to punish human rights defenders, journalists and political dissidents.
“It’s shambolic. It’s farcical. It would be funny if it wasn’t this tragic,” Milena Buyum, a Turkey campaigner for Amnesty International, told Al-Monitor after attending the trial.
She added, “The charge he’s facing carries life imprisonment without parole and you’d expect the prosecution to be rigorous and to present evidence that sustains that allegation and they have failed to do so in the indictment and they have failed to do so in all the hearings.”
During the fifth hearing of the Gezi trial, in which Kavala and 15 other defendants are accused of funding and organizing protests to overthrow the government in 2013, a panel of judges ruled to continue Kavala’s detention for the second time since the ECHR ruled doing so was in violation of Articles 5/1, 5/4 and Article 18 of the European Convention on Human Rights. The next hearing was scheduled for Feb. 18.
Prior to the hearing, Kavala released a statement saying the court was resisting the Dec. 10 ruling. It read, “Under these circumstances, it is not possible for the defendants to place confidence in that the trial process is carried out according to the ECHR norms.”
He added the judges’ behavior “is suggestive of serving to cover the unlawfulness of the long detention.”
The Turkish Ministry of Justice did not respond to requests for comment.
In court proceedings that took place as the United Nations began its annual review of Turkey’s human rights record, defense lawyers criticized the panel of judges for taking the testimony of a key witness, Murat Papuc, without the presence of the defense team in what they claimed was a violation of legal conduct.
Papuc submitted a statement that was read at the hearing, claiming he was given gas masks to distribute at a venue affiliated with Kavala during the 2013 Gezi protests.
"You received the testimony of a person of doubtful mental health in secret, while we, the defense, were absent,” said Mehmet Durakoglu, president of the Istanbul Bar Association and a lawyer representing defendant Can Atalay. “We won’t accept such a disgrace in the history of our bar association."
Atalay echoed the statements, saying, "I am worried that your panel is being tricked here, if you excuse the expression. A rejection of your panel is not enough; you must withdraw."
The panel of judges rejected repeated requests by defense lawyers that three of them recuse themselves from the trial over the Papuc testimony. In response to the rejection, the defense lawyers walked out of the courtroom, drawing applause from some of the observers in attendance. The judges then requested those observers leave the courtroom as well.
Kavala was then asked to respond to accusations in Papuc’s testimony. He declined to make statements in absence of his legal team, before reiterating that the ECHR ruling was valid and that he should be released from pretrial detention.
Sezgin Tanrikulu, a member of parliament with the main opposition Republican People's Party (CHP), protested the questioning of Kavala without his lawyer.
"You cannot hear a defendant without his lawyers. You cannot continue the hearing in this manner," Tanrikulu said before he too was removed from the courtroom on the judges’ orders.
The prosecution maintained the ECHR judgment was not final, citing a three-month grace period in which the Turkish Ministry of Justice can refer the Dec. 10 ruling to the Grand Chamber of the European Court.
If no action is taken before March 10, it might suggest the Ministry will not challenge the ruling, Buyum noted, adding the course the Turkish judiciary will take remains unclear. Still, Buyum said this should not impact lower court decisions.
“The referral to the Grand Chamber is done by the executive, by the Ministry of Justice,” Buyum told Al-Monitor. “The court is an independent court and doesn’t have to wait for that. They can implement a ruling without having to refer to the executive if there is a separation of powers.”
Buyum said the court proceedings were comparable to those regarding the ongoing trial of Selahattin Demirtas, the imprisoned former co-chair of the pro-Kurdish People's Democratic Party. The ECHR also ruled for Demirtas’ immediate release in 2018. His case was then sent to the Grand Chamber, and Demirtas was later placed in detention on a separate case while still in prison.
In the Gezi trial, Kavala is the only defendant that remains behind bars. The other 15 defendants include Can Dundar, Mucella Yapici, Memet Ali Alabora, Ali Hakan Altinay, Ayse Pinar Alabora, Cigdem Mater Utku, Gokce Tuyluoglu, Meltem Arikan, Hanzade Hikmet Germiyanoglu, Inanc Ekmekci, Mine Ozerden, Can Atalay, Tayfun Kahraman and Yigit Ali Ekmekci.
Kavala was originally detained Oct. 18, 2017, at Istanbul's Ataturk Airport and was arrested on Nov. 1, 2017. A 657-page indictment was issued on Feb. 20, 2019, and the Gezi trial began June 24 last year. Human rights observers have repeatedly stated that no credible evidence has been presented linking the defendants in the Gezi trials to the charges lodged against them.
Reflecting on the court proceedings Tuesday, Nate Schenkkan, director for special research at Freedom House, told Al-Monitor, “It’s another piece of evidence that the judiciary is not independent. It is not able to take decisions on important cases even when the legal case is obvious.”
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