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MINISTERS’ DEPUTIES |
Notes on the Agenda |
CM/Notes/1451/H46-40 |
8 December 2022 |
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1451st meeting, 6-8 December 2022 (DH) Human rights
H46-40 Kavala v. Türkiye (Application No. 28749/18) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2022)1079; DH-DD(2022)1094; DH-DD(2022)1166; CM/Del/Dec(2022)1446/H46-1 |
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Application |
Case |
Judgment of |
Final on |
Indicator for the classification |
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11/07/2022 (46§4) |
Grand Chamber |
Case description
The applicant in the Kavala case was arrested on 18 October 2017 and placed in pre-trial detention, accused of attempting to overthrow the government within the context of the Gezi Park events of 2013 (Article 312 of the Turkish Criminal Code (TCC)) and to overthrow the constitutional order within the context of the attempted coup in July 2016 (Article 309 TCC).
The Court found on 10 December 2019 thatthis arrest and pre-trial detention took place in the absence of evidence to support a reasonable suspicion he had committed an offence (violation of Article 5 § 1 of the Convention) and also that they pursued an ulterior purpose, namely to silence him and dissuade other human rights defenders (violation of Article 18 taken in conjunction with Article 5 § 1). The Court in addition held that the length of time taken by the Constitutional Court to review the applicant’s complaint about his detention (one year, four months and 24 days) was insufficiently “speedy”, given that his personal liberty was at stake (violation of Article 5 § 4).
The Court indicated under Article 46 that the nature of the violation left no real choice as to the measures required to remedy it, and that any continuation of the applicant’s pre-trial detention would entail a prolongation of the violation of Article 5 § 1 and of Article 18 in conjunction with Article 5 § 1, as well as a breach of the obligations on respondent States to abide by the Court’s judgments in accordance with Article 46 § 1 of the Convention. It therefore held that the government was to take every measure to put an end to the applicant’s detention and to secure his immediate release.
However, the applicant was not released, and the Committee thus referred to the Court, in accordance with Article 46 § 4 of the Convention, the question whether Türkiye had failed to fulfil its obligation under Article 46, paragraph 1, with particular regard to the Court’s indication under Article 46 and the individual measures required.
In the Kavala (Article 46 § 4) judgment, issued on 11 July 2022, the Grand Chamber found that Türkiye had failed to fulfil its obligation under Article 46 § 1. The Court considered that the measures indicated by Türkiye did not permit it to conclude that the State Party had acted in “good faith”, in a manner compatible with the “conclusions and spirit” of the Kavala judgment, or in a way that would make practical and effective the protection of the Convention rights which the Court found to have been violated in that judgment.
Status of execution
Individual measures
Developments in the domestic proceedings
On 25 April 2022, the Assize Court convicted the applicant and sentenced him to aggravated life imprisonment for attempting to overthrow the government by force (Article 312 of the TCC) and acquitted him of the charges under Article 328 concerning espionage. The applicant’s appeal against conviction and sentence is pending before the Regional Appeal Court. At the same hearing the Assize Court ordered the applicant’s detention following conviction. The applicant’s subsequent appeal against the detention order was dismissed by the domestic courts.
On 9 June 2022, the applicant lodged an application with the Constitutional Court complaining about the unlawfulness of his detention following conviction. These proceedings are also pending.
In reply to the Committee’s request in its decision of September 2022 (see below), the authorities reported (DH-DD(2022)1094) that the applicant’s current detention was subject to review before the İstanbul Regional Court of Appeal, where the appeal proceedings concerning his conviction and sentence are pending. Once a decision is issued by the Istanbul Regional Court of Appeal, the case may be brought before the Court of Cassation either ex officio or by the applicant and/or the prosecution office, as a further appeal against conviction and sentence and for review of the applicant’s detention. The average length of such proceedings varies depending on the complexity of the case. Proceedings before regional appeal courts lasted an average of 312 days in 2020 and 235 days in 2021, and proceedings before the 3rd Criminal Chamber of the Court of Cassation, which has jurisdiction over criminal matters pertaining to offence attributed to the applicant under Article 312 of the TCC, was 150 days in 2020 and 110 days in 2021. The average length of individual application proceedings before the Constitutional Court in cases concerning the “right to personal liberty and security” is 472 days. However, the authorities underlined that these are averages and that the appeals and applications of persons in detention were accorded priority by all three courts.
Action taken by the Committee of Ministers, its Chair and other Council of Europe bodies
The Committee continues to examine the case at each of its regular and DH meetings.
On 11 July 2022, the former Chair of the Committee of Ministers, the President of the Parliamentary Assembly, and the Secretary General made a joint statement, urging Türkiye, as a Party to the Convention, to take all necessary steps to implement the judgment. They further stressed that this matter will remain under the supervision of the Committee of Ministers until the judgment is fully implemented.
At its 1440th meeting (13 July 2022), the Committee referred to the conclusions of the Court’s Grand Chamber judgment under Article 46 § 4 of 11 July 2022 and urged the authorities to ensure that Mr Kavala is released immediately.
At its 1443rd meeting (20-22 September 2022) (DH) the Committee, inter alia called upon all member States, the Secretary General, as well as other relevant Council of Europe bodies and Observer States, to intensify their high-level contacts with Türkiye. It encouraged the Chair of the Committee of Ministers to consider further action to ensure appropriate oversight of this case and to discuss with the President of the Parliamentary Assembly of the Council of Europe further steps that could be taken by the Committee. At the same meeting the Committee also invited the Turkish authorities to provide information on the pending domestic procedures including indicative average timeframes.
On 10 October 2022, the Parliamentary Assembly of the Council of Europe’s (PACE) Committee on the Honouring of Obligations and Commitments by member States authorised two co-rapporteurs to carry out a fact-finding visit to Türkiye in the near future and took note of their intention to request a meeting with Mr Osman Kavala, as a follow up to Resolution 2459 (2022).
On 12 October, the former Chair of the Committee of Ministers reported to the Parliamentary Assembly’s Autumn session on high-level meetings held with his counterpart, the Minister of Foreign Affairs of Türkiye, to discuss the case.
In line with the Committee’s decisions adopted at the September (DH) meeting encouraging the Chair to consider further action to ensure appropriate oversight of this case, at their 1446th meeting (19 October 2022), the Deputies decided to appoint a Liaison Group of Ambassadors to assist the Chair in engaging with the Turkish authorities regarding the implementation of the judgment in the Kavala case (CM/Del/Dec(2022)1446/H46-1). During its 1448th meeting (16 November 2022), the Committee appointed four representatives to the Liaison Group of Ambassadors.
On 25 November 2022, the Chair of the Committee of Ministers held a meeting with the President of the PACE and discussed further steps that could be taken by the Committee if the applicant remains in detention.
On 28 November 2022, the Liaison Group of Ambassadors met the applicant’s representatives, who provided an overview of the various procedures at domestic level and a summary of the current appeals. The Liaison Group informed the applicant’s representatives about the possibility of high-level technical contacts with the authorities, with a view to paving the way for possible contacts by the Group itself with the authorities in Türkiye.
Rule 9.1 communications from the applicant (DH-DD(2022)1079; DH-DD(2022)1324)
Referring to the Court’s Article 46 § 4 judgment, the applicant argued that it was clear, particularly with regard to § 172 of the judgment, that he should be immediately released and acquitted of all charges with respect to the Gezi Park events and the attempted coup.
He informed the Committee that the written submissions phase of the proceedings before the Constitutional Court is completed, but that in their submissions to the Constitutional Court, the Turkish authorities had not mentioned the Article 46 § 4 judgment. He also reported that the Regional Appeal Court had registered his appeal on 26 September 2022, but had notified him of three counter-appeals: by an individual complaining of damage to his apartment allegedly caused by the applicant as a result of protests in Adana;[1] and by the Office of the Turkish Presidency, together with the Ministry of Finance, appealing against the applicant’s acquittal of the charge of political espionage.
The applicant finally underlined that it was of crucial importance that all the relevant judicial authorities were provided with comprehensive information about the Article 46 § 4 judgment, the Committee’s decisions and Türkiye’s obligations under Article 46 of the Convention.
In their replies (DH-DD(2022)1166 and DH-DD(2022)1359), the Turkish authorities recalled that on 25 April 2022 the İstanbul 13th Assize Court had sentenced the applicant to aggravated life imprisonment and ordered his detention following conviction, and that the proceedings were pending before the Istanbul 3rd Regional Court of Appeal. They further recalled that on 9 June 2022, the applicant had lodged an individual application before the Turkish Constitutional Court complaining about his current detention. They made their submissions to the Constitutional Court on 24 August 2022. The authorities maintained that proceedings before the Constitutional Court have an adversarial nature and the applicant could submit his counter arguments in response to the authorities’ submissions. They further reiterated their arguments that findings of the Court were based on Article 5 of the Convention, rather than Article 6, and thus the applicant’s request as to the acquittal was legally groundless.
The authorities lastly explained that under Article 237 of the Code of Criminal Procedure, individuals and legal persons who claim to have suffered damage due to an offence may request to intervene in criminal proceedings in a given case. Under Article 242 of the same Code, those who intervened in proceedings before the trial court are also entitled to appeal against the judgment. In this context several appeals by intervening parties had been lodged with the Regional Appeal Court in the proceedings against the applicant.
General measures
The Committee urged the authorities to take legislative and other measures to ensure the full independence and impartiality of the Turkish judiciary, including from the executive branch, taking inspiration from Council of Europe standards, in particular as regards the structural independence of the Council of Judges and Prosecutors.
No information has been submitted in respect of the general measures.
Analysis of the Secretariat
Individual measures
It is recalled that in its Article 46 § 4 judgment (§ 145), the Court held, inter alia, that it followed that its finding in the first Kavala judgment of a violation of Article 5 § 1, read separately and in conjunction with Article 18, “vitiated any action resulting from the charges relating to the Gezi Park events and the attempted coup”.
Under the heading “final conclusion”, the Court repeated this finding with an explicit reference to the applicant’s conviction on 25 April 2022 (see in particular § 172 below):
“169. The whole structure of the Convention rests on the general assumption that public authorities in the member States act in good faith. That structure includes the supervision procedure and the execution of judgments should also involve good faith and take place in a manner compatible with the “conclusions and spirit” of the judgment. Moreover, the importance of the good faith obligation is paramount where the Court has found, as in the present case, a violation of Article 18, the object and purpose of which is to prohibit the misuse of power.
171. Following the approach set out in paragraphs 131-135 above, the Court has examined the text of the Kavala judgment and the corresponding obligations of State responsibility (see paragraphs 140-148 above). It has then considered the measures taken by Türkiye and the assessment of these measures by the Committee of Ministers in the execution process, and also the position of the respondent Government and Mr Kavala’s submissions. It notes that Türkiye has taken some steps towards executing the above-cited judgment and has also presented several Action Plans (see paragraphs 85-87 above). It notes, however, that on the date on which the Committee of Ministers referred the matter to it, and in spite of three decisions ordering his release on bail and one acquittal judgment, Mr Kavala had still been held in pre-trial detention for more than four years, three months and fourteen days, on the basis of facts which, in its initial judgment, it had held to be insufficient to justify the suspicion that he had committed “any criminal offence” and which were “largely related to the exercise of Convention rights” (ibid., § 157).
172. These considerations are crucial in the present case, particularly since, on 25 April 2022, Mr Kavala was acquitted of the charge of military or political espionage under Article 328 of the Criminal Code, but convicted of the charge under Article 312 of the Criminal Code. Mr Kavala was also sentenced to the heaviest penalty under Turkish criminal law, namely aggravated life imprisonment. It is clear from the verdict delivered on 25 April 2022 that this conviction was based on facts primarily related to the Gezi Park events, which the Court had scrutinised with particular care in its initial judgment on account of the clear absence of reasonable suspicion. Admittedly, the Assize Court’s verdict, delivered subsequent to the referral to the Court and which is not final, does not affect the Court’s findings as set out above (see, mutatis mutandis, Ilgar Mammadov (infringement proceedings), cited above, § 212). The Court would, however, reiterate that its finding of a violation of Article 18 taken together with Article 5 in the Kavala judgment had vitiated any action resulting from the charges related to the Gezi Park events and the attempted coup (see paragraph 145 above). It is nonetheless clear that the domestic proceedings subsequent to the above judgment, which resulted first in an acquittal and then a conviction, have not made it possible to remedy the problems identified in the Kavala judgment.
173. In the light of the conclusions it has set out above, the Court considers that the measures indicated by Türkiye do not permit it to conclude that the State Party acted in “good faith”, in a manner compatible with the “conclusions and spirit” of the Kavala judgment, or in a way that would make practical and effective the protection of the Convention rights which the Court found to have been violated in that judgment.
174. In response to the question as referred to it by the Committee of Ministers, the Court concludes that Türkiye has failed to fulfil its obligation under Article 46 § 1 to abide by the Kavala v. Turkey judgment of 10 December 2019.”
It is therefore a matter of the very deepest regret and concern that, almost five months after the delivery of the Court’s Article 46 § 4 judgment, the applicant remains in detention.
It is also of concern that, in their submissions to the Committee, the authorities continue to dispute the Court’s clear and unequivocal findings, as well as the Committee’s decisions, and insist that the applicant’s current detention, following his conviction, falls outside the scope of the Court’s two judgments.
The Committee should therefore again underline the clear obligation under Article 46 § 1 of the Convention of all competent Turkish authorities, in the light of the Court’s findings, to eliminate all the negative consequences of the criminal charges brought against the applicant, in particular by ensuring that he is immediately released. As a member of the Council of Europe, it is as much a responsibility of Türkiye to protect the credibility of the Convention system as any other member State.
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Financing assured: YES |