Amidst growing fears of a Covid-19 outbreak in its overcrowded prisons, Turkey passed a law on Monday to enable the early release of some 90,000 prisoners — nearly a third of its incarcerated population. The proposed law has appalled Turkish citizens as much as their government’s slow and haphazard response to the pandemic. While it will let 90,000 criminals back on the streets, it won’t extend that amnesty to some 50,000 people held on “terrorism” charges – many of whom are journalists, politicians, rights defenders, and students held as political prisoners. Opposition parties and human rights groups have united in their outrage at the bill’s inherent injustice.
Indeed, in President Recep Tayyip Erdoğan’s relentless crackdown on his critics and opponents, the judicial system has become one of his primary weapons. Police pursue bogus and intrusive investigations, prosecutors issue fanciful indictments, judges frequently disregard due process. The law is used not to bring justice but to oppress and imprison peaceful dissidents. This trend is a key illustration of the breakdown of the rule of law in Turkey – a NATO ally of the United States and until only a decade ago, an advancing democracy.
This is the story of one victim of Turkey’s corrupt judiciary, Osman Kavala, who has been unjustly imprisoned for two and a half years. A businessman and philanthropist, Kavala dedicated much of his life and wealth to promoting liberal democracy through progressive civic initiatives – including art and exhibitions aimed at reconciliation between Turkey’s Muslim-Turkish majority and non-Muslim, non-Turkish minorities. He has never engaged in violence, nor politics. But his peaceful work has made him a nuisance for Erdoğan’s regime, which draws its strength from a polarizing ethno-religious nationalism antithetical to Kavala’s pluralist and democratic vision.
Since Kavala drew Erdoğan’s wrath in 2017, his Kafkaesque journey through Turkey’s legal labyrinth has come to epitomize the fate of so many citizens who have dared to challenge Erdoğan’s authoritarian worldview. This essay attempts to piece together the legal story of Kavala’s persecution by the Turkish state. The aim is to describe as clearly as possible what has been a deliberately opaque, convoluted, and at times incomprehensible saga that sadly has become the norm for those targeted by Erdogan’s judiciary
A baffling arrest
On October 18, 2017, Turkish police took Kavala into custody at the Anti-Terrorism branch of Istanbul’s Security Directorate Headquarters. They said he was detained for questioning for allegedly violating the penal code and threatening national security by
● attempting to overthrow the constitutional order through force and violence (Article 309 of the penal code); and
● attempting to overthrow the government or preventing it from carrying out its duties partially or completely through force and violence (Article 312 of the penal code).
The police accused Kavala of trying to overthrow the constitutional order and the government through two unrelated incidents.
He attempted to topple the government, they argued, by allegedly organizing the mass, nationwide “Gezi Park” protests against Erdoğan in the summer of 2013. Kavala tried to overthrow Turkey’s constitutional order three years later, the police alleged, by supporting a military coup attempt in July 2016. The Turkish government has blamed the coup plot on a religious movement led by cleric Fethullah Gülen, which it designated in May 2016 as the “Fethullahist Terror Organization (FETO).”
These allegations utterly baffled Kavala, not least because the two events in which the police claimed he was involved occurred so long before his detention. In the four and a half years since the Gezi protests, no one had formally accused Kavala of organizing the protests, nor informed him of any investigation into his role. The coup attempt, meanwhile, had taken place a year and a half before, and while Turkish authorities detained some 150,000 people in the subsequent weeks, Kavala, to his knowledge, had not been under any such investigation.
Moreover, the notion that Kavala could have been part of a Gülenist (“FETO”) conspiracy to overthrow the government was on the face of it preposterous. Kavala is a secular Turk with no affiliation to any religious order – particularly one like the Gülen movement that recruits its members mainly from its network of educational institutions, which Kavala did not attend. His liberal political views, meanwhile, clearly contradict the conservative ideas of the Gülen movement.
The accusation that Kavala supported both the Gülen movement and the Gezi movement was outlandish from the outset. The protesters who joined the Gezi demonstrations were diverse, but largely driven by liberal-leaning, pro-democracy groups who are ideologically antithetical to the Gülen movement. In fact, it was an open secret in Turkey that the 2013 protests had largely been crushed by Gülenist members of the police force. Even by the Turkish state’s own logic, how could Kavala be accused of organizing both a coup attempt that was allegedly planned by
Even by the Turkish state’s own logic, how could Kavala be accused of organizing both a coup attempt that was allegedly planned by the Gülen movement and a protest that was crushed by members of this same group?
Despite the clear lack of probable cause, the police decided to keep Kavala in custody for nearly two weeks. Kavala explained that he had no connection to the coup attempt nor to the Gülen movement. He also disputed the police’s claim that he had met with American scholar Henri Barkey in 2016, whom the Turkish government accused of helping to mastermind the coup together with the Gülen movement. Despite Kavala’s adamant denials and the lack of evidence, two weeks later, on November 1, 2017, an Istanbul prosecutor issued a warrant to imprison Kavala for investigation of both charges. The police took the philanthropist to Istanbul’s maximum-security prison in Silivri, reserved for terror suspects, and put him under solitary confinement to await prosecution as a high-risk detainee.
A mysterious investigation and an absurd prosecution
For about a year and a half after his placement in solitary confinement at Silivri prison, Kavala and his lawyers did not know on what basis the prosecutor had connected him to either charge. The prosecutor had issued a secrecy order for the investigation file and did not allow defense lawyers to access it until he had issued an official indictment. Kavala’s lawyers therefore could not prepare any meaningful defense. Not only was the secrecy order a blatant violation of Kavala’s right to self-defense, but his 16-month imprisonment in the meantime was also pushing Turkey’s legal limits on pre-trial detention. The law allows citizens to be kept under pre-trial detention for 18 months, with the possibility of a six-month extension, for a total of two years. Kavala’s lawyers applied to the court several times for his immediate release, which the court rejected each time without any explanation other than that the gravity of accusations against Kavala had made him a high-risk suspect, which justified his detention.
Not only was the secrecy order a blatant violation of Kavala’s right to self-defense, but his 16-month imprisonment in the meantime was also pushing Turkey’s legal limits on pre-trial detention.
Finally, on February 18, 2019, the prosecutor issued an indictment against Kavala and 15 other people in what came to be known as the “Gezi case.” The 657-page document, a fantastical and conspiratorial narrative with no evidence or facts corroborating its grand allegations, absurdly accused all defendants of allegedly conspiring to topple the government through the 2013 Gezi protests (the charge relating to Article 312). Kavala, the so-called mastermind of the conspiracy, was the only defendant in prison.
Critically, the indictment did not connect any of his alleged crimes to the coup attempt of 2016, which was the basis of the prosecutor’s second charge of violating Article 309.
Kavala’s lawyers were not only stupefied by the nonsensical indictment – the conspiratorial nature of which, in addition to a lack of evidence, made it hard to refute its claims with logic and facts – they were also growing all the more frustrated by his continued pre-trial detention. In June 2019 – four months after the prosecutor issued the indictment, and 20 months after Kavala was taken into custody – the court finally commenced the first hearing of the so-called Gezi trial.
The trial itself, with six hearings held between June 2019 and February 2020, proved to be no less a charade than the pre-trial legal process. For example, the first three hearings—in June, July, and October 2019—each had a different panel of three presiding judges, with no explanation as to why the court decided to shuffle the judges. (For more on the courthouse controversies in the Gezi trial, see here.)
Meanwhile, as Kavala continued to await in prison for the verdict in the Gezi trial, he also remained in “pre-trial” detention for the coup-attempt charge (Article 309). Yet, the Turkish state never actually managed to produce an indictment against Kavala for the coup attempt and made no other moves toward holding a trial on this charge. Finally, on October 11, 2019, just days before the two-year anniversary of his arrest, the prosecutor dropped Kavala’s coup-attempt arrest warrant under Article 309. This allowed the state to avoid exceeding Turkey’s two-year limit on pre-trial detention, but underscored the hollowness of the coup-attempt investigation—and the unjust and entirely political nature of Kavala’s detention under that baseless charge.
A short-lived acquittal
The Gezi prosecution finally ended on February 18, 2020, with the unexpected acquittal of Kavala and the other eight defendants who had attended the trial in person. (The court separated the case of seven defendants who had been abroad throughout this time and thus did not attend the trial.) The verdict was stunning: after years of protesting the absurdity of the prosecutor’s allegations, the defendants were incredulous that the court finally seemed to concur. Why, then, had the court continued the case – and kept Kavala imprisoned – all this time, only to now conclude that the prosecution lacked evidence? The verdict was surely a victory for the defendants. But having witnessed a mockery of justice for eight months, they no longer had any confidence in the Turkish judiciary.
All of the exonerated defendants walked out of the courtroom free – except Kavala, the only defendant who had been in prison throughout the trial. The authorities took him back to Silivri to wait until the court delivered its release order to the prison. Still, Kavala was at peace; despite all of the cruelty he had endured, it seemed that justice had finally prevailed. It was around 3:00 p.m., and his lawyer reckoned that he would leave the prison by 6:00 p.m. After his two-and-a-half year nightmare, he was just three hours away from regaining his freedom. Kavala sat in his cell and patiently ate the salad his lawyer had brought for him, chatting about the two snails that had snuck into the lettuce. He would soon go back to his home, family, and normal life he missed so dearly.
All of the exonerated defendants walked out of the courtroom free – except Kavala, the only defendant who had been in prison throughout the trial.
By 8:00 p.m., he began to grow anxious. Half an hour later, the prosecutor made a public statement, a rare occurrence, calling Kavala a national security threat and protesting his exoneration. Within minutes, the police came to escort Kavala back to the Security Directorate Headquarters, the very building where his nightmare had begun 28 months earlier, in October 2017.
Kavala spent the night of his acquittal at the Security Directorate. The next morning, the police took him to Istanbul’s main courthouse. Soon after a judge approved the prosecutor's new order of imprisonment under an “ongoing criminal investigation” regarding Kavala’s violation of Article 309, the police took him back to the Silivri prison and back to solitary confinement.
Kavala’s lawyers were now sure that the government was playing tricks to keep their client in prison. The “new” investigation was in fact the same one under which the police had originally apprehended Kavala in October 2017 – and from which the court had released him in October 2019. Given the time he had already spent in jail under this case, Kavala’s lawyers argued that their client would reach the two-year limit of pre-trial detention under that investigation within a week from his February 18 acquittal – and that he must therefore be released on February 25, 2020, according to Turkish law.
Moreover, the new imprisonment order contradicted the prosecutor’s own case file on Kavala’s alleged involvement in the coup attempt. In the order, the prosecutor wrote that his office had determined that Kavala and Barkey, a suspect in the same investigation, had met twice before the July 15, 2016, coup attempt, allegedly to plot a government overthrow
● at Kavala’s private company Menka, located in Istanbul’s Sisli district, on June 27, 2016; and
● in Turkey’s Diyarbakir province on June 30, 2016.
The police had in fact already interrogated Kavala about those meetings back in October 2017, when they first took him into custody. The “technical evidence” the police had gathered, they had said at the time, showed that Kavala had traveled to Diyarbakir on June 27, 2016, and returned to Istanbul that same evening. And Barkey, they told him, was in Diyarbakir on June 30, 2016. That information clearly contradicts the assertions in the prosecutor’s February 2020 imprisonment order about Kavala and Barkey’s alleged Istanbul and Diyarbakir meetings.
The sloppiness of the prosecutor and the judge’s hasty approval of his order show the lack of due process that has become pervasive in the Turkish judicial system.
Circumventing international law: Kavala’s third arrest
As Kavala’s lawyers noted these contradictions and awaited Kavala’s release from the coup charge based on the maximum pretrial detention deadline, the court on March 9, 2020, brought a new, similarly ludicrous charge against Kavala: committing espionage for the the United States by allegedly sharing confidential Turkish government information with Barkey, an American. He was now accused of a new article of the penal code:
● Article 328 of the Penal Code: committing political and military espionage.
This new charge reset the clock on Kavala’s pre-trial detention period, as Kavala was now imprisoned under a different case from the two charges for which he had already spent his two-year detention. This underhanded move allowed the judge to remand Kavala under Turkish law – and keep him in prison for up to two more years while the prosecutor supposedly “investigated” him on another unfounded charge.
This new charge reset the clock on Kavala’s pre-trial detention period, as Kavala was now imprisoned under a different case from the two charges for which he had already spent his two-year detention.
Perhaps more significant, redefining the same case under a new charge allowed the prosecutor to circumvent a December 2019 ruling by an international court, the European Court of Human Rights (ECHR), on his unjust detention. Turkey, as a member of the Council of Europe, is bound to accept the authority of the ECHR to enforce the European Convention on Human Rights. As such, Turkish courts must follow the rulings of the ECHR, just as they would follow Turkey’s own higher courts.
In June 2018, after Turkish courts repeatedly refused to release Kavala, his legal team brought a case to the ECHR, arguing that his detention was unlawful and unjust. The ECHR agreed to hear the case, and in a significant development on December 10, 2019, ruled in Kavala vs. Turkey that his more than two-year imprisonment was indeed unlawful and demanded Kavala’s immediate release. Unfortunately, however, the Turkish court refused to release Kavala. Seemingly stalling for time to keep him imprisoned, the court argued that it would implement the ECHR verdict when it became “final” on March 10, 2020. Then, just one day shy of the ECHR deadline, Turkey managed to avoid implementing it by issuing a new order of arrest through Article 328. This move was part of a troubling pattern in recent years of Turkey finding ways to avoid abiding by ECHR rulings involving political detainees.
Now that the prosecutor had refashioned his old investigation into a brand new charge, he no longer needed to accuse Kavala of aiding the coup attempt. On March 20, the prosecutor dropped his arrest warrant for Kavala under Article 309.
This move was part of a troubling pattern in recent years of Turkey finding ways to avoid abiding by ECHR rulings involving political detainees.
Same investigation, new allegations
Not only did the new espionage charge enable Kavala’s continued detention – now in its 29th month – but the charge itself was as absurd as the two previous accusations the prosecutor had brought against Kavala. As justification for Kavala’s alleged espionage activities, for example, the prosecutor argued that Kavala and Barkey had been “in contact” before the failed coup attempt of July 15, 2016. As evidence of these contacts, he submitted records of several occasions between November 27, 2014, and July 18, 2016, on which Kavala’s and Barkey’s mobile phones sent signals to the same cell phone tower.
These records were not news to Kavala, nor his lawyers; the prosecutor had also used the same records as evidence when Kavala had been taken into custody in October 2017 under the coup-attempt investigation. When Kavala’s lawyers challenged those claims, the court had then requested an analysis of Historical Traffic Search (HTS) records from the police, which clearly stated that no phone calls had been detected between Kavala and Barkey between 2010 and 2017 – proving that the two men had not been in contact via phone. In his defense, Kavala also explained to the judge that his office, located just north of Istanbul’s central Taksim square, was surrounded by several major hotels – and that it would therefore be only natural for his phone to send signals to the same base station as many international visitors in that region.
In addition to this technical evidence undercutting the prosecutor’s baseless allegations about Kavala and Barkey, Kavala also disputed the central premise of the espionage charges against him. He told the court that it was impossible for him to access any confidential government information, as he was a civil society leader who had no contact with government officials – let alone high-level officials who would possess confidential information.
Those who run Turkey’s judiciary appear beholden not to the rule of law but to Erdoğan and his desire to punish Kavala (and thousands of others).
By now, it has become clear to Kavala that Turkey’s all-powerful president, and the judicial system that is beholden to him, has no intention of letting him go free anytime soon, regardless of his acquittal and the complete absence of evidence for the new espionage charge. The progressive philanthropist will remain behind bars for the foreseeable future. Those who run Turkey’s judiciary appear beholden not to the rule of law but to Erdoğan and his desire to punish Kavala (and thousands of others). The absurd and tragic process to which Kavala has been subjected for almost three years lays bare the weaponization of the judicial system by Erdoğan’s presidency. It is yet another troubling sign of how Turkey, a longstanding NATO ally that merely a few years ago aspired to join the European Union, has moved away from transatlantic values.
As Turkey’s democratic allies in the United States and the European Union contemplate their relationship with the increasingly authoritarian government in Ankara, they must take note of the case of Osman Kavala, a man who dedicated his life to helping Turkey adopt the principles and values that many Turkish citizens share with their western neighbours. Kavala’s plight is not only a case study of the kind of authoritarianism to which Erdoğan subscribes; it is also a cause that Turkey’s allies must urgently take up to help turn the tide in a country that once was on a promising trajectory toward a full democracy, and could again become so.