Tue, 23 Apr 2019

Turkey: Baseless Charges Over Landmark 2013 Protests

Human Rights Watch
25 Mar 2019, 16:12 GMT+10

(Brussels) - An indictment accusing the civic leader Osman Kavala and 15 others of financing and organizing mass protests in Turkey in 2013 in an attempt to overthrow the government provides no credible evidence of criminal activity, Human Rights Watch said today. The May-June 2013 Gezi Park demonstrations and sit-in, in Istanbul's Taksim Square, led hundreds of thousands of people to exercise their right to peaceful protest in cities throughout Turkey.

The defendants face a possible sentence of life in prison without parole for the main charge of "attempting to overthrow the government wholly or partially preventing its functioning." The prosecutor also accuses the defendants of responsibility for crimes allegedly committed by protesters across Turkey during the protests. The protests began over the government's redevelopment plans of Gezi park, one of the few remaining green spaces in central Istanbul. Their trial begins in Istanbul on June 24, 2019.

"A thorough examination of the indictment against Osman Kavala and the 15 others reinforces concerns that a politically motivated smear campaign advanced at the highest level of the Turkish government has become the basis for a criminal prosecution," said Hugh Williamson, Europe and Central Asia director at Human Rights Watch. "Since there is absolutely no evidence in this indictment that Kavala and the others planned the Gezi protests, let alone conspired to foment an illegal uprising, the manifestly ill-founded charges against them should be dropped."

On March 4, an Istanbul court accepted the 657-page indictment, which rewrites the Gezi park protests as a conspiracy designed to overthrow the government. The indictment lists the main "victims" as President Recep Tayyip Erdoan, who was prime minister at the time, his entire cabinet at the time, and 746 other named complainants without explaining who they are.

Kavala has been in pretrial detention in Silivri prison since November 1, 2017. Another defendant Yiit Aksakolu has been in pretrial detention in the same prison since November 17, 2018. The other defendants are at liberty, six of them not in Turkey.

The evidence presented in the indictment consists of hundreds of intercepted telephone calls from Kavala and the other defendants during and after the Gezi protests, extensive details of years of their foreign travel, social media postings, and surveillance camera photographs of Kavala meeting various people.

The indictment also alleges that the philanthropist George Soros was behind a conspiracy led by Kavala to plan an uprising against the government through the Gezi protests. Soros is the founder and chair of the Open Society Foundations network, which had a locally affiliated, but independent, foundation in Turkey. Gkce (Ylmaz) Tylolu, executive director of the Open Society Foundation in Turkey, which has ceased operations, is among the defendants. The indictment also cites reports from the Financial Crimes Investigative Board (MASAK) examining the financial transactions of the Open Society Foundation (Ack Toplum Vakf) in Turkey and of civic group Anadolu Kltr A.., which Kavala heads.

Human Rights Watch analyzed the indictment and found an acute lack of specificity to the allegations it contains. The prosecutor has made no serious attempt to discover a causal link between the alleged evidence cited against the defendants and the charges against them. For example, the indictment presents no evidence that the defendants incited the use of force and violence in an attempt to overthrow the government, or indeed that they committed any other criminal activities. Likewise, the indictment presents no evidence that the defendants knew of any plan to foment an uprising or overthrow the government or that they were part of such an attempt.

The case bears the hallmarks of a politically motivated effort to turn into a criminal prosecution completely unsubstantiated claims previously advanced in a police report and at the highest levels of government. As such, the charges against Kavala and the 15 others are not only manifestly ill-founded, but also an effort by government authorities to usurp the judicial system for political purposes.

Article 18 of the European Convention on Human Rights, which has the object and purpose of prohibiting such misuse of power, bans restrictions on rights and freedoms "for any purpose other than those for which they have been prescribed." The European Court of Human Rights has made clear that violations of Article 18 are particularly grave because of the fundamental threat to democracy implicit in such abuse. Human Rights Watch believes that the analysis of the indictment and circumstances in which it is being pursued indicate the authorities' actions, including the detention of Kavala and Aksakolu, are driven by improper reasons in violation of Article 18. The actual purpose of the prosecution is to silence and punish the defendants for their civic activities and exercise of their protected rights and to prevent them from continuing to exercise those rights.

The Istanbul prosecutor should request Kavala and Aksakolu's release and that the charges be dropped against them and the 14 other people indicted in this case. UN human rights mechanisms and Turkey's international partners, such as the European Union, should continue to raise their concerns about Kavala's and Aksakolu's unjustified detention and urge the Turkish authorities to free them and end their crackdown on civil society. They should also press Turkey to release all other journalists, politicians, and human rights defenders against whom the authorities have not provided evidence of internationally recognizable crimes. On March 15, the indictment against Kavala and the 15 was raised at an EU-Turkey Association Council meeting at which top EU officials Federica Mogherini and Johannes Hahn met with Turkish Foreign Minister Mevlut avuolu. The EU said after the meeting in a statement that the EU "deplored the increasing pressure placed on civil society, as demonstrated by the indictment of 16 prominent activists [in] late February and stated its concerns over the rapidly shrinking space for civil society.

"The accusations against Kavala and others cannot reasonably form the basis of a criminal prosecution in a democratic society that claims to adhere to the rule of law," Williamson said. "Kavala and Aksakolu are being arbitrarily deprived of their liberty and should be freed immediately."

Osman Kavala's lawyers informed Human Rights Watch that on March 21, 2019, they learned the authorities are seeking to justify Kavala's detention also on the basis of an ongoing investigation against him related to the July 15, 2016 failed coup attempt. Human Rights Watch learned of this separate criminal investigation as an additional effort to keep Kavala behind bars, shortly before publication. When Kavala was arrested on November 1, 2017, the court had cited as ground for his detention, alongside his alleged involvement in the Gezi protests, Kavala's alleged "unnaturally close contact" with foreigners whom the court claimed were "among the organizers of the [July 15] coup".

For details of the Human Rights Watch analysis of the indictment, please see below.

The Gezi Protests Indictment

Nearly 17 months after the police detained Osman Kavala, a businessman, founder of the non-governmental group Anadolu Kltr A.., and a leading figure in Turkey's civil society, the Istanbul prosecutor's office has indicted him and 15 others. The main charge is "attempting to overthrow the government or partially or wholly preventing its functions" (article 312 of Turkey's criminal code). The possible sentence for all defendants if found guilty is life in prison without parole, since they are charged with one of the most serious offenses in Turkey's criminal code.

In addition to the main charge against them, the prosecutor holds the defendants responsible for crimes allegedly committed by protesters across Turkey during the Gezi protests. The defendants face additional charges of damaging public property; damaging a place of worship or cemetery; unlawful possession of dangerous substances; unlawful possession of weapons; looting; and serious injury.

The others facing trial are: Yiit Aksakolu, the Turkey representative of the Bernard van Leer Foundation, a Dutch philanthropic organization focusing on early child development projects; Can Dndar, journalist and former editor of Cumhuriyet newspaper, now in Germany; Mcella Yapc, board member of the Istanbul Chamber of Architects; Memet Ali Alabora, actor and director; Ali Hakan Altnay, director of the European School of Politics, Istanbul; Aye Pnar Alabora, an actor; idem Mater Utku, a film producer; Gkce (Ylmaz) Tylolu, executive director the Open Society Foundation in Turkey; Handan Meltem Arkan, a novelist and playwright; Hanzade Hikmet Germiyanolu, a humanitarian worker and education consultant; nanc Ekmekci; Mine zerden, a civil society and arts project coordinator; Can Atalay, a lawyer; Tayfun Kahraman, an urban planner; and Yiit Ali Ekmekci; deputy chair of Anadolu Kltr.

Kavala and Aksakolu have been held in pretrial detention in Silivri prison since November 1, 2017 and November 17, 2018 respectively.

2013 Gezi Protests and the Courts

The Turkish authorities' handling of the Gezi protests was widely condemned around the world. International media broadcast scenes of teargas clouds hanging over Taksim Square as police repeatedly used excessive force to disperse overwhelmingly peaceful demonstrators and a fortnight later forcibly ended the sit-in. Five protesters and a police officer were killed in various cities and multiple protesters sustained injuries from being shot in the head with teargas canisters, incidents that were well-documented at the time by international and local human rights groups. The Gezi protests lasted just a few weeks, but hundreds of thousands of people across Turkey took part.

After the protests, only a handful of criminal and disciplinary investigations into the police for excessive use of force and for the deaths and injuries were opened. The main trials against demonstrators for organizing and/or for being involved in the Gezi protests ended in acquittal.

The December 2015 acquittal of 35 defendants linked to Beikta football supporter group, ar, was notable. They had been charged with attempting a coup for conducting a protest march outside then-Prime Minister Erdoan's Beikta office. People connected with Taksim Solidarity, a platform of groups which met and organized during the Gezi protests, were also acquitted in May 2015, on the grounds that the right to peaceful assembly was protected in the European Convention on Human Rights.

Gezi Rewritten as a Grand Conspiracy

Nearly six years after the Gezi protests, the Istanbul prosecutor has ignored the courts' findings in these cases and persisted in presenting an indictment against Kavala and others that claims to find concrete evidence of a grand conspiracy behind the protests. The prosecutor, drawing on smear campaigns running in the pro-government media since October 2017, alleges that Kavala and a small group of people indicted with him financed and organized Gezi.

Two clear aspects about the prosecutor's approach stand out, both resting on political conspiracy theories promoted by the government rather than on well-grounded legal argument. The indictment reflects the discourse in pro-government media and in speeches by Turkish politicians in which the Gezi protests are reframed not as a largely spontaneous wave of anti-government protests, but as the outcome of a planned and intentional conspiracy to unseat the government. The prosecutor also bases his indictment on an assumption that the protests were the result of foreign intervention aimed at destabilizing Turkey and bringing down its democratically elected leaders led by the US-based philanthropist George Soros, who is founder and chair of the Open Society Foundations network.

Unsubstantiated assertions about a role by Soros in the Gezi protests have circulated at various times since 2013 in Turkish media known to be close to Erdogan and his government. During the Gezi protests, the then-mayor of Ankara, Melih Gkcek, first publicly claimed in a television interview that Soros had a role in Gezi, also accusing a Serbian activist group and Memet Ali Alabora, an actor who is now a defendant in the trial.

Media reported in November 2014 that a June 14, 2013 police report had made similar claims, including that Kavala had financed the Gezi protests, prompting an Istanbul prosecutor on June 20, 2013 to seek a court order to intercept communications and obtain phone records of individuals, including Kavala and Alabora. Such reports about the role of Soros in particular continued to surface in the media from time to time in subsequent years, but no claims to that effect were included in the various Gezi trials that resulted in the acquittal of most defendants.

Occasional media reports comparing Kavala and Soros are older, and the prosecutor's indictment alludes to a 2005 article. This line of argument draws on Kavala's inherited business interests and his role as a founding member of the small, Soros-linked Open Society Foundation (Ack Toplum Vakf) in Turkey in 2001. The organization was set up as a representative office, then in 2009 became a national foundation. It was fully audited and monitored by the Interior Ministry and the General Directorate of Foundations, and provided grants to civic projects and non-governmental groups.

When the police detained Kavala in October 2017, Erdoan called him the "Soros of Turkey" and alleged that he was behind the Gezi protests. A court subsequently ruled that Kavala should be held in pretrial detention. In October 2018, when it emerged that the investigation into Kavala was being widened, Erdogan repeated similar claims, saying that, "The person who financed terrorists during the Gezi incidents is currently in prison," and that the "Hungarian Jew Soros ... assigned to divide nations and shatter them" was behind Kavala. After this anti-Semitic speech, the Open Society Foundation in Turkey decided to cease its work in the country and to apply to a court to dissolve the foundation.

While Soros is represented as the actual mastermind of the Gezi "uprising," he is not included as a suspect in the case. The indictment contains no evidence of financial support to organize the Gezi protests. The defendants include Gkce (Ylmaz) Tylolu, executive director of the Open Society Foundation in Turkey, which has ceased operations

Content of the Indictment

The 657-page indictment has three parts.

The prosecutor's 68-page introduction lays out the central "thesis" that the Gezi protests were "an uprising movement," ("kalkma haraketi," p. 23), that "no element of the actions was accidental, and that it was a very clear and definite operation with foreign support to bring the Republic of Turkey's state to its knees." The prosecutor states that behind the "innocent" seeming protests was a "real aim of creating a climate of chaos and conflict and thus aiming to overthrow the government of the Republic of Turkey or prevent it from functioning and creating an armed uprising against the government of the Republic of Turkey."

The prosecutor's introduction then attempts to explain the Gezi protests with reference to the Arab Spring and the Occupy movement in the US, and to link it with the much earlier activities of civil disobedience group OTPOR in Serbia, which had protested peacefully against Slobodan Milosevic's government in the period before he left office in 2000. The introduction also refers to the influence of Soros and his Open Society Foundations on political movements in countries where former Soviet strongmen were replaced (the so-called color revolutions in Ukraine and Georgia). The prosecutor includes a chronology of the Gezi protests citing similarities to the protests in other countries.

Assembling the grand narrative of a planned coup attempt, the prosecutor concludes that there were three main influences on the Gezi protests: the OTPOR tactics; strategies listed in a 1993 civil disobedience manual by the US non-violent resistance activist and academic Gene Sharp; and Soros Open Society financial backing. The claim that OTPOR influenced the Gezi protests was first mentioned during the Gezi protests in a June 6, 2013 news report by Trkiye daily newspaper and also suggested at the time by Gkcek, the former Ankara mayor.

The indictment uses the Arab Spring, OTPOR actions, and the Occupy movement to establish a historical context for Gezi. However, this continuum and set of influences is finally much less important than the prosecutor's assertion that every aspect of the Gezi protests was organized and executed according to a master plan linked to Kavala, Alabora, and the other defendants in the case.

The introduction's conclusion contends that the conspiracy behind Gezi had no democratic impulse but instead was an attempt to overthrow the Turkish government with tactics similar to those used to unseat Muhammad Morsi, the democratically elected president of Egypt. While hypocritical Western countries have been quick to put down demonstrations in their own countries with heavy police intervention, the prosecutor says, when such incidents occur in Muslim countries it is "evident" that the US and West are intent on "strengthening them" for their own political aims and interests (p. 90). Thus, concludes the prosecutor, the Gezi protests aimed to "weaken" the ruling Justice and Development Party (AKP) government and especially Erdogan.

The "Evidence"

A 421-page second section of the indictment entitled "Evidence identified against the suspects" repeats the same assertions about the intention behind Gezi and a master plan to organize it. The evidence presented consists of hundreds of intercepted telephone calls from Kavala and the other defendants; extensive details of their foreign travel, including which flights they took; social media postings; surveillance camera photographs of Kavala meeting various people; and Financial Crimes Investigative Board (MASAK) reports examining the financial transactions of Open Society Foundation (Ack Toplum Vakf) in Turkey and Kavala's Anadolu Kltr organization.

The most striking aspect of the material is that except for the foreign travel records and the financial reports, it all dates either from during or after the Gezi protests. The telephone calls mostly consist of random conversations, some discussing the Gezi protests. As is common with indictments in big political trials in Turkey, the prosecutor has made little effort to explain why so many conversations are included, or which aspects provide evidence of criminal activity. Certain sentences are emphasized in bold or in capitals implying that they are significant, but their significance is neither self-evident nor explained.

Many of the conversations involving Kavala are about internal matters of the Open Society Foundation and Anadolu Kultur, as well as appointments, meetings, and plans for activities such as workshops, a film that was never made, and a television station that was never opened. The prosecutor cites discussions between Aksakolu and Germiyanolu, two of the accused, of civil initiatives to promote non-violent activism and civil disobedience, and of an association to work on those issues that was set up in name only, as evidence of efforts to drag Turkey into further chaos and violence and to perpetuate Gezi rather than idealistic efforts to develop peaceful civic activities and tactics.

The indictment includes no evidence of meetings, phone calls, or other efforts of a conspiracy in advance of Gezi. In just a couple of phone calls, Kavala is heard offering to lend a plastic folding table and in another, he agrees to send some food such as rolls (poaca), fruit juice, and milk, and puzzles over where gas masks might be obtained - unlikely activities for the alleged mastermind of a conspiracy to bring down a government.

In another strand of the narrative, the prosecutor contends that the origins of the Gezi conspiracy go back to November 2011, when Alabora made a short video called "Rise up Istanbul" (Ayaklan Istanbul) in Gezi Park. His July 2012 visit to Egypt, at the same time as an OTPOR activist's, and a play he directed, Mi Minr - a satirical musical about a dictator that ran from December 2012 to April 2013 - are also mentioned as significant steps in planning the Gezi "uprising." The prosecutor's "evidence" indicates that Alabora spoke only once to Kavala, after the Gezi protests were over.

The indictment contains no account of how the defendants might have planned an uprising together or otherwise conspired. It includes no credible details of any plan nor any records of communications between the 16 before the protests. Alabora's previous theatrical projects and records of several of the defendants' foreign travel are the only elements of the indictment related to activity before Gezi, and none of these projects or records amount to evidence of criminal wrongdoing or conspiracy.

The Financial Crimes Investigation Board (MASAK) reports relating to Open Society Foundation in Turkey (Ack Toplum Vakf) and Kavala's organization Anadolu Kltr appear only to show that the foundation financed projects of nongovernmental groups, and that Anadolu Kltr paid salaries and provided stipends and donations. The MASAK reports do not identify any payments that might be evidence of money provided to organize Gezi or even for unidentified purposes.

Indeed, the prosecutor draws no conclusion from the reports beyond pointing out that a few people paid were later subject to criminal investigations or prosecutions and that a few associations were closed down under the state of emergency. In neither case is there any suggestion that the payments by either Open Society or Anadolu Kltr were relevant to the prosecutions or closures. The MASAK reports seem to be included in this indictment only to show who received money from Open Society Foundation in Turkey and Anadolu Kltr. In the absence of any evidence pointing to criminal use of funds, it could be interpreted as serving the political aim of discrediting those who received money from either source.

The third 144-page section, "The actions directed at the complainants, investigative records of visual images, assessment and conclusions," focuses mainly on damage allegedly caused by demonstrators in cities throughout Turkey. There is no direct attempt to link the 16 defendants to the incidents of property damage, including in Taksim Square, but they are nevertheless held responsible for all of it.

The Conclusion

The indictment concludes by arguing that in planning the Gezi "uprising," the defendants were committing a crime that paved the way for later attempts by the Fethullah Glen movement, which the government refers to as FET/PDY. The Turkish government and courts accuse US-based cleric Glen of masterminding the failed military coup in July 2016. The government has dismissed thousands of alleged followers of the movement from the civil service and judiciary and thousands have been jailed pending trial.

The prosecutor states that police officers and a prosecutor allegedly connected with the Glen movement carried out the first investigations into the Gezi protests, describing them as "persons who were later identified as being armed militants from the terrorist organization FETO/PDY which spread like cancer cells in state institutions." According to the indictment, all the evidence and the wiretaps collected were "revalued" (sic) after July 2016, and the authorities had purged "foreign" or "[Glenist] militant" influences. The formulation "revalued" suggests that a new assessment of the evidence after July 2016 showed it in a new light, though no reasons are stated.

Source: Human Rights Watch

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