SEMRA PELEK
Filmmaker and producer Çiğdem Mater faced trial in the Gezi case for an unfilmed movie. Initially acquitted because all phone taps and technical surveillance throughout the case were unlawful. But then, she was later sentenced to 18 years along with other defendants. Mater has been in prison for over 600 days.
In recent months, Turkey has been experiencing a "constitutional crisis." The Constitutional Court ruled in two separate decisions that the rights of TİP Hatay Deputy Can Atalay, whose trial was not halted despite being elected, were violated. The Court of Cassation did not comply with either decision, even going so far as to file a criminal complaint against Constitutional Court members in the first instance and claiming the second decision had "no legal value," accusing the Constitutional Court of "violating the constitution."
The deepening crisis between these two institutions is said to be a result of the ongoing "power struggle" among government partners. However, when it comes to judicial reporting, it's important to avoid speculation about what occurs behind closed doors. We cannot be certain of the accuracy of interpretations of events. Nevertheless, legal experts express disbelief and state that "this is too much." They further suggest that the rule of law is finished.
This statement suggests that the ideological narrative reinforces an unfairness that not only weakens the basis of justice but also worsens an institutional problem, leading to the defendants of the Gezi trial receiving less attention than the individuals listed in the 'complainant' section of the indictment.
In this challenging context, the cases of Osman Kavala, who received a life sentence in the Gezi trial, and Çiğdem Mater, Tayfun Kahraman, and Mine Özerden, sentenced to 18 years, are currently awaiting review at the Constitutional Court. While Osman Kavala has endured six years of imprisonment, Mine Özerden, Can Atalay, Tayfun Kahraman, and Çiğdem Mater have been held in custody for over 600 days. The uncertainty surrounding the duration of their remaining time in prison confines them to expressing their voices solely from behind bars, constrained by the limitations on their right to freedom of expression in this challenging environment.
Freedom of expression is now much less free
Have only the defendants of the Gezi trial been stripped of their freedom of expression rights?
The Gezi trial now stands before society as a specter. The severe sentences handed down at the end of the trial have become a symbol of the deepest and most overt repression against the opposition, the right to assembly and demonstration, and freedom of expression and thought in Turkey over the past decade. Although initially acquitted by acknowledging the unlawfulness of technical surveillance decisions, Osman Kavala, Mücella Yapıcı, Can Atalay, Tayfun Kahraman, Çiğdem Mater, Mine Özerden, Hakan Altınay, Yiğit Aksakoğlu, Yiğit Ali Ekmekçi, and Mine Özerden faced severe sentences in the appellate court. This has created a chilling effect on anyone who speaks out or takes to the streets to claim their rights. Due to this destructive impact, those who want to exercise their fundamental right to freedom of expression now remain silent, knowing that they cannot speak without the threat of legal action. As a result, freedom of expression is now much less free.
In this context, the Gezi trial echoing the message that one can face conviction for a film never brought to life. The incarceration of Çiğdem Mater serves as a stark example - because Çiğdem Mater is in prison for a film she didn't make, a meeting she didn't attend, a social media post unrelated to the case, and a bottle of Gaviscon.
Evidence for the four charges are phone conversations with friends
The evidence presented for the four accusations against Mater mainly consists of phone conversations with friends. In summary, the charges against Mater were:
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An unfilmed movie.
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Attending a meeting held at Garaj Istanbul.
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Turning her office into a clinic.
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Talking about making a social media announcement regarding the Hrant Dink murder case.
Accused of purportedly "aiding the attempt to overthrow the Government of the Republic of Turkey through the use of force and violence" with these four alleged "actions," the gravity of the accusation is undeniable.
However, the supporting evidence appears disproportionally inconsequential. The prosecutor's case relies primarily on Çiğdem Mater's phone conversations with acquaintances, wherein trivial details like guiding Can Atalay on creating a hashtag or receiving laid-back responses such as 'Oh, I can't come there now' and 'I'm sitting at home with my cats on either side of me' are presented as "proof." Beyond these phone discussions, the file includes merely two photographs.
'The fruit of a poisonous tree is also poisonous'
On February 18, 2020, Istanbul Heavy Penal Court No. 30 acquitted 16 defendants of the Gezi Park Trial, including Osman Kavala, Mücella Yapıcı, Can Atalay, Yiğit Aksakoğlu, Tayfun Kahraman, Çiğdem Mater, Mine Özerden, Yiğit Ekmekçi, and Ali Hakan Altınay. The court stated that the wiretapping and technical surveillance warrants that led to their trials were illegal.
The court made the following legal assessment regarding phone taps in its reasoned decision:
"Our file contains 53 wiretap decisions. It is acknowledged that the initial wiretap decision was issued for the crime of 'establishing and managing a criminal organization' and not for the crime of 'offenses against the government.' Subsequently, the offense of 'offenses against the government' was added to the extension requests and decisions, but it was noted that Article 312 was not among the crimes subject to legal wiretapping under Article 135/8 of the Code of Criminal Procedure at that time. There is no wiretap decision issued after that date, and considering the settled case law on the subject and the principle that 'the fruit of the poisonous tree is also poisonous,' it is accepted that the wiretap recordings are evidence that is contrary to the law and legal."
In other words, all the phone conversations and photographs used as evidence against Çiğdem Mater, along with the other defendants, were not legal. They were forbidden evidence and poisonous like the fruit of a poisonous tree.
Nevertheless, the higher court, the 3rd Criminal Chamber of the Istanbul Regional Court of Justice, overturned the acquittals of Osman Kavala, Mücella Yapıcı, Can Atalay, Tayfun Kahraman, Çiğdem Mater, Mine Özerden, Hakan Altınay, Yiğit Aksakoğlu, Yiğit Ali Ekmekçi and Mine Özerden. The trial against these nine defendants was reopened and Çiğdem Mater was put on trial again for four charges.
Claim One: Unproduced movie
The prosecutor claimed that Osman Kavala and Çiğdem Mater had planned to create a film that would “bring attention to the Gezi protests on an international level”, particularly within the artistic community. The ultimate goal was “to intensify the international reaction against the 61st Government of the Republic of Turkey.”
The following evidence was presented in the indictment to support this argument:
1 - Three phone conversations in which Çiğdem Mater talks about her "idea to make a film about the Gezi protests. (However, these phone conversations were obtained illegally. It is worth noting that Çiğdem Mater is a professional filmmaker.).
2- Osman Kavala and Çiğdem Mater to attend the 10th International Golden Apricot Film Festival' held in Yerevan between 7-14 July 2013.
3- Çiğdem Mater's participation in the Sarajevo Film Festival that was held from August 16 to 24, 2013.
In an interview from prison, Çiğdem Mater said the following about this allegation: "That is, from the lowest level to the highest court, the judicial system that sentenced me to 18 years and Osman Kavala to aggravated life imprisonment, found it reasonable and logical that we went to a film festival for a week, watched movies for days, talked about cinema, by the ordinary course of life, just when we were trying to 'overthrow' the government."
Çiğdem Mater spent two years trying to prove that a film was not made, despite the illogicality of the situation. However, on December 28, 2022, the 3rd Criminal Chamber of the Court of Cassation stated that "the idea of making a documentary was abandoned because the Gezi project failed".
In other words, there was no movie, it never happened, and the 3rd Criminal Chamber of the Court of Cassation accepted this, but Çiğdem Mater was not released.
Claim Two: Meeting she did not attend
According to the indictment and the decision of the Supreme Court of Appeals, Çiğdem Mater participated in a meeting that took place in Garaj Istanbul on June 27, 2013. The purpose of this meeting was to expand and strengthen the movement, to spread it to Anatolia.
In the case file, which included the Court of Cassation decision, it was stated that "the physical surveillance minutes confirmed that Çiğdem Mater also attended this meeting."
The only problem is that Çiğdem Mater was in Izmir on the date of the meeting.
Her lawyers submitted travel records to prove her innocence, yet the allegation against Çiğdem Mater was not dropped.
Çiğdem Mater's statement on this issue is as follows:
"The Garaj Istanbul meeting is, in my opinion, one of the most disastrous parts - even if it seems small in the Supreme Court's decision. Of course, it cannot be a crime to attend a meeting, let's put that aside. However, technically, I could not have attended this meeting. The allegation has been in front of me since the indictment and even during the police interrogation. This is because at that time, I was on stage in Izmir as a speaker at a public meeting in a cinema! The Court of Cassation's judgment states that my attendance at this meeting was confirmed by the minutes of physical surveillance! In other words, the Court of Cassation is convinced that I could be in Izmir and Istanbul at the same time."
Claim Three: Turning the office into an infirmary
In the indictment and the Court of Cassation decision, it was argued that Çiğdem Mater "used her office in Asmalı Mescit neighborhood for first aid intervention", "distributed white hygienic masks to the protesters", "asked the protesters if they needed help", "white liquid Gaviscon was in the bottle she handed to the people on the apartment landing that day".
Based solely on two photographs taken by the police from the same place and a conversation between Çiğdem Mater and a friend of hers, the prosecutor claimed that Mater had turned her office into an infirmary.
The evidence presented to support the allegation, which includes photo frames and a phone conversation with a friend, is considered inadmissible according to the Supreme Court of Appeals. This is due to the legal principle known as 'the fruit of a poisonous tree', which states that any evidence obtained through illegal or unethical means is also considered illegitimate.
Even if this is not the case, which law would criminalize the act of giving people a bottle of white liquid Gaviscon or asking them if they need help on the landing of an apartment building?
Claim four: Hrant Dink murder case announcement
In the indictment, a phone conversation between Çiğdem Mater and Osman Kavala on January 13, 2014, is cited as evidence. However, this wiretap is also illegal.
It is clear from the content of the speech that it was delivered before January 19th, as this date is mentioned in the speech and is significant as the anniversary of the death of Hrant Dink, Editor-in-Chief of Agos newspaper..
Mater and her lawyers presented to the file and against the Supreme Court of Appeals that this conversation was about an announcement made on social media accounts regarding the Hrant Dink murder trial. Çiğdem Mater is a member of the Friends of Hrant, who participate in Hrant Dink commemorations. It is natural for her to discuss such commemorations over the phone
However, this evidence was not taken into consideration either by the court during the trial or by the Court of Cassation.
Just like other evidence that was ignored even though it refuted the prosecutor's claims...To summarize, Osman Kavala has been sentenced to life imprisonment and has been in jail for over six years. Çiğdem Mater and other defendants have been sentenced to 18 years in prison and have been incarcerated for nearly two years. The only evidence against them is the poisoned fruit.
