Three international rights groups have called on the Council of Europe to start infringement proceedings against Turkey over the country’s failure to release prominent businessman and philanthropist Osman Kavala from jail in disregard of a ruling from the European Court of Human Rights (ECtHR) to this effect, according to a press release from the Human Rights Watch (HRW) on Monday.
The three nongovernmental organizations — HRW, the International Commission of Jurists and the Turkey Human Rights Litigation Support Project — presented their recommendation in a submission to the Committee of Ministers, the Council of Europe’s intergovernmental body responsible for overseeing the implementation of (ECtHR) judgments. The committee is to review Turkey’s noncompliance with the Strasbourg court’s judgment on Kavala’s case for the fourth time at its March 9-11, 2021 session. Kavala has been held in pretrial detention since November 2017.
“Turkey’s flagrant disregard for the European Court of Human Rights order to release Osman Kavala should trigger the Council of Europe Committee of Ministers to start infringement proceedings against Turkey,” said Aisling Reidy, senior legal adviser at HRW. “It is crucial for the Committee of Ministers, at its March session, to leave the Turkish government in no doubt that European Court of Human Rights judgments are binding on Turkey and that persistent failure to implement the ruling in Osman Kavala’s case constitutes a serious breach requiring exceptional measures.”
The Committee of Ministers may opt to initiate infringement proceedings against a Council of Europe member state that refuses to implement ECtHR judgments. It was used for the first time in 2017 when the government of Azerbaijan continuously refused to secure the unconditional release of a wrongfully jailed opposition politician, Ilgar Mammadov.
Infringement proceedings are provided for under Article 46/4 of the European Convention on Human Rights (ECHR). Their commencement requires the vote of two-thirds of the Committee of Ministers. Once the process is triggered, the case is referred back to the ECtHR for a further opinion on the legally binding obligation to comply. If the court confirms that Turkey has failed to implement the ruling, the Committee of Ministers may then take additional measures, including ultimately suspending Turkey’s voting rights or membership in the Council of Europe.
The Committee of Ministers has already considered the status of Turkey’s compliance with the judgment on multiple occasions, issuing two decisions and, in December 2020, an interim resolution that each strongly urged Turkey to comply with the court’s judgment by unconditionally releasing Kavala.
However, since the December resolution, local courts in Turkey have prolonged Kavala’s detention four more times. A court of appeals overturned his acquittal in the Gezi Park protests trial, and Turkey’s Constitutional Court has also flouted the ECtHR judgment by finding no violation of Kavala’s right to liberty.
“The Kavala case is emblematic of the crisis facing civil society and the rule of law in Turkey,” said Helen Duffy of the Turkey Human Rights Litigation Support Project. “We recognize that infringement proceedings are exceptional, but if there is a case where they are justified, it is this one.
“Turning a deaf ear to the Strasbourg court’s clear order to release and the Committee of Minister’s repeated calls for compliance, Turkey’s government and courts have worked hand in glove to prolong and deepen the crisis and the violation of Mr. Kavala’s rights. Infringement proceedings against Turkey provide the strongest legal mechanism to signal the shame of not complying with ECtHR’s binding judgments.”
The organizations said in their submission that throughout the criminal proceedings against him, judges and prosecutors involved have abused criminal procedural rules to unlawfully extend Kavala’s detention based on allegations that he organized and financed the 2013 Istanbul Gezi Park protests and that he was involved in the July 15, 2016 attempted military coup.
A key aspect of this effort has been the practice of different courts over the three years and four months of Kavala’s detention successively joining, separating and rejoining case files against Kavala to justify prolonging his incarceration.
At the most recent local court hearing against Kavala, on February 5, 2021, the İstanbul 36th Assize Court ruled that the case against him concerning the coup attempt should be joined with the Gezi Park protests case, which is before the Istanbul 30th Assize Court. A hearing of the newly joined cases will take place on May 21.
The organizations said in their submission that the decision to merge the proceedings against Kavala voids Turkey’s repeated argument before the Committee of Ministers that Kavala’s current detention is connected to a separate prosecution not covered by the Strasbourg court judgment. The groups also said the Turkish government needs to address the structural problems raised in the Kavala judgment by revising its action plan to implement the ruling.
“Separating cases or merging them again will not correct the injustice to which Turkey’s courts and government have subjected Osman Kavala for over three years,” said Róisín Pillay, Europe and Central Asia director of the International Commission of Jurists. “This case is part of a systemic practice in which the Turkish courts, which are not independent, apply criminal law and procedures arbitrarily against critics of the government. The action plan needs to address these structural failings in the judicial system.”
The European Court of Human Rights judgment in Kavala v. Turkey is particularly significant because it is the first final ruling of the ECtHR against Turkey in which the court determined that, in interfering with an individual’s rights, the Turkish judicial authorities served ulterior political motivations, contrary to Article 18 of the ECHR.
The court said that by holding Kavala in pretrial detention since November 2017 and prosecuting him, the Turkish authorities had “pursued an ulterior purpose, namely to silence him as human rights defender.” The court found violations of articles 18 and 5 of the ECHR.