7 December 2023

1483rd meeting, 5-7 December 2023 (DH)


H46-37 Kavala v. Türkiye (Application No. 28749/18)

Supervision of the execution of the European Court’s judgments

Reference document




The Deputies

1.         recalled the Court’s findings in the Kavala v. Turkey judgment of 10 December 2019, that the applicant’s 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 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); and that the one year and nearly five months taken by the Constitutional Court to review his complaint was insufficiently “speedy”, given that his personal liberty was at stake (violation of Article 5 § 4); together with the Court’s indication under Article 46 of the Convention that any continuation of the applicant’s pre-trial detention would entail a prolongation of the violations of Article 5 § 1, and of Article 18, as well as a breach of the obligations on the respondent State to abide by the Court’s judgment in accordance with Article 46 § 1, of the Convention, and that in consequence Türkiye was required to take all necessary measures to put an end to the applicant’s detention and to secure his immediate release;

2.         recalled further that the Court delivered its judgment under Article 46 § 4 on 11 July 2022 concluding, inter alia, 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 and that the domestic proceedings, which resulted in the applicant’s conviction, had not made it possible to remedy the problems identified in the Kavala judgment; and therefore that Türkiye had failed to fulfil its obligation under Article 46 § 1 to abide by the Kavala v. Turkey judgment of 10 December 2019;

3.         noted that, under Article 46 § 5 of the Convention, when the Court finds a violation of Article 46 § 1, the case is referred back to the Committee of Ministers for consideration of the measures to be taken;

As regards individual measures

4.         expressed profound regret that the applicant’s conviction for charges under Article 312 of the Criminal Code for attempting to overthrow the government, and his sentence of aggravated life imprisonment became final, despite the European Court’s findings that the criminal proceedings against him constituted a misuse of the criminal justice system, undertaken for the purpose of reducing him to silence, and also despite the Committee’s numerous calls urging for the applicant’s immediate release;

5.         recalling the Court’s well-established case-law that the finding of a violation of Article 18 in conjunction with Article 5 § 1 vitiates any subsequent action resulting from the imposition of the abusive charges, including the applicant’s conviction and imprisonment, underlined that the applicant’s ongoing detention as a convicted prisoner continues to violate the Convention;

6.         recalling further that the applicant has two separate complaints pending before the Constitutional Court which has the competency to put an end to his detention, strongly exhorted, once again, all the relevant Turkish authorities to ensure that Türkiye’s obligations under the Convention and its Constitution are honoured by ensuring the applicant’s immediate release;

7.         in line with the strengthening of dialogue in the event of difficulties in the implementation of judgments foreseen in the Reykjavik Declaration, urged the authorities to hold high level technical contacts with the Secretariat before the March 2024 (DH) meeting and engage in constructive and results-oriented dialogue with a view to identifying the means available within the domestic system to ensure the applicant’s immediate release;

As regards general measures

8.         underlined that the Court’s findings under Article 18 in conjunction with Article 5 § 1 in the Kavala and Selahattin Demirtaş (No. 2) judgments, supported by the findings of other Council of Europe bodies, reveal pervasive problems regarding the independence and impartiality of the Turkish judiciary;

9.         strongly urged, once again, the authorities to take all necessary measures to address these problems, in particular by securing the structural independence of the Council of Judges and Prosecutors (CJP) from the executive, and expressed the readiness of the Secretariat to provide assistance to this end.