Presiding judge has spectators removed as defense lawyers exit courtroom in protest of court panel; trial adjourned until 18 February

The fifth hearing of the Gezi Park trial, where jailed businessperson Osman Kavala and 15 other civil society figures face aggravated life imprisonment on the charge of “attempting to overthrow the government,” took place on 28 January 2020 at the 30th High Criminal Court of Istanbul.

P24 monitored the hearing, held at a courtroom near the Silivri Prison in Istanbul.

This was the second public hearing after the European Court of Human Rights (ECtHR) ruled on 10 December 2019 that Kavala’s pre-trial detention was in violation of his right to liberty and security and his right to a speedy decision on the lawfulness of his detention, and that Turkey should secure his immediate release. Kavala has been in pre-trial detention as part of the case since November 2017.

In addition to Kavala, his co-defendants Mücella Yapıcı, Ali Hakan Altınay, Mine Özerden, Çiğdem Mater Utku, Can Atalay, Tayfun Kahraman, Yiğit Aksakoğlu ve Yiğit Ali Ekmekci were present in the courtroom as well as defense lawyers.

Early in the hearing, the presiding judge announced that the Justice Ministry had responded to the court’s inquiry about the ECtHR’s Osman Kavala judgment and that the ministry had informed the court that the judgment had not yet become final.

Lawyers request court panel’s recusal

Kavala’s lawyers then addressed the court in relation to the ministry’s response and the closed session held on 25 December, during which the third witness of the prosecution, a retired military officer named Murat Papuç, was heard. The court had cited “security reasons” as the grounds for the closed session, where the defendants and defense lawyers were not present. All defense lawyers asserted that the closed session was against the Criminal Procedure Code.

Kavala’s lawyer Köksal Bayraktar presented to the court a petition requesting the panel to be recused. “Hearing witness Papuç’s statement in-between public hearings and in the absence of the defense was in violation of the Code of Criminal Procedure” (CMK) Bayraktar said. 

Pointing out Article 58/3 of CMK, Bayraktar said that the court had not elaborated on why Papuç’s life was under threat and he asked why the prosecutor was there during Papuç’s testimony while the defense wasn’t. “The prosecutor and the defense are equal, your decision is in violation of the principle of equality,” Bayraktar said. He added that the witness statement could not be considered valid.

Yiğit Aksakoğlu’s lawyer Turgut Kazan said that Papuç had sent lawyers Aslı Kazan and Evren İşler invitations on LinkedIn. “The decision you have taken in consideration of the witness’s safety is beginning to pose a threat on the defense lawyers,” Kazan said before asking the court to file a criminal complaint against Papuç. Kazan also asked for Papuç to be re-heard before the defendants and lawyers in court.

Can Atalay’s lawyer Mehmet Durakoğlu said that Papuç was discharged after being diagnosed with borderline personality disorder and paranoid schizophrenia. “Your conduct, ever since this panel was especially formed for this case, has become intolerable for us and in terms of the code of procedure at this point.” He reiterated the request for the panel’s recusal.

Fikret İlkiz, representing Mücella Yapıcı, Can Atalay and Tayfun Kahraman, said the witness was inaccessible and that they did not trust the court.

Yiğit Ali Ekmekçi’s lawyer Hasan Fehmi Demir said the panel had violated articles 209 and 215 of CMK. The court granted many plaintiffs intervening party status even though they did not ask for it, Demir said, adding: “Mevlüt Saldoğan, the murderer of Ali İsmail Korkmaz, in the indictment, just because he was hurt by his own crime.”

The presiding judge Perk responded: “He asked to join because he was wounded by sticks and stones [thrown during the protests].”

Emel Korkmaz, the mother of Ali İsmail Korkmaz, who was beaten to death by police during the Gezi Park protests, asked if there was any proof of this claim. The presiding judge asked her to be quiet.

Lawyer Demir said that even though Papuç had changed his last name to “Eren,” according to the information obtained from the Counter Terrorism Unit, the court had transcribed his former last name “Papuç.” “Whether the person you heard gave you a false identity or you transcribed his name as Murat Papuç even though you knew it was supposed to be Eren, it doesn’t matter. Both are crimes. You have listened to a fake witness.” Rejecting the statement, Demir requested the recusation of the judge.

Referring to the presiding judge’s announcement that the Ministry of Justice had said that ECtHR’s Kavala judgment had not become final, Kavala’s lawyer İlkan Koyuncu said the ministry never said that and “for this reason alone” he said he was rejecting the panel.

Ayhan Erdoğan, representing Can Atalay, Tayfun Kahraman and the Korkmaz family, said that initially Mevlüt Saldoğan had gone to receive a medical report not because he was injured by sticks and stones but because his toenail was fractured by the force of his kicks directed at Ali İsmail. “That kick was a murder weapon. Mevlüt Saldoğan claimed to be victimized, and filed a complaint after the murder he committed cost him his job,” Erdoğan said.

Asking the court to not permit Mevlit Saldoğan to join the trial, Erdoğan said: “By accepting this request you are also defending public officials who have committed crimes during Gezi. For this reason I am rejecting your panel.” Erdoğan said that they had filed a complaint against the panel with the Council of Judges and Prosecutors (HSK). 

Özgür Karaduman, Can Atalay and Tayfun Kahraman’s lawyer, asked the panel: “Was the witness whose surname is uncertain asked to give his real identity before giving his statement?” “The indictment gives legitimacy to FETÖ [Fethullahist Terrorist Organization] security forces, prosecutors and judges,” Karaduman said.

The lawyer asked the court to hear Papuç in the presence of the accused and the defense lawyers.

Emel Ataktürk, Yiğit Ali Ekmekçi’s lawyer, said that in a petition Papuç submitted with the prosecutor’s office after testifying at the police station, he had said: “I have not complained against the mentioned people. I do not believe that these people were guided by foreigners to carry out this protest and that there were foreign powers behind it. Even though I asked for a copy of my statement at the Police Station, it was not given to me. I am an officer who was discharged from the Turkish Armed Forces due to my psychological state.” Ataktürk said that the statement Papuç gave at the station was added to the file while this petition wasn’t. “We think that his statement that was taken over four days at the police department was taken through force and threats and we want to hear the witness answer our questions face to face.” Atatktürk also demanded the panel’s recusal and for the court to revoke its ruling to grant Mevlüt Saldoğan intervenor status.

Mine Özerden’s lawyer Tuğçe Duygu Köksal asked the footage of witness Papuç giving his statement to be shown in court. Çiğdem Mater’s lawyer Hürrem Sönmez requested Papuç to be heard in court. İnanç Ekmekçi’s lawyer Aynur Yazgan Tuncel filed a complaint against Papuç for fabricating evidence. Memet Ali Alabora’s lawyer Kaan Karcılıoğlu reiterated his request to examine the communication records presented as evidence against his client. Ali Hakan Altınay’s lawyer Tora Pekin also requested the panel’s recusal for having lost his impartiality.

After the completion of statements by defense lawyers, Can Atalay addressed the court, asserting that the panel should recuse themselves from the case and requesting the court to revoke its previous interim ruling that granted police officers intervenor status in the case. Atalay added that the court should primarily focus on Kavala, the only jailed defendant in the case.

Lawyers exit courtroom in protest

Following a recess, the court rejected the requests for recusal on the grounds that the requests were not based on articles 23 and 24 of the Criminal Procedure Code, provisions that describe the conditions for recusal of judges.

In response to the court’s decision, Kavala’s lawyer Deniz Tolga Aytöre said they were leaving the courtroom in protest of the panel’s decision, which he said was in violation of the right to a fair trial. When a number of spectators applauded and chanted slogans in support of the lawyers, the presiding judge ordered the gendarmerie to remove the spectators from the courtroom and took a brief recess. When the judges returned to the bench a few minutes later, the presiding judge asked Kavala if he received a copy of the recording of Murat Papuç’s testimony. Kavala told the judge he would not be responding to the testimony because the witness was not heard in accordance with the Criminal Procedure Code.

CHP deputy Sezgin Tanrıkulu, who was among spectators, requested permission to address the court, but he was not allowed because he was unrelated to the case. Tanrıkulu then told the court that the hearing should not proceed in the absence of defendants’ lawyers. The presiding judge ordered that Tanrıkulu be removed from the courtroom on the grounds that he “persistently disrupted order in the courtroom.”

When the presiding judge asked Kavala’s statement in response to the witness testimony, Kavala said he would not be making a statement in the absence of his lawyers. Reiterating that the witness was not heard in accordance with due process, Kavala said he wanted to ask several questions to the witness in case he is heard in a public hearing.

Kavala then made his statement concerning his detention on remand: “The case file does not include any piece of information or evidence that supports the charges against me. All acts held against me in the indictment are acts that are safeguarded by the constitution. The indictment’s content fails to establish a link between me and the alleged crime. According to the Constitutional Court, depriving a person of their liberty without evidence is a serious violation. What is extraordinary in my situation is the fact that despite the European Court of Human Rights’ detailed account of the rights violated in my case, the violation has still not been remedied. The European Court’s judgment is legal, and this court will go down in history as an authority that refused to implement a ECtHR judgment.” Kavala requested to be immediately released.

Kavala’s co-defendants Yapıcı, Altınay, Özerden, Mater, Atalay, Kahraman, Aksakoğlu and Ekmekci told the court they would not be addressing the court in relation to the witness statement without their lawyers present.

The prosecution asked the court for a continuance to prepare their final opinion of the case and requested the continuation of Kavala’s detention on remand citing the evidence in the case file.

Aynur Tuncel Yazgan, the only defense lawyer who remained in the courtroom after the other lawyers left, told the court that the defense had requests for the expansion of the investigation and that the court had yet to issue a decision about these requests.

Following a 10-minute recess, the court issued an interim ruling, in which it ruled to send the case file to the prosecution for the preparation of their final opinion. The court rejected the requests for the expansion of the investigation on the grounds that it would “not contribute to the investigation” and those for the withdrawal of its previous interim ruling granting intervenor status to Mevlüt Saldoğan.

Citing “readily available evidence, strong suspicion of crime and detention being a proportionate measure” among reasons, and saying the European Court of Human Rights judgment was “still not finalized,” the court ruled for the continuation of Kavala’s detention on remand. The panel also referred to the Constitutional Court’s judgment in the application on behalf of Osman Kavala in its ruling.

The next hearing in the trial, where the prosecution is expected to present their final opinion of the case, will take place on 18 February.

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